Morier and Boily v. Rivard

Morier and Boily v. Rivard
Collection
Supreme Court Judgments
Date
1985-12-19
Report
[1985] 2 SCR 716
Case number
17896
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Quebec
Subjects
Courts
Notes
SCC Case Information: 17896
Decision Content
Morier and Boily v. Rivard, [1985] 2 S.C.R. 716
Gilbert Morier and Raymond Boily Appellants;
and
Gilles Rivard Respondent;
and
Commission de police du Québec, Attorney General of the Province of Quebec, Quebec Official Publisher and Chief Librarian of the Bibliothèque nationale du Québec
Mis en cause.
File No.: 17896.
1985: May 21; 1985: December 19.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for quebec
Judges ‑‑ Immunity ‑‑ Provincial commission of inquiry ‑‑ Action for damages against two members of Commission de police du Québec for acts committed in the course of their duties ‑‑ Commissioners protected by immunity of superior court judges ‑‑ Provincial jurisdiction ‑‑ Immunity absolute ‑‑ Action for damages dismissed by motion to dismiss ‑‑ Police Act, R.S.Q., c. P‑13, ss. 20, 22, 34.3, 35 ‑‑ Act respecting public inquiry commissions, R.S.Q., c. C‑37, s. 16 ‑‑ Code of Civil Procedure, art. 165(4).
Appellants, who are additional members of the Commission de police du Québec, conducted an inquiry into the activities of certain persons in the business world and submitted a report to the Attorney General. Following publication of this report, respondent brought a twofold action against appellants and the Commission itself. The first asked that the report and the evidence obtained be declared null and void, and the second, which is the subject of the appeal at bar, asked that the Commission and the appellants be ordered to pay the respondent exemplary damages in accordance with s. 49 of the Charter of human rights and freedoms. Respondent alleged that appellants acted without jurisdiction and contravened the rules of natural justice by failing to comply with the provisions of the Police Act and the Charter of human rights and freedoms. He alleged principally that, contrary to s. 34.3 of the Police Act, appellants censured his conduct without informing him of the facts alleged against him or permitting him to be heard on the subject.
Citing the immunity conferred on them by s. 22 of the Police Act, both appellants filed a motion to dismiss. Section 22 provides that the Commission and each of its members are vested with the powers and immunity of a commissioner appointed under the Act respecting public inquiry commissions. Section 16 of the Act provides that "The commissioners shall have the same protection and privileges as are conferred upon judges of the Superior Court, for any act done or omitted in the execution of their duty". The Superior Court found that the immunity of appellants was absolute, allowed the motions and dismissed the action for damages. The Court of Appeal reversed the judgment on the ground that the immunity was not absolute but depended largely on the ultra vires of the act committed by the judge and on the knowledge which he has that he lacked jurisdiction.
Held (Wilson and La Forest JJ. dissenting): The appeal should be allowed.
Per Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain JJ.: It is possible that the action to quash the report of the Commission de police and the evidence obtained is valid if the allegations made are proven, but these allegations do not support an action in damages against appellants. Under s. 16 of the Act respecting public inquiry commissions, appellants are vested with the same immunity as a judge of the Superior Court "for any act done or omitted in the execution of their duty". The phrase "in the execution of their duty" means the execution of the duty imposed by that Act on commissioners, and the duty referred to is that of holding an inquiry and submitting a report. Unlike the legislation applicable in other jurisdictions, this section makes no distinction depending on whether the act done or omitted was done or omitted without jurisdiction or in excess of jurisdiction. There was no question in the case at bar that appellants had jurisdiction to hold an inquiry and submit a report. They accordingly enjoy the absolute immunity of superior court judges, and appellants were correct to proceed by a motion to dismiss respondent's action for damages.
