Federal Court of Appeal Decisions

 

Date: 20060822

Docket: A-314-05

Citation: 2006 FCA 283

 

CORAM:       NOËL J.A.

                        NADON J.A. 

                        EVANS J.A.

 

BETWEEN:

ROBERT A. READ

Appellant

and

ATTORNEY GENERAL OF CANADA

Respondent

 

 

 

Heard at Ottawa, Ontario, on May 3, 2006.

Judgment delivered at Ottawa, Ontario, on August 22, 2006.

 

REASONS FOR JUDGMENT BY:                                                                               NADON J.A.

CONCURRED IN BY:                                                                                                      NOËL J.A.

                                                                                                                                       EVANS J.A.

 

 

Date: 20060822

Docket: A-314-05

Citation: 2006 FCA 283

 

CORAM:       NOËL J.A.

                        NADON J.A.             

                        EVANS J.A.

 

BETWEEN:

ROBERT A. READ

Appellant

and

ATTORNEY GENERAL OF CANADA

Respondent

 

 

REASONS FOR JUDGMENT

 

NADON J.A.

 

[1]   This is an appeal from a decision of Harrington J. of the Federal Court, 2005 FC 798, dated June 2, 2005, which dismissed the appellant’s judicial review application of a decision of Assistant Commissioner Killam of the Royal Canadian Mounted Police (the RCMP).

 

[2]   A RCMP Internal Adjudication Board (the Board) found that allegations of disgraceful conduct made against the appellant, a RCMP Officer, had been established and, hence, it directed that the appellant resign from the RCMP within 15 days, failing which he would be dismissed. Notwithstanding the decision of the RCMP’s External Review Committee, which recommended that the appellant’s appeal of the Board’s finding on the allegations of misconduct be allowed, the Assistant Commissioner concluded that the appellant had breached his duty of loyalty to the RCMP and that there was no justification for that breach. As a result, the Assistant Commissioner upheld the sanction imposed by the Board on the appellant.

 

[3]   At issue in these proceedings is the appellant’s defence of “whistle-blowing”. In other words, was it permissible for the appellant to breach his duty of loyalty to his employer by disclosing confidential documents and information to the media, based on suspicions of wrongdoing on the part of his employer? The Application Judge, at paragraphs 5 and 6 of his Reasons, explained the appellant’s defence in the following terms:

 [5]        His defence was that he had done no wrong, that he always remained true to his Oaths. He disobeyed the order not to go public because the order was unlawful. His superior officer was a criminal trying to cover up serious wrongdoing and incompetence within Citizenship and Immigration Canada, External Affairs and the RCMP itself.

 

[6]         He thought criminals had infiltrated the computer system in Hong Kong and were able to issue false visas. Our national security was at stake but the RCMP would do nothing to stop it. It was only as a last resort that he spoke to the media in the public interest in order to stamp out this evil and bring criminals to justice.

 

 

THE FACTS

[4]   Although the facts were carefully and thoroughly reviewed by the Judge below, a brief review thereof remains necessary in order to place the matter in its proper context.

 

[5]   The appellant, Corporal Robert Read, enlisted in the RCMP in 1975. As a result of the events which I shall shortly be relating, he was accused of having divulged classified information and documents to the press in breach of his Oaths of allegiance, of office and of secrecy, and in breach of the RCMP Code of Conduct, as well as having violated an order from a superior officer not to go public with information pertaining to an investigation into suspected criminal activity at the Immigration Section of the Canadian Mission in Hong Kong (the Hong Kong Mission).

 

[6]   In justification of his decision to go public, the appellant relies, inter alia, on the fact that his superiors were attempting to cover-up the wrongdoing which occurred at the Hong Kong Mission. He believes that the issue is one of national security and that disclosure to the media as a last resort was in the public interest, in order to bring attention to suspected corruption and criminal activity.

 

[7]   There were three RCMP investigations into the suspected criminal activity at the Hong Kong Mission between 1991 and 1999. The appellant was assigned to the third investigation on September 4, 1996.

 

[8]   In 1991, the RCMP was alerted to potential security breaches and corruption in the Immigration Section at the Hong Kong Mission.  A couple was purportedly contacted by individuals claiming to be employees of the Hong Kong Mission and offered a fast-tracking of their immigration application in exchange for $10,000. Fraudulent visa stamps were also found at the desk of a former employee of the Hong Kong Mission. Finally, two employees of the Hong Kong Mission who had access to the Computer Assisted Immigration Processing System (the CAIPS), were seen depositing a large amount of cash at a bank.

 

[9]   As a result of these allegations, the RCMP began investigating the matter.  Sgt. Conohan of the RCMP was sent to Hong Kong, along with David Balser, a security expert with External Affairs (now the Department of Foreign Affairs). This investigation culminated in what is known as the Balser Report, a confidential document which addressed the administrative shortcomings in the CAIPS, a system used, among other things, for the processing of visas.

 

[10]           In the course of the investigation, Sgt. Conohan met with Brian McAdam, an individual who worked in the Immigration Section of the Hong Kong Mission. Mr. McAdam suspected that criminal organizations known as triads had infiltrated the CAIPS with the assistance of someone working at the Hong Kong Mission. Sgt. Conohan subsequently closed the RCMP files, however, as he was unable to identify suspects with respect to the corruption allegations.

 

[11]           In 1993, a second RCMP investigation was initiated, following further allegations of corruption at the Hong Kong Mission.  Sgt. Puchniak (later Staff Sergeant Puchniak) interviewed by telephone a number of former Hong Kong Mission employees. He recommended to his superiors that he be allowed to travel to Hong Kong to pursue the investigation, but his recommendation was rejected. Sgt. Puchniak closed the file since, in his view, it was not feasible to interview former employees once they returned to Canada because they would have had by then the opportunity to discuss amongst themselves the matters about which the RCMP intended to question them.

 

[12]           The third investigation commenced in May of 1995, following a complaint by Mr. McAdam of the Hong Kong Mission who had since retired from the foreign service.  He had broached the issue with M.P. David Kilgour, then-Deputy Speaker of the House of Commons, who, as a result, requested a public inquiry, which the Minister of Citizenship and Immigration denied. Instead, a third investigation was initiated by the RCMP to determine whether any wrongdoing had occurred.

 

[13]           Inspector Dubé of the RCMP (later a Superintendent) was assigned to the investigation in 1996. He interviewed Mr. McAdam, but found his allegations to be overly broad and the problem most likely solved by the passage of time and the arrival of new employees at the Hong Kong Mission.

 

[14]           Supt. Dubé nonetheless approached the appellant in September 1996 and requested that he review the file and the allegations made by Mr. McAdam. Supt. Dubé soon found that the appellant lacked the necessary objectivity to undertake such an investigation because he drew conclusions unsupported by the evidence and failed to examine other plausible explanations with respect to the issues under investigation. Consequently, on September 2, 1997, Supt. Dubé removed the appellant from the investigation and replaced him with Sgt. Pasin who, on December 3, 1999, submitted his final investigation report.

 

[15]           Following his reassignment, the appellant complained to the RCMP Ethics Advisor that Supt. Dubé and Sgt. Conohan were attempting to cover-up wrongdoing at the Hong Kong Mission. That complaint was dismissed. Moreover, in January 1999, the appellant complained to the Office of the Auditor General, which issued a report criticizing the lack of security measures in the immigration system.

[16]           Supt. Dubé contacted the appellant in 1999 directing him not to discuss the investigation with the media. At the same time, Supt. Dubé questioned the appellant regarding a missing box of documents. Following this exchange and a meeting with Sgt. Pasin regarding the missing box of documents, Supt. Dubé requested an investigation into the appellant’s conduct with respect to classified information which he believed the appellant had disclosed to Mr. McAdam and to the appellant’s failure to cooperate with the continuing RCMP investigation. However, the request for an investigation was denied due to the fact that Supt. Dubé was no longer the appellant’s line officer.

 

[17]           The appellant contacted the media following these events to express his concern over the RCMP’s handling of the investigations. He provided journalists with the Balser Report, a classified document, as well as other investigative reports. He also provided the media with a copy of his complaint to the RCMP Public Complaints Commission (the PCC) wherein he complained that senior members of the RCMP had failed to investigate corruption at the Hong Kong Mission. The complaint contained several classified documents relating to the Hong Kong investigation, including the Balser Report. Approximately 50 newspaper articles and TV broadcasts resulted from the appellant’s disclosure. As an example, the following appeared, in part, in the Vancouver Province of August 26, 1999:

‘A breach of national security’

Files at Canada’s diplomatic mission in Hong Kong were infiltrated

Fabian Dawson, Staff Report, The Province

 

Chinese nationals linked to organized crime have broken into the immigration computer at Canada’s diplomatic mission in Hong Kong, classified documents obtained by The Province allege.

 

At least 788 files from the Computer-Assisted Immigration Processing System (CAIPS) were deleted, and up to 2,000 blank visa forms have disappeared, according to the documents.

 

The core allegations are:

§      That certain people paid locally engaged staff of the Canadian commission (now the consulate-general) to delete their backgrounds in the computer system to hide their links with triads – the Chinese Mafia.

§      That the visa forms have been used by possibly hundreds of people, including criminals, to enter Canada illegally.

 

For seven years, the RCMP, Immigration Canada and the Department of External Affairs are alleged to have kept a lid on the case, unwilling to reveal the extent of what several sources call a “breach of national security.”

 

Two key figures in the investigation suspect the RCMP is covering up criminal acts and negligence at Canada’s immigration office in Hong Kong.

 

Details of the case are contained in reports filed by Robert Read, an RCMP corporal in Ottawa, and Brian McAdam, a former immigration control officer at the Canadian commission in Hong Kong.

 

“I believe there has been a massive conspiracy to cover up the whole issue,” Read said.

 

In a report marked Top Secret, he wrote: “The loss of control of CAIPS … loss of control over immigration from Hong Kong … from 1986 to 1992 is a most serious breach of national security.”

 

Read, who has written orders from his boss, Insp. Jean Dubé, not to talk to the media, told The Province: “I am going public because there needs to be a public inquiry into this whole thing.”

 

…

 

“If the RCMP does tell the government that a disaster has occurred,” said Read, “the government cannot decide how to react to it, cannot decide what to tell the people of Canada what has occurred.

 

“They have Balser’s report, McAdam’s testimony, the missing files in Hong Kong … and my report”.

 

“Why won’t they do anything?”

 

[Emphasis added]

 

 

[18]           On September 10, 1999, RCMP Commissioner Zaccardelli requested an administrative file review of the appellant’s allegations of corruption at the Hong Kong Mission, as well as his allegations of wrongdoing by senior RCMP officers.

 

[19]           The administrative file review was conducted by three officers of the RCMP who had had no involvement in the Hong Kong investigations. They issued their report on October 4, 1999, and found no evidence of a cover-up or obstruction by members of the RCMP or by employees of Citizenship and Immigration Canada (CIC).

 

[20]           On August 11, 2000, the RCMP commenced disciplinary proceedings against the appellant and, on May 31, 2002, the Board concluded that the appellant’s conduct was disgraceful and recommended that he be dismissed from the Force. In so concluding, the Board held that the appellant’s defence of whistle-blowing was not made out.

 

[21]           As a result of the Board’s decision, the appellant, pursuant to subsection 45.14(1) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the Act), appealed the matter to the Commissioner of the RCMP. As prescribed by subsection 45.15(1) of the Act, the Commissioner referred the appellant’s case to the RCMP’s External Review Committee (the Review Committee) which concluded, on September 10, 2003, that the appellant’s disclosure concerned a matter of public interest because the RCMP had failed to take appropriate actions with respect to the allegations of corruption at the Hong Kong Mission. As a result, the Review Committee recommended that his appeal from the Board’s findings on the allegations of misconduct be allowed.

 

[22]           Following the decision of the Review Committee, the appeal remained for consideration by the Commissioner, pursuant to subsection 45.16(1) of the Act. However, by reason of his prior involvement in the appellant’s case, the Commissioner determined that he was unable to adjudicate the appeal. As a result, pursuant to subsection 15(2) of the Act, the appellant’s appeal was heard by Assistant Commissioner Tim Killam who, on January 15, 2004, dismissed his appeal, thereby upholding the Board’s finding of disgraceful conduct and directing that the appellant be dismissed. In so concluding, the Assistant Commissioner could not agree with the Review Committee’s recommendation.

 

[23]           On February 20, 2004, the appellant commenced judicial review proceedings seeking to set aside Assistant Commissioner Killam’s decision. On June 2, 2005, Harrington J. dismissed his application. Paragraph 142 of the learned Application Judge’s Reasons encapsulates well his rationale in dismissing the appellant’s proceedings:

[142]     Cpl. Read owed a duty of loyalty to the RCMP. He made public classified documentation and information in breach of that duty. His "whistle-blowing" defence is not made out in this case. There simply was not enough evidence to lend credence to his allegations. The restrictions on his right to speak out, as long established at common law and as set out in the Royal Canadian Mounted Police Act and regulations thereunder, are reasonable within the context of section 1 of the Charter. The need for an impartial and effective police force prevails. The decision of Asst. Commissioner Killam that Cpl. Read breached the RCMP Code of Ethics stands up to judicial review, as does the sanction that he be dismissed from the Force.

 

[Emphasis added]

 

 

[24]           The appellant seeks to overturn Harrington J.’s decision and to set aside the Assistant Commissioner’s decision.

 

LEGISLATION

[25]           The following provisions of the Act and of the Royal Canadian Mounted Police Regulations, 1998, are relevant to the issues before us and I therefore reproduce them:

 

[26]           Also of relevance is subsection 2(b) of the Canadian Charter of Rights and Freedom, Part I of the Constitution Act, 1982, Schedule B to the Canada Act

 

THE ISSUES

[27]           The issue in this appeal is whether the Application Judge erred in dismissing the appellant’s judicial review proceedings. More particularly, did the learned Judge err in concluding that the appellant’s defence of “whistle-blowing” was not made out? In broader terms, the appeal raises an issue as to the balance which must be struck between an employee’s duty of loyalty to his employer and his constitutional right to freedom of expression, as guaranteed by subsection 2(b) of the Charter.

 

THE RELEVANT JURISPRUDENCE

[28]           Before reviewing Assistant Commissioner Killam’s decision, I shall examine the jurisprudence pertaining to a public servant’s duty of loyalty to his employer.

 

[29]           The parties are in agreement that the appellant’s duty of loyalty to his employer limits his freedom of expression as guaranteed by subsection 2(b) of the Charter. There is a dispute, however, as to where the line should be drawn between these competing values.

 

[30]           A review of the case law necessarily begins with the Supreme Court of Canada’s decision in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, where Dickson C.J. enunciated the principles which, to this day, constitute the frame of reference whenever a defence of “whistle-blowing” is raised.

 

[31]           At issue in Fraser, supra, was the right of a public servant, an employee of Revenue Canada, to publicly criticize the Federal Government’s policies concerning metrification and the constitutional entrenchment of a charter of rights. Dickson C.J. formulated the guiding principle as follows: although public servants must be loyal to their employer, they could, in certain circumstances, express publicly their opposition to the Government’s policies. In other words, the Chief Justice was of the view that it would not be sensible to prohibit outright public servants from criticizing the Government. Thus, for Dickson C.J., the real question at issue was the drawing of the line between competing values.

 

[32]           Before setting out those circumstances which, in his view, would allow a public servant to criticize or oppose Government policies, Dickson C.J. pointed to the fact that employment in the public service had two dimensions, namely, one relating to an employee’s tasks and how the employee performed them, and the other relating to the public’s perception of the job.

 

[33]           In the case before him, Dickson C.J. approved the Adjudicator’s finding that Mr. Fraser’s criticisms of the Government’s policies “were job-related” (Fraser, supra, p. 469). The importance of this finding, in his view, stemmed from the fact that an impartial and effective public service was important and necessary, considering that the federal public service was part of the Executive Branch of Government, whose task was to administer and implement the Government’s policies. Hence, it was important for the public service to employ people who were knowledgeable, fair, honest and impartial.

 

[34]           The Chief Justice then went on to say that a further characteristic required of public servants was loyalty. In making that observation, he formulated the principle which is at the centre of the debate before us. At page 470, Dickson C.J. stated:

As the Adjudicator indicated, a further characteristic is loyalty. As a general rule, federal public servants should be loyal to their employer, the Government of Canada. The loyalty owed is to the Government of Canada, not the political party in power at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies. And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies. In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was inconsistent with his duties as an employee of the Government.

 

[Emphasis added]

 

 

[35]           Dickson C.J. then explained why it was important, if not crucial, to ensure that public servants remained loyal to their employer, i.e., that it was in the public interest to maintain an impartial public service. At pages 470 and 471, he put it as follows:

                As the Adjudicator pointed out, there is a powerful reason for this general requirement of loyalty, namely the public interest in both the actual, and apparent, impartiality of the public service. […]

 

                There is in Canada, in my opinion, a similar tradition [to that of England] surrounding our public service. The tradition emphasizes the characteristics of impartiality, neutrality, fairness and integrity. A person entering the public service or one already employed there must know, or at least be deemed to know, that employment in the public service involves acceptance of certain restraints. One of the most important of those restraints is to exercise caution when it comes to making criticisms of the Government.

 

[Emphasis added]

 

 

[36]           One last point from the Fraser, supra, decision deserves mention. In concluding as he did, Dickson C.J. made it clear that the determination of the degree of restraint to which a public servant would be held was “relative to the position and visibility of the civil servant” (see p. 466).

 

[37]           I now turn to a number of decisions rendered by the Federal Court and by this Court. In Haydon v. Canada, [2001] 2 F.C. 8 (Haydon No. 1), the employees, drug evaluators in the Pharmaceutical Assessment Division of the Bureau of Veterinary Drugs, Food Directorate, Health Protection Branch of Health Canada, gave interviews on Canada AM, a national television program on the CTV network, during which they expressed serious concerns with respect to their employer’s drug review process and the impact thereof on the health of Canadians. Both employees were reprimanded by their employer, who concluded that they had breached their duty of loyalty. The employees filed grievances which ultimately reached the Associate Deputy Minister, who denied them. The Assistant Deputy Minister concluded that although public servants enjoyed freedom of expression and could participate in public discussions of public issues, there were limits to their freedom of expression, which included their duty of loyalty to their employer.

