Starr v. Houlden

Starr v. Houlden
Collection
Supreme Court Judgments
Date
1990-04-05
Report
[1990] 1 SCR 1366
Case number
21777
Judges
Dickson, Robert George Brian; Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 21777
Decision Content
Starr v. Houlden, [1990] 1 S.C.R. 1366
Patricia Starr, Tridel Corporation Inc.,
Mario Giampietri and Gordon Ashworth Appellants
v.
The Honourable Mr. Justice Lloyd W. Houlden,
Commissioner and the Government of Ontario Respondents
indexed as: starr v. houlden
File No.: 21777.
1990: March 8; 1990: April 5.
Present: Dickson C.J. and Lamer, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Division of powers ‑‑ Criminal law ‑‑ Provincial inquiry into allegations of political corruption ‑‑ Terms of reference naming specific private individuals ‑‑ Terms strikingly similar to Criminal Code provision but expressly prohibiting finding of criminal wrongdoing ‑‑ Whether or not inquiry as framed falling within federal criminal law power ‑‑ Constitution Act, 1867, s. 91(27) ‑‑ Public Inquiries Act, R.S.O. 1980, c. 411.
Constitutional law ‑‑ Charter of Rights ‑‑ Legal rights ‑‑ Provincial inquiry into allegations of political corruption ‑‑ Terms of reference naming specific private individuals ‑‑ Terms strikingly similar to Criminal Code provision but expressly prohibiting finding of criminal wrongdoing ‑‑ Whether or not infringement of ss. 7 to 14 of the Charter ‑‑ If so, whether or not infringement justified under s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 .
Allegations were made in the press that Starr, the President of a section of a registered charity, had made contributions from the charity's funds to political parties and that there was an association between her and Tridel Corporation Inc. Allegations about the relationship between Starr and various public officials, elected and unelected, mounted in the media and in the Legislative Assembly. Ashworth, the Executive Director of the Premier's Office, resigned his position after revealing that Starr had arranged for his family to receive personal benefits at no cost to himself. The province instituted a number of investigations.
A commission of inquiry was appointed pursuant to the Public Inquiries Act to inquire into the facts surrounding the relationships between Starr, any person or corporation she may have acted for, including Tridel Corporation Inc., and any elected and appointed officials, including Ashworth. The appellants' requested the Commissioner to state a case dealing with the competence of the province to establish the inquiry and its potential effects on individual rights at common law and under the Canadian Charter of Rights and Freedoms . When that application was dismissed, they applied to the Divisional Court to direct the Commissioner to state a case. That court heard the application, determined the case on its merits, and dismissed the application. The Court of Appeal dismissed an appeal from that decision. Three constitutional questions queried: (1) whether the inquiry's terms of reference fell within Parliament's criminal law power; (2) whether it infringed the Charter 's legal rights (ss. 7 to 14 ); and (3) if so, whether the inquiry was justified under s. 1 . The appellants raised two additional issues. Firstly, did the terms of reference violate the principles enunciated by the Court of Appeal in Re Nelles and Grange because they required the Commissioner to investigate the conduct of named persons as to their civil or criminal responsibility while expressly prohibiting him from expressing any conclusions regarding their civil or criminal responsibility? And secondly, if the Order in Council was constitutional, could the inquiry proceed in the face of the ongoing police investigation, and if so, what procedure was mandated by the Order in Council and the necessity not to interfere with the rights guaranteed by the Charter ?
Held (L'Heureux‑Dubé J. dissenting): The appeal should be allowed. The first constitutional question should be answered in the affirmative; it was not necessary to pronounce on the other constitutional questions or issues.
Per Dickson C.J. and Lamer, La Forest, Sopinka, Gonthier and Cory JJ.: The inquiry's terms of reference exceeded the province's jurisdiction. The inquiry in effect served as a substitute police investigation and preliminary inquiry with compellable accused in respect of s. 121 of the Criminal Code and was in pith and substance a matter falling within Parliament's exclusive criminal law power.
The inquiry's terms of reference envisaged a two‑step process that eventually narrows its scope. Firstly, the Commissioner had a broad mandate to locate and identify the dealings between Starr and Tridel Corporation Inc. and elected and unelected public officials. Secondly, he was to inquire into and report upon those dealings indicating whether a benefit was conferred upon an elected or unelected public official. Only Starr and Tridel Corporation Inc. were named in the terms of reference; no public officials were named.
The inquiry process cannot be used to circumvent the federally prescribed criminal procedure. It is coercive and quite incompatible with our notion of justice in the investigation of a particular crime and the determination of actual or probable criminal or civil responsibility.
The pith and substance of a provincial commission must be firmly anchored to a provincial head of power and cannot be used, either purposely or through its effect, as a means to investigate and determine the criminal responsibility of specific individuals for specific offences.
In pith and substance, this inquiry was a substitute police investigation and preliminary inquiry into an offence alleged to have been committed by one or both of the named individuals. Its terms of reference named private individuals using language virtually indistinguishable from the parallel Criminal Code provision and the Commissioner's findings would, in effect, establish a prima facie case against the named individuals. Investigation of public officials would be incidental to the main focus of the Commissioner's mandate because it was defined in terms of whether they had dealings with Starr or Tridel Corporation Inc.
No broader policy objective was present to distinguish this inquiry from a substitute police investigation. The terms of reference made no mention of an examination of the overall system governing how government officials deal with charities specifically, or with respect to outside interests generally. Indeed, although public officials are within the scope of the inquiry, the investigation of them depends upon whether they have had dealings with the named individuals, neither of whom are public officials.
This inquiry is not anchored in s. 92(4) , (7) , (13) or (16) of the Constitution Act, 1867 . Neither the terms of reference nor the background facts leading up to the inquiry indicate that the inquiry was designed to restore confidence in the integrity and institutions of government or to review the regime governing the conduct of public officials. Any such objectives were clearly incidental to the central feature of the inquiry, which was the investigation and the making of findings of fact in respect of named individuals in relation to a specific criminal offence.
The Commissioner, while specifically prevented from making a determination of criminal responsibility, could nevertheless do so by implication. A finding of intent, once the findings of fact are made regarding the existence of dealings and benefits, is almost an irresistible inference. It is a reasonable inference that persons can be presumed to have intended the natural consequences of their acts. The Commissioner need not make findings of guilt in the true sense of the word for the inquiry to be ultra vires the province. It suffices if the inquiry is in effect a substitute police investigation and preliminary inquiry into a specific allegation of criminal conduct by named, private citizens. The investigation the Commissioner is asked to undertake, and the findings of fact he will make as a result of his investigation, place him in a similar position as a judge conducting a preliminary inquiry under s. 535 of the Criminal Code . In essence the inquiry is entering into the preliminary stages of the judicial criminal process by taking evidence, determining its sufficiency and ultimately deciding whether a prima facie case exists against either or both Starr and Tridel Corporation Inc.
Per L'Heureux‑Dubé J. (dissenting): The constitutional validity of the inquiry, from a division of powers standpoint, was not displaced by the facts that two private individuals were named, that there was a striking resemblance between the terms of reference and s. 121(1) (b) of the Criminal Code , and that a police investigation was being conducted concurrently with it. This conclusion is urged by the context in which this inquiry was ordered and its scope, the terms of the Order in Council, and the previous decisions of this Court.
The profound concern about alleged improprieties against government officials and employees extended far beyond the appellants and provided the necessary framework of the commission's mandate.
Both the legislation under which the commission was authorized and the Order in Council itself are intra vires the province. Four separate heads of power anchor the provincial interest: (1) s. 92(4) : the establishment and tenure of provincial offices and the appointment of provincial officers; (2) s. 92(7) : the establishment, maintenance, and management of charities; (3) s. 92(14): the administration of justice within the province; and (4) s. 92(16) matters of a merely local or private nature in the province. No head of power, however, supports a federal inquiry to investigate the conduct of provincial government officials.
The commission's terms of reference are broad and encompass a great number of individuals, corporations, and public officials. The wording, which is standard for commissions of inquiry, neither refers to nor duplicates the Criminal Code or any other federal statute. Reference to specific individuals only provides a necessary frame of reference so that the commission can properly define its function. The sole fact that individuals are named cannot render the Order in Council constitutionally infirm.
The terms of reference do not invade the federal criminal law power, notwithstanding its similarities to s. 121 of the Criminal Code . Indeed any resemblance is immaterial. Section 121 serves as a prohibition carrying potential penal consequences. The terms of reference serve only to define the scope of an investigation which is expressly prohibited from making criminal findings. An otherwise constitutional provincial inquiry cannot be barred absolutely by the possibility of subsequent prosecution.
Functional and practical differences exist between commissions of inquiry and the criminal law processes of preliminary inquiries or laying of informations. The latter are clearly incidental to criminal prosecution. Specific individuals are targeted for the express and exclusive purpose of indicting them. Commissions of inquiry perform a different role. They may, as here, name an individual for the purposes of identifying the general investigative objective of the inquiry and of defining its scope.
Regardless of how closely the terms of reference parallel s. 121 of the Criminal Code , it is the purpose and effect rather than the strict enabling language of the commission that must be considered. The powers conferred upon this commission do not carry penal consequences. The fear of provincial incursion into a strictly federal sphere never comes into play here.
Several aspects of the inquiry, such as the naming of individuals, the use of language resembling a Criminal Code provision, or a concurrent police investigation, are all independently intra vires. "Stacking" them to define the scope of the inquiry does not amount to an invasion of the criminal law power. Such a principle of superimposition does not exist and, even if it did, would not properly apply to commissions of inquiry. More is required in order to affix the label of unconstitutionality to an otherwise intra vires proceeding. Here nothing short of a criminal investigation would do, and that is not what this inquiry is all about.
The remote and latent risk of "colourability" should not impede legitimate provincial objectives. The task of complying with the prohibition against drawing conclusions as to responsibility, criminal or civil, is not impossible. The presumption ought to be in favour of validity.
This commission is not a substitute police investigation and preliminary inquiry into a specific allegation of criminal conduct by named, private citizens; the coercive component is entirely different and there is no threat of incarceration. There is no lis between the state and accused persons; there are no accused. Indeed, the only thing that this commission of inquiry is definitively prohibited from doing is expressing any conclusion of law regarding the civil or criminal responsibility of any individual or organization.
The constitutionality of this inquiry is supported by the case law. Functionally, the Houlden Commission is indistinguishable from those commissions that withstood constitutional attack in R. v. Faber, Di Iorio v. Warden of the Montreal Jail, Attorney General (Que.) and Keable v. Attorney General (Can.), and O'Hara v. British Columbia. The semantic arguments used to distinguish the present case from this Court's precedents are not sufficient to displace the presumption of constitutional validity.
The combination of the internal limitations on the inquiry's scope and existing procedural safeguards designed to preserve fundamental justice ensures that the Canadian Charter of Rights and Freedoms has not been infringed.
Any challenge based on ss. 7 , 11 and 13 of the Charter is inapposite because of the non‑trial nature of the inquiry.
The right to life, liberty, and security of the person is not infringed in a manner contrary to fundamental justice for much the same reason that the commission is intra vires the province. The alleged infringement of s. 7 cannot be sustained as the commission is solely a recommendatory and not an adjudicative body. Determinations as to guilt or innocence, or civil or criminal liability, are specifically excluded from its functional description. Any prospective threat to liberty, therefore, is purely speculative. Given compliance with the principles of fundamental justice, the rights set out in s. 7 of the Charter would be unduly extended if state‑linked stress, anxiety, or threat to reputation were found to violate the security of the person when an individual is not charged or accused.
