T-1102-84
Murray Gaw (Applicant)
v.
D. R. Yeomans, Commissioner of Corrections
(Respondent)
Trial Division, Muldoon J.-Vancouver, May 28;
Ottawa, August 15, 1984.
Penitentiaries - Commission of inquiry appointed under s.
12 Penitentiary Act to investigate, inter alia, alleged criminal
offences of Parole Office director - Mandate similar to that
of courts of criminal jurisdiction - Applicant deprived of
procedural safeguards guaranteed persons charged before
courts - Mandate not within powers of Parliament or
respondent, considering division of powers in Constitution
Mandate infringing ss. 7, 11(a),(b),(c),(d) of Charter as appli
cant entitled to protection of Charter, being "person charged
with an offence" within s. 11 - Penitentiary Act, R.S.C. 1970,
c. P-6, s. 12 - Inquiries Act, R.S.C. 1970, c. I-13, ss. 7, 10,
12 - Criminal Code, R.S.C. 1970, c. C-34, ss. 111, 142 (rep.
and sub. S.C. 1974-75-76, c. 93, s. 8), 149(1) (as am. by S.C.
1972, c. 13, s. 70; rep. by S.C. 1980-81-82-83, c. 125, s. 8),
355(1), 357, 422(a) - Constitution Act, 1867, 30 & 31 Vict., c.
3 (U.K.) (R.S.C. 1970, Appendix II, No. 51 (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1), ss. 91(27), 92(14), 101 - Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7,
11 (a),(b),(c),(d),(g), 24(1).
Jurisdiction - Commission of inquiry appointed under s. 12
Penitentiary Act to investigate, inter alia, alleged criminal
offences of Parole Office director - Courts of criminal juris
diction proper forum to hear charges of serious criminal
offences - Neither Parliament nor respondent empowered by
Constitution to create such courts and ineffectual or incom
plete attempt to do so no less unconstitutional - Penitentiary
Act, R.S.C. 1970, c. P-6, s. 12 - Inquiries Act, R.S.C. 1970,
c. I-13, ss. 7, 10, 12 - Criminal Code, R.S.C. 1970, c. C-34,
ss. 111, 142 (rep. and sub. S.C. 1974-75-76, c. 93, s. 8), 149(1)
(as am. by S.C. 1972, c. 13, s. 70; rep. by S.C. 1980-81-82-83,
c. 125, s. 8), 355(1), 357, 422(a) - Constitution Act, 1867, 30
& 31 Vict., c. 3 (U.K.) (R.S.C. 1970, Appendix II, No. 51 (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the
Constitution Act, 1982, Item 1), ss. 91(27), 92(14), 101 -
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 7, 11(a),(b),(c),(d),(g), 24(1).
Constitutional law - Charter of Rights - Investigation of
alleged criminal offences of applicant by commission of inqui
ry - Applicant 'person charged with an offence" within
meaning of s. 11 Charter - Applicant's rights guaranteed by
ss. 7 and 11(a),(b),(c),(d) of Charter infringed - Distribution
of powers - Parliament and subordinate authority precluded
from creating court of criminal jurisdiction - Power residing
exclusively in provinces - Commission of inquiry under Peni
tentiary Act not court of criminal jurisdiction but closely
resembling in procedure and task - Attempt to constitute
court of criminal jurisdiction offensive to constitution
although ineffectual or incomplete - Penitentiary Act, R.S.C.
1970, c. P-6, s. 12 - Inquiries Act, R.S.C. 1970, c. 1-13, ss. 7,
10, 12 - Criminal Code, R.S.C. 1970, c. C-34, ss. 111, 142
(rep. and sub. S.C. 1974-75-76, c. 93, s. 8), 149(1) (as am. by
S.C. 1972, c. 13, s. 70; rep. by S.C. 1980-81-82-83, c. 125, s.
8), 355(1), 357, 422(a) - Constitution Act, 1867, 30 & 31
Vict., c. 3 (U.K.) (R.S.C. 1970, Appendix II, No. 5] (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1), ss. 91(27), 92(14), 101 - Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), ss. 7, 11(a),(b),(c),(d),(g), 24(1).
As a result of allegations of professional or managerial
misconduct and of criminal offences, the respondent appointed
a commission of inquiry pursuant to section 12 of the Peniten
tiary Act to investigate the conduct of the applicant while he
was director of the Victoria District Parole Office. The appli
cant attacks this investigation by means of an application for
certiorari and prohibition.
Held, the application is allowed as follows: the respondent's
decisions under section 12 to mandate the commission of
inquiry to investigate charges of criminal offences which can
still be instituted in a court of criminal jurisdiction are ultra
vires: they are therefore removed into this Court and quashed,
along with the mandate and terms of reference generated by
them, and the commission of inquiry is prohibited from investi
gating those charges or reporting thereon.
The respondent had not exceeded his delegated powers in
constituting this tribunal for the purpose of investigating and
reporting upon the allegations of professional or managerial
misconduct. He has, however, acted beyond his powers in
mandating a commission to investigate offences which are or
could be classified as indictable and to determine whether the
applicant is innocent or guilty of them. Since there is no
limitation on the institution of proceedings for such offences,
the applicant stands in jeopardy of prosecution without the
benefit of a now unavailable procedural protection. Further
more, indictable offences are matters within the jurisdiction of
courts of criminal jurisdiction which neither Parliament nor the
respondent has the constitutional power to create. The commis
sion closely resembles such a court, except that it is not bound
by the rules of evidence, the safeguards applicable in criminal
matters. The attempt to create a court of criminal jurisdiction
is not less offensive, constitutionally speaking, simply because it
is an ineffectual or incomplete attempt. Individuals have a right
not to be subjected to non-authoritative, non-constitutional
proceedings, held in camera, at the behest of State officials
acting beyond their legal authority.
The applicant is a "person charged with an offence" within
section 11 of the Charter and any notion that the Charter
might be circumvened by resorting to an extra-judicial body
could not be countenanced. The proper forum in which serious
charges should be judged is the criminal justice system. In the
circumstances of this case, the applicant's rights guaranteed by
section 7 (as interpreted in R. L. Crain Inc. et al. v. Couture et
al.) and paragraphs 11(a),(b),(c) and (d) of the Charter are
infringed, and they would be denied by the commission's
embarking on its mandate in regard to the criminal offences.
The circumstances are appropriate for the invocation of subsec
tion 24(1) of the Charter.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. L. Crain Inc. et al. v. Couture et al. (1983), 10 C.C.C.
(3d) 119; 30 Sask. R. 191; [1984] W.C.D. 042 (Q.B.).
NOT FOLLOWED:
Regina v. Boron (1983), 43 O.R. (2d) 623 (H.C.).
DISTINGUISHED:
Di Iorio et al. v. Warden of the Montreal Jail, et al.,
[1978] 1 S.C.R. 152; 35 C.R.N.S. 57.
REFERRED TO:
Gaw v. Reed, order dated May 31, 1984, Federal Court—
Trial Division, T-1124-84, not yet reported.
COUNSEL:
J. R. McMillan for applicant.
W. B. Scarth, Q.C. for respondent.
SOLICITORS:
Campbell, Donegani & Wood, Victoria, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MULDOON J.: This is the first to have been
filed, but second to be determined, of the appli
cant's two motions heard in Vancouver on May 28,
1984. The reasons and order in file no. T-1124-84
were released on May 31, 1984 [Gaw v. Reed,
Federal Court—Trial Division, not yet reported] .
The applicant is described as the district director
for the Victoria Parole Office in British Columbia.
His application is for certiorari and prohibition in
regard to the matters which are hereafter
described.
The respondent appointed a two-member com
mission of inquiry pursuant to section 12 of the
Penitentiary Act, R.S.C. 1970, c. P-6, by means of
convening orders and terms of reference given
under his hand on April 3, 1984.
Section 12 of the Penitentiary Act runs as
follows:
INVESTIGATIONS
12. The Commissioner may, from time to time, appoint a
person to investigate and report upon any matter affecting the
operation of the Service and, for that purpose, the person so
appointed has all of the powers of a commissioner appointed
under Part II of the Inquiries Act, and section 10 of that Act
applies, mutatis mutandis, in respect of investigations carried
on under the authority of this section.
It will be noted that the statute's direct thrust here
is "to investigate and report upon any matter
affecting the operation of the Service" [emphasis
added]. Parliament was not chary in defining the
scope of this power of the respondent's appointee,
which power is additionally buttressed by incorpo
ration of "all of the powers of a commissioner
appointed under Part II of the Inquiries Act".
Section 10 of the last-mentioned Act [R.S.C.
1970, c. I-13] furnishes a measure of authority
against contempt of its process to a commission of
inquiry. It provides that anyone who fails to obey
the commission's order to attend, or to produce
documents or to be sworn or to affirm, or to
answer (under oath or affirmation) any proper
question put to him by a commissioner or other
person, is liable on summary conviction to a penal
ty not exceeding four hundred dollars.
The respondent's convening orders and terms of
reference are, of course, crucial to the determina
tion of whether the applicant's motion is to be
allowed or dismissed. It will be noted that those
orders and terms bear some analogous relationship
to a provincial judge's committal of an accused for
trial under the Criminal Code [R.S.C. 1970, c.
C-34], in that the second preamble refers to "a
preliminary inquiry". The affidavit of John A.
LeCours, who described himself as Head, Special
Inquiries Unit, Office of the Inspector General of
Corrections, Correctional Service of Canada, was
filed herein on behalf of the respondent. Exhibit B
to that affidavit is a copy of the respondent's letter
of October 19, 1983, in which he explained the
nature and purpose of the "preliminary inquiry" to
the applicant's solicitors. The respondent wrote:
I fully appreciate the fact that the allegations made against Mr.
Gaw are serious and, in view of that, I provided for a prelim
inary inquiry in the Terms of Reference. The objective of this
preliminary inquiry is to allow me to clearly define with some
specificity the nature and scope of the vague allegations made
by the complainants and to find out whether there is some
evidence to support them. Indeed, I could have ordered an
administrative inquiry totally outside the authority of section
12 of the Penitentiary Act, after which a formal inquiry under
the Penitentiary Act would have been contemplated. But in
view of the fact that any record under the control of a govern
ment institution is subject to the Access to Information Act, I
wanted to ensure, in the interest of confidentiality, that the
information gathered during the course of the preliminary
inquiry could be made subject to an exemption under the said
Act. In acting by virtue of an Act of Parliament, there may be
means under section 16 of the Access to Information Act to
refuse to disclose the information gathered during the course of
the preliminary inquiry or the formal inquiry, which is not
necessarily the case otherwise. That being said, allow me to
explain to you the procedure that is to be followed.
A preliminary inquiry is actually conducted by the Commis
sion. The sole function of this inquiry is to report whether or
not there are specific allegations of misconduct against Mr.
Gaw appearing to be supported by some evidence and requiring
a further investigation. Although your client's rights are not
and will not be affected by the interim report and although no
formal charge was made against him, I am informed that he
was interviewed by the Commission last week. No findings or
recommendation on the validity of the alleged misconduct will
appear in the interim report. Moreover, section 12 of the
Penitentiary Act does not in my view preclude a procedure in
two stages as is now used; nor does it prohibit one or several
reports being made on the various aspects of a subject, if
considered necessary.
... Therefore, should it be recommended that I proceed with a
further investigation, new Terms of Reference will be set out
for the appointment of an authority from outside The Correc
tional Service of Canada and the present Terms of Reference
will be revoked.
Although the respondent indicated that the
applicant was interviewed by that first commission
conducting the preliminary inquiry, of which the
deponent Mr. LeCours was a member, the appli
cant was not permitted to attend, to be represented
or to participate in its deliberations. Indeed, in
reply to a specific request by the applicant's solici
tors (Exhibit C to Mr. LeCours' affidavit) the
respondent declined to provide particulars of the
allegations made against the applicant (Exhibit D
to Mr. LeCours' affidavit) on the grounds that
"allegations of misconduct which are not to be the
subject-matter of further investigation" would not
be disclosed because "they are irrelevant or
unfounded and nothing will be gained by their
disclosure." As indicated in the respondent's letter
of October 19, 1983, a new appointment of com
missioners was made with new terms of reference.
This was done on April 3, 1984.
The respondent concluded his letter of October
19, 1984 (Exhibit B to Mr. LeCours' affidavit),
with this passage:
As far as the issue of the commission of criminal offences is
concerned, you should bear in mind that the Commission is a
fact-finding body appointed to report upon any matter affecting
the operation of the Correctional Service. The inquiry is not a
trial. Consequently, the Commission is an administrative body
which is master of its own procedure and is not bound by the
rules of evidence applicable in criminal matters.
The convening orders and terms of reference
dated April 3, 1984, also made pursuant to section
12 of the Penitentiary Act, appointed George
Walter Reed as chairman and Jean W. Simmons
as member of a commission of inquiry to investi
gate the applicant's conduct while he was director
of the Victoria District Parole Office. By means of
a letter to the applicant's solicitors, dated Febru-
ary 2, 1984 (a copy of which letter is Exhibit B to
the applicant's affidavit), the respondent further
explained:
In my October 19, 1983, letter, I informed you that a new
Commission would be convened, and that a person from outside
The Correctional Service of Canada would be appointed to
conduct the Hearings. This was prompted by our common
desire to have the inquiry conducted by a tribunal that is, and is
seen to be, independent and impartial. This has now been done.
Mr. George Reed, a retired R.C.M.P. Deputy Commissioner,
has been appointed to head the one-man [sic] Commission. Mr.
Reed holds a degree in law and is currently a community Board
Member with the B.C. Parole Board. The Commission's Terms
of Reference are being redrafted and will be forwarded to you
shortly.
Mr. Keith Ward has been appointed Commission Prosecutor by
the Department of Justice to introduce evidence and examine
witnesses. Mr. George Carruthers from the Pacific Region of
Justice Canada has been appointed Commission Counsel.
The full text of the April 3, 1984, convening
orders and terms of reference is appended as
Exhibit A to the applicant's affidavit. Much of
that text was also set out in the Court's reasons in
the matter of Gaw v. Reed (T-1124-84) mentioned
above. For the sake of concise pertinence, only a
few extracts of the text need to be recited here.
They are as follows:
WHEREAS on the 6th day of February, 1984 a preliminary
inquiry was completed which concluded that there were good
and sufficient grounds to warrant formal hearings on certain
allegations related to the conduct of the Director of the Vic-
toria District Parole Office, Mr. Murray Gaw; and,
WHEREAS it is desirable that the full circumstances surround
ing any and/or all of these allegations, as well as any other
conduct on the part of Mr. Gaw that might have been prejudi
cial to the operation, effective management and reputation of
The Correctional Service of Canada and its predecessor Ser
vices, be inquired into;
NOW THEREFORE, I, Donald R. Yeomans, Commissioner of
Corrections, do hereby appoint, by virtue of Section 12 of the
Penitentiary Act, Mr. George Walter Reed as Chairman and
Mrs. Jean W. Simmons as member of a Commission of
Inquiry.
I DO FURTHER DIRECT that the Commission of Inquiry investi
gate the conduct of the said Murray Gaw while Director of the
Victoria District Parole Office, insofar as such conduct may
have adversely affected the operation, effective management
and reputation of The Correction Service of Canada and its
predecessor Services; and without limiting the generality of the
foregoing, I direct that the said Commission is to inquire into:
a) the complete circumstances surrounding the following
allegations against Murray Gaw while Director of the Vic-
toria District Parole Office, Victoria, British Columbia,
namely:
(Here follow eight principal allegations of misconduct, in
which the first and the eighth accumulate sub-allegations. In
order to protect both the applicant and the complainants
from prejudice in the proceedings, only those pertinent to the
applicant's complaint, with names deleted, are recited in full,
or else made subject to comment without full recital.)
1. THAT between February 1978 and October 1981, the both
inclusive, in or around the City of Victoria, British
Columbia, Murray GAW did
(i) ...
(ii) ... and
(iii) ... [a possible allegation of the former offence of
common assault, a summary conviction offence, upon
which proceedings can no longer be instituted, by
virtue of the provisions of subsection 721(2) of the
Criminal Code].
2. THAT between December 1977 and June 1980, the both
inclusive, in or around the City of Victoria, British
Columbia, Murray GAW did ... [another allegation of
the former offence of common assault, equally beyond
prosecution by virtue of subsection 721(2) of the Criminal
Code].
3. THAT between June 1976 and March 1978, the both
inclusive, in or around the City of Victoria, British
Columbia, Murray GAW did counsel ... [a named
person], an employee of the Victoria Parole Office, to
commit a fraud against the government in respect of his
travel and expense claims, to wit: by suggesting the inclu
sion of fictitious trips on his travel claims; and as well did
alter the expense claims of ... [that person] by including
fictitious taxi trips therein respecting the March 1978
Third Canadian Conference on Applied Criminology.
4. THAT between December 1970 and December 1975, the
both inclusive, in or around the City of Victoria, British
Columbia, Murray GAW did counsel ... [three named
persons] all employees of the Victoria Parole Office, to
commit frauds against the government in respect of their
overtime claims and travel expenses, to wit: by suggesting
the inclusion of fictitious claims to cover expenses for
Christmas parties held by the Victoria District Office.
5. THAT during the month of July, 1976, in or around the
City of Victoria, British Columbia, Murray Gaw did
engage in improper staffing activities by ...
6. THAT between the 1st day of November 1980 and the 17th
day of May 1981, the both inclusive, in or around the City
of Victoria, British Columbia, Murray GAW did engage
in improper staffing activities by ....
7. THAT between the 1st day of January, 1975 and the 1st
day of January, 1980, the both inclusive, in or around the
City of Victoria, British Columbia, Murray GAW did
engage in improper staffing activities by ....
8. THAT Murray GAW did conduct himself in a manner
unbecoming an employee of The Correctional Service of
Canada and a member of the Pacific Regional Senior
Management of The Correctional Service of Canada in
that he did:
(i) on or about the 13th day of January 1984, in or
around the City of Victoria, British Columbia, he did
(ii) between the 30th day of December 1981 and the 14th
day of October, 1983, the both inclusive, in the City
of Victoria, British Columbia, he did ....
(iii) between the 18th day of January, 1983 and the 28th
day of February, 1983, the both inclusive, in or
around the City of Victoria, British Columbia, he did
(iv) during the month of December, 1976, in or around
the City of Victoria, British Columbia, at a Christmas
party at the Workpoint Barracks he did ... [included
here is a possible allegation of the former offence of
common assault upon which proceedings can no
longer be instituted by virtue of subsection 721(2) of
the Criminal Code].
(v) during the month of December, 1977 at the Devon-
shire Hotel, in or around the City of Vancouver,
British Columbia, at a social gathering of Senior
Regional Parole Service staff, he did ... [included
here is another possible allegation of the former
offence of common assault].
(vi) on or about the 21st day of July, 1982, in or around
the City of Victoria, British Columbia, he did ....
The allegations of misconduct, or "charges" as
the respondent aptly characterized them in his
letter of October 19, 1983, levy against the appli
cant accusations of both professional or manageri
al misconduct as well as criminal offences. The
allegations of professional or managerial miscon
duct, as distinct from the charges of criminal
offences, are probably unexceptionable in light of
the provisions of section 12 of the Penitentiary Act
because they can be subsumed within "any matter
affecting the operation of the Service". The appli
cant himself draws the distinction in his affidavit
filed herein. In regard to the allegations of profes
sional or managerial misconduct the applicant
deposed in paragraph 6 of his affidavit:
6. None of the allegations of misconduct by myself which are
set forth in the said Convening Orders and Terms of Reference
have [sic] been the subject of a grievance procedure or have
[sic] otherwise been brought to my attention in any way prior
to the issuance of the said Convening Orders and Terms of
Reference, save and except that allegation set forth in para
graph 8(iii) of the said Convening Orders and Terms of Refer
ence. Further, to the best of my knowledge, information and
belief, none of the said allegations have [sic] been the subject of
a complaint to anyone prior to the issuance of the said Conven
ing Orders and Terms of Reference.
The applicant does not refer in his affidavit to
having been "interviewed by the Commission"
which was constituted for the preliminary inquiry
by the respondent and, since he was apparently not
cross-examined on his affidavit, his disavowal of
knowledge of those allegations prior to the issu
ance of the later convening orders of April 3, 1984
must be accepted as correct in regard at least to
their specifics. The earlier convening orders of
September 14, 1983, were not produced, but the
applicant's solicitors, in their letter of October 7,
1983, addressed to the respondent (Exhibit A to
Mr. LeCours' affidavit), indicated that the appli
cant had been provided with a copy of those earlier
convening orders. However, in regard to the alle
gation expressed in paragraph a)8(iii) of the
orders, and the other allegations of professional or
managerial misconduct, even though some are
alleged to have taken place many years prior to
April 3, 1984, and even though the applicant
swears that no grievance procedures were ever
invoked, it seems probable that the respondent has
not exceeded his delegated powers in constituting
this tribunal for the purpose of investigating and
reporting upon those matters.
Is it otherwise in regard to those allegations
which are accusations of the commission of crimi
nal offences? The short, unvarnished answer must
surely be "Yes," on a variety of grounds.
Here, too, a distinction must be asserted even as
between the kinds of criminal offences. If those
allegations which charge the summary conviction
offences of common assault are correctly charac
terized herein, then they are statute-barred by the
passage of time and the applicant stands in no
jeopardy of prosecution at this late date. If, how
ever, they could be correctly characterized as the
sort of assault which could be charged as indict
able offences under subsection 149(1) [as am. by
S.C. 1972, c. 13, s. 70; rep. by S.C. 1980-81-82-83,
c. 125, s. 8] as it stood during the seventies and
until recently in the Criminal Code, then he faces
the prejudice of an extra-judicial inquiry with the
jeopardy of being no longer permitted even to
invoke the former section 142 since it was a proce
dural protection which has now been repealed
[rep. and sub. S.C. 1974-75-76, c. 93, s. 8]. There
is no limitation on instituting proceedings for
indictable offences in general, nor was there any
limitation with regard to the former subsection
149(1). It does seem rather unlikely that the appli
cant would have to face such charges at this late
date in a court of criminal jurisdiction although
paragraph 11(g) of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] certainly does not negative the
possibility. That possibility, even if the applicant
might then successfully invoke section 7 and para
graph 11(b) or other provisions of the Charter,
renders it of highly dubious propriety for the com
mission of inquiry to investigate those charges and
make a determination for the purpose of reporting
to the respondent. The Court's discretion here
operates against the inclusion of them in the con-
vening orders and terms of reference. The commis
sion of inquiry is clearly not a court of criminal
jurisdiction and the respondent has no power to
constitute it as such. In constituting the commis
sion purportedly to hear evidence, investigate and
make a determination of the applicant's innocence
or otherwise in regard to allegations a)1(iii), a)2
(in regard to touching), a)8(iv) (in regard to the
alleged assault) and a)8(v) (also in regard to the
alleged assault), the respondent exceeded his statu
tory power.
The above finding applies with added force to
allegations a)3 and a)4, which are accusations of
indictable offences about which there is no
ambiguity of characterization. Whether those
accusations describe counselling of the crimes
described in section 111, subsection 355(1) or
section 357 of the Criminal Code does not detract
from the indictable characterization of the alleged
offences. Paragraph 422(a) of the present Code
comes into play here. It is beyond the respondent's
power to constitute a tribunal for the purpose of
hearing evidence, investigating and reporting on
the applicant's innocence or otherwise in regard to
those charges.
According to counsel for the respondent in this
case, who represented the respondents in Gaw v.
Reed (T-1124-84), the commission of inquiry fully
intends to pursue its terms of reference and will do
so unless prohibited from doing so by order of this
Court. The quashing of the above-mentioned alle
gations in the terms of reference will serve to
prohibit the commission from investigating those
matters.
The above result is based on constitutionality—
both the division of powers, and the provisions of
the Charter. Both constitutional aspects of the
matter operate now in regard to the actions of the
respondent who is an official of the State purport
ing to wield the power of the State delegated to
him by an Act of Parliament. Both aspects are
interwoven in this analysis.
The division of powers precludes Parliament or
any subordinate authority purporting to act under
an Act of Parliament from creating or establishing
a court of criminal law jurisdiction. Except
possibly for an urgent invocation of section 101 of
the Constitution Act, 1867,* in virtually unthink
able circumstances, the creation of courts of crimi
nal jurisdiction normally belongs exclusively to the
provinces. (The existence, for example, of the
Court Martial Appeal Court is not under any
consideration here.) For this state of matters the
Constitution provides not one, but two, co-ordinate
imperatives expressed in sections 91 and 92 of the
Constitution Act, 1867:
91. [Parliament's powers] ...
27. The Criminal Law, except the Constitution of Courts of
Criminal Jurisdiction, but including the Procedure in Crimi
nal Matters. [Emphasis added.]
92. [Provincial legislatures' powers] ...
14. The Administration of Justice in the Province, including
the Constitution, Maintenance, and Organization of Provin
cial Courts, both of Civil and of Criminal Jurisdiction, and
including Procedure in Civil Matters in those Courts.
[Emphasis added.]
Now, it is clear that the respondent's authority to
constitute the commission of inquiry although
delegated by Parliament is not derived from sec
tion 101, and it is certainly not derived from
section 92, Class 14 of the Constitution Act, 1867.
Indeed, his authority does not extend so far as to
constitute or convene a court of justice at all.
All of this is quite clear, and the respondent
acknowledges it to be so, as he did in his conclud
ing paragraph of his letter of October 19, 1983
(Ex. B to Mr. LeCours' affidavit), already quoted.
The respondent's counsel argued to the same
effect. Even though the respondent configured
these investigations to resemble criminal proceed
ings upon indictable offences, with the charges
drawn much like counts in an indictment, with a
preliminary inquiry, with a prosecutor to lead evi
dence, and with reference to determine whether
the applicant committed those alleged offences (If
not, why are they so specifically formulated?)
nevertheless the commission of inquiry is not a
court of criminal jurisdiction. It closely resembles
* 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No.
5] (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1).
such a court in both its procedure and in its task,
except that it is not bound by the rules of evidence,
the safeguards applicable in criminal matters. But
this commission of inquiry is not such as figured in
Di brio et al. v. Warden of the Montreal Jail, et
al., [1978] 1 S.C.R. 152; 35 C.R.N.S. 57, for it is
neither a provincial inquiry nor is it investigating
organized crime. Nor does it resemble a coroner's
court investigating a sudden death's surrounding
circumstances. It is convened to investigate, inter
alia, the alleged criminal acts of only the
applicant.
The attempt to constitute a court of criminal
jurisdiction is not less offensive, constitutionally
speaking, simply because it is an ineffectual or
incomplete attempt. It is indeed most offensive
precisely because the tribunal, like the sorcerer's
apprentice, would purport to deal with a potent
chemistry of substantive accusation and procedur-
la formulae which, if rendered active at all, ought
to be processed constitutionally and conclusively
by a court of criminal jurisdiction, or not at all.
The respondent has improperly mandated this
commission of inquiry with the duty to determine
whether the person charged with the offences com
mitted them or not. In terms of the criminal
offences charged against the applicant, the com
mission cannot make an authoritative determina
tion because in law its adjudication could never
amount to either a conviction or an acquittal. Will
the witnesses' testimony, unfettered by the rules of
evidence, be as carefully expressed as it would be
in a proper trial? After all, as the respondent
himself avers, this is merely an administrative
tribunal. If the testimony be transcribed could it
be made to surface again to the prejudice of the
applicant if he is ever put on trial? That is an open
possibility. Individuals have a right not to be sub
jected to non-authoritative, non-constitutional pro
ceedings, held in camera, at the behest of State
officials acting beyond their legal authority. Our
Constitution provides a valid criminal justice
system for the public trial and authoritative dispo
sition of accusations of crime, and it is the right
and duty of law officers of the Crown to decide to
prosecute or not. It is neither the right nor the
duty of the respondent to conduct a criminal inves-
tigation of this sort by mandating a commission
under section 12 of the Penitentiary Act to con
duct itself as if it were a court of criminal
jurisdiction.
The provisions of the Charter are quite conso
nant with our established constitutional norms in
according any person charged with an offence, as
the applicant is, the rights, in section 11,
11. ...
(a) to be informed without unreasonable delay of the specific
offence;
(b) to be tried within a reasonable time; [and]
(d) to be presumed innocent until proven guilty according to
law in a fair and public hearing by an independent and
impartial tribunal;
among other rights.
The interpretation of the word "charged" in
section 11 of the Charter which was effected in
Regina v. Boron (1983), 43 O.R. (2d) 623 (H.C.)
is too restrictive, for it leaves open the possibility
of making accusations of criminal offences to be
adjudicated by administrative tribunals without
placing the accused in the constitutionally defined
and protected posture of a person "charged with
an offence". Section 11 is not so ineffectual as
that. Nor does it require an affirmative finding "to
the effect that governmental officials deliberately
refrained from laying a charge so as to prejudice
intentionally an accused from later making full
answer and defence" (O.R. at page 630). One does
not have to condemn government officials so
roundly simply in order to determine that an
accused in these circumstances has been
charged—unconstitutionally charged to be sure—
but nevertheless clearly charged with an offence,
even if in the wrong forum. The plight of the
applicant here can be objectively assessed without
making pejorative findings about the respondent's
intentions or motives.
The respondent has convened this second com
mission of inquiry pursuant to section 12 of the
Penitentiary Act, which imports Part II of the
Inquiries Act, R.S.0 1970, c. I-13, and that impor
tation of powers also brings into play Part III of
the last-mentioned Act. In Part II, section 7 vests
the commission with the power to "summon before
... them any person and require him to give
evidence on oath, orally or in writing, or on solemn
affirmation ...." By section 8, the commission is
empowered to issue a subpoena in order to compel
the testimony of any person "to testify to all
matters within his knowledge relative to the
subject-matter of such investigation ...." It would
make mockery of the solemnly entrenched provi
sions of the Charter to hold that, because this
commission is merely an extra-judicial parody of a
court of criminal jurisdiction, the applicant is not
entitled to invoke paragraph 11(c) of the Charter.
So to hold would be to invite blatant circumven
tion of the legal rights of the individual and of the
proper constitutional role of courts of criminal
jurisdiction in our criminal justice system. Such
circumventions of the Constitution are not to be
countenanced.
Of course it might well be the case that these
commissioners would not seek to compel the appli
cant's testimony in any event. They might be quite
indifferent as to whether he would even attend in
person or by counsel. They might be quite content
simply to rely on section 13 of the Inquiries Act
and to notify him if they later conclude that the
"charge of misconduct" (to use the words of the
Act) has been made out against him. Such a view
of the matter would be appropriate if, in the course
of its legitimate inquiry, the commission happened
upon evidence which seemed to implicate a person
in some sort of misconduct. That is the import of,
and the valid reason for, section 13.
Here, however, if permitted to pursue its man
date, the commission would open the hearing with
an inquiry into specific accusations of indictable
offences against the applicant. It flies in the face
of reason to suggest that these commissioners and
this accused could ever be indifferent to each
other's position and status in such proceedings. If
this commission of inquiry be permitted to embark
upon its non-authoritative parody of the criminal
law process, no matter how fair, well-intentioned
or unbiased these commissioners personally may
be, what shall be done about the next such inquiry
and those which will follow? This commission's
mandate represents a constitutional aberration.
The proper forum for trying whether or not the
applicant be innocent of the serious charges
alleged against him resides within the criminal
justice system. If the law officers of the Crown
consider that there is good reason to charge him in
the constitutional manner, so be it. If, however, the
law officers of the Crown decide not to charge him
with these indictable offences, then there is no
good reason to make him face the very same
accusations in an extra-judicial forum. That would
be the very kind of State oppression which our
Constitution does not tolerate in peace-time and in
these circumstances where the very security of our
people and our Constitution is not even remotely
imperilled. The legitimate objective of investigat
ing and reporting on any matter affecting the
operation of the Correctional Service does not
warrant such a departure from constitutional
norms.
The applicant, being a "person charged with an
offence" cannot in fact be guaranteed, in the
discharge of the commission's mandate,
—to be informed without unreasonable delay of
the specific offence which is alleged to have
been committed as long ago as 1970;
—to be tried within a reasonable time so as to be
able to marshal his defence, if any;
—not to be compelled to be a witness in proceed
ings against him in respect of those offences; or
—to be presumed innocent until proved guilty
according to (criminal) law in a public hearing
by an independent tribunal.
Moreover, the applicant cannot, in such circum
stances, be guaranteed his rights "to life, liberty
and security of the person and ... not to be
deprived thereof except in accordance with the
principles of fundamental justice" expressed in
section 7 of the Charter. In that regard, the inter
pretation effected by Mr. Justice Scheibel, of the
Saskatchewan Court of Queen's Bench, in R. L.
Crain Inc. et al. v. Couture et al. (1983), 10
C.C.C. (3d) 119; 30 Sask. R. 191; [1984] W.C.D.
042, is instructive and persuasive. He wrote (at
pages 142-143 C.C.C.):
In light of this general limitation [section 1 of the Charter] it
would seem unnecessary and inappropriate to read further
restrictions into s. 7.
In my view, the specific rights enumerated in ss. 8 to 14 are
specific examples or emanations of the general right to life,
liberty and security of the person, and the specific mention of
these rights serves to reinforce the general rights secured by s.
7, rather than to restrict them.
Although the specific rights enumerated in ss. 8 to 14 may
come within the scope of the compendious phrase "life, liberty
and security of the person", the framers of the Charter, in
placing certain specific rights outside of s. 7, afforded them an
additional measure of sanctity. Under s. 7 a person may be
deprived of his rights if the deprivation is in accordance with
the principles of fundamental justice. The specific rights in ss. 8
to 14 are not so limited.
If the relationship between s. 7 and the following sections is
viewed in this way, s. 11(c) does not preclude a right not to be
compelled to be a witness against oneself from arising before a
person is charged. Rather, s. 11(c) provides additional protec
tion by setting the point at which the right not to be compelled
to be a witness against oneself is no longer subject to possible
deprivation in accordance with the principles of fundamental
justice.
Similarly, s. 13 guarantees to a witness the specific right not
to have self-incriminating evidence used against him in other
proceedings. This is a separate right which arises regardless of
whether the witness testifies voluntarily or under compulsion.
This positive right conferred by s. 13 should not be taken as a
constitutional adoption of the statutory scheme established by
s. 5 of the Canada Evidence Act, R.S.C. 1970 c. E-10. There is
nothing in s. 13 that expressly makes a person compellable to
give self-incriminating evidence. Although s. 13 is similar to s.
5(2) of the Canada Evidence Act and s. 20(2) of the Combines
Investigation Act, there is no equivalent to s. 5(1) of the
Canada Evidence Act or to s. 17(2) of the Combines Investiga
tion Act contained in the Charter. The restrictive provisions of
these latter sections should not be read into the Charter as
necessarily implicit in the positive rights conferred by s. 13.
For these reasons I would hold that the specific rights in ss.
11(c) and 13 do not necessarily preclude a more general right
against the compelling of self-incriminating evidence from
being within the scope of s. 7. It remains to be considered
whether the compelling of such evidence, as authorized by s. 17
of the Act, is an interference with a person's right to liberty and
security of the person.
I do not propose to attempt any exhaustive definition of the
range of rights encompassed by the phrase "life, liberty and
security of the person". Indeed, it would be impossible to define
the scope of this phrase with any degree of exactness. The
boundaries of this broad right will undoubtedly be developed by
the courts interstitially as different claims arise.
In the present case the applicants allege that the phrase
includes a right not to be compelled to give self-incriminating
evidence. This claim does not require any judicial exploration
of the penumbra of the right to life, liberty and security of the
person. Although the right to life is not in issue here, in my
view, the privilege against self-incrimination is deeply rooted in
the right to liberty and security of the person.
The history of the privilege against self-incrimination is well
documented in Levy, Origins Of The Fifth Amendment (1968)
(New York, Oxford University Press). Levy points out that the
privilege against self-incrimination was at the root of the
historic struggle for individual liberty.
Furthermore, the phrase "security of the person" includes a
right to personal dignity and a right to an area of privacy or
individual sovereignty into which the State must not make
arbitrary or unjustified intrusions. These considerations also
underlie the privilege against self-incrimination.
In summary, the result here is predicated on the
following considerations and findings. The words
"investigate and report upon any matter affecting
the operation of the Service" in section 12 of the
Penitentiary Act cannot be interpreted so as to
contemplate the constitution, maintenance and
organization of a federal tribunal mandated to
inquire and determine whether the accused be
innocent or guilty of criminal offences specifically
expressed in its terms of reference. It is beyond
Parliament's powers, in ordinary circumstances, to
constitute courts of criminal jurisdiction, even if,
and especially if, the tribunal be an ineffectual,
non-authoritative imitation of such courts. The
respondent exceeded his powers in purporting to
vest his commission of inquiry with such powers, in
imitation of a court of criminal jurisdiction. The
applicant's rights guaranteed by section 7, and
paragraphs 11(a), (b), (c) and (d) of the Charter
are infringed, and they will be denied by the
commission's embarking on its mandate in regard
to the criminal offences. The circumstances are
appropriate for the invocation of subsection 24(1)
of the Charter.
Accordingly the respondent's actions and deci
sions in mandating the commission of inquiry
which he convened on April 3, 1984, to investigate
and report on the criminal offences alleged against
the applicant in the commission's terms of refer
ence are quashed, with costs in the applicant's
favour. From this quashing of those items in their
terms of reference, it follows that the commission
is effectively prohibited from entering upon any
investigation, inquiry, taking of evidence or report
ing in regard to those accusations. It is simply to
ignore them, and avoid them.
ORDER
IT IS ORDERED that the decisions of the respond
ent, D. R. Yeomans, Commissioner of Corrections,
taken on April 3, 1984, beyond his powers under
section 12 of the Penitentiary Act to mandate the
commission of inquiry of Reed and Simmons, or
any such commission, to investigate charges of
criminal offences which can still be instituted in a
court of criminal jurisdiction against the applicant,
Murray Gaw, and notwithstanding the generality
of the foregoing, specifically:
1. any and all allegations of assault, including the touching of
anyone without consent, levied in directions a)1(iii), a)2,
a)8(iv) and a)8(v);
2. directions a)3 and 4 in their entirety; and
3. any and every other allegation in the convening orders and
terms of reference whereby Murray Gaw's liability to be
charged with a criminal offence remains unresolved,
be, and they are hereby, removed into this Court,
and those decisions and the mandate and terms of
reference generated by them are hereby quashed;
and the commission of inquiry so mandated by the
respondent is thereby prohibited from investigat
ing them or reporting upon them; and
IT IS FURTHER ORDERED that the respondent do
pay to the applicant the applicant's taxable costs
of and incidental to this motion.
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