Trimm v. Durham Regional Police, [1987] 2 S.C.R. 582
Jerry Trimm Appellant (Applicant)
and
The Chief of Police for the Durham Regional Police Force, the Designated Presiding Officer, Deputy Chief Gerald Robinson of the Durham Regional Police Force and the Board of Commissioners of Police for the Regional Municipality of Durham Respondents(Respondents)
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: trimm v. durham regional police
File No.: 20090.
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, ss. 3, 5(11), 6, 13, 16(4), (9), (15), 19(1), 20(2), (3), 24, Code of Offences.
Appellant was charged with two major service offences and appeared before the Deputy Chief of Police for trial. His submission that the manner of proceeding with these two charges was not in accordance with his rights under s. 11(d) of the Charter and in particular with his right to a hearing by an independent and impartial tribunal was dismissed. The Divisional Court dismissed an application for judicial review and the Court of Appeal dismissed an appeal from that judgment. The constitutional questions before this Court queried (1) whether s. 11(d) of the Charter applied to police disciplinary proceedings under Regulation 791, R.R.O. 1980, and if so, (2) whether or not that regulation was inconsistent with the Charter, and if so, whether it 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: R. v. Wigglesworth, [1987] 2 S.C.R. 541; Burnham v. Metropolitan Toronto Police, [1987] 2 S.C.R. 572; Trumbley and Pugh v. Metropolitan Toronto Police, [1987] 2 S.C.R. 577; referred to: Colledge v. Niagara Regional Police Commission (1983), 40 O.R. (2d) 340.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 11(d).
Police Act, R.S.O. 1980, c. 381, s. 74(1)(a).
Regulation 791, R.R.O. 1980, ss. 3, 5(11), 6, 13, 16(4), (9), (15), 19(1), 20(2), (3), 24, Code of Offences, s. 1.
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 dismissing an application for judicial review and for an order of prohibition with respect to the hearing of major police service offences by the Deputy Chief of Police. Appeal dismissed; the first constitutional question should be answered in the negative.
Aleksandr G. Bolotenko, for the appellant.
David J. D. Sims, Q.C., Alan J. McMackin and Mario Bouchard, 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.‑‑The appellant is a member of the Durham Regional Police Force. On January 4, 1983 the appellant was served with a charge sheet pursuant to the Police Act, R.S.O. 1980, c. 381, by the Durham Regional Police Force setting out a charge of neglect of duty for leaving his assigned patrol area without permission contrary to s. 1(c)(iii) of the Code of Offences, Reg. 791, R.R.O. 1980. On the same day the appellant was served with another charge sheet setting out a charge of insubordination by disobeying a lawful order contrary to s. 1(b)(ii) of the Code in refusing to walk his beat after being ordered to do so. Both of these offences were designated as major offences. In accordance with the charge sheets the appellant appeared before Deputy Chief of Police Gerald Robinson on January 19, 1983 at which time the proceedings were adjourned until February 11, 1983. On that date the appellant appeared before Deputy Chief Robinson and a trial date was set. On April 15, 1983, the date set for trial, it was submitted by the appellant's counsel that the manner of proceeding with these two charges against the appellant was not in accordance with his rights under s. 11(d) of the Charter and, in particular, his right to a hearing by an independent and impartial tribunal. This submission was rejected. The appellant then applied to the Divisional Court for judicial review, seeking an order prohibiting the presiding officer from conducting the hearing. This application was dismissed without reasons on October 15, 1984.
2. The Court of Appeal for Ontario (per Brooke, Morden and Robins, JJ.A.) dismissed the appeal on July 2, 1986: (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''. He stated at p. 589:
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.
3. The following constitutional questions were stated:
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?
4. It will be helpful to describe the nature of the disciplinary proceedings under the Police Act, R.S.O. 1980, c. 381, and the Regulations enacted thereunder, in particular Regulation 791, R.R.O. 1980. Section 74(1)(a) of the Act empowers the Lieutenant‑Governor in Council to make regulations "for the government of police forces and governing the conduct, duties, suspension and dismissal of members of police forces". Regulation 791, entitled "General‑‑Discipline", was enacted pursuant to this power. Section 3 of that Regulation sets out which officers of the Force may exercise the duties of the Chief of Police in the hearing and disposition of charges against members of the Force. Section 6 provides for such an officer (a "designated officer") to consider allegations made in a complaint against a member of the Force and that officer may then sign a charge sheet. The charge sheet must specify whether the particular offence alleged is a major or minor offence (s. 5(11)). The various offences are set out in s. 1 of the Schedule to the Regulation which reads (where relevant) as follows:
1. Any chief of police, other police officer or constable commits an offence against discipline if he is guilty of,
(a) Discreditable Conduct, that is to say, if he,
(i) acts in a disorderly manner, or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the police force,
(ii) is guilty of oppressive or tyrannical conduct towards an inferior in rank,
...
(iv) wilfully or negligently makes any false complaint or statement against any member of a police force,
...
