Reed,
J.:—This
application
is
brought
by
the
plaintiff
to
compel
the
production
for
discovery
of
two
officers
of
the
defendant
corporations,
pursuant
to
sections
465(1
)(b)
and
465(8)
of
the
Federal
Court
Rules.
The
actions
to
which
the
discovery
relate
are
five
claims
by
the
plaintiff
against
the
defendants
under
the
Customs
Act,
R.S.C.
1970,
c.
C-40.
On
the
initial
hearing
of
this
motion
the
defendants
raised
the
argument
that
discovery
should
not
be
compelled
against
them
because
to
do
so
would
be
to
infringe
paragraph
11(c)
of
the
Canadian
Charter
of
Rights
and
Freedoms.
Any
person
charged
with
an
offence
has
the
right
.
.
.
(c)
not
to
be
compelled
to
be
a
witness
in
proceedings
against
that
person
in
respect
of
the
offence.
This
argument
having
been
raised
without
prior
notice
to
either
opposing
counsel
or
the
Court,
written
argument
thereon
was
sought
from
both
parties
and
the
direction
given
that
if,
after
exchange
of
written
arguments,
either
party
wished
to
make
further
oral
representations
with
respect
to
the
paragraph
11(c)
argument
they
might
do
so.
Such
argument
was
subsequently
heard.
The
defendants
also
argue
that
regardless
of
any
Charter
argument
which
might
apply
there
is
a
common
law
rule
that
discovery
will
not
be
ordered
in
claims
for
penalties
or
forfeitures
and
that
this
rule
is
still
extant
and
applicable
to
the
present
case.
The
proceedings
under
the
Customs
Act
to
which
the
five
motions
relate
allege:
that
the
defendants
imported
goods
into
Canada;
that
they
were
required
to
present,
for
customs
purposes,
invoices
setting
forth
the
fair
market
value
of
the
goods;
that
they
provided
false
documentation
in
this
regard
to
the
Department
of
National
Revenue;
that
they
made
false
declarations
to
customs
regarding
fair
market
value;
and
in
the
alternative
that
they
undervalued
the
goods
and
thereby
defrauded
the
revenue
of
duty.
As
a
consequence
a
claim
is
made
for
unpaid
customs
duty,
unpaid
taxes
and
an
amount
attributable
to
a
deemed
forfeiture
of
the
goods:
|
duty
|
$
16,821,350.80
|
|
sales
tax
|
$
12,770,989.58
|
|
value
of
goods
|
$18,451,026.20
|
|
$148,043,366.58
|
One
of
the
five
actions
(T-707-84)
claims
unpaid
duty
and
taxes
only.
No
claim
for
forfeiture
is
made
on
that
file;
the
relevant
limitation
period
had
run
by
the
time
the
claim
was
commenced.
The
claims
for
unpaid
duties
arise
pursuant
to
sections
102*
and
22
of
the
Customs
Act.
By
virtue
of
section
58
of
the
Excise
Tax
Act,
R.S.C.
1970,
c.
E-13
the
applicable
sales
tax
is
included
in
those
claims.
The
deemed
forfeiture
arises
pursuant
to
sections
180
and
192
of
the
Customs
Act.
Subsection
180(1),
in
conjunction
with
section
18
provides
that
any
person
in
charge
of
a
vehicle
arriving
in
Canada
or
any
person
arriving
on
foot
shall
report
to
the
nearest
customs
house
and
make
a
report
respecting
the
quantities
and
value
of
goods
being
imported.
If
this
is
not
done
the
goods
are
forfeited.
Section
180
provides:
180(1)
Where
the
person
in
charge
or
custody
of
any
articles
mentioned
in
paragraph
18(b)
has
failed
to
comply
with
any
of
the
requirements
of
section
18,
all
the
articles
mentioned
in
paragraph
(b)
of
that
section
in
the
charge
or
custody
of
such
person
shall
be
forfeited
and
may
be
seized
and
dealt
with
accordingly.
(2)
If
the
articles
so
forfeited
or
any
of
them
are
not
found,
the
owner
at
the
time
of
importation
and
the
importer,
and
every
other
person
who
has
been
in
any
way
connected
with
the
unlawful
importation
of
such
articles
shall
forfeit
a
sum
equal
to
the
value
of
the
articles,
and,
whether
such
articles
are
found
or
not,
(a)
if
the
value
for
duty
of
the
articles
is
under
two
hundred
dollars,
is
further
liable
on
summary
conviction
before
two
justices
of
the
peace
to
a
penalty
not
exceeding
two
hundred
dollars
and
not
less
than
fifty
dollars,
or
to
imprisonment
for
a
term
not
exceeding
one
year
and
not
less
than
one
month,
or
to
both
fine
and
imprisonment;
and
(b)
if
the
value
for
duty
of
the
goods
is
two
hundred
dollars
or
over,
is
guilty
of
an
indictable
offence
and
liable
on
conviction
to
a
penalty
not
exceeding
one
thousand
dollars
and
not
less
than
two
hundred
dollars,
or
to
imprisonment
for
a
term
not
exceeding
four
years,
and
not
less
than
one
year,
or
to
both
fine
and
imprisonment.
[Emphasis
added.]
And
section
192:
(1)
If
any
person
(a)
smuggles
or
clandestinely
introduces
into
Canada
any
goods
subject
to
duty
under
the
value
for
duty
of
two
hundred
dollars;
(b)
makes
out
or
passes
or
attempts
to
pass
through
the
custom-house,
any
false,
forged
or
fraudulent
invoice
of
any
goods
of
whatever
value;
or
(c)
in
any
way
attempts
to
defraud
the
revenue
by
avoiding
the
payment
of
the
duty
or
any
part
of
the
duty
on
any
goods
of
whatever
value;
such
goods
if
found
shall
be
seized
and
forfeited,
or
if
not
found
but
the
value
thereof
has
been
ascertained,
the
person
so
offending
shall
forfeit
the
value
thereof
as
ascertained,
such
forfeiture
to
be
without
power
of
remission
in
cases
of
offences
under
paragraph
(a).
(2)
Every
such
person
shall,
in
addition
to
any
other
penalty
to
which
he
is
subject
for
any
such
offence,
(a)
forfeit
a
sum
equal
to
the
value
of
such
goods,
which
sum
may
be
recovered
in
any
court
of
competent
jurisdiction;
and
(b)
further
be
liable
on
summary
conviction
before
two
justices
of
the
peace
to
a
penalty
not
exceeding
two
hundred
dollars
and
not
less
than
fifty
dollars,
or
to
imprisonment
for
a
term
not
exceeding
one
year
and
not
less
than
one
month,
or
to
both
fine
and
imprisonment.
[Emphasis
added.]
The
definition
section,
section
2
of
the
Act,
provides:
“value”
in
respect
of
any
penalty,
punishment
or
forfeiture
imposed
by
this
Act
and
based
upon
the
value
of
any
goods
or
articles,
means
the
duty-paid
value
of
such
goods
or
articles
at
the
time
of
the
commission
of
the
offence
by
which
such
penalty,
punishment
or
forfeiture
is
incurred;
[Emphasis
added.]
The
claim
for
all
three
components
(duty,
taxes
and
amount
as
deemed
forfeiture)
is
brought
by
way
of
statement
of
claim
in
this
Court
pursuant
to
sections
249
and
252:
249.(1)
All
penalties
and
forfeitures
incurred
under
this
Act,
or
any
other
law
relating
to
the
customs
or
to
trade
or
navigation,
may,
in
addition
to
any
other
remedy
provided
by
this
Act
or
by
law,
and
even
if
it
is
provided
that
the
offender
shall
be
or
become
liable
to
any
such
penalty
or
forfeiture
upon
summary
conviction,
be
prosecuted,
sued
for
and
recovered
with
full
costs
of
suit,
in
the
Exchequer
Court
of
Canada,
or
in
any
superior
court
having
jurisdiction
in
that
province
of
Canada
where
the
cause
of
prosecution
arises,
or
wherein
the
defendant
is
served
with
process.
(2)
If
the
amount
of
any
such
penalty
or
forfeiture
does
not
exceed
two
hundred
dollars,
the
same
may
also
be
prosecuted,
sued
for
and
recovered
in
any
court
having
jurisdiction
to
that
amount
in
the
place
where
the
cause
of
prosecution
arises,
or
where
the
defendant
is
served
with
process.
252.
Every
prosecution
or
suit
in
the
Exchequer
Court
of
Canada,
or
in
any
superior
court
or
court
of
competent
jurisdiction,
for
the
recovery
or
enforcement
of
any
penalty
or
forfeiture
imposed
by
this
Act,
or
by
any
other
law
relating
to
the
customs
or
to
trade
or
navigation,
may
be
commenced,
prosecuted
and
proceeded
with
in
accordance
with
any
rules
of
practice,
general
or
special,
established
by
the
court
for
Crown
suits
in
revenue
matters,
or
in
accordance
with
the
usual
practice
and
procedure
of
the
court
in
civil
cases,
in
so
far
as
such
practice
and
procedure
are
applicable,
and,
whenever
the
same
are
not
applicable,
then
in
accordance
with
the
directions
of
the
court
or
a
judge.
The
plaintiff
characterizes
the
five
claims
as
debt
collection
proceedings
against
the
defendants
and
therefore
essentially
civil
in
nature.
The
defendants
on
the
other
hand
argue
that
the
forfeiture
claims
are
penal
and
quasicriminal.
Nature
of
the
Claim
I
do
not
think
there
can
be
much
dispute
that
the
commission
of
an
offence
is
involved
in
the
claim
being
made.
Subsection
192(2)
itself
refers
to
the
activity
giving
rise
to
the
forfeiture
as
an
offence,
as
does
the
definition
section
of
the
Act
itself.
All
the
same
elements
(subject
to
what
will
be
said
later
about
the
burden
of
proof)
must
be
proven
by
the
Crown
for
the
purposes
of
these
proceedings
as
would
be
necessary
to
establish
a
case
under
paragraph
180(2)(a)
for
summary
conviction,
paragraph
180(2)(b)
for
indictable
offence,
or
under
paragraph
192(2)(b)
for
summary
conviction,
as
must
be
proven
in
a
forfeiture
claim
alone
under
sections
180(2)
and
192(2)(a)
respectively.
This
is
not
a
case
such
as
Belhumeur
v.
Discipline
Committee
of
Quebec
Bar
Association
and
Quebec
Bar
Association
(1983),
34
C.R.
(3d)
279
(Que.
C.S.);
Re
James,
[1983]
2
W.W.R.
316;
143
D.L.R.
(3d)
379
(B.C.S.C.)
or
R.
v.
Wigglesworth
(1984),
11
C.C.C.
(3d)
27;
150
D.L.R.
(3d)
748
(Sask.
C.A.).
In
those
cases
it
could
be
said
that
the
one
single
act
gave
rise
to
more
than
one
legal
consequence:
eg.
a
breach
of
the
duty
a
person
owes
to
the
state;
a
private
cause
of
action
vis-à-vis
the
person
injured;
a
breach
of
the
duties
of
one's
office
or
calling.
There
are
no
such
independent
breaches
in
sections
180(2)
and
192(2)(a).
There
is
an
integral
connection
between
the
forfeiture
and
the
proceedings
by
way
of
summary
conviction
and
indictment.
The
sections
provide
alternative
or
potentially
cumulative
penalties
for
the
commission
of
the
offences
to
which
they
relate.
The
provisions
can,
for
example,
be
compared
to
the
forfeiture
provision
in
the
Narcotic
Control
Act*
What
is
more,
it
will
immediately
be
noticed
that
had
the
Crown
proceeded
by
way
of
summary
conviction
pursuant
to
paragraph
180(2)(a)
or
paragraph
192(2)(b)
for
which
a
fine
of
$200
would
be
payable,
or
by
way
of
indictable
offence
under
paragraph
180(2)(b)
for
which
a
fine
of
$1,000
would
be
payable,
there
would
be
no
doubt
that
the
Charter
guarantee
provided
for
by
paragraph
11(c)
would
apply.
In
any
event
the
plaintiff
did
not
proceed
under
these
provisions
of
the
Customs
Act.
It
proceeded
under
sections
180(2)
and
192(2)(a)
on
the
basis
of
a
deemed
forfeiture
and
claimed
an
amount,
as
noted
above,
of
$118,451,026.20
plus
the
duties
and
taxes
owing.
While
the
claims
for
unpaid
duties
and
taxes
arise
out
of
the
fact
of
importation
itself,
as
a
debt
owed,
this
is
not
true
of
the
moneys
sought
by
way
of
“deemed
forfeiture".
This
last
is
clearly
punishment
imposed
as
a
result
of
culpable
conduct;
it
is
a
penalty
imposed
on
the
person
“‘so
offending"
(in
the
French
version
“la
personne
ainsi
coupable)t;
it
is
not
a
claim
flowing
from
the
non-payment
of
duties
and
taxes
per
se
as
for
example
a
claim
for
interest
would
be.
In
the
Belhumeur
case,
cited
above,
Mr.
Justice
Hugessen
examined
French
and
English
definitions
of
"offence".
With
respect
to
the
English
definitions,
he
was
of
the
view
that
the
word
"offence"
in
the
Charter
was
reserved
for:
“le
délit
public
puni
par
l'état"
(page
283).
While
he
concluded
that
the
violation
of
an
ethical
rule
was
not
an
offence
for
the
purposes
of
section
11,
he
referred
at
pages
283
and
284
of
his
decision
to
the
definition
found
in
Wharton's
Law
Lexicon,
14th
ed.
(1983):
Offence
.
.
.
It
is
used
as
a
genus,
comprehending
every
crime
and
misdemeanour,
or
as
a
species,
signifying
a
crime
not
indictable
but
punishable
summarily,
or
by
the
forfeiture
of
a
penalty.
In
my
view,
the
present
fact
situation
fits
within
those
definitions.
It
was
sought
to
characterize
the
proceeding
as
an
in
rem
forfeiture
against
the
goods.
But
it
is
really
no
such
thing.
It
has
none
of
the
characteristics
of
an
in
rem
forfeiture.
A
usual
aspect
of
that
type
of
action
is
that
the
goods
themselves
are
proceeded
against,
regardless
of
the
identity,
conduct
or
involvement
of
the
owner
in
the
proscribed
activity^.
In
this
case
the
goods
are
not
seized
independently
of
the
identity
or
conduct
of
the
owner.
It
is
the
identity
or
conduct
of
the
owner,
importer
or
other
person
which
triggers
a
deemed
forfeiture
against
them
under
subsection
180(2).
And,
it
is
the
conduct
of
the
owner
or
other
individual,
accused
of
an
offence
under
subsection
192(1),
which
triggers
the
“deemed
forfeiture”
as
against
that
person.
And
the
amount
is
“forfeited"
from
whoever
has
committed
the
offence
regardless
of
whether
he
or
she
was
owner
of
the
goods
or
had
possession
of
them
at
the
time
the
commission
of
the
offence
occurred.
In
my
view
the
phrase
“deemed
forfeiture"
is
merely
a
way
of
describing
a
fine
imposed
on
the
person
found
to
have
committed
the
offence
described
by
subsection
192(1).
That
an
offence
is
involved
may
be
less
clear
under
subsection
180(2),
than
under
paragraphs
192(1)(b)
and
(c),
since
subsection
180(2)
seems
to
visit
a
deemed
forfeiture
on
every
person
“in
any
way
connected
with
the
unlawful
importation",
and
does
not
expressly
refer
to
the
commission
of
an
offence.
The
very
breadth
of
the
subsection
raises
a
host
of
questions
concerning
its
constitutionality
on
grounds
other
than
those
raised
in
this
case.
One
wonders,
for
example,
whether
it
is
not
constitutionally
suspect
as
contrary
to
either
sections
7
or
8
of
the
Charter.
In
any
event
those
considerations
are
not
in
argument
in
this
case,
and,
in
my
view,
the
words
requiring
a
person
upon
whom
deemed
forfeiture
is
imposed
to
be
a
person
in
some
way
“connected
with
the
unlawful
importation”
indicates
that
the
character
of
that
forfeiture
is
a
fine
for
the
commission
of
an
offence.
The
French
version
speaks
of
the
forfeiture
as
“une
amende
égale
à
la
valeur
des
articles".
It
is
argued
that
the
forfeiture
claim
is
a
debt
collection
proceeding
because:
(1)
the
forfeiture
occurs
automatically
on
the
importation
of
the
goods
in
contravention
of
the
Customs
Act;
(2)
the
goods
thereafter
become
the
property
of
the
Crown;
(3)
a
monetary
debt
is
thus
created
and;
(4)
the
actions
are
civil
proceedings
to
collect
this
ascertained
amount
of
money
alleged
due
and
owing
to
the
Crown.
This
argument
relies
on
the
comments
of
Mr.
Justice
Cattanach
in
Marun,
Tvrtko
Hardy
v.
The
Queen,
[1964]
1
Ex.
C.R.
280
at
295;
[1964]
C.T.C.
444
at
457:
The
forfeiture
under
sections
178
and
183
is
automatic
and
occurs
immediately
upon
the
unlawful
importation
by
virtue
of
section
2(1)(q)
of
the
Customs
Act
reading
as
follows:
2.(1)
In
this
Act,
or
in
any
other
law
relating
to
the
Customs,
(q)
“seized
and
forfeited",
“liable
to
forfeiture"
or
“subject
to
forfeiture",
or
any
other
expression
that
might
of
itself
imply
that
some
act
subsequent
to
the
commission
of
the
offence
is
necessary
to
work
the
forfeiture,
shall
not
be
construed
as
rendering
any
such
subsequent
act
necessary,
but
the
forfeiture
shall
accrue
at
the
time
and
by
the
commission
of
the
offence,
in
respect
of
which
the
penalty
of
forfeiture
is
imposed;
The
forfeiture
is
not
brought
about
by
any
act
of
the
Customs
officials
or
officers
of
the
Department,
but
it
is
the
legal
unescapable
consequence
of
the
unlawful
importation
of
the
goods
by
the
suppliant,
Marun.
The
goods
thereupon
became
the
property
of
the
Crown
and
no
act
by
any
officer
of
the
Crown
can
undo
that
forfeiture.
therefore,
any
defect,
if
such
existed,
in
the
notifications
and
procedure
adopted
by
the
Department
under
sections
150
and
158
is
not
material.*
[Emphasis
added.]
I
am
not
convinced
that
this
analysis
assists
the
plaintiff
in
any
way.
The
very
section
to
which
Mr.
Justice
Cattanach
referred,
2(1
)(g),
makes
it
clear
that
the
forfeiture
occurs
as
a
result
of
and
is
visited
upon
the
individual
committing
the
offence
described
in
section
192.
I
do
not
think
characterizing
the
sum
thus
deemed
to
be
owing
as
a
“debt”’
assists
the
plaintiff.
It
seems
to
me
that
a
fine
imposed
upon
a
person
consequent
upon
a
conviction
for
an
offence
in
the
criminal
courts
equally
could
be
said
to
be
a
debt
owing
to
the
Crown.
Reference
to
the
history
of
the
customs
legislation
is
essential
to
an
understanding
of
the
present
proceedings.
The
Customs
Act
obviously
has
its
roots
in
the
customs
and
navigation
laws
of
the
United
Kingdom
which
pre-date
Confederation.
In
that
context
there
was
no
need
to
characterize
provisions
of
the
law
as
criminal
or
civil.
The
customs
laws
(and
navigation
acts)
were
simply
enforced
in
the
Exchequer
Court
for
the
protection
of
the
King's
revenue.
Suits
in
the
Exchequer
for
forfeitures
were
commenced
by
civil
information,
either
by
a
Crown
Attorney
or
by
an
individual
suing
both
for
himself
and
the
statet;
they
were
either
in
personem
or
in
rem
depending
upon
the
statute
or
seizure
involvedj.
The
"Exchequer
procedure"
of
prosecuting
what
was
in
essence
a
penal
offence
by
a
civil
proceeding
was
simply
exported
to
this
side
of
the
Atlantic
and
prior
to
Confederation
became
part
of
the
pre-Confederation
laws
of
the
colonies
which
eventually
joined
to
become
Canada.
I
would
re-emphasize
that
this
case
does
not
deal
with
an
“in
rem”
forfeiture
where
goods
or
vehicles
are
seized,
for
example,
coming
across
the
border
—
where
the
goods
might
be
said
"to
speak
for
themselves".
Under
section
160
of
the
Customs
Act
where
a
forfeiture
is
incurred
a
customs
officer
reports
that
fact
to
the
Minister.
In
this
case
it
would
be
the
report
of
an
investigation
stating
that
duties
had
been
paid
on
the
basis
of
untrue
invoices
and
claiming
both
the
duties
and
taxes
owing
as
well
as
an
amount
equal
to
the
value
of
the
goods
from
the
defendants.
The
Minister,
then,
under
section
161
notifies
"the
person
alleged
to
have
incurred
the
penalty
or
forfeiture".
The
rest
of
the
procedure
under
section
161
and
following
does
not
need
to
be
discussed.
Suffice
it
to
say
that
the
Crown
ultimately
commences
action
in
this
Court
for
payment
by
the
defendants
of
the
amounts
claimed
on
the
ground
that
they
have
undervalued
the
goods,
defrauded
the
revenue,
etc.
As
noted
above,
it
is
clear
that
the
deemed
forfeiture
provisions
of
sections
180
and
192
of
the
Customs
Act
provide
for
the
imposition
of
a
penalty
for
the
commission
of
an
offence,
by
means
of
a
civil
procedure.
Common
Law
—
Privilege
Protecting
Against
Self-Incrimination
Apart
from
any
Charter
argument,
the
defendants
contend
that
discovery
is
not
available
against
them
because
a
common
law
rule
provides
that
discovery
will
not
be
granted
in
the
case
of
claims
for
penalties
or
forfeitures.
The
defendant's
common
law
argument
is
based
on
the
decision
in
Rio
Tinto
Zinc
Corpn.
v.
Westinghouse
Electric
Corpn.,
[1978]
A.C.
547;
[1978]
1
All
E.R.
434
(H.L.)
reversing
[1978]
A.C.
553;
[1977]
3
All
E.R.
703
(C.A.),
especially
the
comments
of
Lord
Denning
in
the
Court
of
Appeal
at
563
(All
E.R.
710);
and,
on
the
decision
in
Mexborough
(Earl
of)
v.
Whitwood
Urban
District
Council,
[1897]
2
Q.B.
111
(C.A.).
The
relevant
comments
of
Lord
Denning
in
the
Rio
Tinto
Zinc
case
(which
involved
the
attempt
of
an
American
court
to
obtain
documents
and
discovery
against
a
United
Kingdom
corporation
with
respect
to
an
alleged
uranium
cartel)
are
as
follows:
.
.
.
We
have
a
rule
here
against
self-incrimination.
The
common
law
has
for
centuries
held
that
a
person
is
not
bound
to
answer
a
question
which
may
render
him
liable
to
punishment,
penalty
or
forfeiture.
In
the
United
States
under
the
Fifth
Amendment
an
individual
(not
a
company)
is
entitled
to
a
privilege
by
which
he
is
not
bound
to
answer
questions
by
which
he
may
incriminate
himself.
Take
first
our
English
position.
We
discussed
it
in
the
recent
case
of
Comet
Products
U.K.
Ltd.
v.
Hawkex
Plastics
Ltd.,
[1971]
2
Q.B.
67.
I
quoted
at
p.
73
Bowen
L.J.
as
saying
in
Redfern
v.
Redfern,
[1891]
P.
139,
147:
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
criminate
himself”.
That
privilege
prevailed
in
England
until
an
inquiry
by
the
Law
Reform
Committee,
16th
Report
in
1967
(Cmn.
3472).
They
recommended
that
the
privilege
in
regard
to
forfeiture
should
be
abolished.
It
had
been
upheld
in
Earl
of
Mexborough
v.
Whitwood
Urban
District
Council,
[1897]
2
Q.B.
111.
It
was
expressly
abolished
by
the
Civil
Evidence
Act
1968,
section
16(1)(a).
The
Mexborough
case
dealt
with
the
forfeiture
of
a
lease
for
a
breach
of
a
covenant
thereof.
The
Court
of
Appeal
refused
to
grant
discovery
of
documents
or
administer
interrogatories.
Lord
Esher
in
giving
reasons
for
his
decision
stated,
at
pages
114-15:
.
.
.
I
think
that
there
are
two
rules
of
law
which
have
always
existed
as
part
of
the
common
law
of
England,
and
have
been
recognised
as
such
by
all
courts
whether
of
law
or
equity,
and
the
rights
conferred
by
them
have
never
been
taken
away
by
any
statute.
The
first
is
that,
where
a
common
informer
sues
for
a
penalty,
the
Courts
will
not
assist
him
by
their
procedure
in
any
way:
and
I
think
a
similar
rule
has
been
laid
down,
and
acted
upon
from
the
earliest
times,
in
respect
of
actions
brought
to
enforce
a
forfeiture
of
an
estate
in
land.
These
are
no
doubt
rules
of
procedure,
but
they
are
much
more
than
that:
they
are
rules
made
for
the
protection
of
people
in
respect
of
their
property,
and
against
common
informers.
There
has
been
a
great
searching
for
reasons
for
these
rules;
but
it
does
not
signify
what
the
reasons
for
them
are,
if
they
are
well
recognised
rules
which
have
existed
from
time
immemorial.
But
the
reasons
for
them
have
often
been
stated.
It
has
been
argued
that
the
reason
why
the
Courts
will
not
assist
the
plaintiff
in
an
action
for
a
penalty
is
that
it
is
a
criminal
action.
But
it
is
not.
There
is
no
such
thing
as
a
criminal
action.
An
action
for
a
penalty
is
a
civil
action
just
as
much
as
an
action
for
a
forfeiture.
The
rule
by
which
a
witness
is
protected
from
being
called
on
to
answer
questions
which
may
tend
to
criminate
himself
is
often
referred
to
in
connection
with
this
subject,
but
it
has
really
nothing
to
do
with
the
two
rules
to
which
I
have
referred.
.
.
,
.
,.
[Emphasis
added.]
In
my
view
neither
the
Rio
Tinto
case
nor
the
Mexborough
case
are
applicable
in
Canada
because
our
evidence
laws
have
a
different
legislative
history
from
those
in
the
United
Kingdom.
The
common
law
privilege
enabling
a
witness
to
refuse
to
answer
incriminating
questions
including
those
which
might
tend
to
expose
the
person
to
penalties
or
forfeitures*
was
abolished
in
Canada,
at
the
federal
level,
in
1893.
What
is
often
referred
to
as
a
subsequent
use
immunity
was
adopted
instead!.
Section
5
of
the
Evidence
Act
of
1893,
the
predecessor
of
our
present
section
provided:
No
person
[witness]
shall
be
excused
from
answering
any
question
upon
the
ground
that
the
answer
to
such
question
may
tend
to
criminate
him,
or
may
tend
to
establish
his
liability
to
a
civil
proceeding
at
the
instance
of
the
Crown
or
of
any
other
person:
Provided,
however,
that
no
evidence
so
given
shall
be
used
or
receivable
in
evidence
against
such
person
in
any
criminal
proceeding
thereafter
instituted
against
him
other
than
a
prosecution
for
perjury
in
giving
such
evidence.
There
is
no
comparable
provision
in
the
United
Kingdom
legislation.
Indeed,
quite
the
contrary
is
the
case.
When
the
common
law
position
that
parties
were
neither
competent
nor
compellable
was
altered,
with
respect
to
civil
proceedings,
in
the
United
Kingdom
by
the
Evidence
Act
of
1851,
the
right
of
a
witness
not
to
be
compelled
to
answer
incriminating
questions
was
specifically
by
statute
preserved:
s.2
On
the
trial
of
any
issue
.
.
.
the
parties
thereto,
.
..
shall,
.
.
.
be
competent
and
compellable
to
give
evidence,
...
s.3
But
nothing
herein
contained
...
shall
render
any
person
compellable
to
answer
any
question
tending
to
criminate
himself
or
herself,
.
.
.
[Emphasis
added.]
And
when
accused
persons
in
criminal
proceedings
were
rendered
competent,
their
immunity
from
being
compelled
to
be
witnesses
was
statutorily
preserved.
It
should
be
noted
that
while
the
Canadian
legislation
seems
to
distinguish
between
answers
which
may
tend
to
“Criminate”
and
those
which
tend
to
establish
liability
to
a
civil
proceeding
(penalties
and
forfeitures),
the
United
Kingdom
legislation
uses
the
term
criminate
more
broadly
as
including
liability
for
criminal
conviction,
penalties
and
forfeitures.!
Per
Goddard,
L.
J.
in
Blunt
v.
Park
Lane
Hotel
Ltd.,
[1942]
2
K.B.
253
at
257
[1942]
2
All
E.R.
187
at
189:
The
rule
is
that
no
one
is
bound
to
answer
any
question
if
the
answer
thereto
would,
in
the
opinion
of
the
judge,
have
a
tendency
to
expose
the
deponent
to
any
criminal
charge,
penalty
or
forfeiture
which
the
judge
regards
as
reasonably
likely
to
be
preferred
or
sued
for.
The
question
arises
then
whether
despite
the
abolition,
in
our
law,
of
the
privilege
to
refuse
to
answer
questions
which
incriminate
or
which
expose
a
person
to
civil
liability
there
exists
an
independent
underpinning
which
establishes
a
right
to
refuse
discovery
as
claimed
by
the
defendant.
An
answer
is
rendered
difficult
by
the
fact
that
the
origin
and
scope
of
the
discovery
rules
are
not
easy
to
ascertain.
As
noted
above,
Lord
Esher
in
the
Mexbo-
rough
case
(which
dealt
with
the
forfeiture
of
a
lease)
stated
that
the
rule
had
nothing
to
do
with
the
principle
protecting
a
person
from
selfincrimination.
What
is
more
he
framed
the
rules
as
being
applicable
when
a
plaintiff
sought
forfeiture
of
an
interest
in
land
or
brought
an
action
for
a
penalty
as
a
common
informer.
(Neither
of
which
condition
is
relevant
to
the
present
case).
However,
in
Martin
v.
Treacher
(1885-86),
16
Q.B.D.
507,
which
dealt
with
a
claim
by
a
plaintiff
as
common
informer
for
penalties
against
a
defendant
under
the
Public
Health
Act,
Lord
Esher
refused
to
allow
interrogatories
to
be
put
to
the
defendant
and
in
commenting
on
the
reasons
for
that
decision
stated
at
pages
511-12:
.
.
.
The
reasons
given
seem
substantially
to
amount
to
this:
although
the
penalty
is
not
in
strict
law
a
criminal
penalty,
yet
the
action
is
in
the
nature
of
a
criminal
charge
against
the
defendant:
it
is
obvious
in
such
a
case
that
the
action
is
of
a
fishing
character,
the
plaintiff
first
bringing
his
action
and
then
seeking
to
obtain
the
necessary
materials
to
support
it
by
interrogating
the
defendant:
and,
the
object
of
the
action
being
to
subject
the
defendant
to
a
penalty
in
the
nature
of
a
criminal
penalty,
it
would
be
monstrous
that
the
plaintiff
should
be
allowed
to
bring
such
an
action
on
speculation,
and
then,
admitting
that
he
had
not
evidence
to
support
it,
to
ask
the
defendant
to
supply
such
evidence
out
of
his
own
mouth
and
so
to
criminate
himself.
.
.
.
And
Mr.
Justice
Lopes,
at
page
514:
.
.
.
I
believe
the
true
principle
is
that,
when
an
action
is
brought
the
sole
object
of
which
is
to
enforce
penalties,
interrogatories
cannot
be
administered,
because
the
action
is
in
the
nature
of
a
criminal
proceeding,
.
.
.
Cross
at
page
276
of
his
text
on
evidence
(5th
ed.,
1979)
ascribes
the
origin
of
the
discovery
rule
respecting
penalties
to
the
doctrine
that
equity
would
not
assist
a
common
informer.
He
ascribes
the
rule
respecting
forfeitures
to
the
doctrine
that
equity
would
not
grant
discovery
or
order
interrogatories
in
aid
of
a
forfeiture
of
property.
The
Law
Reform
Committee
Report
to
which
Lord
Denning
referred
in
the
Rio
Tinto
case,
supra,
page
14,
is
no
more
illuminating
with
respect
to
the
origin
of
the
rules.
It
does
indicate
(paragraph
13)
that
the
rule
respecting
penalties
is
of
little
practical
importance
at
the
present
time
and
that
(paragraph
14)
the
rule
respecting
forfeitures
is
an
historical
survival
reflecting
the
reluctance
of
equity
to
aid
a
forfeiture
of
property.
It
was
recommended
that
this
last
be
abolished
(which
it
was)
because
the
courts
now
possess
and
exercise
full
power
to
grant
relief
against
forfeiture
in
most
cases.
There
is
also
some
indication
that
these
rules
originally
developed
from
the
principle
that
the
Court
of
Chancery
would
only
issue
a
bill
of
discovery
to
aid
proceedings
in
the
common
law
courts
with
respect
to
suits
relating
to
civil
rights,
not
those
relating
to
the
prosecution
of
an
indictment
or
information:
Wigram,
Law
of
Discovery
(1940)
at
pages
5,
79
-
85;
Wigmore,
Evidence
in
Trials
at
Common
Law,
(1961)
vol.
8,
pages
334-36.
Meagher,
Gummow
and
Lehane,
Eq-
uity
Doctrine
and
Remedies
(2nd
ed.,
1984)
at
pages
418
and
following
also
contains
an
exposition
of
these
rules
of
equity.
I
do
not
think
that
these
“curious
rules",
as
they
have
been
described*,
respecting
discovery
should
be
considered
as
having
any
independent
existence
or
survival
outside
the
scope
of
the
principles
respecting
selfincrimination
otherwise
recognized
in
Canadian
law
(federal
or
provincial
as
the
case
may
be).
This
is
so
not
only
because
the
legislation
respecting
the
rules
of
evidence
differs
in
the
two
jurisdictions
but
also
because
the
rules
of
court
respecting
discovery
will
differ.
I
note,
for
example,
that
order
24,
rule
2(3)
of
the
rules
of
the
Supreme
Court
of
Judicature,
prior
to
the
Civil
Evidence
Act,
1968
amendment
expressly
provided
that
discovery
of
documents
in
that
court
would
not
be
given
to
require:
a
defendant
to
an
action
for
the
recovery
of
any
penalty
recoverable
by
virtue
of
any
enactment
to
make
discovery
of
any
documents
or
as
requiring
a
defendant
to
an
action
to
enforce
a
forfeiture
to
make
discovery
of
any
documents
relating
to
the
issue
of
forfeiture.
In
any
event,
if
a
rule
respecting
a
privilege
against
self-incrimination,
or
other
privilege,
exists
for
the
purposes
of
a
trial
the
rules
on
discovery
should
conform
thereto.
But
in
the
absence
of
any
rule
applicable
at
the
trial
stage
limiting
the
compelling
of
evidence
I
cannot
see
why
a
discovery
rule
should
operate
independently
to
provide
a
broader
protection
or
privilege
unless
some
express
statutory
provision
or
rule
of
court
so
provides.
There
is
no
such
express
statutory
provision
embodying
the
common
law
rules
respecting
penalties
and
forfeitures
which
the
defendants
claim
apply.
On
the
contrary,
our
rules
expressly
provide
for
a
wide
right
of
discovery.
In
my
view,
it
is
those
express
provisions
which
govern.
In
addition,
the
effect
of
section
5
of
the
Evidence
Act,
R.S.C.
1970,
c.
E-10
on
its
own
terms,
expressly
abrogates
the
common
law
rules
contended
for
here.
That
Act
applies
“to
all
criminal
proceedings
and
to
all
civil
proceedings
and
other
matters
whatever
over
which
the
Parliament
of
Canada
has
jurisdiction"
(section
2).
Discovery
proceedings
pursuant
to
the
Federal
Court
Rules
with
respect
to
a
customs
action
brought
in
the
Federal
Court
clearly
fall
within
that
definition.
As
noted
above,
section
5
abrogates
the
common
law
privilege
to
refuse
to
answer
questions
on
the
ground
of
a
tendency
to
incriminate
the
person
or
establish
liability
with
respect
to
civil
proceedings
(ie:
penalties
and
forfeitures).
In
my
view,
whether
the
discovery
rules
are
seen
as
founded
on
the
privilege
of
a
witness
to
refuse
to
answer
questions
which
incriminate
or
on
the
basis
of
some
independent
source
in
equity!
they
have
been
expressly
abolished
by
section
5
and
section
2.
This
was
the
view
of
the
majority
of
the
Ontario
Court
of
Appeal
in
Regina
v.
Fox
(1899),
18
P.R.
343J
and
I
find
that
view
persuasive.
A
different
view
was
taken
in
Grevas
v.
R.
(1956),
18
W.W.R.
412
(B.C.C.A.).
Although
the
British
Columbia
Court
of
Appeal
found
that
the
discovery
rules
existed
they
were
held
not
to
be
applicable
to
the
fact
situation
of
that
case.
Some
uncertainty
as
to
the
scope
of
section
5
of
the
Evidence
Act
as
it
relates
to
the
common
law
rules
respecting
discovery
in
actions
involving
forfeiture
exists
because
section
5
of
the
Evidence
Act
applies
to
"witnesses”.
There
has
been
a
view
expressed
that
parties
being
examined
are
not
"witnesses”:
see
the
dissenting
judgment
of
Mr.
Justice
Rose
in
Regina
v.
Fox
(1899),
18
P.R.
343
at
357.
At
the
same
time,
where
the
applicable
rules
of
court
provide
that
a
person
being
examined
on
discovery
must
testify
"in
the
same
manner,
upon
the
same
terms
and
subject
to
the
same
rules
of
examination
as
a
witness”
the
issue
seems
to
have
been
clearly
resolved.
In
that
case
section
5
of
the
Evidence
Act
applies
and
there
is
no
privilege
to
refuse
to
answer
questions
on
the
basis
that
the
answers
would
be
incriminating
(or
render
one
liable
to
civil
liability):
Chambers
v.
Jaff
ray
et
al.
(1906),
12
O.L.R.
377
(Div.
C.)
especially
at
page
380
per
Mulock,
C.J.
and
at
pages
381-2
per
Meredith,
C.J.
(C.A.).
The
reasoning
in
Chambers
v.
Jaff
ray
was
approved
by
the
Supreme
Court
in
Klein
et
al.
v.
Bell
et
al.,
[1955]
S.C.R.
309
at
313
and
317.
There
is
no
provision
in
the
Federal
Court
rules
comparable
to
the
Ontario
rule
which
states
that
a
person
being
examined
for
discovery
must
testify
in
the
same
manner
as
a
witness.
Nevertheless,
I
think
such
a
person
is
a
“witness”
for
the
purposes
of
section
5
of
the
Evidence
Act.
Rule
494(9)
of
the
Federal
Court
Rules
provides
for
the
use
in
evidence,
at
trial,
of
the
examination
for
discovery;
at
that
stage
the
evidence
of
the
person
being
examined
becomes
evidence
as
if
adduced
from
a
witness
viva
voce.
The
examination
for
discovery
takes
place
before
a
prothonotary,
a
person
agreed
by
the
parties,
or
a
judge
(rule
465(6)).
Attendance
of
the
person
to
be
examined
may
be
enforced
by
subpoena
(rule
465(9))
“in
the
same
manner
as
the
attendance
of
a
witness
at
trial”.
Unless
otherwise
agreed
the
examination
takes
place
under
oath
(rule
465(11)).
Thus,
in
my
view
a
person
being
examined
for
discovery
is
in
substance
a
witness
and
section
5
applies
to
him.
One
last
point
to
note,
even
if
the
defendants
are
right
and
the
old
discovery
rules
re
forfeitures
and
penalties
are
extant
and
applicable
to
the
instant
case,
this
would
only
excuse
the
defendants
from
discovery
in
so
far
as
the
deemed
forfeitures
are
concerned.
They
would
not
be
excused
from
discovery
with
respect
to
the
duties
and
taxes
owing.
It
is
clear
that
in
“mixed”
cases
the
court
will
order
a
limited
discovery
covering
issues
other
than
those
of
penalty
and
forfeiture:
Mexborough
v.
Whitwood
Urban
District
Council,
[1897]
2
Q.B.
111
(C.A.)
at
117.
Compellability
The
principle
of
protection
against
self-incrimination
has
two
aspects:
(1)
the
privilege
to
refuse
to
answer
questions,
which
in
Canada
has
been
abrogated,
with
a
subsequent
use
immunity
being
adopted
instead;
(2)
the
right
not
to
be
compelled
to
be
a
witness*.
These
two
branches
have
different
and
independent
historical
roots,
see:
Cross
on
Evidence
(5th
ed.,
1979)
at
pages
163-66,
170-72
and
275-78.
The
first
branch
(that
of
privilege)
has
been
considered
above.
The
second
will
be
discussed
vis-à-vis
the
instant
case
first
with
regard
to
its
scope,
as
it
existed
in
pre-Charter
days
and
then
in
the
light
of
paragraph
11(c).
It
seems
impossible
in
this
area
of
the
law
to
understand
the
present
rules
without
delving
into
the
mists
of
history.
Thus,
I
find
it
essential
to
start
with
the
United
Kingdom
Evidence
Act
of
1851
(Stats.
U.K.
1851,
c.
99).
That
statute
altered
the
then
existing
common
law
position
that
parties
were
neither
competent
nor
compellable:
s.
2
On
the
trial
of
any
issue
.
.
.
the
parties
thereto
.
.
.
shall
.
.
.
be
competent
and
compellable
to
give
evidence
..
.
s.
3
But
nothing
herein
contained
shall
render
any
person
who
in
any
criminal
proceeding
is
charged
with
the
commission
of
any
indictable
offence,
or
any
offence
punishable
on
summary
conviction,
competent
or
compellable
to
give
evidence
for
or
against
himself
or
herself,
.
.
.
[Emphasis
added.]
[Emphasis
added.]
Then
in
1898
persons
charged
with
offences
were
made
competent
but
not
compellable,
the
Criminal
Evidence
Act,
1898
(U.K.)
Stats.
U.K.
1898,
c.
36:
1.
Every
person
charged
with
an
offence,
.
.
.
shall
be
a
competent
witness
for
the
defence
at
every
stage
of
the
proceedings;
.
.
.
(a)
A
person
so
charged
shall
not
be
called
as
a
witness
in
pursuance
of
this
Act
except
upon
his
own
application:
(b)
The
failure
of
any
person
charged
with
an
offence
..
.
to
give
evidence
shall
not
be
made
the
subject
of
any
comment
by
the
prosecution:
(e)
A
person
charged
and
being
a
witness
in
pursuance
of
this
Act
may
be
asked
any
question
in
cross-examination
notwithstanding
that
it
would
tend
to
criminate
him
as
to
the
offence
charged:
Shortly
after
the
passage
of
the
1851
Act,
but
before
that
of
1898
the
question
arose
as
to
whether
a
defendant
in
a
customs
forfeiture
claim,
for
treble
value
of
the
goods,
was
a
person
charged
“in
any
criminal
proceeding”.
The
Court
held
that
he
was:
Attorney
General
v.
Radloff
(1854),
10
Ex.
R.
84;
156
E.R.
366.
The
Customs
Act
was
thereafter
amended,
to
make
it
clear
that
a
defendant
in
a
prosecution
or
suit
for
“the
Recovery
of
any
Penalties
or
Forfeitures,
under
any
Law
.
.
.
relating
to
the
Customs
or
Inland
Revenue”
was
not
covered
as
being
either
competent
or
compellable*:
An
Act
for
the
further
Alteration
and
Amendment
of
the
Laws
and
Duties
of
Customs,
Stats.
U.K.
1854,
c.
122,
s.
15;
The
Supplemental
Customs
Consolidation
Act,
1855,
Stats.
U.K.
1855,
c.
96;
s.
36;
The
Customs
Amendment
Act,
1857,
Stats.
U.K.
1857,
c.
62,
s.
14.
This
last
provided:
The
several
Acts
which
declare
and
make
competent
and
compellable
a
Defendant
to
give
Evidence
in
any
Suit
or
Proceeding
to
which
he
may
be
a
Party
shall
not
be
deemed
to
extend
or
apply
to
Defendants
in
any
Suit
or
Proceeding
instituted
under
any
Act
relating
to
the
Customs.
Section
15
of
that
Act
provided:
Whereas
Doubts
have
arisen
whether
the
several
Sections
of
“The
Customs
Consolidation
Act,
1853,
.
..
as
also
“The
Supplemental
Customs
Consolidation
Act,
1855”,
are
applicable
to
the
British
“Possessions
abroad”:
Be
it
enacted,
That
the
said
recited
Acts
and
the
several
Clauses
therein
and
in
this
Act
contained
shall
and
the
same
are
hereby
declared
to
extend
to
and
be
of
full
Force
and
Effect
in
the
several
British
Possessions
abroad,
except
where
otherwise
expressly
provided
for
by
the
said
Acts
.
..
and
except
also
as
to
any
such
Possession
as
shall
by
Local
Act
or
Ordinance
have
provided,
or
may
hereafter,
with
the
Sanction
and
Approbation
of
Her
Majesty
and
Her
Successors,
make
entire
Provision
for
the
Management
and
regulation
of
the
Customs
Trade
and
Navigation
of
any
such
Possession,
or
make
in
like
Manner
express
provisions
in
lieu
or
variation
of
any
of
the
Clauses
of
the
said
Act
for
the
Purposes
of
such
Possession.
In
1865
The
Crown
Suits,
&
c.
Act,
1865
was
passed
(Stats.
U.K.
1865,
c.
154).
It
stated
(section
34)
that
sections
2
and
3
of
the
1851
Evidence
Act:
shall
extend
and
apply
to
Proceedings
at
Law
on
the
Revenue
Side
of
the
Court;
and
any
Proceeding
at
Law
on
the
Revenue
Side
of
the
Court
shall
not,
for
the
Purposes
of
this
Act,
be
deemed
a
Criminal
Proceeding
within
the
Meaning
of
the
said
Sections
and
Act
as
extended
and
applied
by
the
present
Section.
This
was
reflected
in
The
Customs
Consolidation
Act,
1876,
Stats.
U.K.
1876,
c.
36,
s.
259:
If
in
any
prosecution
in
respect
of
any
goods
seized
for
nonpayment
of
duties,
or
any
other
cause
of
forfeiture,
or
for
the
recovering
of
any
penalty
or
penalties
under
the
Customs
Acts,
any
dispute
shall
arise
whether
the
duties
of
Customs
have
been
paid
in
respect
of
such
goods,
or
whether
the
same
have
been
lawfully
imported
or
lawfully
unshipped,
or
concerning
the
place
from
whence
such
goods
were
brought,
then
and
in
every
such
case
the
proof
thereof
shall
be
on
the
defendant
in
such
prosecution,
and
where
any
such
proceedings
are
had
in
the
Exchequer
Division
of
the
High
Court
of
Justice
on
the
Revenue
side,
the
defendant
shall
be
competent
and
compellable
to
give
evidence.
Thus
as
far
as
the
United
Kingdom
is
concerned
defendants
in
forfeiture
claims
under
the
Customs
Act
were
by
statute
rendered
both
competent
and
compellablet.
On
this
side
of
the
Atlantic,
the
first
Customs
Act
enacted
after
Confederation:
Stats.
Can.
1867,
c.
6
provided
in
section
102:
If
the
prosecution
to
recover
any
penalty
or
forfeiture
imposed
by
this
Act,
or
by
any
other
law
relating
to
the
Customs
or
to
Trade
or
Navigation,
is
brought
in
any
Superior
Court
of
Law
in
either
of
the
Provinces
of
Ontario,
Nova
Scotia
or
New
Brunswick,
it
shall
be
heard
and
determined
as
prosecutions
for
penalties
and
forfeitures
are
heard
and
determined
in
Her
Majesty's
Court
of
Exchequer
in
England,
in
so
far
as
may
be
consistent
with
the
established
course
and
practice
of
the
Court
in
which
the
proceeding
is
instituted,
and
with
any
law
relating
to
the
procedure
in
such
Province,
in
suits
instituted
on
behalf
of
the
Crown
in
matters
relating
to
the
Revenue;
and
any
such
practice
and
law
shall
apply
to
prosecutions
for
the
recovery
of
forfeitures
and
penalties
under
this
Act,
in
whatever
Court
they
are
instituted,
so
far
as
they
can
be
applied
thereto
consistently
with
this
Act,
and
the
venue
in
any
such
case
may
be
laid
in
any
County
in
the
Province
in
which
the
proceeding
is
had,
without
alleging
that
the
offence
was
there
committed.
[Emphasis
added.]
This
was
carried
forward
in
essentially
the
same
form
in
the
1877
Act
(Stats.
Can.
1877,
c.
10,
s.
103).
In
1875
the
Exchequer
Court
of
Canada
was
created
and
in
1883
the
above
noted
sections
of
the
Customs
Act
were
amended
(see
sections
188,
190
and
191
of
that
Act)
to
become
what
are
now
sections
249,
251
and
252
in
the
present
Act
(sections
249
and
252
are
set
out
above).
Section
252
expressly
provides
that
for
forfeiture
claims
“the
usual
practice
and
procedure
of
the
court
in
civil
cases,
in
so
far
as
such
practice
and
procedure
are
applicable
shall
apply”.
In
the
light
of
this
legislative
history,
it
is
my
view
that,
in
the
absence
of
any
overriding
Charter
provision,
a
defendant
in
a
forfeiture
claim
under
the
Customs
Act
would
be
compellable.
This
being
so
there
could
be
no
underpinning
on
the
basis
of
non-compellability
to
ground
an
immunity
from
discovery,
at
common
law,
as
claimed
by
the
defendants.
Subsection
11(c)
of
the
Canadian
Charter
of
Rights
and
Freedoms
It
is
necessary,
then
to
consider
subsection
11(c)
of
the
Charter.
I
set
it
out
again,
for
convenience:
Any
person
charged
with
an
offence
has
the
right
.
.
.
(c)
not
to
be
compelled
to
be
a
witness
in
proceedings
against
that
person
in
respect
of
the
offence.
Counsel
for
the
plaintiff
argues
that
the
section
is
intended
to
apply
only
to
suits
brought
in
the
ordinary
criminal
courts
by
way
of
summary
conviction
or
indictable
offence.
It
is
argued
that
this
is
clear
from
the
use
of
the
words
“charged
with
an
offence”
and
by
the
other
provisions
of
section
11*;
that
the
defendants
simply
have
not
been
charged
with
an
offence;
they
have
been
sued
by
statement
of
claim
for
a
debt
owing;
that
the
burden
of
proof
applicable
is
not
that
applicable
in
criminal
cases
—
the
burden
of
proof
is
on
the
defendants;
that
the
other
trappings
of
a
criminal
proceeding
are
not
in
existence
here;
that
revenue
laws
are
a
category
apart;
they
are
enforced
by
civil
proceedings
and
paragraph
11(c)
of
the
Charter
was
simply
not
meant
to
apply
to
them.
Counsel
for
the
defendants,
on
the
other
hand
argues
that
the
substance
of
a
deemed
forfeiture
action
is
the
imposition
of
punishment
for
an
offence;
that
the
Charter
provisions
must
be
interpreted
with
reference
to
the
purpose
they
were
intended
to
serve;
that
to
use
the
procedure
employed
as
a
criterion
for
determining
the
applicability
of
Charter
rights
is
both
inappropriate
and
creates
a
potential
for
abuse
in
allowing
indirect
denial
of
constitutionally
protected
rights.
The
decision
of
the
Supreme
Court
in
R.
v.
Big
M
Drug
Mart
Ltd.
et
al.,
[1985]
1
S.C.R.
295
at
344;
18
D.L.R.
(4th)
321
at
359
is
cited:
In
Hunter
v.
Southam
Inc.,
[1984]
2
S.C.R.
145,
this
Court
expressed
the
view
that
the
proper
approach
to
the
definition
of
the
rights
and
freedoms
guaranteed
by
the
Charter
was
a
purposive
one.
The
meaning
of
a
right
or
freedom
guaranteed
by
the
Charter
was
to
be
ascertained
by
an
analysis
of
the
Purpose
of
such
a
guarantee;
it
was
to
be
understood,
in
other
words,
in
the
light
of
the
interests
it
was
meant
to
protect.
In
my
view
this
analysis
is
to
be
undertaken,
and
the
purpose
of
the
right
or
freedom
in
question
is
to
be
sought
by
reference
to
the
character
and
the
larger
objects
of
the
Charter
itself,
to
the
language
chosen
to
articulate
the
specific
right
or
freedom,
to
the
historical
origins
of
the
concepts
enshrined,
and
where
applicable,
to
the
meaning
and
purpose
of
the
other
specific
rights
and
freedoms
with
which
it
is
associated
within
the
text
of
the
Charter.
The
interpretation
should
be,
as
the
judgment
in
Southam
emphasizes,
a
generous
rather
than
a
legalistic
one,
aimed
at
fulfilling
the
purpose
of
the
guarantee
and
securing
for
individuals
the
full
benefit
of
the
Charter’s
protection.
At
the
same
time
it
is
important
not
to
overshoot
the
actual
purpose
of
the
right
or
freedom
in
question,
but
to
recall
that
the
Charter
was
not
enacted
in
a
vacuum,
and
must
therefore,
as
this
Court’s
decision
in
Law
Society
of
Upper
Canada
v.
Skapinker,
[1984]
1
S.C.R.
357,
illustrates,
be
placed
in
its
proper
linguistic,
philosophic
and
historical
contexts.
With
respect
to
the
argument
that
section
11
contemplates
only
criminal
proceedings
in
the
strict
sense
of
that
term
the
following
are
cited:
Regina
v.
Belcourt
(1982),
69
C.C.C.
(2d)
286
(B.C.S.C.)
at
287;
Regina
v.
Mingo,
et
al.
(1983),
2
C.C.C.
(3d)
23
(B.C.S.C.)
at
36;
Re
James,
[1983]
2
W.W.R.
316
(B.C.S.C.)
at
319;
Belhumeur
v.
Discipline
Committee
of
Quebec
Bar
Associ-
ation
and
Quebec
Bar
Association
(1983),
34
C.R.
(3d)
279
(Que.
S.C.);
Caisse
Populaire
Laurier
d'Ottawa
Ltée.
v.
Guertin,
et
al.
(No.
2)
(1983),
150
D.L.R.
(3d)
541
at
546;
43
O.R.
(2d)
91
(Ont.
H.C.);
Regina
v.
Boron
(1983),
3
D.L.R.
(4th)
238
at
242-43
O.R.;
43
O.R.
(2d)
623
at
626-28;
R.
v.
Wooten
(1983),
9
C.C.C.
(3d)
513
(B.C.S.C.)
at
516
and
Bowen
v.
Minister
of
Employment
and
Immigration,
[1984]
2
F.C.
507
(C.A.)
at
509.
Some
of
these
(the
James
and
Belhumeur
cases)
have
already
been
commented
upon,
supra.
They
are
not
really
relevant
to
the
fact
situation
in
issue
here.
They
pertained
to
situations
where
there
were
two
(or
more)
separate
legal
consequences
to
two
or
more
persons
or
groups
of
persons,
arising
out
of
one
act.
The
Mingo
case,
since
it
deals
with
penitentiary
disciplinary
offences,
also
falls,
in
so
far
as
its
facts
are
concerned,
into
this
category.
However,
the
legal
issue
being
debated
was
whether
there
was
an
abuse
of
process
because
the
defendant
had
been
prosecuted
both
for
Criminal
Code
offences
and
for
penitentiary
disciplinary
offences.
In
coming
to
the
decision
that
there
was
no
abusive
process
since
the
two
actions
were
separate
types
of
proceeding,
i.e.
there
was
no
double
jeopardy,
the
following
comment
was
made,
at
36:
.
.
.
The
test
of
what
constitutes
an
offence
falls
to
be
determined
by
examining
the
enactment
and
determining,
in
so
far
as
federal
legislation
is
concerned,
if
the
allegation
is
dealt
with
by
a
court
with
jurisdiction
to
hear
an
indictable
or
summary
conviction
offence.
In
the
case
of
provincial
legislation,
if
the
allegation
is
dealt
with
by
a
court
with
jurisdiction
to
hear
an
offence
triable
under
the
provisions
of
the
Offence
Act,
R.S.B.C.
1979,
c.
305.
.
.
.
[Emphasis
added.]
With
respect,
I
do
not
think
the
test
can
be
the
jurisdiction
of
the
court.
It
must
be
more
closely
linked
to
the
nature
or
substance
of
the
claim
in
issue.
In
any
event,
such
test
as
applied
to
a
customs
forfeiture
claim
in
the
Federal
Court
would
be
inconclusive
since
section
3
of
the
Federal
Court
Act,
Stats.
Can.
1970,
(2nd
Supp.)
c.
10
provides
that:
The
court
of
law,
equity
and
admiralty
in
and
for
Canada
now
existing
under
the
name
of
the
Exchequer
Court
of
Canada
is
hereby
continued
under
the
name
of
the
Federal
Court
of
Canada
as
an
additional
court
for
the
better
administration
of
the
laws
of
Canada
and
shall
continue
to
be
a
superior
court
of
record
having
civil
and
criminal
jurisdiction.
[Emphasis
added.]
The
Belcourt,
Boron
and
Caisse
Populaire
Laurier
cases
all
deal
with
situations
in
which
a
criminal
proceeding
(without
question)
existed.
The
Belcourt
case
and
Boron
cases
dealt
with
the
question
of
when
a
charge
might
be
said
to
have
been
laid
(laying
of
the
information,
arraignment
or
at
an
earlier
time
than
both).
The
issue
in
those
cases
was
whether
or
not
the
accused
had
been
tried
within
a
reasonable
time
after
the
charge
had
been
laid.
The
Caisse
Populaire
Laurier
case
dealt
with
whether
a
civil
claim
by
the
Caisse
against
the
defendant
should
be
stayed
pending
the
outcome
of
a
criminal
charge
against
the
defendant
arising
out
of
the
same
fact
situation.
The
case
was
concerned
with
the
rules
applicable
after
a
charge
had
been
laid
and
the
effect,
if
any,
that
it
should
have
on
the
conduct
of
a
parallel
civil
claim
between
private
parties.
In
all
three
of
these
cases
a
criminal
prosecution
was
in
existence.
There
was
no
question
arising
as
to
the
scope
of
the
words
“charged
with
an
offence”
as
is
in
issue
here.
Thus,
whatever
may
be
said
in
those
cases
to
the
effect
that
section
11
covers
criminal
proceedings
only
must
be
considered
as
dicta.
The
Wooten
and
Bowen
decisions
I
find
more
helpful.
They
both
deal
with
proceedings
under
the
Immigration
Act
and
consider
whether
a
person
who
is
compelled
to
attend
and
testify
with
respect
thereto
is
being
compelled
in
contravention
of
paragraph
11(c)
of
the
Charter.
In
both
decisions
it
was
held
that
there
was
no
abrogation
of
paragraph
11(c).
In
coming
to
those
decisions
the
courts
focussed
on
the
nature
of
the
inquiry,
not
on
the
jurisdiction
of
the
court,
not
solely
on
the
type
of
proceeding
being
used
to
determine
the
issue
in
question.*
It
was
held
that
the
purpose
of
the
immigration
enquiry
was
to
determine
a
person's
status
under
the
Immigration
Act,
it
was
not
to
accuse
him
or
her
of
an
offence
and
mete
out
punishment
therefor.
Mr.
Justice
MacDonald
in
the
Wooten
case
did
rely,
as
well,
on
the
fact
that
the
immigration
proceedings
were
civil
in
nature.
He
commented
that
subsection
"11(c)
recognizes
and
affirms
the
historical
distinction
between
civil
and
criminal
proceedings
with
respect
to
compellability"
(at
page
516).
He
expressed
the
view
that
"section
11
is
not
intended
to
apply
to
civil
proceedings.”
With
respect
I
do
not
share
the
view
that
the
nature
of
the
proceeding
chosen
can
in
all
cases
be
determinative.
I
accept
that
the
main
thrust
of
section
11
was
clearly
intended
to
be
that
it
apply
to
proceedings
in,
what
counsel
described
as,
the
ordinary
criminal
courts.
At
the
same
time,
however,
section
11
is
not
expressly
limited
to
criminal
proceedings.
The
marginal
note
to
section
11
of
the
Charter
refers
to
"proceedings
in
criminal
and
penal
matters".
The
claim
in
issue
here,
though
clothed
in
civil
proceedings,
is
clearly
penal.
It
is
not
similar
to
the
enquiries
under
the
Immigration
Act
dealt
with
in
Wooten
and
Bowen.
But
most
significant
in
my
view,
indeed
the
crucial
aspect
of
this
case,
is
the
fact
that
sections
180
and
192
of
the
Customs
Act
provide
for
parallel
methods
of
enforcement
of
the
penalties
sought
to
be
imposed:
one
through
indictment
or
summary
conviction
in
the
ordinary
criminal
courts
(to
which
forfeiture
might
be
an
adjunct),
the
other
through
"deemed
forfeiture"
by
way
of
a
debt
proceeding
in
the
Federal
Court
(coupled,
in
this
case,
with
a
claim
for
duties
and
taxes
outstanding).
I
cannot
accept
that
the
Crown's
right
to
elect
which
procedure
it
will
follow
should
determine
the
defendants'
constitutional
rights.
I
would
indicate
that
I
do
not
find
the
plaintiff’s
argument
that
because
the
burden
of
proof
is
on
the
defendants,
by
virtue
of
section
248
of
the
Customs
Act,
the
proceeding
is
one
outside
the
scope
of
section
11.
This
to
me
is
a
"bootstraps
argument”.
If
the
"deemed
forfeiture"
proceeding
is
governed
by
paragraph
11(c),
then
paragraph
11(d)
might
also
apply.
It
is
not
a
compelling
argument
to
say
that
because
Parliament
has
imposed
a
reverse
onus
provision
on
the
defendants,
and
therefore
by
statute
dictated
(or
tried
to
dictate)
that
paragraph
11(d)
does
not
apply,
the
action
should
not
be
considered
to
come
within
paragraph
11(c).
I
was
referred
to
Mr.
Justice
Rouleau’s
decision
in
The
Queen
v.
Taylor,
[1985]
1
F.C.
331
at
339-40;
[1984]
C.T.C.
436
at
441
where
he
characterized
penalty
sections
under
the
Income
Tax
Act
as
civil
proceedings,
not
quasicriminal.
The
decision
did
not
deal
with
the
Charter;
it
was
concerned
with
the
statutory
interpretation
of
the
Income
Tax
Act
and
the
question
of
which
party,
the
plaintiff
or
the
defendant,
should
present
its
case
first.
I
am
asked
to
draw
the
inference
from
that
decision
that
section
11
of
the
Charter
only
applies
to
ordinary
criminal
proceedings.
I
do
not
do
so.
Also,
I
note
that
there
are
cases
of
this
Court
which
indicate
the
contrary:
Russell
v.
Radley,
[1984]
1
F.C.
54
(a
penitentiary
disciplinary
offence);
Cutter
(Canada)
Ltd.
v.
Baxter
Travenol
Laboratories
of
Canada
Ltd.
et
al.
(1984),
3
C.I.P.R.
143
(contempt
of
court
proceedings).
See
also:
Regina
v.
Cohn
(1984),
15
C.C.C.
(3d)
151
esp.
at
160-61;
13
D.L.R.
(4th)
680
esp.
at
689-91.
In
addition,
the
reasoning
of
Mr.
Justice
Sinclair
in
Re
Lazarenko
and
Law
Society
of
Alberta
(1983),
4
D.L.R.
(4th)
389;
29
A.L.R,
(2d)
28
(Alta.
Ct.
Q.B.)
is
instructive,
even
though
the
result
reached
in
that
case
may
be
against
the
developing
trend
as
exhibited
in
the
jurisprudence
generally
(supra).
Thus,
the
conclusion
I
have
come
to
is
that
in
the
present
circumstances,
paragraph
11(c)
applies
to
the
proceedings
in
the
Federal
Court,
at
least
in
so
far
as
the
"deemed
forfeiture”
is
concerned.
Reasonable
Limits
Prescribed
By
Law
The
plaintiff
argues
that
revenue
laws
are
a
category
apart
and
that
procedures
not
normally
sanctioned
are
both
required
and
appropriate
in
dealing
with
infractions
thereof.
This
argument
relates
to
section
one
of
the
Charter
which
provides
that
the
constitutional
guarantees
set
out
in
the
Charter
shall
be:
subject
only
to
such
reasonable
limits
prescribed
by
law
as
can
be
demonstrably
justified
in
a
free
and
democratic
society.
While
the
plaintiff’s
argument,
as
a
generality
(in
so
far
as
it
relates
to
all
aspects
of
all
revenue
laws),
may
be
too
broad,
I
think
it
is
well
founded
in
so
far
as
it
relates
to
discovery
being
sought
from
the
officers
of
the
two
corporate
defendants
in
this
case.
Counsel
for
the
defendants
cites
the
Supreme
Court
decision
in
Her
Majesty
the
Queen
v.
Oakes
(unreported
decision
of
February
28,
1986)
as
setting
forth
the
criteria
applicable.
Chief
Justice
Dickson
at
page
40
and
following
states:
First,
the
objective,
which
the
measures
responsible
for
a
limit
on
a
Charter
right
or
freedom
are
designed
to
serve,
must
be
“of
sufficient
importance
to
warrant
overriding
a
constitutionally
protected
right
or
freedom”
.
.
.
It
is
necessary,
at
a
minimum,
that
an
objective
relate
to
concerns
which
are
pressing
and
substantial
in
a
free
and
democratic
society
before
it
can
be
characterized
as
sufficiently
important.
Second,
once
a
sufficiently
significant
objective
is
recognized,
then
the
party
invoking
s.
1
must
show
that
the
means
chosen
are
reasonable
and
demonstrably
justified.
this
involves
‘‘a
form
of
proportionality
test”:
R.
v.
Big
M
Drug
Mart
Ltd.,
supra,
at
p.
352.
Although
the
nature
of
the
proportionality
test
will
vary
depending
on
the
circumstances,
in
each
case
courts
will
be
required
to
balance
the
intersts
of
society
with
those
of
individuals
and
groups.
There
are,
in
my
view,
three
important
components
of
a
proportionality
test.
First,
the
measures
adopted
must
be
carefully
designed
to
achieve
the
objective
in
question.
They
must
not
be
arbitrary,
unfair
or
based
on
irrational
considerations.
In
short,
they
must
be
rationally
connected
to
the
objective.
Second,
the
means,
even
if
rationally
connected
to
the
objective
in
this
first
sense,
should
impair
“as
little
as
possible”
the
right
or
freedom
in
question:
R.
v.
Big
M
Drug
Mart
Ltd.,
supra,
at
p.
352.
Third,
there
must
be
a
proportionality
between
the
effects
of
the
measures
which
are
responsible
for
limiting
the
Charter
right
or
freedom,
and
the
objective
which
has
been
identified
as
of
“‘sufficient
importance”.
In
the
first
place
the
limit
on
the
right
not
to
be
compelled
to
be
a
witness
is
clearly
“prescribed
by
law”:
section
252
of
the
Customs
Act
read
together
with
the
Federal
Court
Act
and
Rules,
particularly
rule
465.
Sec-
ondly,
the
objectives
which
the
statutory
measures
as
a
whole
are
designed
to
serve
are
important
to
the
body
politic
as
a
whole.
They
are
at
least
two
in
number:
the
collection
of
revenue
and
the
controlling
of
the
movement
of
goods
across
borders,
for
various
protective
reasons
such
as
economic
protection
to
local
industries.
Mr.
Justice
Dubé
in
Allardice
v.
R.,
[1979]
1
F.C.
13
(T.D.),
at
page
22,
wrote:
The
purpose
of
the
Act,
obviously,
is
not
to
facilitate
the
entry
of
foreign
goods
into
Canada.
Its
true
intent
is
twofold:
to
protect
the
Canadian
industry
and
to
raise
revenue.
Subsection
2(3)
prescribes
a
liberal
construction
for
the
protection
of
revenue.
It
reads:
2.
...
(3)
All
the
expressions
and
provisions
of
this
Act,
or
of
any
law
relating
to
the
customs,
shall
receive
such
fair
and
liberal
construction
and
interpretation
as
will
best
ensure
the
protection
of
the
revenue
and
the
attainment
of
the
purpose
for
which
this
Act
or
such
law
was
made,
according
to
its
true
intent,
meaning
and
Spirit.
The
objectives
of
the
more
specific
provision
in
issue,
i.e.:
the
compelling
of
discovery,
have
to
be
considered
in
the
context
of
the
legislative
measure
in
which
they
are
found:
that
is
a
taxation
system
based
on
a
system
of
self-reporting
and
self-assessment.
In
that
regard
a
decision
of
the
United
States
Supreme
Court
was
cited
to
me:
United
States
et
al.
v.
Bisceglia,
420
U.S.
141
(1974).
Quoting
from
pages
145-46:
.
.
.
our
tax
structure
is
based
on
a
system
of
self-reporting.
There
is
legal
compulsion,
to
be
sure,
but
basically
the
Government
depends
upon
the
good
faith
and
integrity
of
each
potential
taxpayer
to
disclose
honestly
all
information
relevant
to
tax
liability.
Nonetheless,
it
woud
be
naive
to
ignore
the
reality
that
some
persons
attempt
to
outwit
the
system,
and
tax
evaders
are
not
readily
identifiable.
thus,
s.
