Docket:
T-394-13
Citation:
2014 FC 446
Ottawa, Ontario, May 9, 2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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NUNO CAMARA
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Applicant
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and
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HER MAJESTY THE QUEEN,
IN RIGHT OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
Nuno Camara seeks judicial review of a decision
of the Acting Commissioner of the Royal Canadian Mounted Police (RCMP). The
decision in question denied Mr. Camara’s Level II grievance with
respect to his suspension without pay and benefits pending the outcome of
disciplinary proceedings taken against him by his employer.
[2]
Mr. Camara asserts that the decision of the
Acting Commissioner should be quashed as a result of the length of time that it
took to order the stoppage of his pay and benefits and the inordinate delays in
processing his grievance. Mr. Camara further argues that the reasons
offered by the Acting Commissioner for dismissing his grievance were
insufficient and that, in any event, the decision was unreasonable.
[3]
While the delays in this case are indeed
unfortunate, I am not persuaded that they justify the setting aside of the Acting
Commissioner’s decision. I am, moreover, satisfied that the reasons provided by
the Acting Commissioner for his decision were sufficient, and that the decision
itself was reasonable. Consequently, Mr. Camara’s application for judicial
review will be dismissed.
I.
Background
[4]
Mr. Camara had been a member of the RCMP
for over 18 years at the time of the events in question. It appears that at
some point in his career, concerns had arisen with respect to Mr. Camara’s
honesty. As a result, the Winnipeg Major Crimes Unit of the RCMP organized mock
scenarios to test his integrity while acting in the scope of his duties.
[5]
Only one of these integrity tests is at issue in
this proceeding. On November 23, 2005, Mr. Camara was asked to participate
in what he was told was a search of a vehicle, which was to be carried out
under the ostensible authority of a search warrant. Mr. Camara was left
alone to conduct the search, in the course of which he removed a bag from the
vehicle which contained $575 in cash and a compact disk, amongst other things.
Before turning in the bag, Mr. Camara took the CD and five $20 bills from
the bag.
[6]
Mr. Camara spent some of the money later that
day on gas for his vehicle and a restaurant meal. During an interview with
investigators the next day, he admitted to taking the money, although he
claimed that it had been his intention to pay the money back. The two remaining
$20 bills were subsequently recovered from his home, along with the CD.
[7]
On November 24, 2005, Mr. Camara was
arrested, and he was subsequently charged with theft under $5,000 and breach of
trust. Mr. Camara was also suspended from duty, with pay.
[8]
On December 30, 2005, Mr. Camara was served
with a Notice of Intent to Recommend Stoppage of Pay and Allowances. He
provided written submissions with respect to this issue on January 23, 2006,
and a further set of submissions were submitted by Mr. Camara on
February 16, 2006.
[9]
On April 13, 2006, the RCMP’s Chief Human
Resources Officer ordered the stoppage of Mr. Camara’s pay and allowances
on the basis that his conduct had been “outrageous”
and had jeopardized the integrity of the RCMP (the SPAO order). The SPAO order
was served on Mr. Camara five days later.
[10]
Mr. Camara grieved the SPAO order on May
18, 2006. His grievance was denied at the first level of the grievance process
on May 22, 2008, some two years later.
[11]
On August 29, 2008, Mr. Camara pled guilty
in Manitoba Provincial Court to one count of theft under $5,000, for which he
was fined $1,000. The breach of trust charge was withdrawn by the Crown. Mr. Camara
resigned from the RCMP on September 23, 2008, after having been suspended
without pay for some 29 months.
[12]
In the meantime, on June 29, 2008, Mr. Camara
brought a Level II grievance with respect to the SPAO order. The grievance was then
referred to the External Review Committee of the RCMP (ERC) for review. The ERC
is an independent body that reviews labour matters within the RCMP, pursuant to
subsection 33(1) of the Royal Canadian Mounted Police Act, RSC, 1985, c
R-10 (“RCMP Act”).
[13]
For reasons that have not been explained, it
took the ERC some four years to deal with Mr. Camara’s grievance, with it
finally issuing its recommendations on June 29, 2012.
[14]
The ERC concluded that the SPAO order was not
justified as it did “not meet the applicable policy
criteria”. It further recommended that the Commissioner of the RCMP
allow Mr. Camara’s grievance and reinstate his pay and allowances up to
the date of his resignation. Finally, the ERC recommended that systemic steps
be taken with respect to the SPAO process.
[15]
Mr. Camara’s grievance was then referred to
the second level of the grievance process for determination. An exchange of
written submissions followed, and on January 15, 2013, the Acting Commissioner
rendered his decision.
[16]
The Acting Commissioner did not accept the ERC’s
recommendations. In reviewing Mr. Camara’s grievance on a de novo
basis, he concluded that there had been no undue delay in Mr. Camara’s
case and that the issuance of the SPAO Order was justified. As a consequence, Mr. Camara’s
Level II grievance was dismissed.
II.
Issues
[17]
Mr. Camara seeks to challenge the decision
of the Acting Commissioner, asserting that the imposition of the SPAO Order was
not carried out in a timely manner. He further asserts that he was treated
unfairly as a result of the lengthy delays in the grievance process and the
inadequacies of the Acting Commissioner’s reasons. Finally, Mr. Camara
asserts that the Acting Commissioner’s decision was substantively unreasonable.
III.
The Timeliness of the Imposition of the SPAO
Order
[18]
To the extent that Mr. Camara has
characterized the delay in imposing the SPAO Order as an issue of fairness, I
am prepared to consider the Acting Commissioner’s decision on the standard of
correctness, although it is at least arguable that the Acting Commissioner’s
findings on this question are in fact reviewable against the standard of
reasonableness: see, for example, Information and Privacy Commission v.
Alberta Teachers’ Association, 2011 SCC 61 at paras. 30-32, [2011]
S.C.J. No. 61.
[19]
Mr. Camara’s argument before the Acting
Commissioner was that there had been an inordinate delay between the date of an
earlier integrity test in June of 2005 and the imposition of the SPAO Order on April
13, 2006. Mr. Camara is no longer pursuing his claim that his suspension
had been based, in part, on the results of this earlier integrity test, and I
understand him to now accept that his suspension was based entirely on the
events of November 23, 2005.
[20]
The Acting Commissioner found that the “last piece of investigational information” with respect
to Mr. Camara’s conduct on November 23, 2005 was received on December 19,
2005. Mr. Camara was served with a Notice of Intent to Recommend Stoppage
of Pay and Allowances on December 30, 2005.
[21]
Written submissions were exchanged by the
parties with respect to the suspension of Mr. Camara’s pay and benefits in
January and February of 2006, and it appears that Mr. Camara had requested
at least two extensions of time in which to provide his written submissions:
see Applicant’s Record at p. 461-A.
[22]
The RCMP’s Chief Human Resources Officer issued
the SPAO Order on April 13, 2006. The Acting Commissioner subsequently
concluded that there were “no inordinate delays” in
the process, and that the SPAO order was imposed in a timely manner.
[23]
Mr. Camara has not persuaded me that there
was any unfairness in this regard, nor has he explained how he was prejudiced
by any delay that may have occurred in relation to the imposition of the SPAO order.
Indeed, he acknowledged at the hearing that he actually benefited form the
delay by receiving his pay and benefits from the date of his suspension up
until April 13, 2006.
[24]
Apart from the question of fairness, Mr. Camara
has also argued that the delay in imposing the SPAO order suggests that the order
was not necessary to protect the integrity of the RCMP. This really goes to the
reasonableness of the Acting Commissioner’s decision to uphold the imposition
of the SPAO order, which will be addressed further on in these reasons.
IV.
The Duration of the SPAO Order
[25]
Mr. Camara acknowledges that the RCMP has
the power to suspend members without pay in appropriate cases. He further
concedes that the SPAO process is administrative, rather than punitive, and is
designed to protect the integrity of the RCMP.
[26]
However, Mr. Camara submits that he was
suspended without pay and allowances for such an unreasonable length of time
that the SPAO order must be viewed as a punitive one, which was tantamount to a
constructive dismissal.
[27]
Mr. Camara cites the decision of the
Supreme Court in Cabiakman v. Industrial Alliance Life Insurance Co.,
2004 SCC 55 at paras. 60 and 61, [2004] 3 S.C.R. 195, in support of his claim
of constructive dismissal. Indeed, Mr. Camara has commenced an action for
wrongful dismissal in the Manitoba Court of Queen’s Bench which is evidently
being held in abeyance pending the outcome of these proceedings.
[28]
In support of his contention that he has been subject
to punitive sanctions through the imposition of the SPAO order, Mr. Camara
points to the two years that it took for his case to be decided at the first
level of the grievance process, the four years that the case was before the
ERC, and the seven months that it took for the Acting Commissioner to render
his decision at the second level of the grievance process.
