Supreme Court Judgments

Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425

 

Thomson Newspapers Limited,

Brian W. Slaight, Peter T. Bogart

and Paul E. Weeks         Appellants

 

v.

 

Director of Investigation and

Research, Combines Investigation Act,

Restrictive Trade Practices Commission

and the Attorney General of Canada                                                                              Respondents

 

and

 

The Attorney General for Ontario,

the Attorney General of Quebec,

the Attorney General for New Brunswick

and the Attorney General for Alberta                                                                             Interveners

 

indexed as:  thomson newspapers ltd. v. canada (director of investigation and research, restrictive trade practices commission)

 

File No.:  20228.

 

1988:  November 1; 1990:  March 29.

 

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

 

on appeal from the court of appeal for ontario

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 7  of the Charter 

 

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

 

     The power conferred by s. 17 of the Act to compel any person to give oral testimony constitutes a deprivation of liberty but such compulsion, in itself, does not violate the principles of fundamental justice.  The right of an accused or a suspect to remain silent, while extending beyond the trial itself, does not extend to those who are ordered to testify in a proceeding such as that provided by s. 17 of the Act.  The power to compel testimony is important to the overall effectiveness of the investigative machinery established by the Act.  An absolute right to refuse to answer questions in a s. 17 inquiry would represent a dangerous and unnecessary imbalance between the rights of the individual and the community's legitimate interest in discovering the truth about the existence of practices against which the Act was designed to protect the public.  The section 17 inquiries are inquisitorial rather than adversarial in nature.  They are investigations in which no final determination as to criminal liability is reached.  The right to prevent the subsequent use of compelled self-incriminating testimony protects an individual from being "conscripted against himself" without simultaneously denying an investigator's access to relevant information.  It strikes a just and proper balance between the interests of the individual and the state -- an important factor that must be taken into account in defining the content of the principles of fundamental justice.  While a corporation cannot avail itself of the protection offered by s. 7  of the Charter , and in respect of the right against compelled self-incrimination, is incapable of being forced to testify against itself, the right against self‑incrimination is still available to those who are compelled to give testimony as the representatives of a corporation.  Regardless of whether they give testimony in their representative or personal capacities, those who are compelled to testify under s. 17  are subjected to a direct and real violation of their own liberty.

 

    While the admission of compelled testimony is prohibited, complete immunity against the use of derivative evidence is not required by the principles of fundamental justice.  The use of derivative evidence obtained as a result of the s. 17 power in subsequent trials would not generally affect the fairness of those trials.  Derivative evidence, because of its independent existence, can be found independently of the compelled testimony.  There is thus nothing unfair in admitting relevant evidence of this kind against a person if it would have been found or appreciated apart from that person's compelled testimony under s. 17, a proposition consistent with the cases under s. 24(2)  of the Charter .  If the evidence would not have been found or appreciated apart from such compelled testimony, it should, in the exercise of the trial judge's discretion to exclude unfair evidence, be excluded since its admission would violate the principles of fundamental justice.  The admission of the derivative evidence would in these circumstances tend to render the trial process unfair; the accused would have to answer a case that he was forced to make stronger than it would otherwise have been.  Unfairness is avoided by its exclusion.  It follows that the immunity against use of compelled testimony provided by s. 20(2) of the Act together with the trial judge's power to exclude derivative evidence where appropriate is all that is necessary to satisfy the requirements of the Charter .

 

    Per L'Heureux‑Dubé J.:  While the constitutionality of s. 17 of the Act is attacked here, one must not lose sight of the fact that corporations cannot claim the protection of s. 7  of the Charter  because they are, on principle, excluded from the ambit of that constitutional guarantee.  Section 7 therefore cannot be invoked by the individual appellants acting as representatives of the corporation.  To allow them to do so would grant corporations rights which they cannot enjoy.  With respect to witnesses qua individuals, an order to testify under s. 17 of the Act may constitute a violation of their rights of "liberty and security of the person" within the meaning of s. 7  of the Charter , but such violation would be effected in accordance with the principles of fundamental justice.  Under section 7, "fundamental justice" requires a protection coextensive with the individual's testimonial participation in the investigation.  Use immunity satisfies this requirement and such protection is afforded by s. 20(2) of the Act.  This protection serves the end of preventing the state from using incriminating evidence which was obtained by the individual himself, while at the same time tailoring the protection to what our system considers to be the appropriate boundary of fairness in the criminal process.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Section 8  of the Charter 

 

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

 

     The stringent standards of reasonableness articulated in Hunter, and usually applicable to criminal investigations, were inappropriate to determine the reasonableness of a seizure under s. 17 in light of the limited scope of the s. 17 power to order the production of documents and the limited privacy interests with regard to these documents.  The application of the Hunter standards would severally hamper and perhaps render impossible the effective investigation of anti-competitive offences.

 

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

 

    An order to testify under s. 17 of the Act does not infringe s. 8  of the Charter .  To hold that an order to testify constitutes a "seizure", presumably a "seizure" of one's thoughts, would be to stretch that word beyond any meaning.  The word "seizure" under s. 8 should be restricted to tangible things.

 

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

 

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

 

    Sections 17(1) and 17(4) of the Act cannot be saved under s. 1  of the Charter .  In the absence of any evidence to show that the objectives of the Act would be frustrated by adherence to the Hunter criteria, it is impossible to conclude that the s. 8 right of the appellants was minimally impaired.

 

Cases Cited

 

By La Forest J.

 

    Distinguished:  Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Amway Corp., [1989] 1 S.C.R. 21; considered:  R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 000; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Black, [1989] 2 S.C.R. 138; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946); referred to:  R. v. Dyment, [1988] 2 S.C.R. 417; Re Alberta Human Rights Commission and Alberta Blue Cross Plan (1983), 1 D.L.R. (4th) 301; R. v. Rao (1984), 46 O.R. (2d) 80; Re Belgoma Transportation Ltd. and Director of Employment Standards (1985), 51 O.R. (2d) 509; R. v. Quesnel (1985), 12 O.A.C. 165; Bertram S. Miller Ltd. v. R., [1986] 3 F.C. 291; R. v. Bichel, [1986] 5 W.W.R. 261; Attorney General of Canada v. Canadian National Transportation Ltd., [1983] 2 S.C.R. 206; R. v. Wetmore, [1983] 2 S.C.R. 284; R. v. Chiasson (1982), 135 D.L.R. (3d) 499 (N.B.C.A.), aff'd [1984] 1 S.C.R. 266; R. v. Morgentaler, [1988] 1 S.C.R. 30; Hale v. Henkel, 201 U.S. 43 (1906); Wilson v. United States, 221 U.S. 361 (1911); United States v. Morton Salt Co., 338 U.S. 632 (1950); Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; Federal Trade Commission v. Texaco, Inc., 555 F.2d 862 (1977); People v. Allen, 103 N.E.2d 92 (1952); Federal Trade Commission v. Tuttle, 244 F.2d 605 (1957); Adams v. Federal Trade Commission, 296 F.2d 861 (1961); People v. Dorr, 265 N.E.2d 601 (1971); Federal Trade Commission v. American Tobacco Co., 264 U.S. 298 (1924); R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Jones, [1986] 2 S.C.R. 284; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. N.M. Paterson and Sons Ltd., [1980] 2 S.C.R. 679; Kastigar v. United States, 406 U.S. 441 (1972); R. v. Potvin, [1989] 1 S.C.R. 525; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wiggins, [1990] 1 S.C.R. 62; Haywood Securities Inc. v. Inter-Tech Resource Group Inc. (1985), 24 D.L.R. (4th) 724; R. v. Ross, [1989] 1 S.C.R. 3; Counselman v. Hitchcock, 142 U.S. 547 (1892); Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Sang, [1980] A.C. 402; Lucier v. The Queen, [1982] 1 S.C.R. 28; R. v. Williams (1985), 44 C.R. (3d) 351; R. v. Rowbotham (1988), 63 C.R. (3d) 113.

 

By L'Heureux‑Dubé J.

 

    Applied:  Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Amway Corp., [1989] 1 S.C.R. 21; distinguished:  Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Kastigar v. United States, 406 U.S. 441 (1972); considered:  Faber v. The Queen, [1976] 2 S.C.R. 9; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; referred to:  Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; R. v. Hoffmann‑La Roche Ltd. (Nos. 1 and 2) (1981), 33 O.R. (2d) 694; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Weidman v. Shragge (1912), 46 S.C.R. 1; Stinson‑Reeb Builders Supply Co. v. The King, [1929] S.C.R. 276; Container Materials, Ltd. v. The King, [1942] S.C.R. 147; Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403; Aetna Insurance Co. v. The Queen, [1978] 1 S.C.R. 731; Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; R. v. Stewart, [1988] 1 S.C.R. 963; R. v. Beare, [1988] 2 S.C.R. 387; R. v. N.M. Paterson and Sons Ltd., [1980] 2 S.C.R. 679; R. v. Coote (1873), L.R. 4 P.C. 599; R. v. Sloggett (1856), Dears. 656, 169 E.R. 885; R. v. Scott (1856), Dears. & Bell 47, 169 E.R. 909; Tass v. The King, [1947] S.C.R. 103; Rothman v. The Queen, [1981] 1 S.C.R. 640; Rice v. Connolly, [1966] 2 Q.B. 414; Dedman v. The Queen, [1985] 2 S.C.R. 2; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Wray, [1971] S.C.R. 272; R. v. Woolley (1988), 40 C.C.C. (3d) 531; R. v. Black, [1989] 2 S.C.R. 138; Marcoux v. The Queen, [1976] 1 S.C.R. 763; R. v. Altseimer (1982), 38 O.R. (2d) 783; Wilson v. United States, 221 U.S. 361 (1911); Dreier v. United States, 221 U.S. 394 (1911); United States v. White, 322 U.S. 694 (1944); Bellis v. United States, 417 U.S. 85 (1974); Braswell v. United States, 108 S. Ct. 2284 (1988); Hale v. Henkel, 201 U.S. 43 (1906); R. v. Dyment, [1988] 2 S.C.R. 417; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 000.

 

By Sopinka J. (dissenting in part)

 

    General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Dubois v. The Queen, [1985] 2 S.C.R. 350; Blunt v. Park Lane Hotel, Ltd., [1942] 2 K.B. 253; R. v. Esposito (1985), 24 C.C.C. (3d) 88; R. v. Symonds (1983), 9 C.C.C. (3d) 225; R. v. Eden, [1970] 3 C.C.C. 280; R. v. Engel (1981), 9 Man. R. (2d) 279; R. v. Minhas (1986), 53 C.R. (3d) 128; R. v. Christie, [1914] A.C. 545; R. v. Clarke (1979), 33 N.S.R. (2d) 636; R. v. Hansen (1988), 46 C.C.C. (3d) 504; Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; Marcoux v. The Queen, [1976] 1 S.C.R. 763; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Wray, [1971] S.C.R. 272; Mapp v. Ohio, 367 U.S. 643 (1961); United States v. Leon, 468 U.S. 897 (1984); R. v. Woolley (1988), 40 C.C.C. (3d) 531; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Re Nelles and Grange (1984), 46 O.R. (2d) 210; R. v. Amway Corp., [1989] 1 S.C.R. 21; R. v. Collins, [1987] 1 S.C.R. 265; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Gaich (1956), 24 C.R. 196; R. v. Hannam, [1964] 2 C.C.C. 340; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; R. v. Container Materials Ltd., [1940] 4 D.L.R. 293; R. v. Hashem (1940), 73 C.C.C. 124; R. v. Famous Players, [1932] O.R. 307; Braswell v. United States, 108 S. Ct. 2284 (1988); Ziegler v. Hunter, [1984] 2 F.C. 608; Re Belgoma Transportation Ltd. and Director of Employment Standards (1984), 47 O.R. (2d) 309; Tyler v. M.N.R., [1989] 1 C.T.C. 153; Re Gershman Produce Co. and Motor Transport Board (1985), 22 D.L.R. (4th) 520; Re Alberta Human Rights Commission and Alberta Blue Cross Plan (1983), 1 D.L.R. (4th) 301; Re Reich and College of Physicians and Surgeons of Alberta (No. 2) (1984), 8 D.L.R. (4th) 696; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. McKinlay Transport Ltd. (1987), 62 O.R. (2d) 757, aff'd [1990] 1 S.C.R. 000; Canadian Bank of Commerce v. Attorney General of Canada, [1962] S.C.R. 729; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Director of Investigation and Research v. Restrictive Trade Practices Commission (1985), 4 C.P.R. (3d) 59; Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; R. v. Simmons, [1988] 2 S.C.R. 495.

 

By Wilson J. (dissenting)

 

    Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Oakes, [1986] 1 S.C.R. 103; Curr v. The Queen, [1972] S.C.R. 889; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946); Kastigar v. United States, 406 U.S. 441 (1972); R. L. Crain Inc. v. Couture (1983), 6 D.L.R. (4th) 478; Ziegler v. Hunter, [1984] 2 F.C. 608 (C.A.), leave to appeal refused, [1984] 1 S.C.R. xiv; Re Transpacific Tours Ltd. and Director of Investigation and Research (1985), 25 D.L.R. (4th) 202; Haywood Securities Inc. v. Inter‑Tech Resource Group Inc. (1985), 62 B.C.L.R. 183 (B.C.S.C.), aff'd (1985), 24 D.L.R. (4th) 724 (B.C.C.A.), leave to appeal granted, [1986] 1 S.C.R. x; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Whyte, [1988] 2 S.C.R. 3; Rice v. Connolly, [1966] 2 Q.B. 414; Lamb v. Munster (1882), 10 Q.B.D. 110; Ullmann v. United States, 350 U.S. 422 (1956); Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1970); Pyneboard Proprietary Ltd. v. Trade Practices Commission (1983), 152 C.L.R. 328; Sorby v. Commonwealth of Australia (1983), 152 C.L.R. 281; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Brydges, [1990] 1 S.C.R. 190.

 

Statutes and Regulations Cited

 

Act to amend the Canada Evidence Act, 1893, S.C. 1898, c. 53.

 

Act to further amend the Canada Evidence Act, 1893, S.C. 1901, c. 36.

 

Canada Business Corporations Act , R.S.C., 1985, c. C‑44 , ss. 15 , 16 .

 

Canada Evidence Act, 1893, S.C. 1893, c. 31, s. 5.

 

Canada Evidence Act, R.S.C. 1970, c. E‑10 [now R.S.C., 1985, c. C‑5 ], ss. 4(1) , 5 .

 

Canadian Bill of Rights, R.S.C. 1970, App. III, ss. 1(a), 2(d).

 

Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 8 , 11( c ) , 13 , 24(2) .

 

Combines Investigation Act, R.S.C. 1970, c. C‑23, ss. 8 [am. 1974‑75‑76, c. 76, s. 4], 9, 10, 14(1), 15, 17, 18 [am. idem, s. 6], 20 [am. idem, s. 8; am. 1985, c. 19, s. 187 (schedule V (item 3))], 22, 31.4 [ad. 1974-75-76, c. 76, s. 12], 32 [am. idem, s. 14], 32.2 [ad. idem, s. 15], 33, 34(1)(c) [am. 1974-75-76, c. 76, s. 16(1)], 36 [rep. & sub. idem, s. 18], 36.1 [ad. idem], 36.3 [idem], 36.4 [idem], 37.1 [idem], 37.2 [idem], 38 [idem], 40, 41, 44(2) [rep. & sub. 1974-74-76, c. 76, s. 19], 45 [am. idem, s. 21], 46.1 [ad. idem, s. 24].

 

Combines Investigation Act, S.C. 1910, c. 9, s. 32.

 

Constitution Act, 1867 , s. 91 .

 

Constitution Act, 1982 , s. 52(1) .

 

Income Tax Act, R.S.C. 1952, c. 148 [am. 1970-71-72, c. 63, s. 1], ss. 231(3), 239.

 

Authors Cited

 

Berger, Mark.  Taking the Fifth:  The Supreme Court and the Privilege Against Self-Incrimination.  Toronto:  Lexington Books, 1980.

 

Canada.  Consumer and Corporate Affairs Canada.  Combines Investigation Act Amendments 1984:  Background Information and Explanatory Notes, 1984.

 

Canada.  Law Reform Commission.  Report 3.  Our Criminal Law.  Ottawa:  The Commission, 1976.

 

Canada.  Law Reform Commission.  Working Paper 16.  Criminal Responsibility for Group Action.  Ottawa:  The Commission, 1976.

 

Canada.  Law Reform Commission.  Working Paper 17.  Commissions of Inquiry:  A New Act.  Ottawa:  The Commission, 1977.

 

Chevrette, François.  "Protection Upon Arrest or Detention and Against Retroactive Penal Law".  In Gérald‑A. Beaudoin and Ed Ratushny, eds., The Canadian Charter of Rights and Freedoms , 2nd ed.  Toronto:  Carswells, 1989.

 

Davis, Kenneth Culp.  Administrative Law Text, 3rd ed.  St. Paul, Minn.:  West Publishing Co., 1972.

 

de Montigny, Yves.  "La protection contre les fouilles, les perquisitions et les saisies abusives:  un premier bilan" (1989), 49 R. du B. 53.

 

Delisle, R. J.  "Evidence -‑ Judicial Discretion and Rules of Evidence -‑ Canada Evidence Act, s. 12 :  Corbett v. The Queen" (1988), 67 Can. Bar Rev. 706.

 

Gorecki, Paul K. and W. T. Stanbury.  "Canada's Combines Investigation Act:  The Record of Public Law Enforcement, 1889‑1976".  In J. Robert S. Prichard, W. T. Stanbury and Thomas A. Wilson, eds., Canadian Competition Policy:  Essays in Law and Economics.  Toronto:  Butterworths, 1979.

 

Kintner, Earl W. and William P. Kratzke.  Federal Antitrust Law, vol. VI. Cincinnati:  Anderson Publishing Co., 1986.

 

LaFave, Wayne R.  Search and Seizure:  A Treatise on the Fourth Amendment, vol. 2, 2nd ed.  St. Paul, Minn.:  West Publishing Co., 1987.

 

Ouellette, Yves.  "La Charte canadienne  et les tribunaux administratifs" (1984), 18 R.J.T. 295.

 

Paciocco, David M.  Charter Principles and Proof in Criminal Cases.  Toronto:  Carswells, 1987.

 

Ratushny, Ed.  Self‑Incrimination in the Canadian Criminal Process.  Toronto:  Carswells, 1979.

 

Reid, Alan D. and Alison Harvison Young.  "Administrative Search and Seizure Under the Charter " (1985), 10 Queen's L.J. 392.

 

Rostow, Eugene V.  Planning for Freedom:  The Public Law of American Capitalism.  New Haven:  Yale University Press, c<o 1959, 1962.

 

Wigmore, John Henry.  Evidence in Trials at Common Law, vol. 8.  Revised by John T. McNaughton.  Boston:  Little, Brown & Co., 1961.

 

Wilson, Stephen V. and A. Howard Matz.  "Obtaining Evidence for Federal Economic Crime Prosecutions:  An Overview and Analysis of Investigative Methods" (1977), 14 Am. Crim. L. Rev. 651.

 

    APPEAL from a judgment of the Ontario Court of Appeal (1986), 57 O.R. (2d) 257, 17 O.A.C. 330, 34 D.L.R. (4th) 413, 30 C.C.C. (3d) 145, 55 C.R. (3d) 19, 12 C.P.R. (3d) 97, dismissing appellants' appeal and allowing respondents' cross‑appeal from a judgment of J. Holland J. (1986), 54 O.R. (2d) 143, 26 D.L.R. (4th) 507, 25 C.C.C. (3d) 233, 9 C.P.R. (3d) 72, 21 C.R.R. 1, declaring ss. 17(1) and 17(4) of the Combines Investigation Act unconstitutional.  Appeal dismissed, Lamer and Sopinka JJ. dissenting in part and Wilson J. dissenting.

 

    H. Lorne Morphy, Q.C., and John B. Laskin, for the appellants.

 

    Bryan Finlay, Q.C., and J. Gregory Richards, for the respondents.

 

    Leah Price and Timothy Macklem, for the intervener the Attorney General for Ontario.

 

    Jean Bouchard and Gilles Laporte, for the intervener the Attorney General of Quebec.

 

    Bruce Judah, for the intervener the Attorney General for New Brunswick.

 

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

 

//Lamer J.//

 

    The following are the reasons delivered by

 

    Lamer J. (dissenting in part) -- I have had the benefit of reading the reasons for judgment prepared by my colleagues Justice Wilson, Justice La Forest, Justice L'Heureux‑Dubé and Justice Sopinka.  I agree with Wilson, La Forest and Sopinka JJ. that in this appeal s. 7  of the Canadian Charter of Rights and Freedoms  is engaged because human beings as well as a corporation are directly involved.  I also agree with all of my colleagues that the specific enumerations in ss. 11( c )  and 13  of the Charter  are not necessarily exhaustive of the protection afforded by s. 7, and do not prevent residual content being given to s. 7.  Further, I agree with Wilson J. in respect of her analysis of s. 8  of the Charter , and with the conclusion that ss. 17(1) and 17(4) of the Combines Investigation Act, R.S.C. 1970, c. C‑23, are not saved by s. 1  of the Charter .  I would, accordingly declare s. 17 of the Combines Investigation Act to be inconsistent with s. 8  of the Charter  to the extent that it compels the production of documents, and is therefore of no force or effect under s. 52(1)  of the Constitution Act, 1982 . 

 

    As regards s. 7, the following comments are made on the assumption that I agree with my colleague Wilson J.'s finding and analysis in support thereof that it is and has long been in Canada a principle of fundamental justice that a witness may refuse to give an incriminating answer.  This finding inferentially leads us to the conclusion, and a far reaching one at that, that s. 5(1) of the Canada Evidence Act, R.S.C. 1970, c. E‑10 (now R.S.C., 1985, c. C‑5 ), is a limit prescribed by law that may or may not be justified as reasonable in a free and democratic society following a s. l analysis, having regard to s. 5(2)  of the Canada Evidence Act and s. 13  of the Charter .

 

    I could not, with respect, follow my colleague who, at the invitation of the appellants, then proceeds to a s. 1 analysis of s. 17 of the Combines Investigation Act to declare it inoperable.  My reasons are as follows.  Section 17 empowers the Commissioner to subpoena, administer the oath and question the witness.  It also empowers the Commissioner to find in contempt and punish the witness that refuses to testify.

 

    A person who is prosecuted or facing a show cause for contempt is brought within the protection of s. 7 as that person is in jeopardy of being deprived of his or her right to liberty and security of the person.  The protection afforded is that of not being deprived thereof except in accordance with the principles of fundamental justice.  In this case, no one is suggesting that the contempt power or the Criminal Code  offences for which a recalcitrant witness may be prosecuted offend the principles of fundamental justice.  What can only be argued, irrespective of the parties' approach, is that s. 17 violates s. 7  of the Charter  to the extent that it enables a Commissioner to punish for contempt a witness who refuses to give an answer to a question put to him, on the ground that it may tend to incriminate him.  Section 17   empowers generally to punish for contempt witnesses who refuse to answer.  That does not violate s. 7.  It is s. 20 , in fact the first few lines of s. 20(2)  which takes away the common law right to refuse to give incriminatory answers, that brings the refusal to answer within contempt and that really triggers the violation.  Indeed, if s. 20 of the Combines Investigation Act and s. 5(1)  of the Canada Evidence Act did not exist such a witness's liberty would not be put in jeopardy by s. 17 .  A challenge under s. 52  of the Constitution Act, 1982  grounded on s. 7 must of necessity, given the particular structure of s. 7, attack the law that allegedly limits the principle of fundamental justice; deprivations by law of life, liberty, or security of the person are not the limits by law referred to under s. 1.  It is the limit by law to the principles of fundamental justice that takes us to s. 1, and it is the law that imposes that limit that is then put on trial.  All this is to say that the appellants, in this case, have throughout, in my respectful view, challenged the wrong section.  They should have challenged the constitutionality of s. 20(2) which, in almost the exact language of s. 5(1)  of the Canada Evidence Act, states:

 

    20.  . . .

 

    (2)  No person shall be excused from attending and giving evidence and producing books, papers, records or other documents, in obedience to the order of a member of the Commission, on the ground that the oral evidence or documents required of him may tend to criminate him or subject him to any proceeding or penalty, but no oral evidence so required shall be used or receivable against such person in any criminal proceedings thereafter instituted against him, other than a prosecution under section 121  of the Criminal Code  for perjury in giving such evidence or a prosecution under section 124  of the Criminal Code  in respect of such evidence.

 

Be that as it may, if s. 5(1)  of the Canada Evidence Act did not exist, I would, though reluctantly overlook this, and try to settle the matter through the constitutional challenge of s. 17 .  I would not however, in that event, with respect, do it so broadly as my colleague suggests.  At most, I would declare inoperative only the contempt power granted in s. 17 , and there, only as regards those witnesses who object to answering questions on the ground that the answer would tend to incriminate them.  Though it is somewhat unorthodox to go that route while the "culprit" section is unattacked, I could go that route, were it not for the following two reasons.  First, this collateral attack leads us into inferentially pronouncing upon s. 5(1)  of the Canada Evidence Act even further than the extent to which I referred at the outset of my reasons.  Indeed, the s. 1 analysis of s. 17  carried out by my colleagues is in fact a s. 1 analysis of s. 20 .  Finding that s. 20  through s. 17  fails under s. 1 is inferentially a finding that s. 5(1)  of the Canada Evidence Act is not only a restriction to a principle of fundamental justice but also one that, at least in certain contexts, probably in all, cannot be salvaged under s. 1.  It would be most undesirable that we do this as a result of a challenge of the wrong section of the Combines Investigation Act and without a genuine challenge of s. 5(1)  of the Canada Evidence Act, affording the constitutional validity of that section a full hearing.  Second, this improper s. 52 challenge circumvents a challenge of s. 5(1)  which, quite undoubtedly, would have attracted different interventions from the Attorneys General.  Indeed, if s. 20  did not exist witnesses would be governed by s. 5  of the Canada Evidence Act.  Had the challenge been made to the proper section, that is s. 20 , the first few lines of s. 20(2)  which takes away the right not to answer, would have been declared inoperative.  That finding would have granted the same protection from contempt as limiting, to the extent I suggested earlier, the contempt power under s. 17 , were it not for the fact that there is still in place s. 5(1)  which states in similar language but exactly to the same effect, that which is stated by s. 20(2) .  In other words, to succeed, the appellants had to challenge s. 20(2) of the Combines Investigation Act and s. 5(1)  of the Canada Evidence Act.  They have challenged neither and for this reason, without pronouncing upon the s. 7 issues I find that their s. 7 argument cannot succeed in this case.

 

    I would accordingly, as would my colleague Wilson J., allow the appeal on the basis that s. 17 of the Combines Investigation Act is inconsistent with s. 8  of the Charter  and of no force or effect to the extent that it compels the production of documents.  I would not pronounce on the s. 7 issue since, in my view, it would be improper to do so without a direct challenge to s. 20(2) of the Combines Investigation Act and s. 5  of the Canada Evidence Act.

 

//Wilson J.//

 

    The following are the reasons delivered by

 

    Wilson J. (dissenting) ‑‑ The issue raised in this appeal is whether s. 17 of the Combines Investigation Act, R.S.C. 1970, c. C‑23, is inconsistent with either s. 7  or s. 8  of the Canadian Charter of Rights and Freedoms  and of no force or effect under s. 52(1)  of the Constitution Act, 1982  to the extent of the inconsistency.

 

1.  The Facts

 

    Thomson Newspapers Limited ("Thomson") is a major publication corporation operating across Canada.  Brian W. Slaight is Executive Vice-President and a director of Thomson.  Peter T. Bogart is Vice-President, Finance, Treasurer, and a director of Thomson.  Paul E. Weeks is Thomson's Controller.

 

    On August 16, 1985 the individual appellants were served with Orders to Appear before Richard B. Holden, Vice-Chairman of the Restrictive Trade Practices Commission or a person named by him to be examined under oath and to make production of documents described in the Orders to Appear.  The Orders to Appear were issued by Holden pursuant to s. 17 of the Combines Investigation Act in connection with an inquiry being conducted by the Director of Investigation and Research to determine whether evidence existed that Thomson or its subsidiary companies had committed the indictable offence of predatory pricing contrary to s. 34(1)(c) of the Act at any time between January 1, 1976 and the date of the inquiry.

 

    Thomson was informed of the inquiry and the projected Orders to Appear by letter dated August 16, 1985 from Lawson A. W. Hunter, Director of Investigation and Research.  The inquiry appears to have been in progress since at least July 1978 since during that month representatives of the Director searched and seized documents from the offices of Thomson and its subsidiaries pursuant to s. 10 of the Act in twenty‑two cities in Ontario, Saskatchewan, Alberta and British Columbia.  In July 1983 the Director attempted further searches and seizures but these were quashed by the Federal Court of Canada as it was found that s. 10 of the Act which authorized the searches and seizures was unconstitutional.

 

    By Notice of Application dated October 16, 1985 the appellants applied to the Ontario High Court for a declaration that s. 17 of the Act and the Orders to Appear were in conflict with s. 7  and s. 8  of the Charter  and accordingly of no force or effect.

 

    J. Holland J., in reasons reported at (1986), 54 O.R. (2d) 143,  held that s. 17 of the Act violates s. 8 but not s. 7  of the Charter .  His decision was appealed by the appellants and cross‑appealed by the respondents to the Ontario Court of Appeal.  The Ontario Court of Appeal, in reasons reported at (1986), 57 O.R. (2d) 257, held that s. 17  violated neither section.  Leave to appeal to this Court was granted on June 25, 1987, [1987] 1 S.C.R. xiv.

 

2.  The Issues

 

    The constitutional question set by this Court reads as follows:

 

1.Is section 17 of the Combines Investigation Act, R.S.C. 1970, c. C‑23, inconsistent with the provisions of ss. 7  and 8  of the Canadian Charter of Rights and Freedoms , and therefore of no force or effect?

 

3.  The Courts Below

 

(a)  At Trial

 

    After reviewing the relevant provisions of the Combines Investigation Act and identifying the proper interpretive approach to be taken to the Charter , J. Holland J. turned specifically to the question of whether or not ss. 17(1) and 17(4) of the Act violated s. 8  of the Charter .  He prefaced his analysis with the following remarks at p. 156:

 

Applying Hunter et al v. Southam, s. 8 guarantees a person's entitlement to a reasonable expectation of privacy with respect to his documents and records.  The constitutional validity of a statute which authorizes seizure must focus on the impact which it has upon the subject.  A person's expectation of privacy with respect to his business documents, books and records, is reasonable and considerable.

 

J. Holland J. defined a seizure within the meaning of s. 8  of the Charter  as "the taking hold, by a public authority, of a document or thing belonging to a person against that person's will" (p. 156).  He found that the compulsory production of books and records authorized by ss. 17(1) and 17(4) was therefore a seizure.  In so doing, he rejected the argument which succeeded in Ziegler v. Hunter, [1984] 2 F.C. 608 (C.A.), leave to appeal to the Supreme Court of Canada denied March 8, 1984, [1984] 1 S.C.R. xiv, that compelled production was the equivalent of an administrative subpoena duces tecum.  He stated at p. 158:

 

    It must be accepted that the order here in question was given in what is a criminal proceeding.  While there are a number of ways in which the documents and the information sought to be obtained therefrom may be used, it is, I feel, sufficient that one of those ways is to support a criminal prosecution against the corporation and/or the officers here named in the order to produce.

 

    While the decision of the Federal Court of Appeal, above, is entitled to serious consideration, it is not binding on me and I am of the view that the order here constitutes a seizure within the meaning of that word as it is found in s. 8.  Applying the direction of Hunter v. Southam, it is an invasion of the individual's reasonable expectation of a right to privacy re the documents, and with compulsion built in to enforce production.

 

    Having found that compelled production under s. 17(1) constituted a seizure, the learned trial judge next considered whether the seizure was reasonable.  Applying Hunter v. Southam Inc., [1984] 2 S.C.R. 145, he stated at pp. 160‑61 that:

 

. . . a legislative scheme which allows for seizure of documents and things in the context of a criminal investigation to comply with s. 8  of the Charter , the legislation must provide for:

 

(a)a system of prior authorization, by an entirely neutral and impartial arbiter who is capable of acting judicially in balancing the interests of the State against those of the individual;

 

(b)a requirement that the impartial arbiter must satisfy himself that the person seeking the authorization has reasonable grounds, established upon oath, to believe that an offence has been committed;

 

(c)a requirement that the impartial arbiter must satisfy himself that the person seeking the authorization has reasonable grounds to believe that something which will afford evidence of the particular offence under investigation will be recovered; and

 

(d)a requirement that the only documents which are authorized to be seized are those which are strictly relevant to the offence under investigation.

 

He found that none of these prerequisites were met by s. 17.  He stated at p. 159:

 

There is no requirement for prior authorization by an impartial assessor ‑- indeed, the order is to be made by a member of the very commission which it is appointed under the statute to investigate.  There is no built‑in requirement of relevance, nor is there any limitation as to the scope of production in the statute.  The documents themselves by s. 20(2) are not included in the protection given to oral evidence.  By s. 45(2)(b) and (c), evidentiary presumptions are raised.  No privilege against production is recognized in the statute.

 

Accordingly, J. Holland J. found that ss. 17(1) and 17(4) were contrary to s. 8  of the Charter .  He also found that the provisions could not be justified under s. 1.

 

    The learned trial judge next turned his attention to a consideration of s. 17(1), (2) and (8) in light of s. 7  of the Charter .  After referring to this Court's decision in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, J. Holland J. stated that ss. 11( c )  and 13  of the Charter  were specific emanations of the s. 7 right.  Having said this, he considered whether "the principles of fundamental justice" contained in s. 7 included any rights residual to those specifically enumerated in ss. 11(c) and 13.

 

    He adopted the reasons given by Lysyk J. in Re Transpacific Tours Ltd. and Director of Investigation and Research (1985), 25 D.L.R. (4th) 202 (B.C.S.C.) and applied the majority decision of the British Columbia Court of Appeal in Haywood Securities Inc. v. Inter‑Tech Resource Group Inc. (1985), 24 D.L.R. (4th) 724, leave to appeal to the Supreme Court of Canada granted May 22, 1986, [1986] 1 S.C.R. x.  In so doing J. Holland J. concluded that the principles of fundamental justice did not include any rights in relation to non‑compellability or self‑incrimination other than those expressly provided in ss. 11(c) and 13.  This approach was consistent with that taken in Curr v. The Queen, [1972] S.C.R. 889, wherein Laskin J. (as he then was) ruled that s. 1(a) of the Canadian Bill of Rights did not contain any rights residual to those contained in s. 2(d).  Laskin J. had come to this conclusion because he thought it ill‑advised to take a "piecemeal" approach to self‑incrimination in the context of the Canadian Bill of Rights.

 

    After reviewing Curr and s. 5(2) of the Canada Evidence Act, R.S.C. 1970, c. E-10 (first enacted in 1893), J. Holland J. summarized his findings at pp. 180‑81 as follows:

 

    I am satisfied that since 1893, in Canada there has been no general principle of a privilege against self‑incrimination.

 

    The rights set out in s. 11(c) and s. 13, then, are the only rights against self‑incrimination which are so deeply rooted in our law and tradition as to be fundamental.  There is no residual right to fall within the ambit of the s. 7 term "fundamental justice".

 

He concluded therefore that, while portions of s. 17 of the Act violated s. 8  of the Charter , there was no violation of s. 7.

 

(b)  The Ontario Court of Appeal  (Houlden, Thorson and Grange JJ.A.)

 

    Grange J.A. wrote for the court.  He dealt with the s. 7 issue first and began by considering whether s. 7 contained a residual right against self‑incrimination.  He stated at p. 261:

 

. . . I am of the view that the only rights against self‑incrimination now known to our law are those found in ss. 11( c )  and 13  of the Charter , namely:  the right of a person charged with an offence not to be compelled to be a witness in those proceedings and the right of a witness not to have incriminating evidence given by him used against him in subsequent proceedings.

 

    We in Canada have no modern tradition against a witness incriminating himself by his own testimony.  At least since 1893, when the Canada Evidence Act [S.C. 1893, c. 31] was amended to include what is now s. 5  (see R.S.C. 1970, c. E‑10) our tradition has been that every witness must answer questions legitimately put to him subject to the protections now found in s. 13  of the Charter  and subject to the protection against compelling an accused person to testify in proceedings directed against him (s. 11( c )  of the Charter ).  Once he testifies, however, he is no more protected than any other witness.

