This proceeding was a petition for judicial review to determine whether a constable of the Vancouver Police Department (“VPD”) must comply with the requests made by an investigating officer of the Office of the Police Complaints Commission (“PCC”) pursuant to s. 101 of the Police Act, R.S.B.C. 1996, c. 367 (the “Act”). The Court held that s. 101 of the Act was mandatory and did not provide the constable with discretion. The constable was ordered to comply with the requests made by the PCC.
Administrative Law – Compliance with legislation – Employment law – Judicial Review – Mandamus – Police – Police Complaint Commissioner – Powers to investigate – Procedural requirements and fairness – Professional misconduct or conduct unbecoming – Remedies
Kyle v. Stewart,  B.C.J. No. 769, 2017 BCSC 522, British Columbia Supreme Court, March 30, 2017, H. MacNaughton J.
A complaint was submitted to the PCC alleging that a constable of the VPD was involved in an off-duty incident in which he used force during the arrest of the complainant. The VPD conducted an interview of the constable with his union representative. After determining that there was a conflict of interest, the PCC determined that it was in the public interest to transfer the investigation to the Transit Police. A staff sergeant of the Transit Police was appointed as the investigator.
The staff sergeant interviewed the constable with his union representative. The staff sergeant requested that the constable attend for a further interview to clarify comments and certain evidentiary discrepancies. The constable refused to attend for a further interview contending that he complied with the Act. The staff sergeant informed the constable that there was new evidence that directly contradicted his statements and she was obliged to put that evidence to him. The constable refused repeating that he complied with the Act. The constable refused to attend for two subsequent interviews.
The Court was tasked with determining whether there is a duty of procedural fairness with respect to an investigation under the Act and, if so, the scope of that duty. The Court was also asked to assess whether employment or labour relations principles were applicable. Finally, the Court was charged with determining an appropriate remedy.
The Court’s Findings
The Court considered the legislative intent of section 101 of the Act finding that it “imposes a statutory duty on members to cooperate with investigators conducting an investigation under Part 11 of the Act.” (at para. 69). The Court held that “the statutory scheme does not give [the constable] discretion to decline to attend an interview when requested to do so. The duty to attend is mandatory, not permissive” (at para. 70).
With respect to whether there is a duty of procedural fairness, the court followed the jurisprudence and concluded that the role of the PCC investigator was investigative, not adjudicative, and that the investigation was preliminary in nature. As a result, the constable was afforded a minimal duty of fairness, which was met in this case.
The constable argued that section 101 of the Act must be interpreted in accordance with employment or collective agreement principles. The Court rejected this argument concluding that the Act clearly differentiates between internal discipline matters and misconduct matters. The clear language of the Act did not allow for employment or labour relations policies to modify the mandatory obligations the Act imposed on the constable.
The Court concluded that the constable deliberately breached his statutory duty to comply with the PCC and the PCC exhausted all means under the Act to have the constable comply. Therefore, it was appropriate for the Court to make an order in the nature of mandamus under section 2 of the Judicial Review Procedure Act, R.S.B.C. 1996 c. 241 to compel the performance of a statutory duty owed by the constable to the PCC investigator under section 101(2) of the Act. In the result, the Court ordered that the constable attend a further interview with the PCC.
This case was digested by Jackson C. Doyle 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.
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