Gill v. Canada (Attorney General)

Gill v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2006-09-18
Neutral citation
2006 FC 1106
File numbers
T-1252-04
Decision Content
Date: 20060918
Docket: T-1252-04
Citation: 2006 FC 1106
Toronto, Ontario, September 18, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
CONSTABLE H. S. GILL,
REGIMENTAL NO. 40635
Applicant
and
THE ATTORNEY-GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application for judicial review of a decision by Giuliano Zaccardelli, the Commissioner of the Royal Canadian Mounted Police (RCMP), upholding the decision of the RCMP Adjudication Board which imposed sanctions on the applicant, Constable H. S. Gill, for contraventions of the Code of Conduct as set out in the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361 (the RCMP Regulations).
[2] The applicant sought the following relief in the notice of application:
1. An order directing the Commissioner to set aside the decision of the Adjudication Board dated June 11, 2002;
2. In the alternative, an order setting aside the decision of the Adjudication Board which was upheld by the Commissioner, and in its place, substituting a sanction of ten days’ pay and a formal reprimand as recommended by the External Review Committee on February 13, 2004.
Background
[3] The applicant joined the RCMP on January 3, 1989, and was posted as a general duty investigator for about three years. He was then transferred to the drug section where he worked for about five years. He returned to general duty policing in 1997. At around this time, his marriage was falling apart and he developed an alcohol consumption problem. In January 1999, he was assaulted by his wife, and he filed for divorce and custody of his three children. The stress from his personal problems led to problems at work. In a series of incidents in 2000, he was alleged to have behaved aggressively toward members of the public while carrying out his duties. In the summer of 2000, the applicant was suspended without pay while the RCMP conducted internal investigations.
[4] On May 1, 2001, the commanding officer of the E Division, in her capacity as the appropriate officer designated by the Commissioner, served the applicant with a notice of disciplinary hearing. The notice alleged that the applicant had, on five separate occasions, conducted himself in a disgraceful manner that brings discredit to the Force, contrary to subsection 39(1) of the RCMP Regulations, a provision of the Code of Conduct. The notice set out the particulars of each allegation as follows:
Particulars of Allegation #1
. . .
2. On or about January 8, 2000, in the early morning hours, at a restaurant in Langley, B.C., Cst. GILL put himself on duty by confronting a restaurant patron, Jeremy Erlandsen, concerning a baton that Mr. Erlandsen had in his possession.
3. At the time he confronted Mr. Erlandsen, Cst. GILL was under the influence of alcohol and was discourteous, disrespectful and/or unprofessional towards him, including grabbing Mr. Erlandsen, confiscating the baton, and purporting to detain Mr. Erlandsen without reasonable grounds to do so, thereby exceeding his authority.
4. Later that morning, Members of the Langley detachment including Cst. Jenkins, Cpl. Wilson and Cpl. Bodden dealt with Cst. Gill concerning Mr. Erlandsen’s baton-possession. Cst. GILL was also discourteous, disrespectful and/or unprofessional in his dealings with these members.
Particulars of Allegation #2
. . .
2. On or about March 25, 2000, while on duty in Pitt Meadows, B.C., following the arrest of Ryan Sherbuck, Cst. GILL was discourteous, disrespectful and/or unprofessional towards him, including making unnecessary remarks to taunt Mr. Sherbuck or to cause him to feel threatened.
Particulars of Allegation #3
. . .
2. On or about May 4, 2000, Cst. GILL, during the course of a bar check of Rooster’s Pub in Pitt Meadows, B.C., Cst. GILL arrested Jeremy Ferraro without reasonable grounds for doing so, thereby exceeding his authority.
3. In effecting the arrest, Cst. GILL used force excessive in the circumstances.
Particulars of Allegation #4
. . .
2. On or about May 21, 2000, Cst. GILL effected an arrest upon Randy Strange.
3. After having Mr. Strange in his custody, restrained by handcuffs and secured in the rear of his police vehicle, Cst. GILL assaulted Mr. Strange, including by punching him in the face.
Particulars of Allegation #5
. . .
2. On or about June 2, 2000, while on duty, Cst. GILL intervened, in a landlord-tenant dispute, on behalf of the family friend who was the landlord.
3. Cst. GILL attended at the subject residence, made threatening remarks to Wayne Bettcher, one of the tenants, while grabbing Mr. Bettcher’s shirt. By so doing, Cst. GILL assaulted Mr. Bettcher and was discourteous, disrespectful and/or unprofessional.
[5] On various dates in February, April and June, 2002, the Adjudication Board heard the matter in Vancouver. The applicant admitted to allegation 1 and denied the other allegations. Allegation 5 was withdrawn by the appropriate officer at the hearing.
[6] For allegation 1, the parties submitted an agreed statement of facts, which stated that the applicant, while off-duty, was at a bar with some friends and had consumed four to five beers. At the bar, the applicant met a Mr. Erlandson, who was carrying a baton which he used for his job as a security guard at a local grocery store. The applicant placed himself on duty by displaying his badge and identifying himself as a police officer. The applicant then told Mr. Erlandson that if he did not hand over the baton, he would be arrested. Mr. Erlandson asked a waitress to call police. A member of the Langley detachment arrived and informed the applicant that they had no authority to seize the baton as it was not a prohibited or restricted weapon. The applicant became argumentative and while still under the influence of alcohol, he attempted to challenge the RCMP’s decision not to arrest Mr. Erlandson.
[7] For allegation 2, the evidence was that the applicant and two other constables were dispatched to a drag racing scene in Pitt Meadows. They instructed the crowd, numbering over 100, to disperse. The applicant testified that he saw Sherbuck running away and jumping into a vehicle. The applicant stated that he yelled at Sherbuck to stop. When Sherbuck tried to escape by driving around the applicant, the applicant struck Sherbuck’s car with a flashlight. Sherbuck got out of his car and argued with the applicant. The applicant took Sherbuck’s licence and registration and instructed Sherbuck to get back into his car. Sherbuck complied with this request. He subsequently stepped out of the car, at which point the applicant arrested Sherbuck for obstruction of justice.
[8] Sherbuck provided a different version of the events. He testified that he had put his car in reverse and the applicant walked toward him and hit his car. Sherbuck got out of his car and confronted the applicant about the damage to his vehicle. Sherbuck testified that the applicant grabbed him and choked him, causing the stitches in his mouth to pop out from where his wisdom teeth had just been removed. He testified that the applicant hurt his arm in placing handcuffs on him. There was no dispute that Sherbuck’s arm had been hurt to the point that the applicant decided to take Sherbuck to the hospital.
[9] For allegation 3, the evidence was that Ferraro was at Rooster’s Bar with his friends to have drinks and hang out. At the time, Constables Gill and Topacio were doing a walk-through of the bar. Ferraro testified that he was buzzed from the drinks he had consumed. He observed two uniformed officers standing near the dance floor and he thought they were leering at the women patrons. Ferraro walked past the officers and insulted them with a derogatory remark. Gill reacted by pushing Ferraro onto the floor and placing a choke hold on Ferraro so that he could be turned over onto his stomach, handcuffed and arrested. Ferraro testified that he never pushed or touched the police officer. The charges laid against him for assaulting a police officer were later dropped.
[10] Gill testified that he was standing on the dance floor when he felt himself being shoved from behind and heard a rude comment that was directed at him. He turned around and saw Ferraro, and immediately effected control over Ferraro and put him under arrest for assaulting a police officer. However, Ferraro’s friends, as well as Constable Topacio who was standing next to Gill on the dance floor, testified that they did not see Ferarro push Gill.
[11] For allegation 4, the evidence was that Gill was one of several RCMP members to attend to a complaint about a loud house party. The police asked everyone to leave, but there was little reaction and arrests had to be made. Strange was one of the partygoers. He testified that he was pretty drunk at the time, and he remembers that he was in the rear seat of the police car with his hands cuffed behind his back, when a police officer punched him in the nose, causing bleeding, a sore nose and black eyes. He does not recall resisting in any way. Strange was charged for causing a disturbance and resisting arrest, but these charges were later stayed.
