T-1654-96
Clive E. Cannon (Applicant)
v.
Assistant Commissioner R. Berlinquette in His Capacity as Appropriate Officer Under section 43 of the Royal Canadian Mounted Police Act (Respondent)
Indexed as: Cannonv. Canada (Assistant Commissioner, RCMP) (T.D.)
Trial Division, MacKay J."Fredericton, October 16; Ottawa, November 14, 1997.
Administrative law — Judicial review — Certiorari — Judicial review of RCMP adjudication board's decision quashing summons to prosecuting officer to appear as witness — Board investigating allegations of breach of RCMP Code of Conduct — Application premature — Court will not intervene to set aside interlocutory decisions unless exceptional circumstances i.e. attack on very existence of tribunal — Decision not disposing of substantive question — Merely interlocutory decision, dealing with preliminary evidentiary issue — Error in procedural decision may be subject to appeal.
RCMP — Judicial review of adjudication board's decision quashing summons to witness — Board investigating sexual harassment allegations as breach of RCMP Code of Conduct — Summons to prosecuting officer issued, executed — On motion to remove as prosecuting officer, exclude from hearing room until called to testify, Board holding insufficient evidence of conspiracy in investigation, presentation of complaints — No error of jurisdiction — Administrative boards masters of own procedure, subject only to express constraints of empowering legislation, requirements of procedural fairness — Act, regulations not constraining board's authority as to procedural decisions — No violation of procedural fairness — Both sides having opportunity to present positions before board making reasoned decision — No error of law — Applicant not prevented from having full opportunity to present evidence, cross-examine witnesses, make representations as required by RCMP Act — Board's decision consistent with criminal cases holding persuasive burden to show relevance, necessity on lawyer seeking to force opposing counsel into witness box, relinquish role as counsel — That standard applicable to disciplinary matters — Given finding of insufficient evidence of conspiracy, testimony irrelevant to issues before board.
Constitutional law — Charter of Rights — Life, liberty and security — Judicial review of RCMP adjudication board's decision quashing summons to prosecuting officer to appear as witness — Board investigating allegations of breach of RCMP Code of Conduct — Disciplinary proceedings under RCMP Act, even if possible sanction loss of employment, not giving rise to application of Charter, s. 7 (right not to be deprived of life, liberty and security of person, except in accordance with principles of fundamental justice) — Fundamental justice not demanding more than procedural fairness — No violation of fundamental justice by board's interlocutory decision dealing with preliminary evidentiary issue.
Constitutional law — Charter of Rights — Criminal process — Judicial review of RCMP adjudication board's decision quashing summons to prosecuting officer to appear as witness — Board investigating allegations of breach of RCMP Code of Conduct — Charter, s. 11(d) guaranteeing right of persons charged with offence to hearing by fair, impartial tribunal — Disciplinary proceedings not attracting application of s. 11 unless involving true penal consequences i.e. imprisonment or fine, magnitude of which indicating imposed to redress wrong done to society rather than to maintain internal discipline — RCMP disciplinary process neither inherently criminal, quasi-criminal nor involving proceedings of public nature — Sanctions intended to reinforce discipline — RCMP Act not providing for imprisonment as sanction for breach of Code of Conduct — Dismissal not penal consequence.
This was an application for judicial review of an adjudication board's decision quashing a summons requiring a prosecuting officer to appear as a witness. The board was constituted under RCMP Act, subsection 43(2) to conduct a formal inquiry into an allegation of sexual harassment, conduct in breach of the RCMP Code of Conduct. The sanction, should a contravention of the Code of Conduct be established, would be dismissal from the force. After several instances of non-disclosure of material evidence"that complainant had made complaints against other officers" and after learning that one of the prosecuting officers, Sgt. Keating, had played a role in arranging for the RCMP to pay the legal fees of the first complainant, the applicant began to suspect a possible conspiracy in the investigation and presentation of the complaints against him, and to believe that evidence in regard to other issues, such as the apparent mental state of the original complainant, had not been disclosed to him. A summons directing Sgt. Keating to appear as a witness was issued and executed. The applicant then moved that Sgt. Keating, as a witness under summons, could no longer act as a prosecuting counsel and should be excluded from the hearing until called to testify. After hearing arguments from both sides, the board quashed the summons and ruled that there was insufficient evidence to support the alleged conspiracy, and thus the basis for the summons was not established.
The board's members are appointed on an ad hoc basis, without remuneration for service on the board, apart from their regular salaries as continuing officers serving in the RCMP and subject to the RCMP Act, not independent in their continuing general service duties from the office of the Commissioner of the force, to whom they ultimately must answer, and who has discretion to determine any appeal.
The issues were: (1) whether the board exceeded its jurisdiction because the RCMP Act does not specifically empower the board to quash a properly issued summons; (2) whether the decision to quash the summons violated the principle of procedural fairness; (3) whether the decision violated Charter, section 7, which guarantees the right not to be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice, by interfering in the applicant's ability to present his case; and (4) whether the board, as constituted, met the requirements of judicial independence required by Charter, paragraph 11(d).
Held, the application should be dismissed.