Per Wilson and La Forest JJ., dissenting: Under s. 16 of the Act respecting public inquiry commissions, commissioners have the same immunity as superior court judges for any act done or omitted in the execution of their duty. What must be considered, therefore, is the duty of the commissioners under their enabling Act. There is no doubt in the case at bar that under s. 35 of the Police Act, the Commission has a duty to submit a report to the Attorney General. However, the Act also clearly indicates in s. 34.3 that the report "shall not... censure the conduct of a person...unless it has informed him of the facts alleged against him and has permitted him to be heard on that subject". Far from submitting a report in the execution of their duty, the commissioners, if the allegation against them is true, did what they had a duty under the Act not to do. This is not simply a matter of an unimportant procedural omission, but of an irregularity that is both obvious and serious. Accordingly, if respondent's conduct was censured without complying with the requirements of s. 34.3, it is far from certain that the commissioners acted in the exercise of their duty for the purposes of s. 16. The motions to dismiss should therefore be dismissed.
Cases Cited
By the majority
McC v. Mullan, [1984] 3 All E.R. 908; Sirros v. Moore, [1975] 1 Q.B. 118, considered; Trapp v. Mackie, [1979] 1 All E.R. 489; Royal Aquarium and Summer and Winter Garden Society v. Parkinson, [1892] 1 Q.B. 431; Fray v. Blackburn (1863), 3 B. & S. 576; Garnett v. Ferrand (1827), 6 B. & C. 611; Floyd and Barker (1607), 12 Co. Rep. 23; O’Connor v. Waldron, [1935] A.C. 76; Canadian Broadcasting Corporation v. Quebec Police Commission, [1979] 2 S.C.R. 618; McGillivray v. Kimber (1915), 52 S.C.R. 146; Roncarelli v. Duplessis, [1959] S.C.R. 121; Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474; Haggard v. Pélicier Frères, [1892] A.C. 61; Scott v. Stansfield (1868), L.R. 3 Ex. 220; Stark v. Auerbach (1979), 98 D.L.R. (3d) 583; Unterreiner v. Wilson (1982), 40 O.R. (2d) 197; Ringrose v. Stevenson (1982), 35 A.R. 62; Schwartz v. Smith (1964), 45 D.L.R. (2d) 316; Gabriel v. Langlois, [1973] C.S. 659; Bengle v. Weir (1929), 67 C.S. 289; Foran v. Tatangello (1976), 14 O.R. (2d) 91, referred to.
By the minority
McC v. Mullan, [1984] 3 All E.R. 908; Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147; Re The Ontario Crime Commission, Ex parte Feeley, [1962] O.R. 872; Marshalsea Case (1612), 10 Co. Rep. 68b, 77 E.R. 1027.
Statutes and Regulations Cited
Act respecting public inquiry commissions, R.S.Q., c. C‑37, ss. 1‑20.
Charter of human rights and freedoms, R.S.Q., c. C‑12, s. 49.
Code of Civil Procedure, arts. 33, 165.(4).
Courts of Justice Act, 1984, 1984 (Ont.), c. 11, s. 98.
Inquiries Act, R.S.C. 1970, c. I‑13.
Justices’ and Magistrates’ Protection Act, R.S.N.S. 1967, c. 157, s. 2.
Magistrates’ Courts Act (Northern Ireland) 1964, s. 15.
Magistrate’s Privileges Act, R.S.Q., c. P‑24, s. 1.
Police Act, R.S.Q., c. P‑13, ss. 20, 21, 22, 34.3, 35.
Provincial Court Act, R.S.B.C. 1979, c. 341, s. 37.
Provincial Court Act, 1978, 1978 (Sask.), c. 42, s. 23.
Provincial Court Judges Act, 1981 (Alta.), c. P‑20.1, s. 16(1).
Authors Cited
Brun, H. et G. Tremblay. Droit constitutionnel, Cowansville, éditions Yvon Blais Inc., 1982.
Halsbury’s Laws of England, 4th ed., vol. 1, London, Butterworths, 1973.
APPEAL from a judgment of the Quebec Court of Appeal, [1983] C.A. 334, [1983] R.D.J. 514, which reversed a judgment of the Superior Court. Appeal allowed, Wilson and La Forest JJ. dissenting.
Georges Emery, Q.C., for the appellant Boily.
Michel Décary, for the appellant Morier.
Pierre Lemieux and André Gaudreau, for the mis en cause the Attorney General of Quebec.
Guy Pepin, Q.C., and Isabelle Geoffrey, for the respondent.
