Vignola v. Keable, [1983] 2 SCR 112

Supreme Court of Canada

Vignola v. Keable, [1983] 2 S.C.R. 112

Date: 1983-10-13

Henri-Paul VignolaAppellant;

and

Jean-F. Keable Respondent.

File No.: 16342.

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

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

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Injunction—Provincial inquiry commission—Injunction to prohibit Commissioner from communicating findings relating to police information sources—Injunction unnecessary—Code of Civil Procedure, art. 758.

Respondent chaired an inquiry commission with a mandate to investigate and report on various allegedly illegal or reprehensible incidents or acts in which various police forces were involved. In view of respondent Commissioner’s intention to subpoena Montreal Urban Community Police Force officers and require them to publicly reveal the existence and identity of certain information sources, appellant, the Director of the Force, filed with the Commission an affidavit objecting to disclosure of such confidential information. At a subsequent public hearing, respondent disclosed the identity of an individual whom he believed to be a police informer, and then sought to compel a peace officer to confirm it. Appellant then filed a motion for an injunction in the Superior Court, to prohibit the communication or publication by respondent of any information concerning police informers and other police information sources. The Superior Court dismissed the motion and the Court of Appeal affirmed the judgment.

Held: The appeal should be dismissed.

In view of the issuance of the writ of evocation in the related case of Bisaillon v. Keable, [1983] 2 S.C.R. 60, the injunction requested in the case at bar is no longer necessary and must be denied.

Bisaillon v. Keable, [1983] 2 S.C.R. 60; Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218, referred to

APPEAL from a judgment of the Quebec Court of Appeal, [1980] C.A. 531, which affirmed a judgment of the Superior Court rendered on

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December 21, 1979 dismissing a motion for an interlocutory injunction. Appeal dismissed.

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

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

English version of the judgment of the Court delivered by

BEETZ J.—Appellant is the Director of the Montreal Urban Community Police Department (“MUCPD”) and respondent is a commissioner appointed pursuant to the Public Inquiry Commission Act, R.S.Q. 1964, c. 11 (now R.S.Q. 1977, c. C-37). Appellant filed in the Superior Court a motion for an injunction seeking to prohibit the publication by respondent Commissioner of any information regarding MUCPD informers and other information sources. The Superior Court dismissed the motion and the Court of Appeal affirmed this judgment.

In his appeal, appellant is asking this Court to reverse the judgments of the Court of Appeal and the Superior Court and to grant the injunction sought by him.

The case is related to that of Bisaillon v. Keable, [1983] 2 S.C.R. 60, in which judgment is being rendered today. The two appeals were heard concurrently and argued by the same counsel, who filed a single submission on each side. However, each case concerns different subject-matters and the Superior Court and Court of Appeal rendered distinct judgments in each case, although the judgments rendered in the case at bar make extensive reference to those rendered in Bisaillon v. Keable.

I—Facts

The facts are not in dispute: all those alleged in the motion for an injunction are admitted by respondent Commissioner.

Since June 15, 1977 respondent Commissioner has presided over a public inquiry commission the mandate of which has been amended several times. The text of this mandate as it read at the relevant time has been reproduced in full in Bisaillon v.

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Keable, supra. I do not think it is necessary to cite it again.

Turgeon J.A. wrote the majority reasons of the Court of Appeal, and L’Heureux-Dubé J.A. concurred with him. He summarized the circumstances giving rise to the case in part as follows:

[TRANSLATION] In November 1979 it appeared that respondent intended to subpoena Montreal Urban Community Police Department officers and require them to publicly reveal the existence and identity of certain police information sources and confidential Montreal Urban Community Police Department methods of investigation and operation. Appellant, the Director of the Department, swore and filed before respondent, at a public hearing on November 20, 1979, an affidavit citing the principle of public order and the public interest in preserving the confidentiality of police information sources and confidential police methods of operation and investigation, and objecting to any peace officer in his Department testifying regarding the said confidential information.

On November 27, 1979 respondent in a public statement disclosed the identity, and in addition sought to compel a Montreal Urban Community Police Department officer to reveal, or to confirm, the identity of an individual whom respondent believed to be a police informer.

It is this peace officer who, on November 27, 1979, caused a motion for a writ of evocation against respondent to be filed, joining as a party the Attorney General of the province of Quebec; and the following day, November 28, 1979, appellant as head of the peace officers and the police force instituted the proceedings at bar.

In addition, according to the allegations of the motion for an injunction, the newspaper The Gazette reported in its edition of November 28, 1979, under the headline “Keable names two at hearing as informer and “dupe” ”, that one Jean-Paul Brodeur, described by the newspaper as an employee of respondent Commissioner, had stated that the person whom respondent Commissioner believed to be a police informer, and whom he had identified as such at the hearing on November 27, had attended earlier private meetings of Commission staff with his controller and actually stated that he was a police informer.

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The motion for an injunction also contained the following allegation:

[TRANSLATION] 17.—In the course of such an inquiry, moreover, with the mandate in its present form, it is reasonable to assume that defendant-respondent will from time to time have documents or other information that disclose or make it possible to identify Montreal Urban Community Police Department information sources.

Appellant submitted in his motion that disclosing this information would be contrary to law and the public interest and would cause irreparable harm to the administration of justice and the effectiveness of the MUCPD, in that such disclosures would be likely to cause information sources to dry up.

The conclusions sought by appellant in his motion for an injunction are as follows:

[TRANSLATION] … order and direct the said Commissioner, defendant-respondent Jean-F. Keable, and any other person assisting or working with or for him, in connection with the mandates given to him by the Orders in Council filed jointly as No. R-1:

(a) to cease and desist from communicating to any person, whether orally, in writing or by any other means, any Montreal Urban Community Police Department information source or the identity of any person who has provided, or whom he believes has provided, confidential information to the said Department;

(b) to cease making any public or other statements regarding Montreal Urban Community Police Department information sources, or the identity of the Department’s informers;

(c) not to publish any document, writing, recording or other evidence, or any copy of the same, disclosing or making it possible to identify Montreal Urban Community Police Department information sources;

Appellant has also filed conclusions seeking the immediate and provisional granting of an interlocutory injunction, but according to the submission which he filed in this Court, which is not contradicted by respondent Commissioner on this point, [TRANSLATION] “as respondent undertook to keep such documents and information confidential until a judgment was rendered, applicant-appellant … did not insist that the Court immediately and provisionally grant the motion, the inter-

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locutory injunction hearing on which was postponed to December 7, 1979 …”.

II—Superior Court and Court of Appeal judgments

Deschênes C.J. of the Superior Court referred to the reasons which he gave in Bisaillon v. Keable, [1980] C.S. 13, and he concluded:

[TRANSLATION] The Court recognizes the right of respondent to have access to the MUCPD’s information sources and his discretion to conduct his inquiry in public or behind closed doors, subject to the possible effect of an intervention by the Attorney General of Quebec, which however has not yet been filed.

The Court accordingly cannot, by the requested injunction order, truncate this right to this discretion on the part of respondent Commissioner and claim to be able to exercise them in his place.

There may legitimately be different opinions as to the procedure adopted by the Commissioner and the advisability of making public the information which he obtains regarding MUCPD information sources. Nevertheless, in acting in this way the Commissioner is still within the limits of his prerogatives.

Furthermore, the actions which the motion seeks to prohibit are closely linked to the proceedings and to the quasi-judicial tone taken by the inquiry. A further bar to the conclusions of applicant is represented by article 758 C.C.P., which provides: “An order of injunction can in no case be granted to restrain legal proceedings …” Attorney General of Quebec and Keable v. Attorney General of Canada et al., [1979] 1 S.C.R. 218, at p. 225.

The unanimous judgment of the Court of Appeal was published sub nom. Vignola v. Keable, [1980] C.A. 531. At page 532, Turgeon J.A. referred to the reasons which he wrote in Bisaillon v. Keable, [1980] C.A. 316, and he went on to say:

[TRANSLATION] In Bisaillon I recognized that respondent had a right of access to Montreal Urban Community Police Department information sources and a discretion to conduct his inquiry in public or behind closed doors, subject to an intervention by the Attorney General of Quebec which has not yet appeared.

However, personally I regret that Commissioner Keable has decided to make public the information which he obtains regarding Montreal Urban Community Police Department information sources. In so doing, he risks doing considerable harm to the Police Department. In my opinion, he should in his discretion have

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conducted his inquiry on this delicate matter behind closed doors. However, in acting as he did the Commissioner was still within the limits of his jurisdiction.

Turgeon J.A. then adopted the argument used by the trial judge, based on art. 758 of the Code of Civil Procedure, and before concluding that the appeal should be dismissed, he cited the following passage from the reasons of Pigeon J. in Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218 (hereinafter referred to as Keable No. 1), at pp. 224-25:

In the Superior Court, Hugessen J. dismissed the application on the basis that the Commissioner was not a court and therefore not amenable to evocation: [TRANSLATION] “respondent Commissioner is not a court and will become one only when and to the extent that he decides to impose penalties in the exercise of his ancillary power”.

The Court of Appeal was unanimous in rejecting that view. Under s. 7 of the Public Inquiry Commission Act, a commissioner has “with respect to the proceedings upon the hearing, all the powers of a judge of the Superior Court in term”. Relying on this provision the Commissioner has issued subpoenas to the Solicitor General of Canada and rendered decisions requiring him to produce a number of documents pertaining to the administration of the Royal Canadian Mounted Police. In so acting, the Commissioner was claiming to exercise some powers of a Court against the Solicitor General. The latter could not be required to wait until he was sentenced for contempt in order to challenge the validity of the orders and of the Commission itself if he had good legal grounds to dispute their validity. The writ of evocation under the present Code of Civil Procedure is the equivalent of certiorari and prohibition combined: Three Rivers Boatman v. Canada Labour Relations Board. Prohibition is properly applied for at the outset of the impugned proceedings: Bell v. Ontario Human Rights Commission. It was suggested that an injunction would have been the proper remedy but, under art. 758 C.C.P., “an order of injunction can in no case be granted to restrain legal proceedings”.

Monet J.A., who dissented in Bisaillon v. Keable, wrote at p. 533:

[TRANSLATION] In Bisaillon v. Keable, I concluded that a writ should be issued by the Superior Court pursuant to article 848 C.C.P. and an order made directing respondent to stay any proceedings, inquiry or

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examination involving Mr. Bisaillon, a detective-sergeant of police with the Montreal Urban Community. In my opinion, the record—or specifically a part of the record—of the case should be transferred to the Superior Court.

On this basis, respondent has lost control over this part of the case, at least until a final judgment is rendered by the Superior Court. Accordingly, the fear which appears to underlie appellant’s conclusions seems to me to be somewhat unwarranted. I think it is unlikely that respondent Commissioner, who is also a member of the Bar, would act in the interval in the way in which appellant suggests. I therefore do not consider that in the circumstances the injunction requested could at this time be “considered to be necessary”.

III—Constitutional questions

The constitutional questions stated by order of the Chief Justice are identical to those stated in Bisaillon v. Keable. They are quoted in full in the reasons for judgment given today in respect of that case. I see no need to quote them again or to answer them a second time. Additionally, the questions relate primarily to the facts of Bisaillon v. Keable, and less to those of the case at bar.

IV—Whether an injunction necessary

I do not think that the argument based on art. 758 of the Code of Civil Procedure can be maintained against appellant, for I do not think that “oral or written communications” and “public or other statements” such as those contemplated by the conclusions of the application for an injunction are “legal proceedings” within the meaning of art. 758 of the Code of Civil Procedure. The proceedings referred to by Pigeon J. in the above-cited passage from Keable No. 1 were subpoenas and orders to produce certain documents; in issuing these subpoenas and orders, the respondent Commissioner claimed to be exercising the powers of a court. Acts like the public statement made by respondent Commissioner’s employee to the newspaper The Gazette on November 28, 1979 are not in my opinion legal proceedings. They are physical actions: and even if the report which respondent Commissioner is required to make to the Lieuten-

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ant Governor in Council may be more than a physical action, I hardly see how it could be regarded as a legal proceeding.

In any case, I conclude that the injunction requested by appellant should be denied on other grounds.

Like Monet J.A. in the Court of Appeal, [TRANSLATION] “I do not consider that in the circumstances the injunction requested could at this time be “considered to be necessary” ”.

Paragraph 17 of the motion for an injunction states that it is reasonable to assume, in view of his mandate, that respondent Commissioner will from time to time have documents or other evidence disclosing or making it possible to identify MUCPD information sources.

However, as stated in Bisaillon v. Keable, [TRANSLATION] “the Attorney General of Quebec, mis en cause, informed the Court that respondent Commissioner had submitted his resignation as commissioner on February 5, 1982 and had delivered a report containing the results of the investigation covering all aspects of the mandate given to the Commission, except for “questions regarding the recruitment of informers by police forces”, questions which could not be resolved before the judgment of this Court in the case at bar and the judgment in Vignola v. Keable …”. The mis en cause further informed the Court that continuing with the Commission’s work would depend on the outcome of the appeal.

It is doubtful that the fears expressed in the motion for an injunction will be realized in the future, in view of the issuance of the writ of evocation in Bisaillon v. Keable and the disposition of the question put to peace officer Émile Bisaillon and of the duces tecum which are declared illegal therein.

If nevertheless respondent Commissioner had already gathered such evidence or documents as are contemplated by paragraph 17 of the motion for an injunction, for example by closed‑door hearings, the use and publication of such evidence would be controlled and limited by the rules stated in Bisaillon v. Keable. However, I do not think the

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Court should issue conditional, hypothetical or indeterminate injunctions. The dismissal of the injunction in the circumstances of the case at bar does not prevent this remedy being used again if there is a definite need to do so and an injunction is the appropriate procedure.

V—Conclusions

I would dismiss the appeal.

The Court of Appeal and Superior Court awarded costs to respondent. I would reverse their decisions on this one point, and direct that no costs be awarded in any court.

Appeal dismissed.

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

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