Date: 20041101
Docket: T-2371-03
Citation: 2004 FC 1506
BETWEEN:
GÉRARD THÉRIAULT
Applicant
and
THE APPROPRIATE OFFICER OF C DIVISION
OF THE ROYAL CANADIAN MOUNTED POLICE
and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
Lemieux J.:
A. Introduction and facts
[1] This is an application for judicial review of the decision of the Commissioner of the Royal Canadian Mounted Police (the RCMP) dismissing the applicant's appeal of the disciplinary sanction imposed by an adjudication board, namely, the obligation to resign from the RCMP within 14 days, failing which he would be dismissed.
[2] The issue raised by this application has to do with the prescription or limitation period under the Royal Canadian Mounted Police Act (the Act), and is as follows:
[translation] Does the initiation on October 23, 2000, pursuant to subsection 43(1) of the Act, by Commanding Officer Lange of "C" Division of the Royal Canadian Mounted Police, of a hearing by an adjudication board to investigate two alleged contraventions of the RCMP Code of Conduct by Gérard Thériault, a member of the RCMP since 1981, comply with the provisions of subsection 43(8) of the Act?
[3] In subsections 2(2) and 2(3) of the Act, "appropriate officer" means such officer as is designated by the Commissioner in respect of a member for the purposes of the Act. Under section 4 of the Commissioner's Standing Orders, it is the commanding officer of the division who has this role for the purposes of subsection 43(8) of the Act.
[4] Section 43 of the Act, under the heading "Formal Disciplinary Action", reads:
| Initiation 43. (1) Subject to subsections (7) and (8), where it appears to an appropriate officer that a member has contravened the Code of Conduct and the appropriate officer is of the opinion that, having regard to the gravity of the contravention and to the surrounding circumstances, informal disciplinary action under section 41 would not be sufficient if the contravention were established, the appropriate officer shall initiate a hearing into the alleged contravention and notify the officer designated by the Commissioner for the purposes of this section of that decision.
Adjudication board
(2) On being notified pursuant to subsection (1), the designated officer shall appoint three officers as members of an adjudication board to conduct the hearing and shall notify the appropriate officer of the appointments. Qualifications
(3) At least one of the officers appointed as a member of an adjudication board shall be a graduate of a school of law recognized by the law society of any province.
Notice of hearing
(4) Forthwith after being notified pursuant to subsection (2), the appropriate officer shall serve the member alleged to have contravened the Code of Conduct with a notice in writing of the hearing, together with
(a) a copy of any written or documentary evidence that is intended to be produced at the hearing;
(b) a copy of any statement obtained from any person who is intended to be called as a witness at the hearing; and
c) a list of exhibits that are intended to be entered at the hearing.
Contents of notice
(5) A notice of hearing served on a member pursuant to subsection (4) may allege more than one contravention of the Code of Conduct and shall contain
(a) a separate statement of each alleged contravention;
(b) a statement of the particulars of the act or omission constituting each alleged contravention;
(c) the names of the members of the adjudication board; and
(d) a statement of the right of the member to object to the appointment of any member of the adjudication board as provided in section 44.
Statement of particulars
(6) Every statement of particulars contained in a notice of hearing in accordance with paragraph (5)(b) shall contain sufficient details, including, where practicable, the place and date of each contravention alleged in the notice, to enable the member who is served with the notice to determine each such contravention so that the member may prepare a defence and direct it to the occasion and events indicated in the notice.
Restriction
(7) No hearing may be initiated by an appropriate officer under this section in respect of an alleged contravention of the Code of Conduct by a member if the informal disciplinary action referred to in paragraph 41(1)(g) has been taken against the member in respect of that contravention.
Limitation period
(8) No hearing may be initiated by an appropriate officer under this section in respect of an alleged contravention of the Code of Conduct by a member after the expiration of one year from the time the contravention and the identity of that member became known to the appropriate officer.
(9) A certificate purporting to be signed by an appropriate officer as to the time an alleged contravention of the Code of Conduct by a member and the identity of that member became known to the appropriate officer is, in the absence of evidence to the contrary, proof of that time without proof of the signature or official character of the person purporting to have signed the certificate. [Emphasis added]
R.S., 1985, c. R-10, s. 43; R.S., 1985, c. 8 (2nd Supp.), s. 16.
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Convocation 43. (1) Sous réserve des paragraphes (7) et (8), lorsqu'il apparaît à un officier compétent qu'un membre a contrevenu au code de déontologie et qu'eu égard à la gravité de la contravention et aux circonstances, les mesures disciplinaires simples visées à l'article 41 ne seraient pas suffisantes si la contravention était établie, il convoque une audience pour enquêter sur. la contravention présumée et fait part de sa décision à l'officier désigné par le commissaire pour l'application du a présent article.
Constitution d'un comité d'arbitrage
(2) Dès qu'il est avisé de cette décision, l'officier désigné nomme trois officiers à titre de membres d'un comité d'arbitrage pour tenir l'audience et en avise l'officier compétent.
Conditions d'admissibilité
(3) Au moins un des trois officiers du comité d'arbitrage est un diplômé d'une école de droit reconnue par le barreau d'une province.
Avis d'audience
(4) Dès qu'il est ainsi avisé, l'officier compétent signifie au membre soupçonné d'avoir contrevenu au code de déontologie un avis écrit de l'audience accompagné des documents suivants :
a) une copie de la preuve écrite ou documentaire qui sera produite à l'audience;
b) une copie des déclarations obtenues des personnes qui seront citées comme témoins à l'audience;
c) une liste des pièces qui seront produites à l'audience.
Contenu de l'avis
(5) L'avis d'audience signifié à un membre en vertu du paragraphe (4) peut alléguer plus d'une contravention au code de déontologie et doit contenir les éléments suivants : a) un énoncé distinct de chaque contravention alléguée;
b) un énoncé détaillé de l'acte ou de l'omission constituant chaque contravention alléguée;
c) le nom des membres du comité d'arbitrage;
d) l'énoncé du droit d'opposition du membre à la nomination de tout membre du comité d'arbitrage comme le prévoit l'article 44.
Énoncé détaillé
(6) L'énoncé détaillé visé à l'alinéa (5)b) doit être suffisamment précis et mentionner, si possible, le lieu et la date où se serait produite chaque contravention alléguée dans l'avis d'audience, afin que le membre qui en reçoit signification puisse connaître la nature des contraventions alléguées et préparer sa défense en conséquence.
Restriction
(7) L'officier compétent ne peut convoquer une audience en vertu du présent article relativement à une contravention au code de déontologie censément commise par un membre à qui la mesure disciplinaire simple visée à l'alinéa 41(1)g) a déjà été imposée à l'égard de cette contravention.
Prescription
(8) L'officier compétent ne peut convoquer une audience en vertu du présent article relativement à une contravention au code de déontologie censément commise par un membre plus d'une année après que la contravention et l'identité de ce membre ont été portées à sa connaissance.
(9) En l'absence de preuve contraire, un certificat présenté comme signé par l'officier compétent et faisant état du moment où ont été portées à sa connaissance une contravention au code de déontologie censément commise par un membre et l'identité de ce dernier, constitue une preuve de ce moment sans qu'il soit nécessaire d'établir l'authenticité de la signature ni la qualité du signataire. [je souligne]
L.R. (1985), ch. R-10, art. 43; L.R. (1985), ch. 8 (2e suppl.), art. 16. |
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[5] The notice of initiation of an adjudication board issued by Commanding Officer Lange alleges two contraventions by the applicant of the RCMP Code of Conduct: (1) having acted as night manager of the Bellevue bar and restaurant, which was frequented by biker gangs, and (2) having attempted to facilitate a drug transaction.
[6] In very simple terms, the applicant argues that the initiation of a hearing by Commanding Officer Lange was out of time on the ground that well before October 23, 1999, Superintendent Sugrue, the officer in charge of criminal investigations (the OCCI) of "C" Division had been informed of the contraventions alleged against him. Superintendent Sugrue could have and should have issued the initiation of a hearing under subsection 43(1) of the Act when he replaced Commanding Officer Lange pursuant to section 8 of the RCMP Regulations, during several periods in 1999, when the latter was on vacation or absent from work (from May 25 to June 5, 1999, from June 11 to June 21, 1999, from August 16 to August 18, 1999, from August 19 to August 30, 1999, from September 11 to September 16, 1999 and from November 16 to December 4, 1999). The applicant contends that Superintendent Sugrue was therefore the appropriate officer and interim commanding officer of "C" Division to which he was attached for the purposes of section 43 of the Act.
[7] I will summarize briefly the facts that are contained either in the applicant's record or in the testimony of the RCMP officers concerning the prescription motion filed by Mr. Thériault:
1. On March 18, 1999, Corporal Pierre Verdun sent a memorandum to his superior, Staff Sergeant (SST) Bolduc entitled [translation] "Information received on RCMP member". This note reads:
[translation] Const. Roberge of the Anti-Gang division of the SPCUM [Service de Police de la Communauté urbaine de Montréal - Police Department of the Montréal Urban Community] advises me that (suspended) RCMP member Gérard Thériault is currently manager at the Bellevue bar restaurant.... This bar is controlled by the Rockers MC and is a hangout for criminal elements. A number of incidents are connected with this bar, moreover. Const. Roberge further advises me that Thériault seems to be hostile to the police, and has even shut the door in the face of investigators from the morality squad of the SPCUM while they were going about their duties.
2. This memorandum was sent by SST Bolduc to Superintendent Fournier, who was then the responsible officer in the divisional intelligence services for "C" Division, having a line relationship with the OCCI. Superintendent Fournier sent Cpl. Verdun's memorandum to the OCCI on March 18, 1999, with this handwritten notation:
[translation] (OCCI sent 99-03-18) SST Bolduc advises me that other incidents of the kind involving G. Thériault will soon be communicated to us; i.e. as soon as the SPCUM officers find the time to report.
3. On either that same afternoon of March 18 or on March 19, 1999, a meeting was held at the OCCI's office, which was attended by the OCCI, Superintendent Dion, an OCCI deputy responsible for criminal investigations in the fight against drugs and other offences under federal legislation, Superintendent Fournier and SST Walter Wafer of "C" Division Special Investigations. During this meeting, the OCCI instructed Walter Wafer to do the follow-up with the SPCUM. In his report of this meeting, Walter Wafer writes: [translation] "It was agreed that this investigation would be transferred to our sector and that before beginning it, all of the information in the possession of the SPCUM is to be gathered". Generally speaking, "C" Division Special Investigations are involved when there is an investigation concerning RCMP members (Applicant's Record, pages 24, 49 and 80).
4. On March 19, 1999, Walter Wafer contacted Lieutenant Mario Plante of the SPCUM. The report by SST Wafer indicates that he was informed that it could be a week before all of the documents would be available but that nevertheless Lieutenant Plante informed him that his division of the SPCUM intended to carry out an undercover operation targeting the Bellevue Bar using a double agent. SST Wafer immediately notified Superintendent Dion (Applicant's Record, page 24).
5. On April 23, 1999, SST Wafer and SST Martel met with Lieutenant Plante, who informed them of the progress of the undercover operation at the Bellevue Bar, the place where Const. Thériault was working. In his report of that day, SST Martel writes:
[translation] The undercover officer went back a second time to the same bar where she met with Const. Gérard Thériault.... During this meeting, she excused herself on the pretext that she had to make a call and when she returned explained to Const. Gérard Thériault... that she had been unable to contact her supplier and that she wanted some cocaine. Const. Gérard Thériault ... then approached his co-workers to try to get her some, but his efforts were unsuccessful.
SST Martel adds that Lieutenant Plante will provide the RCMP with a detailed report on the conversations that took place between Const. Thériault and the undercover officer and notes that Lieutenant Plante asked the RCMP to assess whether it contemplated any other options in this matter, before submitting his final report (Applicant's Record, pages 25-26).
6. Sergeant Hardy of "C" Division Special Investigations replaced SST Wafer. On June 23, 1999, Sergeant Hardy met with Lieutenant Plante, who gave him the notes of the double agent.
7. On July 27, 1999, Sergeant Hardy saw M.R.S. Couture of Internal Investigations [translation] "and I had him read the notes of the CUM double agent. Couture advised me that in his opinion he has enough information for a Part Four investigation to be opened by their department. However, Couture advised me that the investigation request should come from the officer responsible for Thériault, in this case Inspector Bernard" [Inspector Bénard]. In his report, investigator Hardy states that on the same day he tried to contact Inspector Bénard at his office but that he had left on vacation until August 9, 1999. He so advised his supervisor SST Martel, who [translation] "will take steps to meet with Bernard [Bénard] when he returns from leave".
8. An internal investigation was opened by the RCMP in late summer of 1999 into the alleged activities of Const. Thériault at the Resto-Bar Bellevue. Chief Superintendent Sugrue testifies that he had no connection with internal affairs, which were the responsibility of the Headquarters at Ottawa and thus that he had never discussed with Commanding Officer, now Assistant Commissioner Lange, either the internal investigation or its results. He also testifies that on or about December 3, 1999, the internal investigation came to an end (Applicant's Record, pages 82 to 84).
9. Superintendent Sugrue testifies that he had discussed with Commanding Officer Lange some allegations that the applicant was acting as manager of the Bellevue Bar and that he had attempted to facilitate a drug transaction a few days after speaking with Commanding Officer Delorme of the SPCUM, on December 3, 1999. Judging by the comments by Sergeant Lyne Forgues, the internal affairs investigator, it appears that the SPCUM would not allow the double agent to testify (Applicant's Record, page 82).
10. Superintendent Sugrue also testifies that the OCCI or Special Investigations, which reports to the OCCI, never investigated the applicant's activities in connection with the Bar Bellevue; the officers Wafer, Martel and Hardy simply had some instructions to be the liaison with the SPCUM (Applicant's Record, page 83, transcript page 187).
[8] The Adjudication Board ordered Commanding Officer Lange to appear before it to testify about his knowledge of the investigation into the applicant's activities at the Resto-Bar Bellevue. He filed a certificate under subsection 43(9) of the Act. He testified that it was not until November 8, 1999, during a meeting with Mr. Andrégnette, who was acting as a representative of the appropriate officer, that he was informed of the facts concerning the allegations against the applicant. He further testified that he had not discussed them with Chief Superintendent Sugrue prior to that date.
