R. v. Wigglesworth, [1987] 2 S.C.R. 541

Roger R. Wigglesworth Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General of Canada,

the Attorney General for Ontario and

the Attorney General of Quebec Interveners

Indexed As: R. v. Wigglesworth

File No.: 18613.

1987: March 3, 4; 1987: November 19.

Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and La Forest JJ.

on appeal from the court of appeal for saskatchewan

Constitutional law ‑‑ Charter of Rights ‑‑ Criminal and penal proceedings ‑‑ Double jeopardy ‑‑ Police officer charged with common assault under Criminal Code and with major service offence under Royal Canadian Mounted Police Act for same misconduct ‑‑ Whether or not conviction of major service offence precluded subsequent proceedings under the Criminal Code ‑‑ Canadian Charter of Rights and Freedoms, ss. 11, 24(1) ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 245(1) ‑‑ Royal Canadian Mounted Police Act, R.S.C. 1970, c. R‑9, ss. 25(1), 36(1).

Criminal law ‑‑ Defences ‑‑ Charter of Rights ‑‑ Criminal and penal proceedings ‑‑ Double jeopardy ‑‑ Police officer charged with common assault under Criminal Code and with major service offence under Royal Canadian Mounted Police Act for same misconduct ‑‑ Whether or not conviction of major service offence precluded subsequent proceedings under the Criminal Code ‑‑ Canadian Charter of Rights and Freedoms, ss. 11, 24(1) ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 245(1) ‑‑ Royal Canadian Mounted Police Act, R.S.C. 1970, c. R‑9, ss. 25(1), 36(1).

Appellant police officer committed a common assault, as defined in the Criminal Code, which was also a "major service offence" under the Royal Canadian Mounted Police Act. The major service offence was dealt with first. The trial judge quashed the information for the charge of common assault under s. 24(1) of the Canadian Charter of Rights and Freedoms on the ground that the accused was being tried twice for the same misconduct contrary to s. 11 of the Charter but the Saskatchewan Court of Queen's Bench allowed an appeal from that judgment holding that the common assault charge and the major service offence constituted separate offences. An appeal to the Court of Appeal was dismissed.

The central issue here was whether the appellant's conviction of a "major service offence" under the Royal Canadian Mounted Police Act precluded subsequent proceedings under the Criminal Code for the same misconduct on the ground that such proceedings would violate the accused's right, under s. 11(h) of the Charter, not to be tried twice for the same offence. The first constitutional question queried whether a prosecution by the Crown for a criminal offence arising from an act for which the accused was convicted under the Royal Canadian Mounted Police Act violated s. 11 of the Charter. If so, the second queried whether or not the subsequent prosecution was justifiable under s. 1 of the Charter.

Held (Estey J. dissenting): The appeal should be dismissed; the first constitutional question should be answered in the negative.

Per Dickson C.J. and Beetz, McIntyre, Lamer, Wilson and La Forest JJ.: The rights guaranteed by s. 11 of the Charter are available to persons prosecuted by the State for public offences involving punitive sanctions, i.e., criminal, quasi‑criminal and regulatory offences, either federally or provincially enacted. The section is intended to provide procedural safeguards in proceedings which may attract penal consequences even if not criminal in the strict sense.

A matter could fall within s. 11 either because by its very nature it is a criminal proceeding or because a conviction in respect of the offence may lead to a true penal consequence. In cases where the two tests conflict the "by nature" test must give way to the "true penal consequence" test.

If a particular matter is of a public nature, intended to promote public order and welfare within a public sphere of activity, then that matter falls within s. 11. This is to be distinguished from private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited private sphere of activity.

The R.C.M.P. Code of Discipline is concerned with the maintenance of discipline and integrity within the Force and is designed to regulate conduct relevant to being a member of the R.C.M.P. The proceedings before the Royal Canadian Mounted Police Service Court are accordingly neither criminal nor quasi‑criminal proceedings. However, an officer charged and convicted under the Code of Discipline faces a true penal consequence since conviction can result in imprisonment for one year.

Nevertheless, appellant does not have the benefit of s. 11(h) because he was not being tried and punished for the same offence. The "offences" were quite different. One was an internal disciplinary matter where the accused was found guilty of a major service offence and has accounted to his profession. The other was the criminal offence of assault where the accused must account to society at large for his conduct. The accused cannot complain, as a member of a special group of individuals subject to private internal discipline, that he ought not to account to society for his wrongdoing as a member of the public at large.

Constitutionally guaranteed procedural protections may be available in a particular case under s. 7 of the Charter even although s. 11 is not available. The appellant in this case chose to base his case solely on s. 11 of the Charter.

Per Estey J. (dissenting): A tribunal's power to couple a one‑year imprisonment sentence with a virtually inevitable dismissal from the Force upon conviction does not amount to a scale of punishment which reflects only the internal disciplinary interest of the R.C.M.P. but also takes into consideration the interest of the larger community in the suppression of the crime of assault wherever committed. The test must be practical: whether the first court, upon registering a conviction, was performing a task assigned by Parliament which, by the scale of punishment available to the tribunal, is readily recognizable as a process in which the general public's interest in the administration of criminal law is recognized over and above the limited interest of internal discipline. The subsequent proceeding under s. 245(1) of the Criminal Code falls squarely within the prohibition in s. 11(h) of the Charter and a breach of a right under that section cannot be justified by any conceivable s. 1 reasonable limits analysis.

Cases Cited

By Wilson J.

Considered: R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480; referred to: R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; R. v. Mingo (1982), 1982 CanLII 376 (BC SC), 2 C.C.C. (3d) 23; Yeomans v. Gaw (1985), 1985 CanLII 5538 (FCA), 22 C.C.C. (3d) 311; Howard and Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution (1983), 1983 CanLII 2911 (FC), 8 C.C.C. (3d) 557 (F.C.T.D.), subsequently reversed but in reliance on s. 7 of the Charter at 1985 CanLII 5581 (FCA), [1984] 2 F.C. 642 (C.A.); Russell v. Radley, 1984 CanLII 5392 (FC), [1984] 1 F.C. 543; Re Peltari and Director of the Lower Mainland Regional Correctional Centre (1984), 1984 CanLII 467 (BC SC), 15 C.C.C. (3d) 223; Knockaert v. Commissioner of Corrections (1986), 1986 CanLII 6815 (FC), 18 Admin. L.R. 273 (F.C.T.D.), subsequently upheld by 1986 CanLII 6884 (FCA), [1987] 2 F.C. 202 (C.A.); Re James and Law Society of British Columbia (1982), 1982 CanLII 685 (BC SC), 143 D.L.R. (3d) 379; Rosenbaum v. Law Society of Manitoba, 1983 CanLII 2972 (MB QB), [1983] 5 W.W.R. 752; Belhumeur v. Discipline Committee of Quebec Bar Association (1983), 1983 CanLII 5299 (QC CS), 34 C.R. (3d) 279; Re Law Society of Manitoba and Savino (1983), 1983 CanLII 2995 (MB CA), 1 D.L.R. (4th) 285; Re Fang and College of Physicians & Surgeons of Alberta (1985), 1985 ABCA 291, 25 D.L.R. (4th) 632; Re Nash and The Queen (1982), 1982 CanLII 3876 (NL PC), 70 C.C.C. (2d) 490; Re Lazarenko and Law Society of Alberta (1983), 1983 CanLII 1131 (AB KB), 4 D.L.R. (4th) 389, subsequently disapproved by Alta. C.A. in Re Fang and College of Physicians and Surgeons of Alberta (1985), 25 D.L.R. (4th) 632; R. v. B & W Agricultural Services Ltd. (1982), 3 C.R.R. 354; Trumbley and Pugh v. Metropolitan Toronto Police (sub nom. Re Trumbley and Fleming) (1986), 1986 CanLII 146 (ON CA), 55 O.R. (2d) 570; Re Barry and Alberta Securities Commission (1986), 1986 ABCA 34, 25 D.L.R. (4th) 730; Eastern Counties and London and Blackwall Railway Cos. v. Marriage (1860), 9 H.L. Cas. 31; Sheffield Waterworks Co. v. Bennett (1872), L.R. 7 Ex. 409; Stephens v. Cuckfield Rural District Council, [1960] 2 All E.R. 716; Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357; Canadian Pacific Ltd. v. Attorney General of Canada, 1986 CanLII 69 (SCC), [1986] 1 S.C.R. 678; Re McCutcheon and City of Toronto (1983), 1983 CanLII 1629 (ON SC), 147 D.L.R. (3d) 193; Re Malartic Hygrade Gold Mines (Canada) Ltd. and Ontario Securities Commission (1986), 1986 CanLII 2653 (ON SC), 54 O.R. (2d) 544; The Queen and Archer v. White, 1955 CanLII 48 (SCC), [1956] S.C.R. 154; Inkster v. Radey, 1979 CanLII 4169 (FCA), [1979] 2 F.C. 457; Van Rassel v. Canada, 1986 CanLII 6871 (FC), [1987] 1 F.C. 473; Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729; Re Pelissero and Loree (1982), 1982 CanLII 3231 (ON SCDC), 140 D.L.R. (3d) 676; Re MacDonald and Marriott (1984), 1984 CanLII 829 (BC SC), 7 D.L.R. (4th) 697; Re Bridges and Bridges (Ont. Prov. Ct., Colter Prov. Ct. J., unreported); R. v. DeBaie (1983), 1983 CanLII 5090 (NS CA), 60 N.S.R. (2d) 78; R. v. Belliveau (1984), 1984 CanLII 4203 (NB CA), 55 N.B.R. (2d) 82.

By Estey J. (dissenting)

R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480.

Statutes and Regulations Cited

Canadian Bill of Rights, R.S.C. 1970, App. III, s. 2(f).

Canadian Charter of Rights and Freedoms, ss. 11, 24(1).

Constitution Act, 1867, s. 92(15).

Criminal Code, R.S.C. 1970, c. C‑34, s. 245(1).

Royal Canadian Mounted Police Act, R.S.C. 1970, c. R‑9, ss. 25(1), 36(1), 45.

Authors Cited

Bower, George Spencer. The Doctrine of Res Judicata, 2nd ed. by Sir Alexander Kingcome Turner. London: Butterworths, 1969.

Craies, William Feilden. Craies on Statute Law, 7th ed. by S.G.G. Edgar. London: Sweet & Maxwell, 1971.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Manning, Morris. Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982. Toronto: Emond‑Montgomery, 1983.

Maxwell, Sir Peter B. Maxwell on the Interpretation of Statutes, 12th ed. by P. St. J. Langan. London: Sweet & Maxwell, 1969.

McDonald, David C. Legal Rights in the Canadian Charter of Rights and Freedoms: A Manual of Issues and Sources. Toronto: Carswells, 1982.

Stuart, Don. "Annotation to R. v. Wigglesworth" (1984), 1984 CanLII 2275 (SK CA), 38 C.R. (3d) 388.

APPEAL from a judgment of the Saskatchewan Court of Appeal (1984), 1984 CanLII 2275 (SK CA), 31 Sask. R. 153, 7 D.L.R. (4th) 361, [1984] 3 W.W.R. 289, 11 C.C.C. (3d) 27, 38 C.R. (3d) 388, dismissing an appeal from a judgment of the Saskatchewan Court of Queen's Bench (1983), 1983 CanLII 2108 (SK QB), 25 Sask. R. 149, 150 D.L.R. (3d) 748, 7 C.C.C. (3d) 170, 35 C.R. (3d) 322, allowing an appeal from a judgment of Meagher Prov. Ct. J. (1983), 1983 CanLII 5295 (SK PC), 33 C.R. (3d) 44, quashing an information. Appeal dismissed, Estey J. dissenting; the first constitutional question should be answered in the negative.

Gerald N. Allbright, Q.C., for the appellant.

Carol Snell and Graeme G. Mitchell, for the respondent.

Julius Isaac, Q.C., and Yvon Vanasse, for the intervener the Attorney General of Canada.

Dennis W. Brown, Q.C., and Peter R. Jervis, for the intervener the Attorney General for Ontario.

Yves de Montigny and Françoise Saint‑Martin, for the intervener the Attorney General of Quebec.

The judgment of Dickson C.J. and Beetz, McIntyre, Lamer, Wilson and La Forest JJ. was delivered by

Wilson J. ‑‑The central issue on this appeal is whether the appellant's conviction of a "major service offence" under the Royal Canadian Mounted Police Act, R.S.C. 1970, c. R‑9, precludes subsequent proceedings under the Criminal Code for the same misconduct. The resolution of this issue requires a decision as to whether such a major service offence constitutes an "offence" within the meaning of s. 11 of the Canadian Charter of Rights and Freedoms and, if so, whether proceedings under the Criminal Code would violate the appellant's right under s. 11(h) of the Charter not to be tried and punished again for the same offence. Before turning to a consideration of these issues it is necessary to examine briefly the facts of the case.

