A-576-78
Superintendent Norman D. Inkster, Royal Canadi-
an Mounted Police (Appellant)
v.
William Patrick Radey (Respondent)
Court of Appeal, Urie, Ryan and Le Dain JJ.—
Ottawa, April 11 and 12, 1979.
Prerogative writs — Prohibition — Appeal from order of
Trial Division prohibiting the continuing of trial, held pursu
ant to Royal Canadian Mounted Police Act — Prohibition
granted on ground that proceedings barred by s. 721(2) of
Criminal Code — Whether s. 721(2) of Criminal Code applies
to proceedings under Part II of Royal Canadian Mounted
Police Act for trial of a service offence — If so, whether or not
it deprives trial officer of jurisdiction justifying an order of
prohibition — Appeal allowed — Criminal Code, R.S.C. 1970,
c. C-34, s. 721(2) — Interpretation Act, R.S.C. 1970, c. I-23,
ss. 3, 27.
APPEAL.
COUNSEL:
Luther P. Chambers and Duff Friesen for
appellant.
William B. Gill, Q.C. for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Gill Cook, Calgary, for respondent.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an appeal from an order of
the Trial Division prohibiting Superintendent
Norman D. Inkster of the Royal Canadian Mount
ed Police from continuing with the trial of the
respondent William Patrick Radey pursuant to the
provisions of the Royal Canadian Mounted Police
Act, R.S.C. 1970, c. R-9 on charges of having
committed major service offences.
The ground on which the order of prohibition
was granted was that the proceedings are barred
by subsection 721(2) of the Criminal Code, R.S.C.
1970, c. C-34, which provides:
721... .
(2) No proceedings shall be instituted more than six months
after the time when the subject-matter of the proceedings
arose.
The order is attacked on the ground that subsec
tion 721(2) does not apply to proceedings under
Part II of the Royal Canadian Mounted Police
Act for the trial of a service offence, and on the
further ground that if it does apply it does not
deprive the trial officer of jurisdiction so as to
justify an order of prohibition.
The respondent, a corporal in the Royal Canadi-
an Mounted Police, was charged on September 11,
1978 with having committed certain service
offences on March 24, 1977 and between May 6,
1977 and June 2, 1977. The trial began on Octo-
ber 5, 1978 before a service tribunal composed of
Superintendent Inkster. At the outset a motion
was made on behalf of the respondent for dismissal
of the charges on the ground that the trial officer
was without jurisdiction. The motion was dis
missed and the respondent applied to the Federal
Court for a writ of prohibition which resulted in
the order from which the present appeal is
brought.
The question whether subsection 721(2) of the
Criminal Code applies to the proceedings institut
ed against the respondent under the provisions of
Part II of the Royal Canadian Mounted Police
Act turns on the application of section 27 of the
Interpretation Act, R.S.C. 1970, c. I-23 to these
proceedings. Section 27 reads:
27. (1) Where an enactment creates an offence,
(a) the offence shall be deemed to be an indictable offence if
the enactment provides that the offender may be prosecuted
for the offence by indictment;
(8) 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
(e) if the offence is one for which the offender may be
prosecuted by indictment or for which he is punishable on
summary conviction, no person shall be considered to have
been convicted of an indictable offence by reason only of
having been convicted of the offence on summary conviction.
(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 enact
ment otherwise provides.
(3) In a commission, proclamation, warrant or other docu
ment relating to criminal law or procedure in criminal matters
(a) a reference to an offence for which the offender may be
prosecuted by indictment shall be construed as a reference to
an indictable offence; and
(b) a reference to any other offence shall be construed as a
reference to an offence for which the offender is punishable
on summary conviction.
Section 3 of the Interpretation Act provides:
3. (1) Every provision of this Act extends and applies, unless
a _ contrary intention appears, to every enactment, whether
enacted before or after the commencement of this Act.
(2) The provisions of this Act apply to the interpretation of
this Act.
(3) Nothing in this Act excludes the application to an
enactment of a rule of construction applicable thereto and not
inconsistent with this Act.
The question, as I see it, is whether the provi
sions of Part II of the Royal Canadian Mounted
Police Act evince an intention that section 27 of
the Interpretation Act should not apply to the
offences created by that Part.
Part II of the Royal Canadian Mounted Police
Act, under the heading "Discipline", provides in
sections 25 to 45 for the definition, trial and
punishment of offences which are known as major
and minor service offences. The major service
offences specified in section 25 of the Act obvious
ly relate to matters of discipline. They are not,
generally speaking, offences of the public charac
ter punishable under the Criminal Code or other
statutes of a criminal law nature, although they
might in some cases give rise to prosecution under
the criminal law. The same is true of section 26,
which makes it a minor service offence to violate
or fail to comply with any standing order of the
Commissioner or any regulation made under the
authority of Part I. Part II contains special provi
sions for arrest, detention, investigation and
charge, trial by a service tribunal presided over by
an officer of the Force, punishment, and appeal to
the Commissioner who decides after receiving the
recommendation of a Board of Review. Speaking
of the provisions of sections 30 and 31 of the
former Royal Canadian Mounted Police Act,
R.S.C. 1952, c. 241, which specified offences and
provided for their trial and punishment, Rand J. in
The Queen v. White [1956] S.C.R. 154 said at p.
159: "Parliament has specified the punishable
breaches of discipline and has equipped the Force
with its own courts for dealing with them and it
needs no amplification to demonstrate the object
of that investment. Such a code is prima facie to
be looked upon as being the exclusive means by
which this particular purpose is to be attained."
This characterization applies, if anything, with
even greater force to the provisions of Part II of
the present Act which are more elaborate in their
regulation of the institution of proceedings, the
mode of trial and the right of appeal. There has
undoubtedly been an increased judicialization of
the managerial or administrative power of disci
pline, but the "offences" which are the object of
this very special disciplinary code are not in my
opinion offences of the kind contemplated by sec
tion 27 of the Interpretation Act which are
offences of a public nature to be tried in the
regular courts of criminal jurisdiction. I am, there
fore, of the view that section 27 does not apply to
the provisions of Part II of the Royal Canadian
Mounted Police Act, and accordingly subsection
721(2) of the Criminal Code does not apply to
them.
I would allow the appeal and set aside the order
of the Trial Division, but I would make no order as
to costs.
* * *
URIE J.: I agree.
* * *
RYAN J.: I agree.
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.