HIS MAJESTY THE KING AS REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT - v. -, 2023 SKKB 179

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 179 Date: 2023 08 24 Docket: CRM-SA-00333-2023 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING AS REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT - and - G.D. RESPONDENT Counsel: Andrea J. Curliss for the Crown ___________________________________________________________________________ FIAT DANYLIUK J. August 24, 2023 ___________________________________________________________________________ I. INTRODUCTION [ 1 ] This is an unusual application.

It is brought in the midst of an investigation. No charges have been laid against anyone as yet. [ 2 ] The federal Crown invites the Court to fill what the Crown sees as a “gap” in legislation, specifically the Criminal Code , RSC 1985, c C-46 . The suggested means of filling this putative gap is through invoking this Court’s inherent jurisdiction. When you look at this legislation, the Crown says, this “gap” creates absurdities. Parliament could never have intended such a thing.

The Court should fix it using its inherent power as a court of superior jurisdiction. [ 3 ] For the reasons set out below, I must respectfully decline the Crown’s invitation and dismiss this application. II. FACTS [ 4 ] As noted, this matter is in the midst of a criminal investigation. It is not yet in the public domain and the background facts remain private, and sensitive.

It is with that need for circumspection in mind that I set out the factual matrix upon which the Crown’s application is based. [ 5 ] The Crown notes that in April 2023 a federal law enforcement authority began an investigation into three individuals. These individuals were involved in a business. A former employee of that business (in this fiat referred to as “X”, with X’s gender kept intentionally neutral) voluntarily went to those federal authorities and described an illegal scheme which allegedly breached a federal statute.

X also had in its possession documents which X had obtained during its term of active employment. X’s information resulted in the federal law enforcement authorities suspecting criminal offences had occurred. [ 6 ] In early May 2023 the federal law enforcement authorities formally seized the documents from X. The seized folder of 49 documents was sealed and detained to preserve evidence. Subsequently the federal authorities obtained a search warrant to

search the documents, and a sealing order placing the Information to Obtain [ITO] under seal so it could not be publicly scrutinized. [ 7 ] The search warrant was executed in early June 2023 in the evidence storage facility of this federal law enforcement authority. The folder contained 49 documents which, the Crown now says, clearly show the scope and operation of this allegedly illegal scheme.

While these documents are still being analyzed by investigators they apparently disclose that this scheme has been ongoing. [ 8 ] The Crown application emphasizes that the federal investigators feel there is a fourth person, identity as yet unknown, who is one of the linchpins of this scheme. Further time and analysis and investigation is required to identify such person so that he or she could be charged. [ 9 ] The ITO affiant also swore an affidavit supporting this application. The affiant deposed that the Order of the Justice of the Peace would expire August 2, 2023. This application was filed August 1, 2023.

No notice was given to anyone. [ 10 ] The Crown’s application is for an order further detaining the seized documents until May 4, 2024, without any notice to the owner of the documents. The basis is that notice would jeopardize the investigation and/or prevent the identification of this fourth involved individual. [ 11 ] The ITO deponent also now avers that within nine months of the date of seizure, criminal proceedings will be instituted, and the documents will be required for that prosecution. There is no explanation of why it is nine months.

Indeed, there is very little amplification provided to the overall investigation. While case law suggests that not a lot of detail is needed, this particular application is awfully lean on facts. [ 12 ] A memorandum of law was filed by the federal Crown. It, too, is scant in some key respects. However, it is noted that the Crown may apply to extend the detention of the seized items under s. 490(2) of the Criminal Code , but that

section requires notice to the person from whom the items were seized. At such hearings the Crown generally discloses to the Court the reason(

s) continued detention is sought. [ 13 ] Here, the Crown is concerned that if notice is given to one of the three known targets, the ongoing investigation will be threatened. It is unclear why one or more of the targets needs to be notified since the documents were not seized from any of them. III. ISSUES [ 14 ] The issues in this application are: 1. What are the general principles applicable? 2. Should the requested order be granted? IV. ANALYSIS 1. What are the general principles applicable? Seizure of Items under the Criminal Code [ 15 ]

Section 490 is the governing statutory provision. Under s. 489.1 items may be seized. Under s. 490 a peace officer has to return the seized items or, if he or she believes the items to be required for further investigation or court purposes, an application can be brought to detain them. That application is limited to a three-month detention.

This brings us to a fork in the legal road. [ 16 ] If the three-month detention is so ordered and the target is charged within the detention period, then the items are further detained ( s. 490(2) (b)). [ 17 ] If no charge is laid within the detention period, then s. 490(2) mandates that further detention can only be ordered on another court application, which is to be made on “three clear days notice thereof to the person from whom the thing detained was seized”. It is this notice provision that has the Crown concerned in the case presently before me. The Criminal Code contemplates a fairly

summary application process. In s. 490(2)(

a) it is a broad test for ordering further detention, being “having regard to the nature of the investigation, its further detention for a specified period is warranted”. Further orders can be made up to a one-year cap, or beyond if an application is brought before a court of superior jurisdiction. [ 18 ] Case authority suggests that a reviewing justice or court ought not to delve too deeply into the investigation, and that deference is owed to the investigating peace officers and they should not be second-guessed. The burden of proof on such an application is relatively low.

