Rundel v. Braidwood, 2009 BCCA 604

• Judge: Saunders, Chiasson and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 04, 2009
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 604;(2009), 279 B.C.A.C. 215 (CA)

Rundel v. Braidwood (2009), 279 B.C.A.C. 215 (CA);

    473 W.A.C. 215

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. JA.024

Constable William Bentley, A Member of the Royal Canadian Mounted Police (appellant/petitioner) v. Thomas R. Braidwood, Q.C., Commissioner and Attorney General of British Columbia (respondents/respondents)

(CA037241)

Constable Kwesi Millington, a Member of the Royal Canadian Mounted Police (appellant/petitioner) v. Thomas R. Braidwood, Q.C., Commissioner and Attorney General of British Columbia (respondents/respondents)

(CA037246)

Constable Gerry Rundel, A Member of the Royal Canadian Mounted Police (appellant/petitioner) v. Thomas R. Braidwood, Q.C., Commissioner and Attorney General of British Columbia (respondents/respondents)

(CA037251; 2009 BCCA 604)

Indexed As: Rundel v. Braidwood

British Columbia Court of Appeal

Saunders, Chiasson and Groberman, JJ.A.

December 29, 2009.

Summary:

On October 14, 2007, Dziekanski, a new arrival to Canada, died in the International Lounge of the Vancouver International Airport. His death followed the deployment of a conducted energy weapon by a Royal Canadian Mounted Police member, one of four officers who responded to a call from the airport for assistance. The Province appointed a Commission (Braidwood) under the Public Inquiry Act (B.C.), to inquire into and report on Dziekanski's death. The Commissioner heard evidence from 87 witnesses, including the four officers. On April 30, 2009, the Commissioner issued Notices of Misconduct to the four officers under s. 11 of the Act, advising them that he might make certain findings affecting them in the course of issuing his report on Dziekanski's death. The officers applied for judicial review, seeking to quash the Notices of Misconduct, to prohibit and enjoin the Commissioner from making such findings, and, alternatively, to receive further particulars of the potential findings that could be made against them.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 814, dismissed the application. The officers appealed and sought to adduce new evidence. The Commissioner also applied to adduce new evidence.

The British Columbia Court of Appeal dismissed the applications to adduce new evidence and dismissed the appeal.

Administrative Law - Topic 7912

Public inquiries - Procedural fairness - Notice - On October 14, 2007, Dziekanski, a new arrival to Canada, died in the International Lounge of the Vancouver International Airport - His death followed the deployment of a conducted energy weapon by a Royal Canadian Mounted Police member, one of four officers who responded to a call from the airport for assistance - The Province appointed a Commission (Braidwood) under the Public Inquiry Act (B.C.), to inquire into and report on Dziekanski's death - The Commissioner heard evidence from 87 witnesses, including the four officers - On April 30, 2009, the Commissioner issued Notices of Misconduct to the four officers under s. 11 of the Act, advising them that he might make certain findings affecting them in the course of issuing his report on Dziekanski's death - The officers applied for judicial review, seeking to quash the Notices of Misconduct, to prohibit and enjoin the Commissioner from making such findings, and, alternatively, to receive further particulars of the potential findings that could be made against them - They were unsuccessful - The officers appealed - The British Columbia Court of Appeal held, inter alia, that the failure to provide further particulars did not breach the duty of procedural fairness - There was a statutory duty in s. 11 to provide a notice of misconduct and here the Notice was sufficient to provide the procedural fairness required - See paragraphs 56 to 74.

Administrative Law - Topic 7964

Public inquiries - Powers of - Limitation on grant of powers - On October 14, 2007, Dziekanski, a new arrival to Canada, died in the International Lounge of the Vancouver International Airport - His death followed the deployment of a conducted energy weapon by a Royal Canadian Mounted Police member, one of four officers who responded to a call from the airport for assistance - The Province appointed a Commission (Braidwood) under the Public Inquiry Act (B.C.), to inquire into and report on Dziekanski's death - The Commissioner heard evidence from 87 witnesses, including the four officers - On April 30, 2009, the Commissioner issued Notices of Misconduct to the four officers under s. 11 of the Act, advising them that he might make certain findings affecting them in the course of issuing his report on Dziekanski's death - The officers applied for judicial review, seeking to quash the Notices of Misconduct and to prohibit and enjoin the Commissioner from making such findings -They were unsuccessful - The officers appealed - They submitted, inter alia, that the Notices of Misconduct reflected an exercise in criminal law beyond the jurisdiction of a provincially appointed commission - The British Columbia Court of Appeal rejected the submission - The Notices of Misconduct did not infringe federal jurisdiction over criminal law and procedure - Although the officers' actions were a critical component to understanding the events, the inquiry was neither a discipline investigation nor an inquiry into RCMP policies or training - See paragraphs 25 to 43.

Administrative Law - Topic 7964

Public inquiries - Powers of - Limitation on grant of powers - On October 14, 2007, Dziekanski, a new arrival to Canada, died in the International Lounge of the Vancouver International Airport - His death followed the deployment of a conducted energy weapon by a Royal Canadian Mounted Police member, one of four officers who responded to a call from the airport for assistance - The Province appointed a Commission (Braidwood) under the Public Inquiry Act (B.C.), to inquire into and report on Dziekanski's death - The Commissioner heard evidence from 87 witnesses, including the four officers - On April 30, 2009, the Commissioner issued Notices of Misconduct to the four officers under s. 11 of the Act, advising them that he might make certain findings affecting them in the course of issuing his report on Dziekanski's death - The officers applied for judicial review, seeking to quash the Notices of Misconduct and to prohibit and enjoin the Commissioner from making such findings - They were unsuccessful - The officers appealed - They submitted, inter alia, that the Notices of Misconduct reflected an exercise that interfered with the management or administration of a federally created agency, the Royal Canadian Mounted Police, which was beyond the jurisdiction of a provincially appointed commission - The British Columbia Court of Appeal rejected the submission - The court stated that "... a provincial inquiry may not be engaged as an alternate to the criminal procedures provided by the federal government. Nor may a provincial inquiry trench upon areas of management or administration of a federal agency. However, where such a direct focus or effect is not present, I see no basis on which to curtail what is otherwise a proper inquiry directed by the Province, under the terms of valid provincial legislation enacted under the province's constitutional authority over the administration of justice in the province." - See paragraphs 44 to 54.

Administrative Law - Topic 7969

Public inquiries - Powers of - To make findings of misconduct - [See Administrative Law - Topic 7912 and both Administrative Law - Topic 7964 ].

Administrative Law - Topic 7985

Public inquiries - Judicial review - Scope of review - On October 14, 2007, Dziekanski, a new arrival to Canada, died in the International Lounge of the Vancouver International Airport - His death followed the deployment of a conducted energy weapon by a Royal Canadian Mounted Police member, one of four officers who responded to a call from the airport for assistance - The Province appointed a Commission (Braidwood) under the Public Inquiry Act (B.C.), to inquire into and report on Dziekanski's death - The Commissioner heard evidence from 87 witnesses, including the four officers - On April 30, 2009, the Commissioner issued Notices of Misconduct to the four officers under s. 11 of the Act, advising them that he might make certain findings affecting them, in the course of issuing his report on Dziekanski's death - The officers applied for judicial review, seeking, inter alia, to quash the Notices of Misconduct on jurisdictional grounds - Silverman, J., dismissed the application - The officers appealed - The British Columbia Court of Appeal held that in matters of jurisdiction the standard was, as confirmed in Dunsmuir v. New Brunswick (2008 SCC), correctness, and the reviewing judge applied the proper standard - The question for the Court of Appeal then was whether he was correct in his conclusion that the Notices of Misconduct were within the Commission's constitutional jurisdiction - See paragraph 24.

Administrative Law - Topic 7986.1

Public inquiries - Judicial review - Evidence - [See Practice - Topic 9031 ].

Constitutional Law - Topic 7411

Provincial jurisdiction (s. 92) - Administration of justice (s. 92(14)) - General principles - Law enforcement or police power - [See second Administrative Law - Topic 7964 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - On October 14, 2007, Dziekanski, a new arrival to Canada, died in the International Lounge of the Vancouver International Airport - His death followed the deployment of a conducted energy weapon by a Royal Canadian Mounted Police member, one of four officers who responded to a call from the airport for assistance - The Province of British Columbia appointed a Commission (Braidwood) under the Public Inquiry Act (B.C.), to inquire into and report on Dziekanski's death - The Commissioner heard evidence from 87 witnesses, including the four officers - On April 30, 2009, the Commissioner issued Notices of Misconduct to the four officers under s. 11 of the Act, advising them that he might make certain findings affecting them in the course of issuing his report on Dziekanski's death - The officers applied for judicial review, seeking to quash the Notices of Misconduct, to prohibit and enjoin the Commissioner from making such findings, and, alternatively, to receive further particulars of the potential findings that could be made against them - Silverman, J., dismissed the application - The officers appealed and sought to adduce new evidence - The Commissioner also applied to adduce new evidence - The new evidence was a transcript of some of the proceedings before Silverman, J., and evidence of submissions and further proceedings before the Commissioner subsequent to that hearing, including those addressing the Notices of Misconduct - The British Columbia Court of Appeal dismissed the applications to adduce new evidence - It was not capable of affecting the appeal, which could be fully answered on the record as it now stood - In particular, the court would not rely upon the officers' submissions as evidence that particulars were, or were not, required - To do so was to delve more deeply into the Commission's workings than was appropriate for the court - The appeal had to be resolved on the material that was before Silverman, J. - See paragraphs 12 to 14.

Cases Noticed:

Scott v. Scott (2006), 232 B.C.A.C. 160; 385 W.A.C. 160; 61 B.C.L.R.(4th) 9; 2006 BCCA 504, folld. [para. 13].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 CarswellNB 124; 2008 SCC 9, refd to. [para. 24].

Nelles et al. v. Grange et al. (1984), 3 O.A.C. 40; 46 O.R.(2d) 210; 9 D.L.R.(4th) 79 (C.A.), dist. [para. 27].

Starr et al. v. Houlden, [1990] 1 S.C.R. 1366; 110 N.R. 81; 41 O.A.C. 161; 68 D.L.R.(4th) 641, dist. [para. 27].

O'Hara and Kirkbride v. British Columbia, [1987] 2 S.C.R. 591; 80 N.R. 127; 45 D.L.R.(4th) 527, refd to. [para. 28].

Canada (Attorney General) et al. v. Royal Commission of Inquiry on the Blood System in Canada et al., [1997] 3 S.C.R. 440; 216 N.R. 321; 151 D.L.R.(4th) 1, refd to. [para. 28].

Krever Inquiry - see Canada (Attorney General) et al. v. Royal Commission of Inquiry on the Blood System in Canada et al.

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1; 124 D.L.R.(4th) 129, refd to. [para. 28].

Phillips v. Nova Scotia (Commission of Inquiry in the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

Consortium Developments (Clearwater) Ltd. v. Sarnia (City) et al., [1998] 3 S.C.R. 3; 230 N.R. 343; 114 O.A.C. 92; 165 D.L.R.(4th) 25, refd to. [para. 28].

Keable and Quebec (Attorney General) v. Canada (Attorney General), [1979] 1 S.C.R. 218; 24 N.R. 1; 90 D.L.R.(3d) 161, refd to. [para. 45].

Alberta (Attorney General) v. Putnam, [1981] 2 S.C.R. 267; 37 N.R. 1; 28 A.R. 387; 123 D.L.R.(3d) 257, dist. [para. 45].

Di Iorio and Fontaine v. Warden of the Common Jail of Montreal (City), [1978] 1 S.C.R. 152; 8 N.R. 361; 73 D.L.R.(3d) 491, refd to. [para. 46].

Faber v. Québec (Procureur général) et Québec (Ministre de la Justice) et autres, [1976] 2 S.C.R. 9; 6 N.R. 1 (Fr.); 8 N.R. 29 (Eng.); 65 D.L.R.(3d) 423, refd to. [para. 46].

R. v. Coote (1873), L.R. 4 P.C. 599, refd to. [para. 46].

Morneault v. Canada (Attorney General) (1998), 150 F.T.R. 28; 10 Admin. L.R.(3d) 251 (F.C.), revd. in part [2001] 1 F.C. 30; 256 N.R. 85; 189 D.L.R.(4th) 96 (F.C.A.), refd to. [para. 58].

Martin et al. v. Vancouver (City) (2008), 255 B.C.A.C. 157; 430 W.A.C. 157; 293 D.L.R.(4th) 37; 2008 BCCA 197, dist. [para. 60].

Counsel:

D. Butcher and A. Srivastava, for the appellant, Cst. Bentley;

R. Hira, Q.C., and B. Morley, for the appellant, Cst. Millington;

G. Beaubier, for the appellant, Cst. Rundel;

P. McGowan and A. Vertlieb, Q.C., for the respondent, T. Braidwood, Q.C.;

C. Jones and K. Wolfe, for the respondent, Attorney General of British Columbia.

These applications and appeal were heard at Vancouver, B.C., on December 4, 2009, by Saunders, Chiasson and Groberman, JJ.A., of the British Columbia Court of Appeal. Saunders, J.A., delivered the following decision for the court on December 29, 2009.