Attorney General of Alberta et al. v. Putnam et al., [1981] 2 SCR 267

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[1981] 2 S.C.R. 267

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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

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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

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“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.

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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

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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

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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

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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.

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(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

(d) affirm the punishment imposed, or

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(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

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.

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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

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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

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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-

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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.

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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

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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

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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.

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.

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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

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(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.

In determining an appeal the Board may (s. 33(12))

(a) dismiss the appeal, or

(b) allow the appeal, 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:

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1. (1) This regulation applies to members of municipal police forces established under the authority of section 18 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-

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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 policy and functions of the Provincial Police Services. The said Commanding Officer shall for the purposes of this Agreement act under the direction of the Attorney General of Alberta in matters dealing with administration of justice and the enforcement of those laws which the Government of Alberta is required to enforce.

(2) Nothing in this agreement shall be interpreted as limiting in any way the powers of the Attorney General, relating to the administration of justice within the Province.

(3) The Commanding Officer of the Provincial Police Services shall provide the Attorney General of Alberta with information in possession of the Royal Canadian Mounted Police that relates to the administration of justice in the Province. The Com-

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manding Officer shall provide the Solicitor General of Alberta with information in the possession of the Royal Canadian Mounted Police that relates to the operations, broad policy and functions of the Provincial Police Services. The phrase “information” as it appears in this paragraph shall include information obtained by members employed in Federal duties and shall be provided in a manner and form to be mutually agreed upon by the Commanding Officer and the Attorney General of Alberta, and the Solicitor General of Alberta, as the case may be. [Emphasis added.]

Subsections (1) and (2) are of particular relevance as they take cognizance of the constitutional authority of the Province to supervise the provision of police services.

The Provincial Police Services are required, by the terms of the agreement, to perform the normal duties of peace officers and (art. 8(1)) render such services as are necessary to:

(a) preserve the peace, prevent crime and offences against the laws of Canada and the laws in effect in the Province, apprehend criminals and offenders and others who may be lawfully taken into custody;

(b) execute all warrants and perform all duties and services in relation thereto that may, under the laws of Canada or the Province, be executed and performed by peace officers.

On May 24, 1977 an agreement was entered into between the Government of Canada and the City of Wetaskiwin for the provision of Municipal Police Services to the extent of nine R.C.M.P. officers. It is in much the same terms as the provincial agreement.

Section 21 of the Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, 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

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generally for carrying the purposes and provisions of this Act into effect.

(2) Subject to this Act and the regulations made under subsection (1), the Commissioner may make rules, to be known as standing orders, for the organization, training, discipline, efficiency, administration and good government of the force.

Detailed regulations have been made. There are standing orders governing the conduct of all members of the force, covering such a variety of subjects as compliance with orders, use of alcoholic beverages, improper language, betting, personal dress and grooming, saluting, social graces. There are also standing orders in respect of complaints and discipline. These recognize that the good name of the force depends largely on the confidence felt by the public, that a complaint against a member of the force will always be fully and impartially investigated and that if substantiated, redress will follow. The standing orders, recognizing that it is imperative that all complaints made against a member of the force be investigated promptly and impartially, provide for a service investigation into alleged misconduct. Service offences are either major or minor. Major service offences include such matters as refusal to obey the lawful command of a superior in rank or misappropriating public money. Failing to use discretion when using a service revolver or failing to investigate a complaint of theft of cattle are examples of minor service offences. Punishment may be meted out in the form of imprisonment, loss of pay, reduction in rank, reduction in seniority, orders of restitution or dismissal. The Force has its code of acceptable conduct but it is internal. There is no provision in the Royal Canadian Mounted Police Act or regulations or elsewhere other than in the provincial police acts, for review by an external board or tribunal.

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III

It is submitted on behalf of the Attorney General of Alberta that none of the provisions of The Police Act, 1973, in particular s. 33, can be characterized as relating to the internal management of the R.C.M.P. It is said there is no attempt to provide for the discipline of a member of the federal force; rather s. 33 is concerned solely with an investigation into allegations of misconduct by members of the R.C.M.P., a matter of legitimate interest to provincial law enforcement authorities charged with effective and proper policing within the province—a matter that falls under s. 92(14) of the B.N.A. Act, the administration of justice within the province. An independent review of police actions is important because it fosters respect for and confidence in the police—a matter vital to the effective administration of justice. It also enables the Attorney General as the chief law enforcement officer to monitor more effectively the manner in which the R.C.M.P. is performing its provincial policing function. These ends are served by the procedure established under s. 33. This, in short, is the argument of the Attorney General of Alberta.

For the respondents and the Attorney General of Canada (it will be noted that the R.C.M.P. Force, as such, is not a party to the proceedings) it was urged that the R.C.M.P. Force has been duly created by the Parliament of Canada under the Peace, Order and Good Government provisions of the B.N.A. Act, or, alternatively, under s. 91(27) (Criminal Law), and that the Province cannot interfere with the internal operations of the Force. It is said that s. 33 of The Police Act, 1973, does this, and is accordingly ultra vires the Province of Alberta, or at least, inoperative as far as the R.C.M.P. is concerned. The Attorney General of Canada relies largely on the judgment of this Court in Attorney General of the Province of Quebec and Keable v. Attorney General of Canada et al.[6] in support of his position. The Keable case concerned the constitutional validity of an inquiry

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set up by the Quebec Government into certain activities of the R.C.M.P; The majority of this Court held that the provincial government had the power, under s. 92(14) of the B.N.A. Act, to inquire into specific criminal activities of members of the R.C.M.P. 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…” (per Pigeon J. at p. 242). But Pigeon J. held that there was a limit on this provincial power to inquire. The R.C.M.P. was validly established by the Parliament of Canada and no provincial authority may intrude into its management. Therefore the Province of Quebec could not, under the guise of investigating ‘crime in the province’ in fact pursue an inquiry into the administration and management of the Force. “The doctrine of colourability is just as applicable in adjudicating on the validity of a commission’s term of reference or decisions as in deciding on the constitutional validity of legislation” (at p. 242). The Attorney General of Canada contends that s. 33 of The Police Act, 1973 intrudes into the “management or administration of the Force” and thus, on the authority of Keable, is ultra vires the province. I will return later to the Keable case.

It is well established by decisions of this Court that a province is responsible for, and has control and supervision of, law enforcement in the province with respect to provincial legislation and criminal law in the constitutional sense. In Reference Re the Adoption Act[7], at p. 403 Duff C.J. spoke of the responsibility of the provinces as extending to “…the policing of the country, the execution of the criminal law, the suppression of crime and disorder”. In the earlier case, In re Prohibitory Liquor Laws[8], at p. 248, Sedgewick J. said:

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But it is argued that what is called “the police power” is possessed by the provinces under “municipal institutions,” and that the right in question is a mere incident of “the police power”. Now, if by “police power” is meant the right or duty of maintaining peace and order and of seeing that law, all law whether of imperial, federal or local origin is enforced and obeyed, then I agree that that power is wholly with the provinces. But it is with them, however, not because it specially belongs to “municipal institutions,” but because they are charged with the “administration of justice.” The legislatures may delegate this duty to municipal functionaries, but the mode of administration is purely a matter of provincial concern. [Emphasis added.]

More recently, in the Di Iorio case, supra, Mr. Justice Beetz gave the words “administration of justice” a large and liberal interpretation. He stated at p. 223:

Before Confederation, the provinces were in charge of the administration of justice, including criminal justice. It was contemplated by s. 91(27) of the British North America Act, 1867, that criminal law, substantive and procedural, would come under the exclusive legislative authority of the Parliament of Canada. But subject to this provision and to the paramountcy of federal law enacted under primary or ancillary federal jurisdiction, the provinces were to remain responsible in principle for the enforcement of criminal law and to retain such power as they had before with respect to the administration of criminal justice. They continued in fact to police their respective territories, to investigate crime, to gather and to keep records and information relating to crime, to prosecute criminals and to supervise police forces, sheriffs, coroners, fire commissioners, officers of justice, the summoning of juries, recognizances in criminal cases, and the like. [Emphasis added.]

In the Di Iorio case I had occasion to say, at p. 205:

Under head 92(14) of our Constitution, as I understand it, law enforcement is primarily the responsibility of the Province and in all provinces the Attorney General is the chief law enforcement officer of the Crown. He has broad responsibilities for most aspects of the Administration of Justice. Among these within the field

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of criminal justice, are the court system, the police, criminal investigation and prosecutions, and corrections.

In Keable, supra, Mr. Justice Estey wrote a separate opinion concurring with the majority, in which he commented on the scope of s. 92(14). He wrote at p. 257:

In my view, the “administration of justice” authorizes and indeed requires a province to establish, maintain and operate such facilities as may from time to time be necessary and advisable for the proper and effective enforcement of the criminal law.

As the Attorney General of Ontario states in his factum, the conferring of the powers of constables and peace officers and the supervision of persons exercising such powers is of the essence of the enforcement of the criminal law. The power of the provincial Attorney General to administer justice in the province, and to supervise police forces in its exercise, rests upon a specific head of provincial authority. It falls to the provinces to see that the police execute their mandate legally, with due regard for the laws of the province and the civil rights enjoyed by citizens.

As there is so little jurisprudence to guide decision in resolving the question in issue it seems to me that it would be helpful to have regard to history and governmental attitudes. Constitutional interpretation should accord with reality.

Policing was a local matter prior to Confederation. The early history of policing in Upper Canada and in the Atlantic Provinces followed a similar pattern; local police forces under the control of municipalities or justices of the peace. (See generally, Kelley, Policing in Canada (1976), at pp. 6-9).

Following Confederation, the provinces began to supplement these municipal forces with provincial police forces, responsible for law enforcement in the vast unorganized areas of the country. For example, provincial forces were established in

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Quebec and Manitoba in 1871. Eventually, other provinces moved to set up provincial forces.

The federal role in policing the provinces was extremely limited. In 1868, Parliament enacted An Act respecting Police of Canada, 1868 (Can.), c. 73. The first duties of the force consisted of guarding federal buildings in Ottawa and providing body-guards for government leaders. It also carried out ‘secret service’ work in connection with the Fenian threat from the United States. In 1878, ten years after its formation, the Dominion Police consisted of seventeen men. Over the years, its duties were expanded to include the guarding of the navy yards at Halifax and Esquimalt and the enforcing of certain specific laws such as those against counterfeiting (the federal government regarded this as its responsibility under ‘banking’) and the white slave traffic.

