Judgments

Decision Information

Royal Canadian Mounted Police Act (Can.) (Re) (T.D.)

Collection Judgments
Date 1990-04-11
Report citation [1990] 2 F.C. 750
File numbers T-961-89
Subjects Construction of Statutes
RCMP

Decision Content

T-961-89
In the Matter of paragraph 17(3)(b) of the Feder al Court Act, R.S.C., 1985, c. F-7;
In the Matter of 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;
And in the Matter of Certain Complaints received by or referred to the Royal Canadian Mounted Police Public Complaints Commission;
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: ROYAL CANADIAN MOUNTED POLICE ACT (CAN.) (RE) (T.D.)
Trial Division, MacKay J.—Ottawa, September 5, 1989; April 11, 1990.
Construction of statutes — Retrospective operation — Royal Canadian Mounted Police Act, Parts VI and VII 1986 amendment, creating new external public complaints procedure, receiving Royal Assent March 1986; Part VI pro claimed in force December 1986; Part VII, September 1988 — Complaints involving conduct occurring (1) between proclama tion of Parts VI and VII (ii) before proclamation of either Part, but after Royal Assent and (iii) prior to proclamation and Royal Assent — No express provision for retrospective application — Presumption against retrospective operation — Exemptions from presumption: procedural and public interest legislation, necessary implication — Although legislation pro cedural, also affecting substantive rights by creating new external review of RCMP conduct — Although force members' vested right in disposition of complaint pursuant to former administrative procedure affected, dominant purpose to pro tect public from apprehension of or actual bias if RCMP both supervisor of members and final arbiter of complaints — Legislation retrospective by necessary implication — Anoma lous for Parliament to intend external review of internal grievances and external review of public complaints to come into force on different dates — Retrospective application not limited to time specified after Royal Assent — Interpretation of s. 45.41(1).
RCMP — Jurisdiction of RCMP Public Complaints Com mission to consider complaints under 1986 amendments of Act creating new external review procedure — Complaints based on conduct occurring between Royal Assent and proclamation; before Royal Assent; or between proclamation of Parts VI and VII — Presumption against retrospective application of legis-
lation rebutted as purpose of legislation protection of public, notwithstanding interference with vested right of force mem bers' in disposition of complaints under former procedure — Chairman having discretion to decline to deal with complaint where prejudicial delay.
This was a stated case raising questions as to the jurisdiction of the RCMP Public Complaints Commission to consider com plaints under Part VII of the Royal Canadian Mounted Police Act, as amended by S.C. 1986, c. 11. The complaints relate to events alleged to have occurred before the proclamation of Part VII. The 1986 amendment to the Act received Royal Assent March 26, 1986. Part VI, establishing the Commission as a body separate from the RCMP, was proclaimed in force December 18, 1986. Part VII, providing detailed statutory procedures for the RCMP and the Commission to deal with complaints by the public concerning the conduct of members of the force, was proclaimed in force September 30, 1988. The Act does not expressly provide for the retrospective application of Part VII. The Attorney General argued that the legislation should not have retrospective application. Before Part VII was proclaimed, the procedure for reviewing public complaints was internal and was set out in an administrative bulletin. The issues were whether Part VII should be given retrospective application; if so, whether any time should be specified for events giving rise to complaints that is to be related to dates of adoption or proclamation of the amending Act; and whether the Commission Chairman or the Commission had a discretion to decline to deal with a complaint where there had been delay in its presentation and proceeding with the case may prejudice persons or the investigation process.
Held, the provisions should have a retrospective application; no time should be specified for events giving rise to complaints; the Chairman has discretion to decline to deal with a complaint where there is prejudicial delay.
Statutes are not to be construed as having retrospective operation unless such a construction explicitly appears in the terms of the statute or arises by necessary implication. The exceptions to the presumption against retrospectivity are: pro cedural legislation, which affects only the means by which rights or duties may come to be enforced and has no effect on pre-existing substantive rights; public interest legislation, where the dominant purpose of the legislation is to advance the public interest rather than to punish or prejudice individuals; and, legislation which implies an intention for it to have retrospec tive application.
The changes introduced by Part VII were not merely proce dural. The test for whether a provision is substantive or proce dural is: does the provision affect substantive rights? Although Part VII is procedural, it also affects the rights of the parties. The former procedure contained no provision for an independ ent public review. The process set out in Part VII is an external one involving a newly created body. By creating a new right to
external, public review of RCMP conduct, it has an effect on the content or existence of a right. Accordingly, the exemption from the general presumption against retrospectivity afforded procedural legislation does not apply.
But even though vested interests are affected, a statute will be allowed to operate retrospectively if passed to protect the public from some evil or abuse. Retrospective application to conduct occurring before proclamation of Part VII would not seriously prejudice vested rights, including the interest of a member of the force, against whose conduct there is a com plaint, in the disposition of that complaint under the former administrative procedure rather than under the new statutory one. In any event, a member's right to a particular investigato- ry procedure was less significant in the context of Parts VI and VII than the right of a member of the public to have a matter reviewed by an independent Commission. The objective of Parts VI and VII was the advancement of a public purpose, the protection of the public. Parts VI and VII were enacted to protect the public and the RCMP itself from the risk of an apprehension of, or actual, bias in dealing with complaints. The availability of an independent and open review could only enhance confidence in the force. The presumption against retrospective application of Part VII had been rebutted.
Parliament intended, by necessary implication that the Com mission would deal with complaints initiated after September 30, 1988 when Part VII came into force, whether the conduct complained of occurred before or after that date. Other parts of the same amending statute were enacted to implement other recommendations of the 1976 Marin Commission Report. Part II provides for the creation of an External Review Committee and Part III provides for this External Review Committee to play an important role in the internal grievance process. That role is somewhat comparable to the role of the Public Com plaints Commission as an external body with a reviewing function in relation to public grievances. Parts II and III came into force by proclamation at a date earlier than Part VII. It would seem anomalous to imply an intention that an external review of internal grievances and an external review of public complaints, both originating from the same Inquiry's Report and both included in the same amending statute, are to be effective at different times. Also, if Part VII was not to be applied to complaints alleging misconduct prior to September 30, 1988, there would be two on-going parallel processes for dealing with complaints.
Parts VI and VII may be applied retrospectively without regard to the date when the conduct giving rise to the com plaint is said to have occurred. Conduct giving rise to a complaint which occurred prior to proclamation of Part VII, even prior to March 26, 1986 when the amending statute was formally enacted by Royal Assent and which is the subject of a complaint made or referred to the Commission, is within the jurisdiction of the Commission.
The phrase "a complainant under subsection 45.35(1)" in subsection 45.41(1) was used to distinguish a complaint ini tiated by a complainant who is a member of the public and whose complaint is initiated by the processes described in subsection 45.35(1), from •the complainant when the matter is initiated by the Chairman of the Commission acting under subsection 45.37(1). Any complainant taking the steps to ini tiate a complaint which subsection 45.41(1) describes, whether those steps be before or after subsection 45.35(1) was in force, may if dissatisfied with RCMP handling of the complaint, refer the matter to the Commission.
The legislation provides for discrete duties, and discretion, for each of the Commission and its Chairman. Certain sections of Part VII impose upon the Commission or its Chairman mandatory duties. Under subsection 45.42(1) the Chairman, not the Commission, has an obligation to review every com plaint referred to the Commission pursuant to subsection 45.41(1) at least so far as to conclude that disposition of the complaint is satisfactory or unsatisfactory. Where there has been such delay in referring a complaint to the Commission that unfairness would result, that would be considered by the Chairman in reaching a conclusion whether the disposition by the RCMP was satisfactory. In that determination the Chair man has discretion. The initiation of a complaint pursuant to section 45.37 is completely within the Chairman's discretion.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 17(3)(b). Inquiries Act, R.S.C., 1985, c. I-11.
Interpretation Act, R.S.C., 1985, c. I-21, s. 12.
Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 45.32 (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16), 45.33 (as enacted idem), 45.35 (as enacted idem), 45.36 (as enacted idem), 45.37(1) (as enacted idem), 45.38 (as enacted idem), 45.4(d) (as enacted idem), 45.41 (as enacted idem), 45.42 (as enacted idem), 45.43 (as enacted idem), 45.44 (as enacted idem), 45.45 (as enacted idem), 45.46 (as enacted idem).
CASES JUDICIALLY CONSIDERED APPLIED:
Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256; (1988), 65 O.R. (2d) 638; 52 D.L.R. (4th) 193; 34 C.C.L.I. 237; 47 C.C.L.T. 39; [1988] I.L.R. 1-2370; 9 M.V.R. (2d) 245; 87 N.R. 200; 30 O.A.C. 210; Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; (1989), 57 D.L.R. (4th) 458; [1989] 3 W.W.R. 456; 93 N.R. 1.
