A-336-90
Attorney General of Canada (Appellant)
v.
Royal Canadian Mounted Police Public Com
plaints Commission (Respondent)
INDEXED AS: ROYAL CANADIAN MOUNTED POLICE ACT
(CAN.) (RE) (CA.)
Court of Appeal, Urie, MacGuigan and Linden
JJ.A.—Toronto, November 27, 28; Ottawa,
December 18, 1990.
Construction of statutes — Royal Canadian Mounted Police
Act, Parts VI, establishing RCMP Public Complaints Com
mission, and VII, creating statutory scheme for investigation
of complaints — Appeal from trial judgment holding Parts VI
and VII retrospective as enacted to protect public and within
exception to presumption against retrospectivity set out by
S.C.C. in Brosseau v. Alberta Securities Commission
Meaning of "retroactive" and "retrospective" Brosseau
distinguished — Limited exception to presumption where (I)
statutory disqualification (2) based on past conduct (3)
demonstrating continuing unfitness for privilege Not appli
cable here as no continuing unfitness Mischief and remedies
legislation aimed at: exposure, punishment of wrongdoing by
Force members and non-members and their protection against
unfounded allegations — Parts VI , VII prospective Legis
lation not escaping presumption as merely procedural — That
Parts coming into force on different dates not significant
Executive, not Parliament, responsible for proclamation.
RCMP Royal Canadian Mounted Police Act, Parts VI,
establishing RCMP Public Complaints Commission, and VII,
creating statutory scheme for investigation of public com
plaints — Appeal from stated case raising questions as to
Commission's jurisdiction to entertain complaints based on
events occurring prior to coming into force of Parts VI and VII
— Parts VI and VII not retrospective — Intended to protect
public by exposure and punishment of wrongdoers and to
protect Force members from unfounded allegations Part
VII imposing new disabilities and duties — New group (non-
members) included in coverage — Not merely procedural as
public scrutiny legislated for first time.
This was an appeal from the trial judgment upon a stated
case holding that the new Parts VI and V11 of the Royal
Canadian Mounted Police Act were retrospective. Part VI,
which was proclaimed in force December 18, 1986, established
the RCMP Public Complaints Commission. Part VII was
proclaimed in force September 30, 1988 and set out the statu
tory scheme for the investigation of public complaints about the
conduct of Force members. Prior to the amending Act, there
was only an internal review procedure established by adminis
trative act of the Commissioner. The stated case raised ques
tions as to the jurisdiction of the Commission to entertain
complaints based upon facts occurring at various times prior to
the coming into force of Parts VI, VII and the amending Act
itself (assented to March 26, 1986). After finding that the
amendments were not purely procedural, the Trial Judge
applied Brosseau v. Alberta Securities Commission, [1989] 1
S.C.R. 301, which recognized an exception to the general rule
that statutes are prima facie prospective, applicable to enact
ments whose object is not to punish offenders but to protect the
public, even though they may incidentally impose a penalty on
a person related to a past event. MacKay J. concluded that as
Parts VI and VII were enacted primarily to protect the public,
and that any effect upon vested rights was subordinate to the
public protection intended, the presumption against retrospec-
tivity was rebutted. He found these conclusions supported by
the necessary implication of the statute. The respondent sup
ported the Trial Judge's reasoning with respect to his interpre
tation of Brosseau as establishing a public-interest exception to
the presumption against retrospectivity, but contended that
Parts VI and VII merely created a new procedure for the
investigation of public complaints and that, as procedural legis
lation, the presumption against retrospective application of
statutes did not apply. It argued that the absence of powers
allowing the Commission to impose sanctions of any kind upon
RCMP personnel showed the non-punitive and merely proce
dural character of Part VII. The appellant supported the Trial
Judge's holding that Parts VI and VII were not merely proce
dural, but sought to limit his public-interest exception to the
presumption against retrospectivity. The issues were whether
Brosseau had been correctly interpreted and whether Parts VI
and VII were merely procedural.
Held, the appeal should be allowed.
The Act is not retrospective, but prospective. The various
dates referred to in the questions and complaints in the stated
case were all before the operative time of the statute.
Since L'Heureux-Dubé J. in dealing with the retrospectivity
question in Brosseau relied upon Driedger's work, Construction
of Statutes, that author's analysis of "External Sources of
Parliamentary Intent" and his subtle distinction between
retroactivity and retrospectivity had to be scrutinized. A
retroactive statute operates backwards, i.e. is operative as of a
time prior to its enactment, either by being deemed to have
come into force at a time prior to its enactment (e.g., budgetary
measures) or by being expressed to be operative with respect to
past transactions as of a past time (e.g., acts of indemnity). A
retrospective statute changes the law only for the future but
looks backward by attaching new consequences to completed
transactions. It opens up closed transactions and changes their
consequences as of the future. A statute can be both retroactive
and retrospective. The statute herein is not retroactive, though
arguably retrospective.
In Driedger's analysis, the presumption against retrospectivi-
ty needs to be distinguished from that against vested rights.
The former is prima facie and applies unless it is rebutted,
unlike the latter which may be invoked only when a statute is
reasonably susceptible of two meanings. Impairment of existing
rights is a frequently intended consequence of statutes and
therefore the presumption against non-interference with vested
rights applies only in the case of ambiguity in the statutory
language, i.e. one looks first to the statute, and then to the
presumption only if the intent is unclear. He concluded that
there are three kinds of retrospective statutes, the last of which
imposed a penalty on a person who is described by reference to
a prior event, but the penalty was not intended as further
punishment for the event. This did not attract the presumption
against retrospectivity. L'Heureux-Dubé J. delineated a sub-
category thereof: 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 but to protect the public. She then
returned to Driedger for the statement that if the intent is to
punish, the presumption applies, but if the punishment is
intended to protect the public, the presumption does not apply.
What this meant was that there is an exception to the presump
tion against retrospectivity where there is (1) a statutory
disqualification, (2) based on past conduct, (3) which demon
strates a continuing unfitness for the privilege in question. This
narrow exception to the general presumption was much more
limited in scope than the Trial Judge's holding that an excep
tion occurs whenever the statutory purpose may be conceptual
ized in broad terms as the protection of the public, whatever
may be the effect upon the subordinate value of vested rights or
interests. The actual holding of Brosseau had no application
herein since there is no question of continuing unfitness.
There cannot be any public-interest or public-protection
exception, writ large, to the presumption against retrospectivity
because every statute can be said to be in the public interest or
for the public protection. No Parliament ever deliberately
legislates against the public interest but always visualizes its
legislative innovations as being for the public good. If there is a
public-interest exception it must be reducible to a matter of
legislative intent (whether Parliament intended prospectivity or
retrospectivity) whether derived from a presumption or from
the statute itself.
Looking to the mischief it was designed to meet, and by
analysing the provisions of the amending Act, particularly in
relation to the antecedent Act, the legislation was intended to
protect the public, by exposure and punishment of wrongdoers,
and RCMP members and non-members from unsupported
accusations. Part VII imposed new disabilities (as to reputation
and discipline) and new duties (as to responding to complaints)
on RCMP personnel, one of the purposes of which was punish
ment where fault was found. The inclusion of a whole new
group in the coverage of possible disciplinary proceedings (non-
members) and Parliament's extreme care in delineating protec
tions for those complained against establish not only that it did
not intend retrospective operation, but that it intended only
prospective operation.
The presumption against retrospectivity does not apply to
procedural legislation. The test for procedural legislation was
established by La Forest J. in Angus v. Sun Alliance Insurance
Co.: normally, rules of procedure do not affect the content or
existence of an action or defence, but only the manner of its
enforcement or use. Applying this test, the legislation at issue
was not procedural. What was legislated was not just a manner
of scrutiny, but the very existence of public scrutiny for the first
time.
That the legislation came into force at different times with
varying effects did not imply that Parliament intended any part
of the Act to have retrospective effect. Proclamation is an
executive act. The coming into force of legislation does not
depend upon Parliament, but upon the executive. Parliament
may have intended that the various parts of the amending Act
should all come into force at the same time.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 17.
Inquiries Act, R.S.C., 1985, c. I-11.
Public Service Employment Act, R.S.C., 1985, c. P-33.
Royal Canadian Mounted Police Act, R.S.C., 1985, c.
R-10, ss. 2, 5, 10, 25, 26, Parts VI (as enacted by
R.S.C., 1985 (2nd Supp.), c. 8, s. 16), VII (as enacted
idem).
CASES JUDICIALLY CONSIDERED
APPLIED:
In re Athlumney, Ex parte Wilson, [1898] 2 Q.B. 547;
Nova, An Alberta Corporation v. Amoco Canada
Petroleum Co. Ltd. et al., [1981] 2 S.C.R. 437; (1981),
32 A.R. 613; 128 D.L.R. (3d) 1; [1981] 6 W.W.R. 391;
38 N.R. 381; Quebec (Attorney General) v. Healey,
[1987] 1 S.C.R. 158; (1987), 6 O.A.C. 56; 73 N.R. 288;
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.
DISTINGUISHED:
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; Latif v. Canadian Human
Rights Commission, [1980] 1 F.C. 687; (1979), 105
D.L.R. (3d) 609; 79 CLLC 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.); R v Secretary of State for
Trade and Industry, ex p R, [1989] 1 All ER 647
(Q.B.D.); Wildman v. The Queen, [1984] 2 S.C.R. 311;
(1984), 12 D.L.R. (4th) 641; 14 C.C.C. (3d) 321; 55
N.R. 27; 5 O.A.C. 241.
REVERSED:
Royal Canadian Mounted Police Act (Can.) (Re),
[1990] 2 F.C. 750 (T.D.).
CONSIDERED:
Gustayson Drilling (1964) Ltd. v. Minister of National
Revenue, [1977] 1 S.C.R. 271; (1975), 66 D.L.R. (3d)
449; [1976] CTC 1; 75 DTC 5451; 75 N.R. 401; Attor
ney General of Quebec v. Expropriation Tribunal et al.,
[1986] 1 S.C.R. 732; (1986), 66 N.R. 380; Upper
Canada College v. Smith (1920), 61 S.C.R. 413; 57
D.L.R. 648; [1921] 1 W.W.R. 1154; Acme Village
School District (Board of Trustees of) v. Steele-Smith,
[1933] S.C.R. 47; Snider v. Edmonton Sun et al. (1988),
93 A.R. 26; 55 D.L.R. (4th) 211; 63 Alta. L.R. (2d) 289
(C.A.); Reg. v. Vine (1875), 10 L.R.Q.B. 195; Re A
Solicitor's Clerk, [1957] 3 All E.R. 617 (Q.B.D.); Barry
and Brosseau v. Alberta Securities Commission
(1986), 67 A.R. 222; 25 D.L.R. (4th) 730; 24 C.R.R. 9
(CA.).
REFERRED TO:
Martineau et al. v. Matsqui Institution Inmate Discipli
nary Board, [1978] 1 S.C.R. 118; (1977), 74 D.L.R. (3d)
1; 33 C.C.C. (2d) 366; 14 N.R. 285.
AUTHORS CITED
Canada. House of Commons Debates, Vol. V, 1st Sess.,
33rd Parl., 34 Eliz. II, 1985.
Canada. Report of the Commission of Inquiry Relating
to Public Complaints, Internal Discipline and Griev
ance Procedure within the Royal Canadian Mounted
Police, Ottawa: Information Canada, 1976, (The
Marin Commission Report).
Coté, Pierre-André The Interpretation of Legislation in
Canada, Cowansville, Qué.: Editions Yvon Blais Inc.,
1984.
Driedger, Elmer A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
Driedger, Elmer A. "Statutes: Retroactive, Retrospective
Reflections" (1978), 56 Can. Bar Rev. 264.
Maxwell on the Interpretation of Statutes, 12th ed. by P.
St. J. Langan, London: Sweet & Maxwell Ltd., 1969.
COUNSEL:
Barbara A. Mcisaac, Q.C. for appellant.
Eleanore A. Cronk and Peter A. Downard for
respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Fasken, Campbell, Godfrey, Toronto, for
respondent.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.A.: This is an appeal from a
judgment of MacKay J. of April 9, 1990 [[1990] 2
F.C. 750], upon a special case stated by the parties
for the opinion of the Trial Division pursuant to
paragraph 17(3)(b) of the Federal Court Act,
R.S.C., 1985, c. F-7, as to the retrospectivity of
new Parts VI and VII of the Royal Canadian
Mounted Police Act, R.S.C., 1985, c. R-10 ("the
Act"), which were introduced by an amending Act
assented to March 26, 1986, S.C. 1986, c. 11
[R.S.C., 1985 (2nd Supp.), c. 8, s. 16] ("the
amending Act"). Part VI of the Act merely estab
lished the Royal Canadian Mounted Police Public.
Complaints Commission ("the Commission"), the
respondent herein. Part VII is the operative part of
the public complaints process. By it the Commis
sion was authorized to entertain complaints by
members of the public concerning the conduct, in
the performance of any duty or function under the
Act, of any member of the Royal Canadian
Mounted Police ("the RCMP") or any other
person appointed or employed under the authority
of the Act.
Part VI was proclaimed in force as of December
18, 1986; Part VII as of September 30, 1988.
The stated case raised specific questions as to
the jurisdiction of the Commission to entertain
certain complaints concerning the conduct of
members or employees of the RCMP based upon
facts alleged to have occurred at various times
prior to the coming into force of Part VII, Part VI
and the amending Act itself respectively.
In the agreed statement of facts, the six stated
complaints were divided into three categories (A,
B and C) representing the three general situations
which gave rise to the retrospectivity issue.
In each of the three category A complaints the
conduct complained of allegedly occurred before
the date of proclamation of Part VII but after the
date of proclamation of Part VI. As well, com
plaint A-2 had been disposed of under the old
RCMP Act prior to the proclamation of Part VII.
In the one complaint in the B category the
conduct complained of allegedly occurred before
the date of proclamation of Part VI, but after the
date of royal assent to the amending Act. The
complaint had also been disposed of under the old
Act before the proclamation of Part VII.
In the two category C complaints the conduct
complained of allegedly occurred before the date
of royal assent to the amending Act. In complaint
C-1 the complainant had previously complained to
the RCMP and was informed by it after the
proclamation of Part VII that the Force would
take no further steps with respect to his complaint.
Since in my view the details of the complaints
are not relevant to the decision to be reached, I set
them out only in an Appendix.
The relevant sections of the Act are as follows:
2. (1) In this Act,
"Commission" means the Royal Canadian Mounted Police
Public Complaints Commission established by section 45.29;
"Commission Chairman" means the Chairman of the
Commission;
"Commissioner" means the Commissioner of the Royal
Canadian Mounted Police;
"Force" means the Royal Canadian Mounted Police;
Commissioner
5. (1) The Governor in Council may appoint an officer, to
be known as the Commissioner of the Royal Canadian Mount
ed Police, who, under the direction of the Minister, has the
control and management of the Force and all matters connect
ed therewith.
PART VI
ROYAL CANADIAN MOUNTED
POLICE PUBLIC COMPLAINTS
COMMISSION
Establishment and Organization of Commission
45.29 (1) There is hereby established a commission, to be
known as the Royal Canadian Mounted Police Public Com
plaints Commission, consisting of a Chairman, a Vice-Chair
man, a member for each contracting province and not more
than three other members, to be appointed by order of the
Governor in Council.
(6) No member of the Force is eligible to be appointed or to
continue as a member of the Commission.
45.3 (1) The Commission Chairman is the chief executive
officer of the Commission and has supervision over and direc
tion of the work and staff of the Commission.
Annual Report
45.34 The Commission Chairman shall, within three months
after the end of each fiscal year, submit to the Minister a report
of the activities of the Commission during that year and its
recommendations, if any, and the Minister shall cause a copy of
the report to be laid before each House of Parliament on any of
the first fifteen days on which that House is sitting after the
day the Minister receives it.
PART VII
PUBLIC COMPLAINTS
Receipt and Investigation of Complaints
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
(c) 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.
(2) Every complaint under subsection (1) shall be acknowl
edged in writing, if the complaint is in writing or if the
complainant requests that the complaint be so acknowledged.
(3) The Commissioner shall be notified of every complaint
under subsection (1).
(4) Forthwith after being notified of a complaint under
subsection (3), the Commissioner shall notify in writing the
member or other person whose conduct is the subject-matter of
the complaint of the substance of the complaint unless, in the
Commissioner's opinion, to do so might adversely affect or
hinder any investigation that is being or may be carried out in
respect of the complaint.
45.36 (I) The Commissioner shall consider whether a com
plaint under subsection 45.35(1) can be disposed of informally
and, with the consent of the complainant and the member or
other person whose conduct is the subject-matter of the com
plaint, may attempt to so dispose of the complaint.
(2) No answer or statement made, in the course of attempt
ing to dispose of a complaint informally, by the complainant or
the member or other person whose conduct is the subject-
matter of the complaint shall be used or receivable in any
criminal, civil or administrative proceedings other than, where
the answer or statement was made by a member, a hearing
under section 45.1 into an allegation that with intent to mislead
the member gave the answer or statement knowing it to be
false.
(3) Where a complaint is disposed of informally, a record
shall be made of the manner in which the complaint was
disposed of, the complainant's agreement to the disposition
shall be signified in writing by the complainant and the
member or other person whose conduct is the subject-matter of
the complaint shall be informed of the disposition.
(4) Where a complaint is not disposed of informally, the
complaint shall be investigated by the Force in accordance with
rules made pursuant to section 45.38.
(5) Notwithstanding any other provision of this Part, the
Commissioner may direct that no investigation of a complaint
under subsection 45.35(1) be commenced or that an investiga
tion of such a complaint be terminated if, in the Commission
er's opinion,
(a) the complaint is one that could more appropriately be
dealt with, initially or completely, according to a procedure
provided under any other Act of Parliament;
(b) the complaint is trivial, frivolous, vexatious or made in
bad faith; or
(c) having regard to all the circumstances, investigation or
further investigation is not necessary or reasonably
practicable.
(6) Where the Commissioner makes a direction in respect of
a complaint pursuant to subsection (5), the Commissioner shall
give notice in writing to the complainant and, if the member or
other person whose conduct is the subject-matter of the com
plaint has been notified under subsection 45.35(4), to that
member or other person, of the direction and the reasons
therefor and the right of the complainant to refer the complaint
to the Commission for review if the complainant is not satisfied
with the direction.
45.37 (1) Where the Commission Chairman is satisfied that
there are reasonable grounds to investigate 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, the Commission Chairman may initiate a
complaint in relation thereto and where the Commission Chair
man does so, unless the context otherwise requires, a reference
hereafter in this Part to a complainant includes a reference to
the Commission Chairman.
(2) The Commission Chairman shall notify the Minister and
the Commissioner of any complaint initiated under subsection
(1).
(3) Forthwith after being notified of a complaint under
subsection (2), the Commissioner shall notify in writing the
member or other person whose conduct is the subject-matter of
the complaint of the substance of the complaint unless, in the
Commissioner's opinion, to do so might adversely affect or
hinder any investigation that is being or may be carried out in
respect of the complaint.
(4) A complaint under subsection (1) shall be investigated
by the Force in accordance with rules made pursuant to section
45.38.
45.38 The Commissioner may make rules governing the
procedures to be followed by the Force in notifying persons
under this Part and investigating, disposing of or otherwise
dealing with complaints under this Part.
45.39 The Commissioner shall notify in writing the complai
nant and the member or other person whose conduct is the
subject-matter of the complaint of the status of the investiga
tion of the complaint to date not later than forty-five days after
being notified of the complaint and monthly thereafter during
the course of the investigation unless, in the Commissioner's
opinion, to do so might adversely affect or hinder any investiga
tion that is being or may be carried out in respect of the
complaint.
45.4 On completion of the investigation of a complaint, the
Commissioner shall send to the complainant and the member or
other person whose conduct is the subject-matter of the com
plaint a report setting out
(a) a summary of the complaint;
(b) the results of the investigation;
(c) a summary of any action that has been or will be taken
with respect to resolution of the complaint; and
(d) in the case of a complaint under subsection 45.35(1), the
right of the complainant to refer the complaint to the Com
mission for review if the complainant is not satisfied with the
disposition of the complaint by the Force.
Reference to Commission
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.
(2) Where a complainant refers a complaint to the Commis
sion pursuant to subsection (1),
(a) the Commission Chairman shall furnish the Commis
sioner with a copy of the complaint; and
(b) the Commissioner shall furnish the Commission Chair
man with the notice under subsection 45.36(6) or the report
under section 45.4 in respect of the complaint, as the case
may be, and such other materials under the control of the
Force as are relevant to the complaint.
45.42 (I) The Commission Chairman shall review every
complaint referred to the Commission pursuant to subsection
45.41(1) or initiated under subsection 45.37(1) unless the
Commission Chairman has previously investigated, or institut
ed a hearing to inquire into, the complaint under section 45.43.
(2) Where, after reviewing a complaint, the Commission
Chairman is satisfied with the disposition of the complaint by
the Force, the Commission Chairman shall prepare and send a
report in writing to that effect to the Minister, the Commission
er, the member or other person whose conduct is the subject-
matter of the complaint and, in the case of a complaint under
subsection 45.35(1), the complainant.
(3) Where, after reviewing a complaint, the Commission
Chairman is not satisfied with the disposition of the complaint
by the Force or considers that further inquiry is warranted, the
Commission Chairman may
(a) prepare and send to the Minister and the Commissioner
a report in writing setting out such findings and recommen
dations with respect to the complaint as the Commission
Chairman sees fit;
(b) request the Commissioner to conduct a further investiga
tion into the complaint; or
(c) investigate the complaint further or institute a hearing to
inquire into the complaint. •
45.43 (1) Where the Commission Chairman considers it
advisable in the public interest, the Commission Chairman may
investigate, or institute a hearing to inquire into, a complaint
concerning the conduct, in the performance of any duty or
function under this Act, of any member or other person
appointed or employed under the authority of this Act, whether
or not the complaint has been investigated, reported on or
otherwise dealt with by the Force under this Part.
(2) Notwithstanding any other provision of this Part, where
the Commission Chairman investigates, or institutes a hearing
to inquire into, a complaint pursuant to subsection (1), the
Force is not required to investigate, report on or otherwise deal
with the complaint before the report under subsection (3) or
the interim report under subsection 45.45(14) with respect to
the complaint has been received by the Commissioner.
(3) On completion of an investigation under paragraph
45.42(3)(c) or subsection (1), the Commission Chairman shall
prepare and send to the Minister and the Commissioner a
report in writing setting out such findings and recommenda
tions with respect to the complaint as the Commission Chair
man sees fit unless the Commission Chairman has instituted, or
intends to institute, a hearing to inquire into the complaint
under that paragraph or subsection.
45.44 (1) Where the Commission Chairman decides to
institute a hearing to inquire into a complaint pursuant to
subsection 45.42(3) or 45.43(1), the Commission Chairman
shall assign the member or members of the Commission to
conduct the hearing and send a notice in writing of the decision
to the Minister, the Commissioner, the member or other person
whose conduct is the subject-matter of the complaint and, in
the case of a complaint under subsection 45.35(1), the
complainant.
(2) Where a complaint that is to be the subject of a hearing
concerns conduct occurring in the course of providing services
pursuant to an arrangement entered into under section 20, the
member of the Commission appointed for the province in which
the conduct occurred shall be assigned, either alone or with
other members of the Commission, to conduct the hearing.
45.45 (1) For the purposes of this section, the member or
members conducting a hearing to inquire into a complaint are
deemed to be the Commission.
(2) The Commission shall serve a notice in writing of the
time and place appointed for a hearing on the parties.
(3) Where a party wishes to appear before the Commission,
the Commission shall sit at such place in Canada and at such
time as may be fixed by the Commission, having regard to the
convenience of the parties.
(4) The Commission has, in relation to the complaint before
it, the powers conferred on a board of inquiry, in relation to the
matter before it, by paragraphs 24.1(3)(a), (b) and (c).
(5) The parties and any other person who satisfies the
Commission that the person has a substantial and direct inter
est in a complaint before the Commission shall be afforded a
full and ample opportunity, in person or by counsel, to present
evidence, to cross-examine witnesses and to make representa
tions at the hearing.
(6) The Commission shall permit any person who gives
evidence at a hearing to be represented by counsel.
(7) In addition to the rights conferred by subsections (5) and
(6), the appropriate officer may be represented or assisted at a
hearing by any other member.
(8) Notwithstanding subsection (4), the Commission may
not receive or accept
(a) subject to subsection (9), any evidence or other informa
tion that would be inadmissible in a court of law by reason of
any privilege under the law of evidence;
(b) any answer or statement made in response to a question
described in subsection 24.1(7), 35(8), 40(2), 45.1(11) or
45.22(8);
(c) any answer or statement made in response to a question
described in subsection (9) in any hearing under this section
into any other complaint; or
(d) any answer or statement made in the course of attempt
ing to dispose of a complaint under section 45.36.
(9) In a hearing, no witness shall be excused from answering
any question relating to the complaint before the Commission
when required to do so by the Commission on the ground that
the answer to the question may tend to criminate the witness or
subject the witness to any proceeding or penalty.
(10) Where the witness is a member, no answer or statement
made in response to a question described in subsection (9) shall
be used or receivable against the witness in any hearing under
section 45.1 into an allegation of contravention of the Code of
Conduct by the witness, other than a hearing into an allegation
that with intent to mislead the witness gave the answer or
statement knowing it to be false.
(11) A hearing to inquire into a complaint shall be held in
public, except that the Commission may order the hearing or
any part of the hearing to be held in private if it is of the
opinion that during the course of the hearing any of the
following information will likely be disclosed, namely,
(a) information the disclosure of which could reasonably be
expected to be injurious to the defence of Canada or any
state allied or associated with Canada or the detection,
prevention or suppression of subversive or hostile activities;
(b) information the disclosure of which could reasonably be
expected to be injurious to law enforcement; and
(c) information respecting a person's financial or personal
affairs where that person's interest outweighs the public's
interest in the information.
(12) Any document or thing produced pursuant to this
section to the Commission shall, on the request of the person
producing the document or thing, be released to that person
within a reasonable time after completion of the final report
under subsection 45.46(3).
(13) Where the Commission sits at a place in Canada that is
not the ordinary place of residence of the member or other
person whose conduct is the subject-matter of the complaint, of
the complainant or of the counsel of that member or other
person or that complainant, that member or other person,
complainant or counsel is entitled, in the discretion of the
Commission, to receive such travel and living expenses incurred
by the member or other person, complainant or counsel in
appearing before the Commission as may be fixed by the
Treasury Board.
(14) On completion of a hearing, the Commission shall
prepare and send to the Minister and the Commissioner a
report in writing setting out such findings and recommenda
tions with respect to the complaint as the Commission sees fit.
(15) In this section and section 45.46, "parties" means the
appropriate officer, the member or other person whose conduct
is the subject-matter of a complaint and, in the case of a
complaint under subsection 45.35(1), the complainant.
45.46 (I) On receipt of a report under subsection 45.42(3),
45.43(3) or 45.45(14), the Commissioner shall review the
complaint in light of the findings and recommendations set out
in the report.
(2) After reviewing a complaint in accordance with subsec
tion (1), the Commissioner shall notify the Minister and the
Commission Chairman in writing of any further action that has
been or will be taken with respect to the complaint, and where
the Commissioner decides not to act on any findings or recom
mendations set out in the report, the Commissioner shall
include in the notice the reasons for not so acting.
(3) After considering a notice under subsection (2), the
Commission Chairman shall prepare and send to the Minister,
the Commissioner and the parties a final report in writing
setting out such findings and recommendations with respect to
the complaint as the Commission Chairman sees fit.
45.47 The Commissioner shall
(a) establish and maintain a record of all complaints
received by the Force under this Part; and
(b) on request, make available to the Commission any infor
mation contained in the record.
The Trial Judge looked to the authorities for the
general principles on retrospective operation of
statutes. He recited the general rule that statutes
are prima facie prospective, and considered the
exception that the presumption against retrospec-
tivity does not apply to legislation concerned
merely with matters of procedure or of evidence.
On this he held as follows (at pages 769-770):
1 am of the opinion that the provisions introduced 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 provisions
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 introduced 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 independ
ent 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 com
plaints 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 com
plaints 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 submissions of
counsel for the Commission, that Parts VI and VII of the Act
establish only a new procedure for the investigation of public
complaints against members of the RCMP. The exemption
from the general presumption against retrospectivity afforded
procedural legislation does not, therefore, assist greatly in
construing the intent and purposes of the legislation here in
question.
In turning next to the question whether the Act
in the case at bar fell under any other exception to
the general presumption against retrospectivity,
MacKay J. looked closely at the recent Supreme
Court decision in Brosseau v. Alberta Securities
Commission, [1989] 1 S.C.R. 301, a case which
dealt in part with whether action taken by the
Alberta Securities Commission under a revised
Securities Act [S.A. 1981, c. S-6.1] attracted the
presumption against retrospectivity. L'Heureux-
Dubé J. for the Court recognized an exception to
the general rule in the case of enactments whose
object is not to punish offenders but to protect the
public, even though such enactments may inciden
tally impose a penalty on a person related to a past
event. She concluded (at page 321):
The provisions in question are designed to disqualify from
trading in securities those persons whom the Commission finds
to have committed acts which call into question their business
integrity. This is a measure designed to protect the public, and
it is in keeping with the general regulatory role of the Commis
sion. Since the amendment at issue here is designed to protect
the public, the presumption against the retrospective effect of
statutes is effectively rebutted.
In the view of the Trial Judge, Brosseau was
directly on point and he therefore concluded (at
pages 774-775):
I am prepared to conclude that Parts VI and VII in the
amendments to the Act were enacted with the primary objec
tive of protecting the public and the RCMP itself from the risk
of an apprehension of or actual bias in dealing with complaints
about police conduct. Prior to these amendments, the RCMP
itself was functioning as the sole arbiter of complaints made
against it. The opportunity for independent and open review by
the Commission 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 presumption against retrospective application of
Part VII, to conduct occurring before its proclamation in force,
is rebutted.
The Trial Judge found this conclusion also sup
ported by the necessary implication of the statute.
He stated (at page 778):
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 interests, 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
submission to the Commission, or referred to the Commission,
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.
On the question of how far back the retrospec
tive application of Parts VI and VII may reach, he
concluded (at pages 779-780):
find that having concluded that Parts VI and VII have a
retrospective application based on the principle that the pre
sumption against retrospectivity was rebutted by the provisions'
objective of protection of the public, and that this objective or
purpose implies an intention that the legislation have retrospec
tive 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 applica
tion should be limited.
In the same vein the Trial Judge held that, since
Parts VI and VII have retrospective application, a
"complainant" under subsection 45.35(1), as
referred to by subsection 45.41 (1), must refer to
any person having made a complaint to RCMP or
provincial authorities, at whatever time made (at
page 783):
Having determined already that Parts VI and VII of the
Royal Canadian Mounted Police Act have a retrospective
application, I am of the opinion that the interpretation of the
phrase "a complainant 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 objective 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 dissatisfied with
RCMP handling of his or her complaint, refer the matter to the
Commission. I place reliance, in this regard, on section 12 of
the Interpretation Act.
Finally, with respect to the statutory discretion
as to whether to investigate or initiate a hearing,
both parties submitted that the person or body
upon whom discretion has been conferred has
implicit jurisdiction to decline to deal with the case
if, due to the passage of time, proceeding with it
would prejudice the persons to be affected thereby
or the investigation to be conducted. The Trial
Judge held that it is the Chairman, not the Com-
mission itself, who has the ultimate obligation as
to complaints, and that his discretion is a broad
one (at pages 786-787):
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, disposi
tion of the complaint by the RCMP is satisfactory. In that
determination the Chairman clearly has discretion. For exam
ple, if the conduct complained of would be akin to that raising
issues of civil liability, statutes of limitations may suggest time
periods for considering past conduct. But, if the conduct com
plained of would be criminal in nature it is relevant to keep in
mind that no limitation period would by itself preclude possible
prosecution. These considerations, 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 Chairman's discretion.
In summary, the Trial Judge set out the ques
tions asked in the stated case and his answers to
them (at pages 787-789):
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-1",
"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 subsec
tion 45.35(1) of the Act was in force.
Answer to Question 1
Yes, the Commission has jurisdiction to consider these com
plaints if the Commission Chairman decides, pursuant to sub
section 45.44(1), to institute 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 statement 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
complaint "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
complaint "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 I.
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 (subsection
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 fur
ther unless the Chairman of the Commission, pursuant to
subsection 45.44(l), 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 rela
tion 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 (subsec-
tions 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 Com
mission, 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 circumstances
considered by the Chairman in his or her decision.
Question 5 and the Trial Judge's answer to it
were not put in issue on this appeal.
II
The respondent supported the reasoning of the
Trial Judge with respect to his interpretation of
Brosseau as establishing a public-interest excep
tion to the presumption against retrospectivity, but
also contended that Parts VI and VII, as purely
procedural amendments, fell squarely as well
within the exception enjoyed by purely procedural
statutes, a matter on which I shall set out the law
in Part IV infra. The respondent also argued the
implied intention of Parts VI and VII, and submit
ted an additional consideration based upon subsec
tion 45.41(1). The appellant, while supporting the
Trial Judge's holding that Parts VI and VII did
not deal with merely procedural matters, generally
sought to limit the Trial Judge's public-interest
exception to the presumption against retrospectivi-
ty, which he had based upon Brosseau. The correct
interpretation of Brosseau is therefore key to the
resolution of this point.
Since L'Heureux-Dubé J. dealt with the retros-
pectivity question in Brosseau within the frame
work established by Driedger, Construction of
Statutes, 2nd ed., Toronto, 1983,' I believe
Driedger's analysis of "External Sources of Parlia
mentary Intent" (Chapter 10, at pages 183-221)
deserves close scrutiny.
It may be useful to recall at the beginning
Driedger's subtle distinction between retrospectivi-
ty and retroactivity, * at pages 185 ff.
A retroactive statute is one that operates back
wards, i.e., that is operative as of a time prior to its
enactment, either by being deemed to have come
into force at a time prior to its enactment (e.g.,
budgetary measures) or by being expressed to be
operative with respect to past transactions as of a
past time (e.g., acts of indemnity). A retroactive
statute is easier to recognize because the retroac-
tivity is usually express.
A retrospective statute, on the other hand,
changes the law only for the future but looks
backward by attaching new consequences to com
pleted transactions. It thus opens up closed trans
actions and changes their consequences as of the
future.
A statute can be both retroactive and retrospec
tive. The statute in the case at bar is not, however,
retroactive, though it is arguably retrospective.
' She supplemented this with a quotation from his article,
"Statutes: Retroactive, Retrospective Reflections" (1978), 56
Can. Bar Rev. 264, at p. 275.
* Editor's Note: In French, "rétroactivité" covers both con
cepts. For the purposes of this analysis, however, "rétroactif"
was rendered by "rétroactif' and "retrospective" by "rétro-
spectif'. Elsewhere in these reasons, "retrospective" was ren
dered by "rétroactif".
