A-1081-84
Reg. No. 26404, Cpl. R. J. Lutes (Applicant)
v.
Commissioner of the Royal Canadian Mounted
Police (Respondent)
Court of Appeal, Pratte, Heald and Urie JJ.—
Calgary, April 18; Ottawa, June 13, 1985.
Judicial review — Applications to review — RCMP —
Application to set aside Commissioner's decision upholding
Board of Review decision recommending discharge, and order
ing review by new Discharge and Demotion Board — Notice of
Intent to Recommend Discharge served on applicant shortly
after charged with shoplifting — Sole stated ground for
discharge unsuitability based on involvement in commission of
offence under enactment of Parliament of Canada — Appli
cant acquitted — Discharge and Demotion Board recommend
ing retention in force — Board of Review recommending
discharge — Commissioner ordering review by newly con
stituted Discharge and Demotion Board — As appeal to
Commissioner based on record, decision tainted by any error in
law of Discharge and Demotion Board: Willette v. The Com
missioner of the Royal Canadian Mounted Police, [1985] 1
F.C. 423; (1985), 56 N.R. 161 (C.A.) — Basis for alleged
unsuitability and Commissioner's authority to discharge lost
upon acquittal — No basis to order new Discharge and
Demotion Board — Re Laroche and Beirsdorfer (1981), 131
D.L.R. (3d) 152 (F.C.A.), implying right to consider whether
conduct serious enough to constitute criminal offence in Com
missioner's authority to discharge for unsuitability distin
guished because of changes in wording of Commissioner's
standing order — Commissioner to decide whether offence, for
which convicted, of so serious nature as to significantly affect
performance of duties — `NOTE" to standing order permitting
discharge notwithstanding acquittal, having no legal validity
— Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9,
ss. 5, 7(1), 13(2), 21(1),(2) — Royal Canadian Mounted Police
Regulations, C.R.C., c. 1391, ss. 29(2), 30, 31, 67, 68, 74 —
Criminal Code, R.S.C. 1970, c. C-34, s. 294(b) (as am. by S.C.
1974-75-76, c. 93, s. 25) — Narcotic Control Act, R.S.C.
1970, c. N-1.
Jurisdiction — Federal Court — Appeal Division — RCMP
Commissioner ordering review of discharge decision — Force
member charged with criminal offence — Acquitted — Dis
charge for unsuitability due to involvement in commission of
offence — Cases holding "decision" for s. 28 purposes not to
be construed so as to constitute instrument of delay — S. 28
review of Commissioner's decision not causing delay — Far
more delay in determining member's suitability if Court fails
to accept jurisdiction — Applying Danmor Shoe Co. test,
Commissioner's decision made in exercise of powers conferred
by Act of Parliament — Commissioner bound by standing
order promulgated by him — Procedures therein, designed to
comply with natural justice and procedural fairness rules, not
deceptive windowdressing — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, ss. 2, 28 — Royal Canadian Mounted
Police Act, R.S.C. 1970, c. R-9, ss. 13(2), 21(2).
Shortly after the applicant, an RCMP Corporal, was charged
with shoplifting, he was served with a "Notice of Intent to
Recommend Discharge" on the ground of unsuitability. The
applicant was acquitted of the criminal charge. The Discharge
and Demotion Board found that the applicant had not engaged
in the commission of an offence and directed that he be
retained in the force. The Board of Review, however, allowed
an appeal and recommended the applicant's discharge. The
Corporal then appealed to the Commissioner who allowed the
appeal but ordered a review of the evidence by a newly
constituted Discharge and Demotion Board.
Administration Bulletin AM-53 outlines the procedures for
recommending discharge. Since a June, 1983 revision, it pur
ports to follow the Act as far as possible, and to be a Commis
sioner's standing order, notwithstanding that it is not in the
usual format, and is made pursuant to subsection 21(2) of the
Act. Paragraph 3.a.2. of the Bulletin provides that a member
may be recommended for discharge by reason of unsuitability if
the member is involved in the commission of an offence under
an enactment of the Parliament of Canada of so serious a
nature and in such circumstances as would significantly affect
the proper performance of his duties under the Act. A "NOTE"
indicates that any member may be recommended for discharge
whether or not he has been charged with an offence constitut
ing the ground of unsuitability or has been tried, acquitted,
convicted or sentenced by a court in respect of the offence.
The Corporal, by this section 28 application, seeks to have
set aside the Commissioner's decision to order a new review.
Held (Pratte J. dissenting), the application should be
allowed.
Per Urie J.: The procedures available to a member who has
been recommended for discharge and to his commanding offi
cer show that it is the Commissioner who must ultimately
accept or reject the recommendations made below. He is the
sole person authorized by subsection 13(2) of the Act to dismiss
or discharge a member before the expiration of his term of
engagement. To some extent, the appearance of proceeding in
accordance with the rules of natural justice or employing
procedural fairness (as outlined in Bulletin AM-53) is a façade.
If that is so, and if the Commissioner proceeds without regard
to legal errors made by the tribunals below, his decision cannot
stand.
In Willette v. The Commissioner of the Royal Canadian
Mounted Police, [1985] 1 F.C. 423; (1985), 56 N.R. 161
(C.A.) it was held that as the appeal to the Commissioner was
based on the record, his decision would be tainted by any error
in law in denying any right protected by the Charter or
Canadian Bill of Rights or at common law with respect to an
aspect of the hearing of the Discharge and Demotion Board.
The Commissioner's decision cannot stand because it was taint
ed by the fundamental legal error, discussed infra, made by the
Discharge and Demotion Board.
In Re Laroche and Beirsdorfer (1981), 131 D.L.R. (3d) 152
(F.C.A.), Le Dain J. stated that the provisions of Administra
tion Bulletin AM-53 were not standing orders. The situation
seems to have been rectified by the June 7, 1983 revision to the
Bulletin. Since Bulletin AM-53 appears to be in relation to
discipline, efficiency or the good government of the force, it
appears to be a valid exercise of the authority granted to the
Commissioner to make rules known as standing orders for the
"discipline ... administration and good government of the
force" by subsection 21(2) of the Act.
The Notice of Intent to Recommend Discharge stated that
the recommendation of discharge for unsuitability was based on
involvement in the commission of an offence under an enact
ment of the Parliament of Canada. By his acquittal, the
applicant was found not to have been involved in the commis
sion of an offence under the applicable statute of the Parlia
ment of Canada. This case is distinguishable from Laroche,
where the member admitted that he had been involved in the
commission of an offence. Here, the member having been found
not guilty by the only competent tribunal, the sole basis for the
alleged unsuitability has disappeared and the Commissioner's
authority to discharge on this alleged ground of unsuitability
was lost. He should, thus, have directed that the member be
retained. On the evidence, there was no basis for him to order a
new Discharge and Demotion Board.
There are two difficulties in reaching this conclusion. The
first is that, in the Laroche case, Le Damn J. held that the
Commissioner's authority to discharge on the ground of unsuit-
ability necessarily implied the right to consider whether the
conduct complained of was serious enough to constitute a
criminal offence. However, changes in the wording of para
graph 3.a.2. of Bulletin AM-53 since the Laroche decision
make it clear that the determination of whether an offence has
been committed is not the responsibility of the Commissioner.
His responsibility is to consider whether or not, when an
offence has been committed of which the member has been
found guilty, the offence was of so serious a nature and in such
circumstances as would significantly affect the proper perform
ance of the member's duties. The only way in which an offence
under a federal statute can be said to have been committed is
when the appropriate court finds that it has.
The second difficulty arises from the "NOTE" to paragraph
3.a.2. The NOTE is more logically construed to be an explana
tion, interpretation or direction with regard to the scope of the
rule, and should not be regarded as part of the rule. It has no
legal validity. That the Commissioner did not make the NOTE
part of paragraph 3.a.2. is indicative that he did not intend it to
be part of paragraph 3.a.2. By reason of sections 29(2), 30 and
31 of the Regulations, when a member is suspended because
suspected of or charged with contravening an Act of the
Parliament of Canada, an acquittal clears the member who is
reinstated back to the date of suspension. However where the
more serious proceedings leading to discharge have been ini
tiated on the basis of a charge, prior to the trial of that charge,
the proceedings for discharge not only continue following the
acquittal, but if the NOTE governs, the acquittal is to be ignored
for purposes of determining whether the recommendation for
discharge is to be accepted. Such a result is anomalous and
unfair because the member's career, livelihood and reputation
are at stake.
Per Heald J.: This Court has jurisdiction to review the
impugned decision under section 28 of the Federal Court Act.
An important rationale for the judgments of this Court relating
to the construction of the word "decision" in section 28 is that
"decision" should not be construed in such a way as to enable it
to be utilized as an instrument of delay. A conclusion that the
Commissioner's decision is reviewable under section 28 cannot
be said to be a utilization of section 28 as an instrument of
delay. Rather, a failure to accept jurisdiction under section 28
will result in far more delay than if the Court decides that it
has jurisdiction. The instrument of delay factor is not deter-
minative of the issue herein. There is a distinction to be made
between the "myriad" of interlocutory orders referred to in the
case law, and the decision here at issue—namely, a decision
which may have the effect of removing the uncertainty which
has prevailed for such a lengthy period of time. The subject
decision is of the kind in respect of which the applicant is
entitled to know where he stands without further delay.
Section 28 refers to a decision of a "federal board, commis
sion or other tribunal", which is defined in section 2 as any
person exercising powers conferred by an Act of the Parliament
of Canada. Pursuant to the June 7, 1983 revision, Administra
tion Bulletin AM-53 was made a standing order. In In re
Anti-dumping Act and in re Danmor Shoe Co. Ltd., [1974] 1
F.C. 22 (C.A.), it was held that a decision that may be set aside
under section 28 must be a decision made in the exercise or
purported exercise of "jurisdiction or powers" conferred by an
Act of Parliament. Subsection 21(2) of the RCMP Act empow
ered the Commissioner to promulgate Bulletin AM-53 as a
standing order. The procedure followed in this case is author
ized by Bulletin AM-53. Paragraph 14.k.2.1. provides that if an
appeal from a decision of a Board of Review is made to the
Commissioner he may allow the appeal and order a new review
of the case by a Discharge and Demotion Board, as was done
here. In so deciding, the Commissioner was acting in the
exercise of powers conferred on him by an Act of Parliament,
namely the RCMP Act. The Danmor test is met and the Court
has jurisdiction to entertain the application.
As to the argument that the standing orders are not binding
on the Commissioner, in Danmor, it was held that once a
tribunal has exercised its powers expressly conferred by a
statute by a "decision", the matter is decided even against the
tribunal itself. The Commissioner, by the promulgation of
Bulletin AM-53 as a standing order, clearly intended to bind
himself by imposing a comprehensive code of procedures to be
followed for recommending discharges and demotions. That
code is designed to comply with the rules of natural justice and
procedural fairness. To conclude that the standing order was
not binding on the Commissioner would mean that the proce
dures set out therein were nothing but deceptive windowdress-
ing. The decision meets the tests set out in Danmor so as to vest
the Court with jurisdiction under section 28.
Although the applicant did not address the issue forming the
basis of Urie J.'s decision in exactly the same manner as that
employed by His Lordship, the factual basis for the decision
was before the Court at the hearing of the appeal. Most of the
issues discussed by Urie J. were fully argued at the hearing of
the appeal. All of the authorities relied on by Urie J. were
discussed at the hearing.
Per Pratte J. (dissenting): The application should be dis
missed on the ground that it is directed against a decision
which the Court has no authority to review under section 28.
The Commissioner's decision is distinguishable from those
relating to discharge of members of the force, which have been
held to be reviewable under section 28. The decision is a refusal
to follow a recommendation for discharge, and an order for
review by a new Discharge and Demotion Board. In Anheuser-
Busch, Inc. v. Carling O'Keefe Breweries of Canada Limited,
[1983] 2 F.C. 71; 69 C.P.R. (2d) 136 (C.A.), it was stated that
the Federal Court of Appeal has jurisdiction under section 28
to review only final orders. Whether made pursuant to a
standing order or not, the decision in question is not a final
decision from which "legal rights or obligations flow." The
power conferred on the Commissioner by subsection 21(2) is a
power to prescribe rules applicable to members of the force
other than the Commissioner. One does not order oneself to do
anything. It follows that the standing orders do not bind the
Commissioner. Nor can the Commissioner divest himself of the
responsibility imposed by subsection 13(2) of the Act to dis
charge or dismiss members of the force, other than officers, by
his standing orders. As the standing orders are not binding on
the Commissioner, they cannot render reviewable a decision
which, in the absence of the standing orders would not be
reviewable.
The applicant's argument, that the Commissioner ignored
certain provisions of his standing orders is rejected because the
Commissioner is not bound by his own standing orders.
Urie J.'s conclusion appears to be based on the view that the
Commissioner's power of dismissal is limited by his standing
orders and that those powers are limited by the terms of the
notice given to the applicant. As stated, the standing orders
cannot limit the Commissioner's statutory powers. There can be
no importance attached to the insufficiency of the notice given
to the applicant. As the applicant has not yet been discharged
from the force, and as according to the decision under attack,
the proceedings that might lead to his discharge must be
entirely recommenced, it is impossible to say that the applicant
has not been given sufficient notice.
CASES JUDICIALLY CONSIDERED
APPLIED:
Willette v. The Commissioner of the Royal Canadian
Mounted Police, [1985] 1 F.C. 423; (1985), 56 N.R. 161
(C.A.); AGIP S.p.A. v. Atomic Energy Control Board,
[1979] 1 F.C. 223 (C.A.); Anheuser-Busch, Inc. v. Car-
ling O'Keefe Breweries of Canada Limited, [1983] 2 F.C.
71; 69 C.P.R. (2d) 136 (C.A.); National Indian Brother
hood v. Juneau (No. 2), [1971] F.C. 73 (C.A.); In re
Anti-dumping Act and in re Danmor Shoe Co. Ltd.,
[1974] 1 F.C. 22 (C.A.).
DISTINGUISHED:
Re Laroche and Beirsdorfer (1981), 131 D.L.R. (3d) 152
(F.C.A.).
REFERRED TO:
McCleery v. The Queen, [1974] 2 F.C. 339 (C.A.);
Kedward v. The Queen, [1976] 1 F.C. 57 (C.A.); Danch
v. Nadon, [1978] 2 F.C. 484 (C.A.).
COUNSEL:
Barrie Chivers for applicant.
Brian Saunders for respondent.
SOLICITORS:
Wright, Chivers & Company, Edmonton, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J. (dissenting): I have read the reasons
for judgment prepared by my brother Urie. I do
not agree. In my opinion, this section 28 applica
tion should be dismissed.
My brother Urie specifies the nature of the
decision against which this section 28 application
is directed, relates the circumstances in which it
was rendered and indicates the various provisions
of the Royal Canadian Mounted Police Act,' the
Royal Canadian Mounted Police Regulations 2
and the Commissioner's standing orders under
which it was made. I need not repeat here what he
has already said.
Immediately before the hearing of this applica
tion, the respondent presented a motion to quash
the application on the ground that it was directed
against a decision which the Court had no author
ity to review under section 28 of the Federal Court
Act [R.S.C. 1970 (2nd Supp.), c. 10]. We dis
missed that motion and proceeded to hear the
section 28 application. I have now reached the
conclusion that we then made a wrong decision.
We should have granted the respondent's motion
to quash. In any event, we should now, in my
opinion, dismiss the section 28 application on the
ground that it is directed against a decision which
this Court has no authority to review under section
28 of the Federal Court Act.
The decisions of the Commissioner of the
RCMP relating to the discharge of members of the
force which were held by this Court to be review-
able under section 28 of the Federal Court Act
were decisions discharging members of the force.'
The decision here under attack is of a different
nature. It is, to put it simply, a decision by which
the Commissioner, first, refused to follow the
recommendation made to him by a Review Board
that the applicant should be discharged from the
force on the ground of unsuitability and, second,
ordered that the matter be reviewed by a new
Discharge and Demotion Board. In other words,
before deciding whether or not to discharge the
applicant, the Commissioner deemed it necessary
' R.S.C. 1970, c. R-9.
