T-1605-83
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 (Applicants)
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)
Trial Division, Jerome A.C.J. — Ottawa, July 15
and August 9, 1983.
Combines — Prohibition — Certiorari — Whether power of
Restrictive Trade Practices Commission under s. 17, Combines
Investigation Act to compel by subpoena attendance of wit
nesses or production of documents contrary to ss. 2, 7 and 8 of
Charter and 2(d) of Canadian Bill of Rights — Authority
under s. 17 not subject to safeguards of privacy and freedom
from search and seizure — Southam Inc. v. Director of
Investigation and Research of the Combines Investigation
Branch et al., [1983] 3 W.W.R. 385 (Alta. C.A.) distinguished,
issue at oar being power to compel attendance of witnesses or
production of documents, not search and seizure — Formali
ties to be observed before issue of subpoena — S. 17 orders not
denying applicants protection against self-crimination afford
ed by s. 2(d), Canadian Bill of Rights — Applicants enjoying
protection under s. 5, Canada Evidence Act given to witnesses
who are not accused persons — S. 20 of Combines Investiga
tion Act specific confirmation of s. 5 protection — Application
for prohibition and certiorari dismissed — Combines Investi
gation Act, R.S.C. 1970, c. C-23, ss. 17, 20 — 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. 2,
7, 8.
Constitutional law — Charter of Rights — Combines
Whether s. 17 of the Act of no force as contrary to Charter ss.
2, 7 and 8 — Freedom from search and seizure — Southam
Inc. v. Director of Investigation and Research of the Combines
Investigation Branch et al., [1983] 3 W.W.R. 385 (Alta. C.A.),
distinguished — Issue here not search and seizure but bringing
of persons or documents before Commission by subpoena —
Authority conferred by s. 17 not subject to Charter safeguards
— 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 — Combines Investigation Act,
R.S.C. 1970, c. C-23, s. 17.
Applicants move to prohibit respondents from acting upon
orders made pursuant to section 17 of the Combines Investiga
tion Act or alternatively, to quash such orders on the grounds
that the power given to the Commission under section 17 to
compel by way of subpoena the attendance of witnesses or the
production of documents is contrary to the guarantees of
privacy and freedom from search and seizure as articulated in
sections 2, 7 and 8 of the Charter, and that the orders violate
the protection against self-crimination afforded to them under
paragraph 2(d) of the Canadian Bill of Rights.
Held, the application is dismissed. The authority conferred
by section 17 is not subject to the Charter safeguards of privacy
and freedom from search and seizure. The issue before the
Court is not search and seizure but the authority to bring
persons or documents before the Commission by way of subpo
ena. It follows that the decision in Southam Inc. v. Director of
Investigation and Research of the Combines Investigation
Branch et al., [1983] 3 W.W.R. 385 (Alta. C.A.), whereby the
power of the respondents to issue and execute search warrants
was struck down, cannot be applied. A summons under section
17 cannot be obtained until certain formalities have been
observed: the Director of Investigation and Research must
apply to a member of the Restrictive Trade Practices Commis
sion to obtain the subpoena; that application must be made in
writing and in a form satisfactory to the issuing Commissioner;
under subsection 17(3), the respondents cannot impose sanc
tions upon failure to comply except upon application to the
Court; finally, upon receipt of the subpoena, a person served is
entitled to secure the advice of counsel as to compliance,
attendance, testimony and production of documents. The com
parison of s. 17 procedure with an unwarranted search and
seizure clearly does not stand up.
Nor are the applicants, in being summoned to the prelim
inary proceeding in question, being denied protection against
self-crimination. Paragraph 2(d) of the Canadian Bill of
Rights has not only embodied the well-known criminal law
principle that no one can be compelled to provide testimony for
his own conviction, but has added the directive to courts to
render inoperative any legislation which may be construed or
applied in such a way as to deny that protection. Applicants
enjoy the protection afforded under section 5 of the Canada
Evidence Act to witnesses who are not accused persons. Section
20 of the Combines Investigation Act is specific confirmation of
the section 5 protection. Although both of those sections relate
only to oral testimony, the principle has never been otherwise
and the Court has not been persuaded of the contrary.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Southam Inc. v. Director of Investigation and Research
of the Combines Investigation Branch et al., [1983] 3
W.W.R. 385 (Alta. C.A.).
REFERRED TO:
Stevens, et al. v. Restrictive Trade Practices Commis
sion, [1979] 2 F.C. 159 [T.D.]; Curr v. Her Majesty The
Queen, [1972] S.C.R. 889; 26 D.L.R. (3d) 603.
COUNSEL:
A. M. Gans, J. Pelletier and J. R. Sproat for
applicants.
B. Finlay, M. Rosenberg and S. Fréchette for
respondents.
SOLICITORS:
Miller, Thomson, Sedgewick, Lewis & Healy,
Toronto, for applicants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: The applicants seek to prohibit
the respondents from acting upon certain orders
made pursuant to section 17 of the Combines
Investigation Act [R.S.C. 1970, c. C-23] or, in the
alternative, by way of certiorari, to quash such
orders on the grounds that section 17 is of no force
and effect as being contrary to sections 2, 7 and 8
of the Constitution Act, 1982, [Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] and para
graph 2(d) of the Canadian Bill of Rights [R.S.C.
1970, Appendix III].
17. (1) On ex parte application of the Director, or on his own
motion, a member of the Commission may order that any
person resident or present in Canada be examined upon oath
before, or make production of books, papers, records or other
documents to such member or before or to any other person
named for the purpose by the order of such member and may
make such orders as seem to him to be proper for securing the
attendance of such witness and his examination, and the pro
duction by him of books, papers, records or other documents
and may otherwise exercise, for the enforcement of such orders
or punishment for disobedience thereof, all powers that are
exercised by any superior court in Canada for the enforcement
of subpoenas to witnesses or punishment of disobedience
thereof.
(2) Any person summoned under subsection (1) is competent
and may be compelled to give evidence as a witness.
(3) A member of the Commission shall not exercise power to
penalize any person pursuant to this Act, whether for contempt
or otherwise, unless, on the application of the member, a judge
of the Federal Court of Canada or of a superior or county court
has certified, as such judge may, that the power may be
exercised in the matter disclosed in the application, and the
member has given to such person twenty-four hours notice of
the hearing of the application or such shorter notice as the
judge deems reasonable.
(4) Any books, papers, records, or other documents produced
voluntarily or in pursuance of an order under subsection (1)
shall within thirty days thereafter be delivered to the Director,
who is thereafter responsible for their custody, and within sixty
days after the receipt of such books, papers, records or other
documents by him the Director shall deliver the original or a
copy thereof to the person from whom such books, papers,
records or other documents were received.
(5) A justice before whom any thing seized pursuant to a
search warrant issued with reference to an offence against this
Act is brought may, on the application of the Director, order
that such thing be delivered to the Director, and the Director
shall deal with any thing so delivered to him as if delivery of it
had been made to him pursuant to subsection (4).
(6) Every person summoned to attend pursuant to this
section is entitled to the like fees and allowances for so doing as
if summoned to attend before a superior court of the province
in which he is summoned to attend.
(7) The Minister may issue commissions to take evidence in
another country, and may make all proper orders for the
purpose and for the return and use of evidence so obtained.
(8) Orders to witnesses issued pursuant to this section shall
be signed by a member of the Commission.
Counsel for the applicants confirms that this
motion does not attack the authority of Parliament
to enact anti-combines legislation or to support
such legislation with the investigative powers of
the Combines Investigation Act and the Restric-
tive Trade Practices Commission. Counsel also
confirms that the motion does not question the
authority of Parliament to support these legislative
enactments with authority to call before the Com
mission by way of summons or subpoenas persons
and papers which fall within the ambit of such
investigations. Two issues are raised by this
application; whether the power or authority given
the Commission within section 17 is contrary to
the guarantee of privacy and freedom from search
and seizure, as presently articulated in the
Canadian Charter of Rights and Freedoms, Part
I, Constitution Act, 1982; and whether such orders
offend the applicants' protection against self-
crimination as enunciated in the Canadian Bill of
Rights, R.S.C. 1970, Appendix III, paragraph
2(d). The relevant provisions of the Canadian
Charter of Rights and Freedoms are 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.
Indeed in the recent case of Southam Inc. v.
Director of Investigation and Research of the
Combines Investigation Branch et al.,' the power
of the respondents to issue and execute search
warrants was struck down in a unanimous decision
of a panel of five judges of the Alberta Court of
Appeal. Not long after the Southam decision the
respondents obtained search warrants by the same
procedure in several provinces other than Alberta
and upon application at Toronto my colleague
Collier J. adopted the reasoning of the Alberta
Court of Appeal and set aside the warrants. I note
that neither decision questions the authority of the
respondents to carry on an investigation or to
' [1983] 3 W.W.R. 385 (Alta. C.A.).
support it with search warrants. The principle of
these decisions is that the provisions are inopera
tive because they place the respondents in a posi
tion to obtain and execute search warrants virtual
ly on their own authority and without the
safeguards for protection of privacy known at
common law, in our criminal statutes and as now
expressed in the Charter. Were we dealing here
with the same issue I would not hesitate to apply
the reasoning in the Alberta Court of Appeal, as
did my brother Collier, but 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. We are dealing with a sum
mons which cannot be obtained until the respond
ents have first fulfilled the requirements necessary
for the commencement of an investigation. In
addition, a further formality must be observed in
that the Director of Investigation and Research
must apply to a member of the Restrictive Trade
Practices Commission for the subpoena in ques
tion. It is true that these applications need only be
made by one arm of the respondents' operation, as
it were, to the other but nevertheless the applica
tion must be made in writing and in a form
satisfactory to the issuing Commissioner. I think it
is an apt comparison that for the purposes of any
civil or criminal proceeding in any court in the
country, a citizen can be called forward to fulfil
his obligation to testify under oath by a subpoena
or summons which can be obtained in a most
perfunctory manner. Finally as I read subsection
17(3) the respondents are unable to impose any
sanctions upon the failure to comply unless they
first come to this Court, upon notice to the appli
cants for that very purpose. Adding this to the
applicants' right, upon receipt of the subpoena, to
secure the advice of counsel as to compliance,
attendance, testimony and production of docu
ments, the comparison with unwarranted search
and seizure simply breaks down. I cannot accept
the submission that the authority conferred by
section 17 is subject to those safeguards of privacy
and freedom from search and seizure as enshrined
in the Charter and as so eloquently set out in the
Southam judgment.
The relevant provisions of the Canadian Bill of
Rights are:
2. Every law of Canada shall, unless it is expressly declared
by an Act of 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;
Our society operates on the premise that all
citizens not only obey our duly enacted laws but
also co-operate fully with those who have responsi
bility for enacting and enforcing them. Included in
that responsibility is the obligation to give evidence
under oath in response to a proper subpoena. It has
also been a principle of our criminal law for centu
ries that no one can be compelled to provide the
testimony for their own conviction. The principle
has two manifestations: an accused person cannot
be compelled to testify and any statements made
by the accused may only be admitted in evidence if
voluntary. Here, of course, no charges have been
laid and the proceeding to which the applicants are
summoned may have several other results. In this
regard the reasoning of my colleague Addy J. in
Stevens, et al. v. Restrictive Trade Practices
Commission 2 , is most appropriate.
The second manifestation protects witnesses
who are not accused persons and is incorporated in
the Canada Evidence Act, R.S.C. 1970, c. E-10,
section 5:
5. (1) No witness shall be excused from answering any
question upon the ground that the answer to such question may
tend to criminate him, or may tend to establish his liability to a
civil proceeding at the instance of the Crown or of any person.
(2) Where with respect to any question a witness objects to
answer upon the ground that his answer may tend to criminate
him, or may tend to establish his liability to a civil proceeding
at the instance of the Crown or of any person, and if but for
this Act, or the Act of any provincial legislature, the witness
2 [1979] 2 F.C. 159 [T.D.].
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.
It is quite significant that the protection does
not take priority over the duty of the witness to
testify as is the case with the accused person. On
the contrary the duty to testify is re-affirmed but,
under appropriate protection. It is of equal signifi
cance that neither in the case of the accused or the
witness has the principle ever gone beyond oral
testimony so as to embrace documentary evidence.
Indeed the existing jurisprudence confirms the re
striction for the accused (Curr v. Her Majesty The
Queen) 3 , and by analogy ever more strongly for
the witness.
Paragraph• 2(d) has not only embodied the prin
ciple in the Canadian Bill of Rights but has added
the directive to the courts to render inoperative
any legislation which may be construed or applied
in such a way as to deny the protection against
self-crimination. In this case I must determine
whether these applicants in being summoned to
this kind of preliminary proceeding are being
denied that protection and the answer is that they
are not. They enjoy the protection of section 5 of
the Canada Evidence Act. In fact, section 20 of
the Combines Investigation Act is specific confir
mation of it. Both of these relate only to oral
testimony but the principle has never been other
wise, and nothing in the very thorough presenta
tion of counsel for these applicants persuades me
to the contrary.
Accordingly, this application must be dismissed
with costs.
3 [[1972] S.C.R. 889]; 26 D.L.R. (3d) 603.
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.