In Driedger's analysis, the presumption as to
retrospective operation needs to be carefully distin
guished from that against interference with vested
rights. The latter is not a prima facie presumption
but rather one that may be invoked only when a
statute is reasonably susceptible of two meanings
(supra, at page 185) whereas the retrospective
presumption is a prima facie one, which applies
unless it is rebutted (supra, at page 189). The
reason for this is that impairment of existing rights
is a frequently intended consequence of statutes, 2
and therefore the presumption against non-inter
ference with vested rights applies only in the case
of ambiguity in the statutory language, i.e., one
looks first to the statute, and to the presumption
only secondarily, if the intent is unclear.
Driedger states that the confusion between the
two presumptions is found in two early Supreme
Court decisions, Upper Canada College v. Smith
(1920), 61 S.C.R. 413; and Acme Village School
District (Board of Trustees of) v. Steele-Smith,
[1933] S.C.R. 47, both relied on heavily by the
respondent in the case at bar. In his view both
cases are pure "vested rights" cases, which are
only prospective in operation. Neither case was
cited by L'Heureux-Dubé J., undoubtedly because
she was in agreement with Driedger's thesis.
Driedger's analysis proceeds (supra, at pages
197-198):
As has here already been indicated, a retroactive statute is
one that operates as of a time prior to its enactment. A
retrospective statute is one that operates for the future only; it
is prospective, but it imposes new results in respect of a past
2 Accordingly, in Gustayson Drilling (1964) Ltd. v. Minister
of National Revenue, [1977] 1 S.C.R. 271, at pp. 282-283,
Dickson J. [as he then was] held for the Supreme Court that a
taxpayer had no vested right to claim tax deductions in the
future: "A taxpayer may plan his financial affairs in reliance
on the tax laws remaining the same; he takes the risk that the
legislation may be changed." Gustayson was followed in Attor
ney General of Quebec v. Expropriation Tribunal et al., [1986]
1 S.C.R. 732 where the Supreme Court held that the Crown's
right to discontinue an expropriation unilaterally was not a
vested right but only a possibility or an option, and that this
right was abolished by the new Expropriation Act [R.S.Q.
1977, c. E-24].
event. A retroactive statute operates backwards. A retrospec
tive statute operates forwards, but it looks backwards in that it
attaches new consequences for the future to an event that took
place before the statute was enacted. A retroactive statute
changes the law from what it was; a retrospective statute
changes the law from what it otherwise would be with respect
to a prior event.
Unless a clear distinction is made between the two words,
there is bound to be confusion. Thus, a statute could be
retroactive but not retrospective, retrospective but not retroac
tive, or both retroactive and retrospective; and both retroactive
statutes and retrospective statutes could be, and usually are,
prospective also. The presumption applies to both, but the test
of retroactivity is different from that of retrospectivity. For
retroactivity the question is: Is there anything in the statute to
indicate that it must be deemed to be the law as of a time prior
to its enactment? For retrospectivity the question is: Is there
anything in the statute to indicate that the consequences of a
prior event are changed, not for a time before its enactment,
but henceforth from the time of enactment, or from the time of
its commencement if that should be later?
But not all retrospective statutes attract the presumption;
only those, to use the words of Sedgwick [Statutory Construc
tion and Constitutional Law, 2nd ed., New York, 1874, at
160], that
create a new obligation, or impose a new duty or attach a
new disability in respect to transactions or considerations
already passed.
In brief, the presumption applies only to prejudicial statutes;
not beneficial ones.
Thus, there are three kinds of statutes that can properly be
said to be retrospective, but there is only one that attracts the
presumption. 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.
The threefold division of statutes in the last
paragraph of the quotation was set out and explic
itly followed by L'Heureux-Dubé J., though noth
ing more was said of the first category.' She
3 I Snider v. Edmonton Sun et al. (1988), 93 A.R. 26
(C.A.), at p. 30, Lieberman J.A. wrote for the Court with
respect to the first category:
(Continued on next page)
concentrated on the third category of statutes, as
follows (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.
The two supporting cases cited by L'Heureux-
Dubé J., Reg. v. Vine (1875), 10 L.R. Q.B. 195;
and Re A Solicitor's Clerk, [1957] 3 All E.R. 617
(Q.B.D.), are in my opinion worth remarking. In
the former case a new statutory provision provided
that convicted felons were forever disqualified
from selling retail spirits. The Court refused to
consider the statute as governed by the presump
tion against retrospectivity. Cockburn C.J., wrote
at pages 199-200:
... here the object of the enactment is not to punish offenders,
but to protect the public against public-houses in which spirits
are retailed being kept by persons of doubtful character.... the
legislature has categorically drawn a hard and fast line, obvi
ously with a view to protect the public, in order that places of
public resort may be kept by persons of good character; and it
matters not for this purpose whether a person was convicted
before or after the Act passed, one is equally bad as the other
and ought not to be intrusted with a licence.
In the latter case a statutory amendment had
allowed the making of orders disqualifying persons
convicted of larceny, embezzlement or fraudulent
conversion of property from acting as solicitors'
clerks. Lord Goddard C.J. wrote (at page 619):
In my opinion, however, this Act is not in truth retrospective. It
enables an order to be made disqualifying a person from acting
as a solicitor's clerk in the future and what happened in the
past is the cause or reason for the making of the order; but the
order has no retrospective effect. It would be retrospective if
the Act provided that anything done before the Act came into
force or before the order was made should be void or voidable
or if a penalty were inflicted for having acted in this or any
other capacity before the Act came into force or before the
order was made. This Act simply enables a disqualification to
be imposed for the future which in no way affects anything
done by the appellant in the past.
(Continued from previous page)
I am of the respectful view that a statute can only be
classed as "benevolent", as that word is used by
Driedger when it confers a benefit upon a person
without contemporaneously depriving another person
of a vested right ... .
On Driedger's analysis Lord Goddard was appar
ently another victim of confused terminology. But
his message nevertheless is clear: the statute is not
retroactive, but retrospective, and is enforceable as
an exception to the presumption against retrospec-
tivity.
After quoting from these two decisions, L'Heu-
reux-Dubé returned to Driedger (at page 320):
Elmer Driedger summarizes the point in "Statutes: Retroac
tive, Retrospective Reflections" (1978), 56 Can. Bar Rev. 264,
at p. 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 consequence is attached to a prior event.
But if the new punishment or penalty is intended to
protect the public, the presumption does not apply.
What this amounts to, it seems to me, is made
crystal clear in her final two quotations, taken
from Stevenson J.A. (as he then was) of the
Alberta Court of Appeal in the same case, sub
nom. Barry and Brosseau v. Alberta Securities
Commission (1986), 67 A.R. 222, at page 229 (at
pages 320-321 S.C.R.):
Stevenson J.A. of the Court of Appeal likened the situation
in the present appeal to that in the Re A Solicitor's Clerk case
at p. 229:
In my view the principle in the Solicitor's Clerk case is
indistinguishable. An additional power is given to the
Commission based on previous conduct. A new pun
ishment cannot be added but that is not the nature of the
office of ss. 166 and 167. It is the same office that the
Solicitor's Clerk case deals with, namely to provide a
disqualification based on past conduct which may show
unfitness for the exemption. 4
° Stevenson J.A. explained the notion of exemption earlier in
his decision (p. 225 A.R.):
The exemption referred to are exemptions from regis
tration for certain kinds of trading, exemptions from
prospectus requirements in specified cases, and exemp
tions regarding some particular bids. The consequence
of making any of the requested orders would be to
restrict the appellants from engaging in activities
which would otherwise be exempt from regulation by
the Commission. It is acknowledged that the Commis
sion did not have the power to subject these appellants
to the kinds of orders envisaged by ss. 165 and 166
under the Act that was in force when the impugned
prospectus was delivered.
The present case involves the imposition of a remedy, the
application of which is based upon conduct of the appellant
before the enactment of ss. 165 and 166. Nonetheless, the
remedy is not designed as a punishment for that conduct.
Rather, it serves to protect members of the public.
The fact that the relief is not really punitive in nature is
supported by the conclusion of Stevenson J.A. that the imposi
tion of the new remedy did not lie at the root of the appellant's
concern in this matter at p. 229:
In essence, the appellants fear the stigma arising from a
finding that they did, or failed to do, what is alleged in
the hearing notice. That root concern was well illustrated
by the suggestion made in argument that neither would
be particularly aggrieved by the remedy being imposed
against them, indeed they could accept the remedies, but
were concerned about the finding of wrong doing.
The office or function of such statutes is to estab
lish some form of legal disqualification rather than
to punish as such. In short, there is an exception to
the presumption against retrospectivity where
there is (1) a statutory disqualification, (2) based
on past conduct, (3) which demonstrates a con
tinuing unfitness for the privilege in question. To
my mind this is quite a narrow exception to the
general presumption, one that is very much more
limited in scope than the Trial Judge's holding
that an exception occurs whenever the statutory
purpose may be conceptualized in broad terms as
the protection of the public, whatever may be the
effect upon the subordinate value of vested rights
or interests. The actual holding of Brosseau, as far
as I can see, has no possible application to the case
at bar, since there is no question here of a continu
ing unfitness.
Of course, L'Heureux-Dubé categorizes the kind
of statute she is dealing with as only "A sub-cate
gory of the third type of statute described by
Driedger" (at page 319). Driedger's third type of
statute, it will be recalled, is statutes "that impose
a penalty on a person who is described by refer
ence to a prior event, but the penalty is not intend
ed as further punishment for the event" (supra, at
page 198). What L'Heureux-Dubé J. describes as
a sub-category, is nevertheless expressed in almost
identical terms with Driedger's description of the
whole category, and appears to exhaust it: in her
words, "enactments which may impose a penalty
on a person related to the past event, so long as the
goal of the penalty is not to punish the person in
question, but to protect the public" (at page 319).
Whether there is a general category broader
than the sub-category, it must at least be recog
nized that there cannot be any public-interest or
public-protection exception, writ large, to the pre
sumption against retrospectivity, for the simple
reason that every statute, whatever its content, can
be said to be in the public interest or for the public
protection. No Parliament ever deliberately legis
lates against the public interest but always visual
izes its legislative innovations as being for the
public good.
If there is a public-interest exception at all,
therefore, it must in my opinion be reducible to a
matter of legislative intent, that is, whether parlia
ment intended prospectivity or retrospectivity. All
the presumptions in question, after all, are pre
sumptions of parliamentary intent. Hence there is
nothing inconsistent in seeking to elucidate a pre
sumption in the light of textual indications of
parliamentary intent, as taken in the total statu
tory context. 5 If presumptions can aid intent, why
cannot real intent aid fictitious presumptions? Or
put more precisely, all that is needed is the intent,
whether derived from a presumption or from the
statute itself.
Thus the counsel of Wright J. in In re Athlum-
ney. Ex parte Wilson, [1898] 2 Q.B. 547 at pages
551-552 was to look to the statute:
Perhaps no rule of construction is more firmly established than
this — that a retrospective operation is not to be given to a
statute so as to impair an existing right or obligation, otherwise
than as regards matter of procedure, unless that effect cannot
be avoided without doing violence to the language of the
5 Such an interpretation of any broader meaning to be given
to Driedger's third category brings it very close to his first
category, "statutes that attach benevolent consequences to a
prior event" (supra, at p. 198) as interpreted by Snider v.
Edmonton Sun et al., supra, note 3.
enactment. If the enactment is expressed in language which is
fairly capable of either interpretation, it ought to be construed
as prospective only.
We also have the authority of the Supreme
Court for looking to the text of a statute for
resolution of the meaning of such a presumption:
Nova, An Alberta Corporation v. Amoco Canada
Petroleum Co. Ltd. et al., [1981] 2 S.C.R. 437,
where, in the words of L'Heureux-Dubé, supra, at
page 318, "Estey J. dealt with the issue of retros-
pectivity by scrutinizing the intent behind the par
ticular piece of legislation." Moreover, that Court
in Quebec (Attorney General) v. Healey, [1987] 1
S.C.R. 158, at pages 166-167 approved the follow
ing statements from Maxwell on the Interpreta
tion of Statutes, 12th ed., 1969 at pages 215-216:
It is a fundamental rule of English law that no statute shall be
construed to have a retrospective operation unless such a
construction appears very clearly in the terms of the Act, or
arises by necessary and distinct implication.
If, however, the language or the dominant intention of the
enactment so demands, the Act must be construed so as to have
a retrospective operation, for "the rule against the retrospective
effect of statutes is not a rigid or inflexible rule but is one to be
applied always in the light of the language of the statute and
the subject-matter with which the statute is dealing."
To reflect on the language of the statute and its
subject-matter, we must turn to a close examina
tion of the Act itself.
III
It is common ground that the genesis of the
amending Act is to be found in The Report of the
Commission of Inquiry Relating to Public Com
plaints, Internal Discipline and Grievance Proce
dure within the Royal Canadian Mounted Police,
Information Canada, Ottawa, 1976 (The Marin
Commission Report). That Report recommended
the creation of a public complaint system opera
tionally and functionally distinct from the discipli
nary system.
The mischief aimed at by the amending Act is
undoubtedly accurately expressed by the following
statement of the Marin Commission (at page 97):
The need for an independent authority to review the actions
of the Force in handling public complaints is not one based on
any discovery of a history of abuse or neglect. On the contrary,
we have not found many cases where the Force was not both
thorough in its investigation and fair in its disposition of
complaints. The need in question is based on perceptions held
by many who have difficulty in understanding how the Force
can be both the supervisor and final arbiter for public com
plaints. Complainants, members involved in complaints and
Canadians in general are entitled to an unqualified confidence
in the Royal Canadian Mounted Police. In our view, the
introduction of an independent review authority will ensure
that such confidence is attainable.
As drawn to the Court's attention by the respond
ent, this view was echoed by the then Solicitor
General in moving second reading of the amending
legislation, (Debates of the House of Commons,
September 11, 1985, at page 6518):
I see the establishment of the public complaints commission
as an amendment of paramount importance. It is a 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.
One purpose of the legislation, then, deduced
from the mischief at which it was directed, is the
protection of the public from having its complaints
investigated privately. But it is evident from other
clarifying words of the Solicitor General that there
is another mischief to be guarded against as well,
viz., the pillorying of members of the Force
(Debates, September 11, 1985, at page 6519):
The recommendations of the Marin Commission are substan
tially implemented in this Act and considerable time and effort
has been invested in developing revisions that will support and
further the work of the RCMP and adequately preserve the
delicate balance between the protection of the rights of the
public and the individual members of the RCMP.
This comment would indicate that both mischiefs
are being equally guarded against.
A surer way of approaching the problem, it
seems to me, is through analysis of the provisions
of the amending Act, particularly in relation to the
antecedent Act.
As I indicated at the outset, the Commission is
established by Part VI of the Act. Part VII then
begins (subsection 45.35(1)) with the right of any
member of the public having a complaint concern
ing the conduct, in the performance of any duty or
function under the Act, of any member or other
person appointed or employed under the Act, to
make a complaint to the Commission, to any
member or other person appointed or employed
under the Act, or to any provincial authority
responsible for complaints by the public against
police. Complaints may also be initiated by the
Commission Chairman.
The Commission must notify the Commissioner
of every complaint received, and he must deal with
every complaint, either informally (on consent) or
with an investigation, or without an investigation if
he does not deem it warranted or reasonably prac
ticable. Where a complaint has been initiated by
the Commission Chairman, the Commissioner
must investigate it.
Forthwith upon being notified of a complaint,
the Commissioner must notify the person com
plained against, unless, in his opinion, to do so
might adversely affect an investigation.
A complainant who is dissatisfied with the dis
position of a complaint by the RCMP may, pursu
ant to section 45.41, refer the complaint to the
Commission. Upon such referral of a complaint,
the Commission is obliged to review the complaint
unless it has already investigated it or instituted an
inquiry into the matter.
In addition to this duty to review complaints
that have been referred, the Chairman has also, by
virtue of section 45.43, the power to investigate or
institute a hearing into a complaint, whether or not
it has been investigated or reported on or otherwise
dealt with by the Commissioner where he "consid-
ers it advisable in the public interest."
Where the Chairman decides to institute a hear
ing, the Chairman assigns a member or members
of the Commission to conduct it. For purposes of
the hearing, this member or these members are
then deemed to be the Commission. There are
formalities of notice, and the Commission has the
powers conferred on a board of inquiry, including
the power of subpoena. The complainant, the
RCMP, and the person complained against all
have the right to present evidence, to cross-exam-
ine witnesses, to make representations, and to be
represented by counsel.
The Commission does not have any power to
issue a binding order or direction, but it must, on
completion of a hearing, report in writing, to the
Commissioner and the Solicitor General, "setting
out such findings and recommendations with
respect to the complaint as the Commission sees
fit."
The Commissioner is required to review the
complaint in the light of the findings and recom
mendations set out in the report, and reply to the
Solicitor General and the Chairman what action,
if any, he will take, or with reasons for not acting,
if his decision is not to act.
The last word belongs to the Chairman, who
must make a final report in writing to the parties,
the Solicitor General, and the Commissioner.
Prior to the amending Act, there was no statu
tory scheme in place for the investigation of public
complaints. There was only an internal review
procedure, established by an administrative act of
the Commissioner (Bulletin AM-740 of October
19, 1984, set out at Appeal Book I, at pages 32 ff
and II, at pages 193 ff). 6 As neither statute law
nor regulation, it had no legal status: Martineau et
al. v. Matsqui Institution Inmate Disciplinary
Board, [1978] 1 S.C.R. 118, at page 129.
It is also worth noting that the disciplinary
offences (major and minor service offences)
applied only to members in the pre-amendment
Act (sections 25 and 26), so that there could be no
statutory review of the conduct of civilian
employees of the Force except under the Public
Service Employment Act [R.S.C., 1985, c. P-33]
(section 10 of . the old Act), whereas of course
6 Counsel for both parties agreed that this Bulletin was not
even a Commissioner's Standing Order.
under Part VII public complaints may be brought
against such employees.'
