Morier and Boily v. Rivard

Chouinard J.‑‑Respondent, a practising lawyer for over twenty years, alleges that his conduct was censured in a report by the Commission de police to the Attorney General of Quebec. This report was titled [TRANSLATION] "Crime in certain business circles in Québec".

Following the publication of this report respondent brought a twofold action against appellants, additional members of the Commission and signatories of the report, and the Commission itself.

Respondent's two actions were joined in one. In the first, in the form of a direct action in nullity based on art. 33 C.C.P., respondent asked that the report in question be declared null and void together with any evidence obtained in preparing it. Alternatively, he asked that the Court declare null and void the part of the report which mentions him and any evidence relating to the bankruptcy of Terreau & Racine Ltée.

In the second action, respondent asked that the Commission and appellants be jointly and severally ordered to pay him the sum of $250,000 as exemplary damages, in accordance with s. 49 of the Charter of human rights and freedoms, R.S.Q., c. C‑12. Section 49 provides:

49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to exemplary damages.

Inter alia, respondent charged appellants with using in their report evidence obtained in a previous inquiry at which appellant Boily was present, but not appellant Morier. Respondent further alleged that appellants did not inform him of the facts alleged against him or permit him to be heard on the subject. Respondent was called as a witness at the initial inquiry, but was never informed as required by s. 34.3 of the Police Act, R.S.Q., c. P‑13:

34.3 The Commission shall not, in its reports, censure the conduct of a person or recommend that punitive action be taken against him unless it has informed him of the facts alleged against him and has permitted him to be heard on that subject.

That obligation ceases if that person has been invited to appear before the Commission within a reasonable time and he has refused or neglected to do so. That invitation shall be served in the same manner as a summons under the Code of Civil Procedure.

The respondent alleged many other facts. The principal allegations of his statement of claim are as follows:

[TRANSLATION]

4. As will be explained below, defendants acted without jurisdiction and/or exceeded the jurisdiction they claimed to have, in particular in that:

4.1 they contravened the Act and the audi alteram partem rule of natural justice;

4.2 defendants failed to comply with s. 34.3 of the Police Act where plaintiff is concerned;

4.3 defendants acted in a discriminatory manner toward plaintiff;

4.4 defendants contravened the provisions of the Charter of human rights and freedoms;

4.5 defendant Gilbert Morier could not sign the report relating to plaintiff and Terreau & Racine Ltée, since he did not hear the evidence;

4.6 the quorum of two in the matter of Terreau & Racine Ltée, as required by the Act, was not observed by defendant Gilbert Morier;

4.7 defendants knowingly committed a fraud on the law;

...

23. As appears from the said report (P‑9), one full section is devoted to the matter of the bankruptcy of Terreau & Racine Ltée, and plaintiff's name is mentioned several times;

24. Additionally, the said report of November 27, 1980 (P‑9), following the second inquiry, contains quotations from the testimony of plaintiff at the first inquiry before a different panel, especially in the portion dealing with the matter of Terreau & Racine Ltée;

25. This being so, as plaintiff did not testify on this matter before the panel presided over by Gilbert Morier J., plaintiff's testimony on the matter of the bankruptcy of Terreau & Racine Ltée was evidence aliunde and hearsay;

26. Plaintiff was very harshly censured by the Commission and by its members Gilbert Morier and Raymond Boily, both in the report and in the recommendations;

27. Contrary to the rules of natural justice and the Charter of human rights and freedoms, and s. 34 of the Police Act, plaintiff has never been heard and has never been given an opportunity to be heard on the matter of the bankruptcy of Terreau & Racine Ltée by the panel consisting of Morier and Boily JJ.;

28. Without limiting the generality of the foregoing, Morier and Boily JJ., in their report of November 27, 1980 (P‑9), censured plaintiff without informing him of the facts alleged against him and without inviting him to be heard on the subject, contrary to s. 34.3 of the Police Act...

...

31.4 Defendants exceeded their mandate by making the arousing of public opinion their objective, whereas their mandate was limited to submitting a report to the Attorney General, as can be seen from the following extracts from the said report:

p. 2 "The significance of an inquiry such as the one we have conducted appears in the Act: informing the Government by a report on any aspect of crime and also arousing public opinion concerning the misdeeds of organized crime."

p. 3 "We have chosen in our report to set forth all the salient facts presented to us, without limitation, in order to inform the Attorney General and the public as fully as possible, in the hope that the appropriate legal action will thus be taken more quickly."

...

31.10 In doing so, defendants were seriously remiss in their duty to act fairly, by their unfair, wrongful, discriminatory and inequitable treatment of plaintiff, since as will be demonstrated at the hearing the notices required by s. 34.3 were sent to other persons who were called to testify at the inquiry held pursuant to Order in Council 3458‑79 (P‑4);

These allegations were made in support of both the action to quash the report and the evidence obtained and the action for damages.

However, the appeal relates only to the latter action. Additionally, the Commission de police, which was also a defendant in the action for damages, is not a party to the appeal.

This is explained by the fact that, before responding to the action, each of the appellants filed a motion to dismiss, citing the immunity conferred by s. 22 of the Police Act:

22. For the purposes of an inquiry held by it under this act or any other act, the Commission, each of its members and every person authorized by it to make an inquiry are vested with the powers and immunity of a commissioner appointed under the Act respecting public inquiry commissions (chapter C‑37).

Section 16 of the Act respecting public inquiry commissions, R.S.Q., c. C‑37, provides:

16. The Commissioners shall have the same protection and privileges as are conferred upon judges of the Superior Court, for any act done or omitted in the execution of their duty.

Judgments of Superior Court and Court of Appeal

The Superior Court judge found that appellants had absolute immunity and allowed the motions to dismiss, dismissed respondent's action for damages against appellants and found that the relevant paragraphs of the allegations and conclusions of the statement of claim could not be set up against appellants.

In a unanimous judgment, Rivard v. Morier, [1983] C.A. 334, the Court of Appeal reversed the Superior Court and dismissed the motions to dismiss on the following grounds (at p. 335):

[TRANSLATION] The immunity of superior court judges is not defined by law. Judicial attitudes to its scope have evolved: see Sirros v. Moore, [1975] Q.B. 118 (U.K.) The immunity does not seem to be absolute but to depend largely on the ultra vires of the act committed by the judge and on the knowledge which he has that he lacked jurisdiction.

It is difficult to assess the concepts of jurisdiction and knowledge in the abstract: it is usually preferable to look at the exact circumstances of a case before arriving at a decision.

This is so in the case at bar: appellant alleged that respondents began an inquiry without publishing notices and that they censured his conduct without giving him an opportunity to defend himself, contrary to the specific provisions of the Act under which they held their mandate.

The evidence presented of these allegations will be more or less circumstantial. If certain circumstances were proven, a judge could conclude that the immunity enjoyed by respondents was not a bar to appellant's action.

