T-3154-75
André Desjardins (Plaintiff)
v.
Claude Bouchard, Jean Paul Gilbert, The Nation
al Parole Board and The Attorney General of
Canada (Defendants)
Trial Division, Walsh J.—Montreal, May 26;
Ottawa, July 22, 1976.
Jurisdiction—Imprisonment—Plaintiff seeking declaration
that defendants lack jurisdiction to summon him for hearing,
and to recommend to Solicitor General that revocation of his
pardon, procedure leading to revocation and Order in Council
revoking pardon are null and void—Whether Court can set
aside Order in Council—Whether failure to comply with audi
alteram partem rule and rules of natural justice—Criminal
Records Act, R.S.C. 1970 (1st Supp.) c. 12, ss. 4(4),(5), 7—
Federal Court Act, ss. 2, 18, 28(6)—Act to Amend the Act on
Labour Relations in the Construction Industry (Que.) Bill 30,
1975, s. 2(g).
As a result of information it had received, and in conformity
with a request from the Solicitor General of Canada, the
National Parole Board undertook an inquiry relative to plain
tiff's conduct to determine whether his pardon should be
revoked. The Minister of Justice of Quebec requested the
Solicitor General to do so under section 7 of the Criminal
Records Act, mentioning the report of the Cliche Commission
of Inquiry into Union Freedom in the Construction Industry. In
a letter from the National Parole Board, plaintiff was instruct
ed to appear before two members of this Commission in
connection with the recommendation which the Commission
was proposing to make. He appeared, objected to the jurisdic
tion of the Commission or the Board, and pleaded doubt as to
impartiality, as the Commission had already decided to make
the recommendation. The Commission refused plaintiff's
requests to disclose the nature of the complaints and proof of
bad conduct, affirming that its recommendation was made
under section 7(b)(i) of the Act, and that it was incumbent on
plaintiff to show why the pardon should not be revoked. Plain
tiff refused to justify himself so long as the grounds were
unknown, and the hearing was adjourned to permit him to
make written representations. He was again summoned, again
denied his requests for the complaints and proof against him,
and again, he refused to make representations. The Commis
sioners then recommended revocation of pardon, and the
pardon was revoked under section 7. Plaintiff sought a declara
tion that the Commissioners and Board lacked jurisdiction to
summon him or to recommend revocation, that the procedure
leading to the revocation was a nullity, and that the Order in
Council revoking was null, void and of no effect.
Held, the action is dismissed. No right of review is available
under section 28 of the Federal Court Act even if the decision
to revoke was one which should have been judicially or quasi-
judicially made, due to section 28(6). If it had been intended to
exclude such relief against the Governor in Council, a similar
restriction should have been included in section 18, rather than
relying on the definition in section 2 to exclude such relief. If
no such relief was available against an order in council by
application of the definition of "federal board etc ..." in
section 2, then it was superfluous to specifically exclude the
remedy by way of review by the inclusion of subsection (6) of
section 28. The Court cannot and should not review the evi
dence with the view of determining whether there was "reason-
able proof" before the Governor in Council to justify the Order
in Council, but must merely consider whether the proper
procedure was followed in conformity with the statute. Section
7 of the Criminal Records Act gives no indication of the
procedure, but gives wide discretion to the Governor in Council.
The evidence need only be established to his satisfaction, and
the phrase "no longer of good conduct" can be broadly inter
preted. Information could presumably have been obtained by
the Governor in Council in order to so conclude from one or
more sources—the report of the Cliche Commission alone
might well have sufficed. Since the matter had already been
referred to the Parole Board for investigation, the Board fol
lowed revocation procedure. The decision to refer the matter to
the Board in the absence of any express provision in the Act as
to the investigation, was without fault. An order of the Board
revoking parole is, it has been held, entirely within the Board's
discretion as an administrative matter, not subject to judicial
review. Here, the Board's decision was not a final determina
tion, but it can be argued that its recommendation would
undoubtedly be accepted by the Governor in Council, and it is
perhaps sophistry to suggest that since the Board was merely
investigating, and not deciding, it was not obliged to act
judicially or quasi-judicially.
The decision was not one which should have been arrived at
without complying with rules of natural justice, including the
right to be heard. As to the alleged bias, while it might have
been preferable had the letter from the Board merely indicated
that the Commission was considering whether to recommend
the revocation, and invited plaintiff to make representations,
rather than indicating that it was proposing to make such a
recommendation, thereby shifting the burden onto plaintiff,
this was not sufficient to prevent completion of the inquiry and
making of the report, especially as it was only a recommenda
tion, not a final decision.
Finally, it is not denied that plaintiff was twice given every
opportunity to be heard; while normally, in order to make
adequate representations, a party must know what the charges
against him are, this need not be the case if he is already fully
aware of what he is accused of. He was, here, aware of all the
evidence before the Cliche Commission relating to his conduct,
and of its gravity. There is no reason to assume that any further
evidence other than what could be found in the Commission's
report was had or required. Plaintiff was given full opportunity
to be heard, and has only himself to blame for his silence.
"B" v. Commission of Inquiry [1975] F.C. 602; Landre-
ville v. The Queen [1973] F.C. 1223; Wilson v. Esquimalt
and Nanaimo Railway Company [1922] 1 A.C. 202;
Howarth v. National Parole Board [1976] 1 S.C.R. 453;
The King v. Legislative Committee of the Church
Assembly [1928] 1 K.B. 411; Confederation Broadcasting
Limited v. Canadian Radio- Television Commission
[1971] S.C.R. 906; Lazarov v. Secretary of State [1973]
F.C. 927 and Komo Construction Inc. v. Quebec Labour
Relations Board [1968] S.C.R. 172, applied. Gruen Watch
Company of Canada Limited v. Attorney General of
Canada [1950] O.R. 429 and Border Cities Press Club v.
Attorney General for Ontario [1955] O.R. 14, agreed
with. Barnard v. National Dock Labour Board [1953] 2
Q.B. 18; Ex parte Sullivan (1941) 75 C.C.C. 70; Ex parte
McCaud [1965] 1 C.C.C. 168; Calgary Power Limited v.
Copithorne [1959] S.C.R. 24; Nakkuda Ali v. Jayaratne
[1951] A.C. 66; Guay v. Lafleur [1965] S.C.R. 12; Saul -
nier v. Quebec Police Commission [1976] 1 S.C.R. 572;
Kanda v. Government of Malaya [1962] A.C. 322 and
Teasdale v. Liquor Permit Control Commission [1974]
S.C. 319, discussed. Cathcart v. Public Service Commis
sion [1975] F.C. 407, distinguished.
ACTION.
COUNSEL:
M. Proulx and M. Robert for plaintiff.
G. Côté for defendants.
SOLICITORS:
Proulx & Levesque, Montreal, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
WALSH J.: At the opening of the hearing an
amendment was granted by consent so as to substi
tute the Attorney General of Canada as a defend
ant in place of Her Majesty The Queen. This is a
declaratory action by plaintiff seeking a declara
tion that Commissioners Claude Bouchard and
Jean Paul Gilbert and The National Parole Board
had no jurisdiction to summon the plaintiff for
holding an inquiry nor to make a recommendation
to the Solicitor General of Canada as to the revo
cation of the pardon granted to him on May 8th,
1973, pursuant to the provisions of the Criminal
Records Act' and to declare as a nullity all the
actions, inquiry, hearing, decision, procedure and
recommendation of the said Commissioners and
National Parole Board as to the revocation of the
pardon and further to declare null and of no effect
the Order in Council made by the Governor in
Council on October 9th, 1975, revoking the said
pardon by Order in Council P.C. 1973-1078.
There is very little disagreement as to the facts
and the case was submitted solely on the basis of
an agreed statement of facts and various exhibits
which were produced by consent, no witnesses
being called. The agreed statement of facts sets
out that on May 8th, 1973, plaintiff was pardoned
by Order in Council issued pursuant to the afore
mentioned Criminal Records Act, but that subse
quently as a result of information which had come
to its attention and in conformity with a request
from the Solicitor General of Canada the National
Parole Board in the autumn of 1974 undertook an
inquiry concerning plaintiff's conduct with a view
of determining whether it would be appropriate to
recommend that the said pardon be revoked.
Subsequently by letter dated May 8th, 1975, the
Minister of Justice for the Province of Quebec
requested the Solicitor General of Canada to
revoke the said pardon in accordance with the
provisions of section 7 of the said statute, mention
ing the Report of the Quebec Commission of
Inquiry into Union Freedom in the Construction
Industry. It is admitted that this was an inquiry
created by the Quebec Government and presided
over by Judge Robert Cliche, who had submitted
its Report to the Government of Quebec on May 2,
1975, one of the recommendations of the said
Commission's Report being to the effect that the
law should be amended so as to exclude from
union office any person found guilty of certain
crimes.
By letter dated May 21, 1975, signed by Pierre
L. Dupuis of the Pardon and Judicial Records
Section of the Parole Board, plaintiff was asked to
appear before two members of the Commission,
namely, Messrs. Claude Bouchard and Jean Paul
Gilbert, to make whatever representations he
' R.S.C. 1970, (1st Supp.), c. 12.
might deem desirable in connection with the
recommendation which the Commission was
proposing to make to the Solicitor General to
revoke his pardon. He appeared on June 2, 1975,
before them with his attorney who immediately
raised the question of the absence of jurisdiction of
the Commissioners or of the National Parole
Board in connection with the revocation of the
pardon since the Act is silent with respect to giving
any jurisdiction to the Commission or to the Com
missioners as to such revocation, and that there
fore they had no authority to summon him to an
inquiry or to make a recommendation to the
Solicitor General of Canada. In reply to this objec
tion the Commissioners stated that the Act gave
them jurisdiction with respect to revocation of
pardons analogous to that given to them in connec
tion with the granting of a pardon. At this time no
mention was made of the fact that they had been
authorized to hold an inquiry by the Governor in
Council or by any other person.
Under reserve of this first objection as to juris
diction plaintiff's counsel also pleaded that there
were grounds for doubting the impartiality of the
Commissioners as the Commission had already
decided to recommend to the Solicitor General of
Canada the revocation of the pardon before sum
moning or hearing the plaintiff. The Commission
ers also rejected this objection and invited plaintiff
to make whatever representations he wished.
Before making representations plaintiff's coun
sel asked the Commissioners to indicate the nature
of the complaints and proof of bad conduct which
they had against plaintiff in order that he could
make pertinent representations to refute them, but
they refused categorically to disclose these com
plaints or proof, affirming that their recommenda
tion was made by virtue of the provisions of sub-
paragraph (i) of paragraph (b) of section 7 of the
Criminal Records Act and that it was incumbent
on plaintiff to show why the pardon should not be
revoked. Plaintiff refused to justify himself so long
as the grounds for the revocation were not made
known to him and the hearing was then adjourned
to permit his counsel to submit written authorities
which he did in due course. Plaintiff was then
summoned again for August 15th, 1975, at which
time his counsel reiterated his demand for the
complaints and proof against him and the Com
missioners again refused whereupon plaintiff again
refused to make representations for the same rea
sons. The Commissioners then indicated to plain
tiff that they would transmit their recommenda
tion to the Solicitor General of Canada within a
period of four to six weeks. In due course they did
so recommending the revocation of the pardon.
The Solicitor General in turn then made this
recommendation to the Governor in Council and
by Order in Council dated October 9th, 1975, the
pardon was revoked on the grounds that plaintiff
had ceased to be of good conduct, the whole
pursuant to section 7 of the Act.
Section 7 to which reference has been made
reads as follows:
7. A pardon may be revoked by the Governor in Council
(a) if the person to whom it is granted is subsequently
convicted of a further offence under an Act of the Parliament
of Canada or a regulation made thereunder; or
(b) upon evidence establishing to the satisfaction of the
Governor in Council
(i) that the person to whom it was granted is no longer of
good conduct, or
(ii) that such person knowingly made a false or deceptive
statement in relation to his application for the pardon, or
knowingly concealed some material particular in relation
to such application.
It is common ground that plaintiff was not
subsequent to his pardon convicted of a further
offence and in fact a further admission was made
under reserve of defendants' objection to the rele
vancy of same that he had been charged with
conspiracy under section 423 of the Criminal Code
and was acquitted on October 31st, 1974, and that
another charge under section 305 of extortion by
threats or violence also led to an acquittal in
November 1975, that is to say after the revocation
of the parole. It is not contended that plaintiff had
made any false or deceptive statement in relation
to his application for the pardon which incidentally
related to offences in 1951, 1954 and 1959 respec
tively, so that the revocation had to be based solely
on subparagraph (i) of paragraph (b) of section 7
that upon evidence it was established to the satis
faction of the Governor in Council he was no
longer of good conduct. A revocation on the
grounds that the pardoned person is no longer of
good conduct evidently constitutes wider grounds
than a revocation for conviction of a further
offence, so that even though plaintiff was not
convicted of the offences with which he was
charged arising out of the incidents referred to in
the Cliche Report, this would not prevent the
Governor in Council from reaching a conclusion
that he was no longer of good conduct, assuming
that the proper procedure was followed and that he
had information justifying such a finding. In fact
in his report to the Governor in Council the Solici
tor General states
[TRANSLATION] Following the granting of the pardon certain
confidential information received led the Commission to estab
lish that André Desjardins is no longer of good conduct. It
seems that he associates with people closely associated with the
mobs and that his relations with these people are of a nature to
give ground to believe that these are more than accidental
meetings. , Furthermore he is awaiting trial under charges laid
by virtue of sections 305 and 423 of the Criminal Code. 3
In the letter of May 8th, 1975, from the Minis
ter of Justice of Quebec to the Solicitor General of
Canada he makes reference to the Cliche Report
stating it has been made public and he encloses a
copy of it in which he states the case of Desjardins
is analyzed. It is evident therefore that the Solici
tor General had the recommendations of this
Report before him and it can certainly be pre
sumed that the Commissioners who at his request
were inquiring into the possible revocation of Des-
jardins' parole would also have seen this Report
before their letter to Desjardins of May 21st, 1975,
calling on him to appear and in effect to show
cause why they should not recommend the revoca
tion of his pardon. It is important to emphasize,
however, that it is admitted that the Commission
ers commenced their inquiry into his conduct in
the autumn of 1974 long before the Report of the
Cliche Commission or the letter from the Quebec
Minister of Justice, and while the revocation of the
, This sentence reproduces the same words used by the Parole
Board in its recommendation as appears from a letter written
on its behalf to plaintiff's attorney on November 26, 1975
advising him of the revocation of the pardon.
3 It is my understanding that the further admission made in
Court under reserve of objection as to its relevancy, which was
not reduced to writing, would indicate that he had already been
acquitted of the conspiracy charge on October 31, 1974 but
there may be an error as to this date, which, for the reasons
given above is not critical to the decision of this case in any
event.
pardon may therefore have been precipitated by
this letter it cannot be said to have been instigated
by it. The special significance of the revocation of
the pardon arises from the fact that by virtue of
the provisions of an Act to Amend the Act on
Labour Relations in the Construction Industry
being Bill 30, 1975, sanctioned May 22nd, 1975,
the National Assembly of Quebec declared inca
pable of exercising syndical functions any person
found guilty of certain crimes. Section 2(g) second
paragraph of the Act reads in part as follows:
Except where the person found guilty is granted a pardon
under the Criminal Records Act (Statutes of Canada), the
disqualification provided for above shall subsist for five years
after the term of imprisonment fixed by the sentence; in the
case of a sentence to a fine only or in the case of a suspended
sentence, the disqualification shall subsist for five years from
the date of the conviction.
Plaintiff contends that the adoption of this law and
the nature of the Report of the Cliche Commission
influenced the Commissioners of the National
Parole Board when they made their recommenda
tion to the Governor in Council and also
influenced the latter when he decided to revoke the
pardon which had been granted to plaintiff.
The Criminal Records Act sets out in section 4
the procedure for dealing with an application for a
pardon which is made to the Minister who then
refers it to the Board which causes proper inquiries
to be made. Subsection (4) however reads as
follows:
(4) Upon completion of its inquiries, the Board shall report
the result thereof to the Minister with its recommendation as to
whether a pardon should be granted but, if the Board proposes
to recommend that a pardon should not be granted, it shall,
before making such a recommendation, forthwith so notify the
applicant and advise him that he is entitled to make any
representations to the Board that he believes relevant; and the
Board shall consider any oral or written representations made
to it by or on behalf of the applicant within a reasonable time
after any such notice is given and before making a report under
this subsection.
and subsection (5) reads:
(5) Upon receipt of a recommendation from the Board that
a pardon should be granted, the Minister shall refer the recom
mendation to the Governor in Council who may grant the
pardon which shall be in the form set out in the schedule.
The Act however makes no similar provision for
the procedure for revocation of pardon and it is
plaintiff's contention that he should have the same
opportunity to make representations and be heard
as he would have had in the first instance had the
Board proposed to recommend that the pardon
should not be granted. However, in the case of the
granting of a pardon subsection (5) provides that
the Governor in Council "may" grant the pardon
but states that the Minister "shall" refer the
recommendation to the Governor in Council.
Plaintiff contends that for all practical purposes
the Governor in Council follows the recommenda
tion of the Parole Board without making any
further inquiry or having before him any other
evidence than the Parole Board's recommendation.
He contends moreover that while the granting of a
pardon is a privilege so that pursuant to subsection
(4) (supra) the Board may make its inquiries
without first advising the applicant and it is only
when the recommendation is going to be unfavour
able that he must be given an opportunity to make
representation, the situation is different once a
pardon has been granted since it constitutes an
acquired right which should not be taken away
from the party without clear evidence, with which
he has been confronted and given an opportunity
to answer, establishing the existence of sufficient
grounds to justify a conclusion that he is "no
longer of good conduct".
The first question to be considered is whether
this Court can set aside the Order in Council
revoking plaintiff's pardon by means of the present
declaratory proceedings. I cannot agree with plain
tiff's contention that the Governor in Council is a
"federal board commission or other tribunal.. .
having, exercising or purporting to exercise juris
diction or powers conferred by or under an Act of
the Parliament of Canada" within the meaning of
section 2 of the Federal Court Act 4 . The relief
sought however, is against the named defendants
including the Attorney General of Canada who
has now been substituted as a defendant for Her
Majesty The Queen by virtue of the amendment
made at the commencement of the proceedings.
This amendment was made in accordance with the
4 R.S.C. 1970 (2nd Supp.), c. 10.
findings of my brother Addy J. in the case of `B"
v. The Commission of Inquiry' where he states at
pages 616-617:
Even without statutory authorization, declaratory judgments
are granted in respect of persons holding office under the
Crown in the right of Canada when exercising a power not
authorized by statute.
As authority for this statement he refers to the
case of Gruen Watch Company of Canada Limited
v. The Attorney General of Canada 6 in which the
then Chief Justice McRuer stated at page 445:
The Judicature Act, taken together with the common law
jurisdiction of the King's Courts of Justice, vests in me power
to make a declaratory order or judgment in a proper case
involving the rights of the subject with reference to the exercise
of power not authorized by statute which is assumed to be
exercised by those who hold office under the Crown in the right
of the Dominion.
Again at page 450 he stated:
This peculiar right of recourse to the Courts is a valuable
safeguard for the subject against any arbitrary attempts to
exercise administrative power not authorized by statute, and
judges ought not to be reluctant to exercise the discretion
vested in them where a declaration of the Court will afford
some protection to the subject against the invasion of his rights
by unlawful administrative action.
Mr. Justice Addy also refers to the case of Lan-
dreville v. The Queen' in which Pratte J. stated at
page 1230:
From this, I infer that the Court has the jurisdiction to make
a declaration which, though devoid of any legal effect, would,
from a practical point of view, serve some useful purpose.
On the subject of declaratory judgments reference
might also be made to the statement of Lord
Denning in the case of Barnard v. National Dock
Labour Boards at page 41 where he stated:
I know of no limit to the power of the court to grant a
declaration except such limit as it may in its discretion impose
upon itself; and the court should not, I think, tie its hands in
this matter of statutory tribunals. It is axiomatic that when a
statutory tribunal sits to administer justice, it must act in
accordance with the law. Parliament clearly so intended. If the
tribunal does not observe the law, what is to be done? The
remedy by certiorari is hedged round by limitations and may
not be available. Why then should not the court intervene by
declaration and injunction? If it cannot so intervene, it would
5 [1975] F.C. 602.
6 [1950] O.R. 429.
[1973] F.C. 1223.
e [1953] 2 Q.B. 18.
mean that the tribunal could disregard the law, which is a thing
no one can do in this country.
Moreover there is some authority for making a
declaratory judgment against an order in council.
In the case of Border Cities Press Club v. The
Attorney General for Ontario 9 Chief Justice
Pickup as he then was stated at page 19:
I agree with the learned judge in Weekly Court, for the
reasons stated by him, that the power conferred is conditional
upon sufficient cause being shown, and that without giving the
respondent an opportunity of being heard, or an opportunity to
show cause why the letters patent should not have jurisdiction
under the statute to make the order complained of. In exercis
ing the power referred to, the Lieutenant-Governor in council is
not, in my opinion, exercising a prerogative of the Crown, but a
power conferred by statute, and such a statutory power can be
validly exercised only by complying with statutory provisions
which are, by law, conditions precedent to the exercise of such
power.
The last sentence of this quotation is particularly
relevant in the present proceeding where the Gov
ernor in Council was exercising a power conferred
by statute rather than exercising a Crown
prerogative.
No right of review is available to the plaintiff
under the provisions of section 28 of the Federal
Court Act even if the decision to revoke the pardon
was one which should have been made on a judi
cial or quasi-judicial basis since subsection (6) of
section 28 reads as follows:
28. (6) Notwithstanding subsection (1), no proceeding shall
be taken thereunder in respect of a decision or order of the
Governor in Council, the Treasury Board, a superior court or
the Pension Appeals Board or in respect of a proceeding for a
service offence under the National Defence Act.
While defendants' counsel argued that it would be
incongruous to give the Trial Division the right to
grant declaratory relief under the provisions of
section 18 of the Act, which decision would be
subject to appeal to the Court of Appeal, when by
virtue of the provisions of section 28(6) the Court
of Appeal cannot review a decision or order of the
Governor in Council, it must be pointed out that
the two proceedings are quite distinct. Section 28
confers on the Court of Appeal a special type of
remedy against decisions or orders other than
9 [1955] O.R. 14.
those of a purely administrative nature made by
federal boards, commissions or other tribunals, if,
inter alia they fail to observe a principle of natural
justice. By subsection (6) this remedy cannot be
used against a decision or order of the Governor in
Council. Section 18 on the other hand gives the
Trial Division exclusive original jurisdiction over
various common law remedies which have always
existed including the right to grant declaratory
relief. If it had been intended to exclude such relief
against a decision or order of the Governor in
Council, a restriction similar to that found in
subsection (6) of section 28 should also have been
included in section 18 rather than merely relying
on the definition in section 2 to exclude such relief.
As plaintiff's counsel contends if no such relief was
available against an order in council by application
of the definition of federal board, commission or
other tribunal in section 2 then it was superfluous
to specifically exclude the remedy by way of
review by the inclusion of subsection (6) of
section 28.
