Scowby v. Glendinning

Scowby v. Glendinning
Collection
Supreme Court Judgments
Date
1986-10-09
Report
[1986] 2 SCR 226
Case number
17739
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
Saskatchewan
Subjects
Constitutional law
Professional law
Notes
SCC Case Information: 17739
Decision Content
Scowby v. Glendinning, [1986] 2 S.C.R. 226
Corporal V. B. Scowby, Corporal W. L. Ganes, Constable J. A. Clarke, Constable A. R. Hopper, Constable B. C. Woodward, and Stephen B. MacBride Appellants
v.
Peter Glendinning, Chairman of a Board of Inquiry Constituted Pursuant to Section 29 of The Saskatchewan Human Rights Code Respondent
and
Attorney General for Ontario, Attorney General of Quebec, Attorney General for New Brunswick, Attorney General for Alberta, Attorney General for Saskatchewan Interveners
indexed as: scowby v. glendinning
File No.: 17739.
1985: February 19; 1986: October 9.
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 saskatchewan
Constitutional law ‑‑ Division of powers ‑‑ Judicial powers ‑‑ Allegations of arbitrary arrest and detention contrary to provincial human rights code ‑‑ Provincial offence overlapping tort of false imprisonment ‑‑ Adjudication of tort reserved to s. 96 courts ‑‑ Whether or not provincial human rights commission had jurisdiction to investigate and adjudicate on complaints ‑‑ Constitution Act, 1867, s. 96 ‑‑ The Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, ss. 7, 29(1), (2), 31(7), (8), 35.
Constitutional law ‑‑ Division of powers ‑‑ Criminal law and procedure in criminal matters ‑‑ Allegations of arbitrary arrest contrary to provincial human rights code ‑‑ Whether arbitrary arrest a matter of criminal law or criminal procedure.
Police ‑‑ Regulation ‑‑ R.C.M.P. ‑‑ Allegations of arbitrary arrest contrary to provincial human rights code ‑‑ Administration and direction of R.C.M.P. exclusive federal power ‑‑ Whether individual officers subject to provincial law.
Appellants, R.C.M.P. officers in Saskatchewan, arrested a man in a hunting cabin for assaulting a conservation officer and then ordered the other occupants from the cabin, without dressing and hands on their heads, and told them to lie on the ground. After half an hour in sub‑zero weather the complainants were told to get up one at a time, asked their names and addresses, and told to go back into the cabin. A complaint of arbitrary arrest, contrary to s. 7 of The Saskatchewan Human Rights Code, was made to the Saskatchewan Human Rights Commission. The Commission investigated the matter, informed appellants of their finding and proposed a settlement. When the officers did not respond, a Board of Inquiry was established to formally investigate the matter. The Commission took the position that although the force was subject to federal regulation its individual officers were subject to the provisions of The Saskatchewan Human Rights Code. An order of prohibition granted the appellants in the Saskatchewan Court of Queen's Bench was quashed on appeal. At issue here was whether the Board of Inquiry could validly conduct an inquiry into a complaint lodged against R.C.M.P. officers under a provincial code of human rights.
Held (Dickson C.J. and Wilson and La Forest JJ. dissenting): The appeal should be allowed.
Per Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain JJ.: Section 7 of The Saskatchewan Human Rights Code is inoperative in relation to arrest or detention under the criminal law. The Constitution Act, 1867 assigned Parliament exclusive jurisdiction over criminal law and criminal procedure in the widest sense. The requirements in s. 7, that a detention be judicially determined immediately and that notice be given of the charge, appear to be derived from the law of habeas corpus and were therefore, when sought to be applied in the context of criminal proceedings, encompassed by the criminal law power. The section's attempt to create the offence of arbitrary arrest went beyond regulating the civil consequences of unlawful arrest when it purported to define the boundaries of an authorized arrest. The problem of avoiding the criminal characterization of this legislation was rendered insoluble once it became necessary to sever s. 35. That section was fed and sustained by s. 7 which could not be severed because it was the main pillar in the statutory structure. Neither could any phrase or clause of s. 7 be severed because if taken in isolation it is as much criminal law as the section when read as an entity. No question of federal paramountcy arose because there was no parallel provincial power capable of supporting the section. Given the controlling force of the criminal law power, it was not necessary to deal with the effect of s. 96 of the Constitution Act, 1867 or to consider the question of provincial interference with the administration of purely federal institutions.
