Attorney General of Alberta et al. v. Putnam et al.

Attorney General of Alberta et al. v. Putnam et al.
Collection
Supreme Court Judgments
Date
1981-05-28
Report
[1981] 2 SCR 267
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio
On appeal from
Alberta
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Attorney General of Alberta et al. v. Putnam et al., [1981] 2 S.C.R. 267
Date: 1981-05-28
The Attorney General of Alberta and the Law Enforcement Appeal Board Appellants;
and
Constable K.W. Putnam and Constable M.G.C. Cramer Respondents;
and
The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Quebec, the Attorney General of Nova Scotia, the Attorney General for New Brunswick, the Attorney General of British Columbia, the Attorney General of Manitoba, the Attorney General for Saskatchewan Interveners.
1980: December 10, 11; 1981: May 28.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA
Constitutional law—Policing and law enforcement function in province by R.C.M.P.—Whether R.C.M.P. subject to provincial Police Act—The Police Act, 1973, 1973 (Alta.), c. 44, ss. 2, 33, 37—Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, ss. 11, 14(1), 17(3), 18, 21, 33—British North America Act, R.S.C. 1970, Appendix II, ss. 91(27), 92(14)—The Municipal Police Disciplinary Regulations, 179/74, s. 1 (1), (2).
Respondent R.C.M.P. officers were assigned police duties in Wetaskiwin, Alberta, pursuant to an agreement between the municipality and the federal government. A citizen, allegedly harassed during a narcotics investigation, made a complaint to the provincial Attorney-General who referred it to the force’s provincial Commanding Officer pursuant to The Police Act, 1973. The complaint was found to be unjustified and complainant appealed to the Law Enforcement Appeal Board under s. 33(4) of the Act. Prohibition proceedings followed with both courts below upholding the ground that the province had no authority over the disciplining of R.C.M.P. officers. This Court considered whether the province could apply those provisions of its Police Act, 1973 dealing with inquiries into the conduct and performance on duty to R.C.M.P. officers performing police duties within the province.
Held (Dickson J. dissenting): The appeal should be dismissed.
Per Laskin C.J. and Martland, Ritchie, Beetz, McIntyre, Chouinard and Lamer JJ.: Any distinction to be drawn between investigation of a complaint and discipline as a result of the investigation was artificial and could not be made under The Police Act, 1973, particularly s. 33, which established a code of discipline applicable to R.C.M.P. enforcing the Criminal Code, provincial law or municipal by-laws. The province had no authority over the disciplining of R.C.M.P. officers and was not entitled to authorize inquiry into a citizen’s complaint against those officers on duty in the province pursuant to contract. All R.C.M.P. officers are subject to the force’s disciplinary code, regardless of duty, and remain under it—as specifically expressed by article 2 of the contract in this case—when providing provincial or municipal police duties pursuant to contract. While the province has a valid concern in the efficacy of the arrangement, one contracting party cannot invade the organization adopted by the other contracting party in the delivering of services contracted for under the arrangement.
Per Dickson J. dissenting: A provincially-appointed tribunal can be given authority to review the decision of the Commanding Officer of the R.C.M.P. respecting the conduct of the force’s members in the province. The province has constitutional authority to discipline all police officers engaged in administering justice within the province and does not interfere with the “internal management” of the R.C.M.P. when it exercises that authority. Since there is no constitutional impediment to the province’s investigating and prosecuting any members of the R.C.M.P. charged with a criminal offence, there is no reason to deny the province that right with respect to less serious conduct.
This inquiry, dealing with the impugned conduct of a particular officer and only touching incidentally on the workings of the R.C.M.P., was quite unlike the Keable case. Nothing in s. 33 of The Police Act, 1973 constituted an attempt to manage or control the R.C.M.P. Granting federal employees immunity from valid and general applicable provincial laws was counter to the “pith and substance” doctrine, a central canon of constitutional interpretation. The doctrine of paramountcy did not apply: The Police Act, 1973 was concerned with the general relationships between the police forces in the province and the general public, and did not expressly contradict the R.C.M.P. Act and regulations which dealt with the matter of “service offences”. The fact that the officers were investigating a breach of a “non-criminal” statute was irrelevant for constitutional purposes for they remain part of “provincial police services” within the meaning of the policing agreement, and therefore under provincial supervision.
[Attorney General of the Province of Quebec and Keable v. Attorney General of Canada et al., [1979] 1 S.C.R. 218, referred to.]
APPEAL from a judgment of the Alberta Court of Appeal[1], dismissing an appeal from a judgment of the Court of Queen’s Bench of Alberta. Appeal dismissed.
R.W. Paisley, Q.C., and William Henkel, Q.C., for the appellants.
M.G. Stevens Guille, for the respondents.
D.W. Mundell, Q.C., for the intervener the Attorney General for Ontario.
Henri Brun, for the intervener the Attorney General of Quebec.
Martin E. Herschorn and Kenneth W. Fiske, for the intervener the Attorney General of Nova Scotia.
H. Hazen Strange, Q.C., for the intervener the Attorney General for New Brunswick.
Louis F. Lindholm and P. Pearlman, for the intervener the Attorney General of British Columbia.
N.D. Shende and R.S. Perozzo, for the intervener the Attorney General of Manitoba.
George Taylor, Q.C., for the intervener the Attorney General for Saskatchewan. D.H. Christie, Q.C., and S.R. Fainstein, for the intervener the Attorney General of Canada.
The judgment of Laskin C.J. and Martland, Ritchie, Beetz, Estey, McIntyre, Chouinard and Lamer JJ. was delivered by
THE CHIEF JUSTICE—This is an appeal from the judgment of the Alberta Court of Appeal, affirming a judgment of Miller J. who granted prohibition against the Alberta Law Enforcement Appeal Board in respect of proceedings before that Board arising out of a citizen’s complaint against the respondents Putnam and Cramer, members of the Royal Canadian Mounted Police. The appeal is here by leave of this Court and engages a constitutional question propounded as follows:
Is it constitutionally open to the Province of Alberta to apply its Police Act, 1973 (Alta), c. 44 to members of the R.C.M.P. in respect of inquiries hereunder into the conduct and performance of duty of those who perform policing and law enforcement functions in the Province?
It is common ground that the complaint against the R.C.M.P. officers arose out of their alleged harassment of the complainant during a narcotic investigation, in the course of which he was searched for drugs. The complaint was referred by the Attorney General of the province to the Commanding Officer in Alberta of the R.C.M.P., pursuant to s. 33(1) of The Police Act, 1973. He found the complaint to be unjustified and an appeal was taken by the complainant to the Law Enforcement Appeal Board under s. 33(4) of the Act. The prohibition proceedings followed.
The respondent officers were members of a detachment of R.C.M.P. officers assigned to Wetaskiwin, Alberta, pursuant to a policing agreement entered into between the Government of Canada and the City of Wetaskiwin, The validity of this agreement, dated May 24, 1977, is not in issue. It provided for a unit of nine R.C.M.P. officers to be supplied by the R.C.M.P. The removal of any assigned member could be sought by the municipality, but the decision of the Commissioner of the R.C.M.P. on any request for removal was to be final. The agreement provided for “Municipal Police Services”, which were defined therein in these terms:
–means the aggregate of resources and members of the Force in the Municipality employed pursuant to this Agreement in the enforcement of the Criminal Code, Provincial Statutes and Municipal By-Laws except resources, members and staff employed primarily in:
(i) the enforcement of Federal Statutes other than the Criminal Code,
(ii) National Police Service,
(iii) the maintenance of national security,
(iv) providing the security and protection of Federal Government property,
(v) services provided to or on behalf of Federal Government Departments.
Article 2 of the agreement was as follows:
2. The internal management of the Municipal Police Services including the administration and application of professional police procedures shall remain under the control of Canada.
