Majority
The following are the reasons delivered by
The following are the reasons delivered by
Thomson Newspapers Limited ("Thomson") is a major publication corporation operating across Canada. Brian W. Slaight is Executive Vice-President and a director of Thomson. Peter T. Bogart is Vice-President, Finance, Treasurer, and a director of Thomson. Paul E. Weeks is Thomson's Controller.
On August 16, 1985 the individual appellants were served with Orders to Appear before Richard B. Holden, Vice-Chairman of the Restrictive Trade Practices Commission or a person named by him to be examined under oath and to make production of documents described in the Orders to Appear. The Orders to Appear were issued by Holden pursuant to s. 17 of the Combines Investigation Act in connection with an inquiry being conducted by the Director of Investigation and Research to determine whether evidence existed that Thomson or its subsidiary companies had committed the indictable offence of predatory pricing contrary to s. 34(1)(c) of the Act at any time between January 1, 1976 and the date of the inquiry.
Thomson was informed of the inquiry and the projected Orders to Appear by letter dated August 16, 1985 from Lawson A. W. Hunter, Director of Investigation and Research. The inquiry appears to have been in progress since at least July 1978 since during that month representatives of the Director searched and seized documents from the offices of Thomson and its subsidiaries pursuant to s. 10 of the Act in twenty‑two cities in Ontario, Saskatchewan, Alberta and British Columbia. In July 1983 the Director attempted further searches and seizures but these were quashed by the Federal Court of Canada as it was found that s. 10 of the Act which authorized the searches and seizures was unconstitutional.
By Notice of Application dated October 16, 1985 the appellants applied to the Ontario High Court for a declaration that s. 17 of the Act and the Orders to Appear were in conflict with s. 7 and s. 8 of the Charter and accordingly of no force or effect.
J. Holland J., in reasons reported at (1986), 54 O.R. (2d) 143, held that s. 17 of the Act violates s. 8 but not s. 7 of the Charter . His decision was appealed by the appellants and cross‑appealed by the respondents to the Ontario Court of Appeal. The Ontario Court of Appeal, in reasons reported at (1986), 57 O.R. (2d) 257, held that s. 17 violated neither section. Leave to appeal to this Court was granted on June 25, 1987, [1987] 1 S.C.R. xiv.
The constitutional question set by this Court reads as follows:
1.Is section 17 of the Combines Investigation Act, R.S.C. 1970, c. C‑23, inconsistent with the provisions of ss. 7 and 8 of the Canadian Charter of Rights and Freedoms , and therefore of no force or effect?
(a) At Trial
After reviewing the relevant provisions of the Combines Investigation Act and identifying the proper interpretive approach to be taken to the Charter , J. Holland J. turned specifically to the question of whether or not ss. 17(1) and 17(4) of the Act violated s. 8 of the Charter . He prefaced his analysis with the following remarks at p. 156:
J. Holland J. defined a seizure within the meaning of s. 8 of the Charter as "the taking hold, by a public authority, of a document or thing belonging to a person against that person's will" (p. 156). He found that the compulsory production of books and records authorized by ss. 17(1) and 17(4) was therefore a seizure. In so doing, he rejected the argument which succeeded in Ziegler v. Hunter, [1984] 2 F.C. 608 (C.A.), leave to appeal to the Supreme Court of Canada denied March 8, 1984, [1984] 1 S.C.R. xiv, that compelled production was the equivalent of an administrative subpoena duces tecum. He stated at p. 158:
Having found that compelled production under s. 17(1) constituted a seizure, the learned trial judge next considered whether the seizure was reasonable. Applying Hunter v. Southam Inc., [1984] 2 S.C.R. 145, he stated at pp. 160‑61 that:
(a)a system of prior authorization, by an entirely neutral and impartial arbiter who is capable of acting judicially in balancing the interests of the State against those of the individual;
(b)a requirement that the impartial arbiter must satisfy himself that the person seeking the authorization has reasonable grounds, established upon oath, to believe that an offence has been committed;
(c)a requirement that the impartial arbiter must satisfy himself that the person seeking the authorization has reasonable grounds to believe that something which will afford evidence of the particular offence under investigation will be recovered; and
(d)a requirement that the only documents which are authorized to be seized are those which are strictly relevant to the offence under investigation.
He found that none of these prerequisites were met by s. 17. He stated at p. 159:
Accordingly, J. Holland J. found that ss. 17(1) and 17(4) were contrary to s. 8 of the Charter . He also found that the provisions could not be justified under s. 1.
The learned trial judge next turned his attention to a consideration of s. 17(1), (2) and (8) in light of s. 7 of the Charter . After referring to this Court's decision in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, J. Holland J. stated that ss. 11(c) and 13 of the Charter were specific emanations of the s. 7 right. Having said this, he considered whether "the principles of fundamental justice" contained in s. 7 included any rights residual to those specifically enumerated in ss. 11(c) and 13.
He adopted the reasons given by Lysyk J. in Re Transpacific Tours Ltd. and Director of Investigation and Research (1985), 25 D.L.R. (4th) 202 (B.C.S.C.) and applied the majority decision of the British Columbia Court of Appeal in Haywood Securities Inc. v. Inter‑Tech Resource Group Inc. (1985), 24 D.L.R. (4th) 724, leave to appeal to the Supreme Court of Canada granted May 22, 1986, [1986] 1 S.C.R. x. In so doing J. Holland J. concluded that the principles of fundamental justice did not include any rights in relation to non‑compellability or self‑incrimination other than those expressly provided in ss. 11(c) and 13. This approach was consistent with that taken in Curr v. The Queen, [1972] S.C.R. 889, wherein Laskin J. (as he then was) ruled that s. 1(a) of the Canadian Bill of Rights did not contain any rights residual to those contained in s. 2(d). Laskin J. had come to this conclusion because he thought it ill‑advised to take a "piecemeal" approach to self‑incrimination in the context of the Canadian Bill of Rights.
After reviewing Curr and s. 5(2) of the Canada Evidence Act, R.S.C. 1970, c. E-10 (first enacted in 1893), J. Holland J. summarized his findings at pp. 180‑81 as follows:
He concluded therefore that, while portions of s. 17 of the Act violated s. 8 of the Charter , there was no violation of s. 7.
(b) The Ontario Court of Appeal (Houlden, Thorson and Grange JJ.A.)
Grange J.A. wrote for the court. He dealt with the s. 7 issue first and began by considering whether s. 7 contained a residual right against self‑incrimination. He stated at p. 261:
On the alleged right to remain silent, Grange J.A. held that "the right must be restricted to police inquiries and the like and the trial proceedings themselves"
(p. 262).
Grange J.A. then moved to s. 8 of the Charter and considered whether s. 17 could be construed as authorizing a "seizure" within the meaning of that section. He concluded that the s. 17 procedure for the production of documents did not constitute a seizure. He stated at pp. 268‑69:
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Moreover, even if s. 17 did contemplate a seizure Grange J.A. found that the seizure process was reasonable. He took pains to distinguish the s. 17 procedure from the s. 10 procedure which was struck down by this Court in Hunter v. Southam Inc., supra. At pages 269‑70 he quoted from the reasons of Marceau J. in Ziegler v. Hunter, supra, at p. 629:
The Ontario Court of Appeal accordingly found that s. 17 breached neither s. 7 nor s. 8 of the Charter .
In order to determine whether s. 17 of the Act conflicts with s. 7 or s. 8 of the Charter it is necessary to construe it in its proper legislative context.
Combines legislation has had a long history in Canada. Dickson J., as he then was, provided a brief historical summary of this legislation in Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206, at pp. 250‑54. He described the origins of the statute at p. 250:
Since that time the legislation has undergone significant change and may to some extent have lost its initial coherence. As Estey J. pointed out in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, at pp. 194‑95:
In the revision of 1986 referred to by Estey J. the Act was renamed the Competition Act : see S.C. 1986, c. 26. We are concerned in this case, however, with the pre‑1986 legislation which continues to apply to inquiries commenced before the revision came into force.
The Act (as amended up to 1986) provides for a system of investigation and research which allows the Director to determine facts relevant to particular issues of market behaviour, including breaches of prescribed guidelines set forth in the Act. In carrying out his duties the Director can obtain information in several ways. By virtue of s. 8 the Director is obliged to commence an inquiry when he has received an application from six persons who are of the opinion that a violation of the Act has or is about to occur. He must also commence an inquiry when he himself has reason to believe that a violation has or is about to occur or when he is directed to do so by the Minister of Consumer and Corporate Affairs. Section 9 allows the Director at any time during the course of an inquiry to require any person to make a written return under oath or affirmation. He may also, pursuant to s. 12, require evidence upon affidavit or written affirmation once approval has been granted from the Commission on an ex parte application.
Another fact finding method is created by s. 17 of the Act. Since this is the section under review in the present appeal, I set it out in its entirety:
As can be seen from the above, the Director, on an ex parte application, or a Commission member on his own motion, may compel the attendance of an individual to be examined under oath. That individual may also be compelled to produce records or other documents. The section 17 procedure may take place in conjunction with a s. 8 inquiry but may also be conducted independently of such inquiry. The Director need not have any belief that a violation of the Act has occurred when applying for a s. 17 order. He is not obliged to disclose the grounds for obtaining the order and he need not disclose the name of the person, if any, who is suspected of having violated the Act. There are no provisions governing the conduct of the hearing. That is left to the person conducting the hearing. A person who refuses to comply with an order under s. 17 can be punished by the Commission on an application to a judge pursuant to s. 17(3). A refusal may constitute an offence under ss. 40, 41 or 46.1 of the Act.
Section 20 of the Act is also relevant to the determination of this appeal. It provides:
This Court held in Irvine, supra, that s. 20(1) granted a limited right to counsel to those being examined under oath. Counsel can object to improper questions being put to his client and can re‑examine his client to clarify the client's testimony. However, counsel is not entitled to be present at the examination of other witnesses and so obviously cannot cross‑examine them. With regard to persons whose conduct is being inquired into under the Act, s. 20(1) gives the Commission a discretion to permit them to be represented by counsel. The language of the section is permissive. It is conceivable, therefore, that a person whose conduct is being inquired into will not be informed of that fact and may not be permitted to have counsel, depending upon how the Commission exercises its discretion.
Section 20(2) grants protection to witnesses similar to that provided in s. 5(2) of the Canada Evidence Act. No oral evidence given by a witness can subsequently be used against him except on a charge for perjury. However, nothing in the section protects the witness from the use of derivative evidence obtained as a result of his testimony. Moreover, nothing in s. 20(2) prevents the use of the documents against the witness. In fact, the Act creates certain evidentiary presumptions with regard to documentary evidence (see s. 45).
A section 17 hearing does not determine any rights or impose any liabilities. A variety of uses may be made of the information obtained as a result of the s. 17 hearing. Under section 14(1) the Director can terminate any inquiry currently in progress. Under section 15 he can forward materials to the Attorney General of Canada for review and further action. Section 15 provides:
Under section 18, the Director can, at any stage of an inquiry, if he is of the opinion that the evidence discloses an offence, prepare a statement of the evidence and submit it to the Commission and the person against whom the allegations are made. Upon receipt of the statement the Commission is compelled under s. 18(2) to set a place, time and date at which argument on the statement will be heard from the Director and the person to whom the matter relates. After this hearing the Commission is obliged to prepare a report for the Minister. Section 22 outlines other circumstances in which the Commission can prepare a report for the Minister. The Director may also as a result of a s. 17 hearing bring an application pursuant to Part IV.1 of the Act at which time he must prove his case as in a civil trial.
In summary of the above it is apparent that the Act contains numerous provisions enabling the Director to collect information relating to anti‑competitive behaviour. Once this information has been obtained a variety of uses can be made of it, including the referral of the matter to the Attorney General of Canada for possible prosecution. It is with this legislative framework in mind that we must decide whether s. 17 is inconsistent with ss. 7 and 8 of the Charter .
Section 7 of the Charter provides:
In Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, this Court ruled that s. 7 of the Charter had no application to corporations and was confined to the protection of human beings. Since no individuals were named as parties in that case, s. 7 could not be successfully invoked. However, in this appeal three of the appellants are individuals. If section 17 of the Combines Investigation Act violates these individuals' rights and cannot be justified under s. 1 of the Charter , it is rendered of no force or effect as a result of s. 52 of the Constitution Act, 1982 . Since the Combines Investigation Act does not provide for separate treatment of human beings and corporations, it follows that if s. 17 is of no force or effect in respect of human beings it must also be of no force or effect in respect of corporations. This appeal is therefore distinguishable from the Irwin Toy case. Consequently, the s. 7 issue raised by the appellants must be squarely addressed in this appeal.
The general framework for interpreting s. 7 of the Charter has now been settled by this Court. As with all provisions of the Charter s. 7 must be interpreted purposively, bearing in mind the interests it was designed to protect: see Re B.C. Motor Vehicle Act, supra, at pp. 499‑500. In order to succeed under s. 7, an applicant must show that his right to life, liberty and security of the person has been violated and that the violation which occurred was contrary to the principles of fundamental justice.
(a) Life, Liberty and Security of the Person
While the concepts of "life, liberty and security of the person" are closely linked in s. 7, it is not necessary for the citizen to show that his right to life, his right to liberty and his right to security of the person have all been violated in order to constitute a breach of the section. It is sufficient that one of them has been violated: see Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. The appellants submit that their liberty and security of the person have been violated because s. 17 compels them to attend before an examiner against their will and give testimony at the risk of punishment for failure to comply with that demand. They argue that their security of the person has been violated also by the fact that governmental authorities, while unable to introduce the s. 17 testimony directly in criminal proceedings, can obtain and utilize derivative evidence in such criminal proceedings. They assert as well that the s. 17 investigative process constitutes a state‑imposed trauma which adversely affects their liberty and security of the person.
The respondents for their part contend that the right to liberty and security of the person is not absolute and should be confined to the maintenance of the physical integrity of the person. They rely in part on the words of Dickson C.J. in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 785‑86:
Indeed, all regulatory offences impose some restriction on liberty broadly construed. But I think it will trivialize the Charter to sweep all those offences into s. 7 as violations of the right to life, liberty and security of the person even if they can be sustained under s. 1.
The respondents stress that s. 17 merely authorizes a fact‑finding procedure and does not create any liability or impose any punishment. Moreover, they deny that s. 17 compels the attendance of an individual since he can challenge the Order to Appear either by way of judicial review or when the Commission applies to a court pursuant to s. 17(3) to punish the individual for non‑compliance with the Order to Appear.
It is not necessary for me to attempt to determine the perimeters of "liberty" and "security of the person". Clearly, they must be subject to some limits; otherwise any tenuous restriction placed on an individual would constitute a violation of liberty and security of the person. There is, however, in my view a vast difference between a general regulatory scheme (such as the rules of the road for motorists) designed to give some order to human behaviour and a state‑imposed compulsion on an individual to appear at proceedings against his will and testify on pain of punishment if he refuses. The difference is even greater, in my view, where the compelled testimony given by the individual may be used to build a case against him in what is, in effect, a subsequent criminal prosecution. It is my opinion that this compulsion, linked as it is to the criminal process, touches upon the physical integrity of the individual as well as that individual's reasonable expectation of privacy. The fact that the s. 17 procedure is in itself "investigatory" as opposed to "prosecutorial" seems to me to be irrelevant when a criminal prosecution is a potential consequence of the s. 17 investigation. Nor do I think that the fact that the individual may challenge the proceedings by way of judicial review or under s. 17(3) means that his rights are not violated. Such considerations may be relevant in considering whether the principles of fundamental justice have been violated or whether the legislation is sustainable under s. 1 of the Charter but are not relevant in determining whether the right to liberty and security of the person has been violated. I would conclude therefore that s. 17 of the Act violates a person's right to liberty and security of the person within the meaning of s. 7 of the Charter .
(b) The Principles of Fundamental Justice
The appellants, in order to establish a violation of their s. 7 rights, must show that the infringement of their right to liberty and security of the person was not in accordance with the principles of fundamental justice. Lamer J., speaking for a majority of the Court in Re: B.C. Motor Vehicle Act, supra, set forth the guidelines for determining the content of the principles of fundamental justice. He stated at pp. 502‑3:
The appellants assert that s. 17 is contrary to two principles of fundamental justice, namely the right against self‑incrimination and the right not to be compelled to give evidence against oneself or the right to remain silent. These two rights are touched upon in other provisions of the Charter . Section 13 provides an individual with a limited protection against self‑incrimination. It reads:
Section 11(c) provides a limited right of non‑compellability:
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(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
The appellants are not in a position to take advantage of either s. 13 or s. 11(c). However, they claim that s. 7 protects similar rights in contexts other than those to which ss. 13 and 11(c) apply. The respondents resist this claim on the basis of this Court's decision in Curr, supra. In that case the accused challenged what was then s. 223(2) of the Criminal Code which provided that a person who without reasonable excuse fails to comply with a request to give a breath sample is guilty of an offence. The accused argued that the law was inconsistent with s. 2(d), (e) and (f) and s. 1(a) and (b) of the Canadian Bill of Rights. Of importance in this appeal are ss. 1(a) and 2(d) which provide:
(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;
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(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;
In declining to read a residual 2(d) right into s. 1(a) Laskin J. stated at pp. 913‑14:
The respondents urge a similar approach to s. 7. Support for their view is found in Re Transpacific Tours Ltd., supra, which dealt with this very issue. Lysyk J. quoted from Curr and stated at p. 213:
It was not material to Lysyk J.'s opinion that the Charter is a constitutional document and the Canadian Bill of Rights only a statute. He stated at p. 216:
He found support for the application of the expressio unius principle to the Charter . He noted, for example, that the principle was applied by Le Dain J. in R. v. Therens, [1985] 1 S.C.R. 613, in respect of s. 24 of the Charter and by the British Columbia Supreme Court in Haywood Securities Inc. v. Inter‑Tech Resource Group Inc. (1985), 62 B.C.L.R. 183, later aff'd by (1985), 24 D.L.R. (4th) 724 (B.C.C.A.) He stated his conclusions on this issue at p. 220:
In Haywood Securities, supra, the appellant was examined in aid of execution by the respondent. The appellant refused to answer certain questions on the ground that the answers might tend to incriminate it. A majority of the British Columbia Court of Appeal ruled that s. 7 of the Charter was not intended to contain a general right against self‑incrimination. Macfarlane J.A., speaking for the majority, stated at pp. 747‑48:
However, Macfarlane J.A. tempered the force of his comments at pp. 748‑49, stating:
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The majority in Haywood Securities, supra, was met with a powerful dissent by Lambert J.A. After considering the expressio unius principle of interpretation, Lambert J.A. stated at p. 732:
In finding that s. 7 of the Charter did protect rights residual to ss. 11(c) and 13, Lambert J.A. relied on R. L. Crain Inc. v. Couture (1983), 6 D.L.R. (4th) 478 (Sask. Q.B.) In that case Schiebel J. stated in part at p. 501:
I would respectfully conclude upon a review of the existing authorities that the approach advocated by the appellants and reflected in the reasoning of Lambert J.A. and Schiebel J. is sound. The principle of statutory construction, expressio unius, is ill‑suited to meet the needs of Charter interpretation. It is inconsistent with the purposive approach to Charter interpretation which has been endorsed by this Court and which focuses on the broad purposes for which the rights were designed and not on mechanical rules which have traditionally been employed in interpreting detailed provisions of ordinary statutes in order to discern legislative intent. I do not question Laskin J.'s approach to the interpretation of the Canadian Bill of Rights. The point, however, has repeatedly been made that interpretations appropriate to the Canadian Bill of Rights will not necessarily be appropriate to the Charter : see R. v. Therens, supra; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Whyte, [1988] 2 S.C.R. 3. It is true that in Therens Le Dain J. interpreted s. 24 of the Charter to allow for the exclusion of evidence only under s. 24(2). However, this was not the result of the arbitrary application of the principle of exclusio unius but of a careful review of the purpose of the two subsections of s. 24 .
In Re B.C. Motor Vehicle Act this Court held that the principles of fundamental justice are found in the basic tenets of our justice system. Sections 8 to 14 of the Charter are illustrative, but not exhaustive, of deprivations of life, liberty and security of the person which are not in accord with the principles of fundamental justice. Otherwise, s. 7 itself would have no role to play. I conclude therefore that the specific enumerations in ss. 11(c) and 13 do not prevent residual content being given to s. 7. It remains to be seen, however, to what extent the right against non‑compellability and the right against self‑incrimination are part of the principles of fundamental justice.
If the principles of fundamental justice are to be found in the basic tenets of our justice system as this Court has stated, reference must be made to the historical development of our justice system as well as to the experience of other jurisdictions which espouse values similar to our own. Our justice system has evolved in large measure from the English common law and it is there I must turn at first instance to examine the ambit of the right against compellability and the right against self‑incrimination.
(i) The English Position
The origins of the rights are examined in considerable detail from a historical perspective in Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), at pp. 284 ff. Essentially, the rights developed out of a revulsion against the practices of the courts of the Star Chamber and the High Commission in the seventeenth century: see also Professor E. Ratushny's Self‑Incrimination in the Canadian Criminal Process (1979). A person could be called before these courts without notice of the precise charge laid against him and examined under oath. The principal concern was not the fact that an accused was required to testify but rather the fact that the charges lacked particularity. This lack of particularity had at least two undesirable consequences for the accused. First, he was often ignorant as to what he was being charged with and therefore had difficulty tailoring his responses to a particular issue. And second, and closely related to the first, the courts often used the lack of particularity as justification for embarking on a fishing expedition in the hopes that somewhere along the way the accused would reveal the commission of some offence. Thus, the foundation of the rights against compellability and self‑incrimination lay in dissatisfaction with the method of presentment of the charge to the accused rather than in the fact that the accused had to testify. However, through the effluxion of time, the underlying rationale for the rights became blurred. Wigmore makes this point at pp. 289‑90 in the course of his discussion of Lilburn's trial, the most famous case in which the reason for the rights was canvassed:
With the passage of time and the enactment of legislation, the accused became competent witnesses for the defence but were not compellable by the Crown. This non‑compellability applied to the pre‑trial as well as the trial process. As Lord Parker C.J. stated in Rice v. Connolly, [1966] 2 Q.B. 414, at p. 419:
Also, the rule developed that "a man shall not be compelled to say anything which criminates himself". This rule was discussed by Stephen J. in Lamb v. Munster (1882), 10 Q.B.D. 110, at pp. 112‑13:
This remains the law of England to this day.
In Canada we developed a slightly different approach with the enactment in 1893 of what are now ss. 4(1) and 5 of the Canada Evidence Act , R.S.C., 1985, c. C‑5 (previously R.S.C. 1970, c. E-10). In their present form these sections read as follows:
The effect of s. 4(1) was to maintain the common law rule of non‑compellability at the investigatory stage, subject to modification by the terms of a particular statute, and to make the accused at his trial a competent witness for the defence but not a compellable witness for the Crown. The effect of s. 5 was to abolish the common law rule of allowing a witness to refuse to answer a question on the ground that it would tend to incriminate him and replace it with the rule that the witness must answer the question but the answer could not be used against him in a subsequent criminal case. This legislation reflects the state's interest in having all available information before the tribunal so that a proper determination in that case can be made. This state interest is achieved in derogation of the common law rule protecting a witness from answering a question on the basis of the right against self‑incrimination.
I pause at this point to consider the development of the law in two other jurisdictions which share many of the same values as we do, the United States and Australia.
(iii) The Position in the United States
The Fifth Amendment to the United States Constitution provides in part:
Once a person claims the benefit of this provision, he need not answer the question put to him.
The underlying rationale behind the Fifth Amendment reflects the draftsmen's awareness of the situation in England. Frankfurter J. made this point in Ullmann v. United States, 350 U.S. 422 (1956), at pp. 426 and 428:
. . .
However, the United States Congress recognized that there were certain cases in which it was crucial that information be obtained from a witness notwithstanding that this ran afoul of the Fifth Amendment. Consequently, particular pieces of legislation were passed which compelled a witness to answer all questions put to him but which protected or immunized the witness to varying degrees from the use of such elicited evidence. The reasoning was that if the immunity was co‑extensive with the Fifth Amendment right, then no breach of the Constitution would occur. The United States Supreme Court has ruled that "use immunity", an immunity provision comparable to that contained in s. 5 of the Canada Evidence Act , was not co‑extensive with the Fifth Amendment right and was unconstitutional: see Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1970). The reason for this was that governmental investigators could rely on the testimony extracted in order to obtain derivative evidence implicating the witness. However, the court has ruled that the legislature need not go so far as to grant the witness full "transactional immunity". In Kastigar v. United States, 406 U.S. 441 (1972), the court ruled that "use and derivative use" immunity was co‑extensive with the Fifth Amendment.
Australia inherited the common law of England as did Canada. However, Australia did not enact a general provision comparable to s. 5 of the Canada Evidence Act . Thus, the common law rights retain their vigour in Australia unless they are abrogated by specific legislation. The Australian High Court has recently had occasion to consider the scope of the common law rights in two judgments Pyneboard Proprietary Ltd. v. Trade Practices Commission (1983), 152 C.L.R. 328 and Sorby v. Commonwealth of Australia (1983), 152 C.L.R. 281. In the latter case, a majority of the court ruled, in line with recent American authority, that the right against self‑incrimination extends to protect a witness from the use of derivative evidence as well as the use of the testimony itself. At page 294, Gibbs C.J. stated:
The right against compellability and the right against self‑incrimination are thus fundamental precepts of democratic societies which respect individual rights and freedoms. These rights derived from the unacceptable practices of certain courts in England centuries ago wherein these courts did not specify with any particularity the charge the accused was facing, yet required him to answer questions under oath in response to it. Undoubtedly, prosecutors to‑day are required to specify with particularity the charge against the accused. Yet the rights have survived to a greater or lesser extent in several jurisdictions. Clearly, the underlying rationale for the rights has shifted. It seems opportune therefore to consider what the modern rationale is. It may assist us in determining the ambit of the principles of fundamental justice.
Wigmore, op. cit., lists twelve possible justifications for the continued existence of the rights which he considers to be one broad right (at pp. 310‑18):
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Wigmore favoured the last two of these policy justifications, stating at p. 318:
This Court had an opportunity to consider the rationale underlying ss. 11(c) and 13 in Dubois v. The Queen, [1985] 2 S.C.R. 350. In that case the issue was whether the Crown could tender statements made by the accused at his first trial in a subsequent retrial. Lamer J., for the majority, felt that ss. 11(c) and 13 were integrally linked with s. 11(d), which provides the right of a person charged with an offence to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. Lamer J. stated at pp. 357‑58:
The "right to be presumed innocent". . . is , in popular terms, a way of expressing the fact that the Crown has the ultimate burden of establishing guilt; if there is any reasonable doubt at the conclusion of the case on any element of the offence charged, an accused person must be acquitted. In a more refined sense, the presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit (after the Crown's evidence is in and as well any evidence tendered on behalf of the accused) of any reasonable doubt: see Coffin v. U.S. (1895), 156 U.S. 432 at 452.
In many ways, it is the principle of a "case to meet" which is the real underlying protection which the "non‑compellability" rule seeks to promote. The important protection is not that the accused need not testify, but that the Crown must prove its case before there can be any expectation that he will respond, whether by testifying himself, or by calling other evidence. However, even where a "case to meet" has been presented, the burden of proof remains upon the Crown to the end.
. . .
Having reviewed the historical origins of the rights against compellability and self‑incrimination and the policy justifications advanced in favour of their retention in more modern times, I conclude that their preservation is prompted by a concern that the privacy and personal autonomy and dignity of the individual be respected by the state. The state must have some justification for interfering with the individual and cannot rely on the individual to produce the justification out of his own mouth. Were it otherwise, our justice system would be on a slippery slope towards the creation of a police state. Thus, once a charge has been laid, the privacy and autonomy of the accused is protected by s. 11(c) of the Charter which, in conjunction with s. 11(d) of the Charter , requires the Crown to produce a case for the accused to meet.
At the same time, the importance of getting at the truth in any proceedings, criminal or otherwise, must be recognized. Otherwise our justice system might grind to a halt through important evidence not being brought forward. This goal, however, must remain subservient to the protection of the fundamental rights of the accused. It is for this reason that, while s. 11 does not speak to the non‑compellability of all individuals, s. 13 protects individuals compelled to testify in proceedings which have a legitimate adjudicative purpose from the use of their testimony in other proceedings in which they are the accused.
The question then arises whether ss. 11(c) and 13 adequately reflect the basic tenets of our justice system. Do they afford the level of protection the principles of fundamental justice require? If they are adequate for this purpose, then there is no room for any residual protection under s. 7. If they are not adequate, what is the scope of any residual protection under s. 7?
The first question then is are ss. 11(c) and 13 adequate to ensure fundamental justice within the meaning of s. 7? I note first that s. 11(c) only protects against testimonial compulsion an accused "charged with an offence". It affords no protection against such compulsion to a suspect being interrogated prior to any charge being laid. This raises the question whether the state should be allowed to do indirectly what it cannot do directly. Can a suspect be compelled to testify at a pre‑trial proceeding which may lead to his being charged with a criminal offence on the basis of such compelled testimony when he cannot be compelled to give that testimony at the trial itself? If he is not protected against this by s. 11(c) because he was not a person charged with the offence at the time he made the incriminating statements, is this covered by a residual protection in s. 7?
It is argued that the answer is no because this situation is covered by s. 13. Section 13 precludes incriminating testimony given by a witness "in any proceedings" from being used "in any other proceedings" subject to the prescribed exceptions. Accordingly, if the suspect makes an incriminating statement in the context of a "proceeding" protection against self‑incrimination is provided in s. 13 and there is no need to import such protection into s. 7. It is suggested that the word "proceedings" should be given a large and liberal interpretation so as to cover any kind of proceeding, whether adjudicative or investigative. This would be consistent with the principle of Charter interpretation that we construe rights guaranteed in the Charter so as to provide maximum protection to the citizen. Thus, s. 13 protects the witness who incriminates himself in earlier proceedings. The appellants would, therefore, have the benefit of the s. 13 protection in testifying before the inquiry being conducted by the Director.
I note in passing, although not germane to this case, that s. 13 would not appear to cover incriminating statements made to police as part of an ordinary police investigation. There must be a "proceeding" for s. 13 to apply. Section 13 would not preclude the police from building up a case against a suspect from incriminating statements made by him in the course of an ordinary police investigation. If this were to be protected against, it would presumably have to be done through s. 7 since it is not covered by either s. 11(c) or s. 13. This is not, however, our case. We are dealing with testimony given in the context of a proceeding.
Another suggested inadequacy in the protection afforded by ss. 11(c) and 13 is that neither protects against the use of derivative evidence. They protect only against testimonial compulsion and the use of the incriminating statements. Is the use of derivative evidence contrary to the principles of fundamental justice in s. 7? I think it is. I would respectfully adopt the reasoning of the United States Supreme Court in Kastigar, supra. As the court pointed out in that case, the privilege against self‑incrimination, if it is to be meaningful, requires that neither the testimony nor the evidence derived from the testimony be used against the witness. I quote from p. 453 of the majority judgment:
It seems to me that in order to prevent a suspect from being conscripted against himself in a criminal or quasi‑criminal proceeding (which would clearly include a charge of predatory pricing under the Combines Investigation Act), the suspect must be protected against the use of evidence derived from testimony given at the earlier investigatory proceeding as well as against the use of the testimony itself. Otherwise the suspect is convicted, metaphorically if not literally, out of his own mouth. He has, as the U.S. Supreme Court put it, through the use of the derivative evidence been "forced to give testimony leading to the infliction of `penalties affixed to . . . criminal acts'".
My colleague, La Forest J., advocates a flexible approach to the admission of derivative evidence. He sees a solution to the problem in s. 24(2) of the Charter and the principles enunciated thereunder by this Court in R. v. Collins, [1987] 1 S.C.R. 265. He points out that the trial judge has a discretion under s. 24(2) whether or not to admit "real" evidence (which for the purpose of his analogy my colleague equates to derivative evidence) if to do so would be unfair to the accused. With respect, I see no analogy between the two situations. The judge's discretion under s. 24(2) is no guarantee of protection against the use of derivative evidence obtained as a result of a witness's compelled testimony. It is merely a discretion and one which is required to be exercised on a very specific basis, namely whether or not the admission of the evidence would bring the administration of justice into public disrepute. The public repute of justice is not the relevant consideration in determining whether derivative evidence should be excluded on the ground that it was obtained as a direct result of testimonial compulsion in violation of the principles of fundamental justice. That exclusion must be a matter of principle and of right, not of discretion. It should be noted also that the derivative evidence we are concerned with is precisely that. It is derivative. There is a direct causal relationship between the compelled testimony and the derivative evidence. Unlike the situation under s. 24(2) where this Court has held that causality is not a pre‑requisite to admissibility (see R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Brydges, [1990] 1 S.C.R. 190, causality is the sine qua non of derivative evidence. This is why, as pointed out in Kastigar, supra, the privilege against self‑incrimination, if it is to be meaningful, requires that neither the testimony nor the evidence derived from it can be used against the witness.
I conclude, therefore, that s. 7 protects the witness in a subsequent criminal proceeding against the use of evidence derived from testimony given by him in an earlier proceeding, which protection is not available under either ss. 11(c) or 13. Where a person's right to life, liberty and security of the person is either violated or threatened, the principles of fundamental justice require that such evidence not be used in order to conscript the person against himself.
It was vigorously argued by the respondents in this Court that to find such protection in s. 7 would result in a marked extension of the law as it has existed in Canada for nearly a century and that such a change could not therefore be mandated by a principle of fundamental justice or the basic tenets of our justice system. The respondents assert that the law in this area is properly reflected in ss. 4 and 5 of the Canada Evidence Act . I do not find this argument persuasive. As the appellants point out, legislation must conform to the Charter , not the reverse, regardless of how longstanding the legislation is. Section 52 of the Constitution Act, 1982 makes this clear:
This Court has struck down several pieces of legislation despite their longevity: see, for example, R. v. Big M Drug Mart Ltd., supra, in which the Lord's Day Act fell, R. v. Morgentaler, [1988] 1 S.C.R. 30, in which s. 251 of the Criminal Code was struck down and Hunter v. Southam Inc., supra, in which search and seizure provisions in existence since 1923 were held to be unreasonable in 1984. I do not doubt, of course, that the longevity of a statute is a factor to be taken into account when identifying the principles of fundamental justice. However, it is far from being the determining factor. My research into the development of the common law in this area indicates that broader Charter protection is warranted at the investigatory stage than that provided by the Canada Evidence Act .
The respondents also submitted, and this position was supported by some of the intervening Attorneys General, that any right of non‑compellability or right against self‑incrimination would arise only at a subsequent criminal trial (if one were instituted) and not at the pre‑trial investigatory stage. They argued that the appropriate time for the witness to claim protection against self‑incrimination is when the evidence objected to is later sought to be introduced in a criminal proceeding against the witness qua accused. Accordingly, they submitted, it is unnecessary to deal with the scope of the protection at this time. With respect, this completely overlooks the fact that it is the validity of the empowering legislation which is being challenged under s. 7 of the Charter . The witness is surely entitled to know whether the legislation under which he is being compelled to testify is constitutionally valid or not.
If I am correct in the conclusions I have reached, does s. 17 of the Combines Investigation Act violate s. 7 of the Charter ? In my opinion it does to the extent it permits the Director to compel suspects to testify in an investigatory proceeding so as to build up a case against themselves through their own self‑incriminating testimony and evidence derived from such testimony. Section 17 expressly contemplates that such evidence may be forwarded by the Director to the Attorney General of Canada with a view to possible prosecution for a criminal offence. Although s. 20(2) of the Act protects a witness who testifies under s. 17 from use of the testimonial evidence in a subsequent prosecution if one takes place, it does not protect the witness against use of the derivative evidence. Accordingly, s. 17 violates the residual s. 7 right of an individual not to be compelled to testify in an investigatory proceeding with a view to possible subsequent prosecution absent legislative assurance that any derivative evidence obtained as a result of his testimony cannot be used against him in such prosecution.
Having found that s. 17 of the Act violates s. 7 of the Charter it remains to be seen whether it can be justified under s. 1. Section 1 of the Charter provides:
Dickson C.J. in R. v. Oakes, [1986] 1 S.C.R. 103, enunciated on behalf of the Court the tests which must be satisfied before legislation can be upheld under s. 1 of the Charter . He stated at pp. 138‑39:
The government's onus under Oakes is to justify the limit on the right of the citizen on a preponderance of probability. Dickson C.J. referred to this as "a very high degree of probability" commensurate with the occasion. I think that this comment is particularly apposite in the context of a s. 7 breach. It will be rare, in my view, that a legislative provision can violate a principle of fundamental justice or a basic tenet of our justice system and still be demonstrably justified in a free and democratic society.
Bearing this in mind, I turn my attention to the first step in the Oakes test, namely whether the government objective is of sufficient importance to override a constitutionally protected right. The part of the Combines Investigation Act in which s. 17 appears serves two legislative purposes. First, it provides for the effective investigation of suspected criminal and quasi‑criminal activity. Second, it makes it possible to monitor economic activity in Canada so as to ensure that the government's economic objectives are met. There can be little doubt that each of these legislative objectives are of sufficient importance to warrant infringement of individual rights and freedoms. Society has a very real interest both in controlling crime and in ensuring the stability of the marketplace. I would conclude therefore that the first step of the Oakes test is met in this case.
Next, government must show that the means employed to achieve the objective are rationally connected to it. I would accept that compelling individuals to appear and testify regarding their business activities is a rational way of monitoring compliance with the terms of the Act and the policies embodied in it.
The real hurdle for the respondents is establishing that the means employed impair the appellants' rights as little as possible. Section 17 compels individuals to come forward and testify under oath before the Restrictive Trade Practices Commission. Since section 17 is investigatory it clearly contemplates that incriminating questions can be asked of these individuals. Section 20(2) provides some measure of protection for these individuals since it precludes the admission of testimony of an individual in a subsequent prosecution. However, for the reasons developed earlier, I do not consider this protection adequate. Section 20(2) provides no greater protection than s. 5(2) of the Canada Evidence Act and I have already indicated that the s. 5(2) protection is not broad enough in this context to comport with the principles of fundamental justice. These principles require an individual to be protected not only against the admission of his previous testimony in subsequent criminal or quasi‑criminal proceedings but that the state be precluded from using in such proceedings evidence derived as a result of the previous testimony. Absent protection against the use of derivative evidence, the state is conscripting the individual against himself. As already mentioned, the United States Supreme Court considered this problem in the context of the Fifth Amendment in Kastigar, supra. The United States Constitution has no provision comparable to s. 1. As a consequence any limits on constitutional rights must be read into the rights themselves. The United States Supreme Court held that a statute which compels the testimony of an individual will only be valid if it provides protection against use of derivative evidence as well as against use of the testimony itself. The court discussed the issue at p. 453:
I would respectfully adopt this statement and apply it in this appeal. There is no evidence to suggest that the government's objective in this case would be frustrated if individuals compelled to testify were afforded derivative use protection. Certainly the monitoring of the Canadian economy would not be injuriously affected by such protection. Moreover, while there may be instances when the investigation of crime or the effective enforcement of legislation may be hampered if suspects are not conscripted against themselves, such a case has not been made out here. No evidence has been presented to the Court to show that the enforcement of the Combines Investigation Act will be drastically impaired if derivative use protection is given to persons testifying under s. 17.
I would add, moreover, that even if the only effective means of enforcing criminal or quasi‑criminal legislation was to conscript individuals to testify against themselves without any protection, the legislation may still not be valid. While it might pass the minimal impairment test, the effects of the measures adopted may be out of proportion to the objective sought to be achieved. However, having found that the legislation in this case fails to meet the minimal impairment test, it is unnecessary to decide whether the third aspect of the Oakes test is met.
I would conclude, therefore, that s. 17 of the Combines Investigation Act cannot be saved under s. 1 of the Charter and is therefore of no force or effect by virtue of s. 52 of the Constitution Act, 1982 .
The appellants submit also that ss. 17(1) and 17(4) of the Act violate s. 8 of the Charter to the extent that these provisions compel an individual to make production of books, papers, records and other documents before the Commission and the Director. The appellants contend that the impact of these provisions is not sufficiently assuaged by s. 17(3) to allow them to stand. For ease of reference, I reproduce the relevant subsections here:
Section 8 of the Charter provides:
In Hunter v. Southam Inc. this Court discussed the general nature of the s. 8 right. Dickson J. (as he then was) noted that s. 8, unlike its rough equivalent in the Fourth Amendment to the United States Constitution, is totally lacking in specificity and has no historical, political or philosophic context to assist in its interpretation (pp. 154‑55). American jurisprudence, while a guide, is not determinative of the way in which s. 8 and in particular the word "unreasonable" should be interpreted.
Dickson J. took a purposive approach in order to determine the interests the section was intended to protect. He concluded that the protection granted under s. 8 was broader than the mere protection of property; it extended also to the individual's reasonable expectation of privacy. He said at pp. 159‑60:
There is no doubt that an individual's expectation of privacy goes beyond a concern for the inviolability of his body and extends to his possessions including his books, records and other documents. Matters of the utmost confidence are often recorded in retrievable form, be they business strategies, trade secrets or personal reflections noted in a diary. An individual's interest in having these confidences respected can be significant and not something with which governmental agencies should lightly interfere.
(a) "Seizure" Under Section 8
The respondents assert that the appellants' expectation of privacy is unaffected by s. 17 since no‑one invades the appellants' offices in order to search for and take possession of the documents. Rather, the appellants are ordered to produce the documents and, if they wish to challenge the order to produce, they can do so prior to its return date or at the hearing contemplated in s. 17(3). It is the respondents' submission that the provisions of s. 17(1) are the equivalent of a subpoena duces tecum and that a subpoena duces tecum is not a seizure. The respondents rely on the majority decision of the Federal Court of Appeal in Ziegler v. Hunter, supra, in which the very question under review at the present time was considered. In that case, Hugessen and Le Dain JJ. wrote separate judgments, both finding that s. 17 of the Act did not violate s. 8 of the Charter . Hugessen J. stated at pp. 634‑35:
See also the judgment of Le Dain J. at pp. 618‑19.
I must respectfully disagree. I think that Hugessen J.'s approach ignores the fact that s. 8 protects an individual from unreasonable search or seizure. The use of the disjunctive "or" reflects, in my opinion, the draftsman's recognition that a search can take place without a seizure and conversely a seizure can take place without a search. The quotation from the judgment of Hugessen J. suggests that search and seizure must always be part of a single transaction. The clear language of s. 8 calls for a different conclusion. I would agree with the approach taken by the trial judge in this case and by Marceau J., dissenting on this issue in Ziegler, supra, and conclude that a seizure within the meaning of s. 8 of the Charter is "the taking hold by a public authority of a thing belonging to a person against that person's will" (p. 630).
I think that this interpretation is consistent with the approach taken by this Court in Hunter v. Southam Inc. When an individual considers something to be "private" he considers it to be for his eyes only. He seeks to avoid disclosure. The consequences of disclosure are just as acute when the individual is compelled to reveal the information as they are when others seize it. Indeed, the consequences may be harsher when the individual is compelled to produce the documentary evidence since he may well produce evidence beyond that which the governmental authorities had reasonable grounds to believe existed. I believe, therefore, that on a purposive interpretation of the word "seizure", compulsory production constitutes a seizure within the meaning of s. 8.
I would, however, add one caveat to the above conclusion. As was discussed earlier in this judgment, the investigatory provisions of the Combines Investigation Act are criminal or quasi‑criminal in nature. It was to this same part of the Combines Investigation Act that Dickson J. addressed himself in Hunter. My comments should not necessarily be taken, therefore, to have application to matters outside the sphere of criminal or quasi‑criminal law.
The respondents submit that there is no taking hold by a public authority and no seizure in this case because it is open to the appellants to challenge the validity of the order prior to the production of the documents. They point out also that no documents have so far been produced or taken hold of by the Commission. I think this is an overly narrow interpretation of the word "seizure". In Hunter, Dickson J. stressed the importance of proper prior authorization before a search is conducted. He stated at p. 160:
In my opinion, Dickson J.'s remarks with regard to searches are equally applicable to seizures. It makes no sense to say that s. 8 is only engaged once the private information becomes public. If that were the case, the protections afforded by s. 8 would be completely illusory. The fact that an individual can challenge the validity of the order before producing the documents goes, in my opinion, not to the question whether a seizure has occurred but to the question whether the seizure is a reasonable one.
I would conclude therefore that ss. 17(1) and 17(4) of the Combines Investigation Act contemplate a seizure within the meaning of s. 8. The question is whether the seizure is a reasonable one.
(b) "Reasonableness" Under Section 8
Not all seizures violate s. 8 of the Charter ; only unreasonable ones. Put another way, an individual is accorded only a reasonable expectation of privacy. At some point the individual's interest in privacy must give way to the broader state interest in having the information or document disclosed. However, the state interest only becomes paramount when care is taken to infringe the privacy interest of the individual as little as possible. It is because of this need for delicate balancing that Dickson J. in Hunter identified several criteria which must be met if a search in a criminal investigation is to meet the test of reasonableness. I think that these criteria were accurately summarized by J. Holland J. at trial as set out earlier in these reasons. I would agree, however, that these criteria are not hard and fast rules which must be adhered to in all cases under all forms of legislation. What may be reasonable in the regulatory or civil context may not be reasonable in a criminal or quasi‑criminal context. What is important is not so much that the strict criteria be mechanically applied in every case but that the legislation respond in a meaningful way to the concerns identified by Dickson J. in Hunter. This having been said, however, it would be my view that the more akin to traditional criminal law the legislation is, the less likely it is that departures from the Hunter criteria will be countenanced. This seems to have been what Dickson C.J. had in mind when he said in R. v. Simmons, [1988] 2 S.C.R. 495, at p. 527, that departures from the Hunter criteria will be exceedingly rare. It is with this in mind that I consider the scheme envisaged by s. 17 of the Act.
On the question of reasonableness the respondents again stress that the legislation does not authorize an intrusive search and seizure by the authorities but rather contemplates the production of documents by the individual himself. The respondents urge that this is comparable to an administrative subpoena duces tecum and suggest to this Court that the criteria in Hunter need not be applied to such a mechanism. They suggest that this Court ought to follow the approach the United States Supreme Court has taken with regard to subpoena duces tecum. That approach was set forth in Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946). Under review in that case was a provision in The Fair Labor Standards Act which allowed for judicial enforcement of subpoena duces tecum issued by the Administrator in the course of investigations conducted pursuant to the Act. The court discussed what must be required in order that legislation authorizing that type of procedure be valid. Quoting from pp. 208‑9:
I do not believe that the above approach is appropriate to the issue before us in the present appeal for two reasons. First, as I pointed out above, s. 8 of the Charter is a unique provision, worded quite differently from the Fourth Amendment and does not share the same historical, political and philosophic underpinnings. Secondly, the Walling case dealt with a regulatory and not a criminal investigation. Section 17 of the Combines Investigation Act contemplates an investigation one of the purposes of which is to collect evidence with a view to the laying of a "criminal" charge. Section 17 is contained in the same part of the Act as s. 10 , the section in relation to which the criteria in Hunter were imposed. In my view, it is important to look past the "form" of the information gathering, i.e. by subpoena duces tecum, and look at the effect the information gathering has on the individual, i.e. the compulsory production of evidence which can be used in a criminal prosecution.
My point can be made by way of an example. The scheme of the Combines Investigation Act could well be imposed in the Criminal Code and indeed originally was. The legislation would thus allow police investigators to compel suspects to produce documents and other physical evidence in connection with a particular investigation. Without question this would assist the police in pursuing a state purpose. However, it would be anathema to our notions of privacy, respect for the individual and the presumption of innocence. This is why the Criminal Code contemplates instead the issuance of a warrant in compliance with the criteria in Hunter.
For the above reasons I would conclude that the criteria set forth in Hunter must be substantially if not completely met by s. 17 of the Combines Investigation Act. The question then is whether s. 17 does meet these criteria or at least responds to the policy concerns underlying these criteria in a meaningful way.
The criteria, once again, are as follows:
(a)a system of prior authorization, by an entirely neutral and impartial arbiter who is capable of acting judicially in balancing the interests of the State against those of the individual;
(b)a requirement that the impartial arbiter must satisfy himself that the person seeking the authorization has reasonable grounds, established under oath, to believe that an offence has been committed;
(c)a requirement that the impartial arbiter must satisfy himself that the person seeking the authorization has reasonable grounds to believe that something which will afford evidence of the particular offence under investigation will be recovered; and
(d)a requirement that the only documents which are authorized to be seized are those which are strictly relevant to the offence under investigation.
The respondents submit that these requirements are met in substance because it is open to the individual, prior to giving up possession of the documents, to challenge the s. 17 order before a judge either by way of an application for review or by way of s. 17(3) should the Commission try to enforce production. In my opinion the availability of this limited form of review in no way meets the concerns underlying the Hunter criteria. First, not all individuals will have the legal acumen to realize that this form of review is available. Some individuals may, when met with a state demand, immediately comply with it out of a sense of obligation or a fear of the repercussions for failing to do so. The right of review would do nothing to assist these people whereas a system requiring prior authorization undoubtedly would. Second, since under the legislation the Director need not have reasonable and probable grounds to believe that an offence has been committed when he applies to the Commission for an order, the second criterion is entirely ignored under the legislation. If the Commission need not be satisfied of the Director's belief, it is difficult to see what role is left for a court reviewing the Commission's decision.
These criticisms also hold true with regard to the third and fourth Hunter criteria. The legislation does not impose a requirement that the Commission satisfy itself that the Director has reasonable and probable grounds to believe that evidence of a particular offence will be uncovered through the production. Moreover, there is no requirement in the legislation that only documents strictly relevant to the investigation of a specific offence be produced.
The Commission's jurisdiction is cast in such broad terms that it is hard to envisage a situation in which a reviewing court could find that the Commission committed a jurisdictional error in issuing an order. It has been suggested that a reviewing court might read the criteria set out in Hunter into the statute and exercise its reviewing function on that basis. This argument must be rejected. It is not for the courts, in effect, to amend legislation to make it constitutional. As Dickson J. stated in Hunter, at p. 169:
I would conclude therefore that ss. 17(1) and 17(4) of the Act violate s. 8 of the Charter since they authorize a seizure which does not meet the test of reasonableness set out in Hunter.
I need not repeat the interpretive principles applicable to s. 1 of the Charter . These have already been set forth earlier in my reasons.
I have already concluded that the governmental objectives intended to be achieved in this part of the Combines Investigation Act are of sufficient importance to override constitutionally protected rights and freedoms. I have also concluded that the means employed, the compulsory production of documents, are rationally connected to the broad purposes of the Act. The only outstanding question then is whether or not the means employed impair the individual's s. 8 right as little as possible.
I must say that I have great difficulty in understanding how any legislation authorizing an "unreasonable search or seizure" can be a "reasonable limit . . . demonstrably justified in a free and democratic society". However, it is clear that in this case the criteria set out in Hunter are not met. In the absence of any evidence to show that the objectives of the Act would be frustrated by adherence to the Hunter criteria, it is impossible to conclude that the s. 8 right of the appellants was minimally impaired.
I would conclude therefore that ss. 17(1) and 17(4) of the Combines Investigation Act, to the extent that they compel the production of books, papers, records or other documents, violate s. 8 of the Charter and are not saved by s. 1. To that extent then these provisions are of no force or effect by virtue of s. 52 of the Constitution Act, 1982 .
5. Conclusions
Section 17 of the Combines Investigation Act violates s. 7 of the Charter to the extent it compels suspects in what is in effect a criminal investigation to testify absent protection against the use of evidence derived as a result of that testimony in a criminal prosecution. The provision is not saved under s. 1 of the Charter .
Sections 17(1) and 17(4) of the Combines Investigation Act violate s. 8 of the Charter to the extent they compel production of documents in relation to a criminal or quasi‑criminal matter without complying with the safeguards enunciated in Hunter. These provisions are also not saved under s. 1 of the Charter .
I would allow the appeal and declare s. 17 of the Combines Investigation Act to be inconsistent with ss. 7 and 8 of the Charter and of no force or effect under s. 52(1) to the extent of the inconsistency. I would declare the Orders to Appear made pursuant to the section to be likewise of no force or effect. I would award the appellants their costs both here and in the Court of Appeal and I would answer the constitutional question in the affirmative.
//La Forest J.//
The following are the reasons delivered by
La Forest J. ‑‑ This appeal raises the issue whether s. 17 of the Combines Investigation Act, R.S.C. 1970, c. C‑23, which permits the examination under oath of witnesses and the production of business records in the course of carrying on an investigation under the Act violates s. 7 or s. 8 of the Canadian Charter of Rights and Freedoms . Section 7, of course, guarantees everyone the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 8 accords everyone the right to be secure against unreasonable search or seizure.
I have had the advantage of reading the reasons of my colleagues, Lamer, Wilson, L'Heureux‑Dubé and Sopinka JJ. It says something about the complexities of the issues that I have also felt constrained to write.
Facts
The facts and judicial history of this appeal are fully set forth in the reasons of my colleague Wilson J., and it is sufficient for me to refer only to such of these matters as are essential to an understanding of what follows.
The corporate appellant, Thomson Newspapers Limited, and several of its officers, the individual appellants, were served with orders, pursuant to s. 17 of the Combines Investigation Act, to appear to be examined under oath and to produce documents described in the orders in connection with an inquiry to determine whether there was evidence that the corporation or its subsidiaries had committed the offence of predatory pricing contrary to s. 34(1)(c) of the Act.
The appellants then sought a declaration before J. Holland J. of the Ontario High Court that s. 17 and the orders to appear violated ss. 7 and 8 of the Charter . For reasons set forth in Wilson J.'s reasons, J. Holland J. held that in so far as s. 17 authorized the compulsory production of documents, it was in violation of s. 8 of the Charter , but that it did not violate s. 7: (1986), 54 O.R. (2d) 143. However, the Ontario Court of Appeal, for reasons also set forth in my colleague's reasons, held that s. 17 violated neither of these provisions: (1986), 57 O.R. (2d) 257.
Leave to appeal to this Court was sought and granted, [1987] 1 S.C.R. xiv, and the following constitutional question was set:
1.Is section 17 of the Combines Investigation Act, R.S.C. 1970, c. C‑23, inconsistent with the provisions of ss. 7 and 8 of the Canadian Charter of Rights and Freedoms , and therefore of no force or effect?
The impugned provision reads as follows:
It should be noted that s. 20 of the Act provides for a number of safeguards for witnesses and persons being investigated. Of particular relevance is s. 20(2) dealing with incriminating evidence, which in Wilson J.'s view affords insufficient protection to witnesses to permit s. 17 to withstand Charter scrutiny. That provision reads as follows:
I shall deal first with s. 8 of the Charter . I agree with Wilson J. that that provision grants the right to be secure not only against searches, but against seizures as well. I so stated in R. v. Dyment, [1988] 2 S.C.R. 417, at p. 431, where I went on to add that the essence of a seizure was the taking of a thing from a person by a public official without that person's consent. I see little difference between taking a thing and forcing a person to give it up. I thus also agree with Wilson J. that an order to produce documents under s. 17 of the Act constitutes a seizure within the meaning of s. 8 of the Charter . The real question under s. 8, therefore, is whether a seizure made under s. 17 can be considered a reasonable seizure.
Reasonableness and the Nature of the Legislation
The difficulty of this question is brought sharply into focus by the opposing reasons of Wilson and L'Heureux‑Dubé JJ. Underlying their different approaches to the constitutionality of s. 17 is a disagreement as to the juristic character of the Act. Whereas Wilson J. views it essentially as criminal law, L'Heureux‑Dubé J. views it as regulatory, and hence as part of our administrative law. The resolution of this issue is crucial to the disposition of this appeal. Since the adoption of the Charter , Canadian courts have on numerous occasions taken the view that the standard of reasonableness which prevails in the case of a search or seizure made in the course of enforcement of the criminal law will not usually be appropriate to a determination of reasonableness in the administrative or regulatory context; see Re Alberta Human Rights Commission and Alberta Blue Cross Plan (1983), 1 D.L.R. (4th) 301 (Alta. C.A.), at p. 307; R. v. Rao (1984), 46 O.R. (2d) 80 (C.A.), at p. 96; Re Belgoma Transportation Ltd. and Director of Employment Standards (1985), 51 O.R. (2d) 509 (C.A.), at p. 512; R. v. Quesnel (1985), 12 O.A.C. 165, at p. 169; Bertram S. Miller Ltd. v. R., [1986] 3 F.C. 291 (C.A.), at pp. 319, 324 and 341‑43; R. v. Bichel, [1986] 5 W.W.R. 261 (B.C.C.A.), at pp. 271‑73. The same approach underlies the decision of this Court in R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 000, released concurrently, in which an order to produce documents issued under s. 231(3) of the Income Tax Act is viewed as administrative and held to be not unreasonable under s. 8 of the Charter .
The application of a less strenuous and more flexible standard of reasonableness in the case of administrative or regulatory searches and seizures is fully consistent with a purposive approach to the elaboration of s. 8. As Dickson J. made clear in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, the purpose of s. 8 is the protection of the citizen's reasonable expectation of privacy (p. 159). But the degree of privacy the citizen can reasonably expect may vary significantly depending upon the activity that brings him or her into contact with the state. In a modern industrial society, it is generally accepted that many activities in which individuals can engage must nevertheless to a greater or lesser extent be regulated by the state to ensure that the individual's pursuit of his or her self‑interest is compatible with the community's interest in the realization of collective goals and aspirations. In many cases, this regulation must necessarily involve the inspection of private premises or documents by agents of the state. The restaurateur's compliance with public health regulations, the employer's compliance with employment standards and safety legislation, and the developer's or homeowner's compliance with building codes or zoning regulations, can only be tested by inspection, and perhaps unannounced inspection, of their premises. Similarly, compliance with minimum wage, employment equity and human rights legislation can often only be assessed by inspection of the employer's files and records.
It follows that there can only be a relatively low expectation of privacy in respect of premises or documents that are used or produced in the course of activities which, though lawful, are subject to state regulation as a matter of course. In a society in which the need for effective regulation of certain spheres of private activity is recognized and acted upon, state inspection of premises and documents is a routine and expected feature of participation in such activity. As A. D. Reid and A. H. Young point out in their article "Administrative Search and Seizure Under the Charter " (1985), 10 Queen's L.J. 392, at p. 399, there is a "large circle of social and business activity in which there is a very low expectation of privacy", and in which the "issue is not whether, but rather when, how much, and under what conditions information must be disclosed to satisfy the state's legitimate requirements" (emphasis in original).
The situation is, of course, quite different when the state seeks information, not in the course of regulating a lawful social or business activity, but in the course of investigating a criminal offence. For reasons that go to the very core of our legal tradition, it is generally accepted that the citizen has a very high expectation of privacy in respect of such investigations. The suspicion cast on persons who are made the subject of a criminal investigation can seriously, and perhaps permanently, lower their standing in the community. This alone would entitle the citizen to expect that his or her privacy would be invaded only when the state has shown that it has serious grounds to suspect guilt. This expectation is strengthened by virtue of the central position of the presumption of innocence in our criminal law. The stigma inherent in a criminal investigation requires that those who are innocent of wrongdoing be protected against overzealous or reckless use of the powers of search and seizure by those responsible for the enforcement of the criminal law. The requirement of a warrant, based on a showing of reasonable and probable grounds to believe that an offence has been committed and evidence relevant to its investigation will be obtained, is designed to provide this protection.
The Juristic Character of Combines Legislation
Applying the above distinction to this appeal, I think the initial question can be stated in the following form: what degree of privacy can those subject to investigation under the Combines Investigation Act reasonably expect in respect of the activities and matters with which such investigation may be concerned? In approaching this question, I would first of all point out that I do not regard the fact that the Act and its predecessors were characterized as criminal law for the purposes of division‑of‑powers analysis as at all determinative. That characterization depended largely on the restrictive reading given by the Privy Council to the trade and commerce power, a reading which has since been largely modified; see General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, at pp. 658‑63. Quite apart from this, even if the Act may legitimately be looked upon as falling under the criminal law power for the purposes of s. 91 of the Constitution Act, 1867 , this would not preclude alternative characterizations that would place the Act under another head of federal legislative power more germane to the present issue; see Attorney General of Canada v. Canadian National Transportation Ltd., [1983] 2 S.C.R. 206; R. v. Wetmore, [1983] 2 S.C.R. 284.
Nor do I regard it as determinative that the Act defines offences and provides for the imprisonment of those who commit them. While I recognize that these features give the Act something of the flavour of criminal law, I do not believe that the fact that an Act provides for sanctions usually associated with the criminal law necessarily means that those subject to its operation have the same expectations of privacy as persons suspected of committing what are by their very nature criminal offences. While I will have more to say about this matter later, it is for the present sufficient to observe that there are pragmatic reasons for the inclusion of imprisonment among the sanctions provided for in the Act which do not alter its essential character as regulatory legislation and which are in fact indicative of the activities and matters it is designed to regulate.
What, in my view, is determinative is the nature of the conduct addressed by the legislation and the purposes for which it is designed to regulate that conduct. There can be little doubt that the conduct prohibited by the Act is far removed from what is the typical concern of the criminal law system, i.e., the "underlining [of] crucial social values" (emphasis added) where "[t]he sort of things prohibited ‑- acts of violence, dishonesty and so on -‑ are acts violating common sense standards of humanity" which we regard as meriting disapprobation and punishment; see Law Reform Commission of Canada, Our Criminal Law (1976), at pp. 3, 5 and 7; see also R. v. Chiasson (1982), 135 D.L.R. (3d) 499 (N.B.C.A.), at p. 503; reasons adopted [1984] 1 S.C.R. 266; R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 70. At bottom, the Act is really aimed at the regulation of the economy and business, with a view to the preservation of the competitive conditions which are crucial to the operation of a free market economy. This goal has obvious implications for Canada's material prosperity. It also has broad political overtones in that it is aimed at preventing concentration of power, of critical importance in the present case as it involves control of the press. It must be remembered that private organizations can be just as oppressive as the state when they gain such a dominant position within their sphere of operations that they can effectively force their will upon others.
The conduct regulated or prohibited by the Act is not conduct which is by its very nature morally or socially reprehensible. It is instead conduct we wish to discourage because of our desire to maintain an economic system which is at once productive and consistent with our values of individual liberty. It is, in short, not conduct which would be generally regarded as by its very nature criminal and worthy of criminal sanction. It is conduct which is only criminal in the sense that it is in fact prohibited by law. One's view of whether it should be so proscribed is likely to be functional or utilitarian, in the sense that it will be based on an assessment of the desirability of the economic goals to which combines legislation is directed or its potential effectiveness in achieving those goals. It is conduct which is made criminal for strictly instrumental reasons.
The Act is thus not concerned with "real crimes" but with what has been called "regulatory" or "public welfare" offences. The distinction is clearly made by the Law Reform Commission of Canada in Criminal Responsibility for Group Action (Working Paper 16, 1976), at pp. 11‑12. After having defined real crimes as those concerned with the reinforcement of society's fundamental values, the Commission says, at p. 12, that a regulatory offence
The regulatory nature of the offences defined in the Act is made clear by even a cursory consideration of the secondary literature on Canadian competition law. That literature concerns itself with the question of whether Canada should have anti‑combines legislation as much as with the sufficiency and details of the legislation. The potential effectiveness of combines legislation in achieving the goals I have referred to, and the possible ill‑effects the pursuit of these goals may have on our international competitiveness, have been much debated. It is difficult to imagine a similarly pragmatic and instrumental debate in respect of the offences, such as murder, assault, or theft, which we would immediately and unhesitatingly regard as concerned with criminal behaviour and deserving of punishment.
In the judicial sphere, the regulatory character of the Act has recently been recognized by this Court. In General Motors of Canada Ltd. v. City National Leasing, supra, the Court considered whether s. 31.1 of the Act, which creates a private right of action in respect of loss suffered as a result of conduct contrary to the Act or an order made under it by a court or the Restrictive Trade Practices Commission, was ultra vires Parliament. After reviewing and describing the overall structure of the Act, Dickson C.J., speaking for the Court, summarized his findings, at p. 676, as follows:
This assessment of the Act is consistent with the above discussion. First and most obviously, it refers to the Act as a "complex scheme of economic regulation" (emphasis added) which is "designed to discourage forms of commercial behaviour viewed as detrimental to Canada and the Canadian economy". In other words, the Act does not seek to prevent the proscribed conduct as an end in itself, but seeks instead to prevent the results to which it is believed the behaviour will lead. More subtly, in describing the criminal and administrative remedies which the Act provides for as "the establishment of a remedial mechanism", Dickson C.J. suggests that the use of criminal sanctions in this area is pragmatic or functional in the sense that Parliament has made the determination that such sanctions are necessary to induce compliance with the Act.
This is so, not only of the fines that may be imposed under the Act, but of the sanction of imprisonment that may be imposed in respect of a number of provisions under the Act. For example, a prison sentence of up to five years, with or without an accompanying fine, can be imposed on any individual found guilty of the following offences: conspiracy in respect to various forms of anti‑competitive behaviour (s. 32); bid‑rigging (s. 32.2); false advertising (s. 36); the making of unsubstantiated representations as to tests and testimonials (s. 36.1); pyramid selling (s. 36.3); referral selling (s. 36.4); offences in relation to the holding of promotional contests (s. 37.2); price maintenance (s. 38); improper refusal to supply (s. 38). In addition, a person can be sentenced to two years in prison under s. 33, which refers to monopolies and mergers, as well as under s. 34, which defines various illegal trade practices. A two‑year sentence can also be imposed under any of the sections dealing with false advertising, representations as to tests or testimonials, or pyramid and referral selling, provided that they are prosecuted by way of summary proceeding. Again, such a sentence may be accompanied by a fine. Finally, there are several sections which provide for the penalty of a one‑year term in prison, such as s. 37.1 (selling above advertised price).
I should perhaps elaborate on the underlying reasons for these sanctions. In terms of enforcement mechanisms, combines legislation cannot rely on the type of periodic on‑site inspection which is characteristic of many other types of regulatory legislation. This is because it regulates economic activity generally, whereas most other types of regulatory legislation are designed to deal only with certain trades or businesses. To undertake the periodic visitation of all or even most businesses operating within Canada would, from a financial and administrative standpoint, be a massive and perhaps impossible task. Even if it could be financed and effectively managed, it would necessarily involve the regular disruption of business activity, which could in turn decrease overall economic efficiency.
For this reason, as both Canadian and American writers have maintained, the effective implementation of anti‑combines or anti‑trust legislation depends on the willingness of businesses to conform to the standards of conduct defined in such legislation independently of the frequency or likelihood of state inspection; see P. K. Gorecki and W. T. Stanbury, "Canada's Combines Investigation Act: The Record of Public Law Enforcement, 1889‑1976", in J. R. S. Prichard, W. T. Stanbury and T. A. Wilson, eds., Canadian Competition Policy: Essays in Law and Economics (1979), at p. 173; E. Rostow, Planning for Freedom (1962), at p. 307. Discussion of the means by which this tendency towards "voluntary" compliance can be encouraged has quite naturally focussed on the question of sanctions. As an alternative to regular or periodic and unannounced inspection as a means of achieving behaviour modification, the approach in competition law has been to provide for penalties capable of counterbalancing the incentive to flout the law which a low expectation of detection might otherwise produce. In the vast majority of cases, fines will not be sufficient to the task. Regardless of whether they are imposed on the corporation or its officers, they will usually be paid for by the former. Unless they were to be set at so high a level as to be capable of putting violators out of business (a result that would in most cases be politically and economically indefensible), such fines would simply be treated as part of the cost of doing business. When measured against the relatively low probability of detection, the possibility of suffering a loss by way of a fine may seem inconsequential as compared to the likelihood of making or increasing profits through anti‑competitive practices.
For these reasons, fines are unlikely to encourage the kind of compliance that is necessary if the objectives of combines legislation are to be realized. This is the ultimate rationale for the imprisonment of those responsible for the operation of the company or unincorporated business which engages in anti‑competitive conduct. Obviously, there is no way in which the cost of such a penalty can be passed on to the employing company or business. It can only be paid by the officers of the company or business. This introduces an element of personal vulnerability into business decision‑making, in so far at least as it relates to the type of conduct and practices proscribed by the Combines Investigation Act. The result is that the provisions of the Act are much more likely to be a part of the process by which the company or business decides between alternative courses of conduct. It goes without saying that it also increases the probability that conduct that violates the Act will not be engaged in.
From this perspective it can be seen that the terms of imprisonment provided by the Act are closely and rationally related to the Act's regulatory purpose. To a very large extent, the effectiveness of the Act depends upon the degree to which it is complied with by business organizations, and this in turn depends on the existence of a sanction which will force officers and managers to regard the decision‑making of their company or unincorporated employer as a matter of personal responsibility. I believe that this goes far towards justifying any moral or social stigma which imprisonment or its possibility lends to the Act's investigatory machinery. Given that all business ultimately benefits from the competitive conditions the Act is designed to protect, and given that the effectiveness of the Act in protecting these conditions depends on the existence of a compliance incentive other than regular or periodic inspection by anti‑combines authorities, this stigma can be seen as a price that has to be paid in return for the continued enjoyment of the conditions upon which modern business depends.
As a final comment, I would point out that the Combines Investigation Act is not, as regards sanctions, unlike the Income Tax Act. Under section 239 of the latter Act, a taxpayer can be liable to imprisonment to a term "not exceeding 5 years", provided he is, at the election of the Attorney General of Canada, proceeded against by way of indictment. The offences in relation to which this punishment can be imposed are defined in s. 239(1). They include making "false or deceptive statements in a return, certificate, statement or answer filed or made as required by or under this Act" (s. 239(1)(a)); destroying, altering or secreting records or books "to evade payment of a tax imposed by this Act" (s. 239(1)(b)); making or acquiescing in the omission of "a material particular" from the "records or books of account of a taxpayer" (s. 239(1)(c)); evading "wilfully, in any manner . . . compliance with this Act or payment of taxes imposed by this Act" (s. 239(1)(d)); and conspiring "with any person to commit an offence described by paragraphs (a) to (d)" (s. 239(1)(e)). All of these offences relate to conduct that might well be discovered by the exercise of the power to order the production of documents which s. 231(3) confers on the Minister of National Revenue. This has not prevented this Court from characterizing s. 231(3) as a regulatory or administrative power of investigation; see R. v. McKinlay Transport Ltd., supra. I do not see why we should regard the possibility of imprisonment as having a different effect in the case of s. 17 of the Combines Investigation Act.
To recapitulate, the relevance of the regulatory character of the offences defined in the Act is that conviction for their violation does not really entail, and is not intended to entail, the kind of moral reprimand and stigma that undoubtedly accompanies conviction for the traditional "real" or "true" crimes. It follows that investigation for purposes of the Act does not cast the kind of suspicion that can affect one's standing in the community and that, as was explained above, entitles the citizen to a relatively high degree of respect for his or her privacy on the part of investigating authorities. This does not, of course, mean that those subject to investigation under the Act have no, or no significant, expectation of privacy in respect of such investigations. The decision of this Court in Hunter v. Southam Inc., supra, makes clear that they do. But it does suggest that the degree of privacy that can reasonably be expected within the investigative scope of the Act is akin to that which can be expected by those subject to other administrative and regulatory legislation, rather than to that which can legitimately be expected by those subject to police investigation for what I have called "real" or "true" crimes.
Rights of Privacy in Business Records
In so far as s. 17 of the Act is concerned, this conclusion is strengthened by the fact that it will be typically, if not exclusively, used to order the production of business records. I take it as axiomatic, on standard administrative law principles, that s. 17 can only be activated by either the Director of Investigations or the members of the Restrictive Trade Practices Commission in the course of an inquiry or investigation which they are by the Act empowered to undertake. The matters about which the Act allows or requires inquiry or investigation concern, without exception, business decisions or practice, and it would, I think, be a very rare situation in which documents of a personal nature could be relevant to their investigation. This means that business records and documents will normally be the only records and documents that can lawfully be demanded under s. 17.
While such records are not devoid of any privacy interest, it is fair to say that they raise much weaker privacy concerns than personal papers. The ultimate justification for a constitutional guarantee of the right to privacy is our belief, consistent with so many of our legal and political traditions, that it is for the individual to determine the manner in which he or she will order his or her private life. It is for the individual to decide what persons or groups he or she will associate with, what books he or she will read, and so on. One does not have to look far in history to find examples of how the mere possibility of the intervention of the eyes and ears of the state can undermine the security and confidence that are essential to the meaningful exercise of the right to make such choices. But where the possibility of such intervention is confined to business records and documents, the situation is entirely different. These records and documents do not normally contain information about one's lifestyle, intimate relations or political or religious opinions. They do not, in short, deal with those aspects of individual identity which the right of privacy is intended to protect from the overbearing influence of the state. On the contrary, as already mentioned, it is imperative that the state have power to regulate business and the market both for economic reasons and for the protection of the individual against private power. Given this, state demands concerning the activities and internal operations of business have become a regular and predictable part of doing business. Under these circumstances, I cannot see how there could be a very high expectation of privacy in respect of the records and documents in which this information is contained.
My views regarding the limited privacy interest in business records are amply supported, as my colleague L'Heureux‑Dubé J. has demonstrated, by the American courts in assessing the constitutionality of subpoena duces tecum; see Hale v. Henkel, 201 U.S. 43 (1906); Wilson v. United States, 221 U.S. 361 (1911); United States v. Morton Salt Co., 338 U.S. 632 (1950); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946). These cases, it is true, are largely framed in terms of the interrelationship of the state to corporations, and there is no question that the considerations I have described above are even more apparent in the case of corporations. There is nothing either in s. 17 itself or any other section of the Act to suggest that it is limited to the seizure of the records and documents of corporations. However, this would certainly usually be the case. No authority need be cited for the propositions that our economy is dominated by large corporations and that most of the economic activity with which the Act is concerned happens within or is organized by corporations. As in the present case, it is the conduct of corporations that will typically be investigated, and the records and documents of corporations that will be subpoenaed under s. 17. Competition law, therefore, functions largely within the corporate environment.
In fact, however, I do not view the expectations of privacy relating to business documents of corporations as significantly different for present purposes from those of business enterprises functioning under other legal regimes. Officers of the company and other individuals may also be implicated by what is found in corporate documents. Besides, it would be strange if the ambit of the Act were required to be limited by a consideration of the legal mechanism employed to conduct business rather than the nature of the behaviour sought to be regulated. The notion that a distinction is called for because the corporation is a creature of the state, which appears in United States jurisprudence, will not, in my view, withstand scrutiny. It is the policy considerations underlying the legislation that are relevant, and while these considerations apply with greater force to corporate bodies (hence the concentration on them in practice), they are also relevant to other business entities as well.
I, therefore, conclude that those who are ordered under s. 17 of the Combines Investigation Act to "make production of books, papers, records or other documents" can claim only a limited expectation of privacy in respect of those books, papers, records or documents. The relevant question in this appeal then becomes whether s. 17 unreasonably infringes on this limited expectation of privacy.
Sections 10 and 17 -‑ Hunter v. Southam Inc.
