Federal Court of Appeal Decisions

Date: 20060210

Docket: A-628-04

Citation: 2006 FCA 61

CORAM:        LÉTOURNEAU J.A.

                        NADON J.A.

                        PELLETIER J.A.

BETWEEN:

GÉRARD THÉRIAULT

Appellant

and

THE APPROPRIATE OFFICER OF C DIVISION

OF THE ROYAL CANADIAN MOUNTED POLICE

and

THE ATTORNEY GENERAL OF CANADA

Respondents

Hearing held at Montréal, Quebec on January 9, 2006.

Judgment rendered at Ottawa, Ontario on February 10, 2006.

REASONS FOR JUDGMENT:                                                                           LÉTOURNEAU J.A.

CONCURRED IN BY:                                                                                                   NADON J.A.

                                                                                                                                 PELLETIER J.A.

Date: 20060210

Docket: A-628-04

Citation: 2006 FCA 61

CORAM :       LÉTOURNEAU J.A.

                        NADON J.A.

                        PELLETIER J.A.

BETWEEN:

GÉRARD THÉRIAULT

Appellant

and

THE APPROPRIATE OFFICER OF C DIVISION

OF THE ROYAL CANADIAN MOUNTED POLICE

and

THE ATTORNEY GENERAL OF CANADA

Respondents

REASONS FOR JUDGMENT

LÉTOURNEAU J.A.

[1]                Were the disciplinary proceedings brought against the appellant as a member of the Royal Canadian Mounted Police (RCMP) subject to a limitation period pursuant to subsection 43(8) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the Act)? That subsection states: "No hearing may be initiated by an appropriate officer under this section in respect of an alleged contravention of the Code of Conduct by a member after the expiration of one year from the time the contravention and the identity of that member became known to the appropriate officer". It should be noted that the knowledge in question here is that of the appropriate officer, not of persons responsible for investigating and reporting on allegations of misconduct. In other words, knowledge by third parties, even if they are subordinates of the appropriate officer, will not cause the limitation period to begin to run.

[2]                The Court was told that the issue is important because it is the first time that it had come before this appellate level and the position taken by the Federal Court departs from the practice which had previously been followed by adjudication boards on the extent and nature of the knowledge required in order to meet the conditions of subsection 43(8). I will return to this point. Before that, a brief review of the background to the proceedings is necessary.

BRIEF REVIEW OF BACKGROUND TO PROCEEDINGS

[3]                From the outset, the appellant objected to the disciplinary proceeding brought against him on two allegations of conduct offences, namely of having acted as a manager in a bar/restaurant frequented by motorcycle gangs and having sought to facilitate a drug transaction there. His objection based on the limitation period was not accepted by the Adjudication Board, which ordered him to be dismissed if he did not resign within 14 days. His appeal to the RCMP Commissioner (the Commissioner) was dismissed by the latter on the recommendation of the RCMP External Review Committee (External Committee). At that point the appellant unsuccessfully filed an application for judicial review in the Federal Court against the Commissioner's decision. It is the dismissal of that application for judicial review which is now being appealed.

FACTUAL BACKGROUND

[4]                At the time the misconduct allegations were made, the appellant had been a member of the RCMP since 1981.

[5]                On March 18, 1999, when he was subject to a suspension in another matter which is unrelated to the case at bar, Cpl. Verdon of the RCMP was informed by a member of the anti-gang division of the Service de Police de la Communauté Urbaine de Montréal [Montréal Urban Community Police Force] (SPCUM) that the appellant was the manager of a bar/restaurant controlled and frequented by criminal bikers. According to this information, the appellant even shut the door in the face of investigators from the morality squad of the SPCUM while they were going about their duties (appeal book, vol. 1, page 57).

[6]                Cpl. Verdon informed Supt. Fournier, the responsible officer in the divisional intelligence services for the RCMP C Division of the information obtained from the SPCUM. On the same day he received that information, Supt. Fournier passed it on to the officer in charge of criminal investigations (the OCCI), here Chief Supt. Sugrue (appeal book, vol. 1, page 85). Without delay, the latter met with Staff Sgt. Wafer of the RCMP Special Investigations Division in Montréal, Supt. Dion (a deputy OCCI) and Supt. Fournier. The meeting between these individuals led to a decision to transfer the investigation of the information received to the RCMP Special Investigations Division, which reported to the OCCI. Staff Sgt. Wafer was made responsible for coordinating the investigation with the SPCUM (appeal book, page 116).

[7]                At this stage, the RCMP's information was sketchy and uncertain. Its substance had to be verified and further investigated. Thus, on March 19, 1999 Staff Sgt. Wafer contacted Lt. Plante of the SPCUM. He learned two things from Lt. Plante: documentation regarding the appellant would be available in the following week and a double agent operation targeting the bar/restaurant in question and the drug trafficking would soon be under way.

[8]                A meeting was held between Lt. Plante of the SPCUM and Staff Sgts. Wafer and Martel on April 23, 1999. Staff Sgts. Wafer and Martel were informed of the progress with the undercover operation. They learned that the appellant had tried to obtain cocaine from the double agent. They heard that a detailed report on the offences committed by the appellant would be submitted to them shortly (appeal book, pages 61 and 62).

[9]                On May 10, 1999, Sgt. Hardy joined the Special Investigations Division and was given responsibility for the investigation of the appellant. At that point he reported to Staff Sgt. Martel, who had just replaced Staff Sgt. Wafer. For the purposes of this case, Mr. Martel was under the direct authority of Supt. Sugrue (appeal book, page 120).

[10]            On June 23, 1999, Sgt. Hardy received from Lt. Plante of the SPCUM the notes taken by the double agent when he met the appellant. On July 27, 1999, Staff Sgt. Couture of the RCMP Internal Investigations Division reviewed the notes in the possession of Sgt. Hardy when he met with him (appeal book, page 59). At that time it was agreed that the information on hand was sufficient to initiate an internal investigation pursuant to Part IV of the Act. However, according to the testimony of Supt. Sugrue the investigation did not begin until late in the summer of 1999 (appeal book, page 119).

[11]            From May to October 1999, Supt. Sugrue, the director of the OCCI and supervisor of the investigation of the appellant, was appointed acting Commanding Officer of C Division, replacing the commanding officer, Assistant Commissioner Lange (see Acting Appointment Form in appeal book, page 63). The replacement was intermittent but lasted for a total of 44 days. In his acting position Supt. Sugrue had all the powers of the incumbent commanding officer, including the "financial signing powers" associated with the position (ibid.). The appointment documents issued for each replacement period indicated that, for the periods from May 25 to June 5, 1999, June 11 to 21, 1999, August 16 to 18, 1999, August 19 to 30, 1999 and September 11 to 16, 1999, Supt. Sugrue could [TRANSLATION] "perform the duties of the interim appointment as well as the permanent duties of the position" (appeal book, vol. 2, pages 236 to 239). I would mention in passing that subsection 23(5) of the Interpretation Act, R.S.C. 1985, c. I-21, states that where a power is conferred or a duty imposed on the holder of an office, the power may be exercised and the duty shall be performed by the person for the time being charged with the execution of the powers and duties of the office.

[12]            The incumbent commanding officer, Mr. Lange, is the person who as the appropriate officer pursuant to section 43 of the Act decided to initiate a disciplinary hearing against the appellant, in view of the seriousness of the acts with which he was charged. I set out section 43 in its entirety below, in view of the relevance of some of its subsections and the fact that subsection 43(8) is the focus of this case:

[13]            Commanding Officer Lange's decision, as the appropriate officer, to convene an Adjudication Board to determine whether formal disciplinary action should be taken against the appellant was made on October 23, 2000 (appeal book, page 194). Mr. Lange indicated to the Adjudication Board that he had been verbally informed of the allegations against the appellant by Stéphanie Andrégnette on November 8, 1999. She suggested he contact the OCCI for more evidence (appeal book, vol. 2, pages 226-227). Mr. Lange also stated that he had not discussed questions about the appellant with Supt. Sugrue before November 8, 1999 (ibid., at page 229).

[14]            Those are the facts which are the background to the case at bar.

FEDERAL COURT JUDGMENT

[15]            At this stage it is not necessary to review the justifications given by the Adjudication Board and the External Committee in support of their respective positions. I will return to this below. For the moment, I need only indicate that the Federal Court dismissed the appellant's application for judicial review, but on different grounds from those mentioned by the two aforesaid boards.

[16]            In fact, as appears at paragraph 43 of his reasons for judgment, the Federal Court judge indicated that in his view, when he occupied the duties of appropriate officer between May and October of 1999, Supt. Sugrue did not have the necessary level or degree of knowledge required by subsection 43(8) for the limitation period to begin to run.

[17]            The Federal Court judge indicated that in his view the limitation period began to run from the time the information required by subsection 43(8) was received, and it was of little importance whether the person performing the duties was the permanent, interim or acting incumbent. This accordingly leads me to discuss the information required by subsection 43(8) of the Act; but I will not undertake that exercise before first determining the applicable standard of review and digressing briefly to examine the purpose and objectives of a limitation period, especially the one in subsection 43(8), which appears to be the subject of some confusion.

APPLICABLE STANDARD OF REVIEW

[18]            At paragraph 20 of his judgment, the Federal Court judge concluded that the appropriate standard of review for the misinterpretation of a statute was that of correctness. On the other hand, he said, mixed questions of fact and law, such as whether the notice of initiation of a disciplinary hearing was out of time, are subject to the reasonableness standard.

[19]            This Court's function when sitting in appeal from a court judgment on an application for judicial review of an administrative decision consists in determining whether the judge has chosen the right standard of review for the administrative decision and applied it correctly: Dr. Q. v. College of Physicians and Surgeons, [2003] 1 S.C.R. 226.

[20]            In the case at bar, the issue was to define the meaning of the words "known to the appropriate officer" contained in subsection 43(8) of the Act and apply that definition to the facts of the case. I agree with the Federal Court judge that the correctness standard applies to the definition of these words by the administrative body and that of reasonableness to its application to the facts of the case.

[21]            Without saying so expressly, the Federal Court judge properly intervened to correct the definition given to these words by the Commissioner. Unfortunately, and I say this with respect, I feel that the one he substituted was also wrong, as we will see below. This Court must accordingly define these words correctly and examine the Commissioner's decision in light of that definition.

PURPOSES AND OBJECTIVES OF LIMITATION PERIOD

[22]            In disciplinary proceedings, as with the principles governing the prosecution of criminal offences, it is not unusual for misconduct offences to be exempt from limitation (on exemption from limitation see in Quebec, for example, Béchard v. Roy, [1975] C.A. 509; Cournoyer and de Niverville, La procédure disciplinaire du Barreau du Québec, Collection de Droit: Éthique, déontologie et pratique professionnelle, 2005-2006, vol. I, Barreau du Québec, Cowansville, Les Éditions Yvon Blais Inc., page 56; S. Poirier, La discipline professionnelle au Québec, 1998, Cowansville, Les Éditions Yvon Blais Inc., page 76; M. Goulet, Le droit disciplinaire des corporations professionnelles, 1993, Cowansville, Les Éditions Yvon Blais Inc., pages 49 and 50). The reason is that standards of conduct imposed on professionals or police officers vested with special powers to ensure that the law is observed are enacted both to protect the public and to promote the public's confidence in professional and public bodies. In police forces, their purpose is also to maintain discipline and integrity, both essential to ensure the respect and cooperation by the public, which are indispensable to efficiently performing police duties and achieving the objectives of law enforcement.

[23]            The purpose of introducing a limitation provision into a disciplinary system is to provide some fairness in the treatment of offenders and to enable them to put forward a full and complete defence which may be compromised by the lapse of time or undue delay in taking action. Even in the absence of a limitation period, it is still possible to file a motion based on the lapse of an unreasonable period of time if the accused is in a position to show that the delay between the offence and the charge and/or the delay after the charge caused him or her harm compromising the right to a full and complete defence or the fairness of the hearing: Brown and Evans, Judicial Review of Administrative Action in Canada, Toronto, Canvasback Publishing, pages 9 to 81; Cournoyer and de Niverville, supra, at page 56; S. Poirier, supra, at pages 76 and 97. In Blencoe v. B.C. (Human Rights Commission), [2000] 2 S.C.R. 307, at paragraph 102, Bastarache J. wrote:

Where delay impairs a party's ability to answer the complaint against him or her, because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost, then administrative delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy . . . It is thus accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied . . .

[24]            Statutory limitation periods, which vary in length, generally run from the day the offence was committed. When by their nature offences prove difficult to detect or require lengthy and laborious investigations, it sometimes happens that the legislature provides in statutes for a twofold limitation, that is a longer period running from the day the offence was committed or a starting-point for computing the time period other than simple commission of the wrongful act.

[25]            For example, in the Farm Improvement and Marketing Cooperatives Loans Act, R.S.C. 1985 (3d Supp.), c. 25, subsection 17(4) states that proceedings in respect of an offence under the section may be commenced at any time within 12 months after the day on which evidence, sufficient in the opinion of the Minister to justify prosecution for the offence, comes to the Minister's knowledge, but may not be commenced later than three years after the time the subject-matter of the proceedings arose.

[26]            Similarly, subsection 10.1(1) of the Fertilizers Act, R.S.C. 1985, c. F-10, subsection 38(4) of the Pension Benefits Standards Act, 1985, R.S.C. 1985 (2d Supp.), c. 32, and subsection 987(1) of the Bank Act, S.C. 1991, c. 46, provide that the limitation period begins to run when the Minister, superintendent or commissioner, as the case may be, has knowledge of the subject-matter of the offence.

[27]            In the case at bar, doubtless from a concern to provide better protection for the public and to ensure the credibility of the institution, Parliament has provided that the limitation period will only run from the day the appropriate officer has knowledge of the two essential components for prosecution of an offence, namely its existence and the identity of its perpetrator. The second factor lengthens the limitation period in every case where the offence discovered cannot be traced to its perpetrator immediately and requires a longer investigation.

[28]            It is therefore not entirely accurate to say, and this point must be emphasized, that Parliament intended disciplinary proceedings under the Act to go forward expeditiously. If that were the case, the limitation period would run from the day of the contravention. Further, if it were made to run from the day the contravention became known, Parliament would not have added the requirement of the perpetrator's identity.

[29]            I feel that by enacting the limitation period in subsection 43(8), Parliament sought to determine a starting-point reconciling the need to protect the public and the credibility of the institution with that of providing fair treatment for its members and persons involved in it. Accordingly, the subsection 43(8) mechanism offers a flexibility which is desirable for purposes of investigation and prosecution; but it has its limits, and inevitably the time cutoff falls on inaction and resolves the matter in the offender's favour. As the Review Committee mentioned in its decision, it is unfortunate - and I would add always dangerous - when the offence and its perpetrator are known, to wait to the last minute, or I would add just before the stroke of midnight, to initiate a prosecution (appeal book, vol. I, page 178). What is the situation in the case at bar?

DEFINITION OF KNOWLEDGE REQUIRED BY SUBSECTION 43(8), DEGREE AND STANDARD

Facts appropriate officer should know

[30]            I repeat that, under subsection 43(8) of the Act, for the one-year limitation to start running the appropriate officer must have knowledge of two facts: the contravention and the identity of its perpetrator. It goes without saying that mere rumours, suspicions or insinuations as to the existence of a contravention or the identity of its perpetrator will not suffice to make them facts, that is to establish the contravention and the identity of its perpetrator.

[31]            I agree with Keenan J. in R. v. Fingold, [1999] O.J. No. 369, at paragraph 56 (Ont. Gen. Div.), where the Court had to interpret a 12-month limitation period for knowledge of facts by the Ontario Securities Commission: "facts must mean more than mere rumour or gossip on the street or even an 'overpowering' suspicion. It must be information obtained from an identifiable source which might reasonably be expected to have such information and obtained in circumstances which would tend to support the accuracy and reliability of the information given".

[32]            In Ontario (Securities Commission) v. International Containers Inc., [1989] O.J. No. 1007 (O.H.C.), approved by Fingold, supra, and by the British Columbia Court of Appeal in Romashenko v. Real Estate Council of British Columbia, 2000 BCCA 400, at paragraphs 17 and 18, Carruthers J. accepted as facts or information which started the running of the limitation period the material or essential components required by law for the charge. In Romashenko, supra, Huddart J. referred to evidence "of the material averments of the charge". This approach is the one that applies in the case at bar. Moreover, it is consistent with the similar limitation clauses contained in the three statutes cited earlier as examples (the Bank Act, the Fertilizers Act and the Pension Benefits Standards Act , 1985), in which knowledge refers to knowledge of the components of the offence.

Extent of knowledge of essential components of contravention

[33]            As with establishing a fact, it goes without saying that mere suspicion as to the existence of a contravention or the identity of its perpetrator, while they may justify the initiation of an investigation, cannot provide the knowledge required for the subsection 43(8) limitation to begin to run.

[34]            According to the dictionary terminology (Le Petit Larousse illustré 1997, Larousse, Paris, pages 260 and 941, Le Petit Robert, Dictionnaire de la langue française, Paris, 1992, pages 368 and 1844), knowledge of a fact is knowledge that it exists and being informed of its components. Suspicion of a fact is conjecturing that it exists, assuming the components that make it up. In other words, he who knows something is sure of it; he who suspects it is presuming or speculating about it.

[35]            Whether in cases of disciplinary or criminal proceedings, knowledge of an offence and of the identity of its perpetrator means that the person empowered to conduct investigations must have sufficient credible and persuasive information about the alleged offence and its perpetrator to reasonably believe that the offence has been committed and that the person to whom it is attributed was the perpetrator.

[36]            In my humble opinion, this is the degree of knowledge required for the subsection 43(8) limitation to begin to run. It is not necessary at this point to have all the evidence that may prove necessary or that may be admitted at trial: see Ontario(Securities Commission) v. International Containers Inc., supra. At this stage, it is also not necessary to have the details required to respond to a motion for particulars if one is made: ibid.

[37]            Similarly, for purposes of the starting-point of the limitation, I do not feel that the appropriate officer must know the information that he is required to give the offender with the notice of hearing and which is contained in subsections 43(4) and (6) of the Act. Such disclosure of evidence to the offender is not dictated by the rules of limitation, but by the rules of natural justice and procedural fairness at the hearing.

[38]            It is important for the two situations not to be confused in legal terms. It may well be that at the time the appropriate officer acquires knowledge of the existence of a contravention for the purposes of starting the limitation period, he does not have all the information necessary to meet the requirements of subsections 43(4) and (6); but at that stage he is not required to initiate a disciplinary hearing if, under subsection 43(1), he is not aware of the gravity of the offence and in the circumstances he cannot know whether informal disciplinary action will suffice. He may proceed with the investigation or require further investigation to satisfy himself and meet the conditions of subsections 43(4) and (6).

[39]            In fact, subsections 43(1) and (8) do complement each other, but not in the sense that counsel for the respondents suggested to the Court at the hearing.

[40]            Under subsection 43(1), an appropriate officer has a duty to initiate a disciplinary hearing when it appears to him or her that there has been a breach of the Code of Conduct and having regard to the gravity of the contravention and the surrounding circumstances, formal disciplinary action is required. At that point, he has more information than is required to start the limitation period running. He has the information necessary to meet the requirements of natural justice set out in subsections 43(4) and (6): hence the duty placed upon him to initiate the disciplinary hearing at that point.

[41]            Counsel for the respondents submitted that all this information referred to in subsection 43(1) must also be known to the officer if the limitation period under subsection 43(8) is to begin to run, and before it does so. There are three difficulties with that argument.

[42]            First, the words "having regard to the gravity of the contravention and to the surrounding circumstances" do not appear in the wording of subsection 43(8). If we accepted the respondents' arguments, we would necessarily have to re-write the wording of subsection 43(8) to read: "from the time the contravention, its gravity and the circumstances of its commission and the identity of that member became known to the appropriate officer".

[43]            Second, Parliament does not act in vain. If it had intended that the rule of limitation of the prosecution be subject to the same conditions as that justifying and requiring the officer to initiate a hearing, it would have used the same language in subsection 43(8) that it used in subsection 43(1).

[44]            Third, the reference "to the gravity of the contravention and to the surrounding circumstances" contained in subsection 43(1) is added to the fact that the appropriate officer knows of the existence of the contravention. Clearly, it could not be otherwise. How can he consider its seriousness and the circumstances in which it was committed if he is unaware of its existence? It is this knowledge of the existence of the contravention to which the subsection 43(8) limitation refers, not the seriousness and circumstances of the contravention, which are required to initiate the disciplinary hearing. When the appropriate officer acquires knowledge of the existence of a contravention (and of the identity of its perpetrator), he has 12 months to establish the circumstances and assess the seriousness so as to determine whether formal rather than informal disciplinary action should be taken.

[45]            I adopt the comments of Keenan J. in Fingold, supra, mutatis mutandis, replacing the word "Commission" with "appropriate officer". The comments of Keenan J., at paragraphs 60 and 61 of his judgment, are as follows:

The limitation period in s. 129 is a one year period during which the appropriate officer must investigate and determine that there is sufficient evidence of the commission of an offence to justify prosecution. The appropriate officer must analyse and verify the original information and determine whether there is sufficient credible and cogent evidence to justify a prosecution with reasonable assurance that the prosecution will result in a conviction.

The process of evidence gathering, verification and analysis is to take place during the limitation period. That process is not to be used as any ground for delaying the commencement of the limitation period which is to be objectively viewed as the point at which information of sufficient cogency to amount to the facts upon which the prosecution is based, first came to the knowledge of the appropriate officer. When, as in this case, that point of commencement is in issue, it is for the Court to determine on an objective standard when those facts first came to the knowledge of the appropriate officer. It is not the prerogative of the appropriate officer to decide when the limitation period commences by asserting a need to investigate or verify the original information.

(Emphasis added.)

[46]            In general, and this is certainly the case here where one of the alleged contraventions refers to attempted trafficking in cocaine by an RCMP member, the seriousness of the contravention is apparent from the very nature of the contravention alleged and the status of its perpetrator. It seems to the Court that a period of one year is quite sufficient to determine the additional circumstances necessary to assess seriousness when the latter is not immediately apparent.

[47]            To conclude on the question of the knowledge and degree of knowledge required by subsection 43(8) of the Act for a limitation period to begin to run, I feel that the appropriate officer acquires knowledge of a contravention and the identity of its perpetrator when he or she has sufficient credible and persuasive information about the components of the alleged contravention and the identity of its perpetrator to reasonably believe that the contravention was committed and that the person to whom it is attributed was its perpetrator. From that point, within the limitation period, an inquiry to check and confirm the credible and persuasive information received and now known regarding the contravention and its perpetrator can be carried out, if it is deemed necessary. Accordingly, for there to be knowledge of these facts for the purposes of a limitation period, There need not be evidence beyond all reasonable doubt or for its existence to have been confirmed by proof or verification. As Keenan J. so clearly puts it in Fingold, supra, at paragraph 56, " 'knowledge' does not require proof or verification to constitute knowledge".

Standard of assessment of knowledge applicable to knowledge by appropriate officer

[48]            I think it is now well settled that the standard of assessment of the knowledge of a person empowered to initiate a prosecution is, for the purposes of a limitation period in which the starting-point is the knowledge the person has of the contravention, an objective standard: see Romashenko v. Real Estate Council of British Columbia, supra; R. v. Fingold, supra; R. v. Sentes, [2003] M.J. No. 190 (Man. Prov. Ct.). The reasons for this are quite simple, and indeed obvious.

[49]            To begin with, it is not up to the person with such powers, here the appropriate officer, to determine the time when he acquires the knowledge which is sufficient to cause the limitation to run. That determination is for the tribunal before which it is alleged that the proceedings are subject to limitation, that is in the case at bar, the Adjudication Board. The determination of what the appropriate officer knew and the time he knew it is made objectively by the Adjudication Board based on the evidence before it. The subjective opinion of the appropriate officer on these points, or on what he needed to know, has no conclusive effect. It is only one relevant factor which the Adjudication Board must take into account in analyzing the question before it.

[50]            In Fingold, supra, Keenan J. wrote at paragraph 45, in discussing a prosecution in a criminal court under the Securities Act:

It is for the Court to determine whether the prosecution has proved . . . that it complied with the limitation requirements of the Securities Act. The test is an objective one based upon the evidence before the Court. The Commission's subjective belief that the limitation period commenced on January 27, 1992 is not determinative although it is a factor to be considered along with all the other evidence on the issue.

[51]            It would obviously be too easy to invalidate a limitation provision if one had to rely on the subjective assessment of the person against whom it is raised.

[52]            Second, the objective standard of assessment accepted by the courts refers to a test of "reasonableness" to describe the belief which the appropriate officer must have that a contravention has been committed and that the person to whom it is attributed is the perpetrator. Faced with the same information which the appropriate officer had, a reasonable person could only come to the same conclusion.

Application of this knowledge test to facts of case at bar

[53]            The Adjudication Board that heard and saw the witnesses concluded that Supt. Sugrue had knowledge of the alleged contravention and the identity of its perpetrator, but had that knowledge as director of the OCCI. Clearly, when Supt. Sugrue acted temporarily as the appropriate officer, with the full powers of the position, he still had knowledge of the contravention and its perpetrator. However, the Adjudication Board excluded him on the ground, which in my opinion was quite artificial, that when he was acting as appropriate officer he did not have the knowledge in that capacity, but in his capacity as officer responsible for the OCCI. In other words, on this reasoning Supt. Sugrue left his knowledge in the cloakroom with his overcoat when he entered the office of the appropriate officer and assumed the full duties.

[54]            This is the language used by the Adjudication Committee, at appeal book, vol. I, page 128, to describe this disembodied viewpoint:

Chief Supt. Sugrue was not the acting commanding officer when he learned of the alleged conduct of Const. Thériault but rather was acting as OCCI and it is in that capacity that he was informed since Special Investigations reported to his command. He was not, therefore, the appropriate officer at that time, was not acting in that capacity, and his knowledge was the knowledge of the OCCI. When Chief Supt. Sugrue occupied the position of acting commanding officer, he was not informed of the contraventions of the Code of Conduct alleged against Const. Thériault as the appropriate officer and therefore did not have to perform that role. In other words, Chief Supt. Sugrue was not seized of the disciplinary case concerning Const. Thériault as commanding officer and at the time when he was commanding officer, and his knowledge of the facts was not knowledge as appropriate officer but rather as OCCI. This knowledge did not become the knowledge of the appropriate officer solely by virtue of his interim presence in that position.

[55]            The External Committee quite properly rejected this interpretation of the knowledge mentioned in subsection 43(8) of the Act. "As a general rule", the External Committee said, "if a member knows of an allegation that another member has contravened the Code of Conduct, this knowledge follows him when he takes command of the Division, even though he assumes those duties on an interim basis only": appeal book, vol. I, page 177.

[56]            However, with respect, the External Committee erred when it concluded that "it would probably ill behove Supt. Sugrue, having been assigned 'the duties of the temporary appointment and the permanent duties of the position', to bring disciplinary proceedings against the appellant, although he was entitled to do so": ibid., at page 178.

[57]            In fact, the starting-point of the limitation under subsection 43(8) of the Act is not the good interpersonal relations between the incumbent appropriate officer and the acting appropriate officer, but the knowledge the appropriate officer had of the contravention and its perpetrator.

[58]            It may have been desirable for purposes of internal management that the proceedings be initiated by the incumbent appropriate officer, Commanding Officer Lange, rather than by the acting appropriate officer, Supt. Sugrue, but that is not the purpose of subsection 43(8). The two officers could speak to each other in order to carry out the purposes of the prosecution contemplated by the Act, and so comply with the requirements of the subsection 43(8) limitation. Indeed, the protection of the public interest and the integrity of the institution nevertheless required that they speak to each other and coordinate their efforts, since the running of the limitation was initiated by the knowledge the acting appropriate officer Sugrue had of the contravention and its perpetrator. If Supt. Sugrue did not wish to initiate the prosecution himself, he should have informed Commanding Officer Lange of the contravention and the identity of its perpetrator. Commanding Officer Lange would then have had ample time to make the necessary verifications, if required, and comply with the Act by initiating proceedings within the prescribed time, if he thought proceedings should be initiated.

[59]            The requirement that the acting appropriate officer pass on his knowledge to the incumbent appropriate officer is apparent from the fact that the knowledge referred to in subsection 43(8) is knowledge which relates to the position or function, not to its incumbent. It is institutional knowledge, not personalized or ad personam knowledge. The situation could not be otherwise without compromising the very purpose of the provision and counteracting the intent of Parliament.

[60]            A literal interpretation of subsection 43(8) leads to an absurdity that Parliament could not have intended. Note that the substance of subsection 43(8) is that the appropriate officer cannot initiate a hearing more than a year after the contravention and the identity of its perpetrator became known to the appropriate officer (emphasis added).

[61]            If this statement was seen to contain, and limited to containing, personal and individualized knowledge of the two components required, this would mean that one week after the limitation came into effect it would only be necessary to appoint a new appropriate officer who was not aware of the contravention and of the identity of its perpetrator, and the 12-month limitation would not begin to run until the date he acquired such knowledge.

[62]            Worse still, the limitation might already have begun to run so far as the incumbent officer was concerned, but it would only be necessary to appoint a new appropriate officer for the limitation period to begin over again and not begin to run until the day he personally had knowledge of the contravention and its perpetrator.

[63]            In short, an interpretation which does not take into account the intended purpose and the context in which the provision occurs results in making it completely meaningless and depriving it of its content and consequences at the expense of the offender. As I mentioned at the start of these reasons, the subsection 43(8) limitation serves the twofold purpose of protecting the public and the credibility of the institution and providing fair treatment for the members of that institution.

[64]            On the other hand, an interpretation of subsection 43(8) of the Act by which the knowledge is linked to the position or function of appropriate officer rather than to the incumbent makes it possible to reconcile these two objectives. Thus, the appropriate officer who signs the certificate certifying the time knowledge of the contravention and the identity of its perpetrator occurred is not certifying the date on which he personally acquired knowledge of these two matters, but the date the knowledge of these two matters was attributable to the position or function of appropriate officer.

