A-61-77
John Danch (Applicant)
v.
Maurice J. Nadon and the Queen (Respondents)
Court of Appeal, Pratte, Urie and Le Dain JJ.—
Ottawa, September 15 and November 10, 1977.
Judicial review — Applicant given notice of recommenda
tion for dismissal from RCMP— Unsuitability — Allegations
of unsuitability made to Review Board subsequent to notice —
Appeal Board recommended dismissal without hearing or
legal counsel present — Procedure for service offences not
followed — Whether or not principles of natural justice denied
— Whether or not procedure for service offences should have
been followed — Effect of considering matters about which no
notice given — Royal Canadian Mounted Police Act, R.S.C.
1970, c. R-9, ss. 13, 21, 26, 38, 41 — Royal Canadian
Mounted Police Regulations, SOR/72-624, ss. 150, 151, 173
— Standing Orders II.13.M.1.c, II.14.C.6, II.15.C.3,11.16.F.11
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This section 28 application is brought to review and set aside
respondent Nadon's decision to dismiss applicant from the
Royal Canadian Mounted Police as unsuitable. Applicant was
served with a notice of recommendation for discharge and,
using the procedures established by the Commissioner's Stand
ing Orders, appealed in writing to a Review Board that con
sidered the case and recommended applicant's discharge.
Applicant contends the power to discipline for unsuitability was
disciplinary in nature, creating a service offence for which
procedures, other than those followed had been established by
Regulation. Further, several principles of natural justice were
not observed adequately. Lastly, applicant did not receive
adequate notice of the allegations presented to the Board upon
which the recommendation was based.
Held (Pratte J. dissenting), the application is allowed.
Per Pratte J., dissenting: The Commissioner's power to dis
miss is not qualified by any provision of the Act that subjects it
to procedural requirements similar to those provided for the
punishment of service offences. Parliament, therefore, did not
intend to subject this power to the requirements of natural
justice. Although this power to dismiss is to be exercised fairly,
it is absolute and subject only to the qualifications in the
Regulations and Standing Orders requiring notice of recom
mendation for discharge and the right of appeal in writing from
it. If those requirements are met, the exercise of the power is
valid even if the requirements of natural justice have not been
met. Even though the file submitted to the Board of Review
and to the Commissioner contained information unfavourable
to the applicant that related to incidents occurring after appli
cant's notification of recommendation for discharge, the record
does not show the Commissioner's decision was based on this
evidence. The application, accordingly, should fail.
Per Urie J.: The decision to discharge a member of the Force
is essentially administrative. While some of the complaints
could have resulted in service charges, no charges were laid and
the procedures to be followed under those circumstances do not
apply. The Act and Regulations clearly permit the procedure
adopted and require the Commissioner to act on a quasi-judi
cial basis. The submission of members of this Force to certain
restrictions on their rights precludes their entitlement to several
rights associated with natural justice, including the right to a
trial or hearing and the right to legal counsel. The limited
nature of the right to appeal, however, must not permit mani
fest unfairness such as using, in the decision-making process,
material obtained after the service of the notice without disclos
ing it, for it is then impossible to determine its effect in tipping
the scales in favour of discharge. This constitutes an error in
law.
Per Le Dain J.: Applicant's procedural rights for a discharge
are confined to those expressly provided and necessarily implied
by Regulation 151 and Standing Order II.14.C.6. The placing
of allegations before the Review Board, subsequent to appli
cant's notification, shifts the onus to the respondents to satisfy
the Court that these allegations were not taken into account by
the Board and the Commissioner, and did not in any way
influence their decision. This onus is not discharged by the
record and indeed is virtually impossible to discharge. Once
these allegations were placed before the Board the applicant
should have been given notice of them and an opportunity to
supplement his appeal in order to meet them.
Kedward v. The Queen [1976] 1 F.C. 57, applied. R. and
Archer v. White [1956] S.C.R. 154, applied. McCleery v.
The Queen [1974] 2 F.C. 339, applied.
APPLICATION for judicial review.
COUNSEL:
D. W. Scott, Q.C., and J. B. Carr-Harris for
applicant.
P. Mclnenly for respondents.
SOLICITORS:
Scott & Aylen, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
PRATTE J. (dissenting): I have read the reasons
for judgment prepared by my brother Urie. While
I share many of the views he expresses, I do not
agree with his conclusion that the application
should be allowed.
