R. v. Fitzpatrick, [1995] 4 S.C.R. 154
Brendon Fitzpatrick Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for Ontario and
the Attorney General of Quebec Interveners
Indexed as: R. v. Fitzpatrick
File No.: 24254.
1995: March 22; 1995: November 16.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the british columbia court of appeal
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Self‑incrimination ‑‑ Fishermen required by statute to provide hail reports and fishing logs indicating estimated poundage of catch by species and date, time and location of catch ‑‑ Fisherman charged with overfishing ‑‑ Whether admission in evidence of hail report and fishing logs infringes fisherman's right against self‑incrimination under s. 7 of Canadian Charter of Rights and Freedoms.
The appellant was the captain of a vessel engaged in a licensed and regulated commercial groundfish fishery in British Columbia. He was charged under the Fisheries Act with three counts of catching and retaining fish in excess of the fixed quota, contrary to s. 10(1) of the British Columbia Fishery (General) Regulations. At trial, the Crown sought to admit into evidence the fishing logs and hail report made by the appellant, which indicate the estimated poundage of the catch by species, and the date, time and location of catch during each trip. All fishermen are required under s. 61 of the Fisheries Act to provide these documents and failure to do so constitutes an offence under the Act. The trial judge excluded the hail report and fishing logs on the grounds that they were self‑incriminatory and that their admission would violate the appellant's rights under s. 7 of the Canadian Charter of Rights and Freedoms. The Crown called no further evidence and an acquittal was entered. A majority of the Court of Appeal allowed the Crown's appeal, set aside the acquittal, and ordered a new trial.
Held: The appeal should be dismissed.
The protection against self‑incrimination afforded by s. 7 of the Charter is not absolute. In determining the ambit of this protection, it is important in a particular case to consider the context in which the claim for its application arises. In the present regulatory context, the principle against self‑incrimination does not prevent the Crown from relying on fishing logs and a hail report at the appellant's trial for overfishing simply because these documents are statutorily required. It is not contrary to fundamental justice for an individual to be convicted of a regulatory offence on the basis of a record or return that he is required to submit as one of the terms and conditions of his participation in the regulatory sphere.
Individuals like the appellant who are compelled to furnish hail reports and fishing logs are not in an adversarial or even inquisitorial relationship with the state at the time they provide the information. The essential purpose of the self‑reporting obligation under s. 61 of the Act is to provide fisheries officials with up‑to‑date information necessary for the effective regulation of the fishery. The information is compiled quite apart from any investigation into wrongdoing. More importantly, the "coercion" exercised by the state here is muted, for it arose only after the appellant had made a conscious choice to participate in a regulated area, with its attendant obligations. No one is compelled to participate in the groundfish fishery. In accepting his licence, the appellant is presumed to know, and to have accepted, the terms and conditions associated with it, which include the completion of hail reports and fishing logs, and the prosecution of those who overfish. Just because the information in the returns may later be used in an adversarial proceeding, when the state seeks to enforce the restrictions necessary to accomplish its regulatory objectives, does not mean that the state is guilty of coercing the individual to incriminate himself.
Further, neither of the two rationales behind the principle against self‑incrimination ‑‑ to protect against unreliable confessions and to protect against the abuse of power by the state ‑‑ is threatened by allowing the Crown to use hail reports and fishing logs in the prosecution of those who overfish. Even assuming that a true return under s. 61 of the Act can be equated to a confession, allowing the use of these returns at trial would not increase the likelihood of their being falsified. As well, there is little danger of abusive state conduct in this instance.
Hail reports and fishing logs are required from all commercial fishers and assist in the routine administration of the Fisheries Act and should be seen to constitute the "ordinary" records of those licensed to participate in the groundfish fishery. The fact that these records are statutorily required, and would not exist but for s. 61 of the Act, does not turn them into compelled testimony of the kind that is taken during an investigation into wrongdoing. The protection against self‑incrimination afforded by s. 7 of the Charter should not be understood to elevate all records produced under statutory compulsion to the status of compelled testimony at a criminal or investigative hearing. Little expectation of privacy can attach to the hail reports and fishing logs, which are produced precisely to be read and relied upon by state officials. The use of the information contained in these records is not an affront to individual dignity since they divulge nothing about the personality of the individual who has created them. There is also nothing stressful or invasive about responding to a statutory requirement to make hail reports and fishing logs ‑‑ a requirement designed to benefit not only those who comply with it, but also society at large.
Cases Cited
Referred to: R. v. S. (R.J.), [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Jones, [1994] 2 S.C.R. 229; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Beare, [1988] 2 S.C.R. 387; Walker v. The King, [1939] S.C.R. 214; Marshall v. The Queen, [1961] S.C.R. 123; Comité paritaire de l'industrie de la chemise v. Potash, [1994] 2 S.C.R. 406; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; R. v. Plant, [1993] 3 S.C.R. 281; Shapiro v. United States, 335 U.S. 1 (1948); California v. Byers, 402 U.S. 424 (1971); R. v. Spyker (1990), 63 C.C.C. (3d) 125.
Statutes and Regulations Cited
British Columbia Fishery (General) Regulations, SOR/84‑248, s. 10(1) [rep. & sub. SOR/91‑77].
Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 11(c), (d), 13, 24(1).
Constitution of the United States, Fifth Amendment.
Fisheries Act, R.S.C., 1985, c. F‑14 [am. 1991, c. 1], ss. 61, 63, 78(b).
Authors Cited
Saltzburg, Stephen A. "The Required Records Doctrine: Its Lessons for the Privilege Against Self‑Incrimination" (1986), 53 U. Chi. L. Rev. 6.
APPEAL from a judgment of the British Columbia Court of Appeal (1994), 90 C.C.C. (3d) 161, 32 C.R. (4th) 343, 22 C.R.R. (2d) 289, 46 B.C.A.C. 81, 75 W.A.C. 81, allowing the Crown's appeal from the accused's acquittal on three counts of catching and retaining fish in excess of quota, and ordering a new trial. Appeal dismissed.
