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[1977] 2 F.C. 726, 75 D.L.R. (3d)
380, 1977 CarswellNat 70 Landreville v. R. (No. 2) Léo A. Landreville (Plaintiff) v.
The Queen (Defendant) Federal Court of Canada — Trial
Division SUBSEQUENT HISTORY: Not Followed in: Prince v. New Brunswick (Commissioner, Inquiries Act), 180 N.B.R. (2d) 81, 1996 CarswellNB 374, 458 A.P.R. 81 (N.B. Q.B. May 21, 1996) JUDGE: Collier J. Ottawa: February 2, 1977 Ottawa: February 3, 1977 Ottawa: April 7, 1977 Docket: T-2205-72 COUNSEL: G. Henderson, Q.C., and Y.A.G. Hynna for plaintiff. G. Ainslie, Q.C., and L. Holland for defendant. SUBJECT: Civil Practice and Procedure Judges and Courts — Appointment, removal and disqualification
of judges — Removal. Judges and Courts — Contempt of Court — Jurisdiction over
contempt — Other Courts and tribunals. Limitation of Actions — Laches and acquiescence. Jurisdiction — Royal Commission inquiry into activities of
plaintiff, a former superior court judge — Whether appointment of Commissioner
to investigate a judge is ultra vires the Governor in Council — Whether
Commissioner exceeded jurisdiction — Whether plaintiff given opportunity to be
heard re allegations of misconduct — Inquiries Act, R.S.C. 1952, c. 154, ss.
2, 3, 13 — The British North America Act, 1867, ss. 92(14), 96, 99(1) —
Judges Act, R.S.C. 1952, c. 159, ss. 31, 33; R.S.C. 1970, c. J-1, ss. 31,
32, 32.2. The plaintiff, a Judge of the Supreme Court of Ontario from
1956 to 1967, was the subject, in 1966, of a Royal Commission inquiry into his
relationship with Northern Ontario Natural Gas Limited. In 1967 the
Commissioner rendered an unfavourable Report, and the plaintiff resigned. He
brought an action for a declaration (1) that the appointment of the
Commissioner was null and void, (2) that the Commissioner lost jurisdiction by
exceeding his terms of reference, and (3) that the plaintiff was not given
notice or an opportunity to be heard concerning allegations of misconduct, as
required by section 13 of the Inquiries Act. With respect to the first issue
the defendant submitted that the Commission was validly constituted, that the
plaintiff had consented to it and could not now challenge it, and that plaintiff
did not challenge the appointment of the Commissioner or his jurisdiction at
the inquiry itself. With respect to the third issue defendant maintained that
the allegations or charges were set out in the Order in Council and Letters
Patent establishing the Royal Commission. In addition, the defendant (4) put
forth the equitable defence of laches, and (5) challenged the jurisdiction of
the Court to make a declaration on the ground that the matter is now academic. Held, the plaintiff will have a declaration limited to the
section 13 issue, with costs. (1) The procedure for removal of judges by joint address of
the House of Commons and the Senate, as set out in section 99 of The British
North America Act, 1867, is not, as plaintiff contends, a code of its own. The
Governor in Council, as distinguished from the Governor General or Parliament,
can authorize an inquiry into the conduct of a superior court judge. The
conduct of judges is a “… matter connected with the good government of
Canada …” (section 2 of the Inquiries Act). However, if there was no
constitutional power in the Governor in Council to initiate the inquiry, then
the plaintiff’s consent or request for it, and the agreement not to object to
it, could not cure the defect. (2) The terms of reference of the Commission were wide
enough to embrace the portions of the Report and the conclusions attacked by
plaintiff. The plaintiff’s credibility was in issue, and the Commissioner’s
method of dealing with the question did not amount to going beyond the terms of
reference and so losing jurisdiction. (3) Section 13 of the Inquiries Act requires that a person
against whom a charge of misconduct is alleged be given reasonable notice of,
and an opportunity to reply to, such allegation. The Commissioner found that
the plaintiff had been guilty of gross contempt before three other tribunals.
This matter was not within the terms of reference of the Commission and the
plaintiff was not given an opportunity to meet the specific charges. The
Commissioner thus failed to comply with the mandatory requirements of section
13. The Commission should have been reconvened, and notice of the
“charge” of misconduct given; the plaintiff should then have been
allowed to call witnesses and answer the charges. (4) There is no compelling or equitable reason to invoke the
defence of laches. The defendant has not been induced to alter any position. (5) Although the declaration will have no legal effect it
may serve some practical purpose in other pending litigation involving the
plaintiff, and in that it will be a matter of public record that the plaintiff
did not have a full opportunity to be heard. Crabbe v. Minister of Transport, [1972] F.C. 863, applied.
Landreville v. The Queen, [1973] F.C. 1223 and Merricks v. Nott-Bower, [1964] 1
All E.R. 717, followed. Action for declaratory judgment. The following are the reasons for judgment rendered in
English by Collier J.: 1
The plaintiff is a solicitor now practising in Ottawa. In 1933 he went
to Sudbury, Ontario. He eventually established a substantial law practice. Over
a number of years he held, while still carrying on his legal business, public
offices in the Sudbury area, “… such as School Trustee, Alderman, Member
and Chairman of the Sudbury Hydro Commission.” He became mayor of Sudbury
on January 1, 1955. 2
While he was mayor, the Sudbury council approved a franchise to Northern
Ontario Natural Gas Limited (“NONG”), to distribute natural gas to
Sudbury by laterals and distributing pipe systems. The main system or trunk
line was that of TransCanada PipeLine Company. 3
On September 13, 1956 he was appointed a Judge of the Supreme Court of
Ontario[FN1] . His appointment was effective October 10, 1956. On October 12,
he was sworn in. 4
In February of 1957 the plaintiff was sent a letter from a Vancouver
brokerage company enclosing shares of NONG. I shall later set out more detail.
I merely refer, at this point, to NONG shares in order to make clear what the
plaintiff seeks in this action. 5
On January 19, 1966, the Governor in Council appointed the Honourable
Ivan C. Rand, a retired Judge of the Supreme Court of Canada, a Commissioner
under Part I of the Inquiries Act[FN2] . His terms of reference were: (a) to inquire into the dealings of the Honourable Mr.
Justice Leo A. Landreville with Northern Ontario Natural Gas Limited or any of
its officers, employees or representatives, or in the shares of the said
Company; and, (b) to advise whether, in the opinion of the Commissioner, (i) anything done by Mr. Justice Landreville in the course
of such dealings constituted misbehaviour in his official capacity as a Judge
of the Supreme Court of Ontario, or (ii) whether the Honourable Mr. Justice Landreville has by
such dealings proved himself unfit for the proper exercise of his judicial
duties.[FN3] 6
After 11 days of hearings at various Canadian cities in March and April,
1966, the Commissioner issued a report. It was dated August 11, 1966. It was
not made public until tabled in the House of Commons on August 29 of that year. 7
A special Joint Committee of the Senate and House of Commons was
appointed in late 1966. Its purpose was: …to enquire into and report upon the expediency of
presenting an address to His Excellency praying for the removal of Mr. Justice
Leo Landreville from the Supreme Court of Ontario, in view of the facts,
considerations and conclusions contained in the report of the Honourable Ivan
C. Rand…. 8 The Committee held 19
meetings in February and March of 1967. The plaintiff appeared as a witness. He
testified at 11 of the meetings. 9
The material portions of the Joint Committee’s final report, dated April
13, 1967, were: 2. In accordance with its terms of reference, during the
course of nineteen (19) meetings, the Committee applied itself to, and
carefully examined the facts, considerations and conclusions contained in the
said report. 3. The Committee invited Mr. Justice Landreville to appear
before it as a witness. He testified at eleven (11) meetings of the Committee
and answered questions from Members of and Counsel to the Committee. 4. The report of the Honourable Ivan C. Rand states: No question is raised of misbehaviour in the discharge of
judicial duty; the inquiry goes to conduct outside that function. 5. The reflections of the Honourable Ivan C. Rand on Mr.
