Administrative law – Decisions of administrative tribunals – Royal Canadian Mounted Police; Police – Professional misconduct / conduct unbecoming – Competence – Disciplinary proceedings; Judicial review – Investigations – Compliance with legislation – Procedural requirements and fairness

Herrera–Morales v. Canada (Attorney General)

A former RCMP officer’s application for judicial review was allowed, as the probationary review officer was held to have unreasonably used an unsuitability finding to discharge the officer in place of a disciplinary sanction.

[2016] F.C.J. No. 561

2016 FC 578

Federal Court

May 25, 2016

Heneghan J.

A former RCMP constable brought an application for judicial review of a probationary review officer’s decision affirming his discharge for unsuitability. The applicant was recruited by the RCMP in November 2010. He completed cadet training in May 2011 and became a probationary regular at that time. The applicant’s training continued through a field coaching program, during which the applicant was involved in a number of incidents that formed the basis of his discharge. These incidents included incomplete or copied written work, failure to properly document and log evidence, linguistic concerns, failure to carry out duties, use of the police database for civilian purposes and untruthfulness to reporting officers. In addition, the applicant’s competencies assessment report included ratings of “unacceptable” and “needs improvement”.

In October 2011, the applicant was removed from operational duties and a Code of Conduct investigation pursuant to Part IV “Discipline” of the Royal Canadian Mounted Police Act, R.S.C. 1985, c.R-10 (the “Act”). Three breaches of the Code of Conduct were identified. A subsequent Code of Conduct investigation was commenced and a formal disciplinary action was commenced, as the applicant had infractions while on administrative duties. No hearing under Part IV was held, though provided for in the Act. Instead, a Notice of Intention to Discharge pursuant to Part V “Discharge and Demotion” of the Act was issued on the grounds of unsuitability. The applicant was discharged, and filed an application for review.

The application was allowed, as the probationary review officer was held to have unreasonably used an unsuitability finding in place of a disciplinary sanction, depriving the applicant of procedural protections and fairness in the form of a disciplinary hearing. Judge Heneghan held that the process conflated incidents involving a failure to perform duties with incidents demonstrating dishonesty and lack of integrity, and that the review officer erred in concluding that unsuitability involved more than performance.

Judge Heneghan held that the applicant had a legitimate expectation that his misconduct would be disciplined under Part IV of the Act and that he had a legitimate expectation that procedural protections available under Part IV of the Act would be available to him. Judge Heneghan also noted that, while it would have been appropriate to have concurrent proceedings with respect to an investigation of Code of Conduct violations under Part IV and Part V of the Act, the Act does not allow the RCMP to improperly use unsuitability finding as a disguise for disciplinary sanction.

As the remedy of reinstatement was not available, Judge Heneghan held that the appropriate remedy was to quash the review officer’s decision and remit the matter for redetermination.

This case was digested by JoAnne Barnum of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at jbarnum@harpergrey.com or review her biography at http://www.harpergrey.com.