 

[38]           The employees commenced judicial review proceedings in the Federal Court. On September 5, 2000, Madam Justice Tremblay-Lamer allowed their application on the ground that their public criticism fell within the “public health and safety” exceptions set forth in Fraser, supra. In so concluding, the learned Judge commented as follows, at paragraph 83, on the exceptions to the common law duty of loyalty formulated by Dickson C.J. in Fraser, supra.:

[83]      In my opinion, these exceptions embrace matters of public concern. They ensure that the duty of loyalty impairs the freedom of expression as little as reasonably possible in order to achieve the objective of an impartial and effective public service. Where a matter is of legitimate public concern requiring a public debate, the duty of loyalty cannot be absolute to the extent of preventing public disclosure by a government official. The common law duty of loyalty does not impose unquestioning silence. As explained in Fraser, the duty of loyalty is qualified: "[...] some speech by public servants concerning public issues is permitted." It is my understanding that these exceptions to the common law rule may be justified wherever the public interest is served. In this regard, the importance of the public interest in disclosure of wrongdoing, referred to as "the defence of whistleblowing", has been recognized in other jurisdictions as an exception to the common law duty of loyalty.

 

[Emphasis added]

 

 

 

[39]           I should point out that at paragraph 89 of her Reasons, Madam Justice Tremblay-Lamer, after a careful section 1 analysis based on the test set out in The Queen v. Oakes, [1986] 1 S.C.R. 103, concluded that the common law duty of loyalty, as enunciated in Fraser, supra, “… sufficiently accommodates the freedom of expression as guaranteed by the Charter, and therefore constitutes a reasonable limit within the meaning of section 1 of the Charter”.

 

[40]           A more recent decision is this Court’s decision in Haydon v. Canada (Treasury Board), 2005 FCA 249, dated June 30, 2005 (Haydon No. 2). The employee, Dr. Haydon, a veterinarian employed by Health Canada as a drug evaluator, was suspended for ten working days by her employer for comments attributed to her in a newspaper article which appeared in the Globe and Mail.

 

[41]           She filed a grievance requesting, inter alia, that her suspension be rescinded and that she be reimbursed all lost salary and benefits. Before the Adjudicator, Dr. Haydon argued that by reason of her Charter rights, she was entitled to make her views known to the public. The Adjudicator dismissed her argument on the ground that she had made no attempt to resolve her concerns through the appropriate internal channels, adding that if he were wrong on that point, he would have concluded that Dr. Haydon’s statement to the press did not fall within the exceptions to the duty of loyalty as formulated in Fraser, supra, because her statement did not relate to health and safety.

 

[42]           Dr. Haydon then commenced judicial review proceedings before the Federal Court. On May 21, 2004, Martineau J. concluded that the Adjudicator had not erred in finding that Dr. Haydon had breached her duty of loyalty and that the ten-day suspension was justified. In concluding as he did, Martineau J., at paragraph 49 of his Reasons, outlined the factors which, in his view, were relevant to a determination of whether or not a public servant had breached her duty of loyalty in publicly criticizing her employer:

[49]            In light of the above, the following factors are relevant in determining whether or not a public service employee who makes a public criticism breaches his or her duty of loyalty towards the employer: the working level of the employee within the Government hierarchy; the nature and content of the expression; the visibility of the expression; the sensitivity of the issue discussed; the truth of the statement made; the steps taken by the employee to determine the facts before speaking; the efforts made by the employee to raise his or her concerns with the employer; the extent to which the employer's reputation was damaged; and the impact on the employer's ability to conduct business.

 

[Emphasis added]

 

 

[43]           On appeal to this Court, Dr. Haydon argued that Martineau J. had erred in concluding that her employer had just and sufficient cause to suspend her. After carefully reviewing the governing principles as enunciated in Fraser, supra, and Haydon No. 1, Desjardins J.A., writing for the Court, concluded that the learned Judge had made no error. She expressed her view in the following way, at paragraph 40:

             The adjudicator found that in stating that there was no difference in risk between Brazilian beef and Canadian beef, the appellant's comments did not fall within the exceptions to the duty of loyalty recognized in Fraser. She was not denouncing a policy which jeopardized the life, health or safety of Canadians. She was commenting on the decision of the CFIA, which she felt was a political move. The Federal Court judge, at paragraph 69 of his reasons, found that the adjudicator did not err in law and that his decision was one that could reasonably have been made based on the evidence on the record. The Federal Court judge held that this was not a case of "whistleblowing". In his view, the appellant's reported statements did not involve public interest issues of the same order as in Haydon No. 1. They did not address pressing issues such as jeopardy to public health and safety (or government illegality). Moreover, he wrote, the evidence revealed that the appellant did not check her facts nor did she raise her concern internally before speaking to The Globe and Mail. Her statements did not appear to be accurate. They nevertheless carried significant weight because she was a scientist. Her comments had an adverse impact on the operations of the Government of Canada. As a result, he said, the adjudicator made no reviewable error neither on a standard of patent unreasonableness nor on a standard of reasonableness. I find no error in that conclusion.

 

[Emphasis added]

[44]           In concluding as she did, Madam Justice Desjardins pointed out that Dr. Haydon had not taken the position that a public servant’s duty of loyalty to his or her employer did not constitute a reasonable and justifiable limit on her Charter right of freedom of expression, within the meaning of section 1 of the Charter. In so stating, she expressly referred to paragraph 89 of Tremblay-Lamer J.’s decision in Haydon No. 1, where the learned Judge expressed the view that by reason of the exceptions enunciated in Fraser, supra, to the common law duty of loyalty, a public servant’s freedom of expression was not unreasonably limited within the meaning of section 1 of the Charter.

 

[45]           In Chopra v. Canada (Treasury Board), 2005 FC 958, dated July 8, 2005, currently on appeal before this Court, the applicant, Dr. Chopra, a microbiologist and veterinarian employed in the Human Safety Division of the Veterinary Drugs Directorate of Health Canada, was suspended without pay by his employer for a period of five working days, for comments to the press wherein he criticized his employer for needlessly scaring people, following the September 11, 2001 terrorist attacks in New York, on recommending to the Minister of Health that antibiotics and vaccines should be stockpiled to combat anthrax and smallpox, in case the diseases were unleashed by a terrorist attack.

 

[46]           Following the dismissal of his grievance by the Adjudicator, Dr. Chopra commenced judicial review proceedings in the Federal Court. Before MacKay J., Dr. Chopra argued that the Fraser, supra, exceptions to the common law duty of loyalty were not exhaustive, and that in Haydon No. 1, Madam Justice Tremblay-Lamer had set out a further exception, namely, that a public servant could speak out regarding issues pertaining to a legitimate public interest. Dr. Chopra argued that the Adjudicator had erred in not considering Dr. Chopra’s comments in the light of that exception. MacKay J. disposed of that argument in the following terms at paragraph 27 of his Reasons:

             I am not persuaded that my colleague did recognize a further exception. Her use of generic words, "matters of legitimate public concern", in my opinion, were intended only as a general description underlying the exceptions already established by Fraser. Indeed, in Haydon No. 1 the decision of an Associate Deputy Minister imposing discipline in relation to public comments of Dr. Chopra and another, was found to be unreasonable, inter alia, in failing to recognize that the public comments were within the first exception set out by Fraser, i.e., public criticism in relation to safety and efficacy of the drug approval process of Health Canada, a matter of public health and safety.

 

[Emphasis added]

 

 

[47]           The next case I wish to refer to is this Court’s decision in Grahn v. Canada (Treasury Board), [1987] F.C.J. No. 36 (Q.L.). In that case, Mr. Grahn, a public servant employed at the Canada Employment and Immigration Commission, publicly criticized his employer, stating that his superiors were guilty of “tolerating” frauds upon the Unemployment Insurance Fund and of committing what he called breaches of “Privacy Laws”.

 

[48]           Mr. Grahn was discharged from the public service and his grievance to the Public Service Staff Relations Board (the Board) was dismissed. He then commenced judicial review proceedings before this Court. After stating the principle formulated by Dickson C.J. in Fraser, supra, Hugessen J.A., writing for the Court, made the following comments at page 2 of his Reasons:

The fact remains, however, that having chosen the drastic course of publicly accusing his superiors of illegalities, it was up to the applicant to prove his allegations if he wished to avoid the otherwise natural consequences of his actions. As the applicant himself admitted at the hearing before us, the record is devoid of such proof. The applicant’s own unsubstantiated allegations are certainly not enough.

 

[Emphasis added]

 

 

[49]           I wish to refer to one last case. In Stenhouse v. Canada (Attorney General), 2004 FC 375, dated March 12, 2004, the Federal Court dealt with an application for judicial review of a decision of the Commissioner of the RCMP which confirmed a recommendation of the External Review Committee that the applicant, a member of the RCMP, resign within 14 days or be dismissed from the Force.

 

[50]           The disciplinary measures resulted from the unauthorized disclosure by the applicant to the Canadian writer of a book entitled “Hell’s Angels at War”, of confidential RCMP documents and other confidential police documents pertaining to Force strategies in respect of outlaw motorcycle gangs (OMGs).

