Docket: A-556-14
Citation:
2015 FCA 150
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CORAM:
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STRATAS J.A.
SCOTT J.A.
BOIVIN J.A.
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BETWEEN:
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THE ATTORNEY GENERAL
OF CANADA
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Appellant
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and
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STAFF SERGEANT
WALTER BOOGAARD
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Respondent
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REASONS
FOR JUDGMENT
STRATAS J.A.
[1]
The Attorney General asks us to set aside the
judgment of the Federal Court (per Justice O’Keefe) dated November 21,
2014: 2014 FC 1113.
[2]
For some time, the respondent, a staff sergeant
in the Royal Canadian Mounted Police, has been seeking promotion. He sent
letters to the Commissioner of the RCMP requesting promotion. The Commissioner
replied by way of a letter marked “without prejudice.”
The respondent considered the letter to be a decision rejecting his requests.
He sought judicial review in the Federal Court.
[3]
The Federal Court found that the letter was not
protected by the privilege over negotiation/settlement communications even
though it was marked “without prejudice.” It was
a reviewable decision under the Federal Courts Act, R.S.C. 1985, c. F-7.
[4]
The Federal Court concluded that the
Commissioner’s decision was unreasonable. The Court directed the Commissioner
to do as much as he could to promote the appellant to the rank of inspector.
[5]
The Attorney General appeals the Federal Court’s
decision to this Court. He submits that the “without
prejudice” letter is not a reviewable decision. In the alternative, this
Court should uphold it as a reasonable decision. Finally, in the further
alternative, the Attorney General contests the remedy the Federal Court granted.
[6]
In my view, the Federal Court’s finding that the
letter was not privileged and was a reviewable decision is unassailable. The
Federal Court also properly selected reasonableness as the standard of review
of the decision. However, contrary to the Federal Court, I conclude that the
Commissioner’s decision was reasonable. Therefore, I would allow the appeal
with costs, set aside the judgment of the Federal Court and dismiss the
application for judicial review.
A. Background
facts
[7]
The Federal Court has set out the history and facts giving rise to this matter with
admirable clarity and detail. For the purposes of this appeal, I need only
highlight a few things.
[8]
The main ground for the
Commissioner’s refusal of the respondent’s request to be promoted is an
incident fifteen years ago. While the respondent was on duty, his gun was
stolen by two women, workers in the sex trade.
[9]
Investigators looked thoroughly
into the incident. In the end, an investigation report was prepared. It
describes uncertainty surrounding the circumstances of the theft of the gun,
uncertainty that could not be resolved.
[10]
The uncertainty arises from
the differing accounts of the incident by the respondent and the women:
•
The respondent said the women stole the gun from
his vehicle while he was in a restaurant.
•
The women said they stole the gun from the
respondent’s vehicle while the respondent was in it. One of them was negotiating
a price for sex with the respondent while the other stole the gun.
[11]
The women were interviewed
separately and their accounts of the incident were substantially similar.
Further, the criminal history of the woman who stole the gun suggests that she
did not steal from unoccupied cars but rather from “johns” when inside their cars. The women’s account of the
incident could not be dismissed.
[12]
The respondent was charged
with conducting himself in a disgraceful manner that brings discredit on the
RCMP contrary to subsection 39(1) of the Royal Canadian Mounted Police
Regulations, S.O.R./88-361. Ultimately, this disciplinary offence proceeded
on an agreed statement of facts that left out any reference to the incident
with the women. The respondent admitted that it was disgraceful for him to
leave his firearm unattended in his car. The adjudication board reprimanded him
and ordered him to forfeit five days’ pay.
[13]
The adjudication board did
not decide whether the respondent, while on duty, was negotiating with the women
for sex. It never had that issue before it. The agreed statement said nothing
about it. The investigation report was never placed before the board.
[14]
All we know is that before
the hearing the prosecutor considered the “matter concerning the prostitutes” and “discounted” it: Appeal Book, page 113. It is unclear why.