[65]            The objectives sought by Parliament in enacting the limitation rule in subsection 43(8) clearly cannot be avoided by allowing one appropriate officer to disregard or divest himself of knowledge which he has and another, who ultimately initiates the proceedings, to rely on belated knowledge or a lack of knowledge, when objectively the conditions of subsection 43(8) were met: an appropriate officer performing the full powers of the position was familiar with the components of the contravention and the identity of its perpetrator.

[66]            Both the Adjudication Board and the External Committee concluded that Supt. Sugrue had the knowledge required by subsection 43(8) of the Act before he assumed the position of appropriate officer in May 1999: see decision of External Committee, appeal book, vol. I, page 177, paragraph 12. There is no question, and this is the conclusion to which I must inevitably come, that the filing of disciplinary complaints on October 23, 2000, was beyond the limitation period set out in subsection 43(8) of the Act. At that time, the appropriate officer could not initiate a hearing of the Adjudication Board.

[67]            As mentioned earlier, the judge took a different approach in concluding that the limitation period did not apply. Essentially, and his reasoning and approach are to be found at paragraphs 34, 35 and 42 to 49 of his judgment, he concluded that the knowledge referred to in subsection 43(8) of the Act could not exist so long as the internal RCMP investigations had not been completed and all the facts were not known in order to exercise the right of prosecution. This conclusion is apparent from paragraph 48 of his judgment, which I set out below:

I adhere to the respondent's thesis that [TRANSLATION] "the appropriate officer must have had knowledge of all the facts that are necessary to enable him or her to decide with full knowledge of the case whether he or she should or should not initiate a disciplinary hearing" (Respondent's Record, page 78). In my opinion, O/C Lange was informed of all the necessary facts on November 8, 1999 and it was from that date that the one-year limitation period ran.

[68]            With respect, the judge confused limitation and exercise of the right of prosecution, the purposes of which may be complementary but are clearly different, and require different evidence.

[69]            To start the limitation period running, it is not necessary to have available all the evidence or information required to carry out a prosecution. It is not necessary to have reasonable grounds for prosecution. The position taken by the judge has the effect of extending the limitation period beyond what is contemplated by subsection 43(8) of the Act. It amounts to inserting in the provision conditions that are not there. Subsection 43(8) requires knowledge of the contravention and of the identity of its perpetrator. Adopting the judge's position amounts to re-writing it as follows:

No hearing may be initiated by an appropriate officer under this section in respect of an alleged contravention of the Code of Conduct by a member after the expiration of one year from the time the contravention and the identity of that member became known to the appropriate officer and from the time the appropriate officer has knowledge of all the facts enabling him to decide whether to prosecute.

(Emphasis refers to additions to the provision.)

CONCLUSION

[70]            For these reasons, I consider that the proceedings brought against the appellant were subject to limitation and that a hearing before an Adjudication Board could not be initiated. My determination may seem shocking in view of the evidence of the facts presented against the appellant at the hearing by the Adjudication Board; however, it is the result of the handling of this case by the appellant's superiors and it is imposed by the Act.

[71]            Consequently, I would allow the appeal with costs, I would set aside the judgment of the Federal Court judge and, making the decision which should have been made, I would allow the application for judicial review with costs and set aside the decision of the RCMP Commissioner ordering the appellant's dismissal.

"Gilles Létourneau"

"I concur.

            M. Nadon J.A."

"I concur.

            J.D. Denis Pelletier J.A."

Certified true translation

K.A. Harvey

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET:                                                 A-628-04

STYLE OF CAUSE:                                 GÉRARD THÉRIAULT v. APPROPRIATE OFFICER OF C DIVISION OF ROYAL CANADIAN MOUNTED POLICE et al.

PLACE OF HEARING:                           Montréal, Quebec

DATE OF HEARING:                             January 9, 2006

REASONS FOR JUDGMENT BY:        LÉTOURNEAU J.A.

CONCURRED IN BY:                            NADON J.A.

                                                                  PELLETIER J.A.

DATE OF REASONS:                             February 10, 2006

APPEARANCES:

James R.K. Duggan	FOR THE APPELLANT
Raymond Piché Paul Deschênes	FOR THE RESPONDENTS

SOLICITORS OF RECORD:

Montréal, Quebec	FOR THE APPELLANT
John H. Sims, Q.C. Deputy Attorney General of Canada Montréal, Quebec	FOR THE RESPONDENTS