Bisaillon v. Keable, [1983] 2 SCR 60

SUPREME COURT OF CANADA

Bisaillon v. Keable, [1983] 2 S.C.R. 60

Date: 1983-10-13

Émile Bisaillon Appellant;

and

Jean-F. Keable Respondent;

and

The Attorney General of Quebec Mis en cause;

and

The Attorney General of Canada, the Attorney General for Ontario, the Attorney General for New Brunswick and the Attorney General for Alberta Interveners.

File No.: 16341.

1982: March 3, 4; 1983: October 13.

Present: Laskin C.J. and Ritchie, Dickson, Beetz, Estey, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Constitutional law — Provincial inquiry commission — Investigation of certain criminal activities involving various police forces — Validity of mandate — Public Inquiry Commission Act, R.S.Q. 1964, c. 11 (now R.S.Q. 1977, c. C-37).

Evidence — Privilege respecting police informers — Provincial inquiry commission — Refusal by police officer to disclose informer's identity — Nature and scope of secrecy rule regarding police informers' identity — Code of Civil Procedure, art. 308 — Canada Evidence Act, R.S.C. 1970, c. E-10, s. 37 — Criminal Code, R.S.C. 1970, c. C-34, s. 7(2) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 41.

Administrative law — Provincial inquiry commission — Excess of jurisdiction — Evocation.

Respondent was given a mandate, under the Public Inquiry Commission Act of Quebec, to investigate and report on various allegedly illegal or reprehensible incidents or acts in which various police forces were involved. During his investigation he tried to compel appellant, a peace officer of the Montreal Urban Community Police Force, to disclose the identity of an individual whom respondent thought was a police informer. Appellant refused to answer and applied to the Superior Court for a writ of evocation against respondent. His application was dismissed and this judgment was affirmed by the Court of Appeal. By this appeal,

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appellant challenged the validity of the Commission's mandate on the grounds that (1) it applied to matters within federal jurisdiction and (2) it contained an unlawful subdelegation of powers. If the mandate was found to be valid, appellant argued inter alia that the Commissioner had exceeded his jurisdiction in seeking to compel him to disclose the identity of a police informer.

Held: The appeal should be allowed.

Question 1: Are the Orders in Council defining the Commissioner's mandate, namely Orders in Council 1968-77, 2736-77, 2986-77, 3719-77, 1336-78, 2534-78, 3024-78, 3943-78, 217-79, 814-79, 2038-79 and 293-79, in whole or in part, ultra vires the province of Quebec or the Lieutenant Governor in Council of the province?

Answer: No.

Question 2: With respect to testimony in the course of such an inquiry by a peace officer, concerning inquiries made in the performance of his duties in relation to offences against the criminal law, can the legislature of the province of Quebec constitutionally affect, and has it by its legislation affected:

(i) the principle of the confidentiality of police sources of information, with respect to information so obtained by such a peace officer; or

(ii) the status, the duties and powers of such a peace officer;

such that

(a) the principle of the confidentiality of police sources of information does not apply?

Answer: No.

(b) that principle will only apply if it is invoked by the persons and in accordance with the conditions set forth in section 308 of the Code of Civil Procedure of the province?

Answer: No.

(c) the commissioner is empowered to render a decision concerning, and set aside, the said principle when it is invoked before him?

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Answer:          No.

(d) the commissioner may compel a peace officer to testify regarding sources of information or produce documents relating thereto?

Answer:          No.

(1) Validity of mandate: There was nothing unconstitutional in the mandate of the Commission in light of the exclusion of the R.C.M.P., as a force, following Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218. A province could investigate the allegedly illegal or reprehensible behaviour of a police force within its constitutional jurisdiction, as well as the allegedly illegal actions of any peace officer. The manner in which peace officers exercised their powers and duties were matters which affected the discipline of police forces and their members and which fell within the administration of justice. There was also no question of an unlawful subdelegation of powers here. Read as a whole, the mandate made it clear that the Commissioner had no discretion to determine the scope and nature of the principal events which were to be the subject of his inquiry.

(2) Excess of jurisdiction: Respondent Commissioner could not compel a peace officer to disclose his sources of information. By questioning appellant as to the identity of a person whom he believed to be a police informer and by asking for documents supporting such an identification to be produced, respondent exceeded his jurisdiction by infringing the common law rule against judicial disclosure of the identity of police informers. The rule was one of public order, and was subject to only one exception, imposed by the need to demonstrate the innocence of an accused person at a trial. This common law rule was part of Quebec law and must be applied in an inquiry affecting the administration of justice. Article 308 C.C.P. did not have the effect of altering or abrogating it. This article applied only to the part of the common law which was included in the law on Crown privilege. It did not extend to the secrecy rule regarding police informers' identity, which was subject to a specific legal status and which had special rules, distinct from those applicable to Crown privilege. In constitutional terms, the rule must be considered an indivisible whole. Its salient characteristics made it a rule of criminal law which fell under federal jurisdiction. A provincial legislature could constitutionally abrogate or limit

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this rule, therefore, which in any case occupied the field and would make the provincial legislation invalid.

Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; Solicitor General of Canada v. Royal Commission of Inquiry (Ontario Health Records), [1981] 2 S.C.R. 494, applied; Ratnagopal v. Attorney-General, [1970] A.C. 974; Vadeboncoeur v. Landry, [1977] 2 S.C.R. 179; Saulnier v. Quebec Police Commission, [1976] 1 S.C.R. 572; Attorney General of Alberta v. Putnam, [1981] 2 S.C.R. 267; R. v. Samson (1977), 35 C.C.C. (2d) 258; Marshall v. The Queen, [1961] S.C.R. 123; Marks v. Beyfus (1890), 25 Q.B.D. 494; Humphrey v. Archibald (1893), 20 O.A.R. 267; Reference re Legislative Privilege (1978), 39 C.C.C. (2d) 226; Rogers v. Home Secretary, [1973] A.C. 388; Duncan v. Cammell, Laird and Co., [1942] A.C. 624; Conway v. Rimmer, [1968] A.C. 910; R. v. Snider, [1954] S.C.R. 479; Langelier v. Giroux (1931), 52 Que. K.B. 113; Lamb v. Benoit, [1959] S.C.R. 321; Cotroni v. Quebec Police Commission, [1978] 1 S.C.R. 1048; Canadian Broadcasting Corporation v. Quebec Police Commission, [1979] 2 S.C.R. 618; Minister of National Revenue v. Die-Plast Co., [1952] Que. K.B. 342; Gugy v. Maguire (1863), 13 L.C.R. 33; Alain v. Belleau (1897), 1 Q.P.R. 98; Hébert v. Latour (1913), 15 Q.P.R. 5; Rhéault v. Landry (1918), 55 C.S. 1; Boyer v. Boyer, [1946] R.P. 174; Gagnon v. Commission des Valeurs Mobilières du Québec, [1965] S.C.R. 73; Commission des droits de la personne v. Attorney General of Canada, [1982] 1 S.C.R. 215; Re Inquiry into the Confidentiality of Health Records in Ontario (1979), 98 D.L.R. (3d) 704; R. v. Lalonde (1971), 15 C.R.N.S. 1; Hodge v. The Queen (1883), 9 App. Cas. 117; O'Grady v. Sparling, [1960] S.C.R. 804; Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396; Vignola v. Keable, [1983] 2 S.C.R. 112, referred to.

APPEAL from a judgment of the Quebec Court of Appeal, [1980] C.A. 316, 127 D.L.R. (3d) 368, 62 C.C.C. (2d) 340, 17 C.R. (3d) 193, which affirmed a judgment of the Superior Court, [1980] C.S. 13, refusing to issue a writ of evocation. Appeal allowed.

Paul Normandin, Q.C., and Guy Lafrance, for the appellant.

Jacques Bellemarre, Q.C., and Jean-Pierre Lussier, for the respondent.

William J. Atkinson and Louis Crête, for the mis en cause.

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James M. Mabbutt, for the intervener the Attorney General of Canada.

Lorraine E. Weinrib, for the intervener the Attorney General for Ontario.

Patricia L. Cumming, for the intervener the Attorney General for New Brunswick.

William Henkel, Q.C., for the intervener the Attorney General for Alberta.

English version of the judgment of the Court delivered by

BEETZ J.—By his appeal appellant, a peace officer of the Montreal Urban Community Police Department ("MUCPD"), is asking the Court to set aside a majority decision by which the Court of Appeal of the province of Quebec affirmed a judgment of the Superior Court refusing to issue a writ of evocation against respondent, a commissioner appointed pursuant to the Public Inquiry Commission Act, R.S.Q. 1964, c. 11 (now R.S.Q. 1977, c. C-37). According to the motion in evocation, the mandate of respondent Commissioner is ultra vires and void, and even if the mandate is valid, the respondent Commissioner in any case exceeded his jurisdiction.

I—Facts

At this stage of the proceedings, the allegations of fact of the motion in evocation must be taken as proven. The Court must also take notice of the exhibits filed by applicant. In the light of the allegations taken as proven and of the exhibits, the Court must decide whether the facts alleged justify the conclusions sought.

It appears from these allegations and exhibits that, since June 15, 1977, respondent has presided over a commission of inquiry the mandate for which has been the subject of several Orders in Council extending either its duration or scope.

At the time the circumstances giving rise to the issue occurred, this mandate was as follows:

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MANDATE OF THE COMMISSION

A.—To investigate and report on all the circumstances surrounding the search carried out during the night of October 6 to 7, 1972 at 3459 St. Hubert Street in Montreal, as well as any previous or subsequent events that might be related thereto, and the conduct of all persons involved in the search or in a previous or subsequent event that might be related thereto, and, without restricting the generality of the foregoing:

(i) the closing of the investigation files that had been opened in the Montreal Urban Community Police Department following the complaints that were filed, shortly after the search, by the three organizations whose premises had been searched;

(ii) the discrepancy in the different versions that were given of this search;

(iii) the disposal of the documents that were seized during the search;

(iv) the collaboration of the R.C.M.P., the Quebec Police Force and the Montreal Urban Community Police Department with the Department of Justice during the investigation that was launched after the existence of this search became publicly known;

(v) the methods used during this search and the frequency of their use;

B.—To investigate and report on any circumstances and any previous or subsequent events that might be related to the following acts, as well as the conduct of all persons involved in the following acts and events:

(i) the illegal entry made during January 1973 into premises in which computer tapes were kept, containing a list of the members of a political party;

(ii) setting fire to a farm known as "Petit Québec Libre" in Sainte-Anne de la Rochelle on May 9, 1972;

(iii) a theft of dynamite in Rougemont in the spring of 1972;

(iv) the recruitment of informers by illegal or reprehensible means;

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(v) the preparation, drafting, issuing and distribution of any false communiqués;

C.—To investigate and report on the methods used during the acts referred to in paragraph B and the frequency of their use;

D.—To make recommendations on the measures to be taken to ensure that any illegal or reprehensible acts the Commission uncovers will not be repeated in future;

Except as regards paragraphs E-(iv) and B-(v), which are new, this mandate is identical to that considered by this Court in Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218 (hereinafter referred to as Keable No. 1). This Court there held that the mandate at that time was valid and intra vires the province with the following exceptions, as regards the R.C.M.P.: in paragraph A, the words "and the frequency of their use"; in paragraph C, the words "and the frequency of their use"; and paragraph D.

At a hearing held on November 20, 1979 before respondent Commissioner, Henri-Paul Vignola, the MUCPD Director, filed through his counsel an affidavit stating inter alia that subpoenas had been served on certain MUCPD officers ordering them to appear before respondent Commissioner, and that he had reason to believe, and did believe, that [TRANSLATION] "questions might be put to them designed to compel them to disclose the existence or identity of informers" of the MUCPD, as well as the latter's methods of investigation and operation. Henri-Paul Vignola stated that in his opinion the disclosure of such information would be harmful to public order and the public interest, and would interfere with the effective operation of the Police Department administered by him. He concluded his affidavit by stating that he objected on grounds of public interest to the disclosure by MUCPD officers to respondent Commissioner, by whatever means, of information regarding the existence and identity of MUCPD informers and the methods of investigation and operation of the MUCPD.

At the hearing held before respondent Commissioner the following day, November 21, 1979, three witnesses were questioned as to the origin of

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the paper used in preparing the communiqués the authenticity of which was being verified. The first witness was also questioned as to the source and use of dynamite. This first witness read a lengthy written statement, signed by him and the second witness, and titled [TRANSLATION] "Why We Refuse to Answer the Keable Commission". The trial judge described this statement, which attacked the respondent Commissioner, as a diatribe. It speaks of kangaroo courts, bias, the Commissioner's purposes and the bourgeois state.

Further to this statement, the three witnesses refused to answer, the first two for the reasons in the statement and the third from solidarity with the two witnesses who preceded him, although he [TRANSLATION] "did not endorse" their statement.

Respondent Commissioner told the three witnesses that for the first time he was confronted by a situation of flagrant contempt of court. He gave them a final opportunity to consult their counsel and change their attitude, and said that such a change would be sympathetically regarded; but he warned them that if they persisted, the only proceedings in which they would be heard would be for contempt.

At the next public hearing held on November 27, 1979 before respondent Commissioner, the first two witnesses who had refused to answer on the 21st maintained their refusal.

Respondent Commissioner stated that he observed with dismay that the statement read on November 21 was very similar to the alleged F.L.Q. communiqués the authenticity of which he was investigating. This statement was written by two people. Respondent Commissioner said that [TRANSLATION] "one of these two persons has been an active source for the Montreal Urban Community Police Department for many years". He mentioned this person's file number with the MUCPD and his name. He said that the controller of this source was appellant Bisaillon. A little later, the respondent Commissioner asked the person whom he had identified as an informer whether he wished to make a denial, and whether

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anyone in the room, in particular appellant Bisaillon, wished to deny what he had just said.

Appellant Bisaillon was then sworn. The respondent Commissioner said that he had only one question to ask him: Was Bisaillon the controller of the information source just identified by the respondent Commissioner?

Counsel for the appellant objected to the question. The respondent Commissioner dismissed the objection.

Counsel for the appellant requested an adjournment in order to ask the Superior Court to issue a writ of evocation. Respondent Commissioner refused the adjournment and ordered appellant to answer. The latter asked for permission to consult his counsel. After a minute of discussion between appellant and his counsel, the latter asked for an adjournment of ten minutes, which was denied. Respondent Commissioner asked appellant whether he understood the question and whether he refused to answer. Appellant again asked for permission to speak to his counsel. The Commissioner told him:

[TRANSLATION] Mr. Bisaillon, go away, I have no time to waste.

The respondent Commissioner adjourned the public hearings to the following day.

Appellant was summoned to appear before respondent Commissioner on November 28, 1979 by a subpoena dated on the 27th, to give evidence on matters falling within the Commission's mandate and to produce the documents mentioned in a duces tecum attached to the subpoena. Paragraphs 1 and 5 of the duces tecum R-4 mention all the files or documents concerning the information source identified by the respondent Commissioner, by whatever number he may be referred to, as well as all accounts rendered, transcripts, tapes, cassettes, summaries of electronic eavesdropping or voluntary recordings since 1969 concerning the information source in question.

Before the session of November 28, 1979 began, appellant caused his motion in evocation, dated

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November 27, to be served. According to the submission of appellant, which is not contradicted by the factum of respondent Commissioner, the latter [TRANSLATION] "agreed to cease trying to compel [appellant] to testify, or to produce documents disclosing information on police information sources, until judgment is rendered on the said motion".

Shortly before the appeal was heard in this Court, the Attorney General of Quebec, mis en cause, informed the Court that respondent Commissioner had submitted his resignation as commissioner on February 5, 1982 and had delivered a report containing the results of the investigation covering all aspects of the mandate given to the Commission, except for [TRANSLATION] "questions regarding the recruitment of informers by police forces", questions which could not be resolved before the judgment of this Court in the case at bar and the judgment in Vignola v. Keable, [1983] 2 S.C.R. 112, which is handed down concurrently. The mis en cause further informed the Court that continuing with the Commission's work would depend on the outcome of the appeal: it was too soon to appoint a new commissioner, but the mis en cause would recommend that the Lieutenant-Governor in Council do so in order to complete the Commission's mandate, if this Court upheld the judgment of the Court of Appeal to the effect that the Commissioner had not exceeded his jurisdiction.

Counsel for the mis en cause and respondent accordingly argued that this matter had not become of merely academic interest, and counsel for the appellant agreed that there was a real legal interest in resolving it. The Court agreed to hear the appeal on this basis.

II—Judgments of the Superior Court and Court of Appeal

These judgments have been published in full sub nom. Bisaillon v. Keable, [1980] C.A. 316[1], and Bisaillon v. Keable, [1980] C.S. 13.

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It does not seem necessary to summarize these judgments. I will have to refer to them several times and cite significant passages.

III—Constitutional questions

On appeal in this Court, the constitutional questions were formulated by order of the Chief Justice as follows:

1. Are the Orders in Council defining the commissioner's mandate, namely Orders in Council 1968-77, 2736-77, 2986-77, 3719-77, 1336-78, 2534-78, 3024-78, 3943-78, 217-79, 814-79, 2038-79 and 293-79, in whole or in part, ultra vires the province of Quebec or the Lieutenant Governor in Council of the province?

2. With respect to testimony in the course of such an inquiry by a peace officer, concerning inquiries made in the performance of his duties in relation to offences against the criminal law, can the legislature of the province of Quebec constitutionally affect, and has it by its legislation affected:

(i) Crown privilege or the principle of the confidentiality of police sources of information, with respect to information so obtained by such peace officer; or

(ii) the status and exercise of the duties and powers of such peace officer, or of his superior, the chief peace officer of a territory,

such that

(a) Crown privilege or the principle of the confidentiality of police sources of information do not apply?

(b) that privilege will only apply if it is invoked by the persons and in accordance with the conditions set forth in section 308 of the Code of Civil Procedure of the province?

(c) the commissioner is empowered to render a decision concerning, and set aside, the said privilege when it is invoked before him?

(d) the commissioner may compel a peace officer to testify regarding sources of information or produce documents relating thereto?

(e) a peace officer may not, without obtaining prior leave from the Attorney General or one of his deputies, lay an information before a justice of the peace regarding the commission of an offence by an individual, for the justice to decide in accordance with the provisions of the Criminal Code whether a prosecution should be authorized; or

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(f) the Attorney General or the Minister of Justice can direct a peace officer in his police operations and the performance of his duties concerning an offence against the criminal law?

The parties are generally left wide latitude by the Chief Justice or other judges of this Court in formulating the constitutional questions which they submit for approval. However, it does not follow that the Court is bound by these questions, and that it is required to answer them if it may dispose of the appeal without doing so or if it appears that the facts of the case do not provide a basis for such questions. The questions may not be used as a means of transforming an ordinary proceeding into a reference: Vadebonceur v. Landry, [1977] 2 S.C.R. 179, at pp. 187-88.

I should say at once that it will not be necessary to answer the questions stated in paragraphs (e) and (f) of the second question. They were undoubtedly included because of the very broad statements contained in pp. 319 to 322 of the opinion of Turgeon J.A. of the Court of Appeal, concurred in by L'Heureux-Dubé J.A., to the effect that because of structural differences police forces had even greater autonomy and independence from political control in England than in Quebec. These statements led Turgeon J.A. to express obiter dicta, for example, regarding the Act respecting the Ministère de la justice, R.S.Q. 1977, c. M-19, and the Act respecting Attorney-General's Prosecutors, R.S.Q. 1977, c. S-35, and appellant devoted a significant portion of his submission to trying to refute this argument. I do not intend to deal with this subject. First, the similarities and differences in structure do not seem to be of great assistance in answering the other specific questions, which the Court must resolve because they arise out of the facts of the case. Second, there is no basis in the facts of the case for the questions stated in paragraphs (e) and (f) of the second constitutional question.

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Additionally, in my opinion the wording of the second question is incorrect in that it classifies the [TRANSLATION] "principle of the confidentiality of police sources of information" together with Crown privilege. As I will explain below, a distinction must be made between this principle and Crown privilege because they are subject to different sets of legal provisions.

Finally, there is no need to deal with the "status ... of ... the chief peace officer of a territory" as mentioned in question 2(ü): in the context, there is no difference between a chief peace officer and a peace officer, and no party sought to establish any; moreover, the case at bar concerns an ordinary peace officer. In my view, this part of the question should read "the status, the duties and powers of such peace officer".

I would therefore restate the second question as follows:

2. With respect to testimony in the course of such an inquiry by a peace officer, concerning inquiries made in the performance of his duties in relation to offences against the criminal law, can the legislature of the province of Quebec constitutionally affect, and has it by its legislation affected:

(i) the principle of the confidentiality of police sources of information, with respect to information so obtained by such a peace officer; or

(ii) the status, the duties and powers of such peace officer,

such that

(a) the principle of the confidentiality of police sources of information does not apply?

(b) that principle will only apply if it is invoked by the persons and in accordance with the conditions set forth in section 308 of the Code of Civil Procedure of the province?

(c) the commissioner is empowered to render a decision concerning, and set aside, the said principle when it is invoked before him?

(d) the commissioner may compel a peace officer to testify regarding sources of information or produce documents relating thereto?

After the original constitutional questions had been served on the attorneys general, the Attorney General of Canada, the Attorney General for

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Ontario, the Attorney General for New Brunswick and the Attorney General for Alberta intervened, the first in support of appellant's position and the other three in support of respondent Commissioner's position.

The Attorney General of Quebec had been mis en cause in the Superior Court from the outset and supported respondent Commissioner's position throughout.

IV—Arguments of appellant

These arguments appear to be essentially the same as those raised in the Superior Court and the Court of Appeal. It seems convenient to group them in an order similar to that followed by the Superior Court, distinguishing arguments that go to the validity of respondent Commissioner's mandate from those dealing with excess of jurisdiction, in the event that the mandate is valid:

1. The validity of the Commissioner's mandate is challenged for two kinds of reasons:

(1) the mandate applies to matters of exclusive federal jurisdiction, namely:

A. national security and the 1970 October Crisis;

B. specific acts, which can only be the subject of a criminal pre-inquiry;

C. the acts of peace officers in the exercise of the powers and duties conferred on them by the criminal law and criminal procedure.

(2) the mandate contains an unlawful subdelegation of powers;

2. Excess of jurisdiction results:

(1) from the fact that the respondent Commissioner was disqualified by his bias or hostility;

(2) from the fact that he contravened the secrecy rule regarding police informers' identity; in this regard, I shall consider the following points:

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A. the Court of Appeal and Superior Court judgments on the matter;

B. nature and scope of the rule at common law: specific set of legal provisions for enforcing it;

C. has the Code of Civil Procedure affected the rule?

D. can the Quebec legislature constitutionally affect the rule?

V—Validity of mandate

(1) Does the mandate apply to subjects within exclusive federal jurisdiction?

A.—One of the arguments put forward by appellant is that the mandate of respondent Commissioner concerns national security and the 1970 October Crisis. This argument goes to the validity of the mandate. Appellant further contended that if this is not respondent Commissioner's real mandate, it is the one which he is in fact performing, which constitutes an excess of jurisdiction. These two arguments are related and will be considered in turn under this heading.

The text of respondent Commissioner's mandate is cited above. I see nothing in the wording that gives it the scope which appellant seeks to attribute to it.

I think it is also worth reproducing the text of the preambles to certain of the Orders in Council which defined the Commissioner's mandate.

The following is the preamble to Order in Council 1968-77, on which paragraph A of the mandate is based:

[TRANSLATION] WHEREAS a search was conducted on the night of October 6-7, 1972, in the premises located at 3459 St. Hubert Street, Montreal, occupied by the Agence de presse libre du Québec, the Mouvement pour la défense des prisonniers politiques du Québec and the Coopérative de déménagement du 1er mai;

WHEREAS this search was carried out by the R.C.M.P., the Quebec Police Force and the Montreal Urban Community Police Department jointly;

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WHEREAS an officer of each of these police forces has been charged with having undertaken this search without lawful excuse, contrary to s. 115 of the Criminal Code, and all three have pleaded guilty;

WHEREAS the circumstances surrounding this search have not been clarified, and it is in the public interest that they should be, in order to indicate exactly the extent of the responsibility of each of the police forces taking part;

WHEREAS pursuant to s. 1 of the Public Inquiry Commission Act (R.S.Q. 1964, c. 11), the Lieutenant Governor in Council may, whenever he deems it expedient, cause an inquiry to be made into and concerning the administration of justice, and may appoint, by a commission issued to that effect, one or more commissioners by whom such inquiry shall be conducted.

The preamble to Order in Council 3719-77 describes the circumstances which warranted the addition of paragraph B and its first three paragraphs, and paragraph C: it reads in part as follows:

[TRANSLATION] WHEREAS he has been informed that the R.C.M.P. has committed certain illegal acts in Quebec;

WHEREAS it is necessary to amend the mandate of this public inquiry commission, to authorize it to investigate and to report on these illegal acts;

Order in Council 217-79 is the one which added the text of paragraphs (iv) and (v) of paragraph B of the mandate. Its preamble reads in part as follows:

[TRANSLATION] WHEREAS it is necessary to again amend the mandate of this public inquiry commission, to enable it to investigate and report on the recruitment of informers by illegal or reprehensible means and on the preparation, drafting, issuing and distribution of any false communiqués;

In my view, these preambles can only indicate an intention to investigate the allegedly illegal or reprehensible acts or incidents in which various police forces were involved, and I see nothing unconstitutional or illegal in such an intent, in light of the exclusion of the R.C.M.P., as a force, following Keable No. 1.

This leaves the allegation that respondent Commissioner in fact was investigating national security

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 and the 1970 October Crisis, and that his avowed purpose was to demonstrate the existence of a police conspiracy seeking to create a climate of apprehended insurrection that would justify certain acts by the police. In his oral argument, counsel for the appellant maintained that the Commissioner purported to determine whether resort to the War Measures Act, R.S.C. 1970, c. W-2, in 1970 was justified. These allegations were based on two public statements made by respondent Commissioner on March 26 and November 20, 1979.

These arguments were dealt with in the Superior Court by Deschênes C.J. as follows, at pp. 23 and 24 of his judgment:

[TRANSLATION] It can be seen at once that the inquiry begun in mid-1977 and still in progress in late 1979 deals with events which occurred several years ago: in spring 1972, in May 1972, in October 1972 and in January 1973. In addition the inquiry must, as would be expected, look into prior or subsequent events that may be related to these.

It would be absurd to try and ignore the violent events which took place in Quebec some ten years ago, the activities of the F.L.Q. (Front de libération du Québec), the 1970 October Crisis and the turmoil that resulted.

Respondent Commissioner found that a close link existed—one of justification—between these violent events and those with which his inquiry was directly concerned. So as to avoid the risk of committing an injustice, let us see what the Commissioner himself said at a public hearing on March 26, 1979.

The trial judge then found it necessary to cite several passages from the statements made by respondent Commissioner on March 26 and November 20, 1979. These can be read in the judgment, the text of which has been published, and there is no need to repeat them. I need only cite the following passage from the statement of November 20, 1979:

[TRANSLATION]

REFERENCE TO THE 1970 OCTOBER CRISIS

Before concluding, I must deal with one last point which seems to need clarification: the connection between the inquiry I am conducting and the events of

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October 1970. As this matter has given rise to some misunderstandings to date, I will try to illustrate my thinking on the subject by way of an example. Let us suppose that an inquiry was being held on the extent of the police forces deployed in Montreal during the last Olympic games. Could anyone possibly conceive of a justification for the massive security measures imposed in Montreal at that time, if the hostage-taking which marked the preceding Games in Munich were left out of account and, so as not to awaken a traumatic memory, any reference to this tragic occurrence were prohibited? The answer of course is no. Would anyone say that by connecting the police deployed in Montreal in 1976 with the events that disrupted the preceding Games in Munich, an inquiry was really being undertaken into the hostage-taking on that previous occasion? The answer once again is clearly no.

The same is true for the position of the Commission regarding the events of October 1970 being considered here: it really is not possible to understand the operations undertaken in 1971 and 1972 by the anti-subversive sections of the police forces operating in Quebec without seeing these operations against the background of the situation created by the 1970 October Crisis. The fact that of necessity some reference has to be made to certain aspects of that crisis in order to comprehend subsequent events does not mean that the inquiry is in any way directed at the crisis itself. Anyone who has followed the work of the Commission closely will know that its investigations are systematically carried out: but one may look in vain for any indication of a systematic incursion by the Commission beyond 1971. I therefore wish to say that the Commission is not conducting an inquiry into the events of October 1970. However, it does not consider that these events are covered by a taboo which it may not violate, even if as a result its mandate is not fully performed.

The trial judge concluded in this regard, at p. 24 of his judgment:

[TRANSLATION] The Court was struck with the coherence and relevance of these statements: they are a complete answer to the arguments of applicant.

[…]

In view of all these circumstances, the Court accordingly concludes that respondent Commissioner has certainly not exceeded his jurisdiction by including the terrorist activities and police actions of 1970, 1971 and

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1972 within the scope of his inquiry, inasmuch as they have a clear connection with the specific events described in the Commissioner's mandate.

Turgeon J.A. of the Court of Appeal, whose opinion was concurred in by L'Heureux-Dubé J.A., at p. 326, made the following observation on the arguments presented by appellant:

[TRANSLATION] The judge below demonstrated comprehensively that these allegations have no foundation, and I agree with that part of his judgment without further comment.

That is also my opinion and I would dismiss these arguments.

B.—Appellant raised a further argument, namely that respondent Commissioner's mandate illegally covered specific acts which can only be the subject of a criminal pre-inquiry.

The same argument was raised in Keable No. 1 but it was dismissed by this Court. Paragraphs B-(iv) and B-(v) have since been added to respondent Commissioner's mandate. The activities described in these paragraphs are clearly less specific or more general than the acts mentioned in the other paragraphs and found in Keable No. 1 to be intra vires.

I would also dismiss this argument.

C.—A further argument raised by appellant against respondent Commissioner's mandate is stated in his submission as follows:

[TRANSLATION] The mandate is also ultra vires in that it applies to the acts of peace officers in the exercise of powers, duties, discretions and operations in the investigation of crimes which are determined by criminal law and procedure, which is within federal jurisdiction, and which only the Parliament of Canada can alter if this proves to be necessary.

In his oral argument, counsel for the appellant did not stress this point, which appears to have been raised in this Court for the first time: it is not mentioned by either the Superior Court or the Court of Appeal. Monet J.A., dissenting in the Court of Appeal, even observed at p. 337:

[TRANSLATION] . . . neither the appellant nor Mr. Vignola contests the right of the executive power as such to conduct an inquiry into the police forces.

