Di Iorio v. Warden of the Montreal Jail

Di Iorio v. Warden of the Montreal Jail
Collection
Supreme Court Judgments
Date
1976-04-01
Report
[1978] 1 SCR 152
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe
On appeal from
Quebec
Subjects
Constitutional law
Criminal law
Decision Content
SUPREME COURT OF CANADA
Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152
Date: 1976-04-01
Nicola Di Iorio and Gérard Fontaine
Appellants;
and
The Warden of the Common Jail of the City of Montreal Respondent;
and
Rhéal Brunet et al. Mis en cause; and
The Attorney General for Canada, The Attorney General for Quebec, The Attorney General for Ontario, The Attorney General for Alberta, The Attorney General for British Columbia and The Attorney General for New Brunswick Intervenors.
1975: November 18, 19 and 20; 1976: April 1.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Constitutional law — Provincial statute providing for a public inquiry into organized crime — Witnesses refusing to testify sentenced for contempt of court — Distribution of powers — Administration of justice and criminal procedure — Police Act, 1968 (Que.), c. 17, s. 19 — Public Inquiry Commission Act, R.S.Q. 1964, c. 11, s. 1 — British North America Act, ss. 91, 92, 96 and 101 — Code of Civil Procedure, art. 51.
Criminal law — Evidence — Witnesses before a provincial inquiry commission — Protection against self-incrimination — Habeas corpus jurisdiction, civil or criminal — Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5 - Code of Civil Procedure, arts. 309 and 851.
Appellants were found guilty of contempt for having refused to testify at an inquiry before the Quebec Police Commission and sentenced to one year in jail, this being the maximum provided under art. 51 of the Code of Civil Procedure. The inquiry was requested by the Lieu­tenant-Governor in Council pursuant to s. 19 of the Police Act, which authorizes the holding of an inquiry into organized crime. Appellants appealed from their sentence by petitions for writs of habeas corpus with certiorari in aid. These petitions were dismissed by the Court of Queen's Bench, Crown side, and by the Court of Appeal of the province of Quebec, and appellants appealed to this Court. They challenged the validity of the Order in Council and of s. 19 of the Police Act on constitutional grounds. Consequently, this Court con­sidered the constitutional question, namely, whether the Order in Council and s. 19 (and other provisions which were really attacked only as related to s. 19) were ultra vires the provincial legislature. Appellants, supported by the Attorney General for Canada, contended that this is criminal law legislation, which under s. 91(27) of the B.N.A. Act is within the exclusive legislative authority of the Parliament of Canada. The respondent and the mis en cause, supported by the Attorneys General for the intervening provinces, claimed that under s. 92(14) the provinces have jurisdiction to legislate in relation to the administration of justice in the province, including the administration of justice in criminal proceedings.
Held (Laskin C.J. and de Grandpré J. dissenting): The constitutional question should be answered in the negative and the appeal dismissed.
Per Martland, Judson, Ritchie and Pigeon JJ.: The scope of "Criminal Law" and "Procedure in Criminal Matters" in s. 91(27) B.N.A. Act is narrowed by the allocation to the provinces of jurisdiction over the "Administration of Justice" in all matters civil and criminal, which has consistently been held to include the detection of criminal activities.
In an examination of the procedure at a coroner's inquiry, this Court recently held in Faber v. The Queen, [1976] 2 S.C.R. 9, that when a person is not charged, the provincial statute requiring him to testify and making him liable to punishment for contempt of court in the event of refusal was valid. The conclusion affirmed by the majority in this Court was that this procedure was not "a procedure in a criminal matter". This was said in a case where, after an open verdict of death due to a crime by a person or persons unknown, the coroner resumed the inquest for the sole purpose of ascertaining who might be charged with such crime. If an inquest carried out with a view to such a consequence can be said not to be a "procedure in a criminal matter", it appears to me that the same must a fortiori be said of an inquiry in conclusion of which no more can be done than the making of a report to the provincial Attorney General. There is no reason to take a different view where the object of the inquiry, instead of being the gathering of information sufficient to lay a charge for criminally causing the death of another person, is the gathering of information identifying persons engaged in organized crime and describing their activities. If appellants testify, they will have the benefit of the protection contemplated in the Canada Evidence Act, s. 5(2) of which states that this protection is granted to a witness forced to reply under an Act of any provincial legislature.