Justice Landreville’s character were not considered pertinent and thus played
no part in the Committee’s decision. 6. After hearing the testimony of Mr. Justice Landreville
and considering the report of the Honourable Ivan C. Rand, the Committee finds
that Mr. Justice Landreville has proven himself unfit for the proper exercise
of his judicial functions and, with great regret, recommends the expediency of
presenting an address to His Excellency for the removal of Mr. Justice
Landreville from the Supreme Court of Ontario. 10
By letter dated June 7, 1967, (Ex. 35), the plaintiff tendered,
effective June 30, his resignation as a Judge. It was accepted. 11
This suit is an attack against the validity of the appointment of the
Commissioner to hold the inquiry of 1966, the manner in which certain aspects
of the inquiry were carried out, and against the report itself. 12
The remedies sought are as follows: (a) A Declaration that the appointment of the said
Commissioner was not authorized by the Inquiries Act and that consequently the
said Report is null and void; (b) A Declaration that, if the said Commissioner was validly
appointed to hold an Inquiry and make a Report, which the Plaintiff denies, the
said Report made by the Commissioner on August 11, 1966, should be removed into
this Court to be quashed by reason of the matters set out in paragraph 7 of
this Declaration; (c) That a Writ of Certiorari be issued removing into this
Court the said Report and all records, proceedings, papers and transcripts of
evidence relating to the said Inquiry and to quash the said Report; 13
Three questions of law were argued some time before trial.[FN4] The
questions came on before Pratte J. In respect of the relief claimed in
paragraph (b) of the declaration, he assumed [at page 1226]: …that in subparagraph (b) the plaintiff claims a
declaration that the Commissioner, for the reasons set out in paragraph 7 of
the Declaration, conducted his inquiry irregularly and that his report should
be quashed. 14
The questions of law submitted were: 1. Whether this Honourable Court has jurisdiction to issue a
Writ of Certiorari against Her Majesty the Queen; 2. Whether this Honourable
Court has jurisdiction to quash the report of the Royal Commission appointed by
letters patent bearing date the 2nd day of March, 1966; 3. Whether this
Honourable Court has jurisdiction to grant a declaration in the circumstances
alleged in the Statement of Claim herein; 15
In respect of the first question, the formal ruling was: 1. That it is not expedient to give an answer to the first
question since, even if the action
were not brought against Her Majesty, certiorari would not lie in this case. The second question was answered “No” and the
third “Yes”. Reasons were given. In dealing with the third question,
Pratte J. said [at page 1228]: The plaintiff, according to my interpretation of his
Declaration, seeks two declarations: first, that the appointment of the
Commissioner was ultra vires and, second, that the Commissioner did not conduct
the inquiry as he should. He went on [at page 1229]: These contradictory submissions can be briefly summarized.
Counsel for the defendant argued that the declarations sought could not be made
because they would not have any legal effect. Counsel for the plaintiff
contended that these declara tions could be made because they would, from a
purely practical point of view, be beneficial to the plaintiff. The question to be answered is therefore whether this Court
has jurisdiction to make a declaration on a legal issue in a case where the
declaration would be devoid of legal effects but would likely have some
practical effects…. He answered the question affirmatively, adopting the
reasoning of the English Court of Appeal in Merricks v. Nott-Bower[FN5] , and
holding [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. 16
At the trial, Mr. Henderson for the plaintiff, put forward three main
submissions: 1. The Commission was not validly constituted. The only
procedure to be followed is set out in s. 99 of the British North America Act.
2. If the Commission was indeed validly constituted, the Commissioner lost
jurisdiction by exceeding the terms of reference. 3. Again, assuming the
legality of the Commission, the Commissioner did not comply with the
requirements of s. 13 of the Inquiries Act. 17
In order to deal with these contentions and the submissions on behalf of
the defendant, it is necessary to recount the background and facts leading to
the appointment of the Commissioner. 18
In 1958 the Ontario Securities Commission directed an investigation into
the trading in shares of NONG from its incorporation to the date when its units
(one debenture and one common share) were qualified for sale in Ontario, June
4, 1957. A report was issued on August 18, 1958. At that time certain information
available in British Columbia had not come to light. For that reason, neither
the plaintiff nor any involvement by him in shares of NONG was investigated. In
1962, on the basis of certain information supplied by the Attorney General for
British Columbia another investigation, or perhaps a further investigation, was
directed. 19
It appeared that 14,000 shares of NONG had been, on January 17, 1957,
allotted to Convesto, a nominee name used by Continental Investment Corporation
Limited (brokers) of Vancouver. An investigation in British Columbia revealed
that 4,000 of those shares had then been transmitted to J. Stewart Smith, the
former British Columbia superintendent of brokers and 10,000 to the plaintiff. 20
Ralph K. Farris was at all relevant times the President of NONG. He gave
evidence before the Ontario Securities Commission both in 1958 and 1962. The
plaintiff gave evidence in 1962 as to how he had acquired the 10,000 shares in
NONG. 21
A perjury charge was laid against Ralph K. Farris. It arose out of the
testimony, in respect of the Convesto share transaction, he had given the
Securities Commission. His preliminary hearing was in the latter part of 1963
and the early part of 1964. The plaintiff gave evidence. 22
Farris was committed for trial. The trial was before a Supreme Court
Judge and jury in 1964. Once more, the plaintiff was called as a witness and
gave evidence in respect of the share transactions referred to. Farris was
convicted. 23
On June 12, 1964 the plaintiff wrote the Honourable Guy Favreau, the
Minister of Justice for Canada. He pointed out that since 1962 there had been
insinuations in the Ontario Legislature that NONG and he “…have been
guilty of corrupt practices.” He requested an inquiry should take place at
his own request; that a special commissioner be appointed; and: The terms of reference would be broad but simple: whether or
not there has been any conflict of interest, bribery, undue influence or any
corrupt practices in the award of the Sudbury Gas Franchise. He added that the only alternative to his request would be
the Ontario Attorney General laying some charge against him “…to provide
me with similar opportunity” [to prove his innocence]. 24
The Minister of Justice indicated he would study the matter. 25
Before his request was further dealt with, the Attorney General for
Ontario, in August, 1964, laid charges against the plaintiff. In essence, the
accusation was that while he was mayor of Sudbury, he offered or agreed to
accept stock in NONG in return for his influence in seeing that NONG obtained a
franchise agreement in Sudbury. There was also a charge of conspiracy, to the
same effect, with Farris. Similar charges, in respect of granting of
franchises, were laid against the mayors of Orillia, Gravenhurst and
Bracebridge. 26
The plaintiff’s preliminary hearing was in September or October of 1964,
presided over by Magistrate Albert Marck. The Magistrate discharged the
accused, expressing the view a properly charged jury could not find him guilty.
Two of the other mayors were discharged on their preliminary hearings; the
third was committed for trial, but acquitted by a county court jury. 27
The Attorney General for Ontario, shortly after, issued a press release
in which it was stated[FN6] : The Attorney General today announced that he will not prefer
a Bill of Indictment before a Grand Jury in respect of Mr. Justice Landreville.
In so far as the Department of the Attorney General is concerned, the matter of
the prosecution of Mr. Justice Landreville is concluded. 28
The next event, in the evidence before me, was a report by a special
committee of The Law Society of Upper Canada. The Society, in January of 1965,
had struck a special committee to consider and report on what action, if any,
should be taken by it “…as a result of Mr. Justice Landreville’s
decision to continue to sit as a Judge of the Supreme Court of Ontario”.
The report of the special committee was made on March 17, 1965. It was adopted
by Convocation, with one dissent, on April 23, 1965. The report contained what
was termed a “statement of facts” and certain “conclusions”
on those facts. One was “…there is no doubt that the Magistrate was
correct in dismissing the charges against Landreville”. 29
The report went on to set out certain “…matters which are
unexplained, and upon which your committee can only speculate”. Following
those speculations the committee
stated, “…the following inference … can be drawn from the foregoing
questions which remain unanswered … [the speculative matters]”: YOUR COMMITTEE REPORTS THE FOLLOWING INFERENCE THAT CAN BE
DRAWN FROM THE FOREGOING QUESTIONS WHICH REMAIN UNANSWERED: The fact that Landreville was given an opportunity to
acquire shares at the same price as the original promoters of the Company and
that the option was given immediately following the passing of the third
reading of the by-law and for no apparent consideration, and that subsequently
without any exercise of such option by Landreville he received 7500 shares free
and clear, which he subsequently sold for $117,000, and that when Farris was
first questioned about the matter he deliberately lied, support the inference
that the acquisition of shares by Landreville was tainted with impropriety. The report went on: THE FOLLOWING ARE THE OPINIONS AND RECOMMENDATIONS OF YOUR
COMMITTEE: The above recited facts are matters of public knowledge and
are, in the opinion of your Committee, inconsistent with the reputation for
probity required of one of Her
Majesty’s Judges for the due administration of justice in this Province. As a consequence of these facts, the questions unanswered,
and the inference which your Committee has drawn and which it believes the
public has also drawn, YOUR COMMITTEE RECOMMENDS — 1. That the Benchers of The Law Society of Upper Canada in
Convocation deplore the continuance of the Honourable Mr. Justice Landreville
as one of Her Majesty’s Judges of the Supreme Court of Ontario. 30
On the evidence before me, the plaintiff knew absolutely nothing of this
special committee and its activities. He was never invited to appear before
them to answer their unexplained matters or speculations. A copy of the report
was sent to the Federal Minister of Justice,[FN7] and to the plaintiff. 31
I think I ought to say, at this point, that I characterize the action
and report of the Society as puzzling, and, in retrospect, probably
unwarranted. 32
Although the evidence before me is unclear, the contents of the report
were not made public at that time. The Commissioner annexed it as
“Appendix A” to his
report.[FN8] 33
On April 30, 1965, the plaintiff wrote to the Minister of Justice in
connection with this report. Some question had apparently been raised about it
in the House of Commons. He wrote also the Secretary of the Law Society. He
complained the special committee had not seen fit to call on him to answer any
of the questions it had raised. He pointed out he had, during the three
previous years, made repeated requests to provincial and federal authorities
“…to have the matter fully aired”. 34
I should digress at this stage to say that the plaintiff had, when the
criminal charges where laid against him, retained a well known counsel, Mr.
