Judgments

[1994] 1 F.C. 352

T-2251-92

S/Cst. Arthuro Nuosci (Applicant)

v.

The Royal Canadian Mounted Police and Commissioner N. D. Inkster (Respondents)

Indexed as: Nuosci v. Canada (Royal Canadian Mounted Police) (T.D.)

Trial Division, Gibson J.—Ottawa, June 30; Vancouver, September 17, 1993.

RCMP — Major service offences — Special constable falsely accusing fellow officer of substance abuse — Application for judicial review of Commissioner’s refusal to amend earlier decision dismissing appeal from Service Court’s recommendation of discharge — RCMP Act, s. 45.16(8) permitting Commissioner to rescind, amend earlier decision on presentation of new facts or where error of fact or law — Alleged new facts: (1) RCMP not sharing in timely manner complaint received against witness testifying against applicant at Service Court hearing accusing said witness of offering woman drugs for sex; (2) applicant’s counsel not advising Service Court of applicant’s HIV positive status as mitigating factor — Commissioner correctly holding facts not new — Service Court aware of complaint against witness — Applicant aware of HIV positive status, even if counsel not — No error of fact or law.

Constitutional law — Charter of Rights — Life, liberty and security — R. v. Stinchcombe holding common law right to make full answer and defence given new vigour after inclusion in Charter, s. 7 — Whether Stinchcombe applied to disciplinary hearing of major service offence under RCMP Act, carrying punishment of imprisonment for up to one year — Application of test in R. v. Wigglesworth to determine whether proceedings in respect of criminal or penal matter — As true penal consequences herein, application of Stinchcombe principles considered — Whether denied highest procedural protection known to law — Obligation to disclose not absolute, but Crown’s discretion to determine relevance subject to judicial review — Commissioner correctly holding information not relevant to matter before Service Court.

This was an application for judicial review of the RCMP Commissioner’s refusal to rescind or amend his earlier decision dismissing the applicant’s appeal from the Service Court’s recommendation that the applicant be discharged. The applicant was a Special Constable in the RCMP. In 1988 he was charged with the major service offence of having conducted himself in a disgraceful manner contrary to paragraph 25(o) of the Royal Canadian Mounted Police Act. He had falsely accused a fellow officer, S/Cst. Divito, of substance abuse. Punishments that could be imposed upon conviction of a major service offence included: imprisonment for a term not exceeding one year; fine; loss of pay; demotion; loss of seniority or reprimand. The matter was heard by the Service Court. After a lengthy adjournment to allow the applicant to pursue access to certain information under the Access to Information Act and the Privacy Act, the Service Court found him guilty, recommended that he be discharged, imposed a fine and reprimand. The applicant appealed to the Commissioner who referred the case to the RCMP External Review Committee. It recommended that the appeal be dismissed, a conviction be registered on the disgraceful conduct charge, and that if the recommendation for dismissal be followed, the fine should be set aside. The Commissioner accepted that recommendation, along with the Trial Officer’s finding as to credibility. The applicant was dismissed in 1989. He filed a complaint with the Canadian Human Rights Commission, alleging that the RCMP was engaging in a discriminatory practice which deprived him of employment opportunities based on a disability i.e. HIV positive status. He alleged that he had tested HIV positive in June 1987, and that this information had come to the attention of his supervisor shortly thereafter through Divito. The applicant alleged that his condition was the real reason that he had been dismissed. The RCMP maintained that at the time of suspension and dismissal it was unaware of his alleged HIV positive status. The complaint was rejected and an application for section 18 relief against that decision was dismissed. The applicant then requested the Commissioner to rescind or amend his earlier decision pursuant to subsection 45.16(8), under which the Commissioner may rescind or amend his earlier decision on the presentation of new facts or where the Commissioner determines that there was an error as to any finding of fact or interpretation of law. The alleged new facts were that (1) the RCMP had not shared with the applicant in a timely manner information regarding a complaint that it had received that Divito had offered a woman drugs in exchange for sex; and (2) applicant’s counsel had not drawn the fact that the applicant had tested positive for the HIV virus to the attention of the Service Court as a mitigating factor before sentencing because he had been unaware of the fact. In R. v. Stinchcombe, the Supreme Court of Canada held that the common law right to make full answer and defence had acquired new vigour by virtue of its inclusion in Charter, section 7. The applicant argued that Stinchcombe and Charter, section 7 entitled him to disclosure of material implicating Divito because it related to Divito’s credibility, and Divito’s testimony was critical in the Service Court decision. The respondents argued that Stinchcombe (which dealt with a lawyer who had been charged with theft, breach of trust and fraud) did not apply to disciplinary hearings.

The issues were (1) whether the Force should have voluntarily produced, in a timely manner, documentation in its possession, without requiring the applicant to resort to the formal processes of the Access to Information Act and the Privacy Act to make full answer and defence to the case against him; (2) whether the Commissioner failed to recognize the mitigating effect of the applicant’s medical disability in imposing sentence.

Held, the application should be dismissed.

The Commissioner correctly concluded that the alleged new facts were not new. The issue of the complaint against Divito was raised when the Service Court first convened. Whether or not applicant’s counsel was aware of applicant’s medical status prior to the resumed Service Court proceedings, the applicant was aware of it. He also correctly concluded that there was no error as to any finding of fact or interpretation of law.

In R. v. Wigglesworth, a two-part test was formulated to determine if proceedings are in respect of a criminal or penal matter: (1) whether the matter is of a public nature intended to promote public order and welfare; and (2) whether there are “true penal consequences”. Where the two tests conflict, the “by nature” test must give way to the “true penal consequences” test. If an individual is subject to penal consequences such as imprisonment, he should be entitled to the highest procedural protection known to our law. The possibility of imprisonment for up to one year met the “true penal consequences” test and the application of the principles in Stinchcombe had to be considered. Stinchcombe held that the obligation of disclosure is not absolute, but the Crown’s discretion to determine relevance remains subject to judicial review. The Commissioner found that the information sought did not relate directly to the matter before the Service Court, but was sought to impeach credibility. He considered that the complaint had been investigated, and that charges had not been laid nor disciplinary action taken, and that the applicant had not pursued statutory access to the material although the hearing had been adjourned to give him the opportunity to do so. That the applicant did not effectively challenge through judicial review or otherwise the Service Court’s decision or the Commissioner’s first decision militated against a finding that an error was made in reaching the Commissioner’s later decision, particularly where no new facts were presented and where any alleged error was not based on any new information, other than the Stinchcombe decision which was not on all fours with the fact situation herein.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Access to Information Act, R.S.C., 1985, c. A-1.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 11(d).

Canadian Human Rights Act, R.S.C., 1985, c. H-6.

Criminal Code, R.S.C., 1985, c. C-46.

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.

Federal Court Rules, C.R.C., c. 663, R. 1618 (as enacted by SOR/92-43, s. 19).

Police Act, R.S.O. 1980, c. 381.

Privacy Act, R.S.C., 1985, c. P-21.

Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9.

Royal Canadian Mounted Police Act, R.S.C., 1985, c. R -10, ss. 25(o), 36(1), 45.14(1) (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16), 45.15 (as enacted idem), 45.16(8) (as enacted idem).

CASES JUDICIALLY CONSIDERED

APPLIED:

R. v. Wigglesworth, [1987] 2 S.C.R. 541; (1987), 45 D.L.R. (4th) 235; [1988] 1 W.W.R. 193; 61 Sask. R. 105; 37 C.C.C. (3d) 385; 60 C.R. (3d) 193; 81 N.R. 161.

DISTINGUISHED:

Trimm v. Durham Regional Police, [1987] 2 S.C.R. 582; Colledge v. Niagara Regional Police Commission (1983), 40 O.R. (2d) 340; 142 D.L.R. (3d) 655; 21 M.P.L.R. 19 (Div. Ct.).

CONSIDERED:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; (1991), 120 A.R. 161; [1992] 1 W.W.R. 97; 83 Alta. L.R. (2d) 193; 68 C.C.C. (3d) 1; 8 C.R. (4th) 277; 130 N.R. 277; 8 W.A.C. 161.

REFERRED TO:

Nuosci v. Canada (Human Rights Commission), T-2396-91, Jerome A.C.J., order dated 17/12/91, F.C.T.D., not yet reported.

APPLICATION for judicial review of the RCMP Commissioner’s refusal to rescind or amend his earlier decision dismissing the applicant’s appeal from the Service Court’s recommendation that the applicant be discharged. Application dismissed.

COUNSEL:

Douglas A. Quirt for applicant.

Dogan Akman for respondents.

SOLICITORS:

Flannagan, Greenwood, Quirt, Associates, Milton, Ontario, for applicant.

Deputy Attorney General of Canada for respondents.

The following are the reasons for order rendered in English by

Gibson J.:

RELIEF SOUGHT

This is an application for judicial review of a decision of the Commissioner of the Royal Canadian Mounted Police (the “Commissioner”) made pursuant to subsection 45.16(8) of the Royal Canadian Mounted Police Act,[1] (the “Act”), dated the 3rd day of June, 1992, whereby the Commissioner denied a request for recision or amendment of his earlier decision in the same matter dated the 13th day of October, 1989. Subsection 45.16(8) was added to the Act by R.S.C., 1985 (2nd Supp.), c. 8, s. 16. It reads as follows:

45.16….

(8) Notwithstanding subsection (7), the Commissioner may rescind or amend the Commissioner’s decision on an appeal under section 45.14 on the presentation to the Commissioner of new facts or where, with respect to the finding of any fact or the interpretation of any law, the Commissioner determines that an error was made in reaching the decision.

The relief sought is an order reinstating the applicant as a Special Constable in the Royal Canadian Mounted Police (the “Force”) or, in the alternative, an order for a new hearing, together with an order for his costs throughout these proceedings on a solicitor-and-client scale.

THE FACTS

The applicant was a Special Constable in the Force. On the 14th day of January, 1988, he was charged with the commission of a major service offence in that he did, between the 10th day of July, 1987 and the 18th day of August, 1987, at or near Toronto, conduct himself in a disgraceful manner contrary to paragraph 25(o) of the Act. Details of the disgraceful conduct, as described in an attachment to the charge, are as follows:

(a) On the 10th day of July 1987, you contacted Staff Sergeant William HILL of the York Regional Police Force Recruiting Section. You informed Staff Sergeant HILL that Special Constable Gabriel DIVITO, an applicant for engagement to the York Regional Police Force, had been in possession of two marijuana cigarettes on the 9th of July 1987 and had offered one of the marijuana cigarettes to you. You knew this to be false and falsely accused Special Constable Gabriel DIVITO of substance abuse.

(b) On the 29th day of July 1987, during an interview conducted by Constable Frank TAYLOR of the York Regional Police Force, you stated that Gabriel DIVITO had produced two marijuana cigarettes while in your car on the evening of the 9th day of July 1987 and that he offered one to you. You knew this to be false and repeated the false accusation against Gabriel DIVITO initially made on the 10th of July 1987.

(c) On the 18th day of August 1987, you made a false accusation against Special Constable Gabriel DIVITO during the course of giving ordered responses to questions put to you by Sergeant Robert HENDERSON in relation to a service investigation; to wit:

Q.  Have you ever witnessed a criminal or other statutory offence by another member?

A.   Yes.

Q.  What offence?

A.   Smoking marahuna. (sic)

Q.  When did this occur?

A.   In my vehicle.

Q.  I didn’t ask where, I asked when?

A.   First week in July, possibly 9/10, I know it was a week-night.

Q.  Who was the member?

A.   Cst. Divito.

Q.  What was your reaction?

A.   I was surprised.

Q.  Did he actually smoke marahuna (sic) or just possess it?

A.   No, no, he smoked it.

Q.  Did he offer you any?

A.   Yes he did …

(d) On the 7th day of July 1987, you were ordered by Corporal M. KENNY, your immediate supervisor, not to attend or frequent guard posts when not required to do so on duty. On the 6th day of August 1987, you went to a guard post, known as Bravo Primary, in contravention of the order given to you by Corporal M. KENNY.

The relevant portions of section 25 of the Act, at the relevant time, read as follows:

25. Every member who

…

(o) conducts himself in a scandalous, infamous, disgraceful, profane or immoral manner, or

…

is guilty of an offence, to be known as a major service offence, and is liable to trial and punishment as prescribed in this Part.

Punishments for major service offences were prescribed in subsection 36(1) of the Act which then read as follows:

36. (1) Any one or more of the following punishments may be imposed in respect of a major service offence:

(a) imprisonment for a term not exceeding one year;

(b) a fine not exceeding five hundred dollars;

(c) loss of pay for a period not exceeding thirty days;

(d) reduction in rank;

(e) loss of seniority; or

(f) reprimand.[2]

The applicant first appeared before a Service Court presided over by a Superintendent Thivierge on the 9th day of May, 1988. The matter was adjourned that day to allow the applicant to pursue access to certain documentation under the Access to Information Act[3] and the Privacy Act[4] that he considered essential to his defence. Whether or not this documentation in the possession of the Force should have been voluntarily produced in a timely manner in order to allow the applicant, without resort to the formal processes of the Access to Information Act and the Privacy Act, to make full answer and defence to the case against him remained one of the issues in dispute before me more than five years later.

The matter did not resume until the 17th day of January, 1989. It was completed the next day and a decision of guilty as charged was delivered on the 19th day of January, 1989. Sentencing took place on the 8th day of February of that year. Superintendent Thivierge recommended the applicant be discharged and imposed a fine of five hundred dollars and a reprimand.

The applicant appealed the Service Court decision to the Commissioner on the 10th day of March, 1989, pursuant to subsection 45.14(1) [as enacted idem] of the Act which reads as follows:

45.14 (1) Subject to this section, a party to a hearing before an adjudication board may appeal the decision of the board to the Commissioner in respect of

(a) any finding by the board that an allegation of contravention of the Code of Conduct by the member is established or not established; or

(b) any sanction imposed or action taken by the board in consequence of a finding by the board that an allegation referred to in paragraph (a) is established.[5]

The appeal was referred to the Royal Canadian Mounted Police External Review Committee on the 21st day of July, 1989, pursuant to subsection 45.15(1) [as enacted idem] of the Act which reads as follows:

45.15 (1) Before the Commissioner considers an appeal under section 45.14, the Commissioner shall refer the case to the Committee.

The Chairman of the Committee’s findings and recommendations are dated the 1st day of September, 1989. At page 26 of his findings and recommendations, the Chairman recommended to the Commissioner that “the appeal be dismissed, a conviction being registered on the charge of disgraceful conduct based on the false accusation. I further recommend that, should the recommendation for dismissal be followed, the fine ought to be set aside.”

The Commissioner disposed of the appeal on the 13th day of October, 1989 in the following terms:

As a starting point, I accept the advice of the ERC Chairman to divide the charge. Accordingly, I am concerning myself only with the evidence relating to the false accusation as support for the charge of disgraceful conduct. I also accept the decision of the Trial Officer as to the credibility of the witnesses. He had the opportunity to observe their demeanour on the stand and make judgments concerning veracity, and I am satisfied that he based his decisions upon the evidence received. In the absence of a patently obvious error I am therefore unwilling to substitute my judgment for his. Having thus accepted the credibility of S/Cst Divito, there is no question in my mind as to what occurred in this case.

In the present case the actions of S/Cst. Nuosci were premeditated and malicious. Although his ultimate motive remains unclear, I am satisfied that he deliberately set out to undermine the reputation of his fellow member, and the resulting damage is undoubtedly still being felt.

Whatever the ultimate parameters of disgraceful conduct, and I am satisfied that what is disgraceful can only be determined in considering the circumstances of each individual case, based on the evidence in this instance I have no difficulty in determining that the action of S/Cst. Nuosci in making false accusations of marihuana use and possession against his colleague is, in fact, disgraceful. I accordingly affirm the conviction registered.

Although S/Cst. Nuosci has not appealed the recommendation for discharge I must still deal with the matter because the Trial Officer in dealing with a case originating before June 30, 1988, can only recommend.

Several member witnesses testified that they would no longer wish to work with Nuosci in future, and I feel in the circumstances of this case their conclusions are entirely justified. I, too, have lost confidence in him. In the words of the ERC Chairman: “The offence committed is serious and required premeditation and malice. It attacks the integrity of individuals and undermines confidence. The damage done is almost irreparable and those who inflict such maliciousness on others cannot be trusted to fulfil the office of peace officer”.

A member of the Royal Canadian Mounted Police occupies a position of trust, involving the welfare of other members and citizens alike. To wilfully abuse that trust will in certain circumstances make it evident that the offending member is unworthy to continue as a member of the Force.

There are no mitigating factors in this case sufficient to outweigh the gravity of the misconduct or to counterbalance the behaviour exhibited. I am therefore accepting the recommendation for discharge.

The appeal is dismissed and I order S/Cst. Nuosci to resign from the Force within 14 days of being served a copy of this decision. If he has not tendered his resignation within the prescribed time, he is to be dismissed forthwith upon the expiration of the 14 days. Under the circumstances I find it appropriate to waive the $500.00 fine which was also imposed by the Trial Officer.

