Judgments

[1994] 3 F.C. 562

A-225-93

IN THE MATTER OF Parts VI and VII of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, as amended by S.C. 1986, c. 11;

AND IN THE MATTER OF a Complaint, dated August 8, 1990, made to the Royal Canadian Mounted Police Public Complaints Commission by John Ross Colvin in respect of alleged conduct of Norman Inkster, the Commissioner of the Royal Canadian Mounted Police;

AND IN THE MATTER OF a Complaint, dated August 13, 1990, made to the Royal Canadian Mounted Police Public Complaints Commission by John Ross Colvin in respect of alleged conduct of Henry Jensen, a former Deputy Commissioner of the Royal Canadian Mounted Police;

AND IN THE MATTER OF an application by way of special case stated for opinion of the Federal Court, Trial Division pursuant to paragraph 17(3)(b) of the Federal Court Act, R.S.C., 1985, c. F-7.

Indexed as: Canada (Commissioner of the Royal Canadian Mounted Police) (Re) (C.A.)

Court of Appeal, Hugessen, Décary and Linden JJ.A.—Ottawa, May 18 and June 15, 1994.

RCMP — Complaint concerning conduct of RCMP Commissioner within jurisdiction of RCMP Public Complaints Commission — Not within Commission’s jurisdiction to consider complaint concerning conduct of Deputy Commissioner who retired before initiation of complaint — Within jurisdiction to consider complaint concerning conduct of member who retires or ceases to be appointed under Act after initiation of complaint but before resolution.

In August 1990, a member of the public filed complaints with the RCMP Public Complaints Commission pursuant to Part VII of the Royal Canadian Mounted Police Act concerning the alleged conduct of Norman Inkster, the Commissioner of the RCMP, and of Henry Jensen, former Deputy Commissioner (who had retired in December 1989), with respect to the investigation and laying of charges in connection with the premature disclosure of highlights of the Federal Budget in April, 1989. The Commissioner and Deputy Commissioner were alleged to have permitted subordinate officers to lay charges against three persons even though they knew, or ought to have known, that no crime had been committed. The charges were later stayed by the Trial Judge on the ground, inter alia, that continuing the prosecution would be an abuse of process.

The Commissioner argued that Part VII of the Act did not grant the Commission jurisdiction to deal with complaints concerning the Commissioner’s conduct. The former Deputy Commissioner argued that Part VII did not grant the Commission jurisdiction to deal with the complaint against him since, at the time of the initiation of the complaints, he had ceased to be a “member” of the RCMP.

In a special case stated for the opinion of the Federal Court, Trial Division pursuant to paragraph 17(3)(b) of the Federal Court Act, the Court was asked (1) whether the Commission, in connection with Parts VI and VII of the RCMP Act, had jurisdiction to entertain the Inkster complaint, having regard to the fact that he was Commissioner of the RCMP; (2) whether the Commission, in connection with Parts VI and VII of the RCMP Act and having regard to the Jensen complaint, had jurisdiction to entertain complaints concerning alleged conduct of a member of the RCMP or other person appointed or employed under the authority of the Act who (i) had retired or ceased to be appointed or employed under the authority of the Act prior to the initiation of the complaint; or (ii) had retired or ceased to be appointed or employed under the authority of the Act after the initiation of the complaint but prior to its resolution.

The Trial Judge decided that questions 1 and 2(ii) should be answered in the affirmative and question 2(i), in the negative.

This was an appeal by the Attorney General with respect to the answers given to questions 1 and 2(ii) and a cross-appeal by the Commission with respect to the answer given to question 2(i).

Held, the appeal and cross-appeal should be dismissed.

Question 1—Commission’s jurisdiction re: a complaint concerning the conduct of the Commissioner

The first objection to the Commission’s jurisdiction over the conduct of the Commissioner was that Parliament could not have intended to give the Commission jurisdiction to investigate the very person who, as head of the RCMP, had the ultimate responsibility for the management of the Force and who decided whether or not to act upon findings and recommendations of the External Review Committee and of the Commission.

This argument ignored the basic differences that exist between grievances, disciplinary and discharge, and demotion procedures established by Parts III, IV and V of the Act, and the public complaints process established by Part VII. Parts III to V deal with grievances, which are labour relations-oriented, and discipline, which is Code of Conduct-oriented while Part VII deals with general conduct which is not necessarily to be examined in the context of labour relations or discipline. Parts III to V apply to members only. Part VII applies to any person appointed or employed under the authority of the Act, including special constables and temporary or permanent civilian employees. Parts III to V lead to concrete, final and binding decisions by the Commissioner while Part VII leads to findings and recommendations by the Commission which have no binding effects. Parts II to V (External Review Committee in Part II and the Commissioner in Parts III to V) are member- oriented while Part VII is member-oriented and also policy- oriented. There is therefore no incompatibility between the Commissioner’s power to act and the Commission’s power to recommend.

The second argument was that, given the statutory role of the Commissioner in the public complaints process, Parliament could not have intended to give the Commission jurisdiction over the Commissioner. Otherwise, the Commissioner would be the final arbiter of a complaint against himself.

There were some drafting anomalies in Part VII of the Act that could easily have been avoided. Courts must nevertheless do their best to give some meaning to the imprecise wording used by Parliament. In the final analysis, the wording of the Act allowed for a complaint against the Commissioner himself, since he is a “member” against whom a complaint may be made. Given the fact that the Commissioner could be the target of an investigation, given the fact that this investigation could be made without the participation of the RCMP and of the Commissioner, and given the fact that the Commissioner is authorized to delegate his powers under Part VII of the Act, except for the final review, it could safely be assumed by Parliament that when a complaint filed against the Commissioner is to be processed by the RCMP rather than the Commission, the Commissioner would ask his Deputy Commissioner to take charge of the process up to the final review stage. This power to delegate was another indication that the Commissioner’s conduct could be investigated. Furthermore, although the Commissioner has the final word with respect to all complaints, since the Commission sends its final report to the Minister and makes an annual report to Parliament, the Commission, whenever it feels that the public interest requires it, has all the tools it needs to investigate a complaint directed at the conduct of the Commissioner himself. While the process does not expressly provide for complaints against the Commissioner, it can, when necessary, be easily adapted to handle them, given the respective roles of the Commissioner and of the Commission Chairman as well as the Commissioner’s power of delegation. There was no need to fear an avalanche of complaints against the Commissioner since the process allows for a rapid dismissal of any frivolous complaint.

Therefore, the Commissioner was a “member” whose conduct could be investigated by the Commission and the total independence of the Commission vis-à-vis the Force and vis-à-vis the Commissioner ensured that (a) the decision of the Commission to file a complaint against and/or to investigate the conduct of the Commissioner; (b) the investigation of such complaint by the Commission; and (c) the findings and recommendations of the Commission with respect to such complaint, can be made, conducted and arrived at without any interference from the Force or from the Commissioner and without interfering with the Commissioner’s ultimate authority over the control and management of the Force.

Question 2(i) Retirement before initiation of a complaint

The wording of the Act and the Marin and McDonald reports made it clear that for a complaint under Part VII, it was essential that the person whose conduct was the subject-matter of the complaint have the status of member of the Force at the time the complaint was made. Had Parliament intended otherwise, it would have said so. The fact that there was no limitation period with respect to public complaints was an indication that it was not contemplated that complaints be filed against persons who were no longer members of the Force. This interpretation would also remedy another mischief: the pillorying of members of the Force. Finally, in the Act, Parliament has restricted the Commission’s jurisdiction to specific complaints on specific behaviour. Only a permanent body of inquiry into policy matters within the RCMP, which the Commission was not, could look at complaints filed after the discharge of the member whose conduct was complained of. There was no merit to the argument that members on the verge of retirement might escape public scrutiny. There was no reason to assume that retiring members would seek to benefit from loopholes in the legislation and risk potentially more prejudicial civil and criminal proceedings.

Question 2(ii) Retirement after initiation of the complaint but before its resolution

Contrary to the situation that existed with respect to question 2(i), it did not matter whether or not the Commissioner was in a position of authority over the person whose conduct was being investigated. Furthermore, since a member could not unilaterally resign or retire from the Force, the Commissioner could either refuse to let the member go until the conclusion of the investigation or issue the discharge on condition that the member participate in the investigation. Rule 10 of the Commissioner’s Standing Orders (Public Complaints) provided that the Commissioner’s investigation into a complaint shall continue whether or not the member under investigation has resigned. What the Commissioner can do to ensure the continuation of his own investigation, he can do to ensure the continuation of the Commission’s investigation. Finally, the objects and purposes of Part VII, as opposed to those of the disciplinary proceedings which are decision-oriented, are recommendations-oriented. The recommendations aim at preventing the recurrence of conduct found to be questionable through suggestions to the individual complained against and the Force in general. When the Commission is conducting an investigation, it is expressing a positive concern for the individual as well as collective and prospective concern for the Force and the Canadian public. Cases on discipline committees’ jurisdiction over former members with respect to complaints filed while they were members are not necessarily relevant. Public complaints proceedings are to some extent in the nature of proceedings in rem.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act respecting the Barreau du Québec, R.S.Q., c. B-1.

