O'Hara and Kirkbride v. British Columbia, (1987) 80 N.R. 127 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, LaForest and L'Heureux-Dubé, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 19, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 80 N.R. 127 (SCC);3 WCB (2d) 166;19 BCLR (2d) 273;[1988] 1 WWR 216;[1987] SCJ No 69 (QL);1987 CanLII 45 (SCC);[1987] 2 SCR 591;38 CCC (3d) 233;45 DLR (4th) 527;80 NR 127

O'Hara v. B.C. (1987), 80 N.R. 127 (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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Terrance Patrick O'Hara and John Earl Kirkbride v. Her Majesty The Queen in Right of the Province of British Columbia, the Attorney General of the Province of British Columbia, Malcolm A. Matheson, Mary Saunders and Richard M. MacIntosh and Attorney General for Ontario, Attorney General of Quebec, Attorney General for New Brunswick and Attorney General for Alberta

(20260)

Indexed As: O'Hara and Kirkbride v. British Columbia

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, LaForest and L'Heureux-Dubé, JJ.

November 19, 1987.

Summary:

A young man was arrested for drunkenness by the Vancouver City Police. Several hours later he was released from the city jail with a severely injured knee, which he said resulted from an assault by police officers. An internal police investigation yielded insufficient evidence of identification to prosecute and the police took no further action. A subsequent inquiry under the Police Act concluded that the man was assaulted by police officers, but that there was no reliable evidence of identification. A civil action by the man against the police officers was settled and the city paid. Then the Lieutenant Governor in Council appointed a commission to inquire into the matter. The officers were summoned to appear. They petitioned for an order that the inquiry was ultra vires the province as an infringement of the federal criminal jurisdiction.

The British Columbia Supreme Court in a judgment reported [1986] 4 W.W.R. 729; 28 C.C.C.(3d) 489; 3 B.C.L.R.(2d) 77, dismissed the petition and held that the inquiry was within the provincial jurisdiction over the administration of justice. The police officers appealed.

The British Columbia Court of Appeal in a judgment reported [1987] 3 W.W.R. 362; 33 C.C.C.(3d) 90; 36 D.L.R.(4th) 308, dismissed the appeal. The police officers appealed.

The Supreme Court of Canada, Estey, J., dissenting, dismissed the appeal.

Constitutional Law - Topic 7411

Provincial jurisdiction - Administration of justice - Law enforcement or police powers - A young man arrested for drunkenness was severely injured while in jail, allegedly by one or more city police officers - The province appointed a commission to inquire into and report on the alleged wrongdoing of police officers with a view to determining, inter alia, who injured the man - The commission had the power to compel examination of witnesses under oath - The Supreme Court of Canada held that the provincial jurisdiction over the administration of justice in s. 92(14) of the Constitution Act, 1867, authorized the province to establish an inquiry to investigate and report on alleged wrongdoings committed by members of a police force under its jurisdiction and to enable such an inquiry to conduct compulsory examination of witnesses - The court stated that the control and discipline of police forces is necessary to the administration of justice, notwithstanding the existence of a criminal aspect.

Cases Noticed:

Nelles et al. v. Grange et al. (1984), 9 D.L.R.(4th) 79; 3 O.A.C. 40, consd. [para. 9].

R. v. Hoffmann-La Roche Ltd. (Nos. 1 & 2) (1981), 33 O.R.(2d) 694, consd. [para. 9].

Attorney General of Canada v. Canadian National Transportation Ltd., [1983] 2 S.C.R. 206; 49 N.R. 241, consd. [paras. 9, 18].

Faber v. R., [1976] 2 S.C.R. 9; 6 N.R. 1 (Fr.); 8 N.R. 29 (Eng.), consd. [paras. 10, 16, 28].

Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; 20 N.R. 243, consd. [paras. 10, 16].

Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152; 8 N.R. 361, consd. [paras. 10, 16].

Bisaillon v. Keable, [1983] 2 S.C.R. 60; 51 N.R. 81, consd. [paras. 10, 16].

Reference Re Adoption Act, [1938] S.C.R. 398, appld. [para. 14].

Putnam and Cramer v. Attorney General of Alberta, [1981] 2 S.C.R. 267; 37 N.R. 1; 28 A.R. 387, folld. [para. 16].

Kelly & Sons v. Mathers (1915), 23 D.L.R. 225, consd. [para. 16].

Batary v. Attorney General for Saskatchewan, [1965] S.C.R. 465, consd. [paras. 18, 27].

Statutes Noticed:

Constitution Act, 1867, sect. 91(27), sect. 92(14), sect. 92(16).

Inquiry Act, R.S.B.C. 1979, c. 198, sect. 8.

Counsel:

Richard R. Sugden and George Sourisseau, for the appellant, O'Hara;

A.G. Henderson, for the appellant, Kirkbride;

Brian R.D. Smith, Q.C., and E. Robert A. Edwards, Q.C., for the respondents, Her Majesty the Queen and the Attorney General of British Columbia;

Lucy Cecchetto, for the intervenor, Attorney General for Ontario;

Yves de Montigny, for the intervenor, Attorney General of Quebec;

Grant S. Garneau, for the intervenor, Attorney General for New Brunswick;

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

Solicitors of Record:

Davis & Company, Vancouver, British Columbia, for the appellant, Kirkbride;

The Ministry of the Attorney General, Victoria, British Columbia, for the respondents, Her Majesty the Queen and the Attorney General of British Columbia;

The Ministry of the Attorney General, Toronto, Ontario, for the intervenor, the Attorney General for Ontario;

Yves de Montigny, Sainte-Foy, Quebec, for the intervenor, the Attorney General of Quebec;

Gordon F. Gregory, Fredericton, New Brunswick, for the intervenor, the Attorney General for New Brunswick;

The Attorney General's Department, Edmonton, Alberta, for the Attorney General for Alberta.

This case was heard on June 2, 1987, at Ottawa, Ontario, before Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ., of the Supreme Court of Canada.

On November 19, 1987, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Dickson, C.J.C. (Beetz, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, concurring) - see paragraphs 1 to 24;

Estey, J., dissenting - see paragraphs 25 to 34.