Supreme Court Judgments

Starr v. Houlden, [1990] 1 S.C.R. 1366

 

Patricia Starr, Tridel Corporation Inc.,

Mario Giampietri and Gordon Ashworth                                                                        Appellants

 

v.

 

The Honourable Mr. Justice Lloyd W. Houlden,

Commissioner and the Government of Ontario                                                              Respondents

 

indexed as:  starr v. houlden

 

File No.:  21777.

 

1990:  March 8; 1990:  April 5.

 

Present:  Dickson C.J. and Lamer, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.

 

on appeal from the court of appeal for ontario

 

    Constitutional law ‑‑ Division of powers ‑‑ Criminal law ‑‑ Provincial inquiry into allegations of political corruption ‑‑ Terms of reference naming specific private individuals ‑‑ Terms strikingly similar to Criminal Code  provision but expressly prohibiting finding of criminal wrongdoing ‑‑ Whether or not inquiry as framed falling within federal criminal law power ‑‑ Constitution Act, 1867, s. 91(27)  ‑‑ Public Inquiries Act, R.S.O. 1980, c. 411.

 

    Constitutional law ‑‑ Charter of Rights  ‑‑ Legal rights ‑‑ Provincial inquiry into allegations of political corruption ‑‑ Terms of reference naming specific private individuals ‑‑ Terms strikingly similar to Criminal Code  provision but expressly prohibiting finding of criminal wrongdoing ‑‑ Whether or not infringement of ss. 7  to 14  of the Charter  ‑‑ If so, whether or not infringement justified under s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 .

 

    Allegations were made in the press that Starr, the President of a section of a registered charity, had made contributions from the charity's funds to political parties and that there was an association between her and Tridel Corporation Inc.  Allegations about the relationship between Starr and various public officials, elected and unelected, mounted in the media and in the Legislative Assembly.  Ashworth, the Executive Director of the Premier's Office, resigned his position after revealing that Starr had arranged for his family to receive personal benefits at no cost to himself.  The province instituted a number of investigations.

 

    A commission of inquiry was appointed pursuant to the Public Inquiries Act to inquire into the facts surrounding the relationships between Starr, any person or corporation she may have acted for, including Tridel Corporation Inc., and any elected and appointed officials, including Ashworth.  The appellants' requested the Commissioner to state a case dealing with the competence of the province to establish the inquiry and its potential effects on individual rights at common law and under the Canadian Charter of Rights and Freedoms .  When that application was dismissed, they applied to the Divisional Court to direct the Commissioner to state a case.  That court heard the application, determined the case on its merits, and dismissed the application.  The Court of Appeal dismissed an appeal from that decision.  Three constitutional questions queried:  (1) whether the inquiry's terms of reference fell within Parliament's criminal law power; (2) whether it infringed the Charter 's legal rights (ss. 7 to 14); and (3) if so, whether the inquiry was justified under s. 1.  The appellants raised two additional issues.  Firstly, did the terms of reference violate the principles enunciated by the Court of Appeal in Re Nelles and Grange because they required the Commissioner to investigate the conduct of named persons as to their civil or criminal responsibility while expressly prohibiting him from expressing any conclusions regarding their civil or criminal responsibility?  And secondly, if the Order in Council was constitutional, could the inquiry proceed in the face of the ongoing police investigation, and if so, what procedure was mandated by the Order in Council and the necessity not to interfere with the rights guaranteed by the Charter ?

 

    Held (L'Heureux‑Dubé J. dissenting):  The appeal should be allowed.  The first constitutional question should be answered in the affirmative; it was not necessary to pronounce on the other constitutional questions or issues.

 

    Per Dickson C.J. and Lamer, La Forest, Sopinka, Gonthier and Cory JJ.:  The inquiry's terms of reference exceeded the province's jurisdiction.  The inquiry in effect served as a substitute police investigation and preliminary inquiry with compellable accused in respect of s. 121  of the Criminal Code  and was in pith and substance a matter falling within Parliament's exclusive criminal law power.

 

    The inquiry's terms of reference envisaged a two‑step process that eventually narrows its scope.  Firstly, the Commissioner had a broad mandate to locate and identify the dealings between Starr and Tridel Corporation Inc. and elected and unelected public officials.  Secondly, he was to inquire into and report upon those dealings indicating whether a benefit was conferred upon an elected or unelected public official.  Only Starr and Tridel Corporation Inc. were named in the terms of reference; no public officials were named.

 

    The inquiry process cannot be used to circumvent the federally prescribed criminal procedure. It is coercive and quite incompatible with our notion of justice in the investigation of a particular crime and the determination of actual or probable criminal or civil responsibility.

 

    The pith and substance of a provincial commission must be firmly anchored to a provincial head of power and cannot be used, either purposely or through its effect, as a means to investigate and determine the criminal responsibility of specific individuals for specific offences.

 

    In pith and substance, this inquiry was a substitute police investigation and preliminary inquiry into an offence alleged to have been committed by one or both of the named individuals.  Its terms of reference named private individuals using language virtually indistinguishable from the parallel Criminal Code  provision and the Commissioner's findings would, in effect, establish a prima facie case against the named individuals.  Investigation of public officials would be incidental to the main focus of the Commissioner's mandate because it was defined in terms of whether they had dealings with Starr or Tridel Corporation Inc.

 

    No broader policy objective was present to distinguish this inquiry from a substitute police investigation.  The terms of reference made no mention of an examination of the overall system governing how government officials deal with charities specifically, or with respect to outside interests generally.  Indeed, although public officials are within the scope of the inquiry, the investigation of them depends upon whether they have had dealings with the named individuals, neither of whom are public officials.

 

    This inquiry is not anchored in s. 92(4) , (7) , (13)  or (16)  of the Constitution Act, 1867 .  Neither the terms of reference nor the background facts leading up to the inquiry indicate that the inquiry was designed to restore confidence in the integrity and institutions of government or to review the regime governing the conduct of public officials.  Any such objectives were clearly incidental to the central feature of the inquiry, which was the investigation and the making of findings of fact in respect of named individuals in relation to a specific criminal offence.

 

    The Commissioner, while specifically prevented from making a determination of criminal responsibility, could nevertheless do so by implication.  A finding of intent, once the findings of fact are made regarding the existence of dealings and benefits, is almost an irresistible inference.  It is a reasonable inference that persons can be presumed to have intended the natural consequences of their acts.  The Commissioner need not make findings of guilt in the true sense of the word for the inquiry to be ultra vires the province.  It suffices if the inquiry is in effect a substitute police investigation and preliminary inquiry into a specific allegation of criminal conduct by named, private citizens.  The investigation the Commissioner is asked to undertake, and the findings of fact he will make as a result of his investigation, place him in a similar position as a judge conducting a preliminary inquiry under s. 535  of the Criminal Code .  In essence the inquiry is entering into the preliminary stages of the judicial criminal process by taking evidence, determining its sufficiency and ultimately deciding whether a prima facie case exists against either or both Starr and Tridel Corporation Inc.

 

    Per L'Heureux‑Dubé J. (dissenting):  The constitutional validity of the inquiry, from a division of powers standpoint, was not displaced by the facts that two private individuals were named, that there was a striking resemblance between the terms of reference and s. 121(1) (b) of the Criminal Code , and that a police investigation was being conducted concurrently with it.  This conclusion is urged by the context in which this inquiry was ordered and its scope, the terms of the Order in Council, and the previous decisions of this Court.

 

    The profound concern about alleged improprieties against government officials and employees extended far beyond the appellants and provided the necessary framework of the commission's mandate.

 

    Both the legislation under which the commission was authorized and the Order in Council itself are intra vires the province.  Four separate heads of power anchor the provincial interest:  (1) s. 92(4):  the establishment and tenure of provincial offices and the appointment of provincial officers; (2) s. 92(7):  the establishment, maintenance, and management of charities; (3) s. 92(14):  the administration of justice within the province; and (4) s. 92(16) matters of a merely local or private nature in the province.  No head of power, however, supports a federal inquiry to investigate the conduct of provincial government officials.

 

    The commission's terms of reference are broad and encompass a great number of individuals, corporations, and public officials.  The wording, which is standard for commissions of inquiry, neither refers to nor duplicates the Criminal Code  or any other federal statute.  Reference to specific individuals only provides a necessary frame of reference so that the commission can properly define its function.  The sole fact that individuals are named cannot render the Order in Council constitutionally infirm.

 

    The terms of reference do not invade the federal criminal law power, notwithstanding its similarities to s. 121  of the Criminal Code .  Indeed any resemblance is immaterial.  Section 121 serves as a prohibition carrying potential penal consequences.  The terms of reference serve only to define the scope of an investigation which is expressly prohibited from making criminal findings.  An otherwise constitutional provincial inquiry cannot be barred absolutely by the possibility of subsequent prosecution.

 

    Functional and practical differences exist between commissions of inquiry and the criminal law processes of preliminary inquiries or laying of informations.  The latter are clearly incidental to criminal prosecution.  Specific individuals are targeted for the express and exclusive purpose of indicting them.  Commissions of inquiry perform a different role.  They may, as here, name an individual for the purposes of identifying the general investigative objective of the inquiry and of defining its scope.

 

    Regardless of how closely the terms of reference parallel s. 121  of the Criminal Code , it is the purpose and effect rather than the strict enabling language of the commission that must be considered.  The powers conferred upon this commission do not carry penal consequences.  The fear of provincial incursion into a strictly federal sphere never comes into play here.

 

    Several aspects of the inquiry, such as the naming of individuals, the use of language resembling a Criminal Code  provision, or a concurrent police investigation, are all independently intra vires.  "Stacking" them to define the scope of the inquiry does not amount to an invasion of the criminal law power.  Such a principle of superimposition does not exist and, even if it did, would not properly apply to commissions of inquiry.  More is required in order to affix the label of unconstitutionality to an otherwise intra vires proceeding.  Here nothing short of a criminal investigation would do, and that is not what this inquiry is all about.

 

    The remote and latent risk of "colourability" should not impede legitimate provincial objectives.  The task of complying with the prohibition against drawing conclusions as to responsibility, criminal or civil, is not impossible.  The presumption ought to be in favour of validity.

 

    This commission is not a substitute police investigation and preliminary inquiry into a specific allegation of criminal conduct by named, private citizens; the coercive component is entirely different and there is no threat of incarceration.  There is no lis between the state and accused persons; there are no accused.  Indeed, the only thing that this commission of inquiry is definitively prohibited from doing is expressing any conclusion of law regarding the civil or criminal responsibility of any individual or organization.

 

    The constitutionality of this inquiry is supported by the case law.  Functionally, the Houlden Commission is indistinguishable from those commissions that withstood constitutional attack in R. v. Faber, Di Iorio v. Warden of the Montreal Jail, Attorney General (Que.) and Keable v. Attorney General (Can.), and O'Hara v. British Columbia.  The semantic arguments used to distinguish the present case from this Court's precedents are not sufficient to displace the presumption of constitutional validity.

 

    The combination of the internal limitations on the inquiry's scope and existing procedural safeguards designed to preserve fundamental justice ensures that the Canadian Charter of Rights and Freedoms  has not been infringed.

 

    Any challenge based on ss. 7 , 11  and 13  of the Charter  is inapposite because of the non‑trial nature of the inquiry.

 

    The right to life, liberty, and security of the person is not infringed in a manner contrary to fundamental justice for much the same reason that the commission is intra vires the province.  The alleged infringement of s. 7 cannot be sustained as the commission is solely a recommendatory and not an adjudicative body.  Determinations as to guilt or innocence, or civil or criminal liability, are specifically excluded from its functional description.  Any prospective threat to liberty, therefore, is purely speculative.  Given compliance with the principles of fundamental justice, the rights set out in s. 7  of the Charter  would be unduly extended if state‑linked stress, anxiety, or threat to reputation were found to violate the security of the person when an individual is not charged or accused.

 

    Section 11( c )  of the Charter  preserves the non‑compellability of an accused, while the other use‑immunity provisions prevent testimony compelled in any proceedings from being used to incriminate the witness in any subsequent civil or criminal proceedings.  The invocation of these protective provisions is premature.  The mere fact that some subsequent criminal proceeding may take place is far too fragile a hook on which to hang a Charter  violation.

 

Cases Cited

 

By Lamer J.

 

    Considered:  Re Nelles and Grange (1984), 46 O.R. (2d) 210; Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Attorney General (Que.) and Keable v. Attorney General (Can.), [1979] 1 S.C.R. 218; O'Hara v. British Columbia, [1987] 2 S.C.R. 591; Faber v. The Queen, [1976] 2 S.C.R. 9; R. v. Hoffmann‑La Roche Ltd. (1981), 33 O.R. (2d) 694; Cock v. Attorney-General (1909), 28 N.Z.L.R. 405; referred to:  Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; Attorney-General for Alberta v. Attorney-General for Canada (Alberta Bank Taxation Reference), [1939] A.C. 117; R. v. Cooper, [1978] 1 S.C.R. 860; R. v. Brown (1956), 116 C.C.C. 287; United States of America v. Shephard, [1977] 2 S.C.R. 1067.

 

By L'Heureux‑Dubé J. (dissenting)

 

    Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Re Nelles and Grange (1984), 46 O.R. (2d) 210; Re Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (1978), 94 D.L.R. (3d) 365; Faber v. The Queen, [1976] 2 S.C.R. 9; Attorney General (Que.) and Keable v. Attorney General (Can.), [1979] 1 S.C.R. 218; R. v. Vermette, [1988] 1 S.C.R. 985; O'Hara v. British Columbia, [1987] 2 S.C.R. 591; R. v. Nixon, British Columbia Supreme Court, October 6, 1989, Vancouver No. CC890587; R. v. Hoffmann‑La Roche Ltd. (1981), 33 O.R. (2d) 694; R. v. Amway Corp., [1989] 1 S.C.R. 21; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Lyons, [1987] 2 S.C.R. 309.

 

Statutes and Regulations Cited

 

Canada Evidence Act , R.S.C., 1985, c. C-5 , s. 5(2) .

 

Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 8 , 9 , 10 , 11( c ) , (d), 12 , 13 , 14 .

 

Constitution Act, 1867 , ss. 91(27) , 92(4) , (7) , (13) , (14) , (16) .

 

Criminal Code , R.S.C., 1985, c. C‑46 , ss. 119 , 121 , 535 , 548 .

 

Election Finances Reform Act, R.S.O. 1980, c. 134.

 

Members' Conflict of Interest Act, 1988, S.O. 1988, c. 17, s. 14.

 

Public Inquiries Act, R.S.O. 1980, c. 411, ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11.

 

Authors Cited

 

Canada.  Law Reform Commission.  Report 13.  Report on Advisory and Investigatory Commissions.  Ottawa:  Law Reform Commission, 1979.

 

Canada.  Law Reform Commission.  Working Paper 17.   Administrative Law:  Commissions of Inquiry.  Ottawa:  Law Reform Commission, 1977.

 

Christie, Innis and Paul Pross.  Introduction to Commissions of Inquiry.  Toronto:  Carswells, 1990.

 

Grange, Samuel.  "How Should Lawyers and the Legal Profession Adapt?" (1990), 12 Dal. L.J. 151.

 

Hogg, Peter W.  Constitutional Law of Canada, 2nd ed.  Toronto:  Carswells, 1985.

 

Le Dain, Gerald E. "The Role of the Public Inquiry in our Constitutional System", in Jacob S. Ziegel (ed.), Law and Social Change.  Toronto:  Osgoode Hall Law School/York University, 1973.

 

Lockwood, Thomas J.  "A History of Royal Commissions" (1967), 5 Osgoode Hall L. J. 172.

 

Macdonald, R. A.  "The Commission of Inquiry in the Perspective of Administrative Law"  (1980), 18 Alta. L. Rev. 366.

 

MacKay, A. Wayne.  "Mandates, Legal Foundations, Powers and Conduct of Commissions of Inquiry" (1990), 12 Dal. L.J. 29.

 

Maillet, Lise.  Provincial Royal Commissions and Commissions of Inquiry, 1867‑1982:  A Selective Bibliography.  Ottawa:  National Library of Canada, 1986.

 

Ontario.  Legislative Assembly of Ontario.  Hansard.  Official Report of Debates.  Second Session, 34th Parliament.  Toronto:  Legislative Assembly of Ontario, 1989.

 

Sellar, Watson.  "A Century of Commissions of Inquiry" (1947), 25 Can. Bar Rev. 1.

 

    APPEAL from a judgment of the Ontario Court of Appeal (1990), 71 O.R. (2d) 161, 64 D.L.R. (4th) 285, dismissing an appeal from a judgment of the Divisional Court (1989), 70 O.R. (2d) 408, 62 D.L.R. (4th) 702.  Appeal allowed, L'Heureux‑Dubé J. dissenting.

 

    A. M. Cooper, Q.C., and Peter West, for the appellant Patricia Starr.

 

    Earl A. Cherniak, Q.C., Mary Anne Sanderson and Martin I. Applebaum, Q.C., for the appellant Tridel Corporation Inc.

 

    Alan D. Gold, for the appellant Mario Giampietri.

 

    Gina S. Brannan, for the appellant Gordon Ashworth.

 

    John W. Brown, Q.C., Kathryn N. Feldman and J. A. Prestage, for the respondent The Honourable Mr. Justice Lloyd W. Houlden, Commissioner.

 

    Dennis R. O'Connor, Q.C., and Freya J. Kristjanson, for the respondent the Government of Ontario.

 

//Lamer J.//

 

    The judgment of Dickson C.J. and Lamer, La Forest, Sopinka, Gonthier and Cory JJ. was delivered by

 

    LAMER J. --

 

I.  Facts

 

    This appeal raises constitutional issues dealing with both the division of powers between the federal and provincial levels of government and with the rights of individuals under the Canadian Charter of Rights and Freedoms  in the context of a public inquiry established by the province of Ontario.

 

    Patricia Starr was the President and Chairperson of the Board of the Toronto section of the National Council of Jewish Women in Canada, a registered charitable organization.  A number of newspaper articles, specifically one appearing in the Globe & Mail on February 15, 1989, alleged that Ms. Starr made contributions from the coffers of the charity to political parties.  The article also referred to an association between Ms. Starr and Tridel Corporation Inc., a real estate development corporation.  Allegations and speculation about the relationship between Ms. Starr, the charity and various public officials, elected and unelected, continued to mount both in the media and in the Legislative Assembly.  As a result, a number of investigations were instituted by the province, including ones by the Commission on Election Finances to look into possible breaches of the Election Finances Reform Act, R.S.O. 1980, c. 134, the Conflict of Interest Commissioner to look into conflicts of interest regarding members of the Legislature and one by the Ontario Provincial Police into possible breaches of the criminal law or any other provincial statute.  These were announced by the Attorney General, as acting Solicitor General, on June 12, 1989.

 

    On June 22, 1989, Gordon Ashworth, the Executive Director of the Premier's Office, resigned his position after revealing that in September of 1987 Ms. Starr had arranged for his family to receive a new refrigerator and to have their house painted at no cost to himself.  The next day, June 23, 1989, the Premier announced that he ordered a public inquiry into the facts surrounding the relationships between Patricia Starr, any person or corporation she may have acted for, including Tridel, and any elected and appointed officials, including Gordon Ashworth. I quote the following excerpts from the Premier's statement on that day:

 

    The recent allegations are deeply disturbing and profoundly worrisome.  I am very troubled by this situation and I think that it is essential that there be an immediate and independent public inquiry to get to the bottom of it.

 

    I am determined that in the carrying out of this inquiry, that no stone be left unturned, that every lead be followed up on, that every allegation be thoroughly and exhaustively investigated until all of the facts have been laid bare before us. . . .

 

    Nothing is more important than the public trust.  I will do everything in my power to ensure that it is protected.

 

    I believe very strongly that the democratic system depends on the public's trust and faith in the integrity of their public officials. . . .

 

    Most importantly, public officials must be open to public scrutiny, and in doing so must be found to be beyond reproach, and acting in accordance with the highest ethical standards.

 

    I am confident that this judicial inquiry will uncover those who have not functioned in this manner.

 

    I give you my personal assurance that those whose performance has been found wanting will be discovered, those who have erred will be punished, and those who have broken the law will be prosecuted.

 

    By Order in Council dated July 6, 1989, a commission of inquiry was appointed pursuant to the Public Inquiries Act, R.S.O. 1980, c. 411.  The Order in Council provided for the appointment of the Honourable Mr. Justice Lloyd W. Houlden as Commissioner under the following terms of reference:

 

WHEREAS by an Act entitled the Public Inquiries Act, R.S.O. 1980, Chapter 411, it is enacted that whenever the Lieutenant Governor in Council considers it expedient to cause inquiry to be made concerning any matter that he declares to be of public concern and such inquiry is not regulated by any special law, he may, by commission appoint one or more persons to conduct such inquiry and may confer the power of summoning any person and requiring him or her to give evidence [under] oath and to produce such documents and things as the Commissioner or Commissioners deems requisite for the full investigation of the matters into which he or they are appointed to examine;

 

AND WHEREAS the Lieutenant Governor in Council considers it expedient to cause inquiry to be made into the matter hereinafter set out which he declares to be of public concern;

 

AND THEREFORE, pursuant to the said Public Inquiries Act, R.S.O. 1980, Chapter 411, a Commission be issued appointing the Honourable Justice Lloyd W. Houlden who is, without expressing any conclusion of law regarding the civil or criminal responsibility of any individual or organization:

 

1)to investigate:

 

(i)the nature and extent of the dealings between Patricia Starr and elected and unelected public officials;

 

(ii)the nature and extent of the dealings between Patricia Starr and private individuals, corporations, unincorporated bodies and charities in relation to elected and unelected public officials;

 

(iii)the nature and extent of the dealings between Tridel Corporation; companies related to Tridel Corporation; representatives, officers, employees or officials of Tridel Corporation; representatives, officers, employees or officials of companies related to Tridel Corporation, and elected and unelected public officials;

 

(iv)the nature and extent of the dealings between Tridel Corporation; companies related to Tridel Corporation; representatives, officers, employees or officials of Tridel Corporation; representatives, officers, employees or officials of companies related to Tridel Corporation and private individuals, corporations, unincorporated bodies and charities in relation to elected and unelected public officials.

 

2)to inquire into and report upon any such circumstances or dealings where, in the opinion of the Commissioner, there is sufficient evidence that a benefit, advantage or reward of any kind was conferred upon an elected or unelected public official or upon any member of the family of any elected or unelected public official, or where, in the opinion of the Commissioner, there is sufficient evidence that there was [an] agreement or attempt to confer a benefit, advantage or reward of any kind upon an elected or unelected public official or upon any member of the family of an elected or unelected public official.

 

AND THAT nothing set out above shall be taken as in any way limiting the right of the Commissioner to petition the Lieutenant Governor in Council to expand the terms of reference to cover any matter that he may deem necessary as a result of information coming to his attention during the course of the investigation or inquiry,

 

AND THAT all Government Ministries, Boards, Agencies and Commissions shall assist the Commissioner to the fullest extent in order that he may carry out his duties and functions, and that he shall have authority to engage such counsel, investigators and other staff as he deems it proper at rates of remuneration and reimbursement to be approved by the Management Board of Cabinet in order that a complete and comprehensive report may be prepared and submitted to the Government,

 

AND THAT the Ministry of the Attorney General will be responsible for providing administrative support to the Inquiry,

 

AND THAT Part III of the said Public Inquiries Act be declared to apply to the aforementioned Inquiry.

 

The inquiry started on September 18, 1989.  An application by Rogers Cable Television to broadcast the proceedings in their entirety was granted, although it was opposed by the appellants.  After an opening statement by the Commissioner, he was asked, but refused, to state a case dealing with the competence of the province to establish the inquiry and its potential effects on individual rights at common law and under the Charter .  The Divisional Court of Ontario was asked by the appellants, pursuant to s. 6 of the Public Inquiries Act, to direct the Commissioner to state a case.  The Divisional Court heard the application and determined the case on its merits, dismissing the application.  Leave to appeal was granted by the Court of Appeal for Ontario.  The Commissioner stayed the proceedings of the inquiry after leave to appeal to the Court of Appeal was granted.  The Court of Appeal dismissed the appeal.  Leave to appeal was granted by this Court on January 26, 1990.

 

II.  Legislation

 

Public Inquiries Act, R.S.O. 1980, c. 411, ss. 1 to 11

 

    1.  In this Act,

 

(a)"commission" means the one or more persons appointed to conduct an inquiry under this Act;

 

(b) "inquiry" means an inquiry under this Act.

 

                                                                      PART I

 

    2.  Whenever the Lieutenant Governor in Council considers it expedient to cause inquiry to be made concerning any matter connected with or affecting the good government of Ontario or the conduct of any part of the public business thereof or of the administration of justice therein or that he declares to be a matter of public concern and the inquiry is not regulated by any special law, he may, by commission, appoint one or more persons to conduct the inquiry.

 

    3.  Subject to sections 4 and 5, the conduct of and the procedure to be followed on an inquiry is under the control and direction of the commission conducting the inquiry.

 

    4.  All hearings on an inquiry are open to the public except where the commission conducting the inquiry is of the opinion that,

 

(a)matters involving public security may be disclosed at the hearing; or

 

(b) intimate financial or personal matters or other matters may be disclosed at the hearing that are of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public,

 

in which case the commission may hold the hearing concerning any such matters in camera.

 

    5.--(1)   A commission shall accord to any person who satisfies it that he has a substantial and direct interest in the subject-matter of its inquiry an opportunity during the inquiry to give evidence and to call and examine or to cross-examine witnesses personally or by his counsel on evidence relevant to his interest.

 

    (2)  No finding of misconduct on the part of any person shall be made against him in any report of a commission after such an inquiry unless that person had reasonable notice of the substance of the misconduct alleged against him and was allowed full opportunity during the inquiry to be heard in person or by counsel.

 

    6.--(1)  Where the authority to appoint a commission under this Act or the authority of a commission to do any act or thing proposed to be done or done by the commission in the course of its inquiry is called into question by a person affected, the commission may of its own motion or upon the request of such person state a case in writing to the Divisional Court setting forth the material facts and the grounds upon which the authority to appoint the commission or the authority of the commission to do the act or thing are questioned.

 

    (2)  If the commission refuses to state a case under subsection (1), the person requesting it may apply to the Divisional Court for an order directing the commission to state such a case.

 

    (3)  Where a case is stated under this section, the Divisional Court shall hear and determine in a summary manner the question raised.

 

    (4)  Pending the decision of the Divisional Court on a case stated under this section, no further proceedings shall be taken by the commission with respect to the subject-matter of the stated case but it may continue its inquiry into matters not in issue in the stated case.

 

                                                                      PART II

 

    7.--(1)  A commission may require any person by summons,

 

    (a)to give evidence on oath or affirmation at an inquiry; or

 

    (b)to produce in evidence at an inquiry such documents and things as the commission may specify,

 

relevant to the subject-matter of the inquiry and not inadmissible in evidence at the inquiry under section 11.

 

    (2)  A summons issued under subsection (1) shall be in Form 1 and shall be served personally on the person summoned and he shall be paid at the time of service the like fees and allowances for his  attendance as a witness before the commission as are paid for the attendance of a witness summoned to attend before the Supreme Court.

 

    8.  Where any person without lawful excuse,

 

    (a)on being duly summoned under s. 7 as a witness at inquiry, makes default in attending at the inquiry; or

 

    (b)being in attendance as a witness at an inquiry, refuses to take an oath or to make an affirmation legally required by the commission to be taken or made, or to produce any document or thing in his power or control legally required by the commission to be produced to it, or to answer any question to which the commission may legally require an answer; or

 

(c)does any other thing that would, if the commission had been a court of law having power to commit for contempt, have been contempt of that court,...

 

    9.--(1) A witness at an inquiry shall be deemed to have objected to answer any question asked him upon the ground that his answer may tend to criminate him or may tend to establish his liability to civil proceedings at the instance of the Crown or any other person, and no answer given by a witness at an inquiry shall be used or be receivable in evidence against him in any trial or other proceedings against him thereafter taking place, other than a prosecution for perjury in giving such evidence.

 

    (2)  A witness shall be informed by the commission of his right to object to answer any question under section 5  of the Canada Evidence Act .

 

    10.  A commission may admit at an inquiry evidence not given under oath or affirmation.

 

    11.  Nothing is admissible in evidence at an inquiry that would be inadmissible in a court by reason of any privilege under the law of evidence.

 

Criminal Code , R.S.C., 1985, c. C-46 , s. 121(1) (b)

 

    121.  (1)  Every one commits an offence who

 

                                                                          . . . 

 

(b)  having dealings of any kind with the government, pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which he deals, or to any member of his family, or to any one for the benefit of the employee or official, with respect to those dealings, unless he has the consent in writing of the head of the branch of government with which he deals, the proof of which lies on him;

 

Constitution Act, 1867 , ss. 91(27) , 92(4) , (7) , (13)  and (16) 

 

    91.  It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, --

 

27.  The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

 

    92.  In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say, --

 

                                                                          . . .

 

4.  The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.

 

                                                                          . . .

 

7.  The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals.

 

                                                                          . . .

 

13.  Property and Civil Rights in the Province.

 

                                                                          . . .

 

16.  Generally all Matters of a merely local or private Nature in the Province.

 

Canadian Charter of Rights and Freedoms ,  ss. 1 , 7 , 8 , 11( c )  and (d) and 13 

 

    1.  The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

    7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

    8.  Everyone has the right to be secure against unreasonable search or seizure.

 

    11.  Any person charged with an offence has the right

 

                                                                          . . .

 

(c)  not to be compelled to be a witness in proceedings against that person in respect of the offence;

 

(d)  to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

 

    13.  A witness who testifies in any proceeding has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

 

III.  The Judgments

 

The Supreme Court of Ontario, Divisional Court

 

    The Divisional Court (1989), 70 O.R. (2d) 408, chose to hear the application for the Order directing a stated case as well as the merits of the stated case.  There were three issues before the Divisional Court.  They were considered by the Court in the following order, at pp. 411, 418 and 420:

 

1.Do the Terms of Reference violate the principles enunciated in the decision of the Ontario Court of Appeal in Re Nelles and Grange (1984), 46 O.R. (2d) 210?

 

2.Are the terms of reference unconstitutional as ultra vires the province and contrary to the Canadian Charter of Rights and Freedoms ?

 

3.Can the investigation proceed as part of the inquiry or is a two-stage procedure required?

 

    The Court began by noting that while the issues were framed in terms of the jurisdiction of the Commissioner to conduct a public inquiry under the provincial act, the underlying concern of the applicants was the balancing of the public's interest in the disclosure and exposure to the public of the conduct relevant to the good government of the province, and the due protection of the constitutional rights of the individual which might be prejudiced by the public nature of the inquiry.

 

    The first issue required the Court to consider the principles laid down in Re Nelles and Grange (1984), 46 O.R. (2d) 210.  That case dealt with a Royal Commission of Inquiry into certain mysterious baby deaths at the Hospital for Sick Children in Toronto between July 1980 and March 1981.  The terms of reference of the commission authorized the Commissioner, Grange J., without expressing "any conclusion of law regarding civil or criminal responsibility" to inquire into, report on, and make recommendations with respect to how and by what means the children died, and to inquire into, determine and report on the circumstances surrounding the investigation and prosecution of the nurse who was discharged after a preliminary inquiry.  In the course of the inquiry, the Commissioner stated the following question:  "Was I right in determining that I am entitled in my Report . . .  to express my opinion upon whether the death of any child was a result of the action, accidental or otherwise, of any named person or persons?"  The Court of Appeal held that the commissioner was prohibited from naming the person or persons responsible for causing the death of any of the children.

 

    In the case at bar, the Divisional Court considered the reasoning of the Court of Appeal in Re Nelles and Grange and concluded, at p. 416, that the case stood for the following proposition:

 

    The ratio of this decision is not that it would be improper to identify persons whose conduct the Commission was inquiring into or to criticize or absolve the conduct of a named person; what was prohibited was making findings of fact in the Commission's report that disclosed the elements of a criminal offence and in addition to name the person concerned because that would constitute an expression of the forbidden conclusion as to responsibility.

 

The Divisional Court rejected the appellants' argument that the commission could not comply with the prohibition on the expression of conclusions of law on criminal responsibility of any individual or organization for the offences under ss. 119  or 121  of the Criminal Code , supra.  In this regard the court stated, at p. 417, that:

 

    It is not correct to say that the Commission will be unable to make findings of fact without disclosing the elements of such an offence.  The conferring of a benefit on an elected or unelected public official is not of itself an offence.  Those sections provide narrow definitions of what constitutes criminal conduct.  For example, the donor must act "corruptly" and the element of mens rea must be established; or the benefit must be conferred as consideration for an unlawful or improper act.

 

    While recognizing that the Commissioner may find difficulty in complying with the prohibition against drawing conclusions as to responsibility, criminal or civil, we do not at present see the task as impossible.  To attempt to assess that factor without any evidence upon which the Commission may report, is in our opinion premature.  [Emphasis in original.]

 

    On the second issue, the court had little difficulty in concluding that the inquiry was in relation to a valid provincial matter, namely the relationship between provincial government officials, both elected and unelected and other named individuals and corporations.  Specifically, the court stated, at p. 418:

 

... it relates to matters of undoubted provincial concern and competence, namely the conduct of provincial public officials and persons dealing with them and the integrity of those officials and the process of provincial government itself.

 

The court was of the view that the inquiry was not an attempt to invade the federal field of criminal law and criminal procedure.  The inquiry was not rendered unconstitutional merely because it may incidentally embrace conduct that may be criminal or may lead to criminal charges.  As support for this conclusion, the Divisional Court cited a number of decisions including three from this Court:  Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; Attorney General (Que.) and Keable v. Attorney General (Can.), [1979] 1 S.C.R. 218 and O'Hara v. British Columbia, [1987] 2 S.C.R. 591.

 

    The Divisional Court went on to hold that the establishment of the inquiry did not infringe upon any of the rights guaranteed by the Charter .  The court noted that situations may arise during the course of the inquiry where the Charter  rights of a party or a witness would require protection.  The court held that these situations could be dealt with by the Commissioner as they arose.

 

    The third issue before the Divisional Court required an interpretation of the Order in Council itself.  The appellants argued that the terms of reference contemplated a two-stage process:  first, an investigation to determine whether there is sufficient evidence to proceed to an inquiry and second, only where the evidence placed before the Commissioner as a result of the investigation is such that he can form the opinion that sufficient evidence exists to warrant the entering into of the inquiry and report stage, can he then embark on the inquiry into such circumstances as he has decided warrant such inquiry.  This process would require a private, preliminary "screening" of the evidence before it is introduced in the public hearings.  The Divisional Court concluded that the suggested process was misconceived.

 

    First, it held that the process suggested by the appellants depends on the view that the statute, the Public Inquiries Act, creates three stages of operation -- investigation, inquiry and report.  This, according to the Divisional Court, is an untenable interpretation of the Act.  Section 2 of the Act authorizes the Lieutenant Governor in Council only to commission an inquiry.  An "inquiry" by definition includes the notion of an investigation and the statute implicitly contemplates that the Commissioner will report the findings of his investigation and inquiry.  The reference to "sufficient evidence" in the terms of reference is intended to make clear that evidence tendered in the inquiry must be cogent and not mere rumour or conjecture.  The decision whether the evidence is sufficient in this sense is to be made when it is tendered by counsel in the public inquiry.  That is different from requiring the Commissioner to undertake a review of the evidence in private before disclosing it in the public hearing.

 

    Second, to interpret the terms of reference as requiring a two-stage process would deprive the inquiry of its essentially public character.  The Divisional Court was of the view that the two-stage process would be subversive of the whole policy underlying the Public Inquiries Act, and would lead to a loss of public confidence in the procedure.  The court did concede that the language in the Order in Council was confusing.  The court, however, held that it should not strike it down if reasonable meaning can be given to it within the policy of the statute.  The Commissioner will have difficulty in some cases in making individual decisions as to admitting evidence tendered, but he must be left free to make his decisions on a case by case basis within the guidelines of the Act and the terms of reference.  If he exceeds his jurisdiction, then an aggrieved party has recourse to judicial review in the normal course.  The application, therefore, was dismissed.

 

Ontario Court of Appeal

 

    The Court of Appeal for Ontario (1990), 71 O.R. (2d) 161, agreed with the Divisional Court that in pith and substance the inquiry falls under provincial powers under s. 92(4), provincial officers and offices, s. 92(7), management of charities, s. 92(13), property and civil rights and s. 92(16), matters of a merely local or private nature in the province.  The inquiry is not a colourable attempt to conduct a police investigation.  With respect to the allegations of Charter  infringements, the Court held as follows, at pp. 166-67:

 

As far as s. 7 is concerned, the protection of "the principles of fundamental justice" is textually related to deprivation of "the right to life, liberty and security of the person":  Reference re: Section 94(2) B.C. Motor Vehicle Act, ... [1985] 2 S.C.R. 486 [at p. 500 and pp. 511-13].  Here, as is the practice with inquiries, the commissioner reports and recommends; he does not order.  As far as the Charter  protections of non-compellability and of the presumption of innocence are concerned, they are both set out in s. 11 -- paras (c) and (d) respectively -- and so are available to "any person charged with an offence", which is not the case with an inquiry, nor can it be.  If criminal charges are laid, their protections can be claimed at the trial, as can the protection of s. 13 against self-incrimination.  There is no question that the Charter  applies to inquiries, but none of the allegations made before us involve a Charter  infringement.

 

The more formidable problem, as the Court of Appeal saw it, was the form of the Order in Council itself, specifically the part that authorizes an inquiry into matters that bear a "striking resemblance" to s. 121(1) (b) of the Criminal Code .  The court first noted, however, that the Commissioner expressly stated that he was not going to allow the proceedings to develop into anything akin to a criminal trial.  Further, upon an examination of the Order in Council, the Court at pp. 169-70 saw what it called a "very important element" of the offence in s. 121 of the Code missing from the terms of reference:

 

Nowhere in term (2) of the terms of reference is there mention of the relationship between the "benefit, advantage or reward" and the "dealings" between the parties.  The importance of the link in establishing criminal responsibility was demonstrated in R. v. Cooper (1977), 74 D.L.R. (3d) 731, 34 C.C.C. (2d) 18, [1978] 1 S.C.R. 860 (S.C.C.).  It follows that the Commissioner could find dealings and a reward involving a named person or corporation and still not find facts expressing a conclusion of criminal responsibility.

 

Finally, the Court of Appeal rejected the "two-stage" process that the appellants suggested was mandated by the terms of reference.  The court agreed with the Divisional Court that such a process would be a radical departure from the ordinary conduct of commissions of inquiry and would be subversive to the policy of the Public Inquiries Act.

 

IV.  Issues

 

The following constitutional questions were stated by Wilson J. on February 5, 1990:

 

1.Is the Order in Council dated July 6, 1989, enacted pursuant to s. 2 of the Public Inquiries Act, R.S.O. 1980, c. 411, ultra vires the Province of Ontario as being a matter within the exclusive jurisdiction of the Parliament of Canada, pursuant to s. 91(27)  of the Constitution Act, 1867 ?

 

2.Does the Order in Council dated July 6, 1989 infringe or deny the rights guaranteed by ss. 7  to 14  of the Canadian Charter of Rights and Freedoms ?

 

3.If the Order in Council infringes or denies the rights guaranteed by ss. 7  to 14  of the Charter , is the Order in Council justified in accordance with s. 1  of the Charter  and therefore not inconsistent with the Constitution Act, 1982 ?

 

The appellants raise two additional issues:

 

1.  Do the Terms of Reference violate the principles enunciated in the decision of the Ontario Court of Appeal in Re Nelles and Grange (1984), 46 O.R. (2d) 210, because they require the Commissioner to investigate the conduct of named persons as to their civil or criminal responsibility while expressly prohibiting him from expressing any conclusions regarding their civil or criminal responsibility?

 

2.  If the Order in Council is constitutional, can the Inquiry proceed in the face of the ongoing police investigation, and is so, what procedure is mandated by the Order in Council and the necessity not to interfere with the rights guaranteed by the Charter ?

 

V.  Analysis

 

Introduction

 

    In light of the conclusion I reach on the first constitutional question stated by Wilson J., I need not pronounce upon the other issues raised in this appeal.  I am of the view that the province of Ontario has exceeded its jurisdiction by the manner in which it has framed this public inquiry.  Although it may not have intended this result, the province has created an inquiry that in substance serves as a substitute police investigation and preliminary inquiry with compellable accused in respect of a specific criminal offence under s. 121  of the Criminal Code .  This inquiry is, therefore, ultra vires the province as it is in pith and substance a matter related to criminal law and criminal procedure under the exclusive jurisdiction of Parliament pursuant to s. 91(27)  of the Constitution Act, 1867 .

 

    I begin with a few general comments on the approach to division of powers issues.  The first step in judicial review in the context of division of powers is to identify the "matter" of the law, in this case of the Order in Council establishing the inquiry.  This is done by looking for the dominant feature of the law, or to use the term of art, its "pith and substance".  Professor Hogg in Constitutional Law of Canada (2nd ed. 1985), at pp. 318-19, notes that pith and substance is determined by examining both the purpose and effect of the law.  In undertaking the characterization of a law the Court must consider the legislative scheme, judicial precedent and what Professor Hogg refers to at p. 323 as a "concept of federalism" comprised of the enduring values in the allocation of power between the two levels of government.  Once the matter or pith and substance of a law has been identified, it is necessary to assign it to a specific head of power under either s. 91  or s. 92  of the Constitution Act, 1867 .

 

    In this appeal the Court is asked to consider an Order in Council establishing a commission of inquiry to investigate and report on dealings between an individual and a corporation, Patricia Starr and Tridel Corporation Inc., and public officials and whether there is sufficient evidence to satisfy the Commissioner that a benefit was conferred on a public official.  In my view the terms of reference seem to envisage a two-step process that eventually narrows the scope of the inquiry.  In the first paragraph of the terms of reference, the Commissioner is to investigate the "nature and extent" of the dealings between Ms. Starr and Tridel Corporation Inc. and elected and unelected public officials.  This essentially asks the Commissioner to define broadly any dealings, if they exist, that the named individuals had with the public officials in any circumstances.  This task is to be completed independently of any consideration of whether benefits were conferred.  It is a broad mandate to locate and identify "dealings".  The second paragraph of the terms of reference asks the Commissioner to inquire into and report upon "any such circumstances or dealings", (dealings identified in paragraph 1 of the terms of reference), where, in his opinion, "there is sufficient evidence that a benefit . . . was conferred upon an elected or unelected public official".  I note that the only two named individuals in the terms of reference are Ms. Starr and Tridel Corporation Inc., and neither are public officials.

 

Division of Powers as it Relates to Commissions of Inquiry

 

    In order to analyze the scheme set up by the terms of reference of this inquiry, it is necessary to review the fairly extensive body of jurisprudence, mainly emanating from this Court, dealing with the constitutionality of provincial commissions of inquiry.  At the outset, it is worth noting that this Court has consistently upheld the constitutionality of provincial commissions of inquiry and has sanctioned the granting of fairly broad powers of investigation which may incidentally have an impact upon the federal criminal law and criminal procedure powers.  At the same time, however, this Court has consistently held that the power of the provinces to establish commissions of inquiry is not constitutionally unlimited.  This appeal requires this Court to re-examine what those limits are and to decide if this inquiry has ventured beyond the sphere of provincial competence.

 

    The first case that I wish to consider is Faber v. The Queen, [1976] 2 S.C.R. 9.  That case dealt with a coroner's inquest.  The appeal turned on the rather narrow issue of whether a civil court was without jurisdiction to hear the merits of a writ of prohibition sought against a coroner on the grounds that a coroner's inquest is a hearing into a criminal matter.  The majority decision of the Court was delivered by de Grandpré J. who concluded that the investigation of crime was only incidental to the predominant aspects of the inquest which were within the jurisdiction of the province.  At pages 30-31 of the majority decision, de Grandpré J. indicated what functions, apart from the investigation of crime, the coroner's inquest served:

 

(a)  identification of the exact circumstances surrounding a death serves to check public imagination, and prevents it from becoming irresponsible;

 

(b)  examination of the specific circumstances of a death and regular analysis of a number of cases enables the community to be aware of the factors which put human life at risk in given circumstances;

 

(c)  the care taken by the authorities to inquire into the circumstances, every time a death is not clearly natural or accidental, reassures the public and makes it aware that the government is acting to ensure that the guarantees relating to human life are duly respected.

 

In this situation, while the investigation of crime is important, it is not the determining aspect of the coroner's functions, with the result that the "criminal" aspect is not predominant.

 

    Furthermore, the proceeding itself is not as such concerned with the investigation of crime.  As has been indicated on several occasions,

 

(a)  the inquest is not a trial;

 

(b)  there is no accused.  [Emphasis added.]

 

In my view, the decision of de Grandpré J. demonstrates the proper approach to division of powers adjudication.  He correctly examined the coroner's inquest both in terms of purpose and effect, and concluded that it was not an improper intrusion into criminal law and criminal procedure.  As I read the decision of the majority the case stands for the proposition that coroners' inquests have a primary purpose other than the investigation of whether a specific crime was committed.

 

    The next significant case is Di Iorio v. Warden of the Montreal Jail, supra.  That case dealt with a provincial inquiry investigating organized crime in Quebec.  The appellants were found guilty of contempt for refusing to testify at the inquiry.  A majority of this Court upheld the constitutionality of the inquiry, although a number of judgments were delivered, a matter that makes it somewhat difficult to discern the ratio of the case.  Pigeon J. (Martland, Judson and Ritchie JJ. concurring), held at p. 192 that the Faber decision was determinative:

 

    In my view, the decision in Faber is conclusive against appellants' contention that the matter is "criminal". . . .  The conclusion reached in Faber cannot be viewed as proceeding on the basis that the detection of crime was not the principal object of the coroner's inquest.  The fact is that this was the sole object of the inquest at the particular time when the proceedings were initiated.

 

With the greatest of respect for the reasons of Pigeon J., I am of the view, as I stated above, that Faber stands for the principle that coroners' inquests are in substance concerned with matters other than the investigation of whether a specific crime was committed.  The reasons of Pigeon J. seem to suggest that Faber stands for the proposition that the provinces have the jurisdiction to set up an inquiry solely for the purpose of investigating whether a particular crime was committed.  That position is, with respect, a broader reading of Faber than is necessary, and one that is strictly speaking obiter since, on the facts of Di Iorio, the commission of inquiry was concerned with organized crime generally and not whether a specific crime was committed.

 

    I find support for my position in the reasons of Dickson J. (as he then was) in Di Iorio.  The reasons of Dickson J. were concurred in by Martland, Judson, Ritchie and Spence JJ., and therefore attracted the support of a majority of the Court.  Dickson J., at p. 217, found the Faber decision only "peripherally" helpful:

 

    Although the constitutionality of the Coroners' Act of Quebec was clearly not in issue, Mr. Justice de Grandpré did discuss the criminal nature of the inquest so as to decide the proper court for judicial review.  One should not unquestioningly transfer comments on "criminal law" in this context to criminal law in the constitutional context, although they can be of assistance.

 

As a result, Dickson J. explicitly addressed the central issue of the limits of provincial competence to establish commissions of inquiry with specific regard for the inquiry into organized crime before the Court.  At page 201 he stated:

 

    The Inquiry by its terms is directed into the activities of organizations and systems and to the ramifications of those organizations and systems and the persons involved, to the extent that those organizations or systems operate in areas notoriously inviting to organized crime. . . .

 

    The Inquiry does not act as a criminal court or exercise criminal jurisdiction.  The conduct of the Inquiry is not part of a criminal prosecution under the Criminal Code  nor is it an investigation into a particular crime or transaction which later might be the subject of a criminal charge.  We are not here concerned with a criminal trial, structured as a dispute between two sides, the Crown and the accused.  The function of the Inquiry is merely to investigate and report; no person is accused; those who appear do so as witnesses; there is no lis; there is no attempt to alter criminal procedure.  The proceedings of the Commission are not criminal proceedings in the sense that punishment is their aim.  The legislation under attack establishes an inquiry into the nature and prevalence of certain types of illegal conduct within the Province of Quebec. . . .  [Emphasis added.]

 

Furthermore, at p. 210 he stated that

 

... a valid distinction can be made between criminal procedure and an inquiry into criminal acts.  What is in issue here is an inquiry into specific matters encompassed by the term, Administration of Justice in the Province.  The Inquiry possesses purposes and functions which are separate and distinct from the procedures which accompany the investigation and prosecution in a criminal matter.  Accepting that police investigation of an individual must comply with federal standards of criminal procedure, it is not immediately apparent why an investigative overview of crime on a collective basis should be open to constitutional attack.  [Emphasis added.]

 

In my view, the decision of Dickson J. in Di Iorio is consistent with and demonstrates a similar conceptual approach as that of de Grandpré J. in Faber.  In both decisions the focus is on purposes and functions of the inquest and inquiry respectively that are distinct from the investigation and prosecution of specific crimes.

