T-2682-87
2004 FC 1746
Sinclair M. Stevens (Plaintiff)
v.
The Attorney General of Canada (Defendant)
Indexed as: Stevens v. Canada (Attorney General) (F.C.)
Federal Court, O'Keefe J.--Toronto, January 20-24, April 28-May 1, 2003, January 19, 22 and June 14-16, 2004; Ottawa, December 15, 2004.
Inquiries -- Parker Commission Inquiry into conflict of interest allegations against federal Cabinet Minister -- Action for declaration setting aside Report -- Plaintiff said to have breached conflict of interest guidelines -- Report concluded no evidence of wrongdoing but plaintiff, on six occasions, in real conflict of interest -- Since guidelines in effect during relevant period failed to define "conflict of interest", Commissioner Parker developed own definition which was not revealed to plaintiff until Report issued -- Even if Commissioner's terms of reference broadly construed, Order in Council not authorizing him to come up with own definitions -- Where no jurisdiction, cannot arise from consent -- Inquiry prosecutorial in nature -- Unfair to develop standard after impugned conduct occurred -- Denied full opportunity to be heard -- Report set aside for excess of jurisdiction, breach of procedural fairness principles.
Plaintiff's action sought a declaration that the Parker Inquiry Report be set aside, an order removing that Report to Federal Court as well as the costs of this proceeding. Plaintiff had served as a member of Parliament, Cabinet Minister and Treasury Board President but had resigned as a Minister following media reports regarding conflicts of interest. The Privy Council named Ontario Chief Justice Parker to conduct a commission of inquiry into the conflict of interest allegations. Established under Part I of the Inquiries Act, the Parker Inquiry was tasked with inquiring into and reporting on the facts of plaintiff's conduct, and whether he had been in real or apparent conflict of interest. It was free to adopt whatever procedures and methods were considered expedient, to engage staff, counsel and experts and to rent office space in accordance with Treasury Board policy. Its report was to be submitted to the Governor in Council as soon as possible and its records filed with the Clerk of the Privy Council. While finding no evidence of wrongdoing, Commissioner Parker did conclude that plaintiff had been in a real conflict of interest on six occasions while a Minister. This was based on a definition of conflict of interest drafted by Parker himself and first disclosed in his Report. During plaintiff's years in power, he had come under three different conflict of interest guidelines, those put in place under Prime Ministers Clark, Trudeau and Mulroney but none of these defined the term "conflict of interest".
The issues were: (1) whether the Commissioner had exceeded jurisdiction by inquiring into what the definition of "conflict of interest" should be and then measuring plaintiff"s conduct against that standard; (2) whether he had been denied natural justice and procedural fairness in that what is "conflict of interest" had remained undefined until the Report was released; and (3) whether the principles of fundamental justice, protected under Charter, section 7, had been violated by the failure to proscribe the standard to be applied and to furnish adequate notice of the allegations.
Held, the action should be allowed.
(1) It did not matter whether the Commissioner applied the Trudeau Guidelines or the Mulroney Code, since neither defined "conflict of interest". Furthermore, Commissioner Parker's mandate was defined by the Order in Council which only authorized him to determine whether plaintiff had been in conflict under the Mulroney Code and not under the Trudeau Guidelines. Even if the Commissioner was entitled to consider the Guidelines, that would not avail defendant in as much as they failed to define "conflict of interest". It was submitted by the Attorney General that the Court should not take a legalistic, narrow approach to the Commissioner's terms of reference. But, no matter how broad an interpretation might be accorded the relevant provision of the Order in Council, it did not authorize the Commissioner to draft and utilize his own definitions of the terms "real conflict of interest" and "apparent conflict of interest". The Commissioner was empowered only to determine whether plaintiff was in conflict as defined by the Mulroney Code and the September 9, 1985 letter from the Prime Minister. Since neither regime defined conflict of interest, the Commissioner was faced with developing his own definition but that was something he lacked jurisdiction to do. It was suggested that plaintiff's counsel had agreed that the Commissioner might use his own definition in the Report but a party cannot consent to jurisdiction that does not exist.
(2) It was common ground that procedural fairness rules apply at a commission of inquiry. Plaintiff did not know the standard he was to be judged against as the definition of conflict of interest was not made known to him until he received the Report. It was unfair to develop a standard after the impugned conduct had occurred. There had been a breach of procedural fairness. The definition ought to have been provided in the various guidelines or code.
(3) Plaintiff further argued that he was denied a full opportunity to be heard as he did not know the standard against which his conduct was to be judged. In that regard, Cory J. wrote in Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System) that a "commission is required to give parties a notice warning of potential findings of misconduct which may be made against them in the final report . . . the notices should be as detailed as possible". In the circumstances, it could not be said that plaintiff had been afforded a full opportunity to be heard.
