Date: 20000509
Docket: A-508-98
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
ALEXANDER JAWORSKI
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Toronto, Ontario, on Monday, March 20, 2000.
Judgment delivered at Ottawa, Ontario, on May 9, 2000.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: DÉCARY J.A.
SEXTON J.A.
Date: 20000509
Docket: A-508-98
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
ALEXANDER JAWORSKI
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
Dismissal from employment for misconduct normally has very serious consequences for the individual concerned, and his or her family. It may cause an immediate and future loss of income, including pension and other benefits, and can inflict reputational damage that results in both further financial loss, and social and psychological harm.
In recognition of the grave consequences of dismissal for misconduct or incompetence Dickson J. (as he then was) said in Kane v. University of British Columbia, [1980] 1 S.C.R. 1105 at 1113:
| A high standard of justice is required when the right to continue in one"s profession or employment is at stake. |
In February 1997 Constable Alexander Jaworski, a married man with four children, was dismissed from the RCMP after being found to have conducted himself in a disgraceful manner that brought discredit to the Force. He had been identified by a witness as the man she had seen masturbating at the corner of an alley and the street where she lived. Constable Jaworski has always denied that he was the man, and claims to have been the victim of misidentification.
The principal question raised by this appeal is whether, on the evidence before him, including identification evidence based on a flawed process, it was open to the RCMP Commissioner to find that there was clear and cogent evidence to justify the appellant"s dismissal from the Force for misconduct that could have been the subject of criminal proceedings.
The matter comes before us on appeal from a decision of Rothstein J. (as he then was) ([1998] 4 F.C. 154 (F.C.T.D.)) dismissing an application for judicial review to set aside the decision of the Commissioner requiring Constable Jaworski to resign within 14 days, failing which he would be dismissed. Constable Jaworski refused to resign and was accordingly dismissed.
In making this decision, the Commissioner confirmed the decision of an adjudication board and did not accept the report of the External Review Committee which had found palpable and overriding error in the board"s findings of fact, particularly with regard to the identification of the appellant as the man whom the witness had seen masturbating in public view.
The provisions of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 relevant to this appeal (especially section 45.1) require a hearing to be held by an adjudication board comprised of three officers, including one who is a graduate of an accredited law school. The hearing is of a relatively formal adjudicative nature, although, subject to exceptions not relevant here, the board may admit on oath or affidavit such evidence or information as it sees fit, "whether such evidence or information is or would be admissible in a court of law": sections 45 and 24.1(3)(c ).
There is an appeal from a decision of the board to the Commissioner on any of its findings or on the sanction imposed: section 45.14. However, before the Commissioner considers an appeal the Commissioner must normally refer the case to the External Review Committee: section 45.15(1). In considering the appeal the Commissioner must take into account the record of the hearing before the board, the statement of appeal, any additional written submissions and the findings or recommendations, if any, contained in the Committee"s report.
The Commissioner may dismiss the appeal and confirm the decision under appeal, or allow the appeal and either vary or rescind the sanction imposed, or order a new hearing before an adjudication board.
The Commissioner is required to provide a written decision, with reasons.
45.16(5) The Commissioner shall as soon as possible render a decision in writing on an appeal, including reasons for the decision, and serve each of the parties to the hearing before the adjudication board whose decision was appealed and, if the case has been referred to the Committee pursuant to section 45.15, the Committee Chairman with a copy of the decision.
(6) The Commissioner is not bound to act on any findings or recommendations set out in a report with respect to a case referred to the Committee under section 45.15, but if the Commissioner does not so act, the Commissioner shall include in the decision on the appeal the reasons for not so acting.
45.16(5) Le commissaire rend, dans les meilleurs délais, une décision écrite et motivée sur tout appel dont il est saisi, et il en signifie copie à chacune des parties à l'audience tenue devant le comité d'arbitrage dont la décision a été portée en appel, ainsi qu'au président du Comité lorsque l'affaire a été renvoyée devant le Comité conformément à l'article 45.15.
(6) Le commissaire n'est pas lié par les conclusions ou les recommandations contenues dans un rapport portant sur une affaire qui a été renvoyée devant le Comité conformément à l'article 45.15; s'il choisit de s'en écarter, il doit toutefois motiver son choix dans sa décision.
Finally, subject to a power in the Commissioner to vary or rescind a Commissioner"s decision in certain circumstances (subsection 45.16(8)), subsection 45.16 provides that:
| (7) A decision of the Commissioner on an appeal under section 45.14 is final and binding and, except for judicial review under the Federal Court Act, is not subject to appeal to or review by any court. |
(7) La décision du commissaire portant sur un appel exécutoire et, sous réserve du contrôle judiciaire prévu par la Loi sur la Cour fédérale, n'est pas susceptible d"appel ou de révision en justice. |
| B. THE EVIDENCE |
(i) the incident
When going to the corner store on the evening of March 30, 1994, Ms. Hutcheon, who was then 25 years old and a student at the University of Toronto, noticed a man walking along the street who appeared to be staring at her. When she looked over her shoulder she saw him starting to climb the fence into the backyard behind her apartment in midtown Toronto on the corner of Ulster Street and Markham Street, one block west of Bathurst Street. They were about four car lengths apart and stared at each other for approximately ten seconds; she found his stare aggressive, and looked away. He did not climb the fence and she went on to the store.
On her return a few minutes later, at approximately a quarter to nine, she saw the same man from across the road, this time two car lengths away from her, masturbating with his pants down while standing at the entrance to an alley on Markham Street, half a block west of Bathurst Street. Although his face was partially covered by the jacket, which was pulled up like a hood, she could see his eyes and he looked at her for two or three seconds before taking a step towards her.
Alarmed, she ran the remaining half block to her apartment, where she told a roommate of the encounter. A call to the police was made and Ms. Hutcheon described to the operator the incident and the man concerned.
Officers from the Metropolitan Toronto Police arrived on the scene no more than five minutes after the call was made. There they came across the appellant, Alexander Jaworski. No one else was in sight in the immediate vicinity. The police officers asked Constable Jaworski, who was off duty and not in uniform, to identify himself, which he did by showing them his badge.
(ii) identification
Ms. Hutcheon testified that she believed that she had told the emergency operator that the man in question was white, about 5'6"or 5' 9" in height with dark receding hair and wearing a grey or green army-style jacket. On the arrival of the police, Constable Matthews of the Metropolitan Toronto Police went to Ms. Hutcheon"s apartment. He recorded her description of the perpetrator as a male, white, five feet six inches tall, hooded jacket, loose fitting, 35-40 years old, and grey or green pants, possibly balding.
Another officer, Constable Diaz, had recorded from the dispatcher that Ms. Hutcheon had described the man as wearing a "grey top", while a third officer, Constable Murphy, testified that the original description had been of a "grey hooded sweat top". However, Constable Jaworski was told by the police when they first saw him that they were looking for someone wearing a green jacket, which he was.
One of the other officers then told Ms. Hutcheon that the police had a man who matched the description that she had given. She was asked to come outside to see him, which she reluctantly did. On first seeing Constable Jaworski, who was surrounded by Metro Toronto police officers, Ms. Hutcheon said that she thought that he was the man whom she had seen earlier that evening, but added that she could not be 100% sure. She expressed concern that he might be a family man and that the incident could have serious consequences for him.
On May 11, 1996, some six weeks later, the Metro police showed Ms. Hutcheon eight head and shoulders photographs of men with moustaches and asked her to identify the man whom she had seen exposing himself and masturbating. She was told to put out of her mind her recollection of the man whom she had seen with the police on the evening of the incident in question.
Ms. Hutcheon picked out the photograph of Constable Jaworski as the one that looked most like the man she had seen masturbating. Again, she told the officer with her that she was not absolutely sure that she had picked out the right man, because, as she said, "I looked at him, but I wasn"t thinking to remember his face." The photographs all showed men with moustaches, although she had not previously mentioned that the man she had seen had a moustache.
At the hearing in early December 1996 before the adjudication board, Ms. Hutcheon again identified Constable Jaworski, although she testified that she had not expected to be able to do so. The hearing was held some twenty months after she had first identified him on the night of the incident.
She also testified that when she had first been asked to identify the perpetrator on the night of the incident, she had been sure that he was the man, but she had not said so because she was nervous and was concerned about the effect on him if he were a family man.
In some respects, the descriptive identification initially provided by Ms. Hutcheon closely matched the board"s observation of Constable Jaworski: male, white, in his forties, dark hair and receding hairline. In other respects it did not: in particular, he is practically 6', not 5'6" or 5'9". In addition, on the night of the incident he was wearing a green army-style jacket with a hood that was rolled up that night and not visible, not, as Ms. Hutcheon was recorded by a police officer as having said, a grey hooded sweat shirt. As we have seen, however, there was some confusion in the evidence about this matter. An officer also said that Ms. Hutcheon had described the suspect as wearing grey or green pants, whereas his pants were black. In fact, Ms. Hutcheon seems simply to have said that he was not wearing blue jeans.
Ms. Hutcheon testified before the adjudication board that she could not understand why she would have said that the man she had seen was 5'6", since this was her height and she was sure that he was taller than she was. She added that when she had seen the man masturbating, his head was bent down. She also told the board that she was confident that the man had been wearing a green jacket and that when she saw him masturbating he had the jacket pulled partially over his head like a hood
(iii) the circumstantial evidence
When the police encountered Constable Jaworski and asked him some questions, he identified himself, although he was somewhat belligerent towards one of the officers and generally uncooperative. In response to further questions about what he was doing there, Constable Jaworski said that he was looking for a man whom he had seen looking into his car which was parked behind his house.
The officers regarded this as an implausible explanation, as did the adjudication board, which rejected it as "improbable bordering on the bizarre". The details of the story are not relevant here because the board"s finding of implausibility is not contested. However, the appellant"s statement that he had consumed two bottles of wine with a friend earlier that evening was confirmed by the strong smell of alcohol on his breath. In addition, the police accepted that, as he told them, he lived nearby.
The officers who interviewed Constable Jaworski at the scene of the incident also reported that the top button of his pants was undone, something that he subsequently denied.
Finally, there was some evidence about the vicinity where the incident occurred. It was in midtown Toronto, less than a block from Bathurst Street, which was described as a fairly busy street. The officers testified that on arrival they had looked up and down Ulster Street, and had seen no one, nor was any other male seen while the police were interviewing Constable Jaworski. Markham Street and Ulster Street are urban residential streets and popular with students because of their location close to the University.
| C. THE BOARD"S DECISION |
The adjudication board stated at the outset of its lengthy decision that the principles applied to identification evidence in criminal proceedings were applicable to this discipline proceeding, although the standard of proof was lower, namely the balance of probabilities. However, because of the potential seriousness of the board"s decision, Constable Jaworski would only be found guilty of misconduct if the evidence was clear and convincing.
The board noted that it had both to assess the credibility of Ms. Hutcheon, and to "examine the identification process to determine whether it was flawed so as to render the result unreliable" (Appeal Book, p. 66). The board then described the three occasions on which Ms. Hutcheon had identified Constable Jaworski and stated that, in assessing the weight to be given to the identifications at the photo line-up and at the hearing, it had to consider the possibility that these may have been influenced by the first identification: that is, when Constable Jaworski "was detained and in a setting where he was the only suspect surrounded by uniformed police officers, and not in a police lineup" (Appeal Book, p. 68).
The board returned to this point when it said that its biggest concern with Ms. Hutcheon"s identification evidence was whether it "was based on her observations of the alleged incidents, or whether it was based on her subsequent observations of the suspect detained by the police" (Appeal Book, p. 70).
In considering the reliability of the descriptive evidence given by Ms. Hutcheon, the board noted that, while it contained certain discrepancies, it was also accurate in some important respects. The board was favourably impressed with Ms. Hutcheon"s credibility as a witness: having shown herself to be mindful of both the serious consequences for Constable Jaworski if she misidentified him, and her lack of absolute certainty, she nonetheless identified him on three separate occasions.
The board considered that Ms. Hutcheon"s identification evidence was supported by the circumstantial evidence, including the unlikelihood that a person similar in appearance to the person described by the witness would be found, very shortly after the report was received, at the place where the incident occurred, which was apparently a "lightly travelled area" since the officers seemed to have seen no one else while they were there. The board also referred to the undone button, Constable Jaworski"s evident consumption of alcohol, his lack of cooperation with at least one of the officers, his inability to provide a plausible account of his presence on the street, except that he lived about two blocks away, and his failure to ask the officers why he was being detained.
The board assessed the credibility of the witnesses. It considered Ms. Hutcheon a credible witness, although it also noted the possibility that she could be honest but mistaken. In contrast, it regarded Constable Jaworski as non-credible, based largely on the implausible explanation that he gave for his presence on the street and his demeanour at the hearing.
While acknowledging that the identification of Constable Jaworski had not been "procedurally perfect" (Appeal Book, p. 74), and "after exercising due caution and closely examining the circumstances in which the identification was made", the board concluded that the totality of the evidence constituted clear and convincing proof of the identification of the appellant as the person observed by Ms. Hutcheon.
| D. THE EXTERNAL REVIEW COMMITTEE |
As required by the Royal Canadian Mounted Police Act, subsection 45.15(1), the board"s decision was referred by the Commissioner to the External Review Committee which reviewed it on the basis of the evidence that had been before the board, together with some additional documents provided by the Force. The Committee, which comprised Ms. F. Jennifer Lynch, Q.C., did not conduct an oral hearing.