The basic contention of the appellants was that The Police Act, 1973, and particularly s. 33 thereof, drew a distinction between investigation of a complaint and discipline as a result of the investigation, and that although the province had no authority over the disciplining of officers of the R.C.M.P., it was entitled to authorize inquiry into a citizen’s complaint against R.C.M.P. officers who were in the province pursuant to contract. This position was supported by all the provincial Attorneys General intervenants, save the Attorney General of British Columbia on whose behalf it was contended that it was as fully open to the province to provide for discipline under its legislation as it was to provide merely for investigation.
The Attorney General of British Columbia carried his submission even farther by contending that officers of the R.C.M.P. had no independent legal right to be in Alberta to enforce federal criminal law, and that in so far as they were there, pursuant to an agreement with the province or with any municipality, it was still necessary for them to be sworn in as peace officers pursuant to Alberta authorization as a condition of exercising their functions. It was not shown that they were so sworn. However, s. 37 of The Police Act, 1973 absolves them from taking the usual oath required of local police. Moreover, members of the R.C.M.P. may be made peace officers under s. 7(4) of the Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, and thereupon are such in every part of Canada under s. 17(3).
What the foregoing submission amounts to is an attack on the validity of the constituent Act of the R.C.M.P. It runs counter to what this Court said in Attorney General of the Province of Quebec and Keable v. Attorney General of Canada et al.[2] and, in my opinion, it is completely untenable. This Court decided in the Keable case that it was beyond the competence of a province to authorize a provincial board of inquiry, concerned with looking into allegations of illegal or reprehensible acts by various police forces, including the R.C.M.P., to extend its inquiry into the administration and management of that police force. In giving the unanimous opinion of the Court on this matter, Pigeon J. said this (at p. 242):
Parliament’s authority for the establishment of this force and its management as part of the Government of Canada is unquestioned. It is therefore clear that no provincial authority may intrude into its management. While members of the force enjoy no immunity from the criminal law and the jurisdiction of the proper provincial authorities to investigate and prosecute criminal acts committed by any of them as by any other person, these authorities cannot, under the guise of carrying on such investigations, pursue the inquiry into the administration and management of the force.
The Law Enforcement Appeal Board, as constituted by The Police Act, 1973 is to consist of not more than three members of whom at least one must be a member of the judiciary, and it is a judiciary member who is to be appointed chairman. Under s. 14(1), the Board (which, under s. 11, has subpoena powers to enforce compulsory attendance of witnesses) is given a general authority to hold sittings and conduct investigations, hearings and inquiries at any place in Alberta and may hold a hearing, investigation or inquiry in private. Although the main thrust of The Police Act, 1973 is in respect of municipal police, it also contemplates that the municipal policing function may be carried out by the R.C.M.P. under an agreement with the Government of Canada. Section 36 makes provision for such an agreement, and I have already referred to the one in existence here.
This brings me to the key provision s. 33 upon which the submissions in this appeal were centered. It is necessary to reproduce the whole section because of the submissions and counter-submissions on whether it does distinguish between mere investigation and imposition of discipline (as is alleged by the appellants and supporting interveners) or whether this is a purely artificial distinction which is not made and, indeed, cannot be made under the terms of s. 33. The section reads as follows:
33. (1) Complaints, including those received by the Solicitor General, the Board, the commission, or, where there is no commission, the council, respecting the conduct or performance of duty of any member or members of a police force other than the chief of police, shall be directed in the first instance to the chief of police or the Commanding Officer in Alberta of the Royal Canadian Mounted Police, as the case may be, for investigation and such action as he considers advisable.
(2) Where practical a complaint shall be in writing and signed by the complainant.
(3) The chief of police or the Commanding Officer in Alberta of the Royal Canadian Mounted Police, as the case may be, shall cause each complaint to be investigated and as soon as possible after receipt of the complaint shall inform the complainant in writing as to whether he has found all or any portion of the complaint to be justified and whether disciplinary action is to be taken, and in all cases where the chief of police or Commanding Officer of the Royal Canadian Mounted Police has found all or any portion of the complaint not to be justified he shall inform the complainant of his right of appeal to the Board. (4) The complainant may, within 30 days after receipt of the information referred to in subsection (3), file with the secretary of the Board a notice of appeal setting forth the grounds upon which the appeal is based.
