T-2265-86
T-2268-86
T-2269-86
Director of Investigation & Research, ex rel.
Robert Weist (Applicant)
v.
Irving Equipment, a division of J. D. Irving, Lim
ited, and Barrington Industrial Services Limited
(Respondents)
INDEXED AS: CANADA (DIRECTOR OF INVESTIGATION AND
RESEARCH) V. IRVING EQUIPMENT
Trial Division, Muldoon J.—Ottawa, November
24; December 1, 1986.
Combines — Motions to (1) authorize retention of seized
documents and (2) that access thereto be limited — First
motion granted as records seized kind authorized by warrant
and report to judge meeting requirements of Act, s. 15(2)
Inapplicability of Charter ss. 7, 8 and 11(d) Applicability
of common law presumption of innocence — Non-access
orders appropriate in both private and public law litigation
Decision of Dickson J. in Maclntyre explained No interest
served in giving public access to respondents' business secrets
if no charge laid — Courts having supervisory power over own
records — Second motion granted.
Constitutional law Charter of Rights — Life, liberty and
security — Seizure of documents under Competition Act —
Motion for order limiting access to business secrets No
charge laid — Presumption of innocence — Security of person
— Public perception of guilt as judge found reasonable
grounds to issue warrants — Ignorance of public to be dealt
with by education, not Charter Whether search and seizure
unreasonable under Charter s. 8 considering prejudice due to
publicizing secret information — Corporations entitled to
human rights No relief under Charter.
Constitutional law — Charter of Rights Criminal pro
cess — Competition Act Documents seized No charge
laid — Motion that retention be with limited access — Busi
ness secrets — Presumption of innocence — Charter s. 11(d)
inapplicable.
Criminal justice Common law presumption of innocence
Competition Act — Documents containing business secrets
seized — No charge laid Motion granted that retention be
on limited access basis Non-access orders appropriate in
both private and public law cases — No valid interest serve6
by giving public access to documents.
Practice — Affidavits — In support of motion — That of
counsel appearing — Such affidavits normally rejected for
several reasons — Received where counsel from afar, matter
urgent and opposing counsel not objecting — Court never
again making such exception unless compellingly persuasive
reasons.
Two motions came on before the Court sitting in camera.
The Director of Investigation and Research under the Compe
tition Act moved under paragraph 15(1 )(b) and subsection
15(3) for an order authorizing the retention of certain docu
ments including quotations to customers, lists of customers,
equipment rental rate schedules, promotional brochures and
market analysis which had been seized pursuant to section 13
warrants. The respondents sought an order that the documents
be retained on a confidential basis and with limited access
unless and until a charge was laid. The affidavit in support was
that of counsel. While neither side actively opposed the other's
motion, there was no consent.
The respondents' motion was based on Charter sections 7, 8
and I 1(d). It was argued that, at this stage of the proceedings,
respondents were in the position of the "innocent persons"
referred to by Dickson J. [as he then was] in the Maclntyre
case. There was a presumption of innocence and the respon
dents' security of the person, as guaranteed by Charter section
7, would be prejudiced if their business secrets became acces
sible to competitors and the public. Since a judge had found
that there were reasonable grounds for issuing the warrants, the
public perception would be that respondents were probably
guilty but, not having been charged, they could not repudiate
the "accusations". Invoking Charter section 8, the respondents
maintain that to publicize this sensitive commercial informa
tion before a charge is laid would be so prejudicial as to render
the search and seizure unreasonable. Finally, while conceding
that the Charter paragraph 11(d) right to be presumed inno
cent until proven guilty has not come into play as they have yet
to be charged, the respondents submit that the presumption of
innocence should extend to persons in their position.
Held, the motions should be granted without costs.
The report to a judge produced by the applicant was in
conformity with the requirements of subsection 15(2) of the
Act. The records seized were of the kind authorized by the
warrant. Subsection 16(4) provides for the further detention of
things seized if a judge is satisfied that this is warranted.
It was bad practice for the affidavit in support to be that of
counsel appearing on the motion. There were three reasons for
rejecting the affidavits of counsel for a party: (1) everyone had
a right to know if a person spoke as witness or professional
adviser; (2) a conflict could arise between the lawyer's role as
witness and that of advocate: no witness can deal objectively
with the credibility of his own testimony; (3) the lawyer could
expose himself to cross-examination on matters covered by
solicitor-client privilege. On this one occasion, the Court would
receive the affidavit in view of the urgency of the matter and
the facts that respondents' counsel had come to Ottawa from
New Brunswick and opposing counsel consented to its accept
ance. Never again would the Court do so in the absence of the
most compellingly persuasive reasons.
