Articles of Interest - Update: Decision federal court smart case

by Josh Brull, Legal Counsel
September 2008

On August 11, 2008, the Federal Court of Canada (Court) released its decision in Smart v. Attorney General of Canada (2008 FC 936). That case represents the Court's most recent determination in the area of discipline under the Royal Canadian Mounted Police Act (Act).

In May 2002, the Force received a complaint that Constable (Cst.) Smart had engaged in misconduct. He allegedly misused the police information data systems, and disclosed confidential information, in the Fall of 2000.

The Force initiated a disciplinary hearing in July 2003. The Appropriate Officer (AO) noted that she did not learn about Cst. Smart's identity or alleged violations until April 2003. She filed a certificate to that effect, under s.43(9) of the Act.

Cst. Smart applied to have the Notice of Hearing quashed. He argued that the AO did not respect the time limit for commencing a hearing, as set out in s.43(8) of the Act. That section prohibits the initiation of a hearing after the expiration of "one year from the time the contravention and the identity of the member became known to the appropriate officer." He also sought a stay of proceedings on the basis that the delay represented an abuse of process.

The Adjudication Board (Board) quashed the allegations. In its view, the AO "ought to have known" about Cst. Smart's purported wrongdoing in May 2002. It therefore held that the one year time limit under s.43(8) had expired by July 2003. The Board also granted a stay of proceedings on the ground that there was "an abuse of the time limitation". The AO appealed.

The Committee disagreed with the Board. It found that, absent evidence to the contrary, the AO's certificate established that she became aware of Cst. Smart's identity and alleged contraventions in April 2003. The Committee explained that because disciplinary proceedings began only three months later, the one-year limit under s.43(8) of the Act had been respected. It also found that there was no abusive delay. In this regard, it applied the test set out by the Supreme Court of Canada, and concluded that Cst. Smart's right to a fair hearing had not been compromised, as he did not show that the delay was so oppressive as to taint the proceedings.

The Committee recommended that the Commissioner allow the AO's appeal. It also recommended that the matter be returned for adjudication.

As it happened, the Acting Commissioner had been involved in the case. She therefore recused herself from the proceedings. The matter was referred to a Deputy Commissioner.

The Deputy Commissioner agreed with the Committee. He allowed the AO's appeal. He concluded that the disciplinary hearing was initiated within the one-year limitation period, and that there was no abuse of process. He directed that a new hearing be held.

Cst. Smart applied to the Court for judicial review. He asserted that the Deputy Commissioner both misconstrued the s.43(8) time limit and wrongly found that there was no abuse of process.

The Court dismissed Cst. Smart's application and upheld the Deputy Commissioner's decision.

It held that the Deputy Commissioner properly interpreted the time limit under s.43(8) of the Act. The Court reasoned that the limit did not expire until one year after a member's identity and violations "became known" to an appropriate officer, not one year after they "ought to have" been known. It explained that the knowledge required to trigger the time limit must belong to an appropriate officer, not to someone else, since only an appropriate officer could launch formal disciplinary proceedings. The Court found that the AO respected the time limit, as she initiated a hearing less than a year after learning of Cst. Smart's identity and purported wrongdoing.

The Court also held that the Deputy Commissioner's finding regarding the delays was reasonable. It found that the delay was "not great", given that the period from the receipt of the complaint to the start of proceedings was only about 14 months. It reasoned that the Force did not act in bad faith. It also pointed out that Cst. Smart's ability to defend himself was not compromised.

Lastly, the Court observed that the Board did not have the benefit of the Federal Court of Appeal's (FCA) recent analysis in Thériault v. Canada, [2006] FCA 61. In that decision, the FCA articulated the same key principle that the Court applied in Cst. Smart's case. That is, an appropriate officer acquires the knowledge referred to in s.43(8) when (s) he is in possession of reliable, persuasive information about a member's identity and alleged misconduct.

The Court referred the case back to the Board level, to be determined on its merits.