T-5968-80
T-5875-80
In re the Royal Canadian Mounted Police Act and
Regulations thereunder
and
In re proceedings against special constable Rita
Husted and Corporal E. A. Ridley for a major
service offence under the Royal Canadian Mount
ed Police Act
and
In re an application by special constable Rita
Husted and Corporal E. A. Ridley for a writ of
prohibition prohibiting the proceedings from con
tinuing without allowing them the right to legal
counsel
Trial Division, Addy J.—Vancouver, February 2
and 5, 1981.
Prerogative writs — Applications for writs of prohibition —
Applicants, members of the R.C.M.P., charged with having
committed a major service offence contrary to s. 25 of the
Royal Canadian Mounted Police Act — Request to be repre
sented by independent counsel at their trials before a service
tribunal of the R.C.M.P. was denied — Applicants seeking to
prohibit the trying officer from proceeding with trials until
they are so allowed to be, represented — Crown arguing that
the service tribunal is an administrative tribunal, that s. 33 of
the R.C.M.P. Regulations prohibiting representation by
independent counsel is valid and that such a prohibition may
be implied from s. 34(3) of the Act — Whether s. 33 of the
Regulations is valid — Royal Canadian Mounted Police Act,
R.S.C. 1970, c. R-9, ss. 21, 25, 29, 30, 32, 34, 36 — Royal
Canadian Mounted Police Regulations, C.R.C. 1978, Vol. XV,
c. 1391, s. 33.
The applicants, both members of the Royal Canadian
Mounted Police, have each been charged with having commit
ted a major service offence contrary to section 25 of the Royal
Canadian Mounted Police Act. Their request to be represented
by independent counsel at their trials before a service tribunal
of the R.C.M.P. having been denied, they now seek writs to
prohibit the trying officer from proceeding with their trials
unless and until they are so allowed to be represented. The
Crown argues that the service tribunal is a purely administra
tive one, that in such a case a regulation, such as section 33 of
the R.C.M.P. Regulations, could be validly enacted to prevent
the engagement of independent counsel pursuant to section
21(1) of the Act and that, in any event, prohibition is to be
implied from•section 34(3) of the Act. The issue arises over the
validity of section 33 of the Regulations.
Held, the applications are allowed. Section 33 of the Regula
tions is ultra vires and of no effect at least in so far as a trial
for a major service offence under section 25 of the Act is
concerned. First, section 34(3) is not in any way prohibitory
against the accused hiring his own counsel: it merely obliges the
force to provide representation if requested. Second, a tribunal
cannot be held to be essentially administrative in nature when,
to arrive at its findings, it is obliged to abide by the rules of
evidence in criminal trials, to have the evidence transcribed and
to conduct a trial in such a formal manner as provided for in
section 34 of the Act. Third, in the case of a person convicted
under the Act, the only appeal as of right is on the record.
Therefore, if the accused, by reason of his lack of legal training,
has failed to get evidence on the record which he should have,
an appeal would not remedy the situation. Finally, in consider
ing these matters, together with the severity of the penalties
provided for in section 36, it cannot be conceived that Parlia
ment intended to absolutely deny to all accused the benefit of
counsel of their choice when it authorized the Governor in
Council to issue regulations for the "discipline, efficiency,
administration and good government of the force".
APPLICATIONS.
COUNSEL:
J. J. Threlfall for applicants Rita Husted and
E. A. Ridley.
G. Carruthers for respondents the Queen and
the Attorney General of Canada.
SOLICITORS:
Harris, Campbell, Threlfall, Burnaby, for
applicants Rita Husted and E. A. Ridley.
Deputy Attorney General of Canada for
respondents the Queen and the Attorney Gen
eral of Canada.
The following are the reasons for order ren
dered in English by
ADDY J.: The present applications for writs of
prohibition were at the request of all parties, heard
together, as they are based on the same facts and
both applicants were represented throughout by
the same counsel. They are both members of the
Royal Canadian Mounted Police and were refused
a request to be represented by independent counsel
at their trials before a service tribunal of the Force
and are requesting that the trying officer be pro
hibited from proceeding with their trials unless
and until they are so allowed to be represented.
The applicant, Husted, a special constable, is
charged under paragraph (a) of section 25 of the
Royal Canadian Mounted Police Act, R.S.C.
1970, c. R-9, of the major service offence of
refusing to obey a lawful command to hand over a
firearm. The applicant, Ridley, who holds the rank
of corporal, stands charged at the same time of
another major service offence under section 25(o)
of disgraceful conduct in pointing a revolver at or
toward a constable.
Both offences were allegedly committed on the
same day, namely 5 January 1980, that is some
eleven months before formal charges were laid on
7 November 1980.
Counsel during argument referred at some
length to and argued on the applicability or other
wise of a line of cases which are attached hereto as
Appendix "A". I have considered them but will
refrain from commenting on same in these reasons
as, in my view, the issue turns on one or two
well-recognized common law principles and on the
specific wording of certain sections of the Act and
of the Regulations.
The offences under which the applicants are
respectively charged are described in the Act 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, disgraceful,
profane or immoral manner; ...
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 facts are uncontradicted. When the accused
appeared for their trials before Superintendent J.
M. Roy they had both retained and instructed the
same counsel who was not a member of the Force
but who was present outside of the room where the
trial was scheduled to be held. They both request
ed that they be tried together and that he be
allowed to represent them. Neither of the appli-
cants had any formal legal training. Their request
was denied by the service court and an adjourn
ment was granted the accused on the grounds that
they were not prepared to proceed at that time.
Before the date of resumption of the proceedings
the present applications were launched.
The controversy arises over the application or,
more precisely, over the validity of section 33 of
the Royal Canadian Mounted Police Regulations,
C.R.C. 1978, Vol. XV, c. 1391 issued pursuant to
section 21 of the Act. Section 33 of the Regula
tions reads as follows:
33. No member whose conduct is being investigated under
section 31 of the Act or who is charged with any offence
described in section 25 or 26 of the Act is entitled to have
professional counsel appear on his behalf at that investigation
or trial.
Section 21(1) of the Act reads as follows:
21. (1) The Governor in Council may make regulations for
the organization, training, discipline, efficiency, administration
and good government of the force and generally for carrying
the purposes and provisions of this Act into effect.
Section 21(2) of the Act authorizes the Commis
sioner to issue standing orders for essentially the
same purposes as section 21(1). The standing
orders, however, are not in issue before me.
The Act distinguishes between major and minor
service offences. The major service offences are all
specifically provided for and are enumerated in
section 25. Section 26 provides that failure to obey
any regulation or standing order of the Commis
sioner will constitute a minor service offence. The
punishment for all service offences is contained in
section 36 of the Act. Section 36(1), with which
we are concerned, reads as follows:
36. (1) Any one or more of the following punishments may
be imposed in respect of a major service offence:
(a) imprisonment for a term not exceeding one year;
(b) a fine not exceeding five hundred dollars;
(c) loss of pay for a period not exceeding thirty days;
(d) reduction in rank;
(e) loss of seniority; or
(/) reprimand.
Section 36(2) lays down the punishment for
minor service offences. In such cases there is no
penalty of imprisonment but any one or more of
the following punishments may be imposed, i.e.
confinement to barracks for a period not exceeding
30 days, a fine not exceeding $50 unless dismissal
is recommended when the fine may be $300, loss
of seniority and reprimand are provided for.
There is no absolute common law right to coun
sel in all cases where an individual is subject to
some penalty. The courts have consistently refused
to intervene on the grounds that representation by
counsel was denied in certain service disciplinary
matters where the hearing is, by nature of the
subject-matter or the alleged offence, of an inter
nal administrative nature and concerns a discipli
nary matter within a special body such as a branch
of the armed services or a police organization. The
powers of the trying officer in such cases are
generally quite limited and subject to administra
tive review by higher authority. In those cases the
alleged disciplinary offence is usually investigated
in a very informal manner without a court stenog
rapher recording the proceedings and without
regard to the strict rules of evidence and, as one
judge has put it "on a man to man basis" between
the superior officer and the alleged offender. In
most of these cases it has generally been long
established by custom that such disciplinary mat
ters would be settled within the force or organiza
tion, informally and without outside intervention.
In other cases,. legislation specifically prohibits the
employment of outside agents or counsel. The
exigencies of the service require this degree of
informality without which the day-to-day adminis
tration of the Force and the maintenance of disci
pline within it would become so cumbersome and
time-consuming as to be ineffective. On the other
hand, the common law recognizes that wherever a
person's liberty, or livelihood is at stake in a legal
trial, he should not unreasonably be deprived of
the services of the duly qualified legal counsel of
his choice unless the employment of any particular
counsel would unduly delay or impede the
administration of justice. It is a natural corollary
of the principle that an accused is entitled to a full
and fair defence.
Both counsel before me were of the view that
the provisions of the Canadian Bill of Rights are
of no assistance in the case at bar and counsel for
the applicants readily conceded at the outset of
argument that if the prohibition against the use of
outside counsel were contained in the Act itself,
the present applications should not be granted.
Counsel for the Crown's argument was based on
two main contentions: first, that the service tri
bunal was a purely administrative one dealing with
internal disciplinary matters, that in such a case a
regulation could be validly enacted to prevent the
engagement of independent outside counsel and
that the authority for issuing such a regulation
resided in the power to regulate for the "discipline,
efficiency, administration and good government of
the force" contained in section 21(1) of the Act.
Secondly, he argued that, in any event, the prohi
bition was to be implied from the wording of
section 34(3) of the Act which reads as follows:
34....
(3) An accused may be represented and assisted at his trial
by another member and if the accused requests that he be so
represented and assisted, his request shall be granted.
Dealing with the last argument first, I cannot
put such a construction on subsection (3). It
merely obliges the Force to make available any
representative of the Force which the accused
might request to represent him. It is mandatory on
the Force to provide representation if requested
and is not in any way prohibitory against the
accused hiring his own counsel.
As to the first argument advanced by counsel
for the Crown, it is important to note that section
34 of the Act, dealing with the conduct of the trial,
in addition to subsection (3) with which I have
dealt, contains the following provisions:
34. (1) At the time and place appointed in the written
charge, the accused shall be brought before the officer who is to
try the offence.
(2) The accused may plead guilty or not guilty, and where he
refuses to plead, he shall be deemed to have pleaded not guilty.
(3) [supra].
(4) An accused is not compelled to testify at his trial, but he
may give evidence under oath; an accused who has not given
evidence under oath shall, at the conclusion of the case for the
prosecution, be given an opportunity of making a statement to
the presiding officer.
(5) An accused may call witnesses on his own behalf and
may cross-examine any witnesses called for the prosecution.
(6) The rules of evidence at a trial under this Part shall be
the same as those followed in proceedings under the Criminal
Code in the courts in the province in which the trial is held, or,
if the trial is held outside Canada, in the courts of Ontario.
(7) The officer presiding at the trial shall cause the evidence
of the witnesses to be taken down and transcribed.
I have never heard of, nor were counsel able to
refer me to any case where a tribunal was held to
be essentially administrative in nature when, to
arrive at its findings, it was obliged to abide by the
rules of evidence in criminal trials, to have the
evidence transcribed and to conduct a trial in such
a formal manner as provided for in section 34.
It would be nothing short of ludicrous to expect
an ordinary layman, without the benefit of legal
counsel, to either understand, abide by or, more
importantly, benefit by the rules of evidence in
criminal matters such as the rules regarding state
ments and admissions made to persons in author
ity. Unlike many other instances where there is an
appeal provided by means of a trial de novo, in the
case of a person convicted under the Royal
Canadian Mounted Police Act the only appeal as
of right is on the record. Therefore, if the accused,
by reason of his lack of legal training, has failed to
get evidence on the record which he should have,
an appeal would not remedy the situation.
Finally, section 33 of the Regulations purports
to be absolute and mandatory. It forbids the use of
outside counsel in all cases, without allowing any
discretion to the tribunal trying the accused
regardless of the legal complexities involved and
regardless of the fact, as in the cases before me,
that time does not appear to be important.
In considering these matters, together with the
severity of the penalties provided for in section 36,
I cannot conceive that Parliament, in the face of
these specific provisions which it enacted, intended
to absolutely deny to all accused the benefit of
counsel of their choice when it authorized the
Governor in Council to issue regulations for the
"discipline, efficiency, administration and good
government of the force".
For the above reasons I find that section 33 of
the Regulations is not authorized under the Act
and is therefore ultra vires and of no effect at least
in so far as a trial for a major service offence
under section 25 of the Act is concerned.
As to the particular circumstances of this case
which really do not affect the question of the
validity of Regulation 33, it is interesting to note
that a duly qualified legal officer had been
appointed as prosecutor according to the custom of
the Force and that the Force, in conformity with
section 34 of the Act, considered the proceedings
as being quite formal and strictly adversary in
nature.
Since, admittedly, no reason exists in the cases
before me for excluding counsel, other than the
provisions of section 33 of the Regulations, an
order will issue prohibiting the service tribunal
from proceeding with the trial of either of these
applicants unless they are allowed to be represent
ed by counsel of their choice.
On examining the general disciplinary scheme
of the Act, one finds that the laying of charges for
minor service offences can be authorized by an
officer junior in rank to one who must authorize
charges for major service offences. Notwithstand
ing this, section 34 requires that the actual trial of
a minor offence be conducted with the same for
mality, be subject to the same strict evidentiary
rules and that its proceedings be taken down and
transcribed in the same manner as a trial on a
major service offence. Minor service offences are
of the type which must necessarily occur frequent
ly and on an almost daily basis even in a well-disci
plined force. They are, more often than not, the
result of inattention or temporary neglect rather
than deliberate disobedience. They are, by their
very definition, relatively unimportant when com
pared to the major offences enumerated in section
25 and might consist of such petty offences as
failure to shine one's shoes, to keep one's uniform
neat and tidy or being late on duty or absent for a
few hours. Yet, in order to punish a member of the
Force by confinement to barracks for a couple of
days, a formal trial must take place with all the
burdensome administrative difficulties, time-con
suming procedures, expense and drain of personnel
that such a trial entails. It is difficult to conceive
how a police force can operate with any degree of
efficiency, maintain a military type of discipline
and at the same time conform strictly to those
particular provisions of an Act. Though the law
draws a clear distinction between the two types of
offences initially at the level of the laying of
charges (reference section 32), as to the constitu
tion of the courts for their trial (reference sections
29 and 30) and finally at the level of punishment
following conviction (reference section 36), it
nevertheless provides for a single trial procedure
which, though fully justified in the case of major
offences, imposes an unnecessarily strict and cum
bersome trial procedure for all minor offences no
matter how petty or lacking in blameworthy intent
they may be. The law in respect of these proce
dures invites, and indeed cries out, for its breach or
circumvention not by indifferent or poorly moti
vated members of the Force but by those who
perhaps are the most anxious to ensure its efficien
cy. This would not appear to be a desirable situa
tion especially in the case of a police force.
The order to be issued being in the nature of a
prerogative writ of prohibition against a tribunal
sitting on a quasi-criminal matter, no costs will be
allowed.
APPENDIX "A" TO REASONS FOR ORDER
OF ADDY J.
Belanger v. The King (1917) 54 S.C.R. 265.
Ulin v. The Queen [1973] F.C. 319.
Attorney General of Canada v. Paulsen [1973] F.C. 376.
Regina v. Drybones [1970] 3 C.C.C. 355.
The Attorney General of Canada v. Lavell [1974] S.C.R. 1349.
Re Walsh and Jordan (1962) 31 D.L.R. (2d) 88.
Re Bachinsky and Sawyer (1974) 43 D.L.R. (3d) 96.
Kedward v. The Queen [1973] F.C. 1142.
Bokor v. The Queen [1970] Ex.C.R. 842.
McCleery v. The Queen [1974] 2 F.C. 339.
Doucette v. Nova Scotia Police Commission (1980) 40 N.S.R.
(2d) 572.
Post Office Act, R.S.C. 1970, c. P-14, s. 6.
Nissan Automobile Co. (Canada) Ltd. v. Pelletier (1980) 97
D.L.R. (3d) 277.
Nissan Automobile Co. (Canada) Ltd. v. Pelletier (1977) 77
D.L.R. (3d) 646.
Maynard v. Osmond [1977] 1 All E.R. 64.
MacKay v. Rippon [1978] 1 F.C. 233.
Martineau v. The Matsqui Institution Inmate Disciplinary
Board [1978] 1 S.C.R. 118.
626 082 762 Private R. C. MacKay v. The Queen [1980] 2
S.C.R. 370.
Nicholson v. Haldimand-Norfolk Regional Board of Commis
sioners of Police [ 1979] 1 S.C.R. 311.
Chisholm v. Jamieson (1974) 47 D.L.R. (3d) 754.
Martineau v. The Matsqui Institution Inmate Disciplinary
Board [1976] 2 F.C. 198.
Ex parte FRY [1954] 2 All E.R. 118.
The Queen v. White [ 1956] S.C.R. 154.
Selvarajan v. Race Relations Board [1976] 1 All E.R. 12.
R. v. Hull Prison Board of Visitors, ex parte St. Germain
[1979] 1 All E.R. 701.
Martineau v. Matsqui Institution Disciplinary Board [1980] 1
S.C.R. 602.
Dubeau v. National Parole Board [1981] 2 F.C. 37.
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.