A-914-85
Amway of Canada Limited/Amway du Canada
Ltée (Appellant) (Defendant)
v.
The Queen (Respondent) (Plaintiff)
INDEXED AS: CANADA V. AMWAY OF CANADA LTD.
Court of Appeal, Heald, Mahoney and Stone
JJ.-Montréal, December 1, 2, 3, 4; Ottawa,
December 18, 1986.
Customs and excise - Customs Act - Defendant charged
with Customs Act offence may be required to produce docu
ments - Privilege against self-incrimination not extending to
production of documents - Right of non-production of docu
ments in penal actions abrogated by Act, s. 170 - Federal
Court Rules, C.R.C., c. 663, RR. 2(2), 448, 453, 455(2)
Customs Act, R.S.C. 1970, c. C-40, ss. 18, 170, 180,
192(1)(b),(c),(2) - Customs Amendment Act 1888, 51 Vict., c.
14 - Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 11(c) = Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), s. 52(1).
Practice - Discovery - Production of documents
Requirement that defendant charged under Customs Act pro
duce documents not infringing privilege against self-incrimi
nation - Federal Court Rules, C.R.C., c. 663, RR. 2(2), 448,
453, 455(2) - Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 52(b) - Customs Act, R.S.C. 1970, c. C-40, ss. 18, 170,
180, 192(1)(b),(c),(2) - Customs Act 1888, 51 Vict., c. 14.
The appellant is being sued under the Customs Act to
enforce a penalty for fraudulently attempting to avoid the
payment of duty on goods imported into Canada. This is an
appeal against an interlocutory order of the Trial Division
ordering the appellant to produce certain documents.
Held, the appeal should be dismissed as to the principal
issue.
Per Mahoney J.: The action is a penal action in which the
appellant is a person charged with an offence. Even though the
appellant cannot be compelled to testify, it can nevertheless be
compelled to produce documents. Production of documents
cannot be considered the same as testifying. The documents
speak for themselves. The principle against self-incrimination
does not extend to the production of documents and the Chart
er in no way alters this fact.
Per Stone J.: This is an action brought to enforce a penalty
for an offence. Normally, compelling the production of docu
ments is not available against the defendant in such cases.
However, section 170 of the Customs Act has overridden this
privilege. While the statute did not explicitly abolish the
common law right, the obligation to produce the material was
cast in broad language not subject to any qualification.
Paragraph 11(c) of the Charter has no application to the
production of documents. It is concerned with protecting a
person charged with an offence from being called against his
will "to be a witness" in proceedings against him in respect of
that offence.
CASES JUDICIALLY CONSIDERED
APPLIED:
Marcoux et al. v. The Queen, [1976] 1 S.C.R. 763;
Ziegler v. Hunter, [1984] 2 F.C. 608 (C.A.); Burton v.
Young (1867), 17 L. C. Rep. 379 (Sup. Ct.); Hunnings v.
Williamson (1883), 10 Q.B.D. 459; Mexborough (Earl
of) v. Whitwood Urban District Council, [1897] 2 Q.B.
Ill (C.A.); Martin v. Treacher (1886), 16 Q.B.D. 507
(C.A.); Pickerel River Improvement Company v. Moore
et al. (1896), 17 P.R. 287 (Ont.); Rose v. Croden
(1902), 3 O.L.R. 383 (Div. Ct.); The King v. The
Associated Northern Collieries and Others (1910), 11
C.L.R. 738 (Aus. H.C. of Adm.); Colne Valley Water
Company v. Watford Gas and St. Albans Gas Company,
[1948] I All E.R. 104 (C.A.); Pyneboard Pty Ltd. v.
Trade Practices Commission and Another (1983), 45
A.L.R. 609 (Aus. H.C. of Adm.); Trade Practices Com
mission v. TNT Management Pty Ltd. and Others
(1984), 53 A.L.R. 213 (F.C. of A.); Triplex Glass Com
pany, Limited v. Lancegaye Safety Glass (1934), Lim
ited, [1939] 2 K.B. 395 (C.A.); Blunt v. Park Lane
Hotel, Limited et al., [1942] 2 K.B. 253 (C.A.).
COUNSEL:
Guy Du Pont and Marc Noël for appellant
(defendant).
Edward R. Sojonky, Q.C. and Michael F.
Ciavaglia for respondent (plaintiff).
SOLICITORS:
Verchère, Noël and Eddy, Montréal, for
appellant (defendant).
Deputy Attorney General of Canada for
respondent (plaintiff).
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is an appeal from an inter
locutory order [[1986] 2 F.C. 312 (T.D.)] by the
other defendant in the action described in my
concurrent reasons for judgment in appeal no.
A-365-86 [[1987] 2 F.C. 131]. For the reasons
given therein, I accept that the action is a penal
action and that, in the action, the appellant is a
person charged with an offence. The order subject
of this appeal follows.
IT IS ORDERED THAT the defendant Amway Canada Limited
produce for the purposes of this action the documents listed in
Schedule I, Part II, Part B, of its List of Documents filed
August 12, 1985.
The appellant takes an unexceptionable objec
tion to the order. The documents listed in Schedule
I, Part II, Part B, are documents to which objec
tion to production was asserted on the ground of
self-incrimination. That objection was rejected. A
number of the same documents were also included
in the appellant's claim of solicitor/client privilege,
which was allowed. The order should be amended
to delete from the documents required to be pro
duced those subject of solicitor/client privilege.
A second objection borders on the trivial. The
appellant objects to the inclusion of the term "for
purposes of this action" in the order. Rule 455(2)
[Federal Court Rules, C.R.C., c. 663] speaks of
"production and inspection" and "the making of
copies". I trust there was no sinister intention on
the part of the framer of the notice of motion,
whose verbiage the order adopted; however, in
view of the objection, the order may as well be
amended to delete the offending words and substi
tute "for inspection and the making of copies at
the office of the appellant's counsel in Montreal".
The appellant's principal argument is that, as a
person charged with an offence, it cannot be com
pelled to testify and it cannot therefore be com
pelled to produce documents. The fallacy of this
argument lies in the fact that a party does not
testify by complying with the requirement that it
produce documents. The evidentiary value, if any,
of the documents is inherent; they speak for them
selves. That they may be evidence against him
does not depend at all on what the person required
to produce them has to say about them. He
cannot, if a person charged, be compelled to say
anything about them.
The appellant's argument is the same one that
was rejected in reasoned judgments of the
Supreme Court of Canada in Marcoux et al. v.
The Queen, [1976] 1 S.C.R. 763 and this Court in
Ziegler v. Hunter, [1984] 2 F.C. 608 (C.A.). In
the former, Dickson J., as he then was, at page
769, epitomized the law in the following terms:
In short, the privilege extends to the accused qua witness and
not qua accused, it is concerned with testimonial compulsion
specifically and not with compulsion generally ....
In the latter, at page 639, Hugessen J., explained
why that is the law.
The rationale behind the privilege against self-incrimination
is to prevent persons being questioned in inquisitorial proceed
ings and then prosecuted as a result of their answers. It is a
logical counterpart to our rules relating to admissibility of
confessions. The purpose of the privilege is surely not to prevent
witnesses from being obliged to produce what could be taken
from them by force in any event. An accused person cannot be
forced to testify in his own case and, therefore, is entitled to be
protected against the consequences of testifying in someone
else's; he has no protection against documents or things found
in his possession being used against him and, therefore, has no
right to refuse to produce them, when required.
While both of these decisions dealt with pre-
Charter circumstances, I find nothing in the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] that assists
the appellant in its argument.
I would, pursuant to paragraph 52(b) of the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c.
10], vary the order of the Trial Division as indicat
ed above, and would otherwise dismiss the appeal.
Success being divided, I would make no order as to
costs.
HEALD J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
STONE J.: This appeal is brought from a deci
sion of Reed J. in the Trial Division rendered
November 29, 1985 allowing a motion by the
respondent requiring the appellant to produce
some thirty-three documents listed in Schedule I,
Part II, Part B of its Rule 448 List of Documents
filed on August 6, 1985.
I agree with Mr. Justice Mahoney that the order
below should be amended in the two aspects he
proposes. As for the production of the documents
in question, the appellant makes three assertions
with which I wish to deal. They are:
(a) It is a principle of law that a plaintiff in an
action to enforce a penalty for an offence is not
entitled to discovery of documents from a
defendant;
(b) It is a further principle of law that a defen
dant may refuse to produce for inspection any
document that would tend to render him liable for
punishment, penalty or forfeiture;
(c) Neither of these principles has been abolished
by statute in Canada but, if any statute has pur
ported to do so, it must be seen as inconsistent
with paragraph 11(c) of the Canadian Charter of
Rights and Freedoms and therefore of no force
and effect to the extent of the inconsistency.
I will discuss these assertions in turn.
It is preliminary to application of the first prin
ciple that this be an action brought to enforce a
penalty for an offence. I think it is. It is based
upon alleged violations of the sections 18 and 180
and also of paragraphs 192(1)(b) and (c) of the
Customs Act, R.S.C. 1970, c. C-40. That a penal
ty is provided for is apparent from the phrase "in
addition to any other penalty to which he is subject
for any such offence" (my emphasis) in subsection
192(2).' The respondent, in effect, asserts that
offences were committed and claims a penalty
under the statute for their commission. The penal
ty is a punishment inflicted on account of the
appellant's conduct. It is not merely a civil remedy
for recovery of any unpaid customs duties and
taxes. Punishment may also be by summary
conviction.
The question then becomes whether the legal
privilege asserted in (a) above still exists so as to
disentitle the respondent to discovery of the docu
ments. It is not to be confused with the common
law privilege against self-incrimination asserted in
(b) above. Although usually found together under
the rubric "self-incrimination" they differ in sub
stance and derivation. 2 The former has been recog
nized in Canada for many years (Burton v. Young
(1867), 17 L. C. Rep. 379 (Sup. Ct.)).
In Runnings v. Williamson (1883), 10 Q.B.D.
459, at pages 462-464, the Queen's Bench Division
rescinded an order of a master requiring discovery
of documents by the defendant in an action for
penalties under a statute. There were, it seems,
what Lord Esher M.R. referred to in Mexborough
(Earl of) v. Whitwood Urban District Council,
[1897] 2 Q.B. 111 (C.A.), at pages 114-115 as
"two rules of law" which have always existed as
part of the English common law "from time
'192....
(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.
2 See e.g. Cross on Evidence, 6th ed., (London: Butterworths,
1985) at pp. 380-381.
immemorial". And at the latter page he describes
them:
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 not 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.
In England, in earlier times, an action for a
penalty was sometimes brought by a "common
informer". He was a member of the general public
deriving authority to sue from the statute that
inflicted the penalty. He either kept the entire
amount recovered or, if the recovery was for the
Sovereign, poor of the parish, etc., he shared it. In
the latter case the action was qui tam or a purely
penal one.' The courts viewed a common informer
with suspicion, so much so that they refused to
assist him in his case. The defendant neither had
to produce his documents nor answer interrogato
ries, and could stand mute at his trial. In com
menting upon the decision of the Court of Appeal
in Martin v. Treacher (1886), 16 Q.B.D. 507
wherein discovery of documents in an action for a
penalty was refused, Lord Esher M.R. said at page
115 of Mexborough:
It was held in that case that there is a rule of law which
prevents the application of any of the procedure with regard to
discovery in an action for a penalty by a common informer. It is
not put on any ground peculiar to courts of equity, but on the
ground of a general rule of law applicable both in courts of law
and courts of equity. The principle there laid down is equally
applicable to discovery by affidavit of documents as to discov
ery by interrogatories. It was held that the procedure with
regard to discovery, which includes both methods of discovery,
was not available to an action by a common informer.
3 See generally 3 Black. Comm. 4th Eng. ed. (Kerr), at
p. 149, Common informers were regulated by a statute passed
in 1576, "An act to redress disorders in common informers", 18
Eliz., c. 5.
The same view was expressed by A. L. Smith L.J.
at page 118. Thus the principle asserted was well
established both at law and in equity.
The present action is for a penalty. It is not
brought by a common informer but that makes no
difference nowadays. What is important is the
nature of the proceeding. If it be for the sole
purpose of recovering a penalty then, apart from
statute, the defendant need not produce his docu
ments for discovery (see e.g. Pickerel River
Improvement Company v. Moore et al. (1896), 17
P.R. 287 (Ont.); Rose v. Croden (1902), 3 O.L.R.
383 (Div. Ct.), at page 387; The King v. The
Associated Northern Collieries and Others
(1910), 11 C.L.R. 738 (Aus. H.C. of Adm.);
Colne Valley Water Company v. Watford Gas and
St. Albans Gas Company, [1948] 1 All E.R. 104
(C.A.), per Lord Goddard C.J. at page 106; Pyne-
board Pty Ltd. v. Trade Practices Commission
and Another (1983), 45 A.L.R. 609 (Aus. H.C. of
Adm.), per Mason A.C.J., Wilson and Dawson JJ.
at pages 613-614, per Murphy J. at page 621 and
per Brennan J. at pages 624-625; Trade Practices
Commission v. TNT Management Pty Ltd. and
Others (1984), 53 A.L.R. 214 (F.C. of A.) at
pages 217-218).
