R. v. Jobin, [1995] 2 S.C.R. 78
Reinie Jobin, John Sawan, Paul Ominayak,
Victor Scotty, Brian Laboucan, Sullivan Laboucan,
Norman Laboucan, Dwight Gladue, Walter Whitehead,
Hector Whitehead, George Whitehead, John Letendre,
Steve Noskey, Rodney Sinclair, Adolphus Wapoose,
Gary Wapoose, Joe Laboucan, Dennis Noskey
and Mark Laboucan Appellants
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Manitoba,
the Attorney General of British Columbia,
the Attorney General for Saskatchewan,
Bruce Douglas Branch and Pal Arthur Levitt Interveners
and between
John Sawan, Paul Ominayak, Victor Scotty,
Brian Laboucan, Sullivan Laboucan, Norman Laboucan,
Dwight Gladue, Walter Whitehead, Hector Whitehead,
George Whitehead, John Letendre, Steve Noskey,
Rodney Sinclair, Adolphus Wapoose, Gary Wapoose,
Joe Laboucan, Dennis Noskey, Mark Laboucan,
Melvin Scotty and Jim Houle Appellants
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Manitoba,
the Attorney General of British Columbia,
the Attorney General for Saskatchewan,
Bruce Douglas Branch and Pal Arthur Levitt Interveners
Indexed as: R. v. Jobin
File No.: 23190.
1994: February 28 and March 1; 1995: April 13.
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 alberta
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Self‑incrimination ‑‑ Right to silence ‑‑ Whether accused separately charged with offence, and persons suspected of offence, compellable as witnesses at preliminary inquiries or criminal trials of other accused charged with same offence ‑‑ Whether compellability in such circumstances violates principles of fundamental justice ‑‑ Whether s. 5 of Canada Evidence Act constitutional ‑‑ Canadian Charter of Rights and Freedoms, s. 7 ‑‑ Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 5.
Criminal law ‑‑ Procedure ‑‑ Subpoenas ‑‑ Third party ‑‑ Accused separately charged with offence, and persons suspected of offence, subpoenaed to testify at preliminary inquiries of other accused charged with same offence ‑‑ Accused and suspects claiming that compellability in such circumstances violates principles of fundamental justice ‑‑ Procedure to be followed by third parties to challenge subpoenas issued by provincial court judge.
Courts ‑‑ Supreme Court of Canada ‑‑ Jurisdiction ‑‑ Correct procedure for third party challenge of provincial court order not followed since unknown at time ‑‑ Procedure followed by third party substantially similar to correct procedure ‑‑ Whether Supreme Court has jurisdiction to entertain appeal.
J and the other appellants are all either charged or suspects in connection with an explosion and fire that damaged a property. A provincial court judge issued subpoenas requiring them to testify at the preliminary inquiries of the other accused appellants who are separately charged. The accused appellants applied to a superior court judge for an order quashing the subpoenas on the ground that their right to silence under s. 7 of the Canadian Charter of Rights and Freedoms would be infringed. The appellants who were not charged also applied to quash the subpoenas. The superior court judge dismissed the application and the Court of Appeal dismissed the appellants' appeal for lack of jurisdiction. Sometime later, the appellants were subpoenaed to testify at J's trial. Their application to have the subpoenas quashed was again dismissed. This appeal raises two issues: (1) whether the Court has jurisdiction to hear this appeal; and (2) whether persons separately charged with an offence, and persons suspected of an offence, are compellable as witnesses at the preliminary inquiries and criminal trials of other persons charged with the same offence.
Held: The appeal should be dismissed.
(1) Jurisdiction
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: In seeking to challenge the subpoenas issued by the Provincial Court, the appellants must follow the procedure for third parties laid out in Dagenais and apply to a superior court judge for the issuance of a writ of certiorari. While, technically, the appellants did not follow the correct procedure since they did not have the benefit of this Court's reasons in Dagenais, it is sufficient that they applied for s. 24(1) Charter relief, which by its nature would be included in the expanded remedial scope of certiorari described in Dagenais. The Court of Appeal therefore did have jurisdiction to hear the appeal, pursuant to s. 784(1) of the Criminal Code. The jurisdiction of this Court follows naturally from the decision of the Court of Appeal, pursuant to s. 40(1) of the Supreme Court Act.
