Kinsey v. Canada (Attorney General), 2007 FC 543

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2007 FC 543

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Date: 20070522

Docket: T-1180-06

Docket: T-1181-06

Citation: 2007 FC 543

Ottawa, Ontario, May 22, 2007

PRESENT: The Honourable Mr. Justice de Montigny

BETWEEN:

DERI KINSEY

Applicant

and

ATTORNEY GENERAL FOR CANADA AND APPROPRIATE OFFICER "E" DIVISION OF THE ROYAL CANADIAN MOUNTED POLICE

Respondent

BETWEEN:

SATNAM DHALIWAL

Applicant

and

ATTORNEY GENERAL FOR CANADA AND APPROPRIATE OFFICER "E" DIVISION OF THE ROYAL CANADIAN MOUNTED POLICE

Respondent

REASONS FOR ORDER AND ORDER

[1] Deri Kinsey has applied for judicial review of a decision by the Commissioner of the RCMP (the Commissioner), under s. 45.16(7) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the RCMP Act). In his decision dated June 8, 2006, the Commissioner affirmed an earlier decision by the RCMP Adjudication Board (the Board), ordering that Kinsey be dismissed from his position as an RCMP constable.

[2] Satnam Dhaliwal, another RCMP constable, brought a similar application in file number T-1181-06. The alleged misconduct in both cases relates to electronic messages exchanged between the two officers. While the Board and the Commissioner issued separate decisions for each constable, the hearings were held jointly, the evidence was either the same or quite similar, both were represented by the same counsel, and the cases proceeded on the basis of the same agreed statement of facts.

[3] Before this Court, the applicants were originally represented by the same lawyer, and accordingly submitted the same memorandum of argument to the Court. Constable Dhaliwal later retained new counsel, who submitted extensive further representations a few days before the hearing (a point to which I will return later). That being said, each counsel adopted the oral and written submissions made by the other. The respondents, on the other hand, have made only one set of submissions. As such, I will deal with the two applications in one set of reasons, which shall apply equally to files T-1180-06 and T-1181-06.

[4] The applicants have not contested that they used the RCMP’s mobile computer system over a five-month period to send each other a significant number of highly inappropriate text messages while on duty from their police cars. The only matter in dispute is the sanction that should be imposed. The two constables argue that the dismissal orders against them are unfair and disproportionate. They also claim there was a reasonable apprehension of bias at their disciplinary hearing before the Board. Having carefully reviewed the record and taken counsel’s oral and written submissions into account, I have come to the conclusion these applications for judicial review should be granted, for the reasons that follow.

BACKGROUND

[5] Deri Kinsey and Satnam Dhaliwal were both RCMP officers in North Vancouver. They were also very good friends. On September 19, 2002, a female RCMP officer was getting ready for her shift when she noticed text messages displayed in the police car she was going to use. They had been written by the applicants. She found them offensive, and reported the incident. This set off an investigation into the constables’ recorded exchanges between April 26, 2002 and September 20, 2002.

[6] As a result of this investigation, the Appropriate Officer (AO) of “E” Division initiated formal disciplinary action pursuant to s. 43 of the RCMP Act, and the applicants were served with a Notice of Disciplinary Hearing on September 10, 2003. They were accused of conducting themselves in a disgraceful manner that could bring discredit to the RCMP, pursuant to s. 39(1) of the Royal Canadian Mounted Police Regulations, 1998, SOR 880-361 (the Code of Conduct). The Notice, as amended at the hearing, stated:

A. At all material times, Cst. Kinsey was a member of the Royal Canadian Mounted Police (“RCMP”), posted in “E” Division at the North Vancouver detachment.

B. During the period April 26, 2002, through September 20, 2002, while on duty, Cst. Kinsey sent electronic messages on the Computer Integrated Information Data System, which were inappropriate and unprofessional.

C. The specific content and general theme of some of these messages were sexual, sexist, racist, profane, vulgar, derogatory to others and disrespectful of others.

[7] The hearing was conducted by way of an Agreed Statement of Facts. It revealed:

§ Kinsey and Dhaliwal sent many messages containing profanities, obscenities or vulgarities, such as “fuck”, “fucking”, “cunt”, “cocksucker”, “motherfucker”, “homo”, “faggot”, “whore”, “bitch”, “slut”, “blow me” and “suck ass”;

§ Kinsey and Dhaliwal sent many messages containing sexually suggestive comments regarding acts they would like to see or experience, often in the context of identifiable persons, including other RCMP members, telecommunications operators and members of the general public;

§ There was approximately one (1) instance of a racially insensitive comment;

§ Kinsey and Dhaliwal sent several messages expressing their desire to use improper force;

§ Kinsey and Dhaliwal sent several messages expressing a lack of commitment toward performing duties or tasks, including remarks indicating the avoidance of taking calls or condoning such practice;

§ Kinsey and Dhaliwal sent a significant number of messages containing disparaging remarks about other members of the RCMP, purportedly with respect to their personal lives, sexual practices, physical attributes and their police work;

§ The messages in question had no duty-related purpose and did not relate to legitimate police duties;

§ During the relevant period, Kinsey was training a cadet who was exposed to these messages; and

§ Kinsey and Dhaliwal sent these messages notwithstanding the fact that in February 2002, two months prior to the period in issue, an Acceptable User Practice form was sent to them indicating that use of the RCMP’s computer system must be limited to official and operational business.

[8] As the applicants admitted the contraventions, the only issue in controversy before the Board was the sanction to be imposed. Before going any further, I will briefly summarize the RCMP’s three-stage process for formal disciplinary action that was legislated by Parliament. The first stage is a hearing before an Adjudication Board made up of three members of the RCMP, at least one of whom is a lawyer (RCMP Act, s. 43). Parties can appeal the Adjudication Board’s decision to the Commissioner, who may dispose of the matter by dismissing the appeal and confirming the Board’s decision, or by allowing the appeal and either varying or rescinding the sanction (s. 45.14 and s. 45.16). Before considering an appeal, however, the Commissioner must refer the case to the External Review Committee (the Committee), which is an independent civilian body. The Committee reviews and reports on the Adjudication Board’s decision, and recommends how the Commissioner should proceed on appeal (s. 45.15). The Commissioner is not bound by the Committee’s findings and recommendations, but if he does not follow them he must explain why in his reasons (s. 45.16(6)).

[9] On April 7, 2004, the Board rendered its oral decision. It provided a written decision on May 12, 2004, concluding the contraventions had been established. With respect to sanction, the Board ordered both Kinsey and Dhaliwal to resign from the Force. If they did not resign within fourteen days, they would be dismissed. The Board based its decision on the “demeaning, deprecating and outrageous” nature of the messages, the repetitive nature of the constables’ conduct, and the fact that both Kinsey and Dhaliwal were forewarned of the impropriety of previous misconduct similar in nature to the offensive text messages. Constable Kinsey had received operational guidance on the use of improper language in a “joke” report to the Crown, while Constable Dhaliwal had received informal discipline for the use of improper language shortly before. The Board therefore found the applicants had repudiated an essential element of the employment relationship – trustworthiness- which justified their dismissal. It included the following passage in its decisions relating to both applicants:

When reviewing the nature of the misconduct to establish a fair and just sanction, the Board must weigh the interest of the public and the Force and be fair to the member. Police officers hold a special position of trust in the community and must consequently adopt a higher standard of conduct.

[…]

While the Board agrees with the modern approach of corrective and remedial discipline, it also believes in the RCMP’s right to prevent and deter conduct that is incompatible to the duties of a peace officer. The nature of the misconduct raises serious concerns about the member’s character and values. The evidence presented by the member was not sufficient to allay these concerns.

[10] The constables had each submitted a report from a psychologist, both of which were quite similar. The psychologist found neither officer displayed any evidence of inherent racism or misogyny. He said their messages should not be understood as a reflection of their core beliefs and values, but must be seen as the result of an irreverent sense of humor which culminated “in an escalating game of one-upmanship with reference to a competition as to who can be the most brazen and unorthodox.” He concluded the careers of both constables were “fully salvageable”, and recommended they face a lesser sanction than dismissal.

[11] On the other hand, Superintendent Gordon Tomlinson, who was the Officer in Charge of the North Vancouver detachment where the two constables worked, testified that he had lost confidence and trust in both men. He felt their conduct showed an unacceptable lack of respect toward co-workers and the public. He also said he would have great concerns if they were to return to work and he felt they would need close supervision.

[12] In light of that evidence and the parties’ submissions, the Board concluded:

Constable Kinsey breached the faith inherent to the work relationship and his conduct was fundamentally inconsistent with his obligations toward the employer. He displayed, through his misconduct, a serious lack of judgment that is more than momentary. This lack of judgment and clear disregard for the RCMP’s values repudiated one of the essential elements of the employment relationship, which is demonstrated trustworthiness, and conduct and deportment worthy of general social respect necessary to ensure public confidence. This breach of trust, because of the seriousness of the misconduct and its abhorrent nature, is beyond repair.

The same conclusion can be found in the Board’s decision pertaining to Constable Dhaliwal.

[13] The officers appealed the Board’s decision to the RCMP Commissioner, who then referred the case to the External Review Committee. Constables Kinsey and Dhaliwal made three main arguments. First they claimed institutional bias because the Board members at their hearing ranked below the Appropriate Officer, who was the respondent. The Appropriate Officer (AO) in this case was Beverly Busson. At the time she was one of eight Deputy Commissioners within the RCMP. In December 2006, Prime Minister Stephen Harper appointed her interim RCMP Commissioner.

[14] Second, they submitted they did not get a fair hearing because the Appropriate Officer’s representative referred to the Appropriate Officer’s personal opinion on the case in his closing submissions. Third, they argued the sanction imposed was disproportionately high, taking into consideration all of the relevant facts.

