A-33-86
Graham Bruce Cramm (Applicant)
v.
Commissioner of the Royal Canadian Mounted
Police (Respondent)
INDEXED AS: CRAMM V. CANADA (COMMISSIONER OF THE
ROYAL CANADIAN MOUNTED POLICE)
Court of Appeal, Heald, Urie and Marceau JJ.—
Vancouver, October 9; Ottawa, October 23, 1987.
Judicial review — Applications to review — Principles of
natural justice — Assessment of compensation payable by
RCMP corporal for damage to police vehicle recommended by
Board of Enquiry, confirmed by Commissioner, upheld by
Board of Review — Error in denying right to counsel —
Fairness involving right to counsel where proceedings affecting
reputation, livelihood and career advancement — Fair hearing
requiring right to adduce all evidence before resumed hearing
and production of all material in possession of Boards to
permit applicant to meet case against him.
RCMP — Non-disciplinary hearings — Principles in disci
plinary hearings apply when (1) similar procedure invoked (2)
similar rights affected — Deputy Commissioner's decision
assessing compensation payable by corporal for damage to
police vehicle to be made on judicial or quasi-judicial basis —
Breach of principles of natural justice in denial of right to
counsel, to call witnesses and to see all evidence before Board
— Deputy Commissioner's decision tainted by Board's errors
as no trial de novo.
Federal Court jurisdiction — Appeal Division — Applica
tion to set aside decision assessing compensation payable by
RCMP corporal for damage to police vehicle — Compensa
tion recommended by Board of Enquiry, approved by Commis
sioner, upheld by Board of Review, reduced by Deputy Com
missioner — Decision to be made on judicial or quasi-judicial
basis and reviewable under Federal Court Act, s. 28.
This is an application to review and set aside the Deputy
Commissioner's decision as to the compensation payable by an
RCMP corporal in respect of damage to a police vehicle which
was in an accident with a civilian vehicle. The Deputy Commis
sioner's decision reduced the applicant's liability for damage to
the police vehicle but did not affect his full responsibility for
the third party damages. That decision, made without the
applicant's knowledge, amended the recommendations of a
Board of Enquiry which had been approved by the Commis
sioner and upheld by a Board of Review. The applicant's
request to be represented by counsel before the Board of
Enquiry was repeatedly refused. Portions of the investigative
report provided to the two Boards and the Commissioner were
blacked out when provided to the applicant, or not given to him
at all. The Board of Enquiry found that the applicant was: (a)
not authorized to operate the vehicle on the night in question;
(b) acting outside the scope of his duties; (c) negligent in the
operation of the vehicle, perhaps due to the consumption of
alcohol; and (d) solely responsible for the accident. The issues
are whether the Commissioner's decision was an administrative
one required to be made on a judicial or quasi-judicial basis, as
required by section 28 of the Federal Court Act and whether
there was a breach of the principles of natural justice in the
denial of the rights to counsel, to call witnesses and to full
disclosure of the evidence before the Board.
Held, the application should be allowed.
Applying the four criteria set out in Minister of National
Revenue v. Coopers and Lybrand, the Commissioner's decision
was required to be made on a judicial or quasi-judicial basis.
When the Regulations, standing orders (which have the force
of Regulations) and directives are read together, it is clear that
a hearing is contemplated before a decision is reached. Subsec
tion 125(2) of the Regulations envisages an enquiry of some
formality and section 126 refers to "an inquiry ordered by the
Commissioner". Police authorities must have been of this opin
ion, since the applicant was invited to appear, to be heard and
to make written and oral submissions. Further the Chairman of
the Board of Enquiry reserved to himself the right to call
witnesses and did so. The substantial financial penalty imposed
was evidence that the decision directly or indirectly affected the
rights and obligations of persons. The process is at least partial
ly adversarial. The role of the Board embraces some character
istics of an adversarial procedure in that it can call witnesses,
and the person whose conduct is under review may not only
testify, but may make oral and written submissions. There is an
obligation to apply substantive rules. The Regulations, standing
orders and directives are substantive rules relating to the
internal investigative process of the force. Legal principles
relating to the operation of a motor vehicle on the highway and
the scope of the duties of employment were also applied.
The fact that the Board of Enquiry committed the alleged
breaches of the principles of natural justice, while the
impugned decision was that of the Deputy Commissioner did
not affect the jurisdictional issue. Although this was a non-dis
ciplinary matter, the reasoning in disciplinary cases applied as
the procedures invoked were similar. The Commissioner's deci
sion was tainted by the Board's errors as he did not conduct a
hearing de novo.
