Stenhouse v. Canada (Attorney General), 2004 FC 375

Date: 20040312

Docket: T-1174-02

Citation: 2004 FC 375

BETWEEN:

                                                           ROBERT G. STENHOUSE

                                                                                                                                                       Applicant

                                                                              - and -

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

KELEN J.:

[1]                 This is an application for judicial review of the June 18, 2002 decision of the Commissioner of the Royal Canadian Mounted Police, Giuliano Zaccardelli (the "Commissioner"), which confirmed the External Review Committee recommendation that the applicant resign within 14 days or be dismissed from the Royal Canadian Mounted Police ("RCMP"), for breaching the RCMP Oaths of Secrecy and Office, and Code of Conduct.

[2]                 The disciplinary action was the result of the applicant's disclosure without authorization, in 1998 and 1999, of confidential RCMP and other confidential police documents related to policing strategies for outlaw motorcycle gangs ("OMGs") to Mr. Yves Lavigne, a Canadian author. Mr. Lavigne published these documents in his 1999 book, "Hells Angels at War".

[3]                 This application raises four issues: an alleged reasonable apprehension of bias on the part of the Commissioner; the "whistle-blowing" defence; the effect of alleged breaches of the rules of natural justice; and, whether the disciplinary action was an abuse of process and should be stayed.

FACTS

[4]                 The following is the statement of facts agreed to by the parties:

(1)        At all material times, the applicant was a member of the RCMP;

(2)        On March 23, 1982, the applicant was engaged as a Regular Member of the RCMP and swore an Oath of Secrecy;

(3)        From January 1, 1998 to September 1, 1999 the applicant was a Sergeant assigned to duties in the Edmonton drug section;

(4)        On September 1, 1999 the applicant was promoted to Staff Sergeant and assigned to the "K" Division Administration Office in Edmonton; and,

(5)         Between January 1, 1998 and October 18, 1999, both dates inclusive, the applicant released the following documents without authority from any manager or the author, to Yves Lavigne, a person who is neither a member or employee of the RCMP, nor a person authorized to receive these documents:

a)         Letter dated 98-04-08 from Det. R. Robertson, Provincial Coordinator North to Sgt. Bob Stenhouse;

b)         Memorandum dated 98-03-26 from Det. G. Park, provincial OMG Coordinator South to Sgt. Bob Stenhouse;

c)         Letter dated 98-04-08 from Chief J. Fantino to Assistant Commissioner Donald McDermid, marked confidential;

d)         Memorandum dated 98-04-24 from Sgt. R.H. McDonald to A. Commr. D.N. McDermid, marked confidential;

e)         Memorandum dated 98-04-30 from C/Supt. R.D. MacKay to A/OIC FSS (North), marked protected "A";

f)          Document titled "Criminal Intelligence Service Alberta, Outlaw Motorcycle Gangs, A Communication Approach", marked Confidential;

g)         Letter dated 98-10-09 from Jane Webster, C/M, OMG Analyst and A.S./Sgt. R.H. McDonald to CISA Executive Committee et al., marked Protected "A";

h)         Letter dated 98-01-05 from Chief J. Fantino to all CISC Members; and,

i)          Minutes of Tier 1 Meeting of 98-08-23, marked 3^rd Party Rule.

[5]                 During the applicant's 18 year career he received a number of promotions, a commendation for bravery, and attained the rank of Staff Sergeant ("S/Sgt."). He was involved in undercover operations, and worked in the areas of drug enforcement, homicide, intelligence and organized crime investigations. He infiltrated the Hells Angels as an undercover agent for about one year. The RCMP Adjudication Board decision speaks of the applicant as an outstanding and courageous officer without any blemish on his record until the incident in question. The applicant developed a particular interest in OMGs and policing strategies for dealing with them, and in 1996, was transferred to the OMG intelligence unit. Because of his efforts in this area, the applicant was selected to represent the RCMP on the Organized Crime Working Committee ("Working Committee") in 1998.

[6]                 Around the time the applicant served on the Working Committee, he drafted several briefing notes and memoranda to RCMP criminal operations officials suggesting that there were flaws in current models of OMG policing, and proposed improvements and alternatives.

[7]                 The applicant alleges that he released the confidential documents out of frustration, because, in his opinion, the RCMP was conducting minimal investigations into the criminal activity of the Hells Angels motorcycle gang, while at the same time conducting a media campaign urging the public to exert pressure on the Government to provide police with more resources. He alleges that OMGs were not being properly investigated, and that there was a serious risk that any threat they posed to the public would not be properly addressed. The applicant claims he released the documents to corroborate his assertions regarding the policing of OMGs, and only after he had considered his legal, moral, and ethical obligations to his employer. The applicant further claims that his disclosure resulted in no harm, other than embarrassment, to the RCMP.

Apology from Stenhouse

[8]                 On October 18, 1999, when the applicant learned that the documents that he had provided to Mr. Lavigne were reproduced in Mr. Lavigne's book, the applicant sent an e-mail to several of his RCMP colleagues including his direct supervisor, Superintendent Roberts, and his commanding officer, Assistant Commissioner McDermid, expressing his "sincere remorse" and "heartfelt apology" for having disclosed confidential documents to Mr. Lavigne. In this e-mail, the applicant explained that he had provided Mr. Lavigne with the documents due to his frustration with the RCMP's manner of investigating the Hell's Angels and other OMGs, his belief that he had to do something to compel the law enforcement community to change its approach towards OMG policing, and his hope that he could "possibly make some positive changes through a "whistle-blowing" format." The applicant further explained that he had provided the documents on the understanding that they would only be used to provide background information. In an attempt to explain his actions, the applicant also detailed his own "emotional break-down", and his attempts to render his resignation as a result of his extreme frustration with RCMP policy. The applicant concluded his e-mail by stating "I did not do this for any self-serving reasons and I am truly sorry if my actions have caused anyone embarrassment or stress".

