United States of America (District Court) v. Royal American Shows, Inc. et al.

United States of America (District Court) v. Royal American Shows, Inc. et al.
Collection
Supreme Court Judgments
Date
1982-03-18
Report
[1982] 1 SCR 414
Case number
16497, 16604
Judges
Laskin, Bora; Ritchie, Roland Almon; Dickson, Robert George Brian; Estey, Willard Zebedee; McIntyre, William Rogers
On appeal from
Alberta
Subjects
Evidence
Notes
SCC Case Information: 16604, 16497
Decision Content
Supreme Court of Canada
United States of America (District Court) v. Royal American Shows, Inc. et al., [1982] 1 S.C.R. 414
Date: 1982-03-18
IN THE MATTER of an Application pursuant to Section 43 of the Canada Evidence Act
AND IN THE MATTER of a Request for International Judicial Assistance from the United States District Court, Middle District of Florida, Tampa Division, by way of Letters Rogatory
The District Court of the United States, Middle District of Florida Appellant;
and
Royal American Shows, Inc., Carl J. Sedlmayr, Jr., Vivian Phillips, Esther Phillips, Mark Popovich, Nina Popovich, Frank J. Russell and Peter Andrews Respondents;
AND IN THE MATTER of an Application pursuant to the Canada Evidence Act, R.S.C. 1970, c. E-10, Part II, Section 43;
AND IN THE MATTER of a Request for International Judicial Assistance from the United States District Court, Middle District of Florida, Tampa Division, by way of Letters Rogatory dated February 25, 1981;
The United States of America Applicant;
and
Royal American Shows, Inc., Carl J. Sedlmayr, Jr., Vivian Phillips, Esther Phillips, Mark Popovich, Nina Popovich, Frank J. Russell and Peter Andrews Respondents.
File Nos.: 16497 and 16604.
1982: January 27; 1982: March 18.
Present: Laskin C.J. and Ritchie, Dickson, Estey and McIntyre JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA
Evidence—Letters rogatory—U.S. tax case—Production of documentary evidence in Canada—Documentary evidence not ancillary to viva voce tes- timony—Whether or not documentary evidence alone subject to s. 43 of the Canada Evidence Act—Admissibility of illegally obtained telephone taps in s. 43 hearing—Canada Evidence Act, R.S.C. 1970, c. E-10, ss. 43, 47—Criminal Code, R.S.C. 1970, c. C-34, ss. 178.2, 178.16, 446.
The Alberta Supreme Court responded favourably to letters rogatory seeking assistance for the production of documents and recordings of telephone interceptions for use in a U.S. trial dealing with criminal tax evasion. The persons holding the subject material were directed to appear before a Commissioner. Both the hearing under s. 43 of the Canada Evidence Act and the production of the materials before the Commissioner were to be deferred until the conclusion of a series of proceedings and appeals relating to material seized by the Minister of National Revenue. The Alberta Court of Appeal found s. 43 of the Canada Evidence Act inapplicable. Appellant appealed that judgment and, as applicant, addressed fresh letters rogatory to this Court in its capacity of court of original jurisdiction in this regard. However, in the result it became unnecessary to consider this original application to the Supreme Court.
Held: The appeal should be allowed.
Section 43 of the Canada Evidence Act should be given a broad, liberal construction in the interests of comity. That section, providing concurrently or separately for viva voce testimony and for testimony by way of documentary evidence, is wide enough to support this request for documents alone. Judicially established guidelines prescribing the limits of comity were met—excluding the tapes of illegally intercepted telephone calls. The evidence was required for trial, not discovery; relevancy was a matter for the commissioner taking the evidence and/or for the U.S. court to determine; the scope of the inquiry was within Alberta law; and, the material requested was adequately defined. The contents of illegally tapped telephone calls were admissible at the s. 43 hearing only as against the other accused in order not to prejudice the illegally tapped couple as defendants in the U.S. proceedings. Section 178.16(3.1) of the Criminal Code enlarging the admissibility of intercepted private communications was not eroded in these circumstances. Judicial assistance, despite arguments opposing it, should be granted. The Alberta Court had jurisdiction; its rules provided for the extra-territorial application of its orders and the federal department holding evidence in Regina had assured co-operation. As only criminal charges were involved in the application, there could be no question of collecting a foreign country’s taxes. Arguments based on s. 446 of the Criminal Code, dealing with the retention and disposition of seized material, were eclipsed by procedural developments in this case.
