[1977] 2 F.C. 726, 75 D.L.R. (3d) 380, 1977 CarswellNat 70

 

Landreville v. R. (No. 2)

Léo A. Landreville (Plaintiff) v. The Queen (Defendant)

 

Federal Court of Canada — Trial Division

 

 

SUBSEQUENT HISTORY:  Not Followed in:  Prince v. New Brunswick (Commissioner, Inquiries Act), 180 N.B.R. (2d) 81, 1996 CarswellNB 374, 458 A.P.R. 81 (N.B. Q.B. May 21, 1996)
Distinguished in:  Culligan v. New Brunswick (Commissioner, Inquiries Act), 178 N.B.R. (2d) 321, 1996 CarswellNB 674, 454 A.P.R. 321, [1996] N.B.J. No. 273 (N.B. Q.B. May 21, 1996)
Richards v. New Brunswick (Commissioner, Inquiries Act), 180 N.B.R. (2d) 1, 1996 CarswellNB 673, 458 A.P.R. 1 (N.B. Q.B. May 21, 1996)

 

 

JUDGE:  Collier J.

 

Ottawa: February 2, 1977

Ottawa: February 3, 1977
Ottawa: February 4, 1977

Ottawa: April 7, 1977

Docket: T-2205-72

 

COUNSEL:  G. Henderson, Q.C., and Y.A.G. Hynna for plaintiff.

G. Ainslie, Q.C., and L. Holland for defendant.

 

SUBJECT:  Civil Practice and Procedure

 

Judges and Courts — Appointment, removal and disqualification of judges — Removal.

 

Judges and Courts — Contempt of Court — Jurisdiction over contempt — Other Courts and tribunals.

 

Limitation of Actions — Laches and acquiescence.

 

Jurisdiction — Royal Commission inquiry into activities of plaintiff, a former superior court judge — Whether appointment of Commissioner to investigate a judge is ultra vires the Governor in Council — Whether Commissioner exceeded jurisdiction — Whether plaintiff given opportunity to be heard re allegations of misconduct — Inquiries Act, R.S.C. 1952, c. 154, ss. 2, 3, 13 — The British North America Act, 1867, ss. 92(14), 96, 99(1) — Judges Act, R.S.C. 1952, c. 159, ss. 31, 33; R.S.C. 1970, c. J-1, ss. 31, 32,  32.2.

 

The plaintiff, a Judge of the Supreme Court of Ontario from 1956 to 1967, was the subject, in 1966, of a Royal Commission inquiry into his relationship with Northern Ontario Natural Gas Limited. In 1967 the Commissioner rendered an unfavourable Report, and the plaintiff resigned. He brought an action for a declaration (1) that the appointment of the Commissioner was null and void, (2) that the Commissioner lost jurisdiction by exceeding his terms of reference, and (3) that the plaintiff was not given notice or an opportunity to be heard concerning allegations of misconduct, as required by section 13 of the Inquiries Act. With respect to the first issue the defendant submitted that the Commission was validly constituted, that the plaintiff had consented to it and could not now challenge it, and that plaintiff did not challenge the appointment of the Commissioner or his jurisdiction at the inquiry itself. With respect to the third issue defendant maintained that the allegations or charges were set out in the Order in Council and Letters Patent establishing the Royal Commission. In addition, the defendant (4) put forth the equitable defence of laches, and (5) challenged the jurisdiction of the Court to make a declaration on the ground that the matter is now academic.

 

Held, the plaintiff will have a declaration limited to the section 13 issue, with costs.

 

(1) The procedure for removal of judges by joint address of the House of Commons and the Senate, as set out in section 99 of The British North America Act, 1867, is not, as plaintiff contends, a code of its own. The Governor in Council, as distinguished from the Governor General or Parliament, can authorize an inquiry into the conduct of a superior court judge. The conduct of judges is a “… matter connected with the good government of Canada …” (section 2 of the Inquiries Act). However, if there was no constitutional power in the Governor in Council to initiate the inquiry, then the plaintiff’s consent or request for it, and the agreement not to object to it, could not cure the defect.

 

(2) The terms of reference of the Commission were wide enough to embrace the portions of the Report and the conclusions attacked by plaintiff. The plaintiff’s credibility was in issue, and the Commissioner’s method of dealing with the question did not amount to going beyond the terms of reference and so losing jurisdiction.

 

(3) Section 13 of the Inquiries Act requires that a person against whom a charge of misconduct is alleged be given reasonable notice of, and an opportunity to reply to, such allegation. The Commissioner found that the plaintiff had been guilty of gross contempt before three other tribunals. This matter was not within the terms of reference of the Commission and the plaintiff was not given an opportunity to meet the specific charges. The Commissioner thus failed to comply with the mandatory requirements of section 13. The Commission should have been reconvened, and notice of the “charge” of misconduct given; the plaintiff should then have been allowed to call witnesses and answer the charges.

 

(4) There is no compelling or equitable reason to invoke the defence of laches. The defendant has not been induced to alter any position.

 

(5) Although the declaration will have no legal effect it may serve some practical purpose in other pending litigation involving the plaintiff, and in that it will be a matter of public record that the plaintiff did not have a full opportunity to be heard.

 

Crabbe v. Minister of Transport, [1972] F.C. 863, applied. Landreville v. The Queen, [1973] F.C. 1223 and Merricks v. Nott-Bower, [1964] 1 All E.R. 717, followed.

 

Action for declaratory judgment.

 

The following are the reasons for judgment rendered in English by Collier J.:

 

1     The plaintiff is a solicitor now practising in Ottawa. In 1933 he went to Sudbury, Ontario. He eventually established a substantial law practice. Over a number of years he held, while still carrying on his legal business, public offices in the Sudbury area, “… such as School Trustee, Alderman, Member and Chairman of the Sudbury Hydro Commission.” He became mayor of Sudbury on January 1, 1955.

 

2     While he was mayor, the Sudbury council approved a franchise to Northern Ontario Natural Gas Limited (“NONG”), to distribute natural gas to Sudbury by laterals and distributing pipe systems. The main system or trunk line was that of TransCanada PipeLine Company.

 

3     On September 13, 1956 he was appointed a Judge of the Supreme Court of Ontario[FN1] . His appointment was effective October 10, 1956. On October 12, he was sworn in.

 

4     In February of 1957 the plaintiff was sent a letter from a Vancouver brokerage company enclosing shares of NONG. I shall later set out more detail. I merely refer, at this point, to NONG shares in order to make clear what the plaintiff seeks in this action.

 

5     On January 19, 1966, the Governor in Council appointed the Honourable Ivan C. Rand, a retired Judge of the Supreme Court of Canada, a Commissioner under Part I of the Inquiries Act[FN2] . His terms of reference were:

 

(a) to inquire into the dealings of the Honourable Mr. Justice Leo A. Landreville with Northern Ontario Natural Gas Limited or any of its officers, employees or representatives, or in the shares of the said Company; and,

 

(b) to advise whether, in the opinion of the Commissioner,

 

(i) anything done by Mr. Justice Landreville in the course of such dealings constituted misbehaviour in his official capacity as a Judge of the Supreme Court of Ontario, or

 

(ii) whether the Honourable Mr. Justice Landreville has by such dealings proved himself unfit for the proper exercise of his judicial duties.[FN3]

 

6     After 11 days of hearings at various Canadian cities in March and April, 1966, the Commissioner issued a report. It was dated August 11, 1966. It was not made public until tabled in the House of Commons on August 29 of that year.

 

7     A special Joint Committee of the Senate and House of Commons was appointed in late 1966. Its purpose was:

 

…to enquire into and report upon the expediency of presenting an address to His Excellency praying for the removal of Mr. Justice Leo Landreville from the Supreme Court of Ontario, in view of the facts, considerations and conclusions contained in the report of the Honourable Ivan C. Rand….

 

 8     The Committee held 19 meetings in February and March of 1967. The plaintiff appeared as a witness. He testified at 11 of the meetings.

 

9     The material portions of the Joint Committee’s final report, dated April 13, 1967, were:

 

2. In accordance with its terms of reference, during the course of nineteen (19) meetings, the Committee applied itself to, and carefully examined the facts, considerations and conclusions contained in the said report.

 

3. The Committee invited Mr. Justice Landreville to appear before it as a witness. He testified at eleven (11) meetings of the Committee and answered questions from Members of and Counsel to the Committee.

 

4. The report of the Honourable Ivan C. Rand states:

 

No question is raised of misbehaviour in the discharge of judicial duty; the inquiry goes to conduct outside that function.

 

5. The reflections of the Honourable Ivan C. Rand on Mr. Justice Landreville’s character were not considered pertinent and thus played no part in the Committee’s decision.

