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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

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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?

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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.

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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

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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;

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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.

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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

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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

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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;

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(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

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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;

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(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

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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)."

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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.

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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

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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

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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

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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;

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(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 frequency of their use. This question falls squarely within the Commis­sion's mandate.

The Commission accordingly orders you, Mr. Bro­deur, to answer the following question:

"Were you aware that members under your authority, your command, participated in illegal operations?"

Finally exception is taken to a decision of the Commissioner given December 5, 1977 the conclu­sions of which read:

[TRANSLATION] The Commission:

REQUIRES the production before it of 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, as well as of 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 regarding the electronic eavesdropping carried out at 3459 St. Hubert Street in Montreal;

[Page 237]

REQUIRES the production before it of the files and documents concerning "disruptive tactics", and in par­ticular those classified in file D-938-Q-25;

REQUIRES the production before it of all files, includ­ing the documents, statements, depositions and reports, connected with the investigation known to have begun on or about June 1, 1977 under the direction of Messrs. Nowlan and/or Quintal and/or other persons, prepared for one or more of these persons or any other person, concerning allegations of acts said to be illegal or repre­hensible and committed in the territory of Quebec;

ORDERS the Solicitor General of Canada, under all penalties provided for by the Act, to give it the said files and documents on December 12, 1977 at 2:00 p.m. in room 5.I5 of the Courthouse, 1 Notre Dame Street East, in Montreal;

INVITES the representatives of the Solicitor General of Canada to make any representations they consider appropriate under article 3.2 of the Commission's rules of practice and procedure after giving it the said documents.

The allegations

In respect of all the above, the motion for a writ of evocation includes the following main allega­tions:

[TRANSLATION] 26. Moreover, respondent Keable is giving his mandate an unconstitutional interpretation, which is ultra vires the powers of the Quebec Legisla­ture, in that he is inquiring into and intends to inquire into the following subjects:

(a) the operating rules of the R.C.M.P.'s Security Service;

(b) the Security Service organization, including the pattern of authority among the various levels;

(c) the methods of collecting information, such as:

(i) technical or electronic sources;

(ii) human sources, recruiting, informing and payment;

(iii) searches;

(iv) interviews with subjects of interest;

(v) infiltration;

(vi) surveillance and shadowing;

(d) the system of classifying files on individuals and the movements of and rules governing the management of the files;

(e) the operation of internal communications and communications among the various police forces;

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(f) internal disciplinary investigations, and in particu­lar the investigation conducted by superintendent Nowlan during June 1977;

(g) the relations between the Commissioner of the R.C.M.P. and the Director General of Security and senior officials of the Solicitor General's Department, the Prime Minister of Canada's Office, the Cabinet, the Solicitor General of Canada, the Prime Minister of Canada and the Cabinet Committee on Security;

(h) the kidnapping of James Cross, the kidnapping and assassination of Pierre Laporte, the visit of Cohn-Bendit to Canada, an alleged escape plot in 1972, an alleged airplane hijacking plot in 1972 and other subjects related to the 1970 October crisis and the acts of terrorism between 1963 and 1973;

(i) interception of mail for purposes of counter-espionage or anti-subversion;

31. The inquiry conducted by respondent may lead to breaches of the Official Secrets Act by the witnesses, and confronts members and former members of the R.C.M.P. with multiple and contradictory obligations: the obligation to give answer to respondent, the obliga­tions under the R.C.M.P. Act and the obligations under the Official Secrets Act;

32. The inquiry conducted by respondent encroaches upon the function of the federal commission of inquiry into the R.C.M.P's Security Service, negates the precau­tions for confidentiality taken by the federal government in the direction of this commission, and in general this investigation conducted by respondent usurps the au­thority and functions of a commission validly created by the Governor in Council in the exercise of his mandate.

The constitutional questions

On the appeal to this Court an order was made stating the constitutional issues raised in the form of the five following questions:

1. Are the Orders-in-Council 1968-77, 2736-77, 2986-77 and 3719-77, in whole or in part, ultra vires the Province of Quebec?

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?

3. If members of a federal institution, namely the Royal Canadian Mounted Police, be involved in allegedly criminal or reprehensible acts, does a commissioner appointed under provincial legislation for the purpose of inquiring into matters concerning the administration of

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justice in the Province have the right, while conducting an inquiry into the circumstances surrounding the commision [sic] of said acts, to inquire into:

(a) the federal institution, namely, the Royal Canadi­an Mounted Police;

(b) the rules, policies and procedures governing the members of the institution who are involved;

(c) the operations, policies and management of the institution;

(d) the management, operations, policies and proce­dures of the security service of the Royal Canadian Mounted Police;

and to make recommendations for the prevention of the commission of said acts in the future?

4. Can the Solicitor General of Canada or any other Minister of the Crown in Right of Canada, in his official capacity, be compelled to appear, testify and produce documents by a commissioner appointed pursuant to provincial legislation for the purpose of inquiring into matters concerning the administration of justice in the Province?

5. Does a Minister of the Crown in Right of Canada, in his official capacity, have the constitutional power to prevent by means of affidavit or otherwise, the produc­tion of documents demanded by a commissioner appointed pursuant to provincial legislation for the purpose of inquiring into matters concerning the adminis­tration of justice in the Province, 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?