The Parker Report had to be set aside and declared of no force or effect for excess of jurisdiction and failure to adhere to the principles of procedural fairness.
statutes and regulations judicially
considered
Federal Court Rules, C.R.C., c. 663.
| Inquiries Act, R.S.C., 1985, c. I-11, ss. 2, 3, 4, 5, 11, 12, 13. |
| Order in Council P.C. 1986-1139. |
cases judicially considered
applied:
Landreville v. The Queen, [1977] 2 F.C. 726; (1977), 75 D.L.R. (3d) 380 (T.D.); Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1997] 2 F.C. 36; (1997), 142 D.L.R. (4th) 237 (C.A.); Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440; (1997), 151 D.L.R. (4th) 1; 48 Admin. L.R. (2d) 1; 216 N.R. 321.
considered:
Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97; (1995), 124 D.L.R. (4th) 129; 31 Admin. L.R. (2d) 261; 39 C.R. (4th) 141; 180 N.R. 1.
authors cited
Canada. Parliament. Special Joint Committee of the Senate and of the House of Commons on Conflict of Interests. Minutes of Proceedings and Evidence, 3rd Sess., 34th Parl., February 18, 1992.
Canada. Report of the Commission of Inquiry into the Facts of Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens. Ottawa: Supply and Services Canada, 1987 (Commissioner: William D. Parker).
Conflict of Interest and Post-Employment Code for Public Office Holders. Ottawa: Office of the Prime Minister, 1985.
Conflict of Interest Guidelines for Ministers of the Crown. Ottawa: Office of the Prime Minister, 1979.
Conflict of Interest Guidelines for Ministers of the Crown. Ottawa: Office of the Prime Minister, 1980.
ACTION for a declaration that the Report of the Parker Commission Inquiry into conflict of interest allegations concerning a minister of the Crown be set aside. Action allowed.
appearances:
Peter R. Jervis and Gillian T. Hnatiw for plaintiff.
M. Sean Gaudet and Kathryn A. Hucal for defendant.
solicitors of record:
Lerners LLP, Toronto, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for order and order rendered in English by
[1]O'Keefe J.: The plaintiff, Sinclair M. Stevens, commenced this action by a statement of claim dated December 18, 1987. The action was commenced under the former Federal Court Rules [C.R.C., c. 663].
[2]The plaintiff was a member of Parliament for the riding of York Simcoe and York Peel from 1972 to 1988. He was the Minister of the Department of Regional Industrial Expansion from September 17, 1984 until his resignation on May 12, 1986. Mr. Stevens also served as President of the Treasury Board from 1979 to 1980, and as finance critic for the opposition from 1974 to 1979 and again from 1980 to 1984.
[3]The plaintiff's resignation as a minister of the Crown came after media rumours of conflict of interests in his capacity as a minister of the Crown.
[4]In his letter of resignation, and in his speech to the House of Commons on May 12, 1986, the plaintiff asked that an impartial person be appointed to conduct an investigation into the facts surrounding the allegations of conflict of interest.
[5]The plaintiff denied the allegations.
[6]On May 15, 1986, the Privy Council appointed the Honourable William Dickens Parker, then Chief Justice of the Supreme Court of Ontario, High Court of Justice (Commissioner Parker) to conduct a commission of inquiry into the facts of the allegations of conflict of interest made against the plaintiff. The inquiry (the Parker Inquiry) was to be conducted pursuant to Part I of the Inquiries Act, R.S.C., 1985, c. I-11, as amended, and was to inquire into and report on:
| (a) the facts following allegations of conflict of interest made in various newspapers, electronic media and the House of Commons, with respect to the conduct, dealings or actions of the Honourable Sinclair M. Stevens; and |
| (b) whether the Honourable Sinclair M. Stevens was in real or apparent conflict of interest as defined by the Conflict of Interest and Post Employment Code for Public Office Holders and the letter from the Prime Minister to the Honourable Sinclair M. Stevens of September 9, 1985; and |
| The Committee do further advise that the Commissioner be authorized, |
| (a) to adopt such procedures and methods as he may consider expedient for the proper conduct of the inquiry and to sit at such times and at such places as he may decide; |
| (b) to engage the services of such staff and counsel as he may consider necessary or advisable, at such rates of remuneration and reimbursement as may be approved by the Treasury Board; |
| (c) to engage the services of such experts and other persons as are referred to in section 11 of the Inquiries Act who shall receive such remuneration and reimbursement as may be approved by the Treasury Board; and |
| (d) to rent office space and facilities for the Commission's purposes in accordance with Treasury Board policy; and |
The Committee do further advise that the Commissioner be directed to submit a report in both official languages to the Governor in Council as soon as possible, and to file his papers and records with the Clerk of the Privy Council as soon as reasonably may be after the conclusion of the inquiry.
[7]Commissioner Parker appointed Commission counsel and hired staff to assist him. Commissioner Parker appointed David Scott, Q.C. as senior Commission counsel and Marlys Edwardh and Edward Belobaba as associate Commission counsel.
[8]The plaintiff retained the late John Sopinka (who was appointed to the Supreme Court of Canada in 1988) as counsel. Mr. Sopinka was assisted by his associate, Kathryn Chalmers.
[9]Noreen Stevens was represented by Tom Lockwood and the Government of Canada was represented by Ian Binnie, now a Justice of the Supreme Court of Canada.
[10]The public hearing phase of the Parker Inquiry lasted from July 1986 to February 1987, sitting for 93 days, and hearing over 90 witnesses.