English version of the judgment of Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain JJ. delivered by
1. Chouinard J.‑‑Respondent, a practising lawyer for over twenty years, alleges that his conduct was censured in a report by the Commission de police to the Attorney General of Quebec. This report was titled [TRANSLATION] "Crime in certain business circles in Québec".
2. Following the publication of this report respondent brought a twofold action against appellants, additional members of the Commission and signatories of the report, and the Commission itself.
3. Respondent's two actions were joined in one. In the first, in the form of a direct action in nullity based on art. 33 C.C.P., respondent asked that the report in question be declared null and void together with any evidence obtained in preparing it. Alternatively, he asked that the Court declare null and void the part of the report which mentions him and any evidence relating to the bankruptcy of Terreau & Racine Ltée.
4. In the second action, respondent asked that the Commission and appellants be jointly and severally ordered to pay him the sum of $250,000 as exemplary damages, in accordance with s. 49 of the Charter of human rights and freedoms, R.S.Q., c. C‑12. Section 49 provides:
49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.
In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to exemplary damages.
5. Inter alia, respondent charged appellants with using in their report evidence obtained in a previous inquiry at which appellant Boily was present, but not appellant Morier. Respondent further alleged that appellants did not inform him of the facts alleged against him or permit him to be heard on the subject. Respondent was called as a witness at the initial inquiry, but was never informed as required by s. 34.3 of the Police Act, R.S.Q., c. P‑13:
34.3 The Commission shall not, in its reports, censure the conduct of a person or recommend that punitive action be taken against him unless it has informed him of the facts alleged against him and has permitted him to be heard on that subject.
That obligation ceases if that person has been invited to appear before the Commission within a reasonable time and he has refused or neglected to do so. That invitation shall be served in the same manner as a summons under the Code of Civil Procedure.
6. The respondent alleged many other facts. The principal allegations of his statement of claim are as follows:
[TRANSLATION]
4. As will be explained below, defendants acted without jurisdiction and/or exceeded the jurisdiction they claimed to have, in particular in that:
4.1 they contravened the Act and the audi alteram partem rule of natural justice;
4.2 defendants failed to comply with s. 34.3 of the Police Act where plaintiff is concerned;
4.3 defendants acted in a discriminatory manner toward plaintiff;
4.4 defendants contravened the provisions of the Charter of human rights and freedoms;
4.5 defendant Gilbert Morier could not sign the report relating to plaintiff and Terreau & Racine Ltée, since he did not hear the evidence;
4.6 the quorum of two in the matter of Terreau & Racine Ltée, as required by the Act, was not observed by defendant Gilbert Morier;
4.7 defendants knowingly committed a fraud on the law;
...
23. As appears from the said report (P‑9), one full section is devoted to the matter of the bankruptcy of Terreau & Racine Ltée, and plaintiff's name is mentioned several times;
24. Additionally, the said report of November 27, 1980 (P‑9), following the second inquiry, contains quotations from the testimony of plaintiff at the first inquiry before a different panel, especially in the portion dealing with the matter of Terreau & Racine Ltée;
25. This being so, as plaintiff did not testify on this matter before the panel presided over by Gilbert Morier J., plaintiff's testimony on the matter of the bankruptcy of Terreau & Racine Ltée was evidence aliunde and hearsay;
26. Plaintiff was very harshly censured by the Commission and by its members Gilbert Morier and Raymond Boily, both in the report and in the recommendations;
27. Contrary to the rules of natural justice and the Charter of human rights and freedoms, and s. 34 of the Police Act, plaintiff has never been heard and has never been given an opportunity to be heard on the matter of the bankruptcy of Terreau & Racine Ltée by the panel consisting of Morier and Boily JJ.;
28. Without limiting the generality of the foregoing, Morier and Boily JJ., in their report of November 27, 1980 (P‑9), censured plaintiff without informing him of the facts alleged against him and without inviting him to be heard on the subject, contrary to s. 34.3 of the Police Act...
...
31.4 Defendants exceeded their mandate by making the arousing of public opinion their objective, whereas their mandate was limited to submitting a report to the Attorney General, as can be seen from the following extracts from the said report:
p. 2 "The significance of an inquiry such as the one we have conducted appears in the Act: informing the Government by a report on any aspect of crime and also arousing public opinion concerning the misdeeds of organized crime."
p. 3 "We have chosen in our report to set forth all the salient facts presented to us, without limitation, in order to inform the Attorney General and the public as fully as possible, in the hope that the appropriate legal action will thus be taken more quickly."