Murray L. Smith and Arthur M. Grant, for the appellant.
James D. Bissell, Q.C., and Kenneth J. Yule, for the respondent.
Michel Y. Hélie, for the intervener the Attorney General for Ontario.
Monique Rousseau and Gilles Laporte, for the intervener the Attorney General of Quebec.
The judgment of the Court was delivered by
1 La Forest J. -- This case raises the issue of whether statutorily required fishing logs and hail reports, stating the size and location of a catch, may be used as evidence in the regulatory prosecution of fishers for overfishing under the Fisheries Act, R.S.C., 1985, c. F-14. More specifically, does the use of these statutorily compelled documents at trial violate ss. 7, 11(c) and 11(d) of the Canadian Charter of Rights and Freedoms as being inconsistent with the principle against self-incrimination? If so, can the use of these documents be justified under s. 1 of the Charter?
I. Facts
2 The facts are straightforward. The appellant, Brendon Fitzpatrick, is a commercial fisher who at all relevant times was the captain of a vessel engaged in a licensed and regulated commercial groundfish fishery in British Columbia under the Fisheries Act. On November 8, 1991, the appellant was charged with three counts of offences under s. 78(b) of the Act for catching and retaining canary rockfish, silvergrey rockfish and pacific ocean perch in excess of the fixed quota, contrary to s. 10(1) of the British Columbia Fishery (General) Regulations, SOR/84-248, as amended by SOR/91-77.
3 At trial, the Crown sought to admit two pieces of evidence relevant to this appeal. The first was a "hail report", required to be called in to Department of Fisheries and Oceans officials shortly before a vessel lands. This oral hail report is then reduced to writing by officials in a "groundfish hail report", which reports the estimated poundage of the catch by species, and the date, time and place of landing. The second piece of evidence sought to be introduced by the Crown was a "daily fishing log", issued by the Department of Fisheries and Oceans, in which the fisher must include information concerning the estimated catch (in pounds) of each species of fish and the date, time and location of the haul. After landing, the fisher is required to forward his daily fishing logs to the Department of Fisheries and Oceans.
4 All fishers are required to provide both a hail report and a daily fishing log by virtue of s. 61 of the Fisheries Act. Failure to do so may, by virtue of s. 78 of the Fisheries Act, result in a fine or, in the case of a second or subsequent offence, imprisonment, or both. At trial, Mr. Segelken, a fisheries officer employed by the Department of Fisheries and Oceans, testified that the principal purpose of the requirement that fishers make hail reports and fishing logs is to allow the Department to manage the commercial fishery along the west coast of British Columbia efficiently by monitoring exactly where pressure is developing on fish stocks and by instantaneously adjusting the quota.
5 Mr. Segelken explained how the applicable fishing quotas are detailed annually in a "Pacific Groundfish Trawl Management Plan", which fixes fishing limits for the coming year for each species of groundfish in each fishing area, based on recommendations made by the Pacific Biological Station. The plan is reviewed by a Groundfish Advisory Committee, composed of Fisheries Department officials, fishers, and representatives of the fishing industry. The annual quotas established in the plan are subdivided into quotas for each quarter; they are then varied from time to time over the course of the year as the fishing season progresses. A copy of the Plan itself is sent to all those active in the fishery, and changes to the Plan are advertised by means of Fisheries Public Notices posted in or around the relevant fishing areas. Hail reports and fishing logs prepared by those engaged in the fishery are used routinely by fisheries officials to assist in the appropriate variation of the quotas set under the Plan.
6 Counsel for the appellant objected at trial to the admission of the hail report and fishing logs on the ground that they were self-incriminatory and that their admission would infringe the appellant's rights under s. 7 of the Charter. The Crown called no further evidence and an acquittal was entered on a motion of no evidence. The Crown appealed to the Court of Appeal. A majority of the Court of Appeal allowed the appeal, set aside the acquittal, and ordered a new trial, Wood J.A. dissenting: (1994), 90 C.C.C. (3d) 161, 32 C.R. (4th) 343, 22 C.R.R. (2d) 289, 46 B.C.A.C. 81, 75 W.A.C. 81.
II. Judgments of the Courts Below
Provincial Court
7 The trial judge, Doherty Prov. Ct. J., excluded the hail report and fishing logs on the grounds that they were self-incriminatory and that their admission would violate the appellant's rights under s. 7 of the Charter. He was bound, he stated, by the authority of R. v. Spyker (1990), 63 C.C.C. (3d) 125 (B.C.S.C.), where Shaw J. had decided that the Crown at a criminal trial for dangerous driving could not introduce a statutorily compelled statement made by the accused to the Insurance Corporation of B.C. under the Insurance (Motor Vehicle) Act.
Court of Appeal (1994), 90 C.C.C. (3d) 161
Taggart J.A. for the Majority
8 An appeal was launched to the Court of Appeal which allowed the appeal and ordered a new trial, holding that there had been no breach of the appellant's Charter rights. Relying upon this Court's decision in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, Taggart J.A., speaking for the majority, concluded that where statements are compelled under a regulatory regime such as the Fisheries Act, the Crown bears a "reduced evidentiary burden" at trial and may adduce statements such as the hail report and fishing logs. He noted that these statements provide some of the "best evidence as to where, when, and what species were caught" (p. 178).
9 In coming to this conclusion, Taggart J.A. identified the objective behind the Fisheries Act and its regulations as being "to protect the public interest by ensuring so far as possible the continued existence of a viable groundfish fishery" (p. 170). He noted that hail reports and daily fishing logs are essential to the regulatory process because they allow the regulators to determine when, where and for how long each individual vessel has fished in each area, give regulators up-to-date information about the state of fish stocks in the fishing areas, and provide a basis for ascertaining whether individual vessels have exceeded the quotas established annually in the B.C. "Pacific Groundfish Trawl Management Plan". Taggart J.A. observed that "it would take a considerable number of fisheries officers and a small armada of fisheries patrol vessels to maintain the kind of surveillance required to ensure fishers stay within the quotas fixed by the Plan" (p. 177).
