minicounsel

Mackeigan v. Hickman, 1989 CanLII 40 (SCC), [1989] 2 SCR 796

T. Alexander Hickman, Lawrence A. Poitras and Gregory Thomas Evans Appellants

and

Ian M. MacKeigan, Gordon L. S. Hart, Malachi C. Jones, Angus L. Macdonald and Leonard L. Pace Respondents

and

The Attorney General of Quebec, the Attorney General of Nova Scotia and Donald Marshall, Jr. Interveners

and between

Donald Marshall, Jr. Appellant

and

Ian M. MacKeigan, Gordon L. S. Hart, Malachi C. Jones, Angus L. Macdonald and Leonard L. Pace Respondents

and

T. Alexander Hickman, Lawrence A. Poitras and Gregory Thomas Evans Respondents

and

The Attorney General of Quebec and the Attorney General of Nova Scotia Interveners

indexed as: mackeigan v. hickman

File Nos.: 21315, 21351.

1989: April 19, 20; 1989: October 5.

Present: Lamer, Wilson, La Forest, L'Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.

on appeal from the supreme court of nova scotia, appeal division

Constitutional law -- Judiciary -- Judicial privilege -- Inquiry into Reference by Court of Appeal -- Commissioners ordering justices sitting on Reference to attend -- Questions relating to composition of panel on Reference, materials before the Court on the Reference, and how the Court came to its conclusions -- Whether or not justices can be compelled to testify under Public Inquiries Act -- Public Inquiries Act, R.S.N.S. 1967, c. 250, ss. 3, 4.

Courts -- Judicial privilege -- Inquiry into Reference by Court of Appeal -- Commissioners ordering justices sitting on Reference to attend ‑‑ Questions relating to composition of panel on Reference, materials before the Court on the Reference, and how the Court came to its conclusions -- Whether or not justices can be compelled to testify under Public Inquiries Act.

Constitutional law -- Provincial Royal Commission of Inquiry ‑‑ Commission investigating matters related to murder and wrongful conviction for murder -- Commission about to examine Reference by Court of Appeal which quashed wrongful conviction -- Whether or not inquiry into Reference ultra vires the province as a matter of criminal law exclusively within federal competence -- Constitution Act, 1867, s. 91(27).

The federal Minister of Justice, on the basis of new information, referred the conviction of Donald Marshall, Jr. to the Appeal Division of the Supreme Court of Nova Scotia pursuant to s. 617(b) of the Criminal Code for a redetermination. The panel which heard the matter included a justice who had been Attorney General of Nova Scotia when Marshall was investigated for, charged with and convicted of murder. That court quashed Marshall's conviction but noted at the end of its judgment that Marshall had contributed to his conviction and that any miscarriage of justice was more apparent than real. Marshall eventually received compensation for his lengthy incarceration but the comments of the Court of Appeal had an impact on the quantum of that payment.

A Royal Commission was established to inquire into the murder, the charging and prosecution of Marshall, his subsequent conviction and sentencing, and other related matters the Commission considered relevant. The justices who sat on the Reference were asked to attend and Orders to Attend were issued by the Commission when they declined to do so. The justices successfully applied for a declaration that the Commission had no authority to compel their attendance by virtue of judicial immunity and for orders quashing the Orders to Attend and prohibiting the Commission from inquiring into their operations, deliberations, decisions and orders in respect of the Reference. An appeal by the Commissioners to the Appeal Division of the Supreme Court of Nova Scotia was dismissed.

These appeals raised two issues. The first issue was whether ss. 3 and 4 of the Public Inquiries Act could be used to compel superior court judges to testify before the Commission, either with respect to how and why they reached their decision or with respect to the composition of the panel that heard the case. The second issue was whether the direction to the Commission to inquire into a reference by the Minister of Justice was ultra vires the Province because it is a matter of criminal law and procedure reserved exclusively to the federal Parliament under s. 91(27) of the Constitution Act, 1867.

Held (Wilson and Cory JJ. dissenting in part): The appeal should be dismissed.

Per L'Heureux‑Dubé, Gonthier and McLachlin JJ.: Sections 3 and 4 of the Public Inquiries Act do not empower the Commission to compel the justices who sat on the Marshall Reference to testify as to the grounds for their decision. Provisions of a statute dealing with the same subject should be read together, where possible, so as to avoid conflict. Accordingly, the Commission is granted power to "summon" any person under s. 3 but it does not have greater powers under s. 4 than those exercisable by a Supreme Court judge sitting on a civil case when enforcing attendance and compelling witnesses to testify against their will.

Judicial independence requires that relations between the judiciary and other branches of government not impinge on the essential "authority and function" of the court. The authorities and the general principles of judicial independence which have been summarized by this Court in Valente v. The Queen and Beauregard v. Canada clearly establish that a judge of the Supreme Court hearing a civil case would not have the power to compel another judge to testify as to how and why that judge arrived at his or her conclusions. That is a matter of privilege going to judicial impartiality in adjudication and to the role arbiter and protector of the Constitution. Similarly, one judge cannot compel another to testify as to why a particular judge sat on a particular case. That matter goes to the administrative or institutional aspect of judicial independence. The courts must control administrative matters related to adjudication without interference from the Legislature or executive. To allow the executive a role in selecting what judges hear what cases or to inquire after the fact would constitute an unacceptable interference with the independence of the judiciary. The requirements of s. 4 of the Public Inquiries Act are not met.

The concepts of judicial independence and the supremacy of Parliament must be balanced. The power in the courts to control their own administration is not absolute. Circumstances can exist where the Legislature or Parliament could enact laws relating to the functioning of the courts or enquire into the conduct of particular judges. Parliament can also impeach a federally appointed judge for dereliction of duty. The fundamental principle of judicial independence, at least to this extent, must leave scope for the principle of Parliamentary supremacy. Yet, Parliament and the Legislatures cannot act so as to trammel the authority and function of the courts.

The language of s. 3, read alone, is not specific enough to override the fundamental principle of judicial immunity from being compelled to testify about the decision‑making process or the reasons for the composition of the court in a particular case.

The phrase "administration of justice" in s. 92 of the Constitution Act, 1867 should be construed as relating to both civil and criminal justice and encompasses a provincially appointed commission to inquire into a Reference by the federal Minister of Justice under s. 617(b) of the Criminal Code. Such an inquiry does not trench on the exclusive federal power over the criminal law. The inquiry, subject to the caveat that no provincially constituted commission of inquiry can inquire into the actual management or operation of the federal activity or entity in question, does not constitute an attempt to interfere with the valid federal interest in the enactment of and provision for a uniform system of procedures and rules governing criminal justice in the country.

Per Lamer J.: What evidence a court relies on for arriving at a given conclusion is an integral part of the adjudicative process. This requires decisions pertaining to the admissibility of evidence, an assessment of the weight to be given to it and a determination of its effect on the outcome of the case. The extent to which a court reveals these matters in a judgment is equally an integral part of the adjudicative process. A court, if it were not to disclose the basis for a decision in a judgment and, when relevant, the evidence relied on, may well, in some circumstances though surely not in all, have failed in its adjudicative duties but not in any administrative duty, and the executive cannot compel the justices as witnesses to clarify and add to their judgment.

A Chief Justice's reasons for determining who sits on which case is protected by a qualified judicial privilege. This privilege may, but not always, give way to disclosure only when an investigation into the conduct or integrity of the Chief Justice or other justices is being conducted.

The power to investigate into the conduct or integrity of judges lies with the federally created Canadian Judicial Council. The commission accordingly is not empowered to ask any question pertaining to the composition of a particular bench and the reasons for which it was set up in a particular manner.

Per La Forest J.: The Nova Scotia Public Inquiries Act was not specific enough to override the fundamental principle of judicial immunity from being compelled to testify about the decision‑making process or the reasons for the composition of the court in a particular case.

The Act, even if sufficiently explicit, would appear to fall outside provincial competence to that extent. The constitutional underpinnings for the independence of the judiciary lie in the judicature provisions in Part VII of the Constitution Act, 1867 and it is significant that all the powers relating to the superior courts are at the federal level. The status, independence and judicial functions of these judges would thereby fall outside provincial competence, though a province may legislate in respect of their purely administrative functions. The federal Parliament is competent to enact legislation necessary to satisfy the need for credible complaint procedures to ensure continued public confidence in the administration of justice.

Apart from the division of powers issue, the institutional structure and modalities of the commission were not really tailored to the task of inquiring into judicial functions. Consequently, it might otherwise well run afoul of the letter and purpose of the judicature provisions of the Constitution.

Per Wilson J. (dissenting in part): The judiciary enjoys an absolute immunity with respect to its adjudicative function. Its immunity with respect to its administrative function, however, is not absolute and must give way in circumstances where the administration of justice is itself under review by a body with the constitutional authority to undertake such a review. While questions as to the composition of a panel would in normal circumstances be protected by a qualified immunity, to permit them in the exceptional circumstances of this case would not impair the authority of Chief Justices in general to assign judges to particular cases. The question needed to be asked in this case given the prima facie case of lack of impartiality, the fact that the judicial system had in some way gone awry, and the public perception that the doctrine of judicial immunity may be being used to protect the judiciary rather than the justice system. While questions as to why the final record ended up as it did go directly to the judiciary's adjudicative function as to which there is an absolute immunity, questions as to what as a factual matter comprised the final record on which justice was administered in the case are permissible.

The doctrine of judicial immunity was the only constitutional basis for prohibiting the questions in issue from being asked. Part VII of the Constitution Act, 1867, while it places the responsibility for certain specific matters within federal jurisdiction, does not prevent provinces from inquiring into aspects of the administration of justice that do not fall squarely within Part VII of the Constitution Act, 1867. A distinction must be made between a Commission inquiring into the administration of justice in a province (including administrative decisions of the judiciary as one of the participants in the administration of justice) and one looking into the conduct of judges which is clearly a federal matter. Issues that are not specifically related to alleged improprieties on the part of judges and that are related to the administration of justice remain subject to provincial jurisdiction and may properly be considered by bodies like the Commission.

Per Cory J. (dissenting in part): The terms of the appointment of the Commission were broad enough to include the Reference to the Court of Appeal on Marshall's wrongful conviction and the eventual payment of compensation to him.

All privileges of exemption from the duty to testify are exceptional and ought to be discountenanced unless there is good reason plainly shown for their existence. There is, however, for very good reason an absolute privilege accorded to the judiciary exempting them from testifying as to their mental processes in arriving at a judgment or as to how they reached a decision in any case that came before them. It is vital to the preservation of our system of justice that a judge not be required to answer any questions as to how a decision was reached. The reasons and the decisions speak for themselves. As well, a large measure of judicial immunity from testifying in respect of the administration of the work of the courts is an important and necessary factor in the functioning of the judicial system.

