Burnham v. Toronto Police Force et al., (1987) 24 O.A.C. 367 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 19, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 24 O.A.C. 367 (SCC)

Burnham v. Toronto Police (1987), 24 O.A.C. 367 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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William Burnham v. Chief of Police John W. Ackroyd and Designated Presiding Officer Superintendent Robert P. Lynn, Attorney General of Canada, Attorney General for Ontario, Attorney General of Quebec, Attorney General for New Brunswick

(No. 20080)

Indexed As: Burnham v. Toronto Police Force et al.

Supreme Court of Canada

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

November 19, 1987.

Summary:

A police officer was charged with discreditable conduct contrary to regulation 791 made pursuant to the Police Act, R.S.O. 1980, c. 381, for wilfully or negligently making a false complaint against a member of the police force contrary to s. 1(a)(iv) of the Code of Offences. He was also charged with neglect of duty contrary to s. 1(c)(x) of the Code of Offences for being absent from duty without leave (both major offences). The proceeding came before the designated presiding officer. Counsel objected that the tribunal was not independent and impartial as required by s. 11(d) of the Canadian Charter of Rights and Freedoms, but the presiding officer ruled against the objection. The police officer applied for judicial review.

The Ontario Divisional Court dismissed the application for review for the reasons given in Trumbley and Pugh et al. v. Toronto Police Force et al., 5 O.A.C. 368. The police officer appealed. The Ontario Court of Appeal, in a decision reported 15 O.A.C. 279, dismissed the appeal. The police officer appealed again. The Supreme Court of Canada stated two constitutional questions for the court to consider: 1. Does s. 11(d) of the Charter apply to police disciplinary proceedings under regulation 791 made pursuant to s. 74(1) of the Police Act (Ont.)?, and 2. If s. 11(d) applies, is regulation 791 inconsistent with the section and if so can it be justified under s. 1 of the Charter? The Supreme Court of Canada answered the first constitutional question in the negative and dismissed the police officer's appeal. The court held that s. 11 does not apply to police disciplinary proceedings under regulation 791, because the proceedings were neither criminal in nature nor did they involve any true penal consequences. The court therefore found it unnecessary to consider the second question.

Also see: R. v. Wigglesworth, 81 N.R. 161; Trimm v. Durham Regional Police Force et al., 81 N.R. 197; Trumbley and Pugh et al. v. Toronto Police Force et al., 81 N.R. 212.

Civil Rights - Topic 3187

Trials - Due process - Fundamental justice and fair hearings - Non criminal proceedings - Right to independent and impartial tribunal - A police officer was charged with major offences under regulation 791 made pursuant to the Ontario Police Act - Under the Act the police force both charged and tried officers respecting alleged offences - An officer argued that this violated s. 11(d) of the Charter (right to an independent and impartial tribunal) - The Supreme Court of Canada held that s. 11 did not apply to police disciplinary proceedings under regulation 791, because the proceedings were neither criminal in nature nor did they give rise to any true penal consequences.

Civil Rights - Topic 8305.1

Canadian Charter of Rights and Freedoms - Application - S. 11 - [See Civil Rights - Topic 3187 above].

Civil Rights - Topic 8426

Canadian Charter of Rights and Freedoms - Operation - Nature or true consequences test (s. 11) - [See Civil Rights - Topic 3187 above].

Civil Rights - Topic 8545

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Charged with an offence - [See Civil Rights - Topic 3187 above].

Police - Topic 4061

Internal organization - Discipline of members - General - [See Civil Rights - Topic 3187 above].

Police - Topic 4243

Internal organization - Discipline - Rights of officers - Charter rights - [See Civil Rights - Topic 3187 above].

Words and Phrases

Charged with an offence - The Supreme Court of Canada discussed the meaning of this phrase as it appeared in s. 11 of the Canadian Charter of Rights and Freedoms.

Cases Noticed:

Trumbley and Pugh v. Toronto Police Force et al., 5 O.A.C. 368, refd to. [para. 2].

Trumbley and Pugh v. Toronto Police Force et al., 15 O.A.C. 279; 55 O.R.(2d) 570, refd to. [para. 3].

Trimm v. Durham Regional Police Force et al. (1987), 81 N.R. 197, refd to. [para. 5].

R. v. Wigglesworth (1987), 81 N.R. 161, folld. [para. 5].

Trumbley and Pugh v. Toronto Police Force et al. (1987), 81 N.R. 212, refd to. [para. 5].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 11.

Police Act, R.S.O. 1980, c. 381.

Police Act Regulations, reg. 791, R.R.O. 1980, generally; Code of Offences sect. 1(a)(iv), sect. 1(c)(x) [para. 1].

Counsel:

Barry Chercover, and Lewis Gottheil, 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.

Solicitors of Record:

Maclean, Chercover, Toronto, for the appellant;

A.P.G. Joy, Toronto, for the respondent;

Attorney General of Canada, Ottawa, for the intervener the Attorney General of Canada;

Ministry of the Attorney General, Toronto, for the intervener the Attorney General for Ontario;

Attorney General of Quebec, Sainte-Foy, for the intervener the Attorney General of Quebec;

Attorney General of New Brunswick, Fredericton, for the intervener the Attorney General for New Brunswick.

This appeal was heard on March 4, 5 and 6, 1987, before Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and La Forest, JJ., of the Supreme Court of Canada. The following decision was delivered in both official languages by Wilson, J., on November 19, 1987: