Articles of Interest - Update decision federal court read Canada

by Monica Phillips, Legal Counsel
July 2005

On June 2, 2005 the Federal Court of Canada issued its decision in Read v. Canada ([2005] FC 798). This case was summarized in the Communiqués of July-September 2003 (RCMP External Review Committee's (ERC) recommendation (D-081)) and January-March 2004 (RCMP Commissioner's decision).

Background

Corporal Read was one of a series of investigators assigned to review the system used to issue visas at the Canadian Mission in Hong Kong. He became convinced that senior Immigration Department officials, aided and abetted by members of the RCMP, had covered up flaws in the visa issuance system and potentially allowed criminals into Canada. His supervisors did not agree with his assessment and he was removed from the file. After becoming concerned that he was being "set up" for releasing a classified report to a third party, Cpl. Read gave a number of media interviews in which he discussed the Hong Kong investigation. He had been previously ordered not to discuss the Hong Kong file with the press.

Cpl. Read was accused of disobeying a lawful order and conducting himself in a disgraceful manner which brought discredit on the Force, in violation of the RCMP Code of Conduct. The public comment was alleged to be a breach of the duty of loyalty Cpl. Read owed to his employer. His defence was that the public disclosure was permitted under the "whistle-blower" exception to the duty of loyalty.

The Adjudication Board found the conduct violated the Code of Conduct and ordered the member to resign within 14 days or face dismissal. The member appealed to the Commissioner, who sent the file to the ERC for its findings and recommendations.

The ERC disagreed with the Board's finding that RCMP members should be held to a higher standard regarding loyalty and the duty of non-disclosure than civil servants. In the ERC's view, the "whistle-blower" defence was not limited to matters of public health and safety alone. It was also available where the information disclosed involved a matter of "legitimate public concern". The ERC recommended to the Commissioner that he allow the appeal.

The Commissioner delegated his decision making function on the basis that he had previously been involved in the investigation into Cpl. Read's alleged wrongdoing.

The delegated decision maker agreed with the Board that a higher standard applied with respect to the duty of loyalty. He further stated that the "public concern" standard used by the ERC regarding the whistle-blower defence was overly broad, and that, in any event, the matters disclosed did not involve genuine public concern. The sanction of the Board was upheld. The member sought judicial review.

Federal Court Decision

Standard of Review

To begin, the Court discussed the standard of review to be applied. The standard of review is a reflection of how closely or in how much detail the Court will scrutinize the decision challenged.

Mr. Justice Harrington referenced the two main Supreme Court of Canada cases on this issue (Dr. Q. v. College of Physicians and Surgeons of British Columbia ([2003] 1 S.C.R. 226) and Law Society of New Brunswick v. Ryan ([2003] 1 S.C.R. 247)). These cases identified three standards for judicial review of administrative decisions. The Court will interfere with some types of findings only if there is no reasonable basis for the finding (called patent unreasonableness). The Court will interfere with other types of findings only where it is clearly unreasonable (called reasonableness simpliciter). In this second type, the Court will not substitute its own finding, even if it finds the original decision less than compelling. In the last type of finding, the Court will require that the finding be right (called correctness).

The Court adopted the reasoning in Stenhouse v. Canada (Attorney General) ([2004] F.C.J. No. 469). This case was summarized in the Communiqué of April-June 2002 (ERC's recommendation (D-076) and Commissioner's decision). It stated that the Commissioner had obvious expertise, that the disciplinary processes were largely fact-based and that the RCMP Act recognized the need for the RCMP to control its own disciplinary matters. All of these factors were found to effect the extent to which a Court will review any decision. The Court indicated it would allow significant deference to the Commissioner on questions of fact and would apply the reasonableness standard on questions of mixed fact and law. However, on questions of law, as the Courts have a greater expertise, a standard of correctness was found to apply.

The Whistle-blower Defence

The Court found that Cpl. Read's criticism bore directly on his duties and responsibilities as a member of the RCMP. As he had lost his security classification and the trust of his superior officers, the Court found that there was no question that his ability to carry out his job had been impaired. However, if he was entitled to speak on the basis of the "whistle-blower" defence, the Force would be prevented from imposing discipline.

The Court proceeded to review the basis of the "whistle-blower" defence found in the Supreme Court of Canada in Fraser v. Canada (Public Service Staff Relations Board) ([1985] 2 S.C.R. 455). In that case, a balance was struck between freedom of expression and the duty of loyalty owed to an employer. In Fraser, the Court held that, as a general rule, federal public servants should be loyal to their employer, but that public speech might be appropriate in some cases. While the Court in Fraser was careful to say that the list of times when speech might be appropriate was not exhaustive, they identified three examples of when the duty of loyalty might have exceptions:

1. where the Government was engaged in illegal acts,
2. where its policies jeopardized life, health or safety; or
3. if the public servant's criticism had no impact on his or her ability to perform the duties of a public servant or on the public perception of that ability.

In addition to relying on the above three exceptions to the duty of loyalty, Cpl. Read argued that the above case law had been modified by the case of Haydon v. Canada, ([2001] 2 F.C. 82, Haydon No.1). He submitted that Haydon No. 1 set out a fourth circumstance which would justify the whistle-blower defence: legitimate public interest.

The Court held that while there was a possibility that criminals might have entered Canada on bogus documentation, this risk was too remote to trigger the exception based on public health or safety.

The Court then proceeded to review the argument that Cpl. Read was entitled to speak on the basis that he believed that there was government illegality involved. Cpl. Read had argued that the burden to establish that he was not entitled to speak out fell to the RCMP and that, in any event, it was not necessary that the accusations of illegality be true, only that he honestly believed them.

While the Court found that Cpl. Read honestly believed the accusations, it also found that honest belief was not enough. There had to be some rational basis for the allegations. The Court held that Cpl. Read failed to prove his allegations, even on the relatively low standard of balance of probabilities. The Court quoted with approval Grahn v. Canada (Treasury Board) ((1987), 91 N.R. 394 (FCA)), as follows:

The Court rejected the proposition that Haydon No. 1 created a fourth exception to the duty of loyalty related to matters of legitimate public concern. The Court acknowledged that there could be other exceptions to the duty of loyalty, but that public interest as a general concept was not such an exception. The Court went further and found that:

Essentially, the Court stated that, in the course of the operation of a police force, some decisions will be made on the basis of allocation of resources and administrative discretion. Disagreement with these types of decisions does not create any right to disregard the duty of loyalty.

The Court discussed Haydon v. Canada (Treasury Board) (2004 FC 749 (Haydon No. 2)) which set forth a list of relevant factors in determining the validity of the whistle-blower defence. That list included the following factors:

• the working level of the employee within the Government hierarchy;
• the nature and content of the expression;
• the visibility of the expression;
• the sensitivity of the issue discussed;
• the truth of the statement made;
• the steps taken by the employee to determine the facts before speaking;
• the efforts made by the employee to raise his or her concerns with the employer;
• the extent to which the employer's reputation was damaged; and
• the impact on the employer's ability to conduct business.

In applying those factors to Cpl. Read's case, the Court found that the speech in question impaired his ability to carry out his duty and had the potential to adversely affect his employer. Further, even if the speech was otherwise justified, Cpl. Read was precluded from going public as he had not exhausted the internal recourse process.

On the basis of the above, the Court found that the "whistle-blower" defence had not been made out on the basis of the level of the duty of loyalty owed by public servants to their employer. Therefore, it was not necessary to consider whether police officers and public servants have different duties of loyalty

Comment

This case is interesting in that it confirms the standard of review that will be applied by the Courts to Level II grievance decisions. The highest standard, that of correctness will only be applied for questions of law and the Commissioner will be accorded a degree of deference with respect to findings of fact or findings of mixed fact and law.

The case also provides guidance as to when the Court may support a "whistle-blowing" defence, including the need for evidence to back up allegations and the need to exhaust internal processes prior to making the information public. One of the main cases referred to by the Court, Haydon No. 2, is currently under appeal and a decision of the Federal Court of Appeal may have an impact on the legal framework for "whistle-blower" defences. (Note: At the time of publication, the Federal Court of Appeal dismissed the appeal in Haydon No. 2.)

Also interesting in this case is what has been left undecided: are RCMP members subject to a higher duty of loyalty than civil servants?

On June 30, 2005, Corporal Read filed an appeal of the decision in the Federal Court of Appeal.