Formal Disciplinary Action and Decision

[9]                 Under subsection 43(1) of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 ("RCMP Act"), an RCMP Adjudication Board ("Adjudication Board") was appointed to conduct a disciplinary hearing into two allegations:

(1)         that the applicant's act is "disgraceful conduct that could bring discredit on the Force" contrary to subsection 39(1) of the RCMP Code of Conduct; and,

(2)         the applicant breached his Oath of Secrecy contrary to section 50 of the RCMP Code of Conduct.

The Adjudication Board dismissed the second allegation on the ground that it was duplicitous and that it would be unfair to sanction the applicant twice for the same factual situation.

[10]            The Adjudication Board conducted hearings in the months of February, March and April over a 10 day period. The Appropriate Officer Representative ("AOR"), an RCMP officer designated by the Commissioner to present the discipline case to the Adjudication Board, called 11 witnesses and the applicant called 13 witnesses.

[11]            On April 3, 2001, the Adjudication Board found that the applicant was guilty of discreditable conduct and he was directed to resign from the RCMP within 14 days, or be dismissed. It found that the applicant showed little remorse for his actions, and that his misconduct goes to the heart of the employer-employee relationship and the public's expectations of police officers. The 52 page decision concluded at page 51:

S/Sgt. Stenhouse apologized and expressed some remorse. His view was that his conduct was moral, ethical and legal. While he did recognize that he exercised poor judgment, S/Sgt. Stenhouse has never once stated he was wrong in his assessment. In testimony, he stated he did a lot of soul searching before releasing the documents. S/Sgt. Stenhouse also stated that, in retrospect, he should have vetted the documents to prevent embarrassment to individuals. We simply have no evidence before us that his views have changed, that he now considers his conduct as totally inappropriate and in breach of his Oaths of Office and Secrecy. We heard new evidence on sanction about S/Sgt Stenhouse resorting to the potential use of public disclosure to influence the Appropriate Officer into accepting ADR. He stated embarrassing information might be made public through evidence. We also heard him placing condition on his reinstatement. Such action does not reflect sincere remorse and a desire to change and does not show that S/Sgt. Stenhouse is willing to fully embrace the values of the Force. It does not show a willingness to observe his Oaths of Secrecy and Office which are essential elements of the employment contract with the RCMP, an employment contract which S/Sgt. Stenhouse voluntarily accepted when he joined the RCMP. Potential for rehabilitation was not proven. The breach of trust represented by the misconduct in the present case goes to the heart of the employer-employee relationship and no sanction could re-establish it. S/Sgt. Stenhouse's conduct and the character it reveals is such as to undermine and seriously impair the essential trust and confidence the employer is entitled to place in him. S/Sgt. repudiated his contract of employment, or one of its essential ingredients (See Ennis v. Canadian Imperial Bank of Commerce, (1986) 13 CCEL 25).

[12]            The applicant appealed the Adjudication Board's decision to the Commissioner who, pursuant to subsection 45.15(1) of the RCMP Act, referred the Adjudication Board's decision to the External Review Committee for independent review.

[13]            On June 5, 2002, the External Review Committee recommended that the appeal be dismissed. The External Review Committee found that the applicant's actions were not a protected form of free speech, and that he was not entitled to the "whistle-blower" defence. It concurred that the applicant had violated his duty of loyalty, and brought discredit to the RCMP.

[14]            The External Review Committee decision on sanction carefully considered all of the circumstances, including the apology of the applicant. The decision stated at paragraph 80:

¶ 80 Under different circumstances, the appellant's misconduct might not have warranted the sanction that was imposed by the Board. Even though his misconduct was a breach of trust, he could still have continued as a member of the Force if the evidence had established that his conduct was out of character, that he understood not just that his actions amounted to an error in judgment but also a breach to his duty of loyalty towards his employer and that the risk that he might breach that duty again was minimal [...]

¶ 81 Even though the appellant acknowledged that his disclosure was an error in judgment, the only error that he recognized was that he should not have trusted Mr. Lavigne to use the documents as background information only. He stated that he would not, in the future, turn to an author or journalist, if he had concerns about Force policy or practice, but there was something very unsettling and not at all reassuring about the entire nature of his testimony before the Board. Obviously, he did not come across to the Board as someone who could be trusted to respect his duty of loyalty to his employer from now on [...]

[15]            The External Review Committee concluded that the RCMP has a legitimate reason to be concerned that the applicant could no longer be trusted with confidential information and that the sanction of dismissal in such circumstances has been accepted as an appropriate penalty in other non-RCMP labour decisions.

[16]            On June 18, 2002, the Commissioner accepted the recommendation of the External Review Committee, and dismissed the applicant's appeal.

[17]            On July 24, 2002, the applicant commenced this application for judicial review.

RELEVANT LEGISLATION

[18]            The relevant legislation is the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361, and the Federal Courts Act, R.S.C. 1985, c. F-7. The relevant excerpts are attached to these Reasons as Appendix A.

STANDARD OF REVIEW

[19]            The applicant submits that the standard of review is correctness, while the respondent submits that it is patent unreasonableness.

Functional and Pragmatic Analysis

[20]            In Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, (2003), 223 D.L.R. (4th) 599, the Supreme Court of Canada held that there may be different standards of review for different issues in the same case. In deciding which standard of review is applicable in a particular judicial review proceeding, the Court requires that a pragmatic and functional approach be undertaken. The Court in Dr. Q. held at paragraph 26:

[...] In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors - the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question - law, fact, or mixed law and fact [...]

[21]            In applying the functional and pragmatic approach to this case I conclude:

(1) Privative Clause - The RCMP Act contains a partial privative clause in subsection 45.16(7) which states:

A decision of the Commissioner on an appeal under section 45.14 is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal to or review by any court.

This "partial" privative clause means that deference is owed to the Commissioner's decision, as it is owed in other decisions before the Federal Court on judicial review under subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7. The amount of deference is determined by applying the following steps in the functional and pragmatic approach;

(2) Expertise of the Tribunal - The Commissioner has an obvious expertise relating to the RCMP, which favours deference on such matters;

(3) Purpose of the Legislation- The legislation recognizes the need for the RCMP to control its own disciplinary matters, as reflected in the three stage comprehensive disciplinary process set out in the RCMP Act. Moreover, RCMP members are not covered by the Public Service Employment Act, R.S.C. 1985, c. P-33. This favours deference to the Commissioner in making a disciplinary decision; and,

(4) Nature of the Question, Law, Fact or Mixed Law and Fact - The RCMP disciplinary process is largely fact driven. It is within the expertise of the Commissioner to make or review factual findings. Accordingly, great deference is owed to the Commissioner in dealing with questions of fact. On questions of law, the Court has greater expertise than the Commissioner, will grant no deference to the Commissioner, and will review the Commissioner's decision according to the standard of correctness. On questions of mixed law and fact, the Court will grant limited deference, and review the decision on a standard of reasonableness simpliciter, i.e. whether the decision is reasonable and can withstand a "somewhat probing examination".

[22]            In this case, each of the issues identified by the applicant raises a question of mixed law and fact. Accordingly, the standard of review applicable to each of the issues is reasonableness simpliciter. Of course, if the decisions under review misstate the law, the Court would apply the correctness standard.                     

ISSUES

[23]            The applicant raises the following issues:

(1)        Was there a bias, or a reasonable apprehension of bias, in respect of the Commissioner hearing the appeal ?

(2)        Did the Commissioner violate the principles of procedural fairness and natural justice ?

(a)         The Commissioner failed to consider new and relevant evidence;

(b)         The applicant did not receive full and complete disclosure of all evidence respecting his case;

(c)         The AOR and investigators who pursued the case possessed a bias against the applicant.

(3)        Does the RCMP's conduct in this disciplinary process constitute an abuse of process warranting a final stay of the proceedings ?

(4)         Did the Commissioner err in his application of the law of "whistle-blowing" ?

ANALYSIS

Formal Disciplinary Action under the RCMP Act

[24]            The RCMP Act provides a comprehensive and fair process for formal disciplinary action against members of the RCMP. Parliament has legislated a three stage scheme of checks and balances which protects the rights of the RCMP member alleged to have breached the RCMP Code of Conduct. At the end of the three stage process, the Federal Court is empowered to judicially review the decision and the process. The three stages are:

1^st Stage - a hearing before an adjudication board made up of three members of the RCMP, at least one of whom is a lawyer (subsection 43(1) of the RCMP Act);

2^nd Stage - on appeal from the decision of the Adjudication Board, the External Review Committee, an independent civilian body, reviews and reports on the Adjudication Board's decision recommending discipline against members of the RCMP (subsection 45.15(1)); and,

3^rd Stage - after the report of the External Review Committee, the Commissioner considers and decides the appeal with respect to the proposed disciplinary action (subsection 45(16)(1) and (2)).

First Issue: Apprehension of Bias

[25]            The evidence established that the Commissioner, then the Deputy Commissioner in charge of Organized Crime and Operational Policy, was designated as early as January 24, 2000 to monitor the investigation of the applicant, approximately five months before the RCMP initiated formal disciplinary action against the applicant. The evidence is that the then Deputy Commissioner Zaccardelli received briefing notes on the investigation and then daily briefing notes on the prosecution during the adjudication hearings. Accordingly, the Court concludes that the Commissioner had a special interest in the prosecution of the charges, and received briefings from the perspective of the prosecutor and investigator, i.e. he was in contact with one of the parties throughout the investigation and prosecution of the disciplinary charges.

[26]            The External Review Committee acknowledged that a "reasonable man" would have a reasonable apprehension that the Commissioner was biased, but said that there is no legal requirement for the Commissioner to be an independent, impartial decision-maker under the RCMP Act. The External Review Committee said at paragraph 93 of its decision:

Furthermore, while I can certainly appreciate why the Commissioner might not be perceived by the Appellant as an independent decision-maker, there is no legal requirement that the appeal be decided by an independent adjudicator. [...]

I cannot agree.

