T-2748-85
Stelco Inc., Ramsay McDonald, Brian Arthur,
Jean Menard, Claude Veronneau, Douglas Wood-
ward and Reginald Clayton (Plaintiffs)
v.
Attorney General of Canada, Restrictive Trade
Practices Commission, Richard B. Holden and
Michael P. O'Farrell, Director of Investigation
and Research (Defendants)
INDEXED AS: STELCO INC. v. CANADA (ATTORNEY GENERAL)
Trial Division, Jerome A.C.J.—Toronto, January
30, 1986; March 19, 1987; Ottawa, August 10,
1987.
Combines — Whether Combines Investigation Act, s. 17
inconsistent with freedoms guaranteed by Charter s. 7 —
Inquiry under Act, s. 8 to determine whether corporation
selling reinforcing steel to customer at lesser price than to
competitors — Corporation's managers ordered to give evi
dence under oath — Whether procedure prescribed by legisla
tion not meeting fundamental justice requirements — Wheth
er Commission member ordering examination unfit as not
impartial arbiter — Adequacy of right to counsel — Right
against self-incrimination Commission's duties administra
tive — Judicial powers conferred by s. 17 on judge of superior,
county or Federal Court — Proceedings determining no rights,
imposing no liabilities — Right not to be compelled as witness
restricted to police inquiries and trials — Proceedings not such
as to require protection against self-incrimination accorded to
one charged with offence — Director, Commission without
power to launch criminal prosecution — Act s. 17 violating
neither Charter s. 7 nor fundamental justice principles.
Constitutional law — Charter of Rights — Life, liberty and
security — Combines Investigation Act, s. 17 — Whether
procedure not meeting fundamental justice requirements
Whether Commission member who may order examination
unfit as not impartial arbiter — Adequacy of right to counsel
— Charter s. 7 not infringed as proceedings administrative, not
judicial and determining no rights — Right against self-
incrimination under Charter s. 7 — Whether residual to
specific rights in ss. 11 and 13 — Right not to be compelled to
be witness restricted to police inquiries and trials — Act, s. 17
proceedings not such as to require protection against self-
incrimination accorded one charged with offence — Director
and Commission lacking power to launch criminal prosecution.
Judicial review — Prerogative writs — Application for
certiorari and prohibition in action for declaration Combines
Investigation Act, s. 17 inconsistent with Charter s. 7 guaran
tees — Managers of corporation under investigation ordered to
give evidence under oath — Whether procedure prescribed by
legislation meeting fundamental justice requirements —
Whether Commission member who may order examination
unfit as not impartial arbiter — Adequacy of right to counsel
— Commission's duties administrative, not judicial — Pro
ceedings determining no rights — Right against self-incrimi
nation not violated — Application dismissed.
This is an application for certiorari quashing orders made
under section 17 of the Combines Investigation Act and for
prohibition restraining the defendants from proceeding with the
hearing contemplated by section 17. Pursuant to section 17,
which permits the examination under oath of any person, the
applicants were advised that an inquiry under section 8 had
commenced to determine whether there was any evidence that
Stelco Inc. had committed an indictable offence contrary to
paragraph 34(1)(a). The individual applicants, who were
managers of the plaintiff company, were ordered to appear and
give evidence under oath. They were informed that they were
entitled to be represented by counsel. The applicants submit
that the power to compel their testimony is an infringment of
their right against self-incrimination and contravenes Charter
section 7. They further argue that the procedure prescribed
falls short of the requirements of fundamental justice with
respect to the right to representation by counsel. They contend
that the member of the Commission who may order the exami
nation of any person is not an impartial arbiter and is therefore
not fit to perform this function.
Held, the application should be dismissed.
The reasoning in the Southam case leading to the finding
that the section 10 power to order search and seizure was
unconstitutional is inapplicable and does not support the argu
ment that the Commission member is not an impartial arbiter.