The foregoing conclusion is in no way inconsistent with this Court's decision in Hunter v. Southam Inc., supra, notwithstanding that it also concerned the constitutionality of investigative powers under the Combines Investigation Act, specifically those provided by s. 10. While there are in that case some passing remarks that might arguably suggest that the Act was regarded as being of a criminal character (see pp. 154 and 167), the distinction between regulatory and true criminal offences was not even mentioned, let alone considered. I see no reason, therefore, why these elliptic references should be construed as holding that the Act and all the other legislation prescribing anti‑competitive offences must, for all purposes and in all situations, satisfy the stringent standards of reasonableness usually applicable in criminal investigations. To do so would, in my view, severally hamper and perhaps render impossible the effective investigation of anti‑competitive offences. These offences typically take the form of subtle alterations in otherwise perfectly legal business practices, and the effect they produce will often appear to be fully explicable by reference to the forces that normally determine success or failure in our economic system. Investigation to a much greater degree than is the case with regard to more traditional criminal offences will often be a necessary preliminary to the determination of whether the commission of an offence should even be suspected. To hold that anti‑combines investigators must always obtain a warrant by showing reasonable and probable grounds as to the commission of an offence and the existence of relevant evidence before they exercise any power of investigation that falls within the ambit of s. 8 of the Charter would, in these circumstances, immunize perpetrators of anti‑competitive offences from discovery and prosecution.
I see no reason to interpret Hunter v. Southam Inc. in this rigid fashion. It must be remembered that that case was concerned with the constitutionality of s. 10 of the Act, and that that provision, unlike s. 17, conferred on the Director of Investigations a power of search as well as seizure. It must surely be obvious that a power to search premises and take away documents is far more intrusive than a mere power to order the production of documents. Accordingly, the fact that the power there was held to be an unreasonable violation of reasonable expectations of privacy in no way determines that a power to order the production of documents must also be held to be an unreasonable intrusion on privacy. I can do no better in this regard than to refer to the reasons of Wilson J. in the companion case of R. v. McKinlay Transport Ltd., supra. At pages 000 of her reasons, she says, in respect of the Minister of Revenue's power to order the production of documents from taxpayers:
With appropriate modifications, this statement perfectly summarizes the difference between this appeal and Hunter v. Southam Inc. To paraphrase Wilson J., I would say that while a business, be it incorporated or unincorporated, may have little expectation of privacy in relation to its business records relevant to an investigation under the Act, it has a significant privacy interest in the inviolability of its business premises. It must be added that its owners and managers also have a significant privacy interest in the inviolability of their private homes, since there was nothing in s. 10 to restrict the Director's powers of search to business premises.
The proposition that those associated with a business have a greater privacy interest in the physical integrity of their homes than in the records and documents of that business should require no demonstration. But this hardly means that a significant privacy interest does not also subsist in relation to one's business premises. While it can fairly be said that business records do not usually contain information relating to one's personal affairs, opinions and associations, the same cannot be said with confidence of everything that may be found or observed in business files or premises. People who work in offices (the type of workplace that would typically be searched under combines legislation) think of their own offices as personal space in a manner somewhat akin to the way in which they view their homes, and act accordingly. In part this reflects an understandable need to humanize an environment in which people spend a good deal of their waking hours. It may in part reflect the simple reality that human life is not divisible into mutually exclusive compartments of professional and personal which correspond with the office and the home. Indeed, an office may actually be more private than the home in so far as one's relations with family are concerned. Whatever the reason, it is a fact that in an office one is likely to find personal letters, private telephone and address directories, and many other indicators of the personal life of its occupant. The requirement to submit to a search of business premises by agents of the state can therefore amount to a requirement to reveal aspects of one's personal life to the chilling glare of official inspection. It seriously invades the right to be secure against unreasonable search and seizure. This is not the case with a power to order the production of records and documents relevant to the investigation of anti‑competitive offences; there the eyes of the state can see no further than the business records it is entitled to demand.
The Nature and Purpose of Section 17
The greater intrusiveness of the investigative powers challenged in Hunter v. Southam Inc. fully supported the application in that case of the stringent criteria of reasonableness reproduced in Wilson J.'s reasons. By the same token, the limited scope of the power to order the production of documents, together with the limited privacy interests that can be said to reside in the records and documents that can be lawfully demanded, makes these criteria inappropriate for determination of the constitutionality of s. 17. As I have already suggested, their application might make our anti‑combines legislation practically unenforceable. In particular, it would be regrettable if the power to order production of documents was dependent, as it would be under the Hunter v. Southam Inc. criteria, on the ability to establish reasonable and probable grounds to believe that an offence under the Act had been committed.
That is so because of the difficulty of discovering violations of combines legislation. While investigatory difficulties are obviously a concern in all law enforcement activity, it is important to note the distinctive nature of those encountered by authorities charged with the enforcement of anti‑combines legislation. In the traditional police investigation, there will typically be no question that an offence has been committed. A body will have been found, a person will report the theft of their belongings or an attack on their person, or a person will have been observed engaging in a prohibited course of conduct. In other words, the commission of most of the offences typically investigated by the police requires the creation of physical evidence or at least a course of conduct that is physically observable. This means that the usual problem in a police investigation will not be to determine whether the law has been broken, but will instead be the difficulty of linking a particular person or persons to the offence that is known to have been committed.
In the case of anti‑combines legislation, the situation is quite different. Under the Combines Investigation Act, an inquiry by the Director of Investigation and Research or a member of the Restrictive Trade Practices Commission, or the Commission itself, can relate either to the granting or violation of an order under Part V of the Act or the commission of an offence under Part VI. Both the conduct constituting a violation of such order and the conduct constituting an offence are, with exceptions, not generally observable by third parties; nor do they produce a result that announces (or perhaps even strongly indicates) that they have in fact been engaged in. For the most part, they take place within the hidden boardrooms and offices of corporations. They can, in some cases at least, be engaged in by the most subtle of alterations in otherwise totally legitimate activities, such as the pricing of goods or the decision as to whether or not to submit a bid in response to particular tenders. The corollary of this last point is that many of the regulated or proscribed forms of conduct produce results, such as the decision to supply one buyer and not another, or the decision to price a good at one possible level rather than another, or the decision to bid on one tender but not another, which are fully explicable as normal or routine business decisions. In short, much of the conduct the Director must be able to inquire into produces no "smoking gun"; see the remarks of Estey J. in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, at p. 238, cited infra. The following quotation from S. V. Wilson and A. H. Matz, "Obtaining Evidence for Federal Economic Crime Prosecutions: An Overview and Analysis of Investigative Methods" (1977), 14 Am. Crim. L. Rev. 651, at p. 651, encapsulates the problems involved in investigating economic crimes generally:
For example, s. 32.2, which makes it an offence to be party to a bid‑rigging arrangement, defines bid‑rigging as "an agreement or arrangement between or among two or more persons whereby one or more of such persons agrees or undertakes not to submit a bid in response to a call or request for bids or tenders", or "the submission . . . of bids or tenders that are arrived at by agreement or arrangement between or among two or more bidders or tenderers". The implementation of such an arrangement would in many cases be indistinguishable from the usual process by which tenders are submitted and in which tenderers decide between jobs based on their genuine assessment of what they are capable of doing and what they are likely to be recognized as capable of doing. Similarly, s. 38(6) makes it an offence "by threat, promise or any like means, attempt to induce a supplier ... as a condition of his doing business with the supplier, to refuse to supply a product to a particular person or class of persons because of the low pricing policy of that person or class of persons". Again, once implemented, such a "refusal to supply" would probably "look" like a perfectly normal pattern of commercial relations. Similar analyses could be made, in the cases of other offences, in respect of s. 32 (conspiracy) and s. 38 (price maintenance). In the case of the matters with respect to which the Commission can make orders under Part IV.1 of the Act, a similar analysis can be made in respect of s. 31.4 which empowers the Commission to prohibit persons from continuing to engage in exclusive dealing, market restriction or tied‑selling.
In brief, because of the nature of the conduct regulated by the Act, there will in many cases be no way of determining whether proscribed conduct has been engaged in, short of studying the process by which a suspected corporation or business has made and implemented its decisions. In this respect, the situation is not unlike that under the Income Tax Act. I agree with Wilson J. that under the latter Act, it will often be "impossible to determine from the face of the return whether any impropriety has occurred in its preparation" (see R. v. McKinlay Transport Ltd., supra, at p. 000). I would simply add that under the Combines Investigation Act it will likewise often be impossible for those responsible for its enforcement to determine whether it has in fact been violated. I see no reason why this factor should be relevant to the constitutionality of the power to order production found in the former Act but irrelevant to the constitutionality of a substantially similar power found in the latter Act. Investigatory mechanisms which force corporations and other businesses to divulge what they and only they can know about their internal affairs are part of the state's interest in the enforcement of combines legislation. The power to subpoena books, records and documents is obviously one such investigatory mechanism. To limit its use to situations in which the Director or a Commission member can show reasonable and probable grounds to believe that a specific offence has been committed would frustrate the process of investigation at its very inception.
These considerations have played an important role in shaping the American approach to combines legislation. Thus in United States v. Morton Salt Co., supra, the Federal Trade Commission, in the course of an anti‑trust investigation, by subpoena ordered production of certain documents to satisfy itself that previously‑issued cease and desist orders were being complied with. In upholding the subpoena, Jackson J., writing for the court, stated at pp. 642‑43:
This passage was quoted with approval in Federal Trade Commission v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977). In that case, one of the grounds on which the subpoena was challenged was that the relevant legislation did not provide for sufficient judicial supervision of the process by which the subpoena was issued. In rejecting this argument, the Court of Appeal for the District of Columbia said, at pp. 872‑73, that:
I acknowledge that I have found little literature dealing specifically with the importance of s. 17 to the Director and Commission's efforts to enforce the Act. This is not really surprising given that the Director, the officer who has historically shouldered the brunt of the investigative responsibility under the Act, was until quite recently able to rely on the power to enter and search premises. It is instructive to note, however, that in the course of an explanation of proposed amendments to the Act, the Government of Canada defended the scope of the Director's powers of investigation by emphasizing the difficulties of detection which characterize anti‑competitive offences. At page 29 of the Minister of Consumer and Corporate Affairs' pamphlet, Combines Investigation Act Amendments 1984: Background Information and Explanatory Notes (1984), the following appears:
The pamphlet goes on to characterize suggestions that all of the Director's powers of investigation should be circumscribed by a requirement equivalent to the warrant requirement in criminal law as a failure "to appreciate the nature of offences being investigated under the Act" (p. 29).
Those suggestions, I think, also fail to appreciate the real function of s. 17. Essentially, it serves the same purpose as a programme of regular inspection in other areas of the law which, as I have already noted, is neither possible nor desirable in this context. The fact that an investigation may occur encourages compliance as in the case of inspections under other regulatory legislation. As in the case of the Income Tax Act, discussed in R. v. McKinlay Transport Ltd., supra, the Act is to a considerable extent self‑enforcing, but, as already noted, this ultimately depends on effective sanctions which in turn depend on the possibility of adequate investigation. Estey J. aptly describes the need for such investigation in Irvine v. Canada (Restrictive Trade Practices Commission), supra, at p. 238:
I do not think the factors there noted are any less cogent now than they were before the enactment of the Charter .
If it is unnecessary under s. 17 to establish the existence, on reasonable and probable grounds, of a belief that a particular offence has been committed, then compliance with the remaining Hunter v. Southam Inc. criteria also becomes unnecessary. All of these are derivative from the reasonable and probable grounds requirement. This is obviously the case in respect of the requirement to show "reasonable grounds to believe that something which will afford evidence of the particular offence under investigation will be recovered". It is also true of the requirement that the use of the power of search or seizure must depend on "a system of prior authorization, by an entirely neutral and impartial arbiter who is capable of acting judicially in balancing the interests of the state against those of the individual". As Wilson J. today points out in R. v. McKinlay Transport Ltd., there is no role for such an arbiter where there is no requirement of reasonable and probable grounds, since "his central role under Hunter v. Southam Inc. is to ensure that the person seeking the authorization has reasonable and probable grounds to believe that a particular offence has been committed, that there are reasonable and probable grounds to believe that the authorization will turn up something relating to that particular offence, and that the authorization only goes so far as to allow the seizure of documents relevant to that particular offence" (emphasis in original) (p. 000). The fact that s. 17 provides for an ex parte application by members of the Commission, who in Hunter v. Southam Inc. were found to be insufficiently detached from the process of investigation for the purposes of an application for permission to search premises, is not therefore fatal to its constitutionality.
Nor would it make sense to hold that s. 17 must comply with the final Hunter v. Southam Inc. criterion, the requirement "that the only documents which are authorized to be seized are those which are strictly relevant to the offence under investigation". If it is not necessary that the investigators establish reasonable and probable grounds to believe that an offence has been committed, it cannot be necessary that a particular offence be under investigation at all. It follows that it cannot be necessary that only documents relevant to the investigation of a particular offence be seized.
The Scope of Section 17
I hasten to add that this does not mean that there is no limitation to the potential scope of an order to produce documents which can be validly issued under s. 17. The material sought must be relevant to the inquiry in progress. The question of relevancy, however, must be related to the nature and purpose of the power accorded under s. 17. As to whether the obligation, when challenged, to satisfy this standard of relevancy can be said to make a seizure under s. 17 "reasonable" within the meaning of s. 8 of the Charter , I note that it is in American law the principal precondition to the satisfaction of the Fourth Amendment's protection against unreasonable search and seizure, in so far as that protection enures to those ordered to produce documents.
In Oklahoma Press Publishing Co. v. Walling, supra, which concerned an order to produce documents issued by the Administrator of The Fair Labor Standards Act, Rutledge J., speaking on behalf of the majority of the Supreme Court, said of the Fourth Amendment that the "gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable" (p. 208). He went on to say that, in regard to subpoena duces tecum, this did not require "that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one" (p. 209). Instead, it was sufficient that
It is true that Oklahoma Press Publishing Co. v. Walling was not concerned with a subpoena issued in the course of an inquiry into the violation of anti‑trust legislation, but it was applied without qualification to just such a subpoena in United States v. Morton Salt Co., supra, where Jackson J., speaking on behalf of the court, said that "it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant" (p. 652). There are many other cases in which the "relevancy to a lawful inquiry" test has been applied to subpoenas issued by agencies or officials investigating anti‑trust violations; see People v. Allen, 103 N.E.2d 92 (Ill. 1952); Federal Trade Commission v. Tuttle, 244 F.2d 605 (2d Cir. 1957); Adams v. Federal Trade Commission, 296 F.2d 861 (8th Cir. 1961); People v. Dorr, 265 N.E.2d 601 (Ill. 1971); Federal Trade Commission v. Texaco, Inc., supra. What is more, a modern treatise on American anti‑trust law makes it clear that American courts continue to rely on the "relevancy to a lawful inquiry test" in determining the constitutionality of subpoena issued by anti‑trust authorities; see E. W. Kintner and W. P. Kratzke, Federal Antitrust Law (1986), vol. VI, {SS} 45.25, at pp. 248‑56.
The requirement that the order to produce documents be relevant to a lawful inquiry does not exhaust the American law in this area. In Oklahoma Press Publishing Co. v. Walling, the Supreme Court said that beyond relevancy there was the Fourth Amendment requirement of sufficient particularity in "describing the place to be searched, and the persons or things to be seized", which in the case of a subpoena duces tecum "comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry" (p. 209). It is usually said that there are two aspects to this "adequate specification" requirement. The first is quite simply that the subpoena must be sufficiently clear and specific to inform the subpoenaed party of precisely what documents are being demanded. The second is that the subpoena must only be as broad as is necessary for the purposes of the inquiry in progress. An unduly broad subpoena will be struck down on grounds of burdensomness; see Federal Trade Commission v. American Tobacco Co., 264 U.S. 298 (1924), at pp. 305‑6.
While both of these requirements are self‑evidently sensible, they do not in my opinion appear to have a basis distinct from the overriding requirement that the order to produce documents be relevant to a lawful inquiry. Rather, they seem to be common sense standards by which to measure such relevancy. The objection of overbreadth is surely only an objection that documents not relevant to the inquiry in progress are being demanded. To the extent that it could be interpreted as an absolute bar to all subpoenas demanding the production of more than a certain number of documents, it would be inconsistent with the maxim, set down in Oklahoma Press Publishing Co. v. Walling, that "relevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry" (p. 209). Similarly, the requirement that the subpoena be sufficiently precise and clear in terms of its identification of the documents demanded would simply be a necessary prerequisite to any determination of the relevancy of those documents to the inquiry relied on by the demanding authority.
Returning to the requirement of relevancy itself, I note that under the American test, as under s. 17 of the Act, there is no requirement that relevancy to a lawful inquiry be determined before the subpoena is issued; it is sufficient if its relevancy can be challenged by way of judicial review; see W. R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (2nd ed. 1987), vol. 2, {SS} 4.13(e), at p. 382, n. 111. I note also that the expressed rationale for requiring no greater satisfaction of the Fourth Amendment refers to the same factors, namely the difficulty of determining whether violations of anti‑trust (and other regulatory) legislation has in fact occurred, to which I have referred earlier in these reasons. In United States v. Morton Salt Co., supra, Jackson J., we saw, said at p. 642 that the "only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so". In People v. Dorr, supra, which also concerned investigations under anti‑trust laws, the Supreme Court of Illinois said, at p. 603:
Both of these statements can be regarded as applications to the anti‑trust context of an assumption that underlies the position of the American courts to the constitutionality of subpoenae duces tecum in a wide range of administrative and regulatory contexts. LaFave, op. cit., sums up this position by noting that "most courts recognize that administrative regulation of business is a necessary by‑product of industrialization and that effective regulation requires effective investigative procedures" (pp. 380‑81). More expansively, K. C. Davis, in his book Administrative Law Text (3rd ed. 1972), says at pp. 66‑67:
These statements suggest the same kind of connection between broad investigatory powers and effective economic regulation which I have argued is fundamental to a proper understanding of the state's interest in the enforcement of anti‑combines legislation. The following statement from the leading case of Oklahoma Press Publishing Co. v. Walling, supra, at p. 213, is indicative of the rationale that lies behind the relaxation of Fourth Amendment rights in respect of subpoenae duces tecum:
I find this body of American jurisprudence, emphasizing as it does the vital importance of the power to order the production of documents in the effective regulation of modern economic enterprise, highly persuasive. The courts in Canada, no less than those in the United States, cannot remain oblivious to the concrete social, political and economic realities within which our system of constitutional rights and guarantees must operate. In particular, we must recognize that the Charter alone cannot secure that full portion of individual freedom to which we aspire. Effective regulation of the many private and democratically unaccountable institutions which are capable of exercising virtually coercive powers within their sphere of operations is also crucially important. We cannot allow our commitment to the former preclude our further reliance on the latter. I add that as the Canadian economy becomes increasingly integrated with the American and, indeed, the global economy, we should be wary of giving an interpretation to the Constitution that shackles the government's capacity to cope with problems that other countries, with which we share similar human, legal and constitutional values, are quite able to deal with in, to use Eugene Rostow's apt phrase, planning for freedom.
Conclusion
Accordingly, I would on this aspect of the appeal find in favour of the respondents. In my opinion, s. 17 of the Combines Investigation Act does not, having regard to the low expectation of privacy which those subject to its operation can be said to have in regard to the documents that fall within its scope and the important and difficult task of law enforcement in which it assists, countenance the making of unreasonable seizures within the meaning of s. 8 of the Charter . The opportunity to challenge, by way of judicial review, the relevancy of any particular use of s. 17 to matters in respect of which the Director or Commission can conduct inquiries, provides adequate guarantee against potential abuse of the power s. 17 confers. No evidence of any such abuse is apparent in the case before this Court.