Per L'Heureux‑Dubé J.: For the concurring reasons given in R. v. Primeau, [1995] 2 S.C.R. 60, the appellants could appeal the superior court judge's decision to the Court of Appeal and could appeal, with leave, the Court of Appeal's decision to this Court.
(2) Compellability
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The liberty interest under s. 7 of the Charter is engaged when a deprivation is imminent, and the applicants sought relief at the appropriate time when they first applied to a superior court judge for an order quashing the subpoenas. The appellants, however, could not claim a right to silence on the basis that they were entitled to claim this right by virtue of their status as "accused persons", "suspected persons", or "unindicted co‑conspirators". This focus on status occludes the focus required by the Charter, which is a focus on the purpose or character of the proceedings. There is no meaningful difference between subpoenas issued in respect of preliminary inquiries and those issued in respect of criminal trials. Since there is no evidence to suggest that the subpoenas issued in this case can be regarded as a form of pre‑trial interrogation in respect of any of the appellants or are otherwise objectionable, all of the persons subpoenaed to testify were properly compellable. At subsequent proceedings against any of them, each would be entitled to the protections against self‑incrimination described in R. v. S. (R.J.), [1995] 1 S.C.R. 451, as refined in British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3.
Section 5 of the Canada Evidence Act does not infringe s. 7 of the Charter.
Per L'Heureux‑Dubé J.: For the concurring reasons given in R. v. S. (R.J.), [1995] 1 S.C.R. 451, the appellants are compellable witnesses at the preliminary inquiries and criminal trials of the other accused appellants. If compelled to testify, they are entitled to the protection of s. 13 of the Charter and of s. 5 of the Canada Evidence Act, which does not infringe the Charter. The appellants could also invoke the residual protection of s. 7 of the Charter should the circumstances be of the kind outlined in the concurring reasons in S. (R.J.). However, since there is no evidence to suggest that the subpoenas issued in this case can be regarded as a form of pre‑trial interrogation in respect of any of the appellants or are otherwise objectionable, none of the appellants could successfully invoke the residual protection of s. 7 to quash their subpoenas at this stage, the subpoena stage.
Cases Cited
By Sopinka and Iacobucci JJ.
Applied: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. S. (R.J.), [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; R. v. Primeau, [1995] 2 S.C.R. 60; referred to: Re Praisoody (1990), 1 O.R. (3d) 606, 61 C.C.C. (3d) 404 (sub nom. R. v. Devasagayam); Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Paquette (1987), 38 C.C.C. (3d) 353; Mills v. The Queen, [1986] 1 S.C.R. 863.
By L'Heureux‑Dubé J.
Applied: R. v. Primeau, [1995] 2 S.C.R. 60; referred to: R. v. S. (R.J.), [1995] 1 S.C.R. 451.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 5.
Canadian Charter of Rights and Freedoms, ss. 1, 7, 13, 24(1).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 698, 699, 700 [am. c. 27 (1st Supp.), s. 148], 784(1), 813 [idem, s. 180; am. 1991, c. 43, s. 9 (Sch., item 12)].
Supreme Court Act, R.S.C., 1985, c. S‑26, s. 40(1) [rep. & sub. 1990, c. 8, s. 37].
APPEAL from a judgment of the Alberta Court of Appeal (1992), 75 C.C.C. (3d) 445, 131 A.R. 179, 25 W.A.C. 179, 10 C.R.R. (2d) 313, dismissing the appellants' appeal from a judgment of Berger J. (1991), 66 C.C.C. (3d) 281, 123 A.R. 220, dismissing applications to quash subpoenas. Appeal dismissed.
Clayton C. Ruby, Howard Rubin and Shaun Nakatsuru, for the appellants.
Paul C. Bourque, for the respondent.
S. Ronald Fainstein, Q.C., and Robert J. Frater, for the intervener the Attorney General of Canada.
Michal Fairburn and Scott Hutchison, for the intervener the Attorney General for Ontario.
Jacques Gauvin and Gilles Laporte, for the intervener the Attorney General of Quebec.