The Tribunal erred in denying the applicant the right to be
represented by counsel. Again, the same principles that apply to
disciplinary hearings apply to non-disciplinary hearings which
have some of the judicial characteristics of disciplinary hear
ings. The question to be answered is whether the Board acted
fairly toward the applicant. In the Joplin case, involving a
disciplinary hearing, the basis of the judgments referred to was
fairness to an accused in respect of charges which may affect
his reputation, livelihood and opportunities for career advance
ment. The same considerations applied in proceedings relating
to an alcohol-related accident involving civilians, their non-dis
ciplinary nature notwithstanding. Career opportunities and
reputation might be affected and the possibility that damages
in the hundreds of thousands of dollars could be assessed
affected livelihood. In dealing with the submission that
administrative chaos would result if counsel were permitted to
appear in cases of this kind, it might be suggested that the
presence of counsel would facilitate matters as well as ensuring
that justice was done. The right to counsel is not a discretionary
matter where the circumstances are such that the adequate
presentation of the case calls for legal representation.
The applicant may not have been prejudiced by the Board
chairman's arrogant statement "I will decide who will appear
as witnesses" since the applicant had indicated his intention not
to call witnesses. Nevertheless, to ensure a fair hearing and that
all evidence is adduced, the applicant must have the right to
adduce evidence before the resumed hearing through witnesses
or documentation.
Failure to provide the applicant with all the material before
the Boards and the Commissioner deprived him of a fair
hearing. The applicant cannot meet the case against him
without that material.
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.), s. 7.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Police Act, R.S.B.C. 1979, c. 331.
Police (Discipline) Regulations, O.C. 1402/75, Reg.
330/75.
Royal Canadian Mounted Police Act, R.S.C. 1970,
c. R-9, ss. 5, 21(1),(2).
Royal Canadian Mounted Police Regulations, C.R.C.,
c. 1391, ss. 125, 126.
CASES JUDICIALLY CONSIDERED
APPLIED:
Minister of National Revenue v. Coopers and Lybrand,
[1979] 1 S.C.R. 495; (1978), 92 D.L.R. (3d) 1; Willette
v. Commissioner of the Royal Canadian Mounted Police,
[1985] 1 F.C. 423; (1985), 56 N.R. 161 (C.A.); Lutes v.
Commissioner of the Royal Canadian Mounted Police,
[1985] 2 F.C. 326 (C.A.); Joplin v. Chief Constable of
Vancouver Police Dept., [1983] 2 W.W.R. 52 (B.C.S.C.);
aff d (1985), 10 Admin.L.R. 204 (B.C.C.A.); Howard v.
Stony Mountain Institution, [1984] 2 F.C. 642; (1985),
45 C.R. (3d) 242 (C.A.); Martineau v. Matsqui Institu
tion Disciplinary Board (No. 2), [ 1980] 1 S.C.R. 602.
CONSIDERED:
Husted (In re) and in re the Royal Canadian Mounted
Police Act, [1981] 2 F.C. 791 (T.D.).
REFERRED TO:
Re Bachinsky et al. and Sawyer (1973), 43 D.L.R. (3d)
96 (Alta. S.C.).
COUNSEL:
Tames W. Williams for applicant.
Alan D. Louie for respondent.
SOLICITORS:
Doust & Smith, Vancouver, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This section 28 [Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10] application, as
amended by order of the Court on the hearing of
the application on October 13, 1987, seeks to
review and set aside the decision of the respondent
assessing the applicant the sum of $1,012.50 as
compensation to be paid to the Crown for damage
sustained by a Crown motor vehicle in an automo
bile accident on or about September 10, 1982.
Briefly the facts are these. The applicant, a
corporal in the Royal Canadian Mounted Police
("RCMP") was operating an RCMP vehicle on
the date aforesaid when it was involved in a colli
sion with a second motor vehicle in Nelson, British
Columbia, where he was stationed. A Board of
Enquiry was convened in accordance with the
requirements of the force's Administration
Manual, which conducted an internal investigation
and made recommendations to the respondent
Commissioner. Having found that Cpl. Cramm (a)
had not been authorized to use the police vehicle
on the evening in question, (b) was not on duty or
acting within the scope of his duties when the
accident occurred, (c) was negligent in his opera
tion of the vehicle, perhaps from prior consump
tion of alcohol, in that he drove to the left of the
centre line of the highway as a result of which his
vehicle collided with an oncoming vehicle driven
by a civilian who was accompanied by his wife,
thereby damaging both vehicles and, (d) was, as a
result, solely responsible for the damage incurred
by both, it was recommended that he be assessed
the sum of $4,150 for damages to the police
vehicle and that a demand be made of him to pay
damages to the third party vehicle in the sum of
$3,616.73.
