Bisaillon v. Keable and Attorney General of Quebec and Attorneys General of Canada, Ontario, New Brunswick and Alberta, (1983) 51 N.R. 81 (SCC)

• Judge: Laskin, C.J.C., Ritchie, Dickson, Beetz, Estey, Chouinard and Lamer, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 13, 1983
• Jurisdiction: Canada (Federal)
• Citations: (1983), 51 N.R. 81 (SCC);51 NR 81;2 DLR (4th) 193;[1983] ACS no 65;1983 CanLII 60 (SCC);[1983] 2 SCR 60;37 CR (3d) 289;4 Admin LR 205;10 WCB 359;7 CCC (3d) 385;[1983] 2 SCR 159;[1983] SCJ No 65 (QL);1983 CanLII 26 (SCC)

Bisaillon v. Keable (1983), 51 N.R. 81 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Bisaillon v. Keable and Attorney General of Quebec (Mis-en-cause) and Attorneys General of Canada, Ontario, New Brunswick and Alberta (Intervenors)

Indexed As: Bisaillon v. Keable and Attorney General of Quebec and Attorneys General of Canada, Ontario, New Brunswick and Alberta

Supreme Court of Canada

Laskin, C.J.C., Ritchie, Dickson, Beetz, Estey, Chouinard and Lamer, JJ.

October 13, 1983.

Summary:

In 1977 the Government of Quebec established the Keable Commission to investigate the manner in which the R.C.M.P. and other police forces exercised their powers and duties in Quebec in 1972-73 with particular reference to certain illegal acts. Included in the Commissioner's mandate was the investigation of "the recruitment of informers by illegal or reprehensible means". During the course of the inquiry the Commissioner asked a police officer to confirm that a certain individual was a police informer under his control. The officer refused to answer the question and applied for a writ of evocation, claiming that the Commissioner's mandate respecting police informers was ultra vires and that, even if the mandate was valid, the Commissioner exceeded his jurisdiction in demanding that the identity of a police informer be revealed. The Quebec Superior Court in a judgment reported [1980] C.S. 13, dismissed the application. The police officer appealed.

The Quebec Court of Appeal in a judgment reported [1980] C.A. 316 dismissed the appeal. The police officer appealed.

The Supreme Court of Canada allowed the appeal and held that the Commissioner exceeded his jurisdiction by violating the common law rule that the identity of police informers may not be revealed.

See also Vignola v. Keable, 51 N.R. 143.

Administrative Law - Topic 2087

Natural justice - Constitution of board or tribunal - Bias - General - The Supreme Court of Canada held that a public inquiry commissioner did not show bias by becoming angered with and threatening contempt proceedings against a police officer for refusing to disclose the identity of a police informer - See paragraphs 64 to 70 - The court held further that asking that the identity of a police informer be revealed was an error of law, but the commissioner did not show bias or hostility thereby - See paragraphs 71 to 73.

Administrative Law - Topic 2087

Natural justice - Constitution of board or tribunal - Bias - General - The Supreme Court of Canada held that in considering the issue of bias a distinction must be drawn between a tribunal which exercises a decisional function and one which does not, such as a public inquiry commission - See paragraph 69.

Administrative Law - Topic 6366

Judicial review - Evocation - Evidence - The Supreme Court of Canada held that on an application for a writ of evocation the allegations of fact must be taken as proved - See paragraph 2.

Administrative Law - Topic 7565

Delegated powers - Subdelegation of powers - Prohibition against delegation by delegate - Delegatus non potest delegare - A public inquiry commissioner was given a mandate to investigate the methods by which police forces in Quebec exercised their powers and duties in 1972-73 with particular reference to certain events - The Supreme Court of Canada held that the mandate was not too vague and did not constitute improper subdelegation to the commissioner to define the object of his mandate - The court held that the power to inquire into specific events incidentally but necessarily included the power to inquire into surrounding and connected events - See paragraphs 51 to 63.

Administrative Law - Topic 7924

Public inquiries - Creation of - Jurisdiction - In 1977 the Government of Quebec established the Keable Commission to investigate the manner in which the R.C.M.P. and other police forces exercised their powers and duties in Quebec in 1972-73 with particular reference to certain illegal acts - The Supreme Court of Canada held that the commissioner's mandate was intra vires the Province, because the manner of exercise of police powers and duties was within the provincial jurisdiction over the administration of justice, notwithstanding that criminal activity was involved - See paragraphs 4 to 50.

Administrative Law - Topic 7961

Public inquiries - Powers of - General - The Supreme Court of Canada held that, where a public inquiry commissioner was given a mandate to inquire into certain specific events, the power incidentally but necessarily included the power to inquire into the surrounding and related events - See paragraph 57.