The investigation report refers to “[the women’s] availability as witnesses” as being “less than certain”
but there is nothing in the record that confirms this to be the reason: Appeal
Book, page 216. The investigation report remained in the files, its uncertainty
unresolved.
[15]
From the time of the
incident to today, some fifteen years, the respondent has been promoted within
the non-commissioned ranks. His record has been excellent and beyond reproach.
[16]
However, the respondent has
never been promoted out of the non-commissioned ranks. In 2005 and again in
2009, the respondent participated in and passed the officer Candidate Program.
He then placed on the list of those eligible for promotion. Both times, his
eligibility expired without him receiving a commission as an officer: Reasons
of the Federal Court, paragraphs 8-9. It turns out that a Superintendent told the
Director administering promotions that “there may have been more to the disciplinary matter” than that disclosed by the decision and record:
Reasons of the Federal Court, paragraph 10. The respondent discovered this from
an access to information request.
[17]
Proceedings concerning this have
ensued and have given rise to grievances brought by the respondent. The respondent
contends that he has been the victim of workplace harassment by the spreading
of gossip about the incident. The grievance process is ongoing.
B. The
specific facts triggering this matter
[18]
By 2011, the respondent had
successfully completed the officer candidate program for a second time. He was
restored to the list of candidates eligible for promotion. Most approvals for
the promotion had been secured.
[19]
In the end, the file was
sent to the Commissioner. He was to consider whether to recommend to the
Governor in Council that the respondent should be promoted to the position of
inspector in Saskatchewan.
[20]
During his consideration of
the file, the Commissioner viewed a copy of the investigation report. He was
concerned and discussed it with the Deputy Commissioner. The Deputy
Commissioner met with the respondent and discussed it with him. He gave a copy
of the investigation report to the respondent and asked questions about it,
noting the inconsistencies in the accounts of the respondent and the women. The
respondent answered the questions without objection.
[21]
The Deputy Commissioner was
not satisfied by the respondent’s answers and so he withdrew his support for the
respondent’s promotion. As the Deputy Commissioner’s support is required for
promotion, the respondent was no longer eligible for the Saskatchewan position.
Later, the respondent was removed from a list of candidates generally eligible
for promotion. The respondent has filed two grievances against the Deputy
Commissioner for his actions.
[22]
Following success on one grievance
and favourable comments received in a judicial review of another grievance
decision (see Boogaard v. Canada (Attorney General), 2013 FC 267),
counsel for the respondent wrote the Commissioner, asking his client to be
promoted. A couple of months later, in September 2013, the respondent sent further
letters asking for promotion.
[23]
On September 13, 2013, the
Commissioner sent the “without
prejudice” letter to counsel
for the respondent rejecting his request for promotion. The respondent
considered this to be a reviewable decision. So he applied to the Federal Court
for an order quashing the Commissioner’s decision and directing the
Commissioner to promote him to the rank of inspector, retroactive to 2005.
C. A
preliminary objection: was the Commissioner’s “without
prejudice” letter covered by negotiation/settlement privilege and, thus,
not a reviewable decision?
[24]
Both in the Federal Court
and in this Court, the Attorney General submits that the Commissioner’s letter
was covered by negotiation/settlement privilege and was not a “decision” that could be reviewed under the Federal Courts Act,
above.
[25]
Appropriately, the Federal
Court dealt with this preliminary objection to judicial review first: see
generally Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA
139 at paragraphs 27-30. If upheld, the preliminary objection would bring the
judicial review to an early end.
[26]
But the Federal Court did
not uphold the objection. It ruled that the Commissioner’s letter was a
decision that rejected the respondent’s request for promotion. In the course of
its ruling, the Federal Court found that the letter was not covered by
negotiation/settlement privilege. True, it bore the words “without prejudice,” but in the circumstances that was of no
consequence. In reaching these conclusions, the Federal Court identified the
relevant legal principles and closely examined the letter in light of those
principles.
