Constitutional law ‑‑ Division of powers ‑‑ Judicial powers ‑‑ Allegations of arbitrary arrest and detention contrary to provincial human rights code ‑‑ Provincial offence overlapping tort of false imprisonment ‑‑ Adjudication of tort reserved to s. 96 courts ‑‑ Whether or not provincial human rights commission had jurisdiction to investigate and adjudicate on complaints ‑‑ Constitution Act, 1867, s. 96 ‑‑ The Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, ss. 7, 29(1), (2), 31(7), (8), 35.
Constitutional law ‑‑ Division of powers ‑‑ Criminal law and procedure in criminal matters ‑‑ Allegations of arbitrary arrest contrary to provincial human rights code ‑‑ Whether arbitrary arrest a matter of criminal law or criminal procedure.
Police ‑‑ Regulation ‑‑ R.C.M.P. ‑‑ Allegations of arbitrary arrest contrary to provincial human rights code ‑‑ Administration and direction of R.C.M.P. exclusive federal power ‑‑ Whether individual officers subject to provincial law.
Appellants, R.C.M.P. officers in Saskatchewan, arrested a man in a hunting cabin for assaulting a conservation officer and then ordered the other occupants from the cabin, without dressing and hands on their heads, and told them to lie on the ground. After half an hour in sub‑zero weather the complainants were told to get up one at a time, asked their names and addresses, and told to go back into the cabin. A complaint of arbitrary arrest, contrary to s. 7 of The Saskatchewan Human Rights Code, was made to the Saskatchewan Human Rights Commission. The Commission investigated the matter, informed appellants of their finding and proposed a settlement. When the officers did not respond, a Board of Inquiry was established to formally investigate the matter. The Commission took the position that although the force was subject to federal regulation its individual officers were subject to the provisions of The Saskatchewan Human Rights Code. An order of prohibition granted the appellants in the Saskatchewan Court of Queen's Bench was quashed on appeal. At issue here was whether the Board of Inquiry could validly conduct an inquiry into a complaint lodged against R.C.M.P. officers under a provincial code of human rights.
Held (Dickson C.J. and Wilson and La Forest JJ. dissenting): The appeal should be allowed.
Per Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain JJ.: Section 7 of The Saskatchewan Human Rights Code is inoperative in relation to arrest or detention under the criminal law. The Constitution Act, 1867 assigned Parliament exclusive jurisdiction over criminal law and criminal procedure in the widest sense. The requirements in s. 7, that a detention be judicially determined immediately and that notice be given of the charge, appear to be derived from the law of habeas corpus and were therefore, when sought to be applied in the context of criminal proceedings, encompassed by the criminal law power. The section's attempt to create the offence of arbitrary arrest went beyond regulating the civil consequences of unlawful arrest when it purported to define the boundaries of an authorized arrest. The problem of avoiding the criminal characterization of this legislation was rendered insoluble once it became necessary to sever s. 35. That section was fed and sustained by s. 7 which could not be severed because it was the main pillar in the statutory structure. Neither could any phrase or clause of s. 7 be severed because if taken in isolation it is as much criminal law as the section when read as an entity. No question of federal paramountcy arose because there was no parallel provincial power capable of supporting the section. Given the controlling force of the criminal law power, it was not necessary to deal with the effect of s. 96 of the Constitution Act, 1867 or to consider the question of provincial interference with the administration of purely federal institutions.
Per Dickson C.J. and Wilson and La Forest JJ. (dissenting): A board of inquiry, established by the Saskatchewan Human Rights Commission on a complaint of arbitrary arrest and detention contrary to The Saskatchewan Human Rights Code, may validly conduct an inquiry into that complaint pursuant to the Code.
The Board's inquiry into arbitrary arrest and detention did not invade the jurisdiction of a judge appointed under s. 96 of the Constitution Act, 1867 notwithstanding the fact that the superior courts traditionally deal with the very similar tort of false arrest. This tort is to compensate a person wrongly deprived of his liberty. Section 7 of the Code, while it overlaps that tort, deals with the more modern concept of the protection of human rights which flow from the inherent dignity and equality of mankind. The judicial component is subsidiary to its institutional arrangements. Many of the common anti‑discrimination functions of the Commission, such as those relating to race, colour, sex in employment and accommodation were not protected at common law and consequently, a human rights commission seeking to protect these rights could not be looked upon as exercising a function of a s. 96 judge as of the time of Confederation.
The Saskatchewan Human Rights Code provides a means of dealing with arbitrary action by police officers in the course of an unlawful arrest. The provisions of the Criminal Code setting forth limitations and conditions to the powers of arrest were not intended to so cover the field as to displace the province's legitimate interest in its civil aspects. The provinces can, consistently with any federal law defining the legality of an arrest, deal with the civil aspects of an unlawful arrest conducted by police officers, whether the arrest purports to be in relation to an alleged breach of the Criminal Code or of provincial law. The criminal law is in no way interfered with by these provisions of the human rights code. The province can not only provide for the amical settlement of disputes and the education of the public but can impose civil sanctions on those who do not comply with federal norms and can provide for compensation to those who may have suffered from the norms' not being respected. This type of complementary legislation need not be frozen in the form of the common law torts of false imprisonments and malicious prosecution. A police officer acting in the course of his employment is therefore subject to prosecution where it can be established that he intentionally offended against provincial law for the protection of human rights, just as he is subject to prosecution for breaches of the provincial highways acts, unless that breach be necessary for the enforcement of his duties.
Even assuming that the enforcement of s. 7 by means of a penal provision like s. 35(2) is unconstitutional as infringing on criminal law, it does not follow that enforcement of s. 7 by the proceedings taken by the Commission pursuant to the complaint procedure set out in the Code is also unconstitutional. The legislature provided for two quite distinct procedures for giving life to the right declared in s. 7‑‑one constitutional and one probably not. The two were not dependent on one another.
The Commission's proceedings were not an investigation into the management and administration of the R.C.M.P. but rather into the conduct of individual R.C.M.P. officers that formed the subject‑matter of the complaint. The Commission, to fit into the scheme for the protection of human rights, did not need to determine what changes would be required in the practices of the R.C.M.P. to deal with the complaint. That area of investigation has been established to be one of exclusive federal competence. Rather, the Board's investigation was into the conduct of individual R.C.M.P. officers on a particular occasion and the fact that it could not constitutionally investigate the general patterns or practices of the R.C.M.P. did not prevent it from exercising its other powers in an investigation of specific unlawful conduct by members of the R.C.M.P. on a particular occasion.
Aside from immunity that may arise regarding conduct in the course of duty, individual members of the R.C.M.P. are subject to provincial laws of general application in the same way as other citizens. The conclusion that members of the R.C.M.P. must conform with the law is in harmony with the approach taken in the Royal Canadian Mounted Police Act and its regulations. Specific conduct of individual officers in breach of the law cannot be viewed as coming within the management and administration of the R.C.M.P. and provincial investigations into allegations of such conduct are permissible. The fact that an officer's conduct might give rise to internal disciplinary action has nothing to do with the administration of a provincial law of general application like The Saskatchewan Human Rights Code.
Cases Cited
By Estey J.
Referred to: Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Switzman v. Elbling, [1957] S.C.R. 285; Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150; Attorney‑General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524; Proprietary Articles Trade Association v. Attorney‑General for Canada, [1931] A.C. 310; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; Boggs v. The Queen, [1981] 1 S.C.R. 49; Westendorp v. The Queen, [1983] 1 S.C.R. 43; Storgoff (In re), [1945] S.C.R. 526; Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474.
By La Forest J. (dissenting)
Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218; Attorney General of Alberta v. Putnam, [1981] 2 S.C.R. 267; Residential Tenancies Act, 1979, Re, [1981] 1 S.C.R. 714; B.C. Family Relations Act, Re, [1982] 1 S.C.R. 62; Massey‑Ferguson Industries Ltd. v. Government of Saskatchewan, [1981] 2 S.C.R. 413; Christie v. York Corporation, [1940] S.C.R. 139; Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181; Lodger's International Ltd. and O'Brien, Re (1982), 141 D.L.R. (3d) 743, reversed on other grounds (1983), 145 D.L.R. (3d) 293; Nykorak v. Attorney General of Canada, [1962] S.C.R. 331; Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; R. v. Wetmore, [1983] 2 S.C.R. 284; Attorney General of Canada v. City of Montreal, [1978] 2 S.C.R. 770; Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474; Conseil des Ports Nationaux v. Langelier, [1969] S.C.R. 60; R. v. McLeod, [1930] 4 D.L.R. 226; R. v. Stradiotto, [1973] 2 O.R. 375.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms .
Civil Code, s. 1053.
Constitution Act, 1867 , ss. 91(27) , 92(13) , (14) , (15) , 96 .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 25, 26, 29, 247(2), 449, 450, 451, 452, 453, 454.
Royal Canadian Mounted Police Act, R.S.C. 1970, c. R‑9, s. 37(3).
Royal Canadian Mounted Police Regulations, C.R.C. 1978, c. 1391, s. 25.
Rules of the Supreme Court of Canada, SOR/83‑74 as amended by SOR/83‑335, s. 32.
Saskatchewan Bill of Rights Act, 1947, S.S. 1947, c. 35.
Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, ss. 3, 7, 25, 27, 28(1), 29(1), (2), 30(1)(a), 31(3), (7), (8), 35(3).
Authors Cited
Dicey Albert Venn. Introduction to the Study of the Law of the Constitution, 10th ed. London: Macmillan, 1959.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Laskin, Bora. "An Inquiry into the Diefenbaker Bill of Rights" (1959), 37 Can. Bar Rev. 77.
Pigeon, Louis‑Philippe. "The Bill of Rights and the British North America Act" (1959), 37 Can. Bar Rev. 66.
Tarnopolsky, Walter Surma. "The Iron Hand in the Velvet Glove: Administration and Enforcement of Human Rights Legislation in Canada" (1968), 46 Can. Bar Rev. 565.
Tarnopolsky, Walter Surma. The Canadian Bill of Rights, 2nd ed. Toronto: McClelland and Stewart, 1975.
APPEAL from a judgment of the Saskatchewan Court of Appeal (1982), 148 D.L.R. (3d) 55, [1983] 4 W.W.R. 97, 23 Sask. R. 16, 4 C.H.R.R. D/1355, quashing an order of prohibition granted by Maher J. (1982), 139 D.L.R. (3d) 44, [1982] 5 W.W.R. 749, 19 Sask. R. 26, 3 C.H.R.R. D/972, with respect to a Board of Inquiry established by the Saskatchewan Human Rights Commission pursuant to The Saskatchewan Human Rights Code. Appeal allowed, Dickson C.J. and Wilson and la Forest JJ. dissenting.
T. B. Smith, Q.C., S. R. Fainstein and M. R. Kindrachuk, for the appellants.
Milton C. Woodard, for the respondent.
John Cavarzan, Q.C., for the intervener the Attorney General for Ontario.
Réal A. Forest, for the intervener the Attorney General of Quebec.
Bruce Judah, for the intervener the Attorney General for New Brunswick.
William Henkel, Q.C., and Robert Maybank, for the intervener the Attorney General for Alberta.
James C. MacPherson and Graeme G. Mitchell, for the intervener the Attorney General for Saskatchewan.
The judgment of Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain JJ. was delivered by
1. Estey J.‑‑There are two clear areas of law concerned in this appeal. The Criminal Code , in s. 247(2), makes it an offence to unlawfully confine or detain a person, and ancient principles of criminal law give a right to habeas corpus where detention is unlawful. On the other hand, the common law of Saskatchewan includes a right to recover damages in tort for false imprisonment. This tort action can be further controlled by provincial legislation if the province wishes to do so. Section (7) of The Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, is argued to be such action, at least in part. The section provides:
7. Every person and every class of persons shall enjoy the right to freedom from arbitrary arrest or detention, and every person who is arrested or detained shall enjoy the right to an immediate judicial determination of the legality of his detention and to notice of the charges on which he is detained.
2. The character of s. 7 in law must be determined and the answer to that process is the answer to this appeal. The only serious challenge to its validity is that it is in relation to criminal law. If the section is in pith and substance "true criminal law" under s. 91(27) of the Constitution Act, 1867 , then it is ultra vires the province and one need not pursue inquiry into the difficulties created by its coexistence with s. 25 of the Criminal Code . The true character in law of s. 7 will be determined from its interpretation, taking into account the language employed by the legislature, the nature of the statute in which it is found and its position in that statute.
3. The province may, under s. 92(15), create an offence to enforce or support a constitutionally valid provincial law or program. "Human rights" without more is itself not such a free‑standing program in the sense that not all such rights, and not all means by which such rights may be protected, fall in pith and substance within one of the heads of power in s. 92. Rather, provincial legislation protecting aspects of human rights may find constitutional validity only to the extent that it is, outside of its association with human dignity or liberty, independently valid under s. 92.
4. Let it be said at once that one does not approach a provincial human rights code on the basis that it is constitutionally presumptively suspect. The great bulk of the protections granted by such codes would appear to be beyond challenge as being legislation in relation to property and civil rights, or to matters of merely local or private nature. They deal, for example, with questions of discrimination in housing and employment, and equal access to goods and services. These legislative protections are valid not because they affirm interests such as liberty, or human dignity, but because the activities legislated, that is for example housing, employment, and education, are themselves legitimate areas of provincial concern under ss. 92 and 93. Here, however, we are asked to rule on the validity of a provision which does not fit into this category. Section 7 of the Saskatchewan Code deals with arbitrary arrest. To the extent that that subject is in pith and substance a matter falling exclusively within federal legislative competence, s. 7 must be found to be ultra vires the province.
5. In my view, therefore, it is not sufficient in disposing of this appeal to point to the fact that the Saskatchewan Code provisions are, as expressed in s. 3 of the Act, aimed in unison at the common targets of promoting "recognition of the inherent dignity and the equal inalienable rights of all members of the human family", and furthering the public policies against discrimination. The preoccupation of the Code as a whole with fostering civil liberties does not compel the conclusion that all the provisions of the Code are within provincial competence under s. 92 (13), "property and civil rights". In the division of legislative powers, "civil rights" is neither synonymous with nor necessarily inclusive of matters commonly thought of as "civil rights issues".
6. In Saumur v. City of Quebec, [1953] 2 S.C.R. 299, we find several references to this basic distinction:
(a) Estey J. wrote of religious freedom that (p. 359):
In one sense it may be styled a civil right, but it does not follow that it would be included within the phrase "Property and Civil Rights in the Province" within the meaning of s. 92(13) of the B.N.A. Act. On the contrary it would rather seem that such a right should be included among those upon which the Parliament of Canada might legislate for the preservation of peace, order and good government.
(b) Rand J. similarly distinguished (p. 329) "civil rights [which] arise from positive law" from "freedom of speech, religion and the inviolability of the person...[which] are at once the necessary attributes and modes of self‑expression of human beings and the primary conditions of their community life within a legal order."
The same distinction was made again by Rand J. in Switzman v. Elbling, [1957] S.C.R. 285, at p. 305.
7. This conclusion was adopted by Professor Laskin (as he then was) in ["An Inquiry into the Diefenbaker Bill of Rights"] (1959), 37 Can. Bar Rev. 77, at p. 104:
An assessment of the civil liberty classifications in terms of legislative power leads to the conviction that, by and large, economic liberty and liberty in the human rights or egalitarian sense are, respectively, subject either to federal or to provincial legislative power or to both concurrently, according to whether the industries, undertakings or activities involved or with which these liberties are connected, are themselves within the legislative power of Parliament or a provincial legislature.
The same sort of division of powers over "liberty in the legal sense" was confirmed at p. 107, and is inherent in the restriction of the Canadian Bill of Rights, R.S.C. 1970, App. III, s. 5(3), to matters within the legislative authority of Parliament (on Parliament's competence to enact the Bill, compare Laskin, supra, with Pigeon ["The Bill of Rights and the British North America Act"] (1959), 37 Can. Bar Rev. 66).
8. Just as a province has no jurisdiction to infringe a human right or liberty where the legislative provision is properly seen as falling under an exclusively federal head of power (i.e., Saumur v. City of Quebec, supra, Switzman v. Elbling, supra), a province's jurisdiction to affirmatively protect a human right or liberty must depend upon the human rights provision's independent validity under one of the heads of s. 92 (see Hogg, Constitutional Law of Canada (2nd ed. 1985), pp. 634‑35, Tarnopolsky, The Canadian Bill of Rights (2nd ed. 1975), pp. 55‑56). Saumur and Switzman, supra, are the opposite of this case in that there, provincial legislation had the effect of infringing civil liberties and here, the province has legislated to protect them. In principle, however, the cases are exactly the same. In each case, the essential question is whether provincial legislation is valid as in relation to property and civil rights or some other head of s. 92, or impermissibly deals with matters in relation to a subject over which Parliament has been given exclusive legislative jurisdiction. Should the root of the human rights legislation under challenge be within the territory of pure criminal law, and not in a valid provincial legislative object, it is beyond the powers of the provincial legislature. That is the basic question to be answered in this appeal.
9. It is parenthetically mentioned that this restriction on the ability of the provinces, and indeed the federal Parliament, to legislate for the protection of human rights or liberties in no way diminishes the pre‑eminent importance of such laws, when validly enacted. Valid human rights legislation enjoys a special status, in the sense recently enunciated by Lamer J. in Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, and confirmed by the whole Court in Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150. Human rights codes are fundamental laws intended to apply to all other legislation of the enacting body in the absence of express words in that legislation denying it that power.
10. Criminal law is easier to recognize than to define. It is easier to say what is not criminal law than what is. Fortunately, given the wording of s. 91(27) it is not necessary to distinguish in this issue that which is substantive criminal law from that which is criminal procedure. This Court and the Privy Council have in three leading cases dealt with the definition of criminal legislation. In Attorney‑General for Ontario v. Hamilton Street Railway Co., [1903] A.C. 524, the Lord Chancellor wrote at pp. 528‑29:
The reservation of the criminal law for the Dominion of Canada is given in clear and intelligible words which must be construed according to their natural and ordinary signification. Those words seem to their Lordships to require, and indeed to admit, of no plainer exposition that the language itself affords. Sect. 91, sub‑s. 27 , of the British North America Act, 1867, reserves for the exclusive legislative authority of the Parliament of Canada "the criminal law, except the constitution of Courts of criminal jurisdiction." It is, therefore, the criminal law in its widest sense that is reserved . . . .
This was taken literally in Proprietary Articles Trade Association v. Attorney‑General for Canada, [1931] A.C. 310, where it was stated, at p. 324, that:
Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?
Such a definition is necessarily too broad, as it would permit Parliament, simply by legislating in the proper form, to colourably invade areas of exclusively provincial legislative competence. Therefore, in the Margarine Reference [Reference re Validity of Section 5(a) of the Dairy Industry Act], [1949] S.C.R. 1, it was accepted that some legitimate public purpose must underlie the prohibition.
A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undersirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.
(Per Rand J. at p. 49.)
The lack of a sufficient public purpose of the relevant sort was determinative in Boggs v. The Queen, [1981] 1 S.C.R. 49.
11. The question of encroachment upon the criminal law jurisdiction of Parliament is discussed both by my colleague La Forest J. and in the judgment of the Saskatchewan Court of Appeal, below. With respect to those who reach the opposite conclusion, I conclude that provincial legislative powers cannot sustain the measure before the Court as applied to arrest or detention under the criminal law. The terms of s. 91(27) of the Constitution must be read as assigning to Parliament exclusive jurisdiction over criminal law in the widest sense of the term. Provincial legislation which in pith and substance falls inside the perimeter of that term broadly defined is ultra vires. Parliament's legislative jurisdiction properly founded on s. 91(27) may have a destructive force on encroaching legislation from provincial legislatures, but such is the nature of the allocation procedure in ss. 91 and 92 of the Constitution. Here we are not concerned with the result in law of the exercise by Parliament of one of its exclusive heads of jurisdiction. Indeed, the converse is the question: what, if anything, is the result in law of legislation by a province where it may be classified as essentially criminal in nature? Basic principles require the conclusion that such legislation is invalid, regardless of any perceived need for its substantive provisions, and regardless of perceived defects or gaps in the federal legislative plan (Westendorp v. The Queen, [1983] 1 S.C.R. 43, and see the discussion in Hogg, supra at pp. 313‑15).
12. Section 7 of The Saskatchewan Human Rights Code creates a right to be free from "arbitrary arrest or detention" and prescribes a right of every arrested or detained person to an immediate judicial determination of the legality of that detention, and to a notice of the charge on which he is detained. The latter two requirements relate to, and indeed appear to be derived from, the ancient law of habeas corpus. As such, where the issue arises, as it does in this appeal, in the context of the criminal law, they are clearly, in the Canadian constitutional scheme, matters of "criminal law, ... including the procedure in criminal matters" (Storgoff (In re), [1945] S.C.R. 526). The structure of s. 7 and its relationship to other provisions in the statute do not afford the solution of severability of the concluding clauses of the section, which are beyond argument measures relating entirely to procedure in criminal matters if they purport to be effective to give a right to judicial review of the legality of detention by police officers acting in the course of their duties in furtherance of the criminal law.
13. Section 7, read as a whole and in conjunction with s. 35 of the Saskatchewan statute, also clearly purports to create an offence of arbitrary arrest or detention. Section 35 specifies that "Every person who ... abridges ... a right under this Act ... is guilty of an offence and liable ... (3) ... to a fine of not more than $2,000... ." The words of s. 7 cannot therefore be read as merely creating a right in a vacuum. Violation of the right is an offence attracting a penalty. The province has not here, by enacting s. 7, merely regulated the civil aspects of unlawful arrest by specifying the consequences attendant upon such arrest. The latter is generally within provincial powers (Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474). Rather, here the province has purported to define the boundaries within which an arrest or detention is authorized. That is a matter which, where the arrest occurs in the course of enforcement of the criminal law, is itself in relation to criminal law or procedure. The problem of avoiding the criminal characterization of this legislation is indeed rendered insoluble once it becomes necessary to sever s. 35. That section is fed and sustained by s. 7 which of course cannot be severed because it is the main pillar in the statutory structure. Neither can any phrase or clause of s. 7 be severed because if taken in isolation it is as much criminal law as is the section when read as an entity.
14. Section 31(8) also throws some light on the true characterization in constitutional law of s. 7. By subsection (a) the Board is empowered to award "damages" for a "contravention" if the act is committed "wilfully and recklessly". This would, in ordinary legislative parlance, connote an offence with related punishment consequences regardless of the person or entity to whom the prescribed penalty is payable. Subsection (b) is equivocal on this issue but certainly cannot undo the work of subs. (a) in the characterization process.
15. The term "arbitrary arrest or detention" is not defined in the statute. The Criminal Code of Canada deals with detention and arrest in many ways in its provisions. Section 247(2) creates the offence of forcible confinement where confinement occurs without lawful authority. Section 25(1) of the Code affords certain defences to a person making an arrest within the authorization of the law, including the Criminal Code , where he acted on reasonable and probable grounds and used only such force as was necessary for the purpose. Section 26 of the Code makes excessive force an offence and s. 29 requires the arresting officer to give notice of the offence to the person arrested "where it is feasible to do so". The powers of arrest without warrant under the Criminal Code are defined in ss. 449 and 450.
16. These provisions are cited not to show that the federal Parliament has occupied the field or that difficulties will be encountered in the application of two bodies of law to the same population. (These requirements arise only where the provincial legislation relates to a valid provincial object.) Rather these Code provisions are advanced to illustrate that the type of action taken by the provincial legislature in s. 7 has been, almost since the advent of Confederation, taken by the Parliament of Canada in the exercise of its exclusive sovereignty over criminal law. That is not to say that repetition produces constitutionality. It does, however, illustrate that the community through its elected representatives, and in the course of its criminal law enforcement system, has for at least a century regarded the arrest and detention provisions in the Criminal Code as illustrations of the broadly defined approach to criminal law in the authorities, some of which have already been cited. Words in legislation, and more particularly, words employed in constitutional documents, take on meaning from the context in which they are employed in daily life. The words "criminal law" and "criminal procedure" are no exception. These words have long been accepted by legislature and courts alike in the community as including legislation with reference to arrest and detention, arbitrary or otherwise. To the extent that these activities form the core and substance of habeas corpus, they have had criminal law connotations in our criminal jurisprudence in Canada and in its British predecessor from which our criminal law has evolved for over seven hundred years. We are not here, of course, concerned with any valid provincial arrest or detention powers such as may, for example, be conferred on individuals with jurisdiction to enforce valid provincial regulatory schemes or penal provisions valid under s. 92(15), such as highway control statutes, and provincial statutes permitting apprehension of juveniles or the mentally ill.
17. The section of the provincial statute under examination in the criminal law context in this case cannot, in my view, be seen otherwise than as an exercise by the legislature in the enunciation of criminal law as the expression has been interpreted in our courts over the years. There is no parallel valid provincial aspect or scheme which could support it in this context. Accordingly, no question of federal paramountcy need be addressed. Because of the controlling force of the criminal law power over the resolution of this appeal, I find it unnecessary to deal with the effect of s. 96 of the Constitution Act, 1867 in matters of this kind. This was discussed by my colleague La Forest J. and by Tallis J.A. in the Court of Appeal. It is also unnecessary to consider the question of provincial interference with the administration of purely federal institutions, which was the principal theme of Maher J. in the first instance.
18. While s. 7 of The Saskatchewan Human Rights Code may validly apply to arrest or detention under provincial offences, it is in my opinion, for the reasons indicated above, constitutionally inapplicable to arrest or detention under the provisions of the criminal law and could not, therefore, validly apply to the conduct of the appellants. That being so, it is unnecessary to determine what, if any, rights the persons affected by the actions of the police officers may be entitled to under valid and applicable law. Those are issues for other tribunals in other actions.
19. I would therefore allow the appeal with costs.
The reasons of Dickson C.J. and Wilson and La Forest JJ. were delivered by
20. La Forest J. (dissenting)‑‑The question to be resolved in this case is whether a board of inquiry established in consequence of a complaint made to the Saskatchewan Human Rights Commission alleging that the complainants have been subjected to arbitrary arrest and detention in violation of s. 7 of The Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, may validly conduct an inquiry into the complaint pursuant to the provisions of the Code. The violation, it was alleged, was committed by R.C.M.P. officers who, under the aegis of a general policing agreement with the province, were in the course of conducting an investigation of an offence under the Criminal Code of Canada , R.S.C. 1970, c. C‑34.
Background
21. The appellants, R.C.M.P. officers, while in the course of investigating an alleged assault by Frederick Runns, Sr. against a conservation officer of the Department of Tourism and Renewable Resources of the Province of Saskatchewan, on September 28, 1980 went to a cabin at a hunting lodge where Frederick Runns, Sr. was. Also there were Joseph Dumont and Keith Deiter of Regina and Fred Runns, Jr. and Wesley Ironstar of Assiniboine Reserve, whom I shall hereafter call the complainants, who were asleep after a day's hunting. The R.C.M.P. officers are alleged to have awakened the complainants by means of a loud‑speaker, and stated that Fred Runns was under arrest and ordered him to come out with his hands behind his head. Runns, Sr. complied and was apprehended. The complainants were then told to come out from the cabin with their hands over their heads and not to bother to dress. Once outside, they asserted, they saw headlights directed at the cabin and were told to lie on the ground. They added that while Runns, Sr. was being questioned, they were ridiculed and forced to stay lying there inadequately clothed in sub‑zero weather. A dog, which appeared to be loose, was barking and came very close to their heads on several occasions. As well, someone is alleged to have stepped on the heads of Deiter and Dumont. After about half an hour, the complainants were told to get up one at a time, asked their names and addresses, and told to go back into the cabin.
22. On the basis of these allegations, the complainants made a complaint to the Saskatchewan Human Rights Commission on March 13, 1981 setting forth their belief that the R.C.M.P. officers had violated their rights under s. 7 of The Saskatchewan Human Rights Code by arbitrarily detaining them and by not informing them of the charges on which they were being detained. Section 7 reads as follows:
7. Every person and every class of persons shall enjoy the right to freedom from arbitrary arrest or detention, and every person who is arrested or detained shall enjoy the right to an immediate judicial determination of the legality of his detention and to notice of the charges on which he is detained.
The complainants added that they believed their experience was indicative of a general pattern and practice of the R.C.M.P.
23. After investigating the matter, the Commission wrote to the R.C.M.P. officers on August 11, 1981. In its letter, the Commission stated that its investigation showed that while the R.C.M.P. officers had reasonable cause to believe Frederick Runns, Sr. had committed an offence under the Criminal Code , there was no suggestion that any of the complainants were in any way involved with the offence. It then set forth its other findings, which are in basic accord with the allegations made by the complainants, except those relating to derogatory comments and possible physical assaults which it excluded from consideration, and concluded that in its opinion, the R.C.M.P. officers' conduct constituted a violation of s. 7 of The Saskatchewan Human Rights Code in that such conduct appeared to be both arbitrary arrest and detention. Its findings, it noted, were based on the testimony of conservation officers who were present during the incident, the complainants, and Frederick Runns, Sr., as well as the transcript of the trial of the latter. Since the R.C.M.P. officers had chosen not to refute the allegations, it added, the allegations were not controverted.
24. While the Commission took the position that the R.C.M.P. as a force may be subject to federal regulation and, therefore, outside the scope of The Saskatchewan Human Rights Code, it nonetheless concluded that individual R.C.M.P. officers, like other police officers in the province, were subject to its provisions. Consequently, it proposed the following settlement to the R.C.M.P. officers pursuant to s. 28(1) of the Code:
1. That you each acknowledge an understanding of The Saskatchewan Human Rights Code and in particular Section 7 thereof and undertake not to violate the provisions of same in the future;
2. That you jointly and severably [sic] agree to pay to each of the respondents the sum of $5,000.00. To ensure there is no misunderstanding we are requesting that each complainant receive a total of $5,000.00.
It added:
The above indicated monetary sum is sought in settlement of damages suffered in respect of feeling or self‑respect, as well as because of the wilful and reckless nature of the violation. While $5,000.00 is the maximum allowable for such losses pursuant to Section 31(8) of the Code, we feel that the blatant nature of the violations as well as the severe effect on the complainants, requires such sum.
25. The R.C.M.P. officers did not respond to this letter. A Board of Inquiry was then established to make a formal inquiry about the complaint, pursuant to s. 29 of The Saskatchewan Human Rights Code, the relevant portions of which read as follows:
29.‑‑(1) Where the commission, or a person conducting an inquiry on behalf of the commission, is unable to effect a settlement of the matter complained of, the commission shall report to the minister and, in its discretion, may direct a formal inquiry into the complaint to hear and decide the matter or, in the absence of a direction by the commission, the minister may direct such a formal inquiry.
(2) A board of inquiry shall consist of one or more persons appointed by the minister to hear and decide the complaint.
26. The powers of a Board of Inquiry are set forth in s. 31 of the Code. The most pertinent for our purposes are s. 31(7) and (8), which read as follows:
31....
(7) Where, at the conclusion of an inquiry, the board of inquiry finds that the complaint to which the inquiry relates is substantiated on a balance of probabilities, the board may, subject to subsections (9) and (10), order any person who has contravened any provision of this Act, or any other Act administered by the commission, to do any act or thing that in the opinion of the board constitutes full compliance with that provision and to rectify any injury caused to any person and to make compensation therefor, including, without restricting the generality of the foregoing, an order:
(a) requiring that person to cease contravening that provision and, in consultation with the commission on the general purposes thereof, to take measures, including adoption of a program mentioned in section 47, to prevent the same or similar contravention occurring in the future;
(b) requiring that person to make available to any person injured by that contravention, on the first reasonable occasion, any rights, opportunities or privileges that, in the opinion of the board of inquiry, are being or were being denied the person so injured and including, but without restricting the generality of this clause, reinstatement in employment;
(c) requiring that person to compensate any person injured by that contravention for any or all of the wages and other benefits of which the person so injured was deprived and any expenses incurred by the person so injured as a result of the contravention;
(d) requiring that person to make any compensation that the board of inquiry may consider proper, to any person injured by that contravention, for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and any expenses incurred by the person so injured as a result of the contravention.
(8) Where a board of inquiry finds that:
(a) a person has wilfully and recklessly contravened or is wilfully and recklessly contravening any provision of this Act or any other Act administered by the commission; or
(b) the person injured by a contravention of any provision of this Act or any other Act administered by the commission has suffered in respect of feeling or self‑respect as a result of the contravention;
the board of inquiry may, in addition to any other order it may make under subsection (7), order the person who has contravened or is contravening that provision to pay any compensation to the person injured by that contravention that the board of inquiry may determine, to a maximum of $5,000.
27. The respondent Chairman of the Board of Inquiry then sent a notice of the formal inquiry to the appellant R.C.M.P. officers, scheduling the matter for hearing on January 26, 1982. Thereafter the R.C.M.P. officers sought an order of prohibition before Maher J., of the Saskatchewan Court of Queen's Bench on the following grounds:
(a) THAT the Saskatchewan Human Rights Commission and the Respondent Chairman of the Board of Inquiry lack jurisdiction to inquire into complaints against the conduct of members of the Royal Canadian Mounted Police while on duty.
(b) THAT Section 7 of the Saskatchewan Human Rights Code cannot be employed to establish rights or procedures in matters of criminal law and has no application to members of the Royal Canadian Mounted Police engaged in the investigation of offences under the Criminal Code of Canada .
(c) THAT Sections 29 and 31 of the Saskatchewan Human Rights Code are beyond the competence of the Saskatchewan Legislature in that they purport to confer upon the Board of Inquiry judicial powers and functions analogous to those performed by judges of a Superior, District or County Court appointed pursuant to Section 96 of the British North America Act.
(d) Such other grounds as counsel may advise.
28. Maher J. granted the order; see (1982), 139 D.L.R. (3d) 44. In his view, the investigation of the complaint made to the Commission necessarily involved an inquiry into the administration and internal management of the R.C.M.P. Such an inquiry is contrary to the holdings in the cases of Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218, and Attorney General of Alberta v. Putnam, [1981] 2 S.C.R. 267. A holding that the Commission had jurisdiction could put a member of the force in the impossible position of having to choose between being in violation of an order of the Commission, which was enforceable as a court order, and being in violation of the order of a superior officer. It could also result in conflicting decisions by the Commission and the disciplinary body of the R.C.M.P. Additionally, decisions to arrest or detain individuals are subject to the relevant provisions of the Criminal Code , which are paramount to s. 7 of The Saskatchewan Human Rights Code in so far as it purports to regulate rights and procedures in relation to such activities. Under these circumstances, Maher J. found it unnecessary to decide whether the provisions of the latter Code were invalid as conferring on a Board of Inquiry judicial powers and functions that were restricted to judges appointed under s. 96 of the Constitution Act, 1867 .
29. On an appeal to the Court of Appeal of Saskatchewan, the order of prohibition was quashed; see [1983] 4 W.W.R. 97. Tallis J.A., who gave the judgment of the court, rejected all three objections to the Board of Inquiry's jurisdiction. Applying the three‑part test articulated in Residential Tenancies Act, 1979, Re, [1981] 1 S.C.R. 714, he found it unnecessary to decide whether the Board's function conformed to that exercised by a judge appointed under s. 96 at the time of Confederation. In his view, while there was a judicial aspect to the Commission's work, it was not central to its function. As he saw it, there was an intertwined administration under The Saskatchewan Human Rights Code that brought the Commission into a broad social policy framework emphasizing public education and amicable settlement of disputes in the area of human rights. That took its work and that of the Board of Inquiry out of the functions of a s. 96 judge under the second and third propositions in the Residential Tenancies case.
30. Tallis J.A. did not agree that the Board's inquiry extended to an investigation into the internal administration of the R.C.M.P. so as to violate the law enunciated in the Keable and Putnam cases, supra. Rather, the Code was a statute of general application concerning violations of human rights by individuals in the province, including members of the R.C.M.P. The fact that violation of the Code might also constitute a breach of the disciplinary rules of the R.C.M.P. was not a matter of concern to the Board. The Keable and Putnam cases were thus distinguishable.
31. Finally, Tallis J.A. did not think the subject matter of s. 7 of The Saskatchewan Human Rights Code was in conflict with ss. 450 et seq. of the Ciminal Code, which set forth conditions for the detention of arrested persons. Section 7 dealt rather with arbitrary detention in a human rights context. He noted that violation of the Code's conditions may involve potential civil claims for damages for assault, false imprisonment and other torts, which have long co‑existed with the provisions of the Criminal Code .
32. Leave to appeal to this Court was granted on June 20, 1983. On July 19, 1983, Beetz J., pursuant to Rule 32 of the Rules of the Supreme Court of Canada, stated the constitutional questions in this appeal as follows:
(1) Are sections 7, 29 and 31 of The Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, in so far as they would permit persons appointed by a provincial minister to adjudicate upon a complaint of arbitrary arrest or detention, inoperative by reason of s. 96 of the Constitution Act?
(2) Is a provincially established Board of Inquiry constitutionally empowered to adjudicate upon a complaint that members of the R.C.M.P. while on duty arbitrarily arrested or detained certain persons contrary to the provisions of s. 7 of The Saskatchewan Human Rights Code, or, is such a proceeding unauthorized because it is directed to
a) the administration and management of the R.C.M.P.; or
b) the supervision and control of the exercise by the R.C.M.P. of powers to arrest and detain persons as a matter of criminal law and procedure in criminal matters?
33. In addition to the parties, the Attorney General of Saskatchewan, where the activities giving rise to the action took place, as well as those of Alberta, New Brunswick, Ontario and Quebec were represented as interveners on the appeal.
The Section 96 Issue
34. Section 96 of the Constitution Act, 1867 empowers the Governor General to appoint the judges of the superior, district and county courts in each province. Though ostensibly simply an appointing power, the provision was really an outgrowth of a compromise by the Fathers of Confederation. Though legislative powers were divided between two levels of government, a unitary judicial system was established to deal with laws enacted at both levels. Each level of government, therefore, has an interest in the administration of judicial affairs, an interest reflected in constitutional arrangements whereby the provinces were given power to legislate respecting "the Constitution, Maintenance, and Organization of Provincial Courts", and the federal government power to appoint the judges of the superior, district and county courts. Evidently, if the provinces were completely free to vest the powers of those courts in tribunals of their own making, s. 96 could become a dead letter, and the constitutional scheme contemplated by the Fathers destroyed. So s. 96 came to be read as implicitly prohibiting the provinces from endowing provincial tribunals with functions appropriate solely to the courts enumerated in that provision.
35. This reading, however, requires the development of a conceptual framework to determine what those functions are, a task that is by no means easy or capable of being effected by resorting to fixed and precise rules. The evolution of the courts' approach has been recounted in several recent cases and need not be repeated here; see, in particular, the judgment of Dickson J. (now C.J.C.) in Residential Tenancies, supra, and that of Estey J. in B.C. Family Relations Act, Re, [1982] 1 S.C.R. 62.
36. In examining the matter, it is obvious that one should have an eye on what the Fathers must have had in mind, and this demands that one look to see if the jurisdiction sought to be vested in a tribunal is one that generally conforms to that exercised by a s. 96 court in 1867. But judicial functions, like other parts of the Constitution, cannot be frozen in an 1867 mold. Adaptations must be permitted to allow the legislatures scope to deal effectively with emerging social problems and concerns, and to develop new techniques of dispute resolution and the expeditious disposition of relatively minor disputes. At the same time, the s. 96 courts must continue their exclusive function of determining basic judicial questions of public order and public policy, or as Estey J. has put it, those "serious and frequently profound difficulties arising in the community" which the Constitution obviously contemplated should be their responsibility; see B.C. Family Relations Act, Re, supra, at p. 107.
37. In determining whether the functions vested in the Saskatchewan Human Rights Commission relating to arbitrary detention encroach upon the functions of a s. 96 court, I shall approach it largely in the manner suggested by Dickson J. in the Residential Tenancies case. This involves posing a number of questions relating to an impugned function, later summarized by Laskin C.J. in Massey‑Ferguson Industries Ltd. v. Government of Saskatchewan, [1981] 2 S.C.R. 413, at p. 429, as follows:
1. Does the challenged power or jurisdiction broadly conform to the power or jurisdiction exercised by Superior, District or County Courts at the time of Confederation?
2. Is the function of the provincial tribunal within its institutional setting a judicial function, considered from the point of view of the nature of the question which the tribunal is called upon to decide or, to put it in other words, is the tribunal concerned with a private dispute which it is called upon to adjudicate through the application of a recognized body of rules and in a manner consistent with fairness and impartiality?
3. If the power or jurisdiction of the provincial tribunal is exercised in a judicial manner, does its function as a whole in its entire institutional context violate s. 96?
38. I should perhaps state at the outset that s. 96 creates no difficulty in respect of most of the ordinary anti‑discrimination functions of a human rights commission. Rights against discrimination on grounds of race, colour, creed, sex and so on in employment and accommodation, for example, were not protected at common law; see Christie v. York Corporation, [1940] S.C.R. 139; Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181. Consequently, it is difficult to see how a human rights commission could, in seeking to protect these rights, be looked upon as exercising a function vested in a s. 96 judge at the time of Confederation. On this point, I am in substantial agreement with Stevenson J. in Lodger's International Ltd. and O'Brien, Re (1982), 141 D.L.R. (3d) 743 (N.B.Q.B.), reversed on other grounds: (1983), 145 D.L.R. (3d) 293 (N.B.C.A.)
39. Counsel for the appellant R.C.M.P. officers did not deny the validity of the anti‑discriminatory functions of the Commission. His argument, rather, was that the specific matter in contention, i.e. arbitrary arrest and arbitrary detention, was in 1867 comprised within the tort of false imprisonment. That tort, he maintained, went to the heart of the liberty of the subject and as such was traditionally dealt with at the superior court level. On the basis of the statutes presented by him, I am inclined to agree that both before and after Confederation that tort has consistently been dealt with at the superior court level, apart from small claims jurisdiction referred to by counsel for the Attorney General of Ontario, which I do not think affects the issue. I am also in general agreement (and this was conceded by counsel for the respondent and most of the interveners) that the subject‑matter of arbitrary arrest and detention as used in s. 7 of The Saskatchewan Human Rights Code substantially overlaps that covered by the tort of false imprisonment.
40. But this does not end the matter. As counsel for the respondent noted, the tort of false imprisonment was created to serve a purpose fundamentally different from that of protecting human rights, a more modern concern. As well, he added, while the institutional arrangements for the protection of human rights in The Saskatchewan Human Rights Code include a judicial component, it is not central to those arrangements. As will appear, I am in basic agreement with these contentions.
41. I shall take up the differences between the purpose of false imprisonment and that of s. 7 first. Though the tort undoubtedly constitutes a means for the protection of liberty, its immediate concern is to compensate a person for damage resulting from interference with his liberty. It was originally devised as an alternative method of preserving the King's peace by replacing violent retaliation. That public purpose along with private compensation continue to be its predominant concerns.
42. On the other hand, The Saskatchewan Human Rights Code deals within the more modern concern for "human rights", i.e. those flowing from the inherent dignity and equality of all members of the human family. This is made clear by s. 3 of the Code, which reads as follows:
3. The objects of this Act are:
(a) to promote recognition of the inherent dignity and the equal inalienable rights of all members of the human family; and
(b) to further public policy in Saskatchewan that every person is free and equal in dignity and rights and to discourage and eliminate discrimination.
The Code does this, as will be seen with more particularity later, largely through a complaint procedure under which the Commission attempts to persuade a person against whom a complaint is made that his behaviour constitutes an infringement on the rights of others and should be changed, and through such complaints and other ways, to educate the public generally about human rights. Though the scheme may also afford a measure of compensation to the complainant, this is clearly subsidiary to its purpose. It is essential to the human rights shceme only in the sense that complaints must be encouraged to make the scheme viable and that there must be a sanction to ensure the workings of the conciliatory measures involved in the operations of the complaints procedure.
43. Section 7, it is true, goes beyond the usual areas over which human rights commissions in this country exercise jurisdiction, such as anti‑discrimination provisions in relation to employment or accommodation. However, I see nothing intrinsically wrong with the provinces extending this jurisdiction to other areas of human activity, so long, of course, as they stay within the confines of provincial legislative competence. The concern‑‑the inherent dignity and equality of every human being and the prevention of invidious discrimination‑‑is the same; the procedure in the Code has simply been extended to a new area, that relating to the manner in which an arrest is to be made.
44. I do not think, therefore, to use the words of Laskin C.J. in Massey‑Ferguson v. Saskatchewan, supra, at p. 426, that the new jurisdiction is simply "mounted on the valid provisions and ... sustained on that basis alone". Rather, to quote again from the same passage, "the challenged authority or function is so integrated with the valid regulatory regime as to take on an altered character". Consequently, it should be upheld. Incidentally, s. 7 is not the only provision of the Code that covers an area that is also covered by tort law. A person might well pursue a claim under the Code's provisions prohibiting discrimination in employment on facts that would also support a common law action for wrongful dismissal.
45. The difference between the tort of false imprisonment and a claim under a provision in human rights legislation may also be illustrated by the issues to be addressed in considering what constitutes the prohibited conduct. In the case of false imprisonment, the essential issue will be whether the imprisonment was authorized by law, although indignities suffered by the victim of the tort may certainly be considered in assessing damages. In a human rights context, the reverse will be the case.
46. I come now to the institutional framework for the promotion and protection of the rights recognized by the Code. The primary institution through which this is effected is the Saskatchewan Human Rights Commission, which was created by earlier legislation and continued under s. 21. The central purpose of a human rights commission is to engender respect for human rights. This it does by a variety of means, notably through public education, research, and amicable settlement of disputes arising under the Code. The tone for its activities is set by s. 25 of the Act which reads as follows:
25. The commission shall:
(a) forward the principle that every person is free and equal in dignity and rights without regard to his race, creed, religion, colour, sex, marital status, physical disability, age, nationality, ancestry or place of origin;
(b) promote an understanding and acceptance of, and compliance with, this Act;
(c) develop and conduct educational programs designed to eliminate discriminatory practices related to the race, creed, religion, colour, sex, marital status, physical disability, age, nationality, ancestry or place of origin of any person or class of persons;
(d) disseminate information and promote understanding of the legal rights of residents of the province and conduct educational programs in that respect;
(e) further the principle of the equality of opportunities for persons, and equality in the exercise of the legal rights of persons, regardless of their status;
(f) conduct and encourage research by persons and associations actively engaged in the field of promoting human rights;
(g) forward the principle that cultural diversity is a basic human right and fundamental human value.
47. A distinctive feature of a human rights commission is its procedure for dealing with complaints that a right protected by the legislation has been violated. The Saskatchewan Human Rights Code provides for this in ss. 27 et seq. On receipt of a complaint, which it may itself initiate, the Commission may enter into an inquiry in which it first attempts to achieve a settlement by the technique that Professor, now Mr. Justice, Tarnopolsky has lucidly described in "The Iron Hand in the Velvet Glove: Administration and Enforcement of Human Rights Legislation in Canada" (1968), 46 Can. Bar Rev. 565. In conformity with the legislation's basic goal, the primary emphasis is on education and attempts at persuasion and conciliation of the parties. Enforcement measures are necessary to make these activities possible and fairness dictates that those measures be justified by a judicial component. But enforcement, as Tallis J.A. observes, is only available as a last resort. The adjudicative function of a Board of Inquiry in determining whether a violation has occurred is not central to the enterprise. A proceeding before a Board of Inquiry established by the commission cannot be equated with a lis between parties in a court. The moving force throughout, the body that has the carriage of the proceeding (see Code, s. 30(1)(a)), is the Commission, and its ultimate goal is the promotion of human rights for the benefit of the community as a whole. I agree with Tallis J.A. therefore that the function of the Board of Inquiry in its institutional setting cannot be characterized as being reserved for a s. 96 court.
48. I, therefore, conclude that the Board of Inquiry in performing its functions in this case was not invading a function reserved for a judge appointed under s. 96 of the Constitution Act, 1867 , and I would reply to the first constitutional question in the negative.
Criminal Investigation Procedures
49. By the second constitutional question, it is sought to determine whether the Board established by the Human Rights Commission could properly adjudicate on a complaint regarding the alleged arbitrary arrest under s. 7 of The Saskatchewan Human Rights Code, or whether such a proceeding was unauthorized because it was directed to (a) the administration and management of the R.C.M.P., or (b) the supervision and control of the exercise by the R.C.M.P. of powers to arrest and detain persons as a matter of criminal law and procedure in criminal matters.
50. In the interests of clarity, I shall first examine whether s. 7 of the Code encroaches on criminal law and procedure. To the extent that it does, of course, it cannot stand. That subject is exclusively assigned to Parliament by s. 91(27) of the Constitution Act, 1867 .
51. Counsel for the R.C.M.P. officers put his position this way. The activities of the Board of Inquiry, he argued, can only be characterized as an inquiry into the exercise by the R.C.M.P. of powers to arrest and detain persons as a matter of criminal law and procedure. The Board, he continued, is not authorized to enquire into investigative procedures, which are matters of criminal law, in the context of a complaint of arbitrary arrest or detention. Such action, he reasoned, would constitute an unconstitutional intrusion into the federal criminal law power under s. 91(27) of the Constitution Act, 1867 .
52. For these propositions, counsel cited Nykorak v. Attorney General of Canada, [1962] S.C.R. 331, Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206, and R. v. Wetmore, [1983] 2 S.C.R. 284. I have some difficulty in seeing how these cases support his propositions. While the last two favour a broad interpretation of the criminal law power, and the first illustrates the impact that a proper exercise of a federal legislative power may have on civil rights, none of the cases supports the proposition that the regulation by Parliament of arrest and detention for the purposes of criminal law completely overrides the power of the province to legislate respecting the civil consequences flowing from arbitrary arrest and detention.
53. Before going further, it is important to determine with some precision what s. 7 of the Code attempts to do. That provision, it will be recalled, provides that every person or class of persons has a right to freedom from arbitrary arrest and detention and (though this is not directly relevant) to the right to an immediate judicial determination of the legality of his detention and notice of the charges on which he is detained.
54. The provision appears to be written in popular language rather than with strict legal precision. It originally appeared in a separate statute, The Saskatchewan Bill of Rights Act, 1947, S.S. 1947, c. 35, perhaps the earliest general legislative step in the movement for the formal expression of the traditional fundamental rights long recognized in this country. That Act set forth many of the rights and freedoms now enshrined in the Canadian Charter of Rights and Freedoms . It was later amalgamated with human rights provisions in other statutes, becoming Part I of The Saskatchewan Human Rights Code.
55. Section 7 appears to incorporate the basic rights regarding arrest that form part of long established criminal procedure. The second wing of the section makes this clear. It obviously refers to the immediate right to seek habeas corpus and to be informed of the nature of the charges upon which one is detained. Viewed in that light "arbitrary arrest and detention" simply refers to the right not to be arrested or detained in the absence of reasonable and probable cause. In a word, it appears to be referring to an unlawful arrest as traditionally understood in this country. Given its position in a human rights statute, one might be tempted to construe it in a broader sense, but if the effect of such a construction would result in making the provision invalid as an attempt to define the boundaries of lawful arrest under criminal law (a question into which I shall not enter), the presumption of constitutionality would favour the narrower interpretation. But, as I have observed, given the antecedents of the provision, I think it was intended to refer to arbitrary arrest and detention as traditionally understood over the years.
56. In so far as the section refers to criminal investigations, the standards therein described must, of course, be the subject of federal law. However, the mere repetition of a federal standard in a provincial statute does not, without more, make a provincial enactment invalid. It all depends on the way in which the statute deals with the rights declared. Here the relevant manner in which the Code attempts to deal with the right is in that already described, namely, by providing for an enquiry under the aegis of the Saskatchewan Human Rights Commission following a complaint that the right has been breached. The Commission then proceeds in its usual fashion to set in motion its investigatory and conciliatory procedures for dealing with complaints, including requirements regarding what the person complained against must do and the compensation he must pay. In a word, these provisions, without more, simply provide a means of dealing with arbitrary action by police officers in the course of an unlawful arrest.
57. Leaving aside for the moment the question whether the provision is directed at the administration and management of the R.C.M.P., I would have thought there could be no doubt that the provinces could, consistently with any federal law defining the legality of an arrest, deal with the civil aspects of an unlawful arrest conducted by police officers, whether the arrest is ostensibly one for a violation of provincial law or the Criminal Code . The jurisdiction of the provinces under s. 92(13) of the Constitution Act, 1867 over property and civil rights, gives them ample power to deal with the civil rights of persons who have suffered injury in the conduct of an arrest conducted in the course of the administration of justice in the province.