The fact that appellants were sentenced to one year in jail does not support appellants' submission that the matter was "criminal". Provincial legislatures are empowered to inflict punishment by fine or imprisonment for violation of provincial laws. In the present case, the sentence was handed down under art. 51 of the Code of Civil Procedure and was coercive not punitive.
Finally, appellants would not be without redress if the legislation was unconstitutional as they contend. Because they were committed under provincial legisla­tion, they should apply to the courts of civil jurisdiction, that is, the Superior Court, by habeas corpus under art. 851 of the Code of Civil Procedure.
Per Martland, Judson, Ritchie, Spence and Dick-son JJ.: Section 92(14) of the B.N.A. Act, which gives the provinces power over "Administration of Justice within the Province", cannot be interpreted as meaning the administration of civil justice alone. Canadian legis­lative history, as well as the development of legal institu­tions within the provinces since Confederation, do not support such a restrictive interpretation. Implicit in the grant to the provinces of exclusive legislative authority in respect of administration of justice and in the grant to the federal government of exclusive legislative authority in respect of criminal law and procedure is an accept-ance of a certain degree of overlapping. However, in the case at bar the Inquiry does not act as a criminal court or exercise criminal jurisdiction: its function is merely to investigate and report. The legislation under attack is based solely on the province's jurisdiction in the "Administration of Justice". This is an independent source of provincial power which does not need to rely on some other head of power.
The exact scope of s. 92(14) of the B.N.A. Act has never been dealt with by this Court. The constitutional question raised by the case at bar touched upon directly only in In re Public Inquiries Act.' In re Clement [1919] 3 W.W.R. 115, where it was held that a province could make investigations into breaches of Dominion laws since the ferreting out of crime and the identification of criminals was one of the functions under the administra­tion of justice, and during such an inquiry could compel a witness to give evidence which might tend to incrimi­nate him. As is the case with a coroner's inquest, which in Faber v. The Queen, [1976] 2 S.C.R. 9, was held not to be a matter of criminal law, the Quebec Crime Inquiry deals with broad social interests and there is no lis or accused; the concern is the gathering of informa­tion, not adjudication.
In light of the provisions of the Canada Evidence Act, s. 5(2) and the Code of Civil Procedure, art. 309, it cannot be maintained that the Crime Commission's powers of subpoena and imprisonment for contempt interfered with a citizen's right to protection against self-incrimination. This right, which originated in common law, has been abolished in Canada. However, a person who appears before a provincial inquiry commis­sion is a "witness" within the meaning of s. 5 and benefits from the protection given by subs. (2). Whether or not one agrees with a result which may force a person to assist in an investigation of his criminal activity, Canadian laws, both federal and provincial, compel such a result. Quebec's Crime Inquiry introduces no new and insidious form of investigation into our judicial system and there is no evidence before the Court that it is a colourable attempt to evade the procedural provisions of the Criminal Code.
Per Beetz J.: Before Confederation, the provinces were in charge of the administration of justice, including criminal justice. Section 91(27) of the B.N.A. Act gave exclusive legislative authority in criminal law, substan­tive and procedural, to the Parliament of Canada. But subject to this provision and to the paramountcy of federal law enacted under primary or ancillary federal jurisdiction, the provinces were to remain responsible in principle for the enforcement of criminal law and to retain such power as they had before with respect to the administration of criminal justice. Section 92(14) of the B.N.A. Act does not distinguish between civil and crimi­nal justice: the natural meaning of the expression "the administration of justice" is broad enough to encompass both. As for the power given to Parliament under subs. (27), it was described by this Court in A.G. Que. v. A.G. Can., [1945] S.C.R. 600, as the power to determine what shall or what shall not be "criminal", and to determine the steps to be taken in prosecutions and other criminal proceedings before the courts. Section 19 of the Police Act does not correspond to this description, and must therefore be construed as being a provision bearing on the administration of criminal justice.
The penalties imposed under the impugned legislation in cases where witnesses refuse to testify are of a coercive nature. Even if they are punitive, s. 92(15) would suffice to insure their constitutionality unless they be used as a colourable device to create new crimes, or to punish old ones otherwise than under the Criminal Code.
Per Laskin C.J. and de Grandpré J., dissenting: If one accepts the argument that it is open to a province to authorize a provincially-established tribunal to conduct an inquiry, with supporting sanctions to compel appearance and testimony, into crime and into crime in all its ramifications, the provinces would then have this power in respect of any matter which falls with exclusive federal competence, such as bankruptcy, insolvency and so on. In support of the constitutionality of s. 19 of the Police Act, the provinces purport to find in the legisla­tive power in relation to "the administration of justice in the Province" ample competence to authorize inquiries which do not involve accusations or charges and do not involve prosecutions for offences. This argument rests on a distinction, which does not seem proper, between a coercive inquiry into criminality and a coercive inquiry into other fields where there is exclusive federal legisla­ture power.
Although it is recognized that s. 92(14) of the B.N.A. Act gives the provinces a source of authority that enables them to blend with exercises of federal power when the latter is used to invest provincially-established Courts with jurisdiction in matters within exclusive fed­eral competence, federal overriding authority is always in reserve. Thus, although the Parliament of Canada has designated the provincial courts to administer criminal law, they have to do so according to procedures which under s. 91(27) of the B.N.A. Act, are within exclusive federal competence.
None of the cases cited really decided the constitu­tional question raised in the case at bar. The ancillary questions which they dealt with have no influence on the validity of the challenged provision, namely, s. 19 of the Police Act. Although a province may establish provin­cial or local police forces, it cannot invest its police officers with some fresh power if no such power was conferred by the existing federal criminal law. To the extent to which enforcement of the criminal law is left with these police forces, it is there by virtue of federal law or by the continuation of pre-confederation powers. A province may not establish an inquiry commission which, by stopping at investigation and detection and avoiding entry or possible entry into prosecution, would take over this large area of the criminal law, save for the minimal restraint of s. 5 of the Canada Evidence Act. Such an inquiry into crime has nothing to do with the administration of justice and is a direct invasion of exclusive federal competence. It is not possible, by pre-scribing a different procedure for enforcing the criminal law than what Parliament ordains, for example, by doing "wholesale" what is done under the Criminal Code by "retail", to change the distribution of exclusive legislative authority in the field of criminal law and criminal procedure.
Since Parliament could authorize an inquiry into the same subjects as those covered by the challenged legisla­tion, the B.N.A. Act should be construed as far as possible to preclude both levels of governmental author­ity from being entitled to converge on an individual for the same purpose and possibly even at the same time.
[Faber v. R., [1976] 2 S.C.R. 9; In re Public Inquiries Act: In re Clement, [19.19] 3 W.W.R. 115, 33 C.C.C. 119, 48 D.L.R. 237; Re Wilson Inquest (1968), 66 W.W.R. 522, applied; R. v. Pelletier (1974), 4 O.R. (2d) 677; Proprietary Articles Trade Association v. Attorney General for Canada, [1931] A.C. 310; Refer­ence re Validity of the Combines Investigation Act and of s. 498 of the Criminal Code, [1929] S.C.R. 409; R. v. Coote (1873), L.R. 4 P.C. 599; In re Prohibitory Liquor Laws (1895), 24 S.C.R. 170; Reference re the Adoption Act, [1938] S.C.R. 398; R. v. Coroner of Langley (1968), 67 D.L.R. (2d) 541, rev'd. sub nom. R. v. McDonald (1968), 2 D.L.R. (3d) 298; Wolfe v. Robin-son, [1962] O.R. 132, followed; Batary v. Attorney General for Saskatchewan, [1965] S.C.R. 465, distin­guished; McKay et al. v. R., [1965] S.C.R. 798; Attor­ney General for Quebec v. Attorney General for Canada, [1945] S.C.R. 600; Valin v. Langlois (1879), 3 S.C.R. 1; Attorney General for Ontario v. Hamilton Street Railway Company, [1903] A.C. 524; Goodyear Tire & Rubber Co. v. R., [1956] S.C.R. 303; Kalick v. R. (1920), 61 S.C.R. 175; Bédard v. Dawson, [1923] S.C.R. 681; Harrison v. R., [1925] 2 W.W.R. 407; Webster & Kirkness v. Solloway Mills & Co. Ltd., [1930] 3 W.W.R. 445; Staples v. Isaacs, [1940] 2 W.W.R. 657; Klein v. Bell, [1955] S.C.R. 309; Minister of National Revenue v. Lafleur, [1964] S.C.R. 412; In re Storgoff [1945] S.C.R. 526; Canadian Pacific Wine Co. v. Tuley, [1921] 2 A.C. 417; Re Poje, [1953] 1 S.C.R. 516; Re Armstrong, [1892] 1 Q.B. 327; Birks v. City of Montreal, [1955] S.C.R. 799; Switzman v. Elbling, [1957] S.C.R. 285, referred to.]
APPEAL from a decision of the Court of Appeal of Quebec[1] affirming a judgment of the Court of Queen's Bench, Crown side, dismissing appellants’ petitions for writs of habeas corpus and certiorari in aid. Appeal dismissed, Laskin C.J. and de Grandpré J. dissenting.
René Maranda, for the appellants.
Gérard Tremblay, Roger Thibaudeau, Q. C., Jacques Richard and Olivier Prat, for the respondent and the mis en cause.
Philippe Landry, Q.C., for the Attorney General for Canada.
M. Manning, for the Attorney General for Ontario.
W. Henkel, for the Attorney General for Alberta.
F. A. Melvin and N. J. Prelypchan, for the Attorney General for British Columbia.
Hazen Strange and B. A. Crane, for the Attor­ney General for New Brunswick.
The judgment of Laskin C.J. and de Grandpré J. was delivered by
THE CHIEF JUSTICE (dissenting)—I have had the advantage of seeing the reasons in this appeal prepared by my brother Pigeon before embarking on my own. A constitutional issue of far-reaching significance is raised here which does not appear to have been faced as directly in any previous decision as it must be faced here. The issue, in short, is this. Since the Parliament of Canada has exclusive legislative authority in relation to the criminal law including procedure in criminal matters (and I shall refer later to the judicially recognized scope of this power), is it open to a province to authorize a provincially-established tribunal to conduct an inquiry, with supporting sanctions to compel appearance and testimony, into crime and into crime in all its ramifications, including the organi­zations and persons involved? And if a province has this power in respect of crime, would it not have it also in respect of bankruptcy and insolven­cy, indeed in respect of any matter which falls with exclusive federal competence, as do the matters just enumerated, and this simply because an aspect of the question might be said to be within s. 92? To take another example, akin in legislative sub­ject matter to that covered by the inquiry in the present case, would it not also be open to the province to authorize a full-scale inquiry into monopoly and other anti-competitive practices which have been dealt with by the Parliament of Canada, with judicial approval, under its criminal law power?
The need, the desirability of an inquiry such as that put on foot by Order-in-Council No. 2821-72 issued by the Lieutenant-Governor in Council of Quebec under s. 19 of the Police Act, 1968 (Que.), c. 17, as amended, is beside the point. We are not concerned here with some private inquiry, with a piece of research by a scholar, with a journalistic investigation, but with a state-sanctioned inquiry by a public tribunal with compulsory and punitive powers against those refusing to cooperate in its proceedings.
The provincial case, supported by four other provinces and opposed by the Government of Canada, is founded on the legislative power con­ferred on the provincial Legislatures by s. 92(14) of the British North America Act, assisted by the provisions for sanctions found in s. 92(15). I need not dwell on s. 92(15) in this case. If the Province of Quebec has validly established the inquiry I would not question the grant of authority to the tribunal conducting it to punish for contempt recalcitrant witnesses or persons properly subpoe­naed who refuse to be sworn.
Section 92(14) of the British North America Act confers the following legislative power upon provincial Legislatures:
92....
14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction and including Proce­dure in Civil Matters in those Courts.
A number of issues raised by the relation of this power to other prescriptions of the British North America Act, such as ss. 96 and 101, and of course, the prescriptions respecting federal legisla­tive power under s. 91, may be quickly laid to rest. A province may establish Courts or tribunals to administer matters falling within its legislative power, provided that the limitations as to the character and stature of the courts or tribunals arising under s. 96 are observed: see Labour Rela­tions Board of Saskatchewan v. John East Iron Works Ltd.[2]; Tomko v. Labour Relations Board (Nova Scotia[3]'; and see also Dupont v. Inglis[4]. A province may establish Courts and endow them with a jurisdictional capacity to administer even federal legislation, subject to the power of the Parliament of Canada to repose exclusive jurisdic­tion in such matters in a Court of its own creation under s. 101: see Board v. Board[5]; cf. Hellens v. Densmore[6]; and see Reference re Divorce Court
Act (P.E.I.)[7]; Pringle v. Fraser[8]. Where a province
establishes such a Court, the substantive law administered therein, being in relation to matters falling within exclusive federal competence, would have to come from federal enactments; cf Attorney General of British Columbia v. McKenzie[9]. The Parliament of Canada could and has, in some cases, fortified this exercise of federal jurisdiction by provincial courts by designating them to be the judicial enforcement agencies. The commonest illustration of this is, of course, in the federal provisions for enforcement of the criminal law.
A provincial Court which administers federal law, be it a superior court or not, may do so through its own procedures unless the federal legislation prescribes the procedure to be followed. An example of this is found in the field of bank­ruptcy. There is one important qualification to provincial court resort to its own procedure and that is where the procedure is in a criminal matter. This, under s. 91(27) of the British North America Act, is within exclusive federal competence: see In re Storgoff[10] and cf Minister of National Reve­nue v. Lafleur[11].
The submissions on behalf of the Attorney Gen­eral of Quebec and of the supporting provincial Attorneys General do not, as I appreciate their force, deny the foregoing propositions but rather distinguish them by purporting to find in the legis­lative power in relation to "the administration of justice in the Province" ample competence to authorize inquiries which do not involve accusa­tions or charges and do not involve prosecutions for offences. The fact that, consequentially, charges may result, or that remedial legislation may be called for which only the Parliament of Canada may enact, is not, according to the provin­cial contentions, sufficient to deny provincial au­thority to establish the inquiry. We are thus brought to consider not what s. 92(14) does not cover but rather what it embraces. The argument before this Court, as advanced by the proponents of the validity of this inquiry, appeared to me to rest, to some degree at least, on a distinction between a coercive inquiry into crimi­nality and a coercive inquiry into other fields where there is exclusive federal legislative power. The one is said to relate to the administration of justice in the Province; the others, apparently, not so. I fail to see the distinction. A coercive inquiry, say into the operation of bankruptcy laws, or practices relating to bankruptcy and insolvency is as much an inquiry into the administration of justice, civil justice in fact, as an inquiry into crime and criminality; and if the latter is validly open to a Province, so must be the former; and so must be any coercive inquiry which a Province may wish to mount into fields where exclusive legislative power rests with the Parliament of Canada. Why not, to take another example, an inquiry into penitentiary operations which are within exclusive federal power under s. 91(28) of the British North America Act, on the ground that under s. 92(6) public and reformatory prisons are within provincial jurisdiction? No doubt, the Prov­ince would not claim power to authorize its tri­bunal to require the presence of penitentiary inmates at the inquiry, any more than it could require their attendance in the present case but, apart from that, former inmates and anyone else whom the inquiry tribunal wished to hear could be compelled, if the provincial contention is correct.
It seems to be quite plain that if "administration of justice in the Province", within s. 92(14), extends to civil and criminal justice without limita­tion (and this is the contention here of the Prov­inces), it must extend to any area of civil law or public law or criminal law, regardless of where the legislative power resides substantively in those various fields. True enough, areas other than the criminal law area are not before us, but they can hardly be ignored when an assertion as commanding as the one made by the Provinces is presented.