[9] Commanding Officer Lange acknowledged that the chief superintendent had replaced him on several occasions as interim commanding officer and that he had completed an "Authorized Acting Appointment" form according to which the person who is appointed [Chief Superintendent Sugrue] may[translation] "perform the duties of the interim appointment as well as the permanent duties of the position" (Respondents' Record, page 19).
[10] He also testified that on that same day, November 8, 1999, he requested a preliminary report from the Internal Investigations Section in order to review the suspension issue, a matter that is not within the responsibility of the OCCI.
[11] I mentioned that the OCCI had testified that he had never informed Commanding Officer Lange of the SPCUM investigation concerning the applicant. The same applies to Walter Wafer (Applicant's Record, page 77), Superintendent Fournier (Applicant's Record, page 54) and Sergeant Hardy (Applicant's Record, page 71).
B. The decisions
(a) Adjudication Board
[12] The Adjudication Board examined three questions in relation to the limitation period under subsection 43(8) of the Act. First, it asked itself whether Commanding Officer Lange had been informed of the material facts of the alleged contraventions and the identity of the member at some date prior to October 23, 1999. The Board concluded, on the basis of the testimony of Commanding Officer Lange and Superintendent Sugrue, that Commanding Officer Lange had not been informed of the material facts of the contraventions before November 8, 1999, therefore within one year before his notice of initiation of a hearing.
[13] The second question examined by the Board was whether the applicant's notoriety (in 1999, he had been criminally charged and his trial was underway; he was subsequently acquitted) had not meant that it was more plausible that Commanding Officer Lange had been informed and that if he was not it was specifically in order to avoid starting the clock running on the limitation period. The Board characterized this contention as speculative and concluded that the existence in itself of other disciplinary and criminal proceedings did not allow the Board, as a trier of fact, to infer knowledge by the appropriate officer of the existence of a new criminal investigation and an ongoing internal investigation. The Board added that the internal investigators do not report to the commanding officer but rather to the Assistant Commissioner responsible for the Central Region.
[14] Finally, the Board asked itself whether the knowledge acquired by Superintendent Sugrue in his OCCI role automatically became the knowledge of the appropriate officer when he was acting as interim commanding officer of the Division. I quote the actual words of the analysis and conclusions of the Adjudication Board on this point:
[translation]
The office of appropriate officer is a creation of the Royal Canadian Mounted Police Act. The duties and obligations of the appropriate officer for disciplinary purposes are defined in Part IV of the Act. The office of appropriate officer has essentially been conferred on the commanding officers of the divisions under the Commissioner's Standing Orders (appropriate officer). The commanding officers have extensive responsibilities in respect of their divisions and are accountable for their administration. The Board considers that the regulatory appointment of the commanding officers as appropriate officer shows that they are also responsible for the administration of discipline at the division level. They are the ones, therefore, who have the responsibility to decide whether a hearing should be initiated in a particular case.
The appropriate officer must initiate an adjudication board when he or she is satisfied that certain conditions defined in subsection 43(1) are met. Subsections 43(7) and (8) limit the jurisdiction of the appropriate officer in this regard. Subsection 43(8) defines the limitation period and stipulates that "[n]o hearing may be initiated" by an appropriate officer in some cases, when the proceeding is out of time. The limitation period has been defined in greater detail by the External Review Committee and the Commissioner in a number of decisions, but the issue in the present case has not been raised until now. That issue is the following: When is the commanding officer, or his interim replacement, acting as an appropriate officer? More particularly, does the knowledge acquired in a member's usual duties become the knowledge of the appropriate officer if that member replaces the commanding officer on an interim basis?
Subsection 43(8) reads as follows:
...
The knowledge is knowledge of the material facts of the allegation and does not require a detailed knowledge of the conduct. Moreover, the Interpretation Act stipulates:
23(5) [sic] Where a power is conferred or a duty imposed on the holder of an office, the power may be exercised and the duty shall be performed by the person for the time being charged with the execution of the powers and duties of the office.
What this means is that the power or duty of the appropriate officer shall be exercised by the person for the time being charged with the execution of the powers and duties of that office. The knowledge of the material facts and the identity of the member under subsection 43(8) of the RCMP Act must therefore be acquired by the person "for the time being" stationed in the duties of appropriate officer. The Board concludes that this knowledge, to be knowledge that engages the limitation period, must be acquired by the person [translation] "then serving at the time when that knowledge was acquired by him". The form (investigation report, briefing note, discussion in a meeting, etc.) is of little importance, what counts is that the knowledge required to engage subsection 43(8) must be acquired by the person occupying the position of commanding officer at the very time when that person is in that position. Furthermore, it matters little whether the person in the position is the permanent incumbent thereof or the interim or temporary holder.
Chief Supt. Sugrue was not the acting commanding officer when he learned of the alleged conduct of Const. Thériault but rather was acting as OCCI and it is in that capacity that he was informed since Special Investigations reported to his command. He was not, therefore, the appropriate officer at that time, was not acting in that capacity, and his knowledge was the knowledge of the OCCI. When Chief Supt. Sugrue occupied the position of acting commanding officer, he was not informed of the contraventions of the Code of Conduct alleged against Const. Thériault as the appropriate officer and therefore did not have to perform that role. In other words, Chief Supt. Sugrue was not seized of the disciplinary case concerning Const. Thériault as commanding officer and at the time when he was commanding officer, and his knowledge of the facts was not knowledge as appropriate officer but rather as OCCI. This knowledge did not become the knowledge of the appropriate officer solely by virtue of his interim presence in that position. [Emphasis added]
(b) Recommendation of the External Review Board
[15] As required by subsection 45.15(1) of the Act, the record of appeal to the Commissioner was sent to the Royal Canadian Mounted Police External Review Committee (the External Committee).
[16] The External Committee asked itself whether the disciplinary proceedings had been brought within the statutory time limit. I quote from the analysis of the Chairperson of the External Committee:
[translation]
I agree with the conclusion of the Adjudication Board that what Chief Superintendent Sugrue knew about the allegations before he temporarily took command of the Division in May 1999 is of no impact on the calculation of the period for commencing disciplinary proceedings against the appellant. I would have concluded otherwise had the Division command post been vacant when Chief Superintendent Sugrue acted in that position. However, since he was not required to replace the commanding officer temporarily and for short periods only, the only information he had that would influence the calculation of the time limit under subsection 43(8) of the Act is the information that was intended for Asst. Commanding Officer Lange.
[13] As I had stated in the Pratt case, [2001] 12 D.A. (3rd) 111, it would be unacceptable if the limitation period could be pushed back by several months simply because the incumbent Division O/C was absent from his position or the post remained vacant. Pursuant to section 8 of the Regulations, there must always be a member who serves as Division O/C, which means that a member of the division will never be without an appropriate officer. As a general rule, if a member knows of an allegation that another member has contravened the Code of Conduct, this knowledge follows him when he takes command of the Division, even though he assumes those duties on an interim basis only. It is hard for me to see how a member who is aware of an allegation before becoming Division O/C could then wait more than a year before commencing some disciplinary proceedings in relation to that allegation solely because no one had discussed this allegation with him after he became the Division O/C. Any other conclusion would betray the intention behind subsection 43(8), in my opinion, since the expectation is that an appropriate officer will proceed rapidly when the issue is whether a member should be the subject of disciplinary proceedings.
However, I take a different view of the situation where an O/C leaves on vacation or must travel outside the Division as part of his duties, the effect of which is that "the next senior regular member on staff in respect of that post as determined by the order of precedence for regular members" automatically becomes the acting O/C until his return. The member who must thereby replace the O/C does not have exactly the same freedom of action as he would have if the post was vacant or he had become its permanent incumbent. For example, it would probably ill behove Chief Superintendent Sugrue, having been assigned [translation] "the duties of the temporary appointment and the permanent duties of the position", to bring disciplinary proceedings against the appellant, although he was entitled to do so. That is the kind of decision that it was up to Asst. O/C Lange to make, instead.
[15] Of course, this debate could have been avoided if, instead of taking close to 12 months before commencing disciplinary proceedings, the O/C had shown a bit more dispatch before initiating an adjudication board hearing. Unfortunately, it is all too often the case in the RCMP that this kind of decision is made only at the last minute. I repeat the comment that I made in the Brar case, (2003), 17 D.A. (3rd) 119, that it is not necessary that a Division O/C wait to receive the final report of the internal investigation before beginning the disciplinary process. [Emphasis added]
(c) Decision of the Commissioner
[17] By written decision dated November 19, 2003, Commissioner Zaccardelli dismissed the applicant's appeal. Concerning the limitation period, he said he was persuaded by the analysis of the Adjudication Board and adopted the following paragraph from the Board's decision:
[translation] What this means is that the power or duty of the appropriate officer shall be exercised by the person for the time being charged with the execution of the powers and duties of that office. The knowledge of the material facts and the identity of the member under subsection 43(8) of the RCMP Act must therefore be acquired by the person "for the time being" stationed in the duties of the appropriate officer. The Board concludes that this knowledge, to be knowledge that engages the limitation period, must be acquired by the person [translation] "then serving at the time when that knowledge was acquired by him". The form (investigation report, briefing note, discussion in a meeting, etc.) is of little importance, what counts is that the knowledge required to engage subsection 43(8) must be acquired by the person occupying the position of commanding officer at the very time when that person is in that position. Furthermore, it matters little that the person in the position is the permanent incumbent thereof or the interim or temporary holder.
C. ANALYSIS
(a) Standard of review
[18] I subscribe to the analysis by Mr. Justice Kelen, in his reasons for order in Stenhouse v. Canada (Attorney General), [2004] F.C. 375. Kelen J. was hearing an application for judicial review of a decision by the RCMP Commissioner adopting a recommendation of the External Review Committee that the applicant should resign from the RCMP within 14 days.
