McGILL LAW JOURNAL
(Vol. 21
Natural Justice Prevails: A Comment on
Bachinsky and Cantelon v. Sawyer
The decision of Shannon J. in Bachinsky and Cantelon v. Sawyer’
is of interest to an Administrative lawyer for three reasons. First, it
deals with the applicability of the principles of natural justice even
in the face of a broad statutory power allowing a police chief to make
a comprehensive code of discipline for his force. Secondly, it deals
with the right to counsel. And thirdly, it considers whether The
Alberta Bill of Rights2 in fact has entrenched the principles of
natural justice.
The facts of the case are straightforward. A complaint had been
lodged against Constables Bachinsky and Cantelon concerning their
arrest of Margaret Unger. This complaint was investigated by
Inspector Brown as the nominee of Chief Sawyer. The proceedings
were taken pursuant to the “Code to Regulate the Conduct and
Discipline of the Calgary Police Service” which was itself very
detailed (note the numbering system), very formal, and authorized
by section 26 of The Police Act, 1973.r An appeal from any decision
made at this hearing lay to the Law Enforcement Appeal Board.
Clause 036.04 of the Code sets out the accused’s rights to be re-
presented at the hearing:
Representation by Counsel or Agent
An accused member [of the police force] has the right to be represented
by an agent in proceedings before the Chief of Police or his designated
officer, and by counsel or agent in proceedings before the Law Enforce-
ment Appeal Board.
Clause 030.02 defines “agent” as “a member of the Calgary City
Police Department or a member of the Alberta Federation of Police
Associations”, and “counsel” as “a barrister or solicitor authorized
to practise in the courts of Alberta”. Inspector Brown, reading these
clauses literally, refused to permit the constables’ lawyer to parti-
cipate in the proceedings before him. The constables applied to the
1[1974] 1 W.W.R. 295 (Alta. S.C.). This style of the cause of action is some-
somewhat unorthodox. An application for a prerogative order would generally
be styled “R. v. Sawyer, ex p. Bachinsky and Cantelon”.
2 SA. 1972, c.1.
3 SA. 1973, c.44; s26 reads as follows:
26. Except when inconsistent with the provisions of this Act, the direction
of the police force with respect to discipline within the force.., is the
responsibility of the Chief of Police or any person acting for him.
1975]
COMMENTS – COMMENTAIRES
Trial Division of the Supreme Court of Alberta for an order prohibit-
ing Inspector Brown from continuing with the hearing.
Despite the very broad powers given by section 26 of The Police
Act to Chief Sawyer to implement a disciplinary code for his force,
Shannon J. held that the Act itself did not oust the principles of
natural justice and that any attempt by the Code to do so was
ultra vires. Further, because the wording of the Alberta Police Act
differs from the similar provisions in the federal R.C.M. Police Act,4
the decisions in R. and Archer v. White5 and Re Walsh and Jordan,’
cited by the respondent, did not apply. Nevertheless, counsel for the
respondent made a strong submission that this was a proper case
where the court’s residual discretion not to issue the order should
be applied.7 Counsel argued that this involved a para-military force,
and therefore the courts should not interfere lightly; that ample
provision was made for an appeal, and therefore a prerogative order
should not issue; that being a policeman was a “privilege” and not
a “right”; and that being represented by an agent (i.e., another
policeman) did not deprive the accused of their right to a fair hear-
ing. To his credit, Shannon J. was not seduced by these arguments
(which are continually raised in Administrative Law) and held that
his discretion had to be exercised judicially.
Only one point in Shannon J.’s reasoning on this question should
be queried. He stated:
In the course of argument counsel for the applicants claimed that the
hearing before Inspector Brown is a quasi-judicial hearing. Counsel for
the respondent conceded that it is such a hearing and no further argument
was pressed on that point. I find that it is a quasi-judicial proceeding and
that the presiding officer has an obligation to act judicially. It is, there-
fore, subject to the control of this Court through prohibition or certiorari
if intervention is justifiedS
Shannon J. appears to assume that a hearing must have a quasi-
judicial nature before the rules of natural justice apply, or before the
orders of prohibition or certiorari may issue. While it may be that
this particular hearing was obviously of a quasi-judicial nature (as
even the respondent’s counsel conceded), an examination of the
authorities in this area of the law indicates that prohibition and cer-
tiorari will lie even where there is no duty to act judicially or quasi-
judicially. Prohibition and certiorari will lie whenever a body is
4R.S.C. 1970, c.R-9.
5 [1956] S.C.R. 154, 114 C.C.C. 77, [1956] 1 D.L.R. (2d) 305.
6 [1962] O.R. 88, 132 C.C.C. 1, 31 D.L.R. (2d) 88.
7 Cf. R. v. Aston University Senate, ex p. Roffey [1969] 2 Q.B. 538.
8 Supra, f.n.1, 300.
McGILL LAW JOURNAL
[Vol. 21
under a duty to act fairly,9 even if it is not under the more rigorous
duty to act judicially or quasi-judicially. 10 Nor is the tautological
separation of merely “administrative” functions from “judicial” or
“quasi-judicial” ones any longer valid in Canada.” Indeed, one might
suppose that the decision of the Supreme Court of Canada
in
Calgary Power Ltd. v. Copithorne’2 would be different today.
