Date: 20100915
Docket: T-1921-09
Citation: 2010 FC 917
Toronto, Ontario, September 15, 2010
PRESENT:
The Honourable Mr. Justice Zinn
BETWEEN:
POLICE
CONSTABLE CRYSTAL PITAWANAKWAT
Applicant
and
WIKWEMIKONG TRIBAL
POLICE SERVICES
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to s. 18.1 of the Federal
Courts Act, by a former member of the Wikwemikong Tribal Police Service
(WTPS), of the decision of the WTPS that she was guilty of discreditable
conduct and of the resulting decision to dismiss her from her position as a
police officer.
[2]
For the reasons that
follow, this application is dismissed.
Background
[3]
The Wikwemikong First
Nation (WFN) is located in the eastern part of Manitoulin Island, Ontario. The WFN is policed by the respondent, the
WTPS, a body established by the WFN to provide primary policing services
throughout its territory. The services of the WTPS are provided pursuant to a
tri-partite agreement, the Wikwemikong Policing Agreement, which was entered
into by the WFN and the governments of Canada and Ontario. More will be said of this agreement when the issue of
this Court’s jurisdiction in this application is examined.
[4]
The
applicant, Crystal Pitawanakwat, was employed as a police officer by the WTPS
and, under the Wikwemikong
Policing Agreement, was appointed
a First Nations Constable pursuant to section 54 of the Police Services Act,
R.S.O. 1990, c. P-15. The relevant provisions of the Police Services Act
are reproduced in Annex A to these Reasons.
[5]
In December 2004,
Police Chief Gary Reid of WTPS received information by way of a Crime Stoppers
tip that the applicant was involved in using and selling cocaine. He reported
that information to the Ontario Provincial Police (OPP) and asked it to
investigate. Police Chief Reid received more information over time concerning
the applicant, all of which he passed on to the OPP.
[6]
On December 14, 2007,
Police Chief Reid and Staff Sergeant DeCook of the OPP met with and interviewed
the applicant regarding these allegations. Following the interview, the
applicant resigned from her position with the WTPS, although she subsequently
resiled from that action.
[7]
On May 9, 2008, the
applicant was charged by Police Chief Reid with Breach of Confidence, Neglect
of Duty, and Discreditable Conduct. The Notices of Hearing provided to the
applicant with respect to these charges informed her that the alleged conduct
was contrary to the Police Services Act “as adopted by the Board of
Commissioners of Police of the Wikwemikong Tribal Police Services and the
Wikwemikong Tribal Officers Association.”
[8]
Part V of the Police
Services Act sets out the process for the resolution of complaints
regarding allegations of misconduct by the police. Although a new Part V was
proclaimed in force on October 19, 2009, the process that was applied to the
applicant was that under Part V as it read prior to October 19, 2009.
[9]
On May 29, 2008,
Police Chief Reid of the WTPS authorized Superintendent (Retired) Elbers to conduct a
hearing of these charges. The authorization reads as follows:
Pursuant
to Section 76(1) of the Police Services Act, R.S.O. 1990 as amended, and
as adopted by the Board of Police Commissioners of Wikwemikong Tribal Police
Service, I hereby authorize Retired Superintendent Morris Elbers, a former
member of the Ontario Provincial Police, to exercise any of the powers and
perform any of the duties required to conduct a hearing pursuant to Section 64
of the Police Services Act.
[10]
Following a hearing, on July 9, 2009,
Superintendent (Retired) Elbers acquitted the applicant of the breach of
confidence and neglect of duty charges, but convicted her on the discreditable
conduct charge. On October 23, 2009, Superintendent (Retired) Elbers
determined that the appropriate punishment for the applicant’s misconduct was
dismissal, and that she would be dismissed if she did not first resign. She
did not resign and was subsequently dismissed by the WTPS.
[11]
As a
preliminary issue at the hearing the applicant had argued, as she does in this
application, that the charges should be quashed because they were brought more
than six months after the allegations of misconduct first came to the attention
of the Chief of Police. Section 69(18) of the former Police Services Act provided
as follows:
If six months have elapsed since the
facts on which a complaint is based first came to the attention of the chief of
police or board, as the case may be, no notice of hearing shall be served
unless the board (in the case of a municipal police officer) or the
Commissioner (in the case of a member of the Ontario Provincial Police) is of
the opinion that it was reasonable, under the circumstances, to delay serving
the notice of hearing.
[12]
On
January 20, 2009, Superintendent (Retired) Elbers determined that the initial
information Police Chief Reid received amounted only to rumour and
unsubstantiated conjecture. He held that the facts on which the complaint was
based did not emerge until the applicant admitted to using cocaine during her
interview on December 14, 2007. Therefore, the charges were timely and the motion
to quash was dismissed.
[13]
Superintendent
(Retired) Elbers reviewed the evidence and found that the applicant’s evidence
suffered from “several inconsistencies” and that “[s]elective memory loss also
plays a card in the evidence presented by these parties [the applicant and a
prosecution witness].” He noted that the applicant had admitted to cocaine
usage in her interview with Police Chief Reid and Staff Sergeant Joe DeCook.
He found that the testimony of “Chief Reid was forthright…and was not shaken in
cross examination in relation to that interview.” He then reviewed the
evidence of other witnesses regarding the applicant’s alleged use and trafficking
of narcotics.
[14]
Superintendent
(Retired) Elbers found that the applicant was free to leave the December 14,
2007 interview at any time and that Police Chief Reid and Staff Sergeant Joe
DeCook had informed her numerous times that she was not facing criminal
charges. In her testimony at the hearing, the applicant resiled from her
admission of cocaine usage and said that her only use of cocaine was
inadvertent. Based on his experience in the Drug Enforcement Section of the
OPP, Superintendent (Retired) Elbers challenged the applicant’s credibility and
refused to accept her characterization of her single cocaine usage.
[15]
Superintendent
(Retired) Elbers noted the testimony of two individuals, who were “not seeking
any favour for their testimony,” who stated that they had both bought cocaine
from the applicant and had also sold cocaine to her. He noted that the
applicant “in her testimony has admitted to ‘hanging out’ with persons involved
in drugs” and stated that “[i]t certainly is apparent via her interview that
she attended places and spoke to people that she should have stayed away from.
She also was not forthright in her interview [on December 14, 2008].”
[16]
Superintendent
(Retired) Elbers rejected the applicant’s submission that a “culturally
sensitive” approach must be taken for the applicant, and stated that:
The situation with officers at Wikwemikong
is no different than officers that police small towns and villages. You are
bound to know people. The Oath for a police officer is not a selective approach.
If you desire to wear the uniform there is a higher standard of conduct that is
expected of you.
Constable Pitawanakwat must be reminded
of her position and what the community expects of her as a police officer
serving in Wikwemikong.
The conduct and actions displayed by this
officer is discreditable and does affect the reputation of this Service.
[17]
On
this basis, Superintendent
(Retired) Elbers concluded that the applicant was guilty of discreditable
conduct. He subsequently ruled that her misconduct was deserving of dismissal:
In light of the seriousness of these
allegations, and bearing in mind all the evidence before me, it is the decision
of this Tribunal that Constable Crystal Pitawanakwat #2611 shall be dismissed
from the Wikwemikong Tribal Police Service in seven days, unless she resigns
before that time.
The
applicant did not resign and Police Chief Reid terminated her employment.
Issues
[18]
The applicant raised
numerous issues in her Memorandum of Argument; however, only two were pursued at
the hearing. In my assessment, this was appropriate as those two issues were
the only serious issues in dispute between these parties.
[19]
The Court raised with
the parties the issue of jurisdiction and both parties provided the Court with
helpful submissions. There are therefore three issues that require the Court’s
attention:
1. Whether
this Court has jurisdiction to review the decision;
2. Whether
the tribunal erred in determining that the Notices of Charge were properly
served in accordance with the Police Services Act; and
3. Whether
the reasons given were sufficient.
1.
Jurisdiction of this Court
[20]
First Nations police
services are a relatively recent phenomenon and neither counsel was able to
point to any authority confirming this Court’s jurisdiction to hear this
application. It has been observed that jurisdictional issues surrounding
aboriginal policing are unsettled,
and First Nations police services have been described as having “a tenuous
existence in law.”
[21]
The Supreme Court of
Canada in ITO – International Terminal Operators Ltd. v. Miida Electronics
Inc., [1986] 1 S.C.R. 752, articulated the test for assumption of
jurisdiction by this Court as a three-fold test.
… [T]he essential requirements to support
a finding of jurisdiction in the Federal Court […] are:
1. There must be a statutory grant of
jurisdiction by the federal Parliament.
2. There must be an existing body of
federal law which is essential to the disposition of the case and which
nourishes the statutory grant of jurisdiction.
3. The law on which the case is based
must be “a law of Canada” as the phrase is used in s. 101 of the
Constitution Act, 1867.
(i) Statutory Grant of Jurisdiction
[22]
The starting point of
this analysis is subsection 18.1(3) of the Federal Courts Act which
provides the authority for judicial review and states that:
|
18.1(3) On an
application for judicial review, the Federal Court may
(a) order a
federal board, commission or other tribunal to do any act or thing it has
unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare
invalid or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
|
18.1(3) Sur
présentation d’une demande de contrôle judiciaire, la Cour fédérale peut:
a) ordonner à
l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou
refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable;
b) déclarer
nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement
conformément aux instructions qu’elle estime appropriées, ou prohiber ou
encore restreindre toute décision, ordonnance, procédure ou tout autre acte
de l’office fédéral.
|
[23]
Subsection 2(1) of
the Federal Courts Act describes what constitutes a “federal board,
commission or other tribunal” as follows:
|
“federal
board, commission or other tribunal” means any body, person or persons
having, exercising or purporting to exercise jurisdiction or powers conferred
by or under an Act of Parliament or by or under an order made pursuant to a
prerogative of the Crown, other than the Tax Court of Canada or any of its
judges, any such body constituted or established by or under a law of a
province or any such person or persons appointed under or in accordance with
a law of a province or under section 96 of the Constitution Act, 1867.
|
« office
fédéral » Conseil, bureau, commission ou autre organisme, ou personne ou
groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des
pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu
d’une prérogative royale, à l’exclusion de la Cour canadienne de l’impôt et ses
juges, d’un organisme constitué sous le régime d’une loi provinciale ou d’une
personne ou d’un groupe de personnes nommées aux termes d’une loi provinciale
ou de l’article 96 de la Loi constitutionnelle de 1867.
|
[24]
The question this
Court must answer is whether the WTPS is a “federal board, commission or other
tribunal” within the meaning of the Federal Courts Act.
[25]
As has been noted,
the WTPS was established pursuant to a tripartite agreement between the federal,
provincial, and aboriginal governments. The authority for such a tripartite
agreement is the First Nations Policing Policy (FNPP), which was
introduced by the federal government following the Oka Crisis: Canada, Public Safety Canada: First Nations Policing Policy
(June 1991). Tripartite agreements under the FNPP provide that 52% of
the funding for Aboriginal police services will be provided by the federal
government with the remaining 48% coming from the provincial government.
[26]
There is ample jurisprudence
from this Court that an Indian band council can be a “federal board, commission
or other tribunal” for the purposes of subsection 18.1(3) of the Federal
Courts Act: see Canatonquin v. Gabriel, [1980] 2 F.C. 792 (C.A.), at
para. 1; Sparvier v. Cowessess Indian Band #73, [1994] 1 C.N.L.R. 182
(F.C.T.D.), at paras. 13-15; Peace Hills Trust Co. v. Saulteaux First Nation,
2005 FC 1364, at para. 59; Vollant v. Sioui, 2006 FC 487, at para. 25; Devil’s
Gap Cottagers (1982) Ltd. v. Rat Portage Band No. 38B, 2008 FC 812, at para. 39; Cottrell
v. Chippewas of Rama Mnjikaning First Nation Band Council, 2009 FC 261, at
para. 81.
