Articles of Interest - Fairness requirements RCMP decision making absence bias

by Catherine Ebbs
Acting Executive Director and Senior Counsel
June 2004

The common law requires that the RCMP respect the duty to act fairly in its decisions on grievances, disciplinary matters and discharge and demotion cases. This is of vital importance, because where the duty to act fairly has not been respected, the decision taken cannot stand.

In G-177, the ERC explained that there are two components to the legal duty of fairness. Firstly, a party whose rights will be affected by a decision must be given the opportunity to be heard. The party must be informed of the allegation or allegations made against it and of the possible consequences. The party must also have a reasonable opportunity to reply to the allegations (See Cardinal v. Kent, [1985] 2 SCR 643, and Nicholson v. Haldimand Norfolk, [1979] 1 SCR 311). Secondly, the decision-maker must be impartial. (See Newfoundland Telephone Co. v. Newfoundland, [1992] 1 SCR 623 ("Newfoundland Telephone") and P. Garant, Droit Administratif, Vol. 2, 4th edition, Éditions Yvon Blais, at page 338 ff.)

In the following article, the second element of fairness, absence of bias, will be explored.

As the ERC stated in G-173, "The notions of bias and conflict of interest, whether real or apparent, are of particular concern in all situations where the rights of individuals are being decided." The law is clear that it is not enough that the decision-maker actually be impartial; there must also be an appearance of impartiality. In D-055, the ERC adopted the test set out by the Supreme Court of Canada in the Newfoundland Telephone case (citation given above): "The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator."

It is clear that the appearance of impartiality is necessary in order to maintain public confidence in the decision-making process. As has been said many times, justice must not only be done, but it must also be seen to be done. Even where decision-makers may feel that they could proceed in an unbiased and fair manner, they have an obligation to excuse themselves from a case when there is any issue that would raise even the appearance that the decision-maker could not be objective.

In G-049, the ERC emphasized that in law, the person raising the bias argument has the onus to establish on a balance of probabilities that "a reasonably informed bystander could reasonably perceive bias". To make the statement that a decision-maker is biased is not enough; there must also be an explanation given regarding upon what basis a reasonable person could find that there was an appearance of bias in the case.

There are two types of bias argument. The allegation of bias or the appearance of bias can be directed to an individual decision-maker because of certain personal characteristics or suspected prior involvement in the case. As well, a bias argument can be made against the decisin-making body as a whole; this is referred to as an allegation of institutional bias.

There are various types of situations which may give rise to a reasonable apprehension of bias on the part of the decision-maker. These include a personal, family or business relationship with one of the parties or a witness. Other examples include a history of, or display of hostility towards one of the parties. The decision-maker may have been in a position where they have made a decision about a party in the past, and may appear to have already formed opinions about the person. They may have been involved in the facts of the case at an earlier stage in a way that makes it appear they have pre-judged the issues. As well, an appearance of bias can arise by the decision-maker's behaviour at the hearing, such as when they repeatedly cut off a party from speaking, or treat a party in an overly aggressive or sarcastic manner.

In a number of cases before the ERC, a party has argued that there was an appearance that a decision-maker was biased. For example, if the decision-maker has taken an active role in the case prior to the grievance being presented, then it may appear to a reasonable person that the decision-maker has a closed mind. In G-085, the ERC found that there was an appearance of bias on the part of a member of a Medical Discharge Board, because this member, before being named to the Medical Discharge Board, had made a decision that the grievor was unable to perform his duties as a member of the RCMP. In this case, the Commissioner did not accept the bias argument, because he found that the Board had acted fairly, and at the time of the hearing, the grievor had not objected to the member participating on the Board.

In D-068, the ERC addressed the issue of a member of an Adjudication Board briefly meeting a sanction witness by chance after the decision was given, but before the reasons were finalized. The appellant argued that this raised the appearance of bias. The ERC concluded that it did not have to decide this issue, as it was recommending that the appeal be allowed for other reasons. However, the ERC stated:

It is also important to note that if a decision-maker discusses the case with the participant in the absence of one or both parties, this could lead to an appearance of bias. (A further problem in the latter scenario would be that information has been given to the decision-maker to which the absent party or parties have not had the chance to respond.)

In a recent case, D-087, the member argued that there was an appearance of bias because a member of the Adjudication Board had met a witness in a chance encounter during a training course. They had spoken for approximately three minutes about the disciplinary process in general, but not about the specific case. This conversation had occurred after the parties had been notified of the decision on the allegation, but before the sanction hearing had been held. The ERC found that a reasonable person would not have found an appearance of bias. In analyzing allegations of bias and appearance of bias, it is important to consider the nature and the length of the meeting. In this case, the conversation was short and the specific case was not discussed. (The Commissioner has not yet made his decision).

A party may also raise an argument of "institutional bias", i.e. because of the way that the decision-making body is set up, it is not independent. For example in the case of Armstrong v. Canada (Commissioner of the Royal Canadian Mounted Police) [1994], 2 F.C. 356 (Trial Division) and [1998] 2 F.C. 666 (Court of Appeal), the member submitted an argument of institutional bias based on the fact that for discharge and demotion procedures, not all of the Discharge and Demotion Board members were full-time adjudicators; two out of three were officers that were appointed by another officer designated for that purpose on a case-by-case basis. According to the argument, the appearance would be that the two part-time officers would favour the position of the Force, because if they did not, they may not be appointed to other Boards in other cases.

In the Armstrong case, the Trial Division of the Federal Court decided that Parliament had set up a detailed code of procedure that was fair, and there was no appearance of institutional bias. It considered that the law requires that the decision-makers cannot be immediate superiors of the member and cannot participate if they have participated in instituting or processing the case against the member. The names of Board members were to be given to the member so that objections to specific individuals could be made. Parliament had also accepted that members of Discharge and Demotion Boards were to be officers of the RCMP. The Court noted that it would have been open to Parliament to require that such boards consist of persons outside and independent of the RCMP but Parliament had not chosen such an option.

The Court of Appeal affirmed the Trial Division decision. It considered the factors named by the Trial Division, and also found that independence was ensured by providing that all Board members must be officers of the RCMP. It concluded that the RCMP Act ensures a slightly higher degree of independence as officers are managers and therefore have increased security. As well, one of the Board members must be a graduate of law school. All officers were required to take an oath that they will impartially execute and perform their duties. Additional safeguards that ensured the independence of the Board were that the Commissioner's reasons must explain a departure from a ruling of an External Review Committee, set up to review the Board's decision; and it was a summary conviction offence to induce a member to forego his or her duty. The Court concluded that although the Commissioner appointed the officer who appoints the Board, there was no requirement that the Board have additional attributes of independence over and above those already provided by Parliament in the RCMP Act.

As a result, the Federal Court of Appeal found that the informed reasonable person would perceive the Board as independent.

The ERC, in D-035, applied the reasoning of the Federal Court in Armstrong to the disciplinary process set out in Part IV of the RCMP Act, which it found shared very many procedural similarities. In this case, the member raised a lack of independence argument based on the fact that the officer who was designated to appoint the Adjudication Board members was also the superior of the Board members, as well as the superior of the members who represented each of the parties in the disciplinary proceedings.

The ERC found that the law was clear that the existence of an internal disciplinary process is not itself a violation of the principles of natural justice, and therefore, the fact that the various participants to the disciplinary hearing all came from the same directorate would not reasonably be found to create an appearance of bias. As well, it accepted the ruling in Armstrong that such a process as set out by Parliament meets the test for fairness and independence.

Any member who wishes to argue that a decision-maker is biased or that the process lacks independence should do so as soon as the issue first comes to light. For example, the law provides that for both the discharge and demotion and disciplinary processes, the member is given the chance to object to the choice of board members when they are first named. If a member does not raise the issue at the earliest opportunity, for example, if the member knew about the concern at the time of the hearing, but does not raise it until the appeal, the Commissioner, the ERC and the court may find that the member is barred from raising it.

However, when the other party does not object to a bias argument being raised later in the proceedings, it may be considered (D-035). Also, where the bias argument is based on something that was not known until after the decision was made, such as for example, where an allegation of bias is related to the way the evidence has been analyzed and weighed in the decision, then the party may raise it for the first time at the review stage. For example, in D-055, the ERC found that the member could raise a bias argument at the appeal stage because it was based on the allegation that the Adjudication Board had not considered all of the evidence in reaching its decision.

The courts have addressed the issue of how decision-makers should answer a bias argument. The proper procedure when a member challenges one of the Board members for bias at the hearing is for the request to be addressed to the member who is being challenged and for that member to determine whether his or her continued participation would give rise to a reasonable apprehension of bias. It does not rest with the entire panel even where the decision-maker sits as a member of a panel, and it also does not rest with the panel Chair (Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851). The ERC adopted this approach in the recent case D-087, noted above.

If the member argues bias or appearance of bias before the hearing has commenced, and if the argument is accepted, a different decision-maker will be named.

If the member argues bias after a decision has been made, and if bias or an apprehension of bias is found, the decision is set aside, and the matter returned to be dealt with by other decision-makers. This is now the remedy even where the appearance of bias lies with the Commissioner of the RCMP. In the recent case of D-081, the Commissioner found that he was unable to act. There was an appearance of bias because he had been previously involved in the case before he had been named Commissioner. As a result, a substitute decision-maker was named by virtue of s. 15 of the RCMP Act, which allows for a senior officer to take on the duties of the Commissioner in the event that the Commissioner is "unable to act". In the recent Federal Court of Canada case in Stenhouse v. Canada (Attorney General), [2004] F.C.J. No. 469, 2004 FC 375, the judge made a similar ruling because of prior direct involvement on the part of the Commissioner of the RCMP. The judge stated: