CANADA ) IN THE MATTER OF THE ROYAL CANADIAN ) MOUNTED POLICE ACT, R.S.C. 1985, ) CHAPTER R-10, AS AMENDED BY , ) ELIZABETH II CHAPTER 11

Transcription

1 CANADA ) IN THE MATTER OF THE ROYAL CANADIAN ) MOUNTED POLICE ACT, R.S.C., ) CHAPTER R-0, AS AMENDED BY --, ) ELIZABETH II CHAPTER BETWEEN: THE APPROPRIATE OFFICER OF F DIVISION and CONSTABLE K.R. GREGSON REGIMENTAL NO. VOLUME Held at the Federal Court of Canada, 0 Sparks Street, Ottawa,Ontario on Monday, November, 00 at : 0 a.m. BEFORE: Superintendent John Reid Superintendent Tony Pickett Chief Superintendent Barb Fleury Chairperson Member Member APPEARANCES Corporal Jonathon Hart Mr. Larry McGonigal & Constable James Rowland for the Appropriate Officer for the Member A.S.A.P. Reporting Services Inc. (00) 00 Elgin Street, Suite 0 0 King Street West, Ste 00 Ottawa, Ontario KP L Toronto, Ontario MX E

2 (ii) INDEX PAGE AFFIRMED: ANDREENA BRANT (Court Reporter) Opening Motions Decision on Motions Charter Argument AFFIRMED: DARRELL LESLEY McFADYEN Examination-in-chief by Corporal Hart Cross-examination by Mr. McGonigal 0

3 (iii) LIST OF EXHIBITS NO. DESCRIPTION PAGE A0-: Commissioner Standing Order No dated May, 00. AO-: Notice of Designated Officer to initiate hearing pursuant to part of the RCMP Act, dated November, 00, signed by Deputy Commissioner Rod Knecht. AO-: Can Say of Inspector Lowther, Inspector Scharf and Corporal Ball. AO-: AO-: AO-: AO-: AO-: AO-0: AO-: MO-: Notice of Suspension of Constable Kevin Reid Gregson dated September, 00. Certificate of Service dated September, 00 by Staff Sergeant T. W. Brothen. 00 from Darrell McFadyen to Brenda Lucky and Terry Brothen, September 0, from Darrell McFadyen to Kevin Gregson dated September 0, Notice of Suspension signed by Darrell McFadyen dated September, from Kevin Gregson to Darrell McFadyen dated Tuesday, September, from Darrell McFadyen to Brenda Lucky and Terry Brothen dated September, Article from the Sault Star, Ontario, January, 00. Police assault claim was bogus. MO-: Letter from David J. Bishop to the Commanding Officer F Division dated October 0, 00.

4 0 0 Ottawa, Ontario --- Upon commencing on Monday, November, 00 at : a.m. THE CHAIR: Yes, good morning. Please be seated. Thank you. Yes, are we ready to proceed? CPL. HART: Yes, sir. MR. McGONIGAL: Yes, sir. THE CHAIR: Thank you. The first order of business then is to swear in our Court Reporter, and I understand that we don t have a Bible. AFFIRMED: ANNE BRANT, Court Reporter. THE CHAIR: If I could confirm with the member, the official language for this hearing is to be conducted in English? MR. McGONIGAL: That s correct, sirs, ma am. THE CHAIR: For the record, today s date is November th, 00. We are in Ottawa, Ontario. This hearing is before an adjudication board appointed pursuant to the Royal Canadian Mounted Police Act in respect to alleged contraventions of the Code of Conduct by Constable K. R. Gregson, Regimental No..

5 0 0 The Board officers are myself, Superintendent John Reid as Chair, to my right Superintendent Tony Pickett and to my left, Chief Superintendent Barb Fleury. The Appropriate Officer is represented by Corporal Jonathon Hart and the Member is represented by Mr. Larry McGgonigal, while the Court Reporter is Ms Anne Brant. The Board takes notice that the member was served with a Notice of Hearing with respect to section on December th, 00, and subsequently a Notice of Place, Date and Time, with respect to section. on October th, 00. Are those dates substantially correct? MR. McGONIGAL: Yes, sir. THE CHAIR: Thank you. I understand we have some motions. However, I think that the proper procedure might be that they are not jurisdictional in my mind, so we will read in the allegation first and have that on the record. Constable Gregson, take note that on or about March th, 00, at or near Ottawa, in the Province of Ontario, you disobeyed a lawful written order of a member who is superior in rank

6 0 0 or has authority over you, contrary to section 0 the Royal Canadian Mounted Police Regulations (). Particulars of that allegation are such that:. At all material times you were a member of the Royal Canadian Mounted Police (RCMP).. At all material times you held the rank of Constable with the F Division Community Police Services section located in Regina, Saskatchewan.. On September th, 00, pursuant to section. of the Royal Canadian Mounted Police Act, you were suspended from duty by the Commanding Officer of F Division, Assistant Commissioner Darrell McFadyen. On September st, 00, Assistant Commissioner McFadyen signed an Addendum

7 0 0 to your original suspension order in which you were further ordered that:...during your suspension you are not to attend to the residence of any employee of the RCMP unless invited by that employee. You were served with this Addendum to the original suspension order on September st, 00.. On March th, 00, you attended, unannounced, to the private personal residence of the Commissioner of the RCMP, William J. S. Elliott, in Ottawa, Ontario. You were greeted at the door by his son, John Elliott, and advised that the Commissioner was not home. You then left a folder containing an assortment of documents and requested that they be given to Commission Elliot for his

8 0 0 review. Your uninvited attendance at Commissioner Elliott s residence was in direct contravention of the Addendum to your original suspension order that was served upon you on September st, 00.. Through your actions, you disobeyed a lawful written order issued to you by Assistant Commissioner McFadyen. Allegation number, that s because number and are withdrawn so I ll remain with the original numbering of and. Allegation No. : Take notice on or between September th, 00, and July th, 00, at or near Regina, in the Province of Saskatchewan, you disobeyed a lawful written order of a member who is superior in rank or who has authority over you, contrary to section 0 of the Royal Canadian Mounted Police Regulations (). The particulars of such allegation are that:

9 0 0. At all material times you were a member of the Royal Canadian Mounted Police (RCMP).. At all material times you held the rank of Constable with the F Division Community Policing Services section located in Regina, Saskatchewan.. On September th, 00, pursuant to section. of the Royal Canadian Mounted Police Act, you were suspended from duty by the Commanding Officer of F Division, Assistant Commissioner Darrell McFadyen. Throughout the duration of your suspension order you were required to report, in person, each working day between 0:00 hours and 0:00 hrs to the Commissionaire on duty at F Division Headquarters, RCMP, Regina, Saskatchewan. You were further required to report any overnight absences from Regina, that were not duty related and/or authorized by way of annual leave, to Inspector Brenda Lucki or her delegate. You were served with this suspension order on September th, 00.. On September th, 00 you advised Assistant Commissioner McFadyen via , that you were no longer adhering to the conditions

10 0 0 placed upon you by the suspension dated September, 00. Assistant Commissioner McFadyen did not authorize or otherwise agree to your request to rescind or modify the terms of the suspension order. Your last officially recorded day of reporting to the Commissionaires at F Division RCMP Headquarters was on September th, 00.. Through your actions, you disobeyed a lawful written order issued to you by Assistant Commissioner McFadyen. Confirm that the member understands the allegations? MR. McGONIGAL: The member understands the allegations, sirs, ma am. THE CHAIR: Does the member admit or deny the allegations? MR. McGONIGAL: The member denies the allegations. THE CHAIR: Very well. We should proceed then. The Appropriate Officer can call his case, although I understand there may be a motion? OPENING MOTIONS: MR. McGONIGAL: With respect to that, sir, there s actually two motions essentially before you.

11 0 0 The first motion, it deals with whether -- I think the one aspect of the motion I draw to the Board s attention is whether the allegation that Constable Gregson failed to report in pursuant to the suspension order dated September th, 00. Our motion is that that allegation has not been signed by the Commanding Officer in the appropriate time frame, pursuant to section. of the Act. I do believe, however, that it is probably more appropriate to allow evidence to be called on that and then to have the Board decide at that time. Further, with respect to the -- although I am prepared to deal with it based on essentially what s before us now and to put cases before the Board dealing with the legitimate expectations of any member who is subject to a disciplinary action. The second motion, of course, deals with challenge under the Charter and I believe -- it s my position that that motion should be dealt with as part of the arguments after evidence is called because, of course, it is required in any allegation of a breach of the

12 0 0 Charter that evidence be called to support that allegation or to support the suggestion that the actions of the Commanding Officer have breached section of the Charter. THE CHAIR: Corporal Hart? CPL. HART: Sir, with respect to my friend s first -- he did it this way, I guess -- so his first motion concerning time limitation issues. I would submit that this motion really has been dealt with and, for lack of a better word, fails because of its lack of -- paragraph of my friend s motion he refers to that he was seeking, as a remedy, a stay of proceedings under the -- taken from the Notice of Disciplinary Hearing dated May th, 00, and that that notice didn t meet the time limitation requirement. As the Board is aware the Appropriate Officer Representative or the Appropriate Office has withdrawn that Notice number, which would be the hearing date of May th, 00, therefore I m not sure how we can deal with a motion that has for all intents and purposes been dealt with through the withdrawal of the allegations. With respect to the second motion,

13 0 0 0 and the Charter, I had an opportunity to speak to my friend briefly this morning and I will say that I had some difficulty in understanding what it was my friend was actually looking for with the request for a Charter motion. We discussed that it may come more clear as evidence is heard and I m okay with that. However, I would ask that a motion be put forward or, not necessarily a motion but at least some type of direction or guidance from the Board be provided on whether or not section of the Charter even applied with respect to the RCMP Act or RCMP disciplinary proceedings. I have provided my friend with some case law and I m prepared to provide the Board with some case law as well with respect to whether or not section even applies. Not the merits, not whether -- not the actual evidence at this point but I would like clarification whether or not section, as I ve said, even applies to our proceedings. THE CHAIR: Mr. McGonigal? MR. McGONIGAL: My friend is right that actually the written motion does speak to the withdrawn allegations. However I do still put

14 0 0 forward a motion at this time that allegation is out of time. That it does not stand because it was not brought within one year of the Commanding Officer knowing the name and substantially the res of the matter that is before this tribunal. But my suggestion is that we deal with this after we call some evidence. I leave it in your hands but I think it can be properly dealt with, you know -- THE CHAIR: Well, we ll have to back up. I m going to ask for clarification here. I believe you just indicated to me again, to us again, that the time limitation does speak to allegation number. That allegation has been withdrawn; is that correct? That s the Notice dated May the th? MR. McGONIGAL: The written motion deals with the allegations that were withdrawn that were dated May th, 00. THE CHAIR: So we are now dealing with a Notice dated November. MR. McGONIGAL: Yes. THE CHAIR: That s allegation number. MR. McGONIGAL: Notice number.

15 0 0 THE CHAIR: I see we re getting confused already, or I m getting confused already by calling it an allegation and not a notice. The November 00; is that correct? MR. McGONIGAL: The notice signed by the Commanding Officer November 00. Sorry. I ll say it s the Appropriate Officer because it wasn t the Commanding Officer who signed it, it was the designated Appropriate Officer. THE CHAIR: That s this document that we have here, that we read, there s two allegations. MR. McGONIGAL: Yes. THE CHAIR: Allegation number and allegation number, was signed by the Appropriate Officer on November th, 00. MR. McGONIGAL: Yes. THE CHAIR: That was the one that we re proceeding with. That was the one that was called Allegation number, and Allegation number has been withdrawn. So your motion was with respect to number. If you wish to make a motion now with respect to number, which is on time

16 0 0 limitation, it is appropriate for you to do so, but you would have to initiate that motion now. MR. McGONIGAL: I would like to initiate that motion now. THE CHAIR: So do you have anything you wish to give to the Board? MR. McGONIGAL: With respect to this motion, one of -- the two cases I ve just handed you, and I ll refer to them as Mount Sinai and Worthington, in their shorter forms, deal with the doctrine of legitimate expectation. It is our submission that members of the Royal Canadian Mounted Police have a legitimate expectation that section. of the Act will be complied with by a Commanding Officer. When you look to the cases you will see that it is not only -- in those two cases -- and I ll speak to them generally because within those cases you ll find that they speak about the doctrine of legitimate expectation and I think you need to read the entire section. I won t be reading them to you but indeed, essentially those cases deal with situations where people have taken action or people have -- corporations -- or in Mount Sinai it was a hospital relocated into

17 0 0 Montreal and upon making that move to Montreal they had had the Minister s promise to do something upon their move. The Minister failed to follow through with his promise and the court essentially said no, they have the legitimate expectation that you will properly follow through on your promise once you ve moved your hospital to Montreal. Both Mount Sinai and Worthington also indicate that the legitimate expectation does not necessarily come from just simply an agreement as between the parties. So you can find legitimate expectations from other sources. I would submit to you that in the spirit and intent of the RCMP Act, that discipline be initiated in a timely fashion as enunciated in section sub, that it is a legitimate expectation of every member that if the Commanding Officer is aware of the name of the member and the essential elements of the allegation which are later brought forward, that the Commanding Officer must bring those forward within one year of knowing those two elements. Within Allegation of Notice -- just to be clear on the record what we re dealing

18 0 0 with, we note that in paragraph of the particulars, that the Commanding Officer, Assistant Commissioner McFadyen, was aware on September th, 00 that Constable Gregson had sent him an saying that he would no longer be reporting in. You have before you the allegations, signed by Deputy Commissioner Rod Knecht, who without contention is the Appropriate Officer with regard to discipline on this matter as of May of 00. I can certainly get you copies of the Commissioner Standing Order with regard to the change of the Appropriate Officer if you need, but we take no contention that with regard to part disciplinary action, Deputy Commissioner Rod Knecht became the Appropriate Officer in May of 00. But he signed that notice at Edmonton, Alberta on the th of November 00, clearly more than a year past the date that the Commanding Officer knew -- and at the time it was Assistant Commissioner Darrell McFadyen, he was the Appropriate Officer on September th, and he clearly knew that this member was not reporting. It says so within the allegation in the particular. So why is it that we are sitting here before this panel when more than a year after

19 0 0 the Commanding Officer knew that these allegations would later be brought forward, the allegations that are now brought forward, why are we sitting here when the allegations were not signed for more than a year after the Commanding Officer knew about the allegations? I turn to the argument that I expect my learned friend will put forward, and that is that within the allegation itself it states that between the dates of -- on or between September th, 00 and July th, 00. So I expect my friend to put forward an argument that part of the failure to report includes the date of July th, 00 and is well within the time frame that is allowed within the Act. So I ll deal with that argument now so that my friend can certainly have the liberty to know what I m about to say, and that is in the doctrine of legitimate expectation, and in the spirit and intent of the RCMP Act we re not supposed to just wait and sit on our hands with respect to discipline. The purpose of section. of the RCMP Act is to bring forward discipline in a timely

20 0 0 fashion. I suggest to you that the legitimate expectation of the member, and of every member of the RCMP, is that we wouldn t sit on our hands. And I say we as in the RCMP wouldn t sit on their hands, and whatever decision-maker is making that decision, that they would comply with the Act in its spirit and intent. Those would be my submissions with respect to this preliminary motion. THE CHAIR: Yes, Corporal Hart? CPL. HART: Well firstly, sir, I go back to what I said initially. The actual motion referred to something that was gone, therefore I m a little taken by surprise that he s now bringing this up because I thought it was with respect to the allegation that has been withdrawn. Therefore I ve not had the liberty of reading my friend s cases that he s brought forward and I would ask for a bit of time to have a look at them as well. THE CHAIR: How much time would you like, Corporal? CPL. HART: Oh, perhaps half hour or so, sir. THE CHAIR: Yes. Will you be in a

21 0 0 position to have a certificate prepared? Since we now have a motion we should have a certificate or maybe we ll have some sort of agreement or waiver on a certificate from your friend. You should discuss that. CPL. HART: Yes. Maybe an hour then would be better. THE CHAIR: We ll adjourn for approximately one hour. --- Recess at : a.m. --- Upon resuming at 0: a.m. THE CHAIR: Yes, Corporal Hart? CPL. HART: Sir, thank you. I ve had an opportunity to discuss this matter with my friend and also, to the best of my ability, prepare argument. Firstly, with respect to the certificate that you had asked for, my friend has agreed by consent that the CSO can be entered for all intents and purposes as a certificate as to when the Appropriate Officer became aware of the allegations. In this instance Deputy Commissioner Rod Knecht. I have a copy of the CSO for that purpose.

22 0 0 MR. McGONIGAL: Yes, it is agreed that the Commissioner Standing Order 00-0, I think it s dated May th, 00? CPL. HART: Yes, that s correct. MR. McGONIGAL: Is agreed by the member that that is the date that Deputy Commissioner Knecht, who is the current Appropriate Officer, became aware of these matters. CPL. HART: Sir, I m not certain who s taking exhibits? THE CHAIR: Just the one form. SUPT. PICKETT: Mark as Exhibit AO-, Commissioner Standing Order No. 00-0, dated 00, May th. EXHIBIT NO. A0-: Commissioner Standing Order No dated May, 00. CPL. HART: Sir, it s my submission that this CSO which is dated May th, 00, and been entered as certificate of the knowledge of the Appropriate Officer by consent by my friend, given that date that the notice in Allegation of the particulars are covered entirely by the knowledge of the Appropriate

23 0 0 0 Officer and, therefore, should stand. However, I will be making arguments as well, in the alternative, if the Board should decide otherwise. Again in the alternative, sir, that it is open to the Board to in effect admit a portion of the notice. That the allegation itself refers to a date of on or between September th, 00 and July th, 00. Therefore that the allegation encompasses this entire time frame. It s not static as written, it s on or between. Therefore the allegation is throughout that. Therefore if we take the date, that the matter was in fact initiated, it s not the date in the notice that is of import here, it s the date that the matter was initiated. I will provide this to my friend, and as well a copy again for the Board. The date that this matter was actually initiated was November th, 00. This was signed by Deputy Commissioner Rod Knecht, pursuant to the Commissioner Standing Order No already submitted. THE CHAIR: Thank you. Any issue

24 0 0 with this document coming in? MR. McGONIGAL: None whatsoever. THE CHAIR: Thank you. SUPT. PICKETT: Exhibit No. AO-, Notice of Designated Officer to initiate this hearing pursuant to part of the RCMP Act, dated the th of November 00, signed by Deputy Commissioner Rod Knecht. EXHIBIT NO. AO-: Notice of Designated Officer to initiate hearing pursuant to part of the RCMP Act, dated November, 00, signed by Deputy Commissioner Rod Knecht. CPL. HART: Again, sir, this is my submissions in the alternative as my first one is that the CSO stands alone as the certificate and the actual date. Therefore the entire allegation is encompassed by the certificate or the CSO that went in. However, if the date of initiation, the Board decides, is when the intent for all intents and purposes encompasses, that will be the date.

25 0 0 I submit that the allegations themselves speak to a violation or an offence under the RCMP Act that in a sense is ongoing, it s continuance. Therefore without naming all the dates between November th, 00 and or -- sorry, the date of initiation, which when we go back, November th, sorry, that s the confusion I had. November, 00 because it s one year back from the initiation document of November th, 00. Therefore we have to go to November th, 00, November th -- oh, sorry, November th, 00, November th, 00, so on and so forth. The entire month of December. The entire month of January 00. The entire month of February 00. The entire month of March. I m sure the Board understands my argument about that. All of those dates would be encompassed in the allegation as if the Board was to decide that it s the initiation document, therefore November th, 00, one year back, all of those dates do fall within the particulars of the allegation. In support of this argument I turn to the Federal Court decision of Gill v. Canada. I apologize, as I said before, I thought the motion

26 0 0 only pertained to the one so I only have one copy. Well, I only have one copy for a lot of my cases. In this instance I only have one copy for my friend and one copy for the Board, if I may. Again I apologize, that my copy is not -- well, it s the same case but mine was Quicklaw and I believe that came off the Federal Court website. So hopefully the paragraph numbers should be consistent. Nevertheless The Appropriate Officer Representative agrees as stated -- this case is on point as it does involve a member of the RCMP and the particulars of the allegation. The Appropriate Officer agrees that a basic principle of natural justice demands that the individual affected must be made aware of the case against him so as to allow the person to prepare an adequate defence. That s the key. That the particulars must contain sufficient detail to allow the member to understand the allegation. In this respect we also turn to section of the RCMP Act which lists, in sub, the contents of a notice, what is to be expected to be placed in an notice. Statement of the

27 0 0 particulars of the act or omission constituting each alleged contravention. The name of the members of the adjudication board. Separate statement of each alleged -- I m paraphrasing here, sir, of course, with your liberty. And in particular, subsection, the statement of particulars. Every statement of particulars contained in notice in accordance with paragraph (b) shall contain sufficient details including, where practicable, the place and date of each contravention alleged in the notice to enable the member who is served with the notice to determine each such contravention so that the member may prepare a defence and direct it to the occasion of the events described in the notice. So in Gill the court looked to this and asked what could be expected when drafting the particulars and it dealt with the issue of whether or not the applicant in that case received sufficient notice of the allegations made against him, such that the duty of procedural fairness was breached in the circumstances. I m at page. I m sorry, paragraph. Paragraph 0, it quotes -- I m sorry, it s Justice O Keefe of the Vancouver

28 0 0 Federal Court -- quoted the decision of Golomb and College of Physicians and Surgeons. Going down from there, the paragraph that starts: It follows from the requirement that the charge must be particularized to that extent that an accused must not be tried on a charge of which he has not been notified. It also follows that evidence ought to be confined to the charge against him. It goes on onto -- I guess it s all part of that paragraph 0: It is therefore particularly important for a person accused of professional misconduct to know with reasonable certainty... Key word, reasonable.... what conduct of his is alleged to amount to professional misconduct. In this instance, in the Gill

29 0 0 decision, the court was concerned because the applicant was -- paragraph -- Justice O Keefe felt that the applicant had been held accountable for conduct which was different from what was alleged in the particulars. That the board went straight outside of the particulars and at paragraph the board made findings of disgraceful conduct based on other facts. Paragraph, the notice of hearing set out the allegations, so on and so forth. The Federal Court took issue with that. I submit, again in the alternative -- and I m not asking the Board to do that, to stray outside of what the particulars are with respect to the facts of the contravention the member is alleged to have committed -- but the date and time encompasses, as I ve said, November th, 00, November th, 00, and the evidence will show that on those dates he did not report as required. Therefore if the Board finds that that is the date, the offence is that it s a continuous one, still was occurring on these dates and they meet within the date and time, on or

30 0 0 between, as set out in the particulars. Further, the Federal Court, again in Gill as it was appealed -- that s the second one I provided -- they quoted again the sections of the Act, at paragraph. Paragraph : The issue of whether the particulars contained sufficient details so as to comply with subsection () of the RCMP Act is a question of mixed fact and law, attracting a reasonableness simpliciter standard of review. Again I submit that that is the key, reasonableness. Was it reasonable? The board agreed that there was no evidence in that instance to support what the adjudication board did. But what s of particular importance to our situation is paragraph, and I m going to read the entire paragraph. Again this is the Federal Court of Appeal judgment by Justice Décary: This is not to say that the

31 0 0 particulars should be read microscopically or in an unduly narrow manner. They need not be drafted in minute details or in a manner that meets all the standards imposed by the Courts with respect to criminal proceedings. The member is served, after all, with a copy of the evidence. The terms used must attempt to describe as accurately as practicable the substance of the allegation. Where a statement of particulars set out in deliberate terms the boundaries of the allegation insofar as place, date, occasion or events are concerned, the member should expect the Adjudication Board and, eventually, the Commissioner, not to base its ultimate decision on findings

32 0 0 that go beyond these boundaries. In the end, the sufficiency of the notice will be assessed according to the circumstances of a given case. Again, I submit it is open to the Board, in the alternative, to accept the initiation as the date but then that s it. You re not then required to step outside of what the particulars allege because the offence is occurring on those dates as well and they are fully encompassed within the particulars. Constable Gregson was well aware of the allegation and he was well aware of the time period, on or between. With respect to my friend s cases on legitimate expectations, I only had a cursory look, and I apologize, I was not able to comprehend exactly what my friend was suggesting in terms of his argument with respect to legitimate expectations and how that affects the date or the Board not being able to find that the allegation does encompass the time frame of the initiating matter again, in the alternative, or the

33 0 0 0 certificate, therefore I have no comment on it. Those are my submissions. THE CHAIR: Yes, Mr. McGonigal? MR. McGONIGAL: Briefly then. With respect to the Exhibit AO number, the Commissioner Standing Order 00-00, we agree that the Appropriate Officer as of that date was Deputy Commissioner Rod Knecht but, as I ve stated in previous argument and I reiterate for clarity because we ve submitted that almost by way of evidence of when the current Appropriate Officer was aware of it, I reiterate though on September th, 00 the Appropriate Officer was still Assistant Commissioner McFadyen, and he was aware of the member s name and the particulars of this allegation. Second, I accept that, as I think the Board is well aware, that the Notice to Initiate and seek the names of the three board members is probably the most appropriate date we can use in setting the one-year time frame. I don t have the case name before me, it might be Therriault, it might be -- I think that that s an appropriate date that we can use because on that date it clearly shows the

34 0 0 Appropriate Officer s intention to initiate a form of disciplinary process. And when you look to the spirit and intent of the Act, really that s what we re trying to get to, is within one-year time frame did the Commanding Officer make a decision to initiate, and we have strong evidence. So I accept that November th, 00, the date on which the Notice to Initiate was sent to Ottawa would be the appropriate date to use. But that doesn t change the fact that the spirit and intent of the Act is that discipline should be initiated within a year s time frame from the date that the Appropriate Officer knew the name and the particulars of the allegation, or with some certainty the particulars of the allegation. This is an easy charge, did he or did he not comply with an order? The Commanding Officer was well aware -- and he was the Appropriate Officer -- he was well aware on September th, 00. My friend has pointed to the Gill decision and talked about the issue of procedural

35 0 0 fairness. And just briefly on that point, we re not dealing with the issue of procedural fairness here. We re dealing with a jurisdictional issue. Timeliness is not about is the member aware and able to come before this Board and answer the charges. Timeliness is jurisdictional. Therriault says this very clearly; if you are outside that one-year time frame there is no jurisdiction to hear evidence on those allegations. It s out of time there s no jurisdiction that this Board can hear it. Jurisdictional arguments do not deal with what my friend has dealt with in Gill, and that is procedural fairness or the requirements of notice to the member. My friend has suggested that you can accept only a portion of the allegations. It s our submission that the allegations, as stipulated, are one event and you should read it that, on or between September th, 00 and July th, 00 an event occurred. That s the way it was written. That s the choice that the Appropriate Officer made when he signed the allegations. You should read it as a singular event.

36 0 0 He could have chosen to break it down into month or by the day. I know that there is some inefficiency with regard to that process but when we look to it and look to what the member can legitimately expect and members of the Royal Canadian Mounted Police can expect, and I think members of the public can expect, that the administration of the RCMP by its senior members is that if there is an allegation to be brought forward that a member has breached the Code of Conduct, it will be brought forward in a timely fashion and not left till more than a year after, as Parliament has so designated, not left more than a year after the Appropriate Officer is aware of the name of the member and the particulars of the allegation. Nothing further, sir. THE CHAIR: Thank you. It will be appropriate then for us to take a few moments to deliberate on the submissions that we ve heard from you with respect to the time limitation motion and we ll do so. Approximately or 0 minutes. --- Recess at :0 a.m. --- Upon resuming at : a.m. DECISION ON MOTIONS:

37 0 0 THE CHAIR: Please be seated. Thank you. The Board is back in order. We ve had an opportunity to review your submissions and the cases that we had before us. We ve come to a decision with respect to the motion on time limitation for Allegation number. The Board is of the view that the matter before us is a continuing offence. We do accept that the Appropriate Officer became aware on May th, 00, as per the certificate that has been provided through the introduction of a CSO. We also acknowledge that the Appropriate Officer became aware of this matter on September th, 00, with the receipt of an e- mail. However, this is a continuing daily offence. The allegation did occur on each date listed on or between September th, 00 and July th, 00, so the allegation is alleging. No specific date within the particulars is noted therefore the Board must make note of all of those dates individually. The Board is of the view that the initiation date is indicative of when a one-year period for an allegation for it to fall in that

38 0 0 preceding time period. So we accept that November th, 00 returns us to November th, 00. Thus the dates of November th, 00 to July th, 00 are within the one-year period and, as such, the Board finds we have jurisdiction to proceed. MR. McGONIGAL: Thank you, sirs, ma am. THE CHAIR: Yes. CHARTER ARGUMENT: CPL. HART: Sir, I guess that brings us back to my initial comments with respect to the motion and the Charter, and in particular I guess you could couch it in terms of I m putting forward a motion in that I would like to know how my friend says section of the Charter to an RCMP disciplinary proceeding. I m prepared to argue why it doesn t apply but, of course, the Board is the ultimate decision-maker. I feel this is critical, that before we even start hearing evidence, and if he raises section Charter arguments but it doesn t apply in the first instance, which the purpose of raising those arguments if the determination is that section doesn t apply at all.

39 0 0 THE CHAIR: Well, before I turn it back to Mr. McGonigal I m going to suggest to you that what you re asking is for the Board to say whether it applies or not, and you re suggesting that it doesn t apply. Well, I would rather have you, Corporal Hart, make a motion to say why it does not apply, if that s what you so desire. It s not up to us to give you our indication. It s up to you to convince the Board otherwise. CPL. HART: That s fine. THE CHAIR: Now, having said that, Mr. McGonigal, I understand, has given us notice of intention to make this motion at the end of the evidence. So I think it might be more appropriate then to argue whether it s applicable or not at that time, once we ve heard the evidence. Now, having said, that maybe I ve given the response by Mr. McGonigal to you, and I shouldn t have spoken so hastily. I m not sure how you wish to proceed, Corporal Hart. CPL. HART: Well, I guess the concern I have is that -- I mean, I ve already, as

40 0 0 you know, with respect to the first -- not belittling the point by any stretch but I looked at the May th date and so I thought that motion was gone. So now I turn to the second motion and this is the motion my friend s put forward and the reasons for his motion and I fail to see -- in the grounds for the motion it says section of the Canadian Charter of Rights and Freedoms, the applicant submits that his right to life, liberty and security of the person has been violated. Then it speaks of evidence to be relied upon. I mean, I could make my submissions but I don t see where he has put forward -- I m at a loss to see, sir, in his notice, what exactly he s saying with respect to section. If you feel it s my motion in that instance, as you ve said then yes, I would like to put forward evidence with respect to whether or not section -- because that s essentially what it says. It says section applies. THE CHAIR: Well, perhaps, Mr. McGonigal, you would like to give us some sort of indication as to your thoughts as to what your grounds were, if you wish to.

41 0 0 Before we jump that far, we are looking at this particular motion and I would ask you to look at paragraph of that motion. In the fourth sentence it says: And in purported addendum to the suspension order dated September, 00. I take it that that is a typo and is meant to say 00? MR. McGONIGAL: That is correct. CPL. HART: No issues. My friend provides me liberties in that instance as well. THE CHAIR: Thank you. No, no, the Board noticed this so we wanted to make sure that we had that at least addressed and it s the correct date. So we ll proceed from there, Mr. McGonigal? MR. McGONIGAL: Thank you, sir. With respect, the notice of challenge under the Canadian Charter of Rights and Freedsoms does stipulate in the second paragraph: Further take notice that the member representative wishes to call evidence in support

42 0 0 of this motion. I think it most appropriate that alleged breaches of the Charter be supported by evidence. In the reasons for the motion, my learned friend can actually find the impugned government action. I take it from what my learned friend is saying is that even in the case where the Appropriate Officer is seeking dismissal, the adjudicative process is not subject to a section Charter application. There is no problem with that. In fact we re not going to even argue about that unless my learned friend somehow suggests that, as noted in paragraphs, and of the section noted reasons for the motion or reasons for motion, that that somehow applies to the act of the Commanding Officer because remember, it s the act of the Commanding Officer who is most definitely an agent of the government, acting under the authority of the RCMP Act that is challenged. It is not the adjudicative process that is challenged, it s the act of the Commanding Officer.

43 0 0 0 So in that case it is very clear from Blencoe that the Charter doesn t apply. My friend, I think, is trying to seek a decision far too early on this and as such even though we re engaging a little bit in the substantive argument of whether section applies or not, it is better left to, as I indicated, after the evidence was called and part of the arguments of this case, because it will be, you know, there are going to be arguments on this after evidence is called about why the member has denied the allegations. It s during that process that we should engage in argument and my friend should not be seeking an early indication at this time with regard to my submissions or my challenge under the Charter. I wanted to give him notice because at times, for instance this morning, the times that he doesn t get enough notice about our challenges. So I wanted to provide him an early opportunity to consider the cases that I ve put forward, to consider the fact that the impugned action here is the government action, that is of the Commanding Officer not of this adjudicative

44 process. 0 0 There s a big difference and I think that should be left to argument. THE CHAIR: Corporal Hart, does that assist you? CPL. HART: No, sir. It does and it doesn t. My friend suggests or submits that the reason for providing notice of the Charter challenge was to avoid instances like earlier where perhaps I m put at a loss as to what -- or taken by surprise, I ll use those words, and I appreciate my friend takes that effort. However, my counter-motion -- if you want to call it that, sir, I don t know exactly how you wish to term it -- is that my friend has provided his notice and then stipulates that it does apply. So I look to his notice and what he says, you know, for example the case law in support. One would assume that if this is his notice of how the Charter applies, then I am expected to prepare based upon what is in the notice and to look to the case law in support of his notice. I again turn back to the grounds

45 0 0 for the motion specific, or in a general sense it simply says section of the Canadian Charter of Rights and Freedsoms, the appellant submits that his right to life, liberty and security of the person has been violated. That s it. Then it refers to the impugned conditions. You could look at the reasons for the motion a bit more. It says section of the Charter have been breached. Restrictions of his freedom and made without lawful authority or prescribed by law. Then he speaks of a remedy in number. For all intents and purposes section of the Charter and the Oakes test to say that if there is a Charter challenge then how to save it. So what I did was I said well, so I can try to establish the reasoning of my friend, is I said well, I m going to look at the case law and see perhaps that will support what it is he s asking because I still don t see where he s saying section applies. So the first case my friend submitted, and I know he provided it to the Board as well, was the Therens decision and this decision does not refer at all to section of the Charter.

46 0 0 Instead it deals with the right to counsel and section () Charter remedies. Impaired. And the meaning of section 0 and without due delay, the right to legal counsel without delay. How so the meaning of detention. So this did not assist me, I submit, in any way to establish okay, so how is he saying that section applies in this instance when it s not on point. My friend then submitted the case of Greater Vancouver Transportation Authority. This case dealt with -- a Supreme Court decision -- dealt with the meaning of government under the Charter. The constitutional validity of legislation, the Oakes test and reasonable limits. Page of the decision provided by my friend, paragraph, it spoke of if the entity is found to be government and again that paragraph speaks to whether or not the Charter applies to government activities. There s no reference to section in any sense, just whether or not the Charter as a whole applies. Again, as it goes on, as I ve already said it speaks to -- page, remedies,

47 0 0 section of the Charter, whether it can be saved. Page specifically speaks of remedies for the Charter of a violation. Section () remedies. No specific reference to section. I then looked to the next case, Kane vs. the University of British Columbia. This case dealt with suspension without pay, a breach of natural justice. It mentioned bias. At page, that no man could be a judge of his own cause. Page, a principle that each party is entitled to be informed and to make representations but again, no reference to section of the Charter. MR. McGONIGAL: You know, I hate to interrupt my friend in the midst of his submissions but is he making my submissions by guessing? I ve provided him with notice. The notice is clear. How I use the case law is something that we can discuss but, quite frankly, I put the cases forward and I ve provided to him the cases that I intend to call and it s not necessary for me to tell him in detail the submissions and

48 0 0 arguments I m going to make. That actually, quite frankly, is unfair to my client. I don t need to tell him how I m going to use the cases. I need to give him notice and give him the cases and if he wants to make an argument how the Charter doesn t apply, let s leave it for the appropriate time rather than have him guess at my submission. Sorry. In that regard I ve spoken or served him with an and I do have the cases in three binders and actually three copies of the notice of Charter challenge in that regard for the convenience of the Board. One tree less in Canadian forests. THE CHAIR: Thank you. Corporal Hart? CPL. HART: Well, sir -- THE CHAIR: Perhaps we could just go right to the essence of your motion then. CPL. HART: Yes. THE CHAIR: I understand that you ll -- CPL. HART: Well, I think my friend addressed it when he said that -- he put forward the motion. He mentioned -- if needed I d

49 0 0 have to ask the Court Reporter to say exactly, I don t want misquote here -- but it was for clarity or clear purposes. I m not suggesting that I know why he put forward these cases. What I am saying is I m trying to find where he says section applies. So I looked at his cases to try to rationalize that because it s his motion. He put me on notice to say that section -- that there was a section violation, period. It s not clear. Nowhere does it-- other than that one, you know, there s a section -- that all it says, section violation, that s it. And I do have case law that speaks to that, this section, whether or not it applies. I realize that the arguments have to come forward with respect to -- the determination has to be made and that s clear in the case law, which I will put forward, but you have to first decide whether or not the Charter applies to the matter in that instance. If that particular section of the Charter applies to the matter in question. Then you get into what was the violation. What are the appropriate remedies.

50 0 0 In fact section, there s three separate elements to it; life, liberty, security of the person. You then have to decide is it a life - - did it impact his life? Did it impact his security of the person? Did it impact -- life, liberty, security of the person -- his liberty? The motion doesn t make that clear to me so I m asking the Board to decide first of all whether or not that section of the Charter even applies to our proceedings. Perhaps it would assist if I provided you with my case law on this matter. There are a number of decisions from the Board that says section doesn t apply. That it does not apply to RCMP proceedings. THE CHAIR: Corporal Hart, but let me -- the Board has a notice of intention to argue section at some time later on in the proceedings. We may get later on in the proceedings and the member may choose not to make that argument. He may not make that motion. He has not made a motion yet. He s given notice of intent to make a motion. That s why I m trying to fathom why we re jumping into these arguments? Why we need to make a decision with respect to whether the

51 0 0 Charter applies or not? Should we not wait until such time as we see if there s a motion before us and then argue at that time whether it applies? And we ll certainly be glad to hear your arguments as to whether section of the Charter applies. I think we can all agree that the Charter applies. CPL. HART: Yes. THE CHAIR: Then we would have to look at that next argument, and you would do so at that time. Would that not be the appropriate way to proceed? CPL. HART: Well, sir, and I m fine with that and, of course, the Board -- THE CHAIR: Well, I ve cut you off in your motion in rebuttal to the motion, I guess, if you want to call it that, or an objection to a motion. I am just trying to make sure that we proceed in an orderly fashion and in a manner that s organized. We do not have a motion before us. We have a notice of intent to make a motion later on in the hearing. He may not choose to do so. That will be his prerogative.

52 0 0 CPL. HART: Well, I guess I took the liberty, sir, of jumping to the conclusion that if he put the notice of intent to make that motion, that he would actually make a section Charter motion. If the Board would rather we deal with it at the time. Once he makes any reference to the Charter I would then be stopping or asking the Board to basically stop the process and then make a determination whether or not the Charter even applies because I don t understand how it is that the Board can hear evidence with respect to section. But if the Board comes back and says section doesn t even apply, then what was the purpose of hearing the evidence in the first place? THE CHAIR: Well, the evidence we re about to hear is your evidence, to prove the case. That s where we re at right now. CPL. HART: And that s fine, sir. THE CHAIR: Okay. Then let s proceed in that fashion. CPL. HART: Sir, if I may, there s a couple of housekeeping things, but I also note

53 0 0 0 it s close to noon. The first, my friend and I have agreed and I ve provided him with a copy as well, there s a number of Can Says that can be entered in as evidence. I ve taken the liberty of placing them all into one binder for yourselves. There are Can Says with respect to the evidence of Inspector Lowther, Sergeant Scharf and Corporal Ball. For the purposes of proceeding, you don t need to read them immediately but, obviously I enter them as an exhibit so the Board will have the opportunity at some point. THE CHAIR: Yes. MR. McGONIGAL: The Can Says of Inspector Lowther, Sergeant Scharf and Corporal Ball are agreed to by the member, and I submit that they are essentially agreed statements of what these people would have testified to had they attended here in person and testified. So these three Can Says are agreed to by the member as evidence to which the Board is properly able to consider because we ve agreed to that. THE CHAIR: So with consent by the member these Can Says -- because these are not