The appellant, a member of the Fredericton Police Force was caught stealing while in the United States. She was never convicted, but the charges were not dismissed either. At the same time as this was unfolding, a formal complaint was initiated through her employer. The matter proceeded to arbitration where she was dismissed from her employment with the Fredericton Police Force, the arbitrator citing her breach of trust as the primary reason for the termination. The appellant sought to quash the arbitrator’s decision on judicial review for both procedural and substantive reasons.

Administrative law – Decisions reviewed – Arbitration Board – Professional governance and discipline – Judicial review – Appeals – Standard of review – Reasonableness – Police – Professional misconduct or conduct unbecoming

Campbell v. Fredericton (City) Police Force, [2018] N.B.J. No. 197, 2018 NBCA 54, New Brunswick Court of Appeal, September 6, 2018, J.C.M. Richard, B.V. Green and B.L. Baird JJ.A.

The appellant, Cherie Campbell, was a member of the Fredericton Police Force. On January 6, 2016, she was dismissed by an arbitrator after her conduct complaint proceeded to arbitration. Ms. Campbell sought to quash the arbitrator’s decision on judicial review before the Trial Division of the Court of Queen’s Bench, but was unsuccessful. She appealed the dismissal of her application to the Court of Appeal.

The incident which ultimately led to Ms. Campbell’s dismissal occurred on December 2, 2014. Ms. Campbell was observed leaving a retail establishment in the State of Maine with certain items of merchandise for which she had not paid. The next day, a formal conduct complaint was issued by the Chief of the Fredericton Police Force alleging various violations of the Code of Professional Conduct under the Police Act, S.N.B. 1977, c. P-9.2. As this process unfolded, her criminal charges proceeded through the court system in Maine. Ultimately, the matter proceeded to trial in front of a jury. However, the jury was unable to reach a verdict and the authorities in Maine never pursued the matter further.

Despite this, the arbitrator in the conduct complaint said that Ms. Campbell ought to be dismissed from her employment. There were a variety of reasons set out for this decision but two were central. First, the arbitrator found that Ms. Campbell attempted to use her position as a police officer to gain a favourable advantage after she was caught stealing. Specifically, there was evidence presented that she told the Maine authorities they ought to exercise their discretion because she was a police officer. Second, the arbitrator concluded that dismissal was the only appropriate remedy because of the significant breach of trust resulting from Ms. Campbell’s conduct. The main arguments advanced by Ms. Campbell on appeal related to these two findings.

The Court of Appeal began by noting that its role on appeal was to decide whether the court below identified the appropriate standard of care and applied it correctly. With respect to whether Ms. Campbell attempted to use her position as a police officer to influence the outcome of her situation, the Court of Appeal noted there was ample evidence to support this finding. However, Ms. Campbell’s argument was more nuanced. She argued the judge erred because she made her own independent finding on this issue, rather than confining her analysis to whether the arbitrator’s decision was reasonable. While the Court of Appeal was sympathetic to this and noted that the trial judge may have gone “beyond the accepted parameters of the judicial review function”, the court concluded the judge was simply “adding her voice to that of the arbitrator” and this did not taint the overall analysis. No doubt influencing this conclusion was the fact there was ample evidence to show that Ms. Campbell did assert her status as a police officer on a number of occasions when she was originally confronted by the Maine authorities.

As for the appropriateness of the sanction, the Court of Appeal held that, considering the evidentiary record and the standard to which police officers are held (a higher standard), it could not be said that termination of Ms. Campbell’s employment fell outside of the range of acceptable and rationale outcomes. Unlike the previous issue, the judge confined her analysis to reviewing the arbitrator’s determination, which she found reasonable. The Court of Appeal found there was no error in this approach and, unsurprisingly, was reluctant to interfere with the arbitrator’s decision in issuing the sanction.

For these reasons, Ms. Campbell’s appeal was dismissed.

This case was digested by Adam R. Way, 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 Adam R. Way at away@harpergrey.com.

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