Canada (Attorney General) v. Herrera-Morales

Canada (Attorney General) v. Herrera-Morales
Court (s) Database
Federal Court of Appeal Decisions
Date
2017-08-01
Neutral citation
2017 FCA 163
File numbers
A-221-16
Decision Content
Date: 20170801
Docket: A-221-16
Citation: 2017 FCA 163
CORAM:
NADON J.A.
DAWSON J.A.
GAUTHIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
JAIME HERRERA-MORALES
Respondent
Heard at Vancouver, British Columbia, on May 15, 2017.
Judgment delivered at Ottawa, Ontario, on August 1, 2017.
REASONS FOR JUDGMENT BY:
GAUTHIER J.A.
CONCURRED IN BY:
NADON J.A.
DAWSON J.A.
Date: 20170801
Docket: A-221-16
Citation: 2017 FCA 163
CORAM:
NADON J.A.
DAWSON J.A.
GAUTHIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
JAIME HERRERA-MORALES
Respondent
REASONS FOR JUDGMENT
GAUTHIER J.A.
[1] The Attorney General of Canada (AGC) appeals a decision of Heneghan J. of the Federal Court (Federal Court) allowing Jaime Herrera-Morales’ application for judicial review of a decision of a Probationary Review Officer (Officer), Deputy Commissioner D. Dubeau of the Royal Canadian Mounted Police (RCMP). The Officer dismissed Mr. Herrera-Morales’ appeal of the Appropriate Officer (AO)’s decision to discharge him for unsuitability as defined in subsection 45.18(1) of Part V of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (version in force between June 19, 2013 and November 27, 2014) (Act) and the Commissioner’s Standing Orders (Probationary Member), 1997, Appendix AM-X-3-15 (Standing Orders).
[2] At issue is whether the conduct of Mr. Herrera-Morales should have been the subject of an oral hearing under Part IV of the Act (disciplinary action) instead of being reviewed under Part V of the Act (management right to dismiss on grounds of unsuitability).
[3] Mr. Herrera-Morales, a probationary member of the RCMP, was discharged; this appeal is thus important to him. However, as noted by his counsel at the hearing, this case is really the first and the last of its kind. Our decision will have little, if any, precedential value given that the Act (and the Code of Conduct) was completely overhauled after lengthy consultation in 2014. Part V of the Act that is under review in this appeal no longer exists. Under Part IV, the holding of a hearing is now discretionary and new sections have been added to deal with probationary members (sections 9.3 and 9.4).
[4] As this appeal turns on the interpretation of Part V, and more particularly former section 45.18 of the Act, the most relevant sections of the Act and the Standing Orders are reproduced in Annex 1 to these reasons.
[5] In my view, the Federal Court mischaracterized the main issue before it and thus applied the wrong standard of review.
[6] For the reasons that follow, I am of the view that this appeal should be allowed.
I. Background [7] There is no need to describe in detail the factual matrix. The evidence and submissions reviewed by the administrative decision-makers were voluminous (more than 1000 pages).
[8] Suffice it to say that Mr. Herrera-Morales was recruited by the RCMP and was engaged as an RCMP Cadet on November 23, 2010. He completed his Cadet Training Program on May 16, 2011. Upon completion, he signed an engagement document (Appeal Book, Vol. 1 at 148) where he acknowledged that he understood that if he was found to be unsuitable for duties as a regular member of the RCMP during the first two years of service, he may be subject to discharge as a probationary member under Part V of the Act (see also subsections 45.19(8) and (11) of the Act). He immediately entered into the RCMP Field Coaching Program (the Program).
[9] A number of incidents arose during the Program starting in July 2011, which involved, among other things, the copying of responses on compulsory assignments in the Program such as the Module A and Module B assignments and the unattributed and inappropriate cutting and pasting of text from a website without attribution in his Community Profile Assignment. It was also alleged that Mr. Herrera-Morales lied or failed to readily disclose the whole truth to other members of the RCMP on several occasions.
[10] On September 9, 2011, in his four-month Program assessment report, he was rated as “unacceptable” under Core Values of the RCMP (i.e. honesty and integrity) and “needs improvement” in respect of communication, ability to conduct investigations, conscientiousness and reliability.
[11] On October 13, 2011, Assistant Commissioner McRae, the Commanding Officer in charge of the Surrey Detachment where Mr. Herrera-Morales was assigned, suspended Mr. Herrera-Morales from the Program and placed him on administrative duties.
[12] On October 24, 2011, Assistant Commissioner McRae ordered what is referred to as a Code of Conduct investigation pursuant to Part IV of the Act in respect of three potential breaches of the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361, (Regulations). Namely, a breach of subsection 39(1) of the Regulations (conduct that could bring discredit onto the RCMP) by copying answers from the answer key in respect of Assignment Module B and a breach of paragraph 45(a) of the Regulations (lying in the performance of duties) by lying to a superior officer when asked about that incident. Mr. Herrera-Morales was also investigated for a possible breach of paragraph 45(a) with respect to whether he lied to his watch supervisor regarding an incident that is referred to in the documentation as the Notebook Incident.
[13] While on administrative duty and under investigation, Mr. Herrera-Morales repeatedly accessed the RCMP database (PRIME) on December 28, 29, and 30, 2011, for non-duty related purposes and allegedly discussed some general information obtained with a friend (PRIME Incidents).
[14] On February 7, 2012, Assistant Commissioner McRae reported to Inspector Sullivan, OIC Professional Standard of the “E” Division (that is British Columbia), that in his view, all three allegations investigated were supported and recommended that formal discipline proceedings be initiated under Part IV. He also explained why in this particular case, consideration should be given to an application of Part V of the Act. A copy of this report was sent to the AO, Assistant Commissioner Callens, who was also the Commanding Officer of the “E” Division of the RCMP.
[15] On February 8, 2012, upon being apprised of the PRIME Incidents, Assistant Commissioner McRae ordered another Code of Conduct investigation, this time to investigate the new incidents. Once again, the allegations to be investigated were potential breaches of subsection 39(1) of the Regulations. In the course of this second investigation, Mr. Herrera-Morales was again interviewed (videotaped) after being advised of his rights and given the opportunity to consult with a lawyer.
[16] On April 13, 2012, the AO, Assistant Commissioner Callens, suspended Mr. Herrera-Morales from his duties. There is no information as to how this decision was conveyed to Mr. Herrera-Morales or if he was advised that the said AO was considering whether to issue a Notice of Intent to Discharge under Part V of the Act.
[17] On May 3, 2012, Assistant Commissioner McRae initiated a formal disciplinary action under Part IV of the Act (section 43 of the Act) (Officer Reasons at paragraph 153). It is not clear if he did anything other than send a Notice to the Designated Officer in that respect. It also unclear when and how Mr. Herrera-Morales became aware of this fact; the notice is not in the Appeal Book. However, it is not disputed that the process initiated was based on many of the incidents that were later included in the Notice of Intent to Discharge sent to Mr. Herrera-Morales pursuant to subsection 45.19(1) (Part V) of the Act (the Notice). There is no information in the record as to what formal sanction was envisaged or sought, given that contrary to Part V, a range of sanctions were available under Part IV of the Act. Although there is no evidence in the record as to how this happened and what exactly was said to Mr. Herrera-Morales, the disciplinary process was suspended and no panel was assigned to the matter (subsection 43(4) of the Act). It is worth mentioning that the Act provides for a short one-year time limitation period during which one can initiate formal disciplinary action under Part IV (see subsection 43(8) of the Act).
[18] Further to the recommendation of Assistant Commissioner McRae and the suspension from all duties ordered on April 13, 2012, the AO signed the Notice on December 20, 2012, which was served on Mr. Herrera-Morales on December 31, 2012. It is not disputed that Mr. Herrera-Morales was provided with all the evidence and material collected during the investigation and everything that could be relevant to the twelve incidents disclosed in the detailed 20-page Notice.
[19] Mr. Herrera-Morales was represented by legal counsel throughout the Part V discharge proceeding. He submitted a detailed response to the Notice on March 29, 2013 in which he raised several objections, including that his performance was unfairly evaluated, that he had not been provided with reasonable assistance, guidance and supervision (RAGS), particularly when taking into account his English language proficiency, and that his record included notations corroborating the fact that he might well require help in that respect. He also argued that he was the victim of discrimination on the basis of language and that the commencement of concurrent discipline and performance proceedings under Part IV and V of the Act was unlawful and unfair.
