[1993] 2 F.C. 351
T-2417-91
IN THE MATTER OF Parts VI and VII of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, as amended;
IN THE MATTER OF a complaint, dated August 8, 1990, made to the Royal Canadian Mounted Police Public Complaints Commission by John Ross Colvin in respect of alleged conduct of Norman Inkster, the Commissioner of the Royal Canadian Mounted Police;
IN THE MATTER OF a complaint, dated August 13, 1990, made to the Royal Canadian Mounted Police Public Complaints Commission by John Ross Colvin in respect of alleged conduct of Henry Jensen, a former Deputy Commissioner of the Royal Canadian Mounted Police;
AND IN THE MATTER OF an application by way of special case stated for opinion of the Federal Court, Trial Division pursuant to paragraph 17(3)(b) of the Federal Court Act, R.S.C., 1985, c. F-7.
Indexed as: Canada (Commissioner of the Royal Canadian Mounted Police) (Re) (T.D.)
Trial Division, MacKay J.—Ottawa, April 13, 1992 and February 23, 1993.
RCMP — Complaint concerning conduct of RCMP Commissioner within jurisdiction of RCMP Public Complaints Commission — Not excluding commissioner’s conduct consistent with case law on evolving principles of accountability under rule of law — Not within jurisdiction of Commission to consider complaint concerning conduct of Deputy Commissioner who retired before initiation of complaint — Within jurisdiction of Commission to consider complaint concerning conduct of person who retires or ceases to be appointed under Act after initiation of complaint but before resolution.
In August 1990, a member of the public filed complaints with the RCMP Public Complaints Commission pursuant to Part VII of the Royal Canadian Mounted Police Act concerning the alleged conduct of Norman Inkster, the Commissioner of the RCMP, and of Henry Jensen, former Deputy Commissioner of the RCMP (who had retired in December 1989), with respect to the investigation and laying of charges in connection with the premature disclosure of highlights of the Federal Budget in April, 1989. The Commissioner and Deputy Commissioner were alleged to have permitted subordinate officers of the RCMP to lay charges against Douglas Small and two other men when they knew or ought to have known that there was no basis for the charges. The charges were in fact later stayed by the Trial Judge on the ground that continuing the prosecution would be an abuse of process. The complainant alleged that the three men were subjected unnecessarily, without reasonable and probable cause, to embarrassment, inconvenience and great expense.
The Commissioner argued that Part VII of the Act did not grant the Commission jurisdiction to deal with complaints concerning the Commissioner’s conduct. The former Deputy Commissioner argued that Part VII did not grant the Commission jurisdiction to deal with the complaint against him since, at the time of the initiation of the complaints, he had ceased to be a “member” of the RCMP.
This was a special case stated for the opinion of the Federal Court, Trial Division pursuant to paragraph 17(3)(b) of the Federal Court Act. The Court was asked (1) whether the Commission, in connection with Parts VI and VII of the RCMP Act, had jurisdiction to entertain the Inkster complaint, having regard to the fact that he was Commissioner of the RCMP; (2) whether the Commission, in connection with Parts VI and VII of the RCMP Act and having regard to the Jensen complaint, had jurisdiction to entertain complaints concerning alleged conduct of a member of the RCMP or other person appointed or employed under the authority of the Act who (i) had retired or ceased to be appointed or employed under the authority of the Act prior to the initiation of the complaint; or (ii) had retired or ceased to be appointed or employed under the authority of the Act after the initiation of the complaint but prior to its resolution.
Held, questions (1) and (2)(ii) should be answered in the affirmative and question (2)(i), in the negative.
The preliminary query as to whether notice ought to be given to provincial attorneys general in accordance with section 57 of the Federal Court Act was answered in the negative. The Court was asked to construe the RCMP Act in a manner consistent with the Charter, and there was no direct request for the Court to rule on the validity, applicability or operability, in a constitutional sense, of the Act.
The Inkster complaint
The question was whether the Commissioner was included in the words “any member or other person appointed or employed under the authority of this Act” within subsection 45.43(1), in view of the special role of the Commissioner both in regard to the process for dealing with complaints (reception, investigation and final decision taken with respect to any complaint) and in regard to his other special duties under the Act (management, disciplinary process, discharge and demotion). A complaint against a member includes a complaint about the Commissioner within the meaning of “any member” unless the context and the statute as a whole clearly require otherwise. The context and the statute do not so require. Neither the Commissioner’s other duties under the Act nor his duties in relation to the public complaints process require, or lead to the implication that Parliament intended, his exclusion from the words “any member” used in relation to public complaints.
The Commissioner has the same obligations to meet the standards established for the conduct of “every member” under section 37 of the Act, including the responsibility “to respect the rights of all persons … to maintain the integrity of the law, law enforcement and the administration of justice … to ensure that any improper or unlawful conduct of any member is not concealed or permitted to continue; to be incorruptible, never accepting or seeking special privilege in the performance of … duties”. Since the Commission was created to consider public complaints against the conduct of members of the Force for having, in effect, violated those standards, it would be for Parliament to exclude, expressly or in a manner not open to doubt, the conduct of the Commissioner or any other member of the Force from scrutiny by the Commission. To exclude the Commissioner would seriously undermine public confidence in the process of the Commission and in the RCMP itself. Furthermore, inclusion of the Commissioner’s conduct within the authority of the Commission to investigate is consistent with the evolving principles of accountability under the rule of law demonstrated by recent judicial decisions, particularly of the Supreme Court of Canada.
The Jensen complaint
The complaint against Jensen raised two questions of jurisdiction: cases of retirement before initiation of the complaint and cases of retirement after initiation of the complaint but before its resolution. The former Deputy Commissioner had retired from the Force before the initiation of the complaint.
The questions here raised for determination the issue of when the status of membership in the Force, or employment under the Act, is essential for purposes of the public complaint process.
In Maurice v. Priel, the Supreme Court of Canada established the principle that jurisdiction of a special statutory tribunal in relation to discipline matters, concerning alleged misconduct of a member of a group subject to the tribunal’s jurisdiction, requires membership in the group not only when the alleged misconduct is said to have occurred but also at the time the complaint is initiated.
Part VII requires that the conduct be related to the performance of duties or functions under the Act, which implicitly requires that the person whose conduct is the subject of complaint be acting under the authority of the Act, and that at the time the complaint is initiated the person whose conduct is the subject of complaint be a member or a person appointed or employed under the Act. A complaint about the conduct of a person who has retired or ceased to be a member of the RCMP prior to the initiation of the complaint is therefore excluded from the authority of the Commission to investigate, and from the public complaint process generally.
Finally, the jurisdiction of the Commission to deal with a complaint does not terminate by subsequent retirement or cessation of employment of the person whose conduct has given rise to the complaint. This finding is consistent with the result in Samuels v. Council of College of Physicians and Surgeons of Saskatchewan (1966), 57 W.W.R. 385 (Sask. Q.B.) where it was found that the College did not lose jurisdiction to hear allegations of professional misconduct against a doctor who, after preliminary inquiries and initial hearings on the allegations, did not pay his annual fees and under the statute was required to be struck off the register of the College.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 11(f), 15.
Commissioner’s Standing Orders (Public Complaints), SOR/88-522.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 17(3)(b), 57 (as enacted by S.C. 1990, c. 8, s. 19).
Inquiries Act, R.S.C., 1985, c. I-11.
Judges Act, R.S.C. 1970, c. J-1.
National Defence Act, R.S.C. 1970, c. N-4, s. 55(1),(2).
Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, Parts VI, VII (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16), ss. 2 (as am. idem, s. 1), 5 (as am. idem, s. 2), 12.1 (as enacted idem, s. 7), 21 (as am. idem, s. 12), 24.1 (as enacted idem, s. 15), 37 (as am. idem), 42(6) (as am. by S.C. 1990, c. 8, s. 66), 45.14 to 45.46 (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16), 45.16, 45.24, 45.26, 45.28, 45.35, 45.36, 45.37, 45.38, 45.39, 45.40, 45.41, 45.43, 45.45, 45.46.
Royal Canadian Mounted Police Regulations, 1988, SOR/88-36, s. 19.
Rules of the Supreme Court of Canada, SOR/83-74, R. 32 (as am. by SOR/91-347, s. 17).
