The Police Complaint Commissioner (“PCC”), having arranged for a public hearing, retains the authority to unilaterally withdraw the complaint from the adjudicator, despite the objections of complainants. The office of the PCC was created to provide meaningful civilian oversight in police disciplinary matters. To carry out that mandate, the PCC is empowered with right to arrange a public hearing when the PCC concludes that such a hearing is in the public interest. Under the Police Act, R.S.B.C. 1996, c. 367, the PCC is the guardian of the public interest, and has the ongoing responsibility of determining whether in changing circumstances, it is still in the public interest that the hearing proceed. The consent of the adjudicator and/or complainant is not required before the notice of public hearing can be withdrawn. On a procedural issue, the Court held that the complainants, who were participants before the adjudicator, were entitled to be joined as respondents in the judicial review proceedings.

Administrative law – Police – Disciplinary proceedings – Police Complaint Commissioner – Powers – Public hearings – Public interest test – Doctrine of incidental power – Judicial review – Procedural requirements

British Columbia (Police Complaint Commissioner) v. Vancouver City Police Department, [2003] B.C.J. No. 399, British Columbia Supreme Court, February 21, 2003, Goepel J.

On December 8, 1998, numerous individuals protested against the Prime Minister of Canada who was attending a fund-raising dinner inside a local hotel. A disturbance ensued and the Vancouver Police Department (the ‘VPD”) intervened. Several civilians were injured and certain members of the public subsequently filed complaints alleging wrong-doing on the part of various members of the VPD. The VPD conducted an internal investigation and delivered its investigation report to the Police Complaint Commissioner (the “PCC”). The PCC, after receiving formal requests from two complainants, ordered a public hearing into the incident on December 19, 1999 and named a retired justice of the Supreme Court as adjudicator to preside over the public hearing. In September 2002, the PCC advised the adjudicator that it was withdrawing its notice of public hearing as the proceeding was no longer in the public interest. The complainants objected and the matter was heard by the adjudicator who concluded that the PCC did not have the authority to unilaterally withdraw the complaint where the complainants objected to such withdrawal. The PCC sought judicial review of the adjudicator’s decision.

A procedural issue arose as to whether the complainants ought to be joined as respondents to the Petition or alternatively, that their participation was necessary to ensure that all matters were effectively adjudicated on. The Court concluded that the complainants, pursuant to both grounds of Rule 15(5)(a)(ii), ought to be joined as respondents in the proceedings. The Court rejected the PCC’s argument that the complainants’ remedy was limited to being granted intervenor status.

Under the Police Act, R.S.B.C. 1996, c.367 (the “Act”), it was the responsibility of the PCC to determine if a public hearing was necessary in the public interest. The PCC has been appointed to protect the public interest. He is an independent officer of the Legislative Assembly. It is for the PCC to determine the public interest. While the statute was silent as to whether the public interest test was a one-time or ongoing test, the Court accepted the PCC’s analogy that the public interest test was an ongoing test akin to Crown Counsel’s criminal charge approval standard. The PCC, through the doctrine of incidental power, had the authority to withdraw a notice of public interest once it had been issued. Such power existed by necessary implication from the wording of the Act, its structure and its purposes. Neither the complainant, who has no right to determine whether a public hearing will be heard in the first place and only limited rights at a public hearing if held, nor an adjudicator, who has been appointed for the purposes of conducting a hearing, has any rights to determine whether a hearing should proceed. An adjudicator does not have either the evidentiary foundation or legislative mandate to make such a decision. As well, the general rule is that if the party requesting a hearing withdraws the request, there is no foundation for the hearing and the tribunal has no jurisdiction to continue. For public hearings pursuant to the Act, the PCC is effectively the complainant.

In the result, the Petition was allowed. The adjudicator’s decision that the PCC did not have authority to unilaterally withdraw a notice of public hearing was quashed, as was the adjudicator’s Order that the public hearing would proceed. Furthermore, the adjudicator was prohibited from proceeding with the public hearing.

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