2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool)

2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool)
Collection
Supreme Court Judgments
Date
1996-11-21
Report
[1996] 3 SCR 919
Case number
24309
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Quebec
Subjects
Administrative law
Notes
SCC Case Information: 24309
Decision Content
[1996] 3 S.C.R. 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool) 919
The Attorney General of Quebec Appellant
and
The Régie des alcools, des courses et des jeux Appellant
v.
2747-3174 Québec Inc. Respondent
Indexed as: 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool)
File No.: 24309. 1996: March 27; 1996: November 21.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Civil rights -- Fair hearing by independent tribunal -- Administrative tribunals -- Régie des permis d'alcool -- Cancellation of liquor permits on account of disturbance of public tranquility -- Structure and operating procedures of Régie -- Whether Régie complies with guarantees of independence and impartiality set out in s. 23 of Charter of Human Rights and Freedoms -- Scope of s. 23 of Charter -- Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 23, 56(1) -- Act respecting liquor permits, R.S.Q., c. P-9.1, ss. 2, 75, 86(8).
Following a hearing, the directors of the Régie des permis d'alcool du Québec revoked the respondent's liquor permits on the ground of disturbance of public tranquility -- a penalty provided for in ss. 75 and 86(8) of the Act respecting liquor permits (the "Act"). The respondent brought a motion in evocation in the Superior Court in which it asked (1) that the Régie's decision be quashed and (2) that s. 2 of the Act, which established the Régie, be declared invalid on the basis that the Régie did not comply with the guarantees of independence and impartiality set out in s. 23 of the Charter of Human Rights and Freedoms. The Superior Court granted the motion and, by declaring the impugned provision invalid and of no force or effect, called the very existence of the Régie into question. However, the court suspended the effect of the declaration of invalidity for a period of 12 months. The Attorney General of Quebec and the Régie appealed the decision. In 1993, the Régie des alcools, des courses et des jeux replaced the Régie des permis d'alcool, but the parties considered the Superior Court proceedings to be as important as ever because of the similarity between the two bodies. The Court of Appeal allowed the appeal in part, declaring s. 2 of the Act to be valid. However, the majority of the court held the reference to s. 75 in s. 86(8) of the Act to be invalid and of no force or effect.
Held: The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: Section 23 of the Charter entrenches in Quebec the right of every citizen to a public and fair hearing by an independent and impartial tribunal. The word "tribunal" used in that section is defined in s. 56(1) of the Charter as including "any person or agency exercising quasi-judicial functions". Section 56(1) applies to every agency that exercises quasi-judicial functions, even incidentally. Whether or not s. 23 is applicable therefore depends on the characterization of the functions of the agency that are in question. If they are quasi-judicial, the agency is a "tribunal" and must in exercising them comply with the requirements of impartiality and independence. In this case, s. 23 is applicable to the Régie because a decision to cancel a permit on account of disturbance of public tranquility is the result of a quasi-judicial process. The permit holder's rights are clearly affected by the cancellation. While the issuance of a permit may in certain respects be regarded as a privilege, its cancellation has a significant impact on the livelihood of the permit holder, who loses the right to operate his or her business. It is also significant that the process leading to the cancellation of a permit on account of disturbance of public tranquility is similar to that in a court. The Régie may make its decision only after a hearing in the course of which witnesses may be heard, exhibits filed and submissions made. Although there is strictly speaking no lis inter partes before the Régie, individuals with conflicting interests may present contradictory versions of the facts at the hearing. Finally, a decision to cancel a permit on the ground of disturbance of public tranquility results from the application of a pre-established standard to specific facts adduced in evidence and is a final judgment protected by a privative clause. Although in making such a decision the Régie may to some extent establish a general policy that it has itself developed, it does so by means of a standard imposed by and set out in the Act. The application of such a policy to specific circumstances, with the assessment of the facts it presupposes, is a quasi-judicial act.
