Date:
20070926
Docket:
A-450-06
Citation:
2007 FCA 305
CORAM: DESJARDINS
J.A.
DÉCARY
J.A.
RYER
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Appellant
and
CONSTABLE H.S. GILL,
Regimental
no. 40635
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1]
This
is an appeal from a decision of O’Keefe J. (2006 FC 1106) allowing an
application for judicial review of a decision of the Commissioner of the Royal
Canadian Mounted Police (the Commissioner). In his decision, the
Commissioner ordered that the respondent be dismissed from the RCMP.
[2]
The
facts have been carefully set out by O’Keefe J. and I need not repeat them
here.
[3]
The
Royal Canadian Mounted Police Act (R.S.C. 1985, c. R-10) (the Act)
establishes in much detail a mechanism whereby the conduct of a member of the
RCMP is assessed in relation to an alleged contravention of the Code of Conduct
set out in the RCMP Regulations (1988, SOR/88-361).
[4]
A
hearing is to take place before a three-member panel (the Adjudication Board)
(ss. 43(2)). The member alleged to have contravened the Code of Conduct
receives a notice in writing of the hearing together with, inter alia, a
copy of any written or documentary evidence that is intended to be produced at
the hearing, a copy of any statement obtained from a forthcoming witness and also
a list of exhibits (ss. 43(4)). The notice of hearing shall contain “a separate
statement of each alleged contravention” and “a statement of the particulars of
the act or omission constituting each alleged contravention” (ss. 43(5)(a)
and (b)). A statement of particulars “shall contain sufficient details,
including, where practicable, the place and date of each contravention . . . to
enable the member . . . to determine each . . . contravention so that the
member may prepare a defence and direct it to the occasion and events indicated
in the notice” (ss. 43(6)). Subsection 45.11(1) allows an amendment to be made
to correct “a technical defect in the notice of the hearing under subsection
43(4) that does not affect the substance of the notice”. No amendment is
allowed with respect to the requirements of subsection 43(5) and 43(6).
[5]
The
decision of the Adjudication Board is recorded in writing and shall include a
statement of the findings on questions of fact, reasons for decisions and a
statement of the sanctions (ss. 45.11(2)).
[6]
The
decision of the Adjudication Board may be appealed to the Commissioner (ss. 45.14(1)),
but before the Commissioner considers an appeal he shall refer the case to the
RCMP External Review Committee (the Review Committee) established pursuant to
section 25 of the Act and comprised of persons who are not members of the RCMP
(ss. 45.15(1)).
[7]
The
Review Committee is provided with the record of the hearing (ss. 45.15(4)). It
may decide to institute a hearing (ss. 34(4) and (45(5)) and on completion of a
hearing, it prepares a report in writing setting out such findings and recommendations
as it sees fit (ss. 35(13) and 45(5)). The report is sent to the other parties
and to the Commissioner.
[8]
The
Commissioner then considers the appeal. He does so on the basis of the record
before the Adjudication Board, the statement of appeal and any written
submissions made to him, and “he shall take into consideration the findings or
recommendations set out in the report, if any”, of the Review Committee (ss. 45.16(1)).
[9]
The
Commissioner renders a decision in writing, including reasons for the decision
(ss. 45.16(5)). However, “the Commissioner is not bound to act on any findings
or recommendations set out in a report” prepared by the Review Committee, but
if he “does not so act, [he] shall include in the decision on the appeal the
reasons for not so acting”(ss. 45.16(6)).
[10]
For
all practical purposes, therefore, the appeal before the Commissioner is with
respect essentially to the decision and record of the Adjudication Board. The
Commissioner is not bound by the report of the Review Committee, but if he does
not agree with it, he must say why in his reasons for decision.
[11]
For
the purpose of this appeal, the Court is solely concerned with three of the
allegations made against the respondent, i.e. allegations nos. 2, 3 and
4, which read as follow:
Allegation #2:
That on or about March 25, 2000,
at or near the city of Pitt Meadows, in the Province of British Columbia, you
conducted yourself in a disgraceful manner that brings discredit on the force,
contrary to section 39(1) of the Royal Canadian Mounted Police Regulations,
1988.
FURTHER
TAKE NOTICE THAT the particulars of the act or omission constituting, singularly
or collectively, the said alleged contravention of the Code of Conduct
are as follows:
Particulars of Allegation #2
1. At all material times, Cst. GILL was a member of
the Royal Canadian Mounted Police (“RCMP”), posted in "E" Division, in
the Province
of British Columbia.
2. On or about March 25, 2000, while on duty in
Pitt Meadows, B.C., following the arrest of Ryan Sherbuck, Cst. GILL was
discourteous, disrespectful and/or unprofessional towards him, including making
unnecessary remarks to taunt Mr. Sherbuck or to cause him to feel threatened.
