Indexed as: Thomson Newspapers Ltd

Indexed as: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) Thomson Newspapers Limited, Brian W. Slaight, Peter T. Bogart and Paul E. Weeks, appellants; v. Director of Investigation and Research, Combines Investigation Act, Restrictive Trade Practices Commission and the Attorney General of Canada, respondents; and The Attorney General for Ontario, the Attorney General of Quebec, the Attorney General for New Brunswick and the Attorney General for Alberta, interveners.

[1990] 1 S.C.R. 425 [1990] S.C.J. No. 23 File No.: 20228. Supreme Court of Canada 1988: November 1 / 1990: March 29. Present: Lamer, Wilson, La Forest, L'Heureux-Dubйй and Sopinka JJ. ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO (336 paras.)

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

Constitutional law —— Charter of Rights —— Unreasonable search and seizure —— Combines investigation —— Corporation suspected of predatory pricing —— Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act —— Whether s. 17 infringes s. 8 of the [page426] Canadian Charter of Rights and Freedoms —— If so, whether s. 17 justifiable under s. 1 of the Charter.

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

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

The corporate appellant and several of its officers, the individual appellants, were served with orders to appear before the Restrictive Trade Practices Commission to be examined under oath and to produce documents. The orders were issued pursuant to s. 17 of the Combines Investigation Act (the "Act") in connection with an inquiry to determine if there was evidence that the corporation had committed the offence of predatory pricing contrary to s. 34(1)(c) of the Act. A person who refuses to comply with a s. 17 order can be punished by the Commission pursuant to s. 17(3). A refusal may also constitute an offence under the Act. The appellants applied to the Ontario High Court for a declaration that s. 17 and the orders were inconsistent with the guarantee to fundamental justice in s. 7 of the Canadian Charter of Rights and Freedoms and the guarantee against unreasonable search or seizure in s. 8 of the Charter. The High Court allowed the application in part holding that s. 17 of the Act violated s. 8 but not s. 7. The decision was appealed by the appellants and cross-appealed [page427] by the respondents. The Court of Appeal held that s. 17 did not violate either section.

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

Question:

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

Answer:

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

Section 7 of the Charter

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

The power conferred by s. 17 of the Act to compel any person to give oral testimony constitutes a deprivation of liberty but such compulsion, in itself, does not violate the principles of fundamental justice. The right of an accused or a suspect to remain silent, while extending beyond the trial itself, does not extend to those who are ordered to testify in a proceeding such as that provided by s. 17 of the Act. The power to compel testimony is important to the overall effectiveness of the investigative machinery established by the Act. An absolute right to refuse to answer questions in a s. 17 inquiry would represent a dangerous and unnecessary imbalance between the rights of the individual and the community's legitimate interest in discovering the truth about the existence of practices against which the Act was designed to protect the public. The section 17 inquiries are inquisitorial rather than adversarial in nature. They are investigations in which no final determination as to criminal liability is reached. The right to prevent the [page428] subsequent use of compelled self-incriminating testimony protects an individual from being "conscripted against himself" without simultaneously denying an investigator's access to relevant information. It strikes a just and proper balance between the interests of the individual and the state -- an important factor that must be taken into account in defining the content of the principles of fundamental justice. While a corporation cannot avail itself of the protection offered by s. 7 of the Charter, and in respect of the right against compelled self-incrimination, is incapable of being forced to testify against itself, the right against self-incrimination is still available to those who are compelled to give testimony as the representatives of a corporation. Regardless of whether they give testimony in their representative or personal capacities, those who are compelled to testify under s. 17 are subjected to a direct and real violation of their own liberty.

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

Per L'Heureux-Dubйй J.: While the constitutionality of s. 17 of the Act is attacked here, one must not lose sight of the fact that corporations cannot claim the protection [page429] of s. 7 of the Charter because they are, on principle, excluded from the ambit of that constitutional guarantee. Section 7 therefore cannot be invoked by the individual appellants acting as representatives of the corporation. To allow them to do so would grant corporations rights which they cannot enjoy. With respect to witnesses qua individuals, an order to testify under s. 17 of the Act may constitute a violation of their rights of "liberty and security of the person" within the meaning of s. 7 of the Charter, but such violation would be effected in accordance with the principles of fundamental justice. Under section 7, "fundamental justice" requires a protection coextensive with the individual's testimonial participation in the investigation. Use immunity satisfies this requirement and such protection is afforded by s. 20(2) of the Act. This protection serves the end of preventing the state from using incriminating evidence which was obtained by the individual himself, while at the same time tailoring the protection to what our system considers to be the appropriate boundary of fairness in the criminal process.

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

A subpoena duces tecum issued under s. 17 of the Act does not infringe s. 7 of the Charter. No claim can be advanced by, or on behalf of the corporation, under this constitutional provision. As far as the appellant individuals qua individuals are concerned, assuming that a subpoena deprives them of their "liberty or security of the person", fundamental justice under s. 7 does not extend protection over corporate books and records. Like section 13 of the Charter, the s. 7 residual protection against self-incrimination is limited to "testimonial evidence". Moreover, an order requiring an individual or the officer of a corporation to produce documents does [page430] not involve the fabrication of evidence; the individual or officer acts as a "mere conduit" for the delivery of pre-existing records. Thus, there is no suggestion that the use of such evidence in a subsequent trial would affect the fairness of the proceedings.

