Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and La Forest JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Criminal and penal proceedings ‑‑ Right to an independent and impartial tribunal ‑‑ Police superintendent conducting hearing of officer charged with major service offences ‑‑ Whether or not s. 11 of Charter applicable in circumstances ‑‑ If so, whether or not proceedings inconsistent with s. 11 ‑‑ If inconsistent, whether or not regulations justifiable under s. 1 ‑‑ Canadian Charter of Rights and Freedoms, s. 11(d) ‑‑ Regulation 791, R.R.O. 1980, Code of Offences, s. 1(a)(iv), (c)(x).
Appellant was charged with two major offences under the Code of Offences under the Police Act. When the proceeding came before the designated presiding officer, appellant's counsel objected that the tribunal was not "independent and impartial" as required by s. 11( d ) of the Charter . The presiding officer ruled against the objection and the Divisional Court dismissed an application for judicial review that sought an order prohibiting any further proceedings. An appeal to the Ontario Court of Appeal was dismissed. Constitutional questions before the Court queried (1) whether s. 11( d ) of the Charter applied to police disciplinary proceedings under the Code of Offences and if so (2) whether or not the Code of Offences was inconsistent with the Charter , and if inconsistent, whether the regulation was justifiable under s. 1 of the Charter .
Held: The appeal should be dismissed; the first constitutional question should be answered in the negative.
For the reasons given in R. v. Wigglesworth, [1987] 2 S.C.R. 541, s. 11 does not apply to police disciplinary proceedings under Regulation 791, R.R.O. 1980. The disciplinary proceedings in this case were neither criminal in nature nor did they involve penal consequences. Unlike Wigglesworth, the appellant was not subject to the possibility of imprisonment under the Police Act.
Cases Cited
Followed: R. v. Wigglesworth, [1987] 2 S.C.R. 541; Trimm v. Durham Regional Police, [1987] 2 S.C.R. 582; Trumbley and Pugh v. Metropolitan Toronto Police, [1987] 2 S.C.R. 577.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , s. 11 ( d ) .
Police Act, R.S.O. 1980, c. 381.
Regulation 791, R.R.O. 1980, s. 18(1), Code of Offences, s. 1(a)(iv), (c)(x).
APPEAL from a judgment of the Ontario Court of Appeal (1986), 55 O.R. (2d) 570, 29 D.L.R. (4th) 557, 15 O.A.C. 279, dismissing an appeal from a judgment of the Ontario Divisional Court, dismissing an application for judicial review. Appeal dismissed; the first constitutional question should be answered in the negative.
Barry Chercover and Lewis Gottheil, for the appellant.
R. M. Parker, Q.C., and M. S. Watson, for the respondents.
Julius Isaac, Q.C., for the intervener the Attorney General of Canada.
Dennis W. Brown, Q.C., and Michael W. Bader, for the intervener the Attorney General for Ontario.
Yves de Montigny and Françoise Saint‑Martin, for the intervener the Attorney General of Quebec.
Grant Garneau, for the intervener the Attorney General for New Brunswick.
The judgment of the Court was delivered by
1. Wilson J.‑‑Constable Burnham at all material times was a member of the Metropolitan Toronto Police Force. He was charged with "discreditable conduct" under the Police Act regulation (Reg. 791, R.R.O. 1980) for wilfully or negligently making a false complaint against a member of the police force contrary to s. 1(a)(iv) of the Code of Offences. The offence was designated as a major offence. He was also charged with neglect of duty contrary to s. 1(c)(x) of the Code for being absent from duty without leave. This was also designated as a major offence.
2. The proceeding came before the designated presiding officer, Superintendent Robert Lynn. Counsel for the appellant objected that the tribunal was not "independent and impartial" as required by s. 11( d ) of the Charter . Superintendent Lynn ruled against him on this objection. The appellant then applied to the Divisional Court for judicial review seeking an order prohibiting the Chief of Police, Superintendent Lynn and the Metropolitan Toronto Board of Commissioners of Police from taking any further proceedings in the matter other than the referral of the matter to a judge under s. 18(1) of Regulation 791, R.R.O. 1980. The Divisional Court dismissed the application "for the reasons given in Trumbley and Pugh v. Fleming by this Court on September 7, 1984".
3. The appeal to the Ontario Court of Appeal was dismissed: (1986), 55 O.R. (2d) 570. Morden J.A. for the Court examined the wording of s. 11 and noted that it is replete with criminal law terminology. He also examined the legislative history of s. 11, the marginal note to s. 11 and the authorities on the issue. He concluded (at p. 583) that "`offence' means an offence which is prosecuted in a criminal or penal proceeding". At page 589 he stated:
In my view, a Police Act discipline proceeding is not a criminal or penal proceeding within the purview of s. 11. The most serious consequence that can befall a police officer in such proceedings is the loss of his or her position and, while I do not minimize the seriousness of this consequence, it is a civil consequence and not punishment of a criminal nature. A police discipline matter is a purely administrative internal process. Its most serious possible consequence makes it analogous to a discipline matter in ordinary employer‑employee relationships, even though the procedure governing it is clearly more formal. The basic object of dismissing an employee is not to punish him or her in the usual sense of this word (to deter or reform or, possibly, to exact some form of modern retribution) but rather, to rid the employer of the burden of an employee who has shown that he or she is not fit to remain an employee.
Leave to Appeal was granted by this Court on November 27, 1986.
4. The following constitutional questions were stated by this Court:
1. Does section 11(d) of the Canadian Charter of Rights and Freedoms (hereinafter referred to as the "Charter ") apply to police disciplinary proceedings under Regulation 791, R.R.O. 1980 made under s. 74(1) of the Police Act, R.S.O. 1980, c. 381 as amended?
2. If section 11(d) of the Charter does apply to these proceedings, is Regulation 791, R.R.O. 1980 inconsis‑ tent with it, and, if so, can the Regulation be justified under s. 1 of the Charter ?
5. The applicable statutory provisions have been set out in the related case of Trimm v. Durham Regional Police, [1987] 2 S.C.R. 582. For the reasons given in R. v. Wigglesworth, [1987] 2 S.C.R. 541, s. 11 does not apply to police disciplinary proceedings under Regulation 791, R.R.O. 1980. The disciplinary proceedings in this case, which are identical to those employed in the related cases of Trimm v. Durham Regional Police and Trumbley and Pugh v. Metropolitan Toronto Police, [1987] 2 S.C.R. 577, are neither criminal in nature nor do they involve penal consequences. Unlike Wigglesworth, the appellant is not subject to the possibility of imprisonment under the Police Act, R.S.O. 1980, c. 381. I would therefore answer the first constitutional question in the negative. Having regard to my answer to question 1 it is unnecessary to consider question 2.
6. I would dismiss the appeal.
Appeal dismissed; the first constitutional question should be answered in the negative.
Solicitors for the appellant: MacLean, Chercover, Toronto.
Solicitor for the respondents: A. P. G. Joy, Toronto.
Solicitor for the intervener the Attorney General of Canada: The Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.
Solicitor for the intervener the Attorney General of Quebec: The Attorney General of Quebec, Ste‑Foy.
Solicitor for the intervener the Attorney General for New Brunswick: The Attorney General for New Brunswick, Fredericton.
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