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Comité paritaire de l'industrie de la chemise v. Potash; Comité paritaire de l'industrie de la chemise v. Sélection Milton, [1994] 2 S.C.R. 406

 

Comité paritaire de l'industrie

de la chemise                                                                                      Appellant

 

and

 

The Attorney General of Quebec                                                     Appellant

 

v.

 

Jonathan Potash          Respondent

 

and between

 

Comité paritaire de l'industrie

de la chemise                                                                                      Appellant

 

and

 

The Attorney General of Quebec                                                     Appellant

 

v.

 

Sélection Milton          Respondent

 

and

 

The Attorney General for Ontario,

the Attorney General for Saskatchewan,

the Attorney General for Alberta and

the Association des comités paritaires du

Québec Inc.                                                                                        Interveners

 

Indexed as:  Comité paritaire de l'industrie de la chemise v. Potash; Comité paritaire de l'industrie de la chemise v. Sélection Milton

 

File No.:  23083.

 

Hearing and judgment:  January 27, 1994.

 

Reasons delivered:  June 23, 1994.

 


Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for quebec

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Unreasonable search or seizure ‑‑ Inspections ‑‑ Powers of inspection of an agency responsible for implementing a government decree in a regulated industrial sector ‑‑ Whether these powers of inspection, conferred by a provincial statute, infringe s. 8 of the Canadian Charter of Rights and Freedoms ‑‑ Act respecting Collective Agreement Decrees, R.S.Q., c. D‑2, s. 22(e).

 

                   Civil rights ‑‑ Unreasonable search or seizure ‑‑ Inspections ‑‑ Powers of inspection of an agency responsible for implementing a government decree in a regulated industrial sector ‑‑ Whether these powers of inspection, conferred by a provincial statute, infringe s. 24.1 of the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 ‑‑ Act respecting Collective Agreement Decrees, R.S.Q., c. D‑2, s. 22(e).

 

                   Following a complaint, the appellant Comité paritaire was informed that work had been given sewing shirts with the brand of the respondent Sélection Milton to employees who were not paid.  Inspectors from the Comité paritaire went to the respondent's premises on two occasions to obtain a list of the shirt sewing subcontracts given out by the respondent, see the respondent's pay register and visit its workshop in order to meet with the employees.  Under the second paragraph of s. 22(e) of the Act respecting Collective Agreement Decrees ("ACAD"), inspectors "may, as of right and at any reasonable time, examine the registration system, the compulsory register and the pay‑list of any employer, take copies or extracts therefrom, verify as regards any employer and any employee the rate of wage, duration of work, apprenticeship system and observance of the other provisions of the decree [and] require . . . all information deemed necessary".  The respondent Potash, representing Sélection Milton, refused to grant the inspectors' requests on the ground that they had no search warrant.  Proceedings were then brought against the respondents pursuant to s. 33 ACAD and the respondents were fined for having obstructed the inspection.  The Court of Québec concluded that s. 22(e) did not infringe either s. 24.1 of the Quebec Charter of Human Rights and Freedoms or s. 8  of the Canadian Charter of Rights and Freedoms .  On appeal by trial de novo, the Superior Court upheld this judgment, but the Court of Appeal allowed the respondents' appeal and rendered a verdict of not guilty.  The court concluded that the second paragraph of s. 22(e) is inconsistent with s. 24.1 of the Quebec Charter and s. 8  of the Canadian Charter  since it does not contain a requirement of reasonable and probable grounds to believe that the inspected employer is in fact covered by the decree.

 

                   Held:  The appeal should be allowed.

 

                   Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin and Iacobucci JJ.:  The powers of inspection set out in the second paragraph of s. 22(e) ACAD are contemplated by s. 8  of the Canadian Charter .  The power to make copies of documents is analogous to that of requiring documents to be produced and constitutes a seizure within the meaning of s. 8 .  As for the other inspection powers set out in the second paragraph, they may be assimilated to a search within the meaning of the same section.  The visit to the premises is the foundation of the power to examine specific documents, verify certain working conditions, and require information.  Despite being less invasive than a search, inspection is unquestionably an "intrusion".

 

                   These powers of inspection are reasonable and do not infringe s. 8 .  The ACAD is a regulatory statute whose purpose is to ensure decent working conditions in certain sectors of industry where employees are among the most vulnerable.  The inspection powers set out in this Act enable the parity committees to monitor compliance by employers with the various decrees and observance of the working conditions they impose.  The need for such powers is clear, especially since compliance with the standards imposed by the decrees depends first and foremost on employer honesty.  Given that employers' activities are extensively regulated by the state, the reasonable expectations of privacy they may have with respect to the documents mentioned in s. 22(e), whose content is specifically provided for by the ACAD for professional employers, or with respect to the premises where an activity subject to specific standards is conducted, are considerably lower.  Moreover, the particular limits placed on the inspection scheme protect, so far as possible, the right to privacy of the individuals affected.  Inspectors may not make copies of any documents other than those mentioned in the second paragraph.  They may not force an entry into a workplace if the employer refuses to admit them; they must rather bring proceedings for obstruction.  The possibility that certain inspections may take place at the home of the employer or of the employees, when it coincides with their workplace, does not make the inspection powers less reasonable.  These powers are sufficiently circumscribed by the nature of the persons affected ‑‑ the employer and employee ‑‑ to attain the purpose of the ACAD.  The powers to check certain information and to require information deemed necessary are essential to the carrying out of the parity committees' function.  These powers must be exercised in accordance with the purpose of the ACAD and it will always be possible to challenge abuses.  Such a possibility does not alter the validity of the legislative scheme and the balance it strikes between the interests of society and the individual's right to privacy.  Finally, the second paragraph of s. 22(e) is not unreasonable by reason of its application to all employers, and not only those that inspectors have reasonable grounds to believe are subject to a decree.  Within the limits of their respective areas of application, the decrees are binding on all employers.  If the inspection powers were not applicable to all employers, it would be impossible to verify whether some of them were covered by a given decree or acted in compliance with the conditions it imposes.

 

                   The criteria set out in Hunter, which were developed in a very different context, are not applicable.  The exercise of the powers of inspection set out in the second paragraph of s. 22(e) does not carry with it the stigmas normally associated with criminal investigations and their consequences are less draconian.  The possibility that those responsible for enforcing a statute will uncover in the course of inspections facts that point to a violation does not alter the underlying purpose behind the exercise of the powers of inspection.  The same is true when the enforcement is prompted by a complaint.  The complaint system is a practical means not only of checking whether contraventions of the ACAD have occurred, but also of deterring them.  In view of the important purpose of regulatory legislation, the need for powers of inspection and the lower expectations of privacy, a proper balance between the interests of society and the rights of individuals does not require, in addition to the legislative authority, a system of prior authorization.

 

                   The preceding analysis also applies to s. 24.1 of the Quebec Charter.

 

                   Per Sopinka, L'Heureux‑Dubé, Gonthier, McLachlin and Major JJ.:  The powers conferred on inspectors by the second paragraph of s. 22(e) ACAD are subject to the constitutional protection of s. 8  of the Canadian Charter .   The right to obtain information from the employer and employees, and the right to examine documents and make copies of them, constitute a "seizure" within the meaning of s. 8  and, although it is an administrative inspection, the right of access by inspectors to work premises is comparable to a "search" within the meaning of this section.  These searches and seizures are reasonable and do not infringe s. 8 .  The ACAD regulates certain industrial sectors through its mechanism for extending collective agreements by decree.  Its purpose is to guarantee employees working in these sectors of activity minimum working conditions.  This social objective is very important, as the employees covered by the decrees are among the most vulnerable.  In this context, the powers of inspection of the parity committees are essential to ensure implementation of the decrees, particularly as compliance with the decrees is primarily a matter of honesty and integrity on the part of employers.

 

                   The expectations of privacy which employers covered by the disputed provision may have are not very high.  The documents that may be examined or reproduced under s. 22(e) relate only to the coverage of employers by the ACAD and various decrees.  The keeping of most of these documents is in any case required by the ACAD or other legislation.  These documents are commercial in nature, and the mere possibility of seizure of information of a personal nature cannot by itself determine whether the powers conferred by the ACAD are reasonable.  The ACAD does not authorize the seizure of documents of a personal nature, and in the event that such documents would be seized, one could always apply to the courts for an appropriate remedy.  Finally, the expectations of privacy which employers may have are further reduced by the fact that the powers of inspection are exercised at the employees' workplace, even discounting the fact that the right of access conferred by the ACAD is relatively limited.

 

                   The standard of reasonableness is less strict in a matter involving the regulation of an industrial sector than it is in criminal matters.  Since the ACAD is regulatory legislation providing for administrative inspections in a regulated industrial sector, the rules in Hunter, requiring a system of prior authorization based on the existence of reasonable and probable grounds, do not apply.  Administrative inspections involving a visit to the premises without prior authorization are not unreasonable in the context of the ACAD.  The visit of the premises must be necessary in order to properly serve the regulatory objective and be rationally connected to the main purpose of the Act.  Moreover, the ACAD significantly circumscribes the manner in which the inspection will take place.  The visit must be made at a reasonable time and takes place at the employees' workplace.  The inspectors cannot freely engage in a search of the premises.  Access to the workplace is permitted solely in order to consult certain documents and obtain information from the employer and employees.  Nor does the ACAD permit inspectors to use force to gain access to the workplace.  In the event of a refusal by the employer, the inspectors can only lay charges for obstruction of an inspection.  With respect to visits to a workplace for administrative purposes, the powers conferred by the disputed provision imply only a minimum and very circumscribed intrusion in a context in which employers have a lower expectation of privacy.  It is of the very nature of an administrative inspection in a regulated industry that it takes place when there are no reasonable grounds to believe that a particular offence has been committed.  Finally, the rule in U.S. jurisprudence requiring that a warrant be obtained before undertaking an administrative inspection, a rule which has now been abandoned in practice, is not desirable here.

 

                   Furthermore, an inspection resulting from a complaint made by an employee is insufficient in itself to justify inspectors being subject to the requirements of Hunter.  There is an important distinction between having reasonable and probable grounds to believe that an offence was committed and simply having an information.  An inspection will often be necessary before it is even possible to establish the existence of reasonable grounds to believe that a breach of the law has occurred.  This is the position mandated by the fact that the ACAD covers only a regulated industrial sector.  Finally, a complaint such as the one filed here which is proved valid once the inspection is completed leads not to a penal proceeding but to a civil claim for wages.  Civil actions are clearly not contemplated in Hunter.

 

                   Reasonable and probable grounds to believe that the "inspected" employer is in fact covered by the decree are not essential to the constitutional validity of the second paragraph of s. 22(e).  Even if the powers conferred by that paragraph may potentially be exercised against all employers and not merely those subject to a decree, these powers are not unreasonable.  All employers, as well as all employees, come within the ambit of the ACAD, because it is the nature of the work done by an employee and not the employer's type of business which matters in determining whether they are subject to the application of the decrees.  In view of the particular scheme of the ACAD, inspectors must have the means of determining whether a given employer is in fact subject to a decree.   Such a determination is sometimes difficult without prior inspection given the technical nature of the provisions for the application of decrees.  In addition, it should be assumed that, because of their particular expertise on a parity committee, inspectors will, in most cases, conduct inspections at the premises of employers which they suspect are subject to a decree.  In this way, not only will abuses be avoided but infringements of reasonable expectations of privacy will be minimal.

 

                   The analytical approach and the tests developed in relation to s. 8  of the Canadian Charter  apply equally to s. 24.1 of the Quebec Charter.  According to this analysis, the second paragraph of s. 22(e) does not infringe s. 24.1.

 

                   The request for the production of documents provided for in the fourth paragraph of s. 22(e) constitutes a "seizure" within the meaning of s. 24.1 of the Quebec Charter, but this seizure is reasonable and does not infringe s. 24.1.  The fourth paragraph places adequate limits on the documents of which the inspectors have the power to request consultation or production.