The question of possible relief against an order
in council was also dealt with in the Privy Council
in the case of Wilson v. Esquimalt and Nanaimo
Railway Company ] ° in which Duff J. stated at
pages 211-12:
... their Lordships consider that the function of the Lieuten-
ant-Governor in Council in deciding upon such questions is
judicial in the sense that he must, to adapt the language of
Lord Moulton in Arlidge's Case [1915] A.C. 120, 150., "pre-
serve a judicial temper" and perform his duties "conscientious-
ly with a proper feeling of responsibility" in view of the fact
that a decision in favour of the applicant must result in the
transfer to the applicant of property to which, but for the
statute and but for the production of the necessary proof, the
respondent company (or its successors in title) would have
possessed an unassailable right; and it may be assumed for the
purposes of this appeal that a grant issued in consequence of a
decision arrived at through proceedings wanting in these char
acteristics would be impeachable by the respondent company
(or its successors), as issued without authority or in abuse of
the authority which the statute creates.
The order in council was upheld however, the
judgment going on to say at page 212:
10 [1922] 1 A.C. 202.
Whether or not the proof advanced was "reasonable proof'
was a question of fact for the designated tribunal, and the
decision by the Lieutenant-Governor in Council in the affirma
tive could not be questioned in any Court so long, at all events,
as it was not demonstrated that there was no "proof" before
him which, acting judicially, he could regard as reasonably
sufficient.
and again at page 214:
... the Lieutenant-Governor in Council was not bound to
govern himself by the rules of procedure regulating proceedings
in a Court of justice.
It cannot be suggested that he proceeded without any regard
to the rights of the respondents and the procedure followed
must be presumed, in the absence of some conclusive reason to
the contrary, to have been adopted in exercise of his discretion
under the statute as a proper mode of discharging the duty
entrusted to him. His decisions taken in the exercise of that
discretion are, in their Lordships' opinion, final and not review-
able in legal proceedings.
In the present proceedings therefore the Court
cannot and should not review the evidence with the
view of determining whether or not there was
"reasonable proof" before the Governor in Council
to justify the Order in Council revoking the
pardon, but must merely consider whether the
proper procedure was followed in conformity with
the statute.
While section 7 of the Criminal Records Act
(supra) gives no indication of the procedure to be
followed for the revocation of a pardon by the
Governor in Council but merely outlines the
grounds on which this revocation can be sought,
the wording of it clearly gives very wide discretion
to the Governor in Council. The evidence need
only be established to his satisfaction and the
phrase "no longer of good conduct" can be given a
very sweeping and all-embracing interpretation.
Information could presumably be obtained by the
Governor in Council in order to reach this conclu
sion from one or more sources. Evidence made
before the Cliche Commission Inquiry into Union
Freedom in the Construction Industry had been
very widely publicized in the media during the
hearings before that Commission, causing serious
prejudice to the reputations of many persons
named by the various witnesses. While the evi
dence in the record of this case does not show the
reasons for the Solicitor General of Canada
requesting the National Parole Board to make an
investigation respecting plaintiff André Desjardins
it is admitted that he did so as early as the autumn
of 1974, and, as stated previously the Governor in
Council certainly had access to the Commission
Report. The contents of this Report alone might
well have been sufficient to establish to the satis
faction of the Governor in Council that Desjardins
was no longer of good conduct. Since the matter
had already been referred to the Parole Board
however for investigation, the latter followed the
procedure used for revocation of parole. I can find
no fault with the decision to refer the matter to the
Parole Board for investigation and report in the
absence of any express provision in the Act as to
how the investigation should be made. As counsel
for plaintiff conceded the Governor in Council
could not himself conduct an investigation, consid
er evidence or hear representations from plaintiff.
This would have to be delegated to a Commission
er of some sort, who might be a lawyer appointed
for this purpose, but who could be better qualified
than members of the National Parole Board,
accustomed to this type of inquiry? In Ex parte
Sullivan (1941) 75 C.C.C. 70 it was found that
the Minister of Justice may be satisfied of the
necessity of making a detention under regulation
21 of the Defence of Canada Regulations (Con-
solidation) 1940 although he himself has made no
personal investigation but merely acted on the
recommendation of another person delegated to
investigate and recommend. That is precisely what
the Governor in Council did in this case. It has
been held by a majority decision of the Supreme
Court in the case of Howarth v. National Parole
Board" that an order of the National Parole
Board revoking parole is a decision entirely within
the discretion of the Board as an administrative
matter and thus was not subject to review under
section 28. This judgment followed the decision of
the Supreme Court in Ex parte McCaud 12 and the
majority judgment also referred to the case of
Calgary Power Limited v. Copithorne 13 . In that
judgment, Martland J. at page 30 referred to the
judgment of Lord Hewart C.J. in The King v.
11 [1976] 1 S.C.R. 453.
12 [1965] 1 C.C.C. 168.
13 [1959] S.C.R. 24.
Legislative Committee of the Church Assembly 14
in which he stated:
In order that a body may satisfy the required test it is not
enough that it should have legal authority to determine ques
tions affecting the rights of subjects; there must be super-added
to that characteristic the further characteristic that the body
has the duty to act judicially.
This passage was cited with approval by the
Judicial Committee of the Privy Council in Nak-
kuda Ali v. Jayaratne 15
In rendering the majority judgment in the
Howarth case however Pigeon J. was careful to
state at page 475 that he was expressing no opin
ion as to whether notwithstanding section 23 of the
Parole Act, some remedy before the Trial Division
of the Federal Court might not be open in a
similar case. 16
In the dissenting judgment in the Howarth case
reference was made to section 23, Dickson J.
stating at page 465:
The decisions of the Board are not subject to appeal or review
(s. 23). They are not investigatory or advisory. They are a final
determination with conclusive effect.
In the present case, on the contrary, the final
decision has to be made by the Governor in Coun
cil as to whether or not the pardon should be
revoked so that whatever recommendation was
made by the Parole Board was not a "final deter
mination with conclusive effect". Justice Dickson
in his dissent also made reference to the fact that
since the McCaud case, section 16(4) of the
14 [1928] 1 K.B. 411 at 415.
1, [1951] A.C. 66.
16 Section 23 of the Parole Act, R.S.C. 1970, c. P-2 reads:
23. An order, warrant or decision made or issued under
this Act is not subject to appeal or review to or by any court
or other authority.
Parole Act has been amended, so that the Board is
now required to cause to be conducted all such
inquiries as it considers necessary upon referral to
it of the case of a paroled inmate whose parole has
been suspended and a decision to cancel the sus
pension or revoke the parole is not made until
completion of such inquiries and the Board's
review so that there is therefore an obligation to
reach a decision which he finds to be of a judicial
or quasi-judicial nature.
The distinction between the manner in which
the Parole Board was acting in the present case as
an investigative body mandated to do so by the
Solicitor General of Canada and the way in which
it is required to act in considering the revocation of
a parole appears from a statement by the late S.A.
de Smith in Judicial Review of Administrative
Action, 3rd ed. (1973) at page 68 which is quoted
at page 465 of the dissenting judgment in the
Howarth case to the effect that "a body exercising
powers which are of a merely advisory, delibera-
tive, investigatory, or conciliatory character or
which do not have legal effect until confirmed by
another body, or involve only the making of a
preliminary decision, will not normally be held to
be acting in a judicial capacity".
In the case of Guay v. Lafleur" an officer of the
Department of National Revenue was authorized
by the Deputy Minister to make an inquiry into
the affairs of respondent and others and witnesses
were summoned and questioned under oath but the
respondent was not summoned nor did he receive
any official notice that the inquiry was being held.
At the opening of the inquiry attorneys appeared
on his behalf and asked that he be allowed to be
present and to be represented by counsel during
the examination of all persons summoned by the
investigator, which request was refused. An
injunction was obtained but this was set aside by
the Supreme Court. In rendering the judgment,
Cartwright J. stated at pages 17-18:
17 [1965] S.C.R. 12.
There are, of course, many administrative bodies which are
bound by the maxim "audi alteram partem" but the condition
of their being so bound is that they have power to give a
decision which affects the rights of, or imposes liabilities upon,
others.
It was of a body having such power that Lord Loreburn L.C.
said in Board of Education v. Rice [1911] A.C. 179 at 182
I need not add that ... they must act in good faith and
fairly listen to both sides, for that is a duty lying upon
everyone who decides anything.
The appellant in the case at bar has no power to decide
anything.
and again at page 18:
Generally speaking, apart from some statutory provision
making it applicable, the maxim "audi alteram partem" does
not apply to an administrative officer whose function is simply
to collect information and make a report and who has no power
either to impose a liability or to give a decision affecting the
rights of parties.
This judgment was referred to and distinguished
in the recent case of Saulnier v. Quebec Police
Commission" in which Pigeon J. in rendering the
judgment of the Court stated at page 578:
With respect, I must say that the function of the Commission
is definitely not that of the investigator concerned in Guay v.
Lafleur. That investigator was charged only with collecting
information and evidence. The Minister of National Revenue
could then unquestionably make use of the documentary evi
dence collected, but not of the investigator's conclusions. It is
for this reason that it was held the investigator could refuse to
allow the taxpayer concerned to be present or be represented by
counsel at the kind of investigation provided for by the Income
Tax Act.
He goes on to call attention to section 24 of the
Police Act under which the inquiry in the Saulnier
case was made which requires that no punitive
action shall be taken unless the Commission has
heard the party being investigated on the facts
giving rise to the proposed censure or recommen
dation, unless, after having been invited to appear
before the Commission within a reasonable delay,
he has refused or neglected to do so. He refers
with approval at pages 578-579 to the dissenting
opinion of Casey J.A. in the Quebec Court of
Appeal in which in distinguishing the Guay v.
Lafleur case he stated with reference to the case
before him:
18 [1976] 1 S.C.R. 572.
Appellant has rendered a decision that may well impair if not
destroy Respondent's reputation and future. When I read the
first and fourth considerants and the conclusions of the sixth
recommendation and when I recall that the whole purpose of
these reports is to present facts and recommendations on which
normally the Minister will act the argument that no rights have
been determined and that nothing has been decided is pure
sophistry.
It can certainly be argued that in the present case
the recommendation of the Parole Board with
respect to the revocation of the pardon which was
transmitted to the Solicitor General who in turn
forwarded same to the Governor in Council, using
the exact same words as the National Parole
Board apparently did in recommending the revoca
tion, would undoubtedly be adopted by the Gover
nor in Council and that it is therefore perhaps
sophistry to suggest that since the Parole Board
was not making any decision but merely investi
gating the facts it was not obliged to act in a
judicial or quasi-judicial manner.
The problem of reconciling this somewhat dif
ficult jurisprudence has been dealt with at some
length in the judgment of my brother Addy J. in
the case of "B" v. Commission of Inquiry [1975]
F.C. 602 (supra) when he states at pages 611-12,
commenting on the Saulnier judgment (supra)—
The matter was decided in favour of the appellant on the sole
ground that the Commission was exercising a judicial or quasi-
judicial function because it was charged with making an inves
tigation report which "may have important effects on the rights
of persons dealt with in it" and because it was one which
"impaired" the rights of the appellant.
This decision has caused me great concern, following as it
does within four months of the Howarth decision (supra) of the
same Court and having regard to what appears to be the ratio
decidendi in the Howarth decision which in turn followed the
Calgary Power case (supra) and the other cases to which I
have referred, which were decided by that same Court. I
inquired of all of the counsel at the hearing whether any of
them could reconcile the ratio decidendi in the Saulnier case
with that of the Howarth case and the other cases which the
Howarth case followed and no satisfactory solution could be
suggested.
Although, as stated by Pigeon J. in the Saulnier case, even
though the Commission was reporting to the Minister who,
strictly speaking, still had the legal right to implement or to
refuse to implement the recommendations, and although from a
practical standpoint, it must almost be taken for granted that
he would follow the recommendation of the Commission which
he had set up, yet, it must be remembered that in the Howarth
case there was no other authority whatsoever capable of dealing
with the question of revocation of parole and that the decision
was final from every standpoint and did not constitute merely a
report to a higher authority. Again in the Howarth case, the
Board was dealing with the liberty of the subject while in the
Saulnier case it was concerned with conditions of his employ
ment and his possible demotion.