Zingre v. The Queen, [1981] 2 S.C.R. 392 applied; Penn-Texas Corporation v. Murat Anstalt and Others (No. 2), [1964] 2 All E.R. 594; Medical Ancillary Services et al. v. Sperry Rand Corporation (1979), 23 O.R. (2d) 406; Burchard v. Macfarlane, [1891] 2 Q.B. 241; Radio Corporation of America v. Rauland Corporation, [1956] 1 All E.R. 549, reversing [1956] 1 All E.R. 260; Penn-Texas Corporation v. Anstalt and Others (No. 1), [1963] 1 All E.R. 258; Panthalu v. Ramnord Research Laboratories, Ltd., [1965] 2 All E.R. 921; American Express Warehousing, Ltd. v. Doe and Others, [1967] 1 Lloyd’s Rep. 222, considered.
APPEAL from a judgment of the Alberta Court of Appeal, (1981), 26 A.R. 136, setting aside an order of Miller J. who responded favourably to letters rogatory issued by Magistrate Game of the United States District Court, Middle District of Florida, Tampa Division. Appeal allowed.
B.A. Crane, Q.C., and Henry S. Brown, for the appellant.
A.G. Macdonald, Q.C., for the respondents.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—This is an appeal, by leave, from a judgment of the Alberta Court of Appeal setting aside an order of Miller J. who responded favourably to letters rogatory issued by Magistrate Game of the United States District Court, Middle District of Florida, Tampa Division. In brief, the letters rogatory sought the assistance of Canadian courts, pursuant to s. 43 of the Canada Evidence Act, R.S.C. 1970, c. E-10, to secure the production of certain documents and recordings of telephone interceptions, either in original form or by way of certified copies, for use in a trial in the requesting court of charges of criminal evasion of income tax by a number of American citizens then within the jurisdiction of that court.
Miller J., in lengthy reasons delivered on September 13, 1979 and to which I will refer in due course, made an order for production of certified copies by the persons having physical control of the material who were, under his formal order of November 28, 1979, directed to appear before former Justice Neil Primrose, appointed as a Commissioner, for examination pursuant to s. 44 of the Canada Evidence Act. The lapse of time between the delivery of the reasons and the issue of the formal order occurred because of the acceptance by the United States Court of Miller J.’s invitation to add additional exhibits to the letters rogatory. In the result, additional letters rogatory were issued which had as exhibits detailed schedules listing other documents whose production was requested. The list, I should note, contained documents requested by the defendants.
Although the formal order included documents in the supplementary request for judicial assistance, the documents principally in issue were those identified as contained in Exhibits 1(a), 1(b), 1(c), 1(d) and Exhibit 2. These were documents which were seized by the police in carrying out an investigation into the affairs of the Royal American Shows, Inc. operators of a midway and carnival in Western Canada and in the United States. The individual respondents against whom criminal proceedings were on foot in Florida, were all associated with the operations of the Royal American Shows, Inc.
Some of the documents seized by the police were in turn taken from them by members of the Department of National Revenue under the Income Tax Act and brought to its offices in Regina. Some of these were returned to Edmonton for use in connection with conspiracy charges in Alberta which the provincial Attorney General brought. Before going on with them, however, he established a public inquiry under Justice Laycraft and many documents among those originally seized were entered as exhibits in that inquiry. Tape recordings of certain intercepted conversations were also produced in the Laycraft inquiry. As a result of the inquiry, the conspiracy charges were stayed. The stay was followed by an application before Provincial Court Judge Rolf to determine who was entitled to the seized material. Judge Rolf held that the Minister of National Revenue could not lawfully retain the material it had taken by what was an illegal seizure and ordered its return to Royal American Shows, Inc. and to certain concessionaires. An appeal taken from this ruling was pending when Miller J. handed down his reasons.