 

Cases Cited

 

By La Forest J.

 

                   Distinguished: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; referred to: R. v. Dyment, [1988] 2 S.C.R. 417; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; Quebec (Construction Industry Commission) v. M.U.C.T.C., [1986] 2 S.C.R. 327.

 

By L'Heureux‑Dubé J.

 

                   Distinguished:  Hunter v. Southam Inc., [1984] 2 S.C.R. 145, aff'g (1983), 147 D.L.R. (3d) 420, rev'g (1982), 136 D.L.R. (3d) 133; referred to: R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; Ontario Chrysler (1977) Ltd. v. Ontario (Director of the Consumer Protection Division of the Ministry of Consumer & Commercial Relations) (1990), 67 D.L.R. (4th) 148; Johnson v. Ontario (Minister of Revenue) (1990), 75 O.R. (2d) 558; Comité paritaire de l'industrie du meuble v. Métal par Dimension Ltée, [1989] R.J.Q. 1442; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Dyment, [1988] 2 S.C.R. 417; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Dersch, [1993] 3 S.C.R. 768; Stelco Inc. v. Canada (Attorney General), [1990] 1 S.C.R. 617; Re Belgoma Transportation Ltd. and Director of Employment Standards (1985), 20 D.L.R. (4th) 156; R. v. Quesnel (1985), 24 C.C.C. (3d) 78, leave to appeal refused, [1986] 1 S.C.R. xiii; Bertram S. Miller Ltd. v. R., [1986] 3 F.C. 291; Chabot v. Manitoba Horse Racing Commission, [1987] 1 W.W.R. 149, leave to appeal refused, [1987] 1 S.C.R. xi; R. v. Bichel, [1986] 5 W.W.R. 261; R. v. J.M.G. (1986), 29 C.C.C. (3d) 455, leave to appeal refused, [1987] 1 S.C.R. ix; 143471 Canada Inc. v. Quebec (Attorney General), [1994] 2 S.C.R. 339; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; R. v. Keegstra, [1990] 3 S.C.R. 697; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; R. v. Seaboyer, [1991] 2 S.C.R. 577; Young v. Young, [1993] 4 S.C.R. 3; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Katz v. United States, 389 U.S. 347 (1967); Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967); See v. City of Seattle, 387 U.S. 541 (1967); Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970); United States v. Biswell, 406 U.S. 311 (1972); Marshall v. Barlow's Inc., 436 U.S. 307 (1978); Donovan v. Dewey, 452 U.S. 594 (1981); New York v. Burger, 482 U.S. 691 (1987); Quebec (Construction Industry Commission) v. M.U.C.T.C., [1986] 2 S.C.R. 327; Comité Paritaire de l'Industrie de l'Imprimerie de Montréal et du District v. Dominion Blank Book Co., [1944] S.C.R. 213; Laiterie Perrette Ltée v. Comité paritaire de l'industrie de l'automobile de Montréal et du district, [1988] R.J.Q. 76; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790.

 

Statutes and Regulations Cited

 

Act respecting Collective Agreement Decrees, R.S.Q., c. D‑2, ss. 1(f), (g), 2, 11, 14, 16, 22(a) [am. 1984, c. 45, s. 15], 22(e) [idem; am. 1986, c. 95, s. 128], 24, 33 [am. 1984, c. 45, s. 24].

 

Act respecting Labour Standards, R.S.Q., c. N‑1.1.

 

Act respecting Occupational Health and Safety, R.S.Q., c. S‑2.1.

 

Act respecting the Ministère du Revenu, R.S.Q., c. M‑31, s. 34 [am. 1983, c. 43, s. 7; idem c. 49, s. 40; am. 1991, c. 67, s. 575].

 

Act to amend Various Legislation respecting Labour Relations, S.Q. 1984, c. 45, s. 35.

 

Canadian Charter of Rights and Freedoms , ss. 1 , 8 , 33 .

 

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 8, 24.1 [en. 1982, c. 61, s. 7].

 

Code of Penal Procedure, R.S.Q., c. C‑25.1, ss. 95 et seq. [en. 1987, c. 96].

 

Decree respecting the Men's and Boys' Shirt Industry, R.R.Q. 1981, c. D‑2, r. 11, ss. 1.01 [repl. (1984) 116 O.G. II 1334, s. 1 ], 1.02, 6.01 [am. idem, s. 4].

 

Decree respecting the Women's Clothing Industry, R.R.Q. 1981, c. D‑2, r. 26, ss. 2.02 [repl. (1989) 121 O.G. II 2329, s. 2; am. (1992) 124 O.G. II 4634, s. 3], 2.04 [am. (1989) 121 O.G. II 2329, s. 3; am. (1992) 124 O.G. II 4634, s. 5].

 

Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .), s. 230 .

 

Labour Code, R.S.Q., c. C‑27.

 

Regulation respecting a Registration System or the Keeping of a Register, R.R.Q. 1981, c. N‑1.1, r. 6, s. 1.

 

Summary Convictions Act, R.S.Q., c. P‑15 [repl. 1987, c. 96, s. 374], s. 8.

 

Unemployment Insurance Act, R.S.C., 1985, c. U‑1, s. 58 [am. 1991, c. 49, s. 227].

 

United States Constitution, Fourth Amendment.

 

Authors Cited

 

Angers, Lucie.  "À la recherche d'une protection efficace contre les inspections abusives de l'État:  la Charte québécoise, la Charte canadienne  et le Bill of Rights américain" (1986), 27 C. de D. 723.

 

Maybank, Robert C.  "Constitutional requirements for administrative warrants in Canada and the United States:  Opposite trends?"  (1989), 39 U.T.L.J. 55.

 

                   APPEAL from a judgment of the Quebec Court of Appeal, [1992] R.J.Q. 1743, 75 C.C.C. (3d) 367, 49 Q.A.C. 81, 10 C.R.R. (2d) 335, reversing a judgment of the Superior Court, [1989] R.J.Q. 1575, affirming a judgment of the Court of Québec, J.E. 89‑227, D.T.E. 89T‑80, declaring the respondents guilty of offences under s. 33 of the Act respecting Collective Agreement Decrees.  Appeal allowed.

 

                   Michelle LeFrançois, for the appellant the Comité paritaire de l'industrie de la chemise.

 

                   Monique Rousseau and Gilles Laporte, for the appellant the Attorney General of Quebec.

 

                   Jean Dagenais, Avrum P. Orenstein and Susan Orenstein Little, for the respondents.

 

                   Leah Price, for the intervener the Attorney General for Ontario.

 

                   Thomson Irvine, for the intervener the Attorney General for Saskatchewan.

 

                   Robert C. Maybank, for the intervener the Attorney General for Alberta.

 

                   François Beauvais and Diane Fortier, for the intervener the Association des comités paritaires du Québec Inc.

 

                   English version of the judgment of Lamer C.J., and La Forest, Sopinka, Cory, McLachlin and Iacobucci JJ. delivered by

 

 

 

 

 

                   La Forest J. ‑‑ I have had the advantage of reading the reasons of my colleague L'Heureux‑Dubé J. and find it unnecessary to repeat the facts and judicial history.  Although I would dispose of the appeal in the manner she proposes, I consider it advisable to write my own reasons.

 

                   The appeal in this Court is limited to the validity of the second paragraph of s. 22(e) of the Act respecting Collective Agreement Decrees, R.S.Q., c. D‑2 (hereinafter the "Act"), in light of s. 8  of the Canadian Charter of Rights and Freedoms  and s. 24.1 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C‑12.  The following analysis, though based on s. 8  of the Canadian Charter , also applies to s. 24.1 of the Quebec Charter.  The second paragraph of s. 22(e) of the Act provides:

 

                   The general manager, the secretary and any inspector may, as of right and at any reasonable time, examine the registration system, the compulsory register and the pay‑list of any employer, take copies or extracts therefrom, verify as regards any employer and any employee the rate of wage, duration of work, apprenticeship system and observance of the other provisions of the decree; require, even under oath and privately, from any employer or employee, even at the place of work, all information deemed necessary, and, such information having been written down, exact the signature of the person concerned;

 

 

                   These powers of inspection, the exercise of which presupposes a visit to the premises, entail the consultation and copying of specific documents (the registration system, compulsory register and pay‑list), the verification of certain working conditions (wage rate, duration of work, apprenticeship system, and so on) and the collecting of information.  The issue is whether these powers are contemplated by s. 8  of the Charter , and, if so, whether they are reasonable having regard to any expectations of privacy the respondents may have.

 

Are the Powers of Inspection Contemplated by Section 8  of the Charter ?

 

                   The question whether the power to make copies of documents specifically mentioned in the provision comes within the ambit of s. 8  of the Charter  can be disposed of at once.  In light of the definition I gave in R. v. Dyment, [1988] 2 S.C.R. 417, and restated in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, and R. v. Colarusso, [1994] 1 S.C.R. 20, it is clear that the second paragraph of s. 22(e) of the Act authorizes a "seizure".  This power is analogous to that of requiring documents to be produced, which this Court has so characterized, in particular in Thomson Newspapers, supra, and R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627.

 

                   The characterization of the other inspection powers set out in the second paragraph of s. 22(e) of the Act is somewhat more subtle.  The term "perquisition" referred to in the French version of s. 8  of the Charter  ‑‑ "search" in the English version ‑‑ is at least in its ordinary sense reserved for investigations of a criminal nature.  Lucie Angers, in "À la recherche d'une protection efficace contre les inspections abusives de l'État:  la Charte québecoise, la Charte canadienne  et le Bill of Rights américain" (1986), 27 C. de D. 723, distinguishes an inspection from a search as follows (at pp. 727‑28):

 

[translation]  An inspection is characterized by a visit to determine whether there is compliance with a given statute.  The basic intent is not to uncover a breach of the Act:  the purpose is rather to protect the public.  On the other hand, if the inspector enters the establishment because he has reasonable grounds to believe that there has been a breach of the Act, this is no longer an inspection but a search, as the intent is then essentially to see if those reasonable grounds are justified and to seize anything which may serve as proof of the offence.

 

                   The visit to the premises, which is the foundation of the other powers set out in the second paragraph of s. 22(e) of the Act, is not fortuitous.  The legislature itself has recognized its importance, by enacting a separate paragraph for the production of documents.  The evidence shows that in the vast majority of cases the inspectors prefer to visit employers and employees rather than require the production of documents, and for good reason.  It is by visiting the premises that the parity committees can realistically carry out the mandate they are given by the Act ‑‑ administering the decrees ‑‑ by checking the nature of the work done and by obtaining information from those concerned as to whether working conditions are being observed.  While the inspectors do not have the option of "searching", they can nevertheless examine the work environment and direct the inspection accordingly.  From this standpoint, inspections and searches have a common basis:  an active quest for the truth.

 

                   Section 8  of the Charter , which guarantees protection against unreasonable search and seizure, must be construed to carry out its purpose.  In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court noted that the purpose of s. 8  was to protect the individual's reasonable expectations of privacy from unjustified state intrusion.  Despite its less invasive nature, inspection is unquestionably an "intrusion".  An arbitrary demarcation line drawn according to the degree of the intrusion, for purposes of determining whether the powers authorizing the state's actions are within the scope of the constitutional guarantee, is not desirable at this stage.  It would be a matter of concern if the constitutional validity of an intrusion of the kind at issue in this appeal were to be placed beyond the reach of judicial review.  In the circumstances, I am of the view that the inspection powers set out in the second paragraph of s. 22(e) of the Act may be assimilated to a search within the meaning of s. 8  of the Charter .  Naturally, the scope of the constitutional guarantee may vary depending on whether a search or an inspection is involved.  That is what I now propose to consider.

 

Are the Powers of Inspection Reasonable?

 

                   On the issue of determining the reasonableness of the powers of inspection, the respondents simply disputed the application of the second paragraph of s. 22(e) of the Act to all employers, conceding their validity with respect to professional employers or employers that inspectors have reasonable grounds to believe are subject to a decree.  That is in essence what the Court of Appeal decided:  [1992] R.J.Q. 1743, 75 C.C.C. (3d) 367, 49 Q.A.C. 81, 10 C.R.R. (2d) 335.  The appellants and the interveners, however, raised the more general issue of the legality of powers of inspection without prior authorization in light of s. 8  of the Charter .  Although this Court has never expressly decided the point, I referred to it in Thomson Newspapers, supra, at pp. 506‑7:

 

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.  [Emphasis added.]

 

                   The federal and provincial legislatures have, in a number of statutes, included powers of inspection similar to those whose validity is challenged by the respondents in the present case.  These statutes deal with areas as diverse as health, safety, the environment, taxation and labour.  The common thread is found in their underlying purpose:  harmonizing social relations by requiring observance of standards reflecting the sometimes delicate balance between individual rights and the interests of society.  Inspection ‑‑ or the threat of it ‑‑ especially if it is done without notice, is a practical means of encouraging such observance.  The Act respecting Collective Agreement Decrees takes this approach.  Its underlying purpose is to ensure decent working conditions in certain sectors of industry (textiles, clothing, shoes, furniture, and so on) where employees are among the most vulnerable.  The need to include powers of inspection in the Act is readily understandable, especially since compliance with the standards imposed by the decrees depends first and foremost on employer honesty.  The statistics indicate the routine, not to say widespread, use of such powers:  in 1991, 105 inspectors, responsible for enforcing some thirty decrees covering over 140,000 employees and 16,000 employers, carried out over 53,000 inspections.

 

                   While the importance of the purpose and need of the powers of inspection cannot be doubted, they must still be balanced against the individual's expectations of privacy.  I note in passing that the wording of s. 8  of the Charter  does not prohibit inspections without prior authorization.  It simply imposes a requirement of "reasonableness".  Consequently, since the Fourth Amendment to the United States Constitution expressly contemplates use of a warrant, the rules developed by the American courts should be applied with caution.

 

                   This Court has pointed out on several occasions that the scope of a constitutional guarantee, like the balancing of the collective and individual rights underlying it, varies with the context.  In Quebec, as everywhere else in the country, employers are subject to strict regulations governing taxation, social affairs, health, safety and labour standards:  see in particular the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .); the Act respecting the Ministère du Revenu, R.S.Q., c. M‑31; the Unemployment Insurance Act, R.S.C., 1985, c. U‑1; the Act respecting Occupational Health and Safety, R.S.Q., c. S‑2.1; the Act respecting Labour Standards, R.S.Q., c. N‑1.1; the Labour Code, R.S.Q., c. C‑27, as well as the numerous regulations adopted thereunder.  The Act respecting Collective Agreement Decrees falls into the last category.  Through a mechanism extending collective agreements, it provides for the imposition of previously negotiated working conditions on a given industry.  For example, the Decree respecting the Men's and Boys' Shirt Industry, R.R.Q. 1981, c. D‑2, r. 11, which the appellant parity committee is responsible for enforcing, requires employers subject to it to observe conditions regarding the normal work week, rest periods, overtime, wages, seniority, social security, annual leave, holidays, absences, individual contracts and work at home or by the piece.

 

                   In a context in which their occupations are extensively regulated by the state, the reasonable expectations of privacy employers may have with respect to documents whose content is specifically provided for by the Act, or the premises where an activity subject to specific standards is conducted, are considerably lower.  I made this point in Thomson Newspapers, supra, where I wrote (at p. 507):

 

                   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.

 

                   It is thus impossible, without further qualification, to apply the strict guarantees set out in Hunter v. Southam Inc., supra, which were developed in a very different context.  The underlying purpose of inspection is to ensure that a regulatory statute is being complied with.  It is often accompanied by an information aspect designed to promote the interests of those on whose behalf the statute was enacted.  The exercise of powers of inspection does not carry with it the stigmas normally associated with criminal investigations and their consequences are less draconian.  While regulatory statutes incidentally provide for offences, they are enacted primarily to encourage compliance.  It may be that in the course of inspections those responsible for enforcing a statute will uncover facts that point to a violation, but this possibility does not alter the underlying purpose behind the exercise of the powers of inspection.  The same is true when the enforcement is prompted by a complaint.  Such a situation is obviously at variance with the routine nature of an inspection.  However, a complaint system is often provided for by the legislature itself as it is a practical means not only of checking whether contraventions of the legislation have occurred but also of deterring them.

 

                   The inspection powers set out in the second paragraph of s. 22(e) of the Act enable the parity committees to monitor compliance by employers with the various decrees and observance of the working conditions they impose.  The scope of the regulatory offences enacted in the Act is limited; the corresponding penalties, exclusively in the form of fines, are very modest.  When an inspection reveals a breach of a decree, it generally leads to a civil action to claim wages, brought by the parity committee on behalf of the aggrieved employee pursuant to s. 22(a) of the Act.  It is significant that such remedy, which lies at the core of the system set up by the legislature, appears in the same provision as the inspection powers.  Wages are unquestionably the most important condition for workers covered by the decrees.  In 1991, inspectors recovered over $2,400,000 in wages through the use of the powers set out in s. 22 of the Act.  It is clear that the Court did not have such enforcement measures in mind when it postulated the system of prior authorization in Hunter v. Southam Inc., supra.  Furthermore, parity committees are specifically required in the course of their duties to consider complaints submitted to them by an employer or an employee, and no evidence is allowed to show that an action or prosecution was brought as a result.  For 1991 alone there were 9,357 inspections resulting from complaints by employees.  It would be undesirable to limit the use of the powers of inspection when they follow a complaint, as they are all the more necessary in such cases.

 

                   In view of the important purpose of regulatory legislation, the need for powers of inspection, and the lower expectations of privacy, a proper balance between the interests of society and the rights of individuals does not require, in addition to the legislative authority, a system of prior authorization.  Of course the particular limits placed on the inspection scheme must, so far as possible, protect the right to privacy of the individuals affected.  In this regard the respondents objected to the scope of the second paragraph of s. 22(e) of the Act, which makes all employers subject to the inspection powers.  They argued that the latter should only be exercised where there are reasonable grounds to believe that the employers are subject to a decree.  This argument, which is the crux of the dispute between the parties, must be rejected.

 

                   The Act applies to all employers.  Its purpose in distinguishing "employers" from "professional employers", namely those who usually have employees in their employ for any kind of work which is the subject of a decree, is solely to impose additional duties on the latter ‑‑ the keeping of various records, submission of a monthly report to the parity committee, joint and several liability with subcontractors for the payment of wages, and so on; but this distinction in no way alters the scope of the decrees, which are binding on all employers within the limits of their respective areas of application.  That is why an employer who has one of his employees do work of the kind contemplated in a decree must observe the conditions it imposes:  see Quebec (Construction Industry Commission) v. M.U.C.T.C., [1986] 2 S.C.R. 327.  In practice an employer may be subject to several decrees; he may even be subject to a decree in respect of a marginal or indeed exceptional part of his activities.  Section 1.02 of the Decree respecting the Men's and Boys' Shirt Industry makes this quite clear:

 

1.02.  The work contemplated by this Decree includes the work of all persons performing any or many of the operations being part of, related to or connected with the manufacturing or producing of the above described shirts and garments, whether the said operations are defined or not in the present Decree, whether said operations are performed completely or in part by the same employer or by several employers, whether they are performed completely or in part in one or several trade plants, private, industrial, commercial or other establishments.

 

                   It is of little consequence whether such operations constitute the principal business of the employer or are accessory or complementary to any other business or enterprise and whether the said shirts and garments are manufactured or produced for the purpose of sale to other consumers or for the exclusive use of the employer.  [Emphasis added.]

 

                   The appellants and the intervener, the Association des comités paritaires du Québec Inc., also noted the difficulties associated with determining whether employers are subject to the various decrees, as a result of the technical definition of their scope.  The examples cited by my colleague speak for themselves.  In the present case the respondents maintained that they were not covered by the Decree respecting the Men's and Boys' Shirt Industry; but how could the inspectors realistically have determined whether they were covered without an inspection, especially since the evidence indicated that the respondent Sélection Milton was in fact displaying boys' shirts in its windows?  If the inspection powers were not applicable to all employers, it would be impossible to verify whether some of them were covered by a given decree or acted in compliance with the conditions it imposes.

 

                   The respondents limited their arguments to this aspect of the inspection scheme.  However, it is worth looking briefly at the other components.  The second paragraph of s. 22(e) of the Act does not specifically identify the place where a visit may be made, except to say that it must be made at a reasonable time.  The section simply mentions that the powers may be exercised "even at the place of work" of the employees.  Depending on the nature of the industry, it is possible that certain inspections may take place at the home of the employer or of the employees, when it coincides with their workplace.  That possibility does not, however, make the inspection powers less reasonable.  The employees covered by the decrees are among the most vulnerable and the Act was passed for their protection.  What matters, in the end, is that the powers of inspection are sufficiently circumscribed to attain their purpose; here they are so circumscribed by the nature of the persons affected:  the employer and employee.  It is worth mentioning that the Act does not authorize inspectors to force an entry if the employer refuses to admit them.  They can only bring proceedings for obstruction:  the recalcitrant employer, like the respondents, will then be ordered to pay a fine.

 

                   The second paragraph of s. 22(e) of the Act authorizes the examination and copying of the registration system, compulsory register and pay‑list.  The keeping of these documents is specifically contemplated by the Act in the case of professional employers.  These documents accordingly give rise to limited expectations of privacy.  Inspectors are not authorized to make copies of any other documents.  The powers to check certain information (wage rate, duration of work and various employment conditions) and to require information deemed necessary seem to me to be essential to the carrying out of the parity committees' function.  It goes without saying that these powers must be exercised in accordance with the purpose of the Act and the inspectors are required to act in complete good faith.  It will always be possible to challenge abuses; but that does not alter the validity of the legislative scheme and the balance it strikes between the interests of society and the individual's right to privacy.

 

                   For these reasons I would allow the appeal, set aside the decision of the Court of Appeal and affirm the convictions.  The first constitutional question should be answered in the negative.  It is unnecessary to answer the second constitutional question.

 

                   English version of the judgment of L'Heureux-Dubé, Sopinka, Gonthier, McLachlin and Major JJ. delivered by

 

                   L'Heureux‑Dubé J. ‑‑ This appeal raises the constitutionality of the powers of inspection of an agency responsible for implementing a government decree in a regulated industrial sector.  In particular, the question is whether the second paragraph of s. 22(e) of the Act respecting Collective Agreement Decrees, R.S.Q., c. D‑2 (hereinafter the "ACAD"), giving the appellant Comité paritaire powers to inspect and to require the production of documents, is a breach of s. 8  of the Canadian Charter of Rights and Freedoms  (hereinafter the "Charter ").

 

                   Judgment was rendered from the bench on January 27, 1994 and the following answers given to the constitutional questions framed by the Chief Justice:

 

                   The Court forthwith allows the appeal, sets aside the judgment of the Court of Appeal and restores the judgment rendered by the Superior Court of criminal jurisdiction, the whole with costs against the respondents.  The constitutional questions are answered as follows:

 

1.Are the provisions of s. 22(e) of An Act respecting Collective Agreement Decrees, R.S.Q., c. D‑2, which confer powers of inspection inconsistent with s. 8  of the Canadian Charter of Rights and Freedoms ?

 

Answer:No.

 

2.If the answer to question 1 is in the affirmative, are these provisions justified pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

 

Answer:In view of the answer to the first question, the second question does not arise.

 

Reasons to follow.