Section 11 (c) of the Charter preserves the non‑compellability of an accused, while the other use‑immunity provisions prevent testimony compelled in any proceedings from being used to incriminate the witness in any subsequent civil or criminal proceedings. The invocation of these protective provisions is premature. The mere fact that some subsequent criminal proceeding may take place is far too fragile a hook on which to hang a Charter violation.
Cases Cited
By Lamer J.
Considered: Re Nelles and Grange (1984), 46 O.R. (2d) 210; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Attorney General (Que.) and Keable v. Attorney General (Can.), [1979] 1 S.C.R. 218; O'Hara v. British Columbia, [1987] 2 S.C.R. 591; Faber v. The Queen, [1976] 2 S.C.R. 9; R. v. Hoffmann‑La Roche Ltd. (1981), 33 O.R. (2d) 694; Cock v. Attorney-General (1909), 28 N.Z.L.R. 405; referred to: Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; Attorney-General for Alberta v. Attorney-General for Canada (Alberta Bank Taxation Reference), [1939] A.C. 117; R. v. Cooper, [1978] 1 S.C.R. 860; R. v. Brown (1956), 116 C.C.C. 287; United States of America v. Shephard, [1977] 2 S.C.R. 1067.
By L'Heureux‑Dubé J. (dissenting)
Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Re Nelles and Grange (1984), 46 O.R. (2d) 210; Re Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (1978), 94 D.L.R. (3d) 365; Faber v. The Queen, [1976] 2 S.C.R. 9; Attorney General (Que.) and Keable v. Attorney General (Can.), [1979] 1 S.C.R. 218; R. v. Vermette, [1988] 1 S.C.R. 985; O'Hara v. British Columbia, [1987] 2 S.C.R. 591; R. v. Nixon, British Columbia Supreme Court, October 6, 1989, Vancouver No. CC890587; R. v. Hoffmann‑La Roche Ltd. (1981), 33 O.R. (2d) 694; R. v. Amway Corp., [1989] 1 S.C.R. 21; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Lyons, [1987] 2 S.C.R. 309.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C., 1985, c. C-5, s. 5(2) .
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 9 , 10 , 11 (c), (d), 12 , 13 , 14 .
Constitution Act, 1867, ss. 91(27) , 92(4) , (7) , (13) , (14) , (16) .
Criminal Code, R.S.C., 1985, c. C‑46, ss. 119 , 121 , 535 , 548 .
Election Finances Reform Act, R.S.O. 1980, c. 134.
Members' Conflict of Interest Act, 1988, S.O. 1988, c. 17, s. 14.
Public Inquiries Act, R.S.O. 1980, c. 411, ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11.
Authors Cited
Canada. Law Reform Commission. Report 13. Report on Advisory and Investigatory Commissions. Ottawa: Law Reform Commission, 1979.
Canada. Law Reform Commission. Working Paper 17. Administrative Law: Commissions of Inquiry. Ottawa: Law Reform Commission, 1977.
Christie, Innis and Paul Pross. Introduction to Commissions of Inquiry. Toronto: Carswells, 1990.
Grange, Samuel. "How Should Lawyers and the Legal Profession Adapt?" (1990), 12 Dal. L.J. 151.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Le Dain, Gerald E. "The Role of the Public Inquiry in our Constitutional System", in Jacob S. Ziegel (ed.), Law and Social Change. Toronto: Osgoode Hall Law School/York University, 1973.
Lockwood, Thomas J. "A History of Royal Commissions" (1967), 5 Osgoode Hall L. J. 172.
Macdonald, R. A. "The Commission of Inquiry in the Perspective of Administrative Law" (1980), 18 Alta. L. Rev. 366.
MacKay, A. Wayne. "Mandates, Legal Foundations, Powers and Conduct of Commissions of Inquiry" (1990), 12 Dal. L.J. 29.