These recommendations were approved by the
Commissioner on July 18, 1984. The applicant
then appealed the assessment, in respect of the
Crown vehicle only, to a Board of Review. No
appeal is provided for in RCMP Regulations in
respect of the demand relating to the third party
damage. The Commissioner's decision was upheld
by the Board. On March 21, 1985 the Command
ing Officer of "E" Division at Nelson notified the
respondent of the recommendation of the Board of
Review, which he supported. The Commissioner's
nominee, Assistant Commissioner N. D. Inkster, in
acknowledging the receipt of the above notification
on July 9, 1985, confirmed the Commissioner's
decision of July 18, 1984 and directed that
biweekly payments of $75 be collected from the
applicant.
It was from that decision that the original sec
tion 28 application was brought. However, prior to
the hearing of the application the applicant was
made aware of a further decision made without
any application by him and entirely without his
knowledge, whereby on January 14, 1987, Deputy
Commissioner Jensen reduced his liability for
damages to the police vehicle by 75% to $1,012.50.
The third party damages continued to be his full
responsibility.
On motion of the applicant, at the hearing of the
section 28 application, leave was granted to amend
the originating notice to ask the Court to review
and set aside the latter decision, copies of which
were ordered to be included in the case.
Counsel for the applicant founded his attack on
the impugned decision solely on perceived breaches
of the principles of natural justice to the applicant
in three respects:
(1) in denying the applicant the right to be
represented by counsel of his choice before the
Board of Enquiry and before the Commissioner;
(2) in denying the applicant the right to call
witnesses; and
(3) in failing to disclose to the applicant all of
the evidence before the tribunal for consider
ation.
All of these attacks are premised on the proposi
tion that the decision by the Commissioner, who is
undoubtedly a federal board or tribunal within the
meaning of section 28, was one which was required
to be made on a judicial or quasi-judicial basis.
The threshold question raised by that premise will
first be examined.
Mr. Justice Dickson [as he then was], in the
Supreme Court of Canada, in Minister of Nation
al Revenue v. Coopers and Lybrand,' at pages 503
S.C.R.; 6 D.L.R. observed that:
Whether an administrative decision or order is one required
by law to be made on a judicial or non-judicial basis will
depend in large measure upon the legislative intention. If
Parliament has made it clear that the person or body is
required to act judicially, in the sense of being required to
afford an opportunity to be heard, the courts must give effect to
that intention. But silence in this respect is not conclusive.
He then formulated several criteria [at pages
504 S.C.R.; 7 D.L.R.] for determining whether a
decision or order is one required by law to be made
on a judicial or quasi-judicial basis. The list, which
follows, he pointed out, was not intended to be
exhaustive.
(1) Is there anything in the language in which the function is
conferred or in the general context in which it is exercised
which suggests that a hearing is contemplated before a decision
is reached?
' [1979] 1 S.C.R. 495; (1978), 92 D.L.R. (3d) 1.
(2) Does the decision or order directly or indirectly affect
the rights and obligations of persons?
(3) Is the adversary process involved?
(4) Is there an obligation to apply substantive rules to many
individual cases rather than, for example, the obligation to
implement social and economic policy in a broad sense?
In the context of this case I think that it can be
fairly said that each of the four questions would
receive an affirmative answer. I shall deal with
them, briefly, seriatim.
1. Under section 5 of the Royal Canadian Mount
ed Police Act, R.S.C. 1970, c. R-9 and amend
ments thereto ("the Act"), the Commissioner, who
is appointed by the Governor in Council, under
direction of the Solicitor General has control and
management of the force. Subsection 21(1)
authorizes the Governor in Council to make regu
lations. Subsection 21(2) grants the Commissioner
the authority to make rules known as standing
orders for the "organization, training, discipline,
efficiency, administration and good government of
the force."
Sections 125 and 126 of the Royal Canadian
Mounted Police Regulations [C.R.C., c. 1391]
enacted pursuant to subsection 21(1), read as
follows:
125. (1) Every member is responsible for all public or other
property in his charge.
(2) Every loss of or damage to property described in subsec
tion (1) shall be inquired into in such manner as the Commis
sioner may direct.
126. When an inquiry ordered by the Commissioner into the
loss of or damage to public or other property shows that the loss
or damage occurred otherwise than through fair wear or tear or
unavoidable accident, the member responsible may be assessed
such costs of replacement or repair as are, in the opinion of the
Commissioner or his delegates, proportionate to the degree of
his negligence and the amount assessed in respect of that
property may be recovered out of the pay of that member in
such manner as the Commissioner or his delegates direct.