No previous decision was referred to in the Saulnier case
except the case of Guay v. Lafleur (supra) which is distin
guished on the basis that the rights of the taxpayer were held to
not even be affected by the assessment. Since the Howarth case
which, as stated before, has followed several previous decisions
of the Supreme Court of Canada was in no way mentioned in
the Saulnier case, I cannot conclude that in the Saulnier case
the Court intended to change the law or reverse its view of the
law as expressed by its majority judgment in the former case.
Nor can I subscribe either to the view of counsel for the
applicant that the Saulnier case can be construed as authority
for the proposition that the mere fact that a person is given the
statutory right to be heard by a board or a commission makes
that proceeding a judicial or quasi-judicial one. The Saulnier
case does not purport to establish this principle. In this respect,
I draw considerable comfort from the decision of my brother
Collier J. in the case of Grauer Estate v. The Queen [1973]
F.C. 355, where he held that, in hearings under section 18 of
the Expropriation Act, R.S.C. 1970, (1st Supp.) c. 16 as to the
necessity for the expropriation, where specific provision is made
for the parties to be heard those hearings are still purely
administrative proceedings since the hearings result merely in a
report being made and since the presiding officer has no power
to make a decision.
Mr. Justice Addy in addition to discussing the
findings in the Howarth, Calgary Power, and
Guay v. Lafleur cases also refers to two other
Supreme Court judgments at pages 609-610 of his
judgment stating as follows:
In St. John v. The Vancouver Stock and Bond Company
Limited [1935] S.C.R. 441 an investigation was held under the
Securities Fraud Prevention Act of British Columbia to deter
mine whether a fraudulent act or an offence against the Act
had been committed, and it was held that such an investigation
was not a judicial or quasi-judicial proceeding in any sense and
that the mere fact that a person's rights might be affected, as
opposed to being determined, is not sufficient to make that
proceeding a judicial or quasi-judicial one.
The case of Godson v. City of Toronto (1891) 18 S.C.R. 36
pertains to an inquiry by a judge as persona designata under a
resolution of a municipal council passed pursuant to the provi
sions of the Municipal Act, where an investigation was carried
out as to whether there had been fraud or misconduct, or
misfeasance or breach of trust on the part of any person having
a contract with the municipality. The Act provided that the
Judge would have the powers of a commissioner under a Public
Inquiries Act and was under the duty to report. The judgment
of the Court of Appeal of Ontario was upheld by the Supreme
Court of Canada and it was held that in no sense did this
constitute a judicial proceeding, as the object was to obtain
information for the council as to the conduct of their members,
officers and contractors and upon this report the council might,
in their discretion, take action.
He found that in the case before him the Commis
sioner was merely exercising an administrative
function and in fact concluded that the jurisdiction
of the Trial Division under section 18 to make a
declaratory order could only arise in such a case.
At page 619 he states:
In the case of a declaratory order, since a board or commis
sion, exercising judicial or quasi-judicial powers, was never
subject to court action or to equitable remedies or processes,
and since the required relief against any such body is available
by prohibition or by judicial review by the Court of Appeal
under section 28, I cannot envisage section 18 as creating a new
remedy by way of declaratory order in such case. Declaratory
judgments are not available in the case of decisions or actions
of any such body. However, since some meaning must be given
to the words, they must therefore be taken to grant jurisdiction
in the case of a federal board, etc., exercising non-judicial
functions.
The difficulty in the present case is threefold in
the light of the foregoing jurisprudence.
1. There is no direction in the statute that plaintiff
should be heard in connection with an inquiry into
the revocation of his pardon since in fact no proce
dure whatsoever is set forth in the statute indicat
ing how an investigation is to be made in order for
the Governor in Council to conclude that the
pardon should be revoked.
2. The recommendation of the Parole Board or
more specifically the Commissioners making the
investigation cannot determine the issue which has
to be dealt with by the Governor in Council;
however it must be said that from the practical
point of view it is highly probable that the recom
mendation will be adopted.
3. If it is concluded that the investigation has to
be made in a judicial or quasi-judicial manner,
then there is some doubt as to whether the Trial
Division has jurisdiction under section 18 to enter
tain this declaratory action.
Although it has been held in several of the
aforementioned cases that the mere fact that the
rights of a party will be affected by the decision
does not necessarily mean that it must be made in
a judicial or quasi-judicial manner, I am inclined
to the view that the decision arrived at in the
present case to revoke the pardon was not one
which should have been arrived at without comply
ing with the rules of natural justice including the
right of plaintiff to be heard and to make represen
tations. In so concluding, however, I am not
unmindful of the finding in the case of Wilson v.
Esquimalt and Nanaimo Railway Company
(supra) that the Court cannot question what was
considered by the Governor in Council to consti
tute reasonable proof and also that the Governor
in Council is not bound to govern himself by rules
of procedure regulating proceedings in the courts
of justice and that the procedure followed must be
presumed in the absence of some conclusive reason
to the contrary to have been adopted in the exer
cise of his discretion under the statute as a proper
mode of discharging the duty entrusted to him.
This brings us to the conclusion to be decided,
namely, whether as a matter of fact the nature of
the inquiry and the manner in which it was con
ducted failed to give due effect to the audi alteram
partem maxim and to comply with rules of natural
justice. In this connection plaintiff first alleged
bias on the part of the Commissioners making the
inquiry. This contention arose from the somewhat
unfortunate wording of the second paragraph of
the letter of May 21st, 1975, to Mr. Desjardins
calling on him to appear and advising him that he
or his legal advisor would have the right to make
all representations deemed advisable before the
Commission. This second paragraph read—
[TRANSLATION] In conformity with section 7 of the law the
Commission presently proposes to recommend to the Solicitor
General of Canada the revocation of the pardon granted you.