[15] Relying on the Federal Court of Appeal’s decision in Armstrong v. Canada (Commissioner of Royal Canadian Mounted Police), [1998] 2 F.C. 666, aff’g [1994] 2 F.C. 356 [Armstrong], which held the discharge and demotion procedures under the RCMP Act were sufficiently independent to satisfy the requirements of natural justice, the Committee found the Part IV process for disciplinary hearings was similar to the discharge and demotion process. The Committee also noted that counsel for the applicants did not raise this argument either before or during their Board hearing, even though they knew the Appropriate Officer’s identity well in advance, as well as the Board members’. To that extent, the Committee found they waived their right to raise bias as an issue.

[16] With respect to the officers’ second ground of appeal, the Committee found there was a breach of procedural fairness but concluded it would not have affected the hearing’s outcome and so did not warrant allowing the appeal. The Committee described the Appropriate Officer’s role in the following terms at paragraph 43 of its decision:

According to subsection 45.1(1) of the Act, the Respondent is a party to the disciplinary hearing. By virtue of subsection 45.1(8) of the Act, the Respondent as a party was afforded a full and ample opportunity “to present evidence, to cross-examine witnesses, and to make representations at the hearing”. The Respondent had the choice of acting in person or through a representative.

[17] In the present case, the AO decided to act through a representative (an AOR), who is a lawyer arguing on management’s behalf. At the Board hearing, the Appropriate Officer’s representative referred to Deputy Commissioner Busson’s personal opinion on the case and introduced at least three references to the fact that she had lost confidence in the two constables. The Committee agreed this was an error, because even as the respondent, the Appropriate Officer was subject to the rule that all testimony had to be given under oath or affirmation. By expressing the Appropriate Officer’s personal opinion, her representative was violating s. 10 of the Commissioner’s Standing Orders (Practice and Procedure), SOR/88-367, as amended, according to which “all testimony given before a board shall be given under oath or affirmation.” The Board also noted the Appropriate Officer’s representative had violated the duty of procedural fairness by introducing evidence for the first time during his closing submissions.

[18] Nevertheless, the Committee recommended that the Commissioner dismiss the appeals because this breach was not material. The Committee’s views on that matter are well captured at paragraph 46 of its reasons, where the Committee Chair wrote:

Although I find that there was a breach of fairness in having the Respondent introduce evidence for the first time in his submissions, I do not recommend that the Commissioner allow the appeals on this basis. I find that the breach could not have affected the outcome of the case. This was but one of many aggravating factors that the Board weighed against the mitigating factors. As well, I note that there was testimony from another superior who indicated a loss of confidence in the Appellants. Therefore, even if the Board had not considered the Respondents’ opinions, it would still have had an evidentiary basis to conclude that the Chain of Command no longer had confidence in the Appellants.

[19] Finally, the Committee rejected the constables’ argument that the sanction against them was inappropriate. It prefaced its reasoning with the oft-mentioned principle that considerable deference should be given to findings of fact and findings of credibility because the Board had the opportunity to see the witnesses and hear the evidence. The Committee also concluded it was proper for the Board to place considerable weight on prior discipline, and that it did not err by disagreeing with the psychological reports. The Committee also found the Board rightly distinguished three cases on which the constables relied, and concluded those other cases did not demonstrate that the resignation order in this case was a departure from an established pattern of discipline.

[20] For all these reasons, the Committee recommended that the Commissioner dismiss the constables’ appeals on December 30, 2005. The Chair of the Committee wrote:

[79] On the basis of my review, I recommend to the Commissioner of the RCMP that he dismiss the appeals. I do not believe that the new information submitted on appeal by the Appellants should be considered. I do not accept the Appellants’ claim that there was institutional bias based on a lack of independence arising from the fact that the Appropriate Officer was higher in rank and more visible in the organization than the members of the Adjudication Board. I find that the AOR violated the duty to act fairly when he included in his closing submissions facts that had not been introduced as evidence through witnesses. However, I do not recommend that the Commissioner allow the appeals for this reason, because in my view, the breach could not have affected the outcome of the case.

[80] I find that the Adjudication Board made no errors in its findings of fact, and properly assessed the relevant factors. It was not obligated to follow the expert opinions, although it would have been helpful if it had given more explanation for its conclusions in this regard. I also find that given the mitigating and aggravating factors identified, it was appropriate for the Board to order the Appellants to resign.

THE IMPUGNED DECISION

[21] Commissioner Giuliano Zaccardelli dismissed the constables’ appeals on June 8, 2006. In affirming the Board’s decision, he relied extensively on the Committee’s analysis. While he dealt with a variety of issues, I will focus on the issues the constables have raised in their judicial review applications.

[22] First, the Commissioner rejected the argument that the Board was biased because the Appropriate Officer outranked the Board members. Much like the Committee, the Commissioner relied on the case of Armstrong, above, and found all the requirements for administrative independence (that is, security of tenure, financial security and institutional independence) had been met in this case. In his view, the discipline process contained in Part IV of the RCMP Act was sufficiently similar to the discharge and demotion process found in Armstrong to be independent and commensurate with the principles of natural justice. In any event, the Commissioner agreed with the Committee that the constables had waived their right to raise the issue because they failed to raise it during their Board hearing.

[23] With respect to the submissions the Appropriate Officer’s representative made to the Board, the Commissioner’s position was somewhat different than the Committee’s. After dismissing the constables’ arguments on s. 7 of the Charter because of case law saying the Charter does not apply to RCMP discipline proceedings (Cannon v. Canada (Assistant Commissioner, RCMP), [1998] 2 F.C. 104), the Commissioner wrote the following, at paragraph 92 of his reasons:

The ERC compared the role of the AOR to that of a Crown prosecutor, who, as stated by the Supreme Court of Canada in R. v. Rose [1998] 3 S.C.R. 262, must “remain true to the evidence.” In other words, AORs should limit their submissions to the Board to facts for which there is an evidentiary basis. I agree with this proposition. The ERC seems to indicate that the AOR in this case was actually testifying and should not have told the Board that the Appropriate Officer had lost confidence in the Appellant or that she believed that public confidence in the Force would be lost if the Appellant was retained in the Force. However, the fact that the Appropriate Officer was seeking “dismissal” because she had lost confidence in the member is not evidence, in my view, but rather a statement of fact. It is the role of an AOR to represent the AO and to apprise the Board of the AO’s wishes.

[24] The Commissioner went on to say that while the Appropriate Officer’s representative may legitimately advise the Board about the particular sanction the Appropriate Officer is seeking, “it is important that their comments in this regard do not amount to a belabouring of the point or to the expression of the personal views of the AO” (Commissioner’s Decision, paragraph 94). Indeed, he went so far as to say it was inappropriate to tell the Board what sanction the Appropriate Officer was seeking before the Board decided the allegations against the constables were justified. However, while he did not fully accept the Committee’s rationale, the Commissioner nevertheless agreed the appeal should not be allowed on this basis. He stated, at paragraph 96 of his reasons:

Any breach of the duty of fairness owed to Cst. Kinsey would not have affected the outcome of the case. The Board did not have to rely on the impugned comments of the AOR to determine that the chain of command had lost confidence in Cst. Kinsey. As I have stated, the fact that the AO was seeking his dismissal was clear evidence of that fact. In addition, Supt. Tomlinson, Cst. Kinsey’s detachment commander, testified that he had lost confidence in the Appellant.

Again, the Commissioner made the same comment in his decision regarding Constable Dhaliwal.

[25] With respect to the severity of the sanction, the Commissioner looked at many issues the constables raised before rejecting this ground of appeal. He agreed with the Committee that appeal tribunals should give considerable deference to the Board’s findings of fact and credibility. He then found the Board had recognized the impugned messages had not necessarily taken as much time to write as one might presume from the 800 pages of evidence. He also rejected the constables’ claim that their supervisor, Superintendent Tomlinson, was biased against them and thus not a reliable witness.

[26] The Commissioner also accepted the Committee’s conclusion that a trier of fact is not bound by expert testimony. As the Supreme Court of Canada said in R v. Ratti (1991), 62 C.C.C. (3d) 105, the probative value of expert testimony is to be assessed as any other type of evidence. Accordingly, the Commissioner was satisfied the Board had correctly interpreted and applied the psychologist’s evidence.

[27] The constables had also argued the Board erred by considering and placing too much emphasis on previous discipline action taken against them in 2002. In Constable Dhaliwal’s case, the previous discipline consisted of counseling for writing an email in which he referred to a female RCMP member as a “crack whore”. As for Constable Kinsey, he breached the RCMP’s Code of Conduct for authoring an “unofficial joke” report to Crown counsel and received the sanction of “operational guidance”. The Commissioner agreed with the Committee that the Board had correctly considered these incidents an aggravating factor, because of their close link and contemporaneousness with the conduct for which the constables were now being sanctioned.

[28] Finally, the Commissioner agreed with the Committee that the Board made no error in ordering the constables’ dismissal, despite other previous discipline cases they cited where the sanctions for more egregious conduct were comparatively lenient. The Commissioner wrote, at paragraph 114 of his reasons:

With respect to the concept of parity of sanction, each case must be decided on its own unique set of circumstances. Fact patterns are only a part, albeit an important part, of the myriad factors that must be taken into account to determine an appropriate sanction. This case is a good example of that principle in that the Board weighed numerous mitigating and aggravating factors in its analysis on sanction. In addition, the ERC considered several factors when distinguishing the cases cited by Cst. Kinsey from the present case. Since every case is unique, the comparison of fact patterns from one case to another is only one step in the determination of appropriate sanctions.

[29] Relying on this Court’s decision in Rendell v. Canada (Attorney General), 2001 FCT 710, [2001] F.C.J. No. 1015 (QL), the Commissioner stated he was not bound by previous Board decisions, and that he could properly take into account public expectations when weighing aggravating and mitigating circumstances. He concluded by finding the constables had met the standard for dismissal because they had repudiated their employment contracts. He adopted the Board’s comments which I quoted above, at paragraph 12 of these reasons, and wrote the following at paragraph 117 of his own:

I wish to make it clear that Cst. Kinsey is not being discharged simply because he used RCMP IT equipment for private communications. He is being sanctioned because the vulgar, racist, sexist and demeaning content of the messages he authored demonstrate his unwillingness to be bound by a standard of conduct commensurate with the expectations of the Force and the people of Canada. Those expectations are reflected in our core values, values which represent the basic, fundamental tenets on which the RCMP is built. It would be entirely inappropriate for an organization of excellence to countenance the presence within its ranks of those who have clearly demonstrated a lack of commitment to its basic, fundamental values.

ISSUES

[30] This application for judicial review essentially raises four issues:

A. What is the applicable standard of review?

B. Did the Commissioner err by concluding there was no apprehension of bias as a result of the fact that the Appropriate Officer outranked the Board members, and that the applicants waived their right to raise this issue in any event?

C. Did the Commissioner err by finding the Appropriate Officer’s representative breached the duty of fairness when he referred to the Appropriate Officer’s personal views in his closing submissions, but that this breach was of no material consequence?

D. Did the Commissioner err in determining it was open to the Board to sanction the applicants as it did?

ANALYSIS

[31] Before turning to the substantive issues in this application, I must deal with two preliminary objections made by the respondents. First, counsel argued the constables did not raise the main grounds of their application in either their notice of application or supporting affidavits. Rather, they only raised them in their application records for the first time. Counsel cited Williamson v. Canada (Attorney General), 2005 FC 954, for the proposition that a party cannot raise issues on judicial review that were not raised in his initial notice of application and supporting affidavits.

[32] Rule 301(e) of the Federal Courts Rules, SOR/98-106 (the Rules), states that applications are commenced by a notice of application setting out, inter alia, “a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on.” This rule is meant to give a respondent the opportunity to address the grounds of review in his affidavit and ensure no one is taken by surprise.

[33] In the present case, the applicants submitted in their notices of application that the Commissioner had erred in fact and in law, and had breached a principle of natural justice or procedural fairness. This is no doubt a cryptic way to set out the grounds of review. It reflects, unfortunately, a practice that is becoming more and more common - to simply paraphrase the text of s. 18.1 of the Federal Courts Act as the grounds for the application. Such a practice must definitely be discouraged, and counsel should strive to particularize the grounds they intend to argue to conform to the spirit of the Rules. This would certainly help both parties frame their arguments more precisely from the outset and eventually focus the debate.

[34] Having said this, I am not prepared to refuse considering the constables’ arguments on this basis. First of all, the respondents have not provided any evidence tending to demonstrate that they were taken by surprise or prejudiced in preparing their record or submissions. In light of the fact that the constables’ careers are at stake, I would also be extremely reluctant to prevent them from making all the submissions they articulated in their original memorandum. A delay could have been granted if the respondents felt it was necessary, but none was requested. Indeed, counsel for the respondents did not really push that point at the hearing.

[35] At the hearing, the respondents formally objected to the filing of a document titled “Applicant’s Argument”. Mr. Vertlieb, Constable Dhaliwal’s new counsel, filed the document with the Court on April 5, 2007, a few days before the hearing. The respondents argued this document was in substance a 59-page amended memorandum of fact and law, intended to replace the original memorandum prepared by Constable Dhaliwal’s previous counsel and contained within his application record filed October 16, 2006. Not only was this document in flagrant violation of the 30-page limit imposed by rule 70(4), according to the respondents, but it also contravened rule 75, which provides that an amendment to a document during a hearing must be sought by way of motion and shall be allowed only in some limited circumstances.

[36] The respondents also argued Constable Dhaliwal’s new written submissions should not be accepted for filing because: 1) they contained numerous factual assertions that lacked the requisite evidentiary foundation; 2) they raised new issues not properly disclosed in the applicant’s notice of application; and 3) the respondents would be prejudiced if the Court were to accept the unsupported factual assertions made and the new issues raised as the respondents had no opportunity to produce evidence in response. In the alternative, if the Court did accept the new document for filing, the respondents asked that a number of paragraphs be struck as objectionable for the reasons just set out.

[37] In response, Mr. Vertlieb contended the new document was not an amended memorandum but merely the text of his oral representations. He said the arguments presented were not new but merely expanded on the previous submissions made by his colleague Mr. Bauer on the specific issues of fairness and bias. Finally, Mr. Vertlieb offered to take the document back and to use it merely as his written notes for his oral submissions.

[38] While of the view that this new document is more akin to an amended memorandum of fact and law than to an outline of the oral submissions, I decided nevertheless to accept it for filing since it did not really introduce new arguments and did not, therefore, prejudice the respondents. As it turned out, Mr. Vertlieb did follow this document quite closely during his oral submissions. This is not a practice, however, that should be encouraged. Amendments to a memorandum should be filed well in advance of the hearing to allow the other party sufficient time to prepare its counter-argument.

[39] I also indicated that counsel for the respondents could object as he saw fit to any assertion that, in his view, lacked the requisite evidentiary foundation. As a result, counsel for Constable Dhaliwal refrained from drawing some inferences unsupported by affidavit, especially with respect to the state of mind of the applicant and his legal counsel’s knowledge of the Appropriate Officer’s identity, the nature and extent of the Appropriate Officer’s alleged influence on Board members, and the alleged inability of Constable Dhaliwal and his counsel to raise the issue of bias at the Board hearing. It is thus with these caveats in mind that I will consider the new document and Mr. Vertlieb’s oral submissions.

1.) Standard of review

[40] The central inquiry in determining the standard of review is always the legislative intent behind the relevant legislation which empowers the administrative tribunal to make the decision in issue. The reviewing court must ask whether the question the provision raises is one that was intended by the legislator to be left to the administrative tribunal’s exclusive discretion. In conducting this inquiry, the Court considers four factors: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the tribunal’s expertise relative to that of the reviewing court on the issue in question; (3) the purposes of the legislation and the legislative provision in dispute; and (4) the nature of the question (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226).

[41] In the case at bar, the decision being challenged is the Commissioner’s imposition of a sanction on police officers for contravening the RCMP Code of Conduct, pursuant to s. 45.16 of the RCMP Act. Both parties agree the applicable standard of review is patent unreasonableness, which affords the greatest amount of deference to the impugned decision-maker. This is warranted by the four factors developed as part of the pragmatic and functional analysis. For the most part, I adopt the respondents’ argument in this respect.

[42] S. 45.16(7) of the RCMP Act provides the Commissioner’s decision is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or review by any court. This partial privative clause insulates the Commissioner’s decision from further review to some extent, but it also explicitly preserves this Court’s jurisdiction under s.18.1 of the Federal Courts Act. As such, this factor is neutral.

[43] There is no doubt that the Commissioner (and the Board whose decision he reviews on appeal) has greater expertise relative to the Court with respect to the realities and demands of policing, and what sanctions would be appropriate to ensure the integrity and professionalism of the police force. This factor militates in favour of affording the Commissioner’s decision strong deference.

[44] With respect to the purpose of the legislation, the RCMP Act grants the RCMP, as directed by the Commissioner, the primary responsibility for developing and maintaining standards of professionalism and discipline within its own ranks. Therefore, in carrying out this duty, the Commissioner is not simply establishing rights between parties. He balances the interests of the RCMP member subject to the disciplinary action with those of the Force and the Canadian public, by ensuring police officers who have engaged in disgraceful conduct are sanctioned in a manner that maintains public confidence in the RCMP. By balancing the interests of different constituents, this factor again militates in favour of a higher degree of deference to the Commissioner’s decisions on sanction.

[45] Finally, sanctions to be imposed for disgraceful conduct by RCMP members are primarily fact-driven determinations, discretionary in nature. Again, this signals that Parliament intended the Commissioner’s decisions to be subject to significant deference.

[46] As a result of the foregoing analysis, the proper standard of review of a sanction imposed by the Commissioner pursuant to s. 45.16 of the RCMP Act is clearly patent unreasonableness. As a matter of fact, this is also the standard which my colleagues have applied to decisions of the Commissioner imposing sanctions for breaching the Code of Conduct (see Gill v. Canada (Attorney General), 2006 FC 1106; Gordon v. Canada (Solicitor General), 2003 FC 1250; Lee v. Canada (Royal Canadian Mounted Police), [2000] F.C.J. No. 887 (QL)). The Commissioner’s decision should thus only be set aside if clearly irrational or evidently not in accordance with reason (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 52).

[47] As for the issues of bias and procedural fairness, they do not engage a standard of review analysis. These issues must always be reviewed as questions of law. If the decision-maker has breached his duties through the manner in which he made his decision, it must be set aside (Canada (Attorney General) v. Sketchley, 2005 FCA 404).

2) Bias

[48] Counsel for the applicants purported to challenge the Commissioner’s decision on the basis of an alleged “reasonable apprehension of bias”. Specifically, the constables allege that because the Appropriate Officer who initiated the formal disciplinary action in this case was Deputy Commissioner Busson, a very senior officer who outranked the Board members, this raised a reasonable apprehension of bias. Counsel for Constable Dhaliwal was candid enough to recognize that the Federal Court of Appeal’s decision in Armstrong, above, precluded an argument that the Board was not institutionally independent. While that case dealt with the RCMP’s discharge and demotion process, the discipline process is sufficiently similar to lend itself to the same analysis.

[49] The fact that the Board itself is institutionally independent does not necessarily mean, however, that the process followed in this particular instance also conformed to the tenets of impartiality. The requirements of independence and impartiality are no doubt related and are measured according to the same standard of what an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude. But this is not to say that these requirements are identical. As the Supreme Court of Canada stated in R. v. Valente, [1985] 2 S.C.R. 673 at page 685: “Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case,” whereas the notion of independence connotes “not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others…that rests on objective conditions or guarantees.” See also 2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool), [1996] 3 S.C.R. 919; Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884.

[50] Would a reasonable person, well informed of the situation and having carefully considered the matter, have a reasonable apprehension of bias because the Appropriate Officer in this case was one of the eight Deputy Commissioners, while the Board was composed of one Chief Superintendent (out of 58) and two Superintendents (out of 159)? Is it more likely that the Board members would be susceptible to influence by RCMP management because of the significant disparity in rank? Counsel for the applicants did not explain why this disparity, in and of itself, would be sufficient to create an apprehension of bias where a lesser disparity would be of no consequence. The Board members are officers. They take an oath that they will impartially execute and perform their duties. They are not a superior of the individual charged, nor can they have participated in instituting or processing the case against the individual charged. If, as found in Armstrong, above, these factors mean Board members are insulated from RCMP management, the rank of the Appropriate Officer in a particular instance should be of no import. Furthermore, there was no direct chain of command between the Appropriate Officer and any of the Board members. To that extent, I believe the Commissioner and the Committee were both correct in dismissing the allegation of bias.

[51] I would also venture to add another reason why the Appropriate Officer’s rank should be of no concern in assessing an allegation of real or apprehended bias. Pursuant to s. 43(1) of the RCMP Act, the Appropriate Officer appointed by the Commissioner plays the formal role of prosecutor in initiating the Board hearing. I agree with the Commissioner and the Committee that the Appropriate Officer’s role is very much like that of the Attorney General in criminal prosecutions. Pursuant to s. 45.1 of the RCMP Act, the Appropriate Officer is one of the two parties to the hearing - the other being the member whose conduct is under examination. Unless the Appropriate Officer decides to make representations herself or to testify, her role is quite formal. She is merely representing RCMP management and does not intervene in her personal capacity. There is therefore no link to be drawn between the Appropriate Officer’s actual position in the RCMP’s hierarchy and the nature of the contravention or the severity of the sanction sought.

[52] In any event, I am also of the view that the Commissioner was correct when he decided the applicants had waived their right to argue the hearing was biased, because they did not raise the issue at the earliest possible opportunity. The applicants were provided the Board members’ names in the Notice of Disciplinary Hearing, pursuant to s. 43(5) of the RCMP Act. While it is not entirely clear when the constables were apprised of the Appropriate Officer’s identity, they certainly learned of her name in the course of the hearing. If they had any concerns at that point, they could have immediately objected. Since they did not make such objections at their Board hearing, they could not then argue a reasonable apprehension of bias before the Commissioner.

3) Breach of the duty of fairness

[53] As indicated above, the constables contend the Appropriate Officer’s representative breached the duty of fairness when he conveyed the Appropriate Officer’s personal views, indicating she had lost confidence in them during his closing submissions and telling the Board members of her wishes with respect to the sanction to be imposed. Indeed, it appears the Appropriate Officer’s representative strived to make it clear he was representing the Deputy Commissioner’s personal view. It is worth quoting in full from the transcript to get the flavour of his representations, at pages 86, 87 and 107 of the application record:

Let me be clear right from the start that Deputy Commissioner Busson has no confidence in these Members continuing to be Constables within the RCMP…

…And Deputy Commissioner Busson’s viewpoint and position on this is that the record of these messages, of the communications between these two (2) police officers, shows that Constable Kinsey and Dhaliwal have completely lost their way.

The position of the Deputy Commissioner is that she not only has no confidence in the Members but that their conduct and the attitudes that are shown thereby in the communications they made, show that they are not fit for redeeming themselves either.

Secondly, public confidence. For – as this Board well knows, and I don’t believe anyone would take issue with, for a police force to maintain its legitimacy it must maintain the public’s confidence. And it’s Deputy Commissioner Busson’s view that it is virtually impossible for the RCMP to maintain public confidence if it is represented by Constables Kinsey and Dhaliwal. They are the face of the RCMP. It is most difficult in her position to maintain public confidence.

[54] These comments were most inappropriate. As one of the parties, the Appropriate Officer was afforded a full and ample opportunity “to present evidence, to cross-examine witnesses, and to make representations at the hearing,” by virtue of s. 45.1(8) of the RCMP Act. Yet she chose to participate through a representative, and did not testify. It was therefore a flagrant breach of procedural fairness to introduce her views in the representative’s closing submissions, without any possibility for the applicants to cross-examine her. This was most unfair to the applicants.

[55] The references to the Appropriate Officer’s personal views also raise the distinct possibility that the Board members could have been influenced by her views, considering the seniority of the Deputy Commissioner within the RCMP. As counsel for the applicants put it, there may not have been a direct chain of command, but there may nevertheless have been a direct chair of influence.

[56] It is one thing for Board members to be told that the Appropriate Officer, be it a Deputy Commissioner, is seeking dismissal in her official capacity as respondent. That, in itself, is not sufficient to raise a reasonable apprehension of bias, as already mentioned. It is quite another thing to be put on notice that the Deputy Commissioner personally believes that the applicants are irredeemable, that they have lost their way and that she has lost confidence in these constables. By analogy, it is as if a Crown attorney was to tell the Court that the Attorney General himself or herself was personally of the view that an accused deserves to be punished in such and such a way because of the gravity of his offence. That would be considered unacceptable, even if judges are more secure in their position than Board members. A reasonable and well-informed person could have an apprehension of bias in such a scenario, to the extent that Board members could be perceived to defer to the views of a very senior officer who may eventually have an influence on their career.

[57] The case law is replete with statements emphasizing that impartiality connotes a state of mind, an attitude of openness vis-à-vis the conflicting views being put by opposing parties. There is no doubt a risk that a decision-maker will not be in such a state of mind if the strong personal preferences of one of his organization’s most senior managers are conveyed to him in a forceful yet surreptitious way. Such a risk will be all the more present in an institution as structured and hierarchical as a police force like the RCMP, where respect for the authority of one’s superiors is perhaps more acute than in other professions.

[58] To be fair, the Commissioner acknowledged the problematic nature of the statements the Appropriate Officer’s representative made to the Board. He wrote, at paragraph 94 of his reasons:

In my view, it is not inappropriate for AORs to make this connection [between the employee’s conduct and the ensuing loss of confidence from his employer] when informing the Board of the sanction sought by the AO. However, while it is legitimately the role of AORs to advise the Board that the AO is seeking a particular sanction, it is important that their comments in this regard do not amount to a belabouring of the point or to the expression of the personal views of the AO, which are not relevant and should not be before the Board unless the AO has testified. With this in mind, I understand the concerns raised in this case.

[59] Yet, the Commissioner was of the view that any breach of duty of fairness owed to the two constables was of no import as it would not have affected the outcome of the case. That was so, as already mentioned, because the Board could rely on the testimony of the applicants’ detachment commander to determine that the chain of command had lost confidence in them. This is where I part company with the Commissioner, for the following reasons.

[60] It is well established that a breach of procedural fairness will render the decision invalid in all but the most exceptional circumstances. As the Supreme Court of Canada stated in Cardinal v. Kent Institution, [1985] 2 S.C.R. 643 at page 661:

I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the haring would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

See also: Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202.

[61] In the case at bar, the effect of the breach must be considered from two perspectives. First, as mentioned above, the introduction of Deputy Commissioner Busson’s influential views had the effect of raising a reasonable apprehension of bias.

[62] Second, the inability to cross examine her further exacerbated the negative effect of these comments. The fact that the head of an entire Division lacked confidence in the applicants would presumably have had more impact than similar sentiments from the applicants’ commanding officer. It is true, as the respondents contend that the constables had already been warned for similar conduct and had been the subject of previous discipline actions. But as their track record amply shows, they had also been commended for meritorious actions in the past. Their assessments, while not exceptional, were note particularly negative either. Had it not been for the Deputy Commissioner’s personal views, it is not a given the Board would have concluded their careers were not salvageable. Indeed, one of the options beyond the lesser sanctions provided by s. 45.12(3) could have been to transfer them to another detachment and make sure they did not work together. That option was obviously taken off the table because of the Deputy Commissioner’s views.

[63] In conclusion, I am of the view that the Commissioner erred by concluding the breach of procedural fairness was de minimis, and that it would not have affected the outcome of the case. I am not convinced the result would have been the same had the Board not known the personal views of the Deputy Commissioner. Indeed, the insistence put on the Deputy Commissioner’s views by the AOR may explain the severity of the sanction, which appears at first sight to be out of step with sanctions previously imposed in similar cases. But I need not review the sanction in the present case, since a newly constituted Board will have to come to a fresh determination after a fair hearing.

[64] Be that as it may, I believe the Commissioner erred in upholding the Board’s decision despite the breach of procedural fairness. The basic principles of procedural fairness must be strictly adhered to when the outcome of a case is of such dramatic importance for the individuals involved. With the Commissioner’s decision the constables did not only lose their jobs, they lost their careers. Accordingly, this application for judicial review is granted.

ORDER

THIS COURT ORDERS that this application for judicial review is granted, with costs. The decision of the Commissioner is therefore set aside, and the applicant’s disciplinary case will be referred to a differently constituted Adjudication Board.

"Yves de Montigny"

Judge

APPENDIX

Relevant sections of the Royal Canadian Mounted Police Act. R.S., c. R-9, s. 1.

Initiation

43. (1) Subject to subsections (7) and (8), where it appears to an appropriate officer that a member has contravened the Code of Conduct and the appropriate officer is of the opinion that, having regard to the gravity of the contravention and to the surrounding circumstances, informal disciplinary action under section 41 would not be sufficient if the contravention were established, the appropriate officer shall initiate a hearing into the alleged contravention and notify the officer designated by the Commissioner for the purposes of this section of that decision.

Adjudication board

(2) On being notified pursuant to subsection (1), the designated officer shall appoint three officers as members of an adjudication board to conduct the hearing and shall notify the appropriate officer of the appointments.

Qualifications

(3) At least one of the officers appointed as a member of an adjudication board shall be a graduate of a school of law recognized by the law society of any province.

Notice of hearing

(4) Forthwith after being notified pursuant to subsection (2), the appropriate officer shall serve the member alleged to have contravened the Code of Conduct with a notice in writing of the hearing, together with

(a) a copy of any written or documentary evidence that is intended to be produced at the hearing;

(b) a copy of any statement obtained from any person who is intended to be called as a witness at the hearing; and

Contents of notice

(5) A notice of hearing served on a member pursuant to subsection (4) may allege more than one contravention of the Code of Conduct and shall contain

(a) a separate statement of each alleged contravention;

(b) a statement of the particulars of the act or omission constituting each alleged contravention;

(d) a statement of the right of the member to object to the appointment of any member of the adjudication board as provided in section 44.

Statement of particulars

(6) Every statement of particulars contained in a notice of hearing in accordance with paragraph (5)(b) shall contain sufficient details, including, where practicable, the place and date of each contravention alleged in the notice, to enable the member who is served with the notice to determine each such contravention so that the member may prepare a defence and direct it to the occasion and events indicated in the notice.

Restriction

(7) No hearing may be initiated by an appropriate officer under this section in respect of an alleged contravention of the Code of Conduct by a member if the informal disciplinary action referred to in paragraph 41(1)(g) has been taken against the member in respect of that contravention.

Limitation period

(8) No hearing may be initiated by an appropriate officer under this section in respect of an alleged contravention of the Code of Conduct by a member after the expiration of one year from the time the contravention and the identity of that member became known to the appropriate officer.

Certificate

(9) A certificate purporting to be signed by an appropriate officer as to the time an alleged contravention of the Code of Conduct by a member and the identity of that member became known to the appropriate officer is, in the absence of evidence to the contrary, proof of that time without proof of the signature or official character of the person purporting to have signed the certificate.

R.S., 1985, c. R-10, s. 43; R.S., 1985, c. 8 (2nd Supp.), s. 16.

Adjudication Board

Objection to member of adjudication board

44. (1) Within seven days after the day a member is served with a notice of hearing under subsection 43(4), the member may object in writing to the designated officer referred to in subsection 43(1) to the appointment of any member of the adjudication board, and the designated officer shall on receiving the objection decide whether to reject the objection or to allow the objection and appoint a new member of the board.

Reasons for objection

(2) An objection under subsection (1) shall contain reasons for the objection.

Notice

(3) After the designated officer makes a decision under subsection (1) with respect to an objection, the designated officer shall serve the member making the objection with a notice in writing setting out the decision and the reasons therefor and, if the objection is allowed, the designated officer shall

(a) appoint a new member of the adjudication board; and

(b) set out in the notice

(i) the name of the new member, and

(ii) a statement of the right of the member to object to the appointment of the new member as provided in this section.

Objection to new member

(4) The provisions of this section apply, with such modifications as the circumstances require, with respect to the appointment of a new member under subsection (3) as though the notice setting out the name of the new member were a notice referred to in subsection (1).

Eligibility limited

(5) An officer is not eligible to be appointed as a member of an adjudication board if the officer

(a) has conducted an investigation under section 40 in respect of the conduct that is the subject of the hearing;

(b) was a member of a board of inquiry that conducted an investigation in respect of the conduct that is the subject of the hearing;

(d) is otherwise involved in the initiation or processing of the case against the member whose conduct is the subject of the hearing.

Chairman

(6) After the conclusion of all proceedings under this section, the designated officer shall designate one of the members of the adjudication board as chairman.

R.S., 1985, c. R-10, s. 44; R.S., 1985, c. 8 (2nd Supp.), s. 16.

Powers of adjudication board

45. An adjudication board has, in relation to the case before it, the powers conferred on a board of inquiry, in relation to the matter before it, by paragraphs 24.1(3)(a), (b) and (c).

R.S., 1985, c. R-10, s. 45; R.S., 1985, c. 8 (2nd Supp.), s. 16.

Hearing

Parties

45.1 (1) An appropriate officer who initiates a hearing and the member whose conduct is the subject of the hearing are parties to the hearing.

Notice of time and place of hearing

(2) An adjudication board shall set the place, date and time for a hearing and serve the parties thereto with a notice in writing of that place, date and time.

Date and time of hearing

(3) The date and time for a hearing set pursuant to subsection (2) shall not be less than seven days after the day the member whose conduct is the subject of the hearing is served with the notice under that subsection.

Allegations read

(4) At the commencement of a hearing, the chairman of the adjudication board shall read to the member whose conduct is the subject of the hearing the allegation or allegations of contravention of the Code of Conduct contained in the notice of the hearing and shall thereupon give the member an opportunity to admit or deny each such allegation or to raise, as a preliminary objection to any such allegation, the fact that the informal disciplinary action referred to in paragraph 41(1)(g) has been previously taken against the member in respect of the act or omission constituting any such allegation or that the act or omission was previously the subject of a hearing under this section, but nothing in this subsection affects the validity of a new hearing ordered under this Part.

Refusal

(5) Where a member does not admit, deny or raise a preliminary objection to an allegation read to the member pursuant to subsection (4), the member is deemed to have denied the allegation.

Dismissal where objection established

(6) Where a preliminary objection raised pursuant to subsection (4) is established to the satisfaction of the adjudication board, the board shall dismiss the allegation to which the objection is raised.

Testimony of member

(7) Notwithstanding any other provision of this Part, a member whose conduct is the subject of a hearing is not compelled to testify at the hearing, but the member may give evidence under oath and where the member does so, subsections (11) and (12) apply to the member.

Right to present evidence, etc.

(8) The parties to a hearing shall be afforded a full and ample opportunity, in person or by counsel or a representative, to present evidence, to cross-examine witnesses and to make representations at the hearing.

Representation of witnesses

(9) An adjudication board shall permit any person who gives evidence at a hearing to be represented by counsel or a representative.

Restriction

(10) Notwithstanding section 45 but subject to subsection (11), an adjudication board may not receive or accept any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence.

Witness not excused from testifying

(11) In a hearing, no witness shall be excused from answering any question relating to the case before the adjudication board when required to do so by the board on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.

Answer not receivable

(12) Where the witness is a member, no answer or statement made in response to a question described in subsection (11) shall be used or receivable against the witness in any hearing under this section into an allegation of contravention of the Code of Conduct by the witness, other than a hearing into an allegation that with intent to mislead the witness gave the answer or statement knowing it to be false.

Adjournment

(13) An adjudication board may from time to time adjourn a hearing.

Hearing in private

(14) A hearing before an adjudication board shall be held in private, except that

(a) while a child is testifying at the hearing, the child’s parent or guardian may attend the hearing; and

(b) when authorized by the board, a member may attend the hearing as an observer for the purpose of familiarizing the member with procedures under this Part.

Hearing to be recorded

(15) A hearing before an adjudication board shall be recorded and, if a party to the hearing makes a request under subsection 45.13(2) or the decision of the board is appealed under section 45.14, a transcript thereof shall be prepared.

R.S., 1985, c. 8 (2nd Supp.), s. 16.

Amendment of notice

45.11 (1) Where, at any time during a hearing, it appears to the adjudication board that there is a technical defect in the notice of the hearing under subsection 43(4) that does not affect the substance of the notice, the board, if it is of the opinion that the member whose conduct is the subject of the hearing will not be prejudiced in the conduct of the defence by an amendment, shall make such order for the amendment of the notice as it considers necessary to meet the circumstances of the case.

Procedure

(2) Where a notice of hearing is amended pursuant to subsection (1), the adjudication board shall, if the member whose conduct is the subject of the hearing so requests, adjourn the hearing for such period as the board considers necessary to enable the member to meet the notice as so amended.

Endorsing notice

(3) An order to amend a notice of hearing shall be endorsed on the notice and signed by the chairman of the adjudication board and the hearing shall proceed as if the notice had been originally drawn as amended.

R.S., 1985, c. 8 (2nd Supp.), s. 16.

Decision

45.12 (1) After considering the evidence submitted at the hearing, the adjudication board shall decide whether or not each allegation of contravention of the Code of Conduct contained in the notice of the hearing is established on a balance of probabilities.

In writing

(2) A decision of an adjudication board shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision, reasons for the decision and a statement of the sanction, if any, imposed under subsection (3) or the informal disciplinary action, if any, taken under subsection (4).

Sanctions

(3) Where an adjudication board decides that an allegation of contravention of the Code of Conduct by a member is established, the board shall impose any one or more of the following sanctions on the member, namely,

(a) recommendation for dismissal from the Force, if the member is an officer, or dismissal from the Force, if the member is not an officer;

(b) direction to resign from the Force and, in default of resigning within fourteen days after being directed to do so, recommendation for dismissal from the Force, if the member is an officer, or dismissal from the Force, if the member is not an officer;

(d) forfeiture of pay for a period not exceeding ten work days.

Informal disciplinary action

(4) In addition to or in substitution for imposing a sanction under subsection (3), an adjudication board may take any one or more of the informal disciplinary actions referred to in paragraphs 41(1)(a) to (g).

