Judgments

Decision Information

Ziegler v. Hunter

Collection	Judgments
Date	1983-11-29
Report citation	[1984] 2 F.C. 608
File numbers	A-1292-83
Subjects	Competition Constitutional Law Evidence Practice

Decision Content

A-1292-83

John A. Ziegler, Maple Leaf Gardens Limited, Northstar Hockey Partnership, Le Club de Hockey Canadien Inc., Meadowlanders Inc., Nassau Sports Limited, New York Rangers Hockey Club, Philadelphia Hockey Club Inc., Pittsburgh Penguins Inc., Le Club de Hockey les Nordiques (1979) Inc., Boston Professional Hockey Association Inc., Niagara Frontier Hockey Corporation, Calgary Flames Hockey Club, Chicago Blackhawk Team Inc., Detroit Red Wings Inc., Edmonton World Hockey Enterprises Ltd., Hartford Whalers Hockey Club, California Sports, Washington Hockey Limited Partnership, 8 Hockey Ventures Inc., Northwest Sports Enter prises Limited, John Krumpe, Paul Martha, Marcel Aubut, Paul Mooney, Robert Swados, William Wirtz, Brian O'Neill, Seymour Knox, Michael Bitch, Howard Baldwin, Dr. Gerry Buss, George Gund, Robert Butera, Harold Ballard, and Barry Shenkarow (Appellants)

Lawson A. W. Hunter, Director of Investigation and Research appointed under the Combines Investigation Act and O. G. Stoner, the Chairman of the Restrictive Trade Practices Commission appointed under the Combines Investigation Act (Respondents)

Court of Appeal, Le Dain, Marceau and Huges- sen, JJ.—Montreal, October 27, 28; Ottawa, November 29, 1983.

Evidence — Subpoenas under Combines Investigation Act s. 17 requiring production of extensive documentation — S. 17 not violating Bill of Rights s. 2(d) protection against self- incrimination — Common law protection against giving of testimony abolished — S. 2(d) and Canada Evidence Act s. 5 protecting against subsequent use — Ss. 5, 2(d) not protecting in respect of compelled production of documents — Derivative evidence — Charter s. 13 providing requisite protection — Whether s. 17 order search or seizure as per Charter s. 8 — Whether seizure unreasonable — No violation of s. 8 — Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 17(1), 20(2) (as am. by S.C. 1974-75-76, c. 76, s. 8) — Canadian Bill of Rights, R.S.C. 1970, Appendix III, s. 2(d) — Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5 — Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 8, 13, 26— U.S. Const., Amends. IV, V.

Constitutional law - Charter of Rights - Search or sei zure - Subpoenas under Combines Investigation Act s. 17 requiring production of extensive documentation - Whether s. 17 order search or seizure as per Charter s. 8 - Whether seizure reasonable - No violation of s. 8 - Combines Inves tigation Act, R.S.C. 1970, c. C-23, ss. 17(1), 20(2) (as am. by S.C. 1974-75-76, c. 76, s. 8) - Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 2, 7, 8 Individual's Rights Protection Act, R.S.A. 1980, c. 1-2, ss. 21, 22, 23 - U.S. Const., Amend. IV.

Combines - Subpoenas under Combines Investigation Act s. 17 requiring production of extensive documentation - S. 17 violating neither Bill of Rights protection against self-incrimi nation nor Charter protection against unreasonable search or seizure - Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 8(b)(iii) (as am. by S.C. 1974-75-76, c. 76, s. 4), 15, 17(1), 20(2) (as am. idem, s. 8), 33 - Canadian Bill of Rights, R.S.C. 1970, Appendix III, s. 2(d) - Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5 - Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) ss. 8, 13, 26 - Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18 - U.S. Const., Amends. IV, V.

Practice - Subpoenas - Duces tecum under Combines Investigation Act s. 17 requiring production of extensive docu mentation - S. 17 not violating Bill of Rights s. 2(d) protec tion against self-incrimination - S. 2(d) and Canada Evi dence Act s. 5 not protecting in respect of compelled production of documents - Charter s. 13 providing requisite protection - Whether s. 17 order search or seizure as per Charter s. 8 - Whether seizure reasonable - No violation of s. 8 - Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 17(1), 20(2) (as am. by S.C. 1974-75-76, c. 76, s. 8) - Canadian Bill of Rights, R.S.C. 1970, Appendix III, s. 2(d) - Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5 - Canadian Charter of Rights and Freedoms, being Part I of the Constitu tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 8, 13, 26 - U.S. Const., Amends. IV, V.

The National Hockey League grouped together twenty professional hockey teams situated in Canada and the United States. Each of the appellants was either a corporation or partnership which operated a member team, or an individual associated with the League or with a particular team. The respondent Director commenced an inquiry into the possibility that a monopoly existed in relation to the production and operation of major-league professional hockey. On the Direc-

tor's application, the respondent Chairman made orders under section 17 of the Combines Investigation Act, which orders directed the individual appellants to appear for examination and, in a duces tecum provision, required them to produce extensive documentation.

The appellants applied to the Trial Division, seeking either to prohibit the respondents from acting upon the section 17 orders or, in the alternative, to quash these orders. The application was dismissed, whereupon the present appeal was instituted. The appeal focussed upon two issues: (A) whether an order for production made under section 17 violated paragraph 2(d) of the Bill of Rights; (B) whether a section 17 order for produc tion constituted an unreasonable search or seizure within the meaning of section 8 of the Charter.

Held, the appeal should be dismissed.

Per Le Dain J.: (A) There is authority to the effect that the common law privilege of a witness against self-incrimination extended to the production of documents. Paragraph 2(d) of the Canadian Bill of Rights, however, does not purport either to preserve or to guarantee the common law privilege. It contemplates that a person may be compelled to give self- incriminating evidence, and protects only against the use of such evidence in subsequent criminal proceedings. Protection of this nature existed at the time of the Bill's adoption—by virtue of section 5 of the Canada Evidence Act.

Both paragraph 2(d) and subsection 5(2) are concerned with protection of the witness against self-incrimination by testimo- E y. Subsection 5(2) has been held not to protect against self-incrimination by the compelled production of documents, and clearly it does not protect against self-incrimination by derivative evidence either. The same limitations apply to the guarantee of protection in paragraph 2(d).

The protection which paragraph 2(d) guarantees is provided by subsection 20(2) of the Combines Investigation Act. There fore section 17 does not contravene paragraph 2(d).

(B) An order in the nature of a subpoena duces tecum is neither a search nor a seizure within the meaning of section 8 of the Charter. The opinion on this point expressed in the Alberta Blue Cross Plan case is mistaken.

It has been observed that a subpoena duces tecum is not a true search or seizure within the meaning of the Fourth Amendment to the Constitution of the United States, and while the requirements that have been imposed with respect to such subpoenas in the United States have been referred to as "Fourth Amendment" limitations, there is some question as to whether that provision is their true constitutional basis. In any event, these requirements, rooted as they are in American law, should not be treated as bearing upon the constitutional validity of section 17. If requirements like them are, in some degree or other, properly applicable to the terms of specific subpoenas duces tecum, then it may be observed that the section 17 orders at issue herein do comply with the American requirements.

Per Marceau J.: (A) With the enactment of section 5 of the Canada Evidence Act, Parliament ousted the common law privilege against self-incrimination, adopting in its stead the rule that self-incriminating testimony cannot be used in subse quent criminal proceedings against the witness. The enacting of paragraph 2(d) of the Canadian Bill of Rights was not an expression of a parliamentary intention to revive the common law privilege. The purpose behind the adoption of the Bill of Rights was not to establish new rights and freedoms, but rather to enshrine those already recognized. Accordingly, the protec tion afforded by paragraph 2(d) cannot be wider than that which existed when paragraph 2(d) was enacted—i.e., the protection that was to be found in section 5 of the Canada Evidence Act.

The appellants maintain that subsection 20(2) of the Com bines Investigation Act does not provide in full measure the protection guaranteed by paragraph 2(d), inasmuch as subsec tion 20(2) affords no protection against the use of documents. They refer to the judgment of Mr. Justice Dickson in the Marcoux case, and purport to find there a recognition that the paragraph 2(d) privilege does extend beyond the limits estab lished by the Canada Evidence Act, requiring protection in the case of a production of documents. Read correctly, though, the judgment contains no such recognition. The protection given by subsection 20(2) does satisfy the demands of paragraph 2(d), and the latter provision is not infringed by the section 17 orders.

(B) The section 17 orders issued in this case are not equiva lent to a search and seizure. A search-and-seizure order is one which confers upon a public officer authority to force his way, at any time and without warning, into the home or onto the business premises of another person, and to search for and seize things which he finds there. The execution of such an order constitutes a situation completely different from that which obtains upon the service of a subpoena duces tecum. They have nothing in common with respect to intrusion into the home and upon the privacy of the individual, and any perceived need to maintain control over the issuance of subpoenas duces tecum is in no way comparable to the necessity of protecting citizens and their homes against a possible abuse of search powers.

On the other hand, in the Alberta Blue Cross Plan case, the Alberta Court of Appeal expressed the view that a forced production of documents during an administrative inquiry amounts to a seizure; and at least for the purposes of section 8 of the Charter, this view is correct. The essence of a (mere) seizure is a public authority's taking hold of a thing against the will of the person to whom it belongs. Whether the person is compelled to deliver up the thing himself is irrelevant.

Nonetheless, the subpoenas in question do not contravene section 8, because they will not result in an unreasonable seizure. This conclusion is based upon: the criteria of reason ableness elaborated in the United States; the nature of the inquiry involved; and the fact that all of the documents at issue are ones which belong to corporations.

Per Hugessen J.: (A) Paragraph 2(d) of the Canadian Bill of Rights requires only that if a witness is compelled to give self-incriminating evidence, the compulsion must be accom panied by a protection against the use of such evidence against the witness.

It is very doubtful that this paragraph 2(d) privilege applies to the production of documents. According to the judgment of Dickson J. in Marcoux, it does not so apply. The simple fact that a witness is compelled to produce documents would not seem to imply any basis in logic or policy for extending the privilege to those documents. The common law rule is that documents and other things found in the possession of an accused are admissible against him as long as they are relevant, and while it may develop that the Charter has modified this principle, the Canadian Bill of Rights has not done so. Para graph 2(d) does not entitle a person to any greater protection than is afforded by subsection 5(2) of the Canada Evidence Act, and since subsection 5(2) protects with respect to the "answer" given to a "question" it does not encompass the production of documents.

At any rate, in the case at bar it is not strictly necessary to determine the extent of the paragraph 2(d) privilege. The scope of section 13 of the Charter is at least as great as that of paragraph 2(d). Consequently, section 13 provides the protec tion which paragraph 2(d) requires, whether or not the protec tion extends to a compulsory production of documents.

(B) If, in the Alberta Blue Cross Plan case, the provincial Court of Appeal was saying that every order for production of documents in the form of a subpeona duces tecum should, for the purposes of the Charter, be regarded as a seizure, then the Court was in error. That proposition would be contrary to both American and Canadian authority. It would also do violence to the ordinary meanings of the words "search" and "seizure", each of which words connotes an intrusion into the citizen's home or place of business by another person, who looks for and removes documents or other things. No valid analogy can be drawn between the order provided for by subsection 17(1), which is a classic example of a subpoena duces tecum, and the searches and seizures envisaged by section 8.

CASES JUDICIALLY CONSIDERED

FOLLOWED:

Curr v. The Queen, [1972] S.C.R. 889; 26 D.L.R. (3d) 603.

CONSIDERED:

Marcoux et al. v. The Queen, [1976] 1 S.C.R. 763; Alberta Human Rights Commission v. Alberta Blue Cross Plan (1983), 48 A.R. 192; 1 D.L.R. (4th) 301 (C.A.); Miller et al. v. The Queen, [1977] 2 S.C.R. 680; 70 D.L.R. (3d) 324; Southam Inc. v. Dir. of Investigation & Research, [1983] 3 W.W.R. 385 (Alta. C.A.); Thom- son Newspapers Ltd. et al. v. Hunter, Director of Investi gation and Research et al. (1983), 73 C.P.R. (2d) 67 (F.C.T.D.); R. v. McKay (1971), 4 C.C.C. (2d) 45 (Man. C.A.); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946).

REFERRED TO:

R. v. Simpson et al. (1943), 79 C.C.C. 344 (B.C.C.A.); Klein v. Bell, [1955] S.C.R. 309; Tass v. The King, [1947] S.C.R. 103; A.G. Que. v. Côté (1979), 8 C.R. (3d) 171 (Que. C.A.); Stickney v. Trusz (1973), 16 C.C.C. (2d) 25 (Ont. H.C.), affirmed (1974), 28 C.R.N.S. 125 (Ont. C.A.); Regina v. Crooks (1982), 39 O.R. (2d) 193 (H.C.), affirmed (sub nom. Re Crooks and The Queen) (1982), 2 C.C.C. (3d) 57; 143 D.L.R. (3d) 601; R. v. Judge of the General Sessions of the Peace for the County of York, Ex parte Corning Glass Works Ltd., [1971] 2 O.R. 3 (C.A.); Canadian Fishing Company Limited et al. v. Smith et al., [1962] S.C.R. 294; Stevens, et al. v. Restrictive Trade Practices Commission, [1979] 2 F.C. 159 (T.D.); Rolbin v. The Queen (1982), 2 C.R.R. 166 (Que. S.C.); R. v. Brezack (1949), 96 C.C.C. 97 (Ont. C.A.); A.G. for Quebec v. Begin, [1955] S.C.R. 593; Hogan v. The Queen, [1975] 2 S.C.R. 574; D'Ivry v. World Newspaper Co. of Toronto et al. (1897), 17 P.R. 387 (Ont. C.A.); Attorney-General v. Kelly (1916), 28 D.L.R. 409 (Man. C.A.); Webster v. Solloway, Mills & Co., [1931] 1 D.L.R. 831 (Alta. C.A.); Staples v. Isaacs, [1940] 3 D.L.R. 473 (B.C.C.A.); Rio Tinto Zinc Corpo ration and Others v. Westinghouse Electric Corporation, [1978] A.C. 547 (H.L.); Rank Film Distributors Ltd v Video Information Centre, [1981] 2 All ER 76 (H.L.); Lilburn's Trial (1637), 13 How. St. Tr. 1315 (U.K. Parlt.); Thompson v. The King, [1918] A.C. 221 (H.L.); Kuruma v. The Queen, [1955] A.C. 197 (P.C.); Schmer- ber v. California, 384 U.S. 757 (1966); In re Horowitz, 482 F.2d 72 (2d Cir. 1973); F.T.C. v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977); F.T.C. v. Carter, 464 F. Supp. 633 (D.D.C. 1979); Dunham v. Ottinger, 154 N.E. 298 (N.Y.C.A. 1926).

COUNSEL:

A. M. Gans, J. L. Pelletier and J. J. Chap- man for appellants.

B. Finlay, Q.C. and S. Fréchette for respondents.

SOLICITORS:

Miller, Thomson, Sedgewick, Lewis & Healy, Toronto, and Aubut, Chabot, Quebec City, for appellants.

Deputy Attorney General of Canada for respondents.

The following are the reasons for judgment rendered in English by

LE DAIN J.: I have had the advantage of read ing the reasons for judgement of my brothers Marceau and Hugessen. I agree with them that the appeal should be dismissed.

The appellants' contention based on paragraph 2(d) of the Canadian Bill of Rights [R.S.C. 1970, Appendix III] is that section 17 of the Combines Investigation Act [R.S.C. 1970, c. C-23], under which the orders in the nature of subpoenas duces tecum were made, is rendered inoperative because, when read with subsection 20(2) of the Act [rep. and sub. S.C. 1974-75-76, c. 76, s. 8], it authorizes the Restrictive Trade Practices Commission to compel a person to give evidence without the "pro- tection against self crimination" guaranteed by paragraph 2(d), which, it is contended, includes protection against self-incrimination by the com pelled production of documents and by derivative evidence.

It is clear that subsection 20(2) of the Combines Investigation Act, which expressly provides for the degree of protection against self-incrimination that a witness is to enjoy in obeying an order made under section 17, does not provide protection against self-incrimination by the compelled pro duction of documents and by derivative evidence. It compels a witness to give evidence and to pro duce documents in obedience to such an order, but it protects him only from the use against him in subsequent criminal proceedings of any oral evi dence which he is required to give. Subsection 20(2) is as follows:

20....

(2) No person shall be excused from attending and giving evidence and producing books, papers, records or other docu ments, in obedience to the order of a member of the Commis sion, 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 for perjury in giving such evidence or a prosecution under section 122 or 124 of the Criminal Code in respect of such evidence.

The question is whether the "protection against self crimination" referred to in paragraph 2(d) of the Canadian Bill of Rights includes protection against self-incrimination by the compelled pro duction of documents and by derivative evidence. The appellants, in their contention that it does, laid particular stress on the common law privilege

of a witness against self-incrimination. Certainly, there is authority to support the contention that the . privilege, in the proceedings to which it applied, extended to the production of documents. See R. v. Simpson et al. (1943), 79 C.C.C. 344 (B.C.C.A.), and Klein v. Bell, [1955] S.C.R. 309. As support in principle for this view of the scope of the common law privilege the appellants also referred to the cases of Rio Tinto Zinc Corpora tion and Others v. Westinghouse Electric Corpo ration, [1978] A.C. 547 (H.L.) and Rank Film Distributors Ltd v Video Information Centre, [1981] 2 All ER 76 (H.L.), applying the terms of subsection 14(1) of the Civil Evidence Act 1968, 1968, c. 64 (U.K.), which was referred to as a modern statutory recognition of long-established principle, and to the application of the United States Fifth Amendment protection against self- incrimination to the enforced production of docu ments, as indicated in Schmerber v. California, 384 U.S. 757 (1966). But paragraph 2(d) of the Canadian Bill of Rights does not purport to pre serve or guarantee the common law privilege of a witness against self-incrimination, whatever its scope might have been. It contemplates that a person may be compelled to give evidence which may tend to incriminate him, so that the protec tion referred to can only be protection against the use of his evidence against him in subsequent criminal proceedings. That this is so was affirmed by Laskin J. (as he then was) in Curr v. The Queen, [1972] S.C.R. 889; 26 D.L.R. (3d) 603 where he said at page 912 S.C.R., page 623 D.L.R.: "I cannot read s. 2(d) as going any farther than to render inoperative any statutory or non- statutory rule of federal law that would compel a person to criminate himself before a court or like tribunal through the giving of evidence, witout concurrently protecting him against its use against him." At the time the Canadian Bill of Rights was adopted that kind of protection against self- incrimination was provided in the law of Canada by section 5 of the Canada Evidence Act [R.S.C. 1970, c. E-10; formerly R.S.C. 1952, c. 307], which reads as follows:

5. (1) No witness 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 proceedings at the instance of the Crown or of any person.

(2) Where with respect to any question a witness objects to answer upon the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceedings 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 such ques tion, then although the witness is by reason of this Act, or by reason of such provincial Act, compelled to answer, the answer so given shall not be used or receivable 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 such evidence.

That section removed the common law right of a witness to refuse to answer a question on the ground that his answer might tend to incriminate him and replaced it by protection against the use of his answer as evidence against him in subse quent criminal proceedings. It has often been observed that section 5 of the Canada Evidence Act abolished or replaced the common law privi lege of a witness against . self-incrimination, with out any suggestion that it did not purport to replace the whole of that privilege. See, for exam ple, Tass v. The King, [1947] S.C.R. 103, at page 105; A.G. Que. v. Côté (1979), 8 C.R. (3d) 171 (Que. C.A.) at page 175; E. Ratushny, "Is There a Right Against Self-Incrimination in Canada?" (1973), 19 McGill L.J. 1, at pages 50 ff.; E. Ratushny, Self-Incrimination in the Canadian Criminal Process, 1979, pages 78 ff.; Stickney v. Trusz (1973), 16 C.C.C. (2d) 25(Ont. H.C.) at pages 28-29, affirmed (1974), 28 C.R.N.S. 125 (Ont. C.A.). But whatever the precise effect of subsection 5(1) of the Canada Evidence Act on the scope of the common law privilege of a witness against self-incrimination, in my opinion it is the scope of the protection provided by subsection 5(2) that is contemplated by paragraph 2(d) of. the Canadian Bill of Rights. As clearly indicated by its French version ("contraindre une personne à témoigner" and "la protection contre son propre témoignage"), paragraph 2(d) is concerned with the protection of a witness against self-incrimina tion by his testimony. This is the concern of sub section 5(2) of the Canada Evidence Act, which has been held not to extend to protection against self-incrimination by the compelled production of documents: R. v. Simpson et al., supra. It also

clearly does not protect a witness against self- incrimination by derivative evidence. Cf. Regina v. Crooks (1982), 39 O.R. (2d) 193 (H.C.), at page 198, affirmed by the Ontario Court of Appeal, October 7, 1982 [sub nom. Re Crooks and The Queen (1982), 2 C.C.C. (3d) 57; 143 D.L.R. (3d) 601].

In his contention that the protection against self-incrimination guaranteed by paragraph 2(d) extended to the enforced production of documents, counsel for the appellants placed particular reli ance on the following passage in the judgment of Dickson J. in Marcoux et al. v. The Queen, [1976] 1 S.C.R. 763, at page 769:

American jurisprudence on the Fifth Amendment, which protects a person against being compelled "to be a witness against himself", and Canadian jurisprudence on the privilege against self-incrimination, have followed parallel courses, limit ing the application of the privilege to its historic reach, i.e. protection against testimonial compulsion. Such a limitation gives rise to a distinction between coerced oral or documentary disclosures which fall within the-privilege, and what has been termed "real or physical" evidence, i.e. physical evidence taken from a person without his consent, which, broadly speaking, falls outside the privilege.

The "parallel courses" in the development of the American and Canadian law on self-incrimination to which Mr. Justice Dickson referred would appear to have been chiefly concerned with the distinction between "testimonial compulsion" and "physical evidence taken from a person without his consent", which was what was in issue in that case. In my respectful opinion he did not intend to address the question whether paragraph 2(d) of the Canadian Bill of Rights guaranteed protection against self-incrimination by the enforced produc tion or documents, but was merely referring to the statement of the essential distinction with which he was concerned, as it is found in American jurisprudence.

In my opinion section 17 of the Combines Inves tigation Act is not rendered inoperative by conflict with paragraph 2(d) of the Canadian Bill of Rights because subsection 20(2) of the Act pro vides the protection against self-incrimination guaranteed by paragraph 2(d). I do not find it necessary to express an opinion on the scope of the protection against self-incrimination provided by

section 13 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] nor on the effect, if any, of this provision on paragraph 2(d) of the Canadian Bill of Rights.

The appellants' contention based on section 8 of the Canadian Charter of Rights and Freedoms is that section 17 of the Combines Investigation Act is of no force or effect because it authorizes an unreasonable search or seizure within the meaning of section 8 of the Charter. 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. I am unable, with great respect, to follow the opinion expressed on this point by the Alberta Court of Appeal in Alberta Human Rights Commission v. Alberta Blue Cross Plan (1983), 48 A.R. 192; 1 D.L.R. (4th) 301. It has been observed in the United States that a subpo ena duces tecum is not a true search or seizure within the meaning of the Fourth Amendment, and while the requirements of authorized purpose of investigation, relevance and adequate specifica tion applied in the judicial enforcement of such subpoenas are referred to as Fourth Amendment limitations on the subpoena power, the question has been raised as to whether the Fourth Amend ment or the due process clause is the true constitu tional basis of these requirements. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946); In re Horowitz 482 F.2d 72 (2d Cir. 1973); and W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 1978, vol. 2, section 4.13 generally and page 209, note 104, in particular. Because of their very special foundation in American constitutional provisions and jurispru dence I would hesitate to apply these requirements as constitutional requirements to an administrative subpoena duces tecum in Canada. I would certain ly not apply them to the question of the validity or operative effect of section 17 of the Combines Investigation Act, which is what is raised by the appellants' contention based on section 8 of the Charter. To the extent that requirements like them are properly applicable to the terms of a particular subpoena duces tecum, I am of the opinion that the orders made under section 17 in this case meet these requirements, as they have been applied to administrative subpoenas duces tecum in the

American cases. See, for example, F.T.C. v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977); F.T.C. v. Carter, 464 F. Supp. 633 (D.D.C. 1979).

For these reasons I would dismiss the appeal with costs.

* * *

The following are the reasons for judgment rendered in English by

MARCEAU J.: The appellants are all connected with the National Hockey League (the "League"), an unincorporated association grouping twenty professional hockey teams situated in Canada and in the United States, being either officers, direc tors and employees of the League or corporations and partnerships operating the member teams of the League. During the month of June 1983, the individual appellants were served with orders issued under the authority of the Combines Inves tigation Act, R.S.C. 1970, c. C-23 (hereinafter the "Act"), requiring them to attend before a member of the Restrictive Trade Practices Commission, on July 12, 1983, to give evidence under oath as to any matters relating to the production and opera tion of major league professional hockey and the possible existence therein of a monopolistic situa tion prohibited by section 33 of the Act. The summons contained the following duces tecum provision:

You are further required to produce at the time and place first above mentioned:

1. All notes, letters, opinions, financial statements, memoranda, press releases, studies, working papers, analyses, and any other documentation which is in your possession or under your con trol which in any way relates to a transfer, sale or termination of membership, ownership or location of any and all franchises of the National Hockey League between January 1, 1970, and the present and without restricting the foregoing the proposed sale and transfer of the St. Louis Blues from Ralston Purina Company to Coliseum Holdings Ltd.

2. All notes, letters, opinions, financial statements, memoranda, press releases, studies, working papers, analyses, and any other documentation which is in your possession or under your con trol which in any way relates to applications for any and all franchises between January 1, 1970 and the present.

3. All notes, letters, opinions, financial statements, memoranda, press releases, studies, and any other documentation which is in your possession or under your control which was referred to in any fashion by members of the Advisory Committee of the National Hockey League in the performance of their duties in examining the proposed sale and transfer of the St. Louis Blues from Ralston Purina Company to Coliseum Holdings Ltd.

4. All financial statements for the last three fiscal years for the franchise which you represent.

The orders, signed by the respondent Stoner, the Chairman of the Restrictive Trade Practices Com mission, had been made under the authority of section 17 of the Act, in connection with an inqui ry intitiated by the respondent Hunter, the Direc tor of Investigation and Research appointed under the Act, shortly after the refusal by the Governors of the League to allow the transfer of the St. Louis Blues franchise to Saskatoon.'

On being served with the orders, the individual appellants, all businessmen residing at various locations throughout Canada and the United States, took the view that they were being subject ed to excessive inconvenience in being required to

' The provisions of the Act immediately concerned read as follows [subparagraph 8(b)(iii) rep. and sub. S.C. 1974-75-76, c. 76, s. 4]:

8. The Director shall

(b) whenever he has reason to believe that

(iii) an offence under Part V or section 46.1 has been or is about to be committed, or

cause an inquiry to be made into all such matters as he considers necessary to inquire into with the view of deter mining the facts.

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.

search for and produce thousands of documents and that an unacceptable intrusion upon their otherwise confidential business dealings was being attempted. They decided to submit their right to the Court.

An application was therefore filed in the Trial Division of this Court seeking an order to prohibit the respondents from acting upon the orders of the Chairman and, in the alternative, by way of cer- tiorari, to quash such orders. When this applica tion was rejected on August 11, 1983 by the Associate Chief Justice [Ziegler et al. v. Hunter, Director of Investigation and Research et al. (1983), 75 C.P.R. (2d) 222], the appellants launched the present appeal to this Court.

The appellants contend that the Trial Judge erred in not holding that the aforesaid orders, issued pursuant to section 17 of the Act, con travened the provisions of paragraph 2(d) of the Canadian Bill of Rights and sections 2, 7 and 8 of [the Canadian Charter of Rights and Freedoms, being Part I of] the Constitution Act, 1982, as a result of which they were of no force or effect. Their contention is based on two propositions: first, that all orders made pursuant to section 17 of the Act are contrary to paragraph 2(d) of the Canadi- an Bill of Rights because they inevitably offend against the privilege against self-crimination; second, that the orders as issued here are contrary to sections 2, 7 and 8 of the Canadian Charter of Rights and Freedoms in that they constitute an intrusion upon the appellants' privacy and an unreasonable search and seizure. The two proposi tions, of course, even if they lead to the same conclusion, relate to two completely distinct grounds of attack. They can only be examined separately.

The appellants support their proposition that all orders made under section 17 offend against the privilege against self-crimination guaranteed by the Bill of Rights with a reasoning they say is novel in the sense that it has not yet been submit ted to a Canadian court. I suppose it might be more satisfying, because of that, if I take the time

to summarize it as it was presented by counsel and as I understood it.

The rule against self-crimination, as articulated in the maxim nemo tenetur seipsum accusare or prodere, is of long standing in the common law, counsel first reminds us. It originated as a reaction to early abuses of inquisitional procedures and from the leading case of Lilburn's Trial (1637), 13 How. St. Tr. 1315 (U.K.)—where Parliament held that the Star Chamber had no right to compel Lilburn, then charged with certain offences, to submit to interrogation—it developed rapidly and soon became of such great significance in the minds of the common law world people that after the American Revolution, it was made the subject of the Fifth Amendment to the United States Constitution. 2 The scope of the rule against self- crimination at common law, counsel continues, has been clearly established, in the course of the years, by the English and American courts: it is now accepted that the rule extends beyond answers that could directly criminate the witness, and covers questions that might be used as a step towards obtaining evidence and even matters that could only form a link in the chain of proof; and it is often considered that the rule must apply not only to oral questioning but also to the production of documents of a criminating nature in response to an order of production.

This common law rule against self-crimination, counsel goes on, is part of our Canadian law since

2 The Amendment reads thus:

Amendment V [1791]

No person shall be held to answer for a capital, or other wise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Incidentally, the history of the rule is dealt with extensively in Wigmore on Evidence, Vol. 8 (McNaughton rev. 1961), paragraphs 2250-2251.

the adoption of the Canadian Bill of Rights, which provides in paragraph 2(d) as follows:

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 constitu tional safeguards;

This is a provision which accurately reflects the privilege against self-crimination as a Canadian derivative of the English common law, and the provision no doubt applies to the Restrictive Trade Practices Commission as well as to the Director investigating an alleged offence under Part V of the Act: adequate protection against self-crimina- tion must therefore be given to any person, individual or corporation suspected of committing or participating in a specific criminal offence, summoned to testify before the Director and to produce documents, books, papers and records. "Is such protection adequately provided by the Act?" counsel asks. Certainly not, he argues. It is true that provisions similar to those enacted by subsec tion 5(2) of the Canada Evidence Act are found in subsection 20(2), which says:

20....

But this subsection does not assure the witness an immunity coextensive with the privilege and does not give him the "concurrent" protection contemplated by Laskin J. (as he then was) in his reasons for judgment in Curr v. The Queen, [1972] S.C.R. 889; 26 D.L.R. (3d) 603, at page

619. Indeed, the subsection affords no protection whatever against the use by the Attorney General of Canada of the documents produced as well as the transcript of the testimony given, in deciding whether or not a prosecution should be launched; nor against the use of the documents, or of the derivative evidence flowing from the testimony given, in criminal proceedings thereafter instituted against the witness. 3

So counsel presents the conclusion as inevitable: section 17 of the Act is inoperative in that it purports to compel witnesses to testify before fed eral authorities while denying them the protection against self-crimination enshrined in paragraph 2(d) of the Canadian Bill of Rights.

I do not intend to review each and every one of the several statements made in that reasoning in order to express my agreement or disagreement with respect thereto, although I may say that I have very serious doubt as to the validity of some of them. For instance, I question the statement that at common law the privilege extends to corpo rations and corporate documents (see Wigmore, op. cit., paragraph 2259; see the reasons of Arnup J.A. in R. v. Judge of the General Sessions of the Peace for the County of York, Ex parte Corning Glass Works Ltd., [1971] 2 O.R. 3 (C.A.)); and I am not prepared to accept readily the proposition that the privilege, with the extension givent to it, applies unreservedly outside court proceedings in a mere fact-finding procedure like the one here in question (see Phipson on Evidence, 11th ed. (1970), pages 615 and seq.; and as to the character of the Director's inquiry, see Canadian Fishing Company Limited et al. v. Smith et al., [1962] S.C.R. 294).

3 Section 15 of the Act reads thus:

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.

If I consider it unnecessary to address these particular points any further, it is for the simple reason that I disagree with the very allegation on which the appellants' whole reasoning hinges, namely that the common law privilege against self-crimination with whatever extension it is given in England is part of the Canadian law.

It is acknowledged by all authorities that, in 1893, Canada departed from the general common law doctrine of non-crimination and substituted, in proceedings within federal jurisdiction, a protec tion only against use of incriminating testimony in subsequent criminal proceedings against the wit ness. This resulted from the enactment by Parlia ment of section 5 of the Canada Evidence Act, R.S.C. 1970, c. E-10 4 , which was meant to sub sume the effects of the rule as it was then under stood. From that year on, the right against self- crimination in proceedings within the federal sphere became a strictly statutory right confined within the terms of section 5 of the Canada Evi dence Act and of corollary sections subsequently incorporated in particular statutes. (See the com ments of Professor Ratushny in his long study entitled "Is There A Right Against Self-Incrimi nation in Canada?" (1973), 19 McGill L.J. 1, as well as those in his book, Self-Incrimination, at pages 52 and seq.; see among several others the interesting decision of R. v. Simpson et al. (1943),

^ It reads as follows:

(2) Where with respect to any question a witness objects to answer upon the ground that his answer may tend to crimi- nate 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 legisla ture, the witness would therefore have been excused from answering such question, then although the witness is by reason of this Act, or by reason of such provincial Act, compelled to answer, the answer so given shall not be used or receivable 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 such evidence.

79 C.C.C. 344 (B.C.C.A.).) Counsel for the appel lant is, of course, well aware of that but he sug gests, as explained above, that by enacting para graph 2(d) of the Canadian Bill of Rights in 1960, Parliament expressed its will to revert to the common law privilege, thereby putting an end to the period during which the effects of the privilege in Canada had been limited by statute.

That suggestion is, to me, simply unacceptable. The very reading of the Canadian Bill of Rights, including its preamble, makes it clear that the purpose of Parliament in enacting it was not to adopt new fundamental rights and freedoms derived from the principles accepted in our society; it was to enshrine those rights and freedoms already recognized and give them the prominence they deserve. In Miller et al. v. The Queen, [1977] 2 S.C.R. 680; 70 D.L.R. (3d) 324, Mr. Justice Ritchie speaking for himself and four other mem bers of the Court states as follows (at pages 703- 704 S.C.R., page 343 D.L.R.):

I subscribe to the analysis of the meaning and effect of ss. 1 and 2 of the Bill of Rights to be found in the reasons for judgment of Mr. Justice Martland, speaking for the majority of this Court in The Queen v. Burnshine ([1975] 1 S.C.R. 693), at p. 705 where, after noting that the Bill of Rights "by its express wording .... declared and continued existing rights and freedoms", he went on to say:

It was those existing rights and freedoms which were not to be infringed by any federal statute. Section 2 did not create new rights. Its purpose was to prevent infringement of exist ing rights. It did particularize in paras. (a) to (g), certain rights which were a part of the rights declared in s. 1 ....

The "protection against self crimination" con templated by paragraph 2(d) of the Canadian Bill of Rights cannot be wider and more extensive than that considered, in 1960, as being adequate, that is to say the protection afforded by the Evidence Act. Counsel for the appellant referred to a passage in the reasons of Mr. Justice Dickson, delivering the judgment of a nine-man Court, in the case of Marcoux et al. v. The Queen, [1976] 1 S.C.R. 763, in which the learned Justice (at page 769) speaks of the parallel courses followed by the Canadian jurisprudence and the American juris prudence in relation to the privilege and even makes allusion to the possibility of documentary

disclosure being covered by the rule. 5 Counsel would see in that passage a recognition that the scope of the privilege goes beyond the limits estab lished by the Canadian Evidence Act. I think, with respect, that counsel misread the passage referred to. The parallel with the American jurisprudence is made to explain that both have followed a course "limiting the application of the privilege to its historic reach, i.e. protection against testimoni al compulsion"; and the reference to "coerced ... documentary disclosures" appears to be referring to forms of testimony reduced to writing, such as interrogatories or affidavits. Indeed, in the very first paragraph of the part of his reasons dealing with the scope of the privilege in which is found the passage referred to by counsel, the learned Justice had made a general and unequivocal state ment as follows (at page 768):

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.

and in the following paragraph, after referring to previous cases, he quoted with approval [at page 768] the statement of Laskin J., as he then was, in Curr v. The Queen (already above referred to), where he said (at page 912 S.C.R., page 623 D.L.R.):

... I cannot read s. 2(d) as going any farther than to render inoperative any statutory or non-statutory rule of federal law that would compel a person to criminate himself before a court or like tribunal through the giving of evidence, without concur rently protecting him against its use against him.

