Mackeigan v. Hickman

Mackeigan v. Hickman
Collection
Supreme Court Judgments
Date
1989-10-05
Report
[1989] 2 SCR 796
Case number
21315, 21351
Judges
Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Nova Scotia
Subjects
Constitutional law
Courts
Notes
SCC Case Information: 21315, 21351
Decision Content
MacKeigan v. Hickman, [1989] 2 S.C.R. 796
T. Alexander Hickman,
Lawrence A. Poitras
and Gregory Thomas Evans Appellants
and
Ian M. MacKeigan, Gordon L. S. Hart,
Malachi C. Jones, Angus L. Macdonald
and Leonard L. Pace Respondents
and
The Attorney General of Quebec,
the Attorney General of Nova Scotia
and Donald Marshall, Jr. Interveners
and between
Donald Marshall, Jr. Appellant
and
Ian M. MacKeigan, Gordon L. S. Hart,
Malachi C. Jones, Angus L. Macdonald
and Leonard L. Pace Respondents
and
T. Alexander Hickman,
Lawrence A. Poitras
and Gregory Thomas Evans Respondents
and
The Attorney General of Quebec and
the Attorney General of Nova Scotia Interveners
indexed as: mackeigan v. hickman
File Nos.: 21315, 21351.
1989: April 19, 20; 1989: October 5.
Present: Lamer, Wilson, La Forest, L'Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.
on appeal from the supreme court of nova scotia, appeal division
Constitutional law -- Judiciary -- Judicial privilege -- Inquiry into Reference by Court of Appeal -- Commissioners ordering justices sitting on Reference to attend -- Questions relating to composition of panel on Reference, materials before the Court on the Reference, and how the Court came to its conclusions -- Whether or not justices can be compelled to testify under Public Inquiries Act -- Public Inquiries Act, R.S.N.S. 1967, c. 250, ss. 3, 4.
Courts -- Judicial privilege -- Inquiry into Reference by Court of Appeal -- Commissioners ordering justices sitting on Reference to attend ‑‑ Questions relating to composition of panel on Reference, materials before the Court on the Reference, and how the Court came to its conclusions -- Whether or not justices can be compelled to testify under Public Inquiries Act.
Constitutional law -- Provincial Royal Commission of Inquiry ‑‑ Commission investigating matters related to murder and wrongful conviction for murder -- Commission about to examine Reference by Court of Appeal which quashed wrongful conviction -- Whether or not inquiry into Reference ultra vires the province as a matter of criminal law exclusively within federal competence -- Constitution Act, 1867, s. 91(27) .
The federal Minister of Justice, on the basis of new information, referred the conviction of Donald Marshall, Jr. to the Appeal Division of the Supreme Court of Nova Scotia pursuant to s. 617 (b) of the Criminal Code for a redetermination. The panel which heard the matter included a justice who had been Attorney General of Nova Scotia when Marshall was investigated for, charged with and convicted of murder. That court quashed Marshall's conviction but noted at the end of its judgment that Marshall had contributed to his conviction and that any miscarriage of justice was more apparent than real. Marshall eventually received compensation for his lengthy incarceration but the comments of the Court of Appeal had an impact on the quantum of that payment.
A Royal Commission was established to inquire into the murder, the charging and prosecution of Marshall, his subsequent conviction and sentencing, and other related matters the Commission considered relevant. The justices who sat on the Reference were asked to attend and Orders to Attend were issued by the Commission when they declined to do so. The justices successfully applied for a declaration that the Commission had no authority to compel their attendance by virtue of judicial immunity and for orders quashing the Orders to Attend and prohibiting the Commission from inquiring into their operations, deliberations, decisions and orders in respect of the Reference. An appeal by the Commissioners to the Appeal Division of the Supreme Court of Nova Scotia was dismissed.
These appeals raised two issues. The first issue was whether ss. 3 and 4 of the Public Inquiries Act could be used to compel superior court judges to testify before the Commission, either with respect to how and why they reached their decision or with respect to the composition of the panel that heard the case. The second issue was whether the direction to the Commission to inquire into a reference by the Minister of Justice was ultra vires the Province because it is a matter of criminal law and procedure reserved exclusively to the federal Parliament under s. 91(27) of the Constitution Act, 1867 .
