Administrative Law in Context

ADMINISTRATIVE LAW IN CONTEXT

CHAPTER 3

Dogs and Tails: Remedies in Administrative Law

Cristie L. Ford

Edited Case 3

McDonald v. Anishinabek Police Service et al.

[Indexed as: McDonald v. Anishinabek Police Service]

McDonald v. Anishinabek Police Service et al.

[Indexed as: McDonald v. Anishinabek Police Service]

(2006), 53 C.C.E.L. (3d) 126

Ontario Superior Court of Justice, Divisional Court,

October 13, 2006

Lane, Greer and Lax JJ.

[1] BY THE COURT: -- The applicant, Allan McDonald, was a First Nations Constable with the Anishinabek Police Service ("APS"). During a training course at the Ontario Police College, a number of complaints of sexual misconduct were made against him. On November 29, 2001, he was expelled from the training program and simultaneously, the Chief of Police of the APS terminated his employment. He brings this application for judicial review alleging that the Police Chief was without statutory authority to discharge him and that there was a lack of procedural fairness and a denial of natural justice. He seeks reinstatement and payment of his wages from the date of his termination.

Factual Background

[2] The applicant accepted an offer of probationary employment with the APS commencing July 3, 2001 as a First Nations Constable with the rank of police cadet and was appointed as a First Nations Constable for the Province of Ontario pursuant to s. 54 of the Police Services Act, R.S.O. 1990, c. P.15 by the Commissioner of the Ontario Provincial Police.

[3] Commencing September 12, 2001, he was enrolled in a course at the Ontario Police College where he was part of a class of 38 cadets from various police services. His continued employment was conditional on successful completion of the course.

[4] On the morning of November 28, 2001, the College first learned of complaints regarding the applicant's alleged sexual misconduct and the Protocol Officer of the College conducted an investigation. Based on his investigation, he concluded that there were six complainants, all female, and 12 witnesses in relation to 13 instances. On November 29, 2001, the College contacted Police Chief Glen Bannon of the APS and advised him of the nature of the complaints and that the applicant would be interviewed later that day.

[5] During the lunch hour on November 29, 2001, the primary complainant reported a new allegation. According to the applicant, he was taken from class to a room and "cross-examined" by a staff officer of the College for about 20 minutes with another officer present who was a member of the APS attending a firearms course at the College. According to the respondent, he was advised of the nature of the complaints, given several specifics and asked to respond to each one. The applicant admitted being present at the time of the events, but denied the allegations of misconduct. After the meeting concluded, the applicant was told to go to his room and to remain there.

[6] The College then contacted Chief Bannon as it wanted immediate instructions from him as to what course of action should be taken. It made clear to him that the College wanted the applicant off its grounds that day. As it happened, Chief Bannon was in negotiations with the applicant's union, the Canadian First Nations Police Association ("CFNPA"). He conferred with two union negotiators regarding the complaints. He concluded, without speaking to the applicant, that the complaints of sexual misconduct had been adequately investigated, that the applicant had been provided with a sufficient opportunity to respond, that his denials were not credible and that the appropriate response was immediate discharge. He prepared a letter the same day terminating the applicant's employment "for cause arising from the events of sexual harassment which occurred at the Ontario Police College".

[The Court reviews the procedural history of this matter, including a compliant filed to the Canada Industrial Relations Board. The Board dismissed the applicant’s complaint on the basis that it did not have jurisdiction to hear it. Omitted here is the Court’s discussion of proceedings before the Board, including the question of whether or not the applicant’s union, the CFNPA, should have been directed to grieve his discharge. Also omitted here is the Court’s discussion of the Board’s jurisdiction.]

The Statutory and Contractual Framework

[21] There are four sources of "law" available, each of which must be considered in the analysis. The Canada Labour Code, the Code of Conduct, the Tripartite Agreement and the Police Services Act all affect the issue of the proper handling of the dismissal of a First Nations Constable. How do we approach this complex of laws? While the four sources are not all statutes, two of them are and the other two are ultimately derived from the statutory powers of governments: Canada's over Indians and federal labour relations; and Ontario's over police. It seems appropriate to begin the analysis from a statutory perspective.

[22] The modern rule of statutory interpretation was formulated by Elmer Driedger and was accepted as the preferred approach by the Supreme Court in Rizzo. In Big Canoe, the Court of Appeal discussed the rule:

Finally, the modern interpretation method was reformulated in Canada by Professor R. Sullivan: Driedger on the Construction of Statutes:

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy in its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.

[23] This method requires us to consider and reconcile the provisions of the four sources. The overall scheme derives from the Tripartite Agreement, which expresses the political will of the parties -- Canada, Ontario and various First Nations -- to create autonomous First Nations Police Services to conduct policing on First Nations Lands. The Agreement recognizes that the constitutional jurisdictions of Canada and Ontario must be respected, as must the particular status of the First Nations and the expressed desire of all parties to ensure effective and culturally sensitive policing on the lands of the participating First Nations.

The Tripartite Agreement

[24] The Anishinabek Police Service is an autonomous, independent Aboriginal police service with its own Police Governing Authority. It was created by the Anishinabek Police Service Agreement, 1992, and continued by the Anishinabek Police Service Agreement 1999-2004, (“Tripartite Agreement”) which is a tripartite agreement among the federal government, the provincial government and a number of First Nations as represented by their Chiefs and Councils. Its purpose is to recruit Aboriginal persons to provide policing services to the member First Nations. The agreement in its present form was signed on or about December 1999.