Allegation
#3:
That on or
about May 4, 2000, at or near the city of Pitt Meadows, in the Province of British
Columbia, you conducted yourself in a disgraceful manner that brings discredit on
the Force, contrary to section 39(1) of the Royal Canadian Mounted
Police Regulations, 1988.
FURTHER TAKE
NOTICE THAT the particulars of the act or omission constituting, singularly or
collectively, the said alleged contravention of the Code of Conduct are as
follows:
Particulars of Allegation #3
1. At all material times, Cst. GILL was a member of
the Royal Canadian Mounted Police ("RCMP"), posted in "E"
Division, in the Province of British
Columbia.
2. On or about May 4, 2000, Cst. GILL, during the course of a
bar check of Rooster’s Pub in Pitt Meadows, B.C., Cst. GILL arrested Jeremy Ferraro
without reasonable grounds for doing so, thereby exceeding his authority.
3. In effecting the arrest, Cst. GILL used force excessive in
the circumstances.
Allegation #4
That on or
about May 21, 2000, at or near the city of Maple Ridge, in the Province of British
Columbia, you conducted yourself in a disgraceful manner that brings discredit on
the Force, contrary t o section 39(1) of the Royal Canadian Mounted Police Regulations,
1988.
FURTHER TAKE
NOTICE THAT the particulars of the act or omission constituting, singularly or
collectively, the said alleged contravention of the Code of Conduct are
as follows:
Particulars
of Allegation #4
1. At all materia1 times, Cst: GILL was a member of
the Royal Canadian Mounted Police ("RCMP"), posted in
"E" Division, in the Province of British Columbia.
2. On or about May 21, 2000, Cst. GILL effected an
arrest upon Randy Strange.
3. After having Mr. Strange in his custody, restrained by
handcuffs and secured in the rear of his police vehicle, Cst. GILL assaulted
Mr. Strange, including by punching him in the face.
[12]
With
respect to allegations 2 and 4, the Adjudication Board found that they were
established and warranted, in the case of allegation no. 2, the forfeiture of
pay for ten days and a reprimand and, in the case of allegation no. 4, a
direction to resign from the Force within fourteen days, failing which he would
be dismissed from the Force. (These sanctions are both contemplated by ss. 45.12(3)
of the Act). The Review Committee was of the view that the acts of misconduct
found by the Adjudication Board were outside the ambit of the particulars
contained in the notice of hearing; allegations 2 and 4, therefore, had not
been established. The Commissioner decided that the statement of particulars
met the requirements of the Act and he endorsed the sanctions imposed by the
Adjudication Board.
[13]
With
respect to allegation 3, the Adjudication Board found that the two components
of the allegation, namely, arrest without reasonable grounds and excessive use
of force, were established; a sanction of dismissal from the Force was imposed.
The Review Committee found that even though only one component was established,
i.e. arrest without reasonable grounds, “the more critical issue was
whether the appellant had reasonable grounds to make the arrest” and it ended
up finding that allegation no. 3 was established (A.B. vol. 2, p. 646). The
Review Committee then went on to examine the sanction of dismissal imposed by
the Adjudication Board in light of its own finding that allegations nos. 2 and
4 had not been established, and it found it to be excessive. It would have
imposed, instead, a forfeiture of pay for ten days and a reprimand. The
Commissioner, while agreeing with the Review Committee that allegation 3 was
established, decided, in view of Mr. Gill’s conduct “which shows a pattern of
anger and violence that is simply unacceptable” (A.B. vol. 2, p. 669) that dismissal
from the Force was a proper sanction.
[14]
In
the Federal Court, O’Keefe J. was of the view, at para. 57, that “the issue of
whether the particulars contained sufficient details so as to comply with
subsection 43(6) of the RCMP Act is a question of mixed fact and law”,
attracting a reasonableness simpliciter standard of review. He was also
of the view, at para. 58, that findings of disgraceful conduct and findings on
the sanctions to be imposed are primarily fact-driven and discretionary
determinations attracting the standard of patent unreasonableness. I agree, and
so did counsel at the hearing.
[15]
The
Federal Court Judge having applied the proper standards, the standard which
this Court is in turn to apply to the impugned decision is that of “palpable
and overriding error” (see Shneidman v. Canada (Attorney
General),
2007 FCA 192 at para. 17, per Sexton J.A. There is no suggestion here that the
Judge made an extricable error of law in reviewing the sufficiency of the
particulars.
[16]
I
shall deal, first, with allegation no. 3. The Judge’s role was to determine
whether the findings of the Commissioner were patently unreasonable. Despite
the use of words that might leave the impression that the Judge proceeded,
rather, to a re-weighing of the evidence, I am satisfied that he applied the
proper test. His conclusion, in effect, is that there was simply no evidence
before the Adjudication Board that could support the findings of the Commissioner.
The Judge made no palpable or overriding error in reaching that conclusion.
[17]
Turning
now to allegations 2 and 4, it is important to note at the outset that the
requirements of the Act with respect to the contents of the notice of hearing
are particularly onerous. In addition to the “where practicable, place and
date” of each contravention, the member should be put in a position to “direct
(his) defence to the occasion and events indicated in the notice” (ss. 43(6)).
The fact that, under subsection 45.11(1), amendments are only allowed with
respect to “technical defects” (i.e. related to the requirements of
subsection 43(4)) that do not “affect the substance of the notice”),
illustrates the extent of the care with which the RCMP is expected to draft the
terms of the particulars that are alleged.
[18]
This
is not to say that the particulars should be read microscopically or in an
unduly narrow manner. They need not be drafted in minute details or in a manner
that meets all the standards imposed by the Courts with respect to criminal
proceedings. The member is served, after all, with a copy of the evidence. The
terms used must attempt to describe as accurately as practicable the substance
of the allegation. Where a statement of particulars sets out in deliberate
terms the boundaries of the allegation insofar as place, date, occasion or
events are concerned, the member should expect the Adjudication Board and,
eventually, the Commissioner, not to base its ultimate decision on findings
that go beyond these boundaries. In the end, the sufficiency of the notice will
be assessed according to the circumstances of a given case.
[19]
In
the case at bar, the RCMP chose to restrict the occasion and the events of the
contravention in a way that gave the Adjudication Board little room to
manoeuvre. A comparison of the terms used in allegations no. 2, 3 and 4 is
revealing. Allegation no. 2 refers to misconduct occurring “following the
event”; allegation no. 3 refers to an arrest without reasonable grounds “during
the course of a bar check” and to the use of “force excessive in the
circumstances”; allegation no. 4 refers to an assault occurring “after having
Mr. Strange in his custody, restrained by handcuffs and secured in the rear of
(the) police vehicle”.
[20]
It
so happens that with respect to allegation no. 2, the Adjudication Board found
the respondent guilty of misconduct prior to the event and of excessive
use of force “in the event”. The latter misconduct was not set out in
the particulars of allegation no. 2, but is distinctive enough to have been set
out as a specific ground in allegation no. 3.
[21]
The
same may be said with respect to allegation no. 4, where the particulars were
minutely specified and where the Adjudication Board, despite having accepted
the respondent’s version of events, nevertheless, went on to find him guilty of
misconduct not alleged in the particulars.
[22]
The
Review Committee was of the view that the Adjudication Board had “committed an
error in law by, in effect, substituting its own allegations of misconduct for
the allegations that had been presented by the [R.C.M.P.] and which it had
rejected” (A.B. col. 2, p. 643).
[23]
The
Commissioner decided not to act on the Review Committee report – which it is
his right to do provided he explains his reasons for doing so – and the Federal
Court Judge was ultimately of the view that the reasons given by the
Commissioner did not address the concerns of the Review Committee.
[24]
The
Review Committee was saying, essentially, that the Adjudication Board could not
on the one hand find that the particulars as drafted had not been established
and on the other hand find the member guilty with respect to particulars which
were not set out in the allegations.
[25]
The
Commissioner in his reasons skirted that issue, which is a fundamental one. He
concluded in a very general way that “the statements of the particulars in the
present case met the requirements of the Act as [they] contained the place and
date of each allegation. Furthermore, [they were] specific enough to enable
[the member] to prepare a proper defence” (A.B. vol. 2, p. 668). He focused on
the “conduct” of the member and not on the particulars of that conduct, which
is precisely where the problem as identified by the Review Committee laid.
[26]
In
the circumstances, the Judge made no palpable and overriding error in
concluding that the decision of the Commissioner did not meet the
reasonableness simpliciter standard.
[27]
I
would therefore dismiss with costs the appeal in respect of allegations nos. 2,
3 and 4.
[28]
However,
as noted by counsel for the appellant and agreed to by counsel for the respondent,
the decision of the Commissioner with respect to allegation no. 1 – which was
not contested by the respondent – is maintained, as is the sanction imposed
with respect to that allegation – i.e. a ten days’ forfeiture of pay,
together with a reprimand. This oversight must be corrected.
[29]
In
the end, the appeal will be allowed, with costs to the respondent, for the sole
purpose of substituting the following judgment to that of the Judge:
The
application for judicial review is allowed in part, the decision of the
Commissioner dated May 27, 2004 is set aside with respect to allegations nos.
2, 3 and 4 and the matter is referred back to the Commissioner solely for the
purpose of imposing the sanction imposed with respect to allegation no. 1, i.e.
a ten days’ forfeiture
of pay, together with a reprimand.
Costs to the applicant.
“Robert Décary”
“I
concur.
Alice Desjardins J.A.”
“I
concur.
C. Michael Ryer
J.A.”
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