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Trumbley and Pugh v. Metropolitan Toronto Police, [1987] 2 S.C.R. 577

 

Gordon Trumbley and Rodney Pugh                                                Appellant (Applicant)

 

and

 

Robert Fleming, Jack Ackroyd, Jack Marks, The Metropolitan Toronto Police Force   Respondents (Respondents)

 

and

 

Metropolitan Toronto Police Association                                         Intervener (Intervener)

 

and

 

The Attorney General of Canada                                                     Intervener

 

The Attorney General for Ontario                                                    Intervener (Intervener)

 

The Attorney General of Quebec                                                     Intervener

 

The Attorney General for New Brunswick                                       Intervener

 

indexed as: trumbley and pugh v. metropolitan toronto police

 

File No.: 20081.

 

1987: March 4, 5, 6; 1987: November 19.

 


Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and La Forest JJ.

 

on appeal from the court of appeal for ontario

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Criminal and penal proceedings ‑‑ Right to an independent and impartial tribunal ‑‑ Police superintendent conducting hearing of officer charged with major service offences ‑‑ Whether or not s. 11  of Charter  applicable in circumstances ‑‑ If so, whether or not proceedings inconsistent with s. 11  ‑‑ If inconsistent, whether or not regulations justifiable under s. 1  ‑‑ Canadian Charter of Rights and Freedoms , s. 11 (d) ‑‑ Regulation 791, R.R.O. 1980, Code of Offences, s. 1 (a)(i).

 

                   Constables Trumbley and Pugh were charged with a major service offence and conduct of hearing was designated to a staff inspector. Application for judicial review, with respect to certain procedural and evidentiary ruling, was made to the Divisional Court and dismissed. The Court held, without deciding the issue of the applicability of s. 11  of the Charter  to police disciplinary proceedings, that there was no breach of s. 11 (d) and that the police disciplinary tribunal did not lack independence and impartiality. The Court of Appeal upheld that decision. The constitutional questions before the Court queried (1) whether s. 11 (d) of the Charter  applied to police disciplinary proceedings under the Code of Offences and if so (2) whether or not the Code of Offences was inconsistent with the Charter , and if inconsistent, whether the regulation was justifiable under s. 1  of the Charter .

 

                   Held: The appeal should be dismissed; the first constitutional question should be answered in the negative.

 

                   For the reasons given in R. v. Wigglesworth, [1987] 2 S.C.R. 541, s. 11  does not apply to police disciplinary proceedings under Regulation 791, R.R.O. 1980. The disciplinary proceedings in this case were neither criminal in nature nor did they involve penal consequences. Unlike Wigglesworth, the appellant was not subject to the possibility of imprisonment under the Police Act.

 

Cases Cited

 

                   Followed: Trimm v. Durham Regional Police, [1987] 2 S.C.R. 582; R. v. Wigglesworth, [1987] 2 S.C.R. 541; Burnham v. Metropolitan Toronto Police, [1987] 2 S.C.R. 572.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , s. 11 (d).

 

Police Act, R.S.O. 1980, c. 381, s. 74(1).

 

Regulation 791, R.R.O. 1980, Code of Offences, s. 1 (a)(i).

 

                   APPEAL from a judgment of the Ontario Court of Appeal (1986), 55 O.R. (2d) 570, 29 D.L.R. (4th) 557, 15 O.A.C. 279, dismissing an appeal from a judgment of the Ontario Divisional Court (1984), 5 O.A.C. 368, dismissing an application for judicial review. Appeal dismissed; the first constitutional question should be answered in the negative.

 

                   E. G. Spong and D. A. Quirt, for the appellant.

 

                   R. M. Parker, Q.C., and M. S. Watson, for the respondents.

 

                   Julius Isaac, Q.C., for the intervener the Attorney General of Canada.

 

                   Dennis W. Brown, Q.C., and Michael W. Bader, for the intervener the Attorney General for Ontario.

 

                   Yves de Montigny and Françoise Saint‑Martin, for the intervener the Attorney General of Quebec.

 

                   Grant Garneau, for the intervener the Attorney General for New Brunswick.

