A-618-89
Berl Baron (Appellant)
v.
Her Majesty the Queen and the Attorney General
for Canada and the Honourable Otto Jelinek in
his capacity as Minister of National Revenue
(Respondents)
A-619-89
Berl Baron and Howard Baron, C.A. (Appellants)
v.
Her Majesty the Queen and the Attorney General
for Canada and the Honourable Otto Jelinek in
his capacity as Minister of National Revenue
(Respondents)
A-620-89
Berl Baron (Appellant)
v.
Her Majesty the Queen and the Attorney General
for Canada and the Honourable Otto Jelinek in
his capacity as Minister of National Revenue
(Respondents)
A-621-89
Berl Baron and Howard Baron, C.A. (Appellants)
v.
Her Majesty the Queen and the Attorney General
for Canada and the Honourable Otto Jelinek in
his capacity as Minister of National Revenue
(Respondents)
INDEXED AS: BARON V. CANADA (CA.)
Court of Appeal, Pratte, Marceau and Hugessen
JJ.A.—Ottawa, February 14, 1991.
Practice — Judgments and orders — Reversal or variation
— Application for order to correct formal judgment herein
01991J 1 F.C. 688) pursuant to R. 337(5) — Judgment
ordering respondents to return forthwith to appellants 'every-
thing that was seized under the authority of the said warrants"
— Paragraph corrected by adding: "as well as extracts and
copies thereof' — As to return or destruction of all summar
ies, copies, notes or diagrams based on things seized, present
motion not occasion to test Court's remedial powers when
setting aside search as contrary to Charter since evidentiary
basis for proper determination lacking and appellants' conduct
such that discretionary remedy would not be granted
Application allowed in part.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44].
Federal Court Rules, C.R.C., c. 663, R. 337(5).
Income Tax Act, S.C. 1970-71-72, c. 63, s. 231.3 (as am.
by S.C. 1986, c. 6, s. 121).
CASES JUDICIALLY CONSIDERED
APPLIED:
Lagiorgia v. Canada, [1987] 3 F.C. 28; (1987), 35
C.C.C. (3d) 445; 16 C.P.R. (3d) 74; 57 C.R. (3d) 284;
[1987] 1 C.T.C. 424; 87 DTC 5245; 77 N.R. 78 (C.A.).
COUNSEL:
Guy Du Pont and André Serero for
appellants.
Pierre Loiselle, Q.C. for respondents.
SOLICITORS:
Phillips & Vineberg, Montréal, for appel
lants.
Deputy Attorney General of Canada, for
respondents.
The following are the reasons for order ren
dered in English by
HUGESSEN J.A.: On November 28, 1990 we
allowed these appeals [[1991] 1 F.C. 688] and set
aside the judgments rendered by the Trial Division
[[1990] 2 F.C. 262]. In three cases (Court files
A-618-89, A-619-89, A-620-89) we substituted for
the judgment of the Trial Division a judgment
quashing the relevant search warrants and "order-
ing the respondents to return forthwith to the
appellants everything that was seized under the
authority of the said warrants". In the fourth case
(A-621-89), in addition to the foregoing, we also
issued a declaration that section 231.3 of the
Income Tax Act [S.C. 1970-71-72, c. 63 (as am.
by S.C. 1986, c. 6, s. 121)] is of no force and
effect.
The appellants now move, pursuant to Rule
337(5) [Federal Court Rules, C.R.C., c. 663], to
correct the formal judgment by adding to and
immediately after the paragraph dealing with the
return of everything that was seized, the following:
... as well as all extracts and copies thereof; and
that the Respondents return forthwith to the Appellant all
summaries, notes or diagrams taken from the documents,
books, records, papers or other items seized by the Respondents
under the authority of the said search warrants;
order the destruction of all summaries, copies, notes or dia
grams which have not been returned by the Respondents for
whatsoever reason;
With regard to the first proposed correction, the
respondents concede that they understand our
judgment as extending to copies and extracts of
the seized materials. Since such an understanding
is, in any event, in accordance with this Court's
decision in Lagiorgia v. Canada, [1987] 3 F.C. 28,
the appellants are entitled to the requested
correction.
The second requested correction raises a very
different issue and is contested by the respondents.
In my view, they are right to do so. Appellants
here are seeking to modify the judgment by adding
thereto an order for the return or destruction, not
only of the things seized and actual copies or
extracts thereof, but also of any summaries, notes
or diagrams based thereon. By definition, such
summaries, notes or diagrams must be different
from simple extracts or copies of the things seized
and must contain some component, great or small,
which has its source elsewhere. That source may
be limited to the intellect of the person preparing
the summaries, notes or diagrams or may extend
far beyond it to other materials legitimately
obtained some of which, it may be, cannot and
should not be revealed.
In my opinion, this is not the case and a motion
of this kind is not the occasion to test the limits of
the Court's remedial powers when it sets aside a
search as having been made contrary to the Chart
er [Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982,
Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, No. 44]]. I say this
for two reasons.
First, the evidentiary basis for a proper determi
nation is lacking. We do not know what summa
ries, notes or diagrams may or may not have been
prepared or by whom. We cannot tell to what
extent they rely on the improperly seized materials
and to what extent they rely on other sources. We
do not know what such sources may be. In such
circumstances it is not possible for us to decide
with full knowledge of the reach of our decision.
Second, this is clearly a case where any remedy
is at the discretion of the Court. In my view, the
appellants' own conduct leaves much open to ques
tion. The warrants which we have ordered set aside
were issued on August 7, 1986 and were executed
one day later. The present proceedings seeking to
set aside those warrants were instituted on June
21, 1989, nigh on three years later. To require the
respondents to sift through all the material gener
ated in the intervening period which may, in some
way, be based upon the improperly seized docu
ments would in the circumstances be an improper
imposition. I would exercise my discretion against
granting the additional relief sought.
I would allow the application in part only and
without costs. I would correct the formal judg
ments herein by adding after the word "warrants"
in the second line of the second paragraph the
words "as well as all extracts and copies thereof".
PRATTE J.A.: I agree.
MARCEAU J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.