Bisaillon v. Keable

Bisaillon v. Keable
Collection
Supreme Court Judgments
Date
1983-10-13
Report
[1983] 2 SCR 60
Case number
16341
Judges
Laskin, Bora; Ritchie, Roland Almon; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Chouinard, Julien; Lamer, Antonio
On appeal from
Quebec
Subjects
Administrative law
Constitutional law
Evidence
Decision Content
SUPREME COURT OF CANADA
Bisaillon v. Keable, [1983] 2 S.C.R. 60
Date: 1983-10-13
Émile Bisaillon Appellant;
and
Jean-F. Keable Respondent;
and
The Attorney General of Quebec Mis en cause;
and
The Attorney General of Canada, the Attorney General for Ontario, the Attorney General for New Brunswick and the Attorney General for Alberta Interveners.
File No.: 16341.
1982: March 3, 4; 1983: October 13.
Present: Laskin C.J. and Ritchie, Dickson, Beetz, Estey, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Constitutional law — Provincial inquiry commission — Investigation of certain criminal activities involving various police forces — Validity of mandate — Public Inquiry Commission Act, R.S.Q. 1964, c. 11 (now R.S.Q. 1977, c. C-37).
Evidence — Privilege respecting police informers — Provincial inquiry commission — Refusal by police officer to disclose informer's identity — Nature and scope of secrecy rule regarding police informers' identity — Code of Civil Procedure, art. 308 — Canada Evidence Act, R.S.C. 1970, c. E-10, s. 37 — Criminal Code, R.S.C. 1970, c. C-34, s. 7(2) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 41.
Administrative law — Provincial inquiry commission — Excess of jurisdiction — Evocation.
Respondent was given a mandate, under the Public Inquiry Commission Act of Quebec, to investigate and report on various allegedly illegal or reprehensible incidents or acts in which various police forces were involved. During his investigation he tried to compel appellant, a peace officer of the Montreal Urban Community Police Force, to disclose the identity of an individual whom respondent thought was a police informer. Appellant refused to answer and applied to the Superior Court for a writ of evocation against respondent. His application was dismissed and this judgment was affirmed by the Court of Appeal. By this appeal,
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appellant challenged the validity of the Commission's mandate on the grounds that (1) it applied to matters within federal jurisdiction and (2) it contained an unlawful subdelegation of powers. If the mandate was found to be valid, appellant argued inter alia that the Commissioner had exceeded his jurisdiction in seeking to compel him to disclose the identity of a police informer.
Held: The appeal should be allowed.
Question 1: Are the Orders in Council defining the Commissioner's mandate, namely Orders in Council 1968-77, 2736-77, 2986-77, 3719-77, 1336-78, 2534-78, 3024-78, 3943-78, 217-79, 814-79, 2038-79 and 293-79, in whole or in part, ultra vires the province of Quebec or the Lieutenant Governor in Council of the province?
Answer: No.
Question 2: With respect to testimony in the course of such an inquiry by a peace officer, concerning inquiries made in the performance of his duties in relation to offences against the criminal law, can the legislature of the province of Quebec constitutionally affect, and has it by its legislation affected:
(i) the principle of the confidentiality of police sources of information, with respect to information so obtained by such a peace officer; or
(ii) the status, the duties and powers of such a peace officer;
such that
(a) the principle of the confidentiality of police sources of information does not apply?
Answer: No.
(b) that principle will only apply if it is invoked by the persons and in accordance with the conditions set forth in section 308 of the Code of Civil Procedure of the province?
Answer: No.
(c) the commissioner is empowered to render a decision concerning, and set aside, the said principle when it is invoked before him?
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Answer: No.
(d) the commissioner may compel a peace officer to testify regarding sources of information or produce documents relating thereto?
Answer: No.
(1) Validity of mandate: There was nothing unconstitutional in the mandate of the Commission in light of the exclusion of the R.C.M.P., as a force, following Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218. A province could investigate the allegedly illegal or reprehensible behaviour of a police force within its constitutional jurisdiction, as well as the allegedly illegal actions of any peace officer. The manner in which peace officers exercised their powers and duties were matters which affected the discipline of police forces and their members and which fell within the administration of justice. There was also no question of an unlawful subdelegation of powers here. Read as a whole, the mandate made it clear that the Commissioner had no discretion to determine the scope and nature of the principal events which were to be the subject of his inquiry.
(2) Excess of jurisdiction: Respondent Commissioner could not compel a peace officer to disclose his sources of information. By questioning appellant as to the identity of a person whom he believed to be a police informer and by asking for documents supporting such an identification to be produced, respondent exceeded his jurisdiction by infringing the common law rule against judicial disclosure of the identity of police informers. The rule was one of public order, and was subject to only one exception, imposed by the need to demonstrate the innocence of an accused person at a trial. This common law rule was part of Quebec law and must be applied in an inquiry affecting the administration of justice. Article 308 C.C.P. did not have the effect of altering or abrogating it. This article applied only to the part of the common law which was included in the law on Crown privilege. It did not extend to the secrecy rule regarding police informers' identity, which was subject to a specific legal status and which had special rules, distinct from those applicable to Crown privilege. In constitutional terms, the rule must be considered an indivisible whole. Its salient characteristics made it a rule of criminal law which fell under federal jurisdiction. A provincial legislature could constitutionally abrogate or limit
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this rule, therefore, which in any case occupied the field and would make the provincial legislation invalid.
Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; Solicitor General of Canada v. Royal Commission of Inquiry (Ontario Health Records), [1981] 2 S.C.R. 494, applied; Ratnagopal v. Attorney-General, [1970] A.C. 974; Vadeboncoeur v. Landry, [1977] 2 S.C.R. 179; Saulnier v. Quebec Police Commission, [1976] 1 S.C.R. 572; Attorney General of Alberta v. Putnam, [1981] 2 S.C.R. 267; R. v. Samson (1977), 35 C.C.C. (2d) 258; Marshall v. The Queen, [1961] S.C.R. 123; Marks v. Beyfus (1890), 25 Q.B.D. 494; Humphrey v. Archibald (1893), 20 O.A.R. 267; Reference re Legislative Privilege (1978), 39 C.C.C. (2d) 226; Rogers v. Home Secretary, [1973] A.C. 388; Duncan v. Cammell, Laird and Co., [1942] A.C. 624; Conway v. Rimmer, [1968] A.C. 910; R. v. Snider, [1954] S.C.R. 479; Langelier v. Giroux (1931), 52 Que. K.B. 113; Lamb v. Benoit, [1959] S.C.R. 321; Cotroni v. Quebec Police Commission, [1978] 1 S.C.R. 1048; Canadian Broadcasting Corporation v. Quebec Police Commission, [1979] 2 S.C.R. 618; Minister of National Revenue v. Die-Plast Co., [1952] Que. K.B. 342; Gugy v. Maguire (1863), 13 L.C.R. 33; Alain v. Belleau (1897), 1 Q.P.R. 98; Hébert v. Latour (1913), 15 Q.P.R. 5; Rhéault v. Landry (1918), 55 C.S. 1; Boyer v. Boyer, [1946] R.P. 174; Gagnon v. Commission des Valeurs Mobilières du Québec, [1965] S.C.R. 73; Commission des droits de la personne v. Attorney General of Canada, [1982] 1 S.C.R. 215; Re Inquiry into the Confidentiality of Health Records in Ontario (1979), 98 D.L.R. (3d) 704; R. v. Lalonde (1971), 15 C.R.N.S. 1; Hodge v. The Queen (1883), 9 App. Cas. 117; O'Grady v. Sparling, [1960] S.C.R. 804; Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396; Vignola v. Keable, [1983] 2 S.C.R. 112, referred to.
APPEAL from a judgment of the Quebec Court of Appeal, [1980] C.A. 316, 127 D.L.R. (3d) 368, 62 C.C.C. (2d) 340, 17 C.R. (3d) 193, which affirmed a judgment of the Superior Court, [1980] C.S. 13, refusing to issue a writ of evocation. Appeal allowed.
Paul Normandin, Q.C., and Guy Lafrance, for the appellant.
Jacques Bellemarre, Q.C., and Jean-Pierre Lussier, for the respondent.
William J. Atkinson and Louis Crête, for the mis en cause.
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James M. Mabbutt, for the intervener the Attorney General of Canada.
