Articles of Interest - update: Decision federal court Gill case

by Monica Phillips, Legal Counsel
December 2006

On September 18, 2006, the Federal Court of Canada issued its most recent decision in the area of discipline in the matter of Gill v. the Attorney General of Canada [2006] FC 1106.

Background

Constable Gill was alleged to have engaged in four instances of disgraceful conduct related to aggressive interaction with the public. The Member admitted the first allegation but denied that his conduct in the remaining three instances was disgraceful.

The second allegation was that he had mistreated a motorist he had arrested for failing to heed his instruction to stop his vehicle. The motorist claimed that the Member made demeaning remarks to him and he choked him.

The Adjudication Board concluded that the motorist's evidence was not credible. However, it still found the Member's conduct was disgraceful because he had damaged the motorist's vehicle by hitting it with a flashlight and used excessive force in making the arrest.

The third allegation was that the Member made an unwarranted arrest of an individual who came up to him in a bar and uttered a derogatory remark. The Member claimed that the arrest was justified as the individual had pushed him.

The Adjudication Board rejected the Member s evidence that he had been pushed. They reached this conclusion in part because an RCMP member who was standing nearby indicated that he did not see Cst. Gill being pushed, as well as the testimony of other bar patrons.

The fourth allegation was that the Member punched a prisoner in the face while he was handcuffed and seated in the back seat of a police vehicle. The Member acknowledged that he had punched the prisoner in the face, but stated that this occurred prior to placing the person in the vehicle, as a means of gaining control over him after the prisoner kicked him twice.

The Adjudication Board accepted the Member's version of events but still found that the allegation had been established because it considered that the prisoner's actions could not have represented a threat to Cst. Gill as he was handcuffed at the time.

On allegations numbers 1 and 2, the Member received a forfeiture of pay and reprimand for each incident. He was ordered dismissed as sanction for allegation number 3 and he was directed to resign from the Force within 14 days, failing which he would be dismissed as sanction for allegation number 4.

The Member appealed and the matter was referred to the RCMP External Review Committee (Committee). The Committee recommended that the appeal be allowed in part.

With respect to allegations numbers 2 and 4, the Committee found that the Board had exceeded its jurisdiction by relying on facts that were neither described in the particulars to the allegations nor relied upon by the Appropriate Officer.

With respect to allegation 3, the Committee found that the Board s conclusion that the disgraceful conduct occurred was not patently unreasonable. However, the Committee found that the sanction imposed for allegation number 3 was too harsh, given that only two of the four allegations could be supported.

The Commissioner disagreed with the Committee, upheld the Board s decision and dismissed the appeal. He found that the statements of particulars met the requirements of the RCMP Act as they contained the place and date of each allegation and were specific enough to allow the Member to know the case against him and prepare a proper defence.

The Commissioner also disagreed with the Committee s recommendation on sanction. He found that the Member s conduct showed a pattern of anger and violence that was unacceptable and was a clear violation of the Code of Conduct as well as the Force s core values. The Commissioner upheld the sanctions that were imposed by the Board. The Member appealed to the Federal Court of Canada

The Federal Court found that the question of whether the Member had adequate notice of the allegations against him was a matter of procedural fairness and, if that procedural fairness had been denied, the decision of the Commissioner must be set aside.

While the Court found that details provided to support an allegation of professional misconduct did not need to have the same degree of precision required in criminal prosecutions, the particulars must still meet a minimum standard. Specifically, the particulars must allege conduct which, if proven, could amount to professional misconduct. Further, they must provide sufficient detail to give the person charged both reasonable notice of the allegations and the ability to prepare a full defence.

With respect to allegation number 2, the Court agreed with the Committee and found that the Board had relied on a different finding of misconduct from what was alleged in the particulars. Further, the Board s finding of misconduct was different from the allegations of disgraceful conduct submitted by the Appropriate Officer s Representative. By making findings of disgraceful conduct based on other facts, the Board did not give the Member adequate notice of the allegations of misconduct.

Specifically, the notice of hearing set out the alleged facts that the Member had to defend himself against; that he was verbally discourteous and disrespectful to a member of the public. The Court found that the Member was unable to prepare a proper defence to the allegations that he inappropriately struck the persons car and used excessive force in arresting the person on the basis of the details supplied in the particulars. As a result, the Court found that the Commissioner had made an error in upholding the Boards decision on allegation number 2.

With respect to allegation number 4, the Court noted that the particulars set out a specific set of facts; that the Member was accused of assaulting a prisoner while the prisoner was secured in the rear seat of the police vehicle. The Court agreed with the Committee that it was important for the Member to know whether his conduct outside the vehicle was potentially the basis on for the finding of disgraceful conduct. Had he known this, the Member may have, for example, called evidence on the appropriate use of force to subdue the person in who is handcuffed, but still violent. As a result, the Court determined that the Commissioner also made an error when he upheld the Board s finding on allegation number 4.

The Court then turned allegation number 3. The Court determined that on allegations of disgraceful conduct and sanction a highly deferential standard of review, called "patent unreasonableness", should apply to findings of the Commissioner.

The Court found that the impugned decision turned on whether there were reasonable grounds for the Member to arrest the person in question. The Court held that the Appropriate Officer must demonstrate on the basis of clear and compelling evidence, that the Member conducted the arrest without lawful grounds.

The Member had testified that he was assaulted by a bar parton. The bar patron denied this and another RCMP member who was there also did not see the incident. However, the second member testified that he was ahead of Cst. Gill and looking forward. Two other people testified and neither saw Cst. Gill be pushed, but both had been drinking and their testimony was not conclusive.

The Board, the Committee and the Commissioner rejected the evidence of the Member that he was pushed. However, the Court, after reviewing the evidence, disagreed that it supported the conclusion that the Member was not pushed. Therefore, the Court concluded that the Commissioner s decision on allegation number 3 was patently unreasonable and ordered it set aside.

In light of these findings, the sanctions imposed by the Commissioner were also set aside. The application for judicial review was allowed, the decision of the Commissioner was set aside and the matter was referred back to the Commissioner for redetermination.

In October 2006, the Crown filed a Notice of Appeal in the Federal Court of Appeal asking that the decision of the Federal Court be set aside and the decision of the Commissioner be reinstated.