[27]
In this Court, the Attorney
General suggests that the Federal Court misapprehended the relevant legal principles
and mischaracterized the letter. He submits that the letter should have been
kept confidential as a communication sent as part of an attempt to settle
matters. In his view, it cannot qualify as a reviewable decision.
[28]
What is the standard of
review of a decision of the Federal Court on a preliminary objection to
judicial review? It is the appellate standard of review set out in Housen v.
Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The administrative law standard
of review—that set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190—does not apply. In this case, we are reviewing a decision of the
Federal Court about its own ability to proceed with the application, not a
decision of the Federal Court about the acceptability of a decision of an
administrative decision-maker: Wilson v. Atomic Energy of Canada Limited,
2015 FCA 17, 467 N.R. 201 at paragraphs 25-26; Budlakoti, above at
paragraphs 37-38. The administrative law standard of review applies to the former,
not the latter.
[29]
Thus, in order for this
Court to set aside the Federal Court’s finding that the letter was not
privileged and was a decision letter, the Attorney General must persuade us
that the Federal Court either erred on an extricable legal issue or committed
palpable and overriding error.
[30]
The Attorney General has
failed to establish either of these things. The Federal Court identified the
relevant legal principles properly and did not commit palpable and overriding
error when it applied them to the letter.
[31]
Having dismissed the
preliminary objection, the Federal Court could proceed with the judicial
review. It did so. It quashed the Commissioner’s decision and directed the
Commissioner do as much as he can to promote the respondent to the rank of
inspector.
D. Reviewing
the Commissioner’s decision
(1) The
standard of review: reasonableness
[32]
The Federal Court held that it
should review the Commissioner’s decision using the standard of reasonableness.
In this Court, everyone agrees with that.
[33]
I agree that reasonableness
is the standard. The Commissioner’s decision involves fact-based discretion,
with elements of expertise, policy and specialization. More will be said about
this below when discussing the margin of appreciation to which the Commissioner
is entitled. For present purposes, decisions of that sort are presumed to be
subject to reasonableness review: Dunsmuir, above at paragraphs 51 and
53.
[34]
Having found that the
Federal Court selected the appropriate standard of review—here, reasonableness—the
job of this Court on appeal is to determine whether the Federal Court properly
concluded that the Commissioner’s decision was unreasonable. In other words, we
are to step into the shoes of the Federal Court and conduct reasonableness
review ourselves to see if we agree. See generally Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC
36, [2013] 2 S.C.R. 559 at paragraphs 45-47.
[35]
It is instructive to think
of reasonableness review as consisting of a number of analytical steps: Delios
v. Canada (Attorney General), 2015 FCA 117 at paragraphs 26-28.
[36]
First, we are to identify
the precise issue before the administrative decision-maker and the
decision-maker’s legal power to decide it. Then we must consider the range of
acceptability and defensibility or margin of appreciation the decision-maker
enjoys. In some cases, the range or margin is broad, in others narrow: Catalyst
Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5 at paragraphs 17-18
and 23; Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 59;
McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 at paragraphs 37-41. Certain concepts and factors
can assist on this: Canada (Minister of Transport, Infrastructure and
Communities) v. Farwaha, 2014 FCA 56, 455 N.R. 157 at paragraphs
90-99. Finally, having regard to the evidentiary record that was before
the decision-maker and the applicable law, we must decide whether the decision
was within that range or margin. See generally Asad v. Canada (Citizenship and Immigration), 2015 FCA 141 at paragraphs 27-28.
[37]
This is not a formula that
must be followed in all cases. In many cases, the analysis can be conducted in
a loose way. But depending on the nature of the case, counsel arguing a
judicial review or the reviewing court itself might usefully focus on the
particular step or steps in the analysis upon which the case will turn. This is
how I shall proceed.
[38]
The precise issue before the
Commissioner was whether he should recommend the respondent for promotion.
[39]
The parties agree that the
Commissioner’s power to recommend promotions is found in section 5 of the Royal
Canadian Mounted Police Act, R.S.C. 1985, c. R-10. In particular, they
agree that promotions are part of the Commissioner’s “control and management of the Force and all
matters connected therewith”
in subsection 5(1).
[40]
Section 5, as it read at the
times material to this matter, provides as follows:
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5. (1) The Governor in Council may appoint an officer, to be known
as the Commissioner of the Royal Canadian Mounted Police, who, under the
direction of the Minister, has the control and management of the Force and
all matters connected therewith.
(2) The Commissioner may delegate to any member any of the
Commissioner’s powers, duties or functions under this Act, except the power
to delegate under this subsection, the power to make rules under this Act and
the powers, duties or functions under section 32 (in relation to any type of
grievance prescribed pursuant to subsection 33(4)), subsections 42(4) and
43(1), section 45.16, subsection 45.19(5), section 45.26 and subsections
45.46(1) and (2).
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5. (1) Le gouverneur en conseil peut nommer
un officier, appelé commissaire de la Gendarmerie royale du Canada, qui, sous
la direction du ministre, a pleine autorité sur la Gendarmerie et tout ce qui
s’y rapporte.
(2) Le commissaire peut déléguer à tout membre les pouvoirs ou
fonctions que lui attribue la présente loi, à l’exception du pouvoir de
délégation que lui accorde le présent paragraphe, du pouvoir que lui accorde
la présente loi d’établir des règles et des pouvoirs et fonctions visés à
l’article 32 (relativement à toute catégorie de griefs visée dans un
règlement pris en application du paragraphe 33(4)), aux paragraphes 42(4) et
43(1), à l’article 45.16, au paragraphe 45.19(5), à l’article 45.26 et aux
paragraphes 45.46(1) et (2).
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[41]
In my view, the Commissioner
is entitled to a very broad margin of appreciation over his promotion decisions
under subsection 5(1). In this case, there is nothing that would narrow that
margin.
[42]
The statutory words—“control and management of the Force and all
matters connected therewith”—are
very broad indeed. They are unqualified and not made subject to any other
sections in the Act. The power and the responsibility is bestowed upon the
Commissioner personally, and no one else.
[43]
Sometimes statutory words
direct an administrative decision-maker to follow a particular recipe or
restrict the scope of discretion: see, e.g., Canada (Attorney
General) v. Almon Equipment Limited, 2010 FCA 193, [2011]
4 F.C. 203 at paragraph 53. Here there are none.
[44]
Sometimes cases interpreting
statutory words can constrain the decisions an administrative decision-maker
can reasonably reach: Canada (Attorney General) v. Abraham, 2012
FCA 266, 440 N.R. 201; Canada (Attorney
General) v. Canadian Human Rights Commission, 2013 FCA 75, 444 N.R. 120. Here there are none.
[45]
It may be that rulings on
issues by administrative decision-makers under the Act, such as discipline and
grievance bodies, can constrain the Commissioner’s power to “control and [manage] the Force and all
matters connected therewith.”
Or perhaps not. This likely depends on upon the interpretation of the Act,
perhaps against the backdrop of the law of issue estoppel. In this case, though,
we need not decide this. As we shall see in paragraphs 66-72 below, the
discipline and grievance bodies in this case have not resolved the uncertainty
described in the investigation report. Indeed, they have shed no new light on
the conflicting accounts of the respondent and the women.
[46]
In
making promotion decisions under subsection 5(1), the Commissioner must draw
upon his knowledge, experience and expertise concerning the needs of the police
force, the management of policing, and his appreciation of what sort of
individual will best advance the objectives of the police force and fulfil the
public interest.