II. The AO Decision [20] Because the Officer agreed with the AO’s rationale in most respects relevant to this appeal, it is worth summarizing the AO’s most salient findings.
[21] On August 22, 2013, the AO issued a lengthy and detailed decision (40 pages) (AO Reasons) wherein he concluded that Mr. Herrera-Morales should be discharged pursuant to subsection 45.19(9) of the Act.
[22] The AO followed a seven-question analytical grid adopted by members of the RCMP Discharge and Demotion Board (under Part V) and by the external review committee (AO Reasons at para. 15). He dealt with the preliminary issues raised by Mr. Herrera-Morales with respect to the potential concurrent application of Parts IV and V of the Act to the same or similar factual basis at paragraphs 18-26 of his reasons. In the AO’s view, Parts IV and V are meant to work symbiotically, not competitively. He gave some examples, such as section 41 of the Act, which lists the available informal disciplinary sanctions. These include performance measures such as “recommendation for special training” and “direction to work under close supervision”. The AO also noted that the RCMP Code of Conduct “whose breach is the foundation for any action under Part IV includes provisions for the neglect or insufficient attention” to “any duty the member is required to perform” (AO Reasons at para. 19). For the AO, it would be inconceivable that a member who neglected his or her duties could only be dealt with by using disciplinary or performance measures, but not both.
[23] The AO indicated that documentation available to all RCMP members, including Mr. Herrera-Morales, makes clear reference to the fact that conduct that attracts disciplinary measures could be dealt with under the performance management system and that it is an accepted practice that evidence gathered during a Code of Conduct investigation could be used in discharge proceedings under Part V.
[24] The AO held that in the present case, initiating a formal disciplinary action under Part IV and sending the Notice under Part V did not constitute an abuse of process. He concluded that in respect of the performance decision under Part V, all the various personnel involved, including Mr. Herrera-Morales and his counsel, had been given the opportunity to assist him in coming to a fair and reasonable decision in this matter.
[25] With respect to unsuitability, the AO found that on a balance of probabilities, there was insufficient evidence to convince him that Mr. Herrera-Morales failed to perform his duties in respect of the RCMP Core Values of honesty and integrity in the Module A Incident, the Missing Persons Incident and the Exhibits Incident. However, he held that on a balance of probabilities, Mr. Herrera-Morales had failed to perform his duties in relation to the Recovered Stolen Vehicle Incident, the Module B Incident, the Community Profile Incident, the Notebook Incident, and the PRIME Incidents (AO Reasons at paras. 107, 108 and 109). Having considered that he was to judge Mr. Herrera-Morales’ performance against that of “a reasonably able, skillful and efficient probationary member”, the AO also found that Mr. Herrera-Morales repeatedly failed to perform his duties (particularly the Module B Incident and the PRIME Incidents) in a manner befitting his position.
[26] It is clear that the AO, having considered the response of Mr. Herrera-Morales, decided that his ultimate decision to recommend a discharge was based entirely on the performance incidents involving the RCMP Core Values of honesty and integrity because he was satisfied that in respect of those incidents the criteria set out in subsection 45.18(1) were met.
[27] The AO noted at paragraph 112 of his reasons that he only considered the RAGS with respect to honesty and integrity because unquestionably, more assistance could have been provided to address Mr. Herrera-Morales’ other performance issues. Thus in that respect, he did agree with the representations made by Mr. Herrera-Morales.
[28] At paragraph 113 of his reasons, the AO summarized the RAGS provided to Mr. Herrera-Morales in respect of the RCMP Core Values of honesty and integrity before and after the incidents.
[29] It is in that particular context that the AO dealt with the allegation that English language proficiency played a role in Mr. Herrera-Morales’ performance deficiency and whether further assistance in this area could have addressed the situation (AO Reasons at paras. 120-136). He clearly understood that “it would truly be a travesty and RCMP loss” if Mr. Herrera-Morales were discharged on the basis of misunderstanding due to poor communication (AO reasons at paragraph 120).