Restriction

(5) The sanction referred to in paragraph (3)(c) may not be imposed on an inspector or a constable.

Maximum forfeiture of pay

(6) Where an adjudication board decides that two or more allegations of contravention of the Code of Conduct by a member contained in one notice of hearing are established, the total period for forfeiture of pay that may be imposed on the member under subsection (3) in respect of all such allegations shall not exceed ten work days.

Copy of decision to parties when absent

(7) Where a decision of an adjudication board is rendered in the absence of a party to the hearing, the board shall serve that party with a copy of its decision.

R.S., 1985, c. 8 (2nd Supp.), s. 16.

Record

45.13 (1) An adjudication board shall compile a record of the hearing before it, which record shall include

(a) the notice of the hearing under subsection 43(4);

(b) the notice of the place, date and time of the hearing under subsection 45.1(2);

(d) a list of any exhibits entered at the hearing; and

(e) the recording and the transcript, if any, of the hearing.

Delivery of transcript on request

(2) A party to a hearing before an adjudication board shall be furnished, without charge, with a copy of the transcript of the hearing, if the party so requests in writing within seven days after

(a) the day the decision of the board is rendered, if it is rendered in the presence of that party; or

(b) in any other case, the day notice of the decision is given to that party.

R.S., 1985, c. 8 (2nd Supp.), s. 16.

Appeal

Appeal to Commissioner

45.14 (1) Subject to this section, a party to a hearing before an adjudication board may appeal the decision of the board to the Commissioner in respect of

(a) any finding by the board that an allegation of contravention of the Code of Conduct by the member is established or not established; or

(b) any sanction imposed or action taken by the board in consequence of a finding by the board that an allegation referred to in paragraph (a) is established.

Presumption

(2) For the purposes of this section, any dismissal of an allegation by an adjudication board pursuant to subsection 45.1(6) or on any other ground without a finding by the board that the allegation is established or not established is deemed to be a finding by the board that the allegation is not established.

Grounds of appeal

(3) An appeal lies to the Commissioner on any ground of appeal, except that an appeal lies to the Commissioner by an appropriate officer in respect of a sanction or an action referred to in paragraph (1)(b) only on the ground of appeal that the sanction or action is not one provided for by this Act.

Limitation period

(4) No appeal may be instituted under this section after the expiration of fourteen days from the later of

(a) the day the decision appealed from is rendered, if it is rendered in the presence of the party appealing, or the day a copy of the decision is served on the party appealing, if it is rendered in the absence of that party, and

(b) if the party appealing requested a transcript pursuant to subsection 45.13(2), the day the party receives the transcript.

Statement of appeal

(5) An appeal to the Commissioner shall be instituted by filing with the Commissioner a statement of appeal in writing setting out the grounds on which the appeal is made and any submissions in respect thereof.

Statement served on other party

(6) A party appealing a decision of an adjudication board to the Commissioner shall forthwith serve the other party with a copy of the statement of appeal.

Submissions in reply

(7) A party who is served with a copy of the statement of appeal under subsection (6) may, within fourteen days after the day the party is served with the statement, file with the Commissioner written submissions in reply, and if the party does so, the party shall forthwith serve a copy thereof on the party appealing.

R.S., 1985, c. 8 (2nd Supp.), s. 16.

Reference to Committee

45.15 (1) Before the Commissioner considers an appeal under section 45.14, the Commissioner shall refer the case to the Committee.

Exception

(2) Subsection (1) does not apply in respect of an appeal if each allegation that is subject of the appeal was found by the adjudication board to have been established and only one or more of the informal disciplinary actions referred to in paragraphs 41(1)(a) to (g) have been taken by the board in consequence of the finding.

Request by member

(3) Notwithstanding subsection (1), the member whose case is appealed to the Commissioner may request the Commissioner not to refer the case to the Committee and, on such a request, the Commissioner may either not refer the case to the Committee or, if the Commissioner considers that a reference to the Committee is appropriate notwithstanding the request, refer the case to the Committee.

Material to be furnished to Committee

(4) Where the Commissioner refers a case to the Committee pursuant to this section, the Commissioner shall furnish the Committee Chairman with the materials referred to in paragraphs 45.16(1)(a) to (c).

Applicable provisions

(5) Sections 34 and 35 apply, with such modifications as the circumstances require, with respect to a case referred to the Committee pursuant to this section as though the case were a grievance referred to the Committee pursuant to section 33.

R.S., 1985, c. 8 (2nd Supp.), s. 16.

Consideration of appeal

45.16 (1) The Commissioner shall consider an appeal under section 45.14 on the basis of

(a) the record of the hearing before the adjudication board whose decision is being appealed,

(b) the statement of appeal, and

and the Commissioner shall also take into consideration the findings or recommendations set out in the report, if any, of the Committee or the Committee Chairman in respect of the case.

Disposal of appeal against finding

(2) The Commissioner may dispose of an appeal in respect of a finding referred to in paragraph 45.14(1)(a) by

(a) dismissing the appeal and confirming the decision being appealed;

(b) allowing the appeal and ordering a new hearing into the allegation giving rise to the finding; or

(c) where the appeal is taken by the member who was found to have contravened the Code of Conduct, allowing the appeal and making the finding that, in the Commissioner’s opinion, the adjudication board should have made.

Disposal of appeal against sanction

(3) The Commissioner may dispose of an appeal in respect of a sanction or action referred to in paragraph 45.14(1)(b) by

(a) dismissing the appeal and confirming the decision being appealed; or

(b) allowing the appeal and either varying or rescinding the sanction or action.

New hearing

(4) Where the Commissioner orders a new hearing into an allegation pursuant to subsection (2), an adjudication board shall be appointed in accordance with this Part to conduct the hearing and the new hearing shall be held in accordance with this Part as if it were the first hearing into that allegation.

Copy of decision

(5) The Commissioner shall as soon as possible render a decision in writing on an appeal, including reasons for the decision, and serve each of the parties to the hearing before the adjudication board whose decision was appealed and, if the case has been referred to the Committee pursuant to section 45.15, the Committee Chairman with a copy of the decision.

Commissioner not bound

(6) The Commissioner is not bound to act on any findings or recommendations set out in a report with respect to a case referred to the Committee under section 45.15, but if the Commissioner does not so act, the Commissioner shall include in the decision on the appeal the reasons for not so acting.

Commissioner’s decision final

(7) 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.

Rescission or amendment of decision

(8) Notwithstanding subsection (7), the Commissioner may rescind or amend the Commissioner’s decision on an appeal under section 45.14 on the presentation to the Commissioner of new facts or where, with respect to the finding of any fact or the interpretation of any law, the Commissioner determines that an error was made in reaching the decision.

R.S., 1985, c. 8 (2nd Supp.), s. 16; 1990, c. 8, s. 67; 2002, c. 8, s. 182.

Convocation

43. (1) Sous réserve des paragraphes (7) et (8), lorsqu’il apparaît à un officier compétent qu’un membre a contrevenu au code de déontologie et qu’eu égard à la gravité de la contravention et aux circonstances, les mesures disciplinaires simples visées à l’article 41 ne seraient pas suffisantes si la contravention était établie, il convoque une audience pour enquêter sur la contravention présumée et fait part de sa décision à l’officier désigné par le commissaire pour l’application du présent article.

Constitution d’un comité d’arbitrage

(2) Dès qu’il est avisé de cette décision, l’officier désigné nomme trois officiers à titre de membres d’un comité d’arbitrage pour tenir l’audience et en avise l’officier compétent.

Conditions d’admissibilité

(3) Au moins un des trois officiers du comité d’arbitrage est un diplômé d’une école de droit reconnue par le barreau d’une province.

Avis d’audience

(4) Dès qu’il est ainsi avisé, l’officier compétent signifie au membre soupçonné d’avoir contrevenu au code de déontologie un avis écrit de l’audience accompagné des documents suivants :

a) une copie de la preuve écrite ou documentaire qui sera produite à l’audience;

b) une copie des déclarations obtenues des personnes qui seront citées comme témoins à l’audience;

c) une liste des pièces qui seront produites à l’audience.

Contenu de l’avis

(5) L’avis d’audience signifié à un membre en vertu du paragraphe (4) peut alléguer plus d’une contravention au code de déontologie et doit contenir les éléments suivants :

a) un énoncé distinct de chaque contravention alléguée;

b) un énoncé détaillé de l’acte ou de l’omission constituant chaque contravention alléguée;

c) le nom des membres du comité d’arbitrage;

d) l’énoncé du droit d’opposition du membre à la nomination de tout membre du comité d’arbitrage comme le prévoit l’article 44.

Énoncé détaillé

(6) L’énoncé détaillé visé à l’alinéa (5)b) doit être suffisamment précis et mentionner, si possible, le lieu et la date où se serait produite chaque contravention alléguée dans l’avis d’audience, afin que le membre qui en reçoit signification puisse connaître la nature des contraventions alléguées et préparer sa défense en conséquence.

Restriction

(7) L’officier compétent ne peut convoquer une audience en vertu du présent article relativement à une contravention au code de déontologie censément commise par un membre à qui la mesure disciplinaire simple visée à l’alinéa 41(1)g) a déjà été imposée à l’égard de cette contravention.

Prescription

(8) L’officier compétent ne peut convoquer une audience en vertu du présent article relativement à une contravention au code de déontologie censément commise par un membre plus d’une année après que la contravention et l’identité de ce membre ont été portées à sa connaissance.

Certificat

(9) En l’absence de preuve contraire, un certificat présenté comme signé par l’officier compétent et faisant état du moment où ont été portées à sa connaissance une contravention au code de déontologie censément commise par un membre et l’identité de ce dernier, constitue une preuve de ce moment sans qu’il soit nécessaire d’établir l’authenticité de la signature ni la qualité du signataire.

L.R. (1985), ch. R-10, art. 43; L.R. (1985), ch. 8 (2^e suppl.), art. 16.

Comité d’arbitrage

Opposition au choix d’un des membres du comité d’arbitrage

44. (1) Un membre à qui est signifié l’avis d’audience visé au paragraphe 43(4) peut, dans les sept jours de la signification, adresser par écrit à l’officier désigné par le commissaire pour l’application du paragraphe 43(1) son opposition à la nomination de tout membre du comité d’arbitrage; sur réception de l’opposition, l’officier ainsi désigné soit la rejette, soit l’accueille et nomme un autre membre.

Motifs

(2) L’opposition visée au paragraphe (1) doit être motivée.

Avis

(3) L’officier désigné signifie au membre qui s’est opposé un avis écrit de sa décision et de ses motifs; s’il accueille l’opposition :

a) il nomme un nouveau membre du comité d’arbitrage;

b) il inclut dans l’avis :

(i) le nom du nouveau membre du comité d’arbitrage,

(ii) la mention du droit d’opposition du membre à la nomination du nouveau membre, comme il est prévu au présent article.

Opposition au nouveau membre

(4) Les dispositions du présent article s’appliquent, compte tenu des adaptations de circonstance, à la nomination d’un nouveau membre en vertu du paragraphe (3) comme si l’avis mentionnant le nom de ce dernier était l’avis visé au paragraphe (1).

Admissibilité

(5) Ne peut être nommé à titre de membre d’un comité d’arbitrage l’officier qui :

a) a tenu l’enquête visée à l’article 40 sur la conduite qui fait l’objet de l’audience;

b) était membre d’une commission d’enquête chargée d’enquêter sur la conduite qui fait l’objet de l’audience;

c) est l’officier supérieur immédiat du membre dont la conduite fait l’objet de l’audience;

d) est mêlé à l’affaire faisant l’objet de l’audience pour avoir provoqué son instruction ou y avoir participé.

Président

(6) À l’issue des procédures en vertu du présent article, l’officier désigné nomme un des membres du comité d’arbitrage à titre de président.

L.R. (1985), ch. R-10, art. 44; L.R. (1985), ch. 8 (2^e suppl.), art. 16.

Pouvoirs du comité d’arbitrage

45. Le comité d’arbitrage possède, relativement à l’affaire qu’il préside, les pouvoirs conférés à une commission d’enquête par les alinéas 24.1(3)a), b) et c).

L.R. (1985), ch. R-10, art. 45; L.R. (1985), ch. 8 (2^e suppl.), art. 16.

Audience

Parties

45.1 (1) L’officier compétent qui convoque une audience ainsi que le membre dont la conduite fait l’objet de cette audience y sont tous deux parties.

Avis de l’audience

(2) Le comité d’arbitrage fixe la date, l’heure et le lieu de l’audience; il en signifie un avis écrit aux parties à l’audience.

Délai minimal

(3) L’audience doit se tenir au moins sept jours après la date de signification de cet avis au membre dont la conduite fait l’objet de l’audience.

Lecture des allégations

(4) Au début de l’audience, le président du comité d’arbitrage lit au membre dont la conduite fait l’objet de l’audience les contraventions alléguées au code de déontologie énoncées dans l’avis d’audience; il accorde dès lors au membre la possibilité d’admettre ou de nier chacune des allégations ou de soulever, à titre d’objection préliminaire à chacune d’elles, le fait que la mesure disciplinaire simple visée à l’alinéa 41(1)g) lui a été imposée à l’égard de l’acte ou omission allégué, ou que cet acte ou omission a déjà fait l’objet d’une audience visée au présent article; cependant, le présent paragraphe n’a pas pour effet d’invalider une nouvelle audience tenue en vertu de la présente partie.

Rejet

(5) Le membre qui n’admet pas ou ne nie pas une allégation dont lecture lui est faite conformément au paragraphe (4), ou ne soulève pas une objection préliminaire à cet égard, est réputé avoir nié l’allégation.

Rejet d’une allégation — Objection bien fondée

(6) Le comité d’arbitrage, s’il est convaincu du bien-fondé d’une objection préliminaire formulée conformément au paragraphe (4), rejette l’allégation l’ayant suscitée.

Déposition du membre

(7) Par dérogation à toute autre disposition de la présente partie, le membre dont la conduite fait l’objet de l’audience n’est pas tenu d’y témoigner; il peut, cependant, faire une déposition sous serment, auquel cas les paragraphes (11) et (12) s’appliquent à lui.

Droit de présenter des éléments de preuve, etc.

(8) Les parties à une audience doivent avoir toute latitude de présenter des éléments de preuve à l’audience, d’y contre-interroger les témoins et d’y faire des observations, soit personnellement, soit par l’intermédiaire d’un avocat ou autre représentant.

Représentation des témoins

(9) Le comité d’arbitrage doit permettre aux témoins de se faire représenter à l’audience par un avocat ou par un représentant.

Restriction

(10) Par dérogation à l’article 45 mais sous réserve du paragraphe (11), le comité d’arbitrage ne peut recevoir ou accepter des éléments de preuve ou autres renseignements non recevables devant un tribunal du fait qu’ils sont protégés par le droit de la preuve.

Obligation des témoins de déposer

(11) Au cours de l’audience, un témoin n’est pas dispensé de répondre aux questions portant sur l’affaire dont est saisi le comité lorsque ce dernier l’exige, au motif que sa réponse peut l’incriminer ou l’exposer à des poursuites ou à une peine.

Non-recevabilité des réponses

(12) Dans le cas où le témoin est un membre, les réponses ou déclarations faites à la suite des questions visées au paragraphe (11) ne peuvent être utilisées ni ne sont recevables contre lui, au cours d’une audience tenue en vertu du présent article et portant sur l’allégation selon laquelle il a contrevenu au code de déontologie, autre qu’une audience portant sur l’allégation selon laquelle il a fait une telle réponse ou déclaration, qu’il savait être fausse, dans l’intention de tromper.

Ajournement

(13) Le comité d’arbitrage peut ajourner l’audience.

Huis clos

(14) L’audience se tient à huis clos; toutefois :

a) les parents peuvent assister au témoignage de leur enfant devant le comité d’arbitrage ou le tuteur, à celui de son pupille;

b) un membre peut, s’il reçoit l’autorisation du comité d’arbitrage, assister à l’audience à titre d’observateur afin de se familiariser avec la procédure prévue à la présente partie.

Enregistrement de l’audience

(15) L’audience est enregistrée et il en est fait une transcription dans le cas où l’une des parties à l’audience en fait la demande conformément au paragraphe 45.13(2) ou en appelle de la décision du comité d’arbitrage conformément à l’article 45.14.

L.R. (1985), ch. 8 (2^e suppl.), art. 16.

Modification de l’avis

45.11 (1) Lorsque, au cours de l’audience, le comité d’arbitrage constate que l’avis d’audience prévu au paragraphe 43(4) est entaché d’un défaut technique ne portant pas sur le fond, il doit, s’il est d’avis qu’une modification ne sera pas préjudiciable au membre dont la conduite fait l’objet de l’audience dans la présentation de sa défense, rendre l’ordonnance modificative qu’il estime indiquée dans les circonstances.

Procédure

(2) Lorsqu’un avis d’audience est modifié conformément au paragraphe (1), le comité d’arbitrage, à la demande du membre dont la conduite fait l’objet de l’audience, ajourne celle-ci pour la période qui, d’après lui, permettrait à ce membre de répondre à l’avis ainsi modifié.

Mention sur l’avis

(3) L’ordonnance portant modification de l’avis d’audience est inscrite sur l’avis et signée par le président du comité d’arbitrage; l’audience se déroule alors comme si l’avis avait été rédigé initialement tel qu’il se lit une fois modifié.

L.R. (1985), ch. 8 (2^e suppl.), art. 16.

Décision

45.12 (1) Le comité d’arbitrage décide si les éléments de preuve produits à l’audience établissent selon la prépondérance des probabilités chacune des contraventions alléguées au code de déontologie énoncées dans l’avis d’audience.

Décision par écrit

(2) La décision du comité d’arbitrage est consignée par écrit; elle comprend notamment l’exposé de ses conclusions sur les questions de fait essentielles à la décision, les motifs de la décision et l’énoncé, le cas échéant, de la peine imposée en vertu du paragraphe (3) ou de la mesure disciplinaire simple prise en vertu du paragraphe (4).

Peines

(3) Si le comité d’arbitrage décide qu’un membre a contrevenu au code de déontologie, il lui impose une ou plusieurs des peines suivantes :

a) recommander que le membre soit congédié de la Gendarmerie, s’il est officier, ou, s’il ne l’est pas, le congédier de la Gendarmerie;

b) ordonner au membre de démissionner de la Gendarmerie, et si ce dernier ne s’exécute pas dans les quatorze jours suivants, prendre à son égard la mesure visée à l’alinéa a);

c) recommander la rétrogradation du membre, s’il est officier, ou, s’il ne l’est pas, le rétrograder;

d) imposer la confiscation de la solde pour une période maximale de dix jours de travail.

Mesure disciplinaire simple

(4) Le comité d’arbitrage peut, en outre ou à la place des peines visées au paragraphe (3), imposer une ou plusieurs des mesures disciplinaires simples visées aux alinéas 41(1)a) à g).

Restriction

(5) La peine visée à l’alinéa (3)c) ne peut être imposée à un inspecteur ni à un gendarme.