An important distinction must be drawn between the two types of judicial immunity. The privilege of the judiciary not to be questioned as to the decisions they have made on cases is of fundamental importance and absolute in nature. The privilege as to the administration of the courts, however, is not of the same fundamental importance and is qualified in nature. It is an adjunct to the adjudicative privilege.

The qualified privilege of judges on administrative matters exists at common law and will clearly apply in most situations. It must give way, however, when it is necessary to reaffirm public confidence in the administration of justice. In exceptional situations, such as those in this case, that qualified privilege should not and cannot prevail. The Commission, pursuant to ss. 3 or 4 of the Public Inquiries Act, has jurisdiction to compel attendance in order to pose and receive answers as to the composition of the panel hearing the Reference and as to the record relied upon by the Court of Appeal in reaching its conclusions.

Questions as to what factors constituted a miscarriage at the trial came within the absolute immunity pertaining to judgments and reasons for judgment.

Cases Cited

By McLachlin J.

Applied: Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673; Beauregard v. Canada, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56; considered: Knowles' Trial (1692), 12 How. St. Tr. 1167; referred to: Zanatta v. McCleary, [1976] 1 N.S.W.L.R. 230; Duke of Buccleuch v. Metropolitan Board of Works (1872), 41 L.J. Ex. 137; McKinley v. McKinley, [1960] 1 All E.R. 476; Scott v. Smith (1931), 1931 CanLII 706 (NB CA), 4 M.P.R. 23; Re Clendenning and Board of Police Commissioners for City of Belleville (1976), 1976 CanLII 696 (ON SC), 75 D.L.R. (3d) 33; Re Reinking (1984), 1984 CanLII 2034 (ON SC), 3 O.A.C. 137; Family and Children's Services v. P. B. and M. B. (1985), 1985 CanLII 5012 (ON SC), 49 R.F.L. (2d) 55; R. v. Moran (1987), 1987 CanLII 124 (ON CA), 21 O.A.C. 257; Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON SC), 64 O.R. (2d) 8; Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739; Di Iorio v. Warden of Montreal Jail, 1976 CanLII 1 (SCC), [1978] 1 S.C.R. 152; Attorney General (Que.) and Keable v. Attorney General (Can.), 1978 CanLII 23 (SCC), [1979] 1 S.C.R. 218; O'Hara v. British Columbia, 1987 CanLII 45 (SCC), [1987] 2 S.C.R. 591.

By La Forest J.

Referred to: Chandler, U.S. District Judge v. Judicial Council of the 10th Circuit, 398 U.S. 74 (1970); Landreville v. The Queen, 1977 CanLII 3107 (FC), [1977] 2 F.C. 726; In the Matter of Certain Complaints under Investigation by an Investigating Committee of the Judicial Council of the Eleventh Circuit, 783 F.2d 1488 (11th Cir. 1986).

By Wilson J. (dissenting in part)

Attorney General of Canada v. Law Society of British Columbia, 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307.

By Cory J. (dissenting in part)

R. v. Marshall (1983), 1983 CanLII 5140 (NS CA), 57 N.S.R. (2d) 286; Knowles' Trial (1692), 12 How. St. Tr. 1167; R. v. Moran (1987), 1987 CanLII 124 (ON CA), 21 O.A.C. 257; Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673; In the Matter of Certain Complaints under Investigation by an Investigating Committee of the Judicial Council of the Eleventh Circuit, 783 F.2d 1488 (11th Cir. 1986); Carey v. Ontario, 1986 CanLII 7 (SCC), [1986] 2 R.C.S. 637; United States v. Nixon, 418 U.S. 683 (1974).

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 11(d).

Constitution Act, 1867, ss. 91(27), 92(14), 96, 99, 100, 101, 129.

Criminal Code, R.S.C. 1970, c. C‑34, s. 617(b).

Judges Act, R.S.C., 1985, c. J‑1, Part II.

Public Inquiries Act, R.S.N.S. 1967, c. 250, ss. 3, 4.

Supreme Court Act, R.S.C. 1970, c. S‑19.

Authors Cited

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Butterworths, 1983.

Lederman, W. R. "The Independence of the Judiciary" (1956), 34 Can. Bar Rev. 769, 1139.

Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8 (McNaughton rev.) Boston: Little, Brown, 1961.

APPEAL from a decision of the Nova Scotia Supreme Court, Appeal Division (1988), 1988 CanLII 7144 (NS CA), 87 N.S.R. (2d) 443, dismissing an appeal from a decision of Glube C.J. (1988), 1988 CanLII 7124 (NS SC), 43 C.C.C. (3d) 287, granting a declaration with respect to judicial immunity and quashing Orders to Attend issued by a provincial royal commission. Appeal dismissed, Wilson and Cory JJ. dissenting in part.

James MacPherson, B. A. Crane, Q.C., and W. Spicer, for T. Alexander Hickman, Lawrence A. Poitras and Gregory Thomas Evans.

Clayton Ruby, for Donald Marshall, Jr.

R. J. Downie, Q.C., and F. P. Crooks, for Ian M. MacKeigan, Gordon L. S. Hart, Malachi C. Jones, Angus L. Macdonald and Leonard L. Pace.

Robert Décary, Q.C., and Angéline Thibault, for the Attorney General of Quebec.

Jamie W. S. Saunders and Peter M. Rogers, for the Attorney General of Nova Scotia.

//Lamer J.//

The following are the reasons delivered by

Judgment of Lamer J.

LAMER J. -- I have read the reasons of my colleagues Justices Wilson, La Forest, Cory and McLachlin. While I agree with the principles set out in my brother Cory's judgment, when applying them to this case, I reach the same conclusion as my colleague McLachlin J. and, accordingly, would dismiss this appeal.

Cory J. refers to the "second question" to be put to the justices as relating to "the composition of the record that was in fact before the Court of Appeal on the Reference". I prefer to address the nature of the query to be put to the justices by referring to Mr. Orsborn's letter to the Chief Justice, which reads it as follows:

After our own review, we are unsure of the record relied on by the Court in reaching its conclusions. It is not clear what affidavits were before the Court -- reference is made in the reasons to certain affidavits but the transcript suggests that the affidavits were not in fact before the Court. In addition, we would like to understand why the affidavits (and cross-examination) of the potential police witnesses were not admitted, given the possible importance of these witnesses in determining why 1971 witnesses were now recanting.

McLachlin J., in her reasons, has set out in some detail the events that took place regarding the adduction of fresh evidence. To be noted is the fact that that decision was "reserve[d] . . . on the applications to receive in evidence any of the affidavits tendered". The decision to reserve was made by a different panel than that which heard the oral evidence and decided the reference. When giving judgment on the merits of the reference, the justices gave no indication as to whether any or all of the affidavits tendered were finally admitted by them as part of the record. Another one of the Commission's concerns is the fact that the reasons of the justices refer to certain affidavits while the transcripts seem to indicate that they would appear not to have been before the court. Under these particular circumstances, a query as to "the record relied on by the Court in reaching its conclusions", can mean one of two things. It could mean, what was the record the court retired with when reserving judgment. If that is the case, there surely is no need to call upon the justices. Indeed, the clerk of this court of record can be called upon to file the court's record. But, obvious to me, this is not what is sought, as is apparent when one reads Mr. Orsborn's letter. Mr. Orsborn wants to know which affidavits were admitted and formed therefore part of the record once the evidentiary interlocutory decisions had been made. He also wants to know if the court relied on evidence that it had decided not to receive or on evidence that was not properly before the court for any other reason. Putting the question in other words: how did you rule on the admissibility of the affidavits the previous panel had reserved on, and, did you rely on evidence that was not properly before you?

What evidence a court relies on for arriving at a given conclusion is an integral part of the adjudicative process. This requires decisions pertaining to the admissibility of evidence, and then an assessment of the weight to be given to it and its effect on the outcome of the case applying the rules pertaining to the burden of presentation of proof and that of persuasion. The extent to which a court reveals these matters in a judgment is equally an integral part of the adjudicative process. Of course, courts should normally disclose in their judgment the basis for their decisions and, when relevant, the evidence it has decided to rely upon. However, if a court chooses not to do so, it may well, in some circumstances though surely not in all, have failed in its adjudicative duties but not in any administrative duty, and the justices cannot be compelled by the executive as witnesses to clarify and add to their judgment.

There are procedures through which courts can be invited to do so, such as applications for rehearings where courts are asked to reopen the case and make determinations they have overlooked; there are also the various review and appeal procedures where such lacunae can to varying degrees be remedied. To these adjudicative problems there are only judicial remedies, with the exception of disciplinary measures, which of course, are not at issue in this case. But, as regards the justices, they enjoy in that aspect of their functions absolute immunity against being compelled as witnesses before a commission of inquiry such as this one.

The "first question" is that which is intended to be put to the Chief Justice, asking him why Pace J.A. was made part of the panel. A Chief Justice's reasons for determining who sits on which case needs to be protected from inquiries and for that reason, benefits from the judicial privilege. But, as Cory J. states, it is a qualified privilege. In, but only in, exceptional circumstances this privilege will have to give way to disclosure. In my view, the only situation where this may, but not always, occur, is when an investigation into the conduct or integrity of the Chief Justice or other justices is being conducted.

Since this commission of inquiry has no power to investigate into the conduct or integrity of judges, a matter that is for the federally created Canadian Judicial Council, the Commission is not empowered to ask any questions pertaining to the composition of a particular bench and the reasons for which it was set up in a particular manner.

I hasten to add that the preceding considerations are in no way intended to indicate my views as to whether there was here any failure as regards adjudicative duties, any improper conduct on the part of the justices, or whether an inquiry into the conduct of the judges should or should not be carried out by the Canadian Judicial Council. They are only in answer to the issues raised by the Commission's attempt to require the justices to answer certain questions that could only, when appropriate, be put to them in that setting and by that body.

In the result, I would dismiss this appeal.

//Wilson J.//

The following are the reasons delivered by

Judgment of Wilson J.

WILSON J. (dissenting in part) -- I write in support of the judgment of my colleague, Justice Cory, on this appeal. I agree with him and with my other colleagues, that the judiciary enjoys an absolute immunity with respect to its adjudicative function. I also agree with him that the judiciary's immunity with respect to its administrative function is not absolute and that it must give way in circumstances where the administration of justice is itself under review by a body with the constitutional authority to undertake such a review. It would be anomalous indeed if in a case such as the present all aspects of the justice system leading up to the wrongful conviction of Mr. Marshall, his subsequent release and his receipt of compensation could be inquired into by the Commission except the administrative decisions made by the judiciary.

I appreciate the concern expressed by my colleague, Justice McLachlin, that it would seriously undermine the independence of the judiciary from the executive branch of government if the executive could control or interfere with the authority of Chief Justices to assign judges to sit on particular cases. But in my view the judiciary's qualified immunity in respect of administrative matters would preclude this. This is not, however, the issue confronting us. What the Commission wishes to do, as I understand it, is inquire into why the former Attorney General was assigned to the panel given the prima facie case of lack of impartiality on his part. In other words, we have here a public perception that, in the absence of a satisfactory explanation, this may have been one of the things which went wrong in the Marshall case. I believe that since the very purpose of the Marshall inquiry is to find out what went wrong in the Marshall case, the public interest requires that this question be asked and answered.

I do not share the fear expressed by McLachlin J. that, if the Chief Justice of Nova Scotia is required to answer this question, Chief Justices generally will be impaired in their freedom to assign judges to particular cases. In this connection two important facts must be borne in mind. The first is that the question is sought to be asked in the context of an investigation into the administration of justice triggered by the fact that the system in some way went awry. This does not happen very often but, when it does, it is obviously a matter of great public concern. The second important fact is that we are dealing here with a prima facie case of lack of impartiality. If the question is not asked and answered in a satisfactory way the public perception may well be that the composition of the panel was a factor in the reasons for judgment of the Court of Appeal and in the quantum of compensation ultimately awarded to Mr. Marshall. When there is a real risk that judicial immunity may be perceived by the public as being advanced for the protection of the judiciary rather than for the protection of the justice system, the public interest in my view requires that the question be asked and answered.

I also agree with Cory J. that the Commission cannot determine whether justice was properly administered in the Marshall case if questions cannot be put to the Court of Appeal as to the content of the record on which its decision was reached. I agree with my colleague, Justice Lamer, that the judges cannot be asked why the final record ended up as it did. In other words, the judges cannot be asked why they admitted this and rejected that because this goes directly to their adjudicative function as to which they enjoy an absolute immunity. They can, however, in my view, be asked what as a factual matter comprised the final record for purposes of their decision. The record is, after all, the substratum upon which justice is administered in any case.

I have read with interest the reasons of my colleague, Justice La Forest, expressing concern over what he sees as an additional constitutional issue raised by this case. In my view, a distinction must be made between a Commission created for the purpose of inquiring into the administration of justice in a province and a Commission or other entity created for the purpose of looking into the conduct of judges. In the case of the latter I completely agree with my colleague that we would be clearly in the federal domain. This does not mean, however, that a Commission properly established to conduct an inquiry into the administration of justice in a province must eliminate the administrative decisions made by the judiciary, one of the participants in the administration of justice, from all consideration. To exclude administrative decisions made by the judiciary from the range of issues that such a Commission may consider on the ground that the federal government has already created a body to inquire into complaints against superior court judges would be to construe s. 101 of the Constitution Act, 1867 and the provisions of the Judges Act, R.S.C., 1985, c. J-1, Part II, in an unusually broad manner that is inconsistent with the purpose and history of s. 92(14) and Part VII of the Constitution Act, 1867.

This Court has previously commented on the special status of superior courts, noting that "They cross the dividing line, as it were, in the federal-provincial scheme of division of jurisdiction . . . ." (Justice Estey in Attorney General of Canada v. Law Society of British Columbia, 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307, at p. 327). Moreover, Professor Hogg has noted that prior to Confederation each of the uniting provinces had its own system of courts, that "All these courts were expressly continued after confederation by s. 129 of the Constitution Act, 1867, and their organization and jurisdiction remained the responsibility of the provinces by virtue of s. 92(14)": see Constitutional Law of Canada, 2nd ed., at p. 134. Thus, provincial governments have always had a significant and legitimate interest in the role of superior courts in the administration of justice. While Part VII of the Constitution Act, 1867 places the responsibility for certain specific matters (such as the appointment of superior court judges) within federal jurisdiction, it certainly does not prevent provinces from inquiring into aspects of the administration of justice that do not fall squarely within Part VII of the Constitution Act, 1867. Admittedly, s. 101 of the Constitution Act, 1867 provides the federal government with power to create courts that are exceptions to the otherwise unitary character of the system governing the administration of justice in Canada and the Canadian Judicial Council is an example of an exceptional body created to deal with complaints regarding the conduct of judges. But issues that are not specifically related to alleged improprieties on the part of judges and that are related to the administration of justice remain, in my view, subject to provincial jurisdiction and may properly be considered by bodies like the Commission.

This Commission is not conducting an inquiry into the conduct of the judges. The questions sought to be asked of them as to the composition of the panel and the content of the record are being raised solely for the purpose of determining where the administration of justice went awry. We cannot pre-judge the answers which might be given if the questions were permitted to be asked. It is in my view totally inappropriate, therefore, to treat this inquiry as if it were an investigation into allegations of impropriety against federally appointed judges. In my view, the only constitutional basis for prohibiting the questions in issue from being asked would be the doctrine of judicial immunity and, for the reasons given, I do not think that in the administrative area the doctrine can prevail over the greater public interest in disclosure in the rather special circumstances of this case.

I accordingly agree with the disposition of this appeal proposed by my colleague, Cory J.

//La Forest J.//

The following are the reasons delivered by

Judgment of La Forest J.

LA FOREST J. -- I have had the advantage of reading the reasons of my colleagues, Cory and McLachlin JJ. With respect, I agree with McLachlin J. that the Nova Scotia Public Inquiries Act, R.S.N.S. 1967, c. 250, is not specific enough to override the fundamental principle of judicial immunity from being compelled to testify about the decision-making process or the reasons for the composition of the court in a particular case.

Though the point was not argued, were the Act sufficiently explicit, I would tend to the view that it was, to that extent, beyond the legislative capacity of the province. The judicature provisions in Part VII of the Constitution Act, 1867 provide the constitutional underpinnings for the independence of the judiciary; the classic discussion of these provisions is of course that of Professor W. R. Lederman, "The Independence of the Judiciary" (1956), 34 Can. Bar Rev. 769, 1139. These provisions comprise a virtual code governing the constitutional status of the superior courts, and it is significant that all the powers relating to them are at the federal level, whether it be appointment (s. 96), tenure during good behaviour until 75 with the power of removal provided at the highest level (s. 99), and the fixing of salaries, allowances and pensions by Parliament (s. 100). In my view, the status and independence, and judicial functions of these judges thereby fall outside provincial competence, though a province may, of course, legislate in respect of their purely administrative functions under its power to legislate respecting the administration of justice (s. 92(14), Constitution Act, 1867).

In speaking of the judicature provisions of the Constitution Act, 1867 as a code, I do not mean to suggest that there is no constitutional room for mechanisms for dealing with inquiries or complaints relating to the performance of judicial functions that are either not sufficiently serious as to warrant proceedings for removal, or which may precede or assist the conduct but not constitute an impediment to the proper functioning of such proceedings, or effectively amount to a substitute for them. The size and complexity of the judicial system have now become too substantial to consider each judge to be completely independent or "sovereign" in Douglas J.'s phrase (dissenting in Chandler, U.S. District Judge v. Judicial Council of the 10th Circuit, 398 U.S. 74 (1970), at p. 136). Sole reliance on the power of removal to deal with such issues is no longer realistic. Though I take Douglas J.'s point that every judge must work in an institutional setting that supports judicial independence even from other judges, I agree with Cory J. that there is need for credible complaint procedures to ensure continued public confidence in the administration of justice. In my view, since this matter appears, as I noted, to fall outside provincial competence so far as it affects the status, independence and judicial functions of superior court judges, the federal Parliament may, under its general power under s. 91 of the Constitution Act, 1867, legislate in this area; see Landreville v. The Queen, 1977 CanLII 3107 (FC), [1977] 2 F.C. 726 (T.D.), per Collier J., at p. 746. (I say nothing, however, about whether the commission considered there met other constitutional requirements.) For certain matters, at least, it may also be necessary or desirable to enlist in aid Parliament's power under s. 101 of the Constitution Act, 1867 to create an additional court for the better administration of the laws of Canada. That is what was done when the Canadian Judicial Council (the duties of which include the investigation of complaints and allegations against federally appointed judges) was established in 1971: see Judges Act, R.S.C., 1985, c. J-1, Part II.

To conclude, bodies which are set up or which in the course of their duties are required to undertake an examination of the conduct of a superior court judge in the exercise of judicial functions must be so constructed as to respect the letter and the underlying purpose of the judicature provisions of the Constitution. Nor can investigatory bodies act in a manner that might materially impair the protection accorded by s. 99 or the independence and impartiality of the judiciary. Many of the points to bear in mind in structuring such bodies are sensitively described in a case cited by Cory J.: In the Matter of Certain Complaints under Investigation by an Investigating Committee of the Judicial Council of the Eleventh Circuit, 783 F.2d 1488 (11th Cir. 1986). Though the relevant United States constitutional provisions vary to a degree from our own, much of what is said there is equally applicable in this country. While the commission under consideration is undeniably manned by very able and experienced jurists, they are, of course, not acting in that capacity here, and the institutional structure and modalities of the commission are not really tailored to the task of inquiring into judicial functions such as those in question in the present case. As a result, quite apart from the division of powers question, such a commission may well run afoul of the judicature provisions of the Constitution.

I should add that I also agree with McLachlin J.'s views that the commission's mandate does not trench on the criminal law power.

I would dismiss the appeals.

//McLachlin J.//

The judgment of L'Heureux-Dubé, Gonthier and McLachlin JJ. was delivered by

Judgment of L'Heureux-Dubé, Gonthier and McLachlin JJ.

MCLACHLIN J. -- These appeals raise the question of whether an investigative commission of inquiry can compel judges involved in the matters being investigated to testify as to the reasons for their judicial decision and the composition of the panel that heard the case.

Background

The Actors Involved

Background

It will be useful to first identify the various actors involved in these appeals.

The Actors Involved

On November 5, 1971, Donald Marshall, Jr., a 17-year-old native adolescent boy around whom most of these appeals turn, was convicted of the murder of Sandford William Seale, who had died from knife wounds inflicted on May 28-29, 1971. Marshall consistently maintained his innocence from the day he was first arrested, throughout his trial and subsequent imprisonment, to the date of his eventual release in May of 1983. He was released after favourable resolution of a reference made by the federal Minister of Justice to the Supreme Court of Nova Scotia, Appeal Division, pursuant to s. 617(b) (now s. 690(b)) of the Criminal Code, R.S.C. 1970, c. C-34. He had been in prison some 11 years before his claim of innocence was finally upheld. The failure of the Nova Scotian justice system in Donald Marshall, Jr.'s case led the Attorney General of Nova Scotia in October 1986 to establish a Royal Commission pursuant to the Public Inquiries Act, R.S.N.S. 1967, c. 250, with a mandate to inquire into the prosecution of, and subsequent handling of, Donald Marshall, Jr.'s case.

