Strayer,
J.:
—
Remedies
Sought
These
are
applications
for
a
writ
of
prohibition
with
certiorari
in
aid
or
simply
for
certiorari
to
quash
the
authorization
by
the
Deputy
Minister
of
Revenue
Canada
of
the
holding
of
an
inquiry
into
the
financial
affairs
of
the
applicants,
and
for
a
writ
of
prohibition
with
certiorari
in
aid
or
simply
for
certiorari
to
quash
a
subpoena
issued
to
the
applicant
Raymond
Quenneville
dated
January
6,
1989
compelling
him
to
attend
and
give
evidence
at
the
said
inquiry.
Facts
On
April
14,
1988
officers
of
Revenue
Canada
obtained
a
search
warrant
to
search
the
personal
residence
of
the
applicant
Raymond
Quenneville
for
various
banking
and
accounting
records
pertaining
to
him
and
his
wife
and
to
the
corporate
applicants.
The
suspected
offences
of
Raymond
Quenneville
in
respect
of
which
the
warrant
was
issued
were
those
of
making
false
statements
in
income
tax
returns
for
the
years
1983,
1984,
1985
and
1986
and
wilful
evasion
of
payment
of
tax
for
those
years.
The
warrant
was
obtained
on
the
basis
of
sworn
information
of
a
Revenue
Canada
officer
stating
reasonable
and
probable
grounds
to
believe
that
Quenneville
had
committed
such
offences
under
the
Income
Tax
Act.
The
information
did
state
also
that
the
informant
had
reasonable
and
probable
grounds
to
believe
that
the
corporate
applicants
had
received
secret
commissions
within
the
meaning
of
section
383
of
the
Criminal
Code
and
that
such
commissions
were
taxable
benefits
in
the
hands
of
Raymond
Quenneville.
Subsequently,
an
inquiry
was
established
under
section
231.4
of
the
Income
Tax
Act.
That
section
provides
as
follows:
231.4
(1)
The
Minister
may,
for
any
purpose
related
to
the
administration
or
enforcement
of
this
Act,
authorize
any
person,
whether
or
not
he
is
an
officer
of
the
Department
of
National
Revenue,
to
make
such
inquiry
as
he
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
he
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
him
to
the
Minister,
to
receive
a
transcript
of
the
evidence
given
by
him.
(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
his
counsel,
or
either
of
them,
would
be
prejudicial
to
the
effective
conduct
of
the
inquiry.
On
November
29,
1988
the
Tax
Court
of
Canada
appointed
John
Weir
as
a
hearing
officer
before
whom
an
inquiry
was
to
be
held
"into
the
financial
affairs"
of
the
applicants
named
in
this
motion.
Such
appointment
was
made
on
application
of
the
Minister
under
subsection
231.4(2)
of
the
Income
Tax
Act.
On
January
6,
1989
the
hearing
officer
issued
a
subpoena
to
the
applicant
Raymond
Quenneville
requiring
him
to
give
evidence
on
all
matters
within
his
knowledge
relating
to
"the
financial
affairs’
of
the
corporate
and
individual
applicants
in
the
present
proceeding.
The
inquiry
has
been
postponed
pending
the
disposition
of
this
application.
In
these
motions
the
applicants
seek
to
quash
both
the
inquiry
itself
authorized
under
subsection
231.4(1)
which
is
to
be
held
before
the
hearing
officer,
and
the
subpoena
issued
to
Mr.
Quenneville.
The
only
evidence
produced
in
support
of
the
motions
is
an
affidavit
of
Mr.
Quenneville
setting
out
the
above
facts.
In
it
he
asserts
a
belief
that
a
purpose
of
the
inquiry
is
to
obtain
information
to
support
a
prosecution
against
him.
He
says
at
least
twice
that
in
his
opinion
the
inquiry
is
an
attempt
of
"conscripting"
him
against
himself.
As
the
inquiry
has
not
commenced
he
could
not
point
to
any
question
put,
or
document
demanded,
which
would
have
this
effect.
In
an
extended
cross-examination
on
this
affidavit
he
was
unwilling
or
unable
to
give
any
specific
example
of
possible
self-incrimination,
even
though
he
invoked
before
the
cross-examination
the
protection
of
the
Canada
Evidence
Act
and
the
Ontario
Evidence
Act.
Issues
Although
in
their
notices
of
motion
the
applicants
relied
on
sections
7,
8,
11(c)
and
13
of
the
Canadian
Charter
of
Rights
and
Freedoms,
the
actual
argument
had
a
somewhat
different
focus.
It
was
conceded
that
neither
paragraph
11(c)
nor
section
13
of
the
Charter
directly
applied
to
the
holding
of
the
inquiry
or
the
obligation
of
Mr.
Quenneville
to
testify.
Instead,
the
issues
as
argued
are
essentially
the
following:
(1)
Do
these
proceedings
contravene
section
7
of
the
Charter
by
creating
the
possibility
that
the
applicants
will
be
obliged
to
divulge
information
or
documents
which
could
be
used
to
incriminate
them
in
some
future
prosecution?
(2)
Does
the
compulsion
to
produce
documents
as
required
in
the
subpoena
duces
tecum
issued
to
Mr.
Quenneville
amount
to
an
unlawful
search
or
seizure
within
the
meaning
of
section
8
of
the
Charter?
(3)
Does
the
process
violate
paragraph
2(d)
of
the
Canadian
Bill
of
Rights?
Conclusions
Some
general
observations
are
first
in
order.
While
the
applicants
include
in
their
plea
for
relief
a
request
that
I
find
section
231.4
invalid
on
its
face
as
contravening
the
Charter,
I
do
not
think
their
argument
begins
to
support
such
a
conclusion.
There
is
nothing
on
the
face
of
the
section
to
require
that
it
be
used
in
a
way
contravening
the
Charter.
It
is
clear
that
the
section
could
also
apply
to
the
obtaining
of
information
and
evidence
from
third
parties
who
would
in
no
way
be
incriminated
by
the
production
of
that
evidence,
even
though
such
information
or
evidence
might
assist
in
a
future
prosecution
of
the
applicants.
Further
it
is
clear
that
some
of
the
Charter
and
common
law
rights
upon
which
the
applicants
rely
have
no
application
to
corporations
and
thus
the
section
has
uses,
where
the
taxpayer
is
a
company,
which
are
not
governed
by
the
Charter.
Also,
the
applicants
have
advanced
their
arguments
on
the
assumption
that
there
is
a
direct
and
necessary
link
between
this
inquiry
and
future
prosecutions,
whether
they
be
under
the
Income
Tax
Act
or
the
Criminal
Code.
The
applicants
have
abandoned
any
assertion
that
the
inquiry
has
been
undertaken
for
purposes
other
than
specified
in
subsection
231.4(1),
namely
"the
administration
or
enforcement"
of
the
Income
Tax
Act.
They
do
however
assume,
without
really
demonstrating,
that
there
is
an
inevitable
or
at
least
highly
probable
progression
from
the
obtaining
of
the
search
warrant
through
the
inquiry
to
prosecutions
of
the
applicants.
Yet
no
charges
have
been
laid.
Further,
the
focus
of
the
search
warrant
was
on
possible
offences
committed
by
Raymond
Quenneville
under
the
Income
Tax
Act.
The
inquiry
is
"into
the
financial
affairs"
of
all
the
applicants.
That
the
inquiry
is
intended
to
obtain
evidence
to
be
used
against
the
applicants
in
future
prosecutions
is,
at
best,
speculative
and
this
must
colour
my
conclusions
as
to
the
applicability
of
Charter
and
Bill
of
Rights
guarantees
at
this
time.
I
would
also
add
that
most
of
the
authorities
upon
which
the
applicants
rely
consist
of
obiter
dicta
in
cases
far
removed
from
the
factual
situation
before
me.
Further,
most
of
them
involve
the
possible
exclusion
at
trial
of
evidence
obtained
in
earlier
investigations
or
proceedings.
In
the
present
case
the
inquiry
has
not
even
commenced.
No
questions
have
been
put
to
the
witness
Quenneville.
No
privilege
has
been
invoked
in
any
such
inquiry
with
respect
to
particular
questions
or
demands
for
documents.
Therefore
the
authorities
cited,
while
inspirational,
have
limited
utility
for
present
purposes.
I
shall
deal
with
each
of
the
issues
in
turn.
Section
7
of
the
Charter
At
the
outset
it
should
be
noted
that
the
guarantees
of
section
7
do
not
apply
to
corporations.
Thus
it
can
be
potentially
relevant
only
to
the
applicant
Quenneville.
Much
controversy
has
been
generated
in
the
jurisprudence,
which
I
need
not
repeat
here,
as
to
whether
section
7
of
the
Charter
which
guarantees
that:
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.
embraces
and
enlarges
upon
the
specific
rights
set
out
in
sections
8
to
14
of
the
Charter.
It
appears
to
me
that
to
find
a
procedural
guarantee
in
section
7
one
must:
first,
be
satisfied
that
the
protection
argued
for
is
one
of
the
“basic
tenets
of
our
legal
system";
and
second,
see
if
the
specific
definitions
of
rights
as
set
out
in
sections
8
to
14
must
by
necessary
implication
be
taken
to
have
excluded
from
the
general
language
of
section
7
other
guarantees
concerning
essentially
the
same
subject-matter.
Consider,
for
example,
the
principle
that
confessions
should
not
be
extracted
by
torture
and
if
so
extracted
should
not
be
admissible.
I
have
little
doubt
that
this
is
a
“basic
tenet
of
our
legal
system"
and
thus
a
“principle
of
fundamental
justice".
Nor
do
the
specific
guarantees
of
sections
8-14
deal
with
the
right
to
silence
during
investigations
or
the
admissibility
of
pre-trial
statements.
Thus
there
is
no
negative
implication
that
such
rights
should
be
excluded
from
the
content
of
section
7.
What
we
are
involved
with
in
the
present
case
is
a
potentially
far-ranging
investigation
into
the
financial
affairs
of
one
individual
and
three
companies,
all
interrelated.
On
its
face
this
inquiry
appears
to
be
for
the
purpose
of
assisting
the
M.N.R.
in
assessing
the
liability
for
income
tax
of
the
applicants.
No
threat
to
the
"liberty"
of
Mr.
Quenneville
is
raised,
except
possibly
for
refusal
to
answer
lawful
questions,
a
“danger”
any
witness
faces.
The
possibility
of
other
uses
being
made
in
future
of
the
information
obtained
is
at
this
point
purely
speculative.
I
am
not
satisfied
that
there
is
any
“basic
tenet
of
our
legal
system"
which
militates
against
such
an
inquiry
even
being
undertaken
or
a
witness
even
being
subpoenaed.
Indeed
the
Ontario
Court
of
Appeal
in
Thomson
Newspapers
Ltd.
et
al
v.
Director
of
Investigation
and
Research
held
that
any
right
to
silence
which
may
constitute
a
“principle
of
fundamental
justice”
within
section
7:
.
.
.
must
be
restricted
to
police
inquiries
and
the
like
and
the
trial
proceedings
themselves.
The
Court
upheld
in
that
case
the
validity
of
an
inquiry
conducted
under
then
section
17
of
the
Combines
Investigation
Act.
Such
inquiries
involved
the
compelling
of
evidence
from
persons
who
might
conceivably
be
later
subjected
to
prosecution
under
that
Act
along
with
their
corporations.
Similarly
a
majority
of
the
British
Columbia
Court
of
Appeal
in
Haywood
Securities
Inc.
v.
Inter-Tech
Resource
Group
Inc.
held
that
section
7
did
not
preclude
in
general
the
putting
of
questions
to
witnesses
in
an
examination
in
aid
of
execution,
a
civil
process,
even
though
such
persons
objected
that
the
answers
might
tend
to
incriminate
them
with
respect
to
pending
criminal
prosecutions.
Writing
for
the
majority,
Macfarlane,
J.A
conceded
that
it
“might
be
arguable”
that
if
the
sole
aim
and
purpose
of
the
proceeding
were
to
obtain
evidence
to
assist
the
criminal
prosecution
of
the
witness
then
perhaps
he
should
not
be
compelled
to
divulge
information
which
might
lead
to
his
conviction.
The
applicants
in
the
present
case
have
fallen
far
short
of
establishing
that
this
is
such
a
situation,
even
if
Macfarlane,
J.A.'s
obiter
dicta
were
to
be
followed.
In
short,
I
do
not
believe
it
can
be
said
that
it
is
one
of
the
basic
tenets
of
our
legal
system
that
oral
evidence
may
not
be
compelled
nor
documents
demanded,
whenever
there
is
some
possibility
the
resulting
information
—
whether
obtained
directly
or
as
a
result
of
the
original
disclosures
—
might
be
used
in
some
hypothetical
future
criminal
prosecution
against
the
person
who
made
them.
This
view
is
reinforced
in
applying
the
second
test
which
I
have
posited
—
that
of
seeking
such
implications
as
may
be
found
in
the
precise
wording
of
the
guarantees
in
sections
8
to
14.
The
relevant
guarantees
for
present
purposes
are
those
in
paragraph
11(c)
and
section
13
which
correspond
to
the
common
law
and
statutory
(Canada
Evidence
Act,
section
5)
protections.
The
language
of
these
Charter
provisions
suggest
that
they
were
carefully
designed
to
entrench
existing
legal
protections
but
to
do
no
more.
Considering
that
paragraph
11(c)
is
confined
in
its
application
to
persons
already
charged
with
an
offence
and
protects
them
only
with
respect
to
testifying
against
themselves
with
respect
to
that
offence,
is
it
plausible
that
section
7
should
be
interpreted
to
give
similar
protection
to
a
person
not
charged
with
an
offence
when
testifying
in
a
proceeding
not
in
respect
of
any
offence
with
which
he
has
been
charged?
If
so,
paragraph
11(c)
must
be
taken
to
be
meaningless
and
the
insertion
of
its
limiting
words
to
be
futile.
The
protec-
tion
given
by
section
13
to
a
person
who
is
obliged
to
testify
in
one
proceeding
with
respect
to
the
use
of
that
evidence
in
another
proceeding
clearly
contemplates
the
legal
permissibility
of
a
person
being
obliged
to
testify
in
one
proceeding
and
thereby
produce
evidence
which,
were
it
not
for
this
section,
could
constitutionally
be
used
in
a
second
proceeding.
I
therefore
am
unable
to
find
in
section
7
a
guarantee
of
the
magnitude
claimed
by
the
applicants.
I
need
not
determine
whether
in
response
to
a
given
question
at
the
inquiry
the
applicants
might
have
some
legitimate
claim
to
immunity,
nor
can
I
anticipate
the
determination
of
admissibility
of
any
such
evidence
if
presented
in
some
future
prosecution
against
these
applicants.
This
reinforces
another
reason
why
I
would,
in
any
event,
exercise
my
judicial
discretion
against
issuing
prohibition
or
certiorari
at
this
stage.
In
this
respect
I
can
do
no
better
than
to
quote
from
the
dissenting
judgment
of
Lambert,
J.A.
in
the
Haywood
Sercurities
case
which
the
applicants
have
otherwise
embraced
as
their
own.
He
stated
at
page
743:
I
should
make
it
clear
that
s.
7
of
the
Charter
does
not
confer
a
general
right
to
decline
to
answer
questions
in
civil
proceedings.
The
person
being
examined,
directly
or
through
his
counsel,
must
claim
the
privilege
and
must
state
as
the
ground
for
the
claim
that
the
answer
may
tend
to
incriminate
him.
The
statement
of
that
ground
will,
in
many
cases,
be
sufficient
to
discourage
witnesses
from
claiming
the
privilege
improperly.
After
the
privilege
has
been
claimed,
the
next
step,
if
the
privilege
is
contested,
is
for
the
question
of
whether
to
allow
the
privilege,
or
whether
to
compel
the
answer,
to
be
determined
by
the
Court.
When
the
matter
comes
before
the
Court,
the
witness
need
not
disclose
his
answer
to
the
Court.
But
he
must
show
the
basis
on
which
he
apprehends
the
criminal
prosecution,
and
the
nature
of
the
criminal
prosecution
that
he
apprehends,
and
its
general
relationship
to
the
line
of
questioning
in
the
civil
proceeding.
Taking
those
steps
will
further
discourage
a
witness
from
making
an
improper
objection.
But
if
the
witness
has
proper
grounds
for
the
objection,
he
will
be,
and
should
be,
allowed
substantial
latitude
in
reaching
his
conclusion
that
there
is
a
risk
that
his
answer
will
tend
to
incriminate
him.
In
the
present
case
the
inquiry
has
not
started;
no
questions
have
been
put;
the
witness
Quenneville
has
made
no
specific
claim
to
immunity
in
respect
of
any
specific
question;
the
applicants
have
objected
to
the
production
of
no
document;
and
none
of
them
has
shown
any
basis
upon
which
any
such
answer
or
document
might
tend
to
incriminate
him,
or
it,
with
respect
to
any
specific
alleged
criminal
offence.
Section
8
of
the
Charter
This
section
provides
that:
Everyone
has
the
right
to
be
secure
against
unreasonable
search
or
seizure.
I
believe
this
section
is
inapplicable
for
two
reasons:
there
is
no
search
or
seizure
involved
and
the
procedure
authorized
under
the
Income
Tax
Act
is
not
"unreasonable".
What
is
complained
of
here
is
the
compulsion
requiring
the
production
of
documents
by
Raymond
Quenneville
pursuant
to
the
subpoena
duces
tecum.
This
is
said
to
amount
to
a
“seizure”.
It
has
been
held
by
the
Federal
Court
of
Appeal
and
by
the
Ontario
Court
of
Appeal
that
the
execution
of
an
order
requiring
production
of
documents
is
not
a
seizure.
The
Ontario
Court
of
Appeal
has
laid
particular
emphasis
on
the
fact
that
in
the
cases
under
consideration
by
it
there
was
an
opportunity
for
the
persons
affected
by
the
order
to
challenge
it
before
it
was
executed.
That
is
clearly
the
situation
here.
In
the
first
place
the
applicants
are
able
to
bring
motions
such
as
they
have
done
in
this
case
to
challenge
the
validity
of
the
order.
Further,
subsection
231.4(4)
specifically
requires
that
before
a
hearing
officer
can
punish
anyone,
presumably
for
failure
to
obey
an
order
such
as
a
subpoena,
the
judge
of
a
superior
or
county
court
must
certify
that
the
power
to
punish
may
be
exercised.
Even
if
this
were
a
seizure,
I
would
still
not
find
it
unreasonable
at
least
on
the
basis
of
the
information
before
me.
What
is
reasonable
depends
in
part
on
whether
a
seizure
runs
counter
to
a
reasonable
expectation
of
privacy.
The
administration
of
the
Income
Tax
Act
relies
very
heavily
on
self-reporting
by
taxpayers.
It
is
the
nature
of
income
taxation
that
taxpayers
must
disclose
all
manner
of
financial
information
which
in
other
circumstances
might
be
considered
highly
personal
and
private.
Where
there
is
a
reasonable
suspicion
that
such
disclosure
has
not
been
made
then
taxation
authorities
may
have
to
seek
the
information
which
they
honestly
believe
has
not
been
provided.
No
taxpayer
has
a
reasonable
expectation
of
secrecy
vis-a-vis
Revenue
officials
in
respect
of
information,
sought
by
them
in
good
faith,
pertaining
to
his
taxable
income.
The
compelling
of
disclosure
of
such
information
therefore
conflicts
with
no
reasonable
expectation.
I
therefore
find
that
section
8
is
not
applicable
to
the
applicants
in
these
circumstances.
Paragraph
2(d)
of
the
Canadian
Bill
of
Rights
Paragraph
2(d)
of
the
Canadian
Bill
of
Rights
provides
that
no
law
of
Canada
shall
be
construed
or
applied
so
as
to
(d)
authorize
a
court,
tribunal,
commission,
board
or
other
authority
to
compel
a
person
to
give
evidence
if
he
is
denied
counsel,
protection
against
self
crimination
or
other
constitutional
safeguards.
It
is
apparent
why
this
provision
is
inapplicable
to
the
construction
or
application
of
section
231.4
of
the
Income
Tax
Act.
Subsections
231.4
(5)
and
(6)
specifically
give
a
right
to
a
witness
or
taxpayer
before
the
inquiry
to
have
counsel
when
the
witness,
or
the
person
being
investigated,
is
testifying.
Such
a
person
is
not
denied
"protection
against
self
crimination”
because
if
he
is
obliged
to
answer
a
question
and
he
thinks
the
answer
might
tend
to
incriminate
him,
he
can
invoke
the
protection
of
subsection
5(2)
of
the
Canada
Evidence
Act.
He
will
also
have
the
protection,
should
the
Crown
seek
to
use
his
evidence
given
before
the
hearing
officer
in
a
subsequent
proceeding
to
incriminate
him,
of
both
subsection
5(2)
of
the
Canada
Evidence
Act
and
section
13
of
the
Canadian
Charter
of
Rights
and
Freedoms.
As
for
any
possible
denial
of
"other
constitutional
safeguards"
I
have
already
determined
that
none
of
these
relied
on
by
the
applicants
are
applicable
in
the
circumstances.
The
applicants
also
relied
on
paragraph
2(d)
of
the
Canadian
Bill
of
Rights
as
a
basis
for
objecting
to
producing
documents
in
accordance
with
the
subpoena
duces
tecum
issued
to
Mr.
Quenneville.
It
has
been
well
established
that
this
paragraph
of
the
Canadian
Bill
of
Rights
has
application
only
to
the
testimony
of
witnesses
and
does
not
provide
protection
against
the
compulsion
of
other
forms
of
evidence.
Disposition
I
am
therefore
dismissing
both
applications
with
costs.
Applications
dismissed.
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