[27]
Band Council
decisions have been found not to be judicially reviewable by this Court where they
are of a purely private, commercial and contractual nature: Peace Hills;
Devil’s Gap; Cottrell. I am satisfied that the decision of the
Wikwemikong Band Council to establish the WTPS was not one of a purely private,
commercial and contractual matter. I find that the decision to have the
policing of the First Nations done by First Nations Constables pursuant to the
tripartite agreement was a decision having a significant public interest element.
As such, I accept that the Wikwemikong Band Council, insofar as its dealing
with the establishment of the WTPS is concerned, was acting as a “federal
board, commission or other tribunal” within the meaning of the Federal
Courts Act. However, it does not necessarily follow that the WTPS, in
making the decision challenged in this application was also acting as a
“federal board, commission or other tribunal” within the meaning of subsection
2(1) the Federal Courts Act.
[28]
Justice Mactavish
described the key principles relating to the definition in subsection 2(1) of
the Federal Courts Act in DRL Vacations Ltd. v. Halifax Port
Authority, 2005 FC 860. At para. 48, she concluded that the phrase “powers
conferred by or under an Act of Parliament” in that subsection “is
‘particularly broad’ and should be given a liberal interpretation.” Her view
in this regard has been cited with approval in the aboriginal context: Devil’s
Gap at para. 33.
[29]
A number of cases
have held that institutions or posts established by band councils by extension
enjoy the same “federal board, commission or other tribunal” status as the band
council itself. In
Sparvier, Justice Rothstein concluded at para. 14 that because a band
council elected pursuant to customary Indian law is a federal board, an
election Appeal Tribunal elected pursuant to customary Indian law would
logically also be a federal board. In Parisier v. Ocean Man First Nation (1996),
108 F.T.R. 297 (T.D.), the Court determined that since a band council
constitutes a “federal board, commission or other tribunal,” by analogy an Electoral
Officer appointed by a band council shares this status. In Okeymow v.
Samson Cree Nation, 2003 FCT 737, the Court followed the reasoning in Parisier
and found that the chairman of the Samson Election Appeal Board was also
“federal commission, board or other tribunal.”
[30]
Although the
implementation of the First Nations police force is accomplished through the
collaboration of federal, provincial, and aboriginal governments, the decision
to establish a First Nations police force, as with the choice to establish the
various electoral supervision institutions in the cases above, is made by the
band council. Furthermore, where the duties of First Nations Constables relate
to a reserve, as is the case with the WTPS, the appointment, suspension, or
termination of constables requires the approval of the reserve’s police
governing authority or the band council. Subsections 54(2) and (4) of the former
Police Services Act, which provide as follows, make this clear:
(2) If the
specified duties of a First Nations Constable relate to a reserve as defined in
the Indian Act (Canada), the appointment also requires the
approval of the reserve’s police governing authority or band council.
…
(4) The
Commissioner shall not suspend or terminate the appointment of a First Nations
Constable whose specified duties relate to a reserve without first consulting
with the police governing authority or band council that approved the
appointment.
[31]
If one applies the
logic of Sparvier, Parisier, and Okeymow, then a First Nations
police force depends on the band council for its existence, and accordingly the
force is also properly characterized as a federal commission, board or other
tribunal.
[32]
Regardless of their
origins, it is my view that First Nations police forces have a distinct federal
character. Although the former Ontario Police Services Act provides for
the appointment and termination of a First Nations Constable and subsections
54(1), (3), (5), and (6) of that Act confers on them the same powers as a
police officer, subsection 2(1) of that Act makes it clear that First Nations
Constables are not “police officers” within the meaning of the Act with the
result that much of that legislation does not apply to them. Conversely, I note
that the federal government exercises supervisory power over the First Nations
Policing Program through audit activities: Canada,
Public Safety and Emergency Preparedness, “Audit of the First Nations Policing
Program,” (Ottawa: Audit Services Canada, March 2007); see
also “Follow-up Audit Management Action Plan (2007) for the First Nations
Policing Program: Audit Report – June 2010.” It is the federal First Nations
Policing Policy which continues to dictate the purpose, objectives, and policy
principles of the First Nations Policing Program. Lastly, as has been noted,
the federal government provides the majority of the funding for First Nations
policing.
[33]
For these reasons, I
find that the WTPS is a “federal board, commission or other tribunal” within
the meaning of the Federal Courts Act and the first branch of the ITO
test has been met.
(ii) Existing Body of Federal Law
[34]
Is there is an
existing body of federal law which is essential to the disposition of the case
and which nourishes the statutory grant of jurisdiction? I am of the opinion
that there is.
[35]
Although labour
relations are generally within provincial jurisdiction, the Canada Labour
Code, R.S., 1985, c. L-2 applies to a “federal work, undertaking or
business” which includes “any work, undertaking or business that is within the
legislative authority of Parliament”: see sections 2 and 4. Under s. 91(24) of
the Constitution Act, 1867, “Indians, and Lands reserved for the Indians”
come within the exclusive legislative authority of Parliament.
[36]
Justice Beetz,
writing for the majority in Four B Manufacturing v. United Garment Workers,
[1980] 1 S.C.R. 1031, determined that an on-reserve factory did not fall within
federal jurisdiction because it was not related to “Indianness.” Thus not all
labour relations on Indian land falls under federal jurisdiction.
[37]
However, unlike the
factory in Four B the
WTPS is related to
“Indianness.” The First Nations Policing Policy under which aboriginal police
forces are established provides as one of its principles that:
First Nations communities should be
policed by such numbers of persons of a similar cultural and linguistic
background as are necessary to ensure that police services will be effective
and responsive to First Nations cultures and particular policing needs.
Furthermore,
the Wikwemikong Policing Agreement establishing the WTPS provides that one of the
WTPS’ purposes is “to
continue the provision of effective, efficient and culturally appropriate
policing services in a manner consistent with and appropriate to the culture
and traditions of the people of Wikwemikong throughout the Wikwemikong
territory.”
[38]
A number of cases
have confirmed that institutions with a distinct aboriginal character, like the
WTPS, fall within federal jurisdiction.
[39]
In Sagkeeng
Alcohol Rehab Centre Inc. v. Abraham, [1994] 3 F.C. 449 (T.D.), Justice
Rothstein determined that a rehabilitation centre dedicated to serving Indians
was subject to the Canada Labour Code. Justice Rothstein distinguished
the rehabilitation centre from the factory in Four B on the ground that
the centre was tailored to serving Indians, and warned at para. 15 against a
strict focus on the subject matter of the institution: “[t]o say that the focus
of the applicant is on the treatment of alcoholism is to gloss over the way in
which the applicant operates its program … The focus of the applicant is on
alcohol rehabilitation of Indians and that is the function its program is designed
to perform.” The same is true of the WTPS; its focus is not just policing, but
rather aboriginal policing.
[40]
Moreover, the
Canadian Industrial Relations Board and its predecessor have found that
aboriginal police forces like the WTPS fall within federal jurisdiction. In Mohawks
of the (Bay of Quinte) Tyendinaga
Mohawk Territory (Re), [2001] 1 C.N.L.R. 176 (C.I.R.B.), the Board found that it
had jurisdiction to consider a certification application from members of the
Tyendinaga First Nations Police Service. The Board concluded that:
… to characterize First Nations policing
operations as similar or identical to other police operations would be to
sidestep the real issue of the objective of the policing services on Indian
reserves. The highlight of the program is to emphasize the perspective and
values unique to First Nations peoples while ensuring the enforcement of law
and order on the reserves. In light of these findings, the Board is of the view
that the First Nations policing arrangement in the present case is related to
“Indianness” and, accordingly, falls under Parliament's competence over Indians
and Lands reserved for Indians as set out in section 91(24) of the Constitution
Act, 1867, and further that the power to regulate the labour relations at
issue forms an integral part of the primary federal jurisdiction over Indians..
[41]
I find therefore that
there is an existing body of federal law which is essential to the disposition
of the case and which nourishes the statutory grant of jurisdiction.
(iii) A Law of Canada
[42]
I am of the view that
the laws relating to aboriginal police forces, the subject matter of this application,
are “law[s] of Canada.” Subsection 91(24) of the Constitution
Act, 1867 provides that matters related to “Indians, and Lands reserved for
the Indians” are within federal legislative competence. It is under this head
of power that Parliament passed the Indian Act, subsection 81(1)(c) of
which permits band councils to make by-laws for the observance of law and
order. It is subsection 81(1)(c) that empowers a band to establish a police
force: Jack Woodward, Native Law, looseleaf (Toronto: Carswell, 1994),
at 378.10.
[43]
While not
determinative, it is also relevant that First Nations appear to hold to the
view (WFN certainly does in this case) that the federal and not the provincial
government has jurisdiction over policing on its land. The statement of the
Honourable Sidney B. Linden, Commissioner of the Ipperwash Inquiry, is
instructive:
I am aware that some First Nations and
political organizations in Ontario, probably most, have concerns about the
propriety of any provincial legislation with respect to First Nation policing.
They believe that their treaty relationship is with the federal Crown and that
federal legislation is more appropriate. These are legitimate considerations.
(Report on the Ipperwash Inquiry (Ontario: Ministry of the Attorney General,
2007), at 262 of Vol. 2).
[44]
Accordingly, I am
satisfied that all three branches of the ITO test have been met and that
the Federal Court has jurisdiction over this application.
2. Whether the Notices of Charge were served in
accordance with the Police Services Act
[45]
The applicant submits
that the proceeding leading to her dismissal was a nullity as she was not
served with the Notices of Charge within the six month period prescribed by
subsection 69(18) of the old Police Services Act, reproduced above at
para. 11 of these reasons.
[46]
The applicant asserts
that the allegations of discreditable conduct were first brought to the
attention of the Chief of the WTPS on December 20, 2004, but that she was not
served with the Notice of Hearing until May 9, 2008. She says that without the
approval of the Commissioner of the Ontario Provincial Police to this late
service, the proceeding to which she was subjected was a nullity.
[47]
The immediate
difficulty with this submission is that subsection 69(18) of the Police
Services Act deals with complaints of misconduct directed to a “police
officer” but “police officer” is defined in section 2 of that Act to not include
a First Nations Constable, such as the applicant. Accordingly, on its face,
subsection 69(18) has no application to the applicant.
[48]
The applicant then
points to the Tripartite Policing Agreement and the agreement of those parties
which, she submits, incorporates the deadlines provided in subsection 69(18).
She relies on Section 9 of the Agreement:
9.1 The Board shall maintain the Wikwemikong
Police Policy Procedures Manual, which describes the policies and
operational procedures of the Wikwemikong Tribal Police Service, including but
not limited to a code of conduct, code of discipline and a public complaints
procedure.
9.2 The principles reflected in the
Wikwemikong Police Policy Procedures Manual shall be consistent with the
principles set out in the Police Services Act, R.S.O. 1990 c. P-15.
[49]
I find questionable the
submission that the limitation period set out in subsection 69(18) is captured
by the terms “code of conduct, code of discipline and a public complaints
procedure” or that it is something one expects to see set out in a manual that
describes the policies and operational procedures of the WTPS. In short, it is
not evident to me that the limitation period would be incorporated in the WTPS
manual by virtue of Section 9 of the Tripartite Agreement. It is of some note
that no Wikwemikong Police Policy Procedures Manual was in the record
before the Court; apparently none exists.
[50]
Superintendent (Retired)
Elbers proceeded on the assumption that the limitation period did apply to the
applicant and the respondent. He was of the view that the information that Police
Chief Reid received on December 14, 2007, through Crime Stoppers was “a rumour”
or “innuendo” and held that the limitation period did not commence from that
date. He relied on a decision of the Ontario Civilian Commission on Police
Services in Brannagan and the Peel Regional Police Service (August 25,
2003) in which the Commission stated that “the six month period does not
commence from the date of making bald and unsubstantiated allegations of
wrongdoing.” Rather, relying on other Commission decisions, he found that the
limitation period commenced when the evidence establishes a “clear body of
factual information supporting allegations of misconduct.” He further held that
there was only clear evidence relating to the applicant as of December 14, 2007,
when she admitted to cocaine use. Accordingly, he found that the limitation
period had been respected.