In the meantime, a consent order was made that all persons having custody of any seized material would keep it safe pending the appeal. The record showed that some of the material was in the hands of the Edmonton City Police, some in the hands of the Department of National Revenue in Regina, some in the possession of the Alberta Court of Queen’s Bench and some (the Laycraft inquiry exhibits) in the possession of the clerk of the Alberta Legislature.
In his reasons, and again in his formal order, Miller J. directed that the hearing under s. 43 of the Canada Evidence Act be deferred until judicial proceedings and appeals relating to the seized material were concluded and that production of the original materials before the Commissioner be likewise deferred until that time.
The Judgment of the Alberta Court of Appeal
The Alberta Court of Appeal, speaking through Lieberman J.A., took only one point in setting aside the order of Miller J. It held that a request by the United States District Court for the production of documents only did not come within s. 43 of the Canada Evidence Act. Unless the request for judicial assistance related to the examination of a witness or party, who might then be ordered to produce documents, a request merely for production of documents could not be the subject of an order under s. 43.
I do not agree with this view of s. 43 for reasons to which I will come. Following the judgment of the Court of Appeal, fresh letters rogatory were addressed to the original jurisdiction of this Court (the only original jurisdiction remaining to us, apart from references by the Governor in Council) in which examination of witnesses was sought and as well the production of documents. Counsel for the applicant, being also the appellant here in respect of proceedings in the Alberta courts, indicated that if he succeeded in the appeal he would not pursue the original application here. Of course, this Court heard argument from both sides on the original application but since, in my opinion, the appeal should succeed, I would either give leave to withdraw the application without costs or I would quash it without costs.
An Order for Production of Documents under Section 43
Letters rogatory engage s. 43 of the Canada Evidence Act which reads as follows:
43. Where, upon an application for that purpose, it is made to appear to any court or judge, that any court or tribunal of competent jurisdiction, in the Commonwealth and Dependent Territories, or in any foreign country, before which any civil, commercial or criminal matter is pending, is desirous of obtaining the testimony in relation to such matter, of a party or witness within the jurisdiction of such first mentioned court, or of the court to which such judge belongs, or of such judge, the court or judge may, in its or his discretion, order the examination upon oath upon interrogatories, or otherwise, before any person or persons named in the order, of such party or witness accordingly, and by the same or any subsequent order may command the attendance of such party or witness for the purpose of being examined, and for the production of any writings or other documents mentioned in the order, and of any other writings or documents relating to the matter in question that are in the possession or power of such party or witness. The reasons of the Alberta Court of Appeal are founded upon an analysis of s. 43 which sees it composed of two limbs, the second dependent upon an order made under the first; or, to put the issue in other words, production must be ancillary to an order for examination of a witness or party to elicit oral evidence. Lieberman J.A. expressed himself as follows:
In my respectful view it is only necessary to deal with one question in this appeal. Can this Court acting pursuant to s. 43, supra, grant the request of the Florida Court which is a request for documents only?
An analysis of s. 43 discloses that it is composed of two limbs. Under the first limb the Court may make an order for the examination of a witness or party and under the second limb the Court may then by that order or by a subsequent order command the attendance of a party or witness for the purpose of being examined or for the production of documents. Clearly, the implementation of the second limb is dependent upon an order made under the first limb.
While I agree that the word testimony in s. 43 includes both oral evidence and documentary evidence (Radio Corporation of America v. Rauland and Another [1951] 1 Q.B. 618 and Re Radio Corporation of America v. Rauland et al. (1956), 5 D.L.R. (2d) 424), I am of the opinion that this does not affect the application of what I would term the two-limbed approach.
