Date: 20070529
Dockets: T-551-07
and T-580-07
Citation: 2007 FC 564
OTTAWA, Ontario, May 29,
2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
DEPUTY
COMMISSIONER BARBARA GEORGE
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
BETWEEN
DEPUTY
COMMISSIONER BARBARA GEORGE
Applicant
and
ATTORNEY GENERAL OF ONTARIO
Intervener
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
At
issue in these applications is the interplay between parliamentary privilege
and the jurisdiction of the Royal Canadian Mounted Police (RCMP) to investigate
an alleged perjury before a parliamentary committee.
[2]
These
reasons pertain to two applications for judicial review, each brought by Deputy
Commissioner Barbara George (the Applicant) of the RCMP pursuant to s. 18.1 of
the Federal Courts Act, R.S.C.
1985, c. F-7 (the Federal Courts Act). The applications were heard
together. In the first application, the Applicant seeks judicial review of decisions
by RCMP Commissioner Beverley Busson (Commissioner Busson) on March 30, 2007 to
investigate whether the Applicant had contravened the RCMP members’ Code of
Conduct (the Code of Conduct Investigation) and to suspend the Applicant with
pay pending that investigation. In the second application, the Applicant requests
the court review RCMP Chief Superintendent Robert Paulson’s (C/Supt.
Paulson) decision on April 3, 2007 to
initiate a criminal investigation into allegations made against the Applicant
(the Criminal Investigation). Among other remedies, the Applicant is asking the
court to quash and declare both investigations invalid.
[3]
As
a preliminary matter, the parties agreed that although the initial applications
for judicial review respectively named Commissioner Busson and C/Supt. Paulson
as Respondents, neither application was challenging a decision made by the
named persons in their private capacity. Therefore, naming them personally was
incorrect pursuant to s. 23 of the Crown Liability and Proceedings
Act, R.S.C. 1985, c. C-50,
and the sole Respondent in both applications ought to be the
Attorney General of Canada. The style of cause has been amended accordingly.
[4]
For
contextual purposes, it is worth noting that the decisions implicated in these
applications were made, at least in part, in response to allegations against
the Applicant which surfaced during parliamentary hearings into the Auditor
General’s findings of impropriety regarding the administration of the RCMP’s
pension and insurance funds.
[5]
For
the reasons set out below, I have concluded that the first application
pertaining to the Code of Conduct Investigation ought to be granted in part and
that the second application relating to the Criminal Investigation ought to be
dismissed.
PART I – BACKGROUND FACTS
[6]
The
Applicant is a 29 year veteran career officer with the RCMP. In October 2003,
she was appointed Chief Human Resources Officer and in that role she served on
the RCMP Senior Executive Committee. In June 2006, the Applicant became Deputy
Commissioner Human Resources.
[7]
On
February 21, 2007, the Applicant, Commissioner Busson, and other officials
appeared as witnesses before the House of Commons Standing Committee on Public
Accounts (Public Accounts Committee) in respect to its ongoing review of
Chapter 9, of the November 2006 Report of the Auditor General of Canada,
entitled “Pension and Insurance Administration – Royal Canadian Mounted
Police”.
[8]
In
the course of their Public Accounts Committee appearance, the Applicant and
other RCMP witnesses were asked questions regarding the Ottawa Police Service
investigation into allegations of wrongdoing respecting the RCMP pension and
insurance plans.
[9]
Subsequent
to the Applicant’s appearance, the Public Accounts Committee decided to
invite several additional witnesses to testify before the Committee on March
28, 2007, including Staff Sergeant Ron Lewis, Chief Superintendent Fraser
Macaulay, Staff Sergeant Steve Walker, and Staff Sergeant Michael Frizzell (the
RCMP Group).
[10]
On
March 26, 2007, two days before the RCMP Group appeared before the Public
Accounts Committee, the Applicant was asked to attend a private meeting with
Commissioner Busson. During this meeting, Commissioner Busson urged the
Applicant to step aside as Deputy Commissioner Human Resources and to step down
from the RCMP Senior Executive Committee.
[11]
The
Applicant was reluctant to step aside from her position in the absence of any
evidence of wrongdoing on her part. However, the Applicant ultimately agreed to
do so because she was concerned that she could not fully and effectively discharge
her duties under the circumstances.
[12]
On
March 27, 2007, the Applicant and Commissioner Busson signed a formal written
agreement which reflected the arrangements made in the course of the meeting the
previous evening. Under the terms of the agreement the Applicant was granted a
combination of Pre-Retirement Leave and Educational Leave to complete her
Masters Degree in Criminology at Simon Fraser University.
[13]
On
March 28, 2007, the RCMP Group appeared before the Public Accounts Committee.
In the course of the Group’s testimony, several allegations were made against
the Applicant both by witnesses from the Group and by individual Committee Members.
These allegations received considerable media attention in the days that
followed.
[14]
At
1:45 p.m. on March 29, 2007, the Minister of Public Safety held a televised
press conference at which he announced his decision to initiate an independent
investigation into the allegations made during the Public Accounts Committee’s
meeting of March 28, 2007.
[15]
At
4:00 p.m. on March 29, 2007, Commissioner Busson held a televised conference to
announce her support for the Minister of Public Safety’s decision and that the
RCMP would cooperate fully with the independent investigation. During that
conference, Commissioner Busson explained that while the Applicant had not been
fired from her position, her status was “under review”.
[16]
At
or about 5:30 p.m. on March 29, 2007, following an in camera meeting of
the Public Accounts Committee, the Applicant was informed of the Committee’s
decision to summon the Applicant, among others, to return as a witness to
address the allegations which had been made against her.
[17]
Later
in the evening of March 29, 2007, the Applicant learned that she would be the
subject of an internal investigation initiated by Commissioner Busson to
determine whether she had breached the RCMP’s Code of Conduct. The Applicant
was further informed that she would likely be suspended with pay from the RCMP
as a result of this investigation.
[18]
On
the morning of March 30, 2007, the Applicant received formal written notice of
the internal Code of Conduct Investigation and suspension. Among the reasons
given for her suspension was the allegation that the Applicant had given false
testimony to the Public Accounts Committee on February 21, 2007.
[19]
On
April 3, 2007, C/Supt. Paulson, the RCMP officer mandated by Commissioner
Busson to conduct the internal disciplinary investigation, advised that he had
personally decided to initiate a collateral criminal investigation into the
allegation that the Applicant perjured herself before the Public Accounts
Committee.
PART II – ISSUES
[20]
The
issued raised in these applications for judicial review are as follows:
(a)
Whether
the grievance procedure under the RCMP Act provides an adequate
alternative remedy for the relief requested in these applications.
(b)
Whether
the Respondent has the jurisdiction to undertake a collateral criminal
investigation on the basis of testimony to the Public Accounts Committee.
(c)
Whether
the Respondent has the jurisdiction to undertake an internal Code of Conduct investigation
on the basis of testimony provided to the Public Accounts Committee and to
suspend the Applicant pending the investigation.