10 While holding that the hail reports and fishing logs are statutorily compelled statements, and thus different from the business records made in the ordinary course of business that were seized in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, Taggart J.A. concluded that their admission would not violate s. 7 of the Charter because the documents were made as a result of a requirement of the regulatory process. He emphasized that "[t]hose engaged in the fishery know from the moment they enter the industry they will be subject to the obligations imposed by the Act and Regulations" (p. 177). They take part with the regulators in the preparation of the annual Pacific Groundfish Trawl Management Plan, and are given notice of any changes in quotas during the fishing season by means of the Fisheries Public Notices.
11 Taggart J.A. therefore concluded that no breach of the appellant's rights would occur by admission of the hail report and fishing logs at trial. In the event that there was a breach, he held that it could be justified under s. 1 of the Charter.
Wood J.A. in Dissent
12 Wood J.A. would have dismissed the appeal on the ground that to conscript an accused against himself, by admitting in evidence "admissions" made by him under compulsion of a regulatory statute, would violate his right to a fair trial under ss. 7 and 11(d) of the Charter. He concluded that where the offence alleged carries with it the risk of imprisonment upon conviction, such admissions must be excluded from evidence.
13 Wood J.A. first observed that the Fisheries Act is silent as to both the purposes for which hail reports and fishing logs are required and the use to which they may subsequently be put. The Act, he noted, does not sanction their use as evidence in a prosecution brought against the appellant for violating any provision of the Act. While conceding that the impugned evidence was relevant, Wood J.A. stated that he also believed it should be excluded because it was self-incriminatory. In contrast to the business records seized in Thomson Newspapers, supra, he stated, the admissions contained in the hail report and fishing logs did not exist until the appellant was compelled to disgorge them under s. 61 of the Act. He found that this was a sufficient basis for distinguishing Thomson Newspapers, stressing that there is a fundamental distinction between evidence that is brought into existence by conscripting the accused against himself and evidence that is already in the possession of the accused and for which the accused acts as a "mere conduit" for delivery, such as business records produced in the ordinary course of business. He noted: "The compulsion which is critical to the legal analysis in this case is that which leads to the creation of the alleged `records', not that which requires their simultaneous production to the Department of Fisheries" (p. 183 (emphasis in original)).
14 Declarations compelled under the Fisheries Act are analogous to the testimony required before the Restrictive Trade Practices Commission as a result of an order made under s. 17 of the Combines Investigation Act, Wood J.A. held. Both result in the creation of evidence that would not otherwise have existed and which, if subsequently used in a prosecution against the person so compelled, will result in that person being conscripted against himself. Since a majority of the justices writing in Thomson Newspapers held that the residual protection against self-incrimination under s. 7 of the Charter extends at least to "use immunity" for pre-trial compelled testimony, the statutory declarations made in the present case had similarly been excluded at trial.
15 Wood J.A. then decided that there is no difference in principle between the s. 7 protection against self-incrimination accorded in the criminal context and that accorded in the context of regulatory offences carrying the risk of imprisonment upon conviction. Wood J.A. held that the effect of the Crown's interpretation and application of Wholesale Travel, supra, was "virtually to suspend application of the principles of fundamental justice in any prosecution of a regulatory offence" (p. 188). According to Thomson Newspapers, use immunity was to be provided under s. 7 for compelled self-incriminatory statements in both contexts, and Wholesale Travel should not be understood to overrule that decision.
16 The principles of fundamental justice, Wood J.A. stressed, should apply particularly when the regulatory offence in question entails a potential sanction of imprisonment. To deprive a person of his liberty is "[t]he most awesome power the state has over the individual", he stated, and "[t]he fact that regulation is so all pervasive in modern society, as Cory J. describes at such length in his reasons in Wholesale Travel, is the very reason why imprisonment should not be imposed for regulatory offences without full regard for the principles of fundamental justice" (p. 192). These principles required that the impugned evidence not be admitted at trial.
17 Finally, Wood J.A. was of the view that s. 1 of the Charter could not be employed to allow for the admission of the hail report and fishing logs since that evidence was introduced solely through the exercise of Crown discretion, and there was therefore not a "limit prescribed by law" that could be said to infringe a constitutional right in this case. Consequently, he held that the trial judge was correct in excluding the disputed evidence under s. 24(1) of the Charter.
III. Analysis
18 The appellant's principal argument before us was that the trial judge properly excluded the hail report and daily fishing logs as evidence at trial, on the ground that this information was self-incriminatory. Under s. 61 of the Fisheries Act, and the related regulations, every fisher is required to submit hail reports and fishing logs to the Department of Fisheries and Oceans. A fisher who fails to do so may be charged with an indictable offence and may thereby be liable, under s. 78(b) of the Act, to a fine for a first offence, and a fine or a maximum term of two years imprisonment for any subsequent offence. On this basis, the appellant argued that the hail report and fishing logs were not voluntary statements and that, if the Crown were permitted to use them in evidence against him, he would be conscripted by the state to furnish evidence against himself in a criminal trial. This, he claimed, would constitute a violation of his Charter rights.
19 The appellant relied on ss. 7, 11(c), 11(d) of the Charter. In what follows, I shall consider the matter only under s. 7. I do not believe that s. 11(c) is raised on the facts, since the appellant has not been "compelled to be a witness in proceedings against that person in respect of the offence" as that section requires. As for s. 11(d), which protects the presumption of innocence and the right to a fair trial, it has elsewhere been held that in a context like the present this section provides effectively the same protection as s. 7; see my comments in Thomson Newspapers, supra, at p. 546, endorsed by Iacobucci J. in R. v. S. (R.J.), [1995] 1 S.C.R. 451, at pp. 561-62. Under these circumstances, I shall pursue the analysis of the principle against self-incrimination under s. 7 of the Charter, upon which the appellant, in any event, principally relied.