"Administration of justice in the Province" within s. 92(14) is not a head of power which has hitherto been closely examined in the case law. It has been regarded, and properly so, as supporting provincial appointment of judicial officers and Judges other than those covered by s. 96: see, for example, Regina v. Bush[12]. It certainly envisages the provision of facilities through which Courts and like tribunals can carry out their functions, and also, I would say, the appointment of support staff and enforcement officials necessary to assist in the judicial process. In Valin v. Langlois[13], the Supreme Court of Canada took s. 92(14) to relate to the organization of courts of justice for the Province and Henry J. expanded on this to say (at p. 67) that "administration of justice in the Prov­ince" means "the power of legislating for the administration of justice in the Province in regard to the subjects given by the [British North Ameri­ca] Act and, to that extent only, to provide for the constitution, maintenance and organization of pro­vincial Courts, including the procedure necessary for the administration of justice in reference to those and kindred subjects". I do not put Valin v. Langlois forward as a case that has any direct affinity with the present one, especially when it was concerned with the validity of a federal statute imposing duties on provincial Superior Courts and not, as here, with a provincial statute and Order­in-Council whose validity has to be considered in the absence of competing federal legislation. It is, however, indicative of a view of s. 92(14) which, in my opinion, pays due regard to the scheme of distribution of legislative power and to the limita­tions on provincial competence that arise out of the catalogue of exclusive federal powers.
Although, like other heads of provincial power, s. 92(14) cannot be used to invade exclusive feder­al powers, it does nonetheless give the Province a source of authority that enables it to blend with exercises of federal power when the latter is used to invest provincially-established Courts with jurisdiction in matters within exclusive federal compe­tence. Federal overriding authority is in reserve, however, in respect of those matters.
It is unnecessary for a Province to rely on s. 92(14) if it would authorize an inquiry into an industry or an activity that is within provincial competence. The Province can rely for this on other heads of power in s. 92 which embrace the industry or the activity within their scope. It would, of course, rely on s. 92(14) if the inquiry was directed to the operation of provincial Courts or of other tribunals that determine rights and liabilities. What is involved here, however, is not of that order.
I do not think that what was said by Duff C.J. in Reference re the Adoption Act[14], at p. 403, as quoted by my brother Pigeon assists the provincial contentions in this case. The learned Chief Justice was speaking principally of the administrative enforcement of the substantive criminal law enacted by Parliament, enforcement by municipal or provincial police forces; and if the generality of his words as to "the suppression of crime and disor­der" and as to "social conditions having a tenden­cy to encourage vice and crime" might suggest a so-called preventive scope for provincial legislation in the field of crime or its incipient conditions, they must be read today as qualified by later decisions of this Court, such as those in Johnson v. Attorney General of Alberta[15], and Switzman v. Elbling and the Attorney General of Quebec[16]. I may refer also in this connection to the statement of the Privy Council in Attorney General of Ontario v. Canada Temperance Federation[17], at p. 207, that "to legislate for prevention appears to be on the same basis as legislation for cure".
Bédard v. Dawson and Attorney General of Quebec[18], which is the authority usually relied on to support provincial power to pass legislation (in the words of Duff J., as he then was, in that case) "aimed at suppressing conditions calculated to favour the development of crime rather than at the punishment of crime" (at p. 684), is a case where the Province could claim constitutional support because it was dealing with the use and occupation of property, albeit for purposes prohibited by the Criminal Code. That was the view of this Court in its cautious treatment of the Bédard case in the Switzman case, supra. I know of no case, certainly none in the Privy Council or in this Court, which has recognized an untrammelled right of the Prov­ince to legislate, as it has done here in relation to the criminal law, without even any pretence of some constitutional anchor in substantive provin­cial legislative authority, such as was evident in the recent inquiry by the Cliche Commission, in Quebec, into violence in the construction industry, and in the recent Waisberg Inquiry in Ontario into practices, including unlawful activities, in the building industry.
It is, I think, important to remember in assess­ing the scope of provincial competence under s. 92(14) that this is not a "non obstante" power. Rather, it is federal competence, both in respect of the matters enumerated in s. 91 and in respect of the powers conferred by s. 101, that is conferred "notwithstanding anything in this Act".
Had the Parliament of Canada established an inquiry such as the one in question here, and with the same scope, there would be no doubt of its power to do so, nor of its power to designate a provincial tribunal to carry it out: see In re Vancini[19]; Prince Edward Island Marketing Board v. H. B. Willis Inc.[20]; cf Coughlin v. Ontario Highway Transport Board[21]; Registrar of Motor Vehicles v. Canadian American Transfer Ltd.[22] It would certainly be entitled to assert its pre-emi­nence in relation to criminal law and procedure in criminal matters. I understood counsel for the Attorney General of Ontario to deny that the Parliament of Canada may exercise such author­ity, and if I am right in that understanding, I am unable to agree with this submission. It appears to be founded on the history of pre-confederation and post-confederation legislation respecting public in­quiries (see 1844-46 (Can.), c. 38; C.S.C. 1859, c. 13, s. 1; 1868 (Can.), c. 38, ss. 1 and 2), and the exclusion from post-confederation federal legisla­tion of the words "the administration of justice therein", which were included in the pre-confeder­ation inquiries legislation. This, in my opinion, begs the question because it does not give an answer to the scope of the power in relation to "the administration of justice in the Province" in the context of the British North America Act.
Admittedly, prosecution of crime, be it through provincially-organized courts or not, must be based on substantive law and procedure enacted and prescribed by the Parliament of Canada. The pro­vincial contention is that this limitation does not apply if for prosecution of particular charges in particular cases there is substituted a general com­mission of inquiry, an administrative or quasi-judi­cial investigation into crime, though surrounded by sanctions against witnesses and potential witnesses of a kind similar to those available in prosecutions.
Section 19 of the Quebec Police Act, as enacted in 1968, and amended by 1971 (Que.), c. 16, s. 4 and 1972 (Que.), c. 16, s. 1 is a new provision introduced into a new embracing Act respecting police forces in Quebec, and I regard it as of some significance that s. 19 exists side by side with s. 1 of the Public Inquiry Commission Act, R.S.Q. 1964, c. 11, as amended. I set out these two provisions in parallel paragraphs, as follows:
19. The Commission shall make an inquiry, whenever requested to do so by the Lieutenant-Gov­ernor in Council, respect­ing any aspect of crime which he indicates.
The Commission shall also make an inquiry into the activities of an organi­zation or system, its ramifications and the per-sons involved, to the extent prescribed by the Lieutenant-Governor in Council whenever he has reason to believe that in the fight against organ­ized crime or terrorism and subversion, it is in the public interest to order such an inquiry to be held.
1. Whenever the Lieu-tenant Governor in Coun­cil deems it expedient to cause inquiry to be made into and concerning any matter connected with the good government of the Province, 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, he may, by a commission issued to that effect, appoint one or more commissioners by whom such inquiry shall be conducted.
Section 1 of the Public Inquiry Commission Act goes back, in substance, to s. 1 of 1869 (Que.), c. 8. I notice that both the original and the present s. 1 authorize inquiries to be directed into any matter connected with the good government of the prov­ince and the administration of justice. It is emi­nently arguable that if the contentions of the provincial Attorneys General as to the scope of the authority conferred by the words "administration of justice" is as broad as they allege, it would have been unnecessary to introduce the particular provi­sion as to crime investigations found in s. 19 of the Police Act. As I read s. 1 of the Public Inquiry Commission Act, it is broad enough to authorize the designation of the Quebec Police Commission as an inquiry tribunal under s. 1 and, certainly, its members could be so designated and appointed. The enactment of s. 19, in short, suggests that something more than what "the administration of justice in the Province" connotes was introduced, unless it is simply a case of special reference to underline the serious view taken by the Legislature of the matters covered by s. 19.
The competing contentions of counsel brought to the fore a number of cases which call for examination on the constitutional issue in this case. They are, respectively, Regina v. Coote[23]; In re Public Inquiries Act: In re Clement[24]; Batary v. Attorney-General of Saskatchewan[25]; and Faber v. The Queen[26].