At this stage of the proceedings, appellant should be given the benefit of the doubt.

In short, I am unable to conclude that the allegations of appellant's action do not establish a right against respondents.

Position of Appellants

According to appellants, the question presented by the appeal is the following: [TRANSLATION] "Is the immunity of superior court judges absolute?"

They summarized their position as follows:

[TRANSLATION] Appellants answer this question in the affirmative and submit that:

A [Commissioners] enjoy the immunity of superior court judges;

B The immunity of superior court judges is absolute;

C As the immunity of the [commissioners] is absolute, any action for damages based on an unlawful invasion of a personal right is inadmissible in law.

Position of Attorney General of Quebec

The mis en cause Attorney General of Quebec intervened in support of appellants.

His submission dealt with the following two points:

[TRANSLATION]

1. For which acts do commissioners appointed under the Police Act (R.S.Q., c. P‑13) enjoy the immunity of superior court judges?

2. Is the immunity of superior court judges from civil suit absolute?

The Attorney General submitted that:

[TRANSLATION]

1. Commissioners appointed under the Police Act (R.S.Q., c. P‑13) enjoy the same immunity as superior court judges for any act relating to the performance of their inquiry functions;

2. the immunity of superior court judges from civil suit is absolute;

3. the action against appellants for damages is inadmissible in law.

Position of Respondent

Respondent placed the discussion on a completely different level. He stated the points at issue as follows:

[TRANSLATION] In their submission, appellants discussed the point at issue as being concerned with the absolute or relative nature of the immunity of superior court judges from an action at law.

Respondent submits that the point at issue is not as presented by appellants. The Commission de police du Québec is not a superior court of record, it is simply an administrative body, and persons acting as members of that body have the status of public officers, not judges. The immunity of superior court judges is an abstract matter governed by rules fixed by the common law of the United Kingdom, which do not differ in Canada and Quebec (H. Patrick Glenn, La responsabilité des juges, (1983) 28 McGill L.J. 228). The action at bar in nullity and for exemplary damages is brought in particular against appellants Morier and Boily in their capacity as public officers or members of the Commission de police, and not as superior court judges.

The position of respondent Rivard is that the case at bar is essentially a question of the personal liability of public officers who are members of an administrative body, and raises the question of the interpretation of Quebec statutes which amend the common law on the personal liability of public officers, by conferring on them, in certain circumstances and for certain purposes, the powers and immunities of a superior court judge. In particular, the question is whether appellants Morier and Boily, conducting an inquiry and preparing a report as members of the Commission de police, enjoy the immunities of a superior court judge for all legal purposes and throughout the duration of their mandate, including the making of such statements and censures as they may include in the report of the inquiry, which they submit to the Attorney General and which is then published and broadcast.

In respondent's submission, the case is not concerned with the nature of the immunity of superior court judges, but its scope, in light of the interpretation that must be given to Quebec statutes when they extend that immunity and those powers in part to public officers with differing status and training.

Respondent stated two propositions, which he then developed by dividing them into several sub‑propositions. The two propositions are as follows:

[TRANSLATION] 1. At common law, a public officer empowered to conduct an inquiry and make a report in accordance with the law is liable in tort, or for fault, like any person of full age and capacity, in particular for statements or conclusions contained in such a report and acts committed without authority or in breach of the law.

2. The laws of the Province of Quebec do not confer on the Commission de police du Québec, investigating certain aspects of crime, the attributes of a court of record at all stages of such inquiries; in submitting a report to the Attorney General, appellants acted as public officers and not by virtue of their powers as superior court judges, and they are accordingly not shielded by the special system of immunity enjoyed by superior court judges.

In support of his first proposition, respondent argued that:

[TRANSLATION] 1.1 At common law, a public officer enjoys no immunity in principle, and is fully liable in tort, or for fault, when he acts without authority or in breach of the law.

Respondent cited the following cases:

‑‑McGillivray v. Kimber (1915), 52 S.C.R. 146 (especially at p. 168, Duff J.);

‑‑Roncarelli v. Duplessis, [1959] S.C.R. 121 (especially at pp. 141‑42, Rand J.);

‑‑Chartier v. Attorney General of Quebec, [1979] 2 S.C.R. 474.

However, none of these cases dealt with the interpretation of legislation similar to that applicable in the case at bar.

Respondent further submitted that:

[TRANSLATION] 1.2 At common law, a public officer acting under the law ... benefited from the same immunities as judges of courts of record when he acted as a court and was vested with the attributes of a court of record.

Respondent went on:

[TRANSLATION] However, though vested with quasi‑judicial powers, administrative bodies are not on an equal footing with courts of record.

Respondent concluded this heading with the following:

[TRANSLATION] Despite these fundamental differences the courts have, for reasons of the public interest, extended the protection of the immunities enjoyed by judges of courts of record to members of administrative bodies, not in all circumstances or for all legal purposes, but only in certain specific situations, such as when they are performing the functions of a court of record under a statute, in short when they are acting as a court or acting by authority as does a court of record.

In support of these various statements, respondent cited several cases including Canadian Broadcasting Corporation v. Quebec Police Commission, [1979] 2 S.C.R. 618, and O’Connor v. Waldron, [1935] A.C. 76.

In the Canadian Broadcasting Corporation case, this Court held that the Commission de police did not have the power to punish someone for contempt of court not committed in its presence. The Court had to interpret s. 7 of the Public Inquiry Commission Act, which reads:

7. A majority of the commissioners must attend and preside at the hearing of witnesses, and they, or a majority of them, shall have, with respect to the proceedings upon the hearing, all the powers of a judge of the Superior Court in term.

Beetz J., speaking for the majority, wrote at pp. 642‑43:

However, the legislature did not intend to confer all the powers of a judge of the Superior Court on the Police Commission, only those concerning the procedure for the examination of witnesses.

That case concerned the powers of commissioners to examine witnesses, not their immunity for an act done or omitted in the course of their duties. In my view, it is not applicable in the case at bar.

In O’Connor v. Waldron, the Privy Council held that a commission conducting an inquiry under the Combines Investigation Act, R.S.C. 1927, c. 26, enjoyed no immunity against an action in tort on account of defamatory statements made during the inquiry. Section 22 of the Act conferred on the commissioners the powers of a superior court for the hearing of evidence, but once again there was no mention anywhere of an immunity, nor was there any such mention in the Inquiries Act, R.S.C. 1927, c. 99, applicable to combines investigations.

In his second proposition, respondent argued that in preparing their report appellants acted as public officers, and that they accordingly were not shielded by the immunity of superior court judges.

Respondent broke down this proposition into three parts:

[TRANSLATION]

‑‑The statutes of Quebec do not confer on the Commission de police du Québec in its investigation of certain aspects of crime the attributes of a court of record at all stages of such inquiries, and in particular that of filing their report.

‑‑Section 16 of the Police Act amends the common law by creating a general system of relative immunity only for the members and staff of the Commission de police, protecting all official acts from legal actions for damages.

