A-1292-83
John A. Ziegler, Maple Leaf Gardens Limited,
Northstar Hockey Partnership, Le Club de
Hockey Canadien Inc., Meadowlanders Inc.,
Nassau Sports Limited, New York Rangers
Hockey Club, Philadelphia Hockey Club Inc.,
Pittsburgh Penguins Inc., Le Club de Hockey les
Nordiques (1979) Inc., Boston Professional
Hockey Association Inc., Niagara Frontier
Hockey Corporation, Calgary Flames Hockey
Club, Chicago Blackhawk Team Inc., Detroit Red
Wings Inc., Edmonton World Hockey Enterprises
Ltd., Hartford Whalers Hockey Club, California
Sports, Washington Hockey Limited Partnership,
8 Hockey Ventures Inc., Northwest Sports Enter
prises Limited, John Krumpe, Paul Martha,
Marcel Aubut, Paul Mooney, Robert Swados,
William Wirtz, Brian O'Neill, Seymour Knox,
Michael Bitch, Howard Baldwin, Dr. Gerry Buss,
George Gund, Robert Butera, Harold Ballard, and
Barry Shenkarow (Appellants)
v.
Lawson A. W. Hunter, Director of Investigation
and Research appointed under the Combines
Investigation Act and O. G. Stoner, the Chairman
of the Restrictive Trade Practices Commission
appointed under the Combines Investigation Act
(Respondents)
Court of Appeal, Le Dain, Marceau and Huges-
sen, JJ.—Montreal, October 27, 28; Ottawa,
November 29, 1983.
Evidence — Subpoenas under Combines Investigation Act s.
17 requiring production of extensive documentation — S. 17
not violating Bill of Rights s. 2(d) protection against self-
incrimination — Common law protection against giving of
testimony abolished — S. 2(d) and Canada Evidence Act s. 5
protecting against subsequent use — Ss. 5, 2(d) not protecting
in respect of compelled production of documents — Derivative
evidence — Charter s. 13 providing requisite protection —
Whether s. 17 order search or seizure as per Charter s. 8 —
Whether seizure unreasonable — No violation of s. 8 —
Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 17(1),
20(2) (as am. by S.C. 1974-75-76, c. 76, s. 8) — Canadian Bill
of Rights, R.S.C. 1970, Appendix III, s. 2(d) — Canada
Evidence Act, R.S.C. 1970, c. E-10, s. 5 — Canadian Charter
of Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 8,
13, 26— U.S. Const., Amends. IV, V.
Constitutional law - Charter of Rights - Search or sei
zure - Subpoenas under Combines Investigation Act s. 17
requiring production of extensive documentation - Whether s.
17 order search or seizure as per Charter s. 8 - Whether
seizure reasonable - No violation of s. 8 - Combines Inves
tigation Act, R.S.C. 1970, c. C-23, ss. 17(1), 20(2) (as am. by
S.C. 1974-75-76, c. 76, s. 8) - Canadian Charter of Rights
and Freedoms, being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 2, 7, 8
Individual's Rights Protection Act, R.S.A. 1980, c. 1-2, ss. 21,
22, 23 - U.S. Const., Amend. IV.
Combines - Subpoenas under Combines Investigation Act
s. 17 requiring production of extensive documentation - S. 17
violating neither Bill of Rights protection against self-incrimi
nation nor Charter protection against unreasonable search or
seizure - Combines Investigation Act, R.S.C. 1970, c. C-23,
ss. 8(b)(iii) (as am. by S.C. 1974-75-76, c. 76, s. 4), 15, 17(1),
20(2) (as am. idem, s. 8), 33 - Canadian Bill of Rights,
R.S.C. 1970, Appendix III, s. 2(d) - Canada Evidence Act,
R.S.C. 1970, c. E-10, s. 5 - Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.) ss. 8, 13, 26 - Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18 - U.S.
Const., Amends. IV, V.
Practice - Subpoenas - Duces tecum under Combines
Investigation Act s. 17 requiring production of extensive docu
mentation - S. 17 not violating Bill of Rights s. 2(d) protec
tion against self-incrimination - S. 2(d) and Canada Evi
dence Act s. 5 not protecting in respect of compelled
production of documents - Charter s. 13 providing requisite
protection - Whether s. 17 order search or seizure as per
Charter s. 8 - Whether seizure reasonable - No violation of
s. 8 - Combines Investigation Act, R.S.C. 1970, c. C-23, ss.
17(1), 20(2) (as am. by S.C. 1974-75-76, c. 76, s. 8) -
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s. 2(d) -
Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5 - Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), ss. 8, 13, 26 - U.S. Const., Amends. IV, V.
The National Hockey League grouped together twenty
professional hockey teams situated in Canada and the United
States. Each of the appellants was either a corporation or
partnership which operated a member team, or an individual
associated with the League or with a particular team. The
respondent Director commenced an inquiry into the possibility
that a monopoly existed in relation to the production and
operation of major-league professional hockey. On the Direc-
tor's application, the respondent Chairman made orders under
section 17 of the Combines Investigation Act, which orders
directed the individual appellants to appear for examination
and, in a duces tecum provision, required them to produce
extensive documentation.
The appellants applied to the Trial Division, seeking either to
prohibit the respondents from acting upon the section 17 orders
or, in the alternative, to quash these orders. The application
was dismissed, whereupon the present appeal was instituted.
The appeal focussed upon two issues: (A) whether an order for
production made under section 17 violated paragraph 2(d) of
the Bill of Rights; (B) whether a section 17 order for produc
tion constituted an unreasonable search or seizure within the
meaning of section 8 of the Charter.
Held, the appeal should be dismissed.
Per Le Dain J.: (A) There is authority to the effect that the
common law privilege of a witness against self-incrimination
extended to the production of documents. Paragraph 2(d) of
the Canadian Bill of Rights, however, does not purport either
to preserve or to guarantee the common law privilege. It
contemplates that a person may be compelled to give self-
incriminating evidence, and protects only against the use of
such evidence in subsequent criminal proceedings. Protection of
this nature existed at the time of the Bill's adoption—by virtue
of section 5 of the Canada Evidence Act.
Both paragraph 2(d) and subsection 5(2) are concerned with
protection of the witness against self-incrimination by testimo-
E y. Subsection 5(2) has been held not to protect against
self-incrimination by the compelled production of documents,
and clearly it does not protect against self-incrimination by
derivative evidence either. The same limitations apply to the
guarantee of protection in paragraph 2(d).
The protection which paragraph 2(d) guarantees is provided
by subsection 20(2) of the Combines Investigation Act. There
fore section 17 does not contravene paragraph 2(d).
(B) An order in the nature of a subpoena duces tecum is
neither a search nor a seizure within the meaning of section 8
of the Charter. The opinion on this point expressed in the
Alberta Blue Cross Plan case is mistaken.
It has been observed that a subpoena duces tecum is not a
true search or seizure within the meaning of the Fourth
Amendment to the Constitution of the United States, and while
the requirements that have been imposed with respect to such
subpoenas in the United States have been referred to as
"Fourth Amendment" limitations, there is some question as to
whether that provision is their true constitutional basis. In any
event, these requirements, rooted as they are in American law,
should not be treated as bearing upon the constitutional validity
of section 17. If requirements like them are, in some degree or
other, properly applicable to the terms of specific subpoenas
duces tecum, then it may be observed that the section 17 orders
at issue herein do comply with the American requirements.
Per Marceau J.: (A) With the enactment of section 5 of the
Canada Evidence Act, Parliament ousted the common law
privilege against self-incrimination, adopting in its stead the
rule that self-incriminating testimony cannot be used in subse
quent criminal proceedings against the witness. The enacting of
paragraph 2(d) of the Canadian Bill of Rights was not an
expression of a parliamentary intention to revive the common
law privilege. The purpose behind the adoption of the Bill of
Rights was not to establish new rights and freedoms, but rather
to enshrine those already recognized. Accordingly, the protec
tion afforded by paragraph 2(d) cannot be wider than that
which existed when paragraph 2(d) was enacted—i.e., the
protection that was to be found in section 5 of the Canada
Evidence Act.
The appellants maintain that subsection 20(2) of the Com
bines Investigation Act does not provide in full measure the
protection guaranteed by paragraph 2(d), inasmuch as subsec
tion 20(2) affords no protection against the use of documents.
They refer to the judgment of Mr. Justice Dickson in the
Marcoux case, and purport to find there a recognition that the
paragraph 2(d) privilege does extend beyond the limits estab
lished by the Canada Evidence Act, requiring protection in the
case of a production of documents. Read correctly, though, the
judgment contains no such recognition. The protection given by
subsection 20(2) does satisfy the demands of paragraph 2(d),
and the latter provision is not infringed by the section 17
orders.
