Administrative law – Police – Disciplinary proceedings – Decisions of administrative tribunals – Police Commission – Hearings – Conduct of hearings – Unrepresented complainant – Judicial review – Evidence – Procedural requirements and fairness – Failure to provide reasons
Kelly v. Nova Scotia (Police Commission),  N.S.J. No. 284, Nova Scotia Supreme Court, June 2, 2005, F.C. Edwards J.
The Applicant brought a complaint against a police officer who had investigated him in connection with allegations that he had sexually assaulted and threatened a 14-year-old female. The Complainant spent two days in jail. The 14-year-old female later recanted one of her allegations, and the Crown elected not to recommend a charge of sexual assault pursuant to her allegation. The Complainant subsequently filed a complaint against the police officer, alleging that he had failed to properly and impartially investigate the allegations against him, on the basis of the officer’s friendship with the female’s stepfather. A Review Hearing took place before the Police Review Board which found that “the police officer did not engage in discreditable conduct in relation to his investigation”. This decision was appealed.
The Court held, first, that the fairness of the Hearing had been tainted by inappropriate cross-examination. The focus of the Board hearing should have been on the actions of the police officer, to determine whether the officer’s investigation was deficient and/or overzealous because of his friendship with the step-father. Instead, the Board heard a great deal of evidence regarding the character and lifestyle of the Complainant. While the police officer’s counsel was entitled to challenge the Complainant’s credibility in order to resolve conflicts in the evidence, this did not mean that counsel was entitled to attempt to prove that the alleged sexual assault had in fact occurred. While counsel is entitled to wide latitude in cross-examination, there are limits. Here, counsel had been permitted to get into highly prejudicial and irrelevant evidence regarding the Complainant.
The Court also held that the Board’s reasons were inadequate. The reasons did not address the significant credibility issues between the Complainant and the police officer, which the Board was required to resolve. The Complainant was entitled to know why he lost and whether he was believed or disbelieved by the Board and, if he was disbelieved, why the Board preferred the police officer’s evidence over his.
Finally, the Court held that the Board had failed to adequately assist the Complainant as an unrepresented litigant. The Court acknowledged that it is within the Board’s powers to relax the strict rules of evidence (as it did here) in order to make the hearing process more user-friendly. Unfortunately, if an unrepresented litigant is permitted to call whatever evidence he wants, whether relevant or not, the effort to be fair to him might have exactly the opposite effect. The Complainant had been permitted to call as his own witness the officer about whom he was complaining, as well as several other police witnesses who cannot be expected to help him build his case. He also called several witnesses, including the Complainant in the alleged sexual assault, in part to prove what was already a matter of record. The Court held that the consequences to the Complainant in calling these witnesses was significant in that the opposing side received considerable advantage in the presentation of its defence and, through cross-examination of the Complainant’s witnesses, was able to elicit prejudicial evidence regarding the Complainant’s character and lifestyle.
The Court held that the Board had a duty to assist the Complainant on some key procedural issues common to all hearings and that much of the difficulty that presented in this case might have been avoided if the Board had conducted a meaningful pre-hearing conference with the parties which would have had, as its goal, the promotion of a fair and expeditious hearing.
In proceedings where there is an unrepresented party, a trier of fact is required to provide some measure of assistance in order to ensure that the hearing is fair. However, a trier of fact must not be an advocate for the unrepresented party and cannot be an advocate while maintaining impartiality. The Board’s duty is to ensure that the hearing is fair in all the circumstances. The Court cautioned that adjudicators must not cross the line between adjudication and advocacy. Procedural fairness does not and cannot require the Board to intervene in the tactical and strategic elements of the case made by the parties.
In this case, the Chair provided the Complainant with no assistance by way of explaining basic principles of procedure. It had not been fair to allow the Complainant to present his case without giving him an explanation of the format of the hearing and the basic principles of direct and cross-examination.
The Court rejected the Respondent’s argument that the right to a fair hearing extends only to the accused and not to the Complainant. The Complainant was as entitled as the police officer to a fair hearing and, while the police officer had a lot at stake, so did the Complainant, having been wrongly incarcerated for two days because of what he alleged amounted to an abuse of police power. He was entitled to have the complaint fairly heard and, if substantiated, to have someone held accountable.
In the result, the Court set aside the Board’s decision and ordered a re-hearing before a differently constituted board.
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