T-1527-86
Michael Adrian Van Rassel (Petitioner)
v.
P. M. Cummings*, Superintendant of the RCMP,
Robert Simmonds, Commissioner of the RCMP
and Royal Canadian Mounted Police (Respon-
dents)
and
Attorney General of Canada (Mis -en-cause)
INDEXED AS: VAN RASSEL V. CANADA (SUPERINTENDANT OF
THE RCMP)
Trial Division, Joyal J.—Montréal, September 26;
Ottawa, November 17, 1986.
RCMP — Officer acquitted of criminal charges in U.S.A. —
Discharged at criminal trial in Canada relating to same set of
facts — Judge considering doctrines of double jeopardy and
chose jugée — Charged under Royal Canadian Mounted
Police Act, with discreditable conduct — Major service offence
— Prohibition ofservice trial sought — Current charge not
identical with criminal charges of which acquitted — No
double jeopardy — No violation of Charter rights — No
reasonable apprehension of bias arising from derogatory
remarks attributed to Commissioner or fact tribunal members
appointed by superior who decided charge should be laid —
Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, ss.
21(1),(2), 25, 31 (as am. by S.C. 1976-77, c. 28, s. 49), 32(2),
34, 41, 43(1),(2), 44 — United States Code, Title 18, ss. 201(c),
641, 1952(a)(3) — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 11(d),(h), 24 —
Criminal Code, R.S.C. 1970, c. C-34, s. 245(1) — Canada
Shipping Act, R.S.C. 1970, c. S-9, s. 570 — National Defence
Act, R.S.C. 1970, c. N-4, ss. 78, 80(1) — Penitentiary Service
Regulations, C.R.C., c. 1251 — Canadian Bill of Rights,
R.S.C. 1970, Appendix III, s. 2(f).
Constitutional law — Charter of Rights — Criminal pro
cess — Double jeopardy — Application for order of prohibi
tion — Major service offence under RCMP Act s. 25(o) and
criminal charges based on same factual circumstances —
Plaintiff acquitted of criminal charges in U.S.A. and dis
charged at trial in Canada upon charges arising from same set
of facts — Charged with major service offence before RCMP
service tribunal — No violation of Charter s. 11(h) as charge
* Editor's note: This party's name should read P. M. Cum-
mins. It was inadvertently misspelled throughout the proceed
ings.
of discreditable conduct prima facie not identical with or
similar to criminal charges of which acquitted — Issue more
properly raised before service tribunal — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss.
11(d),(h), 24 — Royal Canadian Mounted Police Act, R.S.C.
1970, c. R-9, ss. 21(1),(2), 25, 31 (as am. by S.C. 1976-77, c.
28, s. 49), 32(2), 34, 41, 43(1),(2), 44 — United States Code,
Title 18, ss. 201(c), 641, 1952(a)(3).
Judicial review — Prerogative writs — Prohibition —
Application to prohibit RCMP service tribunal from hearing
major service offence charge based on same factual circum
stances as criminal charges upon which plaintiff acquitted in
U.S.A. and discharged in Canada — No double jeopardy as
charge of discreditable conduct prima facie not identical with
criminal charges — No institutional bias: MacKay v. The
Queen, [1980j 2 S.C.R. 370 — Alleged critical comments by
RCMP Commissioner irrelevant as service tribunal indepen
dent — Availability of statutory appeal — Issue better dealt
with by service tribunal — Whether application for prohibition
premature — Royal Canadian Mounted Police Act, R.S.C.
1970, c. R-9, ss. 21(1),(2), 25, 31 (as am. by S.C. 1976-77, c.
28, s. 49), 32(2), 34, 41, 43(1),(2), 44 — United States Code,
Title 18, ss. 201(c), 641, 1952(a)(3).
The applicant, a member of the RCMP, was arrested in the
United States and charged with unauthorized disclosure of
confidential investigative information, conveying such informa
tion and soliciting and obtaining a bribe. He was tried by a
judge and jury and acquitted of all charges.
On his return to Canada, the applicant was charged under
similar provisions of the Criminal Code. At trial, the judge
discharged the accused based on double jeopardy and chose
jugée. The applicant was also charged with discreditable con
duct under section 25 of the Royal Canadian Mounted Police
Act. This is a major service offence punishable by up to one
year of imprisonment.
This is an application for an order prohibiting the RCMP
from proceeding with the service trial. The applicant raised the
issue of double jeopardy. He also argued that although the
service charge is different from the criminal charges, it arose
out of the same facts and circumstances and therefore consti
tutes chose jugée. The applicant also raised the issue of reason
able apprehension of bias, alleging that the Commissioner of
the RCMP has commented in a critical manner on the actions
of the applicant.
Held, the application should be dismissed.
Case law has not established that the right of any discipli
nary tribunal to try one of its members for a service-related or
profession-related offence is aborted by the fact that a criminal
charge involving the same facts and circumstances has been
laid or has resulted in a conviction or acquittal. It has con
sidered the double jeopardy aspect as one of the conditions
involved in membership in society as a whole and membership
in a select group within that society.
With respect to paragraph 11(h) of the Charter, it can be
said that the double jeopardy protection therein has been
interpreted as being quite restricted. And in the present case,
the offence is not identical: a charge of reprehensible conduct is
not a charge of selling valuable information. The evidence yet
to be heard by the service tribunal might not be the same as
that in the criminal charges. Nor can the Court decide at this
stage what are the necessary ingredients of the service offence
or whether such ingredients are identical to those of the crimi
nal charges. In any event, these issues might more properly be
raised before the service tribunal. Remedies, in case of error,
would be readily available.
There is no reasonable apprehension of "institutional" bias.
The fact that the members of the tribunal are appointed by the
Commissioner to apply policies formulated by him does not
mean that the tribunal is biased. As has been held by the
Supreme Court with respect to Courts Martial, one cannot say
that the members of the tribunal, military or, as here, police
officers, are less able to meet the duty of impartiality than
civilian judges.
The fact that the Commissioner might have made critical
remarks against the applicant does not justify a finding of
reasonable apprehension of bias on the part of the service
tribunal. The latter is an independent and impartial tribunal.
Furthermore, it would be inappropriate to abort the service
trial before it begins on the basis of bias since the Act provides
for an appeal from the tribunal's decision.
CASES JUDICIALLY CONSIDERED
APPLIED:
MacKay v. The Queen, [ 1980] 2 S.C.R. 370.
DISTINGUISHED:
Re Nash and The Queen (1982), 70 C.C.C. (2d) 490
(Nfld. Prov. Ct.).
CONSIDERED:
Regina v. Mingo et al. (1982), 2 C.C.C. (3d) 23
(B.C.S.C.); Krug v. The Queen, [1985] 2 S.C.R. 255; 21
C.C.C. (3d) 193; R. v. Prince, [1986] 2 S.C.R. 480; Re
MacDonald and Marriott et al. (1984), 7 D.L.R. (4th)
697 (B.C.S.C.); Regina v. Wigglesworth (1984), 11
C.C.C. (3d) 27; 38 C.R. (3d) 388 (Sask. C.A.) (leave to
appeal granted [1984] 1 S.C.R. xiv), affirming 7 C.C.C.
(3d) 170; 150 D.L.R. (3d) 748; 35 C.R. (3d) 322 (Sask.
Q.B.).
REFERRED TO:
Carlo Borrelli v. Sa Majesté la Reine, judgment dated
August 5, 1986, Quebec Court of Appeal, Court No.
500-10-000254-852/700-27-011073-846, not yet reported;
Committee for Justice and Liberty et al. v. National
Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68
D.L.R. (3d) 716; Kienapple v. The Queen, [1975] 1
S.C.R. 729; Re R. v. Crux and Polvliet (1971), 2 C.C.C.
(2d) 427; Vaillancourt v. City of Hull and Attorney
General of the Province, [1949] B.R. 680 (Que.).
COUNSEL:
Julius H. Grey and Lawrence Corriveau, Q.C.
for petitioner.
Richard Starck for respondents.
SOLICITORS:
Grey, Casgrain, Montréal, and Corriveau,
Bouchard, Corriveau & Associés, Québec, for
petitioner.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
JOYAL J.: This is an application to this Court
for an order prohibiting the Royal Canadian
Mounted Police from proceeding with a service
trial of the applicant for a major service offence
under section 25(o) of the Royal Canadian
Mounted Police Act, R.S.C. 1970, c. R-9.
This section of the statute provides that a
member of the RCMP is guilty of an offence if he
25....
(o) conducts himself in a scandalous, infamous, disgraceful,
profane or immoral manner; ....
The grounds raised by the applicant in his
prayer for relief are founded on the doctrine of
double jeopardy and on the issue of bias.
The applicant is a member of the Royal Canadi-
an Mounted Police. At all material times, he was
stationed in Roberval, Quebec. Around March or
April of 1985, he was provided with some confi
dential documents by the U.S. Drug Enforcement
Agency and relating to a particular suspect who
might have had roots or contacts in the Lac
St-Jean area. In May 1985, he took a holiday in
Florida. While in Florida, he was arrested by the
U.S. authorities and indicted on three counts of
breach of Title 18, United States Code, Section
1952(a)(3), Section 641 and Section 201(c). These
criminal charges under the United States Code
related to unauthorized disclosure of confidential
investigative information of the United States
Department of Justice, Drug Enforcement
Administration, to conveying such information and
to soliciting and obtaining a bribe for it.
The applicant was subsequently tried by a judge
and jury and on August 8, 1985, was acquitted of
all charges.
The applicant returned to Canada. He was
charged under similar provisions of the Criminal
Code [R.S.C. 1970, c. C-34]. A preliminary enqui
ry took place between the 7th and 11th of April
1986. The applicant was committed for trial on
two of the six counts against him.
At trial, counsel for the accused raised the issue
of double jeopardy, autrefois acquit and res
judicata. The Trial Judge deliberated and on Sep-
tember 12, 1986, after a detailed analysis of the
doctrines of double jeopardy and chose jugée and
of current jurisprudence on the subject, discharged
the accused.
In the meantime, however, the behaviour of the
applicant while in Florida had not passed unno
ticed by his superiors. He was charged under the
disciplinary provisions of section 25 of the Royal
Canadian Mounted Police Act with discreditable
conduct. The hearing of that charge was postponed
from time to time pending the disposition of the
criminal charges against the applicant.
The applicant now prays this Court to prohibit
the service inquiry to proceed. In an elaborate
argument, counsel for the applicant argues:
1. The charge under section 25 of the statute is a
criminal charge. A conviction under it may
subject the applicant to punishment of up to
one year's imprisonment, a kind of sanction
for which his prior acquittal should leave him
now free and clear.
2. The service charge, although different from
the criminal charges the applicant formerly
faced, arises out of the same facts and cir
cumstances and according to more recent doc
trine, constitutes chose jugée. Counsel relies
in this respect on the recent Quebec Court of
Appeal judgment in Carlo Borrelli v. Sa
Majesté la Reine, Court No. 500-10-000254-
852/700-27-011073-846, decision dated Au
gust 5, 1986, not yet reported.
3. The service charge itself is in violation of the
applicant's rights under 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.)] and the
application before the Court is in essence an
application for a remedy pursuant to section
24 of the Charter.
4. As the Commissioner of the RCMP has pur
portedly commented in a most critical manner
on the actions of the applicant, there is as a
consequence a reasonable apprehension of
bias as defined by the Supreme Court of
Canada in the Marshall Crowe case, (Com-
mittee for Justice and Liberty et al. v. Na
tional Energy Board et al., [1978] 1 S.C.R.
369; (1976), 68 D.L.R. (3d) 716).
Counsel for the Crown argues that, in essence,
the application for an order of prohibition is pre
mature. Counsel urges the Court to find that:
1. an order of prohibition should not be confused
with a certiorari order.
2. the absence or excess of jurisdiction of the
service tribunal must first be established;
3. the issues raised by the applicant are constitu
tional and legal in nature; they do not raise
jurisdictional issues;
4. the issues are of a nature that they might
more properly be raised at the service trial of
the applicant following an enquiry by the
service tribunal;
5. the ground of reasonable apprehension of bias
has not been established.
The Royal Canadian Mounted Police, as a
police force, is legendary. It is paramilitary in
nature and the combined elements of training,
conduct and discipline to which its members must
submit are essential to its role as guardians of the
peace and as defenders of law and order.
Like similar bodies in Canada and elsewhere,
RCM Police are subject to regulations and stand
ing orders the breach of which may lead to any
number of disciplinary measures. Under subsec
tion 21(1), power is vested in the Governor in
Council to "make regulations for the organization,
training, discipline, efficiency, administration and
good government of the force and generally for
carrying the purposes and provisions of this Act
into effect."