CONSIDERED:
R y Secretary of State for Trade and Industry, ex p R, [1989] 1 All ER 647 (Q.B.D.); Latif v. Canadian Human Rights Commission, [1980] 1 F.C. 687; (1979), 105 D.L.R. (3d) 609; 79 C.L.L.C. 14,223; 28 N.R. 494
(C.A.); Re Royal Insurance Co. of Canada and Ontario Human Rights Commission et al. (1985), 51 O.R. (2d) 797; 21 D.L.R. (4th) 764; 12 C.C.L.I. 297; [1985] I.L.R. 1-1944; 12 O.A.C. 206 (Div. Ct.); Acme Village School District (Board of Trustees of) v. Steele-Smith, [1933] S.C.R. 47; In re Athlumney Ex parte Wilson, [1898] 2 Q.B. 547; Sunshine Porcelain Potteries Pty. Ltd. v. Nash, [1961] A.C. 927 (C.A.); Quebec (Attorney General) v. Healey, [1987] 1 S.C.R. 158; (1987), 6 O.A.C. 56; 73 N.R. 288; Re Dhanota and International Union United Automobile, Aerospace and Agriculture Implement Workers of America (U.A.W.), Local 1285; Sheller- Globe of Canada Ltd., Intervenor (1983), 42 O.R. (2d) 73; 83 C.L.L.C. 14,052 (Div. Ct.); Re Commercial Union Assurance et al. and Ontario Human Rights Commission et al. (1987), 59 O.R. (2d) 481; 38 D.L.R. (4th) 405; 24 Admin. L.R. 11; 87 C.L.L.C. 17,029; 23 O.A.C. 148 (Div. Ct.).
AUTHORS CITED
Canada. House of Commons Debates, Vol. V, 1st Sess., 33rd Parl., 34 Eliz. II, 1985, at page 6518.
Coté, Pierre-André The Interpretation of Legislation in Canada, Cowansville, Qué.: Les Editions Yvon Blais Inc., 1984.
Craies on Statute Law, 7th ed. S.G.G. Edgar, London: Sweet & Maxwell Ltd., 1971.
Driedger, E. A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Driedger, E. A. "Statutes: Retroactive, Retrospective Reflections" (1978), 56 Can. B. Rev. 264.
Halsbury's Laws of England, Vol. 44, 4th ed. London: Butterworths, 1983.
Maxwell on the Interpretation of Statutes, 12th ed. P. St.
J. Langan, London: Sweet & Maxwell Limited, 1969. Rawls, John A Theory of Justice Cambridge, Massachu-
setts: Harvard Univ. Press, 1971.
The Canadian Encyclopedic Digest (Ontario), Vol. 31 Title 136 "Statutes" by John M. Edmiston, 3rd ed., 1989 Suppl., Carswell Co. Ltd.
COUNSEL:
Peter A. Downard for RCMP Public Com plaints Commission.
Barbara A. Mclsaac for Attorney General of Canada.
SOLICITORS:
Fasken & Calvin, Toronto, for RCMP Public Complaints Commission.
Deputy Attorney General of Canada for Attorney General of Canada.
The following are the reasons for judgment rendered in English by
MACKAY J.: This matter came on for hearing in Ottawa, Ontario, on September 5, 1989, as a special case stated for the opinion of the Federal Court pursuant to paragraph 17(3)(b) of the Fed eral Court Act, R.S.C., 1985, c. F-7. The matter is brought by agreement between the Royal Canadi- an Mounted Police Public Complaints Commission ("the Commission") and the Attorney General of Canada, who here represents the interests of the RCMP.
A stated case and an agreed statement of facts were filed. The case raises five questions which deal with the jurisdiction of the Commission to consider various complaints under Part VII of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, as amended by S.C. 1986, c. 11 (see R.S.C., 1985 (2nd Supp.), c. 8). The complaints in question relate to events alleged to have occurred before the proclamation of Part VII of the Act. The main issue raised by four of the questions concerns whether Part VII of the Act is to be given retrospective application and if so, whether there is to be any time specified for events giving rise to complaints that is to be related to dates of adop tion or proclamation of the amending Act. The fifth question concerns the discretion, if any, vested in the Commission Chairman or the Com mission to decline to deal with a complaint where there is delay in its presentation.
An Overview of the Legislative and Regulatory Regime
The facts which give rise to this application and which are here described are set out in the agreed statement of facts and are further developed, in regard to statutory and regulatory arrangements, in the memoranda of fact and law submitted by counsel for the Commission and for the Attorney General of Canada. The facts and the legislative arrangements may be summarized as follows.
The Royal Canadian Mounted Police Act, supra, was substantially amended by S.C. 1986, c. 11, which received Royal Assent March 26, 1986.
The amendments included the addition of Parts VI and VII to the Act. Part VI of the Act, establish ing the Commission as a body separate from the RCMP, was proclaimed effective on December 18, 1986. Part VII, which was proclaimed in force September 30, 1988, provides in some detail for statutory procedures for the RCMP and for the Commission to deal with complaints by members of the public concerning the conduct, in the performance of any duty or authorized function, by a member of the police force or any person employed under the Act.
A member of the public may initiate a com plaint by presenting it to the Commission, to any person appointed or employed under the Royal Canadian Mounted Police Act, or to a provincial official responsible for receipt of complaints by the public against police (subsection 45.35(1)). In addition, the Commission Chairman may initiate a complaint (subsection 45.37(1)). However ini tiated, all complaints are to be reported to the Commissioner of the RCMP who is responsible for dealing with each complaint, by way of informal disposition, by declining to investigate or by inves tigating it, and for informing the complainant and the person complained about of the disposition, of the matter (subsections 45.35(3), (4); 45.36; 45.37(2) to (4); 45.38 to 45.45).
The Commission becomes involved with a com plaint in a number of ways, including:
(a) by a member of the public making a com plaint directly to the Commission, pursuant to subsection 45.35(1),
(b) by the Commission Chairman initiating a complaint pursuant to subsection 45.37(1); or
(c) pursuant to subsection 45.41(1), upon writ ten referral of a complaint to the Commission by a complainant who is not satisfied
(i) with the action taken on the complaint by the RCMP, or
(ii) with a direction made by the Commis sioner of the RCMP pursuant to subsection 45.36(5) declining to investigate the com plaint.
A complainant who is dissatisfied with the dis position of a complaint by the RCMP may refer the complaint to the Commission. Upon referral of a complaint, the Commission Chairman is obliged to review the complaint unless he or she has already investigated the complaint or instituted a hearing to inquire into the complaint.
The Commission Chairman also has the power to investigate or institute a hearing to inquire into a complaint, when it is considered to be in the public interest to do so, whether or not the com plaint has been investigated by, reported on, or otherwise dealt with by the RCMP (section 45.43). The Act sets out basic procedures for a hearing which is to be public unless the Commis sion sitting as the inquiry determines otherwise for reasons specified in the Act (sections 45.44 and 45.45).
When the Commission has inquired into a com plaint, either after a referral from a disposition by the RCMP or upon the institution of a hearing in the public interest by its own Chairman, the Com mission shall make a report and recommendations to the Commissioner of the RCMP and the Solici tor General. The Act does not confer any power on the Commission to issue a binding order or direc tion (subsections 45.42(3); 45.43(3); 45.45(14)). The Commissioner, after consideration of the report, is required to report to the Commission Chairman and the Minister any further decision to be taken with reference to the complaint. Thereaf ter, the Commission Chairman shall prepare a final report on the matter and send that to the Minister, the Commissioner and the parties to the complaint (section 45.46).
By mid-February, 1989, a total of 138 com plaints had been made or referred to the Commis sion. Sixty-three of these involved conduct which allegedly occurred before the proclamation of Part VII of the Act, including:
(a) thirty-four concerning conduct which allegedly occurred before September 30, 1988 but on or after December 18, 1986, that is, before the proclamation of Part VII of the Act but on or after the proclamation of Part VI of the Act (these are described for purposes of this special case as "Category 'A' Complaints");
(b) two concerning conduct which allegedly occurred prior to December 18, 1986 but on or after March 26, 1986, that is, prior to proclama tion of either of Parts VII or VI of the Act, but on or after the date upon which the Act received Royal Assent (referred to as "Category 'B' Complaints");
(c) nine concerning conduct which allegedly occurred prior to March 26, 1986, that is, prior to the proclamation of either of Parts VII or VI of the Act and prior to the date upon which the Act received Royal Assent (referred to as "Category 'C' Complaints"); and
(d) eighteen are complaints which cannot be characterized readily as falling within any of the Category "A", "B" or "C" complaints due to the fact that a specific date for the conduct complained of could not be provided by the complainant or, because the complaint con cerned alleged ongoing conduct by members of the RCMP.
It is argued by the Attorney General of Canada that the jurisdiction of the Commission to enter tain the Category "A", "B" and "C" complaints is not supported by the legislation, since a decision by the Commission to consider any complaints of this nature would require that Part VII of the Act be applied retrospectively in relation to the con duct or events giving rise to the complaints. The extent of the retrospective application, it is pointed out, would vary for each of the three categories. The Act does not expressly provide for the retro spective application of Part VII.
The Attorney General submits that the Com mission has no jurisdiction to deal with complaints involving conduct which occurred prior to Septem- ber 30, 1988, when Part VII was proclaimed in force. Alternatively, if the Court determines that the amending Act is to have retrospective effect, applying to complaints about conduct alleged to have occurred before that date, that retrospectivity ought not to extend to complaints about conduct which occurred prior to March 26, 1986 when the amending Act received Royal Assent.
The Commission has informed the complainants whose complaints have been referred to it that the
Commission's jurisdiction to deal with their com plaints is disputed, since the conduct complained of in each case is alleged to have occurred prior to September 30, 1988. The Commission has taken no further action regarding the complaints pending the Court's opinion in this case.
As illustrations of the complaints in question, counsel provided examples, set out in Schedules A to C of the agreed statement of facts, in summary form without details or reference to personal iden tification. These are referred to in the agreed statement of facts and in the stated case as com plaints "A-1", "A-2" and "A-3" from Schedule A, "B-1" from Schedule B, and "C-1" and "C-2" from Schedule C. The following table classifies by relevant times conduct giving rise to the complaint, the date when the complaint was initiated, the date when it was disposed of under procedures of the RCMP, and when the complaint was brought to the attention of the Commission. The table may illustrate at a glance the variety of time patterns presented by the illustrative examples of com plaints and may assist in appreciating the ques tions raised in the stated case.
Illustrative Complaints and Relevant Times
•
Mars. 26/86 Dec. 18/86 Sept. 30/88
Royal Proclamation Proclamation -
Assent • Part VI Part VII
•
Mar. 26/86 Dec. 18/86 .Complaint
Complaint—Event Before to to After to
Mars. 26/86 Dec. 18/86 Sept. 30/88 Sept. 30/88 Commission
Ai Conduct alleged — — June 88 —
Complaint initiated — — June 88 — —
Complaint disposed of — — — Dec. 88 Referred Dec. 88
A2 Conduct alleged — — Mar. 88 — —
Complaint initiated — — Mar. 88. — • —
Complaint disposed of— — May 88 — Referred Dec. 88
A; Conduct alleged — — Aug. 88 — —
Complaint initiated — — Sept. 88 — —
Complaint disposed of — — — Feb. 89 Referred Feb. 89
Bi Conduct alleged — Oct. 86 — — •
Complaint initiated Jan. Mar. 87 —
Complaint disposed of — — Mar. 87 — Referred Dec. 88
C1 Conduct alleged 1981 — — —. _
Complaint initiated ? ? 7 7 —
Complaint disposed of — — — Dec. 88 • Referred Dec. 88
C2 Conduct alleged 1985 — — —, —
Complaint initiated — — — — —
Complaint disposed of - — — Jan. 89 (Initiated)
Exemples de plaintes avec dates pertinentes
26 mars 1986 18 déc. 1986 30 sept. 1988
sanction promulgation - promulgation
royale partie VI partie VII •
entre le entre le Commission
Plainte—Acte avant le 26 mars 1986 18 déc. 1986 après le saisie
26 mars 1986 et le et le 30 sept. 1988 de la
18 déc. 1986 30 sept. 1988 plainte
A l Acte reproché — — juin 1988 — —
Dépôt de la plainte — — juin 1988 — —
Décision — — — déc. 1988 renvoi déc. 1988
A2 Acte reproché — — mars 1988 — • —
Dépôt de la plainte — — mars 1988 — —
Décision — — mai 1988 — renvoi déc. 1988
A3 Acte reproché — — août 1988 — —
Dépôt de la plainte — — sept. 1988 — —
Décision — — — fév. 1989 renvoi fév. 1989
B, Acte reproché — oct. 1986 — — —
Dépôt de la plainte janv., mars 1987 — —
décision — — mars 1987 — renvoi déc. 1988
C1 Acte reproché 1981 — — -- —
Dépôt de la plainte ? ? ? ?
Décision — — — déc. 1988 renvoi déc. 1988
C2 Acte reproché 1985 — — — —
Dépôt de la plainte — — — — —
Décision — — — — janv. 1989 (dépôt)
Stated Case
The stated case filed for the opinion of the Court raises five questions. The full text of these is reproduced in the conclusion of these reasons, together with the answers of this Court. At this stage the questions may be summarily paraphrased as follows:
1. Does the Commission have jurisdiction to consider complaints in category A, relating to conduct alleged to have occurred between December 18, 1986 and September 30, 1988, the dates on which by proclamation Parts VI and VII of the Act came into force?
2. Does the Commission have jurisdiction to consider complaints in category B, relating to conduct alleged to have occurred between March 26, 1986, the date on which the amend ing statute including Parts VI and VII received Royal Assent, and December 18, 1986, the date on which Part VI of the Act was proclaimed in force?
3. Does the Commission have jurisdiction to consider a complaint, e.g. complaint "C,", relat ing to conduct alleged to have occurred prior to March 26, 1986, i.e. before the amending stat-
ute was given Royal Assent, which complaint was apparently initiated before Part VII of the Act was proclaimed in force?
4. Does the Commission have jurisdiction to consider a complaint, e.g. complaint "C 2 ", relat ing to conduct alleged to have occurred prior to March 26, 1986, i.e. before the amending stat ute was given Royal Assent, which complaint was only initiated after Part VII of the Act was proclaimed in force?
5. If the answer to question 3 is "yes" does the Commission have jurisdiction to decline to entertain the complaint, or to decline to investi gate the complaint, or decline to hold a public hearing into the complaint if the lapse of time in bringing the complaint to the Commission is likely to prejudice review of the complaint or the person whose conduct has given rise to the complaint?
Prior Method for Considering Public Complaints
Before turning to the issues raised by the stated case it is useful to summarize the arrangements for dealing with complaints from the public before the Commission's procedures became effective on Sep- tember 30, 1988.
Before Part VII of the Act was proclaimed the RCMP had developed procedures for reviewing complaints by members of the public concerning the conduct of members of the force. RCMP Administrative Bulletin AM-740, titled "Public Complaints", issued October 1984 and revised in January 1986 and March 1987, set out those procedures. Complaints from the public which reached the RCMP were dealt with under these procedures, about 1,300 of them in 1986 and some 1,600 in 1987.
Counsel for the Commission and for the Attor ney General differed about the statutory or regula tory authority on which these procedures were based, including differences about possible statu tory grounds for procedures relating to internal discipline and to public complaints. They differed as well about the significance, if any, of implica tions of the Inquiries Act, R.S.C., 1985, c. H11, a
statute of general application without reference to the Royal Canadian Mounted Police Act, for pos sible investigation of matters of public complaint about conduct of members of the force. Those differences are not directly germane to the issues here raised. Counsel appeared to be agreed that the RCMP had a process for dealing with public complaints before Part VII was proclaimed, that the amending statute in Parts VI and VII, creating a Public Complaints Commission and a procedure for dealing with public complaints reflected in part the recommendations made in 1976 by the Com mission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedures within the Royal Canadian Mounted Police (the "Marin Commission"), and finally, that Part VII did establish new statutory procedures for dealing with public complaints, including, in part, proce dures to be followed by the RCMP, as well as by the new Commission in dealing with these complaints.
All of the complaints outlined with the stated case as examples, except complaint "C-2", were initiated by presentation to the RCMP, not to the Commission, before Part VII of the Act was pro claimed and these were dealt with in accord with the RCMP complaints procedures. As noted in the summary table above all were "disposed of", i.e. investigated, if appropriate, or otherwise dealt with and reported on in accord with those procedures. In the cases of complaints "A-2" and "B-1" they were disposed of before, and in the cases of com plaints "A-1", "A-3" and "C-1" they were dis posed of after, Part ViI of the Act was proclaimed. All have since been referred to the Commission by the complainants who were not satisfied with the outcome of RCMP procedures, except complaint "C-2" which is assumed to have been initiated since Part VII was proclaimed.
Issues Raised by the Stated Case
Counsel for the Commission submitted that the stated case gives rise to four issues:
1. Retrospectivity—Does Part VII of the Act operate retrospectively with respect to conduct occurring before it came into force?
2. Retrospectivity—If so, does the Commission have jurisdiction pursuant to Part VII of the Act to entertain complaints arising from conduct by the RCMP alleged to have occurred:
a) between December 18, 1986 and Sept. 30, 1988 ("A-1" to "A-3")
b) between March 26, 198 . 6 and Dec. 18, 1986 ("B-1")
c) prior to March 26, 1986 ("C-1" and "C-2")?
Counsel for the Attorney General submitted that if Part VII is to have retrospective effect, to conduct before September 30, 1988, which is disputed, that effect should extend to conduct occurring after March 26, 1986, but not before that.
3. The Interpretation of Subsection 45.41(1) of the Act—Is a person who has made a complaint prior to the coming into force of subsection 45.35(1) "a complainant under subsection 45.35(1)" within the meaning of subsection 45.41(1), both subsections being within Part VII.
Counsel for the Attorney General submits that this issue is simply another manifestation of the main question, whether Part VII is to have retrospective effect.
4. Discretion of the Commission—Does the Commission or the Chairman have authority to decline to investigate or review a referred com plaint where the conduct alleged, giving rise to the complaint, occurred some years earlier and proceeding with the case may prejudice persons or the investigation process.
Resolution of these issues depends upon inter pretation of the legislation in question, in particu lar Part VII of the Act. There is no dispute that interpretation depends upon the purposes or objec tives of the legislation, in accord with section 12 of the Interpretation Act, R.S.C., 1985, c. I-21, which provides:
12. Every enactment is deemed remedial, and shall be giver such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
It is in the application of this general principle to the situations brought to the attention of the Com mission, by referral or initiation of complaints from members of the public, that differences have arisen.
1. Retrospective operation of Part VII
It may be trite to record that questions of retrospective application of the statute arise only in relation to conduct giving rise to complaints, which conduct is alleged to have occurred before proclamation of relevant Parts of the Act or before Royal Assent. There is no question of retrospective application of the legislation to complaints sought to be presented or referred to the Commission before September 30, 1988 when Part VII came into force. In the latter sense the legislation oper ates only prospectively.
Here the legislation is not explicit about the timing of conduct complained of which was intend ed to be dealt with by the Commission. In that sense there is no express provision about its retro spective application to conduct alleged to have occurred before Part VII was in force. In such a case, where there is difference about the construc tion or interpretation of the words of the statute, principles of interpretation including those relating to retrospective operation, may assist in reaching a conclusion about the objectives or purposes of the legislation, and thus in resolving the issues here presented.
General principles—retrospective operation of statutes
There is no difference between counsel about the general principles for construing statutes in tem poral terms. Reference was made to several lead-
ing authors on legislative interpretation.' For our purposes it is sufficient to refer to Halsbury's Laws of England, Vol. 44 (4th ed., 1983), para graphs 922 [pages 570-571] and 925 [page 574], which include the following passages:
... The general rule is that all statutes, other than those which are merely declaratory, or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature. Similarly, the courts will construe a provision as conferring power to act retrospectively only when clear words are used.
... The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament.
Moreover, it is presumed that procedural statutes are intend ed to be fully retrospective in their operation, that is to say, are intended to apply not merely to future actions in respect of existing causes, but equally to proceedings instituted before their commencement ... However, a procedural enactment will not be applied retrospectively without plain words if the effect would be to deprive a person of a vested right so that, for example, the right of a plaintiff to continue an action already begun was not affected by a subsequent statute imposing a period of limitation, whilst the applicability to pending proceed ings of a provision altering the structure of appeals may depend on whether it increases or reduces rights of appeal.
Provisions introducing new remedies have been classed with provisions as to procedure for the purposes of the rules relating to retrospective effect, so that they are prima facie applicable both to proceedings subsequently begun in respect of existing causes of action and to existing proceedings, whether pending before a court of first instance or an appellate tribunal, and provisions suspending remedies are probably to be regarded as procedural in character.
' In addition to references to Halsbury, as noted, counsel for the parties referred to the following authors on legislative interpretation:
Côté, The Interpretation of Legislation in Canada, (1984) pp. 133-135, 140-141; Craies on Statute Law, (1971, 7th ed.) pp. 393-395; Driedger, Construction of Statutes, (1983, 2nd ed.) p. 223; Driedger, "Statutes: Retroactive, Retrospective Reflections", (1978), 56 Can Bar Rev. 264, at p. 275; The Canadian Encyclopedic Digest (Ont.) (3rd Ed. 1989 Supp.), Vol. 31, Title 136, "Statutes", by John M. Edmiston p. 109, para. 251; Maxwell on the Interpretation of Statutes, (1976, 12th Ed.),' p. 215; Rawls, A Theory of Justice, (1971), p. 238.
In relating these general principles to the legis lation here in question counsel emphasize different aspects. Thus, while the Attorney General of Canada has taken the position that statutes are not to be construed as having retrospective operation unless such a construction explicitly appears in the terms of the statute or arises by necessary implica tion, counsel for the Commission has pointed out that there are certain exceptions to that presump tion which must be addressed in this case. These relate to what counsel termed procedural retros- pectivity, public interest retrospectivity, and implied retrospectivity. The effect of postponement is another matter addressed by counsel.
(i) Procedural Retrospectivity
Counsel for the Commission has submitted, relying in part, on the above-quoted passages from Halsbury's Laws of England, that Parts VI and VII of the Act establish only a new procedure for the investigation of public complaints against members of the RCMP, and that procedural legis lation, which affects only the means by which rights or duties may come to be enforced and has no effect upon pre-existing substantive rights, is exempt from the common law presumption against retrospectivity. Additional support for this posi tion, the Commission submits, is found in Angus v. Sun Alliance Insurance Ço., [1988] 2 S.C.R. 256, where Mr. Justice La Forest states, at page 262:
The initial propositions recited ... are unexceptionable. There is a presumption that statutes do not operate with retrospective effect. "Procedural" provisions, however, are not subject to the presumption. To the contrary, they are presumed to operate retrospectively ...
Mr. Justice La Forest goes on to comment, how ever, that "The distinction between substantive and procedural provisions ... is far from clear".
For the Commission it is argued that the RCMP Complaints Procedure antedating the proclama tion of Part VII, together with possible public inquiries under the Inquiries Act, supra, constitut ed procedures for dealing with complaints from members of the public and that Part VII of the Act, when proclaimed, simply provided for revised procedures. Members of the force or other
employees under the Royal Canadian Mounted Police Act were subject to possible disciplinary action, or to other criminal or civil proceedings, as a result of investigation of complaints about their conduct. In the perspective of counsel for the Commission, Part VII is characterized as a proce dural statute, not one that adversely affects sub stantive rights, and thus it would be within the recognized exception to the general principle against the retrospective operation of legislation.
For the Attorney General it is submitted that a review of the body of case law concerned with the distinction between statutes which affect only procedure and those which affect substantive rights demonstrates that Part VII of the Act con tains substantive provisions which "have the poten tial of interfering with vested rights, or attaching new consequences to completed acts".
Counsel for the Attorney General argues that the public complaint process under Part VII is substantively different from the process under the RCMP Public Complaints procedure:
The latter did not establish a statutory right to investigation or a statutory procedure for such an investigation by the R.C.M.P., had no provision for an independent public review by anybody such as the Commission, and, in any event, was an administrative procedure only.
Part VII creates a new, mandatory, scheme of internal review and investigation by the R.C.M.P.
The provisions of Part VII introduce a completely new concept of a statutory internal public inquiry and review. The public review process contemplates the holding of formal public hear ings and the potential for irreversible harm to an individual's reputation as a result of the process, even if he or she is eventually exonerated of any wrong doing.
(Memorandum of fact and law of the Attorney General of Canada, page 11, paragraphs 37-39.)
The review process by the Commission is described as an external process involving a newly created body which did not exist and there was no compa rable role or function in connection with the pre existing RCMP procedures.
For the Attorney General it is also submitted the Commission, by analogy, may be seen to oper-
ate either as a form of appellate review of the RCMP investigation, or, when the Chairman invokes the public interest, as an external review of first instance. The application of Part . VII may ultimately result in the punishment of the person whose conduct is under review. In short, counsel for the Attorney General submits that:
The introduction of Part VII attaches and imposes, "new disabilities" and "new duties". It goes far beyond a mere procedural change to an existing proceeding.
(Memorandum of fact and law, at page 12.)
In support of the Attorney General's submission counsel referred to a number of authorities. In R v Secretary of State for Trade and Industry, ex p R, [1989] 1 All ER 647 (Q.B.D.), the Court declined to apply retrospectively, to activities occurring before its enactment, the Financial Services Act, 1986, . which statute was interpreted to establish an entirely new regime for regulating financial ser vices. In Latif v. Canadian Human Rights Com mission, [1980] 1 F.C. 687 (C.A.), Mr. Justice Le Dain for the Court of Appeal, declined to apply the Canadian Human Rights Act [S.C. 1976-77, c. 33] to circumstances that had occurred and been dealt with before enactment of the Act. In Re Royal Insurance Co. of Canada and Ontario Human Rights Commission et al. (1985), 51 O.R. (2d) 797 (Div. Ct.), the Court similarly declined to apply an amendment to the Ontario Human Rights Code with retrospective effect upon a con tract concluded prior to the amendment. These cases, illustrate situations where the legislation was construed as intended to affect substantive rights, and thus not intended to operate retrospectively.
In Angus v. Sun Alliance Insurance Co., (supra), Mr. Justice La Forest has held [at page 265] that:
A provision is substantive or procedural for the purposes of retrospective application not according to whether or not it is based upon a legal fiction, but according to whether or not it affects substantive rights.
He then goes on to quote [at page 265] from P.-A. Côté, in The Interpretation of Legislation in
Canada (191{41 a t nape 137.
In dealing with questions of temporal application of statutes, the term "procedural" has an important connotation: to deter mine if the provision will be applied immediately [i.e. to pending cases], "... the question to be considered is not simply whether the enactment is one affecting procedure but whether it affects procedure only and does not affect substantial rights of the parties." [Quoting in DeRoussy v. Nesbitt (1920), 53 D.L.R. 514, 516.]
Finally, Mr. Justice La Forest comments, at page 265:
Normally, rules of procedure do not affect the content or existence of an action or defence (or right, obligation, or whatever else is the subject of the legislation), but only the manner of its enforcement or use.
There was no statutory scheme in place for the investigation of complaints prior to the amend ments to the Act which established the Commis sion and its powers to investigate complaints against the RCMP Part VII of the Act, for the first time, imposes a statutory obligation on the RCMP to conduct investigations of complaints' against it. Prior to Part VII there existed an internal review procedure whereby when a member of the public complained about the conduct of a member of the RCMP, the complaint was subject to an internal review by the RCMP in accordance with a public complaints review procedure and set out in RCMP Administrative Bulletin AM-740. Complaints were made in the first instance direct ly to representatives of the RCMP or to provincial or federal law enforcement officials, and once made were reviewed only by the RCMP pursuant to this procedure. As noted earlier, all of the complaints described in Schedules "A" to "C", with the exception of complaint "C-2", were made in the first instance in this manner, and were dealt with pursuant to the RCMP complaints procedure.
I am of the opinion that the provisions intro duced by Part VII of the Act go beyond a mere procedural change to the previously existing arrangements. I understand the test for whether a provision is substantive or procedural, as set out in Angus v. Sun Alliance Insurance Co., to be expressed in the following question: Does the provision affect substantive rights? It is not enough to ask whether the provisions are provi sions which affect procedure—one must ask
whether they affect procedure only and do not affect substantive rights of the parties.
In this case; it is clear that the provisions intro duced in Part VII affect procedural rights. Beyond those, however, other rights of the parties are also affected. The former RCMP complaints procedure contained no provision for an independent public review, such as that now set out in Part VII to be carried out by the Commission, a body external to the RCMP itself. As counsel for the Attorney General has pointed out, the review process by the Commission, as set out in Part VII, is an external process involving a newly created body which had no role or function in connection with the former RCMP complaints procedure. This is a change which has an effect on the content or existence of a right. It creates a new right to external, public review of RCMP conduct, and for most complaints it will extend the time taken for consideration of complaints, it may involve hearings, generally in public, and until matters are finally disposed of the uncertainties attendant on the process will be extended.
Consequently, I am not persuaded, despite sub missions of counsel for the Commission, that Parts VI and VII of the Act establish only a new proce dure for the investigation of public complaints against members of the RCMP. The exemption from the general presumption against retrospec- tivity afforded procedural legislation does not, therefore, assist greatly in construing the intent and purposes of the legislation here in question.
(ii) Retrospectivity and the Public Interest
The Commission submits that Parts VI and VII of the Act have been enacted (a) to prevent any appearance of injustice which might arise when the RCMP itself functions as both the supervisor of members and the final arbiter for complaints about their conduct, and (b) to protect the public and the RCMP from the risks of any such appre hension of or actual bias, thus maintaining public confidence in the integrity of the police force.
Counsel for the Commission argues, in relation to this submission, that where the dominant purpose of legislation is to advance the public interest rather than to punish or prejudice individuals, the legislation may be retrospectively applied. In sup port of this argument counsel has referred to sever al cases, among them the decision of the Supreme Court of Canada in Acme Village School District (Board of Trustees of) v. Steele-Smith, [1933] S.C.R. 47, at page 53, where Mr. Justice Lamont stated the principle as follows, quoting from Craies on Statute Law, 3rd ed., at page 336:
If a statute is passed for the purpose of protecting the public against some evil or abuse, it will be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right.
Counsel for the Commission points out that "public interest retrospectivity" has more recently been addressed by the Supreme Court of Canada in Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301, a case which dealt, in part, with whether or not action taken by the Alberta Securities Commission under a "new" Securities Act attracted the presumption against the retros- pectivity of statutes. In Brosseau, Madame Justice L'Heureux-Dubé quoted, at page 318, from Driedger, Construction of Statutes (1983, 2nd ed.):
... there are three kinds of statutes that can properly be said to be retrospective, but there is only one that attracts the pre sumption. First, there are the statutes that attach benevolent consequences to a prior event; they do not attract the presump tion. Second, there are those that attach prejudicial conse quences to a prior event; they attract the presumption. Third, there are those that impose a penalty on a person who is described by reference to a prior event, but the penalty is not intended as further punishment for the event; these do not attract the presumption.
It is this third kind of statute that the Commis sion argues is of relevance to this case, for as Madame Justice L'Heureux-Dubé points out in Brosseau (at page 319):
A sub-category of the third type of statute described by Driedger is enactments which may impose a penalty on a person related to a past event, so long as the goal of the penalty is not to punish the person in question, but to protect the public.
This point is summarized, she says [at page 320], by Driedger in "Statutes: Retroactive, Retrospec-
tive Reflections" (1978), 56 Can. Bar Rev. 264, at page 275:
In the end, resort must be had to the object of the statute. If the intent is to punish or penalize a person for having done what he did, the presumption applies, because a new conse quence is attached to a prior event. But if the new punishment or penalty is intended to protect the public, the presumption does not apply.
Madame Justice L'Heureux-Dubé concluded [at page 321], in Brosseau, that since the provisions there in question were designed to disqualify from trading in securities those persons whom the Com mission found to have committed acts which called into question their business integrity, a measure designed to protect the public, rather than one designed for punishment, the presumption against the retrospective effect of statutes was rebutted. Counsel for the Commission would have me con clude, similarly, that since the provisions in Part VII are designed to protect the public, the pre sumption does not apply.
Counsel for the Attorney General concedes that, as a general proposition, the Courts have recog nized that when legislation has as its dominant objective the advancement of a public purpose, a retrospective application may be implied. Counsel has submitted, however, that:
... such a retrospective application cannot be applied to the prejudice of vested rights or interests. The mere fact that legislation is remedial is not sufficient to rebut the presumption against retrospectivity.
(Memorandum of fact and law of the Attorney General of Canada, page 13.)
Moreover, counsel for the Attorney General argues that Brosseau is not applicable to the case before me, since, it is submitted, Part VII does not have as its dominant purpose protection of the public. "A mere public interest", it is argued, "without the element of protection is insufficient".
What are the "vested rights" here affected by the legislation? It is suggested that members of the force or employees under the Act against whose conduct there is a complaint from a member of the public, have an interest in the disposition of that complaint under a particular administrative proce dure, the RCMP Public Complaints procedures,
rather than under the new statutory procedures. Especially is this so where the matter has been disposed of before Part VII was in force, as in complaints A-2 and B-1. It is suggested also that the new statutory process and involvement of the Commission may lead to public exposure if there is a hearing, or to punishment as a result of the involvement of the Commission. On the other hand, I must note that those possible consequences are not more likely as an outcome than scrutiny by the Commission or its Chairman supporting the disposition of the matter already made by the Commissioner of the RCMP. Also, as noted previ ously, the Commission's authority does not include the imposition of punishment, for its reports can only provide recommendations for action by the Commissioner or the Minister within whose au thority remains any final decision on action to be taken.
Further, to the extent that it may be perceived a member complained about has a vested right in a particular investigatory procedure, and I am not persuaded that this is the case, that is surely less significant in the overall context of Parts VI and VII of the Act, than the right of a member of the public, dissatisfied with the outcome of a com plaint as a result of internal RCMP processes, to have the matter reviewed by an independent Commission.
Notwithstanding the arguments raised to the contrary, I am impressed by the relevance here of Madame Justice L'Heureux-Dubé's decision in Brosseau. I do not accept that in this case retro spective application to conduct occurring before proclamation of Part VII would seriously prejudice vested rights or interests. Even if vested rights or interests are affected, as counsel for the Commis sion has replied, the principle of public interest retrospectivity operates as an exception to the principle that legislation is not retrospectively applied. This principle is stated clearly in the previously quoted passage from Craies on Statute Law; notwithstanding that the retrospective opera tion of a statute will "deprive some person or persons of a vested right", the statute will be allowed to operate retrospectively where the stat-
ute is passed "for the purpose of protecting the public against some evil or abuse".
Nevertheless, the submission of counsel for the Attorney General that Part VII does not have as its dominant purpose protection of the public requires careful scrutiny. It need hardly be reite rated that the provisions in Part VII must be intended to protect the public in order that the presumption against retrospectivity not apply. What, then, is the object of Part VII?
The Commission submits that Parts VI and VII of the Act have been enacted with two objectives: to prevent any appearance of injustice which might arise when the RCMP itself functions as both the supervisor and the final arbiter for complaints, and to protect the public and the RCMP from the risks of any such apprehension of or actual bias. The public has an interest, as does the RCMP itself, the Commission submits, in ensuring that public complaints against the RCMP are seen to be justly assessed by an independent authority. The creation of the Commission, it is submitted, "has thus had as its primary purpose the enhancement of public confidence in the RCMP and the protection of the public".
Counsel referred to the report of the Marin Commission, which is of assistance in providing general understanding of the background circum stances prior to enactment of the legislation. Ref erence was also made to the Hansard Debates, House of Commons, September 11, 1985, at page 6518, which records the opening of debate on second reading of the Bill [C-65] including Parts
VI and VII which amended the Royal Canadian Mounted Police Act, when the then Solicitor Gen eral of Canada commented:
I see the establishment of the public complaints commission as an amendment of paramount importance. It is a contempo rary response to a need for objective, open and fair handling of complaints against RCMP members in a manner which will command public confidence.
I am prepared to conclude that Parts VI and
VII in the amendments to the Act were enacted with the primary objective of protecting the public
and the RCMP itself from the risk of an apprehen sion of or actual bias in dealing with complaints about police conduct. Prior to these amendments, the RCMP itself was functioning as the sole arbit er of complaints made against it. The opportunity for independent and open review by the Commis sion of RCMP disposal of complaints can only enhance confidence of the general public in the force and in its activities.
In my view the dominant objective of Parts VI and VII of the Act is the advancement of a public purpose, the protection of the public. To the extent these amendments may be said to affect vested rights or interests, or to lead to punishment for past conduct, that is subordinate to the dominant objective here, just as it was, in a different context, in Brosseau. In light of the dominant purpose here, the protection of the public interest, the presump tion against retrospective application of Part VII, to conduct occurring before its proclamation in force, is rebutted.
(iii) Implied Retrospectivity and the Effect of Postponement
Counsel for the parties agreed that legislation may be given retrospective application where that is implicitly intended by Parliament. They differ on whether an implication of that intention can be drawn in this case.
For the Attorney General it is argued that this implication arises if the statute must be so applied in order to give it effect and that retrospective effect is only applicable if it cannot be avoided without doing violence to the language of the enactment. Reliance was placed on In re Athlum- ney Ex parte Wilson, [1898] 2 Q.B. 547, per Wright J. at pages 551-552; and upon Sunshine Porcelain Potteries Pty. Ltd. v. Nash, [1961] A.C. 927 (C.A.). As I read those cases, however, they do not support so narrow a concept of implied retrospectivity as was suggested by the Attorney General. In re Athlumney is a case concerned with application of bankruptcy legislation to a bank ruptcy scheme approved by the Court prior to the enactment, and the legislation was treated as
impairing existing rights and obligations. In Sun shine Porcelain Potteries, an amendment to work ers' compensation legislation was given retrospec tive effect in relation to employment and the cause of injury both of which occurred prior to the amendment. The presumption against retrospec tive application was rebutted, and an implied intention that the legislation be given retrospective effect was drawn from the circumstances of the case.
It is by this broader approach to determining the legislative intent, that the authorities relied upon by counsel for the Commission suggest that retro spective application of the legislation may be implied. Thus, the Supreme Court of Canada in Quebec (Attorney General) v. Healey, [1987] 1 S.C.R. 158, at pages 177-178; and earlier in Acme Village School District (Board of Trustees of) v. Steele-Smith, [1933] S.C.R. 47, found an implied intention that legislation be applied with retrospec tive effect, drawing upon the circumstances in which the legislation was passed, its general pur poses and the procedures adopted by the statutes in question.
For the Commission it is submitted that Parts VI and VII of the Act were enacted to remedy a perceived evil, being any appearance of unfairness which might arise when the RCMP itself functions as both the supervisor and the final arbiter for public complaints against its members. Such remedial legislation may operate, it was argued, in order to ensure that all cases giving rise to the mischief sought to be remedied are in fact addressed by an impartial and independent review body.
Further, it is submitted that the provisions of Part VII of the Act expressly contemplate the receipt and investigation of complaints by the Commission from the time that Part VII of the Act came into force .. .
(Memorandum of fact and law of the Commission, page 15.)
One factor in the general circumstances relating to the enactment and application of Part VII, not
referred to by counsel in argument, may have relevance. Other parts of the same amending stat ute were apparently enacted to implement other recommendations of the Report of the Marin Commission. Thus, Part II provided for the crea tion of the Royal Canadian Mounted Police Exter nal Review Committee, and Part III, providing a statutory internal grievance procedure for com plaints by members of the RCMP, provides for this External Review Committee to play an impor tant role in the grievance process. That role is somewhat comparable to the role of the Public Complaints Commission as an external body with a reviewing function in relation to public griev ances. Parts II and III of the Act also came into force by proclamation, at a date earlier than Part VII. It would seem to me anomalous to conclude that Parliament would have intended an external review of internal grievances and an external review of public complaints, both originating from the same Inquiry's Report and both included in the same amending statute, to be effective at different times.
One other factor, touched upon in argument on behalf of the Commission, arises from the implica tions of the position of the Attorney General that Part VII should not be applied in the case of a complaint alleging conduct that occurred prior to September 30, 1988. If that were the case, it would be necessary, if public complaints are to be dealt with, that for a considerable time there be two on-going parallel processes for dealing with complaints, one involving the RCMP alone for complaints about conduct occurring before Part VII was in force and the other involving the RCMP and the new Commission where the con duct alleged occurred after that date.
Finally, the Commission argues, in relation to the effect of postponement arising from the time between enactment of Part VII and its coming into force upon proclamation, that even if Part VII were not to apply to conduct antedating enact ment, delay in Part VII coming into force ought not to preclude the Commission dealing with com plaints about conduct occurring after the date of
Royal Assent. For the Attorney General it is agreed that if Part VII is to have retrospective effect that should be to March 26, 1986, the date of Royal Assent, but no earlier, for conduct giving rise to a complaint.
The Commission points out that after the date of Royal Assent all persons interested were on notice or could learn of the processes introduced by the amending Act to deal with complaints from the public. They would also be in a position to learn that Parts VI and VII providing these pro cesses could come into force at any time. Complai nants would have an expectation that there would be review by an independent body if they were dissatisfied with disposition of their complaints by the RCMP. Those complained about would share a similar expectation.
In my view, the postponement of coming into force of Part VII has no bearing on whether complaints about conduct occurring between the date of Royal Assent and the date of proclamation are within the jurisdiction of the Commission. As I understand it, counsel essentially agreed upon this.
From the general circumstances concerning the enactment and its possible application, from my earlier conclusion that the objective of Parts VI and VII was to provide protection of public inter ests, and that any effect upon vested rights or interests is subordinate to the public protection intended, I find that Parliament intended, by necessary implication, that the Commission would be concerned with complaints initiated by submis sion to the Commission, or referred to the Com mission, after September 30, 1988 when Part VII came into force, whether the conduct upon which the complaint is based occurred before or after that date.
2. The extent to which Part VII of the Act oper ates retrospectively
The issue to be determined under this heading is simply, it would appear, "how far back" the retro spective application of Parts VI and VII of the Act may reach. The stated case asks whether the Com-
mission has jurisdiction pursuant to Part VII of the Act to entertain complaints arising from con duct by the RCMP alleged to have occurred:
a) between proclamation of Part VI (December 18, 1986) and proclamation of Part VII (Sep- tember 30, 1988) (Category "A" complaints);
b) between March 26, 1986 (Royal Assent) and proclamation of Part VI (December 18, 1986) (Category "B" complaints); and
c) prior to Royal Assent .(March 26, 1986) (Complaints "C-1" and "C-2").
As noted earlier counsel for the Attorney Gener al conceded, during argument, that the retrospec tive application of Parts VI and VII is an "all-or- nothing proposition" at least in relation to the period between Royal Assent and proclamation of Part VII. In other words, having found that the provisions have a retrospective application, there is no reason to limit retrospective application to a time specified after Royal Assent. Nevertheless, the Attorney General submits that retrospective application ought not to apply to complaints where the conduct alleged occurred before Royal Assent to the amending statute.
In Halsbury's Laws of England (4th Ed., Vol. 44) it is stated at page 573, paragraph 924 under the heading "Avoidance of greater degree of retro spection than necessary":
It is a corollary of the general presumption against retrospec tion that, even where a statute is clearly intended to be to some extent retrospective, it is not to be construed as having a greater retrospective effect than its language renders necessary.
Counsel for the Commission argued that where retrospective application is in fact recognized it should be limited to the extent necessary to carry out the objects of the legislation. In this case the objects of the legislation, it was urged, are carried out by not imposing any date of occurrence of the conduct that gives rise to a complaint.
I find that having concluded that Parts VI and VII have a retrospective application based on the
principle that the presumption against retrospec- tivity was rebutted by the provisions' objective of protection of the public, and that this objective or purpose implies an intention that the legislation have retrospective application to all cases which independent review would serve to settle in the manner prescribed by Part VII, it is inappropriate to assign a date to which retrospective application should be limited.
If the intention of Parliament, as I have found it, is to be effective in accordance with section 12 of the Interpretation Act, then conduct giving rise to a complaint, which occurred prior to proclama tion of Part VII, even prior to March 26, 1986, when the amending statute was formally enacted by Royal Assent, and which is the subject of a complaint made or referred to the Commission, is a matter properly within jurisdiction of the Com mission. In the result, Parts VI and VII may be applied retrospectively to all three categories of complaints, "A" through "C" without regard to the date when the conduct giving rise to the com plaint is said to have occurred.
3. The interpretation of subsection 45.41(1) of the Act
The issue concerning the interpretation to be given to subsection 45.41(1) contained in Part VII of the Act, arises by reason of the reference in that subsection to subsection 45.35(1). For the Attor ney General, it is submitted that this issue is simply another way of considering the question of whether Part VII is to have retrospective applica tion to conduct alleged to have occurred before Part VII was in force, a submission with which I tend to agree. Nevertheless, there was argument addressed to the issue and it is specifically raised as an aspect of three of the questions raised for determination.
Subsection 45.35(1) of the Royal Canadian Mounted Police Act reads as follows:
45.35 (1) Any member of the public having 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 may, whether or not that member of the public is affected by the subject-matter of the complaint, make the complaint to
(a) the Commission;
(b) any member or other person appointed or employed under the authority of this Act; or
(e) the provincial authority in the province in which the subject-matter of the complaint arose that is responsible for the receipt and investigation of complaints by the public against police.
Subsection 45.41(1) states:
45.41 (1) A complainant under subsection 45.35(1) who is not satisfied with the disposition of the complaint by the Force or with a direction under subsection 45.36(5) in respect of the complaint may refer the complaint in writing to the Commis sion for review.
The Commission submits that the phrase "a complainant under subsection 45.35(1) of the Act", as it appears in subsection 45.41(1) of the Act, should include any person who has made a complaint to any of the persons referred to in paragraphs 45.35(1)(a), (b), or (c) of the Act, i.e. who has taken any of the steps there described to initiate a complaint, whether or not the complaint was made before the coming into force of Part VII of the Act. The Commission argues, referring to section 12 of the Interpretation Act, supra, that:
This interpretation is warranted ... if it is the opinion of this Honourable Court that Part VII of the Act operates retrospec tively so as to apply to complaints arising from conduct alleged to have occurred prior to the coming into force of Part VII, because the language of subsection 45.41(1) contemplates its immediate effect upon proclamation. Further, such an interpre tation would be most likely to facilitate the achievement of the purposes of Parts VI and VII.
(Memorandum of fact and law on behalf of the Commission, page 17.)
For the Commission it is urged that where a public complaint was communicated to the RCMP prior to the coming into force of subsection 45.35(1), then when the complaint is brought to the Commission it may deal with the matter as an original complaint under subsection 45.35 of the Act. To hold otherwise, the Commission submits, would be to frustrate the purposes of Parts VI and VII by denying access to the Commission to com plainants on the basis that they had taken steps, which were entirely appropriate, to bring their complaints to the attention of the RCMP. The significance of this issue relates to procedures the Commission might adopt in relation to complaints originally presented to the RCMP before Part VII was in force and subsequently referred to the Commission by the complainant.
As noted, counsel for the Attorney General sug gested that this issue is really an aspect of the larger issue of the retrospective application of Part VII. Nonetheless, the Attorney General argues:
A complaint under subsection 45.35(1) of the Act must logical ly mean a complaint made in accordance with that subsection and therefore made after September 30, 1988. Any other interpretation does violence to the plain wording of the statute.
and further,
Section 45.41 contemplates the reference of a complaint to the Commission by "a complainant under subsection 45.35(1) who is not satisfied with the disposition of the complaint by the Force or with a direction under subsection 45.36(5) ...". It is trite to say that a complaint made before the coming into force of Part VII will not have been dealt with in accordance with Part VII...
(Memorandum of fact and law of the Attorney General of Canada, page 16.)
Counsel for the Attorney General argues that this interpretation of sections 45.35(1) and 45.41 simply underlines the argument that Part VII should not be applied retrospectively to include complaints about conduct which occurred before Part VII was in force. If that argument were persuasive, one would have to go another step to conclude that a 'complaint made prior to the coming into force of subsection 45.35(1) and thereafter referred to the Commission by a com plainant may not be dealt with by the Commission as an original complaint under subsection 45.35 of the Act. In light of my conclusion about the purposes, and the intention of the Act, that second step would frustrate the purposes of Parts VI and VII.
There is an interpretation of the words "a com plainant under subsection 45.35(1)" as used in subsection 45.41(1), not referred to by counsel. That is, that the words are used to distinguish the complainant when the matter is initiated by a member of the public, from the complainant when the matter is initiated by the Chairman of the Commission, a process provided by subsection 45.37(1). That subsection also provides in a case where the Chairman initiates a complaint that "unless the context otherwise requires, a reference hereafter in this Part to a complainant includes a reference to the Commission Chairman". Similar words to those here in question are used in other
subsections: thus, in 45.36(5) and 45.4(d) the words "a complaint under subsection 45.35(1)" are used and in 45.42(2), 45.44(1) and 45.45(15) the words "in the case of a complaint under sub section 45.35(1), the complainant" are used. These uses seem to me to have no reference to the fact that the "complainant" or the "complaint" referred to is one that was made after subsection 45.35(1) came into force. Rather, these uses of the words clearly distinguish a complaint initiated by a complainant who is a member of the public and whose complaint is initiated by the processes described in subsection 45.35(1) from a complaint where the complainant is the Chairman of the Commission acting under subsection 45.37(1).
Having determined already that Parts VI and VII of the Royal Canadian Mounted Police Act have a retrospective application, I am of the opin ion that the interpretation of the phrase "a com plainant under subsection 45.35(1)" as used in subsection 45.41(1) which should be adopted is the one which is the most likely to facilitate the objec tive of the Act. Thus, any complainant taking the steps to initiate a complaint which that subsection describes, whether those steps be before or after subsection 45.35(1) was in force, may if dissatis fied with RCMP handling of his or her complaint, refer the matter to the Commission. I place reli ance, in this regard, on section 12 of the Interpre tation Act.
All of the sixty-three complainants, whose com plaints were said to have been referred to the Commission, here exemplified by those in catego ries A and B and by complaint C-1, and any others in similar circumstances, will have taken the action described in paragraphs 45.35(1)(b) or (c) prior to the proclamation of Part VII. In my view, each of them qualifies as a "complainant under subsection 45.35(1)" within the meaning of subsection 45.41(1).
I turn, finally, to the last main issue raised by this stated case, that of the Commission's jurisdic tion in circumstances of prejudicial delay.
4. The jurisdiction of the Commission in circum stances of prejudicial delay
The Commission submits that where discretion is conferred by statute, as it is in this case upon the Commission Chairman, as to whether to investi gate or initiate a hearing in respect of a case, the person or body upon whom the discretion has been conferred has implicit jurisdiction to decline to deal with the case if, due to the passage of time, proceeding with the case will prejudice the persons to be affected thereby or the investigation to be conducted. The Attorney General agrees with the Commission's position with respect to this issue.
I have been referred to authorities in support of the position taken by the parties. In Re Dhanota and International Union United Automobile, Aerospace and Agriculture Implement Workers of America (U.A.W.), Local 1285; Sheller-Globe of Canada Ltd., Intervenor (1983), 42 O.R. (2d) 73 (Div. Ct.), the Court was called upon to consider whether the Labour Relations Act [R.S.O. 1980, c. 228] of Ontario conferred discretion whether to inquire into a complaint through words that pro vided "the Board may inquire into the complaint of a contravention of this Act". Osler J. concluded that discretion had been conferred by the statute, and said (at page 76):
The board has the right to lay down its own procedure. It decided, in this case, to commence with an investigation of the delay in filing the complaint and the reasons therefor. In so doing, it was exercising the discretion that we have found is given to it under s. 89(4). We see no lack of natural justice or even of fairness in the procedure it adopted and, that being so, this court should not interfere.
