Our lives are affected each day by government. Indeed, if you have been stopped by a police officer for a traffic violation you know the feeling as the heart rate picks up or a little more perspiration glistens on the forehead. However, the average citizen may not be aware of the many statutes on the law books that give police officers and other officials of the government extensive powers to directly affect our lives and our livelihoods. A police officer may enter your home or place of business, take you into custody and seize materials, if he or she has a “reasonable belief” that an offence is occurring or has occurred. This is acceptable by most people’s standards because it is necessary to allow the police to have certain powers to investigate the commission of crimes, as defined by the Criminal Code of Canada. However, a review of the federal, provincial and territorial statutes makes it clear that there are extensive powers of entry and/or search and seizure with respect to matters that are not “crimes.” For example:
* The Income Tax Act permits entry onto premises and the seizure of records.
* The Combines Investigation Act contains extensive powers of this sort — just ask some of your friends who have been in the uranium business for some time. * The proposed revisions to the Ontario Mining Act gave extensive powers of entry and review of records to “inspectors” and then proceeded to designate everyone in sight as an inspector. In addition, an inspector was empowered to take along a third party adviser to assist in reviewing records — think about that one. How would you like such an adviser to turn out to be a direct or indirect competitor? The discussion draft of the proposed amendments was lacking in appropriate safeguards, even if the basic concept of wide entry powers was acceptable to the industry and the general public.
* Ontario’s Environmental Protection Act not only gives wide powers of entry and seizure, but goes one giant step further and gives the investigator the power to lay a charge of impeding his investigation. The threat of such a charge has been used even against lawyers trying to protect their clients’ legal rights. In certain circumstances, an inspector can even require a company to suspend operations immediately. Similar provisions are contained in the Canadian Environmental Protection Act soon to be proclaimed in force.
* Virtually all securities legislation provides officials with powers of entry and seizure and to set up special boards or commissions to deal with securities matters and the enforcement of relevant statutes.
These are just a few of many examples of the tendency of government to create special police to deal with particular areas of concern. With the increasing number of highly sophisticated businesses and industries, this tendency can be understood and possibly tolerated. However, the “police” should be required to exercise their new-found powers under strict and clear guidelines. In addition, they should be professionals knowledgeable about their particular area and the rights of citizens. Too often neither of these elements is present. So what is a person to do if, one day, an official or police officer comes knocking at his or her business or home?
First, no matter how extensive the offical’s powers appear to be (as gleaned from the official himself, the statutory provisions, the uniform of a police officer or the imposing looking document, usually a search warrant, that is presented to you), the law imposes upon that official certain restrictions within which he must act. In virtually all situations, the official cannot come in, take over and exclude you from your premises and your business. The official must exercise his powers with respect to a specifically identified matter, which must be identified to you. In other words, he cannot enter your premises and seize just anything at all or use the powers to “go on a fishing expedition.” These and other concepts may not appear in the relevant statutes, but they are contained in the common law and the Canadian Charter of Rights and Freedoms (and upheld by the Courts). They are, however, of no use to you unless you are aware of them and can use them. That is not to say that everyone should immediately run out and become a lawyer, but it does suggest that in this area some prior knowledge may pay dividends.
With legislation purporting to grant wide powers and the common law and the Charter apparently restricting these powers, you should learn to protect yourself. Here are a few basic things to think about:
* Make an immediate effort to inform yourself about the legislation that obviously affects your particular business, including the types of investigations that can be launched and the powers that are purported to be granted to officials. Your lawyer should be able to help in this regard and may even identify other legislation of which you should be aware. An awareness of potential danger areas enables you to develop procedures to reduce the danger of contravening the provisions of a statute and/or to establish procedures that will give you the best possible defence should a charge be laid. This latter point is particularly important for businesses, such as mining, that are especially sensitive to environmental matters (and therefore, the Environmental Protection Act). Under the epa, the establishment and implementation of a policy or procedures to prevent the release of pollutants into the environment is specifically required. Interestingly, the establishment and implementation of such a policy or procedures may at the same time provide a strong defence to a charge laid under the Act.
* If you are dealing with a large legal firm, make sure that you know the proper persons to call should a problem arise. Have your regular lawyer in the firm introduce you to these people. If you must get in touch with one of them (especially in off hours), you are not merely a voice on the phone. This would avoid any unnecessary delays.
If you have the misfortune of an official “visit,” above all else, do not panic. Be polite but firm and invite the official into your office to find out why he is there, what you are alleged to have done and what he wants. Also, make it known that you wish to contact your lawyer to have him present during any search or on-premises investigation. In most instances, the official will co-operate with you. But if he will not, and insists on proceeding before counsel arrives:
* make sure that your lawyer knows this and get some preliminary instructions over the telephone. This call to your lawyer can be made in the presence of the official without concern and, in all likelihood, your lawyer will speak with him;
* ascertain precisely what the complaint relates to and show the official only those files or materials that relate to the complaint. The search warrant will give you specifics and the official is restricted by its terms. Lacking a search warrant, the official must disclose under what authority he purports to act — this may mean another call to your lawyer;
* assign a senior employee to assist the official with your files and make certain that you ask for and receive copies of documents that the official intends to seize and that are important to the running of your business. Even though you may be under investigation, you still have to carry on your business. In addition, draw up a list of all documents taken;
* certain documents, such as your legal files, may be privileged. Your lawyer should have instructed you on what to do with respect to these files. Privilege is a legal concept that protects certain types of documents from seizure. Usually, if privilege is claimed, the relevant documents will be sealed and taken to a judge who will rule on the question of privilege;
* at all times be polite, co-operative and professional. It is often a good idea to give the official an office in which he can review the documents (and of which you have your list).
A lot of the above is just plain common sense and promotes use of the legal profession. B
ut should such a situation arise, your best and most needed friend (at least for the moment) will be a good lawyer. As distressing as this thought may be to some, the simple truth is that with potential penalties becoming more severe (fines may be as high as $1 million, with one- year jail terms attached) a knowledgeable lawyer will not only earn his fees, but maybe save you money or let you take a holiday of your choosing as to time, location and duration. In fact, after it is all over, you may even feel that the lawyer was worth it. Karl J. C. Harries is a graduate mining engineer and partner with the Toronto law firm of Fasken & Calvin. The information in this article is summary and general in nature and is not intended to be taken or acted upon as legal advice. — 30 —
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