Di Iorio v. Warden of the Montreal Jail, [1978] 1 SCR 152

SUPREME COURT OF CANADA

Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152

Date: 1976-04-01

Nicola Di Iorio and Gérard Fontaine

Appellants;

and

The Warden of the Common Jail of the City of Montreal Respondent;

and

Rhéal Brunet et al. Mis en cause; and

The Attorney General for Canada, The Attorney General for Quebec, The Attorney General for Ontario, The Attorney General for Alberta, The Attorney General for British Columbia and The Attorney General for New Brunswick Intervenors.

1975: November 18, 19 and 20; 1976: April 1.

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

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Constitutional law — Provincial statute providing for a public inquiry into organized crime — Witnesses refusing to testify sentenced for contempt of court — Distribution of powers — Administration of justice and criminal procedure — Police Act, 1968 (Que.), c. 17, s. 19 — Public Inquiry Commission Act, R.S.Q. 1964, c. 11, s. 1 — British North America Act, ss. 91, 92, 96 and 101 — Code of Civil Procedure, art. 51.

Criminal law — Evidence — Witnesses before a provincial inquiry commission — Protection against self-incrimination — Habeas corpus jurisdiction, civil or criminal — Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5 - Code of Civil Procedure, arts. 309 and 851.

Appellants were found guilty of contempt for having refused to testify at an inquiry before the Quebec Police Commission and sentenced to one year in jail, this being the maximum provided under art. 51 of the Code of Civil Procedure. The inquiry was requested by the Lieu­tenant-Governor in Council pursuant to s. 19 of the Police Act, which authorizes the holding of an inquiry into organized crime. Appellants appealed from their sentence by petitions for writs of habeas corpus with certiorari in aid. These petitions were dismissed by the

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Court of Queen's Bench, Crown side, and by the Court of Appeal of the province of Quebec, and appellants appealed to this Court. They challenged the validity of the Order in Council and of s. 19 of the Police Act on constitutional grounds. Consequently, this Court con­sidered the constitutional question, namely, whether the Order in Council and s. 19 (and other provisions which were really attacked only as related to s. 19) were ultra vires the provincial legislature. Appellants, supported by the Attorney General for Canada, contended that this is criminal law legislation, which under s. 91(27) of the B.N.A. Act is within the exclusive legislative authority of the Parliament of Canada. The respondent and the mis en cause, supported by the Attorneys General for the intervening provinces, claimed that under s. 92(14) the provinces have jurisdiction to legislate in relation to the administration of justice in the province, including the administration of justice in criminal proceedings.

Held (Laskin C.J. and de Grandpré J. dissenting): The constitutional question should be answered in the negative and the appeal dismissed.

Per Martland, Judson, Ritchie and Pigeon JJ.: The scope of "Criminal Law" and "Procedure in Criminal Matters" in s. 91(27) B.N.A. Act is narrowed by the allocation to the provinces of jurisdiction over the "Administration of Justice" in all matters civil and criminal, which has consistently been held to include the detection of criminal activities.

In an examination of the procedure at a coroner's inquiry, this Court recently held in Faber v. The Queen, [1976] 2 S.C.R. 9, that when a person is not charged, the provincial statute requiring him to testify and making him liable to punishment for contempt of court in the event of refusal was valid. The conclusion affirmed by the majority in this Court was that this procedure was not "a procedure in a criminal matter". This was said in a case where, after an open verdict of death due to a crime by a person or persons unknown, the coroner resumed the inquest for the sole purpose of ascertaining who might be charged with such crime. If an inquest carried out with a view to such a consequence can be said not to be a "procedure in a criminal matter", it appears to me that the same must a fortiori be said of an inquiry in conclusion of which no more can be done than the making of a report to the provincial Attorney General. There is no reason to take a different view where the object of the inquiry, instead of being the gathering of information sufficient to lay a charge for criminally causing the death of another person, is the gathering of information identifying persons engaged in organized crime and describing their activities.

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If appellants testify, they will have the benefit of the protection contemplated in the Canada Evidence Act, s. 5(2) of which states that this protection is granted to a witness forced to reply under an Act of any provincial legislature.

The fact that appellants were sentenced to one year in jail does not support appellants' submission that the matter was "criminal". Provincial legislatures are empowered to inflict punishment by fine or imprisonment for violation of provincial laws. In the present case, the sentence was handed down under art. 51 of the Code of Civil Procedure and was coercive not punitive.

Finally, appellants would not be without redress if the legislation was unconstitutional as they contend. Because they were committed under provincial legisla­tion, they should apply to the courts of civil jurisdiction, that is, the Superior Court, by habeas corpus under art. 851 of the Code of Civil Procedure.

Per Martland, Judson, Ritchie, Spence and Dick-son JJ.: Section 92(14) of the B.N.A. Act, which gives the provinces power over "Administration of Justice within the Province", cannot be interpreted as meaning the administration of civil justice alone. Canadian legis­lative history, as well as the development of legal institu­tions within the provinces since Confederation, do not support such a restrictive interpretation. Implicit in the grant to the provinces of exclusive legislative authority in respect of administration of justice and in the grant to the federal government of exclusive legislative authority in respect of criminal law and procedure is an accept-ance of a certain degree of overlapping. However, in the case at bar the Inquiry does not act as a criminal court or exercise criminal jurisdiction: its function is merely to investigate and report. The legislation under attack is based solely on the province's jurisdiction in the "Administration of Justice". This is an independent source of provincial power which does not need to rely on some other head of power.

The exact scope of s. 92(14) of the B.N.A. Act has never been dealt with by this Court. The constitutional question raised by the case at bar touched upon directly only in In re Public Inquiries Act.' In re Clement [1919] 3 W.W.R. 115, where it was held that a province could make investigations into breaches of Dominion laws since the ferreting out of crime and the identification of criminals was one of the functions under the administra­tion of justice, and during such an inquiry could compel a witness to give evidence which might tend to incrimi­nate him. As is the case with a coroner's inquest, which

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in Faber v. The Queen, [1976] 2 S.C.R. 9, was held not to be a matter of criminal law, the Quebec Crime Inquiry deals with broad social interests and there is no lis or accused; the concern is the gathering of informa­tion, not adjudication.

In light of the provisions of the Canada Evidence Act, s. 5(2) and the Code of Civil Procedure, art. 309, it cannot be maintained that the Crime Commission's powers of subpoena and imprisonment for contempt interfered with a citizen's right to protection against self-incrimination. This right, which originated in common law, has been abolished in Canada. However, a person who appears before a provincial inquiry commis­sion is a "witness" within the meaning of s. 5 and benefits from the protection given by subs. (2). Whether or not one agrees with a result which may force a person to assist in an investigation of his criminal activity, Canadian laws, both federal and provincial, compel such a result. Quebec's Crime Inquiry introduces no new and insidious form of investigation into our judicial system and there is no evidence before the Court that it is a colourable attempt to evade the procedural provisions of the Criminal Code.

Per Beetz J.: Before Confederation, the provinces were in charge of the administration of justice, including criminal justice. Section 91(27) of the B.N.A. Act gave exclusive legislative authority in criminal law, substan­tive and procedural, to the Parliament of Canada. But subject to this provision and to the paramountcy of federal law enacted under primary or ancillary federal jurisdiction, the provinces were to remain responsible in principle for the enforcement of criminal law and to retain such power as they had before with respect to the administration of criminal justice. Section 92(14) of the B.N.A. Act does not distinguish between civil and crimi­nal justice: the natural meaning of the expression "the administration of justice" is broad enough to encompass both. As for the power given to Parliament under subs. (27), it was described by this Court in A.G. Que. v. A.G. Can., [1945] S.C.R. 600, as the power to determine what shall or what shall not be "criminal", and to determine the steps to be taken in prosecutions and other criminal proceedings before the courts. Section 19 of the Police Act does not correspond to this description, and must therefore be construed as being a provision

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bearing on the administration of criminal justice.

The penalties imposed under the impugned legislation in cases where witnesses refuse to testify are of a coercive nature. Even if they are punitive, s. 92(15) would suffice to insure their constitutionality unless they be used as a colourable device to create new crimes, or to punish old ones otherwise than under the Criminal Code.

Per Laskin C.J. and de Grandpré J., dissenting: If one accepts the argument that it is open to a province to authorize a provincially-established tribunal to conduct an inquiry, with supporting sanctions to compel appearance and testimony, into crime and into crime in all its ramifications, the provinces would then have this power in respect of any matter which falls with exclusive federal competence, such as bankruptcy, insolvency and so on. In support of the constitutionality of s. 19 of the Police Act, the provinces purport to find in the legisla­tive power in relation to "the administration of justice in the Province" ample competence to authorize inquiries which do not involve accusations or charges and do not involve prosecutions for offences. This argument rests on a distinction, which does not seem proper, between a coercive inquiry into criminality and a coercive inquiry into other fields where there is exclusive federal legisla­ture power.

Although it is recognized that s. 92(14) of the B.N.A. Act gives the provinces a source of authority that enables them to blend with exercises of federal power when the latter is used to invest provincially-established Courts with jurisdiction in matters within exclusive fed­eral competence, federal overriding authority is always in reserve. Thus, although the Parliament of Canada has designated the provincial courts to administer criminal law, they have to do so according to procedures which under s. 91(27) of the B.N.A. Act, are within exclusive federal competence.

None of the cases cited really decided the constitu­tional question raised in the case at bar. The ancillary questions which they dealt with have no influence on the validity of the challenged provision, namely, s. 19 of the Police Act. Although a province may establish provin­cial or local police forces, it cannot invest its police

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officers with some fresh power if no such power was conferred by the existing federal criminal law. To the extent to which enforcement of the criminal law is left with these police forces, it is there by virtue of federal law or by the continuation of pre-confederation powers. A province may not establish an inquiry commission which, by stopping at investigation and detection and avoiding entry or possible entry into prosecution, would take over this large area of the criminal law, save for the minimal restraint of s. 5 of the Canada Evidence Act. Such an inquiry into crime has nothing to do with the administration of justice and is a direct invasion of exclusive federal competence. It is not possible, by pre-scribing a different procedure for enforcing the criminal law than what Parliament ordains, for example, by doing "wholesale" what is done under the Criminal Code by "retail", to change the distribution of exclusive legislative authority in the field of criminal law and criminal procedure.

Since Parliament could authorize an inquiry into the same subjects as those covered by the challenged legisla­tion, the B.N.A. Act should be construed as far as possible to preclude both levels of governmental author­ity from being entitled to converge on an individual for the same purpose and possibly even at the same time.

[Faber v. R., [1976] 2 S.C.R. 9; In re Public Inquiries Act: In re Clement, [19.19] 3 W.W.R. 115, 33 C.C.C. 119, 48 D.L.R. 237; Re Wilson Inquest (1968), 66 W.W.R. 522, applied; R. v. Pelletier (1974), 4 O.R. (2d) 677; Proprietary Articles Trade Association v. Attorney General for Canada, [1931] A.C. 310; Refer­ence re Validity of the Combines Investigation Act and of s. 498 of the Criminal Code, [1929] S.C.R. 409; R. v. Coote (1873), L.R. 4 P.C. 599; In re Prohibitory Liquor Laws (1895), 24 S.C.R. 170; Reference re the Adoption Act, [1938] S.C.R. 398; R. v. Coroner of Langley (1968), 67 D.L.R. (2d) 541, rev'd. sub nom. R. v. McDonald (1968), 2 D.L.R. (3d) 298; Wolfe v. Robin-son, [1962] O.R. 132, followed; Batary v. Attorney General for Saskatchewan, [1965] S.C.R. 465, distin­guished; McKay et al. v. R., [1965] S.C.R. 798; Attor­ney General for Quebec v. Attorney General for Canada, [1945] S.C.R. 600; Valin v. Langlois (1879), 3 S.C.R. 1; Attorney General for Ontario v. Hamilton Street Railway Company, [1903] A.C. 524; Goodyear Tire & Rubber Co. v. R., [1956] S.C.R. 303; Kalick v.

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R. (1920), 61 S.C.R. 175; Bédard v. Dawson, [1923] S.C.R. 681; Harrison v. R., [1925] 2 W.W.R. 407; Webster & Kirkness v. Solloway Mills & Co. Ltd., [1930] 3 W.W.R. 445; Staples v. Isaacs, [1940] 2 W.W.R. 657; Klein v. Bell, [1955] S.C.R. 309; Minister of National Revenue v. Lafleur, [1964] S.C.R. 412; In re Storgoff [1945] S.C.R. 526; Canadian Pacific Wine Co. v. Tuley, [1921] 2 A.C. 417; Re Poje, [1953] 1 S.C.R. 516; Re Armstrong, [1892] 1 Q.B. 327; Birks v. City of Montreal, [1955] S.C.R. 799; Switzman v. Elbling, [1957] S.C.R. 285, referred to.]

APPEAL from a decision of the Court of Appeal of Quebec[1] affirming a judgment of the Court of Queen's Bench, Crown side, dismissing appellants’ petitions for writs of habeas corpus and certiorari in aid. Appeal dismissed, Laskin C.J. and de Grandpré J. dissenting.

René Maranda, for the appellants.

Gérard Tremblay, Roger Thibaudeau, Q. C., Jacques Richard and Olivier Prat, for the respondent and the mis en cause.

Philippe Landry, Q.C., for the Attorney General for Canada.

M. Manning, for the Attorney General for Ontario.

W. Henkel, for the Attorney General for Alberta.

F. A. Melvin and N. J. Prelypchan, for the Attorney General for British Columbia.

Hazen Strange and B. A. Crane, for the Attor­ney General for New Brunswick.

The judgment of Laskin C.J. and de Grandpré J. was delivered by

THE CHIEF JUSTICE (dissenting)—I have had the advantage of seeing the reasons in this appeal prepared by my brother Pigeon before embarking on my own. A constitutional issue of far-reaching significance is raised here which does not appear to have been faced as directly in any previous decision

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as it must be faced here. The issue, in short, is this. Since the Parliament of Canada has exclusive legislative authority in relation to the criminal law including procedure in criminal matters (and I shall refer later to the judicially recognized scope of this power), is it open to a province to authorize a provincially-established tribunal to conduct an inquiry, with supporting sanctions to compel appearance and testimony, into crime and into crime in all its ramifications, including the organi­zations and persons involved? And if a province has this power in respect of crime, would it not have it also in respect of bankruptcy and insolven­cy, indeed in respect of any matter which falls with exclusive federal competence, as do the matters just enumerated, and this simply because an aspect of the question might be said to be within s. 92? To take another example, akin in legislative sub­ject matter to that covered by the inquiry in the present case, would it not also be open to the province to authorize a full-scale inquiry into monopoly and other anti-competitive practices which have been dealt with by the Parliament of Canada, with judicial approval, under its criminal law power?

The need, the desirability of an inquiry such as that put on foot by Order-in-Council No. 2821-72 issued by the Lieutenant-Governor in Council of Quebec under s. 19 of the Police Act, 1968 (Que.), c. 17, as amended, is beside the point. We are not concerned here with some private inquiry, with a piece of research by a scholar, with a journalistic investigation, but with a state-sanctioned inquiry by a public tribunal with compulsory and punitive powers against those refusing to cooperate in its proceedings.

The provincial case, supported by four other provinces and opposed by the Government of Canada, is founded on the legislative power con­ferred on the provincial Legislatures by s. 92(14) of the British North America Act, assisted by the provisions for sanctions found in s. 92(15). I need not dwell on s. 92(15) in this case. If the Province of Quebec has validly established the inquiry I would not question the grant of authority to the tribunal conducting it to punish for contempt

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recalcitrant witnesses or persons properly subpoe­naed who refuse to be sworn.

Section 92(14) of the British North America Act confers the following legislative power upon provincial Legislatures:

92....

14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction and including Proce­dure in Civil Matters in those Courts.

A number of issues raised by the relation of this power to other prescriptions of the British North America Act, such as ss. 96 and 101, and of course, the prescriptions respecting federal legisla­tive power under s. 91, may be quickly laid to rest. A province may establish Courts or tribunals to administer matters falling within its legislative power, provided that the limitations as to the character and stature of the courts or tribunals arising under s. 96 are observed: see Labour Rela­tions Board of Saskatchewan v. John East Iron Works Ltd.[2]; Tomko v. Labour Relations Board (Nova Scotia[3]'; and see also Dupont v. Inglis[4]. A province may establish Courts and endow them with a jurisdictional capacity to administer even federal legislation, subject to the power of the Parliament of Canada to repose exclusive jurisdic­tion in such matters in a Court of its own creation under s. 101: see Board v. Board[5]; cf. Hellens v. Densmore[6]; and see Reference re Divorce Court

Act (P.E.I.)[7]; Pringle v. Fraser[8]. Where a province

establishes such a Court, the substantive law administered therein, being in relation to matters falling within exclusive federal competence, would have to come from federal enactments; cf Attorney

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General of British Columbia v. McKenzie[9]. The Parliament of Canada could and has, in some cases, fortified this exercise of federal jurisdiction by provincial courts by designating them to be the judicial enforcement agencies. The commonest illustration of this is, of course, in the federal provisions for enforcement of the criminal law.

A provincial Court which administers federal law, be it a superior court or not, may do so through its own procedures unless the federal legislation prescribes the procedure to be followed. An example of this is found in the field of bank­ruptcy. There is one important qualification to provincial court resort to its own procedure and that is where the procedure is in a criminal matter. This, under s. 91(27) of the British North America Act, is within exclusive federal competence: see In re Storgoff[10] and cf Minister of National Reve­nue v. Lafleur[11].

The submissions on behalf of the Attorney Gen­eral of Quebec and of the supporting provincial Attorneys General do not, as I appreciate their force, deny the foregoing propositions but rather distinguish them by purporting to find in the legis­lative power in relation to "the administration of justice in the Province" ample competence to authorize inquiries which do not involve accusa­tions or charges and do not involve prosecutions for offences. The fact that, consequentially, charges may result, or that remedial legislation may be called for which only the Parliament of Canada may enact, is not, according to the provin­cial contentions, sufficient to deny provincial au­thority to establish the inquiry. We are thus brought to consider not what s. 92(14) does not cover but rather what it embraces.

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The argument before this Court, as advanced by the proponents of the validity of this inquiry, appeared to me to rest, to some degree at least, on a distinction between a coercive inquiry into crimi­nality and a coercive inquiry into other fields where there is exclusive federal legislative power. The one is said to relate to the administration of justice in the Province; the others, apparently, not so. I fail to see the distinction. A coercive inquiry, say into the operation of bankruptcy laws, or practices relating to bankruptcy and insolvency is as much an inquiry into the administration of justice, civil justice in fact, as an inquiry into crime and criminality; and if the latter is validly open to a Province, so must be the former; and so must be any coercive inquiry which a Province may wish to mount into fields where exclusive legislative power rests with the Parliament of Canada. Why not, to take another example, an inquiry into penitentiary operations which are within exclusive federal power under s. 91(28) of the British North America Act, on the ground that under s. 92(6) public and reformatory prisons are within provincial jurisdiction? No doubt, the Prov­ince would not claim power to authorize its tri­bunal to require the presence of penitentiary inmates at the inquiry, any more than it could require their attendance in the present case but, apart from that, former inmates and anyone else whom the inquiry tribunal wished to hear could be compelled, if the provincial contention is correct.

It seems to be quite plain that if "administration of justice in the Province", within s. 92(14), extends to civil and criminal justice without limita­tion (and this is the contention here of the Prov­inces), it must extend to any area of civil law or public law or criminal law, regardless of where the legislative power resides substantively in those various fields. True enough, areas other than the criminal law area are not before us, but they can hardly be ignored when an assertion as commanding

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as the one made by the Provinces is presented.

"Administration of justice in the Province" within s. 92(14) is not a head of power which has hitherto been closely examined in the case law. It has been regarded, and properly so, as supporting provincial appointment of judicial officers and Judges other than those covered by s. 96: see, for example, Regina v. Bush[12]. It certainly envisages the provision of facilities through which Courts and like tribunals can carry out their functions, and also, I would say, the appointment of support staff and enforcement officials necessary to assist in the judicial process. In Valin v. Langlois[13], the Supreme Court of Canada took s. 92(14) to relate to the organization of courts of justice for the Province and Henry J. expanded on this to say (at p. 67) that "administration of justice in the Prov­ince" means "the power of legislating for the administration of justice in the Province in regard to the subjects given by the [British North Ameri­ca] Act and, to that extent only, to provide for the constitution, maintenance and organization of pro­vincial Courts, including the procedure necessary for the administration of justice in reference to those and kindred subjects". I do not put Valin v. Langlois forward as a case that has any direct affinity with the present one, especially when it was concerned with the validity of a federal statute imposing duties on provincial Superior Courts and not, as here, with a provincial statute and Order­in-Council whose validity has to be considered in the absence of competing federal legislation. It is, however, indicative of a view of s. 92(14) which, in my opinion, pays due regard to the scheme of distribution of legislative power and to the limita­tions on provincial competence that arise out of the catalogue of exclusive federal powers.

Although, like other heads of provincial power, s. 92(14) cannot be used to invade exclusive feder­al powers, it does nonetheless give the Province a

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source of authority that enables it to blend with exercises of federal power when the latter is used to invest provincially-established Courts with jurisdiction in matters within exclusive federal compe­tence. Federal overriding authority is in reserve, however, in respect of those matters.

It is unnecessary for a Province to rely on s. 92(14) if it would authorize an inquiry into an industry or an activity that is within provincial competence. The Province can rely for this on other heads of power in s. 92 which embrace the industry or the activity within their scope. It would, of course, rely on s. 92(14) if the inquiry was directed to the operation of provincial Courts or of other tribunals that determine rights and liabilities. What is involved here, however, is not of that order.

I do not think that what was said by Duff C.J. in Reference re the Adoption Act[14], at p. 403, as quoted by my brother Pigeon assists the provincial contentions in this case. The learned Chief Justice was speaking principally of the administrative enforcement of the substantive criminal law enacted by Parliament, enforcement by municipal or provincial police forces; and if the generality of his words as to "the suppression of crime and disor­der" and as to "social conditions having a tenden­cy to encourage vice and crime" might suggest a so-called preventive scope for provincial legislation in the field of crime or its incipient conditions, they must be read today as qualified by later decisions of this Court, such as those in Johnson v. Attorney General of Alberta[15], and Switzman v. Elbling and the Attorney General of Quebec[16]. I may refer also in this connection to the statement of the Privy Council in Attorney General of Ontario v. Canada Temperance Federation[17], at p. 207, that "to legislate for prevention appears to be

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on the same basis as legislation for cure".

Bédard v. Dawson and Attorney General of Quebec[18], which is the authority usually relied on to support provincial power to pass legislation (in the words of Duff J., as he then was, in that case) "aimed at suppressing conditions calculated to favour the development of crime rather than at the punishment of crime" (at p. 684), is a case where the Province could claim constitutional support because it was dealing with the use and occupation of property, albeit for purposes prohibited by the Criminal Code. That was the view of this Court in its cautious treatment of the Bédard case in the Switzman case, supra. I know of no case, certainly none in the Privy Council or in this Court, which has recognized an untrammelled right of the Prov­ince to legislate, as it has done here in relation to the criminal law, without even any pretence of some constitutional anchor in substantive provin­cial legislative authority, such as was evident in the recent inquiry by the Cliche Commission, in Quebec, into violence in the construction industry, and in the recent Waisberg Inquiry in Ontario into practices, including unlawful activities, in the building industry.

It is, I think, important to remember in assess­ing the scope of provincial competence under s. 92(14) that this is not a "non obstante" power. Rather, it is federal competence, both in respect of the matters enumerated in s. 91 and in respect of the powers conferred by s. 101, that is conferred "notwithstanding anything in this Act".

Had the Parliament of Canada established an inquiry such as the one in question here, and with

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the same scope, there would be no doubt of its power to do so, nor of its power to designate a provincial tribunal to carry it out: see In re Vancini[19]; Prince Edward Island Marketing Board v. H. B. Willis Inc.[20]; cf Coughlin v. Ontario Highway Transport Board[21]; Registrar of Motor Vehicles v. Canadian American Transfer Ltd.[22] It would certainly be entitled to assert its pre-emi­nence in relation to criminal law and procedure in criminal matters. I understood counsel for the Attorney General of Ontario to deny that the Parliament of Canada may exercise such author­ity, and if I am right in that understanding, I am unable to agree with this submission. It appears to be founded on the history of pre-confederation and post-confederation legislation respecting public in­quiries (see 1844-46 (Can.), c. 38; C.S.C. 1859, c. 13, s. 1; 1868 (Can.), c. 38, ss. 1 and 2), and the exclusion from post-confederation federal legisla­tion of the words "the administration of justice therein", which were included in the pre-confeder­ation inquiries legislation. This, in my opinion, begs the question because it does not give an answer to the scope of the power in relation to "the administration of justice in the Province" in the context of the British North America Act.

Admittedly, prosecution of crime, be it through provincially-organized courts or not, must be based on substantive law and procedure enacted and prescribed by the Parliament of Canada. The pro­vincial contention is that this limitation does not apply if for prosecution of particular charges in particular cases there is substituted a general com­mission of inquiry, an administrative or quasi-judi­cial investigation into crime, though surrounded by sanctions against witnesses and potential witnesses of a kind similar to those available in prosecutions.

Section 19 of the Quebec Police Act, as enacted in 1968, and amended by 1971 (Que.), c. 16, s. 4 and 1972 (Que.), c. 16, s. 1 is a new provision introduced into a new embracing Act respecting

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police forces in Quebec, and I regard it as of some significance that s. 19 exists side by side with s. 1 of the Public Inquiry Commission Act, R.S.Q. 1964, c. 11, as amended. I set out these two provisions in parallel paragraphs, as follows:

19. The Commission shall make an inquiry, whenever requested to do so by the Lieutenant-Gov­ernor in Council, respect­ing any aspect of crime which he indicates.

The Commission shall also make an inquiry into the activities of an organi­zation or system, its ramifications and the per-sons involved, to the extent prescribed by the Lieutenant-Governor in Council whenever he has reason to believe that in the fight against organ­ized crime or terrorism and subversion, it is in the public interest to order such an inquiry to be held.

1. Whenever the Lieu-tenant Governor in Coun­cil deems it expedient to cause inquiry to be made into and concerning any matter connected with the good government of the Province, the conduct of any part of the public business, the administra­tion of justice or any matter of importance relating to public health, or to the welfare of the population, he may, by a commission issued to that effect, appoint one or more commissioners by whom such inquiry shall be conducted.

Section 1 of the Public Inquiry Commission Act goes back, in substance, to s. 1 of 1869 (Que.), c. 8. I notice that both the original and the present s. 1 authorize inquiries to be directed into any matter connected with the good government of the prov­ince and the administration of justice. It is emi­nently arguable that if the contentions of the provincial Attorneys General as to the scope of the authority conferred by the words "administration of justice" is as broad as they allege, it would have been unnecessary to introduce the particular provi­sion as to crime investigations found in s. 19 of the Police Act. As I read s. 1 of the Public Inquiry Commission Act, it is broad enough to authorize the designation of the Quebec Police Commission as an inquiry tribunal under s. 1 and, certainly, its members could be so designated and appointed. The enactment of s. 19, in short, suggests that

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something more than what "the administration of justice in the Province" connotes was introduced, unless it is simply a case of special reference to underline the serious view taken by the Legislature of the matters covered by s. 19.

The competing contentions of counsel brought to the fore a number of cases which call for examination on the constitutional issue in this case. They are, respectively, Regina v. Coote[23]; In re Public Inquiries Act: In re Clement[24]; Batary v. Attorney-General of Saskatchewan[25]; and Faber v. The Queen[26]_.

Regina v. Coote is relied upon for the proposi­tion that a provincial Legislature may provide for an inquiry by a provincially constituted and appointed tribunal into matter that involve or relate to the criminal law, and which therefore are, substantively within exclusive federal legislative jurisdiction. I do not think that the Privy Council's decision says this. The case came to the Privy Council on the question of the admissibility, on a trial for arson, of depositions of the accused taken at a fire marshal's inquiry authorized by provincial legislation. Under this legislation, the fire marshal was required, whenever any building or property was damaged by fire, to institute an inquiry into the cause or origin of the fire, and, in that connec­tion, to ascertain whether it was kindled by design or was the result of negligence or accident. Power to summon witnesses to give information or evi­dence was conferred upon the fire marshal who also was empowered to commit for contempt for refusal to testify. The Privy Council held, on the main point before it, that the depositions were admissible against the accused, save as to answers to question to which he objected as tending to criminate him but which he was improperly com­pelled to answer. On the issue allegedly germane

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to the present case the Privy Council said only this (at p. 605):

... It was held by the whole Court [the Quebec Court of Queen's Bench, Appeal Side] (in their Lordships' opinion rightly) that the constitution of the Court of the "Fire Marshal", with the powers given to it, was within the competency of the Provincial legislature; …

This observation has been regarded as going to a s. 96 question, namely, whether the fire marshal as a provincial appointee was given powers exercis­able only by a superior or county Court Judge or powers analogous thereto: see Reference re the Adoption Act[27]. Moreover, having had the advan­tage of seeing the reasons for judgment of the various members of the Quebec Court of Queen's Bench, Appeal Side, which heard Coote's appeal from a judgment on a reserved question as to the admissibility of the depositions (by a majority of three to two it held them inadmissible), I find that they do not support the unanimous conclusion attributed to the Quebec Court by the Privy Council.

It is true that in his reasons for judgment, Mr. Justice Drummond, one of the five Quebec judges who sat on the appeal, referred to the objection that the legislation respecting inquiries by fire marshals was invalid as encroaching on federal legislative power in respect of criminal matters, and then asserted that "as to this objection all the Judges here agreed that the local Act in question gave to the fire marshals power of investigation or inquiry only and did not interfere with the author­ity of the Federal Legislature in criminal matters". However, Chief Justice Duval concluded his reasons by saying that "I make no remarks on the constitutionality of the Act . . . limited as it is in its provisions, as no doubt was expressed on the sub­ject". Mr. Justice Caron said that it was unneces­sary to decide the constitutional question and he did not propose to deal with it. Mr. Justice Badgley,

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who had reserved the question of the admissi­bility of the depositions for the opinion of the Court, concluded that the fire marshal inquiry legislation was valid provincial legislation which did not encroach on the federal criminal law power in giving authority to inquire into the cause and origin of fires. Mr. Justice Monk concerned him-self with the propriety of reserving the evidence question and did not touch the constitutional point.

Apart altogether from any issue as to whether the Privy Council correctly appreciated the views of the members of the Quebec Court of Queen's Bench on the validity of the fire marshal inquiry legislation, there is a vast difference between the enactment under discussion in the Coote case and s. 19 of the Quebec Police Act. The Coote legisla­tion had only an incidental connection with the criminal law; it was rather concerned with the introduction of a procedure for determining the cause and origin of fires, which would go to ques­tions of safety and prevention of accidents, arising through negligence or otherwise, and in that con­nection embracing also inquiry into whether a fire was deliberately set. In contradistinction to the Coote legislation, s. 19 of the Police Act has a direct and unqualified thrust into the substantive criminal law. The Commission has no other man-date than to inquire into the existence of crime, in all its ramifications, and it is not expressly limited to what is defined in the federal Criminal Code. Yet it cannot be doubted that only the federal Parliament can prescribe what is criminal in Canada for all of Canada.

Re Public Inquiries Act: re Clement arose out of a reference to the British Columbia Court of Appeal as to the validity of the provincial Public Inquiries Act and as to whether it was within the powers of the Lieutenant-Governor in Council under that Act to establish an inquiry to determine

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(1) whether intoxicating liquor had been unlawful­ly imported into the province since the passing of a federal Order-in-Council prohibiting any such importation and (2) whether sales of intoxicating liquor had been made in the province contrary to a provincial prohibition statute.

The British Columbia Court of Appeal deter-mined, easily enough, that the Public Inquiries Act was valid provincial legislation. On its face it provided (and it was common provincial legisla­tion) for inquiries into, inter alia, the good government of the province, the conduct of public busi­ness and the administration of justice. Again, there was no doubt of the power of the provincial Gov­ernment under this legislation to inquire into breaches of provincial law. What troubled the Court was whether the provincial inquiry could lawfully reach into breaches of the criminal law. That law was involved, in the view of the Court, because of the federal Order-in-Council, which was passed on December 22, 1917, at the instance of the War Committee of the Privy Council, pro­hibiting the importation of liquor into Canada until one year after the end of the war: see 51 Can. Gaz., at p. 2182. I may note here that this policy was put on a more permanent basis on a provin­cial-support level by an amendment to the Canada Temperance Act by 1919 (Can. 2nd sess.), c. 8 which provided that upon provincial instigation a vote could be taken to prohibit the importation of liquor into any province in which its sale for beverage purposes was prohibited: see Gold Seal Ltd. v. Dominion Express Co. and Attorney-Gen­eral of Alberta[28]. British Columbia, like other provinces at that time, had a prohibition statute and thus it was that the federal legislation and the earlier federal Order-in-Council were (in the words of one of the judges in this British Columbia reference) "merely supplementary to the local law and the effect has not been to displace the local law" (at p. 124 of 33 C.C.C.). This was of a piece with other instances where the federal temperance statute was construed to make allowance for valid provincial legislation: see Attorney-General of

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Ontario v. Attorney General of Canada[29].

The characterization of the federal Order-in-Council as involving criminal law may be suspect in view of the judicial history of federal temperance legislation: see Russell v. The Queen[30]; Attorney-General of Ontario v. Canada Temperance Federation[31]. However, I am prepared to assume that the British Columbia Court's decision would have been the same, that it would have sustained the reach of the inquiry whatever might have been the characterization of the federal prohibitory provisions. The basis of the judgment was reliance on the words "administration of jus­tice in the Province^" in s. 92(14) of the British North America Act and in the provincial Public Inquiries Act. The matter was dealt with by Mac­donald C.J.A. in a passage that has been heavily relied on by the Provinces in the present case. He said this (at pp. 121-2 of 33 C.C.C.):

Under its powers in respect of administration of jus­tice when crime has been committed, the Province puts the machinery of the criminal law in motion. This undoubtedly is one branch of the administration of justice, but the discovery of crime when it is merely suspected may, I think, also fall into that category. Provincial peace officers are charged with that duty amongst others. A provincial detective force might, I think, be organized under provincial laws for the very purpose for which the commissioner was appointed. Now, if I am right in thinking that investigations, extra-judicially, into the commission of crime for the purpose of discovering if and by whom committed are within the subject matters assigned to the Province under the words "administration of justice," is there anything to prevent the Province from making the inves­tigation effective by imposing on individuals an obliga­tion to give evidence under penalty for refusal. I think not. Such a power is not inconsistent, but consistent, with the jurisdiction of the Province to legislate concern­ing property and civil rights.

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No doubt to concede the power to the Province to make investigations into breaches of Dominion laws would appear at first blush to be an anomaly, and it might well be argued that the powers conferred upon the Province in respect of the administration of justice ought to be interpreted as conferring merely the duty or obligation to put the machinery of the Courts in motion, and to take the requisite steps to prosecute persons accused of crime. That narrow construction would, I think, preclude what has been generally recognised as one of the functions of government in the administration of justice, namely, the ferreting out of crime and iden­tification of criminals. There is nothing novel in com­pelling a witness to give evidence which may tend to incriminate him. That is done in the civil Courts and is the practice in one of the oldest criminal Courts of the Realm, the Coroner's Inquest. With the justice or expediency of inquiries into crime by an extra-judicial provincial commission I have not to concern myself. The power to appoint such rests somewhere. It is either with the Dominion or the Province, or with each, and hence it is idle to urge as a reason against the validity of the order-in-council that it is inimical to the rights of the subject.

I am of the opinion that the foregoing passage goes much beyond the necessity of the occasion. The fact that a Superior Court judge was appointed to conduct the inquiry did not appear to be a material consideration for the British Columbia Court of Appeal and, in my opinion, rightly so. What appears to me however to have been the focus of the inquiry was the concern with the effectiveness of the provincial prohibition statute and, hence, as in the Coote case, I would regard the concern with the unlawful importation of liquor into the province as merely incidental to the issue of effective enforcement within the province of its temperance law.

I do not think that either Batary v. Attorney-General of Saskatchewan, supra, or Faber v. The Queen, supra, go to the point which I have been considering. Both were concerned with certain pro­ceedings before coroners under provincial coroners' legislation in Saskatchewan and Quebec. In neither case was the validity of the Coroners Act per se called into question. In Batary, a section of the Coroners Act, making a person charged with a criminal offence arising out of a death a compellable

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witness at an inquest directed into the cause of the death, was held to be ultra vires the provin­cial legislature notwithstanding that the chal­lenged provision gave the person the protection of s. 5 of the Canada Evidence Act if it was invoked in respect of any question put to him which might tend to criminate him. In Faber, the question for decision was whether the Court of Queen's Bench (Crown side) had jurisdiction to issue prohibition to a coroner in respect of an inquest at which Faber had refused to testify with the result that there were a number of committals for contempt. The question of jurisdiction, whether it resided in the Superior Court or in the Court of Queen's Bench (Crown side), turned on whether the prohi­bition proceedings were in a criminal matter, within federal jurisdiction, or were subject to pro­vincial procedures. This Court held, by a majority of five to four, that jurisdiction lay with the Quebec Superior Court.

In my opinion, the fact that contempt issues arising out of statutory compellability to give evi­dence (and thus raising questions touching the Canada Evidence Act, R.S.C. 1970, c. E-10 and especially s. 5 thereof) may call for decision is peripheral to the larger question in this case, namely, whether s. 19 of the Police Act is invalid as a whole. As both Batary and Faber show, such peripheral issues may be decided without touching the larger question. I am prepared to consider all the supporting provisions in this case as to compellability and contempt, and enforcement thereof by imprisonment, as neutral provisions which could be found in valid provincial legislation as well as in valid federal legislation. The matter then is s. 19 itself and not any ancillary provisions.

In the course of argument it was contended on behalf of the Provinces that even a police officer could be invested by the Province with authority to carry on an inquiry under s. 19. Although such an officer would then be acting in other than his

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traditional capacity, the submission underlines the close relation between the ordinary functions of the police in the investigation and detection of crime and in assistance in the prosecution of crime, and the function assumed by the Police Commis­sion under the Order-in-Council herein made in pursuance of s. 19. Indeed, it appeared that it was in the functions of police officers and police forces, constituted under provincial legislation, that the Provinces found support for their contention that s. 92(14) embraced coercive investigation into crime and hence, by analogy, an investigation with coer­cive power such as that provided for under s. 19 of the Quebec Police Act. In my view, this is the critical submission in support of s. 19, and I wish to examine it in depth.

The power of a Province, or of a municipality by delegation from a Province, to establish provincial or local police forces is unquestioned, just as is the power of Provinces to establish provincial Courts (subject to the appointing power conferred by s. 96). The mere establishment of a police force, and even the endowment of the police officers with statutory powers under provincial legislation, does not, ipso facto, give them authority to exercise those powers if such exercise would take them into the field of criminal law enforcement as contrasted with the enforcement of municipal by-laws or pro­vincial penal laws. A similar situation prevails where a Province endows its Courts with authority to administer criminal law or bankruptcy law. I have already pointed out that this is simply to give them a capacity which must be fed by federal legislation. In fact, it is open to the federal Parlia­ment to invest provincial functionaries or courts with federal functions under federal legislation, regardless of whether they are endowed with capacity by provincial legislation: see In re Van­cini, supra.

What I have said as to police officers and police forces must be placed in historical context, and must take account of pre-confederation common law powers and pre-confederation legislation which survived Confederation. Section 129 of the British North America Act provided for the con­tinuation, except as otherwise provided, of all laws in force in the federating Provinces, all Courts and

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all legal commissions, powers and authorities and all officers, judicial, administrative and ministeri­al, subject however to be repealed, abolished or altered by Parliament or a provincial Legislature according to the distribution of power under the Act. It is plain, therefore, that police forces and police officers continued to exercise their pre-confederation authority, even in relation to what after Confederation were criminal law matters within exclusive federal competence, subject to those powers being taken away or altered by Parliament.

It is simply not arguable that a Province could invest one of its police officers with, for example, some fresh power to arrest for a criminal offence if no such power was conferred by the federal crimi­nal law. The Criminal Code defines a "peace officer" very broadly, and municipal or provincial police officers now exercise powers of arrest or of search, in connection with the enforcement of the criminal law, under federal legislation and, espe­cially, under the Criminal Code. If there are still some vestigial common law or pre-confederation statute law powers extant, which have not been overtaken or supplanted by federal legislation, they do not affect what I have stated; rather do they support the propositions herein.

In my opinion, the suggestion that there is some independent authority in provincial or municipal police forces, independent that is of federal legisla­tion, to enforce the criminal law, and that this independent authority is fed by s. 92(14) is simply untenable, and there is no basis for finding in the existence of provincial or municipal police forces any analogical support for the validity of the inqui­ry established under s. 19 of the Quebec Police Act. To the extent to which enforcement of the criminal law is left with provincial or municipal police forces, it is there by virtue of federal law or by the continuation of pre-confederation powers left untouched by federal law.

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We are asked to agree that a Province could authorize provincial or local police to engage in an inquiry into the criminal law and, for example, in connection therewith to require any citizen under investigation to answer inquiries on pain of liabili­ty to incarceration for contempt. Assuming that, whatever be the nature of the inquiry, a citizen may invoke s. 5 of the Canada Evidence Act, R.S.C. 1970, c. E-10 and thus protect himself in respect of criminating questions (assuming also he is a witness within s. 5), nonetheless he would be disentitled to refuse to answer questions incriminating others. The scope of the inquiry can be heedless of rules of evidence that operate under federal law applicable to criminal matters. On the submissions made by the Provinces, it is only necessary to say that the inquiry is not directed to possible prosecution for a criminal offence; and what the federal Parliament, endowed with exclu­sive power in relation to criminal law and proce­dure in criminal matters, has not done the Prov­ince may do, riding roughshod over citizens in the process. I am not in the least concerned that only those of allegedly unsavoury character have been or will be interrogated. They are as much entitled to rely on the distribution of legislative power under the British North America Act, and on the safeguards prescribed by the Parliament of Canada when crime is being investigated, as are the most unblemished of our citizens.

If the inquiry or investigation were put on foot by the Province with a view to possible prosecu­tion, is there any doubt but that it would amount to an invasion of the federal criminal law power? What we have here is an inquisitorial process, more draconian than what Parliament has pre-scribed in relation to the investigation, detection and prosecution of crime; and yet it is contended that by stopping at investigation and detection (under the inquiry) and avoiding entry or possible entry into prosecution, the Province may constitu­tionally take over this large area of the criminal law, save for the minimal restraint of s. 5 of the Canada Evidence Act. This, to me, is not only a colourable invasion but a direct invasion of exclu­sive federal competence. An administrative, quasi-judicial

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coercive investigation at large into crime has nothing to do with the "administration of justice in the Province".

Those words have never been interpreted to reach into ends which are beyond provincial au­thority, unless we are to say that an inquiry, however coercive, is an end in itself, and is in relation to "administration of justice", though no charges are involved against particular persons, no courts are involved and no consequences are involved, save as to those who refuse to cooperate in the enterprise.

It has been said time and again, both by the Privy Council when it was Canada's highest Court and by this Court, that the federal criminal law power endowed the Parliament of Canada with that authority in its widest sense. The proposition began with Attorney General of Ontario v. Hamil­ton Street Railway[32], at p. 529. In my opinion, this view of the power embraces not only the substan­tive criminal law but also "procedure in criminal matters" which is part of s. 91(27). In Reference re Validity of the Combines Investigation Act and of s. 498 of the Criminal Code[33], Duff J., as he then was, speaking for himself and for Rinfret and Smith JJ. said (at p. 418) that "the authority in relation to the criminal law and criminal proce­dure given by s. 91(27) would appear to confer upon the Dominion, not as an incidental power merely, but as an essential part of it, the power to provide for investigation into crime, actual and potential". (The emphasis is mine.) The learned judge, as Chief Justice, touched this theme again in Provincial Secretary of P.E.I. v. Egan[34], at p. 401, where he said that "the subject of criminal law entrusted to the Parliament of Canada is necessarily an expanding field by reason of the authority of the Parliament to create crimes, impose punishment for such crimes, and to deal with criminal procedure". I point out also that whereas in the grant of authority to the Provinces under s. 92(14) of the British North America Act

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"procedure in civil matters" is associated with the phrase "in those Courts", there is no such qualifi­cation in the reference to "procedure in criminal matters" in s. 91(27).

What is urged upon this Court by the Provinces represented in this case is that it should construe the federal power in relation to criminal procedure in the same way as "procedure" is dealt with in s. 92(14), that is that it should be limited only to what goes into procedure in the prosecution of offences in the courts. The corollary of this sub-mission is that any other mode of inquiry into the operation of the criminal law belongs to the Prov­inces as falling within the "administration of jus­tice in the Province" under s. 92(14). I do not think that it could be argued successfully that a Province could prescribe a different procedure (or indeed any procedure) for enforcing the criminal law than what Parliament ordains. Merely to change the tribunal of inquiry and to do "whole-sale" what, so to speak, is done under the federal Criminal Code by "retail" cannot, in my view, change the distribution of exclusive legislative au­thority in the field of criminal law and criminal procedure. We would be as unjustified in freezing our understanding of what is "criminal procedure" as of 1867 as we have held it to be unjustified to freeze the meaning of "criminal law" according to what was criminal in 1867, and this whether we refer to the substantive criminal law, to investiga­tive procedures, that may or may not be followed by prosecution, or to penalties or sanctions that may be imposed upon a conviction: see Goodyear Tire and Rubber Co. of Canada Ltd. v. The Queen[35], at p. 308. The comprehensive scope of the criminal law power under s. 91(27) is also shown by Attorney-General of British Columbia v. Smith[36].

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What is presented here under s. 19 of the Police Act is a provincial adoption of a new form of procedure for inquiring into crime, a procedure in a criminal matter, within s. 91(27), and although there is no direct attempt under s. 19 and under the implementing Order-in-Council to change the existing criminal law, a different method of exam­ining its operation is prescribed from the method laid out in the Criminal Code and in allied federal legislation. As I have already noted, Parliament could authorize a wholesale inquiry of that kind in addition to the individualized enforcement that has been traditional with us. For the Province to do it, however, is for it to provide a type of supplemen­tary administration which, in my opinion, is beyond its powers. I borrow and adapt the words of Rand J. in Johnson v. Attorney-General of Alberta[37], at p. 138 where, speaking it is true in another context, he said that "any local legislation of a supplementary nature that would tend to weaken or confuse [the] enforcement [of the criminal law] would be an interference with the exclusive power of Parliament".

It is evident from the submissions of the Prov­inces that they would read s. 92(14) as if the words in it were "administration of criminal justice as well as of civil justice". I am satisfied on such authorities as there are, as well as on the scheme of the British North America Act, that adminis­tration of criminal justice, whatever be the form that it takes, is for Parliament alone to prescribe. The sweeping nature of the inquiry power into crime and criminality, conferred by s. 19, is under-lined not only by its terms, already quoted, but as well by the terms of Order-in-Council No. 2821-72. I set them out here because they emphasize why, in my view, the federal power in relation to criminal law and procedure in criminal matters is usurped by what has been prescribed under provin­cial authority.

The relevant provisions of the Order-in-Council are as follows:

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 [TRANSLATION] Upon the recommendation of the Minister of Justice and Attorney General, IT IS HEREBY ORDERED:

THAT in the fight against organized crime, the Quebec Police Commission shall make an inquiry into the activities of any organizations or systems, including their ramifications and the persons involved, where such organizations or systems operate in illegal gaming and betting, usurious loans practices (shylocking), extorsion, illegal trafficking in drugs and narcotics, counterfeiting, commercial fraud, fraudulent bankruptcies, arson, fraudulent stock manipulation or promotion, fraudulent dealings of corporations, illegal pressure on businessmen or officers or members of associations or corporations to control them or to extort from them money or property, theft of bonds, theft of stamps and precious metals, theft and dismantling of automobiles, sale of stolen goods, prostitution, illegal stills and distribution of adulterated liquor, illegal consumers exploitation, blackmail, intimi­dation and corruption, and illegal or fraudulent obten­tion of any permits issued by or decisions made by any public body.

THAT the Quebec Police Commission shall submit to the Attorney General, on or before December 31, 1975, "the written report setting forth the findings" which it will have made, and that the Commission shall be authorized to submit, in its discretion, to the Attorney General, written reports whenever the Commission deems it appropriate.

The foregoing terms point to another consider­ation that to me is decidedly relevant. Public com­missions of inquiry, launched by a particular level of Government, are normally designed to bring to light facts and issues upon which the particular Government can propose curative or protective legislation to the Legislature to which it is accountable, if the report of the inquiry justifies the introduction of such legislation. That would not be possible here when it is conceded that only Parliament can enact criminal law and prescribe criminal procedure, and when it is clear from the terms of the Order-in-Council that they point to , issues that are, substantively, beyond provincial competence. Moreover, if governmental powers are to be exercised coercively against individuals, the latter are entitled to have at least such protection

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as is provided by the distribution of legislative power under the British North America Act, in the sense that the Act should be construed as far as possible to preclude both levels of governmental authority from being entitled to converge on an individual for the same purpose and possibly even at the same time.

The convenience of having a local inquiry, if there is a serious problem of crime, whether organ­ized or not, in the Province can easily be met by federal intervention to direct it. And if there are extra-provincial ramifications or, indeed, other Provinces or areas therein where there are such problems, it is not difficult to enlarge the terms of reference or to prescribe similar inquiries to be undertaken by other tribunals.

For the reasons I have given, I would allow the appeal and declare that s. 19 of the Police Act is ultra vires the Legislature of Quebec, that Order-in-Council No. 2821-72 falls with it and that the appellants are entitled to the relief sought by them. Since the issue of constitutional validity was posed directly to this Court under a question formulated by Beetz J., there is no need to remit the case to a provincial court to make the declaration of invalid­ity and to give the consequential relief sought by the appellants.

Martland, Judson and Ritchie JJ. concurred with reasons delivered by

PIGEON J.—Di Iorio and Fontaine appeal from the judgments of the Court of Appeal of the Province of Quebec affirming the judgments of the Court of Queen's Bench, Crown side, dismissing their petitions for writs of habeas corpus with certiorari in aid. The appellants had been called as witnesses to testify before the Quebec Police Com­mission at an enquiry into organized criminal activities. This enquiry was requested by the Lieu­tenant-Governor in Council pursuant to s. 19 of the Police Act (S.Q. 1968, c. 17 as amended). The

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appellants having refused to testify were found guilty of contempt by the commissioners holding the enquiry namely, the mis en cause Rhéal Brunet, Marc Cordeau and Roméo Courtemanche. They were both sentenced to one year in jail, this being the maximum provided under art. 51 of the Code of Civil Procedure. The principal ground on which they attack the validity of their committal is a challenge of the Order-in-Council and of s. 19 of the Police Act on. constitutional grounds. In fact, notice of such challenge was at the outset given to the Attorney general of Canada and to the Attor­ney general of Quebec.

In this Court, notice of the constitutional ques­tion was given to all attorneys general. The Attor­ney general of Canada has intervened to support the challenge against s. 19. The attorneys general of Ontario, New Brunswick, British Columbia and Alberta have intervened to support the submissions of the Attorney general of Quebec in favour of the validity of the impugned enactment. Although several provisions other than s. 19 were attacked by the appellants, these are only accessory enact­ments which are really attacked only as related to s. 19. Consequently, it seems unnecessary to con­sider those subordinate provisions. Section 19 as amended reads:

19. The Commission shall make an inquiry, whenever requested to do so by the Lieutenant-Governor in Coun­cil, respecting any aspect of crime which he indicates.

The Commission shall also make an inquiry into the activities of an organization or system, its ramifications and the persons involved, to the extent prescribed by the Lieutenant-Governor in Council, whenever he has reason to believe that in the fight against organized crime or terrorism and subversion, it is in the public interest to order such an inquiry to be held.

The conclusions of the Order-in-Council requesting the Commission to make the enquiry are in the following terms:

[TRANSLATION] Upon the recommendation of the Minister of Justice and Attorney General, IT IS HEREBY ORDERED:

THAT in the fight against organized crime, the Quebec Police Commission shall make an inquiry into the activities of any organisations or systems, including

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their ramifications and the persons involved, where such organisations or systems operate in illegal gaming and betting, usurious loans practices (shylocking), extorsion, illegal trafficking in drugs and narcotics, counterfeiting, commercial fraud, fraudulent bankruptcies, arson, fraudulent stock manipulation or promotion, fraudulent dealings of corporations, illegal pressure on businessmen or officers or members of associations or corporations to control them or to extort from them money or property, theft of bonds, theft of stamps and precious metals, theft and dismantling of automobiles, sale of stolen goods, prostitution, illegal stills and distribution of adulterated liquor, illegal consumers exploitation, blackmail, intimi­dation and corruption, and illegal or fraudulent obten­tion of any permits issued by or decisions made by any public body.

THAT the Quebec Police Commission shall submit to the Attorney General, on or before December 31, 1975, "the written report setting forth the findings" which it will have made, and that the Commission shall be authorized to submit, in its discretion, to the Attorney General, written reports whenever the Commission deems it appropriate.

The constitutional basis of appellants' conten­tions is that, by s. 91 of the B.N.A. Act it is declared "that notwithstanding anything in this Act, the exclusive legislative authority of the Par­liament of Canada extends to ..."

27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

The constitutional provisions relied on by the Attorney general for Quebec and for the interven­ing provinces are heads 14 and 15 of s. 92:

14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organiza­tion of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.

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It is noteworthy that the first Canadian consti­tutional case (Reg. v. Coote[38]) heard by the Privy Council after the enactment of the B.N.A. Act (this was before the establishment of this Court), had reference to a Quebec statute concerning public enquiries, The Fire Marshal's Act of 1868 (31 Vict., c. 32). Coote had been convicted of arson. Depositions taken of him at an enquiry before a fire marshal had been admitted in evi­dence at his trial although objected to. On appeal, a new trial had been ordered on the basis that although The Fire Marshal's Act was constitution-ally valid, the deposition had been improperly admitted in evidence because the accused had not been cautioned that whatever he said might be given in evidence against him. The Privy Council restored the conviction holding that depositions so taken are admissible evidence on a subsequent trial of the witness except those to which objection has been made by the witness as tending to criminate him. The Privy Council explicitly approved (at p. 605) the opinion expressed by the Court of Appeal "that the constitution of the Court of the "Fire Marshal" with the powers given to it was within the competency of the provincial legislature". Sec­tions 3 and 4 of the statute under consideration in that case were in the following terms:

3. Whenever any fire has occurred in such cities, whereby any house or other building, or any property whatever therein, has been or is exposed to be wholly or in part consumed or injured by such fire, it shall be the duty of the fire marshal to institute an enquiry into the cause or origin of such fire, and whether it was kindled by design or was the result of negligence or accident, and in so far as the same is practicable, either in person or by some competent person employed by him for that purpose.

4. The fire marshal shall ex officio possess all the power, authority and jurisdiction of any judge of ses­sions, recorder or coroner for all purposes connected with the said enquiry, and shall have power to summon before him all persons whom he deems capable of giving information or evidence touching or concerning such fire.

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In 1919, the British Columbia Court of Appeal had to consider the validity of a provincial Order-in-Council passed under The Public Inquiries Act (R.S.B.C. 1911, c. 110) directing the enquiry into the importation of liquor prohibited by an order of the Governor general in council. The Court was unanimous in holding the Act and the Order-in-Council valid (In Re Public Inquiries Act: In re Clement[39]. Macdonald C.J.A. said (at pp. 238-240):

... The inquiry in this respect is not I think one connected with good government, or the conduct of public business, and must be supported, if at all, as being connected with the administration of justice in the Province, as that phrase is used in No. 14 of s. 92 of the B.N.A. Act. The making of the criminal laws of Canada is assigned exclusively to the Dominion, so is the regula­tion of procedure in criminal matters. "Criminal mat­ters" are, in my opinion, proceedings in the criminal Courts, and "procedure" means the steps to be taken in prosecutions or other criminal proceedings in such Courts. The commission in question here is extra-judi­cial. The commissioner is not a Court, and his proceedings are not proceedings in a criminal matter, or in any matter in the legal sense of the term. Provincial legisla­tion authorizing his appointment is therefore not in conflict with the exclusive legislative authority assigned to the Dominion Parliament by s. 91, No. 27 of the B.N.A. Act... .

No doubt to concede the power to the Province to make investigations into breaches of Dominion laws would appear at first blush to be an anomaly, and it might well be argued that the powers conferred upon the Province in respect of the administration of justice ought to be interpreted as conferring merely the duty or obligation to put the machinery of the Courts in motion, and to take the requisite steps to prosecute persons accused of crime. That narrow construction would, I think, preclude what has been generally recognised as one of the functions of government in the administration of justice, namely, the ferreting out of crime and iden­tification of criminals. There is nothing novel in com­pelling a witness to give evidence which may tend to incriminate him.

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In 1938, in Reference re the Adoption Act[40], Duff C.J. stating the reasons for the answers given by all the judges who participated in the decision, said (at p. 403):

The responsibility of the state for the care of people in distress (including neglected children and deserted wives) and for the proper education and training of youth, rests upon the province; .. .

Moreover, while, as subject matter of legislation, the criminal law is entrusted to the Dominion Parliament, responsibility for the administration of justice and, broadly speaking, for the policing of the country, the execution of the criminal law, the suppression of crime and disorder, has from the beginning of Confederation been recognized as the responsibility of the provinces and has been discharged at great cost to the people; so also, the provinces, sometimes acting directly, sometimes through the municipalities, have assumed responsibility for controlling social conditions having a tendency to encourage vice and crime.

Ten years ago, in Batary v. Attorney General for Saskatchewan[41] this Court had to consider the constitutional validity of a provision in the Coro­ners’ Act of Saskatchewan purporting to compel a person charged with murder to testify at an enqui­ry over the death of his alleged victim. Although the statute provided that such person would, if he objected to answer, be entitled to the protection afforded by s. 5 of the Canada Evidence Act, this Court held with a single dissent that the legislation was ineffective in such situation. The conclusions expressed by Cartwright J. (as he then was) are as follows (at p. 478):

I think the conclusion inescapable that by enacting s. 15 in its present form the legislature intended to change the law and to render a person charged with murder compellable to give evidence at the inquest on the body of his alleged victim. Such legislation trenches upon the rule expressed in the maxim nemo tenetur seipsum accusare which has been described (by Coleridge J. in R. v. Scott, 169 E.R. 909) as "a maxim of our law as settled, as important and as wise as almost any other in it." This rule has long formed part of the criminal law of England and of this country. With great respect for the contrary view expressed in the Court of Appeal, I am of

[Page 188]

opinion that any legislation, purporting to make the change in the law referred to in the first sentence of this paragraph or to abrogate or alter the existing rules which protect a person charged with crime from being compelled to testify against himself, is legislation in relation to the Criminal Law including the Procedure in Criminal Matters and so within the exclusive legislative authority of the Parliament of Canada under head 27 of s. 91 of the British North America Act.

In 1968, the courts of British Columbia were called upon to decide whether the principle estab­lished in Batary is applicable to a person who may be, but has not been, charged with an offence under the Criminal Code. The reluctant witness was the driver of an automobile which collided with pedestrians. A child was killed in the mishap. At the coroner's inquest, it was contended that the unfortunate driver was not compellable because he was a person who might be charged with the commission of an offence related to the child's death. A writ of prohibition was granted by Munroe J. (R. v. Coroner of Langley[42]). On appeal, the writ was quashed it being held that a coroner’s court is not a criminal court in the sense of a court administering "the Criminal Law" or dealing with "Criminal Matters" within the mean­ing of s. 91 (27) of the B.N.A. Act (Reg. v. McDonald[43] )

Very recently, a similar question came before this Court in a case where the person who refused to testify at a coroner’s inquest held under the Coroners’ Act of Quebec was not a person charged with murder of the deceased (Faber v. The Queen[44]). The appeal from the judgment of the Court of Appeal[45] affirming the refusal of a writ of prohibition was dismissed. In the Court of Appeal in the present case, Montgomery J.A. noted that it is only after our judgment in Faber was rendered that the judgments herein were pro­nounced, saying:

[Page 189]

At the hearing before this court, it was pointed out that our court had recently, in the case of Faber v. R., 1969 Q.B. 1017, confirmed a decision of a judge of the Court of Queen's Bench (Crown Side) holding that only the Superior Court had jurisdiction to restrain by writ of prohibition proceedings before a coroner. This decision had been appealed to the Supreme Court and was then pending. It was decided that it would be desirable to await the decision of the Supreme Court, which was rendered on 26th March 1975. By a majority of 5 to 4, the Supreme Court confirmed the decision of this court.

While the question is obviously not free from difficul­ty, in view of the dissents in the Supreme Court, the fact remains that the unanimous decision of five judges of this court, holding that only the Superior Court has a right of supervision and control over a coroner conduct­ing an inquest under the Coroners Act (115-16 Eliz. II c. 19), has been confirmed by the Supreme Court. The remaining question is therefore whether there is a dis­tinction to be made between an inquest under the Coroners Act and an inquiry under the Police Act. It has not been suggested to us that, for the present purposes, there is any such distinction, and I see no reason to make one.

I can see no reason for disagreeing with this conclusion. It is clear that in Faber, as in Coote, the enquiry was essentially directed to the purpose of finding who was the author of a crime that had been committed. Before resuming the inquest in Faber, the coroner had earlier stated the death to be, in his opinion, due to a crime. His open verdict dated January 8, 1969, read:

[TRANSLATION] That, in my opinion, a crime was com­mitted, that the facts of that crime are those described above and that an unknown person or unknown persons should be held responsible. Recommendation to the Police to investigate further and to file a report at the proper time.

It is at the resumption of the inquest, some two months later, that Faber was for the last time, committed for contempt in refusing to testify. Thereupon he applied for a writ of prohibition to the Court of Queen's Bench, Crown side. In the reasons for the majority of this Court upholding the denial of the writ, the following pronouncement by Bull J.A. in McDonald (at p. 305) was quoted and adopted:

[Page 190]

I therefore conclude that the very nature of the inquiry held by the Coroner in Canada, which is not a trial and at which there is no party or person accused and the function of which is to investigate many other matters than to find that murder or manslaughter has been committed, is such that this Court cannot fairly be said to be a 'Court of Criminal Jurisdiction' whose proce­dures before such a verdict, if any, are with respect to 'Criminal Matters' or 'criminal law' in order to come under the exclusive authority of Parliament.

Similarly, the following opinion expressed by McFarlane J.A. (at p. 308) following a quotation from Wolfe v. Robinson[46] was also quoted and endorsed:

To this apt description I would add that that at a Coroner's inquest, under the Act, there is no lis, no accused and no charge. The statute does not purport to confer jurisdiction to try any person accused of any wrongful act, to acquit, convict or punish. Where the jury's verdict is that the deceased came to his death by murder or manslaughter their inquisition shall certify the persons (if any) guilty of the murder or man-slaughter or of being accessories before the fact of such murder (s. 15). This is an incidental or ancillary func­tion and does not of itself set the criminal law in motion. Coroners are also required to hold inquests in many cases where there is no suggestion or suspicion of wrong-doing. It may be said fairly that one of the salutary results of inquests is to allay suspicions and remove doubts.

In my opinion the legislation in its pith and substance is enacted in relation to the administration of justice in the Province, thus being within the exclusive legislative jurisdiction of the Province under head 14 of s. 92.

It must be observed that in Faber, the only question considered in the Court of Appeal and in this Court was the jurisdiction of the Court of Queen’s Bench, Crown side. The conclusion affirmed by the majority in this Court was that the coroner’s inquest is not "a procedure in a criminal matter". This was said in a case where, after an open verdict of death due to a crime by a person or persons unknown, the coroner resumed the inquest for the sole purpose of ascertaining who might be

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charged with such crime. This could not be con­sidered incidental only, the only reason for the continuation of the enquiry was the gathering of evidence which would make it possible for the coroner to render a further verdict alleging that a named person had committed murder or man-slaughter, whereupon it would become the coron­er's duty, under s. 462 of the Criminal Code, to direct that such person be taken into custody or enter into a recognizance to appear before a jus­tice. If an inquest carried out with a view to such a consequence can be said not to be a "procedure in a criminal matter", it appears to me that the same must a fortiori be said of an enquiry in conclusion of which no more can be done than the making of a report to the provincial attorney general who may then, either have charges laid or take the exceptional step of laying a preferred indictment.

That in many cases a coroner's inquest is not concerned with any criminal aspect may be of some importance in considering the general character of the office of coroner and of the procedure at inquests. It cannot, however, be a material consideration in appreciating the nature of the conclusion reached in Faber. What was there sub­mitted by the appellant, as by the present appel­lants, was essentially that the matter was one coming within the description of "procedure in a criminal matter" because it was an enquiry into allegedly criminal activities. If it must be said that such an enquiry prior to any charge being laid under the Criminal Code comes within the description of "Administration of Justice in the Province", not of "Procedure in a Criminal Mat-ter", I cannot appreciate how one may take a different view where the object of the enquiry, instead of being the gathering of information suffi­cient to lay a charge for criminally causing the death of a person, is the gathering of information identifying persons engaged in organized crime and describing their activities.

Thus, although the constitutional question was not raised in Faber, the decision rendered on

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forensic jurisdiction is equally conclusive on the constitutional issue because the division of jurisdiction between the Court of Queen's Bench, Crown side, and the Superior Court of the Prov­ince of Quebec follows the constitutional division of authority between "Criminal Law and Proce­dure in Criminal Matters" and all other matters. It is now firmly established that extraordinary remedies by habeas corpus, certiorari and prohibi­tion are to be classified from every jurisdictional point of view in this same way by reference to the matter to which they relate (Minister of National Revenue v. Lafleur[47]; In re Storgoff[48]).

In my view, the decision in Faber is conclusive against appellants’ contention that the matter is "criminal" because the enquiry was concerned with criminal activities. It is obvious that, in s. 91(27) B.N.A. Act, the scope of "Criminal Law" and "Procedure in Criminal Matters" is narrowed by the allocation to the provinces of jurisdiction over the "Administration of Justice" in all matters civil and criminal, which has consistently been held to include the detection of criminal activities. The judgment in Batary shows that once a charge is laid under the Criminal Code an accused may be said to be subject to criminal proceedings, but Faber and the other cases cited show that a person who is merely exposed to a charge is not in the same situation. The conclusion reached in Faber cannot be viewed as proceeding on the basis that the detection of crime was not the principal object of the coroner's inquest. The fact is that this was the sole object of the inquest at the particular time when the proceedings were initiated.

Appellants contended that if they were com­pelled to testify at the enquiry, they would not have the benefit of the protection contemplated in the Canada Evidence Act (R.S.C. c. E-10) because s. 2 under the heading "PART I, Application", reads:

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2. This Part applies to all criminal proceedings, and all civil proceedings and other matters whatever respect­ing which the Parliament of Canada has jurisdiction in this behalf.

Little need be said against this submission beyond quoting the section granting the protection, namely, s. 5:

5. (1) No witness shall be excused from answering any question upon the ground that the answer to such question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.

(2) Where with respect to any question a witness objects to answer upon the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering such ques­tion, then although the witness is by reason of this Act, or by reason of such provincial Act, compelled to answer, the answer so given shall not be used or receiv­able in evidence against him in any criminal trial, or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of such evidence.

It would be absurd to suppose that when Parlia­ment, in subs. 2, made reference to the "Act of any provincial legislature", it intended that those words be devoid of any application. They can be given full meaning without doing violence to the wording of s. 2; it is only necessary to construe it as meaning that the application of Part I is intended to control the admissibility of evidence only in matters of federal jurisdiction.

Furthermore, it should be noted that the refer­ence to provincial legislation in s. 5 was introduced in 1901 that is after s. 2 which dates from 1893. If there was any conflict, s. 5 would therefore govern. However, a look at the legislation as originally enacted shows that the intention was completely unequivocal. Section 5 as re-enacted in 1898 (61 Vict., c. 53) read:

5. No witness shall be excused from answering any question upon the ground that the answer to such ques­tion may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the

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Crown or of any person; provided, however, that if with respect to any question the witness objects to answer upon the ground that his answer may tend to criminate him or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this section the witness would therefore have been excused from answering such ques­tion, then, although the witness shall be compelled to answer yet the answer so given shall not be used or receivable in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place other than a prosecution for perjury in giving such evidence.

The provision making this rule applicable to the case where a witness was compelled to answer by virtue of provincial legislation was originally enacted as follows by c. 36 of the statutes of 1901:

1. Section 5 of The Canada Evidence Act, 1893, as that section is enacted by chapter 53 of the statutes of 1898, is hereby amended by adding thereto the following subsection:

2. The proviso to subsection 1 of this section shall in like manner apply to the answer of a witness to any question which pursuant to an enactment of the legisla­ture of a province such witness is compelled to answer after having objected so to do upon any ground men­tioned in the said subsection, and which, but for that enactment, he would upon such ground have been excused from answering.

The appellants also submitted that the matter was "criminal" because they were sentenced to a year in jail. On this point, it should be noted first that provincial legislatures are empowered to inflict punishment by fine or imprisonment for violation of provincial laws, Such punishment is unrestricted and is not "criminal" in the constitu­tional sense (Canadian Pacific Wine Co. v. Tuley[49]). In the present case, the sentence was explicitly based on provincial enactments, namely: the Order-in-Council directing the inquiry, the Police Act (Statutes of Quebec 1968, c. 17), the Public Inquiry Commission Act (R.S.Q. 1964, c. 11), and the Code of Civil Procedure, arts. 49-54. It is immaterial that there are provisions in the Criminal Code respecting criminal contempt of court. Even if these provisions were susceptible of

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application, it is clear in the present case that they have not been applied. The sentences passed against the appellants are based exclusively on enactments of the provincial legislature and they cannot possibly be supported by reference to Criminal Code provisions because the tribunal that passed those sentences does not have jurisdic­tion under the Criminal Code.

Thus, the situation is completely unlike that which obtained in Re Poje[50]. In that case, civil proceedings for an injunction and other relief had been settled and the plaintiff had agreed to aban­don its application for contempt by violation of the injunction. It was the Chief Justice of the Supreme Court of British Columbia who, being a judge of a superior court of general jurisdiction civil and criminal, decided to enquire into the contempt and to punish the guilty parties. Under those circum­stances, this Court held that those proceedings were to be considered as proceedings for a criminal contempt and as purely punitive. In the present case, the proceedings before the Police Commis­sion were not completed but continuing when the appellants were sentenced and the appellants' com­mitment was coercive not punitive. It was ordered under art. 51 of the Code of Civil Procedure which reads:

51. Except where otherwise provided, anyone who is guilty of contempt of court is liable to a fine not exceeding five thousand dollars or to imprisonment for a period not exceeding one year.

Imprisonment for refusal to obey any process or order may be repeatedly inflicted until the person condemned obeys.

Although this is not explicitly stated in the Code, it appears to me that the principle enunciated by Vaughan Williams J. in Re Armstrong[51], (cited in Poje, at p. 518) would be applicable and the imprisonment would determine ex debito justitiae as soon as the person committed yielded obedience to the order of the tribunal, just as it could be

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inflicted again and again if the contempt was persisted in.

This does not mean that the appellants would be without redress if the legislation was unconstitu­tional as they contend, but, because they were committed under provincial legislation, such pro­vincial legislation, even when it deals with the infliction of penalties by fine or imprisonment, is not "criminal" in the constitutional sense nor in the sense in which the jurisdiction of courts is defined in the Criminal Code. As is established by the judgment in Canadian Pacific Wine Co. v. Tuley, the procedure in respect of the infliction of such penalties falls within the scope of "Procedure in Civil Matters" before provincial courts that is to say, within provincial jurisdiction. Assuming the provincial legislation was constitutionally invalid because it really dealt with a criminal matter, it would nevertheless be for the provincial court of civil jurisdiction to declare it invalid as was held in Birks v. City of Montreal[52] and Switzman v. Elbling[53]. A provincial statute can never be a criminal law in the constitutional sense. If, in fact, it deals with criminal law, it is totally void and is no law at all. Therefore, the appellants are not restrained of their liberty for "some criminal or supposed criminal matter" and their remedy by habeas corpus is before the Superior Court of the Province of Quebec under art. 851 of the Code of Civil Procedure:

851. Any person who is confined or otherwise restrained of his liberty except under an order in civil matters granted by a court or a judge having jurisdic­tion, or for some criminal or supposed criminal matter, or any other person on his behalf, may apply to a judge of the Superior Court to obtain a writ of habeas corpus ordering the person under whose custody he is detained to bring him forthwith before a judge of the court and to show the cause of his detention, so that it may be decided whether such detention is justified.

The demand is made by motion supported by an affidavit affirming the truth of the facts on which it is based.

I would dismiss the appeal.

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Martland, Judson, Ritchie and Spence JJ. con­curred with reasons delivered by

DICKSON J.—

I

This appeal, in my opinion, must be dismissed, essentially for two reasons. First, I cannot sub-scribe to the view that administration of criminal justice is for Parliament alone to prescribe. Section 92(14) of the British North America Act, 1867 gives the provinces power over "Administration of Justice within the Province." To confine the mean­ing of "Justice" to civil justice alone is to give to s. 92(14) a strained and truncated effect at war with the plain words of the section and with what would appear to have been the clear intent of the Fathers of Confederation. Secondly, as to the contempt power, from earliest times coroners inquiring into deaths occurring from other than natural causes, fire marshals inquiring into mysterious fires and countless commissioners holding public inquiries pursuant to federal or provincial Public Inquiries Acts have had power to summon witnesses, to require them to give evidence on oath and to punish them for contempt for refusal to be sworn. The Quebec Inquiry Commission into Organized Crime has the same powers, no more and no less. There is nothing in the record to sustain the view that in the exercise of those powers the Inquiry Commission has acted in any way differently from coroners, fire marshals or commissioners holding public inquiries in the past.

This case arises out of the Quebec Inquiry into Organized Crime established in 1972 pursuant to the Police Act, S.Q. 1968, c. 17. Section 19 of that Act requires the Quebec Police Commission to make an inquiry, whenever requested to do so by the Lieutenant-Governor in Council, respecting any aspect of crime. The section also makes provi­sion for an inquiry into the activities of an organi­zation or system, its ramifications and the persons involved, to the extent prescribed, whenever there is reason to believe that in the fight against organized

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crime or terrorism and subversion it is in the public interest to order such an inquiry.

The Inquiry was established by Order in Coun­cil No. 2821/72, dated September 27, 1972, the relevant portions of which read:

[TRANSLATION] Upon the recommendation of the Minister of Justice and Attorney General, IT IS HEREBY ORDERED:

THAT in the fight against organized crime, the Quebec Police Commission shall make an inquiry into the activities of any organizations or systems, including their ramifications and the persons involved, where such organizations or systems operate in illegal gaming and betting, usurious loans practices (shylocking), extortion, illegal trafficking in drugs and narcotics, counterfeiting, commercial fraud, fraudulent bankruptcies, arson, fraudulent stock manipulation or promotion, fraudulent dealings of corporations, illegal pressure on businessmen or officers or members of associations or corporations to control them or to extort from them money or property, theft of bonds, theft of stamps and precious metals, theft and dismantling of automobiles, sale of stolen goods, prostitution, illegal stills and distribution of adulterated liquor, illegal consumers exploitation, blackmail, intimi­dation and corruption, and illegal or fraudulent obten­tion of any permits issued by or decisions made by any public body.

THAT the Quebec Police Commission shall submit to the Attorney General, on or before December 31, 1975, "the written report setting forth the findings" which it will have made, and that the Commission shall be authorized to submit, in its discretion, to the Attorney General, written reports whenever the Commission deems it appropriate.

The immediate question is whether s. 19 of the Police Act and the Order in Council are beyond the constitutional competence of the Province of Quebec to enact. At issue also is a question of more profound implication, namely, whether the conduct of inquiries, unconnected with specific criminal proceedings, into the state of public order within a province is beyond the competence of provincial authority.

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In each province, the Legislature may "exclu­sively" make laws in relation to the "Administra­tion of Justice in the Province." Section 92(14) of the British North America Act, 1867, in part so provides. This plenary power is plainly very wide, but subtracted therefrom, by s. 91(27), in favour of federal authority, is "The Criminal Law, except the Constitution of the Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters".

The scheme of the Act under ss. 91(27) and 92(14) contemplates that jurisdiction over the Administration of Justice in a Province will remain with the provinces; the provinces are invested with a plenitude of powers in this area but subject to the reservation of criminal law and procedure as an exception to the general principle.

Establishment of provincial superior, district or county courts is a co-operative matter between federal and provincial authority. Section 92(14), which gives the provinces exclusive legislative power over "The Administration of Justice in the Province", continues "including the Constitution, Maintenance and Organization of Provincial Courts, both of civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts." Section 96 provides for the appointment by the Governor General of the Judges of the Superior, District and County Courts in each Province. Thus procedure in criminal matters rests with the federal authority whereas, generally speaking, procedure in civil matters in provincial courts, as well as the constitution, maintenance and organization of these courts, falls under pro­vincial jurisdiction.

