Date:
20130125
Docket:
T-889-11
Citation:
2013 FC 71
Ottawa, Ontario,
January 25, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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SHAWN P. ELHATTON
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
and APPROPRIATE
OFFICER “J”
DIVISION OF THE
ROYAL CANADIAN MOUNTED POLICE
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant is a member of the Royal Canadian Mounted Police (RCMP), holding the
rank of Corporal. Following a disciplinary hearing regarding allegations of
misconduct, the Commissioner of the RCMP exercising his authority under section
45.16 of the Royal Canadian Mounted Police Act, RSC, 1985, c R-10 (Act),
terminated the applicant’s employment for disgraceful conduct. The applicant
seeks judicial review of that decision. For the reasons that follow the
application is granted.
The Allegations
[2]
On
November 10, 2003, the applicant was served with a notice of disciplinary
hearing regarding three allegations of misconduct said to have occurred on
December 13, 2002 and July 7, 2003. Fifteen months later, he was served with a
second notice on February 28, 2005 regarding three additional allegations said
to have occurred between 1993 and 1998.
[3]
The
allegations were as follows:
(1)
Mitten
Incident: The applicant acted in an aggressive and intimidating manner towards
his former spouse, Constable (Cst.) Elhatton, and her fiancé while they were
picking up the applicant’s son outside of his residence. The applicant yelled
offensive, insulting and vulgar language, made an obscene gesture, shook his
finger, and threw mittens. There was a marked RCMP vehicle at the end of his
driveway. Cst. Elhatton’s fiancé is a member of another police force and
reported the applicant’s conduct.
(2)
Office
Incident: The applicant used offensive and insulting language towards a member
superior in rank, calling him “spineless” and “gutless”, while pointing his
finger in the superior-ranking member’s face.
(3)
Disobeying
a Lawful Order: The applicant failed to obey a lawful order of a superior
ranking member. The applicant was ordered to attend an appointment with a
psychologist following a Health Services Officer’s recommendation that he receive
anger management counselling. He did not attend.
(4)
Car
Wash Incident: The applicant struck Cst. Elhatton with a closed fist.
(5)
Gun
Incident: The applicant put Cst. Elhatton’s hand around his service firearm and
pointed it at his head during an argument. He said, “If you hate me so much,
just shoot me, shoot me now.” Cst. Elhatton told him to put it down and he
did.
(6)
Vacation
Incident: The applicant grabbed Cst. Elhatton by the arm and hit her forearm
four or five times.
[4]
Failure
to obey a lawful order is a disciplinary offence contrary to section 40 of the Royal
Canadian Mounted Police Regulations, 1988, SOR/88-361 (Regulations).
The remaining allegations constitute disgraceful conduct contrary to subsection
39(1) of the Regulations.
Legislative Scheme
[5]
The
Act provides for both formal
and informal disciplinary processes. Under section 43 of the Act, an
Appropriate Officer may initiate a hearing when it appears that a member has
contravened the Code of Conduct and the Appropriate Officer is of the opinion
that informal disciplinary action would be insufficient.
[6]
The
Act creates a
three-stage process for formal disciplinary action. The process begins with a
written notice of the allegation(s), and disclosure of evidence. The
allegations are heard by a three member Adjudication Board (the Board). The
Board decides if the allegations are established on a balance of probabilities
and imposes a sanction. There are progressively severe sanctions under the Act:
forfeiture of up to ten days pay, demotion, a direction to resign, and
dismissal.
[7]
Parties
can appeal from the Board’s decision to the Commissioner of the RCMP (the
Commissioner). Before considering the appeal, the Commissioner must refer the
case to the External Review Committee (ERC), an independent civilian body.
The ERC reviews the Board’s decision and provides a non-binding recommendation
to the Commissioner.
[8]
The
Commissioner’s power on appeal is set out in section 45.16 of the Act.
The Commissioner must consider the record of the hearing before the Board, the
statement of appeal and any written submissions. The Commissioner must also
consider the ERC recommendation. The Commissioner, under subsection 45.16(6)
of the Act, is not bound by the findings and recommendations of the
Board and the ERC, but where he departs from them, he must give reasons.