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

Per Wilson J. (dissenting): Section 7 of the Charter, which is confined to the protection of human beings and has no application to corporations, can be successfully invoked in this case because three individuals as well as a corporation are named as parties. If section 17 is [page431] found to be of no force or effect, this finding applies, of course, to corporations as well as human beings.

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

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

Section 17 of the Act cannot be saved under s. 1 of the Charter. The effective investigation of suspected criminal and quasi-criminal activity and the monitoring of the economic activity in Canada are two legislative objectives of sufficient importance to warrant infringement of individual rights and freedoms. Society has a [page432] very real interest in controlling crime and in ensuring the stability of the market-place. The means chosen to achieve these objectives, however, are not "reasonable and demonstrably justified". While compelling individuals to appear and testify regarding their business activities is a rational way of monitoring compliance with the Act, s. 17 does not interfere with the individual appellants' s. 7 rights as little as possible. There is no evidence in this case to suggest that the government's objectives would be frustrated if individuals compelled to testify were afforded derivative use protection or that the enforcement of the Act will be drastically impaired if derivative use protection is given to persons testifying under s. 17.

Per Sopinka J. (dissenting): The provisions of s. 17 of the Act relating to oral testimony violate the right to remain silent and contravene s. 7 of the Charter. While the privilege against self-incrimination is limited to the right of an individual to resist testimony as a witness in a legal proceeding, the right of a suspect or an accused to remain silent operates both at the investigative stage of the criminal process and at the trial stage. The testimonial aspect of the right to remain silent is specifically included in s. 11(c) of the Charter. The right of a suspect to remain silent during the investigative stage, which has the status of a principle of fundamental justice, is included in s. 7. This section is the repository of many of our basic rights which are not otherwise specifically enumerated. The right to remain silent, therefore, may not be reduced, truncated or thinned out by federal or provincial action. For the purpose of this appeal, the right to remain silent is a right not to be compelled to answer questions or otherwise communicate with police officers or others whose function it is to investigate the commission of criminal offences. The protection afforded by the right is not designed to protect the individual from the police qua police but from the police as investigators of criminal activity. It protects the individual against the affront to dignity and privacy which results if crime enforcement agencies are allowed to conscript the suspect against himself. Since this right is protected by the Charter, it follows that the provinces or the federal government cannot transfer the investigative function, which is normally carried out by the police, to other agents who are empowered by statute to force suspects or potential suspects to testify. In the field of anti-competitive crime, the police work is carried out largely, if not exclusively, by the Director of Investigation and Research and his staff. Although s. 17 has other purposes, an important one is to aid the Director and his staff in investigating specific crimes. To this extent, the hearing officer is a policeman armed [page433] with a subpoena. Parliament has not separated out of s. 17 its use for different purposes, many of which would not violate the right to remain silent. Accordingly, the whole of the provision relating to the compelling of testimony violates s. 7. For the reasons given by Wilson J., this violation could not be justified under s. 1 of the Charter and s. 17, to the extent of the inconsistency with s. 7, must be struck down.

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

Section 8 of the Charter

Per La Forest J.: Section 17 of the Act does not infringe s. 8 of the Charter. The essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person's consent. An order to produce documents under s. 17, therefore, constitutes a seizure within the meaning of s. 8. But a s. 17 seizure is not unreasonable. The Act, though supported by penal sanctions, is essentially regulatory in nature, and hence part of our administrative law. It is aimed at the regulation of the economy and business with a view to the preservation of the competitive conditions which are crucial to the operation of a free market economy. The conduct prohibited by the Act is conduct which is made criminal for strictly instrumental reasons, and the use of criminal sanctions, including imprisonment, are necessary to induce compliance with the Act. As the discovery of violations to the Act will often require access to information as to the internal affairs of business organizations, the s. 17 power to compel the production of documents is important to the overall effectiveness of the investigative machinery established by the Act and does not constitute an unreasonable intrusion on privacy. Business records and documents will normally be the only records and documents that can lawfully be demanded under that section. There is only a relatively low expectation of privacy in respect of these documents since they are used or produced in the course of activities which, though lawful, are subject to state regulation as a matter of course. Section 17 does not infringe on [page434] this limited expectation of privacy. This does not mean that there is no limitation to the potential scope of an order to produce documents which can be validly issued under s. 17. The material sought in the order must be relevant to the inquiry in progress in light of its nature and purpose. There is no requirement that relevancy to a lawful inquiry be determined before the subpoena is issued; it is sufficient if its relevancy can be challenged by way of judicial review. This opportunity to challenge the relevancy of any particular use of s. 17, by way of judicial review, provides adequate guarantee against potential abuse of the power s. 17 confers. No evidence of any such abuse is apparent in this case.

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

Per L'Heureux-Dubйй J.: A subpoena duces tecum under s. 17 of the Act does not infringe s. 8 of the Charter. While a subpoena duces tecum issued under s. 17 may be considered a "seizure" within the meaning of s. 8, the "seizure" contemplated by s. 17 is reasonable. The Act is a complex scheme of economic regulation aimed at eradicating practices that impair free competition in the market-place and s. 17 is part of the administrative machinery which was established in order to promote the Act's purpose. Because the Act's administrative machinery and enforcement provisions are part of a regulatory scheme, the reasonableness of the subpoena duces tecum issued under s. 17 must be assessed taking into account a number of factors, including the importance of the Act's underlying purpose, the necessity of impairing privacy interests, and the absence of other, less onerous, alternatives. These factors indicate clearly that public interest in the freedom and protection of citizens in the market-place prevails over the minimal infringement of the privacy interests of those required to disclose information of an economic nature. First, the legislative purpose of the Act serves important socio-economic interests. Second, the existence of a mechanism [page435] of discovery is necessary in order to properly serve the regulatory objective of the legislation. Third, as a means chosen to bring about the legislative end, the subpoena is significantly less intrusive than other alternatives. In addition, in the case of corporations, their privacy interest is relatively low with respect to requests for economic information. Fourth, while there is no express condition precedent to the issuance of the subpoena, the order can be contested and reviewed before an impartial judicial officer (s. 17(3)). The review provides a safeguard to ensure that s. 17 orders are issued for the sole purpose of advancing the regulatory aim of the Act. A subpoena duces tecum issued under s. 17 does not, therefore, constitute an "unreasonable seizure" within the meaning of s. 8 of the Charter.

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

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

Per Lamer and Wilson JJ. (dissenting): Sections 17(1) and 17(4) violate the right to be secure against unreasonable seizure enshrined in s. 8 of the Charter. A seizure under s. 8 is the taking by a public authority of a thing belonging to a person against that person's will. Applying a purposive interpretation of s. 8, the compulsory [page436] production of documents in a criminal or quasi-criminal law context falls within that definition. Whether the public authority "takes" the documents or compels the person to hand them over, the impact on the person's right to privacy in the documents is the same. Sections 17(1) and 17(4), therefore, constitute a seizure within the meaning of s. 8, and this seizure is unreasonable because it does not meet the test of reasonableness set forth in Hunter. The possibility of an individual's challenging the s. 17 order before a judge, prior to giving up possession of the documents, either by way of an application for review or by way of s. 17(3) does not meet the concerns underlying the Hunter criteria. Only the sophisticated will be aware of this procedure. Most people will respond forthwith to the authority's demand. Nor does it meet the requirement of reasonable and probable grounds. The Hunter criteria are not hard and fast rules which must be adhered to in all cases under all forms of legislation -- what may be reasonable in the regulatory or civil context may not be reasonable in a criminal or quasi-criminal context. Nevertheless, the more akin the legislation is to traditional criminal law, the less likely it is that departures from the Hunter criteria will be countenanced.

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

Cases Cited

By La Forest J.

Distinguished: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Amway Corp., [1989] 1 S.C.R. 21; considered: R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Black, [1989] 2 S.C.R. 138; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946); referred to: R. v. Dyment, [1988] 2 S.C.R. 417; Re Alberta Human Rights Commission and Alberta Blue Cross Plan (1983), 1 D.L.R. (4th) 301; R. v. Rao (1984), 46 O.R. (2d) 80; Re Belgoma Transportation Ltd. and Director of Employment Standards (1985), 51 O.R. (2d) 509; R. v. Quesnel [page437] (1985), 12 O.A.C. 165; Bertram S. Miller Ltd. v. R., [1986] 3 F.C. 291; R. v. Bichel, [1986] 5 W.W.R. 261; Attorney General of Canada v. Canadian National Transportation Ltd., [1983] 2 S.C.R. 206; R. v. Wetmore, [1983] 2 S.C.R. 284; R. v. Chiasson (1982), 135 D.L.R. (3d) 499 (N.B.C.A.), aff'd [1984] 1 S.C.R. 266; R. v. Morgentaler, [1988] 1 S.C.R. 30; Hale v. Henkel, 201 U.S. 43 (1906); Wilson v. United States, 221 U.S. 361 (1911); United States v. Morton Salt Co., 338 U.S. 632 (1950); Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; Federal Trade Commission v. Texaco, Inc., 555 F.2d 862 (1977); People v. Allen, 103 N.E.2d 92 (1952); Federal Trade Commission v. Tuttle, 244 F.2d 605 (1957); Adams v. Federal Trade Commission, 296 F.2d 861 (1961); People v. Dorr, 265 N.E.2d 601 (1971); Federal Trade Commission v. American Tobacco Co., 264 U.S. 298 (1924); R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Jones, [1986] 2 S.C.R. 284; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. N.M. Paterson and Sons Ltd., [1980] 2 S.C.R. 679; Kastigar v. United States, 406 U.S. 441 (1972); R. v. Potvin, [1989] 1 S.C.R. 525; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wiggins, [1990] 1 S.C.R. 62; Haywood Securities Inc. v. Inter-Tech Resource Group Inc. (1985), 24 D.L.R. (4th) 724; R. v. Ross, [1989] 1 S.C.R. 3; Counselman v. Hitchcock, 142 U.S. 547 (1892); Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Sang, [1980] A.C. 402; Lucier v. The Queen, [1982] 1 S.C.R. 28; R. v. Williams (1985), 44 C.R. (3d) 351; R. v. Rowbotham (1988), 63 C.R. (3d) 113.

By L'Heureux-Dubйй J.