[27]            The Courts should not interfere where it is clear that the legislation intended to confer overlapping authority on the Commissioner, who may be authorized to carry out both investigative and adjudicative functions, even to the even to the point of denying common law natural justice. In this case, the Commissioner has the power to manage the RCMP under section 5 of the RCMP Act, and that would include being knowledgeable of high profile disciplinary proceedings. However, there is no provision in the RCMP Act which expresses any intention that the applicant should be denied the rights of natural justice in the appeal process before the Commissioner. See Griffin v. Summerside (City) Police Force, (1998) 9 Admin. L.R. (3d) 295, _1998_ P.E.I.J. No. 30 per Jenkins J. at paragraphs 39, 40 and 41.

[28]            I wish to make clear that bias cannot be inferred simply from the Commissioner's awareness of the procedural history leading up to the appeal before him. This knowledge, in the absence of evidence of direct involvement in the case, is not enough in itself to lead a reasonable observer, knowing the circumstances, to conclude that the Commissioner would not decide the matter fairly. See Hawco v. Canada (Attorney General), (1998) 150 F.T.R. 106, _1998_ F.C.J. No. 838 per MacKay J. at paragraph 35.

[29]            Since the Commissioner's decision in this case on June 18, 2002, the Commissioner has decided in an appeal of a disciplinary decision (involving Corporal Robert A. Read) that he should excuse himself from deciding the appeal because of his previous personal involvement in that case. The Commissioner decided at page 6 of that decision:

Since Parliament is presumed to speak for a reason, it is reasonable to conclude that Parliament intended to prohibit the Commissioner from delegating authority over disciplinary appeals under normal circumstances, but in specific situations where he or she is unable to act because of a serious impediment, such as an apprehension of bias, section 15 would apply (section 15 authorizes the senior deputy commissioner at headquarters to exercise all of the powers of the commissioner in the event that he or she is absent or unable to act).

In that case, the Commissioner did not decide the disciplinary appeal because he had previously played a role beyond the "normal management of the Force". The Commissioner concluded:

As I am unable to adjudicate Corporal Read's appeal because of my earlier involvement in the inquiry into his allegations of wrongdoing, section 15 of the RCMP Act will apply.

In my opinion, the same rationale is applicable herein.

[30]            The Court has concluded, upon a "somewhat probing examination" of the decision of the External Review Committee and the Commissioner with respect to bias, that the previous involvement of the Commissioner in the applicant's disciplinary case cannot but give rise to a reasonable apprehension of bias, which reasonably well-informed persons could properly have, of a biased appraisal and judgment on the issues to be determined. For that reason, the decision of the Commissioner is unreasonable with respect to the issue of bias, and must be set aside.

[31]            To paraphrase Mr. Justice de Grandpré (as he then was) in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at page 394, when the concern is that there be no prejudgment of issues, the participation of the Commissioner in discussions and monitoring the investigation and prosecution of the disciplinary charges against the applicant cannot but give rise to a reasonable apprehension, which a reasonably well informed person, including the applicant, could properly have, of a biased appraisal and judgment on the issues to be decided. In Griffin, Mr. Justice Jenkins held at paragraph 38:

¶ 38 It seems clear that Director Arsenault is biased in fact by the accumulation of his past involvements and actions. Should I be wrong on that assessment, then he is still disqualified by the existence in the circumstances of a clear and obvious reasonable apprehension of bias. In all the circumstances, Deputy Griffin could not obtain a fair hearing. He would not have an opportunity to present his case and be heard by an unbiased adjudicator, but rather only by the very person whose decisions, and actions, and prosecution, he directly challenges in that hearing.

Similarly in the case at bar, the accumulation of the Commissioner's past involvements and actions in this case since January 24, 2000, culminating in his decision dated June 18, 2002, cannot but give rise to a clear and obvious reasonable apprehension of bias.

Second Issue: The "Whistle-blower" Defence

(a)         The Defence

[32]            The freedom of a public servant, including a police officer, to speak out against the interests of his/her employer or supervisor about an illegal act or an unsafe practice or policy is protected in the common law and the Charter, and is commonly called the "whistle-blower" defence. It takes great courage for a "whistle-blower" to speak out. The "whistle-blower" defence originates in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, wherein the Supreme Court of Canada established the bounds of permissible public criticism of Government policies by public service employees. Chief Justice Dickson (as he then was), at page 470 of that decision, identified two situations where freedom of expression prevails over the duty of loyalty, namely, where the Government is engaged in illegal acts, or if its policies jeopardize the life, health, or safety of the public, and where criticism does not have an impact on a public servant's ability to perform effectively the duties of a public servant or on the perception of that ability.

[33]            In Haydon v. Canada (T.D.), [2001] 2 F.C. 82, Madam Justice Tremblay-Lamer held at paragraphs 82 and 83:

¶ 82        In Fraser, Dickson, C.J. held that the duty of loyalty does not demand absolute silence from public servants. The Fraser decision instructs us that the common law duty of loyalty encompasses certain exceptions or qualifications:

And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies.