In 1873, the federal government established the North West Mounted Police to aid in the development of the territory purchased from the Hudson’s Bay Company (An Act respecting the Administration of Justice, and for the establishment of a Police Force in the North West Territories, 1873 (Can.), c. 35, ss. 10 to 35). The duties of the force were limited to the North West, outside the boundaries of any province, although s. 35 did provide for the possibility of a contractual arrangement with the Province of Manitoba whereby the force could aid in “the administration of justice in that Province and in carrying into effect the laws of the Legislature thereof…”

It was considered at the time that the Mounted Police were not to be used for enforcing laws within the province. This was made clear by Sir John A. Macdonald in 1873 in a letter to the Lieutenant Governor of Manitoba, Alexander Morris. Morris had requested that the newly formed federal police force be sent to Manitoba to assist the province in establishing law and order in the wake of the Riel uprising of 1869-70. Macdonald replied as follows:

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I have been telegraphing you about the Mounted Police. You say they are urgently required. Now I cannot well understand that. The Mounted Police are not be used, and cannot be used as a municipal police force for ordinary legal purposes in Manitoba; they can only be used beyond the bounds of Manitoba to protect the Frontier and to prevent collisions between unfriendly Indians. Now there is no likelihood of a war between Indians during the winter. [Macdonald Papers, Letter Book 20, September 10, 1873.]

It is clear that the enforcement of criminal law in the province rested entirely with the provinces in the years following Confederation.

With the establishment of the provinces of Alberta and Saskatchewan in 1905 it was recognized that responsibility for the policing of these areas would devolve to the provinces as part of the “administration of justice” and no longer be a responsibility of the Mounted Police. Commissioner Perry of the R.C.M.P. wrote in his Annual Report for 1905 that, “This force has largely completed the work for which it was created” (at p. 1). The Prime Minister, Laurier, wrote to the Premiers of the new provinces, announcing that he was sending officials who would negotiate the transfer of the responsibilities handled by the North West Mounted Police:

“particularly in relation to the administration of justice and the maintenance of prisoners… We at Ottawa are anxious to meet you in as generous a spirit as may be found possible, but you must gradually, if not immediately, accept the natural and constitutional heritage of all Provinces, and pay the cost thereof.” [Laurier to Premiers Scott and Rutherford, 7 February 1906, Public Archives of Canada, RG 18, A-1, vol. 528, no. 108.]

Negotiations between the governments produced an agreement whereby the Mounted Police could continue under contract. Privy Council Order 932 passed by the Governor General in Council on May 21, 1906, provided that the Police were to remain a Dominion Force entirely under the control of the Dominion Government, “except in matters relating to the administration of justice, in connection with which the Commissioner will act in accordance with the wishes and under the direc-

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tion of the Attorney General of the province interested”.

It is instructive to note what was regarded as being included in the phrase “administration of justice”. The R.C.M.P. took direction from the provincial attorneys general in matters relating to the enforcement of provincial statutes as well as the federal criminal law. The working relationship is summarized by the Commissioner in his Annual Report of 1920:

The creation of the new provinces (Alberta and Saskatchewan) brought about an important change. The Department of Justice had hitherto administered the criminal law and now the duty fell to the Attorneys General of the provinces. A temporary arrangement was entered into between these provinces and the Dominion whereby for a small annual payment by the provinces, the Dominion government agreed to maintain the force as before except that in the administration of the criminal law the Attorneys General exercised their rights, powers and authority.

These contractual arrangements came to an end during the war of 1914-1918. In 1919, the federal government passed legislation which amalgamated the North West Mounted Police with the small Dominion Police; the new force was to be a general police force to enforce law throughout the Dominion, including the province (An Act to Amend the Royal Northwest Mounted Police Act, 1919 (Can.), c. 69.) In 1922, J.S. Woodsworth objected to the constitutionality of this legislation. He moved that:

…the activities of the Royal Canadian Mounted Police should be confined to Territories not included in any Province of Canada. [House of Commons Debates, April 10, 1922, at p. 829.]

The Minister of Militia and Defence, the Honourable George Graham, acknowledged that constitutionally Mr. Woodsworth was correct. He defended the federal legislation on the ground that practical considerations must sometimes override the law:

Speaking technically, on absolutely legal or constitutional grounds, my hon. friend is right that the provinces

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ought to look after the maintaining of order within their several territories… I agree that constitutionally my hon. friend is absolutely right, but in working out the affairs, particularly of a new country, we are not always safe in adhering to the letter of the constitution. Sometimes we have to violate almost the letter of the law, in order to be practical. [House of Commons Debates, April 10, 1922, at p. 831.]

As a practical matter, however, the constitutional problems raised by Mr. Woodsworth did not arise. While the Royal Canadian Mounted Police Act formally granted the Force the power to enforce all federal law, in practice the enforcement of criminal law remained a provincial responsibility. The R.C.M.P. was concerned chiefly with the enforcement of federal laws other than the Criminal Code. The Force concentrated on the enforcement of three statutes in particular, the Customs Act, the Inland Revenue Act and the Opium and Narcotic Drugs Act. The Force engaged in criminal work only when the Dominion Government was the aggrieved party or the offence took place on federal property. (See Horral, The Pictorial History of the RCMP, at pp. 185-87.)

In 1928, the R.C.M.P. returned to provincial policing under a contract with the Government of Saskatchewan. In 1932 similar agreements were reached with all the remaining provinces except Ontario, Quebec and British Columbia. British Columbia authorized the R.C.M.P. to undertake provincial policing in 1950.

These contracts continue to reflect the basic responsibility of the provincial attorneys general for the enforcement of criminal law.

In my opinion, the historical record in this matter is unequivocal and persuasive. The responsibility for providing a police force to maintain public order and enforce the criminal law has, since before Confederation, been a local matter under local control. Federal forces have played a role only in instances where they received explicit authorization from the province concerned. Even in provinces which have entered into contractual

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arrangements with the R.C.M.P., the continuing primary responsibility of the local government for policing has been reflected in the payment of compensation to the federal government. In fine, policing of the criminal law is a central ingredient of the phrase “Administration of Justice in the Province”.