(B) The section 17 orders issued in this case are not equiva
lent to a search and seizure. A search-and-seizure order is one
which confers upon a public officer authority to force his way,
at any time and without warning, into the home or onto the
business premises of another person, and to search for and seize
things which he finds there. The execution of such an order
constitutes a situation completely different from that which
obtains upon the service of a subpoena duces tecum. They have
nothing in common with respect to intrusion into the home and
upon the privacy of the individual, and any perceived need to
maintain control over the issuance of subpoenas duces tecum is
in no way comparable to the necessity of protecting citizens and
their homes against a possible abuse of search powers.
On the other hand, in the Alberta Blue Cross Plan case, the
Alberta Court of Appeal expressed the view that a forced
production of documents during an administrative inquiry
amounts to a seizure; and at least for the purposes of section 8
of the Charter, this view is correct. The essence of a (mere)
seizure is a public authority's taking hold of a thing against the
will of the person to whom it belongs. Whether the person is
compelled to deliver up the thing himself is irrelevant.
Nonetheless, the subpoenas in question do not contravene
section 8, because they will not result in an unreasonable
seizure. This conclusion is based upon: the criteria of reason
ableness elaborated in the United States; the nature of the
inquiry involved; and the fact that all of the documents at issue
are ones which belong to corporations.
Per Hugessen J.: (A) Paragraph 2(d) of the Canadian Bill of
Rights requires only that if a witness is compelled to give
self-incriminating evidence, the compulsion must be accom
panied by a protection against the use of such evidence against
the witness.
It is very doubtful that this paragraph 2(d) privilege applies
to the production of documents. According to the judgment of
Dickson J. in Marcoux, it does not so apply. The simple fact
that a witness is compelled to produce documents would not
seem to imply any basis in logic or policy for extending the
privilege to those documents. The common law rule is that
documents and other things found in the possession of an
accused are admissible against him as long as they are relevant,
and while it may develop that the Charter has modified this
principle, the Canadian Bill of Rights has not done so. Para
graph 2(d) does not entitle a person to any greater protection
than is afforded by subsection 5(2) of the Canada Evidence
Act, and since subsection 5(2) protects with respect to the
"answer" given to a "question" it does not encompass the
production of documents.
At any rate, in the case at bar it is not strictly necessary to
determine the extent of the paragraph 2(d) privilege. The scope
of section 13 of the Charter is at least as great as that of
paragraph 2(d). Consequently, section 13 provides the protec
tion which paragraph 2(d) requires, whether or not the protec
tion extends to a compulsory production of documents.
(B) If, in the Alberta Blue Cross Plan case, the provincial
Court of Appeal was saying that every order for production of
documents in the form of a subpeona duces tecum should, for
the purposes of the Charter, be regarded as a seizure, then the
Court was in error. That proposition would be contrary to both
American and Canadian authority. It would also do violence to
the ordinary meanings of the words "search" and "seizure",
each of which words connotes an intrusion into the citizen's
home or place of business by another person, who looks for and
removes documents or other things. No valid analogy can be
drawn between the order provided for by subsection 17(1),
which is a classic example of a subpoena duces tecum, and the
searches and seizures envisaged by section 8.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Curr v. The Queen, [1972] S.C.R. 889; 26 D.L.R. (3d)
603.
CONSIDERED:
Marcoux et al. v. The Queen, [1976] 1 S.C.R. 763;
Alberta Human Rights Commission v. Alberta Blue
Cross Plan (1983), 48 A.R. 192; 1 D.L.R. (4th) 301
(C.A.); Miller et al. v. The Queen, [1977] 2 S.C.R. 680;
70 D.L.R. (3d) 324; Southam Inc. v. Dir. of Investigation
& Research, [1983] 3 W.W.R. 385 (Alta. C.A.); Thom-
son Newspapers Ltd. et al. v. Hunter, Director of Investi
gation and Research et al. (1983), 73 C.P.R. (2d) 67
(F.C.T.D.); R. v. McKay (1971), 4 C.C.C. (2d) 45 (Man.
C.A.); Oklahoma Press Publishing Co. v. Walling, 327
U.S. 186 (1946).
REFERRED TO:
R. v. Simpson et al. (1943), 79 C.C.C. 344 (B.C.C.A.);
Klein v. Bell, [1955] S.C.R. 309; Tass v. The King,
[1947] S.C.R. 103; A.G. Que. v. Côté (1979), 8 C.R. (3d)
171 (Que. C.A.); Stickney v. Trusz (1973), 16 C.C.C.
(2d) 25 (Ont. H.C.), affirmed (1974), 28 C.R.N.S. 125
(Ont. C.A.); Regina v. Crooks (1982), 39 O.R. (2d) 193
(H.C.), affirmed (sub nom. Re Crooks and The Queen)
(1982), 2 C.C.C. (3d) 57; 143 D.L.R. (3d) 601; R. v.
Judge of the General Sessions of the Peace for the
County of York, Ex parte Corning Glass Works Ltd.,
[1971] 2 O.R. 3 (C.A.); Canadian Fishing Company
Limited et al. v. Smith et al., [1962] S.C.R. 294; Stevens,
et al. v. Restrictive Trade Practices Commission, [1979]
2 F.C. 159 (T.D.); Rolbin v. The Queen (1982), 2 C.R.R.
166 (Que. S.C.); R. v. Brezack (1949), 96 C.C.C. 97
(Ont. C.A.); A.G. for Quebec v. Begin, [1955] S.C.R.
593; Hogan v. The Queen, [1975] 2 S.C.R. 574; D'Ivry v.
World Newspaper Co. of Toronto et al. (1897), 17 P.R.
387 (Ont. C.A.); Attorney-General v. Kelly (1916), 28
D.L.R. 409 (Man. C.A.); Webster v. Solloway, Mills &
Co., [1931] 1 D.L.R. 831 (Alta. C.A.); Staples v. Isaacs,
[1940] 3 D.L.R. 473 (B.C.C.A.); Rio Tinto Zinc Corpo
ration and Others v. Westinghouse Electric Corporation,
[1978] A.C. 547 (H.L.); Rank Film Distributors Ltd v
Video Information Centre, [1981] 2 All ER 76 (H.L.);
Lilburn's Trial (1637), 13 How. St. Tr. 1315 (U.K.
Parlt.); Thompson v. The King, [1918] A.C. 221 (H.L.);
Kuruma v. The Queen, [1955] A.C. 197 (P.C.); Schmer-
ber v. California, 384 U.S. 757 (1966); In re Horowitz,
482 F.2d 72 (2d Cir. 1973); F.T.C. v. Texaco, Inc., 555
F.2d 862 (D.C. Cir. 1977); F.T.C. v. Carter, 464 F. Supp.
633 (D.D.C. 1979); Dunham v. Ottinger, 154 N.E. 298
(N.Y.C.A. 1926).
COUNSEL:
A. M. Gans, J. L. Pelletier and J. J. Chap-
man for appellants.
B. Finlay, Q.C. and S. Fréchette for
respondents.
SOLICITORS:
Miller, Thomson, Sedgewick, Lewis & Healy,
Toronto, and Aubut, Chabot, Quebec City,
for appellants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I have had the advantage of read
ing the reasons for judgement of my brothers
Marceau and Hugessen. I agree with them that
the appeal should be dismissed.
The appellants' contention based on paragraph
2(d) of the Canadian Bill of Rights [R.S.C. 1970,
Appendix III] is that section 17 of the Combines
Investigation Act [R.S.C. 1970, c. C-23], under
which the orders in the nature of subpoenas duces
tecum were made, is rendered inoperative because,
when read with subsection 20(2) of the Act [rep.
and sub. S.C. 1974-75-76, c. 76, s. 8], it authorizes
the Restrictive Trade Practices Commission to
compel a person to give evidence without the "pro-
tection against self crimination" guaranteed by
paragraph 2(d), which, it is contended, includes
protection against self-incrimination by the com
pelled production of documents and by derivative
evidence.
It is clear that subsection 20(2) of the Combines
Investigation Act, which expressly provides for the
degree of protection against self-incrimination that
a witness is to enjoy in obeying an order made
under section 17, does not provide protection
against self-incrimination by the compelled pro
duction of documents and by derivative evidence.
It compels a witness to give evidence and to pro
duce documents in obedience to such an order, but
it protects him only from the use against him in
subsequent criminal proceedings of any oral evi
dence which he is required to give. Subsection
20(2) is as follows:
20....
(2) No person shall be excused from attending and giving
evidence and producing books, papers, records or other docu
ments, in obedience to the order of a member of the Commis
sion, on the ground that the oral evidence or documents
required of him may tend to criminate him or subject him to
any proceeding or penalty, but no oral evidence so required
shall be used or receivable against such person in any criminal
proceedings thereafter instituted against him, other than a
prosecution for perjury in giving such evidence or a prosecution
under section 122 or 124 of the Criminal Code in respect of
such evidence.
The question is whether the "protection against
self crimination" referred to in paragraph 2(d) of
the Canadian Bill of Rights includes protection
against self-incrimination by the compelled pro
duction of documents and by derivative evidence.
The appellants, in their contention that it does,
laid particular stress on the common law privilege
of a witness against self-incrimination. Certainly,
there is authority to support the contention that
the . privilege, in the proceedings to which it
applied, extended to the production of documents.
See R. v. Simpson et al. (1943), 79 C.C.C. 344
(B.C.C.A.), and Klein v. Bell, [1955] S.C.R. 309.
As support in principle for this view of the scope of
the common law privilege the appellants also
referred to the cases of Rio Tinto Zinc Corpora
tion and Others v. Westinghouse Electric Corpo
ration, [1978] A.C. 547 (H.L.) and Rank Film
Distributors Ltd v Video Information Centre,
[1981] 2 All ER 76 (H.L.), applying the terms of
subsection 14(1) of the Civil Evidence Act 1968,
1968, c. 64 (U.K.), which was referred to as a
modern statutory recognition of long-established
principle, and to the application of the United
States Fifth Amendment protection against self-
incrimination to the enforced production of docu
ments, as indicated in Schmerber v. California,
384 U.S. 757 (1966). But paragraph 2(d) of the
Canadian Bill of Rights does not purport to pre
serve or guarantee the common law privilege of a
witness against self-incrimination, whatever its
scope might have been. It contemplates that a
person may be compelled to give evidence which
may tend to incriminate him, so that the protec
tion referred to can only be protection against the
use of his evidence against him in subsequent
criminal proceedings. That this is so was affirmed
by Laskin J. (as he then was) in Curr v. The
Queen, [1972] S.C.R. 889; 26 D.L.R. (3d) 603
where he said at page 912 S.C.R., page 623
D.L.R.: "I cannot read s. 2(d) as going any farther
than to render inoperative any statutory or non-
statutory rule of federal law that would compel a
person to criminate himself before a court or like
tribunal through the giving of evidence, witout
concurrently protecting him against its use against
him." At the time the Canadian Bill of Rights was
adopted that kind of protection against self-
incrimination was provided in the law of Canada
by section 5 of the Canada Evidence Act [R.S.C.
1970, c. E-10; formerly R.S.C. 1952, c. 307],
which reads as follows:
5. (1) No witness shall be excused from answering any
question upon the ground that the answer to such question may
tend to criminate him, or may tend to establish his liability to a
civil proceedings at the instance of the Crown or of any person.
(2) Where with respect to any question a witness objects to
answer upon the ground that his answer may tend to criminate
him, or may tend to establish his liability to a civil proceedings
at the instance of the Crown or of any person, and if but for
this Act, or the Act of any provincial legislature, the witness
would therefore have been excused from answering such ques
tion, then although the witness is by reason of this Act, or by
reason of such provincial Act, compelled to answer, the answer
so given shall not be used or receivable in evidence against him
in any criminal trial, or other criminal proceeding against him
thereafter taking place, other than a prosecution for perjury in
the giving of such evidence.
That section removed the common law right of a
witness to refuse to answer a question on the
ground that his answer might tend to incriminate
him and replaced it by protection against the use
of his answer as evidence against him in subse
quent criminal proceedings. It has often been
observed that section 5 of the Canada Evidence
Act abolished or replaced the common law privi
lege of a witness against . self-incrimination, with
out any suggestion that it did not purport to
replace the whole of that privilege. See, for exam
ple, Tass v. The King, [1947] S.C.R. 103, at page
105; A.G. Que. v. Côté (1979), 8 C.R. (3d) 171
(Que. C.A.) at page 175; E. Ratushny, "Is There a
Right Against Self-Incrimination in Canada?"
(1973), 19 McGill L.J. 1, at pages 50 ff.; E.
Ratushny, Self-Incrimination in the Canadian
Criminal Process, 1979, pages 78 ff.; Stickney v.
Trusz (1973), 16 C.C.C. (2d) 25(Ont. H.C.) at
pages 28-29, affirmed (1974), 28 C.R.N.S. 125
(Ont. C.A.). But whatever the precise effect of
subsection 5(1) of the Canada Evidence Act on the
scope of the common law privilege of a witness
against self-incrimination, in my opinion it is the
scope of the protection provided by subsection 5(2)
that is contemplated by paragraph 2(d) of. the
Canadian Bill of Rights. As clearly indicated by
its French version ("contraindre une personne à
témoigner" and "la protection contre son propre
témoignage"), paragraph 2(d) is concerned with
the protection of a witness against self-incrimina
tion by his testimony. This is the concern of sub
section 5(2) of the Canada Evidence Act, which
has been held not to extend to protection against
self-incrimination by the compelled production of
documents: R. v. Simpson et al., supra. It also
clearly does not protect a witness against self-
incrimination by derivative evidence. Cf. Regina v.
Crooks (1982), 39 O.R. (2d) 193 (H.C.), at page
198, affirmed by the Ontario Court of Appeal,
October 7, 1982 [sub nom. Re Crooks and The
Queen (1982), 2 C.C.C. (3d) 57; 143 D.L.R. (3d)
601].
In his contention that the protection against
self-incrimination guaranteed by paragraph 2(d)
extended to the enforced production of documents,
counsel for the appellants placed particular reli
ance on the following passage in the judgment of
Dickson J. in Marcoux et al. v. The Queen, [1976]
1 S.C.R. 763, at page 769:
American jurisprudence on the Fifth Amendment, which
protects a person against being compelled "to be a witness
against himself", and Canadian jurisprudence on the privilege
against self-incrimination, have followed parallel courses, limit
ing the application of the privilege to its historic reach, i.e.
protection against testimonial compulsion. Such a limitation
gives rise to a distinction between coerced oral or documentary
disclosures which fall within the-privilege, and what has been
termed "real or physical" evidence, i.e. physical evidence taken
from a person without his consent, which, broadly speaking,
falls outside the privilege.
The "parallel courses" in the development of the
American and Canadian law on self-incrimination
to which Mr. Justice Dickson referred would
appear to have been chiefly concerned with the
distinction between "testimonial compulsion" and
"physical evidence taken from a person without his
consent", which was what was in issue in that case.
In my respectful opinion he did not intend to
address the question whether paragraph 2(d) of
the Canadian Bill of Rights guaranteed protection
against self-incrimination by the enforced produc
tion or documents, but was merely referring to the
statement of the essential distinction with which he
was concerned, as it is found in American
jurisprudence.
In my opinion section 17 of the Combines Inves
tigation Act is not rendered inoperative by conflict
with paragraph 2(d) of the Canadian Bill of
Rights because subsection 20(2) of the Act pro
vides the protection against self-incrimination
guaranteed by paragraph 2(d). I do not find it
necessary to express an opinion on the scope of the
protection against self-incrimination provided by
section 13 of the Canadian Charter of Rights and
Freedoms [being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)] nor on the effect, if any, of this provision
on paragraph 2(d) of the Canadian Bill of Rights.
The appellants' contention based on section 8 of
the Canadian Charter of Rights and Freedoms is
that section 17 of the Combines Investigation Act
is of no force or effect because it authorizes an
unreasonable search or seizure within the meaning
of section 8 of the Charter. In my opinion an order
in the nature of a subpoena duces tecum is neither
a search nor a seizure within the meaning of
section 8. I am unable, with great respect, to
follow the opinion expressed on this point by the
Alberta Court of Appeal in Alberta Human
Rights Commission v. Alberta Blue Cross Plan
(1983), 48 A.R. 192; 1 D.L.R. (4th) 301. It has
been observed in the United States that a subpo
ena duces tecum is not a true search or seizure
within the meaning of the Fourth Amendment,
and while the requirements of authorized purpose
of investigation, relevance and adequate specifica
tion applied in the judicial enforcement of such
subpoenas are referred to as Fourth Amendment
limitations on the subpoena power, the question
has been raised as to whether the Fourth Amend
ment or the due process clause is the true constitu
tional basis of these requirements. See Oklahoma
Press Publishing Co. v. Walling, 327 U.S. 186
(1946); In re Horowitz 482 F.2d 72 (2d Cir.
1973); and W. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment, 1978, vol. 2,
section 4.13 generally and page 209, note 104, in
particular. Because of their very special foundation
in American constitutional provisions and jurispru
dence I would hesitate to apply these requirements
as constitutional requirements to an administrative
subpoena duces tecum in Canada. I would certain
ly not apply them to the question of the validity or
operative effect of section 17 of the Combines
Investigation Act, which is what is raised by the
appellants' contention based on section 8 of the
Charter. To the extent that requirements like them
are properly applicable to the terms of a particular
subpoena duces tecum, I am of the opinion that
the orders made under section 17 in this case meet
these requirements, as they have been applied to
administrative subpoenas duces tecum in the
American cases. See, for example, F.T.C. v.
Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977);
F.T.C. v. Carter, 464 F. Supp. 633 (D.D.C. 1979).
For these reasons I would dismiss the appeal
with costs.
* * *
The following are the reasons for judgment
rendered in English by
MARCEAU J.: The appellants are all connected
with the National Hockey League (the "League"),
an unincorporated association grouping twenty
professional hockey teams situated in Canada and
in the United States, being either officers, direc
tors and employees of the League or corporations
and partnerships operating the member teams of
the League. During the month of June 1983, the
individual appellants were served with orders
issued under the authority of the Combines Inves
tigation Act, R.S.C. 1970, c. C-23 (hereinafter the
"Act"), requiring them to attend before a member
of the Restrictive Trade Practices Commission, on
July 12, 1983, to give evidence under oath as to
any matters relating to the production and opera
tion of major league professional hockey and the
possible existence therein of a monopolistic situa
tion prohibited by section 33 of the Act. The
summons contained the following duces tecum
provision:
You are further required to produce at the time and place first
above mentioned:
1. All notes, letters, opinions, financial statements, memoranda,
press releases, studies, working papers, analyses, and any other
documentation which is in your possession or under your con
trol which in any way relates to a transfer, sale or termination
of membership, ownership or location of any and all franchises
of the National Hockey League between January 1, 1970, and
the present and without restricting the foregoing the proposed
sale and transfer of the St. Louis Blues from Ralston Purina
Company to Coliseum Holdings Ltd.
2. All notes, letters, opinions, financial statements, memoranda,
press releases, studies, working papers, analyses, and any other
documentation which is in your possession or under your con
trol which in any way relates to applications for any and all
franchises between January 1, 1970 and the present.
3. All notes, letters, opinions, financial statements, memoranda,
press releases, studies, and any other documentation which is in
your possession or under your control which was referred to in
any fashion by members of the Advisory Committee of the
National Hockey League in the performance of their duties in
examining the proposed sale and transfer of the St. Louis Blues
from Ralston Purina Company to Coliseum Holdings Ltd.
4. All financial statements for the last three fiscal years for the
franchise which you represent.
The orders, signed by the respondent Stoner, the
Chairman of the Restrictive Trade Practices Com
mission, had been made under the authority of
section 17 of the Act, in connection with an inqui
ry intitiated by the respondent Hunter, the Direc
tor of Investigation and Research appointed under
the Act, shortly after the refusal by the Governors
of the League to allow the transfer of the St. Louis
Blues franchise to Saskatoon.'
On being served with the orders, the individual
appellants, all businessmen residing at various
locations throughout Canada and the United
States, took the view that they were being subject
ed to excessive inconvenience in being required to
' The provisions of the Act immediately concerned read as
follows [subparagraph 8(b)(iii) rep. and sub. S.C. 1974-75-76,
c. 76, s. 4]:
8. The Director shall
(b) whenever he has reason to believe that
(iii) an offence under Part V or section 46.1 has been or
is about to be committed, or
cause an inquiry to be made into all such matters as he
considers necessary to inquire into with the view of deter
mining the facts.
17. (1) On ex parte application of the Director, or on his
own motion, a member of the Commission may order that
any person resident or present in Canada be examined upon
oath before, or make production of books, papers, records or
other documents to such member or before or to any other
person named for the purpose by the order of such member
and may make such orders as seem to him to be proper for
securing the attendance of such witness and his examination,
and the production by him of books, papers, records or other
documents and may otherwise exercise, for the enforcement
of such orders or punishment for disobedience thereof, all
powers that are exercised by any superior court in Canada
for the enforcement of subpoenas to witnesses or punishment
of disobedience thereof.
search for and produce thousands of documents
and that an unacceptable intrusion upon their
otherwise confidential business dealings was being
attempted. They decided to submit their right to
the Court.
An application was therefore filed in the Trial
Division of this Court seeking an order to prohibit
the respondents from acting upon the orders of the
Chairman and, in the alternative, by way of cer-
tiorari, to quash such orders. When this applica
tion was rejected on August 11, 1983 by the
Associate Chief Justice [Ziegler et al. v. Hunter,
Director of Investigation and Research et al.
(1983), 75 C.P.R. (2d) 222], the appellants
launched the present appeal to this Court.
The appellants contend that the Trial Judge
erred in not holding that the aforesaid orders,
issued pursuant to section 17 of the Act, con
travened the provisions of paragraph 2(d) of the
Canadian Bill of Rights and sections 2, 7 and 8 of
[the Canadian Charter of Rights and Freedoms,
being Part I of] the Constitution Act, 1982, as a
result of which they were of no force or effect.
Their contention is based on two propositions: first,
that all orders made pursuant to section 17 of the
Act are contrary to paragraph 2(d) of the Canadi-
an Bill of Rights because they inevitably offend
against the privilege against self-crimination;
second, that the orders as issued here are contrary
to sections 2, 7 and 8 of the Canadian Charter of
Rights and Freedoms in that they constitute an
intrusion upon the appellants' privacy and an
unreasonable search and seizure. The two proposi
tions, of course, even if they lead to the same
conclusion, relate to two completely distinct
grounds of attack. They can only be examined
separately.
I
The appellants support their proposition that all
orders made under section 17 offend against the
privilege against self-crimination guaranteed by
the Bill of Rights with a reasoning they say is
novel in the sense that it has not yet been submit
ted to a Canadian court. I suppose it might be
more satisfying, because of that, if I take the time
to summarize it as it was presented by counsel and
as I understood it.
The rule against self-crimination, as articulated
in the maxim nemo tenetur seipsum accusare or
prodere, is of long standing in the common law,
counsel first reminds us. It originated as a reaction
to early abuses of inquisitional procedures and
from the leading case of Lilburn's Trial (1637), 13
How. St. Tr. 1315 (U.K.)—where Parliament held
that the Star Chamber had no right to compel
Lilburn, then charged with certain offences, to
submit to interrogation—it developed rapidly and
soon became of such great significance in the
minds of the common law world people that after
the American Revolution, it was made the subject
of the Fifth Amendment to the United States
Constitution. 2 The scope of the rule against self-
crimination at common law, counsel continues, has
been clearly established, in the course of the years,
by the English and American courts: it is now
accepted that the rule extends beyond answers that
could directly criminate the witness, and covers
questions that might be used as a step towards
obtaining evidence and even matters that could
only form a link in the chain of proof; and it is
often considered that the rule must apply not only
to oral questioning but also to the production of
documents of a criminating nature in response to
an order of production.
This common law rule against self-crimination,
counsel goes on, is part of our Canadian law since
2 The Amendment reads thus:
Amendment V [1791]
No person shall be held to answer for a capital, or other
wise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or naval
forces, or in the militia, when in actual service in time of war
or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for
public use, without just compensation.
Incidentally, the history of the rule is dealt with extensively
in Wigmore on Evidence, Vol. 8 (McNaughton rev. 1961),
paragraphs 2250-2251.
the adoption of the Canadian Bill of Rights, which
provides in paragraph 2(d) as follows:
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(d) authorize a court, tribunal, commission, board or other
authority to compel a person to give evidence if he is denied
counsel, protection against self crimination or other constitu
tional safeguards;
This is a provision which accurately reflects the
privilege against self-crimination as a Canadian
derivative of the English common law, and the
provision no doubt applies to the Restrictive Trade
Practices Commission as well as to the Director
investigating an alleged offence under Part V of
the Act: adequate protection against self-crimina-
tion must therefore be given to any person,
individual or corporation suspected of committing
or participating in a specific criminal offence,
summoned to testify before the Director and to
produce documents, books, papers and records. "Is
such protection adequately provided by the Act?"
counsel asks. Certainly not, he argues. It is true
that provisions similar to those enacted by subsec
tion 5(2) of the Canada Evidence Act are found in
subsection 20(2), which says:
20....
(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.
But this subsection does not assure the witness
an immunity coextensive with the privilege and
does not give him the "concurrent" protection
contemplated by Laskin J. (as he then was) in his
reasons for judgment in Curr v. The Queen,
[1972] S.C.R. 889; 26 D.L.R. (3d) 603, at page
619. Indeed, the subsection affords no protection
whatever against the use by the Attorney General
of Canada of the documents produced as well as
the transcript of the testimony given, in deciding
whether or not a prosecution should be launched;
nor against the use of the documents, or of the
derivative evidence flowing from the testimony
given, in criminal proceedings thereafter instituted
against the witness. 3
So counsel presents the conclusion as inevitable:
section 17 of the Act is inoperative in that it
purports to compel witnesses to testify before fed
eral authorities while denying them the protection
against self-crimination enshrined in paragraph
2(d) of the Canadian Bill of Rights.
I do not intend to review each and every one of
the several statements made in that reasoning in
order to express my agreement or disagreement
with respect thereto, although I may say that I
have very serious doubt as to the validity of some
of them. For instance, I question the statement
that at common law the privilege extends to corpo
rations and corporate documents (see Wigmore,
op. cit., paragraph 2259; see the reasons of Arnup
J.A. in R. v. Judge of the General Sessions of the
Peace for the County of York, Ex parte Corning
Glass Works Ltd., [1971] 2 O.R. 3 (C.A.)); and I
am not prepared to accept readily the proposition
that the privilege, with the extension givent to it,
applies unreservedly outside court proceedings in a
mere fact-finding procedure like the one here in
question (see Phipson on Evidence, 11th ed.
(1970), pages 615 and seq.; and as to the character
of the Director's inquiry, see Canadian Fishing
Company Limited et al. v. Smith et al., [1962]
S.C.R. 294).
3 Section 15 of the Act reads thus:
15. (1) The Director may, at any stage of an inquiry, and
in addition to or in lieu of continuing the inquiry, remit any
records, returns or evidence to the Attorney General of
Canada for consideration as to whether an offence has been
or is about to be committed against this Act, and for such
action as the Attorney General of Canada may be pleased to
take.
(2) The Attorney General of Canada may institute and
conduct any prosecution or other proceedings under this Act,
and for such purposes he may exercise all the powers and
functions conferred by the Criminal Code on the attorney
general of a province.
If I consider it unnecessary to address these
particular points any further, it is for the simple
reason that I disagree with the very allegation on
which the appellants' whole reasoning hinges,
namely that the common law privilege against
self-crimination with whatever extension it is given
in England is part of the Canadian law.
It is acknowledged by all authorities that, in
1893, Canada departed from the general common
law doctrine of non-crimination and substituted, in
proceedings within federal jurisdiction, a protec
tion only against use of incriminating testimony in
subsequent criminal proceedings against the wit
ness. This resulted from the enactment by Parlia
ment of section 5 of the Canada Evidence Act,
R.S.C. 1970, c. E-10 4 , which was meant to sub
sume the effects of the rule as it was then under
stood. From that year on, the right against self-
crimination in proceedings within the federal
sphere became a strictly statutory right confined
within the terms of section 5 of the Canada Evi
dence Act and of corollary sections subsequently
incorporated in particular statutes. (See the com
ments of Professor Ratushny in his long study
entitled "Is There A Right Against Self-Incrimi
nation in Canada?" (1973), 19 McGill L.J. 1, as
well as those in his book, Self-Incrimination, at
pages 52 and seq.; see among several others the
interesting decision of R. v. Simpson et al. (1943),
^ It reads as follows:
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 crimi-
nate him, or may tend to establish his liability to a civil
proceeding at the instance of the Crown or of any person,
and if but for this Act, or the Act of any provincial legisla
ture, the witness would therefore have been excused from
answering such question, then although the witness is by
reason of this Act, or by reason of such provincial Act,
compelled to answer, the answer so given shall not be used or
receivable in evidence against him in any criminal trial, or
other criminal proceeding against him thereafter taking
place, other than a prosecution for perjury in the giving of
such evidence.
79 C.C.C. 344 (B.C.C.A.).) Counsel for the appel
lant is, of course, well aware of that but he sug
gests, as explained above, that by enacting para
graph 2(d) of the Canadian Bill of Rights in 1960,
Parliament expressed its will to revert to the
common law privilege, thereby putting an end to
the period during which the effects of the privilege
in Canada had been limited by statute.
That suggestion is, to me, simply unacceptable.
The very reading of the Canadian Bill of Rights,
including its preamble, makes it clear that the
purpose of Parliament in enacting it was not to
adopt new fundamental rights and freedoms
derived from the principles accepted in our society;
it was to enshrine those rights and freedoms
already recognized and give them the prominence
they deserve. In Miller et al. v. The Queen, [1977]
2 S.C.R. 680; 70 D.L.R. (3d) 324, Mr. Justice
Ritchie speaking for himself and four other mem
bers of the Court states as follows (at pages 703-
704 S.C.R., page 343 D.L.R.):
I subscribe to the analysis of the meaning and effect of ss. 1
and 2 of the Bill of Rights to be found in the reasons for
judgment of Mr. Justice Martland, speaking for the majority of
this Court in The Queen v. Burnshine ([1975] 1 S.C.R. 693), at
p. 705 where, after noting that the Bill of Rights "by its
express wording .... declared and continued existing rights and
freedoms", he went on to say:
It was those existing rights and freedoms which were not to
be infringed by any federal statute. Section 2 did not create
new rights. Its purpose was to prevent infringement of exist
ing rights. It did particularize in paras. (a) to (g), certain
rights which were a part of the rights declared in s. 1 ....
The "protection against self crimination" con
templated by paragraph 2(d) of the Canadian Bill
of Rights cannot be wider and more extensive than
that considered, in 1960, as being adequate, that is
to say the protection afforded by the Evidence Act.
Counsel for the appellant referred to a passage in
the reasons of Mr. Justice Dickson, delivering the
judgment of a nine-man Court, in the case of
Marcoux et al. v. The Queen, [1976] 1 S.C.R.
763, in which the learned Justice (at page 769)
speaks of the parallel courses followed by the
Canadian jurisprudence and the American juris
prudence in relation to the privilege and even
makes allusion to the possibility of documentary
disclosure being covered by the rule. 5 Counsel
would see in that passage a recognition that the
scope of the privilege goes beyond the limits estab
lished by the Canadian Evidence Act. I think, with
respect, that counsel misread the passage referred
to. The parallel with the American jurisprudence
is made to explain that both have followed a
course "limiting the application of the privilege to
its historic reach, i.e. protection against testimoni
al compulsion"; and the reference to "coerced ...
documentary disclosures" appears to be referring
to forms of testimony reduced to writing, such as
interrogatories or affidavits. Indeed, in the very
first paragraph of the part of his reasons dealing
with the scope of the privilege in which is found
the passage referred to by counsel, the learned
Justice had made a general and unequivocal state
ment as follows (at page 768):
The limit of the privilege against self-incrimination is clear.
The privilege is the privilege of a witness not to answer a
question which may incriminate him. That is all that is meant
by the Latin maxim nemo tenetur seipsum accusare, often
incorrectly advanced in support of a much broader proposition.
and in the following paragraph, after referring to
previous cases, he quoted with approval [at page
768] the statement of Laskin J., as he then was, in
Curr v. The Queen (already above referred to),
where he said (at page 912 S.C.R., page 623
D.L.R.):
... I cannot read s. 2(d) as going any farther than to render
inoperative any statutory or non-statutory rule of federal law
that would compel a person to criminate himself before a court
or like tribunal through the giving of evidence, without concur
rently protecting him against its use against him.
The first proposition advanced by the appellants
is to be rejected. The orders issued pursuant to
section 17 of the Act do not offend against para-
s The passage reads thus:
American jurisprudence on the Fifth Amendment, which
protects a person against being compelled "to be a witness
against himself", and Canadian jurisprudence on the privi
lege against self-incrimination, have followed parallel
courses, limiting the application of privilege to its historic
reach, i.e. protection against testimonial compulsion. Such a
limitation gives rise to a distinction between coerced oral or
documentary disclosures which fall within the privilege, and
what has been termed "real or physical" evidence, i.e. physi
cal evidence taken from a person without his consent, which,
broadly speaking, falls outside the privilege.
graph 2(d) of the Bill of Rights. The protection
given to the witness by subsection 20(2) of the Act
is protection "concurrent" with the privilege
against self-crimination as it is contemplated and
defined by Canadian law. (Compare Stevens, et al.
v. Restrictive Trade Practices Commission, [1979]
2 F.C. 159 (T.D.).)
II
The appellants' second proposition, namely that
the orders as issued constitute an encroachment on
their constitutional rights to privacy and security
against unreasonable search and seizure, is formu
lated as if three different sections of the Canadian
Charter of Rights and Freedoms would come into
play: sections 2, 7 and 8, which read as follows:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable
search or seizure.
The appellants, however, did not explain why sec
tions 2 and 7 were specifically referred to nor do I
see how these sections could support the proposi
tion independently of section 8. Indeed, counsel's
. argument was essentially that the orders as issued,
because of their width and burdensome nature,
were equivalent to a search and seizure of a type
prohibited by section 8 of the Charter if the princi
ples set ôut by the Alberta Court of Appeal in
Southam Inc. v. Dir. of Investigation & Research,
[1983] 3 W.W.R. 385, and later by the Trial
Division of this Court, in Thomson Newspapers
Ltd. et al. v. Hunter, Director of Investigation and
Research et al. (judgment by Collier J. dated July
6, 1983, not yet reported [now reported at 73
C.P.R. (2d) 67]) are to be applied. In fact, I think
the issue raised by the proposition is more complex
but, in any event, the only section of the Charter
properly involved is section 8.
The appellants' proposition that the orders vio
late their constitutional rights under section 8 of
the Charter, requires, in my view, that two ques
tions be examined.
The first, strictly suggested by counsel's submis
sion, is whether the orders, as issued, can be seen
as the equivalent of a search-and-seizure proce
dure, so as to create a situation the admissibility of
which under section 8 must be verified according
to the guidelines defined in the Southam and
Hunter cases. I do not think that a proper reading
of the reasons given by Mr. Justice Prowse in the
Alberta Court of Appeal and by Mr. Justice Col
lier in the Trial Division can really leave this issue
open. It is evident that the essential characteristic
of the situation created by a search-and-seizure
order (and clearly the only one that explains the
reaction of both Judges) is that a public officer is
there bestowed with authority to force his way, at
any time suitable to him and without warning, into
the home or business premises of a person and
search for and seize documents or things that he
may lay his hands on. Such a characteristic is
absolutely alien to the situation resulting from the
service of a subpoena duces tecum, whatever the
nature and the number of the documents asked
for. The two situations have nothing in common as
regards the intrusion into the home and privacy of
an individual. The necessity to protect the citizens
and their homes against a possible abuse of search
powers in no way compares with the need that
might be felt of keeping some control over the
issuance of subpoenas duces tecum.
There is, however, another issue, raised by the
appellants' proposition, that cannot be so easily
disposed of. This issue is whether the orders here
attacked should not be seen as the equivalent of a
seizure and an unreasonable one within the mean
ing of section 8 of the Charter. The issue arises
because section 8 not only prohibits an unreason
able "search and seizure" but also an unreasonable
"mere seizure", the two words being connected in
the text by the disjunctive particle "or", not
"and".
In their very recent decision in the case of
Alberta Human Rights Commission v. Alberta
Blue Cross Plan (a decision dated September 8,
1983, not yet reported [now reported at 48 A.R
192; 1 D.L.R. (4th) 301]), five judges of the Court
of Appeal of Alberta did not hesitate [at page 195
A.R., page 307 D.L.R.] to "... accept the view
that a forced production of documents in a civil
proceedings [sic], or during an administrative
inquiry, is a seizure." Neither do I, at least for the
purpose of section 8 of the Charter. It is the taking
hold by a public authority of a thing belonging to a
person against that person's will, that constitutes
the essence of a seizure and the fact that the
person is or is not forced to hand over the thing
himself appears to me irrelevant. So the only real
difficulty raised by the issue is whether the seizure
that will necessarily follow the execution of the
orders is reasonable within the meaning of the
Charter.
The provisions of section 8 of the Charter corre
spond to those of the Fourth Amendment of the
United States Constitution. 6 The position of the
United States Supreme Court with regard to sub
poenas issued by bodies exercising investigative
powers should be directly on point and of incompa
rable value as a guide. W. R. LaFave in his
treatise on the Fourth Amendment, Search and
Seizure (1978), states in chapter 4 (pages 192-
193) as follows:
The leading case on the Fourth Amendment limitations on
the subpoena power is Oklahoma Press Publishing Co. v.
Walling, (327 U.S. 186 (1946)), which lower courts have relied
upon as establishing the standards which govern subpoenas
issued by administrative agencies, grand juries, prosecutors,
and legislative committees. In Walling, the Federal Wage and
Hour Administrator subpoenaed the business records of
Oklahoma Press in order to determine whether the publisher
was subject to the minimum wage requirements of the Fair
6 Which reads as follows:
Amendment IV [1791]
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or affirma
tion, and particularly describing the place to be searched,
and the persons or things to be seized.
Labor Standards Act and whether the publisher was violating
the Act. The Court, recognizing the confusion in the case law
as to the applicability of the Fourth Amendment, stated that
compliance with a subpoena presented no question of an actual
search or seizure, and that the Fourth Amendment was appli
cable, if at all, only by analogy because the subpoena merely
involved a "so-called `figurative' or `constructive' search."
Consequently, the Court framed the issue as one of "balancing
the public interest against private security" and held that the
"gist of the protection is in the requirement that the disclosure
sought shall not be unreasonable." Elaborating on the reason
ableness, the Court set out three guidelines. First, no specific
crime need be charged; "it is enough that the investigation be
for a lawfully authorized purpose, within the power of Congress
to demand." Second, because no specific crime need be alleged,
probable cause to suspect the commission of a crime is unneces
sary. Instead, a subpoena is valid if "the documents sought are
relevant to the inquiry." Third and finally, the requirement of
the Fourth Amendment warrant clause of a particular descrip
tion of the person or items to be seized requires only that
subpoenas contain "a specification of the documents to be
produced adequate, but not excessive, for the purposes of the
relevant inquiry." Although the Court specified these three
relevant areas of inquiry to determine the validity of a subpo
ena under the Fourth Amendment, the Court also cautioned
that the judicial inquiry should be fact-sensitive: "Necessarily
... this cannot be reduced to formula; for relevancy and
adequacy or excess in the breadth of a subpoena are matters
variable in relation to the nature, purposes and scope of the
inquiry." Nevertheless, the three Walling standards, which the
Court has continued to cite with approval, provide a framework
for analyzing the scope that the courts subsequently have given
to the Fourth Amendment's protection against compelled pro
duction of papers.
I confess having been at first somewhat dis
mayed at the number of documents involved, many
thousands, but after considering some interesting
American cases referred to by counsel for the
respondents, notably F.T.C. v. Texaco, Inc., 555
F.2d 862 (D.C. Cir. 1977), and F.T.C. v. Carter,
464 F. Supp. 633 (D.D.C. 1979), I have come to
understand that the number of documents had to
be in direct relation to the nature and extent of the
inquiry being carried out. Moreover, we were told,
during the hearing, that all of the documents
sought were corporate documents, i.e. documents
belonging to corporations, not to individuals.
Applying the principles set forth by the American
jurisprudence, which I consider altogether reason
able, and considering the nature of the inquiry
involved as well as the fact that the documents are
corporate documents, I do not think that the sub
poenas duces tecum here in question can be said to
be unreasonable and in breach of section 8 of the
Charter.
The second proposition advanced by the appel
lants is therefore, in my view, as unacceptable as
the first one. The impugned orders do not infringe
upon their constitutional rights any more than they
would be prohibited by paragraph 2(d) of the
Canadian Bill of Rights.
I would therefore deny the appeal.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This is an appeal against an
order of Jerome A.C.J., dated August 11, 1983
(reasons filed August 9, 1983) [75 C.P.R. (2d)
222], dismissing an application brought by the
appellants for prohibition and certiorari pursuant
to section 18 of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10].
The appellants are all intimately connected with
the National Hockey League, being either mem
bers of the League or officers, directors or
employees of members or of the League itself.
The respondent Hunter is the Director of Inves
tigation and Research under the Combines Inves
tigation Act, R.S.C. 1970, c. C-23, and the
respondent Stoner is the Chairman of the Restric
tive Trade Practices Commission created under
that Act.