T. Alexander Hickman (Chief Justice of the Trial Division, Supreme Court of Newfoundland), Lawrence A. Poitras (Associate Chief Justice of the Superior Court of Québec) and Gregory Thomas Evans (Justice of the High Court of Ontario) are the Commissioners appointed by the Attorney General of Nova Scotia under the Public Inquiries Act to inquire into the prosecution of Donald Marshall, Jr.

Ian M. MacKeigan (Chief Justice of Nova Scotia (as he then was)), Gordon L. S. Hart, Malachi C. Jones, Angus L. Macdonald and Leonard Pace are the five judges who heard and determined the Reference of Donald Marshall, Jr.'s conviction. It should be noted that Pace J.A. was the Attorney General of Nova Scotia at the time that Marshall was convicted.

The Attorney General is the last actor involved in these proceedings. He appears before this Court as the representative of Her Majesty's Government for the Province of Nova Scotia.

The Trial of Donald Marshall, Jr. and the Immediately Ensuing Events

As I have already mentioned, Donald Marshall, Jr. was wrongly convicted of a murder he did not commit. During his trial, two "eye witnesses", Maynard Chant and John Pratico, testified that they saw Marshall stab Seale. Another witness, Patricia Harriss, testified that she had seen Seale and Marshall together in the area where the stabbing of Seale occurred just prior to the time of that incident. Marshall testified in his own defence that he and Seale had a conversation with two people who were dressed like priests and that one of these people had stabbed Seale.

Ten days after Marshall's conviction, James MacNeil went to the Sydney police and advised that on the night of the stabbing, he and Roy Ebsary were attacked by Seale and Marshall and that Seale had been stabbed by Ebsary during the robbery attempt. MacNeil and Ebsary were the two individuals who matched the description given at trial by Marshall and given to the Sydney police by Marshall the day following the stabbing. Neither MacNeil nor Ebsary had been located during the investigation or prior to the trial.

On the same day that MacNeil made these admissions to the Sydney police, the police located and interviewed Ebsary and some of his relatives. They reported to the Crown Prosecutor who, in turn, reported to his superiors in the Attorney General's office in Halifax. The Attorney General at this time was the Honourable Leonard Pace. The investigation was turned over to the R.C.M.P.

The R.C.M.P. conducted polygraph tests of MacNeil and Ebsary and concluded that Ebsary was telling the truth when he said that he had not stabbed Seale and that MacNeil's evidence was inconclusive. The results of these tests were relayed to the Crown Prosecutor and, according to evidence now before the Commission, from the Crown Prosecutor to the Attorney General's office, possibly to Attorney General Pace himself. The Crown Prosecutor is now dead and, therefore, unavailable to testify as to this possible conversation with Attorney General Pace.

The Re-investigations and the Reference to the Appeal Division of the Supreme Court of Nova Scotia

In 1982, Marshall's lawyer provided the Sydney police with new information. They asked the R.C.M.P. and Crown Prosecutor of Cape Breton to carry out a second investigation of the Marshall affair. During this investigation, former witnesses Chant, Pratico and Harriss all recanted their evidence at trial and stated that they had been under pressure by certain members of the Sydney Police Department to tell the stories they had told at trial. On the basis of this fresh evidence, the federal Minister of Justice, the Honourable Jean Chrétien, referred the conviction to the Appeal Division of the Supreme Court of Nova Scotia, pursuant to s. 617(b) of the Criminal Code, for a redetermination.

Both Marshall and the Crown applied for leave to introduce fresh evidence. Affidavits in support of the applications were filed from Chant, Pratico and Harriss, John F. MacIntyre and William Urquhart (Sydney Police Officers in charge of the Marshall investigation), Stephen Aronson, Dr. M. A. Mian, Terence Patrick Gushue, Barbara Mary Floyd, Sandra V. Cotie, James William MacNeil, Gregory Allan Ebsary, Mary P. Ebsary, Wayne Robert Magee, Donna Elaine Ebsary, Adolphus James Evers, Keith Beaver, George William MacNeil, Simon J. Khattar, C. M. Rosenblum, Harry F. Wheaton and Donald Marshall, Jr. The applications were heard by a bench consisting of the Chief Justice and Hart, Jones, Morrison and Macdonald JJ.A. The applications were allowed in respect of certain witnesses, namely Marshall himself, Chant, Harriss, James MacNeil, Donna Ebsary, Gregory Ebsary and Adolphus Evers. In respect of the other applications to introduce fresh evidence, both oral or by way of affidavits, the Court said:

We reserve decision on the applications made today for the examination of persons other than those named above. We also reserve decision on the applications to receive in evidence any of the affidavits tendered.

The Court then heard evidence on December 1 and 2, 1982. The Bench consisted of the Chief Justice and Hart, Jones, Macdonald and Pace JJ.A.

On May 10, 1983, the Court of Appeal rendered its judgment. It quashed Marshall's conviction and directed an acquittal. At the end of its judgment, the Court makes the following comments ((1983), 1983 CanLII 5140 (NS CA), 57 N.S.R. (2d) 286, at pp. 321-22):

Donald Marshall, Jr. was convicted of murder and served a lengthy period of incarceration. That conviction is now to be set aside. Any miscarriage of justice is, however, more apparent than real.

In attempting to defend himself against the charge of murder Mr. Marshall admittedly committed perjury for which he still could be charged.

By lying he helped secure his own conviction. He misled his lawyers and presented to the jury a version of the facts he now says is false, a version that was so far-fetched as to be incapable of belief.

By planning a robbery with the aid of Mr. Seale he triggered a series of events which unfortunately ended in the death of Mr. Seale.

By hiding the facts from his lawyers and the police Mr. Marshall effectively prevented development of the only defence available to him, namely, that during a robbery Seale was stabbed by one of the intended victims. He now says that he knew approximately where the man lived who stabbed Seale and had a pretty good description of him. With this information the truth of the matter might well have been uncovered by the police.

Even at the time of taking the fresh evidence, although he had little more to lose and much to gain if he could obtain his acquittal, Mr. Marshall was far from being straightforward on the stand. He continued to be evasive about the robbery and assault and even refused to answer questions until the court ordered him to do so.

There can be no doubt but that Donald Marshall's untruthfullness through this whole affair contributed in large measure to his conviction.

We accordingly allow the appeal, quash the conviction and direct that a verdict of acquittal be entered. [Emphasis added.]

After his acquittal, Marshall's solicitors sought compensation from federal and provincial authorities for the time that Marshall had spent in prison. Marshall was eventually paid approximately $250,000 by the provincial government and executed a complete release of all claims he might have against that government. It is evident from the materials before the Court, however, that the comments of the Court of Appeal had an impact on the quantum of that payment.

The Institution of the Royal Commission

On October 28, 1986, the Governor in Council instituted the present Royal Commission with a mandate to "inquire into, report their findings, and make recommendations to the Governor in Council respecting the investigation of the death of Sandford William Seale on the 28th-29th day of May, A.D., 1971; the charging and prosecution of Donald Marshall, Jr. with that death; the subsequent conviction and sentencing of Donald Marshall, Jr. for the non-capital murder of Sandford William Seale for which he was subsequently found to be not guilty; and such other related matters which the Commissioners consider relevant to the Inquiry".

In his opening remarks on September 9, 1987, Chairperson Hickman cited these terms of reference and stated:

These Terms of Reference, therefore, include the murder investigation, the charging of Mr. Marshall, the conduct of the trial and the appeal, Mr. Marshall's years in prison, the eventual acquittal by the Nova Scotia Court of Appeal and the process through which compensation was granted to him in 1984. The R.C.M.P. reinvestigations of Mr. Seale's murder will also be reviewed. This will cover the period from the time [of] Mr. Seale's death in 1971 to the time this Royal Commission was appointed.

In order to develop meaningful recommendations, all contributing factors must be carefully and critically examined in the context of the current state of administration of justice in Nova Scotia. As I indicated in my opening statement at the Hearings held in May, to consider the matter of funding, we will also examine among other things, the role of the Attorney General as a member of Cabinet, the relationship of Crown prosecutors with defence counsel and with the police, as well as related matters. In addition, I advised that we intend to give consideration to the allegations that minorities of this Province are not treated equitably by the Justice system. It is our ultimate aim to make recommendations which will ensure that the unfortunate events surrounding Mr. Marshall will not be repeated; to do this we must satisfy ourselves that the present state of the administration of criminal justice in Nova Scotia is sound. We will not avoid a discussion of these issues.

In the same opening remarks, the Commission indicated that it had given full standing to, amongst others, Donald Marshall, Jr. and the Attorney General of Nova Scotia and the Department of the Attorney General.

Earlier, in April of 1987, Attorney General Terence Donahoe himself described the mandate of the Commission in the Legislative Assembly in the following terms:

[The Commissioners'] business is to hear what representations are made to [them] and to make a judgment on the basis of those representations as to what their opinion then is as to the state of the administration of justice during the relevant period of time, namely, the time the unfortunate circumstances implicating or involving Mr. Donald Marshall, Jr. began and the time the commission opens its inquiry.

The Questions Sought to be Asked of the Reference Justices

Since the opening of the Commission's Inquiry, it has heard from numerous witnesses, including the witness who believes that he overheard the Crown Prosecutor (now deceased) discuss over the telephone with the then Attorney General Pace the information provided to the police by MacNeil ten days after Marshall's conviction.

As a result of this and other testimony before it, the Commission sought to question the justices who had sat on the Reference. On January 5, 1988, Counsel for the Commission wrote to Justice MacKeigan of the Court of Appeal, and requested his attendance. Similar letters were sent to the other members of the Bench that heard that Reference. The letter to MacKeigan J.A. reads as follows:

January 5, 1988

Hon. Mr. Justice Ian MacKeigan

Supreme Court of Nova Scotia

Appeal Division

1815 Upper Water Street

Law Courts Building

Halifax, Nova Scotia

B3J 1S7

My Lord:

As part of its mandate, the Commission is reviewing the 1982 Reference to the Court of Appeal by the Federal Minister of Justice. As a result of this Reference, the Court set aside Mr. Marshall's 1971 conviction and directed that a verdict of acquittal be entered.

The decision in the Reference has been subject to some public criticism for the apparently obiter comments in the last two pages. These comments were directed at Mr. Marshall's responsibility for his predicament and were later referred to frequently by those considering compensation for Mr. Marshall. In addition, a question has been raised concerning the participation in the Reference by Mr. Justice Pace, who was Attorney General at the time of Mr. Marshall's conviction.

On May 10, 1983, your letter of transmittal to the Honourable Mark MacGuigan indicated that the judgment of the Court contained "an opinion on the many factors which led to this miscarriage of justice within the judicial system". We would be interested in knowing precisely what these factors were, if in your opinion there was in fact a miscarriage of justice as contemplated by section 613(1)(a)(iii) of the Criminal Code, and whether the judgment is intended to indicate that there was or was not in fact such a miscarriage of justice.

