R. v. Shubley

Section 11(h) of the Charter is directed at preventing the State from making repeated attempts to convict an individual. It forbids the prosecution of an accused twice for the same offence. In order for it to be operative, there must be two proceedings or trials for the same offence. It is clear that the criminal proceedings here in issue constitute a trial for an offence -- the offence of assault causing bodily harm. The question which remains is whether the prison disciplinary proceedings against Shubley constituted a trial for the same offence, as a consequence of which Shubley has already been found guilty and punished.

After the hearing of the appeal in this matter but before judgment, this Court rendered its decision in R. v. Wigglesworth, supra. In that decision, the central question was whether an RCMP officer's conviction for a "major service offence" (an assault) under the Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, precluded proceedings under the Criminal Code for the same misconduct, on the ground that such proceedings 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 Court held that the criminal proceedings were not barred. Wilson J., writing for the majority, formulated two tests for determining whether prosecution is barred by s. 11: an offence falls under s. 11(h) if the proceedings are, by their very nature, criminal proceedings, or if the punishment invoked involves the imposition of true penal consequences.

The Court of Appeal in this case ((1988), 63 O.R. (2d) 161) held that under the interpretation of "offence" as defined in R. v. Wigglesworth, the earlier cases relied on by the trial judge and the appellant were no longer relevant. After examining the relevant provisions of the Ministry of Correctional Services Act, the Court of Appeal concluded that neither element of the test in R. v. Wigglesworth was established. The court found that the misconduct process was not of a criminal nature, but rather was focused on the discipline of an inmate, being "implicitly aimed at promoting the orderly regulation and over-all good government of correctional institutions". The court also concluded that the punishment given to the inmate was "mainly the loss or withdrawal of privileges or benefits normally available" and thus did not involve the imposition of true penal consequences. The court held that the inmate had not been convicted of an "offence" and concluded that the trial judge had erred in staying the proceedings.

I am of the view that the Court of Appeal was correct in concluding that on the tests propounded by this court in R. v. Wigglesworth, the continued prosecution of Shubley did not violate s. 11(h) of the Charter .

By way of background, I note that R. v. Wigglesworth must be considered in the context of the jurisprudence which preceded it. The Supreme Court had under consideration two divergent lines of authority on the interpretation of s. 11(h) of the Charter . The first, represented by such cases as Re Nash and The Queen (1982), 70 C.C.C. (2d) 490 (Nfld. Prov. Ct.), and Re Lazarenko and Law Society of Alberta (1983), 4 D.L.R. (4th) 389 (Alta. Q.B.), held that "offence" in s. 11(h) should be interpreted broadly as extending to non-criminal prosecutions. For example, in Re Nash and The Queen, supra, Kennedy Prov. Ct. J., when considering the effect of police disciplinary proceedings, held at p. 494 that "The word `offence' is broad enough to apply to any breach or charge whereby an accused can be punished". The first line of authorities includes cases such as Re Peltari and Director of the Lower Mainland Regional Correctional Centre (1984), 15 C.C.C. (3d) 223 (B.C.S.C.), in which "offence" was interpreted broadly enough to include disciplinary offences or misconduct occurring within prison settings.

A narrower interpretation of s. 11(h) had been adopted by Toy J. (as he then was) in R. v. Mingo (1982), 2 C.C.C. (3d) 23 (B.C.S.C.) R. v. Mingo, like this appeal, was concerned with prison discipline proceedings. Mingo, together with certain other inmates, was alleged to have participated in smashing windows and equipment and attempting to start a fire at a federal penitentiary in British Columbia. Mingo was found guilty of several disciplinary offences resulting in 90 days' punitive segregation and loss of 135 days of earned remission. In the meantime, criminal charges were laid against him. At trial, Mingo sought a stay of the criminal charges on the ground that to proceed would violate his right under s. 11(h) of the Charter not to be tried twice. Toy J. denied the application. He rejected the argument that an "inmates offence" or "disciplinary offence" constituted an "offence" under s. 11(h) of the Charter , holding that "offence" under s. 11(h) is confined to proceedings in courts on summary or indictable conviction offences. Prison disciplinary proceedings did not meet this test. Toy J. added, at p. 34:

An examination of the disciplinary offences in s. 39 of the current Penitentiary Service Regulations, C.R.C. 1978, c. 1251, satisfies me that the disciplinary offences and the hopefully rapid disposition of those offences are a necessary adjunct required by the institutional heads to maintain discipline for the benefit not only of staff but other inmates in the institution as well as the offending inmate.

In R. v. Wigglesworth, Wilson J., after reviewing the two lines of authorities on s. 11(h) of the Charter , at p. 554, opted in favour of the narrower view of s. 11(h) adopted in R. v. Mingo:

It is my view that the narrower interpretation of s. 11 favoured by the majority of the authorities referred to above is in fact the proper interpretation of the section. The rights guaranteed by s. 11 of the Charter are available to persons prosecuted by the State for public offences involving punitive sanctions, i.e., criminal, quasi-criminal and regulatory offences, either federally or provincially enacted.

At page 556, quoting from R. v. Mingo, she stated:

I would agree with the conclusion of Toy J. in R. v. Mingo, supra, at p. 36:

In my respectful view, the authors of the new Charter , when they employed the unqualified word "offence" as opposed to "criminal offence", were doing nothing more than providing for the equal protection of Canadian citizens from breaches of their rights under provincial as well as federal laws in so far as public as opposed to private or domestic prohibitions were concerned.

In the result, Wilson J. formulated the test for the application of s. 11(h) to which I earlier referred.

It thus appears that this court in R. v. Wigglesworth accepted the view that internal disciplinary proceedings, including prison disciplinary hearings such as those at issue in R. v. Mingo, might well fall outside the ambit of s. 11(h). Nevertheless, the logic of R. v. Wigglesworth is to proceed not by a category approach, but by application of the general principles there laid down. Thus, one must examine whether the particular proceedings here at issue meet the tests set forth in R. v. Wigglesworth.

Applying the double test set forth in R. v. Wigglesworth, the first question is whether the proceedings in question are, by their very nature, criminal proceedings.

Before considering this question in the context of the proceedings here at issue, I venture a preliminary observation. The question of whether proceedings are criminal in nature is concerned not with the nature of the act which gave rise to the proceedings, but the nature of the proceedings themselves. Section 11(h) provides protection against duplication in proceedings of a criminal nature. It does not preclude two different proceedings, one criminal and the other not criminal, flowing from the same act. As Cameron J.A., of the Saskatchewan Court of Appeal, stated at p. 549 in R. v. Wigglesworth, in a passage cited by Wilson J. in this court's judgment:

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".

Applying the words of Cameron J.A. to this case, the appellant as a consequence of the alleged assault is answerable to the State for his crime; to the victim for injury caused; and to the prison officials for breach of discipline. While the act giving rise to the disciplinary proceedings against Shubley may, in one aspect, constitute a criminal act, it does not follow that the disciplinary proceedings themselves were criminal in nature.

Against that background, I return to the test posed by R. v. Wigglesworth. Was the prison disciplinary proceeding to which the appellant was subject, by its very nature, criminal? I conclude it was not. The appellant was not being called to account to society for a crime violating the public interest in the preliminary proceedings. Rather, he was being called to account to the prison officials for breach of his obligation as an inmate of the prison to conduct himself in accordance with prison rules. If he had been called upon twice to answer to the State for his crime, s. 11(h) would apply. But section 11(h) does not operate so as to preclude his being answerable to prison officials for a breach of discipline as well as to the State for his crime.

The internal disciplinary proceedings to which the appellant was subject lack the essential characteristics of a proceeding on a public, criminal offence. Their purpose is not to mete out criminal punishment, but to maintain order in the prison. In keeping with that purpose, the proceedings are conducted informally, swiftly and in private. No courts are involved. They are not, to borrow the words of Wilson J. in R. v. Wigglesworth, at p. 560: "of a public nature, intended to promote public order and welfare within a public sphere of activity." The answer to the first branch of the R. v. Wigglesworth test must be that the prison discipline proceedings are not, by their nature, criminal proceedings. They are internal disciplinary proceedings, even though they arise from the same act as gives rise to criminal proceedings.

I turn then to the second situation in which the application of s. 11(h) of the Charter may apply. Does the punishment involved in internal prison disciplinary proceedings involve the imposition of true penal consequences? One must first examine what constitutes a true penal consequence. Wilson J. provides the answer in R. v. Wigglesworth. After stating that persons charged with private or domestic matters may nevertheless possess s. 11 rights because the proceedings involve the imposition of "true penal consequences", she explains what she means by that term, at p. 561:

In my opinion, a true penal consequence which would attract the application of s. 11 is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity. [Emphasis added.]

Wilson J. goes on to comment that a restricted power to impose fines in order to achieve a particular private purpose may not attract the application of s. 11. As for imprisonment, she questions (noting the issue was not argued) whether the imposition of imprisonment could ever be anything but a penal consequence.

In this case, the internal disciplinary proceeding involved neither fines nor imprisonment. The appellant's punishment was close confinement for five days on a special diet that fulfils basic nutritional requirements. Looking more generally at the powers conferred by s. 31 of Regulation 649 on a superintendent who finds that an inmate has committed a misconduct, it may be observed that they are generally confined to matters affecting the conditions under which a prisoner lives. Privileges, such as work activity and temporary absences, may be removed. In more serious cases, close confinement may be ordered and remission standing to the inmate's credit revoked:

Regulation 649, R.R.O. 1980:

31.--(1) Where the Superintendent determines that an inmate has committed a misconduct, the Superintendent may impose one or more of the following penalties:

1.Loss of all or some privileges for a period not greater than 120 days.