2 C.R.C., c. 1391.
3 McCleery v. The Queen, [1974] 2 F.C. 339 (C.A.); Danch
v. Nadon, [1978] 2 F.C. 484 (C.A.); Re Laroche and Beirs-
dorfer (1981), 131 D.L.R. (3d) 152 (F.C.A.); Willette v. The
Commissioner of the Royal Canadian Mounted Police, [1985]
1 F.C. 423; (1985), 56 N.R. 161 (C.A.).
to obtain further advice and information.
It is now well settled that all decisions made by
federal tribunals are not reviewable under section
28 of the Federal Court Act. The jurisprudence on
this subject was well summarized by my brother
Heald in Anheuser-Busch, Inc. v. Carling O'Keefe
Breweries of Canada Limited 4 when he wrote:
That jurisprudence is to the effect that the Federal Court of
Appeal has jurisdiction to review under section 28 only final
orders or decisions—that is—final in the sense that the decision
or order in issue is the one that the tribunal has been mandated
to make and is a decision from which legal rights or obligations
flow.
If the decision under attack had been made
before the date on which Administration Bulletin
AM-53 became a standing order, there would be
no doubt, in my view, that the decision could not
be reviewed under section 28. It would clearly be a
purely administrative decision from which no
"legal rights or obligations flow." Does the fact
that the Bulletin had become a standing order at
the time the impugned decision was made invali
date that conclusion? I do not think so. Whether
made pursuant to a standing order or not, the
decision here in question is not a final decision
from which "legal rights or obligations flow." This
becomes obvious when the nature and legal effect
of a standing order are considered.
The authority to make standing orders is con
ferred on the Commissioner by subsection 21(2) of
the Royal Canadian Mounted Police Act:
21....
(2) Subject to this Act and the regulations made under
subsection (1), the Commissioner may make rules, to be known
as standing orders, for the organization, training, discipline,
efficiency, administration and good government of the force.
In my opinion, the power that is conferred on the
Commissioner by subsection 21(2) is the power to
prescribe rules applicable to members of the force
other than the Commissioner. It was never con
templated by the subsection, as I read it, that the
4 [1983] 2 F.C. 71, at p. 75; 69 C.P.R. (2d) 136 (C.A.), at p.
140.
Commissioner could make rules applicable to him
self. One simply does not order oneself to do
anything. It follows that the standing orders, what
ever they say, do not bind the Commissioner who,
it seems to me, has as much authority to infringe
his own orders as to make them. Moreover, the
Commissioner certainly cannot, by his standing
orders, modify the Act. Under subsection 13(2) of
the Act, a member of the force other than an
officer "may be dismissed or discharged by the
Commissioner at any time before the expiration of
his term of engagement". The Commissioner is
thus given a power and vested with a responsibili
ty. He cannot, by his standing orders, rid himself
of that power, divest himself of that responsibility;
whatever be the terms of the standing orders, the
Commissioner remains the person who has the
power to discharge and dismiss members of the
force other than officers and continues to have the
duty to exercise that power in an enlightened and
fair manner. It follows that, in spite of any stand
ing order to the contrary, the Commissioner
always has the right, when he is seized with a
recommendation that a member of the force be
discharged, to make the decision that he considers
to be appropriate; more particularly, he always has
the right, if he deems it necessary or useful, to ask
for further information and advice.
In my view, therefore, the standing orders are
not binding on the Commissioner. For that reason,
they cannot render reviewable by this Court a
decision of the Commissioner which, in the
absence of the standing orders, would clearly not
be reviewable.
I would, therefore, dismiss the section 28
application on the ground that the decision under
attack is not reviewable under section 28 of the
Federal Court Act.
I must add that, even if the decision under
attack were reviewable, I would still dismiss the
application. Indeed, the only real ground of attack
raised by the applicant's counsel at the hearing
was that the Commissioner's decision was bad in
that he had, in making it, ignored certain provi
sions of his standing orders. I would reject that
argument for the reason that I have already given,
namely, that the Commissioner is not bound by his
own standing orders.
My brother Urie proposes to decide this case on
the basis of an argument that was not raised at the
hearing. In his view, the decision of the Commis
sioner should be set aside because, since the appli
cant's acquittal by the competent criminal court,
the Commissioner can no longer dismiss or dis
charge him for the reason mentioned in the
"Notice of Intent to Recommend Discharge" and
in paragraph 3.a.2. of Bulletin AM-53. Even if I
agreed with my brother's interpretation of para
graph 3.a.2. of the Bulletin (and I must confess
that I do not), I would still be unable to share his
conclusion. That conclusion appears to me to be
based on two possible views: first, that the Com
missioner's power of dismissal is limited by the
terms of his standing orders and, second, that
those powers are, in this case, limited by the terms
of the notice given to the applicant.
I have already said that, in my view, the stand
ing orders cannot limit the Commissioner's statu
tory powers. As to the alleged insufficiency of the
notice given to the applicant, I cannot attach any
importance to it. Even if the text of the notice
given to the applicant ought to be interpreted in
the manner suggested by my brother Urie, the fact
remains that, to the knowledge of the applicant,
the Commissioner certainly gave it a different
interpretation. As the applicant has not yet been
discharged from the force and as, according to the
decision under attack, the proceedings that might
lead to his discharge must be entirely recom
menced, I cannot understand how it can now be
said that the applicant has not been given ade
quate notice.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J.: I have had the advantage of reading
the reasons for judgment herein of my brothers
Pratte J. and Urie J. At the outset, I should say
that I agree with the reasons prepared by Urie J.
and with the result which he proposes.
With respect, I am unable to agree with the
reasons of Pratte J. or with his conclusion that the
section 28 application should be dismissed. The
purpose of these reasons is to articulate the bases
upon which I have so concluded.
As observed by Pratte J. the Court, after hear
ing argument on the respondent's preliminary
motion to quash the within section 28 application,
unanimously dismissed the preliminary motion.
That decision accords with the jurisprudence of
this Court. In the case of AGIP S.p.A. v. Atomic
Energy Control Board, [1979] 1 F.C. 223 (C.A.),
the Court held that a section 28 application should
not be quashed at a preliminary stage on a motion
to quash unless it is concluded that the ground of
attack is not fairly arguable—either on material
that is already before the Court or that is fore
shadowed thereby—that the impugned decision is
within section 28. For this reason, I must respect
fully disagree with the opinion expressed by my
brother Pratte J. that the Court was wrong in
declining to grant the respondent's motion to
quash. Furthermore, after hearing the full appeal,
I have the view that this Court has jurisdiction to
review the decision herein impugned under section
28 of the Federal Court Act.
In this case, the Commanding Officer of the
Division of the Royal Canadian Mounted Police in
which the applicant was serving, proceeded by way
of a "Notice of Intent to Recommend Discharge"
against the applicant. The applicant requested a
review of that recommendation. Accordingly, a
Discharge and Demotion Board was convened by
Inspector J. D. Maxwell. After hearings, the Dis
charge and Demotion Board directed that the
applicant be retained in the RCMP at his present
rank. Thereupon, his Commanding Officer
appealed that decision to a Board of Review. The
Board of Review allowed the appeal and recom
mended to the Commissioner that the applicant
should be discharged from the force on the ground
of unsuitability. The applicant appealed that deci
sion to the respondent Commissioner. The Com
missioner in his decision on that appeal refused to
follow the discharge recommendation made to him
by the Board of Review and ordered that the
matter be reviewed by a newly constituted Dis
charge and Demotion Board.
My brother Pratte J., in discussing this issue,
referred to a passage from my judgment in
Anheuser-Busch, Inc. v. Carding O'Keefe
Breweries of Canada Limited, [1983] 2 F.C. 71, at
page 75; 69 C.P.R. (2d) 136 (C.A.), at page 140.
In addition to the passage quoted by Mr. Justice
Pratte, I said further at page 76 F.C.; at page 140
of the N.R. report, after reviewing this Court's
jurisprudence:
A perusal of the section 28 cases makes it clear that an
important consideration in those decisions was the undesirable
consequences which could conceivably flow were the Court to
allow section 28 applications in respect of the innumerable
interlocutory matters arising in the course of a proceeding.
In support of this view, I cited a passage from the
reasons of Chief Justice Jackett in the case of
National Indian Brotherhood v. Juneau (No. 2),
[1971] F.C. 73 (C.A.), at page 78 where, in
respect of such innumerable interlocutory orders,
he said:
If, however, an interested party has a right to come to this
Court under s. 28 on the occasion of every such decision, it
would seem that an instrument for delay and frustration has
been put in the hands of parties who are reluctant to have a
tribunal exercise its jurisdiction, which is quite inconsistent
with the spirit of s. 28(5).
Accordingly, it seems to me that an important
rationale for the numerous judgments of this
Court relating to the proper construction to be
given to the word "decision" as used in section 28
is that "decision" should not be construed in such
a way as to enable it to be utilized as an instru
ment of delay, particularly in light of the require
ment in subsection (5) of section 28 that the
applications under that section are to "be heard
and determined without delay and in a summary
way."
Having regard to that rationale and applying it
to the circumstances of this case, it seems clear
that a conclusion that the Commissioner's decision
herein impugned is reviewable under section 28
cannot, in any way, be said to be a utilization of
section 28 as an instrument of delay. If a section
28 review does not lie in respect of the Commis
sioner's decision, then that decision to remit the
matter to a new Discharge and Demotion Board
stands. The previously disciplinary proceedings
against the applicant began on April 27, 1983,
with the Notice of Intent to Recommend Dis
charge and culminated on June 25, 1984, with the
Commissioner's decision which is sought to be
reviewed herein—a period of some 14 months.
During that entire period, the applicant's service
career as well as his personal and family life have
been under a cloud. Now, if the Commissioner's
decision is allowed to stand, he will continue to be
in that unfortunate and undesirable position for
possibly another 14 months or more. This means
that his period of jeopardy and of suspicion will
extend into the latter part of 1986. In other words,
for more than three years, his suitability as a
member of the RCMP will have been open to
serious question. Consequently, it is my view that,
in the circumstances of this case, the consequences
of this Court failing to accept jurisdiction under
section 28 will result in far more delay than if the
Court decides that it has jurisdiction under
section 28.
I hasten to observe, however, that "the instru
ment of delay", factor discussed supra, while
representing an important consideration in the
Court's previous jurisprudence on this issue,
cannot in any way be said to be determinative of
the issue being addressed herein. I have made
these comments because I see a clear distinction
between the "myriad" of interlocutory orders
referred to in the Court's jurisprudence (such as
evidentiary rulings in the course of a proceeding or
decisions granting or refusing adjournments in the
course of a proceeding—to mention two prominent
examples) and the decision here at issue—namely,
a decision which may have the effect of removing
the uncertainty which has prevailed for such a
lengthy period of time. In my view, quite apart
from any other consideration, subject decision is of
the kind in respect of which the applicant should
be entitled to know where he stands without any
further delay. However, notwithstanding persua
sive reasons for assuming section 28 jurisdiction in
a case of this kind, it is necessary to determine
whether, on a proper construction of the relevant
sections of the Federal Court Act, the Court would
be justified in assuming jurisdiction in the case at
bar. Section 28 refers to a "federal board, commis
sion or other tribunal". Section 2 of the Federal
Court Act defines "federal board, commission or
other tribunal". The relevant portion of that defi
nition reads:
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or purporting to
exercise jurisdiction or powers conferred by or under an Act
of the Parliament of Canada ... .
As observed by Mr. Justice Urie, subsection 21(2)
of the Royal Canadian Mounted Police Act,
R.S.C. 1970, c. R-9 empowers the respondent
Commissioner to "make rules, to be known as
standing orders, for the ... discipline ... adminis
tration and good government of the force." It
seems clear that Bulletin AM-53 prior to June 7,
1983, was not a standing order pursuant to subsec
tion 21(2). It seems equally clear that pursuant to
the revision of Bulletin AM-53 made on June 7,
1983, that Bulletin was made a standing order. I
say that because of paragraph 1.e. of the 1983
revision which reads as follows:
1.e. This bulletin shall be a Commissioner's Standing Order,
notwithstanding it is not the usual format for a CSO
and is made pursuant to the RCMP Act, Section 21(2).
No changes, amendments or revisions shall be made in
any manner whatsoever to this bulletin or its Appen
dixes without the express approval of the Commissioner.
I agree with Mr. Justice Urie when he said [at
page 351]: "Since neither subsection 21(2) of the
Act nor the Regulations impose on the Commis
sioner the requirement that standing orders follow
any particular form and since AM-53 appears to
be in relation to discipline, efficiency or the good
government of the force, it appears to be a valid
exercise of the authority granted to the Commis
sioner by subsection 21(2)." Accordingly, I think
that the comments of this Court in In re Anti-
dumping Act and in re Danmor Shoe Co. Ltd.,
[1974] 1 F.C. 22 (C.A.), at page 28 apply to the
instant case. Chief Justice Jackett said:
A decision that may be set aside under section 28(1) must,
therefore, be a decision made in the exercise or purported
exercise of "jurisdiction or powers" conferred by an Act of
Parliament. A decision of something that the statute expressly
gives such a tribunal "jurisdiction or powers" to decide is
clearly such a "decision". A decision in the purported exercise
of the "jurisdiction or powers" expressly conferred by the
statute is equally clearly within the ambit of section 28(1).
Applying the Danmor test, can it be said that
the Commissioner's "decision" herein is a decision
which he has been expressly mandated to make? I
conclude that this question must be answered affir
matively. As noted supra, subsection 21(2) of the
Royal Canadian Mounted Police Act empowered
the Commissioner to promulgate Bulletin AM-53
as a standing order. The procedure followed in this
case is authorized and prescribed by AM-53. Para
graph 14 thereof details the procedure to be fol
lowed where there is an appeal to the Commission
er from a decision of a Board of Review.
Subparagraph k. of paragraph 14 covers the cir
cumstances in this case. It reads:
14....
k. If the appeal is made by the CO, the Commissioner shall
dispose of it by:
1. dismissing the appeal and confirming the decision
being appealed; or
2. allowing the appeal and:
1. ordering a new review of the case by a Discharge
and Demotion Board;
2. directing that the member be discharged from the
Force; or
3. if the CO is appealing a recommendation that the
member be retained in the Force at his present rank
or level, directing that the member be demoted.
Subparagraph m. of paragraph 14 is relevant as
well. It reads:
14....
m. If the Commissioner orders a new review of a case by a
Discharge and Demotion Board, the applicable
D/Commr. or the DOP, as the case may be, shall
convene a Discharge and Demotion Board and the new
review shall be conducted in accordance with these
procedures as if it were the first review of the case.
In this case, the Commissioner, pursuant to the
provisions of paragraph 14.k.2.1., allowed the
appeal and ordered a new review of the case by a
newly constituted Discharge and Demotion Board.
Accordingly, I think it clear that in so deciding the
Commissioner was acting in the exercise of powers
conferred on him by an Act of Parliament,
namely, the Royal Canadian Mounted Police Act.
On this basis, the Danmor test is clearly met and
this Court has jurisdiction to entertain this section
28 application.
My brother Pratte also expressed the view that
the standing orders here in issue are not binding on
the Commissioner. I do not share that view. Chief
Justice Jackett in the Danmor case supra said, also
at page 28 of the report, that a decision in the
purported exercise of powers expressly conferred
by a statute "has the legal effect of settling the
matter or it purports to have such legal effect.
Once a tribunal has exercised its `jurisdiction or
powers' in a particular case by a `decision' the
matter is decided even against the tribunal itself.
(Unless, of course, it has express or implied powers
to undo what it has done, which would be an
additional jurisdiction.)"
In my opinion, the Commissioner, by the pro
mulgation of Bulletin AM-53, as a standing order,
clearly intended to bind himself by imposing a
comprehensive code of procedures to be followed
for recommending discharges and demotions. That
code is obviously designed to comply with the rules
of natural justice and procedural fairness. To con
clude that Standing Order AM-53 is not binding
on the Commissioner in these circumstances would
produce the result that the procedures set out
therein are nothing but a sham and an illusion or,
put another way, deceptive windowdressing. I am
certain that the Commissioner did not intend such
a result. I am equally certain that he intended, by
such a procedure, to employ the fact-finding facili
ty of the Discharge and Demotion Board as well as
the review facility of the Board of Review to assist
him in discharging his responsibility under subsec
tion 13(2) of the Act with respect to the dismissal
of members of the force other than officers.
Accordingly, in my view, the "decision" made by
him in this case, pursuant to paragraph 14.k.2.1.
of Standing Order AM-53, meets the tests set out
in the Danmor case supra so as to vest this Court
with jurisdiction under section 28.
The only other matter in respect of which I
would like to comment relates to the view held by
Mr. Justice Pratte to the effect that the basis of
Mr. Justice Urie's decision was not raised at the
hearing of the appeal. I agree that it is accurate to
observe that counsel for the applicant did not
address this issue in exactly the same manner as
that employed by my brother Urie in his reasons
for judgment. However, the applicant, in his
memorandum of argument, recited in paragraph 1
thereof that the applicant had been charged with
shoplifting, had been tried on that charge before a
Judge of the Provincial Court of Alberta and
found not guilty. In his memorandum, the
respondent accepted the applicant's statement of
facts "as being substantially correct." According
ly, the factual basis for the rationale of the deci
sion of Mr. Justice Urie was before the Court at
the hearing of the appeal. Likewise, in paragraph
20 of his memorandum, counsel for the applicant
submitted "that there was no evidence adduced at
the hearing of the Discharge and Demotion Board
upon which the hearing officer could have reason
ably concluded that the applicant was involved in
the commission of an offence rendering him
unsuitable, and that the decision of the hearing
officer was correct in fact and law." Since the
transcript and decision on the Provincial Court
proceedings were before the Discharge and Demo
tion Board, the submission referred to in para
graph 20 supra is wide enough to include the
rationale for Mr. Justice Urie's decision. It is true
that applicant's counsel did not develop his argu
ment in such a fashion as to encompass all of that
rationale. However, it is also true that most of the
issues discussed by Mr. Justice Urie were fully
argued at the hearing of the appeal. For example,
the effect and significance of the "NOTE" to para
graph 3.a.2. of Bulletin AM-53, which is discussed
in some detail by Mr. Justice Urie, was raised by
members of the Court on the hearing and a discus
sion ensued with counsel for the respondent. Addi
tionally, all of the authorities relied on by my
brother Urie were discussed at the hearing. In
short, this is not a case where either new facts or
new jurisprudence were discovered between the
hearing of the appeal and the delivery of judg
ment. It is not, in my view, a situation which
would necessitate the Court calling for further
argument by counsel.
For the above reasons and for those contained in
the reasons for judgment of Mr. Justice Urie, I
would dispose of this application in the manner
proposed by him.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: This section 28 application is the latest
in a series of unrelated cases' heard by this Court
during the last seven or eight years concerned with
the discharge, usually for unsuitability, of mem
bers of the Royal Canadian Mounted Police
("RCMP") by the Commissioner of the RCMP,
the respondent herein.
In this application, Cpl. Lutes, who has been a
member of the RCMP for over 16 years, seeks to
set aside that portion of the decision of the
respondent upholding a decision of a Board of
Review which recommended his discharge on the
ground of unsuitability and, as well, the decision of
the respondent to order a new review of the case
by a newly constituted Discharge and Demotion
Board.
Briefly stated, the facts are these. On March 9,
1983, the applicant was charged with shoplifting.
On April 27, 1983, the Commanding Officer of
"K" Division of the RCMP, under whose com
mand the applicant came, caused to be served on
the applicant a "Notice of Intent to Recommend
Discharge" which was dated April 26, 1983. On
June 15, 1983, after a trial, His Honour Judge
McLean of the Provincial Court of Alberta found
the applicant not guilty of the offence with which
he was charged and acquitted him. As permitted
by the RCMP standing orders, the applicant
requested a review of the recommendations for
discharge as a result of which a Discharge and
Demotion Board was convened by Inspector J. D.
Maxwell on November 1, 1983.
5 See: McCleery v. The Queen, [1974] 2 F.C. 339 (C.A.);
Kedward v. The Queen, [1976] 1 F.C. 57 (C.A.); Danch v.
Nadon, [1978] 2 F.C. 484 (C.A.); Re Laroche and Beirsdorfer
(1981), 131 D.L.R. (3d) 152 (F.C.A.); Willette v. The Com
missioner of the Royal Canadian Mounted Police, [1985] 1
F.C. 423; (1985), 56 N.R. 161 (C.A.).
On January 3, 1984 that Board rendered its
decision holding that the applicant had not
engaged in the commission of an offence since he
lacked the requisite intent and, as a consequence,
directed that he be retained in the RCMP at his
present rank.
On January 21, 1984 his Commanding Officer
appealed the decision of the Discharge and Demo
tion Board to a Board of Review. On March 14,
1984 that Board allowed the appeal in the follow
ing terms:
... after carefully reviewing the case the Board of Review
allows the appeal of the C.O. "K" Division on the ground that
the D. & D. Board erred in law by using a test which rejected
the documentary evidence of Blais over the sworn testimony of
Cpl. Lutes. In addition, it is our opinion that the D. & D.
Board erred by failing to properly consider all the facts, namely
the statements of Jansen, Fraser and Kercher, which not only
corroborates the statement of Blais, but provided additional
evidence to dispute Cp. Lutes' version of the event.
The applicant, as was his right, appealed this
decision to the respondent, who on June 25, 1984
held, in effect, that unless the Discharge and
Demotion Board adopted a test as to credibility
which constituted an error in law, the Board of
Review was not entitled to allow the Commanding
Officer's appeal on the issue of rejection of the
documentary evidence in favour of the viva voce
evidence of the applicant. He found no such error
and the appeal was allowed on that ground. How
ever, he went on to hold that there was a sufficient
basis on the record for the Board of Review to
conclude that the Discharge and Demotion Board
had erred by basing its decision "without regard
for the material before it." The Commissioner
then concluded that although the Board of Review
had jurisdiction to recommend that a member be
discharged where "the fundamental issue is rooted
in the testimony of witnesses, assessments respect
ing their credibility, weighing the evidence,
etc...." it required a re-evaluation of the evidence
by another Discharge and Demotion Board. He
thus ordered a review of the case by a newly
constituted Discharge and Demotion Board.
It is from that decision that this section 28
application is brought.
The applicant attacked the decision on several
grounds, but, as I see it, a threshold question arises
which should be dealt with before these grounds
need be examined.
To understand the various issues raised, includ
ing the preliminary one, the scheme of the Royal
Canadian Mounted Police Act, ("the Act")
R.S.C. 1970, c. R-9 and amendments thereto, the
Regulations enacted pursuant thereto and
Administration Bulletin AM-53, said to be a Com
missioner's Standing Order made pursuant to sub
section 21(2) of the RCMP Act, must first be
analyzed.
By section 5 of the Act, the Commissioner, who
is appointed by the Governor in Council, has,
under the direction of the Solicitor General, "the
control and management of the force and all mat
ters connected therewith." Subsection 7(1) pro
vides that the Commissioner "shall appoint the
members of the force other than officers, for per
manent or temporary duty." Subsection 13(2)
provides:
13....
(2) Unless appointed for temporary duty, every member
other than an officer shall upon appointment sign articles of
engagement for a term of service not exceeding five years, but
any such member may be dismissed or discharged by the
Commissioner at any time before the expiration of his term of
engagement. [Emphasis added.]
Subsection 21(1) of the Act empowers the Gov
ernor in Council to make regulations:
21. (1) ... for the organization, training, discipline, efficien
cy, administration and good government of the force and
generally for carrying the purposes and provisions of this Act
into effect.