Maillet, Lise. Provincial Royal Commissions and Commissions of Inquiry, 1867‑1982: A Selective Bibliography. Ottawa: National Library of Canada, 1986.
Ontario. Legislative Assembly of Ontario. Hansard. Official Report of Debates. Second Session, 34th Parliament. Toronto: Legislative Assembly of Ontario, 1989.
Sellar, Watson. "A Century of Commissions of Inquiry" (1947), 25 Can. Bar Rev. 1.
APPEAL from a judgment of the Ontario Court of Appeal (1990), 71 O.R. (2d) 161, 64 D.L.R. (4th) 285, dismissing an appeal from a judgment of the Divisional Court (1989), 70 O.R. (2d) 408, 62 D.L.R. (4th) 702. Appeal allowed, L'Heureux‑Dubé J. dissenting.
A. M. Cooper, Q.C., and Peter West, for the appellant Patricia Starr.
Earl A. Cherniak, Q.C., Mary Anne Sanderson and Martin I. Applebaum, Q.C., for the appellant Tridel Corporation Inc.
Alan D. Gold, for the appellant Mario Giampietri.
Gina S. Brannan, for the appellant Gordon Ashworth.
John W. Brown, Q.C., Kathryn N. Feldman and J. A. Prestage, for the respondent The Honourable Mr. Justice Lloyd W. Houlden, Commissioner.
Dennis R. O'Connor, Q.C., and Freya J. Kristjanson, for the respondent the Government of Ontario.
//Lamer J.//
The judgment of Dickson C.J. and Lamer, La Forest, Sopinka, Gonthier and Cory JJ. was delivered by
LAMER J. --
I. Facts
This appeal raises constitutional issues dealing with both the division of powers between the federal and provincial levels of government and with the rights of individuals under the Canadian Charter of Rights and Freedoms in the context of a public inquiry established by the province of Ontario.
Patricia Starr was the President and Chairperson of the Board of the Toronto section of the National Council of Jewish Women in Canada, a registered charitable organization. A number of newspaper articles, specifically one appearing in the Globe & Mail on February 15, 1989, alleged that Ms. Starr made contributions from the coffers of the charity to political parties. The article also referred to an association between Ms. Starr and Tridel Corporation Inc., a real estate development corporation. Allegations and speculation about the relationship between Ms. Starr, the charity and various public officials, elected and unelected, continued to mount both in the media and in the Legislative Assembly. As a result, a number of investigations were instituted by the province, including ones by the Commission on Election Finances to look into possible breaches of the Election Finances Reform Act, R.S.O. 1980, c. 134, the Conflict of Interest Commissioner to look into conflicts of interest regarding members of the Legislature and one by the Ontario Provincial Police into possible breaches of the criminal law or any other provincial statute. These were announced by the Attorney General, as acting Solicitor General, on June 12, 1989.
On June 22, 1989, Gordon Ashworth, the Executive Director of the Premier's Office, resigned his position after revealing that in September of 1987 Ms. Starr had arranged for his family to receive a new refrigerator and to have their house painted at no cost to himself. The next day, June 23, 1989, the Premier announced that he ordered a public inquiry into the facts surrounding the relationships between Patricia Starr, any person or corporation she may have acted for, including Tridel, and any elected and appointed officials, including Gordon Ashworth. I quote the following excerpts from the Premier's statement on that day:
The recent allegations are deeply disturbing and profoundly worrisome. I am very troubled by this situation and I think that it is essential that there be an immediate and independent public inquiry to get to the bottom of it.
I am determined that in the carrying out of this inquiry, that no stone be left unturned, that every lead be followed up on, that every allegation be thoroughly and exhaustively investigated until all of the facts have been laid bare before us. . . .
Nothing is more important than the public trust. I will do everything in my power to ensure that it is protected.
I believe very strongly that the democratic system depends on the public's trust and faith in the integrity of their public officials. . . .
Most importantly, public officials must be open to public scrutiny, and in doing so must be found to be beyond reproach, and acting in accordance with the highest ethical standards.
I am confident that this judicial inquiry will uncover those who have not functioned in this manner.
I give you my personal assurance that those whose performance has been found wanting will be discovered, those who have erred will be punished, and those who have broken the law will be prosecuted.
By Order in Council dated July 6, 1989, a commission of inquiry was appointed pursuant to the Public Inquiries Act, R.S.O. 1980, c. 411. The Order in Council provided for the appointment of the Honourable Mr. Justice Lloyd W. Houlden as Commissioner under the following terms of reference:
WHEREAS by an Act entitled the Public Inquiries Act, R.S.O. 1980, Chapter 411, it is enacted that whenever the Lieutenant Governor in Council considers it expedient to cause inquiry to be made concerning any matter that he declares to be of public concern and such inquiry is not regulated by any special law, he may, by commission appoint one or more persons to conduct such inquiry and may confer the power of summoning any person and requiring him or her to give evidence [under] oath and to produce such documents and things as the Commissioner or Commissioners deems requisite for the full investigation of the matters into which he or they are appointed to examine;
AND WHEREAS the Lieutenant Governor in Council considers it expedient to cause inquiry to be made into the matter hereinafter set out which he declares to be of public concern;
AND THEREFORE, pursuant to the said Public Inquiries Act, R.S.O. 1980, Chapter 411, a Commission be issued appointing the Honourable Justice Lloyd W. Houlden who is, without expressing any conclusion of law regarding the civil or criminal responsibility of any individual or organization:
1)to investigate:
(i)the nature and extent of the dealings between Patricia Starr and elected and unelected public officials;
(ii)the nature and extent of the dealings between Patricia Starr and private individuals, corporations, unincorporated bodies and charities in relation to elected and unelected public officials;
(iii)the nature and extent of the dealings between Tridel Corporation; companies related to Tridel Corporation; representatives, officers, employees or officials of Tridel Corporation; representatives, officers, employees or officials of companies related to Tridel Corporation, and elected and unelected public officials;
(iv)the nature and extent of the dealings between Tridel Corporation; companies related to Tridel Corporation; representatives, officers, employees or officials of Tridel Corporation; representatives, officers, employees or officials of companies related to Tridel Corporation and private individuals, corporations, unincorporated bodies and charities in relation to elected and unelected public officials.
2)to inquire into and report upon any such circumstances or dealings where, in the opinion of the Commissioner, there is sufficient evidence that a benefit, advantage or reward of any kind was conferred upon an elected or unelected public official or upon any member of the family of any elected or unelected public official, or where, in the opinion of the Commissioner, there is sufficient evidence that there was [an] agreement or attempt to confer a benefit, advantage or reward of any kind upon an elected or unelected public official or upon any member of the family of an elected or unelected public official.
AND THAT nothing set out above shall be taken as in any way limiting the right of the Commissioner to petition the Lieutenant Governor in Council to expand the terms of reference to cover any matter that he may deem necessary as a result of information coming to his attention during the course of the investigation or inquiry,
AND THAT all Government Ministries, Boards, Agencies and Commissions shall assist the Commissioner to the fullest extent in order that he may carry out his duties and functions, and that he shall have authority to engage such counsel, investigators and other staff as he deems it proper at rates of remuneration and reimbursement to be approved by the Management Board of Cabinet in order that a complete and comprehensive report may be prepared and submitted to the Government,
AND THAT the Ministry of the Attorney General will be responsible for providing administrative support to the Inquiry,
AND THAT Part III of the said Public Inquiries Act be declared to apply to the aforementioned Inquiry.
The inquiry started on September 18, 1989. An application by Rogers Cable Television to broadcast the proceedings in their entirety was granted, although it was opposed by the appellants. After an opening statement by the Commissioner, he was asked, but refused, to state a case dealing with the competence of the province to establish the inquiry and its potential effects on individual rights at common law and under the Charter . The Divisional Court of Ontario was asked by the appellants, pursuant to s. 6 of the Public Inquiries Act, to direct the Commissioner to state a case. The Divisional Court heard the application and determined the case on its merits, dismissing the application. Leave to appeal was granted by the Court of Appeal for Ontario. The Commissioner stayed the proceedings of the inquiry after leave to appeal to the Court of Appeal was granted. The Court of Appeal dismissed the appeal. Leave to appeal was granted by this Court on January 26, 1990.
II. Legislation
Public Inquiries Act, R.S.O. 1980, c. 411, ss. 1 to 11
1. In this Act,
(a)"commission" means the one or more persons appointed to conduct an inquiry under this Act;
(b) "inquiry" means an inquiry under this Act.
PART I
2. Whenever the Lieutenant Governor in Council considers it expedient to cause inquiry to be made concerning any matter connected with or affecting the good government of Ontario or the conduct of any part of the public business thereof or of the administration of justice therein or that he declares to be a matter of public concern and the inquiry is not regulated by any special law, he may, by commission, appoint one or more persons to conduct the inquiry.
3. Subject to sections 4 and 5, the conduct of and the procedure to be followed on an inquiry is under the control and direction of the commission conducting the inquiry.
4. All hearings on an inquiry are open to the public except where the commission conducting the inquiry is of the opinion that,
(a)matters involving public security may be disclosed at the hearing; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing that are of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public,
in which case the commission may hold the hearing concerning any such matters in camera.
5.--(1) A commission shall accord to any person who satisfies it that he has a substantial and direct interest in the subject-matter of its inquiry an opportunity during the inquiry to give evidence and to call and examine or to cross-examine witnesses personally or by his counsel on evidence relevant to his interest.
(2) No finding of misconduct on the part of any person shall be made against him in any report of a commission after such an inquiry unless that person had reasonable notice of the substance of the misconduct alleged against him and was allowed full opportunity during the inquiry to be heard in person or by counsel.
6.--(1) Where the authority to appoint a commission under this Act or the authority of a commission to do any act or thing proposed to be done or done by the commission in the course of its inquiry is called into question by a person affected, the commission may of its own motion or upon the request of such person state a case in writing to the Divisional Court setting forth the material facts and the grounds upon which the authority to appoint the commission or the authority of the commission to do the act or thing are questioned.
(2) If the commission refuses to state a case under subsection (1), the person requesting it may apply to the Divisional Court for an order directing the commission to state such a case.
(3) Where a case is stated under this section, the Divisional Court shall hear and determine in a summary manner the question raised.
(4) Pending the decision of the Divisional Court on a case stated under this section, no further proceedings shall be taken by the commission with respect to the subject-matter of the stated case but it may continue its inquiry into matters not in issue in the stated case.
PART II
7.--(1) A commission may require any person by summons,
(a)to give evidence on oath or affirmation at an inquiry; or
(b)to produce in evidence at an inquiry such documents and things as the commission may specify,
relevant to the subject-matter of the inquiry and not inadmissible in evidence at the inquiry under section 11.
(2) A summons issued under subsection (1) shall be in Form 1 and shall be served personally on the person summoned and he shall be paid at the time of service the like fees and allowances for his attendance as a witness before the commission as are paid for the attendance of a witness summoned to attend before the Supreme Court.
8. Where any person without lawful excuse,
(a)on being duly summoned under s. 7 as a witness at inquiry, makes default in attending at the inquiry; or
(b)being in attendance as a witness at an inquiry, refuses to take an oath or to make an affirmation legally required by the commission to be taken or made, or to produce any document or thing in his power or control legally required by the commission to be produced to it, or to answer any question to which the commission may legally require an answer; or
(c)does any other thing that would, if the commission had been a court of law having power to commit for contempt, have been contempt of that court,...