Commissioner’s Standing Orders (Public Complaints), SOR/88-522, R. 10.

Federal Court Act, R.S.C., 1985, c. F-7, s. 17(3)(b).

Public Service Employment Act, R.S.C., 1985, c. P-33.

Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 2 (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 1), 5 (as am. idem, s. 2), 7(1)(c) (as am. idem, s. 4), 10(1),(2), 23(3)(a) (as am. idem, s. 14), 24.1 (as enacted idem, s. 15), Part II (as am. idem, s. 16), Part III (as enacted idem; S.C. 1990, c. 8, s. 65), Part IV (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16; S.C. 1990, c. 8, ss. 66, 67), Part V (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16; S.C. 1990, c. 8, s. 68), Part VI (as enacted R.S.C., 1985 (2nd Supp.), c. 8, s. 16), Part VII (as enacted idem; 1990, c. 8, art. 68), 49(2) (as am. idem, s. 20).

Royal Canadian Mounted Police Regulations, 1988, SOR/88-361, ss. 76, 92(1)(g).

CASES JUDICIALLY CONSIDERED

APPLIED:

Royal Canadian Mounted Police Act (Can.) (Re), [1991] 1 F.C. 529; (1990), 34 F.T.R. 1; 123 N.R. 120 (C.A.); Maurice v. Priel, [1989] 1 S.C.R. 1023; (1989), 58 D.L.R. (4th) 736; [1989] 3 W.W.R. 673; 77 Sask. R. 22; 36 Admin. L.R. 169; 96 N.R. 175; Chalmers v. Toronto Stock Exchange (1989), 70 O.R. (2d) 532; 40 Admin. L.R. 311 (C.A.); leave to appeal to S.C.C. refused (1990), 105 N.R. 398; 37 O.A.C. 399; Maurice v. Priel (1987), 46 D.L.R. (4th) 416; [1988] 1 W.W.R. 491; 60 Sask. R. 241 (C.A.).

DISTINGUISHED:

Sansfaçon c. Tribunal des professions, C.S. Montréal, 500-05-017992-924, 1993-04-15, J.E. 93-986; R. v. Saskatchewan College of Physicians and Surgeons et al., Ex p. Samuels (1966), 58 D.L.R. (2d) 622; 57 W.W.R. 385 (Sask. Q.B.); Bohnet v. Law Society of Alberta (1992), 90 D.L.R. (4th) 373 (Alta. Q.B.).

AUTHORS CITED

Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. Second Report—Vol. 1: Freedom and Security under the Law. Ottawa: Supply and Services Canada, 1981 (Chair.: D.C. McDonald).

House of Commons Debates, 1st Sess., 3rd Parl., Vol vii.

RCMP Public Complaints Commission. Annual Report, 1989-90.

Report of the Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure within the Royal Canadian Mounted Police. Ottawa: Queen’s Printer, 1976 (Chair.: R.J. Marin).

APPEAL AND CROSS-APPEAL from answers given by the Trial Judge ([1993] 2 F.C. 351) to the questions submitted by special stated case, determining that 1- the RCMP Public Complaints Commission had jurisdiction to entertain a complaint about the conduct of the Commissioner of the RCMP; and 2(i)- that the Commission did not have jurisdiction to entertain a complaint about the conduct of a person who had retired or ceased to be appointed or employed under the RCMP Act before the initiation of the complaint; but 2(ii)—did have jurisdiction to entertain a complaint about the conduct of a person who had retired or ceased to be appointed or employed under the RCMP Act after the initiation of the complaint but before its resolution. The appeal and cross-appeal should be dismissed: questions 1 and 2(ii) should be answered in the affirmative; question 2(i) should be answered in the negative.

COUNSEL:

Brian A. Crane, Q.C. and Robert F. Batt for Attorney General of Canada (appellant).

Eleanor A. Cronk and Richard B. Swan for RCMP Public Complaints Commission (cross-appellant).

Leslie A. Vandor, Q.C. for Henry Jensen (respondent).

SOLICITORS:

Gowling, Strathy & Henderson, Ottawa, for Attorney General of Canada (appellant).

Fasken, Campbell, Godfrey, Toronto, for RCMP Public Complaints Commission (cross- appellant).

Vandor & Company, Ottawa, for Henry Jensen (respondent).

The following are the reasons for judgment rendered in English by

Décary J.A.: In August 1990, John Ross Colvin, a citizen of Ottawa, filed two complaints with the Royal Canadian Mounted Police Public Complaints Commission (the “Commission”) under Part VII [sections 45.35-45.47] of the Royal Canadian Mounted Police Act[1] (the “Act”). One of the complaints was in respect of the alleged conduct of Norman Inkster, the Commissioner of the Royal Canadian Mounted Police (the “RCMP” or the “Force”). The other was in respect of the alleged conduct of Henry Jenson, a former Deputy Commissioner of the RCMP who had retired in December, 1989.

Both of these complaints arose from the circumstances surrounding the premature disclosure of the highlights of the Federal Budget in April, 1989. Following this disclosure, the RCMP began an intensive criminal investigation, leading to charges against Douglas Small, John Appleby and Normand Bélisle. These charges were eventually stayed on the ground, among others, that continuing the prosecution would be an abuse of process. In his complaints Mr. Colvin alleged that Commissioner Inkster and Deputy Commissioner Jensen permitted subordinate officers of the RCMP to lay charges against Messrs. Small, Appleby and Bélisle even though they knew, or ought to have known, that no crime had been committed.

Based on the nature of the complaints and the highly public character of the events giving rise to the complaints, the Commission Chairman formed the opinion that the public might consider that an internal investigation by the RCMP of these two senior officers would not be impartial. As a result, the Commission Chairman informed Commissioner Inkster, pursuant to subsection 45.43(1) of the Act, that he would investigate the complaints.

The Commission Chairman was subsequently informed that the Department of Justice was of the opinion that Part VII of the Act did not confer jurisdiction on the Commission to deal (a) with complaints concerning the conduct of the Commissioner and (b) with complaints dealing with Mr. Jensen since, at the time the complaint was initiated, Mr. Jensen had ceased to be a “member” of the RCMP as defined in the Act.

On March 25, 1991, the Commission Chairman issued an interim report concerning the status of the investigation into the complaints made by Mr. Colvin. He concluded that he was not in a position to make findings and recommendations on either of the complaints and that the investigation could not proceed because of the position taken by the RCMP.

The Attorney General of Canada and the Commission agreed by stated case dated September 4, 1991 to submit, pursuant to paragraph 17(3)(b) of the Federal Court Act [R.S.C., 1985, c. F-7], the following questions for the opinion of the Trial Division of the Federal Court of Canada:[2]

1. Does the Commission, in connection with Parts VI and VII of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, as amended by S.C. 1986, c. 11 (the “Act”), have jurisdiction to entertain the Inkster Complaint, as set out in the Agreed Statement of Facts, having regard to the fact that this Complaint concerns alleged conduct of the Commissioner of the Royal Canadian Mounted Police (the “RCMP”)?

2. Does the Commission, in connection with Parts VI and VII of the Act and having regard to the Jensen Complaint, as set out in the Agreed Statement of Facts, have jurisdiction to entertain complaints concerning alleged conduct of a member of the RCMP or other person appointed or employed under the authority of the Act who:

(i)   retired from, or otherwise ceased to be a member of, the RCMP, or ceased to be appointed or employed under the authority of the Act, prior to initiation of the complaint; or

(ii)  retired from, or otherwise ceased to be a member of, the RCMP, or ceased to be appointed or employed under the authority of the Act, after initiation of the complaint but prior to its resolution?

By judgment dated February 23, 1993 [[1993] 2 F.C. 351 (T.D.)], MacKay J. answered question 1 and 2(ii) in the affirmative and question 2(i) in the negative. The effect of this judgment was to permit the Commission to proceed with the complaint against Commissioner Inkster but not with the complaint against former Deputy Commissioner Jensen.