[12] Gill testified that he arrested Strange for causing a disturbance because he was yelling profanities outside the house. There was a struggle as Gill attempted to gain control over Strange. Gill stated that he handcuffed Strange and was opening the rear door of the police vehicle when Strange kicked Gill in the thigh. Gill stated that he dealt with the threat by grabbing Strange by the head and punching him in the face with a closed fist, hard enough that it hurt Gill’s fist. This punch subdued Strange such that Gill was able to put Strange in the rear seat with the other prisoners. Other partygoers and police officers at the scene appeared as witnesses before the Board, but they did not fully corroborate either Gill’s or Strange’s testimony.
The Decisions
1. Decision of the Adjudication Board
[13] By decision rendered June 11, 2002, the Board found that the first four allegations of disgraceful conduct had been established on a balance of probabilities.
[14] Allegation 1 was admitted by the applicant, and the Board was satisfied that the allegation was established.
[15] On allegation 2, the Board found that Sherbuck had embellished his story and that he had not been choked by the applicant. However, the Board found that the applicant had hurt Sherbuck’s arm and damaged his vehicle by striking it with a flashlight, and had used excessive force in arresting Sherbuck.
[16] On allegation 3, the Board did not believe the applicant’s testimony that he had been pushed by Ferraro. Another constable who was standing beside the applicant did not see any sudden movement from behind or any movement or imbalance on the applicant’s part. Ferraro’s friends also testified that they did not see any pushing motion. As no push had taken place, the applicant did not have reasonable grounds to arrest Ferraro. The Board found that the applicant overreacted to the situation, used excessive force in the arrest, and was unprofessional.
[17] On allegation 4, the Board found that before Strange was put into the back of the police car, the applicant had struck Strange in the face even though Strange was highly intoxicated, handcuffed and had no capacity to threaten the applicant’s safety.
[18] The Board concluded that the applicant’s actions in all four allegations amounted to disgraceful conduct and that the allegations were therefore established.
[19] As for the sanctions, the Board decided that the applicant be reprimanded and forfeit ten days’ pay for each of allegations 1 and 2; that he be dismissed from the Force for allegation 3; and that he be directed to resign from the Force within 14 days, failing which he would be dismissed from the Force, for allegation 4. In reaching the decision on these sanctions, the Board considered the applicant’s prior discipline record, his recent performance evaluations which indicated a loss of confidence from his superiors, his apparent lack of remorse for his conduct, the absence of any signs of rehabilitation, and his failure to seek treatment for stress as was advised by doctors.
2. Recommendation of the External Review Committee
[20] The applicant appealed the Board’s decision to the Commissioner of the RCMP, pursuant to subsection 45.14(1) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the RCMP Act).
[21] The Commissioner referred the matter to an External Review Committee (ERC), as required by subsection 45.15(1) of the RCMP Act. The ERC considered the transcript of the hearing before the Board, the exhibits filed at that hearing, the Board’s written decision and the written appeal submissions of the applicant and the appropriate officer.
[22] On February 13, 2004, the ERC recommended that the appeal be allowed in part. With respect to allegations 2 and 4, the ERC found that the Board had exceeded its jurisdiction by relying on facts that were neither described in the particulars to the allegations nor relied upon by the appropriate officer to support the argument that Constable Gill’s conduct was disgraceful. With respect to allegation 3, the ERC found that it was not patently unreasonable for the Board to find that the applicant had no reasonable grounds to make the arrest. However, the ERC found that the sanction imposed for allegation 3 was too harsh, given that the Board’s findings on only two of the four allegations could be supported.
[23] The ERC also found that the Board attributed too much importance to Constable Gill’s disciplinary record, overemphasized failings on his part that it regarded as an indication that he could not be rehabilitated, and disregarded the positive prognosis from two expert witnesses concerning his rehabilitative potential. The ERC stated that the applicant’s performance evaluation reports are just as important to consider as his disciplinary record for the purpose of assessing whether the latest episodes of misconduct are out of character. With the exception of the two most recent reports, the applicant’s performance has always been regarded very highly by his superiors.
[24] The ERC recommended that the appeal of the findings on allegations 2 and 4 be allowed, and the appeal of the finding on allegation 3 be dismissed. In place of the sanction imposed by the Board, the ERC recommended a formal reprimand and a forfeiture of ten days’ pay.
3. Decision of the Commissioner
[25] On May 27, 2004, the Commissioner decided to uphold the Board’s decision and dismiss the applicant’s appeal.
[26] The Commissioner disagreed with the ERC’s recommendations on allegations 2 and 4. The Commissioner found that the statements of particulars met the requirements of subsection 43(6) of the RCMP Act as they contained the place and date of each allegation and were specific enough to allow the applicant to know the case against him and prepare a proper defence. The Commissioner concluded that the particulars properly identified the offence and indicated the conduct that constituted the breach of professional standards.
[27] The Commissioner cited from a finding of the ERC in another case where the ERC had written that the evidence and arguments presented at the hearing should not catch the member by surprise. The ERC also stated that the mere fact that the Board’s reasons for finding the allegation to have been established are different from the particulars should not in and of itself be sufficient grounds for the member to argue on appeal or judicial review that the right to a fair hearing was transgressed.
[28] The Commissioner confirmed the Board’s conclusion that allegations 2 and 4 were established. With respect to allegation 3, the Commissioner agreed with the ERC’s recommendation that this allegation was established. The Commissioner therefore dismissed the applicant’s appeal on allegations 2, 3 and 4.
[29] The Commissioner next considered the appeal of the sanctions. He disagreed with the ERC’s statement that it was as important to consider the applicant’s performance evaluation reports as his disciplinary record. The Commissioner stated that the present case is a disciplinary matter, not a performance matter.
[30] The Commissioner found that the applicant’s conduct shows a pattern of anger and violence that is unacceptable and is a clear violation of the Code of Conduct as well as the Force’s core values of integrity, honesty, professionalism, respect, compassion and accountability. It was emphasized that police officers are persons occupying a position of trust, and have a special role and status in the community which confers upon them elevated levels of power and authority. As such, they are held to a higher standard of conduct than what is expected from a member of the general public. The Commissioner upheld the sanctions that were imposed by the Board, finding that they were more appropriate than the sanctions that were recommended by the ERC.
[31] This is the judicial review of the Commissioner’s decision.
Issues
[32] The applicant submitted the following issues for consideration:
1. With respect to allegations 2 and 4, did the Commissioner err in law by finding that the misconduct was not outside the ambit of the particulars plead and relied upon by the appropriate officer?
2. With respect to allegations 2, 3 and 4, did the Commissioner make findings that were in error, unreasonable, and not supported by the evidence adduced?
3. Did the Commissioner err in imposing sanctions which were too onerous and severe in the overall circumstances, including Gill’s background?
[33] The respondent submitted the following issues for consideration:
1. What is the standard of review of decisions by the Commissioner?
2. Was it patently unreasonable for the Commissioner to find that the allegations were made out on the evidence?
3. Was it patently unreasonable for the Commissioner to accept the Board’s findings of fact and the decision on the sanctions?
Applicant’s Submissions
Standard of Review
[34] The applicant submitted that the question of whether the Board and the Commissioner erred in making adverse findings beyond the ambit of the particulars is a question of law, and the standard of review is correctness.
[35] The applicant submitted that a finding that an allegation has been established and a determination as to sanctions are questions of mixed fact and law, reviewable on a standard of reasonabless simpliciter. The applicant relied on Thériault v. Canada (Royal Canadian Mounted Police), 2004 FC 1506 at paragraphs 18 to 20, citing Stenhouse v. Canada (Attorney General), 2004 FC 375 at paragraphs 20 to 22.
Standard of Proof
[36] The applicant submitted that the evidentiary standard is proof on a balance of probabilities, but where dismissal is a potential outcome, clear and convincing evidence is required.
Allegation 2
[37] It was submitted that the appropriate officer at the hearing clearly focused on the post-arrest choking and verbal taunting of Sherbuck as constituting disgraceful conduct. In its decision, however, the Board found that choking had not occurred and made no finding on the allegation of verbal taunting. The Board instead found that the applicant had no cause to grab Sherbuck, had used excessive force in Sherbuck’s arrest and had damaged his vehicle.
