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, ss. 3 , 5(11) , 6 , 13 ,
16(4) , (9) , (15) , 19(1) , 20(2) , (3) , 24 , Code of Offences.
Appellant
was charged with two major service offences and appeared before the Deputy
Chief of Police for trial. His submission that the manner of proceeding with
these two charges was not in accordance with his rights under s. 11 (d) of
the Charter and in particular with his right to a hearing by an
independent and impartial tribunal was dismissed. The Divisional Court
dismissed an application for judicial review and the Court of Appeal dismissed
an appeal from that judgment. The constitutional questions before this Court
queried (1) whether s. 11 (d) of the Charter applied to police
disciplinary proceedings under Regulation 791, R.R.O. 1980, and if so, (2)
whether or not that regulation was inconsistent with the Charter , and if
so, whether it 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; Burnham v. Metropolitan Toronto
Police, [1987] 2 S.C.R. 572; Trumbley and Pugh v. Metropolitan Toronto
Police, [1987] 2 S.C.R. 577; referred to: Colledge v. Niagara
Regional Police Commission (1983), 40 O.R. (2d) 340.
Statutes
and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 11 (d).
Police Act, R.S.O. 1980, c. 381, s. 74(1)(a).
Regulation 791, R.R.O. 1980, ss. 3, 5(11), 6, 13, 16(4),
(9), (15), 19(1), 20(2), (3), 24, Code of Offences, s. 1.
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 and for
an order of prohibition with respect to the hearing of major police service
offences by the Deputy Chief of Police. Appeal dismissed; the first constitutional
question should be answered in the negative.
Aleksandr
G. Bolotenko, for the appellant.
David
J. D. Sims, Q.C., Alan J. McMackin and Mario Bouchard, 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.‑‑The
appellant is a member of the Durham Regional Police Force. On January 4, 1983
the appellant was served with a charge sheet pursuant to the Police Act,
R.S.O. 1980, c. 381, by the Durham Regional Police Force setting out a charge
of neglect of duty for leaving his assigned patrol area without permission
contrary to s. 1(c)(iii) of the Code of Offences, Reg. 791,
R.R.O. 1980. On the same day the appellant was served with another charge sheet
setting out a charge of insubordination by disobeying a lawful order contrary
to s. 1(b)(ii) of the Code in refusing to walk his beat after being
ordered to do so. Both of these offences were designated as major offences. In
accordance with the charge sheets the appellant appeared before Deputy Chief of
Police Gerald Robinson on January 19, 1983 at which time the proceedings were
adjourned until February 11, 1983. On that date the appellant appeared before
Deputy Chief Robinson and a trial date was set. On April 15, 1983, the date set
for trial, it was submitted by the appellant's counsel that the manner of
proceeding with these two charges against the appellant was not in accordance
with his rights under s. 11 (d) of the Charter and, in particular,
his right to a hearing by an independent and impartial tribunal. This
submission was rejected. The appellant then applied to the Divisional Court for
judicial review, seeking an order prohibiting the presiding officer from
conducting the hearing. This application was dismissed without reasons on
October 15, 1984.
2. The
Court of Appeal for Ontario (per Brooke, Morden and Robins, JJ.A.)
dismissed the appeal on July 2, 1986: (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''. He stated at p. 589:
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.
3. The
following constitutional questions were stated:
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 ?
4. It
will be helpful to describe the nature of the disciplinary proceedings under
the Police Act, R.S.O. 1980, c. 381, and the Regulations enacted
thereunder, in particular Regulation 791, R.R.O. 1980. Section 74(1)(a)
of the Act empowers the Lieutenant‑Governor in Council to make
regulations "for the government of police forces and governing the
conduct, duties, suspension and dismissal of members of police forces".
Regulation 791, entitled "General‑‑Discipline", was
enacted pursuant to this power. Section 3 of that Regulation sets out which
officers of the Force may exercise the duties of the Chief of Police in the
hearing and disposition of charges against members of the Force. Section 6
provides for such an officer (a "designated officer") to consider
allegations made in a complaint against a member of the Force and that officer
may then sign a charge sheet. The charge sheet must specify whether the
particular offence alleged is a major or minor offence (s. 5(11)). The various
offences are set out in s. 1 of the Schedule to the Regulation which reads
(where relevant) as follows:
1. Any chief of police, other police officer or
constable commits an offence against discipline if he is guilty of,
(a) Discreditable
Conduct, that is to say, if he,
(i) acts in a disorderly
manner, or in a manner prejudicial to discipline or likely to
bring discredit upon the reputation of the police force,
(ii) is guilty of
oppressive or tyrannical conduct towards an inferior in rank,
...
(iv) wilfully or
negligently makes any false complaint or statement against any
member of a police force,
...
(vii) is guilty of an
indictable offence or an offence punishable upon
summary conviction under the Criminal Code
(Canada), or
...