See, for example, a case cited by the Crown in its brief: Edmonton Police Service v A.H., 2011 ABPC 124 at para 39 . [ 19 ] However, this further portion of A.H. was not cited to me in the Crown brief: [40] There is a general acceptance of the notion that ‘the longer the detention, the greater the justification required’, a concept that is built into the legislative provisions themselves. … This does not mean, however, that less deference is owed to investigators, the more time that passes.

It means that delay calls for an explanation. [Emphasis added] [ 20 ] A.H. was considered in R v Villaroman , 2012 ABQB 630 , 80 Alta LR (5th) 321 , and in particular paras. 129 to

131 are apposite: [129] In Edmonton Police Service v. AH , 2011 ABPC 124 at para 37 [ AH ] , Anderson PCJ says that the role of the justice is supervisory and involves a consideration of the nature of the investigation. This means that the supervising justice will be in a position to keep their “finger on the pulse” of the investigation to determine whether the investigating officers require a continued detention of the seized item. If not, the justice will order that the item seized be returned to the lawful owner of the item: Criminal Code s. 490(1) (a).

Throughout this process, the lawful owner may apply to the justice to seek a return of the seized item: Criminal Code s. 490(7) . [130] In AH , the police were seeking a further nine-month extension of the period of detention of a computer and photographic equipment. The real concern that Anderson PCJ expressed had to do with the fact that the police were arguing that they lacked human resources to complete their investigation.

The court stated at para 44 that, “a lack of resources is not a justification for delay.” However, it also recognized that, in the case of computers, the nature of the item seized is a matter to which the court must direct its attention, quoting the privacy concern that Fish J. expressed in Morelli [2010 SCC 8 , [2010] 1 SCR 253 ] .

If a court were not to consider the nature of the seized item, this would “create an artificial and skewed balancing of investigative interests with the interest of the individual” (at para 52). [131] There are a shocking number of cases that deal with these sections of the Criminal Code . If the cases involved determinations of whether the police will be granted the extension or items should be returned to the lawful owner, one would not be surprised. However, the shock comes from the fact that the police are not complying with what appears to be a mandatory provision of the Criminal Code . In this case, Cst.

Morcom prepared the Form 5.2 Report, but did not go the next step to ensure that there was judicial oversight of the Computer that the police had in their possession. This type of systemic “failure” appears to be a not uncommon situation in police forces across Canada. What, then, is the effect? [ 21 ] The Crown also cited paras. 27 to 29 of R v Classic Smokehouse and Leader Cold Storage , 2012 BCPC 232 : [27] I accept that an applicant under s. 490(2) of the Code must satisfy the justice that there is an on-going investigation. However, the burden of proof on this issue is very low.

I reject the proposition that this burden can only be met if the affiant sets out in his affidavit the details of the investigative steps that have been taken up to the date of the application. The affidavit filed in support of the application need only contain sufficient information to satisfy the court that there is an on-going investigation. In my view, the information that is required to meet this burden will depend on the nature of the investigation itself. One can well imagine situations wherein the facts of the case speak for themselves.

For example, in a case alleging fraud upon Revenue Canada over a period of 5 years, coupled with the seizure of 700 boxes of financial documents, an assertion by the affiant that the investigation is on-going and more time beyond the original 3 month detention period is required to analyse the documents would likely be sufficient, on its face, to satisfy the court that a longer detention period was warranted. [28] Once the justice is satisfied that there is an on-going investigation, the justice must then determine, having regard to the nature of the investigation, whether an extension of the period for detaining the seized property is warranted and, if so, how long.

The focus here is on the general nature of the investigation, the investigative steps that still need to be taken and the affiant's assessment of the amount of additional time that is required. In this respect, I am mindful of the concluding word of Corbett J. in Tennina [ R v Tennina , [2007] OJ No. 4678 (Ont Sup Ct) , 2008 ONCA 498 (Ont CA) ] at para 37: Where there is an active, ongoing investigation, it should only be in the rarest of cases that an extension is refused within the first year of detention.

Thereafter, the bar is raised higher. [29] Once it has been established that there is an on-going investigation, I see no need for the justice to assess the progress of the investigation prior to the date of the application. In my view, such an inquiry is of little value when determining how much longer the detention time should be. The danger of embarking upon such an inquiry is that one runs the risk of drifting into an area that is of no concern to the justice on the s. 490(2) application, that being the reasonableness of the investigative steps taken during the initial three month detention period.

In my view, that is precisely what happened in the Edmonton Police Service case [2011 ABPC 124]. [ 22 ] However, another salient case was not mentioned in the Crown brief, namely R v H.G. and I.O.I.C. Inc., 2022 BCPC 298 . There, Classic Smokehouse was cited with approval. The judge also reviewed other authorities with a view to jurisdiction and what is required under s. 490(2).

At paras. 22 and 23 the court stated: [22] In my view, it is clear from the various authorities that an Application of Further Detention of Things Seized under s. 490(2) must be perfected prior to the expiration of the current detention period or jurisdiction will be lost under s. 490(2). Furthermore, in my view, for an application to be perfected under s. 490(2), the following must take place prior to the expiry of the current detention period:

a) The Application must be filed and a returnable date given for a court ap pearance before a justice.

Section 2 of the Criminal Code defines justices as "justice means a justice of the peace or provincial court judge, and includes two or more justices where two or more justices are, by law, required to act or, by law, act or have jurisdiction".

b) There must be three clear days' notice given to the opposing party with respect to the returnable date.

c) The returnable date must be prior to the expiration of the detention period. In this case, the current detention period was 90 days.

d) The returnable date must be before a justice.

e) The matter must be spoken to in Court, as per Mr. Justice Riley in Further Detention of Things Seized (Re ) , 2021 BCSC 1323 , "however briefly". There is no suggestion by Mr. Justice Riley that a hearing such as a contested hearing must actually commence.

[23] Once all of the above is done, then the application is seen to be perfected and all of this must take place prior to the expiry of the current detention period. Again, in this case, the initial detention period was 90 days. [Emphasis added] [ 23 ] H.G. specifically held there was a requirement for notice. It was open to that court to indicate there was potential to make such an application without notice. It did not. By implication, if not expressly, H.G. stands for the proposition that notice must be given on such an application. The Crown’s brief does not deal with this principle at all.

Instead, the Crown has chosen to make an assumption that there is an error or a “gap”. In this case no notice was given and it must be determined whether the application has even been perfected at all or on time. [ 24 ] Recently in R v Skejeie and Mountain , 2023 BCPC 97 , H.G. was confirmed and summarized at para. 6: [6] H.G. and I.O.I.C. Inc. stands for the proposition that: 1. As long as you apply for an Order For Further Detention Of Things Seized in the court registry before the valid Detention Order For Things Seized expires, 2. Provide the opposing party with three clear day’s notice, and 3.

The application gets placed in front of a judicial officer, including a justice of the peace, before the valid Detention Order For Things Seized expires, then the actual hearing does not have to commence. As stated in paragraph 27 of H.G. and I.O.I.C. Inc. : Finally, the matter was spoken to, however briefly, on June 30, 2022. There is no dispute by the respondent that the matter was spoken to in court on June 30, 2022. The respondent, however, argues that the actual contested hearing did not commence on that day. However, in my view, Mr.

Justice Riley emphasizes that the matter must only be spoken to, as opposed to a contested hearing commencing. [ 25 ] The notice and timing requirements were reviewed and strictly upheld in R v Booth , 2021 BCPC 169 . [ 26 ] Respectfully, the Crown’s brief oversimplifies the requirements and ignores the case law which holds that notice to the opposing side is mandatory, and which sets clear timing requirements. The Putative “Gap” [ 27 ] The Crown next asserts that the lack of any express statutory provision allowing ex parte applications to be made is an error or “gap” made inadvertently by Parliament.

Let us examine that assertion. [ 28 ] The Crown places primary reliance on Further Detention of Things Seized (Re), 2018 BCSC 2506 . There, the Crown applied to defer the notice requirement and extend investigators’ possession of seized items. [ 29 ] For present purposes, from that case the first matter arising (which the Crown’s brief does not mention or deal with) is at para. 4: [4] Judges of this court have granted previous applications for extensions in this particular investigation, and in other similar situations, following an in camera hearing and without notice.

Despite granting the applications however, some of those judges expressed reservations about their authority to do so, in light of the express notice requirements of s.490(3) . Crown counsel candidly described those concerns as part of his submissions. [Emphasis added] This statement was re-emphasized at para. 11: [11] On the face of it, as other judges have pointed out, there is the unambiguous requirement in s. 490(3) of three days' notice to the persons from whom the items were seized .

To permit anything else could certainly be characterized as judicial legislation, outside the permitted ambit of inherent jurisdiction. [Emphasis added] [ 30 ] Thus, from this comment it is clear the British Columbia judges were far from unanimous (much less sanguine) about the jurisdiction to hear s. 490 applications without any notice to the interested party, or to “fill the gap”.

This comment must be linked to para. 3 where it was recognized that s. 490(3) clearly sets out that three clear days notice is required for this type of application. [ 31 ] The second matter arising is what, in my view, is the misinterpretation of an essential element of R v Caron , 2011 SCC 5 , [2011] 1 SCR 78 . At para. 10 of Further Detention of Things Seized (Re) , Justice Schultes cited para. 24 of Caron :

[10] The court’s ability to supplement gaps in legislation to prevent an absurdity is pursuant to its inherent jurisdiction. As explainedin R. v. Caron, 2011 SCC 5, inherent jurisdiction is “a residual source of powers, which the court may draw upon as necessary wheneverit is just or equitable to do so “…to enable “the judiciary to uphold, to protect and to fulfil the judicial function of administering justiceaccording to law in a regular, orderly and effective manner” (para. 24).

The important qualification of the exercise of this jurisdiction, atpara. 32, is that a court must be able to do so without “contravening” any statutory provision. [32] The issue is that the Crown rather blithely argues that this Court should readily use its inherent jurisdiction tocure what may or may not be a “gap”.

As noted in para. 11 of Further Detention of Things Seized (Re) (and further in the analysissection below) in fact caution is warranted in using inherent jurisdiction. [33] So, is there a “gap” and if so is it “fillable”? [34] I begin with Beattie v National Frontier Insurance Co. (2003), 68 OR (3d) 60, (Ont CA).There, the

interpretation of legislative and regulatory insurance provisions were said to lead to an absurdity, as the Crown argues here. Itwas held that even though an

interpretation that leads to absurd consequences ought to be rejected in favour of the

interpretation thatavoids absurdity, a court cannot do that if – because of the clear language used by the statute – there is no plausible alternateinterpretation. In other words, if s. 490 was ambiguous and capable of more than one meaning, courts should opt for the meaning that isnot absurd. But where the legislation is clear, where no alternative

interpretations exist, then the clear words must be followed andapplied notwithstanding that they lead to an absurdity. [35] It is a well-founded principle of long standing that legislation is presumed to be accurate and properly drafted,which runs consequent to another presumption that the legislature does not make mistakes. [36] In Beattie the Ontario Court of Appeal upheld the motions judge and refused to “fill the gap”, even though thisresulted in an absurdity. There was no ambiguity, thus the court was prevented from intervening.

To do so, a court would have to strayfrom its own proper constitutional lane and essentially legislate through judicial intervention. [37] At paras. 16 to 18 of Beattie clear guidance was found in Supreme Court authority and in Ruth Sullivan, Sullivanand Driedger on the Construction of Statutes, 4th ed (Markham: Butterworths, 2002): [16] Section 30(4) uses language with the precision that one expects in modern legislation, yet s. 30(4) fails to achieve the legislativepurpose of s. 30. Indeed, as a result of a likely drafting oversight, s. 30(4) has achieved the opposite purpose.

While in some cases thecourt will come to the rescue of the legislature by correcting its drafting error, these cases involve minor and obvious errors thatcan easily be corrected, unlike this case in which the correction of the error as proposed by the insurer would involve asubstantial exercise in impermissible judicial redrafting. Moreover, in asking the court to do so, the insurer recognizes that thetextual meaning of s. 30(4) is plain and clear. [17] In Friesen v.

Canada, (SCC), [1995] 3 S.C.R. 103, 127 D.L.R. (4th) 193, the Supreme Court of Canada explainedthe rationale that precludes the court from engaging in redrafting legislation that has failed to achieve a legislative purpose. In Friesen,the court was asked to add language to the definition of "inventory" in the Income Tax Act. At para. 27, Major J. explained why the courtwas precluded from doing so: The principal problem with the respondent's

interpretation is that the [proposed] words do not appear in the definition in the Income TaxAct. The addition of these words to the definition effects a significant change to the sense of the definition. It is a basic principle ofstatutory

interpretation that the court should not accept an

interpretation which requires the insertion of extra wording where there isanother acceptable

interpretation which does not require any additional wording. [18] In addition, it is helpful to consider Professor Sullivan's analysis of why courts do not have jurisdiction to fill legislative gaps. Thisis what she writes, at p. 136: While courts are willing to correct drafting errors, they are reluctant to fill gaps in legislation. This reluctance is grounded in twofactors. First, unlike mistakes, which are always inadvertent, a gap in legislation may be deliberate. Gaps may result from faultydrafting but equally they may result from factual misconceptions, poor planning or even a considered policy choice.

For thisreason, gaps are taken to embody the actual intentions of the legislature, which courts are bound to respect. It is up to thelegislature rather than the courts to effect any desired change.

Second, whether inadvertent or not, gaps result from provisionsor schemes that are under-inclusive, and correcting under-inclusiveness would require courts to legislate. [19] Applying the presumption that the legislature does not make mistakes, if it had intended to completely exclude the insurer from itsstatutory obligation to pay SABS to injured persons convicted of a criminal offence, it would have inserted the necessary language tomake that clear.

That the legislature failed to do so as a result of a likely oversight does not permit the court to remedy theoversight by redrafting the regulation. [Emphasis added] [38] Beattie remains good law in Canada. It does not appear to be mentioned in the British Columbia line of casesupon which the federal Crown’s position rests. For example, Beattie was recently directly applied in Johnstone v Mistawasis NéhiyawakFirst Nation, 2022 FC 492 at paras 65 and 106: [65] Subsections 17(2) and 21(7) are inapplicable in the context of quarantined electors and do not impose the obligation alleged byMs. Johnstone. Ms.

Johnstone invites this Court to engage in “impermissible judicial redrafting” (Beattie v National FrontierInsurance Co (2003), (ON CA), 233 DLR (4th) 329, 68 OR (3d) 60 at para 16 [Beattie]). Canadian courts may onlyfill gaps in legislative schemes where a flaw can be characterized as a minor drafting error (R v Vinepal, 2015 BCCA 349 at paras

17-19; Stone v Woodstock (Town), 2006 NBCA 71 , [2006] NBJ No 277 (NBCA), 302 NBR (2d) 165). The absence of aprovision requiring the EO to bring a quarantined elector a ballot is not a minor drafting error. . . . [106] Courts must presume that the legislature does not make mistakes. If Parliament wanted specific identificationrequirements to apply, it would have included the necessary language to make that clear (Beattie at para 19). In my opinion, thelegislature’s silence on this issue is likely a “considered policy choice” to defer to participating First Nations.