 

                   The judgment of the Court was delivered by

 

1.                Wilson J.‑‑Constables Trumbley and Pugh were at all material times members of the Metropolitan Toronto Police Force. Each was charged with "discreditable conduct" under s. 1(a)(i) of the Code of Offences, Reg. 791, R.R.O. 1980 (Schedule). The particulars include allegations that they had sexual intercourse with a named woman in a "scout car". The offence was designated as a major offence. John W. Ackroyd, the Chief of Police, designated Superintendent Robert Fleming to hold the hearing. Staff Inspector John Addison was designated by the Chief of Police under s. 13 of the regulation to "have conduct of the hearing".

 

2.                The two constables applied to the Divisional Court for judicial review of certain procedural and evidential rulings made by Superintendent Fleming during the hearing. The Divisional Court ruled against the applicants on each of their submissions and dismissed their application. The Court held, without deciding the issue of the applicability of s. 11  to police disciplinary proceedings, that there was no breach of s. 11 (d) of the Charter . The police disciplinary tribunal did not lack independence and impartiality.

 

3.                The appeal to the Ontario Court of Appeal was dismissed: (1986), 55 O.R. (2d) 570. Morden J.A. for the Court examined the wording of s. 11  and noted that it is replete with criminal law terminology. He also examined the legislative history of s. 11 , the marginal note to s. 11  and the authorities on the issue. He concluded (at p. 583) that " `offence' means an offence which is prosecuted in a criminal or penal proceeding". At page 589, he stated:

 

                   In my view, a Police Act discipline proceeding is not a criminal or penal proceeding within the purview of s. 11 . The most serious consequence that can befall a police officer in such proceedings is the loss of his or her position and, while I do not minimize the seriousness of this consequence, it is a civil consequence and not punishment of a criminal nature. A police discipline matter is a purely administrative internal process. Its most serious possible consequence makes it analogous to a discipline matter in ordinary employer‑employee relationships, even though the procedure governing it is clearly more formal. The basic object of dismissing an employee is not to punish him or her in the usual sense of this word (to deter or reform or, possibly, to exact some form of modern retribution) but rather, to rid the employer of the burden of an employee who has shown that he or she is not fit to remain an employee.

 

Leave to Appeal was granted by this Court on November 27, 1986.

 

4.                The following constitutional questions were stated by this Court:

 

1. Does section 11 (d) of the Canadian Charter of Rights and Freedoms  (hereinafter referred to as the "Charter ") apply to police disciplinary proceedings under Regulation 791, R.R.O. 1980 made under s. 74(1) of the Police Act, R.S.O. 1980, c. 381 as amended?

 

2. If section 11 (d) of the Charter  does apply to these proceedings, is Regulation 791, R.R.O. 1980 inconsis‑ tent with it, and, if so, can the Regulation be justified under s. 1  of the Charter ?

 

5.                The applicable statutory provisions have been set out in the related case of Trimm v. Durham Regional Police, [1987] 2 S.C.R. 582. For the reasons given in  R. v. Wigglesworth, [1987] 2 S.C.R. 541, s. 11  does not apply to police disciplinary proceedings under Regulation 791, R.R.O. 1980. The disciplinary proceedings in this case, which are identical to those employed in the related cases of Trimm v. Durham Regional Police and Burnham v. Metropolitan Toronto Police, [1987] 2 S.C.R. 572, are neither criminal in nature nor do they involve penal consequences. Unlike Wigglesworth, the appellant is not subject to the possibility of imprisonment under the Police Act, R.S.O. 1980, c. 381. I would therefore answer the first constitutional question in the negative. Having regard to my answer to question 1 it is unnecessary to consider question 2.

 

6.                I would dismiss the appeal.

 

                   Appeal dismissed; the first constitutional question should be answered in the negative.

 

                   Solicitors for the appellant Rodney Pugh: Mills & Mills, Toronto.

 

                   Solicitor for the respondents: George H. Rust‑D'Eye, Toronto.

 

                   Solicitor for the intervener the Attorney General of Canada: The Attorney General of Canada, Ottawa.

 

                   Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.

 

                   Solicitor for the intervener the Attorney General of Quebec: The Attorney General of Quebec, Ste‑Foy.

 

                   Solicitor for the intervener the Attorney General for New Brunswick: The Attorney General for New Brunswick, Fredericton

 

 

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