[1994] 2 F.C. 356
T-2381-93
Kathy Marion Armstrong (Applicant)
v.
Commissioner N. D. Inkster of the Royal Canadian Mounted Police in his capacity as the Commissioner of the Royal Canadian Mounted Police, Deputy Commissioner J. D. Farrel of the Royal Canadian Mounted Police in his capacity as the Appropriate Officer, Superintendent E. P. Craig of the Royal Canadian Mounted Police in his capacity as the Designated Officer, Discharge and Demotion Board appointed pursuant to section 45.2 of the Royal Canadian Mounted Police Act, R.S.C., 1985. c. R-10, as amended, composed of Superintendent J. D. Maxwell (Chairman), Inspector D. M. A. McLay (Member) and Inspector J. P. R. Poitras (Member) and Inspector Mortimer of the Royal Canadian Mounted Police in his capacity as Officer in Charge of Langley Detachment, “E” Division (Respondents)
Indexed as: Armstrong v. Canada (Commissioner of the Royal Canadian Mounted Police) (T.D.)
Trial Division, Rothstein J.—Vancouver, December 7, 1993; Toronto, January 27, 1994.
RCMP — Commissioner upholding Discharge and Demotion Board decision — Whether discharge procedure followed — Administration Manual substantially complied with and no prejudice to applicant demonstrated — Evidence need not be placed before Board viva voce — Board meeting requirements of independence — Commissioner’s decision-making function not delegated to subordinate — Commissioner applied proper objective test in determining whether applicant suitable for position.
Judicial review — Decision of RCMP Commissioner upholding decision of Discharge and Demotion Board — Administration Manual substantially complied with and no prejudice to applicant demonstrated — Evidence need not be placed before Board viva voce — Independence of Board provided for by careful, deliberate drafting of RCMP Act provisions prescribing fair, appropriate discharge procedure — Inappropriate for Court to impose additional requirements — Commissioner’s decision-making function not delegated to subordinate — Commissioner applied proper objective test in determining applicant unsuitable for position.
The applicant was an RCMP constable. Her difficulty in writing tickets and reports, which caused problems in prosecuting offences, led to the decision of a Discharge and Demotion Board that the applicant should be discharged for unsuitability. An appeal to the Commissioner was dismissed.
This was an application for judicial review of the Commissioner’s decision on the grounds that certain conditions precedent to the Commissioner having jurisdiction had not been satisfied; the requirements of natural justice had not been met and there were errors in the Commissioner’s decision. This was the first case of its kind under the current RCMP Act.
Held, the application should be dismissed.
The argument that the discharge procedure provided for in the Administration Manual had not been properly followed—applicant had not been put back on progress reporting before being served with a notice of shortcomings—was without basis. First, the Administration Manual did not have the force of law. Second, even if it did, there had been substantial compliance with it and no prejudice to the applicant had been demonstrated.
The fact that the evidence upon which the Discharge and Demotion Board relied in finding against the applicant had not been presented through sworn testimony, so that there was no opportunity for cross-examination, did not constitute a breach of the rules of natural justice. The scheme of the Act and Standing Order was that the RCMP’s case was to be presented by documentary evidence and there was no requirement that counsel for the appropriate officer call viva voce evidence in chief. Nor had there been any request by the applicant to the Board that the authors of the documents be produced for cross-examination. Semble: while there may not be an obligation to grant such requests, a board must treat them seriously and decide each case according to its own circumstances, having regard to the statements in dispute, alternative means of contradicting them and other relevant factors.
The independence of the Discharge and Demotion Board was questioned on the ground that the Chairman and one member were not full-time adjudicators. Paragraph 11(d) of the Charter, which guarantees “a fair and public hearing by an independent and impartial tribunal”, did not apply since the applicant was not a “person charged with an offence”. A consideration of the procedures contained in the RCMP Act indicated careful and deliberate drafting of provisions by which Parliament prescribed a fair and appropriate discharge procedure, including the constitution of the discharge and demotion board, and an independent External Review Committee. The Court would not redraft the Act to engraft upon it additional requirements of independence thought more consonant with the requirements of natural justice.
The résumé prepared by a member of the Commissioner’s staff and upon which the Commissioner relied in making his decision did not contain facts and material not before the Discharge and Demotion Board.
Nor did the Commissioner delegate to a member of his staff his decision-making function with respect to the applicant’s discharge. While the Commissioner did receive assistance from a member of his staff, who prepared a complete résumé of the case, with comments, and raised the important concerns and questions which the Commissioner should address, the Commissioner himself was left to make his decision independently. There was no improper delegation and no breach of natural justice.
The Commissioner adopted the appropriate objective test for deciding whether the applicant was suitable for her position. He considered the applicant’s performance with respect to her ability to function, and do the required paperwork, at any detachment as a level 01 general policing constable.
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], s. 11(d).
Commissioner’s Standing Orders (Practice and Procedure), SOR/88-367, ss. 18, 22.
Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 21(2) (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 12), 25 (as am. idem, s. 16), 45.18 (as enacted idem), 45.19 (as enacted idem), 45.2 (as enacted idem), 45.22 (as enacted idem), 45.23 (as enacted idem), 45.24 (as enacted idem), 45.25 (as enacted idem), 45.26 (as enacted idem).
CASES JUDICIALLY CONSIDERED
APPLIED:
Furnell v. Whangarei High Schools Board, [1973] A.C. 660 (P.C.); Pearlberg v. Varty, [1972] 1 W.L.R. 534 (H.L.); Khan v. College of Physicians and Surgeons of Ontario (1992), 9 O.R. (3d) 641; 94 D.L.R. (4th) 193; 76 C.C.C. (3d) 10; 57 O.A.C. 115 (C.A.); Selvarajan v Race Relations Board, [1976] 1 All ER 12 (C.A.); Aro Canada Ltd. and Int’l Assoc. of Machinists, Lodge 1817, Re (1975), 10 L.A.C. (2d) 81 (Ont.).
DISTINGUISHED:
Willette v. Commissioner of the Royal Canadian Mounted Police, [1985] 1 F.C. 423; (1984), 10 Admin. L.R. 149; 56 N.R. 161 (C.A.); 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; Emerson and Law Society of Upper Canada, Re (1983), 44 O.R. (2d) 729; 5 D.L.R. (4th) 294; 41 C.P.C. 7 (H.C.); Sawyer and Ontario Racing Commission, Re (1979), 24 O.R. (2d) 673; 99 D.L.R. (3d) 561 (C.A.).
CONSIDERED:
Spring v. Law Society of Upper Canada (1988), 64 O.R. (2d) 719; 50 D.L.R. (4th) 523; 30 Admin. L.R. 151; 28 O.A.C. 375 (Div. Ct.).
REFERRED TO:
Valente v. The Queen et al., [1985] 2 S.C.R. 673; (1985), 52 O.R. (2d) 779; 24 D.L.R. (4th) 161; 23 C.C.C. (3d) 193; 49 C.R. (3d) 97; 19 C.R.R. 354; 37 M.V.R. 9; 64 N.R. 1; 14 O.A.C. 79.
AUTHORS CITED
Mullan D. J. Administrative Law, 2d ed., Toronto: Carswell, 1979.
APPLICATION FOR JUDICIAL REVIEW of a decision of the Commissioner of the RCMP upholding the decision of a Discharge and Demotion Board to discharge the applicant from the RCMP on the ground of unsuitability. Application dismissed.
COUNSEL:
Karl F. Warner for applicant.
George C. Carruthers for respondents.
SOLICITORS:
Warner, Scarborough, Herman & Harvey, New Westminster, British Columbia, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment rendered in English by
Rothstein J.: This is an application for judicial review of a decision of N. D. Inkster, Commissioner of the Royal Canadian Mounted Police (RCMP), dated September 24, 1993, upholding a decision of a Discharge and Demotion Board to discharge the applicant from the RCMP. The applicant seeks an order quashing Commissioner Inkster’s decision and reinstating her with full pay, privileges and seniority as a member of the RCMP.
THE FACTS
The applicant joined the RCMP on November 20, 1985. She completed her training on June 2, 1986, and on June 18, 1986, was posted to the Executive/Diplomatic Protection Section in Vancouver. After approximately five months, she was posted to the Langley Detachment in British Columbia where she worked for some four years. On November 11, 1990, she was seconded to the Vancouver International Airport. One month later, on December 18, 1990, she was posted back to Langley.
Commencing in October 1987, Performance Evaluation Profiles (PEP) were periodically completed by the applicant’s supervisors covering the applicant’s performance for a prior period (usually about one year). Because of critical comments on her PEPs, primarily relating to apparent difficulty she was having with paperwork, such as writing up tickets and reports, which resulted in difficulties at the prosecution and trial stages of proceedings, a system of progress reporting was instituted for the applicant on a more frequent basis. On March 3, 1991,[1] the applicant was served with a notice of shortcomings. This twelve-page notice detailed various deficiencies in the applicant’s work over the period of her posting at Langley and advised her of the steps she was to take to correct the situation. The notice concluded by advising the applicant that over the three months following March 3, 1991, her performance would be closely monitored and reported on in three progress reports. She was to be given reasonable assistance, guidance and supervision in an attempt to correct the shortcomings. Should she fail to attain a satisfactory level of performance, the notice indicated that she would be recommended for discharge from the RCMP.
The three progress reports indicated no improvement by the applicant. As a result, on July 8, 1991, the applicant was provided with an order by officer in charge giving her notice that he was recommending that a notice of intent to discharge be initiated. Also, by the order by officer in charge, the applicant was removed from active police work. On October 16, 1991, the appropriate officer (applicant’s Commanding Officer) signed a notice of intention respecting discharge or demotion in respect of the applicant.
As a result of the July 8, 1991 order by officer in charge, the applicant took two steps. One was to grieve the order of July 8, 1991, removing her from active police work. The other was to request a hearing before a Discharge and Demotion Board in respect of her proposed discharge.
The applicant’s grievance to a level I adjudication was unsuccessful. However, her grievance to a level II adjudication was successful and she was ordered reinstated to active police work. The level II adjudicator did not deal with the merits of the applicant’s case but only with the jurisdiction of the officer in charge to remove the applicant from active police duties pending further discharge proceedings. The level II adjudicator found that the jurisdiction of the officer in charge only permitted him to recommend that a member be discharged. He did not have the jurisdiction to remove or suspend the applicant from her work pending further discharge proceedings.
Pursuant to her other request, a Discharge and Demotion Board was appointed. On June 8, 1992, after hearings on March 2 to 6, 1992, this board decided that the applicant should be discharged from the RCMP on the ground of unsuitability.
The applicant appealed the decision of the Discharge and Demotion Board to the Commissioner. Before deciding an appeal, the Commissioner is required, pursuant to subsection 45.25(1) [as enacted 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 refer the case to the External Review Committee. In this case, the External Review Committee rendered its decision on July 8, 1993, finding that the discharge ordered by the Discharge and Demotion Board was not appropriate and recommended that the applicant be transferred to another posting.
The Commissioner then considered the appeal. On September 24, 1993, he found that the ground of unsuitability had been established in respect of the applicant and that the appeal of the applicant from the decision of the Discharge and Demotion Board should be dismissed.
THE ISSUES
The applicant says that the decision of Commissioner Inkster should be quashed because (a) certain conditions precedent to the Commissioner having jurisdiction to make his decision had not been satisfied; (b) there has not been adherence to the requirements of natural justice; and (c) there were errors in the Commissioner’s decision itself.
Counsel advised me that this was the first case of its kind under the current RCMP Act. For this reason, I will deal with each argument raised by counsel for the applicant in some detail.
1. Applicant’s counsel submits that between December 11, 1990, when the applicant was provided with her last unsatisfactory PEP, and March 3, 1991, when she was given a notice of shortcomings, she was entitled to a progress report process which was not afforded her. He argues that this is a condition precedent to all the following actions that took place, culminating in Commissioner Inkster’s decision. This condition not being satisfied, there was no jurisdiction for the issuance of the notice of shortcomings, the proceedings and decision of the Discharge and Demotion Board and the decision of the Commissioner.
The statute, regulations and rules that govern the RCMP, in respect of discharges, are the RCMP Act, regulations made by the Governor in Council pursuant to the Act and rules made by the Commissioner pursuant to subsection 21(2) [as am. idem, s. 12] of the RCMP Act. These rules are referred to as Commissioner’s Standing Orders. Counsel for the respondents produced a series of Commissioner’s standing orders published in the Canada Gazette, Part II. Nothing in the RCMP Act, the regulations or the Commissioner’s standing orders sets forth the progress reporting procedure which the applicant says was denied her in this case.
Counsel for the applicant submits, however, that the procedures which the applicant was denied are contained in the RCMP’s National Policy Career Management Manual and the Career Management Manual for “E” Division (British Columbia). These manuals are contained in the Administration Manual. A note on the front page of the Administration Manual states:
3. Each member shall observe and comply with all the regulations, standing orders, and procedural directives in this Manual, and is expected to interpret them reasonably and intelligently in the best interests of the RCMP.
Applicant’s counsel submits that this note makes compliance with the manuals mandatory and, in effect, gives them the force of law upon which the applicant may rely.
I cannot agree. The direction to officers and members of the RCMP to observe and comply with the manuals does not confer on them the force of law. This is the same type of directive one would expect to find in any business organization, implicitly or explicitly. It is a notice to employees that they are expected to follow the procedures applicable to them. Such procedures may have the force of law if they are contained in statutes or regulations, or Commissioner’s standing orders, but a direction to follow procedures, of itself, does not give the procedures the force of law.
The procedure which applicant’s counsel says was not followed was that the applicant was not put back on progress reporting before she was served with a notice of shortcomings. The National Policy Career Management Manual, under the heading “Unsatisfactory Performance” provides instructions to supervisors on this point (L.2.a. to L.2.e.). A supervisor who fails to follow these instructions would have to answer to his or her superior. But these instructions do not constitute a code of procedure that confers rights on a member of the RCMP.
Non-compliance with the manuals was considered by the Discharge and Demotion Board and the External Review Committee. The Discharge and Demotion Board found that there was substantial compliance with the manual. The Board stated at pages 5 and 6 of its reasons:
… the board is of the opinion that substantially the requirements of the policy have been met by the submission of the Performance Evaluation dated November, 1990, which includes the details of unsatisfactory performance, what advice was given the member, the expectations of what is required of the member and talks about action taken to provide reasonable guidance to the member. This was preceded by a series of performance memoranda called 1004’s which documented the shortcomings in the member’s performance, which would seem to be normal supervision, and was succeeded by the Notice of Shortcomings in March of 1991.
…
The board is satisfied that if the letter of the policy was not followed, that certainly the spirit was followed, and the motion is denied.
The External Review Committee found that the applicant was not seriously prejudiced by any deficiency in procedure. It stated at pages 43 and 44 of its decision:
The progress report referred to in these provisions has two main purposes: to inform a member that management is concerned about the member’s performance; and to provide management with enough information to decide what course of action is appropriate.
In this case, the Appellant is correct in saying that her 1990 Performance Evaluation Profile did not meet all the requirements of a progress report, especially CMM 2.L.2.c.2, CMM 2.L.2.e.1. and CMM 2.L.2.e.2.. On the other hand, the evidence reveals that she knew, or at least ought to have known, what she was facing and the record shows that she responded to the document in the following fashion: “Although I am not pleased with the results of this assessment. [sic] I plan to make every effort to improve the quality of my work and performance of my duties to a more acceptable level in the future.”
