MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry), (1989) 94 N.S.R.(2d) 1 (SCC)

• Judge: Lamer, Wilson, La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 05, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1989), 94 N.S.R.(2d) 1 (SCC)

MacKeigan, J.A. v. Royal Comm. (1989), 94 N.S.R.(2d) 1 (SCC);

    247 A.P.R. 1

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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T. Alexander Hickman, Lawrence A. Poitras and Gregory Thomas Evans (appellants) v. Ian M. MacKeigan, Gordon L.S. Hart, Malachi C. Jones, Angus L. Macdonald and Leonard L. Pace (respondents) and Attorney General of Quebec, Attorney General of Nova Scotia and Donald Marshall Jr. (interveners)

(21315)

Donald Marshall Jr. (appellant) v. Ian M. MacKeigan, Gordon L.S. Hart, Malachi C. Jones, Angus L. Macdonald and Leonard L. Pace (respondents) and T. Alexander Hickman, Lawrence A. Poitras, Gregory Thomas Evans, Attorney General of Quebec and Attorney General of Nova Scotia (interveners)

(21351)

Indexed As: MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry)

Supreme Court of Canada

Lamer, Wilson, La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin, JJ.

October 5, 1989.

Summary:

In 1971 Donald Marshall, Jr. was convicted of murder. An appeal from conviction was dismissed by the Nova Scotia Court of Appeal, in a judgment reported 4 N.S.R.(2d) 517. Several years later doubt about the correctness of the conviction arose from both new evidence and the changed stories of witnesses called at the trial, including Marshall. The Minister of Justice in 1982 referred the conviction to the Court of Appeal for review under s. 617(b) of the Criminal Code. The Court of Appeal heard new evidence and witnesses and in a judgment reported 57 N.S.R.(2d) 286; 120 A.P.R. 286, quashed the conviction on the ground that on the evidence no reasonable jury would have convicted Marshall. In 1986 the provincial government appointed a Royal Commission under the Public Inquiries Act to investigate the Marshall case. The Commission issued "Orders to Attend" to the five Court of Appeal judges who sat on the Marshall Reference, requiring them to testify at the inquiry. The Commission wanted answers respecting the following three matters: (1) the inclusion of Pace, J.A., on the panel hearing the Reference (Pace, J.A., was Attorney General of Nova Scotia when Marshall was convicted); (2) the composition of the record that was in fact before the Court of Appeal on the Reference; and (3) questions with regard to what the factors were which, in the opinion of the Chief Justice, constituted a miscarriage of justice and with regard to whether in fact there was such a miscarriage of justice. The judges applied for various prerogative relief, seeking to quash the "Orders to Attend" on the ground that they were immune from compelled testimony respecting their decision.

The Nova Scotia Supreme Court, Trial Division, in a judgment reported 85 N.S.R.(2d) 219; 216 A.P.R. 219, held that the "Orders to Attend" were ultra vires and beyond the authority of the Commission. The court held that the Court of Appeal judges were entitled to total judicial immunity and that they were neither competent nor compellable to testify on matters which came before them in their judicial capacity. The commission and Marshall appealed.

The Nova Scotia Supreme Court, Appeal Division, in a judgment reported 87 N.S.R.(2d) 443; 222 A.P.R. 443, dismissed the appeal. The commission and Marshall appealed.

The Supreme Court of Canada, Cory and Wilson, JJ., dissenting in part, dismissed the appeal. McLachlin, J. (L'Heureux-Dubé, Gonthier, Lamer and La Forest, JJ., concurring), held that ss. 3 and 4 of the Public Inquiries Act did not empower the commission to compel the judges to testify as to any of the three questions. McLachlin, J., also held that the provincially appointed commission's inquiry into a reference by the federal Minister of Justice under s. 617(b) of the Criminal Code did not trench on the exclusive federal power with respect to the criminal law.

Administrative Law - Topic 7924

Public inquiries - Creation of - Jurisdiction - The Supreme Court of Canada referred to whether a provincially appointed commission could inquire into a reference by the federal Minister of Justice under s. 617(b) of the Criminal Code or whether such inquiry was invalid for trenching on the exclusive federal power respecting the criminal law - The court stated that the question was whether the inquiry was "into the administration of justice" (provincial jurisdiction) or "into the criminal law" (federal jurisdiction) - The court stated that the province had constitutional jurisdiction to inquire into the investigation, charging, prosecution, conviction and subsequent release of a man wrongfully convicted of murder, as they were matters respecting the administration of justice in Nova Scotia - The matters did not constitute an attempt to interfere with the valid federal interest in the enactment of and provision for a uniform system of procedure and rules governing criminal practice in the country - See paragraphs 50 to 54.

Administrative Law - Topic 7995

Public inquiries - Practice - Examination of witnesses - Judges - [See Courts - Topic 313 below].

Constitutional Law - Topic 7402

Provincial jurisdiction - Administration of justice (s. 92(14)) - Extent of power or subject matter - Public inquiries - [See Administrative Law - Topic 7924 above].

Courts - Topic 310

Judges - Independence of judiciary - Requirements - The Supreme Court of Canada referred to three "essential conditions" for judicial independence: (1) security of tenure; (2) financial security; and (3) the institutional independence of judicial tribunals regarding matters affecting adjudication - The court stated that "judicial independence as a constitutional principle fundamental to the Canadian system of government possesses both individual and constitutional elements. Actions by the other branches of government which undermine the independence of the judiciary therefore attack the integrity of our Constitution. As protectors of our Constitution, the courts will not consider such intrusions lightly" - See paragraph 33.

Courts - Topic 313

Judges - Independence of judiciary - Judicial immunity - The Nova Scotia Court of Appeal, in a 1983 Reference under s. 617(b) of the Criminal Code, acquitted an accused wrongfully convicted of murder in 1971 - A Royal Commission under the Public Inquiries Act, R.S.N.S. 1967, c. 250, subpoenaed the five Court of Appeal justices to testify before the inquiry respecting (1) the inclusion of Pace, J.A., on the panel hearing the reference (he was Attorney General of Nova Scotia when the accused was wrongfully convicted); (2) the composition of the record that was in fact before the Court of Appeal on the reference; and (3) questions with regard to what the factors were which, in the opinion of the Chief Justice, constituted a miscarriage of justice and whether there was in fact a miscarriage - The Supreme Court of Canada held that ss. 3 and 4 of the Public Inquiries Act, as a matter of statutory construction, did not empower the commission to compel the justices to testify respecting (1) how or why they reached a particular decision; (2) the record relied on; or (3) why a particular judge sat on a particular case - The court discussed both the absolute and qualified immunity of superior court judges.

Evidence - Topic 5608

Witnesses - Competency and compellability - Particular persons - Judges - [See Courts - Topic 313 above].

Cases Noticed:

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1, consd. [para 32].

Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1, consd. [para. 32].

Knowles' Trial (1692), 12 How. St. Tr. 1167, refd to. [para. 41].

Zanatta v. McCleary, [1976] 1 N.S.W.L.R. 230 (C.A.), refd to. [para. 42].

Duke of Buccleuch v. Metropolitan Board of Works (1872), 41 L.J. Ex. 137, refd to. [para. 42].

McKinley v. McKinley, [1960] 1 All E.R. 476 (Q.B.), refd to. [para. 42].

Scott v. Smith (1931), 4 M.P.R. 23 (N.B.C.A.), refd to. [para. 42].

Clendenning and Board of Police Commissioners for the City of Belleville, Re (1976), 75 D.L.R.(3d) 33 (Ont. H.C.), refd to. [para. 42].

Reinking, Re (1984), 3 O.A.C. 137 (C.A.), refd to. [para. 42].

Family and Children's Services v. P.B. and M.B. (1985), 49 R.F.L.(2d) 55 (Ont. Dist. Ct.), refd to. [para. 42].

R. v. Moran (1987), 21 O.A.C. 257 (C.A.), refd to. [para. 42].

Agnew v. Ontario Association of Architects (1987), 26 O.A.C. 354; 64 O.R.(2d) 8 (Div. Ct.), refd to. [para. 42].

Eccles v. Bourque, [1975] 2 S.C.R. 739; 3 N.R. 259, refd to. [para. 44].