(5) Any member of a municipal police force who feels himself aggrieved by disciplinary action taken against him under this Act or the regulations or the rules of the commission may, within 30 days after being advised of the disciplinary action, file with the secretary of the Board a notice of appeal setting forth the grounds upon which the appeal is based.
(6) The Chairman of the Board may, before or after the expiration of the time for service of a notice of appeal, extend the time of service for a further period hot exceeding 30 days.
(7) The commission may request that the Board investigate the whole or any portion of a complaint held by the chief of police or the Commanding Officer of the Royal Canadian Mounted Police under subsection (3) not to be justified.
(8) Notwithstanding subsection (1), the Board
(a) may, upon its own motion, conduct an investigation respecting any complaint;
(b) shall, upon the direction of the Solicitor General, conduct an investigation into any matter relating to the discipline or conduct of any member or members of a police force.
(9) The chief of police or the Commanding Officer in Alberta of the Royal Canadian Mounted Police, as the case may be, shall, when requested to do so, supply the Board or commission with copies of all investigation reports, statements and correspondence sent and received with respect to a complaint.
(10) Where an appeal is filed under this section, any disciplinary action taken as a result of the decision from which the appeal is taken shall be stayed without further order until the appeal is terminated.
(11) In conducting an investigation or determining an appeal under this section the Board may make its decision on the record, or, where it considers it necessary, may hear evidence.
(12) In determining an appeal under subsection (4) or (5) the Board may
(a) dismiss the appeal, or
(b) allow the appeal, or
(c) vary the punishment imposed, or
(d) affirm the punishment imposed, or (e) refer the matter back to the chief of police or the Commanding Officer of the Royal Canadian Mounted Police for review, or
(f) impose punishment in accordance with regulations or rules made under the authority of this Act.
(13) The Board shall in writing inform
(a) the complainant in the case of appeal under subsection (4) or the appellant in the case of appeal under subsection (5),
(b) the commission, and
(c) the Solicitor General
as to the decision of the Board.
(14) When the Board is satisfied that the conduct of the member or members of a police force who are involved in the investigation or appeal may constitute an offence under an Act of the Parliament of Canada or the Legislature of Alberta, the investigation or appeal shall be adjourned indefinitely and the Board shall forthwith inform the Attorney General of its conclusion.
(15) Notwithstanding subsection (14), the Board may continue the investigation, hearing or appeal into matters concerning members of a police force other than those who may have committed an offence.
I draw particular attention, for the moment, to s. 33(12)(f) under which the Board may “impose punishment in accordance with regulations or rules made under the authority of this Act”. The appellants first contended that there were no such regulations or rules, seeking thus to fortify the distinction that they drew between investigation and discipline. It was made manifest to counsel by the Court that for the purpose of engaging the constitutional question, The Police Act, 1973 must be taken as speaking fully and that, consequently, it must be envisaged as comprehending punishment by the Board where it may not have been imposed by the Chief of Police or by the R.C.M.P. commanding officer. The appellants nonetheless insisted that the distinction that they drew was still maintainable, especially in view of The Municipal Police Disciplinary Regulations passed under The Police Act, 1973. In short, it was their submission that whatever regulations or rules might be passed under s. 33(12)(f) they would not apply to the R.C.M.P. Reliance was placed upon s. 1 of The Municipal Police Disciplinary Regulations, enacted under The Police Act, 1973, which reads:
1. (1) This regulation applies to members of municipal police forces established under the authority of section 18 of The Police Act, 1973.
(2) The disciplinary procedures contained in The Royal Canadian Mounted Police Act (Canada) will apply to members of the Royal Canadian Mounted Police employed in the policing of an urban municipality under an agreement provided for in section 36, subsection (1) of The Police Act, 1973.
