Judgments

Decision Information

Decision Content

A-336-90
Attorney General of Canada (Appellant) v.
Royal Canadian Mounted Police Public Com plaints Commission (Respondent)
INDEXED AS: ROYAL CANADIAN MOUNTED POLICE ACT (CAN.) (RE) (CA.)
Court of Appeal, Urie, MacGuigan and Linden JJ.A.—Toronto, November 27, 28; Ottawa, December 18, 1990.
Construction of statutes — Royal Canadian Mounted Police Act, Parts VI, establishing RCMP Public Complaints Com mission, and VII, creating statutory scheme for investigation of complaints — Appeal from trial judgment holding Parts VI and VII retrospective as enacted to protect public and within exception to presumption against retrospectivity set out by S.C.C. in Brosseau v. Alberta Securities Commission
Meaning of "retroactive" and "retrospective" Brosseau distinguished — Limited exception to presumption where (I) statutory disqualification (2) based on past conduct (3)
demonstrating continuing unfitness for privilege Not appli
cable here as no continuing unfitness Mischief and remedies
legislation aimed at: exposure, punishment of wrongdoing by Force members and non-members and their protection against
unfounded allegations — Parts VI , VII prospective Legis lation not escaping presumption as merely procedural — That Parts coming into force on different dates not significant Executive, not Parliament, responsible for proclamation.
RCMP Royal Canadian Mounted Police Act, Parts VI,
establishing RCMP Public Complaints Commission, and VII, creating statutory scheme for investigation of public com plaints — Appeal from stated case raising questions as to Commission's jurisdiction to entertain complaints based on events occurring prior to coming into force of Parts VI and VII — Parts VI and VII not retrospective — Intended to protect public by exposure and punishment of wrongdoers and to
protect Force members from unfounded allegations Part VII imposing new disabilities and duties — New group (non- members) included in coverage — Not merely procedural as public scrutiny legislated for first time.
This was an appeal from the trial judgment upon a stated case holding that the new Parts VI and V11 of the Royal Canadian Mounted Police Act were retrospective. Part VI,
which was proclaimed in force December 18, 1986, established the RCMP Public Complaints Commission. Part VII was proclaimed in force September 30, 1988 and set out the statu tory scheme for the investigation of public complaints about the conduct of Force members. Prior to the amending Act, there was only an internal review procedure established by adminis trative act of the Commissioner. The stated case raised ques tions as to the jurisdiction of the Commission to entertain complaints based upon facts occurring at various times prior to the coming into force of Parts VI, VII and the amending Act itself (assented to March 26, 1986). After finding that the amendments were not purely procedural, the Trial Judge applied Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301, which recognized an exception to the general rule that statutes are prima facie prospective, applicable to enact ments whose object is not to punish offenders but to protect the public, even though they may incidentally impose a penalty on a person related to a past event. MacKay J. concluded that as Parts VI and VII were enacted primarily to protect the public, and that any effect upon vested rights was subordinate to the public protection intended, the presumption against retrospec- tivity was rebutted. He found these conclusions supported by the necessary implication of the statute. The respondent sup ported the Trial Judge's reasoning with respect to his interpre tation of Brosseau as establishing a public-interest exception to the presumption against retrospectivity, but contended that Parts VI and VII merely created a new procedure for the investigation of public complaints and that, as procedural legis lation, the presumption against retrospective application of statutes did not apply. It argued that the absence of powers allowing the Commission to impose sanctions of any kind upon RCMP personnel showed the non-punitive and merely proce dural character of Part VII. The appellant supported the Trial Judge's holding that Parts VI and VII were not merely proce dural, but sought to limit his public-interest exception to the presumption against retrospectivity. The issues were whether Brosseau had been correctly interpreted and whether Parts VI and VII were merely procedural.
Held, the appeal should be allowed.
The Act is not retrospective, but prospective. The various dates referred to in the questions and complaints in the stated case were all before the operative time of the statute.
Since L'Heureux-Dubé J. in dealing with the retrospectivity question in Brosseau relied upon Driedger's work, Construction of Statutes, that author's analysis of "External Sources of Parliamentary Intent" and his subtle distinction between retroactivity and retrospectivity had to be scrutinized. A retroactive statute operates backwards, i.e. is operative as of a time prior to its enactment, either by being deemed to have come into force at a time prior to its enactment (e.g., budgetary measures) or by being expressed to be operative with respect to
past transactions as of a past time (e.g., acts of indemnity). A retrospective statute changes the law only for the future but looks backward by attaching new consequences to completed transactions. It opens up closed transactions and changes their consequences as of the future. A statute can be both retroactive and retrospective. The statute herein is not retroactive, though arguably retrospective.
In Driedger's analysis, the presumption against retrospectivi- ty needs to be distinguished from that against vested rights. The former is prima facie and applies unless it is rebutted, unlike the latter which may be invoked only when a statute is reasonably susceptible of two meanings. Impairment of existing rights is a frequently intended consequence of statutes and therefore the presumption against non-interference with vested rights applies only in the case of ambiguity in the statutory language, i.e. one looks first to the statute, and then to the presumption only if the intent is unclear. He concluded that there are three kinds of retrospective statutes, the last of which imposed a penalty on a person who is described by reference to a prior event, but the penalty was not intended as further punishment for the event. This did not attract the presumption against retrospectivity. L'Heureux-Dubé J. delineated a sub- category thereof: enactments which may impose a penalty on a person related to a past event, so long as the goal of the penalty is not to punish the person but to protect the public. She then returned to Driedger for the statement that if the intent is to punish, the presumption applies, but if the punishment is intended to protect the public, the presumption does not apply. What this meant was that there is an exception to the presump tion against retrospectivity where there is (1) a statutory disqualification, (2) based on past conduct, (3) which demon strates a continuing unfitness for the privilege in question. This narrow exception to the general presumption was much more limited in scope than the Trial Judge's holding that an excep tion occurs whenever the statutory purpose may be conceptual ized in broad terms as the protection of the public, whatever may be the effect upon the subordinate value of vested rights or interests. The actual holding of Brosseau had no application herein since there is no question of continuing unfitness.
There cannot be any public-interest or public-protection exception, writ large, to the presumption against retrospectivity because every statute can be said to be in the public interest or for the public protection. No Parliament ever deliberately legislates against the public interest but always visualizes its legislative innovations as being for the public good. If there is a public-interest exception it must be reducible to a matter of legislative intent (whether Parliament intended prospectivity or retrospectivity) whether derived from a presumption or from the statute itself.
Looking to the mischief it was designed to meet, and by analysing the provisions of the amending Act, particularly in relation to the antecedent Act, the legislation was intended to protect the public, by exposure and punishment of wrongdoers, and RCMP members and non-members from unsupported accusations. Part VII imposed new disabilities (as to reputation and discipline) and new duties (as to responding to complaints) on RCMP personnel, one of the purposes of which was punish ment where fault was found. The inclusion of a whole new group in the coverage of possible disciplinary proceedings (non- members) and Parliament's extreme care in delineating protec tions for those complained against establish not only that it did not intend retrospective operation, but that it intended only prospective operation.
The presumption against retrospectivity does not apply to procedural legislation. The test for procedural legislation was established by La Forest J. in Angus v. Sun Alliance Insurance Co.: normally, rules of procedure do not affect the content or existence of an action or defence, but only the manner of its enforcement or use. Applying this test, the legislation at issue was not procedural. What was legislated was not just a manner of scrutiny, but the very existence of public scrutiny for the first time.
That the legislation came into force at different times with varying effects did not imply that Parliament intended any part of the Act to have retrospective effect. Proclamation is an executive act. The coming into force of legislation does not depend upon Parliament, but upon the executive. Parliament may have intended that the various parts of the amending Act should all come into force at the same time.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 17.
Inquiries Act, R.S.C., 1985, c. I-11.
Public Service Employment Act, R.S.C., 1985, c. P-33.
Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 2, 5, 10, 25, 26, Parts VI (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16), VII (as enacted idem).
CASES JUDICIALLY CONSIDERED
APPLIED:
In re Athlumney, Ex parte Wilson, [1898] 2 Q.B. 547; Nova, An Alberta Corporation v. Amoco Canada Petroleum Co. Ltd. et al., [1981] 2 S.C.R. 437; (1981), 32 A.R. 613; 128 D.L.R. (3d) 1; [1981] 6 W.W.R. 391; 38 N.R. 381; Quebec (Attorney General) v. Healey,
[1987] 1 S.C.R. 158; (1987), 6 O.A.C. 56; 73 N.R. 288; Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256; (1988), 65 O.R. (2d) 638; 52 D.L.R. (4th) 193; 34 C.C.L.I. 237; 47 C.C.L.T. 39; [1988] I.L.R. 1-2370; 9 M.V.R. (2d) 245; 87 N.R. 200; 30 O.A.C. 210.
DISTINGUISHED:
Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; (1989), 57 D.L.R. (4th) 458; [1989] 3 W.W.R. 456; 93 N.R. 1; Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687; (1979), 105 D.L.R. (3d) 609; 79 CLLC 14,223; 28 N.R. 494 (C.A.); Re Royal Insurance Co. of Canada and Ontario Human Rights Commission et al. (1985), 51 O.R. (2d) 797; 21 D.L.R. (4th) 764; 12 C.C.L.I. 297; [1985] I.L.R. 1-1944; 12 O.A.C. 206 (Div. Ct.); R v Secretary of State for Trade and Industry, ex p R, [1989] 1 All ER 647 (Q.B.D.); Wildman v. The Queen, [1984] 2 S.C.R. 311; (1984), 12 D.L.R. (4th) 641; 14 C.C.C. (3d) 321; 55 N.R. 27; 5 O.A.C. 241.
REVERSED:
Royal Canadian Mounted Police Act (Can.) (Re), [1990] 2 F.C. 750 (T.D.).
CONSIDERED:
Gustayson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; (1975), 66 D.L.R. (3d) 449; [1976] CTC 1; 75 DTC 5451; 75 N.R. 401; Attor ney General of Quebec v. Expropriation Tribunal et al., [1986] 1 S.C.R. 732; (1986), 66 N.R. 380; Upper Canada College v. Smith (1920), 61 S.C.R. 413; 57 D.L.R. 648; [1921] 1 W.W.R. 1154; Acme Village School District (Board of Trustees of) v. Steele-Smith, [1933] S.C.R. 47; Snider v. Edmonton Sun et al. (1988), 93 A.R. 26; 55 D.L.R. (4th) 211; 63 Alta. L.R. (2d) 289 (C.A.); Reg. v. Vine (1875), 10 L.R.Q.B. 195; Re A Solicitor's Clerk, [1957] 3 All E.R. 617 (Q.B.D.); Barry and Brosseau v. Alberta Securities Commission (1986), 67 A.R. 222; 25 D.L.R. (4th) 730; 24 C.R.R. 9 (CA.).
REFERRED TO:
Martineau et al. v. Matsqui Institution Inmate Discipli nary Board, [1978] 1 S.C.R. 118; (1977), 74 D.L.R. (3d) 1; 33 C.C.C. (2d) 366; 14 N.R. 285.
AUTHORS CITED
Canada. House of Commons Debates, Vol. V, 1st Sess., 33rd Parl., 34 Eliz. II, 1985.
Canada. Report of the Commission of Inquiry Relating to Public Complaints, Internal Discipline and Griev ance Procedure within the Royal Canadian Mounted Police, Ottawa: Information Canada, 1976, (The Marin Commission Report).
Coté, Pierre-André The Interpretation of Legislation in Canada, Cowansville, Qué.: Editions Yvon Blais Inc., 1984.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Driedger, Elmer A. "Statutes: Retroactive, Retrospective Reflections" (1978), 56 Can. Bar Rev. 264.
Maxwell on the Interpretation of Statutes, 12th ed. by P. St. J. Langan, London: Sweet & Maxwell Ltd., 1969.
COUNSEL:
Barbara A. Mcisaac, Q.C. for appellant. Eleanore A. Cronk and Peter A. Downard for respondent.
SOLICITORS:
Deputy Attorney General of Canada for appellant.
Fasken, Campbell, Godfrey, Toronto, for respondent.
The following are the reasons for judgment rendered in English by
MACGUIGAN J.A.: This is an appeal from a judgment of MacKay J. of April 9, 1990 [[1990] 2 F.C. 750], upon a special case stated by the parties for the opinion of the Trial Division pursuant to paragraph 17(3)(b) of the Federal Court Act, R.S.C., 1985, c. F-7, as to the retrospectivity of new Parts VI and VII of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 ("the Act"), which were introduced by an amending Act assented to March 26, 1986, S.C. 1986, c. 11 [R.S.C., 1985 (2nd Supp.), c. 8, s. 16] ("the amending Act"). Part VI of the Act merely estab lished the Royal Canadian Mounted Police Public. Complaints Commission ("the Commission"), the respondent herein. Part VII is the operative part of the public complaints process. By it the Commis sion was authorized to entertain complaints by members of the public concerning the conduct, in the performance of any duty or function under the Act, of any member of the Royal Canadian Mounted Police ("the RCMP") or any other person appointed or employed under the authority of the Act.
Part VI was proclaimed in force as of December 18, 1986; Part VII as of September 30, 1988.
The stated case raised specific questions as to the jurisdiction of the Commission to entertain certain complaints concerning the conduct of members or employees of the RCMP based upon facts alleged to have occurred at various times prior to the coming into force of Part VII, Part VI and the amending Act itself respectively.
In the agreed statement of facts, the six stated complaints were divided into three categories (A, B and C) representing the three general situations which gave rise to the retrospectivity issue.
In each of the three category A complaints the conduct complained of allegedly occurred before the date of proclamation of Part VII but after the date of proclamation of Part VI. As well, com plaint A-2 had been disposed of under the old RCMP Act prior to the proclamation of Part VII.
In the one complaint in the B category the conduct complained of allegedly occurred before the date of proclamation of Part VI, but after the date of royal assent to the amending Act. The complaint had also been disposed of under the old Act before the proclamation of Part VII.
In the two category C complaints the conduct complained of allegedly occurred before the date of royal assent to the amending Act. In complaint C-1 the complainant had previously complained to the RCMP and was informed by it after the proclamation of Part VII that the Force would take no further steps with respect to his complaint.
Since in my view the details of the complaints are not relevant to the decision to be reached, I set them out only in an Appendix.
The relevant sections of the Act are as follows:
2. (1) In this Act,
"Commission" means the Royal Canadian Mounted Police Public Complaints Commission established by section 45.29;
"Commission Chairman" means the Chairman of the Commission;
"Commissioner" means the Commissioner of the Royal Canadian Mounted Police;
"Force" means the Royal Canadian Mounted Police;
Commissioner
5. (1) The Governor in Council may appoint an officer, to be known as the Commissioner of the Royal Canadian Mount ed Police, who, under the direction of the Minister, has the control and management of the Force and all matters connect ed therewith.
PART VI
ROYAL CANADIAN MOUNTED POLICE PUBLIC COMPLAINTS COMMISSION
Establishment and Organization of Commission
45.29 (1) There is hereby established a commission, to be known as the Royal Canadian Mounted Police Public Com plaints Commission, consisting of a Chairman, a Vice-Chair man, a member for each contracting province and not more than three other members, to be appointed by order of the Governor in Council.
(6) No member of the Force is eligible to be appointed or to continue as a member of the Commission.
45.3 (1) The Commission Chairman is the chief executive officer of the Commission and has supervision over and direc tion of the work and staff of the Commission.
Annual Report
45.34 The Commission Chairman shall, within three months after the end of each fiscal year, submit to the Minister a report of the activities of the Commission during that year and its recommendations, if any, and the Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the day the Minister receives it.
PART VII
PUBLIC COMPLAINTS
Receipt and Investigation of Complaints
45.35 (1) Any member of the public having a complaint concerning the conduct, in the performance of any duty or function under this Act, of any member or other person appointed or employed under the authority of this Act may, whether or not that member of the public is affected by the subject-matter of the complaint, make the complaint to
(a) the Commission;
(b) any member or other person appointed or employed under the authority of this Act; or
(c) the provincial authority in the province in which the subject-matter of the complaint arose that is responsible for the receipt and investigation of complaints by the public against police.
(2) Every complaint under subsection (1) shall be acknowl edged in writing, if the complaint is in writing or if the complainant requests that the complaint be so acknowledged.
(3) The Commissioner shall be notified of every complaint under subsection (1).
(4) Forthwith after being notified of a complaint under subsection (3), the Commissioner shall notify in writing the member or other person whose conduct is the subject-matter of the complaint of the substance of the complaint unless, in the Commissioner's opinion, to do so might adversely affect or hinder any investigation that is being or may be carried out in respect of the complaint.
45.36 (I) The Commissioner shall consider whether a com plaint under subsection 45.35(1) can be disposed of informally and, with the consent of the complainant and the member or other person whose conduct is the subject-matter of the com plaint, may attempt to so dispose of the complaint.
(2) No answer or statement made, in the course of attempt ing to dispose of a complaint informally, by the complainant or the member or other person whose conduct is the subject- matter of the complaint shall be used or receivable in any criminal, civil or administrative proceedings other than, where the answer or statement was made by a member, a hearing under section 45.1 into an allegation that with intent to mislead the member gave the answer or statement knowing it to be false.
(3) Where a complaint is disposed of informally, a record shall be made of the manner in which the complaint was disposed of, the complainant's agreement to the disposition shall be signified in writing by the complainant and the member or other person whose conduct is the subject-matter of the complaint shall be informed of the disposition.
(4) Where a complaint is not disposed of informally, the complaint shall be investigated by the Force in accordance with rules made pursuant to section 45.38.
(5) Notwithstanding any other provision of this Part, the Commissioner may direct that no investigation of a complaint under subsection 45.35(1) be commenced or that an investiga tion of such a complaint be terminated if, in the Commission er's opinion,
(a) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided under any other Act of Parliament;
(b) the complaint is trivial, frivolous, vexatious or made in bad faith; or
(c) having regard to all the circumstances, investigation or further investigation is not necessary or reasonably practicable.
(6) Where the Commissioner makes a direction in respect of a complaint pursuant to subsection (5), the Commissioner shall give notice in writing to the complainant and, if the member or other person whose conduct is the subject-matter of the com plaint has been notified under subsection 45.35(4), to that member or other person, of the direction and the reasons
therefor and the right of the complainant to refer the complaint to the Commission for review if the complainant is not satisfied with the direction.
45.37 (1) Where the Commission Chairman is satisfied that there are reasonable grounds to investigate the conduct, in the performance of any duty or function under this Act, of any member or other person appointed or employed under the authority of this Act, the Commission Chairman may initiate a complaint in relation thereto and where the Commission Chair man does so, unless the context otherwise requires, a reference hereafter in this Part to a complainant includes a reference to the Commission Chairman.
(2) The Commission Chairman shall notify the Minister and the Commissioner of any complaint initiated under subsection (1).
(3) Forthwith after being notified of a complaint under subsection (2), the Commissioner shall notify in writing the member or other person whose conduct is the subject-matter of the complaint of the substance of the complaint unless, in the Commissioner's opinion, to do so might adversely affect or hinder any investigation that is being or may be carried out in respect of the complaint.
(4) A complaint under subsection (1) shall be investigated by the Force in accordance with rules made pursuant to section 45.38.
45.38 The Commissioner may make rules governing the procedures to be followed by the Force in notifying persons under this Part and investigating, disposing of or otherwise dealing with complaints under this Part.
45.39 The Commissioner shall notify in writing the complai nant and the member or other person whose conduct is the subject-matter of the complaint of the status of the investiga tion of the complaint to date not later than forty-five days after being notified of the complaint and monthly thereafter during the course of the investigation unless, in the Commissioner's opinion, to do so might adversely affect or hinder any investiga tion that is being or may be carried out in respect of the complaint.
45.4 On completion of the investigation of a complaint, the Commissioner shall send to the complainant and the member or other person whose conduct is the subject-matter of the com plaint a report setting out
(a) a summary of the complaint;
(b) the results of the investigation;
(c) a summary of any action that has been or will be taken with respect to resolution of the complaint; and
(d) in the case of a complaint under subsection 45.35(1), the right of the complainant to refer the complaint to the Com mission for review if the complainant is not satisfied with the disposition of the complaint by the Force.
Reference to Commission
45.41 (1) A complainant under subsection 45.35(1) who is not satisfied with the disposition of the complaint by the Force or with a direction under subsection 45.36(5) in respect of the complaint may refer the complaint in writing to the Commis sion for review.
(2) Where a complainant refers a complaint to the Commis sion pursuant to subsection (1),
(a) the Commission Chairman shall furnish the Commis sioner with a copy of the complaint; and
(b) the Commissioner shall furnish the Commission Chair man with the notice under subsection 45.36(6) or the report under section 45.4 in respect of the complaint, as the case may be, and such other materials under the control of the Force as are relevant to the complaint.
45.42 (I) The Commission Chairman shall review every complaint referred to the Commission pursuant to subsection 45.41(1) or initiated under subsection 45.37(1) unless the Commission Chairman has previously investigated, or institut ed a hearing to inquire into, the complaint under section 45.43.
(2) Where, after reviewing a complaint, the Commission Chairman is satisfied with the disposition of the complaint by the Force, the Commission Chairman shall prepare and send a report in writing to that effect to the Minister, the Commission er, the member or other person whose conduct is the subject- matter of the complaint and, in the case of a complaint under subsection 45.35(1), the complainant.
(3) Where, after reviewing a complaint, the Commission Chairman is not satisfied with the disposition of the complaint by the Force or considers that further inquiry is warranted, the Commission Chairman may
(a) prepare and send to the Minister and the Commissioner a report in writing setting out such findings and recommen dations with respect to the complaint as the Commission Chairman sees fit;
(b) request the Commissioner to conduct a further investiga tion into the complaint; or
(c) investigate the complaint further or institute a hearing to
inquire into the complaint. •
45.43 (1) Where the Commission Chairman considers it advisable in the public interest, the Commission Chairman may investigate, or institute a hearing to inquire into, a complaint concerning the conduct, in the performance of any duty or function under this Act, of any member or other person appointed or employed under the authority of this Act, whether or not the complaint has been investigated, reported on or otherwise dealt with by the Force under this Part.
(2) Notwithstanding any other provision of this Part, where the Commission Chairman investigates, or institutes a hearing to inquire into, a complaint pursuant to subsection (1), the Force is not required to investigate, report on or otherwise deal with the complaint before the report under subsection (3) or the interim report under subsection 45.45(14) with respect to the complaint has been received by the Commissioner.
(3) On completion of an investigation under paragraph 45.42(3)(c) or subsection (1), the Commission Chairman shall prepare and send to the Minister and the Commissioner a report in writing setting out such findings and recommenda tions with respect to the complaint as the Commission Chair man sees fit unless the Commission Chairman has instituted, or intends to institute, a hearing to inquire into the complaint under that paragraph or subsection.
45.44 (1) Where the Commission Chairman decides to institute a hearing to inquire into a complaint pursuant to
subsection 45.42(3) or 45.43(1), the Commission Chairman shall assign the member or members of the Commission to conduct the hearing and send a notice in writing of the decision to the Minister, the Commissioner, the member or other person whose conduct is the subject-matter of the complaint and, in the case of a complaint under subsection 45.35(1), the complainant.
(2) Where a complaint that is to be the subject of a hearing concerns conduct occurring in the course of providing services pursuant to an arrangement entered into under section 20, the member of the Commission appointed for the province in which the conduct occurred shall be assigned, either alone or with other members of the Commission, to conduct the hearing.
45.45 (1) For the purposes of this section, the member or members conducting a hearing to inquire into a complaint are deemed to be the Commission.
(2) The Commission shall serve a notice in writing of the time and place appointed for a hearing on the parties.
(3) Where a party wishes to appear before the Commission, the Commission shall sit at such place in Canada and at such time as may be fixed by the Commission, having regard to the convenience of the parties.
(4) The Commission has, in relation to the complaint before it, the powers conferred on a board of inquiry, in relation to the matter before it, by paragraphs 24.1(3)(a), (b) and (c).
(5) The parties and any other person who satisfies the Commission that the person has a substantial and direct inter est in a complaint before the Commission shall be afforded a full and ample opportunity, in person or by counsel, to present evidence, to cross-examine witnesses and to make representa tions at the hearing.
(6) The Commission shall permit any person who gives evidence at a hearing to be represented by counsel.
(7) In addition to the rights conferred by subsections (5) and (6), the appropriate officer may be represented or assisted at a hearing by any other member.
(8) Notwithstanding subsection (4), the Commission may not receive or accept
(a) subject to subsection (9), any evidence or other informa tion that would be inadmissible in a court of law by reason of any privilege under the law of evidence;
(b) any answer or statement made in response to a question described in subsection 24.1(7), 35(8), 40(2), 45.1(11) or 45.22(8);
(c) any answer or statement made in response to a question described in subsection (9) in any hearing under this section into any other complaint; or
(d) any answer or statement made in the course of attempt ing to dispose of a complaint under section 45.36.
(9) In a hearing, no witness shall be excused from answering any question relating to the complaint before the Commission when required to do so by the Commission on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.
(10) Where the witness is a member, no answer or statement made in response to a question described in subsection (9) shall be used or receivable against the witness in any hearing under section 45.1 into an allegation of contravention of the Code of
Conduct by the witness, other than a hearing into an allegation that with intent to mislead the witness gave the answer or statement knowing it to be false.
(11) A hearing to inquire into a complaint shall be held in public, except that the Commission may order the hearing or any part of the hearing to be held in private if it is of the opinion that during the course of the hearing any of the following information will likely be disclosed, namely,
(a) information the disclosure of which could reasonably be expected to be injurious to the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities;
(b) information the disclosure of which could reasonably be expected to be injurious to law enforcement; and
(c) information respecting a person's financial or personal affairs where that person's interest outweighs the public's interest in the information.
(12) Any document or thing produced pursuant to this section to the Commission shall, on the request of the person producing the document or thing, be released to that person within a reasonable time after completion of the final report under subsection 45.46(3).
(13) Where the Commission sits at a place in Canada that is not the ordinary place of residence of the member or other person whose conduct is the subject-matter of the complaint, of the complainant or of the counsel of that member or other person or that complainant, that member or other person, complainant or counsel is entitled, in the discretion of the Commission, to receive such travel and living expenses incurred by the member or other person, complainant or counsel in appearing before the Commission as may be fixed by the Treasury Board.
(14) On completion of a hearing, the Commission shall prepare and send to the Minister and the Commissioner a report in writing setting out such findings and recommenda tions with respect to the complaint as the Commission sees fit.
(15) In this section and section 45.46, "parties" means the appropriate officer, the member or other person whose conduct is the subject-matter of a complaint and, in the case of a complaint under subsection 45.35(1), the complainant.
45.46 (I) On receipt of a report under subsection 45.42(3), 45.43(3) or 45.45(14), the Commissioner shall review the complaint in light of the findings and recommendations set out in the report.
(2) After reviewing a complaint in accordance with subsec tion (1), the Commissioner shall notify the Minister and the Commission Chairman in writing of any further action that has been or will be taken with respect to the complaint, and where the Commissioner decides not to act on any findings or recom mendations set out in the report, the Commissioner shall include in the notice the reasons for not so acting.
(3) After considering a notice under subsection (2), the Commission Chairman shall prepare and send to the Minister, the Commissioner and the parties a final report in writing setting out such findings and recommendations with respect to the complaint as the Commission Chairman sees fit.
45.47 The Commissioner shall
(a) establish and maintain a record of all complaints received by the Force under this Part; and
(b) on request, make available to the Commission any infor mation contained in the record.
The Trial Judge looked to the authorities for the general principles on retrospective operation of statutes. He recited the general rule that statutes are prima facie prospective, and considered the exception that the presumption against retrospec- tivity does not apply to legislation concerned merely with matters of procedure or of evidence. On this he held as follows (at pages 769-770):
1 am of the opinion that the provisions introduced by Part VII of the Act go beyond a mere procedural change to the previously existing arrangements. I understand the test for whether a provision is substantive or procedural, as set out in Angus v. Sun Alliance Insurance Co., to be expressed in the following question: Does the provision affect substantive rights? It is not enough to ask whether the provisions are provisions which affect procedure — one must ask whether they affect procedure only and do not affect substantive rights of the parties.
In this case, it is clear that the provisions introduced in Part VII affect procedural rights. Beyond those, however, other rights of the parties are also affected. The former RCMP complaints procedure contained no provision for an independ ent public review, such as that now set out in Part VII to be carried out by the Commission, a body external to the RCMP itself. As counsel for the Attorney General has pointed out, the review process by the Commission, as set out in Part VII, is an external process involving a newly created body which had no role or function in connection with the former RCMP com plaints procedure. This is a change which has an effect on the content or existence of a right. It creates a new right to external, public review of RCMP conduct, and for most com plaints it will extend the time taken for consideration of complaints, it may involve hearings, generally in public, and until matters are finally disposed of the uncertainties attendant on the process will be extended.
Consequently, I am not persuaded, despite submissions of counsel for the Commission, that Parts VI and VII of the Act establish only a new procedure for the investigation of public complaints against members of the RCMP. The exemption from the general presumption against retrospectivity afforded procedural legislation does not, therefore, assist greatly in construing the intent and purposes of the legislation here in question.
In turning next to the question whether the Act in the case at bar fell under any other exception to the general presumption against retrospectivity,
MacKay J. looked closely at the recent Supreme Court decision in Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301, a case which dealt in part with whether action taken by the Alberta Securities Commission under a revised Securities Act [S.A. 1981, c. S-6.1] attracted the presumption against retrospectivity. L'Heureux- Dubé J. for the Court recognized an exception to the general rule in the case of enactments whose object is not to punish offenders but to protect the public, even though such enactments may inciden tally impose a penalty on a person related to a past event. She concluded (at page 321):
The provisions in question are designed to disqualify from trading in securities those persons whom the Commission finds to have committed acts which call into question their business integrity. This is a measure designed to protect the public, and it is in keeping with the general regulatory role of the Commis sion. Since the amendment at issue here is designed to protect the public, the presumption against the retrospective effect of statutes is effectively rebutted.
In the view of the Trial Judge, Brosseau was directly on point and he therefore concluded (at pages 774-775):
I am prepared to conclude that Parts VI and VII in the amendments to the Act were enacted with the primary objec tive of protecting the public and the RCMP itself from the risk of an apprehension of or actual bias in dealing with complaints about police conduct. Prior to these amendments, the RCMP itself was functioning as the sole arbiter of complaints made against it. The opportunity for independent and open review by the Commission of RCMP disposal of complaints can only enhance confidence of the general public in the force and in its activities.
In my view the dominant objective of Parts VI and VII of the Act is the advancement of a public purpose, the protection of the public. To the extent these amendments may be said to affect vested rights or interests, or to lead to punishment for past conduct, that is subordinate to the dominant objective here, just as it was, in a different context, in Brosseau. In light of the dominant purpose here, the protection of the public interest, the presumption against retrospective application of Part VII, to conduct occurring before its proclamation in force, is rebutted.
The Trial Judge found this conclusion also sup ported by the necessary implication of the statute. He stated (at page 778):
From the general circumstances concerning the enactment and its possible application, from my earlier conclusion that the objective of Parts VI and VII was to provide protection of public interests, and that any effect upon vested rights or interests is subordinate to the public protection intended, I find that Parliament intended, by necessary implication, that the Commission would be concerned with complaints initiated by submission to the Commission, or referred to the Commission, after September 30, 1988 when Part VII came into force, whether the conduct upon which the complaint is based occurred before or after that date.
On the question of how far back the retrospec tive application of Parts VI and VII may reach, he concluded (at pages 779-780):
find that having concluded that Parts VI and VII have a retrospective application based on the principle that the pre sumption against retrospectivity was rebutted by the provisions' objective of protection of the public, and that this objective or purpose implies an intention that the legislation have retrospec tive application to all cases which independent review would serve to settle in the manner prescribed by Part VII, it is inappropriate to assign a date to which retrospective applica tion should be limited.
In the same vein the Trial Judge held that, since Parts VI and VII have retrospective application, a "complainant" under subsection 45.35(1), as referred to by subsection 45.41 (1), must refer to any person having made a complaint to RCMP or provincial authorities, at whatever time made (at page 783):
Having determined already that Parts VI and VII of the Royal Canadian Mounted Police Act have a retrospective application, I am of the opinion that the interpretation of the phrase "a complainant under subsection 45.35(1)" as used in subsection 45.41(1) which should be adopted is the one which is the most likely to facilitate the objective of the Act. Thus, any complainant taking the steps to initiate a complaint which that subsection describes, whether those steps be before or after subsection 45.35(1) was in force, may if dissatisfied with RCMP handling of his or her complaint, refer the matter to the Commission. I place reliance, in this regard, on section 12 of the Interpretation Act.
Finally, with respect to the statutory discretion as to whether to investigate or initiate a hearing, both parties submitted that the person or body upon whom discretion has been conferred has implicit jurisdiction to decline to deal with the case if, due to the passage of time, proceeding with it would prejudice the persons to be affected thereby or the investigation to be conducted. The Trial Judge held that it is the Chairman, not the Com-
mission itself, who has the ultimate obligation as to complaints, and that his discretion is a broad one (at pages 786-787):
Where there has been such delay in referring a complaint to the Commission that its investigation or review would likely be prejudiced, or parties concerned in regard to the complaint would be prejudiced, or any other unfairness would result, that surely would be a factor to be considered by the Chairman in reaching a conclusion whether in all the circumstances, disposi tion of the complaint by the RCMP is satisfactory. In that determination the Chairman clearly has discretion. For exam ple, if the conduct complained of would be akin to that raising issues of civil liability, statutes of limitations may suggest time periods for considering past conduct. But, if the conduct com plained of would be criminal in nature it is relevant to keep in mind that no limitation period would by itself preclude possible prosecution. These considerations, and others may be relevant in a given case in the determination by the Chairman whether he or she is satisfied or dissatisfied with disposition of the complaint by the RCMP.
Finally, it may be trite to add that in relation to the initiation of a complaint pursuant to section 45.37 by the Chairman, there can be no question that such a step is completely within the Chairman's discretion.
In summary, the Trial Judge set out the ques tions asked in the stated case and his answers to them (at pages 787-789):
Question 1 — Does the Commission, in connection with Part VII of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, as amended by S.C. 1986, c. 11 (the "Act"), have jurisdiction to entertain complaints numbered "A-1", "A-2" and "A-3", respectively, described in Schedule "A" to the attached agreed statement of facts, having regard to the fact that:
(a) the original conduct complained of in complaints "A-1", "A-2" and "A-3", respectively, allegedly occurred prior to September 30, 1988 but on or after December 18, 1986, that is, prior to the proclamation of Part VII of the Act but on or after the proclamation of Part VI of the Act; and
(b) the original complaint made by the complainant in each of complaints "A-1", "A-2" and "A-3", respectively, was not made in the first instance at a time when subsec tion 45.35(1) of the Act was in force.
Answer to Question 1
Yes, the Commission has jurisdiction to consider these com plaints if the Commission Chairman decides, pursuant to sub section 45.44(1), to institute a hearing to inquire into these complaints.
Until that decision by the Commission Chairman complaints referred to the Commission are matters for consideration of the Chairman in accord with duties assigned to the Chairman under the Act (sections 45.32(2), 45.41(2)(a) and 45.42).
Question 2 — Does the Commission, in connection with Part VII of the Act, have jurisdiction to entertain complaint numbered "B-1" described in Schedule "B" to the attached agreed statement of facts, having regard to the fact that:
(a) the original conduct complained of in complaint "B-1" allegedly occurred prior to December 18, 1986 but on or after March 26, 1986, that is, prior to proclamation of either of Parts VII or VI of the Act, but on or after the date upon which the Act received Royal Assent; and
(b) the original complaint made by the complainant in complaint "B-1" was not made in the first instance at a time when subsection 45.35(1) of the Act was in force.
Answer to Question 2
Yes, the Commission has jurisdiction to consider this complaint in the same circumstances as are outlined in the answer to Question 1.
Question 3 — Does the Commission, in connection with Part VII of the Act, have jurisdiction to entertain complaint numbered "C-1" as described in Schedule "C" to the attached agreed statement of facts, having regard to the fact that:
(a) the original conduct complained of in complaint "C-1" allegedly occurred prior to March 26, 1986, that is, prior to the proclamation of either of Parts VII or VI of the Act and prior to the date upon which the Act received Royal Assent; and
(b) the original complaint made by the complainant in complaint "C-1" was not made in the first instance at a time when subsection 45.35(1) of the Act was in force.
Answer to Question 3
Yes, the Commission has jurisdiction to consider this complaint in the same circumstances as are outlined in the answer to Question I.
Question 4 — Does the Commission, in connection with Part VII of the Act, have jurisdiction to entertain complaint numbered "C-2" as described in Schedule "C" to the attached agreed statement of facts, having regard to the fact that the conduct complained of in complaint "C-2" allegedly occurred prior to March 26, 1986, that is, prior to the proclamation of either of Parts VII or VI of the Act and prior to the date upon which the Act received Royal Assent?
Answer to Question 4
Assuming the complaint was initiated by being made to the Commission in accord with paragraph 45.35(1)(a), then
a) the complaint shall be acknowledged (subsection 45.35(2));
b) the Commissioner of the RCMP shall be notified of the complaint (subsection 45.35(3)); and
c) the Commission may not "entertain" the complaint fur ther unless the Chairman of the Commission, pursuant to subsection 45.44(l), decides to institute a hearing to inquire into this complaint.
Question 5 — If the answer to question 3 above is in the affirmative, does the Commission have jurisdiction, in rela tion to complaint numbered "C-1":
(a) to decline to entertain the complaint at all;
(b) to decline to investigate the complaint; or
(c) to decline to hold a hearing to inquire into the complaint
if it appears to the Commission that a period of time between the date upon which the conduct complained of is alleged to have occurred and the date upon which complaint numbered "C-1" was referred to the Commission has elapsed which, in the opinion of the Commission, is likely to prejudice the review of complaint numbered "C-1" or the person whose conduct is complained of in complaint numbered "C-1"?
Answer to Question 5
No, the Commission does not have jurisdiction or discretion to
make any of the decisions here suggested.
The Chairman of the Commission has preliminary duties under the Act:
— to furnish the Commissioner with a copy of the complaint (paragraph 45.41(2)(a)),
— to review the complaint (subsection 45.42(1)),
—to determine whether he or she is satisfied or dissatisfied with the disposition of the complaint by the RCMP (subsec- tions 45.42(2) and (3)). In that determination where the delay or lapse of time, from the date of the conduct giving rise to the complaint until the date of referral to the Com mission, is likely to prejudice review of the complaint or the parties concerned with the complaint, or is otherwise likely to lead to unfairness, this may be a factor among circumstances considered by the Chairman in his or her decision.
Question 5 and the Trial Judge's answer to it were not put in issue on this appeal.
II
The respondent supported the reasoning of the Trial Judge with respect to his interpretation of Brosseau as establishing a public-interest excep tion to the presumption against retrospectivity, but also contended that Parts VI and VII, as purely procedural amendments, fell squarely as well within the exception enjoyed by purely procedural statutes, a matter on which I shall set out the law in Part IV infra. The respondent also argued the implied intention of Parts VI and VII, and submit ted an additional consideration based upon subsec tion 45.41(1). The appellant, while supporting the Trial Judge's holding that Parts VI and VII did not deal with merely procedural matters, generally sought to limit the Trial Judge's public-interest exception to the presumption against retrospectivi- ty, which he had based upon Brosseau. The correct
interpretation of Brosseau is therefore key to the resolution of this point.
Since L'Heureux-Dubé J. dealt with the retros- pectivity question in Brosseau within the frame work established by Driedger, Construction of Statutes, 2nd ed., Toronto, 1983,' I believe Driedger's analysis of "External Sources of Parlia mentary Intent" (Chapter 10, at pages 183-221) deserves close scrutiny.
It may be useful to recall at the beginning Driedger's subtle distinction between retrospectivi- ty and retroactivity, * at pages 185 ff.
A retroactive statute is one that operates back wards, i.e., that is operative as of a time prior to its enactment, either by being deemed to have come into force at a time prior to its enactment (e.g., budgetary measures) or by being expressed to be operative with respect to past transactions as of a past time (e.g., acts of indemnity). A retroactive statute is easier to recognize because the retroac- tivity is usually express.
A retrospective statute, on the other hand, changes the law only for the future but looks backward by attaching new consequences to com pleted transactions. It thus opens up closed trans actions and changes their consequences as of the future.
A statute can be both retroactive and retrospec tive. The statute in the case at bar is not, however, retroactive, though it is arguably retrospective.
' She supplemented this with a quotation from his article, "Statutes: Retroactive, Retrospective Reflections" (1978), 56 Can. Bar Rev. 264, at p. 275.
* Editor's Note: In French, "rétroactivité" covers both con cepts. For the purposes of this analysis, however, "rétroactif" was rendered by "rétroactif' and "retrospective" by "rétro- spectif'. Elsewhere in these reasons, "retrospective" was ren dered by "rétroactif".
In Driedger's analysis, the presumption as to retrospective operation needs to be carefully distin guished from that against interference with vested rights. The latter is not a prima facie presumption but rather one that may be invoked only when a statute is reasonably susceptible of two meanings (supra, at page 185) whereas the retrospective presumption is a prima facie one, which applies unless it is rebutted (supra, at page 189). The reason for this is that impairment of existing rights is a frequently intended consequence of statutes, 2 and therefore the presumption against non-inter ference with vested rights applies only in the case of ambiguity in the statutory language, i.e., one looks first to the statute, and to the presumption only secondarily, if the intent is unclear.
Driedger states that the confusion between the two presumptions is found in two early Supreme Court decisions, Upper Canada College v. Smith (1920), 61 S.C.R. 413; and Acme Village School District (Board of Trustees of) v. Steele-Smith, [1933] S.C.R. 47, both relied on heavily by the respondent in the case at bar. In his view both cases are pure "vested rights" cases, which are only prospective in operation. Neither case was cited by L'Heureux-Dubé J., undoubtedly because she was in agreement with Driedger's thesis.
Driedger's analysis proceeds (supra, at pages 197-198):
As has here already been indicated, a retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only; it is prospective, but it imposes new results in respect of a past
2 Accordingly, in Gustayson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271, at pp. 282-283, Dickson J. [as he then was] held for the Supreme Court that a taxpayer had no vested right to claim tax deductions in the future: "A taxpayer may plan his financial affairs in reliance on the tax laws remaining the same; he takes the risk that the legislation may be changed." Gustayson was followed in Attor ney General of Quebec v. Expropriation Tribunal et al., [1986] 1 S.C.R. 732 where the Supreme Court held that the Crown's right to discontinue an expropriation unilaterally was not a vested right but only a possibility or an option, and that this right was abolished by the new Expropriation Act [R.S.Q. 1977, c. E-24].
event. A retroactive statute operates backwards. A retrospec tive statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event.
Unless a clear distinction is made between the two words, there is bound to be confusion. Thus, a statute could be retroactive but not retrospective, retrospective but not retroac tive, or both retroactive and retrospective; and both retroactive statutes and retrospective statutes could be, and usually are, prospective also. The presumption applies to both, but the test of retroactivity is different from that of retrospectivity. For retroactivity the question is: Is there anything in the statute to indicate that it must be deemed to be the law as of a time prior to its enactment? For retrospectivity the question is: Is there anything in the statute to indicate that the consequences of a prior event are changed, not for a time before its enactment, but henceforth from the time of enactment, or from the time of its commencement if that should be later?
But not all retrospective statutes attract the presumption; only those, to use the words of Sedgwick [Statutory Construc tion and Constitutional Law, 2nd ed., New York, 1874, at 160], that
create a new obligation, or impose a new duty or attach a new disability in respect to transactions or considerations already passed.
In brief, the presumption applies only to prejudicial statutes; not beneficial ones.
Thus, there are three kinds of statutes that can properly be said to be retrospective, but there is only one that attracts the presumption. First, there are the statutes that attach benevolent consequences to a prior event; they do not attract the presump tion. Second, there are those that attach prejudicial conse quences to a prior event; they attract the presumption. Third, there are those that impose a penalty on a person who is described by reference to a prior event, but the penalty is not intended as further punishment for the event; these do not attract the presumption.
The threefold division of statutes in the last paragraph of the quotation was set out and explic itly followed by L'Heureux-Dubé J., though noth ing more was said of the first category.' She
3 I Snider v. Edmonton Sun et al. (1988), 93 A.R. 26 (C.A.), at p. 30, Lieberman J.A. wrote for the Court with respect to the first category:
(Continued on next page)
concentrated on the third category of statutes, as follows (at page 319):
A sub-category of the third type of statute described by Driedger is enactments which may impose a penalty on a person related to a past event, so long as the goal of the penalty is not to punish the person in question, but to protect the public.
The two supporting cases cited by L'Heureux- Dubé J., Reg. v. Vine (1875), 10 L.R. Q.B. 195; and Re A Solicitor's Clerk, [1957] 3 All E.R. 617 (Q.B.D.), are in my opinion worth remarking. In the former case a new statutory provision provided that convicted felons were forever disqualified from selling retail spirits. The Court refused to consider the statute as governed by the presump tion against retrospectivity. Cockburn C.J., wrote at pages 199-200:
... here the object of the enactment is not to punish offenders, but to protect the public against public-houses in which spirits are retailed being kept by persons of doubtful character.... the legislature has categorically drawn a hard and fast line, obvi ously with a view to protect the public, in order that places of public resort may be kept by persons of good character; and it matters not for this purpose whether a person was convicted before or after the Act passed, one is equally bad as the other and ought not to be intrusted with a licence.
In the latter case a statutory amendment had allowed the making of orders disqualifying persons convicted of larceny, embezzlement or fraudulent conversion of property from acting as solicitors' clerks. Lord Goddard C.J. wrote (at page 619):
In my opinion, however, this Act is not in truth retrospective. It enables an order to be made disqualifying a person from acting as a solicitor's clerk in the future and what happened in the past is the cause or reason for the making of the order; but the order has no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came into force or before the order was made should be void or voidable or if a penalty were inflicted for having acted in this or any other capacity before the Act came into force or before the order was made. This Act simply enables a disqualification to be imposed for the future which in no way affects anything done by the appellant in the past.
(Continued from previous page)
I am of the respectful view that a statute can only be classed as "benevolent", as that word is used by Driedger when it confers a benefit upon a person without contemporaneously depriving another person of a vested right ... .
On Driedger's analysis Lord Goddard was appar ently another victim of confused terminology. But his message nevertheless is clear: the statute is not retroactive, but retrospective, and is enforceable as an exception to the presumption against retrospec- tivity.
After quoting from these two decisions, L'Heu- reux-Dubé returned to Driedger (at page 320):
Elmer Driedger summarizes the point in "Statutes: Retroac tive, Retrospective Reflections" (1978), 56 Can. Bar Rev. 264, at p. 275:
In the end, resort must be had to the object of the statute. If the intent is to punish or penalize a person for having done what he did, the presumption applies, because a new consequence is attached to a prior event. But if the new punishment or penalty is intended to protect the public, the presumption does not apply.
What this amounts to, it seems to me, is made crystal clear in her final two quotations, taken from Stevenson J.A. (as he then was) of the Alberta Court of Appeal in the same case, sub nom. Barry and Brosseau v. Alberta Securities Commission (1986), 67 A.R. 222, at page 229 (at pages 320-321 S.C.R.):
Stevenson J.A. of the Court of Appeal likened the situation in the present appeal to that in the Re A Solicitor's Clerk case at p. 229:
In my view the principle in the Solicitor's Clerk case is indistinguishable. An additional power is given to the
Commission based on previous conduct. A new pun ishment cannot be added but that is not the nature of the office of ss. 166 and 167. It is the same office that the Solicitor's Clerk case deals with, namely to provide a disqualification based on past conduct which may show unfitness for the exemption. 4
° Stevenson J.A. explained the notion of exemption earlier in his decision (p. 225 A.R.):
The exemption referred to are exemptions from regis tration for certain kinds of trading, exemptions from prospectus requirements in specified cases, and exemp tions regarding some particular bids. The consequence of making any of the requested orders would be to restrict the appellants from engaging in activities which would otherwise be exempt from regulation by the Commission. It is acknowledged that the Commis sion did not have the power to subject these appellants to the kinds of orders envisaged by ss. 165 and 166 under the Act that was in force when the impugned prospectus was delivered.
The present case involves the imposition of a remedy, the application of which is based upon conduct of the appellant before the enactment of ss. 165 and 166. Nonetheless, the remedy is not designed as a punishment for that conduct. Rather, it serves to protect members of the public.
The fact that the relief is not really punitive in nature is supported by the conclusion of Stevenson J.A. that the imposi tion of the new remedy did not lie at the root of the appellant's concern in this matter at p. 229:
In essence, the appellants fear the stigma arising from a finding that they did, or failed to do, what is alleged in the hearing notice. That root concern was well illustrated by the suggestion made in argument that neither would be particularly aggrieved by the remedy being imposed against them, indeed they could accept the remedies, but were concerned about the finding of wrong doing.
The office or function of such statutes is to estab lish some form of legal disqualification rather than to punish as such. In short, there is an exception to the presumption against retrospectivity where there is (1) a statutory disqualification, (2) based on past conduct, (3) which demonstrates a con tinuing unfitness for the privilege in question. To my mind this is quite a narrow exception to the general presumption, one that is very much more limited in scope than the Trial Judge's holding that an exception occurs whenever the statutory purpose may be conceptualized in broad terms as the protection of the public, whatever may be the effect upon the subordinate value of vested rights or interests. The actual holding of Brosseau, as far as I can see, has no possible application to the case at bar, since there is no question here of a continu ing unfitness.
Of course, L'Heureux-Dubé categorizes the kind of statute she is dealing with as only "A sub-cate gory of the third type of statute described by Driedger" (at page 319). Driedger's third type of statute, it will be recalled, is statutes "that impose a penalty on a person who is described by refer ence to a prior event, but the penalty is not intend ed as further punishment for the event" (supra, at page 198). What L'Heureux-Dubé J. describes as a sub-category, is nevertheless expressed in almost identical terms with Driedger's description of the whole category, and appears to exhaust it: in her words, "enactments which may impose a penalty on a person related to the past event, so long as the
goal of the penalty is not to punish the person in question, but to protect the public" (at page 319).
Whether there is a general category broader than the sub-category, it must at least be recog nized that there cannot be any public-interest or public-protection exception, writ large, to the pre sumption against retrospectivity, for the simple reason that every statute, whatever its content, can be said to be in the public interest or for the public protection. No Parliament ever deliberately legis lates against the public interest but always visual izes its legislative innovations as being for the public good.
If there is a public-interest exception at all, therefore, it must in my opinion be reducible to a matter of legislative intent, that is, whether parlia ment intended prospectivity or retrospectivity. All the presumptions in question, after all, are pre sumptions of parliamentary intent. Hence there is nothing inconsistent in seeking to elucidate a pre sumption in the light of textual indications of parliamentary intent, as taken in the total statu tory context. 5 If presumptions can aid intent, why cannot real intent aid fictitious presumptions? Or put more precisely, all that is needed is the intent, whether derived from a presumption or from the statute itself.
Thus the counsel of Wright J. in In re Athlum- ney. Ex parte Wilson, [1898] 2 Q.B. 547 at pages 551-552 was to look to the statute:
Perhaps no rule of construction is more firmly established than this — that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the
5 Such an interpretation of any broader meaning to be given to Driedger's third category brings it very close to his first category, "statutes that attach benevolent consequences to a prior event" (supra, at p. 198) as interpreted by Snider v. Edmonton Sun et al., supra, note 3.
enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.
We also have the authority of the Supreme Court for looking to the text of a statute for resolution of the meaning of such a presumption: Nova, An Alberta Corporation v. Amoco Canada Petroleum Co. Ltd. et al., [1981] 2 S.C.R. 437, where, in the words of L'Heureux-Dubé, supra, at page 318, "Estey J. dealt with the issue of retros- pectivity by scrutinizing the intent behind the par ticular piece of legislation." Moreover, that Court in Quebec (Attorney General) v. Healey, [1987] 1 S.C.R. 158, at pages 166-167 approved the follow ing statements from Maxwell on the Interpreta tion of Statutes, 12th ed., 1969 at pages 215-216:
It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.
If, however, the language or the dominant intention of the enactment so demands, the Act must be construed so as to have a retrospective operation, for "the rule against the retrospective effect of statutes is not a rigid or inflexible rule but is one to be applied always in the light of the language of the statute and the subject-matter with which the statute is dealing."
To reflect on the language of the statute and its subject-matter, we must turn to a close examina tion of the Act itself.
III
It is common ground that the genesis of the amending Act is to be found in The Report of the Commission of Inquiry Relating to Public Com plaints, Internal Discipline and Grievance Proce dure within the Royal Canadian Mounted Police, Information Canada, Ottawa, 1976 (The Marin Commission Report). That Report recommended the creation of a public complaint system opera tionally and functionally distinct from the discipli nary system.
The mischief aimed at by the amending Act is undoubtedly accurately expressed by the following statement of the Marin Commission (at page 97):
The need for an independent authority to review the actions of the Force in handling public complaints is not one based on any discovery of a history of abuse or neglect. On the contrary, we have not found many cases where the Force was not both thorough in its investigation and fair in its disposition of complaints. The need in question is based on perceptions held by many who have difficulty in understanding how the Force can be both the supervisor and final arbiter for public com plaints. Complainants, members involved in complaints and Canadians in general are entitled to an unqualified confidence in the Royal Canadian Mounted Police. In our view, the introduction of an independent review authority will ensure that such confidence is attainable.
As drawn to the Court's attention by the respond ent, this view was echoed by the then Solicitor General in moving second reading of the amending legislation, (Debates of the House of Commons, September 11, 1985, at page 6518):
I see the establishment of the public complaints commission as an amendment of paramount importance. It is a contempo rary response to a need for objective, open and fair handling of complaints against RCMP members in a manner which will command public confidence.
One purpose of the legislation, then, deduced from the mischief at which it was directed, is the protection of the public from having its complaints investigated privately. But it is evident from other clarifying words of the Solicitor General that there is another mischief to be guarded against as well, viz., the pillorying of members of the Force (Debates, September 11, 1985, at page 6519):
The recommendations of the Marin Commission are substan tially implemented in this Act and considerable time and effort has been invested in developing revisions that will support and further the work of the RCMP and adequately preserve the delicate balance between the protection of the rights of the public and the individual members of the RCMP.
This comment would indicate that both mischiefs are being equally guarded against.
A surer way of approaching the problem, it seems to me, is through analysis of the provisions of the amending Act, particularly in relation to the antecedent Act.
As I indicated at the outset, the Commission is established by Part VI of the Act. Part VII then begins (subsection 45.35(1)) with the right of any member of the public having a complaint concern ing the conduct, in the performance of any duty or
function under the Act, of any member or other person appointed or employed under the Act, to make a complaint to the Commission, to any member or other person appointed or employed under the Act, or to any provincial authority responsible for complaints by the public against police. Complaints may also be initiated by the Commission Chairman.
The Commission must notify the Commissioner of every complaint received, and he must deal with every complaint, either informally (on consent) or with an investigation, or without an investigation if he does not deem it warranted or reasonably prac ticable. Where a complaint has been initiated by the Commission Chairman, the Commissioner must investigate it.
Forthwith upon being notified of a complaint, the Commissioner must notify the person com plained against, unless, in his opinion, to do so might adversely affect an investigation.
A complainant who is dissatisfied with the dis position of a complaint by the RCMP may, pursu ant to section 45.41, refer the complaint to the Commission. Upon such referral of a complaint, the Commission is obliged to review the complaint unless it has already investigated it or instituted an inquiry into the matter.
In addition to this duty to review complaints that have been referred, the Chairman has also, by virtue of section 45.43, the power to investigate or institute a hearing into a complaint, whether or not it has been investigated or reported on or otherwise dealt with by the Commissioner where he "consid- ers it advisable in the public interest."
Where the Chairman decides to institute a hear ing, the Chairman assigns a member or members of the Commission to conduct it. For purposes of the hearing, this member or these members are then deemed to be the Commission. There are formalities of notice, and the Commission has the powers conferred on a board of inquiry, including the power of subpoena. The complainant, the RCMP, and the person complained against all have the right to present evidence, to cross-exam-
ine witnesses, to make representations, and to be represented by counsel.
The Commission does not have any power to issue a binding order or direction, but it must, on completion of a hearing, report in writing, to the Commissioner and the Solicitor General, "setting out such findings and recommendations with respect to the complaint as the Commission sees fit."
The Commissioner is required to review the complaint in the light of the findings and recom mendations set out in the report, and reply to the Solicitor General and the Chairman what action, if any, he will take, or with reasons for not acting, if his decision is not to act.
The last word belongs to the Chairman, who must make a final report in writing to the parties, the Solicitor General, and the Commissioner.
Prior to the amending Act, there was no statu tory scheme in place for the investigation of public complaints. There was only an internal review procedure, established by an administrative act of the Commissioner (Bulletin AM-740 of October 19, 1984, set out at Appeal Book I, at pages 32 ff and II, at pages 193 ff). 6 As neither statute law nor regulation, it had no legal status: Martineau et al. v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118, at page 129.
It is also worth noting that the disciplinary offences (major and minor service offences) applied only to members in the pre-amendment Act (sections 25 and 26), so that there could be no statutory review of the conduct of civilian employees of the Force except under the Public Service Employment Act [R.S.C., 1985, c. P-33] (section 10 of . the old Act), whereas of course
6 Counsel for both parties agreed that this Bulletin was not even a Commissioner's Standing Order.
under Part VII public complaints may be brought against such employees.'
It is also noteworthy that Part II of the amend ing Act provided for the creation of an External Review Committee, which plays an important role in the new internal grievance procedure for com plaints by RCMP personnel established by Part III of the amending Act. Part IV of the amending Act instituted a new disciplinary Code of Conduct ,governing the conduct of members of the RCMP, which essentially replaced Part II of the old Act. Part II was proclaimed as law as of December 18, 1986 and Parts III and IV as of June 30, 1988.
IV
It was submitted by the respondent that Parts VI and VII create nothing more than a new procedure for the investigation of public complaints against members of the RCMP, and that, as procedural legislation, the presumption against the retrospec tive application of statutes does not apply.
The law in this respect was shortly stated by La Forest J. for the Supreme Court in Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256, at page 262:
There is a presumption that statutes do not operate with retrospective effect. "Procedural" provisions, however, are not subject to the presumption. To the contrary, they are presumed to operate retrospectively ....
That much is clear. However, as La Forest J. went on to say (at page 262), "The distinction between
' It is of course true, as contended by the respondent, that complaints by the public against non-member personnel could have triggered an inquiry under the Inquiries Act [R.S.C., 1985, c. I-11], but that is equally true of anything and everyone else, and can hardly be seen as a form of review of the conduct of non-members. The companion submission of the respondent that non-member personnel could have been investigated under section 31 of the old Act, which provided for investigations "Whenever it appears ... that a service offence has been committed" makes no sense at all, since a non-member could not be found guilty of a service offence.
substantive and procedural provisions ... is far from clear." To begin with, as stated by Côté, The Interpretation of Legislation in Canada, Cowans- ville, Les Éditions Yvon Blais Inc., 1984, at page 137:
Procedural acts have no retroactive operation, their effect is only immediate
It is not enough for the law to be procedural in nature. For the rule of immediate application to apply, it must, in the specific circumstances in which it will apply, affect "procedure only", it must be a provision of "mere procedure" or "pure procedure".
Côté adds (at page 139):
Thus, a statute is purely procedural if its application affects only the means of exercising a right.
La Forest J. put it this way in Angus (at page 265):
Even if one assumes that the provision in question is proce dural in some sense, the judicially created presumptions regard ing the retrospective effect of procedural rules were not devised with this sort of distinction in mind. Normally, rules of proce dure do not affect the content or existence of an action or defence (or right, obligation, or whatever else is the subject of the legislation), but only the manner of its enforcement or use.
The cases cited by the appellant, Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687 (C.A.); Re Royal Insurance Co. of Canada and Ontario Human Rights Commission et al. (1985), 51 O.R. (2d) 797 (Div. Ct.); and R y Secretary of State for Trade and Industry, ex p R, [1989] 1 All ER 647 (Q.B.D.), all involve, it seems to me, new statutory structures which are both more elaborate and more clearly substantive in their effects on rights than the statute at bar. The instant case is a more borderline one because the Commission is rather like an ombudsman with an opportunity to persuade the ultimate authority, the Commissioner. Indeed, the respondent argued strenuously that the absence of powers allowing the Commission to impose sanctions of any kind upon RCMP personnel shows the non-punitive and merely procedural character of Part VII. Sanc tions as such , can be imposed only by the Commissioner.
Nevertheless, I believe it would be unrealistic to conclude that there will be no effect on those investigated as a result of any investigation under taken, particularly where there is a public hearing. The Commission may operate either as a form of appellate review of an RCMP investigation, or, when the Chairman invokes the public interest, as an external review of first instance. The Act pro vides for subpoenas, oral testimony with cross- examination, arguments by counsel, and a report by the Committee. Parliament itself has in my opinion recognized the effect on the rights of RCMP personnel by providing in subsection 45.45(10) that no answer or statement in response to a question shall be used or receivable against a witness in a disciplinary hearing, except where there is perjury. This indicates clearly enough Parliament's view as to the substantive effect of Part VII. Beyond all this, there is Parliament's addition of non-members to those whose conduct can be scrutinized under the Act. What is legislat ed is clearly not just a manner of scrutiny, but the very existence of public scrutiny for the first time. In terms of the test established by La Forest J. in Angus this is not the kind of procedural legislation that can escape the presumption against retrospec- tivity.,
Hence 1 do not find relevant the respondent's citation of Wildman v. The Queen, [1984] 2 S.C.R. 311, where the Supreme Court held that the incompetence and uncompellability of a wife under the previous law is a merely procedural right, not the result of a substantive right to confidentiality, since the Court obviously found the provision there to be a matter of mere procedure.
I am therefore persuaded by the learned Trial Judge and for the same reasons that this legisla tion does not fall under the exception to the gener al presumption against retrospectivity afforded procedural legislation. As he put it (at page 770):
... the review process by the Commission, as set out in Part VII, is an external process involving a newly created body which had no role or function in connection with the former RCMP complaints procedure. This is a change which has an effect on the content or existence of a right. It creates a new right to external, public review of RCMP conduct, and for most complaints it will extend the time taken for consideration of complaints, it may involve hearings, generally in public, and until matters are finally disposed of the uncertainties attendant on the process will be extended.
V
In my view, the same evidence of parliamentary intention which prove that Parts VI and VII are not a purely procedural exception to the presump tion against retrospectivity also speak to a parlia mentary intention of prospectivity rather than retrospectivity. The introduction of Part VII imposes new disabilities (as to reputation and dis cipline) and new duties (as to responding to com plaints) on RCMP personnel. It cannot realistical ly be said that any such penalties are not intended as punishment for the event. That is indeed one of the purposes, where fault on behalf of RCMP personnel is found. The public is not being protect ed merely against a continuing unfitness as in Brosseau, but by exposure and punishment of wrongdoers. Equally, RCMP members and non members are intended to be protected, as far as possible, from unsupported allegations against them. An RCMP member might have been charged with an offence, tried and acquitted pur suant to the provisions of Part II of the Act as it read prior to these amendments. A retrospective application of Part VII could have the effect of putting that person through an inquiry process a second time. Indeed, there might already have been a conviction under the old Part II and a consequent punishment, but the matter could still be revisited if retrospectivity were recognized.
This is a world removed from the legislation allowed to function retrospectively in Brosseau. Nor does it qualify for any broader meaning of the third category, viz., that it created only benefits
and imposed no obligations. As already observed, the Act imposes disabilities and obligations on a new group, never before scrutinized, i.e., non members.
All of this is not merely to say that Parts VI and VII do not neatly fall within Driedger's third category of presumptions. What is even more important is that the parliamentary intention which is reflected by these provisions does not imply retrospectivity. On the contrary, Parlia ment's, including a whole new group in the cover age of possible disciplinary proceedings and its extreme care in delineating protections for those complained against establish exactly the opposite, viz., that it intended only prospective operation.
The Trial Judge, of course, reached a contrary conclusion as to the necessary implication of the Act, and is supported in that by the respondent. For the TrialJudge, as I read him, this position is principally an elucidation of his previously arrived at conclusion with respect to the Act's falling within the third or excepting category of presump tion, since he draws it [at page 778] "From the general circumstances concerning the enactment and its possible application, from my earlier con clusion that the objective of Parts VI and VII was to provide protection of public interests, and that any effect upon vested rights or interests is subor dinate to the public protection intended". But if the Act is looked at without the belief that it is governed by Brosseau, but merely for indications of Parliament's own intent, then a retrospective interpretation is not, I believe, possible.
For the sake of completeness, however, I should refer specifically to two included considerations taken into account by the Trial Judge under the same rubric (at pages 776-777):
One factor in the general circumstances relating to the enactment and application of Part VII, not referred to by counsel in argument, may have relevance. Other parts of the same amending statute were apparently enacted to implement other recommendations of the Report of the Marin Commis sion. Thus, Part II provided for the creation of the Royal Canadian Mounted Police External Review Committee, and Part III, providing a statutory internal grievance procedure for complaints by members of the RCMP, provides for this Exter nal Review Committee to play an important role in the griev ance process. That role is somewhat comparable to the role of the Public Complaints Commission as an external body with a reviewing function in relation to public grievances. Parts II and III of the Act also came into force by proclamation, at a date earlier than Part VII. It would seem to me anomalous to conclude that Parliament would have intended an external review of internal grievances and an external review of public complaints, both originating from the same Inquiry's Report and both included in the same amending statute, to be effective at different times.
One other factor, touched upon in argument on behalf of the Commission, arises from the implications of the position of the Attorney General that Part VII should not be applied in the case of a complaint alleging conduct that occurred prior to September 30, 1988. If that were the case, it would be neces sary, if public complaints are to be dealt with, that for a considerable time there be two on-going parallel processes for dealing with complaints, one involving the RCMP alone for complaints about conduct occurring before Part VII was in force and the other involving the RCMP and the new Commis sion where the conduct alleged occurred after that date.
