Cannon v. Royal Canadian Mounted Police (Assistant Commissioner), (1997) 139 F.T.R. 91 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: October 16, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 139 F.T.R. 91 (TD)

Cannon v. RCMP (1997), 139 F.T.R. 91 (TD)

MLB headnote and full text

Temp. Cite: [1997] F.T.R. TBEd. DE.005

Clive E. Cannon (applicant) v. Assistant Commissioner R. Berlinquette in his capacity as appropriate officer under s. 43 of the Royal Canadian Mounted Police Act (respondent)

(T-1654-96)

Indexed As: Cannon v. Royal Canadian Mounted Police (Assistant Commissioner)

Federal Court of Canada

Trial Division

MacKay, J.

November 14, 1997.

Summary:

Complaints of sexual harassment were made against Cannon, a member of the Royal Canadian Mounted Police. Disciplinary proceedings were initiated and a board was constituted to inquire into whether Cannon had breached the R.C.M.P. Code of Conduct. During the hearing, Cannon summoned the prosecuting officer as a witness and moved that he be removed from the hearing until called as a witness. Cannon asserted that the prosecuting officer was part of a conspiracy to mislead the board and withhold information from the board and himself. The board quashed the summons and dismissed the motion. Cannon applied for judicial review, asserting that the decision violated the principle of procedural fairness, represented an error of jurisdiction and violated his ss. 7 and 11(d) Charter rights.

The Federal Court of Canada, Trial Division, dismissed the application, where there were no special circumstances warranting the court's intervention on an interlocutory decision. The court denied Cannon's request for solicitor and client costs.

Administrative Law - Topic 3220

Judicial review - General - Interim applications - Disciplinary proceedings were initiated and an adjudication board was constituted to inquire into whether Cannon had breached the R.C.M.P. Code of Conduct - During the hearing, Cannon summoned the prosecuting officer as a witness and moved that he be removed from the hearing until called as a witness - Cannon asserted that the prosecuting officer had conspired to mislead the board and withhold information - The board quashed the summons and dismissed the motion - The Federal Court of Canada, Trial Division, dismissed Cannon's judicial review application, where there were no special circumstances warranting the court's intervention on an interlocutory decision - See paragraphs 1 to 39.

Administrative Law - Topic 3349

Judicial review - General - Practice - Costs - [See Practice - Topic 7454 ].

Civil Rights - Topic 1303

Security of the person - Employment - Right to carry on a business or earn a livelihood - Disciplinary proceedings were initiated to inquire into whether Cannon had breached the R.C.M.P. Code of Conduct - Cannon was advised that if a breach was found, dismissal from the force would be sought - During the hearing, Cannon summoned the prosecuting officer as a witness and moved that he be removed from the hearing until called as a witness - After hearing arguments, the board quashed the summons and dismissed the motion - Cannon sought judicial review, asserting, inter alia, that the board had contravened s. 7 of the Charter - The Federal Court of Canada, Trial Division, held that the proceedings, even if the sanction was loss of employment, did not give rise to s. 7 of the Charter - Alternatively, s. 7 was not violated - See paragraphs 25 to 27.

Civil Rights - Topic 3193

Trials, due process, fundamental justice and fair hearings - Administrative and non-criminal proceedings - Procedure not contrary to fundamental justice - [See Civil Rights - Topic 1303 ].

Civil Rights - Topic 8305.1

Canadian Charter of Rights and Freedoms - General - Application - Section 11 - Disciplinary proceedings were initiated to inquire into whether Cannon had breached the R.C.M.P. Code of Conduct - Cannon was advised that if a breach was found, dismissal from the force would be sought - During the hearing, Cannon summoned the prosecuting officer as a witness and moved that he be removed from the hearing until called as a witness - After hearing arguments, the board quashed the summons and dismissed the motion - Cannon sought judicial review, asserting, inter alia, that the board did not meet the s. 11(d) Charter requirements of "an independent and impartial tribunal" - The Federal Court of Canada, Trial Division, held that s. 11(d) was inapplicable, where the possible sanction of dismissal was not penal, but was intended to maintain discipline - See paragraphs 28 to 38.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 1303 ].

Courts - Topic 4057

Federal Court of Canada - Jurisdiction - Trial Division - Judicial review of interlocutory decisions - [See Administrative Law - Topic 3220 ].

Police - Topic 4143

Internal organization - Discipline - Boards - Jurisdiction - During R.C.M.P. disciplinary proceedings respecting Cannon, Cannon summoned the prosecuting officer as a witness and moved that he be removed from the hearing until called as a witness - The board quashed the summons and dismissed the motion - The Federal Court of Canada, Trial Division, rejected an assertion that the board committed a jurisdictional error in quashing the summons - Express statutory authority was unnecessary for the board, in determining its own procedural requirements, to quash the summon - Neither the Royal Canadian Mounted Police Act nor the applicable Regulations restricted the board's authority for procedural decisions - The only limitations arose from procedural fairness - Moreover, s. 4 of the Commissioner's Standing Orders (Practice and Procedures) authorized the board to take steps necessary to settle matters not otherwise provided for in the Rules - See paragraph 20.

Police - Topic 4187

Internal organization - Discipline - Hearings - Requirements of natural justice - During R.C.M.P. disciplinary proceedings respecting Cannon, Cannon summoned the prosecuting officer as a witness and moved to have him removed from the hearing until called as a witness - After hearing arguments, the board quashed the summons and dismissed the motion - The Federal Court of Canada, Trial Division, rejected an assertion that the board violated the requirements of procedural fairness in quashing the summons - Cannon was not prevented from having a full and ample opportunity to present evidence, cross-examine witnesses and make representations as required by s. 45.1(8) of the Royal Canadian Mounted Police Act - The Act did not give an unlimited right to call witnesses, particularly in light of s. 6 of the Commissioner's Standing Orders (Practice and Procedures) which permitted the board to dismiss witnesses - See paragraphs 21 to 23.

Police - Topic 4191

Internal organization - Discipline - Hearings - Evidence - Witnesses - The Federal Court of Canada, Trial Division, rejected an assertion that a witness in disciplinary proceedings under the Royal Canadian Mounted Police Act could not be dismissed until called during the proceedings - See paragraph 22.

Police - Topic 4191

Internal organization - Discipline - Hearings - Evidence - Witnesses - The Federal Court of Canada, Trial Division, held that the standard of relevance and necessity applied to a party in disciplinary proceedings under the Royal Canadian Mounted Police Act who seeks to have opposing counsel appear as a witness and relinquish his role as counsel - See paragraph 23.

Police - Topic 4191

Internal organization - Discipline - Hearings - Evidence - Witnesses - [See Police - Topic 4187 ].

Police - Topic 4243

Internal organization - Discipline - Rights of officers - Charter rights - [See Civil Rights - Topic 1303 and Civil Rights - Topic 8305.1 ].

Police - Topic 4267

Internal organization - Discipline - Procedure - Evidence and proof - [See second Police - Topic 4191 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - An adjudication board issued an interlocutory decision in disciplinary proceedings respecting Cannon, an R.C.M.P. officer - On judicial review, Cannon sought solicitor and client costs on the basis that the prosecuting officer's affidavit with an exhibit of the allegations and particulars of unproven charges against him was vexatious - Cannon asserted that the details of the charges were irrelevant and were intended to embarrass him - Cannon also asserted that by releasing the information to the public he had lost his right to a fair and impartial hearing - In dismissing the judicial review application, the Federal Court of Canada, Trial Division denied Cannon's request for solicitor and client costs - See paragraphs 40, 41.

Cases Noticed:

Szczecka v. Ministre de l'Emploi et de l'Immigration (1993), 170 N.R. 58; 116 D.L.R.(4th) 333; 25 Imm. L.R.(2d) 70 (F.C.A.), refd to. [para. 14, footnote 1].

Groupe G. Tremblay Syndics Inc. et al. v. Surintendant des faillites et al., [1997] 2 F.C. 719; 128 F.T.R. 81; 147 D.L.R.(4th) 739 (T.D.), refd to. [para. 15, footnote 2].

