Workplace Safety And Health Regulatory Inspections Vs. Investigations – Charter Rights And Counsel’s Role

By Jamie Jurczak, Sam Gabor on 2013/04/17

(Written with the assistance of Sam Gabor)

Introduction

In the workplace safety and health context, as with many other regulatory offence statues, a health and safety Inspector will both conduct the regulatory inspection and the investigation into impugned conduct. It can therefore be difficult for the practitioner to determine when the rights and freedoms provided for under the Canadian Charter of Rights and Freedoms apply. When does the right to counsel arise in the context of this regulatory regime? Do our clients have the right to remain silent? When are search warrants required? Can our clients refuse to hand over documents if they appear to be self-incriminating? These are just some of the issues practitioners are left to grapple with within the regulatory regime where there is often a fine line between inspection for the purpose of regulatory enforcement and investigation for the purpose of laying charges.

Where the state is carrying out a regulatory inspection for the purpose of determining compliance with health and safety legislation, the Charter is not generally invoked. However, once the line is crossed into an investigation into conduct that has been determined to have breached the health and safety legislation, the conduct of the corporation may now attract quasi-criminal or penal consequences, thus invoking Charter rights.

Navigating through these issues can often be difficult, given the fine line between inspection and investigation, particularly given the special Charter considerations that apply in the context of regulatory statutes and the prosecution of corporations in that context. Understanding these issues is key in determining the best and most effective way counsel can play a role in advising clients at the various stages of workplace health and safety litigation.

The focus of this paper is to give guidance to the practitioner on understanding the Charter considerations relating to regulatory matters, and the legal distinctions between inspections and investigations, in an effort to provide counsel with a practical understanding of their role in the context of a workplace safety and health inspection.

Charter Considerations in the Regulatory Context

While there appears to be no doubt that the Charter does apply in the quasi-criminal regulatory regime, it has long been held that regulatory charges do not offer the same level of Charter guarantees as “true crimes”. It has been said this is because individuals that are regulated by laws exchange individual rights for state protections.

In R. v. Wholesale Travel Group Inc., the Supreme Court reviewed three principles that led the Court to conclude that Charter scrutiny is less rigorous in the regulatory context, because the social imperatives behind the regulatory offence or offences are accepted as justifying a certain level of intrusion into individual rights. Cory J. framed the issue in this case as “the ability of federal and provincial governments to achieve social ends through the enactment and enforcement of public welfare legislation.”

The three factors cited by Cory J. leading to the conclusion that the Charter analysis for a regulatory offence or an offence with a significant regulatory context differs from the analysis for a purely criminal offence were (1) the licensing justification, (2) the vulnerability justification, and (3) the fault distinction.

The licensing justification refers to the concept that by choosing to participate in a regulated activity, the participant is presumed to know and accept the responsibilities that attach to that participation, which includes an implied acknowledgment of the rules and regulations that accompany involvement in a regulated activity.

The vulnerability justification considers the intrinsic nature of regulatory legislation as being protective and seeking to create a safer environment. Again, there is an implicit understanding that the protection awarded through regulation comes at a price of reduced liberties.

The third aspect is the fault requirement. Cory J. drew a distinction between the fault requirement in a pure crime offence and a regulatory offence, in that a regulatory offence is connected to a failure to meet expected standards. The concern is not so much with the nature of the prohibited conduct, but rather that the conduct, if left unchecked, could lead to unsafe conditions for society. From this premise, Justice Cory concluded that the stigma resulting from the two types of offences is very different. In his view, a conviction for a regulatory offence often “suggests nothing more than that the defendant has failed to meet a prescribed standard of care.”

These issues were further explored by the Supreme Court in R v. Fitzpatrick. . The appellant in Fitzpatrick was a licensed and regulated fisherman in British Columbia. He was charged with catching and retaining fish in excess of a statutory quota. The main pieces of evidence were fishing logs and fail reports. It was the statutory duty of a fisherman to correctly record on the logs and reports the amount of catch attained after each fishing venture. The trial judge excluded the logs and reports because they were self-incriminating to the appellant and violated his section 7 Charter right. The Crown appealed, arguing that there was no Charter violation. In determining that the compelled logs and reports were not self-incriminating, the Court reviewed the case contextually, commenting that regulatory offences maintain lower Charter standards than criminal proceedings. Thus in a regulatory context, section 7 of the Charter is not violated if the state seeks to rely on compelled information.

The Court stated that statutory regulations are created to balance the needs of society and individuals, and consequently, section 7 should not be read so rigidly, so that every time statutorily compelled information is required in a regulatory investigation, an individual could claim the information is self-incriminating. In this case, the purpose of the logs and reports were to protect society from over fishing. The Court ruled that it was not in the best interest of society to allow regulatory offenders to use the Charter as a shield from remitting the logs and reports, and that the Charter should not be used to “tie the hands” of the regulatory state:

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.

