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T-401-89
462657 Ontario Limited, R & N Enterprises (Windsor) Inc., R G R Associates Limited and Raymond Quenneville (Applicants)
v.
Minister of National Revenue (Respondent)
INDEXED AS: 462657 ONTARIO LTD. V. M.N.R. (T.D.)
Trial Division, Strayer J.—Toronto, August 30; Ottawa, September 6, 1989.
Income tax — Inquiries — Inquiry into financial affairs of applicants under Act s. 231.4 — Individual applicant suspect ed of tax evasion and false statements in income tax returns; corporate applicants suspected of having received secret com missions taxable in hands of individual applicant — Process whereby applicants will be obliged to divulge information or documents which could be used to incriminate applicants in some future prosecution not violating Charter ss. 7 or 8 or Bill of Rights s. 2(d).
Judicial review — Prerogative writs — Certiorari — Whether inquiry into financial affairs of corporate and individual applicants under Income Tax Act s. 231.4 for suspected tax offences and subpoena duces tecum compelling individual applicant to attend and give evidence at inquiry contravening of Charter ss. 7 or 8 or Bill of Rights s. 2(d).
Constitutional law — Charter of Rights — Life, liberty and security — Revenue Canada inquiry into financial affairs of corporate and individual applicants and subpoena duces tecum compelling individual applicant to attend and give evidence at inquiry not contravening Charter s. 7 even though creating possibility applicants will be obliged to divulge information or documents which could be used to incriminate applicants in future prosecution — S. 7 guarantees not applicable to corpo rations — Protection argued for not one of basic tenets of our legal system.
Constitutional law — Charter of Rights — Criminal process — Search and seizure — Inquiry into suspected income tax offences — Compulsion to produce documents as required by subpoena duces tecum not amounting to unlawful search or seizure within Charter s. 8.
Bill of Rights — Protection against self-incrimination — Inquiry under Income Tax Act s. 231.4 into suspected income tax offences — Whether process whereby applicants could be obliged to divulge information and documents which could be used to incriminate applicants in future prosecution violating Bill of Rights s. 2(d) — No denial of protection against self-incrimination as protection of Canada Evidence Act s. 5(2) and Charter s. 13 available — S. 2(d) protection appli-
cable to testimony, not to compulsion of other forms of evidence such as production of documents.
In April 1988, the applicant, Quenneville, was suspected of making false statements in income tax returns for the years 1983, 1984, 1985 and 1986 and wilful tax evasion for those years. The corporate applicants were also suspected of having received secret commissions within the meaning of section 383 of the Criminal Code, commissions which would be taxable benefits in the hands of Quenneville.
An inquiry into the financial affairs of the applicants was subsequently established by authorization of the Deputy Minis ter of National Revenue under section 231.4 of the Income Tax Act. In January 1989, the appointed hearing officer issued a subpoena duces tecum to Quenneville requiring him to give evidence on all matters within his knowledge relating to the financial affairs of the corporate and individual applicants in the present proceeding and to produce certain documents. These are applications for writs of prohibition and/or certiorari to quash both the inquiry and the subpoena, based on the belief by Quenneville that a purpose of the inquiry is to obtain information to support a prosecution against him.
The issues are: (1) whether these proceedings contravene section 7 of the Charter by creating the possibility that the applicants will be obliged to divulge information or documents which could be used to incriminate them in some future prosecution; (2) whether the compulsion to produce documents as required in the subpoena duces tecum issued to Quenneville amounts to an unlawful search or seizure within the meaning of section 8 of the Charter; (3) whether the process violates paragraph 2(d) of the Canadian Bill of Rights.
Held, the applications should be dismissed.
It is well established that the guarantees of section 7 do not apply to corporations. And in this case, it does not even apply to the applicant Quenneville. To find a procedural guarantee in section 7, one must: first, be satisfied that the protection argued for is one of the basic tenets of our legal system; and, second, see if the specific definitions of rights as set out in sections 8 to 14 must by necessary implication be taken to have excluded from the general language of section 7 other guarantees con cerning essentially the same subject-matter.
First, it cannot be said that it is one of the basic tenets of our legal system that oral evidence may not be compelled nor documents demanded, whenever there is some possibility the resulting information—whether obtained directly or as a result of the original disclosures—might be used in some hypothetical future criminal prosecution against the person who made them. And the relevant guarantees found in paragraph 11(c) and section 13 of the Charter do not apply herein. Paragraph 11(c) is confined to persons already charged with an offence and the section 13 protection against self-incrimination clearly contem plates the legal permissibility of a person being obliged to testify in one proceeding and thereby produce evidence which, were it not for this section, could constitutionally be used in a second proceeding. In any event, prohibition and certiorari at this stage are premature: the inquiry has not started, no
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