...
31.10 In doing so, defendants were seriously remiss in their duty to act fairly, by their unfair, wrongful, discriminatory and inequitable treatment of plaintiff, since as will be demonstrated at the hearing the notices required by s. 34.3 were sent to other persons who were called to testify at the inquiry held pursuant to Order in Council 3458‑79 (P‑4);
7. These allegations were made in support of both the action to quash the report and the evidence obtained and the action for damages.
8. However, the appeal relates only to the latter action. Additionally, the Commission de police, which was also a defendant in the action for damages, is not a party to the appeal.
9. This is explained by the fact that, before responding to the action, each of the appellants filed a motion to dismiss, citing the immunity conferred by s. 22 of the Police Act:
22. For the purposes of an inquiry held by it under this act or any other act, the Commission, each of its members and every person authorized by it to make an inquiry are vested with the powers and immunity of a commissioner appointed under the Act respecting public inquiry commissions (chapter C‑37).
10. Section 16 of the Act respecting public inquiry commissions, R.S.Q., c. C‑37, provides:
16. The Commissioners shall have the same protection and privileges as are conferred upon judges of the Superior Court, for any act done or omitted in the execution of their duty.
Judgments of Superior Court and Court of Appeal
11. The Superior Court judge found that appellants had absolute immunity and allowed the motions to dismiss, dismissed respondent's action for damages against appellants and found that the relevant paragraphs of the allegations and conclusions of the statement of claim could not be set up against appellants.
12. In a unanimous judgment, Rivard v. Morier, [1983] C.A. 334, the Court of Appeal reversed the Superior Court and dismissed the motions to dismiss on the following grounds (at p. 335):
[TRANSLATION] The immunity of superior court judges is not defined by law. Judicial attitudes to its scope have evolved: see Sirros v. Moore, [1975] Q.B. 118 (U.K.) The immunity does not seem to be absolute but to depend largely on the ultra vires of the act committed by the judge and on the knowledge which he has that he lacked jurisdiction.
It is difficult to assess the concepts of jurisdiction and knowledge in the abstract: it is usually preferable to look at the exact circumstances of a case before arriving at a decision.
This is so in the case at bar: appellant alleged that respondents began an inquiry without publishing notices and that they censured his conduct without giving him an opportunity to defend himself, contrary to the specific provisions of the Act under which they held their mandate.
The evidence presented of these allegations will be more or less circumstantial. If certain circumstances were proven, a judge could conclude that the immunity enjoyed by respondents was not a bar to appellant's action.
At this stage of the proceedings, appellant should be given the benefit of the doubt.
In short, I am unable to conclude that the allegations of appellant's action do not establish a right against respondents.
Position of Appellants
13. According to appellants, the question presented by the appeal is the following: [TRANSLATION] "Is the immunity of superior court judges absolute?"
14. They summarized their position as follows:
[TRANSLATION] Appellants answer this question in the affirmative and submit that:
A [Commissioners] enjoy the immunity of superior court judges;
B The immunity of superior court judges is absolute;
C As the immunity of the [commissioners] is absolute, any action for damages based on an unlawful invasion of a personal right is inadmissible in law.
Position of Attorney General of Quebec
15. The mis en cause Attorney General of Quebec intervened in support of appellants.
16. His submission dealt with the following two points:
[TRANSLATION]
1. For which acts do commissioners appointed under the Police Act (R.S.Q., c. P‑13) enjoy the immunity of superior court judges?
2. Is the immunity of superior court judges from civil suit absolute?
17. The Attorney General submitted that:
[TRANSLATION]
1. Commissioners appointed under the Police Act (R.S.Q., c. P‑13) enjoy the same immunity as superior court judges for any act relating to the performance of their inquiry functions;
2. the immunity of superior court judges from civil suit is absolute;
3. the action against appellants for damages is inadmissible in law.
Position of Respondent
18. Respondent placed the discussion on a completely different level. He stated the points at issue as follows:
[TRANSLATION] In their submission, appellants discussed the point at issue as being concerned with the absolute or relative nature of the immunity of superior court judges from an action at law.
