T-1299-91
William Stuart Leach (Applicant)
v.
Royal Canadian Mounted Police Public Com
plaints Commission, Commissioner of the Royal
Canadian Mounted Police and Attorney General
of Canada (Respondents)
INDEXED AS: LEACH v. ROYAL CANADIAN MOUNTED POLICE
PUBLIC COMPLAINTS COMMISSION (T.D.)
Trial Division, MacKay J.—Vancouver, June 6;
Ottawa, June 24, 1991.
RCMP — RCMP Public Complaints Commission investi
gating complaints excessive force used during arrests
RCMP Act, ss. 45.43(1) and 45.42(3)(c) authorizing Chairman
to investigate "or" initiate hearing — "Or" used in conjunctive
sense — Chairman authorized to institute hearing after instat-
ing investigation — Commission and Chairman authorized
only to conduct hearing and make written recommendations —
Cannot grant relief determine liability or impose sanctions —
Hearing not violating principles of fairness — Anticipation of
adverse recommendations on which Commissioner could act
not basis to prohibit hearing or action by Commissioner on
recommendation — Lack of opportunity to be heard before
Chairman making final report or Commissioner's action not
unfair as hearing not tantamount to preliminary inquiry —
Parts VI and VII not inconsistent with Charter.
Construction of statutes — RCMP Act, ss. 45.43(1) and
45.42(3)(c) authorizing Chairman to investigate "or" initiate
hearing — Applying words-in-total-context approach, "or"
used in conjunctive or inclusive sense — Chairman authorized
to institute hearing after initiating investigation — Interpreta
tion supported by use of "or" in conjunctive sense in other
provisions in Part VII — Consistent with purposes of Act, i.e.
protection of public from private investigation of complaints
and prevention of pillorying of Force members.
Constitutional law — Charter of Rights — Life, liberty and
security — RCMP Public Complaints Commission Chairman
cannot grant relief determine liability or impose sanctions —
Authorized only to conduct hearing and make written recom
mendations — Only Commissioner able to act — Charter, s. 7
guarantee of right not to be deprived of life, liberty and
security of person except in accordance with principles of
fundamental justice, not violated by absence of reference to
principles of natural justice in RCMP Act, Parts VI and VII
— Provisions attempt to ensure compliance with natural jus
tice principles.
Constitutional law — Charter of Rights — Criminal process
— RCMP Public Complaints Commission Chairman initiating
hearing into complaints excessive force used during arrests —
Charter, s. 11 right of person charged with offence not to be
compelled to be witness in proceedings against him, not appli
cable to Commission's proceedings — Applicant not charged
with offence — No penal consequences resulting from hearing.
Constitutional law — Charter of Rights — Equality rights
— RCMP Public Complaints Commission Chairman initiating
hearing under RCMP Act, Part VII into complaints excessive
force used during arrests — Charter, s. 15 not applicable to
Part VII, which does not involve discrimination on enumerated
or analogous grounds.
This was an application by an RCMP officer to prohibit the
RCMP Public Complaints Commission from conducting a
hearing into complaints that excessive force had been used
during the arrest of the complainants, and to prohibit the
Commissioner from acting on any of the Commission Chair-
man's recommendations. An internal investigation determined
that only sufficient force to effect the arrests had been used,
and that the RCMP Code of Conduct had not been breached.
The Crown prosecutor decided not to lay criminal charges
against the applicant. Upon complainants' request for review,
the Public Complaints Commission was established. The Com
mission's processes are set out in Part VII of the RCMP Act.
The Commission and its Chairman cannot grant relief, deter
mine liability or impose sanctions against any member of the
Force. They have authority only to conduct a hearing and
report in writing. Only the Commissioner is authorized to take
action. Upon review of the complaint, the Chairman decided to
institute a hearing. The applicant submitted that the Chairman,
having completed an investigation under subsection 45.43(1)
was functus officio and had no jurisdiction to institute a
hearing. Under both subsection 45.43(1) and paragraph
45.42(3)(c), the Chairman may investigate "or" institute a
hearing. The applicant argued that "or" was used in its exclu
sive or disjunctive sense, so that the Chairman may undertake
one or other of the courses of action, but not both and that the
procedures established under Part VII were unfair in three
respects: (1) the Commission had unlimited authority to report
in writing, including recommending prosecution or disciplinary
action; (2) the Commissioner had unrestricted authority to take
action upon receipt of the report without giving a person who
may be adversely affected an opportunity to be heard; and (3)
there was a similar lack of opportunity before the Chairman
makes a final report. The issues were whether the Commission
Chairman had jurisdiction to institute a hearing; whether the
procedures under Part VII of the RCMP Act were fair; and
whether Parts VI and VII of the Act were consistent with
Charter sections 7, 11, 15 and 32 and Constitution Act, 1982,
section 52.
Held, the application should be dismissed.
The Chairman was not functus officio. He acted within his
statutory authority in instituting the hearing. Applying the
words-in-total-context approach to statutory construction, the
word "or" in both subsection 45.43(1) and paragraph
45.42(3)(c) is used in its inclusive or conjunctive sense and the
Chairman is authorized to institute a hearing after initiating an
investigation, whether or not that investigation has been con
cluded to his satisfaction except for the report to the Commis
sioner. This construction is supported by the use of "or" in its
inclusive or conjunctive sense in other provisions of Part VII
and by subsection 45.43(3), which requires the Chairman to
report his findings and recommendation to the Minister and
Commissioner on completion of an investigation, unless he has
instituted a hearing. Subsection 45.43(3) would seem to indi
cate that Parliament contemplated that the Chairman might
institute a hearing after investigating a complaint. Finally, this
interpretation is consistent with the purposes of the Act,
namely, the protection of the public from having complaints
investigated privately and, on the other hand, to prevent the
pillorying of members of the Force. If public confidence in the
Force and its processes is to be maintained, the Commission,
through its Chairman, must be free to determine when a
hearing is warranted. A decision to institute a hearing neces
sarily implies at least a preliminary investigation of a complaint
by the Commission Chairman.
The hearing did not violate principles of fairness. The appli
cant anticipated that the hearing body might make recommen
dations adverse to him, which could be acted upon and ulti
mately be the matter of comment in the Chairman's final
report. Any such outcome is mere speculation. An order of
prohibition cannot be issued against a purely speculative action.
