Comité paritaire de l'industrie de la chemise v. Potash; Comité paritaire de l'industrie de la chemise v. Sélection Milton

Comité paritaire de l'industrie de la chemise v. Potash; Comité paritaire de l'industrie de la chemise v. Sélection Milton
Collection
Supreme Court Judgments
Date
1994-06-23
Report
[1994] 2 SCR 406
Case number
23083
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 23083
Decision Content
Comité paritaire de l'industrie de la chemise v. Potash; Comité paritaire de l'industrie de la chemise v. Sélection Milton, [1994] 2 S.C.R. 406
Comité paritaire de l'industrie
de la chemise Appellant
and
The Attorney General of Quebec Appellant
v.
Jonathan Potash Respondent
and between
Comité paritaire de l'industrie
de la chemise Appellant
and
The Attorney General of Quebec Appellant
v.
Sélection Milton Respondent
and
The Attorney General for Ontario,
the Attorney General for Saskatchewan,
the Attorney General for Alberta and
the Association des comités paritaires du
Québec Inc. Interveners
Indexed as: Comité paritaire de l'industrie de la chemise v. Potash; Comité paritaire de l'industrie de la chemise v. Sélection Milton
File No.: 23083.
Hearing and judgment: January 27, 1994.
Reasons delivered: June 23, 1994.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for quebec
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search or seizure ‑‑ Inspections ‑‑ Powers of inspection of an agency responsible for implementing a government decree in a regulated industrial sector ‑‑ Whether these powers of inspection, conferred by a provincial statute, infringe s. 8 of the Canadian Charter of Rights and Freedoms ‑‑ Act respecting Collective Agreement Decrees, R.S.Q., c. D‑2, s. 22(e).
Civil rights ‑‑ Unreasonable search or seizure ‑‑ Inspections ‑‑ Powers of inspection of an agency responsible for implementing a government decree in a regulated industrial sector ‑‑ Whether these powers of inspection, conferred by a provincial statute, infringe s. 24.1 of the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 ‑‑ Act respecting Collective Agreement Decrees, R.S.Q., c. D‑2, s. 22(e).
Following a complaint, the appellant Comité paritaire was informed that work had been given sewing shirts with the brand of the respondent Sélection Milton to employees who were not paid. Inspectors from the Comité paritaire went to the respondent's premises on two occasions to obtain a list of the shirt sewing subcontracts given out by the respondent, see the respondent's pay register and visit its workshop in order to meet with the employees. Under the second paragraph of s. 22(e) of the Act respecting Collective Agreement Decrees ("ACAD"), inspectors "may, as of right and at any reasonable time, examine the registration system, the compulsory register and the pay‑list of any employer, take copies or extracts therefrom, verify as regards any employer and any employee the rate of wage, duration of work, apprenticeship system and observance of the other provisions of the decree [and] require . . . all information deemed necessary". The respondent Potash, representing Sélection Milton, refused to grant the inspectors' requests on the ground that they had no search warrant. Proceedings were then brought against the respondents pursuant to s. 33 ACAD and the respondents were fined for having obstructed the inspection. The Court of Québec concluded that s. 22(e) did not infringe either s. 24.1 of the Quebec Charter of Human Rights and Freedoms or s. 8 of the Canadian Charter of Rights and Freedoms . On appeal by trial de novo, the Superior Court upheld this judgment, but the Court of Appeal allowed the respondents' appeal and rendered a verdict of not guilty. The court concluded that the second paragraph of s. 22(e) is inconsistent with s. 24.1 of the Quebec Charter and s. 8 of the Canadian Charter since it does not contain a requirement of reasonable and probable grounds to believe that the inspected employer is in fact covered by the decree.
Held: The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin and Iacobucci JJ.: The powers of inspection set out in the second paragraph of s. 22(e) ACAD are contemplated by s. 8 of the Canadian Charter . The power to make copies of documents is analogous to that of requiring documents to be produced and constitutes a seizure within the meaning of s. 8 . As for the other inspection powers set out in the second paragraph, they may be assimilated to a search within the meaning of the same section. The visit to the premises is the foundation of the power to examine specific documents, verify certain working conditions, and require information. Despite being less invasive than a search, inspection is unquestionably an "intrusion".
These powers of inspection are reasonable and do not infringe s. 8 . The ACAD is a regulatory statute whose purpose is to ensure decent working conditions in certain sectors of industry where employees are among the most vulnerable. The inspection powers set out in this Act enable the parity committees to monitor compliance by employers with the various decrees and observance of the working conditions they impose. The need for such powers is clear, especially since compliance with the standards imposed by the decrees depends first and foremost on employer honesty. Given that employers' activities are extensively regulated by the state, the reasonable expectations of privacy they may have with respect to the documents mentioned in s. 22(e), whose content is specifically provided for by the ACAD for professional employers, or with respect to the premises where an activity subject to specific standards is conducted, are considerably lower. Moreover, the particular limits placed on the inspection scheme protect, so far as possible, the right to privacy of the individuals affected. Inspectors may not make copies of any documents other than those mentioned in the second paragraph. They may not force an entry into a workplace if the employer refuses to admit them; they must rather bring proceedings for obstruction. The possibility that certain inspections may take place at the home of the employer or of the employees, when it coincides with their workplace, does not make the inspection powers less reasonable. These powers are sufficiently circumscribed by the nature of the persons affected ‑‑ the employer and employee ‑‑ to attain the purpose of the ACAD. The powers to check certain information and to require information deemed necessary are essential to the carrying out of the parity committees' function. These powers must be exercised in accordance with the purpose of the ACAD and it will always be possible to challenge abuses. Such a possibility does not alter the validity of the legislative scheme and the balance it strikes between the interests of society and the individual's right to privacy. Finally, the second paragraph of s. 22(e) is not unreasonable by reason of its application to all employers, and not only those that inspectors have reasonable grounds to believe are subject to a decree. Within the limits of their respective areas of application, the decrees are binding on all employers. If the inspection powers were not applicable to all employers, it would be impossible to verify whether some of them were covered by a given decree or acted in compliance with the conditions it imposes.
The criteria set out in Hunter, which were developed in a very different context, are not applicable. The exercise of the powers of inspection set out in the second paragraph of s. 22(e) does not carry with it the stigmas normally associated with criminal investigations and their consequences are less draconian. The possibility that those responsible for enforcing a statute will uncover in the course of inspections facts that point to a violation does not alter the underlying purpose behind the exercise of the powers of inspection. The same is true when the enforcement is prompted by a complaint. The complaint system is a practical means not only of checking whether contraventions of the ACAD have occurred, but also of deterring them. In view of the important purpose of regulatory legislation, the need for powers of inspection and the lower expectations of privacy, a proper balance between the interests of society and the rights of individuals does not require, in addition to the legislative authority, a system of prior authorization.
The preceding analysis also applies to s. 24.1 of the Quebec Charter.
Per Sopinka, L'Heureux‑Dubé, Gonthier, McLachlin and Major JJ.: The powers conferred on inspectors by the second paragraph of s. 22(e) ACAD are subject to the constitutional protection of s. 8 of the Canadian Charter . The right to obtain information from the employer and employees, and the right to examine documents and make copies of them, constitute a "seizure" within the meaning of s. 8 and, although it is an administrative inspection, the right of access by inspectors to work premises is comparable to a "search" within the meaning of this section. These searches and seizures are reasonable and do not infringe s. 8 . The ACAD regulates certain industrial sectors through its mechanism for extending collective agreements by decree. Its purpose is to guarantee employees working in these sectors of activity minimum working conditions. This social objective is very important, as the employees covered by the decrees are among the most vulnerable. In this context, the powers of inspection of the parity committees are essential to ensure implementation of the decrees, particularly as compliance with the decrees is primarily a matter of honesty and integrity on the part of employers.
The expectations of privacy which employers covered by the disputed provision may have are not very high. The documents that may be examined or reproduced under s. 22(e) relate only to the coverage of employers by the ACAD and various decrees. The keeping of most of these documents is in any case required by the ACAD or other legislation. These documents are commercial in nature, and the mere possibility of seizure of information of a personal nature cannot by itself determine whether the powers conferred by the ACAD are reasonable. The ACAD does not authorize the seizure of documents of a personal nature, and in the event that such documents would be seized, one could always apply to the courts for an appropriate remedy. Finally, the expectations of privacy which employers may have are further reduced by the fact that the powers of inspection are exercised at the employees' workplace, even discounting the fact that the right of access conferred by the ACAD is relatively limited.
The standard of reasonableness is less strict in a matter involving the regulation of an industrial sector than it is in criminal matters. Since the ACAD is regulatory legislation providing for administrative inspections in a regulated industrial sector, the rules in Hunter, requiring a system of prior authorization based on the existence of reasonable and probable grounds, do not apply. Administrative inspections involving a visit to the premises without prior authorization are not unreasonable in the context of the ACAD. The visit of the premises must be necessary in order to properly serve the regulatory objective and be rationally connected to the main purpose of the Act. Moreover, the ACAD significantly circumscribes the manner in which the inspection will take place. The visit must be made at a reasonable time and takes place at the employees' workplace. The inspectors cannot freely engage in a search of the premises. Access to the workplace is permitted solely in order to consult certain documents and obtain information from the employer and employees. Nor does the ACAD permit inspectors to use force to gain access to the workplace. In the event of a refusal by the employer, the inspectors can only lay charges for obstruction of an inspection. With respect to visits to a workplace for administrative purposes, the powers conferred by the disputed provision imply only a minimum and very circumscribed intrusion in a context in which employers have a lower expectation of privacy. It 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. Finally, the rule in U.S. jurisprudence requiring that a warrant be obtained before undertaking an administrative inspection, a rule which has now been abandoned in practice, is not desirable here.
Furthermore, an inspection resulting from a complaint made by an employee is insufficient in itself to justify inspectors being subject to the requirements of Hunter. There is an important distinction between having reasonable and probable grounds to believe that an offence was committed and simply having an information. An inspection will often be necessary before it is even possible to establish the existence of reasonable grounds to believe that a breach of the law has occurred. This is the position mandated by the fact that the ACAD covers only a regulated industrial sector. Finally, a complaint such as the one filed here which is proved valid once the inspection is completed leads not to a penal proceeding but to a civil claim for wages. Civil actions are clearly not contemplated in Hunter.
Reasonable and probable grounds to believe that the "inspected" employer is in fact covered by the decree are not essential to the constitutional validity of the second paragraph of s. 22(e). Even if the powers conferred by that paragraph may potentially be exercised against all employers and not merely those subject to a decree, these powers are not unreasonable. All employers, as well as all employees, come within the ambit of the ACAD, because it is the nature of the work done by an employee and not the employer's type of business which matters in determining whether they are subject to the application of the decrees. In view of the particular scheme of the ACAD, inspectors must have the means of determining whether a given employer is in fact subject to a decree. Such a determination is sometimes difficult without prior inspection given the technical nature of the provisions for the application of decrees. In addition, it should be assumed that, because of their particular expertise on a parity committee, inspectors will, in most cases, conduct inspections at the premises of employers which they suspect are subject to a decree. In this way, not only will abuses be avoided but infringements of reasonable expectations of privacy will be minimal.
The analytical approach and the tests developed in relation to s. 8 of the Canadian Charter apply equally to s. 24.1 of the Quebec Charter. According to this analysis, the second paragraph of s. 22(e) does not infringe s. 24.1.
The request for the production of documents provided for in the fourth paragraph of s. 22(e) constitutes a "seizure" within the meaning of s. 24.1 of the Quebec Charter, but this seizure is reasonable and does not infringe s. 24.1. The fourth paragraph places adequate limits on the documents of which the inspectors have the power to request consultation or production.
Cases Cited
By La Forest J.
Distinguished: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; referred to: R. v. Dyment, [1988] 2 S.C.R. 417; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; Quebec (Construction Industry Commission) v. M.U.C.T.C., [1986] 2 S.C.R. 327.
By L'Heureux‑Dubé J.
Distinguished: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, aff'g (1983), 147 D.L.R. (3d) 420, rev'g (1982), 136 D.L.R. (3d) 133; referred to: R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; Ontario Chrysler (1977) Ltd. v. Ontario (Director of the Consumer Protection Division of the Ministry of Consumer & Commercial Relations) (1990), 67 D.L.R. (4th) 148; Johnson v. Ontario (Minister of Revenue) (1990), 75 O.R. (2d) 558; Comité paritaire de l'industrie du meuble v. Métal par Dimension Ltée, [1989] R.J.Q. 1442; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Dyment, [1988] 2 S.C.R. 417; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Dersch, [1993] 3 S.C.R. 768; Stelco Inc. v. Canada (Attorney General), [1990] 1 S.C.R. 617; Re Belgoma Transportation Ltd. and Director of Employment Standards (1985), 20 D.L.R. (4th) 156; R. v. Quesnel (1985), 24 C.C.C. (3d) 78, leave to appeal refused, [1986] 1 S.C.R. xiii; Bertram S. Miller Ltd. v. R., [1986] 3 F.C. 291; Chabot v. Manitoba Horse Racing Commission, [1987] 1 W.W.R. 149, leave to appeal refused, [1987] 1 S.C.R. xi; R. v. Bichel, [1986] 5 W.W.R. 261; R. v. J.M.G. (1986), 29 C.C.C. (3d) 455, leave to appeal refused, [1987] 1 S.C.R. ix; 143471 Canada Inc. v. Quebec (Attorney General), [1994] 2 S.C.R. 339; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; R. v. Keegstra, [1990] 3 S.C.R. 697; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; R. v. Seaboyer, [1991] 2 S.C.R. 577; Young v. Young, [1993] 4 S.C.R. 3; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Katz v. United States, 389 U.S. 347 (1967); Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967); See v. City of Seattle, 387 U.S. 541 (1967); Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970); United States v. Biswell, 406 U.S. 311 (1972); Marshall v. Barlow's Inc., 436 U.S. 307 (1978); Donovan v. Dewey, 452 U.S. 594 (1981); New York v. Burger, 482 U.S. 691 (1987); Quebec (Construction Industry Commission) v. M.U.C.T.C., [1986] 2 S.C.R. 327; Comité Paritaire de l'Industrie de l'Imprimerie de Montréal et du District v. Dominion Blank Book Co., [1944] S.C.R. 213; Laiterie Perrette Ltée v. Comité paritaire de l'industrie de l'automobile de Montréal et du district, [1988] R.J.Q. 76; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790.
Statutes and Regulations Cited
Act respecting Collective Agreement Decrees, R.S.Q., c. D‑2, ss. 1(f), (g), 2, 11, 14, 16, 22(a) [am. 1984, c. 45, s. 15], 22(e) [idem; am. 1986, c. 95, s. 128], 24, 33 [am. 1984, c. 45, s. 24].
Act respecting Labour Standards, R.S.Q., c. N‑1.1.
Act respecting Occupational Health and Safety, R.S.Q., c. S‑2.1.
Act respecting the Ministère du Revenu, R.S.Q., c. M‑31, s. 34 [am. 1983, c. 43, s. 7; idem c. 49, s. 40; am. 1991, c. 67, s. 575].
Act to amend Various Legislation respecting Labour Relations, S.Q. 1984, c. 45, s. 35.
Canadian Charter of Rights and Freedoms, ss. 1 , 8 , 33 .
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 8, 24.1 [en. 1982, c. 61, s. 7].
Code of Penal Procedure, R.S.Q., c. C‑25.1, ss. 95 et seq. [en. 1987, c. 96].
Decree respecting the Men's and Boys' Shirt Industry, R.R.Q. 1981, c. D‑2, r. 11, ss. 1.01 [repl. (1984) 116 O.G. II 1334, s. 1 ], 1.02, 6.01 [am. idem, s. 4].
