A First Nations Constable sought judicial review of his dismissal from Police Service arising from complaints of sexual misconduct. The Court quashed the Police Chief’s decision, finding that the Applicant was a public office holder and therefore he was owed a duty of fairness prior to his dismissal, which he had not received.

26. December 2006 0

Administrative law – Decisions of administrative tribunals – Police – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Sexual relations – Penalties and suspensions – Aboriginal issues – Employment law – Termination of employment – Public officer – Labour law – Statutory provisions – Judicial review – Procedural requirements and fairness – Remedies – Certiorari

McDonald v. Anishinabek Police Service, [2006] O.J. No. 4210, Ontario Superior Court of Justice – Divisional Court, October 13, 2006, G.D. Lane, S.E. Greer and J.L. Lax JJ.

The Applicant was enrolled in a course at the Ontario Police College, having earlier accepted an offer of probationary employment with the Respondent Police Service as a First Nations Constable. The College learned of a number of complaints regarding the Applicant’s alleged sexual misconduct and an investigation followed. The following day the Applicant was taken from class to a room and “cross-examined” by a staff officer of the College for about 20 minutes with another officer present who was a member of the Respondent Police Service. The Applicant denied the allegations of misconduct.

The College then sought immediate instructions from the Police Chief, while making it clear that the College wanted the Applicant off its grounds that day. The Chief concluded, without speaking to the Applicant, that the complaints of sexual misconduct had been adequately investigated, that the Applicant had been provided with a sufficient opportunity to respond, that his denials were not credible, and that the appropriate response was immediate discharge.

The Applicant applied for judicial review to the Divisional Court. He argued that the provisions of the Police Services Act applied to his discharge and that this matter was properly before the Court as an application for judicial review under the Judicial Review Procedures Act. Conversely, the Respondent argued that First Nations Constables, although appointed under the Police Services Act, are not governed by that Act in matters of discipline and discharge, and this was a labour relations matter, over which the Canada Industrial Labour Relations Board had exclusive jurisdiction.

There were four sources of “law” available, each of which had to be considered: the Canada Labour Code, the Code of Conduct, the Tripartite Agreement, and the Police Services Act, all of which affect the issue of the proper handling of the dismissal of a First Nations Constable. The Applicant’s main submission was that there are procedural obligations imposed on the Chief of Police under the Police Services Act when he intends to discharge a police officer employed by the Police Service and that discharge is a power that can only be exercised by the Commissioner of the Ontario Provincial Police under section 54 of the Act. The Court agreed that under section 54, the Ontario Civilian Commission on Police Services and the Commissioner of the Ontario Provincial Police had the power to appoint and terminate First Nations Constables. Termination can only occur after consultation of the Police governing authority. The Police Chief cannot dismiss a First Nations Constable. The Act provides a minimal opportunity to be heard for a First Nations Constable facing termination of his appointment.

While the intention of the Tripartite Agreement was to create autonomous police forces on Indian lands, the provisions of section 54 provide modest limitations on that autonomy, consistent with the responsibility of the province for policing services. Appointment of a First Nations Constable is by the Commissioner, but if the responsibilities of the appointee include policing on a reserve, the Council must agree and the Police Service is the employer. Dismissal of a First Nations Constable is also by the Commissioner who must provide reasonable information and an opportunity to reply. Thus, the Police Chief can terminate the employment of a First Nations Constable but only the Commissioner can terminate the status of being a First Nations Constable.

In this case, the document appointing the Applicant as a First Nations Constable expressly provided that the appointment was “so long as employed by the APS (the Respondent)”. The practical effect of the dismissal by the Police Chief was to end the appointment as well. The Court concluded that the “so long as employed” clause is a lawful and effective delegation of the Commissioner’s authority to the Police Chief, which necessarily carries with it the obligation to provide the information and the opportunity to be heard in accordance with section 54.

The Police Chief did not disclose to the Applicant the allegations being made, and the Police Service’s solicitors expressly refused to do so later. The Applicant had no opportunity to address the Police Chief to address allegations of which he was kept in ignorance except for the limited information given at the College. On this reasoning, the Court had jurisdiction to set aside the statutory decision the Police Chief made as the Commissioner’s delegate and restore the Applicant’s status as a First Nations Constable.

Because the Applicant was left with a status but no livelihood, the Court turned to the larger question of the scope of certiorari. The availability of the prerogative Writs was not circumscribed by the Judicial Review Procedures Act and the Court’s jurisdiction to issue such relief was determined by the scope of the prerogative writs at common law.

The scope of judicial review was not limited to boards or bodies constituted under statute and extended to bodies established by the exercise of prerogative power. The prerogative writs extended to apply to bodies constituted pursuant to prerogative powers, if the decision in question affected the rights or legitimate expectations of an individual. In this case, the decision to dismiss the Applicant was a decision that directly affected a specific individual’s rights and was therefore a decision that was justiciable. If the Respondent Police Service was established pursuant to a prerogative power, its actions were reviewable by the Divisional Court. Under the broad view, the Police Service was established by way of a Tripartite Agreement between the federal and provincial governments and certain First Nations. The Agreement was entered into by the executive branch of government. Thus, as establishing the Police Service as an act of the executive branch of government, it was subject to judicial review.

Even if the Police Service was not a body constituted pursuant to prerogative powers, the prerogative Writs are available as a general remedy for supervision of the machinery of government. The Police Service was performing a function (the enforcement of the laws of Ontario and Canada) that was very public in nature. The decision to terminate the Applicant’s employment was an administrative and specific decision that affected his individual rights and interests. If the Applicant is a public officer, and not a mere employee, then a duty of fairness is owed.

Public office holders, in contrast to “employees” are entitled to procedural fairness as a prelude to any dismissal and the affected person is entitled to apply to a Court for judicial review of the decision. A person as a public officer was where his or her employment encompasses “some elements of a public nature” or has “a strong statutory flavour”. Police officers have traditionally been held to be public officers. In this case, there is no reasonable basis on which to distinguish the Applicant’s appointment as a First Nations Constable from the status enjoyed by police officers. Even if he was not a public officer, by virtue of his status as a First Nations Constable, he was one because his employment had considerable elements of a public nature, authority and trust, and his duties included enforcing the laws of Ontario and Canada. He was therefore a public office holder and a duty of fairness was owed prior to his dismissal.

It was well established in the jurisprudence that the duty to act fairly included the opportunity to know the case against you and to be given a reasonable opportunity to respond. In the circumstances, the Applicant had been denied procedural fairness. In the result, the Court granted the application for certiorari and quashed the decision to dismiss the Applicant and terminate his status as a First Nations Constable.

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