Respondent submits that the point at issue is not as presented by appellants. The Commission de police du Québec is not a superior court of record, it is simply an administrative body, and persons acting as members of that body have the status of public officers, not judges. The immunity of superior court judges is an abstract matter governed by rules fixed by the common law of the United Kingdom, which do not differ in Canada and Quebec (H. Patrick Glenn, La responsabilité des juges, (1983) 28 McGill L.J. 228). The action at bar in nullity and for exemplary damages is brought in particular against appellants Morier and Boily in their capacity as public officers or members of the Commission de police, and not as superior court judges.
The position of respondent Rivard is that the case at bar is essentially a question of the personal liability of public officers who are members of an administrative body, and raises the question of the interpretation of Quebec statutes which amend the common law on the personal liability of public officers, by conferring on them, in certain circumstances and for certain purposes, the powers and immunities of a superior court judge. In particular, the question is whether appellants Morier and Boily, conducting an inquiry and preparing a report as members of the Commission de police, enjoy the immunities of a superior court judge for all legal purposes and throughout the duration of their mandate, including the making of such statements and censures as they may include in the report of the inquiry, which they submit to the Attorney General and which is then published and broadcast.
In respondent's submission, the case is not concerned with the nature of the immunity of superior court judges, but its scope, in light of the interpretation that must be given to Quebec statutes when they extend that immunity and those powers in part to public officers with differing status and training.
19. Respondent stated two propositions, which he then developed by dividing them into several sub‑propositions. The two propositions are as follows:
[TRANSLATION] 1. At common law, a public officer empowered to conduct an inquiry and make a report in accordance with the law is liable in tort, or for fault, like any person of full age and capacity, in particular for statements or conclusions contained in such a report and acts committed without authority or in breach of the law.
2. The laws of the Province of Quebec do not confer on the Commission de police du Québec, investigating certain aspects of crime, the attributes of a court of record at all stages of such inquiries; in submitting a report to the Attorney General, appellants acted as public officers and not by virtue of their powers as superior court judges, and they are accordingly not shielded by the special system of immunity enjoyed by superior court judges.
20. In support of his first proposition, respondent argued that:
[TRANSLATION] 1.1 At common law, a public officer enjoys no immunity in principle, and is fully liable in tort, or for fault, when he acts without authority or in breach of the law.
21. Respondent cited the following cases:
‑‑McGillivray v. Kimber (1915), 52 S.C.R. 146 (especially at p. 168, Duff J.);
‑‑Roncarelli v. Duplessis, [1959] S.C.R. 121 (especially at pp. 141‑42, Rand J.);
‑‑Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474.
22. However, none of these cases dealt with the interpretation of legislation similar to that applicable in the case at bar.
23. Respondent further submitted that:
[TRANSLATION] 1.2 At common law, a public officer acting under the law ... benefited from the same immunities as judges of courts of record when he acted as a court and was vested with the attributes of a court of record.
Respondent went on:
[TRANSLATION] However, though vested with quasi‑judicial powers, administrative bodies are not on an equal footing with courts of record.
Respondent concluded this heading with the following:
[TRANSLATION] Despite these fundamental differences the courts have, for reasons of the public interest, extended the protection of the immunities enjoyed by judges of courts of record to members of administrative bodies, not in all circumstances or for all legal purposes, but only in certain specific situations, such as when they are performing the functions of a court of record under a statute, in short when they are acting as a court or acting by authority as does a court of record.
24. In support of these various statements, respondent cited several cases including Canadian Broadcasting Corporation v. Quebec Police Commission, [1979] 2 S.C.R. 618, and O’Connor v. Waldron, [1935] A.C. 76.
25. In the Canadian Broadcasting Corporation case, this Court held that the Commission de police did not have the power to punish someone for contempt of court not committed in its presence. The Court had to interpret s. 7 of the Public Inquiry Commission Act, which reads:
7. A majority of the commissioners must attend and preside at the hearing of witnesses, and they, or a majority of them, shall have, with respect to the proceedings upon the hearing, all the powers of a judge of the Superior Court in term.