Marva J. Smith, for the intervener the Attorney General of Manitoba.
George H. Copley, for the intervener the Attorney General of British Columbia.
Graeme G. Mitchell, for the intervener the Attorney General for Saskatchewan.
Alastair Rees‑Thomas, for the interveners Branch and Levitt.
//Sopinka and Iacobucci JJ.//
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
I. Sopinka and Iacobucci JJ. -- The important question in this appeal is very similar to the main question raised in R. v. S. (R.J.), [1995] 1 S.C.R. 451, heard together with this appeal, namely, are persons separately charged with an offence, and persons suspected of an offence, compellable as witnesses at the preliminary inquiries and criminal trials of other persons charged with the same offence?
I. Facts
II. The facts of the present appeal are complex. The appellants are all either charged or suspects in connection with an explosion and fire that damaged property located at the Buchanan Logging Site, near Haig Lake, Alberta. For the purposes of identification within this appeal, we shall refer to the appellants charged with an offence as the "primary appellants"; those who are only suspects shall be referred to as "secondary appellants".
III. The primary appellants are: Paul Ominayak, Reinie Jobin, Victor Scotty, Dwight Gladue, Norman Laboucan, Brian Laboucan, Sullivan Laboucan, John Sawan, Walter Whitehead, Hector Whitehead, George Whitehead, John Letendre and Steve Noskey. All thirteen are charged with several criminal offences, namely: arson, mischief, possession of explosives, and wearing a mask in the commission of an indictable offence.
IV. The secondary appellants, who are not now charged but who are said to be implicated in the offence and who are in receipt of subpoenas to testify, are: Rodney Sinclair, Adolphus Wapoose, Gary Wapoose, Joe Laboucan, Mark Laboucan and Dennis Noskey.
V. The Crown has conceded that there is but one actus reus alleged. However, each of the primary appellants is the subject of a separate information, with the exception of Walter Whitehead, Hector Whitehead, George Whitehead, John Letendre and Steve Noskey, who are jointly charged. The Crown sought and obtained from the Alberta Provincial Court, subpoenas requiring Norman Laboucan, Brian Laboucan, Victor Scotty, Sullivan Laboucan, Joe Laboucan, Gary Wapoose, Adolphus Wapoose, Mark Laboucan and Rodney Sinclair to testify at the preliminary inquiry of Reinie Jobin. Reinie Jobin was subpoenaed to testify at John Sawan's preliminary inquiry.
VI. The appellants applied for relief to Berger J. of the Court of Queen's Bench of Alberta. Although the exact nature of the application is unclear, the original notice of motion requested, inter alia:
1.To quash subpoenas as annexed hereto in Schedule "A" setting out the witnesses subpoenaed and the respective Preliminary Inquiries for which they are to be compelled and such other subpoenas as have been served upon and of the Applicants by the time of the hearing of this application;
2.In the nature of prohibition preventing the presiding Judge at the said Preliminary Inquiries of: a) Reinie Jobin and b) John Sawan from compelling the evidence of the Applicants at those Preliminary Inquiries and in the Preliminary Inquiries against c) Paul Ominayak and d) Victor Scotty or in Preliminary Inquiries of e) Brian Laboucan; f) Sullivan Laboucan; g) Norman Laboucan; h) Dwight Gladue; and i) Walter Whitehead, Hector Whitehead, George Whitehead, John Letendre, and Steve Noskey;
3.An interim Order of prohibition until such time as this application can be heard and determined;
VII. In addition to seeking to quash the subpoenas, the appellants obtained permission to challenge the validity of s. 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5. The primary appellants allege that being compelled to testify would violate their right to silence contrary to the principles of fundamental justice. Berger J. dismissed the application without ruling on the validity of s. 5 of the Canada Evidence Act: (1991), 66 C.C.C. (3d) 281, 123 A.R. 220.
VIII. The appellants appealed the decision to the Court of Appeal for Alberta. The Court of Appeal dismissed the appeal for lack of jurisdiction: (1992), 75 C.C.C. (3d) 445, 131 A.R. 179, 25 W.A.C. 179, 10 C.R.R. (2d) 313.