Held (Wilson and Cory JJ. dissenting in part): The appeal should be dismissed.
Per L'Heureux‑Dubé, Gonthier and McLachlin JJ.: Sections 3 and 4 of the Public Inquiries Act do not empower the Commission to compel the justices who sat on the Marshall Reference to testify as to the grounds for their decision. Provisions of a statute dealing with the same subject should be read together, where possible, so as to avoid conflict. Accordingly, the Commission is granted power to "summon" any person under s. 3 but it does not have greater powers under s. 4 than those exercisable by a Supreme Court judge sitting on a civil case when enforcing attendance and compelling witnesses to testify against their will.
Judicial independence requires that relations between the judiciary and other branches of government not impinge on the essential "authority and function" of the court. The authorities and the general principles of judicial independence which have been summarized by this Court in Valente v. The Queen and Beauregard v. Canada clearly establish that a judge of the Supreme Court hearing a civil case would not have the power to compel another judge to testify as to how and why that judge arrived at his or her conclusions. That is a matter of privilege going to judicial impartiality in adjudication and to the role arbiter and protector of the Constitution. Similarly, one judge cannot compel another to testify as to why a particular judge sat on a particular case. That matter goes to the administrative or institutional aspect of judicial independence. The courts must control administrative matters related to adjudication without interference from the Legislature or executive. To allow the executive a role in selecting what judges hear what cases or to inquire after the fact would constitute an unacceptable interference with the independence of the judiciary. The requirements of s. 4 of the Public Inquiries Act are not met.
The concepts of judicial independence and the supremacy of Parliament must be balanced. The power in the courts to control their own administration is not absolute. Circumstances can exist where the Legislature or Parliament could enact laws relating to the functioning of the courts or enquire into the conduct of particular judges. Parliament can also impeach a federally appointed judge for dereliction of duty. The fundamental principle of judicial independence, at least to this extent, must leave scope for the principle of Parliamentary supremacy. Yet, Parliament and the Legislatures cannot act so as to trammel the authority and function of the courts.
The language of s. 3, read alone, is not specific enough to override the fundamental principle of judicial immunity from being compelled to testify about the decision‑making process or the reasons for the composition of the court in a particular case.
The phrase "administration of justice" in s. 92 of the Constitution Act, 1867 should be construed as relating to both civil and criminal justice and encompasses a provincially appointed commission to inquire into a Reference by the federal Minister of Justice under s. 617 (b) of the Criminal Code . Such an inquiry does not trench on the exclusive federal power over the criminal law. The inquiry, subject to the caveat that no provincially constituted commission of inquiry can inquire into the actual management or operation of the federal activity or entity in question, does not constitute an attempt to interfere with the valid federal interest in the enactment of and provision for a uniform system of procedures and rules governing criminal justice in the country.
Per Lamer J.: What evidence a court relies on for arriving at a given conclusion is an integral part of the adjudicative process. This requires decisions pertaining to the admissibility of evidence, an assessment of the weight to be given to it and a determination of its effect on the outcome of the case. The extent to which a court reveals these matters in a judgment is equally an integral part of the adjudicative process. A court, if it were not to disclose the basis for a decision in a judgment and, when relevant, the evidence relied on, may well, in some circumstances though surely not in all, have failed in its adjudicative duties but not in any administrative duty, and the executive cannot compel the justices as witnesses to clarify and add to their judgment.
A Chief Justice's reasons for determining who sits on which case is protected by a qualified judicial privilege. This privilege may, but not always, give way to disclosure only when an investigation into the conduct or integrity of the Chief Justice or other justices is being conducted.
The power to investigate into the conduct or integrity of judges lies with the federally created Canadian Judicial Council. The commission accordingly is not empowered to ask any question pertaining to the composition of a particular bench and the reasons for which it was set up in a particular manner.
Per La Forest J.: The Nova Scotia Public Inquiries Act was not specific enough to override the fundamental principle of judicial immunity from being compelled to testify about the decision‑making process or the reasons for the composition of the court in a particular case.
The Act, even if sufficiently explicit, would appear to fall outside provincial competence to that extent. The constitutional underpinnings for the independence of the judiciary lie in the judicature provisions in Part VII of the Constitution Act, 1867 and it is significant that all the powers relating to the superior courts are at the federal level. The status, independence and judicial functions of these judges would thereby fall outside provincial competence, though a province may legislate in respect of their purely administrative functions. The federal Parliament is competent to enact legislation necessary to satisfy the need for credible complaint procedures to ensure continued public confidence in the administration of justice.
Apart from the division of powers issue, the institutional structure and modalities of the commission were not really tailored to the task of inquiring into judicial functions. Consequently, it might otherwise well run afoul of the letter and purpose of the judicature provisions of the Constitution.
Per Wilson J. (dissenting in part): The judiciary enjoys an absolute immunity with respect to its adjudicative function. Its immunity with respect to its administrative function, however, is not absolute and must give way in circumstances where the administration of justice is itself under review by a body with the constitutional authority to undertake such a review. While questions as to the composition of a panel would in normal circumstances be protected by a qualified immunity, to permit them in the exceptional circumstances of this case would not impair the authority of Chief Justices in general to assign judges to particular cases. The question needed to be asked in this case given the prima facie case of lack of impartiality, the fact that the judicial system had in some way gone awry, and the public perception that the doctrine of judicial immunity may be being used to protect the judiciary rather than the justice system. While questions as to why the final record ended up as it did go directly to the judiciary's adjudicative function as to which there is an absolute immunity, questions as to what as a factual matter comprised the final record on which justice was administered in the case are permissible.
The doctrine of judicial immunity was the only constitutional basis for prohibiting the questions in issue from being asked. Part VII of the Constitution Act, 1867 , while it places the responsibility for certain specific matters within federal jurisdiction, does not prevent provinces from inquiring into aspects of the administration of justice that do not fall squarely within Part VII of the Constitution Act, 1867 . A distinction must be made between a Commission inquiring into the administration of justice in a province (including administrative decisions of the judiciary as one of the participants in the administration of justice) and one looking into the conduct of judges which is clearly a federal matter. Issues that are not specifically related to alleged improprieties on the part of judges and that are related to the administration of justice remain subject to provincial jurisdiction and may properly be considered by bodies like the Commission.
Per Cory J. (dissenting in part): The terms of the appointment of the Commission were broad enough to include the Reference to the Court of Appeal on Marshall's wrongful conviction and the eventual payment of compensation to him.
All privileges of exemption from the duty to testify are exceptional and ought to be discountenanced unless there is good reason plainly shown for their existence. There is, however, for very good reason an absolute privilege accorded to the judiciary exempting them from testifying as to their mental processes in arriving at a judgment or as to how they reached a decision in any case that came before them. It is vital to the preservation of our system of justice that a judge not be required to answer any questions as to how a decision was reached. The reasons and the decisions speak for themselves. As well, a large measure of judicial immunity from testifying in respect of the administration of the work of the courts is an important and necessary factor in the functioning of the judicial system.
An important distinction must be drawn between the two types of judicial immunity. The privilege of the judiciary not to be questioned as to the decisions they have made on cases is of fundamental importance and absolute in nature. The privilege as to the administration of the courts, however, is not of the same fundamental importance and is qualified in nature. It is an adjunct to the adjudicative privilege.
The qualified privilege of judges on administrative matters exists at common law and will clearly apply in most situations. It must give way, however, when it is necessary to reaffirm public confidence in the administration of justice. In exceptional situations, such as those in this case, that qualified privilege should not and cannot prevail. The Commission, pursuant to ss. 3 or 4 of the Public Inquiries Act, has jurisdiction to compel attendance in order to pose and receive answers as to the composition of the panel hearing the Reference and as to the record relied upon by the Court of Appeal in reaching its conclusions.
Questions as to what factors constituted a miscarriage at the trial came within the absolute immunity pertaining to judgments and reasons for judgment.