Similarly subsection 21(2) of the Act authorizes
the Commissioner of the RCM Police to make
rules, known as standing orders, for the same
purposes.
Part II of the Act is entitled "Discipline". Sec
tion 25 of the Act contains some 16 offences
known as major service offences. The charge
against the applicant, namely disgraceful, scandal
ous, infamous, profane or immoral conduct, is one
of them.
Pursuant to section 31 [as am. by S.C. 1976-77,
c. 28, s. 49], an investigation by an officer or
member in charge of a police detachment may be
instituted and the powers of examination and of
compelling witnesses are those of justices of the
peace under the Criminal Code relating to sum
mary offences.
If it appears that following any such investiga
tion, a major service offence has taken place, a
report, pursuant to subsection 32(2) is made to the
Commissioner and if in his opinion, the member
ought to be tried for the offence, he may direct
that a written charge be prepared and served and
he then appoints an officer to preside at the trial.
Section 34, relating to trial, establishes what are
generally regarded as criminal procedures. In the
event of a conviction and subsequent sentencing,
the matter is reviewable by a board the members
of which are appointed by the Solicitor General of
Canada.
In all respects, by the nature of the offences
described in section 25 together with the criminal
rules of evidence prescribed and the penal sanction
which might be imposed upon conviction, the tri
bunal takes on the form, the colour, the shape and
the characteristics of a criminal trial. The proce
dure, according to the applicant's counsel, should
therefore be perceived and understood as yet
another trial to which the applicant must submit
after having gone already through two of them
when the same facts and circumstances applied.
It is of course trite to state that statutory bodies
created for specific public or private puposes and
given a particular mandate by Parliament, have
from time immemorial been clothed with elaborate
powers to control, monitor and enforce codes of
discipline among their members. The military es
tablishment has had courts martial for years.
Canadian merchant seamen on board ship or
abroad are subject to arrest and discipline by a
naval court or by active duty naval officers or
consular officers abroad. (Vide section 570 et seq.
of Canada Shipping Act, R.S.C. 1970, c. S-9)
Police organizations as instituted in our several
provinces have similar codes of discipline. The
statutory right of discipline is also granted to
ruling bodies regulating the profession of law, of
medicine and of many other professions as well.
As I view the jurisprudence, it has not been
established before that the right of any discipli
nary tribunal to try one of its members for a
service-related or profession-related offence is
aborted by the fact that a criminal charge involv
ing the same facts and circumstances has been laid
or that a conviction or an acquittal followed the
trial. Jurisprudence has looked upon the seemingly
double jeopardy aspect of it as one of the condi
tions involved in membership in society as a whole
and membership in a select group within that
society. Adherence to these statutory groups might
often bring its own reward if one's conduct is
virtuous. It is otherwise if conduct be generally
regarded as prejudicial to the good order and
discipline of the group.
A citizen's conduct may be scandalous. It may
be disgraceful. It may be immoral. From a crimi
nal standpoint, however, no crime might be
involved and no criminal sanctions imposed.
The circumstances however under which scan
dalous or reprehensible conduct takes place may
also have a bearing. A medical doctor might be
riotously brew-happy or scandalously dissolute at a
medical convention and all that will be visited
upon him will be the smirking disapproval of his
colleagues. Different and far greater consequences
flow from his performing eye surgery in the same
inebriated state or from entertaining scandalous
relations with patients.
Similarly, an ordinary citizen may quit his job
or fail to report to work. No consequences flow
from it except loss of income. For a member of the
Canadian Armed Forces, however, such would be
called absence without leave or desertion and from
which very severe penalties would result (see sec
tion 78 and subsection 80(1) of the National
Defence Act, R.S.C. 1970, c. N-4, and generally
the offences and penalties set out in Part V of the
Act).
The line of decided cases since the adoption of
the Canadian Charter of Rights and Freedoms has
certainly not revolutionized juridical thinking
when dealing with double jeopardy or autrefois
acquit, autrefois convict. It has even been suggest
ed that the common law doctrine currently existing
is broader in scope than the Charter guarantees in
paragraph 11(h). Tarnopolsky and Beaudoin in
The Canadian Charter of Rights and Freedoms—
Commentary (Toronto: The Carswell Company
Limited, 1982) at page 384 et seq. deal extensively
with this matter and the conclusion I reach from
their observations is that there are more restric
tions in the text of paragraph 11(h) than meets the
eye.
The case of Regina v. Mingo et al. (1982), 2
C.C.C. (3d) 23 (B.C.S.C.), involved a penitentiary
inmate who was disciplined under the Penitentiary
Service Regulations, C.R.C., c. 1251, and also
charged under the Criminal Code. The Supreme
Court of British Columbia held that the word
"offence" in paragraph 11(h) was only intended to
apply to offences created by federal or provincial
legislation which are triable in public courts of
competent jurisdiction.
The decision in Re Nash and The Queen (1982),
70 C.C.C. (2d) 490 (Nfld. Prov. Ct.), is to the
effect that "offence" in paragraph 11(h) is broad
enough to apply to any breach or charge whereby
an accused can be punished and in particular is
broad enough to apply to any of the actions taken
against members of self-governing professional
groups or associations and is also applicable to
offences involving breaches of codes of conduct for
such groups as police officers and members of the
armed forces. The issue before the Court, however,
appears to have been a test of "impartiality" under
paragraph 11(d) and might not necessarily be in
conflict with cases dealing with double jeopardy.
The Supreme Court of Canada in Krug v. The
Queen, [1985] 2 S.C.R. 255; 21 C.C.C. (3d) 193,
decided that a double jeopardy plea would only
apply to offences which are identical in that they
contain the same elements and constitute the one
and same offence arising out of the same set of
circumstances.
This represented some departure from the doc
trine enunciated in Kienapple v. The Queen,
[1975] 1 S.C.R. 729, and was the subject of
further comment in R. v. Prince, [1986] 2 S.C.R.
480 when the Chief Justice of the Court remarked
on the considerable controversy about the nature
and scope of the principle of res judicata articulat
ed by the Court in the Kienapple case.
Of particular interest to the issue before me are
the following comments of the Chief Justice at the
conclusion of his reasons for judgment [at pages
507-508]:
Although it was not argued in this Court, I wish to add that
in my view it is normally appropriate for a superior court to
decline to grant a prerogative remedy on an interlocutory
application in respect of the rule against multiple convictions.
That rule has proved to be a fertile source of appeals. The delay
engendered by an erroneous application of the Kienapple prin
ciple prior to the conclusion of the trial is regrettably illustrated
by the present case. Prerogative remedies are discretionary, and
notwithstanding the possibility of jurisdictional error in some
cases, it would generally be preferable for superior courts to
decline to consider the merits of a Kienapple argument on an
interlocutory application.
In Re MacDonald and Marriott et al. (1984), 7
D.L.R. (4th) 697 (B.C.S.C.), a police officer fol
lowing his conviction on a charge of fraud was also
made subject to disciplinary proceedings to deter
mine if the conviction rendered him unfit to per
form his duties. The Supreme Court of British
Columbia held this was not contrary to paragraph
11(h) of the Charter. The Court said that while
the police officer had a right not to be charged
again for fraud, the disciplinary proceedings were
not directed at the fraud itself.
In Regina v. Wigglesworth (1984), 11 C.C.C.
(3d) 27; 38 C.R. (3d) 388 (Sask. C.A.), a member
of the RCM Police had been found guilty of a
serious service offence under subsection 25(1) of
the Royal Canadian Mounted Police Act. The
offence was the use of unnecessary violence
towards a prisoner. The constable was also
charged with common assault under subsection
245(1) of the Criminal Code. The Court of Appeal
of Saskatchewan held that paragraph 11(h) of the
Charter offered him no protection. The Court
adopted the words of Kindred J. of the Court
below [Sask. Q.B.] who had concluded [7 C.C.C.
(3d) 170, at page 174; 150 D.L.R. (3d) 748, at
page 753; 35 C.R. (3d) 322 at pages 327-328]:
... (1) that by enacting Part II of the Act, Parliament provided
a code for the force, equipping it with its own courts to deal
with breaches of discipline; (2) that the offences (both major
and minor service offences) under Part II "are strictly of
domestic discipline", relating to members of the force; (3) that
these offences are generally not offences of a public nature to
be tried in the regular courts of criminal jurisdiction.