The application was premature except with respect to the challenge to the constitution of the adjudication board under paragraph 11(d) of the Charter. The Court will not intervene to set aside interlocutory decisions unless there are exceptional circumstances i.e. an attack on the very existence of the tribunal. The decision to quash the summons did not dispose of a substantive question before the tribunal. It was clearly an interlocutory decision, dealing with a preliminary evidentiary issue, i.e. whether a summons to a prospective witness should be quashed. Any error in a procedural decision may be the subject of appeal to the Commissioner under RCMP Act, section 45.14, or possibly even of later judicial review if a procedural error of significance is not remedied by the Commissioner's disposition of an appeal.
(1) The board did not make an error of jurisdiction in quashing the summons. Administrative boards are "masters of their own procedure", subject only to the express constraints of their empowering legislation and the requirements of procedural fairness. Neither the RCMP Act nor the applicable regulations placed any constraints on the board's authority for procedural decisions. The only limitations arose from the requirements of procedural fairness. Moreover, section 4 of the Commissioner's Standing Orders (Practice and Procedures) permits the board to take whatever steps it considers necessary to settle any matter arising during the course of proceedings, which is not otherwise provided for in the Rules.
(2) There was no violation of procedural fairness. Both sides had an opportunity to present their respective positions and the board then arrived at a reasoned decision.
There was no error of law on the basis that the decision prevented the applicant from having a full opportunity to present evidence, cross-examine witnesses and make representations at the hearing as required by RCMP Act, subsection 45.1(8). The Act did not give the applicant an unlimited right to call witnesses, particularly in light of section 6 of the Standing Orders, which permits the board to dismiss witnesses.
The board's decision was consistent with precedents dealing with similar circumstances. There is a persuasive burden, at least in criminal trials, on the lawyer who seeks to force opposing counsel into the witness box and relinquish his role as counsel, to show relevance and necessity. That standard should apply in disciplinary matters. The board's decision applied that standard. It found that there was no evidence of a conspiracy as alleged by the applicant. Thus the relevance of any testimony of Sgt. Keating in relation to an alleged conspiracy at this stage in the proceedings was not relevant to issues before the board. The board acted by interlocutory decision without error reviewable by judicial review at this stage.
(3) These discipline proceedings under the RCMP Act, even if the possible sanction was loss of the applicant's employment, did not give rise to the application of Charter, section 7. Fundamental justice would not demand more than procedural fairness. At this stage, no violation of fundamental justice had resulted from the board's interlocutory decision on a preliminary evidentiary issue.
(4) Charter, paragraph 11(d), which guarantees the right of persons charged with an offence to a fair and public hearing by an independent and impartial tribunal, was not applicable. Generally, discipline proceedings do not attract the application of section 11 unless they involve true penal consequences i.e. imprisonment or a fine, which by its magnitude would appear to be imposed to redress the wrong done to society at large rather than to maintain internal discipline within the limited sphere of the force. The RCMP disciplinary process is not inherently criminal or quasi-criminal and it does not generally involve proceedings of a public nature that engage section 11. Sanctions are intended simply to reinforce discipline within the RCMP. The RCMP Act does not provide for imprisonment as a possible sanction if the board finds that an alleged breach of the Code of Conduct is established. The sanction of dismissal in a police disciplinary matter is not a "penal consequence" that creates a requirement for "an independent and impartial tribunal" within paragraph 11(d ). The board did not require the aspects of judicial independence and impartiality guaranteed in the case of courts by Charter, paragraph 11(d). The board had an obligation to be impartial in its work consistent with the principles of fairness, but its composition of serving RCMP officers did not violate paragraph 11(d).
statutes and regulations judicially considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 11(d),(h), 24.
Commissioner's Standing Orders (Practice and Procedure), SOR/88-367, ss. 4, 6.
Criminal Code, R.S.C. 1970, c. C-34.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5), 57 (as am. idem, s. 19).
Federal Court Rules, C.R.C., c. 663, R. 1618 (as enacted by SOR/92-43, s. 19).
Police Act, R.S.O. 1980, c. 381.
Privacy Act, R.S.C., 1985, c. P-21, s. 8 (as am. by R.S.C., 1985 (2nd Supp.), c. 20, s. 13; (3rd Supp.), c. 1, s. 12; S.C. 1994, c. 35, s. 39).
Public Service Employment Act, R.S.C. 1970, c. P-32.
Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, s. 43 (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 16), 45.1(8) (as enacted idem), 45.14 (as enacted idem), 45.16 (as enacted idem).
Trade-marks Act, R.S.C., 1985, c. T-13.
cases judicially considered
applied:
Szczecka v. Canada (Minister of Employment and Immigration) (1993), 116 D.L.R. (4th) 333; 25 Imm. L.R. (2d) 70; 170 N.R. 58 (F.C.A.); Groupe G. Tremblay Syndics Inc. v. Canada (Superintendent of Bankruptcy), [1997] 2 F.C. 719; (1997), 147 D.L.R. (4th) 739; 128 F.T.R. 81 (T.D.); Mohawk Council of Kahnawake v. Jacobs, [1996] F.C.J. No. 757 (T.D.) (QL); Novopharm Ltd. v. Aktiebolaget Astra, [1996] 2 F.C. 839; (1996), 68 C.P.R. (3d) 117; 110 F.T.R. 307 (T.D.); Weyer v. Canada (1988), 83 N.R. 272 (F.C.A.); R. v. Wigglesworth, [1987] 2 S.C.R. 541; (1987), 45 D.L.R. (4th) 235; [1988] 1 W.W.R. 193; 61 Sask. R. 105; 28 Admin. L.R. 294; 37 C.C.C. (3d) 385; 60 C.R. (3d) 193; 81 N.R. 161; Trimm v. Durham Regional Police, [1987] 2 S.C.R. 582; (1987), 45 D.L.R. (4th) 276; 29 Admin. L.R. 106; 37 C.C.C. (3d) 120; 32 C.R.R. 244; 81 N.R. 297; 24 O.A.C. 357; Burnham v. Metropolitan Toronto Police, [1987] 2 S.C.R. 572; (1987), 45 D.L.R. (4th) 309; 29 Admin. L.R. 94; 37 C.C.C. (3d) 115; 32 C.R.R. 250; 81 N.R. 207; 24 O.A.C. 367; Trumbley and Pugh v. Metropolitan Toronto Police, [1987] 2 S.C.R. 577; (1987), 45 D.L.R. (4th) 318; 29 Admin. L.R. 100; 37 C.C.C. (3d) 118; 32 C.R.R. 254; 81 N.R. 212; 24 O.A.C. 372.
distinguished:
R. v. Généreux, [1992] 1 S.C.R. 259; (1992), 88 D.L.R. (4th) 110; 70 C.C.C. (3d) 1; 8 C.R.R. (2d) 89; 133 N.R. 241.
considered:
Pfeiffer v. Canada (Superintendent of Bankruptcy), [1996] 3 F.C. 584; 116 F.T.R. 173 (T.D.); Landry v. Gaudet (1992), 95 D.L.R. (4th) 289; 54 F.T.R. 307 (F.C.T.D.); Laquerre v. Canada (Royal Canadian Mounted Police) (1995), 33 Admin. L.R. (2d) 268; 100 F.T.R. 241 (F.C.T.D.).
referred to:
Singh v. Canada (Secretary of State) (1994), 82 F.T.R. 68; 27 Imm. L.R. (2d) 176 (F.C.T.D.); Cedarvale Tree Services Ltd. v. L.I.U.N.A., Local 183, [1971] 3 O.R. 832; (1971), 22 D.L.R. (3d) 40; 71 CLLC 14,087 (C.A.); Bell Canada v. Communications, Energy and Paperworkers Union, [1997] F.C.J. No. 207 (T.D.); Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; (1990), 69 D.L.R. (4th) 489; [1990] 3 W.W.R. 289; 83 Sask. R. 81; 43 Admin. L.R. 157; 30 C.C.E.L. 237; 90 CLLC 14,010; 106 N.R. 17; Japan Electrical Manufacturers Assn. v. Canada (Anti-Dumping Tribunal) (1986), 32 D.L.R. (4th) 222; 12 C.E.R. 260; 72 N.R. 300 (F.C.A.); Sutton v. Canada (Employment and Immigration Commission) (1994), 74 F.T.R. 284 (F.C.T.D.); Bernier v. Kent Institution (1986), 7 F.T.R. 229 (F.C.T.D.); R. v. Sungalia, [1992] O.J. No. 3718 (Gen. Div.) (QL); R. v. Cocelli (1996), 15 O.T.C. 85 (Ont. Gen. Div.) (QL); R. v. Kyling, [1996] Q.J. No. 1566 (S.C.) (QL); Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255.
APPLICATION for judicial review of an RCMP adjudication board's decision quashing a summons to a prosecuting officer to appear as a witness on the grounds that it violated the principles of procedural fairness, represented an error of jurisdiction and violated the applicant's rights as guaranteed by Charter, section 7 and paragraph 11(d). Application dismissed.
counsel:
George P. L. Filliter for applicant.
Michael F. Donovan for respondent.
solicitors:
Wood Melanson Filliter, Fredericton, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
MacKay J.: This is an application for judicial review seeking a variety of remedies including prohibition, certiorari and declaratory relief under sections 18 [as am. by S.C. 1990, c. 8, s. 4] and 18.1 [as enacted idem, s. 5] of the Federal Court Act, R.S.C., 1985, c. F-7, as amended, including an order and a declaration pursuant to section 7, paragraph 11(d) and section 24 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter). The decision here impugned is an interlocutory ruling of an adjudication board constituted under section 43 [as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 16] of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 as amended (RCMP Act), to conduct a formal inquiry into the conduct of the applicant, which was alleged to be in breach of the RCMP Code of Conduct.
That decision, questioned by the applicant's amended originating notice of motion, filed on November 6, 1996 in accord with the order of Mr. Justice Lutfy dated October 18, 1996, was the basis of all forms of relief here sought and it was the object of submissions of the parties heard in Fredericton on October 16, 1997. These reasons concern my order now issued, dismissing the application for judicial review.
Background
The applicant has served nearly 25 years with the Royal Canadian Mounted Police. He was promoted to Corporal in 1987 and Sergeant in 1993. His most recent posting has been as the non-commissioned officer dealing with customs and excise matters in Fredericton, N.B. In 1995, the applicant was evaluated in a Senior Police Administration Course as a "credit to the Royal Canadian Mounted Police".