In Paquachan [2017 SKQB239], Justice Layh acknowledged that the EO implemented their own “procedural safeguards” by asking electors for photo identificationor asking them for their name, birth date, and treaty number (at para 44). Justice Layh did not interfere with the First Nation’s approach. [Emphasis added] [39] Beattie has been applied in the criminal law context where requests were made to fill ostensible gaps inlegislation. For example, see R v Downey, 2019 ONSC 6167 at para 102: [102] Although an

interpretation that leads to absurd consequences should be rejected in favour of an

interpretation that avoidsabsurdity, the court cannot do so if, because of the clarity of the language used by the legislature, there is no plausible alternativeinterpretation (see Beattie v. National Frontier Insurance Co. (2003), (ON CA), 68 O.R. (3d) 60 (C.A.), at para. 14).

Also see: - R v Conway, 2010 SCC 22, [2010] 1 SCR 765, where it is noted at para. 97 “… barring a constitutional challenge to thelegislation, no judicial fiat can overrule Parliament’s clear expression of intent”. - In expressing this view, the Supreme Court relied on a number of decisions including its own in R v McIntosh, [1995] 1 SCR 686,: “where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by thelegislature, it must be enforced however harsh or absurd or contrary to common sense the result may be” (para. 34).

Further: “Parliament... has the right to legislate illogically (assuming that this does not raise constitutional concerns). And if Parliament is not satisfied withthe judicial application of its illogical enactments, then Parliament may amend them accordingly” (para. 41). - Also relied upon was R v Huggins, 2010 ONCA 746 at para 17, 326 DLR (4th) 720: “the clear wording of a statute must be giveneffect even if it may lead to an absurdity”. [40] Nowhere does the Crown’s brief deal with any of these concepts concerning proper statutory

interpretation. Thisis a major flaw in its argument. [41] Yet further, the Crown has not addressed ss. 490(9) and (9.1).

In s. 490(9), if the things seized are not neededfor a proper purpose, or no application to extend has been brought, then the things seized are to be returned to the person from whomthey were seized (if their possession was lawful) or the owner of same. [42] In s. 490(9.1), notwithstanding subsection (9), a judge can extend the detention of the things seized even if thetime limits have expired as long as it is shown that the things are still needed for the investigation and that it is in the interests of justiceto grant an extension. [43] It strikes me that these two subsections operate to provide the Crown with a different opportunity to get the typeof relief it now seeks.

Granted, these subsections impose a higher burden on the Crown but there is no application under thosesubsections before me. They are not even referenced in the Crown brief. These subsections have been used in the past; see, for example,Re: Applications under ss. 490(9.1) and 487.3 of the Criminal Code, 2021 BCPC 31; Booth; and Further Detention of Things Seized(Re), 2021 BCSC 2324. [44] Here, there is no ambiguity in s. 490. The Crown may not like what the

section says, or what it means forcriminal investigations, but it cannot be argued that s. 490 is unclear. That being said, relying on the above authorities, it cannot bedetermined that there is some sort of legislative “gap” as argued by the federal Crown in this case. If there is no gap, there is nothing forthis Court to fill.

Legislative History [45] When what is now s. 490 first appeared in the Criminal Code in 1892 (The Criminal Code, 1892, 55-56 Vict, c29), this was the wording: 569 […] 4. — Search warrant When any such thing is seized and brought before such justice he may detain it, taking reasonable care to preserve it till the conclusion ofthe investigation; and, if any one is committed for trial, he may order it further to be detained for the purpose of evidence on the trial.

Ifno one is committed, the justice shall direct such thing to be restored to the person from whom it was taken, except in the cases nexthereinafter mentioned, unless he is authorized or required by law to dispense of it otherwise. In case any improved arm or ammunition inrespect to which any offence under

section one hundred and sixteen has been committed has been seized, it shall be forfeited to theCrown.

[ 46 ] It was not until the 1953-1954 major amendments that the limit of three months was placed on detained items (see Criminal Code , SC 1953-1954, c 51, s 432(1)). [ 47 ] Then in 1985, upon the most recent wholesale revision of the Criminal Code , s. 490 was amended to be nearly identical to the current wording (see Criminal Law Amendment Act , 1985 , RSC 1985, c 27 (1st Supp), s 73 [Bill C-18]). [ 48 ] Unfortunately for present purposes, since s. 490 was amended alongside over 100 other clauses in 1985, Hansard does not provide an in-depth discussion of the changes that were made and whether Parliament would have turned its mind to a situation where items were seized without the knowledge of the person under investigation.

Most of the debates and discussions at committee surrounded amendments to items such as the impaired driving provisions, the area of obscenity and pornography, and international conventions ( House of Commons Debates , 33rd Parl, 1st Sess, vol 1 (20 Dec 1984) at 1383). However, at the second reading of Bill C-18, the Honourable John Crosbie, Minister of Justice and Attorney General of Canada, said the following about the amendments to s. 490 : There is a provision in the Bill which calls for the prompt return of seized property.

We have all happened upon people who were quite annoyed because they had suffered a theft or a break-in and their property had to be used as evidence in court proceedings. It often takes months, sometimes years, before that property is returned to those individuals. The proposed amendments will require reviews to be made at each stage of the proceedings, and will require that such property be quickly returned to the owners ( ibid at 1390). [ 49 ] The Honourable Mr.

Crosbie made a very similar remark at a committee meeting the following year (see House of Commons , Standing Committee on Justice and Legal Affairs, Evidence , 33-1, No 5 (22 Jan 1985) at 5:9). [ 50 ] On a later date with the same committee, Mr. Joel Pink (at the time Vice-Chair, Criminal Justice Section, Canadian Bar Association) attended and made the following comments about the proposed amendments to s. 490 : Next, dealing with seizure of corporate records, we also recommend that the suggestions contained in the bill should be adopted.

With the extensive investigation now being carried out by our law enforcement agencies, property is being seized from corporations which in some cases is vital to its operation. By seizing all the books of a corporation, some of which will not be needed in the prosecution, our law enforcement agencies will place straight-jackets on the corporation’s activities.

It is important that the property that is not required for prosecution of a person be returned to that person forthwith ( House of Commons, Standing Committee on Justice and Legal Affairs, Evidence , 33-1, No 6 (24 Jan 1985 at 6:8)). [ 51 ] Parliament used express language in s. 490 that if the Crown applied to detain the property for longer than three months, notice must be given to the person from whom the detained thing was seized. Parliament may also have deliberately omitted any provision that allowed for an application to dispense with notice under this section.

Therefore, this might not be a legislative gap at all and interpreting s. 490 as the Crown now wishes might cross over into judicial redrafting. [ 52 ] This ties into the discussion in the previous section.

See Toronto (City) v Ontario (Attorney General) , 2021 SCC 34 , 462 DLR (4th) 1 , for the proposition that an absence of something in text is prima facie a deliberate omission and not a gap. [ 53 ] From the researched legislative history and debates above, the discussions surrounding the amendment to s. 490 illustrate that the intention of Parliament and the concern addressed by the amendment was that individuals and corporations whom have had property seized from them shall have that property returned in a timely manner. This further bolsters the view that there is no “gap” legislatively.

All of this suggests Parliament acted deliberately in order to ensure that peace officers were obliged to return seized property swiftly, and only retain same for an extended period after: (

a) proper notice was given; (

b) the party entitled to possession of that property had a voice in the decision to extend; and (

c) any extension was subject to judicial oversight. [ 54 ] As a result, I find there is no legislative gap, no ambiguity, such that this Court can intervene and read in new words and new meanings to s. 490 . Notwithstanding the decisions of my colleagues in British Columbia, I cannot agree that s. 490 is ambiguous even if it creates absurdities. The use of inherent jurisdiction [ 55 ] I might be incorrect in the above analysis. There might be an ambiguity, or at least a legislative gap.

As a result, I turn to the Crown’s proposal as to the means by which this Court should fill the gap: use of its inherent jurisdiction. [ 56 ] Numerous modern appellate authorities caution superior courts against quick and easy recourse to their inherent jurisdiction to solve all their problems. I have already cited the Supreme Court’s decision in Caron .

The Court’s recognition of the expanse of such jurisdiction and its rejection of a “categories” approach to interpret inherent jurisdiction (at para. 29) was swiftly followed by the caution as to overuse of that power at para. 30: [30] Of course the very plenitude of this inherent jurisdiction requires that it be exercised sparingly and with caution. In the case of inferior tribunals, the superior court may render “assistance” (not meddle), but only in circumstances where the inferior tribunals are powerless to act and it is essential to avoid an injustice that action be taken.

This requirement is consistent with the “sufficiently special” circumstances required for interim costs orders by Little Sisters (No. 2 [2007 SCC 2 , [2007] 1 SCR 38 ], at para. 37, as will be discussed. At para. 32 the Supreme Court further noted that a superior court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court so long as it can do so without contravening any statutory provision. [ 57 ] Since then, this principle has been cited a number of times by the Supreme Court of Canada (see for example

Ontario v Criminal Lawyer’s Association of Ontario, 2013 SCC 43 at para 115, [2013] 3 SCR 3 [CLAO]; Endean v British Columbia,2016 SCC 42 at paras 23 and 24, [2016] 2 SCR 162.

In Endean: [23] The inherent powers of superior courts are central to the role of those courts, which form the backbone of our judicial system.Inherent jurisdiction derives from the very nature of the court as a superior court of law and may be defined as a “reserve or fund ofpowers” or a “residual source of powers”, which a superior court “may draw upon as necessary whenever it is just or equitable to do so,and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice betweenthe parties and to secure a fair trial between them”: I. H.

Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs.23, at p. 51, cited with approval in, e.g., Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para.20; R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, at para. 24; and MacMillan Bloedel Ltd. v. Simpson, (SCC), [1995] 4S.C.R. 725, at paras. 29-31. [24] The courts have recognized that, given the broad and loosely defined nature of these powers, they should be “exercisedsparingly and with caution”: Caron [2011 SCC 5, [2011] 1 S.C.R. 78], at para. 30.

It follows that courts should first determine thescope of express grants of statutory powers before dipping into this important but murky pool of residual authority that formstheir inherent jurisdiction: see, e.g., Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, [2010] 3 S.C.R. 379, at paras.63-68.

As The Honourable Georgina Jackson and Janis Sarra write, “[i]t is only where broad statutory authority is unavailable thatinherent jurisdiction needs to be considered as a possible judicial tool to utilize in the circumstances”: “Selecting the Judicial Toolto get the Job Done: An Examination of Statutory

Interpretation, Discretionary Power and Inherent Jurisdiction in Insolvency Matters”,in J. P. Sarra, ed., Annual Review of Insolvency Law 2007 (2008), 41, at p. 73. [Emphasis added] [58] This body of law recognizes that in Canada’s constitutional democracy the three branches (executive,legislative, judiciary) each has a critical role to play. In CLAO, Justice Karakatsanis wrote at paras. 26 to 31: [26] With the advent of the Charter, the superior courts’ inherent jurisdiction must also support their independence in safeguarding thevalues and principles the Charter has entrenched in our constitutional order.

Thus, the inherent jurisdiction of superior courts providespowers that are essential to the administration of justice and the maintenance of the rule of law and the Constitution. It includes thoseresidual powers required to permit the courts to fulfill the judicial function of administering justice according to law in a regular, orderlyand effective manner — subject to any statutory provisions.

I would add, however, that the powers recognized as part of the courts’inherent jurisdiction are limited by the separation of powers that exists among the various players in our constitutional order and by theparticular institutional capacities that have evolved from that separation. [27] This Court has long recognized that our constitutional framework prescribes different roles for the executive, legislative and judicialbranches (see Fraser v. Public Service Staff Relations Board, (SCC), [1985] 2 S.C.R. 455, at pp. 469-70).

The contentof these various constitutional roles has been shaped by the history and evolution of our constitutional order (see Reference re Secessionof Quebec, (SCC), [1998] 2 S.C.R. 217, at paras. 49-52). [28] Over several centuries of transformation and conflict, the English system evolved from one in which power was centralized in theCrown to one in which the powers of the state were exercised by way of distinct organs with separate functions.

The development ofseparate executive, legislative and judicial functions has allowed for the evolution of certain core competencies in the various institutionsvested with these functions. The legislative branch makes policy choices, adopts laws and holds the purse strings of government, as onlyit can authorize the spending of public funds. The executive implements and administers those policy choices and laws with theassistance of a professional public service.

The judiciary maintains the rule of law, by interpreting and applying these laws through theindependent and impartial adjudication of references and disputes, and protects the fundamental liberties and freedoms guaranteed underthe Charter. [29] All three branches have distinct institutional capacities and play critical and complementary roles in our constitutionaldemocracy. However, each branch will be unable to fulfill its role if it is unduly interfered with by the others. In New BrunswickBroadcasting Co. v.

Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319, McLachlin J.affirmed the importance of respecting the separate roles and institutional capacities of Canada’s branches of government for ourconstitutional order, holding that “[i]t is fundamental to the working of government as a whole that all these parts play their properrole.

It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimatesphere of activity of the other” (p. 389). [30] Accordingly, the limits of the court’s inherent jurisdiction must be responsive to the proper function of the separatebranches of government, lest it upset the balance of roles, responsibilities and capacities that has evolved in our system ofgovernance over the course of centuries. [31] Indeed, even where courts have the jurisdiction to address matters that fall within the constitutional role of the otherbranches of government, they must give sufficient weight to the constitutional responsibilities of the legislative and executivebranches, as in certain cases the other branch will be “better placed to make such decisions within a range of constitutional options”(Canada (Prime Minister) v.

Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 37). [Emphasis added] [59] This has been recognized in Saskatchewan. In the civil context is Rekken v Saskatchewan (Health Region #1),2015 SKCA 36 at para 25, 457 Sask R 167: [25] Before moving off the topic of aggravated damages, it is also important to address the extensive submissions of the appellantsrelating to the inherent jurisdiction of the Court of Queen’s Bench.

Simply put, the appellants urge this Court to apply the long-standingconcept of the inherent jurisdiction of the Court of Queen’s Bench to fashion a remedy in appropriate situations where a vacuum exists.No one takes issue with this principle. However, inherent jurisdiction cannot be exercised in contravention of a statutory provision:

see Zipchen v Bainbridge, 2008 SKCA 87 at para 70, [2008] 12 WWR 397. In this situation, we have the statutory provisions of TheFatal Accidents Act and binding case law that negates the use of the remedy.

