Saulnier v. Quebec Police Commission, [1976] 1 SCR 572

Supreme Court of Canada

Saulnier v. Quebec Police Commission, [1976] 1 S.C.R. 572

Date: 1975-02-13

Jacques Saulnier Appellant;

and

Quebec Police Commission Respondent;

and

Montreal Urban Community et al. Mis en cause.

1974: October 9; 1975: February 13.

Present: Laskin C.J. and Martland, Judson, Ritchie, Pigeon, Spence, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Police Commission—Report to degrade the Director of the Police Department—Standardization of rank asked for by Attorney General—Writ of evocation—Commission is a quasi-judicial tribunal—Natural justice rules apply—Police Act, 1968 (Que.), c. 17, s. 20—Act to constitute the Montreal Urban Community Police Department, 1971 (Que.), c. 93, s. 31

Under s. 20 of the Police Act, respondent was required by the Attorney General and Minister of Justice of Quebec to hold an inquiry into the conduct of appellant, the Director of the Montreal Police Department. Pursuant to the conclusions and specifically to one recommendation contained in the report submitted by respondent to the Minister, the latter requested appellant, under s. 31 of the Act to constitute the Montreal Urban Community Police Department, to undertake the evaluation of appellant and the standardization of his rank and duties in the Montreal Urban Community Police Department. Appellant moved for a writ for evocation to prohibit respondent from proceeding further and to have its recommendation declared void. The Superior Court authorized the issuance of the writ, ruling that respondent was to be regarded as a quasi-judicial tribunal and that the “audi alteram partem” rule applied. This decision was reversed by the Court of Appeal. Hence the appeal to this Court.

Held: The appeal should be allowed.

The Police Act, expressly recognizing the application of the “audi alteram partem” rule clearly shows that the investigation report may have important effects on the rights of the persons dealt with in it. Here, the decision of respondent requires that appellant be degraded from his position as Director of the Police Department, and the sole purpose of subsequent proceedings is

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to determine the lower rank to which he should be assigned. It must be concluded that the case is a proper one for evocation.

Guay v. Lafleur, [1965] S.C.R. 12, distinguished.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec[1], reversing a judgment of the Superior Court, which authorized the issuance of a writ of evocation. Appeal allowed.

Jean-Louis Léger, for the appellant.

Ivan Bisaillon, Q.C., and Roger Thibaudeau, Q.C., for the respondent.

Lomer Rivard, Q.C., for the mis en cause.

The judgment of the Court was delivered by

PIGEON J.—This appeal is against a judgment of the Quebec Court of Appeal which, with two dissenting opinions, reversed the judgment of the Superior Court authorizing the issuance of a writ of evocation sought by appellant against respondent, the Quebec Police Commission (“the Commission”).

On January 18, 1972, the Minister of Justice, Attorney General of Quebec, sent the Chairman of the Commission a letter saying:

[TRANSLATION] Pursuant to the provisions of s. 20 of the Police Act, I request that you hold an inquiry into the conduct of Director Jacques Saulnier, as a member of the Police Department of the City of Montreal, and in particular into the facts and allegations contained in two articles which appeared in the newspaper Le Devoir on January 12 and 13, 1972.

It should be noted that the phrase “the conduct” in this document is the same as in s. 20 of the Police Act (c. 17 of the 1968 statutes, as amended). The first paragraph of that section, as replaced by an amendment of 1971 (c. 16, s. 5), reads as follows:

20. The commission shall make an inquiry respecting the Police Force or any municipal police force at the request of the Lieutenant-Governor in Council and as to the conduct of any member of the Police Force, munic-

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ipal policeman or special constable, whenever it is requested to do so by the Attorney-General; it must also make an inquiry whenever a municipality, approved by an absolute majority of the members of its council, requests the Commission to do so respecting its police force or the conduct of the members of such force or of a special constable appointed by the mayor.

The Commission’s report is dated July 7, 1972. The final chapter is headed “Conclusions and Recommendations”. In the first paragraph appellant is reprimanded [TRANSLATION] “for delay in returning a color television set which he had received from a person interested in a hotel, and for failing to notify his immediate superior”. Statements in the report show that in this respect the Commission was only repeating the reprimand made after the incident, in 1967, following a disciplinary inquiry, and, that reprimand, though not included in appellant’s records had been brought to the attention of the Mayor of Montreal early in 1968, that is more than three years before appellant’s promotion to the post of Director of the city’s Police Department, a promotion given with full knowledge of the incident.

Following this first conclusion, four recommendations of an administrative nature were made. The sixth and last reads as follows:

[TRANSLATION] 6. WHEREAS the evidence has shown that Jacques Saulnier has neither the qualifications nor the capacity to direct a police department of the size of the city of Montreal Police Department; WHEREAS since January 1, 1972 the City of Montreal Police Department is part of the Montreal Urban Community Department;

WHEREAS by virtue of the second paragraph of subsection 1 of section 31 of Chapter 93 of the Statutes of 1971, establishing the Montreal Urban Community Police Department, the Minister of Justice is authorized to make the standardization of ranks and duties applicable to a member of the City of Montreal Police Force, to the extent indicated by the Minister;

WHEREAS it is necessary to evaluate Jacques Saulnier and to standardize the rank and duties which he may exercise in the Montreal Urban Community Police Department;

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FOR THESE REASONS:

THE COMMISSION recommends that the Minister of Justice make the provisions of section 31 of Chapter 93 of the Statutes of 1971 applicable to Jacques Saulnier.

On July 13, 1972 the Minister of Justice wrote the Commission a letter, “Att. Mr. Justice Roger Gosselin”, the first two paragraphs of which read as follows:

[TRANSLATION] I wish to implement the sixth recommendation of your report, dated July 7, 1972, regarding Mr. Jacques Saulnier.

Pursuant to the second paragraph of subsection 1 of section 31, Chapter 93, 1971 Statutes (An Act to constitute, the Montreal Urban Community Police Department and to again amend the Montreal Urban Community Act), I request that you undertake the evaluation of Jacques Saulnier and the standardization of his rank and duties in the Montreal Urban Community Police Department.

Consequent on this letter appellant received from the Secretary of the Commission a summons to “an examination in order to take some aptitude tests”. A few days later, he caused to be served a motion for a writ of evocation to prohibit the Commission from proceeding further and to have the recommendation cited above declared void.

On November 27, 1972, Rodolphe Paré J. of the Superior Court, ruling on issuance of the writ, first observed that the Commission was to be regarded, in the circumstances, as a quasi-judicial tribunal, and went on:

[TRANSLATION] … what is the situation of a police officer required to appear before the Quebec Police Commission under s. 20 of the Police Act?

First, he must be summoned in accordance with the rules of the Code of Civil Procedure (s. 24). An inquiry is then held in which the witnesses summoned are required to testify (s. 21). Finally, the Commission may make a report censuring the conduct of the police officer and recommend that punitive action be taken against him (s. 25).

Accordingly, this report is in itself a judgment, since applicant has no other tribunal before which to assert his rights, as was the case in Lafleur v. Guay, [1965] S.C.R. 12. In the instant case, on the contrary, the censure imposed by the Commission, or the recommen-

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dation of punitive action contained in its report, enables such action to be taken ipso facto by the Director of the Montreal Urban Community Police Department.

Then, after considering what would be the consequences of the evaluation and standardization of the rank of appellant under the procedure provided, he stated:

[TRANSLATION] Here, there arises an irreconcilable conflict between the spirit of the Act and the rules of elementary justice. The tribunal before which applicant could appeal the decision of the investigator is none other than the one which decided his case at first instance, through a Commission of Inquiry. It is as though the Court of Appeal of this Province were to be asked to give a ruling before the case in question had come before the Superior Court. By ordering that applicant be subject to the provisions of s. 31, after finding him unfit to carry out the duties of his position, the Commission was deciding a matter which it might subsequently be called on to decide as an appellate tribunal, under the aforesaid section. By acting in this manner it reversed the order of successive jurisdictions established by the Act, and in my view this constitutes an excess of jurisdiction sufficient to justify issuance of the writ prayed for.

Then, observing that according to the terms of its first mandate and the provisions of s. 20, the Commission was only required to inquire into the conduct of appellant, he went on:

[TRANSLATION] If as a consequence of this mandate the Commission took it upon itself to make a finding as to the competence of applicant, and that finding later proved to be unlawful, it has thereby ipso facto exceeded the mandate of the Minister, and this is a further basis for concluding that there was an excess of jurisdiction.

Finally, he quotes the relevant portion of the section by virtue of which action was to be taken to degrade the appellant. This provision is the first part of s. 31 of the Act to constitute the Montreal Urban Community Police Department (c. 93 of the 1971 Statutes), which is as follows:

31. (1) As soon as possible after the 1st of January, 1972, the Quebec Police Commission shall evaluate the police personnel and standardize the ranks and duties of the members of the police forces of the municipalities, with a view to indicating the rank and duties of each

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policeman of such municipalities in the Montreal Urban Community Police Department.

This subsection shall apply to the police force of the City of Montreal only to the extent indicated by the Minister of Justice.