Pursuant to subparagraph 8(b)(iii) of the Act
[enacted by S.C. 1974-75-76, c. 76, section 4], the
Director has started an enquiry into a possible
offence against section 33 of the Act in the form of
a monopoly relating to the production and opera
tion of major league professional hockey. On the
Director's application, the Chairman has issued
subpoenas, pursuant to section 17 of the Act,
directed to each of the individual appellants,
requiring them to appear and give evidence before
a member of the Commission. Such subpoenas are
accompanied by a duces tecum in the following
terms:
You are further required to produce at the time and place first
above mentioned:
1. All notes, letters, opinions, financial statements, memoranda,
press releases, studies, working papers, analyses, and any other
documentation which is in your possession or under your con
trol which in any way relates to a transfer, sale or termination
of membership, ownership or location of any and all franchises
of the National Hockey League between January 1, 1970, and
the present and without restricting the foregoing the proposed
sale and transfer of the St. Louis Blues from Ralston Purina
Company to Coliseum Holdings Ltd.
2. All notes, letters, opinions, financial statements, memoranda,
press releases, studies, working papers, analyses, and any other
documentation which is in your possession or under your con
trol which in any way relates to applications for any and all
franchises between January 1, 1970 and the present.
3. All notes, letters, opinions, financial statements, memoranda,
press releases, studies and any other documentation which is in
your possession or under your control which was referred to in
any fashion by members of the Advisory Committee of the
National Hockey League in the performance of their duties in
examining the proposed sale and transfer of the St. Louis Blues
from Ralston Purina Company to Coliseum Holdings Ltd.
4. All financial statements for the last three fiscal years for the
franchise which you represent.
Both before the Trial Division and again in
appeal, the appellants attacked these subpoenas
upon two quite distinct constitutional grounds, the
first being founded in section 8 of the Canadian
Charter of Rights and Freedoms, Constitution
Act, 1982, Schedule B [Canada Act 1982], and
the second in paragraph 2(d) of the Canadian Bill
of Rights, R.S.C. 1970, Appendix III. (It appears
that the appellants have also attacked the sub
poenas before the Commission on grounds relating
to their scope, relevance, etc., but those grounds
are not directly in issue on the present appeal.)
Charter—Section 8
Section 8 of the Charter provides that
8. Everyone has the rights to be secure against unreasonable
search or seizure.
At first blush, it is difficult to see that this
provision has any relevance whatever to the facts
of this case. We are dealing with a subpoena duces
tecum and not with a search warrant or a writ of
seizure. As stated by the learned Trial Judge [at
page 226]
... the issue before me is not search and seizure but the
authority to bring persons or documents before the commission
by way of subpoena. There is no uninvited entry upon the
premises of any citizen and there is no forcible seizure of
property.
For us to give effect to the appellants' argument
on this point would require us to find that the
subpoena duces tecum is the equivalent of a search
or a seizure. In this regard, we were asked to
follow the very decision of the Alberta Court of
Appeal in Alberta Human Rights Commission v.
Alberta Blue Cross Plan (unreported, Appeal No.
14904, released September 8, 1983 [now reported
at 48 A.R. 192; 1 D.L.R. (4th) 301]).
I confess that this decision gives me great dif
ficulty, not the least because of the high regard
which is due to the unanimous five-judge bench
which rendered it. On the question which concerns
us here, the totality of what the Court had to say is
contained in the following sentence [at page 195
A.R., page 307 D.L.R.]:
We accept the view that a forced production of documents in
a civil proceedings [sic], or during an administrative inquiry, is
a seizure.
Taken at face value this statement, unsupported
by either reasoning or authority, is unacceptable.
It appears to be contrary to the great weight of
American jurisprudence (see, for example,
Oklahoma Press Publishing Co. v. Walling, 327
U.S. 186 (1946); Dunham v. Ottinger, 154 N.E.
298 (N.Y.C.A. 1926)). Such Canadian authority
as we have been referred to is to the same effect
(e.g. Rolbin v. the Queen (1982), 2 C.R.R. 166
(Que. S.C.)). The statement is also contrary to the
ordinary and accepted meanings normally given to
the words "search" and "seizure". Both of these
words unmistakably imply an intrusion into the
citizen's home or place of business by a third
person who looks for and removes documents or
things. Searches and seizures are normally effect
ed under a warrant or writ which is addressed to
the officer conducting the search or seizure and
permits him to enter the premises for those pur
poses. On the other hand, under a subpoena duces
tecum, no one enters a citizen's home or place of
business other than himself and his invitees. The
order of the court is addressed to the witness
himself and is not an authorization to intrude but
rather a command to produce.
In fairness to the Alberta Court, their statement
must be read in the context of their decision. They
were dealing with an application, by the Human
Rights Commission, to obtain documents required
in the course of an enquiry into an alleged case of
discrimination. The applicable statutory provisions
now appear as sections 21 to 23 of the Individual's
Rights Protection Act, R.S.A. 1980, chapter I-2:
21 A person investigating a complaint under section 20 may do
any or all of the following:
(a) enter on the land or premises of a person, other than a
room or place actually used as a dwelling, at any reasonable
time and examine them;
(b) demand the production for examination of employment
applications, payrolls, records, documents, writings and
papers that are or may be relevant to the investigation of the
complaint;
(c) on giving a receipt for them, remove any of the things
referred to in clause (b) for the purpose of making copies or
extracts of them.
22 (1) A person investigating a complaint under section 20 may
enter and examine a room or place actually used as a dwelling
only if
(a) the owner or person in possession of it gives his consent to
the entry and examination, or
(b) the entry and examination is authorized by an order of a
judge of the Court of Queen's Bench under subsection (3)
(2) If the person investigating a complaint under section 20
(a) cannot obtain consent to enter and examine or, having
received consent, is obstructed or interfered with, or
(b) is refused entry to land or premises other than a room or
place actually used as a dwelling,
he may apply to a judge of the Court of Queen's Bench by
notice of motion for an order under subsection (3).
(3) If on application under subsection (2) the judge is
satisfied that there are reasonable and probable grounds for
believing that access to the room or place actually used as a
dwelling or to the land or premises is necessary for the purposes
of the investigation, he may make an order
(a) authorizing the entry and examination, or
(b) prohibiting any person from obstructing or interfering
with the entry and examination,
or both.
23 If a person on whom a demand under section 21(b) to
produce anything is made refuses or fails
(a) to comply with the demand, or
(b) to permit removal of the thing under section 21(c),
the person investigating the complaint may apply to a judge of
the Court of Queen's Bench by notice of motion and the judge
may make any order he considers necessary to enforce compli
ance with section 21(b) or (c).
While the Alberta Court was dealing with an
application under section 23 to enforce compliance
with a demand for production of documents under
section 21(b), the total investigative scheme
envisaged by the quoted sections goes much fur
ther and provides that the same proceedings may
give rise to orders for forced entry and search.
That being so, it is perhaps understandable that
the Court considered the scheme as a whole to be
subject to the restraints of section 8 of the
Charter.
If, on the other hand, it was the intention of the
Alberta Court to declare that every order for
production of documents by way of subpoena duce
tecum was to be treated as a seizure for the
purposes of the Charter, I must, with respect,
disagree.
In the present case, the relevant statutory provi
sion is subsection 17(1) of the Combines Investi
gation Act. That subsection provides in classic
terms for the obtaining of a subpoena duces
tecum, which it describes as an "order" for the
"production of books, papers, records or other
documents".
For the reasons stated, I cannot see any valid
analogy between such an order and the searches
and seizures envisaged in section 8 of the Charter
and I would give no effect to this branch of the
appellants' argument.
Bills of Rights—Paragraph 2(d)
The applicable provision of the Bill of Rights
reads as follows:
2.... no law of Canada shall be construed or applied so as
to
(d) authorize a court, tribunal, commission, board or other
authority to compel a person to give evidence if he is denied
... protection against self crimination ... .
In order to succeed under this branch of their
argument, appellants must, of course, demonstrate
that they are not protected against self-incrimina
tion by any other statutory or constitutional provi
sion. The Bill of Rights does not contain a prohibi
tion against compelling a person to give
incriminating evidence, but only requires that if
there is such compulsion it shall be accompanied
by a protection against the use of such evidence
against the person giving it.
Central to the appellants' submission on this
point is the fact that they are required by the
subpoenas to produce documents. No statute, the
argument runs, grants protection against the use of
documents to incriminate the witness producing
them and, therefore, the compulsion to produce
them is in violation of paragraph 2(d).
In my opinion, the argument fails on two counts.
In the first place, I have grave doubts as to wheth
er the privilege afforded by paragraph 2(d) applies
to documents at all. In the second place, I am
satisfied that whatever may be envisaged by para
graph 2(d) is protected by section 13 of the Chart
er of Rights.
Any examination of the scope of paragraph 2(d)
must start with the judgment of Laskin J., as he
then was, speaking for the majority of the Court in
Curr v. The Queen, [1972] S.C.R. 889; 26 D.L.R.
(3d) 603. In the course of his judgment [at pages
906-907 S.C.R., page 619 D.L.R.], Laskin J.
expresses himself as being in general agreement
with what had been said by Freedman C.J.M.
(speaking for a court composed of himself, Monnin
and Dickson J.J.A. (as they then were)), in R. v.
McKay (1971), 4 C.C.C. (2d) 45 (Man. C.A.).
Although Freedman C.J.M. interpreted the words
"to give evidence" in paragraph 2(d) as meaning
"going through the process of testifying" (at page
49), Laskin J. expressly left that question open as
appears from the following passage:
... I cannot read s. 2(d) as going any farther than to render
inoperative any statutory or non-statutory rule of federal law
that would compel a person to criminate himself before a court
or like tribunal through the giving of evidence, without concur
rently protecting him against its use against him. I leave for
future consideration the scope of the term "evidence" since this
is not a matter that arises in the present case.
(at page 912 S.C.R., page 623 D.L.R.).
The question of the scope of paragraph 2(d)
came again before the Supreme Court some three
years later, in the case of Marcoux et al v. The
Queen, [1976] 1 S.C.R. 763. The judgment of the
Court was given by Dickson J., who said, at page
768:
The limit of the privilege against self-incrimination is clear.
The privilege is the privilege of a witness not to answer a
question which may incriminate him. [Emphasis added.]
and, again, at page 769:
In short, the privilege extends to the accused qua witness and
not qua accused, it is concerned with testimonial compulsion
specifically and not with compulsion generally .... [Emphasis
added.]
If the matter had ended here, there would
appear to be little room for doubt that the privi
lege enshrined in paragraph 2(d) does not extend
to the production of documents. Dickson J., how
ever, went on to say, in the next following para
graph [at page 769]:
American jurisprudence on the Fifth Amendment, which
protects a person against being compelled "to be a witness
against himself', and Canadian jurisprudence on the privilege
against self-incrimination, have followed parallel courses, limit
ing the application of the privilege to its historic reach, i.e.
protection against testimonial compulsion. Such a limitation
gives rise to a distinction between coerced oral or documentary
disclosures which fall within the privilege, and what has been
termed "real or physical" evidence, i.e. physical evidence taken
from a person without his consent, which, broadly speaking,
falls outside the privilege. [Emphasis added.]
While, in my opinion, the better view is that, in
his use of the term "coerced documentary disclo
sures", Dickson J. was simply referring to forms of
testimony which are documentary in nature (e.g.
responses to written interrogatories, affidavits, and
the like), the appellants understandably argue that
it was his intention to extend the privilege to the
whole field of compelled production of documents.
I cannot agree. Indeed, it is difficult to think of
any rational or policy basis why the privilege
against self-incrimination should ever be held to
apply to documents simply because a witness is
compelled to produce them. I have always under
stood the law to be that documents and things
found in the possession of an accused were admis
sible against him on the sole condition of their
being shown to be relevant (Thompson v. The
King, [1918] A.C. 221 (H.L.)). Such things could
be seized from him even without warrant at the
time of his arrest (R. v. Brezack (1949), 96 C.C.C.
97 (Ont. C.A.), and authorities there cited). And,
in any event, the law provides that even an illegal
seizure shall not act as a bar to admissibility of
relevant evidence (Kuruma v. The Queen, [1955]
A.C. 197 (P.C.); A.G. for Quebec v. Begin, [1955]
S.C.R. 593). While it may be that the coming into
force of the Charter will be found to have modified
the rigour of some of these rules, we are here
dealing with the interpretation of the Bill of Rights
which, as I read the majority decision in Hogan v.
The Queen, [1975] 2 S.C.R. 574, does not have
any effect on the common law rule of admissibility
of relevant evidence.
The rationale behind the privilege against self-
incrimination is to prevent persons being ques
tioned in inquisitorial proceedings and then prose
cuted as a result of their answers. It is a logical
counterpart to our rules relating to admissibility of
confessions. The purpose of the privilege is surely
not to prevent witnesses from being obliged to
produce what could be taken from them by force
in any event. An accused person cannot be forced
to testify in his own case and, therefore, is entitled
to be protected against the consequences of testify
ing in someone else's; he has no protection against
documents or things found in his possession being
used against him and, therefore, has no right to
refuse to produce them, when required.
It is true that a number of cases have held that,
in the course of discovery proceedings in a civil
action, the production of documents will not be
ordered if it is shown that they are of a nature to
incriminate the party giving discovery (see D'Ivry
v. World Newspaper Co. of Toronto et al. (1897),
17 P.R. 387 (Ont. C.A.); Attorney-General v.
Kelly (1916), 28 D.L.R. 409 (Man. C.A.); Web-
ster v. Solloway, Mills & Co., [1931] 1 D.L.R.
831 (Alta. C.A.); Staples v. Isaacs, [1940] 3
D.L.R. 473 (B.C.C.A.)). The cases, however, are
not unanimous on the point (see Stickney v. Trusz
(1973), 16 C.C.C. (2d) 25 (Ont. H.C.), affirmed
(1974), 28 C.R.N.S. 125 (Ont. C.A.)) and, for the
reasons stated, I have difficulty in understanding
the rationale for extending the privilege to
documents.
I would conclude this aspect of the question by
saying that I have been greatly helped by, and am
in general agreement with, the very useful discus
sion by Professor Ratushny in his book, Self-
Incrimination in the Canadian Criminal Process
(Carswell, 1979). As he says:
It is clear that the privilege against self-incrimination as it
exists in Canada today is an extremely narrow concept. It
simply describes two specific procedural and evidentiary rules:
the non-compellability of the accused as a witness at his own
trial and the section 5(2) protection of a witness not to have
testimony used in future proceedings. There is no general
principle which can be invoked to achieve a specific result in a
particular case.
(at page 92).
As to the self-incrimination provision of para
graph 2(d) of the Bill of Rights, it
... extends no further than to the protection embodied in
section 5(2) of the Canada Evidence Act.
(at page 91).
Since the latter subsection specifically applies to
the "answer" given to a "question", it does not
extend to the production of documents (R. v.
Simpson et al. (1943), 79 C.C.C. 344 (B.C.C.A.)).
Be all that as it may, however, it is not in my
view strictly necessary for the purposes of the
present appeal that we determine the precise
extent of the privilege contained in paragraph
2(d). Whatever that privilege may be, I am con
vinced that it has been entirely subsumed by the
provisions found in section 13 of the Charter of
Rights, which accord that very protection which is
made prerequisite of compellability under para
graph 2(d).
That this is so appears clearly from a compari
son of the two dispositions. In the English text, the
protection granted by paragraph 2(d) is against
the compulsion "to give evidence if ... denied .. .
protection against self crimination...." Section 13
of the Charter grants to anyone "who testifies .. .
the right not to have any incriminating evidence so
given used to incriminate that witness ...." While
one text employs the active and the other the
passive voice, the protected activity is, in each
case, the giving of evidence.
A glance at the French text makes the concord
ance between the two provisions even clearer.
Paragraph 2(d) denies to officialdom the right to
"contraindre une personne à témoigner si on
lui refuse ... la protection contre son propre
témoignage...."
Section 13, in its turn, gives to everyone the "droit
à ce qu'aucun témoignage incriminant qu'il donne
ne soit utilisé pour l'incriminer. . . ."
In each case, what is protected is the use against a
witness of his own "témoignage".
I would add that I do not see section 26 of the
Charter as a bar to this interpretation. That sec
tion simply commands that the Charter not be
construed so as to deny the existence of other
rights. The right given by paragraph 2(d) is condi
tional; section 13 does not deny that right but
rather confirms it and makes it absolute.
I conclude therefore that, whether or not para
graph 2(d) of the Bill of Rights extends to cover
the case of a witness who is forced to produce
incriminating documents pursuant to a subpoena
duces tecum, the reach of section 13 of the Chart
er is at least as great and therefore grants to such
witness the "protection against self crimination"
required by paragraph 2(d).
From the foregoing, it appears that both the
points raised by appellants were, in my opinion,
properly rejected by the Trial Judge. It follows
that I would dismiss the appeal, with costs.
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.