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.
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.