The interventions

Interventions have been filed on behalf of the Attorneys General of Ontario, New Brunswick, Manitoba, British Columbia, Saskatchewan and Alberta, generally supporting the appeal in vary­ing degree. Leaving aside for the moment the question raised by the dissenting judge in the Court of Appeal—the extent of a staying order—I propose to deal with the merits by considering the constitutional questions in order, but taking the first three together.

The validity of the Commission's mandate

Although unanimously of the view that the motion's allegations required the issuance of a writ of evocation, the Court of Appeal was equally

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unanimous in holding that the Commission's mandate was not in excess of provincial powers.

In support of this conclusion, appellants submit­ted first that there was no constitutional restriction on the possible scope of such an inquiry. It was contended that there was nothing to prevent a provincial government from ordering, in the public interest, an investigation into any subject whatever, just as any university or private institution can. The short answer to this contention is that this is not an inquiry of the same kind; it is being made, not by resorting only to generally available sources of information, but by compelling the attendance of witnesses to testify under oath and to produce documents. Such powers are not available to a commission set up by virtue of the royal prerogative, they depend on statutory authority, in the present case, on the Public Inquiry Commis­sion Act under which this Commission was estab­lished. A provincial statute cannot be effective beyond the constitutional limits of a provincial legislature's authority. In Reference re a Commission of Inquiry into the Police Department of Charlottetown[8], Nicholson C.J., P.E.I., said after referring to Kelly & Sons v. Mathers[9], (at p. 424):

This statement of Perdue, J.A., with which I agree, is to the effect that the Lieutenant-Governor in Council of a Province has power, apart from the Public Inquiries Act, to issue a commission to investigate matters which fall strictly within one of the classes of subjects assigned exclusively to the provincial Legislatures by s. 92 of the British North America Act, 1867, but that such a power by itself would not by itself entitle the commissioner or persons named to compel the attendance of witnesses or to administer oaths.

This is in accordance with what Viscount Hal­dane has said in Attorney General for the Commonwealth of Australia v. Colonial Sugar[10], (at p. 257):

A Royal Commission has not, by the laws of England, any title to compel answers from witnesses, and such a title is therefore not incidental to the execution of its powers under the common law.

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On the other hand, it appears to me that the majority opinion in Di Iorio v. Warden of the Montreal Jail[11], is conclusive of the validity of the Commission's mandate to the extent that it is for an inquiry into specific criminal activities. I can see no basis for a distinction between such an inquiry and an inquiry into "organized crime" as in Di Iorio, or a coroner's inquiry into a criminal homicide as in Faber v. The Queen[12], or a fire marshal's inquiry into arson as in Regina v. Coote[13]. Notwithstanding all the arguments sub­mitted by counsel for the Solicitor General of Canada, I find myself bond by authority to hold that such inquiries come within the scope of "The Administration of Justice in the Province".

Reference was made to the judgment of the Court of Appeal of New Zealand in Cook v. Attorney General[14]. I do not find the decision of great interest, it merely turns on the proper con­struction of the relevant Commissions of Inquiry Act. In the present case, no question arises as to the extent of the legislation under which the inqui­ry was ordered. The issue is as to the extent of the province's legislative authority over this inquiry.

Reference was also made to the judgment in McGee v. Pooley[15], where an injunction was issued to restrain a security frauds investigation on the basis that this was an inquiry into a criminal matter. That case is of no authority: it rests on views which are not in accordance with the deci­sion of the Privy Council rendered the following year in Lymburn v. Mayland[16]

Great stress was laid by the appellants as well as by intervenants on Dickson's J. statement in Di Iorio, at p. 208, that "A provincial commission of inquiry, inquiring into any subject, might submit a report in which it appeared that changes in federal laws would be desirable". This was said obiter in a case concerning an inquiry into organized crime.

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As previously noted, the basis of the decision was that such an inquiry into criminal activities is within the proper scope of "The Administration of Justice in the Province". The intended meaning of the sentence quoted is not that a provincial com­mission may validly inquire into any subject, but that any inquiry into a matter within provincial competence may reveal the desirability of changes in federal laws. The commission might therefore, whatever may be the subject into which it is validly inquiring, submit a report in which it appeared that changes in federal laws would be desirable. This does not mean that the gathering of information for the purpose of making such a report may be a proper subject of inquiry by a provincial commission.

I thus must hold that an inquiry into criminal acts allegedly committed by members of the R.C.M.P. was validly ordered, but that consider­ation must be given to the extent to which such inquiry may be carried into the administration of this police force. It is operating under the author­ity of a federal statute, the Royal Canadian Mounted Police Act, (R.S.C. 1970, c. R-9). It is a branch of the Department of the Solicitor General, (Department of the Solicitor General Act, R.S.C. 1970, c. S-12, s. 4). Parliament's authority for the establishment of this force and its management as part of the Government of Canada is unques­tioned. It is therefore clear that no provincial authority may intrude into its management. While members of the force enjoy no immunity from the criminal law and the jurisdiction of the proper provincial authorities to investigate and prosecute criminal acts committed by any of them as by any other person, these authorities cannot, under the guise of carrying on such investigations, pursue the inquiry into the administration and management of the force. The doctrine of colourability is just as applicable in adjudicating on the validity of a commission's term of reference or decisions as in deciding on the constitutional validity of le­gislation. As Viscount Simon said in Attorney General for Saskatchewan v. Attorney General for Canada[17],

[Page 243]

 (at p. 124) "you cannot do that indirectly which you are prohibited from doing directly".