The power to compel testimony is an essential part of the
Commission's investigatory duties, and is merely an administra
tive act. Subsection 17(3) specifically reserved the powers of
enforcement and punishment to a judge of the Federal Court or
a superior or county court.
The Supreme Court of Canada in Irvine v. Canada (Restric-
tive Trade Practices Commission) held that, given the nature of
section 17 proceedings, the possible consequences and the safe
guards provided by the Act, fairness did not require the full
participation of counsel in the hearing. Fundamental justice
does not require the right to counsel appropriate to a judicial
proceeding as section 17 proceedings determine no rights,
impose no liabilities, are conducted in private and at most lead
to a statement of evidence to the Commission. That decision
went against the applicants' argument, that the limited right to
representation by counsel provided for in the Act failed to
satisfy the requirements of fundamental justice.
The reasoning in Thomson Newspapers Ltd. et al. v. Direc
tor of Investigation and Research et al. is applicable to the
applicants' argument concerning self-incrimination. The right
not to be compelled to be a witness is "restricted to police
inquiries and the like" and to trial proceedings. In all other
proceedings, the protection against self-incrimination does not
permit a witness to refuse to answer questions, but only gives
him the assurance that his answers will not be used against him
in a subsequent criminal proceeding. That right is provided in
section 5 of the Canada Evidence Act and subsection 20(2) of
the Combines Investigation Act. These proceedings do not
require protection against self-incrimination. There is no sub
stantive determination of the parties' rights. Subsection 20(2) is
sufficient protection against self-incrimination. The privilege
against self-incrimination does not permit witnesses to refuse to
attend. They are fully protected against the subsequent use of
any incriminating answers by section 5 of the Canada Evidence
Act, subsection 20(2) of the Combines Investigation Act and
section 13 of the Charter.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
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. 1I (U.K.), ss. 7, 11, 13.
Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 8
(as am. by S.C. 1974-75-76, c. 76, s. 3), 15, 17, 20,
20(2), 27, 34(1)(a).
CASES JUDICIALLY CONSIDERED
APPLIED:
Irvine v. Canada (Restrictive Trade Practices Commis
sion), [1987] 1 S.C.R. 181; Thomson Newspapers Ltd. et
al. v. Director of Investigation and Research et al.
(1986), 57 O.R. (2d) 257 (C.A.); affg. (1986), 54 O.R.
(2d) 143 (H.C.).
DISTINGUISHED:
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145.
CONSIDERED:
R. L. Crain Inc. et al. v. Couture and Restrictive Trade
Practices Commission et al. (1983), 10 C.C.C. (3d) 119
(Sask. Q.B.).
REFERRED TO:
Transpacific Tours Ltd. et al. v. Director of Investigation
& Research, Combines Investigation Act (1985), 8
C.P.R. (3d) 325 (B.C.S.C.).
COUNSEL:
C. S. Goldman and N. Finkelstein for
plaintiffs.
J. F. Rook, Q.C. for defendants.
SOLICITORS:
Blake, Cassels & Graydon, Toronto, for
plaintiffs.
Holden, Murdoch & Finlay, Toronto, for
defendants.
The following are the reasons for order ren
dered in English by:
JEROME A.C.J.: The plaintiffs commenced an
action seeking, among other relief, a declaration
that section 17 of the Combines Investigation Act,
R.S.C. 1970, c. C-23, (the Act) is inconsistent
with the rights and freedoms guaranteed by 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.)] (the Chart
er) and is, therefore, of no force and effect. By
notice of motion filed December 16, 1985 the
plaintiffs (applicants) seek:
(i) an order, by way of certiorari quashing the
orders made under section 17 of the Act on
November 18, 1985 by the defendant Richard
B. Holden of the Restrictive Trade Practices
Commission upon the ex parte application by
the defendant Michael P. O'Farrell, the Direc
tor of Investigation and Research under the Act;
(ii) an order, by way of prohibition, restraining
the defendants, the Restrictive Trade Practices
Commission, Richard B. Holden and Michael P.