The second interesting point in Shannon J.’s decision is his consi-
deration of the specific right to counsel. The point turned around
whether there was a breach of natural justice because clause 030.02
of the Code restricted the meaning of “agent” to “a member of the
Calgary City Police Department or a member of the Alberta Federa-
tion of Police Associations”. Therefore, at the initial hearing before
Inspector Brown, the constables appeared not to have the right to
employ the services of a barrister and solicitor. Respondent’s counsel
argued that this itself should not be held to be a breach of the
audi alteram partem rule because the accused could employ legal
counsel on appeal. Shannon J. did not accept this argument. On
appeal, the Law Enforcement Appeal Board was bound by the record
of what transpired at the initial hearing. If the accused were de-
prived of counsel before Inspector Brown, quite likely the record
which would have been sent up to the Law Enforcement Appeal
Board would not have reflected all of the legal or technical points
which the accused were entitled to have made on their behalf at
the initial hearing.
Central to this part of the decision is the fact that the appeal was
not an appeal de novo, but a far more restricted one. Therefore, a
breach of natural justice at the initial hearing would likely not be
cured on appeal. 3 Indeed this very point was made on strikingly
similar facts in an Ontario case heard exactly one month after
9 Board of Education v. Rice [1911] A.C. 179, 182.
0 In re H.K. [1967] 2 Q.B. 617, 630, [1967] 1 All E.R. 226, 231; R. v. Gaming
Board for Great Britain, ex p. Benaim and Khaida [1970] 2 Q.B. 417, [1970]
2 All E.R. 528 (CA.); In re Pergamon Press Ltd. [1971] Ch. 388, [1970] 3 All
E.R. 535 (CA.); Pearlberg v. Varty (Inspector of Taxes) [1972] 2 All E.R. 6,
[1972] 1 W.L.R. 534 (H.L.).
CA.).
“Lazarov v. Secretary of State of Canada (1973) 39 D.L.R. (3d) 738 (Fed.
12 [1959] S.C.R. 24.
13 See King v. University of Saskatchewan [1969] S.C.R. 678, 6 D.L.R. (3d) 120,
68 W.W.R. 745 (S.C.C.); Posluns v. Toronto Stock Exchange and Gardiner [1964]
2 O.R. 547, 654, 46 D.L.R. (2d) 210, 317 (Ont. H.C.); [1968] S.C.R. 330, 67 D.L.R.
(2d) 165 (S.C.C.); Leary v. National Union of Vehicle Builders [1970] 2 All
E.R. 713 (Ch.); and Ridge v. Baldwin [1964] A.C. 40, 79 (H.L.).
19751
COMMENTS – COMMENTAIRES
Shannon J. heard Bachinsky.14 While Shannon J. reached his decision
on the right to counsel by relying on English authorities, it is sub-
mitted that this rationale should be warmly welcomed into Canadian
Administrative Law.
In perhaps the most important aspect of his decision, Shannon J.
considered whether the principles of natural justice are enshrined
in The Alberta Bill of Rights. 5 Section 1 of the Bill of Rights
provides as follows:
1. It is hereby recognized and declared that in Alberta there exist without
discrimination by reason of race, national origin, colour, religion or sex,
the following human rights and fundamental freedoms, namely: …
(b)
tection of the law.16
the right of the individual to equality before the law and the pro-
Section 2 of the Bill of Rights provides further:
2. Every law of Alberta shall, unless it is expressly declared by an Act
of the Legislature that it operates notwithstanding The Alberta Bill of
Rights, be so construed and applied as not to abrogate, abridge or infringe
or to authorize the abrogation, abridgment or infringement of any of the
rights or freedoms herein recognized and declared.’7
In finding that the broad language of section 26 of The Police Act,
1973 did not authorize the Police Chief to make a disciplinary code
ousting the principles of natural justice, Shannon J. held that it
would have required specific authority in the Act itself to do so.
The Supreme Court of Canada has, of course, construed a similar
clause contained in the Canadian Bill of Rights’s in a very different
manner.’ 9 But there is no reason why the Alberta courts must follow
A-G. Canada v. Lavell in interpreting a different statute. The inten-
tion of The Alberta Bill of Rights is clear; and if the decision of
Shannon J. is followed in the future, it will eliminate much argument
by inferior bodies that their sweeping actions are authorized by
broadly worded statutes which do not contain the express disclaimer
mentioned in section 2 of The Alberta Bill of Rights.
David Phillip Jones *
2 O.R. (2d) 183 (Holland J.).
14 Re Cardinal and Board of Commissioners of Police of Cornwall (1974)
15 Supra, fm.2.
1G Supra, f.n.1, 306 (italics added by ShannonJ.).
7Ibid. (italics added by Shannon I.).
18R.S.C. 1970, Appendix III.
19 A-G. Canada v. Lavell; Issac et aL. v. Bedard (1973) 38 D.L.R. (3d) 481, 23
C.R.N.S. 197; rev’g [1971] F.C. 347.
* Of the Faculty of Law, McGill University.