 

I ‑  Facts

 

                   The appellant Comité paritaire was created pursuant to the Decree respecting the Men's and Boys' Shirt Industry, R.R.Q. 1981, c. D‑2, r. 11, and is responsible for the carrying out of that Decree.  In January 1988, following a complaint, the appellant was informed that a certain Malouin, a woman from Sherbrooke, had given work cutting out shirts with the brand of the respondent Sélection Milton to employees whom she had not paid.  On February 2, 1988 two inspectors from the Comité paritaire de l'industrie de la chemise came to the respondent's premises to determine whether the Sherbrooke woman was a subcontractor and whether the respondent could, accordingly, be held jointly and severally liable together with that subcontractor for the payment of wages as provided for in s. 14 ACAD.

 

                   When they arrived at the respondent's premises, the inspectors noticed in the display window shirts similar to those made at Miss Malouin's premises.  Relying on s. 22(e) ACAD, they asked for a list of the shirt cutting subcontracts given out by the respondent.  The respondent Jonathan Potash, representing Sélection Milton, refused.  On February 24, 1988 the inspectors renewed their initial request to be allowed to see the respondent's pay register and visit its workshop in order to meet with the employees.  The respondent Jonathan Potash again refused to grant these requests on the ground that the inspectors had no search warrant.  Three charges were accordingly laid against the respondents pursuant to s. 33 ACAD, alleging that they had refused:

 

 

(1)on February 2, 1988, to provide inspectors with documents required to verify the implementation of the ACAD and the Decree respecting the Men's and Boys' Shirt Industry, namely the list of subcontractors manufacturing shirts for the employer;

 

(2)on February 24, 1988, to allow inspectors access to the workplace, namely to visit the workshop; and

 

(3)on February 24, 1988, to provide inspectors with the information required to verify the implementation of the Decree respecting the Men's and Boys' Shirt Industry, namely the employer's pay register and list of subcontractors.

 

                   In the lower courts and in this Court it was not disputed that the inspectors' requests fell within s. 22(e) ACAD and that any employer commits an offence if he refuses to provide the information requested under that provision.  However, the respondents alleged that ss. 22(e) and 33 ACAD infringe upon ss. 8 and 24.1 of the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 (hereinafter the "Quebec Charter"), and s. 8  of the Charter  while the appellants, the Comité paritaire de l'industrie de la chemise and the Attorney General of Quebec, argued that they do not.

 

                   At trial on December 21, 1988, the Court of Quebec (Criminal and Penal Division) concluded that ss. 22(e) and 33 ACAD did not infringe either ss. 8 and 24.1 of the Quebec Charter or s. 8  of the Charter  and found the respondents guilty of the three offences:  J.E. 89‑227, D.T.E. 89T‑80.  On appeal by trial de novo, the Superior Court, Criminal Division, upheld the judgment at trial, dismissing the appeal on May 12, 1989:  [1989] R.J.Q. 1575.  Finally, on June 3 1992, the Quebec Court of Appeal unanimously allowed the respondents' appeal, rendered a verdict of not guilty and declared the second paragraph of s. 22(e) ACAD of no force or effect as being inconsistent with ss. 24.1 of the Quebec Charter and 8 of the Charter :  [1992] R.J.Q. 1743, 75 C.C.C. (3d) 367, 49 Q.A.C. 81, 10 C.R.R. (2d) 335.  It is this last judgment which is the subject of the present appeal.

 

II -  Applicable Legislative and Constitutional Provisions

 

Act respecting Collective Agreement Decrees, R.S.Q., c. D‑2

 

1.  [Definitions]  In this Act and in its application, unless the context requires otherwise, the following words and expressions have the meaning hereinafter given to them:

 

                                                                   . . .

 

(f)  "employer" includes any individual, partnership, firm or corporation who or which has work done by an employee;

 

(g)  "professional employer" means an employer who habitually has employees in his employ for any kind of work which is the object of a decree;

 

                                                                   . . .

 

2.  [Decree]  The Government may order that a collective agreement respecting any trade, industry, commerce or occupation shall also bind all the employees and employers in Québec or in a stated region of Québec, within the scope determined in such decree.

 

11.  [Matter of public order]  The provisions of the decree entail a matter of public order and shall govern and rule any work of the same nature or kind as that contemplated by the agreement, within the jurisdiction determined by the decree.

 

14.  [Joint liability]  Every professional employer contracting with a sub‑entrepreneur or a sub‑contractor, directly or through an intermediary, shall be jointly and severally responsible with such sub‑entrepreneur or sub‑contractor and any intermediary, for the payment of the wage fixed by the decree.

 

16.  [Forming of committee]  The parties to a collective agreement rendered obligatory must form a parity committee to supervise and ensure the carrying out of the decree, its amendments and renewals.

 

                                                                   . . .

 

22.  [Corporate powers]  From and after the publication of the notice contemplated in section 19, the committee shall constitute a corporation and shall have the general powers, rights and privileges appertaining to ordinary civil corporations.

 

From the mere fact of its formation, it may, as of right:

 

                                                                   . . .

 

                   (e)  [General manager, secretary, inspectors and other employees] Appoint a general manager, a secretary, inspectors and other mandataries or employees, and determine their attributions and remuneration.  Every person having the administration of the committee's funds must give security by a guarantee policy which shall be transmitted to the Minister.

 

                   [Inspection]  The general manager, the secretary and any inspector may, as of right and at any reasonable time, examine the registration system, the compulsory register and the pay‑list of any employer, take copies or extracts therefrom, verify as regards any employer and any employee the rate of wage, duration of work, apprenticeship system and observance of the other provisions of the decree; require, even under oath and privately, from any employer or employee, even at the place of work, all information deemed necessary, and, such information having been written down, exact the signature of the person concerned;

 

                   [Identification]  The general manager, the secretary or any inspector shall, on request, identify himself and produce a certificate of his capacity issued by the committee;

 

                   [Documents]  The general manager, the secretary or any inspector may also require the production of any document referred to in the second paragraph or any document relating to the application of this Act, a decree or a regulation, make a copy thereof and certify it as a true copy of the original.  The copy is admissible as proof and has the same probative value as the original;

 

                                                                   . . .

 

24.  [Complaints]  The committee shall hear and consider any written complaint from an employer or from an employee respecting the carrying out of the decree.

 

33.  [Obstruction to inspection]  Every professional employer who does not keep the compulsory registration system, register or pay‑list, every employer or employee who refuses or neglects to furnish the representatives of a committee with the information contemplated in subparagraph e of section 22, in the manner therein prescribed, or does not grant them on request, or delays to grant them, access to the place where the work is being done, to the register, to the system of registration or to pay‑list or other documents, as provided in said paragraph, or molests or hinders or insults the said representatives in the performance of their duties, or otherwise obstructs such performance, ‑‑

commits an offence and shall be liable, in addition to the costs, to a fine of $200 to $500; in the case of a subsequent offence within two years he shall be liable, in addition to the costs, to a fine of $500 to $3 000.

 

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12

 

8.  No one may enter upon the property of another or take anything therefrom without his express or implied consent.

 

24.1.  No one may be subjected to unreasonable search or seizure.

 

Canadian Charter of Rights and Freedoms 

 

                   1.  The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

                   8.  Everyone has the right to be secure against unreasonable search or seizure.

 

III ‑  Judgments

 

Court of Quebec (Criminal and Penal Division)

 

                   According to Dansereau Q.C.J., s. 8 , and, consequently, the test outlined in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, are not applicable in the context of a civil and administrative statute or inspection process.  He based his decision on the following arguments put to him by the appellants:

 

(1)Hunter v. Southam Inc. is not, unlike a search that may lead to complaints of a penal or criminal nature, applicable to an administrative inspection;

 

(2)different rules should apply to determine whether a search or seizure made in connection with an inspection pursuant to the ACAD is unreasonable; and

 

(3)the absence of a warrant does not make the inspectors' requests unreasonable, even though a refusal is subject to a fine (s. 33 ACAD).

 

                   Dansereau Q.C.J. further dismissed the argument based on s. 24.1 of the Quebec Charter.  In his opinion, the evidence showed that the purpose of the inspection was not to build an incriminating file on the respondent Sélection Milton but rather to determine whether it was jointly and severally liable with the Sherbrooke subcontractor for the payment of wages pursuant to s. 14 ACAD.  The judge agreed with the appellants' view that the powers of inspection exercised by the inspectors of the Comité paritaire are not to be compared with powers of search and seizure.  He accordingly considered that ss. 8 and 24.1 of the Quebec Charter have no application to the facts of the case at bar.

 

                   Dansereau  Q.C.J., therefore, found the respondents guilty of the three offences charged and ordered them to pay the minimum fine of $200 each, plus costs.

 

Superior Court, [1989] R.J.Q. 1575

 

                   Viau J., on an appeal by trial de novo brought by the respondents, first noted the primary purpose of the ACAD, which, he said, was to ensure compliance with minimum working conditions in certain fields of activity for the benefit of employees, not to penalize wrongful acts.  He noted that the ACAD is of public order and provides for the establishment of measures to promote its objectives.  In his view, the inspectors fulfill a function of public importance:  the powers conferred upon them are intended to allow employees to receive the wages and enjoy the other benefits to which they are entitled.

 

                   Viau J. then analysed the powers of inspectors regarding requests made pursuant to s. 22(e) ACAD, powers which he said were not comparable to those of search or seizure.  As he observed (at p. 1578), [translation] "[s]earch implies an invasion of another's property to seek actively for objects or documents" whereas [translation] "seizure assumes the taking of objects or documents out of their owner's possession".  Based on the evidence before him, Viau J. was of the opinion that there had been no intrusion into the respondent's property nor seizure of belongings at his place.

 

                   The judge went on to examine the objective sought by the inspectors, which, in his view, was not to build an incriminating file on the respondent Sélection Milton but, rather, to determine whether it was jointly and severally liable with a subcontractor for the payment of wages pursuant to s. 14 ACAD  Further, he considered that if the appellant Comité paritaire had wished to search for or seize objects, it could have made use of the provisions of s. 8 of the Summary Convictions Act, R.S.Q., c. P‑15, then in effect (since replaced by the Code of Penal Procedure, R.S.Q., c. C‑25.1, ss. 95 et seq.).

 

                   Finally, although s. 22(e) ACAD speaks of "any employer", Viau J. did not feel it was necessary to determine whether the respondents are a "professional employer" within the meaning of s. 1 (g) before concluding that the appellant Comité paritaire had the right to make an inspection.  He commented at p. 1581:

 

[translation]  The word "employer" rather than "professional employer" in s. 22(e) is not there purely by chance.  It was necessary to fully understand what was happening in a workshop before concluding that an employer was subject to the decree and so jointly and severally liable under s. 14 for payment of the wages fixed by the decree. . . .

 

                   In short, the inspection system provided for an initial stage after which it would be decided whether to proceed further.

 

                   Viau J. consequently dismissed the respondents' appeal, thus affirming their convictions and the sentences imposed by the Court of Quebec (Criminal and Penal Division).

 

Court of Appeal, [1992] R.J.Q. 1743 (Dussault and Fish JJ.A. (Monet J.A. took no part in the judgment))

 

                   Per Fish J.A., the Court of Appeal could not subscribe to the conclusion of the Superior Court, Criminal Division, that the powers specified in s. 22(e) ACAD are not comparable to powers of search and seizure.  It based this conclusion exclusively on the reasons of Wilson J. in the judgment of this Court, R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627.

 

                   In order to determine the reasonable expectations regarding the protection of documents and the workplace, Fish J.A. noted that, since the inspectors' powers are exercised in commercial premises, the invasion was less significant than if they were exercised at a person's home.  He further noted that the documents in question are business documents whose content is generally prescribed by the ACAD.  Similarly, the powers are limited, the visit must take place at a reasonable time and the inspectors must identify themselves.  So far as the information sought was concerned, however, Fish J.A. considered that the request could cover [translation] "a wide range" and that employees could be required to [translation] "provide information that the employer or the professional employer may have an interest in protecting" (p. 1749).

 

                   Noting the observations of Carthy J.A., speaking for the Ontario Court of Appeal in Ontario Chrysler (1977) Ltd. v. Ontario (Director of the Consumer Protection Division of the Ministry of Consumer & Commercial Relations) (1990), 67 D.L.R. (4th) 148, with respect to the reasonableness of the expectation, Fish J.A. considered that the infringement of the "professional employer's" right to privacy was not abusive and did not exceed its reasonable expectations.  However, Fish J.A. regarded the scope of s. 22(e) as much broader since the subsection applies to all employers.  Considering whether the reasonable expectation test was met by s. 22(e), which he considered to have a broader scope, Fish J.A. cited lengthy passages from the unanimous judgment of the Ontario Court of Appeal in Johnson v. Ontario (Minister of Revenue) (1990), 75 O.R. (2d) 558, and said (at p. 1750):

 

                   [translation]  This reasoning [in Johnson v. Ontario (Minister of Revenue)] appears to me to be quite relevant in the present case.  I am, in effect, of the view with all due respect for the contrary opinion, that the invasion of privacy authorized by s. 22(e) A.C.A.D. violates the reasonable expectation of any employer not subject to the Act.

 

                   Also I do not consider that it is justified by the purpose which the Act seeks to achieve or by the state's interest.

 

                   Of course, the imposition of and compliance with minimum employment standards for employees are important, but protection of the employees covered by the decree does not justify powers to search the premises of an employer not made subject to the decree by the legislature.

 

                   In addition, it seems to me that in order to constitute a "least intrusive method available for adequate enforcement of the regulatory scheme", the provision in the second paragraph of s. 22(e) should require reasonable and probable grounds to believe that the "inspected" employer is in fact covered by the decree.  [Emphasis in original.]

 

                   Fish J.A. noted that in Comité paritaire de l'industrie du meuble v. Métal par Dimension Ltée, [1989] R.J.Q. 1442, the Quebec Court of Appeal had taken this rule for granted, though without deciding the point.  Rather than construing s. 22(e) ACAD by reading in the reasonable grounds requirement, he [translation] "[left] it to the legislature to make the A.C.A.D. comply with the two Charters" (p. 1752).  Accordingly, in his opinion, since it does not contain a requirement of reasonable and probable grounds for undertaking an inspection, the second paragraph of s. 22(e) ACAD is in breach of s. 8  of the Charter  and s. 24.1 of the Quebec Charter.  However, he did not discuss s. 8 of the Quebec Charter.  In closing, Fish J.A. mentioned (at p. 1752) that his reasons applied only to the second paragraph of s. 22(e), and expressly refrained from making any ruling on the other parts of that subsection.

 

                   The appeal was accordingly allowed, the judgment of the Superior Court, Criminal Division, reversed, the second paragraph of s. 22(e) ACAD declared to be of no force or effect and the respondents declared not guilty of the offences charged.

 

IV ‑  Issue

 

                   As I mentioned earlier, the appeal at bar raises the constitutionality of s. 22(e) of the ACAD in light of both the Charter  and the Quebec Charter.  However, although the appellants discussed the disputed provision in light of s. 8 of the Quebec Charter (appellants' factum, at p. 39, paras. 89‑91), the Court of Appeal judgment is silent on this point and neither the respondents nor the interveners made any reference to it.  I will, therefore, refrain from discussing s. 8 of the Quebec Charter, as I consider that the Court does not have to decide this question.

 

                   In his reasons (at p. 1751) Fish J.A., though he did not analyse s. 24.1 of the Quebec Charter in depth, considered that it had been infringed by the second paragraph of s. 22(e) ACAD.  The parties, for their part, referred to s. 24.1 in their statement of the issues, and the appellants referred to it again when they addressed the justification under s. 1  of the Charter  (appellants' factum, at pp. 5, para. 12, and 38, para. 88; and respondents' factum, at p. 1, para. 3).  However, the respondents contended that, if the Court were to find that the fourth paragraph of s. 22(e) ACAD was the subject of an exception adopted in accordance with s. 33  of the Charter , its validity would nonetheless have to be examined in light of s. 24.1 of the Quebec Charter (appellants' factum, at p. 17, para. 52).  In these circumstances, despite the judgment of the Court of Appeal and the fact that the parties and the interveners did not raise s. 24.1 of the Quebec Charter in their oral arguments, I shall nonetheless address that provision.

 

                   Additionally, at the time the offences were committed the fourth paragraph of s. 22(e) ACAD was the subject of an exception to s. 8  of the Charter , adopted in accordance with its s. 33 .  This fourth paragraph was inserted in the ACAD by the Act to amend Various Legislation respecting Labour Relations, S.Q. 1984, c. 45, s. 35 of which expressly provided for an exception to ss. 2  and 7  to 15  of the Charter .  There is no doubt as to the validity of such an exception, since it has been recognized by this Court (Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 741‑42 (per curiam)).  Accordingly, although the respondents argued that the fourth paragraph of s. 22(e) is in breach of s. 8  of the Charter , the Court does not have to consider this point in view of the constitutionally valid exception.  However, the validity of this fourth paragraph in light of s. 24.1 of the Quebec Charter will have to be considered.

 

                   It is thus only necessary to answer the following questions:

 

(1)Does the second paragraph of s. 22(e) ACAD infringe s. 8  of the Charter ?

 

(2)If so, can the second paragraph of s. 22(e) be justified under s. 1  of the Charter ?

 

(3)Do the second and fourth paragraphs of s. 22(e) ACAD infringe s. 24.1 of the Quebec Charter?

 

                   I would note that, in view of the answer given by the Court to the first question at the hearing, it will not be necessary to answer the second.

 

V ‑  Analysis

 

                   I will first consider whether s. 8  of the Charter  applies to the powers of inspection at issue here.  If necessary, I will then examine their reasonableness.  In closing, I will determine whether s. 24.1 of the Quebec Charter is applicable.

 

A.Powers of Inspection under the Second Paragraph of Section 22(e) ACAD and Applicability of Section 8  of the Charter 

 

                   Under the second paragraph of s. 22(e) ACAD, the inspectors of the appellant Comité paritaire can, at the employees' workplace:

 

(1)examine the registration system, the compulsory register and the pay‑list and take copies thereof;

 

(2)verify as regards any employer and any employee the rate of wage, duration of work, apprenticeship system and observance of the other provisions of the Decree respecting the Men's and Boys' Shirt Industry; and

 

(3)require the employer or his employees to provide information deemed necessary (even under oath and signed).

 

                   Various positions were argued in this Court as to the application of s. 8  of the Charter  to the powers mentioned in the second paragraph of s. 22(e) ACAD.  The appellants, the interveners the Attorneys General of Ontario and Saskatchewan and the Association des comités paritaires du Québec Inc. argued that none of the powers mentioned in the second paragraph of s. 22(e) of the ACAD can be compared to searches or seizures because an employer could not have a significant expectation of privacy in respect of documents which the law requires to be kept.  The respondents argued, on the contrary, that such powers authorize a significant invasion and are thus covered by the protection of s. 8  of the Charter .  Finally, the intervener the Attorney General of Alberta argued that the mere power to require information deemed necessary from the employer or his employees does not fall within the scope of s. 8  of the Charter .  However, according to this intervener, should there be an entry into the workplace, s. 8  applies as a reasonable expectation of privacy then exists on the part of the employer.

 

                   As a first step, the question, thus, is whether the powers of inspection conferred by the second paragraph of s. 22(e) ACAD constitute a "search or seizure" within the meaning of s. 8  of the Charter .

 

                   First, the second paragraph of s. 22(e) permits the inspectors to examine various documents of the employer (registration system, compulsory register and pay‑list), and take copies thereof, and also to verify various information with the employer (rate of wage, duration of work, apprenticeship system, observance of the other provisions of the decree governing the industry) and to require other information deemed necessary.

 

                   In R. v. Dyment, [1988] 2 S.C.R. 417, La Forest J. stated (at p. 431):

 

It should be observed, however, that s. 8  of the Charter  does not protect only against searches, or against seizures made in connection with searches.  It protects against searches or seizures. . . .

 

                   As I see it, 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.  [Emphasis added.]

 

This definition was reiterated by La Forest J. in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 505, and R. v. Colarusso, [1994] 1 S.C.R. 20, at p. 54.

 

                   One analytical approach is to look first at the character of the powers provided for in the second paragraph of s. 22(e) ACAD in order to determine whether they are in the nature of a "search or seizure", in that the inspectors may take away something belonging to the employer without the employer's consent.  (See, inter alia: Thomson Newspapers, supra, at pp. 505 (per La Forest J.) and 589‑92 (per L'Heureux‑Dubé J.).)  A second approach consists in looking at the expectation of privacy at this stage, in order to decide whether the disputed provision confers powers of "search or seizure" on the State.  (See, inter alia, R. v. Hufsky, [1988] 1 S.C.R. 621, at p. 638 (per Le Dain J.); R. v. Ladouceur, [1990] 1 S.C.R. 1257, at pp. 1277‑78 (per Cory J.); McKinlay Transport, supra, at p. 642 (per Wilson J.); R. v. Plant, [1993] 3 S.C.R. 281, at pp. 291‑96 (per Sopinka J.); and R. v. Dersch, [1993] 3 S.C.R. 768, at pp. 777‑78 (per Major J.).)  I opt for the first approach here, and will leave the second for the stage when the unreasonableness of the provision is considered.

 

                   The powers set out in the second paragraph of s. 22(e) ACAD authorize the inspectors to take away something belonging to an employer without the employer's consent (inter alia, the registration system, the compulsory register and the pay‑list).  In this respect I see no difference between the making of a photocopy and the seizure of the original.  In my view, this is a "seizure" within the meaning of Dyment.

 

                   This Court has already held that subpoenae duces tecum constitute "seizures" for the purposes of s. 8  of the Charter  (Thomson Newspapers, supra, at pp. 442 (per Lamer J.), 494 (per Wilson J.), 505 (per La Forest J.) and 592 (per L'Heureux‑Dubé J.); McKinlay Transport, supra, at p. 642 (per Wilson J.); and Stelco Inc. v. Canada (Attorney General), [1990] 1 S.C.R. 617).  In the appeal at bar the powers conferred by the ACAD are wider than a mere request for production of documents:  the second paragraph of s. 22(e) ACAD gives inspectors the right to obtain information from the employer and employees and the right to require production of documents and make copies of them.  In short, this is a true "seizure" within the meaning of s. 8  of the Charter .

 

                   Secondly, the second paragraph of s. 22(e) ACAD gives the inspectors a right of access to work premises.  It is worth noting that several provincial courts of appeal have, on various occasions, held that such powers, characterized as "administrative inspections", were comparable to "searches or seizures" within the meaning of s. 8  of the Charter  (see: Re Belgoma Transportation Ltd. and Director of Employment Standards (1985), 20 D.L.R. (4th) 156 (Ont. C.A.), at p. 158 (per MacKinnon A.C.J.O.); R. v. Quesnel (1985), 24 C.C.C. (3d) 78 (Ont. C.A.), at p. 83 (per Finlayson J.A.), leave to appeal refused by the Supreme Court of Canada on May 22, 1986, [1986] 1 S.C.R. xiii; Bertram S. Miller Ltd. v. R., [1986] 3 F.C. 291 (C.A.), at pp. 324 (per Ryan J.A.) and 339‑40 (per Hugessen J.A.); Chabot v. Manitoba Horse Racing Commission, [1987] 1 W.W.R. 149 (Man. C.A.), at pp. 154‑55 (per Huband J.A.), leave to appeal refused by the Supreme Court of Canada on June 25, 1987, [1987] 1 S.C.R. xi; R. v. Bichel, [1986] 5 W.W.R. 261 (B.C.C.A.), at p. 265 (per Macfarlane J.A.); Ontario Chrysler (1977) Ltd. v. Ontario (Director of the Consumer Protection Division of the Ministry of Consumer & Commercial Relations), supra, at p. 150; and Johnson v. Ontario (Minister of Revenue), supra, at pp. 561‑62 (per Arbour J.A.)).  Such a position does not a priori place administrative and regulatory control outside the ambit of the Charter .

 

                   The Supreme Court of Canada has not yet decided the question of the powers to visit premises, which are conferred under a regulatory legislation and are designed to regulate an industrial sector, such as the ACAD.  Obviously, these powers do not constitute a "seizure", since nothing is "taken" by the inspectors.  However, in view of the fact that the purpose of s. 8  of the Charter  is to protect individuals against unwarranted intrusions by the State (see, inter alia, Hunter v. Southam Inc., supra, at pp. 159‑60 (per Dickson J. (as he then was)); Dyment, supra, at pp. 427 and 430 (per La Forest J.)), I am of the opinion that the right of access to work premises by the inspectors is a power of inspection which may be termed a "perquisition" (search of a place) within the meaning of s. 8   of the Charter .

 

                   It cannot be considered a "fouille" (search of a person), since the powers of access to work premises contemplate a physical place.  In Southam Inc. v. Hunter (1982), 136 D.L.R. (3d) 133 (appeal allowed by the Alberta Court of Appeal at (1983), 147 D.L.R. (3d) 420, then dismissed by this Court, but not on this point), Cavanagh J. of the Alberta Court of Queen's Bench drew a distinction which, in my view, is appropriate in this regard, at pp. 137‑38:

 

Having regard to all of that I then say that I accept the word "fouille" in s. 8  as having to do with searches of the person and the word "perquisition" as having to do with searches of a place while the English word ["search"] covers both senses.  I therefore find no conflict between the French and the English versions of s. 8 .

 

                   The fact that these powers of inspection might constitute a "search" within the meaning of s. 8  of the Charter  does not, however, change their nature.  They do not necessarily become powers of search similar to those found in criminal law.  The term "search" in s. 8  cannot be limited to searches of a criminal nature.  It may encompass, inter alia, various sorts of access, in the context of administrative law or in criminal matters; this may, however, result in differences in the scope of the constitutional guarantee (see: R. v. J.M.G. (1986), 29 C.C.C. (3d) 455 (Ont. C.A.), at pp. 459‑61 (Grange J.A.), leave to appeal refused by the Supreme Court of Canada on January 27, 1987, [1987] 1 S.C.R. ix).  To conclude otherwise would amount to unduly minimize the purpose of the guarantee against "unreasonable search or seizure", which does not seem desirable.  In short, although this is an administrative inspection, nonetheless the access to work premises conferred by the ACAD is comparable to a "search", and as such is subject to s. 8  of the Charter .  This conclusion does not, however, mean that the standard of reasonableness will necessarily be as strict in a matter involving the regulation of an industrial sector as it is in criminal matters.

 

                   I, therefore, conclude that the powers conferred on inspectors by the second paragraph of s. 22(e) ACAD are all subject to the constitutional protection of s. 8  of the Charter , since they permit the inspectors to carry out "seizures" and "searches" within the meaning of that section.

 

                   Given these premises, are these powers of search and seizure unreasonable?

 

B.Reasonableness of Powers of Inspection Conferred by the Second Paragraph of Section 22(e) ACAD

 

                   In accordance with the terms of s. 8  of the Charter , the second stage of this analysis is to determine whether the powers of search and seizure conferred on the inspectors by the ACAD are unreasonable having regard to an employer's reasonable expectation of privacy.  I would note, at the outset, that while employers may claim to have certain expectations of privacy against regulatory control, such as the control whose constitutionality is at issue here, these expectations are limited.

 

                   The second paragraph of s. 22(e) ACAD seems reasonable to me in view of the importance of the purpose of the ACAD and the concomitant need for powers of inspection to ensure its implementation.  Through its mechanism for extending collective agreements by decree, the ACAD guarantees employees working in certain sectors of activity minimum working conditions that they would not otherwise enjoy.  In so doing, the ACAD bases competition between businesses having the same kind of activity on factors other than working conditions.  These social objectives are all the more important as the employees covered by the decrees are among the most vulnerable (small businesses, low level of unionization and so on).  Fish J.A. of the Court of Appeal himself noted this primary objective of the ACAD, that is, the guarantee given to workers in certain sectors that they would enjoy minimum working conditions (at p. 1746):

 

                   [translation]  The A.C.A.D. was adopted in its initial form in 1934 (Collective Labour Agreements Extension Act, S.Q. 1934, c. 56), at a time when the labour movement was struggling to establish itself.  It made it possible by a technique of legal extension to subject to one and the same collective agreement an entire sector of activity, such as for example the leather glove industry, the women's hats industry and the men's shirts industry.  It thus ensured minimum employment conditions for employees in these sectors.

 

                   In this context, the powers of inspection of the parity committees (including the appellant Comité paritaire de l'industrie de la chemise), which have a legislative mandate to carry out the implementation of the ACAD and decrees (pursuant to s. 16 ACAD, set out above), are essential, particularly as compliance with the latter is primarily a matter of honesty and integrity on the part of employers.  Inspectors are required to exercise their powers in accordance with the purpose of the ACAD.  Any abuses which inspectors may commit would in any case be subject to penalties (see, inter alia, s. 24 ACAD, set out above).

 

                   In Thomson Newspapers and McKinlay Transport, supra, the Court clearly expressed how the legal nature of legislation affects expectations of privacy.  In Thomson Newspapers La Forest J. wrote, at p. 507:

 

                   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.  [Emphasis added.]

 

                   To this may be added the fact that the documents to which s. 22(e) ACAD applies, relate only to the coverage of employers by the ACAD and various decrees.  The content of most of these documents is in any case required by the ACAD or other legislation.  Section 1 of the Regulation respecting a Registration System or the Keeping of a Register, R.R.Q. 1981, c. N‑1.1, r. 6, adopted pursuant to the Act respecting Labour Standards, R.S.Q., c. N‑1.1, requires an employer to keep a register compiling various information, including the employee's name, the wage rate and so on.  Similarly, the keeping of detailed registers and books of account is mandated inter alia by s. 230  of the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .), s. 34 of the Act respecting the Ministère du Revenu, R.S.Q., c. M‑31, and s. 58 of the Unemployment Insurance Act, R.S.C., 1985, c. U‑1 (am. by S.C. 1991, c. 49, s. 227).

 

                   In addition, the expectations which employers may have as to the protection of their privacy from the exercise of the powers conferred by the second paragraph of s. 22(e) ACAD are further reduced by the fact that the latter are exercised at the employees' workplace, even discounting the fact that the right of access conferred by the Act is relatively limited.

 

                   The exercise of the powers conferred by the second paragraph of s. 22(e) ACAD, though applying primarily to documents of a commercial nature, could, however, potentially result in the seizure of documents likely to contain information "which tends to reveal intimate details of the lifestyle and personal choices of the individual", which is protected by the Charter  (Plant, supra, at p. 293).  "Administrative inspection" pursuant to the ACAD might perhaps take in more than simple computerized records indicating the level of electricity consumption as in Plant.  I would note, however, that the mere possibility of seizure of information of a personal nature cannot by itself determine whether the powers conferred by the ACAD are reasonable.  The ACAD does not authorize the seizure of such documents, and in the event that such documents would be seized, one could always apply to the courts for an appropriate remedy (cf. reasons of La Forest J., dissenting, in 143471 Canada Inc. v. Quebec (Attorney General), [1994] 2 S.C.R. 339, at pp. 366-67).

 

                   Thus, the expectations of privacy which employers covered by the disputed provision may have, are not very high.  The respondents in fact conceded this.

 

                   The rules in Hunter v. Southam Inc., supra, requiring a system of prior authorization based on the existence of reasonable and probable grounds, simply do not apply to administrative inspections, like those at issue here, in the case of a regulated industrial sector.  The ACAD is regulatory legislation providing for administrative inspections in a regulated industrial sector, subject to a decree.  In a regulated industry, the employer expects to have to keep a number of registers and books, including the registration system, the compulsory register and the pay‑list.  In Hunter v. Southam Inc., s. 10(3), and, by implication, s. 10(1), of the Combines Investigation Act, R.S.C. 1970, c. C‑23, were in issue.  Although the investigation set out in those provisions could be termed "administrative", its scope was extremely broad in that the duly authorized inspectors could "enter any premises", "examine any thing on the premises and . . . copy or take away for further examination or copying any book, paper, record or other document . . ." (emphasis added).  In addition, the disputed Act was not primarily limited to a regulated industrial sector, as are the ACAD and the decrees adopted thereunder, but instead covered "any premises", an expression that was not defined.  In such a situation, expectations of privacy were much higher than those an employer may have here.  In Hunter v. Southam Inc., Dickson J. was led by all of these circumstances to consider s. 10(1) and (3) of the Combines Investigation Act to be unreasonable, and to require a system of prior authorization based on the existence of reasonable and probable grounds.  The fact that the disputed Act was not limited to regulated industries meant that the strict requirements generally found in criminal law were applied to it, even though the purposes of the Act were administrative.  The ACAD, the legislation at issue here, also serves administrative purposes, but it relates primarily to a regulated industrial sector and authorizes a very circumscribed intrusion.  Accordingly, the strict rules in Hunter v. Southam Inc., cannot be applied to the seizures and searches provided for by the ACAD.  (In this regard, see also the reasons of La Forest J. in Thomson Newspapers, supra, at pp. 520‑21.)

 

                   Accordingly, the regulatory nature of the ACAD and the fact that it covers a regulated industrial sector qualify the interpretation that must be given to the guarantee contained in s. 8  of the Charter  in this context.

 

                   The importance of a contextual approach in considering constitutional guarantees has been noted in several judgments of this Court:  Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at pp. 1355‑56 (per Wilson J.); Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232, at pp. 246‑47 (per McLachlin J.); R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 737 (per Dickson C.J.); Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, at pp. 192‑93 (per L'Heureux‑Dubé J.) and 245‑46 (per McLachlin J.); R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 647 (per L'Heureux‑Dubé J.); Young v. Young, [1993] 4 S.C.R. 3, at pp. 98 (per L'Heureux‑Dubé J.) and 124 (per McLachlin J.).  In R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, which, as here, concerned an offence of a regulatory nature, Cory J. said the following at pp. 226‑27:

 

                   It is now clear that the Charter  is to be interpreted in light of the context in which the claim arises.  Context is relevant both with respect to the delineation of the meaning and the scope of Charter  rights, as well as to the determination of the balance to be struck between individual rights and the interests of society.

 

                   A contextual approach is particularly appropriate in the present case to take account of the regulatory nature of the offence and its place within a larger scheme of public welfare legislation.  This approach requires that the rights asserted by the appellant be considered in light of the regulatory context in which the claim is situated, acknowledging that a Charter  right may have different scope and implications in a regulatory context than in a truly criminal one.

 

                   Under the contextual approach, constitutional standards developed in the criminal context cannot be applied automatically to regulatory offences.  Rather the content of the Charter  right must be determined only after an examination of all relevant factors and in light of the essential differences between the two classes of prohibited activity.  This was the approach taken in Thomson Newspapers Ltd., supra, where La Forest J. stressed the importance of the regulatory nature of the statute in determining the scope of s. 8  of the Charter  as applied to the Combines Investigation Act [R.S.C. 1970, c. C‑23].

 

                   The contextual approach further requires that the appellant's claim be considered and weighed in light of the realities of a modern industrial society, where the regulation of innumerable activities is essential for the benefit of all.  It is vital that the fundamentally important role of regulatory legislation in the protection of individuals and groups in Canadian society today be recognized and accepted.  Canadians rely on and expect their governments to regulate and control activities which may be dangerous to others.  In McKinney v. University of Guelph, [1990] 3 S.C.R. 229, Wilson J. noted the special role of the state in life in Canada.  At page 356 of her reasons she wrote:

 

Canadians recognize that government has traditionally had and continues to have an important role to play in the creation and preservation of a just Canadian society.  . . .  It is, in my view, untenable to suggest that freedom is co‑extensive with the absence of government.  Experience shows the contrary, that freedom has often required the intervention and protection of government against private action.