(d)
Whether
the Applicant was denied procedural fairness.
PART III – SUBMISSIONS OF
THE PARTIES
The Applicant’s Position
[21]
The
Applicant submits that parliamentary privilege provides that the testimony
given by witnesses before a committee of the House of Commons cannot be used
against them in any subsequent civil or criminal proceedings. As such, the
testimony given by the Applicant before the Public Accounts Committee on
February 21, 2007 is protected by parliamentary privilege and cannot be used
against her in the context of either an internal disciplinary investigation or
a criminal investigation. According to the Applicant, the RCMP does not have the
jurisdiction to undertake investigations into matters arising directly from her
testimony before the Public Accounts Committee.
Respondent’s Position
[22]
The
Respondent submits that this court lacks jurisdiction to grant much of the
relief sought by the Applicant. In the alternative, this court should decline
to exercise any jurisdiction it may have on the ground that both applications
for judicial review are premature. First, the remedies provided by the
grievance process under Parts III and IV of the Royal Canadian
Mounted Police Act, R.S.C. 1985, c. R-10 (the RCMP Act), are
adequate alternatives for what the Applicant seeks from judicial review of the Code
of Conduct Investigation. Second, the Federal Court does not have the requisite
jurisdiction to review the decision to initiate the Criminal Investigation. According
to the Respondent, it would be unprecedented and contrary to public policy for
this court to interfere with ongoing RCMP investigations and to determine
matters prior to any disciplinary action being taken or any charges being laid.
Any evidentiary or procedural concerns ought to be addressed as the
investigations unfold or in any subsequent proceedings.
PART IV – ANALYSIS
A. Adequate
Alternative Remedy
[23]
As
a threshold issue, it is necessary first to consider whether the RCMP grievance
process provides for an adequate alternative remedy for the relief requested by
the Applicant in these applications.
[24]
Both
parties agreed that the adequate alternative remedy principle does not apply to
the application for judicial review regarding the Criminal Investigation
because the grievance process outlined in the RCMP Act does not offer
any form of relief to those implicated in a criminal investigation.
[25]
With
regard to the Code of Conduct Investigation, the Applicant submits that the
grievance process outlined in Part III of the RCMP Act does not
constitute an adequate alternative remedy in this case due to the unique
circumstances at issue, the length and complexity of the process and its
inability to provide the relief requested for the Applicant. Further, the
Applicant says that the RCMP does not have the jurisdiction to conduct an
investigation into matters which are clearly protected by parliamentary
privilege. The Applicant relies on Griffin v. Summerside (City)
Director of Police Services, (1998) 159 D.L.R. (4th) 698, at
para. 49, for the proposition that an application for judicial review to
prohibit an administrative tribunal from proceeding may be sought as soon as
the absence of jurisdiction is clearly foreseen.
[26]
On
the other hand, the Respondent argues that the application regarding the Code
of Conduct Investigation is really a disguised grievance that must be dealt
with in accordance with Parts III of the RCMP Act before recourse is
made to the Federal Court: Prentice v. Canada (Royal Canadian Mounted Police), 2005 FCA 395.
Given the preliminary stage of the investigations, and given that the RCMP
Act creates a comprehensive scheme for the resolution of workplace
disputes, which allows for grievances to be brought with respect to any
decision, the Respondent submits that the court should decline to exercise its
jurisdiction.
[27]
As
general rule, if an administrative regime provides for an adequate remedial
process, applicants ought to exhaust that alternative before challenging
administrative decisions in the courts. When applying the adequate alternative remedy
doctrine, courts have considered a variety of factors in determining whether
they should enter into judicial review or require an applicant to proceed
through a statutory appeal procedure. These factors include: “the convenience
of the alternative remedy, the nature of the error and the nature of the
appellate body (i.e. its investigatory, decision-making and remedial
capacities)”: Canada Pacific Ltd. V. Matsqui Indian Band, [1995] 1
S.C.R. 3 at para. 37. The category of factors is not closed, and it is for the
courts in the particular circumstances of the case to balance the relevant factors.
[28]
In
regards to the convenience of the RCMP grievance process, the Applicant
submitted the affidavit, sworn on April 16, 2007, of RCMP Staff Sergeant Greg
Melvin Nixon (the Nixon Affidavit). The Nixon Affidavit confirms that
completing the grievance process can take “several months if not a year or
more” and that it would not be possible to complete “the process in a matter of
weeks”. The Respondent did not contest this assertion. In my view, this
evidence clearly establishes that the statutory grievance process is lengthy
and not suitable for resolving a discrete preliminary dispute over
jurisdiction.
[29]
As
I discuss below, the nature of the error alleged in the present case is
jurisdictional and beyond the expertise of the Commissioner. I do not accept
the Respondent’s characterization that this application for judicial review is
merely a disguised grievance for which redress is provided by the RCMP Act.
At this time, the court is not reviewing the factual basis for the Applicant’s
suspension or whether she ought to have been relieved of her duties. Rather,
these judicial reviews are concerned with the discrete preliminary question of
whether the immunity provided by parliamentary privilege precludes RCMP
investigations allegedly based on witness testimony before a parliamentary
committee. This matter goes to the scope of activity
covered by the privilege, and is ultimately within the province of the
judiciary. As such, the Applicant ought to be allowed the opportunity to have
the question determined with the force of res judicata by the Federal
Court at the outset and not be compelled to proceed through a lengthy and
possibly needless internal appeal process: see Justice La Forest in
concurring reasons in Matsqui, at para. 107.
[30]
I
note parenthetically that regardless of whether the present applications are
granted or not, the court’s determinations will at the very least also provide
guidance to the RCMP in regards to its rights and obligations going forward.
[31]
Given
the extended internal grievance process under the RCMP Act, the
potential waste of the Applicant’s and the RCMP’s resources, and the
jurisdictional nature of the primary alleged error, I am satisfied that the
grievance procedure does not constitute an adequate alternative means of
answering the questions posed by the Applicant in this review.
B. Criminal
Investigation
a. Intervention
of the Attorney General of Ontario
[32]
On
April 26, 2007, the Attorney General of Ontario (AGO) filed a motion to
intervene in these proceedings, pursuant to s. 109 of the Federal
Courts Rules, SOR/98-106, on the basis that he would assist in the
determination of the legal issues relating to the Criminal Investigation.