The question in the present case is whether the words "The Administration of Justice in the Prov­ince" are to be given a fair, large and liberal construction or, whether by reason of the abstrac­tion of criminal law and criminal procedure, they must receive such attenuated interpretation as would confine "administration of justice" to noth­ing more than "administration of civil justice". In my opinion, Canadian legislative history, as well as the development of legal institutions within the Provinces since Confederation, favour the broader

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construction as do, by and large, the authorities, admittedly few in number, which touch upon the subject under consideration.

II

Since Confederation, the provincial departments of the Attorney General have in practice "adminis­tered justice" in the broadest sense, at great expense to the taxpayers, and irrespective of whether the laws being administered fell legisla­tively within the purview of provincial legislatures or the federal Parliament. This is reflected in the provision of police services and other enforcement agencies responsible to the provincial Attorneys General for the investigation, detection and control of crime within the respective provinces and in the maintenance of staffs for the prosecution of all types of infractions whether within the purview of provincial legislatures or the federal Parliament. In this way the provinces have perpetuated since Confederation the comprehensive powers in the administration of justice which they enjoyed and exercised in pre-Confederation times and which the framers of the B.N.A. Act would seem to have intended them to continue to have. Explaining the British North America Bill in the British Parlia­ment, the Earl of Carnarvon stated on February 19, 1867:

To the Central Parliament will also be assigned the enactment of criminal law. The administration of it indeed is vested in the local authorities; but the power of general legislation is very properly reserved for the Central Parliament.

It is a well-recognized rule of construction that if words in a statute are fairly susceptible of two constructions of which one will result in the statute being intra vires and the other will have the con­trary result the former is to be adopted: McKay et al. v. The Queen[54], at p. 804. We should not lightly decide that enabling legislation is beyond the constitutional competence of the enacting body.

The fight against organized crime has been a responsibility of the law enforcement agencies of the Province of Quebec. Although the tentacles of organized crime reach far beyond provincial or

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even national boundaries, the Inquiry is bona fide directed against acts done within the Province of Quebec where escalating levels of crime and vio­lence have taken an increasing toll of lives and property.

The Inquiry by its terms is directed into the activities of organizations and systems and to the ramifications of those organizations and systems and the persons involved, to the extent that those organizations or systems operate in areas notori­ously inviting to organized crime, such as illegal gambling, extortion, shylocking, drug traffic, pros­titution and corruption.

The Inquiry does not act as a criminal court or exercise criminal jurisdiction. The conduct of the Inquiry is not part of a criminal prosecution under the Criminal Code nor is it an investigation into a particular crime or transaction which later might be the subject of a criminal charge. We are not here concerned with a criminal trial, structured as a dispute between two sides, the Crown and the accused. The function of the Inquiry is merely to investigate and report; no person is accused; those who appear do so as witnesses; there is no lis; there is no attempt to alter criminal procedure. The proceedings of the Commission are not criminal proceedings in the sense that punishment is their aim. The legislation under attack establishes an inquiry into the nature and prevalence of certain types of illegal conduct within the Province of Quebec but does not seek to create new crimes or to alter old ones.

III

There is nothing new in a province setting up a body to enquire into matters connected with the public business, with the power of summoning witnesses and compelling those witnesses to give evidence on oath and to produce such documents as might be requisite. In the Statutes of the Prov­ince of Canada (1846), 9 Viet., c. 38 one finds just such legislation. The striking similarity between

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that Act and the legislation by which the Province of Quebec established the Inquiry into Organized Crime warrants recital of the 1846 Act:

Whereas it frequently becomes necessary for the Executive Government to institute inquiries on certain matters connected with the good government of this Province; And whereas the power of procuring evidence under oath in such cases would greatly tend to the public advantage as well as to afford protection to Her Majesty's subjects from false and malicious testimony or representations: Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and of the Legislative Assembly of the Province of Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of the United Kingdom of Great Britain and Ireland, and intituled, An Act to re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada, and it is hereby enacted by the authority of the same, That whenever the Gover­nor, Lieutenant Governor or person administering the Government of this Province, acting by and with the advice of the Executive Council thereof, shall cause injury to be made into and concerning any matter connected with the good government of this Province, or the conduct of any part of the public business thereof, or the administration of justice therein, and such inquiry shall not be regulated by any special Act, it shall be lawful for the Governor, Lieutenant Governor, or person administering the Government as aforesaid, by the Commission to confer upon the Commissioners or per-sons by whom such inquiry is to be conducted, the power of summoning before them any party or witnesses, and of requiring them to give evidence on oath, orally or in writing, (or on solemn affirmation if they be parties entitled to affirm in civil matters), and to produce such documents and things, as such Commissioners shall deem requisite to the full investigation of the matters into which they are appointed to examine, and the Commissioner shall then have the same power to enforce the attendance of such witnesses and to compel them to give evidence, as is vested in any Court of Law in civil cases; And any wilfully false statement made by any such witness on oath or solemn affirmation, shall be a misdemeanor punishable in the same manner as wilful and corrupt perjury: Provided always, that no such party or witness shall be compelled to answer any question, by his answer to which he might render himself liable to a criminal prosecution. (Emphasis added.)

It will be noted (1) that the Inquiry for which the 1846 Act provides is directed to "any matter

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connected with the good government of this prov­ince or the conduct of any part of the public business thereof or the administration of justice therein." At that epoch, the distribution of legisla­tive powers was not an issue, but the use of the phrase "administration of justice" is significant as obviously embracing much more than mere estab­lishment of, or regulation of proceedings in, the Courts. (2) The concluding sentence of the Act allays a concern expressed in the present case, that a compelled answer might render the witness liable to criminal prosecution. I shall advert to this later. I wish at the moment only to emphasize that many early statutes of Canada dealt with Administration of Justice, in connection with both civil and crimi­nal matters. Reference to some of these will be found in the judgment of the Ontario Court of Appeal in R. v. Pelletier[55], at p. 684: (1843), 7 Vict., c. 16; (1846), 9 Vict., c. 29; (1853), 16 Vict., c. 176; (1857), 20 Vict., c. 60; (1860), 23 Vict., c. 57.

An Act respecting Inquiries concerning Public Matters and Official Notices, Consolidated Stat­utes of Canada, 1859, 22 Vict., c. 13, a pre-Confederation statute, empowered the Governor in Council to make inquiries concerning "any matter connected with the good government of this Prov­ince, or the conduct of any part of the public business thereof, or the administration of justice therein". The legislative history of The Inquiries Act of Canada indicates that the Governor Gener­al in Council following Confederation continued to have the power to cause inquiries to be made, but no longer the power to order inquiries into matters connected with the administration of justice. During the year following Confederation, an Act respecting Inquiries concerning Public Matters, S.C. 1868, 31 Vict., c. 38, was enacted which empowered the Governor in Council to cause inquiry to be made concerning "any matters con­nected with the good government of Canada, or the conduct of any part of the Public business thereof', the words "or the administration of jus­tice therein" appearing in the earlier acts having been dropped. The same limited phraseology is to

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be found in the federal Inquiries Acts of 1886, 1906, 1927, 1952 and in the present Act, R.S.C. 1970, c. I-13.

Before Confederation, the Provinces exercised untrammeled powers in respect of the Administra­tion of Justice, both civil and criminal. The preamble to the Quebec Act 1774 refers to Ordi­nances "relative to Civil Government and Administration of Justice in the said Province." That Act provided also that the criminal law of England, of course then uncodified, would be observed as law in the Province of Quebec. Follow­ing Confederation, criminal law and criminal procedure fell under federal power but "justice" continued to mean "criminal justice" as well as "civil justice."

Provincial Public Inquiries Acts since Confed­eration have reserved to the provincial authority the power to order inquiries into matters connected with the Administration of Justice in the Provinces and associated therewith the power to compel wit­nesses to give evidence under oath.

If it had been the intention of the Parliament at Westminster to confine "administration of justice" in s. 92(14) to establishment and constitution of courts it would have been a simple matter to have used the language which that Parliament had adopted two years earlier in the Colonial Laws Validity Act (1865), 28-29 Viet., c. 63, s. 5.:

Every Colonial Legislature shall have, and be deemed at all Times to have had, full power within its Jurisdic­tion to establish Courts of Judicature, and to abolish and reconstruct the same, and to alter the Constitution thereof, and to make provision for the Administration of Justice therein . .

We would do well to compare that language with the language of s. 92(14).

The words "administration of justice" in s. 92(14) are intended to have wide meaning. They include, but are not limited to, the constitution, maintenance and organization of provincial courts of civil and criminal jurisdiction and they include procedure in civil matters. Any interpretation

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which would limit s. 92(14) to the setting up of the courts ignores the plain meaning of the words in the section and the plain meaning of the order in which those words appear as well as history and legislative intent. The use of the word "including" in s. 92(14) is no more intended to confine the "Administration of Justice" to "the constitution, maintenance and organization of the Courts" than the use of the same word "including" in s. 91(27) is intended to limit "The Criminal Law" to "procedure in criminal matters." As Mr. Justice Estey observed in R. v. Pelletier, supra, at p. 685, the words following "including" in s. 92(14) seek to amplify rather than restrict.

IV

Both the federal and provincial governments have accepted for over a century the status of the provincial governments to administer criminal jus­tice within their respective boundaries. The provin­cial mandate in that field has consistently been recognized as part and parcel of the responsibility of a provincial government for public order within the province.

Under head 92(14) of our Constitution, as I understand it, law enforcement is primarily the responsibility of the Province and in all provinces the Attorney General is the chief law enforcement officer of the Crown. He has broad responsibilities for most aspects of the Administration of Justice. Among these within the field of criminal justice, are the court system, the police, criminal investiga­tion and prosecutions, and corrections. The provin­cial police are answerable only to the Attorney General as are the provincial Crown Attorneys who conduct the great majority of criminal pros­ecutions in Canada.

At the federal level one finds a prosecution service answerable to the Attorney General of Canada, but s. 2 of the Criminal Code, defining "Attorney General", limits the authority of such service to the Northwest Territories and the Yukon Territory and to proceedings instituted at the instance of the Government of Canada in respect of a violation of any act or regulation of

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the Parliament of Canada other than the Criminal Code. Tremeear (1964-1975 Supplement) and Crankshaw (1959-1971 Permanent Supplement) both speak of the "broadening" in the role of the Attorney General of Canada reflected in the re-enactment of this definition in 1968-69, c. 38, s. 2(1). It is also interesting to observe that the learned author of Tremeear (6th ed. p. 14) refers to the position of the Attorney General of Canada in these words:

Since the statement in R. v. St. Louis (1897), 6 Que. Q.B. 389, 1 C.C.C. 141 by the late Mr. Justice Wurtele:

As the conduct or supervision of criminal prosecutions before the Courts devolves upon the provincial law officers, the Attorney General of Canada has no ministerial duties or official legal functions to perform in that connection, and consequently, when he, with the consent of a judge or under an order of the Court, prefers a bill of indictment, and conducts a prosecu­tion before the petit jury in which the Government of the Dominion is interested he occupies a position which is analogous to that of a private prosecutor,

the Attorney General of Canada has been given explicit status in Code ss. 54, 100, 229, 420, 601, 679, 720, 724 and 743.

It seems late in the day to strip the provinces of jurisdiction in respect of criminal justice which they have exercised without challenge for well over one hundred years. That is not to say that jurisdic­tion in the strict sense can come through consent or laches; however, history and governmental atti­tudes can be helpful guides to interpretation. As Lord Atkin said in Proprietary Articles Trade Association v. A-G. Can.[56], at 317:

Both the Act and the section have a legislative histo­ry, which is relevant to the discussion. Their Lordships entertain no doubt that time alone will not validate an Act which when challenged is found to be ultra vires; nor will a history of a gradual series of advances till this boundary is finally crossed avail to protect the ultimate encroachment. But one of the questions to be considered is always whether in substance the legislation falls within an enumerated class of subject, or whether on the contrary in the guise of an enumerated class it is an encroachment on an excluded class. On this issue the

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legislative history may have evidential value. V

Implicit in the grant to the provinces of exclu­sive legislative authority in respect of Administra­tion of Justice and in the grant to the federal government of exclusive legislative authority in respect of criminal law and procedure is an acceptance of a certain degree of overlapping. One should not expect to be able to draw a fine line between the two heads of power nor should one attempt to do so. Time and again the courts have given effect to what was said by Duff C.J. in Reference re Validity of the Combines Investiga­tion Act and of s. 498 of the Criminal Code[57], at p. 413:

Matters, however, which in one aspect and for one purpose fall within the jurisdiction of a province over the subjects designated by one or more of the heads of s. 92, may in another aspect and for another purpose, be proper subjects of legislation under s. 91, and in particu­lar under head 27.

Thus, a matter which for some purpose may fall within the scope of the federal power over criminal law and criminal procedure may also fall within the legitimate concern of the provinces as pertain­ing to the Administration of Justice. An argument has been advanced to the effect that if a province can inquire into what is said to be criminal law, it could equally inquire into other fields of exclusive federal jurisdiction such as banking or postal service or penitentiaries. In these proceedings, it is unnecessary to express any concluded view on the right of a provincial government to inquire into some subject of local concern, other than criminal law, touching upon one of the subjects of exclusive federal authority. It should not, however, be over-looked that a provincial inquiry into some aspect of exclusive federal power, such as banking, may not be on the same footing as an inquiry into some aspect of criminal activity, for in the latter inquiry the Province has a special source of exclusive power, administration of justice, upon which it can

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draw, which may not be available to it in other inquiries.

VI

The Order in Council establishing the Commis­sion of Inquiry requires the Commission only to inquire and report to the Attorney General. The action taken will rest with the Attorney General. It could take the form of establishing new and differ­ent techniques or organization within the bodies charged with law enforcement. It could take the form of prosecutions, subject to the protection afforded witnesses by the Canada Evidence Act. Changes to the Police Act or other provincial legislation might be required in which the provin­cial government could act within its constitutional capacity. A provincial commission of inquiry, inquiring into any subject, might submit a report in which it appeared that changes in federal laws would be desirable. There is nothing novel in this. Changes to the Criminal Code might seem war-ranted in which event one would expect the Attor­ney General to act in liaison with the federal government, as is done daily. There are only two questions to engage our attention: (1) Is the estab­lishment of the Inquiry within the constitutional competence of the Province of Quebec? (2) Are the constitutional rights against self-incrimination of any witness appearing before the Inquiry infringed or likely to be infringed? The wisdom of the Inquiry is not our concern. The novelty of the approach taken by the Province does not affect constitutional validity and the approach taken was no doubt considered by the Legislature of the Province of Quebec to be warranted to meet the new and malign menace presented by organized crime.

VII

The phrase "criminal procedure" does not lend itself to precise definition. In one sense, it is concerned

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with proceedings in the criminal courts and such matters as conduct within the courtroom, the competency of witnesses, oaths and affirmations, and the presentation of evidence. Some cases have defined procedure even more narrowly in finding that it embraces the three technical terms—plead­ing, evidence and practice. In a broad sense, it encompasses such things as the rules by which, according to the Criminal Code, police powers are exercised, the right to counsel, search warrants, interim release, procuring attendance of witnesses.

The words of Mr. Justice Taschereau, as he then was, in A. G. Que. v. A. G. Can.[58], at p. 603 would suggest that the narrow construction is the more appropriate:

The power given to the federal Parliament to legislate in criminal law and criminal procedure is the power to determine what shall or what shall not be "criminal", and to determine the steps to be taken in prosecutions and other criminal proceedings before the courts."

Macdonald, C.J.A. in In re Public Inquiries Act: In re Clement[59], at p. 117 wrote to the same effect:

The making of the criminal laws of Canada is assigned exclusively to the Dominion, so is the regula­tion of procedure in criminal matters. "Criminal mat­ters" are, in my opinion, proceedings in the criminal Courts, and "procedure" means the steps to be taken in prosecutions or other criminal proceedings in such Courts.

It is not necessary and perhaps impossible, to find a satisfactory definition of "criminal proce­dure." Although I would reject the view which would confine criminal procedure to that which takes place within the courtroom on a prosecution, I am equally of the opinion that "criminal proce­dure" is not co-extensive with "criminal justice" or that the phrase "criminal procedure" as used in the B.N.A. Act can drain from the words "administration of justice" in s. 92(14) that which

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gives those words much of their substance—the element of "criminal justice."

The courts have long distinguished between procedure and substantive law, and it would be wrong to take the form for the substance.

It would also seem that a valid distinction can be made between criminal procedure and an inqui­ry into criminal acts. What is in issue here is an inquiry into specific matters encompassed by the term, Administration of Justice in the Province. The Inquiry possesses purposes and functions which are separate and distinct from the proce­dures which accompany the investigation and pros­ecution in a criminal matter. Accepting that police investigation of an individual must comply with federal standards of criminal procedure, it is not immediately apparent why an investigative over-view of crime on a collective basis should be open to constitutional attack.

It has been argued that "Administration of Jus­tice" relates only to administration in respect of heads of exclusive provincial power. I cannot accept that view. The phrase "administration of justice" is free standing and an independent source of provincial power which would be shorn of mean­ing if reliance had to be placed always on some other head of power to give it effect.

VIII

None of the cases to which the Court has been referred save In re Public Inquiries Act: In re Clement, supra, touches directly upon the consti­tutional question which we face. Practically all of the cases can be distinguished for one reason or another, but several of those cited are helpful as reflecting the opinions held by jurists in the past as to the scope of the criminal law power or the Administration of Justice power. The first in time is R. v. Coote[60] in which the Privy Council held to be intra vires provincial legislation empowering provincially appointed Fire Commissioners to compel the attendance of witnesses, to examine

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witnesses under oath, and to commit to prison any witness refusing to answer without just cause.

It has been said that the Privy Council was mistaken in stating that all members of the Court from which the appeal was taken, the Court of Queen's Bench for the Province of Quebec, held that the constitution of the Court of the Fire Marshal was within the competency of the provin­cial Legislature. Even if the Board erred in this view, the important thing is that the Board enter­tained no doubt as to the provincial competence to enact the impugned legislation.

In one of the early cases, In re Prohibitory Liquor Laws[61], Mr. Justice Sedgewick considered the jurisdictional basis of the right or duty of maintaining peace and order and of seeing that law, whether of federal or local origin, was enforced and obeyed. The learned judge is reported as having said, at p. 248:

But it is argued that what is called "the police power" is possessed by the provinces under "municipal institu­tions", and that the right in question is a mere incident of the "police power". Now, if by "police power" is meant the right or duty of maintaining peace and order and of seeing that law, all law whether of imperial, federal or local origin is enforced and obeyed, then I agree that that power is wholly with the provinces. But it is with them, however, not because it specially belongs to "municipal institutions" but because they are charged with the "administration of justice." The legislatures may delegate this duty to municipal functionaries, but the mode of administration is purely a matter of provin­cial concern.

I can find little of assistance in Valin v. Langlois[62]. The issue in that case was the capacity of the federal Parliament to confer authority on provincial Superior Courts and the judges thereof to try controverted elections of Members of the House of Commons. In coming to the unanimous decision that the statute was intra vires, the judges of the Supreme Court of Canada considered inter alla the scope of s. 92(14) of the B.N.A. Act. They

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were agreed that the provincial authority to legislate with regard to the administration of justice and civil procedure did not derogate from federal power to legislate regarding procedure in matters over which it had exclusive legislative jurisdiction. (See Ritchie C.J. at pp. 15 & 22; Henry J. at p. 67; Taschereau J. at p. 81). Parliament thus has the power to legislate regarding procedure in mat­ters over which it has exclusive jurisdiction, such as criminal law (although that power is specified in s. 91(27) regarding criminal procedure) and bankruptcy. Such a holding does not affect the present case unless the Crime Inquiry is character­ized as a matter of criminal law or criminal proce­dure-the very issue in controversy.

The appellants argue that "criminal law" must be interpreted in its "widest sense" adopting those words from the decision of the Privy Council in A.G. Ont. v. Hamilton Street Railway Company[63], at p. 529. It would be well, however, to recall that Duff J., in Reference re Validity of Combines Investigation Act and of s. 498 of the Criminal Code[64], stated at p. 411 after commenting upon the Hamilton Street Railway Company judgment:

Nevertheless, some limitation upon the general words of s. 91(27) is necessarily implied by (I) the fact itself that co-ordinate exclusive authority in respect of a varie­ty of subjects is vested in the provincial legislatures, and executive authority of the same order in the provincial governments, and (2) character of the enactments of s. 92.

Reliance is also placed by appellants on a statement of Locke J. in Goodyear Tire & Rubber Co. v. The Queen[65], at p. 308.

The power to legislate in relation to criminal law is not restricted, in my opinion, to defining offences and providing penalties for their commission. The power of Parliament extends to legislation designed for the pre­vention of crime as well as to punishing crime.

While Locke J. does say that the federal government has powers to prevent crime, his words must

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be read in context. The issue was the power to create prohibitory orders under the Combines Investigation Act to prevent repeated violations. The issue was not crime investigation.

The respondent and provincial intervenants can equally cite Supreme Court authorities for provin­cial authority to legislate to prevent crime. The provincial authority, derived from s. 92(14), over policing and the suppression of crime, was the subject of comment by Duff C.J. in the case of Reference re the Adoption Act[66], at p. 403:

Moreover, while, as subject matter of legislation, the criminal law is entrusted to the Dominion Parliament, responsibility for the administration of justice and, broadly speaking, for the policing of the country, the execution of the criminal law, the suppression of crime and disorder, has from the beginning of Confederation been recognized as the responsibility of the provinces and has been discharged at great cost to the people; so also, the provinces, sometimes acting directly, sometimes through the municipalities, have assumed responsibility for controlling social conditions having a tendency to encourage vice and crime.

The next case which might be mentioned is Kalick v. The King[67], in which one finds language supportive of the provincial position. The issue was whether a bribe given in order to induce a police officer not to proceed against a party for violation of The Saskatchewan Temperance Act was given with intent to interfere with the "administration of justice" under s. 157 of the Criminal Code. Duff J. said at p. 182:

It seems clear that giving a bribe to prevent prosecu­tion for an offence is prima facie an interference with the administration of justice.

Later in the argument, after adverting to the argument that the application of the section was limited to offenders suspected of offending the criminal law strictly so-called, that is to say,

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against the criminal law as falling within the exclusive jurisdiction of the Parliament of Canada, the learned judge said:

While the word "crime" in the Criminal Code gener­ally speaking applies only to crimes strictly so-called and probably has that restricted meaning in this section, I think there is nothing requiring us to limit the meaning of the words administration of justice in the way suggested.

At p. 186 Brodeur J. said:

The work which the police officer was carrying out was authorized by the law and was absolutely necessary to put the wheels of justice in motion.

I am of opinion that the "administration of justice" mentioned in section 157 of the Criminal Code should not be restricted to what takes place after an informa­tion had been laid; but it includes the taking of neces­sary steps to have a person who has committed an offence brought before the proper tribunal, and pun­ished for his offence. It is a very wide term covering the detection, prosecution and punishment of offenders.

In Bédard v. Dawson[68], the question was whether a Quebec statute authorizing a judge to order the closing of a disorderly house was intra vires, the argument against validity being that the statute dealt with criminal law by aiming at the punishment of a crime. The Court held the statute to be intra vires the provincial Legislature. Idington J. said, at p. 684:

... in a very wide sense it is the duty of the legislature to do the utmost it can within its power to anticipate and remove, so far as practicable, whatever is likely to tend to produce crime; ..

and on the same page Duff J. delivered the follow­ing brief judgment:

The legislation impugned seems to be aimed at sup-pressing conditions calculated to favour the development of crime rather than at the punishment of crime. This is an aspect of the subject in respect of which the provinces seem to be free to legislate. I think the legislation is not invalid.

The final case I would touch upon before going on to deal with what might be termed the "coron­er" cases, is In re Public Inquiries Act: In re

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Clement, supra, a decision of the Court of Appeal of British Columbia. Mr. Justice Clement had been appointed a Commissioner to inquire whether intoxicating liquor had been unlawfully imported into the Province. The appointment was made pursuant to the Public Inquiries Act, R.S.B.C. 1911, c. 110 which empowered the Lieutenant-Governor in Council to appoint a Commissioner to inquire into matters connected with the good gov­ernment of the Province, the conduct of public business and the administration of justice in the Province. The Court was unanimous in upholding the appointment. Chief Justice Macdonald, early in his judgment, said, at p. 117:

I may say, at the outset that I have no doubt his appointment for the purpose of inquiring into breaches of the British Columbia Prohibition Act is not open to objection, and to that extent at least the order in council appointing him is valid; but is that valid which directed him to inquire into breaches of the criminal law of Canada? The inquiry in this respect is not I think one connected with good government, or the conduct of public business, and must be supported, if at all, as being connected with the administration of justice in the province, as that phrase is used in No. 14 of sec. 92 of the B.N.A. Act.

Later Chief Justice Macdonald said, at p. 118:

Under its powers in respect of administration of jus­tice when crime has been committed, the province puts the machinery of the criminal law in motion. This undoubtedly is one branch of the administration of justice, but the discovery of crime when it is merely suspected may, I think, also fall into that category. Provincial peace officers are charged with that duty amongst others. A provincial detective force might, I think, be organized under provincial laws for the very purpose for which the commissioner was appointed. Now, if I am right in thinking that investigations, extra-judicially, into the commission of crime for the purpose of discovering if and by whom committed are within the subject-matters assigned to the province under the words, "administration of justice," is there anything to prevent the province from making the inves­tigation effective by imposing on individuals an obliga­tion to give evidence under penalty for refusal? I think not. Such a power is not inconsistent, but consistent with the jurisdiction of the province to legislate concerning property and civil rights.

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and then continued with these words, which bear cogently:

No doubt to concede the power to the province to make investigations into breaches of Dominion laws would appear at first blush to be an anomaly, and it might well be argued that the powers conferred upon the province in respect of the administration of justice ought to be interpreted as conferring merely the duty or obligation to put the machinery of the Courts in motion, and to take the requisite steps to prosecute persons accused of crime. That narrow construction would, I think, preclude what has been generally recognized as one of the functions of government in the administration of justice, namely, the ferreting out of crime and iden­tification of criminals. There is nothing novel in com­pelling a witness to give evidence which may tend to incriminate him. That is done in the civil Courts and is the practice in one of the oldest criminal Courts of the realm, the coroner's inquest. With the justice or expe­diency of inquiries into crime by an extra-judicial pro­vincial commission I have not to concern myself. The power to appoint such rests somewhere. It is either with the Dominion or the province, or with each, and hence it is idle to urge as a reason against the validity of the order in council that it is inimical to the rights of the subject.

The other members of the Court expressed them-selves in a similar vein.

There is little enlightenment, as to the scope of provincial legislative power under s. 92(14), to be drawn from cases dealing with the Coroners' Acts. Neither of the Supreme Court of Canada cases, Batary v. A.G. Sask.[69], and Faber v. The Queen[70] deals with the constitutionality, in general, of such legislation.

The Batary case is of assistance in the present appeal only on the issue of compellability of wit­nesses. In that case, a majority of the Supreme Court (Fauteux J. dissenting) held that s. 15 of the Saskatchewan Coroners' Act, which purported to compel the appellant, charged with non-capital murder, to testify at the inquest into the death of his alleged victim, was ultra vires. Batary is of little use to the appellants here, for they have not been charged with any crime. Although one might

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argue that the protection against self-incrimina­tion extended to those who might be charged with a crime, this contention was rejected by the majority of the British Columbia Court of Appeal in Re Wilson Inquest[71], and by a majority of this Court in Faber, supra.

Faber is more helpful to this case, but it, too, is only peripherally so. In that case, the sole issue before this Court was the jurisdiction of the Court of Queen's Bench (Crown side) to grant a writ of prohibition to a coroner who had sentenced the appellant for contempt for refusing to testify at an inquest. The hearing had been ajourned after the coroner held that death had been caused by crime perpetrated by unknown persons. The proceedings were resumed two months later to determine their identity.

Although constitutionality of the Coroners’ Act of Quebec was clearly not in issue, Mr. Justice de Grandpré did discuss the criminal nature of the inquest so as to decide the proper court for judicial review. One should not unquestioningly transfer comments on "criminal law" in this context to criminal law in the constitutional context, although they can be of assistance.

Mr. Justice de Grandpré (writing on behalf of a majority of the Court), held that a coroner's inquest was not a matter of criminal law. While an ancillary or incidental result of the inquest might be a finding that a crime was committed and that a specified individual was responsible, this was not the sole or primary aim of the inquest. Thus the coroner's role is not restricted to criminal matters, but extends to broader social questions such as the determination of general trends endangering the public interest and the reassurance to the public that the state is concerned with the danger and doing something about it. Broad social interests underline the establishment of the Quebec Crime Inquiry.

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Mr. Justice de Grandpré also analyzed the organization of the coroners' inquest to show that it was not a matter of criminal law. There is, as in the present case, no accused, no lis, and no adjudi­cation of rights or guilt. If one applies Faber to the present case, one can argue that the Inquiry does not deal with criminal law. Again there is no lis, no accused; the concern is the gathering of infor­mation, not adjudication. One might seek to distin­guish Faber with the argument that the multi-pur­pose nature of the coroners’ inquest has no counterpart in the Crime Inquiry where the sole concern is to identify the scope and operation of organized crime. Arguably that is a federal matter either because a province cannot inquire into a subject of federal jurisdiction (criminal law) or because it is a colourable attempt to legislate regarding criminal procedure but in my opinion neither of these grounds is tenable.

The Wilson Inquest case, supra, is the only one which deals with the constitutionality of the Coroners' Act. A majority of the British Columbia Court of Appeal found the Act constitutional as relating to the administration of justice, largely for the reasons enumerated by Mr. Justice de Grandpré in Faber. The Wilson Inquest case aids in showing that an inquiry which deals to some degree with criminal matters is not a matter of "criminal law."

IX

The committal of appellants for contempt was based upon a refusal to be sworn and to testify, not upon a refusal to answer questions for fear of self-incrimination. Notwithstanding, concern was voiced during the appeal that the Crime Commis­sion's powers of subpoena and imprisonment for contempt interfered with a citizen's right to pro­tection against self-incrimination. In my view, there is little to justify this assertion in light of the provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5(2) and the Code of Civil Procedure, art. 309.

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By s. 5(1) of the Canada Evidence Act, the common law right of a witness to refuse to answer a question on the ground that his answer might tend to incriminate him was abolished. Section 5(2) was enacted to protect the witness against the use of his statements in subsequent legal proceedings. These sections read:

5. (1) No witness shall be excused from answering any question upon the ground that the answer to such question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.

(2) Where with respect to any question a witness objects to answer upon the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering such ques­tion, then although the witness is by reason of this Act, or by reason of such provincial Act, compelled to answer, the answer so given shall not be used or receiv­able in evidence against him in any criminal trial, or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of such evidence.

A similar provision is found in art. 309, C.C.P., which is made applicable to the proceedings of a Commission of Inquiry. Article 309 reads:

309. A witness cannot refuse to answer for the reason that his reply might tend to incriminate him or to expose him to a legal proceeding of any kind; but if he objects on that ground, his reply cannot be used against him in any penal proceedings instituted under any law of this province.

It was suggested in argument that the Canada Evidence Act has no effect in a provincial inquiry, as s. 2 reads:

2. This Part applies to all criminal proceedings, and to all civil proceedings and other matters whatever respecting which the Parliament of Canada has jurisdic­tion in this behalf.

With respect, I would disagree. The provisions in s. 5 prohibit the use of incriminating statements

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by a witness in proceedings subsequent to that in which the evidence is given. Section 2 has the effect of preventing the use of the statements in all criminal proceedings and in all civil proceedings and other matters subject to the legislative author­ity of the federal Parliament. The protections pro­vided by the Act do not affect the provincial inquiry’s operation, but subsequent proceedings.

In an exhaustive study of the subject of self-incrimination ("Is there a Right against Self-Incrimination in Canada?" (1973), 19 McG.L.J. 1) Professor Ed Ratushny observed, at p. 55:

The exclusion allowed by section 5(2) expressly extends to statements made under the compulsion of provincial statutes. There are a great number of provin­cial statutes under which witnesses may be compulsorily examined. Although the federal government has legisla­tive jurisdiction over Criminal Law and Procedure, under our distribution of powers, the legislatures have exclusive jurisdiction over the Administration of Justice in their respective provinces. As a result, the same persons are often involved in dealing with both criminal matters and matters arising under provincial legislation. The opportunity therefore arises for a provincial statute authorizing the examination of witnesses, to be used to advance an investigation with respect to a criminal offence.

The incriminating consequences to an accused of such a procedure are obvious, even if the testimony itself cannot be used at the criminal trial. The matter has received considerable judicial attention with respect to coroners' inquests.

There may be some concern that a person appearing before a commission of inquiry is not a "witness" in terms of s. 5. Although some cases have held that a party examined on discovery is not a "witness" for purposes of the Evidence Acts (Harrison v. The King[72] (Alta. C.A.); Webster & Kirkness v. Solloway Mills & Co., Ltd.[73] (Alta. C.A.); Staples v. Isaacs[74] (B.C. C.A.) ), I would

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agree with Rand J. in Klein v. Bell[75], that the word "witness" should be broadly interpreted. He said at p. 317:

A witness, in a broad sense, is one who, in the course of juridical processes, attests to matters of fact .. .

A person appearing before a provincial inquiry and testifying under oath or on affirmation is a wit­ness, for he or she is presenting evidence to the inquiry. Therefore, I am of the view that a person subpoenaed by the Commission can claim the pro­tection of s. 5(2).

There has also been expressed concern that the Commission of Inquiry instituted a new method of crime investigation—at a "wholesale" rather than "retail" level. Although a person cannot be forced to answer police questions at common law, it is argued that the Inquiry now forces him to do so, and so restricts common law rights. Professor Ratushny in the article mentioned above notes (at p. 64) that there is:

... little evidence of a general common law right against self-incrimination operative in Canada today. Section 5(of the Canada Evidence Act) has eliminated the common law privilege of witnesses to refuse to testify in certain circumstances. It also allows the Crown to compel the accused to assist in advancing the prosecu­tion against himself in a number of situations.

The Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (The Ouimet Report) commented on this limited protection, at p. 68:

A searching examination may . . . elicit facts or clues which enable the case to be independently proved. Thus the abolition of the privilege of a witness to refuse to answer on the ground that his answer may tend to incriminate him places an additional and powerful weapon in the hands of law enforcement.

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Whether or not one agrees with a result which may force a person to assist in an investigation of his criminal activity, the provisions of s. 5 of the Canada Evidence Act and both federal and provin­cial Inquiries Act compel such a result. Quebec's Crime Inquiry introduces no new and insidious form of investigation into our judicial system and there is no evidence before the Court that it is a colourable attempt to evade the procedural provi­sions of the Criminal Code.

X

On July 22, 1975, Mr. Justice Beetz granted an order summarizing the constitutional issue raised by the appellants in these appeals as follows:

Are Order in Council No. 2821-72 issued September 27th 1972, by the Lieutenant-Governor in-Council for the Province of Quebec, as well as sections 19, 21, 21a, 21-b, 21-c, 21-d, 21-e, 22, 22-b, 22-c, 22-d, 24 and 25 of the Police Act (Q.S. 1968, ch. 17 and amendments), sections 6, 7, 9, 10, 11, 12 and 16 of the Public Inquiry Commission Act (R.S.Q. 1964, ch. 11 and amend­ments), and sections 49, 50, 51, 52, 53, 54 and 284 of the Code of Civil Procedure of the Province of Quebec, ultra vires or otherwise anti-constitutional or inopera­tive?"

I would answer the question in the negative and dismiss the appeals.

BEETZ J.—I agree in substance with Mr. Justice Pigeon and Mr. Justice Dickson.

The purpose of s. 19 of the Police Act (Que. 1968, c. 17 as amended) and accessory enactments is to uncover crime and organized crime. The means are those of an inquest. They include coer­cion. Witnesses summoned before the Police Com­mission may be examined under oath or affirma­tion and must answer all questions put to them under pain of being found in contempt and fined or incarcerated.

In my view, such a statute cannot be character­ized otherwise than as a law relating to the administration of criminal justice and is within

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provincial legislative competence under s. 92(14) of the British North America Act, 1867.

Before Confederation, the provinces were in charge of the administration of justice, including criminal justice. It was contemplated by s. 91(27) of the British North America Act, 1867, that criminal law, substantive and procedural, would come under the exclusive legislative authority of the Parliament of Canada. But subject to this provision and to the paramountcy of federal law enacted under primary or ancillary federal jurisdiction, the provinces were to remain responsible in principle for the enforcement of criminal law and to retain such power as they had before with respect to the administration of criminal justice. They continued in fact to police their respective territories, to investigate crime, to gather and to keep records and informations relating to crime, to prosecute criminals and to supervise police forces, sheriffs, coroners, fire commissioners, officers of justice, the summoning of juries, recognizances in criminal cases, and the like. Pertaining to such functions is the power to make laws relating to public and reformatory prisons, expressed in s. 92(6) of the Constitution. Some of those respon­sibilities are executive in nature; but to carry them required instrumentalities which had to be regulat­ed, financed, abolished and reconstituted and the jurisdiction and powers of which had to be defined by legislation. Such legislation could not have been enacted unless the power to make laws for the administration of criminal justice was vested in the provincial legislatures. That is why s. 92(14) of the Constitution does not distinguish between civil and criminal justice: the natural meaning of the expression "the administration of justice" is broad enough to encompass both; indeed, it is so broad that it would have enabled the provincial legisla­tures to make laws relating to matters covered by ss. 96 to 100 of the Constitution, were they not prevented to do so by these very sections. That the expression "the administration of justice" was understood to have the widest scope is illustrated by s. 2 of the North-West Territories Act, 1869, 32-33 Viet., c. 3 (Can.), where it is found in conjunction with the expression generally used to

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confer, in terms of subject matters, the totality of legislative powers:

2. It shall be lawful for the Governor, by any Order or Orders, to be by him from time to time made, with the advice of the Privy Council (and subject to such conditions and restrictions as to him shall seem meet), to authorize and empower such Officer as he may from time to time appoint as Lieutenant-Governor of the North-West Territories, to make provision for the administration of Justice therein, and generally to make, ordain, and establish all such Laws, Institutions and Ordinances as may be necessary for the Peace, Order and good Government of Her Majesty's subjects and others therein; provided that all such Orders in Council, and all Laws and Ordinances, so to be made as afore-said, shall be laid before both Houses of Parliament as soon as conveniently may be after the making and enactment thereof respectively.

This Act was confirmed by the British North America Act, 1871, s. 5.

Similarly, the Quebec Act, 1774, 14 Geo. III c. 83, repealed the Royal Proclamation, 1763, so far as it related to the Province of Quebec, "and all and every the Ordinance and Ordinances made by the Governor and Council of Quebec for the Time being, relative to the Civil Government and Administration of Justice in the said Province ...". The intent of this enactement was to repeal all ordinances relating to any matter whatever.

The Quebec Act re-introduced French Law with respect to "Property and Civil Rights", while it decreed the continuance of the Criminal Law of England in the following terms:

"... That the same "(Criminal Law of England)" shall continue to be administered and shall be observed as law in the province of Quebec, as well in the description and quality of the offence as in the method of prosecution and trial; and the punishment and forfeitures thereby inflicted to the exclusion of every other rule of criminal law, or mode of proceeding thereon, which did or might prevail in the said Province before the Year of our Lord One thousand seven hundred and sixty-four; subject nevertheless to such Alterations and Amendments as the

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Governor . . ., by and with the Advice and Consent of the Legislative Council of the said Province ... shall, from time to time, cause to be made therein ...".

These terms are at once detailed and all-embrac­ing, one reason for such thoroughness being to stress the abolition of judicial torture which was possible under French law. It is significant how-ever that while the expression "property and civil rights" was repeated verbatim in s. 92(13) of the Constitution, the wording of s. 91(27) in no way approaches that used in the Quebec Act, with respect to criminal law. Should any such language be found in s. 91(27), it would leave no doubt that the Parliament of Canada was solely empowered to make laws for the administration of criminal justice. But the intent was to avoid this result. That is why s. 91(27) ought not to be construed so as to leave to the provinces no legislative jurisdic­tion over the administration of criminal justice. The natural meaning of s. 91(27) and the basic jurisdiction of the Parliament of Canada under that heading have been most appropriately described by Taschereau J., as he then was, in A.G. Que. v. A.G. Can.[76], at p. 603:

"The power given to the Federal Parliament to legislate in criminal law and criminal procedure, is the power to determine what shall or what shall not be 'criminal', and to determine the steps to be taken in prosecutions and other criminal proceedings before the Courts".

Section 19 of the Police Act does not correspond to that description.

It should be kept in mind that we are concerned in this case with a provincial statute and with provincial jurisdiction, not with the ultimate limits of federal jurisdiction nor with the extent to which provincial legislation would remain operative should the Parliament of Canada decide to enter and regulate the field of criminal investigation. Given the ancillary powers of the Parliament of Canada and the interrelated aspects of criminal justice, one is likely to find room for overlapping

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legislation in this area. In Proprietary Articles Trade Association v. A.G. for Canada[77], the Com­bines Investigation Act, (R.S.C. 1927, c. 26) and s. 498 of the Criminal Code were found intra vires of the Parliament of Canada: the main part of the legislation was criminal law; the rest could be supported under s. 91(3) and 91(22) of the Consti­tution. Provision was also made in the legislation for the appointment of a registrar and of commis­sioners and for the holding of inquiries. The Judi­cial Committee had this to say on the latter point:

If then the legislation in question is authorized under one or other of the heads specifically enumerated in s. 91, it is not to the purpose to say that it affects property and civil rights in the Provinces. Most of the specific subjects in s. 91 do affect property and civil rights but so far as the legislation of Parliament in pith and substance is operating within the enumerated powers there is constitutional authority to interfere with property and civil rights. The same principle would apply to s. 92, head 14, "the administration of justice in the Province", even if the legislation did, as in the present case it does not, in any way interfere with the administration of justice. Nor is there any ground for suggesting that the Dominion may not employ its own executive officers for the purpose of carrying out legislation which is within its constitutional authority, as it does regularly in the case of revenue officials and other matters which need not be enumerated (at pp. 326, 327).

The statement that the legislation in question did not "interfere" with the administration of jus­tice, whatever that means, can be considered as an obiter: the legislation would have remained valid even if it did trench upon the provincial power over the administration of justice, as was expressly recognized by the Judicial Committee, and wheth­er it had been enacted under the primary or the ancillary power of the Parliament of Canada. The result would have been identical had the Judicial Committee endorsed the submission of Counsel for the A.G. for Canada—which in my view presented a better approach-to the effect that:

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"the primary intention and effect is to make certain acts, when they are to the public detriment, offences; the provisions as to investigations being reasonably neces­sary for carrying out that primary intention. If any of those provisions are not directly within s. 91 head 27, they nevertheless are valid as being ancillary provisions to carry out the scheme of legislation ...". [1931] A.C. 310, at p. 314.

I do not find it necessary to express an opinion as to whether matters such as the issuance of search warrants upon a sworn information (Part XIII of the Criminal Code) or compelling the appearance of an accused person before a justice, by way of arrest or otherwise, (Part XIV of the Criminal Code) fall under primary or ancillary federal jurisdiction. They would appear to be relat­ed to specific crimes, already uncovered, and to the gathering of evidence necessary for the prosecution of such crimes rather than to an investigation of unknown criminal acts, of criminal practices and of crime as an organized system. If this hypothesis is correct, then those parts of the Criminal Code are perhaps essential elements of the criminal law, but they differ substantially from the impugned provincial statute. If on the other hand those enactments can be said to overflow into the field of criminal investigation, all that need be asked is whether they conflict with the Police Act. I see no such conflict.

We are not called upon to judge the wisdom of the impugned legislation. There is no doubt that the power to establish a commission of enquiry can be abused. This is true of almost any power, as has been said repeatedly, and does not make it of federal rather than of provincial concern. The issue whether there was abuse in the administra­tion of the Police Act does not arise in the case at bar where the ground for contempt is the refusal by appellants to be sworn in as witnesses and to answer questions put to them, on the sole basis of the alleged unconstitutionality of the statute under which the Commission was established.

The penalties imposed under the impugned legislation in cases where witnesses refuse to testify

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are of a coercive nature. Even if they are punitive, s. 92(15) of the Constitution would suf­fice to insure their constitutionality unless they be used as a colourable device to create new crimes, or to punish old ones otherwise than under the Criminal Code. This has been pleaded but not established.

Of great importance in this case, is the principle against self-incrimination. This criminal law prin­ciple would supersede provincial law: witnesses called before the Police Commission could not be compelled to give answers which might tend to incriminate them. This might impair the inquest although it would not affect the constitutionality of s. 19 of the Police Act nor improve the position of appellants: they have not declined to answer questions which might tend to incriminate them; they have refused to answer any question.

However, the principle against self-incrimina­tion has been altered by s. 5 of the Canada Evi­dence Act (R.S.C. 1970, c. E-10) insofar as the right to be excused from answering incriminating questions has been replaced by the inadmissibility of self-incriminating answers obtained under legal compulsion.

I agree entirely with the reasons given by Mr. Justice Pigeon and Mr. Justice Dickson for hold­ing that the protection contemplated by s. 5 was available to appellants.

I would answer the constitutional question in the negative and dismiss the appeals.

Appeals dismissed, LASKIN C.J. and DE GRANDPRÉ J. dissenting.

Solicitor for the appellants: L. R. Maranda, Montreal.

Solicitors for the respondent and the mis en cause: J. Richard, G. Tremblay et O. Prat, Mont-real et R. Thibaudeau, Quebec.

Solicitor for the Attorney General of Canada:

P. Landry, Ottawa.

Solicitor for the Attorney General of Ontario:

M. Manning, Toronto.

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Solicitor for the Attorney General of Alberta: W. Henkel, Edmonton.

Solicitor for the Attorney General of British Columbia: O. H. Vickers, Victoria.

Solicitor for the Attorney General of New Brunswick: H. Strange, Fredericton.