[29]
The SPAO order was in place pending the
resolution of the disciplinary proceedings against Mr. Camara. His
disciplinary hearing was originally scheduled for December 3, 2007 - less than
eight months after the imposition of the SPAO order. The hearing was adjourned,
although the reasons for the adjournment are not entirely clear from the record
before me. Nor is it clear from the record whether or not Mr. Camara
consented to the adjournment. There is, however, no suggestion that Mr. Camara
took any steps to have the disciplinary hearing expedited.
[30]
Mr. Camara’s disciplinary hearing was
rescheduled for September of 2008. However, in August of 2008, Mr. Camara
pled guilty to the charge of theft under $5,000, and the matter was put over
for a month for sentencing.
[31]
Mr. Camara resigned from the RCMP on
September 23, 2008 – just as his disciplinary hearing was set to begin. It
is common ground that, as of that date, Mr. Camara was no longer entitled
to receive pay and benefits.
[32]
The ERC considered and rejected Mr. Camara’s
claim of undue delay, observing that the duration of the SPAO order was tied to
the duration of the disciplinary proceedings. The ERC found that there was no
evidence of bad faith on the part of the RCMP, nor was there evidence that the
SPAO order had been put in place longer than was necessary.
[33]
The Acting Commissioner also dismissed Mr. Camara’s
claim of undue delay, noting that there was no information in the record with
respect to the delays surrounding the disciplinary hearing. As a consequence,
he concluded that the duration of the SPAO order was reasonable.
[34]
As the party seeking to establish that an
administrative delay was such as to result in a violation of procedural
fairness, Mr. Camara bears the burden of demonstrating the delay was
unacceptable to the point of being so oppressive as to taint the proceedings
and cause serious prejudice: Blencoe v British Columbia (Human Rights Commission),
2000 SCC 44 at para. 121, [2000] 2 S.C.R. 307.
[35]
The question is not merely the length of the
delay. Consideration must also be given to the particular circumstances of the
case, including the degree to which the party alleging delay contributed to the
delay, or waived the delay: Blencoe, at para 122. See also Panula v. Canada (Attorney General) (24 February 2014), Ottawa T-62-12 (FC) at para. 41, 2014
CanLII 13154 (FC).
[36]
The record reveals that at least some of the
delay in this case is attributable to Mr. Camara, who sought and obtained
numerous extensions of time in which to file written submissions at various
stages in the grievance process. While these extensions do not begin to account
for all of the time that passed, Mr. Camara has provided little concrete
evidence to support his claims of procedural unfairness resulting from the
delays in this matter, relying largely on bald assertions of unfairness and
prejudice.
[37]
While I agree that the delays in the grievance
and ERC processes are regrettable, viewing the matter for myself, I have not
been persuaded that they were so oppressive as to taint the proceedings and
cause serious prejudice to Mr. Camara. Nor has Mr. Camara persuaded
me that the Acting Commissioner’s findings in this regard were unreasonable.
V.
The Reasonableness of the Acting Commissioner’s
Decision
[38]
Section D.9 of the RCMP’s Suspension Policy
(Chapter XII.5 of the RCMP Administration Manual) provides that a member
may be suspended without pay “in extreme circumstances
when it would be inappropriate to pay a member”.
[39]
Section D.9.a of the Policy provides that each
case is to be dealt with on its own merits, and that stoppage of pay and
allowances will be considered where a member “is clearly
involved in the commission of an offence that contravenes an Act of Parliament
or the Code of Conduct, and is so outrageous as to significantly
affect the proper performance of his/her duties under the RCMP Act ….”
[my emphasis].
[40]
Section D.10 of the Policy provides that “[s]toppage of pay and allowances will not apply to summary
convictions, provincial offences or minor Criminal Code offences”.
[41]
Mr. Camara argues that the Acting
Commissioner’s decision to uphold the SPAO order was unreasonable as his
conduct was the subject of summary conviction proceedings and section D.10 of
the RCMP’s Suspension Policy clearly states that stoppage of pay and
allowances does not apply in the case of summary conviction or minor Criminal
Code offences.
[42]
The Acting Commissioner considered and rejected
this argument, noting that disciplinary proceedings involving Code of
Conduct violations under the RCMP Act are neither indictable nor
summary conviction offences. The Acting Commissioner further noted that, in any
event, theft under $5,000 is a hybrid offence, and no election had been made by
the Crown as to how to proceed at the time that the SPAO order was imposed.
[43]
While accepting that the Level I adjudicator had
erred in his interpretation of the Suspension Policy, the Acting
Commissioner was nevertheless satisfied that the decision to issue the SPAO
order was consistent with the legislation and with RCMP and Treasury Board
policies.
