June 20, 1936 (18th Parliament, 1st Session)


William Lyon Mackenzie King (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)


Right Hon. W. L. MACKENZIE KING (Prime Minister):

Mr. Speaker, the amendments made by the senate to the bill to amend the Combines Investigation Act are set forth at page 528 of the votes and proceedings of this house for yesterday. The purpose of the clause which has been deleted by the senate is merely to place the investigating commission, under the Combines Investigation Act, in the same position in respect to documents produced during an, investigation as that of a royal commission investigating under the Inquiries Act. So far as I know no one has suggested that a person who is required by a royal commission to produce documents is being subjected to proceedings which are contrary to the traditions of British law. Yet the purpose of such royal commission may be, and frequently is, to seek out wrong doing of a type punishable by fine and imprisonment.
Until amendments of last year prevented the effective use of this power equal to that exercised under the Inquiries Act, the Combines Investigation Act contained no provision limiting the use of documents produced in an inquiry at any subsequent trial. To-day documents obtained under the Inquiries Act can be used in a subsequent trial of the person who produced them, but under the Combines Act they cannot be so used.
Section 4 of the Inquiries Act reads as follows:
The commissioners shall have the power of summoning before them any witnesses, and of requiring them to give evidence on oath, or on solemn affirmation if they are persons entitled to affirm in civil matters, and orally or in writing, and to produce such documents and things as the commissioners deem requisite to the full investigation of the matters intt>
which they are appointed to examine.
Under section 11 of the Inquiries Act the commissioners may be authorized to appoint and depute any qualified person to exercise these same powers and otherwise conduct any portion of the inquiry.
There appears to be no good reason why investigations under the Combines Act should be hindered and the act itself rendered practically valueless by this obstacle in its provisions which was placed in the act last year, an obstacle which does not impede investigations under such statute as the Inquiries Act.
In the Natural Products Marketing Act, passed in 1934, Part II gave to the minister, his authorized representatives, and to committees appointed to investigate matters of excessive price spreads, all the powers of a commissioner appointed under the Inquiries Act. Under the marketing act persons receiving or attempting to receive excessive spreads in natural products to the detriment of the public are guilty of an indictable offence.
Yet the marketing act does not provide that a document required, to foe produced in an inquiry shall not be admissible in any subsequent trial of the person who so produced it. Neither do the security frauds prevention acts which are in force in various provinces of the dominion. The Ontario Security Frauds Prevention Act of 1930, section 10, contains provisions on this point as follows with regard to investigations by the attorney general or his authorized representatives "to ascertain whether any fraudulent act, or any offence against this act or the regulations has been, is being, or is about to be committed." I quote:
No person shall be entitled to claim any privilege in respect of any document, record or thing asked for, given or produced on the ground that he might be incriminated or exposed to a penalty or to civil litigation thereby, and no evidence given shall be privileged except under the Evidence Act or the Canada Evidence Act.
Nova Scotia, Quebec, Alberta and British Columbia have passed acts for the prevention of security frauds, which contain identical or similar provisions. Various other acts which inolude provisions authorizing investigations, such as the Ontario Milk Control Act of 1934 and the Quebec Electricity Commission Act of 1935, provide that witnesses may be required to produce documents, but do not limit the use of such documents in any trial.
Under the Tariff Board Act of 1931, the governor in council was authorized, by section 4, subsection 4, to empower the tariff board to hold any inquiry authorized by the Combines Investigation Act and in so doing to exercise all the powers vested in the registrar or commissioners appointed under the combines act. These powers included that of requiring production of documents which could nevertheless be later used at the trial of the person producing them, the same power which remained in the act until it was removed last year.
One reason for this unlimited requirement for the production of documents under these various accounts, including the combines act as it was, is that the person giving evidence and producing documents is doing so in an investigation and not in a court. He is not accused of a crime and is not on trial. If as a result of such investigations any person is later charged with an indictable offence, he is not obliged to give evidence at his trial, and no statement he made in an inquiry under the combines act is admissible against him. His proof of a document produced in an inquiry cannot be used as proof
Combines Investigation Act

of the document in the trial; it would have to be proven by someone other than the accused.
It has been suggested in another place that the commission can issue a search warrant and compel production, that it has all the power that the crown has in any court of law. That is incorrect; the combines act does not give such wide powers to the investigating commission.
Section 24 of the combines act as it was prior to the 1935 amendment did not take away from a defendant in a criminal proceeding any right which he would otherwise have had. What it did do was to guarantee to the member of an alleged combine that any oral evidence which he might be required to give during an investigation could not be. used against him in any subsequent prosecution. It gave to him the same protection as the Canada Evidence Act makes available to a witness in a trial. Under section 5 of the Canada Evidence Act a witness at one trial! may be compelled to answer a question, but the same section provides that his answer cannot be used against him in that or any other criminal trial except for perjury. The exemption is clearly restricted, however, to answers to questions, in other words to oral evidence. In no section of the Canada Evidence Act is it provided that the documents which a witness is required to produce are inadmissible against him in any subsequent proceeding.
In speaking on the amendment to this act a few days ago I read to the house a communication which I had received from Mr. Sedgewiek, chief commissioner of the Dominion Trade and Industry Commission, setting forth the need for the amendment to the act. Mr. Sedgewiek has since read the debate which has taken place on this measure in the other house and has given me his opinion with respect to some of the impressions he gathered from it.
He entirely disagrees with the argument that a person charged with a criminal offence is entitled to protection from documents which he has previously been called upon to produce. He points out, as the court pointed out in a British Columbia fruit combine case, that such a provision would keep from the court documentary evidence which, but for the act, would be admissible.
Mr. Sedgewiek says it has been alleged that if a corporation were involved the secretary or manager of the company could be required to produce the documentary evidence and then, while it would be inadmissible against these individuals, it could be used against the company.

Mr. Sedgewiek says that in his opinion it would be inadmissible against the company, too, if the act remains as it is.
The opinion of the law officers is the same as that of Mr. Sedgwick. I have been given the following opinion by the Justice department with respect to the amendment which is at the moment before us for consideration:
With respect it is suggested that there is a misapprehension on the part of the members of the senate as to the effect and purpose of the amendment to section 24. As the section now stands if a person investigated is required to produce the agreement which is objected to as offending against the act, section 24 renders this agreement thereafter inadmissible in a prosecution of such person. Surely such a document should be admissible against him if properly proved, i.e., by oral evidence other than his own.
The purpose of the amendment is not to render admissible documents otherwise inadmissible, but to provide that admissible documents are not inadmissible.
If the section stands, the best thing that could happen to a person guilty of combining in restraint of trade is to be required on investigation to produce the documents proving the offence. Thereafter he will be immune from conviction by means of the agreement.
I should like to add that if the amendment made ,by the senate is not withdrawn and the clause retained in the bill as introduced in this house, it will be necessary for the government with respect to certain inquiries which it was hoped it might be possible to conduct under the Combines Investigation Act, to proceed by royal commission under the Inquiries Act, and until the clause deleted by the senate is restored, a number of royal commissions may have to issue to conduct the investigations which it was intended should be made as provided for by investigation under the combines act. I therefore move, Mr. Speaker:
That a message he sent to the senate to acquaint their honours that this house disagrees with their amendment to Bill No. 97, an act to amend the Combines Investigation Act, for the following reason:
Because the amendment of their honours would have the effect of exempting documents which are ordered to be produced during an investigation from use in any subsequent criminal proceedings against the person producing them, thereby rendering impossible effective enforcement of the Combines Investigation Act.

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