The Attorney General of Canada, recognizing the constitutional obligation of the province to enforce criminal justice, and providing a policing service to assist the provincial attorney general in carrying out that responsibility, nevertheless would deny the provincial attorneys general any constitutional voice in the manner in which that service is delivered. The original conception of local control of policing within the provinces has been largely replaced by a federal police “enclave” completely insulated, it is argued, from provincial control.

A number of the provincial submissions proceeded on the basis that the substance of s. 33 of The Police Act, 1973 was “investigatory” only and for that reason could not be said to interfere with internal management. It was conceded by others that if s. 33 could be said to give the province the right to discipline, this would be a matter of internal management. With respect, I do not agree with either position. I do not think the section lends itself to the interpretation that all that is contemplated is an investigation, the conclusion of which brings an end to the matter. In my view the province has constitutional authority to discipline, in the limited manner later indicated, all police officers engaged in administering justice within the province. And, I am equally of the view that in so doing the province is not interfering with the “internal management”, as those words should be properly understood, of either municipal forces or the R.C.M.P.

Chief Justice McGillivray, delivering the judgment of the Alberta Court of Appeal, said, in what is the crux of his judgment:

To my mind, the effect of allowing an Appeal from a Commanding Officer’s decision that a complaint was

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not justified is to interfere with the internal management of the Royal Canadian Mounted Police. To have a Commanding Officer find that a complaint was not justified, and then to have the Board find that it was, seems to me to result in an impossible situation, which would bring the Force into disrepute and which would affect the morale of the personnel of the Force.

With great respect, I do not agree. There is nothing in the record to support the view expressed by the Court of Appeal. No one has come forward from the R.C.M.P. to say that the implementation of s. 33 of The Police Act, 1973 would create an “impossible situation” for the Force and its members: Does The Police Act, 1973 create “an impossible situation” for the municipal forces of Alberta who are, beyond doubt, subject to its terms?

Public accountability is increasingly being demanded of, and recognized by, those institutions and corporations which affect in a direct and important way, the daily lives of our citizens. One sees this in respect of government, large corporations, the professions. No longer is it acceptable to have vital matters affecting the public decided behind closed doors. The dynamics of decision making and accountability have changed. The result, of course, is to engender confidence in the decision making process and in the institutions whose decisions are subject to scrutiny. In my view the surest way of undermining public confidence in the Force and in justice in general would be to place the R.C.M.P. in a cocoon, and exempt the actions of its members from investigation by an independent tribunal.

The Court of Appeal in the passage quoted above expresses concern for the Force and members of the Force, but ignores two essential components of any balancing process, first, the public interest served by external review of internal police disciplinary procedures and second, the position of provincial attorneys general who, if the Court of Appeal is correct, have responsibility for policing within the province but no means of assuring any

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measure of public accountability from a large segment of those engaged in policing within the province.

Elsewhere in the reasons of the Court of Appeal the following passage appears:

Apart, however, from these Sections which deal with a complaint, it is to be observed that Subsection 7 and Subsection 8 of Section 33 permit the Board on its own motion to conduct an investigation respecting any complaint, and upon the direction of the Solicitor General, to conduct an investigation into any matter relating to the discipline or conduct of any member of a police force. It would seem to me that these provisions, when applied to the Royal Canadian Mounted Police force, certainly involve an inquiry into what is internal management of the Force.

Again, with respect, I do not agree. In the first place the passage seems to run counter to what was said elsewhere in the judgment:

Then, by Subsection (9) the Commanding Officer in Alberta of the Royal Canadian Mounted Police is required, when requested to do so, to supply the Board “with copies of all investigation reports, statements and correspondence send [sic] and received with respect to a complaint”. Counsel for Alberta says that this does not involve the internal management of the Royal Canadian Mounted Police—it simply relates to the facts surrounding what happened as between the complainant and the officer in question. It seems to me that all these positions taken by the Province are sound.

It is common ground that there is no constitutional impediment to the investigation by the province, and prosecution, of any member of the R.C.M.P. charged with a criminal offence. This might well entail investigation within the Force, including the production of information and documents. We have therefore a situation, grounded neither in principle nor logic, under which the province can carry out an investigation within the Force in respect of the more serious conduct of one of its members but denied that right in respect of less serious conduct.

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VII

I return now to Attorney General of the Province of Quebec and Keable v. The Attorney General of Canada et al., supra, which, in the view of the respondents, virtually determines this appeal. I do not share that opinion. The two cases are antipodal. In Keable the Commissioner sought to investigate the internal workings of the R.C.M.P. at the highest level, including the security service. That was the purpose of this aspect of the inquiry. The Inquiry Commissioner wanted, among other things, to look into the “frequency” of the “methods used” by the R.C.M.P. in Quebec. He contended that his mandate empowered him to make recommendations for changes in the regulations and practices of the Force. The concern was not with individuals but with the institution as such. That is a very different situation from the case at bar, where any inquiry into the workings of the R.C.M.P. would only be incidental to inquiry in relation to the impugned conduct of a particular individual officer.

It will be recalled that in Keable the proceedings were instituted by a motion to a judge of the Superior Court of Quebec for the issuance of a writ of evocation against Jean Keable in his capacity of Commissioner, appointed under the Public Inquiry Commission Act of the Province of Quebec, R.S.Q. 1964, all. It was alleged that the subject matter of the inquiry being related to the administration of the R.C.M.P. was beyond the scope of provincial powers. The Commissioner, Mr. Keable, had issued subpoenas to the Solicitor General of Canada and rendered decisions requiring the Solicitor General to produce a number of documents pertaining to the administration of the R.C.M.P.

The Commissioner’s terms of reference included investigation and report on the circumstances surrounding a search during the night of October 6 and 7, 1972 at 3459 St. Hubert Street in Montreal; the illegal entry made in January 1973 into premises in which computer tapes were kept, containing a list of members of a political party; setting fire to a farm in Sainte-Anne-de-la-

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Rochelle on May 9, 1972, and a theft of dynamite in the spring of 1972.

The Commissioner served a subpoena in which, in sixteen detailed paragraphs, he called for all files and documents in the possession of the R.C.M.P. in respect of the alleged illegal conduct. Paragraph 17 of the subpoena called upon the Solicitor General of Canada to produce:

17.—All instruction manuals as well as all written instructions, administrative policies and documents in effect during October 1972, and any amendments, concerning:

a) All rules respecting the operation of the R.C.M.P.’s Security Service;

b) The opening, keeping, disposal and/or destruction of any file, document or daily notebook for members of the R.C.M.P.;

c) The conducting of all police operations, including investigations, searches, electronic eavesdropping, shadowing, surveillance and so on;

d) The rules of ethics of the members of the R.C.M.P.;

e) The pattern of authority among the members of different levels of the R.C.M.P.;

f) List of all cases where reports must be made by members to their superiors;

g) List of all cases where an authorization is required by superior officers;

h) The functioning of a joint operation among different police forces, particularly in the case of operations taking place on the territory of the Montreal Urban Community where the R.C.M.P., the Quebec Police Force and the Montreal Urban Community Police Department are all involved at the same time;

i) The operation of internal communications, including the operation of the Telex system;

II—The originals of any files or documents, not specifically mentioned in this request, but which you believe would be useful for the work of the Commission under its mandate, and in particular any documents in any file whatsoever that might reveal the existence (and) use of methods similar to those that are the

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subject of this investigation and/or that might reveal the frequency of use of such similar methods.

On November 11, a further subpoena was served upon the Solicitor General with an amended list of documents. There were also within a few days, further subpoenas covering three long lists. An affidavit submitted to the Commissioner by the Solicitor General included the following statements:

8. I know and in fact believe that the documents and files mentioned in paragraph 7 above and in the attached Appendix were prepared and are kept in the strictest secrecy, as part of current and ongoing investigations in all regions of Canada into matters of extreme importance for national security.

9. To allow any of the documents mentioned in paragraph 7 and the attached Appendix to be produced, or the contents of any one of them to be disclosed in testimony, would seriously jeopardize the effectiveness of the current and ongoing investigations being carried out by the R.C.M.P.’s Security Service, and might thwart the operations being conducted by the R.C.M.P.’s Security Service in accordance with the mandate it has been given by the Government of Canada.

Following further representations and proceedings, the Commissioner issued a decision on December 5, 1977 which reads in part:

ORDERS the Solicitor General of Canada, under all penalties provided for by the Act, to give it the said files and documents on December 12, 1977 at 2:00 p.m. in room 5.15 of the Courthouse, 1 Notre Dame Street East, in Montreal.

The motion for a writ of evocation included the following main allegations:

26. Moreover, respondent Keable is giving his mandate an unconstitutional interpretation, which is ultra vires the powers of the Quebec Legislature, in that he is inquiring into and intends to inquire into the following subjects:

(a) the operating rules of the R.C.M.P.’s Security Service;

(b) the Security Service organization, including the pattern of authority among the various levels;

(i) technical or electronic sources;

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(ii) human sources, recruiting, informing and payment;

(iii) searches;

(iv) interviews with subjects of interest;

(v) infiltration;

(vi) surveillance and shadowing;

(d) the system of classifying files on individuals and the movements of and rules governing the management of the files;

(e) the operation of internal communications and communications among the various police forces;

(f) internal disciplinary investigations, and in particular the investigation conducted by superintendent Nowlan during June 1977;

(g) the relations between the Commissioner of the R.C.M.P. and the Director General of Security and senior officials of the Solicitor General’s Department, the Prime Minister of Canada’s Office, the Cabinet, the Solicitor General of Canada, the Prime Minister of Canada and the Cabinet Committee on Security;

(h) the kidnapping of James Cross, the kidnapping and assassination of Pierre Laporte, the visit of Cohn Bendit to Canada, an alleged escape plot in 1972, an alleged airplane hijacking plot in 1972 and other subjects related to the 1970 October crisis and the acts of terrorism between 1963 and 1973;

(i) interception of mail for purposes of counter-espionage or anti-subversion;

…

31. The inquiry conducted by respondent may lead to breaches of the Official Secrets Act by the witnesses, and confronts members and former members of the R.C.M.P. with multiple and contradictory obligations: the obligation to give answer to respondent, the obligation under the R.C.M.P. Act and the obligations under the Official Secrets Act;

32. The inquiry conducted by respondent encroaches upon the function of the federal commission of inquiry into the R.C.M.P.’s Security Service, negates the precautions for confidentiality taken by the federal government in the direction of this commission, and in general this investigation conducted by respondent usurps the authority and functions of a commission validly created by the Governor in Council in the exercise of his mandate.

The key question, when the matter came before this Court, concerned the constitutional right of a provincially appointed commission investigating alleged “criminal or reprehensible” acts to inquire into: a) the federal institution, namely the Royal

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Canadian Mounted Police; b) the rules, policies and procedures governing the members of the institution who are involved; c) the operations, policies and management of the institution; d) the management, operations, policies and procedures of the security service of the Royal Canadian Mounted Police. The answer was clear. Note the exhaustive nature of the investigation of the R.C.M.P. as a federal institution contemplated by Mr. Keable. He sought to inquire into the operations, policies and management of the institution qua institution. He sought to go even further and investigate the management operations, policies and procedures of the Security Service. Contrast that with the modest scope of The Police Act, 1973 of Alberta. Its interest is in the individual, not in the institution as such. Its concern is with an R.C.M.P. member in the course of his duty and his treatment or mistreatment of a member of the public.