The first proposition advanced by the appellants is to be rejected. The orders issued pursuant to section 17 of the Act do not offend against para-

s The passage reads thus:

American jurisprudence on the Fifth Amendment, which protects a person against being compelled "to be a witness against himself", and Canadian jurisprudence on the privi lege against self-incrimination, have followed parallel courses, limiting the application of privilege to its historic reach, i.e. protection against testimonial compulsion. Such a limitation gives rise to a distinction between coerced oral or documentary disclosures which fall within the privilege, and what has been termed "real or physical" evidence, i.e. physi cal evidence taken from a person without his consent, which, broadly speaking, falls outside the privilege.

graph 2(d) of the Bill of Rights. The protection given to the witness by subsection 20(2) of the Act is protection "concurrent" with the privilege against self-crimination as it is contemplated and defined by Canadian law. (Compare Stevens, et al. v. Restrictive Trade Practices Commission, [1979] 2 F.C. 159 (T.D.).)

The appellants' second proposition, namely that the orders as issued constitute an encroachment on their constitutional rights to privacy and security against unreasonable search and seizure, is formu lated as if three different sections of the Canadian Charter of Rights and Freedoms would come into play: sections 2, 7 and 8, which read as follows:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(d) freedom of association.

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.

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

The appellants, however, did not explain why sec tions 2 and 7 were specifically referred to nor do I see how these sections could support the proposi tion independently of section 8. Indeed, counsel's . argument was essentially that the orders as issued, because of their width and burdensome nature, were equivalent to a search and seizure of a type prohibited by section 8 of the Charter if the princi ples set ôut by the Alberta Court of Appeal in Southam Inc. v. Dir. of Investigation & Research, [1983] 3 W.W.R. 385, and later by the Trial Division of this Court, in Thomson Newspapers Ltd. et al. v. Hunter, Director of Investigation and Research et al. (judgment by Collier J. dated July 6, 1983, not yet reported [now reported at 73 C.P.R. (2d) 67]) are to be applied. In fact, I think the issue raised by the proposition is more complex but, in any event, the only section of the Charter properly involved is section 8.

The appellants' proposition that the orders vio late their constitutional rights under section 8 of the Charter, requires, in my view, that two ques tions be examined.

The first, strictly suggested by counsel's submis sion, is whether the orders, as issued, can be seen as the equivalent of a search-and-seizure proce dure, so as to create a situation the admissibility of which under section 8 must be verified according to the guidelines defined in the Southam and Hunter cases. I do not think that a proper reading of the reasons given by Mr. Justice Prowse in the Alberta Court of Appeal and by Mr. Justice Col lier in the Trial Division can really leave this issue open. 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 subpoenas duces tecum.

There is, however, another issue, raised by the appellants' proposition, that cannot be so easily disposed of. This issue is whether the orders here attacked should not be seen as the equivalent of a seizure and an unreasonable one within the mean ing of section 8 of the Charter. The issue arises because section 8 not only prohibits an unreason able "search and seizure" but also an unreasonable "mere seizure", the two words being connected in

the text by the disjunctive particle "or", not "and".

In their very recent decision in the case of Alberta Human Rights Commission v. Alberta Blue Cross Plan (a decision dated September 8, 1983, not yet reported [now reported at 48 A.R 192; 1 D.L.R. (4th) 301]), five judges of the Court of Appeal of Alberta did not hesitate [at page 195 A.R., page 307 D.L.R.] to "... accept the view that a forced production of documents in a civil proceedings [sic], or during an administrative inquiry, is a seizure." Neither do I, at least for the purpose of section 8 of the Charter. It is the taking hold by a public authority of a thing belonging to a person against that person's will, that constitutes the essence of a seizure and the fact that the person is or is not forced to hand over the thing himself appears to me irrelevant. So the only real difficulty raised by the issue is whether the seizure that will necessarily follow the execution of the orders is reasonable within the meaning of the Charter.

The provisions of section 8 of the Charter corre spond to those of the Fourth Amendment of the United States Constitution. 6 The position of the United States Supreme Court with regard to sub poenas issued by bodies exercising investigative powers should be directly on point and of incompa rable value as a guide. W. R. LaFave in his treatise on the Fourth Amendment, Search and Seizure (1978), states in chapter 4 (pages 192- 193) as follows:

The leading case on the Fourth Amendment limitations on the subpoena power is Oklahoma Press Publishing Co. v. Walling, (327 U.S. 186 (1946)), which lower courts have relied upon as establishing the standards which govern subpoenas issued by administrative agencies, grand juries, prosecutors, and legislative committees. In Walling, the Federal Wage and Hour Administrator subpoenaed the business records of Oklahoma Press in order to determine whether the publisher was subject to the minimum wage requirements of the Fair

6 Which reads as follows:

Amendment IV [1791]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirma tion, and particularly describing the place to be searched, and the persons or things to be seized.

Labor Standards Act and whether the publisher was violating the Act. The Court, recognizing the confusion in the case law as to the applicability of the Fourth Amendment, stated that compliance with a subpoena presented no question of an actual search or seizure, and that the Fourth Amendment was appli cable, if at all, only by analogy because the subpoena merely involved a "so-called `figurative' or `constructive' search." Consequently, the Court framed the issue as one of "balancing the public interest against private security" and held that the "gist of the protection is in the requirement that the disclosure sought shall not be unreasonable." Elaborating on the reason ableness, the Court set out three guidelines. First, no specific crime need be charged; "it is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to demand." Second, because no specific crime need be alleged, probable cause to suspect the commission of a crime is unneces sary. Instead, a subpoena is valid if "the documents sought are relevant to the inquiry." Third and finally, the requirement of the Fourth Amendment warrant clause of a particular descrip tion of the person or items to be seized requires only that subpoenas contain "a specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry." Although the Court specified these three relevant areas of inquiry to determine the validity of a subpo ena under the Fourth Amendment, the Court also cautioned that the judicial inquiry should be fact-sensitive: "Necessarily ... this cannot be reduced to formula; for relevancy and adequacy or excess in the breadth of a subpoena are matters variable in relation to the nature, purposes and scope of the inquiry." Nevertheless, the three Walling standards, which the Court has continued to cite with approval, provide a framework for analyzing the scope that the courts subsequently have given to the Fourth Amendment's protection against compelled pro duction of papers.

I confess having been at first somewhat dis mayed at the number of documents involved, many thousands, but after considering some interesting American cases referred to by counsel for the respondents, notably F.T.C. v. Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977), and F.T.C. v. Carter, 464 F. Supp. 633 (D.D.C. 1979), I have come to understand that the number of documents had to be in direct relation to the nature and extent of the inquiry being carried out. Moreover, we were told, during the hearing, that all of the documents sought were corporate documents, i.e. documents belonging to corporations, not to individuals. Applying the principles set forth by the American jurisprudence, which I consider altogether reason able, and considering the nature of the inquiry involved as well as the fact that the documents are

corporate documents, I do not think that the sub poenas duces tecum here in question can be said to be unreasonable and in breach of section 8 of the Charter.

The second proposition advanced by the appel lants is therefore, in my view, as unacceptable as the first one. The impugned orders do not infringe upon their constitutional rights any more than they would be prohibited by paragraph 2(d) of the Canadian Bill of Rights.

I would therefore deny the appeal.