Decree respecting the Women's Clothing Industry, R.R.Q. 1981, c. D‑2, r. 26, ss. 2.02 [repl. (1989) 121 O.G. II 2329, s. 2; am. (1992) 124 O.G. II 4634, s. 3], 2.04 [am. (1989) 121 O.G. II 2329, s. 3; am. (1992) 124 O.G. II 4634, s. 5].
Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .), s. 230 .
Labour Code, R.S.Q., c. C‑27.
Regulation respecting a Registration System or the Keeping of a Register, R.R.Q. 1981, c. N‑1.1, r. 6, s. 1.
Summary Convictions Act, R.S.Q., c. P‑15 [repl. 1987, c. 96, s. 374], s. 8.
Unemployment Insurance Act, R.S.C., 1985, c. U‑1, s. 58 [am. 1991, c. 49, s. 227].
United States Constitution, Fourth Amendment.
Authors Cited
Angers, Lucie. "À la recherche d'une protection efficace contre les inspections abusives de l'État: la Charte québécoise, la Charte canadienne et le Bill of Rights américain" (1986), 27 C. de D. 723.
Maybank, Robert C. "Constitutional requirements for administrative warrants in Canada and the United States: Opposite trends?" (1989), 39 U.T.L.J. 55.
APPEAL from a judgment of the Quebec Court of Appeal, [1992] R.J.Q. 1743, 75 C.C.C. (3d) 367, 49 Q.A.C. 81, 10 C.R.R. (2d) 335, reversing a judgment of the Superior Court, [1989] R.J.Q. 1575, affirming a judgment of the Court of Québec, J.E. 89‑227, D.T.E. 89T‑80, declaring the respondents guilty of offences under s. 33 of the Act respecting Collective Agreement Decrees. Appeal allowed.
Michelle LeFrançois, for the appellant the Comité paritaire de l'industrie de la chemise.
Monique Rousseau and Gilles Laporte, for the appellant the Attorney General of Quebec.
Jean Dagenais, Avrum P. Orenstein and Susan Orenstein Little, for the respondents.
Leah Price, for the intervener the Attorney General for Ontario.
Thomson Irvine, for the intervener the Attorney General for Saskatchewan.
Robert C. Maybank, for the intervener the Attorney General for Alberta.
François Beauvais and Diane Fortier, for the intervener the Association des comités paritaires du Québec Inc.
English version of the judgment of Lamer C.J., and La Forest, Sopinka, Cory, McLachlin and Iacobucci JJ. delivered by
La Forest J. ‑‑ I have had the advantage of reading the reasons of my colleague L'Heureux‑Dubé J. and find it unnecessary to repeat the facts and judicial history. Although I would dispose of the appeal in the manner she proposes, I consider it advisable to write my own reasons.
The appeal in this Court is limited to the validity of the second paragraph of s. 22(e) of the Act respecting Collective Agreement Decrees, R.S.Q., c. D‑2 (hereinafter the "Act"), in light of s. 8 of the Canadian Charter of Rights and Freedoms and s. 24.1 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C‑12. The following analysis, though based on s. 8 of the Canadian Charter , also applies to s. 24.1 of the Quebec Charter. The second paragraph of s. 22(e) of the Act provides:
The general manager, the secretary and any inspector may, as of right and at any reasonable time, examine the registration system, the compulsory register and the pay‑list of any employer, take copies or extracts therefrom, verify as regards any employer and any employee the rate of wage, duration of work, apprenticeship system and observance of the other provisions of the decree; require, even under oath and privately, from any employer or employee, even at the place of work, all information deemed necessary, and, such information having been written down, exact the signature of the person concerned;
These powers of inspection, the exercise of which presupposes a visit to the premises, entail the consultation and copying of specific documents (the registration system, compulsory register and pay‑list), the verification of certain working conditions (wage rate, duration of work, apprenticeship system, and so on) and the collecting of information. The issue is whether these powers are contemplated by s. 8 of the Charter , and, if so, whether they are reasonable having regard to any expectations of privacy the respondents may have.
Are the Powers of Inspection Contemplated by Section 8 of the Charter ?
The question whether the power to make copies of documents specifically mentioned in the provision comes within the ambit of s. 8 of the Charter can be disposed of at once. In light of the definition I gave in R. v. Dyment, [1988] 2 S.C.R. 417, and restated in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, and R. v. Colarusso, [1994] 1 S.C.R. 20, it is clear that the second paragraph of s. 22(e) of the Act authorizes a "seizure". This power is analogous to that of requiring documents to be produced, which this Court has so characterized, in particular in Thomson Newspapers, supra, and R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627.
The characterization of the other inspection powers set out in the second paragraph of s. 22(e) of the Act is somewhat more subtle. The term "perquisition" referred to in the French version of s. 8 of the Charter ‑‑ "search" in the English version ‑‑ is at least in its ordinary sense reserved for investigations of a criminal nature. Lucie Angers, in "À la recherche d'une protection efficace contre les inspections abusives de l'État: la Charte québecoise, la Charte canadienne et le Bill of Rights américain" (1986), 27 C. de D. 723, distinguishes an inspection from a search as follows (at pp. 727‑28):
[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.
The visit to the premises, which is the foundation of the other powers set out in the second paragraph of s. 22(e) of the Act, is not fortuitous. The legislature itself has recognized its importance, by enacting a separate paragraph for the production of documents. The evidence shows that in the vast majority of cases the inspectors prefer to visit employers and employees rather than require the production of documents, and for good reason. It is by visiting the premises that the parity committees can realistically carry out the mandate they are given by the Act ‑‑ administering the decrees ‑‑ by checking the nature of the work done and by obtaining information from those concerned as to whether working conditions are being observed. While the inspectors do not have the option of "searching", they can nevertheless examine the work environment and direct the inspection accordingly. From this standpoint, inspections and searches have a common basis: an active quest for the truth.
Section 8 of the Charter , which guarantees protection against unreasonable search and seizure, must be construed to carry out its purpose. In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court noted that the purpose of s. 8 was to protect the individual's reasonable expectations of privacy from unjustified state intrusion. Despite its less invasive nature, inspection is unquestionably an "intrusion". An arbitrary demarcation line drawn according to the degree of the intrusion, for purposes of determining whether the powers authorizing the state's actions are within the scope of the constitutional guarantee, is not desirable at this stage. It would be a matter of concern if the constitutional validity of an intrusion of the kind at issue in this appeal were to be placed beyond the reach of judicial review. In the circumstances, I am of the view that the inspection powers set out in the second paragraph of s. 22(e) of the Act may be assimilated to a search within the meaning of s. 8 of the Charter . Naturally, the scope of the constitutional guarantee may vary depending on whether a search or an inspection is involved. That is what I now propose to consider.
Are the Powers of Inspection Reasonable?
On the issue of determining the reasonableness of the powers of inspection, the respondents simply disputed the application of the second paragraph of s. 22(e) of the Act to all employers, conceding their validity with respect to professional employers or employers that inspectors have reasonable grounds to believe are subject to a decree. That is in essence what the Court of Appeal decided: [1992] R.J.Q. 1743, 75 C.C.C. (3d) 367, 49 Q.A.C. 81, 10 C.R.R. (2d) 335. The appellants and the interveners, however, raised the more general issue of the legality of powers of inspection without prior authorization in light of s. 8 of the Charter . Although this Court has never expressly decided the point, I referred to it in Thomson Newspapers, supra, at pp. 506‑7:
In a modern industrial society, it is generally accepted that many activities in which individuals can engage must nevertheless to a greater or lesser extent be regulated by the state to ensure that the individual's pursuit of his or her self‑interest is compatible with the community's interest in the realization of collective goals and aspirations. In many cases, this regulation must necessarily involve the inspection of private premises or documents by agents of the state. The restaurateur's compliance with public health regulations, the employer's compliance with employment standards and safety legislation, and the developer's or homeowner's compliance with building codes or zoning regulations, can only be tested by inspection, and perhaps unannounced inspection, of their premises. Similarly, compliance with minimum wage, employment equity and human rights legislation can often only be assessed by inspection of the employer's files and records. [Emphasis added.]
The federal and provincial legislatures have, in a number of statutes, included powers of inspection similar to those whose validity is challenged by the respondents in the present case. These statutes deal with areas as diverse as health, safety, the environment, taxation and labour. The common thread is found in their underlying purpose: harmonizing social relations by requiring observance of standards reflecting the sometimes delicate balance between individual rights and the interests of society. Inspection ‑‑ or the threat of it ‑‑ especially if it is done without notice, is a practical means of encouraging such observance. The Act respecting Collective Agreement Decrees takes this approach. Its underlying purpose is to ensure decent working conditions in certain sectors of industry (textiles, clothing, shoes, furniture, and so on) where employees are among the most vulnerable. The need to include powers of inspection in the Act is readily understandable, especially since compliance with the standards imposed by the decrees depends first and foremost on employer honesty. The statistics indicate the routine, not to say widespread, use of such powers: in 1991, 105 inspectors, responsible for enforcing some thirty decrees covering over 140,000 employees and 16,000 employers, carried out over 53,000 inspections.
While the importance of the purpose and need of the powers of inspection cannot be doubted, they must still be balanced against the individual's expectations of privacy. I note in passing that the wording of s. 8 of the Charter does not prohibit inspections without prior authorization. It simply imposes a requirement of "reasonableness". Consequently, since the Fourth Amendment to the United States Constitution expressly contemplates use of a warrant, the rules developed by the American courts should be applied with caution.
This Court has pointed out on several occasions that the scope of a constitutional guarantee, like the balancing of the collective and individual rights underlying it, varies with the context. In Quebec, as everywhere else in the country, employers are subject to strict regulations governing taxation, social affairs, health, safety and labour standards: see in particular the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp .); the Act respecting the Ministère du Revenu, R.S.Q., c. M‑31; the Unemployment Insurance Act, R.S.C., 1985, c. U‑1; the Act respecting Occupational Health and Safety, R.S.Q., c. S‑2.1; the Act respecting Labour Standards, R.S.Q., c. N‑1.1; the Labour Code, R.S.Q., c. C‑27, as well as the numerous regulations adopted thereunder. The Act respecting Collective Agreement Decrees falls into the last category. Through a mechanism extending collective agreements, it provides for the imposition of previously negotiated working conditions on a given industry. For example, the Decree respecting the Men's and Boys' Shirt Industry, R.R.Q. 1981, c. D‑2, r. 11, which the appellant parity committee is responsible for enforcing, requires employers subject to it to observe conditions regarding the normal work week, rest periods, overtime, wages, seniority, social security, annual leave, holidays, absences, individual contracts and work at home or by the piece.
In a context in which their occupations are extensively regulated by the state, the reasonable expectations of privacy employers may have with respect to documents whose content is specifically provided for by the Act, or the premises where an activity subject to specific standards is conducted, are considerably lower. I made this point in Thomson Newspapers, supra, where I wrote (at p. 507):
It follows that there can only be a relatively low expectation of privacy in respect of premises or documents that are used or produced in the course of activities which, though lawful, are subject to state regulation as a matter of course. In a society in which the need for effective regulation of certain spheres of private activity is recognized and acted upon, state inspection of premises and documents is a routine and expected feature of participation in such activity.
It is thus impossible, without further qualification, to apply the strict guarantees set out in Hunter v. Southam Inc., supra, which were developed in a very different context. The underlying purpose of inspection is to ensure that a regulatory statute is being complied with. It is often accompanied by an information aspect designed to promote the interests of those on whose behalf the statute was enacted. The exercise of powers of inspection does not carry with it the stigmas normally associated with criminal investigations and their consequences are less draconian. While regulatory statutes incidentally provide for offences, they are enacted primarily to encourage compliance. It may be that in the course of inspections those responsible for enforcing a statute will uncover facts that point to a violation, but this possibility does not alter the underlying purpose behind the exercise of the powers of inspection. The same is true when the enforcement is prompted by a complaint. Such a situation is obviously at variance with the routine nature of an inspection. However, a complaint system is often provided for by the legislature itself as it is a practical means not only of checking whether contraventions of the legislation have occurred but also of deterring them.
The inspection powers set out in the second paragraph of s. 22(e) of the Act enable the parity committees to monitor compliance by employers with the various decrees and observance of the working conditions they impose. The scope of the regulatory offences enacted in the Act is limited; the corresponding penalties, exclusively in the form of fines, are very modest. When an inspection reveals a breach of a decree, it generally leads to a civil action to claim wages, brought by the parity committee on behalf of the aggrieved employee pursuant to s. 22(a) of the Act. It is significant that such remedy, which lies at the core of the system set up by the legislature, appears in the same provision as the inspection powers. Wages are unquestionably the most important condition for workers covered by the decrees. In 1991, inspectors recovered over $2,400,000 in wages through the use of the powers set out in s. 22 of the Act. It is clear that the Court did not have such enforcement measures in mind when it postulated the system of prior authorization in Hunter v. Southam Inc., supra. Furthermore, parity committees are specifically required in the course of their duties to consider complaints submitted to them by an employer or an employee, and no evidence is allowed to show that an action or prosecution was brought as a result. For 1991 alone there were 9,357 inspections resulting from complaints by employees. It would be undesirable to limit the use of the powers of inspection when they follow a complaint, as they are all the more necessary in such cases.
In view of the important purpose of regulatory legislation, the need for powers of inspection, and the lower expectations of privacy, a proper balance between the interests of society and the rights of individuals does not require, in addition to the legislative authority, a system of prior authorization. Of course the particular limits placed on the inspection scheme must, so far as possible, protect the right to privacy of the individuals affected. In this regard the respondents objected to the scope of the second paragraph of s. 22(e) of the Act, which makes all employers subject to the inspection powers. They argued that the latter should only be exercised where there are reasonable grounds to believe that the employers are subject to a decree. This argument, which is the crux of the dispute between the parties, must be rejected.
The Act applies to all employers. Its purpose in distinguishing "employers" from "professional employers", namely those who usually have employees in their employ for any kind of work which is the subject of a decree, is solely to impose additional duties on the latter ‑‑ the keeping of various records, submission of a monthly report to the parity committee, joint and several liability with subcontractors for the payment of wages, and so on; but this distinction in no way alters the scope of the decrees, which are binding on all employers within the limits of their respective areas of application. That is why an employer who has one of his employees do work of the kind contemplated in a decree must observe the conditions it imposes: see Quebec (Construction Industry Commission) v. M.U.C.T.C., [1986] 2 S.C.R. 327. In practice an employer may be subject to several decrees; he may even be subject to a decree in respect of a marginal or indeed exceptional part of his activities. Section 1.02 of the Decree respecting the Men's and Boys' Shirt Industry makes this quite clear:
1.02. The work contemplated by this Decree includes the work of all persons performing any or many of the operations being part of, related to or connected with the manufacturing or producing of the above described shirts and garments, whether the said operations are defined or not in the present Decree, whether said operations are performed completely or in part by the same employer or by several employers, whether they are performed completely or in part in one or several trade plants, private, industrial, commercial or other establishments.
It is of little consequence whether such operations constitute the principal business of the employer or are accessory or complementary to any other business or enterprise and whether the said shirts and garments are manufactured or produced for the purpose of sale to other consumers or for the exclusive use of the employer. [Emphasis added.]
The appellants and the intervener, the Association des comités paritaires du Québec Inc., also noted the difficulties associated with determining whether employers are subject to the various decrees, as a result of the technical definition of their scope. The examples cited by my colleague speak for themselves. In the present case the respondents maintained that they were not covered by the Decree respecting the Men's and Boys' Shirt Industry; but how could the inspectors realistically have determined whether they were covered without an inspection, especially since the evidence indicated that the respondent Sélection Milton was in fact displaying boys' shirts i