 

On the alleged right to remain silent, Grange J.A. held that "the right must be restricted to police inquiries and the like and the trial proceedings themselves"

(p. 262).

 

    Grange J.A. then moved to s. 8  of the Charter  and considered whether s. 17  could be construed as authorizing a "seizure" within the meaning of that section.  He concluded that the s. 17 procedure for the production of documents did not constitute a seizure.  He stated at pp. 268‑69:

 

    What happens under s. 17 is that an order is issued.  An order is of course to be obeyed and if it is obeyed then the consequence is much the same as a seizure under s. 10.  But if it is not obeyed no penalty can be imposed without the matter being considered by an impartial judicial arbiter.  Moreover, as appears from Director of Investigation & Research v. Restrictive Trade Practices Com'n et al., supra, the order can be attacked on motion to review before it takes effect.  The result of the order is really no different from that consequent upon the issuance of a subpoena duces tecum which can be issued in either civil or criminal proceedings without any requirement of assessing its reasonableness and the conflicting interests of the parties.

 

                                                                           . . .

 

It is not necessary to formulate a general rule as to what constitutes a seizure; it is sufficient to say that the s. 8 prohibition does not encompass an order requiring the production of documents so long as the section authorizing the order (or the law apart from that section) gives the person required to produce a reasonable opportunity to dispute the order and prevent the surrender of the documents.  That in my view is precisely the position under s. 17.

 

Moreover, even if s. 17 did contemplate a seizure Grange J.A. found that the seizure process was reasonable.  He took pains to distinguish the s. 17 procedure from the s. 10 procedure which was struck down by this Court in Hunter v. Southam Inc., supra.  At pages 269‑70 he quoted from the reasons of Marceau J. in Ziegler v. Hunter, supra, at p. 629:

 

It is evident that the essential characteristic of the situation created by a search and seizure order (and clearly the only one that explains the reaction of both judges) is that a public officer is there bestowed with authority to force his way, at any time suitable to him and without warning, into the home or business premises of a person and search for and seize documents or things that he may lay his hands on.  Such a characteristic is absolutely alien to the situation resulting from the service of a subpoena duces tecum, whatever the nature and the number of the documents asked for.  The two situations have nothing in common as regards the intrusion into the home and privacy of an individual.  The necessity to protect the citizens and their homes against a possible abuse of search powers in no way compares with the need that might be felt of keeping some control over the issuance of subpoena duces tecum.

 

The Ontario Court of Appeal accordingly found that s. 17 breached neither s. 7 nor s. 8  of the Charter .

 

4.  Analysis

 

    In order to determine whether s. 17 of the Act conflicts with s. 7  or s. 8  of the Charter  it is necessary to construe it in its proper legislative context.

 

    Combines legislation has had a long history in Canada.  Dickson J., as he then was, provided a brief historical summary of this legislation in Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206, at pp. 250‑54.  He described the origins of the statute at p. 250:

 

The original statute, passed in 1889, was entitled An Act for the Prevention and Suppression of Combinations formed in restraint of Trade, 1889 (Can.), c. 41.  The statute was motivated by concern over the emergence in Canada of smaller versions of the huge trusts in the United States, through which a few personalities could control enormous financial empires.  The combines problem was seen as one with strong moral overtones and criminal sanctions were selected as the appropriate means for its control:  see McDonald, Criminality and the Canadian Anti‑Combines Laws (1965), 4 Alta. L.R. 67, at pp. 69‑71.

 

    Since that time the legislation has undergone significant change and may to some extent have lost its initial coherence.  As Estey J. pointed out in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, at pp. 194‑95:

 

    The statutory scheme was no doubt clear and consistent when the statute was first enacted.  It has over the years had new provisions patched on, older sections deleted, phrases wedged in or subsections carved out until the meaning of some of the provisions is obscure.  By the time of its revision in 1986, the statutory scheme seriously lacked any symmetry.

 

In the revision of 1986 referred to by Estey J. the Act was renamed the Competition Act :  see S.C. 1986, c. 26.  We are concerned in this case, however, with the pre‑1986 legislation which continues to apply to inquiries commenced before the revision came into force.

 

    The Act (as amended up to 1986) provides for a system of investigation and research which allows the Director to determine facts relevant to particular issues of market behaviour, including breaches of prescribed guidelines set forth in the Act.  In carrying out his duties the Director can obtain information in several ways.  By virtue of s. 8 the Director is obliged to commence an inquiry when he has received an application from six persons who are of the opinion that a violation of the Act has or is about to occur.  He must also commence an inquiry when he himself has reason to believe that a violation has or is about to occur or when he is directed to do so by the Minister of Consumer and Corporate Affairs.  Section 9 allows the Director at any time during the course of an inquiry to require any person to make a written return under oath or affirmation.  He may also, pursuant to s. 12, require evidence upon affidavit or written affirmation once approval has been granted from the Commission on an ex parte application.

 

    Another fact finding method is created by s. 17 of the Act.  Since this is the section under review in the present appeal, I set it out in its entirety:

 

    17. (1)  On ex parte application of the Director, or on his own motion, a member of the Commission may order that any person resident or present in Canada be examined upon oath before, or make production of books, papers, records or other documents to such member or before or to any other person named for the purpose by the order of such member and may make such orders as seem to him to be proper for securing the attendance of such witness and his examination, and the production by him of books, papers, records or other documents and may otherwise exercise, for the enforcement of such orders or punishment for disobedience thereof, all powers that are exercised by any superior court in Canada for the enforcement of subpoenas to witnesses or punishment of disobedience thereof.

 

    (2)  Any person summoned under subsection (1) is competent and may be compelled to give evidence as a witness.

 

    (3)  A member of the Commission shall not exercise power to penalize any person pursuant to this Act, whether for contempt or otherwise, unless, on the application of the member, a judge of the Federal Court of Canada or of a superior or county court has certified, as such judge may, that the power may be exercised in the manner disclosed in the application, and the member has given to such person twenty‑four hours notice of the hearing of the application or such shorter notice as the judge deems reasonable.

 

    (4)  Any books, papers, records, or other documents produced voluntarily or in pursuance of an order under subsection (1) shall within thirty days thereafter be delivered to the Director, who is thereafter responsible for their custody, and within sixty days after the receipt of such books, papers, records or other documents by him the Director shall deliver the original or a copy thereof to the person from whom such books, papers, records or other documents were received.

 

    (5)  A justice before whom any thing seized pursuant to a search warrant issued with reference to an offence against this Act is brought may, on the application of the Director, order that such thing be delivered to the Director, and the Director shall deal with any thing so delivered to him as if delivery of it had been made pursuant to subsection (4).

 

    (6)  Every person summoned to attend pursuant to this section is entitled to the like fees and allowances for so doing as if summoned to attend before a superior court of the province in which he is summoned to attend.

 

    (7)  The Minister may issue commissions to take evidence in another country, and may make all proper orders for the purpose and for the return and use of evidence so obtained.

 

    (8)  Orders to witnesses issued pursuant to this section shall be signed by a member of the Commission.

 

    As can be seen from the above, the Director, on an ex parte application, or a Commission member on his own motion, may compel the attendance of an individual to be examined under oath.  That individual may also be compelled to produce records or other documents.  The section 17 procedure may take place in conjunction with a s. 8 inquiry but may also be conducted independently of such inquiry.  The Director need not have any belief that a violation of the Act has occurred when applying for a s. 17 order.  He is not obliged to disclose the grounds for obtaining the order and he need not disclose the name of the person, if any, who is suspected of having violated the Act.  There are no provisions governing the conduct of the hearing.  That is left to the person conducting the hearing.  A person who refuses to comply with an order under s. 17 can be punished by the Commission on an application to a judge pursuant to s. 17(3).  A refusal may constitute an offence under ss. 40, 41 or 46.1 of the Act.

 

    Section 20 of the Act is also relevant to the determination of this appeal.  It provides:

 

    20.  (1) A member of the Commission may allow any person whose conduct is being inquired into and shall permit any person who is being himself examined under oath to be represented by counsel.

 

    (2)  No person shall be excused from attending and giving evidence and producing books, papers, records or other documents, in obedience to the order of a member of the Commission, on the ground that the oral evidence or documents required of him may tend to criminate him or subject him to any proceeding or penalty, but no oral evidence so required shall be used or receivable against such person in any criminal proceedings thereafter instituted against him, other than a prosecution under section 121  of the Criminal Code  for perjury in giving such evidence or a prosecution under section 124  of the Criminal Code  in respect of such evidence.

 

    This Court held in Irvine, supra, that s. 20(1) granted a limited right to counsel to those being examined under oath.  Counsel can object to improper questions being put to his client and can re‑examine his client to clarify the client's testimony.  However, counsel is not entitled to be present at the examination of other witnesses and so obviously cannot cross‑examine them.  With regard to persons whose conduct is being inquired into under the Act, s. 20(1) gives the Commission a discretion to permit them to be represented by counsel.  The language of the section is permissive.  It is conceivable, therefore, that a person whose conduct is being inquired into will not be informed of that fact and may not be permitted to have counsel, depending upon how the Commission exercises its discretion.

 

    Section 20(2) grants protection to witnesses similar to that provided in s. 5(2)  of the Canada Evidence Act.  No oral evidence given by a witness can subsequently be used against him except on a charge for perjury.  However, nothing in the section protects the witness from the use of derivative evidence obtained as a result of his testimony.  Moreover, nothing in s. 20(2)  prevents the use of the documents against the witness.  In fact, the Act creates certain evidentiary presumptions with regard to documentary evidence (see s. 45 ).

 

    A section 17 hearing does not determine any rights or impose any liabilities.  A variety of uses may be made of the information obtained as a result of the s. 17 hearing.  Under section 14(1) the Director can terminate any inquiry currently in progress.  Under section 15 he can forward materials to the Attorney General of Canada for review and further action.  Section 15 provides:

 

    15. (1)  The Director may, at any stage of an inquiry, and in addition to or in lieu of continuing the inquiry, remit any records, returns or evidence to the Attorney General of Canada for consideration as to whether an offence has been or is about to be committed against this Act, and for such action as the Attorney General of Canada may be pleased to take.

 

    (2)  The Attorney General of Canada may institute and conduct any prosecution or other proceedings under this Act, and for such purposes he may exercise all the powers and functions conferred by the Criminal Code  on the attorney general of a province.

 

    Under section 18, the Director can, at any stage of an inquiry, if he is of the opinion that the evidence discloses an offence, prepare a statement of the evidence and submit it to the Commission and the person against whom the allegations are made.  Upon receipt of the statement the Commission is compelled under s. 18(2) to set a place, time and date at which argument on the statement will be heard from the Director and the person to whom the matter relates.  After this hearing the Commission is obliged to prepare a report for the Minister.  Section 22 outlines other circumstances in which the Commission can prepare a report for the Minister.  The Director may also as a result of a s. 17 hearing bring an application pursuant to Part IV.1 of the Act at which time he must prove his case as in a civil trial.

 

    In summary of the above it is apparent that the Act contains numerous provisions enabling the Director to collect information relating to anti‑competitive behaviour.  Once this information has been obtained a variety of uses can be made of it, including the referral of the matter to the Attorney General of Canada for possible prosecution.  It is with this legislative framework in mind that we must decide whether s. 17 is inconsistent with ss. 7  and 8  of the Charter .

 

Section 7  of the Charter 

 

    Section 7  of the Charter  provides:

 

    7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

    In Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, this Court ruled that s. 7  of the Charter  had no application to corporations and was confined to the protection of human beings.  Since no individuals were named as parties in that case, s. 7 could not be successfully invoked.  However, in this appeal three of the appellants are individuals.  If section 17 of the Combines Investigation Act violates these individuals' rights and cannot be justified under s. 1  of the Charter , it is rendered of no force or effect as a result of s. 52  of the Constitution Act, 1982 .  Since the Combines Investigation Act does not provide for separate treatment of human beings and corporations, it follows that if s. 17 is of no force or effect in respect of human beings it must also be of no force or effect in respect of corporations.  This appeal is therefore distinguishable from the Irwin Toy case.  Consequently, the s. 7 issue raised by the appellants must be squarely addressed in this appeal.

 

    The general framework for interpreting s. 7  of the Charter  has now been settled by this Court.  As with all provisions of the Charter  s. 7  must be interpreted purposively, bearing in mind the interests it was designed to protect:  see Re B.C. Motor Vehicle Act, supra, at pp. 499‑500.  In order to succeed under s. 7, an applicant must show that his right to life, liberty and security of the person has been violated and that the violation which occurred was contrary to the principles of fundamental justice.

 

    (a)  Life, Liberty and Security of the Person

 

    While the concepts of "life, liberty and security of the person" are closely linked in s. 7, it is not necessary for the citizen to show that his right to life, his right to liberty and his right to security of the person have all been violated in order to constitute a breach of the section.  It is sufficient that one of them has been violated:  see Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177.  The appellants submit that their liberty and security of the person have been violated because s. 17 compels them to attend before an examiner against their will and give testimony at the risk of punishment for failure to comply with that demand.  They argue that their security of the person has been violated also by the fact that governmental authorities, while unable to introduce the s. 17 testimony directly in criminal proceedings, can obtain and utilize derivative evidence in such criminal proceedings.  They assert as well that the s. 17 investigative process constitutes a state‑imposed trauma which adversely affects their liberty and security of the person.

 

    The respondents for their part contend that the right to liberty and security of the person is not absolute and should be confined to the maintenance of the physical integrity of the person.  They rely in part on the words of Dickson C.J. in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 785‑86:

 

In my opinion "liberty" in s. 7  of the Charter  is not synonymous with unconstrained freedom.  In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 524, Wilson J. observed:

 

Indeed, all regulatory offences impose some restriction on liberty broadly construed.  But I think it will trivialize the Charter  to sweep all those offences into s. 7 as violations of the right to life, liberty and security of the person even if they can be sustained under s. 1.

 

Whatever the precise contours of "liberty" in s. 7, I cannot accept that it extends to an unconstrained right to transact business whenever one wishes.

 

The respondents stress that s. 17 merely authorizes a fact‑finding procedure and does not create any liability or impose any punishment.  Moreover, they deny that s. 17 compels the attendance of an individual since he can challenge the Order to Appear either by way of judicial review or when the Commission applies to a court pursuant to s. 17(3) to punish the individual for non‑compliance with the Order to Appear.

 

    It is not necessary for me to attempt to determine the perimeters of "liberty" and "security of the person".  Clearly, they must be subject to some limits; otherwise any tenuous restriction placed on an individual would constitute a violation of liberty and security of the person.  There is, however, in my view a vast difference between a general regulatory scheme (such as the rules of the road for motorists) designed to give some order to human behaviour and a state‑imposed compulsion on an individual to appear at proceedings against his will and testify on pain of punishment if he refuses.  The difference is even greater, in my view, where the compelled testimony given by the individual may be used to build a case against him in what is, in effect, a subsequent criminal prosecution.  It is my opinion that this compulsion, linked as it is to the criminal process, touches upon the physical integrity of the individual as well as that individual's reasonable expectation of privacy.  The fact that the s. 17 procedure is in itself "investigatory" as opposed to "prosecutorial" seems to me to be irrelevant when a criminal prosecution is a potential consequence of the s. 17 investigation.  Nor do I think that the fact that the individual may challenge the proceedings by way of judicial review or under s. 17(3) means that his rights are not violated.  Such considerations may be relevant in considering whether the principles of fundamental justice have been violated or whether the legislation is sustainable under s. 1  of the Charter  but are not relevant in determining whether the right to liberty and security of the person has been violated.  I would conclude therefore that s. 17 of the Act violates a person's right to liberty and security of the person within the meaning of s. 7  of the Charter .

 

    (b)  The Principles of Fundamental Justice

 

    The appellants, in order to establish a violation of their s. 7 rights, must show that the infringement of their right to liberty and security of the person was not in accordance with the principles of fundamental justice.  Lamer J., speaking for a majority of the Court in Re:  B.C. Motor Vehicle Act, supra, set forth the guidelines for determining the content of the principles of fundamental justice.  He stated at pp. 502‑3:

 

    Sections 8 to 14, in other words, address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7.  They are designed to protect, in a specific manner and setting, the right to life, liberty and security of the person set forth in s. 7.  It would be incongruous to interpret s. 7 more narrowly than the rights in ss. 8 to 14.  The alternative, which is to interpret all of ss. 8 to 14 in a "narrow and technical" manner for the sake of congruity, is out of the question (Law Society of Upper Canada v. Skapinker, supra, at p. 366).

 

    Sections 8 to 14 are illustrative of deprivations of those rights to life, liberty and security of the person in breach of the principles of fundamental justice.  For they, in effect, illustrate some of the parameters of the "right" to life, liberty and security of the person; they are examples of instances in which the "right" to life, liberty and security of the person would be violated in a manner which is not in accordance with the principles of fundamental justice.  To put matters in a different way, ss. 7 to 14 could have been fused into one section, with inserted between the words of s. 7 and the rest of those sections the oft utilised provision in our statutes, "and, without limiting the generality of the foregoing (s. 7) the following shall be deemed to be in violation of a person's rights under this section".  Clearly, some of those sections embody principles that are beyond what could be characterized as "procedural".

 

    Thus, ss. 8 to 14 provide an invaluable key to the meaning of "principles of fundamental justice".  Many have been developed over time as presumptions of the common law, others have found expression in the international conventions on human rights.  All have been recognized as essential elements of a system for the administration of justice which is founded upon a belief in "the dignity and worth of the human person" (preamble to the Canadian Bill of Rights, R.S.C. 1970, App. III) and on "the rule of law" (preamble to the Canadian Charter of Rights and Freedoms ).

 

    It is this common thread which, in my view, must guide us in determining the scope and content of "principles of fundamental justice".  In other words, the principles of fundamental justice are to be found in the basic tenets of our legal system.  They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system.  Such an approach to the interpretation of "principles of fundamental justice" is consistent with the wording and structure of s. 7, the context of the section, i.e., ss. 8 to 14, and the character and larger objects of the Charter  itself.  It provides meaningful content for the s. 7 guarantee all the while avoiding adjudication of policy matters.

 

    The appellants assert that s. 17 is contrary to two principles of fundamental justice, namely the right against self‑incrimination and the right not to be compelled to give evidence against oneself or the right to remain silent.  These two rights are touched upon in other provisions of the Charter .  Section 13 provides an individual with a limited protection against self‑incrimination.  It reads:

 

    13.  A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

 

Section 11(c) provides a limited right of non‑compellability:

 

    11. Any person charged with an offence has the right

 

                                                                           . . .

 

(c)  not to be compelled to be a witness in proceedings against that person in respect of the offence;

 

    The appellants are not in a position to take advantage of either s. 13 or s. 11(c).  However, they claim that s. 7 protects similar rights in contexts other than those to which ss. 13 and 11(c) apply.  The respondents resist this claim on the basis of this Court's decision in Curr, supra.  In that case the accused challenged what was then s. 223(2)  of the Criminal Code  which provided that a person who without reasonable excuse fails to comply with a request to give a breath sample is guilty of an offence.  The accused argued that the law was inconsistent with s. 2(d), (e) and (f) and s. 1(a) and (b) of the Canadian Bill of Rights.  Of importance in this appeal are ss. 1(a) and 2(d) which provide:

 

    1.  It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

 

(a)  the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

 

    2.  Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

 

                                                                           . . .

 

(d)  authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards;

 

In declining to read a residual 2(d) right into s. 1(a) Laskin J. stated at pp. 913‑14:

 

    I do not think that the Canadian Bill of Rights can be construed as having taken a piecemeal approach to the privilege against self‑crimination.  The history of the privilege as a Canadian derivative from the English common law is accurately reflected in the way it is expressed in s. 2(d):  see 8 Wigmore on Evidence (McNaughton revision, 1961), #2250, pp. 284 ff.  The scope or policy of the privilege may be another thing, as it has proved to be under its constitutional formulation in the United States.  Unless s. 2(d), where the privilege is expressed, yields room to take policy beyond history -‑ and I have already dealt with s. 2(d) in this respect -‑ I do not think that s. 1(a), where there is no reference to the privilege and whose words provide no historical warrant for embracing it, can be taken to include in its protection an extension of the privilege beyond what is found in s. 2(d).

 

    No doubt, the generous words of s. 1(a) may bring to mind matters other than protection against self‑crimination for which protection may be sought thereunder, failing their specific mention elsewhere in the Canadian Bill of Rights.  I do not propose to speculate on them; their day of decision may come, but in this case I am concerned with a submission that although self‑crimination is expressly dealt with in one provision of the statute, this Court should find another expression thereof in another provision of the same statute where it is not expressly mentioned.

 

    There is a distinction to be drawn in respect of the privilege which is commanded by the experience with it in this country and in the United States.  The point in the criminal process at which the privilege can be asserted is one thing; what the privilege embraces at that point is something else.  It is my conclusion that the point of assertion has been fixed in s. 2(d) and I do not think I can invoke s. 1(a) to shift it to a stage which would make it effective against s. 223.

 

    The respondents urge a similar approach to s. 7.  Support for their view is found in Re Transpacific Tours Ltd., supra, which dealt with this very issue.  Lysyk J. quoted from Curr and stated at p. 213:

 

    The reasons of the majority of the Supreme Court in Curr, speaking through Laskin J., nevertheless command careful attention.  Firstly, the analysis in the above‑quoted paragraphs from Curr does not turn on the meaning of a single word or phrase, but on a principle of construction.  It relates to the structure, as opposed to the lexicon, of the enactment.  The principle is encapsulated in the maxim expressio unius est exclusio alterius:  the express mention of one or more things of a particular class may be regarded as impliedly excluding others.  The respondents, adopting the reasoning in Curr, argue that ss. 11 (c) and 13 must have been intended to express the full measure of constitutional protection to be afforded by the Charter  in respect of compellability and self‑incrimination.

 

It was not material to Lysyk J.'s opinion that the Charter  is a constitutional document and the Canadian Bill of Rights only a statute.  He stated at p. 216:

 

    In sum, the Supreme Court of Canada has recognized that the Canadian Bill of Rights enjoys constitutional or quasi‑constitutional stature.  As such, a purposive approach to its interpretation is presumably as appropriate as it is for the Charter  or for other enactments concerned with human rights.  The purpose of the Canadian Bill of Rights disclosed by its long title ‑- "An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms" -‑ is shared by the Charter .  Accordingly, it might be expected that evolution of the two instruments will follow roughly parallel lines over the course of time, with the possibility of earlier decisions under the Bill attracting reconsideration in light of authoritative pronouncements concerning the scope of equivalent language in the Charter .  Be that as it may, to the extent that the purposive approach to interpretation provides guidance, it is not evident why the framework of analysis applied to the Bill in Curr is, on principle, unsuitable for the Charter .

 

He found support for the application of the expressio unius principle to the Charter .  He noted, for example, that the principle was applied by Le Dain J. in R. v. Therens, [1985] 1 S.C.R. 613, in respect of s. 24  of the Charter  and by the British Columbia Supreme Court in Haywood Securities Inc. v. Inter‑Tech Resource Group Inc. (1985), 62 B.C.L.R. 183, later aff'd by (1985), 24 D.L.R. (4th) 724 (B.C.C.A.)  He stated his conclusions on this issue at p. 220:

 

    I am in accord with the view that the Curr analysis, measuring s. 17 of the Act against the Canadian Bill of Rights, applies with equal force to the Charter .  Why should the framers of the Charter  have chosen to deal directly and expressly with only some aspects of compellability and self‑incrimination -‑ in ss. 11(c) and 13 ‑- while leaving other aspects to be divined from the general language employed in s. 7?  The Charter's draftsmen would have been mindful not only of Curr but of the fact that the broad common‑law privilege against self‑incrimination had effectively been set aside in Canada decades ago by the predecessor provisions of what is now s. 5  of the Canada Evidence Act and by similar provisions in other federal and provincial enactments of which s. 17 of the Act provides only one example.

 

    In Haywood Securities, supra, the appellant was examined in aid of execution by the respondent.  The appellant refused to answer certain questions on the ground that the answers might tend to incriminate it.  A majority of the British Columbia Court of Appeal ruled that s. 7  of the Charter  was not intended to contain a general right against self‑incrimination.  Macfarlane J.A., speaking for the majority, stated at pp. 747‑48:

 

    The common law right was a right not to testify if the answers might tend to incriminate the witness.  Canadian law has recognized the right of an accused not to testify, and that right has been enshrined in s. 11( c )  of the Charter .  Canadian law has recognized the right of a witness not to be incriminated by evidence he has been compelled to give in another proceeding.  That right has been enshrined in s. 2(d) of the Canadian Bill of Rights.  Section 13  of the Charter  has given that protection constitutional status.  But neither Canadian law nor the Charter  has recognized the right of such a witness not to testify (except in those rare cases where the evidence would be so prejudicial that a stay of the proceedings is justified until criminal proceedings are concluded).

 

    Those who framed the Charter , unlike those who drafted the Fifth Amendment to the United States Constitution, have not expressly adopted, as a principle, that "no person shall be compelled in any criminal case to be a witness against himself".  Rather they have deliberately drawn a line between non‑compellability in the case of an accused, and compellability (with protection against use of incriminating evidence) in the case of a witness.

 

However, Macfarlane J.A. tempered the force of his comments at pp. 748‑49, stating:

 

    I agree that if the sole aim and purpose of the proceeding was to obtain evidence to support a charge or to assist the criminal prosecution of the witness, it might be arguable that the witness ought not to be compelled to divulge information which might lead to his conviction.  But, in my view, such a result would follow only if the proceedings, in which such evidence was given, were so devoid of any legitimate public purpose, and so deliberately designed to assist the prosecution of the witness that to allow them to continue would constitute an injustice.  In such circumstances, the continuance of the proceedings could be said to constitute a violation of the principles of fundamental justice.

 

                                                                           . . .

 

    The appellants submit that ss. 11(c) and 13 do not exhaust the protection of rights in this area, which are fundamental to our system of justice, and they resort to s. 7.  I agree that there may be cases and circumstances where the legislation or the procedure is so designed and the results are so unjust that to compel a person to testify might offend the basic sense of fairness which underlies the principles of fundamental justice, and violate s. 7.  Such situations may involve testimonial compulsion and self‑incrimination but it does not follow that s. 7 contains an unwritten rule against all testimonial compulsion, and all cases involving self‑incrimination.  [Emphasis in original.]

 

    The majority in Haywood Securities, supra, was met with a powerful dissent by Lambert J.A.  After considering the expressio unius principle of interpretation, Lambert J.A. stated at p. 732:

 

    In my opinion that argument does not give sufficient weight to a purposive construction of the Charter .  Nor does it recognize the function that s. 7 must play in lending flexibility and capacity for development to the Charter  as a whole:  see Hunter et al. v. Southam Inc. (1984), 11 D.L.R. (4th) 641 at p. 649, [1984] 2 S.C.R. 145 at p. 155, l4 C.C.C. (3d) 97, and following.

 

    The conditional right conferred by s. 7 is broad and ample.  It protects against any intrusion on the liberty of the citizen if the intrusion is not in accordance with the principles of fundamental justice.  But it is in the concept of fundamental justice that the balance between the rights of the individual and the collective rights of the people must be achieved, not in restricting the scope of s. 7 by the artificial rigidities of the rules of statutory construction.

 

    If the argument of Haywood Securities Inc. were accepted it would mean that a citizen could be deprived of his liberty by imprisonment, and the deprivation could constitute a flouting of fundamental justice, but the Charter  could offer no protection if the deprivation or the flouting arose in relation to a subject‑matter that was similar to a subject‑matter dealt with in ss. 8 to 14 .  I would not adopt that approach to the Charter .

 

    In finding that s. 7  of the Charter  did protect rights residual to ss. 11(c) and 13, Lambert J.A. relied on R. L. Crain Inc. v. Couture (1983), 6 D.L.R. (4th) 478 (Sask. Q.B.)  In that case Schiebel J. stated in part at p. 501:

 

    In my view, the specific rights enumerated in ss. 8 to 14 are specific examples or emanations of the general right to life, liberty and security of the person, and the specific mention of these rights serves to reinforce the general rights secured by s. 7, rather than to restrict them.

 

    Although the specific rights enumerated in ss. 8 to 14 may come within the scope of the compendious phrase "life, liberty and security of the person", the framers of the Charter , in placing certain specific rights outside of s. 7, afforded them an additional measure of sanctity.  Under s. 7 a person may be deprived of his rights if the deprivation is in accordance with the principles of fundamental justice.  The specific rights in ss. 8 to 14  are not so limited.

 

    If the relationship between s. 7 and the following sections is viewed in this way, s. 11(c) does not preclude a right not to be compelled to be a witness against oneself from arising before a person is charged.  Rather, s. 11(c) provides additional protection by setting the point at which the right not to be compelled to be a witness against oneself is no longer subject to possible deprivation in accordance with the principles of fundamental justice.

 

    Similarly, s. 13 guarantees to a witness the specific right not to have self‑incriminating evidence used against him in other proceedings.  This is a separate right which arises regardless of whether the witness testifies voluntarily or under compulsion.  This positive right conferred by s. 13 should not be taken as a constitutional adoption of the statutory scheme established by s. 5 of the Canada Evidence Act, R.S.C. 1970 c. E‑10.  There is nothing in s. 13 that expressly makes a person compellable to give self‑incriminating evidence.  Although s. 13 is similar to s. 5(2)  of the Canada Evidence Act and s. 20(2) of the Combines Investigation Act, there is no equivalent to s. 5(1)  of the Canada Evidence Act or to s. 17(2) of the Combines Investigation Act contained in the Charter .  The restrictive provisions of these latter sections should not be read into the Charter  as necessarily implicit in the positive rights conferred by s. 13.

 

    For these reasons I would hold that the specific rights in ss. 11(c) and 13 do not necessarily preclude a more general right against the compelling of self‑incriminating evidence from being within the scope of s. 7.

 

    I would respectfully conclude upon a review of the existing authorities that the approach advocated by the appellants and reflected in the reasoning of Lambert J.A. and Schiebel J. is sound.  The principle of statutory construction, expressio unius, is ill‑suited to meet the needs of Charter  interpretation.  It is inconsistent with the purposive approach to Charter  interpretation which has been endorsed by this Court and which focuses on the broad purposes for which the rights were designed and not on mechanical rules which have traditionally been employed in interpreting detailed provisions of ordinary statutes in order to discern legislative intent.  I do not question Laskin J.'s approach to the interpretation of the Canadian Bill of Rights.  The point, however, has repeatedly been made that interpretations appropriate to the Canadian Bill of Rights will not necessarily be appropriate to the Charter :  see R. v. Therens, supra; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Whyte, [1988] 2 S.C.R. 3.  It is true that in Therens Le Dain J. interpreted s. 24  of the Charter  to allow for the exclusion of evidence only under s. 24(2).  However, this was not the result of the arbitrary application of the principle of exclusio unius but of a careful review of the purpose of the two subsections of s. 24 .

 

    In Re B.C. Motor Vehicle Act this Court held that the principles of fundamental justice are found in the basic tenets of our justice system.  Sections 8  to 14  of the Charter  are illustrative, but not exhaustive, of deprivations of life, liberty and security of the person which are not in accord with the principles of fundamental justice.  Otherwise, s. 7 itself would have no role to play.  I conclude therefore that the specific enumerations in ss. 11(c) and 13 do not prevent residual content being given to s. 7.  It remains to be seen, however, to what extent the right against non‑compellability and the right against self‑incrimination are part of the principles of fundamental justice.

 

    If the principles of fundamental justice are to be found in the basic tenets of our justice system as this Court has stated, reference must be made to the  historical development of our justice system as well as to the experience of other jurisdictions which espouse values similar to our own.  Our justice system has evolved in large measure from the English common law and it is there I must turn at first instance to examine the ambit of the right against compellability and the right against self‑incrimination.

 

    (i)  The English Position

 

    The origins of the rights are examined in considerable detail from a historical perspective in Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), at pp. 284 ff.  Essentially, the rights developed out of a revulsion against the practices of the courts of the Star Chamber and the High Commission in the seventeenth century:  see also Professor E. Ratushny's Self‑Incrimination in the Canadian Criminal Process (1979).  A person could be called before these courts without notice of the precise charge laid against him and examined under oath.  The principal concern was not the fact that an accused was required to testify but rather the fact that the charges lacked particularity.  This lack of particularity had at least two undesirable consequences for the accused.  First, he was often ignorant as to what he was being charged with and therefore had difficulty tailoring his responses to a particular issue.  And second, and closely related to the first, the courts often used the lack of particularity as justification for embarking on a fishing expedition in the hopes that somewhere along the way the accused would reveal the commission of some offence.  Thus, the foundation of the rights against compellability and self‑incrimination lay in dissatisfaction with the method of presentment of the charge to the accused rather than in the fact that the accused had to testify.  However, through the effluxion of time, the underlying rationale for the rights became blurred.  Wigmore makes this point at pp. 289‑90 in the course of his discussion of Lilburn's trial, the most famous case in which the reason for the rights was canvassed:

 

Up to the last moment, Lilburn had never claimed the right to refuse absolutely to answer an incriminating question; he had merely claimed a proper proceeding of presentment or accusation.  But now this once vital distinction comes to be ignored.  It begins to be claimed, flatly, that no man is bound to incriminate himself on any charge (no matter how properly instituted) or in any court (not merely in the ecclesiastical or Star Chamber tribunals).  Then this claim comes to be conceded by the Judges ‑- first in criminal trials, and even on occasions of great partisan excitement; and afterwards, in the Protector's time, in civil cases, though not without ambiguity and hesitation.  By the end of Charles II's reign, under the Restoration, there is no longer any doubt, in any court; and by this period, the extension of the privilege to include an ordinary witness, and not merely the party charged, is for the first time made.  [Emphasis in original.]

 

    With the passage of time and the enactment of legislation, the accused became competent witnesses for the defence but were not compellable by the Crown.  This non‑compellability applied to the pre‑trial as well as the trial process.  As Lord Parker C.J. stated in Rice v. Connolly, [1966] 2 Q.B. 414, at p. 419:

 

It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is that right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place; short, of course, of arrest.

 

    Also, the rule developed that "a man shall not be compelled to say anything which criminates himself".  This rule was discussed by Stephen J. in Lamb v. Munster (1882), 10 Q.B.D. 110, at pp. 112‑13:

 

When the subject is fully examined, it will I think be found that the privilege extends to protect a man from answering any question which "would in the opinion of the judge have a tendency to expose the witness, or the wife or husband of the witness, to any criminal charge":  Stephen's Dig. of the Law of Ev. 3rd ed. art. 120, p. 121.  That is what I understand by the phrase "criminating himself".  It is not that a man must be guilty of an offence and say substantially, "I am guilty of the offence, but am not going to furnish evidence of it."  I do not think the privilege is so narrow as that, for then it would be illusory.  The extent of the privilege is I think this:  the man may say, "If you are going to bring a criminal charge, or if I have reason to think a criminal charge is going to be brought against me, I will hold my tongue.  Prove what you can, but I am protected from furnishing evidence against myself out of my own mouth."

 

This remains the law of England to this day.

 

(ii)  The Canadian Position

 

    In Canada we developed a slightly different approach with the enactment in 1893 of what are now ss. 4(1)  and 5  of the Canada Evidence Act , R.S.C., 1985, c. C‑5  (previously R.S.C. 1970, c. E-10).  In their present form these sections read as follows:

 

    4. (1)  Every person charged with an offence, and, except as otherwise provided in this section, the wife or husband, as the case may be, of the person so charged, is a competent witness for the defence, whether the person so charged is charged solely or jointly with any other person.

 

    5. (1)  No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.

 

    (2)  Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence.

 

    The effect of s. 4(1) was to maintain the common law rule of non‑compellability at the investigatory stage, subject to modification by the terms of a particular statute, and to make the accused at his trial a competent witness for the defence but not a compellable witness for the Crown.  The effect of s. 5 was to abolish the common law rule of allowing a witness to refuse to answer a question on the ground that it would tend to incriminate him and replace it with the rule that the witness must answer the question but the answer could not be used against him in a subsequent criminal case.  This legislation reflects the state's interest in having all available information before the tribunal so that a proper determination in that case can be made.  This state interest is achieved in derogation of the common law rule protecting a witness from answering a question on the basis of the right against self‑incrimination.

 

    I pause at this point to consider the development of the law in two other jurisdictions which share many of the same values as we do, the United States and Australia.