Mohawk Council of Kahnawake v. Jacobs, [1996] F.C.J. No. 757 (T.D.), refd to. [para. 15, footnote 3].

Singh v. Canada (Secrétaire d'Etat) (1994), 82 F.T.R. 68; 27 Imm. L.R.(2d) 176 (T.D.), refd to. [para. 15, footnote 3].

Novopharm Ltd. v. Aktiebolaget Astra et al., [1996] 2 F.C. 839; 110 F.T.R. 307; 68 C.P.R.(3d) 117 (T.D.), refd to. [para. 16, footnote 4].

Pfeiffer v. Redling et al., [1996] 3 F.C. 584; 116 F.T.R. 173 (T.D.), refd to. [para. 17, footnote 5].

Pfeiffer v. Canada (Superintendent of Bankruptcy) - see Pfeiffer v. Redling et al.

Cedarvale Tree Services Ltd. v. Labourers' International Union of North America (1971), 22 D.L.R.(3d) 40 (Ont. C.A.), refd to. [para. 20, footnote 7].

Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al. (1997), 127 F.T.R. 44 (T.D.), refd to. [para. 20, footnote 7].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81; [1990] 3 W.W.R. 289, refd to. [para. 20, footnote 7].

Dominion Engineering Works Ltd. et al. v. Japan Electrical Manufacturers Association et al. (1986), 72 N.R. 300; 32 D.L.R.(4th) 222 (F.C.A.), refd to. [para. 20, footnote 7].

Sutton v. Canada Employment and Immigration Commission (1994), 74 F.T.R. 284 (T.D.), refd to. [para. 20, footnote 7].

Bernier v. Kent Institution Disciplinary Court (Independent Chairperson) (1986), 7 F.T.R. 229 (T.D.), refd to. [para. 20, footnote 7].

R. v. Sungalia, [1992] O.J. No. 3718 (Gen. Div.), refd to. [para. 23, footnote 8].

R. v. Cocelli (H.) (1996), 15 O.T.C. 85 (Gen. Div.), refd to. [para. 23, footnote 8].

R. v. Kyling, [1996] Q.J. No. 1566 (Que. S.C.), refd to. [para. 23, footnote 8].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, folld. [para. 25, footnote 9].

Weyer v. Canada (1988), 83 N.R. 272 (F.C.A.), folld. [para. 26, footnote 10].

R. v. Généreux, [1992] 1 S.C.R. 259; 133 N.R. 241; 88 D.L.R.(4th) 110, dist. [para. 28, footnote 11].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321; 28 Admin. L.R. 294, refd to. [para. 32, footnote 12].

Landry v. Gaudet et al. (1992), 54 F.T.R. 307; 95 D.L.R.(4th) 289 (T.D.), refd to. [para. 35, footnote 13].

Laquerre v. Murray and Canada (Procureur général) (1995), 100 F.T.R. 241; 33 Admin. L.R.(2d) 268 (T.D.), refd to. [para. 36, footnote 14].

Trimm v. Durham Regional Police Force et al., [1987] 2 S.C.R. 582; 81 N.R. 197; 24 O.A.C. 357; 45 D.L.R.(4th) 276, refd to. [para. 37, footnote 15].

Burnham v. Toronto Police Force et al., [1987] 2 S.C.R. 572; 81 N.R. 207; 24 O.A.C. 367; 45 D.L.R.(4th) 309, refd to. [para. 37, footnote 16].

Trumbley and Pugh et al. v. Toronto Police Force et al., [1987] 2 S.C.R. 577; 81 N.R. 212; 24 O.A.C. 372; 45 D.L.R.(4th) 318, refd to. [para. 37, footnote 17].

Statutes Noticed:

Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, sect. 45.1(8) [para. 22].

Counsel:

George P.L. Filliter, for the applicant;

Michael F. Dononvan, for the respondent.

Solicitors of Record:

Wood Melanson Filliter, Fredericton, New Brunswick, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard in Fredericton, New Brunswick, on October 16, 1997, before MacKay, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on November 14, 1997.