[25] The Anishinabek Police Governing Authority is incorporated under Ontario legislation as a non-profit corporation composed of a representative from each member nation. It selects a Police Chief and recruits and hires Aboriginal men and women in various ranks and job descriptions to provide policing services. When hired by the Police Governing Authority, they are empowered as constables to enforce by-laws enacted pursuant to provisions of the Indian Act, R.S.C. 1985, c. I-5. Their broader powers as police officers derive from their appointment as First Nations Constables pursuant to s. 54 of the Police Services Act, which is discussed below.

[26] Certain portions of the 1999-2004 Agreement are of particular interest in the present analysis:

Article 2.1: Anishinabek Police Officer means a sworn member of the Anishinabek Police Service who exercises the powers of a police officer in and for the Province of Ontario and who is appointed as a First Nation Constable pursuant to section 54 of the Police Services Act;

. . . . .

Article 7.1: The Police Governing Authority is hereby continued and shall continue to act as the employer of the members of the APS.

. . . . .

Article 7.4: It shall be the responsibility of the Police Governing Authority to:

. . . . .

(c)   recruit and hire officers and civilian staff;

. . . . .

(h)   maintain an APS Code of Conduct to deal with discipline matters for officers . . .

. . . . .

Article 12.1: APS Police Officers shall be selected and hired by the Police Governing Authority and empowered as constables to enforce by-laws enacted pursuant to the provisions of the Indian Act . . . and appointed pursuant to Section 54 of the Police Services Act . . .

. . . . .

Article 29.6: Nothing in this Agreement shall be construed so as to preclude the OPP from discharging duties under the Police Services Act or under applicable statutory or common law.

[27] The scheme of this Agreement is to mesh the Indian Act responsibilities of Canada with the police responsibilities of Ontario so as to create an autonomous Aboriginal police force to police the reserves with cultural sensitivity, but with a limited degree of traditional police involvement at the key points of entry into and exit from the police service. Article 12.1 illustrates the dichotomous position of the First Nations Constable: chosen and employed by the APS, but given the powers of a police officer only after the OPP Commissioner is satisfied to make the appointment under s. 54 discussed below. Similarly upon exit from the APS, the involvement of the Commissioner, the need for consultation with the Police Governing Authority, the requirement of giving the First Nations Constable reasonable information as to the reasons for termination and an opportunity to reply, all provide a circumstantial guarantee of fairness to the First Nations Constable and professionalism in the Service. [ … ]

The Code of Conduct

[28] It is the responsibility of the Police Governing Authority under Article 7.4(h) of the Agreement to maintain an internal Code of Conduct. At the time of the applicant's discharge, a Code of Conduct, dated June 1995, was in effect.

[29] The Code of Conduct establishes a set of rules and guidelines by which it is expected that the police officers of the APS will conduct themselves. It distinguishes between minor defaults and major defaults. It sets out separate procedures for the administration of discipline for minor defaults and major defaults. The Chief of Police or his delegate has the discretion to determine whether a default is major or minor. Termination of employment is only available for major defaults. [ … ]

[31] With respect to major defaults, the Chief of Police or a person designated by the Police Chief, is required to cause an investigation to be undertaken with respect to the allegation of misconduct. The investigation can be undertaken by a police officer from the APS or another police service of the same or higher rank. The investigating report is provided to the Chief of Police. If the Chief of Police or his delegate considers that disciplinary action is warranted, a disciplinary hearing is held by the Discipline Committee of the APS Police Governing Authority. After hearing evidence, the Discipline Committee determines if the evidence substantiates the allegations. In that event, it may impose sanctions, including dismissal. There is a limited right of appeal to the Board of Directors of the Police Governing Authority, whose decision is final. [ … ]

Canada Labour Code

[The Court rejects the respondent’s submission that it did not have to comply with the APS Code of Conduct with respect to the applicant’s disciplinary proceedings and termination, because that Code was superseded by grievance procedures under the Canada Labour Code. The Court holds that disciplinary dismissals needed to be conducted in compliance with the Code of Conduct, and that a grievance under the Labour Code could only be brought at the conclusion of such a hearing process.]

[36] [ … ] Given the dual nature of the APS, which is both an employer under the federal labour regime and the operator of a professional police force, the two systems must live together. We therefore reject the respondent's submission that the Canada Labour Code has supplanted the APS Code of Conduct.

[37] It is evident that in the present case the Code of Conduct procedures were not followed. However, the Code of Conduct is not a statute and in terminating the applicant's employment without a hearing, the Chief of Police was not exercising a "statutory power" or a "statutory power of decision". His authority to discipline the applicant is a creature of contract, rather than statute. It is conferred on him by the Code of Conduct and delegated to him by the Police Governing Authority, which is responsible under Article 7.4(h) of the Tripartite Agreement for maintaining the Code of Conduct to deal with discipline matters for police officers.

[38] It was submitted, therefore, by the respondents, that this court has no jurisdiction to judicially review a decision made under the Code of Conduct because no statutory power of decision is involved. [ … ] Later in these reasons we will deal with the basis of our jurisdiction.