Klein v. Bell

Klein v. Bell

Section 5 of the B.C. Evidence Act covers examinations for discovery and Order 31A r.370(c) is a valid rule of practice and procedure; however s.5 of the provincial Act is ultra vires to the extent that its proviso cannot validly operate to immunize answers from use in federal criminal proceedings, so in the absence of valid provincial protection the common law privilege against self-incrimination applies; a corporate officer may claim privilege for the company and personally but must swear his genuine belief that specific answers would tend to incriminate and may not shield company documents by asserting personal privilege when acting as custodian.

Citation
[1955] SCR 309
Parties
Appellants/defendants: Isadore Joseph Klein; Albert Loftus McLennan; George W. Norgan; Norman Harold Peters (deceased); United Distillers Of Canada Limited; United Distillers Limited; Duncan Harwood & Company Limited; John Dunbar & Company Limited; John Adams & Company Limited; Respondents/plaintiffs: Netta Bell; Angela Bell; Jack Bell; Nathan Investments Limited (In Voluntary Liquidation); Intervener: Attorney General of Canada; Intervener: Attorney General of British Columbia
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
6 April 1955
Procedural Posture
Civil Appeal (discovery; Privilege Against Self Incrimination) / Appeal to Supreme Court of Canada From Court of Appeal for British Columbia; Final Judgment on Appeal
Outcome
Appeal allowed in part; order of trial judge restored with specified modifications and certain matters remitted to the Court of Appeal for further handling
Legal Topics
Privilege Against Self Incrimination, Examination for Discovery, Validity of Provincial Evidence Legislation, Production of Documents, Corporate Privilege
Source Language
English
Criminal Law Evidence Law Civil Procedure Company Law Privilege Against Self Incrimination Examination for Discovery Validity of Provincial Evidence Legislation Production of Documents +1 more

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Parties

Isadore Joseph Klein; Albert Loftus McLennan; George W. Norgan; Norman Harold Peters (deceased); United Distillers Of Canada Limited; United Distillers Limited; Duncan Harwood & Company Limited; John Dunbar & Company Limited; John Adams & Company Limited

Appellants/defendants

Netta Bell; Angela Bell; Jack Bell; Nathan Investments Limited (In Voluntary Liquidation)

Respondents/plaintiffs

Attorney General of Canada

Intervener

Attorney General of British Columbia

Intervener

Procedural Posture

Civil Appeal (discovery; Privilege Against Self Incrimination) / Appeal to Supreme Court of Canada From Court of Appeal for British Columbia; Final Judgment on Appeal

Legal Issues

  1. 1 Whether s.5 of the Evidence Act (B.C.) applies to examinations for discovery
  2. 2 Whether Order 31A, r.370(c) is within provincial power as practice and procedure
  3. 3 Whether s.5 of the Evidence Act (B.C.) is ultra vires because its proviso attempts to affect criminal proceedings beyond provincial jurisdiction

Ratio Decidendi

Section 5 of the B.C. Evidence Act covers examinations for discovery and Order 31A r.370(c) is a valid rule of practice and procedure; however s.5 of the provincial Act is ultra vires to the extent that its proviso cannot validly operate to immunize answers from use in federal criminal proceedings, so in the absence of valid provincial protection the common law privilege against self-incrimination applies; a corporate officer may claim privilege for the company and personally but must swear his genuine belief that specific answers would tend to incriminate and may not shield company documents by asserting personal privilege when acting as custodian.

Court Disposition

Appeal allowed in part; order of trial judge restored with specified modifications and certain matters remitted to the Court of Appeal for further handling

Orders

  • The order of Clyne J. is restored with modifications: the named individual appellants shall, on continuation of their discovery examinations, answer the previously refused questions and produce specified documents except where a proper sworn claim of privilege is made seriatim
  • Reference to Norman H. Peters is to be struck out and an officer of United Distillers of Canada Ltd. substituted; that officer must answer questions and produce documents subject to properly made claims of privilege