Belong v. Canada (Attorney General) et al., 2013 NBCA 68

• Judge: Deschênes, Robertson and Bell, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 20, 2013
• Jurisdiction: New Brunswick
• Citations: 2013 NBCA 68;(2013), 412 N.B.R.(2d) 327 (CA)

Belong v. Can. (A.G.) (2013), 412 N.B.R.(2d) 327 (CA);

    412 R.N.-B.(2e) 327; 1070 A.P.R. 327

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.B.R.(2d) TBEd. DE.035

Renvoi temp.: [2013] N.B.R.(2d) TBEd. DE.035

Norman Gerard Belong (appellant) v. Her Majesty the Queen in Right of the Attorney General of Canada and Timothy Quigley (respondents)

(98-12-CA; 2013 NBCA 68)

Indexed As: Belong v. Canada (Attorney General) et al.

Répertorié: Belong v. Canada (Attorney General) et al.

New Brunswick Court of Appeal

Deschênes, Robertson and Bell, JJ.A.

December 12, 2013.

Summary:

Résumé:

Belong was an RCMP officer. In 2000, he was convicted of uttering a threat, assault causing bodily harm and sexual assault against his spouse (Haywood). RCMP internal disciplinary proceedings commenced. In 2001, Haywood recanted aspects of her testimony as it related to the sexual assault. As a result, a summary conviction appeal court quashed the convictions and directed verdicts of acquittal. In spite of the acquittals, the RCMP internal disciplinary proceedings continued. Belong was found guilty of disciplinary violations, which were eventually set aside by the RCMP External Review Committee because the hearing had proceeded in Belong's absence. In the result, the RCMP imposed informal discipline which consisted of a written reprimand and a recommendation for training and counseling. Belong sued, asserting that the RCMP, its Commissioner and other members had conducted themselves in an "unfair, discriminatory, arbitrary and scandalous manner" toward him.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, dismissed the action. Belong appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Courts - Topic 685