[47]
An
added dimension is the policing context. Police are part of Canada’s governance. To perform effectively, they require the confidence of the public. To
maintain that confidence, they must discharge—and must be seen to discharge—their
duties in a fair and faultless way. This is all the more so in the case of the
RCMP, a police force of special standing and broad mandate:
The RCMP is a
unique Canadian law enforcement organization. Not only is it our national police force, but it also provides provincial
and municipal policing services in much of the country, as
well as providing police services to international airports and
hundreds of Aboriginal communities. The RCMP provides protective services to
Canadian and foreign dignitaries, security at significant national and
international events in Canada, and border policing. It provides specialized policing services to all police services in Canada, including criminal
intelligence, biological evidence recovery, DNA analysis, fingerprint and
criminal record information, and ballistics identification. The RCMP also runs
the Canadian Firearms Program, the Canadian Police Information Centre, the Canadian Police College, the National Child
Exploitation Coordination Centre, the National Sex Offender Registry, and the
Technological Crime Program. Across Canada, the RCMP enforces a host of federal
laws, including those dealing with commercial crime, counterfeiting, drug
trafficking, organized crime, and terrorism.
(Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, 380 D.L.R. (4th) 1 at paragraph 265 per Rothstein J.
[dissenting, the majority not disagreeing on this point]; see also Alain-Robert
Nadeau, Federal Police Law, 2010 (Toronto: Thomson Canada, 2009) at page xiv [RCMP “under
more scrutiny than ever”].)
[48]
Next is
the nature of the decision in issue here, promotion. Here, the respondent
emphasized the importance of the promotion decision to him. Work is of prime
importance to the individual and promotions result in enhanced satisfaction,
often more potential for achievement and self-fulfilment, and often more pay. The
respondent also noted that many
of his former peers and, now, many junior to him have already been promoted.
[49]
Without
doubt, the respondent has a strong personal interest in promotion. Nothing in
these reasons should be taken to minimize that. And in certain circumstances,
decisions of strong import to individuals can make the reviewing court more
vigilant in its enforcement of rule of law standards and, thus, can narrow the
margin of appreciation to be afforded to the decision-maker: Farwaha,
above at paragraph 92. For example, administrative decisions that affect the
liberty interests of individuals call for strict scrutiny: Walchuk v. Canada (Justice), 2015 FCA 85 at paragraphs
33 and 56; Erasmo v. Canada (Attorney General), 2015 FCA 129.
[50]
However,
the personal importance of the decision to the affected individual must be
viewed objectively and in context, especially in light of the nature of the
decision under review. The nature of the decision is an important factor in
assessing the intensity of review and, thus, deserves much attention in the
analysis.
[51]
While
in this case the promotion is of great importance to the respondent, normally
we do not think of people having a “right” to a promotion. Often in promotion decisions, only a few
win, many more lose, and the difference between winning and losing can
legitimately turn upon fine things, sometimes subjective or subtle things. For
example, usually we describe people who have been promoted as “deserving” or “lucky.” We do not say that people have been promoted because the
employer was legally forced to do it.
[52]
Further,
a promotion decision, such as the one in this case, is not a simple one,
arrived at by processing information objectively and logically against fixed,
legal criteria. Rather, it is a complex, multifaceted decision involving sensitive
weighings of information, impressions and indications using criteria that may
shift and be weighed differently from time to time depending upon the changing
and evolving needs and priorities of the organization. What are the needs and
priorities of the organization, both now and in the future, perhaps years
later? What is the nature of the position the applicant seeks? Does the
applicant have the skills, judgment, experience, reliability, integrity,
character and personality to carry out the responsibilities of the position and
supervise others? Does the applicant exemplify the values and culture of the
organization? How does the applicant compare to others who have previously been
promoted and others who now seek promotion? How will others react? The
questions could go on and on.
[53]
In finding that the
Commissioner is entitled to a very broad margin of appreciation in this case, I
do not suggest for a moment that he is anything close to immune from review.
His discretion is not absolute or untrammelled. Even the broadest grant of
statutory power must be exercised in good faith, in accordance with the
purposes of the provision, the governing statute and the Constitution:
In public
regulation of this sort there is no such thing as absolute and untrammelled
“discretion”, that is that action can be taken on any ground or for any reason
that can be suggested to the mind of the administrator; no legislative Act can,
without express language, be taken to contemplate an unlimited arbitrary power
exercisable for any purpose, however capricious or irrelevant, regardless of
the nature or purpose of the statute. Fraud and corruption in the Commission
may not be mentioned in such statutes but they are always implied as
exceptions. “Discretion” necessarily implies good faith in discharging public
duty; there is always a perspective within which a statute is intended to
operate; and any clear departure from its lines or objects is just as
objectionable as fraud or corruption.
(Roncarelli v. Duplessis, [1959]
S.C.R. 121 at page 140, 16 D.L.R. (2d) 689.)
(2) Applying
the reasonableness standard in this case
[54]
In this case, I conclude
that the Commissioner’s decision is reasonable. It was within his margin of
appreciation under subsection 5(1) of the Act. It was within the range of
acceptable and defensible outcomes on the facts and the law.
[55]
The Commissioner had before
him, among other things, the respondent’s excellent record over the last
fifteen years, the investigation report from the incident fifteen years ago,
and the results of the Deputy Commissioner’s meeting with the respondent
concerning the investigation report.
[56]
The respondent concedes that
the investigation report was properly before the Commissioner. The report is
key. It describes an unresolved conflict over what happened during the
incident, pitting the respondent’s word against the word of the two women. This
creates a cloud of uncertainty over the respondent. Normally over time, with
years of good performance, such a cloud might dissipate. But in light of the Deputy
Commissioner’s meeting with the respondent and the Deputy Commissioner’s lack
of satisfaction with the respondent’s answers, it is probably fair to say that
the cloud remained in place and perhaps even thickened: Appeal Book, page 202.
[57]
When the Commissioner wrote
his “without prejudice” letter, he had this cloud before him and was
well-aware of it: Appeal Book, pages 202 and 205. But he also had before him
information about the respondent’s overall performance throughout his career.
The Commissioner had to weigh these things and decide whether he should accept
the respondent’s request that he be promoted. He decided to reject it.
[58]
In his reasons, the
Commissioner referred to the cloud. He mentioned that the “full nature of the events” surrounding the incident was not considered in
the disciplinary proceedings. He noted that an agreed statement of facts filed
in those proceedings was “silent” on the cloud.
[59]
The Commissioner then
charged himself as to the standard he must apply in deciding upon the respondent’s
request for promotion:
A commissioned
appointment within the Force requires that I exercise the utmost care at
ensuring that candidates possess and model the core values of the RCMP, namely
Honesty, Integrity, Accountability,… see my letterhead [sic].
[60]
Within the RCMP, these terms
have a particular, well-understood meaning: Appeal Book, pages 204-205. The
Commissioner was incorporating by reference that meaning.
[61]
Applying this, the
Commissioner was not persuaded that the respondent should be promoted:
It is my view,
based on my understanding of the full nature of the events surrounding S/Sgt/
Boogaard that he does not meet the standard I would expect of a commissioned
officer in the Mounted Police.
The “full nature of the events” surrounding the respondent is a reference to
the cloud.
[62]
As can be seen from
his reasons, the Commissioner drew upon his factual
appreciation and his expertise and experience in managing a police force, which
is the broad power given to him under subsection 5(1) of the Act. He relied upon subjective
considerations, wide policies concerning what constitutes a suitable candidate
for promotion, and the larger interests of his police force—matters consistent
with the purposes of subsection 5(1) and the Act. He kept front of mind the need
for “utmost care” in “ensuring that candidates possess and model the core values of the
RCMP.” These
are all matters outside of the ken of the courts, considerations well within
the Commissioner’s margin of appreciation.
[63]
On this evidentiary record,
the Commissioner was entitled to find as a fact that a cloud still exists over
the respondent stemming from the unresolved issues in the investigation report
and the respondent’s answers to the Deputy Commissioner during the meeting. The
opacity of that cloud and whether it is outweighed by the respondent’s overall
performance record are matters of judgment for the Commissioner. Given the very
broad margin of appreciation we must afford the Commissioner in this case, I
cannot second-guess the Commissioner on these matters.
[64]
It is true that the
Commissioner could have placed greater weight upon the respondent’s overall
performance record and could have reached a different conclusion. But reviewing
courts conducting reasonableness review do not reweigh the evidence before the
administrative decision-maker. This is particularly the case where, as here,
the margin of appreciation that must be afforded to the decision-maker is very
broad.
[65]
The respondent submitted
that, despite the foregoing, the Commissioner’s decision was unreasonable. He
offered several submissions.
– I –
[66]
The respondent submits that
by the time of the Commissioner’s decision, the cloud over him had dissipated.
The grievance proceedings and the actions of the prosecuting officer in the
disciplinary matter resolved much of the uncertainty disclosed in the
investigation report about the incident with the women. He adds that the
adjudication board did not find that he was bargaining with the women.
[67]
The respondent’s submission
echoes one he made to the Commissioner. In one of his letters to the
Commissioner, he asserted that the prosecutor in the disciplinary proceedings “expressly considered [the] allegations…and
dismissed them as unfounded without even putting them before an RCMP
Adjudication Board”: Appeal
Book at page 193.
[68]
The Federal Court accepted
this submission. It seems to have regarded the operation of the disciplinary
process under the Act as fettering the Commissioner’s power to promote. It
found that the “appropriate
officer [the prosecutor in the disciplinary proceedings] and the adjudication
board already decided what happened on that day in 2000,” the day of the incident (at paragraph 78). For
good measure, the Federal Court added that the Commissioner had no business
revisiting the incident and substituting his judgment for that of those
involved in the disciplinary proceedings (at paragraph 78). As a result, the
Commissioner could not circumvent the disciplinary proceedings (at paragraph
80).
[69]
On this, I disagree with
both the respondent and the Federal Court. The Commissioner was entitled to
continue to have regard to all information concerning the respondent, including
the investigation report and the respondent’s meeting with the Deputy
Commissioner.
[70]
I do not agree that the
Commissioner should have found that earlier proceedings in this matter have
resolved the uncertainty regarding what happened between the respondent and the
women. In fact, on this record, the Commissioner could not have so found:
•
Earlier grievance proceedings have considered
the unacceptable spreading in the workplace of gossip—conduct constituting “workplace harassment”—about the incident but have not
commented on the incident itself.
•
The disciplinary proceedings did not deal with
the issue at all. In his reasons, the Commissioner noted that they proceeded on
the basis of an agreed statement of fact that did not resolve the uncertainty
regarding what happened between the respondent and the women.
•
The prosecutor in the disciplinary proceedings “discounted” the “matter concerning
the prostitutes” but exactly why is unknown. The investigation report
suggests that the availability or willingness of the women to participate in
the disciplinary proceedings might have been a problem.
[71]
It is true that the women’s
account of the incident in the investigation report has never been proven. But
in making his promotion decision, the Commissioner is not limited to
considering facts that a judge would regard as proven. He is not a judge
determining whether charges are proven or a cause of action made out.
[72]
Instead, he is a public
official sitting at the helm of a police force that needs public confidence to
sustain it, trying to work through the complex calculus of deciding which of
many candidates ought to be recommended for promotion, erring on the side of
caution or, as the Commissioner put it, exercising “utmost care.” In that exercise, he is permitted to rely on
concerns as long as they are articulable and have an air of reality.
– II –
[73]
The respondent points out
that the Commissioner went beyond finding a cloud over the respondent. He found
the women’s account of the incident to be true. The respondent suggests that
this conclusion was not open to the Commissioner on this record.
[74]
On this, the Federal Court
agreed with the respondent. It noted that the Commissioner regarded “the allegations [concerning the incident]
against the [respondent] as if they had actually been proven”: Federal Court’s reasons at paragraph 80.
[75]
I tend to agree. In my view,
it is not possible for the Commissioner to believe the women’s account solely on
the basis of the investigation report. As I have said, the investigation report
describes a conflict between the accounts of the respondent and the women
concerning the incident. It does not resolve that conflict.
