More On Can They Make You Talk?

Decades after the adoption of the Canadian Charter of Rights, and Freedoms, and after thousands of Miranda warnings on TV, most Canadians think they have a right to remain silent when the government comes after them.

To some extent, this is true–people pulled off the street by uniformed police almost never have a legal obligation to answer questions, with obvious exceptions when keeping silent would expose others to harm, such as the obligations to report spills and communicable diseases.

For routine matters, though, regulated businesses actually have very little privacy, or rights to silence, vis-à-vis their regulators. There are numerous reporting obligations for regulated communities, from income tax returns to the National Pollutant Release Inventory, with the census thrown in for good measure. Many statutes, such as the Ontario Water Resources Act and Environmental Protection Act, give inspectors the rights to enter private property, go through files, take samples, and ask questions, to confirm whether a regulated organization is complying with the law. However, the Charter establishes different rules once a regulator has reasonable and probable grounds to believe that a particular person or organization has committed an offence: see Hunter v. Southam Inc., 1984 CanLII 33 (S.C.C.), [1984] 2 S.C.R. 145, and Comité paritaire de l'industrie de la chemise v. Potash; Comité paritaire de l'industrie de la chemise v. Sélection Milton, 1994 CanLII 92 (S.C.C.), [1994] 2 S.C.R. 406. (An unsubstantiated complaint does not constitute "reasonable and probable grounds".) Once s/he has reasonable and probable grounds, a regulator needs prior judicial authorization to enter private property and to compel the production of evidence.

Do these rules, which govern the production of documents, also compel people to answer questions about possible offences?

For more than 20 years, there has been an uneasy tug of war about this between the Ministry of the Environment's desire to obtain evidence of environmental offences, and the reluctance of those facing the ministry's enforcement muscle to give them that evidence. The courts have upheld the rights of individuals and businesses to decline to answer such questions, except where there is a current emergency. That is, where the ministry requires information right now to deal with a spill or other environmental crisis that is underway, the businesses and individuals have had to comply. But where the ministry is simply seeking to force people to confess details of problems that have occurred in the past, people have had a right to remain silent.

In R. v. Inco1, an Ministry of the Environment investigator entered Inco property, and asserted that he had statutory power to compel company...

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