Supreme Court of Canada

Goodman v. Rompkey et al., [1982] 1 S.C.R. 589

Date: 1982-05-10

Bernard Goodman, C.A. Appellant;

and

The Honourable William Rompkey and the Attorney General of Canada Respondents.

File No.: 16717.

1982: February 24; 1982: May 10.

Present: Laskin C.J. and Ritchie, Dickson, Beetz, Mclntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Headnote

Income tax—Authorization of Minister of National Revenue to enter, search and seize—Approval given by a Superior Court judge—No right of appeal from approval to Court of Appeal—Income Tax Act, 1970-71-72 (Can.), c. 63, s. 231(4),(5)—Code of Civil Procedure, arts. 25, 26, 29.

A judge of the Superior Court gave his approval to an authorization to enter and seize pursuant to s. 231 (4) of the Income Tax Act. The search was designed to obtain documentary evidence of offences allegedly committed by the appellant. An appeal from the approval was filed in the Court of Appeal, which dismissed it on the ground that no appeal could lie from the judgment. Hence the appeal to this Court on whether an appeal lies to the Court of Appeal for Quebec from the approval of a judge of the Superior Court.

Held: The appeal is dismissed.

No appeal lies to the Court of Appeal from the approval pursuant to art. 26 C.C.P. as it does not constitute a final judgment of the Superior Court. Search and seizure does not constitute a proceeding in itself; the approval merely permits the search and seizure authorized by the Minister to be made, it entails neither a sentence against the appellant nor a ruling on his rights. As to the inherent power which the Court of Appeal is said to have to reform a judgment of the Superior Court when the latter exceeds its jurisdiction—assuming that this power exists—it does not apply in the case at bar. The judge gave his approval in light of an affidavit stating in great detail the reasonable grounds on which the Minister had to believe that offences had been committed; it was not shown that he exceeded his jurisdiction in doing so.

Minister of National Revenue v. Coopers and Lybrand, 1978 CanLII 13 (SCC), [1979] 1 S.C.R. 495; Welch v. The King,

[Page 590]

1950 CanLII 8 (SCC), [1950] S.C.R. 412; Ville de Jacques-Cartier v. Lamarre, 1957 CanLII 86 (SCC), [1958] S.C.R. 108; Ace Holdings Corporation et al. v. Montreal Catholic School Board, 1971 CanLII 165 (SCC), [1972] S.C.R. 268; Deputy Attorney General of Canada v. Brown, 1964 CanLII 48 (SCC), [1965] S.C.R. 84; Di Zazzo v. Cité de Saint-Léonard, [1976] C.A. 509; Fonds d’indemnisation des victimes d’accidents d’automobile v. Langlois, [1974] C.A. 535; Syndicat des employés de transport Dumont (CSN) v. Nap. Dumont Ltée, [1978] C.A. 530; Cité de Montréal v. Hénault (1919), 1919 CanLII 353 (QC CA), 26 R.L. 270; Dostaler v. Lalonde (1919), 29 Que. K.B. 195; R. v. Labrie et Malépart (1920), 31 Que. K.B. 47; Desrochers v. Perron (1930), 48 Que. K.B. 427; City of Montreal v. Dame Mclntyre, [1948] Que. K.B. 412; Lévesque v. Benoit, [1952] Que. Q.B. 430; Union professionnelle des éducateurs de Chicoutimi v. Commission des écoles catholiques de Chicoutimi, [1964] Que. Q.B. 282; Rose v. La Reine, [1972] C.A. 823; Equipements Rocbec Inc. et autres v. Ministre du Revenu national, [1980] C.S. 1089; In re M.N.R. v. Paroian, Courey, Cohen & Houston, 1980 CanLII 1577 (ON CA), 80 D.T.C. 6077; Royal Craft Products Ltd. and Coulson v. The Queen, 1979 ABCA 326, 80 D.T.C. 6143, referred to.

APPEAL from a judgment of the Court of Appeal of Quebec, [1981] C.A. 461, dismissing the appellant’s appeal from a judgment of Ryan J. of the Superior Court, which gave his approval to an authorization of the Minister to enter and seize pursuant to s. 231(4) of the Income Tax Act. Appeal dismissed.

Guy Dupont, for the appellant.

