Docket:
T-1691-12
Citation: 2014 FC 331
Ottawa, Ontario, April 04,
2014
PRESENT: The Honourable Madam Justice Heneghan
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BETWEEN:
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SHELLEY GORDON
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms. Shelley Gordon (the “Applicant”) seeks
judicial review, pursuant to section 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7 of a decision of the Commission for Public Complaints Against
the RCMP (the “Commission”). In that decision, dated August 6, 2012, Mr. Ian
McPhail, Q.C., Interim Chair (the “Interim Chair”) of the Commission found that
the RCMP’s investigation and disposition of a complaint filed by the Applicant
was reasonable in the circumstances.
[2]
The Attorney General of Canada (the
“Respondent”) is the Respondent on this application, pursuant to subrule 303(2)
of the Federal Courts Rules, SOR/98-106 (the “Rules”).
BACKGROUND
[3]
The Applicant is the wife of Corporal Michael
Kerkowich, a Member of the RCMP. On March 22nd, 2011, she attended a
meeting at the RCMP’s offices in Prince Albert, Saskatchewan concerning a
grievance that her husband had filed against his supervisor. The Applicant’s
husband, three other members of the RCMP and a public service employee were
also present at that meeting.
[4]
The meeting was chaired by Superintendent Dave
Fenson. He asked that the public service employee take notes and record the
meeting with a tape recorder. The Applicant was unaware that the meeting had
been recorded until she found a transcript of the recorded meeting included in
a package of documents her husband received in November 2011 with respect to
his grievance. The Applicant claims that consent for the recording was never
obtained from her or any of the other participants in the meeting. On January
31st, 2012 she filed a complaint with the Commission, alleging that
the Superintendent in charge of the meeting had surreptitiously recorded the
meeting and had used that recording in subsequent proceedings.
[5]
The Applicant also complained that the recording
of the meeting, without her consent, violated section 184 of the Criminal
Code, R.S.C. 1985, c. C-46 (the “Code”). She further claimed the
distribution of the recording and its transcription violated section 193 of the
Code and section 7 of the Personal Information Protection and Electronic
Documents Act, S.C. 2000, c. 5 (“PIPEDA”).
[6]
The Applicant’s complaint was investigated by
Sergeant Robert Lutzko of the RCMP. During the investigation, the Applicant and
the other participants of the meeting were interviewed. The interviews were
recorded and the recordings were transcribed.
[7]
Superintendent Fenson and the public service
administrative assistant said that the participants of the meeting were
informed that the meeting would be recorded. These two individuals said that
the recording device, a digital recorder, was in plain view on the table.
[8]
Sergeant Lutzko interviewed the Applicant and
her husband, a member of the RCMP. The Applicant told Sergeant Lutzko that she
was never told that the meeting would be recorded. Her husband said that there
was no discussion, before or during the meeting, about a recording and further,
that he did not notice a recording device in the room.
[9]
Staff Sergeant Mayrs told Sergeant Lutzko that
he was aware that notes were being made of the meeting and that he did not see
a recording device on the table.
[10]
The other RCMP member, Sergeant Rabut, told
Sergeant Lutzko that he saw the public service administrative assistant and
assumed that she would be taking notes, although he did not see her do so,
since he was taking his own notes. He was not aware that the meeting would be
recorded.
[11]
The Applicant argues that the Interim Chair
unreasonably preferred the evidence of Superintendent Fenson and the public
service employee over the evidence of the other four attendees of the meeting
and that accordingly, the factual findings in the final decision are
unreasonable.
[12]
On April 11th, 2012 Chief
Superintendent Randy Beck sent the Applicant the results of the investigation
and advised that he was unable to support the Applicant’s allegation that the
meeting had been surreptitiously recorded.
[13]
On May 3rd, 2012 the Applicant’s
counsel wrote to the Commission and asked for a review of the results of the
investigation and the findings of Chief Superintendent Beck. Counsel alleged a
number of errors of fact and law in the investigation and in the Chief
Superintendent’s conclusion that he was unable to support the allegation. On
August 16th, 2012, the Interim Chair issued his decision in which he
found that the RCMP’s disposition of the Applicant’s complaint was reasonable
in the circumstances.
[14]
The decision under review was made by the Interim
Chair. The Interim Chair noted at the outset that the review was based on the
Applicant’s complaint and request for review, the public complaint
investigation file, and the RCMP’s final report. He noted that during their
interviews with the investigator, both the Superintendent in charge of the
meeting and the public service employee responsible for recording the meeting
indicated that the Superintendent had informed those present that notes
were being taken and the meeting was being recorded. They both also indicated
that the recorder was kept in plain view at all times during the meeting. The
public service employee noted that, because of her inexperience, she started
the tape recorder late and missed recording the Superintendent’s warning about
notes and the recording of the meeting.
[15]
The other four people who attended the meeting
noted in their interviews that they were unaware that the meeting was being
recorded, although they were aware the public service employee was taking
notes.
[16]
The Interim Chair went on to note that with
respect to the Applicant’s concerns that the recording violated PIPEDA,
that legislation does not apply to the RCMP. With respect to her
submissions about a contravention of the Code, he did not have
jurisdiction to determine whether the actions complained of constituted a
violation of the Code. The Interim Chair noted that its mandate is to determine
whether the RCMP’s disposition of a particular public complaint is reasonable
in the circumstances.
[17]
Nevertheless, the Interim Chair went on to say
that the provisions of the Code cited by the Applicant did not apply to the
complaint at hand. He found that since the Code sections refer to intercepts or
recordings made without consent from the originator or recipient of the
communication, and the audio recording was made with the knowledge of at least
two of the intended recipients of the communication, it did not fall into the
category of prohibited intercepts under the Code.
[18]
The Interim Chair also found that the
Applicant’s concerns about the use of the transcript are best addressed within
the RCMP grievance process. He found that process to be a more appropriate
forum than the public complaints process to address evidentiary issues. As a
result, the Interim Chair was satisfied that the RCMP’s disposition of the
Applicant’s complaint was reasonable in the circumstances.
ISSUES
[19]
The Applicant challenges the decision on several
grounds. The principal grounds are a breach of procedural fairness arising from
reliance upon a deficient investigation and second, unreasonable findings of
fact based upon a selective assessment of the evidence.
[20]
There are two subsidiary issues, that is the
interpretation of certain provisions of the Code by the Interim Chair and the
reasonableness of his conclusion regarding the use of the recorded meeting as evidence
in a grievance process involving the Applicant’s husband.
DISCUSSION
AND DISPOSITION
[21]
A breach of procedural fairness is reviewable on
the standard of correctness; see the decision in Sketchley v. Canada (Attorney General) (F.C.A.), [2006] 3 F.C.R. 392 at paragraph 53. The Interim
Chair’s assessment of the facts is reviewable on the standard of
reasonableness; see the decisions in L’Ecuyer v. Canada (2009), 365
F.T.R. 244 at paragraph 36; Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190 at paragraph 53. The standard of review for the Interim Chair’s
interpretation of the Code is correctness; see the decision in Rogers
Communications Inc. v. Society of Composers, Authors and Music Publishers of
Canada, [2012] 2 S.C.R. 283 at paragraph 14.
[22]
Before addressing the merits of this application
for judicial review, it is useful to briefly outline the RCMP complaints
process.
[23]
The Commission is an independent body
established pursuant to section 45.29 of the Royal Canadian Mounted Police
Act, R.S.C. 1985, c. R-10 (the “Act”). Pursuant to section 45.35 of the
Act, the Commission is responsible for handling complaints from the public
concerning the conduct of any person employed to perform a function under the Act.
[24]
The complaint is first submitted to the Commissioner
of the RCMP and investigated. This process is governed by the rules established
by the Commissioner under section 45.38 of the Act. Pursuant to section 45.4 of
the Act the results of the investigation and any action taken are sent to the
complainant in the form of a report. If the complainant is dissatisfied with
the outcome of the investigation and report, he or she can refer their
complaint to the Commission for review, in accordance with section 45.41.
[25]
Pursuant to section 45.42 of the Act, the Commission
Chairman is to review every complaint referred to the Commission under section
45.41. If after review the Chairman is satisfied with the results of the
investigation, he or she will communicate their findings in a report to the
complainant, the individual complained of and the Minister of Public Safety and
Emergency Preparedness as required by subsection 45.42(2).
[26]
If after review the Commission is not
satisfied with the results of the investigation, pursuant to subsection
45.42(3) it can send a report to the Minister of Public Safety and Emergency
Preparedness with findings and recommendations about the complaint or request
the Commissioner of the RCMP to conduct a further investigation into the
complaint. The Commission can also investigate the complaint further on its own
choice, or institute a hearing to inquire into the complaint.
[27]
The Applicant argues that the investigation of
the complaint was deficient, and since the Interim Chair relied on a deficient
investigation, a breach of procedural fairness resulted.
[28]
In my opinion, there was no breach of procedural
fairness with respect to the decision.
[29]
The decision under review is that of the Interim
Chair, not of the Chief Superintendent who assessed the results of the initial
investigation. The duty of the Commission, according to the Act, is to review
the complaint and its resolution and determine whether it has satisfactorily
been dealt with. See the decision in L’Ecuyer, supra; aff’d by the
Federal Court of Appeal in L’Ecuyer v. Canada (2010), 425 N.R. 360.
[30]
The Interim Chair reviewed the investigation and
the disposition of the complaint to determine whether or not it was disposed of
satisfactorily. The Interim Chair held that it was. In the result, I am
satisfied that there was no breach of the duty of procedural fairness.
[31]
The findings of
fact made by the Interim Chair were reasonable, having regard to the material
before him. These findings are that two people at this meeting were aware that
the meeting was being recorded. At least two people were aware that notes were
being taken. I agree with the Respondent that the Interim Chair did not ignore
or disregard the evidence of the Applicant, her husband and the two other RCMP
officers. The Interim Chair clearly acknowledged the evidence of these
individuals when he reviewed the complaint and made his findings of fact. The
Interim Chair was mandated to weigh the evidence before him. He had the
authority to choose to accept the evidence of Superintendent Fenson and the
public service administrative assistant.
[32]
I am satisfied
that the Interim Chair fairly weighed the evidence of all witnesses and
concluded, on the basis of the evidence, that there was consent for a recording
for the purposes of the Code.
[33]
The Interim Chair’s
crucial finding was that the investigation and disposition of the complaint was
reasonable in the circumstances. The factual assessments made by the Interim
Chair in reaching this conclusion were grounded in the record and were
reasonable.
[34]
The Interim Chair correctly noted that it has no
jurisdiction to decide whether or not there has been a breach of the Code. The
Commission is mandated to review investigations into complaints filed by
members of the public against members of the RCMP. The Commission is not tasked
with considering if criminal charges may be laid, pursuant to the Code.
[35]
Further, in my opinion, the Interim Chair’s
interpretation of the Code in this case is irrelevant to the disposition of
this application for judicial review.
[36]
I disagree with the Applicant’s argument that
the Interim Chair tried to resolve the complaint by offering a remedy that was
unavailable, that is the grievance process. The Interim Chair’s reference to
that process as the proper place to determine evidentiary issues suggests that
he was referring to any objection the Applicant may have to the use of the
recording as evidence in future grievance proceedings. The Interim Chair was of
the view that the grievance process is a more appropriate forum to address that
issue. That conclusion was reasonable.
[37]
In any event, the issue was not determinative of
the Interim Chair’s decision. Any deficiency in that regard does not render the
entire decision unreasonable. The key finding of the decision under review was
that the investigation and disposition of the Applicant’s complaint was
reasonable in the circumstances. Having regard to the record before the Interim
Chair, I am satisfied that the conclusion was reasonable.
[38]
The application
for judicial review is dismissed. In the exercise of my discretion pursuant to
Rule 400 of the Rules, I make no order as to costs.
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