The Attorney General of Canada appealed with respect to the answers given to questions 1 and 2(ii), and the Commission cross-appealed with respect to the answer given to question 2(i).

At the hearing, we expressed our concern with respect to question 2(ii), as it appeared that it was not related to the particular facts of the case. This issue had not been raised before MacKay J. We have decided, because of its connection with question 2(i) and in order to save the parties and the Court an unavoidable return visit,[3] to deal with question 2(ii). In so doing, we do not wish to be understood as sanctioning or encouraging the practice of asking, pursuant to paragraph 17(3)(b) of the Federal Court Act, the opinion of the Court on academic questions.

I have found it useful to reproduce, at the outset, the text of the principal provisions I will be referring to, and in appendix the text of Part VII of the Act as well as the text of other relevant provisions [ss. 2 (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 1), 5 (as am. idem, s. 2), 24.1 (as enacted idem, s. 15)].

INTERPRETATION

2. (1) ….

“member” means any person

(a) who has been appointed as an officer or other member of the Force under section 5 or paragraph 6(3)(a) or 7(1)(a), and

(b) who has not been dismissed or discharged from the Force as provided in this Act, the regulations or the Commissioner’s standing orders.

…

PART I

CONSTITUTION AND ORGANIZATION

…

Commissioner

5. (1) The Governor in Council may appoint an officer, to be known as the Commissioner of the Royal Canadian Mounted Police, who, under the direction of the Minister, has the control and management of the Force and all matters connected therewith.

(2) The Commissioner may delegate to any member any of the Commissioner’s powers, duties or functions under this Act, except the power to delegate under this subsection, the power to make rules under this Act and the powers, duties or functions under section 32 (in relation to any type of grievance prescribed pursuant to subsection 33(4)), subsections 42(4) and 43(1), section 45.16, subsection 45.19(5), section 45.26 and subsections 45.46(1) and (2).

…

Boards of Inquiry

24.1 (1) The Minister or the Commissioner may appoint such persons as the Minister or Commissioner considers appropriate as a board of inquiry to investigate and report on any matter connected with the organization, training, conduct, performance of duties, discipline, efficiency, administration or government of the Force or affecting any member or other person appointed or employed under the authority of this Act.

…

(9) Unless the Minister or the Commissioner directs otherwise, an investigation and any hearing by a board of inquiry appointed by the Minister or Commissioner, as the case may be, shall be conducted in private.

…

PART VII

PUBLIC COMPLAINTS

Receipt and Investigation of Complaints

45.35 (1) Any member of the public having a complaint concerning the conduct, in the performance of any duty or function under this Act, of any member or other person appointed or employed under the authority of this Act may, whether or not that member of the public is affected by the subject-matter of the complaint, make the complaint to

(a) the Commission;

(b) any member or other person appointed or employed under the authority of this Act; or

…

45.37 (1) Where the Commission Chairman is satisfied that there are reasonable grounds to investigate the conduct, in the performance of any duty or function under this Act, of any member or other person appointed or employed under the authority of this Act, the Commission Chairman may initiate a complaint in relation thereto and where the Commission Chairman does so, unless the context otherwise requires, a reference hereafter in this Part to a complainant includes a reference to the Commission Chairman.

…

Reference to Commission

…

45.43 (1) Where the Commission Chairman considers it advisable in the public interest, the Commission Chairman may investigate, or institute a hearing to inquire into, a complaint concerning the conduct, in the performance of any duty or function under this Act, of any member or other person appointed or employed under the authority of this Act, whether or not the complaint has been investigated, reported on or otherwise dealt with by the Force under this Part.

…

45.46 (1) On receipt of a report under subsection 45.42(3), 45.43(3) or 45.45(14), the Commissioner shall review the complaint in light of the findings and recommendations set out in the report.

(2) After reviewing a complaint in accordance with subsection (1), the Commissioner shall notify the Minister and the Commission Chairman in writing of any further action that has been or will be taken with respect to the complaint, and where the Commissioner decides not to act on any findings or recommendations set out in the report, the Commissioner shall include in the notice the reasons for not so acting.

(3) After considering a notice under subsection (2), the Commission Chairman shall prepare and send to the Minister, the Commissioner and the parties a final report in writing setting out such findings and recommendations with respect to the complaint as the Commission Chairman sees fit.

Question 1: Jurisdiction of the Commission in regard to a complaint concerning the conduct of the Commissioner.

As introduction and background, it is worth repeating what MacGuigan J.A. has said in Royal Canadian Mounted Police Act (Can.) (Re) (hereinafter the “RCMP Reference”):[4]

It is common ground that the genesis of the amending Act is to be found in The Report of the Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure within the Royal Canadian Mounted Police, Information Canada, Ottawa, 1976 (The Marin Commission Report).

That Report recommended the creation of a public complaint system operationally and functionally distinct from the disciplinary system.

The mischief aimed at by the amending Act is undoubtedly accurately expressed by the following statement of the Marin Commission (at page 97):

The need for an independent authority to review the actions of the Force in handling public complaints is not one based on any discovery of a history of abuse or neglect. On the contrary, we have not found many cases where the Force was not both thorough in its investigation and fair in its disposition of complaints. The need in question is based on perceptions held by many who have difficulty in understanding how the Force can be both the supervisor and final arbiter for public complaints. Complainants, members involved in complaints and Canadians in general are entitled to an unqualified confidence in the Royal Canadian Mounted Police. In our view, the introduction of an independent review authority will ensure that such confidence is attainable.

As drawn to the Court’s attention by the respondent, this view was echoed by the then Solicitor General in moving second reading of the amending legislation, (Debates of the House of Commons, September 11, 1985, at page 6518):

I see the establishment of the public complaints commission as an amendment of paramount importance. It is a contemporary response to a need for objective, open and fair handling of complaints against RCMP members in a manner which will command public confidence.

One purpose of the legislation, then, deduced from the mischief at which it was directed, is the protection of the public from having its complaints investigated privately. But it is evident from other clarifying words of the Solicitor General that there is another mischief to be guarded against as well, viz., the pillorying of members of the Force (Debates, September 11, 1985, at page 6519):

The recommendations of the Marin Commission are substantially implemented in this Act and considerable time and effort has been invested in developing revisions that will support and further the work of the RCMP and adequately preserve the delicate balance between the protection of the rights of the public and the individual members of the RCMP.

This comment would indicate that both mischiefs are being equally guarded against.

In order to dispose of question 1, I have found it helpful to develop some of the scenarios that are contemplated by Part VII of the Act. The process, as I shall demonstrate, is complex and convoluted, and the respective roles of the Commissioner of the RCMP, of the Commission Chairman and of the Commission vary considerably from one scenario to another.

Scenario No. 1:

-  complaint by a member of the public (45.35(1))

-  to the Commissioner (45.35(1)(b))

-  disposed informally by the Commissioner on consent of both parties (45.36(1))

Scenario No. 2:

-  complaint by a member of the public (45.35(1))

-  to the Commissioner (45.35(1)(b))

-  dismissed summarily by the Commissioner for grounds, inter alia, of frivolity or bad faith (45.36(5))

Scenario No. 2a:

-  if complainant satisfied, end of the route

Scenario No. 2b:

-  if complainant dissatisfied, he may refer complaint to Commission for review (45.36(6)). Review as per scenario No. 7

Scenario No. 3:

-  complaint by a member of the public (45.35(1))

-  to the Commission (45.35(1)(b))

-  investigation by the RCMP in accordance to Rules made by Commissioner (45.36(4), 45.38)

-  report by Commissioner setting out a summary of the complaint, the results of the investigation, a summary of action taken or to be taken (45.4)

-  dissatisfied complainant may refer complaint to Commission for review (45.4(d))

-  review as per scenario No. 7

Scenario No. 4:

-  complaint by a member of the public (45.35(1))

-  to any member of the RCMP other than the Commissioner (45.35(1)(b))

-  disposition of complaint:

scenario No. 4a: as in scenario No. 1

scenario No. 4b: as in scenario No. 2

scenario No. 4c: as in scenario No. 3

Scenario No. 5:

-  complaint by the Commission Chairman (45.37(1))

-  notice to Minister and Commissioner (45.37(2))

-  investigation by the RCMP (45.37(4))

-  report by Commissioner as in scenario No. 3

-  possibility of reference to Commission for review as in scenario No. 3

Scenario No. 6:

-  complaint by member of public (scenario No. 6a) or by Commission Chairman (scenario No. 6b) (45.35, 45.37)

-  decision by the Commission Chairman, when he considers it advisable in the public interest, to have the Commission itself, rather than the RCMP, investigate the complaint (45.43(1), (2))

-  report by Commission Chairman as per scenario No. 8

Scenario No. 7: (after reference to Commission for review)

-  Commission Chairman furnishes Commissioner with copy of complaint (45.41(2))

-  Commissioner furnishes Commission Chairman with notice of summary dismissal (scenario No. 2) or with report of his investigation (scenario No. 3)

-  Commission Chairman reviews complaint:

Scenario No. 7a:

-  Commission Chairman is satisfied with disposition of the complaint by the RCMP and sends report to that effect to Minister and Commissioner (45.42(2))

Scenario No. 7b:

-  Commission Chairman is not satisfied with disposition of the complaint by the RCMP or considers that further inquiry necessary

Scenario No. 7b(i):

-  Commission Chairman prepares and sends report to Minister and Commissioner setting out such findings and recommendations as he sees fit (45.42(3)(a))

Scenario No. 7b(ii):

-  Commission Chairman requests Commissioner to conduct further investigation (45.42(3)(b))

Scenario No. 7b(iii):

-  Commission Chairman asks the Commission itself to investigate further or institutes a hearing to enquire into the complaint (45.42(3)(c))

Scenario No. 8: (after investigation by Commission, i.e. in scenarios No. 6 and No. 7b(iii))

Scenario No. 8a:

-  Commission Chairman prepares and sends report to Minister and Commissioner setting out such findings and recommendations as he sees fit (45.43(3))

Scenario No. 8b:

-  Commission Chairman institutes a hearing to enquire into the complaint (45.44(1)), such hearing to be held in public (45.45(11)), and on completion of hearing he prepares and sends his report to the Minister and the Commissioner (45.45(14))

Scenario No. 9: (the final step)

-  on receipt of the report of the Commission Chairman under scenarios Nos. 7b(iii), 8a and 8b, the Commissioner reviews the complaint in light of the findings and recommendations set out in the report (45.46(1))

-  after reviewing the complaint, the Commissioner notifies the Minister and the Commission Chairman of any further action he has been or will be taking with respect to the complaint, and, if his decision is not to take any action, he includes in the notice his reasons for not so acting (45.46(2))

-  after considering the Commissioner’s notice, the Commission Chairman prepares and sends to the Minister, the Commissioner and the parties a final report setting out such findings and recommendations as he sees fit (45.46(3)).

From the above it may be safely concluded that:

1. Some complaints start and end in the Commissioner’s office, without ever reaching the Commission (scenarios No. 1 and No. 2a);

2. Any complainant dissatisfied with the handling of the complaint by the RCMP may refer his complaint to the Commission for review (scenarios Nos. 2b, 3 and 5);

3. The review of the complaint by the Commission may be done without the participation of the RCMP (scenario No. 7b(iii));

4. A complaint may be initiated by the Commission or in the Commission, with respect to which the investigation is made by the Commission and the report prepared by the Commission Chairman, without the participation of the Commissioner or of the RCMP (scenario No. 6).

5. Any concrete action within the RCMP with respect to any given complaint remains within the discretion of the Commissioner and under his authority;

6. The Commission’s findings and recommendations have no binding effect on the Commissioner and on the Minister;

7. The last say as far as the final report goes is given to the Commission.

It strikes me that Parliament has devised a system which tries to encompass all possible situations. The whole process recognizes the special role of the Commissioner as head of the RCMP and final decision-maker whenever specific action within the RCMP is contemplated; the Commission has clearly not been set up to diminish the Commissioner’s role and powers within the RCMP. Yet at the same time the process recognizes that the Commission, in the fulfilment of its mandate which is to make non-binding findings and recommendations, is as independent as it can be and as it wants to be from the Commissioner himself and from the RCMP as a whole.

The Attorney General’s arguments are two-fold.

He submits first, that Parliament could not have intended to provide the Commission with jurisdiction to investigate the conduct of the very person who, as the head of the RCMP, has the ultimate responsibility for the management of the Force, not the least of which is to decide whether or not to act upon the findings and recommendations of institutions created by the Act to review grievances and complaints, such as the External Review Committee (Part II [sections 25-30 (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 16)]) and the Public Complaints Commission (Parts VI [sections 45.29-45.34 (as enacted idem)] and VII), and to decide what action should be taken if action is warranted.

This argument ignores in my view the basic differences that exist between the grievances, disciplinary and discharge, and demotion procedures established in Parts III [sections 31-36 (as enacted idem; as am. by S.C. 1990, c. 8, s. 65)], IV [sections 37-45.17 (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16; as am. by S.C. 1990, c. 8, ss. 66, 67)] and V [sections 45.18-45.28 (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16; as am. by S.C. 1990, c. 8, s. 68)] of the Act, and the public complaints process established in Part VII. As observed by MacGuigan J.A. in the RCMP Reference,[5] the public complaint system was to be “operationally and functionally distinct from the disciplinary system.”

Parts III to V deal with grievances, which are labour relations oriented, and discipline, which is Code of Conduct oriented (see subsections 41(1), 43(1)). Part VII deals with general conduct which is not necessarily to be examined in the context of labour relations or discipline.

Parts III to V apply to members of the RCMP only. Part VII applies also to any person appointed or employed under the authority of the Act, which includes the special constables (paragraph 7(1)(c) [as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 4]), the temporary civil employees (subsection 10(2)) and the civilian staff (subsection 10(1)).[6]

Parts III to V lead to concrete decisions to be made ultimately by the Commissioner which are “final and binding” and “except for judicial review under the Federal Court Act, [are] not subject to appeal to or review by any court” (subsections 32(1), 45.16(7) and 45.26(6)). Part VII leads to findings and recommendations by the Commission which have no binding effects and with respect to which no reference is made in the Act to judicial review under the Federal Court Act (subsection 45.46(3)). It is true that action may be taken under Part VII by the Commissioner, but it is doubtful whether such action can be equated with the decisions made under Parts III to V.

Parts III to V give the last word to the Commissioner, whose decision is final and binding. Part VII gives the last word to the Commission Chairman, whose findings and recommendations constitute the “final report” (subsection 45.46(3)) but have no binding effect.

The External Review Committee established under Part II to review certain grievances under Part III (subsection 33(1)) is not public-oriented; it deals with grievances by members against the Force and holds its hearing in private (subsection 35(10)). The Commission established under Part VII to review public complaints is, by its very nature, public-oriented and its hearing, if any, is held in public (subsection 45.45(11)).

Decisions by the Commissioner under Parts III to V are member-oriented. They touch upon the rights and duties of a given member. Recommendations by the Commission under Part VII, while initially triggered by a specific complaint against the conduct of a given member, are member-oriented, for sure, but they can also be, when circumstances permit, policy-oriented. A perusal of the recommendations made by the Commission since the beginning of its operations in 1988, examples of which are to be found in the Commission’s annual reports to Parliament, illustrates the important policy role the Commission has played, and I did not hear the Attorney General argue that it was not within the Commission’s jurisdiction to make policy recommendations. Indeed a major input of the Commission would be lost if it could not make these types of recommendations.

Parliament has chosen to establish, standing somewhere in between an External Review Committee whose narrow powers are confined to labour grievances of individual members and boards of inquiry whose vast powers include that of investigating the conduct of the Force itself (subsection 24(1)), a Public Complaints Commission given the power, notably when its chairman “considers it advisable in the public interest” (subsection 45.43(1)), to investigate the conduct of members and others employed in the RCMP and make recommendations to the Minister and the Commissioner. In so doing, Parliament must have intended the Commission to play precisely the policy role, circumscribed as it may be by the context of the individual conduct being investigated, which it has been playing since its inception and which was contemplated by the Solicitor General in his remarks to the House of Commons on February 5, 1986:[7]

I do not think it would be desirable for us to set up a permanent body of inquiry into policy matters within the RCMP. I think it is more appropriate that we should have a complaints commission which, in looking at specific complaints of specific behaviour, would have a chance to review that and to look at any related information it felt was appropriate. There is no question that it would have the ability to make findings which reflect on policy, and so it should.

I shall come back later on to the respective roles of the Commission and of a board of inquiry appointed pursuant to subsection 24(1).

The Attorney General’s first argument, based as it is on the Commissioner’s ultimate responsibility for taking action, fails: there is no incompatibility between the Commissioner’s power to act and the Commission’s power to recommend.

The Attorney General’s second line of argument is of a more technical nature. He submits that given the statutory role of the Commissioner in the public complaints process, an interpretation of the Act which gives jurisdiction to the Commission over the Commissioner was not contemplated by Parliament. The effect of such an interpretation, the argument goes, is to render the Commissioner the final arbiter of a complaint in respect of the Commissioner’s own conduct, thus imposing the contradictory task of accepting or rejecting findings or recommendations which may run contrary to the Commissioner’s personal interest, and acting appropriately upon such findings or recommendations.