1. The Facts

The appellant was at all material times a Constable of the Royal Canadian Mounted Police. On August 21, 1981, one Donald Kerr was brought to the R.C.M.P. detachment in Yorkton, Saskatch‑ ewan for a breathalyzer test. Kerr was taken into a room where he met the appellant.

The appellant started to question Kerr concerning the incident giving rise to his arrest. He asked Kerr who was driving the car at the time. Kerr indicated that his sister was driving. The appellant suspected he was lying. He repeated the question a couple of times, receiving the same response each time. The appellant then grabbed Kerr, who was seated in a chair at the time, by the throat and pushed him against a wall. The grab around the throat was sufficient to cause a choking sensation to Kerr.

After a few seconds the appellant questioned Kerr again as to who was driving the car. Kerr continued to maintain that his sister was driving. The appellant slapped Kerr across the face with his open hand and repeated the question. Kerr gave the same answer. However, after three or four slaps Kerr admitted that he had been driving the car. At no time did Kerr respond physically to the appellant's slaps. The defence has admitted, on these facts, that the appellant committed a common assault as defined in the Criminal Code. As a result of the assault Kerr suffered a sore throat, a ringing in his ears, and several minor marks on his face.

Two charges were laid following this incident. On August 21, 1981 the appellant was charged with common assault contrary to s. 245(1) of the Criminal Code, R.S.C. 1970, c. C‑34. The appellant was also charged under the Royal Canadian Mounted Police Act as follows:

That at or near Yorkton, in the Province of Saskatchewan, on the 21st day of August, 1981, that you were unnecessarily violent towards a prisoner, to wit: Donald Kerr, by forcibly grabbing him and slapping him in the face, contrary to Section [sic] (L), Section 25 of the Royal Canadian Mounted Police Act.

2. The Courts Below

On June 2, 1982 the appellant appeared before Inspector S. G. Wilcox of the Royal Canadian Mounted Police Service Court for trial of the charge laid under the Royal Canadian Mounted Police Act. The appellant was found guilty of a "major service offence" under s. 25(l) of that Act. The section reads as follows:

25. Every member who

(l) is cruel, harsh or unnecessarily violent to any prisoner or other person;

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.

The maximum penalty imposed by s. 36(1) of the Act for such an offence is imprisonment for one year. The appellant was assessed a fine of $300.

On February 2, 1983 the appellant appeared before His Honour Judge Meagher of the Saskatchewan Provincial Court for trial of the charge of common assault under s. 245(1) of the Criminal Code. His counsel submitted that it would be improper to proceed with this charge following the conviction under the Royal Canadian Mounted Police Act since this would violate the accused's right under s. 11(h) of the Charter not to be tried and punished twice for the same offence. The trial judge accepted this submission and quashed the information pursuant to s. 24(1) of the Charter. He held that both the proceeding before the service tribunal and the proceeding before the criminal court were penal in nature‑‑both involved a trial for an alleged "offence" and a possible term of imprisonment following a determination of guilt. In his view, if punishment were meted out in each case, the appellant would be punished twice for the same offence.

The Crown appealed to the Court of Queen's Bench for Saskatchewan. On July 5, 1983 that Court allowed the appeal. Kindred J. held that the trial judge had erred in law in holding that the conviction under the Royal Canadian Mounted Police Act precluded him from trying the appellant under the Criminal Code. The two constituted different offences. The former was a trial before a service tribunal for a breach of discipline amounting to a major service offence applicable only to members of the Force, while the latter was a trial in a court of record for a criminal offence applicable to all. The Court found the appellant guilty as charged and assessed a fine of $250 to be paid within one month or imprisonment for fifteen days.

The appellant appealed to the Court of Appeal for Saskatchewan. On February 16, 1984 the appeal was dismissed. The Court of Appeal held that the proceeding before the R.C.M.P. service tribunal was purely "disciplinary". In its view, that proceeding was concerned only with the professional aspect of the appellant's conduct. It was still necessary for the appellant to answer to society for the criminal aspect of his conduct. It held that s. 11(h) of the Charter did not prevent the appellant from being tried and charged for the criminal offence of assault because he was not found guilty and punished for that "offence" within the meaning of s. 11 of the Charter. Cameron J.A. stated:

A single act may have more than one aspect, and it may give rise to more than one legal consequence. It may, if it constitutes a breach of the duty a person owes to society, amount to a crime, for which the actor must answer to the public. At the same time, the act may, if it involves injury and a breach of one's duty to another, constitute a private cause of action for damages, for which the actor must answer to the person he injured. And that same act may have still another aspect to it: it may also involve a breach of the duties of one's office or calling, in which event the actor must account to his professional peers. For example a doctor who sexually assaults a patient will be liable, at one and the same time, to a criminal conviction at the behest of the state; to a judgment for damages, at the instance of the patient, and to an order of discipline on the motion of the governing council of his profession. Similarly a policeman who assaults a prisoner is answerable to the state for his crime; to the victim for damage he caused; and to the police force for discipline.

Cameron J.A. concluded:

In the light of this I think Constable Wigglesworth's contention must fail since the proceeding before the R.C.M.P. service tribunal was purely disciplinary. It was concerned only with the professional aspect of his conduct: the "offence" of which he was found guilty, a "major service offence", lay in the breach by him of his policeman's duty not to treat his prisoners harshly, cruelly, or with unnecessary violence. He must still answer to society for the criminal aspect of his conduct, or for his "criminal offence".

Cameron J.A. also added that he expressed no opinion as to the constitutionality of the power given to the R.C.M.P. under the Royal Canadian Mounted Police Act to imprison members of its force found guilty of major service offences.

By order dated May 22, 1986, Dickson C.J. stated the following constitutional questions:

1. Is a prosecution by the Crown for the offence of common assault pursuant to s. 245(1) of the Criminal Code of Canada, in relation to an act for which the accused has been previously convicted and fined for an offence of unnecessary violence towards a prisoner contrary to s. 25(1) and Part II of the Royal Canadian Mounted Police Act, in violation of s. 11(h) of the Canadian Charter of Rights and Freedoms?

2. If a prosecution by the Crown for the offence of common assault pursuant to s. 245(1) of the Criminal Code of Canada in relation to an act for which the accused has been previously convicted and fined for an offence of unnecessary violence towards a prisoner contrary to s. 25(1) and Part II of the Royal Canadian Mounted Police Act violates s. 11(h) of the Canadian Charter of Rights and Freedoms, is the subsequent prosecution by the Crown justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

3. The Issue

Section 11 of the Charter reads as follows:

11. Any person charged with an offence has the right:

(a) to be informed without reasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e) not to be denied reasonable bail without just cause;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

As mentioned above, the first question to be considered is whether the appellant has been "charged with an offence" within the meaning of the opening words of s. 11. The proper approach to Charter interpretation was set out by this Court in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295. At page 344, Dickson C.J. stated:

The meaning of a right or freedom guaranteed by the Charter [is] to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.

. . . this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.

There have been a large number of cases decided on the issue whether the accused has been "charged with an offence" within the meaning of the section. A number of these cases have recognized a so‑called "disciplinary exception" to the application of s. 11. Thus, in R. v. Mingo (1982), 1982 CanLII 376 (BC SC), 2 C.C.C. (3d) 23 (B.C.S.C.), s. 11(h) was held to be inapplicable to a criminal prosecution for the same conduct which had been the subject of disciplinary proceedings against an inmate. A similar result has been reached in cases dealing with proceedings following a conviction for a disciplinary offence under the Penitentiary Service Regulations: for example, Yeomans v. Gaw (1985), 1985 CanLII 5538 (FCA), 22 C.C.C. (3d) 311 (F.C.A.), and Howard and Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution (1983), 1983 CanLII 2911 (FC), 8 C.C.C. (3d) 557 (F.C.T.D.), subsequently reversed but in reliance on s. 7 of the Charter at 1985 CanLII 5581 (FCA), [1984] 2 F.C. 642 (C.A.); contra: Russell v. Radley, 1984 CanLII 5392 (FC), [1984] 1 F.C. 543 (T.D.); Re Peltari and Director of the Lower Mainland Regional Correctional Centre (1984), 1984 CanLII 467 (BC SC), 15 C.C.C. (3d) 223 (B.C.S.C.); and Knockaert v. Commissioner of Corrections (1986), 1986 CanLII 6815 (FC), 18 Admin. L.R. 273 (F.C.T.D.), subsequently upheld by 1986 CanLII 6884 (FCA), [1987] 2 F.C. 202 (C.A.) The same conclusion that s. 11 does not apply to disciplinary proceedings has been reached in cases involving proceedings brought pursuant to professional disciplinary statutes: see, for example, Re James and Law Society of British Columbia (1982), 1982 CanLII 685 (BC SC), 143 D.L.R. (3d) 379 (B.C.S.C.); Rosenbaum v. Law Society of Manitoba, 1983 CanLII 2972 (MB QB), [1983] 5 W.W.R. 752 (Man. Q.B.); Belhumeur v. Discipline Committee of Quebec Bar Association (1983), 1983 CanLII 5299 (QC CS), 34 C.R. (3d) 279 (Que. S.C.); Re Law Society of Manitoba and Savino (1983), 1983 CanLII 2995 (MB CA), 1 D.L.R. (4th) 285 (Man. C.A.); Re Fang and College of Physicians & Surgeons of Alberta (1985), 1985 ABCA 291, 25 D.L.R. (4th) 632 (Alta. C.A.)

The breadth of the opening words of s. 11 "any person charged with an offence" suggests that the section may well apply to non‑criminal proceedings. A few cases support this interpretation, holding that the rights guaranteed by s. 11 of the Charter are available to those "charged" with disciplinary offences. In Re Nash and The Queen (1982), 1982 CanLII 3876 (NL PC), 70 C.C.C. (2d) 490 (Nfld. Prov. Ct.), it was submitted before Kennedy Prov. Ct. J. that an internal disciplinary panel of the Royal Newfoundland Constabulary contravened s. 11(d) of the Charter because it was not an independent and impartial tribunal. In considering the meaning of the word "offence" in s. 11(d), Kennedy Prov. Ct. J. stated at p. 494:

The word "offence" is broad enough to apply to any breach or charge whereby an accused can be punished. "Offence" is broad enough to apply to any of the actions taken against members of self‑governing professional groups and associations and is also applicable to offences involving breaches of codes of conduct for such groups as police forces and members of the armed services.

An equally broad interpretation of the word "offence" appears in Re Lazarenko and Law Society of Alberta (1983), 1983 CanLII 1131 (AB KB), 4 D.L.R. (4th) 389 (Alta. Q.B.), at p. 398 (subsequently disapproved by the Alberta Court of Appeal in Re Fang and College of Physicians & Surgeons of Alberta, supra). In R. v. B & W Agricultural Services Ltd. (1982), 3 C.R.R. 354 (B.C. Prov. Ct.), the accused was charged with a violation of the Aeronautics Act even although his licence had already been suspended for 30 days by an Air Transport Committee. Shupe Prov. Ct. J., noting that the term "offence" in s. 11 of the Charter was much broader than the term "criminal offence" in s. 2(f) of the Canadian Bill of Rights, R.S.C. 1970, App. III, granted the accused's request for a stay of proceedings based on s. 11(h) of the Charter. There is also some academic support for the broader interpretation of the word "offence" in s. 11. Morris Manning, in Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982 (1983) states at p. 362 that the breach of a law which carries a penalty is a "penal matter" and is thus an "offence". He adds that the absence of the word "criminal" is indicative of the intent of the framers of the Charter to have s. 11 apply to more than purely criminal offences. At page 83 in his text on Legal Rights in the Canadian Charter of Rights and Freedoms: A Manual of Issues and Sources (1982), McDonald J. states:

... "offence" may include ... "offences which may be committed only by persons who are members of certain organizations, such as the Armed Forces and the Royal Canadian Mounted Police.... The word "offence", which signifies "a breach of law" or "an infraction of law", may be so broad as to include conduct which constitutes a ground upon which, by statute, a professional body may impose discipline upon its members, by disqualification, suspension or a fine.