Confiscation totale de solde

(6) Lorsque le comité d’arbitrage décide que deux ou plusieurs allégations énoncées dans un avis d’audience et portant qu’un membre a contrevenu au code de déontologie ont été établies, la confiscation totale de solde imposée à leur égard en vertu du paragraphe (3) est de dix jours de travail.

Copie de la décision en cas d’absence

(7) Lorsque le comité d’arbitrage rend sa décision en l’absence d’une partie à l’audience, il lui en signifie copie.

L.R. (1985), ch. 8 (2^e suppl.), art. 16.

Dossier

45.13 (1) Le comité d’arbitrage établit le dossier de l’audience tenue devant lui; ce dossier comprend notamment :

a) l’avis d’audience prévu au paragraphe 43(4);

b) l’avis de la date, de l’heure et du lieu de l’audience signifié conformément au paragraphe 45.1(2);

c) une copie de la preuve écrite ou documentaire produite à l’audience;

d) la liste des pièces produites à l’audience;

e) l’enregistrement et la transcription de l’audience, s’il y a lieu.

Transmission du dossier

(2) Toute partie à l’audience reçoit gratuitement une copie de la transcription de l’audience si elle en fait la demande par écrit dans les sept jours à compter :

a) soit de la date où est rendue la décision du comité d’arbitrage, lorsqu’elle est rendue en la présence de cette partie;

b) soit de la date où cette partie a reçu avis de la décision, dans les autres cas.

L.R. (1985), ch. 8 (2^e suppl.), art. 16.

Appel

Appel interjeté au commissaire

45.14 (1) Sous réserve des autres dispositions du présent article, toute partie à une audience tenue devant un comité d’arbitrage peut en appeler de la décision de ce dernier devant le commissaire:

a) soit en ce qui concerne la conclusion selon laquelle est établie ou non, selon le cas, une contravention alléguée au code de déontologie;

b) soit en ce qui concerne toute peine ou mesure imposée par le comité après avoir conclu que l’allégation visée à l’alinéa a) est établie.

Présomption

(2) Pour l’application du présent article, le rejet par un comité d’arbitrage d’une allégation en vertu du paragraphe 45.1(6) ou pour tout autre motif, sans conclusion sur le bien-fondé de l’allégation, est réputé être une conclusion portant que cette dernière n’est pas établie.

Motifs d’appel

(3) Le commissaire entend tout appel, quel qu’en soit le motif; toutefois, l’officier compétent ne peut en appeler devant le commissaire de la peine ou de la mesure visée à l’alinéa (1)b) qu’au motif que la présente loi ne les prévoit pas.

Prescription

(4) Les appels interjetés en vertu du présent article se prescrivent par quatorze jours à compter :

a) de la date où est rendue la décision portée en appel lorsqu’elle a été rendue en présence de l’appelant ou, dans les autres cas, de la date où cette partie a reçu avis de la décision;

b) de la date où l’appelant qui en a fait la demande a reçu la transcription visée au paragraphe 45.13(2), si cette date est postérieure à celles visées à l’alinéa a).

Mémoire d’appel

(5) Un appel est interjeté devant le commissaire par le dépôt auprès de lui d’un mémoire d’appel exposant les motifs de l’appel, ainsi que l’argumentation y afférente.

Signification du mémoire à l’autre partie

(6) L’appelant signifie sans délai à l’autre partie copie du mémoire d’appel.

Réplique écrite

(7) La partie à qui copie du mémoire d’appel est signifiée peut y répliquer par le dépôt auprès du commissaire, dans les quatorze jours suivant la date de la signification, d’argumentations écrites dont elle signifie copie sans délai à l’appelant.

L.R. (1985), ch. 8 (2^e suppl.), art. 16.

Renvoi devant le Comité

45.15 (1) Avant d’étudier l’appel visé à l’article 45.14, le commissaire le renvoie devant le Comité.

Exception

(2) Le paragraphe (1) ne s’applique pas dans le cas où le comité d’arbitrage décide que chacune des allégations dont il a été interjeté appel a été établie et qu’il a pris seulement une ou plusieurs des mesures disciplinaires simples prévues aux alinéas 41(1)a) à g).

Demande du membre

(3) Par dérogation au paragraphe (1), le membre dont la cause est portée en appel devant le commissaire peut lui demander de ne pas la renvoyer devant le Comité; le commissaire peut accéder à cette demande, ou la rejeter s’il estime plus indiqué un renvoi devant le Comité.

Documents à transmettre au Comité

(4) En cas de renvoi devant le Comité conformément au présent article, le commissaire transmet au président du Comité les documents visés aux alinéas 45.16(1)a) à c).

Dispositions applicables

(5) Les articles 34 et 35 s’appliquent, compte tenu des adaptations de circonstance, aux affaires renvoyées devant le Comité conformément au présent article, comme s’il s’agissait d’un grief renvoyé devant ce même Comité conformément à l’article 33.

L.R. (1985), ch. 8 (2^e suppl.), art. 16.

Étude de l’appel

45.16 (1) Le commissaire étudie l’affaire portée en appel devant lui en vertu de l’article 45.14 en se fondant sur les documents suivants :

a) le dossier de l’audience tenue devant le comité d’arbitrage dont la décision est portée en appel;

b) le mémoire d’appel;

c) les argumentations écrites qui lui ont été soumises.

Il tient également compte, s’il y a lieu, des conclusions ou des recommandations exposées dans le rapport du Comité ou de son président.

Décisions rendues en appel

(2) Le commissaire, lorsqu’il est saisi d’un appel interjeté contre la conclusion visée à l’alinéa 45.14 (1)a), peut :

a) soit rejeter l’appel et confirmer la décision portée en appel;

b) soit accueillir l’appel et ordonner la tenue d’une nouvelle audience portant sur l’allégation qui a donné lieu à la conclusion contestée;

c) soit accueillir l’appel, s’il est interjeté par le membre reconnu coupable d’une contravention au code de déontologie, et rendre la conclusion que, selon lui, le comité d’arbitrage aurait dû rendre.

Décision concernant une sanction

(3) Le commissaire, lorsqu’il est saisi d’un appel interjeté contre la peine ou la mesure visée à l’alinéa 45.14(1)b), peut :

a) soit rejeter l’appel et confirmer la décision portée en appel;

b) soit accueillir l’appel et modifier la peine ou la mesure imposée.

Nouvelle audience

(4) Lorsque le commissaire ordonne, conformément au paragraphe (2), la tenue d’une nouvelle audience portant sur une allégation, un comité d’arbitrage chargé de la conduite de l’audience est nommé conformément à la présente partie; l’audience est tenue conformément à la présente partie comme s’il s’agissait de la première audience relativement à cette allégation.

Signification de la décision

(5) Le commissaire rend, dans les meilleurs délais, une décision écrite et motivée sur tout appel dont il est saisi, et il en signifie copie à chacune des parties à l’audience tenue devant le comité d’arbitrage dont la décision a été portée en appel, ainsi qu’au président du Comité lorsque l’affaire a été renvoyée devant le Comité conformément à l’article 45.15.

Non-assujettissement du commissaire

(6) Le commissaire n’est pas lié par les conclusions ou les recommandations contenues dans un rapport portant sur une affaire qui a été renvoyée devant le Comité conformément à l’article 45.15; s’il choisit de s’en écarter, il doit toutefois motiver son choix dans sa décision.

Caractère définitif de la décision

(7) La décision du commissaire portant sur un appel interjeté en vertu de l’article 45.14 est définitive et exécutoire et, sous réserve du contrôle judiciaire prévu par la Loi sur les Cours fédérales, n’est pas susceptible d’appel ou de révision en justice.

Annulation ou modification de la décision

(8) Par dérogation au paragraphe (7), le commissaire peut annuler ou modifier sa décision à l’égard d’un appel interjeté en vertu de l’article 45.14 si de nouveaux faits lui sont soumis ou s’il constate avoir fondé sa décision sur une erreur de fait ou de droit.

L.R. (1985), ch. 8 (2^e suppl.), art. 16; 1990, ch. 8, art. 67; 2002, ch. 8, art. 182.

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET: T-1180-06

STYLE OF CAUSE: DERI KINSEY

THE ATTORNEY GENERAL FOR CANADA

et al.

PLACE OF HEARING: VANCOUVER, British Columbia

DATE OF HEARING: April 10, 2007

REASONS FOR ORDER

AND ORDER BY: JUSTICE DE MONTIGNY

DATED: May 22, 2007

APPEARANCES:

Mr. Martin Bauer	FOR THE APPLICANT

Mr. Jan Brongers	FOR THE RESPONDENTS

SOLICITORS OF RECORD:

Mr. Martin Bauer

Bauer & Company Law Offices

200- 5050 Kingsway

Burnaby, British Columbia

V5H 4H2

FOR THE APPLICANT

Mr. John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR THE RESPONDENTS

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET: T-1181-06

STYLE OF CAUSE: SATNAM DHALIWAL

THE ATTORNEY GENERAL FOR CANADA et al.

PLACE OF HEARING: VANCOUVER, British Columbia

DATE OF HEARING: April 10, 2007

REASONS FOR ORDER

AND ORDER BY: JUSTICE DE MONTIGNY

DATED: May 22, 2007

APPEARANCES:

Mr. Art Vertlieb

Ms. Bandna Ubhi

FOR THE APPLICANT

Mr. Jan Brongers

FOR THE RESPONDENTS

SOLICITORS OF RECORD:

Mr. Art Vertlieb, QC

Ms. Bandna Ibhi

VERTLIEB DOSANJH

Barristers & Solicitors

302 – 4088 Cambie Street

Vancouver, BC V5Z 2X8

F OR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR THE RESPONDENTS

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Kinsey v. Canada (Attorney General), 2007 FC 543

Citations2007 FC 543

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2007 FC 543