Wednesday, January 21, 2009

Jackie Vautour

Mackin v. New Brunswick, 1987 CanLII 138 (NB C.A.)

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Date: 1987-10-23
Docket: 199/86/CA
Parallel citations: (1987), 82 N.B.R. (2d) 203 • (1987), 44 D.L.R. (4th) 730
URL: http://www.canlii.org/en/nb/nbca/doc/1987/1987canlii138/1987canlii138.html
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IN THE COURT OF APPEAL OF NEW BRUNSWICK

Angers, Hoyt and Ryan, JJ.A.

Date: 19871023

Docket: 199/86/CA

BETWEEN:

IAN P. MACKIN

APPLICANT

-and-

JUDICIAL COUNCIL BY VIRTUE OF THE PROVINCIAL COURT ACT

RESPONDENT

-and-

THE CHIEF JUSTICE OF THE COURT OF QUEEN'S BENCH OF NEW BRUNSWICK

RESPONDENT

-and-

RONALD C. STEVENSON

RESPONDENT

-and-

DAVID R. CLARK, Q.C.

RESPONDENT

DATE OF HEARING March 19, 1987

DATE OF DECISION October 23, 1987

REASONS FOR JUDGMENT BY Hoyt, J.A.

CONCURRING REASONS BY Angers, J.A.

DISSENTING REASONS BY Ryan, J.A.

COUNSEL:

Eric L. Teed, Esq., Q.C. for the Applicant

David T. Hashey, Esq., Q.C. for the Judicial Council

No one appeared for the Chief Justice of the Court of Queen's Bench of New

Brunswick

No one appeared for Ronald C. Stevenson

No one appeared for David R. Clark, Q.C.

BY THE COURT

The application is allowed. The resolution of the Judicial Council dated March 11, 1986 is brought into this Court and quashed. Judge Mackin is entitled to costs of $750.00 from the Attorney-General.

ANGERS, .J.A.

This is an application by way of judicial review in the first instance for an order prohibiting Mr. Justice Stevenson from conducting an inquiry under the provisions of the Provincial Court Act, R.S.N.B. 1973 c. p.21. At the hearing the applicant expanded upon his application to ask for an order quashing the resolution of the Judicial Council which directed that an inquiry be held with respect to the conduct of the applicant. The direction of the Judicial Council is in these words:

Following consideration of the report of Associate Chief Judge Arsenault that was received February 28, 1986 concerning the complaint of the Honourable David R. Clark, Q.C., Attorney General of New Brunswick in respect of the alleged misconduct, neglect of duty or inability to perform his duties by His Honour Judge Ian P. Mackin, a Judge of the Provincial Court of New Brunswick, the Judicial Council, under the authority of s.6.2 (4) of the Provincial Court Act Directs that an inquiry be held into that complaint and the report thereon of Associate Chief Judqe Arsenault.

(the underlining is mine)

Section 6.2(4) of the Act states:

6.2(4) Following consideration of a report received under subsection (3), [that is the report of the Chief Judge on his investigation and his attempt to resolve the matter] the Judicial Council may

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(d) direct that an inquiry be held.

In my opinion that section authorizes the Judicial Council, after having received a complaint and having sought a report of the Chief Judge, to consider that report and on the basis of that report to direct an inquiry into the complaint but not into the report. Accordingly, the order directing an inquiry to be held on the report of the Associate Chief Judge Arsenault exceeds the statutory authority of the Judicial Council.

To order an inquiry into the report of the Chief Judge is more than a mere error of procedure. Indeed, it may well be that the report will raise issues that were not raised in the complaint or it may include matters not referred to in the complaint or which may be the subject of a separate complaint. As was seen, the statutory authority of the Council is to direct an inquiry into the complaint. I would add that if a judge is appointed to inquire into a complaint as directed by the Judicial Council, then the Chief Judges investigative report ought not be provided to the inquiring judge. One would not give the jury a copy of a police report. The report of the Chief Judge is merely the tool whereby the Judicial Council decides to pursue a complaint further, that is by directing an inquiry. Under the Act it has no other value. Nor should it.

Since the order directing an inquiry exceeded the jurisdiction of the Judicial Council it must be quashed. In those circumstances it is not necessary to deal with the other issues raised. Nevertheless, I would add that I share

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the opinion of my colleague Mr. Justice Hoyt that the letter of Mr. Clark did not constitute a complaint and therefore could not be dealt with by the Judicial Council as a complaint. I am inclined to believe that it was precisely because the letter did not constitute a proper complaint alleging "misconduct, neglect of duty or inability to perform his duties", while the report of the Chief Judge did, that the Judicial Council felt obligated to direct an inquiry into the allegations contained in the report and thus worded the direction as it did.

[S]

J.-C. ANGERS, J.A.

HOYT, J.A.

In 1985 the Provincial Court Act, R.S.N.B. 1973, c.P-21 was amended to establish a Judicial Council. Its purpose was to consider complaints alleging misconduct, neglect of duty or inability to perform duties made against Judges of the Provincial Court. I will set forth some of the provisions in the Act which relate to the Judicial Council later in this decision.

This matter comes before us by way of an application for Judicial Review, having been referred by a Judge of the Court of Queen's Bench pursuant to Rule 69.04 of the Rules of Court. The application is made by Ian P. Mackin, a Judge of the Provincial Court of New Brunswick. He is attempting to quash proceedings by the Judicial Council which concern his activities as a Provincial Court Judge.

Judge Mackin has been a member of the Provincial Court since 1962. In January, 1985 he was presiding over the Provincial Court in Kent and Westmorland Counties. Apparently matters arose at that time which caused the Attorney General of New Brunswick, The Honourable David R. Clark, Q.C. to lodge, by way of letter dated January 16, 1986, what he considered a complaint or complaints about Judge Mackin. The letter, addressed to the Chairman of the Judicial Council, is as follows:

I am writing to you in your capacity as Chairman of the Judicial Council arising out of my concern with events in Westmorland and Kent Counties in the Provincial Court presided over by Judge Ian P. Mackin, particularly during the last two weeks.

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Statements have been made by Judge Mackin, or before him in his court, which raise questions concerning the proper administration of justice.

While I am satisfied from my review of events that the actions of other persons have been above reproach, my concern is that statements have been made in Judge Mackin's court which may cause a loss of confidence in the proper administration of justice.

In addition, Judge Mackin has given a series of statements, decisions or positions on court administration with regard to cases under the Young Offenders Act. The cumulative effect has been that the Youth Court has ceased to function in criminal cases under that Act in Westmorland and Kent Counties. Due to the serious events involved in some of these cases, including crimes of violence, the police and citizens have every right to the fears and dissatisfaction they have expressed. I am unable to determine whether or not this course of conduct is related to other events in past years and which may form a pattern or be traceable to the same cause.

I am referring these events to the Judicial Council after having conducted my own inquiries. I have not made inquiries directly of Judge Mackin to determine if he can provide a reasonable explanation of events. Our policy is to deal with the courts through their Chief Judge or Chief Justice, and not directly with individual judges; this policy is intended to respect judicial independence and avoid any appearance of bringing pressure to bear on individual judges. Naturally my inquiries have included Chief Judge Andrew G. Harrigan, but he has not been able to

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satisfactorily explain Judge Mackin's conduct.

I would therefore ask the Judicial Council to look into these matters. I will of course provide any information in the custody of the Department of Justice at your request.

Included with the letter to the Chairman of the Council was the text of a news release which counsel for the Judicial Council said in argument formed part of Mr. Clark's complaint to the Council. The text of the news release is as follows:

I have now had the opportunity of examining the comments and circumstances arising out of the Ronald Vautour case. Neither the director of public prosecutions, Robert Murray, nor any other individual in the Department of Justice contacted Judge Mackin, Chief Judge Harrigan or any one else concerning this case. The case is a result of a charge laid by federal government authorities and prosecuted by a federal prosecutor. The New Brunswick Department of Justice has no responsibility for this case and no interest in its outcome.

I am advised by Chief Judge Harrigan that contact in this case was initiated by a call to him from Judge Mackin early on the morning of January 8, 1386. In view of this most important fact, the criticism of the director of public prosecutions by Wendell Maxwell who represented Ronald Vautour in provincial court on January 8 was in error and was unfair. The problem has been and continues to be that Mr. Maxwell has

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issued critical comments without being in full possession of the facts.

In October of 1985 the director of public prosecutions did contact Chief Judge Harrigan and asked if it would be possible to take criminal charges involving Jackie Vautour and Yvonne (Mrs. Jackie Vautour) before another provincial court judge in the absence of Judge Mackin who was, at that time, on holidays. This was in accordance with departmental policy that no charges be laid before a provincial court judge, other than a judge assigned to that area, without advising the chief Judge and obtaining his agreement.

At that time the director of public prosecutions drew to Chief Judge Harrigan's attention comments by Judge Mackin made in court at Richibucto on February 6, 1985 to the effect that he has felt sympathy for Jackie Vautour and other former residents of Kouchibouguac park and he, Judge Mackin, felt his objectivity was suspect. As a consequence Judge Mackin had invited the Crown prosecutors to object to his presiding over such cases.

As attorney general, I am satisfied that the actions of the director of public prosecutions, Robert Murray, have been above reproach with respect to this matter. I am also satisfied that Chief Judge Harrigan's actions were proper and within his normal functions as chief judge of the court.

My examination of these and other matters which have come to my attention in the interim concerning Judge Ian P. Mackin and statements made by him have resulted in my concluding that this whole matter should be referred to the Judicial Council. I have done this

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today by letter to the chairman, Chief Justice Stuart G. Stratton.

Upon receipt of Mr. Clark's letter and news release the Chairman of the Judicial Council telephoned the Chief Judge of the Provincial Court, who is required by the Act to investigate complaints and report to the Judicial Council. The Chief Judge apprehended a possible conflict because some of the matters raised in the letter and news release had been previously discussed with him in his capacity of Chief Judge. Therefore he suggested, and the Judicial Council agreed, that the investigation be carried out by Associate Chief Judge Frederick J. Arsenault. Judge Arsenault carried out his investigation and reported to the Judicial Council. After considering Judge Arsenault's report, the Judicial Council by a resolution made on March 11, 1986 directed "that an inquiry [under s.6.2 (4) of the Act] be held into the complaint and the report thereon of Associate Chief Judge Arsenault" and requested the Chief Justice of the Court of Queen's Bench to appoint a Judge of the Court of Queen's Bench "to whom the matter shall be referred". As a result of this request Chief Justice Richard appointed Mr. Justice Ronald C. Stevenson. It was at this stage that Judge Mackin sought an order for judicial review.

Judge Mackin's application is based on two grounds. First, that the provisions in the Act relating to the Judicial Council are contrary to s.7 of the Canadian Charter of Rights & Freedoms because they affect his liberty and security in that, Judge Mackin submits, they permit him to be subject to disciplinary action without knowing the complaint and permitting him to give an explanation of his actions. Second, Judge Mackin submits that procedures taken

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preliminary to Judge Stevenson's appointment offended principles of fairness or natural justice and accordingly his appointment is tainted.

Rather than attempt to summarize the provisions of the Act relating to the Judicial Council, I set forth those provisions which have application.

6.1(1) There is hereby established a Judicial Council which shall be composed of

(a) the Chief Justice of New Brunswick, or a judge of The Court of Appeal of New Brunswick designated by him from time to time, who shall be chairman,

(b) subject to section 10.1, the chief judge [of the Provincial Court],

(c) a former' President of the Barristers' Society of New Brunswick who shall be appointed by the Council of that Society for a term of five years, and

(d) two persons who shall be appointed by the Lieutenant-Governor in Council for a term of five years.

6.2(1) The Judicial Council shall receive and refer to the chief judge for investigation all written complaints against a judge alleging any misconduct, neglect of duty or inability to perform his duties.

6.2(2) Where information in writing comes to the attention of the chief judge, whether by way of a complaint referred to him by the Judicial Council

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or otherwise, respecting alleged misconduct, neglect of duty or inability to perform his duties on the part of a judge, he shall investigate and may attempt to resolve the matter.

6.2(3) The chief judge shall report forthwith to the Judicial Council the results of an investigation under subsection (2) and the resolution thereof, if any.

6.2(4) Following consideration of a report received under subsection (3), the Judicial Council may

(a) dismiss the complaint,

(b) refer the matter back to the chief judge for further investigation,

(c) order that the chief judge issue a reprimand to the judge against whom the complaint was filed, or

(d) direct that an inquiry be held.

6.2(5) A judge who receives a reprimand issued pursuant to an order under paragraph 6.2(4)(c) may within thirty days after the receipt thereof forward a request to the Judicial Council for an inquiry.

6.2(6) Where a judge forwards a request under subsection (5), the reprimand shall be suspended ab initio pending the outcome of the inquiry.

6.2(7) Where the Judicial Council directs that an inquiry be held or receives a request from a judge under subsection (5), it shall refer the matter to a judge of The Court of Queen's Bench of New Brunswick selected by the Chief Justice of The Court of Queen's Bench of New Brunswick at the

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request of the Judicial Council, who shall conduct an inquiry in accordance with section 6.3.

…

6.3(1) A judge of The Court of Queen's Bench of New Brunswick to whom a matter is referred for inquiry under subsection 6.2(7) shall have all the powers of a commissioner under the Inquiries Act.

6.3(2) Where an inquiry is held, the judge whose conduct is the subject of inquiry shall be given reasonable notice of the time and place fixed for the holding of the inquiry, and he shall, by himself or his counsel, have full right to examine, cross-examine and re-examine witnesses and to produce evidence on his own behalf.

6.3(3) An inquiry shall be held in private unless the judge whose conduct is the subject of the inquiry requests that it be held in public or the Judicial Council determines that there are compelling reasons in the public interest that it be held in public.

6.3(4) Upon completion of the inquiry, the judge of The Court of Queen's Bench of New Brunswick shall report his findings to the Judicial Council as to the alleged misconduct, neglect of duty or inability to perform his duties of the judge whose conduct is the subject of the inquiry.

6.3(5) The Judicial Council shall give a copy of the report of the findings of the inquiry to the judge whose conduct is the subject of the inquiry and shall advise the judge of his right to make representations to it respecting the report prior to the taking of action by

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the Judicial Council under subsection (6).

6.3(6) Based on the findings contained in the report, the Judicial Council may

(a) dismiss the complaint,

(b) direct that a previously issued reprimand be revoked or that it be confirmed and that suspension of the reprimand under subsection 6.2(6) be lifted,

(c) order that the chief judge issue a reprimand to the judge whose conduct was the subject of the inquiry, or

(d) recommend to the Lieutenant-Governor in Council that the judge whose conduct was the subject of the inquiry be removed from office.

…

6.3(8) The Judicial Council shall report to the person who made the complaint against the judge and to the Minister [of Justice] on the actions taken by the Judicial Council under subsection 6.2(4) or subsection (6), but such report shall not be made public unless the Judicial Council determines that there are compelling reasons in the public interest that it be made public.

…

6.3(10) The Lieutenant-Governor in Council shall, on the receipt of the Judicial Council's recommendation under subsection (6), remove the judge from office.

6.3(11) Where a judge is removed from office, a copy of the Order in Council and all reports, evidence and

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correspondence relating thereto shall be laid before the Legislative Assembly by the Minister if then in session or within the first fifteen days of the next ensuing session.

Section 6.2(1) obliges the Council to refer to the Chief Judge for investigation all written complaints against a Judge which alleges his misconduct, neglect of duty or inability to perform his duties. Section 6.2(2) obliges the Chief Judge to investigate a complaint when it is referred to him by the Judicial Council or when information in writing comes to his attention. There is one difference between the English and French texts of s.6.2 (1). The English text provides that the Chief Judge "shall investigate and may attempt to resolve the matter" while the French text obliges the Chief Judge to both investigate and attempt to resolve the matter.

Then, after his investigation, the Chief Judge reports the results of his investigation and the resolution thereof, if any, to the Judicial Council. Upon receipt of the Chief Judge's report the Judicial Council has four possible courses of action. It may either dismiss the complaint (s.6.2 (4)(a)), require further investigation by the Chief Judge (s.6.2 (4)(b)), order the Chief Judge to issue a reprimand against the Judge (s.6.2 (4)(c)), or direct an inquiry to be held (s.6.2 (4)(d)). If the last alternative is chosen the Council must request the Chief Justice of the Court of Queen's Bench to refer the matter to a Judge of that Court who shall conduct an inquiry in accordance with s.6.3 of the Act.

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It was the last alternative which was followed here. The Judicial Council treated the letter and press release from Mr. Clark as a complaint against Judge Mackin. It referred the matter to the Associate Chief Judge for investigation and, after considering his report, determined that an inquiry should be held pursuant to s.6.3 of the Act. In response to the Council's request, as noted, Chief Justice Richard appointed Mr. Justice Stevenson to conduct the inquiry. His inquiry has been stayed pending this decision.

I will now return to the two grounds upon which this application is based.

First, Judge Mackin questions the validity of "the provisions" of the Provincial Courts Act, saying that s.7 of the Canadian Charter of Rights & Freedoms has been violated because, as stated, they subject him to disciplinary action in a procedure which does not permit him to know the complaint or to give an explanation. Section 7 of the Charter provides:

Everyone has the right to life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The provisions about which Judge Mackin complains establish a Judicial Council for the purpose of investigating complaints about Provincial Court Judges. The

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final disposition could result in discipline. While there is debate as to the extent of the application of s.7, that is, whether liberty and security of the person can be said to extend to a person's right to work (for example, see Re Mia and Medical Services Commission of British Columbia 1985 CanLII 148 (BC S.C.), (1985), 17 D.L.R. (4th) 385; R. v. Videoflicks (reflex-logo) reflex, (1984), 14 D.L.R. (4th) 10; and Charboneau et al. v. College of Physicians & Surgeons of Ontario (reflex-logo) reflex, (1985), 22 D.L.R. (4th) 303), I cannot think that s.7 goes so far as to prohibit the establishment of a mechanism for the purpose of investigating complaints which may result in disciplinary action. Nor does the enabling statute have to establish in detail the procedure to be followed by the Judicial Council in its deliberations.

This brings us to the second ground of application, namely that principles of procedural fairness or natural justice have not been observed in the proceedings here. Even if s.7 of the Charter does not assist Judge Mackin by striking down the provisions in the Act which relate to the Judicial Council nevertheless principles of fundamental justice respecting its procedure have application. As Lord Russell in Fairmount Investments Ltd. v. Secretary of State for the Environment, [1976] 1 W.L.R. 1255 said at p. 1263:

[It] is .to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in the particular procedures, compliance with those principles.

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Judge Mackin's complaint is threefold. First, that the letter of Mr. Clark to the Judicial Council was not a complaint and thus the proceedings were not properly initiated. Second, that he was not given a copy of the letter or complaint so that he could have an opportunity to explain his position to the Associate Chief Judge when his investigation was taking place. Third, that only the Chief Judge could conduct the investigation.

It has been seen that the Judicial Council can only receive a complaint which alleges misconduct, neglect of duty or inability to perform his duties. It then refers "the matter" to the Chief Judge for investigation. A complaint, in my view, made against a Judge must be expressed in clear terms. I cannot read into Mr. Clark's letter and enclosed press release a complaint against Judge Mackin alleging misconduct, neglect of duty or inability to perform his duties. It is imprecise in its allegations and is nothing more than a request for the Judicial Council to investigate and see whether it could uncover misconduct, neglect of duty or inability on the part of Judge Mackin to perform his duties.

The requirement for a specific complaint or complaints is twofold. Not only must the Judicial Council know what they are being asked to consider but the Judge against whom the complaint is made must know what allegations he faces. In this context the letter and press release fall short of a complaint. Mr. Clark asked the

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Judicial Council to investigate two situations, namely, statements "made by Judge Mackin or before him in his court, which raise questions concerning the proper administration of justice and a "series of statements, decisions or positions on court administration with regard to cases under the Young Offenders Act".

There is, of course, an appeal procedure to deal with decisions of Judge Mackin with which the Crown does not agree. Otherwise the letter is concerned with statements made by Judge Mackin in his Court. If it is these statements which Mr. Clark wishes the Judicial Council to consider, those statements should, insofar as possible, in my opinion, be detailed both as to what was said and when and where they were said. The news release accompanying the letter does provide more detail than the letter itself in that a specific case is mentioned. However, the news release seems more aimed at a lawyer involved in the case rather than at Judge Mackin himself, and accordingly, the news release cannot elevate the accompanying letter to a level of a complaint as envisaged by the Act.

Thus, in my opinion, because Mr. Clark's letter to the Judicial Council is not a complaint it cannot be dealt with by the Judicial Council.

Because of this conclusion it is not necessary to deal with the other grounds advanced by Judge Mackin, except to say that if the letter and enclosure constituted a complaint it is difficult to see how Judge Mackin could answer the complaint without the copies being given to him.

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For these reasons, I would allow the application and bring into this Court and quash the resolution of the Judicial Council dated March 11, 1986 which directs an inquiry into Judge Mackin's conduct. Judge Mackin is entitled to costs of $750.00 from the Attorney-General.

[S]

W. L. HOYT, J.A.

RYAN, J.A.

By order of Mr. Justice Higgins, a Notice of Application for Judicial Review by His Honour Ian P. Mackin, a Judge of the Provincial Court, has been referred directly to the Court of Appeal for determination. The question referred to the Court of Appeal concerns the validity of the appointment of Mr. Justice Ronald C. Stevenson to conduct an inquiry under the Provincial Court Act. The applicant, His Honour Ian P. Mackin, a Judge of the Provincial Court, seeks an order of prohibition against Mr. Justice Stevenson, to prevent him from conducting the inquiry into an alleged complaint by the Attorney General of New Brunswick. During the hearing of the appeal, Judge Mackin also asked for an order to quash the resolution of the Judicial Council which directed that an inquiry be held concerning the alleged complaint. The alleged complaint is dated January 16, 1986 and was hand delivered to the Chief Justice of New Brunswick in his capacity as Chairman of the Judicial Council. The Judicial Council is empowered under the Provincial Court Act, R.S.N.B. 1973, c.P-21, to "receive and refer to the Chief Judge for investigation all written complaints against a [Provincial Court] Judge alleging any misconduct, neglect of duty or inability to perform his duties". The "Chief Judge" referred to in the Act is the Chief Judge of the Provincial Court. At the time, it was His Honour Judge Andrew G. Harrigan.

Instead of referring the matter to the Chief Judge, the Judicial Council referred it to the Associate Chief Judge, His Honour J. Frederic Arsenault, because of certain conversations which had already taken place between Judge Mackin and the Chief Judge. Chief Judge Harrigan was

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a member of the Judicial Council to which the Attorney General's letter had been addressed.

Associate Chief Judge Arsenault conducted an investigation and reported, in writing, to the Judicial Council. Upon the instructions of the Judicial Council, he refused to give a copy of the Attorney General's letter of complaint to Judge Mackin, or to his counsel. The refusal to provide Judge Mackin with a copy of the complaint is curious and, in my opinion, a serious error. Judge Mackin was immediately entitled to the unabridged particulars of the allegations against him. Judge Arsenault was only allowed to paraphrase the contents of the letter. This is an inadequate providing of partial facts. Following the receipt of Judge Arsenault's investigative report, the Judicial Council directed that an inquiry be held. For this purpose the Chief Justice of the Court of Queen's Bench, under s.6.2 (7), selected Mr. Justice Stevenson. It was after Mr. Justice Stevenson was seised with the case that a copy of the Attorney General's letter of January 16, 1986 was directed to be given to Judge Mackin.

Judge Mackin takes issue with the appointment of Mr. Justice Stevenson who, he says, was appointed as persona designate under the Provincial Court Act. He attacks various alleged irregular procedures followed by the Judicial Council such as: accepting a letter as a complaint which was not a complaint under the Act; authorizing an investigation by the Associate Chief Judge instead of the Chief Judge; and refusing to provide a copy of the alleged complaint. In order to determine whether Mr. Justice Stevenson was properly appointed and to determine which

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court ought to answer the matters raised by the defence, one must resolve the issue of the appointment under the Act.

Complaint

Is the letter to the Judicial Council by the Attorney-General a written complaint against a Judge alleging misconduct, neglect of duty or inability to perform his duties under the Provincial Court Act? Section 6.2(1) reads:

The Judicial Council shall receive and refer to the chief judge for investigation all written complaints against a judge alleging any misconduct, neglect of duty or inability to perform his duties.

The letter is very general in nature and lacks specificity as to what Judge Mackin is alleged to have done. A conclusion however has been drawn by the Attorney-General that "the Youth Court has ceased to function in criminal cases under [the Young Offenders Act] in Westmorland and Kent Counties". It is open to one to imply that Judge Mackin may be the cause of this. The Attorney General asked the Judicial Council "to look into these matters". The Judicial Council accepted the letter as a "complaint", caused an investigation to be made and directed that an inquiry be held. I am not prepared to find, at this time and on this reference, that the Judicial Council is wrong in accepting the Attorney General's letter as a complaint within the meaning of the Provincial Court Act. The issue of whether the letter is a complaint should not be decided

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by this Court but should be left to the Judge on the inquiry. I hold a similar view with respect to the legality of appointing the Associate Chief Judge of the Provincial Court to conduct the investigation in place of the Chief Judge and of the legality of the decision and direction of the Judicial Council that an inquiry be held. At an inquiry the Judge would have the benefit of having before him all pertinent documents, of hearing witnesses, and of the full arguments of counsel.

The Attorney General as Complainant

The unique role of the Attorney General, as first law officer of the Crown, may place his office in a future delicate position if he is the complainant under the Provincial Court Act. These potential perils would have to be dealt with carefully by the then holder of the office, if the results of the inquiry and decision of the Judicial Council are unfavourable to the Judge in question.

The Attorney General is the guardian of the public interest. He, above all ministers, is charged with responsibility for the administration of justice. It is his duty to concern himself with matters of a public nature because the people of this province have a continuing interest in seeing that laws are obeyed; and that all officers of the law, within the different levels of the justice system, do not abrogate their responsibilities or defy the tenets of their appointment or position. In matters related purely to the administration of justice, the Attorney General, because of the strength of his office, is

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an appropriate person to bring his concerns about the conduct of any provincial court judge, before the Judicial Council. It then becomes the duty of the Judicial Council, following the procedures set forth in the Provincial Court Act, to deal with the validity of the concerns expressed by the Attorney General if they are received under s.6.2 (1) as a complaint. If the Attorney General is in error, he is answerable to the legislature for his conduct. Until and unless any such error is referred to the legislature, it is the duty of the Attorney General to inform himself of the facts and to make the ultimate decision, on his own initiative, whether to complain or advise the Judicial Council of what he perceives to be legitimate matters of concern within the administration of justice in the Province. This he has done, using the vehicle established by government, the Judicial Council, as the action unit to investigate and address these concerns.

Persona Designata

In 1982 the Supreme Court of Canada criticized the judicially created notion of persona designata, particularly in relation to federally appointed Judges. The Court held that the concept can be readily done away with, without prejudice to legal principle. Mr. Justice Stevenson, who was selected by the Chief Justice of the Court of Queen's Bench to conduct the inquiry, is a federally appointed Judge under s.96 of the British North America Act, 1867. If Mr. Justice Stevenson's selection in the Mackin Inquiry is as persona designata, he cannot go behind his appointment to determine the validity and

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fairness of procedural steps leading to his selection by the Chief Justice. If, however, Mr. Justice Stevenson is acting in his capacity as a s.96 Judge, he may consider all matters which would normally come before him as a Judge of the Court of Queen's Bench, Trial Division. In Herman et al. v. The Deputy Attorney General of Canada, 1978 CanLII 177 (S.C.C.), [1979] 1 S.C.R. 729, Chief Justice Laskin said at p. 736:

The concept of persona designata came from the Courts and it can be modified or abolished by the Courts. In my view, I think this Court should declare that whenever a statutory power is conferred upon a Judge or officer of a Court, the power should be deemed exercisable in official capacity as representing the Court unless there is express provision to the contrary.

and said at p. 749:

Prima facie, Parliament should be taken to intend a judge to act qua judge whenever by statute it grants powers to a judge. He who alleges that a judge is acting in the special, capacity of persona designata must find in the specific legislation provisions which clearly evidence a contrary intention on the part of Parliament. The test to be applied in considering whether such a contrary intention appears in the relevant statute can be cast in the form of a question: is the judge exercising a peculiar, and distinct, and exceptional jurisdiction, separate from and unrelated to the tasks which he performs from day-to-day as a judge, and

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having nothing in common with the court of which he is a member?

In Minister of Indian Affairs v. Ranville, 1982 CanLII 202 (S.C.C.), [1982] 2 S.C.R. 518, Mr. Justice Dickson delivered the judgment for Laskin, C.J., Estey, McIntyre and Chouinard, JJ.A; Ritchie and Beetz, JJ.A. concurred in the result. Mr. Justice Dickson said at p. 525:

I was rather of the opinion that this troublesome notion of persona designata had been given its quietus in the recent Herman decision. The Chief Justice's aversion in Herman to the concept of persona designata could not have been more evident (at pp.731-32):

. . . it is high time to relieve the Courts of the interpretative exercises that have been common in this country when they think that a decision has to be made whether a statutory jurisdiction has been vested in a Judge qua Judge or as persona designata. More than fifty years ago, D. M. Gordon, one of Canada's outstanding scholarly practitioners, wrote in the Canadian Bar Review (see (1927), 5 Can., Bar Rev. 174, at p. 185) that "the whole persona designata conception could be scrapped without the slightest inconvenience or the least distortion of legal principles". I agree completely with this sentiment.

In the test formulated in Herman I endeavoured to confine the notion of persona designata to the most exceptional circumstances. The Federal Court of Appeal and the provincial

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courts which have had to deal with the notion since the Herman decision have grasped how exceptional recourse to persona designata must be. So far as I am aware, in applying the test in Herman, no federally-appointed judge has yet been found to be a persona designata…

In my opinion, Mr. Justice Stevenson is acting as a Judge of the court of Queen's Bench. As such, he would hear witnesses and make findings on fact and law as in the course of his normal duties. He would not be precluded from considering matters relating to the procedures leading to his selection under the Provincial Court Act or to the various irregularities complained of by Judge Mackin, including judicial independence, fairness in procedure and the Charter. The Act does not specify that the Judge selected by the Chief Justice of the court of Queen's Bench is persona designata, nor does the Act preclude the Chief Justice from naming a different Judge, if for any reason the Chief Justice should change his mind, or if the Judge selected is unable to act. I would hold that his appointment to conduct the inquiry is as a Judge of the Court of Queen's Bench and not as persona designata. His adjudicative powers must not be fettered by the uncertainty of the laws relating to persons who act as persona designata. The Provincial Court Judge in this case is entitled to be relieved of that same uncertainty.

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Conclusion

I conclude that Mr. Justice Stevenson is acting as a Judge under s.96. I would hold that this Court has no jurisdiction to entertain an application for judicial review to quash his appointment or prohibit him from proceeding with the inquiry during which he would deal with the other issues raised by the appellant in this Court. I would make no order as to costs.

[S]

PATRICK A. A. RYAN, J.A.

Posted by Richard A. Harris at 4:18 AM

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