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.