R. v. James, Kirsten, Rosenthal and Dzagic, (1986) 15 O.A.C. 319 (CA)

• Judge: Martin, Robins and Tarnopolsky, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 03, 1986
• Jurisdiction: Ontario
• Citations: (1986), 15 O.A.C. 319 (CA)

R. v. James (1986), 15 O.A.C. 319 (CA)

MLB headnote and full text

Her Majesty The Queen (appellant) v. Kenneth James, Elsa Kirsten and Anna Rosenthal (respondents);

Her Majesty The Queen v. Steven Dzagic and Dorothy Dzagic

Indexed As: R. v. James, Kirsten, Rosenthal and Dzagic

Ontario Court of Appeal

Martin, Robins and Tarnopolsky, JJ.A.

July 23, 1986.

Summary:

Both these appeals involved situations where prior to the Charter representatives of the Department of National Revenue seized evidence for Income Tax Act purposes and retained the evidence for trial pursuant to a pre-Charter retention order. The issue in both appeals was whether s. 24 of the Charter can be applied to exclude the evidence on the grounds that the means by which the evidence was obtained contravened s. 8 of the Charter, either (1) because (as in the Dzagic appeals) the seizure authorizing provision under the Act, s. 231(1)(d), permitted unreasonable searches and seizures and was contrary to s. 8, or (2) because (as in the James, Kirsten and Rosenthal appeals) the seizure was unlawful when it took place, because it was not in accordance with the Act and therefore contravened s. 8.

The Ontario Court of Appeal held that s. 8 of the Charter (the right to be secure against unreasonable search and seizure) did not apply to searches and seizures made under the Income Tax Act prior to the Charter's enactment. The court held further that since s. 8 was not applicable to the seizures in this case and no Charter rights were infringed, s. 24 remedies were unavailable. The court therefore held that the evidence seized should not be excluded under the Charter and the charges against the James, Kirsten, Rosenthal and the Dzagics would be remitted to the summary conviction court to be dealt with accordingly.

Civil Rights - Topic 1641

Property - Search and seizure - Seizure prior to enactment of Charter - Income tax investigators, in accordance with the Income Tax Act, seized documents from the accused (the Dzagics) before the Charter was enacted and retained the documents pursuant to a pre-Charter retention order - After the Charter was enacted the accused were charged with Income Tax Act offences - They alleged that the seizure was contrary to s. 8 of the Charter - The Ontario Court of Appeal held that the seizure was not contrary to the Charter - The court stated that the law that is applicable is the law that was in force when the Charter right was allegedly contravened - Here at the time of the seizure the Charter was not in effect and therefore there could be no contravention of s. 8 - See paragraph 56.

Civil Rights - Topic 8304

Charter - Application - Retrospectivity - The Ontario Court of Appeal held that s. 8 of the Charter (the right to be secure against unreasonable search and seizure) did not apply to searches and seizures made under the Income Tax Act prior to the Charter - See paragraph 56 - The court also held that since no Charter rights could be infringed in a pre-Charter search and seizure, then s. 24 remedies were unavailable because such remedies were contingent on there having been a Charter infringement - See paragraphs 57, 58.

Civil Rights - Topic 8304

Charter - Application - Retrospectivity - The Ontario Court of Appeal reviewed the jurisprudence on the question of whether the Charter applies retrospectively - See paragraphs 40 to 56 - The court stated that "no case in this court or the Supreme Court of Canada has questioned the assertion of Blair, J.A., in R. v. Longtin (1983), 5 C.C.C.(3d) 12, that the Charter does not have retrospective application" - See paragraph 42 - The court stated "I would sum up the cases reviewed as being consistent with a proposition that one applies the law in force at the time when the act that is alleged to be in contravention of a Charter right or freedom occurs" - See paragraph 56.

Civil Rights - Topic 8367

Charter - Denial of rights - Remedies - General - The Ontario Court of Appeal pointed out that s. 24(1) and 24(2) of the Charter apply only where rights guaranteed by the Charter have been infringed or denied - See paragraph 57.

Civil Rights - Topic 8368

Charter - Denial of rights - Remedies - Exclusion of evidence - The Ontario Court of Appeal pointed out that s. 24 of the Charter applies only where rights guaranteed by the Charter have been infringed or denied - See paragraph 57 - The court therefore agreed that s. 24(2) was inapplicable to exclude evidence where the evidence was obtained pursuant to a search and seizure affected prior to the enactment of the Charter because s. 8 of the Charter (the right to be secure against unreasonable search and seizure), does not apply to pre-Charter searches and seizures - See paragraph 58.

Civil Rights - Topic 8368

Charter - Denial of rights - Remedies - Exclusion of evidence - When available - Where Charter rights violated - Income tax investigators made an illegal and unreasonable seizure of documents from the accused (James, Kirsten and Rosenthal) which was not authorized by the Income Tax Act - The seizure occurred prior to the Charter's enactment - At trial after the Charter was enacted, the accused argued that the illegally obtained evidence should be excluded under s. 24 of the Charter - The Ontario Court of Appeal held that s. 8 of the Charter (the right to be secure against unreasonable search and seizure) did not apply to pre-Charter seizures and therefore there was no breach of the Charter - The Court held that since there was no infringement of the Charter, s. 24 remedies were unavailable to the accused - See paragraphs 57, 58.

Income Tax - Topic 9301

Enforcement - Search and seizure - General - The Ontario Court of Appeal held that s. 8 of the Charter (the right to be secure against unreasonable search and seizure) did not apply to searches and seizures made under the Income Tax Act prior to the Charter - See paragraph 56 - The court also held that since no Charter rights could be infringed in a pre-Charter search and seizure, that s. 24 remedies were unavailable to exclude evidence obtained in an illegal pre-Charter seizure, because such remedies were contingent on there having been a Charter infringement - See paragraphs 57, 58.

Words and Phrases

Retrospectivity - The Ontario Court of Appeal discussed what is meant by "retrospectivity" as it related to whether the Canadian Charter of Rights and Freedoms applied retrospectively - See paragraph 43.

Cases Noticed:

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, consd. [paras. 12, 37, 63].

R. v. Chapman (1984), 3 O.A.C. 79; 12 C.C.C.(3d) 1, consd. [paras. 12, 30, 39].

Royal American Shows Inc. v. His Honour Judge R. McClelland and the Minister of National Revenue (1977), 77 D.T.C. 5052, refd to. [para. 29].

R. v. Wray (1970), 4 C.C.C. 1, refd to. [para. 30].

R. v. Longtin (1983), 5 C.C.C.(3d) 12, consd. [paras. 30, 34, 42].

R. v. Antoine (1983), 5 C.C.C.(3d) 97, consd. [paras. 30, 39, 44].

Pica v. Canada (1985), 11 O.A.C. 222; 53 O.R.(2d) 193, consd. [paras. 34, 42].

R. and Shea, Re (1982), 1 C.C.C.(3d) 316, refd to. [para. 35].

Thyssen Canada Ltd. v. Minister of National Revenue (1983), 84 D.T.C. 6049, refd to. [para. 35].

R. v. Burnett and Ruthbern Holdings Ltd., [1985] 2 C.T.C. 227, refd to. [paras. 35, 58].

R. v. Kresanoski (1985), 58 A.R. 377, refd to. [para. 35].

R. v. MacDonald (1985), 10 O.A.C. 321; 51 O.R.(2d) 745, consd. [paras. 35, 50].

R. v. Dubois, [1985] 2 S.C.R. 350; 62 N.R. 50; 66 A.R. 202, consd. [paras. 35, 49].

Blackwoods Beverages Ltd. et al. v. Canada et al., [1985] 2 W.W.R. 159; 30 Man.R.(2d) 249, consd. [paras. 39, 63].

R. v. Langevin (1984), 3 O.A.C. 110; 11 C.C.C.(3d) 336, consd. [paras. 39, 47].

R. v. Konechny (1983), 10 C.C.C.(3d) 233, consd. [paras. 39, 46].

R. v. Lucas; R. v. Neely (1986), 14 O.A.C. 124, consd. [paras. 40, 51].

R. v. Dickson and Corman (1983), 3 C.C.C.(3d) 23, refd to. [para. 53].

R. v. Quesnel (1985), 12 O.A.C. 165; 53 O.R.(2d) 338, refd to. [para. 54].

R. v. Seo (1986), 13 O.A.C. 359, refd to. [para. 54].

R. v. Killen (1985), 70 N.S.R.(2d) 278; 166 A.P.R. 278, consd. [para. 55].

Bergeron et al. v. Deschamps et al., [1978] 1 S.C.R. 243, refd to. [para. 60].

R. v. Wray, [1970] 3 C.C.C. 122 (Ont. C.A.); [1970] 4 C.C.C. 1 (S.C.C.), refd to. [paras. 30, 62].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 8, sect. 24.

Income Tax Act, R.S.C. 1952, c. 148, sect. 231 [para. 5].

Authors and Works Noticed:

Black, William, Charter of Rights - Application to Pre-Enactment Events (1982), U.B.C. Law Rev. (Charter Ed.) 59 [paras. 41, 64].

Doherty, David, H., "What's Done Is Done": An Argument In Support of a Purely Prospective Application of the Charter of Rights (1982), 26 C.R.(3d) 121 [para. 41].

Driedger, E.A., Statutes: Retroactive Retrospective Reflections (1978), 56 Can. Bar Rev. 264, pp. 268, 269 [para. 43].

Counsel:

R. v. James, Kirsten and Rosenthal

Robert W. Hubbard, for the appellant Attorney General of Canada;

V. Ross Morrison, for James, Kirsten and Rosenthal.

R. v. S. Dzagic & D. Dzagic

Larry Taman and David W. Kent, for the Dzagics;

Bruce R. Shilton, for the respondent Attorney General of Canada.

The James, Kirsten and Rosenthal appeal was heard on January 23 and 24, 1986, and the R. v. Dzagic appeal was heard on January 24 and February 3, 1986, before Martin, Robins and Tarnopolsky, JJ.A., of the Ontario Court of Appeal. The following decision which disposed of both appeals was delivered by Tarnopolsky, J.A., and was released on July 23, 1986: