McDonald v. Anishinabek Police Service PDF

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] Administrative Law in Context: Chapter 3: McDonald (edited) 1 McDonald v. Anishinabe...

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] Administrative Law in Context: Chapter 3: McDonald (edited) 1 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. 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 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. 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. 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. 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. 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, Administrative Law in Context: Chapter 3: McDonald (edited) 2 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 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. 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. 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 Na- Administrative Law in Context: Chapter 3: McDonald (edited) 3 tions 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 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. 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. 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 Administrative Law in Context: Chapter 3: McDonald (edited) 4 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. 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 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. 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. [ … ] 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 Administrative Law in Context: Chapter 3: McDonald (edited) 5 that a grievance under the Labour Code could only be brought at the conclusion of such a hearing process.] [ … ] 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. 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. 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. The Police Services Act [The Court analyzes the division of responsibility between the APS Police Chief, who has the power to hire and fire police officers for the APS police force, and the Commissioner of the Ontario Provincial Police, who has the power to appoint and terminate individuals to and from the status of “First Nations Constable” under the Police Services Act. Note that the discussion below focuses on the actions of the APS Police Chief, as the individual who terminated the applicant’s employment. Unlike the Commissioner of the Ontario Provincial Police, the APS Police Chief is not charged with administering a statutory disciplinary procedure. The issue, effectively, is whether the Police Chief’s actions are “public enough” to permit judicial review.] [ … ] We therefore turn to the larger question of the scope of certiorari. The case was largely argued on the basis that there had to be a statutory power of decision involved before the court could intervene and none existed: the Chief's power to hire and fire was derived from contract and not from statute. The foregoing analysis focused on this approach, but in our view, this court's jurisdiction is not so confined as that. Section 2(1) of the JRPA provides: 2(1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: 1. 2. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. Administrative Law in Context: Chapter 3: McDonald (edited) 6 On a plain reading of the JRPA, where an injunction or a declaration is sought, judicial review must relate to a statutory power. However, where the order sought is in the nature of mandamus, prohibition or certiorari, the exercise of a statutory power is not required. The purpose of requiring a "statutory power" as a prerequisite to relief in the form of a declaration or injunction is to restrict the JRPA's application to only the public, and not the private, law uses of these remedies. However, as the prerogative writs are only available as public law remedies, no such limitation is required. While early interpretations of s. 2(1)1 of the JRPA may have read in the requirement of a "statutory power" as a prerequisite to relief in the nature of mandamus, prohibition or certiorari, subsequent cases have rejected this interpretation. Rather, the prerogative writs are available where a public decision-maker owes a duty of fairness. […] Thus, in our view, the availability of the prerogative writs is not circumscribed by the JRPA and the Divisional Court's jurisdiction to issue such relief is determined by the scope of the prerogative writs at common law. The Evolving Nature of the Prerogative Writs The scope of the prerogative writs has never been well defined and has evolved to meet the ever-changing nature of the administrative state. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. The evolution of the prerogative writs was discussed by Dickson J. for the minority, in Martineau v. Matsqui Institution. He noted the adaptable nature of certiorari, stating [at p. 616 S.C.R.]: [c]ertiorari evolved as a flexible remedy, affording access to judicial supervision in new and changing situations... Nor has perception of certiorari as an adaptable remedy been in any way modified. The amplitude of the writ has been affirmed time and again. The Review of Boards or Bodies not Constituted under Statute The seminal decision on the court's supervisory jurisdiction over a board or body not constituted under statute is R. v. Criminal Injuries Compensation Board, Ex p. Lain. In this case, review was sought of a decision of a board established, not by statute, but pursuant to the prerogative powers of the executive branch of government. Lord Parker C.J. was of the view that certiorari applies to every body of a public, as opposed to private, character that has a duty to act judicially. Diplock L.J. held that the court's supervisory jurisdiction was not dependent on the source of the tribunal's authority, except where the source was a private agreement of the parties. Where novel tribunals are established by acts of government, the supervisory jurisdiction of the High Court extends to them if they possess the essential characteristics upon which the subjection of inferior tribunals to the supervisory jurisdiction of the High Court is based. Ashworth J. was of the view that the board had sufficient public or official character to negate the notion that the board was a private or domestic tribunal, as the board was established by the Administrative Law in Context: Chapter 3: McDonald (edited) 7 executive after debates in Parliament and the board was funded by the government. Ashworth J. continued to state that: [i]t is a truism to say that the law has to adjust itself to meet changing circumstances and although a tribunal, constituted as the board, has not been the subject of consideration or decision by this court in relation to an order of certiorari, I do not think that this court should shrink from entertaining this application merely because the board had no statutory origin. It cannot be suggested that the board had unlawfully usurped jurisdiction: it acts with lawful authority, albeit such authority is derived from the executive and not from an Act of Parliament. The panel concluded that the scope of judicial review was not limited to boards or bodies constituted under statute and extends to bodies established by the exercise of prerogative power. The Review of Decisions Made Pursuant to Prerogative Powers Crown prerogative is "the residue of discretionary or arbitrary authority, which at any given time is left in the hands of the Crown". It consists of "the powers and privileges accorded by the common law to the Crown". The court's jurisdiction to review decisions made pursuant to prerogative powers was affirmed by the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service, where the House emphasized that the controlling consideration in determining whether the exercise of a prerogative power is judicially reviewable is its subject matter, not its source, and the exercise of the prerogative will be amenable to the judicial process if it affects the rights of individuals. Similarly, in Black v. Canada (Prime Minister), Laskin J.A. stated that the expanding scope of judicial review made it no longer tenable to insulate the exercise of a prerogative power from judicial review merely because the power was not a statutory power. Laskin J.A. affirmed the test set out by the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service, supra, and held that [at para. 51]: the exercise of the prerogative will be justiciable, or amenable to the judicial process, if its subject matter affects the rights or legitimate expectations of an individual. Where the rights or legitimate expectations of an individual are affected, the court is both competent and qualified to judicially review the exercise of the prerogative. Thus, the prerogative writs are not limited in their application to boards or tribunals constituted under statute and may be applied to bodies constituted pursuant to prerogative powers, if the decision in question affects the rights or legitimate expectations of an individual. In this case, the decision to dismiss Mr. McDonald is a decision that directly affects a specific individual's rights and is therefore a decision that is justiciable. Thus, if the APS was established pursuant to a prerogative power, its actions are reviewable by the Divisional Court. [ … ] [The Court notes that some commentators are of the “narrow view” that prerogative powers consist only of powers that are unique to the Crown and do not include powers that are equally enjoyed by private persons, such as the power to enter into contracts, while other commentators take a “broad view.” The Court finds that under either view, the Crown would have been exercising Royal prerogative powers when it created the APS.] Administrative Law in Context: Chapter 3: McDonald (edited) 8 The Review of Other Non-Statutory Tribunals Even if the APS is not a body constituted pursuant to prerogative powers, the prerogative writs are available as a general remedy for supervision of the machinery of government: [c]ertiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers. The court's jurisdiction to review bodies that, while not established by statute or prerogative power, fulfill a public function is perhaps best illustrated in R. v. Panel on Take-overs and Mergers; Ex Parte Datafin plc. In this case, the applicant sought to quash a decision of the Panel on Takeovers and Mergers, an unincorporated association that had no statutory, prerogative or common law powers but which nevertheless enforced a non-statutory code on take-overs and mergers. Relying heavily on R. v. Criminal Injuries Compensation Board, supra, the English Court of Appeal held that the Panel operated as an integral part of a system that performed public law duties and was therefore amenable to judicial review. Lloyd L.J. rejected the argument "that the sole test whether a body is subject to judicial review is the source of its power", because to so hold would "impose an artificial limit on the developing law of judicial review". Rather, he held that the courts must look at the nature of the body. If the body is fulfilling a public law function, then the body in question is subject to judicial review: I do not agree that the source of the power is the sole test whether a body is subject to judicial review... Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review:... But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may... be sufficient to bring the body within the reach of judicial review. It may be said that to refer to "public law" in this context is to beg the question. But I do not think it does. The essential distinction, which runs through all the cases to which we were referred, is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other. The principles in R. v. Panel on Take-overs and Mergers, supra, have been applied in Canada in Volker Stevin N.W.T. (1992) Ltd. v. Northwest Territories (Commissioner), in Masters v. Ontario and recently in Scheerer v. Waldbillig, where the Divisional Court stated: The only constant limit on the remedy [certiorari] is that it must be with regard to the performance of a public duty. If the source of a power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial reAdministrative Law in Context: Chapter 3: McDonald (edited) 9 view. This is not necessarily the case if the source of the power is contractual. The essential distinction is between a domestic or private tribunal, on the one hand, and a body of persons under some public duty on the other. In Masters v. Ontario, supra, Saunders J. had before him an application of a senior civil servant to quash, on grounds of lack of procedural fairness, investigative reports made into his conduct following a complaint of sexual harassment. The investigation was conducted pursuant to a policy directive dealing with workplace discrimination and harassment prevention. The directive had no statutory basis. Relying on Martineau v. Matsqui Institution, supra, and R. v. Panel on Takeovers and Mergers, supra, Saunders J. found that the applicant was entitled to procedural fairness and refused to quash the application for certiorari. While not bound by any statutory duty, the investigators making the report were part of the machinery of government and owed a duty of fairness. Thus, in my view, in determining whether a body is subject to judicial review, the court must look, not only at the source of the power, but the nature of body's functions. Even where the body is not constituted under statute, or prerogative power, if the body is fulfilling a governmental function, then the body is part of the machinery of government and is subject to public law. However, the court must be cautious to distinguish between domestic tribunals -- private autonomous bodies such as consensual arbitrators and voluntary associations -- on the one hand, and the machinery of government, on the other. Various factors can be used to distinguish domestic tribunals from public bodies, including: - The source of the board’s powers; - The functions and duties of the body; - Whether government action has created the body, or whether, but for the body, the government would directly occupy the area, such that there is an implied devolution of power; - The extent of the government's direct or indirect control over the body; - Whether the body has power over the public at large, or only those persons who consensually submit to its jurisdiction; - The nature of the body's members and how they are appointed; - How the board is funded; - The nature of the board's decisions -- does it seriously affect individual rights and interests; - Whether the body's constituting documents, or its procedures, indicate that a duty of fairness is owed; and - The body's relationship to other statutory schemes or other parts of government, such that the body is woven into the network of government. Applying these criteria to the APS, it is difficult to imagine a function that is more public in nature than the enforcement of the laws of Ontario and Canada. Although incorporated as a nonAdministrative Law in Context: Chapter 3: McDonald (edited) 10 profit corporation, the APS was created by government action through the Tripartite Agreement and, but for the Agreement, the Government would directly occupy the area through either the RCMP or the OPP. The source of the power exercised by the APS is entirely public. Its constables derive their police powers from a statutory appointment by the Commissioner. It exercises this power without the need for consent from those affected and can seriously affect the rights of citizens and police alike. As First Nations Constables, APS police officers exercise the powers of police officers across the province. It is funded by Ontario and Canada with public funds. We conclude that it is a public body fulfilling a governmental function as part of the machinery of government and is therefore subject to judicial review. The APS decision to terminate Mr. McDonald's employment is an administrative and specific decision that affects his individual rights and interests. [ … ] [The Court goes on to determine that, because the applicant was is a public officer and not a mere employee, he was owed a duty of fairness. Because the Police Chief dismissed the applicant before he had an opportunity to know the case against him and to respond, that duty of fairness was not met. The Court granted his application for certiorari, and quashed the decisions to dismiss him and to terminate his status as a First Nations Constable.] Administrative Law in Context: Chapter 3: McDonald (edited) 11 CASE BRIEF Facts: 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. Issue: 1. Whether the Police Chief had statutory authority to discharge Mr. McDonald. 2. Was there procedural fairness and natural justice in the dismissal of Mr. McDonald? 3. Is Mr. McDonald entitled to reinstatement and payment of his wages from the date of his termination? 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. 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. 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. 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 Administrative Law in Context: Chapter 3: McDonald (edited) 12 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. 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 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. 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. Administrative Law in Context: Chapter 3: McDonald (edited) 13 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 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. 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. 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;..... Administrative Law in Context: Chapter 3: McDonald (edited) 14 (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. 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 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. 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. [ … ] 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. [ … ] Administrative Law in Context: Chapter 3: McDonald (edited) 15 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.] [ … ] 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. 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. 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. The Police Services Act [The Court analyzes the division of responsibility between the APS Police Chief, who has the power to hire and fire police officers for the APS police force, and the Commissioner of the Ontario Provincial Police, who has the power to appoint and terminate individuals to and from the status of “First Nations Constable” under the Police Services Act. Note that the discussion below focuses on the actions of the APS Police Chief, as the individual who terminated the applicant’s employment. Unlike the Commissioner of the Ontario Provincial Police, the APS Police Chief is not charged with administering a statutory disciplinary procedure. The issue, effectively, is whether the Police Chief’s actions are “public enough” to permit judicial review.] [ … ] We therefore turn to the larger question of the scope of certiorari. The case was largely argued on the basis that there had to be a statutory power of decision involved before the court could intervene and none existed: the Chief's power to hire and fire was derived from contract and not from statute. The foregoing analysis focused on this approach, but in our view, this court's jurisdiction is not so confined as that. Section 2(1) of the JRPA provides: 2(1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: Administrative Law in Context: Chapter 3: McDonald (edited) 16 1. 2. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. On a plain reading of the JRPA, where an injunction or a declaration is sought, judicial review must relate to a statutory power. However, where the order sought is in the nature of mandamus, prohibition or certiorari, the exercise of a statutory power is not required. The purpose of requiring a "statutory power" as a prerequisite to relief in the form of a declaration or injunction is to restrict the JRPA's application to only the public, and not the private, law uses of these remedies. However, as the prerogative writs are only available as public law remedies, no such limitation is required. While early interpretations of s. 2(1)1 of the JRPA may have read in the requirement of a "statutory power" as a prerequisite to relief in the nature of mandamus, prohibition or certiorari, subsequent cases have rejected this interpretation. Rather, the prerogative writs are available where a public decision-maker owes a duty of fairness. […] Thus, in our view, the availability of the prerogative writs is not circumscribed by the JRPA and the Divisional Court's jurisdiction to issue such relief is determined by the scope of the prerogative writs at common law. The Evolving Nature of the Prerogative Writs The scope of the prerogative writs has never been well defined and has evolved to meet the ever-changing nature of the administrative state. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. The evolution of the prerogative writs was discussed by Dickson J. for the minority, in Martineau v. Matsqui Institution. He noted the adaptable nature of certiorari, stating [at p. 616 S.C.R.]: [c]ertiorari evolved as a flexible remedy, affording access to judicial supervision in new and changing situations... Nor has perception of certiorari as an adaptable remedy been in any way modified. The amplitude of the writ has been affirmed time and again. The Review of Boards or Bodies not Constituted under Statute The seminal decision on the court's supervisory jurisdiction over a board or body not constituted under statute is R. v. Criminal Injuries Compensation Board, Ex p. Lain. In this case, review was sought of a decision of a board established, not by statute, but pursuant to the prerogative powers of the executive branch of government. Lord Parker C.J. was of the view that certiorari applies to every body of a public, as opposed to private, character that has a duty to act judicially. Diplock L.J. held that the court's supervisory jurisdiction was not dependent on the source of the tribunal's authority, except where the source was a private agreement of the parties. Where novel tribunals are established by acts of government, the supervisory jurisdiction of the High Court extends to them if Administrative Law in Context: Chapter 3: McDonald (edited) 17 they possess the essential characteristics upon which the subjection of inferior tribunals to the supervisory jurisdiction of the High Court is based. Ashworth J. was of the view that the board had sufficient public or official character to negate the notion that the board was a private or domestic tribunal, as the board was established by the executive after debates in Parliament and the board was funded by the government. Ashworth J. continued to state that: [i]t is a truism to say that the law has to adjust itself to meet changing circumstances and although a tribunal, constituted as the board, has not been the subject of consideration or decision by this court in relation to an order of certiorari, I do not think that this court should shrink from entertaining this application merely because the board had no statutory origin. It cannot be suggested that the board had unlawfully usurped jurisdiction: it acts with lawful authority, albeit such authority is derived from the executive and not from an Act of Parliament. The panel concluded that the scope of judicial review was not limited to boards or bodies constituted under statute and extends to bodies established by the exercise of prerogative power. The Review of Decisions Made Pursuant to Prerogative Powers Crown prerogative is "the residue of discretionary or arbitrary authority, which at any given time is left in the hands of the Crown". It consists of "the powers and privileges accorded by the common law to the Crown". The court's jurisdiction to review decisions made pursuant to prerogative powers was affirmed by the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service, where the House emphasized that the controlling consideration in determining whether the exercise of a prerogative power is judicially reviewable is its subject matter, not its source, and the exercise of the prerogative will be amenable to the judicial process if it affects the rights of individuals. Similarly, in Black v. Canada (Prime Minister), Laskin J.A. stated that the expanding scope of judicial review made it no longer tenable to insulate the exercise of a prerogative power from judicial review merely because the power was not a statutory power. Laskin J.A. affirmed the test set out by the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service, supra, and held that [at para. 51]: the exercise of the prerogative will be justiciable, or amenable to the judicial process, if its subject matter affects the rights or legitimate expectations of an individual. Where the rights or legitimate expectations of an individual are affected, the court is both competent and qualified to judicially review the exercise of the prerogative. Thus, the prerogative writs are not limited in their application to boards or tribunals constituted under statute and may be applied to bodies constituted pursuant to prerogative powers, if the decision in question affects the rights or legitimate expectations of an individual. In this case, the decision to dismiss Mr. McDonald is a decision that directly affects a specific individual's rights and is therefore a decision that is justiciable. Thus, if the APS was established pursuant to a prerogative power, its actions are reviewable by the Divisional Court. [ … ] Administrative Law in Context: Chapter 3: McDonald (edited) 18 [The Court notes that some commentators are of the “narrow view” that prerogative powers consist only of powers that are unique to the Crown and do not include powers that are equally enjoyed by private persons, such as the power to enter into contracts, while other commentators take a “broad view.” The Court finds that under either view, the Crown would have been exercising Royal prerogative powers when it created the APS.] The Review of Other Non-Statutory Tribunals Even if the APS is not a body constituted pursuant to prerogative powers, the prerogative writs are available as a general remedy for supervision of the machinery of government: [c]ertiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers. The court's jurisdiction to review bodies that, while not established by statute or prerogative power, fulfill a public function is perhaps best illustrated in R. v. Panel on Take-overs and Mergers; Ex Parte Datafin plc. In this case, the applicant sought to quash a decision of the Panel on Takeovers and Mergers, an unincorporated association that had no statutory, prerogative or common law powers but which nevertheless enforced a non-statutory code on take-overs and mergers. Relying heavily on R. v. Criminal Injuries Compensation Board, supra, the English Court of Appeal held that the Panel operated as an integral part of a system that performed public law duties and was therefore amenable to judicial review. Lloyd L.J. rejected the argument "that the sole test whether a body is subject to judicial review is the source of its power", because to so hold would "impose an artificial limit on the developing law of judicial review". Rather, he held that the courts must look at the nature of the body. If the body is fulfilling a public law function, then the body in question is subject to judicial review: I do not agree that the source of the power is the sole test whether a body is subject to judicial review... Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review:... But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may... be sufficient to bring the body within the reach of judicial review. It may be said that to refer to "public law" in this context is to beg the question. But I do not think it does. The essential distinction, which runs through all the cases to which we were referred, is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other. Administrative Law in Context: Chapter 3: McDonald (edited) 19 The principles in R. v. Panel on Take-overs and Mergers, supra, have been applied in Canada in Volker Stevin N.W.T. (1992) Ltd. v. Northwest Territories (Commissioner), in Masters v. Ontario and recently in Scheerer v. Waldbillig, where the Divisional Court stated: The only constant limit on the remedy [certiorari] is that it must be with regard to the performance of a public duty. If the source of a power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. This is not necessarily the case if the source of the power is contractual. The essential distinction is between a domestic or private tribunal, on the one hand, and a body of persons under some public duty on the other. In Masters v. Ontario, supra, Saunders J. had before him an application of a senior civil servant to quash, on grounds of lack of procedural fairness, investigative reports made into his conduct following a complaint of sexual harassment. The investigation was conducted pursuant to a policy directive dealing with workplace discrimination and harassment prevention. The directive had no statutory basis. Relying on Martineau v. Matsqui Institution, supra, and R. v. Panel on Takeovers and Mergers, supra, Saunders J. found that the applicant was entitled to procedural fairness and refused to quash the application for certiorari. While not bound by any statutory duty, the investigators making the report were part of the machinery of government and owed a duty of fairness. Thus, in my view, in determining whether a body is subject to judicial review, the court must look, not only at the source of the power, but the nature of body's functions. Even where the body is not constituted under statute, or prerogative power, if the body is fulfilling a governmental function, then the body is part of the machinery of government and is subject to public law. However, the court must be cautious to distinguish between domestic tribunals -- private autonomous bodies such as consensual arbitrators and voluntary associations -- on the one hand, and the machinery of government, on the other. Various factors can be used to distinguish domestic tribunals from public bodies, including: - The source of the board’s powers; - The functions and duties of the body; - Whether government action has created the body, or whether, but for the body, the government would directly occupy the area, such that there is an implied devolution of power; - The extent of the government's direct or indirect control over the body; - Whether the body has power over the public at large, or only those persons who consensually submit to its jurisdiction; - The nature of the body's members and how they are appointed; - How the board is funded; - The nature of the board's decisions -- does it seriously affect individual rights and interests; Administrative Law in Context: Chapter 3: McDonald (edited) 20 - Whether the body's constituting documents, or its procedures, indicate that a duty of fairness is owed; and - The body's relationship to other statutory schemes or other parts of government, such that the body is woven into the network of government. Applying these criteria to the APS, it is difficult to imagine a function that is more public in nature than the enforcement of the laws of Ontario and Canada. Although incorporated as a nonprofit corporation, the APS was created by government action through the Tripartite Agreement and, but for the Agreement, the Government would directly occupy the area through either the RCMP or the OPP. The source of the power exercised by the APS is entirely public. Its constables derive their police powers from a statutory appointment by the Commissioner. It exercises this power without the need for consent from those affected and can seriously affect the rights of citizens and police alike. As First Nations Constables, APS police officers exercise the powers of police officers across the province. It is funded by Ontario and Canada with public funds. We conclude that it is a public body fulfilling a governmental function as part of the machinery of government and is therefore subject to judicial review. The APS decision to terminate Mr. McDonald's employment is an administrative and specific decision that affects his individual rights and interests. [ … ] [The Court goes on to determine that, because the applicant was is a public officer and not a mere employee, he was owed a duty of fairness. Because the Police Chief dismissed the applicant before he had an opportunity to know the case against him and to respond, that duty of fairness was not met. The Court granted his application for certiorari, and quashed the decisions to dismiss him and to terminate his status as a First Nations Constable.] Administrative Law in Context: Chapter 3: McDonald (edited) 21