[9]
The
Commissioner may dispose of an appeal in one of three ways: (a) dismissing the
appeal and confirming the decision; (b) allowing the appeal and ordering a new
hearing; or (c) in the case of an appeal by the member, allowing the appeal and
making the finding that the Board should have made. It should be noted that
the Commissioner does not have the power to dismiss an appeal by a member and
make the finding that the Board should have made.
[10]
With
respect to the sanction, under subsection 45.16(3) of the Act the
Commissioner may dismiss the appeal from a sanction and confirm the sanction,
or allow the appeal and either vary or rescind the sanction.
The Adjudication Board’s Decision
[11]
On
September 6, 2005, the Board decided that all six allegations were
substantiated. The Board found that the applicant’s conduct had brought
discredit to the RCMP. The Board found that the order to attend counselling
had been lawful.
[12]
The
applicant denied the allegations and argued that Cst. Elhatton had brought the
complaints in order to obtain sole custody of their children. The Board
rejected this and found that Cst. Elhatton “…withstood the scrutiny of cross-examination
and did not falter on crucial points.”
[13]
The
Board found that the applicant lacked credibility. He denied having a criminal
record before being confronted with his conviction for assaulting a prisoner in
1998. He claimed to be unaware that this had resulted in a criminal record.
The Board found that he minimized the conviction to the point of misleading the
Board. He had also been disciplined for that incident.
[14]
Additionally,
the Board noted that four witnesses, the District Commander, a potential
supervisor, Cst. Elhatton and her fiancé, all described incidents of the
applicant’s loss of control or anger. The applicant’s mother also testified
that she admonished him for raising his voice to Cst. Elhatton. However, the
applicant’s mother denied that the applicant struck Cst. Elhatton. The Board
found that she was lying to protect him. The Board noted there were
discrepancies between her testimony and that of the applicant.
[15]
The
District Commander testified that he did not have confidence in the applicant’s
ability “to control his emotions to be able to do the kind of things that we
expect our members to do on a day-to-day basis”. The District Commander
recommended that he be dismissed.
[16]
A
social worker testified that the applicant had taken six to seven hours of
anger management counselling. The applicant’s representative submitted that
the applicant had experienced stress and tragedies in his personal life.
[17]
The
Board decided that the applicant had displayed a pattern of inappropriate
behaviour. He had not taken responsibility for his actions and was not honest
and forthright. His behaviour towards his spouse, including dangerous misuse
of a weapon, demonstrated lack of self-control and judgment, basic requirements
for peace officers. The Board directed the applicant to resign within fourteen
days, or be dismissed.
[18]
The
applicant accepted the Board’s decision in respect of the first two allegations
but appealed the Board’s decision regarding the remaining four allegations. He
also appealed from the decision with respect to the sanction.
External Review Committee
[19]
At
the ERC, the applicant submitted new evidence, including evidence that Cst.
Elhatton had committed perjury before the Board. Cst. Elhatton had testified
that she met her fiancé after separating from the applicant. However, another
RCMP member stated that he saw them together on two occasions prior to the
separation.
[20]
The
applicant’s representative asked the Board to allow this witness to testify.
The representative did not tell the Board about the nature and purpose of the
testimony. The Appropriate Officer’s representative objected because the
proposed witness had observed some of the testimony of witnesses at the
hearing. The Board did not permit the witness to testify.
[21]
The
ERC considered the test for allowing new evidence and concluded that the
perjury allegation should be taken into account. The ERC found errors with the
Board decision but determined that the errors were minor when considered in
context. For example, the Board should not have considered the applicant’s
comment “why now?” regarding the timing of the allegations to be an admission
of guilt.
[22]
The
ERC issued its recommendations on February 10, 2009. It recommended that the
Commissioner find that Allegation 3 was not established because the RCMP may
only order that a member attend a health assessment, not treatment. The ERC
also recommended that the Commissioner order a new hearing regarding Allegations
4, 5 and 6, in light of the alleged perjury.