[38] The applicant submitted that the Board and Commissioner were bound to consider whether, as set out in the particulars of allegation 2, “following the arrest of Ryan Sherbuck, Cst. GILL was discourteous, disrespectful and/or unprofessional towards him, including making unnecessary remarks to taunt Mr. Sherbuck or to cause him to feel threatened”. It was submitted that the Board was not simply taking a different view of the evidence on an allegation, but was straying outside the ambit of the charge without notice to the applicant. It was submitted that the Board and the Commissioner erred in law by finding that the applicant was guilty of misconduct which was not plead in the particulars or urged by the appropriate officer (see RCMP Act, subsection 43(6) and Re Golomb and College of Physicians and Surgeons of Ontario (1976), 12 O.R. (2d) 73, 68 D.L.R. (3d) 25 (Ont. Div. Ct.)).
[39] In any event, the applicant submitted that the findings of the Board and the Commissioner on the new charges were not supported by the evidence. It was submitted that use of a flashlight to try to get a car to stop would not be considered disgraceful conduct in the circumstances. As well, it was submitted that Gill was carrying out his duties under the Motor Vehicle Act, R.S.B.C. 1996, c. 318 and the Criminal Code, R.S.C. 1985, c. C-46, and Sherbuck’s failure to stop when requested to do so was an obstruction at law. The applicant submitted that the level of force that he used in placing the handcuffs on Sherbuck was justified given the conduct on the part of Sherbuck in his attempt to flee.
Allegation 3
[40] The applicant submitted that the Board was not in a position to conclude that the intoxicated Ferraro was incapable of pushing Gill. It was submitted that this was speculation on the part of the Board, and that no properly instructed finder of fact could have preferred Ferraro’s evidence to Gill’s evidence which was not contradicted by Constable Topacio who was also on duty. The applicant submitted that he had reasonable and probable grounds to arrest Ferraro and that he did not use excessive force in effecting the arrest.
Allegation 4
[41] The applicant submitted that the Board and the Commissioner strayed outside the ambit of the particulars of allegation 4. The particulars stated that the applicant secured Strange in the rear of the police vehicle and then assaulted Strange including by punching him in the face. However, the Board and the Commissioner accepted the applicant’s version of the events which was that he punched Strange before Strange was put in the back seat.
[42] It was further submitted that a reasonable person would be of the opinion that the striking of Strange for the purpose of effecting control over him as he was struggling to get away and kicking the applicant outside of the car was appropriate conduct.
Sanctions
[43] The applicant submitted that the sanctions for allegations 3 and 4 were too onerous and severe. It was submitted that he has taken substantial steps to rehabilitate himself from his problems with alcohol addiction, and is prepared to take any remedial steps to ensure his continued rehabilitation. It was also submitted that he has in the past made an extraordinary contribution to the Force and to the public. The applicant emphasized that with respect to allegations 3 and 4, there is substantial evidence of provocative behaviour on the part of Ferraro and Strange which should assuage the severity of the appropriate discipline.
Respondent’s Submissions
Standard of Review
[44] The respondent submitted that as this is the judicial review of the decision of the Commissioner, the question is not whether the Court would come to a different conclusion than the Board, rather, it is whether the Commissioner properly exercised his function in conducting an appellate review of the decision of the Board at first instance.
[45] The respondent submitted that the standard of review to be applied to the Commissioner’s findings of fact and sanction is patent unreasonableness (see Gordon v. Canada (Solicitor General), 2003 FC 1250 at paragraphs 19 and 23). It was submitted that the question of whether notice was sufficient to meet the requirements of subsection 43(6) of the RCMP Act is a question of mixed fact and law reviewable on a standard of reasonableness simpliciter.
[46] The respondent submitted that the four factors of the pragmatic and functional approach indicate that the standard of review of patent unreasonableness should be applied to decisions of the Commissioner as to whether there is an adequate factual foundation for establishing an allegation. First, with respect to the nature of review, there is no right of appeal from a decision of the Commissioner, but there is a privative clause protecting the decisions of the Commissioner (see subsection 45.16(7) of the RCMP Act). Second, with respect to the relative experience of the decision maker, the Board and the Commissioner have greater experience relative to the Court in the realities and demands of policing, and in particular, the appropriate use of force when dealing with civilians. The Board is composed of three senior commissioned officers, one of whom must be a law graduate, and the Commissioner is a person of long experience and trusted judgment. Third, with respect to the purpose of the statute, the RCMP Act grants the RCMP and the Commissioner the primary responsibility for developing and maintaining standards of professionalism and discipline within the force. Fourth, with respect to the nature of the question, the question of whether the conduct of a member justifies dismissal is very similar to the decision that a labour arbitrator would make in determining whether there is just cause for dismissal (see Toronto (City of) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77). While labour arbitrators have experience in general labour matters, the Commissioner has experience in the difficulties that police officers face in the execution of their duties on the one hand, and the demands of the force for discipline on the other hand.
[47] In support of these submissions, the respondent relied on the decision in Millard v. Canada (Attorney General) (2000), 253 N.R. 187 (F.C.A.). In Millard, the Federal Court of Appeal considered the functional and pragmatic approach to determine that the standard of review of patent unreasonableness should be applied to a decision of the Commissioner on a grievance under the RCMP Act. The respondent submitted that the grievance procedures are broadly similar to the discipline procedures at issue in the present case.
[48] The respondent submitted that the Stenhouse and Thériault decisions relied on by the applicant are of little assistance because in those two decisions, the Court was not called on to determine the standard of review to be applied to credibility findings or decisions on the appropriate sanctions. In Thériault, for example, the Court considered whether a limitation period had passed, which is a question of mixed fact and law.
Allegation 2
[49] The respondent submitted that a basic principle of natural justice is that the individual affected must be made aware of the case against him so as to allow him to prepare an adequate defence. It was submitted that for disciplinary hearings under the RCMP Act, this general principle has been codified in subsection 43(6), which provides that notice is sufficient if it directs the attention of the member to the “occasion and events indicated in the notice”. It was further submitted that formal allegations of police misconduct ought not to be scrutinized with the same strictness as in criminal law matters (see, for example, Bates v. Canada (Royal Canadian Mounted Police), [1985] F.C.J. No. 811 (T.D.) (QL) and White v. Dartmouth (City of) (1991), 106 N.S.R. (2d) 45 (N.S.S.C.T.D.)).
[50] The respondent submitted that the notice of the hearing, together with the documentary evidence appended to the notice, contained sufficient detail to allow the applicant to understand that allegation 2 concerned the interaction between Sherbuck and the applicant on March 25, 2000. It was submitted that evidence led by the applicant with respect to the use of the flashlight and the arrest of Sherbuck indicated that he was aware of the allegations against him. If the applicant had a concern with the evidence going beyond the scope of the particulars, he ought to have objected to such questions on the grounds of relevance.
Allegation 3
[51] The respondent submitted that the issue is whether it was patently unreasonable for the Commissioner, sitting on an appeal, to accept the findings of fact made by the Board members, who saw and heard the witnesses. It was submitted that the Commissioner gave the appropriate level of deference to the Board’s findings of fact. The Board concluded that, despite the complainant’s level of intoxication, he was not so drunk or foolhardy as to assault a uniformed police officer in a crowded bar. It was submitted that there is nothing patently unreasonable in that logic. The Board also considered the absence of corroboration of the applicant’s version of events.
Allegation 4
[52] The respondent submitted that sufficient notice of allegation 4 was provided, as the notice set out the offence (disgraceful conduct) and the occasion and events (the time and date, location and persons involved in the offence). While the Board did not find that the prisoner, Sherbuck, was in the rear of the police vehicle at the time of the alleged assault, it did find that he was restrained by handcuffs and intoxicated and that he did not pose a risk so as to justify the officer punching him in the face. The respondent submitted that these findings were squarely within the particulars. It was submitted that the precise location of the incident (inside or outside the car) is a surplus detail that cannot be said to have misled the applicant to the occasion and events indicated in the notice. It was also submitted that being handcuffed and secured in the rear of the vehicle at the time of the alleged assault, while certainly an aggravating factor, is not necessary to establish the offence of engaging in disgraceful conduct by assaulting a prisoner.