On this last point the learned judge concluded:

[TRANSLATION] TO interprete s. 31 as giving the Minister of Justice the power to choose at will among the thousands of policemen in the City of Montreal the individual or individuals he desires to submit to evaluation of their abilities and standardization of their ranks would be to give him an administrative function of supervising the employees of the municipal police. It would be to give him a discretionary power implying a potential for discrimination and political control.

But the police laws which govern us were drawn up in language specifically designed to exclude political interference so far as possible. Therefore, I do not think that the exception of s. 31, which excludes policemen of the City of Montreal from the standardization procedure except to the extent indicated by the Minister, enables the Minister to single out any one policeman and make him, subject to a special procedure, apart from that of the group as a whole.

This appears especially true in the case at bar since the recommendation of the Commission has certain characteristics of a disciplinary measure, the implementation of which is not usually the responsibility of the Minister. Section 31 of the Act to constitute the Montreal Urban Community Police Department has no connection with the taking of disciplinary action as a result of the conduct of a police officer.

The majority on appeal, consisting of Tremblay C.J.Q. and Turgeon and Crête JJ.A., reversed the decision of the trial judge solely on the ground that the Commission was not a quasi‑judicial tribunal. Turgeon J.A. quoted in particular the following passage from the reasons of Cartwright J. in Guay v. Lafleur[2], at p. 18:

…the maxim “audi alteram partem” does not apply to an administrative officer whose function is simply to collect information and make a report and who has no power either to impose a liability or to give a decision affecting the rights of parties.

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With respect, I must say that the function of the Commission is definitely not that of the investigator concerned in Guay v. Lafleur. That investigator was charged only with collecting information and evidence. The Minister of National Revenue could then unquestionably make use of the documentary evidence collected, but not of the investigator’s conclusions. It is for this reason that it was held the investigator could refuse to allow the taxpayer concerned to be present or be represented by counsel at the kind of investigation provided for by the Income Tax Act. The situation is quite different under the Police Act, s. 24 of which reads as follows:

24. The Commission shall not, in its reports, censure the conduct of a person or recommend that punitive action be taken against him unless it has heard him on the facts giving rise to such censure or recommendation. Such obligation shall cease, however, if such person has been invited to appear before the Commission within a reasonable delay and has refused or neglected to do so. Such invitation shall be served in the same manner as a summons under the Code of Civil Procedure.

This provision indicates that in this essential particular the Police Act differs fundamentally from the Income Tax Act. If this Court held that the latter Act did not require application of the audi alteram partem rule, this was because it had first concluded that the kind of investigation provided for by the Act involved no conclusion or finding as to the rights of the taxpayer concerned. The Police Act, on the other hand, besides expressly recognizing the application of the audi alteram partem rule, clearly indicates that the investigation report may have important effects on the rights of the persons dealt with in it. It does not appear necessary for me to labour this point, as I cannot see how it can be argued that the decision is not one which impairs the rights of appellant, when it requires that he be degraded from his position as Director of the City of Montreal Police Department, and the sole purpose of subsequent proceedings is to determine the lower rank to which he should be assigned, that is the extent of the degradation.

In my opinion Casey J.A., dissenting, properly wrote, with the concurrence of Rinfret J.A.:

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I believe that the Lafleur case is clearly distinguishable from the one now being discussed. In Lafleur the Supreme Court was concerned with the Income Tax Act—here we have a Quebec statute. In that case it had to decide whether the doctrine audi alteram partem applied: here it is written right into the Act by sec. 24. Finally there it was said that “… the appellant has no power to determine any of the former’s (Respondent’s) rights or obligations”. In my opinion Appellant (i.e. the Commission) has done just that.

…

Appellant has rendered a decision that may well impair if not destroy Respondent’s reputation and future. When I read the first and fourth considerants and the conclusions of the sixth recommendation and when I recall that the whole purpose of these reports is to present facts and recommendations on which normally the Minister will act the argument that no rights have been determined and that nothing has been decided is pure sophistry.

As indicated above, the Court of Appeal ruled on this one point only. Since the case is at the stage of issuance of the writ, it does not seem desirable to express any opinion on the other questions, or to return the record to the Court of Appeal for such purpose. As soon as a finding is made that the case is a proper one for evocation, it is preferable not to delay the hearing on the merits any further.

For these reasons I conclude that the appeal should be allowed, the judgment of the Court of Appeal set aside and the judgment of the Superior Court restored, with costs against the Quebec Police Commission in this Court and in the Court of Appeal.

Appeal allowed with costs.

Solicitor for the appellant: Jean-Louis Léger, Montreal

Solicitor for the respondent: Ivan Bisaillon, Montreal.

Solicitors for the mis en cause: Mercier, Rivard & Bélanger, Montreal.