At issue in this case is the ability of the government to enforce important regulatory objectives relating to the conservation and management of the ground fish 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 licenses, 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.

Finally, the Court stated that the context of the Charter claim is critical to determine if a violation has occurred; a case by case determination should be made:

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.

The Court also further stated that the Charter should apply more stringently when the individual and the state are adversaries. At paragraph 34 the Court quoted from R v. Jones stating:

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.

Applying the adversarial definition used in Jones to the context of the proceedings, being the case of fishermen being regulated by statute, the Court determined that the individual and government are not “adversaries”, but partners that are conserving valuable resources, and that there is no coercion of fisherman by the government because a license is required for fishermen to fish. Consequently, to attain a license, a fisherman is compelled to remit fishing logs and reports. The Court relied on the licensing argument as enunciated by Cory J. in Wholesale Travel Group as the basis to deny an adversarial relationship in Fitzpatrick:

Cory J. (in Wholesale Travel, supra) 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.

…In accepting his license, 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.

…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…

Finally the Court held that section 8 of the Charter will not entail as high a standard for search and seizure of documents in the regulatory sphere as in the criminal 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…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.

The issue of the differing standard with respect to the application of the Charter in regulatory matters was discussed in the case of R. v. Jarvis , which addressed the issue of how to determine whether an inspector is conducting a regulatory inspection or an investigation into behavior that may attract quasi-criminal or penal consequences, thus attracting enhanced Charter rights, and will be discussed in the next section of this paper.

Inspection or Investigation? The Legal Distinction

What is evident from Fitzpatrick is that Charter rights will only be invoked if the regulatory inspection crosses the line into an investigation that may draw penal consequences, which the Court noted was at the point the process becomes “adversarial” in nature. However, at what point does one determine when this line has been crossed?

The Ontario Court of Appeal explored this issue in R v. Inco Limited , a case involving contamination under the Ontario Water Resources Act (“OWRA”) . Inco operated a nickel mine and treated water from the mine to prevent contamination of local sources. After a cold winter, thaw emerged and water discharge escaped outside the treatment area, causing contamination. Inco reported the contamination and an Investigation and Enforcement Officer was called onto the scene. The Officer contacted senior Inco employees, including its in-house council, and eventually interviewed the employees in the presence of the in-house counsel. At the beginning of each interview, the employees counsel objected to the interviews, but stated the employees would cooperate because they were statutorily obligated. The interviews were taped, which was also objected to by the in-house counsel. Charges were eventually laid against Inco.

Inco argued that the Officer had no statutory authority to compel Inco employees to submit to questioning. Inco argued that the Officer already had reasonable grounds to believe an offense had been committed and charges were to be laid, and therefore the Officer improperly used the inspection power under s. 15 of the OWRA to build a case for prosecution, by compelling statements and seizing documents with a reasonable belief that a crime had been committed and without a warrant or a laying of charges. Inco argued their Charter rights had been violated, namely: the compulsory questioning sessions infringed the employees’ rights to silence and fair treatment under s. 7; the compulsory gathering of documents and information infringed their s. 8 rights; their detention was contrary to s. 9; and they were not afforded their s. 10(b) right to silence. Inco’s position is that the IEB Officer’s conduct constituted an abuse of process for which a stay of proceedings must be granted.

The Court determined that Inco’s Charter claims had no standing. The claims were not raised out of the public interest and did not attack the constitutionality of the legislation. The only real issue was whether the Officer overstepped his statutory powers when he entered Inco’s premises. The Court ordered a new trial to determine if the Officer had reasonable and probable grounds that an offence had occurred.

In reaching this conclusion, the Court examined the distinction between regulatory searches and inspections that could lead to charges for a regulatory offence, in the context of determining when the situation became adversarial in nature. The Supreme Court relied on La Forest J.’s ruling in Comite paritaire de l’industrie de la chemise v. Potash; Comite paritaire de l’industrie de la chemise v. Selection Milton, to determine whether a statutory power of inspection violated section 8 of the Charter. The Court held that Comite paritaire stood for the principle that when there is a reasonable and probable ground to believe a regulatory offence occurred, the Hunter v. Southam principles regarding warrantless searches must be met. However, the Court also noted that in Hunter v. Southam, a warrantless search may nevertheless be reasonable where the appropriate balance is struck between the right of an individual to be left alone and the state’s interest in furthering a legitimate end. In that regard, the Court noted that in the regulatory context, a determination must be made between whether there has been a regulatory inspection or a search that may lead to charges, as that may impact this analysis:

La Forest J. (in Comite paritaire, supra) held that the scope of the constitutional guarantee afforded by s. 8 may vary depending on whether a search or inspection is involved. At p. 417, he adopted the following passage distinguishing an inspection from a search:

[TRANSLATION] An inspection is characterized by a visit to determine whether there is compliance with a given statute. The basic intent is not to uncover a breach of the Act: the purpose is rather to protect the public. On the other hand, if the inspector enters the establishment because he has reasonable grounds to believe that there has been a breach of the Act, this is no longer an inspection but a search, as the intent is then essentially to see if those reasonable grounds are justified and to seize anything which may serve as proof of the offence.

