[1996] 3 S.C.R.
2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool)
919
The Attorney General of Quebec Appellant and The Régie des alcools, des courses et des jeux Appellant v. 2747-3174 Québec Inc. Respondent
Indexed as: 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool)
1996: March 27; 1996: November 21.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Civil rights -- Fair hearing by independent tribunal -- Administrative tribunals -- Régie des permis d'alcool -- Cancellation of liquor permits on account of disturbance of public tranquility -- Structure and operating procedures of Régie -- Whether Régie complies with guarantees of independence and impartiality set out in s. 23 of Charter of Human Rights and Freedoms -- Scope of s. 23 of Charter -- Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 23, 56(1) -- Act respecting liquor permits, R.S.Q., c. P-9.1, ss. 2, 75, 86(8).
Following a hearing, the directors of the Régie des permis d'alcool du Québec revoked the respondent's liquor permits on the ground of disturbance of public tranquility -- a penalty provided for in ss. 75 and 86(8) of the Act respecting liquor permits (the "Act"). The respondent brought a motion in evocation in the Superior Court in which it asked (1) that the Régie's decision be quashed and (2) that s. 2 of the Act, which established the Régie, be declared invalid on the basis that the Régie did not comply with the guarantees of independence and impartiality set out in s. 23 of the Charter of Human Rights and Freedoms. The Superior Court granted the motion and, by declaring the impugned provision invalid and of no force or effect, called the very existence of the Régie into question. However, the court suspended the effect of the declaration of invalidity for a period of 12 months. The Attorney General of Quebec and the Régie appealed the decision. In 1993, the Régie des alcools, des courses et des jeux replaced the Régie des permis d'alcool, but the parties considered the Superior Court proceedings to be as important as ever because of the similarity between the two bodies. The Court of Appeal allowed the appeal in part, declaring s. 2 of the Act to be valid. However, the majority of the court held the reference to s. 75 in s. 86(8) of the Act to be invalid and of no force or effect.
Held: The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: Section 23 of the Charter entrenches in Quebec the right of every citizen to a public and fair hearing by an independent and impartial tribunal. The word "tribunal" used in that section is defined in s. 56(1) of the Charter as including "any person or agency exercising quasi-judicial functions". Section 56(1) applies to every agency that exercises quasi-judicial functions, even incidentally. Whether or not s. 23 is applicable therefore depends on the characterization of the functions of the agency that are in question. If they are quasi-judicial, the agency is a "tribunal" and must in exercising them comply with the requirements of impartiality and independence. In this case, s. 23 is applicable to the Régie because a decision to cancel a permit on account of disturbance of public tranquility is the result of a quasi-judicial process. The permit holder's rights are clearly affected by the cancellation. While the issuance of a permit may in certain respects be regarded as a privilege, its cancellation has a significant impact on the livelihood of the permit holder, who loses the right to operate his or her business. It is also significant that the process leading to the cancellation of a permit on account of disturbance of public tranquility is similar to that in a court. The Régie may make its decision only after a hearing in the course of which witnesses may be heard, exhibits filed and submissions made. Although there is strictly speaking no lis inter partes before the Régie, individuals with conflicting interests may present contradictory versions of the facts at the hearing. Finally, a decision to cancel a permit on the ground of disturbance of public tranquility results from the application of a pre-established standard to specific facts adduced in evidence and is a final judgment protected by a privative clause. Although in making such a decision the Régie may to some extent establish a general policy that it has itself developed, it does so by means of a standard imposed by and set out in the Act. The application of such a policy to specific circumstances, with the assessment of the facts it presupposes, is a quasi-judicial act.
Although flexibility must be shown toward administrative tribunals when it comes to impartiality, a detailed review of the Régie's structure and multiple functions raises a reasonable apprehension of bias on an institutional level. The Act authorizes employees of the Régie to participate at every stage of the process leading up to the cancellation of a liquor permit, from investigation to adjudication. While a plurality of functions in a single administrative agency is not necessarily problematic, here a person informed about the role of the Régie's lawyers would have a reasonable apprehension of bias in a substantial number of cases. Although the Act and regulations do not define the duties of these jurists, the Régie's annual report and the description of their jobs at the Régie show that they are called upon to review files in order to advise the Régie on the action to be taken, prepare files, draft notices of summons, present arguments to the directors and draft opinions. The annual report and the silence of the Act and regulations leave open the possibility of the same jurist performing these various functions in the same matter. The annual report mentions no measures taken to separate the lawyers involved at different stages of the process. Yet such measures seem essential in the circumstances. The possibility that a jurist who has made submissions to the directors might then advise them in respect of the same matter is disturbing, especially since some of the directors have no legal training. Such a lack of separation of functions in a lawyer raises a reasonable apprehension of bias. Prosecuting counsel must never be in a position to participate in the adjudication process. The functions of prosecutor and adjudicator cannot be exercised together in this manner. Moreover, the Act and regulations authorize the chairman to initiate an investigation, decide to hold a hearing, constitute the panel that is to hear the case and include himself or herself thereon if he or she so desires. Furthermore, the annual report suggests that other directors sometimes make the decision to hold a hearing, and it does not rule out the possibility that they might then decide the case on its merits. While the fact that the Régie, as an institution, participates in the process of investigation, summoning and adjudication is not in itself problematic, the possibility that a particular director could, following the investigation, decide to hold a hearing and could then participate in the adjudication process would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases. As with the Régie's jurists, a form of separation among the directors involved in the various stages of the process seems necessary to eliminate that apprehension of bias.
The three main components of judicial independence are financial security, security of tenure and institutional independence. Only the last two are in question in this case and, as is the case with impartiality, a certain degree of flexibility is appropriate where administrative agencies are concerned. In interpreting s. 23 of the Charter, it is necessary to consider the functions and characteristics of the administrative agencies in question. In the instant case, the directors have sufficient security of tenure within the meaning of Valente, since sanctions are available for any arbitrary interference by the executive during a director's term of office. The directors' conditions of employment meet the minimum requirements of independence. These do not require that all administrative adjudicators, like judges of courts of law, hold office for life. Fixed-term appointments, which are common, are acceptable. However, the removal of adjudicators must not simply be at the pleasure of the executive. The orders of appointment provide expressly that the directors can be dismissed only for certain specific reasons. In addition, it is possible for the directors to apply to the ordinary courts to contest an unlawful dismissal. Finally, in light of the evidence as a whole, the large number of points of contact between the Régie and the Minister of Public Security does not raise a reasonable apprehension with respect to the Régie's institutional independence. It is not unusual for an administrative agency to be subject to the general supervision of a member of the executive with respect to its management. The essential elements of institutional independence may be summed up as judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function. It has not been shown how the Minister of Public Security might influence the decision-making process. The chairman is responsible for monitoring the Régie's day-to-day activities and its various employees, and for preparing the rolls. The fact that the Minister is ultimately responsible for both the Régie and the various police forces conducting investigations would not cause an informed person to have a reasonable apprehension with respect to the independence of the directors. The directors swear an oath requiring them to perform the duties of their office honestly and fairly. The Minister's links with the various parties involved are accordingly not sufficient to raise concerns.
Although the structure of the Régie does not meet the requirements of s. 23 of the Charter, the various shortcomings that have been identified are not imposed by the constituent legislation or the regulations made thereunder. It is thus not necessary to declare specific provisions of the Act to be inconsistent with the Charter. It is sufficient to grant the respondent's motion in evocation and quash the Régie's decision.
Per L'Heureux-Dubé J.: This case is governed solely by administrative law. Administrative law is part of public law and the common law generally applies in Quebec public law, subject to legislative amendments. The common law methodology must therefore be used rather than a methodology based on the civil law. The Charter has legal preeminence over the common law because of its quasi-constitutional status. To determine what interaction there is between the common law and quasi-constitutional statute law, it is necessary to begin by analysing, identifying and setting out the applicable common law; the effect of the quasi-constitutional statute law on the common law must then be specified.
The respondent's allegations against the Régie des permis d'alcool du Québec fall under the heads of impartiality and independence. An agency's independence from the executive is a prerequisite for, but is not sufficient to guarantee, impartiality. Tribunals are never perfectly independent; their independence is relative and varies with their decision-making level. When the issue of independence is raised in a judicial review context, the courts must therefore assess the necessary degree of independence in each case based on the nature of the administrative tribunal, the institutional constraints it faces and the peremptory nature of its decisions. While independence can be seen as a continuum, the same is not true of impartiality. An agency can be either impartial or biased: there is no intermediate option. Reasonable apprehension of bias is the indicator that allows this issue to be resolved judicially. If the agency would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases, a legal finding of bias will result. Flexibility comes into play in the specific content of the test for reasonable apprehension of bias in each case. However, such flexibility must not be shown in respect of impartiality: the requirement of impartiality cannot be relaxed. It is thus the reasonableness of the apprehension that will vary among administrative tribunals, not their intrinsic impartiality. In the present case, the issue of independence is subordinate to that of impartiality for the purposes of analysis. If bias is found, the issue of independence becomes totally moot.
Agencies that perform quasi-judicial or administrative acts are subject to the nemo judex in propria sua causa debet esse rule in accordance, respectively, with the duty to act in accordance with natural justice and the duty to act fairly. Since the acts alleged against the Régie are either administrative or quasi-judicial, they are subject to the duty of impartiality included in the nemo judex rule. Here, the evidence has clearly shown that the Régie would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases. It should therefore be found that the Régie is biased on an institutional, organizational level. By implication, the Régie has violated the nemo judex rule and thus breached its duty to act fairly. This breach opens the door to the common law remedies applicable in the circumstances: the Régie's decision can be quashed through a motion in evocation under art. 846 C.C.P. and the provisions of the enabling statute can be declared of no force or effect inter partes under arts. 453 et seq. C.C.P.
Before examining the effect of the Charter's provisions on the common law, it must first be determined whether those provisions are applicable to the instant case. In interpreting ss. 23 and 56(1) of the Charter, particularly the concept of a quasi-judicial tribunal, the "modern" methodological approach must be applied. It is time to abandon the method based on the "plain meaning" of words as the basic approach to legal interpretation. According to the modern approach, consideration must be given at the outset not only to the words themselves but also, inter alia, to the context, the statute's other provisions, provisions of other statutes in pari materia and the legislative history in order to correctly identify the legislature's objective. It is only after reading the provisions with all these elements in mind that a definition will be decided on. This "modern" interpretation method has the advantage of bringing out the underlying premises and thus preventing them from going unnoticed, as they would with the "plain meaning" method. In light of the dynamic development of our law and the plurality of perspectives on legal analysis, the era of concealed underlying premises is now over. However, the "plain meaning" method, with its methodological estoppel that prevents the initiation of legal reasoning, is justified in a technical field such as tax law because of the imperatives of stability and predictability of the law; moreover, the use of the "plain meaning" in that area does not have any undesirable side effects.
When ss. 23 and 56(1) of the Charter are interpreted in an informed manner using the modern legal interpretation approach, the definition of the term "quasi-judicial" that must be adopted is one that limits its denotation to the "matters of penal significance" category. Section 23 is therefore applicable only to "agencies exercising quasi-judicial functions involving `matters of penal significance'". The common law remedies are available when an administrative agency makes a quasi-judicial decision in the matters of penal significance category, and ss. 23 and 56(1) of the Charter provide other remedies. In particular, in the event of a breach of the duty to be impartial in this category, the aggrieved individual may have the enabling statute struck down erga omnes, in whole or in part, under s. 52 of the Charter. In the present case, the Régie's decision to cancel the respondent's liquor permit was not a quasi-judicial decision in the matters of penal significance category. This type of decision falls within the "non-penal" category. Accordingly, s. 23 of the Charter is not applicable to this case and the erga omnes declaratory remedy is not available. The case is governed rather by administrative law and the remedies of evocation and declaration. Since the respondent's application is well founded, there is no reason to decline to exercise the remedial discretion conferred on the courts by the Code of Civil Procedure. The motion in evocation must therefore be allowed and the Régie's decision set aside.
Cases Cited
By Gonthier J.
Referred to: R. v. Lippé, 1990 18 (SCC), [1991] 2 S.C.R. 114; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 24 (SCC), [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board, 1979 184 (SCC), [1980] 1 S.C.R. 602; Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), 1989 44 (SCC), [1989] 2 S.C.R. 879; Minister of National Revenue v. Coopers & Lybrand, 1978 13 (SCC), [1979] 1 S.C.R. 495; Syndicat canadien de la fonction publique v. Conseil des services essentiels, 1989 1080 (QC CA), [1989] R.J.Q. 2648; Jacob et Bar Le Morency Inc. v. Régie des permis d'alcool du Québec (1988), 16 Q.A.C. 308; Taverne Le Relais Inc. v. Régie des permis d'alcool du Québec, [1989] R.J.Q. 2490; Alliance des professeurs catholiques de Montréal v. Labour Relations Board of Quebec, 1953 45 (SCC), [1953] 2 S.C.R. 140; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990 31 (SCC), [1990] 3 S.C.R. 1170; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 84 (SCC), [1992] 1 S.C.R. 623; Valente v. The Queen, 1985 25 (SCC), [1985] 2 S.C.R. 673; Ruffo v. Conseil de la magistrature, 1995 49 (SCC), [1995] 4 S.C.R. 267; Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369; IWA v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282; Brosseau v. Alberta Securities Commission, 1989 121 (SCC), [1989] 1 S.C.R. 301; Re Sawyer and Ontario Racing Commission (1979), 1979 1784 (ON CA), 24 O.R. (2d) 673; Després v. Association des arpenteurs-géomètres du Nouveau-Brunswick (1992), 1992 2436 (NB CA), 130 N.B.R. (2d) 210; Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 2784 (ON CA), 76 C.C.C. (3d) 10; Beauregard v. Canada, 1986 24 (SCC), [1986] 2 S.C.R. 56; Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3; Coffin v. Bolduc, [1988] R.J.Q. 1307; Nantais v. Bolduc, [1988] R.J.Q. 2465; Services Asbestos Canadien (Québec) Ltée v. Commission de la construction du Québec, [1989] R.J.Q. 1564; G.E. Hamel Ltée v. Cournoyer, 1989 7050 (QC CS), [1989] R.J.Q. 2767; Société de vin internationale Ltée v. Régie des permis d'alcool du Québec, J.E. 91-853.
By L'Heureux-Dubé J.
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Statutes and Regulations Cited
Act respecting liquor permits, R.S.Q., c. P-9.1, ss. 2 [rep. 1993, c. 39, s. 77], 4 [idem], 5 [idem], 8 [idem], 9 [idem], 10 [idem], 11 [idem], 12 [idem], 15 [idem], 16 [sub. 1991, c. 51, s. 3; rep. 1993, c. 39, s. 77], 21 [am. 1986, c. 86, s. 38; am. 1988, c. 46, s. 24; rep. 1993, c. 39, s. 77], 22 [idem], 24 [idem], 24.1 [ad. 1991, c. 31, s. 1], 25 et seq., 36 [am. 1983, c. 28, s. 50; am. 1986, c. 95, s. 208], 39 [am. 1987, c. 12, s. 51; am. 1991, c. 51, s. 5], 40, 41 to 42.2, 51 [sub. 1991, c. 51, s. 11], 53 to 68, 75 [am. 1986, c. 96, s. 26; am. 1991, c. 51, s. 14], 85 [am. 1986, c. 86, s. 41; am. 1988, c. 46, s. 24], 86 [am. 1983, c. 28, s. 54; am. 1986, c. 96, s. 28; am. 1990, c. 4, s. 633], 86(8), [am. 1986, c. 96, s. 28], 96 [am. 1986, c. 58, s. 69; idem, c. 86, s. 41; am. 1988, c. 46, s. 24; am. 1991, c. 51, s. 24], 99 [am. 1986, c. 86, s. 41; am. 1988, c. 46, s. 24], 101 [rep. 1993, c. 39, s. 81], 102 [am. 1991, c. 51, s. 26], 103, 104 [rep. 1993, c. 39, s. 81], 104.1 [ad. 1986, c. 96, s. 32; rep. 1993, c. 39, s. 81], 107 [rep. 1993, c. 39, s. 81], 110, 111 [am. 1983, c. 28, s. 57; am. 1986, c. 86, s. 41; am. 1988, c. 46, s. 24], 116, 175 [am. 1986, c. 86, s. 38; am. 1988, c. 46, s. 24].
Act respecting the Régie des alcools, des courses et des jeux and amending various legislative provisions, S.Q. 1993, c. 39.
Act to amend the Code of Civil Procedure and the Charter of Human Rights and Freedoms, S.Q. 1993, c. 30.
Canadian Bill of Rights, S.C. 1960, c. 44 [now R.S.C., 1985, App. III], s. 2(e), (f).
Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 23 [am. 1982, c. 17, s. 42], 38 [sub. idem, c. 61, s. 15], 52 [idem, s. 16], 56(1) [am. 1989, c. 51, s. 2], 57, 71, para. 2(1) [sub. idem, s. 5], 77, para. 2 [idem].
Charter of Human Rights and Freedoms, S.Q. 1975, c. 6, s. 23.
Civil Code of Lower Canada, arts. 157 [rep. S.Q. 1980, c. 39, s. 14], 1018.
Civil Code of Québec, S.Q. 1991, c. 64, art. 1427.
Code of Civil Procedure, R.S.Q., c. C-25, arts. 1, 4(j) [sub. 1992, c. 57, s. 171], 13 [sub. 1982, c. 17, s. 2; am. 1984, c. 26, s. 1; am. 1993, c. 30, s. 1], 14, 15, 22 [am. 1988, c. 21, s. 76; am. 1992, c. 57, s. 422], 49 to 54, 84, 453 et seq., 834 to 837, 844 [am. 1992, c. 57, s. 390], 845, 846 [am. idem, s. 422].
Convention for the Protection of Human Rights and Fundamental Freedoms [the European Convention on Human Rights], 213 U.N.T.S. 221, art. 6(1).
Courts of Justice Act, R.S.Q., c. T-16, s. 1 [am. 1988, c. 21, s.1; am. 1992, c. 61, s. 612].
Federal Court Act, R.S.C., 1985, c. F-7.
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 14(1).
Public Service Act, R.S.Q., c. F-3.1.1.
Règles de régie interne de la Régie des permis d'alcool du Québec, R.R.Q. 1981, c. P-9.1, r. 9, s. 15.
Regulation respecting the handling of complaints and the procedure applicable to the investigations of the Commission des droits de la personne, (1991) 123 G.O. II, 1097.
Regulation respecting the procedure applicable before the Régie des permis d'alcool du Québec, R.R.Q. 1981, c. P-9.1, r. 7, ss. 22, 26, 36.
Rules of practice of the Human Rights Tribunal, (1993) 125 G.O. II, 6031, s. 51.
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 10.
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APPEAL from a judgment of the Quebec Court of Appeal, 1994 6017 (QC CA), [1994] R.J.Q. 2440, 65 Q.A.C. 245, 122 D.L.R. (4th) 553, affirming in part a judgment of the Superior Court, [1993] R.J.Q. 1877, 17 Admin. L.R. (2d) 69, granting the respondent's motion in evocation. Appeal allowed.
Jean-Yves Bernard and Benoît Belleau, for the appellants.
Simon Venne and Marie Paré, for the respondent.
\Gonthier J.\ English version of the judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. delivered by
1GONTHIER J. -- This appeal gives the Court an opportunity to clarify the scope of the requirements imposed on administrative tribunals by s. 23 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12. The specific case of the Régie des permis d'alcool underscores the need to reconcile the imperatives of administrative convenience with the principles of impartiality and independence, which cannot readily be compromised.
I - Facts
2The respondent corporation operated the Bistro-Bar La Petite Maison Enr. in St-Jérôme pursuant to two permits issued by the Régie des permis d'alcool. Following a number of complaints and the combined action of three police forces, the chairman of the Régie sent the respondent a notice of summons on May 1, 1992. In that document, which set out the various allegations against the respondent, the Régie informed the respondent that it intended to hold a hearing before making any decision concerning the cancellation or suspension of the permits. Counsel for the Régie and for the respondent accordingly adduced evidence for seven days before two directors through a number of witnesses. Then, on October 14, 1992, the chairman of the Régie sent the respondent a supplementary notice of summons on the basis of new evidence. A further seven days of hearings were necessary before the directors decided, on February 17, 1993, to revoke both of the respondent's liquor permits on the ground of disturbance of public tranquility. Among the reasons given by the directors for imposing this penalty under ss. 75 and 86(8) of the Act respecting liquor permits, R.S.Q., c. P-9.1 (the "Act"), were that the establishment caused excessive noise and that narcotics trafficking was taking place there.
3The respondent challenged that decision in the Superior Court by way of evocation. It asked that the decision be quashed and further asked that s. 2 of the Act, which establishes the Régie, be declared invalid on the basis that the Régie does not comply with the guarantees of independence and impartiality set out in s. 23 of the Charter. On June 15, 1993, the Superior Court granted the motion and, by declaring the impugned provision invalid and of no force or effect, called the very existence of the Régie into question: [1993] R.J.Q. 1877, 17 Admin. L.R. (2d) 69. However, the Superior Court suspended the effect of the declaration of invalidity for a period of 12 months.
4An appeal was brought by the Attorney General of Quebec and the Régie. Before the appeal could be heard on its merits, the Régie des alcools, des courses et des jeux replaced the Régie des permis d'alcool pursuant to the Act respecting the Régie des alcools, des courses et des jeux and amending various legislative provisions, S.Q. 1993, c. 39. That Act, part of which came into force on July 14, 1993, provides that the new body acquires the rights and assumes the obligations of the defunct Régie des permis d'alcool and has an expanded role in respect of racing and gambling. The parties nevertheless considered the Superior Court proceedings to be as important as ever because of the similarity between the two bodies. On September 23, 1994, the Court of Appeal allowed the appeal in part, declaring s. 2 of the Act: 1994 6017 (QC CA), [1994] R.J.Q. 2440, 65 Q.A.C. 245, 122 D.L.R. (4th) 553, to be valid. However, the majority of the court held the reference to s. 75 in s. 86(8) of the Act to be invalid and of no force or effect. Beauregard J.A., in dissent, would have allowed the appeal in its entirety.
II - Relevant Statutory Provisions
5Act respecting liquor permits, R.S.Q., c. P-9.1
A body is established under the name of "Régie des permis d'alcool du Québec".
The holder of a permit must not use that permit in a manner that will disturb public tranquility.
The Régie may cancel a permit or suspend it for such period as it may determine, of its own initiative or on the application of the permit holder, the Minister of Public Security, the municipal corporation in whose territory the permit is used or any other interested person.
The Régie may cancel or suspend a permit, if
(8) the permit holder contravenes any provision of sections 70 to 73, 75, 78 and 82, or refuses or neglects to comply with the requirements of the Régie contemplated in section 110;
Charter of Human Rights and Freedoms, R.S.Q., c. C-12
Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.