Applied: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Amway Corp., [1989] 1 S.C.R. 21; distinguished: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Kastigar v. United States, 406 U.S. 441 (1972); considered: Faber v. The Queen, [1976] 2 S.C.R. 9; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; referred to: Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; R. v. Hoffmann-La Roche Ltd. (Nos. 1 and 2) (1981), 33 O.R. (2d) 694; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Weidman v. Shragge (1912), 46 S.C.R. 1; Stinson-Reeb Builders Supply Co. v. The King, [1929] S.C.R. 276; Container Materials, Ltd. v. The King, [1942] S.C.R. 147; Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403; Aetna Insurance Co. v. The Queen, [1978] 1 S.C.R. 731; Irvine v. Canada (Restrictive Trade Practices Commission), [page438] [1987] 1 S.C.R. 181; R. v. Stewart, [1988] 1 S.C.R. 963; R. v. Beare, [1988] 2 S.C.R. 387; R. v. N.M. Paterson and Sons Ltd., [1980] 2 S.C.R. 679; R. v. Coote (1873), L.R. 4 P.C. 599; R. v. Sloggett (1856), Dears. 656, 169 E.R. 885; R. v. Scott (1856), Dears. & Bell 47, 169 E.R. 909; Tass v. The King, [1947] S.C.R. 103; Rothman v. The Queen, [1981] 1 S.C.R. 640; Rice v. Connolly, [1966] 2 Q.B. 414; Dedman v. The Queen, [1985] 2 S.C.R. 2; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Wray, [1971] S.C.R. 272; R. v. Woolley (1988), 40 C.C.C. (3d) 531; R. v. Black, [1989] 2 S.C.R. 138; Marcoux v. The Queen, [1976] 1 S.C.R. 763; R. v. Altseimer (1982), 38 O.R. (2d) 783; Wilson v. United States, 221 U.S. 361 (1911); Dreier v. United States, 221 U.S. 394 (1911); United States v. White, 322 U.S. 694 (1944); Bellis v. United States, 417 U.S. 85 (1974); Braswell v. United States, 108 S. Ct. 2284 (1988); Hale v. Henkel, 201 U.S. 43 (1906); R. v. Dyment, [1988] 2 S.C.R. 417; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627.

By Sopinka J. (dissenting in part)

General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Dubois v. The Queen, [1985] 2 S.C.R. 350; Blunt v. Park Lane Hotel, Ltd., [1942] 2 K.B. 253; R. v. Esposito (1985), 24 C.C.C. (3d) 88; R. v. Symonds (1983), 9 C.C.C. (3d) 225; R. v. Eden, [1970] 3 C.C.C. 280; R. v. Engel (1981), 9 Man. R. (2d) 279; R. v. Minhas (1986), 53 C.R. (3d) 128; R. v. Christie, [1914] A.C. 545; R. v. Clarke (1979), 33 N.S.R. (2d) 636; R. v. Hansen (1988), 46 C.C.C. (3d) 504; Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; Marcoux v. The Queen, [1976] 1 S.C.R. 763; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Wray, [1971] S.C.R. 272; Mapp v. Ohio, 367 U.S. 643 (1961); United States v. Leon, 468 U.S. 897 (1984); R. v. Woolley (1988), 40 C.C.C. (3d) 531; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Re Nelles and Grange (1984), 46 O.R. (2d) 210; R. v. Amway Corp., [1989] 1 S.C.R. 21; R. v. Collins, [1987] 1 S.C.R. 265; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. Gaich (1956), 24 C.R. 196; R. v. Hannam, [1964] 2 C.C.C. 340; Descффteaux v. Mierzwinski, [1982] 1 S.C.R. 860; R. v. Container Materials Ltd., [1940] 4 D.L.R. 293; R. v. Hashem (1940), 73 C.C.C. 124; R. v. Famous Players, [1932] O.R. 307; Braswell v. United States, 108 S. Ct. 2284 (1988); Ziegler v. Hunter, [1984] 2 F.C. 608; Re Belgoma Transportation Ltd. and Director of Employment Standards (1984), 47 O.R. (2d) 309; Tyler v. M.N.R., [1989] 1 C.T.C. 153; Re Gershman Produce Co. and Motor Transport Board [page439] (1985), 22 D.L.R. (4th) 520; Re Alberta Human Rights Commission and Alberta Blue Cross Plan (1983), 1 D.L.R. (4th) 301; Re Reich and College of Physicians and Surgeons of Alberta (No. 2) (1984), 8 D.L.R. (4th) 696; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. McKinlay Transport Ltd. (1987), 62 O.R. (2d) 757, aff'd [1990] 1 S.C.R. 627; Canadian Bank of Commerce v. Attorney General of Canada, [1962] S.C.R. 729; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Director of Investigation and Research v. Restrictive Trade Practices Commission (1985), 4 C.P.R. (3d) 59; Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; R. v. Simmons, [1988] 2 S.C.R. 495.

By Wilson J. (dissenting)

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

Statutes and Regulations Cited

Act to amend the Canada Evidence Act, 1893, S.C. 1898, c. 53.[page440]Act to further amend the Canada Evidence Act, 1893, S.C. 1901, c. 36.Canada Business Corporations Act, R.S.C., 1985, c. C-44, ss. 15, 16.Canada Evidence Act, 1893, S.C. 1893, c. 31, s. 5.Canada Evidence Act, R.S.C. 1970, c. E-10 [now R.S.C., 1985, c. C-5], ss. 4(1), 5.Canadian Bill of Rights, R.S.C. 1970, App. III, ss. 1(a), 2(d).Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 11(c), 13, 24(2).Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 8 [am. 1974-75-76, c. 76, s. 4], 9, 10, 14(1), 15, 17, 18 [am. idem, s. 6], 20 [am. idem, s. 8; am. 1985, c. 19, s. 187 (schedule V (item 3))], 22, 31.4 [ad. 1974-75-76, c. 76, s. 12], 32 [am. idem, s. 14], 32.2 [ad. idem, s. 15], 33, 34(1)(c) [am. 1974-75-76, c. 76, s. 16(1)], 36 [rep. & sub. idem, s. 18], 36.1 [ad. idem], 36.3 [idem], 36.4 [idem], 37.1 [idem], 37.2 [idem], 38 [idem], 40, 41, 44(2) [rep. & sub. 1974-74-76, c. 76, s. 19], 45 [am. idem, s. 21], 46.1 [ad. idem, s. 24].Combines Investigation Act, S.C. 1910, c. 9, s. 32.Constitution Act, 1867, s. 91.Constitution Act, 1982, s. 52(1).Income Tax Act, R.S.C. 1952, c. 148 [am. 1970-71-72, c. 63, s. 1], ss. 231(3), 239.

Authors Cited

Berger, Mark. Taking the Fifth: The Supreme Court and the Privilege Against Self-Incrimination. Toronto: Lexington Books, 1980.Canada. Consumer and Corporate Affairs Canada. Combines Investigation Act Amendments 1984: Background Information and Explanatory Notes, 1984.Canada. Law Reform Commission. Report 3. Our Criminal Law. Ottawa: The Commission, 1976.Canada. Law Reform Commission. Working Paper 16. Criminal Responsibility for Group Action. Ottawa: The Commission, 1976.Canada. Law Reform Commission. Working Paper 17. Commissions of Inquiry: A New Act. Ottawa: The Commission, 1977.Chevrette, Franззois. "Protection Upon Arrest or Detention and Against Retroactive Penal Law". In Gййrald-A. Beaudoin and Ed Ratushny, eds., The Canadian Charter of Rights and Freedoms, 2nd ed. Toronto: Carswells, 1989.Davis, Kenneth Culp. Administrative Law Text, 3rd ed. St. Paul, Minn.: West Publishing Co., 1972. [page441]de Montigny, Yves. "La protection contre les fouilles, les perquisitions et les saisies abusives: un premier bilan" (1989), 49 R. du B. 53.Delisle, R.J. "Evidence -- Judicial Discretion and Rules of Evidence -- Canada Evidence Act, s. 12: Corbett v. The Queen" (1988), 67 Can. Bar Rev. 706.Gorecki, Paul K. and W.T. Stanbury. "Canada's Combines Investigation Act: The Record of Public Law Enforcement, 1889-1976". In J. Robert S. Prichard, W.T. Stanbury and Thomas A. Wilson, eds., Canadian Competition Policy: Essays in Law and Economics. Toronto: Butterworths, 1979.Kintner, Earl W. and William P. Kratzke. Federal Antitrust Law, vol. VI. Cincinnati: Anderson Publishing Co., 1986.LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, vol. 2, 2nd ed. St. Paul, Minn.: West Publishing Co., 1987.Ouellette, Yves. "La Charte canadienne et les tribunaux administratifs" (1984), 18 R.J.T. 295.Paciocco, David M. Charter Principles and Proof in Criminal Cases. Toronto: Carswells, 1987.Ratushny, Ed. Self-Incrimination in the Canadian Criminal Process. Toronto: Carswells, 1979.Reid, Alan D. and Alison Harvison Young. "Administrative Search and Seizure Under the Charter" (1985), 10 Queen's L.J. 392.Rostow, Eugene V. Planning for Freedom: The Public Law of American Capitalism. New Haven: Yale University Press, c/o 1959, 1962.Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.Wilson, Stephen V. and A. Howard Matz. "Obtaining Evidence for Federal Economic Crime Prosecutions: An Overview and Analysis of Investigative Methods" (1977), 14 Am. Crim. L. Rev. 651.

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

H. Lorne Morphy, Q.C., and John B. Laskin, for the appellants.[page442]Bryan Finlay, Q.C., and J. Gregory Richards, for the respondents.Leah Price and Timothy Macklem, for the intervener the Attorney General for Ontario.Jean Bouchard and Gilles Laporte, for the intervener the Attorney General of Quebec.Bruce Judah, for the intervener the Attorney General for New Brunswick.Robert C. Maybank, for the intervener the Attorney General for Alberta.

Solicitors for the appellants: Tory, Tory, DesLauriers & Binnington, Toronto.Solicitors for the respondents the Director of Investigation and Research and the Attorney General of Canada: Weir & Foulds, Toronto.Solicitor for the intervener the Attorney General for Ontario: Richard F. Chaloner, Toronto.Solicitors for the intervener the Attorney General of Quebec: Jean Bouchard and Gilles Laporte, Ste-Foy.Solicitor for the intervener the Attorney General for New Brunswick: The Department of Justice and Attorney General for New Brunswick, Fredericton.Solicitor for the intervener the Attorney General for Alberta: The Department of the Attorney General, Edmonton.

[Quicklaw note: An errata was published at [1990] 1 S.C.R., page iv. The change indicated therein has been made to this document and the text of the errata as published in S.C.R. is appended to the judgment.]

The following are the reasons delivered by

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

2 As regards s. 7, the following comments are made on the assumption that I agree with my colleague Wilson J.'s finding and analysis in support thereof that it is and has long been in Canada a principle of fundamental justice that a witness may refuse to give an incriminating answer. This finding inferentially leads us to the conclusion, and a far reaching one at that, that s. 5(1) of the Canada Evidence Act, R.S.C. 1970, c. E-10 (now [page443] R.S.C., 1985, c. C-5), is a limit prescribed by law that may or may not be justified as reasonable in a free and democratic society following a s. l analysis, having regard to s. 5(2) of the Canada Evidence Act and s. 13 of the Charter.

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

4 A person who is prosecuted or facing a show cause for contempt is brought within the protection of s. 7 as that person is in jeopardy of being deprived of his or her right to liberty and security of the person. The protection afforded is that of not being deprived thereof except in accordance with the principles of fundamental justice. In this case, no one is suggesting that the contempt power or the Criminal Code offences for which a recalcitrant witness may be prosecuted offend the principles of fundamental justice. What can only be argued, irrespective of the parties' approach, is that s. 17 violates s. 7 of the Charter to the extent that it enables a Commissioner to punish for contempt a witness who refuses to give an answer to a question put to him, on the ground that it may tend to incriminate him. Section 17 empowers generally to punish for contempt witnesses who refuse to answer. That does not violate s. 7. It is s. 20, in fact the first few lines of s. 20(2) which takes away the common law right to refuse to give incriminatory answers, that brings the refusal to answer within contempt and that really triggers the violation. Indeed, if s. 20 of the Combines Investigation Act and s. 5(1) of the Canada Evidence Act did not exist such a witness's liberty would not be put in jeopardy by s. 17. A challenge under s. 52 of the Constitution Act, 1982 grounded [page444] on s. 7 must of necessity, given the particular structure of s. 7, attack the law that allegedly limits the principle of fundamental justice; deprivations by law of life, liberty, or security of the person are not the limits by law referred to under s. 1. It is the limit by law to the principles of fundamental justice that takes us to s. 1, and it is the law that imposes that limit that is then put on trial. All this is to say that the appellants, in this case, have throughout, in my respectful view, challenged the wrong section. They should have challenged the constitutionality of s. 20(2) which, in almost the exact language of s. 5(1) of the Canada Evidence Act, states:

20.

...

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

Be that as it may, if s. 5(1) of the Canada Evidence Act did not exist, I would, though reluctantly overlook this, and try to settle the matter through the constitutional challenge of s. 17. I would not however, in that event, with respect, do it so broadly as my colleague suggests. At most, I would declare inoperative only the contempt power granted in s. 17, and there, only as regards those witnesses who object to answering questions on the ground that the answer would tend to incriminate them. Though it is somewhat unorthodox to go that route while the "culprit" section is unattacked, [page445] I could go that route, were it not for the following two reasons. First, this collateral attack leads us into inferentially pronouncing upon s. 5(1) of the Canada Evidence Act even further than the extent to which I referred at the outset of my reasons. Indeed, the s. 1 analysis of s. 17 carried out by my colleagues is in fact a s. 1 analysis of s. 20. Finding that s. 20 through s. 17 fails under s. 1 is inferentially a finding that s. 5(1) of the Canada Evidence Act is not only a restriction to a principle of fundamental justice but also one that, at least in certain contexts, probably in all, cannot be salvaged under s. 1. It would be most undesirable that we do this as a result of a challenge of the wrong section of the Combines Investigation Act and without a genuine challenge of s. 5(1) of the Canada Evidence Act, affording the constitutional validity of that section a full hearing. Second, this improper s. 52 challenge circumvents a challenge of s. 5(1) which, quite undoubtedly, would have attracted different interventions from the Attorneys General. Indeed, if s. 20 did not exist witnesses would be governed by s. 5 of the Canada Evidence Act. Had the challenge been made to the proper section, that is s. 20, the first few lines of s. 20(2) which takes away the right not to answer, would have been declared inoperative. That finding would have granted the same protection from contempt as limiting, to the extent I suggested earlier, the contempt power under s. 17, were it not for the fact that there is still in place s. 5(1) which states in similar language but exactly to the same effect, that which is stated by s. 20(2). In other words, to succeed, the appellants had to challenge s. 20(2) of the Combines Investigation Act and s. 5(1) of the Canada Evidence Act. They have challenged neither and for this reason, without pronouncing upon the s. 7 issues I find that their s. 7 argument cannot succeed in this case.

