D-129 - Adjudication Board Decision

This was an appeal by the Appropriate Officer of an Adjudication Board's decision that the allegation was not established. The member, while off duty, was arrested for driving while impaired by the local police force. The arresting officer was attending an unrelated incident when she witnessed the member driving his vehicle towards her. He slowed down and stopped. The officer signaled to him 3 times to keep moving. The officer found the member's behaviour suspicious and decided to follow him. She stopped him for a document check. The officer testified that the member had trouble finding his documents even though there were in plain sight. She arrested him for driving while impaired. The member was brought to the local police station, detained, ordered to undergo a breathalyzer test and was released two hours later.

The judge at the member's criminal trial ruled that all evidence from the point of arrest was to be excluded from the trial as it was obtained in breach of the member's rights under section 7 (right to liberty) and section 8 (protection against unlawful search and seizure) of the Charter. The member was acquitted.

At the Board hearing, both counsel agreed that the member's Charter-protected rights had been breached. The member presented a motion to exclude all post-arrest evidence. The questions for the Board were: 1) is the Board a court of competent jurisdiction for purposes of subsection 24(1) of the Charter? 2) If so, should the Board exclude the post-arrest evidence pursuant to subsection 24(2) of the Charter? The Board ruled that it was a court of competent jurisdiction to rule on Charter issues and that it had jurisdictions to impose remedies such as the exclusion of evidence. It excluded the post-arrest evidence. The Board also found that the remaining evidence did not establish the allegation.

The ERC found that the determination by the Board of the applicability of the Charter to its proceedings is not owed deference as it involves a question of law. Further, it found that the Board's application of subsection 24(2) of the Charter and its determination of whether the exclusion of the post-arrest evidence would bring the administration of justice into disrepute is a mixed question of fact and law and owed deference on appellate review.

The ERC found that the Board made no error in its analysis of the applicable tests regarding the Charter and the remedy sought. The Board correctly applied the two-part test set forth in Conwayin making its determination both that it was a court of competent jurisdiction for purposes of subsection 24(1) of the Charter and that it had authority to exclude evidence from its hearing pursuant to subsection 24(2) of the Charter. The ERC further found that the Board correctly assessed whether or not the exclusion of the post-arrest evidence would bring the administration of justice into disrepute.

Lastly, the ERC found that the Board did not make a manifest and determinative error in its determination of whether the remaining evidence established the allegation. It thoroughly reviewed the testimony of the arresting officer and found that there was not sufficient evidence to conclude, on a balance of probabilities, that the member was operating his vehicle while impaired.

The ERC recommended that the Commissioner of the RCMP dismiss the appeal.

The Commissioner's decision, as summarized by his office, is as follows:

The Appropriate Officer appealed the decision of the Adjudication Board that the allegation was not established. The Commissioner agreed with the Chair of the RCMP External Review Committee that the Adjudication Board made no error in its analysis of the applicable tests regarding the Charter and the remedy sought, correctly assessed whether or not the exclusion of the post-arrest evidence would bring the administration of justice into disrepute, and did not make a manifest and determinative error in its determination of whether the remaining evidence established the allegation. The Commissioner dismissed the appeal and confirmed the Adjudication Board's decision.