[30] The AO concluded at paragraphs 135and 136 that:
Based on the totality of the evidence presented to me, I find that English proficiency did not provide any circumstances that would explain or mitigate the performance failures with respect to the RCMP Core Values of honesty and integrity…. there is no need to address the third issue of whether language coaching or other therapy would have assisted him. Put another way, it is an irrelevant consideration that the RCMP did not provide Cst. Herrera-Morales with special assistance, guidance and supervision in the form of language training because I find that Cst. Herrera-Morales’ performance failures were clearly due to a lack of honesty and integrity, not language skill.
[31] The AO found at paragraph 137, that on the totality of the evidence, he was satisfied that Mr. Herrera-Morales had “enjoyed effective, reasonable and sincere RAGS” [emphasis added].
[32] The AO considered that despite the provision of the relevant RAGS, Mr. Herrera-Morales continued to fail to meet the Core Values of honesty and integrity (AO Reasons at paras. 151-156).
[33] In the section entitled “Conclusion” found at paragraphs 157-163 of the AO’s reasons, the AO noted that “[l]ying is an incredibly insidious behaviour for police officers, as it truly undermines the very fabric of our public function”. He stated that integrity is at the very core of what makes a person suitable to be a member the RCMP.
[34] Finally, the AO mentioned that he was alert and alive to the seriousness of his decision considering both that the RCMP invests a lot of time, effort and money training its new members and the dire consequences the decision will have on Mr. Herrera-Morales. Still, he held at paragraph 162 of the reasons that discharge was necessary in the circumstances.
III. The Officer’s Decision [35] Mr. Herrera-Morales appealed the AO decision on October 22, 2013 after obtaining an extension of time to do so.
[36] After reviewing the facts in detail, the decision of the AO and the arguments and supporting material before him, the Officer confirmed, in a decision dated January 15, 2015 (Officer’s Reasons), the AO’s decision to discharge Mr. Herrera-Morales. The Officer stated that he was satisfied with that decision (Officer’s Reasons at para. 147). That said, he still thought it necessary to add some comments in respect of several issues raised by Mr. Herrera-Morales, some of which are relevant to the present appeal.
[37] At paragraphs 208 to 213, the Officer made several comments with respect to Mr. Herrera-Morales’ argument that by focusing on incidents involving the RCMP Core Values of integrity and honesty, the AO unlawfully discharged him on the basis of discipline rather than performance. The Officer noted that as a senior leader of the RCMP, it is clear to him that:
performance in the policing context is not solely based on performing a particular task such as properly processing a stolen vehicle or logging an exhibit. It should not be so narrowly interpreted. Rather, it should be considered in the broader context of [the] core values of honesty and integrity. It is not simply a question of what was done but it is also as important to consider how it was done [emphasis added]
(Reasons at para. 209)
[38] In the Officer’s view, the intent reflected in subsection 45.18(1) of the Act was to include the type of consideration referred to in Jacmain v. Canada (Attorney General) et al., [1978] 2 S.C.R. 15 [Jacmain].This illustrates the Officer’s thinking that performance does not only include the quality and quantity of work, but also an employee’s character, the ability to work in harmony with others and the general suitability for retention in the organisation.
[39] As indicated at paragraph 213 of his reasons, “suitability” considerations would include the RCMP Core Values, which are a fundamental cornerstone upon which the RCMP culture is built. The Officer noted that “[t]hese core values are evaluated during the recruitment process and they are assessed at Depot, during the Field Coaching Program and throughout [one’s] career in the RCMP.” He added that to discount such important values and not consider them in the discharge process under Part V was simply not acceptable.
[40] With respect to the ability to pursue proceedings concurrently under Part IV and Part V of the Act, the Officer noted that nothing that was presented to him convinced him that both processes cannot proceed simultaneously. He also noted that it was not surprising that Part IV would be engaged first when the allegations came to light given the one-year limitation period to initiate a formal disciplinary proceeding under Part IV (Officer’s Reasons at para. 225).
[41] In the Officer’s view, investigating an incident and sending a notice under subsection 43(1) of the Act could not have the effect of preventing the AO from exercising his jurisdiction under Part V of the Act.
[42] The Officer made it clear that he agreed with the AO that the facts and evidence obtained through a Code of Conduct investigation are entirely relevant to the performance discharge process initiated under Part V. These processes are simply not mutually exclusive. Once again, he referred to a Court decision to illustrate his thinking. The Officer quoted a passage from Marceau J.A.’s reasons in Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 at 9 [Penner], which explains that behavior amounting to misconduct (disciplinary issue) can also give rise to a bona fide dissatisfaction with suitability. And, thus, a management decision based on suitability should not be confused with a disciplinary sanction. While using the quote from Penner to illustrate his thinking, it is clear from paragraph 228 of his reasons that the Officer was alert to the fact that the statutory scheme before him was not the same as the one in play in Penner.
[43] Furthermore, in the Officer’s view, the fact that the AO discarded some incidents listed in the Notice where proper RAGS (especially language) could have addressed the concern showed that the AO actually considered Mr. Herrera-Morales’ submissions and thus respected the intent of the legislator and procedural fairness (there was an allegation that the AO did not have an open mind). In fact, the Officer noted that the AO’s analysis in this respect made him more confident in confirming the AO’s final decision to discharge.
[44] The Officer’s conclusions with respect to “grounds of unsuitability” is found at paragraph 231 of his reasons, where amongst other things, the Officer noted that he was satisfied that the test to establish the ground of unsuitability was met in this case. In his view, Mr. Herrera-Morales was aware of the duties he was to perform as well as the expected standards (i.e. that lying, cheating, plagiarizing and using police information systems for personal reasons was unacceptable). Despite this, he repeatedly failed to perform his duties in a manner fitted to the requirements of his position as a probationary member as demonstrated through the eight incidents noted in the decision. The Officer added:
I am satisfied that reasonable assistance, guidance and supervision were provided in order to address his shortcomings in relation to honesty and integrity. The evidence shows that Cst. Herrera was continuously closely supervised by his coaches during his [Program]; discussions took place with the Member following the incidents to address the importance of honesty and integrity and this was also documented.
[45] He concluded at paragraph 233 of the reasons that he shared the following views expressed in the AO’s Reasons:
This is one of those cases where I find the discharge of the member is definitely necessary. This is not a case where Cst. Herrera-Morales made an isolated and understandable error in judgment. There are multiple and progressively serious incidents where Cst. Herrera-Morales demonstrated his repeated failure to follow the RCMP Core Values of honesty and integrity, even in the face of sincere guidance and advice on these most basic values. It is my view that the RCMP can teach a person about police ethics, but not about moral fabric. We do not employ a person and teach them to be honest. We employ an honest person and teach them to be a Mountie.
IV. The Federal Court Decision [46] On application for judicial review, the Federal Court characterized the main issue before it as follows: Did the Officer breach procedural fairness by deciding that the applicant could be discharged under Part V of the Act? To answer this question, the Federal Court applied the standard of correctness (2016 FC 578, at para. 76).
[47] Although the Federal Court agreed that the Act does not prohibit concurrent proceedings under Part IV and Part V, it held that Part V could not be improperly used as a disguise for disciplinary sanctions (FC Reasons at para. 77). The Federal Court also found that the Officer erred in finding that unsuitability included breaches of the Code of Conduct, as it was of the view that the scope of subsection 45.18(1) was limited to performance and nothing more (FC Reasons at para. 88).
[48] After considering the criteria set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker], particularly what it found to be Mr. Herrera-Morales’ legitimate expectation that breaches of the Code of Conduct would be dealt with under Part IV of the Act, the Federal Court concluded that Mr. Herrera-Morales was entitled to an oral hearing as provided under that Part of the Act. Therefore, at paragraph 98, the Federal Court concluded that the Officer breached Mr. Herrera-Morales’ procedural rights and the Officer’s decision was set aside on that basis.
[49] Although the Federal Court offered brief comments on the other issues raised in respect of the merits of the decision per se, it is clear that these comments played no part in its ultimate decision to quash the Officer’s decision.
[50] These comments are found at paragraphs 92-97 of the Federal Court’s reasons. They can be summarised as follows.
