Seven-year delay in disciplinary process constitutes abuse of process

Administrative law – Decisions reviewed – Police Commission – Judicial review – Procedural requirements and fairness – Police – Disciplinary proceedings – Public hearings

Diaz-Rodriguez v. British Columbia (Police Complaints Commissioner), [2018] B.C.J. No. 3290, 2018 BCSC 1642, British Columbia Supreme Court, September 27, 2018, J.S. Harvey J.

The petitioner, Constable Diaz-Rodriguez, was a member of the South Coast British Columbia Transportation Authority Police Service.

The Constable became subject to disciplinary proceedings under the Police Act, R.S.B.C. 1996, c. 367 (the “Act”), in relation to an incident that occurred in August 2011, involving the use of force. In respect of that incident, the Police Complaints Commissioner (the “Commissioner”) initiated a public hearing process.

Under the Act, the mandate of the Commissioner is to act in the public interest to maintain confidence in police matters. As part of that mandate, the Commissioner oversees disciplinary matters involving alleged police misconduct in order to ensure the allegations are dealt with appropriately in the public interest, in accordance with the Act.

The Constable sought judicial review, arguing the public hearing ought to be quashed because of (a) inordinate delay or (b) on the basis it was unreasonable to order the public hearing.

The investigative process began in August 2011, but due to various procedural causes of delay, a public hearing was not scheduled to complete until October 2018. That delay gave rise to the petitioner asserting prejudice, on the basis of fairness to the hearing process and on the basis of abuse of process.

In respect of fairness, video depictions of the incident and contemporaneous witnesses statements were available. The Constable argued the public hearing would “uncover nothing new,” given all of the evidence necessary to decide the matter was available within weeks or months of the incident; however, that argument – seemingly directed at the utility of a public hearing, rather than fairness – failed to establish prejudice resulting from the delay. The Court found the delay had not caused prejudice to the hearing process.

In respect of abuse of process, the Constable had been relegated to demeaning, administrative tasks throughout the disciplinary process. He asserted a lengthy absence from operational duties had jeopardized his career prospects and threatened his continued employment. The Court characterized the delay of seven years as “extraordinary,” finding the duration of the delay exacerbated stress to the Constable to the point of being unreasonable, constituting an abuse of process, and bringing the disciplinary process under the Act into disrepute.

The Court allowed the judicial review and quashed the order in respect of the public hearing.

This case was digested by Joel A. Morris, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Joel A. Morris at jmorris@harpergrey.com.

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