T-1124-84
Murray Gaw (Applicant)
v.
George Walter Reed and Jean W. Simmons
(Respondents)
Trial Division, Muldoon J.—Vancouver, May 28
and 31, 1984.
Judicial review — Prerogative writs — Certiorari — Com
mission of Inquiry into misconduct under Act — Denial of
adjournment pending giving of particulars — Criminal
offences by parole official alleged — Urgency of proceeding
before particulars furnished not demonstrated — Tribunal
having discretion to grant adjournment — Exercise of discre
tion tainted by unfairness and denial of natural justice —
Decision quashed — Prohibition not ordered — Penitentiary
Act, R.S.C. 1970, c. P-6, s. 12.
Penitentiaries — S. 12 inquiry into alleged misconduct,
including criminal offences, of parole office district director —
Prosecutor willing to furnish particulars but adjournment of
inquiry pending their receipt denied — Decision quashed on
certiorari for unfairness and denial of natural justice —
Penitentiary Act, R.S.C. 1970, c. P-6, s. 12.
The applicant is the district director of a parole office. The
respondents were appointed by the Commissioner of Correc
tions, acting under section 12 of the Penitentiary Act, to serve
on a Commission of Inquiry. The purpose of the inquiry was to
investigate allegations of misconduct on the part of the appli
cant. Certain of the' allegations were in relation to criminal
offences including common assault and the counselling of
defrauding the government. The applicant's solicitors had
requested particulars from the Commissioner and, while the
prosecutor is apparently willing to furnish the required infor
mation, it has not been given. The application herein is for
certiorari and prohibition in view of the refusal to adjourn the
inquiry pending the provision of particulars.
Held, the application should be allowed.
While the decision upon the adjournment request was within
the respondents' discretion, it was to be exercised fairly and in
accordance with the principles of natural justice. The instant
case was to be distinguished from that of Hae Soo Han in
which the judgment of the Federal Court of Appeal was based,
in part, upon the Adjudicator's limited jurisdiction to grant an
adjournment. The tribunal herein was not subject to such
constraints. The respondents had not demonstrated the urgency
of proceeding before particulars could be given and the
adjournment refusal constituted a denial of natural justice.
That decision is quashed but prohibition would not be ordered.
A decision on the applicant's companion application for certio-
rari and prohibition with respect to the convening orders and
terms of reference is reserved.
CASE JUDICIALLY CONSIDERED
DISTINGUISHED:
Minister of Employment and Immigration v. Han,
[1984] 1 F.C. 976 (C.A.).
COUNSEL:
J. R. McMillan for applicant.
W. Scarth, Q.C. for respondents.
SOLICITORS:
Campbell, Donegani & Wood, Victoria, for
applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
MULDOON J.: The applicant is the district direc
tor for the Victoria parole office in British
Columbia. His application is for certiorari and
prohibition in regard to the matters which are
described below.
The respondent George Walter Reed is the
Chairman, and the respondent Jean W. Simmons
is a member, of a Commission of Inquiry appoint
ed by the Commissioner of Corrections, 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 the hand of the Commis
sioner of Corrections on April 3, 1984.
Section 12 of the Penitentiary Act runs as
follows:
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.
The actual convening orders and terms of refer
ence run, in part, after mentioning the above statu
tory provision, thus:
WHEREAS on the 6th day of February, 1984 a preliminary
enquiry 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 DIRECT AND CHARGE the persons so appointed faithfully to
execute the duties entrusted to them in the conduct of this
Commission of Inquiry; and,
1 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 Correctional 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 alle
gations against Murray Gaw while Director of the Victoria
District Parole Office, Victoria, British Columbia, namely:
(Here follow eight principal allegations of miscon
duct, in which the first and the eighth accumulate
sub-allegations. They are not set out here in order
to protect both the applicant and the complainants
from prejudice in the proceedings, but some of
them will be the subject of certain necessary obser
vations herein.)
b) the role, if any, of line management as it pertains to the
subject matter under inquiry;
c) the adequacy and effectiveness of existing Service policies
and procedures as they relate to the circumstances under
inquiry;
d) such other matters as the Commission may deem relevant.
AND I FURTHER DIRECT the said Commission to provide me
with advice and recommendations, if deemed appropriate,
which can contribute to the effective resolution and/or preven
tion of possible similar future situations or occurrences.
AND FURTHER, to ensure the success of this Inquiry, the
Commission is authorized:
(Here follow the conferring of powers upon the
Commission to adopt procedures, rules of evi
dence; to hear witnesses under oath; to proceed in
camera; to engage staff, premises and equipment;
to search and seize within the premises and papers
of the Service; to have access to the Service's
personnel; etc.)
AND I FURTHER DIRECT that in the pursuit of this Inquiry, the
Commission will be guided by the provisions of any or all
relevant enactments of Canada including more particularly
Section 13 of the Inquiries Act, as well as National, Regional
and Institutional policies and procedures of the Service as they
apply to the circumstances under inquiry.
AND I FURTHER DIRECT the persons hereby appointed to report
to me as expeditiously as possible.
AND I FURTHER DIRECT, that the security classification for this
inquiry will be CONFIDENTIAL.
Given under my hand at the City of Ottawa, in the Province of
Ontario, this 3rd day of April, 1984.
(sgd) D. R. Yeomans
Commissioner of Corrections
The Correctional Service of Canada
None of the allegations of misconduct could be
termed trifling, but at least three are framed in
terms of criminal offences. Allegation 3 avers that
"between June, 1976 and March 1978" the appli
cant "did counsel .. . an employee ... to commit a
fraud against the government ... to wit: by sug
gesting ...." Allegation 4 states that "between
December, 1970 and December 1975" the appli
cant likewise counselled certain employees to
commit frauds against the government. Allegation
8(iv) then asserts that "during the month of
December, 1976, ... at a Christmas party at the
Workpoint Barracks" the applicant committed
what seems to have been a common assault. The
events recited in these (and several of the other)
allegations of misconduct are said to have occurred
a fairly long time ago. The complaints were cer
tainly not expressed or formulated with prompti-
tude after the alleged misconducts to which they
relate.
Now the applicant has been aware, since the
autumn of 1983 that he was under investigation,
because his solicitors wrote to the Commissioner of
Corrections on October 7, 1983, about the "pre-
liminary enquiry" mentioned in the convening
orders. A copy of that letter is appended to the
affidavit of John LeCours who was a member of
that inquiry. Also appended is a copy of the Com
missioner's reply in which he wrote, in part:
As a second stage, should the Commission [the preliminary
enquiry] recommend a further investigation, a formal hearing
will take place and a final report will be prepared solely upon
the evidence heard during the course of the said hearing. Before
it takes place, Mr. Gaw will be provided with the specific
allegations against him and will be advised of the name of the
persons summoned to testify. All witnesses will testify under
oath. Mr. Gaw will be given the opportunity to be present
throughout the hearing of the evidence and to be represented by
counsel. If he so chooses, his counsel will have the right to
cross-examine all witnesses and to call witnesses on behalf of
his client if their testimony is considered, in the view of the
Commission, pertinent and necessary to the proper conduct of
the inquiry. At the conclusion, Mr. Gaw's counsel will be
permitted to present arguments.
In view of the seriousness of the allegations and the possible
involvement of a large number of employees, I intend to
appoint an outside and independent authority to conduct the
proceedings of the Inquiry. Therefore, should it be recommend
ed that I proceed with a further investigation, new Terms of
Reference will be set out for the appointment of an authority
from outside the Correctional Service of Canada and the
present Terms of Reference will be revoked.
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.
I trust that these explanations will be satisfactory.
Now, all along, the applicant, through his solici
tors has been asking for particulars. After all, the
events mentioned in the complaints are not alleged
to have occurred very recently. These requests
have been directed to the Commissioner of Correc
tions, to the respondents, to their Commission
counsel and to their Commission prosecutor. The
respondents, it seems, have engaged not only a
Commission counsel but also another person whom
they designate as their "prosecutor". By all
accounts that prosecutor seems to be willing to
accord the detailed particulars which the appli
cant's solicitors seek, but he has not yet produced
what he offers to produce. In the spirit of section
13 of the Inquiries Act [R.S.C. 1970, c. I-13] he
ought to make timely disclosures of particulars of
those allegations starting with the alleged events of
1970.
The respondents first fixed May 7, 1984, as the
date for the commencement of the inquiry.
Through his solicitors the applicant objected to the
date and the location. On May 7, the applicant's
counsel appeared and, still seeking particulars,
sought an adjournment until September 1984, in
order to permit adequate time for preparation once
the particulars were accorded. The respondents
adjourned the commencement until June 4, 1984.
On May 7, the prosecutor again adopted a not
unreasonable posture in the matter. According to
the uncontradicted evidence of the applicant, the
prosecutor advised that he would then require at
least two weeks in which to provide further and
better particulars and to make disclosure of the
documents requested, and, he did not object to an
adjournment of the hearing to some date in Sep-
tember 1984.
Now, the respondents must be deemed to be as
impartial as this Court is in regard to the appli
cant, whose conduct is the subject of their inquiry.
The decision to grant or deny a request for an
adjournment is within the respondents' discretion.
Their discretion is to be predicated on principles of
natural justice. It must be exercised fairly. The
case at bar brings to mind the reasons of Mr.
Justice Collier in the case of Hae Soo Han' which
was cited here by counsel. He said:
I have, nevertheless, concluded that the refusal to adjourn
the inquiry proceedings, pending the results of the citizenship
application was, in the circumstances, an exercise of discretion
tainted with unfairness; a denial of natural justice. When I use
those words, I use them in the strict legal sense. I am not for a
moment suggesting the Adjudicator was, in the layman's par
lance, unfair.
The disposition of the Minister's appeal 2 in the
Hae Soo Han case was not referred to by counsel.
The Appeal Division unanimously allowed the
appeal principally because the Adjudicator
enjoyed only limited jurisdiction to grant an
adjournment and because the applicant was not
left without a remedy under the circumstances
since the Immigration Appeal Board is vested with
jurisdiction and discretion to make an "equitable"
decision to quash or stay a deportation order. In
effect, the Appeal Division held that the Trial
Judge misapplied good principles to the wrong sort
' In re Immigration Act, 1976 and in re Han, judgment dated
July 4, 1983, Federal Court—Trial Division, T-1348-83, not
yet reported, at p. 4.
2 Minister of Employment and Immigration v. Han, [ 1984] 1
F.C. 976 (C.A.).
of tribunal. Mr. Justice Marceau, in the cited
appeal case went on to say this:
It is apparent from the reasons of the learned Trial Judge that
the "taint of unfairness" he was seeing was directed to the
decision itself because of its possible prejudicial effects to the
respondent [in the appeal]; it had nothing to do with the
manner in which the decision had been reached. 3
The decision in the case at bar is a refusal to
adjourn the hearing until after the applicant can
be provided with particulars so that he can then
make adequate preparation to respond to the seri
ous allegations of misbehaviour which the Com
mission is to investigate. That refusal came after
many requests by the applicant's solicitors and
counsel to be provided with such particulars, and
after the Commission's own prosecutor conceded a
willingness to comply with the requests even
though he had not yet done so by the time of the
hearing of the applicant's motion in this Court.
The urgency of proceeding before the applicant
can obtain particulars and interview persons whose
testimony might aid him to respond to the allega
tions has not been demonstrated by the respond
ents. In light of all the circumstances, the respond
ents articulate no adequate reason for their
refusal. On the other hand, the applicant has, in
natural justice, the right to such particulars before
having to face the accusations which will be led by
the respondents' chosen "prosecutor".
The respondents here constitute a tribunal
which is not subject to the same constraints which
were found to fetter the discretion of the Adjudica
tor in the Hae Soo Han case. That salient factor
alone is quite sufficient to distinguish the circum
stances of this case from that one. The principles
of natural justice apply with full force here.
In the circumstances of this case, the respond
ents' decision to deny the applicant an adjourn
ment of the hearing, which after all, concerns his
alleged misconduct, (not someone else's and not
some occurrence in which no one in particular is
implicated), is an exercise of discretion tainted
with unfairness, and a denial of natural justice.
Their decisions (a) to deny the applicant an
adjournment until the first week of September,
1984; and (b) to commence the hearings on June
3 Ibid., Marceau J., at p. 987.
4, 1984 are both quashed. Prohibition will not, in
the circumstances, be ordered.
The foregoing decision of the Court is to be
regarded neither as an allowance nor a rejection of
the applicant's companion application for certio-
rari and prohibition against the Commissioner of
Corrections in regard to the convening orders and
terms of reference themselves. The decision upon
that application is, for the time being, still
reserved.
ORDER
IT IS ORDERED that the decisions of the respond
ents George Walter Reed and Jean W. Simmons,
being a Commission of Inquiry appointed under
section 12 of the Penitentiary Act to inquire into
alleged misconduct of the applicant Murray Gaw
(a) to deny the applicant an adjournment of their
hearings until the first week of September 1984;
and (b) to commence the hearings on June 4,
1984, be, and they are hereby removed into this
Court, and those decisions are hereby quashed.
The applicant may have his costs, to be taxed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.