58. Accordingly, I see nothing that interferes with the criminal law power in provisions that seek to apply the usual procedures of a human rights code to an arbitrary arrest of the kind alleged here, one not justified under the Criminal Code . Nor do I see anything objectionable to the province's seeking to enforce in that way the usual requirements of ensuring the legality of a detention and that the person detained be informed of the charges against him. These procedures are of course required by federal law and properly fall within the federal criminal law power. But there is surely nothing wrong in the province's imposing civil sanctions on those who do not comply with the federal norms and providing for compensation to those who may have suffered from their not being respected, as well as for the amicable settlement of disputes and the education of the public about the human rights aspects of such behaviour. This seems to me to fall within the type of complementary legislation referred to by Beetz J., speaking for the majority of this Court in Attorney General of Canada v. City of Montreal, [1978] 2 S.C.R. 770, in the following passage at p. 794:
...we are not concerned in this case with the outer limits of federal jurisdiction over criminal law and I fail to see how the fact that Parliament has not exercised a possible incidental power should sterilize provincial legislative competence and prevent a province or a city from exercising their own powers. And, in the exercise of their own powers, the provinces may constitutionally complement federal legislation. The reports are replete with cases where provincial legislation complementary to federal legislation was upheld as long as it did not collide with the latter....
59. Such complementary provincial laws have, of course, long existed in the form of the common law torts of false imprisonment and malicious prosecution and I cannot believe the law must in the future be frozen in this particular form. In Quebec, similar complementary legislation exists by virtue of the Quebec Civil Code.
60. Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474, is especially instructive in this context. In that case Chartier, by petition of right against the Attorney General, claimed damages for false arrest and for a wrongful charge of manslaughter made by officers of the Quebec Police Force. The Court held that the officers had committed various acts of fault within the meaning of art. 1053 of the Quebec Civil Code and consequently that the Attorney General, representing the Queen in right of the Province of Quebec, was liable as their employer. I shall not attempt a full discussion of the case, which is complicated because of the many acts of fault attributed to the police officers, but will focus solely on those aspects of particular relevance to our inquiry.
61. As in the present case, the police officers were acting in the course of their employment at the relevant time; they were investigating a crime. But as here, too, their actions were not authorized by the provisions of the Criminal Code . Thus Pigeon J., who gave the majority judgment, dismissed, as not being supported by the evidence, the defence under the Criminal Code that a peace officer may arrest a person without warrant if he has reasonable and probable grounds for believing the person has committed an indictable offence. In the case before us, there was no arrest at all, and there was an uncontroverted finding by the Commission that while there was reasonable cause to believe that Fred Runns, Sr. had committed an offence, "there was no suggestion that any of the other persons [the complainants] were in any way involved in the offence or [had] access to their hunting arms". On the basis of these uncontroverted facts, it is difficult to see how the detention of the complainants, and the manner in which it was effected, could be justified under s. 25(1) of the Code as an authorized act done on reasonable and probable grounds using only such force as is necessary for the administration or enforcement of the law.
62. Earlier in his judgment, Pigeon J., at p. 498 referred to the judgment of Martland J. speaking for the Court in Conseil des Ports Nationaux v. Langelier, [1969] S.C.R. 60, at p. 65 where the following passage from Dicey's The Law of the Constitution, 10th ed., at p. 193, was quoted with approval:
With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, Mostyn v. Fabrigas, (1774) 1 Cowp. 161; Musgrave v. Pulido, (1879) 5 App. Cas. 102; Governor Wall's Case, (1802) 28 St. Tr. 51, a secretary of state, Entick v. Carrington, (1765) 19 St. Tr. 1030; K. & L. 174, a military officer, Phillips v. Eyre, (1867) L.R. 4 Q.B. 225; K. & L. 492, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.
63. Finally, I should note that Pigeon J. makes clear that, for the purposes of civil liability, no distinction can be made on the basis that the police officers were enforcing the Criminal Code rather than a provincial enactment. He had this to say at p. 501:
Moreover, it seems obvious to me that since the entire administration of civil and criminal justice as a rule comes within provincial jurisdiction, there can be no question of making a distinction as to the liability of the provincial police officers on the basis of whether the case involves the investigation and prosecution of offences under federal legislative jurisdiction, as opposed to offences under provincial legislative jurisdiction.
64. That case, of course, involved officers of the Quebec Police Force, but the reasoning is equally applicable to R.C.M.P. officers. The provisions of the Criminal Code setting forth limitations and conditions to the power to arrest were not intended to so cover the field as to displace the province's legitimate interest in its civil aspects. So too, s. 25 of the Criminal Code , by restricting the protection accorded to a peace officer in the performance of his duties to cases where he acts on reasonable and probable grounds and without using unnecessary force, leaves open the possibility of a suit in tort where such grounds are absent. Thus a peace officer could be sued civilly for false imprisonment, assault, or malicious prosecution, or in Quebec, as Chartier demonstrates, for fault.
65. I might mention that several cases indicate that a military or police officer acting in the course of his employment is nevertheless subject to prosecution under provincial highway traffic Acts regarding safe driving unless it can be established that breach of those Acts was necessary to the performance of his duties; see R. v. McLeod, [1930] 4 D.L.R. 226 (N.S.S.C. in banco); R. v. Stradiotto, [1973] 2 O.R. 375 (C.A.) I see no reason to distinguish between this sort of situation and one where a police officer intentionally offends against provincial laws for the protection of human rights, since it is within the exclusive power of the provinces to legislate regarding the civil aspects of unlawful arrest and detention. As will be seen, this approach is in complete accord with the legislation establishing and governing the R.C.M.P.
66. In my view the present case is governed by the reasoning in the Chartier case. There, the arrest and other actions taken by the police could not be justified as having been done on the basis of reasonable and probable grounds for believing in the guilt of the accused or on any other basis in the Criminal Code . Nor was such a justification attempted here. Indeed, in this case there was no arrest in any real sense that could have brought into play any of the several sections in the Code intended for the guidance of a peace officer (see ss. 25, and 449‑454), but only arbitrary detention, arbitrary, no doubt, on the basis of the uncontroverted finding of the Commission, in its purpose, its duration and in the matter in which it was effected, but also arbitrary in the sense of being unlawful. The latter sense, as I have already indicated, is the sense in which the word is used in s. 7. That was the position taken by counsel for the Commission, and I agree with him that that provision only commences where the Criminal Code leaves off; it is complementary legislation. Nothing prevents the Commission, of course, from taking account of the factors that make it arbitrary in the broader sense in imposing compensation and otherwise in dealing with the matter.
67. In his judgment, however, my colleague, Estey J., has drawn attention to the fact that the complaint procedure of the human rights commission is not the only means by which the Code attempts to give effect to s. 7. Section 35(2) imposes a general penalty for violating any right declared in the Code. My colleague reasons that in conjunction with s. 35(2), s. 7 creates an offence of arbitrary arrest or detention which purports to define the boundaries within which an arrest or detention is authorized, a matter which, where the arrest occurs in the course of enforcement of criminal law, is itself, he adds, in relation to criminal law or procedure. Section 35(2) reads as follows:
35....
(2) Every person who deprives, abridges or otherwise restricts or attempts to deprive, abridge or otherwise restrict any person or class of persons in the enjoyment of a right under this Act, or any other Act administered by the commission, or who contravenes any provision of any such Act for which no other penalty is imposed, is guilty of an offence and liable on summary conviction to the penalties provided in subsection (3).
68. Assuming that the enforcement of s. 7 by means of a penal provision like s. 35(2) is unconstitutional as infringing on the criminal law, it by no means follows that the enforcement of s. 7 by the proceedings taken by the Commission pursuant to the complaint procedure set forth in the Code is also unconstitutional. I have already given reasons why the latter course, taken by itself, is constitutionally permissible. Why should it become unconstitutional merely because the Act provides a separate enforcement mechanism that is constitutionally tainted?
69. One could conceivably argue, I suppose, that in these circumstances the scheme taken as a whole becomes unconstitutional. However, a court should not go out of its way to adopt that position if it can be avoided. What is clear here is that the legislature provided for two quite distinct procedures for giving life to the right declared in s. 7, one (the complaint procedure) constitutional, the other (the penal provision in s. 35(2)), I would concede, probably not. There is no reason to think the two procedures were thought to be dependent on one another. Indeed, in practice, penal provisions like s. 35(2) are peripheral to the operation of human rights legislation, a fact that would incline me to read s. 35(2), a general penal section appearing in Part V of the Act, as not being intended to apply to s. 7 if such application would result in rendering its enforcement by means of the complaint procedure unconstitutional. Section 35(2) may, in fact, be severable, depending on its impact on other provisions. At all events, these questions involve more general issues not raised by counsel and which, therefore, do not arise for determination. Counsel simply did not frame his case in this way.