IX. In the interim between the decision of Berger J. and that of the Court of Appeal, all of the primary appellants waived their rights to a preliminary inquiry in the hope that an appeal route would be located before any person would be compelled to give evidence. However, following the dismissal of the appellants' appeal to the Court of Appeal, subpoenas were issued in the trial of Reinie Jobin.
X. Jobin's trial was to begin in October 1992. All the primary and secondary appellants, save Jobin, were once again subpoenaed to testify. They applied a second time to the Court of Queen's Bench for Alberta in order to have the subpoenas quashed. McFadyen J. (as she then was) dismissed the application on the same grounds as Berger J. did.
XI. Jobin's trial finally began on January 4, 1993. At the outset of Jobin's trial, defence counsel announced that a police statement made by Jobin could be admitted without a voir dire. On this basis, the Crown agreed not to call any of the subpoenaed witnesses. Jobin's counsel later asserted the need for a voir dire. On March 8, 1993, a mistrial was declared because Crown counsel had referred to Jobin's police statement in the opening address to the jury.
XII. On February 4, 1993, leave to appeal was granted at large by this Court, [1993] 1 S.C.R. vii. The motion book for leave covered three bases for seeking leave. First, leave was sought from the decision of the Court of Appeal. Second, and in the alternative, it was sought directly from the decision of Berger J. Third, and in the alternative, leave was sought directly from the decision of McFadyen J.
II. Relevant Constitutional and Statutory Provisions
XIII. The provisions relevant to this appeal are the same as those relevant to the judgments in S. (R.J.) and R. v. Primeau, [1995] 2 S.C.R. 60, heard together with this appeal, and are reproduced in those reasons for judgments.
III. Judgments
Court of Queen's Bench of Alberta (1991), 66 C.C.C. (3d) 281
XIV. Berger J. noted that, in the application before him, it was assumed that the issuance of subpoenas triggered a breach of s. 7 of the Canadian Charter of Rights and Freedoms. He indicated, however, that it "would be dangerous ... to now predict what evidence will be elicited from each applicant". Citing Re Praisoody (1990), 1 O.R. (3d) 606 (Gen. Div.), 61 C.C.C. (3d) 404 (sub nom. R. v. Devasagayam), Berger J. stated: "While I agree that within s. 7 a balancing of interests must occur to determine whether there is a violation of fundamental justice, I prefer the view that there can be no breach until the proposed witness has testified" (p. 286).
XV. In focusing on the moment of compelled testimony, as opposed to the moment at which compelled testimony or derivative evidence is tendered at subsequent proceedings, Berger J. acknowledged the potential contrast between his approach and that of La Forest J. in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, in that La Forest J. suggested that "there can really be no breach of the Charter until unfair evidence is admitted" (p. 559). But Berger J. stated (at pp. 286-87):
In my view, the testimony of an applicant which may not be admitted at his subsequent trial may, none the less, confer an unfair advantage upon the Crown and trigger a Charter breach. It is always, at the very least, an advantage for the Crown to know in advance what the testimony of an accused would be if he should subsequently elect to testify at his own trial. It matters not whether that testimony is inculpatory or exculpatory; it matters not whether that testimony is damning or innocuous. It is still an advantage for the Crown to know ....The relevant inquiry will then be whether, in all of the circumstances, the advantage thereby gained operates so as to violate the principles of fundamental justice and to deny the accused a fair trial. [Emphasis in original.]
Berger J. concluded that a Charter breach could be triggered only at the moment of compelled testimony, and not at the moment when a subpoena is issued. He indicated that further contextual elements, unknown at the time of the application, would then fall to be considered.
XVI. Berger J. discussed these issues in relation to those applicants who appeared before him already accused of the alleged offence, and thus refused to quash the subpoenas issued against them. He refused, for the same reasons, to quash the subpoenas issued against those applicants who were not then charged with the alleged offence.
XVII. Finally, Berger J. refused to assess the constitutionality of s. 5 of the Canada Evidence Act. He noted that the applicants had failed to challenge ss. 698, 699, or 700 of the Criminal Code, R.S.C., 1985, c. C-46, pursuant to which the subpoenas were issued. Also, he noted that no evidence had been called to demonstrate that questions posed might tend to incriminate the subpoenaed witnesses. He concluded, "[o]nce again, the context has yet to be revealed" (p. 288).