Under section 13(2) of the Royal Canadian
Mounted Police Act, R.S.C. 1970, c. R-9, "any ..
member may be dismissed or discharged by the
Commissioner at any time before the expiration of
his term of engagement." The power thus con
ferred on the Commissioner is not qualified by any
provision of the Act' which does not subject it to
any procedural requirements similar to those pro
vided for the punishment of service offences. In my
view, Parliament has thus manifested its intention
not to subject the power of discharge of the Com
missioner to the requirements of natural justice.
While it was certainly intended that the power be
exercised fairly, that power is nevertheless absolute
and subject only to the qualifications provided for
in the Regulations and Standing Orders adopted
under section 21 of the Act. 2
The Regulations and Standing Orders contain
provisions the effect of which is to ensure that a
member of the Force will not be discharged with
out having had an opportunity to be heard.' The
' The only other section of the Act which refers to discharge
or dismissal is section 38 which provides that, when a member
has been convicted of a service offence, the convicting officer
may recommend that he be dismissed from the Force.
2 Section 21 reads as follows:
21. (1) The Governor in Council may make regulations
for the organization, training, discipline, efficiency, adminis
tration and good government of the force and generally for
carrying the purposes and provisions of this Act into effect.
(2) Subject to this Act and the regulations made under
subsection (1), the Commissioner may make rules, to be
known as standing orders, for the organization, training,
discipline, efficiency, administration and good government of
the force.
These provisions are Regulation 151 and the Standing
Order contained in Article II.14.C.6 of the Administrative
Manual. They read as follows:
151. Every member shall be advised immediately of any
recommendation that is made for his discharge from the
Force.
Standing Order 11.14....
C. 6. A member who is recommended for compulsory dis
charge may appeal in writing to the Commissioner.
By virtue of those two provisions, the decision made by the
Commissioner to discharge a member is a decision that has to
Regulations and Standing Orders, however, do not
provide, in a general way, that the Commissioner's
power of discharge must be exercised quasi-judi
cially and is subject to all the rules of natural
justice. They merely impose two precise require
ments: that notice be given to a member of any
recommendation for his discharge, and that the
member be given a right of appeal in writing from
the recommendation. Those are the only two pro
cedural qualifications imposed on the exercise of
the otherwise absolute power of discharge of the
Commissioner. Provided those two requirements
are complied with, the power of dismissal is, in my
view, validly exercised in spite of the fact that all
the requirements of natural justice may not be
met.
It follows that, in my opinion, the sole real
question to be determined is whether the applicant
has received the notice contemplated by Regula
tion 151 and has been afforded the right of appeal
provided for in the Standing Orders. For the rea
sons given by Mr. Justice Urie, I consider that the
only serious argument made by the applicant on
this point relates to the fact that the file which was
submitted to the Board of Review and to the
Commissioner contained information unfavourable
to the applicant relating to incidents which had
come to light after the applicant had been notified
of the recommendation for his discharge.
In my view—and this is where I part company
with my brother Urie—this argument must fail
because the record does not show that the Com
missioner's decision was based on that informa
tion. Apart from that information, the record con
tained overwhelming evidence of the applicant's
deficiencies and showed conclusively that, in spite
of many warnings, his performance had not
improved. As Mr. Justice Urie indicates in his
reasons, the brief submitted to the Chairman of
the Appeal Board by Inspector Becker "recognized
be made on a judicial or quasi-judicial basis within the meaning
of section 28 of the Federal Court Act. At least this is the
effect of the decision of this Court in McCleery v. The Queen
[1974] 2 F.C. 339. As the jurisdiction of the Court has not
been challenged in this case, it is not necessary for me, in view
of the conclusion I reach, to consider whether our decision in
McCleery can be reconciled with the recent decision of the
Supreme Court of Canada in Martineau & Butters v. The
Matsqui Institution Inmate Disciplinary Board [1978] 1
S.C.R. 118.
the possible unfairness in making use of" the
objectionable information. In those circumstances,
I consider it very unlikely that the Board, of which
Inspector Becker was a member, did take that
information into consideration. True, the Board, in
the decision which was confirmed by the Commis
sioner, found that the applicant's performance
"continues" to be unsatisfactory; and it is this use
of the present tense which, I gather, leads my
brother Urie to the conclusion that the Board took
into consideration information relating to incidents
subsequent to the notice of recommendation. I
cannot make that inference. I concede that it
would have been grammatically more correct for
the Board to use the past tense; however, when
that passage of the decision is read in its context, it
simply expresses, in my view, the Board's finding
that, as alleged in the recommendation for his
discharge, the applicant's performance failed to
improve after he had been warned and counselled.
For those reasons, I would dismiss the
application.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: This section 28 application is brought
to review and set aside the decision of the respond
ent, Maurice J. Nadon, the then Commissioner of
the Royal Canadian Mounted Police (hereinafter
sometimes referred to as the Force), made pursu
ant to the provisions of the Royal Canadian
Mounted Police Act (hereinafter referred to as the
Act) and Regulations passed pursuant thereto, on
the 2nd day of December, 1976 and apparently
communicated to the applicant on or about the 7th
day of December, 1976, dismissing the applicant
from the Force as unsuitable.
Briefly the facts are these. The applicant joined
the Force in March of 1955, so that at the time of
his discharge he had been a member for approxi
mately twenty-one years and seven months. From
the material in evidence it is clear that generally
his service in the Force was satisfactory during the
period from his engagement in 1955 until about
1972, although from time to time he had had to be
counselled and warned in respect of his procrasti
nation and tardiness in carrying out his duties and
his lack of administrative and organizational abili
ties. His Performance Rating and Reviews seem to
indicate that his forte was in the public relations
aspects of his duties and, as well, it seems that he
was a reasonably good investigator and a knowl
edgeable police officer.
However, in early 1973 his Performance Rating
and Review indicated that the applicant had a
"definite failing in some areas of our administra
tive duties". Moreover, he was found to have been
repeatedly late in the submission of returns and in
documenting routine financial matters. As a result,
in March 1973, he received an "Official Warning"
in writing pursuant to what are known as the
Commissioner's Standing Orders, following an
appearance before the officer commanding his
subdivision. The applicant acknowledged the
Warning by his signature affixed thereto.
He again received an Official Warning in July
1973 for his "persistent inefficiency" in the
manner in which he carried out his duties. His past
poor administrative practices were referred to in
the Warning as well as a specific incident of recent
origin relating to his failure to properly account
for certain "voluntary penalties" received by him
in the course of his duties as a Detachment Com
mander. Again, Cpl. Danch acknowledged, by his
signature, receipt of the Warning.
Other incidents, the evidence discloses, occurred
during 1973, 1974 and 1975 which indicated that
the applicant had not improved in the performance
of his duties particularly in the administrative area
with the result that in July 1975 he was officially
warned again. Contained in the Official Warning
was the following:
Therefore, in view of the fact you appear to have ignored
your previous disciplinary measures, I must point out to you in
the strongest terms that your poor performance of current
duties and lackadaisical initiative approach will not be tolerated
and requires an immediate and sustained improvement or a
recommendation for your discharge as unsuitable will be made.
Cpl. Danch, pursuant to the applicable Commis
sioner's Standing Orders, appealed this Warning
and a Review Board held that the Official Warn
ing was valid but made certain recommendations
to which I do not think it necessary to refer for
purposes of these reasons.
In 1976, progress reports and Performance
Rating Reviews indicated no improvement in the
applicant's overall performance due to his lack of
organizational abilities, procrastination, failure to
delegate and general administrative deficiencies.
After a considerable number of investigations and
reports during 1976, in which the applicant's good
qualities as a police officer received recognition as
did the areas in which he was best suited for
employment in the Force, a Notice of Recommen
dation for discharge as unsuitable, and the reasons
therefor, was made by the assistant officer com
manding his subdivision and was served on the
applicant on October 13, 1976 in a hospital to
which he had been admitted that day for surgery.
Cpl. Danch then utilized the appeal procedures
available to him by virtue of the Commissioner's
Standing Orders. A Review Board which stated in
its report that it had "carefully examined the
service and personnel files, progress reports, Sec
tion N.C.O. reports, the recommendation for dis
charge and appeal" unanimously found that:
(1) Administrative procedures were followed correctly.
(2) Cpl. DANCH has a long history of procrastination, lack of
initiative and failure to carry out necessary administrative
functions in connection with his duties.
(3) Cpl. DANCH has been officially warned on 4 occasions from
1959 to 1975 for inattentiveness, neglect to properly discharge
administrative responsibilities, persistent inefficiency and for
continued lack of initiative and poor performance.
(4) He has been counselled on numerous occasions by his
superiors concerning his performance.
(5) His performance continues to be unsatisfactory.
(6) Cpl. DANCH has proven himself unsuitable for duties in the
Force.
RECOMMENDATIONS
The recommendations of the Board are that:
(1) Cpl. DANCH'S appeal be denied.
(2) Cpl. DANCH be discharged as unsuitable under Regulation
173.
This report was confirmed by Commissioner
Nadon on December 2, 1976. It is not clear from
the record that there was any formal order from
the Commissioner directing the discharge, but, in
any event, it is from the Commissioner's decision,
whenever it was formally communicated to the
applicant, that this section 28 application is
brought.
Counsel for the applicant attacks the decision
essentially on three grounds.
Firstly, it is alleged that the power to discharge
for unsuitability is clearly disciplinary in nature.
Since this is so a service offence is, in effect,
created. The procedures to be followed in discipli
nary matters are set out in Part II of the Act and
those procedures are incorporated in respect of
service offences created by regulation, by virtue of
section 26 of the Act. It was said that those
procedures were not followed by the respondent
Nadon in his determination that the applicant was
unsuitable for purposes of section 173 of the Regu
lations promulgated pursuant to the Act. Instead,
it was submitted, he followed Commissioner's Pro
cedural Directives which are inconsistent with the
procedures required to be followed for service
offences. Thus, the discharge of the applicant for
unsuitability is invalid.
The relevant sections of the Act, the Regula
tions and the Commissioner's Procedural Direc
tives read as follows:
13. (1) Officers of the force hold office during the pleasure
of the Governor in Council.
(2) Unless appointed for temporary duty, every member
other than an officer shall upon appointment sign articles of
engagement for a term of service not exceeding five years, but
any such member may be dismissed or discharged by the
Commissioner at any time before the expiration of his term of
engagement.
26. Every member who violates or fails to comply with any
standing order of the Commissioner or any regulation made
under the authority of Part I is guilty of an offence, to be
known as a minor service offence, and is liable to trial and
punishment as prescribed in this Part.
Thereafter in Part II follow sections prescribing
methods of arrest, custody, service tribunals, form
of charge and how laid, trial and punishment.
Section 38 empowers a convicting officer, if he
sees fit, to recommend that the convicted member
be dismissed from the Force. Section 41 describes
how the member may appeal his conviction and
sections 42 to 45 provide for the method of disposi
tion of such appeals.
Section 21 is the section authorizing the making
of regulations and standing orders. 4 Sections 150,
151 and 173 are the pertinent regulations in this
case and they read as follows:
150. A member, other than an officer, may be discharged
from the Force for any of the following reasons:
(a) invaliding;
(b) unsuitability;
(c) deceased;
(d) desertion;
(e) dismissal;
(/) order of the Minister due to the exigencies of service;
(g) change of status;
(h) age limit;
(i) completion of maximum period of service;
(j) resignation; or
(k) voluntary retirement.
151. Every member shall be advised immediately of any
recommendation that is made for his discharge from the Force.
173. The Commissioner may recommend the discharge of an
officer and may discharge a member other than an officer who
has proved to be unsuitable for duties in the Force.
Supplementing the aforementioned Regulations
are the Commissioner's Standing Orders. All such
Standing Orders are contained in an Administra
tion Manual. That manual also contains proce
dural directives addressed both to officers and
members outlining the procedures to be used by
them in implementing the Act, Regulations and
4 21. (1) The Governor in Council may make regulations for
the organization, training, discipline, efficiency, administration
and good government of the force and generally for carrying
the purposes and provisions of this Act into effect.
(2) Subject to this Act and the regulations made under
subsection (1), the Commissioner may make rules to be known
as standing orders, for the organization, training, discipline,
efficiency, administration and good government of the force.
Standing Orders. Article II.14 deals with the dis
charge of a member from the Force and II.14.C.6
is a Standing Order which states that:
A member who is recommended for compulsory discharge may
appeal in writing to the Commissioner.
To support his contention that a compulsory
discharge under the Regulations is disciplinary in
nature, counsel for the applicant invokes the aid of
Article II.13 which deals with the handling of
complaints and discipline of members. There is no
Commissioner's Standing Order contained therein
to support his contention but Article II.13.M., in
his submission, does. It is a procedural directive
headed "Appeals (see section 41 to 44 of the R. C.
M. P. Act, and R. C. M. P. Regulations 82, 85 and
87)".
Article II.13.M.1.c. reads:
Compulsory Discharges
1. If you feel dissatisfied by a recommendation for your dis
charge, follow the procedures shown in Appendix 1I.13.6
page 2.
1. Make your appeal in writing giving details of the grounds
for appeal and supporting data within four days after receiv
ing notification of the recommendation, or within four days
of receipt of the transcript, if the recommendation is made
pursuant to Section 38, of the R.C.M.P. Act.
This is the section outlining how a member
proceeds with the right to appeal accorded him by
Article II.14.C.6. which right the applicant exer
cised. According to counsel, its juxtaposition in the
Article dealing with discipline clearly indicates
that a compulsory discharge for unsuitability is
disciplinary in nature and thus ought to be dealt
with as a service offence under Part II of the Act.
That it was not so dealt with, in his submission,
invalidates the Commissioner's decision.
The characterization of the recommendation for
discharge must be derived from the Act, and the
Regulations and Standing Orders promulgated
pursuant thereto. While the procedural directives
may be of some peripheral interest, they do not
have the force of law. Sections 25 and 26 of the
Act describe major and minor service offences
respectively. Some of the complaints made against
Cpl. Danch might have resulted in charges under
section 26. However, no charges were in fact laid
against him and thus the procedures that would
have had to have been followed if Cpl. Danch had
been charged have no application in this case.
Article II.13.M.1.c., is simply a direction to a
member as to how to implement his right of appeal
from a recommendation for discharge. It cannot
convert a non-disciplinary discharge into a discipli
nary one of the type envisaged as a penalty, after
trial, under section 38 of the Act. Section 13(2)
and Regulations 150 and 173 clearly permit the
procedure adopted in this case.
In Kedward y. The Queen, 5 Thurlow J., in
response to the argument that the appellant was
entitled to be charged and tried under the discipli
nary provisions of the Act for refusal to accept a
transfer, dealt with that submission in a way
which, in my view, applies with equal force to this
case notwithstanding that there was nothing in the
nature of an issue or lis requiring a decision in the
Kedward case while, arguably, there might be an
issue or lis in this case. He said:
Assuming that the appellant's refusal amounted to a service
offence for which he might have been disciplined we do not
think he had any right to require that he be prosecuted or that
a prosecution is a necessary preliminary to a recommendation
for discharge. Nor do we think that upon the conclusion of such
a prosecution, if there had been one, the appellant would have
been rendered immune from discharge on the ground of his
unsuitability. There is, in our view, no merit in the appellant's
contention.
The applicant's second ground of attack is that
the respondent Nadon failed to observe, or ade
quately to observe, the rules of natural justice on
several grounds. In respect thereto it is common
ground that the Regulations and Standing Orders
impose on the Commissioner a duty to act on a
recommendation to discharge a member for
unsuitability on at least a quasi-judicial basis. 6 As
a result, firstly, in the view of counsel, in a case
such as this, the applicant was entitled to an oral
hearing because the decision to discharge him
adversely affected his right to earn a livelihood, his
pension rights and his reputation. In Kedward v.
The Queen (supra) it was held by this Court that
there was no entitlement either to a formal trial or
to an oral hearing on the question of suitability.
5 [1976] 1 F.C. 57 at p. 59.
6 See McCleery v. The Queen [1974] 2 F.C. 339.
Counsel sought to distinguish that case on the
basis that here, as he says in his memorandum of
fact and law, "there was and is a vigorous dispute
as to the factual basis for the determination of the
Applicant's suitability." There was no such dis
pute, or lis, in the Kedward case. The appellant
had refused and continued to refuse a transfer.
This was undisputed. There was, thus, no lis and
there was, therefore, no need for a hearing.
In my opinion this is not a valid distinction. The
Force is para -military in nature. That characteris
tic necessitates that its members submit them
selves to certain restrictions on some of the rights
to which, outside the Force they might be entitled.
In The Queen and Archer v. White,' Rand J., in
speaking of these restrictions and of the duties and
responsibilities on members of the Force said:
These terms are essential elements of a status voluntarily
entered into which affect what, by the general law, are civil
rights, that is, action and behaviour which is not forbidden him
as a citizen.
Again at page 159 he said:
Parliament has specified the punishable breaches of disci
pline and has equipped the Force with its own courts for
dealing with them and it needs no amplification to demonstrate
the object of that investment. Such a code is prima facie to be
looked upon as being the exclusive means by which this particu
lar purpose is to be attained. Unless, therefore, the powers
given are abused to such a degree as puts action taken beyond
the purview of the statute or unless the action is itself unau
thorized, that internal management is not to be interfered with
by any superior court in exercise of its long established supervi
sory jurisdiction over inferior tribunals.
While Mr. Justice Rand was speaking of punish
ment for offences, the language he used applies a
fortiori in respect of another aspect of internal
management viz. the right to discharge a member
because of unsuitability for continued service.
Moreover, they continue to be applicable notwith
standing the fact that the Act has been changed
substantially since that judgment. The overall
necessity for a military or para -military organiza-
' [1956] S.C.R. 154 at 158.
tion to act without recognition of some of the
rights which might be available in another kind of
organization has never changed. For these reasons,
in my opinion the decision of this Court in the
Kedward case that there is no right to an oral
hearing in matters of this kind cannot validly be
distinguished by the factual context in this case.
For the same reasons the applicant does not
have, in circumstances such as these, a right to
legal counsel. The procedural directives permit
him to avail himself of the services of a staff
relations person to assist in the preparation of the
appeal but that is the extent of the assistance to
which, in my view, he has any right. The applicant
chose not to procure such assistance in preparing
his appeal. Since he has no such right it logically
follows, I think, that he is not entitled to cross-
examine anyone or to call viva voce evidence or to
make submission in mitigation of sentence, as was
urged by applicant's counsel. His rights are
encompassed in the Regulations and Standing
Orders. So long as they have been applied fairly he
cannot be heard to say that the rules of natural
justice have not been observed.
However, it is said as a third ground of attack
that they were not applied fairly in that the appli
cant did not receive notice or adequate notice with
respect to the allegations upon which the recom
mendation for discharge as unsuitable was based
thereby rendering meaningless the right of appeal
provided by Article II.14.C.6. of the Commission
er's Standing Orders.
The Notice of Recommendation for Discharge
seems to refer only to incidents in the applicant's
career after 1972. The applicant complains that
the material before the Review Board and the
Commissioner contains additional references to
incidents in three different time frames:
(a) allegations in his records in respect of his
performance prior to 1972;
(b) allegations in the "service profile" (which is
a résumé of the whole of the applicant's service
file, and which was submitted to the Review Board
and to the Commissioner), refers to matters
included in the service file which occurred within
the period 1972 to October 1976 that were not
mentioned in the Notice of Recommendation for
Discharge;
(c) allegations of administrative inefficiency
contained in the service profile and other docu
ments which, although having occurred in the
1972 to 1976 period, had never been mentioned in
any records until after the applicant had been
served with the Notice of Recommendation for
Discharge.
Counsel submitted that all of these were matters
of which the applicant had no knowledge because
no mention was made of any of them in the
Notice. Therefore, he had no opportunity to refute
or comment upon them in his appeal. This failure,
in his view, invalidated the decision of the
Commissioner.
Furthermore, he stated that the so-called "ser-
vice profile" which was prepared by a member of
the Review Board prior to its deliberations and as
stated, covered the career of the applicant from
the time of his enlistment, did not adequately
highlight the applicant's strong points as a
member of the Force but stressed his weaknesses.
To use counsel's words, "its purpose was to beef-up
the prosecution". In any event, in his view, the
service profile should have been made available to
the applicant for his representations in regard to
all matters referred to therein which were not
mentioned in the Notice of Recommendation for
Discharge.
It should first be said in connection with this
submission that, in my opinion, while the appli
cant, by virtue of the Regulations and Standing
Orders is entitled to know the facts upon which the
Notice of Recommendation is based, he is not
entitled to see or be advised of all of the evidence
upon which the reference to the facts is based. To
suggest otherwise would be inconsistent with the
fact that, as earlier stated, in volunteering for
service in a para -military force the volunteer
agrees to submit to restrictions on certain rights
which might otherwise be available to him in
civilian life. It is, I think, not without significance
that in civilian life the right to discharge an
employee is strictly a management function. It is
an administrative act and, unless covered by a
collective agreement or statute, the discharged
employee has no right of appeal from that dis
charge. Here, then, what is being sought is an
enlargement of the usual rights which a person
outside of the Force would have. It is inconceivable
that the limited right to appeal a similar, essential
ly administrative decision in the Force, should
open the door to rights which would not normally
be available in a civilian situation, at least so long
as what was done was done fairly.
Having carefully reviewed all the material in
evidence to which counsel referred us, I have not
been persuaded that he has shown that there were
material facts not mentioned in the Notice of
Recommendation which were taken into account
by the Review Board and the Commissioner in
supporting the recommendation and subsequently
ordering the discharge. Cpl. Danch was made
aware of all of the facts upon which they relied.
He was not made aware of all of the evidence
relating to those facts, nor, as has been stated, was
he entitled to be apprised of that evidence. It is
clear, however, that he was fully aware of much of
the evidence and the mere reference to a fact in
the Notice was sufficient to put him on notice of
the existence of such evidence and that it might be
used. For example, the reference to the "Official
Warnings" which he had received and acknowl
edged having received, was based on evidence with
which he was fully familiar. The same is true of
his Performance Reviews and Ratings during the
material period. While passing reference was made
in the service profile to his career in the Force
from its inception, the clear emphasis in the docu
ment related to Cpl. Danch's career after 1972
and, it may be said, it was a fair and impartial
review of his strong points as well as his weak ones
during that period. In my view, Cpl. Danch's
section 28 application cannot succeed on those
submissions.
However, the submission with respect to allega
tions concerning the applicant's conduct to which
no reference was made in the Notice of Recom
mendation because they were not made until after
service thereof on October 13, 1976 and upon
which thus the applicant could not make any
representations, is, perhaps, more difficult. The
allegations were of two kinds. The first arose out
of inquiries which were instituted following receipt
of Cpl. Danch's appeal.
In the appeal he devoted himself to a large
extent in attempting to refute the numerous alle
gations to two matters raised in the Notice of
Recommendation by showing that he was not the
person responsible for the delinquencies in those
two matters. He took the position that they were
the responsibility of his immediate superior,
S/Sgt. Durling or of other persons in the Force. As
a consequence, the Officer commanding the sub
division directed that S/Sgt. Durling be asked for
his comments on the submissions made by Cpl.
Danch. He did so by letter. This response was
never shown to Cpl. Danch notwithstanding that it
was a denial of the applicant's allegations support
ed by some evidence. I am of the opinion that
there was nothing improper in not affording Cpl.
Danch an opportunity to reply to the reply, as it
were. He had made certain allegations in his
appeal. In order to determine whether or not such
allegations had any substance it was apparently
deemed advisable, and I think justifiably so, that
the target of the allegations should be given the
opportunity to relate his version of the events in
issue. Upon its receipt the appropriate officers had
sufficient evidence to determine for themselves the
weight to be given to each version in formulating
the ultimate decision on the suitability or unsuita-
bility of Cpl. Danch for continued service in the
Force.
The second allegation arose as a result of fur
ther examples of neglect of duty or procrastination
in carrying out duties which were discovered by
the applicant's superiors after the service of the
Notice of Recommendation on him. I need not
deal with the specific examples. Suffice it to say
that Cpl. Danch was not apprised of them.
It seems to me that this allegation may be
regarded in two different ways.
The first view is that the further examples are
facts which ought to have been disclosed to the
applicant and upon which he might, if he chose,
make representations before the Commissioner's
decision was ultimately made.
The other view is that it may be said that they
merely provided further evidence of the general
charges made in the Notice of Recommendation of
poor work habits, procrastination and neglect of
duty. Being evidentiary in nature there was no
requirement that they be communicated to the
applicant.
I think that in this case the additional examples
fall within the first category and ought to have
been disclosed to the applicant. They illustrate the
inherent difficulty drawing the line between facts
and evidence. Realistically they are both factual
and evidentiary in nature. They are similar to
some of the examples of general slackness and
procrastination to which specific references were
made in the Notice of Recommendation and upon
which the applicant, if he had chosen to do so,
could have commented. He might have been able
to explain the additional ones away but he was
given no opportunity to do so. In my view, he
should have been and the only question remaining
really is whether they were, in fact, used by the
Board of Review and the Commissioner.
Undoubtedly, the preferable course would have
been not to have referred to the additional exam
ples at all nor to have made them part of the
record placed before the Review Board and the
Commissioner so that there could have been no
allegation of a breach of a rule of natural justice.
In that connection it is interesting to note that
Inspector Becker, the member of the Review
Board who prepared the service profile stated in
that document:
Since being notified of his recommendation for discharge,
other incidents have come to light concerning the performance
of Cpl. DANCH and can be found at TAB 36. 8 As Cpl. DANCH
has not had the opportunity to rebut any of the material or
allegations, no comment will be expressed at this time. [The
underlining is mine.]
Clearly Inspector Becker recognized the possible
unfairness in making use of such material and
allegations, but nevertheless they were left in the
record.
To what extent they were used is not entirely a
matter for speculation since, the Board of Review
in its report, the findings of which are reproduced
earlier in these reasons, stated "(5) His perform
ance continues to be unsatisfactory." Then follows
the recommendations which were confirmed by the
Commissioner. The inference to be drawn by the
use of the present tense in the quoted passage, it
seems to me, is that the Board did, in its delibera
tions, consider the further examples of the neglect
and procrastination. Since the Commissioner con
firmed their recommendations the inference so
drawn must extend to him.
As has already been stated, the decision to
discharge a member of the Force is essentially an
administrative one. The Commissioner, as a result
of his Standing Orders, permitting a right of
appeal from a recommendation for discharge due
to unsuitability, has made that act one to be
carried out, to a limited extent, on a quasi-judicial
basis. The limited nature of the right to appeal
must not extend to permit manifest unfairness in
carrying out the appeal procedure. To use material
in the decision-making process obtained after the
service of the Notice of Recommendation for dis
charge and not to disclose it to the member is, in
my view, manifestly unfair because it is impossible
to determine its effect in tipping the scales in
favour of discharge and thus, constitutes an error
in law. Had the additional material not been used
or contained in the record which went before the
Commissioner, in my view, there would have been
no reviewable error. But since it was, it is neces
sary, in my opinion, to set aside the order of
discharge.