Although flexibility must be shown toward administrative tribunals when it comes to impartiality, a detailed review of the Régie's structure and multiple functions raises a reasonable apprehension of bias on an institutional level. The Act authorizes employees of the Régie to participate at every stage of the process leading up to the cancellation of a liquor permit, from investigation to adjudication. While a plurality of functions in a single administrative agency is not necessarily problematic, here a person informed about the role of the Régie's lawyers would have a reasonable apprehension of bias in a substantial number of cases. Although the Act and regulations do not define the duties of these jurists, the Régie's annual report and the description of their jobs at the Régie show that they are called upon to review files in order to advise the Régie on the action to be taken, prepare files, draft notices of summons, present arguments to the directors and draft opinions. The annual report and the silence of the Act and regulations leave open the possibility of the same jurist performing these various functions in the same matter. The annual report mentions no measures taken to separate the lawyers involved at different stages of the process. Yet such measures seem essential in the circumstances. The possibility that a jurist who has made submissions to the directors might then advise them in respect of the same matter is disturbing, especially since some of the directors have no legal training. Such a lack of separation of functions in a lawyer raises a reasonable apprehension of bias. Prosecuting counsel must never be in a position to participate in the adjudication process. The functions of prosecutor and adjudicator cannot be exercised together in this manner. Moreover, the Act and regulations authorize the chairman to initiate an investigation, decide to hold a hearing, constitute the panel that is to hear the case and include himself or herself thereon if he or she so desires. Furthermore, the annual report suggests that other directors sometimes make the decision to hold a hearing, and it does not rule out the possibility that they might then decide the case on its merits. While the fact that the Régie, as an institution, participates in the process of investigation, summoning and adjudication is not in itself problematic, the possibility that a particular director could, following the investigation, decide to hold a hearing and could then participate in the adjudication process would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases. As with the Régie's jurists, a form of separation among the directors involved in the various stages of the process seems necessary to eliminate that apprehension of bias.
The three main components of judicial independence are financial security, security of tenure and institutional independence. Only the last two are in question in this case and, as is the case with impartiality, a certain degree of flexibility is appropriate where administrative agencies are concerned. In interpreting s. 23 of the Charter, it is necessary to consider the functions and characteristics of the administrative agencies in question. In the instant case, the directors have sufficient security of tenure within the meaning of Valente, since sanctions are available for any arbitrary interference by the executive during a director's term of office. The directors' conditions of employment meet the minimum requirements of independence. These do not require that all administrative adjudicators, like judges of courts of law, hold office for life. Fixed-term appointments, which are common, are acceptable. However, the removal of adjudicators must not simply be at the pleasure of the executive. The orders of appointment provide expressly that the directors can be dismissed only for certain specific reasons. In addition, it is possible for the directors to apply to the ordinary courts to contest an unlawful dismissal. Finally, in light of the evidence as a whole, the large number of points of contact between the Régie and the Minister of Public Security does not raise a reasonable apprehension with respect to the Régie's institutional independence. It is not unusual for an administrative agency to be subject to the general supervision of a member of the executive with respect to its management. The essential elements of institutional independence may be summed up as judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function. It has not been shown how the Minister of Public Security might influence the decision-making process. The chairman is responsible for monitoring the Régie's day-to-day activities and its various employees, and for preparing the rolls. The fact that the Minister is ultimately responsible for both the Régie and the various police forces conducting investigations would not cause an informed person to have a reasonable apprehension with respect to the independence of the directors. The directors swear an oath requiring them to perform the duties of their office honestly and fairly. The Minister's links with the various parties involved are accordingly not sufficient to raise concerns.
Although the structure of the Régie does not meet the requirements of s. 23 of the Charter, the various shortcomings that have been identified are not imposed by the constituent legislation or the regulations made thereunder. It is thus not necessary to declare specific provisions of the Act to be inconsistent with the Charter. It is sufficient to grant the respondent's motion in evocation and quash the Régie's decision.
Per L'Heureux-Dubé J.: This case is governed solely by administrative law. Administrative law is part of public law and the common law generally applies in Quebec public law, subject to legislative amendments. The common law methodology must therefore be used rather than a methodology based on the civil law. The Charter has legal preeminence over the common law because of its quasi-constitutional status. To determine what interaction there is between the common law and quasi-constitutional statute law, it is necessary to begin by analysing, identifying and setting out the applicable common law; the effect of the quasi-constitutional statute law on the common law must then be specified.
