Adriaanse v. Malmo-Levine, docket T-2140-98

Date: 19981127

Docket: T-2140-98

BETWEEN:

     CST. MICHELLE ADRIAANSE, CPL. RICHARD J. ANDERSON,

     CST. W. PAUL BAMBURY, CST. KEVIN A. BRACEWELL,

     CST. SHAUN J. BROZER, SUPT. VINCENT CASEY, CST. RICHARD CHAULK,

     CST. SUSAN R. COWAN, CST. MICHELLE COUILLARD,

     INSP. WILLIAM A DINGWALL, CST. JENNIFER D. DOUGLAS,

     INSP. PERRY EDWARDS, CST. GILLIAN GARNER, SUPT. GERRY GREEN,

     CST. ROBERT M. HODDER, CST. TOM HOWELL, CST. STEVEN T. JAMES,

     CST. LEE JU-HWAN, CST. MICHAEL LIU, INSP. LARRY KILLALY,

     CST. PATRICK LOCKERT, CPL. CHARLES J. MCDONALD,

     CST. EVERETT J. MCLACHLAN, SGT. IAN MACMILLAN,

     CPL. JAMES G. MARSH, SUPT. WAYNE MAY,

     SGT. BUD MERCER, INSP. EARL MOULTON,

     S/SGT. LLOYDE PLANTE, CST. SEAN T. POWELL,

     CST. MITCHELL T. RASCHE, CST. RICHARD G. ROLLINGS,

     CST. MICHAEL J. SEMEINS, S/SGT. FRANK W. SHEDDEN,

     INSP. ALAN R. SPEEVAK, SUPT. TREVOR

     THOMPSETT, CST. KARINA L. WATSON,

     CST. JOAQUIM E.K. WEISS, and

     CPL. CLAUDE WILCOTT,

     Applicants,

     - and -

     DAVID MALMO-LEVINE, JAGGI SINGH,

     ROB WEST, JONATHAN OPPENHEIM, and

     ANNETTE MUTTRAY, ANDREA WESTERGARD-THORPE,

     DENNIS PORTER, MARK BROOKS, JAMIE DOUCETTE, and

     CRAIG JONES, and

     ISABELA ROMERO-VARELA a.k.a. EISABELA VARELA,

     MICHAEL THOMS, JODI MORRIS, and

     STEFFAN RIDDELL, MEGAN HUNTER, DEKE SAMCHOK,

     JILLIAN LYNN-LAWSON, ANDREW PIONTKOVSKY,

     DAVID BREEN, ANDREAS SIEBERT, PAULETTE MARCHETTI,

     GERALD WOOD, STUART SIMPSON, RANDY LOWE, ERIC WYNESS,

     BARRY FAIRES, CHRISTINE SINGH, BILL JOHNSON, DENNIS MCIVOR

     GREG KAUFMAN, CLAIR VEISSIRE, SCOTT TRUSWELL,

     MICHAEL WHEATLEY, MICHAEL BAIN, PAUL BARCLAY, GLENN BARR,

     MICHAEL BURNHAM, SUSAN CONNOR, MICHAEL CROTEAU,

     SABINA ISELI-OTTO, JOHANN GROEBNER, DAVID OLSEN,

     MICHAEL SEARS, DON BEGGS and

     UNIVERSITY OF BRITISH COLUMBIA, DR. MARTHA PIPER and

     BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION and

     CITY OF VANCOUVER and

     ATTORNEY GENERAL FOR CANADA and

     S/SGT. HUGH STEWART and SGT. PETER McLAREN,

     Respondents.

     REASONS FOR ORDER

NADON, J.

[1]      By their motion, the Applicants, 39 officers of the Royal Canadian Mounted Police ("RCMP") seek an order of this Court staying all further proceedings of the RCMP Public Complaints Commission ("PCC") in the matter of complaints made against them in connection with the Asia-Pacific Economic Cooperation ("APEC") meetings held in Vancouver in November of 1997, until this Court has disposed of the application for judicial review which the Applicants commenced on November 16, 1998.

[2]      In order for the Applicants to succeed on their motion, they must meet the test formulated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396, as adopted by the Supreme Court of Canada in RJR - MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 and Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110.

[3]      Thus the Applicants need to satisfy the Court that their judicial review application raises a serious issue, that they will suffer irreparable harm if the stay which they seek is not ordered and finally that the balance of convenience is in their favour.

[4]      The Applicants have commenced judicial review proceedings in respect of a decision made by the PCC "to continue the Hearing notwithstanding a reasonable apprehension that the Chair may have prejudged the issues before the Hearing, and may therefore be biased.". The Applicants seek a writ of prohibition so as to prevent the Commission Panel, appointed pursuant to the Notice of Decision to Institute a Hearing and Assignment of Hearing Members dated February 20, 1998, from continuing with the hearing.

[5]      The matter before the Court arises as follows. In November of 1997, Canada was host to a meeting of eighteen leaders of national governments at the APEC Conference in Vancouver, British Columbia. Between November 23 and November 27, 1997, the leaders met on the campus of the University of British Columbia ("UBC"). The RCMP, who were responsible for security at the conference, deployed several hundred RCMP and Vancouver Police officers for the purpose of providing security for the leaders who were meeting on the campus of UBC. In their attempts to maintain security, members of the RCMP came into contact with people who were protesting against the presence of certain of the leaders on the campus of UBC.

[6]      As a result of what occurred on the campus of UBC, complaints were made against the RCMP. Specifically, allegations were made that persons were arrested and detained improperly, that legitimate demonstrations were improperly curtailed and that excessive force was used.

[7]      On February 20, 1998 the Chair of the PCC¹ issued a Notice of Decision to Institute a Hearing, pursuant to subsections 45.43(1) of the Royal Canadian Mounted Police Act (the "Act"). The mandate of the Hearing is as follows:

i.      the events that took place during, or in connection with, demonstrations during the APEC conference in Vancouver, B.C., between November 23 and 27, 1997 on or near the U.B.C. Campus and subsequently at the U.B.C. and Richmond Detachments of the R.C.M.P.;

ii.      whether the conduct of the R.C.M.P. involved in the events was appropriate to the circumstances;

iii.      whether the conduct of members of the R.C.M.P. involved in the events was consistent with respect for the Fundamental Freedoms guaranteed by section 2 of the Canadian Charter of Rights and Freedoms.

[8]      The Notice of Hearing appointed Mr. Gerald Morin Chair of the Panel. Ms. Vina Starr and Mr. John Wright were appointed as Panel Members.

[9]      The Applicants are members of the RCMP who were involved in the events which are to be investigated by the Panel. The Applicants have been designated by Commission counsel as "Subject Members" of the Hearing. A Subject Member is an officer whose personal conduct will be the subject of scrutiny at the Hearing. Allegations have been made that the Applicants were involved in one or more of the incidents which have given rise to complaints. Allegations have also been made that the Applicants individually and collectively may have misconducted themselves. The Panel is empowered to make findings of fact and make recommendations to the Commissioner of the RCMP which recommendations can include recommendations that disciplinary action be taken against the Applicants. Thus, adverse findings of fact and recommendations may well have a serious impact on the reputation and career of the Applicants.

[10]      The Hearing commenced on October 5, 1998 and it is expected that approximately 120 persons will give evidence. So far, there have been 13 hearing dates during which 5 witnesses have testified. The last witness has not yet completed his testimony. On October 22, 1998, Mr. Ivan Whitehall, Q.C., counsel for the Government of Canada in the Hearing, delivered a letter to Commission counsel which stated, in part,

"I have in the past two days become aware of a statement made by a member of the R.C.M.P. to his superior officer which raises a question of reasonable apprehension of bias on the part of the Chairman of the Panel. The allegation is set out in the enclosed statement.".

[11]      The RCMP member to whom Mr. Whitehall refers in his letter is Constable Russell Black. Constable Black is posted to the RCMP detachment in Prince Albert, Saskatchewan. Constable Black gave a statement to the RCMP on October 20, 1998 and was interviewed by Mr. Whitehall in Vancouver on October 21, 1998. On November 12, 1998, Constable Black signed an affidavit which the Applicants filed in support of their application for judicial review.