Constitutional Law - Topic 21

Raising constitutional issues - General - The Supreme Court of Canada stated that the parties are generally left wide latitude in formulating constitutional questions - The court stated, however, that the court is not bound by the questions and is not required to answer them if it may dispose of the appeal without doing so or if the facts do not provide a basis for the questions - The questions may not be used as a means of transforming an ordinary proceeding into a reference - See paragraph 23.

Constitutional Law - Topic 25

Raising constitutional issues - Requirement of proof of constitutional facts - The Supreme Court of Canada held that there must be a factual basis for a constitutional question on appeal - See paragraphs 18-19, 23 to 24.

Constitutional Law - Topic 1581

Extent of powers inferred - Double aspect doctrine - General - The Supreme Court of Canada refused to find that the rule providing for the secrecy of the identity of police informers had a provincial aspect in addition to the federal criminal aspect - See paragraphs 144 to 147.

Constitutional Law - Topic 3611

Paramountcy of federal statutes - Overlapping legislation - General occupied field - The Supreme Court of Canada held that, even if the common law rule providing for the secrecy of the identity of police informers had a provincial aspect, which it did not, the field was already occupied by federal legislation in s. 37 of the Canada Evidence Act and s. 7(2) of the Criminal Code of Canada, which rendered Article 308 of the Quebec's Code of Civil Procedure inoperative - See paragraphs 148 to 155.

Constitutional Law - Topic 6496

Federal jurisdiction - Criminal law - Identity of police informers - The Supreme Court of Canada held that the common law rule providing for the secrecy of the identity of police informers was purely a matter of criminal law within federal jurisdiction and a provincial legislature had no jurisdiction to modify it - See paragraphs 135 to 155.

Constitutional Law - Topic 7411

Provincial jurisdiction - Administration of justice - Law enforcement or police power - The Supreme Court of Canada held that the Quebec legislature properly mandated a public inquiry commissioner to investigate the methods by which police forces in Quebec exercised their powers and duties, notwithstanding that the police methods under investigation constituted criminal activity and touched national security - See paragraphs 30 to 37.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informers - The Supreme Court of Canada held that the Keable Commission exceeded its jurisdiction by asking a police officer to reveal the identity of a police informer - The court held that Article 308 of the Quebec Code of Civil Procedure did not abrogate the common law rule providing for the secrecy of the identity of police informers and, further, that a provincial legislature had no jurisdiction to modify the rule, which was criminal in nature and within federal jurisdiction - See paragraphs 74 to 155.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informers - The Supreme Court of Canada discussed the nature and scope of the common law ruling providing for the secrecy of the identity of police informers - The rule is applicable in both criminal and civil matters - The court privilege in its nature and the procedure applicable to it - The court must apply the rule on its own motion and the Crown may not waive it, although an informer may be able to - Further, a police officer not only may not disclose an informant's identity in court, but also outside court - See paragraphs 86 to 113.

Statutes - Topic 1570

Interpretation - Construction where meaning is not plain - Implied meaning - Express language necessary - Alteration of clear or fundamental principal of law - The Supreme Court of Canada held that the common law rule providing for the secrecy of the identity of police informers could not be modified without clear and specific language - The court held that Article 308 of the Quebec Code of Civil Procedure did not affect the rule (it would have been ultra vires if it had) - See paragraphs 130 to 131.

Statutes - Topic 1624

Interpretation - Extrinsic aids - Other statutes - Prior statutes respecting same subject matter - The Supreme Court of Canada in construing Article 308 of the Quebec Code of Civil Procedure considered prior versions of it - See paragraphs 114 to 120.

Statutes - Topic 1650

Interpretation - Extrinsic aids - Legislative history - Reports of commissions and public inquiries - The Supreme Court of Canada in construing Article 308 of the Quebec Code of Civil Procedure considered the report of the commissioners for the codification of the common law subject matter of Article 308 - See paragraph 122.

Statutes - Topic 5943

Operation and effect - Effect on common law - Codifications - The Supreme Court of Canada held that Article 308 of the Quebec Code of Civil Procedure was a codification of the common law respecting Crown privilege, but only with regard to two of its aspects and did not extend to the rule providing for the secrecy of the identity of police informers - See paragraphs 123 to 132.

Cases Noticed:

Keable and A.G.Q. v. A.G. of Canada et al., [1979] 1 S.C.R. 218; 24 N.R. 1, appld. [para. 5].

Vadeboncoeur v. Landry, [1977] 2 S.C.R. 179; 10 N.R. 409, appld. [para. 23].

Saulnier v. Quebec Police Commission, [1976] 1 S.C.R. 572; 6 N.R. 541, appld. [para. 49].

Putman v. A.G. of Alberta, [1981] 2 S.C.R. 267; 37 N.R. 1; 28 A.R. 387, appld. [para. 49].