9.--(1) A witness at an inquiry shall be deemed to have objected to answer any question asked him upon the ground that his answer may tend to criminate him or may tend to establish his liability to civil proceedings at the instance of the Crown or any other person, and no answer given by a witness at an inquiry shall be used or be receivable in evidence against him in any trial or other proceedings against him thereafter taking place, other than a prosecution for perjury in giving such evidence.
(2) A witness shall be informed by the commission of his right to object to answer any question under section 5 of the Canada Evidence Act .
10. A commission may admit at an inquiry evidence not given under oath or affirmation.
11. Nothing is admissible in evidence at an inquiry that would be inadmissible in a court by reason of any privilege under the law of evidence.
Criminal Code, R.S.C., 1985, c. C-46, s. 121(1) (b)
121. (1) Every one commits an offence who
. . .
(b) having dealings of any kind with the government, pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which he deals, or to any member of his family, or to any one for the benefit of the employee or official, with respect to those dealings, unless he has the consent in writing of the head of the branch of government with which he deals, the proof of which lies on him;
Constitution Act, 1867, ss. 91(27) , 92(4) , (7) , (13) and (16)
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, --
27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say, --
. . .
4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.
. . .
7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.
. . .
13. Property and Civil Rights in the Province.
. . .
16. Generally all Matters of a merely local or private Nature in the Province.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 11 (c) and (d) and 13
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure.
11. Any person charged with an offence has the right
. . .
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
13. A witness who testifies in any proceeding has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
III. The Judgments
The Supreme Court of Ontario, Divisional Court
The Divisional Court (1989), 70 O.R. (2d) 408, chose to hear the application for the Order directing a stated case as well as the merits of the stated case. There were three issues before the Divisional Court. They were considered by the Court in the following order, at pp. 411, 418 and 420:
1.Do the Terms of Reference violate the principles enunciated in the decision of the Ontario Court of Appeal in Re Nelles and Grange (1984), 46 O.R. (2d) 210?
2.Are the terms of reference unconstitutional as ultra vires the province and contrary to the Canadian Charter of Rights and Freedoms ?
3.Can the investigation proceed as part of the inquiry or is a two-stage procedure required?
The Court began by noting that while the issues were framed in terms of the jurisdiction of the Commissioner to conduct a public inquiry under the provincial act, the underlying concern of the applicants was the balancing of the public's interest in the disclosure and exposure to the public of the conduct relevant to the good government of the province, and the due protection of the constitutional rights of the individual which might be prejudiced by the public nature of the inquiry.
The first issue required the Court to consider the principles laid down in Re Nelles and Grange (1984), 46 O.R. (2d) 210. That case dealt with a Royal Commission of Inquiry into certain mysterious baby deaths at the Hospital for Sick Children in Toronto between July 1980 and March 1981. The terms of reference of the commission authorized the Commissioner, Grange J., without expressing "any conclusion of law regarding civil or criminal responsibility" to inquire into, report on, and make recommendations with respect to how and by what means the children died, and to inquire into, determine and report on the circumstances surrounding the investigation and prosecution of the nurse who was discharged after a preliminary inquiry. In the course of the inquiry, the Commissioner stated the following question: "Was I right in determining that I am entitled in my Report . . . to express my opinion upon whether the death of any child was a result of the action, accidental or otherwise, of any named person or persons?" The Court of Appeal held that the commissioner was prohibited from naming the person or persons responsible for causing the death of any of the children.
In the case at bar, the Divisional Court considered the reasoning of the Court of Appeal in Re Nelles and Grange and concluded, at p. 416, that the case stood for the following proposition:
The ratio of this decision is not that it would be improper to identify persons whose conduct the Commission was inquiring into or to criticize or absolve the conduct of a named person; what was prohibited was making findings of fact in the Commission's report that disclosed the elements of a criminal offence and in addition to na