[76]
Did the respondent’s
unsatisfactory answers during his meeting with the Deputy Commissioner cause
the Commissioner to believe the women’s account? The Commissioner’s reasons do
not say. But the reasons must be viewed in light of the record, including the evidence
concerning this meeting: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at
paragraph 15. Perhaps the meeting led the Commissioner to make the comments he
did.
[77]
Whether the Commissioner was
too unequivocal in his conclusions about the incident is not the issue before
us. It is not our task to decide what happened in the incident fifteen years
ago.
[78]
Rather, we are to assess
whether the Commissioner reached a decision within his margin of appreciation.
For the reasons set out above, reading the Commissioner’s reasons in light of
the record, the Commissioner had an acceptable and defensible basis on the
facts and the law to deny the respondent promotion.
– III –
[79]
The respondent emphasizes
the harshness of the Commissioner’s decision. After all, the alleged incident
was fifteen years ago. And he suggests that had the issues in the investigation
report been put to him long ago, he might have been able to rebut the concerns.
[80]
To some extent, this last submission
runs counter to the evidence in the record. The respondent had an opportunity
to obtain any available evidence in support of his position when he was charged
in the disciplinary proceedings. And, in any event, the investigation report
shows that the availability of the women to tell their story to anyone,
including the respondent, was questionable at best.
[81]
But harshness is beside the
point. Under reasonableness review, judges cannot interfere on the basis of their
personal views about the harshness or otherwise of the decision. Instead,
judges must restrict themselves to this question: bearing in mind the margin of
appreciation that the decision-maker must be afforded, is the decision
acceptable and defensible on the facts and the law? In assessing acceptability
and defensibility, judges draw upon the legislation and case law bearing on the
problem, the nature of the decision under review, the evidentiary record, judicial
understandings of the rule of law and factors affecting the decision-maker’s
margin of appreciation—not freestanding policies, personal views or emotions
divorced from those considerations. The effects of a decision—including
harshness—may be an indicator or a badge that a decision is unreasonable based
on any of those things: see, e.g., Delios, above at paragraph 27;
Forest Ethics Advocacy Association v. Canada (National Energy Board),
2014 FCA 245, 465 N.R. 152 at paragraph 69;
Farwaha, above at paragraph 100; League for Human Rights of B’Nai Brith
Canada v. Odynsky, 2010 FCA 307, 409 N.R. 298 at
paragraph 87. But by itself, harshness is not relevant.
– IV –
[82]
The respondent also advances
an argument based on bad faith. He submits that “[i]t is unfair and outright abusive for the RCMP to investigate an
allegation against an RCMP member, elect not to proceed with it, but then
secretly store the information away to be held against the member over a decade
later”: Respondent’s Memorandum
of Fact and Law, paragraph 46.
[83]
This overshoots the mark. On
the evidence before us, all that happened was the gathering of information
relevant to the decision whether the respondent should be promoted, including
an investigation report that was on file. There is nothing nefarious or abusive
about this. Indeed, as part of the promotion process the respondent signed a
consent allowing the RCMP to use any information it had on file, including the
investigation report.
– V –
[84]
Finally, in his memorandum of
fact and law the respondent expresses concern about procedural fairness.
However, the respondent seems to advance this as a concern about the
substantive use of the investigation report, a concern I have already
addressed.
[85]
In any event, the respondent
was afforded procedural fairness. The investigation report—the main obstacle to
his promotion—was put to him in the meeting with the Deputy Commissioner. He
had a chance to respond and he did so. If he were caught by surprise, he could
have asked for more time but he did not. The record discloses no request for a
further meeting. The respondent has not suggested that the meeting was itself
procedurally unfair.
[86]
For the foregoing reasons, I
conclude that the Commissioner’s decision was reasonable.
E. Proposed disposition
[87]
Therefore, I would allow the
appeal, set aside the judgment dated November 21, 2014 of the Federal Court in
file T-1548-14 and dismiss the application for judicial review, with costs here
and below.
"David Stratas"
“I agree
A.F. Scott J.A.”
“I agree
Richard Boivin J.A.”
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