FMC involved in landmark decision on the powers of search and seizure
May 14 2008
On May 14, 2008, Justice Suzanne Courteau of the Superior Court handed down an important decision on the powers of search and seizure set out in sections 40 and 40.1 of the Act respecting the ministère du Revenu (the "MRA"). In her judgment, Justice Courteau found the wording "until it has been produced in judicial proceedings" contained in sections 40 and 40.1 of the MRA, unconstitutional, invalid, null and void. Her reasoning was that this wording violates section 8 of the Canadian Charter of Rights and Freedoms (the "Charter") since it authorizes the unreasonable retention of things seized during a search.
Section 40 MRA is the provision that authorizes Ministère du Revenu officials who have obtained a warrant to search for any thing that may afford evidence of an offence against a fiscal law or a regulation made by the Government under a fiscal law, and seize, remove and keep it "until it has been produced in judicial proceedings".
As for section 40.1 MRA, it authorizes the person executing a warrant issued under section 40 MRA to seize and remove, in addition to that which is referred to in the warrant, any thing he believes, on reasonable grounds, to constitute evidence of the commission of an offence against a fiscal law or a regulation made by the Government under a fiscal law and, upon being authorized by a judge, to keep it for purposes of the investigation, "until it has been produced in judicial proceedings".
Therefore, as these sections currently read, the courts rule only once on the retention of the seized items—either when the search warrant is issued or when a judge orders that the things be retained pursuant to section 40.1 MRA.
BACKGROUND
In May 2006, the plaintiff companies were searched a number of times. During the searches, many things were seized, not only under the search warrants but also under section 40.1 MRA. As required by the latter section, a judge authorized the retention of the things seized until they were produced in judicial proceedings. To date, no judicial proceedings have been introduced in connection with the alleged offences for which the search warrants were issued and the things were seized, notwithstanding that it has been over 23 months since the searches.
CONSTITUTIONAL SHORTCOMINGS OF SECTIONS 40 AND 40.1 MRA
Justice Courteau agreed with the arguments of the plaintiff companies, and found that sections 40 and 40.1 MRA violate section 8 of the Charter for two reasons. First, as these sections now read, the judge who authorizes the search and retention of the things seized loses jurisdiction over them and, second, there are no mechanisms for such jurisdiction to be maintained, or to assure reasonable retention of the things seized during the entire time they are being held. According to Justice Courteau, the intent of section 8 of the Charter is to prevent unreasonable search and seizure. For this reason, Justice Courteau found that the unlimited retention of things seized in the absence of court jurisdiction and without judicial authority over the retention of the things seized makes it impossible to take preventive action and guarantee compliance with section 8 of the Charter. Such omissions in the wording of sections 40 and 40.1 MRA cannot be tolerated by the courts. Accordingly, the plaintiff companies’ motion for a ruling of unconstitutionality had to be granted.
The plaintiffs in this case were represented by Jean Groleau and Nicolas Courcy.
For further information, please contact:
Jean Groleau
Fraser Milner Casgrain
514 878-8851
jean.groleau@fmc-law.com
Nicolas Courcy
Fraser Milner Casgrain
514 878-5825
nicolas.courcy@fmc-law.com
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