O'Farrell, the Director of Investigation and
Research, from proceeding with the hearings
contemplated by any of the orders under section
17 of the Act.
The matter initially came on for hearing at
Toronto, Ontario, on January 17 and 30, 1986.
Written submissions were subsequently filed on
June 25 and July 3, and further oral arguments
were heard on March 19, 1987.
The facts are not in dispute. Each of the
individual applicants is employed in a managerial
position by Stelco Inc. Orders dated November 18,
1985 were issued by the respondent Holden, as
Vice-Chairman of the Restrictive Trade Practices
Commission, on an ex parte application by the
Director under section 17 of the Act. Those orders
advised the applicants the Director of Investigation
and Research had commenced an inquiry under
section 8 [as am. by S.C. 1974-75-76, c. 76, s. 3]
of the Act to determine whether evidence existed
that Stelco Inc. had committed an indictable
offence contrary to paragraph 34(1)(a) of the Act
by selling like quality and quantity of reinforcing
steel to Armature L & V Ltée, at a lesser price
than it sold to competing purchasers in the geo
graphic market of the Province of Quebec. The
orders stated that each of the individual applicants
was required to attend before Mr. Holden or a
person named by him on a specific date to give
evidence under oath in connection with the inqui
ry. In an accompanying letter from the Director,
the applicants were referred to sections 17, 20 and
27 of the Act; informed that each was both a
person who was to be examined under oath and a
person whose conduct was being inquired into
under the Act; and advised that as a person being
examined under oath, they were entitled to be
represented by counsel when they were being
examined. The applicant Stelco Inc. was also
advised that it was a person whose conduct was
being inquired into under the Act during the
examination of the individual applicants and that
by virtue of subsection 20(1) of the Act, Stelco
could apply to a member of the Commission to be
represented by counsel. The examinations under
oath were scheduled to commence on January 21,
1986.
The issue to be determined in this application is
whether the orders of the Vice-Chairman of the
Commission issued under subsection 17(1) of the
Act infringe or deny the rights and freedoms guar
anteed by section 7 of the Charter. Before pro
ceeding with an examination of section 17, it
should be noted that the Combines Investigation
Act has been replaced by the Competition Act,
S.C. 1986, c. 26. Although section 17 has been
substantially changed, proceedings commenced
under the Combines Investigation Act continue to
be governed by its provisions.
The relevant statutory provisions are section 8,
subsections 15(1), 17(1),(2) and (3) and para
graph 34(1) (a) of the Act:
8. The Director shall
(a) on application made under section 7,
(b) whenever he has reason to believe that
(i) a person has contravened or failed to comply with an
order made pursuant to section 29, 29.1 or 30,
(ii) grounds exist for the making of an order by the
Commission under Part IV.1, or
(iii) an offence under Part V or section 46.1 has been or is
about to be committed, or
(c) whenever he is directed by the Minister to inquire wheth
er any of the circumstances described in subparagraphs
(b)(i) to (iii) exists,
cause an inquiry to be made into all such matters as he
considers necessary to inquire into with the view of determining
the facts.
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.
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 pro
duction 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 com
petent 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.
34. (1) Every one engaged in a business who
(a) is a party or privy to, or assists in, any sale that
discriminates to his knowledge, directly or indirectly, against
competitors of a purchaser of articles from him in that any
discount, rebate, allowance, price concession or other advan
tage is granted to the purchaser over and above any discount,
rebate, allowance, price concession or other advantage that,
at the time the articles are sold to such purchaser, is avail
able to such competitors in respect of a sale of articles of like
quality and quantity;
is guilty of an indictable offence and is liable to imprisonment
for two years.
The applicants submit that the orders under
section 17 of the Act violate section 7 of the
Charter which reads:
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.
The orders are said to infringe this section in two
ways: first, the power to compel the applicants'
testimony is an infringement of their right against
self-incrimination, and second, the procedure pre
scribed by the legislation falls short of the require
ments of fundamental justice. I will deal with the
procedural argument first. It has two branches:
(a) The applicants contend that the member of
the Commission who may order the examination
of any person is not an impartial arbiter and is
therefore not fit to perform this function.
(b) The right to counsel provided by section 20
of the Act is not a sufficient safeguard for the
applicants' rights during a section 17 hearing.
With regard to the first issue, the applicants rely
on the Supreme Court of Canada decision in
Hunter et al. v. Southam Inc., [ 1984] 2 S.C.R.
145. In that case, Mr. Justice Dickson (as he then
was) considered the power of a Commissioner to
order a search and seizure under section 10 of the
Act. He found the section to be unconstitutional
on the following basis, at page 164:
In my view, investing the Commission or its members with
significant investigatory functions has the result of vitiating the
ability of a member of the Commission to act in a judicial
capacity when authorizing a search or seizure under s. 10(3).
This is not, of course, a matter of impugning the honesty or
good faith of the Commission or its members. It is rather a
conclusion that the administrative nature of the Commission's
investigatory duties (with its quite proper reference points in
considerations of public policy and effective enforcement of the
Act) ill-accords with the neutrality and detachment necessary
to assess whether the evidence reveals that the point has been
reached where the interests of the individual must constitution
ally give way to those of the state. A member of the R.T.P.C.
passing on the appropriateness of a proposed search under the
Combines Investigation Act is caught by the maxim nemo
judex in sua causa. He simply cannot be the impartial arbiter
necessary to grant an effective authorization.
The applicants maintain that this reasoning should
be applied to the Commissioner's power to compel
testimony under section 17. I do not agree. The
power to order an examination under oath is an
essential and integral part of the Commission's
investigatory duties. Without that power, no
proper investigation could take place. In the pas
sage quoted above, Dickson J. specifically recog
nizes the "administrative nature of the Commis
sion's investigatory duties". There is no reason to
find that one of the component functions of those
duties—the ordering of examinations—is anything
other than an administrative act. It certainly
cannot be said that the considerations which Dick-
son J. indicates are appropriate to the performance
of the Commission's duties vitiate the capacity of a
member to fairly carry out the power given by
section 17.
Counsel also refers to the powers of enforcement
and punishment for disobedience and argues that
since they parallel those of a superior court, they
clothe the respondents with judicial authority. My
reading of subsection 17(3), however, leads me to
precisely the opposite conclusion. Those powers of
a judicial nature which are conferred by the sec
tion are specifically reserved to a judge of the
Federal Court or a superior or county court. No
Commissioner can exercise them without prior
application to a court. The respondents' functions
under the section remain primarily administrative
in nature.
I should add that the administrative nature of
the decision which is being reviewed here also
settles the issue of the jurisdiction of this Court
under section 18 of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10]. As administrative deci
sions are specifically excluded from the jurisdic
tion of the Court of Appeal under section 28 of
that Act, there is nothing to prevent me from
hearing this application.
The applicants' second procedural argument
centres on the right to counsel and the degree to
which that right is protected under the Act. A
limited right to counsel is provided by subsection
20(1) of the Act, which reads:
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 repre
sented by counsel.
The applicants maintain that this provision is defi
cient in not allowing them:
(a) the right to have their counsel present
throughout all hearings in relation to the
subject-matter of the inquiry under section 17 of
the Act;
(b) the right to have their counsel examine
them, if and when they are called as witnesses
during the examinations under section 17 of the
Act; and
(c) the right to have their counsel cross-exam
ine other witnesses called during the examina
tions under section 17 of the Act.
These precise objections were the subject of a
challenge to the legislation brought before the
Supreme Court of Canada earlier this year. In
Irvine v. Canada (Restrictive Trade Practices
Commission), [1987] 1 S.C.R. 181, the Court
considered a number of rulings made in the course
of a hearing under section 17 of the Act. Several
had to do with the role witnesses' counsel were
allowed to play during the hearing, and the three
issues raised here were fully considered. The Court
examined the nature of the proceedings, the possi
ble consequences and the safeguards provided by
the Act and determined that in these circum-
stances, fairness did not require the full participa
tion of counsel in the hearing. At pages 231-235
Estey J. writes:
In light of the important factual and legal differences be
tween a public inquiry held under The Public Inquiries Act and
an investigative inquiry which in the present case is held
completely in private, and which generally do [sic] not lead in a
systematic way to prejudice, prosecution or deprivation, the
public inquiry cases are of little use in resolving the issues now
before us.
It follows from the above discussion that neither s. 20(1) of
the Act nor the doctrine of fairness provides the appellants with
a right to cross-examine witnesses at the inquiry. Fairness is a
flexible concept and its content varies depending on the nature
of the inquiry and the consequences for the individual involved.
The characteristics of the proceeding, the nature of the result
ing report and its circulation to the public, and the penalties
which will result when events succeeding the report are put in
train will determine the extent of the right to counsel and,
where counsel is authorized by statute without further direc
tive, the role of such counsel. The investigating body must
control its own procedure. When that body has determinative
powers, different considerations enter the process. The case
against the investigated must be made known to him. This is
provided for in the Act at each of the progressive stages of the
inquiry.
These proceedings have not reached the stage, in the words
of Lord Wilberforce in Wiseman v. Borneman, [1971] A.C.
297, at p. 317, that "it is necessary to look at the procedure in
its setting and ask the question whether it operates unfairly to
the taxpayer to a point where the courts must supply the
legislative omission". Courts must, in the exercise of this
discretion, remain alert to the danger of unduly burdening and
complicating the law enforcement investigative process. Where
that process is in embryonic form engaged in the gathering of
the raw material for further consideration, the inclination of
the courts is away from intervention. Where, on the other hand,
the investigation is conducted by a body seized of powers to
determine, in a final sense or in the sense that detrimental
impact may be suffered by the individual, the courts are more
inclined to intervene. In the present case it was sufficient that
the Hearing Officer allowed all the parties to be represented by
counsel who could object to improper questioning and re-exam
ine their clients to clarify the testimony given and to ensure
that the full story was communicated by the witness counsel
represented.
The Supreme Court in Irvine declined to deal
with the attack on these provisions under section 7
of the Charter, but in my opinion, the reasoning
has direct application in the present case. The
determination that the proceedings here determine
no rights, impose no liabilities, are conducted in
private and at most lead to a statement of evidence
to the Commission, puts the section 7 issue to rest.
Fundamental justice does not require the right to
counsel appropriate to a judicial proceeding.
Having disposed of the procedural arguments, I
turn to the more complex and difficult issue of the
right against self-incrimination. Counsel argues
that since the applicants' conduct is the subject of
the inquiry, they cannot be compelled to give
evidence pursuant to section 17 without infringing
their rights under section 7 of the Charter. To
support this argument counsel relies on the deci
sion of Scheibel J. in R. L. Crain Inc. et al. v.
Couture and Restrictive Trade Practices Commis
sion et al. (1983), 10 C.C.C. (3d) 119 (Sask.
Q.B.). There, the learned Justice held that in
addition to the specific rights against self-incrimi
nation contained in paragraph 11(c) and section
13 of the Charter, section 7 provides a residual
right against self-incrimination. After examining
the jurisprudence on the question of self-incrimi
nation prior to the enactment of the Charter, he
concludes, at page 155, that:
... in my view, s. 17 may be an integral step in an eventual
criminal prosecution of a suspected person. The immediate
result of the inquiry is either a referral of evidence to the
Attorney-General of Canada under s. 15(1) or a report to the
Minister under s. 19(1). In either case the evidence gathered
may form the basis for a subsequent criminal prosecution.
I would conclude that the procedure authorized by s. 17 of
the Act brings us full circle back to the original concerns out of
which the privilege against self-incrimination developed. It
authorizes the arbitrary compelling of a person to assist in his
own prosecution.
Furthermore, in my view, there are no compelling factors to
justify the result dictated by s. 17. The public interest in
orderly competition is not so compelling as to override this
serious interference with the right to liberty and security. In
fact, the public has an interest in not allowing this form of
compulsory self-incrimination.
The opposite conclusion was, however, reached in
Transpacific Tours Ltd. et al. v. Director of
Investigation & Research, Combines Investigation
Act (1985), 8 C.P.R. (3d) 325 (B.C.S.C.) and
most recently in Thomson Newspapers Ltd. et al.
v. Director of Investigation and Research et al.
(1986), 54 O.R. (2d) 143 (H.C.) (affirmed re:
issue of self-incrimination (1986), 57 O.R. (2d)
257 (C.A.); leave to appeal to the Supreme Court
of Canada granted June 25, 1987).
Since the material facts in Thomson are identi
cal to those under consideration, and that decision
was rendered after the initial hearing of this
matter, on June 3, 1986, I ordered counsel to
submit written argument on its application. Coun
sel for the applicants endeavoured to persuade me
that Justice Holland erred in Thomson in applying
judicial interpretations of the Canadian Bill of
Rights in construing the Charter and in finding
that the rights found in sections 11 and 13 of the
Charter are exhaustive in establishing the limits of
the protection against self-incrimination that is
available in Canada. These arguments were
addressed by the Ontario Court of Appeal in its
decision on the appeal from Justice Holland's
judgment ((1986), 57 O.R. (2d) 257). At page 261
of that decision, Grange J.A. speaking for the
Court states:
On the question of s. 7 I find myself in essential agreement
with the decision of J. Holland J. and the reasons he expressed
for that decision. While we must now accept that the provisions
of ss. 8 to 14 of the Charter are but specific illustrations of the
greater rights set forth in s. 7 (see Reference re s. 94(2) of
Motor Vehicle Act (1985), 24 D.L.R. (4th) 536, 23 C.C.C.
(3d) 289, [1985] 2 S.C.R. 486, particularly per Lamer J. at p.
549 D.L.R., pp. 301-2 C.C.C., pp. 502-3 S.C.R.), nevertheless 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 was amended [1893, c.
31, s. 5] to include what is now s. 5 [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, how
ever, he is no more protected than any other witness. I adopt
the conclusion of Professor E. Ratushny found in his work
"Self-Incrimination in the Canadian Criminal Process" (1979),
at p. 92 (with, of course, the necessary changes resulting from
the enactment of the Charter) as follows:
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.
Lamer J. in Reference re s. 94 of Motor Vehicle Act, at p.
557 D.L.R., p. 302 C.C.C., p. 503 S.C.R. said that "the
principles of fundamental justice are to be found in the basic
tenets and principles of our legal system". One of those tenets
has often been referred to as the right to remain silent—see for
example R. v. Esposito (1985), 24 C.C.C. (3d) 88, 53 O.R.
(2d) 356, 49 C.R. (3d) 193, where Martin J.A. said at p. 94
C.C.C., p. 362 O.R., "[t]he right operates both at the investiga
tive stage of the criminal process and at the trial stage". In my
view the right must be restricted to police inquiries and the like
and the trial proceedings themselves. 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 lorio 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), [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. As
Estey J. said in Keable at p. 193 D.L.R., p. 81 C.C.C., p. 258
S.C.R.:
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. (Emphasis added.)