 

[51]           The applicant had been involved in undercover operations and worked in the areas of drug enforcement, homicide, intelligence and organized crime investigations. He developed a particular interest in outlaw motorcycle gangs and policing strategies in regard thereto. In 1986, he was transferred to the OMG Intelligence Unit. Because of his interest in the area, he was selected to represent the RCMP, in 1998, on the Organized Crime Working Committee, which led him to draft several briefing notes and memoranda to the RCMP Criminal Operations officials, suggesting that there were flaws in the current models of OMG policing and proposing alternative ways of improved policing. At paragraph 7 of his Reasons, Kelen J. sets out the applicant’s reasons for going public and disclosing confidential documents:

                  The applicant alleges that he released the confidential documents out of frustration, because, in his opinion, the RCMP was conducting minimal investigations into the criminal activity of the Hells Angels motorcycle gang, while at the same time conducting a media campaign urging the public to exert pressure on the Government to provide police with more resources. He alleges that OMGs were not being properly investigated, and that there was a serious risk that any threat they posed to the public would not be properly addressed. The applicant claims he released the documents to corroborate his assertions regarding the policing of OMGs, and only after he had considered his legal, moral, and ethical obligations to his employer. The applicant further claims that his disclosure resulted in no harm, other than embarrassment, to the RCMP.

 

[Emphasis added]

 

 

[52]           The Judge then reviewed the case law pertaining to the “whistle-blowing” defence and the External Review Committee’s reasons for recommending that the applicant be dismissed.  These reasons included the fact that the disclosure had not been made for the purpose of exposing an illegal act by the RCMP or a policy which would jeopardize the life, health or safety of the public, that the disclosure negatively impacted on the applicant’s ability to perform in an effective way his future duties as an RCMP officer and that the true reason for the breach of confidence was the applicant’s disagreement and dissatisfaction with RCMP internal policy in respect of the allocation of resources to tackle OMGs.  At paragraph 39 of his Reasons, the Judge explained why, in the circumstances, he could not retain the applicant’s defence:

           While the freedom of public servants and, in the present case, members of the RCMP, to speak out is protected in common law and by the Charter, the "whistle-blowing" defence must be used responsibly. It is not a license for disgruntled employees to breach their common law duty of loyalty or their oath of secrecy. In this case, the confidential documents disclosed by the applicant reflected his disagreement with confidential RCMP policy on the allocation of resources to fight crime. The documents do not disclose either an illegal act by the RCMP or a practice or policy which endangers the life, health or safety of the public. The RCMP policy at issue involves the allocation of RCMP resources to fighting different types of crime - - a policy with which the applicant disagreed, but a confidential policy properly decided by senior RCMP management who know and understand the "big picture" of crime in Canada. Accordingly, while the Court recognizes the important objectives served by the availability of the "whistle-blowing" defence, the Court agrees that it does not apply in the present circumstances.

 

[Emphasis added]

THE ASSISTANT COMMISSIONER’S DECISION

[53]           With these principles in mind, I now turn to the Assistant Commissioner’s decision. In doing so, I must necessarily review the Board’s decision which the Assistant Commissioner found to be without error, and the Review Committee’s decision which, contrary to the Board’s decision, recommended that the appellant not be dismissed.

 

[54]           The Board found that in providing confidential information and documents concerning an operational investigation to Mr. McAdam and the media, the appellant had acted in a disgraceful manner. At page 43 of its Reasons (Appeal Book, Vol. I, p. 102), the Board wrote as follows:

Whether Contravention Established

 

The Board finds the conduct of Cpl. Read disgraceful. He breached his Oath of Secrecy without lawful excuse, which in itself is a disgrace, and gave confidential information and documents about an operational investigation to Mr. McAdam and the media, which is, for a peace officer, a most serious failure to duties and obligations. This is also a disgrace for Cpl. Read as a member of the RCMP and impacts on his professional life. Cpl. Read not only breached the trust of the RCMP but that of the public and the judicial system.

 

The Board is particularly concerned by the fact several documents that came from a criminal investigation not as yet complete were handed over to the media without restraint or vetting. These documents identified several individuals Cpl. Read found suspects. These public disclosures had the potential to cause unnecessary prejudice and embarrassment to serving or retired Public Servants and may have affected them professionally. Cpl. Read’s conduct was not only disgraceful, it was also outrageous.

 

The Board concludes the conduct of Cpl. Read brought discredit on the RCMP. Actual discredit is not required and the Board only needs to find the conduct could bring discredit. In the instant case, we find Cpl. Read did discredit the RCMP by the public disclosure of protected information and documents which resulted in embarrassment for both the RCMP and the government. The various articles in evidence showed this matter was widely covered by the media. Individuals who were subject of the investigation were identified by the media and one was tracked down because of the help provided by Cpl. Read. Dickson CJC stated in Fraser “the public service must employ people with certain important characteristics. Knowledge is one, fairness is another, integrity is a third . […][A] further characteristic is loyalty.” Cpl. Read failed to remain loyal to his office and to the RCMP and brought discredit to the RCMP.

 

 

[55]           In reaching that conclusion, the Board dismissed the appellant’s defence of “whistle-blowing”. The Board began its inquiry in regard to his defence by stating that he had breached his oath of secrecy in that there was no justification for doing what he did because there was no evidence whatsoever of serious illegal acts or policies which placed at risk the life, health or safety of the public. In the Board’s view, the appellant had to demonstrate that there existed circumstances that “were so grievous as to outweigh the interests of the RCMP in the confidentiality of its investigations and the information in its trust in favour of the public interest” (Page 35 of the decision: Appeal Book, Vol. I, p. 94).

 

[56]           In addressing the appellant’s defence of “whistle-blowing”, the Board referred to the decision that it rendered in The Appropriate Officer “F” Division v. S/Sgt. Stenhouse (2001), 11 A.D. (3d) 1, where, in concluding that in determining whether it was permissible to breach one’s oath of secrecy and duty of loyalty to one’s employer, RCMP officers were to be held to a higher standard than other public servants, the Board sets forth its rationale for that conclusion in the following terms:

… Here lies two important distinctions that must be made in regard to the RCMP. Members of the RCMP are holders of a public office as opposed to being public servants, and they are bound by their Oaths of Allegiance of Office, and of Secrecy under specific legislation as opposed to simply a common law duty of loyalty.

 

A member of the RCMP has a dual role as an employee and as an office holder. Thus members are “engaged in duties connected with the maintenance of public order and preservation of the important values in any society” (see Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311). They must preserve their independence. The oaths taken by members of the RCMP are codified and found in the RCMP Act. They include a duty of diligence, of obedience and of secrecy. These two distinctions, in our view, considerably raise the standard where it becomes permissible for a member to breach any of the oaths.

 

The Board examined the interests at play. The RCMP, as an employer and as a police force, must employ people with important characteristics such as honesty, integrity, judgment, responsibility and fairness. This is essential in maintaining an efficient and effective Force and in maintaining the trust of the public. The RCMP is entitled to pursue its organizational goals and to expect that members will accept and strive to attain these goals. On the other hand, the public has an interest in ensuring its police force is transparent, accountable and beyond reproach. Various mechanisms exist to attain this interest, such as the Public Complaints Commission and an open and transparent disciplinary process.

 

The Board concludes from the above that only serious illegal acts or policies that put at risk the life, health or safety of the public may justify a member breaching his or her oaths. These cases would be extremely rare and be so grievous as to outweigh the interests of the RCMP in the confidentiality of its investigations and the information in its trust. In such a case, a member would bear the burden of proving the action complained of, and would also need to prove that all avenues were internally exhausted before using external sources. The member would still have to adopt a conduct that is responsible and measured.

 

[Emphasis added]

 

 

[57]           The Board examined the issue under three headings. Firstly, what was the appellant’s true intent in going public? Secondly, did the Hong Kong investigation and what the investigation uncovered constitute a matter of public interest so as to justify the appellant’s breach of his oaths? Lastly, did the appellant’s removal from the investigation and the allegations made against his superiors constitute a matter of public interest so as to justify the breach of his oaths?

 

[58]           With respect to the first heading, the Board concluded that the appellant had not gone public by reason of his knowledge of illegal acts or policies which placed in jeopardy the life, health or safety of the public, but rather, because he believed that going public would bolster his position should the RCMP attempt to investigate him. Although the Board was of the view that this conclusion was sufficient to reject the appellant’s defence, it nonetheless continued its inquiry in respect of the other headings. Although these headings are separate, the Board, in effect, treated them as one, and I shall do so as well.

 

[59]           In regard to these headings, the Board made a number of findings. It found that the first investigation conducted by Sgt. Conohan had been “lacking”, and that the investigation took a different turn following Mr. McAdam’s complaint. The Board found that the RCMP investigations in Hong Kong competed with other investigations for resources and that investigations had to be prioritized. The Board further found that Supt. Dubé had entrusted the Hong Kong investigation to the appellant, who was given a limited mandate to review the investigation file and make recommendations of an operational nature. The Board found that there was absolutely no evidence to suggest that Supt. Dubé “intended this particular investigation to die” (Appeal Book, Vol. I, p. 98). The Board found that Supt. Dubé was struggling with competing priorities, lack of resources and how to best deal with the Hong Kong investigation. It found that Supt. Dubé was not satisfied with the appellant’s work because of his view that the appellant had prematurely arrived at conclusions based on speculation and without having properly investigated the matter.

 

[60]           The Board then reviewed Sgt. Pasin’s investigation and the testimony that he had given before it, which it found to be credible, and concluded that Sgt. Pasin had conducted a lengthy and thorough investigation into the Hong Kong matter, which led him to conclude that there was no evidence of wrongdoing. The Board dismissed out of hand the appellant’s allegation that Sgt. Pasin’s investigation “was corrupt”.

 

[61]           After a careful review of the file, the Board concluded that the appellant did not have the skill or competence to conduct an investigation into the Hong Kong file. It was of the view that in conducting his investigation, the appellant had lost all sense of perspective and of impartiality. The Board went further in saying that the appellant had “displayed a clear lack of objectivity or even common sense” (p. 39 of the decision: Appeal Book, Vol. I, p. 98). As a result, the Board found that the appellant’s removal from the investigation was entirely justified and that his removal had allowed an experienced investigator, Sgt. Pasin, to conduct a thorough and unbiased investigation.

 

[62]           The Board held that the essence of the appellant’s allegations of criminal conduct on the part of Supt. Dubé and other RCMP officers was, in effect, that they had failed to accept his conclusions and recommendations, and to act on them. The Board again took the opportunity to emphasize that the appellant’s investigation was seriously flawed by reason of his lack of judgment and objectivity and that, in the circumstances, his superiors were totally justified in removing him from the investigation.

 

[63]           The Board then concluded that there was not a shred of evidence of cover-up, wrongdoing or illegal conduct that required public scrutiny and that, consequently, the appellant had failed to demonstrate the existence of circumstances which justified a breach of his oath of secrecy and of his duty of loyalty to his employer.

 

[64]           The Board further held that an RCMP Officer’s duty of loyalty and oath of secrecy under the Act constituted reasonable limits on the appellant’s freedom of expression.

 

[65]           Following these conclusions, the Board then proceeded to determine what the appropriate sanction was in the circumstances. Before it, the Appropriate Officer sought the dismissal of Cpl. Read. Only one witness testified before the Board, Supt. Campbell, who was the appellant’s superior. He testified that he had no confidence in the appellant “due to his serious lack of judgment”, that he could not be trusted and that, as a result, he would have great difficulty in finding a place for the appellant, fearing indiscretion or poor judgment.

 

[66]           After reviewing all mitigating and aggravating factors, the Board concluded in the following terms at page 56 of its decision (Appeal Book, Vol. I, p. 115):

Cpl. Read’s conduct and the character it reveals is such as to undermine and seriously impair the essential trust and confidence the RCMP is entitled to place in him and no sanction could re-establish it. The breach of trust represented by the misconduct in the present case goes to the heart of the relationship between the RCMP and Cpl. Read. It also goes to the heart of the public’s expectations of police officers in their handling of sensitive investigations.

 

 

[67]           As a result, the Board ordered Cpl. Read to resign from the Force, failing which he would be dismissed.

 

[68]           I now turn to the Review Committee’s decision, the essence of which appears at pages 4 and 5 of its Summary of Findings and Recommendations (Appeal Book, Vol. I, pp. 177-178), which I hereby reproduce:

Committee’s Findings: An RCMP member’s intentional violation of the oath of secrecy is, prima facie, disgraceful conduct that could bring discredit upon the Force and therefore something for which it is appropriate that the member be disciplined, unless the member acted to disclose a matter of legitimate public concern requiring a public debate. The fact that the Appellant honestly believed that the Force had engaged in serious wrongdoing is not a particularly relevant consideration. He had the onus of presenting evidence before the Board which would establish that there was a least a reasonable basis to his assertions. While there is no evidence of a cover-up on the part of the Force, there were important shortcomings in the investigative process followed by the Force since 1991, with the result that it remains possible that employees of the Mission were able to engage in immigration fraud on a widespread basis and that such activities have remained undetected to date. The record discloses a series of suspicious and disconcerting events that the Force failed to investigate in a timely and thorough manner. The RCMP oath of secrecy can undoubtedly be considered a reasonable limit to an RCMP member’s freedom of expression if it is enforced in a manner that is designed to protect legitimate interests but it cannot serve to prevent public scrutiny of wrongdoing on the part of the Force. The Force has consistently demonstrated a reluctance to investigate the activities of LES at the Mission. The 1999 investigation did not succeed in making up for the shortcomings in previous investigations. It constituted an exhaustive review of the interaction between CBOs and the Hong Kong residents and did reveal that the extent to which gifts, money and other benefits had traded hands was far more widespread than the Force had previously been led to believe by DFAIT and CIC. However, there are several important issues that had first surfaced during the initial investigation which Sgt. Pasin opted not to pursue or examine in only a cursory fashion, such as the activities of the LES. From the outset of his involvement with this investigation, Supt. Dubé made no secret of the fact that he did not believe that there was any merit to Mr. McAdam’s complaint and that continued to be the case as late as January 1999 when the investigation was revived. The result of the investigation was preordained. Supt. Dubé appeared unprepared to envisage an outcome that would be seen as vindicating Mr. McAdam. The close working relationship that the Immigration and Passport Section had with DFAIT and CIC appears to have influenced the approach taken towards this investigation. It considered DFAIT and CIC to be its clients, which was problematic because a thorough and timely investigation could have produced results that have been detrimental to DFAIT and CIC, especially if it were found that lax security procedures at the Mission had enabled corrupt employees to engage in immigration fraud on a widespread basis and over a prolonged period. At the time that the Appellant revealed his concerns to the media in August 1999, it was reasonable for him to believe that Supt. Dubé was endeavouring to initiate a Code of Conduct investigation against him. As well, the Appellant continued to be motivated by a desire to have the Force conduct a thorough investigation into activities at the Mission. Regardless, the disclosure would still have to be regarded as a matter of legitimate public concern because it exposed the fact that the Force had, for seven years, failed to take appropriate action to determine if employees of the Mission had engaged in immigration fraud.

 

[Emphasis added]

 

 

[69]           The Review Committee held, correctly in my view, that the fact that the appellant had an honest belief that the Force had engaged in wrongdoing was not, per se, a relevant factor. It then opined that it was incumbent upon the appellant to establish “… that there was at least a reasonable basis to his assertions”. Although the Review Committee recognized that there was no evidence of a cover-up on the part of the RCMP, there were, in its view, “important shortcomings” in the investigations which had been carried out since 1991. As a result, the Review Committee was of the view that the possibility existed that there might have been immigration fraud at the Hong Kong Mission which remained undetected.

 

[70]           In the Review Committee’s opinion, the RCMP’s oath of secrecy could undoubtedly be considered a reasonable limit on a member’s freedom of expression, if enforced in a manner designed to protect legitimate interests, “… but it cannot serve to prevent public scrutiny of wrongdoing on the part of the Force”. In its view, the RCMP’s failure to conduct a thorough investigation into the activities of the Hong Kong Mission and, hence, its failure to take appropriate action to determine whether employees at the Hong Kong Mission had engaged in immigration fraud, were circumstances which constituted justification for the appellant’s breach of his oath of secrecy and of his duty of loyalty to his employer.

 

[71]           Although I will be returning to the Review Committee’s decision during the course of my analysis of the appellant’s submissions as to why his appeal should be allowed, it is nonetheless important, at this stage, to set out a number of findings made by the Review Committee which, in my view, are crucial to the determination of this appeal.

 

[72]           In reviewing these findings of the Review Committee, it is important to point out that there is absolutely no evidence of illegal activities or corruption, either on the part of the RCMP or on the part of those employed at the Hong Kong Mission. This conclusion was reached both by the Board and by the Review Committee. It is obvious from the Review Committee’s decision that all that the appellant was able to demonstrate to its satisfaction was that there were shortcomings in the investigation conducted by the RCMP. After stating that the appellant had not succeeded in demonstrating that there had been any deliberate attempt on the part of Sgt. Conohan, Supt. Dubé and others to conceal evidence of wrongdoing and that, in effect, there was no “concrete evidence to that effect”, the Board simply stated that “what the record discloses is a series of suspicious and disconcerting events [in Hong Kong] the Force failed to investigate in a timely and thorough manner”.

 

[73]           Further on in its decision, the Review Committee makes it clear that Supt. Dubé’s decision to remove the appellant from the investigation in 1997 was not an attempt on his part to prevent the investigation from getting to the truth and that the appellant was entirely to blame for his removal, in that he had displayed a lack of objectivity and conducted himself as Mr. McAdam’s advocate, rather than as an independent and impartial investigator. His investigative reports, according to the Review Committee, were replete with comments which tended to show that he had prejudged the results of his investigation.

 

[74]           In commenting on one of the appellant’s reports, the Review Committee states that it “constituted another example of poor judgment displayed by the appellant which could very well have conveyed the impression that he was attempting to fabricate evidence, although I am certain that that is not what he set out to do” (Review Committee’s Report, p. 49 – Appeal Book, Vol. p. 168).

 

[75]           The Review Committee then touches on what I consider to be the crux of this case insofar as the appellant is concerned. At page 50 of its decision (Appeal Book, Vol. I, p. 169), the Review Committee points out that his removal from the investigation had been very upsetting to the appellant and that was what had led him to complain, inter alia, that Supt. Dubé was attempting to cover up evidence of criminal wrongdoing at the Hong Kong Mission.

 

[76]           Commenting on Mr. Balser’s findings, the Review Committee came to the view that the appellant had mistakenly presented that evidence as “constituting evidence of criminal wrongdoing”, when Mr. Balser’s evidence showed only that by reason of security vulnerabilities, opportunities had been open for employees at the Hong Kong Mission to engage in immigration fraud.

 

[77]           I now turn to Assistant Commissioner Killam’s decision.

 

[78]           Following a review of both the Board and the Review Committee’s decisions, the Assistant Commissioner addressed the issue of whether a member of the RCMP was subject to a higher standard of the duty of loyalty to his employer than would be expected of other public servants.

[79]           In dismissing the Review Committee’s opinion that members of the RCMP were subject to the same standard as public servants in terms of the application of the “whistle-blowing” defence and, ultimately, the duty of loyalty to one’s employer, Assistant Commissioner Killam wrote the following at page 15 of his decision (Appeal Book, Vol. I, p. 194):

I agree with the Board that, given the nature of the duties of RMCP officers, a higher standard should apply with respect to the duty of loyalty.  I adopt this position for several reasons.  First, RCMP officers are public-office holders, and they are asked to enforce laws at all levels: municipal, provincial and federal levels.  They exercise powers of arrest and detention that can take away the liberties of members of the public, they investigate sensitive matters, and they must exercise discretion in the performance of their duties and functions.  The public expects a higher standard from RCMP officers and relies on their discretion with respect to investigations and confidential information gathered. 

 

 

[80]           The Assistant Commissioner then considered the “whistle-blowing” defence and the exceptions permitting disclosure as enunciated in Fraser, supra, and Haydon No. 1, supra. Contrary to the Review Committee which found, relying on Haydon, No. 1, supra, that a public servant could breach his duty of loyalty when matters of legitimate public concern were at issue, the Assistant Commissioner opined that the exception of legitimate public concern was “overly broad” (see p. 16 of decision: Appeal Book, Vol. 1, p. 195). He explained his position, at page 16 of his decision, in the following terms:

Public interest is important, yes, but not to the extent that sensitive classified information such as criminal intelligence and details about witnesses, suspects and innocent parties is disclosed. The disclosure of such information threatens to compromise investigations, alert criminals, stigmatize innocent parties and when information from sources other than the RCMP is revealed, damage relationships with entities that a critical to an integrated and effective policing model. I agree with the Board that there must be a qualification on public interest when disclosures concern more than policy matters as in Haydon.

 

 

[81]           As a result, the Assistant Commissioner held that he did not believe that any of the exceptions identified in Fraser, supra, had been met. The Assistant Commissioner was satisfied that the concerns raised by the appellant were not matters of government illegality or matters impacting public health or safety.

 

[82]           The Assistant Commissioner then went on to consider whether there existed a reasonable basis justifying the appellant’s disclosures. In his view, the Board had been correct in finding that there existed no reasonable basis for the appellant’s allegations. In so concluding, the Assistant Commissioner agreed with the Board’s assessment of the evidence.

 

[83]           In concluding that the matters raised by the appellant did not fall within any of the Fraser, supra, exceptions, the Assistant Commissioner considered as relevant that the reviews conducted by Assistant Commissioner Cummins, as Ethics and Integrity Officer, and the Administrative File Review Panel both came to the conclusion that there was no substance to the appellant’s allegations.

 

[84]           The Assistant Commissioner then held that the RCMP was justified in removing the appellant from the investigation as he lacked the requisite objectivity. To support that finding, the Assistant Commissioner referred to, inter alia, the appellant’s collegial relationship with Mr. McAdam, who had complained about the problems at the Hong Kong Mission and who had been instrumental in securing a third investigation by the RCMP.

 

[85]           Furthermore, the Assistant Commissioner agreed with the Board that the appellant had acted out of personal interest. He noted that both the Board and the Review Committee had concluded that the appellant lacked the requisite impartiality and good judgment to carry out the investigation in question.

 

[86]           In addition, the Assistant Commissioner noted that it appeared that Mr. McAdam “had some influence on Cpl. Read’s perception of the investigation and the way it should be conducted.” (See p. 18 of the decision; Appeal Book, Vol. I, p. 197) He also considered as relevant the fact that the appellant admitted that he used the threat of going public with the allegations, to protect himself from what he perceived to be an unjust investigation by his superiors regarding a missing box of documents that he had purportedly returned to Mr. McAdam. This evidence led the Assistant Commissioner to conclude that the appellant had “acted to protect himself and to push his “cause”.” (See p. 19 of the decision; Appeal Book Vol. I,

p. 198).

 

[87]           The Assistant Commissioner then addressed the appellant’s submission that the Board had not properly considered the evidence of a cover-up by different government departments with respect to the investigation of the Hong Kong Mission. Once again, he relied on the Administrative File Review conducted by three independent officers who concluded that although there were some shortcomings in the investigation, there was no evidence substantiating the appellant’s allegations of corruption.

 

[88]           Finally, the Assistant Commissioner addressed the issue raised by the appellant with respect to some of the Board’s findings of fact.  He concluded that the Board did not err in its determination that Sgt. Pasin’s investigation was thorough. Moreover, he concluded that both the Board and the Review Committee were correct in their finding that the appellant had been properly removed from the investigation as a result of his lack of objectivity and impartiality.

 

[89]           The Assistant Commissioner was also of the view that the Board was correct in concluding that Supt. Dubé had not intended the investigation to die. In so concluding, the Assistant Commissioner pointed out that the Board’s findings were based on the evidence and testimonies that had been presented before it during the hearing (the hearing lasted 20 days, during which 16 witnesses were heard). The Assistant Commissioner noted that “the Board received and heard the evidence and was in the better position to weigh and draw inferences from that evidence. I concur with their finding that Supt. Dubé and Sgt. Pasin were credible witnesses” (see p. 22 of the decision; Appeal Book, Vol. I, p.201). Consequently, the Assistant Commissioner confirmed the Board’s decision.

 

[90]           He then considered Cpl. Read’s appeal against his sanction of resignation from the RCMP.  He was of the view that “the Board’s analysis of mitigating and aggravating factors was logical and well-reasoned” (See p. 23 of the decision; Appeal Book, Vol. I, p. 202). The Assistant Commissioner continued by stating at page 24 of the decision (Appeal Book, Vol. I, p. 203) that, in any event, no mitigating factor could, in the circumstances, suffice to reduce the sanction imposed by the Board:

Although Cpl. Read’s Counsel has argued that his client’s action represented a single mistake made in the context of a very difficult and unique file, I cannot agree. A continuous series of decisions throughout the investigation of the Hong Kong matter shows a disturbing flaw in Cpl. Read’s character – poor judgment. In that I concur with the Board and for the same reasons. His inability to remain objective in conducting his investigation contributed significantly to the misconduct. The External Review Committee has also commented on Cpl. Read’s lack of objectivity and the appearance of bias in his investigation. The Chair has stated that at times, Cpl. Read acted as if he were an advocate for Mr. McAdam, rather than an independent and impartial investigator.

 

 

[91]           As a result, the Assistant Commissioner confirmed both the Board’s findings and the sanction imposed. I now turn briefly to the decision under appeal.

 

DECISION OF THE APPLICATION JUDGE

[92]           At paragraph 70 of his Reasons, Harrington J. identified the allegation of government illegality as constituting the crux of the case before him and referred to Fraser, supra, where the Supreme Court of Canada determined that the “whistle-blowing” defence was available where, inter alia, government illegality was the subject of disclosure.

 

[93]           After a careful review of the evidence adduced by the appellant before the Board, Harrington J. concluded that there was a complete lack of evidence with respect to his allegations that his superiors at the RCMP and other public servants administrating immigration policies had attempted to cover up wrongdoing in relation to the Hong Kong investigation. In reaching that conclusion, the Judge relied on the RCMP Administrative File Review, as well as on the findings of both the Board and Assistant Commissioner Killam.

 

[94]           Harrington J. was satisfied that Supt. Dubé, who was found to be a credible witness by the Board, was merely performing his duties with respect to the investigation. It was clear, in the Judge’s view, that some of the problems with the investigation could be attributed to a lack of resources and, as a result, Supt. Dubé was simply attempting to weigh numerous priorities. The Judge was satisfied that Cpl. Read’s superiors at the RCMP had not covered up anything and, as a result, he concluded that the appellant’s defence of “whistle-blowing” had not been made out.

 

[95]           With respect to the sanction imposed upon the appellant, the learned Judge held that the Assistant Commissioner was entitled to deference and, as the decision could not be characterized as unreasonable, he saw no basis to intervene.

 

THE APPELLANT’S SUBMISSIONS

[96]           In seeking to set aside the decision below, the appellant raises a number of substantive arguments in support of his position that the Assistant Commissioner erred in upholding the Board’s decision.

 

[97]           The appellant submits that his duty of loyalty was overridden in this case by a duty to disclose, because many of the issues raised relate to the Fraser exceptions of health and safety or illegal activities permitting disclosure. In the alternative, the appellant submits that the issues he raised were matters of legitimate public concern requiring a public debate.

 

[98]           In support of these submissions, the appellant identifies, in broad terms, the allegations of corruption by government officials and the security risk posed by the potential infiltration of organized crime in Canada by reason of the wrongdoing at the Hong Kong Mission, as examples of disclosure falling under the health and safety and illegal activities exceptions enunciated in Fraser, supra.