That there are some drafting anomalies in Part VII of the Act that could easily have been avoided is readily conceded. As noted by the Trial Judge, the definition of “member,” in subsection 2(1) of the Act, would make the Commission members, including the Chairman, subject to the public complaints process under a strict or literal application of section 45.35 of the Act. And as argued by the Attorney General, a system which would allow the ultimate decision-maker to conduct an investigation of his own conduct, would be a strange animal indeed. The Court must, nevertheless, do its best to give some meaning to the imprecise wording used by Parliament.

A complaint may be made concerning the conduct of “any member or other person appointed or employed under the authority of this Act” (subsection 45.35(1)). “Member,” as defined in subsection 2(1), includes a person who has been appointed as an officer under section 5 of the Act, the very section that provides for the appointment of “an officer, to be known as the Commissioner.” That amended definition of “member” was adopted in 1986 at the same time as Part VII.[8]

Parliament could not have ignored, in using the words it used in subsection 43.35(1) which is the cornerstone of the new public complaints process it was setting up, that these words allowed for a complaint against the very conduct of the Commissioner himself. Furthermore, these same words are used in paragraph 45.35(1)(b) and it is unquestionable that these words allow for a complaint to be made to the Commissioner himself. The very same words used twice in the same subsection should, according to ordinary canons of construction, be given the same meaning. This should be especially so with respect to a word, “member,” which is expressly defined in the interpretation section of the Act. I further note that the complaint, when it is made to the RCMP rather than to the Commission, need not be made to the Commissioner himself: it can be made to “any member,” which suggests the possibility of a complaint concerning the conduct of the Commissioner being made, for example, to the Deputy Commissioner.

From then on, of course, the process of dealing with the complaints is set up in a general way and built, as it should be, on the premise that the Commissioner “has the control and management of the Force and all matters connected therewith” (subsection 5(1) of the Act). Given the fact that the Commissioner, by the very words of subsection 45.35(1), could be the target of an investigation, given the fact that this investigation could be made without the participation of the RCMP and of the Commissioner (scenario No. 6a) and given the fact that the Commissioner is given by subsection 5(2) of the Act the power to delegate any of his powers, duties or functions under Part VII of the Act except those found in subsections 45.46(1) and (2), it could safely be assumed by Parliament that whenever a complaint filed concerning the conduct of the Commissioner were to be processed by the RCMP rather than by the Commission, the Commissioner would ask his Deputy Commissioner to take charge of the process up to the final review stage (subsections 45.46(1) and (2)), where the Commissioner himself would have to take over. I might add that I see in this power of delegation given to the Commissioner with respect to most of his role in the public complaints process, another indication that his own conduct could be investigated.

The Attorney General’s second argument, therefore, is reduced to the submission that the fact that the Commissioner cannot delegate his powers and duty of final review under subsections 45.46(1) and (2), is a decisive indication that his own conduct was not meant to be investigated under Part VII.

Again, in my view, this submission fails. One has to be reminded that the Commissioner, within the RCMP, always has the last word, and that includes the last word with respect to what he, personally, should do. No one in the Force can dictate to him what to do and it would have been pervasive of the Commissioner’s authority within the RCMP to allow the Commission to make non-binding findings and recommendations, even with respect to his own conduct, to someone in the Force other than the Commissioner himself. Under the Act, the Commissioner is only accountable to the Minister, under whose “direction” (subsection 5(1)) he has “the control and management of the Force and all matters connected therewith.” That hierarchy is very much respected in section 45.46: should, for example, the Commissioner decide not to act on a recommendation concerning his own conduct, the final say will belong to the Minister, to whom the Commission Chairman also sends his final report, and to the public, which, if it has not yet been informed of the proceedings through a public hearing held pursuant to section 45.44, will be informed through the annual report of the Commission that the Minister “shall cause … to be laid before each House of Parliament” (section 45.34).

The end result, in my view, is that found by MacKay J. in his remarkably well-drafted reasons: the Commission, whenever it feels it has to rise to the occasion in the interest of the public, has all the tools it needs to investigate a complaint directed at the conduct of the Commissioner himself.

It is true, as suggested by the Attorney General, that the process does not expressly provide for the situation where a complaint is directed at the conduct of the Commissioner and that, by not doing so, it expressly gives the Commissioner a role in the process which is prima facie incompatible with his standing as a person whose conduct is investigated.

Yet one can hardly have expected Parliament to openly invite the public to file complaints against the Commissioner and to devise a distinct mechanism for these rare occasions where a member of the public would have a legitimate complaint against the very conduct of the Commissioner himself. When the occasion arises, as it did in the present instance, the process can easily be adapted and there is, indeed, very little to adapt when one keeps in mind the respective roles of the Commissioner and of the Commission Chairman as well as the Commissioner’s power of delegation.

I have taken note of the Attorney General’s fear that the Commissioner, because of his unique position within the Force, could become a lighting rod for complaints by persons, including disgruntled members, who feel aggrieved or who seek a form of retaliation for perceived injustice. That fear, in my view, has little foundation. The Commission itself will not use its power under section 45.43 unless the Commission Chairman considers it “advisable in the public interest.” A frivolous complaint against the Commissioner’s conduct would be dismissed by the person to whom he would have delegated his power under section 45.36, and even if the dissatisfied complainant were to refer his complaint to the Commission for review, the Commission Chairman, if he is satisfied that the complaint is without merit, would so inform the Minister and the complainant and that would be the end of the matter (scenario No. 7a).

I have been therefore satisfied that the Commissioner is a “member” whose conduct can be investigated by the Commission and that the total independence of the Commission vis-à-vis the Force and vis-à-vis the Commissioner ensures that (a) the decision of the Commission to file a complaint against and/or to investigate the conduct of the Commissioner; (b) the investigation of such complaint by the Commission; and (c) the findings and recommendations of the Commission with respect to such complaint, can be made, conducted and arrived at without any interference from the Force or from the Commissioner and without interfering with the Commissioner’s ultimate authority over the control and management of the Force.

Question 1 should be answered in the affirmative.

Question 2(i): Jurisdiction of the Commission in regard to complaints concerning the conduct of a person who retires or ceases to be appointed under the Act before initiation of the complaint.

A plain reading of subsection 45.35(1) and a close reading of the extracts drawn to our attention by counsel of the Report of the Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure within the Royal Canadian Mounted Police (the Marin Report, 1976); of volume 1 of the Second Report of the Commission of Inquiry concerning certain activities of the Royal Canadian Mounted Police [Freedom and Security under the Law (the McDonald Report, 1981); of the Annual Report 1989-90 of the RCMP Public Complaints Commission and of the Debates in the House of Commons, has led me to the conclusion that status of membership in the Force is essential at the time of complaint.

A complaint under Part VII is directed at the conduct of a member. By the very definition of “member” in section 2 of the Act, a former member is not a member. To argue that a complaint can be directed at the conduct of a former member is to argue against the plain meaning of the very words used by Parliament.

The public complaints process supposes that at the time the complaint is made the Commissioner is in a position of authority over the person whose conduct is complained of. The complaint may be made to a member of the Force (paragraph 45.35(1)(b)); the Commissioner has the obligation to notify the member (subsections 45.35(4), 45.37(3)); the Commisioner may attempt to dispose informally of the complaint with the consent of the member (subsection 45.36(1)); the Commissioner may make rules governing the procedures to be followed by the Force in notifying persons (section 45.38). One would have expected Parliament if it intended to give the Commissioner any authority over someone who was no longer a member of the Force or to impose upon the Commissioner any legal and enforceable duty, such as that of giving notice of a complaint, with respect to someone who was no longer within his reach, to have done so expressly.

Furthermore, the fact that no period of limitation has been set by Parliament with respect to public complaints is an indication, in my view, that it was not contemplated that complaints be filed once the member whose conduct was the subject-matter of the complaint was no longer a member of the Force. As observed by the learned Trial Judge, to hold that complaints may be filed any time against former members is to hold that members of the RCMP and others employed with the RCMP would carry never ending obligations after their service ends which have no ready counterpart in the Public Service. Such an unusual purpose would require clear expression.