[11]Rogers Cable transmitted daily live broadcasts of the Parker Inquiry and the proceedings were covered by the print and news media.
[12]The deliberative phase of the Parker Inquiry ran from February 20, 1987 until the release of the Parker Report (the Report) on December 3, 1987 [Report of the Commission of Inquiry into the Facts of Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens].
[13]During the deliberative phase of the Parker Inquiry, Commission counsel docketed approximately 1,700 hours.
[14]Commissioner Parker found there to be no evidence of wrongdoing by the plaintiff, but also concluded that the plaintiff had been in a real conflict of interest on six occasions during his tenure as a Minister of the Crown. These findings were made using a definition of conflict of interest drafted by Commissioner Parker and first made known as part of the Report.
[15]The plaintiff, during his term, was governed by three different conflict of interest schemes, namely:
(i) the Conflict of Interest Guidelines for Ministers of the Crown (1979), implemented under Prime Minister Joe Clark (the Clark Guidelines);
(ii) the Conflict of Interest Guidelines for Ministers of the Crown (1980), implemented under Prime Minister Pierre E. Trudeau (the Trudeau Guidelines) [see Appendix E of the Report]; and
(iii) the Conflict of Interest and Post-Employment Code for Public Office Holders (1985), implemented under Prime Minister Brian Mulroney (the Mulroney Code) [see Appendix F of the Report].
None of these conflict of interest schemes contained a definition of conflict of interest.
[16]The statement of claim filed by the plaintiff on December 18, 1987 claimed the following relief:
| (A) a declaration that the Report be set aside and declared to be of no force and effect by reason of the matters set out in paragraph 5 of the Declaration [sic]; |
| (B) an order removing to this Court the said Report and all records, proceedings, papers and transcript of evidence relating to the Inquiry; |
| (C) his costs of this proceeding; and |
| (D) such further and other relief as the Plaintiff may be entitled to and as to this Court may seem just. |
Applicable Legislation
[17]The relevant sections of the Inquiries Act state:
2. The Governor in Council may, whenever the Governor in Council deems it expedient, cause inquiry to be made into and concerning any matter connected with the good government of Canada or the conduct of any part of the public business thereof.
3. Where an inquiry as described in section 2 is not regulated by any special law, the Governor in Council may, by a commission, appoint persons as commissioners by whom the inquiry shall be conducted.
4. The commissioners have the power of summoning before them any witnesses, and of requiring them to
(a) give evidence, orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters on solemn affirmation; and
(b) produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine.
5. The commissioners have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases.
. . .
11. (1) The commissioners, whether appointed under Part I or under Part II, may, if authorized by the commission issued in the case, engage the services of
(a) such accountants, engineers, technical advisers or other experts, clerks, reporters and assistants as they deem necessary or advisable; and
(b) counsel to aid and assist the commissioners in an inquiry.
(2) The commissioners may authorize and depute any accountants, engineers, technical advisers or other experts, the services of whom are engaged under subsection (1), or any other qualified persons, to inquire into any matter within the scope of the commission as may be directed by the commissioners.
(3) The persons deputed under subsection (2), when authorized by order in council, have the same powers as the commissioners have to take evidence, issue subpoenas, enforce the attendance of witnesses, compel them to give evidence, and otherwise conduct the inquiry.
(4) The persons deputed under subsection (2) shall report the evidence and their findings, if any, thereon to the commissioners.
12. The commissioners may allow any person whose conduct is being investigated under this Act, and shall allow any person against whom any charge is made in the course of an investigation, to be represented by counsel.
13. No report shall be made against any person until reasonable notice has been given to the person of the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel.
Issues
[18]The plaintiff stated the issues to be as follows:
| (i) Inadequacy of Notice--the failure to proscribe a standard of `conflict of interest' in the Trudeau Guidelines, the Code, and the Order-in-Council, or at any time during the public hearings or in advance of December 3, 1987, when the Parker Report was released, constitutes a denial of Mr. Stevens' right to procedural fairness and natural justice; |
| (ii) Reasonable Apprehension of Bias--Through their substantive participation in both the adjudicative and prosecutorial phases of the Parker Inquiry, Commission counsel's conduct gave rise to a reasonable apprehension of bias; |
| (iii) Excess of Jurisdiction--By conducting an investigation into what the definition of conflict of interest should be, and then measuring Mr. Stevens' conduct against it, Commissioner Parker exceeded the limits of the jurisdiction conferred on him by the Order-in-Council; and |
| (iv) Violations of Fundamental Justice--The Inquiry's procedural and substantive flaws in failing to proscribe the standard to be applied and provide adequate notice of the allegations constitute a violation of the principles of fundamental justice under s. 7 of the Charter. |
General Remarks on Commissions of Inquiry
[19]There are two unofficial types of public inquiries in Canada. This was discussed by Collier J. in Landreville v. The Queen, [1977] 2 F.C. 726 (T.D.), at page 757:
This was a somewhat unusual Royal Commission. The majority of Royal Commissions seem to be constituted to investigate a particular subject, thing or state of affairs. Rarely do they relate to one person. This Commission was, however, directed to the investigation of one particular person and his dealings with a certain company, its officers, or its shares. The Commissioner was requested to inquire into those dealings and to express an opinion whether, in the course of them, there had been misbehaviour by the plaintiff as a judge, or whether the plaintiff, by the dealings had proved himself unfit. I am unable to see how those general terms indicated to the plaintiff there would, or might be, an allegation of gross contempt of certain tribunals amounting to misconduct.
[20]In Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, at paragraphs 60-65:
Commissions of inquiry have a long history in Canada. This court has already noted (Starr v. Houlden, supra, at pp. 1410-11) the significant role that they have played in our country, and the diverse functions which they serve. As ad hoc bodies, commissions of inquiry are free of many of the institutional impediments which at times constrain the operation of the various branches of government. They are created as needed, although it is an unfortunate reality that their establishment is often prompted by tragedies such as industrial disasters, plane crashes, unexplained infant deaths, allegations of widespread child sexual abuse, or grave miscarriages of justice.
At least three major studies on the topic have stressed the utility of public inquiries and recommended their retention: The Law Reform Commission of Canada, Working Paper 17, Administrative Law: Commissions of Inquiry (1977); Ontario Law Reform Commission, Report on Public Inquiries (1992); and Alberta Law Reform Institute, Report No. 62, Proposals for the Reform of the Public Inquiries Act (1992). They have identified many benefits flowing from commissions of inquiry. Although the particular advantages of any given inquiry will depend upon the circumstances in which it is created and the powers it is given, it may be helpful to review some of the most common functions of commissions of inquiry.
One of the primary functions of public inquiries is fact-finding. They are often convened, in the wake of public shock, horror, disillusionment, or scepticism, in order to uncover "the truth". Inquiries are, like the judiciary, independent; unlike the judiciary, they are often endowed with wide-ranging investigative powers. In following their mandates, commissions of inquiry are, ideally, free from partisan loyalties and better able than Parliament or the legislatures to take a long-term view of the problem presented. Cynics decry public inquiries as a means used by the government to postpone acting in circumstances which often call for speedy action. Yet, these inquiries can and do fulfil an important function in Canadian society. In times of public questioning, stress and concern, they provide the means for Canadians to be apprised of the conditions pertaining to a worrisome community problem and to be a part of the recommendations that are aimed at resolving the problem. Both the status and high public respect for the commissioner and the open and public nature of the hearing help to restore public confidence not only in the institution or situation investigated but also in the process of government as a whole. They are an excellent means of informing and educating concerned members of the public.
This important characteristic was commented upon by Ontario Supreme Court Justice S. Grange following his inquiry into infant deaths at the Toronto Hospital for Sick Children:
| I remember once thinking egotistically that all the evidence, all the antics, had only one aim: to convince the commissioner who, after all, eventually wrote the report. But I soon discovered my error. They are not just inquiries; they are public inquiries. . . . I realized that there was another purpose to the inquiry just as important as one man's solution to the mystery and that was to inform the public. Merely presenting the evidence in public, evidence which had hitherto been given only in private, served that purpose. The public has a special interest, a right to know and a right to form its opinion as it goes along. [Emphasis in original.] |
(S. G. M. Grange "How Should Lawyers and the Legal Profession Adapt?" in A. Paul Pross, Innis Christie and John A. Yogis, eds., Commissions of Inquiry (1990), 12 Dalhousie L.J. 151, at pp. 154-55.)
The public inquiry has been even more broadly characterized as serving a particular "social function" within our democratic culture:
| . . . a commission . . . has certain things to say to government but it also has an effect on perceptions, attitudes and behaviour. Its general way of looking at things is probably more important in the long run than its specific recommendations. It is the general approach towards a social problem that determines the way in which a society responds to it. There is much more than law and governmental action involved in the social response to a problem. The attitudes and responses of individuals at the various places at which they effect the problem are of profound importance. |
| What gives an inquiry of this kind its social function is that it becomes, whether it likes it or not, part of this ongoing social process. There is action and interaction. . . . Thus this instrument, supposedly merely an extension of Parliament, may have a dimension which passes beyond the political process into the social sphere. The phenomenon is changing even while the inquiry is in progress. The decision to institute an inquiry of this kind is a decision not only to release an investigative technique but a form of social influence as well. |
(Gerald E. Le Dain, "The Role of the Public Inquiry in our Constitutional System", in Jacob S. Ziegel, ed., Law and Social Change (1993), 79, at p. 85.)
The investigative, educational and informative aspects of inquiries clearly benefit society as a whole. As well, many commissions of inquiry have, through their recommendations, achieved improvements in the particular situation being reviewed. Nonetheless, it cannot be forgotten that harsh and persuasive criticisms have been levelled against them. Every inquiry created must proceed carefully in order to avoid complaints pertaining to excessive cost, lengthy delay, unduly rigid procedures or lack of focus. More importantly for the purposes of this appeal is the risk that commissions of inquiry, released from many of the institutional constraints placed upon the various branches of government, are also able to operate free from the safeguards which ordinarily protect individual rights in the face of government action. These are very real dangers that must be carefully considered. First, however, it may be helpful to examine the need for and the positive attributes of this inquiry.
I must now proceed to an analysis of this particular inquiry.
Analysis and Decision
[21]I propose to first deal with Issue 3.
[22]Issue 3
Excess of Jurisdiction - By conducting an investiga-tion into what the definition of conflict of interest should be, and then measuring Mr. Stevens' conduct against it, did Commissioner Parker exceed the limits of the jurisdiction conferred on him by the Order in Council?
Commissioner Parker received his authority or jurisdiction to carry out the Commission of Inquiry from Order in Council P.C. 1986-1139, dated May 15, 1986 which read in part:
The Committee of the Privy Council, on the recommendation of the Prime Minister, advise that pursuant to section 37 of the Judges Act, the Honourable William Dickens Parker, be authorized to act as a Commissioner and that a Commission do issue under Part I of the Inquiries Act and under the Great Seal of Canada appointing the Honourable William Dickens Parker, to be a Commissioner to inquire into and report on
| (a) the facts following allegations of conflict of interest made in various newspapers, electronic media and the House of Commons, with respect to the conduct, dealings or actions of the Honourable Sinclair M. Stevens; and |
| (b) whether the Honourable Sinclair M. Stevens was in real or apparent conflict of interest as defined by the Conflict of Interest and Post Employment Code for Public Office Holders and the letter from the Prime Minister to the Honourable Sinclair M. Stevens of September 9, 1985; and |
| The Committee do further advise that the Commissioner be authorized, |
| (a) to adopt such procedures and methods as he may consider expedient for the proper conduct of the inquiry and to sit at such times and at such places as he may decide; |
[23]Under paragraph (a), Commissioner Parker was given the jurisdiction to inquire into and report on the facts following the allegations of conflict of interest made against Mr. Stevens.
[24]Under paragraph (b), Commissioner Parker was given the jurisdiction to inquire into and report on whether the plaintiff was in "real or apparent conflict of interest as defined by the Conflict of Interest and Post Employment Code of Public Office Holders and the letter from the Prime Minister to the Honourable Sinclair M. Stevens of September 9, 1985".
[25]As noted earlier in these reasons, the plaintiff was subject to three different conflict of interest guidelines during the period he was a member of Parliament or a Cabinet minister. These were the Clark Guidelines, the Trudeau Guidelines and the Mulroney Code. Because of the timetable for implementation of the Mulroney Code, the plaintiff was only covered by the Mulroney Code from April 11, 1986 to May 12, 1986, the date of his retirement. Commissioner Parker noted that he would consider both the Trudeau Guidelines and the Mulroney Code to be applicable (page 14 of the Report).
[26]Counsel for the plaintiff stated that it did not matter whether Commissioner Parker applied the Trudeau Guidelines or the Mulroney Code because neither contained a definition of conflict of interest, but counsel still argued that Commissioner Parker only had jurisdiction to determine the facts under paragraph (a) of the Order in Council.
[27]Commissioner Parker recognized this problem and in his Report stated at pages 13-14:
This chapter describes the rules relating to conflict of interest in place during the period between September 1984 and May 1986. A proper understanding of the rules is necessary to draw conclusions about whether Mr. Stevens complied with them, conclusions I have determined are inherently part of the fact-finding process with which I am charged.
As a preliminary matter I address the issue of which rules were in force during the period in which most of the events comprising the allegations took place.
The Applicable Conflict of Interest Regime
During this period the Government of Canada had in place two regimes to deal with conflicts of interest and ministers of the Crown. The first was contained in the guidelines (Appendix E) that were released together with a letter of commentary by Prime Minister Pierre Elliott Trudeau on April 28, 1980 (Appendix G). When the present administration came to power in September 1984 the guidelines were continued in effect pending a complete review of conflict of interest matters within the public service. Following this review, a new regime was announced by Prime Minister Brian Mulroney in the House of Commons on September 9, 1985, embodied in the code (Appendix F), the text of which was released that day together with a letter of commentary (the letter) from the prime minister (Appendix H).
The code took effect on January 1, 1986. Under section 74 of the code, however, a minister continued to be governed by the guidelines until a review of his or her compliance arrangements was completed. In the case of Mr. Stevens, this review was completed on April 11, 1986; therefore, until that date he was subject to the guidelines.
The matter is of some significance because my terms of reference direct me in part to inquire into and report on whether the Honourable Sinclair M. Stevens was in real or apparent conflict of interest as defined by the Conflict of Interest and Post Employment Code for Public Office Holders and the letter from the Prime Minister to the Honourable Sinclair M. Stevens of September 9, 1985.
I must determine how these terms can be construed in light of my finding that, during the period in which almost all the activities giving rise to the allegations took place, Mr. Stevens was subject to another conflict of interest regime.
There can be no serious question that my task is to assess the allegations in light of the applicable regime. The applicable regime was for the most part the guidelines, not the code. However, this finding does not alter my task appreciably since there is no substantial difference of concept, policy, or language between the two regimes. As well, neither contains an explicit definition of conflict of interest, and thus the definition itself, dependent on outside sources, does not vary. Further, all counsel dealing with the regimes addressed both of them. Finally, to interpret my terms of reference literally, as precluding analysis and consideration of the guidelines, would mean having to determine whether Mr. Stevens was in real or apparent conflict of interest as defined by a regime to which he was not subject, and so would be unfair to him.
To give meaning to my terms of reference, therefore, I have concluded that I must consider both regimes. In doing so, I am satisfied that I am neither altering in any meaningful way the ambit of my instructions, nor prejudicing Mr. Stevens. An examination of relevant provisions of the guidelines and code follows.
[28]The question now becomes whether Commissioner Parker exceeded his jurisdiction by adopting the definition of conflict of interest that he included in his Report. For the final outcome of this case, I do not believe that it matters whether Commissioner Parker referred to the Trudeau Guidelines plus the Mulroney Code as neither of these documents contained a definition of conflict of interest. I would add, however, that Commissioner Parker's mandate was defined by the Order in Council and that only authorized him to determine whether the plaintiff was in a real or apparent conflict of interest "as defined by the Conflict of Interest and Post Employment Code for Public Office Holders and the letter from the Prime Minister to the Honourable Sinclair M. Stevens of September 9, 1985". This would indicate to me that when dealing with (potential) conflict of interests, he was only given authority to consider the Mulroney Code and the letter of September 9, 1985, and not the Trudeau Guidelines.
[29]In the alternative, even if I was to find that Commissioner Parker could determine whether the plaintiff was in a real or apparent conflict of interest using the Trudeau Guidelines, that does not assist the defendant as neither the Mulroney Code nor the Trudeau Guidelines contained a definition of conflict of interest.
[30]Commissioner Parker, after hearing the evidence and submissions concluded in Chapter 3 of the Report at page 35, that the definitions of real and apparent conflict of interest should be:
Definitions
| · A real conflict of interest denotes a situation in which a minister of the Crown has knowledge of a private economic interest that is sufficient to influence the exercise of his or her public duties and responsibilities. |
| · An apparent conflict of interest exists when there is a reasonable apprehension, which reasonably well-informed persons could properly have, that a conflict of interest exists. |
These are the definitions of real and apparent conflict that in my view accord with the common law, and with the provisions of the guidelines and code. These are the definitions that I will be using in this report.
[31]Counsel for the defendant stated that the Court should not take an "overly and unduly legalistic restrictive, narrow approach to interpreting the terms of reference" for Commissioner Parker, as they represent the extent of Commissioner Parker's jurisdiction vis-à-vis his determination of the definition of conflict of interest for use in his Report.
[32]In Landreville v. The Queen, Collier J. stated [at page 757], when discussing terms of reference of a Commissioner:
I do not agree that the matter of gross contempt of the other tribunals can be said to be included, by implication or necessary intendment, in the terms of reference.
This was a somewhat unusual Royal Commission. The majority of Royal Commissions seem to be constituted to investigate a particular subject, thing or state of affairs. Rarely do they relate to one person. This Commission was, however, directed to the investigation of one particular person and his dealings with a certain company, its officers, or its shares. The Commissioner was requested to inquire into those dealings and to express an opinion whether, in the course of them, there had been misbehaviour by the plaintiff as a judge, or whether the plaintiff, by the dealings had proved himself unfit. I am unable to see how those general terms indicated to the plaintiff there would, or might be, an allegation of gross contempt of certain tribunals amounting to misconduct.
[33]I am of the view that the terms of reference for the appointment of Commissioner Parker, no matter how broad an interpretation is given to paragraph (b), would not authorize Commissioner Parker to draft and utilize his own definitions of a real conflict of interest and an apparent conflict of interest in the Report. I am of this view because paragraph (b) of the Order in Council only allows him to inquire into and report on whether the plaintiff was in a real or apparent conflict of interest as defined by the Mulroney Code and the letter from the Prime Minister dated September 9, 1985. Even if the Trudeau Guidelines were included, the result would be the same. There is no definition of conflict of interest in the Trudeau Guidelines and Commissioner Parker would again be faced with developing and applying his own definition of conflict of interest as he did, and I have concluded he had no jurisdiction to do that.
[34]The defendant also stated that the plaintiff's counsel agreed or consented to Commissioner Parker including his own definition of conflict of interest in the Report. Even if this had occurred, a party cannot consent to jurisdiction. A person either has jurisdiction or does not have jurisdiction.
[35]My view on this issue is reinforced by the remarks of Collier J. in Landreville v. The Queen, at pages 747-748, when speaking of consent jurisdiction:
Mr. Robinette had, before his telegram of January 17, 1966 (Exhibit 23), expressed his opinion on the constitutional issue. It was also his view a consent by the plaintiff could not validate something constitutionally invalid. The plaintiff in his letter of January 24, 1966, to Mr. Cardin (Exhibit 25) pointed out the procedure was under "all reserve".
No challenge was made, at the opening of the inquiry or at any other stage, based on the constitutional issue. Counsel for the defendant relied on that fact. The explanation is, I think, found at pages 1254 and 1255 of the transcript of proceedings. The plaintiff's testimony had then been completed. Mr. Robinette wished to tender evidence indicating the plaintiff had, long before, made efforts to have his position aired before a public inquiry. A ruling was requested. The Commissioner expressed the view it would be of little materiality (page 1233), but he heard it. At page 1254 the Commissioner fortuitously asked: "Was there ever any objection to the Commissioner under the Inquiries Act made?" [sic]. Mr. Robinette explained the legal position he had taken with Mr. Favreau. At pages 1254-1255 he continued:
| I still have grave doubts whether the Dominion has the authority to empower a Commissioner to investigate, but that is really a matter of the constitution, organization and maintenance of the courts from a provincial standpoint, and therefore within the jurisdiction of the province, but I must add this, sir, that when this Commission was set up, on the instructions of Mr. Landreville I agreed with the present Minister of Justice that I would not raise any constitutional argument before you, sir, and I do not raise that question. |
In my view, if there was no constitutional power in the Governor in Council to initiate this inquiry, then the plaintiff's consent or request for it, and the agreement not to object to it, cannot cure the defect.
[36]In conclusion on this point, I am of the view that Commissioner Parker exceeded the jurisdiction given to him in the Order in Council when he decided what the definition of conflict of interest should be, and then measured Mr. Stevens' conduct against it.
[37]Issue 1
Inadequacy of Notice - the failure to proscribe a standard of "conflict of interest" in the Trudeau Guidelines, the Code, and the Order-in-Council, or at any time during the public hearings or in advance of December 3, 1987, when the Parker Report was released, constitutes a denial of Mr. Stevens' right to procedural fairness and natural justice.
[38]The parties are in agreement that the rules of procedural fairness apply at a commission of inquiry such as the Parker Commission. In Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), [1997] 2 F.C. 36 (C.A.), Décary J.A. stated for the Court at paragraph 73:
The Inquiries Act does not impose any code of procedure. Section 2 of the terms of reference in fact authorizes the Commissioner "to adopt such procedures and methods as he may consider expedient for the proper conduct of the inquiry". It is common ground that while a commissioner has all necessary latitude, the procedure he establishes must nonetheless respect the rules of procedural fairness, including those set out in sections 12 and 13 of the Act. The concept of procedural fairness is a shifting one; it changes depending on the type of inquiry and varies with the mandate of the commissioner and the nature of the rights that the inquiry might affect. A public inquiry under the Inquiries Act is not, I would point out, a trial, the report of a commissioner is not a judgment and his recommendations may not be enforced. Thus a commissioner has broad latitude and discretion, and the courts will question his procedural choices only in exceptional circumstances.
And at paragraph 32:
This respect for the institution that the creation of a commission of inquiry has come to be in Canada must not, however, amount to blind respect. However legitimate and important the objective may be, it does not justify all the means that might be used to achieve it. The search for truth does not excuse the violation of the rights of the individuals being investigated. Individuals whose conduct is being scrutinized at a public inquiry conducted under Part I of the Act are so vulnerable and so powerless that the courts must not allow an inquiry to continue when a commissioner is ostensibly abusing his powers and transforming his role from investigator into inquisitor. The considerable powers of commissioners and the ready, numerous and often tempting opportunities for abuse make it particularly necessary that the courts be vigilant. As Mr. Justice Cory observed:
| . . . [there is] the risk that commissions of inquiry, released from many of the institutional constraints placed upon the various branches of government, are also able to operate free from the safeguards which ordinarily protect individual rights in the face of government action. |
[39]In Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1977] 3 S.C.R. 440 Cory J. for the Court stated, at paragraph 31:
The inquiry's roles of investigation and education of the public are of great importance. Yet those roles should not be fulfilled at the expense of the denial of the rights of those being investigated. The need for the careful balancing was recognized by Decary J.A. when he stated at para. 32 "[t]he search for truth does not excuse the violation of the rights of the individuals being investigated". This means that no matter how important the work of an inquiry may be, it cannot be achieved at the expense of the fundamental right of each citizen to be treated fairly.
And at paragraph 55:
The findings of fact and the conclusions of the commissioner may well have an adverse effect upon a witness or a party to the inquiry. Yet they must be made in order to define the nature of and responsibility for the tragedy under investigation and to make the helpful suggestions needed to rectify the problem. It is true that the findings of a commissioner cannot result in either penal or civil consequences for a witness. Further, every witness enjoys the protection of the Canada Evidence Act and the Charter, which ensures that the evidence given cannot be used in other proceedings against the witness. Nonetheless, procedural fairness is essential for the findings of commissions may damage the reputation of a witness. For most, a good reputation is their most highly prized attribute. It follows that it is essential that procedural fairness be demonstrated in the hearings of the commission.
[40]The plaintiff submitted that the Parker Inquiry was set up to inquire into allegations involving only him, and that it was prosecutorial in nature, which entitled him to a higher level of procedural fairness. Commissioner Parker's testimony about the Inquiry before the Special Joint Committee of the Senate and of the House of Commons on Conflict of Interests, Minutes of Proceedings and Evidence, 3rd Session, 34th Parliament, Issue No. 3, contained the following exchange at page 31:
| Mr. Layton: My memory goes back those four years, to watching the situation, the atmosphere, on TV. To me, it was adversarial. |
| Mr. Parker: It was. |
| Mr. Layton: So the legal counsel you would have called on was really almost like a prosecutor. |
| Mr. Parker: Yes, and on the other side, he was like a defendant. What I tried to do was get somewhere in between. I had a lot of good lawyers making suggestions. It is only my opinion. What I decided was fair and reasonable in the right way. I respect the opinions of other people. |
I agree with the plaintiff that this was the type of public inquiry that looked only at the conduct of one person.
[41]The plaintiff submitted that there was a breach of the duty of procedural fairness owed to him because he did not know the standard that he had to meet, in that, no definition of conflict of interest was contained in the Trudeau Guidelines, the Mulroney Code or the Prime Minister's letter of September 9, 1985. In addition, he submitted that the definition of conflict of interest utilized by Commissioner Parker to find him to have been in a conflict of interest was not made known to him until the release of the Report. The defendant submitted that since the standards of review were addressed both at the Inquiry and in the submissions of the parties to Commissioner Parker, the plaintiff had sufficient notice of the definition of conflict of interest.
[42]I am of the opinion that the plaintiff did not know the standard he was to be judged against as the definition of conflict of interest was not made known to him until the Report was given to him. This is especially so when Commissioner Parker was to determine whether the plaintiff was in a real or apparent conflict of interest as defined by the Mulroney Code and the letter from the Prime Minister dated September 9, 1985. As well, it appears to me that it would be unfair to develop a standard at a point in time after the conduct being complained of has occurred. I am of the view that it was a breach of the duty of procedural fairness owed to the plaintiff, to set a standard or definition of conflict of interest by stating the definition for the first time in the Report. In my view, the definition should have been stated in the various conflict of interest guidelines or code.
[43]Mr. Stevens also submitted that section 13 of the Inquiries Act, was not complied with. For ease of reference, section 13 states:
13. No report shall be made against any person until reasonable notice has been given to the person of the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel.
[44]The plaintiff does not contend that he was not given the right to be heard in person or by counsel. He submitted the question is whether he was allowed "full opportunity to be heard in person or by counsel" when he did not know the standard that his conduct was to be judged against, as the standard or definition of conflict of interest was not made known until it was seen in the Report.
[45]In Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), Cory J. stated, at paragraph 56:
That same principle of fairness must be extended to the notices pertaining to misconduct required by s. 13 of the Inquiries Act. A commission is required to give parties a notice warning of potential findings of misconduct which may be made against them in the final report. As long as the notices are issued in confidence to the party receiving them, they should not be subject to as strict a degree of scrutiny as the formal findings. This is because the purpose of issuing notices is to allow parties to prepare for or respond to any possible findings of misconduct which may be made against them. The more detail included in the notice, the greater the assistance it will be to the party. In addition, the only harm which could be caused by the issuing of detailed notices would be to a party's reputation. But so long as notices are released only to the party against whom the finding may be made, this cannot be an issue. The only way the public could find out about the alleged misconduct is if the party receiving the notice chose to make it public, and thus any harm to reputation would be of its own doing. Therefore, in fairness to witnesses or parties who may be the subject of findings of misconduct, the notices should be as detailed as possible. Even if the content of the notice appears to amount to a finding that would exceed the jurisdiction of the commissioner, that does not mean that the final, publicized findings will do so. It must be assumed, unless the final report demonstrates otherwise, that commissioners will not exceed their jurisdiction.
[46]The problem in this case arose because neither the Trudeau Guidelines, the Mulroney Code, nor the Prime Minister's letter of September 9, 1985 contained the standard, or the definition of conflict of interest that the plaintiff was supposed to have met. In addition, the terms of reference appointing Commissioner Parker did not give him jurisdiction to define a standard or definition of conflict of interest.
[47]Given that one of the purposes of issuing the section 13 notices is to allow a party to respond to any possible findings of misconduct that might be made against him, I believe that at the very least, the party must know what standard is being applied to his conduct to determine whether he breached that standard. In the present case, it cannot be said that the plaintiff had "full opportunity to be heard in person or by counsel" when he did not know what the standard or the definition of conflict of interest was until he read about it in the Report.
[48]For the above reasons, I am of the view that the plaintiff's claim should succeed.
[49]The plaintiff's claim is allowed and a declaration is issued that the Parker Report is set aside and declared to be of no force or effect in consequence of the excess of jurisdiction by the Commissioner, and a failure to act in accordance with the principles of procedural fairness.
[50]Because of my disposition on these issues, I will not deal with the remaining issues raised by the plaintiff.
[51]The parties are entitled to speak to costs.
ORDER
[52]IT IS ORDERED that:
1. The plaintiff's claim is allowed and a declaration is issued that the Parker Report is set aside and declared to be of no force or effect in consequence of the excess of jurisdiction by the Commissioner, and a failure to act in accordance with the principles of procedural fairness.
2. The parties are entitled to speak to costs and a further order will issue with respect to costs.