 

                   The scale and importance of public welfare legislation in Canada is such that a contextual approach must be taken to the issues raised in this appeal.  [Emphasis added.]

 

Noting the regulatory nature of the Competition Act, R.S.C. 1970, c. C‑23 (formerly the Combines Investigation Act), Cory J. went on to say at p. 232:

 

                   By virtue of the decision to enter the regulated field, the regulated person [in the case at bar the respondents Sélection Milton and Jonathan Potash] can be taken to have accepted certain terms and conditions of entry.  To paraphrase La Forest J., the procedural and substantive protections a person can reasonably expect may vary depending upon the activity that brings that person into contact with the state.  Thus the extent of Charter  protection may differ depending upon whether the activity in question is regulatory or criminal in nature.  [Emphasis added.]

 

These comments do apply to the present appeal since the ACAD is of a strictly regulatory nature.  The penalties imposed by s. 33  are only there to ensure that the provisions of the Act will be implemented and to achieve the purpose of the regulation, which is to guarantee minimum standards in working conditions of employees in the men's and boys' shirt‑making sector of the industry.

 

                   The seizures and searches at issue in this appeal therefore seem, at first sight, not to be unreasonable and to comply with s. 8  of the Charter .  I now propose to consider in detail the following points raised in relation to the reasonableness of the powers conferred by the second paragraph of s. 22(e) ACAD:

 

(1)access to the workplace for inspection purposes without a warrant being required;

 

(2)the use of the powers of inspection on the basis of a complaint and not of the existence of reasonable and probable grounds;

 

(3)the application of the powers of inspection to all employers; and

 

(4)the application of the powers of inspection to the documents eventually inspected.

 

1.Access to Workplace

 

                   In addition to the power to examine certain documents or to order their production, one feature of the Act provides for access to the workplace in order to obtain information from the employer and its employees.  Accordingly, the question arises as to whether these powers of inspection, which are comparable to a "search" within the meaning of s. 8  of the Charter , and which are exercised without prior authorization, are reasonable.

 

(i)  Canadian Position

 

                   Several provincial courts of appeal have held that administrative inspections involving a visit to the premises were not unreasonable invasions of privacy and have consequently refused to apply the strict rules set out in Hunter v. Southam Inc., supra (e.g., Re Belgoma Transportation Ltd. and Director of Employment Standards, supra, at p. 159; R. v. Quesnel, supra, at p. 83; Bertram S. Miller Ltd. v. R., supra, at p. 324 (per Ryan J.) and pp. 342‑43 (per Hugessen J.A.); R. v. Bichel, supra, at pp. 272‑73).

 

                   Furthermore, though it was not essential to rule on this point in Thomson Newspapers, supra, since the sole validity of the power to order the production of documents was at issue, La Forest J. wrote at p. 507:

 

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.

 

I observed, with respect to the production of documents, that (at p. 594):

 

. . .  the existence of a mechanism of discovery is necessary in order to properly serve the regulatory objective of the legislation.  That the mandatory production of corporate documents is rationally connected to the Act's main purpose is in my view clear.  [Emphasis added.]

 

                   Similarly, to paraphrase, the visit of the premises must be "necessary in order to properly serve the regulatory objective of the [ACAD]" and be "rationally connected to the [ACAD]'s main purpose".  Seen in this way, the right of access to the workplace conferred on inspectors by the second paragraph of s. 22(e) ACAD seems to me to be reasonable, especially in view of, on the one hand, the regulatory context in which it is to be exercised and, on the other, the limited nature of the right of access.  In this regard, the visit takes place at the employees' workplace.  Moreover, the inspectors cannot freely engage in a search of the premises.  The ACAD significantly circumscribes the manner in which the inspection will take place: access to the workplace is permitted solely in order to consult certain documents and obtain information from the employer and employees.  Further, clear limits are set to the right of access in that the visit can only be made at a reasonable time.  Finally, the ACAD does not permit inspectors to use force to gain access to the workplace.  In the event of a refusal by the employer, the inspectors can only lay charges under s. 33 ACAD for obstruction of an inspection, as was done in the present case.

 

                   Notwithstanding the regulatory nature of the ACAD, the respondents argued that, in trade and administrative inspection matters in Canada, there should be a requirement of prior authorization similar to that of the "administrative warrant" developed by the U.S. jurisprudence.  A brief review of the state of the law in the U.S. in this regard actually leads me to favour the contrary position, namely the absence of any requirement of an administrative warrant.

 

(ii)U.S. Position

 

                   The Fourth Amendment protects what is now called a "reasonable expectation of privacy" (Katz v. United States, 389 U.S. 347 (1967), at p. 361 (per Harlan J.)).  The fundamental rule on administrative inspections was stated in Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967), and See v. City of Seattle, 387 U.S. 541 (1967).  This rule is primarily based on the wording of the Fourth Amendment which provides that:  "The right of the people to be secure . . . against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause . . ."  (emphasis added).

 

                   Although preserving the distinction between criminal and civil proceedings, the U.S. Supreme Court considered that a warrant should first be obtained before undertaking an administrative inspection:  this was the origin of the "administrative warrant".  However, the Court recognized that the requirements in administrative matters are lower and more flexible.  It is not necessary to establish reasonable and probable grounds as in criminal law, only to establish a proper balance between the interests of government and those of individuals.  In Camara, for example, inspectors would have had to prove the nature of the municipal inspection program, the effect of the passage of time, the nature of the buildings in question and the condition of the area to be inspected.

 

                   This rule established by Camara and See was eroded in cases such as Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970), and United States v. Biswell, 406 U.S. 311 (1972).  However, these cases were treated in later decisions (Marshall v. Barlow's Inc., 436 U.S. 307 (1978), and Donovan v. Dewey, 452 U.S. 594 (1981)) as exceptions to the general rule set in Camara and See.  In Colonnade Catering, the U.S. Supreme Court held that a statute authorizing the inspection without a warrant of the premises of a liquor dealer holding a permit, did not violate the Fourth Amendment.  The Court justified this exception by reference to the fact that the liquor industry had long been subject to this type of inspection (first exception).  In Biswell, supra, a second exception was created for weapons dealers holding permits.  Although the industry was not subject to a long‑standing regulation, the Court felt that it was very heavily regulated (second exception).

 

                   After retreating somewhat in Marshall, the Court in Donovan created a third exception to the general rule that an administrative warrant is necessary.

 

                   In New York v. Burger, 482 U.S. 691 (1987), the Court decided that legislation authorizing the administrative inspection of an automobile junkyard without a warrant fell within the exception established by Biswell, as the "scrap iron" industry was very heavily regulated.  Brennan J., dissenting in that decision, summed up the present state of U.S. law as follows (at pp. 718 and 721):

 

As a result, the Court renders virtually meaningless the general rule that a warrant is required for administrative searches of commercial property.

 

                                                                   . . .

 

Under these circumstances, the warrant requirement is the exception not the rule, and See has been constructively overruled.

 

Robert C. Maybank ("Constitutional requirements for administrative warrants in Canada and the United States:  Opposite trends?" (1989), 39 U.T.L.J. 55, at p. 68) expressed a similar view and concluded that the U.S. Supreme Court has, in practice, simply abandoned the rule of an administrative warrant, though still making reference to it in theory.  Similarly, the intervener Attorney General of Alberta listed (at pp. 27‑29 of his submission) a series of industries in which the U.S. courts have held that there was no reason to obtain an administrative warrant for administrative inspections.

 

                   I, therefore, conclude that, even with our neighbours to the south, the administrative warrant is at present in almost complete disfavour.

 

                   (iii)  Pragmatic Aspect

 

                   Additionally, as I explained earlier, the strict rules in Hunter v. Southam Inc., supra, clearly could not apply to a visit to a workplace for administrative purposes in view of the regulatory context in which the powers are conferred on the inspectors by the ACAD, the fact that the ACAD applies to a regulated industrial sector, the minimum intrusion that those powers imply and the employers' lower expectation of privacy in this context.

 

                   For the inspectors to have to obtain a warrant, as in a criminal matter, would require them to have reasonable and probable grounds to believe that an offence against the ACAD had been committed.  The very reason the inspectors have been granted powers of inspection is to determine whether an offence has been committed.  According to the rules laid down in Hunter v. Southam Inc., a warrant could never be issued in such circumstances.  It can thus be seen that, in pragmatic terms, the rule in Hunter v. Southam Inc. must necessarily be inapplicable to administrative inspections in a regulated industrial sector, like those at issue in the present appeal.  Those rules simply constitute here "too high a threshold" (Thomson Newspapers, supra, at p. 595, per L'Heureux‑Dubé J.).

 

(iv)Conclusion

 

                   In conclusion, like the appellants, I consider that it would be neither useful nor prudent to introduce into Canadian law a requirement of prior authorization similar to that of the U.S. "administrative warrant".  The creation of an administrative warrant by the courts is largely due to the particular wording of the U.S. Fourth Amendment, which is very different from that of s. 8  of the Charter .  The development of the administrative warrant, sprinkled with increasingly numerous exceptions which are difficult to distinguish, demonstrates its limited value.  Additionally, the rules in Hunter v. Southam Inc. cannot be applied to administrative inspections in a regulated industry.  Accordingly, there was no need for the inspectors to obtain a warrant prior to entry into the respondent's premises.

 

2.Use of Powers of Inspection Following a Complaint

 

                   It is of the very nature of an administrative inspection in a regulated industry that it takes place when there are no reasonable grounds to believe that a particular offence has been committed.  The question must be whether, when the inspection is not at random but results from a complaint made by an employee, a different conclusion as to the reasonableness of the limits set out in the second paragraph of s. 22(e) ACAD is warranted.  A complaint was made in the present appeal as well as in some 9,357 inspections made in 1991 (see 1991 Annual Report, Record ‑ Addendum, at p. 292).  It could be argued that, when a complaint is filed, the situation is close to the one contemplated in Hunter v. Southam Inc., since it is then possible to identify a particular offence which may eventually lead to a penal prosecution.  I do not, however, subscribe to this argument.

 

                   In my opinion, a mere complaint is insufficient in itself to justify inspectors being subject to the requirements of Hunter v. Southam Inc.  There is an important distinction between having reasonable and probable grounds to believe that an offence was committed and simply having an information, especially if the latter is given anonymously.  An inspection will often be necessary before it is even possible to establish the existence of reasonable grounds to believe that a breach of the law has occurred.  This is the position taken by appellate courts in various provinces, inter alia in the aforementioned decisions of the Ontario Court of Appeal, R. v. Quesnel, at p. 83, and Ontario Chrysler (1977) Ltd. v. Ontario (Director of the Consumer Protection Division of the Ministry of Consumer & Commercial Relations), at pp. 150‑51.  This is, moreover, the position mandated by the fact that the ACAD covers only a regulated industrial sector.

 

                   It should be added that the complaint filed in the case at bar, if proved valid once the inspection is completed, would have led not to a penal proceeding but to a civil claim for wages pursuant to s. 14 ACAD.  In my opinion, civil actions were clearly not contemplated in Hunter v. Southam Inc.  Furthermore, the appellants properly argued that, when inspectors have reasonable grounds to believe that an offence has been committed, they instead choose to obtain prior authorization pursuant to s. 8 of the Summary Convictions Act (subsequently replaced by the Code of Penal Procedure, ss. 95 et seq.).  In this appeal such a procedure was not necessary since the inspection was purely for the administrative purpose of regulating the men's and boys' shirt industry.

 

3.Application of Powers of Inspection to Employers

 

                   Like Fish J.A. of the Court of Appeal, the respondents conceded that the second paragraph of s. 22(e) ACAD is reasonable as it applies to "professional employers" but argued that the powers it confers are not reasonable in so far as they may potentially be exercised against all employers and not merely those subject to a decree.  According to them, the invasion of privacy must be minimal and, in the case of the ACAD, this objective would have been attained by adding to the wording of the second paragraph of s. 22(e) ACAD the requirement of reasonable grounds to believe that an employer is subject to the decree, essentially adopting the opinion of Fish J.A.

 

                   This argument is, at first sight, attractive since it is true that, in practice, the parity committees possess no power of supervision over employers who are not subject to the application of a decree.  However, the ACAD applies to all employers and not only to professional employers (see the definitions stated in s. 1(f) and (g), set out above).  The ACAD provides that decrees are of public order and binding on all employees as well as their employers within their respective spheres (see ss. 2 and 11 ACAD, set out above).  Accordingly, an employer who causes one of his employees to perform work of the same kind as that covered by a decree is subject to the application of its standards.

 

                   The Supreme Court of Canada has held that a decree is a function of the nature of the work done by an employee and not of the employer's type of business, as was stated in Quebec (Construction Industry Commission) v. M.U.C.T.C., [1986] 2 S.C.R. 327, at p. 338, by Chouinard J., following Comité Paritaire de l'Industrie de l'Imprimerie de Montréal et du District v. Dominion Blank Book Co., [1944] S.C.R. 213, at p. 219 (Taschereau J., as he then was).  It was reiterated by the Quebec Court of Appeal in Laiterie Perrette Ltée v. Comité paritaire de l'industrie de l'automobile de Montréal et du district, [1988] R.J.Q. 76, a case which, like the one at bar, concerned the ACAD.  Moisan J. (ad hoc) said at p. 79:

 

                   [translation]  The only concept with which the Act [the ACAD] is concerned is that of the nature or type of work done by an employee.  Any other rule of differentiation, however interesting, has not been retained by the legislature.

 

                   It is thus the nature of the work rather than the status of the parties or their relationship which matters in determining whether they are subject to the application of the decrees.  This is why all employers, as well as all employees, come within the ambit of the ACAD.  Accordingly, it seems to me that the interpretation of the ACAD given by the respondents, at least in so far as the latter argue that it does not apply to "professional employers", is in error.

 

                   The particular scheme of the ACAD also explains why all employers are covered by the provisions regarding inspections.  Inspectors must have the means of determining whether a given employer is in fact subject to a decree and is in compliance with it.  In my opinion, it would not be advisable to impose the limit suggested by the respondents on the parity committees' right of inspection given the technical nature of the provisions for the application of decrees.  The appellants and the intervener, the Association des comités paritaires du Québec, gave very persuasive examples of the difficulty, without prior inspection, of determining whether a decree applies and, if so, whether an employer is subject to it.  For example, the Decree respecting the Women's Clothing Industry, R.R.Q. 1981, c. D‑2, r. 26, applies generally to the manufacture of various types of clothing "for female persons" (s. 2.02).  However, s. 2.04 provides fifteen exceptions to this Decree, including the following, which point to the great difficulty in its application:

 

2.04.  Exception:  The Decree does not govern:

 

                                                                   . . .

 

                   8o  garments for female children not larger than size 6 years as determined by the program for standard sizes of children's garments called Canada Standard Sizes approved by the Canadian Government Standards Office that is 62 centimetres chest, 53 centimetres waist and 60 centimetres hips;

 

                   9o  the manufacture of bathrobes, dressing gowns and kimonos made of material weighing at least 270 grams per square metre;

 

                   10o  knitted garments covering the upper part of the body that have an unravelable knitted edge not exceeding 68 centimetres in length when the fabrics used have been knitted in a shop of the manufacturer in the form of blanks;

 

                   Similarly, the application of the Decree which is the subject of this appeal is not free of problems.  I reproduce ss. 1.01 and 6.01 of the Decree respecting the Men's and Boys' Shirt Industry in order to indicate its technical nature:

 

1.01.  This Decree covers the industry manufacturing or producing, in whole or in part, men's and boys' shirts and pyjamas of all kinds and of all descriptions, without limitation.  It also covers the industry manufacturing or producing, in whole or in part, men's and boys' boxer shorts and underwear which are cut and sewn.

 

                   This Decree also includes the manufacture or production of ladies' and girls' mannish tailored shirts and pyjamas which have the same style, pattern, construction, material and operation as those used in the manufacture of shirts and pyjamas for men and boys.

 

                   These garments may be made of woven or knitted fabric or with any kind of material.

 

6.01.  For the purposes of this Decree, the following expressions mean:

 

                                                                   . . .

 

                   (i)  "shirts":  garments covering the upper part of the body, with a collar and no body lining, worn generally with or without underwear, and with a full or partial front opening.  These garments may be designed to be worn inside or outside pants.

 

                   (j)  "pyjamas":  a garment usually worn to sleep including garments described as sleepers and whose legs are extended to completely cover the feet.

 

                   (k)  "knitted fabrics":  knitted fabrics of construction of 28 gauge or more that is to say 15 vertical stitches or more per 2 centimeters.

 

                   In addition, it can and should be assumed that, because of their particular expertise on a parity committee, inspectors will, in most cases, conduct inspections at the premises of employers which they suspect are subject to a decree.  In this way, not only will abuses be avoided but infringements of reasonable expectations of privacy will be minimal.  This, in any case, is what appears to have happened here, since, prior to the inspection, the inspectors noticed in the respondent's display case shirts of the same brand as those manufactured by Miss Malouin in Sherbrooke.

 

                   Accordingly, I do not believe that the limit set by Fish J.A. and argued by the respondents, is essential to the constitutional validity of the second paragraph of s. 22(e) ACAD.  I will not, therefore, consider Fish J.A.'s comments regarding the reading down and the reading in of s. 22(e) ACAD.

 

4.Scope of Powers of Inspection of Documents

 

                   The parties discussed the application of the second paragraph of s. 22(e) ACAD to documents of which the inspectors have the power to request consultation or production.  According to the respondents, such a seizure is unreasonable.  In my view, the disputed provision places adequate limits on the documents in question:  it relates only to the employer's business documents, and, in particular, those regarding his coverage by the ACAD and the application of the decrees.  I also note that s. 22(e) ACAD is more restrictive than s. 231(3) of the Income Tax Act, R.S.C. 1952, c. 148, though in McKinlay Transport, supra, the latter was held to be constitutional under s. 8  of the Charter .

 

                   Accordingly, contrary to the ruling of the Court of Appeal, the entire second paragraph of s. 22(e) ACAD does not infringe s. 8  of the Charter .  The seizures and searches it authorizes are not unreasonable.  It is, therefore, not necessary to undertake a s. 1  Charter  analysis.

 

C.  Inspectors' Conduct

 

                   In the case at bar the inspectors went to the premises of the respondent Sélection Milton twice, on February 2 and 24, 1988.  The respondents made no suggestion in this Court that these inspections were conducted in an unreasonable manner.  In any case, the evidence would not have supported such allegations as there was in fact no inspection, since access to the premises was denied to the inspectors and the documents requested were not produced by the respondents.  In the circumstances, s. 8  of the Charter  was not infringed by the inspectors' conduct.

 

D.Powers of Inspection and Production of Documents under the Second and Fourth Paragraphs of Section 22(e) ACAD and Section 24.1 of the Quebec Charter

 

                   Section 24.1 of the Quebec Charter provides that "[n]o one may be subjected to unreasonable search or seizure".  As Lucie Angers notes ("À la recherche d'une protection efficace contre les inspections abusives de l'État: la Charte québécoise, la Charte canadienne  et le Bill of Rights américain" (1986), 27 C. de D. 723, at p. 730), the wording of s. 24.1 [translation] ". . . differs from that of s. 8  of the Canadian Charter  in that it does not provide a right to protection against unreasonable searches and seizures".  (Emphasis in original.)  However, the author asserts, at p. 731:

 

                   [translation]  The two Charters provide similar protection against unreasonable seizures and searches.  [Emphasis added.]

 

In my view, the expressions "seizures", "searches" and "unreasonable" have the same meaning and the same scope in the two documents.  The analytical approach and the tests developed by this Court in relation to s. 8  of the Charter  apply equally to s. 24.1 of the Quebec Charter.  I note that s. 24.1, however, is not subject to the moderating provisions of s. 9.1 of the Quebec Charter (Ford v. Quebec (Attorney General), supra, at pp. 769‑70 and 781; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790, at p. 818 (per curiam)).

 

                   If we undertake the same analysis as we did earlier, the powers provided for in the second paragraph of s. 22(e) ACAD constitute a "seizure" and a "search" within the meaning of s. 24.1 of the Quebec Charter, but they are not "unreasonable".  Accordingly, the second paragraph of s. 22(e) ACAD does not infringe s. 24.1 of the Quebec Charter.

 

                   In view of the respondent's arguments, I will address the fourth paragraph of s. 22(e) ACAD, although Fish J.A. of the Court of Appeal expressly stated (at p. 1752) that his reasons dealt only with the second paragraph of s. 22(e), explicitly refraining from ruling on the other components of that subsection.  For the sake of convenience, I reproduce here the fourth paragraph of s. 22(e) ACAD:

 

                   [Documents]  The general manager, the secretary or any inspector may also require the production of any document referred to in the second paragraph or any document relating to the application of this Act, a decree or a regulation, make a copy thereof and certify it as a true copy of the original.  The copy is admissible as proof and has the same probative value as the original;

 

                   This request for the production of documents is clearly a "seizure" within the meaning of s. 24.1 of the Quebec Charter (cf. Thomson Newspapers and McKinlay Transport, supra).  Is it reasonable?  In my view, this paragraph places adequate limits on the documents of which the inspectors have the power to request consultation or production:  it covers only the employer's business documents, and more particularly those that relate to coverage of the employer by the ACAD and the application of a decree.  In addition, this fourth paragraph of s. 22(e) ACAD is narrower than s. 231(3) of the Income Tax Act, and yet that provision was held to be constitutional under s. 8  of the Charter  in McKinlay Transport.  Accordingly, the fourth paragraph of s. 22(e) ACAD does not infringe s. 24.1 of the Quebec Charter.

 

                   The respondents' arguments based on the Quebec Charter are therefore dismissed.

 

VI ‑  Conclusion

 

                   For all these reasons, the appeal should be allowed, the Court of Appeal judgment reversed, the judgments of the Court of Quebec (Criminal and Penal Division) and Superior Court, Criminal Division, reinstated together with the convictions of the respondents and the sentences, the whole with costs against the latter.  The constitutional questions are answered as follows:

 

                   1.Are the provisions of s. 22(e) of An Act respecting Collective Agreement Decrees, R.S.Q., c. D‑2, which confer powers of inspection, inconsistent with s. 8  of the Canadian Charter of Rights and Freedoms ?

 

Answer:No.

 

                   2.If the answer to question 1 is in the affirmative, are these provisions justified pursuant to s. 1  of the Canadian Charter of Rights and Freedoms ?

 

Answer:In view of the answer to the first question, the second does not arise.

 

Finally, the provisions of s. 22(e) ACAD, which confer powers of inspection and production of documents are not inconsistent with s. 24.1 of the Quebec Charter.

 

                   Appeal allowed with costs.

 

                   Solicitors for the appellants:  Dubuc, LeFrançois & Associés, St‑Laurent; Gilles Laporte and Monique Rousseau, Ste‑Foy.

 

                   Solicitors for the respondents:  Orenstein, Ruby, Orenstein, Montréal.

 

                   Solicitor for the intervener the Attorney General for Ontario:  George Thomson, Toronto.

 

                   Solicitor for the intervener the Attorney General for Saskatchewan:  W. Brent Cotter, Regina.

 

                   Solicitor for the intervener the Attorney General for Alberta:  Robert C. Maybank, Edmonton.

 

                   Solicitors for the intervener the Association des comités paritaires du Québec Inc.:  Allaire Fortier, Montréal.

 

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