Regina v. Coote is relied upon for the proposi­tion that a provincial Legislature may provide for an inquiry by a provincially constituted and appointed tribunal into matter that involve or relate to the criminal law, and which therefore are, substantively within exclusive federal legislative jurisdiction. I do not think that the Privy Council's decision says this. The case came to the Privy Council on the question of the admissibility, on a trial for arson, of depositions of the accused taken at a fire marshal's inquiry authorized by provincial legislation. Under this legislation, the fire marshal was required, whenever any building or property was damaged by fire, to institute an inquiry into the cause or origin of the fire, and, in that connec­tion, to ascertain whether it was kindled by design or was the result of negligence or accident. Power to summon witnesses to give information or evi­dence was conferred upon the fire marshal who also was empowered to commit for contempt for refusal to testify. The Privy Council held, on the main point before it, that the depositions were admissible against the accused, save as to answers to question to which he objected as tending to criminate him but which he was improperly com­pelled to answer. On the issue allegedly germane to the present case the Privy Council said only this (at p. 605):
... It was held by the whole Court [the Quebec Court of Queen's Bench, Appeal Side] (in their Lordships' opinion rightly) that the constitution of the Court of the "Fire Marshal", with the powers given to it, was within the competency of the Provincial legislature; …
This observation has been regarded as going to a s. 96 question, namely, whether the fire marshal as a provincial appointee was given powers exercis­able only by a superior or county Court Judge or powers analogous thereto: see Reference re the Adoption Act[27]. Moreover, having had the advan­tage of seeing the reasons for judgment of the various members of the Quebec Court of Queen's Bench, Appeal Side, which heard Coote's appeal from a judgment on a reserved question as to the admissibility of the depositions (by a majority of three to two it held them inadmissible), I find that they do not support the unanimous conclusion attributed to the Quebec Court by the Privy Council.
It is true that in his reasons for judgment, Mr. Justice Drummond, one of the five Quebec judges who sat on the appeal, referred to the objection that the legislation respecting inquiries by fire marshals was invalid as encroaching on federal legislative power in respect of criminal matters, and then asserted that "as to this objection all the Judges here agreed that the local Act in question gave to the fire marshals power of investigation or inquiry only and did not interfere with the author­ity of the Federal Legislature in criminal matters". However, Chief Justice Duval concluded his reasons by saying that "I make no remarks on the constitutionality of the Act . . . limited as it is in its provisions, as no doubt was expressed on the sub­ject". Mr. Justice Caron said that it was unneces­sary to decide the constitutional question and he did not propose to deal with it. Mr. Justice Badgley, who had reserved the question of the admissi­bility of the depositions for the opinion of the Court, concluded that the fire marshal inquiry legislation was valid provincial legislation which did not encroach on the federal criminal law power in giving authority to inquire into the cause and origin of fires. Mr. Justice Monk concerned him-self with the propriety of reserving the evidence question and did not touch the constitutional point.
Apart altogether from any issue as to whether the Privy Council correctly appreciated the views of the members of the Quebec Court of Queen's Bench on the validity of the fire marshal inquiry legislation, there is a vast difference between the enactment under discussion in the Coote case and s. 19 of the Quebec Police Act. The Coote legisla­tion had only an incidental connection with the criminal law; it was rather concerned with the introduction of a procedure for determining the cause and origin of fires, which would go to ques­tions of safety and prevention of accidents, arising through negligence or otherwise, and in that con­nection embracing also inquiry into whether a fire was deliberately set. In contradistinction to the Coote legislation, s. 19 of the Police Act has a direct and unqualified thrust into the substantive criminal law. The Commission has no other man-date than to inquire into the existence of crime, in all its ramifications, and it is not expressly limited to what is defined in the federal Criminal Code. Yet it cannot be doubted that only the federal Parliament can prescribe what is criminal in Canada for all of Canada.
Re Public Inquiries Act: re Clement arose out of a reference to the British Columbia Court of Appeal as to the validity of the provincial Public Inquiries Act and as to whether it was within the powers of the Lieutenant-Governor in Council under that Act to establish an inquiry to determine (1) whether intoxicating liquor had been unlawful­ly imported into the province since the passing of a federal Order-in-Council prohibiting any such importation and (2) whether sales of intoxicating liquor had been made in the province contrary to a provincial prohibition statute.
The British Columbia Court of Appeal deter-mined, easily enough, that the Public Inquiries Act was valid provincial legislation. On its face it provided (and it was common provincial legisla­tion) for inquiries into, inter alia, the good government of the province, the conduct of public busi­ness and the administration of justice. Again, there was no doubt of the power