Under the statutory provisions dealing with RCMP discipline proceedings, the Committee does not have formal decision-making powers. Nonetheless, its meticulous review of the board"s evidence and reasoning provides a valuable critique of the decision. The Committee produced a report of more than fifty pages in length, in which Ms. Lynch concluded that, since the board had committed palpable and overriding error in some of its findings of fact and had erred in law, the Commissioner should not uphold its decision. The Committee helpfully summarised its criticisms as follows (Appeal Book, p. 159).
First, the board had shown itself insufficiently aware of the frailty of the initial identification by Ms. Hutcheon at the "one man show-up" when Constable Jaworski was being detained by the Metro Toronto police officers, and should explicitly have stated that it could attach at most only minimal weight to this evidence. It had also failed to refer to some important qualifications made by Ms. Hutcheon at the photo line-up.
Second, the board did not properly take account of Ms. Hutcheon"s evidence that she could see only the eyes of the man who was masturbating because his face was partially covered by his jacket.
Third, the board minimised the significance of the inconsistencies in her description of what the man was wearing and of her error in estimating his height.
Fourth, the board made a finding of fact that was unsupported by the evidence when it concluded that the area where the incident occurred was "lightly travelled", whereas the evidence was that it took place in midtown Toronto, less than a block west of Bathurst Street, a "busy street"; there was no evidence about the very street on which the incident occurred. The board accordingly put too much weight on Constable Jaworski"s presence as evidence that he was the man who had been seen by Ms. Hutcheon a few minutes before.
The Committee concluded that there was not the clear and convincing evidence needed to justify the board"s decision. The board both made palpable and overriding errors of fact and committed an error of mixed law and fact when it failed to give appropriate emphasis either to the inherent unreliability of identification evidence based on improperly conducted show-ups, or to Ms. Hutcheon"s uncertainty when she was asked to identify Constable Jaworski on the night of the incident and when she was subsequently shown the photographs.
| E. THE COMMISSIONER"S DECISION |
The board"s decision then came before the Commissioner on appeal. In a written decision of twenty-one pages in length the Commissioner dismissed the appeal. The first twenty pages of the decision comprise a summary of the evidence, the board"s conclusions and the Committee"s report, including a careful explanation of each of the points on which Ms. Lynch believed the board had erred.
The Commissioner"s reasons for confirming the decision of the board are found on the last page of his decision. After rehearsing the advantages enjoyed by the tribunal that hears and sees the witnesses and noting that the board took account of the shortcomings in the evidence, the Commissioner concluded (Appeal Book, p. 182):
| Based on the totality of the evidence before it, the Board was satisfied in a clear and convincing manner that on the balance of probability, Cst. Jaworski was responsible for the alleged act. |
He added that
| the Board had carefully weighed all the evidence, both eyewitness and circumstantial, and concluded that no other reasonable conclusion could be reached but that the Appellant was responsible.... |
And that
| Taken together, the board, in my view, reasonably concluded that the Appellant lacked credibility. |
| F. THE DECISION OF THE TRIAL DIVISION JUDGE |
On the application for judicial review before the Motions Judge to quash the Commissioner"s decision three issues were argued, of which only two are still relevant: whether the evidence satisfied the "clear and convincing" standard, and whether the Commissioner had discharged his statutory duty to provide reasons for his decision. Rothstein J. decided both in favour of the Commissioner.
On the first issue, the Motions Judge agreed that the principles developed in criminal law on identification evidence were relevant in this case, and that the applicable standard of proof was that the evidence must be "clear and cogent" or "clear and convincing". He concluded that the board"s decision, which the Commissioner in effect adopted, contained no reviewable error: it had neither ignored or misunderstood evidence, nor ignored or breached any rule of law. Rather, the board had considered the eyewitness and circumstantial evidence as a whole, including its limitations and, in its final determination, had made a reasonable subjective assessment of it.
As to the sufficiency of the Commissioner"s reasons for decision, Rothstein J. regretted that the analysis section was quite as terse as it was. However, he concluded that the reasons were adequate in all the circumstances: in particular, the inclusion of lengthy synopses of the parties" positions, the board"s decision and the Committee"s findings, and the basis of the Commissioner"s decision, namely that the board"s decision should be confirmed on the totality of the evidence.
Rothstein J. considered a third issue, namely whether the adjudication board breached the duty of fairness when it made a site visit at the request of the parties, and used its observation of the site to throw into doubt an aspect of Constable Jaworski"s evidence, without first giving him an opportunity to respond. Rothstein J. rejected this argument and it was not pursued at the hearing of the appeal.
| G. ISSUES AND ANALYSIS |
| Issue 1: Did the Commissioner commit a reviewable error in deciding that the evidence before the adjudication board was "clear and convincing", and thus satisfied the legal standard of proof? |
(i) standard of review
To the extent that the appellant is impugning the Commissioner"s findings of fact, including the ultimate fact of whether the evidence was "clear and convincing", the standard of review is that set out in paragraph 18.1(4)(d ) of the Federal Court Act, R.S.C. 1985, c. F-7. That is, the appellant must establish that the tribunal
based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
It is relevant to note that this was not the standard applied by the Committee to the board"s findings of fact. Ms. Lynch carefully and, in my view, correctly distinguished the narrow, "no evidence" standard of review of administrative findings of fact typically applied by a court in the exercise of its supervisory jurisdiction, from the more demanding appellate standard of overriding and palpable error. Her conclusion that the board"s findings of fact did not satisfy the appellate standard does not necessarily mean that they would fall short of the supervisory standard, even that prescribed by paragraph 18.1(4)(d ) which is normally regarded as somewhat more rigorous than the "no evidence" standard of the common law.
To the extent that the appellant"s challenge to the Commissioner"s decision rests on the board"s appreciation, or application in this context, of the principles governing identification evidence, a more rigorous standard than that applied to findings of fact would be appropriate. However, since I do not think that the adjudication board erred in this respect, I need not be more specific.
(ii) the findings of fact
As far as the circumstantial evidence is concerned, counsel for the appellant adopted the Committee"s conclusion that there was no evidence to support the board"s finding that the area where the incidents occurred was "lightly travelled" if this was intended to refer to the immediate area of the Ulster-Markham intersection. However, if the "area" were widened, the finding would be contrary to the evidence, because it would then include Bathurst Street, which according to the evidence was a busy street. Hence, it was wrong for the board to regard Constable Jaworski"s presence in the alley off Ulster Street shortly after Ms. Hutcheon saw a man masturbating in public view as evidence that he was that man.
This seems to me overly critical of the board"s findings. While it is true that the location was less than a block away from busy Bathurst Street, the evidence was that the officers looked up and down Ulster Street and saw no one other than Constable Jaworski when they arrived or during their investigation. However, it is possible that the evidence of the police officers was only that, during their investigation, they saw no other males matching the description that they had of the suspect. There was also evidence that Markham and Ulster are urban residential streets running respectively parallel to and at right angles to Bathurst Street, and are popular with students because of their proximity to the University.
On the basis of this evidence, together with the time and date of the incidents, it cannot be said that the board"s finding that Constable Jaworski"s presence was more than a coincidence was an error of fact that it made without regard to the evidence or was perverse or capricious, even when it is recalled, as the board did, that he lived in the neighbourhood.
Of course, it is possible that the culprit had entered Ulster Street from Bathurst, and then quickly returned to Bathurst Street after encountering Ms. Hutcheon for the second time. However, there is no evidence supporting this hypothesis. Indeed, it is not a good fit with the evidence of the man"s behaviour. In particular, he did not "disappear" after Ms. Hutcheon saw him about to climb into the backyard of the building where she lived, nor did he make off when she saw him on the second occasion but, instead, took a step towards her.
As to the descriptive identification evidence, counsel submitted that the board erroneously found as a fact that Ms. Hutcheon had stated that the man she had seen was wearing dark slacks, and ignored or minimised the discrepancies in the evidence, particularly respecting her estimation of the man"s height, and the colour and type of jacket that she saw him wearing. However, it is unclear to what extent these inconsistencies originated with Ms. Hutcheon herself, or arose in the course of the recording of her complaint.
In my view, it would be a mistake on an application for judicial review for the Court to accept counsel"s invitation to subject the board"s findings to this kind of detailed analysis, which might have been appropriate if Parliament had provided an unrestricted right of appeal. In the absence of an appeal on questions of fact and law, courts should review an administrative tribunal"s findings of fact with a considerably broader brush than counsel for the appellant would have us wield.
It suffices to say that most of the above discrepancies in the evidence were noted by the board, which nonetheless concluded that, taken as a whole, the descriptive evidence had significant probative value. Again, I find this to be a conclusion that was reasonably open to the board on the evidence before it.
This brings me to the point on which counsel relied most heavily: the board"s treatment of the identification of Constable Jaworski by Ms. Hutcheon on the three occasions when she was asked if he was the man whom she had seen masturbating. However, before considering counsel"s attack on the identification process, particularly the "one man show-up" on the night of the incident, I shall deal with two other aspects of the identification.
First, counsel said that the board was wrong to find that Ms. Hutcheon had seen the face of the man who was masturbating, when her testimony was that she had seen only his eyes. In fact, what Ms. Hutcheon told the board was that she could not see his face, but she could see his eyes. I cannot regard this as the kind of inaccuracy that jeopardises the identification, especially when it is recalled that Ms. Hutcheon had had a good look at the perpetrator during their first encounter.
Second, the Committee noted that Ms. Hutcheon had said when she identified Constable Jaworski that she could not be 100% certain that he was the man that she had seen on the evening in question, and that this seriously weakened her evidence. The board, on the other hand, stated that this lack of absolute certainty "did not detract from her testimonial credibility" (Appeal Book, p. 70), especially since she told the board that she had been more certain when she was asked to identify him shortly after the incident than she had indicated at the time.
The major submission made by counsel on behalf of the appellant was that the "one man show-up" was so deeply flawed that it tainted Ms. Hutcheon"s subsequent identification of Constable Jaworski at the "photo line-up" and at the hearing, which in any event by its very nature could be of very little probative value.
Moreover, counsel argued, since a criminal conviction on this evidence for even a minor offence would not have survived scrutiny on appeal, it should not be permitted by this Court to sustain a decision to dismiss from the Force, a more serious sanction than any likely to have been meted out by a criminal court for public indecency if he had been prosecuted and convicted.
Counsel also emphasised that criminal appeal courts were more prepared to overturn findings of fact made on the basis of flawed identification processes than other kinds of factual finding because they were in as good a position as the trier of fact to assess the reliability, or otherwise, of such evidence. An appeal court may overturn a criminal conviction when it is satisfied that the verdict is "unreasonable or cannot be supported on the evidence": Criminal Code, R.S.C. 1985, c. C-46, subparagraph 686(1)(a)(i).
On the other hand, it is equally important to remember when considering the criminal cases the less onerous standard of proof required in administrative proceedings; the narrower scope of review on findings of fact; and the choice made by Parliament to create a three-step process outside the courts for the adjudication of serious discipline charges against RCMP officers.
I have derived the following conclusions from the criminal cases to which counsel referred us, especially: R. v. Malcolm (1993), 21 C.R. (4th) 241 (Ont. C.A.), R. v. Miaponoose (1996), 30 O.R. (3d) 419 (Ont. C.A.), R. v. Quercia (1990), 1 C.R. (4th) 385 (Ont. C.A.), R. v. Reitsma (S.J.) (1997), 97 B.C.A.C. 303 (B.C. C.A.), R. v. Reitsma (S.J.), [1998] 1 S.C.R. 769; R. v. Smierciak, [1947] 2 D.L.R. 156 (Ont. C.A.), R. v. Smith, [1952] O.R. 432 (C.A.), R. v. Turnbull, [1977] 1 Q.B. 224 (Eng. C.A.).
First, it would be an error of law for a trial judge not to direct the jury, or herself, about the frailty of identification evidence based on an improperly conducted identification process: see especially, Cooper, supra.
Second, neither the admission, nor the use of such evidence in itself constitutes an error of law. Nor does it necessarily render the verdict unreasonable within the meaning of subparagraph 686(1)(a)(i) of the Criminal Code, and accordingly, liable to be reversed on appeal.
Rather, the court asks whether, having regard to the evidence as a whole, the verdict was unsafe because of the reliance on the flawed identification evidence. In making this determination, the court considers whether there is other evidence of the accused"s guilt and, if there is, its strength, as well as the extent to which the flaws in the process undermined the probative value of the identification evidence. After the court has weighed the evidence in its totality, "in the final analysis, the reaction of the court as to when an injustice has been done is a subjective one" (Malcolm , supra, at 250, per Finlayson J.A).
Based on the above cases, I cannot be certain that, if Constable Jaworski had been found guilty by a court of the criminal offence of doing an indecent act in a public place on the evidence that was before the adjudication board, the verdict would necessarily have been set aside on appeal as unreasonable. Further, since the board"s reasons expressly advert to the principles formulated in criminal cases to guide the assessment of identification evidence based on a defective process, they would not be regarded on appeal as erroneous in law.
However, be this as it may, this is not a criminal case, but an employment case; the adjudication board had to be satisfied on the balance of probabilities standard of proof, albeit one located at the high end of the spectrum, not beyond a reasonable doubt; and the standard of review applied by this Court to the findings of fact made by an administrative tribunal is that of perverse or capricious, or made without regard for the evidence, not that of unreasonable or insupportable on the evidence.
On this latter point, the Supreme Court of Canada has recently articulated the role of an appellate court under subparagraph 686(1)(a)(i) of the Criminal Code. Thus, the court must "engage in a thorough re-examination of the evidence and bring the weight of its judicial experience to decide whether, on all the evidence, the verdict was a reasonable one" (R. v. Molodowic , 2000 SCC 16, para 1) and "within the limits of appellate disadvantage, weigh the evidence": R. v. Biniaris , 2000 SCC 15, para 36. The Court also said in Biniaris (at para 38) that a "lurking doubt" is insufficient to overturn a verdict, although it "may be a powerful trigger for thorough appellate scrutiny of the evidence".
In contrast, the standard of review applied to administrative tribunals" findings of fact by this Court under paragraph 18.1(4)(d ) of the Federal Court Act has been said to be indistinguishable from that of patent unreasonableness: Canadian Pasta Manufacturers" Assn. v. Aurora Importing & Distributing Ltd. (1997), 208 N.R. 329 at 333 (F.C.A.). As the Supreme Court of Canada made clear in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 2 S.C.R. 748 at 776, there is an appreciable difference between reviewing for patent unreasonableness and for unreasonableness simpliciter: when the latter applies, the tribunal"s decision is subject to "a somewhat probing examination". It seems to me that the standard applied in criminal appeals more closely resembles that of unreasonableness simpliciter in administrative law.
To sum up, when the evidence before the adjudication board is considered in its totality, and the standard of proof and the narrow scope of review exercisable by this Court over administrative findings of fact are kept in mind, I am not satisfied that the board"s decision that there was clear and convincing evidence was itself perverse or capricious, or made without regard for the material before it.
Despite its limitations, the probative value of the identification evidence, which the board amply recognised, was by no means negligible when considered as a whole. The short time between the original identification and the incident, and the much longer time between that evening and the conduct of the photo line-up, may go some way to reducing the risk of a misidentification as a result of the faulty process at the "one man show-up".
In addition, the circumstantial evidence was very significant. Constable Jaworski was present at the scene of the incident minutes after it had occurred and his explanation for his presence there was not believed; he matched to a considerable degree the description that the police had been given of the suspect; the police saw no one else on the immediately adjacent streets at that time; his behaviour towards the officers was belligerent and not typical of an innocent person; he was inebriated; and the top button of his pants was undone.
| Issue 2: Did the Commissioner"s reasons for confirming the board"s decision, and for not acting on findings contained in the Committee"s report, satisfy the statutory duty to give reasons? |
The Commissioner is required by subsection 45.16(5) of the RCMP Act to give reasons for decisions on appeal. In addition, if, as in our case, the Commissioner does not adopt the findings of the External Review Committee"s report, the Commissioner must include in the decision the reasons for not so doing.
The appellant argued that the reasons given by the Commissioner did not discharge this duty because they did not address the Committee"s report and explain, point by point, why he rejected its findings. Indeed, the Commissioner failed to engage with any of the principal grounds that had led the Committee to conclude that the board had based its decision on findings of fact that were palpably erroneous. Instead, counsel maintained, despite reasons for decision that are twenty-one pages in length, less than one page is devoted to the Commissioner"s own analysis, and this of the most general kind. The Commissioner"s reasoning can be reduced to four points.
First, the board was in the better position to assess the credibility of the witnesses. However, this could apply whenever the Commissioner confirms an adjudication board on its findings of fact and does not adopt the Committee"s conclusions. Indeed, in this case the Commissioner"s observation may carry relatively little weight as far as Ms. Hutcheon is concerned since the central issue raised by the Committee was the reliability of her identification of Constable Jaworski in view of the flawed process of the "one man show-up". The reliability of identification evidence is a question, it has been said, on which the trier of fact does not enjoy the normal advantage that comes from having seen and heard the witnesses in person, but is one that is "susceptible to a reasoned review by a court of appeal": Miaponoose , supra, at 423; see also Reitsma (1997), 97 B.C.A.C. 303 at 312.