[51] First, the Federal Court dealt with the alleged failure of the Officer to consider Mr. Herrera-Morales’ difficulties with English and whether this amounted to discrimination. It focussed on the Officer’s conclusion at paragraph 230 where he says that he was not persuaded by the argument that they played a major role in respect of issues before him. The Federal Court noted that a member may only be discharged for failing to perform his duties if the member received RAGS in an effort to improve his performance. The Federal Court concluded that the Officer had not sufficiently explained why the RAGS provided were adequate. Particularly, there was no indication that he considered whether the language difficulties (a concern raised by other members of the RCMP in respect of other performance issues) prevented Mr. Herrera-Morales from understanding the RAGS. This in the Federal Court’s view was unreasonable. However, there was insufficient evidence to find discrimination.
[52] Second, turning to the assessment of the evidence by the Officer, the Federal Court found that the Officer consideration of the evidence was reasonable.
V. Issues [53] The role of this Court in appeals of decisions dealing with applications for judicial review is to determine whether the reviewing Court chose the appropriate standard(s) of review applicable to the issues before it and properly applied them. This means that this Court steps into the shoes of the reviewing Court and its focus is on the administrative decision-maker’s decision, not on the Federal Court decision: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 46-47 [Agraira].
[54] The determinative questions in this appeal are:
i. Whether the Federal Court improperly characterized the main issue before it as one of procedural fairness as opposed to one of statutory interpretation of the Act which sets out the exact procedures to be followed when discharge for unsuitability is contemplated under Part V of the Act;
ii. If the Federal Court did not mischaracterize the issue, whether the Federal Court correctly applied the standard of review to the issue of procedural fairness, including particularly in respect of whether Mr. Herrera-Morales had a legitimate expectation of an oral hearing pursuant to Part IV of the Act; and,
iii. If the Federal Court did mischaracterize the issue, was the Minister’s statutory interpretation of subsection 45.18(1) of the Act reasonable?
[55] The AGC argued that the Federal Court applied the wrong standard of review to determine what procedure was fair and appropriate in the circumstances. By doing so, the Federal Court gave no deference whatsoever to the Officer’s construction of subsection 45.18(1) of the Act, a provision in his home statute. For the AGC, the Officer was entitled to the presumption that his construction is reviewable on the standard of reasonableness.
[56] The AGC further submitted that the Federal Court’s conclusion that Mr. Herrera-Morales had a legitimate expectation that his case would be dealt with under Part IV was again premised on the Federal Court’s view that subsection 45.18(1) of the Act was inapplicable and as such, is also flawed.
[57] At the hearing of this appeal, Mr. Herrera-Morales maintained the position that the Federal Court had properly identified the issue before it as one of procedural fairness and legitimate expectation. He relied on the decision of the Supreme Court of Canada in Baker. He added that it is trite law that such an issue is to be reviewed on the correctness standard.
[58] Because of the nature of the interests at stake (dismissal based on what may constitute breaches of the Code of Conduct), Mr. Herrera-Morales claimed that he was entitled to the full procedural rights provided for under Part IV of the Act. In his view, while both Part IV and Part V proceedings could result in a discharge, Part IV, as it read at the relevant time, provided for a full hearing in all cases where formal discipline was initiated. In this case, several of the incidents included in the Notice and ultimately considered as the basis for discharge by the AO and the Officer were also alleged to be breaches of subsection 39(1) and paragraph 45(a) of the Regulations (Code of Conduct) that had been investigated under Part IV (section 40 of the Act).
[59] Moreover, although Mr. Herrera-Morales acknowledged before us that in some cases, concurrent proceedings can be undertaken under Part IV and Part V of the Act, he submitted that the RCMP cannot commence formal disciplinary proceedings under Part IV and then circumvent the requirements of that part of the Act by discharging the member under Part V on the same factual basis. On that interpretation, Mr. Herrera-Morales therefore had a legitimate expectation that a disciplinary hearing would be held in respect of the alleged breaches of the Code of Conduct.
[60] Alternatively, Mr. Herrera-Morales contended that the Officer’s interpretation of the Act is unreasonable given that the statutory scheme demonstrates Parliament’s intention for Code of Conduct contraventions to be addressed under Part IV rather than Part V. Allowing the RCMP to discharge probationary members for disciplinary reasons under Part V would render the application of Part IV to probationary member meaningless. Since the grounds for discharging Mr. Herrera-Morales are all disciplinary in nature, the discharge should have been addressed under Part IV of the Act.
[61] I described the determinative issues in paragraph 54 above, on the basis of the written arguments of the parties (see particularly paragraph 45 of Mr. Herrera-Morales’ memorandum of fact and law)
[62] In her own memorandum, the AGC also challenged the Federal Court’s finding that the Officer’s conclusion about the role of English proficiency and the RAGS was unreasonable. The AGC noted that the Federal Court was in fact reweighing the evidence and had failed to consider the Officer’s reasons in their proper context as directed by the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC62, [2011] 3 S.C.R.708. Mr. Herrera-Morales did not make any submissions on these issues. He also did not challenge the Federal Court’s statement that the Officer did not err in his consideration of the evidence.
[63] Still, at the hearing before us, Mr. Herrera-Morales argued that the errors addressed in his memorandum that I described at paragraph 54 above could not be determinative because of the Federal Court’s finding in obiter in respect of RAGS and his language difficulties. This new position effectively makes Mr. Herrera-Morales’ argument that the statutory interpretation adopted by the Officer was unreasonable irrelevant. It shifts the focus of the debate before us.
[64] The AGC objected that this issue could not be raised for the first time at the hearing. I agree that, at the very least, this issue should have been raised as a preliminary issue at the commencement of the oral arguments, and that the failure to do so prejudiced the AGC.
[65] In any event, I am satisfied that the Federal Court misapplied the standard of reasonableness in respect of the RAGS and the language issue. It did not consider the Officer’s reasons as a whole and in the context of the record before him, which included the AO’s decision and the particular submissions made by Mr. Herrera-Morales (as opposed to those he appears to have raised before the Federal Court). Had the Federal Court done so, it could not have reached the bald conclusion on which Mr. Herrera-Morales now tries to rely. I will review this briefly in my analysis.
VI. Analysis A. Did the Federal Court mischaracterize the question before it as one of procedural fairness? [66] To determine the appropriate standard of review, the Court must properly characterize the issue before it. To do so in this case, one must take into account the following:
i. The Act sets out a comprehensive set of rules for the procedures to be followed before one can make a decision under Part IV (disciplinary action) and Part V (management right to discharge on grounds of unsuitability). It details the participatory rights of the members of the RCMP including probationary members.
ii. It is clear that in matters that fall within the ambit of subsection 45.18(1) of the Act (Part V), the legislator has fully considered whether probationary members should be entitled to have an oral hearing before a three-member Board. The Act expressly provides that such probationary members would not have the option of requiring such a hearing; only “full” members of the RCMP have the right to opt for an oral hearing (see paragraphs 45.19(4), (6), (7), (9)). This is not disputed.
iii. Mr. Herrera-Morales does not contest the constitutional validity of any of the provisions of Part V.
iv. It is trite law that such express choices made by the legislator in primary legislation bind any reviewing court. Absent a constitutional challenge when, as here, the intention of the legislator is unequivocal that a probationary member does not have the option of an oral hearing under Part V, there is no room to apply the common law doctrine of natural justice to import an obligation to hold such an oral hearing and to consider a failure to do so as a breach of procedural fairness (See Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] S.C.J. No. 17, at paras. 21, 22 and 27; and Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, para. 117).
[67] Thus, to determine whether, as argued by Mr. Herrera-Morales, he was entitled to an oral hearing because the conduct under review involved breaches of the Code of Conduct that had been investigated under Part IV, the Federal Court had to determine whether the incidents relied upon in the Officer’s decision could come within the ambit of subsection 45.18(1). If not, only Part IV applied and Mr. Herrera-Morales was entitled to the process set out in the relevant provisions of that part of the Act. This question involves construing Part V of the Act, particularly subsection 45.18(1). It is first and foremost a question of statutory interpretation followed by the application of this provision as construed to the facts of the case.
[68] Before us, and this is not the basis on which the Federal Court examined the issue of procedural fairness before it, Mr. Herrera-Morales argued that the issue is one of procedural fairness because when exercising discretion under subsection 45.18(1) of the Act the decision-maker had to consider that his decision would impact on Mr. Herrera-Morales’ participatory rights – Mr. Herrera-Morales would lose the benefit of the full hearing provided for under Part IV. He argues that this preliminary decision (i.e. the exercise of the discretion to proceed or not under Part V), as opposed to the decision of whether the AO should recommend a discharge per se, is subject to the common law duty of procedural fairness. Therefore, the Federal Court was entitled to apply the standard of correctness and to consider the Baker factors. I cannot agree.
[69] Assuming without deciding that there is a preliminary decision distinct from the one under review, I believe that this argument is based on a false premise. The point raised by Mr. Herrera-Morales before us is not whether the AO should have heard Mr. Herrera-Morales before exercising his discretion to engage Part V by issuing the Notice; this could potentially be an issue of procedural fairness but would not necessarily require an oral hearing. Rather it is that the AO should have considered the impact this had on how Mr. Herrera-Morales would be able to challenge the Notice (no oral hearing).When a court looks at the exercise of a discretion to engage a process like the one set out in sections 45.18 and following, to determine if the decision-maker failed to consider a particular fact, the court is actually reviewing the merits of that decision. Hence, like any other issue going to the merits of an administrative decision, the question of whether the decision-maker properly considered the impact of proceeding under Part V on a probationary member rather than under Part IV would be reviewable on the standard of reasonableness. In any event, this issue is not properly before us as it was not raised as such before the administrative decision-maker.
[70] Thus, as mentioned, the question before the Federal Court was whether the Officer made a reviewable error in interpreting subsection 45.18(1). Since this provision is within his enabling legislation, the Officer’s interpretation is presumptively entitled to deference. But the Federal Court gave no deference whatsoever to the decision-maker’s interpretation of the Act. Instead, it proceeded with its own view of what subsection 45.18(1) encompassed, and what “grounds of unsuitability” meant.
[71] There is no valid ground on which to rebut the presumption that the interpretation of this section by the specialized administrative decision-maker should be reviewed on the standard of reasonableness. In fact, Mr. Herrera-Morales does not dispute that if the question to be determined is one of statutory interpretation, the presumption has not been rebutted. Rather, what Mr. Herrera-Morales argues is that there was only one possible interpretation – his. The Officer’s conclusion was thus unreasonable.
[72] I therefore conclude that the Federal Court did not apply the proper standard of review to determine whether the AO was entitled to proceed as he did following the process set out in Part V of the Act.
B. Was the Officer’s statutory interpretation of the Act unreasonable? [73] As mentioned, to determine this question, I must proceed to apply the appropriate standard focusing on the Officer’s decision.
[74] At the relevant time, subsection 45.18(1) of the Act read as follows:
45.18 (1) Any officer may be recommended for discharge or demotion and any other member may be discharged or demoted on the ground, in this Part referred to as the “ground of unsuitability”, that the officer or member has repeatedly failed to perform the officer’s or member’s duties under this Act in a manner fitted to the requirements of the officer’s or member’s position, notwithstanding that the officer or member has been given reasonable assistance, guidance and supervision in an attempt to improve the performance of those duties.
45.18 (1) Le renvoi ou la rétrogradation d’un officier peut être recommandé, ou tout autre membre peut être renvoyé ou rétrogradé, pour le motif, appelé dans la présente partie « motif d’inaptitude », qu’il a omis, à plusieurs reprises, d’exercer de façon satisfaisante les fonctions que lui impose la présente loi, en dépit de l’aide, des conseils et de la surveillance qui lui ont été prodigués pour l’aider à s’amender.
[Emphasis added]
[Soulignement ajouté]
[75] This provision must be interpreted purposively, that is, considering the meaning of the words in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.
[76] In my view, this is the approach adopted by the Officer and the AO.
[77] Ordinarily, the word “unsuitability” means that a person is unfit for the duties of his or her position. However, the legislator added some specific criteria to this general meaning. “Grounds of unsuita