20 The appellant does not challenge the compulsion of information under s. 61 of the Fisheries Act. He has not attacked the constitutionality of this provision. Instead, he challenges the use sought to be made at trial of the compelled information legitimately acquired under s. 61. In this way, his challenge is to the procedure adopted by the state under the Fisheries Act, rather than to the substantive content, or objectives, of the legislation. There can be no doubt that the appellant's liberty interest under s. 7 of the Charter is engaged by the Crown's use of the statutorily compelled information, for, as this is his second overfishing offence, he faces the potential of imprisonment under s. 78 if he is convicted, and this Court has repeatedly stated that the threat of imprisonment engages s. 7 of the Charter; see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, and R. v. Vaillancourt, [1987] 2 S.C.R. 636. The question therefore becomes whether this effect on the appellant's liberty interest is consistent with the principles of fundamental justice.
A. The Appropriate Analytic Approach
21 The appellant effectively asks this Court to endorse a broad, abstract principle against self-incrimination as a principle of fundamental justice under s. 7, which would prevent the use of information in all contexts in which it is statutorily compelled. He suggests that this principle is supported by this Court's decisions in both Thomson Newspapers, supra, and S. (R.J.), supra. Nowhere in the case law, however, is there support for such a broad, abstract approach to the issue of self-incrimination. It is true that in Thomson Newspapers, supra, several of the judges accepted that there is some protection against self-incrimination under s. 7 for those compelled to testify at a regulatory investigation. But it must be stressed that the protection there accorded under s. 7 was viewed as residual, designed to provide certain additional safeguards against self-incrimination beyond those accorded by ss. 11(c) and 13 of the Charter. Thomson Newspapers should certainly not be understood to stand for the proposition that s. 7 is violated every time the state seeks to rely on compelled information. Indeed in that case, at p. 538, I specifically stated that
one should not automatically accept that s. 7 comprises a broad right against self-incrimination on an abstract level or, for that matter, on the American model, complete with all its residual doctrines. If that had been intended, it would have been very easy to say so. That is not what the Charter does, and the Charter must be read in its own terms. Accordingly, while I am prepared to accept that s. 7 can protect the individual from fundamental unfairness arising out of self-incriminatory statements in circumstances not covered by ss. 11(c) and 13, an assessment of what this means must be made in accordance with the spirit of those provisions.
22 A similar approach was taken by Iacobucci J. in his reasons for a majority of this Court in S. (R.J.), supra. In that case, he engaged in a scholarly and detailed review of the history of protections against self-incrimination, both at common law and under the Charter, as well as of the policy justification for these protections. In line with the reasons of the Chief Justice in both R. v. P. (M.B.), [1994] 1 S.C.R. 555, and R. v. Jones, [1994] 2 S.C.R. 229, Iacobucci J. accepted that there is a "principle against self-incrimination" that exists as a principle of fundamental justice under s. 7 of the Charter. Nowhere, however, did he suggest that this principle is absolute. Indeed, he thought it proper to emphasize, at p. 514, "that the framers of the Charter did not draft a free-standing right against self-incrimination". Instead of approaching the case before him in an abstract manner, Iacobucci J. was careful to tailor the application of the principle against self-incrimination to the specific factual circumstances of the case, where an individual sought to be protected against testifying as a witness at the trial of his co-accused. Iacobucci J. concluded that the principle against self-incrimination does not in most instances prevent the statutory compulsion of a witness to testify at the trial of his co-accused, provided that certain immunities are given to the witness respecting the later use of his testimony at his own criminal prosecution.
23 In British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3, the Court took a similar approach to the issue of self-incrimination. Referring again to the principle against self-incrimination under s. 7, Sopinka and Iacobucci JJ., writing for the majority, were careful to restrict the application of the principle to the specific circumstances of that case. Branch raised the question of whether or not testimony could be compelled during the course of a securities investigation. The Court held that in most cases individuals can be compelled to testify at such an investigation, as long as they are provided with immunity at any future criminal prosecution against the use of both their testimony and any evidence that would not have been found "but for" this testimony.
24 Nowhere in either S. (R.J.) or Branch is it stated that s. 7 of the Charter precludes the use of all statutorily compelled information at all times. Nor did either of those cases decide the issue respecting the use of compelled self-reporting documents in a regulatory prosecution that confronts us here. In Branch, the question of documentary, as well as testimonial, compellability was raised. All members of the Court concluded that the compelled production of documents during a securities investigation did not violate s. 7, once it was found that the person who had been subpoenaed to produce the documents was already compellable to testify in the investigation. The Court specifically refrained from commenting on the situation raised in the present case. It was noted in Branch that the documents compelled were not documents that existed by virtue of a statutory compulsion, but were instead pre-existing documents (of the kind considered by this Court under s. 8 of the Charter in Thomson Newspapers). It was specifically stated that the degree of s. 7 protection that would extend to documents created as a result of statutory compulsion was a matter to be left to subsequent cases; see the reasons of Sopinka and Iacobucci JJ., at pp. 33-34, and those of L'Heureux-Dubé J., at p. 58.
25 The issue in this case has, therefore, never been squarely raised before this Court. Our task is to determine what the principles of fundamental justice require in the context of this appeal, which involves a self-reporting requirement in the regulatory sphere. In doing so, I do not find it helpful to start, as it seems to me both the appellant and Wood J.A. did, with a broad and abstract statement about the absolute requirements of the principles of fundamental justice, or in particular of the principle against self-incrimination. As Iacobucci J. stated in S. (R.J.), supra, at p. 512, we should not expect that the manifestations of the principle against self-incrimination will have any "pre-defined scope". Instead, we must begin "on the ground", as it were, with a concrete and contextual analysis of the circumstances raised before us, and the ways in which concerns about self-incrimination may or may not be legitimate. In this way, we will be able to determine whether or not the principle against self-incrimination is actually engaged in the present case.
26 In this endeavour, we are guided by the approach to self-incrimination adopted by the Court in Thomson Newspapers, S. (R.J.) and Branch, as well as by the more general, holistic approach to Charter s. 7 interpretation set forth in cases like Re B.C. Motor Vehicle Act, supra, and R. v. Lyons, [1987] 2 S.C.R. 309. In Re B.C. Motor Vehicle Act, at p. 503, Lamer J., as he then was, indicated that the principles of fundamental justice "are to be found in the basic tenets of our legal system". To determine the content of these "basic tenets" in any given circumstance, we must have regard to "the applicable principles and policies that have animated legislative and judicial practice in the field"; see for example my comments in Thomson Newspapers, supra, at p. 539, as well as in Lyons, supra, at p. 327, and R. v. Beare, [1988] 2 S.C.R. 387, at pp. 402-3.
27 It is important to remember that the legislative and judicial "principles and policies" that have so far defined the protections granted against self-incrimination have, as is true in other areas, sought to achieve a contextual balance between the interests of the individual and those of society. In my view, this balancing is crucial in determining whether or not a particular law, or in the present case state action, is inconsistent with the principles of fundamental justice. This is all the more apparent in the instant case, where the appellant challenges a regulatory procedure ‑‑ the use of hail reports and fishing logs ‑‑ designed (and employed) in the public interest. In evaluating the constitutionality of this procedure, we must be careful to keep the interests of both the individual and society in mind.
28 The balance thus far achieved is reflected in the common law. Though it is not, of course, determinative of rights guaranteed under s. 7, the common law, as the present Chief Justice has reminded us in Re B.C. Motor Vehicle Act, does give us a valuable indication of what is just and fair in the circumstances. At common law, the information compelled from the appellant in this case would have been admissible; see Walker v. The King, [1939] S.C.R. 214, and Marshall v. The Queen, [1961] S.C.R. 123. In Marshall, at p. 129, Cartwright J. stated that it had long been a settled principle of law that "statements made under compulsion of a statute are not by reason of that fact alone rendered inadmissible in criminal proceedings against the person making them". While this goes some way towards establishing what the principles of fundamental justice require, I think it necessary to enter upon a contextual analysis to determine whether the rule adopted at common law in balancing the relevant policies remains appropriate, and so meets the requirements of the principles of fundamental justice.
B. The Context
29 At issue in this case is the ability of the government to enforce important regulatory objectives relating to the conservation and management of the groundfish fishery. To suggest that s. 7 of the Charter protects individuals who voluntary participate in this fishery from being "conscripted" against themselves, by having information used against them that they were knowingly required to provide as a condition of obtaining their fishing licences, would in my view be to overshoot the purposes of the Charter. The right against self-incrimination has never yet been extended that far; nor should it be. The Charter was not meant to tie the hands of the regulatory state.
30 In determining the ambit of the principle against self-incrimination in this case, it is important to consider the context in which the appellant's claim arises. This Court has often stated that the context of a Charter claim is crucial in determining the extent of the right asserted; see for example my comments in Lyons, supra, at p. 361, and in Thomson Newspapers, supra, at pp. 505-8 and 516-17. In particular, in Wholesale Travel, supra, at p. 226, Cory J. held that "a Charter right may have different scope and implications in a regulatory context than in a truly criminal one", and that "constitutional standards developed in the criminal context cannot be applied automatically to regulatory offences". These comments must be borne in mind in approaching the appellant's claims, for it is made in the context of a detailed regulatory regime that governs state conservation and management of the fishery. In this regulatory environment, we must be careful to avoid automatically applying rules that have been developed respecting self-incrimination in the criminal sphere.
31 The importance of a contextual analysis in considering the principle against self-incrimination has been underlined by the Chief Justice in Jones, supra, at p. 249. He there observed that this principle is "a general organizing principle of criminal law from which particular rules can be derived (for example, rules about non-compellability of the accused and admissibility of confessions)". The rules that flow from the application of this "general organizing principle" will vary with the circumstances. It is therefore important to focus on these circumstances each time a new application of the principle against self-incrimination is considered. Iacobucci J., we saw, was mindful of this in S. (R.J.), supra. At page 513, he stated:
. . . I have suggested above that certain specific enumerations of the Charter reflect a unifying principle against self-incrimination. It stands only to reason, however, that this principle may demand different things at different times; the parameters of the principle may be found in disparate rights.
32 In my view, there are several reasons why the general principle against self-incrimination, as applied in the regulatory context of the present case, does not require the appellant to be granted immunity against the use by the Crown of his statutorily compelled hail report and fishing logs. His rights under s. 7 of the Charter simply do not extend that far.
C. The Principle Against Self-Incrimination
33 The parameters of the general principle against self-incrimination were succinctly described by the Chief Justice in Jones, supra. Although the Chief Justice was there speaking in dissent, his analysis of the principle against self-incrimination was endorsed by Iacobucci J. for a majority of the Court in S. (R.J.), and must, accordingly, be considered authoritative. In Jones, the Chief Justice wrote (at p. 249):
Any state action that coerces an individual to furnish evidence against him- or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent.
34 In applying this definition to the present case, two things should be immediately apparent. First, the information provided in this case was not provided "in a proceeding in which the individual and the state are adversaries". Instead, it was provided in response to a reasonable regulatory requirement relating to fishery management. Second, the "coercion" imposed on the appellant is at best indirect, for it arose only after he had made a conscious choice to participate in a regulated area, with its attendant obligations. In what follows, I shall address each of these issues in turn.
(1) Lack of Adversarial Relationship
35 The requirement under s. 61 of the Fisheries Act that fishers complete hail reports and fishing logs (or "true returns") is an important component of the regulatory regime for fisheries management and conservation established under the Act. The essential purpose of this requirement is not to accumulate information that can later be used against the fishers who supply it. It is not compiled during the course of any investigation into wrongdoing. Instead, the purpose of the self-reporting obligation is to provide fisheries officials with up-to-date information necessary for the effective regulation of the fishery. The establishment of quotas depends on accurate information about the size of catches, as well as about their particular location, and the fishers themselves are in the best position to provide this information. Enforcement of the quotas, in turn, is of benefit to commercial fishers as a group, for it ensures the continuing survival of the fishery and the fair distribution of its profits, which provide commercial fishers with their employment and income.
36 The situation presented here is, therefore, fundamentally different from that considered in S. (R.J.), where a co-accused was compelled to testify at his colleague's criminal trial, and in both Thomson Newspapers and Branch, where individuals engaging in certain businesses were compelled to testify at an investigation into wrongdoing in their industry. In each of those situations, the individuals being compelled to give information were in an adversarial, or at least an inquisitorial, relationship with the state, and the principle against self-incrimination was engaged as indicated by Lamer C.J. in Jones. Certain protections were therefore necessary respecting the use of the compelled information in order to comply with the Charter. In the present case, by contrast, individuals like the appellant who are compelled to furnish hail reports and fishing logs are not in an adversarial or even inquisitorial relationship with the state at the time they provide this information. Indeed, far from being "adversaries", the individual and the state are in fact partners, joined together in the need (1) to protect the fishery as a valuable resource through conservation measures, and (2) to fairly allocate the fish that do exist between all those who seek to have access to them. The valuable objectives served by s. 61 of the Fisheries Act are of benefit to the very individuals who are bound by the section's requirements. In my view, the lack of adversarial relationship between the individual and the state at the time the hail reports and fishing logs are statutorily compelled is an important basis upon which to conclude that the principle against self-incrimination is not engaged in this case.
(2) Lack of Coercion
37 Even more important, however, is the fact that the "coercion" exercised by the state here is, to say the least, muted. This is a far cry from the facts in S. (R.J.), Branch and Thomson Newspapers, where individuals were subpoenaed to testify on pain of contempt, without any choice in the matter. It is true that once an individual decides to participate in the groundfish fishery, and accepts his licence, he is thereafter "compelled" to submit hail reports and fishing logs in accordance with the dictates of s. 61 of the Fisheries Act. But this is not an obligation imposed upon a fisher through "the denial of free and informed consent", in the terms suggested by the Chief Justice in Jones, supra, at p. 249. In fact, free and informed consent is the essence of the relationship between the state and the individual in this context.
38 No one is compelled to participate in the groundfish fishery; they do so purely as the result of their own free decision. Having decided to participate, they are then informed in great detail about all the obligations that attach to their participation in the industry. They receive a copy of the Pacific Groundfish Trawl Management Plan, which details the quotas established for certain species of fish in designated areas. Some fishers are even involved in the determination of appropriate quotas under the Plan. The Plan includes a warning that the quotas established under it will be subject to variation as the fishing season progresses. It informs fishers that these variations will be publicized by Fisheries Public Notices, telexed Notices to the Industry, or Canadian Coast Guard radio broadcasts. It urges them to contact the Department of Fisheries and Oceans prior to fishing to determine what orders are in effect, and to refer to Fisheries Public Notices posted throughout the region at local fishery offices. As an appendix to the Plan, fishers are provided with a letter detailing the requirement for "true returns" under s. 61 of the Fisheries Act, including both hail reports and fishing logs.
39 The appellant here has not entered the commercial fishery with his eyes closed. He must be presumed to be aware of the terms and conditions of the vessel's fishing licence, which include the submission of hail reports and fishing logs. (As noted by Taggart J.A. in the court below, there is a clause in the standard form commercial fishing licence, above the place for the signature of the vessel owner/operator, that provides that the undersigned understands that he or she is obliged, as a condition of the licence "to furnish accurate catch records in such manner and to such persons as the Fisheries Act and regulations may stipulate", and that otherwise the fishing licence may be cancelled or suspended.) The appellant must be presumed to be aware of the Groundfish Management Plan, which accompanies the fishing licence, and provides that the amount of fish he is allowed to catch is governed by quotas. He knows these quotas are subject to variation, publicized by means of Fisheries Public Notices, and he also knows that he is prohibited from taking more fish than is permitted under the quota. When he does so, can it be said that it will be a matter of surprise to him that the Crown seeks to rely on his own hail report and fishing logs in order to prosecute him? Did he not realize in submitting this report and these logs that this might be one of their uses?
40 In making this point, I rely on a form of the "licensing argument" discussed by Cory J. in Wholesale Travel, supra. There, Cory J. identified this argument as one rationale for subjecting the fault requirement of regulatory offences to a lower standard of Charter scrutiny than that of "true crimes". The licensing argument postulates that regulated actors entering a licensed field should be presumed to know of, and to have accepted, the terms and conditions relevant to the regulated area, and should therefore be held liable for breaching these terms and conditions. At page 229 of his judgment in Wholesale Travel, Cory J. described the licensing argument as follows:
The licensing concept rests on the view that those who choose to participate in regulated activities have, in doing so, placed themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility. Therefore, it is said, those who engage in regulated activity should, as part of the burden of responsible conduct attending participation in the regulated field, be deemed to have accepted certain terms and conditions applicable to those who act within the regulated sphere. Foremost among these implied terms is an undertaking that the conduct of the regulated actor will comply with and maintain a certain minimum standard of care.
The licensing justification is based not only on the idea of a conscious choice being made to enter a regulated field but also on the concept of control. The concept is that those persons who enter a regulated field are in the best position to control the harm which may result, and that they should therefore be held responsible for it.
Later, at pp. 239-40, he continued on the same theme:
The regulated actor is allowed to engage in activity which potentially may cause harm to the public. That permission is granted on the understanding that the actor accept, as a condition of entering the regulated field, the responsibility to exercise reasonable care to ensure that the proscribed harm does not come about. As a result of choosing to enter a field of activity known to be regulated, the regulated actor is taken to be aware of and to have accepted the imposition of a certain objective standard of conduct as a pre-condition to being allowed to engage in the regulated activity.
