RE Board of Police Comissioners for the ...



Saskatchewan Queen’s Bench, Halworson J. .January 3, 1979.

Extraordinary remedies – Prohibition – Availability – Ombudsman empowered to compel attendance of witnesses and production of documents – Ombudsman exercising judicial function In this respect – Prohibition lies – Ombudsman Act, 1972 (Sask) c. 87 a 22.

[A.G. Que. and Keable v. A.-G. Can. (1978), 90 D.LR. (3d) 161, 43 C.C.C. (2d) 49, [1979] 1 S.C.R 218, 6 C.R. (3d) 145, 24 N.R. 1, folId]

Administrative law – Ombudsman – Powers – Statute precluding investigation by Ombudsman of decisions in relation to matters between Government agencies and municipalities – Ombudsman having power to Investigate provincial police commission, a Government agency – Commission empowered to delegate Investigation to local police commission – Whether Ombudsman has power to Inquire into investigation of local commission – Ombudsman Act, 1972 (Saslc4, c. 87, as. 12(1), 15(l)(g) – Police Act, 1974 (Sask), c. 77, a. 12.

The Saskatchewan Ombudsman is precluded by a. 15(1)(g) of the Ombudsman Act, 1972 (Sask.), c. 87, from inquiring into any decision of any Government agency, such as the Saskatchewan Police Commission, in relation to any matter arising between it and, inter alia, a municipality, but he can investigate any decision of a Government agency under a. 12(1) of the Act. Accordingly while the Ombudsman has no power to investigate decisions of a local police commission, he can in into the manner in which an Investigation, delegated to a local police commission by the Saskatchewan Police Commission, was conducted, such delegation being authorized under a. 12 of the Police Act, 1974 (Sask.), c. 77. For this purpose the Ombudsman may examine the personnel of the local board.

[Re Alberta Ombudsman Act (1970), 10 D.L.R. (3d) 47, 72 W.W.R. 116, apld]

APPLICATION to prohibit the Saskatchewan Ombudsman from proceeding with the examination of certain persons.

J. B. J. Nutting, Q.C., for applicants.
N. S. Sandomirsky for respondent.

HALVORSON, J.:- The applicants seek an order of prohibition to prevent the Saskatchewan Ombudsman from proceeding with an examination of certain persons and an order quashing subpoenas issued to those persons by the Ombudsman.

The facts of this case arc uncomplicated and may be stated briefly:

One Raymond Quarg complained to the Saskatchewan Police Commission (the Saskatchewan Commission) that the Saskatoon Police Department had not provided proper medical treatment to him while he was incarcerated.
The Saskatchewan Commission referred the complaint to the applicant, the Board of Police Commissioners for the City of Saskatoon (the Saskatoon Board), for investigation.
An investigation was conducted and a report provided to the Saskatchewan Commission.
Quarg, being dissatisfied with the manner in which the Saskatchewan Commission handled the matter, lodged a com plaint with the Ombudsman.
According to the affidavit of the Ombudsman filed, he received the entire Quarg file front the Saskatchewan Commission but was unable to conclude whether or not an adequate investigation of Raymond Quarg’s complaint to the Saskatchewan Police Commission had been conducted. As a consequence, the Ombudsman proposed to investigate personnel associated with the Saskatoon Board which had actually conducted the investigation for the Saskatchewan Commission. To that end he subpoenaed the applicant, Irwin, who is assistant city solicitor for the City of Saskatoon and was secretary to the Saskatoon Board at the relevant time, and, the applicant, Hession, who at the time in question was a superintendent of the Saskatoon Police Force. The applicants submit that the Ombudsman tacks jurisdiction to inquire into the operations of the Saskatoon Board.

It was emphasized by the Ombudsman that it is not his intention to investigate the merits of the complaint which Quarg has against the police force relative to medical treatment, but, rather, the Ombudsman wishes to look into the manner in which the inquiry into Quarg’s complaint was conducted.

As a preliminary objection, counsel for the Ombudsman con tends that prohibition does not lie against the Ombudsman be cause his functions are strictly administrative and not judicial in nature. This is evidenced by the fact, according to counsel, that the Ombudsman is only empowered to investigate, recommend and report, and he cannot impose sanctions.

I am unable to agree with this argument for the reason that the Ombudsman is authorized under s. 22 of the Ombudsman Act, 1972 (Sask.), c. 87, to compel the attendance of witnesses and production of documents. That section reads in part as follows:

22(1) Subject to section, 2 the Ombudsman may require city person, other than a minister or a person mentioned in clause (f) of subsection (1) of section 15, who in his opinion is able to give any information relating to any matter being investigated by him:

to furnish information to him; and
to produce any document or thing that, in his opinion, relates to the mutter being investigated and that may be in the possession or under the control of that person;
whether or not that person is an officer, employee or me of the department or agency of the government and whether or not the document, paper or thing is in the custody or antler the control of a department or agency of the government.

(2) The Ombudsman may sum awn before him and examine under oath:

any person, other than $ minister or a person mentioned in clause (I’) of section 15, who is an officer, employee or member of any department or agency of the government and who lo the opinion of the Ombudsman Is able to give any information relating to any matter being investigated by him;
any complainant; and
any other person who in the opinion of the Ombudsman is able to give any information relating to any matter being Investigated by him;
and for that purpose may administer an oath.

(3) Every examination by the Ombudsman under subsection (2) shall be deemed a judicial proceeding for the purposes of section 120 of the Criminal Code.

(Italics mine.) This aspect of the Ombudsman’s function is clearly judicial in nature and is amenable to prohibition proceedings. This is clear from the comments of Pigeon, J., in A.-G. Que. and Keable v. A.-G. Can. (Supreme Court of Canada, October 31, 1978, as yet unreported [since reported 90 D.L.R. (3d) 161 at pp. 166-7, 43 C.C.C. (2d) 49, [1979] 1 S.C.R. 218]:

Much was sought to be made of such cases as Guay v. Lafleur (1964), 47 D.L.R. (2d) 226, [1965] S.C.R. 12, [1964] C.T.C. 350, and St. John et al. v. Fraser et al. (1935), 64 C.C.C. 90, [1935] 3 D.L.R. 465, (1935) S.C.R. 441, in which applications to restrain the proceedings o a commission of inquiry were dismissed op the basis that these were administrative not judicial proceedings, but those were applications made by persons whose actions Were being investigated and against whom no judicial power was being exercised. Such is not the case here. Assuming the Commissioner will not amount to any judicial or quasi-judicial determination, what is presently in issue is the validity of strictly judicial acts? the compulsion of witnesses to testify and to produce documents. It is conclusively established by the recent judgment of this Court in Cotroni v. Quebec Police Com’n and Brunet et al. (1977), 38 CCC. (2d) 56, 80 D.L.R. (3d) 490, [1978] 1 S.C.R. 1048, that the validity of the conviction of a witness for contempt by a Commissioner with similar powers is subject to judicial review. The Court of Appeal was plainly right in holding that this was not the only possible remedy and that evocation was available to challenge the validity of the Commissioner’s mandate, subpoenas and orders on jurisdictional and constitutional grounds.

(Italics mine.)
The question to be resolved is: Does the Ombudsman have jurisdiction to investigate activities of the Saskatoon Board in the circumstances of this ease? An answer is not forthcoming without a careful consideration of the Ombudsman Act, the purpose of that legislation and the Police Act, 1974 (Sask.), c. 77, and the Regulations thereto.

For the applicants it is suggested that the Ombudsman pro- noses to investigate a decision of an agency of the Government (the Saskatchewan Commission) in relation to a matter arising between that agency and a municipality (the Saskatoon Board), and that this is expressly prohibited by s. 15(1)(g) of the Ombudsman Act which states:

15(1) Nothing in this Act authorizes the Ombudsman to Investigate:

(g) any decision, recommendation, act, order or omission of any department or agency of the government, or an officer, employee or person, in relation to any matter arising between the department, agency, officer, employee or person, and the government of another province or the Government of Canada or a municipality or school board.

(Italics mine.)
In my opinion this proposition must fail. The Ombudsman does not intend to inquire into a decision in relation to a matter between the Saskatchewan Commission and the Saskatoon Board; he intends to investigate the Saskatchewan Commission to assess the methods which it used in carrying out its inquiry of the Quarg complaint.. The matter, of course, involves both the Saskatchewan Commission and the Saskatoon Board, but that is not the same thing as any matter arising between them as contemplated by s. 15(1)(g).

It is conceded that the Ombudsman has the jurisdiction to in vestigate the Saskatchewan Commission, it being an agency of the government within the meaning of s. 12(1) of the Act and as defined in s. 2(a) thereof. Section 12(1) is the empowering section of the Act and it states:

12(1) It is the duty of the Ombudsman and he has power to investigate any decision or recommendation made, including any recommendation made to a minister, or any act done or omitted, relating to a matter of administration and affecting any person or body of persons in his or its personal capacity, in or by a department or agency of the government or by any officer, employee or member thereof in the exercise of any power, duty or function conferred or imposed on him by any Act whereby any person is or may be aggrieved.

(Italics mine.)
It is quite apparent that this section is not sufficiently wide to permit an inquiry by the Ombudsman into a decision of a local police commission under normal circumstances.

It is the position of the Ombudsman, however, that the Saskatchewan Commission delegated to the Saskatoon Board the Com mission’s obligation to inquire into Quarg’s complaint and that the Saskatoon Board is, therefore, the agent of the Saskatchewan Commission and, as such agent, amenable to the jurisdiction of the Ombudsman.

Section 12 of the Police Act, 1971 together with ss. 4.02 to 4.04 of Part IV of the Regulations to that Act (Municipal Police Discipline Regulations, Sask. Reg. 262/75) permit a delegation of power by the Saskatchewan Commission. Section 1 reads in part as follows:

12(1) The commission, or a person designated by the commission may inquire into or cause to be inquired into, any matter relating to the conduct of, or the performance of duty by, a member of a police force or a members of the Royal Canadian Mounted Police.

(2) Where the matter concerns a member of a police force, the commission may refer the matter to the board, or where there is no board, to the council, with a direction to inquire into the matter and take such action as the board or council considers appropriate.

(4) The board or council or the Commanding Officer of the Royal Canadian Mounted Police shall inform the commission in writing of the results and action taken in respect to an inquiry under subsections (2) or (3).

(Italics mine.) The pertinent Regulations state;

4.02 Complaints may be referred by the Commission to the Board of Police Commissioners, or in the absence of such board, to the council, (or investigation and report.

4.03 In the event the Commission is satisfied with the report and investigation, a letter outlining the decision reached is to be forwarded to the complainant, with a copy to the board or council.

4.04 In the event the Commission is not satisfied with the investigation and report, it may cause further enquiries to be made, either by referral back to the board or council, or by instituting its own inquiry.

(Italics mine.)
As I understand it., the Saskatchewan Commission often re quests a local police board, such as the Saskatoon Board, to con duct the initial investigation of a complaint The Saskatchewan Commission upon receiving the report may accept it or if not satisfied with the disposition of the matter, may conduct its own public hearing into the complaint

Is the Ombudsman correct in his assumption that on the basis of the delegation of authority he can look into that which was done by the Saskatoon Board on behalf of the Saskatchewan Commission?

it is crucial to attempt to determine the purpose of the Legislature when it passed the Ombudsman Act. I can do no better than paraphrase comments made in Re Alberta Ombudsman Act (1970), 10 D.L.R. (3d) 47, 72 W.W.R. 176, wherein the reasons for the need of the Ombudsman Act of Alberta were thoroughly canvassed.

Essentially, it was stated in that case that complicated and all- encompassing legislation of this day and age necessitated the establishing of an ever-increasing Government administrative machine bestowed with discretion and consequent arbitrariness. Courts were becoming ineffective in correcting wrongs perpetrated by some tribunals, and a need arose for someone to report these injustices to the Legislature. I adopt the following comment of Milvain, C.J.T.D., at pp. 60-1 D.L.R., p. 192 W.W.R., in the judgment of that case:

These sections seem to make it clear that, as an ultimate objective, the ombudsman can bring to the Legislature his observations on the misworking of administrative legislation. He can also focus the light of publicity on his concern as to injustices and needed change. It must, of course, be remembered that the ombudsman is also a fallible human being and not necessarily right. However, he can bring the lamp of scrutiny to otherwise ‘lark places, even over the resistance of those who would draw the blinds, If his scrutiny and observations are well-founded, corrective measures can be taken in due democratic process, if not, no harm can be done in looking at that which is good.

In my opinion it was the purpose of the Saskatchewan Ombudsman Act to bring before the Legislature, Minister or other responsible party, all injustices that the Ombudsman was authorized to investigate. The intention of the Legislature could be defeated by placing a restrictive interpretation on those sections of the statute where no restrictions are specifically mentioned.

In my view a board such as the Saskatoon Board may act by virtue of the authority conferred on it by the statute creating it, and it may also act by virtue of the special and distinct authority outside of and different from that which the board possesses by virtue of that statute. A good example of he latter is the present case. The Saskatoon Board acts here much like a persona designata.

Considering together the fact that the Legislature has authorized the Ombudsman, in the Ombudsman Act, to investigate decisions of the Saskatoon Commission, and the fact that the Legislature in the Police Act, 1974 and Regulations thereunder, has chosen to permit the Saskatchewan Commission to delegate certain of its powers and functions, I am compelled to conclude that it was never the intention of the Legislature to prevent the Ombudsman from investigating a persona designata such as the Saskatoon Board in relation to the execution of those delegated powers and functions. The purpose of the Ombudsman Act cannot be frustrated by an agency of the government delegating its responsibility to a body which, in ordinary circumstances, is beyond the investigatory scope of the Ombudsman.

While I am of the view, in the circumstances of the case before me, that the Ombudsman may examine personnel connected with the Saskatoon Board relative to the inquiry it conducted on be half of the Saskatchewan Commission, I wish to make it abundantly clear that this must not be interpreted in any way to mean that the Ombudsman has any authority to investigate police boards as such. He has no such jurisdiction.

It goes without saying that the Saskatoon Board personnel will be under no obligation to answer any questions or produce any documents which relate to general board activities, including any inquiry which the Saskatoon Board may have made on its own initiative relative to the Quarg complaint. The authority of the Ombudsman is limited in this respect to determining what was done by the Saskatoon Board for the Saskatchewan Commission in investigating the complaint in question.

I can see no prejudice to the Saskatoon Board as a consequence of the Ombudsman having a limited right to examine its personnel. As Milvain, C.J.T.D., stated, no harm can be done in looking at that which is good.

I turn now to deal with the contention of the applicant, Irwin, that as solicitor to the Saskatoon Board, he cannot be compelled to answer questions relative to the Board’s activities because of the solicitor-client privilege. A short answer to this objection is that the Ombudsman seeks only to examine Irwin in his capacity as former secretary to the Saskatoon Board. Inquiries directed to him in his position as solicitor can be readily objected to.

On behalf of the applicant, Hession, it is suggested that be cause he was a police officer at the relevant time, he cannot be examined by the Ombudsman. Again, the objection can be disposed of on the same basis as Irwin’s. That is, Hession cannot be examined in regard to his general duties as a member of the Saskatoon Police Force, but he can be examined on the restricted basis of his involvement in the investigation which was conducted by the Saskatoon Board as agent for the Saskatchewan Commission. Although Hession may not have been directly connected with the Saskatoon Board, he is subject to being summonsed by the Ombudsman as he is any other person able to give any information relating to any matter being investigated as contemplated by s. 22(2)(c) of the Ombudsman Act.

In conclusion, I find that the Ombudsman has jurisdiction to examine the applicants, Irwin and Hession, in the limited area which I have indicated. The application is therefore dismissed, but, in the circumstances, without costs.

Application dismissed.