The Legal Profession Act, R.S.S. 1978, c. L-10.
CASES JUDICIALLY CONSIDERED
APPLIED:
Royal Canadian Mounted Police Act (Can.) (Re), [1991] 1 F.C. 529; (1990), 34 F.T.R. 1; 123 N.R. 120 (C.A.); Maurice v. Priel, [1989] 1 S.C.R. 1023; (1989), 58 D.L.R. (4th) 736; [1989] 3 W.W.R. 673; 77 Sask. R. 22; 36 Admin. L.R. 169; 96 N.R. 178; affg (1987), 46 D.L.R. (4th) 416; [1988] 1 W.W.R. 491; 60 Sask. R. 241 (C.A.); Samuels v. Council of College of Physicians and Surgeons of Saskatchewan (1966), 57 W.W.R. 385 (Sask. Q.B.).
CONSIDERED:
Roncarelli v. Duplessis, [1959] S.C.R. 121; (1959), 16 D.L.R. (2d) 689; Smallwood v. Sparling, [1982] 2 S.C.R. 686; (1982), 141 D.L.R. (3d) 395; 68 C.P.R. (2d) 145; 44 N.R. 571; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Carey v. Ontario, [1986] 2 S.C.R. 637; (1986), 58 O.R. (2d) 352; 35 D.L.R. (4th) 161; 22 Admin. L.R. 236; 30 C.C.C. (3d) 498; 14 C.T.C. (2d) 10; 72 N.R. 81; 20 O.A.C. 81; Nelles v. Ontario, [1989] 2 S.C.R. 170; (1989), 60 D.L.R. (4th) 609; 41 Admin. L.R. 1; 37 C.P.C. (2d) 1; 71 C.R. (3d) 358; 42 C.R.R. 1; 98 N.R. 321; 35 O.A.C. 161; Rutherford v. The Queen (1983), 4 C.M.A.R. 262; 26 C.R.R. 255 (C.M.A.C.).
REFERRED TO:
Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1989] 2 S.C.R. 1110; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 36 C.R.R. 193; 91 N.R. 255.
SPECIAL STATED CASE to determine (1) whether the RCMP Public Complaints Commission had jurisdiction to entertain a complaint about the conduct of the Commissioner of the RCMP; and (2) whether the Commission had jurisdiction to entertain a complaint about the conduct of a person who (i) had retired or ceased to be appointed or employed under the RCMP Act before the initiation of the complaint or who (ii) had retired or ceased to be appointed or employed under the RCMP Act after the initiation of the complaint but before its resolution. Questions (1) and (2)(ii) should be answered in the affirmative; question (2)(i) should be answered in the negative.
COUNSEL:
E. A. Cronk and James C. MacPherson for Royal Canadian Mounted Police Public Complaints Commission.
Brian A. Crane for Attorney General of Canada.
Leslie A. Vandor for Henry Jensen.
SOLICITORS:
Fasken, Campbell, Godfrey, Toronto, and Osgoode Hall Law School, North York, Ontario, for Royal Canadian Mounted Police Public Complaints Commission.
Deputy Attorney General of Canada for Attorney General of Canada.
McMaster Meighen, Ottawa, for Henry Jensen.
The following are the reasons for judgment rendered in English by
MacKay J.:
Introduction
This is a special case stated for the opinion of the Federal Court, Trial Division, pursuant to paragraph 17(3)(b) of the Federal Court Act, R.S.C., 1985, c. F-7 as amended. The case is stated by agreement between the Royal Canadian Mounted Police Public Complaints Commission (the “Commission”) and the Attorney General of Canada. It raises certain questions set out below concerning the jurisdiction of the Commission to entertain complaints concerning alleged conduct of the Commissioner of the Royal Canadian Mounted Police (the “RCMP”) and concerning the alleged conduct of a member of the RCMP or other person appointed under the authority of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 as amended,*[1] who has ceased to be a member of the Force or employed under the Act.
Agreed Statement of Facts
The following is the agreed statement of facts submitted to the Court in this case:
WHEREAS questions have arisen regarding the jurisdiction of the Royal Canadian Mounted Police Public Complaints Commission (the “Commission”), established pursuant to the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, as amended by S.C. 1986, c. 11 (the “Act”), to entertain certain complaints received by it;
AND WHEREAS the Commission and the Attorney General of Canada have agreed, pursuant to paragraph 17(3)(b) of the Federal Court Act, R.S.C. 1985, c. F-7 (the “Federal Court Act”), to state the questions regarding the jurisdiction of the Commission for opinion of the Federal Court, Trial Division;
A. BACKGROUND TO THE COMPLAINTS
1. Part VI of the Act establishes the Commission. Part VI was proclaimed into force on December 18, 1986.
2. Part VII of the Act, proclaimed into force on September 30, 1988, authorizes the Commission to entertain complaints made 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 other person appointed or employed under the authority of the Act.
3. One of the methods under Part VII of the Act by which the Commission may become involved with such complaints is by a member of the public making a complaint directly to the Commission pursuant to subsection 45.35(1) of the Act.
4. On August 8, 1990, John Ross Colvin of Ottawa, as a member of the public, filed a complaint with the Commission pursuant to subsection 45.35(1) of Part VII of the Act in respect of alleged conduct of Norman Inkster, the Commissioner of the RCMP. The text of this complaint is attached as Schedule “A” (the “Inkster Complaint”).
5. On August 13, 1990, Mr. Colvin filed a second complaint with the Commission pursuant to subsection 45.35(1) of Part VII of the Act in respect of alleged conduct of Henry Jensen, a former Deputy Commissioner of the RCMP. The text of this complaint is attached as Schedule “B” (the “Jensen Complaint”).
6. The Inkster and Jensen Complaints arose out of the investigation and laying of charges in connection with the premature disclosure of highlights of the Federal Budget in April, 1989.
7. Following the disclosure of highlights of the Budget, the RCMP began an intensive criminal investigation. Charges were laid by the Attorney General of Ontario on May 29, 1989 against Douglas Small, John Appleby and Normand Belisle. Charges were also laid on May 29, 1989 against Brian McCuaig and Johan Mares.
8. In a decision dated July 16, 1990 in R. v. Appleby, Belisle and Small (1990), 78 C.R. (3d) 282 (Ont. Prov. Ct.), His Honour Judge Fontana granted a defence motion to stay all the charges against these accused on the ground that continuing the prosecution would be an abuse of process.
9. In a decision dated October 18, 1989 in R. v. McCuaig, His Honour Judge Nadelle convicted Brian McCuaig of possession of property having a value of less than $1,000.00 obtained by the commission of an indictable offence. Judge Nadelle subsequently imposed a fine of $500.00. The charges against Johan Mares were withdrawn.
10. Mr. Colvin, in the Inkster Complaint, alleged that:
In May, 1989, Mr. Inkster permitted subordinate officers of the Force to charge Small although he knew (or ought to have known) that no crime had been committed. He knew this because Staff Sergeant Richard Jordan and later Inspector Jean-Pierre Witty, both of the RCMP, told him that there was no basis for the charges. Judge Fontana’s decision in July, 1990, supported their action and the judge called the laying of charges vexatious and an abuse of process.
As a result of these charges, all three men were subjected unnecessarily, without reasonable and probable cause, to embarrassment, inconvenience and great expense. Because of Mr. Inkster’s improper conduct, prudent Canadians may (and will) say to themselves: “There but for the grace of God, go I”. No law-abiding citizen of Canada ought to be subject to this form of harassment.
11. In the Jensen Complaint, Mr. Colvin alleged that:
In May of 1989, Henry Jensen, Deputy Commissioner in charge of Operations, RCMP, Ottawa permitted subordinate officers of the force to charge Mr. Douglas Small, and two other men with a criminal offence, although he knew or ought to have known that no crime had been committed.
Mr. Jensen knew or ought to have known that no crime had been committed because Staff Sergeant Rick Jordan and later Inspector Jean-Pierre Witty, both of the RCMP, told him that there was no basis for the charges. Eventually, His Honour Judge James A. Fontana described the laying of the charges as vexatious and an abuse of due process.
Given these circumstances, Deputy Commissioner Henry Jensen’s conduct was improper.
12. Part VII of the Act provides for the investigation by the RCMP of complaints received by the Commission from members of the public concerning the conduct, in the performance of any duty or function under the Act, of any member of the RCMP or other person appointed or employed under the authority of the Act. However, subsection 45.43(1) of the Act authorizes the Chairman of the Commission to investigate a complaint where the Chairman considers it advisable in the public interest to do so.
13. The Chairman of the Commission formed the opinion that the public might consider that an internal investigation by the RCMP of its own two most senior members would not be impartial, based on the nature of the Complaints and the highly public character of the events giving rise to the Complaints. As a result, the Chairman of the Commission informed the Commissioner of the RCMP, pursuant to subsection 45.43(1) of the Act, that the Chairman would investigate the Inkster and Jensen Complaints.
14. On March 25, 1991 the Commission Chairman released a report concerning the status of the Commission’s investigation of the Inkster and Jensen Complaints. A copy of that report is attached as Schedule “C” (the “Chairman’s Status Report”).
B. THE INKSTER COMPLAINT
15. The Chairman of the Commission by letter dated October 19, 1990 requested Mr. Inkster, the Commissioner of the RCMP, to provide the Chairman with information concerning the Commissioner’s involvement in the budget disclosure investigations and the laying of the charges.
16. By letter dated December 10, 1990 the Commissioner of the RCMP replied to the Chairman of the Commission. He indicated that he had sought legal advice of the Department of Justice on the application of Part VII of the Act to complaints concerning his conduct as Commissioner. His letter stated that it was the view of the Deputy Minister of Justice that Part VII did not grant the Commission jurisdiction to deal with complaints concerning the Commissioner’s conduct.
C. THE JENSEN COMPLAINT
17. As noted, the Jensen Complaint was made to the Commission by Mr. Colvin on August 13, 1990. It concerns conduct of Mr. Jensen, in his then capacity as Deputy Commissioner of the RCMP, which conduct allegedly took place shortly after the Budget disclosure in April, 1989. In December 1989, some eight months before the initiation of the Jensen Complaint by Mr. Colvin, Mr. Jensen retired both as a member and as a Deputy Commissioner of the RCMP.
18. By letter dated February 10, 1991 Deputy Commissioner R.G. Moffatt of the RCMP wrote the Chairman of the Commission informing him that the advice of the Department of Justice had been sought with respect to the application of Part VII of the Act to the conduct of former Deputy Commissioner Jensen. Mr. Moffatt stated that it was the opinion of the Department of Justice that Part VII did not grant the Commission jurisdiction to deal with the Jensen Complaint since, at the time of initiation of the Complaint, the Deputy Commissioner had ceased to be a “member” of the RCMP.
D. GENERAL
19. The RCMP has thus taken the position, through the correspondence of Commissioner Inkster and Deputy Commissioner Moffatt with the Chairman of the Commission, that the Commission lacks jurisdiction under Part VII of the Act to entertain the Inkster and Jensen Complaints. This has prevented the Commission Chairman from obtaining any further information from the RCMP relevant to these Complaints.
20. The Commission Chairman, in the Chairman’s Status Report dated March 25, 1991, stated (at page 8) “ … I am not in the position to make findings and recommendations on the basis of the information I now have”.
21. The important legal issues raised in this case concerning the jurisdiction of the Commission are relevant to complaints other than those made by Mr. Colvin. In particular, a number of complaints have been made under Part VII of the Act with respect to RCMP members who retired from, or otherwise ceased to be a member of, the RCMP after the date of the incidents giving rise to the complaints concerning their conduct.
E. FURTHER RECITALS
22. AND WHEREAS it is the Commission Chairman’s view that the Commission will be unable to complete its investigation into the Inkster and Jensen Complaints until the issue of the Commission’s jurisdiction to entertain such Complaints has been determined;
23. AND WHEREAS it appears to the Commission and the Attorney General of Canada that the question of the Commission’s jurisdiction to entertain the Inkster and Jensen Complaints is a question of importance and that it is in the public interest for the jurisdictional issues raised by the Complaints, as set out in the Stated Case, to be resolved;
24. AND WHEREAS the questions set out in the Stated Case are complex ones which raise substantive issues of law;
25. AND WHEREAS, in light of the position taken by the RCMP, as set out in paragraphs 15 and 17 hereof [it is presumed the reference here intended was to paragraphs 16 and 18], a decision by the Commission on the questions set out in the Stated Case likely would be subject to challenge;
26. THE COMMISSION AND THE ATTORNEY GENERAL OF CANADA hereby agree that the questions set out in the Stated Case should be stated for opinion of the Federal Court, Trial Division, pursuant to paragraph 17(3)(b) of the Federal Court Act.
Stated case
The case stated for the opinion of this Court is the following.
1. Does the Commission, in connection with Parts VI and 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 the Inkster Complaint, as set out in the Agreed Statement of Facts, having regard to the fact that this Complaint concerns alleged conduct of the Commissioner of the Royal Canadian Mounted Police (the “RCMP”)?
2. Does the Commission, in connection with Parts VI and VII of the Act and having regard to the Jensen Complaint, as set out in the Agreed Statement of Facts, have jurisdiction to entertain complaints concerning alleged conduct of a member of the RCMP or other person appointed or employed under the authority of the Act who:
(i) retired from, or otherwise ceased to be a member of the RCMP, or ceased to be appointed or employed under the authority of the Act, prior to initiation of the complaint; or
(ii) retired from, or otherwise ceased to be a member of, the RCMP, or ceased to be appointed or employed under the authority of the Act, after initiation of the complaint but prior to its resolution?
Intervention by Mr. Jensen: Constitutional issues and section 57 of the Federal Court Act
Mr. Henry Jensen, through counsel, participated in argument of this special case, in accord with arrangements made by order of my colleague Mr. Justice Cullen for the hearing of the case. Mr. Jensen was Deputy Commissioner at the time of events giving rise to the complaints underlying the stated case. As noted in paragraph 17 of the agreed statement of facts he had retired from that office and from the RCMP, in the normal course, before the complaint concerning his part in those events was initiated. The circumstances in question 2(i) of the stated case are similar to those of Mr. Jensen. His counsel made submissions, supportive of those of the Attorney General, that question 2(i) should be answered in the negative.
In relation to Mr. Jensen’s intervention counsel raised a preliminary query about the application of section 57 of the Federal Court Act, as enacted by S.C. 1990, c. 8, section 19 (in force February 1, 1992 (SI/92-6)). That query was whether in the circumstances of this case notice ought to be given to provincial attorneys general in accord with that section which provides in part:
57. (1) Where the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2).
(2) Except where otherwise ordered by the Court or the federal board, commission or other tribunal, the notice referred to in subsection (1) shall be served at least ten days before the day on which the constitutional question described in that subsection is to be argued.
(3) The Attorney General of Canada and the attorney general of each province are entitled to notice of any appeal or application for judicial review made in respect of the constitutional question described in subsection (1).
That question arises in light of the argument raised on behalf of Mr. Jensen that interpretation of the RCMP Act should be consistent with the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] and that an interpretation which would result in a positive answer to question 2(i) would be discriminatory and contrary to section 15 of the Charter. In this case notice had not been given to provincial attorneys general that a constitutional question was raised for consideration of the Court.
Counsel for all parties were helpful in dealing with this matter, as they were in relation to the issues raised in the stated case. Counsel for the Attorney General of Canada referred to practice of the Supreme Court of Canada under that Court’s Rule 32 [Rules of the Supreme Court of Canada, SOR/83-74 (as am. by SOR/91-347, s. 17)] which provides for notice of a constitutional question, in the following terms.
32. (1) A constitutional question may be stated by the Chief Justice or a judge on a motion brought by one of the parties within 60 days after the filing of the notice of appeal where the appeal raises a question of
(a) the constitutional validity or the constitutional applicability of a statute of the Parliament of Canada or of a legislature of a province or of regulations made thereunder; or
(b) the inoperability of a statute of the Parliament of Canada or of a legislature of a province or of regulations made thereunder.
(2) The parties to a reference under section 53 of the Act shall follow the procedure set out in subsection (1).
…
(4) On a motion, the Chief Justice or a judge may state the question or questions and direct service of the question or questions upon the Attorney General of Canada and the attorneys general of all the provinces within the time fixed by the Chief Justice or judge, together with notice that any of them who intends to intervene … shall … file a notice of intervention ….
As I understand the Supreme Court’s practice, a constitutional question under the Charter is treated the same as any other constitutional question, and a constitutional question is stated under Rule 32 only when the constitutional validity, or the constitutional applicability of a statute or of regulations is raised or the inoperability of a statute or regulation is urged. A question is not stated under the Rule where there is not an attack on the validity, applicability or inoperability of legislation and where all the Court is being asked is to construe a law in light of a section of the Charter (Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1989] 2 S.C.R. 1110).
Counsel for the Commission and for the Attorney General of Canada here joined in a submission, after hearing argument on behalf of Mr. Jensen, that in this case this Court was urged to construe the RCMP Act in a manner said to be consistent with the Charter and that the Court was not asked to rule on the constitutional validity, applicability or operability of a statute or regulation within the meaning of those words as used in section 57.
At the end of the hearing I reserved decision in relation to the query raised in order to give the matter brief consideration, with arrangements that counsel would be advised through the Registry if, in my opinion, I considered section 57 applicable in this case, in which event counsel for Mr. Jensen would give notice to provincial (and territorial) attorneys general and an opportunity would be provided for any of them interested in intervening to have the record and a transcript of proceedings in this matter and to be heard before the Court reached judgment in the stated case. After brief consideration, the Registry was directed to advise counsel that I concluded section 57 was not applicable in this case.
That conclusion is based on reasons underlying the submission made jointly for the original parties to this case. Here the Court is asked to construe the RCMP Act in a manner consistent with the Charter, a Charter argument which was not supported by all counsel, and there was no direct request for the Court to rule on the validity, applicability or operability, in a constitutional sense, of the Act. In those circumstances, in my view, section 57 does not apply and notice is not required to be provided to all attorneys general. I note that this judgment includes no ruling of the sort described in section 57 in relation to the statute of Parliament here in issue, the RCMP Act.
The legislative regime and the purposes of Part VII of the RCMP Act
In the course of argument reference was made by counsel to numerous sections of the Royal Canadian Mounted Police Act including in particular Part VII of the Act which provides the process for dealing with public complaints.
The interpretation of one provision, section 45.43*[2] included in Part VII, in my view, is central to answers to the questions posed in the stated case. Under this provision the Commission Chairman proceeded to deal with the two complaints concerning the conduct of the Commissioner and of former Deputy Commissioner Jensen. That section provides as follows:
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 recommendations with respect to the complaint as the Commission Chairman sees fit unless the Commission Chairman has instituted, or intends to institute, a hearing to inquire into the complaint under that paragraph or subsection.
That section is not the only provision for dealing with public complaints. Indeed, it does not provide for the most usual process for complaints from or on behalf of a member of the public. The more regular process is for initiation of a complaint by a member of the public to the Commission, to the RCMP itself or to provincial authorities under subsection 45.35(1). The two complaints which led to this stated case were initiated in accord with that section. An alternative for initiation of a complaint is for it to be made by the Chairman of the Public Complaints Commission under subsection 45.37(1). In both cases, if the complaint is not dealt with by the Chairman under section 45.43, the matter is first considered within the RCMP itself in accord with processes provided in Part VII of the Act. Both of the provisions relating to the initiation of complaints (i.e., subsections 45.35(1) and 45.37(1)) use the same words as are found in section 45.43, “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”.
An overview of the statutory arrangements for dealing with public complaints in Part VII, is set out by Mr. Justice MacGuigan J.A. in Royal Canadian Mounted Police Act (Can.) (Re), [1991] 1 F.C. 529 (C.A.) at pages 556-558 in the following terms.
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 concerning 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 practicable. 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 complained against, unless, in his opinion, to do so might adversely affect an investigation.
A complainant who is dissatisfied with the disposition of a complaint by the RCMP may, pursuant 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 “considers it advisable in the public interest.”
Where the Chairman decides to institute a hearing, 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-examine 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 recommendations 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 statutory scheme in place for the investigation of public complaints. There was only an internal review procedure, established by an administrative act of the Commissioner.…
The complaints which led to this stated case were addressed to the Commission. Its Chairman concluded, for the reasons set out in paragraph 13 of the agreed statement of facts, that he would investigate the two complaints, pursuant to section 45.43 of the Act, and he so advised the Commissioner of the RCMP. When action is taken under that section, in the public interest as determined by the Chairman, the RCMP is not required to investigate, report or otherwise deal with the complaint until the Chairman has reported upon completion of his investigation, or of a hearing. Investigation by the Chairman, or hearings to inquire into the matter, are conducted independently of any consideration of the matter by the RCMP itself.
The purposes of Part VII of the Act are described by Mr. Justice MacGuigan J.A. in Royal Canadian Mounted Police Act (Can.) (Re), supra, at pages 555-556, when discussing the amending Act by which the public complaints procedure was established, in the following passage:
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 Complaints, Internal Discipline and Grievance Procedure within the Royal Canadian Mounted Police, Information Canada, Ottawa, 1976 (The Marin Commission Report). That Report recommended the creation of a public complaint system operationally and functionally distinct from the disciplinary 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 complaints. 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 respondent, 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 contemporary 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 substantially 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.
Jurisdiction of the Commission in regard to a complaint concerning conduct of the Commissioner, RCMP: question 1, the Inkster complaint
The Commission submits that its Chairman and the Commission have jurisdiction under section 45.43 to investigate, or conduct a hearing, in regard to a complaint concerning conduct of the Commissioner as a member of the RCMP in the performance of his duty or function under the Act, by the express words of that section. That interpretation is said to be supported by the general purposes of Part VII, by the general context of the Act as it relates to the Commissioner and to the Commission and by the general thrust of decisions of the Supreme Court in recent years which have reflected what counsel describes as evolving principles of accountability, for those in public office, which have narrowed immunities from application of the principle.
The Attorney General of Canada, on the other hand, submits that Parliament could not have intended to comprehend or include the Commissioner in the words “any member or other person appointed or employed under the authority of this Act” within subsection 45.43(1). That conclusion, it is said, is based upon the unique role of the Commissioner in relation to public complaints, a role only the Commissioner can perform, and upon his special role within the RCMP, a para-military operation.
The Commissioner is acknowledged to be accountable, but not in relation to any complaint made to the Commission. Rather, accountability is ensured through other forums, for example, the appointment as Commissioner is made by the Governor in Council pursuant to section 5 [as am. idem, s. 2], at pleasure, and he is subject to removal; and in relation to his management of the RCMP the Commissioner is accountable either before the Standing Committee of Justice and Legal Affairs of the House of Commons or in the course of presentation of estimates of the Solicitor General. Under section 24.1 [as enacted idem, s. 15] of the Act the Minister may appoint a board of inquiry to investigate and report on any matter relating to the organization, training, conduct, performance of duties, discipline, administration or government of the Force. Moreover, the Inquiries Act [R.S.C., 1985, c. I-11] provides a means whereby the Governor in Council may appoint an inquiry, if there appears to be any necessity.
These various means by which the Commissioner may be accountable for performance of his duties are not unimportant, but they are common for many senior public servants, and they do not assist in responding to the question posed in the stated case, whether a public complaint against the Commissioner is within the jurisdiction of the Commission under Part VII of the Act. Nor does the fact that his position may be analogous to that of Deputy Ministers or the Chief of the Defence Staff, who may not be answerable for alleged misconduct in any process like that established for dealing with public complaints under Part VII of the Act.
As earlier noted all of the provisions of Part VII that relate to initiation of a complaint from the public are in similar terms. In all cases there must be a complaint, it must concern the conduct in performance of a duty or function under the Act and the conduct must be that of a member or other person appointed or employed under the Act.
There is no difference between the parties that the complaints here concern conduct in the performance of his duty of the Commissioner and that he is a member of the RCMP. The only difference is whether he is a “member” of the Force, as that term is used in Part VII where reference is made to the initiation of complaints, particularly subsection 45.43(1) under which the Chairman here determined to act.
Section 2 [as am. idem, s. 1] of the Act defines “member” in the following terms:
2. …
“member” means any person
(a) who has been appointed as an officer or other member of the Force under section 5 or paragraph 6(3)(a) or 7(1)(a), and
(b) who has not been dismissed or discharged from the Force as provided in this Act, the regulations or the Commissioner’s standing orders;
The definition of “officer” similarly refers to an appointee under section 5. Subsection 5(1) provides for the appointment by the Governor in Council of an officer as the Commissioner of the RCMP, responsible under direction of the Minister for control and management of the Force. Thus the statutory meaning of the word “member” as used in Part VII in those provisions relating to the initiation of complaints, including subsection 45.43(1), includes the Commissioner, unless the context of the Act, and its purposes dictate another meaning.
Counsel for the Attorney General of Canada concedes that the Commissioner is a member of the Force, but argues that Parliament could not have intended to include him, to comprehend him, within the word “member” as used in those sections providing for initiation of complaints under Part VII, and complaints against conduct of the Commissioner would not be within the jurisdiction of the Public Complaints Commission.
The basis for the Attorney General’s argument is said to be the special role of the Commissioner both in regard to the process for dealing with complaints, and in regard to his other special duties under the Act. There is no doubt that the Commissioner does play a significant role in the process of dealing with public complaints. Within the Force he is responsible for the administration and management of that process, and, subject to the authority of the Minister, for the disposition of those complaints, including the responsibility to act, or not to act, on recommendations made by the Public Complaints Commission.
The Commissioner’s responsibilities in relation to the process are numerous. He is to be notified of every complaint from a member of the public (subsections 45.35(3), 45.37(2) and paragraph 45.41(2)(a)) and he notifies in writing every member or other person whose conduct is the matter of the complaint, unless in his opinion this may adversely affect or hinder an investigation (subsections 45.35(4), 45.37(3)). He considers whether the complaint can be disposed of informally with consent of the complainant and the person whose conduct is the subject-matter of the complaint (subsection 45.36(1)). Where the complaint is not settled informally it is to be investigated by the RCMP in accord with rules made by the Commissioner (subsection 45.36(4) and section 45.38), but he may direct that there be no investigation or that an investigation be terminated for certain defined reasons as he judges them, giving notice to the complainant and the person whose conduct is the basis of the complaint (subsections 45.36(5) and (6)). He has a responsibility to report periodically to the parties on the course of an investigation (section 45.39) and on completion of an investigation within the Force (section 45.4). Finally, the Commissioner plays a unique role even in relation to complaints investigated by or reported upon by the Public Complaints Commission or the Chairman. Thus, he provides information on any prior investigation or report, about the matter complained of, within the Force (paragraph 45.41(2)(b)); he reviews and considers the report and recommendations of the Chairman or the Commission, and reports to the Chairman and the Minister upon action that has been or will be taken, and if he does not act he is to report reasons for so deciding (section 45.46).
The last responsibility, to review and report upon the reports and recommendations of the Commission or the Chairman, and the authority to make rules under the Act including rules relating to the processing of public complaints within the RCMP, are specifically excluded from the general authority of the Commissioner to delegate any of his duties or functions under subsection 5(2). Thus, it is urged by counsel for the Attorney General that the Commissioner’s role in reviewing and reporting in relation to the Chairman’s reports is one to be discharged by him personally.
In light of that particular and ultimate responsibility to act or not to act in response to investigations of public complaints it is urged that Parliament did not intend to include the Commissioner in the words “any member or other person appointed or employed under … this Act”, as used in those sections concerning the initiation of public complaints, whether in relation to a complaint from a member of the public (subsection 45.35(1)), or a complaint initiated by the Commission Chairman (subsection 45.37(1)), or a complaint that the Chairman decides in the public interest that he will investigate, or that he will institute a hearing to inquire into the matter (subsection 45.43(1)).
In summing up this argument for exclusion of the Commissioner from investigation of a complaint concerning the conduct of his responsibilities under the Act the Attorney General submits by written memorandum that:
… under the Act the Commissioner exercises a statutory role in relation to the receipt, investigation and, ultimately, the final decision taken with respect to any complaint, whether or not that complaint is investigated by the Public Complaints Commission. The Act does not contemplate that the holder of the office of Commissioner shall be subject to investigation pursuant to the public complaints procedure. Nor does the Act contemplate that the Chairman and other members of the Public Complaints Commission should be subject to investigation notwithstanding that the Chairman and other members of the Commission are, on a technical reading of s. 45.35, “other persons appointed or employed under the authority of the Act”.
The latter reference, to the comparable position of the Chairman and members of the Commission in relation to any complaint about their conduct, is noted as an anomaly in the 1989-90 Report of the Commission itself, one that it is there suggested might best be addressed by legislative amendment excluding them from the public complaints process. In my view, the reference by analogy to the positions of Chairman and members of the Commission does not assist in resolving the issue concerning the application of the process to complaints from a member of the public concerning the Commissioner’s conduct.
Moreover, the Attorney General submits that, aside from Part VII, the Act as a whole lends support to the exclusion of the alleged conduct of the Commissioner from being the subject of investigation under the public complaints process. In respect to discipline of members of the Force he is the final authority for appeals in relation to certain appeals from informal disciplinary action and in relation to decisions of an adjudicating board in formal discipline proceedings (subsections 42(6) [as am. by S.C. 1990, c. 8, s. 66], 45.14(1) and 45.16(1)-(7)). He has authority to suspend from duty any member who has contravened or is suspected of contravening the Code of Conduct or a statute of Parliament or of a legislature (section 12.1) [as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 7]. He is the final authority for appeals from a recommendation for discharge or demotion which has been affirmed by a discharge and demotion board of the Force (subsection 45.24(1), 45.26(1)-(7)). Finally, the Commissioner constitutes the final level in the grievance process. In all of these proceedings his decisions are not subject to appeal except by way of an application for judicial review.
In light of these particular responsibilities, it is submitted that as the senior officer and manager of the Force, taking into account the unique para-military structure of the Force, the Commissioner is himself not subject to internal processes for informal or formal discipline or for discharge or dismissal, and for the same reason he is not subject to the public complaints procedures provided in Part VII of the Act.
I am not persuaded that the position of the Commissioner in relation to processes that are internal to the RCMP, provides a ready answer to the question posed concerning jurisdiction of the Public Complaints Commission to deal with a complaint about his conduct. The Commission is a body set up by Parliament, under the Act it is true, but to act independently of the Force itself in dealing with complaints from members of the public or initiated by the Chairman. It is a body independent of the internal operations of the RCMP. Just as the Commissioner’s status in relation to other external bodies would not be determined by his status within the Force, in my opinion, it should not be so determined in relation to the Public Complaints Commission.
The two arguments advanced by the Attorney General are not persuasive, in my view, that Parliament intended to exempt from the authority of the Commission or its Chairman a complaint concerning the conduct of the Commissioner in performance of his statutory responsibilities. It is agreed that he is a member of the Force. A complaint against his alleged conduct, whether it be initiated by a member of the public under section 45.35, by the Chairman under section 45.37, or whether it be one which the Chairman considers advisable in the public interest to investigate or to institute a hearing for purposes of an inquiry under section 45.43, includes a complaint about the Commissioner within the words “any member” unless the context and the statute as a whole clearly require a meaning of those words which would exclude a complaint about his conduct as a matter for inquiry. In my view, the context and the statute do not so require. His important roles in relation to various processes under the Act, for management, for the disciplinary process, for discharge and demotion, and even his important role in the management within the Force of the process for dealing with public complaints, do not require, or lead to the implication that Parliament intended, his exclusion from the words “any member” used in relation to public complaints.
The Commissioner’s role in management, within the Force, of the public complaints process, important as it is, is not a basis for finding that Parliament intended complaints about his conduct should be excluded from the jurisdiction of the Commission to investigate. Most of his duties in relation to the process can be, and no doubt are, delegated to others in the Force. Where a complaint about his conduct reaches the Force otherwise than under section 45.43, if there is any sense that the complaint is not frivolous, it may be that it should be referred to the Commission for the Chairman to determine whether in the public interest it should be investigated by the Chairman or by hearing of the Commission.
If the Chairman decides in the public interest that a complaint should be investigated by him or by hearing of the Commission, subsection 45.43(2) makes clear that any consideration of the matter internally by the Force is irrelevant. The Commissioner’s only role under the statute in a case dealt with by the Chairman in this way, aside from receiving the complaint and providing information, comes at the conclusion of the investigation when the Chairman or the Commission submits its report to the Commissioner and the Minister, to which the Commissioner then has a duty to respond (subsections 45.45(14), 45.46(1) and (2)).
The Commissioner’s ultimate involvement in reviewing a report from the Commission or its Chairman, in considering what, if any, action should be taken upon it and reporting to the Commission and the Minister, does not in itself mean that his conduct was intended to be beyond the scrutiny of the Commission in dealing with public complaints. Ultimately the responsibility for management of the Force, even in this regard, is his, subject to the direction of the Minister. The Chairman and the Commission play the role of ombudsman, with ultimate authority to report publicly on their work in dealing with complaints. The Chairman and the Commission report to the Commissioner and the Minister on particular complaints, and publicly on their work in general. The Commission has no executory authority except in relation to investigation and reporting on complaints from the public.
The Commissioner has the same obligations to meet the standards established for conduct of “every member” under section 37 of [as am. idem] the Act including the responsibility “to respect the rights of all persons; […] to maintain the integrity of the law, law enforcement and the administration of justice;… to ensure that any improper or unlawful conduct of any member is not concealed or permitted to continue; to be incorruptible, never accepting or seeking special privilege in the performance of … duties” (paragraphs 37(a), (b), (e), (f)). Having created a Public Complaints Commission to consider public complaints against the conduct of members of the Force, complaints which, if justified, may ultimately reflect inability to meet the standards established by the Act and regulations, it would be for Parliament to exclude, expressly or in a manner not open to doubt, the conduct of the Commissioner or any other member of the Force from the authority of that Commission. To infer that the Commissioner’s conduct is excluded, where the words of the Act do not say so and the context, in my view, does not require it, creates the anomalous result that only the person at the head of the Force, the Commissioner, of all serving members of the RCMP, would be excluded from the Commission’s scrutiny where there is a complaint by a member of the public about his conduct in performance of his duties. While he may also be accountable for his conduct in other forums, it seems to me his exclusion from scrutiny by the Commission would render the Public Complaints Commission’s role less valuable for the primary purpose for which it was created.
That purpose, as articulated by Mr. Justice MacGuigan J.A. and noted earlier, was to provide for objective, open and fair handling of complaints against RCMP members in a manner which will command public confidence, supporting and furthering the work of the RCMP and adequately preserving the delicate balance between the protection of the rights of the public, from having its complaints investigated privately, and the rights of individual members of the RCMP.
It seems to me that in connection with this purpose, section 45.43 plays a critical role, for the work of the Commission and its Chairman are reported upon publicly and hearings conducted under its aegis are public, unlike the internal processes of the Force for dealing with discipline or grievances or public complaints, which are not public processes. Under the Act it is for the Chairman to determine whether, in the public interest, a complaint should be investigated by him or be subject to a hearing by the Commission. If that authority does not comprehend a complaint about the conduct of the Commissioner, as the Attorney General urges, in my view this would seriously undermine the public confidence in the process of the Commission and indeed in the RCMP itself. I do not agree with the submission of the Attorney General that excluding the Commissioner from scrutiny under the public complaint process will not adversely affect that process. Moreover, when leaders are not subject to the same public review of complaints about their conduct as those they lead, not only is public confidence undermined but confidence in their leadership on the part of those they lead will suffer.
I conclude that the statutory meaning of the word “member” in Part VII of the Act as including the Commissioner, is supported by the purposes of Parts VI and VII of the Act, and complaints about his alleged conduct, from a member of the public or initiated by the Chairman, are within the jurisdiction of the Commission.
For the Commission it was argued that inclusion of the Commissioner’s conduct within the authority of the Commission to investigate is consistent with what was described as the evolving principles of accountability under the rule of law demonstrated by judicial decisions, particularly of the Supreme Court of Canada, in recent years. Public accountability, it is urged, helps to ensure that those persons holding public office exercise the significant powers reposed in them in a manner which accords with the rule of law and commands public respect for the integrity of our system of justice. In this vein, it is said that decisions of the Supreme Court have refused to recognize claims of immunity asserted by persons who occupy special office or exercise special powers. The decisions referred to were in relation to disparate issues: Roncarelli v. Duplessis, [1959] S.C.R. 121, dealing with a claim of a provincial premier and attorney general to unrestricted discretion concerning the administration of a provincial statute; Smallwood v. Sparling, [1982] 2 S.C.R. 686 which held a provincial premier to be a compellable witness to testify and produce documents in proceedings of a federal trade practices tribunal; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441 where the Court declined to accept that all Cabinet decisions were beyond the scope of judicial review; Carey v. Ontario, [1986] 2 S.C.R. 637 which held that a claimed Crown privilege does not protect all Cabinet documents from production in a civil action; and Nelles v. Ontario, [1989] 2 S.C.R. 170, which held a provincial attorney general and Crown attorneys did not have absolute immunity from civil suit for malicious prosecution.
The cases cited do not, of course, answer the question for determination here, though it is clear my answer to question 1 of the stated case is consistent with the application of the general principle said to underline these decisions. While the argument against inclusion in the Commission’s authority of complaints about the Commissioner’s conduct is not expressed in terms of claiming immunity from the application of the law, the effect of the interpretation urged by the Attorney General would produce a similar result. Such a result is not warranted unless it is clear that the intent of Parliament is to exclude the Commissioner’s conduct from investigation by the Commission or its Chairman. That intent is not here expressed, and I find it is not clearly implied from Part VII of the Act, in the words used, in the context of Part VII, within the Act as a whole, and from the purposes of Parts VI and VII.
In my view, the answer to question 1 of the stated case is yes. The Commission has jurisdiction to entertain the Inkster Complaint.
Jurisdiction of the Commission to consider a complaint concerning conduct of a person who retires or ceases to be appointed under the Act before initiation of the complaint, or after it is initiated but before the complaint is resolved: question 2(i), the Jensen complaint, and question 2(ii)
I commence consideration of both questions 2(i) and 2(ii) in the stated case together. Though they deal with different circumstances, for the Attorney General it is submitted both should be answered in the negative and for the Commission it is submitted both should be answered in the affirmative. Counsel for Mr. Jensen, whose intervention was directed to the issue of the Commission’s jurisdiction in regard to a complaint concerning conduct of a member who has ceased to be a member or appointed under the Act prior to the initiation of the complaint, supported the position of the Attorney General, that question 2(i) be answered in the negative, but for somewhat different reasons.
In dealing with these two questions the positions of the Commission and the Attorney General are the reverse of the positions adopted in regard to question 1, at least in relation to their reliance upon the statutory meaning to be ascribed to the words of the Act used in sections 45.35, 45.37 and 45.43 concerning a complaint. The Attorney General here relies upon the statutory definition of “member” while the Commission urges that the statutory definition has application only with relation to the time of events giving rise to a complaint. The words used in the sections referred to are that a complaint be “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”.
It is submitted for the Attorney General that for both circumstances set out in questions 2(i) and 2(ii) the statutory definition of “member” clearly means that the public complaints process only applies to complaints concerning serving members of the Force and has no application to complaints concerning persons who have retired from and are not thereafter members of the RCMP. The statutory language relied upon includes the full definition of “member” in subsection 2(1), particularly paragraph (b) of that definition. As we have seen a member is any person
2. …
(a) who has been appointed as an officer or other member of the Force … and
(b) who has not been dismissed or discharged from the Force as provided in this Act, the regulations or the Commissioner’s standing orders;
The Act also provides in section 21 [as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 12] that the Governor in Council may make regulations respecting the administrative discharge of members (paragraph 21(1)(a)) and that subject to the Act and regulations the Commissioner may make rules respecting the administrative discharge of members (paragraph 21(2)(a)). Under the Royal Canadian Mounted Police Regulations, 1988 [SOR/88-36] section 19 provides for administrative discharge as follows:
19. A member, other than an officer, may be discharged from the Force, and it may be recommended that an officer be discharged from the Force, on any of the following grounds, namely,
(a) physical or mental disability;
(b) the serving of a term of imprisonment for an offence imposed by a court in or outside of Canada;
(c) the promotion of economy and efficiency in the Force;
(d) voluntary retirement;
(e) resignation;
(f) abandonment of post;
(g) the reaching of retirement age;
(h) death; or
(i) irregular appointment.
In relation to certain of those grounds other regulations provide processes for voluntary retirement upon qualifying for pension benefits, for resignation upon acceptance of that intent by the Commissioner, and for discharge upon the death of a member. The Act also provides in section 45.28, in connection with formal disciplinary proceedings, that a discharge and demotion board may offer a member, against whom a ground of unsuitability has been established, the opportunity of resigning from the Force. Resignation, in this as in other cases, would be subject to approval by the Commissioner under the regulations.
These statutory provisions and the Supreme Court of Canada decision in Maurice v. Priel, [1989] 1 S.C.R. 1023, it is submitted, clearly indicate that the Public Complaints Commission has no authority to deal with a complaint concerning the conduct of a member who has retired and who is not a member of the Force in either of the circumstances set out in questions 2(i) and (ii).
For the Commission it is urged that in both cases the authority of the Commission to deal with a complaint should be upheld, essentially on the ground that in light of the purposes of Parts VI and VII of the Act there is reason to construe the words used in the statute as meaning that the time of events giving rise to the complaint, the only time of significance to the complainant, is the only time when membership in the Force is relevant. If a member subsequently retires or otherwise leaves the Force, even before the complaint arising from those events is initiated, the Commission should retain jurisdiction to deal with the matter if the purposes for which it was created are to be served, that is, an opportunity for an independent, open process of review of complaints from the public. Moreover, it is urged that in the course of investigation and review of complaints, the interests of the Force may be significant, more so even than those of the parties involved, wherever administrative or other processes of the Force are considered in relation to a complaint.
In my view, the last argument, emphasizing the possibility of benefits to the Force from an investigation which may inevitably involve consideration of administrative or other processes, is collateral to the purposes of the public complaint process. That process is to investigate and report upon complaints about conduct of particular members or others employed under the Act. Moreover, any complaint, even if it not be considered a formal public complaint clearly included within Part VII, may lead to administrative reviews within the RCMP. That is where responsibility for administrative policies and general practices of the Force rests.
For Mr. Jensen, counsel relied in part upon the same argument as the Attorney General concerning the meaning of the statutory language here used, in particular the definition of “member”, excluding those discharged from the Force, as Mr. Jensen was, upon his retirement in the normal process. Here there was no question of his separation from the RCMP to avoid an inquiry by the Commission. Voluntary withdrawal from membership after an investigation has begun is not here in issue.
Counsel for Mr. Jensen also urged that an interpretation of the Act which would include within the Commission’s jurisdiction the Jensen complaint, which was initiated after Mr. Jensen’s retirement in the normal course, would result in discrimination, contrary to section 15 of the Canadian Charter of Rights and Freedoms which guarantees equality before the law. It was urged that if complaints concerning the conduct of a member could be considered even where the member had retired before initiation of the complaint, this would create inequalities between classes of retired members of the Force. Those who retired before Part VII came into force in 1988 would not be subject to scrutiny for alleged conduct while in the RCMP (Royal Canadian Mounted Police Act (Can.) (Re), supra) while those who retired thereafter would be so subject. Even if this were the result, I am not persuaded that this would constitute discrimination contrary to section 15 of the Charter in terms of the test set out by Mr. Justice McIntyre in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, a test which has come to be the standard for considering issues concerning alleged breaches of section 15. That section does not assist in answering the questions here posed.
Another issue raised by counsel for Mr. Jensen concerns what he described as the equities of the case, urging that the purposes of the public complaints process had already been met by the hearing before His Honour Judge Fontana in the criminal prosecution of Mr. Small and others. Finally it was urged that the complainant in this case, Mr. Colford, had no personal interest affected by the conduct alleged; he had no civil remedy at law and ought not to be able to raise matters by the public complaint process that he could not raise through civil judicial processes. The last argument is without significance in light of the specific words of subsection 45.35(1) which provide “[A]ny member of the public having a complaint … may, whether or not that member of the public is affected by the subject-matter of the complaint, make the complaint”. In view of my conclusion, it is unnecessary to deal further with these issues.
Neither the arguments of the Attorney General nor those of the Commission lead directly to the answers to the questions posed, nor do they necessarily support the same answer to both questions, as counsel urged. Answers to the questions depend not only on the definition of “member” about which there can be no real debate in regard to Mr. Jensen. Under that definition he continued to be a member of the Force until the date of his retirement in December 1989, but thereafter he was not a member. The questions here raise for determination the issue of when the status of membership in the Force, or employment under the Act, is essential for purposes of the public complaint process.
In the exercise of his authority under section 45.38 of the Act the Commissioner has made rules respecting public complaints in the form of standing orders (SOR/88-522) [Commissioner’s Standing Orders (Public Complaints)], which include the following provision.
10. An investigation into a complaint shall continue to conclusion whether or not the member or other person whose conduct is the subject-matter of the complaint resigns or terminates employment with the Force.
The Commission submits that this is indicative of a position adopted by the Commissioner himself that termination of membership or employment in the RCMP ought not to bar conclusion of investigation of a complaint about the conduct of a person who is a member or employed at the time of events giving rise to a complaint. Counsel for Mr. Jensen, on the other hand, urges that this Rule clearly implies that it is applicable only in circumstances where a complaint has been initiated and is under consideration before termination of membership.
Three cases discussed by counsel in argument provide some assistance. They are Maurice v. Priel, supra, Rutherford v. The Queen (1983), 4 C.M.A.R. 262 (C.M.A.C.), and Samuels v. Council of College of Physicians and Surgeons of Saskatchewan (1966), 57 W.W.R. 385 (Sask. Q.B.).
In Maurice v. Priel the Supreme Court dismissed an appeal from the Saskatchewan Court of Appeal [(1987) 46 D.L.R. (4th) 416] which had granted an order prohibiting a committee of the provincial law society from hearing, in disciplinary proceedings, complaints concerning the conduct of one who was a practising lawyer at the time of the alleged events but who had been appointed to the bench some years before the complaint was initiated. The Legal Profession Act of Saskatchewan [R.S.S. 1978, c. L-10] provided for review and possible hearing of “any complaint or allegation ... which raises the suggestion that any member of the society has been guilty of conduct unbecoming a barrister and solicitor.” Speaking for the majority of the Saskatchewan Court of Appeal, Bayda C.J.S. found that the Law Society did not have jurisdiction to conduct a hearing because the person in question was not a member of the society. In dissent on this issue Tallis J.A. concluded the Society did have jurisdiction, for the Act required only that the person against whom the complaint was lodged be a member at the time of the alleged misconduct. In the Supreme Court of Canada Mr. Justice Cory, construing The Legal Profession Act and the Judges Act [R.S.C. 1970, c. J-1], found that the person ceased to be a member of the Society upon his appointment to the judiciary and that upon his construction of The Legal Profession Act, the Society was without jurisdiction to deal with the matter. Implicitly, membership in the Society at the time the complaint was initiated was essential if the Society was to have jurisdiction over allegations of misconduct occurring at a time when the person against whom the complaint was made was a member of the Society. Speaking in relation to argument based upon the implications of the conclusion reached earlier by Tallis J.A. in his dissenting opinion, Cory J. said (at page 1032):
That argument cannot be accepted. If it were, it would mean that discipline proceedings could be instituted against deceased members or those who had been retired for many years. It was contended that if the Court did not agree with the submission “once a member always a member” it could lead to abuses as members could resign from the Law Society just before discipline hearings were commenced. In light of the determination that a judge is not a member of the Law Society of Saskatchewan, it is not necessary to deal with this somewhat in terrorem argument. In any event, it should be noted that the Act has now been amended to provide that a member cannot resign from the Law Society without approval of the Benchers.