I turn now to consider whether s. 17 of the Combines Investigation Act contravenes s. 7 of the Charter . I agree with my colleagues that the power conferred by s. 17 to compel any person to give oral testimony constitutes a deprivation of liberty within the meaning of s. 7. The real question for determination is whether this deprivation is in accordance with the principles of fundamental justice.
The Principles of Fundamental Justice
In considering this issue, I should begin with what this Court has had to say about the interrelationship of s. 7 and other provisions of the Charter and, in particular, the bearing these other provisions have on the content of the principles of fundamental justice. Speaking for the Court in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 326, I noted "the rather obvious point that the rights and freedoms protected by the Charter are not insular and discrete", but are aimed rather at protecting "a complex of interacting values, each more or less fundamental to the free and democratic society that is Canada (R. v. Oakes, [1986] 1 S.C.R. 103, at p. 136)". I further noted that the particularization of the rights in the Charter was intended to structure and focus judicial exposition of these values. I then added, at p. 326:
In a word, the content of each right can only be understood by reference to other Charter provisions. This, I would think, is especially true of a broad expression like the principles of fundamental justice. Lamer J., in a passage from his reasons cited by Wilson J., had made the same point in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 502‑3, where he drew particularly upon the related provisions of ss. 8 to 14 as a guide to the essential elements of our system for the administration of justice. As he put it, ss. 8 to 14 provide "an invaluable key to the meaning of `principles of fundamental justice'".
In the present case, ss. 11(c) and 13 have been particularly relied on as throwing light on the meaning of the "principles of fundamental justice". These provisions which, respectively, protect an accused from being compelled to be a witness in proceedings against the accused, and a witness from having incriminating evidence given by that witness in a proceeding used to incriminate him or her in another proceeding, are clearly relevant in assessing the content of the principles of fundamental justice in the present context. So too, as I shall explain in a moment, is s. 11(d) which guarantees an accused a fair trial. Finally, as L'Heureux‑Dubé and Sopinka JJ. have observed, s. 24(2) of the Charter , which provides that evidence may be excluded if obtained in a manner that brings the administration of justice into disrepute, must also be considered. For it, too, provides that evidence obtained in circumstances that are offensive to our fundamental social values shall not be admitted.
Sections 11(c) and 13 are, however, central to our inquiry and I shall particularly concentrate on these. They clearly point to the fact that the privilege or right against self‑incrimination, sometimes referred to as the right to silence, forms an integral part of the principles of fundamental justice under our legal system. Like my colleagues, I am prepared to agree that s. 7 of the Charter may in certain contexts at least provide residual protection to the interests the right is designed to protect that goes beyond the specific protection provided by ss. 11(c) and 13. The inability of the appellants to come within either of the latter sections is, therefore, not fatal to their claim. I should perhaps mention, however, that the questions raised will, for the most part, be concerned with the admission of evidence. That being so, what will really be involved in most cases is the question of a fair hearing under s. 11(d) of the Charter , and this Court has indicated a preference for dealing with Charter issues in relation to specific provisions rather than under s. 7 where this is possible. On the whole, though, I think the same underlying issues would arise, and I shall deal with them, as argued, on the basis of the principles of fundamental justice.
That said, however, one should not automatically accept that s. 7 comprises a broad right against self‑incrimination on an abstract level or, for that matter, on the American model, complete with all its residual doctrines. If that had been intended, it would have been very easy to say so. That is not what the Charter does, and the Charter must be read in its own terms. Accordingly, while I am prepared to accept that s. 7 can protect the individual from fundamental unfairness arising out of self‑incriminatory statements in circumstances not covered by ss. 11(c) and 13, an assessment of what this means must be made in accordance with the spirit of those provisions. What those provisions build upon, it seems clear, is Canadian, not American, experience. As this Court put it in R. v. Beare, [1988] 2 S.C.R. 387, at p. 401:
The resemblance between the provisions of the Charter and those existing under the applicable statutory regime at the time of its enactment is striking. Textually, all that seems to have been removed from the statutory regime is that s. 13 does not contain the much criticized requirement that a witness must expressly object to the use of his or her testimony. Textually, then, it is clearer than in many other cases that, to borrow the words of Lamer J. in Re B.C. Motor Vehicle Act, supra, at p. 503, "the principles of fundamental justice are to be found in the basic tenets of our legal system" (emphasis added). And in attempting to determine what these basic tenets are, one must, as this Court did in R. v. Lyons, supra, at p. 327, and R. v. Beare, supra, at pp. 402‑3, "consider [the impugned measure] against the applicable principles and policies that have animated legislative and judicial practice in the field".
What these practices have sought to achieve is a just accommodation between the interests of the individual and those of the state, both of which factors play a part in assessing whether a particular law violates the principles of fundamental justice; see R. v. Lyons, supra, at pp. 327 and 329; R. v. Beare, supra, at pp. 403‑5; also my reasons in R. v. Corbett, [1988] 1 S.C.R. 670, at p. 745 (dissenting on another point); see also R. v. Jones, [1986] 2 S.C.R. 284, at p. 304, per La Forest J. (Dickson C.J. and Lamer J. concurring). The interests in the area with which we are here concerned involve particularly delicate balancing, and, as Wilson J. has demonstrated, the various common law countries have approached it in rather different ways. I do not wish to undertake the invidious task of examining which is the better way. All seem to me to be reasonable approaches, but what is important is that the Charter provisions seem to me to be deeply anchored in previous Canadian experience. By this, I do not mean that we must remain prisoners of our past. I do mean, however, that in continuing to grope for the best balance in specific contexts, we must begin with our own experience which, as I read ss. 11(c) and 13, is what the Charter calls upon us to do. Indeed, quite apart from the textual arguments, the Charter was not enacted in a vacuum, a factor referred to in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, and on which this Court relied in United States of America v. Cotroni, [1989] 1 S.C.R. 1469, at p. 1491.
Two final points require mention in considering the nature of the principles of fundamental justice. The first is that these principles vary with the context. It was thus put in R. v. Lyons, supra, at p. 361:
The second point, also mentioned in R. v. Lyons, at p. 362, is "that s. 7 of the Charter entitles the appellant to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined"; see also R. v. Beare, supra, at p. 412.
I turn now to the application of the principles of fundamental justice in the present context.
Compulsory Testimony
Before moving to what I consider the central issue in this case, I find it necessary to deal with two preliminary questions. The first is that I must with respect differ from my colleague Sopinka J. to the extent that he can be taken as saying that a power to compel testimony is by itself contrary to the principles of fundamental justice in the present case. I recognize that as a matter of history, the rights of the subject in respect of questions from those in authority have been divided into the witness's right to have self‑incriminating answers excluded from any proceeding in which he or she subsequently faces charges, and the right of an accused to say nothing at his or her own trial. I agree with Sopinka J. that an accused's right to silence must extend beyond the actual trial itself, but I do not think it must be extended to those who are ordered to testify in a proceeding such as that provided by s. 17 of the Combines Investigation Act. Such an extension would seriously complicate the already difficult task of investigating the type of conduct with which the Act is concerned. In cases where information of value to an investigation can most easily be obtained by asking questions of those responsible for the decisions and actions of particular business organizations, an absolute right to refuse to answer questions would represent a dangerous and unnecessary imbalance between the rights of the individual and the community's legitimate interest in discovering the truth about the existence of practices against which the Act was designed to protect the public.
As noted earlier, this Court has made it clear that the community's interest is one of the factors that must be taken into account in defining the content of the principles of fundamental justice. A right to prevent the subsequent use of compelled self‑incriminating testimony protects the individual from being "conscripted against himself" without simultaneously denying an investigator's access to relevant information. It strikes a just and proper balance between the interests of the individual and the state. An absolute right to refuse to answer questions, however, does not do so. It makes certain information inaccessible while at the same time allowing the individual to refuse to divulge information regardless of whether it is potentially prejudicial to his or her personal interests.
As also noted earlier, in assessing whether a measure violates the principles of fundamental justice, the specific context in which it operates must be steadily kept in mind. The application of these principles must be attuned to that context. Here it must be kept in mind that inquiries under s. 17 are inquisitorial rather than adversarial in nature, a distinction I have borrowed from E. Ratushny, Self‑Incrimination in the Canadian Criminal Process (1979), at p. 21. They are investigations in which no final determination as to criminal liability is reached. As I pointed out in discussing s. 8 of the Charter , unlike standard criminal investigations where the question is whether X has committed offence Y, the questions confronting investigators under the Combines Investigation Act are more likely to take the form of whether offence Y has occurred, and if so, who is likely to be responsible for its commission. In other words, inquiries held under the Act do not focus on the conduct of a single individual in the way in which ordinary criminal investigations typically do. They are more open ended, in the sense that the scope of the information gathering activity is not as narrowly directed to the probability of any particular individual's legal culpability. Relative to ordinary forms of criminal investigations, the investigations conducted under s. 17 do not involve the use of state power in the interests of securing the conviction of a particular individual.
I see a significant difference between investigations that are truly adversarial, where the relationship between the investigated and investigator is akin to that between accused and prosecution in a criminal trial, and the broader and more inquisitorial type of investigation that takes place under s. 17 of the Act. The lower probability of prejudice the latter represents to any particular individual who comes within its reach, together with the important role such investigations play in the effective enforcement of anti‑combines and possibly other regulatory legislation, suggests that a more appropriate balance between the interests of the individual and the state can be achieved by retention of the power to compel testimony and the recognition of the right to object to the subsequent use of so much of the compelled testimony as is self‑incriminatory.
On the latter point, I refer to my discussion under s. 8 of the special difficulty of enforcing a statute like the Combines Investigation Act where only those engaged in the activities regulated by the Act have access to the necessary information. That discussion is as relevant to oral testimony as it is to the compelled production of documents. There is no doubt that the power to compel testimony is important to the overall effectiveness of the investigative machinery established by the Act, in that it allows the necessary scope of particular inquiries to be defined more quickly and with greater precision than would otherwise be possible. In this regard, it allows investigators to identify the "targets" at which they should aim their use of their other investigative powers, such as the power to order the production of documents or the giving of evidence upon affidavit. In short, the power to compel testimony allows anti‑combines investigators to pry information from the only persons with information about the transactions being investigated, and in this way it prevents those persons and their employers from benefiting from the painstaking slowness that would otherwise characterize the investigations of those responsible for the administration of the Act.
Representative Witnesses
My second preliminary point has to do with the effect which the corporate identity of those investigated under the Act has upon the availability of the right against self‑incrimination to those ordered to testify under s. 17. This Court has held that a "corporation cannot avail itself of the protection offered by s. 7 of the Charter "; see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at pp. 1002‑3. As artificial entities, corporations are simply incapable of enjoying the rights to "life, liberty and security of the person" which s. 7 guarantees. In respect to the right against compelled self‑incrimination, this means that corporations are simply incapable of being forced to testify against themselves. They are, in fact, incapable of acting as witnesses at all; see R. v. Amway Corp., [1989] 1 S.C.R. 21, at pp. 37‑39. I do not think it follows, however, that the right against self‑incrimination is therefore unavailable to those who are compelled to give testimony as the representatives of a corporation. In this regard I respectfully disagree with my colleague L'Heureux‑Dubé J. Regardless of whether they give testimony in their representative or personal capacities, those who are compelled to testify under s. 17 are subjected to a direct and real violation of their own liberty. The deprivation that triggers s. 7 in the case of those compelled to testify in their personal capacity is just as present in the case of those compelled to testify in their representative capacity. I see no reason why it should be necessary to conform with the principles of fundamental justice in one case but not the other.
Similarly, the prejudice that can be suffered by those compelled to testify in a representative capacity is one they experience personally. An officer compelled to testify on behalf of his or her corporation may be subsequently charged under the Act, and it would be highly artificial to say that his or her compelled testimony could be used against him or her on the ground that its use did not amount to compelled self‑incrimination on the ground that it was technically the testimony of the company. The reality is that once a person is compelled to give testimony, it makes no difference whether that person speaks on behalf of himself or herself, or on behalf of the corporation. So long as such persons are liable to subsequent prosecution they are susceptible, in the absence of sufficient protection, to the prejudice against which the right against self‑incrimination is intended to guard. This reality is one of the reasons this Court has on two occasions refused to accept the argument that testimony compelled from corporate officers in their representative capacity should be construed as the testimony of the corporation itself; see R. v. N.M. Paterson and Sons Ltd., [1980] 2 S.C.R. 679, at p. 691, and R. v. Amway Corp., supra, at pp. 37‑39.
I do not believe that putting those compelled to testify in a representative capacity on the same footing as those compelled to testify in their personal capacity means that corporations will be able to receive the indirect benefit of a right they are precluded from claiming directly. Holding that persons who are compelled to speak on behalf of a corporation have a right to object to the introduction of that testimony at their own subsequent trial in no way suggests that the corporation would have the same right at its subsequent trial. In fact, the exact opposite would seem to follow. For if the person compelled to testify on behalf of a corporation is entitled to the protection of the right against self‑incrimination, it follows that the testimony is in fact his or her own testimony, at least in so far as entitlement to that particular right is concerned. Its use cannot, therefore, be self‑incriminatory qua the corporation. See R. v. N.M. Paterson and Sons Ltd., supra, at p. 691, and R. v. Amway Corp., supra, at pp. 37‑39.
The Use of Compelled Testimony
I turn now to the central question relating to the application of the principles of fundamental justice to the power of the commissioners to compel testimony under s. 17 of the Act. I reiterate that, in the present case, the subsequent use in criminal proceedings of compelled testimony, and not the giving of that testimony, is the matter to be addressed in considering the application of the principles of fundamental justice. As is made clear in the reasons of my colleague Wilson J., their application to this case turns on the scope of the immunity against subsequent use of compelled testimony set out in s. 20(2) of the Combines Investigation Act. That provision protects those who are compelled to testify under s. 17 against the subsequent use of their oral testimony. It provides no protection against the subsequent use of evidence that is derived from that testimony. In other words, the Act provides what the American courts call "use immunity", but it does not provide what those courts refer to as "derivative use immunity".
On this ground, Wilson J. finds the s. 17 power to compel testimony contrary to the principles of fundamental justice. For support she relies in part on Kastigar v. United States, 406 U.S. 441 (1972), where the Supreme Court of the United States reasoned that the Fifth Amendment, which provides a broad and general right against self‑incrimination, would be violated unless the power to compel testimony was accompanied by an immunity that was co‑extensive with the Fifth Amendment right it was intended to replace. It then ruled that only "immunity from use and derivative use is coextensive with the scope of the privilege against self‑incrimination, and therefore is sufficient to compel testimony over a claim of the privilege" (p. 453).
With respect, I entertain a number of difficulties with this argument. In the first place, it assumes that the Act permits the admissibility of the evidence. That is not what it does. What it does rather (by s. 20(2)) is to make testimony given by a person compelled to testify under the Act inadmissible. It otherwise makes no provision regarding admissibility or inadmissibility. The admissibility of the evidence is governed by the common law. When it is relevant, it is admissible unless it is made inadmissible by virtue of another common law rule, a statute or the Charter . For example, the common law gives the judge a discretion to reject evidence if its prejudicial character substantially exceeds its probative value; see my reasons in R. v. Potvin, [1989] 1 S.C.R. 525. Since that power is predicated on the requirement of a fair trial, this obviously has direct implications for s. 11(d) of the Charter , which I would think has a larger role to play in weeding out prejudicial and unfair evidence -‑ a role that, were s. 11(d) not there, could be played by s. 7. In truth, however, I see no real difference between the standards in these provisions.
Simply because Parliament has provided for the inadmissibility of certain evidence does not mean that it thereby intended that other evidence should be admitted, even when either at common law or under the Charter , such evidence would be rejected on the ground that admitting it would be unfair. It is quite reasonable for Parliament to have dealt with the obvious case of unfairness resulting from the use of self‑incriminating testimony, leaving more subtle situations to be dealt with in the application of general principles. And, as I will demonstrate, derivative evidence raises very subtle questions requiring contextual balancing. It should be remembered that the Charter regime mandates a more flexible and contextual approach to the admissibility of evidence than the United States Constitution; thus there is no counterpart to s. 24(2) of the Charter in that country. I do not think this Court should go out of its way to read an Act that deals only with the inadmissibility of certain evidence to prevent the violation of the Charter as permitting the admissibility of other evidence that would violate it, especially when there is good reason to leave such evidence to be dealt with in accordance with the flexible principles provided either at common law or by the Charter . Parenthetically, I should add, the foregoing approach to the interpretation of the Act is wholly consistent with that taken in the recent cases of R. v. Duarte, [1990] 1 S.C.R. 30, and R. v. Wiggins, [1990] 1 S.C.R. 62.
The approach to ss. 17 and 20(2) of the Combines Investigation Act has obvious implications for the constitutional status of s. 5 of the Canada Evidence Act, R.S.C. 1970, c. E‑10. Section 20(2) is, in fact, no more than a recapitulation of s. 5 in the specific context of anti‑combines legislation. The adoption of an absolute rule that testimonial immunity must in all cases extend to derivative evidence would almost certainly entail striking down s. 5 of the Canada Evidence Act, as well as the virtually identical sections found in provincial legislation. Given that s. 5 has been a part of our law since 1893, I would think this Court should be extremely cautious in bringing about this result. While I realize that the longevity of a statute cannot alone render it consistent with the principles of fundamental justice, it is nevertheless a factor that must be weighed very heavily in any attempt to decide what is required by those principles in particular areas of the law. This Court, we saw, has held that the principles of fundamental justice "are to be found in the basic tenets of our legal system" (see Re B.C. Motor Vehicle Act, supra, at p. 503), and while I of course acknowledge that "the basic tenets of our legal system" are not coextensive with past legislative decisions as to the proper balance between individual rights and collective law enforcement goals, it must surely be conceded that a statutory provision which is almost one hundred years old and which lies at the very heart of the procedures by which we establish guilt and innocence in criminal proceedings has long been regarded as consonant with "the basic tenets of our legal system". Similar considerations, of course, apply if one considers the issue in terms of a "fair hearing" under s. 11(d) of the Charter , rather than under s. 7.
Before going on, I think it may be useful to pinpoint once again the precise nature of the remaining Charter problems relating to oral evidence taken under s. 17 of the Act. For reasons I have given, I do not think objection can properly be made to the taking of the oral evidence under that provision. Moreover, since such evidence is relevant, no objection can be made to its use in prosecutions against the corporation or against individuals other than the witness, or to the use of relevant derivative evidence. The witness's oral evidence cannot, of course, be used against him or her. Section 20(2) so provides and I have no doubt that this would, in any event, be the case either under s. 7 or s. 11(d) of the Charter . It is thus the fact that no provision is made against the subsequent use of derivative evidence against the witness which, arguably, renders s. 17 in conjunction with s. 20(2) invalid as offending against the principles of fundamental justice. As I hope to make clear, however, the issues relating to derivative evidence are complex and obscure and do not easily lend themselves to global solutions. Accordingly, there may well be wisdom in Parliament's not dealing expressly with derivative evidence either in s. 20(2) of the Combines Investigation Act or in s. 5 of the Canada Evidence Act.