In April 1995, a temporary casual clerk of RCMP J Division in Fredericton complained that she had been sexually harassed by the applicant. The complaint was investigated to determine whether the subject-matter was criminal in nature. After consultation with the Director of Public Prosecutions, it was determined that there was insufficient evidence to warrant criminal proceedings. It was decided, however, that the complaint against the applicant should be investigated under the RCMP Code of Conduct to determine whether there was evidence of alleged breaches of that Code.
On April 5, 1995, the applicant was suspended with pay and was advised that an internal investigation was being conducted into allegations made by an individual regarding his conduct. The applicant later learned that other individuals had also made complaints about his conduct.
A recommendation was made to the Divisional Commanding Officer, the respondent in these proceedings, who determined to initiate formal discipline proceedings under section 43 of the RCMP Act. An adjudication board was constituted pursuant to subsection 43(2) to inquire into alleged breaches by the applicant of the Force's Code of Conduct. The notice of disciplinary hearing dated December 4, 1995 contains eight allegations of sexual harassment against the applicant, involving five female RCMP civilian employees. The applicant was informed in this notice that the sanction that would be sought, should a contravention be established, would be dismissal from the Force.
The board commenced its hearings into the allegations on June 3, 1996. Apparently, some allegations were subsequently withdrawn. During the hearing, the first complainant presented evidence that allegedly differed substantially from the documentary evidence that had been disclosed to the applicant prior to commencement of the hearing. As a result, during the course of the hearing, the applicant's representative made several motions to exclude evidence on the basis of non-disclosure. These motions were denied.
On June 6, 1996, the applicant's representative determined, on cross-examination, that the original complainant had made complaints about two other officers at about the same time as complaints were made about the applicant. Neither of these other complaints had been disclosed to the applicant, despite the fact that one of those complaints, for harassment of a non-sexual nature, contained the applicant's name and the file about this complaint, it was urged, should have been known to the prosecuting officers.
The applicant moved for dismissal of the complaints of the original complainant on the basis of this failure to disclose material evidence. On June 6, 1996, the board found that at least one of the prosecuting officers, and possibly both, were aware of the existence of the file on the non-sexual harassment complaint, but it held that those officers did not intend to mislead the hearing or to show any malice or prejudice towards the applicant.
The applicant became concerned about the role played by one prosecuting officer, Sgt. Keating, in the investigation and the presentation of the complaints. Also, it appeared to the applicant that the fees of counsel advising the first complainant may have been paid by the RCMP and that Sgt. Keating had played a role in making arrangements for that. The applicant came to suspect a possible conspiracy against him and to believe that evidence in regard to other issues, such as the apparent mental state of the original complainant, had not been disclosed to him. On June 10, 1996, the applicant instructed counsel to summon Sgt. Keating as a witness and a summons, directing the latter to appear as a witness, was issued by the Registrar of the board, and was executed during the course of proceedings that day.
On June 10 and 11, 1996, the applicant moved that Sgt. Keating, as a witness subject to a summons could no longer act as a prosecuting counsel and should therefore be removed from the hearing until called as a witness, as was the case with witnesses generally. Counsel argued that Sgt. Keating was part of a conspiracy to mislead the board and withhold information from it and from the applicant. On June 11, 1996, an application was brought to the board by a senior RCMP officer to quash the summons served on Sgt. Keating. After hearing arguments from both sides, the board quashed the summons issued by the Registrar and ruled that there was insufficient evidence to support the alleged conspiracy, and thus the basis alleged for the summons was not established. In the result, the summons to Sgt. Keating was quashed, and the applicant's motion to the board that Sgt. Keating be removed from the hearing, pending his testimony as a witness, was dismissed.
It is the decision quashing the summons that the applicant now challenges on the basis that it violates the principle of procedural fairness, represents an error of jurisdiction and amounts to a violation of the applicant's rights as guaranteed by section 7 and paragraph 11(d) of the Canadian Charter of Rights and Freedoms. More specifically, it is submitted that the RCMP Act does not explicitly empower the board to quash a properly issued summons and that, as a result, the board acted beyond its jurisdiction. It is urged that the decision to quash the summons was incorrect or patently unreasonable and, in any event, had the effect of violating the rules of common law procedural fairness and fundamental justice under section 7 of the Charter by interfering in the applicant's ability to present his case. Further, the applicant submits that the board, as constituted, does not meet the requirements of judicial independence required by paragraph 11(d) of the Charter.
Analysis
After hearing counsel for the parties and having reviewed the parties' submissions, I conclude that this application should be dismissed. In my view, the application is premature except with respect to the challenge to the adjudication board, and the validity of the provisions of the RCMP Act under which the board was constituted, under paragraph 11(d) of the Charter.
The courts have ruled consistently that a "decision" to be subject to judicial review must be a final decision, not an interlocutory, procedural ruling. In Szczecka v. Canada (Minister of Employment and Immigration) ,1 Mr. Justice Létourneau stated for the Federal Court of Appeal that:
. . . unless there are special circumstances there should not be any appeal or immediate judicial review of an interlocutory judgement. Similarly, there will not be any basis for judicial review, specially immediate review, when at the end of the proceedings some other appropriate remedy exists. These rules have been applied in several Court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses, which interfere with the sound administration of justice and ultimately bring it into disrepute. In the case of judicial review under s. 28 of the Federal Court Act, which is the case now before the Court, the interpretation of that section by the Court is even more strict.
In Groupe G. Tremblay Syndics Inc. v. Canada (Superintendent of Bankruptcy),2 Madam Justice Tremblay-Lamer invoked Szczecka in a section 18.1 proceeding as authority for the proposition that "unless there are special circumstances, there should not be any immediate judicial review of an interlocutory decision. The decisions in respect of which judicial review is available are those that make a final ruling on the merits of a case." Similarly, in Mohawk Council of Kahnawake v. Jacobs ,3 Her Ladyship held that unless the applicant can show special circumstances, the Court would not review an interlocutory decision.
In Novopharm Ltd. v. Aktiebolaget Astra,4 Mr. Justice Gibson, referring to Szczecka, wrote:
. . . first, there is authority in this Court to engage in judicial review under section 18 of the Federal Court Act of an interlocutory judgment or decision and, second, that in special circumstances, it is appropriate to exercise that authority. In any other circumstances, to do so would be to risk "breaking up cases and the resulting delays and expenses which interfere with the sound administration of justice and ultimately bring it into disrepute".
The norm is that this Court will not intervene in judicial review to set aside interlocutory decisions unless there are exceptional circumstances. The nature of special circumstances justifying intervention in the case of an interlocutory decision has been discussed by the courts. In Pfeiffer v. Canada (Superintendent of Bankruptcy),5 where the applicant challenged the constitutionality of a tribunal to which the Superintendent of Bankruptcy had delegated his powers, Madam Justice Tremblay-Lamer wrote:
In my opinion, since this issue involves an attack on the very existence of the tribunal, there is a special reason permitting judicial review at this stage of the proceedings. As the Court held in Mahabir v. Canada (Minister of Employment and Immigration), ([1992] 1 F.C. 133 (C.A.), at p. 140) "it is a final decision that disposes of a substantive question before the tribunal".
In Novopharm,6 Mr. Justice Gibson held that no special circumstances existed in that case, which concerned judicial review of an interlocutory decision made in an opposition proceeding under the Trade-marks Act [R.S.C., 1985, c. T-13]. After discussing the discretionary nature of the remedies sought, he concluded that
. . . there is an adequate alternative remedy available to the applicant, that is to say, an appeal at the end of the opposition proceeding, assuming for the moment that the opposition is not resolved in favour of the applicant herein, during the course of which the decision of the Registrar here under review could be challenged. The nature of the error on the part of the Registrar alleged by the applicant herein in effect derives from an interpretation or misinterpretation of the Trade-marks Act and the Regulations [Trade Marks Regulations, C.R.C., c. 1559] made thereunder. The appeal provided under the Trade-marks Act is to this Court, the same institution from which judicial review is being sought and therefore there can be no question that the appeal right might somehow be of a lesser qualitative nature. Thus, I conclude that the range of factors that should be considered in determining whether to enter into judicial review here augur against entertaining judicial review.
In the case at bar, it is argued for the applicant that the decision to quash the summons issued to Sgt. Keating is a final decision, but I am not persuaded that it falls into the class of decisions ordinarily subject to judicial review. It did not dispose of a substantive question before the tribunal, rather the decision of the board is clearly interlocutory in nature, dealing with a preliminary evidentiary issue, that is whether a summons to a prospective witness should be quashed. An appeal to the Commissioner from the decision of the board is provided for under section 45.14 [as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16] of the RCMP Act, on "any ground of appeal" concerning a finding by the board that an allegation of a contravention of the Code of Conduct by a member is established or concerning any sanction imposed. This is broad enough to encompass complaints regarding alleged procedural errors, and the Commissioner can order a new hearing or replace the board's decision with his own under section 45.16 [as enacted idem ]. As a result, unless there are special circumstances justifying intervention by the Court at this stage, the proceedings of the adjudication board should not be stayed further. Any error in a procedural decision may be the subject of appeal, or possibly even of later judicial review if a procedural error of significance is not remedied by the Commissioner's disposition of an appeal.
In my opinion, none of the other arguments raised by the applicant are persuasive that the board committed egregious error or that there are special circumstances that would warrant the Court's intervention at this stage. First, in my opinion, the board did not make an error of jurisdiction in quashing the summons. There are many cases indicating that administrative boards similar to the adjudication board in this case are "masters of their own procedure", subject only to the express constraints of their empowering acts and the requirements of procedural fairness.7 I cannot conclude, despite the argument for the applicant, that express statutory authority is necessary for this board, in determining its own procedural requirements, to quash the summons here issued to the prosecuting officer. No constraint on the board's authority for procedural decisions is set out by the RCMP Act and applicable regulations. The only limitations arise from the requirements of procedural fairness. Moreover, section 4 of the Commissioner's Standing Orders (Practice and Procedure), SOR/88-367 as amended (the Standing Orders), provides that "Where any matter arises during the course of proceedings before a board, not otherwise provided for in these Rules, the board may take whatever steps it considers necessary to settle the matter."
Second, in my opinion, there was no violation of procedural fairness in this case, at least in the manner the impugned decision was made. The record shows that decision itself was made in after both sides had opportunity to present their respective positions and the board then arrived at a reasoned decision. The impact of this procedural decision on the ultimate outcome of the proceedings is not a matter of concern, for the purposes of judicial review at this stage, in considering procedural fairness.
That said, if the decision to quash the summons were to prevent the applicant from having a "full and ample opportunity . . . to present evidence, to cross-examine witnesses and to make representations at the hearing" as required by subsection 45.1(8) [as enacted idem ] of the RCMP Act, there could then be an error in law on the basis that the decision violates the requirements of the Act. At this stage, I am not persuaded that there was any such error. In my view, the RCMP Act cannot be interpreted as giving the applicant an unlimited right to call witnesses, particularly in light of section 6 of the Standing Orders, which permits the board to dismiss witnesses. For the applicant, it is urged that a witness cannot be dismissed until he or she is called during the proceedings, but I am not persuaded this is so.
The board made a decision to quash a summons issued on its behalf by the Registrar and effectively it dismissed a summoned witness on grounds and in a fashion, as the respondent points out, consistent with precedents dealing with similar circumstances; namely, lawyers engaged in litigation being called as witnesses by opposing counsel. There are several cases indicating that, at least in criminal trials, "[t]here is a persuasive burden on the lawyer who seeks to force opposing counsel to go into the witness box and relinquish his role as counsel. The persuasive burden is to show relevance and necessity."8 I see no reason why this standard should not be applied in disciplinary matters, and the board's decision in effect, in my view, here applied that standard. It found there was not evidence of a conspiracy alleged by the applicant. Thus the relevance of any testimony of the summoned witness, Sgt. Keating, in relation to an alleged conspiracy, at least at this stage in the proceedings, would not be relevant to issues before the board in its inquiry. In so doing, the board acted by interlocutory decision without error reviewable by judicial review at this stage.
Third, I am not satisfied that there has been any constitutional violation by the board. For the record, I note that although notice of a constitutional question was among documents initially filed by the applicant, as I understand it that notice was not served upon all attorneys general in accord with section 57 [as am. by S.C. 1990, c. 8, s. 19] of the Federal Court Act, R.S.C., 1985, c. F-7, as amended. Nevertheless, having considered the Charter arguments raised on behalf of the applicant, I deal with these having concluded that the decision of the board and the provisions of the RCMP Act here in question are not invalid or inoperable on constitutional grounds.
For the applicant it is urged that section 7 of the Charter has been contravened by the board's failure to ensure the proceedings were conducted in a manner consistent with procedural fairness, or with fundamental justice assured by that provision. Reliance is placed on the comments of Mr. Justice La Forest of the Supreme Court in Andrews v. Law Society of British Columbia9 that the issue of whether the right to earn a livelihood is a value constitutionally protected under the Charter remains open. In this Court, that matter appears to have been resolved in the negative.
In Weyer v. Canada,10 the Federal Court of Appeal dealt with the applicability of section 7 to a proceeding under the Public Service Employment Act, R.S.C. 1970, c. P-32, which concerned the dismissal of an employee from his employment for alleged incompetence. The applicant there urged that the absence of provisions enabling him to subpoena witnesses to testify before the board in question was a denial of the rights guaranteed to him by section 7. In dismissing this ground of argument, Mr. Justice Mahoney wrote:
The proceeding before the Appeal Board under subsection 31(3) of the Public Service Employment Act was concerned with the applicant's employment status. It appears that some courts, at least at trial level, have construed the right to liberty to embrace a right to work. A useful, current, survey of the cases may be found in Wilson et al. v. Medical Services Commission of B.C., [1987] 3 W.W.R. 48 at 69 ff.
Insofar as this Court is concerned, the matter has been authoritatively determined. In Smith, Kline & French v. A.G. of Canada, [1987] 1 F.C. 274 at 313, Strayer, J., stated:
In my view the concepts of "life, liberty and security of the person" take on a colouration by association with each other and have to do with the bodily well-being of a natural person. As such they are not apt to describe any rights of a corporation nor are they apt to describe purely economic interests of a natural person.
On appeal, 78 N.R. 30 at 34, Hugessen, J., speaking for this Court said:
Insofar as concerns the arguments based upon . . . the alleged denial of the rights to life, liberty and security of the person under s. 7 of the Charter, I am in complete agreement with the trial judge's conclusions and with the reasoning by which he arrives at them. If anything he has given those arguments a fuller treatment than they deserve; any additional comments on my part would be superfluous.
Since rights guaranteed by section 7 of the Charter were not at risk in the Appeal Board proceeding, there is no merit in the applicant's submission.
In my view, these discipline proceedings under the RCMP Act, even if the possible sanction is loss of the applicant's employment, do not give rise to the application of section 7 of the Charter. Even if I were not bound by the decision of the Court of Appeal in Weyer, I would not find that section 7 was contravened in this case. It was not urged, rightly in my view, that fundamental justice would demand more than does procedural fairness in this case. Thus, for the reasons outlined above in the discussion of procedural fairness, in my opinion, at this stage, there has been no violation of fundamental justice protected by section 7, if it is here engaged, by the interlocutory decision, a preliminary evidentiary decision, by the board.
Finally, the applicant urges, in reliance on R. v. Généreux,11 that the proceedings in this case, by an internal body of the RCMP with a potential sanction of the loss of his liberty to pursue his lengthy career, are penal in nature and public in consequence and thus paragraph 11(d) of the Charter is applicable. That provision is that:
11. Any person charged with an offence has the right
. . .
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
For the applicant, it is submitted that the board in this case does not meet the requirements of "an independent and impartial tribunal" as required by paragraph 11(d ). The board's three members are appointed on a case-by-case basis, without remuneration for service on the board, apart from their regular salaries as continuing officers serving in the RCMP and subject to the RCMP Act, not independent in their continuing general service duties from the office of the Commissioner of the Force, and it is to him, ultimately, they must answer, and he, ultimately, has discretion to determine any appeal of the applicant from a finding of the board.
I note that, in my opinion, the challenge to the board's constitution, and to the statutory basis underlying it pursuant to paragraph 11(d) of the Charter, is an appropriate challenge at this stage in the board's proceedings. If the applicant's argument were persuasive, this would be a special circumstance warranting intervention of the Court on judicial review even though the decision impugned is clearly interlocutory in nature. If the constitution of the board were found to violate the applicant's rights under paragraph 11(d), the proceedings and all decisions of the board, including that here impugned, would be invalidated by the Court's necessary intervention. I hasten to say that I am not persuaded that in the circumstances of this case, paragraph 11(d) of the Charter is applicable. Thus, it is not contravened and paragraph 11(d) requirements are not the basis of special circumstances that would warrant the intervention of the Court.
I note that the respondent urged at the hearing that this challenge was not properly before the Court in view of the order of Lutfy J., dated October 18, 1996, which directed that an amended originating notice of motion be filed, concerned with the single decision of the board to quash the summons. It can be argued that that decision is questioned if the decision-maker's lawful authority is questioned as improperly constituted under the Charter, and I proposed to dispose of this argument on its merits.
In R. v. Wigglesworth,12 the Supreme Court determined that paragraph 11(h) applies only where the matter is of a criminal or quasi-criminal nature, public in the sense it is intended to promote public order and welfare within a public sphere of activity or if the matter involves the imposition of penal consequences. While that case did not concern paragraph 11(d), it did involve circumstances in which the appellant, a serving RCMP officer, was subject to a fine imposed by an internal discipline body and was also charged under the Criminal Code [R.S.C. 1970, c. C-34] in relation to the same conduct as had been dealt with by the internal body. In discussing the relationship of section 11 generally to discipline proceedings, the Court indicated that generally discipline proceedings would not attract the application of section 11, unless they involve true penal consequences, i.e. imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of the RCMP. The Code of Discipline involved in Wigglesworth generally was said not to be concerned with criminal or quasi-criminal proceedings but rather with the maintenance of discipline and integrity within the Force, though the Court there found that the possibility of imprisonment for major service offences under the RCMP Act, as then constituted, amounted to a true penal consequence attracting the application of section 11.
In R. v. Généreux, it was the public nature of the offences before the military court martial, alleged drug offences as well as desertion, and the nature of potential penalties, including imprisonment, that led the Supreme Court in that case to find the tribunal was required to be independent and impartial, in the nature of a judicial body in the traditional sense. In my opinion, Généreux is distinguishable from the case at bar on the basis of the wrongs there alleged and on the basis of the potential penalty.
Moreover, following Wigglesworth, this Court has determined that the RCMP disciplinary process is not inherently criminal or quasi-criminal and it does not generally involve proceedings of a public nature that engage section 11 of the Charter. It may be that if a substantive penalty were applicable in a given case, the penal consequences test of Wigglesworth would attract the application of paragraph 11(d) of the Charter, but that would not seem likely where lesser penalties support a conclusion that the sanction is intended simply to reinforce discipline within the RCMP.
In Landry v. Gaudet,13 Mr. Justice Joyal held that proceedings under the RCMP Act, concerned with an alleged disciplinary offence, for which a fine of $500, a reprimand and suspension from duty were proposed sanctions, were internal, not in any way public and did not involve sanctions similar to penal consequences. Those proceedings were not subject to section 11 of the Charter, in particular they were not subject to paragraph 11(d) which the applicant there had urged was applicable, as the applicant here did.
Similarly, in Laquerre v. Canada (Royal Canadian Mounted Police),14 Mr. Justice Teitelbaum was of the view that paragraph 11(d) did not apply where the applicant in that case, charged with disgraceful conduct under the RCMP Act, had a fine imposed on him of two weeks' salary. His Lordship held that:
While this may be a large amount of money for the Applicant, I would not say that it is aimed at redressing the wrong done to society. It is rather a sum that is imposed to maintain discipline within the limited sphere of activity of the R.C.M.P.
In the case at bar, the RCMP Act does not provide for imprisonment as a possible sanction if the board finds that an alleged breach of the code of conduct is established. Yet, the applicant urges that the possibility of dismissal from the RCMP in this case constitutes a sanction with true penal consequences within the test established in Wigglesworth. Later Supreme Court cases have considered the principles in Wigglesworth in the context of police disciplinary proceedings. In Trimm v. Durham Regional Police,15 the Supreme Court followed Wigglesworth and held that a police disciplinary proceeding under regulations of the Ontario Police Act, R.S.O. 1980, c. 381, was not subject to section 11, even where the regulations included the penalty of dismissal for "major offenses". In Burnham v. Metropolitan Toronto Police ,16 and Trumbley and Pugh v. Metropolitan Toronto Police,17 the appellants were charged with "major offenses" under the regulation and, thus, faced possible dismissal. The Supreme Court ruled that paragraph 11(d ) did not apply.
I conclude from these cases that the sanction of dismissal in a police disciplinary matter is not a "penal consequence" that creates a requirement for "an independent and impartial tribunal" within paragraph 11(d ). The possible sanction is not penal in the sense necessary for application of that Charter requirement but rather is intended to maintain discipline within the ranks of the RCMP. The board constituted under section 43 of the RCMP Act to consider alleged breaches of the code of conduct in this case is not a body that requires the aspects of judicial independence and impartiality comparable to those of a court secured by paragraph 11(d) of the Charter. The board has an obligation to be impartial in its work consistent with the principles of fairness, but its composition of serving RCMP officers does not violates paragraph 11(d).
Conclusion
An order goes dismissing this application for judicial review. It is my conclusion that there are not special circumstances that would warrant the Court's intervention on an application for judicial review of a decision that is interlocutory and not a final decision on substantive issues before the board. The board is not constituted contrary to the requirements of paragraph 11(d) of the Charter and its decision here in question to quash the summons issued to the prosecuting officer was not made in a manner contrary to the principle of procedural fairness, nor was it contrary to section 7 of the Charter. This Court declines to intervene in the proceedings of the adjudication board at this stage.
I note that the applicant requested costs on a solicitor and client basis, essentially because the filing of an affidavit of the prosecuting officer, including in an exhibit the allegations and particulars of unproven charges against the applicant, was vexatious. It is said those details were irrelevant to the respondent's application for which the affidavit was filed in support, that the public filing of that information was contrary to RCMP policy and to the provisions of the Privacy Act, R.S.C., 1985, c. P-21, and was intended to embarrass the applicant. Further, it is said in written submissions that "by releasing this information to the public in this fashion, the Applicant has lost his right to a fair and impartial hearing".
In my opinion, filing of affidavit material in judicial proceedings, even if it were ultimately found to be irrelevant, does not deprive the other party of a right to a fair and impartial hearing. The suggestion that inclusion of the information in an exhibit to the affidavit filed was contrary to the Privacy Act, while not argued, in my opinion has no merit in light of the exceptions permitting disclosure of personal information under section 8 [as am. by R.S.C., 1985 (2nd Supp.), c. 20, s. 13; (3rd Supp.), c. 1, s. 12; S.C. 1994, c. 35, s. 39] of the Act. The relevance of the information for purposes of the earlier interlocutory motion of the respondent is not an issue requiring determination here.
Thus, there is no special reason within the meaning of Rule 1618 [as enacted by SOR/92-43, s. 19] to consider any award of costs to the applicant, even if his motion had been successful, and clearly no basis is made out for any award of solicitor-client costs. There will be no order concerning costs, as is usual in judicial review proceedings, in accord with Rule 1618 of the Federal Court Rules, C.R.C., c. 663, as amended.
1 (1993), 116 D.L.R. (4th) 333 (F.C.A.), at p. 335.
2 [1997] 2 F.C. 719 (T.D.), at pp. 737-738.
3 [1996] F.C.J. No. 757 (T.D.) (QL). See also Singh v. Canada (Secretary of State) (1994), 82 F.T.R. 68 (F.C.T.D.).
4 [1996] 2 F.C. 839 (T.D.), at p. 847.
5 [1996] 3 F.C. 584 (T.D.), at p. 596.
6 Supra, note 4, at p. 851.
7 Cedarvale Tree Services Ltd. v. L.I.U.N.A., Local 183, [1971] 3 O.R. 832 (C.A.), cited with approval in Bell Canada v. Communications, Energy and Paperworkers Union, [1997] F.C.J. No. 207 (T.D.); Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 685 ("It must not be forgotten that every administrative body is the master of its own procedure and need not assume the trappings of a court."); Japan Electrical Manufacturers Assn. v. Canada (Anti-Dumping Tribunal) (1986), 32 D.L.R. (4th) 222 (F.C.A.), at p. 234 (the Competition Tribunal is "master of its own procedure, is entitled to require that relevance to the issues before them be established."); Sutton v. Canada (Employment and Immigration Commission) (1994), 74 F.T.R. 284 (F.C.T.D.), at p. 289 ("It is generally accepted that a tribunal is the master of its own procedure, subject of course to any limitations expressed in its creating statute."); Bernier v. Kent Institution (1986), 7 F.T.R. 229 (F.C.T.D.), at p. 233 ("The principle that a tribunal, such as the disciplinary court, is the master of its own procedure is a well-established principle of law.").
8 R. v. Sungalia, [1992] O.J. No. 3718 (Gen. Div.) (QL), at para. 3. See also R. v. Cocelli (1996), 15 O.T.C. 85 (Ont. Gen. Div.); R. v. Kyling, [1996] Q.J. No. 1566 (S.C.) (QL).
9 [1989] 1 S.C.R. 143, at p. 201.
10 (1988), 83 N.R. 272 (F.C.A.), at p. 276.
11 [1992] 1 S.C.R. 259.
12 [1987] 2 S.C.R. 541.
13 (1992), 95 D.L.R. (4th) 289 (F.C.T.D.).
14 (1995), 33 Admin L.R. (2d) 268 (F.C.T.D.), at p. 293.
15 [1987] 2 S.C.R. 582.
16 [1987] 2 S.C.R. 572.
17 [1987] 2 S.C.R. 577.