A.G. of Que. and Keable v. A.G. of Can. et al.

A.G. of Que. and Keable v. A.G. of Can. et al.
Collection
Supreme Court Judgments
Date
1978-10-31
Report
[1979] 1 SCR 218
Judges
Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
Quebec
Subjects
Administrative law
Constitutional law
State
Decision Content
SUPREME COURT OF CANADA
A.G. of Que. and Keable v. A.G. of Can. et al., [1979] 1 S.C.R. 218
Date: 1978-10-31
Attorney General of the Province of Quebec and Jean Keable Appellants;
and
The Attorney General of Canada and The Solicitor General of Canada Respondents;
and
The Commissioner of the Royal Canadian Mounted Police Mis en cause;
and
The Attorney General of Ontario, The Attorney General of New Brunswick, The Attorney General of Manitoba, The Attorney General of British Columbia, The Attorney General of Saskatchewan and The Attorney General of Alberta Intervenors.
1978: May 23, 24, 25, 26; 1978: October 31.
Present: Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Constitutional law — Provincial commission of inquiry — Powers in relation to federal agencies — Criminal activities involving members of the Royal Canadian Mounted Police — British North America Act, ss. 91, 92 — Public Inquiry Commission Act, R.S.Q. 1964, c. 11 — Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9 — Department of the Solicitor General Act, R.S.C. 1970, c. S-12.
Crown — Immunity of its representatives — Application of provincial statutes to the Crown in right of the federal government — Privilege invoked in the interest of national security — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 41 — Official Secrets Act, R.S.C. 1970, c. 0-3, s. 4.
Administrative law — Provincial commission of inquiry — Evocation — Staying order — Code of Civil Procedure, arts. 846 to 850.
Appellant Jean Keable ("the Commissioner") 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, including the Royal Canadian Mounted Police. Respondents' applica­tion for a writ of evocation against the Commissioner was dismissed in the Superior Court, but granted by the Court of Appeal of Quebec, which ordered the Commis­sioner to suspend all proceedings and to transmit to the office of the Superior Court the record in the case (Kaufman J.A., dissenting in part, would have issued a restricted staying order). Appellants are appealing this judgment of the Court of Appeal and this Court must provide answers on constitutional issues raised in the form of five questions.
Held: The appeal should be allowed in part and the answers to the constitutional questions are as follows:
Question 1: Are the Orders in Council defining the mandate of the commissioner, in whole or in part, ultra vires the Province of Quebec?
Answer: Yes, to the following extent as concerns the Royal Canadian Mounted Police: in paragraph a), the words "et la fréquence de leur utilisation" (and the frequency of their use); in paragraph c) the words "ainsi que la fréquence de leur utilisation" (and the frequency of their use); and paragraph d).
Question 2: Are the powers of a commissioner appointed under provincial legislation for the purpose of inquiring into matters concerning the administration of justice in the Province limited by the distribution of legislative powers as provided for in the British North America Act?
Answer: Yes.
Question 3: If members of a federal institution, namely, the Royal Canadian Mounted Police, be involved in allegedly criminal or reprehensible acts, does such a commissioner have the right, while conducting an inqui­ry into the circumstances surrounding the commission of said acts, to inquire into the federal institution itself or one of its services, its rules, policies and procedures, and to make recommendations for the prevention of the commission of said acts in future?
Answer: No.
Question 4: Can the Solicitor General of Canada or any other Minister of the Crown in right of Canada be compelled by such a commissioner to appear, testify and produce documents?
Answer: No.
Question 5: Does a Minister of the Crown in right of Canada have the constitutional power to prevent, by means of affidavit or otherwise, the production of docu­ments demanded by such a commissioner when such documents may relate to the commission of allegedly criminal or reprehensible acts, to circumstances surrounding such acts, or to the frequency of their occurrence? Answer: Yes.
The suspension of proceedings is limited to proceedings in respect of matters relating to the parts of the mandate found to be ultra vires and to the decisions and subpoe­nas of the Commissioner under attack.
Per Pigeon, Martland, Ritchie, Dickson and Beetz JJ.: The Judge of the Superior Court was not justified in ruling that the "Commissioner is not a court and will become one only when and to the extent that he decides to impose penalties in the exercise of his ancillary powers". Evocation was available to challenge the validi­ty of the Commissioner's mandate, subpoenas and orders on jurisdictional and constitutional grounds.
A provincial statute cannot be effective beyond the constitutional limits of a provincial legislature's author­ity. A province may therefore set up a commission and issue it to investigate and report on "The Administration of Justice in the Province" since it is a matter within the scope of provincial authority. It can also investigate a matter of general scope, such as organized crime, as in Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152, or a criminal homicide as in Faber v. The Queen, [1976] 2 S.C.R. 9, or arson, as in R. v. Coote (1873), L.R. 4 P.C. 599. In the case at bar, the inquiry into specific criminal acts allegedly committed by mem­bers of the R.C.M.P. was validly ordered. However, the Commissioner cannot base himself on this power to inquire into the administration of the R.C.M.P., which is operating under the authority of a federal statute. Parliament has the authority for the establishment and administration of this force and no provincial authority may intrude into its management. While acknowledging the power of the Commissioner to inquire into the methods used during searches or other incidents men­tioned in the mandate, the parts of paragraphs (a) and (c) [of Order in Council 2986-77, amended by Order in Council 3719-77] dealing not with the methods used during the incidents in question but with "the frequency of their use" must be considered ultra vires with respect to the R.C.M.P. The inquiry then no longer contem­plates criminal acts but the methods used by the police forces. For similar reasons and to the same extent, paragraph (d) is ultra vires, as it gives the Commission­er the power to make recommendations on steps to be taken to avoid the repetition of illegal acts, since such recommendations would contemplate changes in the regulations and practices of an agency of the federal government. To answer the fourth constitutional question, it must be noted that the law relating to the Crown is governed by the common law, under which a commission of inquiry has no power to compel the attendance of wit­nesses and to require the production of documents. Any jurisdiction for such purposes depends on statutory au­thority and provincial legislation cannot be effective by itself to confer such jurisdiction as against the Crown in right of Canada. The subpoenas issued to the Solicitor General are not addressed to him personally but in his capacity as representative of the Crown.
The last constitutional question relates to the extent of the Crown privilege claimed in the interest of national security, as well as the scope of s. 41 of the Federal Court Act with respect to the Commissioner. Although this enactment is in the Federal Court Act, it is appli­cable to any court, as well as to any official invested with the powers of a court for the production of docu­ments. Whenever the Commissioner claims to exercise such powers he is subject to the provisions applicable to a court. The Commissioner cannot challenge the affida­vit submitted by the minister in order to justify Crown privilege, since he is not a superior court, and he is therefore bound to accept the affidavit submitted. This Crown privilege is also applicable to the documents which the Commissioner obtained from other witnesses. Even apart from the Official Secrets Act, in the present case, the documents entrusted by the R.C.M.P. to mem­bers of police forces under provincial authority remained secret and any obligation of confidentiality assumed by the latter does not disappear in the face of orders given by their provincial superiors.
As for the suspension of all proceedings in the inquiry, the Court of Appeal was right to extend the suspension of all the proceedings in the inquiry since art. 848 C.C.P. contemplates the transmission to the office of the Superior Court of the "record in the case". When the validity of the Commissioner's mandate was in issue, the "case" was the whole inquiry. Now that the Court has decided which parts of this mandate are valid, the suspension of proceedings should be restricted to the parts of the mandate declared ultra vires and to the decisions and subpoenas of the Commissioner under attack.
Per Spence and Estey JJ.: Reference is made especial­ly to the judgments of this Court in Faber and Di Iorio in recognizing the validity of the Commissioner's mandate in the case at bar, and it is important to emphasize that Di Iorio must not be read as permitting the invasion by provincial action of the sanctity of the right to remain silent during what is in truth and substance a criminal investigation. Even if the majority in this Court stressed in Faber the fact that the latter had not been charged when he was called to testify, the circum­stances, sometimes almost accidental or at least undi­rected, of the existence or non-existence of a charge by indictment, information or otherwise, is not of controlling significance when determining the constitutional status of a process such as we are now considering.