It was said that s. 1(2), just quoted, took the R.C.M.P. out of the compass of The Police Act, 1973 at least so far as discipline was concerned, that it had no enacting force but merely recognized the existing constitutional position which precluded provincial interference with the internal management; the internal administration of the R.C.M.P. It was not, it was said, an incorporation by reference of the R.C.M.P. disciplinary procedures into the operation of The Police Act, 1973. This, from one point of view, is a self-defeating submission. The R.C.M.P. disciplinary procedures are very detailed in the way that they deal with members of that Force. They provide for complaints, for investigation, for punishment, for review in accordance with prescribed formalities. If, therefore, the R.C.M.P. is outside The Police Act, 1973, it is outside it for all purposes, and the constitutional question propounded in this case does not arise, In fact, the case would be completely emptied.
I would not, however, take this view of the case. It is clear to me that The Police Act, 1973 in s. 33 especially, envisages the complaint as merely the initiation of an inquiry that must lead to discipline if the complaint is justified or, if it is found to be unjustified, authorizes an appeal in which the Board may impose punishment or some form of discipline. I cannot read s. 33(3), (5), (7), (8), (9) and (12) without being amply persuaded that it sets up a code for discipline to which members of the R.C.M.P. are to be subjected. The Board’s power under s. 33(8)(a) to conduct an investigation on its own respecting any complaint, and the power vested in the provincial Solicitor General to direct the Board to investigate any matter relating to the discipline or conduct of any member or members of a police force, both speak broadly to that end. It is impossible to read s. 33 in a segmented way or to read subs. (12) as if only clause (e) applied to the R.C.M.P. Even subs. (5) of s. 33, respecting an appeal from discipline by an aggrieved “member of a municipal police force” might be said to cover the R.C.M.P. detachment assigned to the municipality in view of the provisions for municipal policing prescribed by s. 18 of The Police Act, 1973. I would add that I see nothing in s. 33(14) to alter my view of the main issue herein. It merely recognizes that R.C.M.P. officers are not immune from the duty which lies upon all citizens to obey the law and that in case of an alleged infraction they may be subject to prosecution and punishment. Indeed, s. 33(14) underlines the Board’s authority to proceed with disciplinary procedures where there is no offence but rather improper behavior meriting discipline.
Moreover, I would not agree that this appeal falls to be decided on a narrow fact situation arising from the circumstance that the complaint against the respondents was connected with an investigation under the federal Narcotic Control Act, being an activity excluded from the definition of “municipal police services”. The position would be no different, so far as the constitutional question is concerned, if the R.C.M.P. detachment were concerned with the enforcement of the criminal law or of provincial law or municipal by-laws. It does not appear to me to be possible or practical to separate the law enforcement duties of the R.C.M.P. detachment for the purpose of determining whether in some respects they are subject to the procedures of The Police Act, 1973 and in others not. The R.C.M.P. code of discipline is applicable to officers of that force, whatever be their duties, and the fact that policing contracts are authorized with a province or a municipality does not, as article 2 of the contract in this case expressly specifies, remove them from federal disciplinary control.
I should like to say, before disposing of this appeal, that I recognize that there is a provincial interest in policing arrangements under this or any other contract between the Province and the R.C.M.P. The Province, by this contract, has simply made an en bloc arrangement for the provision of policing services by the engagement of the federal force rather than establishing its own force directly or through a municipal institution. The performance of the parties under the agreement of their respective roles is, of course, a matter of continuing interest to the parties if for no other reason than the constant contemplation of renewal negotiations. The Province of Alberta, for example, must have a valid concern in the efficacy of the arrangement, not only from an economic or efficiency viewpoint, but also from the point of view of the relationship between the Government of Alberta through its policing arrangements and the community which is the beneficiary of those police service arrangements. This, however, is a far cry from the right of one contracting party to invade the organization adopted by the other contracting party in the delivery of the services contracted for under the arrangement. This is so apart altogether from any constitutional impediment so clearly raised here as it was in Keable, supra. I say this not so as to narrow the impact of the observations on the issue directly raised in this appeal, but to contrast the position of the R.C.M.P. as a federal institution with the provincial interest in the provision of policing services throughout the Province. Here there can be no suggestion of finding a root in that provincial interest for the various subsections of s. 33 to which I have already adverted.