In Keable, Mr. Justice Pigeon drew a distinction (at p. 243) between (i) an inquiry into criminal acts and (ii) an inquiry into “the methods used by the police forces” or an inquiry which had as its purpose the making of recommendations for changes in the regulations and practices of the Force. If (ii) can be regarded as forbidden ground I confess that I can find nothing in The Police Act, 1973 expressly or colourably approaching it.

With due respect for the contrary opinion, I do not think s. 33 of The Police Act, 1973 constitutes an attempt on the part of the Province of Alberta to manage, govern, superintend or control the federal police organization known as the R.C.M.P.

I do not think there would be any constitutional breach on the part of the province if arguendo it asserted the right to discipline through, for example, the imposition of a fine, a member of the R.C.M.P. who acted brutally in his treatment of an accused person. Obviously a Board could not demote or dismiss from the service an R.C.M.P. member who misconducted himself but I know of no reason why he should not, in a proper case, be required, for example, to make a financial pay-

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ment to a person aggrieved as an amend. It should also be within the power of the province to say to an R.C.M.P. officer who has acted vis-à-vis a member of the public in such a way as to bring policing and the administration of justice in the province into disrepute that he shall not be entitled to act as a peace officer during a stated period of suspension. Neither of these forms of discipline strikes at the heart of the R.C.M.P. as an institution or intrudes on the internal management or methods of the Force.

The submission of the respondents amounts to this: valid provincial legislation in relation to the administration of justice in a province cannot be applied to a member of the R.C.M.P. for the sole reason that he is an employee of the federal Crown. The R.C.M.P. constitutes a federal ‘enclave’ within the Province of Alberta. I cannot accept this argument. A central canon of constitutional interpretation is the ‘pith and substance’ doctrine; a law “in relation to” a provincial matter may validly “affect” a federal matter. To grant federal employees immunity from valid provincial laws of general application would run counter to this fundamental principle of interpretation. Mr. Justice Beetz in Construction Montcalm Inc. v. The Minimum Wage Commission[9] was faced with a similar federal argument. Here it was suggested that provincial law could not apply on federal Crown lands. Mr. Justice Beetz, speaking for the majority, rejected the submission in unequivocal terms at pp. 777-78:

In its second submission, Montcalm contends that provincial law does not apply on federal Crown lands. Again I disagree. The exclusive power of the Province to make laws in relation to property and civil rights under s. 92(13) of the Constitution is territorially limited only by the words “in the Province”, and Mirabel is located in the Province. The enumeration of exclusive federal powers in s. 91 of the Constitution, including the power to make laws in relation to the public debt and property, operates as a limitation ratione materiae upon provincial jurisdiction, not as a territorial limitation. The impugned provisions relate neither to federal property nor to any other federal subject but to civil rights and, in

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my view, they govern the civil rights of Montcalm and its employees on federal property. Federal Crown lands do not constitute extra-territorial enclaves within provincial boundaries any more than indian [sic] reserves.

Beetz J.’s mention of Indian reserves is a reference to the earlier judgment of this Court in Cardinal v. The Attorney General of Alberta[10]. In Cardinal, the issue was whether provincial gaming laws applied to Indians hunting on a reserve. The majority of the Court held that the provincial laws did apply. Martland J., speaking for the majority at p. 703, rejected the ‘enclave’ theory:

A Provincial Legislature could not enact legislation in relation to Indians, or in relation to Indian Reserves, but this is far from saying that the effect of s. 91(24) of the British North America Act, 1867, was to create enclaves within a Province within the boundaries of which Provincial legislation could have no application. In my opinion, the test as to the application of Provincial legislation within a Reserve is the same as with respect to its application within the Province and that is that it must be within the authority of s. 92 and must not be in relation to a subject-matter assigned exclusively to the Canadian Parliament under s. 91. Two of those subjects are Indians and Indian Reserves, but if Provincial legislation within the limits of s. 92 is not construed as being legislation in relation to those classes of subjects (or any other subject under s. 91) it is applicable anywhere in the Province, including Indian Reserves, even though Indians or Indian Reserves might be affected by it. My point is that s. 91(24) enumerates classes of subjects over which the Federal Parliament has the exclusive power to legislate, but it does not purport to define areas within a Province within which the power of a province to enact legislation, otherwise within its powers, is to be excluded.

There are certain cases which suggest that a federal undertaking cannot be ‘sterilized’ or ‘mutilated’ by provincial legislation. (See Commission du Salaire Minimum v. The Bell Telephone Company of Canada[11]. These cases are irrelevant to the present appeal. The Alberta Police Act, 1973

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does not purport to limit or control the R.C.M.P. within an area of federal responsibility. The Act is limited to an area within exclusive provincial responsibility—i.e. the “Administration of Justice in the Province”. There can be no ‘sterilization’ of the R.C.M.P. by subjecting it to provincial control in the execution of its general police functions in the province.

VIII

The Court of Appeal of Alberta held that the Province could not interfere with the internal operations of the R.C.M.P. by investigation of citizen complaints. The reason—“because the Federal legislation and regulations passed under it are paramount, and not because of the nature of the offence being investigated by the officers of the Federal Force”. The Court thus applied its view of the doctrine of paramountcy, at the same time rejecting the notion that the conduct of Constables Putnam and Cramer would be immune from provincial investigation because the offence allegedly being investigated was one under a federal statute, the Narcotic Control Act.

Once it is determined that a provincial law is in relation to a matter within the class of subjects enumerated in s. 92 of the B.N.A. Act, the provincial law is valid. If, however, a valid provincial law is inconsistent with a valid federal enactment, then the doctrine of paramountcy intervenes to render the provincial law inoperative to the extent of the inconsistency. The test of inconsistency is whether there is an express contradiction between a federal and a provincial enactment. The doctrine is not engaged in a case where the Federal Government has ‘occupied the field’; that is, simply because the federal Parliament has enacted a rule on a particular topic does not preclude the province from enacting a rule on the same topic. There must be a direct contradiction between two laws in the sense that “compliance with one law involves breach of the other”. The test was expressed by Mr. Justice

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Martland in Smith v. The Queen[12] in these words at p. 800:

The fact that both provisions prohibit certain acts with penal consequences does not constitute a conflict. It may happen that some acts might be punishable under both provisions and in this sense that these provisions overlap. However, even in such cases, there is no conflict in the sense that compliance with one law involves breach of the other. It would appear, therefore, that they can operate concurrently.

The express contradiction test was reaffirmed in Construction Montcalm Inc. v. Minimum Wage Commission, supra, by Mr. Justice Beetz at p. 780:

Montcalm’s third submission cannot succeed unless the impugned provisions are in conflict with the Fair Wages and Hours of Labour Act: Ross v. Registrar of Motor Vehicles. Here again, it was incumbent upon Montcalm to establish that it could not comply with provincial law without committing a breach of the federal Act. Montcalm did not even attempt any such demonstration. It argues in its factum that the federal Act provides not only for wages but also for overtime, unfair labour practices, etc., and that, in several instances, such provisions “may” differ from those of provincial law. This is not good enough. Montcalm had to prove that federal and provincial law were in actual conflict for the purposes of this case. It did not so prove.

Reference might also be made to what was said by Judson J. in O’Grady v. Sparling[13], at p. 811:

Nor do I think that it can be said to be inoperative because it is in conflict with s. 221 of the Criminal Code. There is no conflict between these provisions in the sense that they are repugnant. The provisions deal with different subject-matters and are for different purposes… Even though the circumstances of a particular case may be within the scope of both provisions (and in that sense there may be an overlapping) that does not mean that there is conflict so that the Court must conclude that the provincial enactment is suspended or inoperative…

Is there an express contradiction between The Police Act, 1973 and the Royal Canadian Mounted Police Act and regulations? The latter establish a series of offences and a method of enforcement

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or ‘discipline’. Whenever it appears that an officer has committed a service offence, the Commanding Officer of the detachment shall investigate (s. 31). If it appears that a major service offence has been committed, the matter is to be referred to the Commissioner, who will determine whether a trial should be held on the offence (s. 32(2)). If it appears that a minor service offence has been committed, the Commanding Officer may himself decide to try the member and cause a written charge to be prepared (s. 32(1)). The procedure governing trial of service offences is set down in ss. 34 to 40 of the Act.

Section 41 grants a right of appeal to a “member who has been convicted of an offence”. The appeal is to the Commissioner who may quash the conviction, dismiss the appeal, reduce the punishment or order a new trial. No appeal is provided in the case of an acquittal at a trial of a service offence.

The respondents contend that these provisions of the Act render the provincial legislation in this case inoperative. It is argued that “Parliament has enacted valid legislation occupying the same field for the same purpose and in the same aspect i.e. the handling of complaints against R.C.M.P. members concerning their conduct or performance of duty”.

I do not think this can be right. In the first place, the object of the provincial Police Act, 1973 is quite different from that of the federal legislation. The disciplinary procedures established under the Royal Canadian Mounted Police Act are directed towards the enforcement of a certain code of conduct, as defined in the Act. The legislation is only concerned with officers who have committed “service offences”, not with general relations between the R.C.M.P. and the public at large. The legislation is directed towards the internal management of the Force.

By contrast, The Police Act, 1973 is not concerned with the matter of ‘service offences’. Rather it is directed towards complaints respecting

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the conduct or performance of duty of any member of a police force. The Act directs that these complaints be investigated, regardless of whether they amount to a ‘service offence’. The object here is not internal management of the R.C.M.P. or enforcement of the code of conduct defined in the Royal Canadian Mounted Police Act. Rather, the concern is with the general relationship between the police forces in the province, including the R.C.M.P., and the public at large.

The provincial enactment serves bona fide ends not otherwise secured and which do not conflict with the federal statute.

In any case, even if the objects of the two enactments were identical, there is no contradiction between them. The Royal Canadian Mounted Police Act provides a narrow right of appeal in a case where an officer is convicted of a service offence. In The Police Act, 1973, however, a ‘complainant’ may appeal the decision of the Commanding Officer that a complaint was not justified. The two rights of appeal are complementary not contradictory. The Royal Canadian Mounted Police Act ensures that an officer convicted of a service offence has a right of redress before being punished. The Police Act, 1973 provides a citizen who is dissatisfied with the decision of the Commanding Officer with the opportunity for an independent review of the matter by an Appeal Board appointed by the Province. There is not even any overlap between these two appellate structures, much less direct contradiction.

With great respect for the Alberta Court of Appeal I do not think the doctrine of paramountcy has any application in the circumstances. The Royal Canadian Mounted Police Act and regulations are not in conflict with s. 33 of The Police Act, 1973 and s. 33 is not rendered inoperative by reason of federal paramountcy. Both the purpose of and the procedure in the federal and provincial legislation is different. There is no inconsistency between the two enactments. I conclude that the provincial legislation is operative as well as valid.