The conclusions in the first quoted paragraph regarding credibility of witnesses before the Service Court, particularly in relation to Special Constable Divito,[6] (Divito) are worthy of note.

The applicant did not tender his resignation from the Force within the time prescribed in the last quoted paragraph. As a result, as ordered by the Commissioner, the applicant was dismissed from the Force on the 24th day of October, 1989.

Between the date of his dismissal and the 21st day of August, 1990, the applicant unsuccessfully attempted to obtain judicial review of decisions taken in relation to him by the Force in both the Federal Court of Appeal and the Trial Division of the Federal Court.

On the 7th day of September, 1990, the applicant filed a complaint with the Canadian Human Rights Commission in which he alleged reasonable grounds for believing that the Force was engaging in a discriminatory practice in contravention of the Canadian Human Rights Act,[7] in that it was pursuing a policy or practice which deprived or tended to deprive the applicant and a class of persons similarly affected of employment opportunities on the basis of a disability, that disability being HIV positive status. In support of his complaint, the applicant alleged that he tested HIV positive on the 17th day of June, 1987 and that this information came to the attention of his immediate supervisor, shortly thereafter, through Divito. The applicant further alleged that this condition was the real reason he was dismissed from the Force and that “the incident regarding Constable Divito was just a smoke screen to cover the RCMP’s real motives.”

By letter dated the 24th day of September, 1991 the Canadian Human Rights Commission advised the Commissioner that it had decided to dismiss the complaint “because on the evidence the allegation of discrimination (was) unfounded.”

It is interesting to note that, in responding to the complaint before the Canadian Human Rights Commission, the Force indicated to the Commission that at the time it first suspended and later dismissed the applicant, it was unaware of his alleged HIV positive status.

By notice of motion dated the 19th day of September, 1991, the applicant applied under section 18 of the Federal Court Act[8] for relief against the decision of the Canadian Human Rights Commission dismissing his complaint referred to above. By order dated the 17th day of December, 1991, the Associate Chief Justice dismissed the application [Nuosci v. Canada (Human Rights Commission), T-2396-91, F.C.T.D., not yet reported]. The decision of the Associate Chief Justice is under appeal.

By letter addressed to the Commissioner dated the 29th day of November, 1991, counsel for the applicant drew to the attention of the Commissioner subsection 45.16(8) of the Act quoted above.

Counsel for the applicant requested that the Commissioner exercise his authority under that subsection to rescind or amend his own decision of the 13th day of October, 1989 in relation to the applicant on the basis that, first, the Force had failed to share information with the applicant, in a timely manner, that, counsel alleged, was essential to the applicant’s ability to make full answer and defence to the charges brought against him in Service Court, and second, at the time of the proceedings before the Service Court, counsel was unaware of the fact that the applicant had tested positive for the HIV virus. Counsel expressed the view that had he been aware of the applicant’s condition, he would have drawn it to the attention of the Service Court. He expressed the view that “it would have been a very significant mitigating factor that the Tribunal must take into account in determining the appropriate sentence for our client.”

By decision dated the 3rd day of June, 1992, the Commissioner denied the request for recision or amendment of his earlier decision. It is this decision of the Commissioner dated the 3rd day of June, 1992 that is now under review.

THE ISSUES

The points in issue are described in the following manner in the applicant’s factum:

Inkster[9] erred in failing to recognize the mitigating effect of the medical disability of the applicant (testing positive for Human Immunodeficiency Virus) in imposing the sentence.

Inkster erred in failing to recognize the duty imposed upon the Royal Canadian Mounted Police to provide details to the defence of an allegation that S/Constable Divito had offered a woman drugs in exchange for sexual favours, and to permit the defence the opportunity of bringing forth all of the evidence. This breach of duty denied the applicant the opportunity of providing a full answer and complete defence.

The Trial Officer erred in concluding that there was proof beyond a reasonable doubt that the alleged acts were in fact committed having regard to the failure of the RCMP to inform the Defence of the allegations against S/Constable Divito.

During the course of the hearing before me, the third point in issue was not separately argued. I understood counsel for the applicant to acknowledge that the third point is in fact an element of the second point. Thus, the points in issue are essentially a restatement of the issues that the Commissioner was invited to consider pursuant to subsection 45.16(8) of the Act by counsel’s letter of the 29th day of November, 1991.