I am, in other respects, in substantial agreement with the comprehensive reasons of McGillivray C.J.A. and would, accordingly, affirm the judgments below and dismiss the appeal. The constitu- tional question must be answered in the negative. None of the parties asked for costs and there will, therefore, be no order as to costs.
The following are the reasons delivered by
DICKSON J. (dissenting)—This case raises once again the federal-provincial issue that surfaced in cases such as Di Iorio et al. v. The Warden of the Common Jail of the City of Montreal[3] and R. v. Hauser[4]: what is the scope and meaning of the phrase “Administration of Justice in the Province” in s. 92(14) of the British North America Act, 1867? In these earlier cases, the broad outlines of the meaning of “Administration of Justice” have been sketched by the Court. The present case provides an opportunity to give a more precise definition.
The issue in the appeal is whether a provincially-appointed tribunal can be given authority to review the decision of the Commanding Officer of the Royal Canadian Mounted Police (“R.C.M.P.”) respecting the conduct of members of the force in the province. The purpose of the review is to provide the public with an independent assessment of the conduct of law enforcement officers.
It has never been doubted that constitutionally the phrase “Administration of Justice in the Province” included responsibility for providing general policing services. Thus it is clear that the province can appoint, control and discipline municipal and provincial police officers. The constitutional difficulty in the present case arises from the fact that, at present, provincial policing services are carried out in all provinces, other than Ontario and Quebec, by the R.C.M.P. under contract between the federal and provincial governments. The R.C.M.P. also police many municipalities under contract with the authorities of those communities. Thus great areas of the policing services across Canada at the provincial and local level are carried out by a federal “para-military” force (to use Rand J.’s description in The Queen and Archer v. White[5], at p. 158) constitutionally accountable, according to the federal position in this appeal, only to Ottawa.
No particular difficulty arises in respect of the enforcement by the R.C.M.P. of non-Criminal Code federal statutes, policing the Yukon and Northwest Territories, and providing a national security service. Difficulties, both constitutional and de facto, do arise, however, in respect of the enforcement by the R.C.M.P. of the provisions of the Criminal Code and provincial and municipal penal enactments. The difficulty is well described in a study paper The Police recently published by the Law Reform Commission of Canada. I do not quote the passage as authority on any constitutional issue but rather for the purpose of emphasizing the practical difficulties emanating from the present arrangements. The passage reads (at p. 35):
…no matter how clear a provincial Attorney-General’s constitutional responsibility may be to control the R.C.M.P. when they are present in a province on contract, the police so employed are still subject to the R.C.M.P. Act and Regulations and thus to the operational control of senior officers at R.C.M.P. Headquarters in Ottawa. This can, in a case where provincial and federal interests do not coincide, severely lessen the control of the Provincial Attorneys-General and place individual R.C.M.P. officers in the difficult position of having to march to the tune of two different drums.
The Attorney General of Canada argues that constitutionally the individual R.C.M.P. officers march to one drum only, the federal instrument. It is contended that though the policing of the provinces falls generally within provincial constitutional responsibility, nevertheless members of the R.C.M.P. are ultimately under the operational control of the Commissioner in Ottawa, who in turn is responsible only to the Solicitor General of Canada. It is further said that the only rights in respect of the force which may be exercised provincially are those which flow from the agreements entered into by the Government of Canada with local authorities for the provision of police services. In my view such agreements do not affect the constitutional issue posed in this appeal. Constitutional competence cannot be diminished or increased by agreement.
The R.C.M.P. is a highly respected police force with a proud tradition of service to Canada and Canadians. Accusations of harassment or police brutality against its members are infrequent, but the principle which is in issue in these proceedings is of the highest importance, as evidenced by the intervention of eight of the provinces (all except Prince Edward Island and Newfoundland) in support of the validity of the impugned legislation. If constitutional history teaches us anything it teaches that the Fathers of Confederation wished the substantive criminal law to be enacted at the federal level (s. 91(27) of the B.N.A. Act) but the administration of justice within the provinces (s. 92(14) both criminal and civil justice, to be at the local level. And for very good reasons of policy. The maintenance of law and order is inherently of local concern. It is best managed by local officials, sensitive to the needs and idiosyncracies of the community. The Fathers of Confederation recognized that it simply would not do for officials in Ottawa to be enforcing laws throughout the Dominion. The federal Parliament had the power to define the content of the general rules. But the enforcement of the rules requires, at the controls, a hand responsive to local needs.