In Di Iorio) and in the case at bar, the inquiry is general in scope, but the Commission cannot perform its mandate without an investigation into specific instances of alleged criminal activities. However, where, as in the case here, the substance of the provincial action is predominantly and essentially an inquiry into some aspects of the criminal law and the operations of provin­cial and municipal police forces in the Province, and not a mere prelude to prosecution by the Province of specific criminal activities, the provincial action is authorized under s. 92(14) of the B.N.A. Act. This right on the part of the Province to investigate the operations of the provincial and municipal police is part of the provincial authority over the administration of justice but does not by a back door, as it were, lead to a right to investigate a federal police organization. This judgment, and the aforementioned judgments of this Court, must not be seen as a hardening into what might be construed as an arbitrary principle available in a slide rule sense for the determination of appropriate provincial or federal actions in related but not necessarily parallel circum­stances.
Per Pratte J.: Had it not been for the majority decision of this Court in Faber, he would have answered the first constitutional question differently and said that the Commission's mandate was in excess of provincial powers to the extent that it provides for a coercive inquiry which is essentially aimed at investigating spe­cific crimes and searching for their authors.
Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Faber v. The Queen, [1976] 2 S.C.R. 9, applied; R. v. Coote (1873), L.R. 4 P.C. 599; Three Rivers Boatman v. Canada Labour Relations Board, [1969] S.C.R. 607; Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756; Cotroni v. The Quebec Police Commission, [1978] 1 S.C.R. 1048; Reference re a Commission of Inquiry into the Police Department of Charlottetown (1977), 74 D.L.R. (3d) 422; Kelly & Sons v. Mathers (1915), 23 D.L.R. 225; Attorney Gen­eral for the Commonwealth of Australia v. Colonial Sugar, [1914] A.C. 237; Cook v. Attorney General (1909), 28 N.Z.L.R. 405; McGee v. Pooley, [1931] 4 D.L.R. 475; Lymburn v. Mayland, [1932] A.C. 318; Attorney General for Saskatchewan v. Attorney General of Canada, [1949] A.C. 110; Her Majesty in right of Alberta v. C.T.C., [1978] 1 S.C.R. 61; Quebec North Shore Paper v. C.P. Ltd., [1977] 2 S.C.R. 1054; R. v. Richardson, [1948] S.C.R. 57; Gauthier v. The King (1917), 56 S.C.R. 176; R. v. Snider, [1954] S.C.R. 479; La Société Les Affréteurs Réunis and The Shipping Controller, [1921] 3 K.B. 1; Crombie v. The King, [1923] 2 D.L.R. 542; R. v. Lanctot (1941), 71 Que. K.13. 325; Cahoon v. Le Conseil de la Corporation des Ingénieurs, [1972] R.P. 209; Duncan v. Cammell Laird & Co. Ltd., [1942] A.C. 624; Conway v. Rimmer, [1968] A.C. 910; Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638; Re Royal Commission and Ashton (1975), 64 D.L.R. (3d) 477; Rogers v. Secretary of State, [1972] 2 All E.R. 1057; Batary v. Attorney General for Saskatchewan et al., [1965] S.C.R. 465, referred to; Guay. v. Lafleur, [1965] S.C.R. 12; St. John v. Fraser, [1935] S.C.R. 441, distinguished.
APPEAL from a decision of the Court of Appeal of Quebec[1] reversing a judgment of the Superior Court[2]. Appeal followed in part.
Gérald Tremblay and Rodolphe Bilodeau, for the Attorney General of Quebec.
Michel Décary and Jean-Pierre Lussier, for Jean Keable.
Joseph Nuss, Q.C., and G. H. Waxman, for the Attorney General of Canada.
Michel Robert and Louyse Cadieux, for the Solicitor General of Canada.
Pierre Lamontagne, Q.C., and Victoria A. Per­cival, for the Commissioner of the Royal Canadian Mounted Police.
J. D. Watt, D. W. Mundell, Q.C., and L. E. Weinrib, for the Attorney General of Ontario.
H. Hazen Strange, Q.C., and Patricia L. Cumming, for the Attorney General of New Brunswick.
M. Samphir and B. W. Dreyer, for the Attorney General of Manitoba.
Louis Lindholm, for the Attorney General of British Columbia. S. Kujawa, Q.C., and K. W. MacKay, for the Attorney General of Saskatchewan.