For the purposes of the attacks on the decision
in this case the authority granted by subsection
21(2) is important.
21....
(2) Subject to this Act and the regulations made under
subsection (1), the Commissioner may make rules, to be known
as standing orders, for the organization, training, discipline,
efficiency, administration and good government of the force.
Regulations were enacted by the Governor in
Council known as the Royal Canadian Mounted
Police Regulations, C.R.C., c. 1391 ("the Regula
tions") of which sections 67, 68 and 74 are rele
vant in the discharge of a member of the force on
the ground of unsuitability:
67. A member, other than an officer, may be discharged
from the Force for any of the following reasons:
(a) invaliding;
(b) unsuitability;
(c) deceased;
(d) desertion;
(e) dismissal;
(/) order of the Minister due to the exigencies of service;
(g) change of status;
(h) age limit;
(i) completion of maximum period of service;
(j) resignation; or
(k) voluntary retirement.
68. Every member shall be advised immediately of any
recommendation that is made for his discharge from the Force.
74. The Commissioner may recommend the discharge of an
officer and may discharge a member other than an officer who
has proved to be unsuitable for duties in the Force.
Sections 29(2), 30 and 31 are also pertinent for
the determination of the issues in this application.
They read as follows:
29....
(2) The Commissioner or any commanding officer may
suspend from duty any member other than an officer suspected
of or charged with contravening an Act of the Parliament of
Canada or of a province or a service offence.
30. Every member suspended from duty shall, at the time of
his suspension, be informed in writing of the reasons for his
suspension.
31. At the conclusion of an investigation or a trial of a
member, the member, if exonerated or found not guilty, shall
be reinstated in the Force, such reinstatement to relate back to
the date of his suspension from duty and he shall be so
informed in writing.
On July 30, 1979 a bulletin was issued by the
Commissioner, known as Administration Bulletin
AM-53. While it may have been revised on more
than one occasion since it was issued, it is the
revision of June 7, 1983 which is applicable in this
case. It outlines the grounds upon which there may
be a recommendation for the discharge of a
member from the force by reason of unsuitability
and the procedures to be followed to effect it. The
ground of unsuitability invoked in this case was
that described in paragraph 3.a.2. of the Bulletin.
It reads as follows:
3. Grounds of Unsuitability
a. A member may be recommended for discharge under
Regulation 74 or for demotion on any one or more of the
following three grounds referred to as grounds of unsuita-
bility, namely:
2. Ground No. Two (See Appendix "B" Samples 2, 4 and
5). The member is involved in the commission of an
offence under an enactment of the Parliament of
Canada or the legislature of a province of so serious a
nature and in such circumstances as would significantly
affect the proper performance of his duties under the
Act.
NOTE: Any member may be recommended for discharge
or demotion in rank whether or not he has been charged
with an offence constituting the ground of unsuitability
or has been tried, acquitted, convicted or sentenced by a
court in respect of the offence.
Attention should be drawn to the reference to
"Samples 2, 4 and 5" and to the "NOTE" which
appear in the paragraph which shall be the subject
of comment later in these reasons. The instructions
in the following excerpts from paragraphs l.a. and
1.e. are also worthy of mention:
1. General
a. This bulletin outlines procedures for recommending dis
charge and demotion that will be effective 79-09-15. The
rules and procedures contained herein follow those con
tained in proposed amendments to the RCMP Act as far
as is possible. They apply to all members of the Force
including officers.
e. This bulletin shall be a Commissioner's Standing Order,
notwithstanding it is not the usual format for a CSO and is
made pursuant to the RCMP Act, Section 21(2) ....
In summary, the procedure laid down by Bulle
tin AM-53 is the following. A member who it has
been recommended should be discharged, must
have been served with a notice of the intention to
recommend his discharge, giving the ground and
the particulars thereof as well as a notification of
his right to request, within 14 days of service of
the Notice, to have his case reviewed by a Dis
charge and Demotion Board. He has a right to
examine the documentation upon which the
recommendation is based and, as well, his service,
personnel and discipline files. The Discharge and
Demotion Board is required to conduct a hearing
at which the member concerned is entitled to be
present and to be represented by a member of the
force and to adduce evidence and make representa
tions. Paragraph 12.q. of the Bulletin requires the
Board to decide whether each ground of unsuita-
bility relied on "is established by a fair and reason
able preponderance of credible evidence". The
Board's decision must include a statement as to its
findings of fact, the reasons for its decision and its
recommendation that the member either be dis
charged or demoted. If the ground of unsuitability
has not been established, the Board must direct
that the member be retained in the force. In the
case at bar, the Discharge and Demotion Board
found that the unsuitability had not been estab
lished and directed, that Cpl. Lutes be retained in
the force.
Paragraph 13 of the Bulletin permits a member
who is dissatisfied with the decision of a Discharge
and Demotion Board to appeal the decision of a
Board of Review on any ground. Clause b thereof
permits the Commanding Officer of the member
to appeal the decision on any of the following
grounds:
1. the board failed to observe a principle of natural justice;
2. the board either acted beyond or refused to exercise its
jurisdiction;
3. the board erred in law in making its decision; or
4. the board based its decision on an erroneous finding of fact
or without regard for the material before it.
The Board of Review considers the appeal on
the basis of a written record comprising the docu
mentation referred to in paragraph 13.g. It is
empowered either to dismiss the appeal, allow the
appeal on any of the bases set out in paragraph
13.h.2. in the case of an appeal by a member and
in paragraph 13.i. in the case of an appeal by the
Commanding Officer. In the case at bar the Board
of Review allowed the Commanding Officer's
appeal and recommended that Cpl. Lutes be dis
charged from the force.
Cpl. Lutes, the applicant herein, appealed to the
Commissioner as he was entitled to do by virtue of
paragraph 14.a. of the Bulletin. He is required to
consider the appeal on the basis of the written
record which was before the Board of Review and
upon the written submissions of the member and
those of the Commanding Officer in reply. The
Commissioner is required to dispose of the appeal
by dismissing it and confirming the recommenda
tions being appealed, allow it and order a new
review of the case by a Discharge and Demotion
Board (as was done here), or direct that the
member be retained or be demoted as the case
may be.
Paragraph 14.m. is the only other provision
pertinent in this appeal and it provides that if the
Commissioner orders a new review of a case, as
was done here, "the new review shall be conducted
in accordance with these procedures as if it were
the first review of the case. [Emphasis added.]"
Thus, it would appear that all of the foregoing
appeal procedures are again available after the
decision of the new Discharge and Demotion
Board has been rendered.
This rather lengthy review of the procedures
available both to a member who has been recom
mended for discharge and to his commanding offi
cer where that recommendation has not been
upheld, was necessary not only to understand the
protective mechanisms available to a member
when his livelihood is threatened by the spectre of
discharge but to show that, in the final analysis, it
is the Commissioner who must ultimately accept
or reject the recommendations which have been
made by any of the three tribunals below him. He
is the sole person authorized by subsection 13(2)
of the Act to dismiss or discharge a member before
the expiration of his term of engagement. To some
extent, then, the appearance of proceeding in
accordance with the rules of natural justice or
employing procedural fairness as outlined in Bulle
tin AM-53 (assuming it to have the force of
standing orders) is a façade. If that is so, and if the
Commissioner in reaching the decision that ulti
mately must, by the Act, be his alone, proceeds
without regard to legal errors made by any of the
three lower tribunals—the Commanding Officer,
the Discharge and Demotion Board or the Board
of Review—his decision cannot stand. It is my
opinion that it cannot stand in this case for the
reasons which I will now develop.
However, before doing so, it is useful, I think, to
refer to an excerpt from the unanimous reasons for
judgment of this Court, written by Stone J., in
Willette v. The Commissioner of the Royal
Canadian Mounted Police, [1985] 1 F.C. 423;
(1985), 56 N.R. 161 (C.A.), at page 428 F.C.;
page 170 N.R., reading as follows:
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.
Adopting this reasoning, the decision of the
Commissioner in this case cannot stand because,
as I see it, it was tainted by the fundamental legal
error made by the Discharge and Demotion Board
which will be disclosed in the following analysis of
the evidence and the applicable statutory provi
sions.