[page446]

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

The following are the reasons delivered by

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

1. The Facts

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

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

[page447]

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

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

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

2. The Issues

12 The constitutional question set by this Court reads as follows:

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

3. The Courts Below

(a) At Trial

13 After reviewing the relevant provisions of the Combines Investigation Act and identifying the proper interpretive approach to be taken to the [page448] Charter, J. Holland J. turned specifically to the question of whether or not ss. 17(1) and 17(4) of the Act violated s. 8 of the Charter. He prefaced his analysis with the following remarks at p. 156:

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

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

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

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

14 Having found that compelled production under s. 17(1) constituted a seizure, the learned trial judge next considered whether the seizure was [page449] reasonable. Applying Hunter v. Southam Inc., [1984] 2 S.C.R. 145, he stated at pp. 160-61 that:

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

(a)		a system of prior authorization, by an entirely neutral and impartial arbiter who is capable of acting judicially in balancing the interests of the State against those of the individual;
(b)		a requirement that the impartial arbiter must satisfy himself that the person seeking the authorization has reasonable grounds, established upon oath, to believe that an offence has been committed;
(c)		a requirement that the impartial arbiter must satisfy himself that the person seeking the authorization has reasonable grounds to believe that something which will afford evidence of the particular offence under investigation will be recovered; and
(d)		a requirement that the only documents which are authorized to be seized are those which are strictly relevant to the offence under investigation.

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

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

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

15 The learned trial judge next turned his attention to a consideration of s. 17(1), (2) and (8) in light of s. 7 of the Charter. After referring to this Court's decision in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, J. Holland J. stated that ss. 11(c) and 13 of the Charter were specific emanations [page450] of the s. 7 right. Having said this, he considered whether "the principles of fundamental justice" contained in s. 7 included any rights residual to those specifically enumerated in ss. 11(c) and 13.

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

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

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

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

[page451]

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

(b)

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

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

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

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

On the alleged right to remain silent, Grange J.A. held that "the right must be restricted to police inquiries and the like and the trial proceedings themselves"(p. 262).

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

What happens under s. 17 is that an order is issued. An order is of course to be obeyed and if it is obeyed then the consequence is much the same as a seizure under s. 10. But if it is not obeyed no penalty can be [page452] imposed without the matter being considered by an impartial judicial arbiter. Moreover, as appears from Director of Investigation & Research v. Restrictive Trade Practices Com'n et al., supra, the order can be attacked on motion to review before it takes effect. The result of the order is really no different from that consequent upon the issuance of a subpoena duces tecum which can be issued in either civil or criminal proceedings without any requirement of assessing its reasonableness and the conflicting interests of the parties.

. . .

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

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

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

[page453]

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

4. Analysis

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

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

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

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

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

In the revision of 1986 referred to by Estey J. the Act was renamed the Competition Act: see S.C. 1986, c. 26. We are concerned in this case, however, with the pre-1986 legislation which continues [page454] to apply to inquiries commenced before the revision came into force.

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

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

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

[page455]

	(2) Any person summoned under subsection (1) is competent and may be compelled to give evidence as a witness.
	(3) A member of the Commission shall not exercise power to penalize any person pursuant to this Act, whether for contempt or otherwise, unless, on the application of the member, a judge of the Federal Court of Canada or of a superior or county court has certified, as such judge may, that the power may be exercised in the manner disclosed in the application, and the member has given to such person twenty-four hours notice of the hearing of the application or such shorter notice as the judge deems reasonable.
	(4) Any books, papers, records, or other documents produced voluntarily or in pursuance of an order under subsection (1) shall within thirty days thereafter be delivered to the Director, who is thereafter responsible for their custody, and within sixty days after the receipt of such books, papers, records or other documents by him the Director shall deliver the original or a copy thereof to the person from whom such books, papers, records or other documents were received.
	(5) A justice before whom any thing seized pursuant to a search warrant issued with reference to an offence against this Act is brought may, on the application of the Director, order that such thing be delivered to the Director, and the Director shall deal with any thing so delivered to him as if delivery of it had been made pursuant to subsection (4).
	(6) Every person summoned to attend pursuant to this section is entitled to the like fees and allowances for so doing as if summoned to attend before a superior court of the province in which he is summoned to attend.

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

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

25 As can be seen from the above, the Director, on an ex parte application, or a Commission member on his own motion, may compel the attendance of an individual to be examined under oath. That individual may also be compelled to produce records or other documents. The section 17 procedure [page456] may take place in conjunction with a s. 8 inquiry but may also be conducted independently of such inquiry. The Director need not have any belief that a violation of the Act has occurred when applying for a s. 17 order. He is not obliged to disclose the grounds for obtaining the order and he need not disclose the name of the person, if any, who is suspected of having violated the Act. There are no provisions governing the conduct of the hearing. That is left to the person conducting the hearing. A person who refuses to comply with an order under s. 17 can be punished by the Commission on an application to a judge pursuant to s. 17(3). A refusal may constitute an offence under ss. 40, 41 or 46.1 of the Act.

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

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

27 This Court held in Irvine, supra, that s. 20(1) granted a limited right to counsel to those being examined under oath. Counsel can object to improper questions being put to his client and can re-examine his client to clarify the client's testimony. However, counsel is not entitled to be present at the examination of other witnesses and so obviously cannot cross-examine them. With regard to [page457] persons whose conduct is being inquired into under the Act, s. 20(1) gives the Commission a discretion to permit them to be represented by counsel. The language of the section is permissive. It is conceivable, therefore, that a person whose conduct is being inquired into will not be informed of that fact and may not be permitted to have counsel, depending upon how the Commission exercises its discretion.