Ross' Paisley, Q.C., and W. Henkel, Q.C., for the Attorney General of Alberta.
The judgment of Martland, Ritchie, Pigeon, Dickson and Beetz JJ. was delivered by
PIGEON J.—This is an appeal from a judgment of the Court of Appeal of Quebec reversing the judgment of Hugessen J. of the Superior Court and ordering the issuance of a writ of evocation against Jean Keable, one of the appellants in this Court, also ordering him to suspend all proceedings as inquiry commissioner and to transmit to the office of the Superior Court the record in the case and all the exhibits connected therewith. Kaufman J.A., dissenting in part, would have issued a restricted staying order.
The proceedings were instituted by a motion to a judge of the Superior Court under art. 846-850 C.C.P. for the issuance of a writ of evocation against appellant Jean Keable in his capacity of Commissioner, appointed under the Public Inquiry Commission Act of the Province of Quebec (R.S.Q. 1964, c. 11). It was alleged that the subject matter of the inquiry being related to the administration of the Royal Canadian Mounted Police was beyond the scope of provincial powers and that some decisions of the Commissioner respecting the scope of the inquiry and the docu­ments required to be produced by the Solicitor General of Canada were invalid.
Availability of evocation
In the Superior Court, Hugessen J. dismissed the application on the basis that the Commissioner was not a court and therefore not amenable to evocation: [TRANSLATION] "respondent Commis­sioner is not a court and will become one only when and to the extent that he decides to impose penalties in the exercise of his ancillary power".
The Court of Appeal was unanimous in reject­ing that view. Under s. 7 of the Public Inquiry Commission Act, a commissioner has "with respect to the proceedings upon the hearing, all the powers of a judge of the Superior Court in term". Relying on this provision the Commissioner has issued subpoenas to the Solicitor General of Canada and rendered decisions requiring him to produce a number of documents pertaining to the administration of the Royal Canadian Mounted Police. In so acting, the Commissioner was claim­ing to exercise some powers of a court against the Solicitor General. The latter could not be required to wait until he was sentenced for contempt in order to challenge the validity of the orders and of the Commission itself if he had good legal grounds to dispute their validity. The writ of evocation under the present Code of Civil Procedure is the equivalent of certiorari and prohibition combined: Three Rivers Boatman v. Canada Labour Rela­tions Board[3] Prohibition is properly applied for at the outset of the impugned proceedings: Bell v. Ontario Human Rights Commission[4]. It was sug­gested that an injunction would have been the proper remedy but, under art. 758 C.C.P., "an order of injunction can in no case be granted to restrain legal proceedings".
Much was sought to be made of such cases as Guay v. Lafleur[5] and St. John v. Fraser[6], in which applications to restrain the proceedings of a com­mission of inquiry were dismissed on the basis that these were administrative not judicial proceedings, but those were applications made by persons whose actions were being investigated and against whom no judicial power was being exercised. Such is not the case here. Assuming the Commissioner's report will not amount to any judicial or quasi-judicial determination, what is presently in issue is the validity of strictly judicial acts: the compulsion of witnesses to testify and to produce documents. It is conclusively established by the recent judg­ment of this Court in Cotroni v. Quebec Police Commission[7], that the validity of the conviction of a witness for contempt by a commissioner with similar powers is subject to judicial review. The Court of Appeal was plainly right in holding that this was not the only possible remedy and that evocation was available to challenge the validity of the Commissioner's mandate, subpoenas and orders on jurisdictional and constitutional grounds.
The mandate
The Commissioner's terms of reference as determined by provincial orders in council 1968-77, 2736-77, 2986-77 and 3719-77 are as follows:
[TRANSLATION] (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;
(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;
The subpoenas
The list of documents called for in the subpoena issued September 28, 1977 to the Solicitor General of Canada included the following:
[TRANSLATION] Concerning the search (opération bri­cole) made during the night of October 6 to 7, 1972 in the premises located at 3459 St. Hubert Street in 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 1" mai;
PLEASE BRING WITH YOU:
I—The originals of all files or documents in your possession prepared by the R.C.M.P., the Quebec Police Force or the Montreal Urban Community Police Department, or any other person, relating to opération bricole, and, without restricting the generality of the foregoing:
1.—All operation reports in your possession;
2.—All analysis reports on the documents seized;
3.—The notebooks, analysis reports and operation reports and records of the R.C.M.P. members who took part in the operation;
7.—All analysis reports on the Mouvement pour la défense des prisonniers politiques du Québec, the Agence de presse libre du Québec and the Coopé­rative de déménagement du 1" mai prior to Octo­ber 7, 1972;
8.—All reports on technical projects (electronic eaves-dropping) concerning the Mouvement pour la défense des prisonniers politiques du Québec, the Agence de presse libre du Québec and the Coopérative de déménagement du 1er mai prior to Octo­ber 7, 1972;
9.—The microfilms of the documents seized at 3459 St. Hubert in Montreal during the night of Octo­ber 6 to 7, 1972;
10.—The files on the Mouvement pour la défense des prisonniers politiques du Québec, the Agence de presse libre du Québec and the Coopérative de déménagement du 1er mai, as given to Messrs. Robert Samson and Guy Bonsant when they were assigned to these movements;
11.—All photographs and all negatives of photographs taken by a member of the R.C.M.P. during the night of October 6 to 7, 1972, and while the documents seized at the residence of Mr. Jean-Claude Brodeur were being examined;
12. All written correspondence or written reports of oral communication between January 1, 1972 and September 28, 1977:
—among the various police forces;
—within these same police forces;
—with the Quebec Department of Justice;
—or with the Solicitor General of Canada;
16.—The originals of all files or documents concerning the following subjects:
(a) The allegations concerning break and entry into the home of Louise Vandelac on October 24, 1972;
(b) The allegations concerning the theft of Louise Vandelac's handbag at her residence during the night of October 25, 1972;
(c) The interrogation of a member of the Agence de presse libre du Québec who used Louise Vandelac's motorcycle between October and December 1972;
(d) The use and discovery of microphones at 2074 Beaudry Street, in Montreal (November 1973);
17.—All instruction manuals as well as all written instructions, administrative policies and docu­ments in effect during October 1972, and any amendments, concerning:
(a) all rules respecting the operation of the R.C.M.P.'s Security Service; (b) The opening, keeping, disposal and/or des­truction of any file, document or daily note-book for members of the R.C.M.P.;
(c) The conducting of all police operations, including investigations, searches, electronic eavesdropping, shadowing, surveillance and so on;
(d) The rules of ethics of the members of the R.C.M.P.;
(e) The pattern of authority among the members of different levels of the R.C.M.P.;
(f) List of all cases where reports must be made by members to their superiors;
(g) List of all cases where an authorization is required by superior officers;
(h) The functioning of a joint operation among different police forces, particularly in the case of operations taking place on the territory of the Montreal Urban Community where the R.C.M.P., the Quebec Police Force and the Montreal Urban Community Police Department are all involved at the same time;
(i) The operation of internal communications, including the operation of the Telex system;
II—The originals of any files or documents, not specifically mentioned in this request, but which you believe would be useful for the work of the Commission under its mandate, and in particular any documents in any file whatsoever that might reveal the existence [and] use of methods similar to those that are the subject of this investigation and/or that might reveal the frequency of use of such similar methods.
On November 11, a further subpoena was served upon the Solicitor General with an amended list of documents which I do not find necessary to cite. There were also, within a few days, further subpoenas covering the three following lists:
[TRANSLATION]
I—The original of a memorandum to which the Prime Minister of Canada, Mr. Trudeau, referred on June 2, 1977 in a statement in the House of Commons (Hansard, pages 6207-6208);
II—Concerning an investigation known to have begun on or about June 1, 1977 under the direction of Messrs. Nowlan and/or Quintal and/or other persons: all reports, including the files and documents appended, prepared for one or more of these persons, or any other person, concerning allegations of acts said to be illegal or reprehensible and committed within the territory of Quebec;
III—All files and documents concerning the setting fire to a farm known as "Petit Québec Libre" in Sainte-Anne-de-la-Rochelle on May 9, 1972 as well as all files and documents concerning a theft of dynamite in Rougemont in the spring of 1972.
