R v Amway Corp. [1989] 1 S.C.R. 21: Compellability -- Right of person charged with an offence not be compelled to be a witness in proceedings against that person in respect of that offence

Present: Dickson C.J. and McIntyre, Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Constitutional law -- Canadian Charter of Rights and Freedoms -- Evidence -- Compellability -- Right of person charged with an offence not be compelled to be a witness in proceedings against that person in respect of that offence -- Corporation sued civilly for forfeiture under Customs Act -- Application made to examine officer of corporation -- Whether or not s. 11(c) applicable -- If so, whether or not legislation justified under s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1, 11(c).

Evidence -- Compellability -- Corporation sued civilly for forfeiture under Customs Act -- Application made to examine officer of corporation -- Whether or not respondent a witness and therefore not compellable pursuant to s. 4(1) of Canada Evidence Act -- Whether or not rules of common law and equity prevent respondent's being examined on discovery in forfeiture proceedings -- Canada Evidence Act, R.S.C. 1970, c. E-10, ss. 4(1), 5 -- Customs Act, R.S.C. 1970, c. C-40, ss. 102, 180, 192, 252.

Respondent was convicted under the Criminal Code of making false declarations with respect to goods imported into Canada to avoid duty and paid a fine. Appellant, prior to this conviction, commenced an action in Federal Court alleging that the respondent and Amway of Canada Limited incurred a forfeiture pursuant to the ss. 180 and 192 of the Customs Act, by making untrue declarations and passing false invoices, and alternatively under s. 192 by undervaluing the goods. Appellant further claimed that the respondent and Amway of Canada Limited were liable for duties and taxes payable on the imported goods pursuant to s. 102 of the Act.

Upon completion of the pleadings in this action and following the examination for discovery of appellant's nominee, appellant brought an application in the Federal Court Trial Division requesting an order pursuant to Rule 465(1) of the Federal Court Rules that respondent produce one of its officers for examination for discovery. The Federal Court of Appeal reversed the Trial Division's decision to grant the application. The issue here was whether the respondent may be ordered to produce an officer for examination for discovery pursuant to Rule 465(1). In addition, two constitutional questions were stated for consideration: whether Rule 465 infringed s. 11(c) of the Canadian Charter of Rights and Freedoms by requiring a corporate defendant to be examined for discovery in an action brought pursuant to ss. 180 and 192 of the Customs Act, and if so, whether such examination was justified under s. 1.

Held: The appeal should be allowed; the first constitutional question should be answered in the negative.

Any right of respondent to resist an order for discovery of its officer must be determined by reference to its rights at common law and not under s. 4(1) of the Canada Evidence Act. At common law an accused was neither competent nor compellable as a witness. Section 4(1) only addresses competence and the common law rule with respect to the non-compellability of an accused person at the instance of the Crown was left intact.

The common law privileges against self-incrimination were assumed, without deciding, not to have been subsumed in the Charter provisions.

A defendant in actions for forfeitures and penalties enjoyed three rights at common law: (1) to resist an order for discovery in forfeiture actions; (2) to resist an order for discovery in penalty actions; (3) to remain silent in the face of any question put to the defendant on discovery or at trial which tended to incriminate the defendant or subject the defendant to a forfeiture or penalty. There may also have been a right, comparable to that of an accused in a criminal proceeding not to be compelled at trial to testify at the instance of the party seeking to enforce the penalty or forfeiture, but that right did not extend to officers or employees of a corporation.

The broad discovery provisions of Rule 465 of the Federal Court Rules and of s. 5 of the Canada Evidence Act ended the existence of these rules. The enforcement of the first two rules against discovery in actions for forfeitures and penalties is out of keeping with the practice in our courts, reflected in Rule 465, to widen all avenues of discovery. Any policy against actions for forfeiture is now contained in various statutory provisions empowering the Court to grant relief from forfeiture and penalties. The third rule, the privilege of a witness against self-incrimination, was replaced by s. 5 of the Canada Evidence Act.

A corporation per se cannot be a witness and therefore cannot come within s. 11(c) of the Charter. There is only one witness under examination, the officer testifying for the corporation, not the corporation itself. The mere fact that rules of evidence permit greater latitude in the source of the information given by the witness does not transform the source into a witness. It would strain the interpretation of s. 11(c) if an artificial entity were held to be a witness. Section 11(c) was intended to protect the individual against the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth. Its language is not adequate to overrule the cases denying corporations the common law right against compellability at trial at the instance of the Crown. It was not necessary to consider whether a corporation was a person and it was assumed that the proceedings in question amounted to being charged with an offence.

It was unnecessary to deal with whether the claim should be characterized as being one for duties and taxes.

The place of examination ought to have been fixed after affording the parties an opportunity to make representation and file any additional material required. In the absence of agreement as to the place of examination, this aspect of the matter should be remitted to the judge hearing the application to fix the place of examination in accordance with Rule 465(12).


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