Ratnagopal v. Attorney General, [1970] A.C. 974, dist. [para. 59].

Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 69].

R. v. Samson (1977), 35 C.C.C.(2d) 258, refd to. [para. 80].

Marshall v. R., [1961] S.C.R. 123, consd. [paras. 80, 153].

Solicitor General of Canada et al. v. Royal Commission of Inquiry into Confidentiality of Health Records, [1981] 2 S.C.R. 494; 38 N.R. 588, appld. [para. 87].

Marks v. Beyfus (1980), 25 Q.B.D. 494, consd. [para. 90].

D. v. National Society for the Prevention of Cruelty to Children, [1978] A.G. 171, consd. [para. 91].

Humphry v. Archibald (1893), 20 O.A.R. 267, refd to. [para. 90].

Rogers v. Home Secretary, [1973] A.C. 388, consd. [para. 98].

Reference re Legislative privilege (1978), 39 C.C.C.(2d) 226, refd to. [para. 93].

Langelier v. Giroux (1931), 52 Q.B. 113, refd to. [para. 113].

Lamb v. Benoit, [1959] S.C.R. 321, refd to. [para. 113].

Controni v. Quebec Police Commission, [1978] 1 S.C.R. 1048; 18 N.R. 541, refd to. [para. 113].

Canadian Broadcasting Corporation v. Quebec Police Commission, [1979] 2 S.C.R. 618; 28 N.R. 541, refd to. [para. 113].

Health Records Case - see Solicitor General of Canada v. Royal Commission Inquiry.

Minister of National Revenue v. Die-Plast Co., [1942] Q.B. 342, consd. [para. 115].

Gugy v. Maquire (1863), 13 L.C.R. 33, consd. [para. 115].

Alain v. Belleau (1897), 1 R.P. 98, consd. [para. 116].

Hebert v. Latour (1914), 15 R.P. 5, consd. [para. 116].

Rheault v. Landry (1919), 55 C.S. 1, consd. [para. 116].

Boyer v. Boyer, [1946] R.P. 174, consd. [para. 116].

Duncan v. Cammell, Laird and Co., [1942] A.C. 624, refd to. [para. 117].

Gagnon v. Quebec Securities Commission, [1965] S.C.R. 73, consd. [para. 119].

Human Rights Commission v. Attorney General of Canada, [1982] 1 S.C.R. 215; 41 N.R. 318, refd to. [para. 125].

R. v. Snider, [1954] S.C.R. 479, refd to. [para. 127].

Conway v. Rimmer, [1968] A.C. 910, refd to. [para. 127].

Re Inquiry into the Confidentiality of Health Records in Ontario (1979), 98 D.L.R.(3d) 704, revd [1981] 2 S.C.R. 474; 38 N.R. 588, consd. [para. 138].

R. v. Lalonde (1971), 15 C.R.N.S. 1, consd. [para. 143].

Hodge v. R. (1883-84), 9 A.C. 117, consd. [para. 145].

Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396, consd. [para. 145].

O'Grady v. Sparling, [1960] S.C.R. 804, consd. [para. 145].

Statutes Noticed:

Constitution Act, 1867, sect. 91(27) [para. 145].

Charter of Human Rights and Freedoms, S.Q. 1975, c. 6, sect. 9 [para. 77].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 7(2) [para. 151]; sect. 127(2) [para. 103].

Evidence Act, R.S.C. 1970, c. E-10, sect. 37 [paras. 80, 152].

Federal Court Act, R.S.C. 1970, 2nd Supp., c. 10, sect. 41 [paras. 79, 125].

Public Inquiry Commission Act, R.S.Q. 1964, c. 11.

Quebec Code of Civil Procedure, art. 295, art. 297, art. 307 [para. 77]; art. 308 [paras. 77, 121]; art. 313 [para. 77].

Authors and Works Noticed:

Wigmore, Evidence At Trials At Common Law (McNaughton Revd. Ed. 1961), vol. 8, p. 766 [paras. 100, 101].

Counsel:

Paul Normandin, Q.C., and Guy Lafrance, for the appellant;

Jacques Bellemarre, Q.C., and Jean-Pierre Lussier, for the respondent;

William J. Atkinson and Louis Crete, for the Attorney General of Quebec;

James Mabbutt, for the Attorney General of Canada;

Lorraine E. Weinrib, for the Attorney General for Ontario;

Patricia L. Cumming, for the Attorney General for New Brunswick;

William Henkel, Q.C., for the Attorney General for Alberta.

This case was heard on March 3 and 4, 1982, at Ottawa, Ontario, before Laskin, C.J.C., Ritchie, Dickson, Beetz, Estey, Chouinard and Lamer, JJ., of the Supreme Court of Canada.

On October 13, 1983, Beetz, J., delivered the following judgment for the Supreme Court of Canada: