R. v. Wigglesworth, (1987) 24 O.A.C. 321 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 19, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 24 O.A.C. 321 (SCC)

R. v. Wigglesworth (1987), 24 O.A.C. 321 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version englaise]

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Roger R. Wigglesworth v. Her Majesty the Queen, Attorney General of Canada, Attorney General for Ontario and Attorney General of Quebec

No. 18613

Indexed As: R. v. Wigglesworth

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and La Forest, JJ.

November 19, 1987.

Summary:

An RCMP officer was fined $300 under s. 25(1) of the Royal Canadian Mounted Police Act (Can.) after assaulting a man during questioning (a major service offence). The officer was subsequently charged with common assault contrary to s. 245(1) of the Criminal Code. The Saskatchewan Provincial Court, in a decision reported (1983), 33 C.R.(3d) 44, quashed the information because it placed the accused in double jeopardy contrary to s. 11(h) of the Canadian Charter of Rights and Freedoms. The Crown appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported (1983), 25 Sask.R.. 149; 150 D.L.R.(3d) 748; 7 C.C.C.(3d) 170; 35 C.R.(3d) 322, allowed the appeal, convicted the officer of common assault and fined him $250.00. The officer appealed.

The Saskatchewan Court of Appeal, in a decision reported [1984] 3 W.W.R. 289; 31 Sask.R. 153; 7 D.L.R.(4th) 361; 11 C.C.C.(3d) 27; 38 C.R.(3d) 388, dismissed the appeal and affirmed the officer's conviction. The officer appealed. Dickson, C.J.C., stated two constitutional questions for the court: 1. Is a prosecution by the Crown under s. 245(1) of the Criminal Code for common assault in relation to an act for which the accused has been previously convicted and fined under s. 25(1) of the Royal Canadian Mounted Police Act in violation of s. 11(h) of the Canadian Charter of Rights and Freedoms?, and 2. If such a prosecution under the Criminal Code does violate s. 11(h) of the Charter, is the prosecution justified under s. 1 of the Charter? The Supreme Court of Canada, Estey, J., dissenting, dismissed the accused's appeal. The court answered the first constitutional question in the negative. The court held that s. 11 applied to a proceeding involving a major service offence under the Royal Canadian Mounted Police Act, but that the subsequent criminal prosecution being a different and separate offence was not "being tried twice for the same offence" within the meaning of s. 11(h) of the Charter. In view of its answer to question 1, the court did not find it necessary to answer question 2.

Estey, J., dissenting, agreed that s. 11 of the Charter applied to a trial conducted pursuant to the Royal Canadian Mounted Police Act for a major service offence, but that the subsequent criminal prosecution was punishment twice for the same offence contrary to s. 11(h).

See also: Trimm v. Durham Regional Police Force et al., 81 N.R. 197; Burnham v. Toronto Police Force et al., 81 N.R. 207; Trumbley and Pugh et al. v. Toronto Police Force et al., 81 N.R. 212.

Civil Rights - Topic 646

Liberty - Limitations on - Imprisonment - In discussing the types of proceedings to which the protections of s. 11 of the Charter applied, the Supreme Court of Canada stated that it had "grave doubts whether any body or official which exists in order to achieve some administrative or private disciplinary purpose can ever imprison an individual. Such a deprivation of liberty seems justified as being in accordance with fundamental justice under s. 7 of the Charter only when a public wrong or transgression against society, as opposed to an internal wrong, is committed" - See paragraph 24.

Civil Rights - Topic 3764

Punishment - Double punishment prohibited - The Royal Canadian Mounted Police Act, s. 25, created various major service offences for certain conduct by officers - The Supreme Court of Canada held that the protections of s. 11 of the Charter apply to proceedings in respect of major service offences before the RCMP Service Court because such proceedings although not criminal in nature, attracted "true penal consequences" - The court held however that a criminal prosecution following a conviction of a major service offence arising out of the same matter did not violate s. 11(h) because the criminal proceeding does not constitute being tried and punished twice for the same offence as the offences are different.

Civil Rights - Topic 8305.1

Canadian Charter of Rights and Freedoms - Application - S. 11 - The Supreme Court of Canada stated that "the rights guaranteed by s. 11 of the Charter are available to persons prosecuted by the State for public offences involving punitive sanctions, i.e. criminal, quasi-criminal and regulatory offences, either federally or provincially enacted" - The court then set out the factors which led to this conclusion - See paragraphs 16 to 20 - The court also discussed the test to determine whether specific proceedings were proceedings in respect of a criminal or penal matter so as to fall within the ambit of s. 11 - See paragraphs 21 to 25 - The court emphasized that where s. 11 is not applicable the procedural protections of s. 7 may apply - See paragraph 25.

Civil Rights - Topic 8305.1

Charter - Application - S. 11 - The Supreme Court of Canada discussed the types of proceedings to which s. 11 of the Charter applies - The court stated that two types of matters fall within s. 11: (1) matters of a public nature intended to promote public order and welfare within a public sphere of activity (the "nature test") (i.e. all prosecutions under the Criminal Code or for quasi-criminal offences under provincial legislation), and (2) proceedings which attract "true penal consequences" (i.e. imprisonment or fines which appear to redress wrongs done to society at large rather than for maintenance of internal discipline within a limited sphere of activity) - The court stated also that where a matter is not by its nature within the ambit of s. 11, but does involve true penal consequences, the nature test must "give way" to the penal consequences test - The court held that s. 11 did not apply to private, domestic or disciplinary matters involving no true penal consequences and to other matters which did not meet the "nature test" (e.g. licencing or administrative proceedings) - See paragraphs 21 to 26.

Civil Rights - Topic 8404

Charter - Criminal proceedings - Double jeopardy - [See Civil Rights - Topic 3764 above].

Civil Rights - Topic 8404

Canadian Charter of Rights and Freedoms - Criminal proceedings - Double jeopardy - An RCMP officer was convicted of assaulting a man during questioning and fined $300.00 under the Royal Canadian Mounted Police Act, s. 25(1) (a major service offence) - He was subsequently convicted of common assault under s. 245(1) of the Criminal Code arising out of the same incident - The Supreme Court of Canada held that the officer was entitled to the protections of s. 11 of the Charter, but that the subsequent criminal prosecution did not constitute being tried twice for the same offence within the meaning of s. 11(h) of the Charter and therefore the officer could be convicted of both offences.

Civil Rights - Topic 8426

Charter - Operation - Nature or true consequences test (s. 11) - [See second Civil Rights - Topic 8305.1 above].

Civil Rights - Topic 8426

Charter - Operation - Nature or true consequences test (s. 11) - The Supreme Court of Canada stated that "the Royal Canadian Mounted Police Code of Discipline is concerned with the maintenance of discipline and integrity in the force. It is designed to regulate conduct within a limited sphere of activity i.e. conduct relevant to one's position as a member of the RCMP" - The court held that a proceeding wherein an officer is charged with a disciplinary offence (i.e. major service offence) under the Code is not by its nature within the ambit of s. 11 of the Charter, but because such offences attract "true penal consequences" (fines or imprisonment which appear to address a public wrong), s. 11 applies to major service offence proceedings before the RCMP Service Court - See paragraph 26.

Civil Rights - Topic 8461

Canadian Charter of Rights and Freedoms - Interpretation - General - The Supreme Court of Canada discussed briefly the use of marginal notes when interpreting the Charter - The court looked to the marginal notes when interpreting the meaning of the phrase "charged with an offence" in s. 11 of the Charter - See paragraph 19.

Civil Rights - Topic 8545

Charter - Interpretation - Particular phrases - Charged with an offence - [See first Civil Rights - Topic 8305.1 above].

Civil Rights - Topic 8545

Charter - Interpretation - Particular phrases - Charged with an offence - [See Civil Rights - Topic 3764 above].

Criminal Law - Topic 82

Res judicata - Multiple convictions for same subject matter precluded - Bars to raising defence - The Supreme Court of Canada stated that "in the context of proceedings before disciplinary tribunals there is ample authority for the view that disciplinary offences are separate and distinct from criminal offences for the purpose of the rule against multiple convictions" - See paragraph 27.

Criminal Law - Topic 82

Res judicata - Multiple convictions for same subject matter precluded - Bars to raising defence - [See Civil Rights - Topic 3764 above].

Criminal Law - Topic 120

Double jeopardy - General - [See first Criminal Law - Topic 82 above].

Criminal Law - Topic 120

Double jeopardy - General - [See Civil Rights - Topic 3764 above].

Police - Topic 4061

Internal organization - Discipline of members - General - [See second Civil Rights - Topic 8404 above].

Police - Topic 4243

Internal organization - Discipline - Rights of officers - Charter rights - [See second Civil Rights - Topic 8404 above].

Police - Topic 4243

Internal organization - Discipline - Rights of officers - Charter rights - [See Civil Rights - Topic 3764 above].

Police - Topic 4243

Internal organization - Discipline - Rights of officers - Charter rights - [See second Civil Rights - Topic 8426 above].

Statutes - Topic 1845

Interpretation - Intrinsic aids - Headings and section numbers - Marginal notes - [See Civil Rights - Topic 8461 above].

Words and Phrases

Charged with an offence - The Supreme Court of Canada discussed the meaning of this phrase as it appeared in s. 11 of the Canadian Charter of Rights and Freedoms.

Cases Noticed:

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [para. 12].

R. v. Mingo (1982), 2 C.C.C.(3d) 23 (B.C.S.C.), consd. [paras. 13, 18].

Yeomans v. Gaw (1985), 22 C.C.C.(3d) 311 (F.C.A.), consd. [para. 13].

Howard v. Stony Mountain Institution Inmate Disciplinary Court (Presiding Officer) (1983), 8 C.C.C.(3d) 557 (F.C.T.D.), consd. [para. 13].

Re Peltari and Director of the Lower Mainland Regional Correctional Centre (1984), 15 C.C.C.(3d) 223 (B.C.S.C.), consd. [para. 13].

Knockaert v. Commissioner of Corrections (1986), 2 F.T.R. 179; 18 Admin. L.R. 273 (F.C.T.D.), consd. [para. 13].

Russell v. Radley, [1984] 1 F.C. 543 (T.D.), consd. [para. 13].

Re James and Law Society of British Columbia (1982), 143 D.L.R.(3d) 379 (B.C.S.C.), consd. [para. 13].

Rosenbaum v. Law Society of Manitoba, [1983] 5 W.W.R. 752; 22 Man.R.(2d) 260 (Man. Q.B.), consd. [para. 13].

Belhumeur v. Discipline Committee of Quebec Bar Association (1983), 34 C.R.(3d) 279 (Que. S.C.), consd. [paras. 13, 17].

Law Society of Manitoba v. Savino (1983), 23 Man.R.(2d) 293; 1 D.L.R.(4th) 285 (Man. C.A.), consd. [paras. 13, 17, 18, 23].

Fang v. College of Physicians and Surgeons (Alta.) (1985), 66 A.R. 352; 25 D.L.R.(4th) 632 (Alta. C.A.), consd. [paras. 13, 15].

Re Nash and The Queen (1982), 70 C.C.C.(2d) 490 (Nfld. Prov. Ct.), consd. [para. 14].

Lazarenko, Re (1983), 50 A.R. 337; 4 D.L.R.(4th) 389 (Alta. Q.B.), consd. [para. 15].

R. v. B & W Agricultural Services Ltd. (1982), 3 C.R.R. 354 (B.C. Prov. Ct.), consd. [paras. 15, 18].

Trumbley and Pugh et al. v. Toronto Police Force et al. (1986), 15 O.A.C. 279; 55 O.R.(2d) 570, consd. [paras. 17, 18].

Barry and Brosseau v. Alberta Securities Commission (1986), 67 A.R. 222; 25 D.L.R.(4th) 730 (Alta. C.A.), consd. [paras. 17, 23].

Eastern Counties and London and Blackwall Railway Cos. v. Marriage (1860), 9 H.L. Cas. 31, refd to. [para. 19].

Sheffield Waterworks Co. v. Bennett (1872), L.R. 7 Ex. 409, refd to. [para. 19].

Stephens v. Cuckfield Rural District Council, [1960] 2 All E.R. 716 (C.A.), refd to. [para. 19].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321; 11 C.C.C.(3d) 481; 9 D.L.R.(4th) 161; 8 C.R.R. 193, consd. [para. 19].

Canada (Attorney General) v. Canadian Pacific Ltd., [1986] 1 S.C.R. 678; 66 N.R. 321, refd to. [para. 19].

Re McCutcheon and City of Toronto (1983), 147 D.L.R.(3d) 193 (H.C.J.), consd. [para. 22].

Re Malartic Hygrade Gold Mines (Canada) Ltd. and Ontario Securities Commission (1986), 54 O.R.(2d) 544 (Ont. H.C.), refd to. [para. 23].

R. and Archer v. White, [1956] S.C.R. 154, consd. [para. 26].

Re Radey and Superintendent of Royal Canadian Mounted Police, [1979] 2 F.C. 457; 47 C.C.C.(2d) 148 (F.C.A.), consd. [para. 26].

Van Rassel v. Royal Canadian Mounted Police, [1987] 1 F.C. 473; 7 F.T.R. 187, consd. [para. 26].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119, consd. [paras. 27, 34].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524; 26 C.R.N.S. 1; 44 D.L.R.(3d) 351, consd. [para. 27].

Re Pelissero and Loree (1982), 140 D.L.R.(3d) 676 (Ont. H.C.), refd to. [para. 27].

Re MacDonald and Marriott (1984), 7 D.L.R.(4th) 697 (B.C.S.C.), refd to. [para. 27].

R. v. DeBaie (1983), 60 N.S.R.(2d) 78; 128 A.P.R. 78 (N.S.C.A.), refd to. [para. 27].

R. v. Belliveau (1984), 55 N.B.R.(2d) 82; 144 A.P.R. 82 (C.A.), refd to. [para. 27].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 2(f) [paras. 15, 18].

Canadian Charter of Rights and Freedoms, sect. 11, sect. 11(h) [para. 1 et seq.]; sect. 7 [para. 25].

Constitution Act 1867, sect. 92(15) [para. 18].

Criminal Code, R.S.C. 1970, c. C-34, sect. 245(1).

Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, sect. 25, sect. 25(1) [para. 1 et seq.]; sect. 36(1) [paras. 6, 26]; sect. 45 [para. 24].

Royal Canadian Mounted Police Code of Discipline [para. 26].

Authors and Works Noticed:

Craies, William Feilden, Craies on Statute Law (7th Ed. 1971), p. 195 [para. 19].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 133 [para. 19].

Manning, Morris, Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982 (1983), generally [para. 18]; p. 362 [para. 15].

Maxwell, P.B., Maxwell on the Interpretation of Statutes (12th Ed. 1969), p. 10 [para. 19].

McDonald, David C., Legal Rights in the Canadian Charter of Rights and Freedoms: A Manual of Issues and Sources (1982), p. 83 [para. 15].

Spencer, Bower and Turner, The Doctrine of Res Judicata (2nd Ed. 1969), p. 279 [para. 27].

Stuart, Don, Annotation to R. v. Wigglesworth (1984), 38 C.R.(3d) 388, p. 389 [para. 24].

Counsel:

Gerald N. Allbright, Q.C., for the appellant;

Carol Snell and Graeme G. Mitchell, for the respondent;

Julius Isaac, Q.C., and Yvon Vanasse, for the intervener the Attorney General of Canada;

Dennis W. Brown, Q.C., and Peter R. Jervis, for the intervener the Attorney General for Ontario;

Yves de Montigny and Françoise Saint-Martin, for the intervener the Attorney General of Quebec.

Solicitors of Record:

Gerald N. Allbright, Saskatoon, Saskatchewan, for the appellant;

Attorney General for Saskatchewan, Regina, for the respondent;

Frank Iacobucci, Ottawa, Ontario, for the intervener the Attorney General of Canada;

Richard F. Chaloner, Toronto, Ontario, for the intervener the Attorney General for Ontario;

Daniel Jacoby, Quebec, for the intervener the Attorney General of Quebec.

<seg name=SOLICITORS n=112>Gerald N. Allbright, Saskatoon, Saskatchewan, for the appellant

Attorney General for Saskatchewan, Regina, for the respondent

Frank Iacobucci, Ottawa, Ontario, for the intervener the Attorney General of Canada

Richard F. Chaloner, Toronto, Ontario, for the intervener the Attorney General for Ontario

Daniel Jacoby, Quebec, for the intervener the Attorney General of Quebec

This appeal was heard on March 3 and 4, 1987, before Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and La Forest, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered in both official languages on November 19, 1987, including the following opinions:

Wilson, J. - see paragraphs 1 to 29;

Estey, J., dissenting - see paragraphs 30 to 38.

Dickson, C.J.C., Beetz, McIntyre, Lamer and La Forest, JJ., concurred with Wilson, J.