Finally, this interpretation would seem to remedy the second mischief identified by MacGuigan J.A. in the RCMP Reference,[9] that is, the pillorying of members of the Force. The possibility of allowing complaints to be filed with respect to the conduct of former members does not appear, from a perusal of the documents hereinbefore referred to, to have ever been contemplated. It is indeed remarkable that Parliament did not retain the suggestion contained in the Marin Report that the complaint process should apply to complaints alleging the failure of the Force

itself to meet public expectations[10] and chose to vest in boards of inquiry appointed by the Minister or the Commissioner pursuant to subsection 24(1) of the Act rather than in the Commission the more general power of investigating the conduct of the Force itself.

Clearly, in my view, Parliament intended to restrict, and did indeed restrict, the jurisdiction of the Commission to that of looking at specific complaints of specific behaviour and avoided setting up, to use the words of the Solicitor General previously quoted, “a permanent body of inquiry into policy matters within the RCMP.” To accept the Commission’s argument that its jurisdiction extends to complaints filed after the discharge of the member whose conduct is complained of, is to transform the Commission into that very permanent body of inquiry which Parliament opted not to set up, preferring instead to provide for the appointment on an ad hoc basis of boards of inquiry. The public and the Commission were given the right to initiate complaints, but only with respect to the specific conduct of present members of the Force. Whether Parliament should have gone further is not for me to decide.

I appreciate that the conduct of members in the late stage of their career might escape public scrutiny by the Commission as complaints may not always in practical terms be filed prior to their discharge. But their conduct would nevertheless be subject to civil and criminal proceedings, if need be, or to other sorts of inquiry. It is not my role to fill what might be seen by some people as a loophole in the legislation nor am I prepared to assume that retiring members will behave in such a way prior to their discharge as to benefit from that loophole while risking other forms, maybe more prejudicial, of inquiries. This is in my view the type of in terrorem argument which was rightly dismissed by Cory J. in Maurice v. Priel.[11]

My decision, of course, is based on the wording of the RCMP Act and on the special role of the Commission under that Act. One has to be careful, in cases like this, not to follow blindly decisions reached in a different statutory context and with respect to more typical disciplinary tribunals. That being said, I note that I have reached the same result as that reached by the Supreme Court of Canada in Maurice v. Priel[12] and by the Ontario Court of Appeal in Chalmers v. Toronto Stock Exchange.[13] In Sansfaçon c. Tribunal des professions,[14] Lévesque J. reached a different conclusion in a case where An Act respecting the Barreau du Québec [R.S.Q., c. B-1] expressly granted the Bar Discipline Committee jurisdiction over persons who were no longer members of the Bar.

I would answer question 2(i) in the negative.

Question 2(ii) Jurisdiction of the Commission in regard to complaints concerning the conduct of a person who retires or ceases to be appointed under the Act after the complaint is initiated but before the complaint is resolved.

The Attorney General here again relies upon the meaning to be ascribed to the word “member” in section 45.35. He submits that the statutory definition of “member” in section 2 of the Act clearly means that the public complaints process comes to a halt when the member whose conduct is being investigated ceases to be a member of the Force. He adds that when reference was intended to be made to former members, it was done expressly, such as in paragraph 23(3)(a) [as am. idem, s. 14] and subsection 49(2) [as am. idem, s. 20] of the Act and in section 76 and paragraph 92(1)(g) of the Royal Canadian Mounted Police Regulations, 1988[15] (the “RCMP Regulations”).

With respect, the submission made on behalf of the Attorney General begs the question. There is no doubt that a complaint can only relate to conduct in the performance of duties or functions under the Act and that conduct by someone who at the time of conduct is not a member or who is no longer a member cannot be the subject-matter of the complaint. In other words, it is clear that the only conduct that can be investigated is conduct by a member in the performance of his or her duties or functions. The question remains, however, whether such conduct can only be investigated while the member concerned is still a member of the Force.

Contrary to the situation that existed with respect to question 2(i), once the complaint is filed and the possibility given to the Commission to conduct its own investigation or hold its own hearing, it does not matter whether or not the Commissioner is in a position of authority over the person whose conduct is being investigated. The notice of the decision to institute a hearing is sent by the Commission Chairman, not by the Commissioner, to the member (subsection 45.44(1)) and thereafter there is no need whatsoever for the Commissioner to communicate with the member nor is there any duty imposed on the Commissioner to so communicate. Even after he has received the report of the Commission and reviewed the complaint, the Commissioner is under no duty to inform the member of his decision to act or not to act on the recommendations (subsection 45.46(2)).

Furthermore, even had there been such a duty, the Commissioner would presumably have been in a position of authority, after the complaint was filed and before retirement or discharge of the member, to request the member to participate in the investigation notwithstanding the fact that he was no longer to be a member of the Force. As noted by counsel for the Attorney General of Canada, the Act and the RCMP Regulations require the issuance of a discharge before a resignation or retirement can take effect; it is simply not within the power of a member to unilaterally resign or retire from the Force. The Commissioner could therefore either require that the status of the member be maintained until the conclusion of the investigation or issue the discharge on the condition that the member participate in the investigation.[16]

Strong support for this interpretation is to be found in the position adopted by the Commissioner himself in the exercise of his authority under section 45.38 of the Act, when he made rules respecting public complaints in the form of Standing Orders,[17] which include the following provision:

10. An investigation into a complaint shall continue to conclusion whether or not the member or other person whose conduct is the subject-matter of the complaint resigns or terminates employment with the Force.

Rule 10 does not, of course, apply to investigations made by the Commission but it is a clear indication that even in the eyes of the Commissioner himself when he conducts his own investigation, the fact that a person whose conduct is investigated is no longer a member of the Force, is no practical or theoretical obstacle to the continuation of the inquiry. Surely, what the Commissioner can do, before discharge, to ensure the continuation of his own investigation, he can do to ensure the continuation of the Commission’s investigation.

The fact that no mention is made of “former members” is of no consequence. It is clear, as I have already indicated, that conduct of former members is caught by the process only if former members were members at the time of conduct. As the defining moments retained by Parliament were the time of conduct and the time of complaint rather than the time of membership, there was no need to refer to “former members.” The sections of the Act and the Regulations we have been referred to that use the words “former member” are either benefit provisions which, had it not been for that explicit reference, would not have applied to former members, or, and I am referring to subsection 49(2) of the Act, offence provisions that make a special exception in favour of former members.

A more decisive argument, however, is to be found in the very nature of the Commission. As I have said earlier, the public complaints process cannot and should not be equated with disciplinary proceedings which are already dealt with in Part IV of the Act. The objects and purposes of disciplinary proceedings are very different from the objects and purposes of Part VII of the Act. They are decision-oriented. They generally determine the guilt or innocence of the person complained against. They end up, if necessary, in some form of punishment. They are directed at the individual’s status as a member, and whether that status should continue in light of the individual’s alleged past misconduct. Where that individual is no longer member of the profession or trade in issue, the proceedings simply loose their raison d’être and are discontinued, unless, of course, there are provisions to the contrary in the applicable legislation (see note 16).

By contrast, the objects and purposes of Part VII of the Act are recommendations-oriented. The recommendations of the Commission aim at preventing the recurrence of conduct found to be questionable through suggestions made to the individual complained against (if he or she is still a member of the RCMP) and the Force in general. In the end, it may be said that the Commission, in investigating a complaint, is expressing a positive concern for the individual complained against as well as a collective and prospective concern for the Force and the Canadian public. To use the words of MacGuigan J.A. in the RCMP Reference,[18] “the Commission is rather like an ombudsman with an opportunity to persuade the ultimate authority, the Commissioner.”

This is why decisions pertaining to the jurisdiction of discipline committees over former members with respect to complaints filed while they were members, are not necessarily relevant.[19] Of interest, however, are these observations by Disbery J., in Samuels, at page 646:

He was, at the time the charge was laid and also when he participated in the hearing in November, a member on the register and as such, subject to the disciplinary powers of the College and answerable to its discipline committee for any misconduct which might be proved to have been committed by him while he was such a member. He cannot prevent the final determination of the charge by the simple device of having his name struck from the register by his deliberate failure to pay his fee. There is nothing in the Act prohibiting the discipline committee from completing proceedings commenced while a doctor is a member of the College, at a time after he has ceased to be a member ….

It will also be useful to refer to these observations by Chief Justice Bayda, who delivered the majority opinion of the Saskatchewan Court of Appeal in Maurice v. Priel,[20] (which was eventually upheld by the Supreme Court:

The intent of the disciplinary provisions is to discipline the legal practitioners of this province for their professional misdeeds primarily (but not exclusively) through the use of an economic deterrent. The offending practitioner may be required to pay a fine or suffer the economic set back of a suspension from practise or even a complete disbarment. The intent is to punish — so that in the end the object of the Act may be achieved. The object is to protect the public and foster its well-being through the maintenance of high professional standards in the practice of law and in the administration of justice generally.

