Stelco Inc. v. Canada (Attorney General)

Stelco Inc. is a Canadian corporation which produces various types of steel which it sells domestically and internationally. The individual appellants held, at the time of this appeal, managerial or supervisory positions with Stelco.

The individual appellants each received a letter from the respondent O'Farrell, Director of Investigation and Research. Attached to the letter was an Order To Appear issued under the authority of s. 17 of the Combines Investigation Act. The letter and the Order indicated that the Director had commenced an inquiry under s. 8 of the Act to determine whether Stelco had committed the indictable offence of price discrimination contrary to s. 34(1) of the Act. The individual appellants were advised that they were persons who were to be examined under oath pursuant to s. 17 and, additionally, that they were persons whose conduct was the subject of an inquiry. Stelco was also advised of the inquiry and the service of the Orders To Appear and that it was a person whose conduct was the subject of an inquiry.

The appellants commenced an action in the Federal Court, Trial Division, claiming, inter alia, a declaration that s. 17 of the Act violates s. 7 of the Charter . The application was dismissed by Jerome A.C.J. in reasons reported at [1988] 1 F.C. 510. His decision was appealed to the Federal Court of Appeal. On October 22, 1987 the Federal Court of Appeal dismissed the appeal: see (1987), 83 N.R. 193. Leave to appeal to this Court was granted on January 25, 1988, [1988] 1 S.C.R. xiv.

The Chief Justice set the following constitutional questions:

1.Is s. 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?

2.If the answer to question No. 1 is affirmative, is s. 17 of the Combines Investigation Act, R.S.C. 1970, c. C-23, justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act , 1982 ?

Written and oral argument before this Court was, however, confined to the s. 7 issue.

(a) At Trial

The appellants argued before Jerome A.C.J. that the Combines Investigation Act failed to provide certain "procedural" protections for those compelled to appear and testify and that this was inconsistent with the principles of fundamental justice. They suggested that the member of the Restrictive Trade Practices Commission who orders the examination and authorizes the Orders To Appear in not an impartial arbiter and is therefore not fit to perform this function. Jerome A.C.J. ruled that the acts of the Commission member in ordering the examination were administrative and therefore not subject to the criteria enunciated by Dickson J. (as he then was) in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and in particular the requirement of prior authorization for searches granted by an impartial arbiter capable of acting judicially.

The appellants also argued that the right to counsel provided by s. 20(1) of the Act was not a sufficient safeguard of the appellants' rights during a s. 17 hearing. Jerome A.C.J. rejected this argument, relying on this Court's decision in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181. He held that fundamental justice in the administrative context does not require as expansive a right to counsel as in the judicial context. Jerome A.C.J. arrived at this conclusion despite the fact that Irvine was not a Charter case.

Jerome A.C.J. next directed his attention to the question whether s. 7 of the Charter contains a right against self-incrimination broader than that found in ss. 11(c) or 13 of the Charter . He essentially adopted the position taken on this issue by the Ontario Court of Appeal in Thomson Newspapers Ltd. v. Director of Investigation and Research (1986), 57 O.R. (2d) 257 wherein it was held that s. 7 did not contain a general right against self-incrimination. To those reasons he added the following comments at pp. 524-25:

These proceedings are not of a nature to require the protection against self-incrimination which is accorded a person charged with an offence. I have already determined that the investigative powers under attack here are part of an administrative procedure. No substantive determination of the parties' rights can be made at the investigative stage. Neither the Director nor the Commission has the authority under the Combines Investigation Act to institute criminal proceedings against the applicants based on information obtained during the inquiry. The Director's authority is limited to referring the evidence to the Attorney General of Canada (subsection 15(1)) or placing a statement of evidence before the Restrictive Trade Practices Commission pursuant to sections 18 and 47. In the latter case, notice is to be given to all persons against whom allegations are made. Those persons are then afforded full opportunity to be heard in person or by counsel. The Commission's report which reviews the evidence and contains recommendations is then transmitted to the Minister. Accordingly, the inquiry stage of the proceedings does not determine any rights of the applicants or impose any liabilities on them. It does not require, therefore, any additional protection against self-incrimination beyond that provided by subsection 20(2) of the Act.

The privilege against self-incrimination, as it exists in Canada, does not permit these witnesses to refuse to answer questions during the course of an investigative hearing. It clearly cannot provide them the right to refuse to attend. They are fully protected against the subsequent use of any incriminating answers by the Canada Evidence Act and subsection 20(2) of the Combines Investigation Act, as well as section 13 of the Charter . When coupled with the right to counsel, these protections are more than adequate in the factual circumstances of this case.

Jerome A.C.J. held that there was no breach of s. 7 and it was therefore unnecessary to consider s. 1 of the Charter .

(b) The Federal Court of Appeal (Urie, Marceau and Desjardins JJ.)

Urie J. gave a brief opinion on behalf of the court. He endorsed the findings of Jerome A.C.J. and the Ontario Court of Appeal in Thomson, on the issue of whether or not s. 7 of the Charter included rights broader than those contained in ss. 11(c) and 13. With regard to the "procedural" issues raised by the appellants, Urie J. agreed with Jerome A.C.J. that they were resolved by this Court's decision in Irvine.

This appeal was heard along with the appeal in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 000, and this judgment is being delivered concurrently with the judgment in Thomson. The two appeals raise the same issue under s. 7 of the Charter and for the reasons I gave in Thomson on the s. 7 issue, I would answer the relevant constitutional question as follows:

1.Is s. 17 of the Combines Investigation Act, R.S.C. 1970, c. C-23, inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms and, therefore of no force or effect?

2.If the answer to question No. 1 is affirmative, is s. 17 of the Combines Investigation Act, R.S.C. 1970, c. C-23, justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982 ?

Answer: No.