Cases Cited
By McLachlin J.
Applied: Valente v. The Queen, [1985] 2 S.C.R. 673; Beauregard v. Canada, [1986] 2 S.C.R. 56; considered: Knowles' Trial (1692), 12 How. St. Tr. 1167; referred to: Zanatta v. McCleary, [1976] 1 N.S.W.L.R. 230; Duke of Buccleuch v. Metropolitan Board of Works (1872), 41 L.J. Ex. 137; McKinley v. McKinley, [1960] 1 All E.R. 476; Scott v. Smith (1931), 4 M.P.R. 23; Re Clendenning and Board of Police Commissioners for City of Belleville (1976), 75 D.L.R. (3d) 33; Re Reinking (1984), 3 O.A.C. 137; Family and Children's Services v. P. B. and M. B. (1985), 49 R.F.L. (2d) 55; R. v. Moran (1987), 21 O.A.C. 257; Agnew v. Ontario Association of Architects (1987), 64 O.R. (2d) 8; Eccles v. Bourque, [1975] 2 S.C.R. 739; Di Iorio v. Warden of Montreal Jail, [1978] 1 S.C.R. 152; Attorney General (Que.) and Keable v. Attorney General (Can.), [1979] 1 S.C.R. 218; O'Hara v. British Columbia, [1987] 2 S.C.R. 591.
By La Forest J.
Referred to: Chandler, U.S. District Judge v. Judicial Council of the 10th Circuit, 398 U.S. 74 (1970); Landreville v. The Queen, [1977] 2 F.C. 726; In the Matter of Certain Complaints under Investigation by an Investigating Committee of the Judicial Council of the Eleventh Circuit, 783 F.2d 1488 (11th Cir. 1986).
By Wilson J. (dissenting in part)
Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307.
By Cory J. (dissenting in part)
R. v. Marshall (1983), 57 N.S.R. (2d) 286; Knowles' Trial (1692), 12 How. St. Tr. 1167; R. v. Moran (1987), 21 O.A.C. 257; Valente v. The Queen, [1985] 2 S.C.R. 673; In the Matter of Certain Complaints under Investigation by an Investigating Committee of the Judicial Council of the Eleventh Circuit, 783 F.2d 1488 (11th Cir. 1986); Carey v. Ontario, [1986] 2 R.C.S. 637; United States v. Nixon, 418 U.S. 683 (1974).
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 11 (d).
Constitution Act, 1867, ss. 91(27) , 92(14) , 96 , 99 , 100 , 101 , 129 .
Criminal Code, R.S.C. 1970, c. C‑34, s. 617(b).
Judges Act, R.S.C., 1985, c. J‑1 , Part II.
Public Inquiries Act, R.S.N.S. 1967, c. 250, ss. 3, 4.
Supreme Court Act, R.S.C. 1970, c. S‑19.
Authors Cited
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Butterworths, 1983.
Lederman, W. R. "The Independence of the Judiciary" (1956), 34 Can. Bar Rev. 769, 1139.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8 (McNaughton rev.) Boston: Little, Brown, 1961.
APPEAL from a decision of the Nova Scotia Supreme Court, Appeal Division (1988), 87 N.S.R. (2d) 443, dismissing an appeal from a decision of Glube C.J. (1988), 43 C.C.C. (3d) 287, granting a declaration with respect to judicial immunity and quashing Orders to Attend issued by a provincial royal commission. Appeal dismissed, Wilson and Cory JJ. dissenting in part.
James MacPherson, B. A. Crane, Q.C., and W. Spicer, for T. Alexander Hickman, Lawrence A. Poitras and Gregory Thomas Evans.
Clayton Ruby, for Donald Marshall, Jr.
R. J. Downie, Q.C., and F. P. Crooks, for Ian M. MacKeigan, Gordon L. S. Hart, Malachi C. Jones, Angus L. Macdonald and Leonard L. Pace.
Robert Décary, Q.C., and Angéline Thibault, for the Attorney General of Quebec.
Jamie W. S. Saunders and Peter M. Rogers, for the Attorney General of Nova Scotia.
//Lamer J.//
The following are the reasons delivered by
LAMER J. -- I have read the reasons of my colleagues Justices Wilson, La Forest, Cory and McLachlin. While I agree with the principles set out in my brother Cory's judgment, when applying them to this case, I reach the same conclusion as my colleague McLachlin J. and, accordingly, would dismiss this appeal.
Cory J. refers to the "second question" to be put to the justices as relating to "the composition of the record that was in fact before the Court of Appeal on the Reference". I prefer to address the nature of the query to be put to the justices by referring to Mr. Orsborn's letter to the Chief Justice, which reads it as follows:
After our own review, we are unsure of the record relied on by the Court in reaching its conclusions. It is not clear what affidavits were before the Court -- reference is made in the reasons to certain affidavits but the transcript suggests that the affidavits were not in fact before the Court. In addition, we would like to understand why the affidavits (and cross-examination) of the potential police witnesses were not admitted, given the possible importance of these witnesses in determining why 1971 witnesses were now recanting.
McLachlin J., in her reasons, has set out in some detail the events that took place regarding the adduction of fresh evidence. To be noted is the fact that that decision was "reserve[d] . . . on the applications to receive in evidence any of the affidavits tendered". The decision to reserve was made by a different panel than that which heard the oral evidence and decided the reference. When giving judgment on the merits of the reference, the justices gave no indication as to whether any or all of the affidavits tendered were finally admitted by them as part of the record. Another one of the Commission's concerns is the fact that the reasons of the justices refer to certain affidavits while the transcripts seem to indicate that they would appear not to have been before the court. Under these particular circumstances, a query as to "the record relied on by the Court in reaching its conclusions", can mean one of two things. It could mean, what was the record the court retired with when reserving judgment. If that is the case, there surely is no need to call upon the justices. Indeed, the clerk of this court of record can be called upon to file the court's record. But, obvious to me, this is not what is sought, as is apparent when one reads Mr. Orsborn's letter. Mr. Orsborn wants to know which affidavits were admitted and formed therefore part of the record once the evidentiary interlocutory decisions had been made. He also wants to know if the court relied on evidence that it had decided not to receive or on evidence that was not properly before the court for any other reason. Putting the question in other words: how did you rule on the admissibility of the affidavits the previous panel had reserved on, and, did you rely on evidence that was not properly before you?
What evidence a court relies on for arriving at a given conclusion is an integral part of the adjudicative process. This requires decisions pertaining to the admissibility of evidence, and then an assessment of the weight to be given to it and its effect on the outcome of the case applying the rules pertaining to the burden of presentation of proof and that of persuasion. The extent to which a court reveals these matters in a judgment is equally an integral part of the adjudicative process. Of course, courts should normally disclose in their judgment the basis for their decisions and, when relevant, the evidence it has decided to rely upon. However, if a court chooses not to do so, it may well, in some circumstances though surely not in all, have failed in its adjudicative duties but not in any administrative duty, and the justices cannot be compelled by the executive as witnesses to clarify and add to their judgment.
There are procedures through which courts can be invited to do so, such as applications for rehearings where courts are asked to reopen the case and make determinations they have overlooked; there are also the various review and appeal procedures where such lacunae can to varying degrees be remedied. To these adjudicative problems there are only judicial remedies, with the exception of disciplinary measures, which of course, are not at issue in this case. But, as regards the justices, they enjoy in that aspect of their functions absolute immunity against being compelled as witnesses before a commission of inquiry such as this one.
The "first question" is that which is intended to be put to the Chief Justice, asking him why Pace J.A. was made part of the panel. A Chief Justice's reasons for determining who sits on which case needs to be protected from inquiries and for that reason, benefits from the judicial privilege. But, as Cory J. states, it is a qualified privilege. In, but only in, exceptional circumstances this privilege will have to give way to disclosure. In my view, the only situation where this may, but not always, occur, is when an investigation into the conduct or integrity of the Chief Justice or other justices is being conducted.