In other words, the inherent jurisdiction of the court isousted by the legislative provisions. [Emphasis added] [60] Popescul J. (as he then was) recognized the limitations on the use of this Court’s inherent jurisdiction inH.N.M.L. v C.P.J.L., 2010 SKQB 456, 367 Sask R 111: [13] There are numerous cases where a court has relied upon its inherent jurisdiction to supplement statutes, regulations or rules of courtto effectively control its own process and to ensure that the administration of justice is not undermined. However, the exercise ofinherent jurisdiction is not infinite.

Jurisprudence in the area has generally recognized at least three important limitations. [14] Firstly, the court should be careful to ensure that the purported exercise of inherent jurisdiction does not overtly conflictwith a statute or rule of law. See Halstead v. Anderson, [(1993), (SK KB), 115 Sask R 257] , at paragraph 36. [15] Secondly, the exercise of inherent jurisdiction should be exercised sparingly and only in clear cases. See Leier v. Shumiatcher(No. 2) (1962), (SK CA), 39 W.W.R. 446 (Sask. C.A.), and Rowe v. Brandon Packers Ltd. (1961), (MB CA), 29 D.L.R. (2d) 246 (Man.

C.A.). [16] Thirdly, the relief sought ought not be granted where it can be reasonably or realistically obtained by some other lawful means. SeeFortugno v. Wickstrom, 2005 SKQB 53, 259 Sask. R. 315. [17] There is good reason for these restraints. If the remedy sought is available to the applicant by some other means, bypassing orduplicating existing legal procedures should be avoided because there is a risk of making an order that is contrary to law.

Also, grantingdiscretionary orders outside the procedural framework established by statute, rules of court or common law introduces anelement of uncertainty in the law. [Emphasis added] [61] Schwann J. (as she then was) considered H.N.M.L (and other cases) in Egware v Regina (City), 2016 SKQB 388,95 CPC (7th) 174, and stated at paras. 44 and 45: [44] Applying these principles to the facts of this case leads me to the following conclusions. First and foremost, the exercise of inherentjurisdiction should be undertaken sparingly and only in the clearest of cases.

Exercise of the court’s inherent powers in this case wouldbe in disregard for the express wording of the statute, existing jurisprudence and the need for certainty and finality in litigation. This isnot, in my view, the “clearest of cases”. [45] Second, exercise of this Court’s inherent powers appears to be in conflict with clear statutory direction.

By enacting s. 329 of theAct [The Cities Act, SS 2002, c C-11.1] in relation to appeals from a local appeal board, the Legislature of this province decided not onlyto place a time limit on the right of appeal, but precluded the possibility of a discretionary expansion of that right.

In contrast, ss. 306(6)and (7) of the Act identifies circumstances where relief may be granted from the 30 day time frame imposed in relation to actions againsta city arising from its failure to maintain streets and public places. [62] These principles lead me to be cautious rather than cavalier in terms of using this Court’s inherent jurisdiction tofill a legislative gap that may not even be such, in a statutory provision that is clear and unambiguous. 2. Should the requested order be granted? [63] I have considered the applicable legal principles set out above and have applied them to the facts before me.

Ihave concluded I cannot grant the relief sought by the federal Crown in this case, on these facts, and on this material. [64] I have remained mindful of the admonition in the authorities that I am not to second-guess the investigators nordelve too deeply into the investigation. I have not done so. However, there is a significant omission in the material. Specifically, I refer tothe affiant’s assertion that retention of the exhibits seized for nine months should bring the investigation to a conclusion with the identityof the fourth person involved likely discerned. Why nine months?

How would this happen within that time? Having regard to the casescited above (notably A.H. at para 40, cited at para. 18 above) surely if the investigators and the Crown want the detention period to betrebled, then at least some explanation needs to be tendered. The bar is set relatively low, but it is not as if there is no bar at all. [65] If this had been the only obstacle to this application I would have sought further and better material from theCrown and would have decided the matter after receiving same.

It is not the only issue. [66] There has also been no explanation as to why the owners or participants in this business (the very people whoare suspects) would have to receive the notice of this application, as opposed to X, the informant from whom the papers were seized.Section 490(3) speaks of the application being on notice to “the person from whom the thing detained was seized”. I have no evidence orargument on why the owners/principals of the business would receive notice as opposed to the person from whom the papers wereseized.

If notice were given to the latter person, then the investigative concerns might well evaporate.

[ 67 ] Further, this application was not perfected in the manner set out in the above authorities, either at all or within the statutory time limitation. [ 68 ] Also, as detailed, looking at the legislative history, the clear wording of s. 490(3) and the case law, there is no legislative gap which needs to be filled as there is no ambiguity in the wording of the statute. [ 69 ] Further, no application was made pursuant to s. 490(9.1) although the same line of British Columbia authorities relied upon by the federal Crown have been extended to consider that subsection. [ 70 ] Yet further, the use of inherent jurisdiction is not some sort of judicial free-for-all.

It is to be used sparingly, carefully, and only in the clearest of cases. This is not such a case. V. CONCLUSION [ 71 ] As a result, for all the reasons set out herein, I must dismiss the Crown’s application. J. R.W. DANYLIUK