John J. Robinette, Q.C. Mr. Robinette was a bencher. He had taken no part in
the investigation and report of the Law Society. As I understand the evidence,
the plaintiff was still, at this stage, receiving advice from Mr. Robinette. 35
On May 7, 1965, the plaintiff telegraphed the Minister of Justice
withdrawing his previous request for an inquiry. He asked Mr. Favreau to make
no decision on a course of action until the Minister had read his (the
plaintiff’s) report. 36
On May 13, 1965, he wrote the Minister. He commented on the Law Society
report. He went on to say: Am I being attacked as a Judge? If so, of what unbecoming
conduct? What am I accused of specifically? I have no intention of dealing with
the facts. As you are well aware, I have on more than one occasion and
particularly immediately after my acquittal requested that a Public Enquiry be
held to vindicate my name on all possible grounds. I attach a copy of your
letter and a news item. I strongly feel I have done all possible including
keeping dignified silence in the face of unfounded gossip. I now withdraw from
that position for the following reasons: (a) The subject matter was deemed closed six months ago. I
have returned to my functions. The Bar and the Public have shown usual courtesy
and co-operation. (b) An Enquiry would re-open, deal with and review facts
which are strictly res judicata. The Attorney General has made such review and
closed his files. (c) The Report of the Law Society, making as it does
unfounded findings, prejudices me and is defamatory. (d) Regardless of the most favourable decision, an Enquiry
and proceedings with pertaining publicity, would be conclusively detrimental
and final to my reputation. (e) I am advised by my counsel J.J. Robinette, Q.C. and
others, that a judge does not come under the Enquiry Act, the Civil Servants
Act or any other statute and an enquiry is illegal. (f) I am advised that it is inimical to the interest of the
Bench that I create the precedent of requesting and submitting to an Enquiry
because of the criticism of person or association. . . . . . Again, Sir, I submit the Report of the Society does not
accuse me specifically of serious breach of Law or Ethics. If so, it then
becomes a question whether or not, in my sole discretion, I deem fit to invite
further proceedings and publicity to vindicate my name to the mind of some
people who prefer gossip to facts. To the sound person, unmoved by
publicity-allergy, my past is pure and proven so to be. Should you adhere to
your previous decision and base it anew on the opinion of those who know the
facts (Magistrate Marck, Mr. Justice D.
Wells, the Attorney-General) the matter may be closed by your statement
in the House after recital of facts. Of course, if you are satisfied there are
reasonable and probable grounds to justify impeachment proceedings, it is your
duty so to do. Those proceedings I must meet in both Houses. In the light of
present events, I have no intention of resigning. During my entire career as a
solicitor, a member of Boards, Commissions and Councils, as a Judge, I have
conducted myself in strict conformity to the highest concept of Ethics. Of
this, others may speak, others who know me. 37
On June 12, 1965, Magistrate Marck wrote the Law Society. He had been
shown a copy of its report. He characterized it as a grave injustice. He said
there was a total absence of any evidence the plaintiff had been guilty of any
corruption. He suggested the Benchers might see fit to reconsider their report.
He indicated his willingness to appear before them. 38 On June 18, 1965, Mr. Robinette wrote
the Minister of Justice referring to the Magistrate’s letter. He suggested that
it provided the answer to the speculations of the Law Society. He expressed the
hope, in those circumstances, the Minister would not deem it necessary to
institute any form of judicial inquiry. Mr. Robinette pointed out he had
written to the Minister in February of 1965 expressing grave doubts as to the
constitutional power of the Governor
in Council to direct a judicial inquiry with reference to the conduct of
a superior court judge. 39
The Honourable Lucien Cardin became Minister of Justice. On July 29,
1965, he sent a telegram to the plaintiff. It stated in part: “I … have
reached the conclusion that, in your own interests, as well as in the interests
of the administration of justice, a formal inquiry … would be
desirable.” He invited comments from the plaintiff. 40
The plaintiff on August 4, replied: It will be noted from your file that I have invited an
inquiry on several occasions. I include conversations with your two
predecessors Honourable Chevrier and Honourable Favreau. However, your
predecessor, having reviewed his file and the judgment of Magistrate Marck did
decide in October 1964 that a public inquiry was not warranted by the facts.
His comments to the press indicate this. There are no new facts. Since that
time, it has been pointed out to me by a number of my colleagues that for a
Superior Court Judge to submit or consent to a public inquiry would establish a
very dangerous precedent, particularly when such acts antedate his appointment
and do not relate to the performance of his official duties. Further, your file
contains a letter from my
solicitor, J.J. Robinette, Q.C., to Honourable Favreau dated February 22, 1965.
It expresses our view that a Superior Court Judge does not come under the Civil
Service Act, the Public Officers Act, the Inquiries Act — nor any other
applicable statute. Under the law the Superior Court Judge is answerable only
before both Houses on proceedings of impeachment. You do realize no one is more
interested than I to vindicate fully my name. The dilemma raises, therefore, a
question of jurisdiction. You may deem the question to be of sufficient
importance to be submitted to the Supreme Court of Canada for determination. I
am prepared to submit only to whatever inquiry or process the Supreme Court of
Canada holds to be legal. That question, however, does not and will not prevent
you from taking impeachment proceedings at any time if you deem facts justify
such action. It must be noted no one has accused me of breach of Ethics in an
act done nine years ago. . . . . . It appears now that the issue takes a legal aspect, and in
view also of my absence from the country until the end of this month, I would
beg you to address future correspondence to Mr. J.J. Robinette, Q.C., c/o
McCarthy and McCarthy, Solicitors, Canada Life Building, University Ave.,
Toronto. 41
Mr. Cardin, on August 18, answered: I have very carefully considered your letter of August 4th,
and the points you make. Nevertheless, I feel that in the interests of the
administration of justice I must recommend to my colleagues that a Commissioner
be appointed to conduct an inquiry and to make his report to the Government. As
I view the matter, the issue is not whether an offence was committed. The
question that has been raised is, as I indicated in my telegram, quite a
different one. The purpose of the inquiry would not be to review the decision
of the Magistrate, but to ascertain whether it is in the interests of the
administration of justice that, having regard to all the circumstances, you
should continue to hold your present office. It is on this question that I feel
an opinion from an eminent outside and independent authority ought to be
obtained. It is therefore my intention to proceed with the inquiry. 42
Mr. Cardin and the plaintiff then, on August 30, met in Toronto. It
seems the past history of the whole affair was discussed. According to notes
made by the plaintiff (Exhibit 37), he told the Minister that while a decision
to hold an inquiry was, of course, the Minister’s, Mr. Robinette and Mr.