I refer again to subsection 21(2) of the Act,
supra. It empowers the Commissioner to "make
rules, to be known as standing orders, for the .. .
discipline ... administration and good government
of the force." In Re Laroche and Beirsdorfer,
supra, Le Dain J., at page 162 of the report,
expressed the opinion that the provisions of
Administration Bulletin AM -53 could not be held
to be standing orders purporting to have been
made pursuant to subsection 21(2) of the Act. He
said that:
I do not find it necessary, however, to deal with the nature
and effect of the provisions of Administration Bulletin AM-53
on this basis because in my opinion they cannot be held to be
standing orders purporting to have been made pursuant to s-s.
21(2) of the Act. The expression "standing order" is not used
with reference to any of the provisions of the bulletin, as it was
with reference to the provisions for appeal to the Commissioner
that were before the Court in McCleery and Danch. The
bulletin does not purport to make standing orders pursuant to
s-s. 21(2). On the contrary, it purports to provide procedures
for recommending discharge and demotion that will be in
accordance with proposed amendments to the Act that have not
yet been enacted. In the introductory paragraph of the bulletin
it is stated: "This bulletin outlines procedures for recommend
ing discharge and demotion that will be effective 79-09-15. The
rules and procedures contained herein follow those contained in
proposed amendments to the RCMP Act, as far as possible."
The bulletin does revoke certain provisions of the administra
tion manual respecting discharge and demotion, but these
provisions do not purport to be standing orders. They are rather
procedural directions or explanations the revocation of which
would not require an exercise of the authority conferred by s-s.
21(2). It must be kept in mind that according to the decision of
the majority in Martineau (No. 1) administrative directives and
guidelines of the kind contained in Administration Bulletin
AM-53 require no statutory authority for their adoption. It is
thus my conclusion that the provisions of the bulletin cannot be
relied on in determining whether the Commissioner's decision
was a decision required by law to be made on a judicial or
quasi-judicial basis within the meaning of s. 28 of the Federal
Court Act. [Emphasis added.]
That situation, however, seems now to have been
rectified by the revision to Bulletin AM-53 made
on June 7, 1983. As will be seen, paragraph l.a.
still refers to the fact that the "rules and proce
dures contained herein follow those contained in
proposed amendments to the RCMP Act as far as
is possible." Paragraph i.e. makes the Bulletin a
standing order and "is made pursuant to the
RCMP Act, Section 21(2)". It, thus, appears to
fill the gap noted by Mr. Justice Le Dain. Since
neither subsection 21(2) of the Act nor the Regu
lations impose on the Commissioner the require
ment that standing orders follow any particular
form and since AM-53 appears to be in relation to
discipline, efficiency or the good government of the
force, it appears to be a valid exercise of the
authority granted to the Commissioner by subsec
tion 21(2). The "NOTES" following various para
graphs of AM-53 may not be impressed with that
validity, as will be discussed later herein.
I turn first to the document which initiated the
discharge proceedings, namely, the Notice of
Intent to Recommend Discharge issued by the
applicant's Commanding Officer on April 26,
1983 which was served on the applicant on April
27, 1983. Because of its importance I quote it in
full hereunder.
ROYAL CANADIAN MOUNTED POLICE
NOTICE OF INTENT TO RECOMMEND DISCHARGE
Reg. No. 26404, Cpl. R.J. LUTES, take notice that I intend to
recommend your discharge from the Royal Canadian Mounted
Police pursuant to RCMP Regulation 74, on the following
ground of unsuitability, namely:
You were involved in the commission of an offence under an
Enactment of the Parliament of Canada of so serious a
nature and in such circumstances as would significantly
affect the proper performance of your duties under the
RCMP Act, thereby rendering yourself unsuitable to contin
ue service in the Force.
The particulars supporting the ground of unsuitability are as
follows:
On 83 MAR 05, at approximately 2:00 P.M., Mr. Eugene
Ernest BLAIS a floor walker from Invicta Security had
occasion to observe your actions while in the Woolco Depart
ment Store, St. Albert Centre, St. Albert, Alberta. At that
time you were noted to be pushing a Woolco shopping cart
with a shopping bag in the cart. You were observed to pick
up electrical supplies in one aisle, walk a few aisles away and
then deposit the merchandise into the shopping bag. You
were observed to do this on four separate occasions and then
to depart the Woolco Department Store without paying for
the items in the shopping bag. Your actions in this matter
constitute the offense of theft as defined in the Criminal
Code.
Attached hereto is a copy of the complete service investigation
pertaining to this matter, together with statements and copies
of all other relevant documentation in support of the ground of
unsuitability.
BE ADVISED that within 14 days from the date of service of this
notice, you may send a request in writing to your Commanding
Officer, for a review of your case by a Discharge and Demotion
Board in the official language of your choice.
FURTHER BE ADVISED that you and/or your representative may
attend the Discharge and Demotion Board hearing and make
oral or written representation.
FURTHER BE ADVISED that you, or your representative with
your written consent, may, within the 14 day period from the
date of service of this notice, examine documentation on your
Personnel Records to which you have right of access and you or
he may request the presentation of any further documentary
evidence, to which you have right of access, to the Board.
Copies of any requested material will be forwarded to you and
the Board.
FURTHER BE ADVISED that if you wish to call witnesses, you
must supply a list of the witnesses along with a brief account of
the testimony expected from each. Allowed member witnesses
will be directed to attend, however, you will be responsible for
notifying civilian witnesses. (Civilian witnesses are entitled to
those fees, allowances and expenses as provided for by Reg.
35).
FURTHER BE ADVISED that should you not request a review of
your case within the next 14 days, the recommendation will be
made to the Commissioner for his determination.
FURTHER BE ADVISED that if you do not desire a hearing and
do not wish to be discharged as unsuitable, you may exercise
your option to tender your resignation from the Force, but any
decision to resign is yours and you are not now, nor will you be,
pressured in any way to do so. Upon request you will be
informed of any entitlements under the RCMP Superannuation
Act.
DATED AT EDMONTON THIS 26 DAY OF APRIL 1983.
"D. A. WHYTE"
D. A. WHYTE, A/Commr.
Commanding "K" Division
In form, the document appears to comply with
the regulations and Bulletin AM-53. The ground
of unsuitability follows exactly the wording of
Ground No. 2 of paragraph 3.a.2., supra. For
purposes of this case, the vital words are "involved
in the commission of an offence under an Enact
ment of the Parliament of Canada ...." In this
case the offence with which the applicant was
charged, according to the copy of the Information
which is contained in the record, was theft of
"merchandise the property of F.W. Woolworth
Ltd., of a value not exceeding two hundred dollars,
contrary to the provisions of the Criminal Code."
The section of the Code [Criminal Code, R.S.C.
1970, c. C-34] under which he was charged,
according to telex from S/Sgt. M. Coulombe to the
Commanding Officer "K" Division dated March
17, 1983, was section 294(b) [as am. by S.C.
1974-75-76, c. 93, s. 25]. Having pleaded not
guilty to the offence, and having been tried, the
accused was, as noted earlier, acquitted by His
Honour Judge McLean of the Provincial Court of
Alberta on June 15, 1983. The applicant, there
fore, was found not to have been "involved in the
commission of an offence" under the applicable
statute of the Parliament of Canada, the Criminal
Code. And that is the sole ground upon which the
"Notice of Intent to Recommend Discharge" was
based. If there is any doubt that this is so, one
need only have regard to the last sentence of that
part of the Notice setting forth the particulars
supporting the ground of unsuitability which reads
as follows:
Your actions in this matter constitute the offence of theft as
defined in the Criminal Code. [Emphasis added.]
That the offence described was not committed
has been decided by the only court competent to
make such a finding, absent a successful appeal
from that Court's decision. There is no evidence in
the record that there was an appeal let alone a
successful one. The verdict of acquittal, therefore,
is final. The basis upon which the Discharge
recommendation was founded has disappeared. In
that respect, the case on its facts differs from those
present in the Laroche case where the member of
the force admitted that he had been involved in the
commission of the offence of using marijuana con
trary to the provisions of the Narcotics Control
Act [R.S.C. 1970, c. N-1] although he had never
been charged or convicted of the offence. That
being so and the Commissioner being authorized
to discharge on the ground of unsuitability, he had
the right to consider whether the conduct of the
member was of so serious a nature as would affect
the proper performance of the member's duties. In
this case, the member having been found by the
only competent tribunal to have been not guilty of
an offence, the basis for the alleged unsuitability
was not present and the authority of the Commis
sioner to discharge on this alleged ground of
unsuitability was lost. He should, thus, have
directed that the member be retained. On the
admitted evidence there was no basis for him to
order a new Discharge and Demotion Board.
In making this finding I am not unmindful of
two difficulties in justifying this conclusion.
First, in the Laroche case, Le Dain J. had this to
say at page 168 of the report, supra:
The applicant's second point is that only a Judge could have
constitutionally valid authority to determine whether there has
been the commission of a criminal offence. In my opinion this
contention, as applied to the nature of the issue before the
respondent, is without merit. The Commissioner has authority
to discharge on the ground of unsuitability. In making that
decision he has the right to consider whether the conduct
complained of is serious enough to constitute a criminal
offence. He is not determining criminal responsibility, nor is he
imposing criminal law consequences. He is considering and
characterizing the relative seriousness of conduct from the
point of view of unsuitability. That is an authority that is
necessarily implied in the authority to discharge on the ground
of unsuitability.
In distinguishing the situation which prevailed
when that comment was made, regard must be had
to the text of paragraph 3.a.2. as it read at the
time of the Laroche case and that in force when
the Commissioner decided this case: (supra, page
347)
The member is clearly involved in the commission of a criminal
offence of so serious a nature and in such circumstances as
would significantly affect the proper performance of his duties
under the Act.
NOTE: Any member may be recommended for discharge or
demotion in rank whether or not he has been charged with the
criminal offence constituting the ground of unsuitability or has
been tried, acquitted, convicted or sentenced by a court in
respect of the offence.
It will be noted that the word "clearly" preced
ing "involved" in the 1979 version has been
dropped. More importantly, following the word
"offence" in that version, the 1983 revision added
the words "under an enactment of the Parliament
of Canada or the legislature of a province". Those
two changes make it abundantly clear, in my view,
that the determination of whether an offence has
been committed or not is not the responsibility of
the Commissioner. His responsibility now is not
"to consider whether the conduct complained of is
serious enough to constitute a criminal offence." It
is to consider whether or not when an offence has
been committed of which the member has been
found guilty, the offence was of so serious a nature
and in such circumstances as would significantly
affect the proper performance of his duties. The
only way in which an offence under a federal
statute, such as the Criminal Code, can be said to
have been committed is when the appropriate
Court finds that it has. Without the words "under
an enactment of the Parliament of Canada ...." it
seems clear, as Le Dain J. held, that it was for the
Commissioner to decide whether the conduct com
plained of was serious enough to constitute a
criminal offence. The addition of those words
makes it clear to me, that the alleged offence will
have to be proved as required by the particular
enactment. If there has been no such proof to the
satisfaction of the competent tribunal there will
have been an acquittal of the person charged,
which means there was no "offence under an
enactment of the Parliament of Canada". The
underpinning for the discharge for unsuitability
thus falls.
The second difficulty in reaching the conclusion
to which I have earlier alluded, arises from the
"NOTE" to paragraph 3.a.2. of Bulletin AM-53,
supra. For the sake of convenience I repeat it:
NOTE: Any member may be recommended for discharge or
demotion in rank whether or not he has been charged with an
offence constituting the ground of unsuitability or has been
tried, acquitted, convicted or sentenced by a court in respect of
the offence.
As can be seen, on the plain meaning of the
NOTE, a member may be recommended for dis
charge notwithstanding that he may have been
inter alia, acquitted of the offence which led to the
initiation of the discharge proceedings. The first
question then is, does the "NOTE" form part of the
standing order? I think it fair to say that usually
when something of this nature appears in a docu
ment it would be viewed by the reader as explana
tory or directory to, or interpretive of, something
which preceded it. As noted earlier, however, para
graph 1.e. does not limit the scope of the Bulletin
as a standing order only to that portion thereof
which is substantive in nature as opposed to that
which appears to be explanatory, interpretive or
directory. It says "This Bulletin shall be a Com
missioner's Standing Order ...." But paragraph
l.a. refers to the "rules and procedures" contained
in the Bulletin. While it is arguable that the NOTE
to paragraph 3.a.2. is part of the rule, it is, in my
view, more logically construed to be an explana
tion, interpretation, or a direction with regard to
the scope of the rule. It thus should not be viewed,
as I see it, as part of the rule. If it was to have
been part the Commissioner could fairly easily
have made it so. That he did not is indicative that
he did not intend it to be part of paragraph 3.a.2.
Furthermore, I have difficulty in accepting that
the consequences flowing from a conclusion of law
(that is to say that an accused is not guilty of an
offence with which he is charged) can be changed
by edict of the Commissioner in the form of a note
to a standing order, bearing in mind that, in this
case, the sole stated ground for the recommenda
tion for discharge was the alleged unsuitability of
the person concerned because he had been involved
in the commission of an offence against the Crimi
nal Code—an offence of which he had been found
not guilty.
In summary, for all of the above reasons, I am
of the opinion that the NOTE is not part of para
graph 3.a.2. and, therefore, has no legal validity.
The directive therein that a member may be
recommended for discharge notwithstanding his
acquittal on the offence with which he was
charged, can thus have no effect on the interpreta
tion of paragraph 3.a.2. to which it is appended.
If I am wrong in holding this view, then an
anomalous situation arises by virtue of sections
29(2), 30 and 31 of the RCMP Regulations which
I have set out in full at page 346 hereof. They
relate to the suspension of a member from duty
when he is charged with contravening an Act of
the Parliament of Canada.
In this case, because of the criminal charge by
Notice of Suspension dated March 8, 1983, Cpl.
Lutes was suspended from the force. So far as I
have been able to ascertain from the record he was
not reinstated after his acquittal as required by
section 31 of the Regulations. But whether he was
or he was not, the Regulations appear to recognize
that an acquittal on a criminal charge clears an
accused and, as they should, restore the member to
the standing which he had prior to the charge
being laid, presumably subject to such other inter
nal disciplinary action by the force, if any, as may
be appropriate in the circumstances. However,
where the much more serious proceedings leading
to discharge have been initiated on the basis of the
charge prior to the trial of that charge, as here, the
proceedings for discharge not only continue follow
ing acquittal, but the acquittal, if the NOTE gov
erns, is to be ignored for purposes of determining
whether the recommendation for discharge is to be
accepted. That is the result which flows from the
NOTE to paragraph 3.a.2. being found to form part
of the paragraph. In my opinion, such a result is
not only anomalous but unfair because the mem
ber's career, livelihood and reputation are at stake.
For that reason alone I would resist the interpreta
tion which makes the NOTE a part of the para
graph unless no other interpretation is possible.
For the reasons I have given I think that it need
not be so construed.
The result, as I see it, is that the threshold
question in determining whether or not the Com
missioner must accept the recommendation for
discharge on the ground stated in the Notice of
Intent, namely, was the member "involved in the
commission of an offence under an enactment of
the Parliament of Canada", must, in this case, be
answered in the negative. That being so, rather
than making the Order under attack the Commis
sioner should have concluded that the ground of
unsuitability alleged in the Notice of Intent had
not been proved and disposed of the matter on that
basis.
As a consequence it is unnecessary to consider
the other issues raised in the application. I would
grant the application, set aside the decision of the
Commissioner dated June 25, 1984 and remit the
matter to him for disposition on the basis that the
ground of unsuitability upon which the Notice of
Intent to Recommend Discharge had been based
has not been proved.
Since preparing the foregoing reasons for judg
ment, I have had the advantage of reading the
reasons for judgment of my brother Heald and
since I regard them as being supplementary to and
amplifying of mine, I wholly agree with them.
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.