Di Iorio and Fontaine v. Warden of the Common Jail Of Montreal et al., [1978] 1 S.C.R. 152; 8 N.R. 361, appld. [para. 52].

Keable and Attorney General of Quebec v. Attorney General of Canada et al., [1979] 1 S.C.R. 218; 24 N.R. 1, refd to. [para. 54].

O'Hara and Kirkbride v. British Columbia, [1987] 2 S.C.R. 591; 80 N.R. 127, refd to. [para. 54].

Chandler, U.S. District Judge v. Judicial Council of the 10th Circuit (1970), 398 U.S. 74, refd to. [para. 68].

Landreville v. The Queen, [1977] 2 F.C. 726 (T.D.), refd to. [para. 68].

In the Matter of Certain Complaints Under Investigation by an Investigating Committee of the Judicial Council of the Eleventh Circuit (1986), 783 F.2d 1488 (11th Cir.), refd to. [para. 69].

Carey v. Ontario, [1986] 2 S.C.R. 637; 72 N.R. 81; 20 O.A.C. 81, refd to. [para. 85].

United States v. Nixon (1974), 418 U.S. 683, refd to. [para. 85].

Jabour v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307; 43 N.R. 451, refd to. [para. 101].

Statutes Noticed:

Constitution Act, 1867, sect. 92(14) [para. 51].

Criminal Code, R.S.C. 1970, c. C-34, sect. 617(b) [para. 2].

Criminal Code, R.S.C. 1985, c. C-46, sect. 690(b) [para. 20].

Judges Act, R.S.C. 1985, c. J-1, Part II [para. 100].

Public Inquiries Act, R.S.N.S. 1967, c. 250, sect. 1 [para. 51]; sect. 3, sect. 4 [para. 28].

Supreme Court Act, R.S.C. 1970, c. S-19 [para. 37].

Authors and Works Noticed:

Driedger, E.A., Construction of Statutes (2nd Ed. 1983), p. 66 [para. 30].

Hogg, Peter W., Constitutional Law of Canada (2nd Ed.), p. 134 [para. 101].

Lederman, W.R., The Independence of the Judiciary (1956), 34 Can. Bar Rev. 769, p. 1139 [para. 67].

Wigmore, Evidence in Trials at Common Law (McNaughton Rev. 1961), p. 2192 [para. 80].

Counsel:

James MacPherson, B.A. Crane, Q.C., and W. Spicer, for T. Alexander Hickman, Lawrence A. Poitras and Gregory Thomas Evans;

Clayton Ruby, for Donald Marshall, Jr.;

R.J. Downie, Q.C., and F.P. Crooks, for Ian M. MacKeigan, Gordon L.S. Hart, Malachi C. Jones, Angus L. Macdonald and Leonard L. Pace;

Robert Decary, Q.C., and Angeline Thibault, for Attorney General of Quebec;

Jamie W.S. Saunders and Peter M. Rogers, for Attorney General of Nova Scotia.

Solicitors of Record:

McInnes, Cooper & Robertson, Halifax, Nova Scotia, for T. Alexander Hickman, Lawrence A. Poitras and Gregory Thomas Evans;

Ruby & Edwardh, Toronto, Ontario, for Donald Marshall, Jr.;

Cox, Downie & Goodfellow, Halifax, Nova Scotia, for Ian M. MacKeigan, Gordon L.S. Hart, Malachi C. Jones, Angus L. Macdonald and Leonard L. Pace;

Attorney General of Quebec, Sainte-Foy, Quebec, for the Attorney General of Quebec;

Patterson Kitz, Halifax, Nova Scotia, for the Attorney General of Nova Scotia.

These appeals were heard on April 19 and 20, 1989, before Lamer, Wilson, La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin, JJ., of the Supreme Court of Canada.

On October 5, 1989, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

McLachlin, J. (L'Heureux-Dubé and Gonthier, JJ., concurring) - see paragraphs 1 to 56;

Lamer, J. - see paragraphs 57 to 65;

La Forest, J. - see paragraphs 66 to 71;

Cory, J., dissenting in part - see paragraphs 72 to 95;

Wilson, J., dissenting in part - see paragraphs 96 to 103.