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T-4479-78
William Patrick Radey (Applicant)
v.
The Queen, Superintendent Norman D. Inkster, Royal Canadian Mounted Police, Commissioner Robert Simmons, Royal Canadian Mounted Police (Respondents)
Trial Division, Decary J.—Ottawa, October 24 and 30, 1978.
Prerogative writs — Prohibition — Jurisdiction — Trial by R.C.M.P. of service charges — Application to prohibit con tinuation of applicant's trial by Superintendent, and to prohib it Commissioner from deciding that further charges be pre pared and proceeded with against applicant — Whether or not six-month prescription limitation of summary convictions ap plicable to alleged offences — Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, ss. 25(a),(o), 31, 32(1),(2), 52 — Interpretation Act, R.S.C. 1970, c. I-23, s. 27(1),(2) — Criminal Code, R.S.C. 1970, c. C-34, s. 721(2).
APPLICATION. COUNSEL:
William B. Gill, Q.C. for applicant. Duff Friesen for respondents.
SOLICITORS:
Gill Cook, Calgary, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren dered in English by
DECARY J.: After having read motion and affidavit and heard counsel on said motion to have a writ of prohibition issue against Trial Officer Superintendent Inkster of the Royal Canadian Mounted Police to prohibit his continuing with the trial of the applicant and to have a writ of prohibi tion issue also against Commissioner Robert Sim- mons of the Royal Canadian Mounted Police to prohibit him from deciding that any further charges be prepared and proceeded with against the applicant.
And after having considered, inter alla, the following facts:
The charges concern alleged offences that would have occurred March 24, May 6 and June 2 of the year 1977;
The charges were laid on September 11, 1978; the time between the dates of the alleged offences and the date of the charges is from 15 to 18 months;
On the 5th day of October, 1978, motion was made by the applicant to the effect that the Trial Officer had no jurisdiction on the ground that the six-month prescription limitation of the summary convictions was applicable to the alleged offences;
On the 6th day of October 1978, the Trial Officer dismissed the motion on the ground that he had jurisdiction to hear the charges;
A motion to adjourn the trial in order to bring the proceedings in this Court was granted and the trial postponed to December 11, 1978.
Finding that:
The provisions of subsection 27(2) of the Inter pretation Act, R.S.C. 1970, c. I-23, read as follows:
27. ...
(2) All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of the Criminal Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides.
The Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9 does not otherwise provide in Part II in which paragraphs 25(a) and (o) under which the charges are laid are included; paragraphs 25(a) and (o) read as follows:
25. Every member who
(a) disobeys or refuses to obey the lawful command of, or strikes or threatens to strike, any other member who is his superior in rank or is in authority over him;
(o) conducts himself in a scandalous, infamous, disgrace ful, profane or immoral manner; or
is guilty of an offence, to be known as a major service offence, and is liable to trial and punishment as prescribed in this Part.
The Royal Canadian Mounted Police Act, far from stating that the Criminal Code does not apply, does refer expressly to the provisions of the Criminal Code relating to summary convic tions at section 31, reading as follows:
31. Whenever it appears to an officer or to a member in charge of a detachment or detail that a service offence has been committed, he shall make or cause to be made such investigation as he considers necessary, and for the purposes of any such examination an officer may examine any person on oath or affirmation, and may compel the attendance of witnesses in the same manner as if the investigation were a proceeding before justices under the provisions of the Crimi nal Code relating to summary convictions.
The provisions of paragraph 27(1)(b) of the Interpretation Act read as follows:
27. (1) Where an enactment creates an offence,
(b) the offence shall be deemed to be one for which the offender is punishable on summary conviction if there is nothing in the context to indicate that the offence is an indictable offence; and
There is nothing in subsections 32(1) and (2) of the Royal Canadian Mounted Police Act to indicate that the offence is not punishable on summary conviction, that section reading as follows:
32. (1) Where it appears to an officer that a member has committed a minor service offence and that he ought to be tried for the offence, the officer shall cause a written charge to be prepared and served on the member.
(2) Where, as a result of an investigation under section 31, it appears to an officer that a member has committed a major service offence, a report shall be made to the Commis sioner and if, in the opinion of the Commissioner, the member ought to be tried for the offence, he shall direct that a written charge be prepared and served on the member, and the Commissioner shall in his direction appoint the officer who is to preside at the trial.
In point of fact, there is nothing in Part II of the Royal Canadian Mounted Police Act indicating that the offence is not punishable on summary conviction; there being nothing in Part II of the Royal Canadian Mounted Police Act indicating that the offence is not punishable on summary conviction, then on account of the provisions of paragraph 27(1)(b) of the Interpretation Act,
the applicant is punishable, if so, on summary conviction;
The offences punishable under summary convic tions have a prescription limitation of six months by virtue of the provisions of subsection 721(2) of the Criminal Code, R.S.C. 1970, c. C-34 that read as follows:
721. ...
(2) No proceedings shall be instituted more than six months after the time when the subject-matter of the pro ceedings arose.
To give an interpretation to paragraph 27(1)(b) and subsection 27(2) such as there would be no prescription limitation on offences as laid against the applicant would give rise to a strange state of facts as the offences referred to in Part III of the Royal Canadian Mounted Police Act, like bribes, personation, etc., are all punishable on summary conviction and the limit on prosecution is two years by virtue of section 52:
52. No proceedings in respect of an offence under this Part shall be instituted more than two years after the time when the subject-matter of the proceedings arose.
The proceedings have been "instituted more than six months after the time when the subject- matter of the proceedings arose", as they were instituted 15 to 18 months afterwards;
The proceedings not having been instituted within six months from the time their subject- matter arose, these proceedings are null and void and the Trial Officer has no jurisdiction to try the applicant.
For the above reasons the Trial Officer, respondent Inkster, is prohibited continuing with the trial of the applicant as he has no jurisdiction to hear the charges, the whole with costs.
The application for a writ of prohibition issue against Commissioner Robert Simmons to prohibit him from directing that any further charges be prepared and proceeded with against the applicant is premature and has no basis and therefore is dismissed without costs.
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