Among the relevant standing orders issued by
the Commissioner as embodied in the force's
Administrative Manual are the following para
graphs in Chapter VIII.2, namely:
C.1. A member responsible for loss, damage or theft of
public property in his possession or under his care and
control may be assessed a portion or all of the cost to
repair or replace the property pursuant to Section 126 of
the RCMP Regulations.
C.2. The following persons are authorized to levy assessments
under Section 126 of the RCMP Regulations for loss,
damage or theft of public property, within the financial
limitations prescribed hereunder, and in proportion to
the degree of negligence on the part of the member
involved:
a. Headquarters
Commissioner Full amount
Deputy Commissioner (Admin.) $3,500
Director, Org. & Personnel $2,000
Deputy DOP (Personnel) $2,000
OIC Internal Affairs Branch $1,000
b. Divisions (Exceptions: Damage to police motor vehi
cles, aircraft and boats.)
Commanding Officer $ 500
Admin. and Personnel Officer $ 500
C.3. The persons authorized to levy assessments may, after
determining the degree of negligence (liability) of the
member concerned, mitigate the amount of the assess
ment if extenuating circumstances exist.
In the same chapter, although apparently not
carrying the status of standing orders, the follow
ing directives appear in paragraph J:
J. ASSESSMENT AGAINST MEMBER (Section 126 RCMP
Regs.)
J. 1. General
J. 1. a. The criteria to determine whether an assessment
should be made under Section 126, RCMP Regula
tions are:
1. If the property was a police owned or leased motor
vehicle, aircraft or boat, the member's negligence
must have contributed to the accident and the
member must have been operating the vehicle out
side the scope of his duties or employment. In these
cases Headquarters will finalize the category clas
sification of the accident and the assessment
against the member.
2. In all other cases of loss, damage or theft of public
property or property leased or in the care and
control of the Force, the member must have been
negligent to the extent that his actions were so
unreasonable as to warrant an assessment being
made.
J. 2. a. CO or A&PO
1. See App. VIII-2-2 for assessment conditions and
procedures.
2. When the provisions of J.1.a.1. apply, advise the
member that he may be liable to full assessment of
the Crown loss proportionate to the degree of his
negligence and, in the case of a police motor vehicle
accident, advise him of your recommended category
according to App. VIII-1-1. The scale of assessment
at App. VIII-2-1 is not applicable in such cases.
3. When the provisions of J.1.a.2. apply and the
member was acting within the scope of his duties or
employment, advise the member that he is liable to
an assessment of the Crown loss proportionate to
the degree of his negligence. The scale of assess
ment at App. VIII-2-1 is applicable.
4. When the provisions of J.l.a.2. apply and the
member was not acting within the scope of his
duties or employment, advise the member that he
may be liable to full assessment of the Crown loss
proportionate to the degree of negligence. The scale
of assessment at App. VIII-2-1 is not applicable.
5. Ask the member to state in writing if he wants a
Board of Enquiry. Let him read all relevant
material.
6. If you or the member want a Board of Enquiry, see
Chapter VIII.3.
7. If the matter involves a claim against the Crown
and the provisions of F.1.c. do not apply, forward a
copy of all investigational material to the Depart
ment of Justice. If a demand may be made against
the member. See VIII.2.L.
8. Review Board of Enquiry findings and recommen
dations.
9. In accidents involving a police owned or leased
motor vehicle, boat or aircraft where the member
was negligent and was not acting within the scope
of his duties or employment, forward full particu
lars to Headquarters, ATTN: OIC Internal Affairs
Branch.
1. Explain the degree to which the member is liable
for the damage or loss experienced by the
Crown.
2. Explain any extenuating circumstances which
should be considered.
3. Recommend the amount of assessment which
should be made.
4. Recommend a category classification in police
car accidents.
In Chapter VIII.3 the appointment and respon
sibilities of Boards of Enquiry are spelled out in
some detail.
Turning then to the first of Mr. Justice Dick-
son's [as he then was] questions, do all of the
foregoing Regulations, standing orders (which
have the force of regulations) and directives sug
gest that a hearing is contemplated before a deci
sion is reached although the matter in issue is
clearly administrative in nature? I think that the
answer is clearly "yes", and understandably so.
Subsection 125(2) of the Regulations in direct
ing that every loss or damage to public property
"shall be inquired into in such manner as the
Commissioner may direct" envisages an inquiry of
some formality. This view finds support in section
126 which refers to "an inquiry ordered by the
Commissioner" which will be expected to deter
mine whether "the loss or damage occurred other
wise than through fair wear or tear or unavoidable
accident ..." so that "the member responsible may
be assessed such costs of ... repair ... as are
proportionate to the degree of his negligence ...".
