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)(i).
Constables
Trumbley and Pugh were charged with a major service offence and conduct of
hearing was designated to a staff inspector. Application for judicial review,
with respect to certain procedural and evidentiary ruling, was made to the
Divisional Court and dismissed. The Court held, without deciding the issue of
the applicability of s. 11 of the Charter to police disciplinary
proceedings, that there was no breach of s. 11 (d) and that the police
disciplinary tribunal did not lack independence and impartiality. The Court of
Appeal upheld that decision. The 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: Trimm
v. Durham Regional Police, [1987] 2 S.C.R. 582; R. v. Wigglesworth,
[1987] 2 S.C.R. 541; Burnham v. Metropolitan Toronto Police, [1987] 2
S.C.R. 572.
Statutes
and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 11 (d).
Police Act, R.S.O. 1980, c. 381, s. 74(1).
Regulation 791, R.R.O. 1980, Code of Offences, s.
1(a)(i).
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 (1984), 5 O.A.C. 368, dismissing an application for
judicial review. Appeal dismissed; the first constitutional question should be
answered in the negative.
E.
G. Spong and D. A. Quirt, 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.‑‑Constables
Trumbley and Pugh were at all material times members of the Metropolitan
Toronto Police Force. Each was charged with "discreditable conduct"
under s. 1(a)(i) of the Code of Offences, Reg. 791, R.R.O. 1980
(Schedule). The particulars include allegations that they had sexual
intercourse with a named woman in a "scout car". The offence was designated
as a major offence. John W. Ackroyd, the Chief of Police, designated
Superintendent Robert Fleming to hold the hearing. Staff Inspector John Addison
was designated by the Chief of Police under s. 13 of the regulation to
"have conduct of the hearing".
2. The
two constables applied to the Divisional Court for judicial review of certain
procedural and evidential rulings made by Superintendent Fleming during the
hearing. The Divisional Court ruled against the applicants on each of their
submissions and dismissed their application. The Court held, without deciding
the issue of the applicability of s. 11 to police disciplinary proceedings,
that there was no breach of s. 11 (d) of the Charter . The police
disciplinary tribunal did not lack independence and impartiality.
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 Burnham v. Metropolitan
Toronto Police, [1987] 2 S.C.R. 572, 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 Rodney Pugh: Mills & Mills, Toronto.
Solicitor
for the respondents: George H. Rust‑D'Eye, 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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