It is also noteworthy that Part II of the amend
ing Act provided for the creation of an External
Review Committee, which plays an important role
in the new internal grievance procedure for com
plaints by RCMP personnel established by Part III
of the amending Act. Part IV of the amending Act
instituted a new disciplinary Code of Conduct
,governing the conduct of members of the RCMP,
which essentially replaced Part II of the old Act.
Part II was proclaimed as law as of December 18,
1986 and Parts III and IV as of June 30, 1988.
IV
It was submitted by the respondent that Parts VI
and VII create nothing more than a new procedure
for the investigation of public complaints against
members of the RCMP, and that, as procedural
legislation, the presumption against the retrospec
tive application of statutes does not apply.
The law in this respect was shortly stated by La
Forest J. for the Supreme Court in Angus v. Sun
Alliance Insurance Co., [1988] 2 S.C.R. 256, at
page 262:
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 ....
That much is clear. However, as La Forest J. went
on to say (at page 262), "The distinction between
' It is of course true, as contended by the respondent, that
complaints by the public against non-member personnel could
have triggered an inquiry under the Inquiries Act [R.S.C.,
1985, c. I-11], but that is equally true of anything and everyone
else, and can hardly be seen as a form of review of the conduct
of non-members. The companion submission of the respondent
that non-member personnel could have been investigated under
section 31 of the old Act, which provided for investigations
"Whenever it appears ... that a service offence has been
committed" makes no sense at all, since a non-member could
not be found guilty of a service offence.
substantive and procedural provisions ... is far
from clear." To begin with, as stated by Côté, The
Interpretation of Legislation in Canada, Cowans-
ville, Les Éditions Yvon Blais Inc., 1984, at page
137:
Procedural acts have no retroactive operation, their effect is
only immediate
It is not enough for the law to be procedural in nature. For
the rule of immediate application to apply, it must, in the
specific circumstances in which it will apply, affect "procedure
only", it must be a provision of "mere procedure" or "pure
procedure".
Côté adds (at page 139):
Thus, a statute is purely procedural if its application affects
only the means of exercising a right.
La Forest J. put it this way in Angus (at page
265):
Even if one assumes that the provision in question is proce
dural in some sense, the judicially created presumptions regard
ing the retrospective effect of procedural rules were not devised
with this sort of distinction in mind. Normally, rules of proce
dure 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.
The cases cited by the appellant, Latif v.
Canadian Human Rights Commission, [1980] 1
F.C. 687 (C.A.); Re Royal Insurance Co. of
Canada and Ontario Human Rights Commission
et al. (1985), 51 O.R. (2d) 797 (Div. Ct.); and R y
Secretary of State for Trade and Industry, ex p R,
[1989] 1 All ER 647 (Q.B.D.), all involve, it seems
to me, new statutory structures which are both
more elaborate and more clearly substantive in
their effects on rights than the statute at bar. The
instant case is a more borderline one because the
Commission is rather like an ombudsman with an
opportunity to persuade the ultimate authority, the
Commissioner. Indeed, the respondent argued
strenuously that the absence of powers allowing
the Commission to impose sanctions of any kind
upon RCMP personnel shows the non-punitive and
merely procedural character of Part VII. Sanc
tions as such , can be imposed only by the
Commissioner.
Nevertheless, I believe it would be unrealistic to
conclude that there will be no effect on those
investigated as a result of any investigation under
taken, particularly where there is a public hearing.
The Commission may operate either as a form of
appellate review of an RCMP investigation, or,
when the Chairman invokes the public interest, as
an external review of first instance. The Act pro
vides for subpoenas, oral testimony with cross-
examination, arguments by counsel, and a report
by the Committee. Parliament itself has in my
opinion recognized the effect on the rights of
RCMP personnel by providing in subsection
45.45(10) that no answer or statement in response
to a question shall be used or receivable against a
witness in a disciplinary hearing, except where
there is perjury. This indicates clearly enough
Parliament's view as to the substantive effect of
Part VII. Beyond all this, there is Parliament's
addition of non-members to those whose conduct
can be scrutinized under the Act. What is legislat
ed is clearly not just a manner of scrutiny, but the
very existence of public scrutiny for the first time.
In terms of the test established by La Forest J. in
Angus this is not the kind of procedural legislation
that can escape the presumption against retrospec-
tivity.,
Hence 1 do not find relevant the respondent's
citation of Wildman v. The Queen, [1984] 2
S.C.R. 311, where the Supreme Court held that
the incompetence and uncompellability of a wife
under the previous law is a merely procedural
right, not the result of a substantive right to
confidentiality, since the Court obviously found
the provision there to be a matter of mere
procedure.
I am therefore persuaded by the learned Trial
Judge and for the same reasons that this legisla
tion does not fall under the exception to the gener
al presumption against retrospectivity afforded
procedural legislation. As he put it (at page 770):
... 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.
V
In my view, the same evidence of parliamentary
intention which prove that Parts VI and VII are
not a purely procedural exception to the presump
tion against retrospectivity also speak to a parlia
mentary intention of prospectivity rather than
retrospectivity. The introduction of Part VII
imposes new disabilities (as to reputation and dis
cipline) and new duties (as to responding to com
plaints) on RCMP personnel. It cannot realistical
ly be said that any such penalties are not intended
as punishment for the event. That is indeed one of
the purposes, where fault on behalf of RCMP
personnel is found. The public is not being protect
ed merely against a continuing unfitness as in
Brosseau, but by exposure and punishment of
wrongdoers. Equally, RCMP members and non
members are intended to be protected, as far as
possible, from unsupported allegations against
them. An RCMP member might have been
charged with an offence, tried and acquitted pur
suant to the provisions of Part II of the Act as it
read prior to these amendments. A retrospective
application of Part VII could have the effect of
putting that person through an inquiry process a
second time. Indeed, there might already have
been a conviction under the old Part II and a
consequent punishment, but the matter could still
be revisited if retrospectivity were recognized.
This is a world removed from the legislation
allowed to function retrospectively in Brosseau.
Nor does it qualify for any broader meaning of the
third category, viz., that it created only benefits
and imposed no obligations. As already observed,
the Act imposes disabilities and obligations on a
new group, never before scrutinized, i.e., non
members.
All of this is not merely to say that Parts VI and
VII do not neatly fall within Driedger's third
category of presumptions. What is even more
important is that the parliamentary intention
which is reflected by these provisions does not
imply retrospectivity. On the contrary, Parlia
ment's, including a whole new group in the cover
age of possible disciplinary proceedings and its
extreme care in delineating protections for those
complained against establish exactly the opposite,
viz., that it intended only prospective operation.
The Trial Judge, of course, reached a contrary
conclusion as to the necessary implication of the
Act, and is supported in that by the respondent.
For the TrialJudge, as I read him, this position is
principally an elucidation of his previously arrived
at conclusion with respect to the Act's falling
within the third or excepting category of presump
tion, since he draws it [at page 778] "From the
general circumstances concerning the enactment
and its possible application, from my earlier con
clusion that the objective of Parts VI and VII was
to provide protection of public interests, and that
any effect upon vested rights or interests is subor
dinate to the public protection intended". But if
the Act is looked at without the belief that it is
governed by Brosseau, but merely for indications
of Parliament's own intent, then a retrospective
interpretation is not, I believe, possible.
For the sake of completeness, however, I should
refer specifically to two included considerations
taken into account by the Trial Judge under the
same rubric (at pages 776-777):
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 statute were apparently enacted to implement
other recommendations of the Report of the Marin Commis
sion. Thus, Part II provided for the creation of the Royal
Canadian Mounted Police External Review Committee, and
Part III, providing a statutory internal grievance procedure for
complaints by members of the RCMP, provides for this Exter
nal Review Committee to play an important role in the griev
ance 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 grievances. 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 implications 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 neces
sary, 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 Commis
sion where the conduct alleged occurred after that date.
Both these factors refer to the supposed anom
aly of Parliament's intending to bring different
Parts of the amending Act into force at different
times with varying effects. Perhaps that was not
Parliament's intention, but Parliament well under
stands that proclamation is an executive act, and
that the coming into force of legislation depends
not upon Parliament itself but upon the executive
of the day. Nothing in this consideration in my
view implies that Parliament intended any part of
the Act to have an effect retrospective to the time
of its coming into force. Parliament may well have
intended that the various parts of the amending
Act should all come into force at the same time,
but that does not imply that all or any of them
should have retrospective effect. That falls to be
decided upon an examination of the factors I have
already considered.
The respondent also raised an issue as to the
interpretation to be given to subsection 45.41(1) of
the Act. In this connection the respondent submit
ted that "A complainant under subsection
43.35(1)" of the Act, as it appears in subsection
45.41(1), should be interpreted to include any
person who has made a complaint to any of the
persons referred to in paragraph 45.35(1)(a), (b),
or (c) of the Act, whether or not the complaint was
made before the coming into force of Part VII. As
an alternative interpretation it was contended that
the phrase "A complainant under subsection
45.35(1)" of the Act, as it appears in subsection
45.41(1), should be interpreted to mean a member
of the public who initiates a complaint, as distinct
from the Chairman of the Commission, who may
initiate a complaint under subsection 45.37(1).
This latter interpretation may well be the correct
one, but this whole argument as to subsection
45.41(1) is, as the Trial Judge rightly found, "sim-
ply 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" (at page 780). It is not, in
short, a distinct argument which needs to be treat
ed separately, and is answered by the general
answer already given.
In summary, the Act as enacted by Parliament,
when carefully examined, reveals a concern for
those complained against and an enlargement of
those subject to complaint in my view wholly
inconsistent with retrospectivity. Since in my opin
ion the Act is in no way retrospective, the various
dates referred to in the questions and complaints in
the stated case are all equally before the operative
time for the statute, and must therefore all stand
or fall together. As I read the statute, they all fall.
In the result the appeal should be allowed, the
judgment of the Trial Judge set aside, and the four
questions referred to the Court answered in the
negative. Because of the referential character of
this case, in my opinion there should be no order as
to costs.
URIE J.A.: I agree.
LINDEN J.A.: I agree.
Appendix
Schedule "A"
COMPLAINT "A-1"
(a) This complainant alleges that during the
evening of June 20, 1988, he entered the 18th floor
of a hotel in downtown Toronto in the belief that a
meeting he planned to attend was being held there.
(b) The hotel floor in question was occupied by
the United States delegation to an economic
summit meeting of world leaders being held in
Toronto.
(c) The complainant alleges that upon discovering
that the room for the meeting in question was
empty, he made enquiries of security personnel,
who were members of the RCMP.
(d) It is alleged that the officers in question,
rather than responding to the enquiries of the
complainant, proceeded to arrest the complainant
and detain him for over an hour. The complainant
alleges that during this time his person and belong
ings were searched, attempts were made to ques
tion him in spite of his insistence upon the right to
remain silent, and he was subjected to various
accusations against his good character.
(e) The complainant informed the RCMP of his
complaint regarding this conduct by letter dated
June 22, 1988, and the complaint was disposed of
by the RCMP by letter dated December 5, 1988.
(f) The complaint was referred to the Commission
for review by the complainant in writing by letter
dated December 15, 1988. Also by letter dated
December 15, 1988, the complainant informed the
RCMP that he was not satisfied with the disposi
tion of his complaint by the RCMP and that the
matter would be referred to the Commission.
(g) By letter dated December 29, 1988 to the
complainant, the Commission acknowledged
receipt of the complaint and informed the complai
nant of the jurisdictional questions which had
arisen regarding the Commission's authority to
review the complaint.
COMPLAINT "A-2"
(a) This complainant alleges that on or about
March 8, 1988, he was arrested for a minor
offence and held in detention by members of the
RCMP.
(b) The complainant alleges that while in custody
he was severely beaten by members of the RCMP,
as a consequence of which he permanently lost the
sight of one eye and sustained a fracture of the left
side of his skull, among other injuries.
(c) The complainant informed the RCMP of his
complaint in writing on or about March 15, 1988.
The RCMP disposed of the complaint by letter to
the complainant dated May 20, 1988.
(d) The complaint was communicated in writing
to the Commission by the complainant's solicitors
by letter dated December 14, 1988.
(e) By letter dated December 21, 1988 the Corn-
mission informed the complainant's solicitors of
the jurisdictional questions which had arisen
regarding the Commission's authority to review
the complaint.
(f) By letter dated January 1 9, 1989, the Commis
sion again wrote to the complainant's solicitors
requesting that the complaint be confirmed in
writing and again referring to the jurisdictional
questions which had arisen.
(g) By letter dated February 6, 1989 the complai
nant's solicitors wrote to the Commission confirm
ing the complainant's request that the Commission
review the complaint.
(h) By letter dated February 13, 1989 the Com
mission acknowledged to the complainant's solici
tors receipt of the request that the Commission
review the complaint and indicated that the matter
of the retrospective application of Part VII of the
Act had to be determined before the Commission
could proceed with the complaint.
COMPLAINT "A-3"
(a) This complainant is the estate of an individual
who died ,on August 28, 1988, allegedly as the
result of the unlawful act of another individual
who at this time stands charged with the offence of
second degree murder.
(b) The complainant alleges that the person
responsible for the deceased's death had been on a
"rampage" for approximately 24 hours prior to the
deceased's death in the small community in which
the person and the deceased resided. It is further
alleged that several complaints were made to the
community's RCMP detachment during this time
about the person alleged to be responsible for the
death of the deceased, and that the RCMP failed
to take any steps to apprehend that person.
(c) The complainant, through his solicitors,
informed the RCMP detachment in question of his
complaint by letter dated September 28, 1988.
(d) By letter dated February 15, 1989 from coun
sel at the Department of Justice, Canada on behalf
of the RCMP to the solicitors for the complainant,
the complaint was disposed of by the RCMP on
the basis that "no evidence exists to support any
alleged negligence of the part of the [RCMP
personnel]".
(e) By letter dated February 22, 1989 from the
complainant's solicitors to the Commission, the
Commission was requested to review the complaint
and, further, was requested to investigate the
matter further as "the circumstances warrant".
The solicitors for the complainant also requested
the Commission to hold a public hearing in respect
of the disposition of the complaint by the RCMP.
(f) By letter dated March 13, 1989 the solicitors
for the complainant again wrote to the Commis
sion formally requesting that the Commission
review the disposition of the complaint by the
RCMP pursuant to subsection 45.41(1) of the Act.
Schedule "B"
COMPLAINT "B-1"
(a) This complainant alleges that on October 26,
1986, he was assaulted by a breathalyser techni
cian employed by the RCMP while the technician
was in the course of measuring his blood alcohol
level. The complainant alleges that he was
"choked until blacking out on the floor".
(b) Written complaints dated January 12, 1987
and March 14, 1987, respectively, from the com
plainant to the RCMP were disposed of by letter
from the RCMP dated March 26, 1987.
(c) By letter dated April 7, 1987 to the RCMP,
the complainant again requested an investigation
of his complaint.
(d) By letter from the complainant to the Com
mission dated December 5, 1988, the complainant
informed the Commission of the complaint.
(e) By letter dated December 29, 1988 to the
complainant, the Commission acknowledged in
writing the complaint made by the complainant
regarding the disposition by the RCMP of his
complaint and requested the complainant to for
ward in writing a request to the Commission seek
ing a review of the complaint. In addition, the
Commission in its letter of December 29, 1988,
informed the complainant of the jurisdictional
questions which had arisen regarding the Commis
sion's authority to review the complaint.
Schedule "C"
COMPLAINT "C"
(a) This complainant alleges that in 1981 the
RCMP caused his dismissal from employment by
informing his employer that he was a murder
suspect.
(b) The Commission has been informed by the
complainant that by letter dated December 13,
1988, the RCMP informed the complainant that it
would take no further steps with respect to his
complaint. The Commission possesses no informa
tion at this time as to the date or content of the
complainant's original complaint to the RCMP,
nor has the Commission been provided with a copy
of the RCMP's letter of December 13, 1988.
(c) The complainant was dissatisfied with the dis
position of his complaint by the RCMP and com
municated his dissatisfaction to the Commission
by an undated letter received by the Commission
from the complainant on December 30, 1988.
(d) By letter dated January 25, 1989 the Commis
sion acknowledged receipt of the complainant's
letter indicating dissatisfaction with the disposition
by the RCMP of the complaint and, further,
informed the complainant of the jurisdictional
questions which had arisen regarding the Commis
sion's authority to review the complaint.
COMPLAINT "C-2"
(a) This complainant was arrested and charged by
the RCMP in May, 1985 with possession of stolen
property. The complainant alleges that at the time
of his arrest, members of the RCMP fabricated
evidence against him, which was subsequently used
to secure his conviction on the charge, as a result
of which he has spent 30 months in prison.
(b) This complaint was first communicated to the
Commission by letter dated January, 29, 1988 8
from the complainant, received by the Commission
in January, 1989.
(c) The complainant again wrote to the Commis
sion concerning this complaint by letter dated
February 24, 1989. In this letter, as well as in his
letter dated January 29, 1989, the complainant
requested the Commission to investigate his
complaint.
(d) The Commission wrote the complainant by
letter dated March 13, 1989 acknowledging
receipt of the complainant's complaint and inform
ing the complainant of the jurisdictional questions
which had arisen regarding the Commission's au
thority to entertain the complaint.
(e) As set out in paragraph 13 of the agreed
statement of facts, prior to the date hereof, this
complaint had not been brought formally to the
attention of the RCMP by the Commission or its
staff or, in so far as the Commission is aware, by
any other person.
8 This appears to be an error for 1989.
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.