After examining the validity of section 17, he
concludes, at page 263:
The fact that the above-mentioned provisions were held to be
valid prior to the Charter does not of course preclude the attack
in this case based upon s. 7, but it does signify the long
acceptance of a compulsion to testify in combines matters. I
cannot find that compulsion contrary to the tenets of funda
mental justice as we know them and have known them for so
many years particularly in view of the protection afforded to a
witness by s. 5 of the Canada Evidence Act, and the protection
now afforded by s. 13 of the Charter.
It follows that I agree with the result in Haywood Securities
Inc. v. Inter-Tech Resource Group Inc. (1985), 24 D.L.R.
(4th) 724, 68 B.C.L.R. 145, [1986] 2 W.W.R. 289, and in
Transpacific Tours Ltd. et al v. Director of Investigation &
Research et al. (1985), 8 C.P.R. (3d) 325, 25 D.L.R. (4th)
202, 24 C.C.C. (3d) 103. With respect, I would not follow the
judgment of the Saskatchewan Court of Queen's Bench in R.L.
Crain Inc. et al. v. Couture and Restrictive Trade Practices
Commission et al. (1983), 6 D.L.R. (4th) 478, 10 C.C.C. (3d)
119, 30 Sask. R. 191.
(This decision is currently under appeal to the
Supreme Court of Canada.)
Finally, the applicants ask me to distinguish
Thomson from the facts of this case because there,
only the company was under investigation. It is
argued that since, by the very orders which are
under attack here, the individual applicants are
both witnesses and persons whose conduct are
under investigation, the denial of rights is more
clearly established. Again, however, the reasoning
of Grange J.A. leads me to the opposite conclu
sion. As he notes, the right not to be compelled to
be a witness is "restricted to police inquiries and
the like" and to trial proceedings. In all other
proceedings, the protection against self-incrimina
tion does not permit a witness to refuse to answer
questions, but only gives him the assurance that
answers to such questions will not be used against
him in a subsequent criminal proceeding. The
statutory expression is found in section 5 of the
Canada Evidence Act, R.S.C. 1970, c. E-10.
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 proceeding 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 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 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 right is also provided by subsection 20(2) [as
am. by S.C. 1974-75-76, c. 76, s. 8] of the Act:
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. [Subsequently amended by S.C. 1985, c. 19, s.
187 in force Dec. 4, 1985.]
These proceedings are not of a nature to require
the protection against self-incrimination which is
accorded a person charged with an offence. I have
already determined that the investigative powers
under attack here are part of an administrative
procedure. No substantive determination of the
parties' rights can be made at the investigative
stage. Neither the Director nor the Commission
has the authority under the Combines Investiga
tion Act to institute criminal proceedings against
the applicants based on information obtained
during the inquiry. The Director's authority is
limited to referring the evidence to the Attorney
General of Canada (subsection 15(1)) or placing a
statement of evidence before the Restrictive Trade
Practices Commission pursuant to sections 18 and
47. In the latter case, notice is to be given to all
persons against whom allegations are made. Those
persons are then afforded full opportunity to be
heard in person or by counsel. The Commission's
report which reviews the evidence and contains
recommendations is then transmitted to the Minis
ter. Accordingly, the inquiry stage of the proceed
ings does not determine any rights of the appli
cants or impose any liabilities on them. It does not
require, therefore, any additional protection
against self-incrimination beyond that provided by
subsection 20(2) of the Act.
The privilege against self-incrimination, as it
exists in Canada, does not permit these witnesses
to refuse to answer questions during the course of
an investigative hearing. It clearly cannot provide
them the right to refuse to attend. They are fully
protected against the subsequent use of any
incriminating answers by the Canada Evidence
Act and subsection 20(2) of the Combines Investi
gation Act, as well as section 13 of the Charter.
When coupled with the right to counsel, these
protections are more than adequate in the factual
circumstances of this case.
I do not find, therefore, that these orders, made
pursuant to subsection 17(1) of the Combines
Investigation Act, are inconsistent with the princi
ples of fundamental justice or that they offend
section 7 of the Charter.
The application is dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.