The Court of Appeal in that case said that it
need not address itself to the issue as to whether
the power given to the RCM Police to imprison
members who are found guilty of serious service
offences was or was not contrary to any provisions
of the Charter.
It is to be noted that the Supreme Court of
Canada [[1984] 1 S.C.R. xiv] has granted leave to
appeal the decision of the Court of Appeal of
Saskatchewan and the appeal is expected to be
heard next term.
It is also to be noted that the service offence for
which Wigglesworth was convicted, i.e. the use of
unnecessary violence towards a prisoner, would
appear to be substantially the same offence as
described in subsection 245(1) of the Criminal
Code.
The legislative validity of the disciplinary provi
sions of the Royal Canadian Mounted Police Act
by reason of the rights and freedoms enshrined in
the Charter was not raised before me. Neverthe
less, counsel for the applicant made the point that
the penalty for a serious service offence under the
Act includes imprisonment for a term of up to one
year. The statute as a consequence is as much a
penal statute as is the Criminal Code and the
usual rules of double jeopardy apply.
I would concede that were the charge pending
against the applicant before the service tribunal
identical with or similar to the criminal charges
for which the applicant has already been acquit
ted, his argument of double jeopardy might have
pretty persuasive force. I am far from convinced,
however, that such is the situation before me.
The applicant is charged with reprehensible con
duct as a member of the RCMP. He is not charged
with selling valuable information for what
euphemistically might be called valuable consider
ation. He is charged with a service-related offence
and the service tribunal will have to judge him on
the basis of whatever evidence is presented to it
from which a finding on the charge one way or the
other will be made. Furthermore, what might be
concurring evidence which was led before the
criminal courts and which the service tribunal
might or might not find relevant or admissible is
completely unknown to this Court, as are as well
the facts and circumstances adduced at the crimi
nal trials either in Florida or in Canada.
Neither can this Court decide at this date what
are the necessary ingredients of the offence with
which the service tribunal is seized or whether
such ingredients are identical to those under the
U.S. Code or our own Criminal Code. As example,
it might not be criminal conduct for an ordinary
citizen to disclose confidential information or even
to sell it to a willing buyer. It might nevertheless
constitute a serious offence for a member of the
constabulary to do so as it might be a serious
breach of discipline and good order. A service-
related charge in such circumstances might be
perceived as a kind of double jeopardy but it would
not oust the jurisdiction of a service tribunal to
entertain it nor would it be, in my view, in breach
of paragraph 11(h) of the Canadian Charter of
Rights and Freedoms. In any event, these are
issues which might be more properly raised before
the service tribunal and the remedies in case of
error would be readily available.
Counsel for the applicant raises the issue of
"reasonable apprehension of bias". I should pref
ace my observations here that such a plea has been
advanced before in dealing with service tribunals.
As with courts martial, the argument is made that
the tribunal is appointed by the authority which
decides that a charge should be laid, that the links
in the chain of command reach from the authority
to the tribunal and back again and that the tribu
nal's mind is set to upholding the authority's policy
and is tainted with partiality. Such an argument
was raised in the case of MacKay v. The Queen,
[ 1980] 2 S.C.R. 370. The full court sat on that
appeal and the majority of them (Chief Justice
Laskin and Estey J. dissented) turned that argu
ment down. McIntyre J. at pages 403-404 had this
to say:
It would be impossible to deny that an officer is to some extent
the representative of the class in the military hierarchy from
which he comes; he would be less than human if he were not.
But the same argument, with equal fairness, can be raised
against those who are appointed to judicial office in the civilian
society. We are all products of our separate backgrounds and
we must all in the exercise of the judicial office ensure that no
injustice results from that fact. I am unable to say that service
officers, trained in the ways of service life and concerned to
maintain the required standards of efficiency and discipline—
which includes the welfare of their men—are less able to adjust
their attitudes to meet the duty of impartiality required of them
in this task than are others.
Admittedly, the challenge to the Court Mar-
tial's jurisdiction in the MacKay case was under
paragraph 2(f) of the Canadian Bill of Rights,
R.S.C. 1970, Appendix III, but the substance of
that right or protection is identical to that found in
paragraph 11(d) of the Canadian Charter of
Rights and Freedoms.