If the judgement now under appeal stands, the provincial attorneys general are put in the invidious and anomalous position of being ultimately responsible for criminal investigation, arrest and prosecution within their respective provinces, but powerless to discipline, or even investigate, an important element of the force of officers carrying out those duties within the province in the event of allegations by the public of harsh treatment, arbitrary arrest or unwarranted detention by a police officer. Equally important, the citizenry of the province would have final resort to an impartial and independent board if they had complaints against provincial police, but would be denied such recourse if the complaints were against the R.C.M.P.
I
The constitutional question in this appeal, framed by the Chief Justice, is whether it is open to the Province of Alberta to apply its Police Act, 1973, 1973 (Alta.), c. 44, to members of the R.C.M.P. in respect of inquiries into the conduct and performance of duty of those who perform policing and law enforcement functions in the Province.
The facts are brief. Peter Edwards, accompanied by his sister and four other persons, was stopped by an R.C.M.P. car while travelling from Wetaskiwin to Mameo Beach in the Province of Alberta. Constables Putnam and Cramer, at the time on detachment duty at Wetaskiwin, searched the car, car trunk, purses and pockets. They then made Mr. Edwards take down his pants and a skin search, ostensibly for drugs, was made of his body, although according to his complaint, Mr. Edwards had never been involved with drugs. No drugs were found. Mr. Edwards was convinced that the constables had no legitimate reason for stopping him but instead were intent on “hassling” him because he had appealed a decision in another matter.
Mr. Edwards retained counsel who wrote to the Attorney General of Alberta to inquire “whether the R.C.M.P. in question were or were not overstepping the bounds of law enforcement”. Assistant Commissioner Wright, Commanding Officer of “K” Division of the R.C.M.P., wrote in reply that Mr. Edwards had been searched under the authority of the Narcotic Control Act, R.S.C. 1970, c. N-1 and that reasonable and probable grounds existed for the search. The Assistant Commissioner found Mr. Edwards’ complaint not to be justified. The letter concluded with the advice that should Mr. Edwards be dissatisfied with the decision he might appeal in writing within thirty days to the Law Enforcement Appeal Board.
When the appeal came before the Board, counsel for Constables Putnam and Cramer took the position that the Board was without jurisdiction and a motion was launched by them in the Court of Queen’s Bench of Alberta for an order prohibiting the Board from further investigating or hearing and determining the appeal.
The main point in issue is whether the Province of Alberta can validly enact s. 33 of The Police Act, 1973 which inter alia authorizes the Law Enforcement Appeal Board, established under the Act, to hear an appeal from a decision of the Commanding Officer of the R.C.M.P. respecting the conduct of members of the R.C.M.P. while in the course of their duties. The purpose of s. 33 is to provide a statutory complaint procedure for those who feel they have been mistreated by police.
It is necessary to review briefly the precise terms of s. 33. The section provides that complaints respecting the conduct or performance of duty of any member or members of a police force shall be directed in the first instance to the Chief of Police or the Commanding Officer in Alberta of the R.C.M.P., as the case may be, who must cause the complaint to be investigated and then inform the complainant whether all or any portion of the complaint is justified and whether disciplinary action is to be taken. In cases where the Chief of Police or Commanding Officer of the R.C.M.P. has found the complaint not to be justified he must inform the complainant of his right to appeal to the Law Enforcement Appeal Board. The complainant has thirty days within which to lodge an appeal.
Sections 33(8) and (9) provide:
(8) Notwithstanding subsection (1), the Board (a) may, upon its own motion, conduct an investigation respecting any complaint;
(b) shall, upon the direction of the Solicitor General, conduct an investigation into any matter relating to the discipline or conduct of any member or members of a police force.