(1) In sections 9, 23, 30, 31, 34 and 38, in Chapter III of Part II and in Part IV, the word "tribunal" includes a coroner, a fire investigation commissioner, an inquiry commission, and any person or agency exercising quasi-judicial functions.
III - Judgments of the Courts Below
Superior Court
6 Vaillancourt J. considered the motion submitted to him from the perspective of s. 23 of the Charter. In his view, s. 23 is applicable where the Régie exercises quasi-judicial functions, such as where it suspends a liquor permit in effect. Vaillancourt J. then made a distinction between impartiality and independence and, although of the view that impartiality is invariable, stated that the requirements of independence must be applied less strictly to administrative bodies. In assessing the structure of the Régie, Vaillancourt J. applied the tests developed in R. v. Lippé, 1990 18 (SCC), [1991] 2 S.C.R. 114. It was thus first necessary to determine whether a fully informed person would have a reasonable apprehension of bias in a substantial number of cases.
7 On this point, Vaillancourt J. was of the view that two factors establish institutional bias on the part of the Régie. First, there is a close relationship of dependence between the Minister of Public Security, the chairman, the directors, counsel for the Régie and the police. Second, Vaillancourt J. pointed out that in the vast majority of cases the Régie conducts the investigation, assesses the complaints, lays the complaints, presides over the hearing and makes the decisions. According to Vaillancourt J., the apprehension of bias resulting from these characteristics of the Régie cannot be sufficiently alleviated by the fact that the Act contains other guarantees, such as those related to the security of tenure and financial security of the directors. In his view, the constitution and organization of the Régie at the relevant time did not meet the requirements of s. 23 of the Charter. He therefore considered it necessary to declare the provision establishing the Régie invalid and of no force or effect. To mitigate the consequences of the organization's immediate disappearance, however, Vaillancourt J. suspended the effect of his decision for a period of 12 months.
Court of Appeal
Brossard J.A.
8 According to Brossard J.A., an analysis of the Act confirms the trial judge's finding of a close relationship and even interdependence among all those involved in the process of investigation, summoning, hearing and adjudication. That is true of the directors, police investigators and counsel, who are directly or indirectly dependent on the Minister of Public Security for various aspects of their functions. Brossard J.A. also considered that the Act does not include further guarantees capable of overcoming the apprehension of bias. Thus, if the Régie were to be considered an adjudicative body, its institutional structure would not, according to Brossard J.A., meet the requirements of impartiality and independence under s. 23 of the Charter.
9 In Brossard J.A.'s view, however, the Régie is first and foremost an economic regulatory agency that exercises adjudicative functions only incidentally. As such, it does not have to meet the requirements of s. 23 when it is exercising merely administrative functions. This conclusion was sufficient for Brossard J.A. to reverse the trial judgment declaring s. 2 of the Act invalid and of no force or effect.
10 Brossard J.A. nevertheless considered that the Régie is subject to s. 23 of the Charter when making an adjudicative decision. He concluded after analysing the Act, cases and authors that only a decision to cancel or suspend a permit on account of disturbance of public tranquility under ss. 75 and 86(8) has those characteristics. Since the Régie does not provide the guarantees of impartiality and institutional independence required to exercise that power, Brossard J.A. declared the reference to s. 75 in s. 86(8) of the Act invalid and of no force or effect.
LeBel J.A.
11 LeBel J.A. agreed with Brossard J.A. concerning the very existence of the Régie. As a multifunctional body that exercises powers of regulation, supervision, investigation and adjudication, the Régie cannot be subject in its entirety to the requirements of s. 23 of the Charter. According to LeBel J.A., the functions are distinct and can be severed, and s. 23 applies only to those that are judicial or quasi-judicial in nature.
12 On this point, LeBel J.A. dissociated himself from Brossard J.A.'s opinion. In his view, the entire process of cancellation or suspension of liquor permits under ss. 85 and 86 of the Act is judicial or quasi-judicial in nature. LeBel J.A. noted in particular that this process could result in the infringement of a right or a specific legal situation. He also noted that the Act requires the Régie to operate judicially in a number of aspects by sending a notice of summons, holding a hearing and filing a written decision giving reasons.
13 According to LeBel J.A., the Régie does not comply with the fundamental guarantee of impartiality in exercising these quasi-judicial functions. In his view, its structure and the manner in which its investigations and hearings are conducted necessarily can only raise a reasonable apprehension of institutional bias. LeBel J.A. stated that the Régie's action in these areas is based on a lack of separation of roles, since the same directors can initiate an investigation, lay charges and try them, and the same counsel can prepare a file, recommend that a complaint be laid and present the case to the directors, for whom they sometimes act as advisers. However, LeBel J.A. did not consider the method of appointment and designation of directors problematic. Nevertheless, in light of the Régie's structural deficiencies, he would have declared ss. 85 and 86 of the Act invalid and of no force or effect in their entirety.
Beauregard J.A. (dissenting)
14 Beauregard J.A. agreed with his colleagues concerning the very existence of the Régie. He considered, however, that the cancellation or suspension of a liquor permit, regardless of the ground, amounts to the exercise of an administrative discretion. In his view, the sole purpose of the opportunity given to the permit holder to be heard and of the procedure of a judicial nature imposed on the Régie is to guarantee the permit holder fair treatment. Since the Régie does not exercise an adjudicative function in cancelling a permit, s. 23 is not applicable in Beauregard J.A.'s opinion.
15 In the alternative, had he concluded that the cancellation power was quasi-judicial in nature, Beauregard J.A. would have been of the view that the requirements of s. 23 of the Charter had not been met. He noted that to comply with s. 23, it would at the very least have been necessary for the Régie's structure to include very clear separations between the individuals exercising different functions.
IV - Analysis
16 This appeal again raises the principles of judicial impartiality and independence and requires this Court to assess the structure and operating procedures of the Régie des permis d'alcool from that perspective. Before getting to the heart of the matter, however, it will be necessary to consider the scope of the requirements set out in s. 23 of the Charter. The parties disagree as to the extent of the protection resulting therefrom.
A. Section 23 of the Charter
(1) Scope
17Section 23 of the Charter entrenches in Quebec the right of every citizen to a public and fair hearing by an independent and impartial tribunal. Despite the variations in terminology, it recognizes classic principles relating to judicial impartiality and independence. I will come back to the specific content of the right protected by s. 23 but will begin by noting that its characteristics and importance are an indication of its scope. Difficulties remain in this regard, however, as a result of s. 56 of the Charter, which provides that the word "tribunal" used in s. 23 includes "any person or agency exercising quasi-judicial functions". The characterization process necessitated by this provision must therefore be explained.
18 The appellants made a series of preliminary submissions all of which challenged the application of s. 23 to the case at bar. The appellants essentially argued that the Régie is exempt from the requirements of impartiality and independence because it is first and foremost an administrative agency that regulates and controls a clearly defined sector of economic activity in the public interest. As a result, they argued, it should not be found to exercise primarily quasi-judicial functions within the meaning of s. 56. The appellants suggested a method of analysis based on carrying out an overall assessment of the agency in question and emphasizing its principal function. Such an approach, which is highly debatable in my view, distorts the argument. It may weaken the guarantees of impartiality and independence that must be available to citizens every time they participate in a judicial or quasi-judicial process, even if the agency in question usually exercises administrative functions.
19 A characterization of the agency as a whole thus cannot be conclusive at this point in the analysis. For the purposes of s. 56, it is sufficient to determine whether the functions in question are quasi-judicial. If so, s. 23 will be applicable and the agency must meet the requirements of impartiality and independence when exercising those quasi-judicial functions. From this point of view and in such circumstances, the agency will be a "tribunal" within the meaning of s. 56. This approach, which is dictated by logic, is consistent with the nature of the protected right. Although the s. 23 guarantees concern first and foremost the judicial or quasi-judicial process, they cannot be excluded on the pretext that this process is merely incidental to the primary function of the agency in question. Moreover, s. 56 applies to every agency that exercises quasi-judicial functions, even incidentally, characterizing it as a "tribunal". Thus, within the meaning of s. 56, a tribunal is an agency exercising quasi-judicial functions, and not one that exercises only quasi-judicial functions. As a consequence, however, s. 23 is applicable only while the agency is exercising its quasi-judicial functions.
20In Syndicat canadien de la fonction publique v. Conseil des services essentiels, 1989 1080 (QC CA), [1989] R.J.Q. 2648, the Court of Appeal expressed the matter slightly differently with respect to ss. 23 and 56. Chevalier J. (ad hoc) stated the following at p. 2659:
[TRANSLATION] In my view, the words used by the legislature in drafting section 56 show that it intended to make a clear distinction between an agency created essentially to exercise quasi-judicial functions and one that is occasionally required to act quasi-judicially in exercising its principal administrative function. It does not, I repeat, become a quasi-judicial agency within the meaning of section 56 just because it has such ancillary powers.
Since section 23 is, as a result of the definition in section 56, applicable only to an agency exercising quasi-judicial functions and since, as we have seen, the Conseil was not created primarily to exercise such functions, it must be concluded that the requirements of the Quebec Charter contained in section 23 are not applicable to the Conseil in so far as its existence as an institution is in issue.
. . . in my view, the wording "agency exercising quasi-judicial functions" in the definition in section 56 was chosen to indicate that the Conseil must, when dealing with a matter that will result in an order of a quasi-judicial nature, satisfy the requirements of section 23. [Emphasis in original.]
21 Similarly, in the case at bar, the judges of the majority held s. 23 to be applicable, although they did so after observing that the Régie was not a "tribunal" within the meaning of s. 56. While the result of their reasoning is correct, the process itself is somewhat unsound. As I explained, whether or not s. 23 is applicable depends on the characterization of the functions in question. If they are quasi-judicial, the agency is a "tribunal" and must in exercising them comply with the requirements of impartiality and independence. The distinctions made by the Court of Appeal instead pertain rather to the effect of a declaration of unconstitutionality. At that later point in the analysis it will be possible to determine whether defects deriving from the agency's constituent legislation affect its very existence or merely undermine one aspect of its operations.
22 That being the case, it is now necessary to identify the tests for distinguishing functions that are quasi-judicial from those that are not. The debate surrounding this distinction was for a long time of great importance in administrative law and resulted in numerous judicial decisions. Thus, the superior courts, owing inter alia to enactments requiring them to do so, relied on the distinction in order to determine what acts were subject to judicial review. The scope of the rules of natural justice then depended to a large extent on the characterization of the process by which the agency in question made its decision. However, this Court gradually abandoned that rigid classification by establishing that the content of the rules a tribunal must follow depends on all the circumstances in which it operates, and not on a characterization of its functions (see, inter alia, Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 24 (SCC), [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board, 1979 184 (SCC), [1980] 1 S.C.R. 602). As Sopinka J. noted in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Canadian Human Rights Commission), 1989 44 (SCC), [1989] 2 S.C.R. 879, at pp. 895-96:
Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of the case, the statutory provisions and the nature of the matter to be decided. The distinction between them therefore becomes blurred as one approaches the lower end of the scale of judicial or quasi-judicial tribunals and the high end of the scale with respect to administrative or executive tribunals. Accordingly, the content of the rules to be followed by a tribunal is now not determined by attempting to classify them as judicial, quasi-judicial, administrative or executive. Instead, the court decides the content of these rules by reference to all the circumstances under which the tribunal operates.
23 The distinction, which was often a source of confusion, is thus now less relevant. It is no longer applied unless a statute so requires. That was the case for a long time with the Federal Court Act, R.S.C., 1985, c. F-7, and is still the case with s. 56 of the Charter. The judgments of this Court based on the Federal Court Act thus continue to be important, as do the more general considerations relating to the quasi-judicial process put forward in other contexts.
24 In this regard, Minister of National Revenue v. Coopers & Lybrand, 1978 13 (SCC), [1979] 1 S.C.R. 495, which LeBel J.A. applied in the case at bar, provides a useful classification of the distinctive characteristics of a quasi-judicial act. Dickson J., speaking for the Court, summarized the factors to be considered as follows at pp. 504-5:
It is possible, I think, to formulate several criteria for determining whether a decision or order is one required by law to be made on a judicial or quasi-judicial basis. The list is not intended to be exhaustive.
(1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?
(2) Does the decision or order directly or indirectly affect the rights and obligations of persons?
(3) Is the adversary process involved?
(4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?
These are all factors to be weighed and evaluated, no one of which is necessarily determinative. Thus, as to (1), the absence of express language mandating a hearing does not necessarily preclude a duty to afford a hearing at common law. As to (2), the nature and severity of the manner, if any, in which individual rights are affected, and whether or not the decision or order is final, will be important, but the fact that rights are affected does not necessarily carry with it an obligation to act judicially. . . .
In more general terms, one must have regard to the subject matter of the power, the nature of the issue to be decided, and the importance of the determination upon those directly or indirectly affected thereby: see Durayappah v. Fernando. The more important the issue and the more serious the sanctions, the stronger the claim that the power be subject in its exercise to judicial or quasi-judicial process.
The existence of something in the nature of a lis inter partes and the presence of procedures, functions and happenings approximating those of a court add weight to (3). But, again, the absence of procedural rules analogous to those of courts will not be fatal to the presence of a duty to act judicially.
25 As can be seen from these comments by Dickson J., a restrictive enumeration of the characteristics of a quasi-judicial decision is risky. As a general rule, no factor considered in isolation can lead to a conclusion that a quasi-judicial process is involved. Such a finding will instead be justified by the conjunction of a series of relevant factors in light of all the circumstances. However, s. 23 of the Charter clarifies the procedure to be followed somewhat. It states that every person has a right, "for the determination of his rights and obligations or of the merits of any charge brought against him", to a public and fair hearing by an independent and impartial tribunal. This is an indication that the applicability of s. 23 depends, inter alia, on the possible impact of the decision on the citizen's rights and obligations. This does not mean, however, that s. 23 must be complied with whenever a decision could affect a citizen's rights. For it to be applicable, the procedure followed by the agency in question and the standard under which the decision was made must also have some of the characteristics proposed by Dickson J. in Coopers & Lybrand, supra.
26 Since writing these reasons, I have read those of Justice L'Heureux-Dubé. Being of the view that s. 23 of the Charter does not apply here, she would dispose of the appeal as I do, but solely on the basis of the rules of administrative law. With the greatest respect, I cannot agree with her on this point. She opens a debate in which the parties did not engage and introduces a concept, "matters of penal significance", that does not appear in the Charter and has no basis therein capable of justifying a restriction on the meaning of "quasi-judicial functions" in s. 56 or of rights and obligations in s. 23. In my view, ss. 23 and 56 of the Charter clearly express the legislature's intention that the requirements of s. 23 apply to both courts and quasi-judicial tribunals (as they are expressly worded), and to both penal and civil matters, as can be seen from the specific reference in s. 23 to both the determination of a person's "rights and obligations", which is a civil concept even though it can be used outside the civil sphere, and the "merits of any charge brought against him", which is a concept from the penal sphere. This does not mean, of course, that the manner in which s. 23 is applied cannot vary depending on the context. The legislature's intention to have the judicial rights guaranteed by the Charter apply to civil matters is also illustrated more specifically by the section's legislative evolution. As my colleague points out, s. 23 originally read as follows in 1975 (S.Q. 1975, c. 6):
- Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.
The tribunal may decide to sit in camera, however, in the interests of morality or public order.
It may also sit in camera in the interests of children, particularly in matters of divorce, separation from bed and board, marriage annulment or declaration or disavowal of paternity.
27 The Act to amend the Code of Civil Procedure and the Charter of Human Rights and Freedoms, S.Q. 1993, c. 30, repealed this third paragraph and transferred its substance together with a special provision for journalists to art. 13 of the Code of Civil Procedure, R.S.Q., c. C-25, which reads as follows:
However, in family matters, sittings in first instance are held in camera, unless the court, upon application, orders that, in the interests of justice, a sitting be public. Any journalist who proves his capacity is admitted to sittings held in camera, without further formality, unless the court considers his presence detrimental to a person whose interests may be affected by the proceedings. This paragraph applies notwithstanding section 23 of the Charter of human rights and freedoms (R.S.Q., chapter C-12). [Emphasis added.]
28 It is clear from these provisions that the legislature intended s. 23 to apply to civil matters. Family matters cannot be severed from the civil sphere. Furthermore, the suggested inconsistency between s. 23 and the functions of the Commission des droits de la personne is not evident, as s. 23 is applicable only in the context of the determination of rights and obligations. In short, with the greatest respect, I see nothing in the context to indicate that the legislature had any intention other than that which it expressed in the section itself. Moreover, as my colleague acknowledges, this scope of s. 23 has not as yet been questioned.
29 It is thus in light of these principles that the Court must now examine more closely the Régie des permis d'alcool and the process leading to the cancellation of a permit on account of disturbance of public tranquility.
(2) Application to This Appeal
30 The majority of the Court of Appeal declared the reference to s. 75 in s. 86(8) of the Act invalid. LeBel J.A. would have declared all of ss. 85 and 86 invalid, but his colleague Brossard J.A. showed greater restraint, taking a position which became that of the Court of Appeal. In this Court, the respondent is asking only that the appeal be dismissed, which requires a review of the Régie's structure and operations from the point of view only of its power to cancel permits on account of disturbance of public tranquility. In order to characterize the process leading to the imposition of such a penalty, however, it is necessary to review briefly the granting and cancellation of liquor permits in general.
31 The various types of permits that the Régie can issue and the conditions attached thereto are clearly established by the Act (ss. 25 et seq.). A person who wishes to obtain a permit must submit an application to the Régie and must show, inter alia, that he or she fulfils the conditions provided in the Act (s. 40). For example, an applicant who is an individual must be of full age and must reside legally in Quebec (s. 36). In addition, the applicant must be the owner or lessee of the establishment, must have arranged the establishment in accordance with the prescribed standards, and must pay the duties prescribed by regulation (s. 39). Upon receiving an application, the Régie must publish a notice in a newspaper and notify the municipality in whose territory the permit will be used (s. 96). Any person may object to the application within 15 days of the publication of the notice or, if an objection has been made, intervene in favour of the application within 30 days of the publication of the notice (s. 99). The Régie then makes its decision. If there is no objection and the Régie decides to grant the application, it may decide upon mere examination of the record (s. 102). Otherwise, it must give any interested persons the opportunity to be heard before deciding (s. 101). The permit application will of course be denied if the conditions for obtaining a permit are not met. It must also be denied in certain circumstances set out in ss. 41 to 42.2. One example of this is where the Régie considers that the issue of the permit would be contrary to the public interest or could disturb public tranquility (s. 41(1)).
32 Once a permit is issued, it remains valid as long as it is not cancelled (s. 51). The permit holder must periodically pay duties; if not, the permit can be cancelled automatically (ss. 53 to 55). The permit holder also has certain obligations to perform in relation, inter alia, to business hours (ss. 56 to 65) and to the posting of the permit and the prices of the beverages sold (ss. 66 to 68). The permit holder is also required to use the permit in a manner that will not disturb public tranquility (s. 75).
33 A valid permit may be cancelled or suspended by the Régie of its own initiative or on the application of the permit holder, the Minister of Public Security, the municipal corporation in whose territory the permit is used or any other interested person (s. 85). There are a number of grounds for cancellation, which are listed in s. 86. The only one that is directly in issue here is the ground set out in s. 86(8), which relates to the obligation to use the permit in a manner that does not disturb public tranquility (s. 75). A decision to cancel or suspend a permit may be rendered only after a hearing (s. 101). At that hearing, the procedure of which may be regulated in detail by the Régie (s. 104), any relevant evidence is admissible (s. 103). Witnesses may be summoned in the manner set out in arts. 280 to 283 of the Code of Civil Procedure (s. 22 of the Regulation respecting the procedure applicable before the Régie des permis d'alcool du Québec, R.R.Q. 1981, c. P-9.1, r. 7). Certain witnesses may on occasion substitute written depositions for their testimony (s. 104.1). Furthermore, any person with an interest in a matter before the Régie may appear and plead in person or through a lawyer (s. 36 of the Regulation, supra). Following the hearing, the Régie makes a decision, which must be substantiated, is final and cannot be appealed (s. 107). Where it concerns allegations of disturbing public tranquility, the decision must be based on the criteria listed in s. 24.1:
24.1 The Régie, in the performance of its functions and the exercise of its powers in cases involving public tranquility, may, among other factors, take into account:
(1) any noise, gathering or assembly which results or may result from the operation of the establishment that may disturb the peace in the neighbourhood;
(2) the measures taken by the applicant or permit holder for, and their efficiency in, preventing, in the establishment,
(a) the possession, consumption, sale, exchange or gift, in any manner, of a drug, narcotic or any other substance that may be held to be a drug or narcotic; (b) the possession of a firearm or any other offensive weapon;
(c) gestures or actions of a sexual nature that may disturb the peace and related solicitation;
(d) acts of violence, including theft or mischief, that may disturb the peace of the customers or the citizens of the neighbourhood;
(e) games of chance or any wager or betting that may disturb the peace;
(f) any contravention of this Act or the regulations thereunder or of the Act respecting offences relating to alcoholic beverages (chapter I-8.1);
(g) any contravention of any Act or a regulation concerning safety, hygiene or sanitation in a public place or public building;
(3) the place where the establishment is situated and, in particular, whether the sector concerned is a residential, commercial, industrial or tourist sector.
34 With these characteristics in mind, it is my view that a decision to cancel a permit on account of disturbance of public tranquility is the result of a quasi-judicial process. First of all, the permit holder's rights are clearly affected by the cancellation. Cancelling the permit could have a serious impact on the permit holder, who will obviously lose the right to operate his or her business as a consequence and will not be able to submit a new permit application until one year has elapsed (s. 93 of the Act). While the granting of a permit may in certain respects be regarded as a privilege, the cancellation of a liquor permit will nevertheless have a significant impact on the permit holder's livelihood. A permit holder can expect the permit to remain valid (s. 51) unless one of the grounds for cancellation is proven.
35 It is also significant that the Régie may make its decision only after a hearing in the course of which witnesses may be heard, exhibits filed and submissions made. The characteristics of the hearing make the process similar to that in a court. Although there is strictly speaking no lis inter partes before the Régie, individuals with conflicting interests may nevertheless present contradictory versions of the facts at the hearing.
36 Finally, a decision to cancel a permit on the ground of disturbance of public tranquility results from the application of a pre-established standard to specific facts adduced in evidence and is a final judgment protected by a privative clause. It is true that in making such a decision the Régie may to some extent establish a general policy that it has itself developed. It does so, however, by means of a standard imposed by and set out in the Act. The application of such a policy to specific circumstances, with the assessment of the facts it presupposes, is a quasi-judicial act.