…
The defects invoked by the Appellant are of a merely procedural nature and did not detrimentally affect her. The evidence suggests that the Appellant’s 1990 Performance Evaluation Profile would have triggered the issuance of the Notice of Shortcomings even if provisions CMM 2.L.2.c. and CMM 2.L.2.e. had been fully complied with. I therefore find that the Appellant suffered no substantial prejudice. Her first preliminary motion should thus be denied.
I would agree with the Board and the External Review Committee. Even if the Administration Manual had the force of law (which I do not think it has), it was substantially complied with and no prejudice to the applicant has been demonstrated. Therefore no consequences should flow from the failure of the RCMP to follow the manual to the letter.
2. Applicant’s counsel submits that the evidence upon which the Discharge and Demotion Board relied in finding against the applicant was not presented through sworn testimony and there was no opportunity for cross-examination in respect of such evidence. He says this constituted a breach of the rules of natural justice resulting in the Discharge and Demotion Board’s decision being made without jurisdiction and therefore Commissioner Inkster’s decision on appeal also being made without jurisdiction.
Before the Board, the RCMP’s evidence was presented in written form. Initially, I had thought it somewhat unusual that the RCMP would produce its evidence in written form, especially in light of section 18 of the Commissioner’s Standing Orders (Practice and Procedure), SOR/88-367 which provides:
18. All testimony given before a board shall be given under oath or affirmation.
However, I have now concluded that the RCMP Act and the Commissioner’s Standing Orders (Practice and Procedure) do indeed contemplate the procedure followed in this case.
It was suggested that in discharge cases, the evidence of unsatisfactory performance would typically accumulate over a number of years. There was some impracticality in requiring the RCMP to call all of a member’s various supervisors as witnesses at a board hearing. While this may be the reason for the procedure contemplated by the legislation, it is the words of the statute and the standing order that lead me to the conclusion I have reached.
The RCMP Act [section 45.19 (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16)] provides that before any member is discharged, the member shall be served with a notice of intention to recommend discharge:
45.19 (1) Before any officer is recommended for discharge or demotion under this Part or any other member is discharged or demoted under this Part, the appropriate officer shall serve the officer or other member with a notice in writing of the intention to recommend the discharge or demotion of the officer or to discharge or demote the other member, as the case may be.
The notice is to include particulars of the acts or omissions constituting the ground of unsuitability:
45.19 …
(2) A notice of intention served on an officer or other member under subsection (1) shall include
(a) particulars of the acts or omissions constituting the ground of unsuitability on which it is intended to base the recommendation for discharge or demotion or the discharge or demotion, as the case may be;
The member is then given the opportunity to examine the material relied on in support of the recommendation:
45.19 …
(3) An officer or other member who is served with a notice under subsection (1) shall be given a full and ample opportunity to examine the material relied on in support of the recommendation for discharge or demotion or the discharge or demotion, as the case may be.
When a discharge and demotion board is appointed, the material that the member examined, forming the basis of the discharge recommendation, is to be given to the board [section 45.22 (as enacted idem)]:
45.22 …
(2) A discharge and demotion board shall, prior to reviewing the case before it, be provided by the appropriate officer with the material that the officer or other member requesting the review was given an opportunity to examine pursuant to subsection 45.19(3).
Nothing in the statute expressly provides that the RCMP is to put its evidence before a discharge and demotion board through witnesses. By contrast, the member, who is the subject of the discharge recommendation, is given such express right:
45.22 …
(3) A discharge and demotion board shall, after due notice to the officer or other member requesting the review, review the case before it and for that purpose shall give to the officer or other member a full and ample opportunity, in person or by counsel or a representative, to appear before the board, to make representations to it, to present documentary evidence to it and, with leave of the board, to call witnesses.
I would observe that under subsection 45.22(3), even the member seems to be given the right to produce documentary evidence and that this right is not conditional upon witnesses being called to identify and introduce the documentary evidence.
Section 22 of the Commissioner’s Standing Orders (Practice and Procedure) also describes the manner in which the RCMP may participate in a hearing before a board:
22. The representative of an appropriate officer may, at a review of an officer’s or other member’s case by a discharge and demotion board,
(a) make representations;
(b) present documentary evidence in response to the officer’s or other member’s case; or
(c) cross-examine or call witnesses in response to the officer’s or other member’s case.
It is noteworthy that counsel for the appropriate officer (Commanding Officer of the applicant in this case) may call witnesses in response to the member’s case, but nowhere is there a mention of the appropriate officer being able to call direct viva voce evidence.
I recognize that section 18 of the Commissioner’s Standing Orders (Practice and Procedure) says that all testimony shall be given under oath or affirmation. On reflection, I am of the view that this provision simply means that when viva voce evidence is called, the witness shall swear or affirm that what he or she will say will be true. The provision, by itself, does not imply that viva voce evidence is the only way in which evidence is to be placed before a board.
I am satisfied that the scheme of the Act and Standing Order is that the RCMP’s case is to be presented by documentary evidence and there is no requirement, and indeed no apparent right, for counsel for the appropriate officer to call viva voce evidence in chief.
This still leaves outstanding the applicant’s argument that she was denied the right of cross-examination on the written material placed before the Board by the RCMP. The affidavit of Staff Sgt. Allan Kenneth Mathews is relevant to this issue. Staff Sgt. Mathews was the appropriate officer’s representative, i.e. Commanding Officer’s counsel before the Board. Staff Sgt. Mathews deposed:
11. At no time prior to or during the hearing did Staff Sergeant German [counsel for the applicant] express to me or to the Board members, any desire to cross-examine the authors of any of the documents relied on by the Commanding Officer, including the four referred to above. Staff Sergeant German did not ask to cross-examine the authors of the documents nor did he request that the authors be produced for the purposes of cross-examination.
The applicant did not attempt to challenge this evidence. There was some doubt as to whether, before the Board hearing, Staff Sgt. German asked Staff Sgt. Mathews to produce the authors of some of the documents relied upon by the Commanding Officer. However, even if there had been a refusal by Staff Sgt. Mathews to produce witnesses, this does not constitute a breach of the rules of natural justice. Here, the evidence is that there was no request to the Board that the authors be produced for cross-examination and therefore there was no denial of natural justice by the Board.
The External Review Committee dealt with this argument at page 46 of its decision:
The Appellant also alleged that she did not have the opportunity to cross-examine the authors of the statements before they were admitted as evidence. The Board, by delaying the assessment of the statements’ probative value, protected her right to do so. As the Appropriate Officer pointed out, the Appellant was at liberty to adduce evidence questioning the statements’ value or to call their authors to testify. I cannot find that the Appellant was deprived of a full and ample opportunity to adequately prepare and present her case.
I agree with the External Review Committee. I think that the words “with leave of the board, to call witnesses” in subsection 45.22(3) are broad enough to include the situation of a member asking permission of the board to call, as witnesses for the purpose of cross-examination, the authors of written material placed before the board by counsel for the appropriate officer and relied upon by him or her.
It is true that such witnesses could only be called with leave of the board. However, it seems to me that where a member can demonstrate that it is necessary to contradict something appearing in the written material and that cross-examination is the means in which it is proposed to do so, a board would run a serious risk of breaching rules of natural justice if it refused leave. And, of course, because the member would be requesting that the authors be called for the purposes of challenging what they had written, the member or member’s counsel would have to be given the right of cross-examination even though it was the member who asked that the witnesses be called. Of course, counsel for the appropriate officer would have to be given the opportunity to adduce reply evidence in respect of new matters raised in the cross-examination. I do not mean to imply that a board must agree to every request to call authors of written material as witnesses. Each case must be decided on its own circumstances, having regard to the statements in dispute, alternative means of contradicting such statements and other relevant factors. However, boards must treat such requests seriously.
Applicant’s counsel did not point out to me anything in the materials submitted in writing to the Board that the applicant wished to contradict. Because there was no request to the Board by applicant’s counsel in the case at bar asking that the authors of reports be called as witnesses, there was no denial and therefore no breach of natural justice.
I would observe that the case at bar is distinguishable from Willette v. Commissioner of the Royal Canadian Mounted Police, [1985] 1 F.C. 423 (C.A.). In that case there was a request to cross-examine that was denied by the board. In addition, the procedures in Willette were quite different in that there, the board had the express authority to request more complete and specific information and if additional witnesses were required, the board had the authority to adjourn the hearing and request the Commanding Officer to obtain the witnesses. In that case there was conflicting and contradictory evidence. None of these circumstances or procedures were present or applicable in the case at bar.
I am satisfied that, in the case at bar, there was no error of natural justice in this respect.
3. Applicant’s counsel submits that the Discharge and Demotion Board was not independent. He says this is contrary to the rules of natural justice. He submits that to be independent, the members would have to have some permanency as discharge and demotion board members and could not be selected, ad hoc, from officers of the RCMP who are performing other functions.
It appears that one member of the Board in this case was a full time adjudicator with the Professional Standards Directorate of the RCMP. The Chairman had been a full time adjudicator up to 1989 but since then was assigned to other duties. For this Board, he and the other member were selected, ad hoc, from a list maintained for the purpose.
In making this argument, applicant’s counsel relies on R. v. Généreux, [1992] 1 S.C.R. 259. In Généreux, the proceedings of a General Court Martial were challenged on the grounds that the members and judge advocate were not independent as required by paragraph 11(d) 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]. Paragraph 11(d) guarantees a person who is charged with an offence the right:
11. …
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
In Généreux, Lamer C.J.C. found that the constitution of the General Court Martial violated paragraph 11(d) of the Charter because its members were not independent. The attributes of independence, taken from Valente v. The Queen et al., [1985] 2 S.C.R. 673 are security of tenure, financial security and institutional independence. While these conditions are susceptible to flexible application in order to suit the needs of different tribunals, the essence of each condition must be protected. Lamer C.J.C. observed that the Charter was not intended to undermine the existence of self-disciplinary organizations such as the Canadian Armed Forces and the RCMP and that the right granted by paragraph 11(d) to be tried by an impartial and independent tribunal is to be interpreted in that context.
In his written memorandum of argument in the case at bar, applicant’s counsel challenged the independence of the Discharge and Demotion Board on a wide range of grounds, but in oral submissions he restricted his independence argument to the ad hoc appointment of the Chairman and one member of the Discharge and Demotion Board who are not full time adjudicators.
On this point Lamer C.J.C. stated at page 303 of Généreux:
Furthermore, under the regulations in force at the time of the appellant’s trial, the judge advocate was appointed solely on a case by case basis. As a result, there was no objective guarantee that his or her career as military judge would not be affected by decisions tending in favour of an accused rather than the prosecution. A reasonable person might well have entertained an apprehension that a legal officer’s occupation as a military judge would be affected by his or her performance in earlier cases. Nothing in what I have said here should be taken to impugn the integrity of the judge advocate who presided at the appellant’s trial, nor to suggest that judge advocates in fact are influenced by career concerns in the discharge of their adjudicative duties. The point is, however, that a reasonable person could well have entertained the apprehension that the person chosen as judge advocate had been selected because he or she had satisfied the interests of the executive, or at least has not seriously disappointed the executive’s expectations, in previous proceedings. Any system of military tribunals which does not banish such apprehensions will be defective in terms of s. 11(d). At the very least, therefore, the essential condition of security of tenure, in this context, requires security from interference by the executive for a fixed period of time. An officer’s position as military judge should not, during a certain period of time, depend on the discretion of the executive.
Applicant’s counsel submits that in the case at bar, the Discharge and Demotion Board was not independent because two of its members did not have security from interference by the executive of the RCMP for a fixed period of time.
Applicant’s counsel also restricted his independence argument to what he asserted were requirements of natural justice. Although in his written material there is reference to the Charter, counsel for the applicant and respondents advised me that they had agreed that this issue should be decided on the basis of the requirements of natural justice and not on the basis of the Charter.
In passing, I would observe that section 11 of the Charter commences with the words:
11. Any person charged with an offence has the right ….
In this case the applicant is not a person charged with an offence. It seems plain that paragraph 11(d) would not apply in this case in any event.
I therefore turn to a consideration of the issue in the context of the relevant statutory provisions and the requirements of natural justice. Assuming, without deciding, that independence of the Discharge and Demotion Board is a requirement of natural justice, I think the question is: did Parliament, in the RCMP Act, simply omit such a requirement, in which case the Court will supply the omission, or did Parliament prescribe a code which has been carefully and deliberately drafted so as to establish a procedure which is fair and appropriate? If the latter is the case, this Court will not redraft the Act to engraft upon it additional requirements of independence it might think are more consonant with the requirements of natural justice.
In my opinion, a consideration of the discharge procedures contained in the RCMP Act indicate careful and deliberate drafting of provisions by which Parliament prescribed a fair and appropriate discharge procedure. The discharge and demotion board is provided for in Part V of the RCMP Act. Part V is entitled “Discharge and Demotion”. Under subsection 45.19(1) cited above, before a member is discharged, the member is to be served with a notice in writing of the intention to recommend discharge of the member. A member who is served with a notice of intention to discharge may then request a review of his or her case by a discharge and demotion board. The request is to be sent to the “appropriate officer” who, for purposes of discharges, would be the Commanding Officer of the member:
45.19 …
(4) An officer or other member, except a probationary member, who is served with a notice under subsection (1) may, within fourteen days after the day the notice is served, send to the appropriate officer a request in writing for a review of the officer’s or member’s case by a discharge and demotion board.
Upon receiving a request, the appropriate officer must forward it to the officer designated to appoint discharge and demotion boards:
45.19 …
(5) An appropriate officer shall forthwith after receiving a request under subsection (4) forward the request to the officer designated by the Commissioner for the purposes of this section.
Within seven days after he or she receives the request, the designated officer is to appoint three officers as members of a discharge and demotion board and notify the member of the names of the appointed officers [section 45.2 (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16)]:
45.2 (1) Within seven days after the day a designated officer receives a request under subsection 45.19(5), the designated officer shall appoint three officers as members of a discharge and demotion board to conduct the review requested and shall serve the officer or other member requesting the review with a notice in writing setting out the names of the officers so appointed.
Presumably this gives a member an opportunity of objecting to specific appointees if there are grounds for thinking that an appointee might not be impartial.
Certain officers are not eligible to be members of a discharge and demotion board:
45.2 …
(4) An officer is not eligible to be appointed as a member of a discharge and demotion board if the officer
(a) is the immediate superior officer of the member whose case is to be reviewed by the board; or
(b) is involved in the initiation or processing of the case that is to be reviewed by the board.
The decision-making function of the discharge and demotion board is provided for in subsection 45.23(1) [section 45.23 (as enacted idem)]. The board is to decide whether or not the ground of unsuitability has been established. Subsection 45.23(2) requires the board to issue a written decision, including a statement of its findings of fact, reasons, and when deciding that unsuitability is established, a statement recommending that the member be discharged:
45.23 (1) After reviewing the case before it, a discharge and demotion board shall decide whether or not the ground of unsuitability is established on a balance of probabilities.
(2) A decision of a discharge and demotion board shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision, reasons for the decision and a statement of the action taken by the board under subsection (3) or (4).
(3) Where a discharge and demotion board decides that the ground of unsuitability is established, the board shall
(a) recommend that the officer be discharged or discharge the other member, as the case may be, or
(b) recommend that the officer be demoted or demote the other member, as the case may be,
but the board shall not take the action referred to in paragraph (a) if the notice of intention served on that officer or other member was a notice to recommend demotion of the officer or to demote the other member, as the case may be.