 

    This leads me to a consideration of the decision of this Court in Attorney General (Que.) and Keable v. Attorney General (Can.), supra.  That case dealt with a commission of inquiry empowered to investigate and report on various illegal acts allegedly committed by police forces, including the R.C.M.P.  It is significant that the commission was mandated to deal with, not only the general issue of R.C.M.P. wrongdoing, but also with specific acts including illegal entry, setting a fire and theft.  No names were mentioned in the terms of reference.  The Court upheld the constitutionality of the commission of inquiry, with Pigeon J. delivering the judgment of the majority.  Much of the judgment concerned the question of whether a provincial commission could investigate the administration of the R.C.M.P.  The answer of the majority was that it could not.  The judgment also dealt with the more general question of the constitutional limits of the inquiry.  In that regard, Pigeon J. held at p. 241 that

 

    On the other hand, it appears to me that the majority opinion in Di Iorio v. Warden of the Montreal Jail, 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. . .

 

In my view, having regard for my interpretation of Faber and Di Iorio, this passage from the decision of Pigeon J. should not be taken to mean that it is within provincial jurisdiction to directly investigate particular individuals in respect of their alleged commission of specific criminal offences.  I repeat that in Faber the ratio was that a coroner's inquest had purposes and functions that were not related to the investigation of crimes.  In Di Iorio, the majority position of Dickson J. stands for the view that the commission was not investigating specific criminal acts by specific individuals; it was mandated to investigate the general issue of organized crime in Quebec.  While Keable dealt with specific allegations of illegal acts by members of the R.C.M.P., there were no individuals named in the terms of reference and nor was the inquiry empowered to examine one specific crime allegedly committed by particular persons. I also note that in Keable the terms of reference of the commission empowered it to investigate certain specific "illegal or reprehensible acts" so that it could make recommendations to ensure that those acts would not be repeated by the R.C.M.P. in the future.  In that light, while the commission no doubt was empowered to inquire into certain potentially illegal activity, the inquiry's focus was on the more general issue of R.C.M.P. methods of investigation and wrongdoing in that context, a matter within provincial jurisdiction.

 

    I cannot leave the discussion of Keable without referring to the concurring reasons of Estey J. with whom Spence J. agreed.  His reasons are important since they, in my view, place the discussion of division of powers as it relates to provincial inquiries into a useful analytical framework, and are somewhat reflective of the position taken by Dickson J. in Di Iorio.  Estey J. begins with the proposition that Di Iorio did not go so far as to permit the invasion by provincial action of the sanctity of the right to remain silent during what is in effect a criminal investigation.  At pages 254-55 he states:

 

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

 

The key, according to Estey J., was where to draw the line.  While the province is within its jurisdiction to investigate allegations or suspicions of specific crime with a view to enforcement of the criminal law by prosecution of particular individuals, it must do so in accordance with federally prescribed criminal procedure and not otherwise, as for example, by the inquiry process.  Estey J. fleshed out this position in the following way, at p. 258:

 

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 specific criminal activities, the provincial action is authorized under s. 92(14).

 

    At this point of the analysis I should like to refer to a decision by the Court of Appeal for Ontario which provides further insight into the constitutional question raised by this appeal.  The case of R. v. Hoffmann-La Roche Ltd. (1981), 33 O.R. (2d) 694, concerned a prosecution for predatory pricing under the Combines Investigation Act, R.S.C. 1970, c. C-23.  Martin J.A. reviewed the three decisions by this Court that I have just analyzed and stated the following at p. 724:

 

    It is well established that a Province may create provincial agencies such as coroners, fire marshalls, securities commissions and commissions of inquiry and endow them with the power to summon witnesses and compel them to give evidence under oath in an inquiry conducted for a valid provincial purpose, notwithstanding that any witness required to give evidence may potentially be a defendant in a subsequent criminal proceeding. . . .

 

    The investigation of most crime is, however, conducted by the police acting principally under their common law powers and statutory powers of search and seizure and electronic surveillance, occasionally assisted in their investigation by the fruits of inquiries such as those mentioned above.  The police are entitled to question any person, whether suspected or not, in order to ascertain whether a crime has been committed, and if so, to discover the person who committed it.  The police, while they are entitled to question suspects have, in general, no power however, to compel answers.

 

    Notwithstanding the overlapping between s. 91(27) and s. 92(14), manifestly it would not be within provincial competence to enact legislation enabling a police officer to summon a suspect before an official and submit the suspect to compulsory examination under oath with respect to his involvement in a crime.  Even though such legislation might be described as legislation in relation to the investigation of offences and thus appear to fall within the category of the administration of justice, such legislation in pith and substance would be legislation in relation to criminal procedure and thus within the exclusive competence of Parliament.  [Emphasis added.]

 

Significantly, this overview by Martin J.A. was expressly endorsed by a majority of this Court in Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206, at p. 242.  In my view, the interpretation given by Martin J.A. to the trilogy of cases I have analyzed thus far is consistent with the thread flowing throughout all of them:  the inquiry process cannot be used by a province to investigate the alleged commission of specific criminal offences by named persons.  The use of the inquiry process in that way, having regard for the ability to coerce those named individuals to testify, would in effect be circumventing the criminal procedure which is within the exclusive jurisdiction of Parliament.

 

    My interpretation of the interplay between provincial inquiries and investigation of specific crimes has more recently been supported by the Ontario Court of Appeal in Re Nelles and Grange, supra.  This case concerned a provincial inquiry into certain baby deaths at a Toronto hospital.  While the effect of this decision has been raised as a separate ground of appeal by the appellants in the case at bar, I believe that it is of some note as regards the first constitutional question stated by this Court.  The issue, on a stated case, was whether the Commissioner, Grange J., could express an opinion on who was responsible, whether by intent or by accident, for the baby deaths.  In other words, to use the compendious expression, could he "name names"?  The court held that he could not.  In so deciding, the Court made the following important observation at pp. 215-16:

 

A public inquiry is not the means by which investigations are carried out with respect to the commission of particular crimes. . . Such an inquiry is a coercive procedure and is quite incompatible with our notion of justice in the investigation of a particular crime and the determination of actual or probable criminal or civil responsibility.

 

The court then quoted at length from the decision of Martin J.A. in Hoffmann-La Roche Ltd., supra, and went on to consider, at pp. 220-21, the effect of certain findings of fact, if made by the Commissioner:

 

What is important is that a finding or conclusion stated by the commissioner would be considered by the public as a determination and might well be seriously prejudicial if a person named by the commissioner as responsible for the deaths in the circumstances were to face such accusations in further proceedings.  Of equal importance, if no charge is subsequently laid, a person found responsible by the commissioner would have no recourse to clear his or her name. . . . Further, it is a reasonable inference that a person intends the natural consequences of his acts and such a finding as that referred to against a nurse in this case would leave nothing further to be said to amount to a conclusion forbidden by the Order in Council.

 

Although the constitutional validity of the Order in Council was not in issue, the interpretive limitations which were imposed by the Court were designed to ensure that it stayed within provincial jurisdiction.

 

    Finally, my analysis of judicial precedent ends with a review of the most recent decision of this Court in this area, O'Hara v. British Columbia, supra.  This case concerned a provincial inquiry investigating alleged injuries sustained by a prisoner while in custody at a police station.  A hearing under the provincial Police Act, R.S.B.C. 1979, c. 331, had cleared the police of any wrongdoing, and therefore the inquiry was established to investigate and report on, among other things, the factors surrounding the detention of the prisoner, how he sustained the injuries, who inflicted them and whether there were any irregularities or wrongdoing in respect of the hearing under the Police Act.  The only person named in the terms of reference was the prisoner.  The Chief Justice delivered the majority judgment of this Court upholding the constitutionality of the inquiry.  In so doing, he explicitly recognized, at p. 607, that "A province must respect federal jurisdiction over criminal law and criminal procedure".  The Chief Justice agreed with the decision of Legg J. of the British Columbia Supreme Court who held that s. 92(14) authorizes a province to establish an inquiry to investigate and report on alleged wrongdoing committed by members of a police force under its jurisdiction.  In this respect he went on to hold at pp. 607-08 that:

 

Section 92(14) not only authorizes the establishment of provincial commissions of inquiry in certain circumstances, but also grounds provincial jurisdiction over the appointment, control and discipline of municipal and provincial police officers.

 

Furthermore, at pp. 610-11 the Chief Justice expanded on the grounds for holding the inquiry to be within provincial competence by placing the discussion in the context of general division of powers adjudication:

 

A matter may well fall within the legitimate concern of a provincial legislature as pertaining to the administration of justice, and may, for another purpose, fall within the scope of federal jurisdiction over criminal law and procedure. . . .  Such is the case in the present appeal. . . .  A province has a valid and legitimate constitutional interest in determining the nature, source and reasons for inappropriate and possibly criminal activities engaged in by members of police forces under its jurisdiction.  At stake is the management of the means by which justice is administered in the province.  That such activity may later form the basis of a criminal charge and thus engage federal interests in criminal law and criminal procedure, does not, in my view, undermine this basic principle. . . . the present inquiry is aimed at getting to the bottom of an incident of police misconduct which has undermined the proper administration of justice.  The federal authorities have no jurisdiction over the discipline of the police officers who are the subject of the inquiry. . . .  The inquiry is mandated to investigate alleged acts of wrongdoing for purposes different from those which underlie criminal law and criminal procedure.  The purpose of the inquiry is not to determine criminal responsibility.  As such, it is no different from a coroner's inquiry, the constitutionality of which was affirmed by this Court in Faber, supra.

 

In my view, this passage from the judgment of the Chief Justice reconciles to a large extent the cases that have gone before in this area, while adhering to well established principles of adjudication in the context of division of powers.  The comments of the Chief Justice recognize that there may be a "double aspect" to a commission of inquiry.  There will be cases, however, where the Court is able to identify a predominant feature that outweighs the competing, incidental aspect.  In Keable for example, while the commission was empowered to investigate certain alleged criminal acts committed by police forces, its focus was on methods of police investigation, improprieties in relation thereto and recommendations for ensuring that the reprehensible acts were not repeated.  Similarly, in O'Hara the Chief Justice identified, at p. 610, the "management of the means by which justice is administered in the province" as the predominant feature of the inquiry.

 

    Additionally, the Chief Justice in O'Hara, while upholding an inquiry into a specific incident, the conclusions of which may have led to criminal charges, explicitly made clear that the inquiry was intra vires the province because it did not serve to affix criminal responsibility to a particular individual.  Rather, it was more generally concerned with police misconduct.  Of some note is the fact that in O'Hara a hearing under the Police Act in relation to the incident at issue exonerated the police of any wrongdoing.  There was no ongoing independent police investigation into possible criminal charges.  Finally, and in my view an element of the decision that is of great importance, is the following caveat found at pp. 611-12:

 

. . . a province may not interfere with federal interests in the enactment of and provision for a uniform system of criminal justice in the country as embodied in the Criminal Code .  An inquiry enacted solely to determine criminal liability and to bypass the protection accorded to an accused by the Criminal Code  would be ultra vires of a province, being a matter relating to criminal law and criminal procedure.  This limitation on provincial jurisdiction is an acknowledgement of the federal nature of our system of self-government.  [Emphasis added.]

 

This limitation is reminiscent of the language used by Dickson J. (as he then was) in Di Iorio, and that of Estey J. in his concurring reasons in Keable.  In sum then, the decision in O'Hara speaks as much to the limitations on provincial commissions of inquiry as it does to their breadth.  The judgment is a clear affirmation of the view that the pith and substance of a commission must be firmly anchored to a provincial head of power, and that it cannot be used either purposely or through its effect, as a means to investigate and determine the criminal responsibility of specific individuals for specific offences.

 

Application of the Principles to the Case at Bar

 

    Despite the length of the preceding analysis of jurisprudence, the applications of the principles to the present case are, in my view, quite straightforward.  I prefer at the outset to state my general conclusions.  In my view the commission of inquiry before this Court is, in pith and substance, a substitute police investigation and preliminary inquiry into a specific offence defined in s. 121  of the Criminal Code , alleged to have been committed by one or both of the named individuals, Patricia Starr and Tridel Corporation Inc.  This is not to say that an inquiry's terms of reference may never contain the names of specific individuals.  Rather, it is the combined and cumulative effect of the names together with the incorporation of the Criminal Code  offence that renders this inquiry ultra vires the province.  The terms of reference name private individuals and do so in reference to language that is virtually indistinguishable from the parallel Criminal Code  provision.  Those same terms of reference require the Commissioner to investigate and make findings of fact that would in effect establish a prima facie case against the named individuals sufficient to commit those individuals to trial for the offence in s. 121 of the Code.  The net effect of the inquiry, although perhaps not intended by the province, is that it acts as a substitute for a proper police investigation, and for a preliminary inquiry governed by Part XVIII of the Code, into allegations of specific criminal acts by Starr and Tridel Corporation Inc.  While public officials are involved within the scope of the inquiry, the investigation of them is defined in terms of whether they had dealings with Ms. Starr or Tridel Corporation Inc., and is therefore incidental to the main focus of the Commissioner's mandate.

 

    I now proceed to a detailed analysis providing support for these conclusions.  In pursuing this analysis, the proper place to start is with the terms of reference of the inquiry.  I note, once again, that a unique aspect of this inquiry is that the appellants, Ms. Starr and Tridel Corporation Inc., are named in the terms of reference.  This fact alone distinguishes the present case from the other cases this Court has had to decide.  Furthermore, there seems to be a complete absence of any broad, policy basis for the inquiry.  This is not, for example, a commission of inquiry into the relationship of charities and public officials.  There is no express mandate for the Commissioner to inquire into anything other than the specific allegations of the relationship between dealings by public officials with the two named individuals and any benefits that may have been conferred to the officials.  I recognize that the governing statute does refer to inquiries connected generally with the "good government of Ontario", and that the present inquiry's terms of reference includes the familiar limitation that the Commissioner cannot draw any conclusions as to criminal responsibility.  But surely it is from all the surrounding circumstances of the establishment of the inquiry and from the terms of reference themselves that this Court must determine whether in pith and substance the inquiry deals with a legitimate provincial concern.  As we know from general division of powers jurisprudence, form alone does not control characterization: Attorney-General for Alberta v. Attorney-General for Canada  (Alberta Bank Taxation Reference), [1939] A.C. 117.  It is in this regard that the doctrine of "colourability" comes into play.  The doctrine is invoked when a law looks as though it deals with a matter within jurisdiction, but in essence is addressed to a matter outside jurisdiction.  The following statement of Pigeon J. in Keable, supra, at p. 242, is especially apposite the present appeal:

 

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.

 

    The respondent argues that this inquiry falls within the language used by the Law Reform Commission of Canada in its Report 13, Advisory and Investigatory Commissions (1979).  At page 6 of its Report, the commission states:

 

    Investigatory commissions, like advisory commissions, supplement the mainstream institutions of government by performing tasks which these institutions may do less well.  Often investigatory commissions are examining government itself.

 

This observation is certainly pertinent in the context of many inquiries.  In Keable and O'Hara for example, both commissions of inquiry dealt with police misconduct, a matter that the criminal process may have difficulty dealing with because of the potential for conflict of interest.  Indeed, in O'Hara, an internal police investigation exonerated the police of any wrongdoing.  In the present inquiry, however, a police investigation was ongoing and there are no allegations on the record suggesting that the investigation was the subject of any political interference, or that it was having any difficulty in proceeding.  The respondent cites the statement of the Premier upon establishing the inquiry as support for a valid provincial purpose.  It is somewhat ironic that the Premier's statement would be used as support for the competence of the province to establish this inquiry since the Premier explicitly stated that part of the reason for creating the inquiry was to ensure that "those who have erred will be punished, and those who have broken the law will be prosecuted".  Further, from the record of the legislative debates it is clear that up until two days before the inquiry was established, the Premier rested on the fact that a number of independent investigations, including one by the provincial police force, were ongoing.

 

    Counsel for the Government of Ontario also argued that a broader policy objective is present in this inquiry that distinguishes it from a substitute police investigation.  He referred to public confidence in the behaviour and performance of public officials, elected and unelected, and to the integrity and sufficiency of the legal regime governing the conduct of civil servants and members of the Legislature.  Unfortunately, the terms of reference of the inquiry do not bear out this broader policy objective.  The terms of reference simply make no mention of an examination of the overall system governing how government officials deal with charities specifically, or with respect to outside interests generally.  Indeed, although public officials are within the scope of the inquiry, the investigation of them depends upon whether they have had dealings with the named individuals, neither of whom are public officials.

 

    In sum then, I find unpersuasive the argument that this inquiry is solidly anchored in s. 92(4) , (7) , (13)  or (16)  of the Constitution Act, 1867 .  There is nothing on the surface of the terms of reference or in the background facts leading up to the inquiry to convince me that it is designed to restore confidence in the integrity and institutions of government or to review the regime governing the conduct of public officials.  Any such objectives are clearly incidental to the central feature of the inquiry, which is the investigation and the making of findings of fact in respect of named individuals in relation to a specific criminal offence.  It is to that aspect of my analysis that I now turn.

 

    At the outset, I wish to emphasize that I do not rely on any one fact, viewed independently, to conclude that this particular inquiry is ultra vires the province.  The process of characterization in division of powers adjudication is not a formalistic or technical exercise.  Rather, the exercise is designed to identify the true nature and character of the law by looking at its overall purpose and effect.  Indeed, the characterization of a law demands a holistic  rather than a "check-list" approach.  In my view, there are two key facts, whose combined and cumulative effect, lead me to the conclusion that this inquiry is in effect a substitute criminal investigation and preliminary inquiry.  First, the only named parties are two private individuals, one being a corporation, who have been singled out for investigation.  Unlike O'Hara, where the named individual was the victim of alleged misconduct, the present inquiry names individuals who are the alleged perpetrators of the misconduct.  Second, the investigation of these two named individuals is in the context of a mandate that, as recognized by the Court of Appeal for Ontario, bears a "striking resemblance" to s. 121(1) (b) of the Criminal Code .  The Court of Appeal held that the crucial difference between the terms of reference and the Code provision rested in five words that are present in s. 121 but which are missing from the terms of reference.  An individual commits an offence under s. 121 if, having dealings of any kind with the government, he or she pays a commission or reward or confers a benefit upon an employee or official of the government with respect to those dealings.  The Court of Appeal reasoned that the terms of reference do not provide mandate for the Commissioner to determine whether the nexus between the dealings and the benefits exists.  The Court of Appeal concluded that since the Commissioner does not draw a conclusion as to whether a benefit was conferred with respect to the dealings of the named individuals and the public officials, no conclusion of law regarding criminal responsibility need be drawn.

 

    With the greatest of respect for the Court of Appeal, I cannot agree with its analysis.  The reasoning of the court simply does not, in my view, conform with what the terms of reference actually require the Commissioner to do.  First, the wording of the terms of reference makes it obvious that s. 121(1)(b) of the Code has virtually been incorporated into the mandate of the inquiry.  The language is simply too similar for any other conclusion to be drawn.  Second, the structure of the terms of reference itself suggests that a nexus exists between the dealings and benefits.  In the first paragraph of the terms of reference the Commissioner is asked to investigate the nature and extent of any dealings between Ms. Starr, Tridel Corporation Inc. and any elected or unelected public officials.  The second paragraph of the terms of reference asks the Commissioner to inquire and report on any such circumstances or dealings, i.e., dealings identified under the first paragraph, where, in his opinion, there is sufficient evidence that a benefit, advantage or reward of any kind was conferred upon an elected or unelected public official.  This may well lead to a conclusion of contemporaneity between the dealings and the benefits, an inference which, if unexplained, would clearly establish that the person having dealings with the official conferred a benefit with respect to those dealings. A plain reading of the terms of reference, in my view, clearly establishes that the conclusions drawn by the Commissioner will necessarily include a finding of a nexus between the dealings identified and any benefits that he finds were conferred to public officials.  That is, essentially, the offence defined by s. 121(1)(b).  It is true, as the Court of Appeal points out, that nowhere in paragraph two of the terms of reference are the specific words "with respect to the dealings" used.  But this is not to say that there is no relationship between dealings and benefits.  An analysis of the structure of the terms of reference reveals, in my respectful view, that the nexus is clearly there.

 

    This Court considered s. 121(1)(b) of the Code in R. v. Cooper, [1978] 1 S.C.R. 860.  A majority of the Court held that a necessary ingredient of the offence is proof of an intention to confer benefits with respect to the dealings between the individuals.  It could be argued that since the Commissioner is not asked to make findings of fact as regards the intent to confer benefits with respect to certain dealings, he is not determining criminal responsibility.  There are two responses to this argument.  First, a finding of the element of intent, once the findings of fact are made regarding the existence of dealings and benefits, is almost an irresistible inference.  It is a well known reasonable inference in our law that persons can be presumed to have intended the natural consequences of their acts.  For example, in R. v. Brown (1956), 116 C.C.C. 287, Laidlaw J.A. for a majority of the Court of Appeal for Ontario was prepared to draw the inference that an accused, charged with corruptly offering an agent a reward for doing or forbearing to do any act relating to the affairs of his principal, intended to contravene the provision solely from the act of giving the consideration.

 

    Second, it is not necessary for the Commissioner to make findings of guilt in the true sense of the word for the inquiry to be ultra vires the province.  It suffices if the inquiry is in effect a substitute police investigation and preliminary inquiry into a specific allegation of criminal conduct by named, private citizens.  In my view, the investigation the Commissioner is asked to undertake, and the findings of fact he will make as a result of his investigation, place him in a similar position as a judge conducting a preliminary inquiry under s. 535  of the Criminal Code .  Section 535 of the Code reads as follows:

 

    535.  Where an accused who is charged with an indictable offence is before a justice, the justice shall, in accordance with this Part, inquire into that charge and any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence taken in accordance with this Part.

 

The Commissioner in this inquiry is, like the judge under s. 535, empowered to inquire into an allegation, founded on facts that are disclosed by the evidence.  The "allegation" in the inquiry is framed in the terms of reference in language virtually identical to s. 121(1)(b) of the Code, linking Starr and Tridel Corporation Inc. to the alleged improper conduct.  Under s. 548 (formerly s. 475) of the Code, the judge is empowered, when all the evidence has been taken, to order the accused to stand trial if in his opinion there is sufficient evidence to put the accused on trial.  The duty imposed upon a judge in this section is the same as that governing a trial judge sitting with a jury in deciding whether the evidence is sufficient to justify the withdrawal of the case from the jury.  Thus, an accused should be committed for trial where there is admissible evidence which could, if believed, result in a conviction.  See United States of America v. Shephard, [1977] 2 S.C.R. 1067.  The Commissioner in the inquiry before this Court is asked to make findings where in his opinion there is sufficient evidence that benefits were conferred in respect of certain dealings between Starr, Tridel Corporation Inc. and public officials.  In my view, such findings, if made, would be sufficient to commit the named individual in the commission of inquiry for trial on a potential charge under s. 121(1)(b) of the Code.

 

    To allow this inquiry to continue as it is formulated, would result in the Commissioner's assimilating his role to that of judge presiding at a preliminary inquiry.  In essence the inquiry is entering into the preliminary stages of the judicial criminal process by taking evidence, determining its sufficiency and ultimately deciding whether a prima facie case exists against either or both Starr and Tridel Corporation Inc.  There is no doubt that a number of cases have held that inquiries whose predominant role it is to elucidate facts and not conduct a criminal trial are validly constituted even though there may be some overlap between the subject-matter of the inquiry and criminal activity.  Indeed, it is clear that the fact that a witness before a commission may subsequently be a defendant in a criminal trial does not render the commission ultra vires the province.  But in no case before this Court has there ever been a provincial inquiry that combines the virtual replication of an existing Criminal Code  offence with the naming of private individuals while ongoing police investigations exist in respect of those same individuals.  One of the implications for allowing the inquiry to go on in its present form is that the inquiry can compel a "witness" who is really one of the named "suspects" to answer questions under oath even though that person could not have been compelled to provide incriminating evidence against herself in the course of a regular police investigation, during the course of a preliminary inquiry under the Code (see s. 541) or during the course of a trial in which she is an accused.  Williams J. put the matter quite succinctly in Cock v. Attorney‑General (1909), 28 N.Z.L.R. 405, at p. 420:

 

In a Court of justice a person charged with an indictable offence cannot be called upon to give evidence.  A person charged before the Commission, however, can be called and examined as a witness, and if he refuses to be sworn and to answer he is liable to a penalty.

 

At issue in Cock was a commission of inquiry established to investigate allegations that as many as five members of a licensing committee, who were not members of the public service, had received bribes.  Williams J. held that the commission should be prohibited from continuing, and at p. 425 stated:

 

... an inquiry into the alleged misconduct of a public officer is authorised by the Act.  Such an inquiry is in order to ascertain whether he should be retained in the service, or dismissed, or be otherwise made subject to official discipline.  Although the alleged misconduct amounted in law to a crime the Commissioner might nevertheless investigate it, because it would be merely incidental to a legitimate inquiry and necessary for the purpose of that inquiry.  In the present case the real, and in effect the sole, object of the inquiry is to ascertain whether certain named individuals who occupy no official position have committed a specified offence.  The inquiry would be virtually a trial for the offence without the protection that the law gives to accused persons.

 

In my view, the words of Williams J. are apposite in the present appeal, and provide eloquent support for the conclusion that the inquiry before this Court is ultra vires the province because it is in pith and substance a substitute investigation and preliminary inquiry of named individuals for a specific criminal offence.  Counsel for the Government of Ontario suggested in oral argument that there were at least twenty-four provincial commissions of inquiry that either named individuals or involved investigations of criminal or potentially criminal activities.  He could not, however, point to any instance in which an inquiry singled out and named individuals that were then made the subject of an investigation to determine whether a prima facie case existed against them in respect of a specific criminal offence.

 

    There is no doubt that commissions of inquiry at both the federal and provincial level have played an important role in the regular machinery of government.  Their history is well documented by numerous authors: Lockwood, "A History of Royal Commissions" (1967), 5 Osgoode Hall L.J. 172; Le Dain, "The Role of the Public Inquiry in our Constitutional System", in Ziegel (ed.), Law and Social Change; Sellar, "A Century of Commissions of Inquiry" (1947), 25 Can. Bar Rev. 1; Macdonald, "The Commission of Inquiry in the Perspective of Administrative Law" (1980), 18 Alta. L. Rev. 366, and Christie and Pross, Introduction to Commissions of Inquiry.  Most authors seem to agree that public inquiries serve a number of functions including enabling government to secure information as a basis for developing or implementing policy, educating the public or legislative branch, investigating the administration of government and permitting the public voicing of grievances.  Investigatory commissions in particular serve to supplement the activities of the mainstream institutions of government.  The Law Reform Commission of Canada in its Working Paper 17, Administrative Law:  Commissions of Inquiry (1977) stated, at p. 20, that investigatory commissions

 

... possess an objectivity and freedom from time constraints not often found in the legislature.  They can deal with questions that do not require the application of the substantive law by the courts.  And they can reasonably investigate and interpret matters not wholly within the competence of Canada's various police forces.

 

It is clear, therefore, that provinces should be given ample room within their constitutional competence to establish public inquiries aimed at investigating, studying and recommending changes for the better government of their citizens.  What a province may not do, and what it has done in this case, is enact a public inquiry, with all its coercive powers, as a substitute for an investigation and preliminary inquiry into specific individuals in respect of specific criminal offences.  This is an interference with federal interests in the enactment of and provision for a system of criminal justice as embodied in the Criminal Code .  The net effect of such an inquiry is to bypass the protection accorded to an individual by the Criminal Code  and is accordingly ultra vires the province as being a matter relating to s. 91(27)  of the Constitution Act, 1867 .  This limitation on provincial competence has consistently been reiterated in decisions emanating from this Court that have upheld the constitutionality of other provincial public inquiries.  In substance, the present inquiry offends the principle that a province cannot compel a person to submit to questioning under oath with respect to her involvement in a suspected criminal offence for the purpose of gathering sufficient evidence to lay charges or to gather sufficient evidence to establish a prima facie case.  In short, the present inquiry circumvents the prescribed criminal procedure for conducting a police investigation and a preliminary inquiry, a matter governed by Part XVIII of the Criminal Code .  It falls, therefore, clearly outside a province's jurisdiction to establish an inquiry and equip it with coercive investigatory authority.  Accordingly, for all the foregoing reasons, I would declare the inquiry to be ultra vires the province.

 

VI.  Conclusion

 

    I would allow the appeal and answer the first constitutional question stated by this Court in the following way:

 

Q:Is the Order in Council dated July 6, 1989, enacted pursuant to s. 2 of the Public Inquiries Act, R.S.O. 1980, c. 411, ultra vires the Province of Ontario as being a matter within the exclusive jurisdiction of the Parliament of Canada, pursuant to s. 91(27)  of the Constitution Act, 1867 ?

 

A:Yes.

 

As a result, I need not pronounce upon the other constitutional questions or the other issues raised by the appellants.  There will be no order as to costs.

 

//L'Heureux-Dubé J.//

 

    The following are the reasons delivered by

 

    L'HEUREUX-DUBÉ J. (dissenting) -- I have had the advantage of reading the reasons for judgment of my colleague, Justice Lamer, and must respectfully disagree with his conclusion that the commission of inquiry's terms of reference, as set out in the Order in Council dated July 6, 1989, are ultra vires the province of Ontario.  My reasons are consonant with those reached by the Divisional Court and the Ontario Court of Appeal.  While I could rest my decision on the judgments of the courts below, I wish to add some comments, particularly on the issue of intra vires and provincial jurisdiction.

 

    As a preliminary remark, I would like to point out that neither my colleague nor any of the parties dispute the fact that commissions of inquiry have played a useful and necessary role in Canada.  Furthermore, commissions of inquiry are neither criminal proceedings nor trials.  As Dickson J. (now the Chief Justice) pointed out in Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152, at p. 201:

 

    The Inquiry does not act as a criminal court or exercise criminal jurisdiction.  The conduct of the Inquiry is not part of a criminal prosecution under the Criminal Code  nor is it an investigation into a particular crime or transaction which later might be the subject of a criminal charge.

 

I.  Division of Powers

 

    It will be readily apparent that my fundamental disagreement with my colleague rests on the characterization of the nature of this inquiry, its pith and substance.  My colleague concludes, at p. 000, that "the commission of inquiry ... is, in pith and substance, a substitute police investigation and preliminary inquiry into a specific offence defined in s. 121  of the Criminal Code ".  Lamer J. bases his conclusion on three contemporaneous factors:  that two private individuals are named; that there is a striking resemblance between the terms of reference and s. 121(1) (b) of the Criminal Code , R.S.C., 1985, c. C-46 ; and that a police investigation is being conducted concurrently with the inquiry.  In my view, these three elements, even taken together, do not serve to displace the constitutional validity from a division of powers standpoint.  This is so for the following reasons:  the context in which this inquiry was ordered and its scope; the terms of the Order in Council; and the previous decisions of this Court.

 

(a)  The Context and the Scope of the Inquiry

 

    As my colleague reviews the facts and the judgments of the courts below in great detail, I will not repeat them here.  This case, however, cannot be properly analyzed without exploring the political and practical realities out of which the inquiry was born.  It is essential to examine the context which precipitated this inquiry and the scope it enveloped.

 

    This saga began in the middle of February 1989 when the media began covering the story -- well before it was ever mentioned in the Ontario Legislature.  At that time the concern focused primarily around Ms. Starr, a public official who had been appointed Chairperson of Ontario Place.  A police investigation seemed to be an appropriate way to deal with the alleged improprieties.  The Acting Solicitor General so decided and informed the Legislature:

 

    The government is determined that there will be a full and comprehensive investigation with a mandate to inquire into all aspects of these allegations.  Therefore, I have today asked the commissioner of the Ontario Provincial Police to conduct a comprehensive investigation into contributions and expenditures made by Mrs Starr in connection with her activities with the National Council of Jewish Women of Canada.

 

    I have also appointed Peter Griffiths, the crown attorney in Etobicoke, to serve as special crown prosecutor in the matter.  Mr Griffiths will act as a legal advisor on an ongoing basis to the police investigators.

 

    The Ontario Provincial Police and the special prosecutor will have full authority to determine whether there have been breaches of the criminal law or any other provincial statute.  The police investigators will co-ordinate with the public trustee, the Commission on Election Finances and the conflict-of-interest commissioner, as well as with federal authorities, in determining the scope of their investigation.  [Emphasis added].

 

    Hon. Mr. Scott, Hansard, June 12, 1989, at p. 1135.

 

    However, it quickly became apparent that the matter was far from being so limited in its nature, scope, or effect.  The record reveals that the allegations intensified almost daily, from May 15, 1989 until the establishment of the inquiry.  Assertions were made that four cabinet ministers including the Minister of Culture and Communications, the Minister of Housing, the Minister of Industry, Trade and Technology and the Minister of Skills and Development, had received improper campaign contributions or other benefits from Ms. Starr.  As Opposition Leader Mr. Bob Rae commented:

 

    It is long overdue that this series of allegations, which are enormously important in terms of public trust -- of all the responsibilities one has in society, the trustees of a trust, those who are put in a position of trust, and I include public officials in this regard, are among the most important.  If there has been any diversion of charitable funds, or potentially charitable funds, into partisan political purposes and into the work of political lobbying, that is obviously something which is worthy of investigation and something which simply has to be rooted out and thoroughly investigated by public authorities.

 

    Mr. B. Rae, Hansard, June 12, 1989, at p. 1137.

 

    By June 19, 1989 several more members of the government had been accused, in the Legislative Assembly, of engaging in improper activities involving the Tridel Corporation Inc. and Ms. Starr.  Allegations were made that public funds, which were to be used to build or subsidize housing for the disabled, the elderly, and the poor, were diverted by a Liberal fund-raiser into a "slush fund".  Claims were made that money from the housing ministry had been diverted "to the political coffers of practically every Liberal that walked the face of the earth".  These were rather serious allegations, and undoubtedly called the integrity of public officials into question:

 

    I might add that up until this point, some nine cabinet ministers have now seen some financial assistance that has come from Ms Starr.  In light of the fact that all of this controversy is surrounding this individual, does it not appear to be reasonable that the people of Ontario be informed how Ms Starr was given the appointment -- two appointments in fact -- by the Ontario government, the final one being the chairmanship of Ontario Place?  How did that come to pass and who is responsible for it?

 

    Mr. Brandt, Hansard, June 19, 1989, at p. 1362.

 

    There were specific allegations that Ms. Oddie Munro, Minister of Culture and Communications, had asked that her mother receive a $5,000 contract from the NCJWC:

 

    The minister has admitted she recommended her mother for this work.  She has admitted she gave Mrs. Starr her mother's phone number.  Her ministry has a major relationship with Mrs. Starr.  Mrs. Starr was the recipient at one time of the gold medal of the Ministry of Citizenship and Culture.

 

    The minister knows this.  She has been involved with Mrs. Starr for a long time.  She has spoken at dinners for Mrs. Starr and said how wonderful a person she thinks she is and how highly she thinks of Patti Starr.  Patti Starr sends her mother a cheque for $5,000 for doing work that in any other organization would be done by volunteers and that in this organization is always done by volunteers.  Does the minister not recognize that she has behaved improperly?

 

    Mr. B. Rae, Hansard, June 19, 1989, at p. 1361.

 

    Concerns were raised about the effect that these allegations of political patronage and policy violations would have on the public's perception of the government.  It was claimed that the people of Ontario were "getting the clear message that certain people will be looked after if they are friends of the Premier [Mr. Peterson], members of cabinet or of the Ontario Liberal Party" and that "rules, policies and procedures are in place only to be broken":

 

    There is a pattern here of special influence.  There is a pattern here of hundreds of thousands of dollars, apparently going without any control or any adequate audit of funds, that were controlled by one person.

 

    Mr. B. Rae, Hansard, June 22, 1989, at p. 1562.

 

    Questions arose as to the value of an investigation by the Conflict of Interest Commissioner in light of s. 14 of the Members' Conflict of Interest Act, 1988, S.O. 1988, c. 17, which states that the opinion and recommendations of the Commissioner are confidential and will only be released on consent of the member involved.  Doubts about the efficacy of the investigation procedures implemented by the government were exacerbated by assertions that paper shredders were being used at Ontario Place to dispose of documents that might be of interest to those investigating the activities of the chairperson.

 

    By the eve of the Premier's announcement that a public inquiry would be constituted, it had become clear that many aspects of the provincial government might be involved.  The need for an examination of far greater proportions than those encompassed by the police investigation was evident. The nature and extent of the alleged improprieties would have to be explored, as well as whether existing controls were adequate.  Allegations that one of the Premier's aides had received benefits from Ms. Starr reinforced this concern.  On June 22, 1989, the appellant Gordon Ashworth, Executive Director of the Premier's Office since May 1985, resigned after he revealed that during September of 1987 Ms. Starr had arranged for his family to receive a new refrigerator and to have their house painted free of charge.  The Leader of the Opposition termed the situation "the largest financial scandal involving the electoral process in the recent history of this province":  Mr. B. Rae, Hansard, June 22, 1989, at p. 1563.

 

    It was against this background of events that, on June 23, 1989, the Premier announced that a public inquiry would be conducted into the incidents that had been the focus of public concern.  I believe that the Premier's remarks, when establishing the inquiry, reflected the broad public interests that were at stake:

 

    The recent allegations are deeply disturbing and profoundly worrisome.  I am very troubled by this situation and I think that it is essential that there be an immediate and independent public inquiry to get to the bottom of it.

 

    I am determined that in the carrying out of this inquiry, that no stone be left unturned, that every lead be followed up on, that every allegation be thoroughly and exhaustively investigated until all of the facts have been laid bare before us.

 

    There is no one more determined than I to ensure that all of the facts related to this matter are brought out into the open.

 

    Nothing is more important than the public trust.  I will do everything in my power to ensure that it is protected.

 

    I believe very strongly that the democratic system depends on the public's trust and faith in the integrity of their public officials.

 

    People must be confident that public officials -- all public officials -- whether elected or appointed -- are people of integrity.

 

    They must be confident that their officials are operating in an honest, impartial and objective manner -- free of prejudice, free of bias, free of unwarranted partisanship.

 

    Most importantly, public officials must be open to public scrutiny, and in doing so must be found to be beyond reproach, and acting in accordance with the highest ethical standards.

 

    I am confident that this judicial inquiry will uncover those who have not functioned in this manner.

 

    I give you my personal assurance that those whose performance has been found wanting will be discovered, those who have erred will be punished, and those who have broken the law will be prosecuted. [Emphasis in original.]

 

    These comments reflect the profound concern that had arisen in the province -- a concern extending far beyond the appellants before this Court.  This context provided the necessary framework of the commission's mandate.  The nature of the allegations made in the Legislative Assembly and the setting in which the inquiry was established clearly suggest the kind of inquiry well within provincial powers -- the investigation of numerous alleged improprieties against government officials and employees.

 

(b)  The Order in Council

 

    The disposition of this case also hinges on the characterization of the Order in Council and the enabling terms of reference establishing the commission at issue.  The Ontario Court of Appeal (1990), 71 O.R. (2d) 161, at p. 165, rejected the proposition that the provincial inquiry was in pith and substance a criminal investigation.  Adopting the clear language of the Divisional Court (1989), 70 O.R. (2d) 408, at p. 418:

 

The inquiry before us is in relation to a valid provincial matter, namely the relationship between provincial government officials both elected and unelected and other named individuals and corporations; it relates to matters of undoubted provincial concern and competence, namely the conduct of provincial public officials and persons dealing with them and the integrity of those officials and the process of provincial government itself.  In the language of s. 2 of the Act which is the authority for the inquiry, the subject-matter is "any matter connected with or affecting the good government of Ontario or the conduct of any part of the public business thereof...".

 

    This resonating endorsement of the provincial purpose requires no further embellishment.  As highlighted by the Court of Appeal, the provincial interest in this matter is incontrovertible, and constitutional support can be anchored in four separate heads of power under s. 92  of the Constitution Act, 1867 :

 

- 92(4):The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers;

 

- 92(7):The Establishment, Maintenance, and Management of. . . Charities, . . .

 

- 92(14):The Administration of Justice in the Province, [and]

 

- 92(16):. . . Matters of a merely local or private Nature in the Province.

 

Moreover, even if it had seen fit to do so, the Federal Government would have no jurisdictional basis to establish an inquiry to investigate the conduct of provincial government officials.

 

    The terms of reference of this Order in Council are explicitly authorized by the Public Inquiries Act, R.S.O. 1980, c. 411, which has not been impugned as being ultra vires the province.  Section 2 of the Act is quite broad:

 

    2.  Whenever the Lieutenant Governor in Council considers it expedient to cause inquiry to be made concerning any matter connected with or affecting the good government of Ontario or the conduct of any part of the public business thereof or of the administration of justice therein or that he declares to be a matter of public concern and the inquiry is not regulated by any special law, he may, by commission, appoint one or more persons to conduct the inquiry.

 

    The preamble of the Order in Council, enacted pursuant to the aforementioned provision, is perfectly clear:

 

AND THEREFORE, pursuant to the said Public Inquiries Act, R.S.O. 1980, Chapter 411, a Commission be issued appointing the Honourable Justice Lloyd W. Houlden who is, without expressing any conclusion of law regarding the civil or criminal responsibility of any individual or organization: [Emphasis added.]

 

The process of the inquiry must, of necessity, be governed by these specific limits imposed by the Legislature on the powers of the Commissioner.  Here the question must be asked:  How can the Commissioner determine criminal liability when he is specifically prohibited from making such findings?

 

    Analyzing the specifics of the terms of reference, Part 1 requires the Commissioner:

 

1)  to investigate:

 

(i)the nature and extent of the dealings between Patricia Starr and elected and unelected public officials;

 

(ii)the nature and extent of the dealings between Patricia Starr and private individuals, corporations, unincorporated bodies and charities in relation to elected and unelected public officials;

 

(iii)the nature and extent of the dealings between Tridel Corporation; companies related to Tridel Corporation; representatives, officers, employees or officials of Tridel Corporation; representatives, officers, employees or officials of companies related to Tridel Corporation, and elected and unelected public officials;

 

(iv)the nature and extent of the dealings between Tridel Corporation; companies related to Tridel Corporation; representatives, officers, employees or officials of Tridel Corporation; representatives, officers, employees or officials of companies related to Tridel Corporation and private individuals, corporations, unincorporated bodies and charities in relation to elected and unelected public officials.

 

    These parameters, while they do name certain individuals, are broad.  The nature and the extent of the inquiry encompass a great number of individuals, corporations, and public officials.  The wording is standard for commissions of inquiry and neither refers to nor duplicates the Criminal Code  or any other federal statute.  In addition, reference to specific individuals must also be viewed in light of all the terms of the Order in Council, including the preamble and the concluding conditions.  The named parties provide a necessary frame of reference and limit the inquiry so that it can properly perform its function.

 

    The Law Reform Commission of Canada, in its Working Paper 17, Administrative Law: Commissions of Inquiry (1977), at p. 31, discussed both the necessary context and the appropriate breadth of investigatory inquiries:

 

. . . whether a given matter is of [substantial public importance] should be evident.  Does it involve, for example, serious accusations of incompetence or venality in government itself?  Serious breakdown in the implementation or administration of an established government policy? ...

 

    The Cabinet . . . also should be careful to define strictly the operations of any particular commission in the order in council creating the commission.  A mandate should be quite specific and as narrow as is reasonable in the circumstances.  It is contrary to the principles of our form of government and system of law to permit unrestrained investigation. [Emphasis added.]

 

    With respect to the scope of this particular inquiry, it was suggested by the Opposition that a commission be established to:

 

. . . look into the whole relationship between the development and construction industries and governments in Ontario, municipal and provincial as well as federal, so that we can have some serious recommendations on the electoral process, political contributions, land use planning, speculation and land ownership, . . .

 

Mr. B. Rae, Hansard, June 28, 1989, at p. 1711.

 

The Premier's response was both measured and practical:

 

My honourable friend raises a number of policy questions, and I understand that.  Let me say that the Attorney General (Mr Scott) is reflecting on those broad terms of interest.  The member is aware of the suggestions made by certain people with respect to the nature of the inquiry, and I understand that.  But I think we could see an inquiry potentially going on for 10 or 20 years in that regard.

 

                                                                          . . .

 

    The judicial inquiry that we have called deals with a specific set of allegations and specific people.  It is not my intention to limit that, because if there is any suggestion of wrongdoing anywhere, obviously the commissioner should have the power to follow that up.  Allegations will be referred to him.  But I think that my friend would agree with me that it has to be in, shall we say, a manageable bite somehow or other.  We do not want this thing to go on for the next five or 10 years.  I am sure that is not my honourable friend's suggestion. [Emphasis added.]

 

    Hon. Mr. Peterson, Hansard, June 28, 1989, at pp. 1711-12.

 

    The concluding portion of the terms of reference remove much of the apprehension regarding the inquiry's breadth:

 

AND THAT nothing set out above shall be taken as in any way limiting the right of the Commissioner to petition the Lieutenant Governor in Council to expand the terms of reference to cover any matter that he may deem necessary as a result of information coming to his attention during the course of the investigation or inquiry, ...

 

    Therefore, Part 1 of the Order in Council falls squarely within the constitutional power of the province.  The sole fact that individuals are named cannot render the Order in Council constitutionally infirm.  As counsel for the respondent Government of Ontario pointed out in argument, at least twenty-four inquiries in Canada have dealt with specifically named persons being investigated for specific wrongdoing.  See Provincial Royal Commissions and Commissions of Inquiry, 1867-1982: A Selective Bibliography.

 

    The portion of the Order in Council that seems to have concerned my colleague the most was Part 2:

 

2)to inquire into and report upon any such circumstances or dealings where, in the opinion of the Commissioner, there is sufficient evidence that a benefit, advantage or reward of any kind was conferred upon an elected or unelected public official or upon any member of the family of any elected or unelected public official, or where, in the opinion of the Commissioner, there is sufficient evidence that there was an agreement or attempt to confer a benefit, advantage or reward of any kind upon an elected or unelected public official or upon any member of the family of an elected or unelected public official.

 

    This part of the terms is also within the ambit of s. 2 of the Public Inquiries Act.  The contention that the terms constitute an invasion of the federal criminal law power is not persuasive.  Section 121  of the Criminal Code  may well have been used as a blueprint for drafting the terms of reference.  This is a matter about which we can only speculate.  However, even if it was so used, it must be borne in mind that Criminal Code  provisions and Order in Council terms of reference are designed to accomplish completely different objectives.  The former serve as prohibitions, the violation of which carries potential penal consequences and other coercive measures.  The latter serve merely as a benchmark, delineating the scope of a circumscribed investigation, wherein criminal findings are expressly prohibited.  Given this distinction regarding purpose and effect, the resemblance between Part 2 of the terms and s. 121(1) (b) of the Criminal Code  becomes immaterial.

 

    Furthermore, the mandate of an inquiry is completely different in kind from any police investigation.  MacKay, in "Mandates, Legal Foundations, Powers and Conduct of Commissions of Inquiry" (1990), 12 Dal. L.J. 29, states at p. 34:

 

While created by government, one of the major attractions of an inquiry as an instrument of public policy is its independence from the governments of the day.  They are special creations of the executive branch but are not answerable to it, as is a regular government department....

 

    In their procedures and operations, commissions of inquiry sometimes resemble courts but they are not a branch of the judiciary.

 

    The Law Reform Commission of Canada, in its Working Paper 17, supra, at p. 19, discussed commissions of inquiry and compared their functions to those of the police:

 

The police force is clearly not the appropriate institution to perform this particular investigatory function.  In the first place, although Canada's police forces undoubtably possess excellent investigatory skills, they are skills of a specific kind; they do not convincingly extend, for example, to problems of maladministration, failure to implement policy directives properly, organizational difficulties, and so on.  Secondly, although the police may be excellent at discovering and assembling facts, they may be less capable of interpreting the significance of facts once found out; this is likely to be particularly the case in matters touching on politics and policy.  Thirdly, in any event it is quite inappropriate in our system for police forces to offer conclusions or comments on governmental matters.  Their job is to investigate; not to judge.  Finally, police investigations are necessarily secret investigations.  On occasion allegations are made that create widespread public disquiet, perhaps even a crisis of confidence.  On such occasions, confidence must be restored, and that can only be done by an investigation operating as much as possible in the public eye.   [Emphasis added.]

 

    Macdonald was of the same opinion in "The Commission of Inquiry in the Perspective of Administrative Law" (1980), 18 Alta. L. Rev. 366, at p. 371:

 

. . . although the police and other public servants such as coroners are familiar with certain investigatory aspects of inquiries, their expertise lies in very specialized areas and does not touch topics as diverse as maladministration, failure to implement policy, corruption or organizational difficulties.  In summary, from the external, or political perspective, a major rationale for the commission of inquiry is connected to the fact of its flexibility and adaptiveness.  The ad hoc inquiry performs an important supplemental role to the executive, legislative and judicial branches of government precisely because, unlike the latter, it is not a bureaucratic institution.

 

    As Dickson C.J. (then Dickson J.), for the majority in Di Iorio, supra, at p. 201, explained:

 

The function of the Inquiry is merely to investigate and report; no person is accused; those who appear do so as witnesses; there is no lis; there is no attempt to alter criminal procedure.  The proceedings of the Commission are not criminal proceedings in the sense that punishment is their aim.

 

    The background possibility of subsequent prosecution cannot serve as an absolute bar to a provincial inquiry which would otherwise be constitutional.  A contrary approach confuses both the functional and practical differences between such inquiries and the preliminary inquiries or laying of information that they have been compared to.  The latter are clearly incidental to criminal prosecution, provided for in the Criminal Code , and adorned with all the procedural safeguards that properly attend the world of law enforcement.  Specific individuals are targeted for the express and exclusive purpose of indicting them.

 

    Commissions of inquiry plainly perform a different role.  They may, as here, name an individual for the purposes of identifying the general investigative objective of the inquiry and of defining its scope.  The purpose of this inquiry is not to determine criminal responsibility.  In fact, the terms of reference explicitly prohibit the Commissioner from expressing any such conclusion.  This constraint renders my colleague's pronouncement all the more perplexing.  Certainly a report exposing dealings as well as benefits conferred may inferentially imply a "link" and a possible violation of a Criminal Code  provision.  However that does not attach any judicial imprimatur to such a deduction, nor does it alleviate the admissibility and compellability rules that law enforcement would otherwise have to contend with in the event of prosecution.  Furthermore, there is no indication here that subsequent criminal proceedings will ensue, and in the event that they do, the findings of the commission do not constitute proof at the trial.  Section 9(1) of the Public Inquiries Act is unambiguous in its amplitude of procedural protection:

 

    9.--(1)  A witness at an inquiry shall be deemed to have objected to answer any question asked him upon the ground that his answer may tend to criminate him or may tend to establish his liability to civil proceedings at the instance of the Crown or any person, and no answer given by a witness at an inquiry shall be used or be receivable in evidence against him in any trial or other proceedings against him thereafter taking place, other than a prosecution for perjury in giving such evidence.

 

    Given that the Commissioner may not make any findings regarding criminal responsibility, my colleague's conclusion effectively undermines the provinces' ability to empower future commissions for fear that similar "inferences" will subvert the federal criminal law prerogative.  So long as we appreciate the conclusive distinction between the characteristics of an inquiry and a police investigation under the Criminal Code , it remains incontrovertible that part 2 of the terms of reference is equally intra vires, and the mere fact that the language may resemble s. 121(1)(b) cannot frustrate the constitutionality of the Order in Council.

 

    Regardless of how closely the terms of reference parallel s. 121  of the Criminal Code , it is the purpose and effect rather than the strict enabling language of the commission that ought to be looked at.  Once one acknowledges the internal limitations on the commission's scope, it is difficult to share the opinion that criminal findings are being made and that the province is encroaching upon federal jurisdiction.  The powers conferred upon the Houlden Commission do not carry penal consequences, nor is the commission vested with the same coercive measures as a police investigation.  Therefore, the fear of provincial incursion into a strictly federal sphere never comes into play here.

 

    I would like to respond briefly to Lamer J.'s contention, at p. 000, that as "the present inquiry names individuals who are the alleged perpetrators of the misconduct", it bears too close a resemblance to a prosecution under the Criminal Code .  Grange J., who served as Commissioner for the inquiry at issue in Re Nelles and Grange (1984), 46 O.R. (2d) 210, recently remarked in "How Should Lawyers and the Legal Profession Adapt?" (1990), 12 Dal. L.J. 151, at pp. 154-55:

 

I remember once thinking egotistically that all the evidence, all the antics, had only one aim: to convince the commissioner who, after all, eventually wrote the report.  But I soon discovered my error.  They are not just inquiries; they are public inquiries.  When I was told in the course of the Hospital for Sick Children Commission that I could not name names, that is, identify the perpetrators of the deaths of those babies (even if the evidence justified it), I wondered what all the evidence and the time and expense was all about and whether it was all being wasted.  But after I had reflected awhile and got over my sulks, I realized that there was another purpose to the inquiry just as important as one man's solution to the mystery and that was to inform the public.  Merely presenting the evidence in public, evidence which had hitherto been given only in private, served that purpose.  The public has a special interest, a right to know and a right to form its opinion as it goes along.  [Emphasis added.]

 

    My colleague acknowledges that "naming", by itself, would not render the establishment of this commission ultra vires.  Using language resembling that of a Criminal Code  provision, or conducting a concurrent police investigation would similarly not be fatal.  Each independently would pass muster.  However, by "stacking" these admittedly intra vires components to define the scope of the inquiry, my colleague has concluded that the province has gone too far, and has usurped the federal criminal law power.  I am not persuaded that such a principle of superimposition does exist, and if it does, that it is properly applied to commissions of inquiry.  I believe that more is required in order to affix the label of unconstitutionality to an otherwise intra vires proceeding; here nothing short of a criminal investigation will do, and that is not what this inquiry is all about.

 

    Furthermore, the remote and latent risk of "colourability" should not impede legitimate provincial objectives.  As the Divisional Court held at p. 418:

 

    While recognizing that the Commissioner may find difficulty in complying with the prohibition against drawing conclusions as to responsibility, criminal or civil, we do not at present see the task as impossible.  To attempt to assess that factor without any evidence upon which the Commission may report, is in our opinion premature. [Emphasis added.]

 

 I share that opinion.  The presumption ought to be in favour of validity.  The proposition, at p. 000, that the commission "is in effect a substitute police investigation and preliminary inquiry into a specific allegation of criminal conduct by named, private citizens" is misconceived.  The coercive component is entirely different and there is no threat of incarceration.

 

    Preliminary inquiries, as provided for in Part XVIII of the Criminal Code , deal with an accused who is charged with an indictable offence (s. 535).  In this case, there is no accused and no charges have been laid.  Section 548  of the Criminal Code , which empowers a judge to order the accused to stand trial if in his or her opinion there is sufficient evidence to do so, is similarly inapplicable.  Such an order is completely foreign to the mandate and purposes of this inquiry.  As my colleague acknowledges, at p. 000, "it is clear that the fact that a witness before a commission may subsequently be a defendant in a criminal trial does not render the commission ultra vires the province."

 

    This makes it exceedingly difficult to characterize the Commissioner as one "assimilating his role to that of a judge presiding at a preliminary inquiry".  Mr. Justice David McDonald, in Re Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (1978), 94 D.L.R. (3d) 365, at p. 370, put the issue as follows:

 

The Commission is not a Court.  It is not a branch of the judiciary.  It fulfils Executive or administrative functions.... the gulf is wide between "the position of a judge in court and that of a fact-finding and advisory body which can only be classed as administrative notwithstanding that both hold hearings".

 

    The Governor in Council, in creating such a Commission as this, asks this newly and specially created unit of the Executive branch of Government to examine some particular aspect of the Government (i.e., the Executive).  The Executive branch, through its chosen Executive instrument, is examining itself.  This must not be forgotten by those who expect the Commission to do as they wish and as it wishes (assuming they are one and the same).  The Commission is created by the Executive (the Governor in Council) and its terms of reference can be altered -- indeed, its very existence can be abrogated -- by another Order in Council at any time.  [Emphasis added.]

 

    An inspection of the terms of reference embodied in the Order in Council has led me to the inexorable conclusion that such terms are not commensurate with a criminal investigation into specific crimes committed by specific, named individuals.  Consequently this Order in Council, which properly deals with matters of provincial concern, is within the constitutional power of the province of Ontario.

 

(c)  The Case Law

 

    This Court has consistently upheld the power of commissions in circumstances similar to the present case.  In Faber v. The Queen, [1976] 2 S.C.R. 9, an inquiry was held to be constitutional despite the fact that its sole purpose was to ascertain who might be charged with a particular homicide.

 

    In Attorney General (Que.) and Keable v. Attorney General (Can.), [1979] 1 S.C.R. 218, this Court upheld the constitutionality of a provincial Order in Council which required the Commissioner as part of his mandate 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.  This was a provincial inquiry into the conduct of the R.C.M.P.!  The Houlden Commission is charged with the investigation of provincial public officials, clearly contemplated within the ambit of s. 92(4)  of the Constitution Act, 1867 .  The jurisdiction of a province over the conduct of elected and unelected provincial public officials is no less valid than its jurisdiction over police forces.

 

    Keable dealt with specific events, including a theft of dynamite, an illegal entry, a search, arson, as well as the conduct of all persons involved in those events.  It was quite apparent that the provincial inquiry would, in all likelihood, reveal evidence of criminal activity of identified individuals, and lead to or form the basis of criminal charges.  In fact, such evidence was revealed, and criminal charges were eventually laid.  R. v. Vermette, [1988] 1 S.C.R. 985.  As Pigeon J. stated in Keable, at p. 241:

 

    On the other hand, it appears to me that the majority opinion in Di Iorio v. Warden of the Montreal Jail, 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, or a fire marshal's inquiry into arson as in Regina v. Coote. Notwithstanding all the arguments submitted by counsel for the Solicitor General of Canada, I find myself [bound] by authority to hold that such inquiries come within the scope of "The Administration of Justice in the Province".  [Emphasis added.]

 

    In Di Iorio, this Court held that an inquiry into organized crime in the province of Quebec was constitutionally valid. In referring to Faber, Pigeon J. stated at pp. 191-92:

 

What was there submitted by the appellant, as by the present appellants, was essentially that the matter was one coming within the description of "procedure in a criminal matter" because it was an enquiry into allegedly criminal activities. If it must be said that such an enquiry prior to any charge being laid under the Criminal Code  comes within the description of "Administration of Justice in the Province", not of "Procedure in a Criminal Matter", I cannot appreciate how one may take a different view where the object of the enquiry, instead of being the gathering of information sufficient to lay a charge for criminally causing the death of a person [Faber], is the gathering of information identifying persons engaged in organized crime and describing their activities.

 

                                                                          . . .

 

    In my view, the decision in Faber is conclusive against appellants' contention that the matter is "criminal" because the enquiry was concerned with criminal activities. It is obvious that, in s. 91(27) ..., the scope of "Criminal Law" and "Procedure in Criminal Matters" is narrowed by the allocation to the provinces of jurisdiction over the "Administration of Justice" in all matters civil and criminal, which has consistently been held to include the detection of criminal activities. The judgment in Batary shows that once a charge is laid under the Criminal Code  an accused may be said to be subject to criminal proceedings, but Faber and the other cases cited show that a person who is merely exposed to a charge is not in the same situation. The conclusion reached in Faber cannot be viewed as proceeding on the basis that the detection of crime was not the principal object of the coroner's inquest. The fact is that this was the sole object of the inquest at the particular time when the proceedings were initiated.  [Emphasis added.]

 

    In the most recent decision of this Court relating to commissions of inquiry, O'Hara v. British Columbia, [1987] 2 S.C.R. 591, three commissioners were appointed to inquire into and report on all matters associated with injuries sustained by a prisoner while in custody. The prisoner had complained that he had been assaulted and injured by police officers during his detention.  In that case, the terms of reference read in part, at p. 596:

 

(a)all factors surrounding the detention of Jacobsen [the prisoner] at the Vancouver Police Station on September 30, 1983, particularly, the reason for and the period of detention,

 

(b)whether Jacobsen sustained injuries while detained in Police custody and if so, the extent thereof, the person or persons who inflicted them, the reason for so inflicting them and the time and place the injuries were sustained, [Emphasis added.]

 

    These terms of reference were held to be perfectly valid even though the Commissioner was clearly called upon to inquire into activities which could form the basis of criminal charges. In rendering judgment, Dickson C.J. also stated that the fact that criminal charges could be laid further down the line did not render the inquiry unconstitutional. Holding that the inquiry was, inter alia, a valid exercise of the province's power under s. 92(14) (the administration of justice), he wrote at pp. 610-11:

 

A province has a valid and legitimate constitutional interest in determining the nature, source and reasons for inappropriate and possibly criminal activities engaged in by members of police forces under its jurisdiction. At stake is the management of the means by which justice is administered in the province. That such activity may later form the basis of a criminal charge and thus engage federal interests in criminal law and criminal procedure, does not, in my view, undermine this basic principle.... The inquiry is mandated to investigate alleged acts of wrongdoing for purposes different from those which underlie criminal law and criminal procedure. The purpose of the inquiry is not to determine criminal responsibility. As such, it is no different from a coroner's inquiry, the constitutionality of which was affirmed by this Court in Faber, supra.  [Emphasis added.]

 

    The present inquiry has not set up a lis between the state and accused persons.  It is, despite its more focused scope, a general investigation into improprieties involving persons both named and unnamed, known and unknown.  In O'Hara, it was strongly suspected that the inquiry would reveal which of several police officers injured an individual detained in a jail operated by the municipal police.  The terms of reference clearly focused on the conduct of specific individuals.  Only six police officers were present during the night in question.  This comprises a much narrower group than "public officials, elected or unelected".  Furthermore, the terms were phrased in such a way that once the findings were complete, the "inference" would in reality be a conclusion.  Were injuries sustained?  If so, how and when were they sustained?  How severe were they and who inflicted them?  If this type of inquiry is intra vires the province, then the present inquiry most certainly is as well.  Ultimately, one of the individuals who was the subject of the O'Hara inquiry was convicted of aggravated assault in relation to the incident which gave rise to the inquiry:  R. v. Nixon (1989), 8 W.C.B. (2d) 246, British Columbia Supreme Court, September 28, 1989, Vancouver No. CC890587.  It was noted in O'Hara at pp. 610-11:

 

That such activity may later form the basis of a criminal charge and thus engage federal interests in criminal law and criminal procedure, does not, in my view, undermine this basic principle.... The inquiry is mandated to investigate alleged acts of wrongdoing for purposes different from those which underlie criminal law and criminal procedure.  The purpose of the inquiry is not to determine criminal responsibility.

 

    I will respond directly to my colleague's effort to distinguish this Court's prior decisions.  He interprets Faber as standing for the proposition that (at p. 000) "coroners' inquests have a primary purpose other than the investigation of whether a specific crime was committed."  This conclusion is based on de Grandpré J.'s delineation in Faber, at pp. 30-31, of what these inquests, apart from the investigation of crime, are designed to accomplish:

 

(a)  identification of the exact circumstances surrounding a death serves to check public imagination, and prevents it from becoming irresponsible;

 

(b)  examination of the specific circumstances of a death and regular analysis of a number of cases enables the community to be aware of the factors which put human life at risk in given circumstances;

 

(c)  the care taken by the authorities to inquire into the circumstances, every time a death is not clearly natural or accidental, reassures the public and makes it aware that the government is acting to ensure that the guarantees relating to human life are duly respected.

 

In this situation, while the investigation of crime is important, it is not the determining aspect of the coroner's functions, with the result that the "criminal" aspect is not predominant.

 

    Furthermore, the proceeding itself is not as such concerned with the investigation of crime.  As has been indicated on several occasions,

 

    (a)  the inquest is not a trial;

 

    (b)  there is no accused.  [Emphasis added.]

 

    Equally here, the investigation of crime "is not the determining aspect" of the commission's function.  There is no "accused" in front of a commission.  The fact that Ms. Starr is named in the terms of reference simply defines the terms with sharper resolution; her inclusion as a witness provides a narrower frame of reference.  This is consistent with the Premier's statement:  "We do not want this thing to go on for the next five or 10 years."  (Hansard, June 28, 1989, at p. 1712).  See supra, at p. 000.  My colleague concludes, at p. 000, that "there seems to be a complete absence of any broad, policy basis for the inquiry".  He bases this contention on the fact that Ms. Starr and Tridel Corporation Inc. are named in the terms of reference.  However, this does not prevent the commission from investigating others, seeking an expansion of its powers, or recommending policy and administrative changes should the need arise.

 

    Moreover, the amplitude must be tailored to the demands and constraints dictated by the facts at issue.  One of the privileges of the Legislature is to define the scope of the inquiry.  While adopting the broad, open-ended language suggested by the Opposition may seem theoretically appealing to some, such an undertaking could have no practical utility for, as the Premier pointed out, its task may never be complete.

 

    Lamer J. then dissects the decision in Di Iorio, properly identifying Dickson C.J. (then Dickson J.) as speaking for the majority.  It is also true that the majority was not as sweeping as Pigeon J. (Martland, Judson and Ritchie JJ. concurred with both Dickson J. and Pigeon J.) in its characterization of Faber as enabling a province "to set up an inquiry solely for the purpose of investigating whether a particular crime was committed" (at p. 000).  Rather, at p. 210, Dickson J. found that:

 

. . . a valid distinction can be made between criminal procedure and an inquiry into criminal acts.  What is in issue here is an inquiry into specific matters encompassed by the term, Administration of Justice in the Province.  The Inquiry possesses purposes and functions which are separate and distinct from the procedures which accompany the investigation and prosecution in a criminal matter.  Accepting that police investigation of an individual must comply with federal standards of criminal procedure, it is not immediately apparent why an investigative overview of crime on a collective basis should be open to constitutional attack. [Emphasis added.]

 

In my view, this reasoning directly applies to the present case.

 

    In his treatment of Keable, my colleague explains, at p. 000, that "the decision of Pigeon J. should not be taken to mean that it is within provincial jurisdiction to directly investigate particular individuals in respect of their alleged commission of specific criminal offences."  I read Pigeon J.'s statement as remarking that the identification of those involved in "organized crime" or "criminal homicide" can be the subject of a provincial commission of inquiry.  Likewise, the identification of public officials involved in receiving improper benefits can also be explored.  It is the investigation of those implicated in criminal activity, not the determination of what constitutes a criminal offence, that is the proper objective of the inquiry.

 

    Therefore, my colleague's stress on the commission of specific offences loses sight, in my view, of the only thing that this commission of inquiry was definitively prohibited from doing, and that is, expressing any conclusion of law regarding the civil or criminal responsibility of any individual or organization.

 

    Martin J.A.'s decision in R. v. Hoffmann-La Roche Ltd. (1981), 33 O.R. (2d) 694 (C.A.), at p. 724, is also cited by my colleague for the proposition that provinces cannot legislate with respect to criminal procedure:

 

    Notwithstanding the overlapping between s. 91(27) and s. 92(14), manifestly it would not be within provincial competence to enact legislation enabling a police officer to summon a suspect before an official and submit the suspect to compulsory examination under oath with respect to his involvement in a crime.  Even though such legislation might be described as legislation in relation to the investigation of offences and thus appear to fall within the category of the administration of justice, such legislation in pith and substance would be legislation in relation to criminal procedure and thus within the exclusive competence of Parliament.  [Emphasis added.]

 

    Yet this is not what happened in the present case.  Rather the situation is more appropriately described by Dickson C.J. in O'Hara, at p. 610:

 

    A certain degree of overlapping is implicit in the grant to the provinces of legislative authority in respect of the administration of justice and in the grant to Parliament of legislative authority in respect of criminal law and criminal procedure.  A matter may well fall within the legitimate concern of a provincial legislature as pertaining to the administration of justice, and may, for another purpose, fall within the scope of federal jurisdiction over criminal law and criminal procedure: Di Iorio, supra, at p. 207.  Such is the case in the present appeal.  The administration of justice in this country is reflected in and ensured by the provision of police services and other enforcement agencies responsible for the investigation, detection and control of crime within the respective provinces.  The control and discipline of police forces is also necessary to the administration of justice.  Section 92(14)  of the Constitution Act, 1867  includes the administration of criminal justice: Di Iorio.  [Emphasis added.]

 

    Given the declared terms of reference, it is wrong to characterize this commission of inquiry as a "Starr Chamber", with unfettered discretion to interrogate and delve into every aspect of the named persons' activity.  Furthermore, by so construing the Commission's powers, one would think that once the report was issued, Ms. Starr and "her partners in crime" would be carted off to prison on the basis of the "completed" inquisition.  This is just not so.

 

    With respect to O'Hara, my colleague concludes, at p. 000, that the decision "speaks as much to the limitations on provincial commissions as it does to their breadth", and cites, at p. 000, the Chief Justice's qualification of the principles discussed above:

 

An inquiry enacted solely to determine criminal liability and to bypass the protection accorded to an accused by the Criminal Code  would be ultra vires of a province, being a matter relating to criminal law and criminal procedure.  This limitation on provincial jurisdiction is an acknowledgement of the federal nature of our system of self-government.  [O'Hara, at pp. 611-12.  Emphasis added.]

 

Surely an inquiry enacted solely to determine criminal liability would be ultra vires, but if that is the limitation to which the decision speaks, it is addressing a rather narrow target audience, and certainly not one in which this commission is attending.

 

    Admittedly, as my colleague states at p. 000, "The terms of reference name private individuals and do so in reference to language that is virtually indistinguishable from the parallel Criminal Code  provision."  However, the introductory restriction provides an insulating umbrella, shielding inquiry participants from the danger that they will be found "civilly or criminally responsible".  The Criminal Code  may use this same language, yet for a purpose that is diametrically opposite to the pronounced objectives of the commission.

 

    In fact, most commissions of inquiry established to investigate alleged improprieties by government officials, elected or not, are examining conduct which may constitute a criminal offence once all the facts have been ascertained.  The language in which the commission's mandate is framed may or may not resemble an offence described in the Criminal Code , and may or may not identify potential culprits by name.  In either case, the end result is the same.  It then becomes an exercise in semantics to determine, strictly based on the language used, whether or not the mandate is intra vires the province in a particular case.

 

    The province could have phrased the terms of reference in different language.  It could have given the commission broader powers of investigation.  It could have implicated more people or none at all.  The alternatives are numerous.  What it could not do is what the Chief Justice in O'Hara said, at p. 611, could not be done.  That is, it could not direct "An inquiry enacted solely to determine criminal liability and to bypass the protection accorded to an accused by the Criminal Code ".  Beyond that, this commission could inquire into legitimate matters of provincial concern.

 

    The case law entirely supports the proposition that this inquiry is intra vires the province.  Functionally, the Houlden Commission is indistinguishable from those commissions that withstood constitutional attack in Faber, Di Iorio, Keable, and O'Hara.  The semantic gymnastics used to distinguish the present case from this Court's precedents are not, in my view, sufficient to displace the presumption of constitutional validity.

 

(d)  Conclusion

 

    On the question of division of powers, I do not know of any general postulate which would restrict or impede provincial inquiries into matters that are otherwise explicitly within provincial jurisdiction.  I do not believe that the combination of several factors, each of which is intra vires, can render an inquiry constitutionally infirm.  It is unnecessary for the present purposes to probe more deeply into constitutional theory regarding provincial competence to investigate public officials for alleged improprieties.  However, a legislative enactment must seek to accomplish objectives that lie beyond the boundaries of its jurisdictional limits before it can be stamped ultra vires.  Given the context and scope of this inquiry, the circumscribed language of the terms of reference, and the pronouncements of this Court, particularly in Keable and O'Hara, I cannot but find that the Order in Council at issue is intra vires the province of Ontario.

 

    This inquiry is, in my view, a legitimate exercise by the province of Ontario of its powers to investigate a purely provincial matter.  At the end of the day, the irresistible conclusion is that this inquiry is not an inquiry solely into a specific crime committed by specific named persons such as to encroach upon the federal criminal law power.  Its wider function becomes apparent when assessed in the context of its establishment, upon a careful examination of the terms of reference, and in light of this Court's decisions in similar cases. 

 

    Given this conclusion, I must now address the second constitutional question; does the Order in Council dated July 6, 1989 infringe or deny the rights guaranteed by ss. 7  to 14  of the Canadian Charter of Rights and Freedoms ?

 

II.  The Charter

 

    In O'Hara, at p. 612. the Chief Justice explicitly left open the possibility of a role for the Charter  in a commission setting:

 

. . . neither a province nor Parliament may infringe the rights of Canadian citizens in establishing inquiries of this kind.  This limitation is of a different sort.  It is an acknowledgement of a respect for individual rights and freedoms and is embodied in the common law, various acts of both levels of governments...and, more recently, the Charter .  Thus, neither level of government may establish and insist upon procedures which infringe fundamental rights and freedoms, such as the right against self-incrimination as it is defined in our law. . . .  [T]his Court was asked only to address its constitutionality in terms of the distribution of powers between the two levels of government.  I therefore express no opinion upon the nature and extent of rights guaranteed by the Charter  and the law of evidence as they relate to the inquiry's proceedings except to say that those rights, of course, must be respected by the relevant authorities.  [Emphasis added.]

 

    I am in complete agreement with the foregoing pronouncement, but I believe that there has been no such infringement in the present case.  I adopt the Ontario Court of Appeal's interpretation and application of the Charter  in this matter.  The court dismisses any Charter  challenges based on ss. 7, 11, and 13.  The non-trial nature of the inquiry proceeding renders these challenges inapposite in this case.  The appellants disagree, and claim that the alleged Charter  violations are an extension of the concurrent inquiry proceeding and police investigation.  Furthermore, they argue that the inquiry's prejudicial effect on subsequent criminal prosecution presents a threat of loss of liberty.

 

    It should be pointed out that the Charter  applies differently to Ms. Starr as an individual than it does to Tridel, the corporation.  Even if we assumed that they were "persons charged with an offence", which is certainly not the case under the Public Inquiries Act, corporations are not, by their very nature, capable of suffering the type of indignities prohibited by the s. 11( c )  Charter  guarantee against self-incrimination:  R. v. Amway Corp., [1989] 1 S.C.R. 21, at pp. 40-41.  Moreover, as this Court decided in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 1004, corporations cannot claim the protection of s. 7 because they are, as a matter of principle, excluded from the ambit of that constitutional guarantee:

 

    That is, read as a whole, it appears to us that this section [s. 7] was intended to confer protection on a singularly human level.  A plain, common sense reading of the phrase "Everyone has the right to life, liberty and security of the person" serves to underline the human element involved;  only human beings can enjoy these rights.  "Everyone" then, must be read in light of the rest of the section and defined to exclude corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and include only human beings.

 

    As an individual, Ms. Starr may invoke s. 7 protection. She claims that certain liberty interests have been violated for the aforementioned reasons.  However, if one were to accept this line of argument then all inquiries that may eventually be connected to some subsequent criminal proceedings would be constitutionally infirm.  Given the prescribed limits under which a commission operates, one cannot argue that the right to life, liberty, and security of the person is being infringed in a manner contrary to fundamental justice.  The Commissioner does not issue orders, he merely reports and recommends.

 

    Concern was expressed as to whether Ms. Starr could ever hope to undergo a fair trial should criminal charges ever be brought, particularly as a result of her media exposure.  Yet Ms. Starr was being discussed, if not accused, by the media well before the Legislature contemplated setting up an inquiry or pursuing any investigation whatsoever.  If anything, the flexibility of the inquiry would enable her to clear any alleged blemishes to her reputation as a result of media exposure. The commission will have to hear her.  The media owe her no such duty.

 

    Section 4 of the Public Inquiries Act stipulates that all hearings in an inquiry are open to the public except where the commission, in its discretion, feels that the balance of interests weighs in favour of in camera proceedings.  Hence, the argument that permitting access to inquiry proceedings is effectively adjudication by "an electronic jury in the courtroom of public opinion" is ill-fated.  It confuses the Commissioner's role in relation to the media; granted, the media cannot be used as a sword to impose greater liability on the witnesses appearing at the inquiry -- but any such effects are mitigated by the stringent rules of evidence that would govern in any subsequent criminal proceeding.  Moreover, the Commission's scope should not be restricted as a result of this media "threat".  In this sense, it cannot be used as a shield by witnesses at the inquiry.  Counsel for the appellant remarked that respondents "cannot eat their cake and have it too," yet by the same token appellants can neither deny public access to the cake, nor prevent an examination of its ingredients to see if their inclusion was suspect.

 

    Furthermore, ss. 11  and 13  of the Canadian Charter of Rights and Freedoms , s. 5(2)  of the Canada Evidence Act , R.S.C., 1985, c. C-5 , and s. 9 of the Public Inquiries Act guarantee that regardless of what evidence was tendered during the inquiry, or how the media chose to portray those events, Ms. Starr or anyone else implicated will be protected against the subsequent use of testimony given at the inquiry should the matter ever be prosecuted in a court of law.

 

    Hence, the Charter  has not been violated for much the same reason that the commission is intra vires the province of Ontario.  The alleged infringement of s. 7 cannot be sustained as the commission is solely a recommendatory and not an adjudicative body.  Determinations as to guilt or innocence, or civil or criminal liability, are specifically excluded from its functional description.  Any prospective threat to liberty is purely speculative.  Given compliance with the principles of fundamental justice, the argument that state-linked stress, anxiety, or threat to reputation alone cannot violate security of the person under s. 7  of the Charter  when an individual is not charged or accused is an unwarranted extension of the rights set out in s. 7  of the Charter .

 

    With respect to the right against self-incrimination, I have already mentioned the protection guaranteed by ss. 11  and 13  of the Charter , s. 5  of the Canada Evidence Act  and s. 9 of the Public Inquiries Act.  Section 11( c )  of the Charter  preserves the non-compellability of an accused, while the other use-immunity provisions prevent testimony compelled in any proceedings from being used to incriminate the witness in any subsequent civil or criminal proceedings.  Given that Ms. Starr is not an accused, the invocation of these protective provisions is rather premature.

 

    As stated in O'Hara, the Charter  does indeed apply to inquiries.  The rights of fundamental justice must always be adhered to.  If, for instance, a party was being denied the right to counsel, or the right to be heard, or faced sanctions that in fact do restrict one's liberty or security, that would be a different matter.  But the mere fact that some subsequent criminal proceeding may take place is far too fragile a hook on which to hang a Charter  violation.  As La Forest J. stated in R. v. Lyons, [1987] 2 S.C.R. 309, at pp. 354 and 361:

 

    In the context of s. 7, it seems to me that the nature and quality of the procedural protections to be accorded the individual cannot depend on sterile logic or formalistic classifications of the type of proceeding in issue.  Rather, the focus must be on the functional nature of the proceeding and on its potential impact on the liberty of the individual.

 

                                                                          . . .

 

It is also clear that the requirements of fundamental justice are not immutable; rather they vary according to the context in which they are invoked.  Thus, certain procedural protections might be constitutionally mandated in one context but not in another.

 

    Recalling the limitations on the commission's powers and function, it is worth noting the many procedural protections awarded the appellants in the Public Inquiries Act and the Commissioner's own rulings:  standing at the inquiry; cross-examination of witnesses; right to counsel; opportunity to call witnesses to introduce evidence; privileges available to witnesses in court, such as solicitor-client privilege; and the opportunity to move for in camera hearings.  Parties with standing or limited standing are entitled to funding of their costs at legal aid rates.  Again, it cannot be overemphasized that the Commissioner is precluded from expressing any opinions regarding civil or criminal liability, or from levying any sanctions against the named appellants or other individuals called upon to testify at the public inquiry.

 

    The combination of the internal limitations on the inquiry's scope, coupled with existing procedural safeguards designed to preserve fundamental justice, ensure that the Canadian Charter of Rights and Freedoms  has not been infringed in the present case.  As I have found no Charter  violation, I need not express any opinion as to s. 1  of the Charter .

 

III.  Conclusion

 

    Having found that the Order in Council in question is intra vires the province of Ontario, and that no Charter  violation of the appellants' rights has occurred, I would dismiss this appeal.  I would answer the constitutional questions as follows:

 

1.Is the Order in Council dated July 6, 1989, enacted pursuant to s. 2 of the Public Inquiries Act, R.S.O. 1980, c. 411, ultra vires the Province of Ontario as being a matter within the exclusive jurisdiction of the Parliament of Canada, pursuant to s. 91(27)  of the Constitution Act, 1867 ?

 

A:No.

 

2.Does the Order in Council dated July 6, 1989 infringe or deny the rights guaranteed by ss. 7  to 14  of the Canadian Charter of Rights and Freedoms ?

 

A:No.

 

3.If the Order in Council infringes or denies the rights guaranteed by ss. 7  to 14  of the Charter , is the Order in Council justified in accordance with s. 1  of the Charter  and therefore not inconsistent with the Constitution Act, 1982 ?

 

A:This question need not be answered in light of my conclusion as to the second question.

 

    Appeal allowed, L'HEUREUX‑DUBÉ J. dissenting.

 

    Solicitors for the appellant Patricia Starr:  Cooper, Sandler & West, Toronto.

 

    Solicitors for the appellant Tridel Corporation Inc.:  Lerner & Associates, Toronto.

 

    Solicitors for the appellant Mario Giampietri:  Gold & Fuerst, Toronto.

 

    Solicitors for the appellant Gordon Ashworth:  Lyons, Goodman, Iacono, Smith & Berkow, Toronto.

 

    Solicitors for the respondent The Honourable Mr. Justice Lloyd W. Houlden, Commissioner:  Blake, Cassels & Graydon, Toronto.

 

    Solicitors for the respondent the Government of Ontario:  Borden & Elliot, Toronto.