Lorraine E. Weinrib, for the intervener the Attorney General for Ontario.
Patricia L. Cumming, for the intervener the Attorney General for New Brunswick.
William Henkel, Q.C., for the intervener the Attorney General for Alberta.
English version of the judgment of the Court delivered by
BEETZ J.—By his appeal appellant, a peace officer of the Montreal Urban Community Police Department ("MUCPD"), is asking the Court to set aside a majority decision by which the Court of Appeal of the province of Quebec affirmed a judgment of the Superior Court refusing to issue a writ of evocation against respondent, a commissioner appointed pursuant to the Public Inquiry Commission Act, R.S.Q. 1964, c. 11 (now R.S.Q. 1977, c. C-37). According to the motion in evocation, the mandate of respondent Commissioner is ultra vires and void, and even if the mandate is valid, the respondent Commissioner in any case exceeded his jurisdiction.
I—Facts
At this stage of the proceedings, the allegations of fact of the motion in evocation must be taken as proven. The Court must also take notice of the exhibits filed by applicant. In the light of the allegations taken as proven and of the exhibits, the Court must decide whether the facts alleged justify the conclusions sought.
It appears from these allegations and exhibits that, since June 15, 1977, respondent has presided over a commission of inquiry the mandate for which has been the subject of several Orders in Council extending either its duration or scope.
At the time the circumstances giving rise to the issue occurred, this mandate was as follows:
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MANDATE OF THE COMMISSION
A.—To investigate and report on all the circumstances surrounding the search carried out during the night of October 6 to 7, 1972 at 3459 St. Hubert Street in Montreal, as well as any previous or subsequent events that might be related thereto, and the conduct of all persons involved in the search or in a previous or subsequent event that might be related thereto, and, without restricting the generality of the foregoing:
(i) the closing of the investigation files that had been opened in the Montreal Urban Community Police Department following the complaints that were filed, shortly after the search, by the three organizations whose premises had been searched;
(ii) the discrepancy in the different versions that were given of this search;
(iii) the disposal of the documents that were seized during the search;
(iv) the collaboration of the R.C.M.P., the Quebec Police Force and the Montreal Urban Community Police Department with the Department of Justice during the investigation that was launched after the existence of this search became publicly known;
(v) the methods used during this search and the frequency of their use;
B.—To investigate and report on any circumstances and any previous or subsequent events that might be related to the following acts, as well as the conduct of all persons involved in the following acts and events:
(i) the illegal entry made during January 1973 into premises in which computer tapes were kept, containing a list of the members of a political party;
(ii) setting fire to a farm known as "Petit Québec Libre" in Sainte-Anne de la Rochelle on May 9, 1972;
(iii) a theft of dynamite in Rougemont in the spring of 1972;
(iv) the recruitment of informers by illegal or reprehensible means;
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(v) the preparation, drafting, issuing and distribution of any false communiqués;
C.—To investigate and report on the methods used during the acts referred to in paragraph B and the frequency of their use;
D.—To make recommendations on the measures to be taken to ensure that any illegal or reprehensible acts the Commission uncovers will not be repeated in future;
Except as regards paragraphs E-(iv) and B-(v), which are new, this mandate is identical to that considered by this Court in Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218 (hereinafter referred to as Keable No. 1). This Court there held that the mandate at that time was valid and intra vires the province with the following exceptions, as regards the R.C.M.P.: in paragraph A, the words "and the frequency of their use"; in paragraph C, the words "and the frequency of their use"; and paragraph D.
At a hearing held on November 20, 1979 before respondent Commissioner, Henri-Paul Vignola, the MUCPD Director, filed through his counsel an affidavit stating inter alia that subpoenas had been served on certain MUCPD officers ordering them to appear before respondent Commissioner, and that he had reason to believe, and did believe, that [TRANSLATION] "questions might be put to them designed to compel them to disclose the existence or identity of informers" of the MUCPD, as well as the latter's methods of investigation and operation. Henri-Paul Vignola stated that in his opinion the disclosure of such information would be harmful to public order and the public interest, and would interfere with the effective operation of the Police Department administered by him. He concluded his affidavit by stating that he objected on grounds of public interest to the disclosure by MUCPD officers to respondent Commissioner, by whatever means, of information regarding the existence and identity of MUCPD informers and the methods of investigation and operation of the MUCPD.
At the hearing held before respondent Commissioner the following day, November 21, 1979, three witnesses were questioned as to the origin of
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the paper used in preparing the communiqués the authenticity of which was being verified. The first witness was also questioned as to the source and use of dynamite. This first witness read a lengthy written statement, signed by him and the second witness, and titled [TRANSLATION] "Why We Refuse to Answer the Keable Commission". The trial judge described this statement, which attacked the respondent Commissioner, as a diatribe. It speaks of kangaroo courts, bias, the Commissioner's purposes and the bourgeois state.
Further to this statement, the three witnesses refused to answer, the first two for the reasons in the statement and the third from solidarity with the two witnesses who preceded him, although he [TRANSLATION] "did not endorse" their statement.
Respondent Commissioner told the three witnesses that for the first time he was confronted by a situation of flagrant contempt of court. He gave them a final opportunity to consult their counsel and change their attitude, and said that such a change would be sympathetically regarded; but he warned them that if they persisted, the only proceedings in which they would be heard would be for contempt.
At the next public hearing held on November 27, 1979 before respondent Commissioner, the first two witnesses who had refused to answer on the 21st maintained their refusal.
Respondent Commissioner stated that he observed with dismay that the statement read on November 21 was very similar to the alleged F.L.Q. communiqués the authenticity of which he was investigating. This statement was written by two people. Respondent Commissioner said that [TRANSLATION] "one of these two persons has been an active source for the Montreal Urban Community Police Department for many years". He mentioned this person's file number with the MUCPD and his name. He said that the controller of this source was appellant Bisaillon. A little later, the respondent Commissioner asked the person whom he had identified as an informer whether he wished to make a denial, and whether
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anyone in the room, in particular appellant Bisaillon, wished to deny what he had just said.
Appellant Bisaillon was then sworn. The respondent Commissioner said that he had only one question to ask him: Was Bisaillon the controller of the information source just identified by the respondent Commissioner?
Counsel for the appellant objected to the question. The respondent Commissioner dismissed the objection.
Counsel for the appellant requested an adjournment in order to ask the Superior Court to issue a writ of evocation. Respondent Commissioner refused the adjournment and ordered appellant to answer. The latter asked for permission to consult his counsel. After a minute of discussion between appellant and his counsel, the latter asked for an adjournment of ten minutes, which was denied. Respondent Commissioner asked appellant whether he understood the question and whether he refused to answer. Appellant again asked for permission to speak to his counsel. The Commissioner told him:
[TRANSLATION] Mr. Bisaillon, go away, I have no time to waste.
The respondent Commissioner adjourned the public hearings to the following day.
Appellant was summoned to appear before respondent Commissioner on November 28, 1979 by a subpoena dated on the 27th, to give evidence on matters falling within the Commission's mandate and to produce the documents mentioned in a duces tecum attached to the subpoena. Paragraphs 1 and 5 of the duces tecum R-4 mention all the files or documents concerning the information source identified by the respondent Commissioner, by whatever number he may be referred to, as well as all accounts rendered, transcripts, tapes, cassettes, summaries of electronic eavesdropping or voluntary recordings since 1969 concerning the information source in question.
Before the session of November 28, 1979 began, appellant caused his motion in evocation, dated
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November 27, to be served. According to the submission of appellant, which is not contradicted by the factum of respondent Commissioner, the latter [TRANSLATION] "agreed to cease trying to compel [appellant] to testify, or to produce documents disclosing information on police information sources, until judgment is rendered on the said motion".
Shortly before the appeal was heard in this Court, the Attorney General of Quebec, mis en cause, informed the Court that respondent Commissioner had submitted his resignation as commissioner on February 5, 1982 and had delivered a report containing the results of the investigation covering all aspects of the mandate given to the Commission, except for [TRANSLATION] "questions regarding the recruitment of informers by police forces", questions which could not be resolved before the judgment of this Court in the case at bar and the judgment in Vignola v. Keable, [1983] 2 S.C.R. 112, which is handed down concurrently. The mis en cause further informed the Court that continuing with the Commission's work would depend on the outcome of the appeal: it was too soon to appoint a new commissioner, but the mis en cause would recommend that the Lieutenant-Governor in Council do so in order to complete the Commission's mandate, if this Court upheld the judgment of the Court of Appeal to the effect that the Commissioner had not exceeded his jurisdiction.