It is my view that the narrower interpretation of s. 11 favoured by the majority of the authorities referred to above is in fact the proper interpretation of the section. The rights guaranteed by s. 11 of the Charter are available to persons prosecuted by the State for public offences involving punitive sanctions, i.e., criminal, quasi‑criminal and regulatory offences, either federally or provincially enacted. A number of factors impel me to this conclusion.

I turn first to the text of s. 11. The Ontario Court of Appeal in Trumbley and Pugh v. Metropolitan Toronto Police (sub nom. Re Trumbley and Fleming) (1986), 1986 CanLII 146 (ON CA), 55 O.R. (2d) 570, in concluding that s. 11 is concerned with only criminal or penal matters, properly observed that "the clear impression created by s. 11, read as a whole, is that it is intended to provide procedural safeguards relating to the criminal law process". Section 11 contains terms which are classically associated with criminal proceedings: "tried", "presumed innocent until proven guilty", "reasonable bail", "punishment for the offence", "acquitted of the offence" and "found guilty of the offence". Indeed, some of the rights guaranteed in s. 11 would seem to have no meaning outside the criminal or quasi‑criminal context. As Hugessen A.C.J.S.C. stated in Belhumeur v. Discipline Committee of Quebec Bar Association, supra, at p. 281, s. 11 [TRANSLATION] "is directed exclusively at procedure in criminal and penal matters". This same observation was made by Stevenson J.A. in Re Barry and Alberta Securities Commission (1986), 1986 ABCA 34, 25 D.L.R. (4th) 730 (Alta. C.A.), at p. 734, and by Monnin C.J. in Re Law Society of Manitoba and Savino, supra, at p. 292.

The Ontario Court of Appeal in Trumbley noted that the legislative history of the section indicates that it was not intended to be restricted solely to criminal law but was meant to extend to "penal proceedings" as well. Section 2(f) of the Canadian Bill of Rights reads as follows:

2. No law of Canada ... shall be construed or applied so as to

(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; . . . [Emphasis added.]

Section 2(f) differs from s. 11 of the Charter in that it refers to a "criminal offence" whereas the Charter refers only to an "offence". As already mentioned, some authorities see this difference as intended to give s. 11 a broader application than mere "criminal offences": see R. v. B & W Agricultural Services Ltd., supra; Morris Manning, Rights, Freedoms and the Courts, supra. But this leaves open the issue of how much broader the application of s. 11 should be. One possible inference is that the word "criminal" was deleted in order to ensure that s. 11 would also be applicable to summary conviction and provincial offence prosecutions under quasi‑criminal public welfare statutes. The Canadian Bill of Rights was a federal statute which had no application to prosecutions of provincial offences created pursuant to s. 92(15) of the Constitution Act, 1867. I would agree with the conclusion of Toy J. in R. v. Mingo, supra, at p. 36:

In my respectful view, the authors of the new Charter, when they employed the unqualified word "offence" as opposed to "criminal offence", were doing nothing more than providing for the equal protection of Canadian citizens from breaches of their rights under provincial as well as federal laws in so far as public as opposed to private or domestic prohibitions were concerned.

The same view was expressed by Monnin C.J.M. in Re Law Society of Manitoba and Savino, supra, at p. 292:

Section 11 speaks of a person charged with an offence; its nine subsections deal with criminal matters....

Its main purpose is matters dealing with criminal offences....

Section 11 certainly was primarily meant to cover crimes or quasi‑ crimes whether under federal or provincial legislation.

The marginal note to s. 11 seems to support this interpretation of the section. It reads "Proceedings in criminal and penal matters". The Attorney General for Ontario and the respondent submitted, however, that the Court ought not to place any emphasis on the marginal note to s. 11 in interpreting the section. There is no doubt that the traditional view was that marginal notes could not be used as aids to interpretation as they formed no part of the Act which was passed by Parliament: see E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 133; P. B. Maxwell, Maxwell on the Interpretation of Statutes (12th ed. 1969), at p. 10; W. F. Craies, Craies on Statute Law (7th ed. 1971), at p. 195. But reference to marginal notes has been made in some English authorities: see, for example, Eastern Counties and London and Blackwall Railway Cos. v. Marriage (1860), 9 H.L. Cas. 31, at p. 41; Sheffield Waterworks Co. v. Bennett (1872), L.R. 7 Ex. 409, at p. 421; Stephens v. Cuckfield Rural District Council, [1960] 2 All E.R. 716 (C.A.), at p. 720. And this Court has used statutory headings to assist in interpreting sections of the Charter: see Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357. In that case, Estey J., writing for a unanimous Court, held that the headings were deliberately included as part of the Charter and formed part of the resolution which Parliament debated. At pages 376‑77 he stated:

It is clear that these headings were systematically and deliberately included as an integral part of the Charter for whatever purpose. At the very minimum, the Court must take them into consideration when engaged in the process of discerning the meaning and application of the provisions of the Charter. The extent of the influence of a heading in this process will depend upon many factors including (but the list is not intended to be all‑embracing) the degree of difficulty by reason of ambiguity or obscurity in construing the section; the length and complexity of the provision; the apparent homogeneity of the provision appearing under the heading; the use of generic terminology in the heading; the presence or absence of a system of headings which appear to segregate the component elements of the Charter; and the relationship of the terminology employed in the heading to the substance of the headlined provision.

...I conclude that an attempt must be made to bring about a reconciliation of the heading with the section introduced by it. If, however, it becomes apparent that the section when read as a whole is clear and without ambiguity, the heading will not operate to change that clear and unambiguous meaning. Even in that midway position, a court should not, by the adoption of a technical rule of construction, shut itself off from whatever small assistance might be gathered from an examination of the heading as part of the entire constitutional document.

It must be acknowledged, however, that marginal notes, unlike statutory headings, are not an integral part of the Charter: see Canadian Pacific Ltd. v. Attorney General of Canada, 1986 CanLII 69 (SCC), [1986] 1 S.C.R. 678, at p. 682. The case for their utilization as aids to statutory interpretation is accordingly weaker. I believe, however, that the distinction can be adequately recognized by the degree of weight attached to them. I find some support in the marginal note therefore for the proposition that the opening words of s. 11 "charged with an offence" restrict the application of the section to criminal or quasi‑criminal proceedings and proceedings giving rise to penal consequences.

Another factor which leads me to adopt a somewhat narrow definition of the opening words of s. 11 is a concern for the future coherent development of the section if it is made applicable to a wide variety of proceedings. Unless the section is restricted to criminal or penal matters there may be serious difficulty in giving the section a reasonably consistent application. The particular content of the various rights set out in s. 11 may well vary according to the type of proceeding if a broader definition is given to the opening words of the section. It is beyond question that those rights are accorded to those charged with criminal offences, to those who face the prosecutorial power of the State and who may well suffer a deprivation of liberty as a result of the exercise of that power. The content of those rights ought not to suffer from a lack of predictability or a lack of clarity because of a universal application of the section. As is obvious from a study of the various rights enumerated in the section, they are crucial fundamental rights whose meaning ought to be made crystal clear to the authorities who prosecute the offences falling within the section. For this reason it is, in my view, preferable to restrict s. 11 to the most serious offences known to our law, i.e., criminal and penal matters and to leave other "offences" subject to the more flexible criteria of "fundamental justice" in s. 7.

While it is easy to state that those involved in a criminal or penal matter are to enjoy the rights guaranteed by s. 11, it is difficult to formulate a precise test to be applied in determining whether specific proceedings are proceedings in respect of a criminal or penal matter so as to fall within the ambit of the section. The phrase "criminal and penal matters" which appears in the marginal note would seem to suggest that a matter could fall within s. 11 either because by its very nature it is a criminal proceeding or because a conviction in respect of the offence may lead to a true penal consequence. I believe that a matter could fall within s. 11 under either branch.

There are many examples of offences which are criminal in nature but which carry relatively minor consequences following conviction. Proceedings in respect of these offences would nevertheless be subject to the protections of s. 11 of the Charter. It cannot be seriously contended that, just because a minor traffic offence leads to a very slight consequence, perhaps only a small fine, that offence does not fall within s. 11. It is a criminal or quasi‑criminal proceeding. It is the sort of offence which by its very nature must fall within s. 11. I would agree, therefore, with the comments made by Linden J. in Re McCutcheon and City of Toronto (1983), 1983 CanLII 1629 (ON SC), 147 D.L.R. (3d) 193 (H.C.) In that case, the accused claimed the benefit of s. 11 following the alleged commission of a parking offence. At page 205 Linden J. said:

This provision of the Charter is available only to persons charged with an offence. On my reading of the by‑laws and the legislation, the applicant is such a person, having been charged with offences when the summonses were issued against her.

There can be no question that parking infractions are "offences" as that word is used in s. 11 of the Charter. The respondents contend that these are not the types of transgressions against society s. 11 of the Charter is directed at, since there is virtually no stigma attached to a parking ticket. In my view, however, the degree of stigma is of no significance.

In my view, if a particular matter is of a public nature, intended to promote public order and welfare within a public sphere of activity, then that matter is the kind of matter which falls within s. 11. It falls within the section because of the kind of matter it is. This is to be distinguished from private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited private sphere of activity: see, for example, Re Law Society of Manitoba and Savino, supra, at p. 292, Re Malartic Hygrade Gold Mines (Canada) Ltd. and Ontario Securities Commission (1986), 1986 CanLII 2653 (ON SC), 54 O.R. (2d) 544 (H.C.), at p. 549, and Re Barry and Alberta Securities Commission, supra, at p. 736, per Stevenson J.A. There is also a fundamental distinction between proceedings undertaken to promote public order and welfare within a public sphere of activity and proceedings undertaken to determine fitness to obtain or maintain a licence. Where disqualifications are imposed as part of a scheme for regulating an activity in order to protect the public, disqualification proceedings are not the sort of "offence" proceedings to which s. 11 is applicable. Proceedings of an administrative nature instituted for the protection of the public in accordance with the policy of a statute are also not the sort of "offence" proceedings to which s. 11 is applicable. But all prosecutions for criminal offences under the Criminal Code and for quasi‑criminal offences under provincial legislation are automatically subject to s. 11. They are the very kind of offences to which s. 11 was intended to apply.

This is not to say that if a person is charged with a private, domestic or disciplinary matter which is primarily intended to maintain discipline, integrity or to regulate conduct within a limited private sphere of activity, he or she can never possess the rights guaranteed under s. 11. Some of these matters may well fall within s. 11, not because they are the classic kind of matters intended to fall within the section, but because they involve the imposition of true penal consequences. In my opinion, a true penal consequence which would attract the application of s. 11 is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than for the maintenance of internal discipline within the limited sphere of activity. In "Annotation to R. v. Wigglesworth" (1984), 1984 CanLII 2275 (SK CA), 38 C.R. (3d) 388, at p. 389, Professor Stuart states:

... other punitive forms of disciplinary measures, such as fines or imprisonment, are indistinguishable from criminal punishment and should surely fall within the protection of s. 11(h).

I would agree with this comment but with two caveats. First, the possibility of a fine may be fully consonant with the maintenance of discipline and order within a limited private sphere of activity and thus may not attract the application of s. 11. It is my view that if a body or an official has an unlimited power to fine, and if it does not afford the rights enumerated under s. 11, it cannot impose fines designed to redress the harm done to society at large. Instead, it is restricted to the power to impose fines in order to achieve the particular private purpose. One indicium of the purpose of a particular fine is how the body is to dispose of the fines that it collects. If, as in the case of proceedings under the Royal Canadian Mounted Police Act, the fines are not to form part of the Consolidated Revenue Fund but are to be used for the benefit of the Force, it is more likely that the fines are purely an internal or private matter of discipline: Royal Canadian Mounted Police Act, s. 45. The second caveat I would raise is that it is difficult to conceive of the possibility of a particular proceeding failing what I have called the "by nature" test but passing what I have called the "true penal consequence" test. 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.

Before turning to the application of the law to the facts of this case, I want to emphasize that nothing in the above discussion takes away from the possibility that constitutionally guaranteed procedural protections may be available in a particular case under s. 7 of the Charter even although s. 11 is not available. The appellant in this case has chosen to base his case solely on s. 11 of the Charter. In view of this I make no comment on the applicability of s. 7.

It is clear that the R.C.M.P. Code of Discipline is concerned with the maintenance of discipline and integrity within the Force. It is designed to regulate conduct within a limited private sphere of activity, i.e., conduct relevant to one's position as a member of the R.C.M.P. In considering the offences set out in the Royal Canadian Mounted Police Act in The Queen and Archer v. White, 1955 CanLII 48 (SCC), [1956] S.C.R. 154, Rand J. stated at p. 158:

...the delinquencies in s. 30 [of the Royal Canadian Mounted Police Act] are strictly of domestic discipline, that is, the member, by joining the Force, has agreed to enter into a body of special relations, to accept certain duties and responsibilities, to submit to certain restrictions upon his freedom of action and conduct and to certain coercive and punitive measures prescribed for enforcing fulfillment of what he has undertaken. These terms are essential elements of a status voluntarily entered into which affect what, by the general law, are civil rights, that is, action and behaviour which is not forbidden him as a citizen.

At page 168 Abbott J. stated:

The Royal Canadian Mounted Police Act and the regulations made thereunder constitute a code of law regulating the recruitment, administration and discipline of the Force.

In Inkster v. Radey, 1979 CanLII 4169 (FCA), [1979] 2 F.C. 457 (C.A.), Le Dain J. stated at p. 459:

The major service offences specified in section 25 of the Act obviously relate to matters of discipline. They are not, generally speaking, offences of the public character punishable under the Criminal Code or other statutes of a criminal nature, although they might in some cases give rise to prosecution under the criminal law.

It would therefore seem that the proceedings before the Royal Canadian Mounted Police Service Court fail what I have called the "by nature" test. They are neither criminal proceedings nor quasi‑criminal proceedings. They do not appear to be the kind of proceedings which fall within the ambit of s. 11. But it is apparent that an officer charged under the Code of Discipline faces a true penal consequence. He or she may be imprisoned for one year pursuant to s. 36(1) of the Royal Canadian Mounted Police Act if he or she is found guilty of a major service offence. As was stated by Joyal J. in Van Rassel v. Canada, 1986 CanLII 6871 (FC), [1987] 1 F.C. 473, a case which also dealt with a s. 11(h) claim with respect to proceedings for a major service offence under the Royal Canadian Mounted Police Act, "The statute as a consequence [of the provision for imprisonment] is as much a penal statute as is the Criminal Code" (at p. 484). This would seem, therefore, to be that unusual case where proceedings have failed the "by nature" test but have passed the "true penal consequence" test. As I have indicated above, in a case of conflict the "by nature" test must give way to the "true penal consequence" test. I find, therefore, that s. 11 applies to proceedings in respect of a major service offence before the Royal Canadian Mounted Police Service Court. Is the appellant entitled then to have the prosecution for the alleged criminal assault stayed on the ground that punishment for that offence would result in double punishment of the appellant for the same offence contrary to s. 11(h) of the Charter?

This Court in R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480, recently examined the scope of the rule against multiple convictions enunciated in Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. In Prince the accused's single act caused injury to one person and allegedly caused the death of another person. The accused was convicted of causing bodily harm in respect of the injured victim. The Court considered whether she could also be tried for manslaughter in respect of the deceased victim. The Court held that she could be so tried. In its view, although a single act of the accused grounded both charges, there was not sufficient correspondence between the elements of the two offences to sustain the operation of the rule against multiple convictions. The two offences, the Court found, involved distinct elements. In the course of his reasons Dickson C.J. discussed the requirement that there be a sufficient nexus between the offences charged before the rule against multiple convictions is triggered. He said at pp. 494‑95:

In my opinion, the weight of authority since Kienapple also supports the proposition that there must be sufficient nexus between the offences charged to sustain the rule against multiple convictions. In a unanimous judgment in McKinney v. The Queen, 1980 CanLII 164 (SCC), [1980] 1 S.C.R. 401, delivered orally by Laskin C.J., the Court saw no reason for interfering with a decision of the Manitoba Court of Appeal . . . . McKinney and others were charged and convicted of hunting out of season and hunting at night with lights contrary to ss. 16(1) and 19(1), respectively, of the Wildlife Act, R.S.M. 1970, c. W140. Both charges arose out of the same hunting incident. O'Sullivan J.A. for the majority held that the case involved two "delicts". Monnin J.A., dissenting on another issue, said that hunting out of season and hunting with lights were two different "matters", totally separate one from the other and not alternative one to the other. The judges of the Court of Appeal all agreed that Kienapple was inapplicable. Thus, notwithstanding there was but a single act of hunting, there were distinct delicts, causes or matters which would sustain separate convictions.

If an accused is guilty of several wrongs, there is no injustice in his or her record conforming to that reality.

In the context of proceedings before disciplinary tribunals there is ample authority for the view that disciplinary offences are separate and distinct from criminal offences for the purpose of the rule against multiple convictions: see Re Pelissero and Loree (1982), 1982 CanLII 3231 (ON SCDC), 140 D.L.R. (3d) 676 (Ont. H.C.); Re MacDonald and Marriott (1984), 1984 CanLII 829 (BC SC), 7 D.L.R. (4th) 697 (B.C.S.C.); Van Rassel v. Canada, supra; Re Bridges and Bridges (Ont. Prov. Ct., per Colter Prov. Ct. J., unreported); R. v. DeBaie (1983), 1983 CanLII 5090 (NS CA), 60 N.S.R. (2d) 78 (N.S.C.A.), and R. v. Belliveau (1984), 1984 CanLII 4203 (NB CA), 55 N.B.R. (2d) 82 (C.A.), at p. 86. In their text on The Doctrine of Res Judicata (2nd ed. 1969), Spencer Bower and Turner state at p. 279:

An example is readily found in an inquiry instituted by the disciplinary authority of a professional body, with a view to the expulsion of one against whom conduct infamous in a professional respect is alleged. In such a case it may be that the conduct alleged is no more and no less than conduct in respect of which the accused person has already been acquitted by a criminal court on a criminal charge. Neither a conviction nor an acquittal before a criminal court on a criminal charge will bar the use of the same conduct before such a tribunal on an application to suspend or expel; for the purpose of the proceeding is not to punish the practitioner for the commission of an offence as such, but to exercise disciplinary power over the members of a profession so as to ensure that their conduct conforms to the standards of the profession.