[44]
In my view, the Acting Commissioner’s
interpretation of the RCMP’s Suspension Policy was reasonable. The
allegations against Mr. Camara involved more than just a breach of the
criminal law: they also involved what was at the time an alleged breach of the
RCMP’s Code of Conduct. As a consequence, the matter came within Section
D.9.a of the Suspension Policy, and the question that had to be decided
by the Acting Commissioner was whether Mr. Camara’s purported misconduct
was so outrageous as to significantly affect the proper performance of his
duties under the RCMP Act.
[45]
Mr. Camara notes that the ERC concluded
that his conduct did not constitute an outrageous act, but was rather a minor
criminal offence for which he received a fine. Mr. Camara further submits
that the Acting Commissioner’s decision was unreasonable, as he failed to
adequately explain why he did not accept the findings of the ERC or how his
behaviour was “outrageous” to the point of
justifying a SPAO.
[46]
There is no merit to this submission. A review
of the Acting Commissioner’s decision, particularly paragraphs 129 to 131
thereof, discloses precisely why the Acting Commissioner did not accept the
findings of the ERC and why he was of the view that Mr. Camara’s behaviour
was outrageous.
[47]
The Acting Commissioner found that Mr. Camara
was “clearly involved” in taking the money without
lawful justification. He stated that he “fundamentally disagree[d]”
with the ERC’s finding that this was not an outrageous act, noting that Mr. Camara
“took advantage of a lawful search … to engage in
dishonest acts”.
[48]
The Acting Commissioner further observed that Mr. Camara
“did not ‘just’ steal $100 in cash”. As far as Mr. Camara
was aware, he was stealing evidence that had been obtained in the course of a
lawful court-authorized search carried out in the context of a criminal
investigation. According to the Acting Commissioner, Mr. Camara’s action “tears away at the very fabric of policing”.
[49]
The Acting Commissioner further noted that the
dollar value of the theft was not the issue. Because the money was believed to
be evidence, Mr. Camara could not have simply replaced it the following
day. Mr. Camara conceded at the hearing before me the replacement bills
would not have the same fingerprints or drug residue on them as would have been
on the money originally taken. Indeed, had this been a real criminal
investigation, Mr. Camara’s conduct could well have jeopardized any subsequent
prosecution.
[50]
The Acting Commissioner thus quite reasonably
found that Mr. Camara’s misconduct placed in doubt his “integrity, honesty and moral character”, while
compromising his effectiveness and the integrity of the RCMP. He further noted
that Mr. Camara’s actions also had the potential to compromise the
administration of justice by impacting the outcome of the criminal process of
another individual.
[51]
The Acting Commissioner concluded that Mr. Camara’s
conduct was an “absolute abuse of the position of trust
vested in a police officer”. He further concluded that given his 18
years of experience, Mr. Camara should have been well aware of the
importance of preserving the integrity of evidence. This was a finding that was
amply open to the Acting Commissioner on the record before him.
[52]
The Acting Commissioner was thus satisfied that Mr. Camara’s
case “involved extreme circumstances where it would have
been inappropriate to continue paying” Mr. Camara’s salary.
[53]
The jurisprudence recognizes that the
Commissioner of the RCMP has vast experience in assessing the exigencies of
policing, including what kinds of behaviour in officers’ professional lives may
reflect on the integrity and professionalism of the RCMP: see Elhatton v. Canada (Attorney General), 2013 FC 71 at para. 30, [2013] F.C.J. No. 58. See also Millard
v. Canada (Attorney General), [2000] F.C.J. No. 279 at para. 9, 253 N.R.
187 (FCA).
[54]
As a consequence, the admonitions of the
Supreme Court as to deference owed to administrative decision-makers such as
the Acting Commissioner are particularly apposite: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 48, [2008] 1
S.C.R. 190.
[55]
The Acting Commissioner’s conclusion that Mr. Camara’s
behaviour was “outrageous”, warranting an
administrative suspension of his pay and benefits, was clearly explained, and
was well within the Dunsmuir range of possible, acceptable outcomes which are defensible in light of the
facts and the law. I see no basis for interfering with that decision.
VI.
Conclusion
[56]
For these reasons, Mr. Camara’s application
for judicial review is dismissed. In accordance with the agreement of the
parties, the respondent shall have her costs, fixed in the amount of $500.00,
inclusive of disbursements and tax.
VII.
Style of Cause
[57]
On the consent of the parties, the style of
cause is amended to substitute Her Majesty the Queen, in Right of Canada as the
respondent in this case.
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