Rothstein
J.:
Introduction
This
case
involves
a
constitutional
challenge
to
the
“inquiry”
provision,
section
231.4
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
as
amended
(the
Act).
The
plaintiff,
Angelo
Del
Zotto,
came
under
suspicion
of
tax
evasion
following
an
audit
in
1985
by
the
Audit
Branch
of
Revenue
Canada.
In
1986,
an
investigation
was
commenced
into
Del
Zotto’s
financial
affairs
by
the
Special
Investigations
Branch
of
Revenue
Canada,
which
led
to
the
initiation
in
1992
of
an
inquiry
into
Del
Zotto’s
financial
affairs
for
the
years
1979
to
1985
inclusive,
convened
under
section
231.4
(the
Inquiry).
At
the
opening
of
the
Inquiry,
the
plaintiffs
argued
for
and
received
an
adjournment
pending
the
outcome
of
an
application
brought
by
the
plaintiffs
to
the
Federal
Court
Trial
Division
to
stay
the
Inquiry.
A
stay
of
the
Inquiry
was
granted
by
this
Court.
It
was
ordered
that
the
Inquiry
would
resume,
if
it
was
constitutionally
permitted
to
resume,
thirty
days
from
a
determination
as
to
the
constitutional
validity
of
section
231.4
of
the
Income
Tax
Act,
R.S.C.
1985,
c.
1
(5th
Supp.)
and/or
the
Inquiry.
Issues
The
issues
in
this
case
are
whether:
(a)
section
231.4
of
the
Income
Tax
Act
(the
Inquiry
Provision)
infringes
either
section
7
or
8
of
the
Canadian
Charter
of
Rights
and
Freedoms,
Part
I
of
the
Constitution
Act,
1982,
being
Schedule
B
of
the
Canada
Act,
1982
(U.K.),
1982;
(b)
if
section
231.4
is
constitutional,
on
the
facts
of
this
case,
the
Inquiry
convened
into
the
financial
affairs
of
the
plaintiff
Angelo
Del
Zotto
infringes
either
section
7
or
8
of
the
Charter.
Relevant
Constitutional
and
Statutory
Provisions
The
plaintiffs
are
relying
on
sections
7
and
8
of
the
Canadian
Charter
of
Rights
and
Freedoms,
Part
I
of
the
Constitution
Act,
1982,
being
Schedule
B
of
the
Canada
Act
1982
(U.K.),
1982.
c.
11:
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
and
seizure.
The
impugned
law
is
section
231.4
of
the
Income
Tax
Act:
231.4
(1)
The
Minister
may,
for
any
purpose
related
to
the
adminstration
or
enforcement
of
this
Act,
authorize
any
person,
whether
or
not
the
person
is
an
officer
of
the
Department
of
National
Revenue,
to
make
such
inquiry
as
the
person
may
deem
necessary
with
reference
to
anything
relating
to
the
administration
or
enforcement
of
this
Act.
(2)
Where
the
Minister,
pursuant
to
subsection
(1),
authorizes
a
person
to
make
an
inquiry,
the
Minister
shall
forthwith
apply
to
the
Tax
Court
of
Canada
for
an
order
appointing
a
hearing
officer
before
whom
the
inquiry
will
be
held.
(3)
For
the
purposes
of
an
inquiry
authorized
under
subsection
(1),
a
hearing
officer
appointed
under
subsection
(2)
in
relation
thereto
has
all
the
powers
conferred
on
a
commissioner
by
sections
4
and
5
of
the
Inquiries
Act
and
that
may
be
conferred
on
a
commissioner
under
section
11
thereof.
(4)
A
hearing
officer
appointed
under
subsection
(2)
in
relation
to
an
inquiry
shall
exercise
the
powers
conferred
on
a
commissioner
by
section
4
of
the
Inquiries
Act
in
relation
to
such
persons
as
the
person
authorized
to
make
the
inquiry
considers
appropriate
for
the
conduct
thereof
but
the
hearing
officer
shall
not
exercise
the
power
to
punish
any
person
unless,
on
application
by
the
hearing
officer,
a
judge
of
a
superior
or
county
court
certifies
that
the
power
may
be
exercised
in
the
matter
disclosed
in
the
application
and
the
applicant
has
given
to
the
person
in
respect
of
whom
the
applicant
proposes
to
exercise
the
power
24
hours
notice
of
the
hearing
of
the
application
or
such
shorter
notice
as
the
judge
considers
reasonable.
(5)
Any
person
who
gives
evidence
in
an
inquiry
authorized
under
subsection
(1)
is
entitled
to
be
represented
by
counsel
and,
on
request
made
by
the
person
to
the
Minister,
to
receive
a
transcript
of
the
evidence
given
by
that
person.
(6)
Any
person
whose
affairs
are
investigated
in
the
course
of
an
inquiry
authorized
under
subsection
(1)
is
entitled
to
be
present
and
to
be
represented
by
counsel
throughout
the
inquiry
unless
the
hearing
officer
appointed
under
subsection
(2)
in
relation
to
the
inquiry,
on
application
by
the
Minister
or
a
person
giving
evidence,
orders
otherwise
in
relation
to
the
whole
or
any
part
of
the
inquiry
on
the
ground
that
the
presence
of
the
person
and
the
person’s
counsel,
or
either
of
them,
would
be
prejudicial
to
the
effective
conduct
of
the
inquiry.
Pursuant
to
subsection
231.4(3),
a
hearing
officer
appointed
to
conduct
an
inquiry
has
all
the
powers
conferred
on
a
commissioner
by
sections
4
and
5
of
the
Inquiries
Act,
R.S.,
c.
I-11,
which
state:
4.
The
commissioners
have
the
power
of
summoning
before
them
any
witnesses,
and
of
requiring
them
to
(a)
give
evidence,
orally
or
in
writing,
and
on
oath
or,
if
they
are
persons
entitled
to
affirm
in
civil
matters
on
solemn
affirmation;
and
(b)
produce
such
documents
and
things
as
the
commissioners
deem
requisite
to
the
full
investigation
of
the
matters
into
which
they
are
appointed
to
examine.
5.
The
commissioners
have
the
same
power
to
enforce
the
attendance
of
witnesses
and
to
compel
them
to
give
evidence
as
is
vested
in
any
court
of
record
in
civil
cases.
Paragraphs
239(l)(a)
and
(d)
of
the
Income
Tax
are
also
relevant:
239.
(1)
Every
person
who
has
(a)
made,
or
participated
in,
assented
to
or
acquiesced
in
the
making
of,
false
or
deceptive
statements
in
a
return,
certificate,
statement
or
answer
filed
or
made
as
required
by
or
under
this
Act
or
a
regulation,
(d)
wilfully,
in
any
manner,
evaded
or
attempted
to
evade
compliance
with
this
Act
or
payment
of
taxes
imposed
by
this
Act,
or
is
guilty
of
an
offence
and,
in
addition
to
any
penalty
otherwise
provided,
is
liable
on
summary
conviction
to
(f)
a
fine
of
not
less
than
50%,
and
not
more
than
200%,
of
the
amount
of
the
tax
that
was
sought
to
be
evaded,
or
(g)
both
the
fine
described
in
paragraph
(f)
and
imprisonment
for
a
term
not
exceeding
2
years.
Facts
The
plaintiff
Angelo
Del
Zotto
is
currently
Chairman
and
Chief
Executive
Officer
of
Tridel
Enterprises
Inc.,
a
public
company,
and
Chairman
and
Chief
Executive
Officer
of
Tridel
Corporation.
He
has
been
prominently
engaged
in
the
business
of
planning
and
obtaining
financing
for
construction
and
marketing
real
estate
projects.
The
plaintiff
Herbert
Noble
is
a
lawyer
and
a
business
executive.
There
is
no
evidence
of
Noble’s
relationship
with
Del
Zotto.
In
October
1985,
representatives
of
the
Audit
Branch
of
Revenue
Canada
began
making
inquiries
regarding
Del
Zotto’s
financial
affairs.
Specifically,
Revenue
Canada
was
concerned
about
the
exercise
of
stock
options
by
Del
Zotto
in
a
company
called
Night
Hawk
Resources
Ltd.
Revenue
Canada’s
position
was
that
the
benefit
Del
Zotto
received
from
the
exercise
of
the
stock
options
was
$290,250
and
that
the
benefit
was
not
reported.
In
addition
to
seeking
payment
of
$290,250,
Revenue
Canada
considered
levying
a
penalty
under
subsection
163(2)
of
the
Income
Tax
Act
of
up
to
25%
of
the
amount
owing
because
the
non-reporting
was
done
knowingly
or
through
gross
negligence.
Del
Zotto
admitted
liability,
but
submitted
that
no
penalty
should
be
levied.
In
January
1986,
the
Del
Zotto
file
was
referred
by
the
Audit
Branch
of
Revenue
Canada
to
the
Special
Investigations
Branch.
It
is
apparent
from
the
referral
document
that
by
the
time
of
referral
to
Special
Investigations,
the
Audit
Branch
had
concluded
Del
Zotto
had
also
failed
to
report
$90,000
of
interest
income
for
1980,
and
$4,500
of
other
income
for
1983,
bringing
the
total
undeclared
amount
to
$384,750.
During
the
period
of
1986
to
1990,
several
discussions
took
place
between
Revenue
Canada
and
Del
Zotto
or
his
representatives,
and
Noble
or
his
representatives.
On
May
3,
1990,
Revenue
Canada
wrote
to
Herbert
Noble
asking
for
particulars,
including
Noble’s
business
relationship
with
Angelo
Del
Zotto,
with
Tridel
and
with
Supra
Investments
Inc.
By
letter
dated
May
23,
1990,
counsel
for
Nobel
declined
to
provide
the
information
sought
by
Revenue
Canada.
On
April
19,
1991,
at
a
meeting
with
officials
of
the
Special
Investigations
Branch
of
Revenue
Canada,
counsel
for
Del
Zotto
was
advised
that
Revenue
Canada
proposed
to
charge
Del
Zotto
with
income
tax
evasion
under
paragraphs
239(l)(a)
and
(d)
of
the
Income
Tax
Act.
On
November
19,
1991,
the
Toronto
District
Special
Investigations
Branch
wrote
to
head
office
of
Special
Investigations
Branch
requesting
that
a
Commission
of
Inquiry
be
appointed
pursuant
to
section
231.4
of
the
Income
Tax
Act.