La Forest J. accepted that the underlying purpose of an inspection is to ensure compliance with a regulatory statute……

…the purpose of an inspection provision in the regulatory context is to permit inspectors to determine whether an offence has been committed. According to L’Heureux-Dubé J. at p. 453: “[i]t is of the very nature of an administrative inspection in a regulated industry that it takes place when there are no reasonable grounds to believe that a particular offence has been committed”.

The Supreme Court of Canada took the analysis further in R. v. Jarvis. Jarvis further addressed the issue of the distinction between regulatory inspections and investigations into behavior that may attract quasi-criminal or penal consequences, and the extent to which the “adversarial” definition was key to the determination as to whether the circumstances would invoke Charter rights.

In Jarvis, the Supreme Court reviewed the Canada Customs and Revenue Agency’s (“CCRA”) use of its audit and investigative functions under the Income Tax Act , and whether compliance audits were in fact investigations. If the audits were determined to be investigations, then any compelled testimony or seizure of documents would have violated the accused’s section 8 Charter rights. In holding that the auditors performed their duties within their statutory powers, and that all of the gathered documents and received testimony were attained during audits and not during investigations into criminal chargers, the Supreme Court addressed the issues of the difference between the two functions and what rights flowed to the individual in the case of an inspection vs. an investigation.

The Supreme Court found that there was a difference between the audit function (the inspection stage to gather information to make an assessment) and the investigative stage (to determine penal consequences), and making this determination was necessary in order to determine whether Charter rights may be invoked.

In that regard, the Court considered the adversarial definition, and held that the taxpayer-CCRA relationship was a more traditional adversarial relationship, thus the Charter should be applied more stringently when tax evasion is believed to have occurred:

While taxpayers are statutorily bound to cooperate with CCRA auditors for tax assessment purposes (which may result in the application of regulatory penalties), there is an adversarial relationship that crystallizes between the taxpayer and the tax officials when the predominant purpose of an official’s inquiry is the determination of penal liability. When the officials exercise this authority, constitutional protections against self-incrimination prohibit CCRA officials who are investigating ITA offences from having recourse to the powerful inspection and requirement tools in ss. 231.1(1) and 231.2(1). Rather, CCRA officials who exercise the authority to conduct such investigations must seek search warrants in furtherance of their investigation.

Finding that there was a difference between the audit function and the investigative function, and the application of the Charter to each, the Supreme Court went on to discuss how one was to determine when the audit function became the investigative function, so as to attract enhanced Charter rights. The Court stated the test to determine the difference between an audit and an investigation is grounded on the “predominant purpose” of the inquiry:

In our view, where the predominant purpose of a particular inquiry is the determination of penal liability, CCRA officials must relinquish the authority to use the inspection and requirement powers under ss. 231.1(1) and 231.2(1). In essence, officials “cross the Rubicon” when the inquiry in question engages the adversarial relationship between the taxpayer and the state. There is no clear formula that can answer whether or not this is the case. Rather, to determine whether the predominant purpose of the inquiry in question is the determination of penal liability, one must look to all factors that bear upon the nature of that inquiry.

However, the Court also noted that the key was whether the situation had become adversarial in nature, and held that the parties may not necessarily be adversarial even if there are reasonable and probable grounds to lay a charge:

To begin with, the mere existence of reasonable grounds that an offence may have occurred is by itself insufficient to support the conclusion that the predominant purpose of an inquiry is the determination of penal liability. Even where reasonable grounds to suspect an offence exist, it will not always be true that the predominant purpose of an inquiry is the determination of penal liability. In this regard, courts must guard against creating procedural shackles on regulatory officials; it would be undesirable to “force the regulatory hand” by removing the possibility of seeking the lesser administrative penalties on every occasion in which reasonable grounds existed of more culpable conduct. This point was clearly stated in McKinlay Transport, supra, at p. 648, where Wilson J. wrote: “The Minister must be capable of exercising these [broad supervisory] powers whether or not he has reasonable grounds for believing that a particular taxpayer has breached the Act.” While reasonable grounds indeed constitute a necessary condition for the issuance of a search warrant to further a criminal investigation (s. 231.3 of the ITA; Criminal Code, s. 487), and might in certain cases serve to indicate that the audit powers were misused, their existence is not a sufficient indicator that the CCRA is conducting a de facto investigation. In most cases, if all ingredients of an offence are reasonably thought to have occurred, it is likely that the investigation function is triggered.

Therefore, while the existence of reasonable and probably grounds to believe an offence occurred is relevant, it does not necessarily determine that the parties are adversarial. Given this finding, the Court went on to list a series of factors that judges should review when determining if an adversarial relationship has crystallized:

(a) Did the authorities have reasonable grounds to lay charges? Does it appear from the record that a decision to proceed with a criminal investigation could have been made?

(b) Was the general conduct of the authorities such that it was consistent with the pursuit of a criminal investigation?

(c) Had the auditor transferred his or her files and materials to the investigators?

(d) Was the conduct of the auditor such that he or she was effectively acting as an agent for the investigators?

(e) Does it appear that the investigators intended to use the auditor as their agent in the collection of evidence?

(f) Is the evidence sought relevant to taxpayer liability generally? Or, as is the case with evidence as to the taxpayer’s mens rea, is the evidence relevant only to the taxpayer’s penal liability?

(g) Are there any other circumstances or factors that can lead the trial judge to the conclusion that the compliance audit had in reality become a criminal investigation?

While Jarvis held that reasonable and probable grounds, in and of themselves, will not necessarily determine that the parties are adversarial, so as to trigger enhanced Charter rights, a number of workplace safety and health decisions suggest that the presence or absence of reasonable and probable grounds is the dividing line between a regulatory inspection and quasi-criminal investigation.

In R. v. Canada Brick, , the Court considered section 8 of the Charter in concluding that the Ministry of Labour (MOL) improperly used its regulatory inspection powers to further a prosecutorial purpose. In response to an incident, the MOL Inspector attended the scene and inspected the machine and area surrounding it, issuing a stop-work order pending the installation of an appropriate guarding mechanism. The same day, he also discovered that Canada Brick had failed to comply with a previous guarding order with respect to the same machine. The Inspector conducted various inquiries at Canada Brick over the course of the following twenty days.

The Court held that the act of the Inspector imposing the stop work order was not indicative of the formulation of reasonable and probable grounds to believe an offence had been committed, holding that the finding of a contravention of the health and safety legislation did not lead to a conclusion that any one workplace party was responsible for the contravention or an indication of how the unsafe work conditions came to exist. However, the Court found that the Inspector’s act of lifting the stop work order in the face of the installation of temporary guarding and his knowledge of the previous failure to comply with an order resulted in his objectively forming reasonable and probable grounds for believing Canada Brick had contravened the legislation. Therefore, while the Inspector proceeded under a lawful search when he first arrived at the facility, as he formed the basis to believe an offence had occurred over the course of the day, any evidence collected after that point was in violation of Canada Brick’s section 8 Charter protections. In reaching this conclusion, the Court confirmed the “predominant purpose” test as set out in Jarvis.

The Court in Nova Scotia (Department of Labour Transportation & Public Works) v. Nova Scotia (Department of Environment and Labour) was also faced with determining whether evidence gathered by a health and safety inspector violated the section 8 Charter rights of an employer with respect to evidence gathered following an accident. The Department of Labour (DEL) Inspector attended the worksite on 4 different occasions after the happening of an accident to issue compliance orders, order the production of records, seize equipment, and at one point, even took a “cautioned” statement from a corporate representative.

The Court held that the overall conduct of the Inspector did not demonstrate that reasonable and probable grounds had been formed, but rather, the conduct indicated that she was still looking into the accident to determine what happened. As the Inspector had not formed reasonable and probable grounds to believe an offence had occurred, she was able to lawfully seize items and records without a warrant pursuant to the regulatory purpose of the legislation, as it was necessary for her to examine the totality of the evidence prior to concluding that an offence had occurred. The Court also affirmed the “predominant purpose” test from Jarvis , and also confirmed that there is a lower expectation of privacy over items produced in the ordinary course of regulatory activities, thus diminishing the ability of an accused to rely on the Charter.

As such, in the context of the enforcement of health and safety legislation, the principles of the foregoing cases appear to indicate that where an Inspector is determining whether or not a workplace has complied with the legislation, Charter rights will not be triggered. However, where an Inspector has made a determination that reasonable and probable grounds exist to believe an offence has occurred, or otherwise meets the criteria towards triggering the investigation function in that the situation as become “adversarial”, so as to attract enhanced Charter rights.

Considerations Regarding Counsel’s Role

Given the foregoing jurisprudence, if the line has crossed into the quasi-criminal investigation stage, this may attract enhanced Charter rights. However, the jurisprudence also indicates that the application of Charter rights would be contextual and that differing standards apply. Whether this would necessarily give rise to a right to counsel under sections 7 or 10(b) of the Charter may well depend on the circumstances. Where there is a possibility of an individual being charged under the legislation, it is more likely that a right to counsel would arise, as penal consequences, though rare, are nonetheless a possibility under health and safety legislation.

For example in Nova Scotia DEL case, where the Inspector was concerned there was a possibility that a witness may incriminate himself, he was cautioned prior to the taking of his statement. Note, however, that while the Inspector was concerned that the representative of the accused may have incriminated himself while giving the statement, the caution did not amount to a section 8 Charter violation for the corporate accused, as the Court concluded that there was no basis to conclude that the Inspector was investigating the ultimate accused at the time – she was still in the process of information gathering for the purpose of attempting to determine whether there was a violation in respect of the corporation.