(9) The chief of police or the Commanding Officer in Alberta of the Royal Canadian Mounted Police, as the case may be, shall, when requested to do so, supply the Board or commission with copies of all investigation reports, statements and correspondence sent and received with respect to a complaint.
In determining an appeal the Board may (s. 33(12))
(a) dismiss the appeal, or
(b) allow the appeal, or
(c) vary the punishment imposed, or
(d) affirm the punishment imposed, or
(e) refer the matter back to the chief of police or the Commanding Officer of the Royal Canadian Mounted Police for review, or
(f) impose punishment in accordance with regulations or rules made under the authority of this Act.
The relevant parts of the section would seem to be those which empower the Board to “dismiss the appeal”, “allow the appeal”, “refer the matter back… for review”. Subsections 33(12)(c) and (d) speak of varying or affirming the punishment; since an appeal lies only when the complaint has been found not to be justified and therefore presumably no punishment has been imposed, the Board could not “vary” or “affirm” a non-existent punishment. Subsection 33(12)(f) speaks of imposing “punishment in accordance with regulations or rules made under the authority of this Act”. There was considerable debate, and confusion, during argument as to the meaning and effect of, and the interplay between, s. 33(12)(f) and s. 1 of Regulation 179/74.
Section 1 of Regulation 179/74 entitled The Municipal Police Disciplinary Regulations, enacted pursuant to The Police Act, 1973, reads: 1. (1) This regulation applies to members of municipal police forces established under the authority of section 18 of The Police Act, 1973.
(2) The disciplinary procedures contained in The Royal Canadian Mounted Police Act (Canada) will apply to members of the Royal Canadian Mounted Police employed in the policing of an urban municipality under an agreement provided for in section 36, subsection (1) of The Police Act, 1973.
It rather appears, as matters now stand, that all that the Law Enforcement Appeal Board could do in respect of a complaint against an R.C.M.P. officer is to dismiss the appeal or allow the appeal and refer the matter back to the Commanding Officer of the R.C.M.P. for review. If this is all that is involved then s. 33 must be regarded as extremely narrow in its operation and a small target for federal attack.
To open the matter up, it was suggested from the bench that for constitutional purposes s. 33(12)(f) contemplated, and therefore we should assume, the passage of disciplinary regulations or rules as affecting the R.C.M.P. I am content to approach the problem on this broader footing.
Before leaving The Police Act, 1973 there is one further provision to which reference might be made, namely, s. 2, which provides:
2. The Lieutenant Governor in Council may, from time to time, authorize the Solicitor General on behalf of the Government of Alberta to enter into an agreement with the Government of Canada for the use or employment in all or any portion of Alberta of the Royal Canadian Mounted Police in aiding in the administration of justice and in carrying into effect the laws of Alberta. [Emphasis added.]
The policing agreements have as their sole purpose the “aiding in the administration of justice”, constitutionally entrusted to the Province and “carrying into effect the laws of Alberta”. On April 7, 1977 an agreement was entered into between the Government of Canada and the Province of Alberta. Article 2 of the agreement reads:
2. Canada shall, for the purposes of this agreement and subject to the terms herein, provide and maintain Pro- vincial Police Services within the Province during the term of this agreement.
“Provincial Police Services” are defined as:
(i) Provincial Police Services—means the aggregate of resources, members and support staff of the Force in the Province employed pursuant to this agreement in the enforcement of the Criminal Code, Provincial Statutes and Municipal By-Laws except resources, members and support staff employed primarily in:
(i) the enforcement of Federal Statutes other than the Criminal Code,
(ii) National Police Service,
(iii) the maintenance of national security,
(iv) providing the security or the protection of Federal Government property,
(v) services provided to or on behalf of Federal Government Departments,
…
Article 3 of the agreement reads:
3. The internal management of the Provincial Police Services, including the administration and application of professional police procedures, shall remain under the control of Canada.
Article 4 is important. The section provides:
4(1) The Commanding Officer of the Provincial Police Services shall for the purposes of this agreement act under the direction of the Solicitor General of Alberta in matters dealing with the operations, broad poli