Articles of Interest - Update: Decision federal court Kinsey case
by Melvin Chuck, Counsel
On May 22, 2007, the Federal Court of Canada issued its most recent decision in the area of discipline in the matter of Kinsey v. Canada (Attorney General)  FC 543.
Constables Kinsey and Dhaliwal faced allegations of disgraceful conduct due to the inappropriate use of the RCMP's mobile computer system. During the disciplinary hearing, both members admitted that they had sent each other several highly inappropriate text messages while on duty from their police cars. These messages were derogatory towards colleagues and members of the public, contained profanities and obscenities, expressed a desire to use improper force, and stated a lack of commitment to their work.
The matter was brought before an Adjudication Board (the "Board") for formal disciplinary action. The Board found that the allegations had been established. At the hearing, evidence was presented regarding previous disciplinary action against both members for similar conduct. The Officer in Charge of the detachment testified that he had lost confidence in both members. The Board ordered the members to resign as their lack of judgement and clear disregard for the RCMP's values repudiated essential elements of the employment relationship.
The members appealed the Board's decision to the RCMP Commissioner who then referred it to the RCMP External Review Committee (the "Committee"). The members presented three arguments against their dismissal.
First, the members argued institutional bias among the Board members, as they claimed that the Board members ranked below the Appropriate Officer ("AO"), then RCMP Deputy Commissioner Beverly Busson. The Committee found that there was no evidence to suggest that the Board members were biased.
Second, the members argued that there was a breach of procedural fairness, as the AO, acting through a representative ("AOR"), presented the AO's personal opinion during the closing submissions, without introducing this as evidence during the Board hearing. The Committee dismissed this argument. It found that, though that there was a breach of procedural fairness, it would not have affected the hearing outcome.
Third, the members argued that the sanction was disproportionately high. The Committee also rejected this argument. It provided the Board considerable deference, found that proper weight was placed on prior discipline, and recognized that the order to resign was in keeping with similar patterns of discipline. The Committee recommended that the Commissioner dismiss the members' appeal.
The Commissioner reviewed the Committee's findings and recommendations. As to the issue of bias, he agreed with the Committee. He rejected the argument that the Board was biased because the AO outranked the Board members. Rather, he relied on jurisprudence which found that the RCMP discipline process was sufficiently independent to meet the requirements of natural justice.
As to the issue of the breach of procedural fairness and the AOR's submissions before the Board, the Commissioner found that the AOR may legitimately advise the Board of the sanction. However, he stated that these comments must not belabour the point, or express personal views. He agreed with the Committee that an appeal should not be allowed on this issue, as it would not have affected the outcome of the case.
In regard to the severity of the sanction, the Commissioner stated that he was not bound by Board decisions concerning discipline. The members were not being discharged simply due to their inappropriate use of the RCMP mobile computer system, but rather because of the vulgar, racist, sexist and demeaning content of the messages. The Commissioner stated that the members had repudiated their employment contracts and directed the members to resign from the RCMP. The members appealed to the Federal Court of Canada.
The Federal Court first addressed the standard of review. It determined that the applicable standard of review is patent unreasonableness, which allows for the greatest deference to the impugned decision-maker. It determined that the Commissioner has greater expertise than the Court with respect to policing. It found that the RCMP Act intended the Commissioner to have primary responsibility for sanctions applied to members. As such, the Commissioner's decisions must be subject to significant deference.
The Court then addressed the issue of bias. It looked at whether the Board members were susceptible to the influence of RCMP management, due to the disparity in rank. It found that the argument of bias was not supported. The Board members are officers, have taken oaths to impartially perform their duties, and had no part in instituting the case against the two members. The Court also evaluated the AO's role in the process and found it to be similar to the Attorney General in criminal prosecutions: the AO is merely representing RCMP management and does not intervene in a personal capacity. Finally, the Court found the members waived their right to argue bias, because they did not immediately object during the course of the hearing, after learning of the AO's identity.
The Court then looked at the issue of procedural fairness. It found that the AO's comments were inappropriate and that there was a flagrant breach of procedural fairness. The Court recognized that the AO was provided an opportunity to present evidence, cross-examine witnesses, and make representations at the hearing. However, the AO chose to participate through a representative, did not testify, and could not be cross-examined. The Court found this to be most unfair to the members.
As a result, the Court revisited the issue of a reasonable apprehension of bias. It found that the Board members were put to notice that the AO personally believed the two Force members were irredeemable, and that she has lost confidence in them. It is similar to the Attorney General telling the Court that the Attorney General personally believes that an accused should be punished in a specific manner, based on the severity of the offence. The Court found this was unacceptable. In the RCMP's hierarchical and structured institution, where respect for superiors may eventually influence one's career, a reasonable and well-informed individual could have an apprehension of bias, as the Board members could be perceived to defer to the AO's personal views.
The Court recognized that the Board's finding may have been different, had it not been made aware of the AO's personal views. The two members had previously been commended for meritorious service and their assessments, though not extraordinary, were not necessarily negative. The Board could have applied lesser sanctions: a transfer to another detachment, and to ensure that the members did not work together. However, the Board may have discounted such options, given the AO's personal views that the members' careers were not salvageable. The Court found that a breach of procedural fairness will render a decision invalid in all but the most unusual cases. It ordered the Commissioner's decision to be set aside and a new Board to hear the case. No appeal of the decision was filed with the Federal Court of Appeal.
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