 

    (iii)  The Position in the United States

 

    The Fifth Amendment to the United States Constitution provides in part:

 

No person . . . shall be compelled in any criminal case to be a witness against himself . . . .

 

Once a person claims the benefit of this provision, he need not answer the question put to him.

 

    The underlying rationale behind the Fifth Amendment reflects the draftsmen's awareness of the situation in England.  Frankfurter J. made this point in Ullmann v. United States, 350 U.S. 422 (1956), at pp. 426 and 428:

 

[The Fifth Amendment] registers an important advance in the development of our liberty -‑ "one of the great landmarks in man's struggle to make himself civilized."  Time has not shown that protection from the evils against which this safeguard was directed is needless or unwarranted.  This constitutional protection must not be interpreted in a hostile or niggardly spirit.  Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers . . . .

 

                                                                           . . .

 

    No doubt the constitutional privilege may, on occasion, save a guilty man from his just deserts.  It was aimed at a more far‑reaching evil -‑ a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality.  Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil.  Having had much experience with a tendency in human nature to abuse power, the Founders sought to close the doors against like future abuses by law‑enforcing agencies.

 

    However, the United States Congress recognized that there were certain cases in which it was crucial that information be obtained from a witness notwithstanding that this ran afoul of the Fifth Amendment.  Consequently, particular pieces of legislation were passed which compelled a witness to answer all questions put to him but which protected or immunized the witness to varying degrees from the use of such elicited evidence.  The reasoning was that if the immunity was co‑extensive with the Fifth Amendment right, then no breach of the Constitution would occur.  The United States Supreme Court has ruled that "use immunity", an immunity provision comparable to that contained in s. 5  of the Canada Evidence Act , was not co‑extensive with the Fifth Amendment right and was unconstitutional:  see Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1970).  The reason for this was that governmental investigators could rely on the testimony extracted in order to obtain derivative evidence implicating the witness.  However, the court has ruled that the legislature need not go so far as to grant the witness full "transactional immunity".  In Kastigar v. United States, 406 U.S. 441 (1972), the court ruled that "use and derivative use" immunity was co‑extensive with the Fifth Amendment.

 

(iv)  The Position in Australia

 

    Australia inherited the common law of England as did Canada.  However, Australia did not enact a general provision comparable to s. 5  of the Canada Evidence Act .  Thus, the common law rights retain their vigour in Australia unless they are abrogated by specific legislation.  The Australian High Court has recently had occasion to consider the scope of the common law rights in two judgments Pyneboard Proprietary Ltd. v. Trade Practices Commission (1983), 152 C.L.R. 328 and Sorby v. Commonwealth of Australia (1983), 152 C.L.R. 281.  In the latter case, a majority of the court ruled, in line with recent American authority, that the right against self‑incrimination extends to protect a witness from the use of derivative evidence as well as the use of the testimony itself.  At page 294, Gibbs C.J. stated:

 

    In the absence of binding authority the matter must be approached from the standpoint of principle.  If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence.  The traditional objection that exists to allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission.  It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt.  Moreover the existence of such a power tends to lead to abuse and to "the  concomitant moral deterioration in methods of obtaining evidence and in the general administration of justice":  Validity of Section 92(4) of The Vehicles Act 1957 (Saskatchewan).

 

    The right against compellability and the right against self‑incrimination are thus fundamental precepts of democratic societies which respect individual rights and freedoms.  These rights derived from the unacceptable practices of certain courts in England centuries ago wherein these courts did not specify with any particularity the charge the accused was facing, yet required him to answer questions under oath in response to it.  Undoubtedly, prosecutors to‑day are required to specify with particularity the charge against the accused.  Yet the rights have survived to a greater or lesser extent in several jurisdictions.  Clearly, the underlying rationale for the rights has shifted.  It seems opportune therefore to consider what the modern rationale is.  It may assist us in determining the ambit of the principles of fundamental justice.

 

    Wigmore, op. cit., lists twelve possible justifications for the continued existence of the rights which he considers to be one broad right (at pp. 310‑18):

 

    (1)  It protects the innocent defendant from convicting himself by a bad performance on the witness stand.

 

    (2)  It avoids burdening the courts with false testimony.

 

    (3)  It encourages third‑party witnesses to appear and testify by removing the fear that they might be compelled to incriminate themselves.

 

                                                                           . . .

 

    (4)  The privilege is a recognition of the practical limits of governmental power; truthful self‑incriminating answers cannot be compelled, so why try.

 

                                                                           . . .

 

    (5)  The privilege prevents procedures of the kinds used by the infamous courts of Star Chamber, High Commission and Inquisition.

 

    (6)  It is justified by history, whose tests it has stood; the tradition which it has created is a satisfactory one.

 

                                                                           . . .

 

    (7)  The privilege preserves respect for the legal process by avoiding situations which are likely to degenerate into undignified, uncivilized and regrettable scenes.

 

    (8)  It spurs the prosecutor to do a complete and competent independent investigation.

 

                                                                           . . .

 

    (9)  The privilege aids in the frustration of "bad laws" and "bad procedures," especially in the area of political and religious belief.

 

                                                                           . . .

 

    [(10)  It] protects the individual from being prosecuted for crimes of insufficient notoriety or seriousness to be of real concern to society.

 

                                                                           . . .

 

    (11)  The privilege prevents torture and other inhumane treatment of a human being.

 

                                                                           . . .

 

    (12)  The privilege contributes toward a fair state‑individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load.

 

Wigmore favoured the last two of these policy justifications, stating at p. 318:

 

    In summary, it should be reiterated that the policy underpinning the privilege is anything but clear and it can be noted that the privilege is in fact used for all sorts of reasons, most of them having little or no relation to any tenable theory as to its purpose.  The significant purposes . . . are two:  The first is to remove the right to an answer in the hard cores of instances where compulsion might lead to inhumanity, the principal inhumanity being abusive tactics by a zealous questioner (Reason (11) supra).  The second is to comply with the prevailing ethic that the individual is sovereign and that proper rules of battle between government and individual require that the individual not be bothered for less than good reason and not be conscripted by his opponent to defeat himself (Reason (12), supra.)  [Emphasis added.]

 

    This Court had an opportunity to consider the rationale underlying ss. 11(c) and 13 in Dubois v. The Queen, [1985] 2 S.C.R. 350.  In that case the issue was whether the Crown could tender statements made by the accused at his first trial in a subsequent retrial.  Lamer J., for the majority, felt that ss. 11(c) and 13 were integrally linked with s. 11(d), which provides the right of a person charged with an offence to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.  Lamer J. stated at pp. 357‑58:

 

    Section 11(d) imposes upon the Crown the burden of proving the accused's guilt beyond a reasonable doubt as well as that of making out the case against the accused before he or she need respond, either by testifying or by calling other evidence.  As Laskin J. (as he then was) wrote in R. v. Appleby, [1972] S.C.R. 303, at p. 317:

 

The "right to be presumed innocent". . . is , in popular terms, a way of expressing the fact that the Crown has the ultimate burden of establishing guilt; if there is any reasonable doubt at the conclusion of the case on any element of the offence charged, an accused person must be acquitted.  In a more refined sense, the presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit (after the Crown's evidence is in and as well any evidence tendered on behalf of the accused) of any reasonable doubt:  see Coffin v. U.S. (1895), 156  U.S. 432 at 452.

 

    The Crown's "burden of establishing guilt"  and the "right of silence", i.e., the concept of a "case to meet", which are essential elements of the presumption of innocence, also underlie the non‑compellability right.  For, as Professor Ratushny has written,

 

    In many ways, it is the principle of a "case to meet" which is the real underlying protection which the "non‑compellability" rule seeks to promote.  The important protection is not that the accused need not testify, but that the Crown must prove its case before there can be any expectation that he will respond, whether by testifying himself, or by calling other evidence.  However, even where a "case to meet" has been presented, the burden of proof remains upon the Crown to the end.

 

                                                                           . . .

 

    Hence, the purpose of s. 13, when the section is viewed in the context of s. 11(c) and (d), is to protect individuals from being indirectly compelled to incriminate themselves, to ensure that the Crown will not be able to do indirectly that which s. 11(c) prohibits.  It guarantees the right not to have a person's previous testimony used to incriminate him or her in other proceedings.

 

    Having reviewed the historical origins of the rights against compellability and self‑incrimination and the policy justifications advanced in favour of their retention in more modern times, I conclude that their preservation is prompted by a concern that the privacy and personal autonomy and dignity of the individual be respected by the state.  The state must have some justification for interfering with the individual and cannot rely on the individual to produce the justification out of his own mouth.  Were it otherwise, our justice system would be on a slippery slope towards the creation of a police state.  Thus, once a charge has been laid, the privacy and autonomy of the accused is protected by s. 11( c )  of the Charter  which, in conjunction with s. 11( d )  of the Charter , requires the Crown to produce a case for the accused to meet.

 

    At the same time, the importance of getting at the truth in any proceedings, criminal or otherwise, must be recognized.  Otherwise our justice system might grind to a halt through important evidence not being brought forward.  This goal, however, must remain subservient to the protection of the fundamental rights of the accused.  It is for this reason that, while s. 11 does not speak to the non‑compellability of all individuals, s. 13 protects individuals compelled to testify in proceedings which have a legitimate adjudicative purpose

from the use of their testimony in other proceedings in which they are the accused.

 

    The question then arises whether ss. 11(c) and  13 adequately reflect the basic tenets of our justice system.  Do they afford the level of protection the principles of fundamental justice require?  If they are adequate for this purpose, then there is no room for any residual protection under s. 7.  If they are not adequate, what is the scope of any residual protection under s. 7?

 

    The first question then is are ss. 11(c) and 13 adequate to ensure fundamental justice within the meaning of s. 7?  I note first that s. 11(c) only protects against testimonial compulsion an accused "charged with an offence".  It affords no protection against such compulsion to a suspect being interrogated prior to any charge being laid.  This raises the question whether the state should be allowed to do indirectly what it cannot do directly.  Can a suspect be compelled to testify at a pre‑trial proceeding which may lead to his being charged with a criminal offence on the basis of such compelled testimony when he cannot be compelled to give that testimony at the trial itself?  If he is not protected against this by s. 11(c) because he was not a person charged with the offence at the time he made the incriminating statements, is this covered by a residual protection in s. 7?

 

    It is argued that the answer is no because this situation is covered by s. 13.  Section 13 precludes incriminating testimony given by a witness "in any proceedings" from being used "in any other proceedings" subject to the prescribed exceptions.  Accordingly, if the suspect makes an incriminating statement in the context of a "proceeding" protection against self‑incrimination is provided in s. 13 and there is no need to import such protection into s. 7.  It is suggested that the word "proceedings" should be given a large and liberal interpretation so as to cover any kind of proceeding, whether adjudicative or investigative.  This would be consistent with the principle of Charter  interpretation that we construe rights guaranteed in the Charter  so as to provide maximum protection to the citizen.  Thus, s. 13 protects the witness who incriminates himself in earlier proceedings.  The appellants would, therefore, have the benefit of the s. 13 protection in testifying before the inquiry being conducted by the Director.

 

    I note in passing, although not germane to this case, that s. 13 would not appear to cover incriminating statements made to police as part of an ordinary police investigation.  There must be a "proceeding" for s. 13 to apply.  Section 13 would not preclude the police from building up a case against a suspect from incriminating statements made by him in the course of an ordinary police investigation.  If this were to be protected against, it would presumably have to be done through s. 7 since it is not covered by either s. 11(c) or s. 13.  This is not, however, our case.  We are dealing with testimony given in the context of a proceeding.

 

    Another suggested inadequacy in the protection afforded by ss. 11(c) and 13 is that neither protects against the use of derivative evidence.  They protect only against testimonial compulsion and the use of the incriminating statements.  Is the use of derivative evidence contrary to the principles of fundamental justice in s. 7?  I think it is.  I would respectfully adopt the reasoning of the United States Supreme Court in Kastigar, supra.  As the court pointed out in that case, the privilege against self‑incrimination, if it is to be meaningful, requires that neither the testimony nor the evidence derived from the testimony be used against the witness.  I quote from p. 453 of the majority judgment:

 

We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self‑incrimination, and therefore is sufficient to compel testimony over a claim of the privilege.  While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader.  Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege.  The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted.  Its sole concern is to afford protection against being "forced to give testimony leading to the infliction of `penalties affixed to . . . criminal acts.'"  Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection.  It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.  [Emphasis in original.]

 

    It seems to me that in order to prevent a suspect from being conscripted against himself in a criminal or quasi‑criminal proceeding (which would clearly include a charge of predatory pricing under the Combines Investigation Act), the suspect must be protected against the use of evidence derived from testimony given at the earlier investigatory proceeding as well as against the use of the testimony itself.  Otherwise the suspect is convicted, metaphorically if not literally, out of his own mouth.  He has, as the U.S. Supreme Court put it, through the use of the derivative evidence been "forced to give testimony leading to the infliction of `penalties affixed to . . . criminal acts'".

 

    My colleague, La Forest J., advocates a flexible approach to the admission of derivative evidence.  He sees a solution to the problem in s. 24(2)  of the Charter  and the principles enunciated thereunder by this Court in R. v. Collins, [1987] 1 S.C.R. 265.  He points out that the trial judge has a discretion under s. 24(2) whether or not to admit "real" evidence (which for the purpose of his analogy my colleague equates to derivative evidence) if to do so would be unfair to the accused.  With respect, I see no analogy between the two situations.  The judge's discretion under s. 24(2) is no guarantee of protection against the use of derivative evidence obtained as a result of a witness's compelled testimony.  It is merely a discretion and one which is required to be exercised on a very specific basis, namely whether or not the admission of the evidence would bring the administration of justice into public disrepute.  The public repute of justice is not the relevant consideration in determining whether derivative evidence should be excluded on the ground that it was obtained as a direct result of testimonial compulsion in violation of the principles of fundamental justice.  That exclusion must be a matter of principle and of right, not of discretion.  It should be noted also that the derivative evidence we are concerned with is precisely that.  It is derivative.  There is a direct causal relationship between the compelled testimony and the derivative evidence.  Unlike the situation under s. 24(2) where this Court has held that causality is not a pre‑requisite to admissibility (see R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Brydges, [1990] 1 S.C.R. 190, causality is the sine qua non of derivative evidence.  This is why, as pointed out in Kastigar, supra, the privilege against self‑incrimination, if it is to be meaningful, requires that neither the testimony nor the evidence derived from it can be used against the witness.

 

    I conclude, therefore, that s. 7 protects the witness in a subsequent criminal proceeding against the use of evidence derived from testimony given by him in an earlier proceeding, which protection is not available under either ss. 11(c) or 13.  Where a person's right to life, liberty and security of the person is either violated or threatened, the principles of fundamental justice require that such evidence not be used in order to conscript the person against himself.

 

    It was vigorously argued by the respondents in this Court that to find such protection in s. 7 would result in a marked extension of the law as it has existed in Canada for nearly a century and that such a change could not therefore be mandated by a principle of fundamental justice or the basic tenets of our justice system.  The respondents assert that the law in this area is properly reflected in ss. 4  and 5  of the Canada Evidence Act .  I do not find this argument persuasive.  As the appellants point out, legislation must conform to the Charter , not the reverse, regardless of how longstanding the legislation is.  Section 52  of the Constitution Act, 1982  makes this clear:

 

    52. (1)  The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

 

    This Court has struck down several pieces of legislation despite their longevity:  see, for example, R. v. Big M Drug Mart Ltd., supra, in which the Lord's Day Act fell, R. v. Morgentaler, [1988] 1 S.C.R. 30, in which s. 251  of the Criminal Code  was struck down and Hunter v. Southam Inc., supra,  in which search and seizure provisions in existence since 1923 were held to be unreasonable in 1984.  I do not doubt, of course, that the longevity of a statute is a factor to be taken into account when identifying the principles of fundamental justice.  However, it is far from being the determining factor.  My research into the development of the common law in this area indicates that broader Charter  protection is warranted at the investigatory stage than that provided by the Canada Evidence Act .

 

    The respondents also submitted, and this position was supported by some of the intervening Attorneys General, that any right of non‑compellability or right against self‑incrimination would arise only at a subsequent criminal trial (if one were instituted) and not at the pre‑trial investigatory stage.  They argued that the appropriate time for the witness to claim protection against self‑incrimination is when the evidence objected to is later sought to be introduced in a criminal proceeding against the witness qua accused.  Accordingly, they submitted, it is unnecessary to deal with the scope of the protection at this time.  With respect, this completely overlooks the fact that it is the validity of the empowering legislation which is being challenged under s. 7  of the Charter .  The witness is surely entitled to know whether the legislation under which he is being compelled to testify is constitutionally valid or not.

 

    If I am correct in the conclusions I have reached, does s. 17 of the Combines Investigation Act violate s. 7  of the Charter ?  In my opinion it does to the extent it permits the Director to compel suspects to testify in an investigatory proceeding so as to build up a case against themselves through their own self‑incriminating testimony and evidence derived from such testimony.  Section 17 expressly contemplates that such evidence may be forwarded by the Director to the Attorney General of Canada with a view to possible prosecution for a criminal offence.  Although s. 20(2) of the Act protects a witness who testifies under s. 17 from use of the testimonial evidence in a subsequent prosecution if one takes place, it does not protect the witness against use of the derivative evidence.  Accordingly, s. 17 violates the residual s. 7 right of an individual not to be compelled to testify in an investigatory proceeding with a view to possible subsequent prosecution absent legislative assurance that any derivative evidence obtained as a result of his testimony cannot be used against him in such prosecution.

 

Section 1  of the Charter 

 

    Having found that s. 17 of the Act violates s. 7  of the Charter  it remains to be seen whether it can be justified under s. 1.  Section 1  of the Charter  provides:

 

    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.

 

    Dickson C.J. in R. v. Oakes, [1986] 1 S.C.R. 103, enunciated on behalf of the Court the tests which must be satisfied before legislation can be upheld under s. 1  of the Charter .  He stated at pp. 138‑39:

 

    To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied.  First, the objective, which the measures responsible for a limit on a Charter  right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom":  R. v. Big M Drug Mart Ltd., supra, at p. 352.  The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection.  It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

 

    Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified.  This involves "a form of proportionality test":  R. v. Big M Drug Mart Ltd., supra, at p. 352.  Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups.  There are, in my view, three important components of a proportionality test.  First, the measures adopted must be carefully designed to achieve the objective in question.  They must not be arbitrary, unfair or based on irrational considerations.  In short, they must be rationally connected to the objective.  Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question:  R. v. Big M Drug Mart Ltd., supra, at p. 352.  Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter  right or freedom, and the objective which has been identified as of "sufficient importance".  [Emphasis in original.]

 

    The government's onus under Oakes is to justify the limit on the right of the citizen on a preponderance of probability.  Dickson C.J. referred to this as "a very high degree of probability" commensurate with the occasion.  I think that this comment is particularly apposite in the context of a s. 7 breach.  It will be rare, in my view, that a legislative provision can violate a principle of fundamental justice or a basic tenet of our justice system and still be demonstrably justified in a free and democratic society.

 

    Bearing this in mind, I turn my attention to the first step in the Oakes test, namely whether the government objective is of sufficient importance to override a constitutionally protected right.  The part of the Combines Investigation Act in which s. 17 appears serves two legislative purposes.  First, it provides for the effective investigation of suspected criminal and quasi‑criminal activity.  Second, it makes it possible to monitor economic activity in Canada so as to ensure that the government's economic objectives are met.  There can be little doubt that each of these legislative objectives are of sufficient importance to warrant infringement of individual rights and freedoms.  Society has a very real interest both in controlling crime and in ensuring the stability of the marketplace.  I would conclude therefore that the first step of the Oakes test is met in this case.

 

    Next, government must show that the means employed to achieve the objective are rationally connected to it.  I would accept that compelling individuals to appear and testify regarding their business activities is a rational way of monitoring compliance with the terms of the Act and the policies embodied in it.

 

    The real hurdle for the respondents is establishing that the means employed impair the appellants' rights as little as possible.  Section 17 compels individuals to come forward and testify under oath before the Restrictive Trade Practices Commission.  Since section 17 is investigatory it clearly contemplates that incriminating questions can be asked of these individuals.  Section 20(2) provides some measure of protection for these individuals since it precludes the admission of testimony of an individual in a subsequent prosecution.  However, for the reasons developed earlier, I do not consider this protection adequate.  Section 20(2) provides no greater protection than s. 5(2)  of the Canada Evidence Act and I have already indicated that the s. 5(2)  protection is not broad enough in this context to comport with the principles of fundamental justice.  These principles require an individual to be protected not only against the admission of his previous testimony in subsequent criminal or quasi‑criminal proceedings but that the state be precluded from using in such proceedings evidence derived as a result of the previous testimony.  Absent protection against the use of derivative evidence, the state is conscripting the individual against himself.  As already mentioned, the United States Supreme Court considered this problem in the context of the Fifth Amendment in Kastigar, supra.  The United States Constitution has no provision comparable to s. 1.  As a consequence any limits on constitutional rights must be read into the rights themselves.  The United States Supreme Court held that a statute which compels the testimony of an individual will only be valid if it provides protection against use of derivative evidence as well as against use of the testimony itself.  The court discussed the issue at p. 453:

 

    The statute's explicit proscription of the use in any criminal case of "testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information)" is consonant with Fifth Amendment standards.  We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self‑ incrimination, and therefore is sufficient  to compel testimony over a claim of the privilege.  While a grant of immunity must afford protection commensurate with that afforded by the privilege it need not be broader.

 

    I would respectfully adopt this statement and apply it in this appeal.  There is no evidence to suggest that the government's objective in this case would be frustrated if individuals compelled to testify were afforded derivative use protection.  Certainly the monitoring of the Canadian economy would not be  injuriously affected by such protection.  Moreover, while there may be instances when the investigation of crime or the effective enforcement of legislation may be hampered if suspects are not conscripted against themselves, such a case has not been made out here.  No evidence has been presented to the Court to show that the enforcement of the Combines Investigation Act will be drastically impaired if derivative use protection is given to persons testifying under s. 17.

 

    I would add, moreover, that even if the only effective means of enforcing criminal or quasi‑criminal legislation was to conscript individuals to testify against themselves without any protection, the legislation may still not be valid.  While it might pass the minimal impairment test, the effects of the measures adopted may be out of proportion to the objective sought to be achieved.  However, having found that the legislation in this case fails to meet the minimal impairment test, it is unnecessary to decide whether the third aspect of the Oakes test is met.

 

    I would conclude, therefore, that s. 17 of the Combines Investigation Act cannot be saved under s. 1  of the Charter  and is therefore of no force or effect by virtue of s. 52  of the Constitution Act, 1982 .

 

Section 8  of the Charter 

 

    The appellants submit also that ss. 17(1) and 17(4) of the Act violate s. 8  of the Charter  to the extent that these provisions compel an individual to make production of books, papers, records and other documents before the Commission and the Director.  The appellants contend that the impact of these provisions is not sufficiently assuaged by s. 17(3) to allow them to stand.  For ease of reference, I reproduce the relevant subsections here:

 

    17. (1)  On ex parte application of the Director, or on his own motion, a member of the Commission may order that any person resident or present in Canada be examined upon oath before, or make production of books, papers, records or other documents to such member  or before or to any other person named for the purpose by the order of such member and may make such orders as seem  to him to be proper for securing the attendance of such witness and his examination, and the production by him of books, papers, records or other documents and may otherwise exercise, for the enforcement of such orders or punishment for disobedience thereof, all powers that are exercised by any superior court in Canada, for the enforcement of subpoenas to witnesses or punishment of disobedience thereof.

 

    (3)  A member of the Commission shall not exercise power to penalize any person pursuant to this Act, whether for contempt or otherwise, unless, on the application of the member, a judge of the Federal Court of Canada or of a superior or county court has certified, as such judge may, that the power may be exercised in the matter disclosed in the application, and the member has given to such person twenty‑four hours notice of the hearing of the application or such shorter notice as the judge deems reasonable.

 

    (4)  Any books, papers, records, or other documents produced voluntarily or in pursuance of an order under subsection (1) shall within thirty days thereafter be delivered to the Director, who is thereafter responsible for their custody, and within sixty days after the receipt of such books, papers, records or other documents by him the Director shall deliver the original or a copy thereof to the person from whom such books, papers, records or other documents were received.

 

Section 8  of the Charter  provides:

 

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

 

    In Hunter v. Southam Inc. this Court discussed the general nature of the s. 8 right.  Dickson J. (as he then was) noted that s. 8, unlike its rough equivalent in the Fourth Amendment to the United States Constitution, is totally lacking in specificity and has no historical, political or philosophic context to assist in its interpretation (pp. 154‑55).  American jurisprudence, while a guide, is not determinative of the way in which s. 8 and in particular the word "unreasonable" should be interpreted.

 

    Dickson J. took a purposive approach in order to determine the interests the section was intended to protect.  He concluded that the protection granted under s. 8 was broader than the mere protection of property; it extended also to the individual's reasonable expectation of privacy.  He said at pp. 159‑60:

 

    Like the Supreme Court of the United States, I would be wary of foreclosing the possibility that the right to be secure against unreasonable search and seizure might protect interests beyond the right of privacy, but for the purposes of the present appeal I am satisfied that its protections go at least that far.  The guarantee of security from unreasonable search and seizure only protects a reasonable expectation.  This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or positively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.  [Emphasis in original.]

 

    There is no doubt that an individual's expectation of privacy goes  beyond a concern for the inviolability of his body and extends to his possessions including his books, records and other documents.  Matters of the utmost confidence are often recorded in retrievable form, be they business strategies, trade secrets or personal reflections noted in a diary.  An individual's interest in having these confidences respected can be significant and not something with which governmental agencies should lightly interfere.

 

(a)  "Seizure" Under Section 8

 

    The respondents assert that the appellants' expectation of privacy is unaffected by s. 17 since no‑one invades the appellants' offices in order to search for and take possession of the documents.  Rather, the appellants are ordered to produce the documents and, if they wish to challenge the order to produce, they can do so prior to its return date or at the hearing contemplated in s. 17(3).  It is the respondents' submission that the provisions of s. 17(1) are the equivalent of a subpoena duces tecum and that a subpoena duces tecum is not a seizure.  The respondents rely on the majority decision of the Federal Court of Appeal in Ziegler v. Hunter, supra, in which the very question under review at the present time was considered.  In that case, Hugessen and Le Dain JJ. wrote separate judgments, both finding that s. 17 of the Act did not violate s. 8  of the Charter .  Hugessen J. stated at pp. 634‑35:

 

[The words search and seizure] unmistakably imply an intrusion into the citizen's home or place of business by a third person who looks for and removes documents or things.  Searches and seizures are normally effected under a warrant or writ which is addressed to the officer conducting the search or seizure and permits him to enter the premises for those purposes.  On the other hand, under a subpoena duces tecum, no one enters a citizen's home or place of business other than himself and his invitees.  The order of the court is addressed to the witness himself and is not an authorization to intrude but rather a command to produce.

 

See also the judgment of Le Dain J. at pp. 618‑19.

 

    I must respectfully disagree.  I think that Hugessen J.'s approach ignores the fact that s. 8 protects an individual from unreasonable search or seizure.  The use of the disjunctive "or" reflects, in my opinion, the draftsman's recognition that a search can take place without a seizure and conversely  a seizure can take place without a search.  The quotation from the judgment of Hugessen J. suggests that search and seizure must always be part of a single transaction.  The clear language of s. 8 calls for a different conclusion.  I would agree with the approach taken by the trial judge in this case and by Marceau J., dissenting on this issue in Ziegler, supra, and conclude that a seizure within  the meaning of s. 8  of the Charter  is "the taking hold by a public authority of a thing belonging to a person against that person's will" (p. 630).

 

    I think that this interpretation is consistent with the approach taken by this Court in Hunter v. Southam Inc.  When an individual considers something to be "private" he considers it to be for his eyes only.  He seeks to avoid disclosure.  The consequences of disclosure are just as acute when the individual is compelled to reveal the information as they are when others seize it.  Indeed, the consequences may be harsher when the individual is compelled to produce the documentary evidence since he may well produce evidence beyond that which the governmental authorities had reasonable grounds to believe existed.  I believe, therefore, that on a purposive interpretation of the word "seizure", compulsory production constitutes a seizure within the meaning of s. 8.

 

    I would, however, add one caveat to the above conclusion.  As was discussed earlier in this judgment, the investigatory provisions of the Combines Investigation Act are criminal or quasi‑criminal in nature.  It was to this same part of the Combines Investigation Act that Dickson J. addressed himself in Hunter.  My comments should not necessarily be taken, therefore, to have application to matters outside the sphere of criminal or quasi‑criminal law.

 

    The respondents submit that there is no taking hold by a public authority and no seizure in this case because it is open to the appellants to challenge the validity of the order prior to the production of the documents.  They point out also that no documents have so far been produced or taken hold of by the Commission.  I think this is an overly narrow interpretation of the word "seizure".  In Hunter, Dickson J. stressed the importance of proper prior authorization before a search is conducted.  He stated at p. 160:

 

    If the issue to be resolved in assessing the constitutionality of searches under s. 10 were in fact the governmental interest in carrying out a given search outweighed that of the individual in resisting the governmental intrusion upon his privacy, then it would be appropriate to determine the balance of the competing interests after the search had been conducted.  Such a post facto analysis would, however, be seriously at odds with the purpose of s. 8.  That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy.  That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place.  This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.  [Emphasis in original.]

 

    In my opinion, Dickson J.'s remarks with regard to searches are equally applicable to seizures.  It makes no sense to say that s. 8 is only engaged once the private information becomes public. If that were the case, the protections afforded by s. 8 would be completely illusory.  The fact that an individual can challenge the validity of the order before producing the documents goes, in my opinion, not to the question whether a seizure has occurred but to the question whether the seizure is a reasonable one.

 

    I would conclude therefore that ss. 17(1) and 17(4) of the Combines Investigation Act contemplate a seizure within the meaning of s. 8.  The question is whether the seizure is a reasonable one.

 

(b)  "Reasonableness" Under Section 8

 

    Not all seizures violate s. 8  of the Charter ; only unreasonable ones.  Put another way, an individual is accorded only a reasonable expectation of privacy.  At some point the individual's interest in privacy must give way to the broader state interest in having the information or document disclosed.  However, the state interest only becomes paramount when care is taken to infringe the privacy interest of the individual as little as possible.  It is because of this need for delicate balancing that Dickson J. in Hunter identified several criteria which must be met if a search in a criminal investigation is to meet the test of reasonableness.  I think that these criteria were accurately summarized by J. Holland J. at trial as set out earlier in these reasons.  I would agree, however, that these criteria are not hard and fast rules which must be adhered to in all cases under all forms of legislation.  What may be reasonable in the regulatory or civil context may not be reasonable in a criminal or quasi‑criminal context.  What is important is not so much that the strict criteria be mechanically applied in every case but that the legislation respond in a meaningful way to the concerns identified by Dickson J. in Hunter.  This having been said, however, it would be my view that the more akin to traditional criminal law the legislation is, the less likely it is that departures from the Hunter criteria will be countenanced.  This seems to have been what Dickson C.J. had in mind when he said in R. v. Simmons, [1988] 2 S.C.R. 495, at p. 527, that departures from the Hunter criteria will be exceedingly rare.  It is with this in mind that I consider the scheme envisaged by s. 17 of the Act.

 

    On the question of reasonableness the respondents again stress that the legislation does not authorize an intrusive search and seizure by the authorities but rather contemplates the production of documents by the individual himself.  The respondents urge that this is comparable to an administrative subpoena duces tecum and suggest to this Court that the criteria in Hunter need not be applied to such a mechanism.  They suggest that this Court ought to follow the approach the United States Supreme Court has taken with regard to subpoena duces tecum.  That approach was set forth in Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946).  Under review in that case was a provision in The Fair Labor Standards Act which allowed for judicial enforcement of subpoena duces tecum issued by the Administrator in the course of investigations conducted pursuant to the Act.  The court discussed what must be required in order that legislation authorizing that type of procedure be valid.  Quoting from pp. 208‑9:

 

    Without attempt to summarize or accurately distinguish all of the cases, the fair distillation, in so far as they apply merely to the production of corporate records and papers in response to a subpoena or order authorized by law and safeguarded by judicial sanction, seems to be that the Fifth Amendment affords no protection by virtue of the self‑incrimination provision, whether for the corporation or for its officers; and the Fourth, if applicable, at the most guards against the abuse only by way of too much indefiniteness or breadth in the things required to be "particularly described," if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant.  The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.

 

    As this has taken form in the decisions, the following specific results have been worked out.  It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one.  It is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to command.  This has been ruled most often perhaps in relation to grand jury investigations, but also frequently in respect to general or statistical investigations authorized by Congress.  The requirement of "probable cause, supported by oath or affirmation," literally applicable in the case of a warrant, is satisfied in that of an order for production by the court's determination that the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry.  Beyond this the requirement of reasonableness, including particularity in "describing the place to be searched, and the persons or things to be seized," also literally applicable to warrants, comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry.  Necessarily, as has been said, this cannot be reduced to formula; for relevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry.

 

    I do not believe that the above approach is appropriate to the issue before us in the present appeal for two reasons.  First, as I pointed out above, s. 8  of the Charter  is a unique provision, worded quite differently from the Fourth Amendment and does not share the same historical, political and philosophic underpinnings.  Secondly, the Walling case dealt with a regulatory  and not a criminal investigation.  Section 17 of the Combines Investigation Act contemplates an investigation one of the purposes of which is to collect evidence with a view to the laying of a "criminal" charge.  Section 17  is contained in the same part of the Act as s. 10 , the section in relation to which the criteria in Hunter were imposed.  In my view, it is important to look past the "form" of the information gathering, i.e. by subpoena duces tecum, and look at the effect the information gathering has on the individual, i.e. the compulsory production of evidence which can be used in a criminal prosecution.

 

    My point can be made by way of an example.  The scheme of the Combines Investigation Act could well be imposed in the Criminal Code  and indeed originally was.  The legislation would thus allow police investigators to compel suspects to produce documents and other physical evidence in connection with a particular investigation.  Without question this would assist the police in pursuing a state purpose.  However, it would be anathema to our notions of privacy, respect for the individual and the presumption of innocence.  This is why the Criminal Code  contemplates instead the issuance of a warrant in compliance with the criteria in Hunter.

 

    For the above reasons I would conclude that the criteria set forth in Hunter must be substantially if not completely met by s. 17 of the Combines Investigation Act.  The question then is whether s. 17 does meet these criteria or at least responds to the policy concerns underlying these criteria in a meaningful way.

 

    The criteria, once again, are as follows:

 

(a)a system of prior authorization, by an entirely neutral and impartial arbiter who is capable of acting judicially in balancing the interests of the State against those of the individual;

 

(b)a requirement that the impartial arbiter must satisfy himself that the person seeking the authorization has reasonable grounds, established under oath, to believe that an offence has been committed;

 

(c)a requirement that the impartial arbiter must satisfy himself that the person seeking the authorization has reasonable grounds to believe that something which will afford evidence of the particular offence under investigation will be recovered; and

 

(d)a requirement that the only documents which are authorized to be seized are those which are strictly relevant to the offence under investigation.

 

    The respondents submit that these requirements are met in substance because it is open to the individual, prior to giving up possession of the documents, to challenge the s. 17 order before a judge either by way of an application for review or by way of s. 17(3) should the Commission try to enforce production.  In my opinion the availability of this limited form of review in no way meets the concerns underlying the Hunter criteria.  First, not all individuals will have the legal acumen to realize that this form of review is available.  Some individuals may, when met with a state demand, immediately comply with it out of a sense of obligation or a fear of the repercussions for failing to do so.  The right of review would do nothing to assist these people whereas a system requiring prior authorization undoubtedly would.  Second, since under the legislation the Director need not have reasonable and probable grounds to believe that an offence has been committed when he applies to the Commission for an order, the second criterion is entirely ignored under the legislation.  If the Commission need not be satisfied of the Director's belief, it is difficult to see what role is left for a court reviewing the Commission's decision.

 

    These criticisms also hold true with regard to the third and fourth Hunter criteria.  The legislation does not impose a requirement that the Commission satisfy itself that the Director has reasonable and probable grounds to believe that evidence of a particular offence will be uncovered through the production.  Moreover, there is no requirement in the legislation that only documents strictly relevant to the investigation of a specific offence be produced.