I turn then to a closer examination of self‑incrimination through derivative evidence.
Derivative Evidence and Self‑Incrimination
There are serious grounds on which objection can be raised to an absolute rule that testimonial immunity must always extend to evidence derived from compelled testimony. While allowing the Crown to use such evidence in criminal proceedings may in a formal sense be equivalent to permitting direct reliance on the compelled testimony itself, there is an important difference between the type of prejudice that will be suffered in the two cases. It is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self‑incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence that could have been obtained only from the accused.
By contrast, evidence derived from compelled testimony is, by definition, evidence that existed independently of the compelled testimony. This follows logically from the fact that it was evidence which was found, identified or understood as a result of the "clues" provided by the compelled testimony. Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as non‑existence. The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been.
For the moment, I leave aside cases in which this probability is so low as to make the exercise of the power to compel testimony the only way in which a particular piece of derivative evidence would, as a practical matter, have been found. In such cases, it might well be said that the reliance of the Crown on derivative evidence would be virtually indistinguishable from its reliance on the actual compelled testimony. In both, the accused will have been convicted or otherwise prejudiced by evidence that only he or she could have provided. But in other cases, the difference between evidence which the accused has been forced to create (the compelled testimony), and the independently existing evidence he or she has been forced to assist in locating, identifying or explaining (evidence derived from compelled testimony), will be readily discernable. I believe its significance will be equally apparent.
The fact that derivative evidence exists independently of the compelled testimony means, as I have explained, that it could also have been discovered independently of any reliance on the compelled testimony. It also means that its quality as evidence does not depend on its past connection with the compelled testimony. Its relevance to the issues with which the subsequent trial is concerned, as well as the weight it is accorded by the trier of fact, are matters that can be determined independently of any consideration of its connection with the testimony of the accused. If it were otherwise, it would not in fact be derivative evidence at all, but part of the actual testimony itself. Taken together, these aspects of derivative evidence indicate that it is self‑sufficient, in the sense that its status and quality as evidence is not dependent on its relation to the testimony used to find it. In this regard, the very phrase "derivative evidence" is somewhat misleading.
Seen from this light, it becomes apparent that those parts of derivative evidence which are incriminatory are only self‑incriminatory by virtue of the circumstances of their discovery in a particular case. They differ in this respect from incriminatory portions of the compelled testimony itself, which are by definition self‑incriminatory, since testimony is a form of evidence necessarily unique to the party who gives it.
I would think that this, without more, raises doubts as to whether we should be as wary of prosecutorial use of derivative evidence as we undoubtedly must be of such use of pre‑trial testimonial evidence. What prejudice can an accused be said to suffer from being forced to confront evidence "derived" from his or her compelled testimony, if that accused would have had to confront it even if the power to compel testimony had not been used against him or her? I do not think it can be said that the use of such evidence would be equivalent to forcing the accused to speak against himself or herself; once the derivative evidence is found or identified, its relevance and probative weight speak for themselves. The fact that such evidence was found through the evidence of the accused in no way strengthens the bearing that it, taken by itself, can have upon the questions before the trier of fact. In this respect, if reference to its origins was not precluded by an immunity such as that presently found in s. 5 of the Canada Evidence Act, it would in most cases be precluded by simple irrelevance.
My confidence in the above characterization of derivative evidence is strengthened by the decisions of this Court respecting s. 24(2) of the Charter . I realize, of course, that the question under s. 24(2) is whether evidence should be excluded because it was obtained through a breach of the Charter , whereas the question in the present appeal is whether the use of a particular type of evidence would constitute a breach of Charter rights. Nevertheless, I think an analogy to the s. 24(2) jurisprudence can validly be drawn. We are not in this case concerned with the interpretation of one of the specific legal rights set out in ss. 8 to 14 of the Charter . The power to compel testimony granted in s. 17 of the Combines Investigation Act can only be found invalid if we find that the subsequent use of evidence derived from compelled testimony is not "in accordance with the principles of fundamental justice". Surely the views of this Court as to whether the admission of evidence obtained in breach of the Charter would "bring the administration of justice into disrepute" are relevant to a determination of the scope of evidential immunity required by the "principles of fundamental justice". Like my colleague L'Heureux‑Dubé J., I find it difficult to imagine how the use of evidence which does not bring the administration of justice into disrepute can at the same time be contrary to the principles of fundamental justice. The consequence of the former finding is, in effect, to declare that the Charter breach by which evidence was obtained was non‑prejudicial, and in a sense nominal. To argue that the same reasoning cannot be used to determine whether the use of derivative evidence constitutes a breach of the rights guaranteed under s. 7 would be to take an unduly formalistic approach to the interpretation of the Charter . As I mentioned earlier, the discussion might equally be framed in terms of the right to a fair trial under s. 11(d) with similar results, a matter to which I shall return.
The leading case on s. 24(2) is R. v. Collins, [1987] 1 S.C.R. 265. There, Lamer J., at p. 284, drew a distinction between real and self‑incriminating evidence, and stated that the admission of the former would rarely bring the administration of justice into disrepute. This was because it could not be said to have been created by the Charter violation by which it was obtained. Its subsequent use would not, therefore, affect the fairness of the trial of the accused. The situation was different in cases where, after the violation, "the accused is conscripted against himself through a confession or other evidence emanating from him". In those cases:
I would first of all note that I do not believe that in drawing this distinction, Lamer J. intended to draw a hard and fast line between real evidence obtained in breach of the Charter and all other types of evidence that could be so obtained. He did not merely say that the admission of real evidence would generally not affect the fairness of the trial of the accused; he said, at p. 284, that it would not generally affect the fairness of the trial because it "existed irrespective of the violation of the Charter " (emphasis added). Similarly, in reference to confessions "or other evidence emanating" from the accused, he noted that "it did not exist prior to the violation" (emphasis added). I think this clearly indicates that what Lamer J. had in mind was the much broader distinction between evidence which the accused has been forced to create, and evidence which he or she has been forced to merely locate or identify. In other words, he had in mind the kind of distinction which I have attempted to draw between compelled testimony and evidence derived from compelled testimony. This raises a question of crucial importance in understanding the Collins line of cases and their relevance to a determination of the scope of testimonial immunity required by the principles of fundamental justice; why is the prior existence of evidence regarded as relevant to the fairness of the trial in which it is introduced?
There can be only one answer to this question. A breach of the Charter that forces the eventual accused to create evidence necessarily has the effect of providing the Crown with evidence it would not otherwise have had. It follows that the strength of its case against the accused is necessarily enhanced as a result of the breach. This is the very kind of prejudice that the right against self‑incrimination, as well as rights such as that to counsel, are intended to prevent. In contrast, where the effect of a breach of the Charter is merely to locate or identify already existing evidence, the case of the ultimate strength of the Crown's case is not necessarily strengthened in this way. The fact that the evidence already existed means that it could have been discovered anyway. Where this is the case, the accused is not forced to confront any evidence at trial that he would not have been forced to confront if his Charter rights had been respected. In such circumstances, it would be the exclusion rather than the admission of evidence that would bring the administration of justice into disrepute.
Such an understanding of the rationale for the presumption in favour of the admission of real evidence in s. 24(2) cases has recently been made explicit in this Court. In R. v. Black, [1989] 2 S.C.R. 138, a case in which a person eventually charged with murder assisted the police in distinguishing the knife which was used to commit the murder from a number of identical kitchen knives, Wilson J. supported her reliance on R. v. Collins by saying, at p. 164:
At page 165, she added:
I see no reason why a similar approach should not be taken in respect of testimonial immunity. As I earlier noted, the fundamental difference between testimonial and derivative evidence is that the latter, because of its independent existence, could have been found independently of the compelled testimony. Leaving aside the question of whether the mere possibility that derivative evidence could have been found without the compelled testimony is a sufficient basis on which to conclude that its use will not affect the fairness of the trial in which it is used (in R. v. Black, Wilson J. found that the knife "would undoubtedly have been uncovered"), I would stress that this is a characteristic of derivative evidence generally, regardless of whether or not it is real evidence. While it is perhaps self‑evident that real evidence will always be evidence that exists independently of the testimony that reveals its location or relevance, it must be remembered that the same thing can be said of all derivative evidence. It is evidence distinct from the compelled testimony which is found as a result of the investigation of "clue facts" found in that testimony; see Haywood Securities Inc. v. Inter‑Tech Resource Group Inc. (1985), 24 D.L.R. (4th) 724 (B.C.C.A.), at pp. 727‑44 (per Lambert J.A. (dissenting)). Most significantly, the testimony of third parties obtained as a result of the pursuit of such clue facts is clearly evidence that exists regardless of whether or not the person who provided the clue facts was compelled to give testimony. As much as the murder weapon or the stolen car, it is evidence that could have been found in the absence of any assistance, compelled or otherwise, from the person subsequently charged. I do not see why this factor should be relevant to the admissibility of the murder weapon under s. 24(2), but irrelevant to the admissibility of the third party's testimony under the same section, or to the admissibility of either piece of evidence under ss. 7 or 11(d).
The one qualification that must be made to the above has to do with the difference between independently existing evidence that could have been found without compelled testimony, and independently existing evidence that would have been found without compelled testimony. As I have acknowledged at several points in these reasons, there will be situations where derivative evidence is so concealed or inaccessible as to be virtually undiscoverable without the assistance of the wrongdoer. For practical purposes, the subsequent use of such evidence would be indistinguishable from the subsequent use of the pre‑trial compelled testimony. In both cases, it can be said that the accused is being forced to answer a case that he or she was forced to make stronger than it would otherwise have been. In the context of s. 24(2), this is no doubt why Wilson J. laid such stress in R. v. Black on her finding that the murder weapon "would undoubtedly have been uncovered by the police in the absence of the Charter breach" (p. 165). It probably also explains why Lamer J., speaking for a majority of the Court in R. v. Ross, [1989] 1 S.C.R. 3, was so emphatic in making it clear that the admissibility of evidence under s. 24(2) ultimately depended, not on its nature as real or testimonial evidence, but on whether or not it could only have been found with the compelled assistance of the accused. At page 16, he states:
The question therefore becomes: what scope of testimonial immunity is required by the principles of fundamental justice given that it is undeniable that in some unquantifiable proportion of cases both the testimony compelled and the evidence derived from it will be evidence the Crown would not otherwise have been able to obtain? I must say that it would seem overly broad to say that there must be an absolute prohibition against the use at trial of all evidence derived from testimony compelled before trial on the ground that the admission of such evidence can in some cases affect the fairness of the trial. We must remember that in defining the scope of the immunity required by the Charter , we are called upon to balance the individual's right against self‑incrimination against the state's legitimate need for information about the commission of an offence.
Even in cases in which the state's need for information could be satisfied without a power to compel testimony, the exercise of such a power can be an important investigative technique. By compelling testimony from those it has reason to believe possess information about known or suspected wrongdoing, the state can focus its investigative efforts much more quickly and more precisely than may otherwise be possible. The community as a whole benefits as a result. Wrongdoers are identified and apprehended more swiftly, and the perceived effectiveness of law enforcement is thereby enhanced. This in turn increases the law's effectiveness as a deterrent to other possible wrongdoers. In addition, the ability of authorities to quickly focus their investigations means that the lives and activities of fewer people will be disrupted as a result of any particular investigation. Finally, the limited resources that society has to spend on law enforcement activity in general will be utilized in a more cost‑effective manner. This will mean the effective investigation of a greater proportion of offences which, again, can only enhance the law's potency as a deterrent to potential wrongdoers. I again refer to the special need for techniques of this kind in this area of the law.
All of these benefits of a power to compel testimony would either be lost or severely limited if the Constitution required that the legislative grant of any such power must be accompanied by a grant of full use and derivative use immunity. This is confirmed by the experience of the United States. Historically, the Fifth Amendment was interpreted as requiring full transaction immunity for those compelled to give testimony; see Counselman v. Hitchcock, 142 U.S. 547 (1892). This meant immunity from prosecution for any offence related to matters in respect of which testimony had been compelled. It also meant that in many contexts, the state could only obtain information about wrongdoing by depriving itself of the power to prosecute those most responsible for its commission. Such an imbalance between the rights of the individual and the law enforcement interest of the state underlay the retreat to use and derivative use immunity in Kastigar v. United States, supra.
But as some commentators have pointed out, the practical effect of conferring derivative use immunity is in many cases virtually indistinguishable from the conferral of immunity from prosecution; see M. Berger, Taking the Fifth: The Supreme Court and the Privilege Against Self‑Incrimination (1980), at p. 72. That is because it is in many cases extremely difficult for the prosecution to prove that the evidence it seeks to introduce against an accused who has been compelled to testify is not in fact derived from that testimony. It must be remembered that it would not be enough for the Crown to prove simply that the evidence could have been obtained independently of their testimony; that would not preclude actual reliance on the leads found in the compelled testimony. Instead, it must be proved that the evidence was in fact found independently of the compelled testimony. In the wake of an even relatively complex investigation where many different and reinforcing leads and mere hunches have played a part in guiding the investigators, what could possibly constitute such proof? The prosecution would in effect have to fall back on an attempt to furnish proof that the evidence in question could not have been derived from the compelled testimony. But in any case where there was a need for even moderately extensive use of the power to compel testimony, there will be little evidence that can be so clearly segregated from the evidence given in testimony.
In short, a general requirement of derivative use immunity would mean that in many cases the use of the power to compel testimony would furnish wrongdoers with the type of "immunity baths" that were characteristic of the transaction immunity formerly available in the United States; see Berger, op. cit., at pp. 68 and 70. Law enforcement authorities would be faced with the choice of either securing information quickly at the risk of jeopardizing subsequent prosecutions, or conducting more protracted and widely cast investigations. Either way, the advantages the community currently enjoys from the power to compel testimony would be severely restricted. While I accept that this price must be paid where the use of evidence derived from compelled testimony would undermine the fairness of a person's trial, I cannot accept that it should also have to be paid where the use of the derivative evidence would not have that effect. I refer again to the remarks in R. v. Lyons and R. v. Beare to the effect that what the Charter guarantees the accused is a fair trial, not the most favourable procedure imaginable, and that fairness involves the weighing of the public interest in the equation. I note that the absolutist position the courts in the United States have adopted in this area is undoubtedly rooted in the explicit and seemingly absolute right against self‑incrimination found in that country's Constitution.
A Flexible Approach
In this country, where the question of immunity falls to be determined under the principles of fundamental justice, I think we can achieve a more flexible balance between the interests of the individual and that of the state. In a case like this, where the statute does not provide for the evidence to be admitted, there can really be no breach of the Charter until unfair evidence is admitted. Until that happens, there is no violation of the principles of fundamental justice and no denial of a fair trial. Since the proper admission or rejection of derivative evidence does not admit of a general rule, a flexible mechanism must be found to deal with the issue contextually. That can only be done by the trial judge.
Such an approach can be traced to the common law. In R. v. Corbett, supra, dissenting on another point, I endeavoured to elaborate upon the broad lines of the flexible approach to ensuring a fair trial flowing from the fundamental postulates of the law of evidence which, at p. 714, I summarized as follows: "All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy" (emphasis added); see generally at pp. 713‑15. Lamer J., on this point speaking for a unanimous Court, had expressed a similar view in Morris v. The Queen, [1983] 2 S.C.R. 190, at p. 201. Over time, of course, many of the decisions made pursuant to this principle have become fixed rules.
In R. v. Corbett, supra, a majority of this Court held that this judicial discretion to exclude unduly prejudicial evidence could be applied in relation to evidence of convictions made admissible in evidence by s. 12 of the Canada Evidence Act; see in addition to my reasons (pp. 729‑40), those of Dickson C.J. (Lamer J. concurring), at p. 697, and Beetz J., at p. 699. As I indicated in R. v. Potvin, supra, Dickson C.J. concurring, this discretion to exclude evidence where its prejudicial effect substantially outweighs its probative value is ultimately grounded in the trial judge's duty to ensure a fair trial. As I there explained, that is the view now accepted by the House of Lords; see R. v. Sang, [1980] A.C. 402. The requirement of a fair trial has in other areas moved the courts to reject evidence to ensure an accused a fair trial, though it would otherwise have been admissible; see Lucier v. The Queen, [1982] 1 S.C.R. 28.
The fact that this discretion to exclude evidence is grounded in the right to a fair trial has obvious constitutional implications. The right of an accused to a fair hearing is constitutionalized by s. 11(d), a right that would in any event be protected under s. 7 as an aspect of the principles of fundamental justice (see R. v. Corbett, per Beetz J., at p. 699, and my reasons, at pp. 744‑46; Dickson C.J. does not really comment on this issue). But this does not, any more than does the common law, prevent the admission in evidence of matters that are damaging to the accused as opposed to unfair. What it may do is to encourage the flexibility which some judges were (wrongly in my view) reluctant to exercise at common law; see in this context R. J. Delisle, "Evidence -‑ Judicial Discretion and Rules of Evidence -‑ Canada Evidence Act, s. 12 : Corbett v. The Queen" (1988), 67 Can. Bar Rev. 706.
I see no reason why an approach like that in the now constitutionalized rule adopted in the case of prejudicial evidence should not be extended to derivative evidence which, like other prejudicial evidence within the rule, can only be dealt with having due regard to the need to balance the right of the accused and that of the public in a specific context. In my view, derivative evidence that could not have been found or appreciated except as a result of the compelled testimony under the Act should in the exercise of the trial judge's discretion be excluded since its admission would violate the principles of fundamental justice. As will be evident from what I have stated earlier, I do not think such exclusion should take place if the evidence would otherwise have been found and its relevance understood. There is nothing unfair in admitting relevant evidence of this kind, a proposition consistent with the cases under s. 24(2) of the Charter . The touchstone for the exercise of the discretion is the fairness of the trial process.
In R. v. Corbett, too, I dealt with the manner in which the evidence of convictions should be dealt with in relation to a fair trial, in a passage that is clearly relevant to derivative evidence as well. I stated, at p. 745:
I should add that the Chief Justice took a similar approach, though he was more strongly disposed towards the admission of relevant evidence in that specific context. The precise balance that should apply is one, of course, that will require development over time.
It is neither necessary nor advisable in this appeal to attempt a more extensive elaboration of the more flexible approach to derivative evidence I have suggested. It suffices to say that however prejudicial particular instances of derivative evidence may be in other law enforcement contexts, the instances where such evidence could be said to be prejudicial to those who are compelled to testify under s. 17 of the Combines Investigation Act, and are later charged with an offence under the Act, are likely to be somewhat rare. It must be remembered that the Director has other means of investigation and research available to him. The section itself permits the Director and the Commission to order the production of business documents which may reveal much of the information obtained through the testimony. Again, the Director and the Commission have the power to obtain oral evidence from others. It would ill comport with the principles of fundamental justice if the courts were required to reject evidence simply because one witness gave the evidence before it was given by another, or it was otherwise discovered by an investigation that would undoubtedly have been carried out in any event -‑ any more than its admission would be regarded as bringing the administration of justice into disrepute under s. 24(2) of the Charter . The one thing the power to compel testimony will never allow anti‑combines investigators to use as evidence, however, is information they could not otherwise have uncovered.