In
this
communication,
it
was
specified
that
Del
Zotto
was
under
suspicion
of
failing
to
report
$5,081,519
of
stock
profits
during
the
taxation
years
1983
to
1984,
and
that
the
amount
of
tax
sought
to
be
evaded
by
Del
Zotto
was
$1,669,062.
On
or
about
September
30,
1992,
Robert
Roy,
Assistant
Deputy
Minister,
Taxation
Programs
Branch,
forwarded
a
memorandum
dated
September
30,
1992
to
Pierre
Gravelle,
Deputy
Minister
of
Revenue
Canada
Taxation
which
set
out
particulars
of
the
alleged
contravention
of
the
Act
by
Del
Zotto,
and
requested
authorization
for
an
Inquiry
under
subsection
321.4(1)
of
the
Act
into
the
financial
affairs
of
Del
Zotto.
A
Globe
and
Mail
article
dated
September
9,
1987
and
correspondence
were
sent
to
Gravelle
along
with
the
memorandum.
After
Gravelle
received
the
memorandum
from
Roy,
Gravelle
and
Roy
met
to
discuss
its
contents.
Gravelle
read
and
relied
on
the
memorandum
and
its
attachments
and
enclosures
in
signing
an
authorization
for
the
Inquiry,
dated
October
9,
1992,
in
which
he
authorized
the
defendant
John
Edward
Thompson,
Q.C.,
with
the
assistance
of
such
counsel
as
he
should
choose,
to
make
an
Inquiry
into
the
financial
affairs
of
Del
Zotto
for
the
taxation
years
1979
to
1985
inclusive.
The
authorization
was
made
under
subsection
231.4(1)
of
the
Act,
and
was
not
based
on
a
reading
of
evidence
given
under
oath.’
By
an
Order
signed
December
2,
1992,
Chief
Judge
Couture
appointed
the
defendant
D.
Reilly
Watson
as
the
Hearing
Officer
for
the
Inquiry.
The
order
was
not
based
on
a
reading
of
evidence
given
under
oath.
Chief
Judge
Couture
informed
Gravelle
of
the
order
by
letter
dated
December
2,
1992,
and
delivered
the
order
to
Watson
by
letter
dated
December
2,
1992.
The
Inquiry
was
fixed
to
commence
on
May
6,
1993.
Del
Zotto
was
sent
notice
of
the
Inquiry
by
a
letter
dated
April
21,
1993.
The
letter
advised
Del
Zotto
that
Thompson
had
been
authorized
to
make
an
inquiry
into
his
financial
affairs
for
the
taxation
years
1979
to
1985
inclusive,
and
that
Watson
had
been
appointed
as
the
Hearing
Officer.
The
letter
specified
the
time
and
place
of
the
Inquiry
and
provided
that
Del
Zotto
was
“entitled
to
be
present
and
to
be
represented
by
counsel,
subject
to
the
provisions
of
subsection
231.4(6)
of
the
Income
Tax
Act.,.".
On
or
about
April
26,
1993,
pursuant
to
subsection
231.4(3)
of
the
Act,
Noble
was
served
a
subpoena
to
attend
and
give
evidence
and
produce
documents
at
the
Inquiry
commencing
on
May
6,
1993.
Del
Zotto
was
not
subpoenaed
to
attend
or
give
evidence
or
produce
documents
at
the
Inquiry.
The
Inquiry
started
on
May
6,
1993
with
Watson
presiding
as
the
Hearing
Officer.
The
Inquiry
proceedings
were
being
recorded
on
videotape
so
as
to
comply
with
the
case
R.
v.
K.G.B.*
concerning
the
admissibility
in
court
of
videotaped
evidence.
There
was
also
in
attendance
Jim
Davies
and
David
Wood
(investigators
and
members
of
the
Special
Investigations
Section),
and
officers
Jim
McGinis
and
Tom
Anderson
(from
the
R.C.M.P.
Tax
Unit).
At
the
commencement
of
the
Inquiry,
Edward
Greenspan,
Q.C.,
appearing
on
behalf
of
Del
Zotto,
made
submissions
that
the
Inquiry
should
be
adjourned.
Argument
took
place
on
the
adjournment
application.
On
the
morning
of
May
7,
1993,
Watson
adjourned
the
Inquiry
pending
stay
proceedings
regarding
the
Inquiry
brought
in
the
Federal
Court
Trial
Division
by
Del
Zotto.
The
stay
was
granted
in
the
Federal
Court
of
Appeal
by
Hugessen
J.A.
on
May
28,
1993.
The
Inquiry
has
not
proceeded
beyond
the
point
at
which
it
was
adjourned
by
Watson
on
May
7,
1993.
As
a
result,
no
witness
has
testified
or
produced
documents
at
the
Inquiry.
Section
7
Section
7
of
the
Charter
has
been
found
in
some
circumstances
to
afford
protection
against
self-incrimination,
although
it
does
not
expressly
provide
for
the
right
against
self-incrimination.
The
right
against
self-incrimination
is
expressly
provided
for
in
section
13
of
the
Charter,
which
states:
13.
A
witness
who
testifies
in
any
proceedings
has
the
right
not
to
have
any
incriminating
evidence
so
given
used
to
incriminate
that
witness
in
any
other
proceedings,
except
in
a
prosecution
for
perjury
or
for
the
giving
of
contradictory
evidence.
The
right
against
self-incrimination
under
section
13
is
narrow.
Under
section
13,
individuals
are
protected
against
the
use
of
self-incriminating
testimony
at
a
proceeding
against
them,
but
not
against
being
compelled
to
give
such
testimony
at
proceedings
other
than
their
own
trial.
Thus,
the
courts
turned
to
section
7
to
address
the
question
of
whether,
as
a
matter
of
fundamental
justice,
individuals
are
afforded
a
residual
right
against
selfincrimination
at
the
point
of
being
compelled
to
testify
at
a
proceeding
other
than
their
own
trial.
The
Supreme
Court
of
Canada
in
R.
v.
S.(RJ.),
[1995]
1
S.C.R.
451,
121
D.L.R.
(4th)
589,
177
N.R.
81,
addressed
the
issue
of
whether
individuals
who
might
subsequently
be
charged
with
a
criminal
or
quasi-criminal
offence
could
be
compelled
to
give
evidence
and
produce
documents
at
the
trial
of
another
person.
A
young
offender
was
charged
with
break
and
enter,
and
a
second
young
offender,
who
was
to
be
tried
separately
for
the
same
offence,
was
being
compelled
to
testify
at
the
trial
of
the
first
young
of-
fender.
The
Supreme
Court
ruled
that
the
latter
young
offender
was
compellable
as
a
witness
because
he
was
afforded
“use
immunity”
(his
testimony
could
not
be
used
against
him
at
his
own
trial
pursuant
to
section
13
of
the
Charter),
and
“derivative
use
immunity”
(evidence
gained
as
a
result
of
his
testimony
could
not
be
used
against
him
at
his
own
trial,
pursuant
to
section
7
of
the
Charter).
The
Supreme
Court
went
on
in
S.(R.J.)
to
observe
that
in
some
circumstances
the
protections
of
“use
immunity”
and
“derivative
use
immunity”
would
not
be
enough
to
protect
individuals
who
are
compelled
to
testify
at
a
proceeding
other
than
their
own
trial.
There
were
varied
opinions
on
the
precise
test
for
determining
in
what
circumstances
an
exemption
from
being
compellable
would
be
granted.
However,
the
general
proposition
emerged
that
individuals
facing
possible
criminal
or
quasi-criminal
charges
would
not
be
compellable
if
the
predominant
purpose
for
seeking
their
evidence
was
to
make
a
case
for
convicting
them
in
their
own
proceedings.
This
proposition
was
affirmed
by
Sopinka
and
lacobucci
JJ.
writing
for
the
majority
in
British
Columbia
(Securities
Commission)
v.
Branch,
[1995]
2
S.C.R.
3,
97
C.C.C.
(3d)
505,
180
N.R.
241,
at
pages
14-15
(C.C.C.
512,
N.R.
249):
The
common
feature
of
the
respective
compellability
tests
proposed
in
the
reasons
of
S.(R.J.),
is
that
the
crucial
question
is
whether
the
predominant
purpose
for
seeking
the
evidence
is
to
obtain
incriminating
evidence
against
the
person
compelled
to
testify
or
rather
some
legitimate
public
purpose.
In
Branch,
the
Supreme
Court
upheld
the
constitutionality
of
an
inquiry
under
subsection
128(1)
of
the
B.C.
Securities
Act,
S.B.C.
1985,
c.83,
in
which
two
former
officers
of
the
company
under
investigation
had
been
subpoenaed
to
testify
and
produce
records.
The
protections
of
section
7
against
self-incrimination
were
held
not
to
be
engaged
if
the
predominant
purpose
of
an
inquiry
was
the
administration
and
enforcement
of
its
authorizing
Act,
as
opposed
to
building
evidence
for
a
criminal
prosecution.
This
test
is
stated
by
Sopinka
and
lacobucci
JJ.
at
page
15:
Where
evidence
is
sought
for
the
purpose
of
an
inquiry,
we
must
first
look
to
the
statute
under
which
the
inquiry
is
authorized.
The
fact
that
the
purpose
of
inquiries
under
the
statute
may
be
for
legitimate
public
purposes
is
not
determinative.
The
terms
of
reference
may
reveal
an
inadmissible
purpose
notwithstanding
that
the
statute
did
not
so
intend:
see
Starr
v.
Houlden,
[1990]
1
S.C.R.
1366.
Indeed,
even
if
the
terms
of
reference
authorize
an
inquiry
for
a
legitimate
purpose
in
some
circumstances,
the
object
of
compelling
a
particular
witness
may
still
be
for
the
purpose
of
obtaining
incriminating
evidence.
It
would
be
rare
indeed
that
the
evidence
sought
cannot
be
shown
to
have
some
relevance
other
than
to
incriminate
the
witness.
In
a
prosecution,
such
evidence
would
simply
be
irrelevant.
There
may,
however,
be
inquiries
of
this
type
and
it
would
be
difficult
to
justify
compellability
in
such
a
case.
In
the
vast
majority
of
cases,
including
this
case,
the
evidence
has
other
relevance.
In
such
cases,
if
it
is
established
that
the
predominant
purpose
is
not
to
obtain
the
relevant
evidence
for
the
purpose
of
the
instant
proceeding,
but
rather
to
incriminate
the
witness,
the
party
seeking
to
compel
the
witness
must
justify
the
potential
prejudice
to
the
right
of
the
witness
against
self-incrimination.
In
the
case
at
bar,
the
plaintiffs
have
made
extensive
submissions
to
challenge
section
231.4
and
the
Inquiry
based
on
the
reasons
of
the
Supreme
Court
in
S.(RJ.)
and
Branch.
The
thrust
of
their
submissions
is
that
section
231.4
bears
the
unconstitutional
purpose
of
authorizing
inquiries
that
build
cases
for
prosecution
under
section
239
of
the
Income
Tax
Act,
which
they
say
is
a
criminal
provision.
However,
the
case
at
bar
is
distinguishable
on
its
facts
from
S.(R.J.)
and
Branch
in
a
key
respect.
Both
S.(R.J.)
and
Branch
involved
the
compellability
of
individuals
who
were
under
investigation.
In
the
case
of
S.(RJ.),
the
young
offender
who
was
facing
the
same
charges
as
the
accused
was
being
compelled
to
testify
as
a
witness
at
the
trial
of
the
accused.
In
Branch,
the
former
directors
of
the
company
under
investigation
had
been
summoned
and
required
to
testify
and
produce
records.
The
central
issue
in
those
cases
turned
on
whether
the
individuals
who
were
themselves
under
investigation
could
be
compelled.
However,
in
the
case
at
bar,
Del
Zotto
has
not
been
summoned
to
testify
or
produce
documents
at
the
Inquiry.
While
the
plaintiff
Herbert
Noble
has
been
summoned
to
the
Inquiry,
he
is
not
facing
possible
charges
under
the
Income
Tax
Act.
Moreover,
Noble
is
being
required
to
testify
with
respect
to
the
financial
affairs
of
Del
Zotto,
not
with
respect
to
his
own
financial
affairs.
In
view
of
the
fact
that
Del
Zotto
has
not
been
subpoenaed
to
appear
and
testify
at
the
Inquiry,
the
right
against
self-incrimination
is
not
directly
engaged
in
this
case.
With
respect
to
the
testimony
of
Noble,
the
principle
of
self-incrimina-
tion
cannot
apply
directly.
The
principle
of
self-incrimination
protects
individuals
against
being
conscripted
against
themselves,
not
against
incrimination
by
another
witness.
In
Branch,
Sopinka
and
Iacobucci
JJ.,
writing
for
the
majority,
observed
at
29:
“...
[I]t
is
the
se//-conscriptive
effect
of
compulsion
which
the
Charter
guards
against”
(emphasis
in
the
original).
With
this
observation
in
mind,
it
is
difficult
to
see
how
the
fact
that
Noble
is
compelled
to
testify
as
to
the
affairs
of
Del
Zotto
can
serve
to
engage
the
protection
of
section
7
with
respect
to
self-incrimination.
Therefore,
on
the
facts,
the
present
case
does
not
fall
neatly
within
the
protection
of
section
7
against
self-incrimination
recognized
by
the
Supreme
Court
in
S.(R.J.)
and
Branch.
Nonetheless,
the
position
of
the
plaintiffs
is
that
section
7
is
engaged
on
other
grounds
than
self-incrimination.
Namely,
the
plaintiffs
are
relying
on
the
case
to
meet
principle,
the
right
to
silence,
the
principle
of
fundamental
unfairness,
and
the
argument
that
the
hearing
officer
in
a
section
231.4
inquiry
is
analogous
to
a
police
officer
armed
with
subpoena
powers,
which
in
the
course
of
a
criminal
investigation
is
said
to
be
constitutionally
impermissible.
“Case
to
Meet”
The
plaintiffs
submit
that
a
violation
of
the
case
to
meet
principle
is
sufficient
to
engage
the
plaintiffs’
rights
under
section
7.
They
maintain
that
the
case
to
meet
principle
received
fresh
constitutional
nourishment
in
S.(R.J.)
and
can
be
applied
broadly
to
the
circumstances
of
the
present
case.
They
maintain
that
section
231.4
provides
for
inquiries
in
which
the
predominant
purpose
is
to
conduct
the
equivalent
of
a
civil
discovery
against
individuals
who
are
facing
criminal
charges
under
the
Income
Tax
Act.
The
plaintiffs
allege
that
this
directly
infringes
the
case
to
meet
principle
which
forbids
the
Crown
from
obtaining
discovery
of
the
defence
in
a
criminal
proceeding.
The
plaintiffs
also
submit
that
if
Herbert
Noble
is
compelled
to
testify,
he
may
reveal
the
defence
strategies
of
Del
Zotto,
which
is
a
concern
underlying
the
case
to
meet
principle.
The
question
arises,
therefore,
whether
the
case
to
meet
principle
can
be
applied
to
the
circumstances
of
the
present
case.
This
question
relies
for
the
most
part
on
whether
the
case
to
meet
principle
can
be
applied
independently
from
the
principle
of
self-incrimination.
The
case
to
meet
principle
was
first
adopted
by
the
Supreme
Court
in
R.
v.
P.(M.B.),
[1994]
1
S.C.R.
555,
113
D.L.R.
(4th)
461,
89
C.C.C.
(3d)
289.
In
P.(M.B.),
the
accused
was
being
tried
for
sexually
assaulting
his
niece.
At
trial,
just
after
the
Crown
closed
its
case,
the
defence
made
brief
submissions
to
the
effect
that
the
accused
was
going
to
be
using
an
alibi
defence.
Following
the
opening
statement
of
the
defence,
there
was
an
adjournment.
When
the
trial
resumed,
the
Crown
wanted
to
reopen
its
case,
having
changed
its
case
according
to
the
information
gained
from
the
opening
statement
of
defence
that
the
defence
was
going
to
be
using
an
alibi.
Chief
Justice
Lamer,
writing
for
the
majority,
ruled
that
the
Crown
would
be
infringing
the
right
of
the
accused
against
self-incrimination
by
using
the
opening
defence
as
a
discovery
to
make
out
a
case
against
him.
In
applying
the
principle,
Chief
Justice
Lamer
observed
at
page
579
(D.L.R.
477-78,
C.C.C.
305):
...
the
Crown
must
establish
a
“case
to
meet”
before
there
can
be
any
expectation
that
the
accused
should
respond.
All
of
these
protections,
which
emanate
from
the
broad
principle
against
selfincrimination,
recognize
that
it
is
up
to
the
state
with
its
greater
resources,
to
investigate
and
prove
its
own
case,
and
that
the
individual
should
not
be
conscripted
into
helping
the
state
fulfil
this
task.
The
principle
of
case
to
meet
was
thus
held
to
“emanate”
from
the
broad
principle
of
self-incrimination.
The
direct
concern
in
P.(M.B.)
was
not
broadly
that
the
disclosure
of
the
defence
strategy
had
been
revealed,
but
that
the
defence
strategy
had
been
conscripted
from
the
accused
himself.
In
S.(R.J.)
the
case
to
meet
principle
was
adopted
by
Iacobucci
J.
(La
Forest,
Cory
and
Major
JJ.
concurring)
as
underlying
the
principle
of
self-incrimi-
nation.
It
was
also
adopted
and
summarized
by
Chief
Justice
Lamer,
who
had
first
applied
the
principle
in
P.(M.B.).
Chief
Justice
Lamer
stated
in
S.(R.J.)
at
page
469
(D.L.R.
600,
N.R.
213):
As
I
observed
in
P.
(M.B.),
supra,
at
p.
577,
“[p]erhaps
the
single
most
important
organizing
principle
in
criminal
law
is
the
right
of
an
accused
not
to
be
forced
into
assisting
in
his
or
her
own
prosecution”
—
the
“case
to
meet”
principle.
This
principle,
I
noted,
“is
perhaps
best
described
in
terms
of
the
overarching
principle
against
self-incrimination,
which
is
firmly
rooted
in
the
common
law
and
is
a
fundamental
principle
of
justice
under
section
7
of
the
Canadian
Charter
of
Rights
and
Freedoms”.
The
observation
of
Chief
Justice
Lamer
that
the
principle
of
case
to
meet
is
“perhaps
best
described
in
terms
of
the
overarching
principle
against
selfincrimination”,
is
yet
another
indication
that
the
principle
of
case
to
meet
is
strongly
connected
with
the
broad
concern
against
self-incrimination.
In
turning
to
the
submissions
in
the
present
case,
I
find
that
an
essential
link
is
missing
in
the
plaintiffs’
broad
submission
that
section
231.4
and
the
Inquiry
convened
to
investigate
Del
Zotto
infringe
the
case
to
meet
principle
on
grounds
that
an
inquiry
under
231.4
constitutes
a
discovery
against
an
individual
in
a
criminal
context.
On
the
facts
in
the
case
at
bar,
there
is
no
individual
being
conscripted
against
himself.
With
respect
to
the
absence
of
the
overarching
concern
of
self-conscription,
La
Forest
J.
stated
in
Thomson
Newspapers
Ltd.
v.
Canada,
[1990]
1
S.C.R.
425,
39
O.A.C.
161,
106
N.R.
161,
at
page
538:
“...one
should
not
automatically
accept
that
section
7
comprises
a
broad
right
against
self-incrimination
on
an
abstract
level...”.
La
Forest
J.
went
on
to
cite
À.
v.
Beare,
[1988]
2
S.C.R.
387,
55
D.L.R.
(4th)
481,
45
C.C.C.
(3d)
57,
at
page
401
(D.L.R.
492,
C.C.C.
69):
Like
other
provisions
of
the
Charter,
section
7
must
be
construed
in
light
of
the
interests
it
was
meant
to
protect.
It
should
be
given
a
generous
interpretation,
but
it
is
important
not
to
overshoot
the
actual
purpose
of
the
right
in
question;...
Therefore,
the
broad
attack
on
section
231.4
and
the
Inquiry
convened
with
respect
to
Del
Zotto
based
on
the
case
to
meet
principle
is
without
foundation.
I
find
that
the
plaintiffs’
submission
that
Noble
may
be
conscripted
to
disclose
the
defence
strategy
of
Del
Zotto
is
also
without
foundation.
The
interest
against
the
disclosure
of
a
defence
strategy,
as
it
first
arose
in
P.(M.B.)
and
was
reiterated
by
Chief
Justice
Lamer
in
S.(R.J.),
is
an
interest
against
^//-conscription.
Thus,
the
case
to
meet
principle
does
not
protect
an
individual
against
revealing
the
defence
strategy
of
an
accused
or
another
individual
facing
the
prospect
of
criminal
charges.
On
the
facts
in
this
case,
there
is
no
evidence
indicating
that
Noble
is
facing
the
possibility
of
charges
under
section
239
of
the
Income
Tax
Act.
If
any
“defence”
is
at
risk
of
being
revealed,
it
clearly
pertains
to
Del
Zotto.
Given
that
Noble
is
argued
to
be
at
risk
of
disclosing
a
defence
that
is
not
his
own,
there
is
no
link
to
^//-conscription.
Therefore,
in
the
circumstances
of
this
case,
the
case
to
meet
principle
does
not
provide
the
plaintiffs
with
a
foundation
on
which
to
claim
the
protections
of
section
7.
“Right
to
Silence”
The
right
to
silence
has
been
adopted
by
the
Supreme
Court
of
Canada
as
a
principle
of
fundamental
justice
under
section
7
of
the
Charter.
As
it
was
adopted
by
Cory
J.
in
R.
v.
Woolley
(1988),
40
C.C.C.
(3d)
531,
25
O.A.C.
390,
63
C.R.
(3d)
333,
and
discussed
in
S.(R.J.),
the
right
to
silence
protects
an
individual
from
being
required
to
answer
the
police
when
under
criminal
investigation.
The
plaintiffs
argue
that
section
231.4
and
the
Inquiry
infringe
the
“right
to
silence”,
and
on
this
ground
the
plaintiffs
are
afforded
the
protections
of
section
7.
The
basis
for
this
submission
is
that
the
purpose
of
a
section
231.4
inquiry
is
criminal
because
it
seeks
to
build
a
case
for
prosecuting
individuals
under
section
239
of
the
Income
Tax
Act,
which
they
say
is
a
criminal
provision.
The
plaintiffs
maintain
that
since
the
context
of
the
inquiry
is
criminal,
the
target
of
an
inquiry
must
be
afforded
the
right
to
silence.
In
turn,
section
231.4
is
argued
to
infringe
the
right
to
silence
on
grounds
that
subsection
231.4(3)
of
the
Income
Tax
Act
provides
for
the
hearing
officer
at
an
inquiry
to
require
an
individual,
including
the
target
taxpayer,
to
testify
and
answer
questions.
Under
this
line
of
submissions,
the
question
arises
as
to
whether
the
right
to
silence
is
triggered
and
is
therefore
available
to
the
plaintiffs
as
a
right
under
which
to
bring
their
challenge
under
section
7
in
the
circumstances
of
this
case.
As
stated,
the
right
to
silence
was
adopted
as
a
principle
of
fundamental
justice
by
the
Supreme
Court
per
Cory
J.
in
Woolley.
In
Woolley,
the
accused
had
been
charged
with
the
theft
of
a
motor
vehicle.
After
laying
charges
against
him,
the
police
asked
the
accused
several
times
where
the
keys
to
the
stolen
vehicle
were.
They
told
him
he
would
have
to
pay
for
new
tumblers
for
the
locks
on
the
vehicle
if
he
did
not
produce
them,
and
that
they
would
keep
him
in
custody
until
he
did
so.
Cory
J.
found
that
the
accused
was
protected
from
incriminating
himself
by
not
having
to
answer
the
question.
With
respect
to
the
right
of
silence,
Cory
J.
noted
at
page
539:
At
the
very
least,
it
is
clear
that
an
accused
person
is
under
no
legal
obligation
to
speak
to
police
authorities
and
there
is
no
legal
power
in
the
police
to
compel
an
accused
to
speak;...
Therefore
the
right
to
silence
protects
an
accused
under
investigation
from
having
to
answer
the
police.
Much
as
with
the
case
to
meet
principle,
the
right
to
silence
bears
a
close
relation
to
the
principle
of
self-incrimina-
tion,
insofar
as
it
protects
an
individual
under
investigation
from
selfconscription.
As
to
when
the
right
to
silence
is
triggered,
it
was
held
by
Sopinka
J.,
writing
a
concurrent
judgement
in
R.
v.
Hebert,
[1990]
2
S.C.R.
151,
110
N.R.
1,
57
C.C.C.
(3d)
1,
at
page
201
(N.R.
53-54,
C.C.C.
15)
that:
The
right
to
remain
silent,
viewed
purposively,
must
arise
when
the
coercive
power
of
the
state
is
brought
to
bear
against
the
individual
—
either
formally
(by
arrest
or
charge)
or
informally
(by
detention
or
accusation)
—
on
the
basis
that
an
adversary
relationship
comes
to
exist
between
the
state
and
the
individual.
The
right,
from
its
earliest
recognition,
was
designed
to
shield
an
accused
from
the
unequal
power
of
the
prosecution,
and
it
is
only
once
the
accused
is
pitted
against
the
prosecution
that
the
right
can
serve
its
purpose.
Thus
the
trigger
of
the
right
to
silence
is
founded
on
an
adversarial
relation
between
the
state
and
an
individual
in
which
the
individual
is
put
at
risk
of
incriminating
himself.
As
with
the
principle
of
self-incrimination,
the
concern
underlying
the
right
to
silence
is
not
broad
or
abstract,
but
specific
to
the
circumstances
of
the
individual
who
is
“pitted
against”
the
prosecution.
Although
on
the
facts
of
the
present
case
Del
Zotto
is
clearly
under
investigation
by
the
Special
Investigation
Branch
of
Revenue
Canada,
he
has
not
been
summoned
to
give
testimony
or
produce
documents
at
the
Inquiry,
and
has
not
been
asked
any
questions
at
the
Inquiry.
He
is
thus
not
“pitted
against”
the
authorities
in
the
sense
that
he
is
not
being
compelled
to
answer
questions
or
produce
documents
in
a
manner
analogous
to
the
accused
in
Woolley,
who
was
confronted
with
questions
by
the
police
designed
to
conscript
the
accused
against
himself.
There
is
no
effort
on
the
part
of
the
state
to
conscript
Del
Zotto
against
himself.
In
such
circumstances
it
is
hard
to
understand
how
the
principle
of
the
right
to
remain
silent
arises
in
this
case.
Therefore,
assuming
that
the
Inquiry
convened
to
investigate
the
financial
affairs
of
Del
Zotto
is
being
conducted
for
the
purposes
of
convicting
him
pursuant
to
section
239
of
the
Income
Tax
Act,
and
assuming
that
section
239
is
a
criminal
provision,
there
is
still
no
“coercive
power
of
the
state”
brought
to
bear
against
Del
Zotto
that
would
require
the
protection
of
the
right
to
silence.
I
find
that
the
plaintiffs’
submissions
with
respect
to
the
right
to
silence
are
without
foundation.
“Fundamental
Unfairness”
In
S.(R.J.),
L’Heureux-Dubé
J.
wrote
a
concurring
judgement
with
respect
to
the
general
rule
of
compellability.
She
differed
from
the
majority
by
adopting
a
test
of
“fundamental
unfairness”
as
the
basis
of
exemption
from
compellability
in
circumstances
where
individuals
are
facing
the
prospect
of
criminal
or
quasi-criminal
charges
and
are
compelled
to
testify
at
a
proceedings
other
than
their
own
trial.
She
stated
the
test
at
page
608
in
the
following
way:
A
witness
may
be
entitled
to
claim
an
exception
under
section
7
from
the
principle
that
the
state
is
entitled
to
every
person’s
evidence
if
it
is
established
that
the
Crown
is
engaging
in
fundamentally
unfair
conduct.
Fundamentally
unfair
conduct
will
most
frequently
occur
when
the
Crown
is
seeking,
as
its
predominant
purpose
(rather
than
incidentally),
to
build
or
advance
its
case
against
that
witness
instead
of
acting
in
furtherance
of
those
pressing
and
substantial
purposes
validly
within
the
jurisdiction
of
the
body
compelling
the
testimony.
The
Crown
will
be
predominantly
advancing
its
case
against
the
accused
when,
by
calling
the
witness,
it
is
engaging
in
a
colourable
attempt
to
obtain
discovery
from
the
accused
and,
at
the
same
time,
is
not
materially
advancing
its
own
valid
purposes.
On
the
basis
of
this
test,
the
plaintiffs
submit
that
section
231.4
and
the
Inquiry
are
fundamentally
unfair
because
an
inquiry
convened
under
231.4
is
conducted
for
the
purpose
of
building
a
case
for
prosecuting
individuals
pursuant
to
section
239,
which
the
plaintiffs
say
is
a
criminal
offence.
However,
the
same
impediment
arises
here
as
it
did
with
respect
to
the
plaintiffs’
submissions
under
the
case
to
meet
principle
and
the
right
to
silence
in
that
the
test
of
fundamental
unfairness
was
adopted
by
L’Heureux-
Dubé
J.
to
address
circumstances
in
which
individuals
are
being
conscripted
against
themselves.
In
articulating
the
fundamental
unfairness
test,
L’Heureux-Dubé
J.
observed
in
S.(R.J.)
at
pages
614-15:
[...]
it
is
trite
law
to
say
that
there
is
no
constitutional
protection
against
being
conscripted
to
testify
against
others.
Only
when
a
witness
is
predominantly
being
conscripted
to
testify
against
himself
do
we
bring
to
bear
the
arsenal
of
protections
collectively
massed
within
s.
7
of
the
Charter.
In
light
of
her
observation,
it
is
clear
that
the
test
of
fundamental
unfairness
is
also
strongly
connected
with
the
principle
of
self-incrimination.
I
find
that
since
Del
Zotto
has
not
been
subpoenaed,
and
Noble
is
being
compelled
to
testify
as
to
Del
Zotto’s
affairs
and
not
his
own,
the
plaintiffs
are
not
availed
of
the
protection
of
section
7
on
the
grounds
of
fundamental
unfairness.
“Subpoena
Powers”
As
a
corollary
to
the
case
to
meet
principle,
the
question
arose
in
S.(R.J.)
at
536:
“are
we
prepared
to
arm
the
police
with
subpoena
powers?”
The
question
was
posed
by
lacobucci
J.,
who
answered
“I
do
not
think
that
we
are...”
Chief
Justice
Lamer
agreed
with
Iacobucci
J.
in
the
matter
(see
S.(R.J.)
at
page
472).
On
the
basis
of
the
obiter
of
lacobucci
J.,
the
plaintiffs
submit
that
section
231.4
and
the
Inquiry
are
constitutionally
invalid.
They
maintain
that
a
section
231.4
inquiry
is
a
forum
by
means
of
which
the
Special
Investigations
Branch
of
Revenue
Canada
can
subpoena
innocent
third
parties
in
conducting
an
investigation
aimed
to
convict
a
taxpayer
under
section
239
of
the
Income
Tax
Act,
which
is
alleged
to
be
a
criminal
provision.
Special
Investigations
may
thus
obtain
subpoenas
to
compel
witnesses
to
testify
in
the
course
of
a
criminal
investigation,
which
the
plaintiffs
say
is
contrary
to
the
holding
of
Chief
Justice
Lamer
and
lacobucci
J.
in
S.(R.J.)
that
police
cannot
be
armed
with
subpoena
powers.
According
to
the
plaintiffs,
the
spectre
of
the
police
conducting
a
criminal
investigation
armed
with
subpoenas
is
highly
persuasive
with
respect
to
the
need
for
section
7
protections.
The
courts
have
often
identified
as
a
crucial
rationale
for
section
7
that
the
principles
of
fundamental
justice
are
meant
to
guard
society
from
the
slippery
slope
of
becoming
a
police
state.
Certainly,
the
idea
of
a
suspect
being
caught
in
a
double
bind
at
the
hands
of
the
police
in
the
investigative
stage
—
facing
contempt
if
he
is
silent,
and
the
risk
of
assisting
to
convict
himself
if
he
speaks,
is
evocative
of
a
society
that
has
slid
the
greater
part
of
the
unwanted
distance.
The
plaintiffs
are
arguing
that
I
should
embark
on
what
seems
to
be
a
straightforward
comparison
between
a
section
231.4
inquiry
and
a
criminal
investigation
conducted
by
the
police.
They
say
a
section
231.4
inquiry
is
de
facto
a
criminal
investigation
because
it
is
convened
for
the
purposes
of
building
a
case
for
the
prosecution
of
a
taxpayer
under
section
239.
Thus
they
say
the
power
of
a
hearing
officer
to
subpoena
witnesses
would
be
analogous
to
a
police
officer
being
armed
with
subpoena
powers.
Presumably,
if
the
analogy
may
be
drawn
between
a
hearing
officer
conducting
a
section
231.4
inquiry
and
a
police
officer
conducting
a
criminal
investigation,
then
according
to
the
dicta
of
Iacobucci
J.,
the
powers
of
the
hearing
officer
to
subpoena
would
be
constitutionally
impermissible.
However,
I
find
there
is
a
troubling
ambivalence
at
the
root
of
this
submission.
I
am
not
satisfied
that
the
plaintiffs
are
relying
on
any
recognized
principle
of
fundamental
justice
under
section
7.
While
the
observation
of
lacobucci
J.
that
the
police
cannot
be
armed
with
subpoena
powers
can
be
taken
as
a
restatement
of
the
principle
of
self-incrimination
(including
the
principles
of
case
to
meet
and
the
right
of
a
suspect
to
remain
silent
at
the
investigative
stage
of
the
criminal
process)
the
plaintiffs
are
arguing
on
another
basis.
The
plaintiffs
say
Iacobucci
J.’s
observation
about
the
police
not
having
subpoena
powers
also
refers
to
a
more
general
right,
namely,
the
right
not
to
speak
to
the
police.
This
must
be
their
position
because
Del
Zotto
has
not
been
subpoenaed.
Their
point
is
that
third
persons
who
are
subpoenaed
have
a
fundamental
right
under
section
7
not
to
speak
to
the
police.
The
right
not
to
speak
to
the
police
was
acknowledged
to
exist
at
common
law
in
the
English
case
Rice
v.
Connolly,
[1966]
2
All
E.R.
649
(Q.B.)
in
which
a
police
officer
questioned
a
man
who
was
behaving
suspiciously
in
a
location
where
a
break
and
enter
had
recently
occurred.
The
man
refused
to
answer
where
he
was
going
or
where
he
had
come
from,
and
refused
to
give
his
name
and
address.
He
refused
to
accompany
the
officer
to
a
police
box
for
the
purposes
of
being
identified.
The
police
officer
arrested
him
on
a
charge
of
obstructing
a
constable
when
in
the
execution
of
his
duty.
It
was
held
that
no
obstruction
was
established.
In
making
this
finding,
Lord
Parker
C.J.
stated
at
652:
It
seems
to
me
quite
clear
that
though
every
citizen
has
a
moral
duty
or,
if
you
like,
a
social
duty
to
assist
the
police,
there
is
no
legal
duty
to
that
effect,
and
indeed
the
whole
basis
of
the
common
law
is
that
right
of
the
individual
to
refuse
to
answer
questions
put
to
him
by
persons
in
authority,
and
a
refusal
to
accompany
those
in
authority
to
any
particular
place,
short,
of
course,
of
arrest.
It
is
on
the
basis
of
this
right
that
the
plaintiffs
are
arguing
it
is
unconstitutional
for
a
hearing
officer
conducting
a
231.4
inquiry
to
compel
innocent
third
parties
to
testify
against
a
taxpayer
who
is
undergoing
the
equivalent
of
a
criminal
investigation.
I
note
that
although
the
right
not
to
speak
to
the
police
has
been
adopted
in
Canada
at
common
law,
it
has
not
received
recognition
as
a
principle
of
fundamental
justice
for
the
purposes
of
section
7.
Clearly,
it
would
be
inadequate
to
rely
on
an
out
of
context
reading
of
lacobucci
J’s
comment
about
police
subpoena
powers
to
decide
that
he
was
broadly
conferring
constitutional
stature
on
the
right
not
to
speak
to
the
police,
rather
than
making
the
observation
merely
to
further
his
discussion
in
S.(R.J.)
of
the
principle
of
self-incrimination.
If
lacobucci
J.,
in
making
the
observation,
was
merely
furthering
his
discussion
of
self-incrimination,
then
the
plaintiffs
have
no
basis
for
their
submission
for
the
same
reasons
that
they
could
not
rely
on
the
principle
of
case
to
meet,
right
to
silence
and
fundamental
unfairness,
namely
that
they
have
no
factual
underpinning
to
assert
self-incrimination
in
this
case.
However,
if
the
observation
of
Iacobucci
J.
can
be
construed
more
broadly
to
encompass
the
right
not
to
speak
to
the
police,
then
I
must
turn
to
entertain
whether
the
plaintiffs
are
afforded
the
protection
of
section
7
on
this
basis.
It
is
therefore
important
to
look
to
the
context
in
which
lacobucci
J.
made
the
observation.
In
S.(RJ.),
lacobucci
J.
posed
the
question
whether
the
police
could
have
subpoena
powers
in
the
context
of
discussing
the
need
for
extra
protection
beyond
a
general
compellability
rule
providing
“use
immunity”
and
“derivative
use
immunity”.
He
stated
his
primary
concern
at
535
(D.L.R.
650,
N.R.
168):
For
if
it
be
accepted
that
a
person
can
always
be
compelled
as
a
witness
and
that
protection
by
way
of
evidentiary
immunity
will
always
be
sufficient,
then
it
must
also
be
accepted
that
we
have
gone
considerable
distance
toward
diluting
the
principle
of
the
case
to
meet
without
ever
having
said
so.
lacobucci
J.
was
therefore
raising
the
prospect
that
an
absolute
compellability
rule
would
have
significant
effects
on
the
case
to
meet
principle.
He
went
on
to
identify
the
brunt
of
the
problem
by
quoting
from
Beaudoin
and
Ratushny,
The
Canadian
Charter
of
Rights
And
Freedoms,
2nd
ed.,
(Toronto:
Carswell,
1989),
at
page
535
(which
is
worthwhile
to
quote
in
part
here):
The
basic
problem
is
that
many
of
the
protections
provided
by
the
criminal
process
may
be
subverted
by
calling
the
suspect
or
accused
as
a
witness
at
some
other
proceeding
prior
to
his
criminal
trial.
It
is
true
that
such
a
witness
may
prevent
his
testimony
from
being
introduced
at
a
subsequent
criminal
trial.
However,
the
damage
may
be
done
in
other
ways.
The
earlier
hearing
might
be
used
as
a
“fishing
expedition”
to
subject
the
witness
to
extensive
questioning
with
a
view
to
uncovering
possible
criminal
conduct.
The
questioning
might
also
be
used
to
investigate
a
particular
offence.
It
was
in
this
context
that
lacobucci
J.
stated
in
S.(RJ.)
at
536
(D.L.R.
650-51,
N.R.
169-70):
To
put
the
matter
another
way,
the
Charter's
structure
as
described
above
is
founded
upon
the
Crown’s
obligation
to
make
a
case,
but
it
also
assumes
a
general
rule
of
compellability
coupled
with
evidentiary
immunity.
If,
however,
the
Charter
places
no
limits
on
when
this
structure
may
be
invoked,
then
the
Charter
could,
in
fact,
condone
an
inquisition
of
the
most
notorious
kind.
Such
condonation
would
bespeak
an
impossible
dualism.
To
ask
a
question
by
paraphrasing
a
concern
voiced
in
Thomson
Newspapers,
supra,
at
p.
606
(per
Sopinka
J.):
are
we
prepared
to
arm
the
police
with
subpoena
powers?
I
do
not
think
that
we
are,
but
the
difficulty
lies
in
fashioning
an
acceptable
response.
Because
the
status
of
individuals
cannot
be
manipulated
in
any
meaningful
way
to
confine
the
reach
of
a
general
compellability
rule,
one
is
left
with
the
difficult
task
of
focusing
on
the
character
of
proceedings
at
which
testimony
is
sought
to
be
compelled.
This
is
a
task
which
I
do
not
relish,
but
it
seems
|
absolutely
demanded
by
the
structure
of
the
Charter.
|
|
|
Upon
reading
the
observation
as
it
was
put
in
|
it
becomes
clear
|
that
lacobucci
J.
posed
the
question
“are
we
prepared
to
arm
the
police
with
subpoena
powers?”
in
the
context
of
a
concern
that
the
state
may
use
a
proceeding
to
circumvent
the
protections
that
are
afforded
to
a
suspect
or
an
accused
in
the
criminal
process.
The
underlying
concern
is
that
an
individual
should
not
be
compellable
to
testify
against
himself
at
a
proceeding
that
is
a
criminal
investigation,
whether
the
investigation
is
a
straightforward
one
conducted
by
the
police,
or
it
is
de
facto
a
criminal
investigation
conducted
in
some
other
guise,
ostensibly
as
a
public
inquiry,
or
as
a
preliminary
hearing,
or
the
trial
of
another
person.
In
terms
of
whether
such
an
ostensible
use
of
a
section
231.4
inquiry
would
be
possible,
if
it
were
the
case
that
a
hearing
officer
issued
a
subpoena
to
a
taxpayer
who
was
under
investigation
pursuant
to
section
239
of
the
Income
Tax
Act,
the
taxpayer
could
challenge
whether
he
was
compellable
not
merely
on
the
basis
of
an
observation
that
the
police
cannot
have
subpoena
powers,
but
also
pursuant
to
the
predominant
purpose
test
laid
out
by
the
Supreme
Court
in
Branch.
Branch
stands
for
the
proposition
that
police
cannot
have
subpoena
powers
because,
according
to
the
predominant
purpose
test,
the
authorities
cannot
hide
behind
the
veneer
of
a
nominally
administrative
proceeding
in
order
to
conscript
an
individual
who
is
the
target
of
a
criminal
investigation
into
giving
self-incriminating
testimony.
If
the
predominant
purpose
of
the
inquiry
is
that
of
building
a
case
against
the
taxpayer
for
the
purposes
of
a
criminal
or
quasi-criminal
prosecution,
then
the
taxpayer
will
receive
constitutional
protection
under
section
7
from
being
conscripted
against
himself
by
means
of
the
subpoena
based
on
the
principle
of
self-incrimination.
Therefore,
the
observation
as
to
the
police
having
power
to
subpoena
is
rooted
in
a
concern
based
on
the
principle
of
self-incrimination
rather
than
a
general
right
not
to
speak
to
the
police.
In
the
case
at
bar,
if
Del
Zotto
had
been
subpoenaed,
I
would
have
been
obliged
to
make
a
finding,
not
by
testing
the
soundness
of
an
analogy
between
the
hearing
officer
and
a
police
officer
in
the
course
of
a
criminal
investigation,
but
by
using
the
predominant
purpose
test
in
Branch
to
answer
the
question
whether
Del
Zotto
would
be
exempted
from
being
compelled
by
the
protection
afforded
by
section
7
based
on
the
principle
of
self-incrimination.
However,
Del
Zotto
has
not
been
subpoenaed.
I
conclude
that
the
obiter
of
lacobucci
J.
is
not
based
on
the
right
not
to
speak
to
the
police.
Thus,
I
find
the
plaintiffs
have
no
ground
on
which
to
invoke
section
7
in
respect
of
the
observation
of
Iacobucci
J.
that
the
police
do
not
have
subpoena
powers.
As
to
whether
the
plaintiffs
can
bring
a
challenge
to
section
231.4
and
the
Inquiry
based
purely
on
the
right
not
to
speak
to
the
police,
independently
of
any
connection
with
the
dicta
of
Iacobucci
J.
in
S.(RJ.),
I
find
that
the
plaintiffs
have
provided
no
support
for
the
proposition
that
the
right
not
to
speak
is
a
right
afforded
by
section
7
of
the
Charter.
While
they
have
asserted
that
the
right
not
to
speak
to
the
police
is
a
constitutional
right,
they
have
made
no
substantive
submissions
to
this
effect
(except
that
the
dicta
of
lacobucci
J.
gave
it
such
a
status,
which
is
a
submission
I
have
already
dispensed
with),
nor
have
they
attempted
to
show
how
the
right
would
apply
in
this
case.
It
is
clear
that
Del
Zotto
is
not
being
asked
any
questions
by
the
police
or
any
person
in
authority
in
the
context
of
the
Inquiry,
so
the
right
cannot
apply
to
protect
him.
Nor
have
they
explained
how
or
why
Noble
is
entitled
to
section
7
protection
in
this
case.
In
conclusion,
I
can
identify
no
basis
under
section
7
on
which
the
plaintiffs
can
make
out
a
challenge
against
subsection
231.4
of
the
Income
Tax
Act,
or
the
Inquiry
convened
to
investigate
the
financial
affairs
of
Del
Zotto,
or
the
subpoena
issued
to
Noble
by
the
respondents.
I
find,
therefore,
that
section
7
has
no
application
in
this
case.
Section
8
Section
8
of
the
Charter
was
given
an
interpretive
foundation
in
Hunter
v.
Southam,
[1984]
2
S.C.R.
145,
84
D.T.C.
6467,
11
D.L.R.
(4th)
641,
in
which
the
Supreme
Court
established
that
section
8
guaranteed
a
broad
and
general
right
for
individuals
to
be
secure
from
unreasonable
searches
and
seizures.
In
Hunter,
several
Combines
Investigation
officers
entered
the
business
premises
of
the
respondents
to
examine
and
seize
documents
pursuant
to
subsection
10(1)
of
the
Combines
Investigation
Act,
R.S.C.
1970,
c.
C-23,
which
provided
that
the
Director
of
Investigation
and
Research
of
the
Combines
Investigation
Branch
could
authorize
searches
and
seizures.
The
issue
before
the
Supreme
Court
was
whether
the
search
and
seizure
powers
under
subsection
10(1)
of
the
Combines
Investigation
Act
were
inconsistent
with
section
8.
Dickson
J.
(as
he
then
was),
writing
for
the
majority,
laid
out
the
foundation
of
section
8
analysis
at
page
159:
The
guarantee
of
security
from
unreasonable
search
and
seizure
only
protects
a
reasonable
expectation.
This
limitation
on
the
right
guaranteed
by
s.8,
whether
it
is
expressed
negatively
as
freedom
from
“unreasonable”
search
and
seizure,
or
positively
as
an
entitlement
to
a
“reasonable”
expectation
of
privacy,
indicates
that
an
assessment
must
be
made
as
to
whether
in
a
particular
situation
the
public’s
interest
in
being
left
alone
by
government
must
give
way
to
the
government’s
interest
in
intruding
on
the
individual’s
privacy
in
order
to
advance
its
goals,
notably
those
of
law
enforcement.
Dickson
J.
went
on
to
articulate
the
Hunter
standards
under
which
a
search
and
seizure
conducted
against
an
individual
with
a
reasonable
expectation
of
privacy
may
be
established
as
a
reasonable
search.
In
1990,
the
Supreme
Court
further
developed
the
application
of
the
safeguards
provided
by
the
Hunter
standards
in
two
cases
decided
at
the
same
time:
Thomson
Newspapers
(supra,
at
page
16)
and
R.
v.
McKinlay
Transport
Ltd.,
[1990]
1
S.C.R.
627,
[1990]
2
C.T.C.
103,
90
D.T.C.
6243.
In
both
cases
the
Supreme
Court
observed
that
the
Hunter
standards
had
been
developed
in
a
criminal
or
quasi-criminal
context,
and
addressed
the
question
whether
the
same
standards
applied
to
searches
and
seizures
conducted
in
a
regulatory
or
administrative
context.
In
Thomson,
several
officers
of
the
corporation
under
investigation
were
summoned
before
the
Restrictive
Trade
Practices
Commission
to
testify
and
produce
documents
pursuant
to
section
17
of
the
Combines
Investigation
Act.
The
compulsion
to
produce
documents
before
the
Commission
was
found
to
constitute
a
“seizure”
for
the
purposes
of
section
8.
The
Supreme
Court
held,
however,
that
the
seizure
was
not
unreasonable,
and
there
was
therefore
no
breach
of
section
8.
In
addressing
the
matter
of
the
distinction
between
regulatory
or
administrative
and
criminal
or
quasi-criminal
con-
texts,
La
Forest
J.,
writing
for
the
majority,
observed
at
506
(O.A.C.
177-78,
N.R.
177-78):
The
application
of
a
less
strenuous
and
more
flexible
standard
of
reasonableness
in
the
case
of
administrative
or
regulatory
searches
and
seizures
is
fully
consistent
with
a
purposive
approach
to
the
elaboration
of
section
8.
In
McKinlay,
two
companies
under
audit
by
Revenue
Canada
were
served
with
letters
demanding
the
production
of
a
broad
array
of
documentation
pursuant
to
section
231.3
of
the
Income
Tax
Act
for
the
purposes
of
the
audit.
This
was
also
held
to
be
a
seizure
within
the
meaning
of
section
8.
With
respect
to
the
significance
of
the
context
in
which
the
seizure
took
place,
Wilson
J.,
writing
for
the
Court
(concurring
reasons
were
written
by
La
Forest,
L’Heureux-Dubé,
and
Sopinka
JJ.),
observed
at
647
(C.T.C.
113,
D.T.C.
6250):
It
is
consistent
with
this
[a
flexible
and
purposive]
approach
[to
section
8],
I
believe,
to
draw
a
distinction
between
seizures
in
the
criminal
or
quasi-criminal
context
to
which
the
full
rigours
of
the
Hunter
criteria
will
apply,
and
seizures
in
the
administrative
or
regulatory
context
to
which
a
lesser
standard
may
apply
depending
upon
the
legislative
scheme
under
review.
In
the
case
at
bar,
the
issue
under
section
8
is
whether
the
Hunter
standards
apply
to
section
231.4
of
the
Income
Tax
Act
and
the
Inquiry.
The
plaintiffs
have
submitted
that
section
231.4
infringes
section
8
because
subsection
231.4(3)
provides
to
a
hearing
officer
the
power
to
subpoena
witnesses
duces
tecum,
which
constitutes
a
seizure
conducted
without
a
warrant
or
reasonable
or
probable
grounds.
They
maintain
that
when
section
231.4
is
used
to
investigate
the
financial
affairs
of
a
taxpayer
in
order
to
build
a
case
for
prosecution
under
section
239
of
the
Income
Tax
Act,
the
context
of
the
seizure
is
clearly
criminal
and
therefore
the
Hunter
standards
must
apply.
The
plaintiffs
have
made
extensive
submissions
to
the
effect
that
section
239
of
the
Income
Tax
Act
is
a
criminal
provision.
They
have
drawn
especially
on
the
decision
in
Knox
Contracting
Ltd.
v.
R.
(sub
nom.
Knox
Contracting
Ltd.
v.
Canada),
[1990]
2
S.C.R.
338,
[1990]
2
C.T.C.
262,
90
D.T.C.
6447,
in
which
Cory
J.,
writing
for
the
majority,
observed
at
page
348—49
(C.T.C.
267,
D.T.C.
6450):
Section
231.3
provides
for
the
issuance
of
search
warrants
where
they
may
afford
evidence
of
an
“offence”
under
the
Act.
Section
239
describes
those
offences.
They
are
by
their
very
nature
criminal.
Upon
reading
section
239
the
key
descriptive
words
spring
from
the
page,
such
as:
“false
or
deceptive
statements”,
“to
evade
payment
of
a
tax
imposed
by
this
Act,
destroyed,
altered,
mutilated,
secreted
...
records”,
“false
or
deceptive
entries”
and
“wilfully
...
evaded”.
The
section
speaks
of
fraud,
deception,
destruction
and
alteration
of
documents,
false
Statements,
false
documents
and
the
wilful
evasion
of
income
tax.
It
is
readily
apparent
that
those
who
commit
these
offences
have
deliberately
committed
acts
which
by
their
very
nature
come
well
within
the
definition
of
what
constitutes
criminal
law.
The
offences
described
in
section
239
are
“clearly
harmful
to
the
State”.
The
fact
that
these
offences
may
be
prosecuted
upon
indictment
and
that
terms
of
imprisonment
of
up
to
5
years
may
be
imposed
serves
to
further
strengthen
the
conclusion
that
these
offences
are
criminal
in
nature.
The
plaintiffs
have
also
presented
extensive
evidence
from
T.O.M.
to
establish
that
the
Special
Investigations
Branch
of
Revenue
Canada
is
conducting
a
“criminal”
type
of
investigation
when
it
instigates
a
section
231.4
inquiry
to
investigate
a
taxpayer.
Moreover,
they
have
closely
examined
the
statutory
history
of
section
231.4
and
have
shown
how,
although
the
provision
began
as
a
regulatory
instrument,
it
has
for
a
considerable
number
of
years
been
re-oriented
by
amendment
and
employed
by
Revenue
Canada
solely
as
a
criminal
investigatory
instrument.
I
note
that
a
finding
that
section
239
is
“criminal”
does
not
mean,
as
the
plaintiffs
have
argued,
that
the
seizure
made
against
Del
Zotto
is
ipso
facto
unreasonable,
requiring
application
of
the
Hunter
standards
to
a
section
231.4
inquiry.
Perhaps
if
it
was
a
matter
of
choosing
categorically
between
a
regulatory
or
administrative
context
on
one
hand
(in
which
the
standards
do
not
apply)
and
a
criminal
or
quasi-criminal
context
on
the
other
(in
which
the
standards
always
apply),
the
plaintiffs
might
establish
a
breach
of
section
8
simply
on
the
basis
that
the
context
is
criminal
or
quasi-criminal,
for
it
is
not
in
dispute
that
subsection
231.4(3)
provides
for
warrantless
seizures
contrary
to
the
Hunter
criteria.
However,
the
determination
is
not
based
solely
on
the
categorization
as
between
regulatory
or
administrative
and
criminal
or
quasi-criminal
contexts.
In
keeping
with
the
flexible
and
purposive
approach
taken
to
section
8,
the
Supreme
Court
clarified
the
matter
of
the
significance
of
the
distinction
between
regulatory
and
criminal
contexts
in
Baron
v.
Canada,
[1993]
1
S.C.R.
416,
[1993]
1
C.T.C.
111,
93
D.T.C.
5018.
In
Baron
officers
of
Revenue
Canada
sought
and
were
granted
a
search
warrant
pursuant
to
section
231.3
of
the
Income
Tax
Act
from
the
Federal
Court,
Trial
Division.
The
issue
was
whether
section
231.3
infringed
section
8
on
the
ground
that
the
wording
of
the
section
(that
a
judge
“shall
issue
the
warrant”)
left
no
residual
discretion
for
the
judge
to
refuse
to
issue
the
warrant.
The
Supreme
Court
struck
down
section
231.3
of
the
Income
Tax
Act
on
the
ground
that
the
wording
of
the
section
removed
the
residual
discretion
that
was
required
by
section
8.
On
the
issue
of
the
context
of
the
search
and
seizure,
Sopinka
J.,
writing
for
the
majority,
observed
at
page
443
(C.T.C.
124,
D.T.C.
5027):
At
page
649
[McKinlay
Transport],
Wilson
J.
recognized
that
relaxation
of
the
Hunter
standards
with
respect
to
the
demand
provisions
by
reason
of
the
characterization
of
the
statutory
provision
as
regulatory
would
not
validate
all
forms
of
searches
and
seizures
under
the
ITA.
She
continued:
The
state
interest
in
monitoring
compliance
with
the
legislation
must
be
weighed
against
an
individual’s
privacy
interest.
The
greater
the
intrusion
into
the
privacy
interests
of
an
individual,
the
more
likely
it
will
be
that
safeguards
akin
to
those
in
Hunter
will
be
required.
Thus,
when
the
tax
officials
seek
entry
onto
the
private
property
of
an
individual
to
conduct
a
search
or
seizure,
the
intrusion
is
much
greater
than
a
mere
demand
for
production
of
documents.
The
point
is
that
the
characterization
of
certain
offences
and
statutory
schemes
as
“regulatory”
or
“criminal”,
although
a
useful
factor,
is
not
the
last
word
for
the
purpose
of
Charter
analysis.
[Emphasis
added.]
Thus,
a
determination
of
the
applicability
of
the
Hunter
standards
does
not
hinge
on
whether
the
context
of
the
search
and
seizure
is
“criminal”
or
“regulatory”,
although
that
is
a
factor
to
be
considered.
A
full
weighing
of
all
the
circumstances
is
required.
For
this
task,
the
Supreme
Court
developed
a
scale
of
interests
as
discussed
by
Sopinka
J.
in
Baron
at
pages
444-45
(C.T.C.
124,
D.T.C.
5027):
Physical
search
of
a
private
premises
...
is
the
greatest
intrusion
of
privacy
short
of
a
violation
of
bodily
integrity.
It
is
quite
distinct
from
compelling
a
person
to
appear
for
examination
under
oath
and
to
bring
with
them
certain
documents,
under
a
subpoena
duces
tecum
(Thomson
Newspapers),
or
to
produce
documents
on
demand
(McKinlay
Transport).
Both
La
Forest
and
L’Heureux-Dubé
JJ.
acknowledged
in
Thomson
Newspapers
at
pp.
520
and
594,
respectively,
that
the
power
to
search
premises
is
more
intrusive
of
an
individual’s
privacy
than
the
mere
power
to
order
the
production
of
documents.
The
determination
as
to
intrusiveness
of
a
search
and
seizure
takes
place
on
this
scale,
starting
with
bodily
integrity
as
the
greatest
intrusion,
and
ranging
to
the
least
form
of
intrusion,
namely,
requests
for
the
production
of
documents.
In
keeping
with
McKinlay,
“[t]he
greater
the
intrusion
into
the
privacy
interests
of
an
individual,
the
more
likely
it
will
be
that
safeguards
akin
to
those
in
Hunter
will
be
required”.
I
find
that
on
the
facts,
the
case
at
bar
resembles
the
case
of
Thomson,
in
the
sense
that
the
modus
operandus
of
a
tax
inquiry
involves
“compelling
a
person
to
appear
for
examination
under
oath
and
to
bring
with
them
certain
documents,
under
a
subpoena
duces
tecum".
For
the
purposes
of
the
scale
of
interests
articulated
in
Baron,
this
would
place
the
Inquiry
as
a
lesser
form
of
intrusion
than
a
search
of
private
premises.
The
present
case
also
resembles
Thomson
in
that
the
plaintiffs’
expectation
of
privacy
pertains
to
business
affairs,
which
is
relatively
low
in
comparison
with
matters
of
a
personal
or
intimate
nature
(see
Thomson
at
page
517
(O.A.C.
190,
N.R.
190))
or
an
expectation
of
privacy
based
on
personal
integrity
and
dignity
which
provides
the
core
of
the
need
to
protect
individuals
from
unreasonable
searches
and
seizures.
In
keeping
with
Thomson,
the
Inquiry
would
not
require
the
application
of
the
Hunter
standards.
However,
to
distinguish
Thomson,
the
plaintiffs
have
submitted
that
their
concern
is
not
merely
against
an
intrusion
in
the
form
of
a
subpoena
duces
tecum
under
which
witnesses
would
be
obliged
to
produce
business
records,
and
against
which
the
witnesses
would
have
relatively
little
expectation
of
privacy.
Rather,
they
maintain
that
the
Inquiry
taken
as
a
whole
constitutes
an
intrusion
of
Del
Zotto’s
privacy
in
the
setting
in
which
he
conducts
his
business
affairs.
They
maintain
that
Del
Zotto
will
suffer
serious
prejudice
in
conducting
his
business
affairs
because
his
relationships
with
his
business
acquaintances
will
be
upset
if
those
acquaintances
are
subpoenaed
to
testify
and
produce
documents
at
the
Inquiry.
Along
this
line,
they
say
that
on
a
comparative
basis,
the
Inquiry
constitutes
a
greater
intrusion
to
Del
Zotto’s
privacy
than
a
search
of
his
home.
Thus,
their
position
is
that
in
respect
to
the
scale
of
interests
articulated
in
Baron,
an
Inquiry
is
more
intrusive,
and
Del
Zotto’s
expectation
of
privacy
is
more
considerable,
than
a
physical
search
of
private
premises,
and
on
this
basis
the
Hunter
standards
must
apply.
The
submission
by
the
plaintiffs
that
a
seizure
under
section
231.4
will
cause
prejudice
to
Del
Zotto’s
relationships
in
his
business
community
is
a
concern
that
La
Forest
J.
addressed
in
Thomson
at
pages
507-08
(O.A.C.
179,
N.R.
179):
For
reasons
that
go
to
the
very
core
of
our
legal
tradition,
it
is
generally
accepted
that
the
citizen
has
a
very
high
expectation
of
privacy
in
respect
of
such
[criminal]
investigations.
The
suspicion
cast
on
persons
who
are
made
the
subject
of
a
criminal
investigation
can
seriously,
and
perhaps
permanently,
lower
their
standing
in
the
community.
This
alone
would
entitle
the
citizen
to
expect
that
his
or
her
privacy
would
be
invaded
only
when
the
state
has
shown
that
it
has
serious
grounds
to
suspect
guilt...
The
stigma
inherent
in
a
criminal
investigation
requires
that
those
who
are
innocent
of
wrongdoing
be
protected
against
over-
zealous
or
reckless
use
of
the
powers
of
search
and
seizure
by
those
responsible
for
the
enforcement
of
the
criminal
law.
[Emphasis
added.]
La
Forest
J.
went
on
to
find
that
the
expectation
of
privacy
of
the
directors
subjected
to
the
requirements
of
an
inquiry
conducted
pursuant
to
section
17
of
the
Combines
Investigation
Act
was
less
than
that
of
persons
under
criminal
investigation.
La
Forest
J.
observed
that
the
Combines
Investigation
Act
regulated
conduct
on
the
basis
of
broad
economic
or
utilitarian
concerns
rather
than
moral
reprehendsibility.
He
stated
at
page
510
(O.A.C.
182,
N.R.
182):
It
is,
in
short,
not
conduct
which
would
be
generally
regarded
as
by
its
very
nature
criminal
and
worthy
of
criminal
sanction.
It
is
conduct
which
is
only
criminal
in
the
sense
that
it
is
in
fact
prohibited
by
law...
It
is
conduct
which
is
made
criminal
for
strictly
instrumental
reasons.
To
support
his
finding
as
to
the
juristic
character
of
the
Combines
Investigation
Act,
La
Forest
J.
compared
it
with
the
Income
Tax
Act
at
page
515
(O.A.C.
188-89,
N.R.
188-89):
As
a
final
comment,
I
would
point
out
that
the
Combines
Investigation
Act
is
not,
as
regards
sanctions,
unlike
the
Income
Tax
Act.
Under
section
239
of
the
latter
Act,
a
taxpayer
can
be
liable
to
imprisonment
to
a
term
“not
exceeding
5
years”,
provided
he
is,
at
the
election
of
the
Attorney-General
of
Canada,
proceeded
against
by
way
of
indictment.
The
offences
in
relation
to
which
this
punishment
can
be
imposed
are
defined
in
section
239(1)...
All
of
these
offences
relate
to
conduct
that
might
well
be
discovered
by
the
exercise
of
the
power
to
order
the
production
of
documents
which
section
231(3)
confers
on
the
Minister
of
National
Revenue.
This
has
not
prevented
this
Court
from
characterizing
section
231(3)
as
a
regulatory
or
administrative
power
of
investigation;
see
R.
v.
McKinlay
Transport
Ltd.,
supra.
I
do
not
see
why
we
should
regard
the
possibility
of
imprisonment
as
having
a
different
effect
in
the
case
of
section
17
of
the
Combines
Investigation
Act.
To
recapitulate,
the
relevance
of
the
regulatory
character
of
the
offences
defined
in
the
Act
is
that
conviction
for
their
violation
does
not
really
entail,
and
is
not
intended
to
entail,
the
kind
of
moral
reprimand
and
stigma
that
undoubtedly
accompanies
conviction
for
the
traditional
“real”
or
“true”
crimes.
It
follows
that
investigation
for
purposes
of
the
Act
does
not
cast
the
kind
of
suspicion
that
can
affect
one's
standing
in
the
community
and
that,
as
was
explained
above,
entitles
the
citizen
to
a
relatively
high
degree
of
respect
for
his
or
her
privacy
on
the
part
of
investigating
authorities.
[Emphasis
added.]
As
already
stated,
Baron
has
shifted
the
emphasis
of
a
section
8
analysis
away
from
a
discussion
which
labels
an
investigation
as
“administrative”
or
“criminal”,
and
thus
the
reasoning
in
Thomson
is
to
some
extent
tempered
in
this
regard.
In
Baron,
Sopinka
J.
did
not
find
it
necessary
to
decide
whether
section
239
was
criminal.
Instead,
he
focused
on
the
degree
of
intrusiveness
of
the
search
and
seizure,
and
relied
on
Thomson
to
distinguish
between
the
high
degree
of
intrusiveness
of
a
search
and
seizure
on
the
tax-
payer’s
premises
and
an
inquiry
in
which
a
seizure
is
conducted
in
the
form
of
a
subpoena
duces
tecum.
In
Baron,
Sopinka
J.
made
no
mention
of
Knox.
More
specifically,
he
did
not
comment
on
Cory
J.’s
finding
that
section
239
of
the
Income
Tax
Act
was
a
criminal
provision
(Cory
J.
sat
on
the
Court
in
Baron
and
made
no
dissent
in
the
matter).
I
take
it,
therefore,
that
in
adopting
Thomson
which
established
the
scale
of
interests
as
to
the
intrusiveness
of
searches
and
seizures,
Sopinka
J.
affirmed
the
Supreme
Court’s
findings
in
Thomson
to
the
effect
that
inquiries
under
which
individuals
are
required
to
give
evidence
under
oath
and
to
produce
documents
do
not
have
a
degree
of
intrusiveness
which
require
the
application
of
the
Hunter
standards.
The
fact
that
in
Thomson,
La
Forest
J.
makes
an
explicit
link
between
sanctions
in
what
was
then
the
Combines
Investigations
Act
and
section
239
of
the
Income
Tax
Act
tends
to
reinforce
the
application
of
Thomson
to
the
present
case.
The
plaintiffs’
submission
that
Del
Zotto
will
suffer
prejudice
in
his
business
relations
as
a
result
of
the
Inquiry
pursuant
to
section
231.4
does
not
further
their
case
with
respect
to
the
degree
of
privacy
that
may
be
reasonably
expected.
Nor
are
the
plaintiffs
assisted
by
the
argument
that
Del
Zotto
would
find
Revenue
Canada
entering
his
home
and
conducting
a
search
less
intrusive
than
Revenue
Canada
conducting
an
inquiry
and
issuing
subpoenas
to
individuals
with
whom
he
is
conducting
business.
Baron
and
Thomson
indicate
that
the
determination
as
to
a
reasonable
expectation
of
privacy
and
when
the
Hunter
standards
apply
is
not
dependant
on
what
an
individual
prefers.
The
expectation
of
privacy
an
individual
is
entitled
to
expect
regarding
a
home
compared
with
that
regarding
a
place
of
business
and
the
production
of
business
documents
was
set
out
by
La
Forest
J.
in
Thomson
at
page,
pages
521-22
(O.A.C.
195-96,
N.R.
195-96):
The
proposition
that
those
associated
with
a
business
have
a
greater
privacy
interest
in
the
physical
integrity
of
their
homes
than
in
the
records
and
documents
of
that
business
should
require
no
demonstration.
But
this
hardly
means
that
a
significant
privacy
interest
does
not
also
subsist
in
relation
to
one’s
business
premises.
While
it
can
fairly
be
said
that
business
records
do
not
usually
contain
information
relating
to
one’s
personal
affairs,
opinions
and
associations,
the
same
cannot
be
said
with
confidence
of
everything
that
may
be
found
or
observed
in
business
files
or
premises.
People
who
work
in
offices
(the
type
of
workplace
that
would
typically
be
searched
under
combines
legislation)
think
of
their
own
offices
as
personal
space
in
a
manner
somewhat
akin
to
the
way
in
which
they
view
their
homes,
and
act
accordingly.
In
part
this
reflects
an
understandable
need
to
humanize
an
environment
in
which
people
spend
a
good
deal
of
their
waking
hours.
It
may,
in
part,
reflect
the
simple
reality
that
human
life
is
not
divisible
into
mutually
exclusive
compartments
of
professional
and
personal
which
correspond
with
the
office
and
the
home.
Indeed,
an
office
may
actually
be
more
private
than
the
home
in
so
far
as
one’s
relations
with
family
are
concerned.
Whatever
the
reason,
it
is
a
fact
that
in
an
office
one
is
likely
to
find
personal
letters,
private
telephone
and
address
directories,
and
many
other
indicators
of
the
personal
life
of
its
occupant.
The
requirement
to
submit
to
a
search
of
business
premises
by
agents
of
the
state
can
therefore
amount
to
a
requirement
to
reveal
aspects
of
one’s
personal
life
to
the
chilling
glare
of
official
inspection.
It
seriously
invades
the
right
to
be
secure
against
unreasonable
search
and
seizure.
This
is
not
the
case
with
a
power
to
order
the
production
of
records
and
documents
relevant
to
the
investigation
of
anti-competitive
offences;
there
the
eyes
of
the
state
can
see
no
further
than
the
business
records
it
is
entitled
to
demand.
[Emphasis
added.]
In
keeping
with
Baron
and
Thomson,
the
degree
of
privacy
that
the
plaintiffs
can
expect
against
the
Inquiry
with
respect
to
their
business
affairs
is
relatively
low,
and
does
not
require
the
protections
afforded
by
the
Hunter
standards.
Therefore,
neither
section
231.4
nor
the
Inquiry
are
unconstitutional
under
section
8
of
the
Charter.
Conclusion
I
find
that
section
231.4
of
the
Income
Tax
Act,
and
the
Inquiry
convened
to
investigate
the
financial
affairs
of
Del
Zotto
do
not
infringe
either
section
7
or
8
of
the
Charter.
The
action
is
dismissed.
At
the
close
of
trial,
costs
were
reserved.
Any
party
wishing
to
pursue
the
matter
of
costs
may
contact
the
Registrar
to
arrange
a
convenient
time
for
submissions
to
be
made,
probably
by
conference
call.
Action
dismissed.
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