Research, Combines Investigation, Restrictive Trade Practices Commission

Thomson Newspapers Limited, v Director of Investigation and
Research, Combines Investigation, Restrictive Trade Practices Commission [1990] 1 S.C.R. 425
: Self-incrimination - Right to remain silent - Derivative evidence - Unreasonable search and seizure - Combines investigation - Corporation suspected of predatory pricing - Corporate officers ordered to testify under oath and to produce documents

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law - Charter of Rights - Fundamental justice - Self-incrimination - Right to remain silent - Derivative evidence - Combines investigation - Corporation suspected of predatory pricing - Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act - Failure to comply with a s. 17 order subject to legal consequences - Whether s. 7 of the Canadian Charter of Rights and Freedoms can be invoked - Whether s. 17 infringes s. 7 of the Charter - If so, whether s. 17 justifiable under s. 1 of the Charter - Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(c), 13.

Constitutional law - Charter of Rights - Unreasonable search and seizure - Combines investigation - Corporation suspected of predatory pricing - Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act - Whether s. 17 infringes s. 8 of the Canadian Charter of Rights and Freedoms - If so, whether s. 17 justifiable under s. 1 of the Charter.

Combines - Investigation - Corporation suspected of predatory pricing - Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act - Whether s. 17 infringes the guarantee to fundamental justice in s. 7 of the Canadian Charter of Rights and Freedoms or the guarantee against unreasonable search and seizure in s. 8 of the Charter.

Evidence - Self-incrimination - Derivative evidence - Documentary evidence - Real evidence - Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act - Whether complete immunity against the use of derivative evidence required by the principles of fundamental justice - Whether protection against self-incrimination under s. 7 of the Canadian Charter of Rights and Freedoms limited to "testimonial evidence" - Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 17, 20(2) -Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5.

The corporate appellant and several of its officers, the individual appellants, were served with orders to appear before the Restrictive Trade Practices Commission to be examined under oath and to produce documents. The orders were issued pursuant to s. 17 of the Combines Investigation Act (the "Act") in connection with an inquiry to determine if there was evidence that the corporation had committed the offence of predatory pricing contrary to s. 34(1)(c) of the Act. A person who refuses to comply with a s. 17 order can be punished by the Commission pursuant to s. 17(3). A refusal may also constitute an offence under the Act. The appellants applied to the Ontario High Court for a declaration that s. 17 and the orders were inconsistent with the guarantee to fundamental justice in s. 7 of the Canadian Charter of Rights and Freedoms and the guarantee against unreasonable search or seizure in s. 8 of the Charter. The High Court allowed the application in part holding that s. 17 of the Act violated s. 8 but not s. 7. The decision was appealed by the appellants and cross-appealed by the respondents. The Court of Appeal held that s. 17 did not violate either section.

Held (Lamer and Sopinka JJ. dissenting in part and Wilson J. dissenting): The appeal should be dismissed.

Question:Is section 17 of the Combines Investigation Act inconsistent with the provisions of ss. 7 and 8 of the Canadian Charter of Rights and Freedoms, and therefore of no force or effect?

Answer:No. Lamer J. would not reply as regards s. 7 and would answer yes as regards s. 8. Wilson J. would answer yes. Sopinka J. would answer yes as regards s. 7 to the extent only that it authorizes an order to be made for an examination under oath of a person, and would answer no as regards s. 8.

Section 7 of the Charter

Per La Forest J.: Section 17 of the Act does not contravene s. 7 of the Charter. Section 7 may, in certain contexts, provide residual protection to the interests protected by specific provisions of the Charter. It does so in the case of s. 11(c) which protects a person charged from being compelled to be a witness in proceedings against that person and s. 13 which protects a witness against self-incrimination, but s. 7 does not give an absolute right to silence or a generalized right against self-incrimination on the American model.