Commission Counsel believe it is necessary and appropriate to request your attendance at the Inquiry to respond to questions arising from the issues noted above. We are not unmindful of concerns which surround a judge's giving testimony in any proceeding, and we would like to schedule any appearance for early February. George MacDonald and I would be grateful for an early opportunity to meet with you to discuss your attendance before the Inquiry.

Yours very truly,

"David Orsborn"

David B. Orsborn

Commission Counsel

The five justices declined to appear and Orders to Attend were accordingly issued by the Commission. The justices targeted by these Orders to Attend applied for a declaration that the Commission had no authority to compel their attendance by virtue of judicial immunity and for orders quashing the Orders to Attend and prohibiting the Commission from inquiring into their operations, deliberations, decisions and orders in respect of the Reference.

The Proceedings in the Courts Below

Glube C.J. heard the application, granted the declaration, and quashed the Orders to Attend. She based her decision on the common law immunity or privilege enjoyed by judges for over 300 years, a common law immunity which, in her eyes, the Commissioners were compelled to respect by virtue of s. 4 of the Public Inquiries Act. Her judgment is now reported at (1988), 1988 CanLII 7124 (NS SC), 43 C.C.C. (3d) 287 (N.S.S.C., T.D.) At page 333, she states:

I accept that the commission has the authority to compel persons to appear and testify. Although s. 3 of the Act appears to confer unlimited power to subpoena "any person as witness", there is nothing in the section which takes away the common law privileges and immunities of a witness if they exist. Section 4 makes it clear that commissioners only have the powers of a superior court judge. There is no legislation which gives this commission authority to exceed those powers. Thus, I find that this commission has no more power than a superior court.

She went on to review authorities, Canadian and English, which unanimously were of the position that judges were absolutely immune from being compelled to testify in relation to their judicial duties. She accordingly determined, at p. 337, that "the judges must be totally immune from testifying about matters which arose while engaged in their judicial duties, and in particular, the plaintiffs, while hearing the 1982-83 reference; they are not permitted nor obliged to testify".

The Commissioners appealed the Chief Justice's decision to the Appeal Division of the Supreme Court of Nova Scotia. Their appeal was dismissed. Burchell J. (ad hoc) gave judgment for the Court of Appeal ((1988), 1988 CanLII 7144 (NS CA), 87 N.S.R. (2d) 443 (S.C., App. Div.)) He rejected the appellants' arguments that the five justices, being "persons" as that word is used in ss. 3 and 4 of the Public Inquiries Act, can be compelled to testify, saying at p. 444:

That approach [proposed by the Appellants] would ignore an opposite trend that is apparent in a long and unbroken line of cases holding that judges are not compellable witnesses as to any matters touching upon the performance of their judicial duties. Where such immunity was once recognized only in the case of high court justices, it has been extended in Canada in recent years to a variety of functionaries who, although they are not necessarily judges themselves, perform duties that are judicial in function or character.

The appellants appeal to this Court from the decision of the Court of Appeal.

The Issues

These appeals raise two issues. The first issue is whether ss. 3 and 4 of the Public Inquiries Act may be used to compel superior court judges to testify before the Commission, either with respect to how and why they reached their decision or with respect to the composition of the panel that heard the case.

The second question is whether the direction to the Commission to inquire into a reference by the Minister of Justice is ultra vires the Province because it is a matter of criminal law and procedure reserved exclusively to the federal Parliament under s. 91(27) of the Constitution Act, 1867.

I shall deal with each of these questions in turn.

1.Whether the Public Inquiries Act Authorizes the Commission to Compel Judges to Testify

Whether the Public Inquiries Act Authorizes the Commission to Compel Judges to Testify

The appellants submit that the judges who sat on the Marshall appeal are required to testify before the Commission by reason of ss. 3 and 4 of the Public Inquiries Act. The respondents maintain that judges are immune from testifying at common law and as a matter of constitutional principle.

The differences between the parties lie in the interpretation they adopt of ss. 3 and 4 of the Act, and in their different views of the nature of judicial immunity. The appellants contend that s. 3 of the Act, which entitles the Commission to summon "any person" to testify, encompasses judges. While they do not deny that judges may in some circumstances be immune from testifying, they contend that the privilege is not absolute, but relative, subject to override where the public interest demands, as they submit it does in this case.

The respondents, on the other hand, assert that s. 3, read in the context of the Act, and particularly in the context of s. 4, which confines the powers of the Commission to compel testimony to those enjoyed by a judge of the Supreme Court, does not empower the commission to compel judges to testify, given the long-standing and fundamental principle of judicial immunity. Alternatively, they contend that if s. 3 did have this effect, it would be unconstitutional on the ground that it infringes the fundamental constitutional principle of judicial independence.

I turn first to the interpretation of ss. 3 and 4 of the Public Inquiries Act, which provide:

3 The commissioner or commissioners shall have the power of summoning before him or them any persons as witnesses and of requiring them to give evidence on oath orally or in writing (or on solemn affirmation if they are entitled to affirm in civil matters), and to produce such documents and things as the commissioner or commissioners deem requisite to the full investigation of the matters into which he or they are appointed to inquire.

4 The commissioner or commissioners shall have the same power to enforce the attendance of persons as witnesses and to compel them to give evidence and produce documents and things as is vested in the Supreme Court or a judge thereof in civil cases, and the same privileges and immunities as a judge of the Supreme Court of Nova Scotia.

It is my opinion that these sections, interpreted in accordance with the governing rules of construction, do not empower the Commission to compel the judges to testify on the matters at issue in this case.

I start from the fundamental principle of construction that provisions of a statute dealing with the same subject should be read together, where possible, so as to avoid conflict: Driedger, Construction of Statutes (2nd ed. 1983), p. 66. In this way, the true intention of the legislature is more likely to be ascertained. Reading ss. 3 and 4 of the Public Inquiries Act together, it appears that while the Commission is granted power to "summon" any person, when it comes to enforcement of attendance and production -- compelling witnesses to testify against their will -- the Commission does not have greater powers than those exercisable by a Supreme Court judge sitting on a civil case.

This raises the question of whether a Supreme Court judge sitting on a civil case can compel another judge to testify: (a) on how and why he or she arrived at a particular judicial decision; and, (b) on why a certain judge sat on a particular panel of the court. The answer to these questions depends on the nature and character of the principle of judicial independence, to which I now turn.

The Principle of Judicial Independence

This Court has spoken of this cardinal principle, albeit in the context of s. 11(d) of the Charter, in two recent decisions, Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, and Beauregard v. Canada, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56. In Valente v. The Queen, supra, Le Dain J., speaking for the Court at p. 687, observes that the "constitutional" principle of judicial independence has two major elements, an individual element and an institutional element:

It is generally agreed that judicial independence involves both individual and institutional relationships: the individual independence of a judge, as reflected in such matters as security of tenure, and the institutional independence of the court or tribunal over which he or she presides, as reflected in its institutional or administrative relationships to the executive and legislative branches of government.

In Valente v. The Queen, Le Dain trains his mind upon the function of the judiciary as the impartial adjudicator. The discussion turns on the relationship between judicial impartiality -- a state of mind -- and judicial independence -- the relationship between judges and others, particularly others in the executive branch of government. Le Dain J., for the Court, enunciates three "essential conditions" for judicial independence: (1) security of tenure; (2) financial security; and (3) the institutional independence of judicial tribunals regarding matters affecting adjudication. Having enunciated these conditions, Le Dain J. makes it clear that he is not attempting an exhaustive codification of the elements necessary for judicial independence: identification of the essential conditions, he confesses, is a matter of some difficulty; moreover, the conditions themselves may vary and evolve with time and circumstances.

It should be noted that the independence of the judiciary must not be confused with impartiality of the judiciary. As Le Dain J. points out in Valente v. The Queen, impartiality relates to the mental state possessed by a judge; judicial independence, in contrast, denotes the underlying relationship between the judiciary and other branches of government which serves to ensure that the court will function and be perceived to function impartially. Thus the question in a case such as this is not whether the government action in question would in fact affect a judge's impartiality, but rather whether it threatens the independence which is the underlying condition of judicial impartiality in the particular case.

In Beauregard v. Canada, supra, the present Chief Justice (Estey and Lamer JJ. concurring; Beetz and McIntyre JJ. dissenting in part) quotes Le Dain J. in Valente v. The Queen, as above, and explains at p. 70 why the principle of judicial independence is so important in the liberal democratic society that is Canada:

The rationale for this two-pronged modern understanding of judicial independence is recognition that the courts are not charged solely with the adjudication of individual cases. That is, of course, one role. It is also the context for a second, different and equally important role, namely as protector of the Constitution and the fundamental values embodied in it -- rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important. In other words, judicial independence is essential for fair and just dispute-resolution in individual cases. It is also the lifeblood of constitutionalism in democratic societies.

In Beauregard v. Canada, the discussion of the concept of judicial function is broadened to encompass not only the idea of impartial adjudication, but also the notion of the Court as protector of the Constitution. Both these functions must be borne in mind when determining the "reasonable ambit of judicial independence". The test, according to Dickson C.J., is stringent; the courts' function "as resolver of disputes, interpreter of the law and defender of the Constitution" requires that they be completely separate in "authority and function" from all other branches of government.

It is important to note that what is proposed in Beauregard v. Canada is not the absolute separation of the judiciary, in the sense of total absence of relations from the other branches of government, but separation of its authority and function. It is impossible to conceive of a judiciary devoid of any relationship to the legislative and executive branches of government. Statutes govern the appointment and retirement of judges; laws dictate the terms upon which they sit and are remunerated. Parliament retains the power to impeach federally-appointed judges for cause, and enactments such as the Supreme Court Act, R.S.C. 1970, c. S-19, stipulate on such matters as the number of judges required for a quorum. It is inevitable and necessary that relations of this sort exist between the judicial and legislative branches of government. The critical requirement for the maintenance of judicial independence is that the relations between the judiciary and other branches of government not impinge on the essential "authority and function", to borrow Dickson C.J.'s term, of the court. What is required, as I read Beauregard v. Canada, is avoidance of incidents and relationships which could affect the independence of the judiciary in relation to the two critical judicial functions -- judicial impartiality in adjudication and the judiciary's role as arbiter and protector of the Constitution.

To summarize, judicial independence as a constitutional principle fundamental to the Canadian system of government possesses both individual and institutional elements. Actions by other branches of government which undermine the independence of the judiciary therefore attack the integrity of our Constitution. As protectors of our Constitution, the Courts will not consider such intrusions lightly.

Against this background, I turn to the issues on this appeal.

Construction of ss. 3 and 4 of the Public Inquiries Act

Judicial Independence and the Immunity of Judges from Testifying on their Grounds for Decision

The immunity of judges from testifying on the grounds for their decisions is established by the authorities and by the general principles of judicial independence summarized in Valente v. The Queen and Beauregard v. Canada.

I turn first to the cases where the question has arisen. One of the earliest assertions of this immunity dates to Knowles' Trial (1692), 12 How. St. Tr. 1167. Two justices were called before a committee of the House of Lords to explain why they had quashed an indictment for murder. In reply to this request, Holt L.C.J. stated at p. 1179:

I gave judgment as it appears on the record.

It would be a submitting to an arraignment for having given judgment if I should give any reasons here. I gave my reasons in another place at large.

If your lordships report this to the House, I desire to know when you do so, that I may then desire to be heard in point of law.

The judgment is questionable in a proper method, but I am not to be questioned for my judgment.

Mr. Justice Eyres (who then sat on the bench with me, and concurred with me and the other judges) is living. I am not any way to be arraigned for what I do judicially. The judgment may be arraigned in a proper method by writ of error. I might answer if I would, but I think it safest for me to keep myself under the protection the law has given me; I look upon this as an arraignment; I insist upon it, if I am arraigned, I ought not to answer.

Eyres J. also was asked to testify before the Committee and stated at p. 1180:

I remember we adjudged the earl of Banbury's plea to be good in law; he was indicted by the name of Charles Knowles, esq. he pleaded a patent to his grandfather from king Charles the first, and claimed by descent from him; we all held it a good plea, and I was of that opinion, I own it, it was according to my judgment and conscience.

The king intrusts me with the administration of justice. I have ever given my opinion upon the greatest consideration and upon my conscience.

I humbly beg pardon if I say I ought not by the law to be called to account for the reasons of my opinion. If we err, the judgment may be rectified by writ of error, but the law acquits us.

I humbly beg pardon as to the reasons for my opinion; if the matter comes before the lords by writ of error I shall give my reasons as well as my opinion, being called by writ ad consulendum. I humbly beg your pardon for giving no reasons at present.

The two justices were later called before the House of Lords "to give . . . an account why [they] had so done" (at p. 1181). Holt L.C.J. repeated what he had said to the Committee and later, on being forced to attend again, he stated at p. 1182:

I never heard of any such thing demanded of any judge as to give reasons for his judgment. I did think myself not obliged by law to give that answer.

What a judge does in open court he can never be arraigned for it as a judge.

In the end, the justices' assertions of immunity were heeded (at p. 1204).

I observe that the principle of judicial immunity in Knowles Trial was maintained on a constitutional basis, the King having entrusted the justices with the administration of the law. Subsequent cases have affirmed the immunity of judges from compulsion to testify about judicial proceedings in which they have been involved: Zanatta v. McCleary, [1976] 1 N.S.W.L.R. 230 (C.A.); Duke of Buccleuch v. Metropolitan Board of Works (1872), 41 L.J. Ex. 137; McKinley v. McKinley, [1960] 1 All E.R. 476 (Q.B.); Scott v. Smith (1931), 1931 CanLII 706 (NB CA), 4 M.P.R. 23 (N.B.C.A.); Re Clendenning and Board of Police Commissioners for City of Belleville (1976), 1976 CanLII 696 (ON SC), 75 D.L.R. (3d) 33 (Ont. H.C.); Re Reinking (1984), 1984 CanLII 2034 (ON SC), 3 O.A.C. 137 (C.A.); Family and Children's Services v. P. B. and M. B. (1985), 1985 CanLII 5012 (ON SC), 49 R.F.L. (2d) 55 (Ont. Dist. Ct.); R. v. Moran (1987), 1987 CanLII 124 (ON CA), 21 O.A.C. 257 (C.A.); Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON SC), 64 O.R. (2d) 8 (Div. Ct.)

The judge's right to refuse to answer to the executive or legislative branches of government or their appointees as to how and why the judge arrived at a particular judicial conclusion is essential to the personal independence of the judge, one of the two main aspects of judicial independence: Valente v. The Queen, supra; Beauregard v. Canada, supra. The judge must not fear that after issuance of his or her decision, he or she may be called upon to justify it to another branch of government. The analysis in Beauregard v. Canada supports the conclusion that judicial immunity is central to the concept of judicial independence. As stated by Dickson C.J. in Beauregard v. Canada, the judiciary, if it is to play the proper constitutional role, must be completely separate in authority and function from the other arms of government. It is implicit in that separation that a judge cannot be required by the executive or legislative branches of government to explain and account for his or her judgment. To entertain the demand that a judge testify before a civil body, an emanation of the legislature or executive, on how and why he or she made his or her decision would be to strike at the most sacrosanct core of judicial independence.

I return to ss. 3 and 4 of the Public Inquiries Act. Nothing in the language of those sections suggests that the legislators intended to clothe the Commission with power to abrogate the fundamental principle that judges cannot be compelled to testify as to how and why they arrived at their decisions. I note in this connection the principle that vague and general statutory language should not be read as displacing fundamental rights: Eccles v. Bourque, 1974 CanLII 191 (SCC), [1975] 2 S.C.R. 739. Reading ss. 3 and 4 together in accordance with the established principles of statutory construction, I conclude that the Act does not empower the Commission to compel the justices who sat on the Marshall appeal to testify as to the grounds for their decision, including the record relied on.

The Immunity of Judges from Testifying as to the Reason for the Composition of a Given Court

The next question is whether the general words of ss. 3 and 4 empower the Commission to compel a judge to testify as to why a particular judge sat on a particular case? I note that subsequent to the decisions under appeal, the judge in question, Pace J.A., has been questioned and has advised that he had not had any conversations which might have disqualified him. Nevertheless, the Commission presumably wishes to question the Chief Justice as to why he placed Pace J.A. on the panel, given that Pace J.A. had served as Attorney General during critical aspects of the Marshall case.

This question goes to the administrative or institutional aspect of judicial independence: Valente v. The Queen, supra; Beauregard v. Canada, supra. In Valente v. The Queen and Beauregard v. Canada this Court affirmed in the strongest terms the necessity that the courts control administrative matters related to adjudication without interference from the Legislature or executive. In Valente v. The Queen the importance of the courts' having exclusive control over the assignment of judges was considered central to the institutional independence of the judiciary. In Beauregard v. Canada, the Chief Justice stated in this respect, at p. 73, that the very role of the courts "as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be completely separate in authority and function from all other participants in the justice system" (his emphasis).

I do not say that the power in the courts to control their own administration is absolute, if by absolute what is meant is that in no circumstances can the Legislature or Parliament enact laws relating to the functioning of the courts or enquire into the conduct of particular judges. As noted earlier, Parliament and the Legislatures have long enacted legislation establishing courts and setting general guide lines as to how they function. Nor is there any doubt that Parliament may impeach a federally appointed judge for dereliction of duty. To this extent the fundamental principle of judicial independence must leave scope for another cardinal doctrine -- the principle of Parliamentary supremacy. But at the same time, it is clear that Parliament and the Legislatures cannot act so as to trammel what Dickson C.J. in Beauregard v. Canada refers to as the authority and function of the courts. As Le Dain J. puts it in Valente v. The Queen, at p. 709, the third essential condition for judicial independence, the collective independence of tribunals, extends to matters directly affecting adjudication -- "assignment of judges, sittings of the court, and court lists -- as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions."

It thus appears clear beyond doubt that the assignment of judges is a matter exclusively within the purview of the court. It would be unthinkable for the Minister of Justice or Attorney General to instruct the Chief Justice as to who should or should not sit on a particular case; that prerogative belongs exclusively to the Chief Justice as the head of the Court. To allow the executive a role in selecting what judges hear what cases would constitute an unacceptable interference with the independence of the judiciary. Inquiries after the fact must be similarly barred, in my view. A Chief Justice who knows that he or she may be examined and cross-examined by the executive or its emanation on why he or she assigned a particular judge to a particular case may feel, consciously or unconsciously, pressure to select someone pleasing to the executive. Even if the Chief Justice did not permit himself or herself to be influenced by such a prospect, the public perception that he or she might have been influenced could harm the esteem in which our system of justice is held. In short, the principle of judicial independence which underlies judicial impartiality and the proper functioning of the courts would be threatened by the possibility of public inquiries as to the reason for the assignment of particular judges to particular cases.

In view of these principles, I conclude that ss. 3 and 4 of the Public Inquiries Act should not be read as empowering the Commission to tramel on the exclusive right of the judiciary, through its Chief Justices, to control the assignment of judges, free from constraint, whether before or after the event, from other agencies. I should not, however, be taken as suggesting that a judge could never be called to answer in any forum for the process by which the judge reached a decision or the composition of the court on a particular case. I leave to other cases the determination of whether judges might be called on matters such as these before other bodies which have express powers to compel such testimony and which possess sufficient safeguards to protect the integrity of the principle of judicial independence.

2.Whether the Direction to the Commission to Enquire into the Reference by the Minister of Justice is Ultra Vires the Province

Whether the Direction to the Commission to Enquire into the Reference by the Minister of Justice is Ultra Vires the Province

The first question is whether a provincially appointed commission can inquire into a reference by the federal Minister of Justice under s. 617(b) of the Criminal Code. It is contended that such an inquiry is invalid because it trenches on the exclusive federal power with respect to the criminal law.

The answer to this contention lies in the mandate of the Commission. Section 1 of the Public Inquiries Act authorizes such an inquiry provided that the inquiry concerns a "public matter in relation to which the Legislature of Nova Scotia may make laws." The question is whether the inquiry is "into the administration of justice", in which case it falls within the Province's powers under s. 92(14), or into the "criminal law" or "criminal procedure", in which case it infringes the federal criminal law power.

The answer to this question depends on how the phrase "administration of justice" is construed in relation to the federal power over criminal law and procedure. In Di Iorio v. Warden of Montreal Jail, 1976 CanLII 1 (SCC), [1978] 1 S.C.R. 152, this Court held that "administration of justice" should be interpreted broadly as including criminal justice. At pages 199-200, the Court stated:

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

Di Iorio v. Warden of Montreal Jail establishes, at p. 205, that the police, criminal investigations, prosecutions, corrections, and the court system, all comprise part of the "administration of justice". These are all matters under investigation by the Commission. The term "criminal procedure", reserved exclusively to the federal government, should not be confused with the larger concept of "criminal justice." As stated in Di Iorio v. Warden of Montreal Jail, at pp. 209-210:

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

I am satisfied that the Province has constitutional jurisdiction to inquire into the investigation, charging, prosecution, conviction and subsequent release of Donald Marshall, Jr. These are matters pertaining to the administration of justice within the Province, and, subject to the caveat expressed by Pigeon J. in Attorney General (Que.) and Keable v. Attorney General (Can.), 1978 CanLII 23 (SCC), [1979] 1 S.C.R. 218, that no provincially constituted commission of inquiry can inquire into the actual management or operation of the federal activity or entity in question (there the R.C.M.P.), they do not constitute an attempt to interfere with the valid federal interest in the enactment of and provision for a uniform system of procedures and rules governing criminal justice in the country: Di Iorio v. Warden of Montreal Jail, supra; O'Hara v. British Columbia, 1987 CanLII 45 (SCC), [1987] 2 S.C.R. 591, at p. 610.

