SCC (Supreme Court of Canada) Constitutional law — Charter of Rights — Fundamental justice – Self-incrimination — Right to remain silent – Derivative evidence — Combines investigation — Corporation suspected of predatory pricing – Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act — Failure to comply with a s. 17 order subject to legal consequences — Whether s. 7 of the Canadian Charter of Rights and Freedoms can be invoked — Whether s. 17 infringes s. 7 of the Charter — If so, whether s. 17 justifiable under s. 1 of the Charter – Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(c), 13.
Constitutional law — Charter of Rights — Unreasonable search and seizure — Combines investigation — Corporation suspected of predatory pricing — Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act — Whether s. 17 infringes s. 8 of the Canadian Charter of Rights and Freedoms — If so, whether s. 17 justifiable under s. 1 of the Charter.
Combines — Investigation — Corporation suspected of predatory pricing — Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act — Whether s. 17 infringes the guarantee to fundamental justice in s. 7 of the Canadian Charter of Rights and Freedoms or the guarantee against unreasonable search and seizure in s. 8 of the Charter.
Evidence — Self-incrimination — Derivative evidence — Documentary evidence — Real evidence — Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act — Whether complete immunity against the use of derivative evidence required by the principles of fundamental justice — Whether protection against self-incrimination under s. 7 of the Canadian Charter of Rights and Freedoms limited to ‘testimonial evidence’ — Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 17, 20(2) — Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5.
La Forest J held that there was no breach of the principles of fundamental justice because there are serious grounds on which objection can be raised to an absolute rule that testimonial immunity must always extend to evidence derived from compelled testimony: ‘While allowing the Crown to use such evidence in criminal proceedings may in a formal sense be equivalent to permitting direct reliance on the compelled testimony itself, there is an important difference between the type of prejudice that will be suffered in the two cases. It is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self-incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence that could have been obtained only from the accused.
By contrast, evidence derived from compelled testimony is, by definition, evidence that existed independently of the compelled testimony. This follows logically from the fact that it was evidence which was found, identified or understood as a result of the ‘clues’ provided by the compelled testimony. Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as non-existence. The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been.’
The fact that the derivative evidence exists independently of the compelled testimony also means that its quality as evidence and its relevance to the issues in the trial do not depend on its past connection with the compelled testimony.
Judges:
Lamer, Wilson, La Forest, L’Heureux-Dube and Sopinka JJ
Citations:
[1990] 1 SCR 425
Links:
Jurisdiction:
Canada
Cited by:
Cited – Her Majesty’s Advocate v P SC 6-Oct-2011
(Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution.
Held: The admission of the . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Criminal Practice
Updated: 04 May 2022; Ref: scu.445165