26. Beetz J., speaking for the majority, wrote at pp. 642‑43:
However, the legislature did not intend to confer all the powers of a judge of the Superior Court on the Police Commission, only those concerning the procedure for the examination of witnesses.
27. That case concerned the powers of commissioners to examine witnesses, not their immunity for an act done or omitted in the course of their duties. In my view, it is not applicable in the case at bar.
28. In O’Connor v. Waldron, the Privy Council held that a commission conducting an inquiry under the Combines Investigation Act, R.S.C. 1927, c. 26, enjoyed no immunity against an action in tort on account of defamatory statements made during the inquiry. Section 22 of the Act conferred on the commissioners the powers of a superior court for the hearing of evidence, but once again there was no mention anywhere of an immunity, nor was there any such mention in the Inquiries Act, R.S.C. 1927, c. 99, applicable to combines investigations.
29. In his second proposition, respondent argued that in preparing their report appellants acted as public officers, and that they accordingly were not shielded by the immunity of superior court judges.
30. Respondent broke down this proposition into three parts:
[TRANSLATION]
‑‑The statutes of Quebec do not confer on the Commission de police du Québec in its investigation of certain aspects of crime the attributes of a court of record at all stages of such inquiries, and in particular that of filing their report.
‑‑Section 16 of the Police Act amends the common law by creating a general system of relative immunity only for the members and staff of the Commission de police, protecting all official acts from legal actions for damages.
‑‑Section 22 of the Police Act cannot be interpreted as conferring on appellants the special immunity of superior court judges at all stages of their inquiries, and in preparing a report appellants acted as ordinary public officers, not in the exercise of their special powers as superior court judges, and so are not shielded by the special immunity of superior court judges.
31. Respondent again referred to the common law. He cited O’Connor v. Waldron, supra, and the decision of the House of Lords in Trapp v. Mackie, [1979] 1 All E.R. 489.
32. In the latter case, Lord Diplock suggested four criteria for determining whether a body is sufficiently similar to a court of record for witnesses called to appear before it to enjoy an absolute immunity. At page 492, he wrote:
So, to decide whether a tribunal acts in a manner similar to courts of justice and thus is of such a kind as will attract absolute, as distinct from qualified, privilege for witnesses when they give testimony before it, one must consider first, under what authority the tribunal acts, secondly, the nature of the question into which it is its duty to inquire, thirdly, the procedure adopted by it in carrying out the inquiry and, fourthly, the legal consequences of the conclusion reached by the tribunal as a result of the inquiry.
33. Applying these criteria to the Commission de police conducting an inquiry into certain aspects of crime, as in the case at bar, respondent concluded that the Commission has only the first in common with courts of record, and that therefore the Commission and its members do not enjoy an absolute immunity.
34. However, it must be pointed out that no legislation corresponding to the provisions of the Police Act and the Act respecting public inquiry commissions was at issue in this decision by the House of Lords, which in my opinion does not apply in the case at bar.
35. The first statement made by respondent under his second proposition suggested that the Commission de police, when it is investigating crime, is clothed with the attributes of a court of record for the conduct of the inquiry only. It does not have such attributes in the presentation of its report. It is from this premise that respondent went on to make two further statements. Fundamentally, he argued, the Commission and its members enjoy the immunity of superior court judges for the examination of witnesses only, not in relation to the report.
36. Respondent argued that since in s. 22 of the Police Act the words "powers" and "immunity" are used together, when they are found in the Act respecting public inquiry commissions they must be subject to the same limiting interpretation. In Canadian Broadcasting Corporation v. Quebec Police Commission, supra, this Court held that the Public Inquiry Commission Act did not confer all the powers of a superior court judge on the Commission de police, only those relating to the proceedings for examining witnesses, and that therefore the Commission did not have the power to punish for contempt of court not committed in its presence. Similarly, respondent submitted, the Commission de police and its members only enjoy the immunity of superior court judges for proceedings relating to the examination of witnesses.
37. In my opinion, this conclusion is untenable in light of the applicable legislation. Only if it were correct would it be necessary to examine more closely the second and third statements made by respondent under his second proposition, and so this does not seem to be necessary.
38. Further, the arguments which respondent derived from the common law cannot be conclusive precisely because of the existence of legislation covering these matters, which must now be considered.