[19] According to Kelen J., applying a functional and pragmatic analysis, as required by the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, results in the following conclusion, which is expressed at paragraphs 21 and 22 of his reasons:
[21] In applying the functional and pragmatic approach to this case I conclude:
(1) Privative Clause - The RCMP Act contains a partial privative clause in subsection 45.16(7) which states:
A decision of the Commissioner on an appeal under section 45.14 is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal to or review by any court.
This "partial" privative clause means that deference is owed to the Commissioner's decision, as it is owed in other decisions before the Federal Court on judicial review under subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7. The amount of deference is determined by applying the following steps in the functional and pragmatic approach;
(2) Expertise of the Tribunal - The Commissioner has an obvious expertise relating to the RCMP, which favours deference on such matters;
(3) Purpose of the Legislation - The legislation recognizes the need for the RCMP to control its own disciplinary matters, as reflected in the three stage comprehensive disciplinary process set out in the RCMP Act. Moreover, RCMP members are not covered by the Public Service Employment Act, R.S.C. 1985, c. P-33. This favours deference to the Commissioner in making a disciplinary decision; and,
(4) Nature of the Question, Law, Fact or Mixed Law and Fact - The RCMP disciplinary process is largely fact driven. It is within the expertise of the Commissioner to make or review factual findings. Accordingly, great deference is owed to the Commissioner in dealing with questions of fact. On questions of law, the Court has greater expertise than the Commissioner, will grant no deference to the Commissioner, and will review the Commissioner's decision according to the standard of correctness. On questions of mixed law and fact, the Court will grant limited deference, and review the decision on a standard of reasonableness simpliciter, i.e. whether the decision is reasonable and can withstand a "somewhat probing examination".
[22] In this case, each of the issues identified by the applicant raises a question of mixed law and fact. Accordingly, the standard of review applicable to each of the issues is reasonableness simpliciter. Of course, if the decisions under review misstate the law, the Court would apply the correctness standard.
[20] In my opinion, the issue of whether the notice of initiation of a hearing issued by Commanding Officer Lange was out of time raises a question of mixed law and fact that should be determined according to the standard of reasonableness. On the other hand, a misinterpretation of the statute should be reviewed according to the correctness standard.
(b) Interpretation of the statute
[21] The approach to statutory interpretation favoured by the Supreme Court of Canada is laid down by Mr. Justice Iacobucci in Re Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, quoting with approval from the work by Elmer Driedger, who recognizes that statutory interpretation cannot be based solely on a literal reading of the legislation; as Driedger writes, at page 87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[22] Recently, in Glykis v. Hydro-Québec, [2004] SCC 60, Madam Justice Deschamps summarizes the approach to interpretation in the following words:
¶ 5 The approach to statutory interpretation is well-known (Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42). A statutory provision must be read in its entire context, taking into consideration not only the ordinary and grammatical sense of the words, but also the scheme and object of the statute, and the intention of the legislature. This approach to statutory interpretation must also be followed, with necessary adaptations, in interpreting regulations. [Emphasis added]
[23] One of the principles underlying this approach to interpretation is that of consistency of the statute. Each statutory provision functions harmoniously with the others.
(c) Discussion
[24] First of all, since the Act must be examined in its entirety, let us examine Part IV of the Act, entitled "Discipline". Although the Act is divided into eight parts, it is this Part that attracts our attention in particular in the context of resolving this litigation.
[25] Part IV begins at section 37, under the heading "Standards". Sections 38 and 39 deal with the Code of Conduct. Then section 40, under the heading "Investigation", sets down the applicable foundation for dealing with all alleged offences under the Code of Conduct. For convenience, we will reproduce the section:
| Investigation 40. (1) Where it appears to an officer or to a member in command of a detachment that a member under the command of the officer or member has contravened the Code of Conduct, the officer or member shall make or cause to be made such investigation as the officer or member considers necessary to enable the officer or member to determine whether that member has contravened or is contravening the Code of Conduct. |
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Enquête 40. (1) Lorsqu'il apparaît à un officier ou à un membre commandant un détachement qu'un membre sous ses ordres a contrevenu au code de déontologie, il tient ou fait tenir l'enquête qu'il estime nécessaire pour lui permettre d'établir s'il y a réellement contravention. |
| 40(2) Member not excused from answering (2) In any investigation under subsection (1), no member shall be excused from answering any question relating to the matter being investigated when required to do so by the officer or other member conducting the investigation on the ground that the answer to the question may tend to criminate the member or subject the member to any proceeding or penalty. |
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40(2) Obligation du membre de répondre (2) Au cours d'une enquête tenue en vertu du paragraphe (1), un membre n'est pas dispensé de répondre aux questions portant sur l'objet de l'enquête lorsque l'officier ou l'autre membre menant l'enquête l'exigent, au motif que sa réponse peut l'incriminer ou l'exposer à des poursuites ou à une peine. |
| 40(3) Answer not receivable (3) No answer or statement made in response to a question described in subsection (2) shall be used or receivable in any criminal, civil or administrative proceedings, other than a hearing under section 45.1 into an allegation that with intent to mislead the member gave the answer or statement knowing it to be false. |
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40(3) Non-recevabilité des réponses |
| (3) Les réponses ou déclarations faites à la suite des questions visées au paragraphe (2) ne peuvent être utilisées ni ne sont recevables dans des poursuites pénales, civiles ou administratives sauf au cours d'une audience tenue en vertu de l'article 45.1 portant sur l'allégation selon laquelle le membre a fait une telle réponse ou déclaration, qu'il savait fausse, dans l'intention de tromper.40(4) Definition of "detachment" (4) In this section and section 41, "detachment" includes such other unit of the Force as the Commissioner may, by rule, specify. R.S., 1985, c. R-10, s. 40; R.S., 1985, c. 8 (2nd Supp.), s. 16. [Emphasis added] |
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40(4) Définition de « détachement » (4) Au présent article et à l'article 41, « détachement » s'entend en outre de tout autre service de la Gendarmerie que peut désigner le commissaire par règle. L.R. (1985), ch. R-10, art. 40; L.R. (1985), ch. 8 (2e suppl.), art. 16. [je souligne] |
[26] As the text of subsection 40(1) indicates, the disciplinary investigation procedure under the Act is engaged when an "officer or... a member in command of a detachment" suspects that a member under his or her command has contravened the Code of Conduct. These suspicions, indicating an apparent contravention of the Code of Conduct, may emanate from members of the RCMP personnel or originate from an outside police force. In the case at bar, they originated with the SPCUM: on March 8, 1999, a member of the Anti-Gang Section of the SPCUM informed the RCMP of disturbing facts, at that point unsubstantiated, namely, that the applicant was a manager in a bar controlled by biker gangs.
[27] Secondly, the officer or member in command of a detachment who suspects that a member under his or her command has contravened the Code of Conduct causes an investigation to be made in order to determine "whether that member has contravened or is contravening the Code of Conduct" [in French, "s'il y a réellement contravention"]. In my opinion, given the ordinary and grammatical meaning of the word "réellement", which means, [translation] "in fact, in reality" (Le Petit Robert, 1992, p. 1636), and the internal functioning of the RCMP in disciplinary matters, the investigation must be conducted internally and, in a case such as the applicant's, this investigation was conducted by the Internal Investigation Section of the RCMP, which reports to Headquarters in Ottawa.
[28] Under the Act, if, after an internal investigation, the contravention appears confirmed, the enforcement process will depend on the type of disciplinary action contemplated by the responsible officer: either informal disciplinary action (mesure disciplinaire simple) or formal disciplinary action (mesure disciplinaire grave). This distinction is based on the scale of penalties to be imposed if the contravention is established.
[29] In a case of informal disciplinary action, it is the commanding officer of the detachment who imposes one of the penalties listed in paragraphs 41(1)(a) to (f) of the Act and the appeal procedure, similar to the grievance procedure, goes to the last level, the designated deputy commissioner.
[30] For informal disciplinary action, the Act does not provide any limitation period.
[31] The difference is obvious if the appropriate officer, "having regard to the gravity of the contravention and to the surrounding circumstances", thinks informal disciplinary action would not be sufficient. He shall then initiate a hearing by an adjudication board to conduct an investigation into the alleged contravention. It is the adjudication board that imposes the penalty where applicable. The limitation period applies and the appeal is made to the Commissioner of the RCMP.
[32] A certain analogy, albeit imperfect, may be drawn between the limitation period established by Parliament in subsection 43(8) of the Act and the statutory limitation period for a civil action where the discoverability principle may be involved.
[33] In civil law the prescription or limitation period for an action begins to run only when a person learns of the material facts that give rise to the action (see Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147). The purpose of this rule is to avoid the injustice of precluding an action before the person is able to sue (see Peixeiro v. Haberman, [1997] 3 S.C.R. 549, at paragraph 35).
[34] In my opinion, Parliament's intention in subsection 43(8) of the Act is to strike a balance between promptness and equity in the treatment of disciplinary cases by those responsible for disciplining members of the RCMP, and the sound administration of disciplinary justice provided by the Act, which includes the following considerations:
1. obligation to hold an internal investigation where it appears to an officer or to a member in command that a member under his or her command has contravened the Code of Conduct, to enable the officer or member to determine "whether that member has contravened or is contravening the Code of Conduct" (section 40);
2. obligation to hold an internal investigation to inform the appropriate officer concerning the gravity of the contravention and the surrounding circumstances so that he or she can determine objectively whether formal disciplinary action is necessary; and
3. obligation to hold an internal investigation to satisfy himself or herself of the existence of sufficient and credible prima facie evidence establishing the material facts of the contravention. In the case at bar, the double agent's testimony was essential in establishing the ingredients of the alleged contravention; Superintendent Sugrue was not certain of this testimony until December 3, 1999.
[35] It is undeniable that the degree of knowledge required by subsection 43(8) in order to start the limitation period running goes beyond mere unsubstantiated allegations emanating from an outside police department, and refers rather to the results of an investigation performed internally, as section 40 requires.
[36] At the hearing on this application for judicial review, the applicant's advisor did not seriously dispute the Adjudication Board's conclusion, upheld on appeal by the Commissioner, that Commanding Officer Lange had become aware of the material facts of the alleged contraventions only on November 8, 1999.
[37] A finding of this nature is one of fact that cannot be overlooked by this Court unless it was made in a perverse or capricious manner or without regard for the material before it, a requirement that is equivalent to the "patently unreasonable" standard of review.
[38] From my reading of the record of proceedings on the prescription motion, I find that the evidence in the record supported the conclusion of the Adjudication Board.
[39] Pursuant to subsection 43(8), the applicant's concern is the knowledge of Superintendent Sugrue who, during certain periods, held the position of acting appropriate officer. The applicant argues that Superintendent Sugrue cannot ignore the knowledge he has of the alleged conduct of Mr. Thériault when he becomes the appropriate officer, albeit on an interim basis.
[40] The Adjudication Board, upheld by the Commissioner on this point, rejected the applicant's contention on the ground that the OCCI was not acting as Division O/C when he was informed of the allegations.
[41] The External Review Committee was of the opinion that the applicant's appeal was without merit since, on the one hand, the knowledge that the OCCI had of the allegations did not become the knowledge of the appropriate officer when he took over the interim position for very short periods, and, on the other hand, that the position of "C" Division O/C was not vacant.
[42] This Court finds that this application for judicial review must be dismissed but for reasons that differ from those expressed by the Adjudication Board and the External Committee, although I agree with the Adjudication Board when it states that the limitation period runs from the knowledge required by subsection 43(8) and that "it matters little whether the person in the position is the permanent incumbent thereof or the interim or temporary holder".
[43] In my opinion, Superintendent Sugrue did not have the necessary level or degree of knowledge under subsection 43(8) to start the computation of the limitation period when he occupied the duties of appropriate officer between May and October of 1999.
[44] The documentary evidence and the testimony of Superintendent Sugrue show that, between March 18, 1999 and the late summer of 1999, the only information he had of the identity of the member and the nature of the alleged contraventions emanated from the SPCUM.
[45] It was not until mid-August that Inspector Bénard, the applicant's immediate superior and responsible officer, asked that an internal investigation be opened, precisely in order to determine "whether that member has contravened or is contravening the Code of Conduct", as provided in section 40 of the Act.
[46] Superintendent Sugrue testifies that he had "nothing to do" with the internal investigations oriented toward Ottawa (Applicant's Record, page 83; transcript, page 187) and that "C" Division had not investigated in Mr. Thériault's case (Applicant's Record, page 83; transcript, page 188).
[47] I would add that the preliminary results of the internal investigation conducted by the Central Region, concluding that there was sufficient evidence pertaining to the allegations, came directly to the office of Commanding Officer Lange as the appropriate officer on December 3, 1996, and that he learned of it three days later, on December 6, 1999.
(d) Conclusion
[48] I adhere to the respondent's thesis that [translation] "the appropriate officer must have had knowledge of all the facts that are necessary to enable him or her to decide with full knowledge of the case whether he or she should or should not initiate a disciplinary hearing" (Respondent's Record, page 78). In my opinion, O/C Lange was informed of all the necessary facts on November 8, 1999 and it was from that date that the one-year limitation period ran.
[49] I will add once again that it is of little importance whether the person occupying the duties of appropriate officer at the time when the information that is necessary to start the time running under subsection 43(8) is received is the permanent, interim or acting incumbent. However, on the facts, Superintendent Sugrue never had such knowledge.
[50] In view of the reasons for my decision, I need not rule on the other issues raised by the applicant.
[51] For all of these reasons, this application for judicial review is dismissed with costs.
"François Lemieux"
Judge
Ottawa, Ontario
November 1, 2004
Certified true translation
Suzanne M. Gauthier, C.Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2371-03
STYLE: GÉRARD THÉRIAULT
Applicant
and
THE APPROPRIATE OFFICER OF C DIVISION
OF THE ROYAL CANADIAN MOUNTED POLICE
and
THE ATTORNEY GENERAL OF CANADA
Respondents
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 16, 2004
REASONS: Lemieux J.
DATED: November 1, 2004
APPEARANCES:
James R.K. Duggan FOR THE APPLICANT
Raymond Piché FOR THE RESPONDENTS
Paul Deschênes
SOLICITORS OF RECORD:
James R.K. Duggan FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENTS
Deputy Attorney General
of Canada
Montréal, Quebec