XVIII. Berger J. dismissed the application.
Court of Queen's Bench of Alberta (McFadyen J.)
XIX. The relevant portion of McFadyen J.'s oral reasons state, in full:
I dismiss the application for the reasons outlined by Justice Berger in his judgment in this matter and I adopt his reasons in that regard.
Alberta Court of Appeal (per curiam) (1992), 75 C.C.C. (3d) 445
XX. The Court of Appeal examined cases cited by the appellants, but noted that "the appellants' application for an order quashing the subpoenas in this case was made under s. 24(1) [of the Charter]" (p. 447). The court then followed R. v. Paquette (1987), 38 C.C.C. (3d) 353 (Alta. C.A.), where Stevenson J.A. found that, although provincial superior courts are courts of competent jurisdiction for the purposes of s. 24(1) of the Charter, an appeal will lie to a court of appeal only if the Criminal Code so provides (where proceedings are criminal in nature) or where the proceeding is a prerogative one.
XXI. The Court of Appeal held that, in respect of Berger J.'s refusal to quash the subpoenas, the proceeding was clearly criminal in nature, since the subpoenas were issued under the authority of the Criminal Code. In so far as the Criminal Code provides no right of appeal, and in so far as no prerogative relief was sought, the court held that the appellants had no right of appeal.
XXII. In respect of Berger J.'s refusal to consider the constitutionality of s. 5 of the Canada Evidence Act, the Court of Appeal concluded (at p. 448):
Again the appellants do not have the right to appeal from this decision. This proceeding in so far as it relates to this issue is clearly criminal in nature. The concern of the appellants is that as a result of s. 5, witnesses may incriminate themselves. The appellants did not seek any relief other than a declaration that s. 5 was inconsistent with s. 7 of the Charter, and therefore of no force or effect under s. 52 of the Constitution Act, 1982. There is nothing in the Criminal Code or in the Charter which gives them the right to appeal from a refusal to grant a declaration.
XXIII. The Court of Appeal dismissed the appeal for want of jurisdiction.
IV. Issues
XXIV. There are two issues in this appeal:
1.Upon what basis does this Court have jurisdiction to hear the appeal?
2.Are persons separately charged with an offence, and persons suspected of an offence, compellable as witnesses at the preliminary inquiries and criminal trials of other persons charged with the same offence, or would compellability in this context violate s. 7 of the Charter?
XXV. On March 30, 1993, the following constitutional questions were stated:
1.[Does] s. 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5, infringe[] s. 7 of the Canadian Charter of Rights and Freedoms?
2.If the answer to question 1 is affirmative, is the limitation one which is reasonable, prescribed by law, and demonstrably justified pursuant to s. 1 of the Charter?
V. Analysis
A. Upon what basis does this Court have jurisdiction to hear the appeal?
XXVI. The jurisdictional issue raised in this case is substantially similar to that addressed by the Court in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. On its specific facts, this appeal quite closely resembles the situation in Primeau, the reasons of which have been released concurrently with this appeal.
XXVII. In Dagenais, Lamer C.J., writing for the majority, elaborated the appropriate channels to follow in order to challenge the validity of a publication ban. The procedures vary depending on the status of the person challenging the order, that is, whether a party or third party is involved. For parties, the accused and the Crown, they must apply for relief to the trial judge, or to the level of court having jurisdiction to hear the trial, if known, or otherwise to a superior court judge. An appeal of such a decision must await the end of the trial.
XXVIII. For third parties to a criminal proceeding, the type of recourse to seek is dictated by the court issuing the order. A provincial court order should be challenged by an application to a superior court for the extraordinary remedy of certiorari. This decision can then be appealed pursuant to s. 784(1) of the Criminal Code. A superior court order can be challenged by seeking leave to appeal directly to this Court pursuant to s. 40(1) of the Supreme Court Act, R.S.C., 1985, c. S-26.