(vii) is guilty of an indictable offence or an offence punishable upon summary conviction under the Criminal Code (Canada), or
...
(b) Insubordination, that is to say, if he,
...
(ii) without lawful excuse, disobeys, omits or neglects to carry out any lawful order;
(c) Neglect of Duty, that is to say, if he,
(i) without lawful excuse, neglects or omits promptly and diligently to perform a duty as a member of the police force,
...
(iii) fails to work in accordance with orders, or leaves an area, detachment, detail or other place of duty, without due permission or sufficient cause,
...
(xi) is improperly dressed, dirty or untidy in person, clothing or equipment while on duty;
(d) Deceit, that is to say, if he,
(i) knowingly makes or signs a false statement in an official document or book,
...
(e) Breach of Confidence, that is to say, if he,
(i) divulges any matter which it is his duty to keep secret,
...
(iii) without proper authority communicates to the public press or to any unauthorized person any matter connected with the police force,
...
(v) makes any anonymous communication to the chief of police or superior officer or authority,
...
(f) Corrupt Practice, that is to say, if he,
(i) takes a bribe,
(ii) fails to account for or to make a prompt, true return of money or property received in an official capacity,
...
(g) Unlawful or Unnecessary Exercise of Authority, that is to say, if he,
(i) without good and sufficient cause makes an unlawful or unnecessary arrest,
...
(iii) is uncivil to a member of the public;
(h) Damage to Clothing or Equipment, that is to say, if he,
...
(ii) fails to report waste, loss or damage however caused;
(i) Consuming Intoxicating Liquor in a Manner Prejudicial to Duty, that is to say, if he,
(i) while on duty is unfit for duty through drinking intoxicating liquor, or
...
(j) Lending Money to a Superior; or
(k) Borrowing Money from or Accepting a Present from any Inferior in Rank.
Particular aspects of the "trial" procedure are set out in s. 13:
13.‑‑(1) A chief of police may designate a counsel, constable or other police officer who shall have conduct of the hearing against the person charged and, in the conduct of the hearing, the person so designated may,
(a) examine and cross‑examine witnesses;
(b) sum up the evidence in support of the charge; and
(c)before the final verdict is rendered, at the direction of or with the consent of the chief of police, withdraw the charge.
(2) The constable or other police officer designated under subsection (1) shall be of equal rank to or higher rank than the person charged.
(3) The person charged is entitled to make his full answer and defence to the charge and, for such purpose, may examine and cross‑examine witnesses and make representations on his behalf, either personally or by his counsel or agent.
The consequences of a finding of guilt in respect of minor and major offences are set out in ss. 16 and 20. The relevant subsections provide as follows:
16.‑‑ ...
(4) A person found guilty of a minor offence is liable to,
(a) an admonition; or
(b) forfeiture of leave of days off not exceeding five days; or
(c) forfeiture of pay not exceeding three days pay.
20.‑‑ ...
(2) A person found guilty of a major offence is liable to,
(a) dismissal; or
(b) be required to resign, and in default of resigning within seven days, to be summarily dismissed from the force; or
(c) reduction in rank or gradation of rank; or
(d) forfeiture of leave or days off not exceeding twenty days; or
(e) forfeiture of pay not exceeding five days pay; or
(f) a reprimand, which may be imposed in lieu of or in addition to any other punishment imposed.
Persons found guilty of major and minor offences may appeal to the Board of Commissioners of Police or, where there is no such board, to a committee of the municipal council and from the decisions of those bodies to the Ontario Police Commission: see ss. 16(9), (15), 19(1), 20(3) and 24. It is apparent from these provisions that the police force both charges and tries the person charged. It is this aspect of the process which the appellant attacks under s. 11(d) of the Charter. He submits that the Chief of Police or his designated officer is not "an independent and impartial tribunal" within the meaning of the section.
5. For the reasons indicated 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 in Burnham v. Metropolitan Toronto Police, [1987] 2 S.C.R. 572, and Trumbley and Pugh v. Metropolitan Toronto Police, [1987] 2 S.C.R. 577, are neither criminal in nature nor do they involve penal consequences. As was stated by Eberle J. in Colledge v. Niagara Regional Police Commission (1983), 40 O.R. (2d) 340, at p. 342 (Div. Ct.):
The principal aspects of the proceedings at bar fall entirely within the ambit of internal disciplinary proceedings inside the police force. The duty sought to be enforced in the present proceeding is a duty which arises directly under the code of police conduct laid down in the Police Act. The matters involved in the proceedings are accordingly matters essentially of a private nature between the officer and his superiors.
Unlike Wigglesworth, the appellant is not subject to the possibility of imprisonment under the Police Act. There are in this case no "true penal consequences". I would therefore answer the first constitutional question in the negative. Having regard to my answer to question 1 it 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: Aitchison, Starzynski, Evans & Bolotenko, Oshawa.
Solicitors for the respondents: Sims Brady & McInerney, Whitby.
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