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It is common ground that the complaint against constables Putnam and Cramer arose out of their alleged harassment of the complainant during a narcotic investigation. In Hauser, supra, a majority of this Court held that the Narcotic Control Act was enacted pursuant to Parliament’s authority to enact law for the “Peace, Order and good Government of Canada”. It was also decided that Parliament had authority to enforce laws which did not rely on s. 91(27) (criminal law power) for their constitutional validity. The issue of whether Parliament could also enforce criminal law was left open by the majority. This characterization of the Narcotic Control Act was affirmed recently in R. v. Aziz[14]. In short, it is now beyond question that Parliament may provide for the enforcement of the Narcotic Control Act. It is argued that this appeal falls to be decided on the narrow ground that a province cannot exercise control over R.C.M.P. officers in the enforcement of “non-criminal statutes” such as the Narcotic Control Act.

The acceptance of this submission entails certain curious results. It would mean that constitutional responsibility for a given R.C.M.P. officer would fluctuate constantly. If the officer was involved in enforcing criminal law, then he would be answerable to the Attorney General of the province. If, on the other hand, he was told to investigate the breach of a non-criminal federal statute, constitutional authority would pass to the federal government. Jurisdiction would thus depend on the actions which the officer was performing at any given moment in time.

The drafters of the policing contracts have recognized that such a situation is both imprecise and unworkable in practice. These contracts define jurisdiction in terms of the “dominant” aspect of the work undertaken by a given officer. Thus if resources or officers are “employed primarily in: (i) the enforcement of Federal Statutes other than the Criminal Code”, then they are excluded from

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the definition of “Provincial Police Services”. (See article 1(i) of the Policing Agreement Between Alberta and Government of Canada.) This flexible definition recognizes that certain officers may from time to time be called upon to enforce provincial enactments of the Criminal Code; such occasional duties do not thereby subject them to provincial control. In like fashion, officers whose primary duties involve the enforcement of provincial law and the Criminal Code may occasionally be called upon to enforce a non-criminal federal statute; these officers remain part of ‘provincial police services’ and subject to provincial supervision.

This practical division of responsibility is preferable to the technical and unworkable approach urged by the respondents. In my view, provincial control over the “administration of justice in the province” extends to R.C.M.P. officers who are engaged primarily in the enforcement of provincial enactments and the federal criminal law. It follows that in this case, the fact that constables Putnam and Cramer happened to be investigating a possible breach of the Narcotic Control Act is irrelevant for constitutional purposes. These officers were part of the “municipal police services” for the City of Wetaskiwin employed primarily in the enforcement of the criminal law and provincial law. As such, they remain subject to the constitutional authority of the provincial Attorney General as recognized in the policing agreement between the city and the federal government (see article 1(i) of Contract between Canada and City of Wetaskiwin, May 24, 1977).

One minor matter remains. It relates to the contract of May 24, 1977 between the city and the federal government. It might be argued that, while the province could constitutionally apply its Police Act, 1973 to the R.C.M.P., it had effectively contracted away this right. This argument would be based on article 2 of the contract, which provides that:

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The internal management of the Municipal Police Services including the administration and application of professional police procedure shall remain under the control of Canada.

Such an issue, of course, is not a constitutional issue at all. It does not challenge the vires of The Police Act, 1973. It simply alleges that the passage of the Act amounted to a breach of contract. The constitutional question posed to the Court does not, strictly speaking, require an answer to the contract argument. In the interests of clarity, however, I would hold that s. 33 of The Police Act, 1973 does not violate the contract between the parties.

I would allow the appeal and set aside the judgment of the Court of Appeal of Alberta and the order of prohibition of Mr. Justice Miller, without costs to any party in any court.

Appeal dismissed, DICKSON J. dissenting.

Solicitors for the appellants: R.W. Paisley and William Henkel, Edmonton.

Solicitors for the respondents: Shortreed, Shoctor, Edmonton.

Solicitor for the intervener the Attorney General of Canada: Roger Tassé, Ottawa.

Solicitor for the intervener the Attorney General of British Columbia: The Attorney General of British Columbia, Victoria.

Solicitor for the intervener the Attorney General for Saskatchewan: The Attorney General for Saskatchewan, Regina.

Solicitor for the intervener the Attorney General of Manitoba: The Attorney General of Manitoba, Winnipeg.

Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.

Solicitor for the intervener the Attorney General of Quebec: Henri Brun, Sainte-Foy.

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Solicitor for the intervener the Attorney General for New Brunswick: The Attorney General for New Brunswick, Fredericton.

Solicitor for the intervener the Attorney General of Nova Scotia: Martin B. Herschorn and Kenneth W. Fiske, Halifax.

[1] [1980] 5 W.W.R. 83.

[2] [1979] 1 S.C.R. 218.

[3] [1978] 1 S.C.R. 152.

[4] [1979] 1 S.C.R. 984.

[5] [1956] S.C.R. 154.

[6] [1979] 1 S.C.R. 218.

[7] [1938] S.C.R. 398.

[8] (1895), 24 S.C.R. 170.

[9] [1979] 1 S.C.R. 754.

[10] [1974] S.C.R. 695.

[11] [1966] S.C.R. 767.

[12] [1960] S.C.R. 776.

[13] [1960] S.C.R. 804.

[14] [1981] 1 S.C.R. 188.

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Attorney General of Alberta et al. v. Putnam et al., [1981] 2 SCR 267

Citations[1981] 2 S.C.R. 267

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[1981] 2 S.C.R. 267