[23]
The
ERC recommended a reprimand and forfeiture of pay as the sanction for Allegations
1 and 2. If the Commissioner did not allow the appeal on the merits, the ERC
recommended he find that the Board erred in ordering the applicant’s
resignation or dismissal.
The Commissioner’s Decision
[24]
The
Commissioner issued his decision on April 29, 2011. The Commissioner agreed
with the ERC that there was credible, relevant evidence regarding Cst.
Elhatton’s alleged perjury and decided to consider this additional evidence.
[25]
The
Commissioner also decided he could consider the outcome of the perjury
investigation. The Fredericton Police Force had investigated Cst. Elhatton and
the alleged perjury and determined that there was no case which could be taken
to the Crown Attorney for consideration. Another police force reviewed the
investigation and agreed.
[26]
Based
on the outcome of that investigation the Commissioner found that the perjury
allegation would not have altered the Board’s decision. He thus found that
Cst. Elhatton was credible and that her testimony established Allegations 4, 5
and 6.
[27]
The
Commissioner upheld the sanction of dismissal, for the following reasons:
… although I am satisfied that
only five of the six allegations against Corporal Elhatton are established, I
still consider that a sanction of dismissal is reasonable considering all of
the factors, including the serious nature of the contraventions, the related
prior discipline, the Appellant’s lack of sincere remorse, the testimony of the
[District Commander] that the Appellant was unable to control his emotions or
take responsibility for his actions, the [District Commander]’s lack of
confidence in the Appellant and belief that he is not suitable for the RCMP,
the absence of support from the [Appropriate Officer], and the Appellant’s poor
rehabilitative potential. Corporal Elhatton’s misconduct demonstrates a severe
lack of the core values of professionalism, respect, accountability, integrity
and honesty and the character it reveals has seriously impaired the essential
trust and confidence this organization is entitled to place on him as an
employee. I find that the mitigating factors are clearly outweighed by the
aggravating factors in this case.
Issue
[28]
The
applicant raises a single issue, namely whether the Commissioner erred in
failing to find that the allegations of perjury required a new hearing before
the Board. The applicant did not pursue the argument in respect of the
reasonableness of the sanction.
[29]
The
standard of review of the Commissioner is reasonableness. The Commissioner is
entitled to considerable deference for both his determination on the Code of
Conduct allegations and the appropriate sanction. The Commissioner has
specialized expertise on the realities of policing and what is required to
maintain the integrity and professionalism of the RCMP: Gill v Canada (Attorney General), 2007 FCA 305.
[30]
The
Commissioner has vast experience in assessing the exigencies of policing,
including the appropriate use of force and what behaviour in officers’ personal
and professional lives may reflect on the professionalism of the RCMP. It is
the Commissioner who is accountable for the reputation of the RCMP – not the
Court. Thus, in assessing whether behaviour constitutes disgraceful conduct,
for example, the Court would invariably approach the Commissioner’s decision
with the Supreme Court of Canada’s instructions in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 48 as a guiding principle:
Deference is both an attitude of
the court and a requirement of the law of judicial review. It does not
mean that courts are subservient to the determinations of decision makers, or
that courts must show blind reverence to their interpretations, or that they
may be content to pay lip service to the concept of reasonableness review while
in fact imposing their own view. Rather, deference imports respect for
the decision-making process of adjudicative bodies with regard to both the
facts and the law. The notion of deference “is rooted in part in a
respect for governmental decisions to create administrative bodies with
delegated powers” (Canada (Attorney General) v. Mossop, 1993 CanLII 164
(SCC), [1993] 1 S.C.R. 554, at p. 596, per L’Heureux-Dubé J.,
dissenting). We agree with David Dyzenhaus where he states that the
concept of “deference as respect” requires of the courts “not submission but a
respectful attention to the reasons offered or which could be offered in
support of a decision”: “The Politics of Deference: Judicial Review and
Democracy”, in M. Taggart, ed., The Province of Administrative Law
(1997), 279, at p. 286 (quoted with approval in Baker, at para. 65, per
L’Heureux-Dubé J.; Ryan, at para. 49).
[31]
It
is also to be noted that subsection 45.16(7) of the Act includes a
privative clause. In this context the Attorney General of Canada contends for
a reasonableness standard of review, arguing that if the Commissioner has the
discretion to accept fresh evidence, he has the discretion to weigh that same
evidence. I agree.
Situating the
Evidence
[32]
The
Commissioner determined that Cst. Elhatton’s credibility “was the foundation of
the Board’s decision.”
[33]
The
gravamen of the error, as urged by the applicant, is that the
Commissioner made his own decision as to credibility, without the benefit of a
hearing. The witness was not fully cross-examined and in consequence the
Board, the ERC and the Commissioner were deprived of the assurance of
truthfulness that falls from cross-examination. It is contended that this was
either a breach of procedural fairness, engaging a correctness standard of
review, or an unreasonable decision.
[34]
The
Commissioner was faced with a situation where relevant evidence pertaining to
the credibility of the key witness was not brought before the Board. The
Commissioner found the evidence to be relevant:
After reviewing the Appellant’s
additional submissions, as well as the Respondent’s reply, I agree with the ERC
that information that an observer who witnessed Cst. X and her fiancé
testifying about when they had first met was of the opinion that they were
lying under oath, is relevant information that the Appellant was not permitted
to bring before the Board. The fact that Cst. X and her fiancé met before or
after the separation is irrelevant to the allegations that were before the
Board. However, it is relevant to the key issue of credibility, which
was the foundation of the Board’s decision in relation to the car wash, gun,
mitten, and vacation incidents.
[35]
The
Commissioner also found the evidence to be credible:
I also find that this information
is credible - a police investigator in another disciplinary hearing testified
under oath that he had found evidence that supported the Appellant’s assertion
that, contrary to their testimony under oath in this disciplinary hearing, Cst.
X and her fiancé had met prior to the date of the separation.
[36]
In
consequence, the Commissioner concluded:
I therefore agree with the ERC,
as noted at paragraph 73 of its Report, that the Appellant’s new information
and supporting documentation concerning an independent investigator’s finding
that the allegation of perjury against Cst. X’s fiancé had been substantiated,
and that there was just cause to initiate an investigation into Cst. X’s
conduct, is information that meets the criteria of fresh evidence on appeal.
This information was not available at the time of the hearing and it could have
affected the Board’s decision since credibility was a key issue.
I also agree with the ERC that it
is reasonable to expect that if the Board had found that Cst. X had lied under
oath when she first met her fiancé, this could have changed the Board’s finding
that Cst, X had been forthright in her testimony. For these reasons, I will
consider this additional information in reaching my decision.
[37]
The
Board, the ERC and the Commissioner understood the credibility of Cst. Elhatton
to be central to the case. The Commissioner, for his part, adopted the Board’s
decision with respect to Allegation 4 (Car Wash Incident), and also saw her
credibility as the lynch-pin on which the case turned:
The Board accepted Cst. X’s
version of this incident. It found her evidence to be clear and reasonable and
although her “memory has faded on some details ... she withstood the
scrutiny of cross examination and did not falter on crucial points.”
[38]
Cst.
Elhatton’s testimony was also central to the disposition of the Allegation 5
(Gun Incident). The Commissioner, in his decision, noted:
Adjudication Board Decision on the Merits of
Allegation #5
The Board accepted Cst. X’s
version of this incident. More specifically, the Board stated the following:
[…] Considering the Board has
found Constable [X] credible on all other issues there is no reason to
disbelieve her now and we find her evidence on these allegations remains
credible.
[39]
And,
to the same effect, in respect of Allegation 6 (Vacation Incident):
The Board accepted Cst. X’s
version of the incident and concluded that the allegation was established.
Role of the
Commissioner
[40]
As
noted, the Commissioner is sitting on appeal from a decision of the Board under
section 45.12 of the Act. Prior to deciding the appeal, the
Commissioner must refer the case to the ERC. The Commissioner is not bound by
the ERC recommendation, but where he disagrees, he must give reasons:
subsection 45.16(6) of the Act. This then, raises the question as to
the Commissioner’s role in relation to findings of fact and evidence considered
in the first instance.
