Articles of Interest - Update: Federal court appeal decision Gill attorney general Canada 2007.305

Monica Phillips, Counsel
March 2008

Four allegations of misconduct were presented against the Appellant. They related to incidents in which he purportedly interacted too aggressively with the public. The Appellant admitted the first allegation, but denied that his conduct in the other instances was disgraceful.

The Adjudication Board ("Board") found that the Member had conducted himself in a disgraceful manner that brought discredit to the Force. It imposed sanctions consisting of forfeiture of 10 days' pay for each of the first two allegations (mistreating a restaurant patron and a motorist, respectively), dismissal for the third allegation (making an unwarranted arrest), and an order to resign for the fourth allegation (punching a handcuffed prisoner). In deciding on these penalties, it relied in part on the Member's disciplinary record, failure to agree to psychotherapy before the incidents occurred and failure to undergo an alcoholism treatment program.

The Member appealed to the RCMP External Review Committee ("Committee"). The Committee recommended that the Member's appeal be allowed in part. With respect to the second and fourth allegations, it found that the Board had exceeded its jurisdiction by relying on facts that were neither described in the particulars nor relied upon by the Appropriate Officer. With respect to third allegation, it found that while the Board's conclusion that disgraceful conduct occurred was justifiable, the sanction imposed was too harsh given that only two of the four allegations could be supported.

The Commissioner disagreed with the Committee. He found that the statements of particulars met RCMP Act requirements as they contained the place and date of each allegation and were sufficiently specific for the Member to know the case against him and prepare a proper defence. In his view, the Appellant's conduct established an unacceptable pattern of anger and violence that clearly violated the Code of Conduct as well as the Force's core values. The Commissioner upheld the decision of, and sanctions that were imposed by the Board.

The Member appealed the Commissioner's decision to the Federal Court of Canada, but did not contest the sanction imposed in relation to the first allegation. The Federal Court held that the Commissioner's conclusions could not stand. In its view, the Force had not given the Appellant particulars that were detailed enough to constitute reasonable notice of the allegations. This prevented the Member from preparing a full defence. The Court also held that the Board's finding that the third allegation had been established was unreasonable since the evidence at the hearing did not support that conclusion. The Court therefore set aside the Commissioner's decision and sanction. It referred the matter back to the Commissioner for a redetermination.

The Crown appealed. It asked the Federal Court of Appeal to set aside the Federal Court judge's decision and reinstate the Commissioner's decision. The Federal Court of Appeal held that although the lower court judge did not make any overriding errors, he failed to confirm that the Appellant had not contested the sanction imposed for the first allegation. The Court of Appeal corrected that "oversight" by ordering that the sanction for the first allegation be maintained. The Court of Appeal did not otherwise disturb the lower Court's decision.

On December 19, 2007, the Commissioner instructed the Force to reinstate the Appellant. He did not support ordering a new hearing, and therefore dismissed the second, third and fourth allegations in view of the already lengthy process, the issues surrounding the limitation period and the fact that the Appellant was already subject to a loss of 10 days' pay on the first allegation (the maximum forfeiture of pay that he could incur for allegations in one notice).

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