The respondent's allegations against the Régie des permis d'alcool du Québec fall under the heads of impartiality and independence. An agency's independence from the executive is a prerequisite for, but is not sufficient to guarantee, impartiality. Tribunals are never perfectly independent; their independence is relative and varies with their decision-making level. When the issue of independence is raised in a judicial review context, the courts must therefore assess the necessary degree of independence in each case based on the nature of the administrative tribunal, the institutional constraints it faces and the peremptory nature of its decisions. While independence can be seen as a continuum, the same is not true of impartiality. An agency can be either impartial or biased: there is no intermediate option. Reasonable apprehension of bias is the indicator that allows this issue to be resolved judicially. If the agency would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases, a legal finding of bias will result. Flexibility comes into play in the specific content of the test for reasonable apprehension of bias in each case. However, such flexibility must not be shown in respect of impartiality: the requirement of impartiality cannot be relaxed. It is thus the reasonableness of the apprehension that will vary among administrative tribunals, not their intrinsic impartiality. In the present case, the issue of independence is subordinate to that of impartiality for the purposes of analysis. If bias is found, the issue of independence becomes totally moot.
Agencies that perform quasi-judicial or administrative acts are subject to the nemo judex in propria sua causa debet esse rule in accordance, respectively, with the duty to act in accordance with natural justice and the duty to act fairly. Since the acts alleged against the Régie are either administrative or quasi-judicial, they are subject to the duty of impartiality included in the nemo judex rule. Here, the evidence has clearly shown that the Régie would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases. It should therefore be found that the Régie is biased on an institutional, organizational level. By implication, the Régie has violated the nemo judex rule and thus breached its duty to act fairly. This breach opens the door to the common law remedies applicable in the circumstances: the Régie's decision can be quashed through a motion in evocation under art. 846 C.C.P. and the provisions of the enabling statute can be declared of no force or effect inter partes under arts. 453 et seq. C.C.P.
Before examining the effect of the Charter's provisions on the common law, it must first be determined whether those provisions are applicable to the instant case. In interpreting ss. 23 and 56(1) of the Charter, particularly the concept of a quasi-judicial tribunal, the "modern" methodological approach must be applied. It is time to abandon the method based on the "plain meaning" of words as the basic approach to legal interpretation. According to the modern approach, consideration must be given at the outset not only to the words themselves but also, inter alia, to the context, the statute's other provisions, provisions of other statutes in pari materia and the legislative history in order to correctly identify the legislature's objective. It is only after reading the provisions with all these elements in mind that a definition will be decided on. This "modern" interpretation method has the advantage of bringing out the underlying premises and thus preventing them from going unnoticed, as they would with the "plain meaning" method. In light of the dynamic development of our law and the plurality of perspectives on legal analysis, the era of concealed underlying premises is now over. However, the "plain meaning" method, with its methodological estoppel that prevents the initiation of legal reasoning, is justified in a technical field such as tax law because of the imperatives of stability and predictability of the law; moreover, the use of the "plain meaning" in that area does not have any undesirable side effects.
When ss. 23 and 56(1) of the Charter are interpreted in an informed manner using the modern legal interpretation approach, the definition of the term "quasi-judicial" that must be adopted is one that limits its denotation to the "matters of penal significance" category. Section 23 is therefore applicable only to "agencies exercising quasi-judicial functions involving `matters of penal significance'". The common law remedies are available when an administrative agency makes a quasi-judicial decision in the matters of penal significance category, and ss. 23 and 56(1) of the Charter provide other remedies. In particular, in the event of a breach of the duty to be impartial in this category, the aggrieved individual may have the enabling statute struck down erga omnes, in whole or in part, under s. 52 of the Charter . In the present case, the Régie's decision to cancel the respondent's liquor permit was not a quasi-judicial decision in the matters of penal significance category. This type of decision falls within the "non-penal" category. Accordingly, s. 23 of the Charter is not applicable to this case and the erga omnes declaratory remedy is not available. The case is governed rather by administrative law and the remedies of evocation and declaration. Since the respondent's application is well founded, there is no reason to decline to exercise the remedial discretion conferred on the courts by the Code of Civil Procedure. The motion in evocation must therefore be allowed and the Régie's decision set aside.
Cases Cited
By Gonthier J.