 

    The Commission's jurisdiction is cast in such broad terms that it is hard to envisage a situation in which a reviewing court could find that the Commission committed a jurisdictional error in issuing an order.  It has been suggested that a reviewing court might read the criteria set out in Hunter into the statute and exercise its reviewing function on that basis.  This argument must be rejected.  It is not for the courts, in effect, to amend legislation to make it constitutional.  As Dickson J. stated in Hunter, at p. 169:

 

While the courts are guardians of the Constitution and of individuals' rights under it, it is the legislature's responsibility to enact legislation that embodies appropriate safeguards to comply with the Constitution's requirements.  It should not fall to the courts to fill in the details that will render legislative lacunae constitutional.  Without appropriate safeguards legislation authorizing search and seizure is inconsistent with s. 8  of the Charter .

 

    I would conclude therefore that ss. 17(1) and 17(4) of the Act violate s. 8  of the Charter  since they authorize a seizure which does not meet the test of reasonableness set out in Hunter.

 

Section 1  of the Charter 

 

    I need not repeat the interpretive principles applicable to s. 1  of the Charter .  These have already been set forth earlier in my reasons.

 

    I have already concluded that the governmental objectives intended to be achieved in this part of the Combines Investigation Act are of sufficient importance to override constitutionally protected rights and freedoms.  I have also concluded that the means employed, the compulsory production of documents, are rationally connected to the broad purposes of the Act.  The only outstanding question then is whether or not the means employed impair the individual's s. 8 right as little as possible.

 

    I must say that I have great difficulty in understanding how any legislation authorizing an "unreasonable search or seizure" can be a "reasonable limit . . . demonstrably justified in a free and democratic society".  However, it is clear that in this case the criteria set out in Hunter are not met.  In the absence of any evidence to show that the objectives of the Act would be frustrated by adherence to the Hunter criteria, it is impossible to conclude that the s. 8 right of the appellants was minimally impaired.

 

    I would conclude therefore that ss. 17(1) and 17(4) of the Combines Investigation Act, to the extent that they compel the production of books, papers, records or other documents, violate s. 8  of the Charter  and are not saved by s. 1.  To that extent then these provisions are of no force or effect by virtue of s. 52  of the Constitution Act, 1982 .

 

5.  Conclusions

 

    Section 17 of the Combines Investigation Act violates s. 7  of the Charter  to the extent it compels suspects in what is in effect a criminal investigation to testify absent protection against the use of evidence derived as a result of that testimony in a criminal prosecution.  The provision is not saved under s. 1  of the Charter .

 

    Sections 17(1) and 17(4) of the Combines Investigation Act violate s. 8  of the Charter  to the extent they compel production of documents in relation to a criminal or quasi‑criminal matter without complying with the safeguards enunciated in Hunter.  These provisions are also not saved under s. 1  of the Charter .

 

6.  Disposition

 

    I would allow the appeal and declare s. 17 of the Combines Investigation Act to be inconsistent with ss. 7  and 8  of the Charter  and of no force or effect under s. 52(1) to the extent of the inconsistency.  I would declare the Orders to Appear made pursuant to the section to be likewise of no force or effect.  I would award the appellants their costs both here and in the Court of Appeal and I would answer the constitutional question in the affirmative.

 

//La Forest J.//

 

    The following are the reasons delivered by

 

    La Forest J. ‑‑ This appeal raises the issue whether s. 17 of the Combines Investigation Act, R.S.C. 1970, c. C‑23, which permits the examination under oath of witnesses and the production of business records in the course of carrying on an investigation under the Act violates s. 7  or s. 8  of the Canadian Charter of Rights and Freedoms .  Section 7, of course, guarantees everyone the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.  Section 8 accords everyone the right to be secure against unreasonable search or seizure.

 

    I have had the advantage of reading the reasons of my colleagues, Lamer, Wilson, L'Heureux‑Dubé and Sopinka JJ.  It says something about the complexities of the issues that I have also felt constrained to write.

 

Facts

 

    The facts and judicial history of this appeal are fully set forth in the reasons of my colleague Wilson J., and it is sufficient for me to refer only to such of these matters as are essential to an understanding of what follows.

 

    The corporate appellant, Thomson Newspapers Limited, and several of its officers, the individual appellants, were served with orders, pursuant to s. 17 of the Combines Investigation Act, to appear to be examined under oath and to produce documents described in the orders in connection with an inquiry to determine whether there was evidence that the corporation or its subsidiaries had committed the offence of predatory pricing contrary to s. 34(1)(c) of the Act.

 

    The appellants then sought a declaration before J. Holland J. of the Ontario High Court that s. 17 and the orders to appear violated ss. 7  and 8  of the Charter .  For reasons set forth in Wilson J.'s reasons, J. Holland J. held that in so far as s. 17  authorized the compulsory production of documents, it was in violation of s. 8  of the Charter , but that it did not violate s. 7:  (1986), 54 O.R. (2d) 143.  However, the Ontario Court of Appeal, for reasons also set forth in my colleague's reasons, held that s. 17  violated neither of these provisions:  (1986), 57 O.R. (2d) 257.

 

    Leave to appeal to this Court was sought and granted, [1987] 1 S.C.R. xiv, and the following constitutional question was set:

 

    1.Is section 17 of the Combines Investigation Act, R.S.C. 1970, c. C‑23, inconsistent with the provisions of ss. 7  and 8  of the Canadian Charter of Rights and Freedoms , and therefore of no force or effect?

 

    The impugned provision reads as follows:

 

    17.  (1) On ex parte application of the Director, or on his own motion, a member of the Commission may order that any person resident or present in Canada be examined upon oath before, or make production of books, papers, records or other documents to such member or before or to any other person named for the purpose by the order of such member and may make such orders as seem to him to be proper for securing the attendance of such witness and his examination, and the production by him of books, papers, records or other documents and may otherwise exercise, for the enforcement of such orders or punishment for disobedience thereof, all powers that are exercised by any superior court in Canada for the enforcement of subpoenas to witnesses or punishment of disobedience thereof.

 

    (2)  Any person summoned under subsection (1) is competent and may be compelled to give evidence as a witness.

 

    (3)  A member of the Commission shall not exercise power to penalize any person pursuant to this Act, whether for contempt or otherwise, unless, on the application of the member, a judge of the Federal Court of Canada or of a superior or county court has certified, as such judge may, that the power may be exercised in the matter disclosed in the application, and the member has given to such person twenty‑four hours notice of the hearing of the application or such shorter notice as the judge deems reasonable.

 

    (4)  Any books, papers, records, or other documents produced voluntarily or in pursuance of an order under subsection (1) shall within thirty days thereafter be delivered to the Director, who is thereafter responsible for their custody, and within sixty days after the receipt of such books, papers, records or other documents by him the Director shall deliver the original or a copy thereof to the person from whom such books, papers, records or other documents were received.

 

    (5)  A justice before whom any thing seized pursuant to a search warrant issued with reference to an offence against this Act is brought may, on the application of the Director, order that such thing be delivered to the Director, and the Director shall deal with any thing so delivered to him as if delivery of it had been made to him pursuant to subsection (4).

 

    (6)  Every person summoned to attend pursuant to this section is entitled to the like fees and allowances for so doing as if summoned to attend before a superior court of the province in which he is summoned to attend.

 

    (7)  The Minister may issue commissions to take evidence in another country, and may make all proper orders for the purpose and for the return and use of evidence so obtained.

 

    (8)  Orders to witnesses issued pursuant to this section shall be signed by a member of the Commission.

 

    It should be noted that s. 20 of the Act provides for a number of safeguards for witnesses and persons being investigated.  Of particular relevance is s. 20(2) dealing with incriminating evidence, which in Wilson J.'s view affords insufficient protection to witnesses to permit s. 17 to withstand Charter  scrutiny.  That provision reads as follows:

 

    20.  . . .

 

    (2)  No person shall be excused from attending and giving evidence and producing books, papers, records or other documents, in obedience to the order of a member of the Commission, on the ground that the oral evidence or documents required of him may tend to criminate him or subject him to any proceeding or penalty, but no oral evidence so required shall be used or receivable against such person in any criminal proceedings thereafter instituted against him, other than a prosecution under section 121  of the Criminal Code  for perjury in giving such evidence or a prosecution under section 124  of the Criminal Code  in respect of such evidence.

 

Section 8  of the Charter 

 

    I shall deal first with s. 8  of the Charter .  I agree with Wilson J. that that provision grants the right to be secure not only against searches, but against seizures as well.  I so stated in R. v. Dyment, [1988] 2 S.C.R. 417, at p. 431, where I went on to add that the essence of a seizure was the taking of a thing from a person by a public official without that person's consent.  I see little difference between taking a thing and forcing a person to give it up.  I thus also agree with Wilson J. that an order to produce documents under s. 17 of the Act constitutes a seizure within the meaning of s. 8  of the Charter .  The real question under s. 8, therefore, is whether a seizure made under s. 17  can be considered a reasonable seizure.

 

Reasonableness and the Nature of the Legislation

 

    The difficulty of this question is brought sharply into focus by the opposing reasons of Wilson and L'Heureux‑Dubé JJ.  Underlying their different approaches to the constitutionality of s. 17 is a disagreement as to the juristic character of the Act.  Whereas Wilson J. views it essentially as criminal law, L'Heureux‑Dubé J. views it as regulatory, and hence as part of our administrative law.  The resolution of this issue is crucial to the disposition of this appeal.  Since the adoption of the Charter , Canadian courts have on numerous occasions taken the view that the standard of reasonableness which prevails in the case of a search or seizure made in the course of enforcement of the criminal law will not usually be appropriate to a determination of reasonableness in the administrative or regulatory context; see Re Alberta Human Rights Commission and Alberta Blue Cross Plan (1983), 1 D.L.R. (4th) 301 (Alta. C.A.), at p. 307; R. v. Rao (1984), 46 O.R. (2d) 80 (C.A.), at p. 96; Re Belgoma Transportation Ltd. and Director of Employment Standards (1985), 51 O.R. (2d) 509 (C.A.), at p. 512; R. v. Quesnel (1985), 12 O.A.C. 165, at p. 169; Bertram S. Miller Ltd. v. R., [1986] 3 F.C. 291 (C.A.), at pp. 319, 324 and 341‑43; R. v. Bichel, [1986] 5 W.W.R. 261 (B.C.C.A.), at pp. 271‑73.  The same approach underlies the decision of this Court in R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 000, released concurrently, in which an order to produce documents issued under s. 231(3) of the Income Tax Act is viewed as administrative and held to be not unreasonable under s. 8  of the Charter .

 

    The application of a less strenuous and more flexible standard of reasonableness in the case of administrative or regulatory searches and seizures is fully consistent with a purposive approach to the elaboration of s. 8.  As Dickson J. made clear in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, the purpose of s. 8 is the protection of the citizen's reasonable expectation of privacy (p. 159).  But the degree of privacy the citizen can reasonably expect may vary significantly depending upon the activity that brings him or her into contact with the state.  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.

 

    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.  As A. D. Reid and A. H. Young point out in their article "Administrative Search and Seizure Under the Charter " (1985), 10 Queen's L.J. 392, at p. 399, there is a "large circle of social and business activity in which there is a very low expectation of privacy", and in which the "issue is not whether, but rather when, how much, and under what conditions information must be disclosed to satisfy the state's legitimate requirements" (emphasis in original).

 

    The situation is, of course, quite different when the state seeks information, not in the course of regulating a lawful social or business activity, but in the course of investigating a criminal offence.  For reasons that go to the very core of our legal tradition, it is generally accepted that the citizen has a very high expectation of privacy in respect of such investigations.  The suspicion cast on persons who are made the subject of a criminal investigation can seriously, and perhaps permanently, lower their standing in the community.  This alone would entitle the citizen to expect that his or her privacy would be invaded only when the state has shown that it has serious grounds to suspect guilt.  This expectation is strengthened by virtue of the central position of the presumption of innocence in our criminal law.  The stigma inherent in a criminal investigation requires that those who are innocent of wrongdoing be protected against overzealous or reckless use of the powers of search and seizure by those responsible for the enforcement of the criminal law.  The requirement of a warrant, based on a showing of reasonable and probable grounds to believe that an offence has been committed and evidence relevant to its investigation will be obtained, is designed to provide this protection.

 

The Juristic Character of Combines Legislation

 

    Applying the above distinction to this appeal, I think the initial question can be stated in the following form:  what degree of privacy can those subject to investigation under the Combines Investigation Act reasonably expect in respect of the activities and matters with which such investigation may be concerned?  In approaching this question, I would first of all point out that I do not regard the fact that the Act and its predecessors were characterized as criminal law for the purposes of division‑of‑powers analysis as at all determinative.  That characterization depended largely on the restrictive reading given by the Privy Council to the trade and commerce power, a reading which has since been largely modified; see General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, at pp. 658‑63.  Quite apart from this, even if the Act may legitimately be looked upon as falling under the criminal law power for the purposes of s. 91  of the Constitution Act, 1867 , this would not preclude alternative characterizations that would place the Act under another head of federal legislative power more germane to the present issue; see Attorney General of Canada v. Canadian National Transportation Ltd., [1983] 2 S.C.R. 206; R. v. Wetmore, [1983] 2 S.C.R. 284.

 

    Nor do I regard it as determinative that the Act defines offences and provides for the imprisonment of those who commit them.  While I recognize that these features give the Act something of the flavour of criminal law, I do not believe that the fact that an Act provides for sanctions usually associated with the criminal law necessarily means that those subject to its operation have the same expectations of privacy as persons suspected of committing what are by their very nature criminal offences.  While I will have more to say about this matter later, it is for the present sufficient to observe that there are pragmatic reasons for the inclusion of imprisonment among the sanctions provided for in the Act which do not alter its essential character as regulatory legislation and which are in fact indicative of the activities and matters it is designed to regulate.

 

    What, in my view, is determinative is the nature of the conduct addressed by the legislation and the purposes for which it is designed to regulate that conduct.  There can be little doubt that the conduct prohibited by the Act is far removed from what is the typical concern of the criminal law system, i.e., the "underlining [of] crucial social values" (emphasis added) where "[t]he sort of things prohibited ‑- acts of violence, dishonesty and so on -‑ are acts violating common sense standards of humanity" which we regard as meriting disapprobation and punishment; see Law Reform Commission of Canada, Our Criminal Law (1976), at pp. 3, 5 and 7; see also R. v. Chiasson (1982), 135 D.L.R. (3d) 499 (N.B.C.A.), at p. 503; reasons adopted [1984] 1 S.C.R. 266; R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 70.  At bottom, the Act is really aimed at the regulation of the economy and business, with a view to the preservation of the competitive conditions which are crucial to the operation of a free market economy.  This goal has obvious implications for Canada's material prosperity.  It also has broad political overtones in that it is aimed at preventing concentration of power, of critical importance in the present case as it involves control of the press.  It must be remembered that private organizations can be just as oppressive as the state when they gain such a dominant position within their sphere of operations that they can effectively force their will upon others.

 

    The conduct regulated or prohibited by the Act is not conduct which is by its very nature morally or socially reprehensible.  It is instead conduct we wish to discourage because of our desire to maintain an economic system which is at once productive and consistent with our values of individual liberty.  It is, in short, not conduct which would be generally regarded as by its very nature criminal and worthy of criminal sanction.  It is conduct which is only criminal in the sense that it is in fact prohibited by law.  One's view of whether it should be so proscribed is likely to be functional or utilitarian, in the sense that it will be based on an assessment of the desirability of the economic goals to which combines legislation is directed or its potential effectiveness in achieving those goals.  It is conduct which is made criminal for strictly instrumental reasons.

 

    The Act is thus not concerned with "real crimes" but with what has been called "regulatory" or "public welfare" offences.  The distinction is clearly made by the Law Reform Commission of Canada in Criminal Responsibility for Group Action (Working Paper 16, 1976), at pp. 11‑12.  After having defined real crimes as those concerned with the reinforcement of society's fundamental values, the Commission says, at p. 12, that a regulatory offence

 

. . . is not primarily concerned with values, but with results.  While values necessarily underlie all legal prescriptions, the regulatory offence really gives expression to the view that it is expedient for the protection of society and for the orderly use and sharing of society's resources that people act in a prescribed manner in prescribed situations, or that people take prescribed standards of care to avoid risks of injury.  The object is to induce compliance with rules for the overall benefit of society.

 

    The regulatory nature of the offences defined in the Act is made clear by even a cursory consideration of the secondary literature on Canadian competition law.  That literature concerns itself with the question of whether Canada should have anti‑combines legislation as much as with the sufficiency and details of the legislation.  The potential effectiveness of combines legislation in achieving the goals I have referred to, and the possible ill‑effects the pursuit of these goals may have on our international competitiveness, have been much debated.  It is difficult to imagine a similarly pragmatic and instrumental debate in respect of the offences, such as murder, assault, or theft, which we would immediately and unhesitatingly regard as concerned with criminal behaviour and deserving of punishment.

 

    In the judicial sphere, the regulatory character of the Act has recently been recognized by this Court.  In General Motors of Canada Ltd. v. City National Leasing, supra, the Court considered whether s. 31.1 of the Act, which creates a private right of action in respect of loss suffered as a result of conduct contrary to the Act or an order made under it by a court or the Restrictive Trade Practices Commission, was ultra vires Parliament.  After reviewing and describing the overall structure of the Act, Dickson C.J., speaking for the Court, summarized his findings, at p. 676, as follows:

 

    From this overview of the Combines Investigation Act I have no difficulty in concluding that the Act as a whole embodies a complex scheme of economic regulation.  The purpose of the Act is to eliminate activities that reduce competition in the market‑place.  The entire Act is geared to achieving this objective.  The Act identifies and defines anti‑competitive conduct.  It establishes an investigatory mechanism for revealing prohibited activities and provides an extensive range of criminal and administrative redress against companies engaging in behaviour that tends to reduce competition.  In my view, these three components, elucidation of prohibited conduct, creation of an investigatory procedure, and the establishment of a remedial mechanism, constitute a well‑integrated scheme of regulation designed to discourage forms of commercial behaviour viewed as detrimental to Canada and the Canadian economy.

 

    This assessment of the Act is consistent with the above discussion.  First and most obviously, it refers to the Act as a "complex scheme of economic regulation" (emphasis added) which is "designed to discourage forms of commercial behaviour viewed as detrimental to Canada and the Canadian economy".  In other words, the Act does not seek to prevent the proscribed conduct as an end in itself, but seeks instead to prevent the results to which it is believed the behaviour will lead.  More subtly, in describing the criminal and administrative remedies which the Act provides for as "the establishment of a remedial mechanism", Dickson C.J. suggests that the use of criminal sanctions in this area is pragmatic or functional in the sense that Parliament has made the determination that such sanctions are necessary to induce compliance with the Act.

 

    This is so, not only of the fines that may be imposed under the Act, but of the sanction of imprisonment that may be imposed in respect of a number of provisions under the Act.  For example, a prison sentence of up to five years, with or without an accompanying fine, can be imposed on any individual found guilty of the following offences:  conspiracy in respect to various forms of anti‑competitive behaviour (s. 32); bid‑rigging (s. 32.2); false advertising (s. 36); the making of unsubstantiated representations as to tests and testimonials (s. 36.1); pyramid selling (s. 36.3); referral selling (s. 36.4); offences in relation to the holding of promotional contests (s. 37.2); price maintenance (s. 38); improper refusal to supply (s. 38).  In addition, a person can be sentenced to two years in prison under s. 33, which refers to monopolies and mergers, as well as under s. 34, which defines various illegal trade practices.  A two‑year sentence can also be imposed under any of the sections dealing with false advertising, representations as to tests or testimonials, or pyramid and referral selling, provided that they are prosecuted by way of summary proceeding.  Again, such a sentence may be accompanied by a fine.  Finally, there are several sections which provide for the penalty of a one‑year term in prison, such as s. 37.1 (selling above advertised price).

 

    I should perhaps elaborate on the underlying reasons for these sanctions.  In terms of enforcement mechanisms, combines legislation cannot rely on the type of periodic on‑site inspection which is characteristic of many other types of regulatory legislation.  This is because it regulates economic activity generally, whereas most other types of regulatory legislation are designed to deal only with certain trades or businesses.  To undertake the periodic visitation of all or even most businesses operating within Canada would, from a financial and administrative standpoint, be a massive and perhaps impossible task.  Even if it could be financed and effectively managed, it would necessarily involve the regular disruption of business activity, which could in turn decrease overall economic efficiency.

 

    For this reason, as both Canadian and American writers have maintained, the effective implementation of anti‑combines or anti‑trust legislation depends on the willingness of businesses to conform to the standards of conduct defined in such legislation independently of the frequency or likelihood of state inspection; see P. K. Gorecki and W. T. Stanbury, "Canada's Combines Investigation Act:  The Record of Public Law Enforcement, 1889‑1976", in J. R. S. Prichard, W.  T. Stanbury and T. A. Wilson, eds., Canadian Competition Policy:  Essays in Law and Economics (1979), at p. 173; E. Rostow, Planning for Freedom (1962), at p. 307.  Discussion of the means by which this tendency towards "voluntary" compliance can be encouraged has quite naturally focussed on the question of sanctions.  As an alternative to regular or periodic and unannounced inspection as a means of achieving behaviour modification, the approach in competition law has been to provide for penalties capable of counterbalancing the incentive to flout the law which a low expectation of detection might otherwise produce.  In the vast majority of cases, fines will not be sufficient to the task.  Regardless of whether they are imposed on the corporation or its officers, they will usually be paid for by the former.  Unless they were to be set at so high a level as to be capable of putting violators out of business (a result that would in most cases be politically and economically indefensible), such fines would simply be treated as part of the cost of doing business.  When measured against the relatively low probability of detection, the possibility of suffering a loss by way of a fine may seem inconsequential as compared to the likelihood of making or increasing profits through anti‑competitive practices.

 

    For these reasons, fines are unlikely to encourage the kind of compliance that is necessary if the objectives of combines legislation are to be realized.  This is the ultimate rationale for the imprisonment of those responsible for the operation of the company or unincorporated business which engages in anti‑competitive conduct.  Obviously, there is no way in which the cost of such a penalty can be passed on to the employing company or business.  It can only be paid by the officers of the company or business.  This introduces an element of personal vulnerability into business decision‑making, in so far at least as it relates to the type of conduct and practices proscribed by the Combines Investigation Act.  The result is that the provisions of the Act are much more likely to be a part of the process by which the company or business decides between alternative courses of conduct.  It goes without saying that it also increases the probability that conduct that violates the Act will not be engaged in.

 

    From this perspective it can be seen that the terms of imprisonment provided by the Act are closely and rationally related to the Act's regulatory purpose.  To a very large extent, the effectiveness of the Act depends upon the degree to which it is complied with by business organizations, and this in turn depends on the existence of a sanction which will force officers and managers to regard the decision‑making of their company or unincorporated employer as a matter of personal responsibility.  I believe that this goes far towards justifying any moral or social stigma which imprisonment or its possibility lends to the Act's investigatory machinery.  Given that all business ultimately benefits from the competitive conditions the Act is designed to protect, and given that the effectiveness of the Act in protecting these conditions depends on the existence of a compliance incentive other than regular or periodic inspection by anti‑combines authorities, this stigma can be seen as a price that has to be paid in return for the continued enjoyment of the conditions upon which modern business depends.

 

    As a final comment, I would point out that the Combines Investigation Act is not, as regards sanctions, unlike the Income Tax Act.  Under section 239 of the latter Act, a taxpayer can be liable to imprisonment to a term "not exceeding 5 years", provided he is, at the election of the Attorney General of Canada, proceeded against by way of indictment.  The offences in relation to which this punishment can be imposed are defined in s. 239(1).  They include making "false or deceptive statements in a return, certificate, statement or answer filed or made as required by or under this Act" (s. 239(1)(a)); destroying, altering or secreting records or books "to evade payment of a tax imposed by this Act" (s. 239(1)(b)); making or acquiescing in the omission of "a material particular" from the "records or books of account of a taxpayer" (s. 239(1)(c)); evading "wilfully, in any manner . . . compliance with this Act or payment of taxes imposed by this Act" (s. 239(1)(d)); and conspiring "with any person to commit an offence described by paragraphs (a) to (d)" (s. 239(1)(e)).  All of these offences relate to conduct that might well be discovered by the exercise of the power to order the production of documents which s. 231(3) confers on the Minister of National Revenue.  This has not prevented this Court from characterizing s. 231(3) as a regulatory or administrative power of investigation; see R. v. McKinlay Transport Ltd., supra.  I do not see why we should regard the possibility of imprisonment as having a different effect in the case of s. 17 of the Combines Investigation Act.

 

    To recapitulate, the relevance of the regulatory character of the offences defined in the Act is that conviction for their violation does not really entail, and is not intended to entail, the kind of moral reprimand and stigma that undoubtedly accompanies conviction for the traditional "real" or "true" crimes.  It follows that investigation for purposes of the Act does not cast the kind of suspicion that can affect one's standing in the community and that, as was explained above, entitles the citizen to a relatively high degree of respect for his or her privacy on the part of investigating authorities.  This does not, of course, mean that those subject to investigation under the Act have no, or no significant, expectation of privacy in respect of such investigations.  The decision of this Court in Hunter v. Southam Inc., supra, makes clear that they do.  But it does suggest that the degree of privacy that can reasonably be expected within the investigative scope of the Act is akin to that which can be expected by those subject to other administrative and regulatory legislation, rather than to that which can legitimately be expected by those subject to police investigation for what I have called "real" or "true" crimes.

 

Rights of Privacy in Business Records

 

    In so far as s. 17 of the Act is concerned, this conclusion is strengthened by the fact that it will be typically, if not exclusively, used to order the production of business records.  I take it as axiomatic, on standard administrative law principles, that s. 17 can only be activated by either the Director of Investigations or the members of the Restrictive Trade Practices Commission in the course of an inquiry or investigation which they are by the Act empowered to undertake.  The matters about which the Act allows or requires inquiry or investigation concern, without exception, business decisions or practice, and it would, I think, be a very rare situation in which documents of a personal nature could be relevant to their investigation.  This means that business records and documents will normally be the only records and documents that can lawfully be demanded under s. 17.

 

    While such records are not devoid of any privacy interest, it is fair to say that they raise much weaker privacy concerns than personal papers.  The ultimate justification for a constitutional guarantee of the right to privacy is our belief, consistent with so many of our legal and political traditions, that it is for the individual to determine the manner in which he or she will order his or her private life.  It is for the individual to decide what persons or groups he or she will associate with, what books he or she will read, and so on.  One does not have to look far in history to find examples of how the mere possibility of the intervention of the eyes and ears of the state can undermine the security and confidence that are essential to the meaningful exercise of the right to make such choices.  But where the possibility of such intervention is confined to business records and documents, the situation is entirely different.  These records and documents do not normally contain information about one's lifestyle, intimate relations or political or religious opinions.  They do not, in short, deal with those aspects of individual identity which the right of privacy is intended to protect from the overbearing influence of the state.  On the contrary, as already mentioned, it is imperative that the state have power to regulate business and the market both for economic reasons and for the protection of the individual against private power. Given this, state demands concerning the activities and internal operations of business have become a regular and predictable part of doing business.  Under these circumstances, I cannot see how there could be a very high expectation of privacy in respect of the records and documents in which this information is contained.

 

    My views regarding the limited privacy interest in business records are amply supported, as my colleague L'Heureux‑Dubé J. has demonstrated, by the American courts in assessing the constitutionality of subpoena duces tecum; see Hale v. Henkel, 201 U.S. 43 (1906); Wilson v. United States, 221 U.S. 361 (1911); United States v. Morton Salt Co., 338 U.S. 632 (1950); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946).  These cases, it is true, are largely framed in terms of the interrelationship of the state to corporations, and there is no question that the considerations I have described above are even more apparent in the case of corporations.  There is nothing either in s. 17 itself or any other section of the Act to suggest that it is limited to the seizure of the records and documents of corporations.  However, this would certainly usually be the case.  No authority need be cited for the propositions that our economy is dominated by large corporations and that most of the economic activity with which the Act is concerned happens within or is organized by corporations.  As in the present case, it is the conduct of corporations that will typically be investigated, and the records and documents of corporations that will be subpoenaed under s. 17.  Competition law, therefore, functions largely within the corporate environment.

 

    In fact, however, I do not view the expectations of privacy relating to business documents of corporations as significantly different for present purposes from those of business enterprises functioning under other legal regimes.  Officers of the company and other individuals may also be implicated by what is found in corporate documents.  Besides, it would be strange if the ambit of the Act were required to be limited by a consideration of the legal mechanism employed to conduct business rather than the nature of the behaviour sought to be regulated.  The notion that a distinction is called for because the corporation is a creature of the state, which appears in United States jurisprudence, will not, in my view, withstand scrutiny.  It is the policy considerations underlying the legislation that are relevant, and while these considerations apply with greater force to corporate bodies (hence the concentration on them in practice), they are also relevant to other business entities as well.

 

    I, therefore, conclude that those who are ordered under s. 17 of the Combines Investigation Act to "make production of books, papers, records or other documents" can claim only a limited expectation of privacy in respect of those books, papers, records or documents.  The relevant question in this appeal then becomes whether s. 17 unreasonably infringes on this limited expectation of privacy.

 

Sections 10 and 17 -‑ Hunter v. Southam Inc.

 

    The foregoing conclusion is in no way inconsistent with this Court's decision in Hunter v. Southam Inc., supra, notwithstanding that it also concerned the constitutionality of investigative powers under the Combines Investigation Act, specifically those provided by s. 10.  While there are in that case some passing remarks that might arguably suggest that the Act was regarded as being of a criminal character (see pp. 154 and 167), the distinction between regulatory and true criminal offences was not even mentioned, let alone considered.  I see no reason, therefore, why these elliptic references should be construed as holding that the Act and all the other legislation prescribing anti‑competitive offences must, for all purposes and in all situations, satisfy the stringent standards of reasonableness usually applicable in criminal investigations.  To do so would, in my view, severally hamper and perhaps render impossible the effective investigation of anti‑competitive offences.  These offences typically take the form of subtle alterations in otherwise perfectly legal business practices, and the effect they produce will often appear to be fully explicable by reference to the forces that normally determine success or failure in our economic system.  Investigation to a much greater degree than is the case with regard to more traditional criminal offences will often be a necessary preliminary to the determination of whether the commission of an offence should even be suspected.  To hold that anti‑combines investigators must always obtain a warrant by showing reasonable and probable grounds as to the commission of an offence and the existence of relevant evidence before they exercise any power of investigation that falls within the ambit of s. 8  of the Charter  would, in these circumstances, immunize perpetrators of anti‑competitive offences from discovery and prosecution.

 

    I see no reason to interpret Hunter v. Southam Inc. in this rigid fashion.  It must be remembered that that case was concerned with the constitutionality of s. 10 of the Act, and that that provision, unlike s. 17, conferred on the Director of Investigations a power of search as well as seizure.  It must surely be obvious that a power to search premises and take away documents is far more intrusive than a mere power to order the production of documents.  Accordingly, the fact that the power there was held to be an unreasonable violation of reasonable expectations of privacy in no way determines that a power to order the production of documents must also be held to be an unreasonable intrusion on privacy.  I can do no better in this regard than to refer to the reasons of Wilson J. in the companion case of R. v. McKinlay Transport Ltd., supra.  At pages 000 of her reasons, she says, in respect of the Minister of Revenue's power to order the production of documents from taxpayers:

 

The greater the intrusion into the privacy interests of an individual, the more likely it will be that safeguards akin to those in Hunter will be required.  Thus, when the tax officials seek entry onto the private property of an individual to conduct a search or seizure, the intrusion is much greater than a mere demand for production of documents.  The reason for this is that, while a taxpayer may have little expectation of privacy in relation to his business records relevant to the determination of his tax liability, he has a significant privacy interest in the inviolability of his home.

 

    With appropriate modifications, this statement perfectly summarizes the difference between this appeal and Hunter v. Southam Inc.  To paraphrase Wilson J., I would say that while a business, be it incorporated or unincorporated, may have little expectation of privacy in relation to its business records relevant to an investigation under the Act, it has a significant privacy interest in the inviolability of its business premises.  It must be added that its owners and managers also have a significant privacy interest in the inviolability of their private homes, since there was nothing in s. 10 to restrict the Director's powers of search to business premises.

 

    The proposition that those associated with a business have a greater privacy interest in the physical integrity of their homes than in the records and documents of that business should require no demonstration.  But this hardly means that a significant privacy interest does not also subsist in relation to one's business premises.  While it can fairly be said that business records do not usually contain information relating to one's personal affairs, opinions and associations, the same cannot be said with confidence of everything that may be found or observed in business files or premises.  People who work in offices (the type of workplace that would typically be searched under combines legislation) think of their own offices as personal space in a manner somewhat akin to the way in which they view their homes, and act accordingly.  In part this reflects an understandable need to humanize an environment in which people spend a good deal of their waking hours.  It may in part reflect the simple reality that human life is not divisible into mutually exclusive compartments of professional and personal which correspond with the office and the home.  Indeed, an office may actually be more private than the home in so far as one's relations with family are concerned.  Whatever the reason, it is a fact that in an office one is likely to find personal letters, private telephone and address directories, and many other indicators of the personal life of its occupant.  The requirement to submit to a search of business premises by agents of the state can therefore amount to a requirement to reveal aspects of one's personal life to the chilling glare of official inspection.  It seriously invades the right to be secure against unreasonable search and seizure.  This is not the case with a power to order the production of records and documents relevant to the investigation of anti‑competitive offences; there the eyes of the state can see no further than the business records it is entitled to demand.

 

The Nature and Purpose of Section 17

 

    The greater intrusiveness of the investigative powers challenged in Hunter v. Southam Inc. fully supported the application in that case of the stringent criteria of reasonableness reproduced in Wilson J.'s reasons.  By the same token, the limited scope of the power to order the production of documents, together with the limited privacy interests that can be said to reside in the records and documents that can be lawfully demanded, makes these criteria inappropriate for determination of the constitutionality of s. 17.  As I have already suggested, their application might make our anti‑combines legislation practically unenforceable.  In particular, it would be regrettable if the power to order production of documents was dependent, as it would be under the Hunter v. Southam Inc. criteria, on the ability to establish reasonable and probable grounds to believe that an offence under the Act had been committed.

 

    That is so because of the difficulty of discovering violations of combines legislation.  While investigatory difficulties are obviously a concern in all law enforcement activity, it is important to note the distinctive nature of those encountered by authorities charged with the enforcement of anti‑combines legislation.  In the traditional police investigation, there will typically be no question that an offence has been committed.  A body will have been found, a person will report the theft of their belongings or an attack on their person, or a person will have been observed engaging in a prohibited course of conduct.  In other words, the commission of most of the offences typically investigated by the police requires the creation of physical evidence or at least a course of conduct that is physically observable.  This means that the usual problem in a police investigation will not be to determine whether the law has been broken, but will instead be the difficulty of linking a particular person or persons to the offence that is known to have been committed.

 

    In the case of anti‑combines legislation, the situation is quite different.  Under the Combines Investigation Act, an inquiry by the Director of Investigation and Research or a member of the Restrictive Trade Practices Commission, or the Commission itself, can relate either to the granting or violation of an order under Part V of the Act or the commission of an offence under Part VI.  Both the conduct constituting a violation of such order and the conduct constituting an offence are, with exceptions, not generally observable by third parties; nor do they produce a result that announces (or perhaps even strongly indicates) that they have in fact been engaged in.  For the most part, they take place within the hidden boardrooms and offices of corporations.  They can, in some cases at least, be engaged in by the most subtle of alterations in otherwise totally legitimate activities, such as the pricing of goods or the decision as to whether or not to submit a bid in response to particular tenders.  The corollary of this last point is that many of the regulated or proscribed forms of conduct produce results, such as the decision to supply one buyer and not another, or the decision to price a good at one possible level rather than another, or the decision to bid on one tender but not another, which are fully explicable as normal or routine business decisions.  In short, much of the conduct the Director must be able to inquire into produces no "smoking gun"; see the remarks of Estey J. in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, at p. 238, cited infra.  The following quotation from S. V. Wilson and A. H. Matz, "Obtaining Evidence for Federal Economic Crime Prosecutions:  An Overview and Analysis of Investigative Methods" (1977), 14 Am. Crim. L. Rev. 651, at p. 651, encapsulates the problems involved in investigating economic crimes generally:

 

    But economic crimes are far more complex than most other federal offences.  The events in issue usually have occurred at a far more remote time and over a far more extensive period.  The "proof" consists not merely of relatively few items of real evidence but of a large roomful of often obscure documents.  In order to try the case effectively, the Assistant United States Attorney must sometimes master the intricacies of a sophisticated business venture.  Furthermore, in the course of doing so, he, or the agents with whom he works, often must resolve a threshold question that has already been determined in most other cases:  Was there a crime in the first place?  To use the colloquial, it is not so much a matter of "whodunit" as "what‑was‑done".  [Emphasis added.]

 

    For example, s. 32.2, which makes it an offence to be party to a bid‑rigging arrangement, defines bid‑rigging as "an agreement or arrangement between or among two or more persons whereby one or more of such persons agrees or undertakes not to submit a bid in response to a call or request for bids or tenders", or "the submission . . . of bids or tenders that are arrived at by agreement or arrangement between or among two or more bidders or tenderers".  The implementation of such an arrangement would in many cases be indistinguishable from the usual process by which tenders are submitted and in which tenderers decide between jobs based on their genuine assessment of what they are capable of doing and what they are likely to be recognized as capable of doing.  Similarly, s. 38(6) makes it an offence "by threat, promise or any like means, attempt to induce a supplier ... as a condition of his doing business with the supplier, to refuse to supply a product to a particular person or class of persons because of the low pricing policy of that person or class of persons".  Again, once implemented, such a "refusal to supply" would probably "look" like a perfectly normal pattern of commercial relations.  Similar analyses could be made, in the cases of other offences, in respect of s. 32 (conspiracy) and s. 38 (price maintenance).  In the case of the matters with respect to which the Commission can make orders under Part IV.1 of the Act, a similar analysis can be made in respect of s. 31.4 which empowers the Commission to prohibit persons from continuing to engage in exclusive dealing, market restriction or tied‑selling.

 

    In brief, because of the nature of the conduct regulated by the Act, there will in many cases be no way of determining whether proscribed conduct has been engaged in, short of studying the process by which a suspected corporation or business has made and implemented its decisions.  In this respect, the situation is not unlike that under the Income Tax Act.  I agree with Wilson J. that under the latter Act, it will often be "impossible to determine from the face of the return whether any impropriety has occurred in its preparation" (see R. v. McKinlay Transport Ltd., supra, at p. 000).  I would simply add that under the Combines Investigation Act it will likewise often be impossible for those responsible for its enforcement to determine whether it has in fact been violated.  I see no reason why this factor should be relevant to the constitutionality of the power to order production found in the former Act but irrelevant to the constitutionality of a substantially similar power found in the latter Act.  Investigatory mechanisms which force corporations and other businesses to divulge what they and only they can know about their internal affairs are part of the state's interest in the enforcement of combines legislation.  The power to subpoena books, records and documents is obviously one such investigatory mechanism.  To limit its use to situations in which the Director or a Commission member can show reasonable and probable grounds to believe that a specific offence has been committed would frustrate the process of investigation at its very inception.

 

    These considerations have played an important role in shaping the American approach to combines legislation.  Thus in United States v. Morton Salt Co., supra, the Federal Trade Commission, in the course of an anti‑trust investigation, by subpoena ordered production of certain documents to satisfy itself that previously‑issued cease and desist orders were being complied with.  In upholding the subpoena, Jackson J., writing for the court, stated at pp. 642‑43:

 

    The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so.  Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry.  It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function.  It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.  When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law.  [Emphasis added.]

 

    This passage was quoted with approval in Federal Trade Commission v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977).  In that case, one of the grounds on which the subpoena was challenged was that the relevant legislation did not provide for sufficient judicial supervision of the process by which the subpoena was issued.  In rejecting this argument, the Court of Appeal for the District of Columbia said, at pp. 872‑73, that:

 

. . . the scope of issues which may be litigated in an enforcement proceeding must be narrow, because of the important governmental interest in the expeditious investigation of possible unlawful activity.  As the Ninth Circuit has noted, the "very backbone of an administrative agency's effectiveness in carrying out the congressionally mandated duties of industry regulation is the rapid exercise of the power to investigate . . . ."  FMC v. Port of Seattle, 521 F.2d 431, 433.

 

    I acknowledge that I have found little literature dealing specifically with the importance of s. 17 to the Director and Commission's efforts to enforce the Act.  This is not really surprising given that the Director, the officer who has historically shouldered the brunt of the investigative responsibility under the Act, was until quite recently able to rely on the power to enter and search premises.  It is instructive to note, however, that in the course of an explanation of proposed amendments to the Act, the Government of Canada defended the scope of the Director's powers of investigation by emphasizing the difficulties of detection which characterize anti‑competitive offences.  At page 29 of the Minister of Consumer and Corporate Affairs' pamphlet, Combines Investigation Act Amendments 1984:  Background Information and Explanatory Notes (1984), the following appears:

 

    The powers of the Director are essential to determining both whether and to what extent offences have been committed under the Act and whether certain restrictive or predatory practices are being engaged in which should be prohibited or whether an anti‑competitive merger should be remedied.  [Emphasis added.]

 

The pamphlet goes on to characterize suggestions that all of the Director's powers of investigation should be circumscribed by a requirement equivalent to the warrant requirement in criminal law as a failure "to appreciate the nature of offences being investigated under the Act" (p. 29).

 

    Those suggestions, I think, also fail to appreciate the real function of s. 17.  Essentially, it serves the same purpose as a programme of regular inspection in other areas of the law which, as I have already noted, is neither possible nor desirable in this context.  The fact that an investigation may occur encourages compliance as in the case of inspections under other regulatory legislation.  As in the case of the Income Tax Act, discussed in R. v. McKinlay Transport Ltd., supra, the Act is to a considerable extent self‑enforcing, but, as already noted, this ultimately depends on effective sanctions which in turn depend on the possibility of adequate investigation.  Estey J. aptly describes the need for such investigation in Irvine v. Canada (Restrictive Trade Practices Commission), supra, at p. 238:

 

    The area under investigation concerns trading crimes which by nature are difficult of investigation.  Persons conspiring to profit improperly from trade combinations do not create much physical evidence and have every opportunity to disguise their conduct.  The impact of the crime on the individuals affected is in each case very small in economic terms but in gross produces sizeable criminal profit.  Again this type of crime requires more than the usual combination of informants and complainants from the public at large.  The demonstration of the crime generally requires the early and active investigative action by the state itself.  An awareness of these concerns by the legislators is apparent when the investigative program established in the Act is read as a whole.  [Emphasis added.]

 

I do not think the factors there noted are any less cogent now than they were before the enactment of the Charter .

 

    If it is unnecessary under s. 17 to establish the existence, on reasonable and probable grounds, of a belief that a particular offence has been committed, then compliance with the remaining Hunter v. Southam Inc. criteria also becomes unnecessary.  All of these are derivative from the reasonable and probable grounds requirement.  This is obviously the case in respect of the requirement to show "reasonable grounds to believe that something which will afford evidence of the particular offence under investigation will be recovered".  It is also true of the requirement that the use of the power of search or seizure must depend on "a system of prior authorization, by an entirely neutral and impartial arbiter who is capable of acting judicially in balancing the interests of the state against those of the individual".  As Wilson J. today points out in R. v. McKinlay Transport Ltd., there is no role for such an arbiter where there is no requirement of reasonable and probable grounds, since "his central role under Hunter v. Southam Inc. is to ensure that the person seeking the authorization has reasonable and probable grounds to believe that a particular offence has been committed, that there are reasonable and probable grounds to believe that the authorization will turn up something relating to that particular offence, and that the authorization only goes so far as to allow the seizure of documents relevant to that particular offence" (emphasis in original) (p. 000).  The fact that s. 17 provides for an ex parte application by members of the Commission, who in Hunter v. Southam Inc. were found to be insufficiently detached from the process of investigation for the purposes of an application for permission to search premises, is not therefore fatal to its constitutionality.

 

    Nor would it make sense to hold that s. 17 must comply with the final Hunter v. Southam Inc. criterion, the requirement "that the only documents which are authorized to be seized are those which are strictly relevant to the offence under investigation".  If it is not necessary that the investigators establish reasonable and probable grounds to believe that an offence has been committed, it cannot be necessary that a particular offence be under investigation at all.  It follows that it cannot be necessary that only documents relevant to the investigation of a particular offence be seized.

 

The Scope of Section 17

 

    I hasten to add that this does not mean that there is no limitation to the potential scope of an order to produce documents which can be validly issued under s. 17.  The material sought must be relevant to the inquiry in progress.  The question of relevancy, however, must be related to the nature and purpose of the power accorded under s. 17.  As to whether the obligation, when challenged, to satisfy this standard of relevancy can be said to make a seizure under s. 17 "reasonable" within the meaning of s. 8  of the Charter , I note that it is in American law the principal precondition to the satisfaction of the Fourth Amendment's protection against unreasonable search and seizure, in so far as that protection enures to those ordered to produce documents.

 

    In Oklahoma Press Publishing Co. v. Walling, supra, which concerned an order to produce documents issued by the Administrator of The Fair Labor Standards Act, Rutledge J., speaking on behalf of the majority of the Supreme Court, said of the Fourth Amendment that the "gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable" (p. 208).  He went on to say that, in regard to subpoena duces tecum, this did not require "that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one" (p. 209).  Instead, it was sufficient that

 

. . . the investigation be for a lawfully authorized purpose, within the power of Congress to command . . . . The requirement of "probable cause, supported by oath or affirmation," literally applicable in the case of a warrant, is satisfied in that of an order for production by the court's determination that the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry.  [Emphasis added.]

 

    It is true that Oklahoma Press Publishing Co. v. Walling was not concerned with a subpoena issued in the course of an inquiry into the violation of anti‑trust legislation, but it was applied without qualification to just such a subpoena in United States v. Morton Salt Co., supra, where Jackson J., speaking on behalf of the court, said that "it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant" (p. 652).  There are many other cases in which the "relevancy to a lawful inquiry" test has been applied to subpoenas issued by agencies or officials investigating anti‑trust violations; see People v. Allen, 103 N.E.2d 92 (Ill. 1952); Federal Trade Commission v. Tuttle, 244 F.2d 605 (2d Cir. 1957); Adams v. Federal Trade Commission, 296 F.2d 861 (8th Cir. 1961); People v. Dorr, 265 N.E.2d 601 (Ill. 1971); Federal Trade Commission v. Texaco, Inc., supra.  What is more, a modern treatise on American anti‑trust law makes it clear that American courts continue to rely on the "relevancy to a lawful inquiry test" in determining the constitutionality of subpoena issued by anti‑trust authorities; see E. W. Kintner and W. P. Kratzke, Federal Antitrust Law (1986), vol. VI, {SS} 45.25, at pp. 248‑56.

 

    The requirement that the order to produce documents be relevant to a lawful inquiry does not exhaust the American law in this area.  In Oklahoma Press Publishing Co. v. Walling, the Supreme Court said that beyond relevancy there was the Fourth Amendment requirement of sufficient particularity in "describing the place to be searched, and the persons or things to be seized", which in the case of a subpoena duces tecum "comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry" (p. 209).  It is usually said that there are two aspects to this "adequate specification" requirement.  The first is quite simply that the subpoena must be sufficiently clear and specific to inform the subpoenaed party of precisely what documents are being demanded.  The second is that the subpoena must only be as broad as is necessary for the purposes of the inquiry in progress.  An unduly broad subpoena will be struck down on grounds of burdensomness; see Federal Trade Commission v. American Tobacco Co., 264 U.S. 298 (1924), at pp. 305‑6.

 

    While both of these requirements are self‑evidently sensible, they do not in my opinion appear to have a basis distinct from the overriding requirement that the order to produce documents be relevant to a lawful inquiry.  Rather, they seem to be common sense standards by which to measure such relevancy.  The objection of overbreadth is surely only an objection that documents not relevant to the inquiry in progress are being demanded.  To the extent that it could be interpreted as an absolute bar to all subpoenas demanding the production of more than a certain number of documents, it would be inconsistent with the maxim, set down in Oklahoma Press Publishing Co. v. Walling, that "relevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry" (p. 209).  Similarly, the requirement that the subpoena be sufficiently precise and clear in terms of its identification of the documents demanded would simply be a necessary prerequisite to any determination of the relevancy of those documents to the inquiry relied on by the demanding authority.

 

    Returning to the requirement of relevancy itself, I note that under the American test, as under s. 17 of the Act, there is no requirement that relevancy to a lawful inquiry be determined before the subpoena is issued; it is sufficient if its relevancy can be challenged by way of judicial review; see W. R. LaFave, Search and Seizure:  A Treatise on the Fourth Amendment (2nd ed. 1987), vol. 2, {SS} 4.13(e), at p. 382, n. 111.  I note also that the expressed rationale for requiring no greater satisfaction of the Fourth Amendment refers to the same factors, namely the difficulty of determining whether violations of anti‑trust (and other regulatory) legislation has in fact occurred, to which I have referred earlier in these reasons.  In United States v. Morton Salt Co., supra, Jackson J., we saw, said at p. 642 that the "only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so".  In People v. Dorr, supra, which also concerned investigations under anti‑trust laws, the Supreme Court of Illinois said, at p. 603:

 

    Because of the numerous and varied activities which may constitute substantive violations of the quoted portions of the Act, grand jury investigations seeking to ascertain the probable existence of such violations must be given the broadest scope possible, consistent, of course, with constitutional limitations.  Thus in the circumstances here present, what we observed in People v. Allen, 410 Ill. 508, 517, 103 N.E.2d 92, 96, is particularly pertinent:  "In litigated cases, materiality can be fixed with a relatively high degree of precision by reference to the issues formulated in the pleadings.  No standard of comparable certainty exists with respect to an inquiry by a grand jury.  The very purpose of such an inquiry is to uncover matters previously unknown to the investigating agency."  [Emphasis added.]

 

    Both of these statements can be regarded as applications to the anti‑trust context of an assumption that underlies the position of the American courts to the constitutionality of subpoenae duces tecum in a wide range of administrative and regulatory contexts.  LaFave, op. cit., sums up this position by noting that "most courts recognize that administrative regulation of business is a necessary by‑product of industrialization and that effective regulation requires effective investigative procedures" (pp. 380‑81).  More expansively, K. C. Davis, in his book Administrative Law Text (3rd ed. 1972), says at pp. 66‑67:

 

    But a better understanding of the significance of what has happened emphasizes the inevitability.  Each step follows inexorably:  Industrialization brings regulation.  Regulation necessitates administrative processes.  Agencies cannot operate without access to facts.  Ideas about privacy, standing in the way of agencies which seek information indispensable to intelligent regulation, have to give way.  In the same way that the gasoline engine made inevitable the development of the airplane, mass production methods and all they symbolize produce complex business arrangements which bring forth equally intricate governmental mechanisms requiring effective exercise of the administrative power of investigation.  And the courts as a result feel called upon to write out of the Constitution the protections that the courts at an earlier time felt called upon to write into the Constitution.

 

    These statements suggest the same kind of connection between broad investigatory powers and effective economic regulation which I have argued is fundamental to a proper understanding of the state's interest in the enforcement of anti‑combines legislation.  The following statement from the leading case of Oklahoma Press Publishing Co. v. Walling, supra, at p. 213, is indicative of the rationale that lies behind the relaxation of Fourth Amendment rights in respect of subpoenae duces tecum:

 

. . . petitioners' view [that subpoena could only be validly issued if issued in accordance with the traditional Fourth Amendment requirements], if accepted, would stop much if not all of investigation in the public interest at the threshold of inquiry and, in the case of the Administrator, is designed avowedly to do so.  This would render substantially impossible his effective discharge of the duties of investigation and enforcement which Congress has placed upon him.  And if his functions could be thus blocked, so might many others of equal importance.

 

    I find this body of American jurisprudence, emphasizing as it does the vital importance of the power to order the production of documents in the effective regulation of modern economic enterprise, highly persuasive.  The courts in Canada, no less than those in the United States, cannot remain oblivious to the concrete social, political and economic realities within which our system of constitutional rights and guarantees must operate.  In particular, we must recognize that the Charter  alone cannot secure that full portion of individual freedom to which we aspire.  Effective regulation of the many private and democratically unaccountable institutions which are capable of exercising virtually coercive powers within their sphere of operations is also crucially important.  We cannot allow our commitment to the former preclude our further reliance on the latter.  I add that as the Canadian economy becomes increasingly integrated with the American and, indeed, the global economy, we should be wary of giving an interpretation to the Constitution that shackles the government's capacity to cope with problems that other countries, with which we share similar human, legal and constitutional values, are quite able to deal with in, to use Eugene Rostow's apt phrase, planning for freedom.

 

Conclusion

 

    Accordingly, I would on this aspect of the appeal find in favour of the respondents.  In my opinion, s. 17 of the Combines Investigation Act does not, having regard to the low expectation of privacy which those subject to its operation can be said to have in regard to the documents that fall within its scope and the important and difficult task of law enforcement in which it assists, countenance the making of unreasonable seizures within the meaning of s. 8  of the Charter .  The opportunity to challenge, by way of judicial review, the relevancy of any particular use of s. 17  to matters in respect of which the Director or Commission can conduct inquiries, provides adequate guarantee against potential abuse of the power s. 17  confers.  No evidence of any such abuse is apparent in the case before this Court.

 

Section 7  of the Charter 

 

    I turn now to consider whether s. 17 of the Combines Investigation Act contravenes s. 7  of the Charter .  I agree with my colleagues that the power conferred by s. 17  to compel any person to give oral testimony constitutes a deprivation of liberty within the meaning of s. 7.  The real question for determination is whether this deprivation is in accordance with the principles of fundamental justice.

 

The Principles of Fundamental Justice

 

    In considering this issue, I should begin with what this Court has had to say about the interrelationship of s. 7 and other provisions of the Charter  and, in particular, the bearing these other provisions have on the content of the principles of fundamental justice.  Speaking for the Court in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 326, I noted "the rather obvious point that the rights and freedoms protected by the Charter  are not insular and discrete", but are aimed rather at protecting "a complex of interacting values, each more or less fundamental to the free and democratic society that is Canada (R. v. Oakes, [1986] 1 S.C.R. 103, at p. 136)".  I further noted that the particularization of the rights in the Charter  was intended to structure and focus judicial exposition of these values.  I then added, at p. 326:

 

The necessity of structuring the discussion should not, however, lead us to overlook the importance of appreciating the manner in which the amplification of the content of each enunciated right and freedom imbues and informs our understanding of the value structure sought to be protected by the Charter  as a whole and, in particular, of the content of the other specific rights and freedoms it embodies.

 

In a word, the content of each right can only be understood by reference to other Charter  provisions.  This, I would think, is especially true of a broad expression like the principles of fundamental justice.  Lamer J., in a passage from his reasons cited by Wilson J., had made the same point in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 502‑3, where he drew particularly upon the related provisions of ss. 8 to 14 as a guide to the essential elements of our system for the administration of justice.  As he put it, ss. 8 to 14 provide "an invaluable key to the meaning of `principles of fundamental justice'".

 

    In the present case, ss. 11(c) and 13 have been particularly relied on as throwing light on the meaning of the "principles of fundamental justice".  These provisions which, respectively, protect an accused from being compelled to be a witness in proceedings against the accused, and a witness from having incriminating evidence given by that witness in a proceeding used to incriminate him or her in another proceeding, are clearly relevant in assessing the content of the principles of fundamental justice in the present context.  So too, as I shall explain in a moment, is s. 11(d) which guarantees an accused a fair trial.  Finally, as L'Heureux‑Dubé and Sopinka JJ. have observed, s. 24(2)  of the Charter , which provides that evidence may be excluded if obtained in a manner that brings the administration of justice into disrepute, must also be considered.  For it, too, provides that evidence obtained in circumstances that are offensive to our fundamental social values shall not be admitted.

 

    Sections 11(c) and 13 are, however, central to our inquiry and I shall particularly concentrate on these.  They clearly point to the fact that the privilege or right against self‑incrimination, sometimes referred to as the right to silence, forms an integral part of the principles of fundamental justice under our legal system.  Like my colleagues, I am prepared to agree that s. 7  of the Charter  may in certain contexts at least provide residual protection to the interests the right is designed to protect that goes beyond the specific protection provided by ss. 11(c) and 13.  The inability of the appellants to come within either of the latter sections is, therefore, not fatal to their claim.  I should perhaps mention, however, that the questions raised will, for the most part, be concerned with the admission of evidence.  That being so, what will really be involved in most cases is the question of a fair hearing under s. 11( d )  of the Charter , and this Court has indicated a preference for dealing with Charter  issues in relation to specific provisions rather than under s. 7 where this is possible.  On the whole, though, I think the same underlying issues would arise, and I shall deal with them, as argued, on the basis of the principles of fundamental justice.

 

    That said, however, one should not automatically accept that s. 7 comprises a broad right against self‑incrimination on an abstract level or, for that matter, on the American model, complete with all its residual doctrines.  If that had been intended, it would have been very easy to say so.  That is not what the Charter  does, and the Charter  must be read in its own terms.  Accordingly, while I am prepared to accept that s. 7 can protect the individual from fundamental unfairness arising out of self‑incriminatory statements in circumstances not covered by ss. 11(c) and 13, an assessment of what this means must be made in accordance with the spirit of those provisions.  What those provisions build upon, it seems clear, is Canadian, not American, experience.  As this Court put it in R. v. Beare, [1988] 2 S.C.R. 387, at p. 401:

 

Like other provisions of the Charter , s. 7  must be construed in light of the interests it was meant to protect.  It should be given a generous interpretation, but it is important not to overshoot the actual purpose of the right in question; see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344.

 

    The resemblance between the provisions of the Charter  and those existing under the applicable statutory regime at the time of its enactment is striking.  Textually, all that seems to have been removed from the statutory regime is that s. 13 does not contain the much criticized requirement that a witness must expressly object to the use of his or her testimony.  Textually, then, it is clearer than in many other cases that, to borrow the words of Lamer J. in Re B.C. Motor Vehicle Act, supra, at p. 503, "the principles of fundamental justice are to be found in the basic tenets of our legal system" (emphasis added).  And in attempting to determine what these basic tenets are, one must, as this Court did in R. v. Lyons, supra, at p. 327, and R. v. Beare, supra, at pp. 402‑3, "consider [the impugned measure] against the applicable principles and policies that have animated legislative and judicial practice in the field".

 

    What these practices have sought to achieve is a just accommodation between the interests of the individual and those of the state, both of which factors play a part in assessing whether a particular law violates the principles of fundamental justice; see R. v. Lyons, supra, at pp. 327 and 329; R. v. Beare, supra, at pp. 403‑5; also my reasons in R. v. Corbett, [1988] 1 S.C.R. 670, at p. 745 (dissenting on another point); see also R. v. Jones, [1986] 2 S.C.R. 284, at p. 304, per La Forest J. (Dickson C.J. and Lamer J. concurring).  The interests in the area with which we are here concerned involve particularly delicate balancing, and, as Wilson J. has demonstrated, the various common law countries have approached it in rather different ways.  I do not wish to undertake the invidious task of examining which is the better way.  All seem to me to be reasonable approaches, but what is important is that the Charter  provisions seem to me to be deeply anchored in previous Canadian experience.  By this, I do not mean that we must remain prisoners of our past.  I do mean, however, that in continuing to grope for the best balance in specific contexts, we must begin with our own experience which, as I read ss. 11(c) and 13, is what the Charter  calls upon us to do.  Indeed, quite apart from the textual arguments, the Charter  was not enacted in a vacuum, a factor referred to in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, and on which this Court relied in United States of America v. Cotroni, [1989] 1 S.C.R. 1469, at p. 1491.

 

    Two final points require mention in considering the nature of the principles of fundamental justice.  The first is that these principles vary with the context.  It was thus put in R. v. Lyons, supra, at p. 361:

 

It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked.  Thus, certain procedural protections might be constitutionally mandated in one context but not in another.

 

The second point, also mentioned in R. v. Lyons, at p. 362, is "that s. 7  of the Charter  entitles the appellant to a fair hearing; it does not entitle him to the most favourable procedures that could possibly be imagined"; see also R. v. Beare, supra, at p. 412.

 

    I turn now to the application of the principles of fundamental justice in the present context.

 

Compulsory Testimony

 

    Before moving to what I consider the central issue in this case, I find it necessary to deal with two preliminary questions.  The first is that I must with respect differ from my colleague Sopinka J. to the extent that he can be taken as saying that a power to compel testimony is by itself contrary to the principles of fundamental justice in the present case.  I recognize that as a matter of history, the rights of the subject in respect of questions from those in authority have been divided into the witness's right to have self‑incriminating answers excluded from any proceeding in which he or she subsequently faces charges, and the right of an accused to say nothing at his or her own trial.  I agree with Sopinka J. that an accused's right to silence must extend beyond the actual trial itself, but I do not think it must be extended to those who are ordered to testify in a proceeding such as that provided by s. 17 of the Combines Investigation Act.  Such an extension would seriously complicate the already difficult task of investigating the type of conduct with which the Act is concerned.  In cases where information of value to an investigation can most easily be obtained by asking questions of those responsible for the decisions and actions of particular business organizations, an absolute right to refuse to answer questions would represent a dangerous and unnecessary imbalance between the rights of the individual and the community's legitimate interest in discovering the truth about the existence of practices against which the Act was designed to protect the public.

 

    As noted earlier, this Court has made it clear that the community's interest is one of the factors that must be taken into account in defining the content of the principles of fundamental justice.  A right to prevent the subsequent use of compelled self‑incriminating testimony protects the individual from being "conscripted against himself" without simultaneously denying an investigator's access to relevant information.  It strikes a just and proper balance between the interests of the individual and the state.  An absolute right to refuse to answer questions, however, does not do so.  It makes certain information inaccessible while at the same time allowing the individual to refuse to divulge information regardless of whether it is potentially prejudicial to his or her personal interests.

 

    As also noted earlier, in assessing whether a measure violates the principles of fundamental justice, the specific context in which it operates must be steadily kept in mind.  The application of these principles must be attuned to that context.  Here it must be kept in mind that inquiries under s. 17 are inquisitorial rather than adversarial in nature, a distinction I have borrowed from E. Ratushny, Self‑Incrimination in the Canadian Criminal Process (1979), at p. 21.  They are investigations in which no final determination as to criminal liability is reached.  As I pointed out in discussing s. 8  of the Charter , unlike standard criminal investigations where the question is whether X has committed offence Y, the questions confronting investigators under the Combines Investigation Act are more likely to take the form of whether offence Y has occurred, and if so, who is likely to be responsible for its commission.  In other words, inquiries held under the Act do not focus on the conduct of a single individual in the way in which ordinary criminal investigations typically do.  They are more open ended, in the sense that the scope of the information gathering activity is not as narrowly directed to the probability of any particular individual's legal culpability.  Relative to ordinary forms of criminal investigations, the investigations conducted under s. 17 do not involve the use of state power in the interests of securing the conviction of a particular individual.

 

    I see a significant difference between investigations that are truly adversarial, where the relationship between the investigated and investigator is akin to that between accused and prosecution in a criminal trial, and the broader and more inquisitorial type of investigation that takes place under s. 17 of the Act.  The lower probability of prejudice the latter represents to any particular individual who comes within its reach, together with the important role such investigations play in the effective enforcement of anti‑combines and possibly other regulatory legislation, suggests that a more appropriate balance between the interests of the individual and the state can be achieved by retention of the power to compel testimony and the recognition of the right to object to the subsequent use of so much of the compelled testimony as is self‑incriminatory.

 

    On the latter point, I refer to my discussion under s. 8 of the special difficulty of enforcing a statute like the Combines Investigation Act where only those engaged in the activities regulated by the Act have access to the necessary information.  That discussion is as relevant to oral testimony as it is to the compelled production of documents.  There is no doubt that the power to compel testimony is important to the overall effectiveness of the investigative machinery established by the Act, in that it allows the necessary scope of particular inquiries to be defined more quickly and with greater precision than would otherwise be possible.  In this regard, it allows investigators to identify the "targets" at which they should aim their use of their other investigative powers, such as the power to order the production of documents or the giving of evidence upon affidavit.  In short, the power to compel testimony allows anti‑combines investigators to pry information from the only persons with information about the transactions being investigated, and in this way it prevents those persons and their employers from benefiting from the painstaking slowness that would otherwise characterize the investigations of those responsible for the administration of the Act.

 

Representative Witnesses

 

    My second preliminary point has to do with the effect which the corporate identity of those investigated under the Act has upon the availability of the right against self‑incrimination to those ordered to testify under s. 17.  This Court has held that a "corporation cannot avail itself of the protection offered by s. 7  of the Charter "; see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at pp. 1002‑3.  As artificial entities, corporations are simply incapable of enjoying the rights to "life, liberty and security of the person" which s. 7 guarantees.  In respect to the right against compelled self‑incrimination, this means that corporations are simply incapable of being forced to testify against themselves.  They are, in fact, incapable of acting as witnesses at all; see R. v. Amway Corp., [1989] 1 S.C.R. 21, at pp. 37‑39.  I do not think it follows, however, that the right against self‑incrimination is therefore unavailable to those who are compelled to give testimony as the representatives of a corporation.  In this regard I respectfully disagree with my colleague L'Heureux‑Dubé J.   Regardless of whether they give testimony in their representative or personal capacities, those who are compelled to testify under s. 17 are subjected to a direct and real violation of their own liberty.  The deprivation that triggers s. 7 in the case of those compelled to testify in their personal capacity is just as present in the case of those compelled to testify in their representative capacity.  I see no reason why it should be necessary to conform with the principles of fundamental justice in one case but not the other.

 

    Similarly, the prejudice that can be suffered by those compelled to testify in a representative capacity is one they experience personally.  An officer compelled to testify on behalf of his or her corporation may be subsequently charged under the Act, and it would be highly artificial to say that his or her compelled testimony could be used against him or her on the ground that its use did not amount to compelled self‑incrimination on the ground that it was technically the testimony of the company.  The reality is that once a person is compelled to give testimony, it makes no difference whether that person speaks on behalf of himself or herself, or on behalf of the corporation.  So long as such persons are liable to subsequent prosecution they are susceptible, in the absence of sufficient protection, to the prejudice against which the right against self‑incrimination is intended to guard.  This reality is one of the reasons this Court has on two occasions refused to accept the argument that testimony compelled from corporate officers in their representative capacity should be construed as the testimony of the corporation itself; see R. v. N.M. Paterson and Sons Ltd., [1980] 2 S.C.R. 679, at p. 691, and R. v. Amway Corp., supra, at pp. 37‑39.

 

    I do not believe that putting those compelled to testify in a representative capacity on the same footing as those compelled to testify in their personal capacity means that corporations will be able to receive the indirect benefit of a right they are precluded from claiming directly.  Holding that persons who are compelled to speak on behalf of a corporation have a right to object to the introduction of that testimony at their own subsequent trial in no way suggests that the corporation would have the same right at its subsequent trial.  In fact, the exact opposite would seem to follow.  For if the person compelled to testify on behalf of a corporation is entitled to the protection of the right against self‑incrimination, it follows that the testimony is in fact his or her own testimony, at least in so far as entitlement to that particular right is concerned.  Its use cannot, therefore, be self‑incriminatory qua the corporation.  See R. v. N.M. Paterson and Sons Ltd., supra, at p. 691, and R. v. Amway Corp., supra, at pp. 37‑39.

 

The Use of Compelled Testimony

 

    I turn now to the central question relating to the application of the principles of fundamental justice to the power of the commissioners to compel testimony under s. 17 of the Act.  I reiterate that, in the present case, the subsequent use in criminal proceedings of compelled testimony, and not the giving of that testimony, is the matter to be addressed in considering the application of the principles of fundamental justice.  As is made clear in the reasons of my colleague Wilson J., their application to this case turns on the scope of the immunity against subsequent use of compelled testimony set out in s. 20(2) of the Combines Investigation Act.  That provision protects those who are compelled to testify under s. 17 against the subsequent use of their oral testimony.  It provides no protection against the subsequent use of evidence that is derived from that testimony.  In other words, the Act provides what the American courts call "use immunity", but it does not provide what those courts refer to as "derivative use immunity".

 

    On this ground, Wilson J. finds the s. 17 power to compel testimony contrary to the principles of fundamental justice.  For support she relies in part on Kastigar v. United States, 406 U.S. 441 (1972), where the Supreme Court of the United States reasoned that the Fifth Amendment, which provides a broad and general right against self‑incrimination, would be violated unless the power to compel testimony was accompanied by an immunity that was co‑extensive with the Fifth Amendment right it was intended to replace.  It then ruled that only "immunity from use and derivative use is coextensive with the scope of the privilege against self‑incrimination, and therefore is sufficient to compel testimony over a claim of the privilege" (p. 453).

 

    With respect, I entertain a number of difficulties with this argument.  In the first place, it assumes that the Act permits the admissibility of the evidence.  That is not what it does.  What it does rather (by s. 20(2)) is to make testimony given by a person compelled to testify under the Act inadmissible.  It otherwise makes no provision regarding admissibility or inadmissibility.  The admissibility of the evidence is governed by the common law.  When it is relevant, it is admissible unless it is made inadmissible by virtue of another common law rule, a statute or the Charter .  For example, the common law gives the judge a discretion to reject evidence if its prejudicial character substantially exceeds its probative value; see my reasons in R. v. Potvin, [1989] 1 S.C.R. 525.  Since that power is predicated on the requirement of a fair trial, this obviously has direct implications for s. 11( d )  of the Charter , which I would think has a larger role to play in weeding out prejudicial and unfair evidence -‑ a role that, were s. 11(d) not there, could be played by s. 7.  In truth, however, I see no real difference between the standards in these provisions.

 

    Simply because Parliament has provided for the inadmissibility of certain evidence does not mean that it thereby intended that other evidence should be admitted, even when either at common law or under the Charter , such evidence would be rejected on the ground that admitting it would be unfair.  It is quite reasonable for Parliament to have dealt with the obvious case of unfairness resulting from the use of self‑incriminating testimony, leaving more subtle situations to be dealt with in the application of general principles.  And, as I will demonstrate, derivative evidence raises very subtle questions requiring contextual balancing.  It should be remembered that the Charter  regime mandates a more flexible and contextual approach to the admissibility of evidence than the United States Constitution; thus there is no counterpart to s. 24(2)  of the Charter  in that country.  I do not think this Court should go out of its way to read an Act that deals only with the inadmissibility of certain evidence to prevent the violation of the Charter  as permitting the admissibility of other evidence that would violate it, especially when there is good reason to leave such evidence to be dealt with in accordance with the flexible principles provided either at common law or by the Charter .  Parenthetically, I should add, the foregoing approach to the interpretation of the Act is wholly consistent with that taken in the recent cases of R. v. Duarte, [1990] 1 S.C.R. 30, and R. v. Wiggins, [1990] 1 S.C.R. 62.

 

    The approach to ss. 17 and 20(2) of the Combines Investigation Act has obvious implications for the constitutional status of s. 5  of the Canada Evidence Act, R.S.C. 1970, c. E‑10.  Section 20(2) is, in fact, no more than a recapitulation of s. 5 in the specific context of anti‑combines legislation.  The adoption of an absolute rule that testimonial immunity must in all cases extend to derivative evidence would almost certainly entail striking down s. 5  of the Canada Evidence Act, as well as the virtually identical sections found in provincial legislation.  Given that s. 5 has been a part of our law since 1893, I would think this Court should be extremely cautious in bringing about this result.  While I realize that the longevity of a statute cannot alone render it consistent with the principles of fundamental justice, it is nevertheless a factor that must be weighed very heavily in any attempt to decide what is required by those principles in particular areas of the law.  This Court, we saw, has held that the principles of fundamental justice "are to be found in the basic tenets of our legal system" (see Re B.C. Motor Vehicle Act, supra, at p. 503), and while I of course acknowledge that "the basic tenets of our legal system" are not coextensive with past legislative decisions as to the proper balance between individual rights and collective law enforcement goals, it must surely be conceded that a statutory provision which is almost one hundred years old and which lies at the very heart of the procedures by which we establish guilt and innocence in criminal proceedings has long been regarded as consonant with "the basic tenets of our legal system".  Similar considerations, of course, apply if one considers the issue in terms of a "fair hearing" under s. 11( d )  of the Charter , rather than under s. 7.

 

    Before going on, I think it may be useful to pinpoint once again the precise nature of the remaining Charter  problems relating to oral evidence taken under s. 17 of the Act.  For reasons I have given, I do not think objection can properly be made to the taking of the oral evidence under that provision.  Moreover, since such evidence is relevant, no objection can be made to its use in prosecutions against the corporation or against individuals other than the witness, or to the use of relevant derivative evidence.  The witness's oral evidence cannot, of course, be used against him or her.  Section 20(2)  so provides and I have no doubt that this would, in any event, be the case either under s. 7  or s. 11( d )  of the Charter .  It is thus the fact that no provision is made against the subsequent use of derivative evidence against the witness which, arguably, renders s. 17  in conjunction with s. 20(2)  invalid as offending against the principles of fundamental justice.  As I hope to make clear, however, the issues relating to derivative evidence are complex and obscure and do not easily lend themselves to global solutions.  Accordingly, there may well be wisdom in Parliament's not dealing expressly with derivative evidence either in s. 20(2) of the Combines Investigation Act or in s. 5  of the Canada Evidence Act.

 

    I turn then to a closer examination of self‑incrimination through derivative evidence.

 

Derivative Evidence and Self‑Incrimination

 

    There are serious grounds on which objection can be raised to an absolute rule that testimonial immunity must always extend to evidence derived from compelled testimony.  While allowing the Crown to use such evidence in criminal proceedings may in a formal sense be equivalent to permitting direct reliance on the compelled testimony itself, there is an important difference between the type of prejudice that will be suffered in the two cases.  It is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self‑incriminatory evidence in his or her own trial.  The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence that could have been obtained only from the accused.

 

    By contrast, evidence derived from compelled testimony is, by definition, evidence that existed independently of the compelled testimony.  This follows logically from the fact that it was evidence which was found, identified or understood as a result of the "clues" provided by the compelled testimony.  Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as non‑existence.  The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been.

 

    For the moment, I leave aside cases in which this probability is so low as to make the exercise of the power to compel testimony the only way in which a particular piece of derivative evidence would, as a practical matter, have been found.  In such cases, it might well be said that the reliance of the Crown on derivative evidence would be virtually indistinguishable from its reliance on the actual compelled testimony.  In both, the accused will have been convicted or otherwise prejudiced by evidence that only he or she could have provided.  But in other cases, the difference between evidence which the accused has been forced to create (the compelled testimony), and the independently existing evidence he or she has been forced to assist in locating, identifying or explaining (evidence derived from compelled testimony), will be readily discernable.  I believe its significance will be equally apparent.

 

    The fact that derivative evidence exists independently of the compelled testimony means, as I have explained, that it could also have been discovered independently of any reliance on the compelled testimony.  It also means that its quality as evidence does not depend on its past connection with the compelled testimony.  Its relevance to the issues with which the subsequent trial is concerned, as well as the weight it is accorded by the trier of fact, are matters that can be determined independently of any consideration of its connection with the testimony of the accused.  If it were otherwise, it would not in fact be derivative evidence at all, but part of the actual testimony itself.  Taken together, these aspects of derivative evidence indicate that it is self‑sufficient, in the sense that its status and quality as evidence is not dependent on its relation to the testimony used to find it.  In this regard, the very phrase "derivative evidence" is somewhat misleading.

 

    Seen from this light, it becomes apparent that those parts of derivative evidence which are incriminatory are only self‑incriminatory by virtue of the circumstances of their discovery in a particular case.  They differ in this respect from incriminatory portions of the compelled testimony itself, which are by definition self‑incriminatory, since testimony is a form of evidence necessarily unique to the party who gives it.

 

    I would think that this, without more, raises doubts as to whether we should be as wary of prosecutorial use of derivative evidence as we undoubtedly must be of such use of pre‑trial testimonial evidence.  What prejudice can an accused be said to suffer from being forced to confront evidence "derived" from his or her compelled testimony, if that accused would have had to confront it even if the power to compel testimony had not been used against him or her?  I do not think it can be said that the use of such evidence would be equivalent to forcing the accused to speak against himself or herself; once the derivative evidence is found or identified, its relevance and probative weight speak for themselves.  The fact that such evidence was found through the evidence of the accused in no way strengthens the bearing that it, taken by itself, can have upon the questions before the trier of fact.  In this respect, if reference to its origins was not precluded by an immunity such as that presently found in s. 5  of the Canada Evidence Act, it would in most cases be precluded by simple irrelevance.

 

    My confidence in the above characterization of derivative evidence is strengthened by the decisions of this Court respecting s. 24(2)  of the Charter .  I realize, of course, that the question under s. 24(2) is whether evidence should be excluded because it was obtained through a breach of the Charter , whereas the question in the present appeal is whether the use of a particular type of evidence would constitute a breach of Charter  rights.  Nevertheless, I think an analogy to the s. 24(2) jurisprudence can validly be drawn.  We are not in this case concerned with the interpretation of one of the specific legal rights set out in ss. 8  to 14  of the Charter .  The power to compel testimony granted in s. 17 of the Combines Investigation Act can only be found invalid if we find that the subsequent use of evidence derived from compelled testimony is not "in accordance with the principles of fundamental justice".  Surely the views of this Court as to whether the admission of evidence obtained in breach of the Charter  would "bring the administration of justice into disrepute" are relevant to a determination of the scope of evidential immunity required by the "principles of fundamental justice".  Like my colleague L'Heureux‑Dubé J., I find it difficult to imagine how the use of evidence which does not bring the administration of justice into disrepute can at the same time be contrary to the principles of fundamental justice.  The consequence of the former finding is, in effect, to declare that the Charter  breach by which evidence was obtained was non‑prejudicial, and in a sense nominal.  To argue that the same reasoning cannot be used to determine whether the use of derivative evidence constitutes a breach of the rights guaranteed under s. 7 would be to take an unduly formalistic approach to the interpretation of the Charter .  As I mentioned earlier, the discussion might equally be framed in terms of the right to a fair trial under s. 11(d) with similar results, a matter to which I shall return.

 

    The leading case on s. 24(2) is R. v. Collins, [1987] 1 S.C.R. 265.  There, Lamer J., at p. 284, drew a distinction between real and self‑incriminating evidence, and stated that the admission of the former would rarely bring the administration of justice into disrepute.  This was because it could not be said to have been created by the Charter  violation by which it was obtained.  Its subsequent use would not, therefore, affect the fairness of the trial of the accused.  The situation was different in cases where, after the violation, "the accused is conscripted against himself through a confession or other evidence emanating from him".  In those cases:

 

The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self‑incrimination.

 

    I would first of all note that I do not believe that in drawing this distinction, Lamer J. intended to draw a hard and fast line between real evidence obtained in breach of the Charter  and all other types of evidence that could be so obtained.  He did not merely say that the admission of real evidence would generally not affect the fairness of the trial of the accused; he said, at p. 284, that it would not generally affect the fairness of the trial because it "existed irrespective of the violation of the Charter " (emphasis added).  Similarly, in reference to confessions "or other evidence emanating" from the accused, he noted that "it did not exist prior to the violation" (emphasis added).  I think this clearly indicates that what Lamer J. had in mind was the much broader distinction between evidence which the accused has been forced to create, and evidence which he or she has been forced to merely locate or identify.  In other words, he had in mind the kind of distinction which I have attempted to draw between compelled testimony and evidence derived from compelled testimony.  This raises a question of crucial importance in understanding the Collins line of cases and their relevance to a determination of the scope of testimonial immunity required by the principles of fundamental justice; why is the prior existence of evidence regarded as relevant to the fairness of the trial in which it is introduced?

 

    There can be only one answer to this question.  A breach of the Charter  that forces the eventual accused to create evidence necessarily has the effect of providing the Crown with evidence it would not otherwise have had.  It follows that the strength of its case against the accused is necessarily enhanced as a result of the breach.  This is the very kind of prejudice that the right against self‑incrimination, as well as rights such as that to counsel, are intended to prevent.  In contrast, where the effect of a breach of the Charter  is merely to locate or identify already existing evidence, the case of the ultimate strength of the Crown's case is not necessarily strengthened in this way.  The fact that the evidence already existed means that it could have been discovered anyway.  Where this is the case, the accused is not forced to confront any evidence at trial that he would not have been forced to confront if his Charter  rights had been respected.  In such circumstances, it would be the exclusion rather than the admission of evidence that would bring the administration of justice into disrepute.

 

    Such an understanding of the rationale for the presumption in favour of the admission of real evidence in s. 24(2) cases has recently been made explicit in this Court.  In R. v. Black, [1989] 2 S.C.R. 138, a case in which a person eventually charged with murder assisted the police in distinguishing the knife which was used to commit the murder from a number of identical kitchen knives, Wilson J. supported her reliance on R. v. Collins by saying, at p. 164:

 

... the knife itself is real evidence which existed whether or not the police breached the appellant's s. 10(b) rights and used her to assist in the preparation of the case against her.  It did not come into existence as a result of the participation of the accused although the police obtained it as a result of such participation.  I have little doubt that the police would have conducted a search of the appellant's apartment with or without her assistance and that such a search would have uncovered the knife.  [Emphasis added.]

 

At page 165, she added:

 

    Given Lamer J.'s comments [in Collins] and the fact that the knife would undoubtedly have been uncovered by the police in the absence of the Charter  breach and the conscription of the appellant against herself, I do not think that the administration of justice would have been brought into disrepute by the admission of the knife.  [Emphasis added.]

 

    I see no reason why a similar approach should not be taken in respect of testimonial immunity.  As I earlier noted, the fundamental difference between testimonial and derivative evidence is that the latter, because of its independent existence, could have been found independently of the compelled testimony.  Leaving aside the question of whether the mere possibility that derivative evidence could have been found without the compelled testimony is a sufficient basis on which to conclude that its use will not affect the fairness of the trial in which it is used (in R. v. Black, Wilson J. found that the knife "would undoubtedly have been uncovered"), I would stress that this is a characteristic of derivative evidence generally, regardless of whether or not it is real evidence.  While it is perhaps self‑evident that real evidence will always be evidence that exists independently of the testimony that reveals its location or relevance, it must be remembered that the same thing can be said of all derivative evidence.  It is evidence distinct from the compelled testimony which is found as a result of the investigation of "clue facts" found in that testimony; see Haywood Securities Inc. v. Inter‑Tech Resource Group Inc. (1985), 24 D.L.R. (4th) 724 (B.C.C.A.), at pp. 727‑44 (per Lambert J.A. (dissenting)).  Most significantly, the testimony of third parties obtained as a result of the pursuit of such clue facts is clearly evidence that exists regardless of whether or not the person who provided the clue facts was compelled to give testimony.  As much as the murder weapon or the stolen car, it is evidence that could have been found in the absence of any assistance, compelled or otherwise, from the person subsequently charged.  I do not see why this factor should be relevant to the admissibility of the murder weapon under s. 24(2), but irrelevant to the admissibility of the third party's testimony under the same section, or to the admissibility of either piece of evidence under ss. 7 or 11(d).

 

    The one qualification that must be made to the above has to do with the difference between independently existing evidence that could have been found without compelled testimony, and independently existing evidence that would have been found without compelled testimony.  As I have acknowledged at several points in these reasons, there will be situations where derivative evidence is so concealed or inaccessible as to be virtually undiscoverable without the assistance of the wrongdoer.  For practical purposes, the subsequent use of such evidence would be indistinguishable from the subsequent use of the pre‑trial compelled testimony.  In both cases, it can be said that the accused is being forced to answer a case that he or she was forced to make stronger than it would otherwise have been.  In the context of s. 24(2), this is no doubt why Wilson J. laid such stress in R. v. Black on her finding that the murder weapon "would undoubtedly have been uncovered by the police in the absence of the Charter  breach" (p. 165).  It probably also explains why Lamer J., speaking for a majority of the Court in R. v. Ross, [1989] 1 S.C.R. 3, was so emphatic in making it clear that the admissibility of evidence under s. 24(2) ultimately depended, not on its nature as real or testimonial evidence, but on whether or not it could only have been found with the compelled assistance of the accused.  At page 16, he states:

 

Any evidence obtained, after a violation of the Charter , by conscripting the accused against himself through a confession or other evidence emanating from him would tend to render the trial process unfair.  In Collins we used the expression "emanating from him" since we were concerned with a statement.  But we did not limit the kind of evidence susceptible of rendering the trial process unfair to this kind of evidence.  I am of the opinion that the use of any evidence that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial would tend to render the trial process unfair.  [Emphasis added.]

 

    The question therefore becomes:  what scope of testimonial immunity is required by the principles of fundamental justice given that it is undeniable that in some unquantifiable proportion of cases both the testimony compelled and the evidence derived from it will be evidence the Crown would not otherwise have been able to obtain?  I must say that it would seem overly broad to say that there must be an absolute prohibition against the use at trial of all evidence derived from testimony compelled before trial on the ground that the admission of such evidence can in some cases affect the fairness of the trial.  We must remember that in defining the scope of the immunity required by the Charter , we are called upon to balance the individual's right against self‑incrimination against the state's legitimate need for information about the commission of an offence.

 

    Even in cases in which the state's need for information could be satisfied without a power to compel testimony, the exercise of such a power can be an important investigative technique.  By compelling testimony from those it has reason to believe possess information about known or suspected wrongdoing, the state can focus its investigative efforts much more quickly and more precisely than may otherwise be possible.  The community as a whole benefits as a result.  Wrongdoers are identified and apprehended more swiftly, and the perceived effectiveness of law enforcement is thereby enhanced.  This in turn increases the law's effectiveness as a deterrent to other possible wrongdoers.  In addition, the ability of authorities to quickly focus their investigations means that the lives and activities of fewer people will be disrupted as a result of any particular investigation.  Finally, the limited resources that society has to spend on law enforcement activity in general will be utilized in a more cost‑effective manner.  This will mean the effective investigation of a greater proportion of offences which, again, can only enhance the law's potency as a deterrent to potential wrongdoers.  I again refer to the special need for techniques of this kind in this area of the law.

 

    All of these benefits of a power to compel testimony would either be lost or severely limited if the Constitution required that the legislative grant of any such power must be accompanied by a grant of full use and derivative use immunity.  This is confirmed by the experience of the United States.  Historically, the Fifth Amendment was interpreted as requiring full transaction immunity for those compelled to give testimony; see Counselman v. Hitchcock, 142 U.S. 547 (1892).  This meant immunity from prosecution for any offence related to matters in respect of which testimony had been compelled.  It also meant that in many contexts, the state could only obtain information about wrongdoing by depriving itself of the power to prosecute those most responsible for its commission.  Such an imbalance between the rights of the individual and the law enforcement interest of the state underlay the retreat to use and derivative use immunity in Kastigar v. United States, supra.

 

    But as some commentators have pointed out, the practical effect of conferring derivative use immunity is in many cases virtually indistinguishable from the conferral of immunity from prosecution; see M. Berger, Taking the Fifth:  The Supreme Court and the Privilege Against Self‑Incrimination (1980), at p. 72.  That is because it is in many cases extremely difficult for the prosecution to prove that the evidence it seeks to introduce against an accused who has been compelled to testify is not in fact derived from that testimony.  It must be remembered that it would not be enough for the Crown to prove simply that the evidence could have been obtained independently of their testimony; that would not preclude actual reliance on the leads found in the compelled testimony.  Instead, it must be proved that the evidence was in fact found independently of the compelled testimony.  In the wake of an even relatively complex investigation where many different and reinforcing leads and mere hunches have played a part in guiding the investigators, what could possibly constitute such proof?  The prosecution would in effect have to fall back on an attempt to furnish proof that the evidence in question could not have been derived from the compelled testimony.  But in any case where there was a need for even moderately extensive use of the power to compel testimony, there will be little evidence that can be so clearly segregated from the evidence given in testimony.

 

    In short, a general requirement of derivative use immunity would mean that in many cases the use of the power to compel testimony would furnish wrongdoers with the type of "immunity baths" that were characteristic of the transaction immunity formerly available in the United States; see Berger, op. cit., at pp. 68 and 70.  Law enforcement authorities would be faced with the choice of either securing information quickly at the risk of jeopardizing subsequent prosecutions, or conducting more protracted and widely cast investigations.  Either way, the advantages the community currently enjoys from the power to compel testimony would be severely restricted.  While I accept that this price must be paid where the use of evidence derived from compelled testimony would undermine the fairness of a person's trial, I cannot accept that it should also have to be paid where the use of the derivative evidence would not have that effect.  I refer again to the remarks in R. v. Lyons and R. v. Beare to the effect that what the Charter  guarantees the accused is a fair trial, not the most favourable procedure imaginable, and that fairness involves the weighing of the public interest in the equation.  I note that the absolutist position the courts in the United States have adopted in this area is undoubtedly rooted in the explicit and seemingly absolute right against self‑incrimination found in that country's Constitution.

 

A Flexible Approach

 

    In this country, where the question of immunity falls to be determined under the principles of fundamental justice, I think we can achieve a more flexible balance between the interests of the individual and that of the state.  In a case like this, where the statute does not provide for the evidence to be admitted, there can really be no breach of the Charter  until unfair evidence is admitted.  Until that happens, there is no violation of the principles of fundamental justice and no denial of a fair trial.  Since the proper admission or rejection of derivative evidence does not admit of a general rule, a flexible mechanism must be found to deal with the issue contextually.  That can only be done by the trial judge.

 

    Such an approach can be traced to the common law.  In R. v. Corbett, supra, dissenting on another point, I endeavoured to elaborate upon the broad lines of the flexible approach to ensuring a fair trial flowing from the fundamental postulates of the law of evidence which, at p. 714, I summarized as follows:  "All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy" (emphasis added); see generally at pp. 713‑15.  Lamer J., on this point speaking for a unanimous Court, had expressed a similar view in Morris v. The Queen, [1983] 2 S.C.R. 190, at p. 201.  Over time, of course, many of the decisions made pursuant to this principle have become fixed rules.

 

    In R. v. Corbett, supra, a majority of this Court held that this judicial discretion to exclude unduly prejudicial evidence could be applied in relation to evidence of convictions made admissible in evidence by s. 12  of the Canada Evidence Act; see in addition to my reasons (pp. 729‑40), those of Dickson C.J. (Lamer J. concurring), at p. 697, and Beetz J., at p. 699.  As I indicated in R. v. Potvin, supra, Dickson C.J. concurring, this discretion to exclude evidence where its prejudicial effect substantially outweighs its probative value is ultimately grounded in the trial judge's duty to ensure a fair trial.  As I there explained, that is the view now accepted by the House of Lords; see R. v. Sang, [1980] A.C. 402.  The requirement of a fair trial has in other areas moved the courts to reject evidence to ensure an accused a fair trial, though it would otherwise have been admissible; see Lucier v. The Queen, [1982] 1 S.C.R. 28.

 

    The fact that this discretion to exclude evidence is grounded in the right to a fair trial has obvious constitutional implications.  The right of an accused to a fair hearing is constitutionalized by s. 11(d), a right that would in any event be protected under s. 7 as an aspect of the principles of fundamental justice (see R. v. Corbett, per Beetz J., at p. 699, and my reasons, at pp. 744‑46; Dickson C.J. does not really comment on this issue).  But this does not, any more than does the common law, prevent the admission in evidence of matters that are damaging to the accused as opposed to unfair.  What it may do is to encourage the flexibility which some judges were (wrongly in my view) reluctant to exercise at common law; see in this context R. J. Delisle, "Evidence -‑ Judicial Discretion and Rules of Evidence -‑ Canada Evidence Act, s. 12 :  Corbett v. The Queen" (1988), 67 Can. Bar Rev. 706.

 

    I see no reason why an approach like that in the now constitutionalized rule adopted in the case of prejudicial evidence should not be extended to derivative evidence which, like other prejudicial evidence within the rule, can only be dealt with having due regard to the need to balance the right of the accused and that of the public in a specific context.  In my view, derivative evidence that could not have been found or appreciated except as a result of the compelled testimony under the Act should in the exercise of the trial judge's discretion be excluded since its admission would violate the principles of fundamental justice.  As will be evident from what I have stated earlier, I do not think such exclusion should take place if the evidence would otherwise have been found and its relevance understood.  There is nothing unfair in admitting relevant evidence of this kind, a proposition consistent with the cases under s. 24(2)  of the Charter .  The touchstone for the exercise of the discretion is the fairness of the trial process.

 

    In R. v. Corbett, too, I dealt with the manner in which the evidence of convictions should be dealt with in relation to a fair trial, in a passage that is clearly relevant to derivative evidence as well.  I stated, at p. 745:

 

    If the appellant's broader argument is based on the notion that, to ensure a fair trial and impartial jurors, evidence of the previous convictions of an accused should always, as a matter of law, be excluded because of their prejudicial effect and in spite of their probative value, I cannot agree.  It is true that s. 11  of the Charter  constitutionalizes the right of an accused and not that of the state to a fair trial before an impartial tribunal.  But "fairness" implies, and in my view demands, consideration also of the interests of the state as representing the public.  Likewise the principles of fundamental justice operate to protect the integrity of the system itself, recognizing the legitimate interests not only of the accused but also of the accuser.  To accept the appellant's argument would be to ignore those considerations.

 

    In my view, the recognition of a discretion to exclude evidence when its probative value is overshadowed by prejudicial effect ensures that the legitimate interests of both the public and the accused are taken into account.  Justice and fairness demand no less and expect no more.

 

I should add that the Chief Justice took a similar approach, though he was more strongly disposed towards the admission of relevant evidence in that specific context.  The precise balance that should apply is one, of course, that will require development over time.

 

    It is neither necessary nor advisable in this appeal to attempt a more extensive elaboration of the more flexible approach to derivative evidence I have suggested.  It suffices to say that however prejudicial particular instances of derivative evidence may be in other law enforcement contexts, the instances where such evidence could be said to be prejudicial to those who are compelled to testify under s. 17 of the Combines Investigation Act, and are later charged with an offence under the Act, are likely to be somewhat rare.  It must be remembered that the Director has other means of investigation and research available to him.  The section itself permits the Director and the Commission to order the production of business documents which may reveal much of the information obtained through the testimony.  Again, the Director and the Commission have the power to obtain oral evidence from others.  It would ill comport with the principles of fundamental justice if the courts were required to reject evidence simply because one witness gave the evidence before it was given by another, or it was otherwise discovered by an investigation that would undoubtedly have been carried out in any event -‑ any more than its admission would be regarded as bringing the administration of justice into disrepute under s. 24(2)  of the Charter .  The one thing the power to compel testimony will never allow anti‑combines investigators to use as evidence, however, is information they could not otherwise have uncovered.

 

    It may, of course, be argued that the matter should be left for Parliament to deal with.  I do not agree.  I suspect that the best course Parliament could adopt in achieving a proper balance between the rights of the accused and the public in this area would be to accord the trial judge a discretion of the kind described.  I see no reason why a court charged with the duty of ensuring a fair trial consistently with the principles of fundamental justice should have need to await the enactment of a statute to discharge this responsibility, especially when the bulk of the law of evidence was judicially created in the first place.  I note that the Ontario Court of Appeal has held that s. 7  of the Charter  gives the court a residual discretion to relax the rules of evidence in certain limited circumstances to ensure that an accused is given a fair trial; see R. v. Williams (1985), 44 C.R. (3d) 351; R. v. Rowbotham (1988), 63 C.R. (3d) 113.  Had the judges in the past considered that the admission of derivative evidence would in certain circumstances "tend to render the trial process unfair" (see R. v. Ross, supra, at p. 16), they would have rejected the evidence as prejudicial or unfair; that is how the law of evidence developed.  It would seem odd if judges, who are now the guardians of the Constitution, were to flinch at excluding such evidence in those situations where its admission would make the trial process unfair.  The law of evidence, like other laws, must be adapted where need be to conform to constitutional imperatives.  The alternative of declaring void a provision that otherwise passes muster under the principles of fundamental justice seems excessive.  Especially is this so when its counterparts under s. 5  of the Canada Evidence Act and equivalent provincial provisions have formed part of the very fabric of the general law of evidence for nearly one hundred years.

 

Conclusion

 

    I conclude, then, that the use of derivative evidence derived from the use of the s. 17 power in subsequent trials for offences under the Act does not automatically affect the fairness of those trials.  It follows that complete immunity against such use is not required by the principles of fundamental justice.  The immunity against use of actual testimony provided by s. 20(2) of the Act together with the judge's power to exclude derivative evidence where appropriate is all that is necessary to satisfy the requirements of the Charter .

 

Disposition

 

    I would dismiss the appeal with costs throughout.  I would answer the constitutional question in the negative.

 

//L'Heureux-Dubé J.//

 

    The following are the reasons delivered by

 

    L'Heureux‑Dubé J. -- The appellants launched a constitutional attack upon s. 17 of the Combines Investigation Act, R.S.C. 1970, c. C‑23 (the "Act"), in the early stages of an investigation into the activities of appellant Thomson Newspapers Ltd.  They contend that a compulsion to testify and to produce corporate documents violates ss. 7  and 8  of the Canadian Charter of Rights and Freedoms .  I state at the outset that, in my view, this contention oversteps the legitimate boundaries of constitutional protection envisaged under these provisions.

 

    Before examining the arguments relative to the constitutionality of s. 17, I find it necessary to briefly review the nature and purpose of the legislation under attack.

 

I.  The Combines Investigation Act

 

    Legislation relative to the control of anti‑competitive conduct has had a long and eventful history in Canada.  This history is recounted in great detail by Dickson J. (now Chief Justice) in Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206, at pp. 250‑55.  In that case, Dickson J. agreed with the views which had been expressed by Martin J.A., speaking for the Ontario Court of Appeal, in R. v. Hoffmann‑La Roche Ltd. (Nos. 1 and 2) (1981), 33 O.R. (2d) 694 namely, that when considered as a whole, the Act could properly be supported under the federal trade and commerce power (pp. 735‑36).  In the recent decision of General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, this view was unanimously upheld by this Court and there is no question today that the Act constitutes a valid exercise of federal trade and commerce power.

 

    While anti‑combines legislation may have given rise to different constitutional characterizations throughout the years, this Court has always found the legislation's underlying rationale to be the eradication of practices that inhibit free competition.  As early as 1912, in Weidman v. Shragge (1912), 46 S.C.R. 1, commenting on s. 498 of the then Criminal Code , Idington J. emphatically stated:  "Destroy competition and you remove the force by which humanity has reached so far" (p. 28).  In Stinson‑Reeb Builders Supply Co. v. The King, [1929] S.C.R. 276, Mignault J. found that the same provision was designed to prevent "[i]njury to the public by the hindering or suppressing of free competition" (p. 280).  Duff C.J. referred to s. 498 in Container Materials, Ltd. v. The King, [1942] S.C.R. 147, and stated (at p. 152):

 

    The enactment before us, I have no doubt, was passed for the protection of the specific public interest in free competition.

 

These views were reiterated by Taschereau J. in Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403, who went so far as to state that the "public is entitled to the benefit of free competition" (emphasis in original, p. 407).  The wording of s. 498  of the Criminal Code , considered in the above cases, was "in all essentials the same" as that of s. 32(1) of the Act:  see Aetna Insurance Co. v. The Queen, [1978] 1 S.C.R. 731, at pp. 744‑46.  Recently, in General Motors, supra, the Chief Justice referred to the purpose of the Act in the following terms (at p. 676):

 

    From this overview of the Combines Investigation Act I have no difficulty in concluding that the Act as a whole embodies a complex scheme of economic regulation.  The purpose of the Act is to eliminate activities that reduce competition in the market‑place.  The entire Act is geared to achieving this objective.  The Act identifies and defines anti‑competitive conduct.  It establishes an investigatory mechanism for revealing prohibited activities and provides an extensive range of criminal and administrative redress against companies engaging in behaviour that tends to reduce competition.  In my view, these three components, elucidation of prohibited conduct, creation of an investigatory procedure, and the establishment of a remedial mechanism, constitute a well‑integrated scheme of regulation designed to discourage forms of commercial behaviour viewed as detrimental to Canada and the Canadian economy.

 

The Chief Justice also remarked (at p. 682):

 

    In sum, the Combines Investigation Act is a complex scheme of competition regulation aimed at improving the economic welfare of the nation as a whole.  It operates under a regulatory agency.  It is designed to control an aspect of the economy that must be regulated nationally if it is to be successfully regulated at all.  As Linden J. of the Ontario High Court of Justice said, when discussing the Act in R. v. Hoffmann‑La Roche, supra, at p. 191:

 

It is part of a legislative scheme aimed at deterring a wide range of unfair competitive practices that affect trade and commerce generally across Canada, and is not limited to a single industry, commodity or area.  The conduct being prohibited is generally of national and of international scope.  The presence or absence of healthy competition may affect the welfare of the economy of the entire nation.  It is, therefore, within the sphere of the federal Parliament to seek to regulate such competition in the interest of all Canadians.

 

    I am therefore of the view that the Combines Investigation Act as a whole is intra vires Parliament as legislation in relation to general trade and commerce . . .

 

    Section 17 forms part of the administrative machinery which was established in order to promote the Act's purpose.  The Restrictive Trade Practices Commission's (the "Commission") investigative and reporting duties have been fully considered in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, at pp. 193‑205, and there is no need to add anything to what was said there in this respect.

 

    I now propose to consider the main question:  does s. 17 of the Act infringe ss. 7  or 8  of the Charter ?

 

II.  Constitutionality of Section 17 of the Act

 

    For the sake of convenience, I reproduce hereunder the text of s. 17 of the Act:

 

    17. (1)  On ex parte application to the Director, or on his own motion, a member of the Commission may order that any person resident or present in Canada be examined upon oath before, or make production of books, papers, records or other documents to such member or before or to any other person named for the purpose by the order of such member and may make such orders as seem to him to be proper for securing the attendance of such witness and his examination, and the production by him of books, papers, records or other documents and may otherwise exercise, for the enforcement of such orders or punishment for disobedience thereof, all powers that are exercised by any superior court in Canada for the enforcement of subpoenas to witnesses or punishment of disobedience thereof.

 

    (2)  Any person summoned under subsection (1) is competent and may be compelled to give evidence as a witness.

 

    (3)  A member of the Commission shall not exercise power to penalize any person pursuant to this Act, whether for contempt or otherwise, unless, on the application of the member, a judge of the Federal Court of Canada or of a superior or county court has certified, as such judge may, that the power may be exercised in the matter disclosed in the application, and the member has given to such person twenty‑four hours notice of the hearing of the application or such shorter notice as the judge deems reasonable.

 

    (4)  Any books, papers, records or other documents produced voluntarily or in pursuance of an order under subsection (1) shall within thirty days thereafter be delivered to the Director, who is thereafter responsible for their custody, and within sixty days after the receipt of such books, papers, records or other documents by him the Director shall deliver the original or a copy thereof to the person from whom such books, papers, records or other documents were received.

 

    (5)  A justice before whom any thing seized pursuant to a search warrant issued with reference to an offence against this Act is brought may, on the application of the Director, order that such thing be delivered to the Director, and the Director shall deal with any thing so delivered to him as if delivery of it had been made to him pursuant to subsection (4).

 

    (6)  Every person summoned to attend pursuant to this section is entitled to the like fees and allowances for so doing as if summoned to attend before a superior court of the province in which he is summoned to attend.

 

    (7)  The Minister may issue commissions to take evidence in another country, and may make all proper orders for the purpose and for the return and use of evidence so obtained.

 

    (8)  Orders to witnesses issued pursuant to this section shall be signed by a member of the Commission.

 

    I pause to note at this juncture that s. 17 comes into play at the investigative stage of the process.  At this stage, the Commission is embarked on a fact‑finding inquiry.  In the most usual case, a complaint alleging conduct contrary to the Act has been filed with the Commission and the purpose of the inquiry is to consider whether "evidence exists" to substantiate the allegation.  To this end, s. 17(2) empowers the Commission to summon a person "to give evidence as a witness" (emphasis added).  No individual is charged and the inquiry is not a trial.  The provisions allowing the Commission to communicate its findings to the Minister and the eventual possibility of sanctions, administrative or penal, only come into play at a later stage.  In commissions of inquiry such as a coroner's inquest (Faber v. The Queen, [1976] 2 S.C.R. 9), a commission of inquiry into organized crime (Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152) and a commission of inquiry into criminal acts allegedly committed by the R.C.M.P. (Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] l S.C.R. 218), individuals compelled to testify were treated as "witnesses" by this Court, even though, as a result of their testimony, the "witnesses" might possibly have been exposed to subsequent criminal charges.  In my opinion, the status of the individuals subject to an order under s. 17 of the Act is similar to the status of a witness appearing before a commission of inquiry.  There is no "accused" nor any "suspect".  In ordinary parlance, whether someone is a "suspect" refers to the existence of grounds to believe that the individual has engaged in forbidden activities.  In the context of an order under s. 17, there are no such grounds, but mere allegations.  The possibility of subsequent proceedings does not transform these allegations into formal accusations.  Accordingly, whether the allegations relate to the witness or not, the result is the same: an individual subject to an order under s. 17 is more properly characterized as a witness.

 

    Against this background, I will now turn to the constitutional validity of s. 17.  That provision, it will be noted, contains two aspects which are at the heart of the present appeal.  It requires the individual named in the order to "be examined upon oath" as well as to "make production of books, papers, records or other documents".  It will accordingly be useful to examine the constitutionality of each of these aspects separately.

 

Does the Requirement to Testify Violate Section 7 or Section 8 of the Charter ?

 

    Though both ss. 7  and 8  of the Charter  are invoked to attack the constitutionality of s. 17 of the Act, s. 8 does not in my view come into play at this stage.  This provision states:

 

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

 

To hold that an order to testify constitutes a "seizure", presumably a "seizure" of one's thoughts, would be to stretch that word beyond any meaning.  I agree with F. Chevrette, "Protection Upon Arrest or Detention and Against Retroactive Penal Law", in Beaudoin and Ratushny, eds., The Canadian Charter of Rights and Freedoms  (2nd ed. 1989), 387, when he states, at p. 390:

 

One might possibly consider a physical specimen a "thing", but admissions, confessions or ordinary conversations are clearly not "things". . . .  At first glance, then, the language of section 8 appears to suggest that the guarantee it contains applies only to the procurement of "tangible things".

 

    In R. v. Stewart, [1988] 1 S.C.R. 963, this Court decided that confidential information could not be the object of theft under the Criminal Code .  Although certain issues of policy specific to the Criminal Code  underlie the conclusion reached in that case, Lamer J. added in obiter that information per se could not be the object of a "taking" (at p. 979):

 

. . . property must be capable of being taken or converted in a manner that results in the deprivation of the victim.  Tangible things present no difficulty in this regard, as it is easy to conceive how they can be both taken and converted.  On the other hand, pure intangibles, as they have no physical existence, can obviously only be converted, not taken.  The "taking" of an intangible could only occur where such intangible is embodied in a tangible object, for example a cheque, a share certificate or a list containing information.  However, that would not result in the taking of the intangible per se, but rather of the physical object evidencing it.  [Emphasis added.]

 

These considerations apply to all intangibles, including oral evidence.  Wilson J. finds that a "seizure" under s. 8 means "the taking hold by a public authority of a thing belonging to a person against that person's will" (p. 000).  Even on this basis, in my view, testimonial compulsion does not involve the "taking of a thing" for the purpose of s. 8.

 

    Turning now to s. 7  of the Charter , it provides:

 

    7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

    As far as s. 7 is concerned, I agree with my colleague Wilson J. that it is necessary to ascertain the values which that provision was designed to protect and that the purposive approach best achieves this end.  I also agree that this fundamental requirement of Charter  methodology should not be circumvented by the mechanical application of one of the traditional rules of statutory interpretation.  However, once the values have been identified, these rules might still be available in later stages of the analysis.  For example, in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, this Court relied in part on the rule inclusio unius est exclusio alterius and in part on the literal meaning rule in interpreting the word "person" in s. 7 (pp. 1003‑4).  In this sense, I do not think that the rules of interpretation which have guided the courts to this day have been set aside and can no longer play any role in interpreting the Charter .  Subject to these remarks, I am prepared to accept Wilson J.'s conclusion that the specific enumerations in ss. 11(c) and 13 do not prevent residual content from being given to s. 7.

 

    At the outset, it must be stressed here that all of the appellants do not stand in an identical position with respect to the Charter .  One major difference stems from the fact that the appellant Thomson Newspapers Ltd. is a corporation, while the other appellants are its executive vice‑president, treasurer and controller.  Another important difference comes from the purpose of the inquiry, which is to investigate into the activities of the appellant corporation.  The activities of the individual appellants are beyond the scope of the inquiry in the present instance.  As clearly stated in the orders issued by the Director:

 

    Pursuant to section 8 of the Combines Investigation Act, the Director of Investigation and Research is continuing an inquiry relating to section 34(1)(c) of the said Act.  The inquiry is concerned with determining whether evidence exists that Thomson Newspapers Limited and its subsidiary companies have committed an offence, at any time between January 1, 1976 and the present, contrary to section 34(1)(c) of the Combines Investigation Act in that they have engaged in a policy of selling advertising space in their special promotion supplement (SPS), extended coverage vehicle (ECV), or total market coverage (TMC) publications at prices unreasonably low, having the effect or tendency of substantially lessening competition or eliminating a competitor, or designed to have such effect.  [Emphasis added.]