37 Such a characterization can also be found in Quebec decisions (Jacob et Bar Le Morency Inc. v. Régie des permis d'alcool du Québec (1988), 16 Q.A.C. 308, at p. 311; Taverne Le Relais Inc. v. Régie des permis d'alcool du Québec, [1989] R.J.Q. 2490 (Sup. Ct.), at p. 2494). As P. Garant stated in Droit administratif (3rd ed. 1991), vol. 1, at p. 204, illustrating his comment with the Régie des permis d'alcool, inter alia:
[TRANSLATION] Generally speaking, the power to suspend and cancel any permit, licence or authorization is considered quasi-judicial, regardless of whether the power is exercised on the basis of objective standards or of standards that are partly objective and partly subjective. In many cases, these standards are stated quite clearly in the legislation.
38 For example, this Court held that the Labour Relations Board's decision to revoke a union's certification constituted the exercise of a quasi-judicial function (Alliance des professeurs catholiques de Montréal v. Labour Relations Board of Quebec, 1953 45 (SCC), [1953] 2 S.C.R. 140). There is no reason to deviate from this general rule when it comes to the power to cancel liquor permits on account of disturbance of public tranquility.
39 The applicability of s. 23 having been established, it is now necessary to consider the merits of the present case. Before doing so, however, I wish to note that, even in cases not involving s. 23, administrative agencies may be required to comply with the principles of natural justice under general law rules. It is clear that the purpose of those principles is to ensure in certain ways the impartiality and independence of the decision maker (see, for example, Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990 31 (SCC), [1990] 3 S.C.R. 1170; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 84 (SCC), [1992] 1 S.C.R. 623). The exact content of the rules to be followed will depend on all the circumstances, and in particular on the language of the statute under which the agency acts, the nature of the task it performs and the type of decision it is required to make. Conversely, the fact that an agency is subject to s. 23 does not mean that its structure must have the same characteristics as that of the courts. The flexibility this Court has shown in such matters is just as appropriate where s. 23 is concerned.
B. Impartiality, Independence and the Régie des permis d'alcool
40 In its motion in evocation, the respondent corporation challenged the structure and operations of the Régie des permis d'alcool. Its challenge is based on certain of the Régie's institutional characteristics but does not concern the actual conduct of the decision makers in the present case. In its submissions, the respondent questioned both the Régie's institutional impartiality and its independence.
41 These concepts of impartiality and independence, although very similar, can nevertheless be distinguished. As Le Dain J. stated in Valente v. The Queen, 1985 25 (SCC), [1985] 2 S.C.R. 673, at p. 685, in discussing the Canadian Charter of Rights and Freedoms:
Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word "impartial" . . . connotes absence of bias, actual or perceived. The word "independent" in s. 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.
42 Since Lippé, supra, there is no longer any doubt that impartiality, like independence, has an institutional aspect. Lamer C.J., speaking for the Court on this point, stated the following at p. 140:
Notwithstanding judicial independence, there may also exist a reasonable apprehension of bias on an institutional or structural level. Although the concept of institutional impartiality has never before been recognized by this Court, the constitutional guarantee of an "independent and impartial tribunal" has to be broad enough to encompass this. Just as the requirement of judicial independence has both an individual and institutional aspect (Valente, supra, at p. 687), so too must the requirement of judicial impartiality. I cannot interpret the Canadian Charter as guaranteeing one on an institutional level and the other only on a case-by-case basis.
The objective status of the tribunal can be as relevant for the "impartiality" requirement as it is for "independence". Therefore, whether or not any particular judge harboured pre-conceived ideas or biases, if the system is structured in such a way as to create a reasonable apprehension of bias on an institutional level, the requirement of impartiality is not met. [Emphasis in original.]
43 In the case at bar, the respondent's concerns are related first to the Régie's multiple functions and to the impact of that multiplicity of functions on the duties of its various employees. The respondent thus concentrated on the context in which the decision makers operate and noted certain institutional characteristics capable in its view of affecting their state of mind, and accordingly raising an apprehension of bias. These submissions therefore concerned impartiality. Second, the respondent questioned the security of tenure of the directors and their institutional independence. In so doing, it of course challenged the directors' appearance of independence, as it relied on institutional characteristics that, because they are connected with the decision makers' relationships with others, could affect their ability to decide in accordance with their consciences.
(1) Institutional Bias
44 As a result of Lippé, supra, and Ruffo v. Conseil de la magistrature, 1995 49 (SCC), [1995] 4 S.C.R. 267, inter alia, the test for institutional impartiality is well established. It is clear that the governing factors are those put forward by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394. The determination of institutional bias presupposes that a well-informed person, viewing the matter realistically and practically -- and having thought the matter through -- would have a reasonable apprehension of bias in a substantial number of cases. In this regard, all factors must be considered, but the guarantees provided for in the legislation to counter the prejudicial effects of certain institutional characteristics must be given special attention.
45 This test is perfectly suited, under s. 23 of the Charter, to a review of the structure of administrative agencies exercising quasi-judicial functions. Whether appearing before an administrative tribunal or a court of law, a litigant has a right to expect that an impartial adjudicator will deal with his or her claims. As is the case with the courts, an informed observer analysing the structure of an administrative tribunal will reach one of two conclusions: he or she either will or will not have a reasonable apprehension of bias. That having been said, the informed person's assessment will always depend on the circumstances. The nature of the dispute to be decided, the other duties of the administrative agency and the operational context as a whole will of course affect the assessment. In a criminal trial, the smallest detail capable of casting doubt on the judge's impartiality will be cause for alarm, whereas greater flexibility must be shown toward administrative tribunals. As Lamer C.J. noted in Lippé, supra, at p. 142, constitutional and quasi-constitutional provisions do not always guarantee an ideal system. Rather, their purpose is to ensure that, considering all of their characteristics, the structures of judicial and quasi-judicial bodies do not raise a reasonable apprehension of bias. This is analogous to the application of the principles of natural justice, which reconcile the requirements of the decision-making process of specialized tribunals with the parties' rights. I made the following comment in IWA v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282, at pp. 323-24:
I agree with the respondent union that the rules of natural justice must take into account the institutional constraints faced by an administrative tribunal. These tribunals are created to increase the efficiency of the administration of justice and are often called upon to handle heavy caseloads. It is unrealistic to expect an administrative tribunal such as the Board to abide strictly by the rules applicable to courts of law. In fact, it has long been recognized that the rules of natural justice do not have a fixed content irrespective of the nature of the tribunal and of the institutional constraints it faces.
I note, however, that this necessary flexibility, and the difficulty involved in isolating the essential elements of institutional impartiality, must not be used to justify ignoring serious deficiencies in a quasi-judicial process. The perception of impartiality remains essential to maintaining public confidence in the justice system.
(i) The Liquor Permit Cancellation Process
46 The arguments against the Régie des permis d'alcool relate primarily to its role at various stages in the liquor permit cancellation process. The Act authorizes employees of the Régie to participate in the investigation, the filing of complaints, the presentation of the case to the directors and the decision.
47 I note at the outset that a plurality of functions in a single administrative agency is not necessarily problematic. This Court has already suggested that such a multifunctional structure does not in itself always raise an apprehension of bias. In Brosseau v. Alberta Securities Commission, 1989 121 (SCC), [1989] 1 S.C.R. 301, at pp. 309-10, L'Heureux-Dubé J., although she did not rule on the impact of the constitutional guarantees, stated the following:
As with most principles, there are exceptions. One exception to the "nemo judex" principle is where the overlap of functions which occurs has been authorized by statute, assuming the constitutionality of the statute is not in issue.
In some cases, the legislator will determine that it is desirable, in achieving the ends of the statute, to allow for an overlap of functions which in normal judicial proceedings would be kept separate. In assessing the activities of administrative tribunals, the courts must be sensitive to the nature of the body created by the legislator. If a certain degree of overlapping of functions is authorized by statute, then, to the extent that it is authorized, it will not generally be subject to the doctrine of "reasonable apprehension of bias" per se.
Cory J. made a similar comment in Newfoundland Telephone, supra, at p. 635:
Some boards will have a function that is investigative, prosecutorial and adjudicative. It is only boards with these three powers that can be expected to regulate adequately complex or monopolistic industries that supply essential services.
48 Although an overlapping of functions is not always a ground for concern, it must nevertheless not result in excessively close relations among employees involved in different stages of the process. The lack of separation of roles within the Régie des permis d'alcool was the principal basis for the Court of Appeal's decision in the present case, which means that a thorough review of its institutional structure will be necessary.
49 The Régie is composed of at least six directors, including a chairman and a vice-chairman (s. 4). The directors are appointed by the government for a term of not over five years. Their remuneration, social benefits and conditions of employment are also determined by the government. Once fixed, however, their remuneration cannot be reduced (s. 5). The directors are prohibited from holding offices incompatible with the functions assigned to them by the Act (s. 9). They are also prohibited, under pain of forfeiture of office, from having any direct or indirect interest in an undertaking likely to make their personal interest in conflict with the duties of their office (s. 10). The directors have the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions, R.S.Q., c. C-37 (s. 11). In addition, neither the Régie nor the directors can be prosecuted for official acts done in good faith in the exercise of their functions (s. 12).
50 The chairman, in addition to his or her role as a director, is responsible for the administration and the general direction of the affairs of the Régie (s. 8). The chairman's duties include presiding over the plenary sessions of the Régie, informing the directors on any questions of general policy, signing the documents and instruments within the Régie's jurisdiction either alone or with any other designated person, and preparing the roll (s. 15 of the Règles de régie interne de la Régie des permis d'alcool du Québec, R.R.Q. 1981, c. P-9.1, r. 9). Moreover, the parties admitted that the chairman conducts an annual evaluation, on the basis of a rating guide, of the performance of the Régie's members and employees. The chairman is in turn evaluated by the Minister of Public Security. These assessments appear to be used to calculate bonuses. The vice-chairman replaces the chairman in his or her absence (s. 8). The Régie's 1991-92 annual report, which was filed in evidence, describes the vice-chairman's duties as follows, (at p. 21):
[TRANSLATION] The incumbent of this position co-ordinates and supervises the legal advice and support functions of the Régie's directors and legal advisers. She ensures that the Régie's decisions are consistent and that files for submission to the courts are in order.
51 The other employees of the Régie work in various administrative units. Only the secretariat is of interest in this appeal, as it is responsible, inter alia, for the legal services unit, which includes lawyers appointed and remunerated in accordance with the Public Service Act, R.S.Q., c. F-3.1.1. Their role is described as follows in the annual report (at p. 22):
[TRANSLATION] Members of legal services review any files that may result in notices to appear before the Régie to ensure that they comply with the law.
These advisers also meet with the solicitors of record to clarify certain aspects of the cases, see that notices of summons are drafted and sent, and present arguments to the Régie sitting in public hearings. Legal services also give legal opinions to the managers and directors, perform legal research and draft opinions, prepare draft regulations on matters within the Régie's jurisdiction and provide the public with information on statutes and regulations.
52 In practice, employees of the Régie are involved at every stage of the process leading up to the cancellation of a liquor permit, from investigation to adjudication. Thus, the Act authorizes the Régie to require permit holders to provide information (s. 110). Members of the Régie's staff designated by the chairman, or members of police forces, may also inspect establishments during business hours (s. 111). The Régie has signed memorandums of understanding with certain police forces to establish a framework for their role of inspection and seizure. The Régie can thus initiate the investigation process. However, a formal investigation is not an absolute prerequisite for cancellation of a permit. The Régie may summon a permit holder of its own initiative or on the application of any interested person, including the Minister of Public Security (s. 85). As the annual report indicates, legal services lawyers participate in the preliminary review of files before the decision to summon a permit holder is made. Where the application for cancellation is made by a third party, s. 26 of the Regulation respecting the procedure applicable before the Régie des permis d'alcool du Québec, requires that the Régie summon the permit holder if the facts mentioned call prima facie for the enforcement of ss. 86 to 90 of the Act. The Act and regulations do not, however, specify the circumstances in which the Régie may proceed proprio motu.
53 If the Régie decides to hold a hearing, a notice of summons drafted by a legal services lawyer is sent to the permit holder. In the case at bar, the notice was signed by the chairman of the Régie. Where a ground related to public tranquility is involved, a hearing is then held before at least two directors designated by the chairman (ss. 15 and 16). One of the legal services lawyers acts as counsel for the Régie at that hearing. The directors must decide the matter and, in the case of a tied vote, the matter is referred to the Régie sitting in plenary session. The proceedings are completed with the publication of written reasons.
(ii) Role of the Régie's Lawyers
54 This detailed description of the Régie's structure and operations shows that the issue of the role of the lawyers employed by legal services is at the heart of this appeal. In my view, an informed person having thought the matter through would in this regard have a reasonable apprehension of bias in a substantial number of cases. The Act and regulations do not define the duties of these jurists. The Régie's annual report, however, and the description of their jobs at the Régie, show that they are called upon to review files in order to advise the Régie on the action to be taken, prepare files, draft notices of summons, present arguments to the directors and draft opinions. The annual report and the silence of the Act and regulations leave open the possibility of the same jurist performing these various functions in the same matter. The annual report mentions no measures taken to separate the lawyers involved at different stages of the process. Yet it seems to me that such measures, the precise limits of which I will deliberately refrain from outlining, are essential in the circumstances. Evidence as to the role of the lawyers and the allocation of tasks among them is incomplete, but the possibility that a jurist who has made submissions to the directors might then advise them in respect of the same matter is disturbing, especially since some of the directors have no legal training. In this regard, I agree with Brossard J.A. (at p. 581 D.L.R.):
[TRANSLATION] The appellants invite us to presume that their opinions are general or related to the administrative functions of the directors and point out that the Régie's annual report does not establish the existence of any practice by which the prosecuting lawyers would also be called on to give legal opinions in the context of the exercise of the directors' adjudicative function. However, the report does not rule out this possibility. Yet in matters of institutional bias, it is the reasonable apprehension of the informed person that we must consider and not the proven or presumed existence of an actual conflict of interest.
55 Furthermore, the courts have not hesitated to declare on the basis of the rules of natural justice that such a lack of separation of functions in a lawyer raises a reasonable apprehension of bias. In Re Sawyer and Ontario Racing Commission(1979), 1979 1784 (ON CA), 24 O.R. (2d) 673 (C.A.), for example, the lawyer who presented the administrative agency's point of view subsequently took part in the review of the reasons for the decision. Brooke J.A. described the role of that lawyer as follows, at p. 676: But there is no doubt that his role was to prosecute the case against the appellant and he was not present in a role comparable to that of a legal assessor to the Commission. . . . He was counsel for the appellant's adversary in proceedings to determine the appellant's guilt or innocence on the charge against him. It is basic that persons entrusted to judge or determine the rights of others must, for reasons arrived at independently, make that decision whether it or the reasons be right or wrong. It was wrong for the Commission, who were the judges, to privately involve either party in the Commission's function once the case began and certainly after the case was left to them for ultimate disposition. To do so must amount to a denial of natural justice because it would not unreasonably raise a suspicion of bias in others, including the appellant, who were not present and later learned what transpired.
See also Després v. Association des arpenteurs-géomètres du Nouveau-Brunswick (1992), 1992 2436 (NB CA), 130 N.B.R. (2d) 210 (C.A.); Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 2784 (ON CA), 76 C.C.C. (3d) 10 (Ont. C.A.), at p. 41.
56 Similarly, in the case at bar, the Régie's lawyers could not advise the directors and make submissions to them without there being a reasonable apprehension of bias. This is not to say that jurists in the employ of an administrative tribunal can never play any role in the preparation of reasons. An examination of the consequences of such a practice would exceed the limits of this appeal, however, as I need only note, to dispose of it, that prosecuting counsel must in no circumstances be in a position to participate in the adjudication process. The functions of prosecutor and adjudicator cannot be exercised together in this manner.
(iii) Role of the Directors
57 The Court of Appeal's decision was also based on the fact that the directors could intervene at various stages in the permit cancellation process. The Régie, which is composed of the incumbent directors, may require permit holders to provide information (s. 110) and may assign one of its employees or a member of a police force to inspect an establishment (s. 111). The directors, including the chairman first and foremost, may thus initiate the review of a specific case. Similarly, the decision to hold a hearing presupposes a certain participation by the directors. It is the Régie that is responsible for sending notices of summons. Where a complaint is submitted to it by a third party, the Régie must hold a hearing if the allegations of fact call prima facie for the enforcement of the relevant provisions (s. 26 of the Regulation respecting the procedure applicable before the Régie des permis d'alcool du Québec). The circumstances in which the Régie may decide to summon a permit holder of its own initiative are not specified, but it may be concluded by analogy that similar criteria would be applied. Although the Act and the various regulations are silent on this subject, the Court of Appeal held in Jacob et Bar Le Morency, supra, that the decision to summon was an administrative decision within the chairman's authority that did not have to be made in plenary session. Gendreau J.A. described this power of the chairman as follows, at p. 311:
[TRANSLATION] The chairman determines only one simple question that boils down to deciding whether it is appropriate, in light of the information obtained and placed in the record kept under s. 20(1) of the Act, to constitute a panel of the Régie to determine whether the permit holder's use complies with the Act. The purpose of the chairman's power is therefore limited to setting the quasi-judicial investigation process in motion, and this power is included among those conferred by the Act.
Furthermore, neither the purpose nor the effect of the chairman's decision is to affect the permit holder's rights; the operation of his or her establishment is not prevented, suspended or restricted. Nor does the notice include a decision or a statement of a presumption of unlawful exercise of trade that the appellants would have to rebut to retain their permit. In short, the chairman, in assigning the case to a panel of the Régie, in no way hinders the appellants either in putting their arguments to the directors in timely fashion or in acting as the authorized managers of their bar until the adjudication, the result of which is not prejudged.
58 Although the evidence was silent as to the Régie's practice, that judgment indicates that the decision to summon may be made by the chairman acting alone. In the case at bar, at the very least, the notice of summons bears the chairman's signature. The annual report, however, describes the duties of the directors as follows (at p. 23):
[TRANSLATION] In addition, they must take turns in assuming internal responsibility for verifying and, where appropriate, authorizing the draft decisions submitted by the retailers' and manufacturers' permit directorates, reviewing administrative files submitted by legal services or the above-mentioned directorates in order to decide whether a summons is necessary, having a draft decision prepared or taking any other appropriate action. [Emphasis added.]
Furthermore, once a notice of summons has been sent, the chairman has the power to designate the directors responsible for deciding the case in question (s. 15 of the Règles de régie interne de la Régie des permis d'alcool du Québec).
59 A lack of evidence makes it difficult to assess the Régie's operations. It must be noted, however, that the Act and regulations authorize the chairman to initiate an investigation, decide to hold a hearing, constitute the panel that is to hear the case and include himself or herself thereon if he or she so desires. Furthermore, the annual report suggests that other directors sometimes make the decision to hold a hearing, and it does not rule out the possibility that those directors might then decide the case on its merits. In the case at bar, these factors can only reinforce the reasonable apprehension of bias an informed person would have in respect of the Régie owing to the role of counsel.
60 Having said this, I agree with the opinion expressed by Gendreau J.A. in Jacob et Bar Le Morency that the decision to hold a hearing does not amount to a prior determination of the validity of the allegations against the permit holder. The fact that the Régie, as an institution, participates in the process of investigation, summoning and adjudication is not in itself problematic. However, the possibility that a particular director could, following the investigation, decide to hold a hearing and could then participate in the decision-making process would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases. It seems to me that, as with the Régie's jurists, a form of separation among the directors involved in the various stages of the process is necessary to counter that apprehension of bias.
(2) Independence
61 The independence of administrative tribunals, which s. 23 of the Charter protects in addition to impartiality, is based, inter alia, on the relations the decision makers maintain with others and the objective circumstances surrounding those relations. In Beauregard v. Canada, 1986 24 (SCC), [1986] 2 S.C.R. 56, at p. 69, Dickson C.J. defined independence as follows:
Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider -- be it government, pressure group, individual or even another judge -- should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision.
The three main components of judicial independence, namely security of tenure, financial security and institutional independence, were identified in Valente, supra. The purpose of these objective elements is to ensure that the judge can reasonably be perceived as independent and that any apprehension of bias will thus be eliminated. Independence is in short a guarantee of impartiality.
62 The principles developed by this Court in relation to judicial independence must be applied under s. 23 of the Charter. That does not mean of course that the administrative tribunals to which s. 23 applies must be in all respects comparable to courts of law. As is the case with impartiality, a certain degree of flexibility is appropriate where administrative agencies are concerned. Le Dain J.'s reasons in Valente leave room for a flexibility that takes the nature of the tribunal and all the circumstances into account. Lamer C.J. noted this recently in Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3, at para. 83:
Therefore, while administrative tribunals are subject to the Valente principles, the test for institutional independence must be applied in light of the functions being performed by the particular tribunal at issue. The requisite level of institutional independence (i.e., security of tenure, financial security and administrative control) will depend on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office.
See also the reasons of Sopinka J., at para. 113.
63 The Quebec courts that have interpreted s. 23 have likewise considered the functions and characteristics of the administrative agencies in question in their analyses (see, for example, Coffin v. Bolduc, [1988] R.J.Q. 1307 (Sup. Ct.); Nantais v. Bolduc, [1988] R.J.Q. 2465 (Sup. Ct.); Services Asbestos Canadien (Québec) Ltée v. Commission de la construction du Québec, [1989] R.J.Q. 1564 (Sup. Ct.); Taverne Le Relais, supra; G.E. Hamel Ltée v. Cournoyer, 1989 7050 (QC CS), [1989] R.J.Q. 2767 (Sup. Ct.); Société de vin internationale Ltée v. Régie des permis d'alcool du Québec, J.E. 91-853 (Sup. Ct.)). There is in fact no question that administrative tribunals do not necessarily have to provide the same objective guarantees of independence as higher courts. I note, however, that s. 23 does not authorize the existence of agencies in respect of which an informed observer would, after analysing all relevant factors, have a reasonable apprehension of bias.
64 It is now necessary, in light of these principles, to consider the respondent's arguments against the Régie. Only security of tenure and institutional independence were challenged on the basis of specific factors. I shall refrain from ruling on other aspects of the status of the directors or the structure of the Régie.
(i) Security of Tenure
65 The respondent relied primarily on the term of office of the directors and the method of dismissal. They are appointed by the government for a term of not more than five years (s. 4). Supplementary directors may also be appointed for as long as the government determines. The orders of appointment adduced in evidence refer to terms of two, three and five years. Once appointed, at least judging by the orders of appointment adduced in evidence, the directors can be dismissed only for specific reasons. All the contracts contain the following clause, which is taken from the agreement between the government and the chairman of the Régie:
[TRANSLATION]
5.2 Dismissal
Mr. Laflamme also agrees that the government may revoke this appointment at any time, without notice or compensation, on grounds of defalcation, mismanagement, gross fault or any ground of equal seriousness, proof of which lies upon the government.