Regarding the electronic eavesdropping carried out at 3459 St. Hubert Street in Montreal:
1.—A written authorization or a written report of an oral authorization given by Mr. Jean-Pierre Goyer to Mr. John Starnes and/or other persons, on or about November 3, 1972;
2.—Any other written authorizations or any other written reports of oral authorizations given by Mr. Jean-Pierre Goyer to Mr. John Starnes and/or other persons.
I—The originals of all files or documents in your possession prepared by the R.C.M.P., the Quebec Police Force or the Montreal Urban Community Police Department, or any other person, on the following subjects or events mentioned in a letter dated May 28, 1976 from Commissioner M. J. Nadon to the Hon. Warren Allmand, Solicitor General of Canada, and forwarded by the latter on May 31, 1976 to the Hon. Fernand Lalonde, Solicitor General of Quebec, to wit:
1.— "In January 1970, Daniel COHN-BENDIT, a revolutionary known around the world, arrived in Montreal, where he stayed with a former F.L.Q. member, Bernard MATAIGNE."
2.— "In June of the same year, two (2) Quebec terrorists were trained in a guerilla camp in Jordan to act as assassins once they returned to Quebec."
3.— "In October 1970, James Richard CROSS and Pierre LAPORTE were kidnapped and the latter was subsequently assassinated. In the first communiqué from the Liberation Cell, the F.L.Q. demanded the release of the terrorists in prison (political prisoners)." 4.— "During the same period searches revealed that Pierre VALLIERES, one of the ideological leaders of the F.L.Q., had sent a letter to Jacques LARUE LANGLOIS on June 26, 1968, advising him to proceed with the kidnapping of political figures. Later VAL­LIERES admitted he was guilty of this criminal offence with which he was charged."
5.— "Toward the end of 1971 the latter stayed in hiding to avoid being charged with sedition. After four (4) months he came out of hiding, stating that "in theory" the violent actions of guerillas were ineffective and reckless."
6.— "On February 9, 1972, 90 sticks of dynamite were found in a room in the Laurentian Hotel in Montreal."
7.— "In May 1972 the Montreal Urban Commu­nity Police Department arrested Christian LEGUERRI­ER, who confessed at that time that a group was making plans, giving rise to the suspicion that there might be selective assassinations and kidnappings (and in particu­lar your file D-928-2372 and a report dated May 31, 1972)."
8.— "On September 19, 1972 the R.C.M.P. informed the Solicitor General of Canada that Marcel GUERIN, Donald LACOSTE, Hélène LACASSE, Jacques BEAULNE and Jean-Luc ARENE were plan­ning to commit criminal acts with a view to obtaining the release of the alleged political prisoners (and in particular, your file D-909-2-D-6 and the report dated September 19, 1972)."
9.— "On September 26, 1972 Jacques BEAULNE, André BEAULNE, Pierre DORAIS, Donald McINNES, Renald LEVESQUE, Roger VINCENT, D'Arcy ARCHAMBAULT and André LAFOND were preparing an airplane hijacking, for the same purpose (and in particular, your file D-926-113-D-1-3 and a report dated September 26, 1972)."
II—The files and documents on "DISRUPTIVE TACTICS", and in particular those classified in file D-938-Q-25.
The Solicitor General's affidavit
The affidavit submitted to the Commissioner by the Solicitor General in its final form under date October 13, 1977 included the following state­ments:
[TRANSLATION] 3. I have taken cognizance of a subpoena addressed to me as Solicitor General of Canada by the Commissioner of the said Commission and dated September 28, 1977. 4. The said subpoena, as amended by an oral order of the Commissioner dated October 6, 1977, requires inter alla the files or documents of the R.C.M.P. concerning an operation known as "Opération Bricole", and requires in particular the production of the following files and documents:
(a) All analysis reports on the Mouvement pour la défense des prisonniers politiques du Québec, the Agence de presse libre du Québec and the Coopéra­tive de déménagement du 1" mai from January 1, 1972 to September 28, 1977;
(b) All reports on technical projects (electronic eaves-dropping) concerning the Mouvement pour la défense des prisonniers politiques du Québec, the Agence de presse libre du Québec and the Coopérative de démé­nagement from January 1, 1972 to September 28, 1977;
(c) The files on the Mouvement pour la défense des prisonniers politiques du Québec, the Agence de presse libre du Québec and the Coopérative de démé­nagement du 1er mai, as given to Messrs. Robert Samson and Guy Bonsant when they were assigned to these movements;
(d) The originals of all files or documents concerning the following subjects:
(i) The allegations concerning break and entry into the home of Louise Vandelac on October 24, 1972;
(ii) The allegations concerning the theft of Louise Vandelac's handbag at her residence during the night of October 25, 1972;
(iii) The interrogation of a member of the Agence de presse libre du Québec who used Louise Van­delac's motorcycle between October and December 1972;
(iv) The use and discovery of microphones at 2074 Beaudry Street, in Montreal (November 1973).
5. Before receiving the said subpoena I had already, through my solicitors, produced before the Commission the R.C.M.P. files entitled "Opération Bricole", except for certain documents contained in a list attached hereto as Appendix 1.
6. I have examined the R.C.M.P. files entitled "Opéra­tion Bricole" and the documents mentioned in the Appendix to this affidavit.
7. I have further examined the R.C.M.P. files and documents relating to the documents mentioned in sub-paragraphs (c) and (d)(i), (ii), (iii) and (iv) of paragraph 4 of this affidavit. I have also examined the R.C.M.P. files and documents relating to the documents mentioned in subparagraphs (a) and (b) of paragraph 4 of this affidavit for the period from January 1, 1972 to September 28, 1977.
8. I know and in fact believe that the documents and files mentioned in paragraph 7 above and in the attached Appendix were prepared and are kept in the strictest secrecy, as part of current and ongoing investi­gations in all regions of Canada into matters of extreme importance for national security.
9. To allow any of the documents mentioned in paragraph 7 and the attached Appendix to be produced, or the contents of any one of them to be disclosed in testimony, would seriously jeopardize the effectiveness of the current and ongoing investigations being carried out by the R.C.M.P.'s Security Service, and might thwart the operations being conducted by the R.C.M.P.'s Security Service in accordance with the mandate it has been given by the Government of Canada.
10. In particular, production of the documents men­tioned in paragraph 7 and the attached Appendix, or disclosure of their contents, would reveal quite specifi­cally certain sources of information, certain methods of collecting information, the personnel involved in investi­gations and the scope of these investigations, and this could only have consequences injurious to these investi­gations, which the Government of Canada decided were necessary in the interest of national security.
11. For all these reasons I am of the opinion, and I certify under s. 41(2) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, that the production or discov­ery of the files and documents mentioned in paragraph 7 of this affidavit and the attached Appendix, or any one of them, would be injurious to national security.
12. I therefore object to the production of these files and documents and the disclosure of their contents by a member of the R.C.M.P., or by any person having one of these documents in his possession either lawfully or unlawfully or having had access to them on occasion, or as the result of an exchange of information between the R.C.M.P. and the various police forces, including the Quebec Police Force and the Montreal Urban Commu­nity Police Department.
The Commissioner's orders
The conclusions of the decision given by the Commissioner on October 18, 1977 after considering the affidavit and the submissions of counsel for the Solicitor General were as follows (numbers added for convenience as agreed at the hearing):
[TRANSLATION] The Commission:
1. CONSIDERS that it is a court within the meaning of s. 41(2) of the Federal Court Act with regard to present and former members of the R.C.M.P., employees and former employees of the Government of Canada and federal government politicians;
2. CONSIDERS that it is not a court with regard to all its other witnesses; an affidavit from the Solicitor Gen­eral of Canada under s. 41(2) is not effective against it in such cases;
3. REJECTS affidavits P-6 and P-7 as not being in accordance with the Act;
4. ACCEPTS affidavit P-40 as regards the R.C.M.P. files and documents that were not produced before the Commission by the R.C.M.P., the Quebec Police Force or the Montreal Urban Community Police Department; the same applies to the contents of Appendix 1 of affidavit P-40; it will refuse discovery and production without any examination of the documents;
5. AUTHORIZES counsel for the Solicitor General to be present, solely for the purpose of helping the Com­mission fulfill its obligation arising from the filing of affidavit P-40 during the in camera hearings at which evidence will be given by present and former members of the R.C.M.P., employees and former employees of the Government of Canada and federal government politicians;
6. ACKNOWLEDGES that counsel for the Solicitor General of Canada have the same rights as any counsel appearing before it during public hearings;
7. REJECTS, even assuming that it constitutes a court with regard to all its witnesses—an assumption which is denied—, those parts of affidavit P-40 concerning non-production and non-disclosure of:
—the R.C.M.P. files and documents produced before the Commission by the Q.P.F. or the M.U.C.P.D. and marked as follows: "This document is the property of the Government of Canada. It must be classified as a SECRET document and its contents may not be circulated in whole or in part without the author's prior consent";
—the R.C.M.P. files and documents sent to the Q.P.F. or the M.U.C.P.D. that were produced before the Commission by the Q.P.F. or the M.U.C.P.D. and not marked as being the property of the Government of Canada;
—the telexes of reports on the electronic eavesdropping carried out by the R.C.M.P. at 3459 St. Hubert Street in Montreal that were sent to the M.U.C.P.D. and produced before the Commission by the M.U.C.P.D.;
—certain parts of a document prepared by Mr. Fernand Tanguay of the M.U.C.P.D. that was filed before the Commision as Exhibit P-38;
—the analysis reports on the documentation seized from the M.D.P.P.Q., the A.P.L.Q. and the Coopérative de déménagement du 1er mai, prepared during the months following the search and produced before the Commission;
—certain documents referred to in affidavit P-40 as reports on technical projects (electronic eavesdropping) produced before the Commission by the M.U.C.P.D. as Exhibit H-15 and made public as P-34 and P-35;
8. INVITES the representatives of the Solicitor Gener­al of Canada to make the representations they consider appropriate under article 3.2 of the Commission's rules of practice and procedure.
The conclusions of the motion for a writ of evocation take exception to paragraphs 2, 5 and 7 of the above conclusions. They also challenge in its entirety a further decision of the Commissioner issued November 1st, 1977 in the following terms:
[TRANSLATION] On October 20, 1977 one of the Commission's counsel, Mr. Michel Décary, asked Mr. Claude Brodeur, a member of the R.C.M.P., the follow­ing question:
"Were you aware that members under your authority, your command, participated in illegal operations or activities?" (October 20, 1977, volume 29, p. 18)
Various representations having been made, the Com­mission decided to suspend the examination of Mr. Brodeur and to make a final ruling on the objection on November 1, 1977.
The evidence adduced in The Queen v. Coutellier, Beaudry & Cobb, which the Commission examined with the authorization of the Attorney General of Quebec, and that gathered by the Commission itself, indicate:
(A) That the witness was personally involved in the circumstances surrounding the search made during the night of October 6 to 7, 1972 at 3459 St. Hubert Street in Montreal; (B) That the witness was personally involved in cer­tain previous or subsequent events that might be related to the circumstances surrounding the search or the search itself;
(C) That consequently the Commission must examine his behaviour as a person involved in the search or in a previous or subsequent event that might be related to the circumstances of the search or to the search itself.
It should be mentioned that among the specific points which the Commission is to investigate and report on, the Lieutenant-Governor in Council specifically men­tioned:
"The methods used during this search and the fre­quency of their use".
The word "method" means "way of acting with regard to someone else" and refers to behaviour, conduct, manner of acting or method to be followed to obtain a result.
The evidence already reveals some of the methods used during the search carried out at 3459 St. Hubert Street in Montreal, but our inquiry should not stop there. What is at the very heart of the methods used, and characterizes the entire operation or the conduct of the police in this matter, is the fact that the police acted illegally.
The question asked is aimed directly at ascertaining the existence and frequency of use of the illegal methods employed on other occasions and the