¶ 83         In my opinion, these exceptions embrace matters of public concern. They ensure that the duty of loyalty impairs the freedom of expression as little as reasonably possible in order to achieve the objective of an impartial and effective public service. Where a matter is of legitimate public concern requiring a public debate, the duty of loyalty cannot be absolute to the extent of preventing public disclosure by a government official. The common law duty of loyalty does not impose unquestioning silence. As explained in Fraser, the duty of loyalty is qualified: "some speech by public servants concerning public issues is permitted." It is my understanding that these exceptions to the common law rule may be justified wherever the public interest is served. In this regard, the importance of the public interest in disclosure of wrongdoing, referred to as "the defence of whistleblowing", has been recognized in other jurisdictions as an exception to the common law duty of loyalty. _citations omitted_

[34]            In this regard, a public servant or a member of the RCMP who speaks out on an issue of public importance cannot be dismissed if the case falls within the exceptions identified by the Supreme Court. In these situations, the public interest outweighs the competing objectives contained in the duty of loyalty and oath of secrecy. The importance of the "whistle-blowing" defence to democracy, the maintenance of an impartial and effective public service, and the public's faith in such institutions was succinctly summarized in Haydon by Tremblay-Lamer J. at paragraph 120:

Where a matter is of legitimate public concern requiring a public debate, the duty of loyalty cannot be absolute to the extent of preventing public disclosure by a government official. The common law duty of loyalty does not impose unquestioning silence.

(b)         The External Review Committee Decision on the "Whistle-Blower" Defence

[35]            The External Review Committee recognized at paragraph 71 that the disclosure of corrupt or reckless practices by the RCMP would fall within the "whistle-blowing" exception. However, the External Review Committee and the Commissioner decided that the applicant's public disclosure of confidential documents did not fall within the "whistle-blowing" defence. The applicant's Oath of Secrecy was breached, which breach is analogous to a breach by a public servant of the common law duty of loyalty. The objective of the duty of loyalty owed by public servants is to promote an impartial and effective public service. This same common law duty of loyalty is owed from the applicant to the RCMP, together with the statutory Oath of Secrecy and, as discussed above, the limited exceptions to these constraints on members of the RCMP are only justified where the public interest is served.

[36]            The External Review Committee held, at paragraph 71 of its decision:

In the present case, however, there does not appear to have been a discernable benefit to Canadian society arising from the Appellant's disclosure and while he had concluded that the policy and practices which were disclosed were "unethical", that conclusion does not appear to have been based on an in-depth understanding of what the national and provincial strategies were attempting to achieve. Any benefit that Canadian society might have gained from that disclosure was not nearly as significant as the potential damage that could have resulted. I am referring here to the evidence of Sgt. McDonald and Insp. Zelmer with respect to the impact that such a disclosure is likely to have on the willingness of law enforcement agencies to share information amongst themselves, including intelligence on OMGs, especially given that information-sharing amongst agencies is critical to effective law enforcement.

[37]            At paragraph 73, the External Review Committee found that there was no basis for the Appellant's contention that the RCMP was conspiring to endanger the Canadian public in order to strengthen its case for additional funding to combat OMGs. At paragraph 77, the External Review Committee concluded that the applicant, by disclosing confidential documents, was not raising a matter of public concern, but reacting to the fact that his superior officers were unwilling to accept his own proposal on how to realign existing resources to combat OMGs. In addition, the External Review Committee found, at paragraph 79, that the illegal disclosure affects the applicant's ability to carry out his duties as an RCMP member in the future. Accordingly, the External Review Committee found that the applicant's disclosure of confidential documents did not fall within one of the "whistle-blowing" exceptions.

(c)         Conclusion Regarding "Whistle-Blower" Defence

[38]            It is my view that the External Review Committee correctly and reasonably applied the jurisprudence which authorizes two situations where freedom of expression prevails over the duty of loyalty and the Oath of Secrecy, and correctly and reasonably concluded the disclosure of confidential documents by the applicant did not fall within the "whistle-blowing" defence. In fact, the applicant himself realized that the disclosure was not justifiable as soon as the confidential documents were published. In this case, the External Review Committee reasonably found:

(1)         the disclosure of confidential documents by the applicant was not for the purpose of exposing an illegal act by the RCMP or a policy which would jeopardize the life, health or safety of the public;

(2)         the disclosure negatively impacts on the applicant's ability to perform effectively his duties in the future as an RCMP officer or on the RCMP's perception of his ability;

(3)         the reason for the breach of confidence by the applicant was his disagreement and dissatisfaction with RCMP internal policy regarding the allocation of resources to combat OMGs; and,

(4)         there is no evidence that that policy jeopardized the safety of the public.

[39]            While the freedom of public servants and, in the present case, members of the RCMP, to speak out is protected in common law and by the Charter, the "whistle-blowing" defence must be used responsibly. It is not a license for disgruntled employees to breach their common law duty of loyalty or their oath of secrecy. In this case, the confidential documents disclosed by the applicant reflected his disagreement with confidential RCMP policy on the allocation of resources to fight crime. The documents do not disclose either an illegal act by the RCMP or a practice or policy which endangers the life, health or safety of the public. The RCMP policy at issue involves the allocation of RCMP resources to fighting different types of crime - - a policy with which the applicant disagreed, but a confidential policy properly decided by senior RCMP management who know and understand the "big picture" of crime in Canada. Accordingly, while the Court recognizes the important objectives served by the availability of the "whistle-blowing" defence, the Court agrees that it does not apply in the present circumstances.

[40]            I also note that the memorandum from Assistant Commissioner Leatherdale (discussed below), which was improperly withheld from the applicant, could not have affected the "whistle-blowing" defence.