Sedgewick strongly opposed such an inquiry. There was some mention by the
plaintiff of not answering any subpoenas that might be issued by a
Commissioner, and a motion then being launched to have the inquiry declared
illegal. The Minister indicated his view that an inquiry into the conduct of a
judge was, under the Inquiries Act, permissible. 43
The discussion was inconclusive. The Minister indicated the whole matter
would be left open; any decision to launch an inquiry would, at the moment, be
held in abeyance. 44
Some telegrams were then exchanged in connection with a press suggestion
that the Law Society’s report was going to be released. Mr. Cardin’s telegram
of November 23, 1965, to Mr. Robinette said in part: “… I … propose
you consent to appointment of Commission under Inquiries Act.” 45
Mr. Robinette replied on November 29. He quoted at length from his letter
of February 22, 1965 to Mr. Cardin’s predecessor. In that previous letter he
had expressed the view that section 2 of the Inquiries Act did not authorize
the Governor in Council to set up an inquiry with reference to the conduct of a
superior court judge. He had, in February, set out his position that: …under our Constitution the only person who has any
jurisdiction whatsoever over the
behaviour of a Superior Court Judge is the Governor General and then only
“on address of the Senate and House of Commons” as stipulated in
Section 99 of The British North America Act. 46
On pages 3 and 4 of his November letter, he said: My view with respect to this matter I know is shared by
others and I think it would involve an interference with the independence of
the judiciary if Mr. Justice Landreville were to consent to the appointment of
a Commissioner under The Inquiries Act. In any event a Commissioner under The
Inquiries Act either would or would not have jurisdiction and Mr. Justice
Landreville’s consent could not give a Commissioner jurisdiction which he does
not have. I have discussed the matter with Mr. Justice Landreville and what we
suggest is that the government should refer the matter to the Supreme Court of
Canada for an adjudication by it as to whether or not a Superior Court Judge in
a province can be the subject of an inquiry under The Inquiries Act. Such a
reference to the Supreme Court of Canada should also ask for the opinion of the
Court as to what the words “during good behaviour” in section 99 of
The British North America Act encompass. We made the suggestion to The
Honourable Guy Favreau some months ago that this question as to the power of
the government to appoint a Commissioner under The Inquiries Act to look into
the status of a Judge of a
Superior Court ought to be referred to the Supreme Court of Canada. In
short for the reasons which I have stated Mr. Justice Landreville is not
prepared to consent to the appointment of a Commissioner but we repeat our
suggestion that the question of the power of the government to appoint a
Commissioner under the Inquiries Act should be referred to the Supreme Court of
Canada along with a question the answer to which would define the scope and
meaning of the words “during good behaviour” in section 99 of The
British North America Act. Mr. Justice Landreville would welcome an opportunity
to state his position before a forum having jurisdiction to deal with the
matter. Such a forum would be removed from any considerations of political
expediency and would be in keeping with the dignity of his office. The position
which Mr. Justice Landreville takes, not only in his own interests but in the
interests of the other members of the judiciary, is that under The British
North America Act the only person having jurisdiction with respect to any
possible removal is the Governor General of Canada acting on joint address of
the Senate and the House of Commons as provided in section 99 of The British
North America Act. 47
Mr. Cardin answered on December 28, 1965. He disagreed with Mr.
Robinette’s contention as to the limitations of the Inquiries Act in respect of
the conduct of superior court judges. He expressed the view the plaintiff could
give consent to a commissioner’s jurisdiction. On this point he added:
“A commissioner would have no
jurisdiction to make any judgment or order; his sole function would be to
ascertain and report on the facts.” He did not agree that there should be
a reference, as suggested, to the Supreme Court of Canada. On this point he said: There is no doubt that Parliament itself has the right and
the power to make an inquiry into the conduct of a judge, and such an inquiry
could be instituted on the motion of any member of the House, whether he is a
member of the Government’s side or not. If Mr. Justice Landreville is not
agreeable to having an inquiry under the Inquiries Act, then I think he might
expect that there will be a parliamentary inquiry. Such an inquiry would be
founded on an allegation of impropriety and I should have thought that the
Judge would prefer an “open” inquiry under the Inquiries Act that is
not founded on an allegation of impropriety and would be designed simply to
ascertain the facts. As for your proposed question to the Supreme Court, may I
suggest that courts cannot be asked to interpret words in the abstract. The
most that could be done would be to refer a statement of facts to the Court and
ask whether on these facts there has been a breach of the condition of judicial
office. However, the first thing to be done, in my judgment, is to ascertain
what the facts are. In any event, I would point out that the question you
suggest to be put to the Supreme Court is not the principal issue in this
matter. The question is not so much whether the Judge has breached the condition of his office, namely, that
it be held during good behaviour, but whether he has in the opinion of
Parliament conducted himself in such a way as to render himself unfit to hold
high judicial office. Under section 99 of The British North America Act, a
judge may indeed be removed for “misbehaviour”, but the power to
remove on address extends to any ground and it is open to Parliament to make an
address for the removal of a judge on any ground it sees fit, whether it
constitutes misbehaviour in office or not. I may say frankly that I would not
wish to institute an inquiry under the Inquiries Act if there is any prospect
that Mr. Justice Landreville would attempt to frustrate the inquiry by
prerogative writ or otherwise. However, if an inquiry under the Inquiries Act
is not agreeable to your client, then the result may well be a motion in
Parliament for an inquiry by a Parliamentary Committee. As I have pointed out,
such a motion may be made by any member of Parliament. I should have thought
that, from the Judge’s point of view, an inquiry under the Inquiries Act would
be preferable. However, the choice rests with him, and if he is unwilling to
have an inquiry under the Inquiries Act, I think it only fair to say that he
may expect an inquiry by Parliament itself. 48
Following that correspondence, it seems Mr. Robinette went to Ottawa and
discussed the affair either with the Minister or officials in the Department of
Justice. He was made aware “in general terms” of the terms of
reference for the proposed
Commission.[FN9] 49
On January 17, 1966, Mr. Robinette sent a telegram to Mr. Cardin as
follows: Justice Landreville has instructed me on his behalf to
request the Government to appoint a Commissioner under the Inquiries Act to
inquire into his dealings with Northern Ontario Natural Gas Company or any of
its officers or servants. 50
I here point out that the telegram has some noticeable similarity to
Commissioner Rand’s first term of reference. No reference is made to any other
terms. The telegram was acknowledged two days later. 51
A statement was then made by the Minister in the House. The plaintiff
wrote him on January 24, 1966. That letter is in French. My free translation of
the first two paragraphs is as follows: [TRANSLATION] I am indebted to you for the statement made in
the House last week. I had understood from Mr. Robinette that you were to
declare that this inquiry was to be held at my request. Moreover, he must have
told you that this procedure has for its purpose to apprise you of the facts.
The conclusions or recommendations
will not have the force of a final decision, since we always contend that only
Parliament and the Senate have jurisdiction and they will decide, if the
necessity arises. The procedure is therefore under all reserve and without
creating a “precedent” because certain of my colleagues do not accept
the position that the “Inquiries Act” applies. 52
The Commissioner was then appointed and his letters patent issued. 53
I shall, at this stage, deal with the first of the main submissions put
forward, on behalf of the plaintiff, by Mr. Henderson, that the Commission was
not validly constituted; the procedure to be followed is that set out in
section 99 of The British North America Act, 1867. Mr. Ainslie, for the
defendant, had three main points in reply: first, the Commission was, in law,
validly constituted; second, the plaintiff had requested or consented to it and
he now cannot challenge it; third, neither the plaintiff nor his counsel, at
the inquiry itself, attacked the appointment of the Commissioner or his
jurisdiction. 54
I set out sections 2 and 3 of the Inquiries Act[FN10] : 2. The Governor in Council may, whenever he 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. In case such inquiry is not regulated by any special law,
the Governor in Council may, by a commission in the case, appoint persons as
commissioners by whom the inquiry shall be conducted. 55
The first Inquiries Act following Confederation appeared in 1868 (31
Vict. c. 38). The wording is identical, as to what matters may be inquired
into, to the 1952 Revision: …any matter connected with the good government of Canada,
or the conduct of any part of the Public business…. But in the pre-Confederation legislation of the Province of
Canada, the words “administration of justice” had also been listed as
a matter of inquiry. I assume those words were removed because section 92(14)
of The British North America Act, 1867 assigned legislative power, in respect
of the administration of justice in the province, to the provinces. 56
It is necessary to set out, as well, sections 96 and 99(1) of The British North America Act, 1867: 96. The Governor General shall appoint the Judges of the
Superior, District, and County Courts in each Province, except those of the
Courts of Probate in Nova Scotia and New Brunswick. . . . . . 99.(1) Subject to subsection (2) of this section, the judges
of the superior courts shall hold office during good behaviour, but shall be
removable by the Governor General on address of the Senate and House of
Commons. 57
In respect of the tenure of superior court judges and their removal, the
plaintiff contends that section 99(1) is a code in itself; in order to remove
or dismiss a judge, there must first be an address of the Senate and House of
Commons; the judge can then be removed by the Governor General. The plaintiff
says any inquiry into the conduct of a judge must be initiated or made only by
the Senate and the House of Commons. The plaintiff does not say the initial
procedure must be the address referred to in section 99; he agrees the Senate
and the House may, of their own motion, authorize or carry out investigative
procedures before an actual address. 58
One must begin, the plaintiff argues, with the theory of separation of
powers or functions: the executive, the legislative, and the judicial. The
effect of section 99 of The British North America Act, 1867 is, it is said, to
ensure the independence of the judges; independence is more than mere tenure
and salary; it is freedom from harassment or inquisition. On those premises,
the plaintiff contends that any investigatory process into the conduct or
fitness of a superior court judge must be initiated by the Senate and House of
Commons; those bodies alone must ascertain the facts on which an address might
be based; any preliminary processes must be authorized or carried out by them.
Counsel for the plaintiff says that, in this case, the “complaint of
misconduct” came from an outsider (The Law Society of Upper Canada),
prompting a decision, outside the two Houses, to investigate or inquire; that decision
was made, not by the Senate or House, but by the Governor in Council;[FN11] the
consequent investigation was carried out by a person not authorized by them to
inquire or report on their behalf and for their purposes only. Finally, it is
submitted the inquiry in question was not “… concerning any matter
connected with the good government of Canada …”; the judges are
independent and apart from government; their conduct in office, and tenure, can
only be inquired into by means of section 99 of The British North America Act,
1867; by that code, the right to investigate or inquire, and the mode, is given
to the Senate and the House, and to no one else. 59
The parties here disagreed as to whether, in Canada, the only method of
removal of judges is through an address system in Parliament. The defendant
contended there were, in Canada, two other courses open: (1) a writ of scire
facias to repeal the letters patent appointing a judge; (2) a criminal
information at the suit of the Attorney General.[FN12] 60
Professor W.R. Lederman, in 1956, wrote a lengthy and compelling essay
“The Independence of the Judiciary”[FN13] . He reviewed the possible
methods of removal of judges in England.[FN14] As to the post-Confederation
situation in Canada, he said at page 1161: Also, as in England, it is probable that the provision for
removal of superior-court judges by joint address in the federal Parliament is
additional to, and thus not exclusive of, the older prerogative type of removal
without reference to Parliament. That statement, to me, suggests that in Professor Lederman’s
view, section 99 of The British North America Act, 1867 is not, as the
plaintiff contends, a code of its own. In any event, Professor Lederman does
not appear to discuss specifically
the point whether or not initial investigative procedures must emanate from
Parliament. 61
The defendant relies, however, on a statement in Todd (footnote 12) that
Parliament may originate the action of removal in various ways. It is said: …after a preliminary enquiry — by a royal commission (at
the instance of government, or at the request of either House of
Parliament)….[FN15] The defendant relied on this statement for authority that
the Executive in this case, as well as the Senate and House, could initiate the
proceedings by means of a Royal Commission outside Parliament. I agree with Mr.
Henderson that the case cited by Todd in support of the proposition, (Chief
Baron O'Grady’s case) is readily distinguishable. In the O'Grady case there was
a standing or continuing commission of inquiry in respect of the Courts of
Justice in Ireland. In their ninth and eleventh reports, the Commissioners
accused Chief Baron O'Grady of unjustly and arbitrarily increasing his own
fees. Two select committees of the House of Commons investigated the charge and
confirmed the accusation. The government communicated their reports to the
Commissioners, who again investigated the matter and reported back to the
government. The whole matter was ultimately resolved, without Parliamentary
address proceedings. 62
In the present case, there was, of course, no standing commission. The
Executive passed an Order in Council setting up a special commission to inquire
into the conduct of one particular judge in respect of certain transactions. I
did not find the statement in Todd to be either helpful or conclusive on this
point. 63
The defendant further asserts that because the Governor General, under
section 96, appoints judges, then he and his council must, as a step in the
process of their removal, have power to initiate investigations or inquiries.
Professor Lederman, at page 1162 of his article, referred to sections 31 and 33
of the former Judges Act[FN16] . Where it was felt a superior court judge had
become incapacitated or disabled by reason of age or infirmity, his salary
could be stopped. The Governor in Council had first to issue a commission of
inquiry to investigate and report upon the facts. Professor Lederman expressed
doubt that this was a constitutionally permissible procedure. He said, (page
1163): In my view section 31 of the Judges Act is inconsistent with
the meaning of tenure during good behaviour prescribed in section 99 of the
B.N.A. Act. 64
The opinions expressed in Todd and in Professor Lederman’s article do
not bear squarely on the precise point raised by Mr. Henderson and disputed by
Mr. Ainslie. I have concluded, but with doubt, that the Governor in Council, as
distin guished from the Governor General or Parliament, can authorize an
inquiry into the conduct of a superior court judge. Section 99 of The British
North America Act, 1867 deals only with the power of removal: by the Governor
General, but only after a Parliamentary address for removal. In this country
the appointment of the judges of the superior, district and county courts of
the provinces lies with the federal power. As I see it, the conduct of those
judges is a “… matter connected with the good government of
Canada….” The federal executive is empowered, under section 2 of the Inquiries
Act, to cause an inquiry to be made. That was what occurred here. Section 99 of
The British North America Act, 1867 does not, to my mind, preclude inquiries of
the kind here ordered. If, for example, the Commissioner’s report had been
favourable to the plaintiff, an investigation and address by the Senate and
House, in accordance with section 99, would still have been open. 65
Technically, it is not now necessary for me to deal with the defendant’s
other contentions on this issue: that there was consent by the plaintiff to
this inquiry; that no “constitutional” objection was raised at any
time during it. I feel I should express my opinion. 66
It is true that, as a matter of form, the inquiry was ordered after a
request by the plaintiff. But I conclude, on the evidence before me, there was
a good deal of pressure exerted on him. One cannot shut out the state of
Canadian political history at that time. It is permissible to take judicial
notice of the facts of history. In Calder v. Attorney General of British
Columbia, Hall J. delivering the dissenting judgment of himself, Spence J. and
Laskin J. [as he then was], said[FN17] : Consideration of the issues involves the study of many
historical documents and enactments received in evidence, particularly exs. 8
to 18 inclusive and exs. 25 and 35. The Court may take judicial notice of the
facts of history whether past or contemporaneous: Monarch Steamship Co. Ltd. v.
A/B Karlshamms Oljefabriker [[1949] A.C. 196], at p. 234, and the Court is
entitled to rely on its own historical knowledge and researches: Read v.
Lincoln [[1892] A.C. 644], Lord Halsbury at pp. 652-4. 67
The judgment of Martland, Judson and Ritchie JJ. was given by Judson J.
No specific reference was made to the power of a court to take notice of
historical facts. But it is obvious from the reasons that those three judges
also resorted to history. 68
Here, the plaintiff’s name first came into prominence in 1962. In a
general election in that year, the Progressive Conservative government was
returned, with a minority. The next election in 1963 produced a Liberal
minority government. That minority situation persisted until 1968. The history
of that period records there were a number of matters which caused concern and
difficulty to the minority government.[FN18] The plaintiff had earlier
indicated he was prepared to launch legal attacks against any Royal Commission
that might be set up. I think that would have been, if it had materialized, an
embarrassing situation. The minority government’s other method, unchallengeable
by the plaintiff, was to try and obtain a joint address in Parliament. The
plaintiff’s choice, if it can be described as that, was not a real or free one. 69
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”. 70
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 Commission
er 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 and 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. 71
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. 72
I turn now to the second main submission by the plaintiff. It is first
necessary to set out in more detail the facts surrounding the share transaction
between NONG and the plaintiff. For that purpose I shall rely almost
exclusively on the evidence referred to in the Commissioner’s report. 73
In 1954 and 1955 the route of the TransCanada PipeLine Company and the
distribution from the line to various communities in Northern Ontario became a
matter of concern and interest. It appeared that only one company, or agency,
rather than several, would handle that distribution. NONG had been incorporated
with that purpose in mind. It was very much in the running. It put forward
considerable effort endeavouring to obtain franchises from various communities
including Sudbury. 74
As recounted, the plaintiff was, in 1955 and 1956, the mayor. NONG,
chiefly through Farris, presented submissions for the Sudbury franchise. Over
the course of those dealings, the plaintiff and Farris had, after perhaps an
initial coolness, come to like each other. By the spring of 1956, most of the
other franchises had been granted. Sudbury began to take action. A by-law,
approving the franchise, had to be passed by Council. On May 22, 1956, first
and second reading of the by-law were given. There remained third reading,
the approval of the terms of the
franchise, and a certificate of convenience and necessity by the Ontario Fuel
Board. The latter was a foregone conclusion. 75
On July 17, 1956, Council gave, by a vote of 7 to 3, third reading to
the by-law. The plaintiff, as was the general practice, did not vote. The
agreement conferring the franchise was signed by the City the next day. It was
returned on July 20 executed by NONG. The Fuel Board, at a later date, issued
the necessary certificate. The plaintiff felt that the Board had in substance
approved the franchise on June 21. 76
The plaintiff testified, at the Commission, that in a friendly talk with
Farris, he pointed out his term as mayor would end in 1956. He indicated
interest in doing NONG’s legal work after that. He said he also indicated a
desire to purchase some shares in NONG[FN19] . A key issue at the Commission
hearing was the date of this discussion with Farris. Before Commissioner Rand
the plaintiff felt it likely occurred on July 17, 1956, in the evening, after
the Council meeting. That was the meeting where the by-law passed third
reading. In testimony by the plaintiff in the previous proceedings referred to
(the Ontario Securities Commission, the Farris preliminary and the Farris
trial), he had thought the conversation had occurred sometime in the first two
weeks of July. That earlier evidence, vague, if not inconsistent, was put
to the plaintiff at the
Commission. 77
In any event, a letter, dated July 20, 1956, was sent by NONG to the
plaintiff. Among other things, it referred to the plaintiff’s interest in
assisting the company in some capacity in the future. It referred to his desire
to purchase stock. It went on to say there had been a change in the capital of
the company. Shares had been split five for one; existing shareholders had been
given the right to subscribe for a limited number of shares at $2.50 per share. At the same time it was resolved to offer you 10,000 shares
at the same price of $2.50 per share. This offer is firm until July 18th, 1957.
Should you wish to purchase portions of these shares at different times, that
will be in order. 78
On July 30, 1956, the plaintiff wrote in reply. He said in part: I fully appreciate the advantages of the offer you outline
to me and I fully intend to exercise this option before July 18th, 1957. 79
On September 19, 1956, the plaintiff wrote Farris as follows: Mr. Ralph K. Farris, President, Northern Ontario Natural Gas
Co. Ltd., 44 King Street, W.,
Suite 2308, TORONTO, Ontario. My dear Ralph: On the early morning of Tuesday following our meeting in
North Bay, I was in conversation with the Minister of Justice and some other
high official. I made my decision — I accepted. After the dilemma of whether to have my appendix out or not,
the dilemma of remaining a bachelor and happy or get married — this was the
biggest dilemma! I feel that given three or four years and with my ambition, I
would have squeezed you out of the Presidency of your Company — now I have
chosen to be put on the shelf of this all-inspiring, [sic] unapproachable,
staid class of people called Judges — what a decision! However, right or
wrong, I will stick to it and do the best I can. I want to assure you that my interest in your Company,
outwardly aloof, will, nevertheless, remain active. I am keeping your letter of
July 20th carefully in my file.[FN20] Sincerely, LAL:lmg
Leo 80
There was a discussion between Farris and the plaintiff later in the
fall of 1956, some time after the plaintiff’s swearing in as a judge. Farris
asked the plaintiff whether he still wanted the shares. The plaintiff replied
that he did. 81
The plaintiff himself did nothing further until some time in 1957. He
said he received a phone call from someone about the shares. The substance of
it was that the shares were then trading for approximately $10.00; 2500 of the
shares were to be sold to pay off the total number of 10,000. This meant, of
course, the plaintiff never actually paid money. The Commissioner dealt at
considerable length with the evidence as to the identity of the person who
telephoned the plaintiff. The latter had always been adamant in the prior
proceedings, and again at the Commission, that the caller was not Farris. The
Commissioner decided that it was Farris. 82
On February 12, 1957, Continental Investment Corporation Ltd., a broker,
wrote the plaintiff as follows: Vancouver, B.C. February 12, 1957 Mr. Justice L.A. Landreville, Osgoode Hall, Toronto, Ontario. Dear Sir: Some time ago, we were instructed by Mr. R. K. Farris to
purchase for your account, 10,000 shares of Northern Ontario Natural Gas
Company Limited at $2.50 per share. We have as of this date sold 2,500 shares
for your account at $10.00 per share which clears off the debit balance in your
account. You will find enclosed 7,500 shares of Northern Ontario
Natural Gas Company Limited with stock receipt attached, which we ask you to
sign and return to this office at your convenience. Yours truly, Continental Investment Corporation Ltd. JM:AH
John McGraw 83
The plaintiff replied on February 16, 1957: Osgoode Hall Toronto 1. Feb. 16th, 1957 Continental Investment Corporation, Vancouver, B.C. Dear Sirs: Re: Northern Ontario Natural Gas Co. I have received yours of the 12th with Stock Certificates
enclosed for which I thank you. I am enclosing receipt for same. Should I be of any assistance to your firm for the promotion
and betterment of this company in Ontario, please do not hesitate to contact
me. Sincerely, L.A. Landreville 84
The 7,500 shares were later sold, in blocks of various sizes. The
plaintiff realized a profit of $117,000. 85 I go now to the Commissioner’s
report. 86
In the first 68 pages the Commissioner reviewed the history of pipe line
development, the involvement of the City of Sudbury and the plaintiff, and the
latter’s dealings with NONG. In respect of those dealings and the receipt
of the shares, he canvassed in
detail the evidence the plaintiff had given in the three previous proceedings,
and the evidence he gave at the Commission. 87
The Commissioner characterized the shares as a gift. He did not accept
the contention that the correspondence of July 20, and July 30, 1956 amounted
to an option, if not legally enforceable, perhaps morally enforceable. I quote
from pages 68-69: Arising out of the distribution of the 14,000 shares,
prosecutions were launched against the mayors of four municipalities by which
franchises had been granted: Sudbury, Orillia, Gravenhurst and Bracebridge. The
offences charged were the same: in substance that NONG stock received by the
mayors had been corruptly bargained for and that each, for the promise of
reward, had used his influence to assist NONG in obtaining a franchise from his
municipality. In three of them the information was dismissed on the ground of
insufficient evidence to justify committing the accused to trial; in the
fourth, that of Orillia, the accused was acquitted in a county court jury
trial. Following these, a public statement was issued by the Attorney General
that in the circumstances no Bill of Indictment would be preferred by him
before a Grand Jury in any of the three cases of dismissal. To the Province there has been committed by Section 92 of
the British North America Act exclusive jurisdiction over the administration of
justice. The courts here concerned are provincial courts although judges of the
Supreme and County Courts are appointed by the Dominion Government. Such a
charge levelled against a Judge of the Supreme Court of Ontario becomes
obviously a matter of primary provincial interest; and in the case of Justice
Landreville, it was to vindicate that as well as the general interest in
municipal government, and the enforcement of the criminal law, also provincial
matters, that the prosecution was brought. This formal action of the provincial
authorities creates a situation where their judgment arrived at by a
consideration of all the circumstances, must be accorded a respectful
recognition by this Commission. That means that an originally corrupt agreement
between Farris and Justice Landreville to bargain shares for influence is not
to be found to be established; the presumption arises that there was no such
agreement. Such a matter is a question of a state of mind; the external facts
are before us; what is hidden is the accompanying understanding; and it is
proper for this Commission to assume that the facts disclosed do not satisfy
the requirements of our criminal law that that understanding, beyond a
reasonable doubt, was corrupt. This leads us first to the consideration of a conclusion
from these external facts which is
consistent with that assumption; and secondly, whether what took place in
relation to those facts has infringed any other law or has violated an
essential requirement of that standard of conduct which is to be observed by a
member of the Supreme Court of a province. To these considerations personal relations become
significant. 88
The Commissioner, for the next several pages, then set out the
plaintiff’s personal history prior to his first association with Farris. I
think it fair to comment that it does not appear to have been recorded in a
completely objective way. Purely as one example, I quote these two sentences: His emotions are active and he can be highly expansive; he
is fascinated by the glitter of success and material well-being. His outlook is
indicated by a residence in Mexico, as well as a lodge some miles from Sudbury. 89
The remainder of the report to page 98, is, as I read it, the basis for
the Commissioner’s second and third conclusions. 90
Counsel for the plaintiff contends the Commissioner, in inquiring into,
and expressing findings and opinions on, the matters set out from pages 69
to 98, exceeded his terms of
reference; he therefore exceeded or lost jurisdiction; the plaintiff is
entitled to a declaration accordingly. 91
It is necessary at this stage, in order to fully appreciate the
contention on behalf of the plaintiff, to set out the formal conclusions of the
Commissioner. These appear on pages 107 to 108: Drawn from the foregoing facts and considerations, the
following conclusions have been reached: I — The stock transaction between
Justice Landreville and Ralph K. Farris, effecting the acquisition of 7,500
shares in Northern Ontario Natural Gas Company, Limited, for which no valid
consideration was given, notwithstanding the result of the preliminary inquiry
into charges laid against Justice Landreville, justifiably gives rise to grave
suspicion of impropriety. In that situation it is the opinion of the
undersigned that it was obligatory on Justice Landreville to remove that
suspicion and satisfactorily to establish his innocence, which he has not done.
II — That in the subsequent investigation into the stock transaction before
the Securities Commission of Ontario in 1962, and the direct and incidental
dealing with it in the proceedings brought against Ralph K. Farris for perjury
in 1963 and 1964 in which Justice Landreville was a Crown witness, the conduct
of Justice Landreville in giving evidence constituted a gross contempt of these
tribunals and a serious violation of his personal duty as a Justice of the
Supreme Court of Ontario, which has permanently impaired his usefulness as a
Judge. III — That a fortiori the conduct of Justice Landreville, from the
effective dealing, in the spring of 1956, with the proposal of a franchise for
supplying natural gas to the City of Sudbury to the completion of the share
transaction in February 1957, including the proceedings in 1962, 1963 and 1964,
mentioned, treated as a single body of action, the concluding portion of which,
trailing odours of scandal arising from its initiation and consummated while he
was a Judge of the Supreme Court of Ontario, drawing upon himself the onus of
establishing satisfactorily his innocence, which he has failed to do, was a
dereliction of both his duty as a public official and his personal duty as a
Judge, a breach of that standard of conduct obligatory upon him, which has
permanently impaired his usefulness as a Judge. In all three respects, Justice
Landreville has proven himself unfit for the proper exercise of his judicial functions. 92
I do not think anything is to be gained by reviewing or setting out the
impugned matters found at pages 69 to 98, or the Commissioner’s comments and
opinions. It is not for me to decide whether the evidence or materials referred
to by the Commissioner on this aspect of the matter were relevant, cogent or
trustworthy. Nor is it for me to decide whether the comments of the Commissioner, on what amounted to the
personality and credibility of the plaintiff, were justified or valid. Opinions
may well differ. I am only concerned with deciding whether the kind of findings
set out in conclusions II and III were reasonably within the terms of reference
set out in the Letters Patent. 93
In my opinion, what I have set out as (b)(ii) of the terms of reference
are wide enough to embrace the portions of the Report and the conclusions
attacked by the plaintiff. That portion of the term of reference is: (b) to advise whether, in the opinion of the Commissioner: (ii) whether the Honourable Mr. Justice Landreville has by
such dealings [with NONG or its officers or in its shares] proved himself unfit
for the proper exercise of his judicial duties. 94
As I see it, the credibility of the plaintiff was an issue. In
conclusion II the Commissioner chose to find that the plaintiff’s conduct in
giving evidence before the Securities Commission and in the proceedings against
Farris, constituted a gross contempt of those tribunals. It is true the
Commissioner had before him only the transcript of the evidence given by
the plaintiff in those
proceedings. He did not have before him the testimony given by other witnesses.
Nevertheless, it is my view the question of credibility was within the terms of
reference. The quarrel is really with how the Commissioner dealt with the
issue, and the facts or matters he chose to rely on. I do not think his method
of dealing with the question, though others might have done differently,
amounted to going beyond the terms of the reference, and so losing
jurisdiction. 95
I now turn to the final main submission on behalf of the plaintiff. 96
Section 13 of the Inquiries Act is as follows: 13. No report shall be made against any person until
reasonable notice has been given to him of the charge of misconduct alleged
against him and he has been allowed full opportunity to be heard in person or
by counsel. 97
The plaintiff argues the Commissioner did not comply with this section.
It is said there is nothing in the terms of reference, nor was there any
indication at the hearing, that any allegation would be made against the
plaintiff, in respect of previous testimony; that it would be alleged his
conduct before those tribunals in giving evidence …constituted a gross contempt … and a serious violation
of his personal duty as a Justice …, which has permanently impaired his
usefulness as a Judge. 98
It is further said the matters referred to in conclusion III,
incorporating as it does the assertions in conclusion II, do not reasonably
appear in the terms of reference; no notice was given to the plaintiff either
before or during the hearing there would be those allegations of misconduct. 99
I digress somewhat to set out the procedure at the Commission hearings.
[FN21] It was agreed that any witnesses called, including any requested on
behalf of the plaintiff, and including the plaintiff, would be examined in
chief by Commission counsel. The plaintiff’s counsel, Mr. Robinette, would have
the right to cross-examine last. Mr. Robinette would be permitted to present
argument at the conclusion. 100
On the last day of the hearings, Commission counsel made his
submissions. Mr. Robinette followed with his. Commission counsel then said
(pages 1329-30): Mr. Chairman, we have now reached a point where we can
adjourn. 101
After some formal remarks by Commission counsel thanking various persons
for their help, he said: With that, sir, I suggest that we adjourn sine die. 102
The Commissioner, shortly after, said: The Hearing is adjourned sine die. 103
Counsel for the plaintiff submits that in the circumstances here the
provisions of section 13 became mandatory and ought to have been followed. The
contention runs this way. When the Commissioner reached his decision (as he
obviously at some stage did before actually signing his written report) to
assert or allege that the plaintiff’s conduct in giving his evidence before
other tribunals amounted to misconduct or misbehaviour in office, the
Commission should then have been reconvened, and notice of the “charge”
of misconduct given; the plaintiff should then have been allowed to call
witnesses, if he wished, to answer the so-called charges and to make his
defence, either personally or by counsel, to them; instead, the first notice the plaintiff had was the publication
of the Commissioner’s report. 104
Counsel for the plaintiff asserts there is nothing in the terms of
reference, nor was there anything throughout the hearing, that indicated
allegations of misconduct as set out in conclusions II and III would be
levelled or considered. It is further asserted that if the plaintiff and his
legal representative had known these allegations were going to be made by
someone or by the Commissioner, they could well have sought evidence to answer
the “charges”. It is not, as I see it, unreasonable to surmise the
plaintiff and his advisers might have considered, in respect of allegations of
gross contempt, calling as witnesses the officials of the Securities
Commission, and perhaps those presiding over the Farris cases to canvass their
opinions as to whether the conduct of the plaintiff in those proceedings was
gross contempt. 105
I agree with the plaintiff that the assertion of gross contempt was a
very serious one. The Commissioner said at pages 94 and 95: The unpleasantness of the matter investigated cannot be
allowed to minimize its derogatory character. There was conscious contempt
before all three tribunals; it may or may not have passed the borders of
criminality; but to confuse, to raise doubts by the juxtaposition of contrived
and emphatic assertion and
nullifying qualifications and reservations, is not to be distinguished
in effect from deliberate falsity. 106
I translate that as a finding of perjury. 107
Counsel for the defendant maintains the allegations or charges are set
out in the Order in Council and Letters Patent; they are the notice of the
charges of misconduct alleged; the impugned conclusions obviously and
reasonably arose out of charges set out in the terms of reference. 108
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. 109
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. 110
No authority was cited to me, in respect of the application of section
13, which was closely in point. Reference was made to Crabbe v. Minister of
Transport[FN22] . I agree the facts of that case are readily distinguishable;
so too, the relevant statutory provisions and rules. There is, nevertheless,
some similarity. In my opinion the case is helpful. 111
There, a court of investigation was appointed, pursuant to the Canada
Shipping Act, to investigate a collision between two large vessels. The statute
and the Shipping Casualties Rules governed the procedure at the investigation. 112
All of the parties concerned, including some of the officers and the
pilots of the two vessels, were served, prior to the commencement of the
investigation, with a “statement of the case”. That document
contained 15 questions. The first fourteen covered somewhat formal and
technical matters. The last question read [at page 865]: Was the collision caused or contributed to by the wrongful
act or default by any person or persons and if so what were those wrongful acts
or defaults and by whom were they committed. The Department of Transport had conduct of the proceedings.