Judges - Disqualification - Bias - General - The New Brunswick Court of Appeal stated that "[j]udges make findings and inferences in the course of their decision-making which parties might find offensive, unkind or unfair. However, such findings rarely demonstrate a bias or an apprehension of bias. To the contrary, they may demonstrate a trial judge who is alert to the context within which he or she is being called upon to make a decision." - See paragraph 21.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - Belong was an RCMP officer - In 2000, he was convicted of uttering a threat, assault causing bodily harm and sexual assault against his spouse (Haywood) - RCMP internal disciplinary proceedings commenced - In 2001, Haywood recanted aspects of her testimony as it related to the sexual assault - As a result, a summary conviction appeal court quashed the convictions and directed verdicts of acquittal - In spite of the acquittals, the RCMP internal disciplinary proceedings continued - Belong was found guilty of disciplinary violations, which were eventually set aside by the RCMP External Review Committee because the hearing had proceeded in Belong's absence - In the result, the RCMP imposed informal discipline which consisted of a written reprimand and a recommendation for training and counseling - Belong sued, asserting that the RCMP, its Commissioner and other members had conducted themselves in an "unfair, discriminatory, arbitrary and scandalous manner" toward him - The trial judge dismissed the action - Belong appealed, asserting that the trial judge's observations that "all she (Ms. Haywood) wanted was for someone to talk to the Plaintiff with the hopes he would stop abusing her and simply leave her alone" demonstrated an apprehension of bias - Belong asserted that there was no evidence before the trial judge that he was abusing his wife - The New Brunswick Court of Appeal dismissed the appeal - Haywood testified at trial - Her testimony was relevant to demonstrate the bona fides of the RCMP in pursuing their disciplinary action against Belong - She testified to Belong's threat to put a gun to her mouth and also to the incident in which he bit her arm - There was no merit to Belong's assertion there was no evidence of abuse - The evidence was overwhelming that he abused Haywood - There was no bias demonstrated by a trial judge who heard evidence of abuse and called it abuse - See paragraph 24.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - Belong was an RCMP officer - In 2000, he was convicted of uttering a threat, assault causing bodily harm and sexual assault against his spouse (Haywood) - RCMP internal disciplinary proceedings commenced - In 2001, Haywood recanted aspects of her testimony as it related to the sexual assault - As a result, a summary conviction appeal court quashed the convictions and directed verdicts of acquittal - In spite of the acquittals, the RCMP internal disciplinary proceedings continued - Belong was found guilty of disciplinary violations, which were eventually set aside by the RCMP External Review Committee because the hearing had proceeded in Belong's absence - In the result, the RCMP imposed informal discipline which consisted of a written reprimand and a recommendation for training and counseling - Belong sued, asserting that the RCMP, its Commissioner and other members had conducted themselves in an "unfair, discriminatory, arbitrary and scandalous manner" toward him - The trial judge dismissed the action - Belong appealed, asserting that the trial judge's observations that there existed a relationship of domination between Belong and Haywood demonstrated an apprehension of bias - Belong asserted the trial judge demonstrated bias when he interpreted criminal transcripts improperly before him to "depict a relation of domination" - The New Brunswick Court of Appeal dismissed the appeal - The court had already concluded those transcripts were properly admitted to show the state of mind of the RCMP as they made decisions about the potential discipline of Belong - They were, however, unnecessary for the trial judge to reach a conclusion that Belong conducted himself in a "dominating" fashion toward his spouse - Haywood's testimony at the trial constituted overwhelming evidence from which the judge could draw the conclusion that there existed a relationship of domination of Belong over her - A trial judge could not be faulted for identifying a relationship of domination for what it was - See paragraph 25.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - Belong was an RCMP officer - In 2000, he was convicted of uttering a threat, assault causing bodily harm and sexual assault against his spouse (Haywood) - RCMP internal disciplinary proceedings commenced - In 2001, Haywood recanted aspects of her testimony as it related to the sexual assault - As a result, a summary conviction appeal court quashed the convictions and directed verdicts of acquittal - In spite of the acquittals, the RCMP internal disciplinary proceedings continued - Belong was found guilty of disciplinary violations, which were eventually set aside by the RCMP External Review Committee because the hearing had proceeded in Belong's absence - In the result, the RCMP imposed informal discipline which consisted of a written reprimand and a recommendation for training and counseling - Belong sued, asserting that the RCMP, its Commissioner and other members had conducted themselves in an "unfair, discriminatory, arbitrary and scandalous manner" toward him - The trial judge dismissed the action - Belong appealed, asserting that the trial judge demonstrated a bias against him by suggesting that at one time Haywood had "fear of ... violent reprisals" from him without "any evidentiary foundation" - The New Brunswick Court of Appeal dismissed the appeal - A careful review of the record showed the trial judge did have an evidentiary foundation upon which he could make such an observation - See paragraph 26.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - Belong was an RCMP officer - In 2000, he was convicted of uttering a threat, assault causing bodily harm and sexual assault against his spouse (Haywood) - RCMP internal disciplinary proceedings commenced - In 2001, Haywood recanted aspects of her testimony as it related to the sexual assault - As a result, a summary conviction appeal court quashed the convictions and directed verdicts of acquittal - In spite of the acquittals, the RCMP internal disciplinary proceedings continued - Belong was found guilty of disciplinary violations, which were eventually set aside by the RCMP External Review Committee because the hearing had proceeded in Belong's absence - In the result, the RCMP imposed informal discipline which consisted of a written reprimand and a recommendation for training and counseling - Belong sued, asserting that the RCMP, its Commissioner and other members had conducted themselves in an "unfair, discriminatory, arbitrary and scandalous manner" toward him - The trial judge dismissed the action - Belong appealed, asserting that the trial judge demonstrated a bias against him by attributing blame to Belong for defending himself after being wrongfully convicted and serving house arrest unnecessarily - The New Brunswick Court of Appeal dismissed the appeal - The trial judge did not attribute blame to anyone by his observations - A cursory review of the history of this matter demonstrated that the RCMP in New Brunswick were determined to impose some discipline upon Belong for his conduct toward Haywood, regardless of the acquittals - Belong, for his part, was willing to contest every effort by the RCMP to impose any discipline whatsoever and, in addition, was willing to take his employer to court where he would accuse his superiors of highly improper conduct - There was not "one scintilla of evidence" in support of the assertion that the trial judge demonstrated an apprehension of bias against Belong when he stated that neither the RCMP in New Brunswick, nor Cst. Belong, was willing to "put everything behind [them]" - See paragraphs 27 and 28.