In the context of a lawsuit by the Agence du revenu du Québec (ARQ) for failure to report and remit various tax amounts, the defendants sought to exclude the evidence seized by the ARQ under a search warrant authorized by the Court of Quebec. The reviewing judge (also of the Court of Quebec), in Agence du revenu du Québec v. Exacte, 2020 QCCQ 2840, clarified the rules for obtaining a search warrant, particularly the requirements for drafting the required supporting affidavit, and defined the duties imposed on the party who appears ex parte before the authorizing judge. Those rules equally apply to application for search warrants made by the Autorité des marchés financiers in relation to suspected breaches of the Securities Act.
The reviewing judge pointed out that a judge may authorize a search warrant if he/she is satisfied that there are (i) reasonable grounds to believe that an offence is being or has been committed, and that (ii) there are, in the targeted place, such things that may afford evidence of the offence or that are being or have been used in the commission of the offence.
In this instance, the reviewing judge found that the warrant should not have been authorized given the insufficient grounds to support the application. Although it was legitimate for the ARQ to entertain suspicions about the defendants’ failure to respect fiscal obligations, the drafting of the affidavit was far from clear and concise, and contained irrelevant facts. It did not meet the standard of “reasonable probability” of an offence being or having been committed. The affidavit contained several biased and irrelevant allegations that could lead to erroneous deductions on the part of the authorizing judge, in addition to being based on conjectures.
Moreover, the reviewing judge found that the scope of the evidence allowed to be seized by the authorizing judge was far too broad and was not reasonably supported by the information contained in the affidavit. The search warrant was therefore authorized in breach of s. 8 of the Canadian Charter.
Applying the criteria confirmed by the Court of Appeal in Sylvain c. R., 2020 QCCA 400, the reviewing judge found that the seriousness of the state conduct, the impact of the violation on the rights of the defendants and the interest of society in the adjudication of the case on its merits all militated towards the exclusion of the evidence seized.
The ARQ knew that a number of companies having no connection to the defendants had their place of business at the location targeted by the search warrant. The authorizing judge was not informed by the ARQ, appearing ex parte before him, that none of these companies occupied its own secluded premises. The warrant left too much discretion to the seizing officers, who ultimately confused the location and the object of the search. The ARQ took advantage of the situation to seize a considerable number of irrelevant documents, some even belonging to third parties, which may be considered an abusive and unreasonable conduct. The ARQ also failed to exercise the required due diligence in the presentation of the report of the seized items.
Overall, it was determined that the ARQ lacked rigor in its investigation, in drafting the supporting affidavit and in executing the search warrant.
The decision in Exacte summarises well the principles governing the application and execution of a search warrant:
- The affidavit supporting the application for a search warrant must set out all the relevant facts, favorable or not, in a complete, sincere, clear and concise manner;
- Biased interpretations which can lead to erroneous deductions by the authorizing judge must be avoided;
- The relevant facts must demonstrate the existence of a connection between the elements to be seized, the location of the search and the alleged offence. This connection must be established with sufficient precision so that the search warrant does not amount to an authorization to proceed to a “fishing expedition”;
- The principle of reasonable grounds to believe that an offence was committed and that evidence may be found at the location implies a requirement of reliability higher than mere suspicions or rumors;
- The principle of “reasonable grounds” is assessed based on the factual background and all the facts detailed in the supporting affidavit.