The member is to be served with a copy of the decision:
45.23 …
(5) A discharge and demotion board shall serve each of the parties to the review by the board with a copy of its decision.
The member may then appeal the decision of the board to the Commissioner on any ground of appeal [section 45.24 (as enacted idem)]:
45.24 (1) A party to a review by a discharge and demotion board may appeal the decision of the board to the Commissioner, but no appeal may be instituted under this section after the expiration of fourteen days from the later of
(a) the day the decision is served on that party, and
(b) if that party requested a transcript pursuant to subsection 45.23(6), the day that party receives the transcript.
(2) An appeal lies to the Commissioner on any ground of appeal.
Before the Commissioner considers the appeal he shall refer the case to the RCMP External Review Committee consisting of a Chairman, Vice-Chairman and not more than three other members appointed by the Governor in Council for terms not exceeding five years. Members may not be removed except for cause. Nor are members or officers of the RCMP eligible to be appointed as members of the External Review Committee [section 25 (as am. idem)]:
25. (1) There is hereby established a committee, to be known as the Royal Canadian Mounted Police External Review Committee, consisting of a Chairman, a Vice-Chairman and not more than three other members, to be appointed by order of the Governor in Council.
(2) The Committee Chairman is a full-time member of the Committee and the other members may be appointed as full-time or part-time members of the Committee.
(3) Each member of the Committee shall be appointed to hold office during good behaviour for a term not exceeding five years but may be removed for cause at any time by order of the Governor in Council.
…
(5) No member of the Force is eligible to be appointed or to continue as a member of the Committee.
The Commissioner then considers the appeal on the basis of the relevant material, the transcript before the discharge and demotion board, the statement of appeal, the written submissions, the decision of the discharge and demotion board and the findings and recommendations of the External Review Committee [section 45.26 (as enacted idem)]:
45.26 (1) The Commissioner shall consider an appeal under section 45.24 on the basis of
(a) the material that the officer or other member was given an opportunity to examine pursuant to subsection 45.19(3),
(b) the transcript of any hearing before the discharge and demotion board whose decision is being appealed,
(c) the statement of appeal,
(d) any written submissions made to the Commissioner, and
(e) the decision of the discharge and demotion board being appealed,
and the Commissioner shall also take into consideration the findings or recommendations set out in the report, if any, of the Committee or the Committee Chairman in respect of the case.
When the Commissioner does not follow the recommendation of the External Review Committee he shall include in his decision the reasons for not following the recommendation:
45.26 …
(5) The Commissioner is not bound to act on any findings or recommendations set out in a report with respect to a case referred to the Committee under section 45.25, but if the Commissioner does not so act, the Commissioner shall include in the decision on the appeal the reasons for not so acting.
Parliament has thus laid out a detailed code respecting discharges from the RCMP. This elaborate procedure for discharging a member of the RCMP in the current RCMP Act seems to reflect a desire on the part of Parliament for fairness and accountability in the procedure of decision-making relative to discharges. In establishing these discharge provisions, Parliament has addressed the questions of impartiality and independence. The board is to be appointed by an officer designated for that purpose. Members are not to be immediate superiors of the member and are not to have participated in instituting or processing the case against the member. The names of board members are to be given to the member so that objections to specific individuals may be made. Parliament has also accepted that members of discharge and demotion boards are to be officers of the RCMP. It would have been open to Parliament to require that such boards consist of persons outside and independent of the RCMP but Parliament did not choose such an option.
There is an appeal from the board to the Commissioner. Before considering an appeal, the Commissioner is to refer the matter to the External Review Committee. This required reference to the External Review Committee provides for a review, independent of the RCMP, by a committee consisting of members appointed by the Governor in Council for fixed terms, i.e. with security of tenure as members of the External Review Committee. While Parliament did not give the External Review Committee final authority in discharge matters, where the Commissioner chooses not to follow the findings of the External Review Committee, he must set forth his reasons for not following them.
In my view, in prescribing the constitution of the discharge and demotion board in the context of the requirement of independence, Parliament has not omitted to address requirements of natural justice, leaving it for the Court to set down supplementary rules. This case, in my view, is of the type characterized in Furnell v. Whangarei High Schools Board, [1973] A.C. 660 (P.C.) in which Lord Morris of Borth-y-Gest, who delivered the majority judgment, stated at page 679:
In support of these claims the rules of natural justice were invoked. It becomes necessary therefore to consider whether the detailed and elaborate code which prescribes the procedure to be followed when there is a suggestion of an offence under section 158 is a code which gives scope for unfairness and whether in its operation the court in the interests of fairness must supplement the written provisions. In the present case do the well-known words of Byles J. in Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180, 194 apply, viz.: “ … although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature”? Or is the code one that has been carefully and deliberately drafted so as to prescribe procedure which is fair and appropriate? In whatever way the status of the appellant as a teacher is in law to be defined he agreed to serve under the conditions laid down in the regulations and unless some provisions are to be read into them or are incorporated in them it is clear that they were faithfully followed. It is not lightly to be affirmed that a regulation that has the force of law is unfair when it has been made on the advice of the responsible Minister and on the joint recommendation of organisations representing teachers employed and those employing. Nor is it the function of the court to re-draft the code. As was said in Brettingham-Moore v. Municipality of St. Leonards (1969) 121 C.L.R. 509, 524:
“The legislature has addressed itself to the very question and it is not for the court to amend the statute by engrafting upon it some provision which the court might think more consonant with a complete opportunity for an aggrieved person to present his views and to support them by evidentiary material.”
At page 681, Lord Morris quoted Viscount Dilhorne in Pearlberg v. Varty, [1972] 1 W.L.R. 534 (H.L.):
Viscount Dilhorne, having cited what Lord Reid said in Wiseman v. Borneman [1971] A.C. 297, 308, said, at p. 545:
“I would only emphasise that one should not start by assuming that what Parliament has done in the lengthy process of legislation is unfair. One should rather assume that what has been done is fair until the contrary is shown. And Parliament thought it fair that the person affected should have the right to be heard where leave was sought under section 51 of the Finance Act 1960 and have the right to make representations to the tribunal under section 28 of that Act. The omission so to provide in section 6 of the Income Tax Management Act 1964 cannot, as I have said, in my opinion be regarded as anything other than deliberate and, if deliberate, it should be assumed that Parliament did not think that the requirements of fairness made it advisable to provide any such rights for the person affected. If this was the view of Parliament, it would require a very strong case to justify the addition to the statute of requirements to meet one’s own opinion of fairness.”
It seems to me that what applicant’s counsel is asking me to do is to impose requirements of independence on discharge and demotion boards that Parliament did not see fit to impose. In essence, I am being asked to find that because members of discharge and demotion boards did not have a specified tenure as adjudicators, they did not have security of tenure and were therefore not independent as contemplated by Généreux, supra. Parliament, in providing for the appointment and constitution of the discharge and demotion board, and an independent External Review Committee, has, according to its perception of what impartiality and independence require, addressed those issues of concern to it. Given the attention that Parliament has paid to these requirements of impartiality and independence, I do not think it is appropriate for this Court to impose additional requirements.
I would add that while discharge proceedings are serious matters, members subject to such proceedings are not accused of offences as contemplated by paragraph 11(d) of the Charter. Indeed, the final decision in respect of a discharge is that of the Commissioner. Parliament obviously did not intend that discharges should be decided by independent tribunals such as arbitration boards, but left that right and responsibility with the Commissioner of the RCMP. This suggests to me that Parliament recognized the requirements of the RCMP, in the final analysis, to control its own discharges, subject to the necessity of review by an independent External Review Committee and an explanation by the Commissioner when the External Review Committee’s recommendations are not followed.
I would observe that counsel for the applicant stipulated that he did not challenge the impartiality of the Discharge and Demotion Board in this case.
As a result, I conclude that there is no requirement that the Discharge and Demotion Board have additional attributes of independence over and above those provided by Parliament in the RCMP Act.
4. Applicant’s counsel says that the résumé prepared by a member of Commissioner Inkster’s staff was relied upon by him in making his decision. Counsel argues that the résumé contains facts and material not before the Discharge and Demotion Board and which the applicant did not have an opportunity to challenge.
For purposes of considering the appeal of the applicant from the Discharge and Demotion Board, Commissioner Inkster had one of his staff, Sgt. B. R. M. Swann, prepare a résumé of the facts relating to the applicant’s employment with the RCMP, the various procedures that had been followed, the evidence before the Discharge and Demotion Board, the decision of the Board, and the findings and recommendations of the External Review Committee. The résumé also contained comments and recommendations. Applicant’s counsel points to three statements, on pages 18, 19 and 20 of the résumé, which he says constitute new facts not before the Board which the applicant did not have an opportunity to challenge:
[1] Since raters may not interpret scores in the same way, it is important to consider the narrative assessment in part 7A because it may explain the ratings and furnish their underlying rational.
[2] Further, supervisors may be reluctant to assign unsatisfactory ratings given the requirement for extensive documentation in such cases, the impact such ratings may have on a member’s career and the problems with motivation which may result.
…
[3] One psychologist was unaware of the Appellant’s history of problems with paperwork, a fact which may have influenced his opinion had it been known during his evaluation of her.
The first two comments, which I would characterize, not as facts, but as opinions of Sgt. Swann, follow from Sgt. Swann’s opinion that the External Review Committee’s analysis was deficient because it ignored narrative comments in the applicant’s PEPs. The entire paragraph in the résumé reads:
The Committee’s analysis seems problematic because the extensive narrative comments in the PEPs from 1987 to 1989 and other supporting documents (Notice of Shortcomings, Tab A; PEPs, Tabs K to N) have been ignored. Part 2B of the PEP is a subjective evaluation. Since raters may not interpret scores in the same way, it is important to consider the narrative assessment in part 7A because it may explain the ratings and furnish their underlying rationale. Further, supervisors may be reluctant to assign unsatisfactory ratings given the requirement for extensive documentation in such cases, the impact such ratings may have on a member’s career and the problems with motivation which may result. If the promotion process is considered as an analogy, it is clear that a member’s scores in part 2B alone are insufficient to determine merit for promotion. Policy requires a careful evaluation of the accompanying narrative assessments. Should not the same standard apply to discharge?
Sgt. Swann raises the concern for the Commissioner, that the External Review Committee came to its conclusion on the basis of ratings, without evaluating narrative comments in the profiles and reports. She explains why, in her opinion, reliance on ratings alone may be unsatisfactory. I can see nothing inappropriate about Sgt. Swann advising the Commissioner of her view as to the shortcomings in the findings of the External Review Committee that the Commissioner should consider when making his decision.
As to the third comment complained of by applicant’s counsel, respondents’ counsel produced a portion of the transcript before the Discharge and Demotion Board which indicated that one psychologist had been unaware of the applicant’s problems with paperwork. As to Sgt. Swann’s opinion that this may have influenced the psychologist’s opinion had it been known, this again is commentary or advice given to the Commissioner to assist him in his consideration of the evidence before the Discharge and Demotion Board. It is not a new fact.
It has not been demonstrated to me that Sgt. Swann placed new facts before the Commissioner that were not before the Discharge and Demotion Board.
5. Applicant’s counsel says that Commissioner Inkster was required to make the decision respecting the applicant’s discharge himself. The résumé, in applicant’s counsel’s submission, demonstrates that the Commissioner erred by delegating to his staff the decision-making function in respect of the applicant’s discharge. Applicant’s counsel points out that the first sixteen pages of both the résumé and Commissioner Inkster’s decision are identical. He says that Commissioner Inkster delegated his decision-making function in this case to Sgt. Swann, a function which he did not have the authority to delegate.
Guidelines for the determination of whether, and to what extent, the involvement of non-decision-makers in the decision-making process is or is not appropriate have been well summarized by Doherty J.A., of the Ontario Court of Appeal, in Khan v. College of Physicians and Surgeons of Ontario (1992), 9 O.R. (3d) 641 (C.A.), in which, at pages 672-673, he states:
There is no single formula or procedure referrable to the drafting process that can be uniformly applied across the very broad spectrum of decision-making, when determining whether the involvement of the non-decision-maker in the drafting process compromised the fairness of the proceedings or the integrity of the process. The nature of the proceedings, the issues raised in those proceedings, the composition of the tribunal, the terms of the enabling legislation, the support structure available to the tribunal, the tribunal’s workload, and other factors will impact on the assessment of the propriety of procedures used in the preparation of reasons. Certainly, the judicial paradigm of reason writing cannot be imposed on all boards and tribunals: IWA v. Consolidated-Bathurst Packaging Ltd., supra, at pp. 323-24 S.C.R., pp. 342-43 O.A.C.
It must also be recognized that the volume and complexity of modern decision-making all but necessitates resort to “outside” sources during the drafting process. Contemporary reason-writing is very much a consultive process during which the writer of the reasons resorts to many sources, including persons not charged with the responsibility of deciding the matter, in formulating his or her reasons. It is inevitable that the author of the reasons will be influenced by some of these sources. To hold that any “outside” influence vitiates the validity of the proceedings or the decision reached is to insist on a degree of isolation which is not only totally unrealistic, but also destructive of effective reason-writing.
Counsel for the applicant relies on Spring v. Law Society of Upper Canada (1988), 64 O.R. (2d) 719 (Div. Ct.). In Spring, a convocation of the Law Society of Upper Canada disbarred a lawyer for professional misconduct and conduct unbecoming a solicitor. The credibility of the solicitor was in issue. The decision of the discipline committee, on which convocation’s actions were based, had been drafted initially by an employee of the Law Society, the clerk to that committee. This was done on the basis of the committee’s findings, which were communicated to him. It was submitted that this had resulted in a breach of the rules of natural justice, in that such involvement by an employee of the prosecutor (the Law Society), gave rise to a reasonable apprehension of bias and also because the decision had, in effect, been taken or had been excessively influenced by someone other than those charged with that responsibility.
The majority of the Ontario Divisional Court dismissed the application for judicial review, holding that the bias argument failed on the ground that the clerk was not a member of the prosecutorial branch of the Law Society and that the actual decision had been taken by the discipline committee, notwithstanding the involvement of the clerk in the process of drafting the reasons. In so doing, the majority did, however, suggest that there were constraints on the extent to which the discipline committee could rely on such assistance. In the case at bar, counsel for the applicant submits that the involvement of Sgt. Swann was a breach of those constraints and amounted to impermissible input from a third party, resulting in a denial of natural justice to the applicant.
I think the concerns expressed by the majority in Spring, supra, about input into decisions by third parties and possible apprehension of bias, and other cases such as Emerson and Law Society of Upper Canada, Re (1983), 44 O.R. (2d) 729 (H.C.) and Sawyer and Ontario Racing Commission, Re (1979), 24 O.R. (2d) 673 (C.A.), are distinguishable from the case at bar on at least four grounds. First, in those cases, the tribunal accused of improperly delegating its decision-making function was the one charged with deciding, at the first instance, issues of credibility and fact, and seeing and hearing witnesses. In the case at bar, the Commissioner is an appeal tribunal and does not hear and see witnesses. He makes his decision on the basis of the record, the decision of the External Review Committee and written submissions. Second, the decision-making bodies in those cases had, as their prime function, the decisions they were charged with making and which they delegated. Here, the Commissioner has many functions, only one of which is to consider appeals in discharge and discipline matters.