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - Belong was an RCMP officer - In 2000, he was convicted of uttering a threat, assault causing bodily harm and sexual assault against his spouse (Haywood) - RCMP internal disciplinary proceedings commenced - In 2001, Haywood recanted aspects of her testimony as it related to the sexual assault - As a result, a summary conviction appeal court quashed the convictions and directed verdicts of acquittal - In spite of the acquittals, the RCMP internal disciplinary proceedings continued - Belong was found guilty of disciplinary violations, which were eventually set aside by the RCMP External Review Committee because the hearing had proceeded in Belong's absence - In the result, the RCMP imposed informal discipline which consisted of a written reprimand and a recommendation for training and counseling - Belong sued, asserting that the RCMP, its Commissioner and other members had conducted themselves in an "unfair, discriminatory, arbitrary and scandalous manner" toward him - The trial judge dismissed the action - Belong appealed, asserting that the trial judge demonstrated a bias against him by suggesting that Belong's damages were self-inflicted - The New Brunswick Court of Appeal dismissed the appeal - The conclusion that Belong was the author of his own misfortune or that his damages were self-inflicted was a reasonable inference that could be drawn from the facts and one which the trial judge was entitled to make - See paragraph 29.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - Belong was an RCMP officer - In 2000, he was convicted of uttering a threat, assault causing bodily harm and sexual assault against his spouse (Haywood) - RCMP internal disciplinary proceedings commenced - In 2001, Haywood recanted aspects of her testimony as it related to the sexual assault - As a result, a summary conviction appeal court quashed the convictions and directed verdicts of acquittal - In spite of the acquittals, the RCMP internal disciplinary proceedings continued - Belong was found guilty of disciplinary violations, which were eventually set aside by the RCMP External Review Committee because the hearing had proceeded in Belong's absence - In the result, the RCMP imposed informal discipline which consisted of a written reprimand and a recommendation for training and counseling - Belong sued, asserting that the RCMP, its Commissioner and other members had conducted themselves in an "unfair, discriminatory, arbitrary and scandalous manner" toward him - The trial judge dismissed the action - Belong appealed, asserting that the trial judge demonstrated a bias against him by questioning his integrity and that of his counsel as it related to medical issues - The New Brunswick Court of Appeal dismissed the appeal - The court found nothing inappropriate in the trial judge's observations - While his comments were gratuitous, they were not inappropriate and, to the reasonable bystander, fully informed of all the circumstances, did not demonstrate an apprehension of bias - The trial judge was merely trying to demonstrate that what should have been a straightforward, internal disciplinary process, arising from serious threats and infantile biting by a member of the RCMP was constantly being derailed for reasons that, in his view, were suspect - Based upon the record before him, that was not an unreasonable conclusion - Furthermore, such a finding constituted part of the context within which he was required to judge very serious allegations brought by Belong against the RCMP and its senior officers - See paragraphs 30 to 42.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - Belong was an RCMP officer - In 2000, he was convicted of uttering a threat, assault causing bodily harm and sexual assault against his spouse (Haywood) - RCMP internal disciplinary proceedings commenced - In 2001, Haywood recanted aspects of her testimony as it related to the sexual assault - As a result, a summary conviction appeal court quashed the convictions and directed verdicts of acquittal - In spite of the acquittals, the RCMP internal disciplinary proceedings continued - Belong was found guilty of disciplinary violations, which were eventually set aside by the RCMP External Review Committee because the hearing had proceeded in Belong's absence - In the result, the RCMP imposed informal discipline which consisted of a written reprimand and a recommendation for training and counseling - Belong sued, asserting that the RCMP, its Commissioner and other members had conducted themselves in an "unfair, discriminatory, arbitrary and scandalous manner" toward him - The trial judge dismissed the action - Belong appealed, asserting that the trial judge demonstrated a bias against him by quoting extensively from, and apparently "endorsing", the Adjudication Board's decision which was eventually overturned by the RCMP's External Review Committee - The New Brunswick Court of Appeal dismissed the appeal - "Given the nature of the allegations made against the RCMP and its superior officers, the trial judge was required to consider what might otherwise be considered hearsay or extraneous evidence, in order to determine what information was available to the RCMP at the time the impugned decisions were made. There would be no other manner by which the trial judge could determine the intention of the RCMP personnel. I am of the view there is no merit to this allegation of apprehension of bias. The Adjudication Board's decision, albeit hearsay, constituted part of the information available to the RCMP as they assessed whether to continue with disciplinary measures." - See paragraph 43.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - Belong was an RCMP officer - In 2000, he was convicted of uttering a threat, assault causing bodily harm and sexual assault against his spouse (Haywood) - RCMP internal disciplinary proceedings commenced - In 2001, Haywood recanted aspects of her testimony as it related to the sexual assault - As a result, a summary conviction appeal court quashed the convictions and directed verdicts of acquittal - In spite of the acquittals, the RCMP internal disciplinary proceedings continued - Belong was found guilty of disciplinary violations, which were eventually set aside by the RCMP External Review Committee because the hearing had proceeded in Belong's absence - In the result, the RCMP imposed informal discipline which consisted of a written reprimand and a recommendation for training and counseling - Belong sued, asserting that the RCMP, its Commissioner and other members had conducted themselves in an "unfair, discriminatory, arbitrary and scandalous manner" toward him - The trial judge dismissed the action - Belong appealed, asserting that the trial judge demonstrated a bias against him by stating that Belong accused the RCMP of "sins" while they were merely trying to do their job - The New Brunswick Court of Appeal dismissed the appeal - While the court might have chosen different words, the trial judge's words had to be considered within the context of the situation before him and his own use of language - Regardless of the language used, his conclusions were jurisprudentially sound - The trial judge concluded, which was totally within his jurisdiction, that the RCMP and its superiors were simply trying to do their job without any malice or tortious conduct toward Belong - See paragraph 44.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - Belong was an RCMP officer - In 2000, he was convicted of uttering a threat, assault causing bodily harm and sexual assault against his spouse (Haywood) - RCMP internal disciplinary proceedings commenced - In 2001, Haywood recanted aspects of her testimony as it related to the sexual assault - As a result, a summary conviction appeal court quashed the convictions and directed verdicts of acquittal - In spite of the acquittals, the RCMP internal disciplinary proceedings continued - Belong was found guilty of disciplinary violations, which were eventually set aside by the RCMP External Review Committee because the hearing had proceeded in Belong's absence - In the result, the RCMP imposed informal discipline which consisted of a written reprimand and a recommendation for training and counseling - Belong sued, asserting that the RCMP, its Commissioner and other members had conducted themselves in an "unfair, discriminatory, arbitrary and scandalous manner" toward him - The trial judge dismissed the action - Belong appealed, asserting that the trial judge demonstrated a bias against him - Belong took issue with the trial judge's conclusions about his character and family life, disagreed with the negative comparison of his testimony with that of Haywood and generally disagreed with the use of his (Belong's) testimony at the criminal trial - The New Brunswick Court of Appeal dismissed the appeal - The findings and inferences interpreted by Belong as constituting an "apprehension of bias" were merely the product of the legitimate reasoning process of the trial judge - See paragraphs 45 to 47.