It may, of course, be argued that the matter should be left for Parliament to deal with. I do not agree. I suspect that the best course Parliament could adopt in achieving a proper balance between the rights of the accused and the public in this area would be to accord the trial judge a discretion of the kind described. I see no reason why a court charged with the duty of ensuring a fair trial consistently with the principles of fundamental justice should have need to await the enactment of a statute to discharge this responsibility, especially when the bulk of the law of evidence was judicially created in the first place. I note that the Ontario Court of Appeal has held that s. 7 of the Charter gives the court a residual discretion to relax the rules of evidence in certain limited circumstances to ensure that an accused is given a fair trial; see R. v. Williams (1985), 44 C.R. (3d) 351; R. v. Rowbotham (1988), 63 C.R. (3d) 113. Had the judges in the past considered that the admission of derivative evidence would in certain circumstances "tend to render the trial process unfair" (see R. v. Ross, supra, at p. 16), they would have rejected the evidence as prejudicial or unfair; that is how the law of evidence developed. It would seem odd if judges, who are now the guardians of the Constitution, were to flinch at excluding such evidence in those situations where its admission would make the trial process unfair. The law of evidence, like other laws, must be adapted where need be to conform to constitutional imperatives. The alternative of declaring void a provision that otherwise passes muster under the principles of fundamental justice seems excessive. Especially is this so when its counterparts under s. 5 of the Canada Evidence Act and equivalent provincial provisions have formed part of the very fabric of the general law of evidence for nearly one hundred years.
Conclusion
I conclude, then, that the use of derivative evidence derived from the use of the s. 17 power in subsequent trials for offences under the Act does not automatically affect the fairness of those trials. It follows that complete immunity against such use is not required by the principles of fundamental justice. The immunity against use of actual testimony provided by s. 20(2) of the Act together with the judge's power to exclude derivative evidence where appropriate is all that is necessary to satisfy the requirements of the Charter .
Disposition
I would dismiss the appeal with costs throughout. I would answer the constitutional question in the negative.
//L'Heureux-Dubé J.//
The following are the reasons delivered by
L'Heureux‑Dubé J. -- The appellants launched a constitutional attack upon s. 17 of the Combines Investigation Act, R.S.C. 1970, c. C‑23 (the "Act"), in the early stages of an investigation into the activities of appellant Thomson Newspapers Ltd. They contend that a compulsion to testify and to produce corporate documents violates ss. 7 and 8 of the Canadian Charter of Rights and Freedoms . I state at the outset that, in my view, this contention oversteps the legitimate boundaries of constitutional protection envisaged under these provisions.
Before examining the arguments relative to the constitutionality of s. 17, I find it necessary to briefly review the nature and purpose of the legislation under attack.
I. The Combines Investigation Act
Legislation relative to the control of anti‑competitive conduct has had a long and eventful history in Canada. This history is recounted in great detail by Dickson J. (now Chief Justice) in Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206, at pp. 250‑55. In that case, Dickson J. agreed with the views which had been expressed by Martin J.A., speaking for the Ontario Court of Appeal, in R. v. Hoffmann‑La Roche Ltd. (Nos. 1 and 2) (1981), 33 O.R. (2d) 694 namely, that when considered as a whole, the Act could properly be supported under the federal trade and commerce power (pp. 735‑36). In the recent decision of General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, this view was unanimously upheld by this Court and there is no question today that the Act constitutes a valid exercise of federal trade and commerce power.
While anti‑combines legislation may have given rise to different constitutional characterizations throughout the years, this Court has always found the legislation's underlying rationale to be the eradication of practices that inhibit free competition. As early as 1912, in Weidman v. Shragge (1912), 46 S.C.R. 1, commenting on s. 498 of the then Criminal Code , Idington J. emphatically stated: "Destroy competition and you remove the force by which humanity has reached so far" (p. 28). In Stinson‑Reeb Builders Supply Co. v. The King, [1929] S.C.R. 276, Mignault J. found that the same provision was designed to prevent "[i]njury to the public by the hindering or suppressing of free competition" (p. 280). Duff C.J. referred to s. 498 in Container Materials, Ltd. v. The King, [1942] S.C.R. 147, and stated (at p. 152):
These views were reiterated by Taschereau J. in Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403, who went so far as to state that the "public is entitled to the benefit of free competition" (emphasis in original, p. 407). The wording of s. 498 of the Criminal Code , considered in the above cases, was "in all essentials the same" as that of s. 32(1) of the Act: see Aetna Insurance Co. v. The Queen, [1978] 1 S.C.R. 731, at pp. 744‑46. Recently, in General Motors, supra, the Chief Justice referred to the purpose of the Act in the following terms (at p. 676):
The Chief Justice also remarked (at p. 682):
It is part of a legislative scheme aimed at deterring a wide range of unfair competitive practices that affect trade and commerce generally across Canada, and is not limited to a single industry, commodity or area. The conduct being prohibited is generally of national and of international scope. The presence or absence of healthy competition may affect the welfare of the economy of the entire nation. It is, therefore, within the sphere of the federal Parliament to seek to regulate such competition in the interest of all Canadians.
Section 17 forms part of the administrative machinery which was established in order to promote the Act's purpose. The Restrictive Trade Practices Commission's (the "Commission") investigative and reporting duties have been fully considered in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, at pp. 193‑205, and there is no need to add anything to what was said there in this respect.
I now propose to consider the main question: does s. 17 of the Act infringe ss. 7 or 8 of the Charter ?
II. Constitutionality of Section 17 of the Act
For the sake of convenience, I reproduce hereunder the text of s. 17 of the Act:
I pause to note at this juncture that s. 17 comes into play at the investigative stage of the process. At this stage, the Commission is embarked on a fact‑finding inquiry. In the most usual case, a complaint alleging conduct contrary to the Act has been filed with the Commission and the purpose of the inquiry is to consider whether "evidence exists" to substantiate the allegation. To this end, s. 17(2) empowers the Commission to summon a person "to give evidence as a witness" (emphasis added). No individual is charged and the inquiry is not a trial. The provisions allowing the Commission to communicate its findings to the Minister and the eventual possibility of sanctions, administrative or penal, only come into play at a later stage. In commissions of inquiry such as a coroner's inquest (Faber v. The Queen, [1976] 2 S.C.R. 9), a commission of inquiry into organized crime (Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152) and a commission of inquiry into criminal acts allegedly committed by the R.C.M.P. (Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] l S.C.R. 218), individuals compelled to testify were treated as "witnesses" by this Court, even though, as a result of their testimony, the "witnesses" might possibly have been exposed to subsequent criminal charges. In my opinion, the status of the individuals subject to an order under s. 17 of the Act is similar to the status of a witness appearing before a commission of inquiry. There is no "accused" nor any "suspect". In ordinary parlance, whether someone is a "suspect" refers to the existence of grounds to believe that the individual has engaged in forbidden activities. In the context of an order under s. 17, there are no such grounds, but mere allegations. The possibility of subsequent proceedings does not transform these allegations into formal accusations. Accordingly, whether the allegations relate to the witness or not, the result is the same: an individual subject to an order under s. 17 is more properly characterized as a witness.
Against this background, I will now turn to the constitutional validity of s. 17. That provision, it will be noted, contains two aspects which are at the heart of the present appeal. It requires the individual named in the order to "be examined upon oath" as well as to "make production of books, papers, records or other documents". It will accordingly be useful to examine the constitutionality of each of these aspects separately.
Does the Requirement to Testify Violate Section 7 or Section 8 of the Charter ?
Though both ss. 7 and 8 of the Charter are invoked to attack the constitutionality of s. 17 of the Act, s. 8 does not in my view come into play at this stage. This provision states:
To hold that an order to testify constitutes a "seizure", presumably a "seizure" of one's thoughts, would be to stretch that word beyond any meaning. I agree with F. Chevrette, "Protection Upon Arrest or Detention and Against Retroactive Penal Law", in Beaudoin and Ratushny, eds., The Canadian Charter of Rights and Freedoms (2nd ed. 1989), 387, when he states, at p. 390:
In R. v. Stewart, [1988] 1 S.C.R. 963, this Court decided that confidential information could not be the object of theft under the Criminal Code . Although certain issues of policy specific to the Criminal Code underlie the conclusion reached in that case, Lamer J. added in obiter that information per se could not be the object of a "taking" (at p. 979):
These considerations apply to all intangibles, including oral evidence. Wilson J. finds that a "seizure" under s. 8 means "the taking hold by a public authority of a thing belonging to a person against that person's will" (p. 000). Even on this basis, in my view, testimonial compulsion does not involve the "taking of a thing" for the purpose of s. 8.
Turning now to s. 7 of the Charter , it provides:
La Forest J.
Footnotes
- [1] * See Erratum, [1990] 1 S.C.R. iv
Cases cited
- 54 O.R. (2d) 143 54 O.R. (2d) 143 ¶ 1, ¶ 6
- 57 O.R. (2d) 257 57 O.R. (2d) 257 ¶ 1, ¶ 6
- Ziegler v. Hunter 2 F.C. 608 p. 629 ¶ 3, ¶ 5
- Hunter et al. v. Southam Inc. 17569-1984-09-17 ¶ 3, ¶ 5, ¶ 6
- Re B.C. Motor Vehicle Act 17590-1985-12-17 pp. 499, pp 502, p. 503 ¶ 3, ¶ 4, ¶ 6
- Re Transpacific Tours Ltd. and Director of Investigation and Research 25 D.L.R. (4th) 202 ¶ 3, ¶ 4
- Haywood Securities Inc. v. Inter‑Tech Resource Group Inc. 24 D.L.R. (4th) 724 pp 727 ¶ 3, ¶ 4, ¶ 6
- Curr v. The Queen item-2704-1972-05-01 ¶ 3, ¶ 4
- A.G. (Can.) v. Can. Nat. Transportation, Ltd. 16998-1983-10-13 pp 250 ¶ 4, ¶ 6
- Irvine v. Canada (Restrictive Trade Practices Commission) 16950-1987-03-26 pp 194, p 238, pp 193 ¶ 4, ¶ 6
- Irwin Toy Ltd. v. Quebec (Attorney General) 20074-1989-04-27 pp 1002 ¶ 4, ¶ 6
- Singh v. Minister of Employment and Immigration 17898, 17904, 17952, 17997, 18207, 18209, 18235-1985-04-04 ¶ 4
- R. v. Edwards Books and Art Ltd. 19046, 19053, 19054, 19069-1986-12-18 pp 785 ¶ 4
- R. v. Therens 17692-1985-05-23 ¶ 4
- Haywood Securities Inc. v. Inter‑Tech Resource Group Inc. 62 B.C.L.R. 183 ¶ 4
- 220: In Haywood Securities He stated his conclusions on this issue at p. 220: In Haywood Securities, supra ¶ 4
- R. L. Crain Inc. v. Couture 6 D.L.R. (4th) 478 ¶ 4
- R. v. Big M Drug Mart Ltd. 18125-1985-04-24 ¶ 4, ¶ 5, ¶ 6
- R. v. Whyte 18530-1988-07-14 ¶ 4
- Dubois v. The Queen 18608-1985-11-21 ¶ 5
- Kastigar Kastigar, supra ¶ 5
- R. v. Collins 17937-1987-04-09 ¶ 5, ¶ 6
- R. v. Strachan 19749-1988-12-15 ¶ 5
- R. v. Brydges 20583-1990-02-01 ¶ 5
- R. v. Morgentaler 19556-1988-01-28 p 70 ¶ 5, ¶ 6
- R. v. Oakes 17550-1986-02-28 p 136 ¶ 5, ¶ 6
- Hunter Hunter ¶ 5
- R. v. Simmons 18767-1988-12-08 p 527 ¶ 5
- R. v. Dyment 19786-1988-12-08 p 431 ¶ 6
- Re Alberta Human Rights Commission and Alberta Blue Cross Plan 1 D.L.R. (4th) 301 p 307 ¶ 6
- R. v. Rao 46 O.R. (2d) 80 p 96 ¶ 6
- Re Belgoma Transportation Ltd. and Director of Employment Standards 51 O.R. (2d) 509 p 512 ¶ 6
- R. v. Quesnel 12 O.A.C. 165 p 169 ¶ 6
- Bertram S. Miller Ltd. v. R. 3 F.C. 291 pp 319 ¶ 6
- R. v. Bichel 5 W.W.R. 261 pp 271 ¶ 6
- R. v. McKinlay Transport Ltd. 1 S.C.R. 000 p. 000 ¶ 6
- General Motors of Canada Ltd. v. City National Leasing 19724-1989-04-20 pp 658 ¶ 6
- R. v. Wetmore 16889-1983-10-13 ¶ 6
- R. v. Chiasson 135 D.L.R. (3d) 499 p 503 ¶ 6
- Chiasson v. The Queen 17085-1984-05-03 ¶ 6
- of R. v. McKinlay Transport Ltd. of R. v. McKinlay Transport Ltd., supra ¶ 6
- United States v. Morton Salt Co. United States v. Morton Salt Co., supra ¶ 6
- Oklahoma Press Publishing Co. v. Walling Oklahoma Press Publishing Co. v. Walling, supra ¶ 6
- People v. Dorr People v. Dorr, supra ¶ 6
- Oklahoma Press Publishing Co. v. Walling Oklahoma Press Publishing Co. v. Walling, supra, at p. 213 p. 213 ¶ 6
- R. v. Lyons 19125-1987-10-15 p 326, p. 327, pp. 327 and 329, p. 361 ¶ 6
- R. v. Beare; R. v. Higgins 20384-1988-12-01 p 401, pp. 402, pp. 403, p. 412 ¶ 6
- R. v. Corbett 19220-1988-05-26 p 745 ¶ 6
- R. v. Jones 18962-1986-10-09 p 304 ¶ 6
- United States of America v. Cotroni; United States of America v. El Zein 20035, 20036-1989-06-08 p 1491 ¶ 6
- R. v. Amway Corp. 20232-1989-01-19 pp 37, pp. 37 ¶ 6
- R. v. N.M. Paterson and Sons Ltd. item-5742-1980-12-18 p 691, p. 691 ¶ 6
- R. v. Potvin 20116-1989-03-23 ¶ 6
- R. v. Duarte 20542-1990-01-25 ¶ 6
- R. v. Wiggins 20993-1990-01-25 ¶ 6
- R. v. Black 20292-1989-08-10 ¶ 6
- Haywood Securities Haywood Securities ¶ 6
- R. v. Ross 19176-1989-01-19 p. 16 ¶ 6
- Kastigar v. United States Kastigar v. United States, supra ¶ 6
- Morris v. The Queen 17174-1983-10-13 p 201 ¶ 6
- R. v. Sang A.C. 402 ¶ 6
- Lucier v. The Queen 15801-1982-01-26 ¶ 6
- R. v. Williams 44 C.R. (3d) 351 ¶ 6
- R. v. Rowbotham 63 C.R. (3d) 113 ¶ 6
- R. v. Hoffmann‑La Roche Ltd. (Nos. 1 and 2) 33 O.R. (2d) 694 ¶ 6
- Weidman v. Shragge scr-46-1 ¶ 6
- Stinson-Reeb Builders Supply Co. v. The King scr-1929-276 ¶ 6
- Container Materials Ltd. et al. v. The King scr-1942-147 ¶ 6
- Howard Smith Paper Mills Ltd. et al. v. The Queen scr-1957-403 ¶ 6
- Aetna Insurance Co. et al. v. The Queen item-6024-1977-04-29 pp 744 ¶ 6
- Faber v. The Queen item-2689-1975-03-25 ¶ 6
- Di Iorio v. Warden of the Montreal Jail item-2572-1976-04-01 ¶ 6
- R. v. Stewart 17827-1988-05-26 ¶ 6
Statutes and regulations cited
-
- s. 7 ¶ 1, ¶ 2, ¶ 3, ¶ 4, ¶ 5, ¶ 6
- s. 8 ¶ 1, ¶ 2, ¶ 3, ¶ 4, ¶ 5, ¶ 6
- s. 17 ¶ 1, ¶ 3, ¶ 4, ¶ 5, ¶ 6
- s. 17(1) ¶ 3, ¶ 5
- s. 1 ¶ 3, ¶ 4, ¶ 5
- s. 17(2) ¶ 3, ¶ 6
- s. 11(c) ¶ 3, ¶ 4, ¶ 5, ¶ 6
- s. 10 ¶ 3, ¶ 5, ¶ 6
- s. 13 ¶ 4, ¶ 5, ¶ 6
- s. 24 ¶ 4
- s. 24(2) ¶ 4, ¶ 5, ¶ 6
- s. 14 ¶ 4, ¶ 6
- s. 11(d) ¶ 5, ¶ 6
- s. 11 ¶ 5
- s. 52(1) ¶ 6
- s. 20 ¶ 6
- s. 38(6) ¶ 6
- s. 20(2) ¶ 6
-
- 17(4) ¶ 3, ¶ 5
- (8) ¶ 3
- s. 231(3) of the Income Tax Act ¶ 6
- section 239 ¶ 6
- s. 239(1) ¶ 6
- s. 239(1)(a) ¶ 6
- s. 239(1)(b) ¶ 6
- s. 239(1)(c) ¶ 6
- s. 239(1)(d) ¶ 6
- s. 239(1)(e) ¶ 6
-
Canadian Bill of Rights
-
- s. 5(2) of the Canada Evidence Act ¶ 3, ¶ 4, ¶ 5
- s. 45 ¶ 4
- section 14(1) ¶ 4
- section 15 ¶ 4
- Section 15 ¶ 4
- section 18 ¶ 4
- s. 18(2) ¶ 4
- Section 22 ¶ 4
- ss. 4(1) ¶ 4
- 5 of the Canada Evidence Act ¶ 4, ¶ 5
- s. 4(1) ¶ 5
- s. 5 ¶ 5, ¶ 6
- s. 5 of the Canada Evidence Act ¶ 5, ¶ 6
- ss. 4 ¶ 5
- s. 5(2) ¶ 5
- s. 31.1 ¶ 6
- s. 36.1 ¶ 6
- s. 31.4 ¶ 6
- s. 12 of the Canada Evidence Act ¶ 6
- s. 12 ¶ 6
-
Unresolved citations
- s. 17 of the Combines Investigation Act ¶ 1, ¶ 5, ¶ 6
- s. 34(1)(c) ¶ 1
- s. 10 ¶ 1
- s. 17 ¶ 1
- s section 17 of the Combines Investigation Act ¶ 2, ¶ 6
- section 17 of the Combines Investigation Act ¶ 4
- the Constitution ¶ 5, ¶ 6
- s s. 17 of the Combines Investigation Act ¶ 5
- ss. 17(1) ¶ 5
- 17(4) of the Combines Investigation Act ¶ 5
- Section 17 of the Combines Investigation Act ¶ 5
- s Section 17 of the Combines Investigation Act ¶ 5
- Sections 17(1) ¶ 5
- paragraphs (a) ¶ 6
- (d) ¶ 6
- s. 20(2) of the Combines Investigation Act ¶ 6
- ss. 17 ¶ 6
- 20(2) of the Combines Investigation Act ¶ 6