The applicant also urged that the hearing was tantamount to a
preliminary enquiry into criminal conduct, with the attendant
public notoriety, without giving him an opportunity to deny or
respond to any adverse characterization of his actions. The
conduct complained of must be subject to examination and
report to achieve the purpose of the hearing and of the review
process, which was to find facts about the incident giving rise to
the complaint, to review the process of investigation conducted
by the Force and to consider the use of certain tactics by the
officers in the course of their duties. Criminal prosecution was
not an objective of the hearing and the time limit for discipli
nary action had expired.
Parts VI and VII are not inconsistent with Charter, section 7
which guarantees the right not to be deprived of life, liberty
and security of the person except in accordance with the
principles of fundamental justice. Section 7 is not violated by
the absence of reference to principles of natural justice or to the
duty of fairness in the statutory provisions, which attempt to
ensure that the hearing process accords with "principles of
fundamental justice".
Charter, section 11 (which guarantees the right of any
person charged with an offence not to be compelled to be a
witness in proceedings against him), is not applicable to the
Commission's hearing. The applicant was not charged with an
offence and the hearing cannot result in any penal
consequences.
Nor does the hearing violate equality rights guaranteed by
Charter, section 15. As Part VII does not involve discrimina
tion based on enumerated or analogous grounds, section 15
does not apply.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada
Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix
II, No. 44] ss. 7, 11, 13, 15, 32.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5].
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No.
44], s. 52.
Constitutional Question Act, R.S.B.C. 1979, c. 63, s. 52.
Criminal Code, R.S.C., 1985, c. C-46.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Royal Canadian Mounted Police Act, R.S.C., 1985, c.
R-10, ss. 45.35, 45.36, 45.38, 45.41, 45.42, 45.43,
45.44, 45.45, 45.46 (as enacted by R.S.C., 1985 (2nd
Supp.), c. 8, s. 16).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Starr v. Houlden, [1990] 1 S.C.R. 1366; (1990), 72 O.R.
(2d) 701 (note); 68 D.L.R. (4th) 641; 55 C.C.C. (3d)
472; 110 N.R. 81; 41 O.A.C. 161.
CONSIDERED:
O'Hara v. British Columbia, [1987] 2 S.C.R. 591;
(1987), 45 D.L.R. (4th) 527; [1988] 1 W.W.R. 216; 19
B.C.L.R. (2d) 273; 38 C.C.C. (3d) 233; 80 N.R. 127.
REFERRED TO:
Northwestern Utilities Ltd. et al. v. City of Edmonton,
[1979] 1 S.C.R. 684; (1978), 12 A.R. 449; 89 D.L.R.
(3d) 161; 7 Alta. L.R. (2d) 370; 23 N.R. 565; Rankin
(Re), [1991] 1 F.C. 226; (1990), 38 F.T.R. 23 (T.D.);
Ferguson Bus Lines Ltd. v. Amalgamated Transit Union,
Local /374, [1990] 2 F.C. 586; (1990), 68 D.L.R. (4th)
699; 43 Admin. L.R. 18; 108 N.R. 293 (C.A.); Pacific
Trollers Association v. Attorney General of Canada et
al., T-1921-86, McNair J., order dated 2/9/86, not
reported, F.C.T.D.; Estrada v. Canada (Minister of
Employment and Immigration) (1987), 8 F.T.R. 317; 1
Imm. L.R. (2d) 24 (F.C.T.D.); Lor-Wes Contracting
Ltd. v. The Queen, [1986] 1 F.C. 346; [1985] CTC 79;
(1985), 85 DTC 5310; 60 N.R. 321 (C.A.); Stubart
Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536;
[1984] CTC 294; (1984), 84 DTC 6305; 53 N.R. 241;
Royal Canadian Mounted Police Act (Can.) (Re), [1991]
1 F.C. 529; (1990), 34 F.T.R. 1; 123 N.R. 120 (C.A.);
Mahon v. Air New Zealand Ltd., [1984] A.C. 808
(P.C.); Duncan v. Canada (Minister of National
Defence), [1990] 3 F.C. 560; (1990), 55 C.C.C. (3d) 28;
32 F.T.R. 189 (T.D.); Re Nelles et al. and Grange et al.
(1984), 46 O.R. (2d) 210; 9 D.L.R. (4th) 79; 42 C.P.C.
109; 3 O.A.C. 40 (C.A.); Meade v. Canada, [1991] 3
F.C. 365 (T.D.); Andrews v. Law Society of British
Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th)
1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 36
C.R.R. 193; 91 N.R. 255; R. v. Turpin, [1989] 1 S.C.R.
1296; (1989), 48 C.C.C. (3d) 8; 69 C.R. (3d) 97; 96 N.R.
115.
AUTHORS CITED
Canada. House of Commons Debates, Vol. V, 1st Sess.,
33rd Parl., 34 Eliz. II, 1985.
Canada. Commission of Inquiry concerning certain
activities of the Royal Canadian Mounted Police. 2nd
Report. Freedom and Security under the Law, Ottawa:
Supply & Services Canada, 1981 (The MacDonald
Commission Report).
Canada. The Report of the Commission of Inquiry
Relating to Public Complaints, Internal Discipline and
Grievance Procedure within the Royal Canadian
Mounted Police, Ottawa: Information Canada, 1976
(The Marin Commission Report).
Driedger, Elmer A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
COUNSEL:
Gordon P. Macdonald for applicant.
D. J. Sorochan for respondent Royal Canadi-
an Mounted Police Public Complaints Com
mission.
P. F. Partridge for respondent Attorney Gen
eral of Canada.
Steven M. Kelliher for complainants Michael
and Steven Cooper.
SOLICITORS:
Macdonald & McNeely, Victoria, for appli
cant.
Swinton & Company, Vancouver, for
respondent Royal Canadian Mounted Police
Public Complaints Commisssion.
Deputy Attorney General of Canada for
respondent Attorney General of Canada.
Steven M. Kelliher, Victoria, for complai
nants Michael and Steven Cooper.
The following are the reasons for order ren
dered in English by
MACKAY J.: This is an application for prohibi
tion orders, pursuant to section 18 of the Federal
Court Act.' The first order sought would preclude
the conducting of a hearing by the respondent
Royal Canadian Mounted Police Public Com
plaints Commission ("the Commission") into two
complaints filed by a father and his son, Michael
Cooper and Steven Cooper, against the applicant
Leach and others, all of whom were RCMP offi
cers stationed in British Columbia. The second
order sought would preclude the respondent Com
missioner of the Royal Canadian Mounted Police
("the Commissioner") from acting on any recom
mendation which may be made by the Chairman
of the Commission pursuant to the two complaints
filed by the Coopers.
In addition to those two respondents named in
the notice of motion filed herein, counsel for the
applicant, having raised constitutional issues relat
ing to the Canadian Charter of Rights and
Freedoms, 2 acting in accord with the Constitu
tional Question Act 3 of British Columbia, gave
notice to the Attorneys General of the province
and of Canada that the constitutional validity of
portions of the Royal Canadian Mounted Police
Act 4 would be challenged.
Counsel for the Attorney General of Canada
appeared for the hearing of the application and
indicated that the Attorney General of Canada
sought standing in his own right in the proceed
ings. I ordered that he be added as a party
respondent and that the style of cause be amended
to reflect that status.
Counsel for the applicant had also given notice
of the application to counsel representing others
among RCMP officers implicated in the com
plaints of the Coopers, and to counsel for the
Coopers. The latter appeared briefly in the course
of the hearing, was permitted to intervene and on
behalf of the Coopers expressed their interest in
having the matter of a hearing by the Commission
' R.S.C., 1985, c. F-7, as amended.
2 Part I of the Constitution Act, 1982, Schedule B, Canada
Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44] .
3 R.S.B.C. 1979, c. 63.
4 R.S.C., 1985, c. R-10, as amended.
proceed, and without unnecessary delay since it
was now two years since the events giving rise to
their complaints.
Matters leading to this application may be sum
marized as follows. The applicant participated
with others in the arrest of Michael Cooper and
Steven Cooper at Langford, B.C. on May 27,
1989. Both were subsequently charged with
offences. Thereafter on June 25 Michael and
Steven Cooper complained to the RCMP at Col-
wood detachment that they had been assaulted and
excessive force had been used by the applicant and
others in effecting the arrests on May 27. Counsel
for the applicant at the hearing indicated that it
was acknowledged that the applicant had applied a
carotid restraint hold in arresting Michael Cooper,
though it was not conceded that that in itself
constituted excessive force.
The complaints led initially to two investiga
tions. The first was an internal RCMP investiga
tion conducted by Staff Sergeant McCombe of the
RCMP detachment at Colwood. The investigation
apparently consisted of obtaining statements from
the Coopers and written responses to questions
posed to each of the officers involved, who were
not interviewed in relation to the incident. As a
result of the investigation, Chief Superintendent
Clarke wrote to each of the complainants on Sep-
tember 13, 1989 advising that the investigation
revealed that only sufficient force was used to
effect their respective arrests, that the investiga
tion revealed no breaches of the RCMP Code of
Conduct, and that the allegation of assault had
been referred to regional Crown counsel with all
the investigational material for a decision as to
laying charges against the police officers.
By letters dated September 28, 1989, Chief
Superintendent Clarke advised each of the claim
ants that the results of the criminal investigation,
forwarded to regional Crown counsel, led the latter
to decide that criminal charges were not warrant
ed. The applicant, who was advised on July 11 that
he was the subject of a criminal investigation as a
result of the complaints, was advised at the same
times as the Coopers of the results of the internal
investigation and of the Crown prosecutor's deci
sion that criminal charges were not warranted.
Thereafter, by separate letters, date-stamped as
received in each case on November 15, 1989,
Michael Cooper and Steven Cooper wrote to the
respondent Commission, expressing dissatisfaction
with the RCMP disposition, and requesting review,
of their respective complaints.
The respondent Public Complaints Commission
was established pursuant to Part VI of the Royal
Canadian Mounted Police Act [hereinafter
RCMP Act] and its processes are set out in Part
VII of the same Act. 5 Those processes, following
receipt of a complaint from a member of the
public as in this case, may be summarized, except
for the quoted provisions authorizing the Chair
man to investigate or institute a hearing to inquire
into a complaint, as follows.
(1) The Chairman of the Commission furnishes
the respondent Commissioner with a copy of the
complaint and the latter returns to the Chairman
the record of the RCMP's investigation of the
complaint and the notice of its disposition previ
ously sent to the complainant. 6
(2) The Commission Chairman reviews the
complaint' and
i) if satisfied with the disposition of the com
plaint by the RCMP he so reports in writing to
the Minister (the Solicitor General of Canada),
the respondent Commissioner, the member
whose conduct is the- subject matter of the com
plaint, and the complainant; 8
ii) if he is not satisfied the Chairman may
initiate other action; thus
45.42. .. .
(3) Where, after reviewing a complaint, the Commission
Chairman is not satisfied with the disposition of the complaint
by the Force or considers that further inquiry is warranted, the
Commission Chairman may
(a) prepare and send to the Minister and the Commissioner a
report in writing setting out such findings and recommenda
tions with respect to the complaint as the Commission Chair
man sees fit;
(b) request the Commissioner to conduct a further investiga
tion into the complaint; or
(c) investigate the complaint further or institute a hearing to
inquire into the complaint.
5 R.S.C., 1985, c. R-10, as am. by S.C. 1986, c. 11, s. 15
(R.S.C., 1985, (2nd Supp.), c. 8, s. 16).
6 Supra, note 4, s. 45.41(2).
' Id., s. 45.42(1).
8 Id., s. 45.42(2).
(3) On completion of an investigation by the
Commission Chairman, he prepares a report in
writing, to be sent to the Minister and the respond
ent Commissioner, with his findings and recom
mendations with respect to the complaint, unless
the Chairman has instituted or plans to institute a
hearing to inquire into the complaint. 9
(4) In addition to situations where the Chair
man is not satisfied with disposition of a complaint
by the RCMP, he may deal with a complaint in
other circumstances. Thus,
45.43 (1) Where the Commission Chairman considers it
advisable in the public interest, the Commission Chairman may
investigate, or institute a hearing to inquire into, a complaint
concerning the conduct, in the performance of any duty or
function under this Act, of any member or other person
appointed or employed under the authority of this Act, whether
or not the complaint has been investigated, reported on or
otherwise dealt with by the Force under this Part.
(5) Where the Commission Chairman decides to
institute a hearing into a complaint, the Act pro
vides in considerable detail for the arrangements
to be made including notice to all the parties, the
designation of persons to conduct the hearing, the
sittings of the member or members constituting
the Commission for purposes of the hearing, the
rights of persons interested and the right of any
witness to be represented by counsel, and provi
sions for evidence to be considered and for it to be
precluded from being used or received in any
hearing into alleged breach of the RCMP Code of
Conduct other than a hearing for giving mislead
ing or false testimony. 10
(6) On completion of any hearing the Commis
sion is required to submit to the Minister and to
the respondent Commissioner a report in writing
setting out findings and recommendations concern
ing the complaint, as the Commission sees fit. "
(7) Upon receipt of a report from the Commis
sion or its Chairman, whether that be upon investi
gation without a hearing or after a public hearing,
the respondent Commissioner has an obligation to
review the complaint in light of the findings and
recommendations in the Commission's report, and
to notify the Minister and the Chairman of any
further action in relation to the complaint, and
9 Id., s. 45.43(3).
1 ° Id., ss. 45.44, 45.45.
" Id., s. 45.45(14).
where no action on findings of the report is to be
taken, the Commissioner is to provide notice,
including his reasons for not acting, to the Minis
ter and the Commission Chairman. 12
(8) After consideration of the notice provided by
the respondent Commissioner, the Commission
Chairman has the last word: he prepares and sends
to the Minister, the Commissioner and the parties
a final report in writing with such findings and
recommendations as he sees fit. 13
The Public Complaints Commission and its
Chairman are not authorized by the legislation to
grant relief to the complainant or anyone else, or
to make any determination relating to liability,
criminal, civil, or disciplinary, against any member
of the RCMP or to impose any sanctions, penal or
otherwise. Their authority is to review or investi
gate or conduct a hearing, and to report in writing
with findings and recommendations as they see fit.
The authority for any action arising from the
report of the Commission or its Chairman rests
with the respondent Commissioner.
In this case, following receipt of the two com
plaints from the Coopers, the Chairman of the
Commission followed the initial steps set out by
statute. After his initial review he advised the
respondent Commissioner in August that he con
sidered further investigation was warranted and he
had decided to investigate further as provided for
in paragraph 45.42(3)(c) of the Act. Thereafter,
the Director of Complaints for the Commission
interviewed the Coopers, and invited the RCMP
officers involved, including the applicant, to be
interviewed but the applicant and the others
declined.
The applicant learned of the hearing process for
investigation of the Coopers' complaints upon
receipt of notice from the Chairman of the
respondent Commission. By notice of decision to
institute a hearing and assignment of hearing
members, dated November 26, 1990, the Chair
man of the Commission, after referring to the
nature of the respective complaints of the Coopers
who were identified in each case as the complai
nant, and naming the RCMP members involved,
12 Id., s. 45.46(1),(2).
13 Id., s. 45.46(3).
designated certain persons "to conduct a hearing
into this complaint" pursuant to subsection
45.44(1) of the Act and gave notice as follows:
TAKE NOTICE that in respect of this complaint, I have decided
to institute a hearing pursuant to paragraph 45.42(3)(c) of the
Act to inquire into all matters touching upon this complaint
and to hear all evidence relevant thereto to ensure a full and
fair hearing in respect of this complaint and to report at the
conclusion of the hearing such findings of fact and recommen
dations as are warranted.
By notices of re-assignment of hearing members,
dated March 20, 1991, the Chairman of the Com
mission, gave notice that a designated person
would sit as chairperson of the members assigned
to conduct a hearing into the complaints, replacing
the chairperson originally designated. This notice
includes the following reference to the decision to
institute a hearing:
TAKE NOTICE that in respect of this complaint, I instituted a
hearing pursuant to subsection 45.43(1) of the Act by Notice of
Decision to Institute a Hearing and Assignment of Hearing
Members, dated November 26, 1990.
It is noted that the statutory authority referred
to by the Chairman in these notices differs. In the
notice of November 26, 1990 the hearing is said to
be initiated pursuant to paragraph 45.42(3)(c),
and in the notice of March 20, 1991 it is said to
have been instituted pursuant to subsection
45.43(1).
Counsel for the respondent Commission submits
as facts, in a statement of facts and law, in part, as
follows.
10. The Cooper complaints could not be resolved by the investi
gation and review process of the Commission because matters
of credibility between the versions of the events advanced by
the complainants and the Royal Canadian Mounted Police
officers could not be determined from the material available to
the Commission.
11. On November 26, 1990, Dr. Richard Gosse, Chairman of
the Royal Canadian Mounted Police Public Complaints Com
mission notified the Applicant, William Stuart Leach, that he
had decided to institute a hearing to inquire into the Cooper
complaints.
12. The hearing was instituted because the Chairman was
unable to conclude his investigation by any other means
because of outstanding issues of fact. In addition, the hearing
was to look into the appropriateness of the Royal Canadian
Mounted Police policy on the application of the carotid
restraint hold, a potentially lethal hold, in situations such as
arose in the Cooper complaints.
13. The investigation by the Commission has not been com
pleted and therefore no investigation report has been prepared,
pursuant to section 45.43 of the Royal Canadian Mounted
Police Act, RSC CR-10 [sic].
Counsel also reported at the hearing of this
application, as background, that the hearing in
question was one of two hearings, both ordered at
the same time, into different complaints, by the
Coopers and by another person, which involved
reported use of a carotid restraint hold by officers
of the same detachment in generally similar cir
cumstances involving the arrest of citizens. The
other hearing had already commenced and expert
evidence to be called for both hearings was intend
ed to be heard once for both together.
The positions of the parties
The applicant, as earlier noted seeks orders of
prohibition against the respondent Commission
prohibiting the conducting of a hearing into the
complaints of the Coopers and prohibiting the
respondent Commissioner from acting on any
recommendation made by the Chairman of the
respondent Commission arising from those com
plaints. The grounds of the motion for relief are
set out as follows:
1. Part VI and VII of the R.C.M.P. Act is inconsistent with the
Constitution Act 1982 and consequently is of no force and
effect. The applicant relies on Sections 7, 11, 15, 32 and 52 of
the Constitution Act.
2. The Chairman of the Royal Canadian Mounted Police
Public Complaints Commission, having completed an investiga
tion pursuant to Section 45.43(1) of the R.C.M.P. Act is
functus officio and has no jurisdiction to institute a hearing to
inquire into the complaints of Michael Cooper and Steven
Cooper.
When this matter was heard counsel for the appli
cant did not concentrate on arguments relating to
the first of these grounds, that is, the claim that
relevant portions of the RCMP Act were inconsist
ent with provisions of the Constitution Act, 1982
[Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, No. 44]] and were of
no force and effect, though that submission was
responded to in written submissions and in argu
ment by counsel for the Commission and by coun
sel for the Attorney General. Aside from grounds
notified, counsel for the applicant argued that the
process established under Part VII of the RCMP
Act constituted an unfair process which, in light of
recent decisions concerning public inquiries, ought
to be prohibited.
For the respondent Commission counsel submit
ted additional facts as noted, i.e., that the Chair-
man's investigation of the Coopers' complaints
could not be and was not completed because of
different versions of events giving rise to the com
plaints and thus the Chairman's decision to pro
ceed with a hearing at which the complainants and
the RCMP officers involved would be called as
witnesses. He also submitted that the inquiry
would be concerned with the use of the carotid
restraint hold, admittedly used in arrest of at least
one of the Coopers, a hold which is said to be
potentially lethal, though it is apparently included
in RCMP training and in policy manuals. While
ordinarily this Court frowns upon the direct
representation of statutory bodies in proceedings
concerning judicial review of their activities, ' 4 an
exception is acknowledged in relation to issues
concerning their jurisdiction, 15 issues which are at
the heart of this application. In any event, no
question was raised about the propriety of direct
representation in this matter by the respondent
Commission.
For the Attorney General of Canada, counsel
took a position generally supportive of that adopt
ed by the Commission. Surprisingly counsel dif
fered on two aspects. First it was argued that the
Chairman's authority under paragraph
45.42(3)(c) was somewhat different from that
argued by the Commission, as will be noted below.
Second, counsel submitted that the scope of any
hearing was limited to matters directly related to
the complaints arising from conduct of the RCMP
officers involved, and did not extend to including a
more wide ranging hearing, for example, concern
ing the use of the carotid restraint hold. Interest
ingly enough counsel for the applicant conceded
that if the hearing was concerned only with the use
14 Following up on Northwestern Utilities Ltd. et al. v. City
of Edmonton, [1979] 1 S.C.R. 684, at p. 709, per Estey J.;
Rankin (Re), [1991] 1 F.C. 226 (T.D.), at pp. 233-234, per
Denault J.
15 Ferguson Bus Lines Ltd. v. Amalgamated Transit Union,
Local 1374, [1990] 2 F.C. 586 (C.A.), per Mahoney J.A.
of the restraint hold in police enforcement activi
ties his client would have no objection to appearing
and being questioned as a witness. His concern was
with the apparent focus of the hearing on the
applicant's conduct at the time of the Coopers'
arrests. In my view the notice of motion, seeking
orders of prohibition, neither gave notice of con
cern about, nor required for its disposition, a deci
sion about the appropriate scope, or terms of refer
ence, of the hearing instituted by the Commission,
aside from concern about inquiring as to the con
duct of the applicant. If there were terms of
reference they were not before this Court, other
than those apparent from the notice of the Chair
man of the Commission, dated November 26,
1990, "to inquire into all matters touching upon
this complaint and to hear all evidence relevant
thereto to ensure a full and fair hearing in respect
of this complaint and to report at the conclusion of
the hearing such findings of fact and recommenda
tions as are warranted". I do not propose to discuss
further "the scope of the hearing" in the sense
raised by counsel for the Attorney General.
Counsel for the Attorney General also raised as
a preliminary issue that the application for relief,
sought by originating motion, should be dismissed
because in the circumstances the nature of relief
sought was a declaration concerning the constitu
tional validity of portions of the RCMP Act.
Precedents were referred to 16 but I decline to
adopt this approach in light of the applicant's
insistence that a declaration was not the relief
sought. In my view, this Court's task is to rule
upon the motion before it in relation to the relief
here requested.
The issues
Essentially this application raises three issues,
concerning:
1. The authority of the Commission Chairman
to institute a hearing;
2. The fairness of procedures under Part VII of
the RCMP Act; and
16 See: Pacific Trollers Association v. Attorney General of
Canada et al. (not reported, Court No. T-1921-86, McNair J.,
order dated September 2, 1986 (F.C.T.D.)); Estrada v. Canada
(Minister of Employment and Immigration) (1987), 8 F.T.R.
317 (F.C.T.D.).
3. The consistency of Parts VI and VII of the
RCMP Act with sections 7, 11, 15, 32 of the
Charter and section 52 of the Constitution Act,
1982.
The balance of these reasons deals with each of
these issues in turn.
The authority of the Commission Chairman to
institute a hearing
The applicant submits in the notice of motion
that the Chairman of the Commission "having
completed an investigation pursuant to Section
45.43(1) of the R.C.M.P. Act is functus officio
and has no jurisdiction to institute a hearing". I
assume the statutory reference may have been in
error and that the motion may have intended to
refer to paragraph 45.42(3)(c), referred to as the
authority for the decision in the Chairman's notice
of decision to institute a hearing of November 26,
1990. However, both statutory provisions may here
be invoked by the Chairman if the later Notice of
March 20, 1991 is taken at face value, and both
have essentially the same grammatical structure in
providing for the Chairman's authority. Thus, sub
section 45.43(1) provides, as we have seen,
45.43(1) Where the Commission Chairman considers it
advisable in the public interest, the Commission Chairman may
investigate, or institute a hearing to inquire into, a complaint
.... [Underlining emphasis added.]
Paragraph 45.42(3)(c) provides:
45.42... .
(3) Where, after reviewing a complaint, the Commission
Chairman is not satisfied with [its] disposition ... by the Force
or considers that further inquiry is warranted, the Commission
Chairman may
(c) investigate the complaint further or institute a hearing to
inquire into the complaint. [Underlining emphasis added.]
The submission, applicable to either provision, is
that the word "or" is used in its exclusive or
disjunctive sense, so that the Chairman may
undertake one or other of the courses of action, but
not both, referred to in the section. Counsel for the
Attorney General of Canada submitted that these
provisions contemplate the institution of a hearing
after an investigation by the Chairman was com
pleted. For the Commission it was submitted that
the word "or" was here used in its inclusive or
conjunctive sense, sometimes treated as synony
mous with "and", so that the Chairman was not
limited to either one of the two courses of action
but might undertake both. In this case it was
submitted that the investigation having been ini
tiated, it was not possible to complete it because of
conflicting statements of events and thus the deci
sion to further the process, and to facilitate the
reporting on the complaints, by instituting a
hearing.
It is my conclusion that the word "or" in both of
these provisions is used in its inclusive or conjunc
tive sense and that the Commission Chairman is
authorized to institute a hearing after initiating an
investigation, whether or not that investigation has
been concluded to his satisfaction except for the
report to the Commissioner. The Court of
Appeal' 7 and the Supreme Court of Canada' 8
have indicated the proper approach to statutory
construction, summed up by E. A. Driedger, in
Construction of Statutes:
Today there is only one principle or approach, namely, the
words of an Act are to be read in their entire context and in
their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of
Parliament. 19
When one examines other provisions of Part VII
of the Act there are some where the word "or"
also appears to be used in its inclusive or conjunc
tive sense. 20 Moreover, subsection 45.43(3) of the
Act seems clearly to indicate that a decision to
investigate a complaint does not preclude a deci
sion by the Chairman to institute a hearing;
indeed, the words support the construction that
Parliament contemplated that the Chairman might
institute a hearing after investigating a complaint.
That section provides:
17 Lor-Wes Contracting Ltd. v. The Queen, [1986] 1 F.C.
346 (C.A.), at p. 352, per MacGuigan J.A.
18 Stubart Investments Ltd. v. The Queen, [1984] I S.C.R.
536, at p. 578, per Estey J.
19 2nd ed. 1983, p. 87.
20 See the use of "or": at the end of paragraph 45.35(1)(b);
in the phrase "any criminal, civil or administrative proceed
ings" in subsection 45.36(2); in section 45.38; in the opening
words of subsection 45.42(3) and at the end of paragraph
45.42(3)(b).
45.43... .
(3) On completion of an investigation under paragraph
45.42(3)(c) or subsection (1), the Commission Chairman shall
prepare and send to the Minister and the Commissioner a
report in writing setting out such findings and recommenda
tions with respect to the complaint as the Commission Chair
man sees fit unless the Commission Chairman has instituted, or
intends to institute, a hearing to inquire into the complaint
under that paragraph or subsection.
Finally, this interpretation is consistent with the
object of the Act and the intention of Parliament
as expressed in the Act. Counsel for the Commis
sion referred to Commission Reports 2' which led
to the legislation in question and to the comments
of the then Solicitor General in introducing the
legislation in Parliament 22 as suitable background
for understanding the purpose or object of the
provisions of Parts VI and VII of the Act. Some of
that background has been referred to in the Court
of Appeal by Mr. Justice MacGuigan who
summed up the purposes of the legislation, at least
so far as it provides for review of complaints from
the public, as follows:
One purpose of the legislation, then, deduced from the
mischief at which it was directed, is the protection of the public
from having its complaints investigated privately. But it is
evident from other clarifying words of the Solicitor General
that there is another mischief to be guarded against as well,
viz., the pillorying of members of the Force (Debates, Septem-
ber 11, 1985, at 6519):
The recommendations of the Marin Commission are substan
tially implemented in this Act and considerable time and
effort has been invested in developing revisions that will
support and further the work of the RCMP and adequately
preserve the delicate balance between the protection of the
rights of the public and the individual members of the
RCMP.
This comment would indicate that both mischiefs are being
equally guarded against. 23
Those purposes of the legislation, in my view,
are best served by the interpretation of "or" in
either paragraph 45.42(3)(c) or subsection
45.43(3) in its inclusive or conjunctive sense, and
21 Freedom and Security under the Law, Report of the
MacDonald Commission (1981), at pp. 101 ff.; The Report of
the Commission of Inquiry Relating to Public Complaints,
Internal Discipline and Grievance Procedure within the Royal
Canadian Mounted Police, (The Marin Commission Report,
1976).
22 House of Commons Debates (Wed. Sept. 11, 1985) Vol. V,
1st Sess., 33rd Parl., at pp. 6518-6519.
23 Royal Canadian Mounted Police Act (Can.) (Re), [1991] 1
F.C. 529 (C.A.) at p. 556.
as indicated, authorizing the Commission Chair
man to decide to institute a hearing, in addition to
initiating any investigation of a complaint. If the
Commission is to serve to maintain confidence of
the public generally in the Force and its processes,
the Commission through its Chairman must be
free to determine when a hearing is warranted. He
can hardly make such a determination without at
least a preliminary investigation of the matter, for
example considering the nature and circumstances
of the complaint, who the complainant is and
whether the complainant claims to be the victim of
alleged misconduct, the thoroughness of any ear
lier investigation by the Force, whether the dispo
sition of the complaint by the Force has been
satisfactory to the complainant, technical assess
ment of the evidence likely to be adduced at any
hearing, and so on. In my view, a decision to
institute a hearing, which will serve both purposes
identified by MacGuigan J.A., necessarily implies
at least a preliminary investigation of a complaint,
by the Commission Chairman.
In light of this construction of the statutory
provisions pursuant to which the hearing here was
instituted, whether that be taken as paragraph
45.42(3)(c) or subsection 45.43(1), Parliament is
seen to have authorized a hearing in addition to
any investigation by the Commission Chairman.
Thus I do not accept the applicant's submission
that the Chairman was functus officio before
instituting the hearing.
The fairness of procedures under Part VII of the
RCMP Act
For the applicant it was submitted that the
orders sought should be granted because of serious
issues of lack of fairness in the procedures estab
lished by Part VII of the RCMP Act. There were
two aspects of this submission dealt with in argu
ment, the first relating to the statutory provisions
themselves, the second relating to the nature of the
hearing here instituted by the Commission
Chairman.
The procedures established by Part VII were
said by counsel for the applicant to create serious
issues of lack of fairness in three respects. The first
is in the unlimited authority of the hearing body,
the Commission, to report in writing "setting out
such findings and recommendations with respect to
the complaint as the Commission sees fit" 24 so that
it is possible for the Commission to recommend
prosecution or disciplinary action. The second is
the authority of the respondent Commissioner
upon receipt of the report to take action, the scope
of which is not restricted, without providing oppor
tunity for a person who may be adversely affected
to be heard. 25 The third is a similar lack of oppor
tunity before the Commission Chairperson makes
a final report after considering a report from the
Commissioner of any action he has or will take, or
his refusal to act, in relation to the report from the
hearing. 26
In my view these concerns of the applicant do
not warrant the relief sought at this stage. They
anticipate that the hearing body may make recom
mendations adverse to the applicant, that those
may be acted upon and may ultimately be the
matter of comment in the Commission Chairman's
final report on the complaint. Any such outcome
at this stage is mere speculation. The hearing
body, to serve the purposes of the legislation, will
be concerned with protecting the interests of the
Coopers as complainants, and of the applicant and
other officers involved. It will be concerned to
assess the RCMP's internal processes for dealing
with the complaints.
There may well be need for the hearing body,
the Commission, the Commission Chairman, or
the Commissioner to have concern for procedural
fairness, particularly in relation to persons whose
interests may be adversely affected by their reports
or their actions. 27 So far as the hearing process
itself is concerned the Act does include specific
provisions intended to ensure this. Yet there will
be other circumstances, including some identified
by the applicant's concerns, where issues of proce-
24 Supra, note 4, s. 45.45(14).
25 Supra, note 4, s. 45.46(1) and (2).
26 Supra, note 4, s. 45.46(3).
27 See Mahon v. Air New Zealand Ltd., [ 1984] A.C. 808
(P.C.), per Lord Diplock, at pp. 820-821; Duncan v. Canada
(Minister of National Defence), [1990] 3 F.C. 560 (T.D.).
dural fairness are not spelled out in the statute.
That in itself is no basis for stopping the process
by an order of prohibition in anticipation that
those responsible will ignore their responsibilities.
They have the advice of able counsel who can be
expected to be concerned that there be no plausible
claim that their reports or decisions are tainted,
and should be set aside, for failure to observe the
duty of fairness or ignoring principles of natural
justice that may be applicable.
There is no basis for an order of prohibition
against an action the occurrence of which, at this
stage, is purely speculative and may not involve
any real question of improper exercise of
discretion.
The second aspect of unfairness is said to arise
from the nature of the hearing itself as identified
in the notices of the Chairman dated November
26, 1990, which speak of the nature of the Coop
ers' complaints alleging assault and the use of
excessive force in effecting their arrests. The alle
gations are said to be related to the commission of
criminal offences, both provided for in the Crimi
nal Code [R.S.C., 1985, c. C-46], and the notice of
the Chairman is that "I have decided to institute a
hearing . .. upon this complaint and to hear all
evidence relevant thereto to ensure a full and fair
hearing in respect of this complaint and to report
at the conclusion of the hearing such findings of
fact and recommendations as are warranted". It is
said that the notice from the Chairman indicates
the Commission will inquire into whether the
applicant, or other officers involved, committed
acts which constitute criminal offences. On the
basis of recent decisions, in particular the Supreme
Court decision in Starr, 28 it is urged that the
hearing here be precluded because, in effect, it is
tantamount to a preliminary enquiry into conduct
prohibited under the criminal law. Counsel also
argues that the decision in Nelles 29 supports the
grant of an order of prohibition. Whether or not
the hearing results in a finding of criminal conduct
by the applicant, he will not escape public notorie
ty arising from any adverse characterization of his
28 Starr v. Houlden, [1990] 1 S.C.R. 1366.
29 Re Nelles et al. and Grange et al. (1984), 46 O.R. (2d)
210 (C.A.), at p. 220.
actions and he will have no opportunity to be
heard to deny or respond to any such characteriza
tion.
The last of these submissions may represent a
serious concern to the applicant but it provides no
basis for an order of prohibition at this stage. The
purpose of the hearing and of the review process
noted below established by the legislation cannot
be served if the conduct complained of cannot be
examined in the light of day and reported. In the
assessment and comment upon the conduct com
plained of at stages beyond the hearing, where the
applicant and others have the right and opportu
nity to be heard and to be represented by counsel,
principles of natural justice and the duty of fair
ness may, as earlier indicated, influence the
manner in which persons who may be adversely
affected are involved. But those are considerations
for other fora and for another day; they do not
support the grant of orders of prohibition now.
In my view the Supreme Court of Canada's
decision in Starr 30 has no application in this situa
tion. There the Court was dealing with a provincial
inquiry which it held to be ultra vires the province
as dealing in pith and substance with criminal law
and procedure, a matter which by the Constitution
Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5]] lies within the exclusive
competence of Parliament. There, a concurrent
criminal investigation was under way into conduct
of persons named for investigation by the provin
cial inquiry before which they were compellable
witnesses, and where the inquiry's terms of refer
ence were drawn, in part at least, in terms synony
mous with Criminal Code offences. In that case,
the inquiry was characterized by Mr. Justice
Lamer (as he then was), speaking for the majority
of the Court, as "a substitute investigation and
preliminary inquiry of named individuals for a
specific criminal offence". 31 In this case, the hear
ing is constituted under federal legislation. There
is no concurrent criminal investigation under way
3° Supra, note 28.
31 1d., at pp. 1408, 1410.
and none now contemplated; indeed, such an inves
tigation was concluded and the applicant and com
plainants were informed before the hearing in this
case was instituted that there would be no criminal
prosecution. While that would not preclude recon
sideration at some future time, that is not an
objective of the hearing in this case. Moreover, it is
said there is no prospect of any disciplinary action
against officers of the Force because subsection
43(8) precludes a hearing required for such action
after the expiration of one year from the time of
an alleged contravention of the Code of Conduct
and the identity of the member involved becomes
known, a time which in this case has expired.
The purpose of the hearing in this case, regard
less of the terms of the notice of hearing, which
must be read in light of the statutory purposes of
such an inquiry, is not to lead to prosecution under
the Criminal Code or to disciplinary action.
Rather, it is to find facts about the incident giving
rise to the complaint, to review the process of
investigation conducted by the Force, and appar
ently to consider the use of certain tactics by the
officers involved in the course of their duties. It
cannot be characterized, in my view, as a substi
tute for a preliminary inquiry into alleged criminal
activity. The circumstances of this case are not
unlike those in O'Hara, 32 though it dealt with a
provincial inquiry, where the inquiry was con
cerned with a specific incident but was not intend
ed to serve to affix criminal responsibility to a
particular individual but was more generally con
cerned with alleged police misconduct. In O'Hara
the Supreme Court of Canada upheld the provin
cial inquiry.
For these reasons, I conclude that the hearing
instituted in this case does not violate principles of
fairness. Concerns of the applicant about those
principles may arise in the ensuing steps under
Part VII of the Act, but those can be dealt with as
they arise, or may be subject to judicial review if
not adequately applied.
32 O'Hara v. British Columbia, [1987] 2 S.C.R. 591.
Parts VI and VII of the RCMP Act and the
Constitution Act, 1982
The final ground argued as a basis for relief
relies upon the Constitution Act, 1982. One sec
tion of the Act referred to, section 52, is declarato-
ry and provides for the primacy of the Constitution
of Canada including the Constitution Act, 1982
and that any law inconsistent with the Constitu
tion is of no force and effect. Section 32, also
relied upon is declaratory in applying Part I of the
Constitution Act, 1982, that is the Canadian
Charter of Rights and Freedoms, to the Parlia
ment and Government of Canada in respect of all
matters within the authority of Parliament, as well
as to the legislature and government of each prov
ince. The other sections referred to by the appli
cant, sections 7, 11 and 15, are substantive provi
sions of the Charter.
As earlier noted at the hearing of this matter
counsel for the applicant did not elaborate on the
basic submission that Parts VI and VII of the
RCMP Act are inconsistent with those provisions
of the Charter, except to the extent that argument
concerning the fairness of the process under Part
VII of the Act implicitly involves concerns that
may arise in relation to section 7 of the Charter.
The applicant's submissions concerning the Chart
er, in my view, were effectively dealt with in
written and oral submissions by counsel for the
Attorney General and for the respondent Commis
sion. I do not propose to deal with this issue at
length; rather, I express my conclusions with refer
ence to the authorities which are applicable.
The provisions of Part VI and Part VII of the
RCMP Act are not, in my view, inconsistent with
section 7 of the Charter, which assures that:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
A hearing constituted pursuant to paragraph
45.42(3)(c) or subsection 45.43(1) of the Act
requires notice in writing of the time and place of
hearing to be served on the parties including a
complainant and the member of the force about
whose conduct the complaint is made, that the
parties and any other person with a substantial and
direct interest in a complaint be afforded a full
and ample opportunity, in person or by counsel, to
present evidence, cross-examine witnesses and to
make representations at the hearing, and that any
witness be permitted to be represented by counsel.
There are restrictions upon evidence that the Com
mission may receive at a hearing, for example,
precluding statements made in dealing with other
complaints, or in attempts to settle the complaint,
designed to protect the interests of witnesses,
though no witness is excused from answering ques
tions on the ground the answer may tend to crimi-
nate the witness or subject the witness to any
proceeding or penalty but a witness who is a
member of the Force is protected against the use
of answer or statement made at a hearing in any
hearing concerning disciplinary action. 33
These provisions go considerable distance to
ensuring the hearing process accords with "princi-
ples of fundamental justice". In so far as the
statutory provisions do not include reference to
principles of natural justice or to the duty of
fairness in the processes of the hearing, in the
subsequent report by the hearing body to the
Commissioner, the action that may be taken by the
Commissioner, or in the final reporting by the
Commission Chairman, Part VII of the Act cannot
be said to violate section 7 of the Charter. Con
siderations arising from jurisprudence concerning
section 7 may well have to be considered in the
processes subsequent to the hearing but anticipat
ing that this will not be done in a manner con
sistent with the Charter, or principles of fairness
applicable, is not a function of this Court and
provides no basis for a finding of a violation of this
section of the Charter.
The applicant's reliance upon section 11 of the
Charter, which sets out procedural safeguards in
criminal and penal matters, is not elaborated upon.
In the applicant's statement of fact and law refer
ence is made to notice received by summons to
appear at the hearing where he will be required to
testify about the incident giving rise to the com
a ' RCMP Act, supra, note 4, s. 45.45(2),(5),(6),(8),(9),
(12),(15).
plaint. Implicitly that would seem to point to
paragraph 11(c) of the Charter which provides:
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;
The simple answer to the applicant's concern is
that section 11 of the Charter is not applicable to
the proceedings of the Public Complaints Commis
sion in its hearing. The applicant is not charged
with an offence and the hearing cannot result in
any penal consequences. Any such consequences
could only arise at a later stage, by action or
decision of the respondent Commissioner. Even at
that stage the applicant shares, with all other
witnesses at the hearing, the right guaranteed by
section 13 of the Charter "not to have any
incriminating evidence [given in the course of the
hearing] used to incriminate [him] in any other
proceedings, except in a prosecution for perjury or
for the giving of contradictory evidence". 34
Finally, I conclude that the hearing instituted
pursuant to the Act, and the provisions of Part VII
of the Act generally, do not violate any right of the
applicant guaranteed by section 15 of the Charter.
The application of that section, providing for
equality before and under the law and equal pro
tection and benefit of the law, has been clarified
by the Supreme Court of Canada, particularly in
Andrews 35 and in Turpin. 36 In light of those deci
sions it is clear that section 15 has no application
in this case to the provisions of Part VII of the
Act, which do not involve discrimination, and in
particular discrimination based on the enumerated
grounds or those analogous to them.
Conclusions
For the reasons set out my conclusions are as
follows. The Commission Chairman acted within
statutory authority in instituting the hearing con
cerning matters arising in relation to the com
plaints of Michael Cooper and Steven Cooper. The
procedures established under Part VII of the
34 See generally Meade v. Canada, [1991] 3 F.C. 365 (T.D.)
per Pinard J.
35 Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143.
36 R. v. Turpin, [1989] 1 S.C.R. 1296.
RCMP Act do not violate principles of fairness
and the hearing is not a substitute for a prelim
inary inquiry into alleged criminal activity; so far
as the duty of fairness or principles of natural
justice may require consideration in the exercise of
statutory discretion and responsibilities there is at
this stage an expectation that appropriate con
sideration will be given by those concerned; Parts
VI and VII of the RCMP Act as generally
referred to do not violate any right assured to the
applicant by sections 7, 11 and 15 of the Canadian
Charter of Rights and Freedoms, nor are those
Parts inconsistent with the Charter as specified, so
that they are of full force and effect.
The application for orders in the nature of
prohibition is dismissed. While costs were not
sought or addressed at the hearing of this matter,
they will as in the usual course, follow the event
and are awarded to the respondents.
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.