ANALYSIS

It must be borne in mind that this is an application for judicial review of the Commissioner’s decision of the 3rd day of June, 1992. Neither the Commissioner’s decision of the 13th day of October, 1989 nor the decision of the Service Court of the 19th day of January, 1989 are under review. They are relevant to this matter only as the base from which the Commissioner’s later decision proceeds and as the Commissioner’s later decision bears on them. Under the authority of subsection 45.16(8), the Commissioner may rescind or amend his earlier decision on the presentation to him of new facts or where, “with respect to the finding of any fact or the interpretation of any law, the Commissioner determines that an error was made in reaching the decision.” The decision referred to is the Commissioner’s earlier decision and not the decision of the Service Court. At another time, perhaps, it might have been possible to secure judicial review of the Commissioner’s earlier decision or even the decision of the Service Court. But whether or not that might at one time have been possible, it is not now possible.

First then, was the Commissioner presented with any new facts in counsel’s letter to him of the 29th day of November, 1991 and a further letter, not referred to above, of the 10th day of December, 1991?

The new facts alleged are first, that there was an accusation against Divito that he had offered a woman drugs (presumably marihuana) in exchange for sex, that she had complained to the Force in this regard and that information regarding this accusation and complaint had not been shared by the Force with the applicant in a timely manner; and second, that, at the time of the hearing before the Service Court, counsel for the applicant was unaware that the applicant had tested positive for the HIV virus.

The Commissioner carefully assesses these alleged new facts in his decision. He points out that the issue of the accusation against Divito was raised when the Service Court first convened on the 9th day of May, 1988. At that time the Force refused to release the information to the applicant and cited as the basis of the refusal the Privacy Act and the Access to Information Act. The Court was adjourned to January, 1989 expressly for the purpose of allowing the applicant to pursue access to the material under those Acts. For whatever reason, access to the material was not pursued.

Whether or not counsel for the applicant was aware of the applicant’s alleged HIV positive status prior to the resumed Service Court proceedings in January of 1989, the applicant alleges that he himself first became aware of it on or about the 10th day of June, 1987.

The Commissioner concludes by finding that neither of the alleged new facts or new fact situations are in fact new. I agree with his conclusion.

The Commissioner also examines at some length whether, with respect to the finding of any fact or the interpretation of any law, an error was made in reaching his earlier decision. In so doing, the Commissioner, quite properly in my opinion, restricts his analysis to the points raised on behalf of the applicant in counsel’s letters of the 29th day of November and the 10th day of December, 1991. He concludes that, with respect to findings of fact and the interpretation of law, no error was made in reaching his earlier decision. Subject to what follows, once again, I agree with the Commissioner.

Counsel for the applicant relied on the decision of the Supreme Court of Canada in R. v. Stinchcombe[10] as authority for the proposition that the Force’s representative before the Service Court should have fully shared, in a timely way, information regarding the accusation against Divito with respect to an offer of drugs in return for sex without requiring the applicant to resort to remedies under the Access to Information Act and the Privacy Act.

The decision in Stinchcombe dealt with a lawyer who was charged with theft, breach of trust and fraud, the details of which are not relevant to the case at bar. The Crown was in possession of material that was favourable to the defence’s case. The existence of the material was disclosed to the defence, but not its substance. In writing for a unanimous Court, Mr. Justice Sopinka determined that the arguments favouring disclosure outweighed those against. At page 336 he stated:

This review of the pros and cons with respect to disclosure by the Crown shows that there is no valid practical reason to support the position of the opponents of a broad duty of disclosure. Apart from the practical advantages to which I have referred, there is the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence. This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice.

The applicant argued that Stinchcombe and section 7 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]][11] entitle him to disclosure of the material which allegedly implicates Divito in offering drugs to a woman in return for sexual favours. The applicant contends that this is relevant to the applicant in that it would go to the credibility of Divito, whose testimony was critical in the Service Court decision regarding the applicant.

The respondents, in attempting to distinguish the decision in Stinchcombe, rely on a decision of the Supreme Court of Canada in Trimm v. Durham Regional Police.[12] The respondents contend that in the light of Trimm, the Stinchcombe decision on which the applicant relies is not relevant to the disciplinary proceedings to which the applicant was subjected.

