Date: 20041217
Docket: T-605-04
Citation: 2004 FC 1709
BETWEEN:
SGT. LOUIS LADOUCEUR
Plaintiff
- and -
APPROPRIATE OFFICER
PIERRE-YVES BOURDUAS
Defendant
REASONS FOR ORDER
PINARD J.
[1] This is an application pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, following a decision by the adjudication board (the board) of the Royal Canadian Mounted Police on February 23, 2004, by which the board dismissed the motion to stay proceedings filed by the plaintiff and ordered that the hearing go forward on May 17, 2004.
[2] The plaintiff sought to have the decision in question set aside and asked for a stay of the proceedings against him before the adjudication board.
[3] On December 11, 2002 a notice was served on Sgt. Louis Ladouceur (the plaintiff), charging him with having committed two breaches of the Code of Conduct. The hearing of this complaint was initially set down for the week of August 25 to 29, 2003. The hearing took place before the board, represented by Supt. Robert Codère, Supt. D. Nugent and Insp. W. Lang. On August 27, 2003, at the examination of Staff Sgt. Jean-Pierre Boucher, it appeared that facts relating to prosecution of the complaint had not been given to the plaintiff before the hearing. The hearing of the case was accordingly suspended until August 29.
[4] On October 3, 2003 the plaintiff served his motion to stay proceedings, objecting essentially that the proceeding was distorted and defective. In particular, he maintained that the defendant had failed in his obligation to release to him all the facts relating to the prosecution before the defence and before the hearing by the board. On October 17, 2003 the defendant served his opposition to the motion.
[5] The hearing of the motion to stay proceedings before the board took place on December 15 and 18, 2003. At that hearing the defendant admitted that certain information had not been released to the plaintiff, and the board acknowledged that there were missing notes.
[6] On February 23, 2004 the board rendered a decision in which it dismissed the plaintiff's motion and ordered that the hearing go forward on May 17, 2004: hence the application for judicial review at bar.
[7] Pursuant to the latter, and pending a decision, the plaintiff asked this Court to stay the proceeding before the board. This application to stay was first dismissed for a procedural defect by Beaudry J. on April 7, 2004, and later dismissed on the merits by Rouleau J. on May 14, 2004. The plaintiff appealed the judgment of Rouleau J., and this appeal was dismissed by the Federal Court of Appeal on the grounds that the plaintiff had not shown irreparable harm and the balance of convenience was not in his favour.
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[8] The relevant provisions of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the Act) are the following:
| 40. (1) Where it appears to an officer or to a member in command of a detachment that a member under the command of the officer or member has contravened the Code of Conduct, the officer or member shall make or cause to be made such investigation as the officer or member considers necessary to enable the officer or member to determine whether that member has contravened or is contravening the Code of Conduct. |
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40. (1) Lorsqu'il apparaît à un officier ou à un membre commandant un détachement qu'un membre sous ses ordres a contrevenu au code de déontologie, il tient ou fait tenir l'enquête qu'il estime nécessaire pour lui permettre d'établir s'il y a réellement contravention. |
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| 45.12 (1) After considering the evidence submitted at the hearing, the adjudication board shall decide whether or not each allegation of contravention of the Code of Conduct contained in the notice of the hearing is established on a balance of probabilities. |
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45.12 (1) Le comité d'arbitrage décide si les éléments de preuve produits à l'audience établissent selon la prépondérance des probabilités chacune des contraventions alléguées au code de déontologie énoncées dans l'avis d'audience. |
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| 45.14 (1) Subject to this section, a party to a hearing before an adjudication board may appeal the decision of the board to the Commissioner in respect of (a) any finding by the board that an allegation of contravention of the Code of Conduct by the member is established or not established; or (b) any sanction imposed or action taken by the board in consequence of a finding by the board that an allegation referred to in paragraph (a) is established. |
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45.14 (1) Sous réserve des autres dispositions du présent article, toute partie à une audience tenue devant un comité d'arbitrage peut en appeler de la décision de ce dernier devant le commissaire : a) soit en ce qui concerne la conclusion selon laquelle est établie ou non, selon le cas, une contravention alléguée au code de déontologie; b) soit en ce qui concerne toute peine ou mesure imposée par le comité après avoir conclu que l'allégation visée à l'alinéa a) est établie. |
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| 45.16 (7) A decision of the Commissioner on an appeal under section 45.14 is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal to or review by any court. |
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45.16 (7) La décision du commissaire portant sur un appel interjeté en vertu de l'article 45.14 est définitive et exécutoire et, sous réserve du contrôle judiciaire prévu par la Loi sur les Cours fédérales, n'est pas susceptible d'appel ou de révision en justice. |
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[9] The motion to stay proceedings filed by the plaintiff before the board was based on facts relating to procedure, in particular the fact that part of the notes taken by one of the witnesses in the case, Staff Sgt. Jean-Pierre Boucher, has not been disclosed to him prior to the disciplinary hearing before the board. The latter concluded that the plaintiff's right to liberty and security had not been infringed, since the notes were placed at his disposal before the conclusion of the inquiry and he had an opportunity to question Staff Sgt. Boucher on them. The board also found that the notes in question, which were not filed in connection with the application for judicial review at bar, did not relate to crucial matters but to secondary matters concerning allegations made against the plaintiff. The board accordingly ordered that the inquiry go forward. This was a purely interlocutory decision.
[10] On the question of judicial review of an interlocutory decision, Létourneau J.A. of the Federal Court of Appeal said the following in Szczecka v. Canada (M.E.I.) (1993), 170 N.R. 58, at 60:
That is why unless there are special circumstances there should not be any appeal or immediate judicial review of an interlocutory judgment. Similarly, there will not be any basis for judicial review, especially immediate review, when at the end of the proceedings some other appropriate remedy exists. There rules have been applied in several court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses which interfere with the sound administration of justice and ultimately bring it into disrepute.
[11] These rules were reaffirmed by the Federal Court of Appeal in Zündel v. Citron et al. (2000), 256 N.R. 125, in which Sexton J. cited this very passage from Szczecka, supra, at page 130.
[12] In the case at bar, when asked to specify the particular nature of the circumstances, counsel for the plaintiff referred again to the procedural breaches relating to the disciplinary hearing before the board, and the consequences thereof for her client's rights and freedoms. She also relied on the importance of avoiding a lengthy hearing before the board, noting that six to ten days would still be needed to complete the hearing before it. Finally, counsel noted the stigma caused by the inquiry to a police officer such as the plaintiff.
[13] In my opinion, these are not the "special circumstances" mentioned in the case law, and in particular in Szczecka, supra, which could justify this Court exercising its power of judicial review of an interlocutory decision of an administrative tribunal. Zündel, supra, speaks at page 129 of a lack of jurisdiction in the administrative tribunal which exceptionally justified exercise of such judicial review. That is not the case here.
[14] It was admitted in this Court that apart from the continuation of the inquiry before the board, where the prosecution has now completed its evidence, the relevant facts are the same as those which applied at the time of the hearing in the Federal Court of Appeal, in the case at bar, of the plaintiff's appeal from this Court's refusal to order a provisional stay of the proceedings before the board. Based on the same facts, and taking into account the remedies available to the plaintiff under subsections 45.14(1) and 45.16(7) of the Act, namely an appeal from the board's decision to the Commissioner and an application for judicial review in this Court of the Commissioner's decision respectively, I come to the conclusion that not only has the plaintiff failed to establish that he would suffer irreparable harm as a result of continuation of his disciplinary hearing before the Board, but in addition that the sound administration of justice requires that this hearing be concluded.
[15] Consequently, the application for judicial review is dismissed with costs.
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YVON PINARD
JUDGE |
OTTAWA, ONTARIO
December 17, 2004
Certified true translation
K.A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-605-04
STYLE OF CAUSE: SGT. LOUIS LADOUCEUR v. APPROPRIATE OFFICER PIERRE-YVES BOURDUAS
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 22, 2004
REASONS FOR ORDER BY: Pinard J.
DATED: December 17, 2004
APPEARANCES:
Jacinthe Ladouceur FOR THE PLAINTIFF
Jean Lavigne FOR THE DEFENDANT
SOLICITORS OF RECORD:
Les Avocats Ladouceur FOR THE PLAINTIFF
St-Eustache, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec