Parliamentary Research Branch CONSTITUTIONAL LIMITS ON PROVINCIAL INQUIRIES: THE STARR DECISION

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1 Mini-Review MR-59E CONSTITUTIONAL LIMITS ON PROVINCIAL INQUIRIES: THE STARR DECISION Jane Allain Christopher Morris Law and Government Division 24 April 1990 Revised 18 September 1992 Library of Parliament Bibliothèque du Parlement Parliamentary Research Branch

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3 CONSTITUTIONAL LIMITS ON PROVINCIAL INQUIRIES: THE STARR DECISION BACKGROUND In early 1989, a number of newspapers alleged that Patricia Starr, the President and Chairperson of the Board of the Toronto section of the National Council of Jewish Women in Canada, a registered charity, had made contributions of approximately $90,000 to 25 politicians, most of them Ontario Liberals. It was also alleged that these funds had come from a provincial sales tax rebate for a non-profit housing project built and managed for the Toronto section by a real estate development firm, Tridel Corporation Inc. As a result of further allegations and speculation in the media and on the floor of the Ontario Legislative Assembly concerning the relationship between Ms. Starr, the charity, and various elected and unelected public officials, a number of provincial investigations were initiated. On 12 June 1989, Attorney General Ian Scott, as Acting Solicitor General, announced that the Commission on Election Finances would inquire into possible breaches of the Ontario Election Finances Reform Act. He also announced that the Conflict of Interest Commissioner had been called upon to reveal any conflicts of interest involving members of the Ontario Legislature, and that the Ontario Provincial Police would look into possible violations of the Criminal Code or provincial statutes. On 22 June 1989, the Executive Director of Premier David Peterson s Office, Gordon Ashworth, resigned, after revealing that Ms. Starr had arranged in September 1987 for his family to receive a new refrigerator and to have his house painted by a Tridel-related company at no cost to himself. The following day, the Premier announced that he had ordered a public judicial inquiry into the allegations made about Patricia Starr s relationships or dealings with any person or corporation, including Tridel Corporation, for whom she may have acted, and any elected and appointed officials, including Gordon Ashworth.

4 2 A Commission of Inquiry was appointed pursuant to the Public Inquiries Act of Ontario by Order in Council dated 6 July This provided for the appointment of the Hon. Mr. Justice Lloyd Houlden as Commissioner under terms of reference which became of crucial importance in the ultimate decision of the Supreme Court of Canada in this case on 5 April Under the terms of reference, Mr. Justice Houlden was prohibited from expressing any conclusion of law regarding the civil or criminal responsibility of any individual or organization. He was directed to investigate the nature and extent of dealings between Patricia Starr and Tridel Corporation and its related companies and its and their representatives, officers, employees or officials and elected and unelected public officials... private individuals, corporation, (and) unincorporated bodies and charities in relation to elected and unelected public officials. Significantly, the Commissioner was also directed by the terms of reference:... to inquire into and report upon any such circumstances or dealings where, in the opinion of the Commissioner, there is sufficient evidence that a benefit, advantage or reward of any kind was conferred upon an elected or unelected public official or upon any member of the family of any elected or unelected public official, or where, in the opinion of the Commissioner, there is sufficient evidence that there was [an] agreement or attempt to confer a benefit, advantage or reward of any kind upon an elected or unelected public official or upon any member of the family of an elected or unelected public official. This clause borrows liberally from the wording of section 121 of the Criminal Code which is captioned Frauds on the Government and which contains the offence popularly described as influence peddling. This wording was the central focus of the majority judgment of the Supreme Court of Canada. With Mr. Justice Houlden presiding, the inquiry into these allegations began on 18 September 1989; its proceedings were broadcast on television. Following the Commissioner s opening statement, lawyers for Ms. Starr, Tridel Corporation, Gordon Ashworth and Mario Giampietri, a vice-president of Tridel challenged the competence of the province to establish the inquiry and argued that, should charges result, the rights of their clients to a fair trial would have been violated. After making these arguments unsuccessfully before

5 3 Mr. Justice Houlden, on appeal to the Divisional Court and, afterwards, before the Ontario Court of Appeal, the appellants sought to bring their case to the Supreme Court of Canada. Leave to Appeal was granted by the Supreme Court on 26 January 1990, arguments were heard on 8 March, and the Court s decision granting the appeal in favour of the appellants and declaring the inquiry ultra vires (beyond the constitutional powers of) the province was rendered on 5 April. LEGAL ISSUES constitutional issues: There were five issues raised by this Appeal, the first three of which were 1. Whether the Order in Council constituting the inquiry was ultra vires the Province of Ontario as being a matter within the exclusive jurisdiction of the Parliament of Canada, pursuant to s. 91(27) of the Constitution Act, 1867 ; 2. Whether the Order in Council infringed or denied the rights guaranteed by ss. 7 to 14 of the Canadian Charter of Rights and Freedoms ; 3. If the Order in Council did infringe or deny these rights, whether the Order in Council was justified in accordance with s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982 ; 4. Whether the inquiry s terms of reference exceeded established legal principles by requiring the Commissioner to investigate the conduct of named persons (i.e., Patricia Starr and Tridel Corporation) as to their civil or criminal responsibility while expressly prohibiting him from expressing any conclusions regarding their civil or criminal responsibility ; and 5. Whether, if the Order in Council was indeed constitutional, the (i)nquiry (could) proceed in the face of the ongoing police investigation, and (if) so, what procedure (was) mandated by the Order in Council and the necessity not to interfere with the rights guaranteed by the Charter. THE DECISION OF THE SUPREME COURT OF CANADA In delivering the judgment of the majority of the Court (Madam Justice L Heureux-Dubé being the only dissenting voice), Mr. Justice Lamer found it unnecessary to pronounce upon other than the first issue. However, passing references indicate His Lordship s views on the other issues, particularly the fourth.

6 4 Mr. Justice Lamer, from the outset of his judgment, said that the inquiry was ultra vires the Province of Ontario because in substance it served as a substitute police investigation and preliminary inquiry, with compellable accused, into a specific offence defined in s. 121 of the Criminal Code, alleged to have been committed by one or both of the named individuals, Patricia Starr and Tridel Corporation Inc. Mr. Justice Lamer reviewed the fairly extensive body of jurisprudence concerning the division of constitutional powers as it relates to Commissions of Inquiry which, in the main, has emanated from the Supreme Court. He observed that the thread flowing throughout all of them is that the inquiry process cannot be used by a province to investigate the alleged commission of specific criminal offences by named persons. The use of the inquiry process in that way, having regard for the ability to coerce those named individuals to testify, would in effect be circumventing the criminal procedure which is within the exclusive jurisdiction of Parliament. His Lordship noted that (w)hile the province is within its jurisdiction to investigate allegations or suspicions of specific crime with a view to enforcement of the criminal law by prosecution of particular individuals, it must do so in accordance with federally prescribed criminal procedure and not otherwise, as for example, by the inquiry process. As an incidental aspect of the provincial inquiry process, certain alleged criminal acts may be highlighted. However, this is acceptable only if the predominant feature that outweighs the competing, incidental aspect concerns more general questions which fall within the scope of provincial constitutional authority over matters involving the administration of justice. Thus, the investigation of the incidence or characteristics of crime within a province or the investigation of the operation of provincial agencies in the field of law enforcement, such as the Keable Commission of Inquiry into alleged police wrongdoing in Quebec, rather than the investigation of specific crimes, is not objectionable. Mr. Justice Lamer, in reviewing the jurisprudence in this area, highlighted the fact that in certain of these cases no names were mentioned in the terms of reference. While it is not, he said, an established legal principle that an inquiry s terms of reference may never contain the names of specific individuals... it is the combined and cumulative effect of the names together with the incorporation of the Criminal Code offences that renders this particular inquiry ultra vires the province.

7 5 Of further import were the terms of reference, which name private individuals and do so in reference to language that is virtually indistinguishable from the parallel Criminal Code provision. It is those terms of reference, His Lordship said, that require the Commissioner to investigate and make findings of fact that would in effect establish a prima facie case against the named individuals sufficient to commit those individuals to trial for the offence in s. 121 of the Criminal Code. In this way, the net effect of the inquiry was that it acted as a substitute police investigation and preliminary inquiry. Had the Commissioner been given a broader mandate to inquire into the relationship of charities and public officials, for example, the Houlden inquiry would not have been held to be ultra vires the province. In short, said Mr. Justice Lamer, there (was) a complete absence of any broad, policy basis for the inquiry nor was it designed to restore confidence in the integrity and institutions of government or to review the regime governing the conduct of public officials. Any such objectives are clearly incidental to the central feature of the inquiry, which is the investigation and the making of findings of fact in respect of named individuals in relation to a specific criminal offence. CONCLUSION In declaring the Houlden inquiry to be ultra vires the Province of Ontario, Mr. Justice Lamer, on the second last page of his judgment, succinctly summarized his reasoning.... It is clear... that provinces should be given ample room within their constitutional competence to establish public inquiries aimed at investigating, studying and recommending changes for the better government of their citizens. What a province may not do, and what it has done in this case, is enact a public inquiry, with all its coercive powers, as a substitute for an investigation and preliminary inquiry into specific individuals in respect of specific criminal offences. This is an interference with federal interests in the enactment of a provision for a system of criminal justice as embodied in the Criminal Code. Although the inquiry hearings were halted, criminal proceedings were not. In March 1991, Patricia Starr was convicted of multiple violations of the Ontario Election Finances Act and later fined $3,500. In June 1991, Ms. Starr pleaded guilty to charges of fraud and criminal breach of trust, for which she received a six-month jail term. Ms. Starr was paroled in late August 1991, after serving two months at the Vanier Centre for Women.