Siggelkow v. Canada (Attorney General), 2013 ABQB 116

Court of Queen ’ s Bench of Alberta Citation: Siggelkow v. Canada (Attorney General), 2013 ABQB 116 Date: 20130225 Docket: 1204 00284 Registry: Grande Prairie Between: Edwin Siggelkow Plaintiff - and - Attorney General of Canada and Solicitor General for Alberta Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J. Strekaf _______________________________________________________ 1. Introduction [ 1 ] Edwin Siggelkow has applied to set aside a search warrant issued on August 19, 2010 pursuant to

section 487 of the Criminal Code to search the personal residence of Edwin and Marites Siggelkow and storage facilities used or controlled by them for evidence with respect to the commission of various offences against the Income Tax Act and the Excise Tax Act . He also seeks to challenge the policy of the Canada Revenue Agency ("CRA") to utilize the search warrant provisions in the Criminal Code , rather than those in the Income Tax Act and the Excise Tax Act. While not expressly stated in the Applicant's materials, the application was presumably brought pursuant to either

Part 3, Division 2, Subdivision 2 of the Rules of Court entitled Additional Rules Specific to Originating Applications for Judicial Review or

Part 60 of the Rules of Court, entitled Rules Pursuant to

Section 424 of the Criminal Code with respect to Mandamus, Certiorari, Habeas Corpus and Prohibition. (The current provision of the Criminal Code which authorizes the making of these rules is

section 482 .)

2. Background [ 2 ] A search of Mr Siggelkow's residence was executed pursuant to the warrant on August 25, 2010. On September 23, 2010, Mr Siggelkow brought an application for judicial review in the Federal Court to quash the issuance of the search warrant under

section 487 of the Criminal Code and prohibit the CRA from applying for a warrant other than in accordance with the provisions of the Income Tax Act .

On March 28, 2011, a Prothonotary of the Federal Court granted an application brought by the Attorney General of Canada to quash the application as an abuse of process on the basis that the CRA's decision to apply for a search warrant was an administrative procedural step that was not reviewable by the Court and that any relief with respect to a search warrant issued by an Alberta justice of the peace was not within the jurisdiction of the Federal Court and should have been brought before the Provincial Court of Alberta or the Court of Queen's Bench of Alberta.

That decision was set aside by a Federal Court Justice on July 11, 2011 on the basis that the real issue raised by Mr Siggelkow was not the issuance of a warrant in his case, but whether the CRA's policy or practice to proceed to obtain a search warrant under

section 487 of the Criminal Code was legal. On April 24, 2012, the Federal Court of Appeal set aside the trial division's order and restored the decision of the Prothonotary on the basis that Mr Siggelkow's application constituted an improper collateral attack on the warrants. 3. Preliminary Issue [ 3 ] The Respondent raises a preliminary matter that the application, which is presumably an application brought pursuant to either Rule 3.15 or

Part 60 of the Rules of Court, is out of time as it was not brought within six months as required by Rule 3.15(2) and Rule 830. A. Rule 3.15 [ 4 ] Rule 3.15(1) and (2) state: 3.15(1) An originating application must be filed in the form of an originating application for judicial review if the originating applicant seeks from the Court any one or more of the following remedies against a person or body whose decision, act or omission is subject to judicial review: (

a) an order in the nature of mandamus, prohibition, certiorari, quo warranto or habeas corpus; (

b) a declaration or injunction.

(2) Subject to rule 3.16 [Originating application for judicial review: Habeas corpus], an originating application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act, and rule 13.5 [Variation of time periods] does not apply to this time period. [ 5 ] The action complained of by Mr Siggelkow, which was the issuance of the search warrant pursuant to CRA’s alleged policy or practice, occurred more than six months prior to the commencement of this application.

To the extent that this application was brought under Rule 3.15 it is out of time and must be dismissed as this Court has no jurisdiction to extend the six month time period contemplated in Rule 3.15. B. Rule 830 [ 6 ]

Part 60 of the Rules of Court contains rules that apply in relation to matters of a criminal nature or, arising from or incidental to such a proceeding. Rule 830 states:

830 A notice of motion for an order in the nature of certiorari shall be filed and served within six months after the conviction, order,warrant or inquisition to which it relates. [7] Rules 825 states: 825 For the purposes of this Part, the Rules in civil cases mutatis mutandis, apply in all matters not herein provided for. [8] Under the former Rules of Court, there was divergent authority as to whether this Court had the jurisdiction to extend the sixmonth time period in Rule 830.

Ritter J in R v Bayda & Associates Surveys Inc (1997), (AB KB), 207 AR 28 andThomas J in R v Gardiner, 2007 ABQB 476, 427 AR 391 held that no jurisdiction existed, whereas Burrows J in R v Lupyrypa, 2008ABQB 427, 451 AR 245, concluded the Court did have jurisdiction. I am satisfied that such discretion exists under the current Rules ofCourt. Rule 825 provides that the Rules in civil cases apply mutatis mutandis in all matters not provided for in

Part 60. The referencesto the “Rules” in Rule 825 is presumably a reference to all of the Rules of Court, not just the rules which relate to applications for judicialreview. Rule 13.5 permits the Court to extend any time period specified in the rules, unless a rule otherwise provides.

While Rule3.15(2) states that Rule 13.5 does not apply to the six month time period to file and serve an originating application for judicial reviewpursuant to Rule 3.15, there is no express comparable limitation with respect to Rule 830. [9] I agree with the approach followed by Burrows J in Lupyrypa at para 37 and accept that the test used to determine whether toextend the time for filing an appeal established in Cairns v Cairns, (AB CA), [1931] 26 Alta LR 69 is appropriatelyapplied in this context, being: 1. Did the appellant have a bona-fide intention to appeal while the right to appeal existed? 2.

Can the delay be excused? Can it be accounted for? Was the other side prejudiced by it? 3. Has the party seeking to appeal taken any benefit from the decision he seeks to appeal? 4. Does the appeal have a reasonable chance of success? [10] I am satisfied that the first three requirements have been met in this case. The application in the Federal Court wascommenced within one month from the time that the search pursuant to the warrant was executed, evidencing an immediate desire totake steps to challenge the warrants on essentially the same basis as is before the Court on this application.

This application wascommenced eight days following release of the Federal Court of Appeal's decision. The delay in bringing this application was the resultof the application being commenced in the wrong court. There is no suggestion that the Crown has been prejudiced or that Mr.Siggelkow has taken any benefit from the decision. [11] However, with respect to the fourth criteria, I am not satisfied that the application has a reasonable prospect of success. TheSupreme Court of Canada in R v Multiform Manufacturing Co, (SCC), [1990] 2 SCR 624 and R v Grant,(SCC), [1993] 3 SCR 223 has determined that

section 487 of the Criminal Code is available where an offence under any Act ofParliament is suspected to have been committed, in accordance with a plain reading of that provision. This approach was applied in thecontext of the Income Tax Act in R v Porisky, 2012 BCSC 68. [12] To the extent that the Applicant seeks to have this Court consider whether the CRA had an administrative policy to proceed toseek a search warrant under

section 487 of the Criminal Code rather than under the search provisions of the Income Tax Act that wascontrary to law, that issue also has no reasonable chance of success in the context of this application. There is no sufficient evidentiarybasis before me from which one could reasonably conclude that such a policy existed, that such a policy was applied in this case, or thatsuch a policy would be contrary to law.

[13] The Respondent also submits that the Applicant failed to serve the endorsement contemplated in Rule 831. I am of the viewthat such failure would not have been fatal and note that copies of the search warrant and the Information To Obtain sworn by RichardHarris were included in the affidavit filed by Mr Siggelkow in support of this application. [14] In view of all of the circumstances, it is my view that the application to extend time for the bringing of this applicationpursuant to Rule 830 should be denied. 4.

Conclusion [15] In conclusion, I note that the Crown's primary position was that this application was not the appropriate procedure tochallenge the search warrant and that the preferable approach would be to have this matter deferred to be determined by the trial judge,as contemplated in R v Tanner (1989), 1989 ABCA 48 , 95 AR 28 (CA). I agree. If the Applicant wishes to pursue a challengeto the search warrant and/or the procedures used to obtain the same, the appropriate forum would be before the trial judge. Heard on the 14th day of September, 2012.

Dated at the City of Grande Prairie, Alberta this 22nd day of February, 2013. J. Strekaf J.C.Q.B.A. Appearances: Edwin Siggelkow for the Plaintiff Wendy Bridges for the Defendants