66 Some of the employment contracts also contain the following clause:
[TRANSLATION]
- Renewal
As provided for in article 2, Mr. Laflamme's term shall end on May 31, 1995. If the minister responsible intends to recommend to the government that his term as director and chairman of the Régie be renewed, the said minister shall notify him at least six months prior to the expiry of the present term.
If this appointment is not renewed or if the government does not appoint Mr. Laflamme to another position, Mr. Laflamme shall rejoin the staff of the Ministère de la Sécurité publique on the terms and conditions set out in article 6.
67 In my view, the directors' conditions of employment meet the minimum requirements of independence. These do not require that all administrative adjudicators, like judges of courts of law, hold office for life. Fixed-term appointments, which are common, are acceptable. However, the removal of adjudicators must not simply be at the pleasure of the executive. Le Dain J. summarized the requirements of security of tenure as follows in Valente, at p. 698:
. . . that the judge be removable only for cause, and that cause be subject to independent review and determination by a process at which the judge affected is afforded a full opportunity to be heard. The essence of security of tenure for purposes of s. 11(d) is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the Executive or other appointing authority in a discretionary or arbitrary manner.
68 In the case at bar, the orders of appointment provide expressly that the directors can be dismissed only for certain specific reasons. In addition, it is possible for the directors to apply to the ordinary courts to contest an unlawful dismissal. In these circumstances, I am of the view that the directors have sufficient security of tenure within the meaning of Valente, since sanctions are available for any arbitrary interference by the executive during a director's term of office.
(ii) Institutional Independence
69 It was suggested that the large number of points of contact between the Régie and the Minister of Public Security was problematic. The Minister is responsible for the application of the Act (s. 175). The Régie is required to submit a report to the Minister each year (s. 21) and the Minister may require information from the chairman on the agency's activities (s. 22). In addition, the Minister of Public Security must approve any rules the Régie might adopt in plenary session for its internal management (s. 24), and the Government must approve the various regulations made by the Régie (s. 116). Each year, the Minister also conducts the evaluation of the chairman of the Régie. Furthermore, the Minister is responsible for the various police forces that may, at the Régie's request, conduct investigations. Finally, the Minister may initiate the permit cancellation process by submitting an application to the Régie under s. 85.
70 In light of the evidence as a whole, I do not consider these various factors sufficient to raise a reasonable apprehension with respect to the institutional independence of the Régie. It is not unusual for an administrative agency to be subject to the general supervision of a member of the executive with respect to its management. As Le Dain J. stated in Valente, at p. 712, the essential elements of institutional independence may be summed up as judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function. It has not been shown how the Minister might influence the decision-making process. The chairman is responsible for monitoring the Régie's day-to-day activities and its various employees, and for preparing the rolls. The fact that the Minister of Public Security is ultimately responsible for both the Régie and the various police forces conducting investigations would not in my view cause an informed person to have a reasonable apprehension with respect to the independence of the directors. The directors swear an oath requiring them to perform the duties of their office honestly and fairly. The Minister's links with the various parties involved are accordingly not sufficient to raise concerns.
C. The Appropriate Order
71 The structure of the Régie does not meet the requirements of s. 23 of the Charter. However, the various shortcomings I have identified are not imposed by the constituent legislation or regulations made thereunder. Thus, I do not consider it necessary to declare specific provisions of the Act to be inconsistent with the Charter. It is sufficient to grant the respondent's motion in evocation and accordingly quash the Régie's decision.
72 The respondent is also seeking costs calculated on the basis of expenses actually incurred. Although I am proposing to allow the appeal, I would award costs to the respondent in light in particular of the fact that the issue is one of general interest and the success of the respondent's arguments in this Court. My award is limited to the usual tariff, however.
V - Conclusion
73 For these reasons, I would allow the appeal, set aside the judgments of the Court of Appeal and the Superior Court, grant the motion in evocation and quash the Régie's decision of February 17, 1993 cancelling the respondent's liquor permits, the whole with costs to the respondent.
\L'Heureux-Dubé J.\
INDEX Paragraph I.Introduction74
II.The Régie's Duty to Be Impartial76
A.General Considerations76
(1)The Common Law's Applicability in Public Law76
(2)Methodology of Legal Analysis in Administrative Law85
(3)Distinctions Between Independence and Impartiality105
(4)Distinctions Between Bias and Reasonable Apprehension of Bias112
B.Classification of the Régie's Acts116
C.An Administrative Agency's Duty to Be Impartial128
D.Remedies132
III.The Charter146
A.Methodological Approach147
B.Sections 23 and 56(1) of the Charter: Legal Interpretation185
(1)The So-Called "Plain Meaning"187
(2)Immediate Context: Noscitur A Sociis195
(3)Broader Context: Provisions of Chapter III of Part I of the Charter201
(4)Context of the Statute as a Whole206
(5)Legislative Evolution223
(6)External Context236
C.Conclusion245
D.Consequences of the "Penal Significance" and "Non-Penal Significance" Categorization249
IV.Summary256
V.Disposition264
I. Introduction
74 This appeal brings the impartiality of the Quebec Régie des permis d'alcool into question and requires the Court to consider what remedies are available and appropriate in the circumstances. Since my colleague Justice Gonthier has summarized the relevant facts and the judicial history, I need not do so. The central issues in this appeal essentially relate to the following two points:
Did the Régie breach its duty to be impartial toward the respondent?
If so, what remedies are available under the applicable law?
75 Contrary to the opinion of my colleague Gonthier J., I believe that this appeal is governed solely by administrative law. Although I agree with the result reached by my colleague, I reach it using a different analysis. If I had concluded that s. 23 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (the "Charter"), applies to the facts that gave rise to this appeal, I would have expressed complete agreement with my colleague's reasons. In my view, however, s. 23 of the Charter is not applicable in the case at bar, for the following reasons.
II. The Régie's Duty to Be Impartial
A. General Considerations
(1) The Common Law's Applicability in Public Law
76 Although it may seem obvious, I believe it would be helpful to point out what I consider to be the proper starting point in analysing a situation like this one. The proceedings began after steps were taken to suspend or cancel permits issued by an agency created by a provincial statute, namely Quebec's Régie des permis d'alcool. There is no question that this is an administrative law matter. Administrative law, which is part of public law, is based on the common law in all Canadian provinces, including Quebec: see generally R. Dussault and L. Borgeat, Administrative Law: A Treatise (2nd ed. 1985), vol. 1, at pp. 19-21.
77 The fact that administrative law has its basis in the common law is very well established in the case law of both the Quebec courts and this Court. In Bisaillon v. Keable, 1980 2904 (QC CA), [1980] C.A. 316, the issue was the nature and scope of the principle that police sources of information are confidential. The three judges of the Quebec Court of Appeal, including myself, referred to the place of the common law in Quebec public law. I wrote the following (at p. 328):
[TRANSLATION] There can, it seems to me, be little question that this privilege of immunity for police sources of information is a principle recognized by the common law.
The appellant argued . . . that since this is a public law matter and the source of our law is the common law, the form and scope of this privilege are the same under both Canadian and Quebec public law. He relied, inter alia, on Canadian Broadcasting Corporation v. Cordeau, in which Beetz J., referring to Cotroni, expressed agreement with what Pigeon J. had said in rendering the unanimous judgment of the Court:
A rule of common law is not repealed by a statute that does not mention it (Alliance des professeurs catholiques de Montréal v. Labour Relations Board (1953 45 (SCC), [1953] 2 S.C.R. 140)).
I noted, however, that when the common law is codified, either in Quebec or elsewhere in Canada, the legislation takes precedence.
78 After pointing out all the relevant distinctions between our police system and the English system, Turgeon J.A. reached the same conclusion (at p. 322):
[TRANSLATION] I conclude that in the case at bar the appellant cannot rely on the English common law I have summarized above. Quebec legislation must prevail. . . .
79 In the same case, Monet J.A. (dissenting in the result) stated the following about the relationship between the common law and statute law in Quebec (at pp. 335-36):
[TRANSLATION] England's public law is the source of our public law. A number of fundamental legal rules are known not to have been incorporated into statutes.
The status of police officers, police forces and police chiefs is, of course, different here and in England in several respects. The same is true of the Attorney General's role, as noted by Turgeon J.A.
However, in public law, can these structural differences serve to justify overturning a substantive rule that is not essentially based on the degrees of police autonomy and independence? I do not think so. Except where a statute enacted by the competent legislative authority has totally abolished or eliminated such a rule in an express and unequivocal fashion, I am of the view that it remains part of our public law. We have not been referred to any such statute. Moreover, as far as I know, the Supreme Court of Canada has not overturned the rule, nor have the many consistent decisions of the courts of this country.
80 On appeal to the Supreme Court (Bisaillon v. Keable, 1983 26 (SCC), [1983] 2 S.C.R. 60, at p. 98), Beetz J., writing for the Court, adopted Monet J.A.'s position in the following terms:
Unless overturned by validly adopted statutory provisions, these common law rules must be applied in an inquiry into the administration of justice, which is thus a matter of public law.
81 According to the ratio decidendi of Keable, the common law generally applies in Quebec public law, subject to specific legislative amendments. That ratio was restated in Laurentide Motels Ltd. v. Beauport (Ville)(1986), 3 Q.A.C. 163. In that case, the issue was the scope of a municipality's delictual liability for negligence in providing firefighting services. Nichols J.A., who quoted, inter alia, L.-P. Pigeon, Rédaction et interprétation des lois (1965), provided an excellent review of the common law's place in Quebec public law (at pp. 193-95):
[TRANSLATION] The judgment lays down an extremely important principle: in matters of public law in the Province of Québec, the basic law is English law. Why? Because in keeping with the rule that general law is not derogated from beyond what is expressed, application of common law extends to all that is not formally excluded.
Three components of public law may create obligations and duties for municipalities: statute law, regulations and common law principles.
It thus becomes necessary to rely on the public common law that has traditionally governed our municipalities.
It therefore seems clear to me that it is necessary to turn to English public law.
82 Vallerand and Chouinard JJ.A. adopted concurring reasons that led them to the same disposition. On appeal (1989 81 (SCC), [1989] 1 S.C.R. 705), this Court reached the same conclusion. In my concurring opinion, I stated the following (at pp. 737-41):
The Quebec Act of 1774 sealed the fate of the two major legal systems that would govern the law applicable in Quebec: French civil law as it stood before 1760 with its subsequent amendments in Quebec for everything relating to property and civil rights, and the common law as it stood in England at that time, and as subsequently amended, for what related to public law.
Louis-Philippe Pigeon said the following (Drafting and Interpreting Legislation (1988), at pp. 65-66):
This is why, for instance, English law is the basis of municipal and school law, and of administrative law generally. Our Court of Appeal rendered a very important decision on this point: Langelier v. Giroux, 52 B.R. 113 (Que.) . . .
. . . the common law which applies in Canada in the area of public law, in criminal as in administrative law, in the absence of legislation excluding it, is the common law as subsequently amended by statute and case-law. . . .
In everything not related to property and civil rights, then, common law is the fundamental law in the Province of Québec. [Pigeon, supra, at p. 66.]
Public law has its origin in the common law, and common-law decisions must thus be examined to determine the state of public law in the area applicable in Canada.
83 Beetz J., writing for the majority, expressed the same view about the common law's place in Quebec public law (at pp. 721 and 726):
The public law of Quebec is acknowledged to be composed of two elements: statute and the common law. . . .
The second component of the public law is the common law. Two clarifications must be made at this point. First, only that part of the common law which is of public character is applicable. Because the common law makes, in principle, no distinction between public and private law, the identification of the "public" common law can be a difficult task. Nonetheless, because Quebec is a jurisdiction of two juridical regimes, the civil law and the common law, the identification must be made. Second, it is the common law as it exists at present that is applicable in Quebec under art. 356 C.C.L.C.
As my colleague indicates in her reasons, there is no statutory provision either exonerating the city of Beauport from, or subjecting the city of Beauport to, liability for damage caused by its acts pursuant to its discretionary powers. The resolution of the question of whether arts. 1053 et seq. C.C.L.C. apply to determine the city of Beauport's responsibility must therefore begin in the "public" common law.
84See also Maska Auto Spring Ltée v. Ste-Rosalie (Village), 1991 56 (SCC), [1991] 2 S.C.R. 3. It must therefore be concluded that in administrative law, it is the common law that applies both in Quebec and in the rest of Canada.
(2) Methodology of Legal Analysis in Administrative Law
85 That being said, it is necessary to determine the appropriate method of legal analysis for administrative law matters, by contrast with property and civil rights matters, since the two differ.
86 As noted in Quebec Civil Law: An Introduction to Quebec Private Law (1993), prepared by the Faculty of Law and the Institute of Comparative Law at McGill University, under the general editorship of Professors J. Brierley and R. Macdonald, the idea that there is a "basic fabric" or "background canvas" of the law exists in both the civil law and the common law (at pp. 100, 105 and 137):
[The Code] presumes itself to be a definitionally exhaustive synthesis of the general concepts governing all topics within its purview. Statutory law must either implicitly incorporate the structure of rights presented by the Code, or explicitly derogate from it.
. . .The premises are that there is no other source of legislative rules of equal status, and that none of the fundamental organizing framework of the Civil law is expressed in external legislative sources. It is in this theoretical rather than empirical sense that a Code can claim to be a gapless presentation of the basic fabric of the Civil law.
In view of the above features and ambitions, it is to be expected that the style of expression of a Code should differ from that of other legislative instruments such as statutes and regulations. . . .
. . . In fact, however, the Code is largely enabling, just like the uncodified rules in Common law systems, of which it is the legislated equivalent.
In playing this primary role, the Code serves, like the unenacted common law in the Common law tradition, as the background canvas and organizing framework for legal interpretation. [Italics and underlining added.]
87 To make the similarities and differences between the two basic fabrics or background canvases easier to understand, I must begin by going back to the end of the French regime. At that time, the "French" basic fabric of the law as a whole was made up of the custom of Paris, on which the judgments of the Sovereign Council of New France were superimposed, and Roman law and canon law, which were supplementary in nature. In 1760, with the Conquest, all of this basic fabric was destroyed and then replaced by the common law in all areas of the law. The common law thus became the basic fabric for all of Quebec law. In 1774, the "French" basic fabric was restored in the area of property and civil rights, thus supplanting the common law basic fabric in that area only. In 1866, the "French" basic fabric in the area of property and civil rights was largely codified; the common law basic fabric remained for the rest of the law.
88 There are therefore two basic fabrics in Quebec. In the area of property and civil rights, there is the "French" basic fabric, which is made up of the Civil Code, the Code of Civil Procedure and the old law in its supplementary role. In all other areas, the common law is the basic fabric. Statute law is superimposed on these two basic fabrics. The Charter appeared in 1975. It interacts with the two basic fabrics in terms of both legal preeminence and the methodology of legal analysis.
89 With regard to legal preeminence, it is clear that the Charter prevails over statute law because of its quasi-constitutional status: see Winnipeg School Division No. 1 v. Craton, 1985 48 (SCC), [1985] 2 S.C.R. 150. I myself have noted that quasi-constitutional legislation has "preeminence over ordinary legislation": Dickason v. University of Alberta, 1992 30 (SCC), [1992] 2 S.C.R. 1103, at p. 1154. As P.-A. Côté, The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 311, notes about the interpretative function of such preeminence:
Although not formally incorporated in the Constitution,266 Parliament has nevertheless endowed certain statutes with a predominance over other legislation. Among them, in federal law, is the Canadian Bill of Rights . . . and in Quebec law, the Charter of Human Rights and Freedoms. . . .
266 Even in the absence of a provision establishing its preponderance, a charter of rights prevails over other statutes. . . .
90 That being said, does the Charter also have the same preeminence over the two basic fabrics of Quebec law? In the area of property and civil rights, the Civil Code, despite its sociopolitical status as a "social constitution", is nevertheless a statute enacted by the provincial legislature. In my view, the Charter therefore prevails over the Civil Code. The Charter thus becomes the basic fabric as far as the Civil Code is concerned, because it takes precedence over all statute law. As noted in Quebec Civil Law: An Introduction to Quebec Private Law, supra, at p. 116:
Within the inventory of legislative sources of law, the Code occupies a unique place. As an enactment of a legislature, its normative status is inferior to that of the constitution, and to quasi-constitutional documents. But in contrast, as a Code expressing the general law, it is sometimes said to be presumptively superior to all other forms of legislation and, a fortiori, to delegated legislation. In theory, therefore, the Code can be seen as something more than an ordinary enactment, and it is significant at least symbolically that it has never been reproduced in the Revised Statutes of Quebec. [Emphasis added.]
91 With regard to the constitutional aspects of this specific structure that our legal system has, see H. Brun and G. Tremblay, Droit constitutionnel (2nd ed. 1990), at pp. 9-37.
92 Therefore, in terms of the methodology of analysis applicable in the area of property and civil rights, legal analysis normally proceeds on the basis of the following hierarchy, and in the following order: the Charter is looked at first, since it is the basic fabric of statute law, and consideration is then given successively to the civil law -- that is, the Civil Code, the Code of Civil Procedure and the old law -- statute law, academic commentary and finally court decisions.
93 However, the case at bar does not fall within the area of property and civil rights: it falls under administrative law, a part of public law, where the common law and the common law methodology apply. Are legal preeminence and the methodology of legal analysis the same when the common law is applicable?
94 First of all, it is clear that the Charter has the same legal preeminence over the common law: any common law rule can be codified, replaced or repealed by statute law and, a fortiori, by a quasi-constitutional statute.
95 However, what methodology of legal analysis must be used with respect to the Charter's interaction with the common law basic fabric? To answer this question, it is necessary to examine how the interaction between the common law and statute law is treated. As the common law sees it, statute law, even when it has quasi-constitutional status, is still law enacted by a legislature. In the common law, the analysis of the interaction between the basic fabric and statute law must begin with the following presumptions:
The common law has its foundations in those general and immutable principles of justice which should regulate the intercourse of men with men, wherever they may reside. The statute law emanates from the wisdom of the legislature of the day, varies with varying circumstances, and consists of enactments which may be beneficial at one time and injurious at another . . . . [Uniacke v. Dickson (1848), 1 N.S.R. 287, at p. 290, per Halliburton C.J.]
The word common' . . . means general', and the contrast to common law is special law. Common law is in the first place unenacted law; thus it is distinguished from statutes and ordinances. . . . Common law is in theory traditional law -- that which has always been law and still is law, in so far as it has not been overridden by statute or ordinance. [F. W. Maitland, The Constitutional History of England (1908), at pp. 22-23.]
The starting point, therefore, is an assumption . . . that the common law of England is a comprehensive body of rules by reference to which every conceivable problem can be determined. Only a small portion of that body of rules has at any particular time been "found" and set forth in judicial decisions for our guidance. The rest remains to be found and applied from time to time as circumstances require. It follows that, in theory at least, the common law never changes. When a rule of the common law is found and enunciated for the first time, that is not a new law. It has always been the law but is now found for the first time. . . .
. . . However it is the theory of our system of law that the ultimate court of appeal is finding and expounding the true rule of the common law as it has always been. [W. R. Jackett, "Foundations of Canadian Law in History and Theory", in O. E. Lang, ed., Contemporary Problems of Public Law in Canada (1968), 3, at p. 28.]
Except in so far as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make any alteration in the common law or to change any established principle of law. . . . [Halsbury's Laws of England (3rd ed. 1961), vol. 36, at p. 412, at para. 625.]
. . . Acts should not be taken to limit common law rights, or otherwise alter the common law, unless they do so clearly and unambiguously. . . . [Halsbury's Laws of England (4th ed. 1995), vol. 44(1), at p. 876, at para. 1438.]
A new statutory remedy never takes away the old [common law remedy] unless the new is given in substitution of the old or henceforth prohibits either expressly or by necessary implication those concerned from resorting to the old mode of relief.
. . . where, in any particular case, it appears that the [statutory] rules . . . are left to implication then it is a question to be determined upon an examination of the statute as a whole how far the rights of the parties are to be governed by the rules of law which, apart from the statute, are applicable. . . . [Smith v. National Trust Co. (1912), 1912 56 (SCC), 45 S.C.R. 618, at pp. 624 (Idington J.) and 641 (Duff J.).] [Italics and underlining added.]
96 A good example of the application of these presumptions in a legal analysis of administrative law can be found in Zaidan Group Ltd. v. London (City) (1990), 1990 2624 (ON CA), 71 O.R. (2d) 65 (C.A.). In that case, the appellant was claiming interest on a municipal tax refund pursuant to the common law principle of unjust enrichment. Carthy J.A., writing for the Ontario Court of Appeal, began by analysing and setting out the law applicable to the case from the perspective of the common law. He then analysed the interaction between the common law and statute law, specifically the Municipal Interest and Discount Rates Act, S.O. 1982, c. 44. He made the following methodological comment at p. 69:
The common thread of unfairness recognized by the common law breaks when a legislative body acts within its jurisdiction and stipulates, as here, that the municipality shall levy assessed amounts. . . . The statute could equally have said that a taxpayer must pay the assessed amounts without any recourse by way of complaint. The unfairness of such a statute would be universally denounced but, if it were constitutionally competent to the legislature, the common law would have nothing to say on the subject. There is no question of a gap being left in the legislation for the common law to fill. . . .
Austin J., relying upon this court's decision in Windsor Roman Catholic Separate School Board v. Windsor (City) (1988), 1988 4603 (ON CA), 64 O.R. (2d) 241 [C.A.] . . . characterized the relevant statutory provisions as a complete statutory code which excludes the common law. I am saying much the same thing but putting it in terms of the ambit of the principle of unjust enrichment. . . . [Emphasis added.]
97 Zaidan Group thus supports the following methodological proposition. To determine what interaction there is between the common law and statute law, it is necessary to begin by analysing, identifying and setting out the applicable common law, after which the statute law's effect on the common law must be specified by determining what common law rule the statute law codifies, replaces or repeals, whether the statute law leaves gaps that the common law must fill and whether the statute law is a complete code that excludes or supplants all of the common law in the specific area of law involved. That judgment was unanimously affirmed by this Court: Zaidan Group Ltd. v. London (City), 1991 53 (SCC), [1991] 3 S.C.R. 593. See also Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99, in which La Forest J., writing for the majority, used exactly the same methodology in considering the interaction between the common law and statute law in Ontario family law.
98 Does the applicability of that methodology differ in cases involving quasi-constitutional statute law? In my view, it does not: precisely the same methodology must be used. In this regard, I refer to Bhadauria v. Seneca College of Applied Arts and Technology(1979), 1979 71 (ON CA), 27 O.R. (2d) 142, in which the Ontario Court of Appeal used this method to resolve the legal issue involved. In that case, the Ontario Court of Appeal recognized a new common law tort, the tort of discrimination, on the basis, inter alia, of the public policy expressed in the Ontario Human Rights Code, R.S.O. 1970, c. 318. Before considering the Ontario Human Rights Code, the court analysed, identified and set out the common law in light of the facts of the case. After resolving the issue from the perspective of the common law, the court then examined what interaction there might be between the common law and the quasi-constitutional statute law. The court concluded as follows, at p. 150:
. . . it is appropriate that these rights receive the full protection of the common law. . . . [T]he common law must, on the principle of Ashby v. White et al., supra, afford her a remedy.
I do not regard the Code as in any way impeding the appropriate development of the common law in this important area. . . . Nor does the Code, in my view, contain any expression of legislative intention to exclude the common law remedy. [Emphasis added.]
99 This Court reversed the Ontario Court of Appeal's decision on the ground that the Ontario Human Rights Code is a complete code that excludes the common law: Seneca College of Applied Arts and Technology v. Bhadauria, 1981 29 (SCC), [1981] 2 S.C.R. 181, in which Laskin C.J., writing for the Court, stated the following at pp. 194-95:
The view taken by the Ontario Court of Appeal is a bold one and may be commended as an attempt to advance the common law. In my opinion, however, this is foreclosed by the legislative initiative which overtook the existing common law in Ontario and established a different regime which does not exclude the courts but rather makes them part of the enforcement machinery under the Code.
For the foregoing reasons, I would hold that not only does the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed in the Code. [Emphasis added.]
100 This Court reversed the Ontario Court of Appeal's position on the ground that the quasi-constitutional statute law in question was a complete code. However, the following proposition necessarily underlies the ratio decidendi of Bhadauria as far as methodology is concerned: to determine what interaction there is between the common law and the quasi-constitutional statute law, it is necessary to begin by analysing, identifying and setting out the applicable common law; the effect of the quasi-constitutional statute law on the common law must then be specified. The same distinction and reasoning underlie Canada Trust Co. v. Ontario Human Rights Commission(1990), 1990 6849 (ON CA), 69 D.L.R. (4th) 321 (Ont. C.A.) (see pp. 344-45, per Tarnopolsky J.A.).
101 In short, the methodology can be summarized as follows. In both Quebec and Canadian administrative law, the common law applies and the common law methodology must be used rather than a methodology based on the civil law. The analysis must proceed as follows: (1) identify the common law rules applicable to the particular case, that is, (1a) the common law already enunciated by the courts and (1b) any common law not yet enunciated, if necessary; and (2) determine the effect that the provisions of the quasi-constitutional statute under consideration have on the applicable common law rules, that is, (2a) whether the provisions apply to the particular case and, if so, (2b) whether the provisions have the effect of (i) codifying, (ii) replacing or (iii) repealing the common law, and (2c) whether the provisions are a complete code that excludes or supplants the common law in a specific area of law.
102 This is what I intend to do. I will begin by considering this appeal from the perspective of the common law and I will then examine the Charter issues.
103 From this point of view, it must be asked whether the Régie's acts are subject to judicial review. The answer to this question depends to some extent on how the acts in question are classified. If they are reviewable, what duties does the Régie have toward the respondent? Were those duties breached? If so, what courses of action should be open to the respondent and what type of remedies should be granted?
104 Before directly addressing the issue of how to classify the Régie's acts in the case at bar, and in order to make that issue easier to resolve, the concepts of impartiality and independence in general, and as they must be viewed in the instant case, should be clarified. (3)Distinctions Between Independence and Impartiality
105 The independence of a quasi-judicial tribunal from the executive branch of government does not in itself guarantee that the tribunal will be impartial. It is conceivable that a tribunal might be relatively independent and yet biased for various reasons. In such a hypothetical situation, the relevant issue would be not the relative degree of independence, but the issue of bias itself. In R. v. Lippé, 1990 18 (SCC), [1991] 2 S.C.R. 114, at p. 139, this Court distinguished the concepts of impartiality and independence:
. . . judicial independence is but a "means" to this "end". If judges could be perceived as "impartial" without judicial "independence", the requirement of "independence" would be unnecessary. However, judicial independence is critical to the public's perception of impartiality. Independence is the cornerstone, a necessary prerequisite, for judicial impartiality.
However . . . judicial independence may not be sufficient. Judicial independence is only one component of judicial impartiality. . . . [Emphasis added.]
106 Independence is a necessary, but not sufficient, prerequisite for impartiality. This statement recalls a passage from MacKeigan v. Hickman, 1989 40 (SCC), [1989] 2 S.C.R. 796, at p. 827 (cited in Lippé, supra, at p. 139):
As this Court stated in MacKeigan . . . judicial independence is an underlying condition which contributes to the guarantee of an impartial hearing . . . . [Emphasis in original.]
107 Thus, from an analytical point of view, the concept of judicial independence is subordinate to the concept of impartiality. Independence is not an end in itself; it is merely one characteristic of our judicial system that seeks to achieve another purpose: impartiality.
108 In practice, no administrative tribunal can be completely independent of the executive. The courts themselves are not perfectly independent. As my colleague McLachlin J. noted in MacKeigan: "It is impossible to conceive of a judiciary devoid of any relationship to the legislative and executive branches of government" (p. 827). The independence of tribunals is therefore relative and varies with their decision-making level. According to Brun and Tremblay, supra, at p. 937:
[TRANSLATION] The requirement of independence under s. 23 is stricter for the courts than for administrative tribunals.
109 This proposition, while true for certain aspects of independence, must be qualified. Variability in the degree of independence results from the nature of tribunals, which need a certain flexibility because of institutional constraints. However, depending on their decision-making level, it might be argued that the requirement of independence should in some respects be stricter for administrative tribunals than for the courts, in so far as their decisions are final and not subject to appeal. Since even the courts do not have complete independence and since the independence of administrative tribunals is variable, independence is an adaptable concept that can be viewed as a continuum. When the issue of independence is raised in a judicial review context, the courts must assess the necessary degree of independence in each case based on the nature of the administrative tribunal, the institutional constraints it faces and the peremptory nature of its decisions.
110 While independence can be seen as a continuum, the same is not, in my view, true of impartiality. The concept of impartiality should be seen as a dichotomy involving two states: that of bias and that of impartiality. The only choice in such a dichotomy is between bias and impartiality, meaning that there is no intermediate option and thus no continuum. In the trial decision that gave rise to this appeal, [1993] R.J.Q. 1877, Vaillancourt J. referred a number of times to the principle that impartiality should be viewed in this manner (at pp. 1897, 1900 and 1904):
[TRANSLATION] There is no compromising when it comes to impartiality, which cannot be "adjusted" or "decreased". A decision maker, whether it is a court or a quasi-judicial tribunal, cannot be permitted to be "almost" impartial.
These agencies have certainly become indispensable to the efficient operation of our government, as they have in most modern democracies, but is that a sufficient reason to permit their decisions not to be impartial? I do not think so, first and foremost because impartiality must, I repeat, be beyond reproach and also because everyone has a fundamental right to justice of that quality. . . .
I have also expressed my view of impartiality and independence in light of the cases cited above. While the former cannot be diminished, lesser degrees of the latter can exist, depending on the circumstances. [Emphasis added.]
111 I agree, and none of the three Court of Appeal judges really questioned the idea that there is a dichotomy between bias and impartiality -- rightly so, since the argument that a tribunal can be "more or less impartial" or "just a little biased" seems rather difficult to justify. The argument that "the tribunal either is or is not impartial" seems to be much stronger.
(4)Distinctions Between Bias and Reasonable Apprehension of Bias
112 In my view, the distinction between bias and reasonable apprehension of bias must be clarified at this point. While bias is an indivisible concept, reasonable apprehension of bias must be seen as varying with the tribunal in question and all the relevant circumstances.
113 I am generally in agreement with my colleague Gonthier J.'s analysis of the concept of reasonable apprehension of bias in this appeal. However, I think it appropriate to add something to that analysis.
114 As noted by my colleague, it is true that in the context of a criminal trial, the smallest detail capable of casting doubt on the judge's impartiality will be cause for alarm, whereas greater flexibility must be shown toward administrative tribunals. However, such flexibility must not be shown in respect of impartiality: the requirement of impartiality cannot be relaxed. Flexibility must rather come into play in the specific content of the test for reasonable apprehension of bias in each individual case.
115 Thus, it is the reasonableness of the apprehension that will vary among administrative tribunals, not their intrinsic impartiality. In other words, a given reason for apprehending bias may be reasonable in a criminal trial but unreasonable in a quasi-judicial hearing. In every case, however, the decision-making body must be perfectly impartial; if it is biased, it will immediately violate the nemo judex in propria sua causa debet esse rule. B. Classification of the Régie's Acts
116 It is well settled in our law that there are four possible categories of government acts: quasi-judicial, administrative, legislative and ministerial: see generally Dussault and Borgeat, supra, at pp. 240-56. In a case such as this one, the most relevant approach is to begin by asking the following question: what is the Régie alleged to have done? The respondent has not alleged either a jurisdictional error or a violation of the audi alteram partem rule. The allegations against the Régie all fall under the heads of impartiality and independence, that is, in the general category covered by the nemo judex in propria sua causa debet esse rule.
117 For the purposes of our analysis, the issue of independence is subordinate to that of impartiality. If bias is found, the issue of independence becomes totally moot. The opposite is not true: if a direct finding of bias cannot be made, then an analysis of independence will be necessary. Having made this methodological clarification, I will first consider the classification of the Régie's acts from the viewpoint of impartiality in general.
118 To what categories of government acts will the nemo judex rule be applicable as a matter of law? Ministerial acts by nature involve no discretion. Absent discretion, the nemo judex rule cannot apply, since there cannot be any bias. Legislative acts are, by nature and conceptually speaking, totally discretionary and the nemo judex rule therefore does not apply to them either.
119 If the act is ministerial, the decision maker is strictly required to adhere to a certain norm: see generally Dussault and Borgeat, supra, at p. 248:
Thus, the norm gives them an indication of the specific way in which decisions must be made. It leaves no possibility for them to exercise judgment, skill or discretion and no freedom to evaluate or to interpret. To use the terms of the Royal Commission of Inquiry into Civil Rights in Ontario, the administrator is then "a mere instrument or automaton, and has no `authoritative' power to decide whether he will act or what he will do". He or she may even be termed "a slave of the Act or regulation". [Emphasis added.]
120 If the act is legislative rather than administrative, the body has no duty to act fairly unless the enabling legislation so provides: Attorney General of Canada v. Inuit Tapirisat of Canada, 1980 21 (SCC), [1980] 2 S.C.R. 735. If the legislative act involves general policy or public convenience rather than an individual or unique concern, the decision in question is "final and not reviewable in legal proceedings": National Anti-Poverty Organization v. Canada (Attorney General), 1989 9498 (FCA), [1989] 3 F.C. 684 (C.A.), at p. 700; leave to appeal to this Court refused, [1989] 2 S.C.R. ix.
121 Every quasi-judicial tribunal has a duty to act in accordance with natural justice: Alliance des professeurs catholiques de Montréal v. Labour Relations Board of Quebec, 1953 45 (SCC), [1953] 2 S.C.R. 140, at p. 154 (per Rinfret C.J.); Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, 1978 24 (SCC), [1979] 1 S.C.R. 311. Likewise, every public body that has the power to decide an issue affecting individual rights or interests -- that is, every body that performs administrative acts -- has a duty to act fairly: Martineau v. Matsqui Institution Disciplinary Board, 1979 184 (SCC), [1980] 1 S.C.R. 602. As noted by Laskin C.J. in Nicholson, at p. 324:
I accept, therefore, for present purposes and as a common law principle what Megarry J. accepted in Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373, at p. 1378, "that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness".
122 It is well known that the principles of natural justice include the nemo judex rule: see generally Dussault and Borgeat, Administrative Law: A Treatise (2nd ed. 1990), vol. 4, at p. 296. The duty of fairness also includes the nemo judex rule: In re H. K. (An Infant), [1967] 2 Q.B. 617, at p. 630, Lord Parker C.J.:
I myself think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection. . . . That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. [Emphasis added.]
123In Energy Probe v. Atomic Energy Control Board, 1984 5388 (FCA), [1985] 1 F.C. 563 (C.A.), at p. 583, leave to appeal to this Court refused, [1985] 1 S.C.R. viii, Marceau J.A. expressed the same opinion:
The law of bias was developed with regard to the exercise of all sorts of judicial or quasi-judicial functions, so that, in the process, it was easily extended from courts to tribunals and to all other bodies called upon to determine questions affecting the civil rights of individuals.
124 Accordingly, it is clear that the nemo judex rule is a mandatory minimum that applies to administrative acts as part of the duty to act fairly, even if that duty does not necessarily include all of the rules of natural justice. In other words, compliance with the nemo judex rule is a necessary prerequisite for compliance with the duty to act fairly: it follows that any violation of the nemo judex rule necessarily involves a breach of the duty to act fairly.
125 I noted above that impartiality, that is, the nemo judex rule, is a dichotomy: either it applies or it does not apply. In the case at bar, it is agreed that the Régie's acts are neither ministerial nor legislative but rather administrative or quasi-judicial. The nemo judex rule applies irrespectively of whether they are classified as administrative or as quasi-judicial. The issue of whether they should be classified as administrative or quasi-judicial is therefore irrelevant in the instant case and does not have to be resolved to dispose of the appeal.
126 Having said this, I nevertheless agree with the manner in which my colleague Gonthier J. analysed this issue. In a case in which acts did have to be classified to dispose of an appeal, I would use exactly the same analysis.
127 In conclusion, the acts alleged against the Régie are either administrative or quasi-judicial and are subject to the duty of impartiality included in the nemo judex rule.
C. An Administrative Agency's Duty to Be Impartial
128 Given that the Régie has a duty to be impartial, what is the specific nature of that duty in the case at bar?
129 Since impartiality is not a continuum, an administrative agency will either comply with the duty by being impartial or breach the duty by being biased; there is no intermediate situation. The fundamental question that must be answered in each case is the following: was or is the administrative agency biased? Since it is impossible to have direct access to the psychological foundations of bias in a decision maker's mind, it is necessary to rely on an indicator that allows the question to be answered judicially. That indicator is reasonable apprehension of bias, which I have already discussed. The legal issue thus becomes the following: would the administrative agency cause an informed person to have a reasonable apprehension of bias in a substantial number of cases? If so, a legal finding of bias will result; if not, a legal finding of impartiality will be made.
130 In the case at bar, the courts found after analysing the evidence, as my colleague Gonthier J. has also found, that the Régie does give rise to such a reasonable apprehension of bias. There is no reason to intervene in the determination of these findings of fact. In the instant case, it has therefore been established that the Régie would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases. Accordingly, it should be found that the Régie is biased in this case. By implication, the Régie has violated the nemo judex rule and thus breached its duty to act fairly. This breach opens the door to the common law remedies applicable in the circumstances, account being taken of the courts' discretion with respect to prerogative remedies.
131 Since a breach of the duty to act fairly has been shown on the ground of bias -- in this case institutional, organizational bias -- the issue of the agency's independence becomes moot. As I have already mentioned, independence is not a factor that is per se part of this analysis: it is merely a factor that is subordinate to impartiality because, given that no tribunal can be completely independent, independence becomes relevant only as an aspect of impartiality. Conceptually, independence is only one element in the broader category of impartiality. Having already found that the general duty to be impartial was breached, a specific analysis of independence would add nothing to my conclusions in the case at bar and is therefore unnecessary.
D. Remedies
132 The common law remedies available in the circumstances are the writs of certiorari, prohibition, mandamus and the declaratory action. These common law remedies apply in the same manner in every Canadian province, including Quebec. In Quebec, however, the Code of Civil Procedure, R.S.Q., c. C-25, has established a procedure for seeking remedies that differs from the common law procedure. Certiorari and prohibition have been merged into one remedy: evocation, which can be sought by motion under art. 846 of the Code of Civil Procedure. Mandamus can be sought by motion under arts. 834 to 837 and 844 and 845 of the Code of Civil Procedure. Finally, a declaration can be obtained under arts. 453 et seq. of the Code of Civil Procedure.
133 In the case at bar, the respondent brought a motion in evocation under art. 834 of the Code of Civil Procedure. The respondent asked that the Régie's decision be quashed and set aside. As I have noted, I agree with my colleague Gonthier J. that certain organizational aspects of the Régie would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases. I also agree with my colleague that the Régie must make certain organizational changes, such as procedures to separate functions. Since the respondent's application is well founded, there is no reason to decline to exercise the remedial discretion conferred on the courts by the Code of Civil Procedure. I would therefore allow the motion in evocation and quash and set aside the Régie's decision.
134 I note that the respondent has chosen not to seek a declaratory remedy, which it could have done through a motion for a declaratory judgment under arts. 453 et seq. of the Code of Civil Procedure. The only declaratory conclusion sought by the respondent in its motion under art. 834 of the Code of Civil Procedure is the following:
[TRANSLATION] SAY AND DECLARE that s. 2 of the Act respecting liquor permits is invalid and of no force or effect on the basis that it violates s. 23 of the Charter of Human Rights and Freedoms;
135 If the declaratory action provided for in arts. 453 et seq. had been instituted and argued, it would have been possible to grant this conclusion, but in the circumstances I will consider that action on an incidental basis only.
136 I believe it will be helpful to briefly review the history of the declaratory action that is now codified in art. 453. The declaratory action originated in France in the 14th century, found its way to Scotland where it became known as declarator starting in the 16th century, and was then adopted by British equity in the 19th century: see L. Sarna, The Law of Declaratory Judgments (2nd ed. 1988); I. Zamir, The Declaratory Judgment (2nd ed. 1993). The declaratory action was not codified in Quebec until 1965; before then, the declaratory judgment concept was little known in that province.
137 I note, however, that today this action has two historical components: the common law since the 19th century and the civil law since 1965. Even before 1965, it was possible under Quebec law to bring a common law declaratory action. In Saumur v. Procureur général de Québec, 1964 67 (SCC), [1964] S.C.R. 252, the appellants sought to have the Act respecting freedom of worship and the maintenance of good order declared invalid before they had even suffered any injury thereunder. Taschereau C.J. dismissed the appeal, without examining the Act's constitutionality, on the ground that there was no existing and actual interest in a dispute. What the judgment in fact decided was that the common law declaratory action was available in Quebec in the public law context, although it was in fact rarely used.
138 In my view, since Quebec public law is governed by the common law, the declaratory action has been available in Quebec in the public law context since the beginning of the 19th century and will remain available until it is changed by legislation. In the property and civil rights context, the declaratory action has been available only since it was codified in 1965. Common law declaratory judgments have been rendered in the British colonies since the beginning of the 19th century: see, for example, Taylor v. Attorney-General (1837), 8 Sim. 413, 59 E.R. 164, where the High Court of Chancery rendered a declaratory judgment in a Nova Scotia case.
139 Thus, Quebec public law includes a common law declaratory action that is available in the administrative law context. Such an action can be brought today in the same manner as a civil law declaratory action, that is, under art. 453 of the Code of Civil Procedure. In administrative law, this common law declaratory action makes it possible to obtain a declaration concerning the parties' rights in relation to each other, including the rights of an individual and an administrative agency pursuant to an enabling statute: see generally Zamir, supra, at pp. 212-16.
140 In the case at bar, the appropriate remedy in this regard would have been a declaration under art. 453 of the Code of Civil Procedure that the relevant provisions of the statute are of no force or effect between the parties.
141 However, this common law remedy does not have the same scope as the declaratory remedy available under the Charter. The courts do not have the power, either at common law or in equity, to go against parliamentary sovereignty by striking down legislative provisions: British Railways Board v. Pickin, [1974] A.C. 765 (H.L.). Likewise, the Code of Civil Procedure establishes that a declaratory judgment is binding only on the parties to the case:
Any person who has an interest in having determined immediately . . . any right, power or obligation which he may have under a . . . statute . . . may, by motion to the court, ask for a declaratory judgment in that regard.
A declaratory judgment rendered in accordance with this chapter has the same effect and is subject to the same recourses as any other final judgment.
142 Thus, such a declaratory judgment would have had the legal effect of making the relevant provisions of no force or effect as against the respondent only. The legal effect would have been inter partes in nature. Of course, pursuant to the res judicata principle, the judgment would also have had a legal effect in respect of the parties' future relations. Moreover, pursuant to the stare decisis principle, it would have had a legal effect and persuasive authority in respect of the Régie's relations with third parties.
143 However, and I consider this point to be of crucial importance, the common law remedy would not have had the effect of invalidating the statute erga omnes, which was the effect of the application of the Charter to this case by the courts below. The invalidation of a statute erga omnes, by creating a veritable legal vacuum, gives rise to a situation in which it becomes urgent for the legislature and the administrative agencies involved to amend enabling statutes and alter organizational structures, all of which they must do in a reactive fashion. The remedy under art. 453, since it is inter partes in nature, allows for a more flexible approach that provides institutions with an opportunity to reform the system more strategically.
144 This does not mean that the Charter remedy declaring a statute invalid erga omnes must always be avoided. It is easy to imagine many circumstances and situations in which such a remedy would be necessary. However, I think that this case does not have the requisite characteristics to justify such an erga omnes remedy, even with respect to a single section of the enabling statute. In the case at bar, the appropriate declaratory remedy was an inter partes declaratory judgment under art. 453 of the Code of Civil Procedure.
145 Having identified the common law rules applicable to the case at bar, I must still determine the effect of the Charter's provisions on the common law. It must first be determined whether those provisions are applicable to the instant case. As I will show, they are not. In my view, that disposes of this appeal, and I will examine the issue from a Charter perspective on an alternative basis only.
III. The Charter
146 The issue in the case at bar involves the interpretation of ss. 23 and 56(1) of the Charter, particularly the concept of a quasi-judicial tribunal. The interpretation method is thus of fundamental importance here, which is why I intend to begin by discussing it.
A. Methodological Approach
147 This appeal provides a good opportunity to clarify certain methodological points underlying the essential activity of legal interpretation. With the rapid development of modern administrative law, the importance of legal interpretation is continually increasing, in proportion to the growing size of our administrative system and the complexity of the issues it must address. Legal interpretation, as a separate discipline, is therefore bound to become an essential part of the knowledge, skills and abilities that contemporary jurists must possess.
148 The following comments by W. N. Eskridge, Dynamic Statutory Interpretation (1994), at pp. 6-8, take on their full meaning in the context of this appeal: Some of [my] argumentation . . . draws on prior work in common law and, especially, constitutional theory. Because statutory interpretation theory languished for so long, its renaissance has borrowed heavily from existing scholarship in these areas. Nonetheless . . . statutory interpretation theory is distinct from, and intellectually independent of, common law and constitutional theory. For example, statutory interpretation involves much richer authoritative texts than common law or constitutional interpretation. . . . More than common law or constitutional interpretation, statutory interpretation is a holistic enterprise, permitting deep involvement of the interpreter in the structure and history of a statutory text, as well as its formal relation to other statutory provisions.
The institutional features of the law implementation process offer exciting intellectual possibilities for the study of statutory interpretation because that field -- much more than common law or constitutional interpretation -- demands a theory of Congress (and the presidency) as well as a theory of language and interpretation. . . .
Finally, statutory interpretation is the most important form of legal interpretation in the modern regulatory state because it is as much agency-centered as judge-centered. Although not inevitably judge-made, our common law as well as constitutional traditions are juricentric. This renders them less relevant for thinking about the creation of public policy in the modern administrative state. [Emphasis added.]
149 In view of the scope of these changes, which are fuelling the transformation of this area of legal thought, I believe the time has come to set out in more precise terms the basic methodological approach that should normally be used by jurists engaged in legal interpretation.
150 The concept of precision (or imprecision) in the methodological approaches used in law is, in my view, clearly different from the concept of precision in the substantive content of the law. First of all, these two concepts can be distinguished by the impact that their imprecision or vagueness may have. While imprecision in the substantive law may potentially affect a certain segment of our society, vagueness in legal methodology has effects that pervade the entire judicial system in its broadest sense and are accordingly felt by society as a whole. It is easy to see that if vagueness were, hypothetically, introduced into methodological concepts -- such as the rules of legal interpretation -- this would have a broader systemic impact than imprecision in some specific aspect of substantive law.
151 Next, a distinction must be made in terms of the jurisdiction of the courts -- both this Court and the other levels of the judicial system -- in respect of these two concepts. Even if, according to the principle of parliamentary sovereignty, the judiciary does not legislate and merely applies the substantive law to specific cases, it retains a residual normative jurisdiction derived from the common law. In areas of the law outside substantive law, this jurisdiction relates, for example, to the rules of practice of the adversary process and, in so far as it is not codified, the law of evidence. In my view, the methodology of legal interpretation is one of those areas of the law in respect of which the judiciary must exercise its normative jurisdiction. I agree with the formulation of this principle suggested by Côté, supra, at pp. 8-9:
The official theory of interpretation is first and foremost a normative theory, a doctrine; that is, an intellectual construction which prescribes the manner in which the phenomenon of legal interpretation should be conceived, sets out the objectives which the interpreter must pursue, and indicates the means that he may and may not, or should and should not, apply. This theory provides a model for the jurist, in both the search for meaning of the enactment (the heuristic function of the theory), and in the justification of the meaning which is adopted in a given case (the justificative function of the theory). The official theory does not so much tend to describe or explain the phenomenon of interpretation as to impose on the legal community a correct theoretical mode, a doctrine, an orthodoxy. [Emphasis added.]
152 I will now review the model for the jurist that has been prescribed by this Court since the Canadian Charter of Rights and Freedoms was enacted in 1982. In the past, this Court relied on the so-called "plain meaning rule" methodological approach, which has been described as follows (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; applied in Stubart Investments Ltd. v. The Queen, 1984 20 (SCC), [1984] 1 S.C.R. 536, at p. 578):
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. This principle is expressed repeatedly by modern judges, as, for example, Lord Reid in Westminster Bank Ltd. v. Zang, and Culliton C.J. in R. v. Mojelski. Earlier expressions, though in different form, are to the same effect; Lord Atkinson in Victoria (City) v. Bishop of Vancouver Island put it this way:
In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense. [Emphasis added.]
153 In reality, there are two successive stages in this "plain meaning rule" process: first, by default, the so-called "plain meaning" of the words must be used; second, if -- and only if -- there is something in the context to indicate that the meaning differs from the "plain meaning", then it is possible to "depart" from that "plain meaning". According to this rule, it is only at this second stage that the legal interpretation process should begin; if the meaning seems prima facie clear, then this rule functions as a sort of methodological estoppel that seeks to prevent the legal interpretation process from beginning. According to Côté, supra, at pp. 241-42, this "plain meaning" method has serious shortcomings: The ["plain meaning"] Rule also regulates. It invites the judge to conclude his study if, upon reading the words of the law alone, the meaning is clear. Understood in this way, the rule of literal interpretation seems virtually to contradict the basic principles of linguistic communication.
It should not be forgotten that research in semantics has shown that words only take on their real meaning when placed in context. The meaning of words and sentences is crystallized by the context, and in particular by the purpose of the message. Any interpretation that divorces legal expression from the context of its enactment may produce absurd results. [Emphasis added.]
154 In my view, the principal failing of the "plain meaning" process is the following: it obscures the fact that the so-called "plain meaning" is based on a set of underlying assumptions that are concealed in legal reasoning. In reality, the "plain meaning" can be nothing but the result of an implicit process of legal interpretation. As noted by Côté, supra, at p. 240:
But this is already an "interpretation", although not necessarily a conscious one.127
127 . . . "The process of recognizing the clarity or obscurity of a text always implies at least an implicit interpretation of it . . ."
155 The "plain meaning" rule has been criticized in England for the same reasons: M. Zander, The Law-Making Process (4th ed. 1994), at pp. 121-27:
. . . the literal rule has also been subjected to severe criticism:
(1) The most fundamental objection to the rule is that it is based on a false premise, namely that words have plain, ordinary meanings apart from their context.
(3) The plain-meaning approach cannot be used for general words, which are obviously capable of bearing several meanings. (4) Not infrequently the courts say that the meaning of the words is `plain' but then disagree as to their interpretation.
(5) . . . As Professor Glanville Williams has pointed out, often one party is contending for an `obvious' meaning of the words while the other argues for a secondary meaning of the words. The choice cannot then be made sensibly without regard to the context.
Even the most die-hard advocates of the literal approach sometimes lapse into some alternative method . . . .
The result of the inevitable inconsistency as to the application of the literal approach is that it loses much of its claim to be the basis of greater certainty.
The literalist approach makes too little allowance for the natural ambiguities of language, for the frailties of even the most skilled of draftsmen and for the impossibility of foreseeing future events. . . .
The literal approach is based on a narrow concentration on the actual words used, to the exclusion of the surrounding circumstances that might explain what the words were actually intended to mean. . . . It is a characteristic of some primitive legal systems that they attach excessive weight to the importance of words so that, for instance, the plaintiff who makes a slip in stating his claim is nonsuited. The literal approach to language by lawyers may be a form of this tradition. The draftsman is in effect punished for failing to do his job properly (except that it is his client, or in the case of statutes, the wider community, that bears the cost). The punitive or disciplinarian school of judicial interpretation remains a powerful element in the operation of the English legal system.
A final criticism of the literal approach to interpretation is that it is defeatist and lazy. The judge gives up the attempt to understand the document at the first attempt. Instead of struggling to discover what it means, he simply adopts the most straightforward interpretation of the words in question -- without regard to whether this interpretation makes sense in the particular context. It is not that the literal approach necessarily gives the wrong result but rather that the result is purely accidental. It is the intellectual equivalent of deciding the case by tossing a coin. The literal interpretation in a particular case may in fact be the best and wisest of the various alternatives, but the literal approach is always wrong because it amounts to an abdication of responsibility by the judge. Instead of decisions being based on reason and principle, the literalist bases his decision on one meaning arbitrarily preferred.
The approach is mechanical, divorced both from the realities of the use of language and from the expectations and aspirations of the human beings concerned and, in that sense, it is irresponsible. [Underlining added; italics in original.]
156 The same type of criticism of legal interpretation has been made in the United States: N. J. Singer, Statutes and Statutory Construction (5th ed. 1992), vol. 2A, at pp. 5-6:
A frequently encountered rule of statutory interpretation asserts that a statute, clear and unambiguous on its face, need not and cannot be interpreted by a court and that only statutes which are of doubtful meaning are subject to the process of statutory interpretation. . . . However, this rule is deceptive in that it implies that words have intrinsic meanings. . . .
The assertion in a judicial opinion that a statute needs no interpretation because it is "clear and unambiguous" is in reality evidence that the court has already considered and construed the act. It may also signify that the court is unwilling to consider evidence bearing on the question how the statute should be construed, and is instead declaring its effect on the basis of the judge's own uninstructed and unrationalized impression of its meaning. [Emphasis added.]
157 Eskridge, supra, at pp. 38-41, demonstrates that the "plain meaning" method is unsound even in terms of its theoretical underpinnings:
The new textualist position is that statutory text is the most determinate basis for statutory interpretation. That proposition, important to their theory, is questionable. . . .
The simplest version of textualism is enforcement of the "plain meaning" of the statutory provision: that is, given the ordinary meanings of words and accepted precepts of grammar and syntax, what does the provision signify to the reasonable person? An initial problem with simple plain meaning is that, for any statute of consequence, the legislative drafting process ensures textual ambiguities, which only multiply over time.
. . .
An additional problem with a simple textualist theory is that the meaning of text is decisively influenced by context.
This is my third problem with a simple, naive textualism: the interpreter's own context, including her situatedness in a certain generation and a certain status in our society, influences the way she reads simple texts.
A simple plain meaning approach to statutory interpretation seems unlikely to yield the determinacy needed for a foundational theory of statutory interpretation. [Emphasis added.]
158 In light of the evolution of our law following the passage of the charters and given the growing recognition that there are many different perspectives -- the aboriginal perspective, for example -- I believe that the era of concealed underlying premises is now over. In my view, those premises must be brought to the surface in order to promote consistency in our law and the integrity of our judicial system.
159 This is the approach I advocated, on behalf of the majority of the Court, in Hills v. Canada (Attorney General), 1988 67 (SCC), [1988] 1 S.C.R. 513, in which the issue involved the interpretation of the term "financing". In that case, although I did not go into all the methodological details explicitly, I used the "informed interpretation" method proposed by Bennion as a normative method for English common law (F. A. R. Bennion, Statutory Interpretation: Codified, with a critical Commentary (1984), at pp. 261-63 and 557; the formulation of that method was reproduced in Bennion, Statutory Interpretation: A Code (2nd ed. 1992), at pp. 427-29):
(1) It is a rule of law (in this Code called the informed interpretation rule) that the interpreter is to infer that the legislator, when settling the wording of an enactment, intended it to be given a fully informed, rather than a purely literal, interpretation (though the two usually produce the same result). (2) Accordingly, the court does not decide whether or not any real doubt exists as to the meaning of an enactment (and if so how to resolve it) until the court has first discerned and considered, in the light of the guides to legislative intention, the context of the enactment, including all such matters as may illumine the text and make clear the meaning intended by the legislator in the factual situation of the instant case.
The informed interpretation rule is a necessary one. If the drafter had to frame the enactment in terms suitable for a reader ignorant of past and contemporary facts and of legal principles (and in particular the principles of statutory interpretation), he or she would need to use far more words than is practicable in order to convey the meaning intended. . . .
The informed interpretation rule is to be applied no matter how plain the statutory words may seem at first glance. Indeed the plainer they seem, the more the reader needs to be on guard. A first glance at an enactment is not a fully-informed glance. Without exception, statutory words require careful assessment of themselves and their context if they are to be construed correctly.
One danger of the first glance approach lies in what is sometimes called impression. When the human mind comes into contact with a verbal proposition, an impression of meaning is immediately formed. It may be difficult to dislodge.
For the purpose of applying the informed interpretation rule, the context of an enactment comprises, in addition to the other provisions of the Act containing it, the legislative history of that Act, the provisions of other Acts in pari materia, and all facts constituting or concerning the subject-matter of the Act. [Underlining added; italics in original.]
160 What Bennion calls the "informed interpretation" approach is called the "modern interpretation rule" by Sullivan and "pragmatic dynamism" by Eskridge. All these approaches reject the former "plain meaning" approach. In view of the many terms now being used to refer to these approaches, I will here use the term "modern approach" to designate a synthesis of the contextual approaches that reject the "plain meaning" approach. According to this "modern approach", consideration must be given at the outset not only to the words themselves but also, inter alia, to the context, the statute's other provisions, provisions of other statutes in pari materia and the legislative history in order to correctly identify the legislature's objective. It is only after reading the provisions with all these elements in mind that a definition will be decided on. This "modern" interpretation method has the advantage of bringing out the underlying premises and thus preventing them from going unnoticed, as they would with the "plain meaning" method.
161 Since Hills, supra, I have continually stressed the importance of using the "modern" interpretation method rather than the former "plain meaning" method:
But, as I said above, a strict textual interpretation is not warranted here. [Canada (Attorney General) v. Mossop, 1993 164 (SCC), [1993] 1 S.C.R. 554, at p. 618.]
The Code, and in particular s. 118(a), should be interpreted in light of all the rules of statutory interpretation, among which the context plays an important part. The pragmatic and functional approach referred to above is the very opposite of a textual and formalistic approach. The analysis of s. 118(a) by my colleague Gonthier J. begins and is primarily concerned with a literal and grammatical interpretation. I definitely cannot agree with such an interpretation, which, in my view, is not appropriate. . . . [Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 31 (SCC), [1993] 3 S.C.R. 724, at p. 757.]
"Plain meaning" must not be used as an end in itself, particularly where it inevitably leads to absurd results which must be inconsistent with what Parliament would have intended. The thoughts of Justice Shamgar, President of the Supreme Court of Israel (as reproduced in Selected Judgments of the Supreme Court of Israel, vol. VIII (1992), at p. 263) strike me as particularly insightful:
. . . language does not govern the purpose, rather it serves it. The law is an instrument for realizing legal policy, and therefore interpretation needs to aim toward emancipating the wording from its semantic bonds, were these to distance it from the legislative purpose which the words are intended to realize.
If ever a case existed for rejecting a tightly tailored "plain meaning" approach in the face of consequences that are both absurd and contrary to the spirit and purpose of the law, it is raised in the present appeal. Of course, it is not for a court to second-guess the wisdom of the legislature since, subject to constitutional constraints, the legislature is entitled to legislate irrationally if it so chooses. Nonetheless, this Court should not adopt an interpretation . . . that would lead to absurd consequences when the mischief intended to be addressed is so poignantly clear. . . . [R. v. St. Pierre, 1995 135 (SCC), [1995] 1 S.C.R. 791, at paras. 84 and 91.]
162 The "modern" interpretation method was recognized by Côté, supra, at p. 234:
In trying to ascertain legislative intent, the reader must begin with the text chosen by the author as a vehicle for his thoughts. But should he stop there? According to Lord Denning,
Beyond doubt the task of the lawyer -- and of the judge -- is to find out the intention of Parliament. In doing this, you must, of course, start with the words used in the statute: but not end with them -- as some people seem to think.
Two reasons in particular militate in favour of going beyond the enactment. First, as we have seen, the goal of interpretation is more than simply discovering the historic thought of the author of the enactment: it has other goals, and consequently requires a number of factors to be taken into account, such as the consequences of interpretation, which have nothing to do with the text itself. Second, even if we consider that interpretation's sole purpose is to reveal the thought of the legislator, two principal reasons dictate going beyond the literal method in order to reveal such thought. Firstly, because of what has often been called the "open texture" of language, the literal approach is often not sufficient to dispel all doubts about an enactment's application. Secondly, the literal approach confines the courts to the explicit component of Parliament's message: the implicit component, which is derived from the text of the statute, must also be considered in the quest for legislative intent. [Emphasis added.]
163 The "modern" interpretation method has also been recognized in other common law countries: L. M. du Plessis, The Interpretation of Statutes (1986), at pp. 55 and 57:
However, all these [various successive stages of interpretation] together with the rules and presumptions applicable to them are always at least implicitly relevant in the sense that they must be borne in mind even if their applicability to the interpretation of a specific provision of an enactment is quite self-evident, and even if the "correct" answers to the questions of understanding they raise, can be arrived at intuitively.29
The presumptions are to serve as basic guidelines throughout the process of interpretation. Because due cognisance of the operation of the presumptions is not necessarily a clearly discernible first stage in the process of interpretation, since the presumptions obtain throughout all the stages of interpretation, the interpreter should be conscious of their existence, contents and operation right from the outset. This awareness of the presumptions should underlie his step by step interpretation of the enactment, carrying him through the various stages involved, and guiding him in the "right direction".
During this first stage of interpretation recourse may as a rule be had to dictionaries to ascertain the "ordinary meaning" of words or expressions. . . . An interpreter may, as a matter of fact, by no means remain with the result obtained by applying this rule even though "the language of the enactment is (ostensibly) clear". . . . The real meaning of an enactment may in fact remain hidden to an interpreter who adheres merely to "clear language" or who qualifies this language -- if it happens not to be so clear -- without due cognisance of all the other co-equal structural elements which constitute the overall context of meaning within which the enactment prevails. [Underlining added; italics in original.]
29 "Purely" or unbridled intuitive interpretation is of course at its best a risky business, and an interpreter would do best rather to obey the norms applicable to the various stages of interpretation as meticulously as possible. . . .
164 Finally, the "modern" interpretation method was reformulated in Canada by Professor R. Sullivan: Driedger on the Construction of Statutes (3rd ed. 1994), at p. 131:
There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just. [Emphasis added.]
165 However, since Hills this Court has wavered between the former "plain meaning" method and the "modern" interpretation method. For example, in R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686, at para. 21, Lamer C.J., speaking for the majority, used the former method, quoting the second edition of Driedger, supra, at p. 87, with approval:
In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense.
166 However, in R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3, Lamer C.J. came around to an interpretation based on the "modern" method, that is, an interpretation that rejected the "plain meaning" of the term "unlawful act" under s. 222(5)(a) of the Criminal Code. That interpretation is part of a line of decisions that originated with R. v. Larkin (1942), 29 Cr. App. R. 18: see R. v. DeSousa, 1992 80 (SCC), [1992] 2 S.C.R. 944, at pp. 958-59. Although in Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 S.C.R. 1031, at para. 14, Lamer C.J. stated that his support for the "modern" method was based on the presumption of constitutionality, that presumption is not actually the basis for the line of decisions in question. Moreover, in Ontario v. Canadian Pacific Ltd., Gonthier J., writing for the majority, used the "modern" contextual interpretation method.
167 This Court subsequently used the "modern" interpretation method again: in R. v. Lewis, 1996 243 (SCC), [1996] 1 S.C.R. 921, at para. 68, that method, as formulated by Professor Sullivan, was cited with approval by my colleague Iacobucci J.:
In order to arrive at the correct interpretation of statutory provisions, the words of the text must be read in context: see Driedger on the Construction of Statutes [3rd ed. 1994], at p. 193, and Côté, supra, at p. 257.
168 The "modern" method was also used by this Court in McIntosh, supra, at paras. 58-59, where my colleague McLachlin J. stated the following in dissent:
But even if the words were plain, the task of interpretation cannot be avoided. As Driedger on the Construction of Statutes (3rd ed. 1994) puts it at p. 4, "no modern court would consider it appropriate to adopt that meaning, however "plain", without first going through the work of interpretation".
The point of departure for interpretation is not the "plain meaning" of the words, but the intention of the legislature. . . . To quote Driedger, supra, at p. 3: "The purpose of the legislation must be taken into account, even where the meaning appears to be clear, and so must the consequences". . . . The plain meaning of the words, if such exists, is a secondary interpretative principle aimed at discerning the intention of the legislator.
169 However, this Court now seems to have returned to the former "plain meaning" method in Verdun v. Toronto-Dominion Bank, 1996 186 (SCC), [1996] 3 S.C.R. 550, at paras. 21-22:
While the parties' use of these various interpretive techniques is adept, a full discussion of these techniques is unnecessary to the resolution of this appeal. This is so because the language and context of the provisions in question make their meaning clear.
To state the obvious, the first step in a question of statutory interpretation is always an examination of the language of the statute itself. As E. A. Driedger wrote in his text, Construction of Statutes (2nd ed. 1983), at p. 87:
In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something . . . to show that they were used in a special sense different from their ordinary grammatical sense.
170 The fact that this Court is wavering at random between the former "plain meaning" method and the "modern" contemporary method introduces uncertainty into the law as far as this methodological point is concerned. What method should jurists use? As things stand at the moment, the answer is at best obscure. If the courts randomly choose one of the two interpretation methods depending on the desired result, then the activity of legal interpretation is reduced to an arbitrary exercise whose result is unpredictable. In so far as such an undesirable situation prevails, the comment on methodology made by Philp J.A., writing for a unanimous panel of the Manitoba Court of Appeal in Judges of the Provincial Court (Man.) v. Manitoba(1995), 1995 6257 (MB CA), 102 Man. R. (2d) 51, at p. 69, is appropriate:
The . . . argument is a Humpty-Dumpty-like exercise in making words mean what they want them to mean ("When I use a word", Humpty-Dumpty said, in a rather scornful tone, "it means just what I choose it to mean -- neither more nor less." Lewis Carroll, Through the Looking-Glass, Chapter 6). [Emphasis added.]
171 With respect to this idea of a Humpty-Dumpty-like interpretation exercise, see also generally: Roynat Inc. v. Ja-Sha Trucking & Leasing Ltd.(1992), 1992 2767 (MB CA), 89 D.L.R. (4th) 405 (Man. C.A.), at p. 408; Bodnar v. Real Estate Council of British Columbia(1994), 1994 1609 (BC CA), 121 D.L.R. (4th) 27 (B.C.C.A.), at p. 37. A Humpty-Dumpty-like interpretation exercise is actually nothing more than an interpretation based on random or vague rules or solely on intuition or unrationalized impressions, or one that fails to consider the underlying premises of legal reasoning. It goes without saying that the courts must avoid this type of interpretation exercise.
172 In light of the dynamic development of our law, the plurality of perspectives on legal analysis, the methodological problems presented by the "plain meaning" and the growing international recognition of all these factors, I believe that it is time to abandon the former "plain meaning" method in Canada and, from now on, to use the "modern" method as the basic approach to legal interpretation. That is what I now intend to do in the case at bar.
173 However, before beginning that analysis, it is important to consider two methodological caveats. First, the "modern" interpretation method must not be taken further than it can go. It seems to me that the "pragmatic dynamism" approach suggested by Eskridge could lead to such excess if carried too far. Eskridge has stated the following, supra, at p. 50:
Aristotle urged that application of general statutes to unanticipated cases requires the interpreter "to correct the omission -- to say what the legislator would have said had he been present, and would have put into law if he had known."
An Aristotelian approach to statutory interpretation is suggested by the American pragmatic tradition. Pragmatism argues that there is no "foundationalist" (single overriding) approach to legal issues. Instead, the problem solver should consider the matter from different angles, applying practical experience and factual context before arriving at a solution. Practical experience in both Europe and the United States suggests that when statutory interpreters apply a statute to specific situations, the interpreter asks "not only what the statute means abstractly, or even on the basis of legislative history, but also what it ought to mean in terms of the needs and goals of our present day society".
. . . [My pragmatist-inspired] argument is based on an Aristotelian theory of application and changed circumstances: a statute is relatively abstract until it is applied to a specific situation. Especially over time, the circumstances will not be ones that the statute or its drafters contemplated, and any application of the statute will be dynamic in a weak sense, going beyond the drafters' expectations. Sometimes the circumstances will be materially different from those contemplated by the statutory drafters, and in that event any application of the statute will be dynamic in a strong sense, going against the drafters' expectations, which have been negated because important assumptions have been undone. [Underlining added; italics in original.]
174 This "pragmatic dynamism" approach has recently been commented on as follows in Canadian academic literature (P. Michell, "Just Do It! Eskridge's Critical Pragmatic Theory of Statutory Interpretation" (1996), 41 McGill L.J. 713, at p. 731):
At the core of this approach is a healthy scepticism about all theoretical approaches and a measure of uncertainty as to whether the answer chosen is the correct one. At the same time, however, critical pragmatism is concerned to get the job done, not to equivocate or temporize. Seen from this perspective, the essential problem of statutory interpretation is to apply a general, abstract statutory provision to a concrete factual situation. Circumstances often arise which the enacting legislators did not or could not have contemplated. Interpreters, on this account, must do what works best, by reference to the "web of beliefs" that surround a statute. [Emphasis added.]
175 In my view, Eskridge's "pragmatic dynamism" provides the judiciary with a justification for manufacturing interpretations that are diametrically opposed to the clear purpose of a statute. Eskridge based this approach on an opinion expressed by Aristotle in his Nichomachean Ethics. Yet that opinion tends to diverge from the rule of law and état de droit concepts as they are accepted today in our democratic societies. To avoid basing the development of our judicial system on unsound theoretical foundations, we must therefore be extremely cautious about sociopolitical opinions expressed by the classical authors. For an example of the many complications created by the use of the classical authors' sociopolitical opinions in the law, see generally M. C. Nussbaum, "Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual Controversies" (1994), 80 Va. L. Rev. 1515.
176 On the other hand, when it comes to pure methodology -- such as Aristotelian-Thomist formal logic and the Socratic method -- having recourse to the classical authors is obviously fully justified, inter alia in developing methods of legal interpretation. As correctly noted by Professor Nussbaum, the discipline of law could benefit from greater methodological rigor ("The Use and Abuse of Philosophy in Legal Education" (1993), 45 Stan. L. Rev. 1627, at pp. 1637-38):
Philosophy does not just conduct inquiries into specific topics; it also turns round and examines itself, asking what belief and knowledge are, what rationality is, what interpreting a text is, what methods are and are not conducive to understanding. Once again, this explicitness and rigor seems to me to have a great deal to offer to the law, which inevitably talks about evidence and knowledge, about interpretation and objectivity, and about the nature of rationality. The point is not that philosophers have some secret key to these difficult questions, but that they spend their whole lives working on them, whereas lawyers rarely spend much time on them at all. So there is at least some chance that philosophers' more systematic and detailed inquiries will offer something to the lawyer.
Law has become methodologically philosophical in some areas, in particular, in the debates about interpretation in constitutional law. But this self-scrutiny could be extended much further and could be pursued more rigorously, with benefit to all. [Emphasis added.]
177 The second methodological caveat is as follows. It is clear that the "plain meaning" method, with its methodological estoppel that prevents the initiation of legal reasoning, can be used in situations in which it is justified and does not have undesirable side effects. I am thinking, for example, of the area of tax law, in which our case law clearly establishes that the basic approach is that involving the "plain meaning" rule: Alberta (Treasury Branches) v. M.N.R., 1996 244 (SCC), [1996] 1 S.C.R. 963, at para. 14 (per Cory J.):
The appropriate principles to be considered in interpreting taxation legislation were clearly set out in Friesen v. Canada, 1995 62 (SCC), [1995] 3 S.C.R. 103. . . .
In interpreting sections of the Income Tax Act, the correct approach, as set out by Estey J. in Stubart Investments Ltd. v. The Queen, 1984 20 (SCC), [1984] 1 S.C.R. 536, is to apply the plain meaning rule.
178 What are the underlying reasons for such an approach in taxation? In Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, 1994 58 (SCC), [1994] 3 S.C.R. 3, my colleague Gonthier J. set out the social and economic policy reasons in an analysis returned to by my colleague La Forest J. in Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254, at para. 56:
In . . . Notre-Dame de Bon-Secours . . . my colleague Gonthier J. clarified the proper rules governing the interpretation of tax legislation. After explaining the underlying principles of the traditional rule providing for a strict construction of fiscal statutes, he analyzed the evolution that had occurred on the issue during the past decade. As he explained . . . this evolution was the logical consequence of the recognition of the social and economic purposes of such legislation. . . . Gonthier J. held, at p. 17:
[T]here is no longer any doubt that the interpretation of tax legislation should be subject to the ordinary rules of construction. . . . "[T]he words of an Act are to be read in their entire context and in their . . . ordinary sense. . . ." [Driedger, Construction of Statutes (2nd ed. 1983), at p. 87.] [Emphasis added.]
179 From the standpoint of the methodology of legal interpretation, it must be borne in mind that tax law is a technical field that has a language of its own, since it is, along with accounting and management, part of what may generally be called "the business world". Professor A. Belkaoui, Working Paper 76-7, Linguistic Relativism in Accounting (1976), at pp. 1, 9 and 11, has demonstrated this very clearly:
Accounting is the language of business. It represents phenomena in the business world as language represents phenomena in the real world. Both linguistics and accounting have a great number of similarities.
"(Accounting) is a language with a special vocabulary aimed at conveying the financial story of organizations. To understand corporate annual reports, a reader must learn the fundamentals of the language" (Horngren, 1974, p. 70).
"As is the case with language, accounting has many dialects. There are differences in terminology and practice among industries and among companies within industries. . . ." (Anthony and Rose, 1975, p. 12).
Symbolic representations do exist in accounting. For example, Mcdonald (1972, p. 6) identified numeral[s] and words, and, debit and credit, as symbols respectively accepted and unique to the accounting discipline. Hence, the terms used to portray accounting postulates and principles, such as materiality, going concern, conservatism, etc. . . . have a meaning unique to the accounting field. [Emphasis added.]
180 It is evident from this analysis that terms generally used in the business world, including taxation terms, have a meaning unique to the business world. Since the business world occupies such an important place and has such profound ramifications in our society, there are a great many terms of business language that have already been precisely defined by those working in the field. In fact, taxation terms often have definitions that have been clearly established through empirical means, that are generally recognized and accepted or that have been standardized by various bodies: see, for example, the dozens of specialized dictionaries and glossaries in taxation, accounting and management. See also, inter alia, the CICA Handbook and The Accountant's Manual of the Canadian Institute of Chartered Accountants. See also, from the Corporation professionnelle des administrateurs agréés du Québec, Guide de la saine gestion des entreprises et des organisations (Principes d'administration et de gestion généralement reconnus) (2nd ed. 1992), c. 1 "références lexicologiques", section 1.1-1, the purpose of which is [TRANSLATION] "to ensure uniformity in how concepts are understood and to limit how they are interpreted".
181 Thus, the "plain meaning" used by this Court in the taxation field is actually the "plain meaning as already defined by the business world". But there is more. Not only have the terms already been defined by the business community, but terminological and lexicographic research is being done in that field and published in specialized literature. See, for example, Professor C. Nobes' nine-language comparative analysis ("The True and Fair View Requirement: Impact on and of the Fourth Directive" (1993), 24 Accounting and Business Research 35) of the expression "a true and fair view", which financial statements are required to present, in the context of the law applicable in the 12 European Economic Community countries.
182 It is thus the business world itself that develops its own contextualized definitions based on what is here being called the "modern" method. This Court then uses those definitions as what it views as the "plain meaning" generally accepted in the business world. The "plain meaning" method in taxation relies on methodological estoppel, which prevents us from initiating any reasoning on legal interpretation because those working in the field have already carried out the relevant analyses in situations in which we consider that there is a "plain meaning". In situations in which there is no "plain meaning" or there is ambiguity, this Court must then define the term in question by engaging in legal interpretation.
183 In summary, the "plain meaning" rule is justified in taxation because of the imperatives of stability and predictability of the law; moreover, the use of the "plain meaning" in taxation does not have any dysfunctional side effects. Accordingly, in such circumstances it is clear that the basic approach to legal interpretation in the field of tax law should be that involving the "plain meaning" rule. Since Hills, supra, I have constantly supported this approach, adopting the "plain meaning" rule in appropriate circumstances.
184 In conclusion, it is therefore the "modern" methodological approach that will apply in interpreting the Charter, a question to which I will now turn.
B. Sections 23 and 56(1) of the Charter: Legal Interpretation
185Sections 23 and 56(1) of the Charter read as follows:
23.Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.
The tribunal may decide to sit in camera, however, in the interests of morality or public order.
56.(1) In sections 9, 23, 30, 31, 34 and 38, in Chapter III of Part II and in Part IV, the word "tribunal" includes a coroner, a fire investigation commissioner, an inquiry commission, and any person or agency exercising quasi-judicial functions.
186 What must be interpreted here is the expression "person or agency exercising quasi-judicial functions" (in s. 56(1)), read in conjunction with the term "tribunal" (in s. 23).
(1) The So-Called "Plain Meaning"
187 The idea generally accepted thus far by academic commentators is that s. 23 of the Charter applies to "every quasi-judicial tribunal", that is, every administrative agency that performs quasi-judicial acts. According to Brun and Tremblay, supra, at pp. 936-37:
[TRANSLATION] Section 23 is applicable to all judicial or quasi-judicial bodies created by the province. . . . A body does not necessarily become a tribunal within the meaning of s. 23 because it happens to exercise judicial functions while exercising its primary administrative functions. However, even if s. 23 does not apply to such a body as an institution, it must comply with s. 23 when it exercises its ancillary judicial functions. . . . This means, in short, that s. 23 applies to all Quebec tribunals and to the Quebec government when it makes judicial decisions.
188 This interpretation of the applicability of s. 23 is very broad. Some authors have even mentioned the possibility of s. 23 applying to a minister (J. F. Keable, "Les tribunaux administratifs et organismes de régulation et les exigences de la Charte en matière d'indépendance et d'impartialité (art. 23, 56.1 de la Charte québécoise)", in Application des Chartes des droits et libertés en matière civile, (1988), 251, at p. 261: [TRANSLATION] Professor Gilles Pépin has already correctly noted that s. 23 could apply to a minister. . . .
189 The idea accepted by academic commentators that in this context the term "quasi-judicial tribunal" means "every administrative tribunal that exercises a quasi-judicial function" does not seem to be based on a formal interpretative analysis. For example, although Keable has expressed the view that s. 23 applies [TRANSLATION] "in both civil and penal matters", this suggestion does not seem to be supported by an analysis of the doctrine or court decisions (at p. 261):
[TRANSLATION] We feel that the decisions rendered under s. 11(d) of the Canadian Charter of Rights and Freedoms should be relevant in interpreting s. 23 of the Charter. Section 23 also refers to the idea of an independent tribunal, but it must be applied in both civil and penal matters and, because of s. 56(1), it is applicable to administrative tribunals as well the courts. [Emphasis added.]
190 This Court has not yet undertaken a formal interpretative analysis of these terms. The Superior Court of Quebec addressed the issue in Coffin v. Bolduc, [1988] R.J.Q. 1307. In that case, the Court had to decide whether a professional disciplinary committee was independent and impartial. Rioux J. compared the scope of s. 11(d) of the Canadian Charter of Rights and Freedoms with that of s. 23 of the Quebec Charter, at p. 1313:
[TRANSLATION] The terminology used in s. 23 of the Quebec charter and s. 11(d) of the federal charter may, prima facie, suggest that they are similar. However, the context shows that the two provisions have totally different purposes.
The federal provision seeks, in the field of criminal or penal law, to eliminate courts. . . .
The provincial provision, which is applicable to all judicial and quasi-judicial bodies that Quebec has created or will create. . . .
In other words, it may be said that s. 11 of the Canadian Charter of Rights and Freedoms has codified and set out the principles developed by public law to guarantee the independence of judges sitting in criminal or penal cases. . . .
The wording of s. 23 of the provincial charter is broader in scope, however, since it is applicable not only to the courts as such, whether civil or criminal, but also to administrative tribunals and persons and agencies with quasi-judicial powers. [Emphasis added.]
191 Rioux J. then quoted Gilles Pépin's statement that [TRANSLATION] "s. 23 [is] meant to apply to institutions, such as ministers, that clearly do not have some of the essential attributes of judicial independence". However, Rioux J.'s opinion on the scope of s. 23 does not seem to be based on a formal interpretative analysis. Rioux J. and the commentators seem to have defined the term "quasi-judicial" in the Charter by using the former "plain meaning" method, that is, by failing to interpret the statute in an informed manner using the "modern" legal interpretation approach. The definition appears instead to have been adopted on the basis of intuition or unrationalized impressions.
192 In my view, this is a methodological error. Statutory interpretation cannot be limited to the "plain meaning" method; statutes must be read using the "modern" interpretation method: every legislative provision should be read in context, having regard to the purpose of the statute, its history, the consequences of proposed interpretations, the presumptions and rules of interpretation and the admissible external aids.
193 In other words, to someone not using the "modern" interpretation method, the term "quasi-judicial" seems prima facie clear: its "plain meaning" is obvious; it simply means "every quasi-judicial tribunal". For someone applying the former "plain meaning" rule, the methodological estoppel is thus trying to prevent the initiating of the informed reasoning of legal interpretation. The person stops before beginning to reason and looks no further. As I have noted, the era in which this method prevailed is now over: we must henceforth interpret legislative provisions using the "modern" approach.
194 A provision must be read in context, while bearing in mind all the relevant interpretation factors. That is what I now intend to do, having regard to (1) the immediate context, that is, the provision itself; (2) the broader context, that is, the chapter in which the provision is found; and (3) the general context, that is, the statute as a whole.
(2) Immediate Context: Noscitur A Sociis
195 This is a well-known rule of interpretation: a term or expression cannot be interpreted without taking surrounding terms into account. The meaning of a term is revealed by its association with other terms: it is known by its associates (noscitur a sociis). This general principle is most often applied in interpreting terms that are part of a list. In the case at bar, the provision does contain such a list of associated terms:
56.(1) . . . the word "tribunal" includes [1] a coroner, [2] a fire investigation commissioner, [3] an inquiry commission, and [4] any person or agency exercising quasi-judicial functions.
196 Four terms are associated here: coroner, fire investigation commissioner, inquiry commission and the "quasi-judicial" group. To begin with, what do these four terms have in common? All four may apply to "matters of penal significance"; this idea is common to the four terms. Next, I note that two of the four terms, the inquiry commission and the "quasi-judicial" group, have a broader denotation: they may apply to the "non-penal" sphere as well as to "matters of penal significance". According to the noscitur a sociis interpretation principle, terms in a list may have a broader or narrower denotation. In the case at bar, the denotation of the list should be limited to the concept common to all the terms: that of "matters of penal significance".
197 If it were agreed that two of the four terms -- and the "quasi-judicial" group in particular -- could apply to the "non-penal" sphere, that would disregard the denotation of the other two terms and thus fail to take account of the noscitur a sociis rule. The meanings of these four associated terms would then be inconsistent in light of the noscitur a sociis rule and therefore logically, semantically and grammatically inconsistent. The interpretation would be based on unrationalized impressions. In my view, the four terms must, on the contrary, be defined so that they have the same denotation: that of "matters of penal significance". This denotative definition is coherent and complies with the noscitur a sociis rule.
198 I believe it would be helpful at this point to make two methodological clarifications. First, a distinction must be drawn between a denotative definition (denotation or extension) and a connotative definition (connotation, intension or comprehension). The connotative definition of a quasi-judicial agency was stated in Minister of National Revenue v. Coopers & Lybrand, 1978 13 (SCC), [1979] 1 S.C.R. 495, at pp. 504-5; there is nothing in this appeal that conflicts with that definition; in fact, the connotative definition of the term "quasi-judicial agency" set out in Coopers & Lybrand underlies this appeal. However, the denotative definition of the same term can vary in each individual case, depending on the wording of the legislative provisions in which the term is found. That is the situation in this appeal.
199 In the circumstances of the instant case, the denotation of the term "quasi-judicial" is limited by the surrounding terms, in accordance with the noscitur a sociis rule. Of course, it is easy to see that, in other situations in which different wordings are used, the denotation of the same term could be entirely different even though the connotative definition never changes (with respect to connotation and denotation, see, inter alia, Driedger on the Construction of Statutes, supra, at pp. 142 et seq.; see also generally I. Copi and C. Cohen, Introduction to Logic (8th ed. 1990), at pp. 142-43 and 480 et seq.).
200 Second, a general definition of the "matters of penal significance" category involved in this appeal should be provided. I believe that this category includes at least purely penal concepts, that is, fines and imprisonment. Without defining the scope of those concepts conclusively here, I think that this category probably also includes all matters of penal significance, including certain aspects of professional disciplinary law, certain immigration decisions and concepts related to search and seizure. It is not necessary to define the scope of this "matters of penal significance" category conclusively to resolve this appeal. This category will be clarified to a greater extent by future judgments. What is clear in the case at bar is that the Régie's actions in issuing, renewing and cancelling liquor permits do not fall within the "matters of penal significance" category. They clearly fall within the "non-penal" sphere.
(3) Broader Context: Provisions of Chapter III of Part I of the Charter
201 Having made these methodological clarifications, I will now return to an informed interpretation of the provisions under consideration in their broader context. The following is a summary of one of the principles of contextual interpretation drawn from Driedger on the Construction of Statutes, supra, at pp. 247-48:
In adopting a contextual approach, the courts focus on any provision or series of provisions that in their opinion is capable of shedding light on the interpretive problem at hand. Looking to other provisions is useful because courts make certain assumptions about the way legislation is drafted. . . .
In some cases the courts focus on a particular provision or series of provisions found elsewhere in the Act. . . . The court's reasoning here is based on the presumption of orderly and economical arrangement. It would be contrary to the principles of sound drafting for a drafter to place a provision dealing with both commercial and non-commercial activities in the midst of a series of provisions dealing with commercial activities only. [Emphasis added.]
202 The rule of interpretation is as follows: if a provision that deals with both field A and field non-A is placed in a series of provisions dealing only with field A, this is contrary to the principles of sound legislative drafting. This rule of interpretation applies directly to the situation in the case at bar.
203 Section 23 is part of Chapter III of Part I of the Charter, which sets out "Judicial Rights", including all guarantees of a penal or criminal nature: imprisonment, search and seizure, arrest, habeas corpus, presumption of innocence, etc. An interpretation of the term "quasi-judicial" that covered both "matters of penal significance" and "non-penal" matters would, according to the above rule, be contrary to the principles of sound drafting, since there is no reference to the "non-penal" sphere in Chapter III of Part I of the Charter. Such an interpretation, contrary to the principles of sound legislative drafting, would be strained.
204 On the other hand, if the term "quasi-judicial" is defined so that its denotation is limited to the "matters of penal significance" category, then the interpretation is perfectly consistent with the principles of sound legislative drafting: it is no longer a strained interpretation and the definition becomes compatible with the part of the statute in which the term is found.
205 An informed interpretation of the provisions in either their immediate or broader context leads to the same result as far as the definition of the term "quasi-judicial" is concerned. That brings me to an interpretation of the provisions in their general context.
(4) Context of the Statute as a Whole
206 The principles applicable to the interpretation of statutes as a whole have been summarized as follows:
[T]he elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he had read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous. [Attorney-General v. Prince Ernest Augustus of Hanover, [1957] A.C. 436 (H.L.), at p. 463.]
[T]he office of a good expositor of an Act of Parliament is to make construction on all the parts together, and not of one part only by itself ; nemo enim aliquam partem recte intelligere possit, antequam totum iterum atque iterum perlegerit . . . and so before this time have other statutes been expounded by the ancient Judges and sages of the law. [Lincoln College's Case (1595), 3 Co. Rep. 58b, 76 E.R. 764, at p. 767.] [Emphasis added.]
207 The nemo enim aliquam partem recte intelligere possit, antequam totum iterum atque iterum perlegerit rule literally means: no one can understand a part before reading and rereading the whole in full. This rule has been part of the common law for over 400 years and has been codified in Quebec, as far as contracts are concerned, by art. 1427 of the Civil Code of Québec, S.Q. 1991, c. 64 (formerly art. 1018 of the Civil Code of Lower Canada). It is thus necessary to read and reread the entire statute in full before deciding how the term in question should be defined. If necessary in order to properly understand the scheme of the statute, the regulations made thereunder must also be read and reread. The justification behind the nemo intelligere possit antequam iterum perlegerit rule is as follows. It must be assumed that the statute is coherent. The principle of internal statutory coherence has been recognized by the common law since the 17th century: Chamberlain's Case (1611), Lane 117, 145 E.R. 346, at p. 347 (Tanfield J.): . . . the meaning of an act of parliament ought to be expounded by an examination of the intention of the makers thereof, collected out of all the causes thes therein, so that there be no repugnancy, but a concordancy in all the parts thereof. . . . [Emphasis added.]
208 I note that the modern expression of the internal coherence principle, which has been part of our law since it was reformulated by Lord Atkinson in City of Victoria v. Bishop of Vancouver Island, 1921 568 (UK JCPC), [1921] 2 A.C. 384 (P.C.), at p. 388, was adopted again by this Court in The King v. Assessors of the Town of Sunny Brae, 1952 34 (SCC), [1952] 2 S.C.R. 76, at p. 97:
In my opinion, the construction of a statute which produces such anomalies is contrary to well settled canons of construction.
A statute is to be construed, if at all possible, "so that there may be no repugnancy or inconsistency between its portions or members". . . . [Emphasis added.]
209 According to Driedger on the Construction of Statutes, supra, at p. 176, the presumption of internal statutory coherence is virtually irrebuttable:
It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning whole. The parts are presumed to fit together logically to form a rational, internally consistent framework.
The presumption of coherence is virtually irrebuttable. [Emphasis added.]
210 In the case at bar, an incoherence -- a repugnancy -- appears in the scheme of the Charter itself if the term "quasi-judicial" is defined incorrectly. The incoherence disappears if the term "quasi-judicial" is defined so that its denotation is limited to the "matters of penal significance" category. As I will endeavour to show, that incoherence, which can be seen simply from an informed reading of the Charter itself based on the "modern" approach, is clear.
211Section 57 of the Charter establishes the Commission des droits de la personne. The Commission's responsibilities include making non-adversary investigations (s. 71, para. 2(1)). It has the discretion to refuse or cease to act in favour of a victim (s. 77, para. 2). When it exercises such a discretion to refuse to act, it is making a quasi-judicial decision: see, for example, Lisenko v. Société zoologique de Granby Inc., T.D.P.Q., No. 1994 2828 (QC TDP), 460-53-000001-938, March 8, 1994; see also Cutler v. Québec (Commission des droits de la personne)(1986), 1986 6540 (QC CS), 7 C.H.R.R. D/3610 (Que. Sup. Ct.).
212 There are two possible interpretations of the combination of ss. 23 and 56(1) of the Charter: either they apply to "every agency exercising quasi-judicial functions" or they apply only to "agencies exercising quasi-judicial functions involving `matters of penal significance'". The first definition results from an interpretation based on the former "plain meaning" method, while the second results from a "modern" contextual interpretation. I will begin with an analysis based on the first definition.
213 If s. 23 applies to "every agency exercising quasi-judicial functions" and the Commission exercises a quasi-judicial function when it exercises its discretion to refuse to act, then s. 23 applies to the Commission in respect of that decision. This means that the Commission must be impartial and independent when it exercises its discretion to refuse to act; it must comply with the nemo judex rule. However, it is not only this part of s. 23 that applies: it is the entire section. Section 23 also includes a right to a public hearing. The Commission must therefore exercise its discretion to refuse to act in a public hearing, inasmuch as s. 23 applies according to the first definition.
214 There is a second contradiction between this public hearing requirement and the Commission's operating procedures. The Regulation respecting the handling of complaints and the procedure applicable to the investigations of the Commission des droits de la personne,(1991) 123 G.O. II, 1097, complies with the audi alteram partem rule by providing that the parties can be heard through written submissions rather than at a public hearing. This requirement contrasts with what is provided for in the case of the Human Rights Tribunal. Section 51 of the Rules of practice of the Human Rights Tribunal, (1993) 125 G.O. II, 6031, specifically states that the Tribunal's hearings must be public. The legislature's intention is thus clear: the Tribunal must hold public hearings, while the Commission may proceed on the basis of written submissions. These two forms of hearings comply with the audi alteram partem rule while taking the impact of each agency into account.
215 However, the hearing of a case by the Commission is not public, since it is done through written proceedings. This means that the Regulation would contravene s. 23 by giving the Commission a discretion not to hold a public hearing. It follows that an individual who is before the Commission could theoretically bring an action under s. 52 of the Charter to invalidate that statute erga omnes. Thus, an individual who files a written complaint with the Commission could theoretically have the Charter itself struck down erga omnes. That was clearly not the legislature's intention. Did the legislature intend to allow for the possibility of written proceedings and yet also impose a duty to hold a public hearing? Of course not: this is an imaginary internal incoherence in the statute that results simply from an incorrect interpretation of the term "quasi-judicial" based on its so-called "plain meaning".
216 This internal contradiction in the scheme of the Charter disappears if "quasi-judicial" is defined so that its denotation is limited to "matters of penal significance". Do cases before the Commission des droits de la personne involve "matters of penal significance"? No. Section 23 is therefore not applicable; there is no duty to hold a public hearing. However, the Commission still has a duty to act fairly, which, as I have noted, includes the nemo judex and audi alteram partem rules. The latter can be complied with through either written proceedings or a hearing, which will not necessarily be public. All the common law remedies discussed above remain available to individuals before the Commission.
217 These internal contradictions in the scheme of the Charter are also found in other administrative schemes. The legality of the existence of a great many administrative entities could be challenged by relying strictly on the right to a public hearing. For example, in the case at bar, the enabling statute provides the Régie with a discretion as to whether to hold a hearing in certain specific cases: Act respecting liquor permits, R.S.Q., c. P-9.1, ss. 101 and 102. If s. 23 applies, that discretion violates the right to a public hearing. Moreover, it could be argued that in some cases, even if an agency provides an opportunity to be heard viva voce, such a hearing is not necessarily public within the meaning of s. 23.
218 It is not clear that the legislature intended to extend the right to a viva voce hearing and to have such a hearing held in public, accompanied by a right to bring an action to have the enabling statute invalidated erga omnes, to all Quebec administrative agencies. Extending those rights to such a degree would certainly have absurd consequences for the operation of Quebec's administrative system.
219 From a strictly legal point of view, it is clear that this appeal affects a large number of Quebec administrative agencies. Furthermore, from a practical point of view, I note that the concepts considered in this appeal seem to have given rise to a great deal of litigation; this was mentioned by LeBel J.A. in his reasons (1994), 1994 6017 (QC CA), 122 D.L.R. (4th) 553, at pp. 559-60.
[TRANSLATION] Because of this provision and the similarity in content of the two Acts and the role of the Régie, the parties acknowledged the continued practical importance of the proceeding commenced in the Superior Court in this case. In any event, there are many cases marking time in the Quebec courts on account of this dispute.
220 Regardless of whether there is an avalanche of similar litigation, it is clear that every individual must be entitled to have a decision reviewed if an apprehension of judicial bias exists. However, was it the legislature's purpose to authorize the bringing of an action to have the enabling statute declared invalid erga omnes in every case, and in respect of all the provisions of each such statute? This question is interesting if one considers that, in the instant case, the provisions creating the Régie were themselves the ones challenged; as noted by LeBel J.A.: [TRANSLATION] "The lower court judgment thus challenges the validity of the very existence of the Régie" (p. 559).
221 For this question to be answered in the affirmative, the legislature would have had to intend that the enabling statutes of a large number of administrative agencies could all be invalidated erga omnes at the same time and with relative ease. To use the words of LeBel J.A., that would mean that "the validity of the very existence" of a large number of administrative agencies would be "called into question". Ultimately, an attempt might be made to strike down the enabling statutes of a great many agencies that make decisions without holding public hearings. Such a result seems much more like a perverse, unforeseen effect arising from a faulty methodology of legal interpretation and definition than an effect truly intended by the legislature.
222 In sum, the incoherence in the scheme of the Charter is as follows: if the incorrect definition of "quasi-judicial" were accepted, the Commission would have to hold a public hearing for each decision that affects an individual's rights, including a decision to refuse or cease to act. The mere fact that the statute and Regulation provide for a discretion as to whether to hold a public hearing contravenes the duty under s. 23. This situation is directly contrary to the presumption of internal statutory coherence. Yet that presumption is virtually irrebuttable. Anyone who wished to support the incorrect interpretation of the term "quasi-judicial", an interpretation that is now accepted in academic writing, would have the burden of rebutting this presumption of internal coherence and the other rules of interpretation mentioned above.
(5) Legislative Evolution
223 The evolution of a provision over time can furnish useful information for interpreting it. As noted by Pigeon J. in Gravel v. City of St-Léonard, 1977 9 (SCC), [1978] 1 S.C.R. 660, at p. 667:
Legislative history may be used to interpret a statute because prior enactments may throw some light on the intention of the legislature in repealing, amending, replacing or adding to it.
224 This interpretation principle is based on the presumption that changes to legislation are intended to effect a substantive change in the law. In analysing changes in the terms used in statute law, the Ontario Court of Appeal has noted the importance of this presumption: "[t]he amendment must have had some purpose and significance" (Re Peralta and The Queen in right of Ontario (1985), 49 O.R. (2d) 705, at p. 716; affirmed by Peralta v. Ontario, 1988 28 (SCC), [1988] 2 S.C.R. 1045).
225 When the Charter was passed in 1975, s. 23 read as follows:
Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.
The tribunal may decide to sit in camera, however, in the interests of morality or public order.
It may also sit in camera in the interests of children, particularly in matters of divorce, separation from bed and board, marriage annulment or declaration or disavowal of paternity. [Emphasis added.]
226 The third paragraph of s. 23 was repealed in 1993 by the Act to amend the Code of Civil Procedure and the Charter of Human Rights and Freedoms, S.Q. 1993, c. 30, which had the effect of transferring that provision to art. 13 of the Code of Civil Procedure and changing its content. This third paragraph listed four situations in family cases in which there was an interest in holding in camera hearings because the case might affect a child. The general rule that hearings had to be public did not apply to that class of cases. The amendment had the legal effect of maintaining that class, notwithstanding the public hearing requirement set out in s. 23 of the Charter, while allowing media access.
227 Is this "family" class part of the "matters of penal significance" category or the "non-penal significance" category? This question does not have to be answered to decide this appeal; it will be answered if it ever comes before the courts. However, it is worthwhile to look at the two possible answers, since they both lead to the same conclusion in this case.
228 Without deciding this question here, I believe that the "family" class is indeed part of the "matters of penal significance" category. To begin with, I note that the hearings in question are held before the courts, not before administrative tribunals. Accordingly, as I will explain in greater detail below, those hearings automatically have "penal significance", inter alia because of the possibility of being found in contempt of court.
229 Even if the categorization is applied to this "family" class for analytical and explanatory purposes on the assumption that such cases would be heard by a quasi-judicial tribunal, the end result is the same. "Penal significance" should be determined by the decision's potential impact on the persons involved in the case. Is the decision's impact as significant as the impact of a penal sentence? It is in such cases that the parties are entitled to a higher level of procedural protection. The very nature of such cases, because of the human consequences they have, means that their impact is of the greatest significance for the persons involved. The "family" class thus seems, by its very nature, to be part of the hearings "of penal significance" category.
230 Aside from the possibility of being found in contempt of court, the "family" class may involve other sanctions of penal significance, such as seizure pursuant to a support order. Moreover, Chapter IV of Title V of the First Book of the Civil Code of Lower Canada, which concerned actions for annulling marriage, included the possibility of a $500 penalty being imposed on the officer who solemnized the marriage (art. 157 (repealed in 1980)). The "family" class thus seems to be part of the hearings "of penal significance" category because of the sentences that may be imposed in such cases.
231 Accordingly, if this "family" class is part of the "matters of penal significance" category, this is another clear indication that Chapter III of Part I and s. 23 of the Charter should be placed in that category.
232 Alternatively, is this "family" class part of the matters "of non-penal significance" category? A priori, I do not think so: matters "of penal significance" may exist in any area of the law, be it property and civil rights, public law, criminal law or some other area. However, assuming that this "family" class is part of the "non-penal significance" category, what would the consequences be?
233 The legislature would rightly have removed elements that did not belong in Chapter III of Part I of the Charter because they did not fit into a chapter that is essentially "of penal significance". The legislature would rightly have placed those elements where they do belong, that is, in a general part of the law: the Code of Civil Procedure, which includes elements from both the "penal significance" category and the "non-penal significance" category.
234 Thus, if this "family" class is part of the "non-penal significance" category, its removal from the Charter and transfer to the Code of Civil Procedure is another clear indication that Chapter III of Part I and s. 23 of the Charter should be placed in the "penal significance" category.
235 Accordingly, the legislative evolution of s. 23 leads to the same definition of the term "quasi-judicial" in s. 56(1): the definition whose denotation is limited to "quasi-judicial tribunals dealing with matters of penal significance".
(6)External Context
236 After finding that an informed interpretation of the immediate, broader and general contexts always leads to the same definition of the term "quasi-judicial", that is, one whose denotation is limited to the "matters of penal significance" category, I will now look at the external context that existed when the Charter was enacted and that remains substantially the same today.
237 The legislature is presumed to be competent and to have knowledge of all the legislation and case law in existence at the time a statute is enacted: The Queen v. Inhabitants of Watford (1846), 9 Q.B. 626, 115 E.R. 1413, at p. 1417 (per Lord Denman C.J.). This presumption was expressed as follows by Driedger on the Construction of Statutes, supra, at pp. 156-57:
The legislature is presumed to know all that is necessary to produce rational and effective legislation. This presumption is very far-reaching. It credits the legislature with the vast body of knowledge of which judicial notice may be taken as well as anything contained in briefs or reports tabled with legislation. The legislature is presumed to have a mastery of existing law, both common law and statute law, as well as the case law interpreting statutes. It is also presumed to have knowledge of practical affairs. . . .
Logically, the substance of what the legislature is presumed to know must be knowledge that was available to it at the time the legislation was enacted. [Emphasis added.]
238 The Charter was drafted in successive stages from 1968 to 1974; it was passed in 1975 and came into force in 1976. During that entire period, it must be presumed that the Quebec legislature had knowledge of all the relevant law. I now intend to briefly review that relevant law, which served as a source of inspiration for the legislature in completing the drafting of the Charter. The relevant provisions, reproduced in chronological order according to when they came into force, are as follows.
1948 - Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71, art. 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. [Emphasis added.]
1950 - European Convention on Human Rights, 213 U.N.T.S. 221, art. 6(1):
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. [Emphasis added.]
1960 - Canadian Bill of Rights, S.C. 1960, c. 44, s. 2(e) and (f):
. . . no law of Canada shall be construed or applied so as to
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; [Emphasis added.]
1966 - International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 14(1):
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. . . . [Emphasis added.]
1975 - Charter of Human Rights and Freedoms, S.Q. 1975, c. 6, s. 23:
Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.
239 The wording of s. 23 of the Charter therefore appears to be a sort of digest of the wording of the Universal Declaration of Human Rights. The legislature removed a number of terms from that wording, including "criminal"; a priori, it might be thought that this is an indication that the legislature intended the provision to apply to both "penal" and "civil" matters. However, it is necessary to look further and read all the provisions that existed when the Charter was enacted.
240 The other three provisions very clearly distinguish applicability in "civil" matters from applicability in "criminal" matters. This distinction is made explicitly in these provisions through the use of the "in . . . civil . . . or . . . criminal" structure in the European Convention of Human Rights and the "in . . . criminal . . . or . . . suit at law" structure in the International Covenant on Civil and Political Rights, and through the clear separation into two different paragraphs in the Canadian Bill of Rights. All of these provisions existed when the Charter was enacted and it must be assumed that the legislature had full knowledge of them.
241 This idea of a clear distinction between the "non-penal" sphere and the "penal" sphere when it comes to judicial protection was very well known when the Charter was passed. Professor Tarnopolsky referred to it as follows in the context of the Canadian Bill of Rights (The Canadian Bill of Rights (2nd ed. 1975), at p. 259):
It seems that Parliament intended the two subsections [2(e) and (f) of the Canadian Bill of Rights] to cover civil and criminal hearings respectively. Subsection (e) uses terms which are usually applicable to standards used by courts to supervise administrative agencies which are required to hold hearings. Subsection (f) on the other hand, refers specifically to a hearing where a person is "charged with a criminal offence". [Emphasis added.]
242 If the Quebec legislature had really intended to make s. 23 applicable to both "non-penal" and "penal" matters, would it not have been much simpler for it to use the explicit wording of the other three provisions? Would it not have been much more consistent with the rules of sound legislative drafting to make that applicability explicit in two ways: through the wording of the section itself, in two paragraphs, and by positioning the section in another part of the Charter, not in Chapter III but somewhere else where its applicability would not have been ambiguous?
243 I note that this distinction was the subject of academic debate at the time; I further note that clear distinctions already existed in the other available wordings that were used as models for drafting s. 23. All of this makes the legislature's intention in passing ss. 23 and 56(1) clear: it intended that they apply to "matters of penal significance".
244 If the legislature had intended to make these provisions applicable to every agency that makes quasi-judicial decisions, it would have (1) drafted them with a clear wording, using the ready-made models that were available, and (2) placed them elsewhere than in Chapter III.
C. Conclusion
245 Did the Quebec legislature intend that a quasi-constitutional remedy invalidating enabling legislation erga omnes should be available in respect of every quasi-judicial decision, or only in respect of quasi-judicial decisions of penal significance? This intention can be determined by reading the relevant provisions in context and assessing which of the two possible interpretations is the most plausible.
246 In the immediate context, the denotation of the terms listed in s. 56(1) should be limited to the "matters of penal significance" concept pursuant to the noscitur a sociis rule. In the context of Chapter III of Part I of the Charter, s. 23 should be limited to "matters of penal significance" pursuant to the principles of contextual interpretation and sound legislative drafting. In the context of the statute as a whole, an interpretation of s. 23 that is not limited to "matters of penal significance" makes the Charter internally incoherent. Finally, the external context furnished the Quebec legislature with an explicit and clear model for the wording of s. 23 that would easily have enabled it to clearly express an intention to have the section apply to the "non-penal" sphere; however, the legislature chose not to use that wording.
247 After interpreting the provisions in an informed manner using the "modern" contextual approach, I conclude that the term "quasi-judicial" in s. 56(1) of the Charter has the following denotation: "quasi-judicial in areas of penal significance". Accordingly, since in the case at bar the Régie des permis d'alcool did not make a quasi-judicial decision in the "matters of penal significance" category, the Charter is not applicable. The instant case is governed rather by administrative law and the remedies of evocation and declaration.
248 Since the Charter is not applicable, it is not necessary to resolve the specific issue of whether the provisions in question have codified, replaced or repealed the common law. However, I note on an incidental basis that the Charter is not a "complete code that excludes or supplants the common law" in the area of administrative law.
D.Consequences of the "Penal Significance" and "Non-Penal Significance" Categorization
249 What are the consequences of this categorization for administrative law and the law in general? First of all, a clarification must be made here. There is no doubt that the term "tribunal" used in both the English and French versions of s. 23 includes a court hearing any type of matter. I refer to arts. 4(j) and 22 of the Code of Civil Procedure and s. 1 of the Courts of Justice Act, R.S.Q., c. T-16, in the English versions of which the French term "tribunal" is translated as "court":
- . . .
(j) "court" means one of the courts of justice enumerated in article 22 or a judge presiding in a courtroom.
- The courts under the legislative authority of Québec which have jurisdiction in civil matters are:
(a)the Court of Appeal;
(b)the Superior Court;
(c)the Court of Québec;
(e)the municipal courts.
1.The Courts of Québec, in civil, criminal and mixed matters, are:
The Court of Appeal;
The Superior Court;
The Court of Québec;
The Municipal Courts.
250 Of course, if the court hears criminal cases or penal cases under provincial law, all of Chapter III of Part I of the Charter applies. If the court hears other types of cases, for example, property and civil rights cases, the hearing still has "penal significance", inter alia because the court always has the power to find a party in contempt of court and punish that party accordingly: see arts. 1, 14, 15, 49 to 54 and 84 of the Code of Civil Procedure. Chapter III of the Charter therefore applies to the courts, whether they are hearing penal cases or civil cases.
251 In any event, the matters "of penal significance" and "of non-penal significance" categorization that I have established in this appeal does not really have any practical application in the case of the courts; this categorization applies solely to a "person or agency exercising quasi-judicial functions" pursuant to s. 56(1) of the Charter. One way to understand this categorization is to ask the following question: is the impact of the administrative agency's decision on the persons involved significant enough to warrant procedural protection as broad as that provided for in Chapter III of Part I of the Charter? If so, the agency in question falls within the category created by s. 56(1), and s. 23 applies. If not, the agency in question does not fall within the s. 56(1) category and, since s. 23 does not apply, the common law will govern the situation.
252 Even in administrative law cases to which Chapter III of Part I of the Charter does not apply, it should be borne in mind that all administrative and quasi-judicial acts are subject, inter alia, to the audi alteram partem and nemo judex in propria sua causa debet esse rules under the common law. In each case, the court responsible for reviewing the decision will have to determine the specific content of the duty the agency has to act fairly or observe natural justice.
253 Depending on the facts of the case, the level of common law procedural protection might be the same as the protection available if Chapter III of Part I of the Charter applied, aside, of course, from the invalidation of statutes erga omnes. Even the privilege against self-incrimination under s. 38 of the Charter would come into play in all applicable cases, in the following manner. First of all, the privilege applies not when the testimony is given, but once an attempt is made to use it in an incriminating fashion: Dubois v. The Queen, 1985 10 (SCC), [1985] 2 S.C.R. 350. Next, in Starr v. Houlden, 1990 112 (SCC), [1990] 1 S.C.R. 1366, at p. 1441, I stated the following in reference to testimony before a provincial commission of inquiry:
Furthermore, ss. 11 and 13 of the Canadian Charter of Rights and Freedoms . . . guarantee that regardless of what evidence was tendered during the inquiry . . . Ms. Starr or anyone else implicated will be protected against the subsequent use of testimony given at the inquiry should the matter ever be prosecuted in a court of law.
254 In my view, therefore, in an administrative law context the privilege against self-incrimination under s. 38 of the Charter would be applicable once an attempt was made to use for the purpose of incrimination, testimony given ex ante before an administrative agency. For other examples of common law procedural protection, see generally, for instance, D. P. Jones, A. S. de Villars, Principles of Administrative Law (2nd ed. 1994), at pp. 229-369.
255 In reality, erga omnes invalidation is the only right conferred by Chapter III of Part I of the Charter that could not be conferred on a litigant under the common law in an administrative law context.
IV. Summary
256 1. In Quebec public law, the common law generally applies, subject to legislative amendments. Accordingly, administrative law issues should first be considered from the perspective of the common law.
257 2. Agencies that perform quasi-judicial or administrative acts are subject to the nemo judex in propria sua causa debet esse rule in accordance, respectively, with the duty to act in accordance with natural justice and the duty to act fairly.
258 3. The nemo judex rule includes a duty to be impartial. An agency can be either impartial or biased: there is no intermediate option. Reasonable apprehension of bias is the indicator that allows this issue to be resolved judicially. Would the agency cause an informed person to have a reasonable apprehension of bias in a substantial number of cases? If so, a legal finding of bias will result; if not, a legal finding of impartiality will be made.
259 4. The agency's independence from the executive branch of government is a prerequisite for, but is not sufficient to guarantee, impartiality. Tribunals are never perfectly independent; their independence is relative and varies along a continuum depending on the nature of the tribunal, the institutional constraints it faces and the peremptory nature of its decisions. When a finding of bias is made for some other reason, a judicial analysis of independence may be unnecessary.
260 5. In the case at bar, it has been shown that the Régie would cause an informed person to have a reasonable apprehension of bias in a substantial number of cases. It should therefore be found that the Régie is biased. By implication, the Régie has violated the nemo judex rule and thus breached its duty to act fairly. This breach opens the door to the common law remedies applicable in the circumstances.
261 6. Any breach of the duty to be impartial means that the decision in question can be quashed through a motion in evocation under art. 846 of the Code of Civil Procedure and that the provisions of the enabling statute can be declared of no force or effect inter partes under arts. 453 et seq. of the Code of Civil Procedure.
262 7. When an administrative agency makes a quasi-judicial decision in the matters of penal significance category, the same common law remedies mentioned above are available; however, ss. 23 and 56(1) of the Charter also come into play and provide other additional remedies. In the event of a breach of the duty to be impartial in this category, the aggrieved individual may also have the enabling statute struck down erga omnes, in whole or in part, under s. 52 of the Charter.
263 8. In the case at bar, the Régie's decision was not a quasi-judicial decision in the matters of penal significance category. It was a decision about the suspension and cancellation of liquor permits. This type of decision falls within the "non-penal" category. Accordingly, s. 23 of the Charter is not applicable to the circumstances of this case. The erga omnes declaratory remedy is not available in the instant case.
V. Disposition
264 For these reasons, I would dispose of the appeal as suggested by my colleague Gonthier J., but solely on the basis of the rules of administrative law.
Appeal allowed with costs to the respondent.
Solicitors for the appellants: Bernard, Roy & Associés, Montréal.
Solicitors for the respondent: Simon Venne and Marie Paré, Montréal.
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