XXIX. The order at issue in this appeal is the issuance of subpoenas to the appellants by the Alberta Provincial Court. The Court of Appeal for Alberta rejected the appeal launched by the appellants pursuant to s. 813 of the Criminal Code, because of a lack of jurisdiction to hear the appeal. The Court cited the absence of a statutory right of appeal in the Criminal Code as fatal to the appellants' application. It is significant that the Court of Appeal considered that the appellants had in essence made an application for relief based solely on s. 24(1) of the Charter. It based this finding on the fact that the appellants had effectively abandoned their application for prohibition, by not pleading it before Berger J., and that Berger J. had based his decision solely on s. 24(1) of the Charter.
XXX. In the light of its finding that the present application was made solely pursuant to s. 24(1) of the Charter, the Court of Appeal held that no right of appeal lay from the decision of Berger J. Neither the Criminal Code, nor the Charter (as interpreted in Mills v. The Queen, [1986] 1 S.C.R. 863) provide for such a right. As such, the Court of Appeal decided it lacked jurisdiction to hear the appeal.
XXXI. In the case at bar, as in Primeau, all the appellants, excluding Jobin for the moment, are third parties. Each appellant, excluding Jobin, is seeking to challenge a subpoena issued by the Alberta Provincial Court requiring him to testify at either the preliminary inquiry or the trial of a person accused of the same indictable offence as that with which he is either charged or suspected.
XXXII. Given that the order in question emanates from a provincial court, the proper procedure to follow, as laid out in Dagenais, is to apply to a superior court judge for the issuance of a writ of certiorari. As noted in Dagenais, an immediate appeal becomes possible from an order refusing to grant certiorari through the operation of s. 784(1) of the Criminal Code.
XXXIII. As in Primeau, we are faced with a situation where the appellants have not technically complied with the procedures set out in Dagenais. In our view, however, the jurisdictional question can be resolved in much the same way and for the same reasons as it was solved in Primeau. Given that neither the appellants, nor the Court of Appeal had the benefit of this Court's reasons in Dagenais, we find that it is sufficient that the appellants applied for s. 24(1) Charter relief, which by its nature would be included in the expanded remedial scope of certiorari described in Dagenais. The Court of Appeal therefore did have jurisdiction to hear the appeal, pursuant to s. 784(1) of the Criminal Code. The jurisdiction of this Court follows naturally from the decision of the Court of Appeal, pursuant to s. 40(1) of the Supreme Court Act and there is no need to examine the alternative jurisdictional grounds on which leave to appeal was granted.
XXXIV. The application for leave to appeal also sought to appeal from the judgment of McFadyen J. who dismissed the application of the appellants, other than Jobin, for the reasons of Berger J. It is not necessary to decide whether an appeal lies from that judgment to this Court since the principles that apply to determine the substantive issue raised by the decision of Berger J. are also determinative in respect of the judgment of McFadyen J.
B.Are persons separately charged with an offence, and persons suspected of an offence, compellable as witnesses at the preliminary inquiries and criminal trials of other persons charged with the same offence, or would compellability in this context violate s. 7 of the Charter?
XXXV. In refusing to quash the subpoenas confronting him, Berger J. suggested that the liberty interest under s. 7 is not engaged until the moment that testimony occurs, on the theory that it is relevant to consider context at that time. For the reasons we expressed in S. (R.J.), supra, the liberty interest is engaged when a deprivation is imminent, and the applicants before Berger J. applied for relief at the appropriate time.
XXXVI. The relief they sought, however, was not properly available to them. The appellants claimed a right to silence on the basis that they were entitled to claim this right by virtue of a status, namely, "accused person", "suspected person", or "unindicted co-conspirator". This focus on status occludes the focus required by the Charter, which is a focus on the purpose or character of the proceedings. Thus, the fact that some of the appellants were not accused of anything at the time of their application is not of primary importance. It also follows from the reasons in S. (R.J.), as elaborated on in British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3, released concurrently, and Primeau, supra, that there is no meaningful difference between subpoenas issued in respect of preliminary inquiries and those issued in respect of Jobin's criminal trial. Finally, there is no evidence to suggest that the subpoenas issued in this case can be regarded as a form of pre-trial interrogation in respect of any of the appellants or are otherwise objectionable, such that a different analysis might have obtained for the reasons expressed in S. (R.J.) and further elaborated on in Branch.