7601
gives
the
Internal
revenue
service
a
broad
mandate
to
investigate
and
audit
“persons
who
may
be
liable"
for
taxes
and
s.
7602
provides
the
power
to
“examine
any
books,
papers,
records,
or
other
data
which
may
be
relevant
.
.
.
[and
to
summon]
any
person
having
possession
...
of
books
of
account
..
.
relevant
or
material
to
such
inquiry.”
Of
necessity,
the
investigative
authority
so
provided
is
not
limited
to
situations
in
which
there
is
probable
cause,
in
the
traditional
sense,
to
believe
that
a
violation
of
the
tax
laws
exists.
United
States
v.
Powell,
379
U.S.
48
(1964).
The
purpose
of
the
statutes
is
not
to
accuse,
but
to
inquire.
Although
such
investigations
unquestionably
involve
some
invasion
of
privacy,
they
are
essential
to
our
self-reporting
system,
and
the
alternatives
could
well
involve
far
less
agreeable
invasions
of
house,
business,
and
records.
We
recognize
that
the
authority
vested
in
tax
collectors
may
be
abused,
as
all
power
is
subject
to
abuse.
However,
the
solution
is
not
to
restrict
that
authority
so
as
to
undermine
the
efficacy
of
the
federal
tax
system,
which
seeks
to
assure
that
taxpayers
pay
what
Congress
has
mandated
and
to
prevent
dishonest
persons
from
escaping
taxation
thus
shifting
heavier
burdens
to
honest
taxpayers.
Similarly,
in
the
United
Kingdom
extensive
discovery
in
revenue
matters
is
countenanced
despite
the
fact
that
such
could
be
said
to
be
selfincriminating.
In
Commissioners
of
Customs
and
Excise
v.
Ingram,
[1948]
1
All
E.R.
927
(C.A.)
at
929
Lord
Goddard,
C.J.
stated:
The
only
other
matter
which,
I
think,
I
need
deal
with
is
the
point
which
counsel
for
the
defendants
has
argued,
that
the
court
would
not
order
the
production
of
documents
which
may
incriminate
the
subject.
In
my
opinion,
one
cannot
make
any
such
limitation
here.
The
very
object
of
the
Finance
Act,
1946,
in
the
sections
which
relate
to
this
matter,
is
to
give
to
the
Crown
the
power
of
investigating
a
person’s
accounts
and
so
forth
to
see
whether
he
is
defrauding
the
Revenue
by
not
paying
that
which
he
ought
to
pay.
To
my
mind,
no
new
principle
here
is
introduced
into
the
law.
It
is
said
that
this
is
compelling
a
man
to
incriminate
himself
or
putting
an
onus
on
a
man
to
show
that
he
has
not
been
committing
an
offence,
but,
it
is
quite
a
commonplace
of
legislation
designed
to
protect
the
revenue
of
the
Crown,
as
it
is
realised
that
all
the
information
must
generally
be
within
the
knowledge
of
the
taxpayer
or
the
subject,
to
put
an
onus
on
him
or
to
oblige
him
to
do
certain
things
which
may
have
the
effect
of
incriminating
him.
Not
only
do
I
think
the
objective
of
compelling
discovery
in
this
case
is
sufficiently
important
to
meet
the
tests
set
out
by
the
Supreme
Court
in
the
Oakes
case,
I
think
the
means
are
reasonably
proportional
to
the
objectives
sought.
Chief
Justice
Dickson
in
the
Oakes
case,
supra,
indicated
that
“the
nature
of
the
proportionality
test
will
vary
depending
upon
the
circumstances”.
In
this
case
the
proceedings
are
civil;
there
is
no
liability
for
imprisonment,
although
the
monetary
penalties
are
high.
One
could
not
say
that
what
was
being
sought
was
“arbitrary
or
unfair”.
No
more
is
required
of
the
defendants,
than
would
be
required
of
a
person
in
ordinary
commercial
litigation
as
between
private
parties.
There
is
a
proportionality
and
rational
link
between
the
effects
and
objectives
of
the
measure.
Whatever
might
be
said
about
some
of
the
other
aspects
of
the
"deemed
forfeiture”
procedures
under
the
Customs
Act,
I
think
those
requiring
discovery
from
the
officers
of
the
defendant
corporations
are
“reasonable
limits”
on
the
right
of
non-compellability
set
out
in
paragraph
11(c),
which
are
“demonstrably
justified
in
a
free
and
democratic
society”.
Officers
of
a
Corporation
The
fundamental
distinction
on
which
counsel
for
the
defendants
bases
his
whole
argument
in
this
case
is
that
drawn
by
Mr.
Justice
Arnup
in
Regina
v.
Judge
of
the
General
Sessions
of
the
Peace
for
the
County
of
York,
Ex
parte
Corning
Glass
Works
of
Canada
Ltd.
(1970),
3
C.C.C.
(2d)
204;
16
D.L.R.
(3d)
609.
It
was
there
held
that
on
an
examination
for
discovery
an
officer
being
examined
speaks
"for”
the
company
(is
the
mouthpiece
of
the
company),
while
as
a
witness
at
trial
such
an
officer
does
not
speak
"for”
the
corporation*.
He
may
be
required
to
testify
but
in
that
capacity
he
does
so
as
any
other
witness
is
required
to
do.
It
is
only
on
the
basis
of
this
distinction
that
one
can
make
any
argument
that
discovery
of
the
officers
of
the
defendant
corporations
is
a
prima
facie
infringement
of
paragraph
11(c)
of
the
Charter.
An
application
for
leave
to
appeal
the
decision
in
the
Corning
Glass
case
to
the
Supreme
Court
was
dismissed
January
26,
1971.
There
is
some
indication
that
where
the
corporation
is
a
"one-man”
corporation
there
is
an
exception
to
the
rule
set
out
in
the
Corning
Glass
case:
R.
v.
N.M.
Paterson
and
Sons
Ltd.,
[1979]
1
W.W.R.
5;
117
D.L.R.
(3d)
517
(Man.
C.A.).
As
counsel
for
the
plaintiff
noted
on
the
initial
hearing
of
this
motion,
however,
from
the
material
filed,
it
is
clear
that
the
officers
in
question
in
this
case
do
not
fall
into
that
category.
Thus,
the
only
effect
of
refusing
to
order
the
officers
of
the
corporation
to
appear
for
discovery
in
the
present
case
would
be
to
postpone
the
obtaining
of
their
evidence
until
trial.
In
such
circumstances,
even
if
I
were
wrong
with
respect
to
the
appropriateness
of
ordering
discovery,
it
would
not
be
appropriate
to
refuse
discovery
outright.
It
would
be
appropriate
for
the
Court
to
use
the
authority
accorded
to
it
by
section
252
of
the
Customs
Act
and
adapt
the
applicable
rules
of
procedure.
At
the
most,
the
defendants
should
be
subject
to
an
order
requiring
them
to
produce
the
re-
quested
officer
for
discovery,
but
qualifying
the
weight
to
be
given
to
evidence
so
produced
as
not
“binding”
on
the
corporation.
the
answers
would
be
taken
as
having
the
same
weight
that
they
would
have
at
trial.
Determination
of
the
Issue
—
Premature?
One
last
argument
remains
to
be
considered.
Counsel
for
the
plaintiff
referred
me
to
the
Court
of
Appeal
decision
in
Cutter
(Can.)
Ltd.
v.
Baxter
Travenol
Laboratories
of
Can.
Ltd.
(1984),
3
C.I.P.R.
143.
That
case
dealt
with
an
attempt
to
invalidate
a
show
cause
order
which
issued
to
require
certain
defendants
to
demonstrate
why
they
were
not
in
contempt
of
a
court
order.
The
show
cause
order
was
challenged
on
the
ground
that
the
affidavit
evidence
in
support
of
the
application
for
the
order
had
contained
evidence
from
an
earlier
related
proceeding
and
therefore
was
in
contravention
of
section
13
of
the
Charter.
The
Court
of
Appeal
held
that
the
show
cause
order
was
comparable
to
a
“summons”
and
that
at
that
stage
of
the
proceedings
it
was
difficult
to
see
how
it
could
be
said
that
the
affidavit
material
was
being
used
“to
incriminate”
the
defendants.
Mr.
Justice
Urie,
speaking
for
the
Court,
expressed
the
view,
at
153:
On
the
return
of
that
order,
proof
must
be
made
to
support
the
allegations
of
contempt.
The
evidence
adduced,
or
attempted
to
be
adduced,
in
support
of
that
proof
may
be
challenged
as
violating
s.
13,
in
which
event
the
trial
Judge
will
be
required
to
make
a
ruling
thereon.
As
I
see
it,
there
cannot
be
incriminatory
evidence
until
the
trial.
To
give
the
word
“incriminate”
the
broad
meaning
which
would
be
required
if
the
affidavit
evidence
was
said
to
be
incriminating,
would
extend
its
meaning
beyond
that
which
it
bears.
[Emphasis
added.]
The
plaintiff
argues
that
similarly
in
this
case
there
can
be
no
incriminating
evidence
until
trial
and
that
to
make
a
decision
on
the
defendants'
argument
now
would
be
premature.
I
cannot
accept
that
contention.
I
do
not
think
the
Cutter
decision
applies
to
this
case.
I
do
not
think
it
applies
so
broadly
as
to
establish
a
rule
that
a
Charter
issue,
such
as
one
under
section
13
or
paragraph
11(c),
should
not
be
determined
at
the
examination
for
discovery
stage.
The
examination
for
discovery
stage
is
more
closely
linked
to
the
trial
process
than
is
the
summons
procedure
from
which
a
show
cause
order
issues.
Also,
an
extension
of
the
Cutter
decision,
as
contended
for
by
the
plaintiff
would
not
coincide
with
the
multitude
of
decisions
from
earlier
days*
which
have
dealt
with
questions
of
privilege,
forfeiture
and
penalty
at
the
discovery
stage.
Conclusion
Accordingly,
for
the
reasons
given
an
order
will
issue
requiring
the
defendants
to
produce
the
requested
officers
for
discovery.
Order
accordingly.
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