A 25-year veteran (“Read”) of the Royal Canadian Mounted Police (“RCMP”) did not succeed on judicial review from the decision of the Assistant Commissioner that he had breached the RCMP Code of Conduct and should be dismissed for discussing an investigation into suspected criminal activity in and about the Immigration Section of the Canadian Mission in Hong Kong with the media, when he had earlier sworn an Oath of Secrecy

Administrative law – Police – Royal Canadian Mounted Police – Disciplinary proceedings – Penalties and suspensions – Whistle-blower defence – Evidence – Public interest test – Judicial review – Standard of review – Correctness – Reasonableness simpliciter

Read v. Canada (Attorney General), [2005] F.C.J. No. 990, Federal Court, June 2, 2005, Harrington J.

In 1991 and 1992, the RCMP were advised about events that possibly indicated that individuals were being charged large sums of money to have their applications to emigrate to Canada fast-tracked. In addition, there was some information that forged visas or otherwise improperly issued visas were being distributed.

A second investigation followed in 1993 and a third investigation between 1995 and 1999. Cpl. Read was assigned as an investigator into the matter in 1996. Shortly afterwards, Cpl. Read was replaced by another investigator due to apparent complaints that Cpl. Read lacked objectivity and was leaping to conclusions which were not supported by the evidence of the witnesses he interviewed.

Cpl. Read was convinced that Asian criminal organizations had infiltrated the Computer-Assisted Immigration Processing System (“CAIPS”) and had a contact working in the Canadian Mission in Hong Kong. These suspicions were shared by a Mr. McAdam who worked at the Immigration Section. Cpl. Read disclosed an internal report (the “Balser Report”) on the matter to Mr. McAdam. No disciplinary proceedings were taken against him by the RCMP at that point, but when he later approached the Vancouver Province and provided them a copy of the Balser Report which pointed out grave shortcomings in the manner in which printed visa forms were accounted for, the RCMP alleged that Read had breached the Code of Conduct.

The standard of review analysis specified by the decisions in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 was applied. The Commissioner of the RCMP was considered to have obvious expertise relating to the RCMP which favoured deference and the Act also recognized the need for the RCMP to control its own disciplinary matters. On questions of law, however, the Court has a greater expertise and would review the Commissioner’s decision according to the standard of correctness. On mixed questions of law and fact, the Court would grant limited deference and would use a standard of reasonableness.

The Court reviewed the decision in Fraser v. Canada (Public Service Staff Relations Board), [1985] 2 S.C.R. 455 which forms the basis of the “whistle-blower” defence. In that case, the Court held that the federal public servants should be loyal to their employer but that, in some circumstances, a public servant may actively and publicly express opposition to the policies of government, such as where the government is engaged in illegal acts or if its policies jeopardize the life, health or safety of the public servant or others, or if the public servant’s criticism has no impact on the ability to perform effectively the duties of a public servant, or on the public perception of that ability.

The Court held that Cpl. Read’s criticism bore directly on his duties and responsibilities with the RCMP and also on the investigation. As a result, Cpl. Read lost his security classification and the trust of his superior officers. However, the Court was careful to point out that if Cpl. Read was entitled to blow the whistle, he would have to be accommodated in his employment.

As far as the health or safety of the public servant or others, the Court held that there was some slight possibility that the government policies, assuming Read’s suspicions were correct, would jeopardize the life, health or safety of the public servant or others, but that it was too remote to be used as a justification for Cpl. Read’s actions.

The case centred on the question of government illegality. Whistle-blowing would be permissible if the government were engaged in illegal acts. The Court considered the internal investigations by the RCMP and although there was a report indicating that the Immigration Section was highly vulnerable to fraud and other irregularities and that visa form control had to be improved, the internal investigations did not reveal any cover-up by the RCMP.

Similarly, Citizenship and Immigration Canada did not appear to have covered anything up in the report of Mr. Balser.

There was insufficient evidence to justify the laying of criminal charges, leaving a situation where there were merely suspicions by a number of RCMP officers that there was some criminal activity in and about the Mission in Hong Kong.

The Court held that there was more than enough evidence to justify the internal findings of fact and the findings of the Commissioner. Given that a finding of fact cannot be set aside unless it was patently unreasonable, the Court declined to disturb those findings.

The Court also held:

As to the burden of justifying a public allegation of government illegality, it was found that Cpl. Read honestly believed in what he had said. Honestly [sic] is not enough. There must be some rational basis to the allegations.

 Although there need not be proof positive of the allegations in order to raise a whistle-blowing defence, it was held that Cpl. Read did not even come close to proving his allegations on a balance of probabilities. A mere scintilla of evidence is clearly not enough to allow one to breach one’s duty of loyalty to one’s employer and one’s oaths.

Cpl. Read’s counsel also submitted that there should be an exception to the duty of loyalty for legitimate public interest. The Court agreed that the public should have an interest in the public affairs of the country, including the operation of government departments. However, there was also a public interest in police investigations remaining confidential because the public was also made up of criminal elements who would like to know the weaknesses in the system such that they could exploit them.

The Court also considered the issue of prejudice to the employer as a result of the whistle-blowing remarks. In this case, they held:

There is no question that Cpl. Read’s remarks impaired his ability to carry out his duty, and certainly had the potential of adversely affecting his employer. As noted in Fraser, supra, evidence can be inferred. It was not necessary for the RCMP to prove that anyone actually believed Cpl. Read when he accused four of his senior officers of criminality.

In addition, it was held that even had Cpl. Read been otherwise justified in going public with his allegations, he was precluded from doing so because he had not exhausted internal resources. There was an RCMP Public Complaints Commission grievance procedure which remained open to him.

The Court then considered whether the dismissal of Cpl. Read was an appropriate sanction in the circumstances. It was noted that this wrongful whistle-blowing was the only incident of significance in Cpl. Read’s 25-year record with the Department. That being said, the wrongful whistle-blowing incident proceeded over a number of years.

The Court referred to the Supreme Court’s decision in Ryan for the proposition that the decision on sanction was a question of mixed fact and law. The Assistant Commissioner’s decision on sanction was therefore subject to deference on the reasonableness simpliciter standard. The reasons for the decision were found to be clearly set out and the Court could not find that they were unreasonable.

In the result, the application for judicial review was dismissed.

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