Once it is conceded, as the learned Justice of Appeal says, that the word “testimony” in s. 43 includes both oral evidence and documentary evidence, I do not see any compelling reasons for a two-limbed approach, an approach which he comes to through the use of the word “then” in the passage of his reasons above-quoted and which obviously relies upon the word “such” in s. 43. I read s. 43 differently and more broadly as providing concurrently or separately for viva voce testimony and for testimony by way of documentary evidence. The word “such” is merely a referent and not a restriction, once it is conceded that “testimony” includes both oral and documentary evidence. The section speaks of ordering examination upon oath upon interrogatories or otherwise “and by the same or any subsequent order may command the attendance of such party or witness for the purpose of being examined, and for the production of any writings or other documents”. (The underlining of the word “same” is mine.) As this Court has indicated in Zingre v. The Queen, [1981] 2 S.C.R. 392, comity dictates that a liberal approach should be taken to requests for judicial assistance, so long at least as there is more than ephemeral anchorage in our legislation to support them. I am of the view that s. 43 is wide enough to support the request here for production of documents alone.
I say this because documents for use in criminal proceedings are not expected to walk into Court unescorted. Lord Denning in Penn-Texas Corporation v. Murat Anstalt and Others (No. 2), [1964] 2 All E.R. 594, noted quite correctly, at p. 598, that when a subpoena duces tecum is issued to an individual, he was originally sworn even though only called to produce documents. Later, to overcome subjecting him to cross-examination on the case at large when his only role was the formal one of producing the documents and saying that he had custody of them and how he came by them, a witness called only to produce documents did not have to be sworn and could not be cross-examined at large but he could be sworn if any issue arose as to his custody and for that limited purpose only.
I am not concerned here with the procedural question whether the person called only to produce documents need be sworn. (In Canada, the rule is that he is sworn.) The Alberta Court of Appeal said that Lord Denning’s observations on the subpoena duces tecum favoured the right to issue letters rogatory calling only for the production of documents, but then said that he qualified his views by certain concluding words, as follows:
…provided always that the documents are required for the purposes of the trial, as ancillary to the examination of a witness,…
The Court of Appeal ended this quotation too soon because it continues with these added words: and not as a means of getting discovery from a person not a party … nor as part of a pre-trial procedure which is not a part of the trial…
In the present case, there is no question of the documents being sought for discovery or for any purpose other than trial. I would adopt what Lord Denning said as unqualified by any ancillary doctrine. Indeed, in my view the Alberta Court of Appeal has taken the English cases, especially the two Penn-Texas cases too far. They do not, as I read them, support the Court of Appeal’s position. On the other hand, its position is supported by the judgment of Steele J. in Medical Ancillary Services et al. v. Sperry Rand Corporation (1979), 23 O.R. (2d) 406, and I shall have something to say about this case (which was cited and quoted without particular emphasis) after I have looked at the English cases considered by the Alberta Court of Appeal.
Review of the Authorities
Although Burchard v. Macfarlane, [1891] 2 Q.B. 241, was not itself cited in the courts below, it was referred to with approval in Radio Corporation of America v. Rauland Corporation, [1956] 1 All E.R. 260, and on appeal at p. 549, which was considered in the Alberta courts. I propose to examine it first because it appears to have promoted the ancillary doctrine applied by Lieberman J.A. in the present case. The Burchard case was not a case involving letters rogatory but it was close enough in involving an attempt to obtain commission evidence in England for use in a Scottish action by the production of documents from a non-party witness under s. 5 of the British Evidence by Commission Act of 1843. The English Court of Appeal held that the order that was made was in effect an order for discovery, and there was no right to such an order against a non-party witness. Lord Halsbury put the matter in these words (at p. 245): “When I look at the Act of Parliament, it appears to me that the only process intended to be enforced was the production of documents as ancillary to the examination of a witness”. Lord Esher pointed out that the order was made on third parties who have nothing to do with the action, and with respect to documents which are their sole property and not in any way the property of the parties to the action. The order was, in effect, for discovery which was beyond the Court’s jurisdiction. He added this (at pp. 248-49):
Where there is an order that a witness is to be examined before the commissioner, it is under the same circumstances as would arise if he were examined at the trial, and the order that may be lawfully made is for the attendance for examination as a witness as if he were at the trial—the production of any writings or documents to be mentioned in the rule or order which may be made for his attendance and examination as a witness, is only equivalent to saying that he must bring the writings or documents as he would bring them [with him] on a subpoena duces tecum. Here that is evaded. The order is for discovery before examination instead of for production on examination.