It is important to keep in mind what the intent is not. The intent of the disciplinary provisions is not to lay down precedents for future guidance of practitioners, although that may be one of the salutary effects consequent upon the taking of disciplinary proceedings. The intent is not to make declarations or pronouncements about what is and what is not unprofessional misconduct. The intent is not to engage in some hollow, high-minded act either of censure or sanctimony directed at some long past misdeed or misconduct. In fact, the proceedings are not directed at conduct at all. They are directed at an individual. They are not in the nature of proceedings in rem but are proceedings in personam. If the individual for some reason cannot effectively be disciplined, the enactments do not intend that the proceedings should be taken anyway so that at least the conduct may be “disciplined” by the making of an appropriate pronouncement. Without an individual who can respond to the disciplinary measures the proceedings come to naught.

In the case at bar, I have no difficulty in reaching the conclusion that the public complaints proceedings are to some extent in the nature of proceedings in rem. Parliament did not go through the whole business of setting up a new and independent commission with a view to restore the confidence of the Canadian people in the handling of complaints by the RCMP, to have complaints duly filed concerning the specific conduct of members of the Force summarily abandoned on the ground that the members concerned were discharged from the Force after the filing of the complaint.

I would answer question 2(ii) in the affirmative.

When I examine questions No. 2(i) and (ii) as a whole, it seems to me that there is some logic in the answer given to each of them. Because the Commission is not a permanent nor even an ad hoc commission of inquiry on the conduct of the Force itself, it was given no jurisdiction to hear complaints related, at the time of their filing, to former members of the Force; and because the Commission is something more than a disciplinary tribunal, it was given jurisdiction to continue an investigation notwithstanding the fact that the member concerned ceases, at some point in time between the filing of the complaint and its resolution, to be a member of the Force.

As a result, the two mischiefs identified by MacGuigan J.A. in the RCMP Reference[21] have been taken into account: the confidence of the public in the process set out to examine specific complaints made with respect to the conduct of members of the RCMP has been restored through the establishment of a commission entirely independent from the RCMP; and the possibility of a pillorying of the members has been considerably reduced by the fact that the Commission is not allowed to entertain complaints filed with respect to the conduct of persons who are no longer members of the RCMP.

The Commission, in its Annual Report, 1989-90, at page 106, has suggested that “much has happened since the Marin Commission reported in 1976,” that “the thinking behind the solutions adopted in Part VII may well have been overtaken by general developments in the field of external review” and that “at some point there should be a re-examination of the application of the major policy issues to Part VII of the RCMP Act.”

The Court, absent re-examination, which is not in its domain, would certainly welcome clarification, for clarification, as appears from these reasons, is definitely needed.

CONCLUSION

The three questions raised for the opinion of the Court in the stated case should therefore be answered in the manner suggested by MacKay J.

The appeal and the cross-appeal should be dismissed. Costs should be allowed to Mr. Jensen on the cross-appeal as against the Commission. Costs should be allowed to the Commission on the appeal as against the Attorney General of Canada.

Hugessen J.A.: I agree.

Linden J.A.: I agree.

* * *

APPENDIX

Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, as amended by R.S.C., 1985 (2nd Supp.), c. 8 and by S.C. 1990, c. 8.

PART III

GRIEVANCES

Presentation of Grievances

…

32. (1) The Commissioner constitutes the final level in the grievance process and the Commissioner’s decision in respect of any grievance is final and binding and, except for judicial review under the Federal Court Act, is not subject to appeal to or review by any court.

(2) The Commissioner is not bound to act on any findings or recommendations set out in a report with respect to a grievance referred to the Committee under section 33, but if the Commissioner does not so act, the Commissioner shall include in the decision on the disposition of the grievance the reasons for not so acting.

…

PART IV

DISCIPLINE

…

Informal Disciplinary Action

…

42. …

(6) The Commissioner constitutes the final level in the appeal process with respect to appeals taken by officers from informal disciplinary action referred to in any of paragraphs 41(1)(e) to (g) and with respect to appeals taken by members, other than officers, from informal disciplinary action referred to in paragraph 41(1)(g) and the Commissioner’s decision on any such appeal is final and binding and, except for judicial review under the Federal Court Act, is not subject to appeal to or review by any court.

…

Appeal

…

45.16 ….

(6) 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 45.15, but if the Commissioner does not so act, the Commissioner shall include in the decision on the appeal the reasons for not so acting.

(7) A decision of the Commissioner on an appeal under section 45.14 is final and binding and, except for judicial review under the Federal Court Act, is not subject to appeal to or review by any court.

…

PART V

DISCHARGE AND DEMOTION

…

Appeal

…

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.

(6) A decision of the Commissioner on an appeal under section 45.24 is final and binding and, except for judicial review under the Federal Court Act, is not subject to appeal to or review by any court.

…

PART VI

ROYAL CANADIAN MOUNTED POLICE PUBLIC COMPLAINTS COMMISSION

Establishment and Organization of Commission

45.29 (1) There is hereby established a commission, to be known as the Royal Canadian Mounted Police Public Complaints Commission, consisting of a Chairman, a Vice-Chairman, a member for each contracting province and not more than three other members, to be appointed by order of the Governor in Council.

…

(6) No member of the Force is eligible to be appointed or to continue as a member of the Commission.

…

45.3 (1) The Commission Chairman is the chief executive officer of the Commission and has supervision over and direction of the work and staff of the Commission.

…

Annual Report

45.34 The Commission Chairman shall, within three months after the end of each fiscal year, submit to the Minister a report of the activities of the Commission during that year and its recommendations, if any, and the Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the day the Minister receives it.

PART VII

PUBLIC COMPLAINTS

Receipt and Investigation of Complaints

45.35 (1) Any member of the public having a complaint concerning the conduct, in the performance of any duty or function under this Act, of any member or other person appointed or employed under the authority of this Act may, whether or not that member of the public is affected by the subject-matter of the complaint, make the complaint to

(a) the Commission;

(b) any member or other person appointed or employed under the authority of this Act; or

(c) the provincial authority in the province in which the subject-matter of the complaint arose that is responsible for the receipt and investigation of complaints by the public against police.

(2) Every complaint under subsection (1) shall be acknowledged in writing, if the complaint is in writing or if the complainant requests that the complaint be so acknowledged.

(3) The Commissioner shall be notified of every complaint under subsection (1).

(4) Forthwith after being notified of a complaint under subsection (3), the Commissioner shall notify in writing the member or other person whose conduct is the subject-matter of the complaint of the substance of the complaint unless, in the Commissioner’s opinion, to do so might adversely affect or hinder any investigation that is being or may be carried out in respect of the complaint.

45.36 (1) The Commissioner shall consider whether a complaint under subsection 45.35(1) can be disposed of informally and, with the consent of the complainant and the member or other person whose conduct is the subject-matter of the complaint, may attempt to so dispose of the complaint.

(2) No answer or statement made, in the course of attempting to dispose of a complaint informally, by the complainant or the member or other person whose conduct is the subject-matter of the complaint shall be used or receivable in any criminal, civil or administrative proceedings other than, where the answer or statement was made by a member, a hearing under section 45.1 into an allegation that with intent to mislead the member gave the answer or statement knowing it to be false.

(3) Where a complaint is disposed of informally, a record shall be made of the manner in which the complaint was disposed of, the complainant’s agreement to the disposition shall be signified in writing by the complainant and the member or other person whose conduct is the subject-matter of the complaint shall be informed of the disposition.

(4) Where a complaint is not disposed of informally, the complaint shall be investigated by the Force in accordance with rules made pursuant to section 45.38.

(5) Notwithstanding any other provision of this Part, the Commissioner may direct that no investigation of a complaint under subsection 45.35(1) be commenced or that an investigation of such a complaint be terminated if, in the Commissioner’s opinion,

(a) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided under any other Act of Parliament;

(b) the complaint is trivial, frivolous, vexatious or made in bad faith; or

(c) having regard to all the circumstances, investigation or further investigation is not necessary or reasonably practicable.

(6) Where the Commissioner makes a direction in respect of a complaint pursuant to subsection (5), the Commissioner shall give notice in writing to the complainant and, if the member or other person whose conduct is the subject-matter of the complaint has been notified under subsection 45.35(4), to that member or other person, of the direction and the reasons therefor and the right of the complainant to refer the complaint to the Commission for review if the complainant is not satisfied with the direction.

