Docket: T-1950-11
Citation: 2012 FC 765
Ottawa, Ontario, June 20,
2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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GORDON ANDREW COOK
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Applicant
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and
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ROYAL CANADIAN MOUNTED POLICE
and
PUBLIC PROSECUTION SERVICE
OF CANADA
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This
is an application
for judicial review on behalf of Gordon Andrew Cook (the Applicant), pursuant
to section 18.1 of the Federal Courts Act, RSC, 1985, c F-7, in respect
of a decision of the Royal Canadian Mounted Police [RCMP] to disclose the
Applicant’s disciplinary record to the Public Prosecution Service of Canada
[PPSC] in a criminal matter as per R v McNeil, [2009] 1 S.C.R. 66, 2009 SCC
3 [McNeil].
[2]
For
the reasons that follow this application is dismissed.
II. Facts
[3]
The
Applicant has been employed with the RCMP for fifteen years and is currently in
Joint Forces Operation, Drug Unit, Prince District, “L” Division in North Badeque,
Prince
Edward Island.
[4]
In
2001, the Applicant was involved in incidents while posted in British Columbia that lead to two
informal discipline charges being placed on his record. These informal
discipline charges are related to incidents that occurred on June 1, 2001 and
December 18, 2001. Discipline was administered for both charges on February 19,
2002. Section F.1.d of the Commissioner Standing Order provides that informal
discipline is spent one year after its administration.
[5]
The
Applicant grieved the informal discipline administered, but after three years
decided to abandon the matter.
[6]
On March
18, 2010, subsequent to the Supreme Court of Canada’s decision in McNeil cited
above, part 20.10 of the RCMP Operations Manual and implementation and operations
procedure particular to “J” and “L” divisions on RCMP Employee Misconduct
Disclosure (the Policy) was adopted.
[7]
The
policy sets out how the RCMP intends to comply with its obligations under McNeil.
[8]
The
process, as provided for by the Policy, was applied as follows in the Applicant’s
case:
i)
a copy of his discipline file was obtained from Ottawa
and reviewed
ii)
the “McNeil Compliance Committee” met and decided whether the disciplinary
incidents were relevant or not in the Applicant’s case.
iii)
Since the Committee found that the disciplinary incidents were relevant, a copy
of a draft disclosure sheet was prepared and sent to the Applicant for review
and comment.
iv)
the Applicant objected to the proposed disclosure and provided comments.
v)
further to the Applicant’s comments the document was modified extensively and
then finalized.
vi)
the result of the process is a systematic disclosure to the PPSC of the two
incidents that occurred in 2001, in all cases where the Applicant may be called
as a witness. The Applicant’s comments and objections are always included in
the Court package. In each such instance the Applicant receives prior notice
that his McNeil disclosures are part of the Court package.
vii)
the crown attorney receives the Mc Neil disclosure package and then makes a
determination after consideration of the facts of the case, whether the
applicant’s disclosures are relevant or not and should they be disclosed to the
defendant’s attorney. (See page 17 of the Respondents’ motion record on the
motion to strike)
[9]
On November
29, 2011, Staff Sergeant Jamie George, District Commander, “L” Division
informed the Applicant that the RCMP was forwarding his discipline records to
the PPSC in regards to first party disclosure to an accused in a criminal
matter where the Applicant was involved as an investigating Officer.
[10]
The
criminal matter involves charges of possession of cocaine and possession of
cocaine for the purposes of trafficking against the accused, Wayne Warren
Matheson.
[11]
The
Applicant was informed that disclosure is mandatory according to the Policy.
[12]
The
Applicant objected to the release of his discipline records as not being
required as part of the McNeil package and asserted that the RCMP, by
virtue of its Policy, has committed an error of jurisdiction and an error in
law in mandating the disclosure of his discipline records to PPSC, as the
RCMP’s policy fails to properly consider McNeil and determine what
discipline should be disclosed and when it should be disclosed.
[13]
The
Applicant filed his Application for judicial review of the RCMP’s decision to
disclose his McNeil package on December 1, 2011.
[14]
The Applicant sought,
amongst others, a permanent order enjoining and restraining the RCMP from
disclosing the Applicant’s record to the PPSC.
[15]
The
Respondents filed a motion to strike, under rule 221(1) of the Federal
Courts Rules, SOR/98-106, on the basis that this Court does not have
jurisdiction to review the RCMP’s decision to provide the PPSC with the
Applicant’s disciplinary record.
[16]
The
hearing date on the motion to strike was initially set for February 15, 2012
and an order was issued by Justice Beaudry to the PPSC not to disclose the
Applicant’s record.
[17]
On January
25, 2012, the Applicant’s counsel confirmed to the Court that Applicant was no
longer pursuing injunctive relief (see Mr. Justice Barnes’ direction at page 12
of the Respondents’ motion record on the motion to strike).
[18]
On January
27, 2012, the Court issued a direction in which it noted that the Applicant had
withdrawn his request for injunctive relief (see Mr. Justice Barnes’ direction
at page 12 of the Respondents’ motion record on the motion to strike).
[19]
After
several orders of this Court, Prothonotary Morneau finally set a hearing date
for both the motion to strike and the application for leave.
[20]
In
the interim, the PPSC disclosed the Applicant’s disciplinary information to Mr.
Matheson’s counsel on February 15, 2012, in view of Applicant’s decision to
withdraw his request for injunctive relief.
[21]
At
the onset, the Court informed the parties that it would hear them on both the
motion to strike and the underlying application.
[22]
The
Court also allowed the introduction in the record of Jill Thompson’s affidavit
dated February 14, 2012.
III. Issues
[23]
This
case raises the following issues:
1. Does the
Federal Court have jurisdiction to judicially review the RCMP’s determination
regarding what should be disclosed to the PPSC in a criminal matter in order to
meet its constitutional and common law obligations? If it has, should it decline
to hear the matter?
2. Is the
application for judicial review moot further to the disclosure of February 15,
2012?
3. Did the RCMP
commit an error in law in applying its McNeil disclosure Policy to the
Applicant?
IV. Parties’
submissions
A. Applicant’s
submissions
[24]
The
applicant submits that when the RCMP instituted the McNeil Committee and
that committee conducted its assessment, it was acting pursuant to the Royal
Canadian Mounted Police Act, RSC, 1985, c R-10 and the regulations
and policies that flow from the authority there under of the Commissioner to
administer the Force.
[25]
The
RCMP remains a federal institution at all times (see Société des Acadiens et
Acadiennes du Nouveau-Brunswick Inc v Canada, [2008] 1 S.C.R. 383 at para
14).
[26]
The
Applicant claims that the characterization that the present case is a policing
matter ought to be rejected; this is an employment administrative law case
infused with legitimate rights and privacy matters.
[27]
The
issue according to the Applicant, relates to how the Commissioner applies its
internal employment/administrative policies to the vetting of spent
disciplinary records and how the PPSC decides, in its own exclusive assessment,
what to disclose or not.
[28]
The
relevant policy utilized by the Commissioner at issue is found in Part 20.1 of
the RCMP Operations Manual, Section 10, and is entitled “RCMP Employee
Misconduct Disclosure”. The RCMP policy on member discipline (page 56 of
Respondents’ motion record on the motion to strike) is given a ‘Short Title’ “Commissioner’s
Standing Orders (Disciplinary Action)”. Subsections 2(2) and 21(2) of the Royal
Canadian Mounted Police Act, RSC, 1985, c R-10 provide as follows:
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Commissioner’s
Standing Orders
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Consignes du commissaire
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2(2) The
rules made by the Commissioner under any provision of this Act empowering the
Commissioner to make rules shall be known as Commissioner’s standing orders.
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2(2) Les règles à caractère permanent que le
commissaire établit en vertu de la présente loi sont appelées consignes du
commissaire.
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Rules
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Règles
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21(2) Subject to this Act and the regulations, the
Commissioner may make rules
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21(2) Sous
réserve des autres dispositions de la présente loi et de ses règlements, le
commissaire peut établir des règles :
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(a) respecting the administrative discharge
of members; and
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a) concernant le
renvoi, par mesure administrative, des membres;
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(b) for the organization, training,
conduct, performance of duties, discipline, efficiency, administration or
good government of the Force.
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b) sur l’organisation, la formation, la conduite, l’exercice
des fonctions, la discipline, l’efficacité et la bonne administration de la
Gendarmerie.
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[29]
Under
any reasonable construction of the RCMP Act, the Operations Manual and the
Misconduct Disclosure protocols originate from the authority of the
Commissioner as set out above according to the Applicant.
[30]
The
Applicant further claims that the following cases relied on by the Respondents
are distinguishable in that one relates to political involvement in the
investigative actions of police officers and the other why the work of police
officers investigating criminal activity must be kept separate from the
influence of prosecution (see Ochapowace First Nation (Indian Band No 71) v
Canada (Attorney General), 2009 FCA 124 [Ochapowace First Nation];
and Canada Royal Canadian Mounted Police) v Canada (Attorney General)
(FC), 2007 FC 564).
[31]
The
Applicant alleges that there are no authorities to support the proposition that
the creation by the Commissioner of policies and procedures to assist in
meeting the disclosure obligations does not give rise to administrative law
issues.
[32]
The
Applicant also argues that he is placed in an untenable position since a senior
Federal Crown Prosecutor has determined, after speaking with other Crown Counsel,
that the Applicant’s disciplinary record is indeed relevant to any accused
against whom he would be testifying. This assessment could signify that he
could be barred from testifying indefinitely.
[33]
The
Applicant concludes that this decision is arbitrary and contrary to the McNeil
principles, which are more limitative in scope.
B. Respondents’
submissions
[34]
The
Respondents brought forth the motion to strike on the following grounds:
a.
The
RCMP, when fulfilling its common law and constitutional law obligations, is not
acting as a federal board, commission or other tribunal as defined in section 2
of the Federal Court Act. Therefore, it cannot be subject to judicial
review.
b.
The
Federal Court does not have jurisdiction to judicially review the RCMP’s
disclosure of information regarding the Applicant’s disciplinary record to the
PPSC because that information was provided in fulfillment of the RCMP’s
disclosure obligations in criminal procedures.
c.
The
Federal Court, being a statutory court, it has no inherent jurisdiction to
intervene in criminal matters.
d.
Section
18.1 of the Federal Courts Act must provide the authority for an
intervention since only a “federal board, commission or other tribunal are
subject to judicial review.
e.
A
federal decision maker can be qualified as a tribunal for some purposes but not
for others.
f.
The
question is therefore according to Respondents whether the RCMP, when making
the decision under review, was acting as a federal board commission or other
commission as defined by section 2 of the Federal Courts Act.
g.
The
disclosure by the RCMP to the PPSC was not made pursuant to an exercise of
jurisdiction or power conferred by or under a federal statute or under an order
made pursuant to a Crown prerogative, but under the RCMP’s obligation to disclose
as set out in the common law and Constitutional law. The jurisprudence of the
Federal Court and the Federal Court of Appeal support this latter proposition.
h.
In
making a McNeil disclosure, the RCMP is exercising its policing function. The
fact that a policy and procedure was developed to oversee the proper exercise
of this obligation does not change the nature of the function being exercised.
V. Analysis
1. Does
the Federal Court have jurisdiction to judicially review the RCMP’s
determination regarding what should be disclosed to the PPSC in a criminal
matter in order to meet its constitutional and common law obligations? If it
has, should it decline to hear the matter?
[35]
Having
reviewed carefully the authorities submitted by both parties and having heard
their representations, the Court believes that in the present circumstances the
application is moot. Therefore, there is no necessity for the Court to proceed
to an in depth analysis of the jurisdictional question raised by the Respondents.
[36]
Nonetheless,
the Court is not convinced that it is the most suitable forum to review the
disclosure of the Applicant’s disciplinary record made by the RCMP and the PPSC
in the Matheson case which is currently before the Prince Edward Island
Provincial Court.
[37]
As discussed
by Justice de Montigny in Ochapowace First nation cited above and
confirmed by the Federal Court of Appeal (2009 FCA 124), and Justice D.
Tremblay-Lamer in Canada (deputy Commissioner of Royal Canadian Mounted
Police) v Canada (Commissioner Royal Canadian Mounted Police) cited above,
the Court should be reluctant to intervene in cases involving the police’s
operational discretion.
[38]
In
essence, the Applicant disputes the RCMP’s reading of its obligations under the
McNeil decision. These disclosures always take place in the context of a
criminal proceeding.
[39]
Furthermore,
in the present application, the provincial trial Judge appears to be much
better positioned to weigh whether the Applicant’s McNeil disclosures
were relevant or not in the Matheson case before him, since he can assess their
impact on the accused right to a full defense. These facts are not and will
never be before this Court.
[40]
As
the Court reviews the procedure that was followed in the application of the
policy to the Applicant’s case, there is no breach of procedural fairness to
incite this Court’s intervention. At each step of the process, the Applicant
was allowed to comment. His comments lead to major changes to the scope of the
disclosures. The policy also afforded the Applicant prior notice in all
instances.
[41]
More
importantly, the Court has come to the conclusion that the matter is moot.
2. Is the
application for judicial review moot further to the disclosure of February 15,
2012?
[42]
In Borowski
v Canada (Attorney general), [1989] SCJ No 14,
[1989] 1 S.C.R. 342 at para 15 [Borowski], the Supreme Court of Canada
wrote the following remark on the doctrine of mootness:
[15]
The doctrine of mootness is an aspect of a general policy or practice that a
court may decline to decide a case which raises merely a hypothetical or
abstract question. The general principle applies when the decision of the court
will not have the effect of resolving some controversy which affects or may
affect the rights of the parties. If the decision of the court will have no
practical effect on such rights, the court will decline to decide the case.
This essential ingredient must be present not only when the action or
proceeding is commenced but at the time when the court is called upon to reach
a decision. Accordingly if, subsequent to the initiation of the action or
proceeding, events occur which affect the relationship of the parties so that
no present live controversy exists which affects the rights of the parties, the
case is said to be moot. The general policy or practice is enforced in moot
cases unless the court exercises its discretion to depart from its policy or
practice. The relevant factors relating to the exercise of the court's
discretion are discussed hereinafter.
[43]
The
Court must determine “whether the required tangible and concrete dispute has
disappeared and the issues have become academic” (see Borowski at para
16). If the answer to the first question is affirmative, the Court must then “…
decide if [it] should exercise its discretion to hear the case. The cases do
not always make it clear whether the term "moot" applies to cases
that do not present a concrete controversy… In the interest of clarity … a case
is moot if it fails to meet the "live controversy" test. A court may
nonetheless elect to address a moot issue if the circumstances warrant” (see Borowski
at para 16).
[44]
The
Applicant was initially seeking injunctive relief to prevent the RCMP from
disclosing any information on his disciplinary record. However, the interim
relief was withdrawn by the Applicant (see Direction of Mr. Justice Barnes,
dated January 27, 2012 at para 12 of the Respondents’ motion record on the
motion to strike).
[45]
On February
15, 2012, the PPSC disclosed the Applicant’s disciplinary record to Mr.
Matheson’s counsel.
[46]
The
litigation between the parties has become academic. There is no indication to
show that the Applicant’s request for an order of the Court nullifying the
RCMP’S decision to disclose the Applicant’s disciplinary record would have any
practical effect.
[47]
Having
no live controversy between the parties, the Court dismisses the application.
On the basis of this conclusion, the Court is in no need to address the third
issue.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
This
application for judicial review is dismissed on the basis of mootness;
2.
The
whole with costs against the Applicant.
"André
F.J. Scott"
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