Third, in Re Sawyer and Re Emerson, a representative of the party that brought the prosecution also wrote the reasons for the decisions. In the case at bar, Sgt. Swann was not involved in the proceedings against the applicant. In this respect, her position would be analogous to the clerk of the discipline committee in Spring, i.e., not being involved in the prosecution, which the majority of the Ontario Divisional Court in that case held, did not raise an apprehension of bias. Of course, Sgt. Swann is an employee of the RCMP, but for that matter, so is the Commissioner. Nonetheless, the Act provides that the Commissioner is to decide appeals and the fact that he utilizes a subordinate to assist him does not, without something more, raise a natural justice issue. In Re Sawyer, the draft reasons written by the “prosecutor” were adopted verbatim by the Ontario Racing Commission. Commissioner Inkster incorporated part of Sgt. Swann’s résumé into his decision document. But, as explained below, he wrote his own “Decision” section.
Fourth, it is not realistic for the Commissioner to make appeal decisions in discharge matters without delegating to his subordinates some of the work involved in preparing the material in a manner to enable him to expeditiously perform his function. In this case, Sgt. Swann states, in her affidavit, that she spent approximately 250 hours reviewing and preparing the résumé. It is to be expected that the Commissioner of the RCMP would require such assistance, it not being practical for him to expend that amount of time reviewing the material in discharge, grievance or disciplinary matters appealed to him. Such delegation does not, of itself, imply that the Commissioner did not put his mind, independently, to the decision-making process.
For these reasons, cases such as Re Sawyer, supra, and Re Emerson, supra, and the concerns expressed by the majority of the Divisional Court in Spring, supra, are distinguishable from the circumstances of the case at bar.
Counsel for the respondents relies upon Selvarajan v Race Relations Board, [1976] 1 All ER 12 (C.A.) in which Lord Denning MR, stated at page 19:
Moreover it [the board] need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.
However, in Selvarajan it was held that staff could not tell the decision maker what the result should be. In D. J. Mullan, Administrative Law, 2d ed. (Carswell, 1979) there appears the following at page 3-112:
Generally, the requirement to give a hearing can be met by provision of an opportunity to make written submissions. Alternatively, a statutory decision-maker may legitimately in some cases delegate the task of collection, sorting, sifting and summarizing of evidence to someone else provided the extent of the delegation is not such that the final decision is in effect taken by the delegate rather than the statutory decision-maker. In other words, the statutory decision-maker is obliged to take the decision personally on the basis of an adequate knowledge of all sides of the matter in controversy. [Footnotes omitted.]
In the case at bar, the documents reveal that the Commissioner did indeed put his mind independently to the decision he had to make and did not improperly delegate the decision-making function to Sgt. Swann. Sgt. Swann’s résumé did contain the work history of the applicant, a review of the Discharge and Demotion Board hearing, and a summary of the External Review Committee’s findings and recommendations. Commissioner Inkster included this portion of the résumé in his decision verbatim. However, the decision-making part of the Commissioner’s decision is contained on pages 17 to 19 in a section entitled “Decision”. This portion of his decision, although it clearly makes reference to certain portions of Sgt. Swann’s commentary and recommendations, is in different words than the résumé. Indeed, the commentary and recommendations portion of Sgt. Swann’s résumé does not purport to be a decision on the merits. It raises concerns and questions. For example, as to the External Review Committee ignoring the narrative portion of the applicant’s PEPs, Sgt. Swann states at page 19 of her résumé:
Policy requires a careful evaluation of the accompanying narrative assessments. Should not the same standard apply to discharge?
As to whether the applicant is or is not unsatisfactory, Sgt. Swann’s résumé states at page 19:
The question is whether the Appellant has demonstrated sufficient competence to meet the standard of a reasonably able, skilful and efficient level 01 general policing constable in the law enforcement group. The evidence shows that she does have positive skills and abilities. The Commissioner must decide if she has met this standard and explain on what basis he has made this finding.
…
The Commissioner must decide whether the evidence establishes the ground of unsuitability based on the objective test.
In commenting on the evidence of the psychologist who testified for the applicant, Sgt. Swann states at page 20:
It remains for the Commissioner to weigh the evidence and decide if the Appropriate Officer has met the burden of proof establishing the Appellant’s unsuitability.
Sgt. Swann then deals with options open to the Commissioner at pages 20 and 21:
Based on his determination of the Appellant’s unsuitability, the Commissioner must decide whether or not to accept Recommendation 6 and uphold the appeal. If he so decides, then he must also address Findings 15 and 16 regarding the appropriateness of transfer and Recommendation 7 that he order the Appellant’s transfer to a posting that will allow her to demonstrate her ability to be a productive member of the Force.
…
If the Commissioner accepts Recommendation 6 and upholds the appeal, he may, in the alternative, order a new review of the case by a discharge and demotion board instead of implementing Recommendation 7 ordering transfer. However, should the Commissioner decide that the ground of unsuitability has been established, he may dismiss the appeal and order the Appellant’s discharge or, pursuant to section 45.28, offer the Appellant the opportunity to resign.
Sgt. Swann concludes, at page 21, by recommending that the Commissioner read the relevant material:
It is recommended that at a minimum the Commissioner read the Notice of Shortcomings and appendices (Tab A), the three progress reports (Tabs B to D), the Notice of Intent to Discharge (Tab E), the Board’s decision (Tab F), the appeal by the Appellant (Tab G), the Appropriate Officer’s reply (Tab H), the report of the ERC (Tab I) and the Appellant’s Level II grievance decision (Tab J). For information purposes, the Appellant’s performance evaluations from 1987 to 1990 are found at Tabs K to O and the four statements which were the subject of her preliminary motion are at Tabs P to S.
It seems evident that the résumé was intended to provide the Commissioner with a summary of the proceedings, comments on differences between the Discharge and Demotion Board decision and the External Review Committee findings, and alternatives open to the Commissioner. It does not purport to be a decision or to draw conclusions. That has clearly been left to the Commissioner.
In these circumstances it appears that the Commissioner, while having received assistance from Sgt. Swann, was left to make his decision independently. There was no improper delegation and no breach of the rules of natural justice.
6. Applicant’s counsel submits that in his decision, Commissioner Inkster erred by adopting a subjective rather than an objective test for deciding whether or not the applicant was suitable for her position. He says Commissioner Inkster erred by measuring the applicant’s performance with respect to her posting at Langley Detachment rather than in relation to the requirement for all level 01 general policing constables in the law enforcement group of the RCMP.
Subsection 45.18(1) [as enacted idem] of the RCMP Act sets forth the ground of unsuitability which was the basis of the applicant’s discharge:
45.18 (1) Any officer may be recommended for discharge or demotion and any other member may be discharged or demoted on the ground, in this Part referred to as the “ground of unsuitability”, that the officer or member has repeatedly failed to perform the officer’s or member’s duties under this Act in a manner fitted to the requirements of the officer’s or member’s position, notwithstanding that the officer or member has been given reasonable assistance, guidance and supervision in an attempt to improve the performance of those duties.
The Discharge and Demotion Board found that the applicant was required to meet the standard of a general duty constable stationed at Langley Detachment. The External Review Committee found that subsection 45.18(1) should be given an interpretation that does not take into account requirements allegedly specific to the location of a constable’s posting. The External Review Committee found at page 53 of its decision:
This test, when applied to the present case, requires an assessment of whether the Appellant possesses the same ability to perform the duties listed in the role description as a reasonably able, skilful and efficient level 01 general policing constable in the law enforcement group would have.
…
I therefore find that the Appellant’s position is the one described in the role description: a level 01 general policing constable in the law enforcement group, and not “… a general duty constable stationed at Langley Detachment … ”, as found by the Board. I further find that the test for assessing the Appellant’s performance is whether she possesses the ability of a reasonably able, skilful and efficient level 01 general policing constable in the law enforcement group.
The approach which the External Review Committee found appropriate was referred to as an objective test, as opposed to the subjective test used by the Board.
Commissioner Inkster states in his decision that he adopted the objective test of the External Review Committee. He then provided some further guidance as to its applicability in practical terms. Unofficial requirements specific to a particular location are to be disregarded. Level 01 general policing constables have to meet the requirements of work regardless of where they are posted i.e., to a large or small detachment. At page 17 of his decision, Commissioner Inkster states:
As for the position occupied by Cst. Armstrong, I accept the finding that level 01 general policing constables in the law enforcement group may be posted anywhere to meet the human resources needs of the Force. I also agree with the Committee’s interpretation of subsection 45.18(1) of the Act. However, I would add that while this interpretation precludes consideration of any unofficial requirements specific to a particular location, it also means that level 01 general policing constables must be as able to meet the requirements of work in a large detachment, such as Langley, as they would those of a small detachment, like Telegraph Creek. In other words, members must be able to perform these duties satisfactorily no matter where they are posted. The Force expects no more of Cst. Armstrong than it does of other level 01 general policing constables posted elsewhere. This having been said, I agree with the Committee’s finding regarding Cst. Armstrong’s position and with the test to be used for assessing her performance. I also agree that her entire service at Langley Detachment could be considered in the review of the decision to discharge her.
At page 18, he continues:
The test proposed by the Committee is objective; therefore, unofficial requirements specific to a posting at Langley must not be considered in assessing the member’s performance. However, I consider that the basic skills required in organizing time and workload, documenting files and being responsible for decisions are not that different from one detachment to another. Admittedly, the demands of working in a large, busy detachment and the volume of work are different from those of a smaller detachment and may require more highly developed skills, but at least a certain degree of competence is required no matter what the posting. Although Cst. Armstrong did show some positive skills and abilities, there was a consistent pattern of poor performance, according to her supervisors. The question is whether she has shown sufficient competence to meet the standard of a reasonably able, skilful and efficient level 01 general policing constable in the law enforcement group. I consider that she has not.
The objective test of the ERC suggests to me that all detachments are the same save and except for workload and size. Therefore, the question should be whether Cst. Armstrong can function at “this” detachment, which just happens to be Langley, or at any other. All the evidence suggests that she is having great difficulty in spite of a variety of supervisors (five patrol NCOs and three watch commanders), and additional close supervision. I consider that the evidence shows persistent unsatisfactory performance.
Counsel for the applicant submits that Commissioner Inkster’s reference, at page 18 of his decision, to:
… whether Cst. Armstrong can function at “this” detachment, which just happens to be Langley, or at any other.
indicates that although he says he adopted the objective test, he did not apply it. I do not agree. Langley is one detachment of many. Commissioner Inkster found that all detachments are the same except for workload and size. Nothing in the record suggests that his consideration of the applicant’s performance was with respect to unofficial or unusual requirements specific to Langley, but on the contrary, to her ability to function at any detachment. Of course it was her experience at Langley that formed the factual basis of his assessment since she worked at Langley for the vast majority of the time she was with the RCMP. But this does not render the application of the test for level 01 general policing constables subjective. If it did, the test could never be applied to members of the RCMP who worked at only one location.
Applicant’s counsel also submits that there was no evidence before the Commissioner as to the necessary standard of performance for level 01 general policing constables for adequately dealing with paperwork, which was the primary difficulty of the applicant. While it is not for this Court to substitute its decision on the merits of a discharge for that of the Commissioner, I have had regard to some of the evidence before the Commissioner as contained in the applicant’s PEPs and progress reports. These reports indicate quite clearly that there was evidence before the Commissioner as to the standard of performance required of level 01 general policing constables, including the standard applicable for paperwork. In the PEP of November 20, 1987, G. B. Jackett, Watch Commander states:
In comparing her to other recruits recently transferred to this Detachment, she does not measure up in ability and maturity and aggressiveness required in functioning in a satisfactory manner.
Comments by Corporal P. J. Giffin, dated October 14, 1988, contained in the PEP, state:
I have never seen as much time devoted by senior Csts. and NCO’s to one junior Constable. Every attempt has been made to assist this member from taking calls in the zone to doing her paperwork.
In the November 1, 1989, PEP, Sgt. Treleaven states:
Cst. ARMSTRONG spends a greater amount of time on office related duties than I observe of other members and attribute this to her efforts to present a more organized and more prompt submission of her written work. This could adversely affect her self generated work on the road. She is presently producing self generated work in the low average of some others in this traffic section. This is attributed in part on her willingness to be involved in any situation that is taking place. She will willingly go and assist any member on any type of investigation. This is commendable and expected but for her the unfortunate probability is that she will accept the file and incur further paperwork she can ill afford.
In the December 11, 1990, PEP, Corporal Halliwell states:
She has received direction from both her peers and supervisors but this has failed to alter or improve her performance for any extended period of time.
The foregoing observations suggest that by comparison to her peers, there was objective evidence upon which it could be determined that the applicant was not performing at a level generally expected of level 01 general policing constables, including the paperwork expected of such members.
Counsel for the applicant relied on Aro Canada Ltd. and Int’l Assoc. of Machinists, Lodge 1817, Re (1975), 10 L.A.C. (2d) 81 (Ont.), a decision of a board of arbitration, for the proposition that the RCMP is not entitled to expect perfection from the applicant, but only reasonable ability. At pages 88 and 89, the board stated:
This conclusion accords with the views of a number of arbitrators that, unless the agreement provides otherwise, management is not entitled to insist on perfection on every conceivable task that is assigned to a job classification…. That is both qualitatively as well as quantitatively the company must accept the relative strengths and weaknesses of each employee so long as they are able to meet some general standard of ability. The test that is adopted by the majority of arbitrators to assess the qualifications and capabilities of an employee to perform a particular job is that or [sic] reasonable ability or the ability of a reasonably able, skilful and efficient workman of the same classification.
It is apparent from the notice of shortcomings, that because of the applicant’s disorganization and apparent inability to effectively handle her paperwork, charges had to be dropped and proceedings stayed on several occasions. In August of 1990, a complaint was received from the Manager of the Langley Provincial Court which stated in part:
On many occasions, since my arrival in Langley in January of this year, the name “Armstrong” has crossed my desk. Unfortunately, not for good reasons. This Constable persists in procrastinating with the timely submission of her Ticket Information’s [sic] to the system.
My staff and I have experienced undue stress and unnecessary altercations at our counter when dealing with the Public because the original T.I.’s are not here, to say nothing about the frustration and waste of time for the public, the breakdown of our systems and the eventual quashing of her tickets if we do ever receive them.
I think it is self-evident that the dropping of charges, the staying of proceedings, as well as complaints from the Court are not consistent with the reasonable ability standard established in Re Aro. The comparison of the applicant’s performance to that of her peers, and the numerous documented deficiencies in her work, leave me in no doubt that in assessing the applicant, Commissioner Inkster’s decision was consistent with Re Aro when he found at page 18 of his decision:
… that Cst. Armstrong’s performance has not shown she possesses the ability expected of a reasonably able, skilful and efficient level 01 general policing constable in the law enforcement group, a fact that is well documented.
It is apparent that Commissioner Inkster concluded that a reasonable degree of competence is necessary, no matter what the posting, for an 01 level general policing constable in the law enforcement group, and it was against this standard that he considered the evidence respecting the applicant. In my opinion, he applied the objective test of whether the applicant possessed the ability of a reasonably able, skilful and efficient level 01 general policing constable in the law enforcement group of the RCMP and in doing so, committed no errors of the type asserted by applicant’s counsel.
CONCLUSION
For all of the foregoing reasons this application for judicial review is dismissed.
[1] The applicant’s affidavit refers to March 3, 1991; other documents refer to March 11, 1991. There are also minor differences in the dates of other occurrences and other documents. Nothing turns on these differences.