The words [TRANSLATION] "and the frequency of their use" at the end of paragraph a) as well as the words "and the frequency of their use" at the end of paragraph c), of the Commissioner's mandate, do not contemplate an inquiry into criminal acts but into the methods used by the police forces. Those are essential aspects of their administration and therefore, to the extent that those words relate to the R.C.M.P., what they purport to authorize is beyond provincial jurisdiction to inquire into. That this is the intended scope of the inquiry is apparent from the subpoenas which call for the production of all operating rules and manuals. For similar reasons, I would hold that paragraph d) is invalid in so far as it relates to the R.C.M.P. This paragraph pertaining to recommendations, following as it does provisions contemplating an inquiry into the regulations and practices of the R.C.M.P., is clearly intended to invite, as a purpose of the inquiry, recommendations for changes in such regulations and practices. Inasmuch as these are the regulations and practices of an agency of the federal government, it is clearly not within the proper scope of the authority of a provincial legis­lature to authorize such an intrusion by an agent of a provincial government.

Counsel for the appellants took exception to the statement by Paré J.A. that [TRANSLATION] "a commission of inquiry ... is merely an extension of the executive branch, which it serves and to which it reports". It was contended that a commis­sion's status was like that of a court, one of independence towards the executive. In support of this contention, reference was made to the report of the Royal Commission on some spying activities dated June 27, 1946, in which, at p. 683, reference is made to Clokie & Robinson, Royal Commis­sions of Inquiry, at pp. 150-151. It should, however, be noted that at p. 87 the authors of this book have written:

... A "crown-appointed" or "royal" commission is only in a formal sense a monarchial weapon; in practice it is

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quite clearly and undeniably an agency of ministers who possess a majority in the House of Commons.

The Solicitor General not a compellable witness

I do not find it necessary to review at great length the numerous authorities cited on the fourth constitutional question. Because, at common law, 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 it seems clear that provincial legislation cannot be effective by itself to confer such jurisdiction as against the Crown in right of Canada. In the recent case of Her Majesty in right of Alberta v. C.T.C.[18], Laskin C.J., said with the concurrence of all but two of the other members of the Court (at p. 72):

... a Provincial Legislature cannot in the valid exercise of its legislative power, embrace the Crown in right of Canada in any compulsory regulation.

In Quebec North Shore Paper v. C. P. Ltd.[19], Laskin C.J., said, speaking for the full Court, (at p. 1063):

... It should be recalled that the law respecting the Crown came into Canada as part of the public or constitutional law of Great Britain, and there can be no pretence that that law is provincial law. In so far as there is a common law associated with the Crown's position as a litigant it is federal law in relation to the Crown in right of Canada, just as it is provincial law in relation to the Crown in right of a Province, and is subject to modification in each case by the competent Parliament or Legislature... .

In R. v. Richardson[20], Estey J. said with refer­ence to the Ontario Highway Traffic Act barring any action after the expiration of twelve months from the time the damages were sustained:

... this statutory provision enacted by the province does not specifically mention His Majesty and therefore would not be effective against His Majesty in the right of the province and much less against His Majesty in the right of the Dominion... .

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In Gauthier v. The King[21], Anglin J., as he then was, said at p. 194:

... Provincial legislation cannot proprio vigore take away or abridge any privilege of the Crown in right of the Dominion... .

Appellants submit that the decision of this Court in Regina v. Snider[22] means that a minister of the Crown is a compellable witness at a trial and they point out that under s. 7 of the provincial Act a commissioner has "all the powers of a judge of the Superior Court in term". This enactment cannot, at least towards federal authorities, have the effect of making an inquiry the legal equiva­lent of a trial. Such an inquiry is rather in the nature of a discovery and it seems to be well established that, at common law, the Crown enjoys a prerogative against being compelled to submit to discovery. In La Société Les Affréteurs Réunis and The Shipping Controller[23], Darling J. said (at p. 15):

... But even if the statement of Rigby L.J. was an obiter dictum, this Court is entitled to have regard to it and must look at it in order to see whether or not it lays down a principle which appears to be the right one. What he said was: "I have got to administer the law; the law is that the Crown is entitled to full discovery, and that the subject as against the Crown is not (1897) 2 Q.B. 384, 395." It was stated in Tomline v. The Queen, 4 Ex. D. 252, that the Crown does not owe discovery to the subject. I think Rigby L.J. was saying no more than that. There is thus a definite decision of the Court of Exchequer that the Crown is not bound to give discovery to the subject, and the opinion of a Lord Justice in the Court of Appeal recognizing that decision, and that decision and opinion are sufficient authority for this Court to recognize the rule which they lay down as the law of the land, unless it is convinced that it cannot be so. Rigby L.J. goes on: "That is a prerogative of the Crown, part of the law of England, and we must admin­ister it as we find it...."

In Crombie v. The King[24], Masten J. said (at p. 546):

[Page 246]

... But, though discovery is a remedy merely, yet none the less the right of the Crown to refuse discovery is a matter of prerogative right:.. .

In R. v. Lanctot[25], Bond J. said (at p. 332):

It would appear, accordingly, from the authorities—a few of which I have referred to—that the Crown cannot be compelled to give discovery... .

Counsel for the appellants suggested that this question did not appear to have been raised initial­ly as part of the Solicitor General's objections to the Commissioner's demands. Be that as it may, the point is raised in one of the constitutional questions set down in this Court, and was explicit­ly dealt with in the Court of Appeal where Paré J.A. said:

[TRANSLATION]I am therefore of the opinion that the provincial statute on commissions of inquiry, and the powers a commissioner is given under this statute, cannot bind the Crown in right of Canada, and respond­ent Commission cannot exercise against a Minister of the Crown in right of Canada the powers it is given by sections 7, 9, 10 and 11 of this statute. It should be emphasized in this regard that the subpoenas ordering the Solicitor General to appear and produce the required documents are not addressed to him personally but in his capacity as Solicitor General of Canada. In fact this could not have been otherwise, since it is only in this capacity that he has control of the documents required.

I would therefore answer question 4 in the negative.

The Crown privilege

The last constitutional question relates to the extent of the Crown privilege claimed in the interest of national security. This brings up for con­sideration the provisions of s. 41 of the Federal Court Act which reads:

41. (1) Subject to the provisions of any other Act and to subsection (2), when a Minister of the Crown certifies to any court by affidavit that a document belongs to a class or contains information which on grounds of a public interest specified in the affidavit should be withheld from production and discovery, the court may examine the document and order its produc­tion and discovery to the parties, subject to such restrictions

[Page 247]

or conditions as it deems appropriate, if it con­cludes in the circumstances of the case that the public interest in the proper administration of justice outweighs in importance the public interest specified in the affidavit.

(2) When a Minister of the Crown certifies to any court by affidavit that the production or discovery of a document or its contents would be injurious to interna­tional relations, national defence or security, or to feder­al-provincial relations, or that it would disclose a confi­dence of the Queen's Privy Council for Canada, discovery and production shall be refused without any examination of the document by the court.

Although this enactment is in the Federal Court Act, the wording makes it clearly applicable to "any court". This makes it applicable not only to the provincial courts which are, in the main, courts of general jurisdiction, federal and provincial, but also to any official invested with the powers of a court for the production of documents. I would in this respect make the same reasoning as for the availability of evocation: whenever the Commis­sioner claims to exercise such powers he is subject to the provisions applicable to a court in respect of those powers.

Counsel for the appellants pointed out that the Commissioner does not deny that he is subject to the application of s. 41 of the Federal Court Act. However, he has claimed the right to decide to what extent the Solicitor General's objections made by affidavit should be upheld, and the Court was invited by counsel to examine all the docu­ments filed with the motion, including the com­plete transcript in thirty volumes of all of the proceedings at the inquiry. In my view, such an exhaustive examination of the voluminous exhibits filed with the motion and therein referred to does not come within the scope of the task assigned to the judge called upon to decide whether a writ of evocation should issue. Under the two-step proce­dure contemplated by the Code of Civil Procedure, the duty of the judge at the first hearing is described as follows, in art. 847 C.C.P., second paragraph:

The judge to whom the motion is presented cannot authorize the issuance of a writ of summons unless he is of opinion that the facts alleged justify the conclusions sought.

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In my view this enactment does not require a full examination of all the proceedings of the Commissioner. It is sufficient to examine his terms of reference and his impugned decisions in the light of the facts alleged in the motion in order to determine whether, taking for the moment those facts as established, the issuance of the writ is justified. It is not the duty of the Court at this juncture to review all the proceedings of the Com­missioner in order to decide immediately to what extent the allegations of the motion are proved or disproved by the complete record.

In my view, the effect of the above quoted enactment is correctly stated by Deschênes J.A., as he then was, in Cahoon v. Le Conseil de la Corpo­ration des Ingénieurs[26], as follows (at pp. 212-13):

[TRANSLATION] It must therefore be held that, in performing its duty under Art. 847(2) C.C.P., the Court is fully entitled to refer to the documents that have been filed in support of the motion, provided however that these are authentic documents or exhibits the accuracy of which is not in dispute between the parties. A fortiori the Court may have recourse to them where, as here, the applicant incorporates them into his motion and extracts from them passages which he introduces into his actual allegations.

Obviously, the judge hearing the motion for authori­zation to issue the writ should not decide prematurely the merits of the case, on the basis of his examination of the documents produced by the applicant. However, he may draw from them the conclusions he feels are neces­sary in order to ascertain whether "the facts alleged justify the conclusions sought" (art. 847(2) C.C.P.).

No question is raised as to the constitutional validity and applicability of s. 41, and I find it unnecessary to review the well known decisions of the House of Lords in Duncan v. Cammell Laird & Co. Ltd.[27] and Conway v. Rimmer[28], in which somewhat different views were taken of the nature of the privilege in question at common law. Parlia­ment has subsequently enacted explicit provisions which spell out the law for Canada and the affidavit

[Page 249]

submitted to the Commissioner was obviously made under subs. 2 of s. 41. There was much discussion at the hearing whether such an affidavit is really conclusive or may somehow be challenged. I do not find it necessary to decide this point because, if such an affidavit can be challenged this may be done only before a court of competent jurisdiction and a commissioner is not such a court and does not enjoy the powers of such a court.

Section 7 of the provincial Act purports to confer upon a commissioner "all the powers of a judge of the Superior Court in term" but this cannot make him a superior court, as this is something a provincial legislature cannot do by reason of s. 96 of the B.N.A. Act (see the recent judgment of this Court in Attorney General of Quebec v. Farrah[29]). The Commissioner does not enjoy the status of a superior court, he has only a limited jurisdiction. His orders are not like those of a superior court which must be obeyed without ques­tion; his orders may be questioned on jurisdictional grounds because his authority is limited. Therefore his decisions as to the proper scope of his inquiry, the extent of the questioning permissible, and the documents that may be required to be produced, are all open to attack, as was done before the Ontario Divisional Court in Re Royal Commission and Ashton[30]. In that case this was done by stated case under some specific provisions of the Ontario Public Inquiries Act. In the absence of similar provisions in Quebec, evocation is the proper remedy, just as certiorari was found proper by the House of Lords in Rogers v. Secretary of State[31].

Because a commissioner has only limited au­thority he enjoys no inherent jurisdiction, unlike superior courts which have such jurisdiction in all matters of federal or provincial law unless specifi­cally excluded. It is by virtue of this inherent jurisdiction that superior courts have a general

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superintending power over federal as well as pro­vincial authorities, as held in Three Rivers Boatman (supra). It is unnecessary to decide in the present case whether any possible attack against an affidavit made under s. 41(2) of the Federal Court Act comes within the exclusive jurisdiction conferred upon the Trial Division of the Federal Court by s. 18 of that Act, because I find it clear that any jurisdiction for entertaining such attack can only be found in a superior court. The Com­missioner is therefore bound to accept the affidavit as submitted unless it is set aside by a competent court.

The Official Secrets Act

A special point has been made with reference to some documents for which the Solicitor General's affidavit claims Crown privilege in the interest of national security but which the Commissioner has obtained from other witnesses. The Commissioner was of the view that the claim of privilege by affidavit was ineffective. In the present case, those documents had been entrusted by R.C.M.P. offi­cers to members of police forces under provincial authority. These documents were classified as secret and stamped as such. They were com­municated under obligation to preserve their confi­dentiality. Counsel for the Commissioner sought to defend his decision to make some of those docu­ments public over the Solicitor General's objection, not only on the basis that the affidavit became ineffective when the Commissioner managed to get the documents from other sources, but also on the basis that any obligation of confidentiality assumed by members of police forces under pro­vincial authority disappeared in the face of orders given by their provincial superiors. I find this an untenable contention. Even apart from the provi­sions of the Official Secrets Act, an employee's duty of obedience towards his employer does not mean that the latter has any power to compel his employee to act in breach of a duty of confiden­tiality. The medical director of a hospital cannot release a doctor from his obligation of confiden­tiality towards his patient, only the latter may release him from his duty. Section 4 of the Official Secrets Act makes it clear that it is the duty of

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every person who has in his possession information entrusted in confidence by a government official and subject to the Act, to refrain from communicating it to any unauthorized person. No special form is prescribed for bringing this duty to the attention of all concerned. The Commissioner certainly could not brush aside the objection because it was raised by affidavit and after he had obtained possession of the documents. Whether these were in fact subject to the Act will have to be decided on the merits.

The Staying Order

As previously mentioned, the Court of Appeal when ordering the issue of the writ also directed that all proceedings in the inquiry be suspended. Kaufman J.A. dissenting on that point said:

I would therefore allow the appeal in part, quash the judgment a quo, and order that a writ do issue, enjoin­ing the Respondent and his staff to transmit to the Superior Court, within 15 days from the date of this judgment, all documents, including transcripts of the argument and evidence, which relate to information given by the R.C.M.P. to other persons and which were produced by them before the Commission. I would also enjoin the Respondent and his staff from utilizing in any form or manner the contents of these documents; nor should the. Respondent and his staff attempt to obtain this information by viva voce evidence or any other means.

The majority felt that, in the circumstances, a general staying order was preferable. The reasons for this conclusion were expressed as follows by Monet J.A.:

[TRANSLATION] The provisions of art. 848 C.C.P., which apply to all cases of evocation provided for in art. 846 C.C.P., are drafted in general terms and do not confer, at least expressly, the power to "suspend the proceedings in part".

Even if the Superior Court has this power-something on which I am not expressing an opinion—the interests of justice, in the circumstances of the case under review, do not require that a dividing line be drawn, the accura­cy of which may be subject to interpretation on the question of which part of the proceedings should be suspended. Rather than imposing on respondent ès qualités

[Page 252]

the duty to decide this question, it would be better for the Superior Court to evoke the matter and rule on the merits.

After lodging their appeal to this Court, the appellants moved for an order limiting the suspen­sion of the inquiry as suggested by Kaufman J.A. This motion was unanimously dismissed by judg­ment of the full Court dated March 21, 1978. The Chief Justice expressed our unanimous opinion as follows:

... There are serious jurisdictional and constitutional questions involved in the appeal, questions to which the Quebec Court of Appeal was sensitive, and I think the proper course is not to truncate its order for the issue of a writ of evocation and for suspension of the Keable Commission's proceedings prior to the determination of the appeal proper.

No other conclusion was possible at that time, if only because the Commissioner's mandate was challenged in its entirety. Having, however, come to the conclusion that the attack fails save in some respects, the question must now be considered in a new light. The conclusion of this Court on the validity of the mandate is, although pronounced in appeal from interlocutory proceedings, a final judgment on that point because this is a pure question of law. Questions of fact remain to be decided only in respect of the issues other than the validity of the Commissioner's mandate.

The majority decision in the Court of Appeal was based on a sound exercise of judicial discretion in a case like this. However the issue as to the validity of the Commissioner's mandate has now been disposed of. It is therefore necessary to con­sider whether the whole inquiry should remain suspended while some secondary issues are being litigated on the merits. At first sight, art. 848 of the Code of Civil Procedure would appear to contemplate a complete suspension of proceedings because it reads:

848. The writ introductive of suit is addressed to the opposite party and to the court, judge or functionary, and it orders the suspension of all proceedings and the transmission to the office of the Superior Court, within the delay fixed, of the record in the case and all the exhibits connected therewith.

[Page 253]

It must however be noted that what is the "case" is not specified. It is clear that when the validity of the Commissioner's mandate was in issue, the "case" was the whole inquiry. But now that this issue is being disposed of by the judgment on this appeal, does the remaining "case" include anything more than the specific decisions of the Commissioner under attack, the subpoenas to the Solicitor General and R.C.M.P. documents includ­ing the transcript of the argument and evidence relating thereto? I fail to see any reason for con­struing art. 848 as preventing the Court from so defining the "case". I would therefore allow the appeal for the purpose of issuing a restricted stay­ing order.

Conclusions

For those reasons, I would allow the appeal in part and answer the constitutional questions stated in this case as follows:

Question 1: Yes, to the following extent as concerns the Royal Canadian Mounted Police, namely: 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: Yes.

Question 3: No.

Question 4: No.

Question 5: Yes.

I would direct that the suspension of proceedings ordered by the Court of Appeal be limited to proceedings in respect of matters relating to the parts of the Commissioner's mandate found to be ultra vires in the answer to the first constitutional question and to the decisions of the Commissioner under attack, to the subpoenas to the Solicitor General and to R.C.M.P. documents including the transcript of the argument and evidence relating thereto and that such decisions, subpoenas and documents be the record of the inquiry ordered to be transmitted to the prothonotary of the Superior Court.

There shall be no order as to costs.

[Page 254]

The judgment of Spence and Estey was deliv­ered by

ESTEY J.: I have had the opportunity of read­ing the judgment of my brother, Pigeon J., and with his disposition of this appeal I am respectfully in complete agreement. Reference is made in those reasons to the judgments of this Court in Faber v. The Queen[32], and Di Iorio v. Warden of the Common Jail of Montreal[33], in determining "the validity of the Commission's mandate to the extent that it is for an enquiry into specific criminal activities".

Holding as I do to the view that a Province may not in the guise of acting within its legislative authority under s. 92(14) invade the exclusive federal power under s. 91(27), I feel compelled to make the following observations with respect to those two authorities as they may apply to this appeal. There can be no debate at this stage of our constitutional development that the position of the federal Parliament with reference to the legislative power in relation to criminal procedure and crimi­nal law is exclusive and may not be eroded or undermined by a purported exercise of legislative or executive authority in relation to "the adminis­tration of justice in the Province". I do not read the Di Iorio case, supra, as going so far as to permit the invasion by provincial action of the sanctity of the right to remain silent during what is in truth and substance a criminal investigation. The investigation of the incidence of crime or the profile and characteristics of crime in a province, or the investigation of the operation of provincial agencies in the field of law enforcement, are quite different things from the investigation of a precise­ly defined event or series of events with a view to criminal prosecution. The first category may involve the investigation of crime generally and may be undertaken by the invocation of the pro­vincial enquiry statutes. The second category entails the investigation of specific crime, the procedure for which has been established by Par­liament and may not be circumvented by provin­cial action under the general enquiry legislation

[Page 255]

any more than the substantive principles of crimi­nal law may be so circumvented.