Although it seemed ludicrous that a corporation could invoke
human rights and freedoms, the constitution was developing in
that direction. The respondents' arguments were creative but it
was not certain that relief under the Charter was available. 1f
the public was so unsophisticated as to misunderstand the
difference between prima facie reasonable grounds and proof
beyond a reasonable doubt, the answer lay in public education
rather than in invoking Charter sections 7 or 8. It was the
common law presumption of innocence, rather than the Chart
er, which could avail the respondents.
Protection for business secrets is frequently accorded in
commercial litigation. Non-access orders were as appropriate in
public law as in private law cases.
When, in Mac/ntyre, Dickson J. spoke of a right of public
access to the information and the warrant after it was executed
and something found, he meant something cogent. Under the
Competition Act, the Director has 60 days to decide whether
anything cogent has been seized. A comparison of values and
interests had to be made. No valid interest would be served by
giving public access to respondents' business secrets if the
respondents are not to be charged. Should charges be laid, the
matter would enter the public domain and public access to the
investigator's sworn information could not be prohibited. Every
court had supervisory and protecting power over its own
records. The information should be kept confidential with
access limited to the parties and court officials so that the
respondents' sensitive business secrets would not be unneces
sarily subverted.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 2(b), 7, 8, 11(d).
Competition Act, R.S.C. 1970, c. C-23 (as am. by S.C.
1986, c. 26, s. 19), ss. 13 (as am. idem, s. 24), 15 (as
am. idem), 16(4) (as am. idem).
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 52.
Criminal Code, R.S.C. 1970, c. C-34, s. 443.2 (as added
by S.C. 1985, c. 19, s. 70).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
11(3).
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Nova Scotia et al. v. Maclntyre,
[1982] 1 S.C.R. 175; 132 D.L.R. (3d) 385.
CONSIDERED:
Lex Tex Canada Ltd. v. Duratex Inc., [ 1979] 2 F.C. 722
(T.D.); Canadian Newspapers Co. Ltd. v. Attorney-Gen
eral of Canada and two other actions (l986), 55 O.R.
(2d) 737 (H.C.); Can. Newspapers Co. v. Can. (A.G.),
[1987] 1 W.W.R. 262; (1986), 28 C.C.C. (3d) 379 (Man.
Q. B.).
REFERRED TO:
R. v. A. & A. Jewellers Limited, [1978] 1 F.C. 479
(T.D.); Martinoff v. Gossen, [1978] 2 F.C. 537 (T.D.);
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; 11
D.L.R. (4th) 641; Southam Inc. v. Dir. of Investigation
& Research, [1983] 3 W.W.R. 385 (Alta. C.A.); Thom-
son Newspapers Ltd. et al. v. Director of Investigation
and Research et al. (1986), 26 D.L.R. (4th) 507 (Ont.
H.C.).
COUNSEL:
Winston K. Fogarty for applicant.
Gerald B. Lawson for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Lawson & Lawson, Saint John, New Bruns-
wick, for respondents.
The following are the reasons for order ren
dered in English by
MULDOON J.: Irving Equipment is the respon
dent in proceedings T-2265-86 and Barrington
Industrial Services Limited is the respondent in
proceedings T-2268-86 and T-2269-86, but since
these reasons apply in all proceedings and since the
respondents are identically represented by one
counsel and one firm of solicitors, a copy of these
written reasons shall be lodged in the file for each
of these proceedings.
Two motions came simultaneously before the
Court sitting in camera in Ottawa, in the presence
of counsel for the applicant and counsel for the
respondents. Both counsel participated in each
motion's hearing to greater or lesser extent as will
be seen hereinafter.
MOTION FOR RETENTION OF THINGS SEIZED
The first motion was made on behalf of the
applicant, pursuant to paragraph 15(1)(b) and
subsection 15(3) of the Competition Act, R.S.C.
1970, c. C-23, as am. by S.C. 1986, c. 26, ss. 19
and 24, for an order authorizing the applicant to
retain records or things seized pursuant to war
rants earlier issued under section 13 [as am. idem]
of the Act.