45.37 (1) Where the Commission Chairman is satisfied that there are reasonable grounds to investigate the conduct, in the performance of any duty or function under this Act, of any member or other person appointed or employed under the authority of this Act, the Commission Chairman may initiate a complaint in relation thereto and where the Commission Chairman does so, unless the context otherwise requires, a reference hereafter in this Part to a complainant includes a reference to the Commission Chairman.

(2) The Commission Chairman shall notify the Minister and the Commissioner of any complaint initiated under subsection (1).

(3) Forthwith after being notified of a complaint under subsection (2), the Commissioner shall notify in writing the member or other person whose conduct is the subject-matter of the complaint of the substance of the complaint unless, in the Commissioner’s opinion, to do so might adversely affect or hinder any investigation that is being or may be carried out in respect of the complaint.

(4) A complaint under subsection (1) shall be investigated by the Force in accordance with rules made pursuant to section 45.38.

45.38 The Commissioner may make rules governing the procedures to be followed by the Force in notifying persons under this Part and in investigating, disposing of or otherwise dealing with complaints under this Part.

45.39 The Commissioner shall notify in writing the complainant and the member or other person whose conduct is the subject-matter of the complaint of the status of the investigation of the complaint to date not later than forty-five days after being notified of the complaint and monthly thereafter during the course of the investigation unless, in the Commissioner’s opinion, to do so might adversely affect or hinder any investigation that is being or may be carried out in respect of the complaint.

45.4 On completion of the investigation of a complaint, the Commissioner shall send to the complainant and the member or other person whose conduct is the subject-matter of the complaint a report setting out

(a) a summary of the complaint;

(b) the results of the investigation;

(c) a summary of any action that has been or will be taken with respect to resolution of the complaint; and

(d) in the case of a complaint under subsection 45.35(1), the right of the complainant to refer the complaint to the Commission for review if the complainant is not satisfied with the disposition of the complaint by the Force.

Reference to Commission

45.41 (1) A complainant under subsection 45.35(1) who is not satisfied with the disposition of the complaint by the Force or with a direction under subsection 45.36(5) in respect of the complaint may refer the complaint in writing to the Commission for review.

(2) Where a complainant refers a complaint to the Commission pursuant to subsection (1),

(a) the Commission Chairman shall furnish the Commissioner with a copy of the complaint; and

(b) the Commissioner shall furnish the Commission Chairman with the notice under subsection 45.36(6) or the report under section 45.4 in respect of the complaint, as the case may be, and such other materials under the control of the Force as are relevant to the complaint.

45.42 (1) The Commission Chairman shall review every complaint referred to the Commission pursuant to subsection 45.41(1) or initiated under subsection 45.37(1) unless the Commission Chairman has previously investigated, or instituted a hearing to inquire into, the complaint under section 45.43.

(2) Where, after reviewing a complaint, the Commission Chairman is satisfied with the disposition of the complaint by the Force, the Commission Chairman shall prepare and send a report in writing to that effect to the Minister, the Commissioner, the member or other person whose conduct is the subject-matter of the complaint and, in the case of a complaint under subsection 45.35(1), the complainant.

(3) Where, after reviewing a complaint, the Commission Chairman is not satisfied with the disposition of the complaint by the Force or considers that further inquiry is warranted, the Commission Chairman may

(a) prepare and send to the Minister and the Commissioner a report in writing setting out such findings and recommendations with respect to the complaint as the Commission Chairman sees fit;

(b) request the Commissioner to conduct a further investigation into the complaint; or

(c) investigate the complaint further or institute a hearing to inquire into the complaint.

45.43 (1) Where the Commission Chairman considers it advisable in the public interest, the Commission Chairman may investigate, or institute a hearing to inquire into, a complaint concerning the conduct, in the performance of any duty or function under this Act, of any member or other person appointed or employed under the authority of this Act, whether or not the complaint has been investigated, reported on or otherwise dealt with by the Force under this Part.

(2) Notwithstanding any other provision of this Part, where the Commission Chairman investigates, or institutes a hearing to inquire into, a complaint pursuant to subsection (1), the Force is not required to investigate, report on or otherwise deal with the complaint before the report under subsection (3) or the interim report under subsection 45.45(14) with respect to the complaint has been received by the Commissioner.

(3) On completion of an investigation under paragraph 45.42(3)(c) or subsection (1), the Commission Chairman shall prepare and send to the Minister and the Commissioner a report in writing setting out such findings and recommendations with respect to the complaint as the Commission Chairman sees fit unless the Commission Chairman has instituted, or intends to institute, a hearing to inquire into the complaint under that paragraph or subsection.

45.44 (1) Where the Commission Chairman decides to institute a hearing to inquire into a complaint pursuant to subsection 45.42(3) or 45.43(1), the Commission Chairman shall assign the member or members of the Commission to conduct the hearing and send a notice in writing of the decision to the Minister, the Commissioner, the member or other person whose conduct is the subject-matter of the complaint and, in the case of a complaint under subsection 45.35(1), the complainant.

(2) Where a complaint that is to be the subject of a hearing concerns conduct occurring in the course of providing services pursuant to an arrangement entered into under section 20, the member of the Commission appointed for the province in which the conduct occurred shall be assigned, either alone or with other members of the Commission, to conduct the hearing.

45.45 (1) For the purposes of this section, the member or members conducting a hearing to inquire into a complaint are deemed to be the Commission.

(2) The Commission shall serve a notice in writing of the time and place appointed for a hearing on the parties.

(3) Where a party wishes to appear before the Commission, the Commission shall sit at such place in Canada and at such time as may be fixed by the Commission, having regard to the convenience of the parties.

(4) The Commission has, in relation to the complaint before it, the powers conferred on a board of inquiry, in relation to the matter before it, by paragraphs 24.1(3)(a), (b) and (c).

(5) The parties and any other person who satisfies the Commission that the person has a substantial and direct interest in a complaint before the Commission shall be afforded a full and ample opportunity, in person or by counsel, to present evidence, to cross-examine witnesses and to make representations at the hearing.

(6) The Commission shall permit any person who gives evidence at a hearing to be represented by counsel.

(7) In addition to the rights conferred by subsections (5) and (6), the appropriate officer may be represented or assisted at a hearing by any other member.

(8) Notwithstanding subsection (4), the Commission may not receive or accept

(a) subject to subsection (9), any evidence or other information that would be inadmissible in a court of law by reason of any privilege under the law of evidence;

(b) any answer or statement made in response to a question described in subsection 24.1(7), 35(8), 40(2), 45.1(11) or 45.22(8);

(c) any answer or statement made in response to a question described in subsection (9) in any hearing under this section into any other complaint; or

(d) any answer or statement made in the course of attempting to dispose of a complaint under section 45.36.

(9) In a hearing, no witness shall be excused from answering any question relating to the complaint before the Commission when required to do so by the Commission on the ground that the answer to the question may tend to criminate the witness or subject the witness to any proceeding or penalty.

(10) Where the witness is a member, no answer or statement made in response to a question described in subsection (9) shall be used or receivable against the witness in any hearing under section 45.1 into an allegation of contravention of the Code of Conduct by the witness, other than a hearing into an allegation that with intent to mislead the witness gave the answer or statement knowing it to be false.

(11) A hearing to inquire into a complaint shall be held in public, except that the Commission may order the hearing or any part of the hearing to be held in private if it is of the opinion that during the course of the hearing any of the following information will likely be disclosed, namely,

(a) information the disclosure of which could reasonably be expected to be injurious to the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities;

(b) information the disclosure of which could reasonably be expected to be injurious to law enforcement; and

(c) information respecting a person’s financial or personal affairs where that person’s interest outweighs the public’s interest in the information.

…

(14) On completion of a hearing, the Commission shall prepare and send to the Minister and the Commissioner a report in writing setting out such findings and recommendations with respect to the complaint as the Commission sees fit.

…

45.46 (1) On receipt of a report under subsection 45.42(3), 45.43(3) or 45.45(14), the Commissioner shall review the complaint in light of the findings and recommendations set out in the report.

(2) After reviewing a complaint in accordance with subsection (1), the Commissioner shall notify the Minister and the Commission Chairman in writing of any further action that has been or will be taken with respect to the complaint, and where the Commissioner decides not to act on any findings or recommendations set out in the report, the Commissioner shall include in the notice the reasons for not so acting.

(3) After considering a notice under subsection (2), the Commission Chairman shall prepare and send to the Minister, the Commissioner and the parties a final report in writing setting out such findings and recommendations with respect to the complaint as the Commission Chairman sees fit.

45.47 The Commissioner shall

(a) establish and maintain a record of all complaints received by the Force under this Part; and

(b) on request, make available to the Commission any information contained in the record.

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