* * *

The following are the reasons for judgment rendered in English by

HUGESSEN J.: This is an appeal against an order of Jerome A.C.J., dated August 11, 1983 (reasons filed August 9, 1983) [75 C.P.R. (2d) 222], dismissing an application brought by the appellants for prohibition and certiorari pursuant to section 18 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10].

The appellants are all intimately connected with the National Hockey League, being either mem bers of the League or officers, directors or employees of members or of the League itself.

The respondent Hunter is the Director of Inves tigation and Research under the Combines Inves tigation Act, R.S.C. 1970, c. C-23, and the respondent Stoner is the Chairman of the Restric tive Trade Practices Commission created under that Act.

Pursuant to subparagraph 8(b)(iii) of the Act [enacted by S.C. 1974-75-76, c. 76, section 4], the Director has started an enquiry into a possible offence against section 33 of the Act in the form of a monopoly relating to the production and opera tion of major league professional hockey. On the Director's application, the Chairman has issued subpoenas, pursuant to section 17 of the Act, directed to each of the individual appellants, requiring them to appear and give evidence before a member of the Commission. Such subpoenas are

accompanied by a duces tecum in the following terms:

You are further required to produce at the time and place first above mentioned:

3. All notes, letters, opinions, financial statements, memoranda, press releases, studies and any other documentation which is in your possession or under your control which was referred to in any fashion by members of the Advisory Committee of the National Hockey League in the performance of their duties in examining the proposed sale and transfer of the St. Louis Blues from Ralston Purina Company to Coliseum Holdings Ltd.

4. All financial statements for the last three fiscal years for the franchise which you represent.

Both before the Trial Division and again in appeal, the appellants attacked these subpoenas upon two quite distinct constitutional grounds, the first being founded in section 8 of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982, Schedule B [Canada Act 1982], and the second in paragraph 2(d) of the Canadian Bill of Rights, R.S.C. 1970, Appendix III. (It appears that the appellants have also attacked the sub poenas before the Commission on grounds relating to their scope, relevance, etc., but those grounds are not directly in issue on the present appeal.)

Charter—Section 8

Section 8 of the Charter provides that

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

At first blush, it is difficult to see that this provision has any relevance whatever to the facts of this case. We are dealing with a subpoena duces tecum and not with a search warrant or a writ of

seizure. As stated by the learned Trial Judge [at page 226]

... the issue before me is not search and seizure but the authority to bring persons or documents before the commission by way of subpoena. There is no uninvited entry upon the premises of any citizen and there is no forcible seizure of property.

For us to give effect to the appellants' argument on this point would require us to find that the subpoena duces tecum is the equivalent of a search or a seizure. In this regard, we were asked to follow the very decision of the Alberta Court of Appeal in Alberta Human Rights Commission v. Alberta Blue Cross Plan (unreported, Appeal No. 14904, released September 8, 1983 [now reported at 48 A.R. 192; 1 D.L.R. (4th) 301]).

I confess that this decision gives me great dif ficulty, not the least because of the high regard which is due to the unanimous five-judge bench which rendered it. On the question which concerns us here, the totality of what the Court had to say is contained in the following sentence [at page 195 A.R., page 307 D.L.R.]:

We accept the view that a forced production of documents in a civil proceedings [sic], or during an administrative inquiry, is a seizure.

Taken at face value this statement, unsupported by either reasoning or authority, is unacceptable. It appears to be contrary to the great weight of American jurisprudence (see, for example, Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946); Dunham v. Ottinger, 154 N.E. 298 (N.Y.C.A. 1926)). Such Canadian authority as we have been referred to is to the same effect (e.g. Rolbin v. the Queen (1982), 2 C.R.R. 166 (Que. S.C.)). The statement is also contrary to the ordinary and accepted meanings normally given to the words "search" and "seizure". Both of these words 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 effect ed 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 pur poses. 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.

In fairness to the Alberta Court, their statement must be read in the context of their decision. They were dealing with an application, by the Human Rights Commission, to obtain documents required in the course of an enquiry into an alleged case of discrimination. The applicable statutory provisions now appear as sections 21 to 23 of the Individual's Rights Protection Act, R.S.A. 1980, chapter I-2:

21 A person investigating a complaint under section 20 may do any or all of the following:

(a) enter on the land or premises of a person, other than a room or place actually used as a dwelling, at any reasonable time and examine them;

(b) demand the production for examination of employment applications, payrolls, records, documents, writings and papers that are or may be relevant to the investigation of the complaint;

(c) on giving a receipt for them, remove any of the things referred to in clause (b) for the purpose of making copies or extracts of them.

22 (1) A person investigating a complaint under section 20 may enter and examine a room or place actually used as a dwelling only if

(a) the owner or person in possession of it gives his consent to the entry and examination, or

(b) the entry and examination is authorized by an order of a judge of the Court of Queen's Bench under subsection (3)

(2) If the person investigating a complaint under section 20

(a) cannot obtain consent to enter and examine or, having received consent, is obstructed or interfered with, or

(b) is refused entry to land or premises other than a room or place actually used as a dwelling,

he may apply to a judge of the Court of Queen's Bench by notice of motion for an order under subsection (3).

(3) If on application under subsection (2) the judge is satisfied that there are reasonable and probable grounds for believing that access to the room or place actually used as a dwelling or to the land or premises is necessary for the purposes of the investigation, he may make an order

(a) authorizing the entry and examination, or

(b) prohibiting any person from obstructing or interfering with the entry and examination,

or both.

23 If a person on whom a demand under section 21(b) to produce anything is made refuses or fails

(a) to comply with the demand, or

(b) to permit removal of the thing under section 21(c),

the person investigating the complaint may apply to a judge of the Court of Queen's Bench by notice of motion and the judge may make any order he considers necessary to enforce compli ance with section 21(b) or (c).

While the Alberta Court was dealing with an application under section 23 to enforce compliance with a demand for production of documents under section 21(b), the total investigative scheme envisaged by the quoted sections goes much fur ther and provides that the same proceedings may give rise to orders for forced entry and search. That being so, it is perhaps understandable that the Court considered the scheme as a whole to be subject to the restraints of section 8 of the Charter.

If, on the other hand, it was the intention of the Alberta Court to declare that every order for production of documents by way of subpoena duce tecum was to be treated as a seizure for the purposes of the Charter, I must, with respect, disagree.

In the present case, the relevant statutory provi sion is subsection 17(1) of the Combines Investi gation Act. That subsection provides in classic terms for the obtaining of a subpoena duces tecum, which it describes as an "order" for the "production of books, papers, records or other documents".

For the reasons stated, I cannot see any valid analogy between such an order and the searches and seizures envisaged in section 8 of the Charter and I would give no effect to this branch of the appellants' argument.

Bills of Rights—Paragraph 2(d)

The applicable provision of the Bill of Rights reads as follows:

2.... 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 ... protection against self crimination ... .

In order to succeed under this branch of their argument, appellants must, of course, demonstrate that they are not protected against self-incrimina tion by any other statutory or constitutional provi sion. The Bill of Rights does not contain a prohibi tion against compelling a person to give incriminating evidence, but only requires that if there is such compulsion it shall be accompanied by a protection against the use of such evidence against the person giving it.

Central to the appellants' submission on this point is the fact that they are required by the subpoenas to produce documents. No statute, the argument runs, grants protection against the use of documents to incriminate the witness producing them and, therefore, the compulsion to produce them is in violation of paragraph 2(d).

In my opinion, the argument fails on two counts. In the first place, I have grave doubts as to wheth er the privilege afforded by paragraph 2(d) applies to documents at all. In the second place, I am satisfied that whatever may be envisaged by para graph 2(d) is protected by section 13 of the Chart er of Rights.