It appears to have been key in Nova Scotia DEL that the Inspector was of the view that there was potential for self incrimination. Absent this, it is arguable whether a right to counsel exists in the case of a corporate accused. This is because of the purpose behind the right to counsel, summarized by Lamer C.J.C. in Bartle v. The Queen :

The purpose…is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfill those obligations: R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty…Under section 10(b), a detainee is entitled as of right to seek such legal advice “without delay” and upon request. As this Court has suggested in Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 394, the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly by the criminal process.

These statements have guided the courts in determining the extent of the obligations imposed on agents of the state, which would include workplace health and safety Inspectors, as to when the right to counsel is triggered. There is an argument to be made that absent detention and/or a possibility of self-incrimination, the right to counsel may not apply.

The case of Dehghani v. Canada (Minister of Employment and Immigration) is instructive in this regard. Dehghani came to Canada from Iran and claimed refugee status at the Pearson International Airport in Toronto. At the airport, he was examined by immigration officials at two separate times and was not advised of his right to counsel either time. Section 30(1) of the Immigration Act stated that any person for whom an inquiry is to be held should be informed of the right to obtain counsel. Dehghani argued that his section 10(b) and section 7 Charter rights were violated because he was not able to obtain counsel during the second examination. He argued that the first examination transformed into a detention once the second examination commenced. The main issue was whether Dehghani was “detained” for the purposes of section 10(b) of the Charter. If Dehghani was not detained, he would not be guaranteed the right to counsel.

The Court held that here was no violation of Dehghani’s Charter rights. Being examined in an airport by immigration officials was not considered “detention” within section 7 or 10(b) of the Charter. The Court began its analysis of “detention” by reviewing R v. Therens , stating:

The purpose of s. 10 of the Charter is to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay. The situations specified by s. 10 — arrest and detention — are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel. In its use of the word “detention”, s. 10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.

In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.

. . . There can be no doubt that there must be some form of compulsion or coercion to constitute an interference with liberty or freedom of action that amounts to a detention within the meaning of s. 10 of the Charter.

The Court further stated that detention does not occur automatically, regardless if there exists a statutory duty or penal sanction for failure to answer questions:

It is important to note that neither the existence of a statutory duty to answer the questions posed by the immigration officer nor the existence of criminal penalties for both the failure to answer questions and knowingly making a false or misleading statement necessitates the conclusion that the appellant was detained within the meaning of s. 10(b). These provisions are both logically and rationally connected to the role of immigration officials in examining those persons seeking to enter the country . Indeed, they are required to ensure that border examinations are taken seriously and are effective. Both of these types of provisions also exist in the Customs Act, and as I have already discussed, this Court held in Simmons at p. 517 that it would be absurd to suggest that routine questioning by a customs officer constitutes a detention for the purposes of s. 10(b).

The Court also stated that routine information gathering will not extend the right to counsel:

Certainly, factual situations which are closer or analogous to criminal proceedings will merit greater vigilance by the courts. However, in an immigration examination for routine information-gathering purposes, the right to counsel does not extend beyond those circumstances of arrest or detention described in s. 10(b).

Dehghani was cited with approval in the health and safety decision of Ebsworth v. Alberta (Human Resources and Employment) , wherein it was determined that where the gathering of information from a witness in the occupational health and safety investigation is similar to the routine information gathering in the immigration situation, and the right to counsel did not arise as the Applicant’s liberty interest was not in jeopardy, and the risk of future charges arising from the statement was not an imminent one. This can be contrasted with the situation in Nova Scotia DEL, wherein it was thought that there was a possibility for self-incrimination, and as a result, the witness was cautioned appropriately.

In Ebsworth, the issue of right to counsel in the context of health and safety litigation was addressed. In considering this issue, Ebsworth ties together many of the various principles addressed in the other cases discussed in this paper relating to the importance of the distinction between regulatory inspections and investigations in determining whether the circumstances attract Charter rights.

In Ebsworth, counsel was not allowed to be present during the course of interviews following an accident in which a worker was killed on a work site. Subsequent to an accident, two Occupational Health and Safety (“OHS”) Officers came onsite to conduct interviews and gather documents for a possible investigation. With counsel present, the applicant gave a taped statement to the Officer. However, there were technical issues with the audio recording when the interview was taped. Consequently, the Officer requested a second interview. However, before the second interview, the OHS department changed its policy and would not allow counsel to be present during interviews.

The main issue in this case was whether the applicant was guaranteed counsel for the second interview. The applicant argued that disallowing counsel was contrary to his section 7 Charter rights. The applicants made five arguments:

(1) The Officer did not have the jurisdiction to exclude counsel from the interviews;

(2) The applicant’s Section 7 Charter right was violated;

(3) The applicant’s right to remain silent and against self- incrimination was infringed;

(4) The applicant was detained within the meaning of section 7 of the Charter; and

(5) The applicant’s right to counsel under section 7 of the Charter had been infringed.