 

[99]           The appellant submits that his allegations pertain to matters of public concern requiring a public debate. He argues that the public has a right to a transparent police force that is free of political interference. He argues that he had reasonable grounds for his allegations, because the RCMP was reluctant to pursue the investigation and, of particular importance, the RCMP had not undertaken a proper investigation due to political considerations. He submits that neither the Board nor the Assistant Commissioner adequately addressed this argument in their decisions.

 

[100]       In addition to his allegation that the RCMP had improperly handled the investigation into the Hong Kong matter, he submits that the fact that he was removed from the investigation and was not provided with requested information are indicators that he indeed had a reasonable basis for believing that these were matters of legitimate public concern.

 

 

[101]       The appellant submits that both the Board and the Assistant Commissioner erred in imposing a higher standard of the duty of loyalty on members of the RCMP. He argues that the imposition of a higher standard requires compelling evidence under section 1 and that no such evidence was adduced.

 

[102]       Moreover, he submits that the Assistant Commissioner adopted this reasoning without engaging in an analysis under section 1. He contends that RCMP officers do not have a higher standard of the duty of loyalty by virtue of their position and the nature of their work. Rather, he submits that RCMP officers have a higher duty to disclose suspected wrongdoing.

 

ANALYSIS

[103]       I begin with the standard of review applicable to the decision rendered by the Assistant Commissioner.

 

[104]       The learned Application Judge dealt with that issue at paragraph 59 of his Reasons. After referring to the Supreme Court of Canada’s decisions in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, and to Kelen J.’s decision in Stenhouse, supra, the Application Judge concluded as follows at paragraph 59:

[59]     However, as Kelen went on to say, on questions of law the Court has a greater expertise and will review the Commissioner’s decision according to the standard of correctness. On mixed questions of law and fact the Court will grant limited deference, i.e. the holding cannot stand if it is unreasonable.

 

 

[105]       Although the Application Judge referred to the relevant case law and was aware of the approach dictated by the Supreme Court in those cases with respect to a determination of the applicable standard of review, he does not appear to have come to a definite conclusion on this point. As I indicated at paragraph 95 of these Reasons, he applied the standard of reasonableness simpliciter with respect to the Assistant Commissioner’s decision pertaining to the sanction imposed upon the appellant. However, with respect to the issue of the appellant’s breach of his duty of loyalty and his defence of “whistle-blowing”, the Judge does not appear to have had any particular standard in mind in dealing with that issue. However, in my view, his failure to apply a particular standard of review does not lead to a reversible error.

 

[106]       For the reasons that follow, I conclude that whether the applicable standard is correctness or reasonableness simpliciter, the Judge made no reviewable error in dismissing the appellant’s judicial review application. I therefore need not conduct the analysis required under the pragmatic and functional approach.

 

[107]       I note in passing that the appellant supports the view expressed by the Judge on this point, arguing that the appropriate standards of review are correctness for questions of law, reasonableness for questions of mixed fact and law and patent unreasonableness for questions of fact.

 

[108]       Before addressing the appellant’s submissions, I need to consider one additional matter. In Haydon No 2, supra, Desjardins J.A., after noting that Fraser, supra, was a pre-Charter case, opined that it was still true to say, in view of section 1 of the Charter, that “freedom of expression” was not an absolute value and that it had to be balanced against other competing values, adding that in the case before her, freedom of expression had to be balanced “in light of the value of an impartial and effective public service” (para. 23 of her Reasons).

 

[109]       Later on in her Reasons, as I have already pointed out, Desjardins J.A. emphasized the fact that in Haydon, No. 1, supra, Tremblay-Lamer J. had conducted a detailed analysis under section 1 of the Charter and that she had concluded that the common law duty of loyalty, as enunciated in Fraser, supra, constituted a reasonable limit under section 1. I have carefully reviewed Tremblay-Lamer J.’s analysis and can see no basis whatsoever to disagree with her conclusion.

 

[110]       Thus, the issue before us is whether, in the circumstances of the case, the appellant was justified in breaching his duty of loyalty and his oath of secrecy. I therefore turn to the appellant’s submissions.

 

[111]       Let me begin by addressing the appellant’s argument that the duty of loyalty owed by RCMP officers to their employer is no greater than that of other public servants. The Application Judge did not deal with this issue, since he was of the view that by reason of his determination that the appellant had not adduced sufficient evidence in support of his allegations, there was no need for him to deal with it.

 

[112]       The appellant disagrees with the position taken by both the Assistant Commissioner and the Board to the effect that RCMP members are to be held to a greater degree of loyalty than that which is required of other public servants. In my view, the answer to the question is to be found in Fraser, supra, where, at page 466, Dickson C.J. writes:

In other words, a public servant is required to exercise a degree of restraint in his or her actions relating to criticism of government policy, in order to ensure that the public service is perceived as impartial and effective in fulfilling its duties. It is implicit throughout the Adjudicator's reasons that the degree of restraint which must be exercised is relative to the position and visibility of the civil servant.

 

In my opinion, the Adjudicator was correct in identifying the applicable principles and in applying them to the circumstances of the case. The act of balancing must start with the proposition that some speech by public servants concerning public issues is permitted. Public servants cannot be, to use Mr. Fraser's apt phrase, "silent members of society". I say this for three reasons.

 

[Emphasis added]

 

 

[113]       In other words, the extent of the restraint which public servants are subject to depends on the nature of their work and the public’s perception of their position within the public service.

 

[114]       The Assistant Commissioner concluded that RCMP officers should be subject to a higher duty of loyalty for a number of reasons, namely, that their mandate was to enforce municipal, provincial and federal laws, that they exercised powers of arrest and detention, that they were involved in investigations of a sensitive nature and that discretion was at the forefront of all of their activities.

 

[115]       Hence, in the Assistant Commissioner’s view, the public expected a high standard of the duty of loyalty from RCMP officers and relied on their discretion in regard to the investigations which they carried out and in regard to the confidential information which they were privy to.

 

[116]       I am not prepared to say, as the Assistant Commissioner and the Board do, that RCMP members must be held to a standard higher than other public servants. However, I agree entirely with the Assistant Commissioner and for the reasons that he gives, that RCMP officers must necessarily be held to a very high standard of the duty of loyalty. Whether or not that standard is higher than that imposed on other public servants will, in my view, depend on the circumstances of the case in addition to, as Dickson C.J. held in Fraser, supra, “the position and visibility of the civil servant”.

 

[117]       I now turn to the appellant’s submission regarding the broadening of the exceptions to the duty of loyalty formulated by Dickson C.J. in Fraser, supra. More particularly, the appellant argues that in Haydon, No. 2, supra, Tremblay-Lamer J. formulated a further exception to a public servant’s duty of loyalty to his employer, namely, that of “legitimate public concern”.

 

[118]       I have no hesitation in concluding, as the Application Judge and MacKay J. did in Chopra, supra, that Tremblay-Lamer J., in Haydon No. 1, supra, did not intend to create or recognize a further exception to those formulated by Dickson C.J. in Fraser, supra. I cannot do better than refer to paragraph 46 of these Reasons, where I cite paragraph 27 of MacKay J.’s Reasons in Chopra, supra, wherein the learned Judge explains why, in his view, no further exception was created in Haydon, No. 1, supra.

 

[119]       I am also satisfied that such an exception to the duty of loyalty of RCMP officers is not warranted. It is important to remind ourselves that the purpose of the exceptions formulated in Fraser, supra, is not to encourage or allow public servants to debate issues as if they were ordinary members of the public, unencumbered by responsibilities to their employer. Rather, the purpose of the exceptions, as I understand them, is to allow public servants to expose, in exceptional circumstances, government wrongdoing. It appears to me that the exceptions are sufficiently broad to allow public servants to speak out when circumstances arise where disclosure must take precedence over the duty of loyalty.

 

[120]       The exceptions formulated in Fraser, supra, i.e. where the government is engaged in illegal activity or where its policies jeopardize the life, health or safety of the public or members of the public, are no doubt matters of legitimate public concern. It is clear, however, from the words used by Dickson C.J. in Fraser, supra, that he did not intend to create an exception so as to allow public servants to voice all of their concerns or disagreements with government policies and departmental activities. I have no doubt that had that been his intention, the exceptions would have been articulated in a very different manner. Thus, I am in agreement with Harrington J. when he says, at paragraph 109 of his Reasons, that “[h]owever, I do not find that legitimate public interest at large is an exception to the duty of loyalty owed by an employee to his or her employer”.

 

[121]       I also agree with Harrington J. that save for those instances where public disclosure is justified by reason of the Fraser, supra, exceptions, the decision to publicly disclose disputes or disagreements within the RCMP as to the effectiveness or thoroughness of investigations conducted by the Force must necessarily be the responsibility of those in position of authority within the Force.

 

[122]       I now turn to the appellant’s submissions that his allegations pertain to issues which fall within the Fraser, supra, exceptions. More particularly, the appellant argues that he raised issues concerning corruption by government officials, the potential entry of organized crime members into Canada, the RCMP’s failure or unwillingness to pursue a thorough investigation into the activities at the Hong Kong Mission, the obstruction by senior RCMP officers of his attempts to conduct a proper investigation and the RCMP’s failure to address his numerous complaints.