[page 79]

In any case, this point is without foundation and must be dismissed. The mandate of respondent Commissioner is concerned not with the powers, duties and capacities of peace officers as determined by the criminal law, but with the manner in which they were in fact exercised in the circumstances described in the mandate. These are matters which fall within the administration of justice and which cover the discipline of police forces and their members. Saulnier v. Quebec Police Commission, [1976] 1 S.C.R. 572, is an illustration of this. In Attorney General of Alberta v. Putnam, [1981] 2 S.C.R. 267, this Court held that a province does not have the power to take disciplinary action against R.C.M.P. officers assigned to local police duties, but it implicitly recognized as axiomatic that a province has such a power over provincial and municipal police officers. Dickson J., dissenting, but not on this particular point, wrote at p. 279:

Thus it is clear that the province can appoint, control and discipline municipal and provincial police officers.

By the same reasoning, a province can investigate the allegedly illegal or reprehensible behavior of a police force within its constitutional jurisdiction, as well as the allegedly illegal actions of any peace officer.

(2) Does the mandate contain an unlawful subdelegation of powers?

Finally, appellant disputes the validity of the mandate given to respondent Commissioner on the ground that it is so vague that it constitutes an unlawful subdelegation of the power to define the object of the inquiry.

In particular, appellant submits that the phrases "any previous or subsequent events", "the conduct of all persons involved" and "the methods used ... and the frequency of their use" in the mandate indicate no limit as to time, place or person. The result is, in his submission, that respondent Commissioner is called on to define the object of his mandate himself and to determine the place, the time and the persons who may be the subject of an investigation.

[page 80]

The provisions relating to previous or subsequent events and to the persons involved, together with the provision regarding frequency of use of the methods concerned, were already in the text of the mandate considered by this Court in Keable No. 1, but the argument concerning an unlawful subdelegation of powers is new.

In my opinion this argument cannot be admitted.

The phrases mentioned by appellant only seem vague or imprecise if they are read in isolation from the specific wording of the mandate. However, these phrases cannot be separated from the essential terms of the mandate which are designed to indicate its purpose.

Read as a whole, the mandate makes it clear that respondent Commissioner had no discretion to determine the scope and nature of the principal events which were to be the subject of his inquiry. These specific events are the following:

(1) a search made on the night of October 6 to 7, 1972 at 3459 St. Hubert Street in Montreal;

(2) an illegal entry made during January into the premises of a political party;

(3) setting fire to a farm known as "Petit Québec Libre" at Sainte-Anne de la Rochelle on May 9, 1972;

(4) a theft of dynamite in Rougemont in the spring of 1972;

(5) the recruitment of informers by illegal and reprehensible means;

(6) the preparation, drafting, issuing and distribution of any false communiqués.

In my view appellant is placing undue importance on phrases which he is taking out of their context. It seems to me that the power to inquire into a specific event incidentally but necessarily includes the power to inquire into the actions of persons involved as well as prior and subsequent events which have some connection with the event in question,

[page 81]

I concur on this point with the views expressed by Deschênes C.J. at p. 17 of his judgment, that such phrases should be given the benefit of a reasonable interpretation and read in connection with the rest of the mandate.

I also concur in the opinion of the trial judge and the majority judges on the Court of Appeal that the case at bar can be distinguished from Ratnagopal v. Attorney-General, [1970] A.C. 974, which does not apply here.

In that case, the Judicial Committee of the Privy Council held that the mandate of a commission of inquiry included an unlawful subdelegation of powers to the Commission. This mandate read in part as follows:

(1) Inquiring into, and reporting on, whether, during the period commencing on June 1, 1957, and ending on July 31, 1965, all or any of the following acts or things, hereafter referred to as "abuses", occurred,

[…]

and all such contracts of the description hereinbefore referred to given to contractors whether in consequence of the making of tenders or otherwise, as you the said commissioner may in your absolute discretion deem to be, by reason of their implications, financial or otherwise, to or on the government, of sufficient importance in the public welfare to warrant such inquiry and report (hereafter referred to as "relevant tenders" and "relevant contracts", respectively).

(Emphasis added.)

It can be seen that the wording of this mandate confers almost absolute discretion on the Commission to determine the subject-matter of the inquiry.

That is not the case here. Respondent Commissioner was not given the responsibility of determining the aspects of the administration of justice or the actions involving the use of certain police methods that were to be covered by his inquiry.

I would therefore dismiss the arguments of appellant on this point.

VI—Excess of jurisdiction

 (1) Did respondent Commissioner disqualify himself by his bias or hostility?

Appellant maintained that respondent Commissioner had contravened the principles of natural

[page 82]

justice in the conduct of his inquiry, by demonstrating bias, hostility and a lack of judicial demeanour.

Appellant set out this argument in paragraph 29(c) of his amended application:

[TRANSLATION] 29(c). The respondent disqualified himself by his conduct from carrying out the said inquiry even if he did have jurisdiction to carry it out (which is denied) particularly from insisting on receiving confidential information when the very life of individuals depends upon this confidentiality, and notably in committing flagrant errors of law by his lack of impartiality and judicial demeanour, by his adoption of a conspiracy theory with respect to public authorities and public officers acting in good faith, particularly with respect to security and police services for certain of their members, and by his hostility to them;

After reviewing the oral argument of the November 27, 1979 hearing before respondent Commissioner, the trial judge concluded that this argument was closely linked to the one at the preceding hearing on November 21, and that neither could be assessed apart from the other. The trial judge contacted counsel, who agreed to include in the record the transcripts of the hearing held by the Commission on November 21, 1979.

At page 25 of his judgment, the trial judge found that the question had to be decided on the basis of the events of November 27, seen in the light of those of November 21. He further observed that, in accordance with the rules stated by this Court, applicant had to show the existence of a reasonable fear that respondent Commissioner might not act with impartiality.

After a very detailed analysis of these events, the trial judge dismissed this argument.

The majority opinion of the Court of Appeal on this point can be found at p. 326 of the judgment of Turgeon J.A.:

[TRANSLATION] The facts which give rise to these allegations have been analyzed in detail by the Judge below . . . He correctly stated that in examining these allegations, it is necessary to keep in mind their background. Consideration of these circumstances as a whole

[page 83]

led the Judge below to conclude that the incident was an isolated one which indicated neither bias nor hostility.

While rejecting the allegations of bias and hostility, the Judge found that the Commissioner had shown a temporary loss of equanimity. He could see nothing more in the incident than momentary impatience which he deplored but which certainly did not affect the Commissioner's jurisdiction.

Disqualification does not arise unless there has been a reasonable fear of bias which is not the case here. This test was once again applied by the Supreme Court of Canada in Committee for Justice and Liberty v, National Energy Board, [1978] 1 S.C.R. 369.

That decision states that even if the same rules must be applied to an administrative tribunal as to a judicial tribunal, it is necessary to distinguish cases where the administrative or judicial tribunal exercises a decisional function from those cases where no such function is exercised. This question is dealt with especially by Chief Justice Laskin. The distinction was applied by Cattanach J., of the Federal Court, in a decision relating to the bias of the McDonald Commission: Re Copeland v. McDonald (1979), 42 C.C.C. (2d) 334. The Judge held that the ordinary test for bias did not apply in the same way to a body which did not make decisions but whose function was to make a report.

For the rest, I refer to the detailed decision of the Judge below in this matter.

I find no reviewable error in these reasons. Appellant has not shown that the Court of Appeal and the Superior Court erred in the principles they applied. The application of these principles to the circumstances of the case at bar is largely a matter of judgment and, I say so with respect for the opposing view, appellant did not persuade me that the conclusions reached by the Court of Appeal and the majority in the Superior Court were incorrect.

It remains for the Court to decide whether the fact that respondent Commissioner questioned appellant on the identity of someone whom he believed to be a police informer can be a ground of disqualification, as indicating bias and hostility toward appellant.

[page 84]

I do not think so. I will attempt to show under the next heading that respondent Commissioner did not have the power to ask this question. However, no one has ventured to say that this illegal question was not nevertheless relevant in view of respondent Commissioner's mandate. The latter committed an error of law in attempting, in good faith it must be assumed, to carry out a mandate which covered, inter alia, the recruitment of informers. I do not see how this error of law, also made by three judges, constitutes a demonstration of bias or hostility.

I would dismiss this argument.

(2) Did respondent Commissioner contravene the secrecy rule regarding the identity of police informers?

The final argument put forward by appellant, but according to his counsel the chief argument, is that respondent Commissioner exceeded his jurisdiction in trying to compel him to reveal the identity of a police informer contrary to the common law rule that prohibits a peace officer from being forced to make such a disclosure.

This argument, which was made in both the Superior Court and the Court of Appeal, was dismissed by both courts.

A.—Decisions of the Court of Appeal and Superior Court on the point

In the view of Turgeon J.A. in the Court of Appeal, appellant cannot rely on the common law in view of, inter alia, the provisions of the Code of Civil Procedure, and in particular art. 308 of that Code.

He notes that art. 295 of the Code lays down the rule that all persons are competent to testify. Article 313 attaches a penalty to this rule by its provision that any witness who refuses to answer without a valid reason is guilty of contempt of court. Several articles create exceptions: art. 297, which provides that a bailiff cannot testify as to any facts or admissions which occur after the writ is issued; art. 307, which provides that a person cannot be compelled to disclose any communication made by his or her consort during a marriage; s. 9 of the Charter of human rights and freedoms,

[page 85]

1975 (Que.), c. 6, regarding professional secrecy, which until this Act was adopted was contained in part in art. 308 of the Code of Civil Procedure; and finally, the latter provision, which now states:

308. Similarly, government officials cannot be obliged to divulge what has been revealed to them in the exercise of their functions provided that the judge is of the opinion, for reasons set out in the affidavit of the Minister or deputy-minister to whom the witness is answerable, that the disclosure would be contrary to public order.

These exceptions, Turgeon J.A. notes, are the only ones permitted by Quebec law to the rule that everyone is compellable as stated in the Code of Civil Procedure, which is a complete Code. In his opinion, a police officer is a government official within the meaning of art. 308, and in the absence of any sworn objection by the Attorney General, respondent Commissioner may, under his power of inquiry and within the limits of his mandate, hear testimony regarding the identity of police informers.

L'Heureux-Dubé J.A. concurred with Turgeon J.A., but she wrote supporting reasons. In her view the Code of Civil Procedure has codified the common law regarding all matters in which there may be a public interest requiring that they not be disclosed in court, including the secrecy rule regarding police informers. In her opinion, art. 308 of the Code of Civil Procedure has a function similar to that of s. 41 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, then in force, regarding the disclosure of documents. This codification fixed the ambit of the common law rule and the manner of its exercise: accordingly, it can now only be applied in accordance with the Code.

The Court of Appeal had already reached conclusions similar to Turgeon and L'Heureux-Dubé JJ.A. in R. v. Samson (1977), 35 C.C.C. (2d) 258, a criminal matter in which art. 308 of the Code of Civil Procedure had been applied in view of the reference made by s. 37 of the Canada Evidence Act, R.S.C. 1970, c. E-10, to laws of evidence in force in the province in which the proceedings are taken. It may be noted in passing that this opinion

[page 86]

is difficult to reconcile with that of this Court in Marshall v. The Queen, [1961] S.C.R. 123.

The trial judge did note, at p. 22 of his judgment, the absence of any objection by the Attorney General under art. 308 of the Code of Civil Procedure: but he did not enlarge on this point. He went on to make another argument at pp. 21-22:

[TRANSLATION] To suggest that sources of information are secret is to contest the validity of the inquiry itself and to deny the right of the Government to establish it.

[…]

Along with the Courts, it is the Government, and more specifically, the Attorney General, who is the guardian of public order and the interpreter of the public interest. When the Government orders an inquiry into police forces, it is not for the latter to contrast their conception of the public interest with the Commissioner's terms of reference.

Applicant argued that the Commissioner is limited to "lawful means". He therefore cannot require a police officer to disclose his information sources, to which the law attaches a privilege of confidentiality.

This is a misunderstanding of the institution. There is no legislative provision creating such a privilege. It is a judicial creation which is subject to strict limitations of public interest and to which there are exceptions.

I repeat that the inquiry presided over by the respondent was guided by the public interest; this same public interest cannot therefore be invoked to support a privilege which constitutes an exception to the general law of evidence. In these circumstances, the interrogation conducted by the respondent-Commissioner was not at all illegal and a common law privilege cannot be invoked to fetter or restrain the course of his inquiry.

At pages 323 and 334, Turgeon and L'Heureux-Dubé JJ.A. also dealt with this argument. L'Heureux-Dubé J.A. did so as follows:

[TRANSLATION] Were it necessary to accept the appellant's argument that the common law rule relating to the privilege of non-disclosure of police information sources exists in our public law to the extent which he suggests—which I do not believe to be the case—still, it would have to be recognized that the appellant could not successfully invoke the privilege.

In my view, and here I agree with what was said by the Judge below, this inquiry was established by a

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democratically-elected Government acting within the limits of its powers and its competence with respect to the administration of justice. It seems to me legitimate that, at a certain point, the administration of justice of a Province should require an examination into the conduct of the provincial police force relating to specific events. I believe that the notion of public interest forms the basis for the common law privilege and cannot be given primacy here over the public interest which formed the basis for the inquiry being conducted by the respondent-Commissioner.

Monet J.A. dissented chiefly on the ground that the common law rule against judicial disclosure of the identity of police informers can only be repealed expressly, and this was not done. At page 336, he wrote:

[TRANSLATION] Except where a statute, adopted by the competent legislative authority, has abrogated or completely removed such a rule in an express and unequivocal fashion, I am of the view that it is still part of our public law. Moreover, no such statute has been cited to us. And, so far as I know, the Supreme Court of Canada has not abolished this rule, and there are numerous decisions of Courts in this country to the same effect.

Monet J.A. answered the argument based on the primacy of the public interest as determined by the executive, which was cited by the trial judge and adopted by the majority of the Court of Appeal, as follows at p. 337:

[TRANSLATION] ... an order (it matters little whether it be called an order in council, a ministerial order or otherwise) is merely an executive order. It is not a statute emanating from the legislative power and it does not have legislative effects. The Judge below also said as follows:

I repeat that the inquiry presided over by the respondent was guided by the public interest; this same public interest cannot therefore be invoked to support a privilege which constitutes an exception to the general law of evidence.

This statement, which was, I am sure, made with the best of intentions, on the one hand misunderstands a fundamental rule of public law which is every bit as important as the general rule of "compellability" in private law, and on the other hand, lacks a legal basis in our system of division of powers. I say this, of course, with the greatest of respect for those who hold the contrary opinion.

[page 88]

I share the view of Monet LA. on both points. In my opinion the Quebec legislature did not, in enacting art. 308 of the Code of Civil Procedure, intend to abrogate or limit the secrecy rule regarding the identity of police informers. I also consider that the legislature cannot constitutionally abrogate or limit this rule, and that its statutes must therefore be interpreted accordingly, all the more so since they contain no express provision on the point.

In order to demonstrate the two propositions which I have just put forward, it is necessary to determine as precisely as possible the real nature and scope at common law of the secrecy rule regarding police informers' identity and the specific set of legal provisions which govern its application.

B.—Nature and scope of the rule at common law: specific legal status of the rule

This Court has just had occasion to review the question in Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494 (hereinafter referred to as the Health Records case), which was decided after the judgment of the Court of Appeal in the case at bar. I think it is appropriate not only to refer to this case but to cite significant portions of it.

At page 525 Martland J., writing for the majority, defined the question at issue:

The issue which is raised is as to whether officers of the Royal Canadian Mounted Police can be compelled to disclose to a Royal Commission appointed under The Public Inquiries Act, 1971, 1971 (Ont.), c. 49, the identities of persons, to whom an assurance of confidentiality was given, from whom they have obtained information, while acting in the course of their duties in connection with the investigation of crime or national security.

Martland J. goes on to say, at pp. 527 et seq.:

The law has recognized for many years the existence of a "police-informer" privilege. It was described by Lord Esher in the leading case of Marks v. Beyfus (1890), 25 Q.B.D. 494, at p. 498, as being a rule of public policy that is not a matter of discretion: "it is a

[page 89]

rule of law, and as such should be applied by the judge at the trial, who shall not treat it as a matter of discretion whether he should tell the witness to answer or not".

Similarly, Lord Diplock in the case of D. v. National Society for the Prevention of Cruelty to Children, hereinafter referred to as the N.S.P.C.C. case, [1978] A.C. 171, at p. 218, referred to "the well established rule of law that the identity of police informers may not be disclosed in a civil action, whether by process of discovery or by oral evidence at the trial". He cited Marks v. Beyfus.

The existence of the rule was recognized as early as 1794 in The Trial of Thomas Hardy for Treason (1794), 24 St. Tr. 199.

[…]

This rule of law was followed in R. v. Watson (1817), 32 St. Tr. 1, at p. 101 and in R. v. O'Connor (1846), 4 St. Tr. (N.S.) 935, at p. 1050. In Attorney-General v. Briant (1846), 15 M. & W. 169, 15 L.J. Ex. 265, Pollock C.B. was faced with the issue of whether a witness could be asked if he was himself the informer. At p. 274, Pollock C.B. resolved the issue in the following terms:

There is no direct authority either way; but the rule clearly established and acted on is this, that in a public prosecution a witness cannot be asked such questions as will disclose the informer, if he be a third person. This has been a settled rule for fifty years; and although it may seem hard in a particular case, private mischief must give way to public convenience. That is the ground on which the decision took place in Hardy's case and in Watson's case; and, we think, the principle of the rule applies to a case where the witness is asked, if he himself is the informer; and, therefore, that the question could not be asked, and that the rule must be discharged.

The issue of disclosure had arisen in these cases in the course of a public prosecution. In Marks v. Beyfus the court was considering a civil claim for damages for malicious conspiracy to prosecute the plaintiff. The plaintiff called as a witness the Director of Public Prosecutions who testified that a statement in writing had been supplied to him. He declined to give the name of the informant or to produce the written statement. The trial judge refused to order him to answer the question or to produce the statement. On appeal, the plaintiff contended that the prosecution was a private prosecution and argued that the ruling was erroneous.

[page 90]

The ruling was upheld by the Court of Appeal. Lord Esher said at pp. 498-99:

Now, this rule as to public prosecutions was founded on grounds of public policy, and if this prosecution was a public prosecution the rule attaches; I think it was a public prosecution, and that the rule applies. I do not say it is a rule which can never be departed from; if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to shew the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail. But except in that case, this rule of public policy is not a matter of discretion; it is a rule of law, and as such should be applied by the judge at the trial, who should not treat it as a matter of discretion whether he should tell the witness to answer or not. The learned judge was, therefore, perfectly right in the present case in applying the law, and in declining to let the witness answer the questions. The result of his so deciding was, of course, that the plaintiff's cause of action, which was founded on the alleged instigation of the Director of Public Prosecutions by the defendants, failed, for there was no evidence of any such instigation.

I may add that the rule as to non-disclosure of informers applies, in my opinion, not only to the trial of the prisoner, but also to a subsequent civil action between the parties on the ground that the criminal prosecution was maliciously instituted or brought about.

At page 530, Martland J. notes that Marks v. Beyfus was adopted by the Ontario Court of Appeal in Humphrey v. Archibald (1893), 20 O.A.R. 267, a passage of which he cites, and he goes on, at pp. 531 et seq.:

I do not agree with the suggestion that the police-informer rule, which has been stated to be a rule of law, should be limited in its application to criminal prosecutions and civil proceedings founded upon malicious prosecutions. If it is applicable in civil proceedings arising out of a malicious prosecution, there is no logical reason why it should not also be applicable in other civil proceedings. The public policy which gave rise to the

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rule is the same, no matter what form the civil proceedings take.

I do not interpret the words of Lord Esher in Marks v. Beyfus when he said that the rule should be applied in a civil action founded on the malicious institution of a criminal prosecution as meaning that it would be inapplicable in other civil proceedings. His statement related to the nature of the case which was before him and he did not need to go further than he did.

A quotation from Lord Diplock in N.S.P.C.C. follows. Referring to the latter case, Martland J. writes:

The judgment of the House of Lords in that case establishes that the rule that the identity of police informers may not be disclosed applies in civil actions. I have already cited earlier in these reasons Lord Diplock's statement to that effect.

After describing the facts in N.S.P.C.C., Martland J. discusses at p. 533 the decision of the House of Lords:

Four of the five Law Lords reached their decision on a different ground. Their view was that a similar immunity from disclosure of identity in civil proceedings should be extended to those who give information about neglect or ill-treatment of children to a local authority or the N.S.P.C.C. as is accorded to police informers, the public interests served by preserving the anonymity of both classes of informants being analogous.

The following passages from the judgment of Lord Diplock, at pp. 218 and 219, show that the rule as to non-disclosure of the identity of a police informer is an established rule of law:

The public interest which the N.S.P.C.C. relies upon as obliging it to withhold from the plaintiff and from the Court itself material that could disclose the identity of the society's informant is analogous to the public interest that is protected by the well established rule of law that the identity of police informers may not be disclosed in a civil action, whether by the process of discovery or by oral evidence at the trial: Marks v. Beyfus (1890) 25 Q.B.D. 494.

The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police

[page 92]

informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v. Beyfus, 25 Q.B.D. 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.

[…]

For my part I would uphold the decision of Croom-Johnson J. and reverse that of the Court of Appeal. I would do so upon what in argument has been referred to as the "narrow" submission made on behalf of the N.S.P.C.C. I would extend to those who give information about neglect or ill-treatment of children to a local authority or the N.S.P.C.C. a similar immunity from disclosure of their identity in legal proceedings to that which the law accords to police informers. The public interests served by preserving the anonymity of both classes of informants are analogous; they are of no less weight in the case of the former than in that of the latter case, and in my judgment are of greater weight than in the case of informers of the Gaming Board to whom immunity from disclosure of their identity has recently been extended by this House.

(The case to which Lord Diplock refers is Rogers v. Home Secretary [1973] A.C. 388 ...)

Martland J. notes that the Ontario Court of Appeal has again recognized the police informers rule in Reference re Legislative Privilege (1978), 39 C.C.C. (2d) 226, some extracts from which he cites. He goes on to say:

In the N.S.P.C.C. case all of the four Law Lords whom I have mentioned were of the view that had the information which was given to the N.S.P.C.C. been given to a constable he could not be required to disclose the identity of the informant. The proceedings in question were civil proceedings and not related to any criminal prosecution. In my opinion, the immunity from disclosure which is accorded in relation to information furnished to the police in the course of the performance of their duties is general in its scope. This has become recognized as a rule of law with only one recognized exception, namely, that referred to by Lord Diplock .. .

[page 93]

Finally, before concluding Martland J. writes, at p. 539:

In the present case, the identity of the public informers is being sought, not by an accused person or a litigant in civil proceedings, but is being sought by the tribunal itself which summoned the police witnesses in order to obtain such disclosure but, in my opinion, the fact that it is the tribunal itself which seeks the information does not affect the application of the rule. The Public Inquiries Act, 1971 does not confer on the Commissioner any wider powers than those which may be exercised, on application of a party, by a judge conducting judicial proceedings. The police-informer privilege is not in any way diminished by any provision of The Public Inquiries Act, 1971. On the contrary, s. 11 of the Act specifically provides that nothing is admissible in evidence at any inquiry that would be inadmissible in a court by reason of any privilege under the law of evidence.

It follows from these reasons that at common law the secrecy rule regarding police informers' identity has chiefly taken the form of rules of evidence based on the public interest, which prohibit judicial disclosure of police informers' identity by peace officers who have learned the informers' identity in the course of their duties. A witness also may not be compelled to state whether he is himself a police informer. The rule was developed in criminal proceedings, apparently in trials for high treason, but it also applies in civil matters, and in both cases it has been established for reasons which relate to the essential effectiveness of the criminal law. The rule is subject to only one exception, imposed by the need to demonstrate the innocence of an accused person. There are no exceptions in proceedings other than criminal. Its application does not depend on the judge's discretion, as it is a legal rule of public order by which the judge is bound.

It should also be mentioned that its application is not subject to any formal requirement and, if no one raises it, the Court must apply it of its own motion. In Marks v. Beyfus, Bowen L.J., concurring with Lord Esher M.R., added to the reasons of the latter at p. 500:

I entirely agree that such a matter as this is not one for the exercise of the judge's discretion, but for the application of the law; the privilege does not depend on the

[page 94]

witness claiming it when asked the question; but the judge should refuse to allow the question as soon as it is asked.

Lord Esher went on to say in conclusion:

I desire to say, so that there shall be no possibility of mistake as to my opinion, that even if the Director of Public Prosecutions had been willing to answer the questions put to him the judge ought not to have allowed him to do so.

In Rogers v. Home Secretary Lord Simon of Glaisdale wrote at p. 407:

It is true that the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant material (Rex v. Hardy (1794) 24 St. Tr. 199, 808; Marks v. Beyfus (1890) 25 Q.B.D. 494; Conway v. Rimmer [1968] A.C. 910); but once the former public interest is held to outweigh the latter, the evidence cannot in any circumstances be admitted. It is not a privilege which may be waived by the Crown (see Marks v. Beyfus at p. 500) or by anyone else.

In the Health Records case, Martland J. wrote at p. 538 that the privilege in question is not given to the informer, and the latter's misconduct therefore does not destroy the privilege: the privilege is that of the Crown, which is in receipt of information under an assurance of secrecy. It should not be inferred that the Crown or the prosecutor can, at common law, without the police informer's consent, waive the principle either expressly or by implication by not raising it: Martland J. cites several cases showing that the rule, based on the public interest, is beyond any discretionary power; he clearly did not mean to say that the prosecution can waive the rule in a given case, rather that the exclusionary rule exists in the public interest.

The exclusionary rule was not recognized in the interests of police informers, but it in fact protects each of them. The question then arose whether the informer can himself waive the exclusionary rule which protects him, as for example by revealing his identity. In his treatise Evidence in Trials at Common Law, vol. 8, revised by John T.

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McNaughton, 1961, at p. 766, Wigmore states: "If the identity of the informer is admitted [...], then there is no reason for pretended concealment of his identity". If that is so, it is not an exception to the rule but a situation where, as Wigmore points out, the reason for the rule no longer exists, as other police informers, knowing that the disclosure was made by the informer himself or with his consent, would no longer feel threatened. Even then, I am far from being convinced that a peace officer could be asked to provide confirmation, as that would mean weakening a rule which should remain firm. That at all events is not the case here, since the record does not show that the person identified by respondent Commissioner as an informer agreed to this disclosure.

What is more relevant to the facts of the case, counsel for the respondent argued, is that respondent Commissioner knew that the person in question was an informer. Counsel drew the attention of the Court to the fact that Wigmore also mentions, again on p. 766, that if the informer's identity is known, there is no longer any reason to justify the exclusionary rule.

In my opinion this further rule adumbrated by Wigmore is too vague to be followed, but in any case I do not think it applies to the case at bar. All that the record shows, and all that can be assumed, is that respondent Commissioner believed that the person designated by him was a police informer. However, we do not know if this belief was correct. What respondent Commissioner was seeking was unquestionably evidence that his conclusion was correct. What better proof could he obtain, if this was so, than a confirmation by the police officer who allegedly controlled this informer? It would seem, therefore, that respondent Commissioner clearly contravened the secrecy rule regarding police informers' identity, in so far as this rule is still part of Quebec law in its original form.

The secrecy rule regarding police informers has chiefly taken the form of rules of evidence in criminal and civil proceedings, but it can be said that the rule gives rise to rules of another kind,

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which impose duties on a peace officer. If the law prohibits a peace officer from disclosing an informer's identity in judicial proceedings based on the public interest which it considers to be superior to that of the administration of justice by the Court, a fortiori it does place on him a duty to maintain confidentiality outside of any judicial proceedings, when the administration of justice by the courts is not in issue. I would accordingly have no difficulty in finding, although I know of no precedent on the point, that a peace officer who for example gave the media a list of his informers would be liable to severe disciplinary action and could be made to pay damages. The question might even arise whether such a peace officer was not, depending on the circumstances, committing the indictable offence of obstructing justice under s. 127(2) of the Criminal Code.

Finally, I consider that there is a third aspect to the secrecy rule regarding police informers linked to the peace officer's status. I will return to this in the last part of this heading.

The secrecy rule regarding police informers' identity has been confused with Crown privilege, but this in my view is a mistake.

The reason for the mistake may be that the secrecy rule regarding police informers' identity and Crown privilege have several points in common: in both cases relevant evidence is excluded in the name of a public interest regarded as superior to that of the administration of justice; in both cases the secrecy cannot be waived; finally, in both cases it is illegal to present secondary proof of facts which in the public interest cannot be disclosed. However, these points in common should not be allowed to hide the specificity of the set of common law provisions applicable to secrecy regarding police informers' identity, which distinguishes it from the set of rules governing Crown privilege.

In both cases, it is the public interest which makes secrecy necessary, but this public interest, which takes priority over that of the administration

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 of justice, differs depending on whether Crown privilege or secrecy regarding police informers' identity is concerned. The public interest which is the reason behind the Crown privilege lies either in national security or in the effective conduct of government. The public interest which requires secrecy regarding police informers' identity is the maintenance of an efficient police force and an effective implementation of the criminal law.

In addition, the kind of secrecy affects procedure. There is no question of a sworn statement by the Minister involved as a basis for secrecy regarding police informers' identity. There is also no question of the Court itself examining what is secret to decide whether it should be disclosed, or for example inspecting a list of informers to determine whether producing it would be contrary to the public interest.

However, what is of primary importance is the reason why the procedure differs, or more specifically, the reason why application of the rule regarding police informers is not, unlike Crown privilege, subject to any kind of procedure.

The Crown has a vast store of information and its interest in keeping this secret may be infinitely variable depending on the type of information or documents and their content. There are cases in which the information is not confidential or its confidential nature is of minor importance from the standpoint of the public interest. There are cases in which the public interest obviously demands secrecy; and there are borderline cases. The common law allows a member of the executive to make the initial decision; if he decides in favour of secrecy and states his reason for doing so in a sworn statement, the law empowers the judge to review the information and in the last resort to revise the decision by weighing the two conflicting interests, that of maintaining secrecy and that of doing justice.

This procedure, designed to implement Crown privilege, is pointless in the case of secrecy regarding a police informer. In this case, the law gives

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the Minister, and the Court after him, no power of weighing or evaluating various aspects of the public interest which are in conflict, since it has already resolved the conflict itself. It has decided once and for all, subject to the law being changed, that information regarding police informers' identity will be, because of its content, a class of information which it is in the public interest to keep secret, and that this interest will prevail over the need to ensure the highest possible standard of justice.

Accordingly, the common law has made secrecy regarding police informers subject to a special system with its own rules, which differ from those applicable to Crown privilege.

Unless overturned by validly adopted statutory provisions, these common law rules must be applied in an inquiry into the administration of justice, which is thus a matter of public law. Moreover, the point at issue concerns the power to compel a witness to answer, by contempt of court proceedings if necessary, the source for which is also the common law: Langelier v. Giroux (1931), 52 Que. K.B. 113; Lamb v. Benoit, [1959] S.C.R. 321, at p. 328; Cotroni v. Quebec Police Commission, [1978] 1 S.C.R. 1048, at p. 1057; Canadian Broadcasting Corporation v. Quebec Police Commission, [1979] 2 S.C.R. 618, at p. 644.

C. Has the Code of Civil Procedure altered the secrecy rule regarding police informers' identity?

Article 275 of the Code of Civil Procedure, which came into effect on June 28, 1867, provided:

275. He [the witness] cannot be compelled to declare what has been revealed to him confidentially in his professional character as religious or legal adviser, or as an officer of state, where public policy is concerned.

This provision was reproduced verbatim in the second Code of Civil Procedure, that of 1897, in which it was art. 332, and it has been interpreted by the Quebec Court of Appeal in Minister of

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National Revenue v. Die-Plast Co., [1952] Que. K.B. 342. The Court held that employees of the Department of National Revenue cannot be compelled to disclose information obtained by them in the course of their duties regarding the existence of a lease nor to produce documents in this connection. It was the taxpayer who wanted this evidence to be presented, but the Deputy Minister objected by a sworn statement, supported by a sworn statement of the Minister, on the ground that it would be contrary to the public interest to produce these documents or present the oral testimony requested. The Court of Appeal held the Deputy Minister was solely responsible for deciding whether the disclosure was contrary to the public interest, and that the Superior Court erred in going beyond the statement of the Deputy Minister and reviewing it. The Court of Appeal relied inter alia on a judgment it rendered before the codification, Gugy v. Maguire (1863), 13 L.C.R. 33, which refers to the common law. Meredith J. wrote, at pp. 51-52:

The Judges of this Court are all, I believe, agreed in the opinion, that the Head of a Department of state cannot be compelled, at the instance of a private suitor, to produce an official document in his custody, when the production of the document would, on grounds of public policy, be inexpedient.

The question then arises: with whom does it rest to determine whether the production of a particular document is, on such general grounds, inexpedient?-The majority of the Court hold that the Head of the Department having official custody of the paper is necessarily the proper person to determine the question, while one of the members of the Court, (M. Justice Mondelet) maintains that it must be determined by the judge.

The general principles of law as well as the decisions of the Courts, both in England and the United States, appear to me to be entirely in favour of the opinion of the majority of the Court.

Several cases have followed this judgment: Alain v. Belleau (1897), 1 Q.P.R. 98; Hébert v. Latour (1913), 15 Q.P.R. 5; Rhéault v. Landry (1918), 55 C.S. 1 and Boyer v. Boyer, [1946] R.P. 174.

Thus, in Minister of National Revenue v. Die-Plast Co., the Court of Appeal followed on the merits the rule of constitutional law stated by the

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House of Lords in Duncan v. Cammell, Laird and Co., [1942] A.C. 624, to which it referred.

From the standpoint of procedure it will also be noted, although the Code of Civil Procedure had no provision on the point at that time, that the executive formulated its objection to the judicial disclosure of confidential information or documents by a sworn statement of a senior official or the Minister who is responsible for the officials who are to be questioned. Such statement however, would give few details of the reasons why judicial disclosure of the information requested would be contrary to the public interest. Nevertheless, the custom of a sworn statement by the Minister was not invariable. Thus, in Alain v. Belleau the official in question was allowed to certify that the Postmaster General had been consulted and objected to his deposition. In Rhéault v. Landry it was stated that the Minister did not have to give reasons for his objection, did not have to testify, and the subordinate official's statement would suffice regarding the instructions he received.

In 1958, by the Act to amend the Code of Civil Procedure, 1957-58 (Que.), c. 43, s. 2, the Legislature added the following paragraph to art. 332:

The same shall apply to any member, officer or employee of a commission, board or other body the members of which are appointed by the Lieutenant-Governor in Council, whenever the Attorney-General or Solicitor-General of the Province certifies, by a writing in the possession of the witness, who must produce the same, that public order is involved in the facts concerning which it is desired to examine him.

This provision was considered by this Court in Gagnon v. Commission des Valeurs Mobilières du Québec, [1965] S.C.R. 73, where the Court rejected on the ground that it was insufficient a sworn statement by the Quebec Attorney General that it was [TRANSLATION] "in the public interest that the facts and documents obtained in the course of inquiries conducted by the Quebec Securities Commission not be disclosed"; however, Fauteux J., as he then was, who wrote the reasons for the majority, suggested obiter at pp. 78 and 79 that, contrary to what was held in Duncan v.

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Cammell, Laird and Co., at common law it is the judiciary, not the executive, which in the final analysis decides whether certain documents will be produced.

Finally, on September 1, 1966 the existing Code of Civil Procedure came into effect: art. 308, as amended by the Charter of human rights and freedoms, and which I feel is worth citing again:

308. Similarly, government officials cannot be obliged to divulge what has been revealed to them in the exercise of their functions provided that the judge is of the opinion, for reasons set out in the affidavit of the Minister or deputy-minister to whom the witness is answerable, that the disclosure would be contrary to public order.

The Commissioners for the codification commented on this provision:

Moreover, paragraph 3 of the suggested draft defines the privilege of the officer of state. Under the existing texts, it is sufficient that a minister of the Crown declare that the subject on which the officer of state is being questioned is of public order, in order for the latter to be dispensed from answering. In order to avoid the possible arbitrary character of such a procedure, the suggested text obliges the minister to motivate his objection and gives to the judge the power to decide whether or not it is well founded. This formula seems to be the one most likely to reconcile the various interests involved.

In light of these provisions, which she cited and commented on, L'Heureux-Dubé J.A. concluded, at p. 332:

[TRANSLATION] ... in Quebec the Code of Civil Procedure has codified the common law rule concerning the privilege of non-disclosure of information sources.

In my view, with respect, the Code of Civil Procedure in art. 308 has done nothing of the kind.

I do not dispute that art. 308 is a codification of the common law, as is s. 41 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, then in force, subject to the special features of the latter provision, which is limited to the production of documents and which resolves in a slightly different manner the question of whether the executive or judiciary is supreme: my brother Chouinard J., who wrote the unanimous reasons of the Court in Commission des droits de la personne v. Attorney

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General of Canada, [1982] 1 S.C.R. 215, recognized this at pp. 225 and 226. What is to be determined here, however, is the scope of this codification.

The way I see it, art. 308 was intended to solve two problems.

First, it recognized the supremacy of the judiciary over the executive as regards the priority that must be given to either Crown privilege or the administration of justice, in the event of a conflict between them. The Quebec legislator thus adopted the constitutional rule which this Court had indicated a preference for in R. v. Snider, [1954] S.C.R. 479, and Gagnon v. Commission des Valeurs Mobilières du Québec, and it rejected the solution adopted by the Quebec Court of Appeal in Minister of National Revenue v. Die-Plast Co. and by the House of Lords in Duncan v. Cammell, Laird and Co. before the latter changed its opinion in Conway v. Rimmer, [1968] A.C. 910.

Second, article 308 of the Code of Civil Procedure ratifies, for cases where it is appropriate, the procedure of an affidavit of the Minister which had often been used in practice in claiming Crown privilege, and which had already been outlined in the paragraph added to art. 332 in 1958.

However, in my opinion the scope of this codification is limited to these two aspects which it mentions expressly: it does not extend to the secrecy rule regarding police informers' identity, as to which it is silent. In other words, the codification of art. 308 applies only to the part of the common law which is included in the law on Crown privilege, but not to the specific legal system relating to the secrecy rule regarding police informers.

The law had itself decided that it is always contrary to the public interest for a peace officer to be required to disclose the identity of a police informer, and that this aspect of the public interest must always take precedence over the need to do more complete justice, subject to a single exception in criminal law. To decide as the Court of Appeal

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did would mean that by adopting such a general provision as art. 308, the legislator intended simply to obliterate this final judgment made by the law and the absolute rule which results from it, and to substitute a decision-making power which ministers, deputy ministers and judges had in another area where the subject-matter was suited to such a power, but which they have never had in this area, where it was not appropriate.

In my view,. art. 308 of the Code of Civil Procedure is nowhere near specific enough to have such a result and it has in no way affected the secrecy rule regarding police informers. This rule accordingly contines [sic] to be part of Quebec law. It follows that no affidavit by a minister or deputy minister was necessary in the case at bar for secrecy to be preserved. If there had been such an affidavit it would not have given respondent Commissioner any reviewing power, even in my view if the latter had been a superior court, which is not the case: see Keable No. 1 at pp. 249-50.

It therefore follows that respondent Commissioner exceeded his jurisdiction by contravening a rule of law which is part of Quebec law.

(As may be apparent, I have assumed for the purposes of discussion that a peace officer can be considered a public official within the meaning of art. 308, but I refrain from expressing any opinion on the point.)

Counsel for respondent Commissioner argued that respondent Commissioner would be rendered powerless if he could not force peace officers to disclose the identity of police informers, and he would be unable to carry out a part of his mandate. This argument was also made by the trial judge and the Court of Appeal, and Monet J.A. correctly answered it by saying that the executive cannot change the law by a mandate. Furthermore, respondent Commissioner's mandate does not expressly direct him to obtain the identity of police informers. There is no question that respondent Commissioner is limited in his methods of inquiry by the secrecy rule regarding police informers, but it does not appear manifest to me

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that he is rendered powerless, as is indicated by the quantity of information obtained by the Inquiry Commission mentioned in the Health Records case. In any event, it is for the Lieutenant-Governor in Council to determine whether the inquiry should continue with the limited means which the law imposes on a commissioner.

D.—Can the legislature of Quebec constitutionally alter the secrecy rule regarding police informers' identity?

Neither the Superior Court nor the Court of Appeal expressed any opinion on the point, though it appears to have been mentioned in the Court of Appeal since Monet J.A. wrote at p. 335:

However, if the appellant's argument, supra, does in some sense pose a genuine issue in the present case, and if it is well-founded, the other arguments, formulated as follows, must be considered also (pp. 5 and 6):

(…)

Accordingly, it is submitted that only the Parliament of Canada, by virtue of its exclusive jurisdiction over criminal law and criminal procedure, can override this principle if it deems it appropriate to do so, or establish exceptions other than those recognized by the courts.

The second question approved by order of the Chief Justice concerns this constitutional question, which was discussed before this Court. I think an answer should be given; but this second question is stated in very general terms.

Accordingly, I think it is appropriate to take a more concrete approach to the second question overall, by asking whether the legislature could amend art. 308 of the Code of Civil Procedure by, for example, inserting after the words "officer of state" the following words: "and the peace officer may not be compelled to disclose the identity of police informers which has been revealed to him in the course of his duties". The provision would then have expressly the implied meaning erroneously attributed to it by the Court of Appeal.

In Re Inquiry into the. Confidentiality of Health Records in Ontario (1979), 98 D.L.R. (3d) 704, a decision reversed by this Court in the Health

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Records case, Brooke J., dissenting, wrote at p. 714:

I doubt that the provincial Legislature is competent to pass legislation making admissible evidence of the identity of persons who give information to the police in the course of their investigation into crime or national security and so to displace the privilege of the Crown in that regard.

In my opinion, this doubt was fully justified.

As I mentioned above, the secrecy rule regarding police informers' identity has given rise to several rules of varying types. Some are rules of evidence, in criminal, civil or administrative proceedings. Others impose duties of discretion on a peace officer, aside from any legal proceedings.

However, the rule also has a third aspect which is particularly important for constitutional purposes.

The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange for this promise information without which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed.

The common law did not give a peace officer this right simply because it would be useful to him, but because it concluded empirically that the right was necessary. It is certainly not possible to go so far as to say that, without this right, a peace officer would be entirely powerless and the criminal laws would be totally ineffective. However, the inability of the one to act and the ineffectiveness of the other would reach a point where they could no longer be tolerable. This is what Lord Simon of Glaisdale is referring to when he writes in N.S.P.C.C., at p. 232:

Another facet is effective policing. But the police can function effectively only if they receive a flow of intelligence about planned crime or its perpetrators. Such intelligence will not be forthcoming unless informants are assured that their identity will not be divulged . . .

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Haines J. of the Supreme Court of Ontario also properly recognized this in R. v. Lalonde (1971), 15 C.R.N.S. 1, at p. 13:

Over and above all of this is the recognition that without our citizens giving information to the police the investigation of a crime would be seriously impaired or even defeated. Without witnesses our courts could not function. Those who know of material facts should be able to disclose them to the police with the assurance that they will be treated in confidence. In an aggressive community fear of retaliation can be very real.

This power of giving an assurance of secrecy is part of the range of means with which a peace officer is equipped by the criminal law, such as the power of making an arrest without a warrant and the power of search and seizure under ss. 450 and 443 et seq. of the Criminal Code; it partakes of the nature of these methods and, like them, it is closely associated with the status of a peace officer.

In view of the many facets of the secrecy rule regarding police informers and the diversity of the legal rules resulting from it, it might at first sight be thought that this rule has several aspects, some under federal and others under provincial jurisdiction: Hodge v. The Queen (1883), 9 App. Cas. 117; Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396; O'Grady v. Sparling, [1960] S.C.R. 804. Thus, to the extent that it results in a rule of evidence for criminal proceedings, the rule undoubtedly falls within the exclusive jurisdiction of the federal Parliament under s. 91(27)  of the Constitution Act, 1867 . It also falls within the primary, or in any case the secondary and ancillary, jurisdiction of Parliament over the criminal law to the extent that it provides an essential support for a peace officer's power to investigate and is thus associated with the latter's status under the criminal law. In addition, the same rule would seem to be within the jurisdiction of provincial legislatures to the extent that it gives rise to a rule of evidence in civil proceedings. If that is so, however, the federal Parliament might constitutionally trench on this area incidentally by imposing the rule even in civil proceedings, either as an incidental attribute to the status of peace officer, which follows the latter whatever the proceedings in which he is testifying, or to ensure the

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essential effectiveness of its statutes regarding criminal law.

On further analysis, however, it will be seen that the rule in question is difficult to reconcile with the multi-aspect theory, at least as regards whether a peace officer can be compelled by the Court to disclose his informer's identity. This irreconcilability results from the indivisible nature of the secrecy which the rule is intended to protect and the essential singleness of the reason underlying the rule, which is the same in criminal and in civil proceedings. In concreto it is not possible, on the ground that provincial laws require it, to disclose a secret which appears to be covered by certain aspects of provincial jurisdiction, without at the same time disclosing it entirely, though rules subject to federal jurisdiction prohibit disclosure. Let us assume that in a civil matter, as I suggested above, the Constitution allows provincial legislatures to abrogate or limit the exclusionary rule of evidence in question. A situation might then arise in which a peace officer who was prohibited from disclosing a police informer's identity in a criminal proceeding might be compelled to reveal the name of the same informer in a civil trial. Additionally, the situation might vary from one province to another as a result of differences in provincial laws. The basis of the federal rule would then be destroyed by the provincial law. A police informer whose identity could be disclosed in a non-criminal proceeding would no longer be likely to assist the police. The peace officer's powers of investigation would be directly impaired and the effectiveness of criminal statutes compromised accordingly.

If, therefore, the secrecy rule regarding police informers' identity must be considered an indivisible whole in constitutional terms, it must be classified according to its salient characteristics. Whether one considers the historical origins of the rule, the basis for it, its direct connection with a peace officer's status or powers or the rules of

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evidence which result from it in a criminal proceeding, and the one exception to it, in my opinion these salient characteristics make it a rule of criminal law.

Moreover, if provincial legislation having the effects which the Court of Appeal attributed to art. 308 of the Code of Civil Procedure were constitutionally possible on the assumption that the field was not occupied, the position would be different when it is occupied by legal rules falling under federal jurisdiction, with which such legislation would be in conflict, as I indicated above, in terms of the indivisible nature of the rule regarding police informers. In my view, these conflicts suffice to make such legislation inoperative, as they go to the root of the policy on which the rule is based.

It is true that the federal Parliament has not given legislative form to the secrecy rule regarding police informers' identity. Section 41 of the Federal Court Act, in force at the relevant time, in my view, has no bearing on this rule. To the best of my recollection, I recall no case where the non-legislative "federal law" has been given paramountcy over provincial laws. However, I do not see why the federal Parliament is under an obligation to codify legal rules if it wishes to ensure that they have paramountcy over provincial laws, at least when some of those legal rules fall under its exclusive jurisdiction, as for example do rules of evidence in criminal proceedings.

Furthermore, it cannot be said that the field is completely unoccupied by federal legislation, in view of s. 7(2) of the Criminal Code and s. 37 of the Canada Evidence Act.

Section 7(2) of the Criminal Code provides:

(2) The criminal law of England that was in force in a province immediately before the 1st day of April 1955 continues in force in the province except as altered, varied, modified or affected by this Act or any other Act of the Parliament of Canada.

Section 37 of the Canada Evidence Act states:

37. In all proceedings over which the Parliament of Canada has legislative authority, the laws of evidence in

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force in the province in which such proceedings are taken, including the laws of proof of service of any warrant, summons, subpoena or other document, subject to this and other Acts of the Parliament of Canada, apply to such proceedings.

(Emphasis added.)

In Marshall v. The Queen, supra, the Court considered whether a provincial statute which sought to alter the common law rule that statements by an accused made out of court to a person in authority, when made freely and voluntarily, could be applicable in a criminal proceeding. At page 127, Kerwin C.J. wrote:

As was pointed out in the Walker case, by common law a confession is admissible when it is proved to have been made voluntarily in the sense that it was not induced by threats or promises. I agree with the trial judge that the statements here in question were made voluntarily. If subs. 5 of s. 110 of the present Act purported to alter this rule, its application in a trial under the Criminal Code is excluded by that part of s. 36 of the Canada Evidence Act which is underlined because s. 7(1) of the Criminal Code retains the old common law.

The combined effect of s. 7(2) of the Criminal Code and s. 37 of the Canada Evidence Act, therefore, is to incorporate in the criminal law by legislation the common law in effect in a province immediately before April 1, 1955, including the secrecy rule regarding police informers, so that a conflict of provincial law with the policy underlying that rule becomes a legislative conflict, and not merely a legal conflict.

I accordingly conclude that a Quebec statute cannot constitutionally affect the secrecy rule regarding police informers' identity, either because it is in all respects a rule of criminal law and such a statute would be ultra vires, or because, even if such a statute were valid in certain respects, it would be inoperative in the current state of the law.

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VII—Conclusions

As in Keable No. 1, there is no need to order a stay of all proceedings, merely that of the illegal interrogation and illegal subpoenas.

There is also no need to order that the entire record be conveyed to the Superior Court, only that of the duces tecum writs filed as Nos. R-2 and R-4. As I indicated above, it is clear that certain of the documents and exhibits which respondent Commissioner required be produced would enable him to unlawfully trace the identity of a police informer, and these writs must be annulled pro tanto. However, it cannot be said merely from reading these writs whether this is true of all documents and exhibits required for production: it will be the responsibility of the judge of the merits to decide this in light of the objections, proof and arguments made to him.

In my view, the Court should conclude as follows:

The appeal is allowed;

The judgments of the Court of Appeal and the Superior Court are set aside;

A writ of evocation shall issue requiring respondent, and the clerk of respondent, to stay any proceeding, inquiry or examination compelling, or tending to compel, appellant to disclose the identity of his informers, or to produce documents from which their identity can be established, and in particular the documents and items mentioned in paragraphs 1 and 5 of duces tecum R-4;

The duces tecum writs R-2 and R-4 shall be sent within fifteen days hereof to the Registrar of the Superior Court for the district of Montreal;

The questions stated by order of the Chief Justice as reformulated above are answered in the negative, except for Questions 2(e) and 2(f), to which no answer is given.

There will be no order as to costs.

Appeal allowed.

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Solicitors for the appellant: Guy Lafrance and Paul Normandin, Montreal.

Solicitors for the respondent: Jacques Bellemarre and Jean-Pierre Lussier, Montreal.

Solicitors for the mis en cause: William J. Atkinson, Quebec City; Marie-Claude Lévesque, Montreal; Boissonneault, Roy & Poulin, Montreal.

Solicitor for the intervener the Attorney General of Canada: Roger Tassé, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: A. Rendall Dick, Toronto.

Solicitor for the intervener the Attorney General for New Brunswick: G. F. Gregory, Fredericton.

Solicitor for the intervener the Attorney General for Alberta: Ross W. Paisley, Edmonton.