The Court rejected each argument, and held that OHS was allowed to create its own procedures, and in that regard, had the power to exclude counsel. Further, excluding counsel was not contrary to the applicant’s Charter rights.

(1) The OHS officer did not have the jurisdiction to exclude counsel from the interviews

The Court dismissed this argument and held that if a statute is silent on whether counsel may be part of the interview process, then the investigating body has the power to decline counsel’s presence, as the investigating body also has the power to set their own procedures for investigations. The Court relied on the principle in Irvine v. Canada (Restrictive Trade Practices Commission) , in which the Supreme Court held that an investigative body must have control of its own procedure, and where the legislation in question did not expressly provide a right to cross-examine witnesses and the duty of fairness did not require it, the hearing officer could refuse to permit cross-examination. Similarly here, the OHS officers had the right to control their procedures, as long as they did not conflict with the Occupational Health and Safety Act .

Commentary from Irvine is worth noting in this regard. In Irvine, the Restrictive Trade Practices Commission ordered twenty-nine people to appear before a Hearing Officer. The hearing was commenced as a fact-finding exercise to determine if there had been a violation of the Combines Investigation Act.

The Supreme Court held that an investigative body must have control over its own processes, and that so long as an investigatory process does not contradict statutory legislation, an investigatory body has the discretion to create procedural rules. However, once an investigatory body lays charges against an individual, specific Charter rights must be recognized and guaranteed. There was found to be no Charter violation because the Charter was not yet in force at the time of the hearing, given that it was clearly stated to be a fact finding mission in an effort to determine whether there had been a violation.

The Supreme Court further held in Irvine that the right to counsel ties into the issue of fairness as required by an investigating body. In this regard, Estey J. relied on a quote from Lord Denning in Selvarajan v. Race Relations Board, wherein he stated:

In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers.

In this regard, Estey J. held that the characteristics of the proceeding, the nature of the resulting report and its circulation to the public, and the penalties which will result when events succeeding the report are put in train will determine the extent of the right to counsel and, where counsel is authorized by statute without further directive, the role of such counsel.

(2) The applicant’s Section 7 Charter right was violated

In rejecting this argument, the Court reviewed the three stages of the section 7 analysis from R v. White :

1. Is there a real or imminent deprivation of life, liberty, security of the person, or a combination of these interests?

2. Which elements of the principles of fundamental justice are engaged, and how are they defined?

3. Has the deprivation alleged occurred, or will it imminently occur, in a manner consistent with the principles of fundamental justice?

The Court concluded that there was no real or imminent deprivation of liberty during the interview stage because the Officers were merely gathering information. Therefore, excluding the applicant’s counsel did not violate the principles of fundamental justice and did not breach his section 7 Charter right. Moreover, the Court referred to the principle of derivative use immunity to reject a section 7 violation, as the dominant purpose of requiring the applicant to provide information was not to incriminate him, but to obtain information necessary to determine the cause of a workplace accident. Further, if there were subsequent proceedings he would be protected by the derivative use immunity in s. 7 of the Charter.

(3) The applicant’s right to remain silent and against self- incrimination was infringed

In making this argument, the applicant relied on R v. Hebert to argue that a breach of section 7 is triggered when the state coerces an individual. The Court dismissed this argument, relying on Fitzpatrick and Jarvis, in support of the conclusion that an adversarial relationship is required between the state and the individual to elicit a section 7 breach. In this case, there was no arrest, charge or accusation of any crime. Only an interview process had occurred, and the process had not moved into the adversarial realm.

(4) The applicant was detained within the meaning of section 7 of the Charter

The Court rejected this argument by concluding that the interview process in question in an OHS case was not analogous to the detention described in the case law, and therefore concluded that the Applicant was not detained. In fact, the interviews were adjourned several times to accommodate requests by the witnesses – for grief counseling, for the funeral, and for the Applicant to prepare his written statement at home, which was not indicative of one who is detained. The Court also concluded that the fact that a refusal to provide the requested information could result in charges is not enough to constitute psychological detention, and that was “consistent with any statutorily compelled statement.”

(5) The applicant’s right to counsel under section 7 of the Charter had been infringed.

In arguing that his right to counsel had been infringed, the applicant argued that since there is no right to remain silent during a regulatory interview process, he should have had the right to counsel. The Court rejected this by relying on Dehghani, holding that the gathering of information in the OHS investigation is similar to the routine information gathering in the immigration situation in Dehghani. The applicant’s liberty interest was not in jeopardy, and the risk of future charges arising from the statement was not an imminent one. Further, the Court concluded that his psychological integrity is not threatened, stating “the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action” are not sufficient.