Per Dickson C.J. and Wilson and La Forest JJ. (dissenting): A board of inquiry, established by the Saskatchewan Human Rights Commission on a complaint of arbitrary arrest and detention contrary to The Saskatchewan Human Rights Code, may validly conduct an inquiry into that complaint pursuant to the Code.
The Board's inquiry into arbitrary arrest and detention did not invade the jurisdiction of a judge appointed under s. 96 of the Constitution Act, 1867 notwithstanding the fact that the superior courts traditionally deal with the very similar tort of false arrest. This tort is to compensate a person wrongly deprived of his liberty. Section 7 of the Code, while it overlaps that tort, deals with the more modern concept of the protection of human rights which flow from the inherent dignity and equality of mankind. The judicial component is subsidiary to its institutional arrangements. Many of the common anti‑discrimination functions of the Commission, such as those relating to race, colour, sex in employment and accommodation were not protected at common law and consequently, a human rights commission seeking to protect these rights could not be looked upon as exercising a function of a s. 96 judge as of the time of Confederation.
The Saskatchewan Human Rights Code provides a means of dealing with arbitrary action by police officers in the course of an unlawful arrest. The provisions of the Criminal Code setting forth limitations and conditions to the powers of arrest were not intended to so cover the field as to displace the province's legitimate interest in its civil aspects. The provinces can, consistently with any federal law defining the legality of an arrest, deal with the civil aspects of an unlawful arrest conducted by police officers, whether the arrest purports to be in relation to an alleged breach of the Criminal Code or of provincial law. The criminal law is in no way interfered with by these provisions of the human rights code. The province can not only provide for the amical settlement of disputes and the education of the public but can impose civil sanctions on those who do not comply with federal norms and can provide for compensation to those who may have suffered from the norms' not being respected. This type of complementary legislation need not be frozen in the form of the common law torts of false imprisonments and malicious prosecution. A police officer acting in the course of his employment is therefore subject to prosecution where it can be established that he intentionally offended against provincial law for the protection of human rights, just as he is subject to prosecution for breaches of the provincial highways acts, unless that breach be necessary for the enforcement of his duties.
Even assuming that the enforcement of s. 7 by means of a penal provision like s. 35(2) is unconstitutional as infringing on criminal law, it does not follow that enforcement of s. 7 by the proceedings taken by the Commission pursuant to the complaint procedure set out in the Code is also unconstitutional. The legislature provided for two quite distinct procedures for giving life to the right declared in s. 7‑‑one constitutional and one probably not. The two were not dependent on one another.
The Commission's proceedings were not an investigation into the management and administration of the R.C.M.P. but rather into the conduct of individual R.C.M.P. officers that formed the subject‑matter of the complaint. The Commission, to fit into the scheme for the protection of human rights, did not need to determine what changes would be required in the practices of the R.C.M.P. to deal with the complaint. That area of investigation has been established to be one of exclusive federal competence. Rather, the Board's investigation was into the conduct of individual R.C.M.P. officers on a particular occasion and the fact that it could not constitutionally investigate the general patterns or practices of the R.C.M.P. did not prevent it from exercising its other powers in an investigation of specific unlawful conduct by members of the R.C.M.P. on a particular occasion.
Aside from immunity that may arise regarding conduct in the course of duty, individual members of the R.C.M.P. are subject to provincial laws of general application in the same way as other citizens. The conclusion that members of the R.C.M.P. must conform with the law is in harmony with the approach taken in the Royal Canadian Mounted Police Act and its regulations. Specific conduct of individual officers in breach of the law cannot be viewed as coming within the management and administration of the R.C.M.P. and provincial investigations into allegations of such conduct are permissible. The fact that an officer's conduct might give rise to internal disciplinary action has nothing to do with the administration of a provincial law of general application like The Saskatchewan Human Rights Code.
Cases Cited
By Estey J.
Referred to: Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Switzman v. Elbling, [1957] S.C.R. 285; Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150; Attorney‑General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524; Proprietary Articles Trade Association v. Attorney‑General for Canada, [1931] A.C. 310; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; Boggs v. The Queen, [1981] 1 S.C.R. 49; Westendorp v. The Queen, [1983] 1 S.C.R. 43; Storgoff (In re), [1945] S.C.R. 526; Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474.
By La Forest J. (dissenting)
Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; Attorney General of Alberta v. Putnam, [1981] 2 S.C.R. 267; Residential Tenancies Act, 1979, Re, [1981] 1 S.C.R. 714; B.C. Family Relations Act, Re, [1982] 1 S.C.R. 62; Massey‑Ferguson Industries Ltd. v. Government of Saskatchewan, [1981] 2 S.C.R. 413; Christie v. York Corporation, [1940] S.C.R. 139; Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181; Lodger's International Ltd. and O'Brien, Re (1982), 141 D.L.R. (3d) 743, reversed on other grounds (1983), 145 D.L.R. (3d) 293; Nykorak v. Attorney General of Canada, [1962] S.C.R. 331; Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; R. v. Wetmore, [1983] 2 S.C.R. 284; Attorney General of Canada v. City of Montreal, [1978] 2 S.C.R. 770; Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474; Conseil des Ports Nationaux v. Langelier, [1969] S.C.R. 60; R. v. McLeod, [1930] 4 D.L.R. 226; R. v. Stradiotto, [1973] 2 O.R. 375.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms .
Civil Code, s. 1053.
Constitution Act, 1867, ss. 91(27) , 92(13) , (14) , (15) , 96 .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 25, 26, 29, 247(2), 449, 450, 451, 452, 453, 454.
Royal Canadian Mounted Police Act, R.S.C. 1970, c. R‑9, s. 37(3).
Royal Canadian Mounted Police Regulations, C.R.C. 1978, c. 1391, s. 25.
Rules of the Supreme Court of Canada, SOR/83‑74 as amended by SOR/83‑335, s. 32.
Saskatchewan Bill of Rights Act, 1947, S.S. 1947, c. 35.
Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, ss. 3, 7, 25, 27, 28(1), 29(1), (2), 30(1)(a), 31(3), (7), (8), 35(3).
Authors Cited
Dicey Albert Venn. Introduction to the Study of the Law of the Constitution, 10th ed. London: Macmillan, 1959.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Laskin, Bora. "An Inquiry into the Diefenbaker Bill of Rights" (1959), 37 Can. Bar Rev. 77.
Pigeon, Louis‑Philippe. "The Bill of Rights and the British North America Act" (1959), 37 Can. Bar Rev. 66.
Tarnopolsky, Walter Surma. "The Iron Hand in the Velvet Glove: Administration and Enforcement of Human Rights Legislation in Canada" (1968), 46 Can. Bar Rev. 565.
Tarnopolsky, Walter Surma. The Canadian Bill of Rights, 2nd ed. Toronto: McClelland and Stewart, 1975.
APPEAL from a judgment of the Saskatchewan Court of Appeal (1982), 148 D.L.R. (3d) 55, [1983] 4 W.W.R. 97, 23 Sask. R. 16, 4 C.H.R.R. D/1355, quashing an order of prohibition granted by Maher J. (1982), 139 D.L.R. (3d) 44, [1982] 5 W.W.R. 749, 19 Sask. R. 26, 3 C.H.R.R. D/972, with respect to a Board of Inquiry established by the Saskatchewan Human Rights Commission pursuant to The Saskatchewan Human Rights Code. Appeal allowed, Dickson C.J. and Wilson and la Forest JJ. dissenting.
T. B. Smith, Q.C., S. R. Fainstein and M. R. Kindrachuk, for the appellants.
Milton C. Woodard, for the respondent.
John Cavarzan, Q.C., for the intervener the Attorney General for Ontario.
Réal A. Forest, for the intervener the Attorney General of Quebec.
Bruce Judah, for the intervener the Attorney General for New Brunswick.
William Henkel, Q.C., and Robert Maybank, for the intervener the Attorney General for Alberta.
James C. MacPherson and Graeme G. Mitchell, for the intervener the Attorney General for Saskatchewan.
The judgment of Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain JJ. was delivered by
1. Estey J.‑‑There are two clear areas of law concerned in this appeal. The Criminal Code , in s. 247(2) , makes it an offence to unlawfully confine or detain a person, and ancient principles of criminal law give a right to habeas corpus where detention is unlawful. On the other hand, the common law of Saskatchewan includes a right to recover damages in tort for false imprisonment. This tort action can be further controlled by provincial legislation if the province wishes to do so. Section (7) of The Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, is argued to be such action, at least in part. The section provides:
7. Every person and every class of persons shall enjoy the right to freedom from arbitrary arrest or detention, and every person who is arrested or detained shall enjoy the right to an immediate judicial determination of the legality of his detention and to notice of the charges on which he is detained.
2. The character of s. 7 in law must be determined and the answer to that process is the answer to this appeal. The only serious challenge to its validity is that it is in relation to criminal law. If the section is in pith and substance "true criminal law" under s. 91(27) of the Constitution Act, 1867 , then it is ultra vires the province and one need not pursue inquiry into the difficulties created by its coexistence with s. 25 of the Criminal Code . The true character in law of s. 7 will be determined from its interpretation, taking into account the language employed by the legislature, the nature of the statute in which it is found and its position in that statute.
3. The province may, under s. 92(15) , create an offence to enforce or support a constitutionally valid provincial law or program. "Human rights" without more is itself not such a free‑standing program in the sense that not all such rights, and not all means by which such rights may be protected, fall in pith and substance within one of the heads of power in s. 92. Rather, provincial legislation protecting aspects of human rights may find constitutional validity only to the extent that it is, outside of its association with human dignity or liberty, independently valid under s. 92.
4. Let it be said at once that one does not approach a provincial human rights code on the basis that it is constitutionally presumptively suspect. The great bulk of the protections granted by such codes would appear to be beyond challenge as being legislation in relation to property and civil rights, or to matters of merely local or private nature. They deal, for example, with questions of discrimination in housing and employment, and equal access to goods and services. These legislative protections are valid not because they affirm interests such as liberty, or human dignity, but because the activities legislated, that is for example housing, employment, and education, are themselves legitimate areas of provincial concern under ss. 92 and 93. Here, however, we are asked to rule on the validity of a provision which does not fit into this category. Section 7 of the Saskatchewan Code deals with arbitrary arrest. To the extent that that subject is in pith and substance a matter falling exclusively within federal legislative competence, s. 7 must be found to be ultra vires the province.
5. In my view, therefore, it is not sufficient in disposing of this appeal to point to the fact that the Saskatchewan Code provisions are, as expressed in s. 3 of the Act, aimed in unison at the common targets of promoting "recognition of the inherent dignity and the equal inalienable rights of all members of the human family", and furthering the public policies against discrimination. The preoccupation of the Code as a whole with fostering civil liberties does not compel the conclusion that all the provisions of the Code are within provincial competence under s. 92 (13) , "property and civil rights". In the division of legislative powers, "civil rights" is neither synonymous with nor necessarily inclusive of matters commonly thought of as "civil rights issues".
6. In Saumur v. City of Quebec, [1953] 2 S.C.R. 299, we find several references to this basic distinction:
(a) Estey J. wrote of religious freedom that (p. 359):
In one sense it may be styled a civil right, but it does not follow that it would be included within the phrase "Property and Civil Rights in the Province" within the meaning of s. 92(13) of the B.N.A. Act. On the contrary it would rather seem that such a right should be included among those upon which the Parliament of Canada might legislate for the preservation of peace, order and good government.
(b) Rand J. similarly distinguished (p. 329) "civil rights [which] arise from positive law" from "freedom of speech, religion and the inviolability of the person...[which] are at once the necessary attributes and modes of self‑expression of human beings and the primary conditions of their community life within a legal order."