I would hold that the appellant in this case is not being tried and punished for the same offence. The "offences" are quite different. One is an internal disciplinary matter. The accused has been found guilty of a major service offence and has, therefore, accounted to his profession. The other offence is the criminal offence of assault. The accused must now account to society at large for his conduct. He cannot complain, as a member of a special group of individuals subject to private internal discipline, that he ought not to account to society for his wrongdoing. His conduct has a double aspect as a member of the R.C.M.P. and as a member of the public at large. To borrow from the words of the Chief Justice quoted above, I am of the view that the two offences were "two different `matters', totally separate one from the other and not alternative one to the other". While there was only one act of assault there were two distinct delicts, causes or matters which would sustain separate convictions. I would respectfully adopt the following passage from the reasons of Cameron J.A. in the court below:

A single act may have more than one aspect, and it may give rise to more than one legal consequence. It may, if it constitutes a breach of the duty a person owes to society, amount to a crime, for which the actor must answer to the public.... And that same act may have still another aspect to it: it may also involve a breach of the duties of one's office or calling, in which event the actor must account to his professional peers. For example a doctor who sexually assaults a patient will be liable, at one and the same time, to a criminal conviction at the behest of the state; to a judgment for damages, at the instance of the patient, and to an order of discipline on the motion of the governing council of his profession. Similarly a policeman who assaults a prisoner is answerable to the state for his crime; to the victim for damage he caused; and to the police force for discipline.

For these reasons I would dismiss the appeal. I would answer the constitutional questions as follows:

1. Is a prosecution by the Crown for the offence of common assault pursuant to s. 245(1) of the Criminal Code of Canada, in relation to an act for which the accused has been previously convicted and fined for an offence of unnecessary violence towards a prisoner contrary to s. 25(1) and Part II of the Royal Canadian Mounted Police Act, in violation of s. 11(h) of the Canadian Charter of Rights and Freedoms?

Answer: No.

2. If a prosecution by the Crown for the offence of common assault pursuant to s. 245(1) of the Criminal Code of Canada in relation to an act for which the accused has been previously convicted and fined for an offence of unnecessary violence towards a prisoner contrary to s. 25(1) and Part II of the Royal Canadian Mounted Police Act violates s. 11(h) of the Canadian Charter of Rights and Freedoms, is the subsequent prosecution by the Crown justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

Answer: In view of the answer to question 1 it is not necessary to answer this question.

The following are the reasons delivered by

Estey J. (dissenting)‑‑I am in complete agreement with the judgment of Justice Wilson from p. 546 through p. 564 line b‑4 of the judgment, particularly the conclusion that where there is a "true penal consequence" it cannot be said as a matter of law that a tribunal with the responsibility of conviction and sentencing is but a disciplinary court administering justice to a professional or other body of specialized persons segregated for this purpose from the general community. Therefore, I agree with Wilson J. when she concludes that s. 11 of the Charter applies to a trial conducted pursuant to the Royal Canadian Mounted Police Act, R.S.C. 1970, c. R‑9, for a "major service offence".

With much reflection and all due respect I do not follow the line thereafter pursued in the concluding few pages of my colleague's judgment in this appeal.

The distinguishing feature of the tribunal sitting under the Royal Canadian Mounted Police Act is that this tribunal was equipped by Parliament to apply, following the registration of a conviction, a scale of punishment ranging from a reprimand through a fine up to $500 to an ultimate penalty of one‑year imprisonment. The statute in addition (s. 38) empowers the convicting officer of the accused to recommend his removal from the Force upon conviction. It can hardly be said, given the power under the Royal Canadian Mounted Police Act to couple a one‑year imprisonment sentence with a virtually inevitable dismissal from the Force upon conviction, that Parliament intended that the scale of punishment would reflect only the internal disciplinary interest of the R.C.M.P. and not the larger community interest in the suppression of the crime of assault wherever committed.

It is not irrelevant to note that Parliament when enacting the Criminal Code did anticipate the existence of a body outside the traditional courts administering criminal law in or outside the Criminal Code when it enacted s. 11 of the Code:

11. Where an act or omission is an offence under more than one Act of the Parliament of Canada, whether punishable by indictment or on summary conviction, a person who does the act or makes the omission is, unless a contrary intention appears, subject to proceedings under any of those Acts, but is not liable to be punished more than once for the same offence.

The section makes no reference to any particular tribunal but deals entirely with a prohibition against punishment more than once for the same offence. There is no question but that here the one accused committed the single offence of common assault and that he has been convicted and sentenced for that offence in a court established by Parliament for that purpose and is now faced with the like prosecution under another Act of Parliament, the Criminal Code and before another court.

In R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480, the Chief Justice, in discussing the principles underlying the rule against multiple convictions, states (at pp. 498‑99):

I conclude, therefore, that the requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.

The facts in Prince, supra, are quite different from the circumstances in this case. Not only were there two victims of the one stabbing action, but also, the two offences under consideration, viz., causing bodily harm and manslaughter, required proof of different elements. The first required proof of bodily harm and the second required proof of the death of the baby. Clearly there was an insufficient legal nexus to apply the rule against multiple convictions in that case.

This case is completely different. Only one factual assault has occurred for which the appellant has been tried and punished. The potential imposition of a one‑year imprisonment pursuant to a "trial" by the tribunal clearly points to this procedure as being in the nature of punishment to redress a social wrong and not only in the nature of disciplinary proceedings. The possibility of dismissal from the Force pursuant to s. 38 of the statute reinforces this view. With respect, I cannot agree with the view of Wilson J. that the two offences are in any way totally separate from or different from each other.

The test must be the practical one of determining whether the first court upon registering a conviction was performing a task assigned by Parliament which by the scale of punishment available to the tribunal is readily recognizable as a process in which the general public's interest in the administration of criminal law is recognized over and above the limited interest of internal discipline.

For the reasons given above it is my view that this test is met in this case. The subsequent proceeding under s. 245(1) of the Criminal Code falls squarely within the prohibition in s. 11(h) of the Charter that any person " ... finally found guilty and punished for the offence" has the right ". . . not to be tried or punished for it again". Furthermore, a breach of s. 11(h) rights cannot be justified by any conceivable s. 1 reasonable limits analysis. In any case, the Crown here has made no attempt to do so. The right to be tried and punished only once for an offence cannot, in my view, be fettered or circumscribed by Parliament. I would allow the appeal and answer the first constitutional question "yes", and the second constitutional question "no".

Appeal dismissed, Estey J. dissenting; the first constitutional question should be answered in the negative.

Solicitor for the appellant: Gerald N. Allbright, Saskatoon.

Solicitor for the respondent: The Attorney General for Saskatchewan, Regina.

Solicitor for the intervener the Attorney General of Canada: Frank Iacobucci, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: Richard F. Chaloner, Toronto.

Solicitor for the intervener the Attorney General of Quebec: Daniel Jacoby, Québec.