It was contended that this indicated that they had
already made up their mind and reference is made
to the case of Cathcart v. The Public Service
Commission 19 in which it was held that where a
quasi-judicial body has read and become familiar
with one side of an issue upon which it is required
to adjudicate there is danger that the Board's
ability to act impartially at the subsequent hearing
has been impaired. Without disagreeing with this
19 [1975] F.C. 407.
judgment I must seriously doubt whether it is
applicable to the facts of the present case. Certain
ly in applying section 4(4) of the Act when grant
ing a pardon the Commission completes its in
quiries without any reference to the party being
investigated and it is only if it proposes to make an
adverse recommendation that he is then given the
opportunity to make representations. The Board,
in the absence of other guidance from the Act as
to the proper procedure to be followed when it was
called upon to investigate the possible cancellation
of the pardon can hardly be blamed for following
the same procedure of first examining the material
before it. While it might have been preferable had
the second paragraph of the letter to Mr. Desjar-
dins merely indicated that the Commission was
considering whether it should recommend the
revocation to the Solicitor General and invited him
to make his representations, rather than indicating
that it was proposing to make such a recommenda
tion which converted the letter to him to a sort of
"show cause" notification shifting the burden of
establishing that he was still of good conduct to
him, I am not prepared to conclude that this was
sufficient to prevent them from completing their
inquiry and making their recommendation espe
cially as this was only a recommendation in any
event and not a final decision by them. I now turn
to the question of whether the audi alteram
partem rule was complied with in their conduct of
the proceedings. It is not denied that plaintiff was
given every opportunity to make representations
and be heard on two occasions and on advice of his
counsel made no statement, the contention being
that before making a statement he had to know the
exact nature of the evidence which the Commis
sioners had against him on which they proposed to
rely in making their recommendation. Possibly one
of the best expressions of the audi alteram partem
is found in the case of Kanda v. Government of the
Federation of Malaya 20 in which it was stated at
page 337:
If the right to be heard is to be a real right which is worth
anything, it must carry with it a right in the accused man to
know the case which is made against him. He must know what
evidence has been given and what statements have been made
affecting him: and then he must be given a fair opportunity to
correct or contradict them.
20 [1962] A.C. 322.
Another statement was made in the case of
Confederation Broadcasting Limited v. Canadian
Radio-Television Commission 2 ' in which Spence
J. stated at page 925:
It is quite plain that the requirements of natural justice
demand that a person have full and complete notice of the
charges against him and an opportunity to reply thereto.
In the case of Teasdale v. Liquor Permit Control
Commission 22 Jacques Dugas J. stated at page
323:
[TRANSLATION] One does not give an individual the occasion
to have himself heard if he is not informed as to what it is in his
interest to have himself heard about. How can he prepare
himself adequately for a hearing if he does not know what he
must face.
In the case of Lazarov v. Secretary of State of
Canada 23 at pages 940-41 Thurlow J. states:
That is not to say that a confidential report or its contents need
be disclosed to him but the pertinent allegations which if
undenied or unresolved would lead to rejection of his applica
tion must, as I see it, be made known to him to respond to them
and he must have a fair opportunity to dispute or explain them.
In the case of Komo Construction Inc. v. Quebec
Labour Relations Board 24 Pigeon J. states at page
175—
[TRANSLATION] Insofar as the application of the rule audi
alteram partem is concerned it must be noted that it does not
imply that he must always be granted a hearing. The obligation
is to furnish to the party the occasion to make his contentions
known. In the present case in the face of a contestation which
raises only a question of law the Commission did not abuse its
discretion in deciding that it had no need to hear anything
further before rendering its decision.
A careful examination of these cases indicates
that a party must always be given an opportunity
to be heard unless natural justice is to be denied to
him, and, while normally in order to make ade
quate representations he must know what the
charges against him are, this need not be the case
if he already is fully aware of what he is accused
of. In the present case it cannot be doubted that
plaintiff Desjardins was fully aware of all the
evidence which had been presented before the
Cliche Commission relating to his conduct and
21 [1971] S.C.R. 906.
22 [1974] S.C. 319.
23 [1973] F.C. 927.
24 [1968] S.C.R. 172.
which led to the Report of the Commission which
evidently made allegations against him of so seri
ous a nature that the Attorney General of Quebec
sought to have his pardon revoked. Steps leading
to this had already been undertaken by the Solici
tor General of Canada many months previously,
possibly as a result of the revelations made during
the hearings before the Cliche Commission,
although the record does not specifically disclose
this. In any event a copy of the Report was
undoubtedly in his possession or in possession of
his attorney and would have been examined and
studied by them so that he was fully aware of what
he was being charged with on which the Commis
sioners of the Parole Board proposed to make their
recommendation that he was no longer of good
conduct. There is no reason whatsoever to assume
that they had, or required any further evidence
against him other than what could be found in the
Report. While the contents of the Report are not
in the record of this case, nor would the Court in
any event be entitled to make a finding as to
whether they were sufficient to justify the conclu
sion arrived at by the Governor in Council that
plaintiff was no longer of good conduct, it is
specious on plaintiff's part to state that he did not
know what the charges were against him and
therefore could not reply to them. While in the one
hand I fail to see why the Commissioners persist
ently refused, apparently as a matter of principle,
and in accordance with their practice in consider
ing applications for parole or for the revocation
thereof, to disclose to him what evidence they had
against him, when they merely had to mention the
Cliche Report, which alone might well have been
sufficient, plaintiff has no one but himself to
blame if he refused to make any representations on
his own behalf when given ample opportunity to do
so. Whether or not these representations would
have resulted in a different recommendation by
the Commissioners or the Parole Board is not an
issue which is before me, but I cannot find that he
was not given a full opportunity to be heard.
Therefore, I must conclude that, even if the pro
ceedings were of a judicial or quasi-judicial nature
and had to be conducted in accordance with the
rules of natural justice, these rules were substan
tially complied with and plaintiff's action is there
fore dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.