The same distinction was made again by Rand J. in Switzman v. Elbling, [1957] S.C.R. 285, at p. 305.
7. This conclusion was adopted by Professor Laskin (as he then was) in ["An Inquiry into the Diefenbaker Bill of Rights"] (1959), 37 Can. Bar Rev. 77, at p. 104:
An assessment of the civil liberty classifications in terms of legislative power leads to the conviction that, by and large, economic liberty and liberty in the human rights or egalitarian sense are, respectively, subject either to federal or to provincial legislative power or to both concurrently, according to whether the industries, undertakings or activities involved or with which these liberties are connected, are themselves within the legislative power of Parliament or a provincial legislature.
The same sort of division of powers over "liberty in the legal sense" was confirmed at p. 107, and is inherent in the restriction of the Canadian Bill of Rights, R.S.C. 1970, App. III, s. 5(3), to matters within the legislative authority of Parliament (on Parliament's competence to enact the Bill, compare Laskin, supra, with Pigeon ["The Bill of Rights and the British North America Act"] (1959), 37 Can. Bar Rev. 66).
8. Just as a province has no jurisdiction to infringe a human right or liberty where the legislative provision is properly seen as falling under an exclusively federal head of power (i.e., Saumur v. City of Quebec, supra, Switzman v. Elbling, supra), a province's jurisdiction to affirmatively protect a human right or liberty must depend upon the human rights provision's independent validity under one of the heads of s. 92 (see Hogg, Constitutional Law of Canada (2nd ed. 1985), pp. 634‑35, Tarnopolsky, The Canadian Bill of Rights (2nd ed. 1975), pp. 55‑56). Saumur and Switzman, supra, are the opposite of this case in that there, provincial legislation had the effect of infringing civil liberties and here, the province has legislated to protect them. In principle, however, the cases are exactly the same. In each case, the essential question is whether provincial legislation is valid as in relation to property and civil rights or some other head of s. 92, or impermissibly deals with matters in relation to a subject over which Parliament has been given exclusive legislative jurisdiction. Should the root of the human rights legislation under challenge be within the territory of pure criminal law, and not in a valid provincial legislative object, it is beyond the powers of the provincial legislature. That is the basic question to be answered in this appeal.
9. It is parenthetically mentioned that this restriction on the ability of the provinces, and indeed the federal Parliament, to legislate for the protection of human rights or liberties in no way diminishes the pre‑eminent importance of such laws, when validly enacted. Valid human rights legislation enjoys a special status, in the sense recently enunciated by Lamer J. in Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, and confirmed by the whole Court in Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150. Human rights codes are fundamental laws intended to apply to all other legislation of the enacting body in the absence of express words in that legislation denying it that power.
10. Criminal law is easier to recognize than to define. It is easier to say what is not criminal law than what is. Fortunately, given the wording of s. 91(27) it is not necessary to distinguish in this issue that which is substantive criminal law from that which is criminal procedure. This Court and the Privy Council have in three leading cases dealt with the definition of criminal legislation. In Attorney‑General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524, the Lord Chancellor wrote at pp. 528‑29:
The reservation of the criminal law for the Dominion of Canada is given in clear and intelligible words which must be construed according to their natural and ordinary signification. Those words seem to their Lordships to require, and indeed to admit, of no plainer exposition that the language itself affords. Sect. 91, sub‑s. 27, of the British North America Act, 1867, reserves for the exclusive legislative authority of the Parliament of Canada "the criminal law, except the constitution of Courts of criminal jurisdiction." It is, therefore, the criminal law in its widest sense that is reserved . . . .
This was taken literally in Proprietary Articles Trade Association v. Attorney‑General for Canada, [1931] A.C. 310, where it was stated, at p. 324, that:
Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?
Such a definition is necessarily too broad, as it would permit Parliament, simply by legislating in the proper form, to colourably invade areas of exclusively provincial legislative competence. Therefore, in the Margarine Reference [Reference re Validity of Section 5(a) of the Dairy Industry Act], [1949] S.C.R. 1, it was accepted that some legitimate public purpose must underlie the prohibition.