Given the determinations in Ebsworth, some may argue that until the line is crossed into the “adversarial” realm as enunciated in Jarvis, charges are imminent, and unless there is “detention” or the likelihood of self-incrimination, there is little that counsel can do but sit back and quietly advise our clients in the background. Others, however, may argue that a more forceful approach ought to be taken, and that if our clients insist on having counsel present, we should advocate for more active involvement where policy allows. How best do we as counsel serve our clients? Do we have a role at all at the early stage of an inspection?

Despite the fact that our role may be unclear, many clients automatically assume that the happening of the accident alone is enough to provide reasonable and probable grounds in the workplace safety and health context, and therefore want counsel to be involved in the early stages of an inspection, when it is more likely than not the line has not yet been crossed into the investigation stage and the adversarial realm. However, it is important to recognize that in the context of health and safety litigation, the happening of the accident or an injury is just one piece of evidence that may lead to a conclusion that a regulatory offence has been committed.

The reality is that it is necessary for the Inspector to conduct an inspection, in the face of the happening of an accident, in order to make a determination as to whether reasonable and probable grounds exist to lay a charge. In fact, it may well be the case that the determination not to charge is made on the basis of information obtained at the inspection stage. As such, counsel ought to be cautious in engaging in actions at the inspection stage that may impede the ability of the Inspector to obtain information that would ultimately result in a determination that the corporate accused was duly diligent. If the Inspector can be convinced of this at an early stage, it is more likely than not that the inspection will end there, and not cross the line into a quasi-criminal investigation. It should, therefore, never be assumed that an Inspector will have formed reasonable and probable grounds to believe an offence has been committed at any particular time during the inspection stage. Counsel must engage in a careful balancing act, ensuring that they do not impede the inspection, while being mindful of the Jarvis factors, watching for any indication that the focus of the inspection has shifted into a quasi-criminal investigation.

This is not always easy to do, as the involvement of counsel is not always well received by the Inspector. For example, the most common occasion where clients want counsel involvement at the inspection stage is in the context of witness interviews, which was seen in Ebsworth. Most commonly, this is not to enforce any Charter right, but to ensure that the typed statements that are ultimately generated in the course of the interview accurately reflect what was said. In addition, until such time as charges are laid, the company does not have access to the witness statements. If charges are laid, the statements will be provided in the Crown disclosure. If charges are not laid, a request must be made under the applicable freedom of information legislation for a particular jurisdiction to obtain the statements at a later date. The company, in anticipation of the need to prepare to defend charges, may well have a vested interest in knowing what was said at the interviews.

However, in many instances, an Inspector may not react well to having counsel involved in the early stages of an inspection, particularly in the case of witness interviews, and as we saw in Ebsworth, departmental policy in Alberta was such that counsel was no longer permitted. While there is no similar policy in Manitoba, the involvement of counsel is often met with leery distrust, and the concern often expressed by Inspectors is that a witness will not feel that they can speak freely if counsel for the company is present, as they will be concerned that counsel will just report back to the company on any “bad” things the witness says. As such, in jurisdictions where policy allows the presence of counsel, there may nonetheless be significant push-back from Inspectors to counsel’s involvement. In fact, it is not uncommon for Inspectors to indicate that they will not deal directly with counsel at all, and this position can be supported by Ebsworth and Irvine.

That said, the involvement of counsel can have an impact, and there may be occasions where counsel ought to push for further involvement to the extent policy allows. For example, in Manitoba, until recently, interviews were done without the benefit of audio recording, and counsel who were permitted to be present at interviews noted that the written statements that were ultimately generated did not always accord with their written notes. In addition, there were concerns that written statements did not give an indication as to the extent a witness may have been led by the inspector, or in cases where there were language barriers, whether the witness may have had difficulty in understanding the questions asked. Despite disapproval from a number of Inspectors, several counsel, along with their clients, pushed to have counsel present at interviews, in an effort to ensure the accuracy of the witness statements, and to ensure there was a record where the statement did not appear to accord with what transpired in the interview. Following commentary from defence counsel to the Assistant Deputy Minister for Workplace Safety and Health on these observations, expressing their concerns, the policy has now changed to ensure that interviews are audio taped. As such, counsel’s involvement and advocacy was significant in bringing about policy change that ultimately resulted in a more fair process at the inspection stage.

Counsel’s involvement at the early stage, even if not directly related to the Inspector, has the potential to have far reaching effects. One example is the guidance we may be able to give to clients in how to best meet their statutory requirements at the time an accident happens, in a way that might assist them in bringing out evidence of due diligence at the inspection stage. While counsel must be careful to avoid doing inspections for clients, so as not to become a witness in their own case, counsel can certainly guide them on completing their statutorily mandated investigation into an accident, in a way that may help them draw out evidence of due diligence, which may in turn lead the regulator to determine there was no violation under the legislation.