I note that under Part VI of the Royal Canadian Mounted Police Act, section 45.33, the RCMP Public Complaints Commission, subject to the Act, may make rules respecting, inter alia, "the manner of dealing with matters ... before the Commission generally" and "the performance of the duties and functions of the Commission under this Act generally".
In Re Commercial Union Assurance et al. and Ontario Human Rights Commission et al. (1987), 59 O.R. (2d) 481 (Div. Ct.), dealing with provi sions of the Ontario Human Rights Code [S.O. 1981, c. 53], which provided for reconsideration by the Commission of its earlier decision when requested by a complainant, Mr. Justice Gray found that it was not mandatory, but a matter of discretion for the Commission, that the reconsider ation requested be undertaken.
In discussion of this issue counsel tended to consider the discretionary authority of the Com mission or of its Chairman to be one and the same thing. In somewhat the same sense the questions raised in the stated case refer to the jurisdiction or discretion of the Commission. My reading of the legislation leads me to conclude that it provides for discrete duties, and discretion, for each of the Commission and its Chairman. I note this particu larly in view of section 45.32 of the Act, which provides:
45.32 (1) The Commission shall carry out such functions and duties as are assigned to it by this Act.
(2) The Commission Chairman shall carry out such func tions and duties as are assigned to the Commission Chairman by this Act.
Certain sections of Part VII of the Act impose upon the Commission or its Chairman mandatory duties. With respect to complaints initially to the Commission under paragraph 45.35(1)(a), these must be acknowledged (subsection 45.35(2)) and the Commissioner of the RCMP must be notified of every complaint so initiated (subsection 45.35(3)). The Chairman has an obligation under section 45.37 where he initiates a complaint, and where a complaint is referred to the Commission under section 45.41, to notify the Commissioner.
Where complaints are referred to the Commis sion, under subsection 45.41(1) by a member of the public who is not satisfied with disposition of the complaint by the RCMP, then under section 45.42:
45.42 (1) The Commission Chairman shall review every complaint referred to the Commission pursuant to subsection 45.41(1) or initiated under 45.37(1) unless the Commission Chairman has previously investigated, or instituted a hearing to inquire into, the complaint under section 45.43.
The balance of section 45.42 provides procedures for the Commission Chairman, after reviewing a complaint, to dispose of it if he or she is satisfied with earlier disposition of the complaint by the RCMP, or if not satisfied with that disposition, to make recommendations to the Commissioner, to request a further investigation by the Commission er, to investigate the matter further or to institute a hearing to inquire into the complaint.
This section seems to indicate clearly that the Chairman, not the Commission, has an obligation. He or she "shall review every complaint referred to the . Commission pursuant to subsection 45.41(1)" at least so far as to conclude that dispo sition of the complaint by the RCMP is satisfacto ry, or unsatisfactory. If the latter is the case the Chairman may then request or undertake further steps in relation to the complaint.
Where there has been such delay in referring a complaint to the Commission that its investigation or review would likely be prejudiced, or parties concerned in regard to the complaint would be prejudiced, or any other unfairness would result, that surely would be a factor to be considered by the Chairman in reaching a conclusion whether in all the circumstances, disposition of the complaint by the RCMP is satisfactory. In that determina tion the Chairman clearly has discretion. For example, if the conduct complained of would be akin to that raising issues of civil liability, statutes of limitations may suggest time periods for consid ering past conduct. But, if the conduct complained of would be criminal in nature it is relevant to keep in mind that no limitation period would by itself preclude possible prosecution. These consider ations, and others may be relevant in a given case in the determination by the Chairman whether he or she is satisfied or dissatisfied with disposition of the complaint by the RCMP.
Finally, it may be trite to add that in relation to the initiation of a complaint pursuant to section 45.37 by the Chairman, there can be no question
that such a step is completely within the Chair- man's discretion.
Conclusion
For the reasons stated, my answers to the ques tions asked in the stated case distinguish between duties, and discretion, vested in the Commission and in the Commission Chairman. The questions and the answers to them are as follows.
Question 1—Does the Commission, in connection with Part 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 complaints numbered "A-l", "A-2" and "A-3", respectively, described in Schedule "A" to the attached agreed statement of facts, having regard to the fact that:
(a) the original conduct complained of in complaints "A-1", "A-2" and "A-3", respectively, allegedly occurred prior to September 30, 1988 but on or after December 18, 1986, that is, prior to the proclamation of Part VII of the Act but on or after the proclamation of Part VI of the Act; and
(b) the original complaint made by the complainant in each of complaints "A-1", "A-2" and "A-3", respectively, was not made in the first instance at a time when subsection 45.35(1) of the Act was in force.
Answer to Question 1
Yes, the Commission has jurisdiction to consider these complaints if the Commission Chairman decides, pursuant to subsection 45.44(1), to insti tute a hearing to inquire into these complaints.
Until that decision by the Commission Chairman complaints referred to the Commission are matters for consideration of the Chairman in accord with duties assigned to the Chairman under the Act (sections 45.32(2), 45.41(2)(a) and 45.42).
Question 2—Does the Commission, in connection with Part VII of the Act, have jurisdiction to entertain complaint numbered "B-1" described in Schedule "B" to the attached agreed state ment of facts, having regard to the fact that:
(a) the original conduct complained of in Complaint "B-1" allegedly occurred prior to December 18, 1986 but on or after March 26, 1986, that is, prior to proclamation of either of Parts VII or VI of the Act, but on or after the date upon which the Act received Royal Assent; and
(b) the original complaint made by the complainant in com plaint "B-1" was not made in the first instance at a time when subsection 45.35(1) of the Act was in force.
Answer to Question 2
Yes, the Commission has jurisdiction to consider, this complaint in the same circumstances as are outlined in the answer to Question 1.
Question 3—Does the Commission, in connection with Part VII of the Act, have jurisdiction to entertain complaint numbered
"C-1" as described in Schedule "C" to the attached agreed statement of facts, having regard to the fact that:
(a) the original conduct complained of in complaint "C-1" allegedly occurred prior to March 26, 1986, that is, prior to the proclamation of either of Parts VII or VI of the Act and prior to the date upon which the Act received Royal Assent; and
(b) the original complaint made by the complainant in com plaint "C-1" was not made in the first instance at a time when subsection 45.35(1) of the Act was in force.
Answer to Question 3
Yes, the Commission has jurisdiction to consider this complaint in the same circumstances as are outlined in the answer to Question 1.
Question 4—Does the Commission, in connection with Part VII of the Act, have jurisdiction to entertain complaint numbered
"C-2" as described in Schedule "C" to the attached agreed statement of facts, having regard to the fact that the conduct complained of in complaint "C-2" allegedly occurred prior to March 26, 1986, that is, prior to the proclamation of either of Parts VII or VI of the Act and prior to the date upon which the Act received Royal Assent?
Answer to Question 4
Assuming the complaint was initiated by being made to the Commission in accord with paragraph 45.35(1)(a), then
(a) the complaint shall be acknowledged (sub- section 45.35(2));
(b) the Commissioner of the RCMP shall be notified of the complaint (subsection 45.35(3)); and
(c) the Commission may not "entertain" the complaint further unless. the Chairman of the Commission, pursuant to subsection 45.44(1), decides to institute a hearing to inquire into this complaint.
Question 5—If the answer to question 3 above is in the affirmative, does the Commission have jurisdiction, in relation to complaint numbered "C-1":
(a) to decline to entertain the complaint at all;
(b) to decline to investigate the complaint; or
(c) to decline to •hold a hearing to inquire into the complaint
if it appears to the Commission that a period of time between the date upon which the conduct complained of is alleged to have occurred and the date upon which complaint numbered "C-1" was referred to the Commission has elapsed which, in the opinion of the Commission, is likely to prejudice the review of complaint numbered "C-1" or the person whose conduct is complained of in complaint numbered "C-1"?
Answer to Question 5
No, the Commission does not have jurisdiction or discretion to make any of the decisions here suggested.
The Chairman of the Commission has preliminary' duties under the Act:
— to furnish the Commissioner with a copy of the complaint (paragraph 45.41(2)(a)),
— to review the complaint (subsection 45.42(1)),
—to determine whether he or she is satisfied or dissatisfied with the disposition of the complaint by the RCMP (subsections 45.42(2) and (3)).
In that determination where the delay or lapse of time, from the date of the conduct giving rise to the complaint until the date of referral to the Commission, is likely to prejudice review of the complaint or the parties concerned with the complaint, or is otherwise likely to lead to unfairness, this may be a factor among circum stances considered by the Chairman• in his or her decision.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.