41 Though the present case does not raise the issue of fault requirements under the Charter, Cory J.'s comments respecting the licensing argument in Wholesale Travel are, as I see it, equally relevant to the analysis of the principle against self-incrimination in the present case. Indeed this case would seem to present us with a paradigmatic example of a licensing scheme, in that the appellant literally cannot participate in the commercial fishery without a licence. In accepting his licence, he must accept the terms and conditions associated with it, which include the completion of hail reports and fishing logs, and the prosecution of those who overfish. To the extent that the appellant believes himself to be compelled "against his will" to produce hail reports and fishing logs, lest they one day be used against him in a prosecution for overfishing, he is free to resign from the commercial fishery, and thereby to be released from this obligation.
42 Surely it defies common sense to argue that the state, in seeking to regulate the commercial fishery by attaching certain conditions to a fishing licence, is coercing an individual to furnish information against himself. Quite the opposite in fact is true; the individual is furnishing information that is meant to benefit him or her, through proper and fair distribution of scarce fishing resources. Just because this information may later be used in an adversarial proceeding, when the state seeks to enforce the restrictions necessary to accomplish its regulatory objectives, does not mean that the state is guilty of coercing the individual to incriminate himself. The state required certain information to be provided, and the individual voluntarily assumed the obligation to do so in deciding to become a fisher in the first place. It ill lies in the mouth of someone who knowingly assumes an obligation for a beneficial purpose to argue later that this obligation has the effect of denying him his rights.
D. Rationale Behind the Principle Against Self-Incrimination
43 In Jones, supra, at p. 250, the Chief Justice identified the two fundamental purposes behind the principle against self-incrimination as being: first, to protect against unreliable confessions, and second, to protect against the abuse of power by the state. He further stated, at p. 257, that in his view any limits on the principle against self-incrimination should be determined by reference to these two underlying rationales. I agree. In my view, neither of these two rationales is threatened by allowing the Crown to use hail reports and fishing logs in the prosecution of those who overfish, and this strengthens my conviction that the principle against self-incrimination should be limited in this area.
44 I suggest that the first purpose underlying the principle ‑‑ the need to protect against unreliable confessions ‑‑ is not here determinative. Primarily this is because I do not believe that there has been any "confession" on the facts of this case at all. On the assumption that a true return under s. 61 can be equated to a confession, however, I still do not believe that allowing the use of these returns at trial increases the likelihood of their being falsified. First of all, I would be surprised if there is not already a certain incentive to falsify returns, given that fishers are aware that they must abide by quotas, and may have a desire to appear to be doing so. This dangerous incentive is already combatted by s. 63 of the Act, however, which makes it an offence to file a false return. It does not require application of the principle against self-incrimination. Moreover, it is unclear to me what is proposed as an alternative, were a concern about unreliable returns warranted. Would the system be better if fishers could (honestly) submit hail reports and fishing logs that indicated they had massively overfished under the Act, secure in the knowledge that these returns could not later be used against them? I am not prepared to accept the fear of an increased incentive to falsify returns as a reasonable basis to conclude that the principle against self-incrimination applies to this case.
45 This leaves us to consider the second rationale proposed by the Chief Justice in Jones as underlying the principle against self-incrimination ‑‑ the need to guard against the abuse of power by the state. This concern was reflected in Iacobucci J.'s emphasis in S. (R.J.), supra, on the "case to meet" idea as the unifying thought behind the principle against self-incrimination. This idea proposes that "individuals should be left alone in the absence of justification, and not conscripted by the state to promote a self-defeating purpose" (p. 504). The need to prevent against abusive state conduct is also reflected in the reasons of the Chief Justice, and Sopinka and L'Heureux-Dubé JJ. in S. (R.J.), all of whom sought like Iacobucci J. to define the point at which state conduct in obtaining evidence from an individual becomes offensive under s. 7.
46 In my view, there is little danger of abusive state conduct in this instance, so this rationale for the principle against self-incrimination does not therefore require the principle to be applied here. I cannot see how it can be said to be abusive for the state to prosecute overfishing on the basis of the true returns it requires fishers to fill out as a condition of their voluntary participation in the commercial fishery.
47 In fact, in my view, the alternatives to the self-reporting scheme would run the risk of being far more "abusive" on the part of the state. If the Crown were prohibited from relying on true returns when prosecuting overfishing, other means would have to be devised to meet the state's important fishery conservation and management objectives. As stated by Taggart J.A. in the court below, "it would take a considerable number of fisheries officers and a small armada of fisheries patrol vessels to maintain the kind of surveillance required to ensure fishers stay within the quotas fixed by the Plan" (p. 177). Since what is particularly important in setting quotas is the precise location of the fishing underway, vessels would have to patrol virtually all relevant fishing areas at all times. They would have to be empowered to board fishing vessels and demand to know the size, type and timing of catch. Not only would this be extremely expensive and complicated to administer, it would also be far more invasive of the commercial industry than the current self-reporting requirement.
48 The difficulty and expense of this alternative might in fact make it impractical, leaving the state with no feasible means of enforcing specific quotas in certain fishing areas. It is hard to see how this would be a desirable outcome. Surely most people would think it was abusive on the part of fishers if they could file returns blatantly admitting their overfishing, and then escape prosecution because to use these returns would offend against s. 7 of the Charter. The principle against self-incrimination was never intended to assist individuals in committing regulatory offences, and should not be extended to protect the appellant from prosecution in the present case.
