Comment le tribunal doit exercer son pouvoir discrétionnaire concernant la remise ou non des biens saisis quand la perquisition est cassée par certiorari

Re Commodore Business Machines Ltd. and Director of Investigation & Research et al., 1986 CanLII 2605 (ON SC)

Lien vers la décision

Viewed in the context of a continuing breach of Commodore's Charter right to be free from unreasonable search and seizure, it is appropriate to quash the search and seizure authorization dated May 4, 1983. As the law stands at the time of this application, those search and seizures were unconstitutional and the continued retention of the seized material offends the Charter.

Turning to the question of the return of the seized documents, this court has a discretion to order that materials seized under the authority of an authorization later quashed must either be returned or may be retained by the seizing authority: see Re Chapman and The Queen 1984 CanLII 2054 (ON CA), (1986), 9 D.L.R. (4th) 244, 12 C.C.C. (3d) 1, 46 O.R. (2d) 65 (Ont. C.A.); Dobney Foundry Ltd. et al. v. A.-G. Can. 1985 CanLII 712 (BC SC), (1985), 6 C.P.R. (3d) 195, 19 C.C.C. (3d) 465, [1985] 3 W.W.R. 626 (B.C.C.A.); Re Mandel et al. and The Queen reflex, (1986), 25 C.C.C. (3d) 461 (Ont. H.C.J.). This discretion rests on both the inherent jurisdiction of the court and s. 24(1) of the Charter, and the grounds upon which this discretion should be exercised have been conveniently summarized by Esson J.A. in Re Dobney Foundry, supra, at p. 204 C.P.R., p. 474 C.C.C. as follows:

(1) A reviewing court, on quashing a search warrant, has power to order return of any goods seized under the warrant.

(2) If the Crown shows that the things seized are required to be retained for the purposes of a prosecution, either under a charge already laid or one intended to be laid in respect of a specified chargeable offence, the court may refuse to order the return.

(3) No particular formality is required in order for the Crown to show the requisite element of necessity to retain the things.

(4) The power to order return of goods is incidental to the power to quash but may also arise under s. 24(1) of the Charter if the search and seizure was unreasonable as well as illegal.

(5) The conduct of the prosecuting authorities in relation to the search and seizure is a factor to be considered in deciding whether to exercise the discretion.

(6) Other factors to be considered in exercising the discretion may be the seriousness of the alleged offence, the degree of potential cogency of the things in proving the charge, the nature of the defect in the warrant and the potential prejudice to the owner from being kept out of possession.

*** Confirmé par Commodore Business Machines Ltd. v. Canada (Director of Investigation & Research) (Ont. C.A.), 1988 CanLII 4834 (ON CA) ***