Third Issue:     Rules of Natural Justice

[41]            The applicant submits that the Adjudication Board, the External Review Committee and the Commissioner breached the rules of natural justice as follows:

(1)         the Board failed to adjourn the hearing and require proper disclosure of relevant documents so that the applicant could make his defence;

(2)        the Committee and the Commissioner failed to allow the applicant to introduce new relevant documentary evidence which the applicant obtained after the hearing; and,

(3)         the RCMP investigated and prosecuted this disciplinary case with bias, i.e. an intent to get the applicant.

1.          Disclosure of Documents Prior to the Adjudication Board Hearing

[42]            On January 18, 2001, approximately one month before the Adjudication Board hearing, the applicant submitted a motion that the hearing be adjourned because the AOR failed to disclose documents related to the case notwithstanding repeated requests in September, October, November and December, 2000. The AOR argued that the material was not relevant or critical. The Adjudication Board held at page 1 of its decision:

[...] The Board is not in a position to make a determination on this issue. What we found, though, is that the AOR had endeavoured to comply with the MR's requests: indeed, there were no complaints in this regard. Rather, the problem stemmed from the disclosure being requested in a piecemeal fashion over time and, it appeared, with little specificity as to the material requested [...]

[43]            The material before the Court demonstrates that the applicant's legal representative repeatedly sought disclosure of documents, and the legal representative of the RCMP held back documents which should have been disclosed. The Court has the advantage of 20/20 hindsight since these documents were disclosed after the hearing to the applicant as a result of the aforementioned request under the Privacy Act.

[44]            I will review the documents which the Court considers significant.

(i)          Interoffice Memo from RCMP Assistant Commissioner R.K. Leatherdale to RCMP Inspector B. J. Roberts dated January 10, 2000 entitled Stenhouse Investigation ("Leatherdale Memo")

[45]            This document was not disclosed to the applicant before or during the Adjudication Board hearings. The document was produced after the hearings as a result of a Privacy Act request from the applicant .

[46]            In this document, Assistant Commissioner Leatherdale reviews the e-mail sent by the applicant ("Stenhouse e-mail") admitting that he leaked the confidential documents to Mr. Lavigne, explaining the reason he did so, and apologizing. Mr. Leatherdale raises the following questions and comments about the Stenhouse e-mail:                  

(1)         other members of the RCMP knew about Stenhouse's "dilemma", i.e. concern about the manner in which the RCMP were dealing with the OMGs, and what they knew about Stenhouse's "activities". While there is no excuse for what Stenhouse did, Stenhouse has some "sense of responsibility" which should be considered;

(2)         did RCMP management know about Stenhouse's complaints and how did they deal with them. Who were the RCMP managers that knew of this matter;

(3)        Stenhouse says that he was about to be removed from "check stops". Leatherdale says this needs to be explored;

(4)         Stenhouse says that he "emotionally broke-down". What was done about his break-down and how stable is Stenhouse; and,

(5)         there is evidence that Stenhouse was frustrated and nobody listened. Stenhouse signalled in his complaint that he was a "whistle-blower". This needs to be explored.

[47]            The Leatherdale Memo was relevant and should have been disclosed to the applicant before the Adjudication Board hearing. Moreover, this document should also have been considered by the External Review Committee. However, the External Review Committee had no direct knowledge of this document since it was not identified by the applicant in his submission to the External Review Committee. The applicant asked the External Review Committee to allow the introduction of new evidence relevant to bias, abuse of process, denial of natural justice, and inadequate representation by his lawyer appointed by the RCMP. The applicant did not identify any document related to his "whistle-blowing" defence or to the appropriate sanction for his breach of conduct.

[48]            I have concluded that the Leatherdale Memo would not have affected the decision of the Adjudication Board or the External Review Committee with respect to the "whistle-blowing" defence. However, the memo expresses a concern and empathy for the applicant and for the lack of action by RCMP superiors in dealing with the applicant's frustration, complaints and emotional break-down. In this sense, the document and its author, who probably would have been called as a witness, might have affected the sanction recommended by the Adjudication Board and the External Review Committee. Perhaps the Leatherdale Memo indicates that the RCMP did not properly consider or deal with the complaints and frustration expressed by the applicant, his emotional break-down or his attempt to resign. It is possible that the External Review Committee may find that the RCMP ought to have recognized the applicant was experiencing problems in relation to his job and borne some responsibility for helping the applicant, considering the applicant's stellar and unblemished eighteen year career with the RCMP. If the External Review Committee found that the RCMP breached its responsibilities in this regard, it may have found that this was a mitigating factor relevant to the appropriate sanction. For this reason, this matter will be sent back to the External Review Committee with directions to consider this document, relevant viva voce evidence arising from this document, and revise its report dated June 5, 2002 accordingly. This is a basic part of the applicant's right to a fair hearing as I said in Haydon v. Canada (Attorney General) 2003 FCT 740, _2003_ F.C.J. No. 957 at paragraph 25:

[...] When an important relevant document is illegally withheld, and there is a real possibility that that document impacted the appellants, the appellants have the right to an adjournment and the right to test that document through witnesses and cross-examination. That is a basic part of a fair hearing, to which the appellants were entitled. See Savoie, supra., and Sorobey v. Canada, [1987] 1 F.C. 219 at 221 per Hugessen J.A. (as he then was).