When these provisions are read together with
the Commissioner's standing orders and the direc
tives (whether they have the status of standing
orders or not) quoted above, it is clear, in my view,
that a hearing is contemplated. The force certainly
thought so, since the applicant was invited to
appear, to be heard and, if he desired, to make
written as well as oral submissions. Further, the
Chairman of the Board of Enquiry reserved to
himself the right to call witnesses and, in fact, did
so.
In answer to question 1, therefore, I have no
hesitation in concluding that a hearing was con
templated before a decision was reached.
2. Does the decision or order directly or indirectly
affect the rights and obligations of persons? The
answer is, of course, an unqualified "yes". The
substantial financial penalty imposed on the appli
cant demonstrates the validity of that conclusion.
3. Is the adversary process involved? The answer
to that question cannot be as unequivocal as the
answers to the two previous questions. However, I
find it difficult to conceive how the procedure can
be seen as totally non-adversarial when the force
member has denied his liability for the damages
claimed, asked permission to call witnesses to sup
port his denial, requested and obtained a Board of
Enquiry to investigate the accident, presumably
with a view to substantiating his defence, and
asked that counsel appear on his behalf at the
enquiry, a request which was denied. If he had not
requested a Board of Enquiry, the Commissioner
or his nominee could have determined liability,
apportioned fault and assessed damages unilateral
ly. Having requested a Board of Enquiry, however,
the standing orders and directives disclosed that
while the role of the Board is largely inquisitorial
in nature, it does embrace some of the characteris
tics of an adversarial procedure in that it can call
witnesses and the person whose conduct is under
review may not only testify but may make oral and
written submissions. On the balance, therefore, I
view the process as being at least partially adver
sarial in nature. Thus, I answer the question with a
qualified "yes".
4. Is there an obligation to apply substantive
rules? As I view the Regulations, the standing
orders and the directives, they are substantive
rules relating to the internal investigative process
of the force. Moreover, the conclusion to be
reached from the procedural regime involves the
application of substantive legal principles relating
to the care and control of a motor vehicle on the
highway, the scope of the duties of employment of
the officer concerned and the interpretation of the
force's internal rules in the use of police vehicles,
for example. The answer to this question must,
therefore, also be in the affirmative.
However, that does not conclude this aspect of
the matter. The impugned decision is that of
Deputy Commissioner Jensen. It was not disputed
that he was the lawful delegate of the then Com
missioner. Any of the alleged breaches of the
principles of natural justice in the making of the
decision, occurred at the Board of Enquiry level.
Does that fact affect the answer to the threshold
question? In my opinion, it does not.
The procedure invoked in this non-disciplinary
matter is closely akin to that prescribed for disci-
plinary inquiries. In the Willette 2 and Lutes'
cases, and perhaps in others, those inquiries were
held to be quasi-judicial in nature and thus subject
to section 28 review, notwithstanding that, as here,
the Boards of Enquiry and Boards of Review were
entitled only to make recommendations to the
Commissioner who is charged with the sole respon
sibility of making the required disciplinary or non-
disciplinary decision. In both of those cases the
legal errors occurred at either or both of the board
levels. Stone J., speaking on behalf of the unani
mous Court in the Willette case dealt neatly with
this aspect of the jurisdictional question in the
following passage from his reasons at pages 428
F.C.; 170 N.R.
The Commissioner did not himself conduct the hearing
before the Board. The appeal to him, as it was to the Board of
Review, was on the basis of the record produced by the
Discharge and Demotion Board. He did not conduct a hearing
de novo. He was able to conclude, however, that "these pro
ceedings were conducted properly throughout the investigation
and at all levels of internal administrative action". If, therefore,
the Discharge and Demotion Board erred in law by denying the
applicant a right enshrined in the Charter, in the Canadian Bill
of Rights or at common law with respect to an aspect of the
hearing, obviously the Commissioner's decision would be taint
ed by that error and be reviewable by this Court. [Emphasis
added.]
That reasoning, in my view, is equally applicable
to this case notwithstanding that it is a non-disci
plinary matter. Accordingly, it is my view that this
application relates to a decision of an administra
tive nature required by law to be made on a
judicial or quasi-judicial basis and is, therefore,
amenable to review pursuant to section 28 of the
Federal Court Act.
I turn now to the three grounds of attack.
1. The Tribunal erred in denying the applicant the
right to be represented by counsel.
2 Willette v. Commissioner of the Royal Canadian Mounted
Police, [1985] 1 F.C. 423; (1985), 56 N.R. 161 (C.A.).
3 Lutes v. Commissioner of the Royal Canadian Mounted
Police, [1985] 2 F.C. 326 (C.A.).
As a first reaction, I was doubtful that this
ground had merit. However, having had the oppor
tunity to peruse the jurisprudence to which we
were referred by counsel for the applicant and to
give the matter more mature consideration, I am
of the opinion that, on the facts of this case, an
error was committed in refusing the applicant the
right to be represented by counsel.
The record discloses that on February 25, 1983,
the applicant advised his Commanding Officer
that he wished to have a Board of Enquiry under
A.M. Chapter VIII.2 J.2.a.5. and Chapter VIII.3
E (supra). At the same time he requested permis
sion to be represented before the Board by counsel.
The request was repeatedly refused, as was his
counsel's subsequent requests to appear on his
behalf. A later suggestion that the applicant be
permitted to have a member of the force represent
him at the inquiry was also rejected.
Was the applicant entitled to representation by
counsel in this non-disciplinary proceeding? Coun
sel, in this Court argued that notwithstanding any
characterization of the matter as administrative
and internal, it was serious, the format was formal
and the consequences were significant. That being
so he was entitled to counsel. In support of his
argument he relied on four cases: Husted (In re)
and in re the Royal Canadian Mounted Police
Act; 4 Re Bachinsky et al. and Sawyer; 5 Joplin v.
Chief Constable of Vancouver Police Dept. 6 (both
at Trial and in the Court of Appeal); and Howard
v. Stony Mountain Institution.'
All of the cases arise out of the right to
representation by counsel at police or prisoner
disciplinary hearings.
The latest of those authorities are the Joplin
judgments so that I will refer principally only to
them. That case concerned the rights of police
officers to have counsel represent them at discipli
nary hearings brought pursuant to the British
Columbia Police Act [R.S.B.C. 1979, c. 331] and
4 [1981] 2 F.C. 791 (T.D.).
(1973), 43 D.L.R. (3d) 96 (Alta. S.C.).
6 [1983] 2 W.W.R. 52 (B.C.S.C.); aff'd (1985), 10
Admin.L.R. 204 (B.C.C.A.).
7 [1984] 2 F.C. 642; (1985), 45 C.R. (3d) 242 (C.A.).
regulations [Police (Discipline) Regulations, O.C.
1402/75, Reg. 330/75] enacted thereunder. Sub
section 18(2) of the latter apparently purported to
preclude the right of an accused officer to have
counsel at a disciplinary hearing where the max
imum penalty was not dismissal, resignation or a
reduction in rank. It was alleged that this regula
tion was ultra vires of the Lieutenant Governor in
Council as contrary to the principles of justice.
Chief Justice McEachern in a careful analysis of
the relevant authorities pointed out that distinc
tions between the obligations to act in accordance
with the rules of justice and fairness have been
(other than under section 28) pretty well put to
rest by the decision of the Supreme Court of
Canada in Martineau v. Matsqui Institution Dis
ciplinary Board (No. 2) 8 when Dickson J., as he
then was, said [at page 631]:
... In the final analysis, the simple question to be answered is
this: Did the tribunal on the facts of the particular case act
fairly toward the person claiming to be aggrieved?
He then proceeded to examine the rationale of
several English and Canadian judgments and
finally that of the Trial Division of this Court in
Husted, a decision by Addy J. In that case two
RCMP officers were charged with "major service
offences" under the RCMP Act and brought
before a superintendent who refused their request
to be represented by counsel. McEachern C.J.
quoted with approval from the Husted reasons, at
pages 65-66 as follows:
Addy J. rationalizes the many views which have been
expressed on this important question at pp. 159-60 as follows:
"There is no absolute common law right to counsel in all
cases where an individual is subject to some penalty. The
Courts have consistently refused to intervene on the grounds
that representation by counsel was denied in certain service
disciplinary matters where the hearing is, by nature of the
subject-matter or the alleged offence, of an internal administra
tive nature and concerns a disciplinary matter within a special
body such as a branch of the armed services or a police
8 [1980] 1 S.C.R. 602.
organization. The powers of the trying officer in such cases are
generally quite limited and subject to administrative review by
higher authority. In those cases the alleged disciplinary offence
is usually investigated in a very informal manner without a
Court stenographer recording the proceedings and without
regard to the strict rules of evidence and, as one Judge has put
it 'on a man to man basis' between the superior officer and the
alleged offender. In most of these cases it has generally been
long established by custom that such disciplinary matters would
be settled within the force or organization, informally and
without outside intervention. In other cases, legislation specifi
cally prohibits the employment of outside agents or counsel.
The exigencies of the service require this degree of informality
without which the day-to-day administration of the force and
the maintenance of discipline within it would become so cum
bersome and time-consuming as to be ineffective. On the other
hand, the common law recognizes that wherever a person's
liberty or livelihood is at stake in a legal trial, he should not
unreasonably be deprived of the services of the duly qualified
legal counsel of his choice unless the employment of any
particular counsel would unduly delay or impede the adminis
tration of justice. It is a natural corollary of the principle that
an accused is entitled to a full and fair defence."
The Chief Justice then made his findings on the
case before him in the following way [at pages
67-68]:
I do not think it possible to treat any disciplinary proceedings
under this disciplinary code (except those conducted formally
on a "man to man basis" where no entry is made in an officer's
record) as other than serious. In today's society, where career
decisions must be made at an early age, and many of our
citizens do not have a second chance, and where all policemen
are assumed to be career officers, and where good conduct is
obviously an important factor in promotion and therefore in
salary, and where pension and other benefits depend in part
upon salary in the closing years of a career, it is clearly
untenable to argue that a recorded conviction for a disciplinary
default—even for using one naughty participle—is not serious.
If a senior officer of this police force considers the complaint
serious enough to engage this formal hearing procedure with its
full panoply of legalities, then it is per se serious, and this is so
regardless of the nature of the alleged offence or the maximum
penalty which is recommended. I think right-thinking citizens
would agree.
It follows, in my view, that it is not necessary to indulge in an
exercise of classification in order to determine what is serious
and what is not. A form of classification was conveniently
available in Addy J.'s case and he confined himself to the cases
he had to decide, which happened to be styled "major service
offences". Such a classification is also furnished in this case by
s. 18(1) and (2), but I regard such distinctions as artificial, and
I prefer to look broadly at the nature of the proceedings, and
the consequences or potential consequences of those proceed
ings rather than just at the form of the regulations in deciding
what is serious. [Emphasis added.]
I respectfully agree with Addy J. that a layman, even a
policeman, cannot be expected properly to master the laws of
evidence and criminal procedure in his own defence. It is
powerful wisdom that a lawyer who acts for himself has a fool
for a lawyer and a fool for a client.
When the Lieutenant Governor in Council established a
formal legal procedure he could not, with fairness, leave out the
most important safeguard in the legal process, that is, the right
to counsel. I am satisfied that justice and fairness cannot
tolerate a procedure where a layman is expected to deal with
legal concepts which are strange to him, and at the same time
advise himself objectively.
In the Court of Appeal, the judgment was
affirmed and the reasons of the Chief Justice
adopted. In particular, his direction that the police
officer must be allowed to have counsel if he so
wished rather than declaring the right to counsel
was approved.
The Howard case was also a disciplinary case
although in respect of prison inmates. While the
case turned on section 7 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.)], which was not argued in
this case, some of the reasoning was relevant. At
pages 662-663 F.C.; 262-263 of the report [C.R.],
Thurlow C.J. had this to say:
I am of the opinion that the enactment of section 7 has not
created any absolute right to counsel in all such proceedings. It
is undoubtedly of the greatest importance to a person whose
life, liberty or security of the person are at stake to have the
opportunity to present his case as fully and adequately as
possible. The advantages of having the assistance of counsel for
that purpose are not in doubt. But what is required is an
opportunity to present the case adequately and I do not think it
can be affirmed that in no case can such an opportunity be
afforded without also as part of it affording the right to
representation by counsel at the hearing.
Once that position is reached it appears to me that whether
or not the person has a right to representation by counsel will
depend on the circumstances of the particular case, its nature,
its gravity, its complexity, the capacity of the inmate himself to
understand the case and present his defence. The list is not
exhaustive. And from this, it seems to me, it follows that
whether or not an inmate's request for representation by coun
sel can lawfully be refused is not properly referred to as a
matter of discretion but is a matter of right where the circum
stances are such that the opportunity to present the case
adequately calls for representation by counsel. It may be that
where the circumstances do not point to that conclusion a
residual authority to permit counsel nevertheless is exercisable
by the appropriate officials but that area is not I think within
the purview of section 7. [Emphasis added.]
Accepting all of the foregoing relating to disci
plinary hearings, should there be a differentiation
from the principles applicable in disciplinary mat
ters from those applicable in non-disciplinary pro
ceedings which have some, though perhaps not all,
of the judicial characteristics of disciplinary hear
ings? I think not. The basis of the judgments
referred to in Joplin was fairness to an accused in
respect of charges which may affect his reputation,
his livelihood and his opportunities for career
advancement. All three are present in a case of
this kind of a non-disciplinary nature. While there
is no direct evidence as to this, I think it can be
safely inferred that Cpl. Cramm's personnel record
will now disclose that he had been involved in an
alcohol-related incident involving civilians. That
may affect his career opportunities and, certainly,
his reputation.