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

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

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

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

30 Under section 18, the Director can, at any stage of an inquiry, if he is of the opinion that the [page458] evidence discloses an offence, prepare a statement of the evidence and submit it to the Commission and the person against whom the allegations are made. Upon receipt of the statement the Commission is compelled under s. 18(2) to set a place, time and date at which argument on the statement will be heard from the Director and the person to whom the matter relates. After this hearing the Commission is obliged to prepare a report for the Minister. Section 22 outlines other circumstances in which the Commission can prepare a report for the Minister. The Director may also as a result of a s. 17 hearing bring an application pursuant to Part IV.1 of the Act at which time he must prove his case as in a civil trial.

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

Section 7 of the Charter

32 Section 7 of the Charter provides:

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

33 In Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, this Court ruled that s. 7 of the Charter had no application to corporations and was confined to the protection of human beings. Since no individuals were named as parties in that case, s. 7 could not be successfully invoked. However, in this appeal three of the appellants are individuals. If section 17 of the Combines Investigation Act violates these individuals' rights and cannot be justified under s. 1 of the Charter, it is rendered of no force or effect as a result of s. 52 of the Constitution Act, 1982. Since the [page459] Combines Investigation Act does not provide for separate treatment of human beings and corporations, it follows that if s. 17 is of no force or effect in respect of human beings it must also be of no force or effect in respect of corporations. This appeal is therefore distinguishable from the Irwin Toy case. Consequently, the s. 7 issue raised by the appellants must be squarely addressed in this appeal.

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

(a) Life, Liberty and Security of the Person

35 While the concepts of "life, liberty and security of the person" are closely linked in s. 7, it is not necessary for the citizen to show that his right to life, his right to liberty and his right to security of the person have all been violated in order to constitute a breach of the section. It is sufficient that one of them has been violated: see Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. The appellants submit that their liberty and security of the person have been violated because s. 17 compels them to attend before an examiner against their will and give testimony at the risk of punishment for failure to comply with that demand. They argue that their security of the person has been violated also by the fact that governmental authorities, while unable to introduce the s. 17 testimony directly in criminal proceedings, can obtain and utilize derivative evidence in such criminal proceedings. They assert as well that the s. 17 investigative process constitutes [page460] a state-imposed trauma which adversely affects their liberty and security of the person.

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

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

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

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

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

37 It is not necessary for me to attempt to determine the perimeters of "liberty" and "security of the person". Clearly, they must be subject to some limits; otherwise any tenuous restriction placed on an individual would constitute a violation of liberty and security of the person. There is, however, in my view a vast difference between a general regulatory scheme (such as the rules of the road for motorists) designed to give some order to human behaviour and a state-imposed compulsion on an individual to appear at proceedings against [page461] his will and testify on pain of punishment if he refuses. The difference is even greater, in my view, where the compelled testimony given by the individual may be used to build a case against him in what is, in effect, a subsequent criminal prosecution. It is my opinion that this compulsion, linked as it is to the criminal process, touches upon the physical integrity of the individual as well as that individual's reasonable expectation of privacy. The fact that the s. 17 procedure is in itself "investigatory" as opposed to "prosecutorial" seems to me to be irrelevant when a criminal prosecution is a potential consequence of the s. 17 investigation. Nor do I think that the fact that the individual may challenge the proceedings by way of judicial review or under s. 17(3) means that his rights are not violated. Such considerations may be relevant in considering whether the principles of fundamental justice have been violated or whether the legislation is sustainable under s. 1 of the Charter but are not relevant in determining whether the right to liberty and security of the person has been violated. I would conclude therefore that s. 17 of the Act violates a person's right to liberty and security of the person within the meaning of s. 7 of the Charter.

(b) The Principles of Fundamental Justice

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

Sections 8 to 14, in other words, address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. They are designed to protect, in a specific manner and setting, the right to life, liberty and security of the person set forth in s. 7. It [page462] would be incongruous to interpret s. 7 more narrowly than the rights in ss. 8 to 14. The alternative, which is to interpret all of ss. 8 to 14 in a "narrow and technical" manner for the sake of congruity, is out of the question (Law Society of Upper Canada v. Skapinker, supra, at p. 366).

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

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

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

[page463]

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

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

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

11. Any person charged with an offence has the right

. . .

(c)

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

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

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

(a)

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

[page464]

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

. . .

(d)

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

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

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

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

[page465]

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

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

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

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

In sum, the Supreme Court of Canada has recognized that the Canadian Bill of Rights enjoys constitutional or quasi-constitutional stature. As such, a purposive approach to its interpretation is presumably as appropriate as it is for the Charter or for other enactments concerned with human rights. The purpose of the Canadian Bill of Rights disclosed by its long title -- "An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms" -- is shared by the Charter. Accordingly, it might be expected that evolution of the two instruments will follow roughly parallel lines over the course of time, with the possibility of [page466] earlier decisions under the Bill attracting reconsideration in light of authoritative pronouncements concerning the scope of equivalent language in the Charter. Be that as it may, to the extent that the purposive approach to interpretation provides guidance, it is not evident why the framework of analysis applied to the Bill in Curr is, on principle, unsuitable for the Charter.