A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undersirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.
(Per Rand J. at p. 49.)
The lack of a sufficient public purpose of the relevant sort was determinative in Boggs v. The Queen, [1981] 1 S.C.R. 49.
11. The question of encroachment upon the criminal law jurisdiction of Parliament is discussed both by my colleague La Forest J. and in the judgment of the Saskatchewan Court of Appeal, below. With respect to those who reach the opposite conclusion, I conclude that provincial legislative powers cannot sustain the measure before the Court as applied to arrest or detention under the criminal law. The terms of s. 91(27) of the Constitution must be read as assigning to Parliament exclusive jurisdiction over criminal law in the widest sense of the term. Provincial legislation which in pith and substance falls inside the perimeter of that term broadly defined is ultra vires. Parliament's legislative jurisdiction properly founded on s. 91(27) may have a destructive force on encroaching legislation from provincial legislatures, but such is the nature of the allocation procedure in ss. 91 and 92 of the Constitution. Here we are not concerned with the result in law of the exercise by Parliament of one of its exclusive heads of jurisdiction. Indeed, the converse is the question: what, if anything, is the result in law of legislation by a province where it may be classified as essentially criminal in nature? Basic principles require the conclusion that such legislation is invalid, regardless of any perceived need for its substantive provisions, and regardless of perceived defects or gaps in the federal legislative plan (Westendorp v. The Queen, [1983] 1 S.C.R. 43, and see the discussion in Hogg, supra at pp. 313‑15).
12. Section 7 of The Saskatchewan Human Rights Code creates a right to be free from "arbitrary arrest or detention" and prescribes a right of every arrested or detained person to an immediate judicial determination of the legality of that detention, and to a notice of the charge on which he is detained. The latter two requirements relate to, and indeed appear to be derived from, the ancient law of habeas corpus. As such, where the issue arises, as it does in this appeal, in the context of the criminal law, they are clearly, in the Canadian constitutional scheme, matters of "criminal law, ... including the procedure in criminal matters" (Storgoff (In re), [1945] S.C.R. 526). The structure of s. 7 and its relationship to other provisions in the statute do not afford the solution of severability of the concluding clauses of the section, which are beyond argument measures relating entirely to procedure in criminal matters if they purport to be effective to give a right to judicial review of the legality of detention by police officers acting in the course of their duties in furtherance of the criminal law.
13. Section 7, read as a whole and in conjunction with s. 35 of the Saskatchewan statute, also clearly purports to create an offence of arbitrary arrest or detention. Section 35 specifies that "Every person who ... abridges ... a right under this Act ... is guilty of an offence and liable ... (3) ... to a fine of not more than $2,000... ." The words of s. 7 cannot therefore be read as merely creating a right in a vacuum. Violation of the right is an offence attracting a penalty. The province has not here, by enacting s. 7, merely regulated the civil aspects of unlawful arrest by specifying the consequences attendant upon such arrest. The latter is generally within provincial powers (Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474). Rather, here the province has purported to define the boundaries within which an arrest or detention is authorized. That is a matter which, where the arrest occurs in the course of enforcement of the criminal law, is itself in relation to criminal law or procedure. The problem of avoiding the criminal characterization of this legislation is indeed rendered insoluble once it becomes necessary to sever s. 35. That section is fed and sustained by s. 7 which of course cannot be severed because it is the main pillar in the statutory structure. Neither can any phrase or clause of s. 7 be severed because if taken in isolation it is as much criminal law as is the section when read as an entity.
14. Section 31(8) also throws some light on the true characterization in constitutional law of s. 7. By subsection (a) the Board is empowered to award "damages" for a "contravention" if the act is committed "wilfully and recklessly". This would, in ordinary legislative parlance, connote an offence with related punishment consequences regardless of the person or entity to whom the prescribed penalty is payable. Subsection (b) is equivocal on this issue but certainly cannot undo the work of subs. (a) in the characterization process.
