Articles of Interest - Update: Decision federal court appeal Theriault case

by Martin Griffin, Legal Counsel
March 16, 2006

On February 10, 2006, the Federal Court of Appeal issued its decision in Thériault v. Canada ([2006] FCA 61). This case was summarized in the Communiqué of July - September 2003 (Committee's recommendations) and October - December 2003 (Commissioner's decision), as well as in the Communiqué of October - December 2004 (Federal Court's decision).

Background

In March 1999, the criminal operations officer (CROP) at the RCMP was informed of an alleged contravention of the Code of Conduct by a member. Between May and September 1999, the CROP served as acting Commanding Officer (CO) of the division for a few days or a few weeks at a time while the CO was absent. In November 1999, the CO was informed of the allegations, and disciplinary proceedings were instituted against the member in October 2000.

Under section 43(8) of the RCMP Act, disciplinary proceedings must be initiated within twelve months from the time the Appropriate Officer, which is the CO, has learned of the alleged contravention and the identity of the member.

At the Adjudication Board hearing, the member noted that the limitation period in section 43(8) should have commenced in May 1999, since the CROP, who had known of the allegations of disgraceful conduct, became the CO on an acting basis at that time. The Adjudication Board rejected this claim because the CROP was not acting as CO of the division when he learned of the allegations. The Board ordered that the member resign within fourteen days, failing which he would be dismissed.

The member appealed the Adjudication Board's decision, and the External Review Committee recommended that the appeal be dismissed. It found that, since the CROP had only served as CO of the division on an acting basis, his knowledge of the allegations could not be ascribed to the actual CO. The Commissioner dismissed the appeal. He adopted the Board's analysis as to the statutory time requirement and the position of an acting CO.

Following this decision, the member made an application for judicial review to the Federal Court. In its decision (Thériault v. Canada [2004] FC 1506), the Court stated that whether an officer holds the position of CO of the division on an acting or permanent basis is irrelevant in determining if the time limit was respected. According to the Court, the limitation period in section 43(8) commences when the CO of the division acquires the level of knowledge about the results of an internal investigation. The Court stated that the CROP did not have this level of knowledge when he assumed the duties of CO of the division, and it was the actual CO of the division who acquired sufficient knowledge at a later date, ensuring that the limitation period was respected.

The Federal Court of Appeal allowed the appeal. First, the Court of Appeal stated that the Appropriate Officer acquires the knowledge referred to in section 43(8) of the Act when he is in possession of reliable and persuasive information about the alleged contravention and the identity of the member. The degree of knowledge required for the time period to begin to run does not need to be confirmed through an investigation, and it is not necessary to have all the evidence required to exercise the right of action.

The Court of Appeal also concluded that an Officer's knowledge of the points set out in section 43(8) of the Act follows him when he assumes the position of Appropriate Officer, even if it is only on an acting basis. In this case, the Court of Appeal found that the CROP had the level of knowledge required under section 43(8) of the Act when he assumed the duties of CO of the division in May 1999, and that he should have either initiated proceedings himself or informed the actual CO of the allegations and the identity of the member so that the CO could comply with the Act. The proceedings initiated against the member in October 2000 were therefore statute barred, and the Court of Appeal overturned the Commissioner's decision ordering his dismissal.