[41]
The
Commissioner indicated that he intended to pay deference to the Board for its
findings of fact. Sitting in appeal, it was his role to determine whether
there were reviewable errors. In respect of the evidence, he noted at
paragraph 174:
I am mindful of the fact that the
Board heard the evidence (except for the additional information submitted by
the parties on appeal) and saw the witnesses, and therefore was in a better
position to assess the credibility of the witnesses. In determining this
appeal, it is not my function to perform a re-weighing of the evidence,
but to review the matter to determine whether the evidence reasonably supports
the Board’s conclusion. [Emphasis added]
[42]
See
also, to the same effect, paragraph 177:
Consequently, as the ERC also
indicated in its Report, I agree that considerable deference should be given to
the Board when reviewing findings on credibility.
[43]
To
conclude on this point, it is clear that the Commissioner, by adopting Dunsmuir
as the controlling standard of review, characterized his role in relation to
the evidence as similar to that of an appellate court.
[44]
The
Commissioner, like any court of appeal, can receive fresh evidence. That
power, however broad, cannot extend so far as to allow the Commissioner to make
findings which he was not situated to make.
[45]
The
Commissioner, sitting as a third level of review, was not in a position to make
a decision as to the credibility of Cst. Elhatton. Admittedly relevant evidence
as to her credibility had not been put to her. It should be noted that this
issue is not simply about the evidence of Cst. Elhatton. Positive findings
about Cst. Elhatton equated into adverse conclusions about the credibility of the
applicant. The two are inter-related.
[46]
There
is a paucity of jurisprudence addressing the question when, if ever,
credibility decisions can be made on the basis of new evidence on appeal.
Counsel advised that none could be found. This is not surprising given the
role of appellate courts and tribunals, which, as a matter of long-standing
jurisprudence, defer to the tribunals of first instance who are better situated
to make findings of fact.
[47]
It
is, in this regard, axiomatic that an appellate court, and similarly, the
Commissioner, should not intervene in credibility findings unless the trier of
fact made a palpable and overriding error or made findings of fact that were
clearly wrong or unsupported by the evidence: F.H. v McDougall, 2008
SCC 53, [2008] 3 S.C.R. 41, at para 73. McDougall is instructive. Rothstein
J. wrote at paragraph 72:
With respect, I cannot interpret
the reasons of the majority of the Court of Appeal other than that it disagreed
with the trial judge’s credibility assessment of F.H. in light of the
inconsistencies in his evidence and the lack of support from the surrounding
circumstances. Assessing credibility is clearly in the bailiwick of the trial
judge and thus heightened deference must be accorded to the trial judge on
matters of credibility. As explained by Bastarache and Abella JJ. in R. v.
Gagnon, 2006 SCC 17 (CanLII), [2006] 1 S.C.R. 621, 2006 SCC 17, at para. 20:
Assessing credibility is not a
science. It is very difficult for a trial judge to articulate with precision
the complex intermingling of impressions that emerge after watching and
listening to witnesses and attempting to reconcile the various versions of
events. That is why this Court decided, most recently in H.L., that in the
absence of a palpable and overriding error by the trial judge, his or her
perceptions should be respected.
Treatment of
Evidence
[48]
I
should add that the outcome would be entirely different were the issue, in
respect of which the new evidence was admitted, immaterial or peripheral to the
key issues for determination; here, however, the Commissioner found the new
evidence both relevant and determined that it could have affected the outcome
of the proceedings as it could have changed the Board’s perception of the
witness’ credibility: see para 125 of the Commissioner’s decision.
[49]
It
is also within the scope of appellate review to sustain the lower court finding
where the new evidence is outweighed when situated in the context of otherwise
uncontested evidence. An appellate court is not required to remit a matter for
a new hearing simply upon the receipt of new evidence. Appeal courts consider,
for example, the impact of evidence improperly excluded, and conversely, the
impact of evidence improperly admitted on the ultimate disposition. Even if the
new evidence contradicts the facts as found, the decision maker sitting in
appeal is still free to sustain the original decision. The new evidence may be
only of tangential relevance, or the new evidence may be outweighed by other
evidence. This function is reinforced by the power granted to the Commissioner
under paragraph 45.16(2)(c) of the Act:
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45.16
[…]
(2) The
Commissioner may dispose of an appeal in respect of a finding referred to in
paragraph 45.14(1)(a) by
[…]
(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.
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45.16
[…]
(2) Le
commissaire, lorsqu’il est saisi d’un appel interjeté contre la conclusion
visée à l’alinéa 45.14 (1)a), peut :
[…]
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.
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[50]
There
is, however, an inherent limitation on the scope of this power where
credibility is in issue. It is not surprising therefore that neither counsel
could identify any case where an appellate tribunal, having received new
evidence that went to the credibility of the principle witness, made its own
determination as to credibility. This is in fact what transpired here, as the
Commissioner concluded that his assessment of the credibility of the
witness did not change. This was, in my view, an error. The Commissioner was
in no position to make a finding of credibility. Indeed, he expressly defined
his role as that not being his function.
[51]
The
second difficulty with the decision is that it fails to meet the Dunsmuir
criteria. There is no cogent line of reasoning between the conclusion that “…
it [the evidence as to perjury on cross-examination] could have affected the
Board’s decision since credibility was a key issue” and the conclusion
that the fresh evidence “… did not cause [him] to reach a different finding
than the Board on the issue of credibility.” The Commissioner continued:
My review of this fresh evidence
did not cause me to reach a different finding than the Board on the issue of
credibility. Based on the results of the investigation conducted following the
Appellant’s perjury complaint against Cst. X, I am not satisfied that this
would have changed the Board’s conclusions respecting Cst. X’s credibility as
it does not change mine. Consequently, I do not agree with the recommendation
of the ERC, and will not order a new hearing in respect of the three
allegations contained in the second Notice of Hearing (i.e. car wash, gun, and
vacation incidents).
[52]
Fresh
evidence was received as it was relevant to the credibility of the principle
witness and could have affected the disposition of the case.
[53]
This
places an onus on the decision maker to establish that the Board’s assessment
of the facts and, in particular, the credibility of Cst. Elhatton would have
been the same had it heard the evidence and had the witness been cross-examined.
This would require, in respect of each of the allegations, that the events
occurred, and in the manner found, objective evidence, independent from Cst.
Elhatton’s testimony that sustained the allegation on a balance of probabilities.
The Commissioner did not, however, reach his decision on this basis.
Application to
Particular Allegations
[54]
Allegation
1 (Mitten Incident) and Allegation 2 (Office Incident) were not appealed. With
respect to Allegation 3 (Disobeying a Lawful Order), the Commissioner did not
sustain this allegation and allowed the appeal. In consequence, this judicial
review concerns only three of the six allegations.
[55]
In
relation to Allegation 4 (Car Wash Incident): This allegation is based on a
single event, on an unspecified date between February 1, 1993 and July 31,
1996, wherein the applicant struck Cst. Elhatton’s upper left leg with a
clenched fist while they were entering into a car wash. The evidence of the
applicant before the Board was:
Q. Speaking of other issues with
your wife, you did receive a second notice of discipline in regard of issues
that occurred in Saskatchewan. The first allegation is that on the occasion
between February 1 1993 and July 31 1996 at or near Saskatoon you struck your
wife, Constable [X], on the leg with a closed fist. What can you tell the Board
about that particular incident?
A. There was something about a
carwash. We have gone through car washes before together in that Buick LeSabre
and I’ve never struck [Cat. X]. I don’t strike [Cst, X], have not, will not,
and never will.
Q. So you have no recollection of
any Incident that - -
A. I did not strike [Cst. X] in
any way, shape or form. There’s no way she can misconstrue it as me punching
her because I didn’t. The way the Buick is anyway, she’s not even close to me.
She’s in the front passenger seat and there’s a divider that goes up and down
and I always have my right hand on it, but I don’t strike her.
Q. You don’t recollect an
incident like what was testified on Monday where you went through the car wash
and you almost hit the post or something - -
A. No.
[56]
The
conclusion of the Commissioner in respect of this allegation was:
The Board accepted Cst. X’s
version of this incident. It found her evidence to be clear and reasonable and
although her “memory has faded on some details ... she withstood the
scrutiny of cross examination and did not falter on crucial points.”
[57]
In
relation to Allegation 5 (Gun Incident): The particulars of this allegation
are:
On one occasion between February
1, 1993 and July 31, 1996, at your residence in Milden, in the Province of Saskatchewan, you got into an argument with your wife, Cst. [X]. At the time
of the argument, you had just removed your uniform and gun belt. In the course
of the argument, you removed your service firearm from the holster and your gun
belt, grabbed your wife’s hand and placed it around the firearm. You then
pointed the gun to your head (with your wife’s hand still around the firearm)
and said words such as: “If you hate me so much, just shoot me, shoot me now.”
Your wife told you to stop and put the gun down, which you did.
[58]
The
Board accepted Cst. Elhatton’s version of this incident, stating:
Considering the Board has found
Constable [X] credible on all other issues there is no reason to disbelieve her
now and we find her evidence on these allegations remains credible.
[59]
In
relation to Allegation 6 (Vacation Incident): The particulars of this
allegation are:
On one occasion between May 1,
1998 and September 30, 1998, during a vacation trip to Prince Edward Island
with your wife, Cst. [X], and children, you grabbed your wife by the arm and
pounded on her forearm approximately 4 or 5 times.
[60]
The
applicant’s mother was a witness to this event. The Board found the applicant’s
version unreasonable, that he lacked credibility, his explanation self-serving
and rejected his mother’s evidence as an attempt to protect her son.
[61]
The
ERC summarized the Board’s decision with respect to credibility of the
applicant:
The Board found that all six
allegations had been established. It noted that, due to “conflicting
testimony on critical points about the actions of [the Appellant] as
well as many other related issues” (Decision, p. 17), credibility was a key
issue.
[…]
The Board noted two specific
concerns with the Appellant’s credibility. First, the Board found that the
Appellant showed no remorse for his prior misconduct, and significantly
minimized the facts of it to the point of being misleading. Second, the Board
noted that although the Appellant was convicted of assault for that same prior
misconduct, nonetheless he failed to accept that he had a criminal record for
it (Decision, p. 21).
The Board also noted that four
witnesses (the DC, the potential supervisor, Cst. X and her fiancé) described
the Appellant’s loss of control or anger or rage, and that even the Appellant’s
mother testified that she had to admonish the Appellant for raising his voice.
[62]
Several
observations emerge from this review of the allegations and the evidence on
which they were based.
[63]
First,
Cst. Elhatton was the only witness to the allegations at issue (4, 5 and 6) for
this judicial review.
[64]
Second,
because the evidence of Cst. Elhatton was accepted in respect of Allegation 1 (Mitten
Incident), the Board concluded she was probably truthful in respect of the
later incidents. There was thus an initial finding on credibility which
cascaded through the later allegations. This reasoning is central to the
Board’s analysis. In R. v M.G., 1994 CanLII 8733, the Ontario Court of
Appeal cited with approval the following cautionary words of the British
Columbia Court of Appeal in Faryna v Chorny, [1952] 2 DLR 354 on the perils
inherent in making credibility findings in these circumstances:
The credibility of interested
witnesses, particularly in cases of conflict of evidence, cannot be gauged
solely by the test of whether the personal demeanour of the particular witness
carried conviction of the truth. The test must reasonably subject his story to
an examination of its consistency with the probabilities that surround the
currently existing conditions. In short, the real test of the truth of the
story of a witness in such a case must be its harmony with the preponderance of
the probabilities which a practical and informed person would readily recognize
as reasonable in that place and in those conditions. […] Again a witness may
testify what he sincerely believes to be true, but he may be quite honestly
mistaken. For a trial Judge to say "I believe him because I judge him to
be telling the truth", is to come to a conclusion on consideration of only
half the problem. In truth it may easily be self-direction of a dangerous kind.