Part I of the Act bears the title INVESTIGATION
AND RESEARCH. A review, by recitation, of section
15 is warranted here:
15. (1) Where a record or other thing is seized pursuant to
paragraph 13(1)(d), subsection 13(7) or section 14, the Direc
tor or his authorized representative shall, as soon as
practicable,
(a) take the record or other thing before the judge who
issued the warrant or a judge of the same court or, if no
warrant was issued, before a judge of a superior or county
court or of the Federal Court; or
(b) make a report in respect of the record or other thing to a
judge determined in accordance with paragraph (a).
(2) A report to a judge under paragraph (1)(b) in respect of
a record or other thing shall include
(a) a statement as to whether the record or other thing was
seized pursuant to paragraph 13(1)(d), subsection 13(7) or
section 14;
(b) a description of the premises searched;
(c) a description of the record or other thing seized; and
(d) the location in which it is detained.
(3) Where a record or other thing is seized pursuant to
section 13 or 14, the judge before whom it is taken or to whom
a report is made in respect of it pursuant to this section may, if
he is satisfied that the record or other thing is required for an
inquiry or any proceeding under this Act, authorize the Direc
tor to retain it.
The applicant chose, as is his right, to invoke
paragraph 15(1)(b) of the Act.
The report which the applicant produced con
forms adequately in these particular instances with
the requirements of subsection 15(2). It ought to
be noted that, while counsel for the respondents
did not actively oppose the applicant's motion in
this regard, such counsel pointedly declined to
consent to the making of the order which the
applicant seeks. Accordingly, the applicant's coun-
sel was not relieved of the task of making the
applicant's case, if possible, for retention of the
records seized. The report is formulated by Robert
Weist, the relator and authorized representative
herein of the applicant, the Director of Investiga
tion and Research. The records seized appear to be
of the kind authorized by the warrant and include:
price offers and quotations to customers, customer
lists, equipment rental rate schedules, payroll reg
isters, internal notes relating to price quotations,
promotional brochures, market analysis and other
documents which have probable probative bearing
on the alleged offences. The descriptions of those
records appear to be adequate in this instance,
having regard to the sworn informations upon
which issuance of the warrants was based. Such
descriptions could be too cryptic in other instances,
perhaps.
The retention and care of seized records or
things are provided in law by section 16 of the
Competition Act. Of particular interest at this
stage of proceedings is subsection 16(4) [as am.
idem] which in its pertinent passages runs as
follows:
16. ...
(4) Any record or other thing ... the retention of which is
authorized under subsection 15(3), shall be returned to ... the
person from whom it was seized no later than sixty days after
... its retention was authorized, unless, before the expiration of
that period,
(a) the person ... from whom it was seized agrees to its
further detention for a specified period of time;
(b) the judge who authorized its production or retention or a
judge of the same court is satisfied on application that,
having regard to the circumstances, its further detention for
a specified period of time is warranted and he so orders; or
(e) proceedings are instituted in which the record or thing
may be required.
Counsel for the respondents would accord no
agreement on their behalf pursuant to paragraph
16(4)(a). Therefore the Director may retain the
seized records under section 16 of the Act only for
so long as is permitted pursuant to paragraphs
16(4)(b) and (c). This application is granted as of
November 24, 1986, without costs for or against
any party hereto.
MOTION FOR ORDER OF CONFIDENTIAL
RETENTION OF THE INFORMATION,
WITH LIMITED ACCESS, UNLESS AND UNTIL
A CHARGE BE LAID AGAINST THE
RESPONDENTS HEREIN
PROCEDURAL MATTERS
The respondents' motions are for the orders
sketched above. The motion in each matter is
supported by the affidavit of counsel herein. To
purport to be both counsel and witness in one and
the same litigious matter is bad practice in this
Court and, as well, objectively.
There is an excellent and apparently
unpremeditated trilogy of decisions which together
make a useful practice textbook for the formula
tion and use of affidavits in this Court. They are:
R. v. A. & A. Jewellers Limited, [1978] 1 F.C.
479 (T.D.), a decision of Associate Chief Justice
Thurlow, as he then was; Martinoff v. Gossen,
[1978] 2 F.C. 537 (T.D.) (at page 542), a decision
of Mr. Justice Collier; and Lex Tex Canada Ltd.
v. Duratex Inc., [1979] 2 F.C. 722 (T.D.) (to page
725), a decision of Mr. Justice Addy.
There are at least three good reasons for reject
ing affidavits sworn by solicitors and counsel for a
party. First, everyone including the speaker has
the right and obligation to be perfectly clear about
whether he or she speaks as a witness or as a
professional adviser. Second is the possibility of
conflict with professional responsibility. Affidavits
like oral testimony are expressed solemnly upon
oath or the legal (if not moral) equivalent thereof.
No counsel or solicitor, who is, after all, an officer
of the Court, ought ever to place himself or herself
into the quandary or risking a conflict of interest
between remunerative (but yet honourable)
advocacy and possibly unpalatable truth sworn on
oath. See subsection 11(3) of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10]. No witness
can deal objectively with the weight or credibility
of his own testimony. Lawyers for opposing parties
ought not to be exigible to cross-examination by
each other, for fear of sacrifice of one role for the
other, or the lamentable appearance of such sacri
fice. Third, unless the solicitor or counsel obtain
the previous blanket absolution of the client, then
he or she will be obliged to assert the client's
solicitor-and-client privilege mentally when for
mulating the affidavit and, of course, orally only
when being cross-examined on it. As was stated by
Addy J. in the Lex Tex case (above) at pages 723
and 724:
Whatever might be the motive for doing so, it is completely
improper and unacceptable for a solicitor to take an affidavit
even in an interlocutory matter where he attests to matters of
substance and might therefore expose himself to being cross-
examined on matters covered by solicitor-and-client privilege.
Here counsel for the respondents has placed
them in the jeopardy of having the affidavit in
support of their serious, urgent and important
motions utterly rejected because he is the depo-
nent. Counsel for the applicant does not actively
oppose the respondents' motions, but is instructed
not to consent to them. His posture here does not
incline against receiving the affidavit sworn by
counsel in each proceeding. Counsel for the appli
cant notes that his adversary has come from Saint
John, New Brunswick, to present the respondents'
urgent and important motions in Ottawa and gen
erously moved that the affidavit be received and
accepted in each matter before the Court. So be it,
on this one occasion only, but never again, without
the most compellingly persuasive reasons which
can hardly be imagined.
SUBSTANTIVE MATTERS
Although counsel for the applicant Director of
Investigation and Research (herein sometimes: the
D.I.R.) does not actively oppose the respondents'
motions, yet, because these matters are being
argued in camera, the Court exacted of the
D.I.R.'s counsel that he responds at least as if he
were an amicus curiae, a not embarrassing or
unnatural role for a non-contending, non-consent
ing party's counsel. His contribution in that role
has been most helpful, as was also acknowledged
by the respondents' counsel.
The respondents' motion in regard to each war
rant's supporting sworn information asks for:
... an Order that all copies of the Information filed in support
of the Application for the granting of a Search Warrant in this
matter be maintained as confidential, with access to the same
limited to officials of this Honourable Court, officials or repre
sentatives of J.D. Irving, Limited, officials or representatives of
Barrington industrial Services Limited and anyone who has the
written consent of J.D. Irving, Limited or Barrington Industrial
Services Limited, and the Applicant or anyone who has the
written consent of the Applicant. This order is sought on the
grounds that the release of such information would violate the
rights of J.D. Irving, Limited and Barrington Industrial Ser
vices Limited under the Canadian Charter of Rights and
Freedoms, more specifically Sections 7, 8 and 1 1(d) thereof.
The affidavit in support of the motion recounts
the following among other matters in this matter
to which no objection was taken on behalf of the
D.I.R.:
5. That I have reviewed the said Information of Robert Weist
and have reviewed allegations set out in such Information with
officials of Irving and Barrington and have reviewed certain of
the documents seized pursuant to the said Search Warrants,
and based on this review, it is my opinion that Irving and
Barrington have not, either together or alone, committed any
offence as alleged in the said Information.
(Those above mentioned officials would have been
the natural deponents to swear their oaths as to the
facts, and to be exigible to cross-examination
thereon.)
6. That I do verily believe that Irving and Barrington would
suffer damage by public disclosure of the pricing and commer
cial information set out in the said Information.
7. That I do verily believe that the public, in reading the said
Information would presume, until Irving and Barrington had an
opportunity to answer the matters raised in the Information,
that Irving and Barrington had acted unlawfully, and that such
presumption of guilt raised in the minds of the public would
damage the reputation of Irving and Barrington among the
public at large and customers and potential customers of Irving
and Barrington in particular.
8. That the Respondents seek an Order by this Honourable
Court that all copies of the Information filed in support of the
Application for the granting of a Search Warrant in this matter
be maintained as confidential unless and until a charge is laid
against the Respondent in this matter, with access to the said
Information limited to officials of this Honourable Court
officials or representatives of J.D. Irving, Limited, officials oi
representatives of Barrington Industrial Services Limited, anc
anyone who has the written consent of J.D. Irving, Limited oi
Barrington Industrial Services Limited, and the Applicant oi
anyone who has the written consent of the Applicant.
A body of jurisprudence, cited by both counsel,
is before the Court. The following were cited by
the respondents' counsel: Attorney General oi
Nova Scotia et al. v. Maclntyre, [ 1982] 1 S.C.R,
175; 132 D.L.R. (3d) 385; Hunter et al. v. South-
am Inc., [1984] 2 S.C.R. 145; 11 D.L.R. (4th)
641; and its immediate predecessor Southam Inc.
v. Dir. of Investigation & Research, [1983] 3
W.W.R. 385 (Alta C. A.). Counsel for the D.I.R.,
more as amicus curiae than as the respondents'
adversary, cited: Thomson Newspapers Ltd. et al.
v. Director of Investigation and Research et al.
(1986), 26 D.L.R. (4th) 507 (Ont. H.C.) and the
appeal decision therein, of the same style of cause
(the applicants being appellants and cross-respond
ents), (unreported). There is also, counsel noted.
the decision by Osler J. of the Ontario High Court
of Justice, in Canadian Newspapers Co. Ltd. v.
Attorney-General of Canada and two othe,
actions (1986), 55 O.R. (2d) 737, in which he
refers to the decision of Barkman J. of the Manito-
ba Queen's Bench in Can. Newspapers Co. v. Can.
(A.G.), [1987] 1 W.W.R. 262; (1986), 28 C.C.0
(3d) 379. Both of the latter two decisions come tc
the same conclusion, namely, that section 443.2 of
the Criminal Code [R.S.C. 1970, c. C-34 (a:
added by S.C. 1985, c. 19, s. 70] contravene;
paragraph 2(b) of the Canadian Charter of Right!
and Freedoms [being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c
11 (U.K.)] and that section 443.2 is therefore voic
pursuant to section 52 of the Constitution Act
1982 [Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)].
Section 443.2 of the Criminal Code provided an
indication of Parliament's notion of appropriate
public policy in this regard, thus:
443.2 (1) Where a search warrant is issued under section
443 or 443.1 or a search is made under such a warrant, every
one who publishes in any newspaper or broadcasts any informa
tion with respect to
(a) the location of the place searched or to be searched, or
(b) the identity of any person who is or appears to occupy
[sic] or be in possession or control of that place or who is
suspected of being involved in any offence in relation to
which the warrant was issued,
without the consent of every person referred to in paragraph (b)
is, unless a charge has been laid in respect of any offence in
relation to which the warrant was issued, guilty of an offence
punishable on summary conviction.
(2) In this section, "newspaper" has the same meaning as in
section 261.
The Attorney General of Canada launched appeals
from the latter two rulings but, in a news release
dated October 22, 1986, The Hon. Ramon Hnaty-
shyn confirmed that he would not pursue such
appeals. Such a development may see the demise
of section 443.2 of the Criminal Code, but the
policy upon which it was based has not been
repudiated.
The policy has in general existed in Canadian
law even before the Charter was promulgated on
April 17, 1982. The Maclntyre case, above cited,
is a potent example. There, in January, 1982, the
Supreme Court of Canada divided 5 to 4 on the
issue of whether there is a general public right to
inspect search warrants and their related informa-
tions. The minority opinion expressed by Mr. Jus
tice Martland asserted the risk to the informant in
being identified in certain kinds of criminal inves
tigations (not relevant in the case at bar here), the
confidentiality of police work, and the undesirabi
lity of making available to those engaged in crimi
nal activities the pattern of police activities in
connection with searches. That minority opinion
was also based on the tought that the "highly
prejudicial" publication of the fact that a person's
"premises are the subject of a search warrant
generates suspicion that he was in some way
involved in the offence".
The majority opinion in the Maclntyre case,
written by Mr. Justice (now Chief Justice) Dick-
son concluded (at pages 189-190 S.C.R.; 405
D.L.R.) that:
... the administration of justice argument does justify an in
camera proceeding at the time of issuance of the warrant but,
once the warrant has been executed, exlusion thereafter of
members of the public cannot normally be countenanced. The
general rule of public access must prevail, save in respect of
those whom I have referred to as innocent persons.
In the result it was declared that after a search
warrant has been executed, and objects found as a
result of the search are brought back before the
issuer, the general public could then inspect the
warrant and the information upon which it was
issued.
The respondents' motion is based on provisions
of the Charter—sections 7, 8 and 11(d). It does
seem objectively ludicrous that corporations—
those artificial, metaphysical and imaginary enti
ties, which are exploited generally as notional vehi
cles to share the risks and liabilities of industrial
and commercial enterprises—should be permitted
to invoke what are fundamentally human rights
and freedoms. However, the development of the
Constitution is already embarked on that swampy
course and this is neither the time nor the place to
reverse it.
Counsel for the respondents argues that they
are—at this stage of events, at least—the "inno-
cent persons" referred to by Dickson J. [as he then
was] in the majority decision in Maclntyre, back
in January, 1982. A few passages from those
reasons (at pages 185 to 187 S.C.R.; 401-403
D.L.R.) give a panoramic view of the opinion.
Let me deal first with the `privacy' argument. This is not the
first occasion on which such an argument has been tested in the
courts. Many times it has been urged that the `privacy' of
litigants requires that the public be excluded from court pro
ceedings. It is now well established, however, that covertness is
the exception and openness the rule. Public confidence in the
integrity of the court system and understanding of the adminis
tration of justice are thereby fostered. As a general rule the
sensibilities of the individuals involved are no basis for exclu
sion of the public from judicial proceedings.
At every stage the rule should be one of public accessibility and
concomitant judicial accountability; all with a view to ensuring
there is no abuse in the issue of search warrants, that once
issued they are executed according to law, and finally that any
evidence seized is dealt with according to law. A decision by the
Crown not to prosecute, notwithstanding the finding of evi
dence appearing to establish the commission of a crime may, in
some circumstances, raise issues of public importance.
In my view, curtailment of public accessibility can only be
justified where there is present the need to protect social values
of superordinate importance. One of these is the protection of
the innocent.
Many search warrants are issued and executed, and nothing
is found. In these circumstances, does the interest served by
giving access to the public outweigh that served in protecting
those persons whose premises have been searched and nothing
has been found? Must they endure the stigmatization to name
and reputation which would follow publication of the search?
Protection of the innocent from unnecessary harm is a valid
and important policy consideration. In my view that consider
ation overrides the public access interest in those cases where a
search is made and nothing is found. The public right to know
must yield to the protection of the innocent. If the warrant is
executed and something is seized, other considerations come to
bear.
Finally, for purposes of the case at bar, the
following passages (at pages 189 S.C.R.; 405
D.L.R.) cast a certain light:
Undoubtedly every court has a supervisory and protecting
power over its own records. Access can be denied when the ends
of justice would be subverted by disclosure or the judicial
documents might be used for an improper purpose. The pre
sumption, however, is in favour of public access and the burden
of contrary proof lies upon the person who would deny the
exercice [sic] of the right.
I am not unaware that the foregoing may seem a departure
from English practice, as I understand it, but it is in my view
more consonant with the openness of judicial proceedings which
English case law would seem to espouse.
The respondents urge not only their own inno
cence and the presumption of it in the circum
stances, but also the prejudice which they would
suffer if their business secrets recounted, albeit by
necessary hearsay, in the information were to be
now made accessible to their competitors, custom
ers and the general public. So, their counsel argues
on the high plane of unsullied commercial reputa
tion in assertion of the presumption of innocence.
Damage to that reputation and to the enshrined
presumption would inflict a deprivation of the
security of their corporate metaphysical persons in
violation of section 7 of the Charter, that which
must not be permitted, except in accordance with
the principles of fundamental justice. The present
proceedings accord the respondents their funda-
mental justice in its procedural sense, but their
counsel argues premature publicity of the sworn
information would deprive them of the protection
of the principles of fundamental justice in its
substantive sense. They argue that because the
judge who issued the warrants was satisfied that
there were reasonable grounds to believe that an
offence had been or was about to be committed—a
state of proof far removed from proof beyond a
reasonable doubt—the general public would be
induced to believe that they are probably guilty
and, not yet having been even charged with any
offence, they have no appropriate forum in which
to repudiate the "accusations", to their prejudice.