VI. Disposition
XXXVII. All of the persons subpoenaed to testify were properly compellable. At subsequent proceedings against any of them, each would be entitled to the protections against self-incrimination described in S. (R.J.) as refined in Branch.
XXXVIII. We would answer the constitutional questions stated on March 30, 1993, in the following way:
1.[Does] s. 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5, infringe[] s. 7 of the Canadian Charter of Rights and Freedoms?
Answer: No.
2.If the answer to question 1 is affirmative, is the limitation one which is reasonable, prescribed by law, and demonstrably justified pursuant to s. 1 of the Charter?
Answer: It is not necessary to answer this question.
XXXIX. We would dismiss the appeal.
//L'Heureux-Dubé J.//
The following are the reasons delivered by
L'Heureux-Dubé J. -- This case raises the same issues as are raised in the companion case of R. v. Primeau, [1995] 2 S.C.R. 60. As well, this case raises the additional issue of the constitutional validity of s. 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5. I have read the joint reasons of my colleagues Sopinka and Iacobucci JJ. and agree that this appeal should be dismissed. I reach this conclusion, however, by a different route.
I. I say at the outset, as my colleagues point out and as my concurring reasons in R. v. S. (R.J.), [1995] 1 S.C.R. 451, make clear, that the "primary" and "secondary" appellants, to use my colleagues' terminology, are compellable witnesses at each other's preliminary inquiries and criminal trials. However, if compelled to testify, they are entitled to the protection of s. 13 of the Canadian Charter of Rights and Freedoms and s. 5 of the Canada Evidence Act, which, like my colleagues, I find does not infringe the Charter. In addition, should the circumstances be of the kind I outlined in my concurring reasons in S. (R.J.), the appellants could invoke the residual protection of s. 7 of the Charter. I agree, though, with my colleagues that "there is no evidence to suggest that the subpoenas issued in this case can be regarded as a form of pre-trial interrogation in respect of any of the appellants or are otherwise objectionable" (p. 93). Accordingly, I find that at this stage, the subpoena stage, none of the appellants could successfully invoke the residual protection of s. 7 outlined in my reasons in S. (R.J.) to quash their subpoenas. As I emphasized in S. (R.J.), it will be rare indeed that the residual protection of s. 7 could be successfully invoked at the subpoena stage. In this respect, I agree with Berger J., who dealt with the appellants' first application to quash subpoenas, when he stated: "[i]t would be dangerous. . . to now predict what evidence will be elicited from each applicant" and "I prefer the view that there can be no breach until the proposed witness has testified" ((1991), 66 C.C.C. (3d) 281, at p. 286).
II. As for the issue of jurisdiction, I refer to my reasons in the companion case of Primeau, released concurrently with this decision. For the reasons outlined in Primeau, I conclude that the appellants could appeal the decision of Berger J. to the Court of Appeal and could appeal, with leave, the decision of the Court of Appeal to this Court. As regards a direct appeal from the decision of McFadyen J., who dealt with the appellants' second application to quash subpoenas, I agree with my colleagues that "[i]t is not necessary to decide whether an appeal lies from that judgment to this Court since the principles that apply to determine the substantive issue raised by the decision of Berger J. are also determinative in respect of the judgment of McFadyen J." (p. 92).
III. For the reasons outlined above, I would dismiss the appeal.
Appeal dismissed.
Solicitors for the appellants: Ruby & Edwardh, Toronto; Rubin & Maisonville, Vancouver; and Nakatsuru & Doucette, Toronto.
Solicitor for the respondent: The Department of the Attorney General, Edmonton.
Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.
Solicitor for the intervener the Attorney General of Quebec: The Department of Justice, Ste‑Foy.
Solicitor for the intervener the Attorney General of Manitoba: The Department of Justice, Winnipeg.
Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.
Solicitor for the intervener the Attorney General for Saskatchewan: W. Brent Cotter, Regina.
Solicitors for the interveners Branch and Levitt: Rees-Thomas & Company, Richmond, B.C.