Referred to: R. v. Lippé, [1991] 2 S.C.R. 114; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; Minister of National Revenue v. Coopers & Lybrand, [1979] 1 S.C.R. 495; Syndicat canadien de la fonction publique v. Conseil des services essentiels, [1989] R.J.Q. 2648; Jacob et Bar Le Morency Inc. v. Régie des permis d'alcool du Québec (1988), 16 Q.A.C. 308; Taverne Le Relais Inc. v. Régie des permis d'alcool du Québec, [1989] R.J.Q. 2490; Alliance des professeurs catholiques de Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; Valente v. The Queen, [1985] 2 S.C.R. 673; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; Re Sawyer and Ontario Racing Commission (1979), 24 O.R. (2d) 673; Després v. Association des arpenteurs-géomètres du Nouveau-Brunswick (1992), 130 N.B.R. (2d) 210; Khan v. College of Physicians and Surgeons of Ontario (1992), 76 C.C.C. (3d) 10; Beauregard v. Canada, [1986] 2 S.C.R. 56; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; Coffin v. Bolduc, [1988] R.J.Q. 1307; Nantais v. Bolduc, [1988] R.J.Q. 2465; Services Asbestos Canadien (Québec) Ltée v. Commission de la construction du Québec, [1989] R.J.Q. 1564; G.E. Hamel Ltée v. Cournoyer, [1989] R.J.Q. 2767; Société de vin internationale Ltée v. Régie des permis d'alcool du Québec, J.E. 91-853.
By L'Heureux-Dubé J.
Referred to: Bisaillon v. Keable, [1980] C.A. 316, rev'd [1983] 2 S.C.R. 60; Laurentide Motels Ltd. v. Beauport (Ville) (1986), 3 Q.A.C. 163, rev'd [1989] 1 S.C.R. 705; Maska Auto Spring Ltée v. Ste-Rosalie (Village), [1991] 2 S.C.R. 3; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150; Dickason v. University of Alberta, [1992] 2 S.C.R. 1103; Uniacke v. Dickson (1848), 1 N.S.R. 287; Smith v. National Trust Co. (1912), 45 S.C.R. 618; Zaidan Group Ltd. v. London (City) (1990), 71 O.R. (2d) 65, aff'd [1991] 3 S.C.R. 593; Frame v. Smith, [1987] 2 S.C.R. 99; Bhadauria v. Seneca College of Applied Arts and Technology (1979), 27 O.R. (2d) 142, rev'd [1981] 2 S.C.R. 181; Canada Trust Co. v. Ontario Human Rights Commission (1990), 69 D.L.R. (4th) 321; R. v. Lippé, [1991] 2 S.C.R. 114; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; National Anti-Poverty Organization v. Canada (Attorney General), [1989] 3 F.C. 684, leave to appeal refused, [1989] 2 S.C.R. ix; Alliance des professeurs catholiques de Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; In re H. K. (An Infant), [1967] 2 Q.B. 617; Energy Probe v. Atomic Energy Control Board, [1985] 1 F.C. 563, leave to appeal refused, [1985] 1 S.C.R. viii; Saumur v. Procureur général de Québec, [1964] S.C.R. 252; Taylor v. Attorney-General (1837), 8 Sim. 413, 59 E.R. 164; British Railways Board v. Pickin, [1974] A.C. 765; Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724; R. v. St. Pierre, [1995] 1 S.C.R. 791; R. v. McIntosh, [1995] 1 S.C.R. 686; R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Larkin (1942), 29 Cr. App. R. 18; R. v. DeSousa, [1992] 2 S.C.R. 944; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; R. v. Lewis, [1996] 1 S.C.R. 921; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Judges of the Provincial Court (Man.) v. Manitoba (1995), 102 Man. R. (2d) 51; Roynat Inc. v. Ja-Sha Trucking & Leasing Ltd. (1992), 89 D.L.R. (4th) 405; Bodnar v. Real Estate Council of British Columbia (1994), 121 D.L.R. (4th) 27; Alberta (Treasury Branches) v. M.N.R., [1996] 1 S.C.R. 963; Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, [1994] 3 S.C.R. 3; Schwartz v. Canada, [1996] 1 S.C.R. 254; Coffin v. Bolduc, [1988] R.J.Q. 1307; Minister of National Revenue v. Coopers & Lybrand, [1979] 1 S.C.R. 495; Attorney-General v. Prince Ernest Augustus of Hanover, [1957] A.C. 436; Lincoln College's Case (1595), 3 Co. Rep. 58b, 76 E.R.764; Chamberlain's Case (1611), Lane 117, 145 E.R. 346; City of Victoria v. Bishop of Vancouver Island, [1921] 2 A.C. 384; The King v. Assessors of the Town of Sunny Brae, [1952] 2 S.C.R. 76; Lisenko v. Société zoologique de Granby Inc., T.D.P.Q., No. 460-53-000001-938, March 8, 1994; Cutler v. Québec (Commission des droits de la personne) (1986), 7 C.H.R.R. D/3610; Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660; Re Peralta and The Queen in right of Ontario (1985), 49 O.R. (2d) 705, aff'd [1988] 2 S.C.R. 1045; The Queen v. Inhabitants of Watford (1846), 9 Q.B. 626, 115 E.R. 1413; Dubois v. The Queen, [1985] 2 S.C.R. 350; Starr v. Houlden, [1990] 1 S.C.R. 1366.