E. Analogy to Business Records Under Section 8
49 My conclusion that it is not abusive for the state to prosecute those who overfish, using their own hail reports and fishing logs as evidence of the offence, is strengthened by reference to this Court's jurisprudence on the application of s. 8 of the Charter in the regulatory context. In applying a contextual approach under s. 8, this Court has repeatedly emphasized that searches and seizures of documents relating to activity known to be regulated by the state are not subject to the same high standard as searches and seizures in the criminal context. This is because a decreased expectation of privacy exists respecting records that are produced during the ordinary course of business; see in particular my reasons in both Thomson Newspapers, supra, at pp. 506-8, and Comité paritaire de l'industrie de la chemise v. Potash, [1994] 2 S.C.R. 406, at pp. 420-21 and 424, as well as those of Wilson J. in R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, at pp. 645-47, L'Heureux-Dubé J. in Comité paritaire, at pp. 443-44, and Sopinka J. in R. v. Plant, [1993] 3 S.C.R. 281, at pp. 291-96. In my view a similar standard should be applied to the use in a regulatory prosecution of records that are statutorily compelled as a condition of participation in the regulatory area. Little expectation of privacy can attach to these documents, since they are produced precisely to be read and relied upon by state officials. Similarly, I do not believe it is inconsistent with the principles of fundamental justice for the Crown to rely upon these documents in a prosecution for overfishing. The documents should not be equated to involuntary confessions to investigators, reflecting as they do instead the voluntary compliance by commercial fishers with the statutory requirements of the regulated fishing regime. The principle against self-incrimination under s. 7 of the Charter should not be understood to elevate all records produced under statutory compulsion to the status of compelled testimony at a criminal or investigative hearing.
50 Both the appellant and Wood J.A. in the court below argued that hail reports and fishing logs are similar to the compelled testimony considered under s. 7 in Thomson Newspapers, supra, because these records are "created" in response to state compulsion, and do not arise from the ordinary (private) course of business, merely to be "located" by the individual. With respect, I do not agree. In my view, hail reports and fishing logs should be seen to constitute the "ordinary" records of those licensed to participate in the groundfish fishery; the fact that these records are statutorily required, and would not exist but for s. 61 of the Act, does not suddenly turn them into compelled testimony of the kind that is taken during an investigation into wrongdoing. Hail reports and fishing logs are required from all commercial fishers and assist in the routine administration of the Fisheries Act, quite apart from any investigation into wrongdoing. They are produced by all the participants in the regulatory sphere, not just by one person in response to a criminal investigation; they are therefore similar to the pre-existing business records considered in Thomson Newspapers.
51 My conclusion on this issue is buttressed by the fact that it cannot be said that using the information contained in hail reports and fishing logs is an affront to individual dignity ‑‑ a fundamental value that underlies so many Charter rights. For these records divulge nothing about the personality of the individual who has created them. The information recorded is of a purely objective kind, and its relevance is limited entirely to a matter of importance only to the management and conservation of the fisheries. The information divulges nothing of the state of mind, thoughts, or opinions of the individual who has submitted the records. Their content is in fact even more limited than that of the business records at issue in Thomson Newspapers, about which I stated, at pp. 517-18:
These records and documents do not normally contain information about one's lifestyle, intimate relations or political or religious opinions. They do not, in short, deal with those aspects of individual identity which the right of privacy is intended to protect from the overbearing influence of the state.
52 Moreover, the requirement to keep records under the Fisheries Act does not impose any psychological or emotional pressures on the individual, and in this way the state intrusion at issue here contrasts sharply with inquisitorial and police interrogatories and testimonial compulsion. These latter do not arise in the ordinary course of business, usually occur after deliberations of wrongdoing are complete, and place the individual in a heightened state of anxiety since the inquisitorial or investigatory procedures of the state are put into operation. Here, in contrast, there is nothing stressful or invasive about responding to a statutory requirement to make hail reports and fishing logs ‑‑ a requirement designed to benefit not only those who comply with it, but also society at large.
F. American Position
53 Before concluding, I should say that the United States Supreme Court seems to have adopted a similar view respecting the application of the Fifth Amendment to records compelled as part of a regulatory scheme. Despite the breadth of the protection against self-incrimination afforded by the Fifth Amendment, the U.S. Supreme Court has not extended the privilege to include documents, or oral reports, the individual is required to keep or make that are reasonably necessary to the fulfilment of a proper government purpose; see Shapiro v. United States, 335 U.S. 1 (1948). This doctrine is known as the "required records" exception to the Fifth Amendment. The U.S. Supreme Court has also thought it proper to emphasize the context in which a self-reporting requirement arises, suggesting that Fifth Amendment protections in the criminal context should not blindly be transported into the regulatory sphere, especially where a self-reporting requirement may be instrumental to the fulfilment of a regulatory purpose; see California v. Byers, 402 U.S. 424 (1971). Some of the benefits of the American approach in this area are outlined in an article by S. A. Saltzburg entitled "The Required Records Doctrine: Its Lessons for the Privilege Against Self-Incrimination" (1986), 53 U. Chi. L. Rev. 6.
IV. Conclusion
54 For all of the above reasons, I conclude that the principles of fundamental justice, and in particular the principle against self-incrimination, do not prevent the Crown from relying on fishing logs and a hail report at the appellant's trial for overfishing simply because these documents are statutorily required. It is not contrary to fundamental justice for an individual to be convicted of a regulatory offence on the basis of a record or return that he or she is required to submit as one of the terms and conditions of his or her participation in the regulatory sphere. In this context, the balance between societal and individual interests under s. 7 of the Charter suggests that the principle against self-incrimination should not be applied as rigidly as it might be in the context of a purely criminal offence. Its realization does not require the appellant to be provided with immunity against the use of statutorily compelled information. There is no need, then, to consider the issue of justification under s. 1.
55 One final matter remains to be dealt with, and that is the rather unusual request by the appellant for one half of his solicitor and client costs. It is sufficient to say that I see no reason to depart from this Court's usual practice in this area, and would make no order as to costs.
V. Disposition
56 I would dismiss the appeal.
Appeal dismissed.
Solicitors for the appellant: Campney & Murphy, Vancouver.
Solicitor for the respondent: George Thomson, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.
Solicitor for the intervener the Attorney General of Quebec: The Department of Justice, Sainte‑Foy.