Secord et al. v. Board of Police Commissioners of Saint John,

• Jurisdiction: New Brunswick
• Judge: Glennie, J.
• Neutral Citation: 2006 NBQB 65
• Citation: (2006), 300 N.B.R.(2d) 202 (TD),2006 NBQB 65,300 NBR (2d) 202,43 Admin LR (4th) 218,300 NBR(2d) 202,(2006), 300 NBR(2d) 202 (TD),300 N.B.R.(2d) 202
• Date: 10 August 2005
• Court: Court of Queen's Bench of New Brunswick (Canada)

Secord v. Police Commrs. Bd. (2006), 300 N.B.R.(2d) 202 (TD);

    300 R.N.-B.(2e) 202; 782 A.P.R. 202

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2006] N.B.R.(2d) TBEd. MR.017

Constable Dean Secord and Sergeant David Arsenault (applicants) v. Saint John Board of Police Commissioners (respondent)

(S/M/25/05; 2006 NBQB 65)

Indexed As: Secord et al. v. Board of Police Commissioners of Saint John

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Glennie, J.

February 2, 2006.

Summary:

The Saint John Chief of Police appointed a lawyer with previous police experience as a police officer pursuant to the Police Act (N.B.). The Chief then authorized in writing the lawyer "and member of the Saint John Police Force" (the adjudicator) to hold a disciplinary hearing relating to the conduct of two police officers. The two officers challenged the adjudicator's jurisdiction on the ground that he was not a police officer.

The adjudicator made a preliminary ruling rejecting the challenge. The two police officers applied for judicial review.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the applica­tion.

Administrative Law - Topic 2618

Natural justice - Evidence and proof - Judicial notice - [See second Police - Topic 9 ].

Administrative Law - Topic 3210

Judicial review - General - Jurisdictional issues - [See Administrative Law - Topic 3303 and Administrative Law - Topic 3348 ].

Administrative Law - Topic 3303

Judicial review - General - Bars - Appeal or review available - An adjudicator ap­pointed to hear a disciplinary complaint against two police officers made a prelimi­nary ruling that he had jurisdiction to hear the matter - The police officers sought judicial review - The police board argued that the officers had an alternate remedy available, namely, an appeal at the end of the disciplinary hearing pursuant to s. 30 of the Police Act (N.B.) - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, rejected the argument - An appeal under s. 30 was not an adequate alternative remedy - Since the issue was the adjudi­cator's jurisdiction, the officers ought not to be compelled to engage in what could be an unnecessary appeal process - They should be able to proceed directly to the court to have the jurisdictional issue re­solved - See paragraphs 31 to 46.

Administrative Law - Topic 3348

Judicial review - General - Practice - Time for application - An adjudicator appointed to hear a disciplinary complaint against two police officers made a preliminary ruling that he had jurisdiction to hear the matter - The police officers sought judicial review - The police board argued that the application was premature - The New Brunswick Court of Queen's Bench, Trial Division, rejected the argument - Since the issue here involved an attack on the very existence of the adjudicator, there was special reason permitting judicial review at this stage - See paragraphs 12 to 30.

Police - Topic 8

General - Appointment of police officers - General principles - The New Brunswick Court of Queen's Bench, Trial Division, discussed the appointment of police offi­cers under the Police Act (N.B.) - The court stated that the Act contemplated that once an individual was qualified to be a police officer, very little was necessary for a valid appointment - There was no re­quirement for a formal appointment pro­cess - Nor was there a requirement for an appointment to be evidenced in writing - The only stipulation was that the officer be appointed by someone authorized to ap­point, namely, a police board or the chief of police - See paragraphs 109 to 119.

Police - Topic 8

General - Appointment of police officers - General principles - The Saint John Chief of Police determined that a lawyer with previous police experience would be ap­pointed as a police officer under the Police Act (N.B.) and would be authorized to hold a disciplinary hearing relating to the conduct of two police officers - Pursuant to s. 28(3)(b) of the Act, the Chief au­thorized in writing the lawyer "and mem­ber of the Saint John Police Force" (the adjudicator) to hold the disciplinary hear­ing - The adjudicator was subsequently sworn in as a police officer - The New Brunswick Court of Queen's Bench, Trial Division, ruled that the adjudicator fell within the definition of "police officer" under s. 1 of the Act.

Police - Topic 9

General - Appointment of police officers - Evidence and proof - The Saint John Chief of Police issued an "Authorization to Hold a Hearing" (the Authorization) which authorized a lawyer "and member of the Saint John Police Force" (the adjudicator) to hold a disciplinary hearing - The adjudi­cator's jurisdiction was challenged on the grounds that he was not a police officer - The adjudicator dismissed the challenge - The adjudicator held that, according to s. 2.1(1) of the Police Act (N.B.), there was prima facie proof before him, in the form of a certificate entitled "Authorization to Hold a Hearing", that he was a police officer - The adjudicator found that, absent evidence to contradict the contents of the Chief's certificate to him, he was a police officer under the Act - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, held that the adjudicator was correct in holding that the Authorization was a certificate - See paragraphs 58, 123 to 141.

Police - Topic 9

General - Appointment of police officers - Evidence and proof - Two police officers subject to a disciplinary hearing challenged the adjudicator's jurisdiction on the grounds that he was not a police officer - They argued that the adjudicator did not meet the basic requirements to be a police officer - In particular, the officers com­plained that a criminal records check had not been made - The adjudicator rejected the challenge, stating that he had no crim­inal record - The officers applied for judi­cial review, arguing that the adjudicator had improperly taken judicial notice of his absence of criminal record - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application, ruling that the adjudicator was entitled to take judicial notice that he had no criminal record - See paragraphs 142 to 152.

Police - Topic 345

Members - Eligibility - Disqualifications - Criminal conviction - [See second Police - Topic 9 ].

Police - Topic 4142

Internal organization - Discipline - Boards - Constitution of board - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, held that there was no question that only a "police officer" could be appointed to adjudicate a disciplinary hearing pursu­ant to s. 28(3) of the Police Act (N.B.) - See paragraphs 107 and 108.

Police - Topic 4142

Internal organization - Discipline - Boards - Constitution of board - The Saint John Chief of Police appointed a lawyer with previous police experience as a police officer under the Police Act (N.B.) - Pur­suant to s. 28(3)(b), the Chief authorized in writing the lawyer "and member of the Saint John Police Force" to hold a disci­plinary hearing relating to the conduct of two police officers - The two officers argued that they were entitled to be judged by one of their peers, i.e., an active mem­ber of a police force - The New Brunswick Court of Queen's Bench, Trial Division, rejected the argument - Nothing in the Police Act or Regulations provided that a police officer had to be judged by a fellow active member of a police force - See paragraphs 153 to 165.

Police - Topic 4162

Internal organization - Discipline - Appeals and judicial review - When available - [See Administrative Law - Topic 3303 and Administrative Law - Topic 3348 ].

Police - Topic 4163

Internal organization - Discipline - Appeals and judicial review - Jurisdiction - The Saint John Chief of Police determined that a lawyer with previous police experience would be appointed as a police officer under the Police Act (N.B.) and would be authorized to hold a disciplinary hearing relating to the conduct of two police offi­cers - Pursuant to s. 28(3)(b) of the Act, the Chief authorized in writing the lawyer "and member of the Saint John Police Force" (the adjudicator) to hold the disci­plinary hearing - The adjudicator was subsequently sworn in as a police officer - The two police officers challenged the adjudicator's jurisdiction on the ground that he was not a police officer - The adjudicator rejected the challenge, holding that he was a police officer - The New Brunswick Court of Queen's Bench, Trial Division, upheld the decision.

Police - Topic 4173

Internal organization - Discipline - Appeals and judicial review - To court - Scope or standard of review - An adjudicator was appointed pursuant to the Police Act (N.B.) to hear a disciplinary complaint against two police officers - The adjudicator made a preliminary ruling that he was a police officer within the meaning of the Act, was appointed as such and, as a result, was properly appointed as an adjudicator and had jurisdiction to hear the complaint - The two police officers applied for judicial review - The New Brunswick Court of Queen's Bench, Trial Division, ruled that in determining whether he was a police officer and properly appointed pursuant to the Act, the adjudicator was required to correctly determine whether he was a police officer - See paragraphs 59 to 96.

Police - Topic 4267

Internal organization - Discipline - Proce­dure - Evidence and proof - [See second Police - Topic 9 ].

Cases Noticed:

Szczecka v. Ministre de l'Emploi et de l'Immigration (1993), 170 N.R. 58; 116 D.L.R.(4th) 333 (F.C.A.), consd. [para. 13].

University of Toronto v. Canadian Union of Education Workers, Local 2 (1988), 28 O.A.C. 295; 65 O.R.(2d) 268 (Div. Ct.), consd. [para. 15].

Tyndall v. Sheet Metal Workers' Interna­tional Association, Sheeters, Deckers & Cladders Section, Local 511 (1998), 126 Man.R.(2d) 39; 167 W.A.C. 39; 1998 CarswellMan 46 (C.A.), consd. [para. 16].

Cannon v. Royal Canadian Mounted Police (Assistant Commissioner), [1998] 2 F.C. 104; 139 F.T.R. 91 (T.D.), consd. [para. 23].

Air Canada v. Lorenz et al., [2000] 1 F.C. 494; 175 F.T.R. 211 (T.D.), consd. [para. 25].

Board of Education of District No. 15 v. Human Rights Board of Inquiry (N.B.) (1989), 100 N.B.R.(2d) 181; 252 A.P.R. 181; 62 D.L.R.(4th) 512 (C.A.), consd. [para. 28].

Board of School Trustees, District No. 15 v. New Brunswick (Minister of Labour) - see Board of Education of District No. 15 v. Human Rights Board of Inquiry (N.B.).

Violette v. New Brunswick Dental Society (2004), 267 N.B.R.(2d) 205; 702 A.P.R. 205 (C.A.), consd. [para. 32].

Spence v. Spencer and Prince Albert Board of Police Commissioners (1987), 53 Sask.R. 35 (C.A.), refd to. [para. 34].

Dubé v. Bolduc et al. (1997), 194 N.B.R.(2d) 135; 496 A.P.R. 135; 1997 CarswellNB 609 (T.D.), consd. [para. 35].

Dubé v. Edmundston (Municipality) Police Force - see Dubé v. Bolduc et al.

Kingsbury v. Heighton et al. (2003), 216 N.S.R.(2d) 277; 680 A.P.R. 277; 230 D.L.R.(4th) 654 (C.A.), refd to. [para. 39].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325 (S.C.C.), refd to. [para. 42].

Montgomery v. Edmonton Police Service et al. (1999), 253 A.R. 222; 1999 Cars­wellAlta 1114 (Q.B.), refd to. [para. 43].

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration) (1998), 226 N.R. 201; 1998 CanLII 778 (S.C.C.), consd. [para. 59].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, consd. [para. 59].

Dr. Q. v. College of Physicians and Sur­geons (B.C.) - see Dr. Q., Re.

International Union of Operating Engi­neers, Local 894 v. Smurfit-Stone Con­tainer (Canada) Inc. (2004), 271 N.B.R.(2d) 340; 712 A.P.R. 340; 2004 CarswellNB 67 (T.D.), refd to. [para. 64].

Syndicat canadien de la Fonction publique, section locale 1773 v. Shediac (Ville) (2005), 280 N.B.R.(2d) 324; 734 A.P.R. 324; 2005 CarswellNB 86 (C.A.), consd. [para. 66].

Executive Director of Assessment (N.B.) v. Ganong Bros. Ltd. et al. (2004), 271 N.B.R.(2d) 43; 712 A.P.R. 43; 240 D.L.R.(4th) 687 (C.A.), consd. [para. 67].

Bouhamdani v. Association of Professional Engineers and Geoscientists of New Brunswick (2004), 276 N.B.R.(2d) 341; 724 A.P.R. 341; 2004 CarswellNB 544 (C.A.), consd. [para. 68].

Zenner v. College of Optometrists (P.E.I.) (2005), 342 N.R. 176; 254 Nfld. & P.E.I.R. 1; 764 A.P.R. 1; 2005 Carswell­PEI 88 (S.C.C.), consd. [para. 70].

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Regina (2000), 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23; 2000 CarswellSask 90 (S.C.C.), consd. [para. 81].

New Brunswick (Board of Management) v. Doucet-Jones (2004), 274 N.B.R.(2d) 237; 718 A.P.R. 237; 2004 CarswellNB 421 (C.A.), consd. [para. 88].

Roussel-Landry v. Workplace Health, Safety and Compensation Commission (N.B.) (2005), 289 N.B.R.(2d) 94; 753 A.P.R. 94; 2005 CarswellNB 469 (C.A.), refd to. [para. 91].

Weir v. Canada (Attorney General) (1991), 119 N.B.R.(2d) 337; 300 A.P.R. 337; 1991 CarswellNB 395 (C.A.), dist. [para. 92].

Lincoln (County) Roman Catholic Separate School Board v. Buchler, 1972 Carswell­Ont 866 (C.A.), dist. [para. 93].

R. v. Anderson (F.) (1982), 44 N.B.R.(2d) 347; 116 A.P.R. 347 (Prov. Ct.), consd. [para. 115].

Beaulieu v. New Brunswick (2003), 266 N.B.R.(2d) 338; 698 A.P.R. 338 (C.A.), consd. [para. 122].

R. v. Sprague's Well Drilling Ltd., 1987 CarswellNS 533 (Co. Ct.), consd. [para. 127].

Echo Bay Mines Ltd. v. Marren, 1997 CarswellNWT 34 (S.C.), affd. 2000 CarswellNWT 59 (C.A.), consd. [para. 129].

R. v. Keeley (1988), 92 A.R. 303; 1988 CarswellAlta 207 (Prov. Ct.), refd to. [para. 130].

Director of Investigation and Research, Competition Act et al. v. Air Canada et al. (1993), 157 N.R. 258; 1993 Carswell­Nat 235 (F.C.A.), consd. [para. 131].

R. v. Sack (1976), 18 N.S.R.(2d) 181; 20 A.P.R. 181; 1976 CarswellNS 165 (C.A.), refd to. [para. 133].

Bois v. McDonald, 1975 CarswellAlta 65 (C.A.), refd to. [para. 135].

Innisfil (Township) v. Vespra (Township); South Simco Estates et al., [1981] 2 S.C.R. 145; 37 N.R. 43, refd to. [para. 148].

R. v. Schiff et al.; Ex parte Trustees of Ottawa Civic Hospital, [1970] 3 O.R. 476 (C.A.), refd to. [para. 149].

Commonwealth Shipping Representative v. Peninsular & Oriental Branch Service, [1923] A.C. 191 (H.L.), consd. [para. 151].

R. v. Potts (1982), 36 O.R.(2d) 195 (C.A.), refd to. [para. 151].

Carlisle v. Fredericton (City) (1995), 166 N.B.R.(2d) 161; 425 A.P.R. 161 (T.D.), consd. [para. 155].

Charlebois v. Saint John (City) (2005), 342 N.R. 203; 292 N.B.R.(2d) 1; 761 A.P.R. 1; 2005 CarswellNB 710 (S.C.C.), consd. [para. 162].

Statutes Noticed:

Discipline Regulation - see Police Act Regulations (N.B.).

Police Act, S.N.B. 1977, c. P-9.2, sect. 1, sect. 2.1(1), sect. 10(1), sect. 10(2) [para. 49]; sect. 28(3)(b) [para. 50].

Police Act Regulations (N.B.), Discipline Regulation, Reg. 84-49, sect. 2 [para. 52].

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada (2nd Ed. 1997), p. 53 [para. 104].

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada, pp. 3-18, 3-19 [para. 41].

Ceyssens, Paul, Legal Aspects of Policing (1994) (2002 Looseleaf Update), para. 5.3(a) [para. 24].

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (4th Ed. 2004), generally [para. 148]; p. 291 [para. 147].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 1055 [para. 146].

Counsel:

Vicky Smith, for the applicants;

James F. LeMesurier, for the respondent.

This application was heard on August 10, 2005, by Glennie, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision orally on February 2, 2006.