Both these factors refer to the supposed anom aly of Parliament's intending to bring different Parts of the amending Act into force at different times with varying effects. Perhaps that was not Parliament's intention, but Parliament well under stands that proclamation is an executive act, and that the coming into force of legislation depends not upon Parliament itself but upon the executive of the day. Nothing in this consideration in my view implies that Parliament intended any part of the Act to have an effect retrospective to the time of its coming into force. Parliament may well have intended that the various parts of the amending Act should all come into force at the same time, but that does not imply that all or any of them should have retrospective effect. That falls to be decided upon an examination of the factors I have already considered.
The respondent also raised an issue as to the interpretation to be given to subsection 45.41(1) of
the Act. In this connection the respondent submit ted that "A complainant under subsection 43.35(1)" of the Act, as it appears in subsection 45.41(1), should be interpreted to include any person who has made a complaint to any of the persons referred to in paragraph 45.35(1)(a), (b), or (c) of the Act, whether or not the complaint was made before the coming into force of Part VII. As an alternative interpretation it was contended that the phrase "A complainant under subsection 45.35(1)" of the Act, as it appears in subsection 45.41(1), should be interpreted to mean a member of the public who initiates a complaint, as distinct from the Chairman of the Commission, who may initiate a complaint under subsection 45.37(1). This latter interpretation may well be the correct one, but this whole argument as to subsection 45.41(1) is, as the Trial Judge rightly found, "sim- ply another way of considering the question of whether Part VII is to have retrospective applica tion to conduct alleged to have occurred before Part VII was in force" (at page 780). It is not, in short, a distinct argument which needs to be treat ed separately, and is answered by the general answer already given.
In summary, the Act as enacted by Parliament, when carefully examined, reveals a concern for those complained against and an enlargement of those subject to complaint in my view wholly inconsistent with retrospectivity. Since in my opin ion the Act is in no way retrospective, the various dates referred to in the questions and complaints in the stated case are all equally before the operative time for the statute, and must therefore all stand or fall together. As I read the statute, they all fall.
In the result the appeal should be allowed, the judgment of the Trial Judge set aside, and the four questions referred to the Court answered in the negative. Because of the referential character of this case, in my opinion there should be no order as to costs.
URIE J.A.: I agree. LINDEN J.A.: I agree.
Appendix Schedule "A" COMPLAINT "A-1"
(a) This complainant alleges that during the evening of June 20, 1988, he entered the 18th floor of a hotel in downtown Toronto in the belief that a meeting he planned to attend was being held there.
(b) The hotel floor in question was occupied by the United States delegation to an economic summit meeting of world leaders being held in Toronto.
(c) The complainant alleges that upon discovering that the room for the meeting in question was empty, he made enquiries of security personnel, who were members of the RCMP.
(d) It is alleged that the officers in question, rather than responding to the enquiries of the complainant, proceeded to arrest the complainant and detain him for over an hour. The complainant alleges that during this time his person and belong ings were searched, attempts were made to ques tion him in spite of his insistence upon the right to remain silent, and he was subjected to various accusations against his good character.
(e) The complainant informed the RCMP of his complaint regarding this conduct by letter dated June 22, 1988, and the complaint was disposed of by the RCMP by letter dated December 5, 1988.
(f) The complaint was referred to the Commission for review by the complainant in writing by letter dated December 15, 1988. Also by letter dated December 15, 1988, the complainant informed the RCMP that he was not satisfied with the disposi tion of his complaint by the RCMP and that the matter would be referred to the Commission.
(g) By letter dated December 29, 1988 to the complainant, the Commission acknowledged receipt of the complaint and informed the complai nant of the jurisdictional questions which had arisen regarding the Commission's authority to review the complaint.
COMPLAINT "A-2"
(a) This complainant alleges that on or about March 8, 1988, he was arrested for a minor offence and held in detention by members of the RCMP.
(b) The complainant alleges that while in custody he was severely beaten by members of the RCMP, as a consequence of which he permanently lost the sight of one eye and sustained a fracture of the left side of his skull, among other injuries.
(c) The complainant informed the RCMP of his complaint in writing on or about March 15, 1988. The RCMP disposed of the complaint by letter to the complainant dated May 20, 1988.
(d) The complaint was communicated in writing to the Commission by the complainant's solicitors by letter dated December 14, 1988.
(e) By letter dated December 21, 1988 the Corn- mission informed the complainant's solicitors of the jurisdictional questions which had arisen regarding the Commission's authority to review the complaint.
(f) By letter dated January 1 9, 1989, the Commis sion again wrote to the complainant's solicitors requesting that the complaint be confirmed in writing and again referring to the jurisdictional questions which had arisen.
(g) By letter dated February 6, 1989 the complai nant's solicitors wrote to the Commission confirm ing the complainant's request that the Commission review the complaint.
(h) By letter dated February 13, 1989 the Com mission acknowledged to the complainant's solici tors receipt of the request that the Commission review the complaint and indicated that the matter of the retrospective application of Part VII of the Act had to be determined before the Commission could proceed with the complaint.
COMPLAINT "A-3"
(a) This complainant is the estate of an individual who died ,on August 28, 1988, allegedly as the result of the unlawful act of another individual
who at this time stands charged with the offence of second degree murder.
(b) The complainant alleges that the person responsible for the deceased's death had been on a "rampage" for approximately 24 hours prior to the deceased's death in the small community in which the person and the deceased resided. It is further alleged that several complaints were made to the community's RCMP detachment during this time about the person alleged to be responsible for the death of the deceased, and that the RCMP failed to take any steps to apprehend that person.
(c) The complainant, through his solicitors, informed the RCMP detachment in question of his complaint by letter dated September 28, 1988.
(d) By letter dated February 15, 1989 from coun sel at the Department of Justice, Canada on behalf of the RCMP to the solicitors for the complainant, the complaint was disposed of by the RCMP on the basis that "no evidence exists to support any alleged negligence of the part of the [RCMP personnel]".
(e) By letter dated February 22, 1989 from the complainant's solicitors to the Commission, the Commission was requested to review the complaint and, further, was requested to investigate the matter further as "the circumstances warrant". The solicitors for the complainant also requested the Commission to hold a public hearing in respect of the disposition of the complaint by the RCMP.
(f) By letter dated March 13, 1989 the solicitors for the complainant again wrote to the Commis sion formally requesting that the Commission review the disposition of the complaint by the RCMP pursuant to subsection 45.41(1) of the Act.
Schedule "B" COMPLAINT "B-1"
(a) This complainant alleges that on October 26, 1986, he was assaulted by a breathalyser techni cian employed by the RCMP while the technician was in the course of measuring his blood alcohol
level. The complainant alleges that he was "choked until blacking out on the floor".
(b) Written complaints dated January 12, 1987 and March 14, 1987, respectively, from the com plainant to the RCMP were disposed of by letter from the RCMP dated March 26, 1987.
(c) By letter dated April 7, 1987 to the RCMP, the complainant again requested an investigation of his complaint.
(d) By letter from the complainant to the Com mission dated December 5, 1988, the complainant informed the Commission of the complaint.
(e) By letter dated December 29, 1988 to the complainant, the Commission acknowledged in writing the complaint made by the complainant regarding the disposition by the RCMP of his complaint and requested the complainant to for ward in writing a request to the Commission seek ing a review of the complaint. In addition, the Commission in its letter of December 29, 1988, informed the complainant of the jurisdictional questions which had arisen regarding the Commis sion's authority to review the complaint.
Schedule "C" COMPLAINT "C"
(a) This complainant alleges that in 1981 the RCMP caused his dismissal from employment by informing his employer that he was a murder suspect.
(b) The Commission has been informed by the complainant that by letter dated December 13, 1988, the RCMP informed the complainant that it would take no further steps with respect to his complaint. The Commission possesses no informa tion at this time as to the date or content of the complainant's original complaint to the RCMP, nor has the Commission been provided with a copy of the RCMP's letter of December 13, 1988.
(c) The complainant was dissatisfied with the dis position of his complaint by the RCMP and com municated his dissatisfaction to the Commission by an undated letter received by the Commission from the complainant on December 30, 1988.
(d) By letter dated January 25, 1989 the Commis sion acknowledged receipt of the complainant's letter indicating dissatisfaction with the disposition by the RCMP of the complaint and, further, informed the complainant of the jurisdictional questions which had arisen regarding the Commis sion's authority to review the complaint.
COMPLAINT "C-2"
(a) This complainant was arrested and charged by the RCMP in May, 1985 with possession of stolen property. The complainant alleges that at the time of his arrest, members of the RCMP fabricated evidence against him, which was subsequently used to secure his conviction on the charge, as a result of which he has spent 30 months in prison.
(b) This complaint was first communicated to the Commission by letter dated January, 29, 1988 8 from the complainant, received by the Commission in January, 1989.
(c) The complainant again wrote to the Commis sion concerning this complaint by letter dated February 24, 1989. In this letter, as well as in his letter dated January 29, 1989, the complainant requested the Commission to investigate his complaint.
(d) The Commission wrote the complainant by letter dated March 13, 1989 acknowledging receipt of the complainant's complaint and inform ing the complainant of the jurisdictional questions which had arisen regarding the Commission's au thority to entertain the complaint.
(e) As set out in paragraph 13 of the agreed statement of facts, prior to the date hereof, this complaint had not been brought formally to the attention of the RCMP by the Commission or its staff or, in so far as the Commission is aware, by any other person.
8 This appears to be an error for 1989.
 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.