[51]
Despite counsel’s
vigorous attempt to persuade me otherwise, I find that this decision as to when
the limitation period commenced to be reasonable and justified on the basis of
the evidence that was before the board. In Gough v. Peel Regional Police
Service, [2009] O.J. No. 1155, the Ontario Divisional Court held that the
limitation period runs when the Chief of Police has “some evidence that
misconduct may have occurred”; however, I do not read that judgment as saying
that “some evidence” may be anonymous and vague allegations. The evidence that
starts the clock running must be evidence that the Chief can act upon and
investigate, otherwise the employer would be in an untenable position where
unsubstantiated and general allegations that are incapable of independent
investigation but which subsequently prove accurate, in part, result in the
Chief being unable to discipline the officer. That clearly is not the intent
of the legislation in providing an officer with the protection of a limitation
period; rather, it is to ensure that a Chief does not sit on evidence of wrong-doing
on the officer’s part, holding it over his or her head like the sword of
Damocles.
3.
Sufficiency of Reasons
[52]
The applicant submits
that “the absence of reasons for rejecting the evidence of Constable Crystal
Pitawanakwat and the failure of the adjudicator to delineate the onus required
of the prosecution calls for the intervention on the part of [this Court].”
[53]
A reading of the
decision as a whole makes it clear why the adjudicator rejected the applicant’s
exculpatory evidence. Specifically, the following led him to this conclusion.
The applicant initially denied any drug use when questioned in December 2007, but
she later admitted to having tried it one time when she sprinkled cocaine onto
a cigarette and “inhaled only once.” The adjudicator was an experienced drug
enforcement officer and he stated that he knew, based on his personal
knowledge, that cocaine does not burn in its powdered form, and thus he
disbelieved the applicant’s evidence. He then went on to note that she later
admitted to having tried it “seven or eight times.” In short, her story of
drug use shifted as she was pressed. In addition, the adjudicator noted that
the applicant denied ever having sold cocaine; however there were two
independent witnesses who testified that they had purchased cocaine from her.
Although these witnesses have criminal records, the adjudicator found that they
were not shaken in cross-examination and that they had nothing to gain from testifying
at the hearing. In short, the adjudicator preferred their evidence to that of
the applicant.
[54]
The adequacy of a
tribunal’s reasons is to be assessed based on the purpose the reasons serve in
the matter under consideration: VIA Rail Canada Inc. v. National
Transportation Agency, [2001] 2 F.C. 25 (C.A.). The reasons must reflect
the reasoning process of the decision-maker. Here, the decision-maker did not
refer to the evidence heard over the many days of hearing that was not
necessary or required. He did, however, set out under relevant headings the
relevant evidence and the findings of fact on which he based his conclusions.
In my view, the reasons are adequate. The reasons permit the applicant to know
why her evidence was rejected and what evidence was accepted that led to the
finding of discreditable conduct – namely the use and selling of illegal drugs.
Frankly, that conduct in my view necessarily leads to the conclusion that the
officer had engaged in discreditable conduct. If the applicant does not
understand that, then there is nothing the decision-maker could have said to
make that point evident.
[55]
The parties were
canvassed and made submissions on costs. The respondent submitted that if
successful it should be entitled to an award of $5,000. It submitted that a $3,500
award might be appropriate but for the fact that it had to engage in additional
work to put before the Court the complete record below, which the applicant
failed to do. There is some merit in that submission. However, in my view, an
award of $4,000 inclusive of fees, disbursements and taxes, adequately
addresses that concern.
JUDGMENT
THIS COURT ORDERS that:
1. This
application is dismissed; and
2. The
respondent is awarded its costs in the amount of $4,000.00, inclusive of fees,
disbursements and taxes.
"Russel W. Zinn"
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