Any examination of the scope of paragraph 2(d) must start with the judgment of Laskin J., as he then was, speaking for the majority of the Court in Curr v. The Queen, [1972] S.C.R. 889; 26 D.L.R. (3d) 603. In the course of his judgment [at pages 906-907 S.C.R., page 619 D.L.R.], Laskin J. expresses himself as being in general agreement with what had been said by Freedman C.J.M. (speaking for a court composed of himself, Monnin and Dickson J.J.A. (as they then were)), in R. v. McKay (1971), 4 C.C.C. (2d) 45 (Man. C.A.). Although Freedman C.J.M. interpreted the words "to give evidence" in paragraph 2(d) as meaning "going through the process of testifying" (at page 49), Laskin J. expressly left that question open as appears from the following passage:

(at page 912 S.C.R., page 623 D.L.R.).

The question of the scope of paragraph 2(d) came again before the Supreme Court some three years later, in the case of Marcoux et al v. The Queen, [1976] 1 S.C.R. 763. The judgment of the Court was given by Dickson J., who said, at page 768:

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. [Emphasis added.]

and, again, at page 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.]

If the matter had ended here, there would appear to be little room for doubt that the privi lege enshrined in paragraph 2(d) does not extend to the production of documents. Dickson J., how ever, went on to say, in the next following para graph [at page 769]:

American jurisprudence on the Fifth Amendment, which protects a person against being compelled "to be a witness against himself', and Canadian jurisprudence on the privilege against self-incrimination, have followed parallel courses, limit ing the application of the privilege to its historic reach, i.e. protection against testimonial compulsion. Such a limitation gives rise to a distinction between coerced oral or documentary disclosures which fall within the privilege, and what has been termed "real or physical" evidence, i.e. physical evidence taken from a person without his consent, which, broadly speaking, falls outside the privilege. [Emphasis added.]

While, in my opinion, the better view is that, in his use of the term "coerced documentary disclo sures", Dickson J. was simply referring to forms of testimony which are documentary in nature (e.g. responses to written interrogatories, affidavits, and the like), the appellants understandably argue that it was his intention to extend the privilege to the whole field of compelled production of documents.

I cannot agree. Indeed, it is difficult to think of any rational or policy basis why the privilege against self-incrimination should ever be held to apply to documents simply because a witness is compelled to produce them. I have always under stood the law to be that documents and things found in the possession of an accused were admis sible against him on the sole condition of their

being shown to be relevant (Thompson v. The King, [1918] A.C. 221 (H.L.)). Such things could be seized from him even without warrant at the time of his arrest (R. v. Brezack (1949), 96 C.C.C. 97 (Ont. C.A.), and authorities there cited). And, in any event, the law provides that even an illegal seizure shall not act as a bar to admissibility of relevant evidence (Kuruma v. The Queen, [1955] A.C. 197 (P.C.); A.G. for Quebec v. Begin, [1955] S.C.R. 593). While it may be that the coming into force of the Charter will be found to have modified the rigour of some of these rules, we are here dealing with the interpretation of the Bill of Rights which, as I read the majority decision in Hogan v. The Queen, [1975] 2 S.C.R. 574, does not have any effect on the common law rule of admissibility of relevant evidence.

The rationale behind the privilege against self- incrimination is to prevent persons being ques tioned in inquisitorial proceedings and then prose cuted as a result of their answers. It is a logical counterpart to our rules relating to admissibility of confessions. The purpose of the privilege is surely not to prevent witnesses from being obliged to produce what could be taken from them by force in any event. An accused person cannot be forced to testify in his own case and, therefore, is entitled to be protected against the consequences of testify ing in someone else's; he has no protection against documents or things found in his possession being used against him and, therefore, has no right to refuse to produce them, when required.

It is true that a number of cases have held that, in the course of discovery proceedings in a civil action, the production of documents will not be ordered if it is shown that they are of a nature to incriminate the party giving discovery (see D'Ivry v. World Newspaper Co. of Toronto et al. (1897), 17 P.R. 387 (Ont. C.A.); Attorney-General v. Kelly (1916), 28 D.L.R. 409 (Man. C.A.); Web- ster v. Solloway, Mills & Co., [1931] 1 D.L.R. 831 (Alta. C.A.); Staples v. Isaacs, [1940] 3 D.L.R. 473 (B.C.C.A.)). The cases, however, are not unanimous on the point (see Stickney v. Trusz (1973), 16 C.C.C. (2d) 25 (Ont. H.C.), affirmed

(1974), 28 C.R.N.S. 125 (Ont. C.A.)) and, for the

reasons stated, I have difficulty in understanding the rationale for extending the privilege to documents.

I would conclude this aspect of the question by saying that I have been greatly helped by, and am in general agreement with, the very useful discus sion by Professor Ratushny in his book, Self- Incrimination in the Canadian Criminal Process (Carswell, 1979). As he says:

It is clear that the privilege against self-incrimination as it exists in Canada today is an extremely narrow concept. It simply describes two specific procedural and evidentiary rules: the non-compellability of the accused as a witness at his own trial and the section 5(2) protection of a witness not to have testimony used in future proceedings. There is no general principle which can be invoked to achieve a specific result in a particular case.

(at page 92).

As to the self-incrimination provision of para graph 2(d) of the Bill of Rights, it

... extends no further than to the protection embodied in section 5(2) of the Canada Evidence Act.

(at page 91).

Since the latter subsection specifically applies to the "answer" given to a "question", it does not extend to the production of documents (R. v. Simpson et al. (1943), 79 C.C.C. 344 (B.C.C.A.)).

Be all that as it may, however, it is not in my view strictly necessary for the purposes of the present appeal that we determine the precise extent of the privilege contained in paragraph 2(d). Whatever that privilege may be, I am con vinced that it has been entirely subsumed by the provisions found in section 13 of the Charter of Rights, which accord that very protection which is made prerequisite of compellability under para graph 2(d).

That this is so appears clearly from a compari son of the two dispositions. In the English text, the protection granted by paragraph 2(d) is against the compulsion "to give evidence if ... denied .. . protection against self crimination...." Section 13

of the Charter grants to anyone "who testifies .. . the right not to have any incriminating evidence so given used to incriminate that witness ...." While one text employs the active and the other the passive voice, the protected activity is, in each case, the giving of evidence.

A glance at the French text makes the concord ance between the two provisions even clearer. Paragraph 2(d) denies to officialdom the right to "contraindre une personne à témoigner si on lui refuse ... la protection contre son propre témoignage...."

Section 13, in its turn, gives to everyone the "droit à ce qu'aucun témoignage incriminant qu'il donne ne soit utilisé pour l'incriminer. . . ."

In each case, what is protected is the use against a witness of his own "témoignage".

I would add that I do not see section 26 of the Charter as a bar to this interpretation. That sec tion simply commands that the Charter not be construed so as to deny the existence of other rights. The right given by paragraph 2(d) is condi tional; section 13 does not deny that right but rather confirms it and makes it absolute.

I conclude therefore that, whether or not para graph 2(d) of the Bill of Rights extends to cover the case of a witness who is forced to produce incriminating documents pursuant to a subpoena duces tecum, the reach of section 13 of the Chart er is at least as great and therefore grants to such witness the "protection against self crimination" required by paragraph 2(d).

From the foregoing, it appears that both the points raised by appellants were, in my opinion, properly rejected by the Trial Judge. It follows that I would dismiss the appeal, with costs.

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