In view of my conclusion that the judges are not required to testify before the Commission, I need not consider the question of whether such a requirement would infringe the federal power over federally appointed judges under ss. 96 and 63 of the Constitution Act, 1867.

Conclusion

I would dismiss the appeals.

//Cory J.//

The following are the reasons delivered by

Judgment of Cory J.

CORY J. (dissenting in part) -- I have read with great interest the reasons of my colleague Justice McLachlin. Although I am in almost complete agreement, I differ in part from the conclusions which she has reached. In the special circumstances of this case I would allow the appeal to the extent necessary to permit interrogation on two of the three questions sought to be posed on behalf of the Commission of Inquiry. Namely, the two questions are those concerning first, the make-up of the appellate panel, particularly the inclusion of Pace J.A. who was Attorney General at the time of Mr. Marshall's conviction, and secondly, the composition of the record before the court at the time of the reference, specifically directed at determining which affidavits formed part of that record.

Background to the Appointment of the Hickman Commission

In May of 1971, when he was but seventeen years of age, Donald Marshall, Jr. was involved in events which gave rise to his wrongful conviction in November of that year of murder, an offence which since Cain slew Abel, has been considered to be the most grievous of violent crimes. He served eleven long years for a murder he did not commit. In 1983, on the basis of new evidence which had been collected, the Federal Minister of Justice referred the conviction to the Appeal Division of the Supreme Court of Nova Scotia pursuant to s. 617(b) of the Criminal Code, R.S.C. 1970, c. C-34, for a redetermination. The panel hearing the Reference was composed of the Chief Justice of Nova Scotia and Hart, Jones, Macdonald and Pace JJ.A. Pace J.A. had been the Attorney General of Nova Scotia at the time of Marshall's conviction. Applications were made to a panel of the Court of Appeal for the introduction of fresh evidence on behalf of both the Crown and the defence. It is difficult if not impossible to determine what material or affidavits made up the record of the Court upon the Reference. Mention was made in the reasons of certain affidavits although the transcript strongly suggests that they were not before the court.

When it rendered its decision ((1983), 1983 CanLII 5140 (NS CA), 57 N.S.R. (2d) 286) quashing Marshall's conviction and directing his acquittal, the court added these paragraphs at its conclusion at pp. 321-22:

Donald Marshall, Jr. was convicted of murder and served a lengthy period of incarceration. That conviction is now to be set aside. Any miscarriage of justice is, however, more apparent than real.

In attempting to defend himself against the charge of murder Mr. Marshall admittedly committed perjury for which he still could be charged.

By planning a robbery with the aid of Mr. Seale he triggered a series of events which unfortunately ended in the death of Mr. Seale.

By hiding the facts from his lawyers and the police Mr. Marshall effectively prevented development of the only defence available to him, namely, that during a robbery and assault Seale was stabbed by one of the intended victims. He now says that he knew approximately where the man lived who stabbed Seale and had a pretty good description of him. With this information the truth of the matter might well have been uncovered by the police.

Even at the time of taking the fresh evidence, although he had little more to lose and much to gain if he could obtain his acquittal, Mr. Marshall was far from being straightforward on the stand. He continued to be evasive about the robbery and even refused to answer questions until the court ordered him to do so. There can be no doubt but that Donald Marshall's untruthfullness through this whole affair contributed in large measure to his conviction.

We accordingly allow the appeal, quash the conviction and direct that a verdict of acquittal be entered.

Upon his acquittal, Marshall was eventually paid some $250,000 by the Province of Nova Scotia and in return he executed a complete release of all claims he might have had against the government. Not unexpectedly it appears that the derogatory comments made by the Court of Appeal quoted above had an adverse impact on the quantum of compensation which was paid to Marshall. Despite these adverse comments, Marshall as the successful appellant could have no recourse by further appeal.

The inescapable conclusion is that the administration of justice failed Donald Marshall, Jr. He was wrongfully convicted and imprisoned for a murder he did not commit. The panel hearing the directed reference included a member who could appear (no matter how erroneous that appearance might be) to a layman to be biased. It would have been impossible for Marshall to know what affidavits were actually before the court. As a party, he was entitled to know the material which was to be a part of the record in order to meet the case presented against him. Something went seriously awry in the functioning of the judicial system in this case with tragic results for Donald Marshall, Jr.

The Appointment of the Hickman Commission

The Province of Nova Scotia took steps to learn why and how the administration of justice had failed in this case. Three very experienced, well-respected and eminent jurists were appointed to a Commission of Inquiry. Hickman C.J. was named as chairman with Poitras A.C.J. and Evans J. as members. Hickman C.J. was appointed Chief Justice of the High Court of Newfoundland in 1975. Poitras A.C.J. was named to the Superior Court of Quebec in 1975 and was appointed Associate Chief Justice of the Superior Court of that Province in 1983. Evans J. was appointed to the High Court of Ontario in 1964 and, a year later, to the Ontario Court of Appeal. He served as Chief Justice of the High Court of Ontario from 1976-1985, at which time he retired as Chief Justice and became a puisne judge of that court. I have stressed the eminence and experience of these Commissioners to demonstrate that this was not a commission of bureaucratic commissars with no knowledge of the role of judges or judicial administration; rather it was composed of highly qualified and experienced jurists who would well understand the importance of all aspects of the independence of the judiciary, including the administration of courts and court affairs. All the members in their work as chief justices have known the problems of court administration and the need for reasonable judicial independence in that domain.

The Commissioners were granted the following broad mandate:

. . . to be, during pleasure, Our Commissioners under the Public Inquiries Act to constitute a Commission under the Chairmanship of the Honourable Mr. Justice T. Alexander Hickman with power to inquire into, report your findings, and make recommendations to the Governor in Council respecting the investigation of the death of Sandford William Seale on the 28th-29th day of May, A.D., 1971; the charging and prosecution of Donald Marshall Jr., with that death; the subsequent conviction and sentencing of Donald Marshall Jr., for the non-capital murder of Sandford William Seale for which he was subsequently found to be not guilty; and such other related matters which the Commissioners consider relevant.

In my view the terms of the appointment of the Commission were broad enough to include an inquiry into not only the wrongful conviction of Donald Marshall, Jr. but also into the reaction of the judicial system upon the Reference to the Court of Appeal to that error, and the eventual payment of compensation to Marshall. These items would come within the purview of the Commission as ". . . such other related matters which the Commissioners consider relevant."

Counsel for the Commission requested MacKeigan J.A. to attend before the Commission to answer questions pertaining to three matters: (1) the inclusion of Pace J.A. on the panel hearing the Reference; (2) the composition of the record that was in fact before the Court of Appeal on the Reference; and (3) questions with regard to what the factors were which, in the opinion of the Chief Justice, constituted a miscarriage of justice and with regard to whether in fact there was such a miscarriage of justice. In my opinion it was appropriate for the Commission to put questions to the MacKeigan J.A. on the first two matters but not on the third.

The Scope of Judicial Immunity to Testify

Wigmore in his treatise on Evidence in Trials at Common Law (McNaughton rev. 1961) {SS} 2192 pointed out that all privileges of exemption from the duty to testify are exceptional and ought to be discountenanced unless there is good reason plainly shown for their existence. He put it in this way at p. 73:

The pettiness and personality of the individual trial disappears when we reflect that our duty to bear testimony runs not to the parties in that present cause, but to the community at large and forever.

It follows . . . that all privileges of exemption from this duty are exceptional, and are therefore to be discountenanced. There must be good reason, plainly shown, for their existence. [Emphasis in original.]

Nevertheless, I hasten to agree with my colleague that there is for very good reason an absolute privilege accorded to the judiciary exempting them from testifying as to their mental processes in arriving at a judgment or as to how they reached a decision in any case that came before them. This has been the law since Knowles' Trial (1692), 12 How. St. Tr. 1167, and has continued to be so with unabated force to the present time. See for example the decision of the Ontario Court of Appeal in R. v. Moran (1987), 1987 CanLII 124 (ON CA), 21 O.A.C. 257, at p. 269, per Martin J.A.

A judgment and a judge's reasons for judgment must be put on record and are subject to scrutiny on appeal by the legal community and by the public at large. It is vital to the preservation of our system of justice that a judge not be required to answer any questions as to how a decision was reached. The reasons and the decisions speak for themselves. If they are to be questioned an effective and comprehensive means of challenging them is provided by appellate procedures.

As well a large measure of judicial immunity from testifying in respect of the administration of the work of the courts is an important and necessary factor in the functioning of the judicial system. For example, it would be unthinkable that an outside agency, whether it be a ministry of government, an agency of government or a bar associate, could designate which judge was to hear a particular case or which members of an appellate court were to sit on an appeal of a case. It is important that there be immunity for judges with regard to their conversations with administrative staff, as much as with their colleagues and clerks. Nonetheless there is an important distinction to be drawn between the two types of judicial immunity. There is first the privilege of the judiciary not to be questioned as to the decisions they have made on cases. This adjudicative privilege is of fundamental importance and is absolute in nature. Secondly, there is the privilege as to the administration of the courts. This administrative privilege is not of the same fundamental importance and is qualified in nature.

The privilege relating to administrative functions is an adjunct to the adjudicative privilege. In Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, Le Dain J., writing for this Court, reviewed the basis for and extent of judicial independence as set forth in s. 11(d) of the Canadian Charter of Rights and Freedoms. He referred to the distinction between adjudicative independence and administrative independence. He noted that adjudicative independence lies at the very core and essence of judicial independence whereas the administrative aspect functions as an adjunct. At page 712 he put forward his position in this way:

The essentials of institutional independence which may be reasonably perceived as sufficient for purposes of s. 11(d) . . . . may be summed up as judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function. To the extent that the distinction between administrative independence and adjudicative independence is intended to reflect that limitation, I can see no objection to it. It may be open to objection, however, in so far as the desirable or recommended degree of administrative autonomy or independence of the courts is concerned. In my opinion, the fact that . . . the Executive exercised administrative control over certain discretionary benefits or advantages affecting the judges did not prevent the Provincial Court (Criminal Division) ... from being reasonably perceived as possessing the essential institutional independence required for purposes of s. 11(d).

These reasons make it apparent that judicial independence may not necessarily be compromised by all executive or legislative action which affects the administration of the courts.

The administrative privilege of judges is not as vital to the integrity of the administration of justice as is the adjudicative privilege. It is appropriate that the administrative privilege be qualified and limited in its scope. A leading American case on the aspect of judicial privilege relating to administration specifically describes it as qualified and not absolute. It was put in these words in In the Matter of Certain Complaints under Investigation by an Investigating Committee of the Judicial Council of the Eleventh Circuit, 783 F.2d 1488 (11th Cir. 1986) at p. 1520:

We conclude, therefore, that there exists a privilege (albeit a qualified one . . .) protecting confidential communications among judges and their staffs in the performance of their judicial duties ... A party raising a claim of judicial privilege has the burden of demonstrating that the matters under inquiry fall within the confines of the privilege. The judicial privilege is grounded in the need for confidentiality in the effective discharge of the federal judge's duties. In the main, the privilege can extend only to communications among judges and others relating to official judicial business such as, for example, the framing and researching of opinions, orders, and rulings. [Emphasis added.]

Although he was dealing with executive privilege, the words of La Forest J. speaking for the Court in Carey v. Ontario, 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637, are apposite to this case. At page 660 referring to United States v. Nixon, 418 U.S. 683 (1974), he stated:

The Court recognized the need to protect communications between high government officials. It gave some weight to the candour argument, but it also noted the importance of protecting the President from being harassed by vexatious and unnecessary subpoenas.

On the other hand, the need for confidentiality in government, the court thought, must be weighed against the historic commitment to the rule of law. The integrity of the judicial system and public confidence in it depended on full disclosure of all facts within the framework of the rules of evidence, particularly in criminal matters.

He went on to conclude at p. 673:

Divulgence is all the more important in our day when more open government is sought by the public. It serves to reinforce the faith of the citizen in his governmental institutions. This has important implications for the administration of justice, which is of prime concern to the courts.

The qualified privilege of judges on administrative matters will clearly apply in most situations. However, there are exceptional cases such as this one where the qualified privilege of immunity from testifying must give way; this will occur when it is necessary to reaffirm public confidence in the administration of justice.

To take an extreme example, if an appeal court panel consisted of 3 judges, all of whom at one time or another had acted as Crown counsel in the prosecution of the appellant, the judicial immunity from testifying should not prevail. In such circumstances a properly constituted and qualified commission of inquiry (such as the one involved in this case) should be entitled to pose questions and receive answers as to the basis for the make-up of the appellate panel. An administrative decision such as this, unlike a judgment or reasons for judgment, is not subject to review by appeal procedures. A review of administrative decisions by an appropriate body in cases of apparent abuse will have a salutary effect and ensure continued public confidence in the work of the courts. To paraphrase a well known adage, not only must absolute fairness be exercised in making administrative decisions pertaining to the courts, but the public must be able to perceive that there has been absolute fairness exercised in these decisions.

In this case it is appropriate to review some of the administrative decisions. The wrongful conviction of Marshall of the crime of murder in itself called for a public inquiry. Later the composition of the panel which heard his appeal could have been the subject of public criticism. The lack of any certainty as to what material comprised the record on the appeal was disquieting. Like the wrongful conviction, these last two matters are of grave concern. They can probably be readily and completely answered, but answered they should be.

In my view there is at common law a qualified but not an absolute privilege or immunity that exists for judges which will generally excuse them from testifying as to decisions made in the course of administering the affairs of the court. In exceptional situations such as those that pertain in this case that qualified privilege should not and cannot prevail. In my opinion a judge of the Superior court could determine that the qualified privilege should not apply in this case and compel appearance and testimony as to the administrative decisions. It follows that the Commission, pursuant to ss. 3 or 4 of the Public Inquiries Act, R.S.N.S. 1967, c. 250, has jurisdiction to compel attendance in order to pose and receive answers to the two questions to which I have referred.

McLachlin J. expressly refrained from assessing the constitutionality of s. 3 of the Public Inquiries Act as a result of her decision that the testimony of the justices could not be compelled as a matter of statutory construction. My interpretation of the same statute lead me to conclude that there is a limited power within s. 3 to compel the justices to testify on the very narrow issue of the composition of the record and of the panel. As a result, it is not necessary to undertake a detailed examination of the question of whether s. 3, in its limited scope, would violate the constitutional precept of judicial independence. It is sufficient to state that whether it is described as a rule of common law or as a fundamental constitutional norm, the principle of judicial independence is not absolute. As noted earlier, the adjudicative privilege of judicial immunity must be distinguished from the privilege as to the administration of the courts. While the first is absolute, the second is qualified and must give way albeit only in rare and special circumstances such as those which exist in this case. This qualified administrative privilege must be regarded as a necessary qualification to any constitutional expression of the principle of judicial independence. As a result, I would conclude that s. 3 does not violate the constitutional principle of judicial independence.

It is true that in Valente v. The Queen, supra, Le Dain J. observed at p. 709:

Judicial control over the matters referred to by Howland C.J.O. --assignment of judges, sittings of the court, and court lists -- as well as the related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions, has generally been considered the essential or minimum requirement for institutional or "collective" independence. See Lederman, "The Independence of the Judiciary" in The Canadian Judiciary (1976, ed. A. M. Linden), pp. 9-10; Deschênes, Masters in their own house, pp. 81 and 124.

Nonetheless he had earlier stated at p. 689:

Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. [Emphasis added.]

The aim and goal of all aspects of judicial independence is to preserve and foster public confidence in the administration of justice. Without public confidence the courts cannot effectively fulfil their role in society. Where as here the public confidence in the administration of justice has been called into question then in the interest of that public confidence which is essential to the functioning of the courts the qualified privilege should give way.

It follows that in the case at bar where public confidence in the administration of justice is at stake, questions as to the composition of the panel and of the record would not violate the constitutional principle of judicial independence. These questions pertain primarily to the manner in which justice was administered in this case, a matter of public concern and they are within the jurisdiction of the province and of the Commission.

Limitation of the Answers Sought

The third area in which the Commission sought to pose questions was put in this form by the Commission counsel:

This question should not be answered. It would require a judge to give an answer as to how a conclusion was reached on a matter which formed a part of the judgment. It therefore comes within the absolute immunity pertaining to judgments and reasons for judgment. As well, the questions which counsel for Marshall sought to have answered come within the same category and, for the same reason, should not be permitted.

Conclusion

I would therefore grant the appeal to the extent that the answers requested by the Commission as to the composition of the panel and as to the material which comprised the record before the Court of Appeal on the Reference must be given.

Appeal dismissed, WILSON and CORY JJ. dissenting in part.

Solicitors for T. Alexander Hickman, Lawrence A. Poitras and Gregory Thomas Evans: McInnes, Cooper & Robertson, Halifax.

Solicitors for Donald Marshall, Jr.: Ruby & Edwardh, Toronto.

Solicitors for Ian M. Mackeigan, Gordon L. S. Hart, Malachi C. Jones, Angus L. Macdonald and Leonard L. Pace: Cox, Downie & Goodfellow, Halifax.

Solicitors for the Attorney General of Quebec: The Attorney General of Quebec, Ste‑Foy.

Solicitors for the Attorney General of Nova Scotia: Patterson Kitz, Halifax.

Mackeigan v. Hickman, 1989 CanLII 40 (SCC), [1989] 2 SCR 796

Judgment of Lamer J.

Judgment of Wilson J.

Judgment of La Forest J.

Judgment of L'Heureux-Dubé, Gonthier and McLachlin JJ.

Background

The Actors Involved

The Trial of Donald Marshall, Jr. and the Immediately Ensuing Events

The Re-investigations and the Reference to the Appeal Division of the Supreme Court of Nova Scotia

The Institution of the Royal Commission

The Questions Sought to be Asked of the Reference Justices

The Proceedings in the Courts Below

The Issues

Whether the Public Inquiries Act Authorizes the Commission to Compel Judges to Testify

The Principle of Judicial Independence

Construction of ss. 3 and 4 of the Public Inquiries Act

Judicial Independence and the Immunity of Judges from Testifying on their Grounds for Decision

The Immunity of Judges from Testifying as to the Reason for the Composition of a Given Court

Whether the Direction to the Commission to Enquire into the Reference by the Minister of Justice is Ultra Vires the Province

Conclusion

Judgment of Cory J.

Background to the Appointment of the Hickman Commission

The Appointment of the Hickman Commission

The Scope of Judicial Immunity to Testify

Limitation of the Answers Sought

Conclusion

Mackeigan v. Hickman, 1989 CanLII 40 (SCC), [1989] 2 SCR 796

Judgment of Lamer J.

Judgment of Wilson J.

Judgment of La Forest J.

Judgment of L'Heureux-Dubé, Gonthier and McLachlin JJ.

Background

The Actors Involved

The Trial of Donald Marshall, Jr. and the Immediately Ensuing Events

The Re-investigations and the Reference to the Appeal Division of the Supreme Court of Nova Scotia

The Institution of the Royal Commission

The Questions Sought to be Asked of the Reference Justices

The Proceedings in the Courts Below

The Issues

Whether the Public Inquiries Act Authorizes the Commission to Compel Judges to Testify

The Principle of Judicial Independence

Construction of ss. 3 and 4 of the Public Inquiries Act

Judicial Independence and the Immunity of Judges from Testifying on their Grounds for Decision

The Immunity of Judges from Testifying as to the Reason for the Composition of a Given Court

Whether the Direction to the Commission to Enquire into the Reference by the Minister of Justice is Ultra Vires the Province

Conclusion

Judgment of Cory J.

Background to the Appointment of the Hickman Commission

The Appointment of the Hickman Commission

The Scope of Judicial Immunity to Testify

Limitation of the Answers Sought

Conclusion

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Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4

R. v. Yizhak, 2022 ONCJ 377

CAS v. J.J., C.M. and Six Nations of the Grand River., 2021 ONSC 1654

British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506

R. v D’Souza, 2017 ONSC 2231

Norton McMullen Consulting Inc. v. Boreham, 2015 ONSC 5862

Dyce v. Lyons-Batstone et al., 2012 ONSC 490

British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, 2005 SCC 49

R. v. Sheppard, 2002 SCC 26

R. v. Pan; R. v. Sawyer, 2001 SCC 42

R. v. Hall, 2000 CanLII 16867 (ON CA)

R. v. McMaster, 1996 CanLII 234 (SCC), [1996] 1 SCR 740

Ruffo v. Conseil de la magistrature, 1995 CanLII 49 (SCC), [1995] 4 SCR 267

Tremblay v. Quebec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 SCR 952

R. v. Généreux, 1992 CanLII 117 (SCC), [1992] 1 SCR 259

Cited By (16 cases)

Derenzis et al v. His Majesty the King et al, 2025 ONSC 2761

Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4

R. v. Yizhak, 2022 ONCJ 377

CAS v. J.J., C.M. and Six Nations of the Grand River., 2021 ONSC 1654

British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506

R. v D’Souza, 2017 ONSC 2231

Norton McMullen Consulting Inc. v. Boreham, 2015 ONSC 5862

Dyce v. Lyons-Batstone et al., 2012 ONSC 490

British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, 2005 SCC 49

R. v. Sheppard, 2002 SCC 26