what may be called ordinary domestic offences. Parlia- [651] ment has seen fit to mark out this subject in The Official Secrets Act, 1939, which is not limited to the existence of war, as one in which the safety and interests of the State are to be regarded as in danger because of which special provisions are deemed necessary. Some of the provisions of the statute, which is modelled upon the British Acts of 1911 and 1920 (1-2 Geo. V., cap 28, and 10-11 Geo V., cap 75), illustrate what we have just said and should be referred to. By subsection (1) of section (3) it is enacted that

If any person for any purpose prejudicial to the safety or interests of the State,

1

(b) makes any sketch, plan, model or note which is calculated to be or might be or is intended to be directly or indirectly useful to a foreign power; or

(c) obtains, collects, records, or publishes, or communicates to any other person any secret official code word, or pass word, or any sketch, plan, model, article, or note or other document of information which is calculated to be or might be1 or is intended to be directly or indirectly useful to a foreign power,

such person commits an offense under the Statute.

The people of Canada in self-protection have, through Parliament, also enacted strong presumptions against persons charged under The Official Secrets Act shifting the burden of proof from the State to the accused, and in such cases it is for the person, against whom an offence under the statute is alleged, to establish his innocence to the reasonable satisfaction of the tribunal charged with the responsibility of deciding. We refer to the following provisions:

Sec. 3 (2). On a prosecution under this section, it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case, or his conduct or his known character safety or interests of the State;

...

as proved, it appears that his purpose was a purpose prejudicial to the [652] (3) In any proceedings against a person for an offence under this section, the fact that he has been in communication with, or attempted to communicate with, an agent of a foreign power, whether within or without Canada, shall be evidence that he has, for a purpose prejudicial to the safety or interests of the State, obtained or attempted to obtain information which is calculated to be or might be1 or is intended to be directly or indirectly useful to a foreign power.

(4) For the purpose of this section, but without prejudice to the generality of the foregoing provision

(a) a person shall, unless he proves the contrary,' be deemed to have been in communication with an agent of a foreign power if

(i) he has, either within or without Canada, visited the address of an agent of a foreign power or consorted or associated with such agent; or

(ii) either within or without Canada, the name or address of, or any information regarding such an agent has been found in his possession, or has been supplied by him to any other person, or has been obtained by him from any other person;

(b) the expression 'an agent of a foreign power' includes any person who is or has been or is reasonably suspected of being or having been employed by a foreign power either directly or indirectly for the purpose of committing an act, either within or without Canada, prejudicial to the safety or interests of the State, or who has or is reasonably suspected of having, either within or without Canada, committed, or attempted to commit, [653] such an act in the interests of a foreign power;

(c) any address, whether within or without Canada, reasonably suspected of being an address used for the receipt of communications intended for an agent of a foreign power, or any address at which such an agent resides, or to which he resorts for the purpose of giving or receiving communication, or at which he carries on any business, shall be deemed to be the address of an agent of a foreign power, and communi

Italics by royal commission.

cations addressed to such an address to be communications with such an agent.

Sec. 4 (3). If any person receives any secret official code word, or pass word, or sketch, plan, model, article, note, document or information, knowing or having reasonable ground to believe, at the time when he receives it, that the code word, pass word, sketch, plan, model, article, note, document, or information is communicated to him in contravention of this Act he shall be guilty of an offence under this Act, unless he proves' that the communication to him of the code word, pass word, sketch, plan, model, article, note, document, or information was contrary to his desire;

he shall be guilty of an offence under this Act.

Sec. 9. Any person who attempts to commit' any offence under this Act, or solicits or incites or endeavours to persuade another person to commit an offence, or aids or abets and does any act preparatory1 to the commission of an offence under this Act, shall be guilty of an offence under this Act and shall be liable to the same punishment, and to be proceeded against in the same manner, as if he had committed the offence.

[654] The provisions of section 10 are particularly important and show that the statute is preventive as well as retributive. By this section any person reasonably suspected of "being about to commit" an offence may be arrested without warrant and detained by any constable or police officer. The section follows:

10. Any person who is found committing an offence under this Act, or who is reasonably suspected' of having committed, or having attempted to commit, or being about to commit,' such an offence, may be arrested without a warrant and detained1 by any constable or police officer.