Counsel for the mis en cause and respondent accordingly argued that this matter had not become of merely academic interest, and counsel for the appellant agreed that there was a real legal interest in resolving it. The Court agreed to hear the appeal on this basis.
II—Judgments of the Superior Court and Court of Appeal
These judgments have been published in full sub nom. Bisaillon v. Keable, [1980] C.A. 316[1], and Bisaillon v. Keable, [1980] C.S. 13.
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It does not seem necessary to summarize these judgments. I will have to refer to them several times and cite significant passages.
III—Constitutional questions
On appeal in this Court, the constitutional questions were formulated by order of the Chief Justice as follows:
1. Are the Orders in Council defining the commissioner's mandate, namely Orders in Council 1968-77, 2736-77, 2986-77, 3719-77, 1336-78, 2534-78, 3024-78, 3943-78, 217-79, 814-79, 2038-79 and 293-79, in whole or in part, ultra vires the province of Quebec or the Lieutenant Governor in Council of the province?
2. With respect to testimony in the course of such an inquiry by a peace officer, concerning inquiries made in the performance of his duties in relation to offences against the criminal law, can the legislature of the province of Quebec constitutionally affect, and has it by its legislation affected:
(i) Crown privilege or the principle of the confidentiality of police sources of information, with respect to information so obtained by such peace officer; or
(ii) the status and exercise of the duties and powers of such peace officer, or of his superior, the chief peace officer of a territory,
such that
(a) Crown privilege or the principle of the confidentiality of police sources of information do not apply?
(b) that privilege will only apply if it is invoked by the persons and in accordance with the conditions set forth in section 308 of the Code of Civil Procedure of the province?
(c) the commissioner is empowered to render a decision concerning, and set aside, the said privilege when it is invoked before him?
(d) the commissioner may compel a peace officer to testify regarding sources of information or produce documents relating thereto?
(e) a peace officer may not, without obtaining prior leave from the Attorney General or one of his deputies, lay an information before a justice of the peace regarding the commission of an offence by an individual, for the justice to decide in accordance with the provisions of the Criminal Code whether a prosecution should be authorized; or
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(f) the Attorney General or the Minister of Justice can direct a peace officer in his police operations and the performance of his duties concerning an offence against the criminal law?
The parties are generally left wide latitude by the Chief Justice or other judges of this Court in formulating the constitutional questions which they submit for approval. However, it does not follow that the Court is bound by these questions, and that it is required to answer them if it may dispose of the appeal without doing so or if it appears that the facts of the case do not provide a basis for such questions. The questions may not be used as a means of transforming an ordinary proceeding into a reference: Vadebonceur v. Landry, [1977] 2 S.C.R. 179, at pp. 187-88.
I should say at once that it will not be necessary to answer the questions stated in paragraphs (e) and (f) of the second question. They were undoubtedly included because of the very broad statements contained in pp. 319 to 322 of the opinion of Turgeon J.A. of the Court of Appeal, concurred in by L'Heureux-Dubé J.A., to the effect that because of structural differences police forces had even greater autonomy and independence from political control in England than in Quebec. These statements led Turgeon J.A. to express obiter dicta, for example, regarding the Act respecting the Ministère de la justice, R.S.Q. 1977, c. M-19, and the Act respecting Attorney-General's Prosecutors, R.S.Q. 1977, c. S-35, and appellant devoted a significant portion of his submission to trying to refute this argument. I do not intend to deal with this subject. First, the similarities and differences in structure do not seem to be of great assistance in answering the other specific questions, which the Court must resolve because they arise out of the facts of the case. Second, there is no basis in the facts of the case for the questions stated in paragraphs (e) and (f) of the second constitutional question.
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Additionally, in my opinion the wording of the second question is incorrect in that it classifies the [TRANSLATION] "principle of the confidentiality of police sources of information" together with Crown privilege. As I will explain below, a distinction must be made between this principle and Crown privilege because they are subject to different sets of legal provisions.
Finally, there is no need to deal with the "status ... of ... the chief peace officer of a territory" as mentioned in question 2(ü): in the context, there is no difference between a chief peace officer and a peace officer, and no party sought to establish any; moreover, the case at bar concerns an ordinary peace officer. In my view, this part of the question should read "the status, the duties and powers of such peace officer".
I would therefore restate the second question as follows:
2. With respect to testimony in the course of such an inquiry by a peace officer, concerning inquiries made in the performance of his duties in relation to offences against the criminal law, can the legislature of the province of Quebec constitutionally affect, and has it by its legislation affected:
(i) the principle of the confidentiality of police sources of information, with respect to information so obtained by such a peace officer; or
(ii) the status, the duties and powers of such peace officer,
such that
(a) the principle of the confidentiality of police sources of information does not apply?
(b) that principle will only apply if it is invoked by the persons and in accordance with the conditions set forth in section 308 of the Code of Civil Procedure of the province?
(c) the commissioner is empowered to render a decision concerning, and set aside, the said principle when it is invoked before him?
(d) the commissioner may compel a peace officer to testify regarding sources of information or produce documents relating thereto?
After the original constitutional questions had been served on the attorneys general, the Attorney General of Canada, the Attorney General for
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Ontario, the Attorney General for New Brunswick and the Attorney General for Alberta intervened, the first in support of appellant's position and the other three in support of respondent Commissioner's position.
The Attorney General of Quebec had been mis en cause in the Superior Court from the outset and supported respondent Commissioner's position throughout.
IV—Arguments of appellant
These arguments appear to be essentially the same as those raised in the Superior Court and the Court of Appeal. It seems convenient to group them in an order similar to that followed by the Superior Court, distinguishing arguments that go to the validity of respondent Commissioner's mandate from those dealing with excess of jurisdiction, in the event that the mandate is valid:
1. The validity of the Commissioner's mandate is challenged for two kinds of reasons:
(1) the mandate applies to matters of exclusive federal jurisdiction, namely:
A. national security and the 1970 October Crisis;
B. specific acts, which can only be the subject of a criminal pre-inquiry;
C. the acts of peace officers in the exercise of the powers and duties conferred on them by the criminal law and criminal procedure.
(2) the mandate contains an unlawful subdelegation of powers;
2. Excess of jurisdiction results:
(1) from the fact that the respondent Commissioner was disqualified by his bias or hostility;
(2) from the fact that he contravened the secrecy rule regarding police informers' identity; in this regard, I shall consider the following points:
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A. the Court of Appeal and Superior Court judgments on the matter;
B. nature and scope of the rule at common law: specific set of legal provisions for enforcing it;
C. has the Code of Civil Procedure affected the rule?
D. can the Quebec legislature constitutionally affect the rule?
V—Validity of mandate
(1) Does the mandate apply to subjects within exclusive federal jurisdiction?
A.—One of the arguments put forward by appellant is that the mandate of respondent Commissioner concerns national security and the 1970 October Crisis. This argument goes to the validity of the mandate. Appellant further contended that if this is not respondent Commissioner's real mandate, it is the one which he is in fact performing, which constitutes an excess of jurisdiction. These two arguments are related and will be considered in turn under this heading.
The text of respondent Commissioner's mandate is cited above. I see nothing in the wording that gives it the scope which appellant seeks to attribute to it.
I think it is also worth reproducing the text of the preambles to certain of the Orders in Council which defined the Commissioner's mandate.
The following is the preamble to Order in Council 1968-77, on which paragraph A of the mandate is based:
[TRANSLATION] WHEREAS a search was conducted on the night of October 6-7, 1972, in the premises located at 3459 St. Hubert Street, Montreal, occupied by the Agence de presse libre du Québec, the Mouvement pour la défense des prisonniers politiques du Québec and the Coopérative de déménagement du 1er mai;
WHEREAS this search was carried out by the R.C.M.P., the Quebec Police Force and the Montreal Urban Community Police Department jointly;
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WHEREAS an officer of each of these police forces has been charged with having undertaken this search without lawful excuse, contrary to s. 115 of the Criminal Code, and all three have pleaded guilty;
WHEREAS the circumstances surrounding this search have not been clarified, and it is in the public interest that they should be, in order to indicate exactly the extent of the responsibility of each of the police forces taking part;
WHEREAS pursuant to s. 1 of the Public Inquiry Commission Act (R.S.Q. 1964, c. 11), the Lieutenant Governor in Council may, whenever he deems it expedient, cause an inquiry to be made into and concerning the administration of justice, and may appoint, by a commission issued to that effect, one or more commissioners by whom such inquiry shall be conducted.
The preamble to Order in Council 3719-77 describes the circumstances which warranted the addition of paragraph B and its first three paragraphs, and paragraph C: it reads in part as follows:
[TRANSLATION] WHEREAS he has been informed that the R.C.M.P. has committed certain illegal acts in Quebec;
WHEREAS it is necessary to amend the mandate of this public inquiry commission, to authorize it to investigate and to report on these illegal acts;
Order in Council 217-79 is the one which added the text of paragraphs (iv) and (v) of paragraph B of the mandate. Its preamble reads in part as follows:
[TRANSLATION] WHEREAS it is necessary to again amend the mandate of this public inquiry commission, to enable it to investigate and report on the recruitment of informers by illegal or reprehensible means and on the preparation, drafting, issuing and distribution of any false communiqués;
In my view, these preambles can only indicate an intention to investigate the allegedly illegal or reprehensible acts or incidents in which various police forces were involved, and I see nothing unconstitutional or illegal in such an intent, in light of the exclusion of the R.C.M.P., as a force, following Keable No. 1.
This leaves the allegation that respondent Commissioner in fact was investigating national security
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and the 1970 October Crisis, and that his avowed purpose was to demonstrate the existence of a police conspiracy seeking to create a climate of apprehended insurrection that would justify certain acts by the police. In his oral argument, counsel for the appellant maintained that the Commissioner purported to determine whether resort to the War Measures Act, R.S.C. 1970, c. W-2, in 1970 was justified. These allegations were based on two public statements made by respondent Commissioner on March 26 and November 20, 1979.
These arguments were dealt with in the Superior Court by Deschênes C.J. as follows, at pp. 23 and 24 of his judgment:
[TRANSLATION] It can be seen at once that the inquiry begun in mid-1977 and still in progress in late 1979 deals with events which occurred several years ago: in spring 1972, in May 1972, in October 1972 and in January 1973. In addition the inquiry must, as would be expected, look into prior or subsequent events that may be related to these.
It would be absurd to try and ignore the violent events which took place in Quebec some ten years ago, the activities of the F.L.Q. (Front de libération du Québec), the 1970 October Crisis and the turmoil that resulted.
Respondent Commissioner found that a close link existed—one of justification—between these violent events and those with which his inquiry was directly concerned. So as to avoid the risk of committing an injustice, let us see what the Commissioner himself said at a public hearing on March 26, 1979.
The trial judge then found it necessary to cite several passages from the statements made by respondent Commissioner on March 26 and November 20, 1979. These can be read in the judgment, the text of which has been published, and there is no need to repeat them. I need only cite the following passage from the statement of November 20, 1979:
[TRANSLATION]
REFERENCE TO THE 1970 OCTOBER CRISIS
Before concluding, I must deal with one last point which seems to need clarification: the connection between the inquiry I am conducting and the events of
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October 1970. As this matter has given rise to some misunderstandings to date, I will try to illustrate my thinking on the subject by way of an example. Let us suppose that an inquiry was being held on the extent of the police forces deployed in Montreal during the last Olympic games. Could anyone possibly conceive of a justification for the massive security measures imposed in Montreal at that time, if the hostage-taking which marked the preceding Games in Munich were left out of account and, so as not to awaken a traumatic memory, any reference to this tragic occurrence were prohibited? The answer of course is no. Would anyone say that by connecting the police deployed in Montreal in 1976 with the events that disrupted the preceding Games in Munich, an inquiry was really being undertaken into the hostage-taking on that previous occasion? The answer once again is clearly no.
The same is true for the position of the Commission regarding the events of October 1970 being considered here: it really is not possible to understand the operations undertaken in 1971 and 1972 by the anti-subversive sections of the police forces operating in Quebec without seeing these operations against the background of the situation created by the 1970 October Crisis. The fact that of necessity some reference has to be made to certain aspects of that crisis in order to comprehend subsequent events does not mean that the inquiry is in any way directed at the crisis itself. Anyone who has followed the work of the Commission closely will know that its investigations are systematically carried out: but one may look in vain for any indication of a systematic incursion by the Commission beyond 1971. I therefore wish to say that the Commission is not conducting an inquiry into the events of October 1970. However, it does not consider that these events are covered by a taboo which it may not violate, even if as a result its mandate is not fully performed.
The trial judge concluded in this regard, at p. 24 of his judgment:
[TRANSLATION] The Court was struck with the coherence and relevance of these statements: they are a complete answer to the arguments of applicant.
[…]
In view of all these circumstances, the Court accordingly concludes that respondent Commissioner has certainly not exceeded his jurisdiction by including the terrorist activities and police actions of 1970, 1971 and
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1972 within the scope of his inquiry, inasmuch as they have a clear connection with the specific events described in the Commissioner's mandate.
Turgeon J.A. of the Court of Appeal, whose opinion was concurred in by L'Heureux-Dubé J.A., at p. 326, made the following observation on the arguments presented by appellant:
[TRANSLATION] The judge below demonstrated comprehensively that these allegations have no foundation, and I agree with that part of his judgment without further comment.
That is also my opinion and I would dismiss these arguments.
B.—Appellant raised a further argument, namely that respondent Commissioner's mandate illegally covered specific acts which can only be the subject of a criminal pre-inquiry.
The same argument was raised in Keable No. 1 but it was dismissed by this Court. Paragraphs B-(iv) and B-(v) have since been added to respondent Commissioner's mandate. The activities described in these paragraphs are clearly less specific or more general than the acts mentioned in the other paragraphs and found in Keable No. 1 to be intra vires.
I would also dismiss this argument.
C.—A further argument raised by appellant against respondent Commissioner's mandate is stated in his submission as follows:
[TRANSLATION] The mandate is also ultra vires in that it applies to the acts of peace officers in the exercise of powers, duties, discretions and operations in the investigation of crimes which are determined by criminal law and procedure, which is within federal jurisdiction, and which only the Parliament of Canada can alter if this proves to be necessary.
In his oral argument, counsel for the appellant did not stress this point, which appears to have been raised in this Court for the first time: it is not mentioned by either the Superior Court or the Court of Appeal. Monet J.A., dissenting in the Court of Appeal, even observed at p. 337:
[TRANSLATION] . . . neither the appellant nor Mr. Vignola contests the right of the executive power as such to conduct an inquiry into the police forces.
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In any case, this point is without foundation and must be dismissed. The mandate of respondent Commissioner is concerned not with the powers, duties and capacities of peace officers as determined by the criminal law, but with the manner in which they were in fact exercised in the circumstances described in the mandate. These are matters which fall within the administration of justice and which cover the discipline of police forces and their members. Saulnier v. Quebec Police Commission, [1976] 1 S.C.R. 572, is an illustration of this. In Attorney General of Alberta v. Putnam, [1981] 2 S.C.R. 267, this Court held that a province does not have the power to take disciplinary action against R.C.M.P. officers assigned to local police duties, but it implicitly recognized as axiomatic that a province has such a power over provincial and municipal police officers. Dickson J., dissenting, but not on this particular point, wrote at p. 279:
Thus it is clear that the province can appoint, control and discipline municipal and provincial police officers.
By the same reasoning, a province can investigate the allegedly illegal or reprehensible behavior of a police force within its constitutional jurisdiction, as well as the allegedly illegal actions of any peace officer.
(2) Does the mandate contain an unlawful subdelegation of powers?
Finally, appellant disputes the validity of the mandate given to respondent Commissioner on the ground that it is so vague that it constitutes an unlawful subdelegation of the power to define the object of the inquiry.
In particular, appellant submits that the phrases "any previous or subsequent events", "the conduct of all persons involved" and "the methods used ... and the frequency of their use" in the mandate indicate no limit as to time, place or person. The result is, in his submission, that respondent Commissioner is called on to define the object