15. The term "arbitrary arrest or detention" is not defined in the statute. The Criminal Code of Canada deals with detention and arrest in many ways in its provisions. Section 247(2) creates the offence of forcible confinement where confinement occurs without lawful authority. Section 25(1) of the Code affords certain defences to a person making an arrest within the authorization of the law, including the Criminal Code , where he acted on reasonable and probable grounds and used only such force as was necessary for the purpose. Section 26 of the Code makes excessive force an offence and s. 29 requires the arresting officer to give notice of the offence to the person arrested "where it is feasible to do so". The powers of arrest without warrant under the Criminal Code are defined in ss. 449 and 450 .
16. These provisions are cited not to show that the federal Parliament has occupied the field or that difficulties will be encountered in the application of two bodies of law to the same population. (These requirements arise only where the provincial legislation relates to a valid provincial object.) Rather these Code provisions are advanced to illustrate that the type of action taken by the provincial legislature in s. 7 has been, almost since the advent of Confederation, taken by the Parliament of Canada in the exercise of its exclusive sovereignty over criminal law. That is not to say that repetition produces constitutionality. It does, however, illustrate that the community through its elected representatives, and in the course of its criminal law enforcement system, has for at least a century regarded the arrest and detention provisions in the Criminal Code as illustrations of the broadly defined approach to criminal law in the authorities, some of which have already been cited. Words in legislation, and more particularly, words employed in constitutional documents, take on meaning from the context in which they are employed in daily life. The words "criminal law" and "criminal procedure" are no exception. These words have long been accepted by legislature and courts alike in the community as including legislation with reference to arrest and detention, arbitrary or otherwise. To the extent that these activities form the core and substance of habeas corpus, they have had criminal law connotations in our criminal jurisprudence in Canada and in its British predecessor from which our criminal law has evolved for over seven hundred years. We are not here, of course, concerned with any valid provincial arrest or detention powers such as may, for example, be conferred on individuals with jurisdiction to enforce valid provincial regulatory schemes or penal provisions valid under s. 92(15) , such as highway control statutes, and provincial statutes permitting apprehension of juveniles or the mentally ill.
17. The section of the provincial statute under examination in the criminal law context in this case cannot, in my view, be seen otherwise than as an exercise by the legislature in the enunciation of criminal law as the expression has been interpreted in our courts over the years. There is no parallel valid provincial aspect or scheme which could support it in this context. Accordingly, no question of federal paramountcy need be addressed. Because of the controlling force of the criminal law power over the resolution of this appeal, I find it unnecessary to deal with the effect of s. 96 of the Constitution Act, 1867 in matters of this kind. This was discussed by my colleague La Forest J. and by Tallis J.A. in the Court of Appeal. It is also unnecessary to consider the question of provincial interference with the administration of purely federal institutions, which was the principal theme of Maher J. in the first instance.
18. While s. 7 of The Saskatchewan Human Rights Code may validly apply to arrest or detention under provincial offences, it is in my opinion, for the reasons indicated above, constitutionally inapplicable to arrest or detention under the provisions of the criminal law and could not, therefore, validly apply to the conduct of the appellants. That being so, it is unnecessary to determine what, if any, rights the persons affected by the actions of the police officers may be entitled to under valid and applicable law. Those are issues for other tribunals in other actions.
19. I would therefore allow the appeal with costs.
The reasons of Dickson C.J. and Wilson and La Forest JJ. were delivered by
20. La Forest J. (dissenting)‑‑The question to be resolved in this case is whether a board of inquiry established in consequence of a complaint made to the Saskatchewan Human Rights Commission alleging that the complainants have been subjected to arbitrary arrest and detention in violation of s. 7 of The Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, may validly conduct an inquiry into the complaint pursuant to the provisions of the Code. The violation, it was alleged, was committed by R.C.M.P. officers who, under the aegis of a general policing agreement with the province, were in the course of conducting an investigation of an offence under the Criminal Code of Canada, R.S.C. 1970, c. C‑34.