[33]
After
hearing his representations, I was satisfied that the AGO has a constitutional
and statutory interest in these proceedings, particularly in how they relate to
the criminal justice system, and that his participation would assist the court
in deciding the issues related to the Criminal Investigation. The Motion to
intervene is granted and the Attorney General of Ontario will be added to the
style of cause as an Intervener.
b. Jurisdiction
of the Federal Court to entertain an application for judicial review in the
course of a criminal investigation by the RCMP
[34]
There
is no dispute between the parties that the reason for the criminal
investigation currently being conducted by C/Supt. Paulson is to
determine whether the Applicant contravened s. 131 of the Criminal
Code, R.S.C. 1985, c. C-46, and s. 12 of the Parliament of Canada
Act, R.S.C. 1985, c. P-1, during her appearance before the Public Accounts
Committee on February 21, 2007. Those respective sections read as follows:
|
Perjury
131. (1) Subject to subsection (3), every one
commits perjury who, with intent to mislead, makes before a person who is
authorized by law to permit it to be made before him a false statement under
oath or solemn affirmation, by affidavit, solemn declaration or deposition or
orally, knowing that the statement is false.
|
Parjure
131. (1) Sous réserve du paragraphe (3), commet un parjure quiconque
fait, avec l’intention de tromper, une fausse déclaration après avoir prêté
serment ou fait une affirmation solennelle, dans un affidavit, une
déclaration solennelle, un témoignage écrit ou verbal devant une personne
autorisée par la loi à permettre que cette déclaration soit faite devant
elle, en sachant que sa déclaration est fausse.
|
|
Perjury
12. Any
person examined under this Part who wilfully gives false evidence is liable
to such punishment as may be imposed for perjury.
|
Parjure
12.
Quiconque, étant interrogé dans le cadre de la présente
partie, fait délibérément un faux témoignage encourt les peines prévues en
cas de parjure.
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[35]
The
Applicant takes the same position towards the criminal investigation as towards
the internal Code of Conduct Investigation, i.e. that the Criminal Investigation
into allegations of perjury based on the Applicant’s testimony before the
Public Accounts Committee would constitute a breach of the parliamentary
privilege and is therefore unlawful.
[36]
The
Respondent first submits that it is not clear that a decision of a peace
officer made in the course of a criminal investigation is even amenable to judicial
review under s. 18.1 of the Federal Courts Act. Second, regardless of
whether the decisions of peace officers to initiate criminal investigations are
subject to judicial review, the Respondent argues that courts must be reluctant
to interfere with normal police powers of investigation.
[37]
The Intervener goes even farther. The AGO argues
that the decision by C/Supt. Paulson to engage in an investigation of
the Applicant is not justiciable and that a person under criminal investigation
cannot apply to a court to have the investigation terminated. Accordingly, the
Federal Court has no jurisdiction to declare C/Supt. Paulson’s criminal
investigation invalid or to enjoin his investigation. Both the Respondent and
the Intervener stress that when C/Supt. Paulson decides to initiate a
criminal investigation, he is acting in his capacity as a peace officer, not as
an agent of a government body. The independence of the police when acting in
their capacity as criminal investigators is an important principle embraced by
the rule of law and premised on the necessity of peace officers being free to
make inquiries into criminal allegations without undue interference by the
executive or Parliament.
[38]
I am inclined to agree with the Respondent and
Intervener with regard to the criminal investigation. I am not convinced that
the Federal Court has the requisite jurisdiction to sit in review of a peace
officer’s decision to initiate a criminal investigation. The Federal Court is a
statutory court that derives all of its jurisdiction from the Federal Courts
Act and, unlike provincial superior courts, it has no general or inherent jurisdiction
to deal with criminal matters: see Letourneau v. Clearbrook Iron Works Ltd.,
2005 FC 333, at para. 9. While the Federal Court does have limited criminal
jurisdiction, for examples see s. 4 of the Federal Courts Act and s. 472
of the Federal Courts Rules, SOR/98-106, this jurisdiction is
circumscribed by express or implied statutory provisions.
[39]
The traditional jurisdiction test for the Federal Court was set
out by Justice McIntyre in ITO-International Terminal Operators Ltd. v.
Miida Electronics Inc., [1986] 1 S.C.R. 752, at p. 766:
1. There
must be a statutory grant of jurisdiction by the federal Parliament.
2. There must
be an existing body of federal law which is essential to the disposition of the
case and which nourishes the statutory grant of jurisdiction.
3. The law
on which the case is based must be “a law of Canada” as the phrase is used in s. 101 of the Constitution
Act, 1867.
[40]
The
first branch of the ITO test requires the Applicant to establish an
express or implied grant of jurisdiction which authorizes the Federal Court to
quash and declare invalid a criminal investigation.
[41]
The
Applicant applied for judicial review of C/Supt. Paulson’s
decision to initiate a criminal investigation pursuant to s. 18.1 of the Federal
Courts Act. The remedies under s. 18.1 are available only in relation to
decisions of “a federal board, commission or other tribunal”. The term “federal
board, commission or other tribunal” is defined in s. 2 of the Federal
Courts Act as follows:
|
"federal
board, commission or other tribunal" means any body, person or persons
having, exercising or purporting to exercise jurisdiction or powers conferred
by or under an Act of Parliament or by or under an order made pursuant to
a prerogative of the Crown, other than the Tax Court of Canada or any of its
judges, any such body constituted or established by or under a law of a
province or any such person or persons appointed under or in accordance with
a law of a province or under section 96 of the Constitution Act, 1867.
[Emphasis added.]
|
«office fédéral »
"federal board, commission or other tribunal"
«office fédéral » Conseil, bureau, commission ou autre
organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé
exercer une compétence ou des pouvoirs prévus par une loi fédérale ou
par une ordonnance prise en vertu d'une prérogative royale, à l'exclusion de
la Cour canadienne de l'impôt et ses juges, d'un organisme constitué sous le
régime d'une loi provinciale ou d'une personne ou d'un groupe de personnes
nommées aux termes d'une loi provinciale ou de l'article 96 de la Loi
constitutionnelle de 1867. [mon soulignement.]
|
[42]
The
question then becomes whether C/Supt. Paulson’s decision to criminally
investigate the Applicant involved him exercising powers conferred on him by an
Act of Parliament. Sections 5 and 9 of the RCMP Act provide some
guidance in this regard. They read as follows:
|
5. (1) The Governor in
Council may appoint an officer, to be known as the Commissioner of the Royal
Canadian Mounted Police, who, under the direction of the Minister, has the
control and management of the Force and all matters connected therewith.
|
5. (1) Le
gouverneur en conseil peut nommer un officier, appelé commissaire de la
Gendarmerie royale du Canada, qui, sous la direction du ministre, a pleine
autorité sur la Gendarmerie et tout ce qui s’y rapporte.
|
|
9. Every officer and every person
designated as a peace officer under subsection 7(1) is a peace officer in
every part of Canada and has all the powers, authority, protection and
privileges that a peace officer has by law until the officer or person is
dismissed or discharged from the Force as provided in this Act, the
regulations or the Commissioner’s standing orders or until the appointment of
the officer or person expires or is revoked.
|
9. Les officiers ont qualité d’agent de la paix partout au Canada,
avec les pouvoirs et l’immunité conférés de droit aux agents de la paix, au
même titre que les personnes désignées comme telles en vertu du paragraphe
7(1), jusqu’à leur renvoi ou leur congédiement de la Gendarmerie dans les
conditions prévues par la présente loi, ses règlements ou les consignes du
commissaire ou jusqu’à l’expiration ou la révocation de leur nomination.
|
[43]
The
Applicant suggested at the hearing that these sections constitute a grant of
police powers on RCMP officers by Parliament and, therefore, are sufficient to
bring C/Supt.
Paulson’s decision
within the scope of the Federal Court’s review jurisdiction.
[44]
I
disagree. While
I recognize that the powers of peace officers are incorporated into the RCMP
Act, nevertheless, it is well established that when peace officers conduct
criminal investigations they are acting pursuant to powers which have their
foundation in the common law independent of any Act of Parliament or Crown
prerogative. In other words, the RCMP Act imports and clothes with
statutory authority police powers, duties and privileges which remain largely
defined by common law: Doe v. Metropolitan Toronto
(Municipality) Commissioners of Police (1990), 74 O.R. (2d) 225
(Div. Ct.).
[45]
The
Supreme Court of Canada clearly set out the relationship between the
police and the executive government when the police are engaged in law
enforcement
in R. v. Campbell, [1999] 1 S.C.R. 565. Justice Binnie, for a
unanimous court, wrote at paragraph 27 that:
A police
officer investigating a crime is not acting as a government functionary or as
an agent of anybody. He or she occupies a public office initially defined
by the common law and subsequently set out in various statutes. In the
case of the RCMP, one of the relevant statutes is now the Royal Canadian
Mounted Police Act, R.S.C., 1985, c. R-10.
[46]
While for certain purposes the RCMP could be acting in an agency
relationship with the Crown, when an RCMP officer is in the course of a criminal
investigation, he or she is independent of the
control of the executive government: Campbell, at para. 31. This is why
police investigating crimes do not enjoy the Crown’s public interest immunity: Campbell,
at para. 27. In short, when investigating crimes peace officers are not subject
to political direction; rather they are answerable to the law and, no doubt, to
their conscience: Campbell, at para. 33.
[47]
In support of this finding of police independence, the court in Campbell
at paragraph 33 cited with approval Lord Denning in R. v. Metropolitan
Police Comr., Ex parte Blackburn, [1968] 1 All E.R. 763 (C.A.), at 769:
I have no hesitation, however, in
holding that, like every constable in the land, he [the Commissioner of
Police] should be, and is, independent of the executive. He is not
subject to the orders of the Secretary of State, save that under the Police Act
1964 the Secretary of State can call on him to give a report, or to retire in
the interests of efficiency. I hold it to be the duty of the Commissioner
of Police, as it is of every chief constable, to enforce the law of the
land. He must take steps so to post his men that crimes may be detected;
and that honest citizens may go about their affairs in peace. He must
decide whether or not suspected persons are to be prosecuted; and, if need be,
bring the prosecution or see that it is brought; but in all these things he
is not the servant of anyone, save of the law itself. No Minister of
the Crown can tell him that he must, or must not, keep observation on this
place or that; or that he must, or must not, prosecute this man or that
one. Nor can any police authority tell him so. The responsibility
for law enforcement lies on him. He is answerable to the law and to the
law alone. [Emphasis added.]
[48]
The proposition flowing from the above jurisprudence that police
conducting criminal investigations are independent of the Crown is buttressed
by Professor Ken Roach’s recent observations in “The Overview: Four Models of
Police-Government Relations”,
Research Papers Commissioned by the Ipperwash Inquiry (2007), online: The Ipperwash Inquiry <http://www.ipperwashinquiry.ca/policy_part/meetings/pdf/Roach.pdf>.
At page 76 of his article, Professor Roach concludes that, while there is still
much dispute about the scope of police independence beyond the criminal
investigation sphere, “there seems to be growing consensus that the police
should be protected from political direction in the process of criminal
investigation.”
[49]
In
light of the above jurisprudence and commentary, I am not persuaded that C/Supt.
Paulson’s decision to initiate a criminal investigation against the Applicant
is properly characterized as a decision by a “federal board, commission or
other tribunal” and, therefore, that the Federal Court has the requisite
jurisdiction to review his decision pursuant to s. 18.1 of the Federal
Courts Act.
[50]
Moreover,
even if the Federal Court had the jurisdiction to quash a criminal
investigation, I am even less convinced that the Federal Court would be the
most appropriate forum to entertain the Applicant’s challenge to C/Supt.
Paulson’s investigation. Quashing a criminal investigation is really a question
of criminal procedure, an area in which the provincial superior courts because
of their inherent criminal jurisdiction have developed greater relative
expertise and specialization than the Federal Courts. It would be most unusual
for the Federal Courts to venture into a realm of what is essentially criminal
procedure: see Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, per Justice
La Forest, at 84. If the RCMP were to lay criminal charges against the
Applicant and the matter was to proceed to a criminal trial, the evidence would
not be heard and the ultimate decision would not be made in this court.
Different considerations come into play in the criminal justice system than
those related to the major function of the Federal Courts, which is to deal
with questions of an administrative and civil character and other matters of
particular federal concern: Kourtessis v. M.N.R., per Justice La Forest,
at 84.
[51]
As
I discuss below, parliamentary privilege is an important principle under
Canadian law, no less important than police independence. Both play important
roles in maintaining the appropriate degree of separation between different branches
of government. Both are designed to protect particular spheres of power, both
of which are integral to the functioning of our constitutional democracy.
However, given the limitations on this court’s power to decide criminal matters
and to grant the remedy the Applicant seeks, wisdom dictates that this court
should not interfere with the RCMP’s discretion to pursue a criminal
investigation.
[52]
This
is not to say that the Applicant would be without recourse in any subsequent
criminal proceedings. It is clear that any issue with respect to
parliamentary privilege remains alive and that the admissibility of any
evidence which derives directly from the Applicant’s testimony before the
Public Accounts Committee will have to be addressed when the criminal
investigation unfolds. Canadian law provides an elaborate system of checks and
balances to protect the rights of suspects and the accused. The laws of
evidence dictate what may be used against an accused in a criminal trial. A
person under police investigation has the rights and freedoms guaranteed by the
Charter and once a person is charged with an offence, the procedural
protections of the Criminal Code buttress the Charter rights of
the accused.
[53]
In
summary, I decline to review C/Supt. Paulson’s decision on the ground that,
even if the Federal Court has the necessary jurisdiction, it would be inappropriate,
under the circumstances of the case and at this early stage, for this court to
quash and invalidate the Criminal Investigation.
C. Internal Code
of Conduct Investigation
[54]
In
addition to the application relating to the Criminal Investigation, the
Applicant is also seeking judicial review of two decisions made by Commissioner
Busson dated March 30, 2007: 1) to initiate an internal investigation, pursuant
to s. 40(1) of the discipline provisions of the RCMP Act, into
allegations that the Applicant breached ss. 39(1) of the Royal
Canadian Mounted Police Regulations, 1988, SOR/88-361 (the RCMP Regulations); and 2) to
suspend the Applicant from her duties with pay pursuant to s. 12.1 of the RCMP
Act, and provisions of the Administrative Manual XII.5.D, pending the
outcome of the Code of Conduct Investigation.
[55]
In
contrast to the Criminal Investigation, there is no serious dispute that the
Federal Court has the requisite jurisdiction to review Commissioner Busson’s
decisions pertaining to the Code of Conduct Investigation. Clearly, the
Commissioner’s powers to suspend officers and to initiate internal administrative
investigations into a member’s conduct derive from the RCMP Act itself and,
therefore, are amenable to judicial review under s. 18.1 of the Federal
Courts Act.
a. Applicable
Standard of Review
[56]
The
primary question raised in this application relates to the scope of
parliamentary privilege. Specifically, whether this privilege precludes the
RCMP from conducting an internal investigation into allegations of perjury,
among others, against a RCMP Deputy Commissioner on the basis of testimony she gave
before a House of Commons Committee.
[57]
In
my view, this is a pure question of law involving the separation of powers and,
therefore, correctness is the applicable standard of review. The court owes no
deference to Commissioner Busson’s decisions to initiate an internal Code of
Conduct Investigation, and to suspend the Applicant pending that investigation,
in so far as they touch on parliamentary privilege. I have reached this
conclusion based on a consideration of the four factors enunciated in Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1
S.C.R. 982, at paras. 29-38. In this instance, three of the four factors point notably
toward a more searching standard of review. Even when issues lend themselves to
a “jurisdictional” characterization, such as in the present case, the pragmatic
and functional analysis must not be skipped: ATCO Gas & Pipelines Ltd. v.
Alberta (Energy & Utilities Board), [2006] 1 S.C.R. 140,
at para. 23.
1. Privative
clause:
Section 32(1) of the RCMP Act provides that the Commissioner’s
decision in respect of any grievance 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. Although the strength of the privative clause is
undermined by the express provision of a right of review in this court, the
overall meaning of section 32(1) suggests some degree of deference.
2. The relative
expertise:
With respect to relative expertise, deference is called for only when the
decision maker is in some way more expert than the court and the question under
consideration is one that falls within the scope of the greater expertise: Dr.
Q v. College of Physicians and Surgeons of British Columbia, [2003] 1
S.C.R. 226, at para. 28. As set out above, the central question in the present case
is how the immunity provided by parliamentary privilege impacts a RCMP internal
investigation based, in part at least, on witness testimony before a
parliamentary committee. This is primarily a legal question within the province
of the judiciary. It involves the separation of powers and it strays from the
RCMP’s core areas of expertise. Since the court has more relative expertise than
the Commissioner on this issue, the second factor points to a more searching
standard of review.
3. Purpose of
the statute and the relevant provision: The nature of the
question under consideration, i.e. the interplay between parliamentary
privilege and the RCMP’s powers to investigate, does not fit easily within the
general purpose of the RCMP Act, which is to provide a police force for
Canada (s.3), and reviewing Commissioner Busson’s decisions does not involve a
polycentric balancing exercise. Rather, the particular grievance provisions
implicated in this review seek to resolve a dispute between RCMP members and
the Commissioner (s. 31(1)). Since this statutory dispute mechanism approximates
the judicial paradigm, this factor also suggests less deference.
4. The nature of
the question: As discussed above, the nature of the question under
review is a pure question of law. This factor also suggests that more judicial
scrutiny is warranted in this case.
b. Parliamentary
Privilege
i.
The
Law
[58]
Parliamentary
privilege is one of the ways in which the fundamental constitutional separation
of powers is respected: Canada (House of Commons) v. Vaid,
[2005] 1 S.C.R. 667, at para. 21. The principle is designed to prevent courts or
other entities from interfering with Parliament’s legitimate sphere of
activity. In Canada, the
privilege originates from both the common law and the Constitution Act, 1867
which calls for a “Constitution similar in Principle to that of the United
Kingdom”.
Prior to Confederation, absent a specific grant from
the Parliament of the United Kingdom, the common law principle was well
established: privileges that were necessarily incidental to a legislature were
deemed to exist: J.P. Maingot, Le privilège parlementaire au Canada, 2nd
ed., (Ottawa: House of Commons and McGill-Queen's University Press, 1997), at
16. Today, the privilege enjoys the same constitutional weight and status
as the Charter: Vaid, at para. 34.
[59]
Writing with respect to the historical tradition of parliamentary
privilege, Justice McLachlin, as she then was, writing for the majority in New
Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House
of Assembly), [1993] 1 S.C.R. 319, stated at page 378:
It has long been accepted that in
order to perform their functions, legislative bodies require certain privileges
relating to the conduct of their business. It has also long been accepted
that these privileges must be held absolutely and constitutionally if they are
to be effective; the legislative branch of our government must enjoy a certain
autonomy which even the Crown and the courts cannot touch.
[60]
Justice
Binnie, writing for a unanimous court, summarized the legal test for
parliamentary privilege in Vaid at para. 46:
In order to sustain a claim of
parliamentary privilege, the assembly or member seeking its immunity must show
that the sphere of activity for which privilege is claimed is so closely and
directly connected with the fulfilment by the assembly or its members of their
functions as a legislative and deliberative body, including the assembly’s work
in holding the government to account, that outside interference would undermine
the level of autonomy required to enable the assembly and its members to do
their work with dignity and efficiency.
[61]
The
first step a Canadian court is required to take in determining whether or not a
privilege exists is to ascertain whether the existence and scope of the
privilege have been authoritatively established in relation our Parliament: Vaid,
at para. 39. Some categories, such as freedom of speech in the House and the
authority to discipline members for example, have long been recognized as
established categories of privilege, justified by the exigencies of parliamentary
work: Vaid, at para. 29.
[62]
In
the present case, a former witness before the Public Accounts Committee seeks
to invoke parliamentary privilege to preclude the RCMP from investigating her on
the basis of testimony she gave before that committee. The Applicant submits that
this claim to privilege fits squarely within the category and scope of
privilege recently recognized by this court in Gagliano
v. Canada (Attorney General), 2005 F.C. 576. In that decision, I
concluded that the power to preclude
cross-examination of witnesses using evidence obtained in previous proceedings
of Parliament falls within the scope of parliamentary privilege because it is
necessary for the functioning of Parliament.
[63]
While
I do not intend to fully canvass the reasons in Gagliano, it is worth
emphasizing several key justifications for providing
immunity to a parliamentary witness’ testimony. First, although witnesses
before a parliamentary committee are not Members of Parliament, they are not strangers
to the House either. Rather they are guests who are afforded parliamentary
privilege because, as with members, the privilege is necessary to ensure that they
are able to speak openly, free from the fear that their words will be used
against them in subsequent proceedings: Gagliano, at para. 77. This is related to the more general idea "that whatever is
done or said in either House should not be liable to examination
elsewhere": Stockdale v. Hansard (1839), 9 Ad. & E.I. 1112
(Q.B.) at 1191. Given the overriding importance of the House of Commons as “the
grand inquest of the nation”, it is fundamental that members and witnesses
alike are not inhibited from stating fully and freely what they have to say: Prebble
v. Television New Zealand, [1995] 1 A.C. 321 (P.C.).
[64]
Second, without the power to protect witnesses, Parliament’s
investigative function would be seriously compromised because witnesses would
be less forthcoming: Gagliano, at para. 83.
[65]
Finally, if Parliament has reason to believe that a
witness has deliberately misled the House, it is up to Parliament, and
Parliament alone, to initiate proceedings and discipline such conduct.
Misleading the House is contempt of the House punishable by the House: if a
court or another entity was allowed to inquire into whether a member or a
witness had misled the House, this could lead to exactly the type of conflict
between two spheres of government that the wider principle of parliamentary
privilege is designed to avoid. The courts would be trespassing on Parliament’s
jurisdiction: Pepper v. Hart, [1993] A.C. 593 (H.L.); Hamilton
v. Al Fayed, [2000] 2 All E.R. 224 (H.L).
ii.
The
Decisions of Commissioner Busson
[66]
Commissioner
Busson’s letter to the Applicant dated March 30, 2007 explains that the
Commissioner decided to initiate a Code of Conduct Investigation under s. 40 of
the RCMP Act as a result of the Applicant’s testimony before the Public
Accounts Committee on February 21, 2007, and the testimony of the RCMP Group on
March 28, 2007.
[67]
The
formal Notice of Suspension, also dated March 30, 2007, informed the Applicant
that pursuant to s. 12.1 of the RCMP Act she was suspended with pay
pending the outcome of the investigation. The notice also set out three
specific allegations against the Applicant, which explained why she was being
investigated and suspended. The allegations read as follows:
- That
on, or about September 19, 2003, at or near Ottawa, Ontario, you did conduct
yourself in a disgraceful manner that could bring discredit on the Force.
During a meeting with Chief Superintendent Fraser Macaulay, you advised
him that he was on an island by himself and that others would not tell the
truth. You explained that Chief Superintendent Macaulay was naïve to think
anyone would stand beside him in this type of situation. This is contrary
to subsection 39(1) of the Royal Canadian Mounted Police
Regulations, 1988.
- That
on February 21, 2007, during an appearance before the Standing Committee
on Public Accounts, at or near Ottawa, Ontario, you did conduct yourself
in a disgraceful manner that could bring discredit on the Force, by giving
false testimony, contrary to subsection 39(1) of the Royal
Canadian Mounted Police Regulations, 1988.
- That
between February 21, 2007, and March 28, 2007, at or near Ottawa, Ontario,
you did conduct yourself in a disgraceful manner that could bring
discredit on the Force in that, knowing that you had been involved,
directly or indirectly, in Staff Sergeant Mike Frizzell’s removal and
knowing that I had undertaken, as Commissioner of the RCMP, to provide the
Standing Committee on Public Accounts with all of the information
pertaining to Staff Sergeant Frizzell’s removal, you failed to inform me,
your superior officer, of the above. Failing to disclose the extent of
your involvement has resulted in an incomplete response being provided to
the Committee. This failure to disclose your involvement is contrary to
subsection 39(1) of the Royal Canadian Mounted Police
Regulations, 1988.
[68]
The
Applicant makes the general submission that Commissioner Busson’s choice to
notify the media and other RCMP members of her decisions “was extremely
prejudicial to the Applicant” in the face of Parliament’s and the Minister’s
ongoing investigations. With respect, I believe this goes too far. In response,
I would simply say that a decision to suspend an officer with pay
pending an investigation is essentially a non-judgmental and non-disciplinary
decision: see Griffin v. Summerside (City) Director of Police
Services,
at para. 30. It is a preliminary decision to verify factual allegations and it does
not presume guilt. Further, the allegations of wrongdoing respecting the RCMP
pension and insurance plans were clearly part of the public arena prior to any
public announcements by the Commissioner of the suspension. The Public Accounts
Committee began its public hearings into the Auditor General’s report on
February 21, 2007.
[69]
The
Respondent submits that the first and third allegations do not originate from
the proceedings of the Parliamentary Committee and, since they come from
sources other than testimony before the House, do not offend parliamentary
privilege. Therefore, the RCMP ought to be free to investigate these
allegations.
[70]
I
agree. Parliamentary privilege does not extend so far as to preclude all other
entities from concurrently investigating matters which are also before the
House. Rather it precludes other entities from holding Members of Parliament or
witnesses before committees liable for statements made in the discharge of
their functions in the House. Therefore, provided the RCMP is able to conduct
its investigation without resorting to the Applicant’s testimony before the
House, parliamentary privilege does not apply and the RCMP is free to do as it
pleases within the confines of the law and its constituent statute.
[71]
Without
commenting on how the actual investigation may unfold and what issues may arise
between the parties in the future, at this stage I am satisfied that on their
face the first and third allegations made against the Applicant by Commissioner
Busson do not necessarily concern parliamentary privilege. In other words, I am
satisfied that these allegations may be established without having to rely on
statements made to the Public Accounts Committee. Moreover, the allegations
appear to provide ample justification for the Code of Conduct Investigation and
consequent suspension with pay.
[72]
In
light of the foregoing, I find that parliamentary privilege is not a valid
reason to quash the decision to investigate the first and third allegations
made against the Applicant. Nor is there reason to quash the decision to
suspend the Applicant with pay.
[73]
I
now turn to the second listed basis for the Code of Conduct Investigation, the
allegation that the Applicant gave false testimony before the House Committee.
[74]
The
Applicant submits that she cannot be investigated by the RCMP for deliberately
misleading the Public Accounts Committee because her testimony is protected by
parliamentary privilege. She says that the RCMP investigating her for
statements she made before the Public Accounts Committee is analogous to the
police investigating whether a Member of Parliament was dishonest in the House
of Commons.
[75]
I
agree with the Applicant. Unlike the other allegations, which may be
established from other sources of evidence, there is no way to demonstrate in
an internal Code of Conduct proceeding that the Applicant gave false testimony
to a parliamentary committee other than by using the allegedly false statements
as evidence against the Applicant. Parliamentary privilege does not allow this.
[76]
As
stated above, one of the primary justifications for providing immunity to
witnesses, as well as to Members of Parliament, is to ensure that they can
speak openly and freely before a Committee without fear that what they say
will later be held against them. In other words, for Parliament to fulfil
its deliberative and investigative functions with dignity and efficiency it is
necessary that witnesses before House committees can be confident that their
testimony is immune from subsequent challenges from outside the House. Lord Brown-Wilkinson,
on behalf of the House of Lords and the Judicial Committee of the Privy
Council, emphasized this idea in Prebble v.
Television New Zealand, where he wrote that the purpose underlying
parliamentary privilege is:
…
to ensure so far as possible that a member of the legislature and
witnesses before committees of the House can speak freely without fear that
what they say will later be held against them in the courts. The important
public interest protected by such privilege is to ensure that the member or
witness at the time he speaks is not inhibited from stating fully and
freely what he has to say. If there were any exceptions which permitted his
statements to be questioned subsequently, at the time when he speaks in
Parliament he would not know whether or not there would subsequently be a
challenge to what he is saying. Therefore he would not have the confidence the
privilege is designed to protect. [Emphasis added]
[77]
The
“free-speech” rationale becomes even more compelling in the present circumstances
because by the time the Applicant received notice on March 30, 2007 that she
was the subject of an RCMP Code of Conduct Investigation she had already been
summoned back to testify before the Public Accounts Committee. Late in the
afternoon on March 29, 2007, the Applicant was informed that she was to
reappear as a witness before the Committee sometime during the week of April
16, 2007. Further complicating matters, earlier in the day of March 29, 2007,
the Minister of Public Safety announced his decision to initiate an independent
investigation into allegations made against the Applicant by the RCMP Group.
The Applicant then learned, on April 3, 2007, that in addition to the other
investigations she was now subject to a collateral criminal investigation. Therefore,
even before the Applicant was to reappear before the Public Accounts Committee
to answer questions regarding her previous statements, she knew she was subject
to no less than three separate investigations, each pertaining to her February
21, 2007 testimony.
[78]
In
my view, these circumstances give rise to two immediate concerns. First, the other
investigations clearly impinge on the Applicant’s confidence to speak freely
and openly during her reappearance before the Committee and this, in turn, undermines
the Committee’s ability to efficiently carry out its investigative function.
Pursuant to Standing Order 108(3) of the House of Commons, the Public Accounts
Committee’s mandate is to review and report on the Public Accounts of Canada
and all Auditor General reports. The hearings with respect to RCMP pensions
and insurance funds are in direct response to the Auditor General’s report of
November 2006. The testimony provided by the Applicant in the course of her appearance
before the Public Accounts Committee on February 21, 2007 is, therefore, directly
connected to the Committee’s function of holding the government to account. If
witnesses are uncertain whether their comments to a
House Committee will be immune from examination elsewhere, then their feelings
of vulnerability may well prevent them from speaking openly. This would
obviously reduce the effectiveness of parliamentary hearings: Gagliano, at
para. 78.
[79]
The
second concern is that, as mentioned above, it is not for the courts or another
entity, apart from the House of Commons, to determine whether Parliament has
been misled. Misleading Parliament is a breach of the code of parliamentary
behaviour and liable to be disciplined by Parliament: Hamilton v. Al
Fayed, at 231. Where
Committees of the House of Commons have reason to believe that they have been lied
to by a witness, parliamentary practice and precedent dictates the procedure to
be followed: see R. Marleau and C. Montpetit, eds., House of Commons
Procedure and Practice, (House of Commons, 2000). At the time the
RCMP initiated their investigations, none of the appropriate procedural steps
had been taken by the House of Commons. For the courts or the RCMP Commissioner to
initiate an internal investigation on the question of perjury before the House,
prior to any decision on the matter by the House itself, would be to trespass
within an area over which Parliament has exclusive jurisdiction.
[80]
Moreover,
since Parliament has the authority to investigate and punish the Applicant for
misleading the House, and still may do so, any RCMP investigation into the
allegation that the Applicant provided false testimony to the Public Accounts Committee
raises the prospect of conflicting decisions on an identical matter by two
separate branches of government. Two conflicting decisions on the same issue
reached by two separate government branches would amount to RCMP interference with
Parliament’s autonomy. This is precisely what the privilege aims to avoid. As
Lord Brown-Wilkinson wrote in Pepper v. Hart, [1993] A.C. 593, at 334: “Misleading the House is a contempt of the House punishable by the
House: if a court were also to be permitted to decide whether or not a member
or witness had misled the House there would be a serious risk of conflicting
decisions on the issue”.
[81]
One
of the Respondent’s main submissions in this judicial review is that it is
premature for the court to determine whether parliamentary privilege applies in
this case and that the matter should be addressed as the investigation unfolds.
I disagree. Allowing a discrete preliminary issue within the province of the
judiciary to fester until the grievance process runs its course would seem to
be in no party’s interest. Further, in my opinion, if any action was premature
in the circumstances of this case, it was the decision of Commissioner Busson
to investigate the Applicant on the basis of her statements before the House
prior to the completion of her testimony before the Public Accounts Committee
and prior to any waiver given by Parliament to withdraw its protection. Short
of an express waiver of the privilege by Parliament, it is premature for any
outside entity to inquire into an alleged contempt of the House.
[82]
Based
on the foregoing, I am of the opinion that Commissioner Busson did not have the
jurisdiction to investigate the allegation that the Applicant gave false
testimony to the Public Accounts Committee.
D. Procedural
Fairness
[83]
In
oral argument, the Applicant submitted that she was denied procedural fairness
because she was not offered an opportunity to be heard before she was suspended
from employment.
[84]
In
written submissions, the Applicant submitted that the RCMP’s internal
investigation is flawed because it raises a reasonable apprehension of bias.
The Applicant’s primary concern seems to be that the Commissioner will be
directly involved in the internal investigation as a witness who will be
questioned by C/Supt. Paulson, the very officer she appointed to conduct the
investigation. If C/Supt. Paulson faces two conflicting versions of events, which
is not unlikely, he will be forced to choose between the Applicant and the
Commissioner. Given that the Commissioner is C/Supt. Paulson’s superior, the
investigation’s structure is flawed and the impartiality of any eventual
recommendation is compromised.
[85]
The
Respondent submits that an interim suspension with pay pending investigation is
not a disciplinary decision and that the degree of procedural fairness required
at this stage is significantly less than during the grievance process which may
follow any adverse recommendation made against the Applicant.
[86]
The
Respondent also submits that the Applicant’s bias argument is misconceived for
the following reasons. First, the Applicant has misconstrued the impartiality
requirement for investigators, which is less than the standard applied to
adjudicators. Second, the Respondent notes that the Applicant has provided no
proof suggesting bias beyond how the allegations in the Notice of Suspension
were worded. Third, the Applicant’s submissions fail to appreciate the procedural
safeguards against Commissioner interference built into the structure of the
investigation and the grievance process. While the Commissioner appointed C/Supt.
Paulson pursuant to her statutory powers, she is not the investigator, she is not
the decision maker in any disciplinary proceedings that may result, and she
retains no authority to alter any final disciplinary decision rendered by an
adjudicator. These safeguards were explained in Louise Morel’s affidavit, which
was sworn April 16, 2007 and submitted by the Respondents. Ms Morel is the
RCMP’s Director General of Employee and Management Relations.
[87]
I
agree with the Respondents. As I noted above, the decision to investigate
allegations and to suspend an officer with pay pending that investigation are
not final disciplinary decisions; rather they are essentially preliminary non-judicial
decisions. Generally speaking, decisions of a preliminary nature will not
trigger a fairness duty: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653,
at para. 26. Even in cases where preliminary decisions do trigger a duty to act
fairly, such as in formal inquiries where personal reputations are at stake,
the individuals implicated will not be entitled to full trial-like procedural
protections during this pre-trial fact finding stage: see Canada
(Attorney General) v. Canada (Commission of Inquiry on the Blood System),
[1997] 3 S.C.R. 440; Masters v. Ontario (1994), 18 O.R.
(3d) 551. Therefore, procedural fairness requirements in the
context of a suspension with pay pending an administrative investigation are
necessarily lower than those triggered by disciplinary proceedings which would
follow an adverse investigation. As Justice Jenkins keenly
observes at
paragraph 28 of Griffin, supra, the lower procedural fairness requirement
at the preliminary stage is not a license to treat people unfairly; rather it
is necessary to allow investigators the chance to do their job and it is
corollary to the higher standard to be applied to any subsequent proceedings:
Given that the
events flowing from the suspension would have been either a return to his
office and employment without any negative consequences, or a hearing or some
suitable opportunity to answer and explain following the outside investigation
before any disciplinary action would be imposed, the level or degree of
procedural fairness required at the interim suspension stage should not be
subject to too onerous a judicial scrutiny. To impose more precise standards of
procedural propriety could unduly hamper the Director's administration of the
Police Department. This deference at this stage is not a license to avoid
appropriate requirements for procedural fairness. To the contrary, I view it as
a natural, and necessary, corrollary to the relatively low standard required at
this early stage of interim suspension with pay pending an investigation, that
the standards of procedural fairness and associated judicial scrutiny would be
substantially higher and more stringent regarding any disciplinary suspension
which would follow an adverse investigation report.
[88]
At
this stage of the investigation, in the absence of any evidence of bias beyond
the wording of the allegations, which I note closely reflects the wording of ss.
39(1) of the RCMP Regulations, I am satisfied that the safeguards the
RCMP has in place are sufficient to meet the requirements of natural justice. The
reasonable apprehension of bias test must be applied flexibly in the context of
investigations: Beno v. Canada (Commission of Inquiry into the Deployment of Canadian Forces in
Somalia -
Létourneau Commission), [1997]
2 F.C. 527 (FCA), at para. 26. I accept the Respondent’s affidavit
evidence that in the circumstances of this case, Commissioner Busson is not the
investigator and she retains no authority to influence or alter any decisions
made with regard to the Applicant’s potential grievance.
[89]
I
note further that the Applicant had the opportunity to discuss her side of the
story when she met privately with Commissioner Busson on March 26, 2007. At
that time, the Applicant was asked to step aside as Deputy Commissioner Human
Resources and to step down from the RCMP Senior Executive Committee. Although
the Applicant did not admit to any wrongdoing and expressed reluctance to step
aside, she ultimately agreed to do so on the basis of concerns that she
could not fully and effectively discharge her duties under the circumstances. The
following day, on March 27, 2007, the Applicant and Commissioner Busson signed
a formal written agreement which reflected the arrangements made the previous
evening (the Exit Agreement). In exchange for agreeing to step down, the
Applicant was granted a combination of Pre-Retirement Leave and Educational
Leave to complete her Masters Degree in Criminology at Simon Fraser University.
[90]
I
note parenthetically that due to the allegations made against the Applicant by
the RCMP Group on March 28, 2007 before the Public Accounts Committee, and the
subsequent suspension with pay pending an internal investigation, Commissioner
Busson notified the Applicant in her letter dated March 30, 2007 that the Exit
Agreement would be held in abeyance until the conclusion of the investigation.
The Applicant did not raise this as an issue in either written or oral
submissions, so I will not address it now.
[91]
The
events surrounding these applications for judicial review continue to unfold.
In light of all the foregoing, I am not prepared to intervene at this stage beyond
precluding the RCMP Code of Conduct Investigation from inquiring into the
allegation that the Applicant made false statements to the Public Accounts
Committee and impeaching the Applicant on that testimony. Any procedural
fairness concerns, including the apprehension of bias or an opportunity to be
heard, may be dealt with in the context of any disciplinary proceedings that
may result or any subsequent application for judicial review before this court.
PART V – CONCLUSION
[92]
These
applications for judicial review involve the interplay of several legal
principles – parliamentary privilege, the adequate alternative remedy doctrine,
police independence, and procedural fairness – each of which has been designed
to assist in demarcating one part of the government from another, and in
defining each part’s proper role. Two issues in particular, namely parliamentary
privilege and police independence, are integral to our constitutional
equilibrium. Courts must be vigilant in guarding the legitimate sphere of
activity enjoyed by each branch of government, while at the same time remaining
cognizant of the limits of each branch’s powers, including their own.
[93]
While
it is true that the RCMP Act provides for a comprehensive grievance
process, it is not a suitable procedure, nor is it an efficient way to resolve
what is essentially a question over the scope of parliamentary privilege and
how the immunity provided by that privilege impacts an internal Code of Conduct
Investigation based, in part at least, on witness testimony before a House
Committee. Since this is a discrete preliminary question within the province of
the judiciary, it is appropriate that this court provides some guidance to the
parties at this time.
[94]
However,
given the Federal Court’s limited jurisdiction over criminal matters, especially
when compared to the general criminal jurisdiction of the provincial superior
courts, and the law which holds that peace officers investigating crimes derive
their powers from common law rather than from statute, it is not appropriate
for this court to review a decision by the RCMP to initiate a criminal
investigation.
[95]
Clearly,
both Parliament and the RCMP have legitimate powers to investigate wrongdoing. The
circumstances leading to these applications have brought the integrity and
proper functioning of the two entities’ investigative capacity into conflict. With
regard to the application pertaining to the Code of Conduct Investigation, I
have concluded that although parliamentary privilege precludes outside bodies
from holding parliamentary witnesses liable for false statements made to House
Committees, the privilege does not extend so far as to prevent all other
entities from concurrently investigating matters which may also be before the
House. For this reason, the RCMP is free to investigate allegations that the
Applicant breached the RCMP’s Code of Conduct in the discharge of her duties,
but may not investigate the specific allegation that the Applicant provided
false testimony to the House. Parliamentary privilege protects what is said in
the House and, if the House believes it was misled, it is for the House alone
to investigate and punish this offence.
[96]
Since
the Code of Conduct Investigation is still in its infancy, it would be
premature for this court to interfere on the basis of procedural fairness,
particularly in the absence of any evidence of an obvious defect in the investigation.
[97]
Accordingly,
Commissioner Busson’s decisions regarding the internal Code of Conduct
Investigation are upheld, except for the decision to investigate the specific
allegation that the Applicant gave false testimony to the House. That aspect of
her decision is unlawful because it offends parliamentary privilege. The first application
pertaining to the internal Code of Conduct Investigation is granted in part and
the second application pertaining to the Criminal Investigation is dismissed.
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