(b) Insubordination,
that is to say, if he,
...
(ii) without lawful
excuse, disobeys, omits or neglects to carry out any lawful order;
(c) Neglect
of Duty, that is to say, if he,
(i) without lawful
excuse, neglects or omits promptly and diligently to perform a
duty as a member of the police force,
...
(iii) fails to work in
accordance with orders, or leaves an area, detachment, detail
or other place of duty, without due permission or
sufficient cause,
...
(xi) is improperly
dressed, dirty or untidy in person, clothing or equipment while
on duty;
(d) Deceit,
that is to say, if he,
(i) knowingly makes or
signs a false statement in an official document or book,
...
(e) Breach
of Confidence, that is to say, if he,
(i) divulges any matter
which it is his duty to keep secret,
...
(iii) without proper
authority communicates to the public press or to any
unauthorized person any matter connected with the
police force,
...
(v) makes any anonymous
communication to the chief of police or superior officer
or authority,
...
(f) Corrupt
Practice, that is to say, if he,
(i) takes a bribe,
(ii) fails to account for
or to make a prompt, true return of money or property
received in an official capacity,
...
(g) Unlawful
or Unnecessary Exercise of Authority,
that is to say, if he,
(i) without good and
sufficient cause makes an unlawful or unnecessary arrest,
...
(iii) is uncivil to a
member of the public;
(h) Damage
to Clothing or Equipment, that is to say, if he,
...
(ii) fails to report
waste, loss or damage however caused;
(i) Consuming
Intoxicating Liquor in a Manner Prejudicial
to Duty, that is to say, if he,
(i) while on duty is
unfit for duty through drinking intoxicating liquor, or
...
(j) Lending
Money to a Superior; or
(k) Borrowing
Money from or Accepting a Present from
any Inferior in Rank.
Particular
aspects of the "trial" procedure are set out in s. 13:
13.‑‑(1) A
chief of police may designate a counsel, constable or other police officer who
shall have conduct of the hearing against the person charged and, in the
conduct of the hearing, the person so designated may,
(a) examine and cross‑examine
witnesses;
(b) sum up the evidence in support of
the charge; and
(c)before the final verdict is rendered, at the
direction of or with the consent of the chief of police, withdraw the charge.
(2) The constable or other
police officer designated under subsection (1) shall be of equal rank to or
higher rank than the person charged.
(3) The person charged is
entitled to make his full answer and defence to the charge and, for such
purpose, may examine and cross‑examine witnesses and make representations
on his behalf, either personally or by his counsel or agent.
The
consequences of a finding of guilt in respect of minor and major offences are
set out in ss. 16 and 20. The relevant subsections provide as follows:
16.‑‑ ...
(4) A person found guilty of a
minor offence is liable to,
(a) an admonition; or
(b) forfeiture of leave of days off
not exceeding five days; or
(c) forfeiture of pay not exceeding three
days pay.
20.‑‑ ...
(2) A person found guilty of a
major offence is liable to,
(a) dismissal; or
(b) be required to resign, and in default
of resigning within seven days, to be summarily dismissed from the
force; or
(c) reduction in rank or gradation of rank;
or
(d) forfeiture of leave or days off
not exceeding twenty days; or
(e) forfeiture of pay not exceeding five
days pay; or
(f) a reprimand, which may be imposed in
lieu of or in addition to any other punishment imposed.
Persons
found guilty of major and minor offences may appeal to the Board of Commissioners
of Police or, where there is no such board, to a committee of the municipal
council and from the decisions of those bodies to the Ontario Police
Commission: see ss. 16(9), (15), 19(1), 20(3) and 24. It is apparent from these
provisions that the police force both charges and tries the person charged. It
is this aspect of the process which the appellant attacks under s. 11 (d)
of the Charter . He submits that the Chief of Police or his designated
officer is not "an independent and impartial tribunal" within the
meaning of the section.
5. For
the reasons indicated 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
in Burnham v. Metropolitan Toronto Police, [1987] 2 S.C.R. 572, 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. As was stated by
Eberle J. in Colledge v. Niagara Regional Police Commission (1983), 40
O.R. (2d) 340, at p. 342 (Div. Ct.):
The principal aspects of the proceedings at bar fall
entirely within the ambit of internal disciplinary proceedings inside the
police force. The duty sought to be enforced in the present proceeding is a
duty which arises directly under the code of police conduct laid down in the Police
Act. The matters involved in the proceedings are accordingly matters
essentially of a private nature between the officer and his superiors.
Unlike Wigglesworth,
the appellant is not subject to the possibility of imprisonment under the Police
Act. There are in this case no "true penal consequences". I would
therefore answer the first constitutional question in the negative. Having
regard to my answer to question 1 it 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: Aitchison, Starzynski, Evans & Bolotenko, Oshawa.
Solicitors
for the respondents: Sims Brady & McInerney, Whitby.
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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