Since this commission of inquiry has no power to investigate into the conduct or integrity of judges, a matter that is for the federally created Canadian Judicial Council, the Commission is not empowered to ask any questions pertaining to the composition of a particular bench and the reasons for which it was set up in a particular manner.
I hasten to add that the preceding considerations are in no way intended to indicate my views as to whether there was here any failure as regards adjudicative duties, any improper conduct on the part of the justices, or whether an inquiry into the conduct of the judges should or should not be carried out by the Canadian Judicial Council. They are only in answer to the issues raised by the Commission's attempt to require the justices to answer certain questions that could only, when appropriate, be put to them in that setting and by that body.
In the result, I would dismiss this appeal.
//Wilson J.//
The following are the reasons delivered by
WILSON J. (dissenting in part) -- I write in support of the judgment of my colleague, Justice Cory, on this appeal. I agree with him and with my other colleagues, that the judiciary enjoys an absolute immunity with respect to its adjudicative function. I also agree with him that the judiciary's immunity with respect to its administrative function is not absolute and that it must give way in circumstances where the administration of justice is itself under review by a body with the constitutional authority to undertake such a review. It would be anomalous indeed if in a case such as the present all aspects of the justice system leading up to the wrongful conviction of Mr. Marshall, his subsequent release and his receipt of compensation could be inquired into by the Commission except the administrative decisions made by the judiciary.
I appreciate the concern expressed by my colleague, Justice McLachlin, that it would seriously undermine the independence of the judiciary from the executive branch of government if the executive could control or interfere with the authority of Chief Justices to assign judges to sit on particular cases. But in my view the judiciary's qualified immunity in respect of administrative matters would preclude this. This is not, however, the issue confronting us. What the Commission wishes to do, as I understand it, is inquire into why the former Attorney General was assigned to the panel given the prima facie case of lack of impartiality on his part. In other words, we have here a public perception that, in the absence of a satisfactory explanation, this may have been one of the things which went wrong in the Marshall case. I believe that since the very purpose of the Marshall inquiry is to find out what went wrong in the Marshall case, the public interest requires that this question be asked and answered.
I do not share the fear expressed by McLachlin J. that, if the Chief Justice of Nova Scotia is required to answer this question, Chief Justices generally will be impaired in their freedom to assign judges to particular cases. In this connection two important facts must be borne in mind. The first is that the question is sought to be asked in the context of an investigation into the administration of justice triggered by the fact that the system in some way went awry. This does not happen very often but, when it does, it is obviously a matter of great public concern. The second important fact is that we are dealing here with a prima facie case of lack of impartiality. If the question is not asked and answered in a satisfactory way the public perception may well be that the composition of the panel was a factor in the reasons for judgment of the Court of Appeal and in the quantum of compensation ultimately awarded to Mr. Marshall. When there is a real risk that judicial immunity may be perceived by the public as being advanced for the protection of the judiciary rather than for the protection of the justice system, the public interest in my view requires that the question be asked and answered.
I also agree with Cory J. that the Commission cannot determine whether justice was properly administered in the Marshall case if questions cannot be put to the Court of Appeal as to the content of the record on which its decision was reached. I agree with my colleague, Justice Lamer, that the judges cannot be asked why the final record ended up as it did. In other words, the judges cannot be asked why they admitted this and rejected that because this goes directly to their adjudicative function as to which they enjoy an absolute immunity. They can, however, in my view, be asked what as a factual matter comprised the final record for purposes of their decision. The record is, after all, the substratum upon which justice is administered in any case.
I have read with interest the reasons of my colleague, Justice La Forest, expressing concern over what he sees as an additional constitutional issue raised by this case. In my view, a distinction must be made between a Commission created for the purpose of inquiring into the administration of justice in a province and a Commission or other entity created for the purpose of looking into the conduct of judges. In the case of the latter I completely agree with my colleague that we would be clearly in the federal domain. This does not mean, however, that a Commission properly established to conduct an inquiry into the administration of justice in a province must eliminate the administrative decisions made by the judiciary, one of the participants in the administration of justice, from all consideration. To exclude administrative decisions made by the judiciary from the range of issues that such a Commission may consider on the ground that the federal government has already created a body to inquire into complaints against superior court judges would be to construe s. 101 of the Constitution Act, 1867 and the provisions of the Judges Act, R.S.C., 1985, c. J-1 , Part II, in an unusually broad manner that is inconsistent with the purpose and history of s. 92(14) and Part VII of the Constitution Act, 1867 .
This Court has previously commented on the special status of superior courts, noting that "They cross the dividing line, as it were, in the federal-provincial scheme of division of jurisdiction . . . ." (Justice Estey in Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, at p. 327). Moreover, Professor Hogg has noted that prior to Confederation each of the uniting provinces had its own system of courts, that "All these courts were expressly continued after confederation by s. 129 of the Constitution Act, 1867 , and their organization and jurisdiction remained the responsibility of the provinces by virtue of s. 92(14) ": see Constitutional Law of Canada, 2nd ed., at p. 134. Thus, provincial governments have always had a significant and legitimate interest in the role of superior courts in the administration of justice. While Part VII of the Constitution Act, 1867 places the responsibility for certain specific matters (such as the appointment of superior court judges) within federal jurisdiction, it certainly does not prevent provinces from inquiring into aspects of the administration of justice that do not fall squarely within Part VII of the Constitution Act, 1867 . Admittedly, s. 101 of the Constitution Act, 1867 provides the federal government with power to create courts that are exceptions to the otherwise unitary character of the system governing the administration of justice in Canada and the Canadian Judicial Council is an example of an exceptional body created to deal with complaints regarding the conduct of judges. But issues that are not specifically related to alleged improprieties on the part of judges and that are related to the administration of justice remain, in my view, subject to provincial jurisdiction and may properly be considered by bodies like the Commission.
This Commission is not conducting an inquiry into the conduct of the judges. The questions sought to be asked of them as to the composition of the panel and the content of the record are being raised solely for the purpose of determining where the administration of justice went awry. We cannot pre-judge the answers which might be given if the questions were permitted to be asked. It is in my view totally inappropriate, therefore, to treat this inquiry as if it were an investigation into allegations of impropriety against federally appointed judges. In my view, the only constitutional basis for prohibiting the questions in issue from being asked would be the doctrine of judicial immunity and, for the reasons given, I do not think that in the administrative area the doctrine can prevail over the greater public interest in disclosure in the rather special circumstances of this case.
I accordingly agree with the disposition of this appeal proposed by my colleague, Cory J.
//La Forest J.//
The following are the reasons delivered by
LA FOREST J. -- I have had the advantage of reading the reasons of my colleagues, Cory and McLachlin JJ. With respect, I agree with McLachlin J. that the Nova Scotia Public Inquiries Act, R.S.N.S. 1967, c. 250, is not specific enough to override the fundamental principle of judicial immunity from being compelled to testify about the decision-making process or the reasons for the composition of the court in a particular case.
Though the point was not argued, were the Act sufficiently explicit, I would tend to the view that it was, to that extent, beyond the legislative capacity of the province. The judicature provisions in Part VII of the Constitution Act, 1867 provide the constitutional underpinnings for the independence of the judiciary; the classic discussion of these provisions is of course that of Professor W. R. Lederman, "The Independence of the Judiciary" (1956), 34 Can. Bar Rev. 769, 1139. These provisions comprise a virtual code governing the constitutional status of the superior courts, and it is significant that all the powers relating to them are at the federal level, whether it be appointment (s. 96 ), tenure during good behaviour until 75 with the power of removal provided at the highest level (s. 99 ), and the fixing of salaries, allowances and pensions by Parliament (s. 100). In my view, the status and independence, and judicial functions of these judges thereby fall outside provincial competence, though a province may, of course, legislate in respect of their purely administrative functions under its power to legislate respecting the administration of justice (s. 92(14) , Constitution Act, 1867 ).
In speaking of the judicature provisions of the Constitution Act, 1867 as a code, I do not mean to suggest that there is no constitutional room for mechanisms for dealing with inquiries or complaints relating to the performance of judicial functions that are either not sufficiently serious as to warrant proceedings for removal, or which may precede or assist the conduct but not constitute an impediment to the proper functioning of such proceedings, or effectively amount to a substitute for them. The size and complexity of the judicial system have now become too substantial to consider each judge to be completely independent or "sovereign" in Douglas J.'s phrase (dissenting in Chandler, U.S. District Judge v. Judicial Council of the 10th Circuit, 398 U.S. 74 (1970), at p. 136). Sole reliance on the power of removal to deal with such issues is no longer realistic. Though I take Douglas J.'s point that every judge must work in an institutional setting that supports judicial independence even from other judges, I agree with Cory J. that there is need for credible complaint procedures to ensure continued public confidence in the administration of justice. In my view, since this matter appears, as I noted, to fall outside provincial competence so far as it affects the status, independence and judicial functions of superior court judges, the federal Parliament may, under its general power under s. 91 of the Constitution Act, 1867 , legislate in this area; see Landreville v. The Queen, [1977] 2 F.C. 726 (T.D.), per Collier J., at p. 746. (I say nothing, however, about whether the commission considered there met other constitutional requirements.) For certain matters, at least, it may also be necessary or desirable to enlist in aid Parliament's power under s. 101 of the Constitution Act, 1867 to create an additional court for the better administration of the laws of Canada. That is what was done when the Canadian Judicial Council (the duties of which include the investigation of complaints and allegations against federally appointed judges) was established in 1971: see Judges Act, R.S.C., 1985, c. J-1 , Part II.
To conclude, bodies which are set up or which in the course of their duties are required to undertake an examination of the conduct of a superior court judge in the exercise of judicial functions must be so constructed as to respect the letter and the underlying purpose of the judicature provisions of the Constitution. Nor can investigatory bodies act in a manner that might materially impair the protection accorded by s. 99 or the independence and impartiality of the judiciary. Many of the points to bear in mind in structuring such bodies are sensitively described in a case cited by Cory J.: In the Matter of Certain Complaints under Investigation by an Investigating Committee of the Judicial Council of the Eleventh Circuit, 783 F.2d 1488 (11th Cir. 1986). Though the relevant United States constitutional provisions vary to a degree from our own, much of what is said there is equally applicable in this country. While the commission under consideration is undeniably manned by very able and experienced jurists, they are, of course, not acting in that capacity here, and the institutional structure and modalities of the commission are not really tailored to the task of inquiring into judicial functions such as those in question in the present case. As a result, quite apart from the division of powers question, such a commission may well run afoul of the judicature provisions of the Constitution.
I should add that I also agree with McLachlin J.'s views that the commission's mandate does not trench on the criminal law power.
I would dismiss the appeals.
//McLachlin J.//
The judgment of L'Heureux-Dubé, Gonthier and McLachlin JJ. was delivered by
MCLACHLIN J. -- These appeals raise the question of whether an investigative commission of inquiry can compel judges involved in the matters being investigated to testify as to the reasons for their judicial decision and the composition of the panel that heard the case.
Background
The Actors Involved
It will be useful to first identify the various actors involved in these appeals. On November 5, 1971, Donald Marshall, Jr., a 17-year-old native adolescent boy around whom most of these appeals turn, was convicted of the murder of Sandford William Seale, who had died from knife wounds inflicted on May 28-29, 1971. Marshall consistently maintained his innocence from the day he was first arrested, throughout his trial and subsequent imprisonment, to the date of his eventual release in May of 1983. He was released after favourable resolution of a reference made by the federal Minister of Justice to the Supreme Court of Nova Scotia, Appeal Division, pursuant to s. 617 (b) (now s. 690(b)) of the Criminal Code, R.S.C. 1970, c. C-34. He had been in prison some 11 years before his claim of innocence was finally upheld. The failure of the Nova Scotian justice system in Donald Marshall, Jr.'s case led the Attorney General of Nova Scotia in October 1986 to establish a Royal Commission pursuant to the Public Inquiries Act, R.S.N.S. 1967, c. 250, with a mandate to inquire into the prosecution of, and subsequent handling of, Donald Marshall, Jr.'s case.
T. Alexander Hi