Fry L.J. gave reasons to the same effect. I quote the following from his reasons (at p. 250):
That statute enables the Court in England or Scotland or Ireland to direct a commission for the examination of witnesses—that means persons who are able to bear testimony with regard to the issues in controversy between the litigant parties. It does not mean that they may be examined with regard to the possession of documents which may be relevant to the controversy between the parties. That observation governs, in my opinion, the whole of the section, and I think the words at the end “for the production of any writings or documents to be mentioned in such rule or order,” are only ancillary to the examination of witnesses. The words may enable the parties to require the production of the documents which the witness produces as a witness; but they cannot for one moment be stretched so as to enable any one to obtain discovery against a witness.
Radio Corporation of America v. Rauland Corporation, supra, involved letters rogatory addressed to judicial authorities in England for assistance in a United States action by way of requiring certain persons who were directors of two English companies to attend for examination, under s. 1 of the English Foreign Tribunals Evidence Act, 1856, and to produce certain documents of the companies although neither they nor the directors were parties to the United States action nor was there evidence that officers of the company might be material witnesses in the action. Barry J. held that what was sought was, in effect, discovery from persons who were not parties to the American litigation. He held that the Burchard case was applicable in terms of the similarity of the applicable legislation. He then ruled as follow (at p. 270):
I hold that under the Foreign Tribunals Evidence Act, 1856, as under the Evidence by Commission Act, 1843, the power to make an order for “the production of any writings or other documents” is ancillary to the order for the examination of witnesses, and that the court has no power to order what is, in effect, discovery against a witness, or to call a witness for examination merely to obtain discovery or to examine him on the documents which may be in his possession or control. Should I be wrong in my view on the question of jurisdiction, I am quite satisfied that, as a matter of discretion, Master GRUNDY’S order, in so far as it relates to the production of documents, cannot be supported. The enforcement of such an order against any company or person not a party to the action would, I think, be grossly oppressive when judged by the standards of our own civil procedure, and I do not propose to judge it by any other standard.
However, Barry J. did uphold the request in the letters rogatory in so far as it related to certain witnesses who apparently could give oral evidence referable to facts relevant to the trial of the American action and directed production of related documents, subject to the right of the witnesses to refuse to answer questions that would incriminate them either under United States or English law.
This latter order was set aside on appeal, it being the view of the Queen’s Bench Division that what was being sought was disclosure of material for the purpose of pre-trial proceedings in the United States and which might lead to a line of inquiry through which relevant trial testimony might be disclosed. It was held that the English Act of 1856 did not permit an order which had that effect, an order which was really one for discovery. Devlin J., in his reasons referred also to the Burchard case and continued as follows (at p. 552):
In that authority the distinction is made plain between what I have called discovery or indirect material on the one hand, and proof or direct material on the other hand. That is, I think, the true distinction with which one must approach the word “testimony” in this Act. Testimony which is in the nature of proof for the purpose of the trial is permissible. Testimony, if it can be called “testimony”, which is mere answers to questions on the discovery proceeding designed to lead to a train of inquiry, is not permissible. Into which category does the present fall? It might perhaps be enough to say that it is plain enough from what I have said of the nature of proceedings in the court in Illinois that they fall into the category of pre-trial proceedings, proceedings by way of discovery…
Earlier in his reasons, he put the matter in these words (at p. 551):
The distinction is not whether what is to be obtained is documentary material or oral material. The distinction is whether it is a process by way of discovery and testimony for that purpose or whether it is testimony for the trial itself.
In Penn-Texas Corporation v. Anstalt and Others (No. 1), [1963] 1 All E.R. 258, and in Penn‑Texas Corporation v. Murat Anstalt and Others (No. 2), supra, each decided by different panels of the English Court of Appeal, the main issue was whether a limited company could be ordered in response to letters rogatory and under the English Act of 1856, to be examined under oath. In both cases, it was held that the Act did not authorize such an order but that it was permissible to order a limited company to produce existing and specified documents for the purposes of trial in the foreign court and not for discovery or for pre-trial proceedings. There are indications in these cases, and I refer especially to the reasons of Pearson L.J. in the second Penn-Texas case, at pp. 601-02, that production of documents only by a witness should be limited to situations where his testimony is required under the letters rogatory. In the first Penn-Texas case, Davies L.J. dealt, at p. 273, with an argument, based on the Burchard case that the English Act of 1856 is directed to oral examination of a witness and that it is impracticable to order production of a document unless the command is directed to a person. He said this:
There is no doubt that LORD ESHER, M.R., and FRY, L.J., in Burchard v. Macfarlane, Ex p. Tindall, did, in effect, express the view that the provisions of the Evidence by Commission Act, 1843, similar to those under discussion here, applied to the production of documents by a witness and not otherwise; and this expression of opinion was followed by BARRY, J., in Radio Corpn. of America v. Rauland Corpn. But the real ratio of the decision in Burchard’s case was that the application was an attempt to obtain discovery from someone who was not a party to the suit. And similarly the ratio of the decision of the Divisional Court in the Radio Corpn. case was that the application was part of pre-trial discovery. Once it is conceded, as it is in the present case, that the application is one for evidence to be used at the trial and is a part of trial procedure, then these two authorities are not, as I understand them, a bar to the present application. The production of a document may well be said to be ancillary to oral evidence, even though the document is produced by someone other than the person who gives the oral evidence. And the fact that a company can only comply with an order by instructing its proper officer to do what is necessary is no argument for the proposition that an order cannot be made against a company.
For me, the reasons of Willmer L.J. in the first Penn-Texas case are cogent and compelling. He asked and answered the following question (at p. 264):
I pass, therefore, to the second question, namely, whether a limited company can be required to attend by its proper officer before the examiner for the purpose simply of producing documents. I am prompted to ask at the outset: “Why not?” It seems to me that this question depends entirely on the true construction of s. 1 of the Foreign Tribunals Evidence Act, 1856, which in terms authorises the court to command the attendance of any person or the production of any writings or other docu- ments. As a matter of construction, I entertain no doubt that the verb “command” governs both “the attendance of any person” and “the production of any writings or other documents”.
Turning to the Burchard case, he noted that it turned on an attempt to obtain discovery from two persons who were not parties to the action. He then went on to say this (at p. 265):
Nor do I think that the dicta of LORD ESHER, M.R., and FRY, L.J., can be relied on as laying down that in no circumstances can the court command production of documents from any person other than a witness in the case.
…
The power to command the production of documents is quite general, and the Act does not say that they can be required to be produced only by a witness giving oral evidence. The words of the Act are wide enough to embrace a command to any person shown to be in fact in possession of the documents required.
The English Court of Appeal returned to the matter in Panthalu v. Ramnord Research Laboratories, Ltd., [1965] 2 All E.R. 921, in relation to the application by a plaintiff in an action in India for the taking of commission evidence under the Evidence by Commission Act, 1859, being similar to the 1856 Act. The evidence was sought from named witnesses, employees of a company, and, concurrently, production of documents by those witnesses. The company did not object to the production but the defendants did. The Court ordered the production. In the course of his reasons, Sellers L.J. said this (at p. 923):
With regard to documents there is no specific request with regard to their production, but I agree with MEGAW, J., that this court is not precluded by that omission from ordering production of documents which the evidence makes relevant.
The real issue between the parties is whether the documents sought are ancillary to any evidence which may be given, or whether the plaintiff by this machinery is merely seeking discovery of documents which has been disallowed, at the present stage of the action, in India. Davies L.J. went further and purported to sum up the course of decision in the cases, previously canvassed in these reasons, as follows (at p. 927):
(i) The court will only order the production of documents when such production is ancillary to the oral testimony of a witness, (ii) The court will not make an order under the Act if what is being sought is in effect discovery of documents against a person not a party to the action. (iii) The court will not make an order for indirect or pretrial testimony, whether by oral evidence or by production of documents; it will only order direct testimony, oral or documentary, for the trial of the action.
American Express Warehousing, Ltd. v. Doe and Others, [1967] 1 Lloyd’s Rep. 222, also a judgment of the English Court of Appeal, is along the same lines. It affirms that letters rogatory will be supported for the oral examination of non-party witnesses who are asked to produce documents with them which are ancillary to their oral evidence where the evidence is required for trial and not for discovery. The difference between American procedure, under which discovery may be had from a non-party and English procedure which forbids this, was emphasized here as it had been in earlier cases. The Alberta Court of Appeal relied on this case, as it did on earlier cases, as laying down the rule under the English Act of 1856, comparable to s. 43 of the Canada Evidence Act, that production of documents will only be ordered if ancillary to oral evidence.
As I have already indicated, I much prefer the approach of Willmer L.J., one more consonant with the views expressed in this Court as to the desirability of a broad liberal construction of legislation such as s. 43 of the Canada Evidence Act in the interests of comity.
Finally, I wish to refer to the judgment of Steele J. in the Medical Ancillary Services case, supra. He held that s. 43 did not authorize an order, in support of letters rogatory, for the production of documents by a limited company, although this was permissible under the allegedly wider s. 60 of The Evidence Act of Ontario, R.S.O. 1970, c. 151 and also permissible under the English Act of 1856, although the company could not itself be required to give evidence as a witness.
Steele J. distinguished the English and Canadian provisions by reference not only to formulation but as well to difference to punctuation. For convenience of assessment, I set out the respective provisions:
English Act of 1856
Canada Evidence Act
I. Where, upon an Application for this Purpose, it is made to appear to any Court or Judge having Authority under this Act that any Court or Tribunal of competent Jurisdiction in a Foreign Country, before which any Civil or Commercial Matter is pending, is desirous of obtaining the Testimony in relation to such Matter of any Witness or Witnesses within the Jurisdiction of such first-mentioned Court, or of the Court to which such Judge belongs, or of such Judge, it shall be lawful for such Court or Judge to order the Examination upon Oath, upon Interrogatories or otherwise, before any Person or Persons named in such Order, of such Witness or Witnesses accordingly; and it shall be lawful for the said Court or Judge …or any other Judge having Authority under this Act, by any subsequent Order, to command the Attendance of any Person to be named in such Order, for the Purpose of being examined, or the Production of any Writings or other Documents to be mentioned in such Order, and to give all such Directions as to the Time, Place, and Manner of such Examination, and all other Matters connected therewith, as may appear reasonable and just; and any such Order may be enforced in like Manner as an Order made by such Court or Judge in a Cause depending in such Court or before such Judge.
43. Where, upon an application for that purpose, it is made to appear to any court or judge, that any court or tribunal of competent jurisdiction, in the Commonwealth and Dependent Territories, or in any foreign country, before which any civil, commercial or criminal matter is pending, is desirous of obtaining the testimony in relation to such matter, of a party or witness within the jurisdiction of such first mentioned court, or of the court to which such judge belongs, or of such judge, the court or judge may, in its or his discretion, order the examination upon oath upon interrogatories, or otherwise, before any person or persons named in the order, of such party or witness accordingly, and by the same or any subsequent order may command the attendance of such party or witness for the purpose of being examined, and for the production of any writings or other documents mentioned in the order, and of any other writings or documents relating to the matter in question that are in the possession or power of such party or witness. This is what Steele J. said about them (at p. 410):
In considering the power of the Court under the Canada Evidence Act, it should be noted that there are differences between it and the English Act, which differences are as follows: (1) Provisions between the power of the Court to order a witness to attend and the power of the Court to order the attendance of any person for examination or for the production of writings or documents is separated by a semicolon. This is not so in the Canada Evidence Act. (2) In the English Act, in the second part, reference is made to the examination of a person for the purpose of being examined or for production. In the Canada Act there are two differences. Reference is made only to a party or witness—not a person—and also in the Canada Act reference is made for the examination and production rather than the word or in the English Act. Having reviewed the reasoning in the Penn-Texas Corp. case, I am of the opinion that such reasoning is not applicable to the interpretation of the Canada Evidence Act with respect to the production of documents. The Canada Act refers only to a party or witness and uses the conjunctive word “and” with respect to production. I am, therefore, of the opinion that under this Act, it is only a witness who may be compelled to attend for examination that may be compelled to make productions.
The Ontario Act does not include the semicolon that is in the English Act but it does use the word “person” and the word “or” that are in the English Act. I am of the opinion that the reasoning in the Penn-Texas Corp. case is applicable to the Ontario Act, and, therefore, under s. 60 of the Ontario Act, a company may be ordered to make production on an application for letters rogatory.
The semicolon issue raised by Steele J. is not compelling in the light of the English statute on which he dwells for the distinctions he would make; it is the extreme of technicality to found a distinction between the presence of a semicolon in the English statute and a comma in the similar place in the Canadian provision. Nor am I taken by the contrast made by Steele J. between “party or witness”, in the Canadian Act and “person” in the English Act. In the opening words of the English Act the reference is to the testimony of any witness or witnesses, and the subsequent change of characterization by use of the word “person” is surely a neutral reference which envisages the person becoming a witness. What remains then by way of distinction is the word “or” in the English act and the word “and” in the Canadian Act when reference is made to the examination of witnesses and production of documents. Certainly, if some of the observations in the English cases relied on by Lieberman J.A. in the present case espouse his ancillary position, then what price the word “or”? If in those cases it can be read conjunctively, I can have little difficulty in reading “and” disjunctively. Take, for example, Criminal Code, s. 628 respecting subpoenas to attend to give evidence “and, if required”, to bring with him any relevant writings in his possession. Can it be said that “and” excludes a subpoena for production of documents alone?
Moreover, it appears to be the view of Salmon L.J. in the American Express Warehousing case, at p. 227, that a few questions of witnesses, asked to produce documents as requested under the foreign letters rogatory, would suffice to satisfy the requirement of making production ancillary to oral evidence. That, if true, surely reduces the ancillary doctrine to an absurdity.
Should the Order of Miller J. be Restored
Miller J. fully endorsed the considerations of comity that supported the lending of assistance to the United States Court, subject only to the established guidelines set out in various Canadian decisions for meeting Canadian requirements. These, in his view, included the following: (1) Was the evidence required for trial or for discovery? (2) Was the testimony relevant? (3) Was the inquiry of a scope that would not be allowed in Alberta? (4) Were the documents requested described or defined with adequate precision? As to (1), Miller J. was satisfied that the evidence was required for trial; as to (2), subject to a question concerning certain material picked up as a result of intercepted telephone conversations, relevancy was a matter for the commissioner taking the evidence (should an order be made) or for the United States Court or perhaps for both but it was not for him; as to (3), there was no offence to this guideline; and as to (4), the material requested in Exhibits 1(a), 1(b), 1(c) and 1(d) and the tapes mentioned in Exhibit 2 (subject to certain limitations to be discussed), could be sufficiently described to satisfy that guideline.
I wish to add a word on the respondents’ contention that the evidence was required for discovery and not for trial. The prosecution’s position was clear that the evidence was directed to the trial alone, but in accordance with the governing procedure, the accused were entitled to advance notice of the documents to be tendered at trial and could view them. There was no question hence of seeking information by way of discovery as ordinarily understood, and the accused could not properly assimilate the process, intended for their advantage, to something akin to discovery.
I am content to support Miller J. in his observations on the relevant guidelines that he chose to follow, subject to consideration of the position of tapes of certain intercepted telephone conversations.
The m