 

When the Commission investigates into the activities of a corporation (and it appears that this will generally be the case), it will always be necessary for the Commission to name an individual in the Order to Appear.  Indeed, since the corporation is an artificial entity, it cannot itself give oral evidence, nor can it physically produce documentary evidence.  This creates somewhat of an ambiguity when the individual in question is an employee or officer of the corporation: is the individual simultaneously acting as a representative of the corporation as well as in his or her personal capacity?  Accordingly, it will be necessary to consider each of these alternatives in discussing the constitutionality of s. 17 of the Act.

 

    With respect to corporations, this Court indicated that, even where they were assumed to be "persons charged with an offence", which is not the case under s. 17, corporations are not, by their very nature, capable of suffering the type of indignities prohibited by the guarantee against self‑incrimination embodied in s. 11( c )  of the Charter  (R. v. Amway Corp., [1989] 1 S.C.R. 21, at pp. 40‑41).  To the extent that, though not "person[s] charged with an offence", corporations seek to find residual protection under s. 7, they would just as well be incapable of suffering these underlying indignities.  This could suffice to dispose of this aspect of the question at hand but, in my view, there is a more compelling reason.  This Court decided in Irwin Toy, supra, that corporations cannot claim the protection of s. 7 because they are, on principle, excluded from the ambit of that constitutional guarantee.  The Court stated (at p. 1004):

 

    That is, read as a whole, it appears to us that this section [s. 7] was intended to confer protection on a singularly human level.  A plain, common sense reading of the phrase "Everyone has the right to life, liberty and security of the person" serves to underline the human element involved;  only human beings can enjoy these rights.  "Everyone" then, must be read in light of the rest of the section and defined to exclude corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and include only human beings.

 

Thus, to the extent that the individual appellants act as representatives of the corporation, s. 7 is no more applicable.  Indeed, to allow the individuals acting in such a representative capacity to invoke Charter  protection under s. 7 would be to grant the corporation rights which it cannot enjoy.  In my opinion, the appellant corporation cannot be allowed to circumvent indirectly what Irwin Toy, supra, prevents it from doing directly.

 

    Turning now to witnesses qua individuals rather than qua representatives of the corporation, I am prepared to accept that, as found by Wilson J., an order given under s. 17 of the Act may be construed as constituting a deprivation of liberty such as to bring the order under the scrutiny of s. 7.  In R. v. Beare, [1988] 2 S.C.R. 387, at p. 402, the Court dealt with the validity of the Identification of Criminals Act which compels attendance of certain persons to a police station for the purpose of taking fingerprints.  For a unanimous Court, La Forest J. noted that such compulsion sufficed to bring the Identification of Criminals Act within the reach of s. 7.  The Act's compulsion to appear at a specific time and place to testify subject to legal consequences for failure to comply constitutes, one could think, just as much of a deprivation of "life, liberty and security of the person".  The whole question then becomes whether this deprivation is effected in accordance with "fundamental justice", as prescribed by s. 7.

 

    In this respect, it is important to recall the wording of s. 20(2) of the Act since this provision affords witnesses testifying under s. 17 an immunity against the subsequent use of their testimony:

 

    20. . . .

 

    (2)  No person shall be excused from attending and giving evidence and producing books, papers, records or other documents, in obedience to the order of a member of the Commission, on the ground that the oral evidence or documents required of him may tend to criminate him or subject him to any proceeding or penalty, but no oral evidence so required shall be used or receivable against such person in any criminal proceedings thereafter instituted against him, other than a prosecution under s. 121  of the Criminal Code  for perjury in giving such evidence or a prosecution under s. 124  of the Criminal Code  in respect of such evidence.

 

Commenting on s. 20(2) in Irvine, supra, this Court remarked that this provision is "to the same purpose as s. 5 of the Canada Evidence Act, R.S.C. 1970, c. E‑10".  Delivering the reasons of the Court, Estey J. added (at p. 201):

 

This section goes a long way in protecting an individual should criminal proceedings subsequently be commenced.

 

    Wilson J. finds that the protection offered by s. 20(2), the so‑called "use immunity", is insufficient because, according to her, s. 7 requires "derivative use immunity" as well.  I take the expression "derivative evidence" used by my colleague to include all facts, events or objects whose existence is discovered as a result of a statement made to the authorities.  Sopinka J., for his part, holds that s. 17, even with the protection of s. 20(2), infringes a so‑called "right to remain silent", which he finds is secured by s. 7.  I must differ from both these propositions.  With respect to the first, I am of the view that "fundamental justice" under s. 7 does not require a constitutional immunity over derivative evidence.  With respect to the second, I am of the view that s. 7 does not afford witnesses any constitutional "right to remain silent".

 

    This Court has indicated that, when the constitutionality of a law enforcement measure is concerned, the "principles of fundamental justice" in s. 7 must be given a realistic interpretation which takes into account "the applicable principles and policies that have animated legislative and judicial practice in the field" (Beare, supra, at pp. 402‑3).  With this framework in mind, I propose to examine the propositions put forward by my colleagues, starting with the question of compellability and then turning to that of derivative use immunity.

 

    1.  Does Compellability Infringe Upon "Fundamental Justice"?

 

    Historically, under the common law, an accused was never compellable at his trial, although the rule evolved from the prohibition to testify to the right to testify and finally the right not to testify (see Marcoux v. The Queen, [1976] l S.C.R. 763).

 

    Witnesses, on the other hand were always compellable.  There again, the common law rule evolved with the times.  Prior to 1893, the general rule is summarized in R. v. Coote (1873), L.R. 4 P.C. 599, at p. 607:

 

    From these cases, to which others might be added, it results, in their Lordships' opinion, that the depositions on Oath of a Witness legally taken are evidence against him, should he be subsequently tried on a criminal charge, except so much of them as consist of answers to questions to which he has objected as tending to criminate him, but which he has been improperly compelled to answer.  The exception depends upon the principle "nemo tenetur seipsum accusare", but does not apply to answers given without objection, which are to be deemed voluntary.

 

In Coote, incriminating answers given to a Fire Commissioner were held to be admissible in a subsequent trial on a charge of arson.  It was not unusual for answers given unawares to be later used against the witness:  see R. v. Sloggett (1856), Dears. 656, 169 E.R. 885, and R. v. Scott (1856), Dears. & Bell 47, 169 E.R. 909, for cases involving answers in bankruptcy proceedings. 

 

    In 1893, Parliament enacted The Canada Evidence Act, 1893, S.C. 1893, c. 31, s. 5 of which stated:

 

    5.  No person shall be excused from answering any question upon the ground that the answer to such question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any other person: Provided, however, that no evidence so given shall be used or receivable in evidence against such person in any criminal proceeding thereafter instituted against him other than a prosecution for perjury in giving such evidence.

 

This legislation abrogated the so‑called common law "right to remain silent" of witnesses in face of incriminating statements, providing instead witnesses with  protection against the use of such statements in subsequent proceedings.  Later amendments (S.C. 1898, c. 53, and S.C. 1901, c. 36) did not alter the principle.  In Tass v. The King, [1947] S.C.R. 103, at p. 105, Kerwin J. stated that "the matter seems quite clear that if the person testifying does not claim the exemption, the evidence so given may be later used against him, and this notwithstanding the fact that he may not [have] known of his rights".

 

    The general freedom to do as one pleases, which seems to be the rationale underlying the rule as put by Lamer J. in Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 683, and which operates at the investigation stage is not absolute.  It subsides where, as here, there is a legal duty to appear as a witness.  It is also subject to the basic premises of our law enforcement system, and in particular, to the necessary cooperation of citizens in eradicating crime and other illegal activities.  This is sometimes expressed as a "social" or "moral" duty to cooperate with law enforcement agents:  Rice v. Connolly, [1966] 2 Q.B. 414, at p. 419.  In Dedman v. The Queen, [1985] 2 S.C.R. 2, at p. 19, Dickson C.J. in his dissenting reasons expressed this "moral" or "social" duty in the following terms:

 

Society as a whole bears responsibility for the maintenance of law and order; co‑operation between the public and the police is essential to the effective fulfilment of the already difficult tasks performed by the police.

 

    We are here, as I noted earlier, dealing with individuals called as witnesses in an investigation of practices under the Act where there is no accused, no suspect and no one charged with an offence, just as are witnesses before a commission of inquiry.

 

    The jurisprudence regarding commissions of inquiry illustrates the limited nature of the rights of witnesses in proceedings to which the Canada Evidence Act applies.  In Faber, Di Iorio and Keable, supra, there was found to be no fundamental "right to silence" in favour of witnesses appearing before commissions of inquiry and such witnesses were required to answer all questions, even those involving incriminating answers, subject to the protection afforded by the Canada Evidence Act.  The "right to remain silent" enjoyed by an accused, namely, the right to refuse to testify, was repeatedly held not to inure to the benefit of witnesses, or other persons against whom no charge had been laid.  In Di Iorio, Dickson J. stated (at pp. 216‑17):

 

Although one might argue that the protection against self‑incrimination extended to those who might be charged with a crime, this contention was rejected by the majority of the British Columbia Court of Appeal in Re Wilson Inquest (1968), 66 W.W.R. 522, and by a majority of this Court in Faber, supra.

 

He added that a person appearing before a provincial inquiry and testifying under oath was a "witness" who could claim the protection of s. 5(2)  of the Canada Evidence Act (pp. 220‑21). 

 

    The role of the Commission under s. 17 of the Act is akin to that of commissions of inquiry considered in the above cases.  The Commission has many functions other than to investigate into proscribed activity.  It may consider the appropriateness of civil and administrative remedies, such as ordering that certain duties be removed or reduced, or that suppliers accept certain persons as customers (see Irvine, supra, at p. 205).  The Commission investigates and reports its findings to the Minister; it makes no determination of guilt.  Just as was the case in Faber, Di Iorio and Keable, there is merely a possibility that the witnesses might later be prosecuted.  But this possibility, in my view, does not change the status of witnesses appearing before the Commission.

 

    Recently, this Court held that an officer of a corporation was a compellable witness at the criminal trial of his corporation:  R. v. N.M. Paterson and Sons Ltd., [1980] 2 S.C.R. 679.  There is no reason of principle to distinguish the case of a corporate officer from the general case of a witness.  The fact that, as a witness, the officer had no "right to remain silent" at the trial stage indicates that a fortiori the result could not be different when a witness is called to testify at the investigative stage.

 

    I would add that provisions empowering federal regulators to compel individuals to give evidence have been part of anti‑combines legislation since 1910 (The Combines Investigation Act, S.C. 1910, c. 9, s. 32).  A considerable number of provincial and federal regulatory statutes contain similar provisions.  Compelling the attendance of witnesses is an established investigatory tool in this age of governmental regulation of the economy.

 

    While, as Wilson J. notes, the longevity of a statute is not a determining factor when identifying the principles of fundamental justice, pre‑Charter  law is relevant to the extent that it sheds light on the "principles . . . [which] have animated legislative and judicial practice in the field" (Beare, supra, at pp. 402‑3), here, the field of investigative practices.  Such long‑standing practices show that our system of justice never considered that fundamental justice required that witnesses in investigatory proceedings enjoy a "right to remain silent" to the extent that they may simply refuse to be compelled to testify and answer questions, even questions eliciting incriminating answers.  Compellability of witnesses was not felt to be inimical to the basic tenets of our judicial system.

 

    The Charter, in my view, has not altered the status of witnesses called to testify at the investigative stage although it has constitutionalized the protection previously afforded by s. 5  of the Canada Evidence Act to witnesses in such circumstances.  Section 13  of the Charter  reads:

 

    13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

 

    As can readily be seen, s. 13  of the Charter  is itself premised on the compellability of witnesses since it can easily be assumed that a person giving incriminating evidence will do so under compulsion, even if the evidence can also be given voluntarily.  This provision would have little raison d'être if the Charter  at the outset rendered unconstitutional statutory provisions compelling witnesses to testify and this is a further indication that the compellability of witnesses per se is quite consonant with "fundamental justice" under s. 7  of the Charter .

 

    Section 13  of the Charter  goes further than s. 5  of the Canada Evidence Act and eliminates the requirement of an express objection by the witness in order for the protection to be available.  In Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 360, this Court held (McIntyre J. dissenting):

 

    Section 13, unlike s. 5(2)  of the Canada Evidence Act, does not require any objection on the part of the person giving the testimony. . .

 

Such automatic protection goes a long way towards ensuring fundamental justice for the witness. 

 

    I am not convinced by the remarks of Wilson J. to the extent that she implies the protection of witnesses under pre‑1893 common law was greater than it subsequently became under the Canada Evidence Act.  The common law rule allowed the use of the witness's testimony where the witness had failed to expressly object to the question and had unawares given an incriminating answer.  I do not believe that such a rule should be considered consistent with "fundamental justice" for the purpose of s. 7.

 

    Moreover, the Charter  has not rendered obsolete society's interest in the enforcement of its laws, and the dictum of Dickson C.J. in Dedman, supra, remains appropriate in the present context as well.  This is especially true of s. 7, where the collective interest in law enforcement finds expression in the principles of fundamental justice, and must be balanced against the deprivation of individual rights to life, liberty and security of the person, as these rights have come to be recognized in our judicial system.  Effective enforcement of anti‑combines legislation would be virtually stultified if those who can assist in the advancement of investigation into proscribed activity could hide beneath a constitutional blanket of silence.

 

    Given the long standing and deeply entrenched rule regarding the compellability of witnesses in our legal tradition, the protection afforded to such witnesses by the Canada Evidence Act now constitutionalized in s. 13  of the Charter , society's responsibility for the enforcement of its laws as well as the consistency of the jurisprudence relating to commissions of inquiry at the investigative stage, it would take clear wording indeed in the Charter  to conclude that witnesses are no longer compellable to testify in an inquiry of the kind that we are dealing with here.  Section 13  of the Charter  is not so worded.  Not only does s. 13 contain no clear statement to that effect but such a result cannot even be implied from its wording.  Section 7, as all the other sections of the Charter , cannot be interpreted in a vacuum but rather must be read in the light of all the other provisions as well as of against the historical background of our legal tradition.  In fact, ss. 11  and 13  of the Charter  in particular, which can be seen as illustrations of s. 7, are predicated on the contrary assumption.  This is why I cannot agree with my colleague Sopinka J. when he writes that s. 7  of the Charter  affords witnesses, be it in their personal capacity or as representatives of a corporation, a constitutional "right to remain silent" where there is an express statutory duty to testify such as the one enacted in s. 17 of the Act here in question.  I prefer to look at s. 7  of the Charter  as does my colleague Wilson J. in the light of the residual protection, if any, that s. 7 may afford such compellable witnesses, beyond the protection offered by s. 13  of the Charter .  Consequently, the question of the scope of such residual protection, which is really at the heart of this appeal, will now be discussed.

 

    2.  Does Section 7 Require Derivative Use Immunity?

 

    In her reasons in this respect, Wilson J. relies to some extent on the decision of the United States Supreme Court in Kastigar v. United States, 406 U.S. 441 (1972).  There, the court based its opinion on the language of the Fifth Amendment, which states, in part, that "No person . . . shall be compelled in any criminal case to be a witness against himself" (emphasis added).  This constitutional provision, in setting out a unified protection against self‑incrimination, stands in stark contrast with the Canadian context.  Here, prior to the Charter , there was no general principle against self‑incrimination, but only two discrete evidentiary rules regarding the non‑compellability of an accused at his trial and the protection afforded to witnesses under s. 5  of the Canada Evidence Act.  The Charter has not introduced a unified right against self‑incrimination in Canadian law;  to the contrary, it has preserved the division of the rules referred to above, in ss. 11(c) and 13 respectively, and further, it may even provide residual protection in yet another provision, s. 7.  This dispersement of rules regarding self‑incrimination in the Canadian constitutional context greatly diminishes, in my view, the persuasive strength of Kastigar in interpreting s. 7  of the Charter .

 

    Pre‑Charter  cases involving derivative evidence establish that the protection afforded by s. 5(2)  of the Canada Evidence Act did not extend beyond the actual testimony of the witness.  Evidence of facts discovered as a result of the testimony was not covered by the immunity available under that provision.  Even in the case of an accused, evidence derived from an improperly obtained confession was held to be generally admissible:  R. v. Wray, [1971] S.C.R. 272.  In discussing the admissibility of a weapon which had been discovered partly as a result of an inadmissible confession, Judson J. (Fauteux and Abbott JJ. concurring) said (at p. 299):

 

The reason given for the unfairness here is that the weapon was discovered partly as a result of an inadmissible confession and partly as a result of the accused going with the police officers and pointing out the place where the weapon was concealed.  In my opinion, there is no justification for recognizing the existence of this discretion in these circumstances.  This type of evidence has been admissible for almost 200 years.  [Emphasis added.]

 

    Since the Charter , the cases which have dealt so far with derivative evidence have almost, if not exclusively, done so in the context of s. 24(2)  of the Charter .  Although we are not concerned here with the application of s. 24(2)  of the Charter  where an accused's Charter  rights have been infringed and the accused claims a remedy, but rather with an attack on the constitutionality of s. 17 of the Act pursuant to s. 52  of the Constitution Act, 1982 , an analogy seems to me to be pertinent.

 

    For the purpose of s. 24(2)  of the Charter , the fairness of the judicial process has been found to be jeopardized where the state infringed the Charter  rights of an accused and obtained a confession;  the proper remedy, in the interest of such fairness, was to exclude the incriminating statement but only if its admission could bring the administration of justice into disrepute (see R. v. Collins, [1987] 1 S.C.R. 265, at p. 284, and R. v. Simmons, [1988] 2 S.C.R. 495), a test more severe than that of fairness to the accused.  Evidence which is not of this type, such as real evidence or derivative evidence was not found as a rule to go to fairness and was not generally excluded on that basis.  Thus, in recent Charter  cases, evidence derived from an accused's improperly obtained statement was nevertheless admitted:  R. v. Woolley (1988), 40 C.C.C. (3D) 531 (Ont. C.A.) and R. v. Black, [1989] 2 S.C.R. 138.  There is no inflexible rule that the admission of such derivative evidence will affect the fairness of the judicial process.  If courts had regarded the use of such derivative evidence as contrary to the principles of fundamental justice, which is the solution adopted by my colleague Wilson J., I entertain no doubt that they would have easily found that its admission would bring "the administration of justice into disrepute".  Indeed, how could it be said that a breach of fundamental justice does not necessarily bring the administration of justice into disrepute?  To state the question is to answer it.  I remark here again that such cases dealt with an accused and we are concerned here with a witness.  Can the rule which applies to an accused be different in that connection and here, more onerous, than the one which applies to a witness?  The contrary, if anything, would seem to be the answer.

 

    Unlike my colleague Wilson J., I am not convinced that a comparative analysis of different legal systems can provide anything more than a mere background in determining "fundamental justice" under s. 7.  Each legal system, intertwined with a particular legal tradition, is predicated on a number of integrated elements, and to look at each piece‑meal through a magnifying glass cannot provide an accurate picture of the whole nor can such an exercise take into account differences between the systems, such as illustrated in Kastigar, supra.  Fundamental justice may take different forms in different societies, given their own legal traditions.

 

    Fundamental justice in our Canadian legal tradition and in the context of investigative practices is primarily designed to ensure that a fair balance be struck between the interests of society and those of its citizens.  In this regard, I fail to see why "fundamental justice" would require an inflexible immunity in respect of derivative evidence under s. 7 and with deference, I am unable to agree with Wilson J.'s conclusion that s. 7 requires such an immunity. 

    To state my views positively, I agree that s. 7 may offer residual protection in commanding some type of immunity in respect of the testimony given by individuals during an investigation.  In my view, "fundamental justice" requires protection coextensive with the individual's testimonial participation in the investigation, that is, use immunity.  Such protection serves the end of preventing the state from using incriminating evidence which was obtained from the individual himself, while at the same time tailoring the protection to what our system considers to be the appropriate boundary of fairness in the judicial process.  Once it is established that our legal tradition recognizes the usefulness of commissions of inquiry and other investigative agencies such as the Commission, the question of the correct amount of protection to be given to witnesses must leave some room for the purpose of proper law enforcement to be served.  Discussing the question, the Law Reform Commission (Commissions of Inquiry: A New Act (1977), Working Paper 17, at p. 36) examined the appropriate threshold of protection as follows:

 

    Should basic protection against self‑crimination be offered witnesses appearing before investigatory commissions?  Many would say it should.  But, in the first place, there is no general right against self‑crimination in Canadian law;  the common law principle nemo tenetur seipsum accusare ("no one is bound to criminate himself") was abolished when s. 5 was introduced in 1893.  Secondly, once it has been accepted that commissions to investigate are desirable in certain circumstances, it is irrational to introduce protection for witnesses that will in many instances prevent meaningful investigation.  An inquiry barred from examining wrongdoing that may lead to criminal prosecutions would have very little room for manoeuvre.  [Emphasis added].

 

These considerations, though expressed before the Charter , are still relevant in an analysis of s. 7 today.  Professor Paciocco also argues that s. 7 imposes a ban on the subsequent use of testimonial evidence.  Commenting on the case law in this respect, he says (Charter Principles and Proof in Criminal Cases (1987), at pp. 592‑93):

 

There have been a number of self‑incrimination claims which have invoked section 7, however, almost always unsuccessfully.  In almost every case the Charter  claimant was asking for more than the appropriate principle offers; the applicants typically requested that a statute or subpoena requiring them to answer questions, the answers to which could not be used against them in a subsequent trial although incriminatory, be quashed so that the applicants could remain silent. . . .  [T]he claims deserved to fail since they attempted to stretch the appropriate principle beyond its legitimate confines.

 

I agree with Paciocco's assessment of the "legitimate confines" of the residual protection against self‑incrimination.  In my opinion, use immunity satisfies the requirement of fundamental justice under s. 7  of the Charter .  In the present appeal, such protection is afforded by s. 20(2) of the Act which was referred to earlier. 

 

    As a result, I conclude that, in so far as it compels corporations to testify, s. 17 of the Act does not infringe upon s. 7  of the Charter  since this provision does not apply to corporations.  Section 8 is not involved in this connection.  The result is the same in the case of corporate officers who are called to testify in their capacity as representatives of a corporation.

 

    As far as it compels individuals to testify in their personal capacity, I also conclude that s. 17 of the Act does not infringe s. 7  of the Charter  and neither is s. 8 involved here.  Section 20(2) of the Act affords witnesses sufficient protection to conform to the requirement of fundamental justice embodied in s. 7  of the Charter .  The right enabling an accused not to be compelled to testify at his own trial in our legal system does not extend to witnesses in proceedings such as the one set up by s. 17 of the Act.  It suffices, for the purpose of s. 7  of the Charter  if witnesses are afforded subsequent use protection guaranteed by s. 20(2) of the Act.  Derivative evidence, which consists mainly of real evidence, cannot be assimilated to self‑incriminating evidence and does not go to the fairness of the judicial process which is what, in the end, fundamental justice is all about.

 

    Consequently, I am of the view that, in so far as it compels the giving of evidence under oath, given the use immunity provided by s. 20(2), s. 17 does not infringe s. 7  or s. 8  of the Charter . 

 

    There remains the question whether a subpoena duces tecum issued under s. 17 of the Act infringes upon ss. 7  or 8  of the Charter .

 

Do Subpoenae Duces Tecum Violate Section 7 or Section 8 of the Charter ?

 

    Both ss. 7  and 8  of the Charter  are invoked here and it is necessary to consider the application of each of these provisions separately.

 

    1.  Section 7

 

    Section 7 is of little assistance with respect to subpoenae duces tecum.  To begin with, for the reasons given above, no claim can be advanced by, or on behalf of, a corporation under this constitutional provision.  As far as individuals qua individuals are concerned, assuming that a subpoena deprives them of their liberty or security of the person, fundamental justice under s. 7 does not extend protection over documents or corporate books and records.  As I remarked earlier, the pre‑Charter  privilege against self‑incrimination was one of limited application.  The second branch of the privilege -- immunity in respect of testimony -- always remained concerned with oral evidence.  The privilege never offered protection against the subsequent use of real evidence.  In Marcoux v. The Queen, supra, Dickson J. stated (at p. 769):

 

In short, the privilege extends to the accused qua witness and not qua accused, it is concerned with testimonial compulsion specifically and not with compulsion generally . . . [Emphasis added.]

 

    Sections 11(c) and 13, which deal specifically with self‑incrimination, read:

 

    11.  Any person charged with an offence has the right

 

                                                                           . . .

 

(c)  not to be compelled to be a witness in proceedings against that person in respect of the offence;

 

    13.  A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.  [Emphasis added.]

 

Section 13 provides a use immunity in favour of witnesses.  In my opinion, this immunity does not extend to cover documents or corporate books and records required to be produced under s. 17 of the Act.  When one considers the carefully formulated wording of s. 13, especially in light of the narrow privilege against self‑incrimination as it existed prior to the Charter , the drafters could not have made any clearer their intention to restrict the scope of the immunity to "testimonial" evidence.  The word "testify" connotes the giving of evidence by means of oral communication in a proceeding.  A witness "testifies" in recounting his or her version of certain events.  This common sense meaning is simply not involved by the act of producing documents to the court.  In coming to the conclusion that breath samples were not covered by s. 13, Zuber J.A. said (R. v. Altseimer (1982), 38 O.R. (2d) 783 (C.A.), at pp. 786‑87):

 

    I pass now to the Charter  itself and it is of some importance to point out the obvious.  The Charter does not confer a broad privilege against self‑incrimination (it does not even use the phrase) but confers specific protection as follows: [text of ss. 11(c) and 13 omitted].

 

    It is plain that the protection continues to be protection against testimonial compulsion and nothing else.  The protection afforded to the witness (s. 13) is enhanced since the witness need no longer claim protection as he had to do pursuant to s. 5 of the Canada Evidence Act, R.S.C. 1970, c. E‑10.  Section 11(c) continues to protect an accused from being compelled to enter a witness‑box.  The protection against testimonial compulsion, in my view, simply has nothing to do with compulsory breath tests pursuant to the Criminal Code .  [Emphasis added.]

 

I have considerable sympathy for the views expressed by Zuber J.A., but for the purpose of the present appeal it is only necessary for me to say that I agree with the above statement to the extent that it would exclude documents or corporate books and records concerned in the present case from the scope of s. 13.

 

    As I said earlier, ss. 11(c) and 13 do not exhaust the Charter 's protection against self‑incrimination.  Thus, an individual who is neither a "person charged with an offence" (s. 11(c)) nor a "witness who testifies in any proceedings" (s. 13) may look to s. 7 for protection in an appropriate case.  However, s. 13 is useful in determining the extent of the protection such an individual may find in s. 7.  In my opinion, the limitation of s. 13 to "testimonial" evidence strongly indicates that s. 7 is likewise limited.  Documents or corporate books and records required under s. 17 of the Act thus fall outside the ambit of protection of s. 7.  Moreover, I would add that an order requiring an individual or the officer of a corporation to produce documents does not involve the fabrication of evidence; the individual or officer acts as a "mere conduit" for the delivery of pre‑existing records (Paciocco, op. cit., at p. 547).  Thus, there is no suggestion that the use of such evidence in a subsequent trial would affect the fairness of the proceedings.

 

    I note that, in the United States, where Fifth Amendment protection is all‑encompassing, corporate officers cannot invoke their constitutional rights against self‑incrimination to oppose an order to produce corporate records.  In Wilson v. United States, 221 U.S. 361 (1911), and Dreier v. United States, 221 U.S. 394 (1911), the court declared that Fifth Amendment protection against self‑incrimination did not extend to corporate books and records in the custody of officers.  This doctrine holds steadfast to this day:  United States v. White, 322 U.S. 694 (1944);  Bellis v. United States, 417 U.S. 85 (1974); and Braswell v. United States, 108 S. Ct. 2284 (1988).  In Braswell, the court summarized the precedents and stated (at p. 2290):

 

    The plain mandate of these decisions is that without regard to whether the subpoena is addressed to the corporation, or as here, to the individual in his capacity as a custodian, see Dreier, supra; Bellis, supra, a corporate custodian such as petitioner may not resist a subpoena for corporate records on Fifth Amendment grounds.

 

These cases were already considered by this Court in N.M. Paterson, supra, in determining that corporate officers were compellable witnesses at the trial of their corporation.

 

    There remains the question whether subpoenae duces tecum infringe upon s. 8  of the Charter .

 

    2.  Section 8

 

    Section 8  of the Charter  protects a reasonable expectation of privacy.  As put by La Forest J. in R. v. Dyment, [1988] 2 S.C.R. 417, at p. 428:

 

    Claims to privacy must, of course, be balanced against other societal needs, and in particular law enforcement, and that is what s. 8 is intended to achieve.

 

Here, although we are dealing with a constitutional attack on s. 17 of the Act launched by all the appellants, only the privacy interest of a corporation is at stake.  Indeed, as it appears from the orders issued in the present case, no documents relating to the personal affairs of the individuals are requested.  However, since in other contexts an individual's privacy may be affected, it appears to me to be appropriate to discuss general principles concerning the application of s. 8  of the Charter  to corporations as well as individuals.  Since the appellant here is an incorporated company, I will deal more particularly with such incorporated bodies, although what is said may also apply to other types of legal entities as well.

 

    Modern corporate existence carries with it a notion of privacy which is at odds with the privacy inhering in physical persons.  This difference flows from the nature of corporate existence.  While individuals as a rule have full legal capacity by the operation of law alone, artificial persons are creatures of the state and enjoy civil rights and powers only upon the approval of statutory authorities.  Even if corporations are given legal capacity, their legal powers may be restricted by the enabling articles of incorporation and legislation.  The corporation's legal existence can be terminated by the state for failure to comply with these restrictions.  Since the state defines the parameters of corporate existence, it would in my view be unreasonable for the corporation to expect that it is completely free to determine by itself whether it exercises its delegated powers in accordance with restrictions imposed by law.  The particularity of corporate privacy interests was discussed by the Supreme Court of the United States in Hale v. Henkel, 201 U.S. 43 (1906), at pp. 74‑75:

 

The individual may stand upon his constitutional rights as a citizen.  He is entitled to carry on his private business in his own way.  His power to contract is unlimited.  He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to criminate him.  He owes no such duty to the State, since he receives nothing therefrom, beyond the protection of his life and property.  His rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution.  Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law.  He owes nothing to the public so long as he does not trespass upon their rights.

 

    Upon the other hand, the corporation is a creature of the State.  It is presumed to be incorporated for the benefit of the public.  It receives certain special privileges and franchises, and holds them subject to the laws of the State and the limitations of its charter.  Its powers are limited by law.  It can make no contract not authorized by its charter.  Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation.  There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its powers.  It would be a strange anomaly to hold that a State, having chartered a corporation to make use of certain franchises, could not in the exercise of its sovereignty inquire how these franchises had been employed, and whether they had been abused, and demand the production of the corporate books and papers for that purpose.

 

That court has since reiterated its view that subpoenae duces tecum issued in the exercise of the state's visitorial rights do not violate the corporation's Fourth Amendment rights:  White, supra.  In Canada, the legal existence of corporations is also the result of a statutory delegation.  Corporations have the legal capacity of natural persons but can exercise those powers only in accordance with the applicable legislation and the articles of incorporation (see, e.g., ss. 15  and 16  of the Canada Business Corporations Act , R.S.C., 1985, c. C‑44 ).  I therefore find the reasoning of Hale v. Henkel relevant in understanding the scope of protection afforded to corporations by s. 8.

 

    While the papers or records of individuals have as a rule no bearing on the lives of others, corporate records almost necessarily affect the economic interests of third parties.  To begin with the business decisions of corporations can have an effect on the interests of its shareholders.  The information and protection of all shareholders is now well entrenched in Canadian corporate law.  Further, as corporations are important (if not exclusive) players on the capital markets, the business decisions of corporations can affect the economy and thus indirectly influence the interests of many individuals in society at large.  These basic differences between persons and corporations have given rise to a number of overriding societal objectives designed to control the public repercussions of corporate activities.  In this context one can understand the role served by the numerous and thorough disclosure requirements which are today imposed on corporations.  There are requirements of informing shareholders, such as interim financial reports.  Other disclosure requirements aim at informing the public, such as the requirement of a prospectus upon the issuance of shares or modification of the corporation's capital structure.  These are far from exceptional events in a corporation's life.  There are additional disclosure duties to the public respecting the economic activity of the corporation.  Although of general application, these requirements concern corporations more intimately, as corporations are important initiators of economic activity.  Communication of often sensitive information to municipal, provincial and federal authorities is a predictable, if not day‑to‑day, occurrence in a corporation's life.  As a result, at least as regards duties to disclose internal information of an economic nature, the privacy interest of corporations is relatively low.

 

    This background must not be overlooked when considering the constitutionality of s. 17 of the Act in relation to s. 8  of the Charter  as regards the privacy interest of corporations.

 

    I am prepared to accept Wilson J.'s conclusion that subpoenae duces tecum constitute "seizures" for the purpose of that provision.  The contrary point of view, which is taken by Sopinka J., fails to recognize that an actual intrusion and a compulsion to produce are functionally equivalent.  Nearly all the authors who have considered this question came to this conclusion as well.  For example, see Y. de Montigny, "La protection contre les fouilles, les perquisitions et les saisies abusives: un premier bilan" (1989), 49 R. du B. 53, at p. 94:

 

[TRANSLATION] . . . we do not feel it is justifiable, or even desirable, to exclude subpoenas duces tecum and all related proceedings from the protection offered by s. 8, if only to avoid the possibility of something that may not be done directly being done indirectly.

 

See also Y. Ouellette, "La Charte canadienne  et les tribunaux administratifs" (1984), 18 R.J.T. 295, at p. 313. 

 

    The question is therefore one of reasonableness.  This implies balancing the public interest in protecting the privacy of individuals against the public interest in law enforcement in the context of an anti‑combines investigation.  On that aspect, I agree with Wilson J. that "[w]hat may be reasonable in the regulatory or civil context may not be reasonable in a criminal or quasi‑criminal context" and that "the more akin to the traditional criminal law the legislation is, the less likely it is that departures from the Hunter criteria will be countenanced" (p. 000).  This point of view is shared by de Montigny, loc. cit., at p. 94, when he states that while subpoenas can be considered "searches",

 

[TRANSLATION]  [t]his does not mean that the legislation authorizing them, and their use, has to be subject to all the rigour of the rules formulated by the Supreme Court in the context of the criminal law.

 

I part company with Wilson J., however, where she places the Act on the "criminal", rather than the "regulatory" side of the division.  In view of General Motors of Canada, supra, I see no reason to distinguish between the Income Tax Act, which was involved in R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 000, released concurrently, and the Act for the purposes of s. 8  of the Charter .  Both statutes involve penal consequences for non‑compliance but in my view this is not determinative; the regulatory nature of these statutes is.  In General Motors of Canada, the Chief Justice made it abundantly clear that he envisaged the legislation to constitute a "complex scheme of economic regulation" and "an investigatory mechanism for revealing prohibited activities" (p. 676).  I point out that the Act which was considered in that case was in all respects the same as the one which applies to the present appeal.  Because the Act's administrative machinery and enforcement provisions are now recognized as part of a regulatory scheme, the reasonableness of the subpoena duces tecum issued under s. 17 must be assessed taking into account a number of factors, including the importance of the Act's underlying purpose, the necessity of impairing privacy interests, and the absence of other, less onerous, alternatives.  These are not intended to form an exhaustive list of factors.

 

    Assessing the reasonableness of the invasion of privacy resulting from the issuance of a subpoena duces tecum under s. 17 of the Act, as I pointed out earlier, the Act's purpose is to eradicate practices that impair free competition in the market‑place.  First, in my view, it cannot be disputed (and indeed it was not disputed before this Court) that this legislative purpose serves important socio‑economic interests.  Second, the existence of a mechanism of discovery is necessary in order to properly serve the regulatory objective of the legislation.  That the mandatory production of corporate documents is rationally connected to the Act's main purpose is in my view clear.  In Hoffmann‑La Roche Ltd., supra, Martin J.A. noted that (at p. 725):

 

. . .  Parliament evidently considered that ordinary police investigation by the Province would not be effective to investigate the kinds of conduct at which the Combines Investigation Act strikes, and which seldom respects provincial boundaries.