The only room left for debate is where the line between the two shall be drawn. The difficulty in ascertaining and describing this line is matched by the importance of doing so. The judgment of this Court in Faber, supra, from a technical viewpoint went off on the ground that the application for writ of prohibition restraining the coroner was made to the wrong court. It must at the same time be acknowledged that the substantial thrust of the majority decision was that the nature of the coro­ner's investigation had shifted "from investigation of crimes to investigation of everything that is not natural or purely accidental ..." ; and later, in the judgment of de Grandpré J. speaking for the majority (there were four dissents):

... the coroner is not now a part of the structure of criminal justice. The link was completely severed in 1892, and subsequent legislative changes have only made this fact more apparent. The traditional role of the coroner, as it existed in England, disappeared, and was replaced by a duly Canadianized function, one which was not primarily of a criminal nature, but came to have a social context. (at p. 30)

There have been several earlier judicial disserta­tions in other courts on the legal characterization of the coroner's inquest, and, generally, it may be said that the main stem of the classification or characterization was the absence of a lis and that there was no accused and no charge. Indeed, this Court in Batary v. Attorney General for Sas­katchewan et al.[34], found that the characterization in law of a coroner's inquest may well depend upon the timing of the laying of a charge or the preferring of an indictment. In the Batary case, supra, this Court found that a writ of prohibition should indeed issue against the coroner on the application of one of several persons arrested in connection with the death of a person which was being investigated by the coroner and in the course of which investigation the accused applicant had been sub­poenaed to appear before the coroner for examina­tion as a witness in the proceedings. The coroner ruled that the applicant under subpoena and crimi­nal charge was a compellable witness but this

[Page 256]

Court found otherwise. In the Faber case, supra, the Batary judgment was distinguished by the majority judgment in this Court on the footing that the applicant for prohibition, Faber, had not at the time he was required to testify before the coroner been charged with an offence in connec­tion with the death under investigation before the coroner. The circumstance, sometimes almost acci­dental or at least undirected, of the existence or non-existence of a charge by indictment, informa­tion or otherwise, is not, in my view, of controlling significance when determining the constitutional status of a process such as we are now considering.

In Di Iorio, supra, the subject of the proceedings was, as pointed out by my brother, Pigeon J., "an inquiry into organized crime". The mandate of the Commission of Enquiry was expressed this way:

That in the fight against organized crime, the Quebec Police Commission shall make an enquiry into the activities of any organizations or systems including their ramifications ..."

Two things are abundantly clear from the terms of the mandate as they are in part set forth in the report at p. 181:

(a) The Quebec Police Commission was directed to enquire into the activities of unspecified organizations or systems where such operate "in illegal gaming and betting, etc."; and,

(b) That the Commission, upon completing its investigation, shall submit a "written report setting forth the findings" which it will have made.

This Court found that such executive direction by a Province to a provincially constituted enquiry was constitutionally valid.

The nature of the directed enquiry now before this Court is generically similar to the Di Iorio enquiry in that:

(a) The Commission is directed to investigate certain specified activities of the Police of the City of Montreal, the Quebec Police Force and the Royal Canadian Mounted Police; and

[TRANSLATION] (b) "to make recommendations on the measures to be taken to ensure that any

[Page 257]

illegal or reprehensible acts the Commission uncovers will not be repeated in future;"

It is equally clear in both instances that the mandate could not be performed by the enquiry tribunal without an investigation into specific instances of alleged criminal activities or at least events and circumstances in the course of which it is alleged offences had been committed.

In my view, the "administration of justice" authorizes and indeed requires a province to estab­lish, maintain and operate such facilities as may from time to time be necessary and advisable for the proper and effective enforcement of the crimi­nal law. That is not to say that only these activities are embraced in the expression "administration of justice". On the other hand, it is not only the Province and its agencies which may be concerned with the enforcement of the criminal law. It is equally clear that s. 92(14) does not authorize the Province to legislate with respect to criminal procedure directly or indirectly. It is the Criminal Code which sets forth the procedure prescribed by the sovereign authority, the Parliament of Canada, and which is to be followed in the investigation of crime and in the prosecution of ensuing charges. The Province, in the discharge of its role under s. 92(14) of The British North America Act may be required, or may find it convenient, to examine by the usual executive agencies or by a commission of enquiry, the operation of its policing facilities and personnel, and the prevalence of crime and its nature in the Province. Such was the case before the Court in Di Iorio, supra. At the other end of the scale, the enforcement agencies of the Province may of course investigate allegations or suspicions of specific crime with a view to the enforcement of the criminal law by prosecution. This investigation must be in accordance with federally prescribed criminal procedure and not otherwise, as for exam­ple, by coercive enquiry under general enquiry legislation of the Province.

In the middle of the scale is the situation facing the Court in this proceeding. The Province has set out to investigate the operations of provincial and municipal police apparatus in relation to certain

[Page 258]

specific events which have obvious criminal conno­tations. Each such enterprise when undertaken by a province must be examined in its own particular circumstances. Where the object is in substance a circumvention of the prescribed criminal proce­dure by the use of the enquiry technique with all the aforementioned serious consequences to the individuals affected, the provincial action will be invalid as being in violation of either the criminal procedure validly enacted by authority of s. 91(27), or the substantive criminal law, or both. Where, as I believe the case to be here, the substance of the provincial action is predominantly and essentially an enquiry 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 specifc criminal activities, the provincial action is authorized under s. 92(14).

One of the main bastions of the criminal law is the right of the accused to remain silent. In the coldest practical terms, that right, so long as it remains unaltered by Parliament, may not be reduced, truncated or thinned out by provincial action.