As for the principle asserted in (b) above, it
amounts to an aspect of the old common law
privilege against self-incrimination (see e.g. Tri-
plex Glass Company, Limited v. Lancegaye Safety
Glass (1934), Limited, [1939] 2 K.B. 395 (C.A.),
per Du Parcq L.J. at page 403; Blunt v. Park Lane
Hotel, Limited et al., [1942] 2 K.B. 253 (C.A.)
per Goddard L.J., at page 257). That privilege has
been whittled away by statute in Canada. In its
statutory expression (section 5 of the Canada Evi
dence Act [R.S.C. 1970, c. E-10] and provincial
legislation of like effect) it no longer enjoys the
scope it once did at common law. (see Marcoux et
al. v. The Queen, [1976] 1 S.C.R. 763, per Dick-
son J. [as he then was] at pages 768-769; Ziegler
v. Hunter, [1984] 2 F.C. 608 (C.A.) and see also
Ratushny, Self-Incrimination in the Canadian
Criminal Process (Toronto: Carswell, 1979) at
page 92). I am in full agreement with Mr. Justice
Mahoney that it cannot avail the appellant as a
basis for refusing to produce the documents in
question.
I come then to the next question, namely,
whether the privilege in (a) above has been abol
ished in Canada. In this regard section 170 of the
Customs Act is relevant. It was added to the
statute in 1888 (51 Vict., c. 14), and reads:
170. Whenever any suit is instituted under this Act, or an
order of the court is obtained, all invoices, accounts, books and
papers relating to any imported goods to which such suit or
order relates shall be produced in court, or to any person whom
the court directs, and if the same are not so produced within
such time as the court prescribes, the allegations on the part of
the Crown shall be deemed to be proved, and judgment shall be
given as in a case by default; but this provision does not relieve
the person disobeying any such order from any other penalty or
punishment that he may have incurred by disobedience of any
such order.
The appellant would have us read it as merely
establishing an alternative procedure for obtaining
production of material in any suit brought by the
Crown under the statute and that it has applica
tion only where the Crown obtains a court order in
such a suit. The absence of such an order in the
present case, it is contended, means that the privi
lege in (a) above remains intact and is properly
invoked. I cannot agree. The section requires pro
duction in court 4 in any such action of all invoices,
accounts, books and papers relating to any import
ed goods. No court order is needed. The words of
the statute are sufficient. The obligation to pro
duce flows from a suit being instituted. The Court
may also order production of the material to "any
person". But the Crown is not entitled, in any
event, to have judgment given as in a case by
default unless it first obtains a court order for
The section provides for the production of such material
and not with its admissibility into evidence. The Rules of the
Court are intended "to render effective the substantive law and
to ensure that it is carried out" (Rule 2(2)). It appears inspec
tion of any documents so produced could be made pursuant to
the rules touching that subject.
production of the material within a prescribed
time and shows non-compliance therewith.
It is true, as the appellant contends, that the
section contains no explicit abolition of the privi
lege and that in general a statute will not be
interpreted so as to take away a common law right
unless the intention to do so is made clear either by
express words or by necessary implication. On the
other hand, the obligation to produce the material
is cast in broad language that is not subject to any
qualification. The section is part of a statutory
scheme for imposing, levying and collecting cus
toms duties and taxes. Its character and purpose
are such that a construction which would defeat its
operation ought to be avoided (see e.g. Pyneboard
Pty Ltd. v. Trade Practices Commission and
Another (supra) at pages 617-618). Thus I must
conclude that the section overrides the privilege
and therefore that it is not available to the appel
lant in this action.
It seems to me that the words "all ... papers
relating to any imported goods" are amply broad
to include the thirty-three documents here in issue.
I cannot agree with the appellant that these words,
in effect, must be read down so as to include only.
formal customs documents required for the pur
pose of importing the goods.
Finally, I must deal with the appellant's ulti
mate assertion. It is that section 170 is inconsistent
with paragraph 11(c) of the Charters and, accord
ingly, that subsection 52(1) of the Constitution
Act, 1982 [Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.)] renders section 170 of no force and
effect to the extent of that inconsistency. This is
the only context in which a Charter argument is
made by the appellant. With respect, I cannot see
5 11. 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;
any inconsistency. Paragraph 11(c) of the Charter
is concerned with protecting a person charged with
an offence from being called against his will "to be
a witness" in proceedings against him in respect of
that offence. It has no application to the produc
tion of documents, including those required to be
listed pursuant to Rule 448 and to be produced for
inspection pursuant to Rule 453.
I would dispose of this appeal in the manner
proposed by Mr. Justice Mahoney.
HEALD J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.