Statutes and Regulations Cited
Act respecting liquor permits, R.S.Q., c. P-9.1, ss. 2 [rep. 1993, c. 39, s. 77], 4 [idem], 5 [idem], 8 [idem], 9 [idem], 10 [idem], 11 [idem], 12 [idem], 15 [idem], 16 [sub. 1991, c. 51, s. 3; rep. 1993, c. 39, s. 77], 21 [am. 1986, c. 86, s. 38; am. 1988, c. 46, s. 24; rep. 1993, c. 39, s. 77], 22 [idem], 24 [idem], 24.1 [ad. 1991, c. 31, s. 1], 25 et seq., 36 [am. 1983, c. 28, s. 50; am. 1986, c. 95, s. 208], 39 [am. 1987, c. 12, s. 51; am. 1991, c. 51, s. 5], 40, 41 to 42.2, 51 [sub. 1991, c. 51, s. 11], 53 to 68, 75 [am. 1986, c. 96, s. 26; am. 1991, c. 51, s. 14], 85 [am. 1986, c. 86, s. 41; am. 1988, c. 46, s. 24], 86 [am. 1983, c. 28, s. 54; am. 1986, c. 96, s. 28; am. 1990, c. 4, s. 633], 86(8), [am. 1986, c. 96, s. 28], 96 [am. 1986, c. 58, s. 69; idem, c. 86, s. 41; am. 1988, c. 46, s. 24; am. 1991, c. 51, s. 24], 99 [am. 1986, c. 86, s. 41; am. 1988, c. 46, s. 24], 101 [rep. 1993, c. 39, s. 81], 102 [am. 1991, c. 51, s. 26], 103, 104 [rep. 1993, c. 39, s. 81], 104.1 [ad. 1986, c. 96, s. 32; rep. 1993, c. 39, s. 81], 107 [rep. 1993, c. 39, s. 81], 110, 111 [am. 1983, c. 28, s. 57; am. 1986, c. 86, s. 41; am. 1988, c. 46, s. 24], 116, 175 [am. 1986, c. 86, s. 38; am. 1988, c. 46, s. 24].
Act respecting the Régie des alcools, des courses et des jeux and amending various legislative provisions, S.Q. 1993, c. 39.
Act to amend the Code of Civil Procedure and the Charter of Human Rights and Freedoms, S.Q. 1993, c. 30.
Canadian Bill of Rights, S.C. 1960, c. 44 [now R.S.C., 1985, App. III], s. 2(e), (f).
Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 23 [am. 1982, c. 17, s. 42], 38 [sub. idem, c. 61, s. 15], 52 [idem, s. 16], 56(1) [am. 1989, c. 51, s. 2], 57, 71, para. 2(1) [sub. idem, s. 5], 77, para. 2 [idem].
Charter of Human Rights and Freedoms, S.Q. 1975, c. 6, s. 23.
Civil Code of Lower Canada, arts. 157 [rep. S.Q. 1980, c. 39, s. 14], 1018.
Civil Code of Québec, S.Q. 1991, c. 64, art. 1427.
Code of Civil Procedure, R.S.Q., c. C-25, arts. 1, 4(j) [sub. 1992, c. 57, s. 171], 13 [sub. 1982, c. 17, s. 2; am. 1984, c. 26, s. 1; am. 1993, c. 30, s. 1], 14, 15, 22 [am. 1988, c. 21, s. 76; am. 1992, c. 57, s. 422], 49 to 54, 84, 453 et seq., 834 to 837, 844 [am. 1992, c. 57, s. 390], 845, 846 [am. idem, s. 422].
Convention for the Protection of Human Rights and Fundamental Freedoms [the European Convention on Human Rights], 213 U.N.T.S. 221, art. 6(1).
Courts of Justice Act, R.S.Q., c. T-16, s. 1 [am. 1988, c. 21, s.1; am. 1992, c. 61, s. 612].
Federal Court Act, R.S.C., 1985, c. F-7 .
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 14(1).
Public Service Act, R.S.Q., c. F-3.1.1.
Règles de régie interne de la Régie des permis d'alcool du Québec, R.R.Q. 1981, c. P-9.1, r. 9, s. 15.
Regulation respecting the handling of complaints and the procedure applicable to the investigations of the Commission des droits de la personne, (1991) 123 G.O. II, 1097.
Regulation respecting the procedure applicable before the Régie des permis d'alcool du Québec, R.R.Q. 1981, c. P-9.1, r. 7, ss. 22, 26, 36.
Rules of practice of the Human Rights Tribunal, (1993) 125 G.O. II, 6031, s. 51.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 10.
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APPEAL from a judgment of the Quebec Court of Appeal, [1994] R.J.Q. 2440, 65 Q.A.C. 245, 122 D.L.R. (4th) 553, affirming in part a judgment of the Superior Court, [1993] R.J.Q. 1877, 17 Admin. L.R. (2d) 69, granting the respondent's motion in evocation. Appeal allowed.
Jean-Yves Bernard and Benoît Belleau, for the appellants.
Simon Venne and Marie Paré, for the respondent.
\\Gonthier J.\\
English version of the judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. delivered by
1 GONTHIER J. -- This appeal gives the Court an opportunity to clarify the scope of the requirements imposed on administrative tribunals by s. 23 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12. The specific case of the Régie des permis d'alcool underscores the need to reconcile the imperatives of administrative convenience with the principles of impartiality and independence, which cannot readily be compromised.
I - Facts
2 The respondent corporation operated the Bistro-Bar La Petite Maison Enr. in St-Jérôme pursuant to two permits issued by the Régie des permis d'alcool. Following a number of complaints and the combined action of three police forces, the chairman of the Régie sent the respondent a notice of summons on May 1, 1992. In that document, which set out the various allegations against the respondent, the Régie informed the respondent that it intended to hold a hearing before making any decision concerning the cancellation or suspension of the permits. Counsel for the Régie and for the respondent accordingly adduced evidence for seven days before two directors through a number of witnesses. Then, on October 14, 1992, the chairman of the Régie sent the respondent a supplementary notice of summons on the basis of new evidence. A further seven days of hearings were necessary before the directors decided, on February 17, 1993, to revoke both of the respondent's liquor permits on the ground of disturbance of public tranquility. Among the reasons given by the directors for imposing this penalty under ss. 75 and 86(8) of the Act respecting liquor permits, R.S.Q., c. P-9.1 (the "Act"), were that the establishment caused excessive noise and that narcotics trafficking was taking place there.
3 The respondent challenged that decision in the Superior Court by way of evocation. It asked that the decision be quashed and further asked that s. 2 of the Act, which establishes the Régie, be declared invalid on the basis that the Régie does not comply with the guarantees of independence and impartiality set out in s. 23 of the Charter. On June 15, 1993, the Superior Court granted the motion and, by declaring the impugned provision invalid and of no force or effect, called the very existence of the Régie into question: [1993] R.J.Q. 1877, 17 Admin. L.R. (2d) 69. However, the Superior Court suspended the effect of the declaration of invalidity for a period of 12 months.
4 An appeal was brought by the Attorney General of Quebec and the Régie. Before the appeal could be heard on its merits, the Régie des alcools, des courses et des jeux replaced the Régie des permis d'alcool pursuant to the Act respecting the Régie des alcools, des courses et des jeux and amending various legislative provisions, S.Q. 1993, c. 39. That Act, part of which came into force on July 14, 1993, provides that the new body acquires the rights and assumes the obligations of the defunct Régie des permis d'alcool and has an expanded role in respect of racing and gambling. The parties nevertheless considered the Superior Court proceedings to be as important as ever because of the similarity between the two bodies. On September 23, 1994, the Court of Appeal allowed the appeal in part, declaring s. 2 of the Act: [1994] R.J.Q. 2440, 65 Q.A.C. 245, 122 D.L.R. (4th) 553, to be valid. However, the majority of the court held the reference to s. 75 in s. 86(8) of the Act to be invalid and of no force or effect. Beauregard J.A., in dissent, would have allowed the appeal in its entirety.
II - Relevant Statutory Provisions
5 Act respecting liquor permits, R.S.Q., c. P-9.1
2. A body is established under the name of "Régie des permis d'alcool du Québec".
75. The holder of a permit must not use that permit in a manner that will disturb public tranquility.
85. The Régie may cancel a permit or suspend it for such period as it may determine, of its own initiative or on the application of the permit holder, the Minister of Public Security, the municipal corporation in whose territory the permit is used or any other interested person.
86. The Régie may cancel or suspend a permit, if
. . .
(8) the permit holder contravenes any provision of sections 70 to 73, 75, 78 and 82, or refuses or neglects to comply with the requirements of the Régie contemplated in section 110;
Charter of Human Rights and Freedoms, R.S.Q., c. C-12
23. Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.
. . .
56. (1) In sections 9, 23, 30, 31, 34 and 38, in Chapter III of Part II and in Part IV, the word "tribunal" includes a coroner, a fire investigation commissioner, an inquiry commission, and any person or agency exercising quasi-judicial functions.
III - Judgments of the Courts Below
Superior Court
6 Vaillancourt J. considered the motion submitted to him from the perspective of s. 23 of the Charter. In his view, s. 23 is applicable where the Régie exercises quasi-judicial functions, such as where it suspends a liquor permit in effect. Vaillancourt J. then made a distinction between impartiality and independence and, although of the view that impartiality is invariable, stated that the requirements of independence must be applied less strictly to administrative bodies. In assessing the structure of the Régie, Vaillancourt J. applied the tests developed in R. v. Lippé, [1991] 2 S.C.R. 114. It was thus first necessary to determine whether a fully informed person would have a reasonable apprehension of bias in a substantial number of cases.
7 On this point, Vaillancourt J. was of the view that two factors establish institutional bias on the part of the Régie. First, there is a close relationship of dependence between the Minister of Public Security, the chairman, the directors, counsel for the Régie and the police. Second, Vaillancourt J. pointed out that in the vast majority of cases the Régie conducts the investigation, assesses the complaints, lays the complaints, presides over the hearing and makes the decisions. According to Vaillancourt J., the apprehension of bias resulting from these characteristics of the Régie cannot be sufficiently alleviated by the fact that the Act contains other guarantees, such as those related to the security of tenure and financial security of the directors. In his view, the constitution and organization of the Régie at the relevant time did not meet the requirements of s. 23 of the Charter. He therefore considered it necessary to declare the provision establishing the Régie invalid and of no force or effect. To mitigate the consequences of the organization's immediate disappearance, however, Vaillancourt J. suspended the effect of his decision for a period of 12 months.
Court of Appeal
Brossard J.A.
8 According to Brossard J.A., an analysis of the Act confirms the trial judge's finding of a close relationship and even interdependence among all those involved in the process of investigation, summoning, hearing and adjudication. That is true of the directors, police investigators and counsel, who are directly or indirectly dependent on the Minister of Public Security for various aspects of their functions. Brossard J.A. also considered that the Act does not include further guarantees capable of overcoming the apprehension of bias. Thus, if the Régie were to be considered an adjudicative body, its institutional structure would not, according to Brossard J.A., meet the requirements of impartiality and independence under s. 23 of the Charter.
9 In Brossard J.A.'s view, however, the Régie is first and foremost an economic regulatory agency that exercises adjudicative functions only incidentally. As such, it does not have to meet the requirements of s. 23 when it is exercising merely administrative functions. This conclusion was sufficient for Brossard J.A. to reverse the trial judgment declaring s. 2 of the Act invalid and of no force or effect.
10 Brossard J.A. nevertheless considered that the Régie is subject to s. 23 of the Charter when making an adjudicative decision. He concluded after analysing the Act, cases and authors that only a decision to cancel or suspend a permit on account of disturbance of public tranquility under ss. 75 and 86(8) has those characteristics. Since the Régie does not provide the guarantees of impartiality and institutional independence required to exercise that power, Brossard J.A. declared the reference to s. 75 in s. 86(8) of the Act invalid and of no force or effect.
LeBel J.A.
11 LeBel J.A. agreed with Brossard J.A. concerning the very existence of the Régie. As a multifunctional body that exercises powers of regulation, supervision, investigation and adjudication, the Régie cannot be subject in its entirety to the requirements of s. 23 of the Charter. According to LeBel J.A., the functions are distinct and can be severed, and s. 23 applies only to those that are judicial or quasi-judicial in nature.
12 On this point, LeBel J.A. dissociated himself from Brossard J.A.'s opinion. In his view, the entire process of cancellation or suspension of liquor permits under ss. 85 and 86 of the Act is judicial or quasi-judicial in nature. LeBel J.A. noted in particular that this process could result i