On the other hand, to strip a province of the right to investigate the operations of provincial and municipal police in the detection of crime and the enforcement of the criminal law would be to put a serious impediment in the path of those authorities charged with "the administration of justice" within the Province and I would not readily find such an interpretation to be appropriate in the application of these competing subsections of ss. 91 and 92. This right or authority on the part of the Province in relation to s. 92(14) does not by a back door, as it were, lead to a right to investigate a validly established federal organization, includ­ing a federal police organization. That is not to say that where members of such a federally organized force offend the criminal law, the ordinary agen­cies of criminal investigation and law enforcement within the Province would not operate as in the case of any other individuals. There may be cir­cumstances in those Provinces which have contrac­tual or other arrangements with the federal gov­ernment with reference to the maintenance of

[Page 259]

police forces which will call into question different principles, but with which we are not here concerned.

It is my view, therefore, that a province may investigate an identified crime in the manner and through the procedures prescribed by Parliament, remaining free in the directing of its forces engaged in the administration of justice within the Province to investigate crimes and criminal activi­ties generally and the operations of provincially organized agencies engaged in law enforcement; but neither plenary authority may investigate the undertaking of an agency validly established by the other plenary authority. The dividing line will at all times be difficult to establish. This is an unhappy characteristic of constitutional law and its application. Difficulty in ascertaining the pre­cise boundary in specific circumstances is no reason to withdraw from the responsibility of enunciating a constitutional doctrine which recog­nizes the validity of the exclusive authorities in the subsections of ss. 91 and 92 respectively.

I add these few words in these proceedings because of the tendency which may develop to construe the aforementioned judgments of this Court as necessarily indicating 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.

PRATTE J.:—I have read the reasons proposed to be delivered by my brother Pigeon and in which, in answer to the first constitutional question, he expresses the view that the mandate was valid except as concerns the Royal Canadian Mounted Police and to the extent indicated by him.

Had it not been for the majority decision of this Court in the case of Faber v. The Queen[35], I would have answered this first question differently. I would have said that the Commission's mandate was in excess of provincial powers to the extent that it provides for a coercive inquiry which is

[Page 260]

essentially aimed at investigating specific crimes and searching for their authors. However, in the light of the decision in the Faber case, I feel obligated to answer this constitutional question in the manner proposed by Pigeon J.

As to the other points raised in the appeal, I agree with Pigeon J.

Appeal allowed in part.

Solicitors for the Attorney General of Quebec: Gérald Tremblay and Rodolphe Bilodeau, Mon­treal.

Solicitors for Jean Keable: Michel Décary and Jean-Pierre Lussier, Montreal.

Solicitors for the Attorney General of Canada: Ahern, Nuss & Drymer, Montreal.

Solicitors for the Solicitor General of Canada: Robert, Dansereau, Barre, Marchessault & Thi­beault, Montreal and Réjean F. Paul, Montreal.

Solicitors for the Commissioner of the Royal Canadian Mounted Police: Courtois, Clarkson, Parsons & Tétrault, Montreal.

Solicitor for the Attorney General of Ontario: Allan Leal, Toronto.

Solicitors for the Attorney General of New Brunswick: Gordon F. Gregory and H. Hazen Strange, Fredericton.

Solicitor for the Attorney General of Manitoba: G. E. Pilkey, Winnipeg.

Solicitor for the Attorney General of British Columbia: Louis F. Lindholm, Victoria.

Solicitor for the Attorney General of Saskat­chewan: Serge Kujawa, Regina.

Solicitors for the Attorney General of Alberta: R. W. Paisley and W. Henkel, Edmonton.



[1] [1978] C.A. 44.

[2] [1977] S.C. 982.

[3] [1969] S.C.R. 607.

[4] [1971] S.C.R. 756.

[5] [1965] S.C.R. 12.

[6] [1935] S.C.R. 441.

[7] [1978] 1 S.C.R. 1048.

[8] (1977), 74 D.L.R. (3d) 422.

[9] (1915), 23 D.L.R. 225.

[10] [1914] A.C. 237.

[11] [1978] 1 S.C.R. 152.

[12] [1976] 2 S.C.R. 9.

[13] (1873), L.R. 4 P.C. 599.

[14] (1909), 28 N.Z.L.R. 405.

[15] [1931] 4 D.L.R. 475.

[16] [1932] A.C. 318.

[17] [1949] A.C. 110.

[18] [1978] 1 S.C.R. 61.

[19] [1977] 2 S.C.R. 1054.

[20] [1948] S.C.R. 57.

[21] (1917), 56 S.C.R. 176.

[22] [1954] S.C.R. 479.

[23] [1921] 3 K.B.1.

[24] [1923] 2 D.L.R. 542.

[25] (1941), 71 Que. K.B. 325.

[26] [1972] R.P. 209.

[27] [1942] A.C. 624.

[28] [1968] A.C. 910.

[29] [1978] 2 S.C.R. 638.

[30] (1975), 64 D.L.R. (3d) 477.

[31] [1972] 2 All E.R. 1057.

[32] [19761 2 S.C.R. 9.

[33] [1978] 1 S.C.R. 152.

[34] [1965] S.C.R. 465.

[35] [1976] 2 S.C.R. 9.

 

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