 

[123]       I begin with the appellant’s allegation that Supt. Dubé and other RCMP officers engaged in a cover-up operation. Both the Board and the Assistant Commissioner concluded, without hesitation, that there was no evidence whatsoever to support that allegation. In the Board’s view, that allegation stemmed in great part from the fact that Supt. Dubé and other RCMP officers had not been willing to agree with the appellant’s conclusions and recommendations. As to the Review Committee, it was also of the view that there had been no cover-up on the part of the RCMP.

 

[124]       Both the Board and the Review Committee were of the view that the decision to remove the appellant from the investigation was, in the circumstances, a proper decision, considering that he had demonstrated a lack of objectivity and impartiality in conducting his investigation. The Review Committee went further and opined that the appellant had shown poor judgment throughout his investigation.

 

[125]       It is also clear from the Review Committee’s decision that it was of the view that it was the appellant’s removal from the investigation which led him to make accusations against Supt. Dubé and other RCMP officers. In fact, when one examines the evidence in its totality, it was from that point on that the appellant became distrustful and suspicious of anyone who did not share his view of the matter.

 

[126]       Consequently, there can be no doubt whatsoever that the accusations made by the appellant regarding corruption on the part of the RCMP and on the part of those in charge at the Hong Kong Mission are totally groundless. They are the product of a mind which refused to consider that an objective analysis of the evidence did not necessarily lead to the conclusion that criminal activities had taken place at the Hong Kong Mission and that charges should be brought without further delay.

 

[127]       Although it agreed that there was no evidence to support the appellant’s allegation that the RCMP had attempted to cover up the existence of illegal activities at the Hong Kong Mission, the Review Committee was nonetheless of the view that by reason of important shortcomings in the RCMP’s investigations, the appellant was justified in going public and revealing classified information and documents to the media and to Mr. McAdam. To place this finding in context, I will briefly review both the Board’s and the Review Committee’s approach regarding the shortcomings found in the RCMP investigations.

 

[128]       The Board concluded that the first investigation at the Hong Kong Mission led by Sgt. Conohan “was lacking.” (see Appeal Book, Vol. I, p. 97) However, the Board went on to state that it was not attempting to pose blame with respect to the problems that arose in the investigation, but rather, that it was merely seeking to point out that the investigation “did not clarify all issues” (see Appeal Book, Vol. I, p. 97).

 

[129]       Moreover, the Board accepted the evidence presented to the effect that Sgt. Conohan “was put in a difficult position at the time; his stay was extended and the number of issues to investigate increased while he was in Hong Kong and priorities changed” (see Appeal Book, Vol. I, p. 97).

 

[130]       Further, the Board accepted the appellant’s submission that there had been “some reluctance by the RCMP to pursue the investigation” (see Appeal Book, Vol. I, p. 97). The Board identified five factors that it considered pertinent in concluding that the RCMP had been reluctant to pursue the investigations at the Hong Kong Mission.  Firstly, the Board indicated that some considered the problems at the Hong Kong Mission to be a “purely internal matter” (see Appeal Book, Vol. I, p. 97). Secondly, the RCMP’s reluctance to investigate could be attributed to the fact that it was viewed more as an administrative, rather than a criminal, matter.  Thirdly, the problems could be construed more as ethical concerns than criminal ones.  Fourthly, the Board considered relevant the jurisdictional issues that arose, namely that some of the conduct investigated was within the jurisdiction of the local police and not that of the RCMP.  This, the Board went on to say, raised concerns with respect to “the interest or mandate of the RCMP to investigate” (see Appeal Book, Vol. I, p. 97). Lastly, the Board accepted that the cutbacks and restructuring that occurred during the time of the investigations at the Hong Kong Mission impacted the RCMP’s ability to pursue its investigations.  “Thus the evidence is clear the Hong Kong investigation competed with other investigations for resources…” (see Appeal Book, Vol. I, p. 97).

 

[131]       Although the Review Committee accepted that the appellant’s allegations of corruption were unfounded, it was nonetheless prepared to grant the appellant’s appeal on the basis that there were “important shortcomings in the investigative process followed by the Force since 1991” and that, as a result, “it remains possible that employees of the Mission were able to engage in immigration fraud…” (see Appeal Book, Vol. I, p. 177).

 

[132]       The Review Committee concluded that the third investigation in 1999 “did not succeed in making up for the shortcomings in previous investigations” (see Appeal Book, Vol. I, p. 177). It determined that the result of the final investigation “was preordained” (see Appeal Book, Vol. I, p. 177). Therefore, the Review Committee appears to have weighed the evidence differently than the Board did, which led it to conclude that the five factors noted by the Board could not justify the RCMP’s failings with respect to the Hong Kong investigations. For these reasons, the Review Committee concluded that the appellant’s disclosure was justified because it revealed the RCMP’s failure “to take appropriate action to determine if employees of the Mission had engaged in immigration fraud” (see Appeal Book, Vol. I, p. 178). Hence, the appellant’s disclosures concerning the shortcomings in the RCMP’s investigations, according to the Review Committee, gave rise to a matter of legitimate public concern.

 

[133]       The Assistant Commissioner agreed with the Board’s point of view. After noting that the panel which conducted the administrative file review had found shortcomings in the RCMP’s investigations and that the appellant’s concerns in regard thereto had some merit, he concluded that “the bottom line was that there was no evidence to support his allegations of corruption” (see Appeal Book, Vol. I, p. 175).

 

[134]       I come to the conclusion that the appellant cannot succeed on his appeal.

 

[135]       Firstly, there is nothing in the record to support the appellant’s allegations that members of the RCMP or those in charge at the Hong Kong Mission were corrupt. Consequently, the appellant has not established that there was justification for the breach of his oath of loyalty. None of the Fraser, supra, exceptions have been met.

 

[136]       Secondly, it is undeniable that the appellant’s superiors at the RCMP did not attempt to obstruct his investigation. To the contrary, there is consensus that he was properly removed from the investigation because he lacked the required objectivity, impartiality and indeed, common sense, to pursue that investigation.

 

[137]       All that can be said in the appellant’s favour is that he was able to point out that the investigations carried out by the RCMP since 1991 could have been more thorough and more effective. The Board and the Review Committee came to different views as to the reason for these

 

shortcomings and their impact on the investigations. Since I am satisfied that these shortcomings,

in the circumstances of this case, do not constitute government illegality and that they do not fall within the Fraser, supra, exceptions, I need not make a determination as to the correctness of these competing views.

 

[138]       The Review Committee held that these shortcomings in the investigations justified the appellant’s breach of his duty of loyalty on the ground that a matter of legitimate public concern had been raised. As I indicated earlier, there is no exception of legitimate public concern and, in my view, such an exception, insofar as RCMP officers are concerned, is clearly not warranted.

 

[139]       Considering the evidence adduced before the Board, there cannot be much doubt, in my view, that in disclosing confidential information and documents to the media and to Mr. McAdam, the appellant acted in an irresponsible manner and clearly breached his duty of loyalty to his employer. Notwithstanding the fact that there were shortcomings in the RCMP’s investigations, the appellant’s public criticism of his employer cannot, in the circumstances of this case, be justified.

 

[140]       Since there is no proof whatsoever to support his allegations of corruption, I need not decide what burden of proof the appellant was required to meet in regard to his allegations. The Judge came to a similar conclusion when he said at paragraph 102 of his Reasons that “since Corporal Read did not even come close to proving his allegations on a balance of probabilities, it is not necessary to settle upon a clear demarcation line”.

 

[141]       The appellant has made no submissions regarding “impairment”, i.e. whether his criticism of his employer impaired his ability to effectively perform his duties. The Judge, at paragraph 121 of his Reasons, concluded that there was no question that the appellant’s remarks had impaired his ability to carry out his duties as a member of the Force and that his remarks “had the potential of adversely affecting his employer”. I see no reason to disagree with that finding.

 

[142]       Finally, I also see no basis to disagree with the Judge with respect to the sanction imposed upon the appellant by his employer. The Judge held that the Assistant Commissioner had given clear reasons in support of his decision and that he could not find that these reasons were unreasonable. At paragraph 90 of these Reasons, I reproduced the Assistant Commissioner’s reasons for concluding that there were no grounds to reduce the sanction imposed by the Board. In my view, the Judge was correct in finding that the Assistant Commissioner’s decision was not unreasonable and, as a result, I concur with his view of the matter.

 

[143]       Thus, the appellant has failed to persuade me that the Judge made a reviewable error in dismissing his judicial review application and I would therefore dismiss his appeal with costs.

 

“M. Nadon”

“I agree.

            Marc Noël”

 

“I agree.

            John M. Evans”

 

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                                                              A-314-05

 

(APPEAL FROM AN ORDER OF THE FEDERAL COURT, 2005 FC 798, DATED JUNE 2, 2005)

 

STYLE OF CAUSE:                                                              READ v. A.G.C.

 

PLACE OF HEARING:                                                        Ottawa, Ontario

 

DATE OF HEARING:                                                          May 3, 2006

 

REASONS FOR JUDGMENT BY:                                     NADON J.A.

 

CONCURRED IN BY:                                                         NOËL, J.A.

                                                                                                EVANS J.A.

 

DATED:                                                                                 August 22, 2006

 

 

APPEARANCES:

 

Mr. D. Yazbeck Mr. P. Champ	FOR THE APPELLANT
Mr. P. Bendin Mr. M. Roach	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. Ottawa, ON	FOR THE APPELLANT
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, ON	FOR THE RESPONDENT