At the end of the day, there is no right answer as to the extent counsel ought to be involved at the inspection stage. Ultimately, we as counsel must make the determination how best to serve our clients at a stage in which they are often statutorily required to provide statements or evidence that may ultimately be used against them later, without the benefit of Charter protections, and ensure that in advising them, we do not ultimately impede an Inspector’s ability to uncover evidence that could demonstrate due diligence, or make matters worse in terms of our clients’ relationships with the regulator. The circumstances of our clients, the accident, the relationships that exist with the regulator, and even individual inspectors, would all come into play, along with the policy considerations in each jurisdiction.

1. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [hereinafter “Charter”]

2. See Thomson Newspapers v. Canada (1990), 54 C.C.C.(3d) 417 and R v. Wholesale Travel Group Inc. [1991] 3 S.C.R. 154.

3. Marie Comiskey, Justice Peter de Carteret Cory and his Charter Approach to Regulatory Offences, University of Toronto Faculty of Law, (2007) 65 U.T. Fac. L. Rev 77 – 106, at 81.

4. R v. Wholesale Travel Group Inc. [1991] 3 S.C.R. 154. [hereinafter “Wholesale Travel Group”]

5. Ibid, at page 220-21

6. Ibid, at page 227 to 229

7. Ibid, at page 227 to 229

8. Ibid, at page 219

9. Ibid, at page 219

10. R. v. Fitzpatrick, [1995] 4 S.C.R 154 [hereinafter “Fitzpatrick”]

11. Ibid, at para 27

12. Ibid, at para 29

13. Ibid, at para 20

14. R. v. Jones, [1994] 2 S.C.R 229

15. Fitzpatrick, supra note 10, at para 34

16. Wholesale Travel Group, supra note 5

17. Fitzpatrick, supra note 10, at paras 40-42

18. Ibid, at para 49

19. R. v. Jarvis, [2002] 3 S.C.R. 757 [hereinafter Jarvis], at para 61

20. R. v. Inco (2001) CanLII 8548 (On C.A.) [hereinafter Inco]

21. R.S.O. 1990, Ch. O.40

22. Inco, supra note 20, at para 19.

23. Comite paritaire de l’industrie de la chemise v. Potash; Comite paritaire de l’industrie de la chemise v. Selection Milton, [1994] 2 S.C.R 406 [hereinafter ” Comite paritaire “]

24. Hunter v. Southam [1984] 2 S.C.R 145 [hereinafter “Hunter v. Southam”]

25. see Ibid, at paras 159-162 for a full discussion of the Hunter v. Southam criteria.

26. Ibid, at page 161

27. Comite paritaire, supra note 23, as cited in Inco, supra note 20 at paras 29, 30, 32

28. Jarvis, supra note 19

29. Income Tax Act , R.S.C. 1985, c. 1

30. Jarvis, supra note 19, at para 2

31. Ibid, at para 88

32. Ibid, at para 89

33. Ibid, at para 92-94

34. R. v. Canada Brick, 2005 CanLII 24925 (ON SCJ) [hereinafter “Canada Brick”]

35. Ibid, at para 159.

36. Ibid, at para 160

37. Ibid, at para 163

38. Nova Scotia (Department of Labour Transportation & Public Works) v. Nova Scotia (Department of Environment and Labour) [2006] NSPC 39 [hereinafter Nova Scotia DEL]

39. Ibid, at para 55

40. Ibid, at para 51 and 52.

41. Ibid, at para 56

42. Ibid, at para 60

43. Ibid, at para 59

44. Bartle v. The Queen, [1994] 3 S.C.R. 173

45. Ibid, at para 16

46. R. v. Dehghani [1993] 1 S.C.R 1053 [hereinafter “Dehghani”]

47. R v. Therens [1985] 1 S.C.R. 613

48. Dehghani, supra note 46, at page 16

49. Ibid, at page 25

50. Ebsworth v. Alberta (Human Resources and Employment), 2005 ABQB 976 (CanLII) [hereinafter “Ebsworth”]

51. Ibid, at para 63

52. Ibid,at para 31

53. Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181 [hereinafter “Irvine”]

54. Ebsworth, supra note 50 at para 31

55. R.S.A. 2000, c. O-2

56. Irvine, supra note 53

57. Combines Investigation Act , S.C. 1952 supp. c. 314 (repealed 1986)

58. Selvarajan v. Race Relations Board [1976] 1 All E.R. 12

59. Irvine, supra note 53 at para 54

60. Ibid, at 78

61. R. v. White, [1999] 2 S.C.R 417

62. Ibid, as cited in Ebsworth, supra note 50 at para 42

63. Ebsworth, supra note 50, at para 47

64. Ibid, at para 47

65. R. v. Hebert, [1990] 2 S.C.R. 151

66. Ebsworth, supra note 50 at para 54

67. Ibid, at para 58

68. Ibid, at para 58

69. Dehghani, supra note 46

70. Ebsworth, supra note 50, at para 63

71. Ibid, at para 63

72. R. v. Canadian National Railway [2003] M.J. No. 104 (Man. Prov. Ct.), at para 103

 

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