[65]
Third,
the evidence was given in the context of what was obviously a deteriorating
marriage, which necessitates a certain caution or scepticism in assessing the
evidence of each spouse.
[66]
In
sum, Allegations 1 (Mitten Incident) and 2 (Office Incident) were not
appealed. The Commissioner allowed the appeal on Allegation 3 (Disobeying a
Lawful Order). Allegation 4 (Car Wash Incident) and Allegation 5 (Gun Incident)
and Allegation 6 (Vacation Incident) were sustained, but only on the sole evidence
of Cst. Elhatton.
[67]
The
net effect of this is that Allegations 4, 5 and 6 were sustained on the testimony
of a single witness; the applicant’s ex-spouse. Her testimony was essential to
the findings. In the circumstances of conflicting testimony between estranged
spouses, in the absence of independent corroborative evidence, it was
unreasonable to conclude that Cst. Elhatton’s credibility would be unaffected
by the new evidence. Cst. Elhatton was not cross-examined on the alleged
perjury. There is no basis upon which the conclusion that her credibility
would be unaffected could be reasonably predicated, and to do so amounted to
unsubstantiated speculation.
[68]
This
rendered the decision unreasonable according to the standard of Dunsmuir.
There is no clear, intelligible line of reasoning which supports the conclusion
that Cst. Elhatton’s credibility would not be affected by cross-examination and
that this would not have a material impact on the assessment of the merits of Allegations
4, 5 and 6.
[69]
The
decision cannot be deemed reasonable by reference to the credibility findings
in respect of Allegation 1 (Mitten Incident). The ERC summarized the evidence
in respect this allegation:
The Board found the testimony of
Cst. X and her fiancé to be credible because they confirmed each other’s
testimony harmoniously and without hesitation, and because Cst. P. corroborated
their evidence by testifying that they had related the incident to others
shortly after it happened. In addition, the Board found that the fiancé’s
credibility was enhanced because he had apologized immediately when he
previously played a prank on Cst. P’s husband.
[70]
This
is, in my view, a precarious foundation from which it can be extrapolated that
Cst. Elhatton’s credibility would have been unaffected. Given the shaky
platform on which the determination of credibility rests, the decision of the
Commissioner that the critical witness’ credibility would be unaffected is, all
the more, unsustainable.
[71]
Before
concluding, it should be noted that the question whether Cst. Elhatton in fact
gave perjured testimony remains unproven. The applicant was denied a chance to
establish that point. The fact that no criminal charges were laid is not
determinative. The dual prosecutorial test of a reasonable prospect of
conviction and it being in the public interest to prosecute have no bearing on
whether the credibility of Cst. Elhatton, when confronted with the contradictory
evidence, remained intact.
[72]
Secondly,
the Commissioner received as fresh evidence a “joint affidavit”, signed by Cst.
Elhatton and her fiancé. Joint affidavits are unknown to our legal system. There
are many good reasons for this; they inherently reflect a collusion between two
separate and distinct witnesses and interfere with the truth-seeking function
of cross-examination. In respect of this particular affidavit, the affiant
deposes that it was based on personal knowledge when it is manifestly not;
rather it is replete with egregious hearsay.
[73]
The
evidence in the joint affidavit was relied on to explain the outcome of the
perjury investigation, and to support the conclusion that the credibility of
Cst. Elhatton would be unaffected. While the Commissioner is not bound by
strict rules of evidence, reliance on the joint affidavit to conclude that her
credibility would be unaffected falls short of the Dunsmuir standard of
cogency. It does not follow that because no charges were laid her credibility
in respect of her testimony before the Board would be unaffected.
[74]
The
Commissioner, may, in the exercise of the powers available to him under
subsection 45.16(2) and paragraph 45.16(3)(b) of the Act, remit Allegations 4, 5 and 6 to a newly
constituted Board. The Commissioner may also reconsider and vary his decision
in respect of sanctions on the basis that Allegations 3, 4, 5 and 6 have not
been established.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is granted.
The Commissioner’s decision is set aside and the matter remitted to him for
reconsideration in accordance with these reasons.
"Donald J.
Rennie"
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