70. I should perhaps also observe that s. 35(2) is entirely different from another provision of the Code, s. 35(1), which imposes punishment to ensure compliance with orders of the Commission or a board of inquiry. The latter, which finds a counterpart in most human rights legislation, is a mere enforcement provision incidental to the complaint procedure and is justifiable under s. 92(15) of the Constitution Act, 1867 .
71. I, therefore, conclude that this ground of appeal fails.
Investigation of R.C.M.P. Administration
72. Counsel for the appellant R.C.M.P. officers also contended that the proceeding before the Commission was tantamount to an investigation into the management and administration of the R.C.M.P. If he is correct in this, I agree that his clients are entitled to succeed. In Attorney General of Quebec and Keable v. Attorney General of Canada, supra, this Court held that Parliament had validly established the R.C.M.P. and that Parliament, therefore, had exclusive jurisdiction over its management and administration. It followed that a province could not authorize an enquiry into the R.C.M.P.'s management and administration. Later, in Attorney General of Alberta v. Putnam, supra, this Court applied this principle to the management and administration of the force in relation to its duties under a contract between the federal government and a province whereby the R.C.M.P. was to carry out police functions falling within the ambit of the province's jurisdiction over the administration of justice under s. 92(14) of the Constitution Act, 1867 . In that case, the court further held that the management and administration of the force extended to internal rules for disciplining its officers.
73. Counsel for the respondent Board countered by saying that the Commission's proceedings were not directed at the management and internal practices of the R.C.M.P. but at the conduct of individual R.C.M.P. officers that formed the subject‑matter of the complaint.
74. Before attacking the issue frontally, I shall dispose of a subsidiary issue advanced by counsel for the R.C.M.P. officers. To properly fit within the scheme for the protection of human rights (including freedom from arbitrary arrest and detention) in The Saskatchewan Human Rights Code, he submitted, it is necessary for the Commission to determine what changes will be required in the practices of the R.C.M.P. to deal with the complaint. He noted that in seeking the intervention of the Commission, the complainants had expressed their belief that their experience in this case was indicative of a general pattern and practice of the R.C.M.P. Moreover, counsel added, s. 31(3) of the Code contemplates an inquiry into patterns and practices that deny rights secured by the Code.
75. I cannot accept this submission. While the complaint filed with the Commission expressed the belief that the action complained of was indicative of a general pattern or practice, the appellants do not allege that the Board actually carried out an investigation of such a pattern or practice. Indeed, counsel for the Board conceded that it did not have the power to investigate general patterns or practices of the R.C.M.P. Keable and Putnam would not permit this. What the Board did do was to conduct an investigation into the conduct of individual R.C.M.P. officers on a particular occasion. The fact that s. 31(3) of the Code is constitutionally inapplicable to the R.C.M.P. does not prevent the Commission from exercising its other powers in conducting an investigation into a complaint about specific unlawful conduct by members of the R.C.M.P. on a particular occasion.
76. Such an investigation in no way conflicts with Keable and Putnam. Keable held that a provincial commission on inquiry could not extend its investigation into the administration and operation of the R.C.M.P. No such inquiry was made here. Putnam involved an appeal to a provincial authority from a disciplinary decision of the R.C.M.P. An internal code of discipline is directly concerned with the management and discipline of the R.C.M.P. Thus an attempt by a province to provide a disciplinary procedure for the R.C.M.P., or to provide for an appeal from the internal disciplinary review by the R.C.M.P., as was the case in Putnam, is unconstitutional. But the situation here is completely different. The present case deals with a complaint by third parties that their rights under provincial law have been infringed by the conduct of individual R.C.M.P. officers. Leaving aside any question of immunity that may arise regarding conduct in the course of duty, individual members of the R.C.M.P. are subject to provincial laws of general application in the same way as other citizens.
77. In both Keable, at p. 242, and Putnam, at p. 277, the investigations were carefully distinguished from a criminal investigation into the activities of individual members of the R.C.M.P. What was found objectionable in the Keable inquiry were those aspects of its mandate designed for the purpose of investigating the internal management of the R.C.M.P. Pigeon J., who wrote the majority judgment, had this to say, at p. 243:
The words [TRANSLATION] "and the frequency of their use" at the end of paragraph a) as well as the words "and the frequency of their use" at the end of paragraph c), of the Commissioner's mandate, do not contemplate an inquiry into criminal acts but into the methods used by the police forces. Those are essential aspects of their administration and therefore, to the extent that those words relate to the R.C.M.P., what they purport to authorize is beyond provincial jurisdiction to inquire into. That this is the intended scope of the inquiry is apparent from the subpoenas which call for the production of all operating rules and manuals. For similar reasons, I would hold that paragraph d) is invalid in so far as it relates to the R.C.M.P. This paragraph pertaining to recommendations, following as it does provisions contemplating an inquiry into the regulations and practices of the R.C.M.P., is clearly intended to invite, as a purpose of the inquiry, recommendations for changes in such regulations and practices. Inasmuch as these are the regulations and practices of an agency of the federal government, it is clearly not within the proper scope of the authority of a provincial legislature to authorize such an intrusion by an agent of a provincial government.
(Emphasis in original.)
But as he had stated earlier, at p. 242, "...members of the force enjoy no immunity from the criminal law and the jurisdiction of the proper provincial authorities to investigate and prosecute criminal acts committed by any of them as by any other person ...." There is no allegation of colourability here.
78. Laskin C.J. appears to have put it on a broader basis in Putnam, where he referred to the fact that "R.C.M.P. officers are not immune from the duty which lies upon all citizens to obey the law and that in case of an alleged infraction they may be subject to prosecution and punishment". That statement is no more than an expression of the Rule of Law, and extends to the law respecting civil rights in the province and its enforcement either by the courts in the traditional manner or by newly created institutional structures such as human rights commissions, a matter I have already explored.
79. Far from being contrary to federal legislation, the conclusion that members of the R.C.M.P. must conform with the law is in harmony with the approach taken in the Royal Canadian Mounted Police Act, R.S.C. 1970, c. R‑9, and its regulations. Thus s. 37(3) of the Act reads:
37. ...
(3) Nothing in subsection (2) prejudices any right or remedy that may exist apart from this section against any person ... for any injury to the person or damage to or loss of property in respect of which a member is under this section ordered to make payment of damages or restitution... .
As well, s. 25 of the Regulations [Royal Canadian Mounted Police Regulations, C.R.C. 1978, c. 1391] provides:
25. It is the duty and responsibility of every officer and of every person in charge of a post to ensure that there is at all times strict observance of the law, compliance with the rules of discipline and the proper discharge of duties by all members of the Force.
(Emphasis is mine.)
There is thus nothing in this legislation that in any way suggests that R.C.M.P. officers are intended to be above the law.
80. The R.C.M.P. was created to enforce the law; it would be ironic if membership in the force constituted a shield for officers who infringed it. But that is not the case. Specific conduct of individual officers in breach of the law cannot be viewed as coming within the management and administration of the R.C.M.P., and provincial investigations into allegations of such conduct are permissible. In Keable, a provincial inquiry into allegedly illegal acts undertaken by various members of the force was not deemed unconstitutional. What that case held was invalid, we saw, was an investigation into the administration and management of the R.C.M.P.
81. Finally, Putnam stands for the proposition that a province cannot prescribe a code of discipline for the R.C.M.P. The fact, however, that the conduct of an R.C.M.P. officer might give rise to internal disciplinary action against his has nothing to do with the administration of a provincial law of general application like The Saskatchewan Human Rights Code.
82. I would, therefore, uphold the authority of the Board to adjudicate on the issues assigned to it.
Conclusion
83. For these reasons I would dismiss the appeal with costs and reply to the constitutional questions in the following manner:
84. Question (1): No
85. Question (2): A provincially established Board of Inquiry is constitutionally empowered to adjudicate upon a complaint that members of the R.C.M.P. while on duty arbitrarily arrested or detained certain persons contrary to the provisions of s. 7 of The Saskatchewan Human Rights Code. Such a proceeding is not directed to the administration and management of the R.C.M.P. or the supervision and control of the exercise by the R.C.M.P. of powers to arrest and detain persons as a matter of criminal law and procedure in criminal matters.
Appeal allowed with costs, Dickson C.J. and Wilson and La Forest JJ. dissenting.
Solicitor for the appellants: Roger Tassé, Ottawa.
Solicitor for the respondent: Milton C. Woodard, Regina.
Solicitor for the intervener the Attorney General for Ontario: Archie Campbell, Toronto.
Solicitors for the intervener the Attorney General of Quebec: Réal A. Forest, Jean Bouchard and André Binette, Ste‑Foy.
Solicitor for the intervener the Attorney General for New Brunswick: Gordon F. Gregory, Fredericton.
Solicitor for the intervener the Attorney General for Alberta: Ross W. Paisley, Edmonton.
Solicitor for the intervener the Attorney General for Saskatchewan: Richard Gosse, Regina.
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