The Police Act and the Act Respecting Public Inquiry Commissions
39. One of the purposes of the Police Act is to create a Commission de police. This has various responsibilities, including the conducting of inquiries.
40. These are of three types:
[TRANSLATION]
‑‑inquiries into certain aspects of crime requested by the government, under section 20;
‑‑inquiries under the first two paragraphs of section 21, namely:
inquiries into the Sûreté du Québec, requested by the government;
inquiries into the conduct of a member of the Sûreté du Québec, requested by the Attorney General;
inquiries into a municipal police force, requested by the government or by the municipal council;
inquiries into the conduct of a member of a municipal police force, requested by the Attorney General or the municipal council;
inquiries into the conduct of a special constable, requested by the Attorney General, or the conduct of a special constable appointed by the mayor, requested by the municipal council;
inquiries into the Sûreté du Québec or a municipal police force, the conduct of a member of the Sûreté du Québec or a member of a municipal police force, or a special constable, initiated on its own motion or at the written request of a individual;
‑‑inquiries under paragraph 3 of section 21, namely:
inquiries into the conduct of any person acting as a peace officer in Quebec, at the request of the Attorney General, on its own motion or at the substantiated request of an individual.
41. The inquiry in the case at bar is of the first type.
42. Section 20 provides:
20. The Commission shall make an inquiry, whenever requested to do so by the Government, respecting any aspect of crime which it indicates.
The Commission shall also make an inquiry into the activities of an organization or system, its ramifications and the persons involved, to the extent prescribed by the Government, whenever it has reason to believe that in the fight against organized crime or terrorism and sub‑ version, it is in the public interest to order such an inquiry to be held.
43. I again reproduce s. 22:
22. For the purposes of an inquiry held by it under this act or any other act, the Commission, each of its members and every person authorized by it to make an inquiry are vested with the powers and immunity of a commissioner appointed under the Act respecting public inquiry commissions (chapter C‑37).
44. Section 35 requires the Commission to submit a written report to the Attorney General after each inquiry:
35. When an inquiry has been made in accordance with the preceding sections, the Commission shall make a written report of its findings to the Attorney General; when the inquiry has been made at the request of a municipality, notice of its conclusions must also be given to the municipality; if the inquiry has been made at the request of a citizen, the Commission may also inform him of its conclusions and notify the interested municipality if expedient.
45. It is also necessary to again reproduce ss. 7 and 16 of the Act respecting public inquiry commissions:
7. A majority of the commissioners must attend and preside at the hearing of witnesses, and they, or a majority of them, shall have, with respect to the proceedings upon the hearing, all the powers of a judge of the Superior Court in term.
16. The commissioners shall have the same protection and privileges as are conferred upon judges of the Superior Court, for any act done or omitted in the execution of their duty.
46. These provisions seem to be clear and unambiguous as regards the immunity of the Commission de police and of its members. The fact that "powers" and "immunity" are used together in s. 22 of the Police Act, which refers to the Act respecting public inquiry commissions, could not in any way influence the definition given of them in the latter Act. In it powers are defined in ss. 7 et seq. and immunity in s. 16.
47. The latter is quite clear. The immunity of commissioners is the same as that of superior court judges "for any act done or omitted in the execution of their duty".
48. In the context of the Act respecting public inquiry commissions, the phrase "in the execution of their duty" means a duty imposed by that Act.
49. The oath which commissioners are required by s. 2 to take indicates this expressly:
2. The commissioners so appointed shall, before acting, take the following oath of office before a judge of the Superior Court:
"I, A.B., do swear that I will exercise and perform the powers and duties vested in me by the provisions of the Act respecting public inquiry commissions (Revised Statutes of Québec, 1977, chapter C‑37), according to the best of my knowledge and judgment. So help me God."
50. The duties which this Act imposes are the holding of an inquiry and the making of a report on the results of the inquiry and the evidence presented. This is stated in ss. 1 and 6:
1. Whenever the Gouvernement deems it expedient to cause inquiry to be made into and concerning any matter connected with the good government of Québec, the conduct of any part of the public business, the administration of justice or any matter of importance relating to public health, or to the welfare of the population, it may, by a commission issued to that effect, appoint one or more commissioners by whom such inquiry shall be conducted.
6. The commissioners may, by all such lawful means as they may think best fitted to discover the truth, inquire into the matters referred to them for investigation.
As soon as the inquiry is completed, they shall report the result, with all evidence taken during the inquiry, to the Gouvernement, who shall order such action to be taken in the matter as shall be warranted by the evidence and report.
51. There are only 20 sections in this Act.
52. Section 3 provides for the appointment of a secretary and staff, and authorizes the commissioners to "incur such further expenses as may be necessary for the performance of their duties".
53. Under s. 4, it is the government that fixes the salaries of commissioners and staff.
54. Section 5 provides that, within a reasonable time after their appointment, commissioners shall hold meetings for the purposes of the inquiry, at the place where the necessary information is to be obtained. The section specifies the notices to be given and deals with adjournments.
55. Section 8 empowers the government to grant an indemnity to commissioners.
56. Section 9 deals with the summoning, appearance and swearing‑in of witnesses.
57. Sections 10 and 11 deal with the failure to appear or to testify and the resulting contempt of court, as well as the immunity of witnesses for their testimony before a commission.
58. Section 12 relates to a refusal to produce documents.
59. Section 13 covers the expenses of witnesses.
60. Section 14 authorizes certain officials to hold specific inquiries ex officio.
61. Section 15 is concerned with inquiries into the use of public monies.
62. Section 17 is the usual type of privative clause.
63. Section 18 provides that any person may obtain copies of the evidence.
64. Section 19 reserves to the government the power to fix the date on which the work of a commission and its report are to be completed and the limitation of costs.
65. Finally, s. 20, added in 1982, excludes the statute from the ambit of ss. 2 and 7‑15 of the Constitution Act, 1982 .
66. Similarly, the duties which the Police Act imposes on the Commission concerning inquiries involve the holding of an inquiry and making of a report. The relevant provisions are to be found in Subdivision 3, titled "Inquiries", of Division II, and are contained in ss. 20‑36. Sections 20 and 21, summarized above, each use the phrase "The commission shall make an inquiry ..."; and s. 35 expressly imposes on commissioners a duty to make a written report. It does not appear necessary to summarize here the other sections referred to elsewhere in this opinion, governing certain aspects of conduct of the inquiry, because so far as immunity is concerned s. 22 simply refers to s. 16 of the Act respecting public inquiry commissions, and it is that which must be analysed.
67. What has to be noted is that s. 16, which confers on commissioners the same immunity as is enjoyed by superior court judges "for any act done or omitted in the execution of their duty", makes no distinction depending on whether the commissioners exceed their jurisdiction.
68. This is not the case in other jurisdictions.
69. Section 15 of the Magistrates’ Courts Act (Northern Ireland) 1964, discussed below in McC v. Mullan, [1984] 3 All E.R. 908, reads as follows:
No action shall succeed against any person by reason of any matter arising in the execution or purported execution of his office of resident magistrate or justice of the peace, unless the court before which the action is brought is satisfied that he acted without jurisdiction or in excess of jurisdiction.
70. It speaks, on the one hand, of "execution of his office", and on the other of the absence or excess of jurisdiction. The magistrate may be held liable if while in the execution of his office he acts without jurisdiction or in excess of his jurisdiction. This distinction is not to be found in s. 16.
71. All the provinces have adopted legislation conferring immunity on the judges or commissioners appointed by them. Some statutes make a distinction depending on whether the judge is acting within the limits of his jurisdiction, and others make no distinction. A few examples will suffice to illustrate this.
72. Section 16(1) of the Provincial Court Judges Act, 1981 (Alta.), c. P‑20.1:
16(1) No action may be brought against a judge for any act done or omitted to be done in the execution of his duty or for any act done in a matter in which he has exceeded his jurisdiction unless it is proved that he acted maliciously and without reasonable and probable cause.
73. Section 37 of the Provincial Court Act, R.S.B.C. 1979, c. 341:
37. A judge, justice or court referee is not liable for damage caused by anything done or not done by him in the performance of his duty or in respect of a matter in which he lacked or exceeded his jurisdiction unless it is proved that he acted in bad faith or without reasonable and probable cause.
74. Section 2 of the Justices’ a