The respondents' counsel asserts therefore that
there would be not only a substantive violation of
their right to security of the person pursuant to
section 7, but also that the very same factors lead
inexorably to a violation of their right to security
from unreasonable search or seizure under section
8 of the Charter. This argument runs as follows.
The process of search and seizure whether con
junctive or, more inclusively, disjunctive as
expressed in section 8, comprehends the proce
dures, acts and facts of setting out the informant's
evidence and beliefs in the sworn information and
in thereby persuading the judge that they are
satisfactory to him or her in order to induce the
judge to issue a warrant. Because the information
must reveal a prima facie case and, in this particu
lar case, does reveal sensitive commercial informa
tion, the premature publicizing of the information
before any charge is laid, if any, if ever, would be
so highly prejudicial as to render the search and
seizure unreasonable. The respondents might never
be charged, and, they argue, if not charged, then
their rights under section 8 would be violated by
such an unreasonable search and seizure.
Further, respondents' counsel argues, since the
respondents have not yet been charged with an
offence and, pursuant to paragraph 11(d) of the
Charter, their right to be presumed innocent until
proven guilty according to law in a fair and public
hearing by an independent and impartial tribunal
does not yet formally arise according to the Chart
er. They assert that if in law they bear a presump
tion of innocence upon being charged with an
offence, then a fortiori the respondents ought
equally to have it before anyone has charged them
and might never charge them.
The respondents' arguments are thoughtful,
creative and thought-provoking. It is not certain
however that the respondents' plight accords them
resort to the provisions of the Charter. It is doubt
ful that revelation of the contents of the sworn
information would violate the respondents' section
7 rights, although one might well believe that the
revelation of commercial secrets could jeopardize
the security of a commercial corporation's "per-
son" more than the security of a commercial cor
poration's "person" more than the security of a
human individual's person. If the public be gener
ally not so sophisticated as to understand that
merely showing the prima facie reasonable
grounds to believe that an offence has been or
(even more remote) is about to be committed, is
far, far from proving the commission of such
offence beyond a reasonable doubt, then the
answer lies in public education but not in invoking
section 7 or 8 of the Charter. Formally and offi
cially the presumption of innocence arises under
paragraph 11 (d) literally only upon being charged
with an offence. In a common law ambience,
however, that presumption benefits at large every
one who is not convicted of perpetrating a particu
lar offence. It is the inherent proclivity of the
common law, with its pervasive ambience in feder
al public law, which can avail the respondents
more than the provisions of the Charter, in these
circumstances.
As to the respondents' sensitive commercial and
business management secrets, such secrets are
often, if not routinely, accorded protection in vari
ous intellectual property matters and other litiga
tion involving commercial and industrial corpora-
tions. It is true that for the most part the context is
private law but not always. The Competition
Tribunal's proposed rule 29 runs thus:
29. (I) The proceedings of the Tribunal shall be open to the
public and every person is entitled on request to access to all
documents filed with the Registrar or received in evidence by
the Tribunal.
(2) On a motion of the Director or of any other party to
proceedings of the Tribunal and after hearing arguments from
the Director and any parties wishing to present arguments, the
Tribunal may, if it is of the opinion that there are valid reasons
for its proceedings not to be open to the public or for persons
not to be given access to any documents described in subsection
(I), make an order accordingly.
There is good reason for such a rule, for it would
be wicked and absurd if the Tribunal's very pro
ceedings inflicted more damage upon a party than
a favourable decision and as much damage as, or
no less than, an unfavourable decision. The pro
ceedings and adjudications of that Tribunal are
certainly very much in the domain of public law.
Similar procedures are utilized in various adminis
trative tribunals. One can conclude non-access
orders in relation to sensitive documents are not
only appropriate in the field of private law, but
also public law where the present proceedings are
firmly located.
When, in the Maclntyre case Dickson J., as he
then was, wrote of a general right of public access
to the information and the warrant after the war
rant has been executed and something has been
found, he naturally meant something cogent in the
circumstances. A wanton seizure of a random
piece of paper or even a hectolitre of random
papers does not constitute the seizure of "some-
thing" in this context. But, because of the nature
of the alleged offences, here, under the Competi
tion Act, even some 11,000 pages of records of the
categories of documentation authorized to be
seized by the search warrant will not be known for
certain to constitute that something cogent until
they are sifted and assessed.
For this process of sifting and assessing, subsec
tion 16(4) of the Act, as already noted above,
accords the D.I.R. a period of sixty days. Such a
lengthy period is no doubt predicated on the
nature of the alleged offences, which are not overt
or physical, and not requiring weapons, tools,
chemical substances or even loot for proof, since
many of the offences are not even mala in se, as
the constitutional history of combines offences
amply demonstrates. Because the evidence which
the investigators are seeking is nothing like fire
arms, syringes, drugs, crowbars or swag, even per
fectly lawful seizures may not produce certain
evidence of an offence. It takes more than a pass
ing glance in these circumstances to discern that
something cogent has been seized upon execution
of the warrant.
In the majority opinion of the Supreme Court in
the Maclntyre case the return of something seized
upon execution of the warrant marked the point at
which the Court accorded public access to the
information. In this instance Parliament accords to
the D.I.R. a period of sixty days certain, or that
lesser period of time until a charge is laid, to
ascertain whether something cogent has been
seized upon execution of the warrant.
Now this situation requires a comparison of
values and interests. In those pre-Charter days
Dickson J., as he then was, asserted the value of
the openness of judicial proceedings. Nowadays
one sees in the two Canadian Newspapers Co. Ltd.
cases, from Manitoba and Ontario respectively, a
celebration of freedom of the press and other
media of communication, pursuant to paragraph
2(b) of the Charter.
Here it is the suspects—not yet accused—who
seek to preserve their privacy only until charges
are laid, if ever. Had they not been importuned by
investigators armed with warrants, of course the
respondents' presumably innocent business would
be and remain private. On such an application,
which is not actively opposed by the D.I.R. the
Court must scrutinize the proprieties. Clearly, the
respondents are not alleging harassment by the
applicant, and in that regard their counsel sagely
submits that they and all those in their position
ought always to be free to open the matter at large
to the media, if they complain of harassment. The
D.I.R., to express it in the vernacular, must after
all, fish or cut bait. But a complaint to the news
media would open the matter to response from the
D.I.R. and that would surely satisfy the constitu
tional interests of freedom of the press.
There seems to be no valid public interest to be
served by giving public access to each respondent's
business secrets if it is not going to be charged
with committing an offence. In that situation it
would appear that the D.I.R. would not have
sufficient evidence to prosecute. The respondents'
counsel concedes that if and when charges be laid,
the matter would enter the public domain and
public access to the investigator's sworn informa
tion could not then be legitimately forbidden.
It is clear upon the authority of the Supreme
Court of Canada in the Maclntyre case, at least,
that this Court, in common with every other court,
"has a supervisory and protecting power over its
own records". In the circumstances of this case,
the respondents have displaced the presumption of
public access upon the D.I.R.'s return of records
after execution of the, warrants. The public has no
interest, apart from curiosity, in gleaning the
details of the investigator's suspicions, the com
plainant's hearsay allegations or the respondents'
business secrets unless and until the matter is
precipitated into the public domain by the laying
of charges.
On the other hand, the public is entitled to
know, even if no charges be laid, that the D.I.R.
has initiated some activities under the Act in
regard to the respondents. Because reasons were
released for the issuance of the search warrants,
they are in the public domain. Indeed, the public is
entitled to know that those search warrants were
issued and the reasons why so long as the reasons
be formulated only so discreetly as not to abort the
respondents' privacy interests which they are now
seeking to protect. In dialogue with the Court,
counsel for the respondents went so far as to
concede that, even if this application be successful,
the public is entitled to be informed that the
respondents have instituted this motion. The
release of these reasons will accomplish that.
Therefore, unless and until charges be laid,
access is denied because it would work an injustice
upon the respondents by subverting their sensitive
business secrets unnecessarily. The allegations and
hearsay revelations in the information might be
used for a commercially improper purpose and
revelation without the formal, lawful structures of
accusation and plea in a court of competent juris
diction, and the need for proof beyond a reason
able doubt, could be defamatory. If the respon
dents be charged and convicted, so be it and so say
they. The order sought by the respondents is grant
ed; the information is to be kept confidential with
access limited to the parties and court officials,
and so to remain unless the respondents be
charged with offences under the Competition Act.
However, if the respondents choose to open the
said information to public scrutiny and debate,
they alone may do so. These reasons are open to
public access.
Since neither side actively opposed the other's
motion there are no costs awarded for or against
either party. Costs, in any event, should rarely, if
ever, be awarded in this type of proceedings.
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.