With respect to his ability to earn a livelihood
he has been found liable to pay in excess of $7,700,
a sum which would have been substantially larger
had, for example, a valuable truck cargo been
destroyed in the mishap or had personal injuries
been sustained by the occupants of the second
vehicle. In such cases damages in the hundreds of
thousands of dollars might have been at stake.
Such serious potential results are visited upon the
applicant by the recommendation of a Board
which has neither the benefit of advice as to the
law of negligence from its own counsel or as a
result of the cross-examination and submissions by
counsel for the person concerned, with knowledge
of the law. Such a result is simply not fair.
As to the spectre of administrative chaos result
ing if counsel is permitted to appear in matters of
this nature, first, I would expect that the number
of occurrences of this kind is relatively small and,
moreover, the presence of competent counsel
might well facilitate matters as well as, most
importantly, ensuring that justice is done by en
abling a person in the position of the applicant to
adequately present his case. Secondly, with
respect, I adopt what was said by Chief Justice
Thurlow in the Howard case [at pages 663 F.C.;
262-263 C.R.] in the portion of his judgment
which I quoted and which, for the sake of conve
nience, I repeat, in part, hereunder:
Once that position is reached it appears to me that whether
or not the person has a right to representation by counsel will
depend on the circumstances of the particular case, its nature,
its gravity, its complexity, the capacity of the inmate himself to
understand the case and present his defence. The list is not
exhaustive. And from this, it seems to me, it follows that
whether or not an inmate's request for representation by coun
sel can lawfully be refused is not properly referred to as a
matter of discretion but is a matter of right where the circum
stances are such that the opportunity to present the case
adequately calls for representation by counsel. [Emphasis
added.]
2. The Tribunal erred in denying the applicant the
right to call witnesses.
The record discloses that, inter alia, the appli
cant advised the Chairman of the Board of Enqui
ry that he did not intend to call witnesses at the
Board hearing to which the rather arrogant
response of the Chairman was "As president of
this Board of Enquiry I will decide who will appear
as witnesses" (see Appeal Book Appendix, at
pages 14 and 15).
If this matter were not, in any event, to be
remitted for proper disposition after affording the
applicant, if he chooses, to be represented by coun
sel, I would consider that applicant's statement
that he did not wish to call witnesses, obviated the
possibility that the Chairman's ruling was prejudi
cial to him on the basis of unfairness. However, in
the circumstances, it is my view that to be accord
ed a fair hearing and to ensure that not just the
evidence of which the Board is aware, or may
become aware, is adduced, the applicant must
have the right, if he wishes, to adduce evidence
before the resumed hearing whether such evidence
is through witnesses or is documentary in nature.
The weight to be given to such evidence is, of
course, solely the responsibility of the Board and
ultimately the Commissioner. Only following this
practice can a well-informed decision be made as
to all of the circumstances surrounding the inci
dent in question.
3. Failure to disclose all of the evidence before the
Tribunal.
The applicant alleges, and the record bears him
out, that certain portions of the material in the
investigative report which had been submitted to
the applicant had been blacked out or, perhaps,
had not been supplied to him at all. The two
Boards and the Commissioner all were in posses
sion of all, including the unexpurgated versions. It
seems to me that the only way for the applicant to
be able to meet the case against him is to be in
possession of all the material to which the tribunal
is privy. Failure to provide him with all such
material deprives him of a fair hearing.
SUMMARY
In summary the three attacks involve the con
cept of fairness. It is a "flexible concept and its
content varies depending on the nature of the
inquiry and the consequences for the individuals
involved". 9 On this view, it is apparent, for the
reasons which I have already given, that the appli
cant should succeed on each of the grounds upon
which he attacked the Commissioner's decision in
issue.
CONCLUSION
Accordingly, I would grant the section 28
application and set aside the decision under review,
namely, that of the respondent Commissioner pro
nounced on July 18, 1984 as modified by the
decision of Deputy Commissioner Jensen on Janu-
ary 14, 1987. The matter should be referred back
to the Commissioner on the basis that a new Board
of Enquiry, differently constituted, should be con
vened to make the appropriate inquiry in accord
ance with the principles of natural justice and in a
manner not inconsistent with these reasons.
HEALS J.: I agree.
MARCEAU J.: I agree.
9 Irvine v. Canada (Restrictive Trade Practices Commission),
[1987] 1 S.C.R. 181, per Estey J., at p. 231.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.