 

6. After hearing the testimony of Mr. Justice Landreville and considering the report of the Honourable Ivan C. Rand, the Committee finds that Mr. Justice Landreville has proven himself unfit for the proper exercise of his judicial functions and, with great regret, recommends the expediency of presenting an address to His Excellency for the removal of Mr. Justice Landreville from the Supreme Court of Ontario.

 

10     By letter dated June 7, 1967, (Ex. 35), the plaintiff tendered, effective June 30, his resignation as a Judge. It was accepted.

 

11     This suit is an attack against the validity of the appointment of the Commissioner to hold the inquiry of 1966, the manner in which certain aspects of the inquiry were carried out, and against the report itself.

 

12     The remedies sought are as follows:

 

(a) A Declaration that the appointment of the said Commissioner was not authorized by the Inquiries Act and that consequently the said Report is null and void;

 

(b) A Declaration that, if the said Commissioner was validly appointed to hold an Inquiry and make a Report, which the Plaintiff denies, the said Report made by the Commissioner on August 11, 1966, should be removed into this Court to be quashed by reason of the matters set out in paragraph 7 of this Declaration;

 

(c) That a Writ of Certiorari be issued removing into this Court the said Report and all records, proceedings, papers and transcripts of evidence relating to the said Inquiry and to quash the said Report;

 

13     Three questions of law were argued some time before trial.[FN4] The questions came on before Pratte J. In respect of the relief claimed in paragraph (b) of the declaration, he assumed [at page 1226]:

 

…that in subparagraph (b) the plaintiff claims a declaration that the Commissioner, for the reasons set out in paragraph 7 of the Declaration, conducted his inquiry irregularly and that his report should be quashed.

 

14     The questions of law submitted were:

 

1. Whether this Honourable Court has jurisdiction to issue a Writ of Certiorari against Her Majesty the Queen; 2. Whether this Honourable Court has jurisdiction to quash the report of the Royal Commission appointed by letters patent bearing date the 2nd day of March, 1966; 3. Whether this Honourable Court has jurisdiction to grant a declaration in the circumstances alleged in the Statement of Claim herein;

 

15     In respect of the first question, the formal ruling was:

 

1. That it is not expedient to give an answer to the first question since, even  if the action were not brought against Her Majesty, certiorari would not lie in this case.

 

The second question was answered “No” and the third “Yes”. Reasons were given. In dealing with the third question, Pratte J. said [at page 1228]:

 

The plaintiff, according to my interpretation of his Declaration, seeks two declarations: first, that the appointment of the Commissioner was ultra vires and, second, that the Commissioner did not conduct the inquiry as he should.

 

He went on [at page 1229]:

 

These contradictory submissions can be briefly summarized. Counsel for the defendant argued that the declarations sought could not be made because they would not have any legal effect. Counsel for the plaintiff contended that these declara tions could be made because they would, from a purely practical point of view, be beneficial to the plaintiff.

 

The question to be answered is therefore whether this Court has jurisdiction to make a declaration on a legal issue in a case where the declaration would be devoid of legal effects but would likely have some practical effects….

 

He answered the question affirmatively, adopting the reasoning of the English Court of Appeal in Merricks v. Nott-Bower[FN5] , and holding [at page 1230]:

 

From this, I infer that the Court has the jurisdiction to make a declaration which, though devoid of any legal effect, would, from a practical point of view, serve some useful purpose.

 

16     At the trial, Mr. Henderson for the plaintiff, put forward three main submissions:

 

1. The Commission was not validly constituted. The only procedure to be followed is set out in s. 99 of the British North America Act. 2. If the Commission was indeed validly constituted, the Commissioner lost jurisdiction by exceeding the terms of reference. 3. Again, assuming the legality of the Commission, the Commissioner did not comply with the requirements of s. 13 of the Inquiries Act.

 

17     In order to deal with these contentions and the submissions on behalf of the defendant, it is necessary to recount the background and facts leading to the appointment of the Commissioner.

 

18     In 1958 the Ontario Securities Commission directed an investigation into the trading in shares of NONG from its incorporation to the date when its units (one debenture and one common share) were qualified for sale in Ontario, June 4, 1957. A report was issued on August 18, 1958. At that time certain information available in British Columbia had not come to light. For that reason, neither the plaintiff nor any involvement by him in shares of NONG was investigated. In 1962, on the basis of certain information supplied by the Attorney General for British Columbia another investigation, or perhaps a further investigation, was directed.

 

19     It appeared that 14,000 shares of NONG had been, on January 17, 1957, allotted to Convesto, a nominee name used by Continental Investment Corporation Limited (brokers) of Vancouver. An investigation in British Columbia revealed that 4,000 of those shares had then been transmitted to J. Stewart Smith, the former British Columbia superintendent of brokers and 10,000 to the plaintiff.

 

20     Ralph K. Farris was at all relevant times the President of NONG. He gave evidence before the Ontario Securities Commission both in 1958 and 1962. The plaintiff gave evidence in 1962 as to how he had acquired the 10,000 shares in NONG.

 

21     A perjury charge was laid against Ralph K. Farris. It arose out of the testimony, in respect of the Convesto share transaction, he had given the Securities Commission. His preliminary hearing was in the latter part of 1963 and the early part of 1964. The plaintiff gave evidence.

 

22     Farris was committed for trial. The trial was before a Supreme Court Judge and jury in 1964. Once more, the plaintiff was called as a witness and gave evidence in respect of the share transactions referred to. Farris was convicted.

 

23     On June 12, 1964 the plaintiff wrote the Honourable Guy Favreau, the Minister of Justice for Canada. He pointed out that since 1962 there had been insinuations in the Ontario Legislature that NONG and he “…have been guilty of corrupt practices.” He requested an inquiry should take place at his own request; that a special commissioner be appointed; and:

 

The terms of reference would be broad but simple: whether or not there has been any conflict of interest, bribery, undue influence or any corrupt practices in the award of the Sudbury Gas Franchise.

 

He added that the only alternative to his request would be the Ontario Attorney General laying some charge against him “…to provide me with similar opportunity” [to prove his innocence].

 

24     The Minister of Justice indicated he would study the matter.

 

25     Before his request was further dealt with, the Attorney General for Ontario, in August, 1964, laid charges against the plaintiff. In essence, the accusation was that while he was mayor of Sudbury, he offered or agreed to accept stock in NONG in return for his influence in seeing that NONG obtained a franchise agreement in Sudbury. There was also a charge of conspiracy, to the same effect, with Farris. Similar charges, in respect of granting of franchises, were laid against the mayors of Orillia, Gravenhurst and Bracebridge.

 

26     The plaintiff’s preliminary hearing was in September or October of 1964, presided over by Magistrate Albert Marck. The Magistrate discharged the accused, expressing the view a properly charged jury could not find him guilty. Two of the other mayors were discharged on their preliminary hearings; the third was committed for trial, but acquitted by a county court jury.

 

27     The Attorney General for Ontario, shortly after, issued a press release in which it was stated[FN6] :

 

The Attorney General today announced that he will not prefer a Bill of Indictment before a Grand Jury in respect of Mr. Justice Landreville. In so far as the Department of the Attorney General is concerned, the matter of the prosecution of Mr. Justice Landreville is concluded.

 

28     The next event, in the evidence before me, was a report by a special committee of The Law Society of Upper Canada. The Society, in January of 1965, had struck a special committee to consider and report on what action, if any, should be taken by it “…as a result of Mr. Justice Landreville’s decision to continue to sit as a Judge of the Supreme Court of Ontario”. The report of the special committee was made on March 17, 1965. It was adopted by Convocation, with one dissent, on April 23, 1965. The report contained what was termed a “statement of facts” and certain “conclusions” on those facts. One was “…there is no doubt that the Magistrate was correct in dismissing the charges against Landreville”.

 

29     The report went on to set out certain “…matters which are unexplained, and upon which your committee can only speculate”. Following those speculations  the committee stated, “…the following inference … can be drawn from the foregoing questions which remain unanswered … [the speculative matters]”:

 

YOUR COMMITTEE REPORTS THE FOLLOWING INFERENCE THAT CAN BE DRAWN FROM THE FOREGOING QUESTIONS WHICH REMAIN UNANSWERED:

 

The fact that Landreville was given an opportunity to acquire shares at the same price as the original promoters of the Company and that the option was given immediately following the passing of the third reading of the by-law and for no apparent consideration, and that subsequently without any exercise of such option by Landreville he received 7500 shares free and clear, which he subsequently sold for $117,000, and that when Farris was first questioned about the matter he deliberately lied, support the inference that the acquisition of shares by Landreville was tainted with impropriety.

 

The report went on:

 

THE FOLLOWING ARE THE OPINIONS AND RECOMMENDATIONS OF YOUR COMMITTEE:

 

The above recited facts are matters of public knowledge and are, in the opinion of your Committee, inconsistent with the reputation for probity required of one  of Her Majesty’s Judges for the due administration of justice in this Province.

 

As a consequence of these facts, the questions unanswered, and the inference which your Committee has drawn and which it believes the public has also drawn, YOUR COMMITTEE RECOMMENDS —

 

1. That the Benchers of The Law Society of Upper Canada in Convocation deplore the continuance of the Honourable Mr. Justice Landreville as one of Her Majesty’s Judges of the Supreme Court of Ontario.

 

30     On the evidence before me, the plaintiff knew absolutely nothing of this special committee and its activities. He was never invited to appear before them to answer their unexplained matters or speculations. A copy of the report was sent to the Federal Minister of Justice,[FN7] and to the plaintiff.

 

31     I think I ought to say, at this point, that I characterize the action and report of the Society as puzzling, and, in retrospect, probably unwarranted.

 

32     Although the evidence before me is unclear, the contents of the report were not made public at that time. The Commissioner annexed it as “Appendix A”  to his report.[FN8]

 

33     On April 30, 1965, the plaintiff wrote to the Minister of Justice in connection with this report. Some question had apparently been raised about it in the House of Commons. He wrote also the Secretary of the Law Society. He complained the special committee had not seen fit to call on him to answer any of the questions it had raised. He pointed out he had, during the three previous years, made repeated requests to provincial and federal authorities “…to have the matter fully aired”.

 

34     I should digress at this stage to say that the plaintiff had, when the criminal charges where laid against him, retained a well known counsel, Mr. John J. Robinette, Q.C. Mr. Robinette was a bencher. He had taken no part in the investigation and report of the Law Society. As I understand the evidence, the plaintiff was still, at this stage, receiving advice from Mr. Robinette.

 

35     On May 7, 1965, the plaintiff telegraphed the Minister of Justice withdrawing his previous request for an inquiry. He asked Mr. Favreau to make no decision on a course of action until the Minister had read his (the plaintiff’s) report.

 

36     On May 13, 1965, he wrote the Minister. He commented on the Law Society report. He went on to say:

 

Am I being attacked as a Judge? If so, of what unbecoming conduct? What am I accused of specifically? I have no intention of dealing with the facts. As you are well aware, I have on more than one occasion and particularly immediately after my acquittal requested that a Public Enquiry be held to vindicate my name on all possible grounds. I attach a copy of your letter and a news item. I strongly feel I have done all possible including keeping dignified silence in the face of unfounded gossip. I now withdraw from that position for the following reasons:

 

(a) The subject matter was deemed closed six months ago. I have returned to my functions. The Bar and the Public have shown usual courtesy and co-operation.

 

(b) An Enquiry would re-open, deal with and review facts which are strictly res judicata. The Attorney General has made such review and closed his files.

 

(c) The Report of the Law Society, making as it does unfounded findings, prejudices me and is defamatory.

 

(d) Regardless of the most favourable decision, an Enquiry and proceedings with pertaining publicity, would be conclusively detrimental and final to my reputation.

 

(e) I am advised by my counsel J.J. Robinette, Q.C. and others, that a judge does not come under the Enquiry Act, the Civil Servants Act or any other statute and an enquiry is illegal.

 

(f) I am advised that it is inimical to the interest of the Bench that I create the precedent of requesting and submitting to an Enquiry because of the criticism of person or association.

 

. . . . .

 

Again, Sir, I submit the Report of the Society does not accuse me specifically of serious breach of Law or Ethics. If so, it then becomes a question whether or not, in my sole discretion, I deem fit to invite further proceedings and publicity to vindicate my name to the mind of some people who prefer gossip to facts. To the sound person, unmoved by publicity-allergy, my past is pure and proven so to be. Should you adhere to your previous decision and base it anew on the opinion of those who know the facts (Magistrate Marck, Mr. Justice D.  Wells, the Attorney-General) the matter may be closed by your statement in the House after recital of facts. Of course, if you are satisfied there are reasonable and probable grounds to justify impeachment proceedings, it is your duty so to do. Those proceedings I must meet in both Houses. In the light of present events, I have no intention of resigning. During my entire career as a solicitor, a member of Boards, Commissions and Councils, as a Judge, I have conducted myself in strict conformity to the highest concept of Ethics. Of this, others may speak, others who know me.

 

37     On June 12, 1965, Magistrate Marck wrote the Law Society. He had been shown a copy of its report. He characterized it as a grave injustice. He said there was a total absence of any evidence the plaintiff had been guilty of any corruption. He suggested the Benchers might see fit to reconsider their report. He indicated his willingness to appear before them.

 

38     On June 18, 1965, Mr. Robinette wrote the Minister of Justice referring to the Magistrate’s letter. He suggested that it provided the answer to the speculations of the Law Society. He expressed the hope, in those circumstances, the Minister would not deem it necessary to institute any form of judicial inquiry. Mr. Robinette pointed out he had written to the Minister in February of 1965 expressing grave doubts as to the constitutional power of the Governor  in Council to direct a judicial inquiry with reference to the conduct of a superior court judge.

 

39     The Honourable Lucien Cardin became Minister of Justice. On July 29, 1965, he sent a telegram to the plaintiff. It stated in part: “I … have reached the conclusion that, in your own interests, as well as in the interests of the administration of justice, a formal inquiry … would be desirable.” He invited comments from the plaintiff.

 

40     The plaintiff on August 4, replied:

 

It will be noted from your file that I have invited an inquiry on several occasions. I include conversations with your two predecessors Honourable Chevrier and Honourable Favreau. However, your predecessor, having reviewed his file and the judgment of Magistrate Marck did decide in October 1964 that a public inquiry was not warranted by the facts. His comments to the press indicate this. There are no new facts. Since that time, it has been pointed out to me by a number of my colleagues that for a Superior Court Judge to submit or consent to a public inquiry would establish a very dangerous precedent, particularly when such acts antedate his appointment and do not relate to the performance of his official duties. Further, your file contains a letter from  my solicitor, J.J. Robinette, Q.C., to Honourable Favreau dated February 22, 1965. It expresses our view that a Superior Court Judge does not come under the Civil Service Act, the Public Officers Act, the Inquiries Act — nor any other applicable statute. Under the law the Superior Court Judge is answerable only before both Houses on proceedings of impeachment. You do realize no one is more interested than I to vindicate fully my name. The dilemma raises, therefore, a question of jurisdiction. You may deem the question to be of sufficient importance to be submitted to the Supreme Court of Canada for determination. I am prepared to submit only to whatever inquiry or process the Supreme Court of Canada holds to be legal. That question, however, does not and will not prevent you from taking impeachment proceedings at any time if you deem facts justify such action. It must be noted no one has accused me of breach of Ethics in an act done nine years ago.

 

. . . . .

 

It appears now that the issue takes a legal aspect, and in view also of my absence from the country until the end of this month, I would beg you to address future correspondence to Mr. J.J. Robinette, Q.C., c/o McCarthy and McCarthy, Solicitors, Canada Life Building, University Ave., Toronto.

 

41     Mr. Cardin, on August 18, answered:

 

I have very carefully considered your letter of August 4th, and the points you make. Nevertheless, I feel that in the interests of the administration of justice I must recommend to my colleagues that a Commissioner be appointed to conduct an inquiry and to make his report to the Government. As I view the matter, the issue is not whether an offence was committed. The question that has been raised is, as I indicated in my telegram, quite a different one. The purpose of the inquiry would not be to review the decision of the Magistrate, but to ascertain whether it is in the interests of the administration of justice that, having regard to all the circumstances, you should continue to hold your present office. It is on this question that I feel an opinion from an eminent outside and independent authority ought to be obtained. It is therefore my intention to proceed with the inquiry.

 

42     Mr. Cardin and the plaintiff then, on August 30, met in Toronto. It seems the past history of the whole affair was discussed. According to notes made by the plaintiff (Exhibit 37), he told the Minister that while a decision to hold an inquiry was, of course, the Minister’s, Mr. Robinette and Mr. Sedgewick strongly opposed such an inquiry. There was some mention by the plaintiff of not answering any subpoenas that might be issued by a Commissioner, and a motion then being launched to have the inquiry declared illegal. The Minister indicated his view that an inquiry into the conduct of a judge was, under the Inquiries Act, permissible.

 

43     The discussion was inconclusive. The Minister indicated the whole matter would be left open; any decision to launch an inquiry would, at the moment, be held in abeyance.

 

44     Some telegrams were then exchanged in connection with a press suggestion that the Law Society’s report was going to be released. Mr. Cardin’s telegram of November 23, 1965, to Mr. Robinette said in part: “… I … propose you consent to appointment of Commission under Inquiries Act.”

 

45     Mr. Robinette replied on November 29. He quoted at length from his letter of February 22, 1965 to Mr. Cardin’s predecessor. In that previous letter he had expressed the view that section 2 of the Inquiries Act did not authorize the Governor in Council to set up an inquiry with reference to the conduct of a superior court judge. He had, in February, set out his position that:

 

…under our Constitution the only person who has any jurisdiction whatsoever  over the behaviour of a Superior Court Judge is the Governor General and then only “on address of the Senate and House of Commons” as stipulated in Section 99 of The British North America Act.

 

46     On pages 3 and 4 of his November letter, he said:

 

My view with respect to this matter I know is shared by others and I think it would involve an interference with the independence of the judiciary if Mr. Justice Landreville were to consent to the appointment of a Commissioner under The Inquiries Act. In any event a Commissioner under The Inquiries Act either would or would not have jurisdiction and Mr. Justice Landreville’s consent could not give a Commissioner jurisdiction which he does not have. I have discussed the matter with Mr. Justice Landreville and what we suggest is that the government should refer the matter to the Supreme Court of Canada for an adjudication by it as to whether or not a Superior Court Judge in a province can be the subject of an inquiry under The Inquiries Act. Such a reference to the Supreme Court of Canada should also ask for the opinion of the Court as to what the words “during good behaviour” in section 99 of The British North America Act encompass. We made the suggestion to The Honourable Guy Favreau some months ago that this question as to the power of the government to appoint a Commissioner under The Inquiries Act to look into the status of a Judge of a  Superior Court ought to be referred to the Supreme Court of Canada. In short for the reasons which I have stated Mr. Justice Landreville is not prepared to consent to the appointment of a Commissioner but we repeat our suggestion that the question of the power of the government to appoint a Commissioner under the Inquiries Act should be referred to the Supreme Court of Canada along with a question the answer to which would define the scope and meaning of the words “during good behaviour” in section 99 of The British North America Act. Mr. Justice Landreville would welcome an opportunity to state his position before a forum having jurisdiction to deal with the matter. Such a forum would be removed from any considerations of political expediency and would be in keeping with the dignity of his office. The position which Mr. Justice Landreville takes, not only in his own interests but in the interests of the other members of the judiciary, is that under The British North America Act the only person having jurisdiction with respect to any possible removal is the Governor General of Canada acting on joint address of the Senate and the House of Commons as provided in section 99 of The British North America Act.

 

47     Mr. Cardin answered on December 28, 1965. He disagreed with Mr. Robinette’s contention as to the limitations of the Inquiries Act in respect of the conduct of superior court judges. He expressed the view the plaintiff could give consent to a commissioner’s jurisdiction. On this point he added: “A  commissioner would have no jurisdiction to make any judgment or order; his sole function would be to ascertain and report on the facts.” He did not agree that there should be a reference, as suggested, to the Supreme Court of Canada. On this point he said:

 

There is no doubt that Parliament itself has the right and the power to make an inquiry into the conduct of a judge, and such an inquiry could be instituted on the motion of any member of the House, whether he is a member of the Government’s side or not. If Mr. Justice Landreville is not agreeable to having an inquiry under the Inquiries Act, then I think he might expect that there will be a parliamentary inquiry. Such an inquiry would be founded on an allegation of impropriety and I should have thought that the Judge would prefer an “open” inquiry under the Inquiries Act that is not founded on an allegation of impropriety and would be designed simply to ascertain the facts. As for your proposed question to the Supreme Court, may I suggest that courts cannot be asked to interpret words in the abstract. The most that could be done would be to refer a statement of facts to the Court and ask whether on these facts there has been a breach of the condition of judicial office. However, the first thing to be done, in my judgment, is to ascertain what the facts are. In any event, I would point out that the question you suggest to be put to the Supreme Court is not the principal issue in this matter. The question is not so much whether the  Judge has breached the condition of his office, namely, that it be held during good behaviour, but whether he has in the opinion of Parliament conducted himself in such a way as to render himself unfit to hold high judicial office. Under section 99 of The British North America Act, a judge may indeed be removed for “misbehaviour”, but the power to remove on address extends to any ground and it is open to Parliament to make an address for the removal of a judge on any ground it sees fit, whether it constitutes misbehaviour in office or not. I may say frankly that I would not wish to institute an inquiry under the Inquiries Act if there is any prospect that Mr. Justice Landreville would attempt to frustrate the inquiry by prerogative writ or otherwise. However, if an inquiry under the Inquiries Act is not agreeable to your client, then the result may well be a motion in Parliament for an inquiry by a Parliamentary Committee. As I have pointed out, such a motion may be made by any member of Parliament. I should have thought that, from the Judge’s point of view, an inquiry under the Inquiries Act would be preferable. However, the choice rests with him, and if he is unwilling to have an inquiry under the Inquiries Act, I think it only fair to say that he may expect an inquiry by Parliament itself.

 

48     Following that correspondence, it seems Mr. Robinette went to Ottawa and discussed the affair either with the Minister or officials in the Department of Justice. He was made aware “in general terms” of the terms of reference for the  proposed Commission.[FN9]

 

49     On January 17, 1966, Mr. Robinette sent a telegram to Mr. Cardin as follows:

 

Justice Landreville has instructed me on his behalf to request the Government to appoint a Commissioner under the Inquiries Act to inquire into his dealings with Northern Ontario Natural Gas Company or any of its officers or servants.

 

50     I here point out that the telegram has some noticeable similarity to Commissioner Rand’s first term of reference. No reference is made to any other terms. The telegram was acknowledged two days later.

 

51     A statement was then made by the Minister in the House. The plaintiff wrote him on January 24, 1966. That letter is in French. My free translation of the first two paragraphs is as follows:

 

[TRANSLATION] I am indebted to you for the statement made in the House last week. I had understood from Mr. Robinette that you were to declare that this inquiry was to be held at my request. Moreover, he must have told you that this procedure has for its purpose to apprise you of the facts. The conclusions or  recommendations will not have the force of a final decision, since we always contend that only Parliament and the Senate have jurisdiction and they will decide, if the necessity arises. The procedure is therefore under all reserve and without creating a “precedent” because certain of my colleagues do not accept the position that the “Inquiries Act” applies.

 

52     The Commissioner was then appointed and his letters patent issued.

 

53     I shall, at this stage, deal with the first of the main submissions put forward, on behalf of the plaintiff, by Mr. Henderson, that the Commission was not validly constituted; the procedure to be followed is that set out in section 99 of The British North America Act, 1867. Mr. Ainslie, for the defendant, had three main points in reply: first, the Commission was, in law, validly constituted; second, the plaintiff had requested or consented to it and he now cannot challenge it; third, neither the plaintiff nor his counsel, at the inquiry itself, attacked the appointment of the Commissioner or his jurisdiction.

 

54     I set out sections 2 and 3 of the Inquiries Act[FN10] :

 

2. The Governor in Council may, whenever he deems it expedient, cause inquiry  to be made into and concerning any matter connected with the good government of Canada or the conduct of any part of the public business thereof.

 

3. In case such inquiry is not regulated by any special law, the Governor in Council may, by a commission in the case, appoint persons as commissioners by whom the inquiry shall be conducted.

 

55     The first Inquiries Act following Confederation appeared in 1868 (31 Vict. c. 38). The wording is identical, as to what matters may be inquired into, to the 1952 Revision:

 

…any matter connected with the good government of Canada, or the conduct of any part of the Public business….

 

But in the pre-Confederation legislation of the Province of Canada, the words “administration of justice” had also been listed as a matter of inquiry. I assume those words were removed because section 92(14) of The British North America Act, 1867 assigned legislative power, in respect of the administration of justice in the province, to the provinces.

 

56     It is necessary to set out, as well, sections 96 and 99(1) of The  British North America Act, 1867:

 

96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

 

. . . . .

 

99.(1) Subject to subsection (2) of this section, the judges of the superior courts shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons.

 

57     In respect of the tenure of superior court judges and their removal, the plaintiff contends that section 99(1) is a code in itself; in order to remove or dismiss a judge, there must first be an address of the Senate and House of Commons; the judge can then be removed by the Governor General. The plaintiff says any inquiry into the conduct of a judge must be initiated or made only by the Senate and the House of Commons. The plaintiff does not say the initial procedure must be the address referred to in section 99; he agrees the Senate and the House may, of their own motion, authorize or carry out investigative procedures before an actual address.

 

58     One must begin, the plaintiff argues, with the theory of separation of powers or functions: the executive, the legislative, and the judicial. The effect of section 99 of The British North America Act, 1867 is, it is said, to ensure the independence of the judges; independence is more than mere tenure and salary; it is freedom from harassment or inquisition. On those premises, the plaintiff contends that any investigatory process into the conduct or fitness of a superior court judge must be initiated by the Senate and House of Commons; those bodies alone must ascertain the facts on which an address might be based; any preliminary processes must be authorized or carried out by them. Counsel for the plaintiff says that, in this case, the “complaint of misconduct” came from an outsider (The Law Society of Upper Canada), prompting a decision, outside the two Houses, to investigate or inquire; that decision was made, not by the Senate or House, but by the Governor in Council;[FN11] the consequent investigation was carried out by a person not authorized by them to inquire or report on their behalf and for their purposes only. Finally, it is submitted the inquiry in question was not “… concerning any matter connected with the good government of Canada …”; the judges are independent and apart from government; their conduct in office, and tenure, can only be inquired into by means of section 99 of The British North America Act, 1867; by that code, the right to investigate or inquire, and the mode, is given to the Senate and the House, and to no one else.

 

59     The parties here disagreed as to whether, in Canada, the only method of removal of judges is through an address system in Parliament. The defendant contended there were, in Canada, two other courses open: (1) a writ of scire facias to repeal the letters patent appointing a judge; (2) a criminal information at the suit of the Attorney General.[FN12]

 

60     Professor W.R. Lederman, in 1956, wrote a lengthy and compelling essay “The Independence of the Judiciary”[FN13] . He reviewed the possible methods of removal of judges in England.[FN14] As to the post-Confederation situation in Canada, he said at page 1161:

 

Also, as in England, it is probable that the provision for removal of superior-court judges by joint address in the federal Parliament is additional to, and thus not exclusive of, the older prerogative type of removal without reference to Parliament.

 

That statement, to me, suggests that in Professor Lederman’s view, section 99 of The British North America Act, 1867 is not, as the plaintiff contends, a code of its own. In any event, Professor Lederman does not appear to discuss  specifically the point whether or not initial investigative procedures must emanate from Parliament.

 

61     The defendant relies, however, on a statement in Todd (footnote 12) that Parliament may originate the action of removal in various ways. It is said:

 

…after a preliminary enquiry — by a royal commission (at the instance of government, or at the request of either House of Parliament)….[FN15]

 

The defendant relied on this statement for authority that the Executive in this case, as well as the Senate and House, could initiate the proceedings by means of a Royal Commission outside Parliament. I agree with Mr. Henderson that the case cited by Todd in support of the proposition, (Chief Baron O'Grady’s case) is readily distinguishable. In the O'Grady case there was a standing or continuing commission of inquiry in respect of the Courts of Justice in Ireland. In their ninth and eleventh reports, the Commissioners accused Chief Baron O'Grady of unjustly and arbitrarily increasing his own fees. Two select committees of the House of Commons investigated the charge and confirmed the accusation. The government communicated their reports to the Commissioners, who again investigated the matter and reported back to the government. The whole matter was ultimately resolved, without Parliamentary address proceedings.

 

62     In the present case, there was, of course, no standing commission. The Executive passed an Order in Council setting up a special commission to inquire into the conduct of one particular judge in respect of certain transactions. I did not find the statement in Todd to be either helpful or conclusive on this point.

 

63     The defendant further asserts that because the Governor General, under section 96, appoints judges, then he and his council must, as a step in the process of their removal, have power to initiate investigations or inquiries. Professor Lederman, at page 1162 of his article, referred to sections 31 and 33 of the former Judges Act[FN16] . Where it was felt a superior court judge had become incapacitated or disabled by reason of age or infirmity, his salary could be stopped. The Governor in Council had first to issue a commission of inquiry to investigate and report upon the facts. Professor Lederman expressed doubt that this was a constitutionally permissible procedure. He said, (page 1163):

 

In my view section 31 of the Judges Act is inconsistent with the meaning of tenure during good behaviour prescribed in section 99 of the B.N.A. Act.

 

64     The opinions expressed in Todd and in Professor Lederman’s article do not bear squarely on the precise point raised by Mr. Henderson and disputed by Mr. Ainslie. I have concluded, but with doubt, that the Governor in Council, as distin guished from the Governor General or Parliament, can authorize an inquiry into the conduct of a superior court judge. Section 99 of The British North America Act, 1867 deals only with the power of removal: by the Governor General, but only after a Parliamentary address for removal. In this country the appointment of the judges of the superior, district and county courts of the provinces lies with the federal power. As I see it, the conduct of those judges is a “… matter connected with the good government of Canada….” The federal executive is empowered, under section 2 of the Inquiries Act, to cause an inquiry to be made. That was what occurred here. Section 99 of The British North America Act, 1867 does not, to my mind, preclude inquiries of the kind here ordered. If, for example, the Commissioner’s report had been favourable to the plaintiff, an investigation and address by the Senate and House, in accordance with section 99, would still have been open.

 

65     Technically, it is not now necessary for me to deal with the defendant’s other contentions on this issue: that there was consent by the plaintiff to this inquiry; that no “constitutional” objection was raised at any time during it. I feel I should express my opinion.

 

66     It is true that, as a matter of form, the inquiry was ordered after a request by the plaintiff. But I conclude, on the evidence before me, there was a good deal of pressure exerted on him. One cannot shut out the state of Canadian political history at that time. It is permissible to take judicial notice of the facts of history. In Calder v. Attorney General of British Columbia, Hall J. delivering the dissenting judgment of himself, Spence J. and Laskin J. [as he then was], said[FN17] :

 

Consideration of the issues involves the study of many historical documents and enactments received in evidence, particularly exs. 8 to 18 inclusive and exs. 25 and 35. The Court may take judicial notice of the facts of history whether past or contemporaneous: Monarch Steamship Co. Ltd. v. A/B Karlshamms Oljefabriker [[1949] A.C. 196], at p. 234, and the Court is entitled to rely on its own historical knowledge and researches: Read v. Lincoln [[1892] A.C. 644], Lord Halsbury at pp. 652-4.

 

67     The judgment of Martland, Judson and Ritchie JJ. was given by Judson J. No specific reference was made to the power of a court to take notice of historical facts. But it is obvious from the reasons that those three judges also resorted to history.

 

68     Here, the plaintiff’s name first came into prominence in 1962. In a general election in that year, the Progressive Conservative government was returned, with a minority. The next election in 1963 produced a Liberal minority government. That minority situation persisted until 1968. The history of that period records there were a number of matters which caused concern and difficulty to the minority government.[FN18] The plaintiff had earlier indicated he was prepared to launch legal attacks against any Royal Commission that might be set up. I think that would have been, if it had materialized, an embarrassing situation. The minority government’s other method, unchallengeable by the plaintiff, was to try and obtain a joint address in Parliament. The plaintiff’s choice, if it can be described as that, was not a real or free one.

 

69     Mr. Robinette had, before his telegram of January 17, 1966 (Exhibit 23), expressed his opinion on the constitutional issue. It was also his view a consent by the plaintiff could not validate something constitutionally invalid. The plaintiff in his letter of January 24, 1966 to Mr. Cardin (Exhibit 25) pointed out the procedure was under “all reserve”.

 

70     No challenge was made, at the opening of the inquiry or at any other stage, based on the constitutional issue. Counsel for the defendant relied on  that fact. The explanation is, I think, found at pages 1254 and 1255 of the transcript of proceedings. The plaintiff’s testimony had then been completed. Mr. Robinette wished to tender evidence indicating the plaintiff had, long before, made efforts to have his position aired before a public inquiry. A ruling was requested. The Commission er expressed the view it would be of little materiality (page 1233), but he heard it. At page 1254 the Commissioner fortuitously asked: “Was there ever any objection to the Commissioner under the Inquiries Act made?” [sic]. Mr. Robinette explained the legal position he had taken with Mr. Favreau. At pages 1254 and 1255 he continued:

 

I still have grave doubts whether the Dominion has the authority to empower a Commissioner to investigate, but that is really a matter of the constitution, organization and maintenance of the courts from a provincial standpoint, and therefore within the jurisdiction of the province, but I must add this, sir, that when this Commission was set up, on the instructions of Mr. Landreville I agreed with the present Minister of Justice that I would not raise any constitutional argument before you, sir, and I do not raise that question.

 

71     In my view, if there was no constitutional power in the Governor in Council to initiate this inquiry, then the plaintiff’s consent or request for it, and the agreement not to object to it, cannot cure the defect.

 

72     I turn now to the second main submission by the plaintiff. It is first necessary to set out in more detail the facts surrounding the share transaction between NONG and the plaintiff. For that purpose I shall rely almost exclusively on the evidence referred to in the Commissioner’s report.

 

73     In 1954 and 1955 the route of the TransCanada PipeLine Company and the distribution from the line to various communities in Northern Ontario became a matter of concern and interest. It appeared that only one company, or agency, rather than several, would handle that distribution. NONG had been incorporated with that purpose in mind. It was very much in the running. It put forward considerable effort endeavouring to obtain franchises from various communities including Sudbury.

 

74     As recounted, the plaintiff was, in 1955 and 1956, the mayor. NONG, chiefly through Farris, presented submissions for the Sudbury franchise. Over the course of those dealings, the plaintiff and Farris had, after perhaps an initial coolness, come to like each other. By the spring of 1956, most of the other franchises had been granted. Sudbury began to take action. A by-law, approving the franchise, had to be passed by Council. On May 22, 1956, first and second reading of the by-law were given. There remained third reading, the  approval of the terms of the franchise, and a certificate of convenience and necessity by the Ontario Fuel Board. The latter was a foregone conclusion.

 

75     On July 17, 1956, Council gave, by a vote of 7 to 3, third reading to the by-law. The plaintiff, as was the general practice, did not vote. The agreement conferring the franchise was signed by the City the next day. It was returned on July 20 executed by NONG. The Fuel Board, at a later date, issued the necessary certificate. The plaintiff felt that the Board had in substance approved the franchise on June 21.

 

76     The plaintiff testified, at the Commission, that in a friendly talk with Farris, he pointed out his term as mayor would end in 1956. He indicated interest in doing NONG’s legal work after that. He said he also indicated a desire to purchase some shares in NONG[FN19] . A key issue at the Commission hearing was the date of this discussion with Farris. Before Commissioner Rand the plaintiff felt it likely occurred on July 17, 1956, in the evening, after the Council meeting. That was the meeting where the by-law passed third reading. In testimony by the plaintiff in the previous proceedings referred to (the Ontario Securities Commission, the Farris preliminary and the Farris trial), he had thought the conversation had occurred sometime in the first two weeks of July. That earlier evidence, vague, if not inconsistent, was put to  the plaintiff at the Commission.

 

77     In any event, a letter, dated July 20, 1956, was sent by NONG to the plaintiff. Among other things, it referred to the plaintiff’s interest in assisting the company in some capacity in the future. It referred to his desire to purchase stock. It went on to say there had been a change in the capital of the company. Shares had been split five for one; existing shareholders had been given the right to subscribe for a limited number of shares at $2.50 per share.

 

At the same time it was resolved to offer you 10,000 shares at the same price of $2.50 per share. This offer is firm until July 18th, 1957. Should you wish to purchase portions of these shares at different times, that will be in order.

 

78     On July 30, 1956, the plaintiff wrote in reply. He said in part:

 

I fully appreciate the advantages of the offer you outline to me and I fully intend to exercise this option before July 18th, 1957.

 

79     On September 19, 1956, the plaintiff wrote Farris as follows:

 

Mr. Ralph K. Farris, President, Northern Ontario Natural Gas Co. Ltd., 44 King  Street, W., Suite 2308, TORONTO, Ontario.

 

My dear Ralph:

 

On the early morning of Tuesday following our meeting in North Bay, I was in conversation with the Minister of Justice and some other high official. I made my decision — I accepted.

 

After the dilemma of whether to have my appendix out or not, the dilemma of remaining a bachelor and happy or get married — this was the biggest dilemma! I feel that given three or four years and with my ambition, I would have squeezed you out of the Presidency of your Company — now I have chosen to be put on the shelf of this all-inspiring, [sic] unapproachable, staid class of people called Judges — what a decision! However, right or wrong, I will stick to it and do the best I can.

 

I want to assure you that my interest in your Company, outwardly aloof, will, nevertheless, remain active. I am keeping your letter of July 20th carefully in my file.[FN20]

 

Sincerely,

 

LAL:lmg   Leo

 

80     There was a discussion between Farris and the plaintiff later in the fall of 1956, some time after the plaintiff’s swearing in as a judge. Farris asked the plaintiff whether he still wanted the shares. The plaintiff replied that he did.

 

81     The plaintiff himself did nothing further until some time in 1957. He said he received a phone call from someone about the shares. The substance of it was that the shares were then trading for approximately $10.00; 2500 of the shares were to be sold to pay off the total number of 10,000. This meant, of course, the plaintiff never actually paid money. The Commissioner dealt at considerable length with the evidence as to the identity of the person who telephoned the plaintiff. The latter had always been adamant in the prior proceedings, and again at the Commission, that the caller was not Farris. The Commissioner decided that it was Farris.

 

82     On February 12, 1957, Continental Investment Corporation Ltd., a broker, wrote the plaintiff as follows:

 

Vancouver, B.C.

 

February 12, 1957

 

Mr. Justice L.A. Landreville,

 

Osgoode Hall,

 

Toronto, Ontario.

 

Dear Sir:

 

Some time ago, we were instructed by Mr. R. K. Farris to purchase for your account, 10,000 shares of Northern Ontario Natural Gas Company Limited at $2.50 per share. We have as of this date sold 2,500 shares for your account at $10.00 per share which clears off the debit balance in your account.

 

You will find enclosed 7,500 shares of Northern Ontario Natural Gas Company Limited with stock receipt attached, which we ask you to sign and return to this office at your convenience.

 

Yours truly,

 

Continental Investment

Corporation Ltd.

 

JM:AH   John McGraw

 

83     The plaintiff replied on February 16, 1957:

 

Osgoode Hall

 

Toronto 1.

 

Feb. 16th, 1957

 

Continental Investment Corporation,

 

Vancouver, B.C.

 

Dear Sirs:

 

Re: Northern Ontario Natural Gas Co.

 

I have received yours of the 12th with Stock Certificates enclosed for which I thank you. I am enclosing receipt for same.

 

Should I be of any assistance to your firm for the promotion and betterment of this company in Ontario, please do not hesitate to contact me.

 

Sincerely,

 

L.A. Landreville

 

84     The 7,500 shares were later sold, in blocks of various sizes. The plaintiff realized a profit of $117,000.

 

85     I go now to the Commissioner’s report.

 

86     In the first 68 pages the Commissioner reviewed the history of pipe line development, the involvement of the City of Sudbury and the plaintiff, and the latter’s dealings with NONG. In respect of those dealings and the receipt of  the shares, he canvassed in detail the evidence the plaintiff had given in the three previous proceedings, and the evidence he gave at the Commission.

 

87     The Commissioner characterized the shares as a gift. He did not accept the contention that the correspondence of July 20, and July 30, 1956 amounted to an option, if not legally enforceable, perhaps morally enforceable. I quote from pages 68-69:

 

Arising out of the distribution of the 14,000 shares, prosecutions were launched against the mayors of four municipalities by which franchises had been granted: Sudbury, Orillia, Gravenhurst and Bracebridge. The offences charged were the same: in substance that NONG stock received by the mayors had been corruptly bargained for and that each, for the promise of reward, had used his influence to assist NONG in obtaining a franchise from his municipality. In three of them the information was dismissed on the ground of insufficient evidence to justify committing the accused to trial; in the fourth, that of Orillia, the accused was acquitted in a county court jury trial. Following these, a public statement was issued by the Attorney General that in the circumstances no Bill of Indictment would be preferred by him before a Grand Jury in any of the three cases of dismissal.

 

To the Province there has been committed by Section 92 of the British North America Act exclusive jurisdiction over the administration of justice. The courts here concerned are provincial courts although judges of the Supreme and County Courts are appointed by the Dominion Government. Such a charge levelled against a Judge of the Supreme Court of Ontario becomes obviously a matter of primary provincial interest; and in the case of Justice Landreville, it was to vindicate that as well as the general interest in municipal government, and the enforcement of the criminal law, also provincial matters, that the prosecution was brought. This formal action of the provincial authorities creates a situation where their judgment arrived at by a consideration of all the circumstances, must be accorded a respectful recognition by this Commission. That means that an originally corrupt agreement between Farris and Justice Landreville to bargain shares for influence is not to be found to be established; the presumption arises that there was no such agreement. Such a matter is a question of a state of mind; the external facts are before us; what is hidden is the accompanying understanding; and it is proper for this Commission to assume that the facts disclosed do not satisfy the requirements of our criminal law that that understanding, beyond a reasonable doubt, was corrupt.

 

This leads us first to the consideration of a conclusion from these external  facts which is consistent with that assumption; and secondly, whether what took place in relation to those facts has infringed any other law or has violated an essential requirement of that standard of conduct which is to be observed by a member of the Supreme Court of a province.

 

To these considerations personal relations become significant.

 

88     The Commissioner, for the next several pages, then set out the plaintiff’s personal history prior to his first association with Farris. I think it fair to comment that it does not appear to have been recorded in a completely objective way. Purely as one example, I quote these two sentences:

 

His emotions are active and he can be highly expansive; he is fascinated by the glitter of success and material well-being. His outlook is indicated by a residence in Mexico, as well as a lodge some miles from Sudbury.

 

89     The remainder of the report to page 98, is, as I read it, the basis for the Commissioner’s second and third conclusions.

 

90     Counsel for the plaintiff contends the Commissioner, in inquiring into, and expressing findings and opinions on, the matters set out from pages 69 to  98, exceeded his terms of reference; he therefore exceeded or lost jurisdiction; the plaintiff is entitled to a declaration accordingly.

 

91     It is necessary at this stage, in order to fully appreciate the contention on behalf of the plaintiff, to set out the formal conclusions of the Commissioner. These appear on pages 107 to 108:

 

Drawn from the foregoing facts and considerations, the following conclusions have been reached: I — The stock transaction between Justice Landreville and Ralph K. Farris, effecting the acquisition of 7,500 shares in Northern Ontario Natural Gas Company, Limited, for which no valid consideration was given, notwithstanding the result of the preliminary inquiry into charges laid against Justice Landreville, justifiably gives rise to grave suspicion of impropriety. In that situation it is the opinion of the undersigned that it was obligatory on Justice Landreville to remove that suspicion and satisfactorily to establish his innocence, which he has not done. II — That in the subsequent investigation into the stock transaction before the Securities Commission of Ontario in 1962, and the direct and incidental dealing with it in the proceedings brought against Ralph K. Farris for perjury in 1963 and 1964 in which Justice Landreville was a Crown witness, the conduct of Justice Landreville in giving evidence constituted a gross contempt of these tribunals and a serious violation of his personal duty as a Justice of the Supreme Court of Ontario, which has permanently impaired his usefulness as a Judge. III — That a fortiori the conduct of Justice Landreville, from the effective dealing, in the spring of 1956, with the proposal of a franchise for supplying natural gas to the City of Sudbury to the completion of the share transaction in February 1957, including the proceedings in 1962, 1963 and 1964, mentioned, treated as a single body of action, the concluding portion of which, trailing odours of scandal arising from its initiation and consummated while he was a Judge of the Supreme Court of Ontario, drawing upon himself the onus of establishing satisfactorily his innocence, which he has failed to do, was a dereliction of both his duty as a public official and his personal duty as a Judge, a breach of that standard of conduct obligatory upon him, which has permanently impaired his usefulness as a Judge. In all three respects, Justice Landreville has proven himself unfit for the proper exercise of his judicial functions.

 

92     I do not think anything is to be gained by reviewing or setting out the impugned matters found at pages 69 to 98, or the Commissioner’s comments and opinions. It is not for me to decide whether the evidence or materials referred to by the Commissioner on this aspect of the matter were relevant, cogent or trustworthy. Nor is it for me to decide whether the comments of the  Commissioner, on what amounted to the personality and credibility of the plaintiff, were justified or valid. Opinions may well differ. I am only concerned with deciding whether the kind of findings set out in conclusions II and III were reasonably within the terms of reference set out in the Letters Patent.

 

93     In my opinion, what I have set out as (b)(ii) of the terms of reference are wide enough to embrace the portions of the Report and the conclusions attacked by the plaintiff. That portion of the term of reference is:

 

(b) to advise whether, in the opinion of the Commissioner:

 

(ii) whether the Honourable Mr. Justice Landreville has by such dealings [with NONG or its officers or in its shares] proved himself unfit for the proper exercise of his judicial duties.

 

94     As I see it, the credibility of the plaintiff was an issue. In conclusion II the Commissioner chose to find that the plaintiff’s conduct in giving evidence before the Securities Commission and in the proceedings against Farris, constituted a gross contempt of those tribunals. It is true the Commissioner had before him only the transcript of the evidence given by the  plaintiff in those proceedings. He did not have before him the testimony given by other witnesses. Nevertheless, it is my view the question of credibility was within the terms of reference. The quarrel is really with how the Commissioner dealt with the issue, and the facts or matters he chose to rely on. I do not think his method of dealing with the question, though others might have done differently, amounted to going beyond the terms of the reference, and so losing jurisdiction.

 

95     I now turn to the final main submission on behalf of the plaintiff.

 

96     Section 13 of the Inquiries Act is as follows:

 

13. No report shall be made against any person until reasonable notice has been given to him of the charge of misconduct alleged against him and he has been allowed full opportunity to be heard in person or by counsel.

 

97     The plaintiff argues the Commissioner did not comply with this section. It is said there is nothing in the terms of reference, nor was there any indication at the hearing, that any allegation would be made against the plaintiff, in respect of previous testimony; that it would be alleged his conduct before those tribunals in giving evidence

 

…constituted a gross contempt … and a serious violation of his personal duty as a Justice …, which has permanently impaired his usefulness as a Judge.

 

98     It is further said the matters referred to in conclusion III, incorporating as it does the assertions in conclusion II, do not reasonably appear in the terms of reference; no notice was given to the plaintiff either before or during the hearing there would be those allegations of misconduct.

 

99     I digress somewhat to set out the procedure at the Commission hearings. [FN21] It was agreed that any witnesses called, including any requested on behalf of the plaintiff, and including the plaintiff, would be examined in chief by Commission counsel. The plaintiff’s counsel, Mr. Robinette, would have the right to cross-examine last. Mr. Robinette would be permitted to present argument at the conclusion.

 

100     On the last day of the hearings, Commission counsel made his submissions. Mr. Robinette followed with his. Commission counsel then said (pages 1329-30):

 

Mr. Chairman, we have now reached a point where we can adjourn.

 

101     After some formal remarks by Commission counsel thanking various persons for their help, he said:

 

With that, sir, I suggest that we adjourn sine die.

 

102     The Commissioner, shortly after, said:

 

The Hearing is adjourned sine die.

 

103     Counsel for the plaintiff submits that in the circumstances here the provisions of section 13 became mandatory and ought to have been followed. The contention runs this way. When the Commissioner reached his decision (as he obviously at some stage did before actually signing his written report) to assert or allege that the plaintiff’s conduct in giving his evidence before other tribunals amounted to misconduct or misbehaviour in office, the Commission should then have been reconvened, and notice of the “charge” of misconduct given; the plaintiff should then have been allowed to call witnesses, if he wished, to answer the so-called charges and to make his defence, either personally or by counsel, to them; instead, the first notice  the plaintiff had was the publication of the Commissioner’s report.

 

104     Counsel for the plaintiff asserts there is nothing in the terms of reference, nor was there anything throughout the hearing, that indicated allegations of misconduct as set out in conclusions II and III would be levelled or considered. It is further asserted that if the plaintiff and his legal representative had known these allegations were going to be made by someone or by the Commissioner, they could well have sought evidence to answer the “charges”. It is not, as I see it, unreasonable to surmise the plaintiff and his advisers might have considered, in respect of allegations of gross contempt, calling as witnesses the officials of the Securities Commission, and perhaps those presiding over the Farris cases to canvass their opinions as to whether the conduct of the plaintiff in those proceedings was gross contempt.

 

105     I agree with the plaintiff that the assertion of gross contempt was a very serious one. The Commissioner said at pages 94 and 95:

 

The unpleasantness of the matter investigated cannot be allowed to minimize its derogatory character. There was conscious contempt before all three tribunals; it may or may not have passed the borders of criminality; but to confuse, to raise doubts by the juxtaposition of contrived and emphatic assertion and  nullifying qualifications and reservations, is not to be distinguished in effect from deliberate falsity.

 

106     I translate that as a finding of perjury.

 

107     Counsel for the defendant maintains the allegations or charges are set out in the Order in Council and Letters Patent; they are the notice of the charges of misconduct alleged; the impugned conclusions obviously and reasonably arose out of charges set out in the terms of reference.

 

108     I do not agree that the matter of gross contempt of the other tribunals can be said to be included, by implication or necessary intendment, in the terms of reference.

 

109     This was a somewhat unusual Royal Commission. The majority of Royal Commissions seem to be constituted to investigate a particular subject, thing or state of affairs. Rarely do they relate to one person. This Commission was, however, directed to the investigation of one particular person and his dealings with a certain company, its officers, or its shares. The Commissioner was requested to inquire into those dealings and to express an opinion whether, in the course of them, there had been misbehaviour by the plaintiff as a judge,  or whether the plaintiff, by the dealings, had proved himself unfit. I am unable to see how those general terms indicated to the plaintiff there would, or might be, an allegation of gross contempt of certain tribunals, amounting to misconduct.

 

110     No authority was cited to me, in respect of the application of section 13, which was closely in point. Reference was made to Crabbe v. Minister of Transport[FN22] . I agree the facts of that case are readily distinguishable; so too, the relevant statutory provisions and rules. There is, nevertheless, some similarity. In my opinion the case is helpful.

 

111     There, a court of investigation was appointed, pursuant to the Canada Shipping Act, to investigate a collision between two large vessels. The statute and the Shipping Casualties Rules governed the procedure at the investigation.

 

112     All of the parties concerned, including some of the officers and the pilots of the two vessels, were served, prior to the commencement of the investigation, with a “statement of the case”. That document contained 15 questions. The first fourteen covered somewhat formal and technical matters. The last question read [at page 865]:

 

Was the collision caused or contributed to by the wrongful act or default by any person or persons and if so what were those wrongful acts or defaults and by whom were they committed.

 

The Department of Transport had conduct of the proceedings. The Shipping Casualties Rules (Rule 17) provided that when the examination of witnesses, called on behalf of the Department of Transport, had been concluded, and after cross-examination of those witnesses by interested parties, the Department should then state

 

…in open Court the questions concerning the casualty, and the conduct of the certificated officers … upon which the opinion of the Court is desired.

 

113     In the Crabbe case, the Department of Transport contended that the statement of the case, containing as it did, the question earlier set out, complied with the provisions of Rule 17; that nothing beyond the reading of the questions was required. Counsel for Captain Crabbe submitted that merely reading the questions was insufficient; the particular things alleged against Captain Crabbe or other officers (the charges) should then be set out; the particular officer or officers against whom allegations were made would then have the opportunity to call evidence and make submissions.

 

114     The Federal Court of Appeal upheld the contention of counsel for Captain Crabbe.

 

115     In my opinion, similar reasoning applies in this case. I agree with the plaintiff’s position that in the circumstances here, the Commission should have been reconvened. The substance of the proposed allegations of misconduct set out in conclusions II and III should have been made known to the plaintiff in accordance with section 13. The plaintiff should then have been given the opportunity to meet those specific charges.

 

116     I therefore hold, with diffidence, that the Commissioner failed to comply with the mandatory requirements of section 13 of the Inquiries Act.

 

117     I have come slowly to that conclusion. The Commissioner was an eminent and renowned judge of the Supreme Court of Canada.

 

Ivan Cleveland Rand was appointed to the Supreme Court of Canada on April 22nd, 1943 in his fifty-ninth year. It would be more accurate to say that he was drafted into the court. His reputation as a man of principle, an independent thinker, and an outstanding lawyer, had preceded him to Ottawa. Rand’s  appointment to the court, like the universal respect which he enjoyed, had commanded itself.

 

. . . . .

 

The Honourable, J.R. Cartwright, eloquently summarized Rand’s judicial career in observing that “his record offered a fair promise which, in the sixteen years that he occupied the Bench, was gloriously fulfilled”. Rand established himself securely in the minds of many as the greatest judge who ever graced that bench, although others would concede that position to the former Chief Justice, Sir Lyman Duff. Without doubt, they are the two most eminent judges Canada has yet produced.[FN23]

 

118     As a mere trial bench judge, I feel some reluctance in concluding that this distinguished Commissioner omitted to comply with one of the terms of the statute governing his inquiry; that this was error in law. But my function cannot be affected by diffidence or reluctance. I am required to apply the law, as I conceive it to be, to the issues between the parties to this suit.

 

119     There remain two final matters of defence.

 

120     The first is laches. The plaintiff, it is said, has slept too long on his rights. The report issued on August 11, 1966; he ought then to have attacked the inquiry, even before the Joint Committee of the Senate and House was appointed; the present litigation was not commenced until August 4, 1972; the delay or lapse of time is substantial.

 

121     Snell’s Principles of Equity has this to say on laches[FN24] :

 

Laches essentially consists of a substantial lapse of time coupled with the existence of circumstances which make it inequitable to enforce the claim. Delay will accordingly be fatal to a claim for equitable relief if it is evidence of an agreement by the plaintiff to abandon or release his right, or if it has resulted in the destruction or loss of evidence by which the claim might have been rebutted, or if the claim is to a business (for the plaintiff should not be allowed to wait and see if it prospers), or if the plaintiff has so acted as to induce the defendant to alter his position on the reasonable faith that the claim has been released or abandoned. But apart from such circumstances delay will be immaterial.

 

On the facts before me, I see nothing which makes it inequitable that the plaintiff’s claim be enforced. None of the “fatal” circumstances described in Snell are present here. The defendant (for practical purposes, the plaintiff’s fellow-citizens) has not been induced to alter any position. I see no compelling or equitable reason to invoke the defence of laches.

 

122     The defendant says, finally, the Court should not, in the exercise of its discretion make any declaration of any kind in favour of the plaintiff. All the surrounding circumstances are pointed to: the affair is now old; the plaintiff has long since resigned from the bench; the matter is, in a practical sense, academic; there has been long delay. I agree the Court has, in the circumstances, a discretion to grant or not grant a declaration. I do not see any equitable, legal, or moral reason to exercise my discretion against the plaintiff. As Pratte J. said:

 

…the Court has the jurisdiction to make a declaration which, though devoid of any legal effect, would, from a practical point of view, serve some useful purpose.

 

123     One useful purpose, to my mind, and assuming my decision in respect of section 13 of the Inquiries Act to be correct, is that it will be a matter of public record that the plaintiff did not, at the commission hearing, have full opportunity to refute the allegation or finding he had committed, as a judge,  gross contempt in his testimony before certain tribunals.

 

124     It is a matter of record that the plaintiff is pursuing, in this Court, another action against the defendant. It was commenced on the same date as this suit. In that litigation the plaintiff seeks, among alternative relief claims, a declaration that he is entitled to a pension from June 30, 1967, the date of his resignation as a judge. The amount of pension sought is based on the relevant provisions of the Judges Act. It may be that the declaration I find he is here entitled to will serve some useful purpose in the prosecution of that other suit.

 

125     The plaintiff will have a declaration limited to the section 13 issue. He will also recover the costs of this action.

 

126     I request counsel for the plaintiff to draw a draft judgment giving effect to these reasons, and to submit it to counsel for the defendant. If counsel cannot agree on the terms, I shall hear submissions.

 

Solicitors of record:

 

Gowling & Henderson, Ottawa, for plaintiff.

Deputy Attorney General of Canada for defendant.

 

FN1. The appointment was by Order in Council passed pursuant to section 96 of The British North America Act, 1867. The plaintiff was appointed a member of the High Court of Justice for Ontario, and ex officio a member of the Court of Appeal for Ontario.

 

FN2. R.S.C. 1952, c. 154. The Letters Patent (Ex. 28) were issued March 2, 1966.

 

FN3. I have quoted almost exactly the terms of reference but have sub-numbered them for convenience and clarity.

 

FN4. [1973] F.C. 1223.

 

FN5. [1964] 1 All E.R. 717.

 

FN6. Exhibit 169 at the Rand Commission.

 

FN7. The Law Society report concluded:

 

2. That the Secretary of the Society be authorized and directed forthwith to forward a certified copy of this report to the Honourable the Minister of Justice and Attorney General of Canada, the Honourable the Chief Justice of Ontario, the Honourable the Chief Justice of the High Court, the Honourable Mr. Justice Landreville, and the Attorney General for the Province of Ontario.

 

3. That the Treasurer of the Society be authorized to issue copies of this report to the press at such time thereafter as he may in his discretion deem fit.

 

FN8. The Commissioner stated on page 95: It is perhaps unnecessary to say that the resolution of the Benchers of the Law Society of Upper Canada submitted to the Minister of Justice has played no part whatever in arriving at the conclusions of fact set out in this report. Its only relevance is that that governing body has seen fit to seek an inquiry into matters for several years the subject of wide public concern: no challenge to the propriety of such a request from a body having such an interest in the administration of Justice has been or could be made. A copy of that resolution is annexed as Appendix A of this report.

 

FN9. Q. 253-254 of the plaintiff’s examination for discovery.

 

FN10. R.S.C. 1952, c. 154.

 

FN11. The plaintiff pointed out that The British North America Act, 1867 provides for the appointment and removal of superior court judges by the Governor General, not the Governor in Council (the cabinet). The Inquiries Act authorizes only the Governor in Council to cause inquiries to be held.

 

FN12. See Todd on Parliamentary Government in England (1889) Vol. II, pp. 853-880, particularly at 858-859.

 

FN13. (1956) 34 Canadian Bar Review 769, continued at 1139.

 

FN14. 34 Canadian Bar Review pp. 785-788.

 

FN15. Todd, p. 873.

 

FN16. R.S.C. 1952, c. 159. Sections 31 and 32 of the present Judges Act go even further. The Canadian Judicial Council is empowered to hold an inquiry as to whether a judge has become incapacitated or disabled, not only by reason of age or infirmity, but by reason of misconduct, etc. The Council can recommend  the judge be removed from office and his salary stopped. If the Cabinet then finds the judge to have become incapacitated or disabled, the judge’s salary is stopped. In this note, I have not overlooked section 32.2 of the present legislation.

 

FN17. [1973] S.C.R. 313 at 346.

 

FN18. The Munsinger affair, the Spencer affair, the Dorion Inquiry — to name a few.

 

FN19. I have generally summarized this evidence. The Commissioner went into detail.

 

FN20. The underlining was added by Commissioner Rand.

 

FN21. The Agenda was put in as Exhibit 29.

 

FN22. [1972] F.C. 863.

 

FN23. “Mr. Justice Rand — A Triumph of Principle”, by E. Marshall Pollock (1975) 53 Canadian Bar Review 519, and 522.

 

FN24. 27th ed. (1973) p. 35.