Keable and Attorney General of the Province of Quebec v. Attorney General of Canada, (1978) 24 N.R. 1 (SCC)

• Judge: Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 31, 1978
• Jurisdiction: Canada (Federal)
• Citations: (1978), 24 N.R. 1 (SCC);1978 CanLII 23 (SCC);3 WCB 22;90 DLR (3d) 161;[1978] SCJ No 84 (QL);43 CCC (2d) 49;24 NR 1;6 CR (3d) 145;[1979] 1 SCR 218

Keable v. Can. (A.G.) (1978), 24 N.R. 1 (SCC)

MLB headnote and full text

Keable and Attorney General of the Province of Quebec v. Attorney General of Canada and Solicitor General of Canada and the Commissioner of the Royal Canadian Mounted Police and Attorney General of Ontario, Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan and Attorney General of Alberta (intervenants)

Indexed As: Keable and Attorney General of the Province of Quebec v. Attorney General of Canada

Supreme Court of Canada

Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.

October 31, 1978.

Summary:

This case arose out of a motion by the Attorney General and the Solicitor General of Canada for the issuance of a writ of evocation against Jean Keable, a Commissioner appointed by the Province of Quebec under the Public Inquiry Commission Act, R.S.Q. 1964, c. 11. The Commissioner was given the power to investigate certain illegal acts allegedly committed by the R.C.M.P. and other police forces and to investigate the methods of operation and investigation of the R.C.M.P. relating to the incidents. The Commissioner issued a subpoena to the Solicitor General of Canada requiring production of documentary material relating not only to the incidents in question, but also to the operation of the R.C.M.P. in general. The Solicitor General and the Attorney General of Canada moved for the issuance of a writ of evocation against the Commissioner on the grounds that the subject matter of the inquiry as it related to the administration of the R.C.M.P. was beyond the scope of provincial powers and that decisions on the Commissioner respecting scope of the inquiry and the documents required to be produced by the Solicitor General were invalid.

The Quebec Superior Court in a judgment unreported in this series of reports dismissed the application on the ground that the Commissioner was not a court and was therefore not amenable to evocation. On appeal the Quebec Court of Appeal in a judgment unreported in this series of reports allowed the appeal and ordered the issuance of a writ of evocation against the Commissioner. The Court of Appeal also ordered the Commissioner to suspend all proceedings. The Commissioner and the Attorney General of the Province of Quebec appealed.

The Supreme Court of Canada allowed the appeal in part and imposed a suspension of the proceedings of the Commissioner only with regard to those parts of his mandate and actions which the Supreme Court of Canada found ultra vires. See paragraphs 44 to 49 and 96 to 101.

The Supreme Court of Canada held that the mandate and powers of the Commissioner were limited to the provincial jurisdiction over the administration of justice under s. 92(14) of the British North America Act. The Supreme Court of Canada held that the Commissioner could investigate specific criminal activities, including those by the R.C.M.P., but could not extend his inquiry to the administration and operation of the R.C.M.P. in general. See paragraphs 16 to 23, 68 to 75, 106 to 116 and 118 to 128.

The Supreme Court of Canada held that the Solicitor General of Canada or any other Minister of the Crown in right of Canada in his official capacity could not be compelled to appear, testify and produce documents by the Commissioner appointed pursuant to provincial legislation for the purpose of inquiring into matters concerning the administration of justice in the province. The Supreme Court of Canada held that a provincial legislature cannot in the valid exercise of its power subject the Crown in right of Canada to any compulsory regulation. See paragraphs 26 to 34 and 74 to 86.

The Supreme Court of Canada held that under s. 41 of the Federal Court Act, R.S.C. 1970, 2nd Supp., c. 10, a Minister of the federal Crown could by affidavit assert privilege on the basis of national security for government documents subpoenaed by the Commissioner, notwithstanding that the documents related to specific criminal acts and the circumstances surrounding them. See paragraphs 35 to 43 and 87 to 95.

Administrative Law - Topic 6352

Judicial review - Evocation - Nature of - Quebec Code of Civil Procedure, Arts. 846-850 - The Supreme Court of Canada stated that a writ of evocation is the equivalent of certiorari and prohibition combined - See paragraphs 4, 56.

Administrative Law - Topic 6354

Judicial review - Evocation - Where writ available - Quebec Code of Civil Procedure, Arts. 946-850 - The Supreme Court of Canada stated that evocation was available to challenge the validity of the mandate, subpoena and orders of a Commissioner appointed under the Public Inquiry Commission Act, R.S.Q. 1964, c. 11 - See paragraphs 3 to 5 and 55 to 57.

Administrative Law - Topic 6356

Judicial review - Evocation - Scope of review by court - Quebec Code of Civil Procedure, Art. 847(2) - The Supreme Court of Canada held that in determining whether a writ of evocation should issue to a Commissioner appointed under the Public Inquiry Commission Act, R.S.Q. 1964, c. 11, it is sufficient for the court to examine the Commissioner's terms of reference and his impugned decisions in the light of the facts alleged in the motion - The Supreme Court of Canada held that it is not the duty of the court to review all of the proceedings of the Commissioner - See paragraphs 37 to 39 and 89 to 91.

Administrative Law - Topic 6358

Judicial review - Evocation - Scope of remedies available - Quebec Code of Civil Procedure, Arts. 846-850 - The Supreme Court of Canada held that, where the mandate of a Commissioner under the Public Inquiry Commission Act, R.S.Q. 1964, c. 11, is successfully challenged only in part, a restrictive staying order could be issued staying only those parts of the mandate successfully challenged and permitting the balance to be pursued - See paragraphs 44 to 49 and 96 to 101.

Administrative Law - Topic 6409

Judicial review - Prohibition - Time for application - The Supreme Court of Canada stated that prohibition is properly applied for at the outset of impugned proceedings - See paragraphs 4, 56.

Administrative Law - Topic 7904

Public inquiries - Status of - The Supreme Court of Canada held that a Commissioner under the Public Inquiry Commission Act, R.S.Q., 1964, c. 11, was an agent of the executive of the provincial government and did not have the independence of a court - See paragraphs 25 and 77 - The Supreme Court of Canada held that the Commissioner was not the equivalent of a judge of the Superior Court, notwithstanding that s. 7 of the Public Inquiry Commission Act confers upon a commissioner "all the powers of a judge of the Superior Court" - See paragraphs 40 to 42 and 92 to 94.

Administrative Law - Topic 7924

Public inquiries - Creation of - Jurisdiction - A Commissioner appointed by the Province of Quebec under the Public Inquiry Commission Act, R.S.Q. 1964, c. 11, was given the power to investigate certain criminal acts allegedly committed by the R.C.M.P. and other police forces and to investigate the methods of operation and investigation by the R.C.M.P. relating to the incidents - The Commissioner issued a subpoena to the Solicitor General of Canada requiring production of documentary material relating not only to the incidents in question, but also to the operation of the R.C.M.P. in general - The mandate of the Commissioner and the subpoena were challenged - The Supreme Court of Canada held that the mandate and powers of the Commissioner were limited to the provincial jurisdiction over the administration of justice under s. 92(14) of the British North America Act - The Supreme Court of Canada held that the Commissioner could investigate specific criminal activities, including those by the R.C.M.P., but could not extend his inquiry to the administration and operation of the R.C.M.P. in general - See paragraphs 16 to 23, 68 to 75, 106 to 116 and 118 to 128.

Constitutional Law - Topic 544

Powers of legislatures - Limitations on powers of provincial legislature - Compulsory regulation of federal Crown - A Commissioner appointed by the Province of Quebec under the Public Inquiry Commission Act, R.S.Q. 1964, c. 11, to investigate criminal activities by the R.C.M.P. issued a subpoena to the Solicitor General of Canada to produce documents relating to the activities of the R.C.M.P. - The subpoena was challenged - The Supreme Court of Canada held that the Solicitor General or any other Minister of the Crown in right of Canada in his official capacity could not be compelled to appear, testify and produce documents by the Commissioner appointed pursuant to provincial legislation under the provincial power over the administration of justice in the Province - The Supreme Court of Canada held that a provincial legislature cannot in the valid exercise of its power subject the Crown in right of Canada to any compulsory regulation - See paragraphs 26 to 34 and 78 to 86.

Constitutional Law - Topic 7402

Enumeration in s. 92 of the British North America Act - Administration of justice - British North America Act, 1867, s. 92(14) - Extent of subject matter - A Commissioner appointed by the Province of Quebec under the Public Inquiry Commission Act, R.S.Q. 1964, c. 11, was given the power to investigate certain criminal acts allegedly committed by the R.C.M.P. and other police forces and to investigate the methods of operation and investigation by the R.C.M.P. relating to the incidents - The Commissioner issued a subpoena to the Solicitor General of Canada requiring production of documentary material relating not only to the incidents in question, but also to the operation of the R.C.M.P. in general - The mandate of the Commissioner and the subpoena were challenged - The Supreme Court of Canada held that the mandate and powers of the Commissioner were limited to the provincial jurisdiction over the administration of justice under s. 92(14) of the British North America Act - The Supreme Court of Canada held that the Commissioner could investigate specific criminal activities, including those by the R.C.M.P., but could not extend his inquiry to the administration and operation of the R.C.M.P. in general - See paragraphs 16 to 23, 68 to 75, 106 to 116 and 118 to 128.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets - State or public documents - S. 41 of the Federal Court Act, R.S.C. 1970, 2nd Supp., c. 10, provided for the privilege from production as evidence of certain categories of government documents upon the affidavit of a Minister of the federal Crown - The Supreme Court of Canada held that s. 41 was applicable to all courts in Canada, both provincial and federal - See paragraphs 36 and 88 - The Supreme Court of Canada held that the obtaining of the documents elsewhere than from the Minister did not render the affidavit of the Minister under s. 41 ineffective in protecting the documents from production - See paragraphs 43 and 95.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets - State or public documents - The Solicitor General of Canada resisted a subpoena of a Commissioner appointed by the Province of Quebec under the Public Inquiry Commission Act, R.S.Q. 1964, c. 11, and gave an affidavit under s. 41 of the Federal Court claiming privilege for the documents sought by the Commissioner - The Supreme Court of Canada held that, if the affidavit of the Solicitor General could be attacked, it could only be attacked before a court, which the Commissioner was not - See paragraphs 40 to 42 and 92 to 94.

Injunctions - Topic 103

Proceedings not subject to injunctions - Legal proceedings - The Supreme Court of Canada held that an injunction was not available to restrain legal proceedings - See paragraph 4 and 56.

Master and Servant - Topic 4265

Duties of servant - Duty of confidentiality - Interference by employer - The Supreme Court of Canada held that, where an employee owes confidentiality to a third party, his employer cannot compel the employee to breach that duty - See paragraphs 43 and 95.

Practice - Topic 4158

Discovery - Discovery of Crown - The Supreme Court of Canada stated that at common law the Crown could not be compelled to give discovery - See paragraphs 30 and 32 and 82 to 84.

Cases Noticed:

Three Rivers Boatman v. Canada Labour Relations Board, [1969] S.C.R. 607, appld. [paras. 4, 56].

Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756, appld. [paras. 4, 56].

Guay v. Lafleur, [1965] S.C.R. 12, dist. [paras. 5, 57].

St. John v. Fraser, [1935] S.C.R. 441, dist. [paras. 5, 57].

Cotroni v. The Quebec Police Commission (1977), 18 N.R. 541; [1978] 1 S.C.R. 1048, appld. [paras. 5, 57].

Commission of Inquiry into the Police Department of Charlottetown (1977), 12 Nfld. & P.E.I.R. 80; 25 A.P.R. 80; 74 D.L.R.(3d) 422, appld. [paras. 17, 69].

Re Public Inquiries Act (1977), 12 Nfld. & P.E.I.R. 80; 25 A.P.R. 80; 74 D.L.R.(3d) 422, appld. [paras. 17, 69].

Kelly & Sons v. Mathers (1915), 23 D.L.R. 225, refd to. [paras. 17, 69].

Attorney General for the Commonwealth of Australia v. Colonial Sugar, [1914] A.C. 237, appld. [paras. 18, 70].

Di Iorio v. Warden of the Montreal Jail (1976), 8 N.R. 361; [1978] 1 S.C.R. 152, appld. [paras. 19, 71, 105, 117].

Faber v. The Queen (1975), 6 N.R. 1; 8 N.R. 29; [1976] 2 S.C.R. 9, appld. [paras. 19, 71, 105, 117].

R. v. Cotte (1873), L.R. 4 P.C. 599, appld. [paras. 19, 71].

Cock v. Attorney General (1908), 28 N.Z.L.R. 405, dist. [paras. 20, 72].

McGee v. Pooley, [1931] 4 D.L.R. 475, dist. [paras. 21, 73].

Lymburn v. Mayland, [1932] A.C. 380, dist. [paras. 21, 73].

Attorney General of Saskatchewan v. Attorney General of Canada, [1949] A.C. 110, appld. [paras. 23, 75].

Her Majesty in Right of Alberta v. C.T.C. (1977), 2 A.R. 539; 14 N.R. 21; [1978] 1 S.C.R. 61, appld. [paras. 26, 78].

Re Pacific Western Airlines Ltd. (1977), 2 A.R. 539; 14 N.R. 21; [1978] 1 S.C.R. 61, appld. [paras. 26, 78].

Quebec North Shore Paper v. C.P. Ltd. (1976), 9 N.R. 471; [1977] 2 S.C.R. 1054, appld. [paras. 27, 79].

R. v. Richardson, [1948] S.C.R. 57, appld. [paras. 28, 80].

Gauthier v. The King, 56 S.C.R. 176, appld. [paras. 29, 81].

R. v. Snider, [1954] S.C.R. 479, dist. [paras. 30, 82].

La Société Les Affréteurs Réunis and The Shipping Controller, [1921] 3 K.B. 1, appld. [paras. 30, 82].

Crombie v. The King, [1923] 2 D.L.R. 542, appld. [paras. 31, 83].

R. v. Lanctot (1941), 71 Qué. K.B. 325, appld. [paras. 32, 84].

Cahoon v. Le Conseil de la Corporation des Ingénieurs, [1972] R.P. 209, appld. [paras. 39, 91].

Duncan v. Cammell Laird & Co. Ltd., [1942] A.C. 624, refd to. [paras. 40, 92].

Conway v. Rimmer, [1968] A.C. 910, refd to. [paras. 40, 92].

Attorney General of Quebec v. Farrah (1978), 21 N.R. 595, appld. [paras. 41, 93].

Farrah v. Attorney General of Quebec and Transport Tribunal (1978), 21 N.R. 595, appld. [paras. 41, 93].

Re Royal Commission and Ashton (1975), 64 D.L.R.(3d) 477, appld. [paras. 41, 93].

Rogers v. Secretary of State, [1972] 2 All E.R. 1057, appld. [paras. 41, 93].

Batary v. Attorney General for Saskatchewan et al. [1965] S.C.R. 465, consd. [paras. 107, 119].

Statutes Noticed:

British North America Act, 1867, sect. 91(27) [paras. 106, 118]; sect. 92(14) [paras. 22, 74, 106, 118]; sect. 96 [paras. 41, 93].

Department of the Solicitor General Act, R.S.C. 1970, c. S-12, sect. 4 [paras. 23, 75].

Federal Court Act, R.S.C. 1970, 2nd Supp., c. 10, sect. 41 [paras. 38, 87].

Officials Secrets Act, R.S.C. 1970, c. O-3, sect. 4 [paras. 43, 95].

Public Inquiry Commission Act, R.S.Q. 1964, c. 11, sect. 7 [paras. 41, 93].

Quebec Code of Civil Procedure, art. 758 [paras. 4, 56]; art. 846, art. 847, art. 848, art. 459, art. 850 [paras. 2, 54]; art. 846 [paras. 45, 97]; art. 847(2) [paras. 37, 89]; art. 848 [paras. 45, 48, 97, 100].

Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9 [paras. 23, 75].

Counsel:

Gerald Tremblay and Rodolphe Bilodeau, for the appellant the Attorney General of Quebec;

Michel Decary and Jean-Pierre Lussier, for the appellant Mr. Jean Keable;

Joseph Nuss, Q.C., and G.H. Waxman, for the respondent the Attorney General of Canada;

Michel Robert and Louyse Cadieux, for the respondent the Solicitor General of Canada;

Pierre Lamontagne, Q.C., and Victoria A. Percival, for the third party the Commissioner of the Royal Canadian Mounted Police;

J.D. Watt, D.W. Mundell, Q.C., and L.E. Weinrib, for the intervenant Attorney General of Ontario;

H. Hazen Strange, Q.C., and Patricia L. Cumming, for the intervenant Attorney General of New Brunswick;

M. Samphir and B.W. Drever, for the intervenant Attorney General of Manitoba;

Louis Lindholm, for the intervenant Attorney General of British Columbia;

S. Kujawa, Q.C. and K.W. MacKay, for the intervenant Attorney General of Saskatchewan;

Ross Paisley, Q.C., and W. Henkel, Q.C., for the intervenant Attorney General of Alberta.

This case was heard on May 23, 24, 25 and 26, 1978, at Ottawa, Ontario, before MARTLAND, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ, ESTEY and PRATTE, JJ., of the Supreme Court of Canada.

On October 31, 1978, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

PIGEON, J. - see paragraphs 1 to 52 (English language version); 52 to 104 (French language version);

ESTEY, J. - see paragraphs 105 to 116 (English language version); 117 to 128 (French language version);

PRATTE, J. - see paragraphs 129 to 131 (English language version); 132 to 134 (French language version).

MARTLAND, RITCHIE, DICKSON and BEETZ, JJ., concurred with PIGEON, J.

SPENCE, J., concurred with ESTEY, J.