The power conferred by s. 17 of the Act to compel any person to give oral testimony constitutes a deprivation of liberty but such compulsion, in itself, does not violate the principles of fundamental justice. The right of an accused or a suspect to remain silent, while extending beyond the trial itself, does not extend to those who are ordered to testify in a proceeding such as that provided by s. 17 of the Act. The power to compel testimony is important to the overall effectiveness of the investigative machinery established by the Act. An absolute right to refuse to answer questions in a s. 17 inquiry 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. The section 17 inquiries are inquisitorial rather than adversarial in nature. They are investigations in which no final determination as to criminal liability is reached. The right to prevent the subsequent use of compelled self-incriminating testimony protects an 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 important factor that must be taken into account in defining the content of the principles of fundamental justice. While a corporation cannot avail itself of the protection offered by s. 7 of the Charter, and in respect of the right against compelled self-incrimination, is incapable of being forced to testify against itself, the right against self-incrimination is still available to those who are compelled to give testimony as the representatives of a corporation. 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.

While the admission of compelled testimony is prohibited, complete immunity against the use of derivative evidence is not required by the principles of fundamental justice. The use of derivative evidence obtained as a result of the s. 17 power in subsequent trials would not generally affect the fairness of those trials. Derivative evidence, because of its independent existence, can be found independently of the compelled testimony. There is thus nothing unfair in admitting relevant evidence of this kind against a person if it would have been found or appreciated apart from that person's compelled testimony under s. 17, a proposition consistent with the cases under s. 24(2) of the Charter. If the evidence would not have been found or appreciated apart from such compelled testimony, it should, in the exercise of the trial judge's discretion to exclude unfair evidence, be excluded since its admission would violate the principles of fundamental justice. The admission of the derivative evidence would in these circumstances tend to render the trial process unfair; the accused would have to answer a case that he was forced to make stronger than it would otherwise have been. Unfairness is avoided by its exclusion. It follows that the immunity against use of compelled testimony provided by s. 20(2) of the Act together with the trial judge's power to exclude derivative evidence where appropriate is all that is necessary to satisfy the requirements of the Charter.
Per L'Heureux-Dubé J.: While the constitutionality of s. 17 of the Act is attacked here, one must not lose sight of the fact that corporations cannot claim the protection of s. 7 of the Charter because they are, on principle, excluded from the ambit of that constitutional guarantee. Section 7 therefore cannot be invoked by the individual appellants acting as representatives of the corporation. To allow them to do so would grant corporations rights which they cannot enjoy. With respect to witnesses qua individuals, an order to testify under s. 17 of the Act may constitute a violation of their rights of "liberty and security of the person" within the meaning of s. 7 of the Charter, but such violation would be effected in accordance with the principles of fundamental justice. Under section 7, "fundamental justice" requires a protection coextensive with the individual's testimonial participation in the investigation. Use immunity satisfies this requirement and such protection is afforded by s. 20(2) of the Act. This protection serves the end of preventing the state from using incriminating evidence which was obtained by the individual himself, while at the same time tailoring the protection to what our system considers to be the appropriate boundary of fairness in the criminal process.

Fundamental justice under s. 7 does not afford witnesses any constitutional "right to remain silent" nor does it require a constitutional immunity over derivative evidence. The "right to remain silent" enjoyed by an accused - namely, the right to refuse to testify -does not extend to witnesses in proceedings such as the one set up by s. 17 of the Act. Individuals called as witnesses in a s. 17 investigation are not charged with an offence. The mere possibility that the witnesses might later be prosecuted does not change their status as witnesses. Finally, derivative evidence, which consists mainly of real evidence, cannot be assimilated to self-incriminating evidence and does not go to the fairness of the judicial process which is what, in the end, fundamental justice is all about.

A subpoena duces tecum issued under s. 17 of the Act does not infringe s. 7 of the Charter. No claim can be advanced by, or on behalf of the corporation, under this constitutional provision. As far as the appellant individuals qua individuals are concerned, assuming that a subpoena deprives them of their "liberty or security of the person", fundamental justice under s. 7 does not extend protection over corporate books and records. Like section 13 of the Charter, the s. 7 residual protection against self-incrimination is limited to "testimonial evidence". Moreover, an order requiring an individual or the officer of a corporation to produce documents does not involve the fabrication of evidence; the individual or officer acts as a "mere conduit" for the delivery of pre-existing records. Thus, there is no suggestion that the use of such evidence in a subsequent trial would affect the fairness of the proceedings.

Per Lamer J.: Section 7 of the Charter can be invoked in this case because human beings as well as a corporation are directly involved. The specific enumerations in ss. 11(c) and 13 of the Charter are not necessarily exhaustive of the protection afforded by s. 7, and do not prevent residual content being given to s. 7. Assuming that it is a principle of fundamental justice that a witness may refuse to give an incriminating answer, it could be argued that s. 17 of the Act violates s. 7 to the extent that it enables the Commissioner to punish for contempt a witness "who refuses to answer a question on the ground that it may tend to incriminate him". However, it is s. 20(2) of the Act, and not s. 17, which took away the common law right to refuse to give incriminatory answers, and which brings the refusal to answer within contempt and triggers the violation. If section 20(2) of the Act and s. 5(1) of the Canada Evidence Act - a similar provision - did not exist, a witness's liberty would not be put in jeopardy by s. 17. A challenge under s. 52 of the Constitution Act, 1982 grounded on s. 7 of the Charter must attack the law that allegedly limits the principles of fundamental justice. It is the limits prescribed by law to the principles of fundamental justice that must be justified under s. 1 of the Charter, and it is the law that imposes these limits that must be put on trial. Here, the appellants challenged the wrong section. A section 1 analysis of s. 17 of the Act would be in fact a s. 1 analysis of s. 20 and would lead this Court into inferentially pronouncing upon s. 5(1) of the Canada Evidence Act. This Court, therefore, should not pronounce upon the s. 7 issue without a direct challenge to the constitutional validity of s. 20(2) of the Act and s. 5(1) of the Canada Evidence Act.

Per Wilson J. (dissenting): Section 7 of the Charter, which is confined to the protection of human beings and has no application to corporations, can be successfully invoked in this case because three individuals as well as a corporation are named as parties. If section 17 is found to be of no force or effect, this finding applies, of course, to corporations as well as human beings.

Section 17 of the Act violates the individual appellants' right to liberty and security of the person within the meaning of s. 7 of the Charter. Section 17 compels an individual to appear at proceedings against his will and to testify on pain of punishment if he refuses. The evidence given by the individual may later be used to build a case against him in a subsequent criminal prosecution. The state-imposed compulsion, linked as it is to the criminal process, touches not only upon that individual's reasonable expectation of privacy but also upon his physical integrity. The fact that the s. 17 procedure is in itself "investigatory" as opposed to "prosecutorial" is irrelevant when a criminal prosecution is a potential consequence of the s. 17 investigation. Further, the fact that the individual may challenge the proceedings by way of judicial review or under s. 17(3) is also irrelevant in determining whether the right to liberty and security of the person has been violated.

The violation of the individual appellants' right to liberty and security of the person was not in accordance with the principles of fundamental justice. Section 7 of the Charter protects a suspect in a subsequent proceeding against the use of evidence derived from testimony given by him in an earlier proceeding - a protection not available under ss. 11(c) and 13 of the Charter. 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. Section 17, therefore, violates s. 7 to the extent that it compels suspects to testify in an investigatory proceeding, which is in effect a criminal investigation, so as to build up a case against themselves through their own self-incriminating testimony and evidence derived from such testimony. Section 20(2) of the Act provides no greater protection than s. 5(2) of the Canada Evidence Act and does not protect a suspect against the use of the derivative evidence in a subsequent criminal prosecution.

Section 17 of the Act cannot be saved under s. 1 of the Charter. The effective investigation of suspected criminal and quasi-criminal activity and the monitoring of the economic activity in Canada are two legislative objectives of sufficient importance to warrant infringement of individual rights and freedoms. Society has a very real interest in controlling crime and in ensuring the stability of the market-place. The means chosen to achieve these objectives, however, are not "reasonable and demonstrably justified". While compelling individuals to appear and testify regarding their business activities is a rational way of monitoring compliance with the Act, s. 17 does not interfere with the individual appellants' s. 7 rights as little as possible. There is no evidence in this case to suggest that the government's objectives would be frustrated if individuals compelled to testify were afforded derivative use protection or that the enforcement of the Act will be drastically impaired if derivative use protection is given to persons testifying under s. 17.

Per Sopinka J. (dissenting): The provisions of s. 17 of the Act relating to oral testimony violate the right to remain silent and contravene s. 7 of the Charter. While the privilege against self-incrimination is limited to the right of an individual to resist testimony as a witness in a legal proceeding, the right of a suspect or an accused to remain silent operates both at the investigative stage of the criminal process and at the trial stage. The testimonial aspect of the right to remain silent is specifically included in s. 11(c) of the Charter. The right of a suspect to remain silent during the investigative stage, which has the status of a principle of fundamental justice, is included in s. 7. This section is the repository of many of our basic rights which are not otherwise specifically enumerated. The right to remain silent, therefore, may not be reduced, truncated or thinned out by federal or provincial action. For the purpose of this appeal, the right to remain silent is a right not to be compelled to answer questions or otherwise communicate with police officers or others whose function it is to investigate the commission of criminal offences. The protection afforded by the right is not designed to protect the individual from the police qua police but from the police as investigators of criminal activity. It protects the individual against the affront to dignity and privacy which results if crime enforcement agencies are allowed to conscript the suspect against himself. Since this right is protected by the Charter, it follows that the provinces or the federal government cannot transfer the investigative function, which is normally carried out by the police, to other agents who are empowered by statute to force suspects or potential suspects to testify. In the field of anti-competitive crime, the police work is carried out largely, if not exclusively, by the Director of Investigation and Research and his staff. Although s. 17 has other purposes, an important one is to aid the Director and his staff in investigating specific crimes. To this extent, the hearing officer is a policeman armed with a subpoena. Parliament has not separated out of s. 17 its use for different purposes, many of which would not violate the right to remain silent. Accordingly, the whole of the provision relating to the compelling of testimony violates s. 7. For the reasons given by Wilson J., this violation could not be justified under s. 1 of the Charter and s. 17, to the extent of the inconsistency with s. 7, must be struck down.

The provisions of s. 17 of the Act relating to the production of documents do not contravene s. 7 of the Charter. While the right to remain silent and the privilege against self-incrimination protect a suspect from compelled testimony, they do not protect him from compelled production of documents. The question relating to the communicative aspects arising out of such production does not need to be decided in this case.

Section 8 of the Charter

Per La Forest J.: Section 17 of the Act does not infringe s. 8 of the Charter. The essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person's consent. An order to produce documents under s. 17, therefore, constitutes a seizure within the meaning of s. 8. But a s. 17 seizure is not unreasonable. The Act, though supported by penal sanctions, is essentially regulatory in nature, and hence part of our administrative law. It is 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. The conduct prohibited by the Act is conduct which is made criminal for strictly instrumental reasons, and the use of criminal sanctions, including imprisonment, are necessary to induce compliance with the Act. As the discovery of violations to the Act will often require access to information as to the internal affairs of business organizations, the s. 17 power to compel the production of documents is important to the overall effectiveness of the investigative machinery established by the Act and does not constitute an unreasonable intrusion on privacy. Business records and documents will normally be the only records and documents that can lawfully be demanded under that section. There is only a relatively low expectation of privacy in respect of these documents since they are used or produced in the course of activities which, though lawful, are subject to state regulation as a matter of course. Section 17 does not infringe on this limited expectation of privacy. 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 in the order must be relevant to the inquiry in progress in light of its nature and purpose. 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. This opportunity to challenge the relevancy of any particular use of s. 17, by way of judicial review, provides adequate guarantee against potential abuse of the power s. 17 confers. No evidence of any such abuse is apparent in this case.

The stringent standards of reasonableness articulated in Hunter, and usually applicable to criminal investigations, were inappropriate to determine the reasonableness of a seizure under s. 17 in light of the limited scope of the s. 17 power to order the production of documents and the limited privacy interests with regard to these documents. The application of the Hunter standards would severally hamper and perhaps render impossible the effective investigation of anti-competitive offences.
Per L'Heureux-Dubé J.: A subpoena duces tecum under s. 17 of the Act does not infringe s. 8 of the Charter. While a subpoena duces tecum issued under s. 17 may be considered a "seizure" within the meaning of s. 8, the "seizure" contemplated by s. 17 is reasonable. The Act is a complex scheme of economic regulation aimed at eradicating practices that impair free competition in the market-place and s. 17 is part of the administrative machinery which was established in order to promote the Act's purpose. Because the Act's administrative machinery and enforcement provisions are part of a regulatory scheme, the reasonableness of the subpoena duces tecum issued under s. 17 must be assessed taking into account a number of factors, including the importance of the Act's underlying purpose, the necessity of impairing privacy interests, and the absence of other, less onerous, alternatives. These factors indicate clearly that public interest in the freedom and protection of citizens in the market-place prevails over the minimal infringement of the privacy interests of those required to disclose information of an economic nature. First, the legislative purpose of the Act serves important socio-economic interests. Second, the existence of a mechanism of discovery is necessary in order to properly serve the regulatory objective of the legislation. Third, as a means chosen to bring about the legislative end, the subpoena is significantly less intrusive than other alternatives. In addition, in the case of corporations, their privacy interest is relatively low with respect to requests for economic information. Fourth, while there is no express condition precedent to the issuance of the subpoena, the order can be contested and reviewed before an impartial judicial officer (s. 17(3)). The review provides a safeguard to ensure that s. 17 orders are issued for the sole purpose of advancing the regulatory aim of the Act. A subpoena duces tecum issued under s. 17 does not, therefore, constitute an "unreasonable seizure" within the meaning of s. 8 of the Charter.

An order to testify under s. 17 of the Act does not infringe s. 8 of the Charter. 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. The word "seizure" under s. 8 should be restricted to tangible things.

Per Sopinka J.: An order under s. 17 requiring the production of documents does not constitute a seizure within the meaning of s. 8 of the Charter. The persons served with an order for production under s. 17 have the opportunity to challenge the validity and the extent of the demand before producing the documents. This opportunity for review before the documents are produced goes to the existence of a seizure. This factor bears directly on the extent of governmental intrusion. A mere demand which is not yet enforceable is, in this age of pan-governmental activity, a minimal intrusion. This minimal intrusion cannot be tantamount to a seizure. If a definition of "seizure" that is over-inclusive is adopted, a wholesale departure from the standards articulated in Hunter will be necessary. A more restrictive interpretation is thus preferable reserving the application of the Hunter standards for those state intrusions which are truly out of keeping with what individuals have come to expect as a routine fact of daily life in a modern state.

Per Lamer and Wilson JJ. (dissenting): Sections 17(1) and 17(4) violate the right to be secure against unreasonable seizure enshrined in s. 8 of the Charter. A seizure under s. 8 is the taking by a public authority of a thing belonging to a person against that person's will. Applying a purposive interpretation of s. 8, the compulsory production of documents in a criminal or quasi-criminal law context falls within that definition. Whether the public authority "takes" the documents or compels the person to hand them over, the impact on the person's right to privacy in the documents is the same. Sections 17(1) and 17(4), therefore, constitute a seizure within the meaning of s. 8, and this seizure is unreasonable because it does not meet the test of reasonableness set forth in Hunter. The possibility of an individual's challenging the s. 17 order before a judge, prior to giving up possession of the documents, either by way of an application for review or by way of s. 17(3) does not meet the concerns underlying the Hunter criteria. Only the sophisticated will be aware of this procedure. Most people will respond forthwith to the authority's demand. Nor does it meet the requirement of reasonable and probable grounds. The Hunter 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. Nevertheless, the more akin the legislation is to traditional criminal law, the less likely it is that departures from the Hunter criteria will be countenanced.

Sections 17(1) and 17(4) of the Act cannot be saved under s. 1 of the Charter. 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.

| Return to Topic Menu | Return to Main Menu |