The issue before the Supreme Court of Canada in Trimm was whether paragraph 11(d)[13] of the Charter applied to police disciplinary hearings conducted under the authority of the Police Act[14] of Ontario and regulations made thereunder. Madam Justice Wilson, writing for a unanimous Court, found at pages 586 to 589 that paragraph 11(d) did not apply to such proceedings that neither were criminal in nature, nor carried the threat of penal consequences. At page 589 she adopted the following words of Eberle J. of the Ontario Divisional Court in Colledge v. Niagara Regional Police Commission:[15]

The principle aspects of the proceedings at bar fall entirely within the ambit of internal disciplinary proceedings inside the police force. The duty sought to be enforced in the present proceeding is a duty which arises directly under the code of police conduct laid down in the Police Act. The matters involved in the proceedings are accordingly matters essentially of a private nature between the officer and his superiors.

Madam Justice Wilson then added [at page 589]:

Unlike Wigglesworth, the appellant is not subject to the possibility of imprisonment under the Police Act. There are in this case no “true penal consequences”. I would therefore answer the first constitutional question in the negative. [That is, paragraph 11(d) of the Charter did not apply to the Trimm proceeding.]

The findings in Trimm do not seem to have an effect on the applicability of Stinchcombe to the matter before this Court. Here, the applicant did face true penal consequences in his hearing before the Service Court. With that in mind, it appears that R. v. Wigglesworth[16] may be more relevant to the case at bar than is Trimm. In Wigglesworth, an RCMP officer assaulted a person in his custody and was convicted of a major service offence under subsection 25(1) of the Act [R.S.C. 1970, c. R-9]. He was also facing proceedings in the provincial court of Saskatchewan arising out of the same incident. Wigglesworth argued that his rights under paragraph 11(h) of the Charter, not to be punished for the same offence twice, were violated.

In writing for a 6 to 1 majority, Madam Justice Wilson, at pages 560 and 561 formulated a two-part test to determine if proceedings are proceedings in respect of a criminal or penal matter so as to fall within the protection of section 11 of the Charter. The first aspect of the test concerned whether the matter was of a public nature, intended to promote public order and welfare. The second part of the test centred on whether there were “true penal consequences”[17] attached to the matter.

In applying this test, Madam Justice Wilson found that the RCMP Code of Discipline did not meet the “by nature” test, but by virtue of the possibility of imprisonment for up to one year, satisfied the “true penal consequences” test. However, after finding that Wigglesworth was within the scope of section 11 of the Charter, she then found that the RCMP Code of Discipline proceedings were an internal matter while the criminal proceedings were an accounting to society at large. Therefore there was not a violation of section 11.[18]

Notwithstanding that finding, for the case at bar, perhaps the most important comment made in Wigglesworth by Madam Justice Wilson appears at pages 561-562, where she states:

I have grave doubts whether any body or official which exists in order to achieve some administrative or private disciplinary purpose can ever imprison an individual. Such a deprivation of liberty seems justified as being in accordance with fundamental justice under s. 7 of the Charter only when a public wrong or transgression against society, as opposed to an internal wrong, is committed. However, as this was not argued before us in this appeal I shall assume that it is possible that the “by nature” test can be failed but the “true penal consequence” test passed. Assuming such a situation is possible, it seems to me that in cases where the two tests conflict the “by nature” test must give way to the “true penal consequence” test. If an individual is to be subject to penal consequences such as imprisonment—the most severe deprivation of liberty known to our law—then he or she, in my opinion, should be entitled to the highest procedural protection known to our law.

The applicant, at the time of his original Service Court hearing, was at risk of imprisonment for up to one year. Clearly, the “true penal consequences” test outlined in Wigglesworth has been met.

Although Stinchcombe was decided in the context of an indictable offence under the Criminal Code [R.S.C., 1985, c. C-46], the possibility of imprisonment for up to one year in the case at bar compels the Court to consider the application of the principles outlined in Stinchcombe to the case before the Court. In essence, the Royal Canadian Mounted Police Act, as it read when the applicant was charged with a major offence, was as much a penal statute as the Criminal Code.[19] Therefore, the focus must now turn to the Stinchcombe decision to determine whether or not the “highest procedural protection known to our law” as referred to in the quotation immediately above, was wrongly denied the applicant in the case at bar.

The decision in Stinchcombe underscored the common law right to make full answer and defence which was given “new vigour”[20] by its inclusion in section 7 of the Charter as a principle of fundamental justice. Nevertheless, at page 339 of Stinchcombe, Mr. Justice Sopinka found that the obligation for disclosure is not absolute. At that page he stated:

A discretion must also be exercised with respect to the relevance of information. While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant.

It was made clear that such a discretion on the part of the Crown can and should be the subject of review by the Trial Judge. It is apparent from the remarks of Sopinka J. at pages 340-341 that the Trial Judge’s review,

 … should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence ….

I am confident that disputes over disclosure will arise infrequently when it is made clear that counsel for the Crown is under a general duty to disclose all relevant information.

As to what information is relevant and what is not, the Court, at pages 345-346 said:

I am of the opinion that, subject to the discretion to which I have referred above, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses. Where statements are not in existence, other information such as notes should be produced, and, if there are no notes, then in addition to the name, address and occupation of all witness, all information in the possession of the prosecution relating to any relevant evidence that the person could give should be supplied…. If the information is of no use then presumably it is irrelevant and will be excluded in the exercise of the discretion of the Crown. If the information is of some use then it is relevant and the determination as to whether it is sufficiently useful to put into evidence should be made by the defence and not the prosecutor.

In his decision dated the 3rd day of June, 1992, the Commissioner deals with the material in question, its effect on the question of the credibility of Divito and the Stinchcombe decision. The Commissioner, at page 3 of his decision, found:

While the Stinchcombe case relates to non-disclosure of investigative materials directly relating to the subject-matter of testimony of a person who was a witness at the preliminary inquiry and a potential witness at the trial, the request in the present case is for material of a far different nature. The material sought on behalf of Mr. Nuosci did not relate directly to the matter before the Service Court but, instead, was information concerning a complaint against a witness. The purpose in obtaining that information may have been to determine whether it would be beneficial in attacking the credibility of S/Cst Divito.

…

… the allegation resulted from an anonymous telephone call directed to Crimestoppers, from a person identifying herself only as “Martha”. She alleged that she was in the company of a girlfriend and was approached by two persons. These persons may have been Mr. Nuosci and S/Cst Divito. A similar call was later received by the R.C.M.P. Investigation conducted failed to disclose any evidence which would support the allegation. That investigation included interviews of Mr. Nuosci and S/Cst Divito. No charges or other disciplinary action resulted from the allegation and the subsequent investigation.

It would appear that the Commissioner is of the opinion that the information was not relevant to the proceedings before the Service Court. He refers to the investigation conducted by the Force into the allegation made against Divito and the fact that no charge or other disciplinary action was taken against him. As noted above, the Service Court did provide a lengthy adjournment in its proceedings to allow the applicant to pursue access to the material under the Access to Information Act and the Privacy Act. The applicant failed to pursue the opportunity so provided.

Equally, that the applicant failed to effectively challenge through judicial review or otherwise the original decision of the Service Court of the 9th day of May, 1988 which denied access, the final decision of the Service Court of the 19th day of January, 1989 or the first decision of the Commissioner dated the 13th day of October, 1989 on the appeal of the Service Court’s decision, militates against a finding that an error was made in reaching the Commissioner’s later decision. This is particularly true where no new facts are presented and where the “finding of fact or interpretation of law” allegedly giving rise to an error in reaching the Commissioner’s first decision, is not based itself on any new information other than, perhaps, the decision of the Supreme Court of Canada in Stinchcombe itself which, as the Commissioner correctly points out, is not on all fours with the fact situation that was before the Service Court and the Commissioner.

On the basis of the foregoing analysis, I am not satisfied that the Stinchcombe decision warrants my interfering with the second decision of the Commissioner, in the way advocated on behalf of the applicant, at this stage of a very long and thorough process.

The applicant seeks his costs throughout these proceedings on a solicitor-and-client scale. Rule 1618 of the Federal Court Rules[21] reads as follows:

Rule 1618. No costs shall be payable in respect of an application for judicial review unless the Court, for special reasons, so orders.

Counsel for the applicant argued before me that the failure to share information referred to above constituted “special reasons” justifying an order as to costs against the respondents. Given the conclusion I have reached on the question of sharing, I reject this argument and find no “special reasons” that would warrant an order as to costs.

CONCLUSION

For the foregoing reasons, I have dismissed the application for judicial review of the decision of the Commissioner of the Royal Canadian Mounted Police dated the 3rd day of June, 1992 and made pursuant to subsection 45.16(8) of the Royal Canadian Mounted Police Act.

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