(ii)         Memorandum to Superintendent Roberts (the Applicant's direct supervisor) from Daniel Dutchin (the legal counsel for the RCMP at the Adjudication Board Hearing) dated January 26, 2001 entitled "S/SGT. Stenhouse"

[49]            This memorandum deals with a document dated January 24, 2000 concerning the involvement of then Deputy Commissioner Zaccardelli. The memorandum admits that the RCMP legal counsel knows that it is relevant, and has not released or disclosed the document.

[50]            I am satisfied that this is a breach of the rules of natural justice, and demonstrates an intentional withholding of relevant documents by legal counsel for the RCMP. However, I must conclude that correcting this breach of natural justice could not affect the outcome of the case.

(iii)        Memorandum from Inspector Roberts (Stenhouse's direct superior) to Headquarters dated January 24, 2000 entitled "Stenhouse - Revocation of Security Clearance"

[51]            This memo states:

This matter is being treated in a most serious manner with the Commissioner having been involved on a few occasions to date. Presently, D/COMMR. ZACCARDELLI has been designated to monitor the progress of this investigation.

[52]            This document was not disclosed prior to the hearing. It was disclosed only on the second to last day of the hearing after the author had testified. I conclude that the failure to disclose this document in a timely fashion constitutes a breach of natural justice. However, I am satisfied that if this document had been disclosed in a timely fashion it would not have affected the outcome of the case.

[53]            Other documents not released showed that the Commissioner was receiving daily briefings from the lawyer for the RCMP at the Adjudication Board hearing. The documents demonstrated that the Commissioner was personally involved to some extent in the investigation and the prosecution of the case. These documents were relevant to the applicant's argument that the disciplinary proceeding was biased and an abuse of process.

[54]            I am satisfied that the Adjudication Board erred in failing to grant the motion to adjourn and failing to ensure that the applicant received full and timely disclosure before the hearing commenced. This is a basic part of the rules of natural justice and the right to a fair hearing.

[55]            However, in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, the Supreme Court of Canada states that in some instances a court should disregard a breach of natural justice if correcting the breach could not have any effect on the outcome of the case. At paragraphs 51 to 53 the Court states, per Iacobucci J.:

[51]       In light of these comments, and in the ordinary case, Mobil Oil would be entitled to a remedy responsive to the breach of fairness or natural justice which I have described. However, in light of my disposition on the cross-appeal, the remedies sought by Mobil Oil in the appeal per se are impractical. While it may seem appropriate to quash the Chairman's decision on the basis that it was the product of an improper subdelegation, it would be nonsensical to do so and to compel the Board to consider now Mobil Oil's 1990 application, since the result of the cross-appeal is that the Board would be bound in law to reject that application by the decision of this Court.

[52]       The bottom line in this case is thus exceptional, since ordinarily the apparent futility of a remedy will not bar its recognition: Cardinal, supra. On occasion, however, this Court has discussed circumstances in which no relief will be offered in the face of breached administrative law principles: e.g., [1979] 2 S.C.R. 561">Harelkin v. University of Regina, [1979] 2 S.C.R. 561. As I described in the context of the issue in the cross-appeal, the circumstances of this case involve a particular kind of legal question, viz., one which has an inevitable answer.

[53]       In Administrative Law (6th ed. 1988), at p. 535, Professor Wade discusses the notion that fair procedure should come first, and that the demerits of bad cases should not ordinarily lead courts to ignore breaches of natural justice or fairness. But then he also states:

A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless. [emphasis added]

In this appeal, the distinction suggested by Professor Wade is apt.

[56]            In this case, I have concluded that the breaches of the rules of natural justice could not have affected the outcome of the issues with the exception of the Leatherdale Memo.

[57]            The Leatherdale Memo is one relevant document not disclosed which may or may not have affected the outcome with respect to the appropriate sanction. Since the Commissioner's decision is set aside because of a reasonable apprehension of bias, I will refer the matter back to the External Review Committee to reopen the case and consider this memo with any viva voce evidence relevant to the memo. The External Review Committee shall revise its recommendations and report accordingly.

2.          Failure to allow new documents before the External Review Committee and Commissioner

[58]            The failure by the Committee and Commissioner to allow the applicant to introduce new evidence disclosed after the hearing constitutes a breach the rules of natural justice. However, I am satisfied that only the Leatherdale Memo may have affected the outcome, and only with respect to the sanction.

3.          Investigation and Prosecution was Biased

[59]            I deal with this natural justice issue under the following heading "Abuse of Process".

Fourth Issue: Abuse of Process

[60]            The applicant submits that the disciplinary proceeding was an abuse of process because of the oppressive and biased manner in which it was investigated and prosecuted.

[61]            The applicant submits that the disciplinary proceeding ought to have been stayed for abuse of process. The applicant submits that there was a biased intent by the RCMP at the investigator, prosecutor and senior management levels to fire the applicant for disclosing the confidential documents. The applicant also submits that the failure to disclose relevant documents before and throughout the hearing process constitutes an abuse.

[62]            Unfair or oppressive treatment of a party disentitles the Crown to carry on with the prosecution of a charge because the damage to the public interest in the fairness of the process exceeds the harm to the public interest in the prosecution of the charge. See Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paragraphs 119 and 120.

[63]            I cannot agree with the applicant on this issue. The manner in which the investigator, prosecutor and senior management pursued with vigour this case did not cross the line where the public would consider the process unfair or oppressive. The applicant admitted at the outset that he disclosed confidential police documents to a journalist, i.e. a person likely to publish these documents. This is a serious breach of trust, breach of loyalty and breach of the applicant's Oath of Secrecy. In these circumstances, it is not unreasonable, oppressive or unfair for the investigator, prosecutor and senior management to actively pursue the prosecution of the case.