Jacques Ouellet, Q.C., for the respondents.

Reasons for Judgment

English version of the judgment of the Court delivered by

CHOUINARD J.—This appeal is in two stages.

First, there is the question of whether an appeal may lie to the Court of Appeal for Quebec from the approval given by a judge of the Superior Court, pursuant to s. 231(4) of the Income Tax Act, 1970-71-72 (Can.), c. 63, to an authorization given by the Minister of National Revenue to undertake a search for and to seize documents pertaining to a breach of the Act.

If the answer is in the affirmative, appellant then argued that the approval and the authorization by the Minister are unlawful and improper

[Page 591]

and asked this Court to set aside the judgment of the Court of Appeal and the approval of the judge of the Superior Court, to quash the authorization by the Minister to undertake a search and seizure, and to order that all the seized documents be returned to him.

The Court of Appeal ruled on the first question that no appeal could lie. Consequently it did not rule on the second question. The same course will be followed in this Court if the first question is answered in the negative.

Section 231(4) reads:

(4) Where the Minister has reasonable and probable grounds to believe that a violation of this Act or a regulation has been committed or is likely to be committed, he may, with the approval of a judge of a superior or county court, which approval the judge is hereby empowered to give on ex parte application, authorize in writing any officer of the Department of National Revenue, together with such members of the Royal Canadian Mounted Police or other peace officers as he calls on to assist him and such other persons as may be named therein, to enter and search, if necessary by force, any building, receptacle or place for documents, books, records, papers or things that may afford evidence as to the violation of any provision of this Act or a regulation and to seize and take away any such documents, books, records, papers or things and retain them until they are produced in any court proceedings.

In the case at bar, as summarized by Bernier J.A., rendering judgment for the Court of Appeal [at pp. 462-63]:

[TRANSLATION] The search was designed to obtain documentary evidence of offences allegedly committed by Goodman as a taxpayer (in relation to his own tax returns) or as a party to offences allegedly committed by taxpayers for whom, as a chartered accountant, he was responsible for preparing financial statements and tax returns.

The affidavit in support of the application for approval was provided by an employee of the Department who, in the course of an audit conducted at Goodman’s place of business, had of his own motion, without judicial authorization, using the powers of seizure vested in him (s. 231(1)(d)), seized certain documents relating to offences which he had uncovered. The application for approval dealt with an authorization of the person dele-

[Page 592]

gated by the Minister (s. 900) to search and seize documentary evidence in the residence, place of business and automobiles of Goodman, in the place of business of a firm keeping books for Goodman and for his clients, as a subcontractor, and in the office of his legal counsel.

To which appellant adds:

On 3 December 1980, the authorization to enter and search was used to enter and search the premises described therein and to seize, take away and retain all books, records, documents, papers and things relating not only to the Appellant’s personal affairs for the 1977, 1978 and 1979 taxation years but also those relating to prior and subsequent years, all his client files, minute books, documents, papers and things whatsoever relating to his professional practice totalling approximately seventy-nine boxes.

This appeal raises one aspect of the search by taxpayers for what Bernier J.A. called [TRANSLATION] “…some means of redress against the abuse of exceptional provisions enacted in the public interest, or against the power of search and seizure exercised pursuant to an authorization…”

In Minister of National Revenue v. Coopers and Lybrand, 1978 CanLII 13 (SCC), [1979] 1 S.C.R. 495, this Court held that an approval by a judge cannot be the subject of an application to the Federal Court of Appeal under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10. However, the Court made no finding on the right of appeal to a provincial appellate court or on the existence of other remedies.

Dickson J., rendering judgment for the Court, wrote at pp. 509 and 510:

In my opinion, the Federal Court of Appeal did not have a right of review in the case at bar. Whether an appeal lies to the provincial courts from the authorization of the Minister and approval of a judge, pursuant to s. 231 (4) of the Income Tax Act, is a question I would wish to leave open as it does not arise for decision in the present appeal. I would equally wish to leave for another occasion the question whether recourse could be had to replevin, or to one of the prerogative writs.

[Page 593]

Appellant relied on arts. 25 and 26 C.C.P., and alternatively on the alleged inherent power of the Court of Appeal to reform a judgment of the Superior Court when the latter exceeds its jurisdiction.

It was admitted that neither the Income Tax Act (supra) nor any other federal statute confers a right of appeal from the approval to provincial appellate courts.

In the submission of respondents, a right of appeal is an exceptional right and can only be exercised within the framework of the statute which authorized it. There can be no right of appeal unless it is conferred by legislative enactment. See Welch v. The King, 1950 CanLII 8 (SCC), [1950] S.C.R. 412, at p. 428.

Respondents further submitted that a right of appeal is not merely a question of procedure (see Ville de Jacques-Cartier v. Lamarre, 1957 CanLII 86 (SCC), [1958] S.C.R. 108, at p. 111; Ace Holdings Corporation et al. v. Montreal Catholic School Board, 1971 CanLII 165 (SCC), [1972] S.C.R. 268, at p. 275), that it must be conferred expressly, and that in a federal matter it can only be conferred by a federal statute. Consequently, a right of appeal in a federal tax matter cannot be given by the provincial legislator.

This latter question was considered by this Court, but not decided, in Deputy Attorney General of Canada v. Brown, 1964 CanLII 48 (SCC), [1965] S.C.R. 84, in which Martland J. wrote on behalf of the Court, at p. 87:

In so far as the latter application is concerned, despite the fact that the application for leave has been made, counsel for both parties submitted that no appeal did lie to the Court of Appeal of British Columbia because, this being a statute enacted by the Federal Parliament, a right of appeal to the Court of Appeal of British Columbia could only have been given by the terms of a Federal statute and no such right had been provided. Whether or not that submission is sound was not determined in the Court of Appeal of British Columbia, which reached its decision for different reasons, and, for the reasons hereinafter given, I do not think it is necessary to decide it here.

Is it true that, as counsel for the respondents submitted, in a federal matter only federal legisla-

[Page 594]

tion can confer a right of appeal?—or is it the position that when federal legislation exists the rules enacted by it apply, and when there is no federal legislation provincial enactments become applicable?—and when, as in the case at bar, the federal statute authorizes certain appeals (for example, ss. 169 et seq.) but is silent as to the approval, do the provincial enactments apply to the latter or has the field been occupied?

Once again, it will not be necessary to answer these questions since, in my opinion, even assuming that the provisions of the provincial statute do apply, there is no appeal. No right of appeal is given in the case under review either by arts. 25 and 26 C.C.P. or by virtue of an inherent power which the Court of Appeal may have to reform a judgment of the Superior Court when the latter exceeds its jurisdiction, on which appellant must necessarily rely and does rely.

I reproduce below the text of art. 25 and paras. 1 and 4 of art. 26 C.C.P.:

25. The Court of Appeal is the general appeal tribunal for Québec; it hears appeals from any judgment from which an appeal lies, failing an express provision to the contrary.

26. Unless otherwise provided, an appeal lies:

27. from any final judgment of the Superior Court, except in a case where the value of the object of the dispute in appeal is less than six thousand dollars;

28. with leave of a judge of the Court of Appeal, from any other final judgment of the Superior Court and of the Provincial Court, when the matter at issue is one which should be submitted to the Court of Appeal;

It can be seen from reading art. 26 that both under para. 1, appeals de plano, and under para. 4, appeals with leave of a judge of the Court of Appeal, which is the case here, the judgment must be a final one. In my opinion, an approval does not constitute a final judgment of the Superior Court.

It is now established that by giving or refusing his approval a judge of the Superior Court does

[Page 595]

exercise judicial functions. In Coopers and Lybrand (supra), Dickson J. wrote at p. 508:

The powers which the judge exercises are judicial when in review of ministerial administrative discretion.

However, one must also look at the context in which the judge exercises these judicial powers and at their scope. In this regard, I think it is useful to cite the following passage from Dickson J. in the same case, Coopers and Lybrand (supra), at p. 506. In this passage Dickson J. examines the question of whether the words used to confer the function on the Minister or the general context in which that function is exercised suggest that it was contemplated that a hearing should be held before a decision is taken by the Minister. However, it contains a statement of the interrelation between the function of the judge and that of the Minister and the purpose of judicial intervention:

(1) There is nothing in the language in which the Minister’s functions are conferred or in the general context which indicates a duty to notify the taxpayer or any other person, or to hold a hearing, before seeking approval of authorization to enter, search and seize. On the contrary, Parliament substituted for the rules of natural justice the objective test that the Minister, before acting, have reasonable cause to believe that a violation of the Act or regulation had been committed or was likely to be committed. See Lord Reid in Ridge v. Baldwin, [1964] A.C. 40 (H.L.), 78.

Recognizing that a right of search is in derogation of the principles of the common law, and open to abuse, Parliament also built into the legislation an immediate review of the ministerial decision by interposing a judge between the revenue and the taxpayer. The judge sits to scrutinize [with utmost care] the intended exercise of ministerial discretion. Lacking judicial approval the ministerial decision is without effect. Indication of parliamentary intention to deny the taxpayer the right to be heard at this stage, is the statement in s. 231(4) that the judge is empowered to give approval on an ex parte application.

I take it that Parliament concluded, perhaps not unreasonably, that the imposition of procedural steps additional to those spelled out in s. 231(4) would frustrate the object of the section conferring the power and obstruct the taking of effective investigatory action. It

[Page 596]

obviously considered the public interest entailed in enforcement and the private interest affected by search and seizure, and concluded that procedural fairness was achieved by the section as drafted. For myself, I do not know what additional procedural protection could be given without frustrating parliamentary intent.

Dickson J. further observed (at p. 508) that “The judge’s approval is the control on the Minister’s decision,…”

In the Manuel de la Cour d’appel of Rivard, a final judgment is defined as follows in No. 167, at p. 92:

[TRANSLATION] The final judgment is properly speaking the judgment which terminates a trial, disposes of the issue and puts an end to the case. It is rendered when all points have been explored, or it decides them at the same time as it disposes of the issue on the merits, whereby the Court ceases to have authority over the case and its jurisdiction is exhausted.

On the basis of this definition I find that here there has as yet been no trial, no issue nor a case. Perhaps there will never be. The approval cannot be a judgment which “terminates a trial”, “disposes of the issue”, “puts an end to the case” or “disposes of the issue on the merits”.

In Di Zazzo v. Cité de Saint-Léonard, [1976] C.A. 509, the Court of Appeal on a motion to dismiss turned down an appeal brought from a judgment of the Superior Court ordering an investigation pursuant to the Municipal Bribery and Corruption Act, R.S.Q. 1964, c. 173, now R.S.Q. 1977, c. F-6. Montgomery J.A., for the Court, wrote at p. 510:

The judgment a quo decides nothing final; it merely authorizes certain further proceedings.

In Fonds d’indemnisation des victimes d’accidents d’automobile v. Langlois, [1974] C.A. 535, Mayrand J.A. wrote for the Court, at p. 536:

[TRANSLATION] It would therefore appear that in the language used by our legislator, a judgment which does not dispose of the entire issue is not regarded as final or definitive. As a consequence, there can be only one definitive judgment in a particular case: that which terminates the entire proceeding.

[Page 597]

Precedent undoubtedly qualifies this rule in some respects, when the decision rendered makes a final adjudication after the primary contestation on a contestation separate from the primary contestation, or in the course of the primary contestation on a right found to be distinct. In Ace Holdings Corporation et al. v. Montreal Catholic School Board (supra), Pigeon J. reviews at p. 272 the precedents which, for this reason, recognized as final various judgments handed down after the primary contestation had been disposed of or in the course of the primary contestation.

In the first category are the following cases: revocation of a stay of execution; order for sale of several immovables as a whole; condemnation for contempt of court; imprisonment for disobeying a writ of habeas corpus; denial of a petition in revocation of judgment; judgment fixing the value of services rendered to a garnishee.

The second category includes the following cases: peremption of suit; right to trial by jury; interlocutory injunction.

Ace Holdings Corporation itself has no bearing on the case at bar. It concerned a right of appeal from a judgment of a judge reviewing the taxing of a bill of costs, from which there could not be any appeal by interpretation of art. 480 C.C.P. and in view of the century-old line of authority to that effect.

The case at bar is not comparable to any of the situations recognized by earlier decisions, and I do not think it can be said that search and seizure constitute a proceeding in itself, and that accordingly the approval constitutes a final judgment. The Court of Appeal had occasion to make a further ruling in a case involving contempt of court in Syndicat des employés de transport Dumont (CSN) v. Nap. Dumont Ltée, [1978] C.A. 530. Union members were ordered to pay a fine, and failing that to serve a term of imprisonment, for infringing an injunction. The Court of Appeal held once again that contempt of court is an issue in itself which may arise during a proceeding or even thereafter, and that a judgment imposing a sentence for contempt of court is a final judgment. In the case at bar the approval entails neither a

[Page 598]

sentence against appellant nor a ruling on his rights. It merely permits the search and seizure authorized by the Minister to be made.

Appellant limited himself to arguing that the judgment in question was a final one. No alternative argument was presented to suggest that it might be an interlocutory judgment that could be appealed under art. 29 C.C.P. I doubt that such an argument could have succeeded in any case, and there is no need to discuss the point further as it has not been raised.

Finally, the use of the term “approval” in itself confirms in my opinion that it is not a final judgment.

In this regard, I would cite the following passage from the reasons of Bernier J.A. [at p. 465]:

[TRANSLATION] There is also the use in this legislative enactment of an unusual term, “approval”. The rules of interpretation provide that when in the same statute the legislator uses different words, it is because he intends to refer to different situations or concepts. In the same section, in subsection (2), which provides for an application for an extension of the 120-day period for the custody of documents seized by an investigator under the power of seizure vested in the latter by s. 231(1)(d), which the Minister can make to a judge of the Superior (or County) Court, referring to the decision of the judge, the legislator uses the usual word “order”.

“Agrément” (in English “approval”), which is defined by the Petit Robert, 1979, as follows: [TRANSLATION] “permission, approval given by some authority”, constitutes a certain degree of protection against possible abuses “by interposing a judge between the revenue and the taxpayer”, “the control on the Minister’s decision”, and is a part of the Minister’s administrative investigation to determine whether proceedings will be instituted. With respect, this is not in my view a final judgment and there is no appeal under art. 26 C.C.P.

There remains the inherent power which the Court of Appeal is said to have to reform a judgment of the Superior Court when the latter exceeds its jurisdiction. As to the existence of this inherent power, appellant cited the following cases:

[Page 599]

Cité de Montréal v. Hénault (1919), 1919 CanLII 353 (QC CA), 26 R.L. 270; Dostaler v. Lalonde (1919), 29 Que. K.B. 195; R. v. Labrie et Malépart (1920), 31 Que. K.B. 47; Desrochers v. Perron (1930), 48 Que. K.B. 427; and City of Montreal v. Dame McIntyre, [1948] Que. K.B. 412; Lévesque v. Benoit, [1952] Que. K.B. 430; Union professionnelle des éducateurs de Chicoutimi v. Commission des écoles catholiques de Chicoutimi, [1964] Que. Q.B. 282.

However, this power is not universally recognized. It is denied by the decision from which this appeal is brought. Bernier J.A. writes [at p. 467]:

[TRANSLATION] The Court of Appeal, unlike the common law court, which is the Superior Court in the province of Quebec, has no inherent power except for those common to all courts, referred to in art. 46 C.C.P., namely those “necessary for the exercise of their jurisdiction”.

It does not have inherent powers of supervising and reforming the Superior Court and its judges; its powers are only those with which it is expressly and explicitly vested by an enabling provision.

Bernier J.A. further cites Rose v. La Reine, [1972] C.A. 823, in which, with the concurrence of two of his brother judges, Deschênes J.A., as he then was, writes at p. 825:

[TRANSLATION] Appellant first submitted that this Court should strive to extend its jurisdiction, that no harm should be without a remedy and that in the absence of a specific enactment this Court should exercise, in particular over the Court of Queen’s Bench, criminal side, a superintending and reforming power comparable to that which art. 33 C.C.P. confers on the Superior Court over the courts mentioned in the article. However, appellant was unable to indicate to the Court any legal basis on which we could rest our claim to assume this reforming function.

The jurisdiction of this Court to hear an appeal derives from the law, in this case the Criminal Code, and not from an equitable jurisdiction that may be extended at will or at the caprice of the individuals making up the Court. The right of appeal is an exceptional right and it therefore can only be exercised in accordance with the statute authorizing it.

This power would in any case only exist in the event that the Superior Court exceeded its jurisdiction.