‑‑Section 22 of the Police Act cannot be interpreted as conferring on appellants the special immunity of superior court judges at all stages of their inquiries, and in preparing a report appellants acted as ordinary public officers, not in the exercise of their special powers as superior court judges, and so are not shielded by the special immunity of superior court judges.

Respondent again referred to the common law. He cited O’Connor v. Waldron, supra, and the decision of the House of Lords in Trapp v. Mackie, [1979] 1 All E.R. 489.

In the latter case, Lord Diplock suggested four criteria for determining whether a body is sufficiently similar to a court of record for witnesses called to appear before it to enjoy an absolute immunity. At page 492, he wrote:

So, to decide whether a tribunal acts in a manner similar to courts of justice and thus is of such a kind as will attract absolute, as distinct from qualified, privilege for witnesses when they give testimony before it, one must consider first, under what authority the tribunal acts, secondly, the nature of the question into which it is its duty to inquire, thirdly, the procedure adopted by it in carrying out the inquiry and, fourthly, the legal consequences of the conclusion reached by the tribunal as a result of the inquiry.

Applying these criteria to the Commission de police conducting an inquiry into certain aspects of crime, as in the case at bar, respondent concluded that the Commission has only the first in common with courts of record, and that therefore the Commission and its members do not enjoy an absolute immunity.

However, it must be pointed out that no legislation corresponding to the provisions of the Police Act and the Act respecting public inquiry commissions was at issue in this decision by the House of Lords, which in my opinion does not apply in the case at bar.

The first statement made by respondent under his second proposition suggested that the Commission de police, when it is investigating crime, is clothed with the attributes of a court of record for the conduct of the inquiry only. It does not have such attributes in the presentation of its report. It is from this premise that respondent went on to make two further statements. Fundamentally, he argued, the Commission and its members enjoy the immunity of superior court judges for the examination of witnesses only, not in relation to the report.

Respondent argued that since in s. 22 of the Police Act the words "powers" and "immunity" are used together, when they are found in the Act respecting public inquiry commissions they must be subject to the same limiting interpretation. In Canadian Broadcasting Corporation v. Quebec Police Commission, supra, this Court held that the Public Inquiry Commission Act did not confer all the powers of a superior court judge on the Commission de police, only those relating to the proceedings for examining witnesses, and that therefore the Commission did not have the power to punish for contempt of court not committed in its presence. Similarly, respondent submitted, the Commission de police and its members only enjoy the immunity of superior court judges for proceedings relating to the examination of witnesses.

In my opinion, this conclusion is untenable in light of the applicable legislation. Only if it were correct would it be necessary to examine more closely the second and third statements made by respondent under his second proposition, and so this does not seem to be necessary.

Further, the arguments which respondent derived from the common law cannot be conclusive precisely because of the existence of legislation covering these matters, which must now be considered.

The Police Act and the Act Respecting Public Inquiry Commissions

One of the purposes of the Police Act is to create a Commission de police. This has various responsibilities, including the conducting of inquiries.

These are of three types:

[TRANSLATION]

‑‑inquiries into certain aspects of crime requested by the government, under section 20;

‑‑inquiries under the first two paragraphs of section 21, namely:

inquiries into the Sûreté du Québec, requested by the government;

inquiries into the conduct of a member of the Sûreté du Québec, requested by the Attorney General;

inquiries into a municipal police force, requested by the government or by the municipal council;

inquiries into the conduct of a member of a municipal police force, requested by the Attorney General or the municipal council;

inquiries into the conduct of a special constable, requested by the Attorney General, or the conduct of a special constable appointed by the mayor, requested by the municipal council;

inquiries into the Sûreté du Québec or a municipal police force, the conduct of a member of the Sûreté du Québec or a member of a municipal police force, or a special constable, initiated on its own motion or at the written request of a individual;

‑‑inquiries under paragraph 3 of section 21, namely:

inquiries into the conduct of any person acting as a peace officer in Quebec, at the request of the Attorney General, on its own motion or at the substantiated request of an individual.

The inquiry in the case at bar is of the first type.

Section 20 provides:

20. The Commission shall make an inquiry, whenever requested to do so by the Government, respecting any aspect of crime which it indicates.

The Commission shall also make an inquiry into the activities of an organization or system, its ramifications and the persons involved, to the extent prescribed by the Government, whenever it has reason to believe that in the fight against organized crime or terrorism and sub‑ version, it is in the public interest to order such an inquiry to be held.

I again reproduce s. 22:

22. For the purposes of an inquiry held by it under this act or any other act, the Commission, each of its members and every person authorized by it to make an inquiry are vested with the powers and immunity of a commissioner appointed under the Act respecting public inquiry commissions (chapter C‑37).

Section 35 requires the Commission to submit a written report to the Attorney General after each inquiry:

35. When an inquiry has been made in accordance with the preceding sections, the Commission shall make a written report of its findings to the Attorney General; when the inquiry has been made at the request of a municipality, notice of its conclusions must also be given to the municipality; if the inquiry has been made at the request of a citizen, the Commission may also inform him of its conclusions and notify the interested municipality if expedient.

It is also necessary to again reproduce ss. 7 and 16 of the Act respecting public inquiry commissions:

7. A majority of the commissioners must attend and preside at the hearing of witnesses, and they, or a majority of them, shall have, with respect to the proceedings upon the hearing, all the powers of a judge of the Superior Court in term.

16. The commissioners shall have the same protection and privileges as are conferred upon judges of the Superior Court, for any act done or omitted in the execution of their duty.

These provisions seem to be clear and unambiguous as regards the immunity of the Commission de police and of its members. The fact that "powers" and "immunity" are used together in s. 22 of the Police Act, which refers to the Act respecting public inquiry commissions, could not in any way influence the definition given of them in the latter Act. In it powers are defined in ss. 7 et seq. and immunity in s. 16.

The latter is quite clear. The immunity of commissioners is the same as that of superior court judges "for any act done or omitted in the execution of their duty".

In the context of the Act respecting public inquiry commissions, the phrase "in the execution of their duty" means a duty imposed by that Act.

The oath which commissioners are required by s. 2 to take indicates this expressly:

2. The commissioners so appointed shall, before acting, take the following oath of office before a judge of the Superior Court:

"I, A.B., do swear that I will exercise and perform the powers and duties vested in me by the provisions of the Act respecting public inquiry commissions (Revised Statutes of Québec, 1977, chapter C‑37), according to the best of my knowledge and judgment. So help me God."

The duties which this Act imposes are the holding of an inquiry and the making of a report on the results of the inquiry and the evidence presented. This is stated in ss. 1 and 6:

1. Whenever the Gouvernement deems it expedient to cause inquiry to be made into and concerning any matter connected with the good government of Québec, the conduct of any part of the public business, the administration of justice or any matter of importance relating to public health, or to the welfare of the population, it may, by a commission issued to that effect, appoint one or more commissioners by whom such inquiry shall be conducted.

6. The commissioners may, by all such lawful means as they may think best fitted to discover the truth, inquire into the matters referred to them for investigation.

As soon as the inquiry is completed, they shall report the result, with all evidence taken during the inquiry, to the Gouvernement, who shall order such action to be taken in the matter as shall be warranted by the evidence and report.

There are only 20 sections in this Act.

Section 3 provides for the appointment of a secretary and staff, and authorizes the commissioners to "incur such further expenses as may be necessary for the performance of their duties".

Under s. 4, it is the government that fixes the salaries of commissioners and staff.

Section 5 provides that, within a reasonable time after their appointment, commissioners shall hold meetings for the purposes of the inquiry, at the place where the necessary information is to be obtained. The section specifies the notices to be given and deals with adjournments.

Section 8 empowers the government to grant an indemnity to commissioners.

Section 9 deals with the summoning, appearance and swearing‑in of witnesses.

Sections 10 and 11 deal with the failure to appear or to testify and the resulting contempt of court, as well as the immunity of witnesses for their testimony before a commission.

Section 12 relates to a refusal to produce documents.

Section 13 covers the expenses of witnesses.

Section 14 authorizes certain officials to hold specific inquiries ex officio.

Section 15 is concerned with inquiries into the use of public monies.

Section 17 is the usual type of privative clause.

Section 18 provides that any person may obtain copies of the evidence.

Section 19 reserves to the government the power to fix the date on which the work of a commission and its report are to be completed and the limitation of costs.

Finally, s. 20, added in 1982, excludes the statute from the ambit of ss. 2 and 7‑15 of the Constitution Act, 1982 .

Similarly, the duties which the Police Act imposes on the Commission concerning inquiries involve the holding of an inquiry and making of a report. The relevant provisions are to be found in Subdivision 3, titled "Inquiries", of Division II, and are contained in ss. 20‑36. Sections 20 and 21, summarized above, each use the phrase "The commission shall make an inquiry ..."; and s. 35 expressly imposes on commissioners a duty to make a written report. It does not appear necessary to summarize here the other sections referred to elsewhere in this opinion, governing certain aspects of conduct of the inquiry, because so far as immunity is concerned s. 22 simply refers to s. 16 of the Act respecting public inquiry commissions, and it is that which must be analysed.

What has to be noted is that s. 16, which confers on commissioners the same immunity as is enjoyed by superior court judges "for any act done or omitted in the execution of their duty", makes no distinction depending on whether the commissioners exceed their jurisdiction.

This is not the case in other jurisdictions.

Section 15 of the Magistrates’ Courts Act (Northern Ireland) 1964, discussed below in McC v. Mullan, [1984] 3 All E.R. 908, reads as follows:

No action shall succeed against any person by reason of any matter arising in the execution or purported execution of his office of resident magistrate or justice of the peace, unless the court before which the action is brought is satisfied that he acted without jurisdiction or in excess of jurisdiction.

It speaks, on the one hand, of "execution of his office", and on the other of the absence or excess of jurisdiction. The magistrate may be held liable if while in the execution of his office he acts without jurisdiction or in excess of his jurisdiction. This distinction is not to be found in s. 16.

All the provinces have adopted legislation conferring immunity on the judges or commissioners appointed by them. Some statutes make a distinction depending on whether the judge is acting within the limits of his jurisdiction, and others make no distinction. A few examples will suffice to illustrate this.

Section 16(1) of the Provincial Court Judges Act, 1981 (Alta.), c. P‑20.1:

16(1) No action may be brought against a judge for any act done or omitted to be done in the execution of his duty or for any act done in a matter in which he has exceeded his jurisdiction unless it is proved that he acted maliciously and without reasonable and probable cause.

Section 37 of the Provincial Court Act, R.S.B.C. 1979, c. 341:

37. A judge, justice or court referee is not liable for damage caused by anything done or not done by him in the performance of his duty or in respect of a matter in which he lacked or exceeded his jurisdiction unless it is proved that he acted in bad faith or without reasonable and probable cause.

Section 2 of the Justices’ and Magistrates’ Protection Act, R.S.N.S. 1967, c. 157:

2 Where an action is brought against a justice of the peace for any act done by him in the execution of his office, with respect to a matter within his jurisdiction, it shall be expressly alleged in the statement of claim that the act was done maliciously and without reasonable and probable cause, and if at the trial of the action the plaintiff fails to prove such allegation, judgment shall be given for the defendant.

Section 23 of The Provincial Court Act, 1978, 1978 (Sask.), c. 42:

23. No action shall be brought against a judge or a justice of the peace in respect of any act done or omitted to be done in the execution of his duties, or in respect of any matter in which he lacked or exceeded his jurisdiction, unless it is proved that he acted maliciously and without reasonable and probable cause.

In each case a distinction is made between the execution of a judge's duties and the lack or excess of jurisdiction.

In Ontario and Quebec, however, no such distinction is made.

For Ontario, the provision is s. 98 of the Courts of Justice Act, 1984, 1984 (Ont.), c. 11:

98. Every judge of a court in Ontario and every master of the Supreme Court has the same immunity from liability as a judge of the Supreme Court.

For Quebec, it is s. 1 of the Magistrate’s Privileges Act, R.S.Q., c. P‑24:

1. No action shall be brought against a judge of the sessions, judge of the Provincial Court, judge of the Youth Court, justice of the peace or officer fulfilling public duties, by reason of any act done in virtue of a statutory provision of Canada or of Québec, for the reason that such provision is unconstitutional.

Moreover, the judges contemplated in section 260 of the Courts of Justice Act (chapter T‑16) shall enjoy the same immunity as judges of the Superior Court.

Finally, at the federal level the Inquiries Act, R.S.C. 1970, c. I‑13, is silent as to the immunity of members of a commission, and though it is not necessary to decide the point, it may be assumed that the common law rules would apply.

I conclude from the foregoing that the phrase "in the execution of their duty" in s. 16 of the Act respecting public inquiry commissions means the execution of a duty imposed by that Act on commissioners, and that the duty referred to is that of holding an inquiry and submitting a report. I further conclude that, unlike the legislation applicable in other jurisdictions, s. 16 makes no distinction depending on whether the act done or omitted was done or omitted without jurisdiction or in excess of jurisdiction. "Duty" and "jurisdiction" should not be confused. Section 16 states "in the execution of their duty". It does not state "within the limits of their jurisdiction".

Respondent did not argue that the provincial legislator lacks the power to confer on provincial judges or provincial bodies an immunity of the same kind as that enjoyed by superior court judges. The discussion did not turn on this point, though respondent referred to it in passing in the following passage from his submission:

[TRANSLATION] Clearly, the legislator was familiar with the rules of the common law on the personal liability of public employees and the theory of the "attributes of a court of record", and respondent submits that there would have to be a much more specific provision to bring about such a radical departure from the common law and confer on the members of an administrative body, exercising their powers of inquiry, the same immunity as superior court judges, assuming that a legislator had the constitutional authority to do so.

Moreover, I consider that the question is one of delictual liability, which falls within the scope of property and civil rights, matters of exclusively provincial jurisdiction, when as here the legislator is legislating on the civil liability of the members of a commission which he has the power to appoint.

On this point, I conclude that appellants enjoy the same immunity as a superior court judge not only with regard to proceedings for examining witnesses but also as regards the report submitted by them to the Attorney General.

Immunity of Superior Court Judges

The immunity of superior court judges in Canada, including judges of the Quebec Superior Court, is inherited from English law.

In Floyd and Barker (1607), 12 Co. Rep. 23, the principle of judicial immunity was recognized on the following ground: "for this would tend to the scandal and subversion of all justice. And those who are the most sincere, would not be free from continual calumniations..." (at p. 25).

In Garnett v. Ferrand (1827), 6 B. & C. 611, there is the following passage at pp. 625‑26:

This freedom from action and question at the suit of an individual is given by the law to the Judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions they may be free in thought and independent in judgment, as all who are to administer justice ought to be.

In Fray v. Blackburn (1863), 3 B. & S. 576, it states at p. 578:

It is a principle of our law that no action will lie against a Judge of one of the superior Courts for a judicial act, though it be alleged to have been done maliciously and corruptly; . . . The public are deeply interested in this rule, which, indeed, exists for their benefit, and was established in order to secure the independence of the Judges, and prevent their being harassed by vexatious actions.

In Royal Aquarium and Summer and Winter Garden Society v. Parkinson, [1892] 1 Q.B. 431, Lord Esher, M.R., wrote at p. 442:

It is true that, in respect of statements made in the course of proceedings before a Court of justice, whether by judge, or counsel, or witnesses, there is an absolute immunity from liability to an action.

In Halsbury’s Laws of England, 4th ed., vol. 1, 1973, at pp. 197 et seq., it is stated at Nos. 206 and 210:

206. Persons protected. Persons exercising judicial functions in a court are exempt from all civil liability whatsoever for anything done or said by them in their judicial capacity, nor can any action be brought against the Crown in respect of acts or omissions of persons discharging responsibilities of a judicial nature or in connection with the execution of judicial process.

210. Extent of protection. Wherever protection of the exercise of judicial powers applies, it is so absolute that no allegation that the acts or words complained of were done or spoken mala fide, maliciously, corruptly, or without reasonable or probable cause suffices to found an action. The protection does not, however, extend to acts purely extra‑judicial or alien to the judicial duty of the defendant; and, therefore, if the words complained of are not uttered in the course of judicial proceedings, the defendant is not protected.

The protection extends to all judges, juries, advocates, parties and witnesses, for words spoken or written in the course of a judicial inquiry and having any reference thereto, however remote.

H. Brun and G. Tremblay, Droit constitutionnel (1982), write at p. 514:

[TRANSLATION]

‑‑Immunity of judges

The primary aspect of the independence of the courts is negative: the judges will incur no civil liability when they act in their capacity as judges.

This absolute immunity is a rule of the common law applicable to superior court judges even where bad faith has been alleged: see Anderson v. Gorrie, [1895] 1 Q.B. 668; Bengle v. Weir, (1929) 67 C.S. 289; Lemieux v. Barbeau, [1972] R.P. 357; and Gabriel v. Langlois, [1973] C.S. 659. In the case of these judges, it can be said that they are immunized for any act performed in the course of and in connection with their duties. On the other hand, it is clear that superior court judges are civilly liable for their purely personal acts, which have no connection with their legal responsibilities.

The parties cited several other cases and a number of writers from Britain and the Commonwealth, other Canadian provinces and Quebec, which establish that superior court judges are protected against civil suit and which treat the immunity as absolute. It is not necessary to review them all.

In the view of the Court of Appeal, however, this immunity is not absolute, but depends largely on the ultra vires of the act committed by the judge and on the knowledge which he had of his lack of jurisdiction.

The Court of Appeal wrote: "The immunity of superior court judges is not defined by law. Judicial attitudes to its scope have evolved . . .".

The Court of Appeal relied on Sirros v. Moore, [1975] 1 Q.B. 118, a decision of the United Kingdom Court of Appeal which has been frequently cited, both by the courts and in scholarly analysis, as the correct statement of the contemporary rule of immunity.

The most often cited passage is the following, from Lord Denning M.R. at p. 136:

In this new age I would take my stand on this: as a matter of principle the judges of superior courts have no greater claim to immunity than the judges of the lower courts. Every judge of the courts of this land ‑‑ from the highest to the lowest ‑‑ should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure "that they may be free in thought and independent in judgment," it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself: "If I do this, shall I be liable in damages?" So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction ‑‑ in fact or in law ‑‑ but so long as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly entertains this belief, nothing else will make him liable. He is not to be plagued with allegations of malice or ill‑will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.

With respect, I consider that Sirros does not support the proposition of the Court of Appeal that the immunity is not absolute. In my view, the evolution indicated by Sirros is actually contained in the proposition put forward by Lord Denning, concurred in by Ormrod L.J., that judges of the "inferior" courts have the same immunity as that conferred on judges of the "superior" courts. This proposition is to be found at the beginning of the passage cited above:

In this new age I would take my stand on this: as a matter of principle the judges of superior courts have no greater claim to immunity than the judges of the lower courts. Every judge of the courts of this land ‑‑ from the highest to the lowest ‑‑ should be protected to the same degree, and liable to the same degree.

However, in a case subsequent to the decision of the Court of Appeal in the case at bar, McC v. Mullan, supra, the House of Lords rejected the change suggested by Lord Denning because of the specific legislative provisions applicable in Northern Ireland and those applicable in England, which make a justice of the peace or magistrate liable in damages when he acts without jurisdiction or exceeds his jurisdiction. The same legislation provides, however, that a justice of the peace or magistrate who has to pay damages in such circumstances will be compensated by the government. This issue is foreign to the appeal at bar.

The position of Lord Denning on the extent of the immunity of superior court judges does not seem to me to differ from that of the House of Lords.

The interpretation of the Court of Appeal appears to be based on the reservation made by Lord Denning, in particular at the very end of the passage cited above, where he writes:

Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.

Lord Bridge of Harwich, on the other hand, writes in McC v. Mullan, supra, at p. 916:

It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say, "That is a perverse verdict," and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass. But, as Lord Esher MR said in Anderson v. Gorrie [1895] 1 QB 668 at 670:

". . . the question arises whether there can be an action against a judge of a Court of Record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie."

The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety‑nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.

Like Lord Denning, Lord Bridge of Harwich also makes a qualification when he writes at the beginning of the passage cited that a judge, even the Lord Chief Justice, who after a verdict of acquittal by a jury decided to pass a sentence of imprisonment would be liable to a civil action.

However, this is the only way in which the immunity is limited by these judges. Lord Bridge of Harwich makes the necessary distinctions, between excess of jurisdiction which may be a basis for an action in damages and excess of jurisdiction which will be a basis for exercise of the superintending and reforming power, an appeal or other means of reviewing a judgment, as follows at pp. 917‑18:

Lord Lowry LCJ, giving the judgment of the Court of Appeal in the instant case, seems to take the view that the fact of the training school order having been quashed by certiorari was conclusive that it was made "without jurisdiction or in excess of jurisdiction" for the purpose of establishing civil liability against the appellants. He said:

". . . there is no ground, in a case like the present, on which certiorari could be granted except want of jurisdiction or excess of jurisdiction."

I assume that by the words "in a case like the present" he meant to exclude cases of certiorari granted for errors of law on the face of the record. But he went on to refer to the Anisminic case [1969] 1 All ER 208, [1969] 2 AC 147 in a sense which would seem to imply that the extended concept of acting without jurisdiction or in excess of jurisdiction which that landmark decision of your Lordships' House introduced must be applied to extend the range of justices' potential civil liability under s 15 of the 1964 Northern Ireland Act. If that was indeed his meaning, I must respectfully but emphatically dissent from it.

I would observe in passing that from 1848 down to the present time there have been innumerable cases where orders of justices have been quashed for want of jurisdiction, but remarkably few where they have been successfully sued for damages. It would be wrong, however, to attach much, if any, significance to this, since no cause of action against justices lies merely in respect of a conviction recorded, a fine imposed or other order made without jurisdiction. The conviction, fine or order will be quashed with or without costs against the justices, the fine if paid will be repaid, and that will be the end of it. The only cause of action which can arise is for trespass to the person (unlawful arrest or imprisonment) or trespass to goods (unlawful distress): see Polley v Fordham (No 2) (1904) 91 LT 525, [1904‑7] All ER 651, O’Connor v Isaacs [1956] 2 All ER 417, [1956] 2 QB 288.

But I think the equiparation by Lord Lowry LCJ of an excess of jurisdiction which will afford a sufficient ground to quash an order by certiorari with an excess of jurisdiction sufficient to deprive the justices who made the order of their statutory protection under s 15 of the 1964 Northern Ireland Act is refuted by authority. In Johnston v Meldon (1891) 30 LR Ir 15 the plaintiff had been convicted by justices of a statutory offence of unlawful fishing, fined and imprisoned in default of payment of the fine. The conviction was quashed on the ground that by his defence the plaintiff, having set up a bona fide claim of title to fish where he did, had raised an issue as to the ownership of the several fishery in the waters where the act complained of took place, which, being a question of title, the justices had no jurisdiction to decide. The plaintiff sued the justices for false imprisonment. The Exchequer Division (Palles CB, Andrews and Murphy JJ) held that, despite the quashing of the conviction, there being no allegation of malice, the action would not lie. Giving the leading judgment, Palles CB said (at 28‑29):

"I hold then, that upon the now plaintiff claiming...to be entitled to fish, the jurisdiction of the justices to inquire terminated, and that their subsequent conviction was without jurisdiction and consequently null. The plaintiff next contends that this fact per se, and irrespective of any knowledge or belief in the minds of the justices is sufficient to sustain the action; this position is however wholly unsustainable. There is, as pointed out by Lord Blackburn, in Pease v. Chaytor ((1863) 3 B & S 620, 122 ER 233) a distinction between questioning the validity of a judgment of a court of limited jurisdiction, for the purpose of preventing the enforcement of that judgment, and questioning it for the purpose of maintaining an action against the judges of that court..."

In this case of McC v. Mullan, an action for damages was brought against magistrates for unjust imprisonment. The magistrates' liability was governed by s. 15 of the Magistrates’ Courts Act (Northern Ireland) 1964, which I have already cited, but which should be reproduced again:

No action shall succeed against any person by reason of any matter arising in the execution or purported execution of his office of resident magistrate or justice of the peace, unless the court before which the action is brought is satisfied that he acted without jurisdiction or in excess of jurisdiction.

Lord Bridge of Harwich preceded the foregoing passages with the observation that his discussion of immunity was obiter. He wrote, at p. 916:

My Lords, I am fully conscious that anything I say on this topic is obiter, since no question of malice, either within or without jurisdiction, arises in this appeal. But when the whole subject of justices' liability arising out of the execution or purported execution of their office is under consideration by this House for the first time, even though this aspect of the subject was not argued, I should be sorry to pass it by without comment.

He then dealt with the immunity of superior court judges, explained that because of s. 15 that immunity cannot be extended to magistrates and justices of the peace as suggested by Lord Denning in Sirros v. Moore, supra, and made the necessary distinctions between excess of jurisdiction which will be a basis for review and excess of jurisdiction which will sustain an action for damages.

In that case the magistrates had failed to inform the accused, who was not represented by counsel, of his right to apply to the legal aid service before ordering his detention, as they were required to do by the Treatment of Offenders (Northern Ireland) Order 1976. In this they exceeded their jurisdiction, and under s. 15 could be sued for damages.

No section equivalent to s. 15 applies to superior court judges, and the latter could only be sued in damages where the qualification made by Lord Bridge of Harwich, or before him by Lord Denning, applies, that is in the formula as stated by the former, a judge who in bad faith did something which he knew he did not have the jurisdiction to do, or as stated by the second, a judge who was not acting in the course of his judicial duties knowing that he had no jurisdiction to act.

It should be noted that neither Lord Bridge of Harwich nor Lord Denning cited authorities in support of the qualification made by them. In any case, it is not necessary to decide the merits of that for the purposes of this appeal.

Indeed, there is no question in the case at bar that appellants, members of the Commission de police, had the necessary jurisdiction to conduct an inquiry and to submit a report. It is possible that they exceeded their jurisdiction by doing or failing to do the acts mentioned in the statement of claim. It is possible that they contravened the rules of natural justice, that they did not inform respondent of the facts alleged against him or that they did not give him an opportunity to be heard. It is possible that they contravened the Charter of human rights and freedoms. All of these are allegations which may be used to support the respondent's other action to quash the report of the Commission de police and the evidence obtained. This action continues to be before the Superior Court, and of course I shall make no ruling upon it: but in my opinion these are not allegations which may be used as the basis for an action in damages.

Procedure used by Appellants: Motion to Dismiss

Appellants proceeded by a motion to dismiss based on para. 4 of art. 165 C.C.P., and alleging that the action is unfounded in law, even if the facts alleged are true.

In my opinion they were right. I have already indicated, though without ruling on the point, that it is possible that the action to quash the report of the Commission de police and the evidence obtained is valid if the allegations made are proven. However, these allegations do not support an action in damages against appellants, members of the Commission de police, vested with the same immunity as superior court judges for any act done or omitted in the course of their duties. I feel I have adequately demonstrated that the conduct of the inquiry for which they were responsible and the submission of their report were part of their duties. Accordingly, they enjoy the absolute immunity of superior court judges.

It is important to avoid litigation or to terminate it as quickly as possible when it cannot succeed in law. This is provided in the Code of Civil Procedure. It is also the way litigation is disposed of in many other jurisdictions, by means of a motion or application to strike out the statement of claim.

This is precisely what was involved in Sirros v. Moore, supra, where the English Court of Appeal allowed the application to strike out and Lord Denning wrote in the passage cited above: "Actions based on such allegations have been struck out and will continue to be struck out".

This was also true in each of the following cases, in which superior court judges or others enjoying the same immunity were sued in damages:

‑‑ Schwartz v. Smith (1964), 45 D.L.R. (2d) 316 (B.C.S.C.);

‑‑ Ringrose v. Stevenson (1982), 35 A.R. 62 (Q.B.);

‑‑ Unterreiner v. Wilson (1982), 40 O.R. (2d) 197 (H.C.);

‑‑ Stark v. Auerbach (1979), 98 D.L.R. (3d) 583 (B.C.S.C.);

‑‑ Bengle v. Weir (1929), 67 C.S. 289;

‑‑ Gabriel v. Langlois, [1973] C.S. 659;

‑‑ Foran v. Tatangello (1976), 14 O.R. (2d) 91 (H.C.);

‑‑ Haggard v. Pélicier Frères, [1892] A.C. 61 (P.C.);

‑‑ Scott v. Stansfield (1868), L.R. 3 Ex. 220.

In the case at bar, the motions to dismiss were an appropriate proceeding in my opinion and I conclude that they were valid.

For these reasons, I would allow the appeal with costs, set aside the judgment of the Court of Appeal, restore the Superior Court judgment dismissing respondent's action for damages against appellants and declare that para. 34 of the statement of claim and para. 8 of the conclusions cannot be set up against the latter.

English version of the reasons of Wilson and La Forest JJ. delivered by

La Forest J. (dissenting) ‑‑ In his reasons for judgment Chouinard J. gives a summary of the facts respecting this appeal and only the most important need be repeated here.

Under s. 20 of the Police Act, R.S.Q., c. P‑13, the appellants, whom I shall also refer to as the commissioners, sat in 1979 and 1980 as additional members of the Commission de police du Québec and conducted an inquiry into the activities of certain persons in the business world who were allegedly engaged in certain criminal offences. Section 20 provides:

20. The Commission shall make an inquiry, whenever requested to do so by the Government, respecting any aspect of crime which it indicates.

The Commission shall also make an inquiry into the activities of an organization or system, its ramifications and the persons involved, to the extent prescribed by the Government, whenever it has reason to believe that in the fight against organized crime or terrorism and sub‑ version, it is in the public interest to order such an inquiry to be held.

Following this inquiry the Commission submitted a written report to the Attorney General pursuant to s. 35 of the same Act. The relevant part of that section reads as follows:

35. When an inquiry has been made in accordance with the preceding sections, the Commission shall make a written report of its findings to the Attorney General;...

This report was then published.

In this report, the respondent alleges that his conduct was severely censured without his being informed as required by s. 34.3, as follows:

34.3 The Commission shall not, in its reports, censure the conduct of a person or recommend that punitive action be taken against him unless it has informed him of the facts alleged against him and has permitted him to be heard on that subject.

That obligation ceases if that person has been invited to appear before the Commission within a reasonable time and he has refused or neglected to do so. That invitation shall be served in the same manner as a summons under the Code of Civil Procedure.

The respondent subsequently brought a twofold action against the appellants, who signed the report, and the Commission itself. In the first action respondent, relying on art. 33 C.C.P., asked that the report, or alternatively the part concerning him, be declared null and void together with the related evidence. In the second action, the respondent asked that the Commission and appellants be jointly and severally ordered to pay him $250,000 as exemplary damages, in accordance with s. 49 of the Charter of human rights and freedoms, R.S.Q., c. C‑12, which provides:

49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to exemplary damages.

The appeal relates solely to the second action.

Before pleading to the action, each of the appellants filed a motion to dismiss, relying on the immunity set forth in s. 22 of the Police Act:

22. For the purposes of an inquiry held by it under this act or any other act, the Commission, each of its members and every person authorized by it to make an inquiry are vested with the powers and immunity of a commissioner appointed under the Act respecting public inquiry commissions (chapter C‑37).

This provision leads us to s. 16 of the Act respecting public inquiry commissions, R.S.Q., c. C‑37, which provides:

16. The commissioners shall have the same protection and privileges as are conferred upon judges of the Superior Court, for any act done or omitted in the execution of their duty.

The Superior Court judge ruled in favour of the appellants, but his decision was reversed by the Court of Appeal, [1983] C.A. 334, which dismissed the motions to dismiss on the following grounds at p. 335:

[TRANSLATION] The immunity of superior court judges is not defined by law. Judicial attitudes to its scope have evolved: see Sirros v. Moore, [1975] Q.B. 118 (U.K.) The immunity does not seem to be absolute but to depend largely on the ultra vires of the act committed by the judge and on the knowledge which he has that he lacked jurisdiction.

It is difficult to assess the concepts of jurisdiction and knowledge in the abstract: it is usually preferable to look at the exact circumstances of a case before arriving at a decision.

This is so in the case at bar: appellant alleged that respondents began an inquiry without publishing notices and that they censured his conduct without giving him an opportunity to defend himself, contrary to the specific provisions of the Act under which they held their mandate.

The evidence presented of these allegations will be more or less circumstantial. If certain circumstances were proven, a judge could conclude that the immunity enjoyed by respondents was not a bar to appellant's action.

At this stage of the proceedings, appellant should be given the benefit of the doubt.

In short, I am unable to conclude that the allegations of appellant's action do not establish a right against respondents.

The appellants appealed from this judgment with respect to the action for damages.

In this Court, the argument especially turned on the first sentence of the Court of Appeal's reasons: in other words, counsel devoted most of their arguments to the question of the extent of the immunity of superior court judges. However, that sentence is far from comprising all of the reasons of the Court of Appeal, and from the manner in which I approach the issues, it becomes quite secondary.

It should be borne in mind that, in the case at bar, the primary question is not the jurisdiction of superior court judges or the extent of their immunity. What is really at issue is the immunity conferred on commissioners appointed under the Police Act. As we have seen, this immunity is set forth in s. 16 of the Act respecting public inquiry commissions, which I repeat:

16. The commissioners shall have the same protection and privileges as are conferred upon judges of the Superior Court, for any act done or omitted in the execution of their duty.

(Emphasis added.)

It is true that this provision gives commissioners the same immunity as superior court judges, but only when they are acting "in the execution of their duty". What must be considered is not primarily the jurisdiction or immunity of superior court judges, but the duties or jurisdiction of commissioners under their enabling Act, namely the Police Act.

There is no doubt that the Commission has the duty to submit a report to the Attorney General. Under s. 35, as we have seen, the Commission is required to submit a report of its findings. However, while the Act indicates that the Commission should make a report, it also clearly indicates what it must not include in it. It will be recalled that s. 34.3 provides that the Commission "shall not" (I emphasize, shall not) "in its reports, censure the conduct of a person . . . unless it has informed him of the facts alleged against him and has permitted him to be heard on that subject". This was not done in the present case. Thus, far from submitting a report in the execution of their duty, the commissioners, if what they are censured for is true, did what it was their duty under the Act not to do. The Act states specifically that they shall not do it, that is, that they lack the capacity to do it, or in other words that they have neither the jurisdiction nor the duty to do it.

What is involved is not a minor procedural omission. Rather it is an act that may cause considerable harm to an individual, especially with the publicity that surrounds this type of commission nowadays. I am not the first to realize this: see, for example, Re The Ontario Crime Commission, Ex parte Feeley, [1962] O.R. 872 (C.A.), at p. 896, per Schroeder J.A. The legislature clearly anticipated this danger, and in order to protect the individual it expressly provided that the Commission is not to censure the conduct of a person unless he has been given an opportunity to defend himself.

I, therefore, conclude that if the respondent's conduct was censured in the commissioners' report without his having been permitted to be heard on that subject, as required by s. 34.3 of the Police Act, it is far from clear that the commissioners were acting in the execution of their duty for the purposes of s. 16 of the Act respecting public inquiry commissions. The latter is a general statute while the enabling legislation for the commissioners, i.e., the Police Act is specific to this Commission. Section 34.3 of the latter was specifically devised to afford protection to the persons accused of blameworthy conduct in a Commission's report. I fail to see how a motion to dismiss the respondent's action for damages can succeed.

The judgment in McC v. Mullan, [1984] 3 All E.R. 908 (H.L.), supports this conclusion. In that case a magistrate had ordered an accused to be detained, which he had the power to do. However, he did so without informing the accused that he was entitled to request legal aid, even though art. 15(1) of the Treatment of Offenders (Northern Ireland) Order 1976 provided that a magistrate should inform the accused of this right before ordering his detention. The order was subsequently set aside and the accused brought an action against the magistrate, seeking damages for his detention because the magistrate had acted in excess of his jurisdiction. In his defence, the magistrate cited s. 15 of the Magistrates’ Courts Act (Northern Ireland) 1964, which provides:

No action shall succeed against any person by reason of any matter arising in the execution or purported execution of his office of resident magistrate or justice of the peace, unless the court before which the action is brought is satisfied that he acted without jurisdiction or in excess of jurisdiction.

The issue there was thus very similar to that in the present case, namely whether the magistrate had acted beyond his jurisdiction in ordering that the accused be detained without informing him of his right to legal aid.

In approaching the issue, Lord Bridge of Harwich, writing for the majority in the House of Lords, first observed that the concept of jurisdiction is extremely complicated. On the one hand, there are very clear situations, such as in the Marshalsea Case (1612), 10 Co. Rep. 68b, 77 E.R. 1027 (K.B.), where a Court exceeded its jurisdiction, which extended only to members of the King's Household, when the parties involved were not members. In such a case, there was no doubt that an injured party could sue members of the Court for damages. I would add that in such circumstances, I see no difference between the concept of jurisdiction and that of duty.

However, since Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.), the concept of jurisdiction has been widened to permit judicial review of "inferior" courts, when through a technical error they do what they are not permitted to do by law (see especially at pp. 913, 917 and 920 of McC). The Court could not be sued in damages for an error of this kind.

Between these two types of excess of jurisdiction, Lord Bridge observed, there is a vast area in which the law is less clear. The question in McC was to define the situations that fell under the protection of s. 15 of the Magistrates’ Courts Act (Northern Ireland) 1964. Lord Bridge appeared to have no difficulty in determining that the failure of the magistrate to inform the accused of his right to legal aid could not be viewed as a subtle procedural error that constituted an excess of jurisdiction by virtue of the Anisminic case. Rather there had been a serious irregularity. In his observations at p. 920, he drew the line between the two types of procedural irregularity and the resultant consequences as follows:

Justices would, of course, be acting `without jurisdiction or in excess of jurisdiction' within the meaning of s. 15 if, in the course of hearing a case within their jurisdiction, they were guilty of some gross and obvious irregularity of procedure, as for example if one justice absented himself for part of the hearing and relied on another to tell him what had happened during his absence, or of the rules of natural justice, as for example if the justices refused to allow the defendant to give evidence. But I would leave for determination if and when they arise other more subtle cases one might imagine in which it could successfully be contended in judicial review proceedings that a conviction was vitiated on some narrow technical ground involving a procedural irregularity or even a breach of the rules of natural justice. Such convictions, if followed by a potential trespass to person or goods, would not, in my opinion, necessarily expose the justices to liability in damages.

In McC, as in the present case, the question was not a subtle one, but an irregularity that was at once obvious and serious. More important, in both cases the procedure was one required by the legislature as a prerequisite to the exercise of a power, in McC the detention of the accused, in the present case the imputing to respondent of conduct open to censure. In the particular context of McC, there were several earlier cases in which magistrates had been successfully sued for damages because they had failed to comply with the specific requirements of the applicable legislation.

The fundamental principle that emerges from the reasons of Lord Bridge is very clearly stated at p. 924:

Can it be said that the appellants' omission to inform the respondent of his right to apply for legal aid was a mere procedural irregularity? I have reached the conclusion that it cannot. The language of art 15(1) of the 1976 order, in any case in which it applies, prohibits in the clearest terms the imposition of any of the custodial sentences mentioned unless one or other of the conditions referred to in sub‑paras (a) and (b) of the paragraph has been satisfied. As already mentioned, s. 21(1) of the Powers of Criminal Courts Act 1973 has the same effect. Parliament plainly attached importance to ensuring that none of these custodial sentences should be imposed for the first time on a defendant not legally represented unless the defendant's lack of representation was of his own choice. The philosophy underlying the provision must be that no one should be liable to a first sentence of imprisonment, borstal training or detention, unless he has had the opportunity of having his case in mitigation presented to the court in the best possible light.

By substituting the legislative provisions applicable in the present case for those referred to by Lord Bridge, it becomes obvious that the same considerations apply here. In my opinion, a person who flagrantly acts in excess of his jurisdiction as already described does not act in the execution of his duty.

It is unnecessary for the purposes of this appeal to examine the other points that were raised, namely whether a distinction should be made between the immunity conferred on a judge of an "inferior" court and that conferred on a judge of a superior court, the extent of the latter or the jurisdiction of a provincial legislature to confer such immunity on the members of bodies other than a superior court.

For these reasons, I would dismiss the motions to dismiss and accordingly would dismiss the appeal.