[12]      The substance of Constable Black's affidavit is that in the Spring of 1998, while gambling at the Northern Lights Casino in Prince Albert, he overheard a conversation between Gerald Morin, Chair of the Panel, and another man. According to Constable Black, Mr. Morin indicated to the other man that, in his view, the RCMP had used excessive force during the APEC meetings in Vancouver in November of 1997. According to Constable Black, Mr. Morin would have also indicated to the other man that he knew what his decision would be in the circumstances. Finally, according to Constable Black, Mr. Morin would have said that he knew "what the RCMP are gonna be doing in order to avoid the decision.". Constable Black understood this to mean that Mr. Morin believed that the RCMP would lie at the Hearing.

[13]      On October 23, 1998, the Chair of the Panel made it clear that Constable Black's allegations were denied. Mr. Morin's statement is as follows:

"Good morning. It came to the attention of this Panel at approximately 9:00 a.m. Pacific Standard Time yesterday that a member of the R.C.M.P. had made unsworn statements alleging that I, Gerald Morin, chairman of this Panel had prejudged some of the issues to be addressed in the course of this hearing.

As a result, the Panel decided to adjourn yesterday's hearing's proceeding in order to consider its position. The documents containing the unsworn allegations are now being tabled and will be distributed to interested persons.

I can say, for the record, that I unequivocally deny the allegations. I have not done anything wrong. I have not prejudged these matters. I will not prejudge these matters. I will only judge these matters after all the evidence is in. And I have conferred with my colleagues, I have confidence that I can continue to chair this Panel of this hearing.

Specifically, pursuant to Rule 11(2) of the Commission rules, the issues arising out of the allegation will be referred to Federal Court. In the meantime, the Panel in recognition of the seriousness of the allegation has decided to adjourn until November 17th, 1998.

It is now adjourned.".

[14]      On November 16, 1998, the Applicants commenced their judicial review application of the PCC's decision to continue the hearing notwithstanding the allegations that the Applicants had a reasonable apprehension of bias that the Panel Chair might have prejudged the issues and might therefore be bias.

[15]      On November 24, 1998 the subject motion was brought by the Applicants. As I indicated earlier, the Applicants seek an order that all future proceedings of the PCC be stayed until such time as their judicial review application has been disposed of.

[16]      In Whirlpool Corp. et al. v. Camco Inc. et al. (1996), 105 F.T.R. 268, the Associate Chief Justice (as he then was) summarized the applicable test, at pp. 271 and 272, as follows:

"On an application for an interlocutory injunction, the three-part American Cyanamid [...] test (adopted in Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.) [...] should be applied [...]. The following factors are to be considered:

- At the first stage, the applicant must demonstrate a serious question to be tried. Whether the test has been satisfied should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on the merits. A motions court should only go beyond a preliminary investigation of the merits when the result of the interlocutory motion will in effect amount to a final determination of the action. Unless the case on the merits is frivolous or vexatious, a judge on a motion for relief must, as a general rule, consider the second and third stages of the Metropolitan Stores [...] test.

- At second stage, the applicant must convince the court that it will suffer irreparable harm if the relief is not granted. "Irreparable" refers to the nature of the harm rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court's decision; where one party will suffer permanent market loss or irrevocable damage to its business reputation; or where a permanent loss of natural resources will be the result when a challenged activity is not enjoined. The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration. Proof of irreparable harm must be clear and not speculative [...].

- The third stage, called the balance of convenience, involves a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits. It has also been referred to as the balance of inconvenience. The factors which must be considered in assessing the balance of convenience and the relative weight to be attached to them are numerous and will vary in each individual case.

In the R.J.R.-MacDonald [...] case, Justices Sopinka and Cory, on behalf of the court, noted that in the course of discussing the balance of convenience in American Cyanamid, Lord Diplock stated that when everything else is equal, 'it is counsel of prudence to ... preserve the status quo.' [...] They stated that this approach would seem to be of limited value in private law cases.".

[17]      I begin with the serious question to be tried. As a preliminary point there was some debate as to whether the issue of the Chair's alleged bias ought not to have been raised and argued before the Panel. Mr. MacIntosh, for the Applicants, referred me to the decision of the Federal Court of Appeal in Beno v. Canada (Commission of Inquiry into the Deployment of Canadian Forces to Somalia / Létourneau Commission), Court File A-672-96, a decision of November 18, 1996, in support of his submission that the Applicants could properly bring the bias issue directly to this Court. Mr. Justice Pratte, for the Court of Appeal, at p. 2 of his Reasons, states:

He [the motions judge] accordingly held that the judicial review proceedings would be decided only on the basis of the evidence that the Commission had before it. We doubt the correctness of those assumptions and of that conclusion. We are inclined to think that the Commission lacked the jurisdiction to rule on the disqualification of its chairman and that, on an application for judicial review and prohibition based on a reasonable apprehension of bias on the part of a member of a tribunal, the applicant is always entitled to adduce in support of his application any evidence tending to show the alleged bias.".

[18]      In the present matter, although the panel indicated that it was prepared to hear submissions regarding the Chair's alleged bias, the Applicants decided to pursue the matter directly to this Court and they commenced judicial review proceedings. Having decided to pursue the matter in this Court, the Applicants sought an adjournment from the Panel until January 18, 1999 or such later date as the Panel might specify. On November 19, 1998 the Panel refused the adjournment and indicated that its Hearing would resume on November 25, 1998. In view of the Reasons given by Mr. Justice Pratte in Beno (supra), I can only conclude that the Applicants' judicial review application has properly been brought before this Court.

[19]      I do not think that there can be any doubt that the judicial review application commenced by the Applicants raises a serious issue. The allegations made by Constable Black are of a very serious nature. They challenge the Panel Chair's fitness, in the circumstances, to remain a member of the Panel appointed to hear the complaints made against the Applicants. The fact that Mr. Morin has denied making the statements which Constable Black says he made does not render the question to be tried less serious. Constable Black's allegations are going to come under close scrutiny. They will obviously be challenged. However, that challenge will be dealt with in the judicial review proceedings. At this stage, in view of the evidence, I can only conclude that the Applicants have met the first part of the test.

[20]      I now turn to the question of irreparable harm. On September 10, 1998, Hugessen, J. refused to suspend the Hearing of the PCC on the grounds that the Applicants before him, i.e. some of the complainants in the PCC proceedings, had not shown that they would suffer irreparable harm if the order which they sought was not granted. Hugessen, J. then went on to discuss the third prong of the test, the balance of convenience, and he made the following remarks, at p. 4 of his Reasons:

"Those people [the applicants herein] are the only people who really stand to suffer any serious harm from an adverse report by the Commission. They have a very strong interest indeed in the Commission doing its work. The events took place in November. It is important that charges or suggestions or innuendos about their conduct, which are unfavourable to them and may impact upon their professional careers, should be aired and explored and disposed of as soon as possible. The suspension of the hearing would cause harm to those people.".

[21]      I agree entirely with Hugessen, J. that the Applicants stand to suffer serious harm if the Panel issues an adverse report. The harm which the Applicants stand to suffer would, in my view, be irreparable. Mr. MacIntosh referred me to the decision of the British Columbia Court of Appeal in Bennett v. British Columbia (Superintendent of Brokers), [1993] B.C.J. No. 246. In that case the Court of Appeal had to decide whether proceedings before the British Columbia Securities Commission (the "Commission") should be stayed pending an appeal of the Panel's decision that allegations of a reasonable apprehension of bias in respect of one of the Panel members were unfounded. Lambert, J.A., in granting leave to appeal from the Panel's decision, concluded that the proceedings before the Commission should be stayed. The purpose of the proceedings before the Commission was to investigate allegations of insider trading made against three individuals. At p. 5 of his Reasons, Lambert, J.A. explains his conclusion that a stay is necessary in the circumstances:

"17      There is a great deal of harm being done to the applicants by this very public hearing. It has been said by counsel that the applicants themselves may be called by the Commission to testify. Their credibility may well be challenged. Considerable prejudice may be visited on all of the applicants even before any decision of the Commission is made. A decision of the Commission adverse to the applicants could cause further prejudice to them and further prejudice to many other people as well.

18      The Superintendent of Brokers argues that the public interest requires that the hearing continue. I do not agree. There is no public interest, in my opinion, in inflicting grave prejudice on the three applicants by concluding a hearing which may turn out in the end to be void because a decision of this Court is made that there is reasonable apprehension of bias in relation to one or more members of the panel in the carrying out of their judicial duty. Because there is a bona fide ground of appeal and because the interests of justice require that the appeal be heard, I grant leave to appeal.

19      The next question relates to whether a stay of proceedings should be granted until a decision is given on the appeal. Again, I must balance the interests of justice, and again I reach the same decision. The grave injustice that would be done to the three applicants by having a Panel conclude its hearing, when that Panel may in the end be found to have been disqualified from the hearing because of a reasonable apprehension of bias, far outweighs in my opinion whatever public interest there may be in continuing the hearing. Accordingly, I grant a stay.".

[22]      In my view, Lambert, J.A.'s comments are entirely relevant to the present matter. Consequently, in the present instance, I am satisfied that if the stay which the Applicants seek is not granted irreparable harm will occur.

[23]      Lastly, the Applicants must demonstrate that the balance of convenience is in their favour. Although the public interest must be taken into account in considering whether a stay ought to be granted, that is not determinative of the issue. At pp. 4 and 5 of the Reasons he gave in support of his September 10, 1998 Order, Hugessen, J. stated:

"There is also a question of harm to the public interest. The events at the APEC Summit last November caused a great deal of public concern and that concern still manifests itself today in the media. It is in the public interest that a public inquiry into those events should take place. Indeed, the applicants themselves are amongst those who are responsible for the fact that the public inquiry is to take place next Monday. It seems to me to be unjust and improper that they should now attempt to bootleg the process which they have themselves started and to bring it to a halt when it is at the very point of bearing fruit.".

[24]      Those remarks are in line with those made by the Associate Chief Justice (as he then was) in Bell Canada v. Communications, Energy and Paperworks Union of Canada, [1997] F.C.J. 207, where, at pp. 12 and 13, the Associate Chief Justice states:

"42      In arriving at a decision on to the balance of convenience, the Court must consider the public interest in having complaints of discrimination dealt with expeditiously. [...] The pay equity provisions are part of the Canadian Human Rights Act, a public statute which has been referred to by the Supreme Court of Canada as quasi-constitutional. The Commission and the complainants hear the onus of proof before the Tribunal. Bell Canada has the right to be represented by counsel, to cross-examine witnesses and to call evidence and make submissions on its own behalf. Any substantive issues can be raised before the Tribunal.

...

44      I do not believe that this is in the public interest to delay proceedings before the Tribunal. As McKeown, J. stated in Federation of Women Teacher's Association v. Ontario Human Rights Commission, [...] the role of the Commission as representing the public interest must be considered when deciding whether to stay its proceedings. As a matter of balance of convenience, taking into account the public interest, and the interest of the complainants, no stay should be granted [...].".

[25]      Although I agree entirely, as a matter of principle, with the views expressed by my colleagues Hugessen, J. and the Associate Chief Justice, I am of the opinion that in the present matter the balance of convenience lies in favour of the Applicants. In Bennett (supra), Lambert, J.A. at p. 5 of his Reasons, stated that, in his opinion, there was "no public interest, ... in inflicting grave prejudice on the three applicants by concluding a hearing which may turn out in the end to be void because a decision of this court is made that there is reasonable apprehension of bias in relation to one or more members of the Panel in the carrying out of their judicial duty...". I am of the view that there is also no public interest, in the present matter, in inflicting prejudice on the Applicants by concluding a hearing which may be terminated because this Court concludes that there is a reasonable apprehension of bias in regard to the Chair of the Panel.

[26]      I am also of the view that the public interest, in this case, requires that the issue of bias be resolved as soon as possible. The public interest also requires, in my view, that the Hearing not resume before the bias issue has been resolved.

[27]      It is for these reasons that on November 26, 1998, I ordered that all further proceedings of the PCC in the matter of complaints made against the Applicants in connection with the APEC meetings in Vancouver in November, 1997 would be stayed.

                             (Sgd.) "Marc Nadon"

                                 J.F.C.C.

Vancouver, British Columbia

27 November 1998

__________________

     ¹      The PCC was created by Part VI of the Royal Canadian Mounted Police Act , R.S.C. 1985, c. R-9. The PCC is the civilian agency which investigates and hears complaints by members of the public against members of the RCMP.