T-1195-84
René Baillargeon, Sergeant, RCMP (Applicant)
v.
R. H. Simmonds, Commissioner, RCMP, P. M.
Cummins, Inspector, RCMP and J. F. J. Bossé,
Assistant Commissioner, RCMP (Respondents)
Trial Division, Rouleau J.-Montreal, June 18;
Ottawa, August 24, 1984.
Constitutional law - Charter of Rights - Administrative
inquiry on alleged importation of undeclared goods by RCMP
officer undertaken before criminal trial on charges re same
facts - Whether applicant's ss. 11(c), 13 and 15 Charter
rights infringed - Whether Board constitutionally defective
- Proceeding inappropriate for determination of said ques
tions - 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(c), 13, 15(1) - Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28, 50.
Jurisdiction - Federal Court Trial Division - Adminis
trative inquiry on alleged importation of undeclared goods by
RCMP officer undertaken before criminal trial on charges re
same facts - Jurisdiction in Court to hear matter as decision
to hold inquiry purely administrative and as recourse to
statutory remedy not yet open - No jurisdiction in Court to
stay proceeding of other tribunal - Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, ss. 18, 28, 50 - Royal Canadian
Mounted Police Act, R.S.C. 1970, c. R-9, ss. 21(2), 41, 42, 43.
Judicial review - Prerogative writs - Prohibition
Administrative inquiry on alleged importation of undeclared
goods by RCMP officer undertaken before criminal trial on
charges re same facts - Whether principles of presumption of
innocence, non-compellability of accused, right not to incrimi
nate oneself and right to fair trial offended against - Juris
diction in Court to hear matter as decision to hold inquiry
purely administrative and as recourse to statutory remedy not
yet open - No jurisdiction in Court to stay proceedings of
other tribunal - Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, ss. 18, 28, 50 - Royal Canadian Mounted Police Act,
R.S.C. 1970, c. R-9, ss. 21(2), 41, 42, 43 - 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(c), 13, 15(1).
The applicant was arrested for importation of undeclared
goods. As a result, criminal charges were brought against him
and he was to be tried before a Court of Sessions. Before the
trial could be held, the RCMP Discharge and Demotion Board
was requested by the Commissioner to hold a hearing on the
same matter to determine whether the applicant should be
discharged. This is an application for a writ of prohibition to
have the proceedings of that Board stayed.
Held, the application is dismissed. Contrary to respondents'
argument, this Court has jurisdiction to hear the matter as the
Commissioner's decision to hold the hearing is purely adminis
trative. The argument that this application is premature
because the statutory appeal procedure has not been exhausted
is without foundation as that remedy is available only after
conviction. The issue herein is essentially constitutional in
nature: it involves basic principles of protection of the accused
in criminal matters. Furthermore, while the Board may be
acting within the limits of its statutory duties, there is a
possibility that it may be constitutionally defective. However,
the constitutional questions cannot be examined upon an
application for prohibition. The Court would have considered
this issue had an appropriate action been commenced.
•
The Court cannot grant a writ of prohibition because it lacks
jurisdiction to stay proceedings of other tribunals.
CASE JUDICIALLY CONSIDERED
APPLIED:
Minister of Employment and Immigration Canada v.
Rodrigues, [1979] 2 F.C. 197; 98 D.L.R. (3d) 667
(C.A.).
COUNSEL:
Luc Carbonneau for applicant.
Normand Lemyre and André Brault for
respondents.
SOLICITORS:
Bluteau, Paquin, Carbonneau et Associés,
Montreal, for applicant.
Deputy Attorney General of Canada for
respondents.
The following is the English version of the
reasons for order rendered by
ROULEAU J.: This is an application by René
Baillargeon for a writ of prohibition barring
respondent Insp. P. M. Cummins from holding
hearings of the Discharge and Demotion Board,
which are being held for the purpose of recom
mending the discharge of applicant to Commis
sioner R. H. Simmonds.
Sgt. René Baillargeon has been a member of the
RCMP since 1961. Following an investigation con
ducted by his colleagues in the RCMP, he was
arrested at the customs port of Lacolle, Quebec.
He was found in possession of goods which had
apparently not been declared to the customs offi
cer on duty at the said customs port. This arrest
led eventually to charges in the Court of Sessions
in the city of St-Jean, brought by the RCMP. All
the events concerning the importation of unde
clared goods occurred in March and April 1983.
Applicant appeared before the Iberville district
Court on June 9, 1983 and a preliminary hearing
was fixed for August 2, 1983. There were four
further appearances on various dates, and after a
final appearance on January 31, 1984 Sgt. Baillar-
geon made an application to stay the proceedings
for abuse of process. The hearing began the same
day and continued on March 25, 1984. It resumed
on March 27 and 28, and was adjourned to April
24, 1984. On the last date, the hearing was set to
continue on May 7, 1984, and on that date was
postponed to May 22. The judge who presided at
the hearing adjourned the proceedings to Septem-
ber 24, in order to allow counsel to submit argu
ments and authorities regarding the said applica
tion.
On May 8, 1984 applicant appeared before Insp.
P. M. Cummins of the RCMP at headquarters in
Montreal, and was told by the chairman of the
Discharge and Demotion Board that his case
would be examined in terms of a possible dis
charge from the RCMP, to be based on a recom
mendation prepared by Assistant Commissioner
J. F. J. Bossé. He was told by the chairman of the
Board that after the presentation by the prosecu
tion's representative, and possibly certain wit
nesses, he would have to present the exhibits and
witnesses he considered necessary to his defence.
After these instructions applicant through his
counsel made an application to adjourn sine die,
on the ground that the exhibits and witnesses
necessary for both prosecution and defence were
exactly the same as for the action pending before
the judge in the criminal trial in St-Jean. This
situation could cause him serious and irreparable
harm. The hearing of this proceeding was
adjourned to May 9. The chairman decided to
grant a partial suspension with pay, to be in effect
until the decision of the Trial Judge at St-Jean; the
application made to the Board for a delay in the
hearing was denied.
The application for prohibition is now before
this Court, asking for a postponement sine die of
the hearing to be held before the RCMP Board,
based on section 13 and subsection 15(1) of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)], which read
as follows:
13. A witness who testifies in any proceedings has the right
not to have any incriminating evidence so given used to incrimi
nate that witness in any other proceedings, except in a prosecu
tion for perjury or for the giving of contradictory evidence.
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
Counsel for the applicant submitted that, if the
hearings of the Discharge and Demotion Board
were to proceed, his client would have to meet a
burden in order to make his defence against the
charges in this proceeding. In doing so, he would
have to incriminate himself with respect to the
criminal trial, since section 13 of the Charter
offered him no protection at the said trial, in view
of the nature of the Board.
He further submitted that it is a universally
recognized principle of Canadian law that every
one has a right to a full and complete defence. If
he had to disclose his witnesses and his defence as
to the facts before the Board, and the action in the
criminal court is conducted by the same investigat
ing officers on the same facts, the same events,
applicant would for all practical purposes suffer
irreparable harm to his defence in the criminal
court.
Counsel representing the respondents submitted,
first, that this Court has no jurisdiction since the
decision to hold the hearing is not an administra
tive one. The application should therefore be made
to the Federal Court of Appeal of Canada under
section 28 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10]. He further submitted that,
under section 50 of the Federal Court Act, this
Court has no jurisdiction to impose a stay of
proceedings on another court. Additionally, the
suspension imposed on Sgt. Baillargeon was with
pay, and delaying the hearing would cause the
RCMP unwarranted expense. Finally, he argued
that an appeal procedure already exists under the
Royal Canadian Mounted Police Act [R.S.C.
1970, c. R-9] and Regulations, under sections 41,
42 and 43, and applicant should exhaust a remedy
before proceeding in the Federal Court.
I am of the opinion that a suspension with pay is
a purely discretionary decision which can be over
turned the next day.
He further submitted that as regards the deci
sion to deny the adjournment of the Board, other
remedies exist than proceedings in this Court; and
that the procedure is established under the Regu
lations [Royal Canadian Mounted Police Regula
tions, C.R.C., c. 1391], pursuant to subsection
21(2) of the Royal Canadian Mounted Police Act.
They have a right of appeal under section 43 of
that Act. I reject this argument: sections 41, 42
and 43 determine appeals, but a right of appeal
under section 41 and under the Regulations can
only be required after a member has been found
guilty of an offence; accordingly, the argument
made here by the Crown is not valid, as there has
not yet been any conviction, and he therefore
cannot appeal from the Commissioner's decision.
I also consider that the decision of the Commis
sioner is a purely administrative one falling within
the scope of section 18 of the Federal Court Act.
This Court is competent to decide whether a writ
of prohibition should issue.
I return to the heart of the matter, which is
essentially constitutional in nature. It involves a
challenge to the validity and scope of principles
such as the presumption of innocence in a criminal
proceeding in Canada, the non-compellability of
an accused, the right not to incriminate oneself
and the right to a fair trial. These principles have
long been enshrined in the criminal courts as a
result of the Canada Evidence Act [R.S.C. 1970,
c. E-10] and the principles of the common law.
Thus, an accused has the right not to testify at his
trial, and also has the right to benefit from protec
tion of the law when he testifies in other proceed
ings on matters which could incriminate him.
Furthermore, in the case at bar applicant is
currently facing a criminal proceeding, but is at
the same time being required to testify regarding
the same offence at a hearing before the RCMP
Discharge and Demotion Board. The mere fact of
being involved in perpetrating a breach of a statute
enacted by the Parliament of Canada is a cause of
incapacity to exercise his functions within the
RCMP, whether or not he has been charged with
the criminal offence constituting the cause of such
incapacity, and whether he has been tried, acquit
ted or convicted by the Court in respect of that
offence. In short, in such circumstances the appli
cant has the burden of showing that he is able to
perform his duties and must defend himself on this
charge. He must present his defence and thus does
not benefit either from the presumption of inno
cence or from the privilege against self-incrimina
tion, because he is not before a criminal court. He
is not required to defend himself, but if he does not
do so his file will be sent directly to the Commis
sioner, who will probably have no choice but to
discharge him.
This is precisely the evidence which would be
disclosed to those who have the burden of proving
in the Sessions of the Peace that he committed a
crime; and this is where the principles of a fair
trial may be called in question.
The Charter may establish the non-compellabili-
ty of a witness in a case where he is charged or in
the process of being charged much more clearly
under paragraph 11(c) than under sections 13
or 15.
Paragraph 11(c) reads as follows:
11. Any person charged with an offence has the right
(c) not to be compelled to be a witness in proceedings against
that person in respect of the offence;
This is what Tarnopolsky and Beaudoin say on the
point in The Canadian Charter of Rights and
Freedoms (Carswell, 1982), at pages 364-365:
The basic problem is that many of the protections provided by
the criminal process may be subverted by calling the suspect or
accused as a witness at some other proceeding prior to his
criminal trial.
It is true that such a witness may prevent his testimony being
introduced at any subsequent criminal trial. However, the
damage may be done in other ways. The earlier hearing might
be used as a "fishing expedition" to subject the witness to
extensive questioning with a view to uncovering possible crimi
nal conduct. The questioning might also be used to investigate a
particular offence. For example, the accused might be required
to reveal possible defences, the names of potential defence
witnesses and other evidence ....
The problem is that the initial hearing is likely to have none
of the protections guaranteed by the criminal process. There
will be no specific accusation, no presumption of innocence, no
protections against prejudicial publicity, no rules of evidence
and so on. It is submitted that there is a serious crisis of
integrity in a criminal process whose detailed protections may
so easily be ignored.
I would have been prepared to consider the point
if counsel had initiated the right action.
I have been asked to stay the proceedings of
another court. In view of section 50 of the Federal
Court Act, I have no right to do so. This is clearly
established by precedent. Thus Pratte J., in Minis
ter of Employment and Immigration Canada v.
Rodrigues, [1979] 2 F.C. 197; 98 D.L.R. (3d) 667
(C.A.), said at page 668 [F.C., page 199]:
Section 50 allows the Court to stay proceedings which are in
progress in the Court itself; it does not allow the Court to stay
proceedings in progress before some other tribunal.
In my opinion, this is a constitutional question,
and applicant should use the appropriate proce
dure. If, for example, I had been asked to find
certain statutory provisions invalid, and the parties
concerned had been given the necessary notices, I
would have been able to rule on the constitutional
ity of the point. It is much too important a point to
be raised inadvertently, arising out of a particular
case. It is a matter which should be considered
exhaustively in the general interests of Canadians.
A distinction must be made between the duties
of an administrative tribunal and constitutional
duties: an administrative tribunal must act fairly
or in accordance with the rules of natural justice,
as the case may be, which are statutory duties;
constitutional duties, which occupy a position
above all this, fix the boundaries of individual
rights. Thus, an administrative tribunal may act
fairly in terms of its enabling legislation and not
act in accordance with a constitutional right.
In the case at bar, the administrative tribunal is
acting within the limits of its statutory duties.
Whether or not the Discharge and Demotion
Board is constitutionally defective, this is not the
proper proceeding for discussing such a question.
The application is dismissed with costs.
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