Sanctions
[53] The respondent submitted that the sanction of dismissal was reasonable and appropriate, given the applicant’s resistance to counselling, the misconduct alleged, his lying about the events at Rooster’s Pub to cover up his misconduct, his lack of remorse, and his prior disciplinary record.
Analysis and Decision
[54] The issues on this application can be framed as follows:
1. What is the appropriate standard of review?
2. Did the Commissioner err in finding that the applicant had sufficient notice of allegations 2 and 4?
3. Did the Commissioner err in finding that subsection 43(6) of the RCMP Act had been complied with?
4. Did the Commissioner err in upholding the Board’s finding that allegations 2, 3 and 4 were established on the evidence?
5. Did the Commissioner err in upholding the Board’s decision on the sanctions?
Standard of Review
[55] Issue 1
What is the appropriate standard of review?
There are different types of determinations being reviewed. I shall deal with each in turn.
[56] The issue of whether the applicant had adequate notice of the allegations against him, irrespective of compliance with subsection 43(6) of the RCMP Act, is a matter of procedural fairness. If the notice that was given to the applicant does not meet the standard demanded by the rules of natural justice, the decision of the Commissioner must be set aside (see Bates v. Canada (Royal Canadian Mounted Police), [1985] F.C.J. No. 811 (T.D.) (QL)). The duty of procedural fairness does not engage a standard of review analysis.
[57] The issue of whether the particulars contained sufficient details so as to comply with subsection 43(6) of the RCMP Act is a question of mixed fact and law. I would therefore adopt the reasoning of Justice Lemieux in Thériault v. Canada (Royal Mounted Police), 2004 FC 1506 at paragraphs 18 to 20. Thériault concerned a determination by the Commissioner as to whether a limitation period had expired before the appropriate officer initiated a disciplinary hearing. Applying Justice Kelen’s analysis in Stenhouse v. Canada (Attorney General), 2004 FC 375 at paragraphs 20 to 22, Justice Lemieux in Thériault concluded that the standard of review that should apply to the determination of the limitation period, a question of mixed fact and law, is that of reasonableness simpliciter. In my opinion, the same standard should apply in the present case to a finding as to whether the particulars set out in the notice of disciplinary hearing comply with subsection 43(6).
[58] Findings of disgraceful conduct and findings on the sanctions to be imposed are primarily fact-driven determinations. They are also discretionary in nature, and as such, are distinct from questions of mixed fact and law such as limitation periods or sufficiency of particulars. The Commissioner is free to make a decision based upon the specific facts of each case, and is neither bound by prior decisions of the Adjudication Board nor by recommendations of the ERC (see Rendell v. Canada (Attorney General), 2001 FCT 710). I would agree with the respondent that the Commissioner has greater experience relative to the Court in the realities and demands of policing, including the appropriate use of force when dealing with civilians and the appropriate sanctions to ensure the integrity and professionalism of the police force. Moreover, I would note that there is a privative clause in respect of the decisions of the Commissioner (see subsection 45.16(7) of the RCMP Act). Given these factors, I am of the view that a highly deferential standard of review, that of patent unreasonableness, should apply to findings by the Commissioner on allegations of disgraceful conduct and sanctions for disgraceful conduct. This standard of review is consistent with the decision of this Court in Gordon v. Canada (Solicitor General), 2003 FC 1250 at paragraph 19. In Gordon, Mr. Justice Campbell judicially reviewed a decision by the Commissioner on findings of misconduct and the sanction imposed on a police officer.
[59] Issue 2
Did the Commissioner err in finding that the applicant had sufficient notice of allegations 2 and 4?
As stated above, the issue of adequate notice is a procedural fairness issue. The Commissioner’s decision will be set aside if the applicant did not receive sufficient notice of the allegations made against him, such that the duty of procedural fairness was breached in the circumstances.
[60] In Re Golomb and College of Physicians and Surgeons of Ontario (1976), 12 O.R. (2d) 73, 68 D.L.R. (3d) 25, the Ontario Divisional Court considered whether the appellant physician, who was disciplined for professional misconduct, had adequate notice of the allegations of fraud that were made against him. Mr. Justice Galligan for the majority of the Court, stated the following principles concerning the notice that should be given to a person accused of professional misconduct:
Was the appellant found guilty of and sentenced for the offence with which he was charged?
