The appellant was at all material times a Constable of the Royal Canadian Mounted Police. On August 21, 1981, one Donald Kerr was brought to the R.C.M.P. detachment in Yorkton, Saskatch‑ ewan for a breathalyzer test. Kerr was taken into a room where he met the appellant.
The appellant started to question Kerr concerning the incident giving rise to his arrest. He asked Kerr who was driving the car at the time. Kerr indicated that his sister was driving. The appellant suspected he was lying. He repeated the question a couple of times, receiving the same response each time. The appellant then grabbed Kerr, who was seated in a chair at the time, by the throat and pushed him against a wall. The grab around the throat was sufficient to cause a choking sensation to Kerr.
After a few seconds the appellant questioned Kerr again as to who was driving the car. Kerr continued to maintain that his sister was driving. The appellant slapped Kerr across the face with his open hand and repeated the question. Kerr gave the same answer. However, after three or four slaps Kerr admitted that he had been driving the car. At no time did Kerr respond physically to the appellant's slaps. The defence has admitted, on these facts, that the appellant committed a common assault as defined in the Criminal Code. As a result of the assault Kerr suffered a sore throat, a ringing in his ears, and several minor marks on his face.
Two charges were laid following this incident. On August 21, 1981 the appellant was charged with common assault contrary to s. 245(1) of the Criminal Code, R.S.C. 1970, c. C‑34. The appellant was also charged under the Royal Canadian Mounted Police Act as follows:
That at or near Yorkton, in the Province of Saskatchewan, on the 21st day of August, 1981, that you were unnecessarily violent towards a prisoner, to wit: Donald Kerr, by forcibly grabbing him and slapping him in the face, contrary to Section [sic] (L), Section 25 of the Royal Canadian Mounted Police Act.
On June 2, 1982 the appellant appeared before Inspector S. G. Wilcox of the Royal Canadian Mounted Police Service Court for trial of the charge laid under the Royal Canadian Mounted Police Act. The appellant was found guilty of a "major service offence" under s. 25(l) of that Act. The section reads as follows:
Section 11 of the Charter reads as follows:
...
(l) is cruel, harsh or unnecessarily violent to any prisoner or other person;
...
is guilty of an offence, to be known as a major service offence, and is liable to trial and punishment as prescribed in this Part.
The maximum penalty imposed by s. 36(1) of the Act for such an offence is imprisonment for one year. The appellant was assessed a fine of $300.
On February 2, 1983 the appellant appeared before His Honour Judge Meagher of the Saskatchewan Provincial Court for trial of the charge of common assault under s. 245(1) of the Criminal Code. His counsel submitted that it would be improper to proceed with this charge following the conviction under the Royal Canadian Mounted Police Act since this would violate the accused's right under s. 11(h) of the Charter not to be tried and punished twice for the same offence. The trial judge accepted this submission and quashed the information pursuant to s. 24(1) of the Charter. He held that both the proceeding before the service tribunal and the proceeding before the criminal court were penal in nature‑‑both involved a trial for an alleged "offence" and a possible term of imprisonment following a determination of guilt. In his view, if punishment were meted out in each case, the appellant would be punished twice for the same offence.
The Crown appealed to the Court of Queen's Bench for Saskatchewan. On July 5, 1983 that Court allowed the appeal. Kindred J. held that the trial judge had erred in law in holding that the conviction under the Royal Canadian Mounted Police Act precluded him from trying the appellant under the Criminal Code. The two constituted different offences. The former was a trial before a service tribunal for a breach of discipline amounting to a major service offence applicable only to members of the Force, while the latter was a trial in a court of record for a criminal offence applicable to all. The Court found the appellant guilty as charged and assessed a fine of $250 to be paid within one month or imprisonment for fifteen days.
The appellant appealed to the Court of Appeal for Saskatchewan. On February 16, 1984 the appeal was dismissed. The Court of Appeal held that the proceeding before the R.C.M.P. service tribunal was purely "disciplinary". In its view, that proceeding was concerned only with the professional aspect of the appellant's conduct. It was still necessary for the appellant to answer to society for the criminal aspect of his conduct. It held that s. 11(h) of the Charter did not prevent the appellant from being tried and charged for the criminal offence of assault because he was not found guilty and punished for that "offence" within the meaning of s. 11 of the Charter. Cameron J.A. stated:
A single act may have more than one aspect, and it may give rise to more than one legal consequence. It may, if it constitutes a breach of the duty a person owes to society, amount to a crime, for which the actor must answer to the public. At the same time, the act may, if it involves injury and a breach of one's duty to another, constitute a private cause of action for damages, for which the actor must answer to the person he injured. And that same act may have still another aspect to it: it may also involve a breach of the duties of one's office or calling, in which event the actor must account to his professional peers. For example a doctor who sexually assaults a patient will be liable, at one and the same time, to a criminal conviction at the behest of the state; to a judgment for damages, at the instance of the patient, and to an order of discipline on the motion of the governing council of his profession. Similarly a policeman who assaults a prisoner is answerable to the state for his crime; to the victim for damage he caused; and to the police force for discipline.
Cameron J.A. concluded:
In the light of this I think Constable Wigglesworth's contention must fail since the proceeding before the R.C.M.P. service tribunal was purely disciplinary. It was concerned only with the professional aspect of his conduct: the "offence" of which he was found guilty, a "major service offence", lay in the breach by him of his policeman's duty not to treat his prisoners harshly, cruelly, or with unnecessary violence. He must still answer to society for the criminal aspect of his conduct, or for his "criminal offence".
Cameron J.A. also added that he expressed no opinion as to the constitutionality of the power given to the R.C.M.P. under the Royal Canadian Mounted Police Act to imprison members of its force found guilty of major service offences.
By order dated May 22, 1986, Dickson C.J. stated the following constitutional questions:
1. Is a prosecution by the Crown for the offence of common assault pursuant to s. 245(1) of the Criminal Code of Canada, in relation to an act for which the accused has been previously convicted and fined for an offence of unnecessary violence towards a prisoner contrary to s. 25(1) and Part II of the Royal Canadian Mounted Police Act, in violation of s. 11(h) of the Canadian Charter of Rights and Freedoms?
2. If a prosecution by the Crown for the offence of common assault pursuant to s. 245(1) of the Criminal Code of Canada in relation to an act for which the accused has been previously convicted and fined for an offence of unnecessary violence towards a prisoner contrary to s. 25(1) and Part II of the Royal Canadian Mounted Police Act violates s. 11(h) of the Canadian Charter of Rights and Freedoms, is the subsequent prosecution by the Crown justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?