[64]            With respect to the failure of the RCMP to disclose certain documents, the Court concludes that the failure to disclose relevant documents was not unfair or oppressive treatment. Rather, it was because the applicant was raising a number of issues which the RCMP lawyer did not realize or consider relevant since they did not relate to the reasons or circumstances surrounding the disclosure of confidential documents by the applicant.

[65]            The applicant obtained thousands of documents after the Adjudication Board hearing pursuant to a request under the Privacy Act. I have now reviewed the documents which the applicant considers most pertinent to the abuse of process issue, and I am satisfied that they do not disclose unfair or oppressive treatment of the applicant.

[66]            The documents prove that RCMP Headquarters was closely monitoring the investigation and disciplinary hearing. The Court considers this to be a normal part of the management function, i.e. dealing with a high profile alleged breach of security by an RCMP staff sergeant. That "intense interest" does not support a claim for abuse of process or bias.

[67]            The e-mails between the RCMP lawyer and witnesses are normal communication between a lawyer and witnesses for his client. Lawyers become familiar, and informal, with their witnesses. A prosecutor's job is to present the facts which support the reasonable grounds for laying the charge. That is part of the adversarial system.

[68]            The memorandum considering the removal of the applicant's security clearance prior to the completion of the Adjudication Board hearing does not prove bias or abuse of process. The applicant admitted that he disclosed confidential documents. It is reasonable prudence for the RCMP to ensure that the applicant not receive confidential documents pending the outcome of his disciplinary proceeding if the RCMP thinks that the applicant may disclose confidential documents again.

CONCLUSION

[69]            The Court concludes the following:

1.          the previous involvement of the Commissioner in the applicant's disciplinary case cannot but give rise to a reasonable apprehension, which reasonably well-informed persons could properly have, of a biased appraisal and judgment by the Commissioner. For that reason, the decision of the Commissioner must be set aside;

2.          the "whistle-blowing" defence does not apply because the disclosure of the confidential documents by the applicant was not for the purpose of exposing an illegal act by the RCMP or a policy which would jeopardize the life, health or safety of the public;

3.          the RCMP did fail to disclose relevant documents to the applicant before the Adjudication Board hearing and the Adjudication Board erred in failing to grant a motion to adjourn and require full and timely disclosure of relevant documents before the hearing commenced. This is a basic part of the rules of natural justice and the right to a fair hearing. However, this breach of the rules of natural justice could not have affected the outcome of the case with the exception of the Leatherdale Memo, which may or may not have affected the outcome with respect to the appropriate sanction. The Court will refer the matter back to the External Review Committee to reopen the case and consider the Leatherdale Memo together with any relevant viva voce evidence; and,

4.          contrary to the allegation of the applicant, the investigator, prosecutor and senior management of the RCMP processed this disciplinary case in a manner which was not oppressive, unfair, biased, or an abuse of process.

DISPOSITION

[70]            This application for judicial review will be allowed with costs, and the decision of the Commissioner dated June 18, 2002 will be set aside with the following directions in accordance with subsection 18.1(3) of the Federal Courts Act, R.S.C. 1985, c. F-7:

1.          the applicant's disciplinary case will be referred back to the same External Review Committee to consider the Leatherdale Memo in accordance with the Court's Reasons, and any relevant viva voce evidence with respect to the Leatherdale Memo, and further representations from the parties;

2.          the External Review Committee shall then revise its report and recommendations; and,

3.          the Commissioner shall delegate the appeal to the most senior RCMP officer not involved in the case to decide the appeal after allowing the parties to make representations.

[71]            As requested by the parties, the Court will consider submissions on whether the applicant should be awarded his travel costs to Ottawa. The parties have one week to file such submissions and one week thereafter to file reply submissions.

                                                  "Michael A. Kelen"                                                                                                                     _______________________________

         JUDGE

OTTAWA, Ontario

March 12, 2004

APPENDIX A

RELEVANT LEGISLATION

1.          Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10

2.          Royal Canadian Mounted Police Regulations, 1988, SOR/88-361

3.          Federal Courts Act, R.S.C. 1985, c. F-7

                                                                 FEDERAL COURT

                                                                    TRIAL DIVISION

                      NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                  T-1174-02

STYLE OF CAUSE:              ROBERT G. STENHOUSE v. ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:          Ottawa, Ontario

DATE OF HEARING:            February 9 and 10, 2004

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE KELEN

DATED:                                    March 12, 2004

APPEARANCES:

Mr. James Cameron and

Mr. Paul ChampFOR THE APPLICANT

Mr. Patrick Bendin and

Mr. Michael RoachFOR THE RESPONDENT

SOLICITORS ON THE RECORD:

Raven, Allen, Cameron & BallantyneFOR THE APPLICANT

Ottawa, Ontario

Mr. Morris RosenbergFOR THE RESPONDENT

Deputy Attorney General of Canada

                          FEDERAL COURT

                                                               Date: 20040312

                                             Docket: T-1174-02

BETWEEN:

ROBERT G. STENHOUSE

                                                                         Applicant

- and -

ATTORNEY GENERAL OF CANADA

                                                                     Respondent

REASONS FOR ORDER