The Shipping Casualties Rules (Rule 17) provided that when the examination of
witnesses, called on behalf of the Department of Transport, had been concluded,
and after cross-examination of those witnesses by interested parties, the
Department should then state …in open Court the questions concerning the casualty, and
the conduct of the certificated officers … upon which the opinion of the
Court is desired. 113 In the Crabbe case, the Department
of Transport contended that the statement of the case, containing as it did,
the question earlier set out, complied with the provisions of Rule 17; that
nothing beyond the reading of the questions was required. Counsel for Captain
Crabbe submitted that merely reading the questions was insufficient; the
particular things alleged against Captain Crabbe or other officers (the
charges) should then be set out; the particular officer or officers against
whom allegations were made would then have the opportunity to call evidence and
make submissions. 114
The Federal Court of Appeal upheld the contention of counsel for Captain
Crabbe. 115
In my opinion, similar reasoning applies in this case. I agree with the
plaintiff’s position that in the circumstances here, the Commission should have
been reconvened. The substance of the proposed allegations of misconduct set
out in conclusions II and III should have been made known to the plaintiff in
accordance with section 13. The plaintiff should then have been given the
opportunity to meet those specific charges. 116
I therefore hold, with diffidence, that the Commissioner failed to
comply with the mandatory requirements of section 13 of the Inquiries Act. 117
I have come slowly to that conclusion. The Commissioner was an eminent
and renowned judge of the Supreme Court of Canada. Ivan Cleveland Rand was appointed to the Supreme Court of
Canada on April 22nd, 1943 in his fifty-ninth year. It would be more accurate
to say that he was drafted into the court. His reputation as a man of
principle, an independent thinker, and an outstanding lawyer, had preceded him
to Ottawa. Rand’s appointment to
the court, like the universal respect which he enjoyed, had commanded itself. . . . . . The Honourable, J.R. Cartwright, eloquently summarized
Rand’s judicial career in observing that “his record offered a fair
promise which, in the sixteen years that he occupied the Bench, was gloriously
fulfilled”. Rand established himself securely in the minds of many as the
greatest judge who ever graced that bench, although others would concede that
position to the former Chief Justice, Sir Lyman Duff. Without doubt, they are
the two most eminent judges Canada has yet produced.[FN23] 118
As a mere trial bench judge, I feel some reluctance in concluding that
this distinguished Commissioner omitted to comply with one of the terms of the
statute governing his inquiry; that this was error in law. But my function
cannot be affected by diffidence or reluctance. I am required to apply the law,
as I conceive it to be, to the issues between the parties to this suit. 119
There remain two final matters of defence. 120
The first is laches. The plaintiff, it is said, has slept too long on
his rights. The report issued on August 11, 1966; he ought then to have
attacked the inquiry, even before the Joint Committee of the Senate and House
was appointed; the present litigation was not commenced until August 4, 1972;
the delay or lapse of time is substantial. 121
Snell’s Principles of Equity has this to say on laches[FN24] : Laches essentially consists of a substantial lapse of time
coupled with the existence of circumstances which make it inequitable to
enforce the claim. Delay will accordingly be fatal to a claim for equitable
relief if it is evidence of an agreement by the plaintiff to abandon or release
his right, or if it has resulted in the destruction or loss of evidence by
which the claim might have been rebutted, or if the claim is to a business (for
the plaintiff should not be allowed to wait and see if it prospers), or if the
plaintiff has so acted as to induce the defendant to alter his position on the
reasonable faith that the claim has been released or abandoned. But apart from
such circumstances delay will be immaterial. On the facts before me, I see nothing which makes it
inequitable that the plaintiff’s claim be enforced. None of the
“fatal” circumstances described in Snell are present here. The
defendant (for practical purposes, the plaintiff’s fellow-citizens) has not
been induced to alter any position. I see no compelling or equitable reason to
invoke the defence of laches. 122
The defendant says, finally, the Court should not, in the exercise of
its discretion make any declaration of any kind in favour of the plaintiff. All
the surrounding circumstances are pointed to: the affair is now old; the
plaintiff has long since resigned from the bench; the matter is, in a practical
sense, academic; there has been long delay. I agree the Court has, in the
circumstances, a discretion to grant or not grant a declaration. I do not see
any equitable, legal, or moral reason to exercise my discretion against the
plaintiff. As Pratte J. said: …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. 123
One useful purpose, to my mind, and assuming my decision in respect of
section 13 of the Inquiries Act to be correct, is that it will be a matter of
public record that the plaintiff did not, at the commission hearing, have full
opportunity to refute the allegation or finding he had committed, as a
judge, gross contempt in his
testimony before certain tribunals. 124
It is a matter of record that the plaintiff is pursuing, in this Court,
another action against the defendant. It was commenced on the same date as this
suit. In that litigation the plaintiff seeks, among alternative relief claims,
a declaration that he is entitled to a pension from June 30, 1967, the date of
his resignation as a judge. The amount of pension sought is based on the
relevant provisions of the Judges Act. It may be that the declaration I find he
is here entitled to will serve some useful purpose in the prosecution of that
other suit. 125
The plaintiff will have a declaration limited to the section 13 issue.
He will also recover the costs of this action. 126
I request counsel for the plaintiff to draw a draft judgment giving
effect to these reasons, and to submit it to counsel for the defendant. If
counsel cannot agree on the terms, I shall hear submissions. Solicitors of record: Gowling & Henderson, Ottawa, for plaintiff. Deputy Attorney General of Canada for defendant. FN1. The appointment was by Order in Council passed pursuant
to section 96 of The British North America Act, 1867. The plaintiff was
appointed a member of the High Court of Justice for Ontario, and ex officio a
member of the Court of Appeal for Ontario. FN2. R.S.C. 1952, c. 154. The Letters Patent (Ex. 28) were
issued March 2, 1966. FN3. I have quoted almost exactly the terms of reference but
have sub-numbered them for convenience and clarity. FN4. [1973] F.C. 1223. FN5. [1964] 1 All E.R. 717. FN6. Exhibit 169 at the Rand Commission. FN7. The Law Society report concluded: 2. That the Secretary of the Society be authorized and
directed forthwith to forward a certified copy of this report to the Honourable
the Minister of Justice and Attorney General of Canada, the Honourable the
Chief Justice of Ontario, the Honourable the Chief Justice of the High Court,
the Honourable Mr. Justice Landreville, and the Attorney General for the
Province of Ontario. 3. That the Treasurer of the Society be authorized to issue
copies of this report to the press at such time thereafter as he may in his
discretion deem fit. FN8. The Commissioner stated on page 95: It is perhaps
unnecessary to say that the resolution of the Benchers of the Law Society of
Upper Canada submitted to the Minister of Justice has played no part whatever
in arriving at the conclusions of fact set out in this report. Its only
relevance is that that governing body has seen fit to seek an inquiry into
matters for several years the subject of wide public concern: no challenge to
the propriety of such a request from a body having such an interest in the
administration of Justice has been or could be made. A copy of that resolution
is annexed as Appendix A of this report. FN9. Q. 253-254 of the plaintiff’s examination for discovery. FN10. R.S.C. 1952, c. 154. FN11. The plaintiff pointed out that The British North
America Act, 1867 provides for the appointment and removal of superior court
judges by the Governor General, not the Governor in Council (the cabinet). The
Inquiries Act authorizes only the Governor in Council to cause inquiries to be
held. FN12. See Todd on Parliamentary Government in England (1889)
Vol. II, pp. 853-880, particularly at 858-859. FN13. (1956) 34 Canadian Bar Review 769, continued at 1139. FN14. 34 Canadian Bar Review pp. 785-788. FN15. Todd, p. 873. FN16. R.S.C. 1952, c. 159. Sections 31 and 32 of the present
Judges Act go even further. The Canadian Judicial Council is empowered to hold
an inquiry as to whether a judge has become incapacitated or disabled, not only
by reason of age or infirmity, but by reason of misconduct, etc. The Council
can recommend the judge be removed
from office and his salary stopped. If the Cabinet then finds the judge to have
become incapacitated or disabled, the judge’s salary is stopped. In this note,
I have not overlooked section 32.2 of the present legislation. FN17. [1973] S.C.R. 313 at 346. FN18. The Munsinger affair, the Spencer affair, the Dorion
Inquiry — to name a few. FN19. I have generally summarized this evidence. The
Commissioner went into detail. FN20. The underlining was added by Commissioner Rand. FN21. The Agenda was put in as Exhibit 29. FN22. [1972] F.C. 863. FN23. “Mr. Justice Rand — A Triumph of
Principle”, by E. Marshall Pollock (1975) 53 Canadian Bar Review 519, and
522. FN24. 27th ed. (1973) p. 35. |