Background
21. The appellants, R.C.M.P. officers, while in the course of investigating an alleged assault by Frederick Runns, Sr. against a conservation officer of the Department of Tourism and Renewable Resources of the Province of Saskatchewan, on September 28, 1980 went to a cabin at a hunting lodge where Frederick Runns, Sr. was. Also there were Joseph Dumont and Keith Deiter of Regina and Fred Runns, Jr. and Wesley Ironstar of Assiniboine Reserve, whom I shall hereafter call the complainants, who were asleep after a day's hunting. The R.C.M.P. officers are alleged to have awakened the complainants by means of a loud‑speaker, and stated that Fred Runns was under arrest and ordered him to come out with his hands behind his head. Runns, Sr. complied and was apprehended. The complainants were then told to come out from the cabin with their hands over their heads and not to bother to dress. Once outside, they asserted, they saw headlights directed at the cabin and were told to lie on the ground. They added that while Runns, Sr. was being questioned, they were ridiculed and forced to stay lying there inadequately clothed in sub‑zero weather. A dog, which appeared to be loose, was barking and came very close to their heads on several occasions. As well, someone is alleged to have stepped on the heads of Deiter and Dumont. After about half an hour, the complainants were told to get up one at a time, asked their names and addresses, and told to go back into the cabin.
22. On the basis of these allegations, the complainants made a complaint to the Saskatchewan Human Rights Commission on March 13, 1981 setting forth their belief that the R.C.M.P. officers had violated their rights under s. 7 of The Saskatchewan Human Rights Code by arbitrarily detaining them and by not informing them of the charges on which they were being detained. Section 7 reads as follows:
7. Every person and every class of persons shall enjoy the right to freedom from arbitrary arrest or detention, and every person who is arrested or detained shall enjoy the right to an immediate judicial determination of the legality of his detention and to notice of the charges on which he is detained.
The complainants added that they believed their experience was indicative of a general pattern and practice of the R.C.M.P.
23. After investigating the matter, the Commission wrote to the R.C.M.P. officers on August 11, 1981. In its letter, the Commission stated that its investigation showed that while the R.C.M.P. officers had reasonable cause to believe Frederick Runns, Sr. had committed an offence under the Criminal Code , there was no suggestion that any of the complainants were in any way involved with the offence. It then set forth its other findings, which are in basic accord with the allegations made by the complainants, except those relating to derogatory comments and possible physical assaults which it excluded from consideration, and concluded that in its opinion, the R.C.M.P. offi­cers' conduct constituted a violation of s. 7 of The Saskatchewan Human Rights Code in that such conduct appeared to be both arbitrary arrest and detention. Its findings, it noted, were based on the testimony of conservation officers who were present during the incident, the complainants, and Frederick Runns, Sr., as well as the transcript of the trial of the latter. Since the R.C.M.P. officers had chosen not to refute the allegations, it added, the allegations were not controverted.
24. While the Commission took the position that the R.C.M.P. as a force may be subject to federal regulation and, therefore, outside the scope of The Saskatchewan Human Rights Code, it nonetheless concluded that individual R.C.M.P. officers, like other police officers in the province, were subject to its provisions. Consequently, it proposed the following settlement to the R.C.M.P. officers pursuant to s. 28(1) of the Code:
1. That you each acknowledge an understanding of The Saskatchewan Human Rights Code and in particular Section 7 thereof and undertake not to violate the provisions of same in the future;
2. That you jointly and severably [sic] agree to pay to each of the respondents the sum of $5,000.00. To ensure there is no misunderstanding we are requesting that each complainant receive a total of $5,000.00.
It added:
The above indicated monetary sum is sought in settlement of damages suffered in respect of feeling or self‑respect, as well as because of the wilful and reckless nature of the violation. While $5,000.00 is the maximum allowable for such losses pursuant to Section 31(8) of the Code, we feel that the blatant nature of the violations as well as the severe effect on the complainants, requires such sum.
25. The R.C.M.P. officers did not respond to this letter. A Board of Inquiry was then established to make a formal inquiry about the complaint, pursuant to s. 29 of The Saskatchewan Human Rights Code, the relevant portions of which read as follows:
29.‑‑(1) Where the commission, or a person conducting an inquiry on behalf of the commission, is unable to effect a settlement of the matter compla