It will be observed that while by section 9 an attempt to commit an offence or an act preparatory to the commission of an offence is in each case constituted an offence itself, nowhere in section 9 nor elsewhere in the statute is the fact of being "about to commit" an offense constituted an offense with which any person may be charged or for which he may be convicted. Section 10 provides for detention in such case and nothing more and the section places no time limit upon such detention. Neither does it contain any provision corresponding to such provisions as are found in sections 652 and 664 of the Criminal Code which provide that the person detained under those sections must be brought before a judicial officer within a certain time limited by the sections to be dealt with by him.

As to the provision for interrogation at the instance of the Minister, provided for in subparagraph 1 of the Order, such a provision, although not in the Canadian statute, is not new in matters within this field. Section 6 of the British Act of 1920 for instance provided

that it shall be the duty of every person to give on demand to a chief officer of police, or to a superintendent or other officer of police not below the rank of inspector appointed by a chief officer for the purpose, or to any member of His Majesty's forces engaged on guard, sentry, patrol, or other similar duty, any information in his power relating to an offence or suspected offence under the principal Act or this Act.

...

With respect to paragraph 4 of Order in Council P. C. 6444, this is in substance a reproduction of section 11 of The Official Secrets Act, 1939.

As already noted above, section 10 is silent as to the length of time during which a person reasonably suspected of being about to commit an [655] offence, may be detained by the constable who arrests him. It may be suggested, therefore, that the common law rule would apply and that the person detained must be brought before a judicial officer within a reasonable time. A "reasonable time" within the meaning of the common law rule is such time as is reasonably necessary in the ordinary course to bring the person before a magistrate. The jurisdiction of the magistrate at common law, as under section 668 of the Code, is limited to an inquiry into the matters "charged." In the case of a person arrested and detained on suspicion merely of being "about to commit" an offence, there is no charge and, therefore, nothing for the magistrate to inquire into. If it could be said, therefore, that in such case, there being no charge, the magistrate assuming a nonexistent jurisdiction must direct the release of the person detained, the preventive purpose of The Official Secrets Act might well fail, as the person, by his release, would be then given an opportunity to

1 Italics by royal commission.

commit the actual offense; and it is provided by section 15 of the Interpretation Act, 1927, R. S. C., cap. 1, that every Act and every provision thereof shall be deemed remedial whether its immediate purport is to direct the doing of anything which Parliament deems to be for the public good, or to prevent or punish the doing of any thing which it deems contrary to the public good and "shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment, according to its true intent, meaning and spirit."

The release of a person reasonably suspected of being about to communicate information contrary to the statute merely because no charge has been made where no charge could in law be made, would not be in accord with the purpose of the authority given by section 10 to arrest and detain such a person.

On the other hand, is the duration of the detention authorized by the section to be considered as during such period, in the discretion of the arresting constable, as he thinks reasonably necessary to prevent the commission of the offence, and is his discretion subject to review by the court on any application brought by the person detained to secure his freedom? If the detention were not to be for a sufficient period to prevent the commission of the actual offence or to remove the suspicion, the preventive purpose of the statute might be defeated, but the Governor General in Council provided by Order in Council P. C. 6444 that the Minister of Justice, with whose consent alone, as provided by section 12 of The Official Secrets [655] Act, a prosecution for any offence under the statute may be instituted, should determine when detention shall be no longer necessary.

If then, as laid down in section 10 of the Canadian statute above, Parliament contemplated that, in the case of a single individual suspected by "any" constable or police officer of "being about to commit" the offence of communicating information to a foreign power, such person might be arrested without warrant, it would seem that in a case where there was not just one individual but many suspected, their detention at the instance not of a constable or police officer but under the authority of an Order in Council, would certainly be within the contemplation of the statute.

[671] 2. Order in Council P. C. 411

Dealing now with Order in Council P. C. 411, the law governing the discharge of our duty under it is laid down by The Inquiries Act, R. S. C. 1927, c. 99, pursuant to which we were appointed, and by the express terms of Order in Council P. C. 411 itself. We should say something with respect to these provisions and their application to the Inquiry.