Applicant's counsel, however, raised another
argument respecting bias. Produced as an exhibit
to the applicant's affidavit was an unidentified
typewritten extract from an alleged tape recording
of an alleged statement purportedly made by the
Commissioner of the RCM Police to some kind of
group in the course of which the Commissioner
expressed some strong opinions on the conduct of
an unidentified member of the Force. Counsel
urged me to conclude that the extract was genuine,
that the words were in fact spoken, that they were
directed at the applicant and that the transcript
was a true and accurate record of what was said
and recorded at that meeting. Counsel for the
applicant also pointed out that the Crown's failure
to cross-examine the applicant on it was an admis
sion of its authenticity.
I should not be led that far by applicant's Coun
sel. The document itself is strictly hearsay and I
should doubt that the applicant is in a position to
swear to its authenticity or to the truth of its
contents. There is no evidence as to who made the
statement, before whom it was made, or in what
context the so-called biased words were spoken.
Nor, of course, is there any evidence as to how
this "transcript" came into the applicant's posses-
sion, but that is another matter which lies exclu
sively in the RCM Police's internal security proce
dures to resolve.
Assuming for the moment that the document is
authentic and that the words were directed to the
applicant, it would not on that basis constitute the
kind of ground to justify my intervention at this
time. The Commissioner of the RCM Police is not
the tribunal. It is true that he has appointed the
tribunal but once appointed, the tribunal is as
independent and as seemingly impartial as any
tribunal dealing with a service-related offence.
One cannot reasonably conclude that the bias of
the Commissioner, if bias there is, is the bias of the
tribunal and that as a result the applicant would
not get a fair trial. I need not repeat here the
observations in that respect of McIntyre J. in the
MacKay case (supra).
Furthermore, the Royal Canadian Mounted
Police Act contains some safeguards which are set
out in Part II. There is an appeal provision under
section 41. Under subsection 43(2), a conviction
on a major service offence must be referred by the
Commissioner to a Board of Review. That Board
of Review under subsection 43 (1) is appointed by
the Solicitor General of Canada. I will concede
that the Board of Review must then make its
recommendation to the Commissioner who may,
under section 44, quash the conviction, dismiss the
appeal, reduce the sentence or order a new trial.
These appeal proceedings however are pretty far
down the road and in the meantime, the parties
will be free to explore further the evidence behind
the alleged "bias". At this time, however, I should
be loath to abort the whole service trial before it
has even begun.
I must now deal briefly with the reference in the
applicant's counsel's brief to subsection 24(1) of
the Canadian Charter of Rights and Freedoms.
This provision reads as follows:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
Counsel's reference to this section of the Chart
er is, as I understand it, two-prong, namely that it
provides the applicant with a procedure to seek
redress before this Court and secondly that the
applicant's rights under the Charter have been
infringed or denied by reason of the service charge
laid against him and in such event, an order of
prohibition would be the appropriate remedy. By
reason of my earlier determination that the service
tribunal's statutory right to hear the service charge
is well established and that at this stage at least
the applicant's rights under the Charter have not
been infringed or denied, I need say no more on
that approach.
Counsel for the Crown has suggested that an
application for an order of prohibition at this time
is premature. Such an order, he said, cannot issue
from a superior court to prohibit errors of an
inferior tribunal which might possibly be anticipat
ed but which have yet to be committed. Counsel
cited Gilles Létourneau, The Prerogative Writs in
Canadian Criminal Law and Procedure, (Toronto:
Butterworths) at pages 142 and 143 and the cases
of Re R. v. Crux and Polvliet (1971), 2 C.C.C.
(2d) 427, and Vaillancourt v. City of Hull and
Attorney General of the Province, [1949] B.R. 680
(Que.), at page 689. This line of reasoning has
been expressed as conferring on a tribunal the
privilege to err or the right to be wrong, the
remedy in such event being an application to
quash.
Much has been said about the field in which a
writ of prohibition may operate. In respect of some
of the grounds raised by the applicant, Counsel's
argument might be sound. Such grounds might be
considered premature and more properly raised
before the service tribunal. This might have justi
fied a favourable response to Crown counsel's con
current motion before me to strike down the
application. By reason of the disposition I have
otherwise made of the application, however, I need
not traverse that issue.
The application for an order of prohibition is
dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.