Judgments

[1994] 3 .F.C. 113

T-2737-93

In re the Competition Act;

And in re an inquiry pursuant to s. 10 of the Competition Act regarding the activities of certain notaries in the judicial district of St-François;

And in re an application by the Director of Investigation and Research, Competition Act, for an order directing certain persons to appear for examination pursuant to s. 11(1)(a) and for the appointment of a presiding officer.

T-3011-93

Charles Samson, Marie Marier, Michel Lamoureux, Denise Cloutier, Claude Gagnon, Daniel Tousignant, André Robert, Nathalie Poisson, Richard Laprise, Suzanne Leblanc, Armand Bolduc, Marie-Josée Bolduc, Claude Turcotte, René Cyr (Applicants-plaintiffs)

v.

Her Majesty the Queen and George Addy, Director of Investigation and Research appointed pursuant to the Competition Act (Respondents-defendants)

Indexed as: Samson v. Canada (T.D.)

Trial Division, Tremblay-Lamer J.—Montréal, February 1; Toronto, March 23, 1994.

Constitutional law — Charter of Rights — Life, liberty and security — Application to quash ex parte orders compelling suspects in combines investigation to appear for examination — Director investigating complaint notaries in Sherbrooke area agreeing to observe minimum fee tariffs in real estate deals — Application allowed — Orders contrary to Charter, s. 7 — Charter, ss. 11(c), 13 not preventing conclusion s. 7 conferring residual protection — S. 7 applicable to suspect, versus accused, investigative stage, versus trial — Criminal proceedings required — Purely administrative proceedings distinguished — Investigation integral part of process leading to eventual criminal prosecution in which applicants-plaintiffs prime suspects — Testimony only adding to evidence of own misconduct — Rule of fundamental justice when suspect certain to be charged and testimony not assisting conduct of investigation, but own prosecution, suspect should not be compelled to testify — Public interest not justifying compellability.

Criminal justice — Evidence — Ex parte orders requiring suspects in combines investigation to appear for examination quashed as infringing Charter, s. 7 — S. 7 providing residual protection to ss. 11(c), 13 — Applicable to suspect, investigative stage of criminal proceedings, administrative inquiries leading to criminal prosecution — When suspect certain to be charged and testimony not assisting conduct of investigation, but own prosecution, suspect should not be compelled to testify.

Competition — Investigation of notaries allegedly agreeing to adhere to minimum fee tariff in real estate deals — Federal Court ex parte orders compelling suspects to appear for examination quashed as contrary to Charter, s. 7 — S. 7 applies to suspects, investigative stage of process — Director’s investigation integral part of process leading to criminal prosecution in which applicants-plaintiffs prime suspects — Director having all necessary information to conclude applicants-plaintiffs committing criminal offence — Only purpose self-incrimination — Wrongful use of government power.

The Director of Investigation and Research, appointed pursuant to the Competition Act, commenced an inquiry into an alleged agreement amongst notaries in the Sherbrooke area of Quebec to observe minimum fee tariffs for services connected with real estate transactions between November 1992 and May 1993. The applicants-plaintiffs were signatories to the agreement and were part of the executive of the Association des notaires du district de St-François, the coercive measures committee and/or the rate setting committee. This was an application to quash ex parte orders granted by Nadon J. requiring them to appear for examination, and an action for a declaration that Competition Act, paragraph 11(1)(a) was of no force or effect. The issues were whether Charter, section 7, which guarantees the right not to be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice, applied to a suspect at the investigative stage, and whether the orders were contrary to section 7.

Held, the application should be allowed in part. The orders infringed Charter, section 7 and were declared null and void.

The specific enumerations in Charter, paragraph 11(c) (right of non-compellability) and section 13 (prohibition against self-incrimination) do not prevent a conclusion that section 7 confers residual protection.

The right to silence can be exercised by an accused in the investigative stages of proceedings. The right of a suspect not to say anything is not the result of a right of no self-crimination, but is merely the exercise by him of the general right to say what one pleases, unless obliged to do otherwise by law. The right of a suspect to remain silent operates at both the investigative and the trial stage. The right to remain silent does not exist unless there is a criminal process. Purely administrative inquiries must be distinguished from those which concern the commission of a criminal offence, since the consequences of the first do not entail the criminal consequences and the stigmas attached to the second. If the purpose of the inquiry is to obtain evidence which will lead to criminal proceedings, an administrative inquiry should not be distinguished from a criminal one. The Director’s investigation was an integral part of a process leading to an eventual criminal prosecution, in which the applicants-plaintiffs were the prime suspects.