 

I agree with the following submission of the respondents Director of Investigation and Research and the Attorney General of Canada:

 

    The subpoena power at issue in this appeal is rationally related to the legislative objective reflected in the Act.  This information gathering mechanism is essential to the investigation of complex market behaviour including sophisticated trade combinations.

 

Third, as a means chosen to bring about the legislative end, a subpoena is significantly less intrusive than other alternatives.  Although they are functional equivalents, a requirement to produce documents impairs considerably less on a corporation's or an individual's privacy than the actual entry into, and search of, its place of business or home.  This is especially so, in the case of corporations, since, for the reasons given above, a corporation's privacy interest with respect to a request for documents is relatively low.  In my opinion, in this respect, a more stringent test of reasonableness would be appropriate if the impairment was more severe, such as was the case in Hunter v. Southam Inc., [1984] 2 S.C.R. 145.  Fourth, while there is no express condition precedent to the issuance of the subpoena, the order can be contested and reviewed before an impartial judicial officer.  Section 17(3), which was referred to earlier, provides that no member of the Commission shall punish individuals for contempt unless a judge of the Federal Court has certified that this power can be exercised.  As a result, an individual has the option of refusing to comply with an order to testify, at least until the order is brought in review before a judge of the Federal Court.  A hearing is provided for the review.  I agree with Sopinka J. that a judge sitting in review has significant powers which at least prevent the orders to be used in a "fishing expedition" by the Commission.  The review thus provides a safeguard to ensure that s. 17 orders are issued for the sole purpose of advancing the regulatory aims of the Act.

 

    Commissions of inquiry and other investigative agencies serve a useful purpose in our legal tradition.  As noted by the Law Reform Commission (op. cit., at p. 63):

 

    For the reasons given, there is no doubt that commissions of inquiry serve a useful purpose.  Yet, they can be a waste of time if they are inefficient or lacking in powers, or dangerous if they have immense powers that are not wisely used.

 

    To require the Commission to resort to courts in order to obtain a warrant and, in so doing, to have to establish "reasonable and probable grounds . . . to believe that an offence has been committed and that there is evidence to be found" (Hunter, supra, at p. 168), I venture to say, would only defeat the purpose of the Act which is to investigate allegations of wrongdoing and report its evidentiary findings.  This sets too high a threshold in the context of a subpoena duces tecum under s. 17 of the Act.

 

    Between an outright search and seizure and a subpoena duces tecum, which in the limit may fall within the definition of a seizure for Charter  purposes, there is a difference in degrees which must be reflected in the standard of reasonableness to be applied.  That is, in my view, what a reasonable expectation of privacy means in the context of the Act.

 

    In summary, in assessing the reasonableness of the public interest in the protection of individual privacy in s. 8  of the Charter , one must not lose sight that the exercise involves a balancing of interests.  No right is absolute and s. 8  of the Charter  makes this clear by stating that reasonable seizures are not forbidden by the Constitution.  The purpose of the legislation under attack is not to be overlooked in the balancing to be done under s. 8.  In the specific context of anti‑combines legislation, this purpose is especially important since it strikes at a fundamental element of our society, free competition in a market economy.  The public interest in the eradication of practices inhibiting free competition must be balanced against the rights of each individual to be free from unwarranted state intrusion into their lives.  There is no doubt in my mind that public interest in the freedom and protection of citizens in the market-place prevails over the minimal infringement of the privacy interests of those required to disclose information of an economic nature.

 

    As a result, I conclude that, in so far as it requires the production of documents, s. 17 of the Act does not infringe s. 7  of the Charter .  As far as corporations are concerned, s. 7 is not applicable to them.  With regards to individuals in their personal capacity, it would be surprising indeed, if not paradoxical, if a witness not covered by s. 13  of the Charter  could enjoy a wider protection under the residual protection of s. 7  of the Charter  than is available to a "witness who testifies in any proceedings" under s. 13  of the Charter .  In my view, the protection of s. 13 excludes documentary evidence such as the one contemplated by s. 17 of the Act, and s. 7 is similarly restricted.

 

    As regards s. 8  of the Charter , while I agree that subpoenae duces tecum may constitute "seizures" for the purpose of that provision, given the important objectives of the Act, the nature of the regulatory scheme here in place and the means necessary to reach these objectives, the subpoena's low degree of intrusiveness, the safeguards provided in the Act in this connection, and, in the case of corporations, their low expectation of privacy with respect to requests for economic information, I conclude that subpoenae duces tecum issued under s. 17 of the Act do not constitute "unreasonable" seizures.

 

    For these reasons, I am of the view that, in so far as it requires the production of documents, s. 17 of the Act does not infringe upon either s. 7  or 8  of the Charter .

 

III.  Conclusion

 

    On the whole, I find that s. 17 of the Act, both as regards testimonial and documentary evidence, infringes neither s. 7 nor s. 8  of the Charter .  Accordingly it is not necessary to deal with the arguments based on s. 1  of the Charter .

 

    I would dismiss this appeal with costs throughout and I would answer the constitutional question in the negative.

 

//Sopinka J.//

 

    The following are the reasons delivered by

 

    Sopinka J. (dissenting in part) -- I have had the advantage of reading the reasons for judgment of Justice Wilson and I agree with her that s. 17 of the Combines Investigation Act, R.S.C. 1970, c. C‑23 (the "Act"), violates s. 7  of the Canadian Charter of Rights and Freedoms , in particular the principle of fundamental justice in which the right to remain silent is embodied.  I would limit the extent of the invalidity of s. 17 to the provisions of it that compel testimony.  In my opinion, to the extent that s. 17 compels production of documents, it is not invalid either as contravening the privilege against self‑incrimination, the right to remain silent, or s. 8  of the Charter .

 

Purpose of the Act

 

    The most recent statement of this Court of the purpose of the Act is contained in General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, at p. 676:

 

The purpose of the Act is to eliminate activities that reduce competition in the market‑place.  The entire Act is geared to achieving this objective.  The Act identifies and defines anti‑competitive conduct.  It establishes an investigatory mechanism for revealing prohibited activities and provides an extensive range of criminal and administrative redress against companies engaging in behaviour that tends to reduce competition.

 

    Section 17 is a very important tool in the arsenal of the Director of Investigation and Research in the conduct of investigations.  The activity which is almost invariably the target of investigation under the Act is that of the business community.  Persons examined under s. 17 are employees, directors and officers of corporations.  The documents of which production is sought are generally corporate records and other documents generated in the conduct of business.  When charges are laid the accused are corporations.  Very rarely are individuals included, although the Act is clear that individuals may be liable.

 

The Issues

 

    The submission of the appellants is that s. 17 is invalid on two grounds:

 

1.To the extent that it compels testimony and documents from potential suspects, it violates the privilege against self‑incrimination and the right to remain silent and therefore contravenes s. 7  of the Charter ;

 

2.To the extent that it authorizes an order to be made for the production of books, papers, records and other documents, it purports to sanction an unreasonable seizure and is inconsistent with s. 8  of the Charter .

 

The Right to Remain Silent and Section 7

 

    I accept the respondents' submission that the privilege against self‑incrimination qua witness is limited by s. 5 of the Canada Evidence Act, R.S.C. 1970, c. E‑10 (now R.S.C., 1985, c. C‑5 ).  That provision abolished the right of a witness to object to answer questions which might incriminate the witness but substituted protection against subsequent use of the witness's testimony.  This provision, but in somewhat wider form, has been given Charter  recognition in s. 13 (see McIntyre J. in Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 377.)  The terminology used in the cases has not always distinguished between the privilege against self‑incrimination and the right to remain silent.  The privilege against self‑incrimination is often used as a general term embracing aspects of the right to remain silent.  In origin they derive from the principle nemo tenetur seipsum accusare.  Nevertheless, in modern usage, the privilege against self‑incrimination is limited to the right of an individual to resist testimony as a witness in a legal proceeding.  A privilege is an exclusionary rule of evidence which is appropriately asserted in court.  A modern statement of the privilege emphasizing its application in juridical proceedings is contained in the judgment of Goddard L.J. in Blunt v. Park Lane Hotel, Ltd., [1942] 2 K.B. 253.  He stated, at p. 257:

 

... the rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty or [in a criminal case] forfeiture which the judge regards as reasonably likely to be preferred or sued for.

 

    The right to remain silent is the basis for the non‑compellability of the accused as a witness at trial but it extends beyond the witness box.  In R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.), at p. 94, Martin J.A. outlined its scope:

 

    The right of a suspect or an accused to remain silent is deeply rooted in our legal tradition.  The right operates both at the investigative stage of the criminal process and at the trial stage.

 

    Indeed it is the basis for the rule that silence of the person in the face of an accusation by or in the presence of the police cannot serve as evidence against the accused.  In R. v. Symonds (1983), 9 C.C.C. (3d) 225 (Ont. C.A.), evidence was admitted at trial that the accused chose to say nothing after the charge and standard caution were read to him.  A new trial was ordered by the Court of Appeal for Ontario.  At page 227, Martin J.A. said:

 

    It is fundamental that a person charged with a criminal offence has the right to remain silent and a jury is not entitled to draw any inference against an accused because he chooses to exercise that right.  We think that in the absence of some issue arising in the case which makes the statement of an accused, following the giving of a caution, that he has nothing to say relevant to that issue, such evidence is inadmissible.  In the present case there was no issue with respect to which the appellant's failure to reply was relevant and the evidence should not have been tendered:  see R. v. Robertson (1975), 21 C.C.C. (2d) 385, 29 C.R.N.S. 141.

 

    Further, in the present case there was no instruction to the jury that the accused had the right to remain silent and that they were not entitled to draw any adverse inference from the fact that counsel had advised him not to make a statement following the giving of the caution.

 

To the same effect are R. v. Eden, [1970] 3 C.C.C. 280 (Ont. C.A.), at p. 283; R. v. Engel (1981), 9 Man. R. (2d) 279 (C.A.), at p. 283; R. v. Minhas (1986), 53 C.R. (3d) 128 (Ont. C.A.), at p. 143; R. v. Christie, [1914] A.C. 545 (H.L.); R. v. Clarke (1979), 33 N.S.R. (2d) 636 (C.A.); and R. v. Hansen (1988), 46 C.C.C. (3d) 504 (B.C.C.A.)

 

    In Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218, Estey J. recognized the right to remain silent in the following uncompromising terms (at p. 258):

 

    One of the main bastions of the criminal law is the right of the accused to remain silent.  In the coldest practical terms, that right, so long as it remains unaltered by Parliament, may not be reduced, truncated or thinned out by provincial action.

 

    The Court of Appeal in this case (1986), 57 O.R. (2d) 257 acknowledged its existence in the following passage at p. 262:

 

In my view the right must be restricted to police inquiries and the like and the trial proceedings themselves.

 

    The distinction between the privilege and the right is clearly made in Marcoux v. The Queen, [1976] 1 S.C.R. 763.  At page 768 and pp. 770‑71, Dickson J. (as he then was) stated:

 

    The limit of the privilege against self‑incrimination is clear.  The privilege is the privilege of a witness not to answer a question which may incriminate him.  That is all that is meant by the Latin maxim nemo tenetur seipsum accusare, often incorrectly advanced in support of a much broader proposition.  The extent of the maxim is stated in Broom's Legal Maxims (10th ed.) as follows, pp. 660‑661:

 

It may be stated as a general rule that a witness in any proceeding is privileged from answering, not merely where his answer will criminate him directly but also where it may have a tendency to criminate him.

 

                                                                            ...

 

    An accused cannot be forced to disclose any knowledge he may have about an alleged offence and thereby supply proof against himself but (i) bodily condition, such as features, exhibited in a courtroom or in a police line‑up, clothing, fingerprints, photographs, measurements ... and (ii) conduct which the accused cannot control, such as compulsion to submit to a search of his clothing for concealed articles or his person for body markings or taking shoe impressions or compulsion to appear in Court do not violate the principle.  [Emphasis in original.]

 

    This distinction answers the concerns of my colleague, Lamer J., about s. 5(1)  of the Canada Evidence Act which deals purely and simply with the privilege against self‑incrimination.  To the extent that it narrowed the common law, it could not be said to violate s. 7 because the privilege against self‑incrimination is specifically dealt with in s. 13  of the Charter  and no residue of it is left to s. 7.

 

    The testimonial aspect of the right to remain silent is specifically included in s. 11( c )  of the Charter .  This is an illustration of the kinds of rights that are included in the more expansive provisions of s. 7  of the Charter : see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 502‑3, per Lamer J.  It would be strange indeed if the other important aspect of this fundamental principle of the common law, the right of a suspect to remain silent during the investigative stage, were not included in s. 7.  In my opinion, this right has the status of a principle of fundamental justice, and it is therefore included in s. 7, the repository of many of our basic rights which are not otherwise specifically enumerated.  In adopting the wording of s. 24(2), the framers of the Charter  were concerned with the question of the admissibility of evidence obtained by illegal conduct, and in particular, derivative evidence discovered as a result of a confession obtained by unlawful means.  On the one hand, this Court in R. v. Wray, [1971] S.C.R. 272, affirmed that relevant evidence obtained by means of an inadmissible confession was admissible and that the trial judge had no discretion to exclude it unless it had trivial probative value but was highly prejudicial.  Such evidence was and is admitted under the law of England.  On the other hand, in the United States, evidence obtained as a result of a breach of constitutional rights is inadmissible:  see Mapp v. Ohio, 367 U.S. 643 (1961); but see United States v. Leon, 468 U.S. 897 (1984).  The most common context in which this problem had arisen both here and in the United States was an involuntary confession obtained by threats or other forms of coercion by persons in authority.

 

    Section 24(2) has been regarded as a compromise between these two positions.  Evidence obtained in a manner that violates any of the rights or freedoms in the Charter  is excluded if its admission could bring the administration of justice into disrepute.  If the right to remain silent is not in s. 7, there would ordinarily be no Charter  breach in the obtaining of an involuntary confession.  Derivative evidence would continue to be admitted automatically under the Wray decision notwithstanding that its admission would bring the administration of justice into disrepute.  What was thought to be the solution, through compromise, to the difficult problem referred to above will have failed.

 

    The following passage from the reasons of Cory J.A. (as he then was) in R. v. Woolley (1988), 40 C.C.C. (3d) 531 (Ont. C.A.), is a fine example of the operation of the application of this compromise in practice.  At page 539, Cory J.A. stated:

 

    The right to remain silent is a well‑settled principle that has for generations been part of the basic tenets of our law.  It follows that the protection given by this principle must come within the purview of s. 7  of the Charter .  The rule enunciated by the Supreme Court of Canada in Wray has, of course, been abrogated by s. 24(2)  of the Charter  where evidence has been obtained in a manner that infringes or denies any rights or freedoms guaranteed by the Charter .  In light of that conclusion, it can be seen that, dependent upon the circumstances, the real evidence obtained as a result of a violation of the right to remain silent may also be inadmissible if to admit such evidence would bring the administration of justice into disrepute.

 

    If the right to remain silent was not included in s. 7, the Court of Appeal in this case would have been bound to apply the Wray principle.

 

    If I am correct in this conclusion then, to paraphrase Estey J. in Keable, supra, the right to remain silent may not be reduced, truncated or thinned out by federal or provincial action.

 

    It is not necessary to dwell on the precise limits of the right to remain silent which is included in s. 7.  It is sufficient for the purpose of this appeal to state that it is a right not to be compelled to answer questions or otherwise communicate with police officers or others whose function it is to investigate the commission of criminal offences.  The protection afforded by the right is not designed to protect the individual from the police qua police but from the police as investigators of criminal activity.  As with the privilege against self‑incrimination, the right to remain silent protects the individual against the affront to dignity and privacy which results if crime enforcement agencies are allowed to conscript the suspect against himself or herself.  If this right is protected by the Charter , then it follows that neither the provinces nor the federal government can transfer the investigative function, which is normally carried out by the police, to other agents who are empowered by statute to force suspects or potential suspects to testify.

 

    Grange J.A. in his reasons in the Court of Appeal was of the view that there was no restraint on Parliament in this regard.  He stated (at p. 262):

 

The record of federal (and even provincial) Royal Commissions is replete with instances of inquiries into general and specific crime with the suspects compelled to testify.  The limitations expressed with respect to certain lines of inquiry in Di Iorio and Fontaine v. Warden of the Common Jail of Montreal and Brunet et al. (1976), 73 D.L.R. (3d) 491, 33 C.C.C. (2d) 289, [1978] 1 S.C.R. 152 and A.‑G. Que. and Keable v. A.‑G. Can. et al. (1978), 90 D.L.R. (3d) 161, 43 C.C.C. (2d) 49, [1979] 1 S.C.R. 218, resulted from the fact that those were provincial inquiries and the applicable provincial Inquiries Act could not transgress upon the federal power over criminal law and procedure.

 

    The cases cited were decided when the only way to protect fundamental rights from provincial legislative invasion was to resort to a division of powers argument.  The fact that this bastion of the common law was subject to federal legislation did not detract from the fact that it was nonetheless a principle of fundamental justice.  Estey J., in Keable, was not called upon to, nor did he, address limitations that might be imposed on the federal power by the Canadian Bill of Rights or the Charter .  The former was not a complete obstacle to federal legislation abrogating a fundamental right because it could be altered by Parliament with the appropriate declaration.  The Charter was, of course, not in existence.

 

    The Di Iorio case, supra, referred to by Grange J.A., dealt with the Quebec Inquiry into organized crime.  As pointed out by Dickson J. (at p. 201), the provincial inquiry was not set up to inquire "into a particular crime or transaction which later might be the subject of a criminal charge".  Rather, its purpose was more general: "to meet the new and malign menace presented by organized crime" (p. 208).  Dickson J. rejected the argument that the inquiry was a colourable attempt to set up a new method of criminal investigation.  He stated, at p. 222:

 

Quebec's Crime Inquiry introduces no new and insidious form of investigation into our judicial system and there is no evidence before the Court that it is a colourable attempt to evade the procedural provisions of the Criminal Code .

 

Dickson J. concluded that the inquiry did not constitute an invasion of the federal government's exclusive authority over criminal law and procedure.  In the following conclusion, he emphasized the limits of the Court's power, at the time, to protect fundamental rights (at p. 222):

 

Whether or not one agrees with a result which may force a person to assist in an investigation of his criminal activity, the provisions of s. 5  of the Canada Evidence Act and both federal and provincial Inquiries Act compel such a result.  Quebec's Crime Inquiry introduces no new and insidious form of investigation into our judicial system and there is no evidence before the Court that it is a colourable attempt to evade the procedural provisions of the Criminal Code .

 

    These pre‑Charter  cases were concerned with the invasion of the right to remain silent through the use of public inquiries.  The only means available to impose limitations on the extent of the infringement was to treat the right as an aspect of the criminal law.  Provided that there was no colourable attempt to transfer to an inquiry the investigative powers of the police, the fact that incidental to another purpose some evidence of specific crime was elicited did not encroach upon the federal criminal law power.  The impact on the rights of a suspect was cushioned by the operation of s. 5  of the Canada Evidence Act.  The distinction is aptly illustrated by the case of Re Nelles and Grange (1984), 46 O.R. (2d) 210 (C.A.)  An inquiry was established under provincial legislation to inquire into the mysterious deaths of infants at the Hospital for Sick Children in Toronto.  A police investigation and criminal charges had failed to identify the perpetrator.  An issue arose as to whether the Commissioner could inquire and report on the identity of any person involved in the non‑accidental death of any infant or, to use the short form, whether he could "name names".  In concluding that the Commissioner could not, the court stated at pp. 215‑16:

 

A public inquiry is not the means by which investigations are carried out with respect to the commission of particular crimes ....  Such an inquiry is a coercive procedure and is quite incompatible with our notion of justice in the investigation of a particular crime and the determination of actual or probable criminal or civil responsibility.

 

Accordingly, the inquiry was limited to the more general question as to how the infants died without identifying specific crimes and the perpetrator of specific crimes.

 

    Obtaining evidence from suspects as a basis for commencing criminal proceedings is not a merely incidental effect of s. 17 of the Act.  In this field of anti‑competitive crime the police work is carried out largely, if not exclusively, by the Director and his staff.  Although s. 17 has other purposes, an important one is to aid the Director and his staff in investigating specific crimes.  To this extent, the hearing officer is a policeman armed with a subpoena.  Unless we are prepared to uphold legislation that provides the police generally with such powers, s. 17 cannot stand.  Parliament has not separated out of s. 17 its use for different purposes, many of which would not violate the right to remain silent.  Accordingly, the whole of the provision relating to the compulsion of testimony violates s. 7.

 

    I agree with Wilson J. for the reasons expressed by her that this violation cannot be justified under s. 1  of the Charter , and s. 17 to the extent of its inconsistency with s. 7 must be struck down.

 

Production of Documents and Section 7

 

    The appellants submitted that the right to remain silent and the privilege against self‑incrimination protect a suspect not only from compelled testimony but also from compelled production of documents.  Accordingly they urged the Court to strike down not only the provisions of s. 17 relating to oral testimony but those relating to production of documents as well.

 

    In my opinion, this proposition is not supported either on the basis of the origin, the rationale or the application in Canada of the right to remain silent and the privilege against self‑incrimination.  The origin of these principles is usually attributed to the revulsion occasioned by the procedures of the Star Chamber.  These were coercive procedures relating to oral testimony.  In a unanimous judgment of this Court in R. v. Amway Corp., [1989] 1 S.C.R. 21, at p. 40, the dominant rationale underlying the rules against self‑incrimination was stated to be:

 

... the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth.

 

In her reasons, my colleague expresses it as follows (at p. 000):

 

    Having reviewed the historical origins of the rights against compellability and self‑incrimination and the policy justifications advanced in favour of their retention in more modern times, I conclude that their preservation is prompted by a concern that the privacy and personal autonomy and dignity of the individual be respected by the state.  The state must have some justification for interfering with the individual and cannot rely on the individual to produce the justification out of his own mouth.

 

    The distinction between evidence that is brought into existence by conscripting the accused against himself or herself and obtaining pre‑existing evidence which is in the possession of the accused is one that permeates our law.  Lamer J. applied this distinction in R. v. Collins, [1987] 1 S.C.R. 265, in outlining the factors to be considered in applying s. 24(2)  of the Charter .  He stated, at p. 284:

 

    It is clear to me that the factors relevant to this determination will include the nature of the evidence obtained as a result of the violation and the nature of the right violated and not so much the manner in which the right was violated.  Real evidence that was obtained in a manner that violated the Charter  will rarely operate unfairly for that reason alone.  The real evidence existed irrespective of the violation of the Charter  and its use does not render the trial unfair.  However, the situation is very different with respect to cases where, after a violation of the Charter , the accused is conscripted against himself through a confession or other evidence emanating from him.  The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self‑incrimination.

 

    Dickson J. drew this distinction in Marcoux, supra, when he stated, at pp. 770‑71:

 

    An accused cannot be forced to disclose any knowledge he may have about an alleged offence and thereby supply proof against himself but (i) bodily condition, such as features, exhibited in a courtroom or in a police line‑up, clothing, fingerprints, photographs, measurements ... and (ii) conduct which the accused cannot control, such as compulsion to submit to a search of his clothing for concealed articles or his person for body markings or taking shoe impressions or compulsion to appear in Court do not violate the principle.

 

    It is a distinction that is made virtually every day in connection with police investigations.  While suspects are entitled to remain silent, their documents may be seized by means of a search warrant under the Criminal Code .  No right to remain silent or privilege against self‑incrimination will avail to protect against seizure of the documents.  Examples abound of the routine admission of documentary evidence which has been seized:  see for example Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Gaich (1956), 24 C.R. 196 (Ont. C.A.); and R. v. Hannam, [1964] 2 C.C.C. 340 (N.S.C.A.)

 

    It might be suggested that this is not due to the absence of a right to the protection of documents but to the uncompromising language of the Code.  This Court has held, however, that the search warrant provisions of the Code must be read subject to the rules of privilege notwithstanding the absence of qualifying words in the provisions themselves:  see Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860.  If there had existed a right to protect documents comparable to the right to remain silent, I would have expected some evidence of its assertion.  There appears to be none.

 

    I recognize that the act of producing documents may have communicative aspects.  Production of a document may be relied on as an admission by the party producing it that the document exists, that it was in his or her possession, and that he or she had knowledge of its contents:  see R. v. Container Materials Ltd., [1940] 4 D.L.R. 293 (Ont. C.A.); and R. v. Hashem (1940), 73 C.C.C. 124 (N.S.C.A.)  Furthermore, if the party producing them has recognized, adopted or acted on the documents, they will be admissible to prove the truth of their contents:  see R. v. Famous Players, [1932] O.R. 307 (S.C.)  In addition, s. 45(2)* of the Act has extended the common law to expand the inferences that may be drawn from the fact of possession of documents.  In the United States, although the production of documents is not generally accorded Fifth Amendment protection, communicative aspects of such production by an individual are not admissible against the individual.  See Braswell v. United States, 108 S. Ct. 2284 (1988).  It is not necessary or desirable to decide this question in this case.  A decision on this question can more appropriately be made if and when communicative aspects arising out of the production of documents are sought to be tendered as evidence by the Crown.

 

    I conclude therefore, on this aspect of the case, that s. 17 of the Act, to the extent that it authorizes an order to compel production of documents, does not contravene s. 7  of the Charter  and is valid.

 

Section 8

 

    I respectfully disagree with my colleague Wilson J. that an order under s. 17 of the Act requiring the production of books, papers and records or other documents constitutes a seizure within the meaning of s. 8  of the Charter .

 

    A starting point in attempting to determine what the framers of the Charter  meant by the word "seizure" is the statement of Marceau J. (dissenting on this point) in Ziegler v. Hunter, [1984] 2 F.C. 608 (C.A.)  In his view, a seizure is "the taking hold by a public authority of a thing belonging to a person against that person's will" (p. 630).

 

    While useful, this definition introduces words which themselves require definition.  What constitutes "taking hold"?  When a demand for production is made and the validity of that demand is by law open to challenge, the demanding authority has no right to take hold of the documents merely upon demand.  Accordingly the existence of a right of challenge is crucial in characterizing the nature of the process employed by the demanding authority.  It is for this reason that a number of cases have used the subpoena duces tecum as the paradigm of a demand for documents that does not constitute a seizure.  In Re Belgoma Transportation Ltd. and Director of Employment Standards (1984), 47 O.R. (2d) 309 (Div. Ct.), Southey J. held that s. 45 of the Employment Standards Act, R.S.O. 1980, c. 137, did not authorize a seizure because the section did not allow an officer to actually seize any documents against the will of the custodian.  The only recourse of the Director of Employment Standards was to prosecute.  The person under investigation could therefore challenge the validity and extent of the demand.  At page 311, Southey J. stated:

 

It appears to us that a person being investigated under this statute, is in a position very similar to that which faces a person served with a subpoena duces tecum.  If the person served with the subpoena is of the view that the documents he is required to bring are not compellable, either as not being relevant or as being privileged or on some other ground, then it is open to him to refuse to bring them and the question of the validity of his refusal may be determined in proceedings to enforce the subpoena.

 

    This is a distinction that was made as well by Strayer J. in Tyler v. M.N.R., [1989] 1 C.T.C. 153 (F.C.T.D.)  At pages 159‑60, he stated:

 

... with respect to section 8, I am satisfied that the obtaining of information by the Minister under subsection 232.1(1) of the Income Tax Act, does not amount to a "seizure".  There is no physical intrusion involved.  The taxpayer is required by law to provide the information demanded of him, but he is at liberty to challenge, as he is doing in these proceedings, the validity of the requirements before providing the information.

 

    It was largely on this basis that the majority of the Federal Court of Appeal concluded in Ziegler, supra, that an order for production under s. 17 of the Act did not constitute a seizure.  Le Dain J. (as he then was) agreed with Hugessen J. in this regard.  He stated in part (at p. 618):  "In my opinion an order in the nature of a subpoena duces tecum is neither a search nor a seizure within the meaning of section 8."  Re Gershman Produce Co. and Motor Transport Board (1985), 22 D.L.R. (4th) 520 (Man. C.A.) is to the same effect.

 

    It may be that, once the review procedure is completed and the demanding authority has cleared away all legal impediments to the enforcement of its demand, there is a seizure.  This apparently was the case in Re Alberta Human Rights Commission and Alberta Blue Cross Plan (1983), 1 D.L.R. (4th) 301 (Alta. C.A.)  See Re Reich and College of Physicians and Surgeons of Alberta (No. 2) (1984), 8 D.L.R. (4th) 696 (Alta. Q.B.), at pp. 702‑3.  A decision on this point is not essential in this case.  No review procedure has been carried out here and no documents have been produced.  The appellants are free to seek judicial review of the s. 17 orders.

 

    There is no question that an order made under s. 17 is reviewable.   Grange J.A. stated at pp. 268‑69:

 

    What happens under s. 17 is that an order is issued.  An order is of course to be obeyed and if it is obeyed then the consequence is much the same as a seizure under s. 10.  But if it is not obeyed no penalty can be imposed without the matter being considered by an impartial judicial arbiter.  Moreover, as appears from Director of Investigation & Research v. Restrictive Trade Practices Com'n et al., supra, the order can be attacked on motion to review before it takes effect.  The result of the order is really no different from that consequent upon the issuance of a subpoena duces tecum which can be issued in either civil or criminal proceedings without any requirement of assessing its reasonableness and the conflicting interests of the parties.

 

                                                                          . . .

 

It is not necessary to formulate a general rule as to what constitutes a seizure; it is sufficient to say that the s. 8 prohibition does not encompass an order requiring the production of documents so long as the section authorizing the order (or the law apart from that section) gives the person required to produce a reasonable opportunity to dispute the order and prevent the surrender of the documents.  That in my view is precisely the position under s. 17.

 

    In R. v. McKinlay Transport Ltd. (1987), 62 O.R. (2d) 757 (C.A.), which raises the same issue in relation to s. 231(3) of the Income Tax Act, Grange J.A. said this, at p. 760:

 

    As Trainor J. pointed out, the subsection of the Income Tax Act is not unqualified or unlimited.  It is subject to certiorari proceedings wherein the requirement will be tested objectively to determine whether it is authorized by the section and whether it is relevant to the tax liability of a specific person.  No "fishing expedition" will be permitted:  see Canadian Bank of Commerce v. A.‑G. Can. (1962), 35 D.L.R. (2d) 49, [1962] S.C.R. 729, 62 D.T.C. 1236, and James Richardson & Sons, Ltd. v. M.N.R. (1984) 9 D.L.R. (4th) 1 at p. 7 et seq., [1984] 1 S.C.R. 614 at pp. 623 et seq., [1984] 4 W.W.R. 577.  In a system where the tax authorities depend largely on the good faith and integrity of the taxpayer to disclose information relevant to tax liability, it is necessary to give wide investigative powers to those authorities without compelling them to give statements under oath of reasonable and probable grounds for the requirement to produce, particularly where the requirement does not constitute enforced production.  The essential consideration in my view is that the requirement to produce is not so intrusive as a search or seizure, that it in no sense resembles a search and cannot be tantamount to a seizure because the person subject to it has a right to take action to circumvent the required production.

 

    Although the extent of review which was permitted in the cases referred to in the above passage is limited, the Bank of Commerce case, the seminal case on this point, was decided before the decision in Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311.  That case extended the duty of fairness to administrative tribunals that were previously considered immune from review.  The concept of fairness is a flexible one and its content will vary.  As a tribunal approaches the functions of a court, the rules of natural justice and fairness require that it behave more like a court.  At the low end of the scale, the investigative tribunal need only respect the most basic rules of fairness.  In my view the extent of the duty applicable to the Director in proceedings under s. 17 is that stated by Marceau J. in Director of Investigation and Research v. Restrictive Trade Practices Commission (1985), 4 C.P.R. (3d) 59 (F.C.A.), at p. 63:  "The only justifiable limitation would be that the documents be germane to the issues and not subject to privilege."  In order to comply with this duty, the Director must disclose the purpose of the inquiry in sufficient detail to enable the persons affected and the court to determine whether the documents are relevant to the issue.  Anything less would enable the Director to embark on a pure fishing expedition.  Where the purpose of the inquiry is to investigate whether an offence has been committed, there is no obligation on the Director to justify the inquiry on the basis of a belief on reasonable grounds that an offence has been committed:  see Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181.

 

    I disagree with my colleague that the opportunity for review before the documents are produced goes to the reasonableness and not the existence of a seizure.  This factor bears directly on the extent of governmental intrusion.  A mere demand which is not yet enforceable is in this age of pan‑governmental activity a minimal intrusion.  It becomes somewhat more intrusive if a court has ordered that the demand is valid, enforceable and is to be obeyed.

 

    Nor do I consider that anything said in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, is at variance with the above.  At page 160 Dickson J. (as he then was) stated:

 

    If the issue to be resolved in assessing the constitutionality of searches under s. 10 were in fact the governmental interest in carrying out a given search outweighed that of the individual in resisting the governmental intrusion upon his privacy, then it would be appropriate to determine the balance of the competing interests after the search had been conducted.  Such a post facto analysis would, however, be seriously at odds with the purpose of s. 8.  That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy.  That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place.  This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.  [Emphasis in original.]

 

    The post facto analysis, which Dickson J. found insufficient to safeguard individuals, related to "unjustified state intrusions".  The purpose of s. 8 is to prevent them.  We are here dealing, however, with the threshold question whether this is an unjustified state intrusion.  In my view, the character of the so‑called act of intrusion must be assessed in all its aspects, including its legal enforceability.  This is not a case of the ex post facto cure of a serious state intrusion into privacy; rather, the intrusion itself is curtailed by the requirement that its validity and extent be tested at an early stage.

 

    As appears from the above passage, the stringent test set out in Hunter v. Southam Inc., supra, was intended for unwarranted state intrusion into the privacy of individuals.  As pointed out in R. v. Simmons, [1988] 2 S.C.R. 495, departures from these standards should be rare.  By adopting a definition of seizure that is over‑inclusive, a wholesale departure from these standards will be necessary.  This is graphically illustrated by the judgment of my colleague in R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 000, in which the Hunter v. Southam Inc. standards are almost completely diluted.  Instead of a sliding scale of Hunter v. Southam Inc. standards, I prefer a more restrictive interpretation of what constitutes a seizure, reserving the application of the Hunter v. Southam Inc. standards for those state intrusions which are truly out of keeping with what we have come to expect as a routine fact of daily life in a modern state.

 

    I conclude therefore that the orders demanding production of books, papers, records and other documents does not constitute a seizure within the meaning of s. 8  of the Charter .  It was not submitted that it is a search and it clearly is not.  Accordingly neither the orders nor s. 17 of the Act which authorized them are invalid.

 

Disposition

 

    I would allow the appeal in part and declare that s. 17 of the Act is inconsistent with s. 7  of the Charter  and of no force or effect to the extent that it authorizes an order compelling that a person be examined under oath.  I would also declare the order for examination under oath of no force or effect to that extent.  Save as set out above, I would dismiss the appeal.  I would answer the constitutional question as follows:

 

1.Is section 17 of the Combines Investigation Act, R.S.C. 1970, c. C‑23, inconsistent with the provisions of ss. 7  and 8  of the Canadian Charter of Rights and Freedoms , and therefore of no force or effect?

 

Answer:Yes it is inconsistent with s. 7  of the Charter  to the extent only that it authorizes an order to be made for an examination under oath of a person.  It is not otherwise inconsistent with either s. 7  or 8  of the Charter .

 

    Success being divided on this appeal, I would order that there be no costs either in this Court or in the courts below.

 

    Appeal dismissed with costs, Lamer and Sopinka JJ. dissenting in part and Wilson J. dissenting.

 

    Solicitors for the appellants:  Tory, Tory, DesLauriers & Binnington, Toronto.

 

    Solicitors for the respondents the Director of Investigation and Research and the Attorney General of Canada:  Weir & Foulds, Toronto.

 

    Solicitor for the intervener the Attorney General for Ontario:  Richard F. Chaloner, Toronto.

 

    Solicitors for the intervener the Attorney General of Quebec:  Jean Bouchard and Gilles Laporte, Ste-Foy.

 

    Solicitor for the intervener the Attorney General for New Brunswick:  The Department of Justice and Attorney General for New Brunswick, Fredericton.

 

    Solicitor for the intervener the Attorney General for Alberta:  The Department of the Attorney General, Edmonton.