Before referring to the provisions of the law in detail, it should be pointed out that a Commission under The Inquiries Act is, as provided by Section 2 of that statute, appointed for the purpose of making an inquiry whenever the Governor in Council deems it expedient to cause an inquiry to be made "into and concerning any matter connected with the good government of Canada or the conduct of any part of the public business thereof."

The position of persons summoned to give evidence before the Commission is governed by Sections 4 and 5. They are as follows:

4. The commissioners shall have the power of summoning before them any witnesses, and of requiring them to give evidence on oath, or on solemn affirmation if they are persons entitled to affirm in civil matters, and orally or in writing, and to produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine.

[672] 5. The commissioners shall have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases.

In view of this statutory obligation to speak, any idea that all persons whose conduct is being investigated before a Commission under the Statute should be cautioned before being required to give evidence, is based on a misconception. Of course, the ordinary warning that a person is not obliged to speak, but that if he does, anything that he might say may be used at his trial, must at common law be given to a person who is accused, or to a person who is so strongly suspected of having committed a crime that it is the intention of the authorities to prosecute him before the Criminal Courts (Gach v. The King, 1943, S. C. R. 250), which have the power to punish for the crime: a power which a Commission does not possess.

This rule of law is based on the sound principle that confessions must be free from fear and not inspired by hope of advantage which a person may expect from a person in authority, but it finds its application only when the person about to be interrogated is free to remain silent and is not under the compulsion of law to speak. It does not and cannot be applied to a person who is under the compulsion of a statute to reveal to a Commission or other body the existence of facts of which he is aware. The King v. Walker, 1939 S. C. R. 214; Reg. v. Coote, L. R. 4 Privy Council 599.

Under The Inquiries Act, Commissioners are given power by the sections above quoted to compel a witness to speak, and to impose sanctions in case of a refusal. It would be a mockery of the law, and a derisive pronouncement, to hold that a witness must be given the warning "that he is not obliged to speak . . ." and yet that he should be liable to imprisonment if he did not comply with the compulsory sections of the Act, which provide that he is liable to imprisonment if he refuses to take the oath and answer the questions put to him. In not warning the witnesses, we have followed the only legal course open to us.

It will be convenient here to deal with a slightly different point, namely, whether any duty rested upon us as Commissioners to advise witnesses that they might, if they desired, avail themselves of the provisions of Section 5 of The Canada Evidence Act, Revised Statutes of Canada, 1927, cap. 59. It will be sufficient to refer, in this connection to the judgment of the Privy Council in Regina v. Coote, L. R. already referred to above. Sir Robert Collier at p. 607 said:

[673] The Chief Justice indeed suggests, that Coote may have been ignorant of the law enabling him to decline to answer criminating questions, and that if he had been acquainted with it he might have withheld some of the answers which he gave. As a matter of fact, it would appear that Coote was acquainted with so much of the law; but be this as it may, it is obvious, that to institute an inquiry in each case as to the extent of the Prisoner's knowledge of law, and to speculate whether, if he had known more, he would or would not have refused to answer certain questions, would be to involve a plain rule in endless confusion. Their Lordships see no reason to introduce, with reference to this subject, an exception to the rule, recognized as essential to the administration to the Criminal Law, "Ignorantia juris non excusat." With respect to the objection, that Coote when a Witness should have been cautioned in the manner in which it is directed by Statute, that persons accused before Magistrates are to be cautioned (a question said by Mr. Justice Badgley not to have been reserved, but which is treated as reserved by the Court), it is enough to say, that the caution is by the terms of the Statutes applicable to accused persons only, and has no application whatever to Witnesses.

We may point out, that in more than one case, where witnesses were represented by counsel from the outset of their appearance before us, they gave their evidence without any appeal to the Canada Evidence Act. Be that as it may, no duty with respect to the matter rested upon us. The privilege given by the Statute, to a witness who wishes to claim it, is said by Phipson in his leading work on Evidence, 7th Edn. at page 206, to be “based on the policy of encouraging persons to come forward with evidence The author does not say

that it is aimed against self-incrimination. We feel it is too often lost sight of that the law is not designed to handicap society in its endeavor to protect itself against those of its members who commit offenses against it, nor to give advantage to such persons. The language of Riddell J., in the case referred to below, Rex v. Barnes, at page 390, may be studied with profit:

Much has been said as to the alleged hardship upon Barnes in being compelled to give evidence-it is, however, to be hoped that we have not arrived at the point that one accused of crime has so many and so high rights that the people have none. The administration of our law is not a game in which the cleverer and [674] more astute is to win, but a serious proceeding by a people in earnest to discover the actual facts for the sake of public safety and the interest of the public generally. It is the duty of every citizen to tell all he knows for the sake of the people at large, their interest and security, and I am not inclined to stretch in any way rules which permit any one to escape from the duties which all others admit and performit is for Parliament to frame rules and exceptions. not for the Court. The possibility that some charge may be laid in the courts against any person required to attend and testify pursuant to The Inquiries Act, or the fact that such a charge has already been laid at the time any person has been re

quired to attend for the purpose of testifying, does not affect the position of such person under the law, or create any immunity from testifying. The point is illustrated by the decision of the Appellate Division of the Supreme Court of Ontario in Rex v. Barnes, 49 O. L. R. 374. In that case the obligation of Barnes to testify in the proceedings there in question arose under an Ontario statute in somewhat the same terms as Section 5 of The Inquiries Act, namely, R. S. O., 1914, cap. 92, sec. 35, which provided that

in addition to any other powers which he may possess, a coroner shall have the same power to issue summonses to witnesses, Form 8, to enforce their attendance and to punish for nonattendance or refusing to give evidence as is possessed by the Supreme Court.

The language of the late Mr. Justice Riddell at p. 390 mutatis mutandis, applies:

The fact, then, that it is possible, probable or certain that one has caused the death of another does not take away his right to give evidence of the facts before the coroner, and at the Common Law the right and duty to give evidence are correlative. If one who had the right to give evidence should for any reason refuse, he could be compelled.

Had Barnes been in fact arrested and detained under the warrant of the coroner there in question, the same principle applied. The Court refused to set aside the warrant or prohibit its enforcement against Barnes, who at the time was evading arrest.

[675] With respect to the representation of persons called to give evidence before a Royal Commission the English law is stated in Halsbury's Laws of England, 2nd Edition, Vol. 2, p. 501, as follows:

Subsection 5-Nonjudicial proceedings

679. There are some proceedings, such as inquiries by Royal Commis sioners, etc., where there may be no right for any one to appear except persons summoned, and where, therefore, counsel have no right to appear. But at such inquiries counsel, by leave of the commissioners, are often present, and examine and cross-examine witnesses. Tribunals of inquiry to which the Tribunals of Inquiry (Evidence) Act, 1921, has been applied, have power to authorize the representation before them of any person appearing to them to be interested by counsel or solicitor or otherwise, or to refuse to allow such representation.

The English statute referred to in the above text, namely, The Tribunals of Inquiry Act, 1921, 11 Geo. V., cap. 7, provides by Section 2 (b) that the Tribunalshall have power to authorize the representation before them of any person appearing to them to be interested to be by counsel or solicitor or otherwise, or to refuse to allow such representation.

It is of interest to observe that under the common law also, a person in the position of Barnes in the case above referred to, although committed for trial on a charge of manslaughter has no right to be represented by Counsel in the coroner's court investigating the death of the person whose death was the subject of the charge against Barnes. This was decided in Ontario as long ago as Agnew v. Stewart, 21 U. C. Q. B. 396.

The position at law, apart from statute being as above stated, The Inquiries Act, contains an express enactment on the subject by which the Commissioners have a discretion to allow any person whose "conduct is being investigated" to be represented by Counsel before them. It is only "if any charge" is made against any person in the course of such investigation that such person is then entitled to Counsel if he so requests.

Further, the statute provides that the Commissioners shall not report against any person until reasonable notice shall have been given to him of the charge of misconduct alleged against him and he shall have been allowed full opportunity to be heard in person "or" by counsel. These provisions, found in sections 12 and 13, are as follows:

[676] 12. The commissioners may allow any person whose conduct is being investigated under this Act, and shall allow any person against whom any charge is made in the course of such investigation, to be represented by counsel.

13. No report shall be made against any person until reasonable notice shall have been given to him of the charge of misconduct alleged against him and he shall have been allowed full opportunity to be heard in person or by counsel.

The statute does not require that the Commission shall assign Counsel to persons called to testify. The Commission is given a discretion to allow or refuse