Articles of Interest - Jaworski Canada Attorney General

by Caroline Maynard, Counsel
June 2000

In 1996, an adjudication board found that Constable Alexander Jaworski had conducted himself in a disgraceful manner that had brought discredit to the Force. Cst. Jaworski had been identified by a witness as the man she had seen committing an indecent act in a public place. Cst. Jaworski always denied that he was the man, and claimed to have been the victim of misidentification. The adjudication board found the eye-witness reliable and ordered Cst. Jaworski to resign on pain of dismissal. Cst. Jaworski appealed the decision to the Commissioner. The Committee reviewed the appeal and found a number of errors in the identification practices used in determining whether Cst. Jaworski was the person observed by the eye-witness. The Committee recommended that the appeal be upheld and that the allegation be dismissed. The Commissioner did not agree with the Committee's recommendation and dismissed the appeal. The Commissioner concluded that the board's decision was reasonable based on the totality of the evidence. Cst. Jaworski applied to the Federal Court Trial Division for review of the Commissioner's decision.

The Trial Division concluded that the board's decision, which the Commissioner had adopted, contained no reviewable error. The Trial Division also dealt with an issue concerning the extent of the Commissioner's statutory duty to provide reasons when he has not acted on the Committee's recommendations. The Motion Judge concluded that the Commissioner's reasons were adequate. Cst. Jaworski then appealed to the Federal Court of Appeal.

In its review of the case, the Court summarized the evidence that had been presented to the adjudication board and outlined the Committee's criticisms of the board's decision. The Court identified two issues: the first being whether the Commissioner committed a reviewable error in upholding the adjudication board's decision; the second being whether the Commissioner's reasons were sufficient to satisfy his statutory duty to give reasons.

Concerning the first issue, the Court noted that in order for the Commissioner's decision to be set aside, Cst. Jaworski had to demonstrate that the decision was based "on an erroneous finding of fact that it made in a perverse and capricious manner and without regard for the material before it". The Court also reaffirmed the principle that the standard of proof for disciplinary cases is not as onerous as for criminal matters, and described the burden of proof for serious sexual misconduct as "at the upper limit of the burden of proof". The Court found that the probative value of the identification evidence before the board "despite its limitations"was appreciable, and that the circumstantial evidence was considerable. It therefore concluded that the board's decision was not "perverse and capricious, or made without regard to the material before it".

Concerning the second issue, the Court noted that the Commissioner had not addressed any of the Committee's criticisms of the board's decision. However, the Court of Appeal found that since the Commissioner had adopted the board's decision, which was fully reasoned, this was enough to meet his general duty to provide reasons. The Court also found that the Commissioner's decision was sufficient to understand why he did not accept the Committee's recommendation. It stated:

Consequently, the Court found no reason to set aside the Commissioner's decision and dismissed Cst. Jaworski's appeal.

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