In cases of this type, no one would suggest that an allegation of professional misconduct need have that degree of precision that is required in a criminal prosecution. But the charge must allege conduct which if proved could amount to professional misconduct and it must give the person charged reasonable notice of the allegations that are made against him so that he may fully and adequately defend himself. This proposition has been stated by many authorities. I need refer only to the language of Culliton, C.J.S., in R. v. Discipline Committee of College of Physicians & Surgeons of Province of Saskatchewan, Ex p. Sen (1969), 6 D.L.R. (3d) 520 at p. 524, 69 W.W.R. 201:
Not only must the charge be correct in form and sufficient to inform the person charged, in general terms, of the charge against him, but must contain sufficient particulars to enable him to properly prepare his defence.
See also S.A. de Smith, Judicial Review of Administrative Action (1959), p. 109.
It follows from the requirement that the charge must be particularized to that extent that an accused must not be tried on a charge of which he has not been notified. It also follows that evidence ought to be confined to the charge against him. Evidence relating to other suggestions of misconduct should not be presented because it could have a very serious prejudicial effect upon the tribunal and it is evidence relating to conduct which he is not prepared to defend.
I think that it is particularly important to remember these fundamental principles when considering a charge as broad as professional misconduct. Obviously, there can be a great range in the degree of seriousness of conduct which could amount to professional misconduct. And there can be a wide range in what would be the appropriate penalty depending upon the seriousness of the allegations made against a person accused of professional misconduct. It is therefore particularly important for a person accused of professional misconduct to know with reasonable certainty what conduct of his is alleged to amount to professional misconduct.
[61] In my view, these principles are applicable in the present case in determining the adequacy of notice that is given to a police officer with respect to allegations of professional misconduct.
[62] The applicant submitted that the Board erred in finding that allegations 2 and 4 were established, because the Board relied on facts that were not plead in the particulars or urged by the appropriate officer at the hearing. It was submitted that the Commissioner erred in not allowing the appeal on those grounds.
[63] I shall deal first with allegation 2. The Board, at page 24 of its decision, made a finding that disgraceful conduct was established, as follows:
We find that Constable Gill used excessive force in the arrest of Sherbuck and damaged his vehicle, and the Board is satisfied, upon having reviewed all the evidence, that the act and conduct of Constable Gill has been established.
[64] I agree with the applicant that this is a different finding of misconduct as was alleged in the particulars. The particulars of allegation 2 stated that the applicant was “discourteous, disrespectful and/or unprofessional towards [Mr. Sherbuck], including making unnecessary remarks to taunt Mr. Sherbuck or to cause him to feel threatened.”
[65] The Board’s finding of misconduct is also different from the allegations of disgraceful conduct submitted by the appropriate officer’s counsel at the hearing. Pages 216 to 218 of the transcript of the hearing on April 16, 2002 record the following submissions made by the appropriate officer’s counsel:
This person has come forward, this person has presented himself on the stand, he’s been subjected to cross-examination. You’ve observed his demeanour. He’s told a story of how he was treated by this constable and in two (2) areas I would suggest to you that disgraceful conduct has been shown.
One (1) is the choking aspect, right before the arrest and, in my submission, that is inappropriate, unnecessary and it was made out.
. . .
The second aspect is how he was dealt with in the back of the police car. Mr. Sherbuck has come here today giving testimony under very difficult cross-examination.
He’s, in my submission, stood his ground well, giving his testimony, as best as he could, after two (2) years, of how things were said to him that, in my submission, are inappropriate for a police officer who has a prisoner in custody. Saying such things as crybaby and mama’s boy, which in my submissions, are antagonistic comments.
[66] The Board did not accept these submissions. The Board found that Sherbuck had embellished his story and that he had not been choked by the applicant. The Board did not state whether it found the applicant was discourteous or disrespectful to Sherbuck including making verbal taunts. Nevertheless, the Board made findings of disgraceful conduct based on other facts.
[67] In my view, the Board did not give the applicant adequate notice of the allegations of misconduct that were established against him. It is not sufficient that the particulars correctly iden