Date: 20110609
Docket: T-1545-10
Citation: 2011 FC 661
Ottawa, Ontario, June 9,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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JAMIE BOSTON
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Applicant
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and
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ATTORNEY GENERAL OF CANADA, CBSA AND CBSA LEARNING CENTRE
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the decision that the Applicant employed
excessive force during his final evaluation of the Control and Defensive
Tactics (CDT) portion of Port of Entry Recruit Training (POERT). As a result,
the Applicant did not successfully complete the POERT program, which is a
condition of employment for all new Border Services Officers. The Applicant seeks
full time employment with all of the entitlements of a full time employee
including, but not limited to, seniority, benefits, pensions and back pay at
the Sault Ste Marie Port of Entry; restitution for the undue stress,
embarrassment, and pain and suffering caused by the entire process; a full
review of the operations at the Canada Border Service Agency Training Centre in
Rigaud Quebec; and his costs.
[2]
Based
on the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicant, Jamie Boston, participated in the Learning Centre course portion of
the Canada Border Services Agency (CBSA) POERT program from May to July of 2010
at the CBSA Training Centre in Rigaud, Quebec.
[4]
This
11 week course at the training centre follows a four-week online learning
module and precedes an in-service learning component. Collectively these three
stages make up the POERT program, which must be completed in order to be
appointed as a Border Services Officer with the CBSA.
[5]
Use
of Force is covered in the CDT portion of the POERT. The aim of the CDT
program is to educate officers about the proper response options available to
deal with situations in which the use of force is acceptable. Candidates
receive CDT instruction throughout the POERT program, and participate in learning
simulations. CDT is assessed in one dynamic simulation in which the candidate
interacts with a classmate who plays the role of an individual at a border-crossing.
B. Impugned
Decision
[6]
The
Applicant’s CDT assessment simulation consisted of a scenario in which a
truck-driver allowed the Applicant to examine the cargo, but not the cab of his
truck. Adam Alldridge, a classmate of the Applicant, played the role of the truck-driver
subject. The subject behaved in a non-cooperative manner and used phrases such
as, “It’s not going to happen today” and “you are not searching my cab,” while
standing with his feet planted outside the truck. The Applicant chose to
arrest the subject and control him by deploying Oleoresin Capsicum Spray (OC
Spray), an Intermediate Device.
[7]
The
assessors, Michael McBride and Jean Kiathavisack, both RCMP-certified
instructors, considered the behaviour of the subject to be clearly “non-cooperative”
as evidenced by the subject standing still, using a calm voice, and stating
that he “respectfully decline[d]” to cooperate with the search. The use of OC
Spray is only permitted where a subject is “resistant”, “combative” or where
there is risk of death or grievous bodily harm to the Officer or the public.
The assessors noted that at no time did the subject demonstrate behaviour that
they would classify as “resistant”. The Applicant therefore used a level of
force that was not consistent with the law or the Incident Management
Intervention Model (IMIM). As a result, the assessors determined that the
Applicant’s performance during the CDT assessment simulation was “Unacceptable”
and that he should not be certified in Control and Defensive Tactics.
[8]
This
result was reviewed at two levels. First the result was discussed with the
National Training Administrator and subsequently with the POERT Manager. The
assessment process was reviewed to ensure that the decision was well-founded
and justified. This process took two days, after which the Applicant was
informed of his result. Consequently, the Applicant was not able to complete
the POERT program.
II. Issues
[9]
The
issues raised in this application are:
(a) Should the Application be
dismissed because it is out of time?
(b) Was the decision of the
assessment officers reasonable?
III. Standard
of Review
[10]
The
Applicant makes no submission on the appropriate standard of review.
[11]
The
Respondent submits that the decision is discretionary in nature and far more
factual than legal. As per the Supreme Court’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 SCR 190, where the standard of review has not been determined in
a particular context the pragmatic and functional test continues to apply. In
the present matter, the Respondent argues that the nature of the question at
issue and the expertise of the decision maker suggest the proper standard of
review is reasonableness.
