Pitawanakwat v. Wikwemikong Tribal Police Services, 2010 FC 917

• Judge: Zinn, J.
• Court: Federal Court (Canada)
• Case Date: June 22, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2010 FC 917;(2010), 376 F.T.R. 272 (FC)

Pitawanakwat v. Police Services (2010), 376 F.T.R. 272 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. SE.024

Police Constable Crystal Pitawanakwat (applicant) v. Wikwemikong Tribal Police Services (respondent)

(T-1921-09; 2010 FC 917)

Indexed As: Pitawanakwat v. Wikwemikong Tribal Police Services

Federal Court

Zinn, J.

September 15, 2010.

Summary:

A First Nations Constable was dismissed for discreditable conduct following an investigation and hearing which concluded that she used and sold cocaine. The Constable applied under s. 18.1 of the Federal Courts Act for judicial review. At issue was whether the court had jurisdiction to review the decision, whether the tribunal erred in determining that the Notice of Charge was properly served within the six month time limit under the Police Services Act, and whether the tribunal's reasons for its decision were sufficient.

The Federal Court dismissed the application.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - A First Nations Constable with the Wikwemikong Tribal Police Services (WTPS) was suspected of using and selling cocaine - The WTPS investigated and appointed a one person tribunal to hear the matter - The Constable was found guilty of discreditable conduct and was dismissed - The Constable applied under s. 18.1 of the Federal Courts Act for judicial review, arguing that the tribunal's reasons were insufficient - The Federal Court held that "the reasons are adequate. The reasons permit the applicant to know why her evidence was rejected and what evidence was accepted that led to the finding of discreditable conduct - namely the use and selling of illegal drugs. Frankly, that conduct in my view necessarily leads to the conclusion that the officer had engaged in discreditable conduct. If the applicant does not understand that, then there is nothing the decision-maker could have said to make that point evident." - See paragraphs 52 to 54.

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Federal Court - Decisions of federal boards, commissions or tribunals - A First Nations Constable with the Wikwemikong Tribal Police Services (WTPS) was suspected of using and selling cocaine - The WTPS investigated and appointed a one person tribunal to hear the matter - The Constable was found guilty of discreditable conduct and was dismissed - The Constable applied under s. 18.1 of the Federal Courts Act for judicial review - At issue was whether the WTPS was a "federal board, commission or other tribunal" under s. 2(1) of the Act - If not, the court lacked jurisdiction - The Federal Court held that the WTPS, in relation to its decision to dismiss the officer, was acting as a "federal board, commission or other tribunal" - Applying the ITO test (SCC), there was a statutory grant of jurisdiction by Parliament, there was an existing body of federal law which was essential to the disposition of the case and which nourished the statutory grant of jurisdiction, and the law relating to aboriginal police forces was a "law of Canada" as that phrase was used in s. 101 of the Constitution Act, 1867 - Accordingly, the court had jurisdiction to entertain the judicial review application - See paragraphs 20 to 44.

Courts - Topic 4054

Federal Court of Canada - Jurisdiction - Federal Court - Indians, Inuit and Métis - [See Courts - Topic 4021.1 ].

Police - Topic 4266

Internal organization - Discipline - Procedure - Notice - Section 69(18) of the Police Services Act required that a Notice of Hearing be served on a police officer within six months of receipt of the knowledge of the facts upon which the complaint was based, unless delaying the Notice of Hearing was reasonable - A First Nations Constable with the Wikwemikong Tribal Police Services (WTPS) was suspected of using and selling cocaine - The matter was investigated, a hearing was convened, and the Constable was dismissed for discreditable conduct - If the six month time period began running when the police chief first heard rumours and unsubstantiated conjecture about the Constable's involvement with drugs, the Notice was not served within six months - If the time commenced running when the Constable admitted cocaine use when questioned, the Notice was served in time - The Federal Court held that there was some question as to whether s. 69(18) applied, because a First Nations Constable was not included in the Act's definition of "police officer" - Assuming that s. 69(18) applied, the decision that the police chief did not have knowledge based on mere rumours and conjecture was reasonable - If a Notice of Hearing was required, it was filed within the six month time period - See paragraphs 45 to 51.

Cases Noticed:

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241, refd to. [para. 21].

Canatonquin v. Gabriel, [1980] 2 F.C. 792 (F.C.A.), refd to. [para. 26].

Sparvier v. Cowessess Indian Band No. 73 et al., [1994] 1 C.N.L.R. 182; 63 F.T.R. 242 (T.D.), refd to. [para. 26].

Peace Hills Trust Co. v. Saulteaux First Nation - see Peace Hills Trust Co. v. Moccasin et al.

Peace Hills Trust Co. v. Moccasin et al. (2005), 281 F.T.R. 201; 2005 FC 1364, refd to. [para. 26].

Vollant v. Sioui et al. (2006), 295 F.T.R. 48; 2006 FC 487, refd to. [para. 26].

Devil's Gap Cottagers (1982) Ltd. v. Rat Portage Indian Band et al. (2008), 331 F.T.R. 87; 2008 FC 812, refd to. [para. 26].

Cottrell v. Chippewas of Rama Mnjikaning First Nation (2009), 342 F.T.R. 295; 2009 FC 261, refd to. [para. 26].

DRL Vacations Ltd. v. Halifax Port Authority (2005), 274 F.T.R. 293; 2005 FC 860, refd to. [para. 28].

Parisier v. Ocean Man First Nation et al. (1996), 108 F.T.R. 297 (T.D.), refd to. [para. 29].

Okeymow v. Samson Cree Nation et al. (2003), 235 F.T.R. 87; 2003 FCT 737, refd to. [apra. 29].

Four B Manufacturing Ltd. v. United Garment Workers of America, Labour Relations Board (Ont.) and Brant et al., [1980] 1 S.C.R. 1031; 30 N.R. 421, refd to. [para. 36].

Sagkeeng Alcohol Rehab Centre Inc. v. Abraham et al., [1994] 3 F.C. 449; 79 F.T.R. 53 (T.D.), refd to. [para. 39].

Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory, Re, [2001] 1 C.N.L.R. 176 (C.I.R.B.), refd to. [para. 40].

Sioux Lookout Meno-Ya-Win Health Centre, Re, [2006] 2 C.N.L.R. 310 (C.I.R.B.), refd to. [para. 40, footnote 4].

Gough v. Peel Regional Police Service (2009), 248 O.A.C. 105 (Div. Ct.), refd to. [para. 51].

Via Rail Canada Inc. v. National Transportation Agency et al., [2001] 2 F.C. 25; 261 N.R. 184 (F.C.A.), refd to. [para. 54].

Statutes Noticed:

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 2(1) [para. 23]; sect. 18.1(3) [para. 22].

Police Services Act, R.S.O. 1990, c. P-15, sect. 69(18) [para. 11].

Authors and Works Noticed:

Canada, Public Safety and Emergency Preparedness, Audit of the First Nations Policing Program (2007), generally [para. 32].

Canada, Public Safety and Emergency Preparedness, Follow-up Audit Management Action Plan (2007) for the First Nations Policing Program: Audit Report - June 2010, generally [para. 32].

Ontario, Report of the Ipperwash Inquiry (2007), vol. 2, pp. 261 [para. 20, footnote 3]; 262 [para. 43].

Woodward, Jack, Native Law (1994) (Looseleaf), p. 378.10 [paras. 20, 42, footnote 2].

Counsel:

Richard Guy, for the applicant;

Brian T. Daly, for the respondent.

Solicitors of Record:

Richard Guy Professional Corporation, Sudbury, Ontario, for the applicant;

McKenzie Lake Lawyers LLP, London, Ontario, for the respondent.

This application was heard on June 22, 2010, at Toronto, Ontario, before Zinn, J., of the Federal Court, who delivered the following judgment on September 15, 2010.