Administrative law – Decisions of administrative tribunals – Commission of Inquiry – Investigations – Jurisdiction to issue a complaint – Police – Royal Canadian Mounted Police – Professional misconduct / conduct unbecoming – Judicial review – Fresh evidence – admissibility – Standard of review – Correctness – Reasonableness simpliciter – Procedural requirements and fairness
Canada (Royal Canadian Mounted Police) v. British Columbia (Commissioner),  B.C.J. No. 2613, 2009 BCCA 604, British Columbia Court of Appeal, December 29, 2009, M.E. Saunders, E.C. Chiasson and H. Groberman JJ.A.
The Appellants are members of the Royal Canadian Mounted Police (the “RCMP”). The Officers are part of a group of four officers (the “Four Officers”) that responded to a call (along with one other officer) at the Vancouver International Airport (the “YVR”). One of the Four Officers deployed a conducted energy weapon towards Mr. Dziekanski. Mr. Dziekanski died and the Province of British Columbia appointed Thomas R. Braidwood, Q.C. as a Commission to inquire into the death.
The Commissioner heard evidence from 87 witnesses and, on or about April 30, 2009, the Four Officers each received a document titled “Notice of Misconduct” (the “Notices”). Each of the Notices were delivered confidentially to the Four Officers and, in general, alerted them to the fact that he may make certain findings (in respect of their conduct) that “may amount to misconduct within the meaning of s. 21 of the [Public Inquiry] Act”. The Notices also advised the Four Officers that it is possible other participants may “make one or more allegations of misconduct against you”. The Four Officers asked for particulars and the Commissioner ruled that the Notices were sufficiently particularized except in one respect and, on that issue, further particulars were provided. The Four Officers each applied to the Commissioner to quash their Notices and those applications were denied. The Four Officers then brought petitions for judicial review and Mr. Justice Silverman, of the British Columbia Supreme Court, dismissed those petitions. Three of the Four Officers (the “Officers”) brought the within appeal to the British Columbia Court of Appeal.
The Officers sought to adduce new evidence but those applications were summarily rejected.
The Officers contend that Mr. Justice Silverman erred in failing to quash the Notices because the Notices are beyond the jurisdiction of the Commissioner. There are two bases upon which this argument was made. The Court of Appeal dealt with each of these grounds of appeal on the basis of a correctness standard of review.
First, the Officers argued the Notices reflect an exercise in criminal law and are beyond the jurisdiction of a provincially appointed commission. The Notices indicated that the Commissioner would be determining whether the Officers committed a criminal offence. The Court rejected this ground of appeal because there are many relationships at issue in respect of the Officers’ conduct and there are many standards and consequences relating to their conduct. The use of the word “misconduct” was not particular to a specific relationship or standard. It is common language used to describe potential findings and does not amount to making a public inquiry a criminal investigation. In addition, the Commissioner’s ruling, in response to the application to quash the Notices, demonstrated his awareness of the applicable constitutional limitations.
Second, the Notices are an interference with the management or administration of a federally created agency, the RCMP. The Court held that the Commissioner, in addressing the application to quash, once again demonstrated the limitations on provincial authority to interfere with RCMP administration. The Public Inquiry Act expressly permits a commissioner to report on misconduct. The Commissioner’s inquiry relates to public confidence in the administration of justice and not merely to the narrow issue of the conduct of the Officers. There was insufficient indication that the Commissioner was focusing narrowly on the conduct of the Officers and not the broader issues concerning the administration of justice.
The Officers also argued that the Commissioner failed to particularize the allegations in the Notices. Mr. Justice Silverman, in the Court below, held that the appropriate standard of review was reasonableness and that the Commissioner’s ruling was correct, let alone reasonable. The Court of Appeal commented on the difficulty in using the language of standard of review (“reasonableness” and “correctness”) when considering issues of procedural fairness. In this case, there is a statutory provision requiring notices of misconduct to be provided and the real question is whether the notice is sufficient to provide the procedural fairness required. The Court concluded that there is a high degree of procedural fairness owed in these circumstances but that duty was met in the Notices issued by the Commissioner. The Officers testified at length and the Notices were sufficient to make it clear which areas of their evidence were likely to attract analysis.
The appeal was dismissed
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at email@example.com or review his biography at http://www.harpergrey.com..
To stay current with the new case law and emerging legal issues in this area, subscribe here.