[Page 600]

In view of its conclusion that no such inherent power exists, the Court of Appeal did not go further into the question of whether the judge had exceeded his jurisdiction. In my opinion, even assuming that this power exists it does not apply in the case at bar because there was no excess of jurisdiction.

Appellant made several arguments which related, in brief, to the inadequacy of the evidence of “reasonable grounds” which the Minister had for believing that an offence “has been committed or is likely to be committed”, to the vagueness regarding the offence and the vagueness regarding the documents to be seized.

It is necessary to reproduce here subs. (5) of s. 231 of the Income Tax Act (supra):

(5) An application to a judge under subsection (4) shall be supported by evidence on oath establishing the facts upon which the application is based.

In the case at bar the evidence provided on oath consisted of an affidavit of some ten pages.

In Equipements Rocbec Inc. et al. v. Minister of National Revenue, judgment which was rendered concurrently[^1], Dugas J. of the Superior Court [1980] C.S. 1089 had to consider arguments similar to those made here. In that case, Dugas J. gave his approval to an authorization to search and seize of the same type as that under consideration. He was subsequently asked to review his approval and limit the authorization. He concluded that he had the power to undertake to review his own approval, he examined the points made, and he rendered a decision in which he refused to review his approval.

Relying in particular on a decision of the Court of Appeal of Ontario, In re M.N.R. v. Paroian, Courey, Cohen & Houston 1980 CanLII 1577 (ON CA), 80 D.T.C. 6077 and on a decision of the Court of Appeal of Alberta, Royal Craft Products Ltd. and Coulson v. The Queen 1979 ABCA 326, 80 D.T.C. 6143, Dugas J. concluded:

[Page 601]

[TRANSLATION] In brief, the authorization to enter and search is part of a procedure of investigation, not one of indictment, which should eliminate the need to name the offence charged. The purpose of the investigation is to uncover any evidence that might indicate some offence had been committed, not merely evidence of the offence indicated by the proof filed in accordance with 231(5).

The reasons of the appellate judges, Morden J. in the Court of Appeal of Ontario and Clement J. in the Court of Appeal of Alberta, have persuaded me that there is no reason here to limit the authorization.

Dugas J. examined the arguments made and relied on Paroian and Royal Craft in determining whether he should review his approval and limit the authorization of the Minister. However, these same arguments were made in this Court in support of the contention that the Superior Court judge had exceeded his jurisdiction, and the same points were considered by the Court of Appeal of Ontario and that of Alberta.

These decisions by the courts of appeal of Ontario and Alberta result from the fact that in each case the approval had been obtained, as s. 231(4) allows, from a judge of a County Court, subject to the superintending and reforming power of the Supreme Court of the province, with an appeal to the Court of Appeal from the judgment of the Supreme Court. In each case the judge’s approval was upheld.

In Paroian Morden J., giving the judgment of the Court of Appeal, wrote at pp. 6083 and 6084:

He [the judge] has a duty to consider the cogency of the evidence put before him in determining what facts it “establishes”. He surely has a discretion, in a proper case, to withhold his approval, if he considers that the facts do not justify it. It would not be possible or helpful to say anything more on the subject of the exercise of his discretion, except with respect to one point: although the provision, as I have said, does not require the authorization to be particularized as to specific offences, I would not wish in these reasons to foreclose the possibility that in some cases, depending upon his view of the facts established, a judge could, as part of a residual discretion, and as an alternative to refusing approval outright, approve an authorization that contained some limitation as to its scope. I express no concluded opinion on this point.

[Page 602]

Apart from the matter as to whether the violations in respect of which the search is authorized are required to be particularized, there is the question whether it is necessarily implicit in the legislation that the premises to be searched and the persons in respect of whose violations the search is authorized are required to be identified. There can be no doubt that the premises have to be described in the authorization. They are described in the authorization before us. Further, I would think “that in most cases, particularly where the premises to be searched are those of third parties, such as lawyers’ offices or banks, it is necessarily implicit that the persons be identified. They were identified in the authorization in the present case—”for documents, books, records, papers or things pertaining or relating to Collavino Brothers Construction Company Limited that may afford evidence… “I need not, therefore, pursue the point further.

He went on to say at p. 6085:

On the basis of the foregoing, I consider the form of the authorization before us to be proper. Further, it cannot be said that there was no evidence capable of supporting its approval by the judge. The affidavit sufficiently covered the matters of reasonable and probable grounds of belief that a violation of the Act had been committed and furnished reasons justifying the inclusion of the premises in question in the authorization.

In Royal Craft (supra), Clement J., after citing at length from the reasons of Dickson J. in Coopers and Lybrand (supra), wrote for the Court of Appeal, at pp. 6147 and 6148:

In the passage from the judgment of Dickson, J. quoted above, he views proceedings under s. 231(4) as part of an effective investigatory action. The investigating process, for the present purposes, commences with s. 230 in the requirement to keep records and books of account, and to retain them until the Minister gives written permission for their disposal. No time limit is set on the performance of this duty. The prescribed retention may extend over many years and there is no provision for review by the courts. It is the whole of such records and books of account and related documents that may be audited or examined under s. 231(1)(a) and again there is no time limit. Under s.s. (1)(d) the examiner may seize and take away any such “that may be required as evidence as to the violation of any provision of this Act or a regulation”. Again, there is no limitation as to the taxation years for which such seizure may be made. It is part of the investigative process

[Page 603]

leading, if so warranted by the documents seized, to charge or charges. Subsection (2) provides for the return of such documents unless their retention is ordered by a judge on an ex parte application: a safeguard against abuse paralleled in s.s. (4). Subsection (4) takes the matter a step further. Documents audited or examined under s.s. (1)(a) may point to further relevant documentation any or all of which may ground a reasonable and probable belief by the Minister that a violation has been committed. This is the motivation for the Minister in issuing an authorization. But the authorization still remains part of the investigative process, as much so as the preceding provisions I have noted. The search is for evidence of any violation of the Act or regulation. The public interest in the proper assessment and payment of income taxes is, in my view, offended if the courts are to hold that the investigative power plainly given to the Minister by Parliament is to be curtailed by a judicial technique of statutory interpretation. I can see no more reason for limiting the investigation under s.s. (4) than under s.s. (2) which in turn embraces all the documents required to be retained by a tax payer under s. 230.

In this view, I can find no error in the approval given by the judge under s. 231(5). The authorization was in order: it named the officers to execute the search and seizure, and identified the persons and the places. The scope of the seizure was not greater than that contemplated by the Act in the progression of investigation. There was thus nothing before the judge on which he could judicially withhold his approval of the “intended exercise of ministerial discretion”. The validity of that exercise of discretion was demonstrated to Dechene, J. and the appellants filed no material to refute it.

This Court does not have to consider whether the judge committed errors in giving his approval. In so far as it exists, the inherent power of the Court of Appeal would only enable it to intervene in the event of an excess of jurisdiction.

The Superior Court judge gave his approval in the following terms:

After having considered the application made by the Chief, Judicial Processes Section, Special Investigations Division, based on the affidavit of Guy Drolet, I hereby

[Page 604]

approve of the above authorization, which approval is also indicated on the preceding pages by my initials.

The judge had to consider a similar authorization to those at issue in Paroian and Royal Craft. In the latter case Clement J., referring to Coopers and Lybrand (supra), wrote at p. 6146: “The substance of the matter brought to court was essentially the same as here. The Minister’s authorization was in the same terms and I am given to understand the same form is used in all cases of this nature”. The judge had before him an affidavit stating in great detail the reasonable grounds which the Minister had to believe offences had been committed and including the points mentioned in the summary of the facts by Bernier J.A of the Court of Appeal, cited at the beginning of these reasons. It is in light of this evidence that the judge gave his approval, and in my opinion it has not been shown that he exceeded his jurisdiction in doing so.

No appeal lies to the Court of Appeal of Quebec from that approval either pursuant to art. 26 C.C.P. or by virtue of the inherent power which, in the submission of appellant, the Court of Appeal has in the event that the Superior Court exceeds its jurisdiction. There is accordingly no need to consider the second question raised by appellant.

For these reasons I am of the opinion that this appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellant: Verchère, Noël & Eddy, Montreal.

Solicitor for the respondents: Jacques Ouellet, Montreal.

[^1]: Published at [1982]. S.C.R. 605.