The Director had all the information needed to conclude that the applicants-plaintiffs had committed a criminal offence. The information and the evidence in the record established that an agreement existed to set prices which limited the real estate transaction market, and the applicants-plaintiffs were responsible for it. The Director could have summoned the notaries’ clients or employees of the Bureau d’enregistrement to see what documents had been notarized during this short period, but instead chose to summon the suspected notaries, the only possible purpose of which could have been for them to incriminate themselves.

The public interest did not justify the Director’s application. The balance between the rights of government and the individual depends on the context. When combines investigators seek to obtain information from the only persons holding information about transactions in general which are the subject of the investigation, the power of compellability may be more legitimate. But when, as here, there is a certainty that the suspect is the person who will be charged and his testimony will not serve to assist the conduct of the investigation, but rather his own prosecution, the suspect should not be compelled to testify. That is a rule of fundamental justice. The government has made a wrongful use of its power against the individual. Charter, section 7 exists to restore the balance.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5.

Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 4(1), 5.

Canada Evidence Act (The), 1893, S.C. 1893, c. 31.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 11(c), 13.

Combines Investigation Act, R.S.C. 1970, c. C-23, s. 17.

Competition Act, R.S.C., 1985, c. C-34 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 19), ss. 10(1)(b)(iii) (as am. idem, s. 23), 11(1)(a) (as am. idem, s. 24).

CASES JUDICIALLY CONSIDERED

APPLIED:

Dubois v. The Queen, [1985] 2 S.C.R. 350; (1985), 66 A.R. 202; 23 D.L.R. (4th) 503; [1986] 1 W.W.R. 193; 41 Alta. L.R. (2d) 97; 22 C.C.C. (3d) 513; 48 C.R. (3d) 103; 18 C.R.R. 1; 62 N.R. 50; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; (1985), 24 D.L.R. (4th) 536; [1986] 1 W.W.R. 481; 69 B.C.L.R. 145; 23 C.C.C. (3d) 289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R. 240; 63 N.R. 266; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; (1990), 65 D.L.R. (4th) 161; 54 C.C.C. (3d) 417; 29 C.P.R. (3d) 97; 76 C.R. (3d) 129; 47 C.R.R. 1; 106 N.R. 161; 39 O.A.C. 161; R. v. Chambers, [1990] 2 S.C.R. 1293; [1990] 6 W.W.R. 554; (1990), 49 B.C.L.R. (2d) 299; 59 C.C.C. (3d) 321; 80 C.R. (3d) 235; 119 N.R. 321; Rothman v. The Queen, [1981] 1 S.C.R. 640; (1981), 121 D.L.R. (3d) 578; 59 C.C.C. (2d) 30; 20 C.R. (3d) 97; 35 N.R. 485; R. v. Hebert, [1990] 2 S.C.R. 151; [1990] 5 W.W.R. 1; 47 B.C.L.R. (2d) 1; 57 C.C.C. (3d) 1; 77 C.R. (3d) 145; 49 C.R.R. 114; 110 N.R. 1; R. v. Esposito (1985), 53 O.R. (2d) 356; 24 C.C.C. (3d) 88; 49 C.R. (3d) 193; 20 C.R.R. 102; 12 O.A.C. 350 (C.A.); Morena (V.) v. M.N.R., [1991] 1 C.T.C. 78; (1990), 90 DTC 6685; 39 F.T.R. 81 (F.C.T.D.); Crain (R. L.) Inc. et al. v. Couture and Restrictive Trade Practices Commission et al. (1983), 6 D.L.R. (4th) 478; 30 Sask. R. 191; 10 C.C.C. (3d) 119; 9 C.R.R. 287 (Q.B.); Haywood Securities Inc. v. Inter-Tech Group Inc. (1985), 24 D.L.R. (4th) 724; [1986] 2 W.W.R. 289; (1986), 68 B.C.L.R. 145 (C.A.); R. v. Lyons, [1987] 2 S.C.R. 309; (1987), 44 D.L.R. (4th) 193; 37 C.C.C. (3d) 1; 61 C.R. (3d) 1; 80 N.R. 161.

CONSIDERED:

Comet Products UK Ltd v Hawkex Plastics Ltd, [1971] 1 All ER 1141 (C.A.).

AUTHORS CITED

Wigmore, John Henry. Evidence in Trials at Common Law, 3rd ed. Boston: Little, Brown Co., 1940, vol. viii.

APPLICATION to quash ex parte orders requiring the applicants-plaintiffs, suspects in a combines investigation, to appear for examination. Application allowed.

COUNSEL:

Bruno J. Pateras, Q.C. and Danielle Barot for applicants-plaintiffs.

François Rioux for respondents-defendants.

SOLICITORS:

Pateras & Iezzoni, Montréal, for applicants-plaintiffs.

Deputy Attorney General of Canada for respondents-defendants.

The following is the English version of the reasons for order rendered by

Tremblay-Lamer J.:

FACTS

On July 20, 1993 the Director of Investigation and Research (the Director) appointed pursuant to the Competition Act (hereinafter “the Act”)[1], initiated an inquiry pursuant to subparagraph 10(1)(b)(iii) [as am. idem, s. 23] of the Act concerning the provision by notaries in the Sherbrooke area of Quebec of services connected with real estate transactions between November 1992 and May 1993.

On November 24, 1993, Mr. Marcel Morin, an authorized representative of the Director, swore an information which he submitted to The Hon. Marc Nadon of the Federal Court in connection with an ex parte application for an order directing the applicants-plaintiffs to appear for examination pursuant to paragraph 11(1)(a) [as am. idem, s. 24] of the Act.

On November 24, 1993 orders were made by Nadon J. to each of the applicants-plaintiffs directing them to appear for examination before a presiding officer.

The applicants-plaintiffs then filed an application to quash the orders made by The Hon. Marc Nadon ex parte and an action asking the Court to declare paragraph 11(1)(a) of the Act of no force or effect and the orders made by Nadon J. null and void.

On December 17, 1993 The Hon. Marc Nadon granted the applicants-plaintiffs a stay of proceedings until the Court had made a decision on the said orders.

The applicants and the plaintiffs also filed an application for a joint hearing on the ground that the application and the action involved the same parties and raised the same questions of fact and law. This application is allowed, as the Court considers that it is in the interests of justice for these applications and the action to be heard concurrently.

ISSUES

1. Are the orders made by Nadon J. contrary to section 7 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.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter) on the ground that they infringe the right which a suspect has not to incriminate himself at the investigative stage?

2. Is paragraph 11(1)(a) of the Competition Act contrary to section 7 of the Charter on the ground that it infringes the right which a suspect has not to incriminate himself at the investigative stage?

3. Alternatively, are the orders an abuse of process?

ANALYSIS

1.         Brief review of right not to incriminate oneself

At common law it suffices to note that the right arose in ecclesiastical proceedings and extended to all answers which exposed a witness to sanctions, penalties or forfeitures. In Comet Products UK Ltd v Hawkex Plastics Ltd,[2] Lord Denning M.R. defined the rule as follows:

It is one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture … “no one is bound to incriminate himself”.

This rule applied in Canada until 1893, when Parliament amended it[3] by adoption of the provisions which now make up subsection 4(1) and section 5 of the Canada Evidence Act.[4] Section 5 provides that a witness may not refuse to answer a question on the ground that his reply could tend to incriminate him. However, an answer so given may not be used or be admissible against him in subsequent criminal proceedings, other than a prosecution for perjury in the giving of the evidence. Subsection 4(1) provides that every person charged with an offence and the wife or husband of that person is a competent witness for the defence, whether the person so charged is charged solely or jointly with any other person.

The Charter raised these rules to the level of constitutional guarantees in paragraph 11(c) and section 13. The relationship between paragraph 11(c) and section 13 was considered in Dubois v. The Queen[5] in which Lamer J. (as he then was) stated at page 356:

A plain reading of s. 13 indicates that the guarantee it provides is directed against self-incrimination through the use of one’s previous testimony. It is a very specific form of protection against self-incrimination and must therefore be viewed in the light of two closely related rights, the right of non-compellability and the presumption of innocence, set forth in s. 11(c) and (d) of the Charter.

He concluded, at page 358:

Hence, the purpose of s. 13, when the section is viewed in the context of s. 11(c) and (d), is to protect individuals from being indirectly compelled to incriminate themselves, to ensure that the Crown will not be able to do indirectly that which s. 11(c) prohibits. It guarantees the right not to have a person’s previous testimony used to incriminate him or her in other proceedings.

However, the following question has still to be answered: when paragraph 11(c) and section 13 do not apply, can section 7 offer residual protection against self-incrimination?

In Re B.C. Motor Vehicle Act,[6] the Supreme Court held that sections 8 to 14 are examples of limitations on the right guaranteed by section 7 and provide an exceptional indication of the meaning of the phrase “rules of fundamental justice.” Lamer J. (as he then was) explained this as follows at page 503 of that judgment:

… the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system.

In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission)[7] the Supreme Court ruled on whether a suspect in an administrative investigation had the right to remain silent as well as the right against self-incrimination. It recognized that the specific enumerations in paragraph 11(c) and section 13 do not prevent a conclusion that section 7 confers residual protection. Although the five judges agreed in recognizing that such protection exists, there was no consensus as to its extent.

The question thus remains whether the residual protection against self-incrimination contained in section 7 extends to the suspect at the investigative stage. In the circumstances of the case at bar it should be noted that the persons required to testify at the inquiry are not simply witnesses but actually suspects.

2.         Extent of residual protection against self-incrimination contained in section 7

It is important at the outset to examine the state of the law on the protection available to a suspect in connection with a criminal investigation. Does he have a right to remain silent like an accused? Does this protection extend to administrative inquiries, and which ones?

(i)         Suspect at stage of criminal investigation

The courts have many times held that the right to silence exists for an accused both in a criminal investigation and at trial.

In R. v. Chambers[8] Cory J. noted at page 1315 this fundamental rule of our legal system:

It is now well recognized that there is a right to silence which can properly be exercised by an accused person in the investigative stages of the proceedings.

As regards a suspect, Lamer J. (as he then was), dissenting in Rothman v. The Queen,[9] explained the basis of his right to silence as follows at page 683:

In Canada the right of a suspect not to say anything to the police is not the result of a right of no self-crimination but is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances, must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise.

In R. v. Hebert[10] the Supreme Court recently confirmed that a suspect who is in custody has a right to silence just as an accused does at any stage of a criminal proceeding.

Similarly, in Thomson Newspapers Sopinka J. adopted at page 599 the passage from Martin J.A. in R. v. Esposito[11] in support of his assertion that the right to remain silent goes beyond the witnesses’ bar. Martin J.A. outlined the scope of this right at page 94:

The right of a suspect or an accused to remain silent is deeply rooted in our legal tradition. The right operates both at the investigative stage of the criminal process and at the trial stage. [My emphasis.]

(ii)        Suspect at stage of administrative inquiry

In Morena (V.) v. M.N.R.[12] the plaintiffs were asking the Court to quash a mandatory request for information under subsection 231.2(1) of the Income Tax Act[13] and also to rule that this section was inconsistent with the Charter. My brother Pinard J. dismissed the appeal on the ground that the investigation was purely administrative. At page 83 he concluded:

It is clear, however, from that judgment [R. v. Chambers] and the rest of the relevant jurisprudence, that the right to remain silent cannot exist if there is not a criminal process, be it at an early or at a later stage, that is really involved. Such right, in my view, has therefore no application to a non-criminal situation, where Parliament has expressly imposed an obligation to respond as in subsection 231.2(1) of the Income Tax Act. [My emphasis.]

However, since Thomson Newspapers was not conclusive the question whether a suspect enjoys the right to remain silent and the right against self-incrimination in an administrative inquiry remains open.

In my opinion it is of the first importance to distinguish purely administrative inquiries from those which concern the commission of a criminal offence, since the consequences of the first do not entail the criminal consequences and the stigmas attached to the second.

In Crain (R. L.) Inc. et al. v. Couture and Restrictive Trade Practices Commission et al.[14] Scheibel J. does not distinguish an administrative inquiry from a criminal one if the purpose of the inquiry is to obtain evidence which will lead to criminal proceedings. At page 513 he states:

The compelling of a person to assist in an investigation of his own misconduct, of course, does not occur in all administrative inquiries. In my view, this result is dictated only where the administrative body has formed a suspicion that certain persons are involved in criminal activity and the inquiry is used to gather evidence of the criminal activity of those persons. In other words, at least one of the purposes of the inquiry is to assist in the eventual criminal prosecution of specific suspects.

On this point Sopinka J. observed in Thomson Newspapers, at page 606, that:

Obtaining evidence from suspects as a basis for commencing criminal proceedings is not a merely incidental effect of s. 17 of the Act. In this field of anti-competitive crime the police work is carried out largely, if not exclusively, by the Director and his staff …. To this extent, the hearing officer is a policeman armed with a subpoena. [My emphasis.]

Although the purpose of the proceeding at bar is inter alia to have the Court find paragraph 11(1)(a) of the Competition Act of no force or effect, it is not necessary for the purposes of this proceeding to rule on this point as the orders themselves in my opinion were contrary to the rules of fundamental justice and so in breach of section 7.

La Forest J., who in Thomson Newspapers held that a suspect does not have the right to remain silent or the right against self-incrimination in an administrative inquiry, emphasized that he would have the right by judicial review to challenge any possible abuse of the power conferred by section 17 [R.S.C. 1970, c. C-23] (now paragraph 11(1)(a)), and at page 535 concluded that this “provides adequate guarantee [sic] against potential abuse of the power s. 17 confers.” The investigative powers of the Director must therefore be exercised with restraint in all cases.

In the circumstances of the case at bar there is no question that the Director has all the information that could lead him to conclude that the applicants-plaintiffs committed a criminal offence. I set out here the key passages of the information:

On July 20, 1993, the Director initiated an inquiry pursuant to s. 10(1)(b)(iii) of the Act concerning the provision by notaries in the Sherbrooke area of Quebec of services connected with real estate transactions between November 1992 and May 1993. The informant is an agent assigned to this inquiry and in that capacity has full knowledge of the case;

The parties concerned in this inquiry are the Association des notaires du district de St-François (hereinafter “the Association”) and its members who in December 1992 signed an agreement to observe minimum fee tariffs;

In February 1993 a consumer in the city of Windsor, Quebec filed a complaint with the Director after he was told by three notaries in the Windsor area that since January 1, 1993 notaries in that area had agreed to set the prices of their professional fees involving real estate transactions;

In the price survey conducted by the informant certain notaries stated that notaries in the St-François district had agreed in November 1992 or December 1992 to impose a uniform fee tariff;

A document dated March 15, 1993 and provided by a Sherbrooke notary lists the members of the Association’s executive and members of the Association’s various committees, including the committee on “coercive measures” and the “rate-setting” committee; the notaries on the “coercive measures” committee were: Charles Samson, Suzanne Leblanc, Claude Gagnon, Michel Lamoureux, Richard Laprise and Claude Turcotte, and the notaries on the “rate setting” committee were Charles Samson, Richard Laprise, Suzanne Leblanc, Marie Marier and Michel Lamoureux, as appears from a copy of this list filed in support hereof in Appendix 5;

A review of the information obtained to date indicated that notaries in the St-François district concluded an agreement in December 1992 to apply a minimum tariff for providing services connected with real estate transactions in the St-François district; this information gave the Director reasonable grounds to believe that offences had been committed pursuant to s. 45(1)(c) of the Act;

The following persons signed the “qualifications and hiring memorandum” described in Appendices 1 and 2, as appears in Appendix 3:

(a) Charles Samson, c/o Samson, Thibodeau, Charron, 455 rue King Ouest, Suite 200, Sherbrooke, Quebec, J1H 6E9

(b) Marie Marier, c/o Les notaires Marier, 135 St-Lambert, Bromptonville, Quebec, J0B 1H0

(c) Michel Lamoureux, c/o Lamoureux & Boutin, 520 Bowen Sud, Sherbrooke, Quebec, J1G 2E1

(d) Denise Cloutier, c/o Lagassé, Bolduc, 455 rue King Ouest, Suite 610, Sherbrooke, Quebec, J1H 6E9

(e) Claude Gagnon, 204 rue Wellington Nord, Suite 1, Sherbrooke, Quebec, J1H 5C6

(f) Daniel Tousignant, c/o Paré, Tanguay, 2140 rue King Est, Suite 201, Fleurimont, Quebec, J1H 5H2

(g) André Robert, c/o Robert & Raymond, 356 rue King Ouest, Suite 301, Sherbrooke, Quebec, J1H 1R4

(h) Nathalie Poisson, c/o Downey & Poisson, 85 Queen, Lennoxville, Quebec, J1M 1J3

(i) Richard Laprise, 5104 boul. Bourque, Suite 101, Rock Forest, Quebec, J1N 2K7

(j) Suzanne Leblanc, 117 rue Wellington Nord, Suite 300, Sherbrooke, Quebec, J1H 5B9

(k) Armand Bolduc, c/o Lagassé, Bolduc, 455 rue King Ouest, Suite 610, Sherbrooke, Quebec, J1H 6E9

(l) Marie-Josée Bolduc, c/o Lagassé, Bolduc, 455 rue King Ouest, Suite 610, Sherbrooke, Quebec, J1H 6E9

(m) Claude Turcotte, 189 avenue St-Jacques, East Angus, Quebec, J0B 1R0

(n) René Cyr, c/o Bellefeuille & Cyr, 165 Wellington Nord, Suite 100, Sherbrooke, Quebec, J1H 5B9

Additionally, these persons were all part of the executive of the Association des notaires du district de St-François and of the “coercive measures” committee and/or the “rate setting” committee.

Accordingly, there can be no doubt from reading the information and the evidence in the record that an agreement exists to set prices, that this agreement limits the real estate transaction market and that the applicants-plaintiffs are responsible for it. They are all members of the executive and members of the coercive measures and rate-setting (committees).

When the Director has all this information and corroborating evidence, I find it hard to understand what else he needs from the suspect notaries except to incriminate themselves.

He could have summoned the notaries’ clients or employees of the Bureau d’enregistrement to see what documents had been notarized during this short period, but he chose to summon the suspected notaries. In the circumstances I cannot find any legitimate reason in which the public interest justifies the Director’s application or even the valid objective of preserving and encouraging competition in Canada.

Wigmore on Evidence[15] contains this most relevant comment on the public interest in such a situation:

Any system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby. The inclination develops to rely mainly upon such evidence, and to be satisfied with an incomplete investigation of the other sources.

The respondents argued that this is an administrative inquiry and that the Director’s powers entail no immediate penal consequences, so that the rules of fundamental justice relied on by the applicants-plaintiffs are not applicable in the case at bar.

There is no doubt in my mind that the Director’s investigation is an integral part of a process leading to an eventual criminal prosecution, in which the applicants-plaintiffs are the prime suspects. In my view this is the kind of situation described by Macfarlane J. in Haywood Securities Inc. v. Inter-Tech Group Inc.,[16] at pages 748-749:

I agree that if the sole aim and purpose of the proceeding was to obtain evidence to support a charge or to assist the criminal prosecution of the witness, it might be arguable that the witness ought not to be compelled to divulge information which might lead to his conviction. But, in my view, such a result would follow only if the proceedings, in which such evidence was given, were so devoid of any legitimate public purpose, and so deliberately designed to assist the prosecution of the witness, that to allow them to continue would constitute an injustice. In such circumstances, the continuance of the proceedings could be said to constitute a violation of the principles of fundamental justice. [My emphasis.]

Could there be a more obvious case in which a person is required to become his own adversary?

The balance between the rights of government and the individual depends on the particular context to which they apply. As La Forest J. noted in R. v. Lyons,[17] at page 361:

It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked.

There may be situations in which the interests of the community are greater and exercise of the power of compellability more legitimate. One example would be when combines investigators seek to obtain information from the only persons holding information about transactions which are the subject of the investigation and they seek to obtain information on such transactions in general without being solely concerned with the self-incrimination of these suspects.

However, that is not the case here. Based on the circumstances established by the information and the evidence in the record, the Director in my opinion has already concluded that criminal offences were committed by the applicants-plaintiffs and their own testimony can only add to the evidence of their misconduct.

In other words, when there is a certainty that the suspect is the person who will be charged and his testimony will not serve to assist the conduct of the investigation in general but rather his own prosecution, the suspect should not be compelled to testify. That is a rule of fundamental justice.

I feel the situation is one in which the Government has made a wrongful use of its power against the individual. Accordingly, section 7 of the Charter exists to restore the balance.

In Hebert, McLachlin J. sums up as follows at page 180:

The Charter through s. 7 seeks to impose limits on the power of the state over the detained person. It thus seeks to effect a balance between the interests of the detained individual and those of the state. On the one hand s. 7 seeks to provide to a person involved in the judicial process protection against the unfair use by the state of its superior resources. On the other, it maintains to the state the power to deprive a person of life, liberty or security of person provided that it respects fundamental principles of justice. The balance is critical. Too much emphasis on either of these purposes may bring the administration of justice into disrepute—in the first case because the state has improperly used its superior power against the individual, in the second because the state’s legitimate interest in law enforcement has been frustrated without proper justification.

CONCLUSION

I therefore conclude that the orders made against the applicants-plaintiffs infringe section 7 of the Charter and I find them to be null and void.

The application for a joint hearing is allowed. The application to quash the orders made by The Hon. Marc Nadon and the part of the action asking the Court to declare those orders null and void are allowed. The part of the action asking the Court to rule that paragraph 11(1)(a) of the Act is of no force or effect is dismissed. Costs are awarded to the applicants-plaintiffs.

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