For the Commission it is urged that Maurice v. Priel is distinguishable in that the case involved legislation with the purpose of imposing discipline and penalties on members found guilty of misconduct, that the Act was concerned with future conduct to be limited by those penalties and that it was primarily concerned with persons and not with misconduct. Here it is said the legislation provides no executory power to impose penalties by the Commission, which serves solely as an advisory body, to investigate and report, and which is concerned only with past conduct alleged, not with remedies, penalties, persons or future conduct. In my view, the distinction is too finely drawn. It is true the Commission’s authority is to report with recommendations as it sees fit, not to impose penalties or sanctions. Yet the purpose of the Public Complaints Commission is to address complaints from the public about conduct of persons with a view to ultimate resolution of the complaints. Inevitably, resolution in many well-founded cases may ultimately result in apologies which reflect adversely upon some members of the Force, or there may be disciplinary proceedings within the RCMP’s own processes, or even criminal or civil actions. The fact that the ultimate result is not finally determined by the Commission does not mean that its investigations and reports are not a significant part of the process of addressing well-founded complaints. Surely it was not intended by Parliament that the elaborate arrangements for dealing with public complaints would simply result in a public report. That report and the Commission’s value lie in the inherent ability of what is said to persuade those with ongoing administrative responsibilities to act to redress well-founded complaints.
In connection with his Charter argument, counsel for Mr. Jensen referred to Rutherford v. The Queen, supra, a decision of the Court Martial Appeal Court in which President Mahoney, for the majority of the Court, allowed an appeal from conviction by a disciplinary court martial on several charges under the National Defence Act [R.S.C. 1970, c. N-4] which were initiated some months after the accused was released from the armed services. All of the charges arose out of his alleged conduct while he was serving in the Armed Forces. At the time of the alleged offences he was subject to the Code of Service Discipline under subsection 55(1) of the National Defence Act, but he was not at the time he was charged and tried except for subsection 55(2) of that Act. This provided that a person subject to the Code of Service Discipline at the time of alleged commission by him of a service offence continues to be liable to be charged, dealt with and tried under that Code notwithstanding he may have, since the commission of the offence, ceased to be subject to the Code. Constitutional issues were there raised in light of section 15 and paragraph 11(f) of the then new Charter, which became law only in the year before the decision was rendered. In this case three of the charges related to offences under the Code of Service Discipline which were not offences cognizable by a civil court, and the other two involved offences which were matters for criminal prosecution if committed outside the military service, and there a right to trial by jury was secured by paragraph 11(f) of the Charter. Mahoney P. construed subsection 55(2) as requiring demonstration that application of military law to a civilian is necessary in order to avoid adverse effect upon the general standard of discipline and efficiency of the military service, which was not established in that case. Of course, this case is not directly relevant, but it is an illustration of the principle applied in Maurice, that jurisdiction of a special statutory tribunal in relation to discipline matters, concerning alleged misconduct of a member of a group subject to the tribunal’s jurisdiction, requires membership in the group not only when the alleged misconduct is said to have occurred but also at the time the complaint is initiated.
In the third case referred to by counsel, Samuels, supra, Disbery J. found that the provincial College of Physicians and Surgeons did not lose jurisdiction to hear and determine allegations of professional misconduct made against a doctor who participated with counsel in preliminary inquiries and initial hearings of the College’s discipline committee, and who, having sought and been granted adjournment of the hearing in order to prepare to answer to complaints, then did not pay his annual professional fees and under the statute was required to be struck off the register of the college. This deals with circumstances analogous to those raised in question 2(ii) though, admittedly, in Samuels the person whose conduct was already under review, ceased to be a member by his own election in circumstances which led to the conclusion he was seeking to avoid completion of the discipline proceedings.
There is a final factor I would advert to, which I draw from the decision of MacGuigan J.A. in Royal Canadian Mounted Police Act (Can) (Re), supra. In finding that Part VII of the Act had no retrospective effect and did not apply to complaints arising from events occurring prior to that Part coming into force in 1988, a factor negating any implied Parliamentary intent that the legislation have retrospective effect was the fact that it “imposes disabilities and obligations on a new group, never before scrutinized, i.e., non-members” (at page 563). That group is the group of persons appointed or employed under the authority of the Act, in addition to members of the Force, any of whom may be responsible for conduct giving rise to a complaint from a member of the public. To find that membership in the RCMP, or appointment or employment under the Act, at the time of events giving rise to a complaint is the only time that membership is required for a complaint to be dealt with under the processes of Part VII would mean that “the disabilities and obligations” referred to by MacGuigan J.A. continue thereafter indefinitely even though there be no complaint made until after termination of membership or employment under the Act. Members and others employed with the RCMP would thus carry obligations after their service ends which have no ready counterpart for those who have left other careers in the public service. If that was intended by Parliament it would, in my view, require clear expression of such an unusual purpose. I do not consider that such a result was intended by Parliament in enacting Part VII of the Act. In my view, the underlying principle of Maurice v. Priel, supra, applies. Membership in the group subject to oversight at the time the supervising body has reason to investigate or review the conduct of a member, that is when a complaint is initiated, is essential, unless the statute creating the supervising regime is construed to provide otherwise.
In my view the words used in Part VII of the statute describing a complaint are to be construed consistently with what I consider the intent of Parliament, that the conduct, first, be related to the performance of duties or functions under the Act, which implicitly requires that the person whose conduct is the subject of complaint be acting under the authority of the Act, and second, that at the time the complaint is initiated the person whose conduct is the subject of complaint be a member or a person appointed or employed under the Act.
Thus, in my opinion, the words in question are to be construed as excluding from the authority of the Commission to investigate, and from the public complaint process generally, a complaint about the conduct of a person who has retired or ceased to be a member of the RCMP prior to initiation of the complaint. Since Mr. Jensen was not a member or otherwise appointed under the Act in August 1990, when the complaint about his alleged conduct was initiated, this was not a complaint within the authority of the Commission to investigate.
This does not mean that a complaint about conduct of a former member or employee will not be of interest to the RCMP itself, even if it is not required to be dealt with as a public complaint within the terms of Part VII. Such a complaint may still raise issues of serious import and of concern to the Force and the Commissioner, and if well-founded may lead to internal change, or if serious, to possible criminal prosecution or, within the applicable statute of limitations, to civil action.
I turn to the final question, that is, the jurisdiction of the Commission in relation to a complaint concerning conduct of a member or other person appointed or employed under the Act who retires from or otherwise ceases to be a member, or appointed or employed, after initiation of the complaint but prior to its resolution.
The question arising in these circumstances may be asked another way. Does the jurisdiction of the Commission to deal with a complaint terminate by subsequent retirement or cessation of employment of the person whose conduct has given rise to the complaint?
My answer to this question is no, even though following retirement or employment under the Act the person whose conduct is in question may be beyond the reach of internal processes of the Force. Neither voluntary nor involuntary separation from the Force terminates the jurisdiction of the Commission, unless perhaps in the case of death of the person whose conduct is in question, a circumstance upon which I do not here comment.
This finding is consistent with the result in Samuels, though the circumstances there were different, relating to a situation where the person concerned was considered to be withdrawing from membership to avoid disciplinary action. In my view, it is consistent with the intent of Parliament in enacting Parts VI and VII of the Act, to provide a process for dealing with public complaints including possible external review by the independent Commission. When the complaint is within its jurisdiction, the Commission should conclude its investigation and report. That role should not be terminated by change in status of the person whose conduct gives rise to the complaint. Investigations and hearings take time, certain complaints may be so serious that those whose conduct is at issue may face criminal or other proceedings which could complicate and delay investigation or hearings by the Commission. Events, unrelated to the complaint, which would in the ordinary course lead to a change in status, and severance of ties, with the Force or with employment under the Act, ought not to result in loss of the Commission’s jurisdiction to deal with a complaint initiated before those events occur.
My conclusions in relation to questions 2(i) and 2(ii) are that, in a case such as that relating to Mr. Jensen, where the complaint concerns conduct of a member or person employed or appointed under the Act who retires or ceases service before a complaint is initiated, the Commission has no authority to deal with the complaint; Part VII of the Act does not apply to it. However, once a complaint is initiated concerning the conduct of a member or person appointed or employed under the Act at the time of the complaint, as well as at the time of events giving rise to the complaint, the jurisdiction of the Commission is not terminated, and Part VII continues to apply, even if thereafter the member or other person ceases service with the RCMP before the complaint is resolved.
Conclusion
For the reasons set out, a judgment goes setting out the questions in the stated case and the following answers.
Question 1—the answer is Yes.
Question 2(i)—the answer is No.
Question 2(ii)—the answer is Yes.
This is not a case for the award of costs.