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See all Courts - Topic 686 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See seventh Courts - Topic 686 ].

Evidence - Topic 3358

Documentary evidence - Judicial proceedings - Transcript of evidence from prior proceedings - Belong was an RCMP officer - In 2000, he was convicted of uttering a threat, assault causing bodily harm and sexual assault against his spouse (Haywood) - RCMP internal disciplinary proceedings commenced - In 2001, Haywood recanted aspects of her testimony as it related to the sexual assault - As a result, a summary conviction appeal court quashed the convictions and directed verdicts of acquittal - In spite of the acquittals, the RCMP internal disciplinary proceedings continued - Belong was found guilty of disciplinary violations, which were eventually set aside by the RCMP External Review Committee because the hearing had proceeded in Belong's absence - In the result, the RCMP imposed informal discipline which consisted of a written reprimand and a recommendation for training and counseling - Belong sued, asserting that the RCMP, its Commissioner and other members had conducted themselves in an "unfair, discriminatory, arbitrary and scandalous manner" toward him - The trial judge dismissed the action - Belong appealed, asserting that the trial judge improperly admitted transcripts from the criminal trial and documents related to the disciplinary hearings into evidence - The New Brunswick Court of Appeal dismissed the appeal - The impugned transcripts were not admitted for the purpose of proving the truth of their contents - Their purpose was to demonstrate what information was available to the RCMP at the time they made the decisions relevant to Belong's disciplinary process - The trial judge clearly understood the distinction between material offered as proof of the truth of the contents and material offered to show what information the RCMP were relying upon at any given time - Stripped to its core, Belong's major complaint was that the RCMP proceeded with its internal discipline proceedings in the face of acquittals on all three criminal matters - The trial judge, after reading Belong's testimony at trial, reading the judgment of the Provincial Court judge, and acknowledging that the convictions would eventually be overturned said, "this Court can nonetheless understand why the RCMP has, still after 2003, maintained the intention to pursue the Code of Conduct Procedure" - Not only could the trial judge consider information available to the RCMP as they made their decisions, he was required to do so - There was no merit to this ground of appeal - See paragraphs 10 to 13.

Torts - Topic 6252

Abuse of legal procedure - Abuse of process - Elements - Belong was an RCMP officer - In 2000, he was convicted of uttering a threat, assault causing bodily harm and sexual assault against his spouse (Haywood) - RCMP internal disciplinary proceedings commenced - In 2001, Haywood recanted aspects of her testimony as it related to the sexual assault - As a result, a summary conviction appeal court quashed the convictions and directed verdicts of acquittal - In spite of the acquittals, the RCMP internal disciplinary proceedings continued - Belong was found guilty of disciplinary violations, which were eventually set aside by the RCMP External Review Committee because the hearing had proceeded in Belong's absence - In the result, the RCMP imposed informal discipline which consisted of a written reprimand and a recommendation for training and counseling - Belong sued, asserting that the RCMP, its Commissioner and other members had conducted themselves in an "unfair, discriminatory, arbitrary and scandalous manner" toward him - The trial judge dismissed the action - Belong appealed, asserting that the trial judge permitted an abuse of process by misapplying Haywood's evidence and credibility following Belong's acquittal on all three criminal charges, based upon Haywood's discredited testimony - The New Brunswick Court of Appeal dismissed the appeal - The tort of abuse of process required the establishment of the following two essential elements: "1. the misuse of process for any purpose other than that which it was designed to serve; and 2. some overt act or threat, distinct from the proceedings themselves, in furtherance of the improper purpose." - Belong failed to establish these elements - "No evidence was led at trial to demonstrate the existence of a collateral or improper purpose behind the RCMP's decision to proceed with the disciplinary charges" - Further, Belong led no evidence of a definite act or threat in furtherance of such a purpose - Instead, Belong's focus was that the disciplinary proceedings became an abuse of process by virtue of his acquittal on the criminal charges - The trial judge did not permit an abuse of process - To the contrary, he properly applied the law regarding the tort of abuse of process and properly concluded it was not made out in the circumstances - See paragraphs 14 to 19.

Délits civils - Cote 6252

Abus de recours - Abus de procédure - Éléments - [Voir Torts - Topic 6252 ].

Preuve - Cote 1527

Règle du ouï-dire - Exceptions et exclusions - Nécessité de l'admission du ouï-dire et fiabilité de la preuve - [Voir Evidence - Topic 1527 ].

Preuve - Cote 3358

Preuve documentaire - Procédures judiciaires - Transcription de la preuve recueillie lors d'une procédure antérieure - [Voir Evidence - Topic 3358 ].

Tribunaux - Cote 685

Juges - Récusation - Partialité - Généralités - [Voir Courts - Topic 685 ].

Tribunaux - Cote 686

Juges - Récusation - Partialité - Par le juge du procès ou de la requête - [Voir Courts - Topic 686 ].

Tribunaux - Cote 691

Juges - Récusation - Partialité - Crainte raisonnable de partialité - [Voir Courts - Topic 691 ].

Cases Noticed:

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, dist. [para. 15].

Haché v. Board of Education of Lunenburg County District (2004), 222 N.S.R.(2d) 354; 701 A.P.R. 354; 2004 NSCA 46, dist. [para. 15].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321, refd to. [para. 18].

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201; 2003 SCC 24, refd to. [para. 22].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 29].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 29].

New Brunswick Power Distribution and Customer Service Corp. et al. v. Kinsella (2013), 402 N.B.R.(2d) 323; 1044 A.P.R. 323; 2013 NBCA 25, refd to. [para. 29].

Construction B.H.M. ltée et al. v. Caisse populaire de Shippagan ltée (2012), 386 N.B.R.(2d) 373; 999 A.P.R. 373; 2012 NBCA 30, refd to. [para. 29].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 46].

Rothesay Residents Association Inc. v. Rothesay Heritage Preservation & Review Board et al. (2006), 299 N.B.R.(2d) 369; 778 A.P.R. 369; 2006 NBCA 61, refd to. [para. 49].

Lacey-House v. Lambert (2013), 406 N.B.R.(2d) 346; 1053 A.P.R. 346; 2013 NBCA 48, refd to. [para. 49].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 51].

Counsel:

Avocats:

Clarence L. Bennett, for the appellant;

Lori Rasmussen and Patricia MacPhee, for the respondents.

This appeal was heard on June 20, 2013, by Deschênes, Robertson and Bell, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered in both official languages, by Bell, J.A., on December 12, 2013.