[12]
The
question at issue in the present matter involves as assessment of the
Applicant’s performance during the CDT simulation. The question is factual in
nature, and the assessors were in the best position to evaluate the Applicant’s
conduct vis a vis the subject. The assessors are RCMP-trained and certified
and have significant expertise in teaching CDT and evaluating CDT simulations.
Accordingly, the Court ought to defer to their findings, as long as they are
shown to be reasonable.
[13]
As
set out in Dunsmuir, above, a review on the standard of reasonableness
requires consideration of the existence of justification, transparency, and
intelligibility in the decision-making process. It is also concerned with
whether the decision falls within a range of acceptable outcomes that are
defensible in respect of the facts and law.
IV. Argument
and Analysis
A. Should
this Application be Dismissed Because it is Out of Time?
[14]
The
Respondent submits that this Application is out of time and ought to be
dismissed on this basis alone.
[15]
The
Applicant makes this Application pursuant to Rule 18.1 of the Federal Courts
Act, RSC 1985, C F-7. Subsection 18.1(2) states that an application for
judicial review shall be made within 30 days after the decision or order was
first communicated to the party. The decision at issue was communicated to the
Applicant on July 12, 2010. The Notice of Application was filed on September
22, 2010, 72 days after the decision was first communicated to the Applicant.
[16]
The
Court has discretion to grant an extension of time. The exercise of this
discretion should be with a view to ensuring that justice is done between the
parties. Regard should be had to the reasons for the delay and whether there
is an arguable case for setting aside the decision (Grewal v Canada
(Minister of Employment & Immigration), [1985] 2 FC 263, 63 NR 106
(CA)).
[17]
The
Applicant states in his Notice of Application that he was “misdirected” by the
CBSA to file a complaint with the Public Service Commission. He only realized
that he could file an application for judicial review in the Federal Court
after his complaint was rejected because the Public Service Commission found no
breach of the Public Service Employees Act, (S.C. 2003, c. 22, ss.
12, 13).
[18]
The
Applicant did not address the out of time issue in his submissions. While it
is understandable that the legal system is not easily navigated by those unfamiliar
with the practice and procedures required by law, ignorance alone is never a
good enough excuse when other parties are prejudiced by delays. There are no
details of the “misdirection” that is responsible for the delay.
[19]
The
Respondent takes the position that the Applicant erroneously implies that the
CBSA is under a duty to inform him of his legal rights.
[20]
It
is true that the CBSA cannot be held responsible for passing on legal advice to
disgruntled almost-employees, and this Court has held that receiving bad legal
advice does not justify granting an extension of time (Cove v Canada
(Minister of Citizenship and Immigration), 2001 FCT 266, 104 ACWS (3d)
761). However, those cases largely deal with an applicant entrusting the
management of their legal affairs to a lawyer or consultant.
[21]
The
30-day limit for commencing judicial review applications exits in the public
interest. Administrative decisions require finality in order to be effectively
implemented without delay. The time limit provides security to those who
comply with the decision or who enforce compliance (Berhad v Canada, 2005 FCA
267, 338 NR 75 at para 60). The Court should not disregard limits set in the
rules without good reason. However, given the circumstances of this case, I
will exercise my discretion in favour of the Applicant and consider the merits
of the application.
B. Was
the Decision Reasonable?
[22]
The
Applicant submits that the assessors erred in characterizing the subject’s
behaviour during the simulation as non-cooperative, when in his view the
subject’s use of the phrases “it’s not going to happen today” and “you are not
searching my cab” clearly moved him into the “resistant” category. In support
of this position he includes in his record a letter from Adam Alldridge.
Mr. Alldridge explains that he was instructed to act “non-cooperative” but
he made a mistake during the simulation and accidentally used the phrase, “it’s
not going to happen today.” He agrees with the Applicant that the use of this
phrase suggests his behaviour was better characterized as “resistant.” The
Applicant argues that this clear escalation from “cooperative” to “non-cooperative”
and finally to “resistant” justified the use of the OC Spray as supported by
the IMIM. The Applicant explains that he prioritized officer and public safety
in acting as he did.
[23]
The
Applicant further submits that it is unfair to base a candidate’s CDT knowledge
on one “flash” scenario, and that other inconsistencies in the training and
testing of candidates on CDT make the entire process unfair.
[24]
The
Respondent submits that the decision reached by the assessors was reasonable in
that they properly applied the policies and materials provided to the Applicant
when assessing his performance in the CDT simulation. The Respondent argues
that while it is true that Section One of the CDT Guide states that officer
safety is a priority, the Applicant was never threatened by the non-cooperative
subject in a manner that would necessitate the Applicant’s response. Section
One also states that the best strategy is to employ the minimum intervention
necessary to manage risk and the best intervention causes the least damage.
[25]
I
wholly accept the Respondent’s submissions on this point.
[26]
The
Applicant would have been justified in using his OC Spray if the subject had
been “resistant” or “combative” or if there was a risk of “death or grievous
bodily harm” to the officer or to the public.
[27]
Resistant
is defined at p 4 of the CDT materials as:
The subject resists control by
the officer. The subject displays signs of resistance such as: pulling away,
pushing away with the intent of not being controlled, running away, open and
angry verbal refusal to respond to verbal commands.
[28]
Combative
is defined at p 4 of the materials as:
The subject attempts or
threatens to apply force to anyone, eg. Punching, kicking, clenching fists with
intent to hurt, resist, threats of an assault
[29]
Death
or Grievous Bodily Harm is defined at p 5 of the materials as:
The subject exhibits a
behaviour that leads the officer to believe grievous bodily harm or death to
the public or the officer may result. For this level of risk to exist, the
presence of a weapon is not an essential element, as long as the fear of
grievous bodily harm or death exists. This threat level would be present in
the case of most weapons attacks, and of course, would include the threat of
use of such weapons, eg. knife, baseball bat, firearm, any weapon of
opportunity. Throughout the management of an incident, an officer should be
alert to threat cues such as body tension, tone of voice, body position and
facial expression to ready them to use an appropriate response option. These
threat cues may indicate the potential for a suspect to display more or less
resistant behaviours described under “categories of resistance”, that would
justify the use of different “response options”.
[30]
The
assessors noted no such behaviour. Jean Kiathavisack’s testing sheet noted
that the subject “respectfully” declined the search, and there was no
escalation. This observation is echoed by Michael McBride’s testing sheet on
which he noted that the subject was non-cooperative and used a calm voice when
refusing to consent to the search.
[31]
The
Respondent also notes that the Applicant admits in his own affidavit that the
subject displayed no intent to harm him, rather, he was worried about losing
control of the situation. As a result, the assessors concluded that he used
excessive force and did not use the intervention that constitutes the least
amount of force required to control the situation.
[32]
In
his submission, the Applicant explains why he chose to deploy the OC Spray.
However, it is not the role of this Court to re-weigh evidence and come to
factual conclusions which are better left to the assessors who have the necessary
expertise to make these decisions. The assessors’ findings are justified by
the comments made on their testing sheets. Contrary to the Applicant’s
submission, the assessors did note that the Applicant chose to arrest the
subject for hindering a search. It seems that the Applicant and the assessors
have a difference of opinion. Absent some indication that the assessors behaved
capriciously, or without regard for the evidence before them, this Court is
powerless to intervene.
[33]
Understandably,
the Applicant is upset and disappointed. The Applicant raises many criticisms
of the POERT learning centre course and in particular the method by which CDT is
assessed. However, an application for judicial review is not the proper venue
by which to debate the wisdom of internal policy decisions. Reference letters
in the record paint the Applicant’s professional experience as blemish-free and
speak to his capabilities. However, the Court is not in a position to
substitute its view of a more preferable outcome for one that is shown to be
reasonable.
[34]
The
assessors’ decision regarding the Applicant’s CDT assessment was justified,
transparent and intelligible, and therefore reasonable. The intervention of
this Court is not warranted.
V. Conclusion
[35]
In
consideration of the above conclusions, this application for judicial review is
dismissed and no costs will be awarded in this matter.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed
and no costs will be awarded in this matter.
“ D.
G. Near ”
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