Second, the Commissioner will only reverse an adjudication board"s findings of fact when they are unreasonable. This is merely a statement of the standard of review applied by the Commissioner to the board"s findings of fact. Since it is the same standard as that applied by the Committee it does not explain why the Commissioner decided not to adopt the Committee"s findings.
The third reason given by the Commissioner was the reasonableness of the board"s finding that Constable Jaworski was not credible. However, since the Committee did not challenge this, it is not responsive to Ms. Lynch"s findings in the report. Worse, it may come close to suggesting that the Commissioner fell into the error, narrowly avoided by the board, of inferring from the appellant"s incredible explanation for his presence on the street, and of his behaviour when confronted by the police officers, that he was therefore the man whom Ms. Hutcheon had seen masturbating. More charitably, the Commissioner may simply have been making the point that, having reasonably found the appellant to be a non-credible witness, the board was entitled to attach no probative weight to his denial of guilt.
Fourth, the adjudication board considered the evidence as a whole, both eyewitness and circumstantial, and found clear and convincing evidence of Constable Jaworski"s guilt. In so stating, the Commissioner comes closest to revealing the basis of his decision to prefer the conclusions of the board to the findings of the Committee. This must also be read with his observation that the Committee "rightfully challenged each part of the evidence, which if taken alone would not meet the standard of clear and convincing proof", whereas
| the Board assessed the totality of the evidence including its shortcomings and was convinced that in its totality, no other reasonable conclusion could be reached other than Cst. Jaworski was the individual responsible for the act in question. |
These hardly constitute a fulsome explanation of why the Commissioner confirmed the board and did not act on the Committee"s findings and the recommendation that Constable Jaworski not be dismissed. The question thus comes down to whether this minimal explanation is nonetheless sufficient to get the Commissioner over the threshold of adequacy required to discharge his statutory duty. If the Commissioner were required only to provide reasons for his decision to allow or dismiss an appeal, I would have had no difficulty in the circumstances of concluding that his reasons were adequate.
First, the reasons must also be read in light of the previous twenty pages in which the Commissioner details the positions taken by the parties at the hearing, summarises the findings of the board and the Committee, and identifies the points of difference between the two bodies. This shows that the Commissioner had before him the relevant information and was perfectly well aware of the issues in contention.
Second, if it is read as a whole, the decision can have left Constable Jaworski in no real doubt as to why the Commissioner confirmed the board. Third, since the Commissioner adopted the board"s decision as his own, and that decision was itself fully reasoned, it cannot be said that the Commissioner"s reasons were so terse as in effect to immunise his decision from judicial review. Hence, since the reasons were full enough to serve the essential functions served by a duty to give reasons, they were not inadequate in law.
However, the statutory duty to include in the decision the reasons for not adopting the Committee"s findings places an additional burden of explanation on the Commissioner. By introducing an external body into the statutory scheme Parliament must have intended to provide a level of assurance to officers against whom discipline proceedings are taken, and to members of the public, that the discipline process is reliable and transparent. Given that Parliament was not prepared to go so far as to give the Committee an executive decision-making power, it sought to lend weight to its findings by requiring the Commissioner to explain why he was not acting on the Committee"s findings.
In my view, the Commissioner"s reasons pass this test as well: they are sufficient to ensure his accountability for the ultimate decision to terminate Constable Jaworski"s career in the RCMP. I read his reasons as in effect saying that, in concentrating its attention on the pieces of evidence individually, the Committee lost sight of the big picture. In contrast, the board considered the evidence as a whole and based its decision on the totality of the material before it, without at the same time ignoring the weaknesses of some of its component parts. In these circumstances, the Commissioner was not required to rebut each of the points on which the Committee had taken issue with the board.
| H. CONCLUSIONS |
In view of the seriousness of the consequences of the Commissioner"s decision for the appellant, the novelty of the identification issue in administrative proceedings and the thorough submissions of the appellant"s counsel, I have subjected the decisions in question to a more extensive analysis than is usually required when an applicant for judicial review challenges the decision of an administrative tribunal on the basis of its findings of fact.
Nonetheless, I am not satisfied either that this is one of those rare cases in which judicial intervention in a tribunal"s fact-finding is warranted, or that the Commissioner"s reasons are so defective that the decision should be set aside. I note that counsel did not seek judicial review of the appropriateness of the penalty imposed by the Commissioner.
For these reasons, and finding no error in the reasons given by Rothstein J., I would dismiss the appeal, but without costs.
"John M. Evans"
J.A.
"I agree
Robert Décary J.A."
"I agree
J. Edgar Sexton J.A."