8 This Tab refers to material which was apparently in the
record considered by the Board and, presumably, the
Commissioner.
In reaching this conclusion I am deeply con
scious of the admonition of Rand J. in the White
case (supra) that
Unless, therefore, the powers given are abused to such a degree
as puts action taken beyond the purview of the statute ...
internal management is not to be interfered with by any
superior court....
However, in this case, it is my opinion that there
has been a failure to properly observe the Standing
Orders, the promulgation of which was authorized
by the Act and it constitutes an error which, for
the reasons given, necessitates interference by this
Court.
* * *
The following are the reasons for judgment
rendered in English by
LE RAIN J.: I agree that there is no merit in the
applicant's contention that the procedure especial
ly provided in the Royal Canadian Mounted
Police Act for the trial of a service offence, or a
procedure like it, should be applied to the dis
charge of a member as unsuitable for further
service in the Force, where some of the conduct
which is invoked to justify the discharge might
constitute a service offence. It may be that a
member should not be subject to what amounts to
a disciplinary discharge for what is clearly being
treated by the Force as a service offence without
the benefit of the trial procedure provided by the
Act, but that is not the case here. The discharge in
this case is based on a long history of unsatisfacto
ry performance in respect of administrative duties.
It is not disciplinary in nature, but is based on a
conclusion that the applicant is not suitable
because of his general attitude and performance
for further service in the Force.
I agree with my brother Pratte that the appli
cant's procedural rights on a recommendation for
discharge are confined to those that are expressly
provided and necessarily implied by Regulation
151 and Standing Order II.14.C.6. These provi
sions clearly exclude the right to an oral hearing.
In so far as the right to counsel is concerned, there
was nothing to prevent the applicant from obtain
ing the assistance of counsel in the preparation of
his written appeal. There could be no question of
the refusal of a right to counsel in a proceeding in
which there is no right to be present, to make oral
representations, and to adduce evidence and cross-
examine. In so far as the right to notice and a
written appeal imply a certain duty of disclosure to
the applicant, I am satisfied that the applicant was
sufficiently informed by the notice of recommen
dation for discharge of the substance of what was
relied on to support the recommendation. Standing
Order II.15.C.3 provides that "No member will
have access to his own service, personnel, medical
or security file", which necessarily qualifies the
duty of disclosure implied by the right of appeal
afforded by Standing Order II.14.C.6, but the
applicant was entitled, under the procedure pro
vided for an appeal, to have the assistance of the
staff relations representative in the preparation of
his appeal, and the latter has access to the files
under Standing Order II.16.F.11. The applicant
also had direct knowledge of what was in his A-26
reports and the other facts alleged were also obvi
ously within his knowledge. In the result, the
applicant had in my opinion a sufficient opportu
nity to meet the case against him, as that case was
outlined in the notice of recommendation for
discharge.
The serious issue, as the reasons for judgment of
my brothers Pratte and Urie indicate, is that
which is created by the manner in which allega
tions of unsatisfactory performance made subse
quent to the notice of recommendation for dis
charge and the filing of the applicant's appeal
were introduced into the record before the Review
Board and the Commissioner without notice to the
applicant.
These "additional incidents", some five or six in
number, which were set out in considerable detail
in S/Sgt. Durling's memorandum of November 6,
1976 to the O.C. Halifax Sub-Division, were of a
serious nature. If there were any benefit of doubt
or leniency to be given to the applicant on an
overall assessment of his record, having regard
particularly to the suggestion at one time that he
be transferred to a more suitable position in the
area of public relations, these further allegations
or charges were of a nature to tip the balance of
judgment against him. It is sufficient to note the
significance which senior officers attached to
them. Inspector M. J. McInnis, A/O.C. Halifax
Sub-Division, forwarded Durling's memorandum
on November 8, 1976 to the C.O. "H", Halifax,
with the following observations typed across the
bottom:
FORWARDED for your information and record. As noted,
additional incidents concerning Cpl. Danch's performance have
come to light since my recommendation for his discharge, my
correspondence dated 13 Oct 76 refers, as well as my corre
spondence dated 14 Oct 76, wherein it was reported that Cpl.
Danch failed to appear before me on 13 Oct 76 when instructed
to do so.
These additional incidents are a further revelation concern
ing Cpl. Danch's performance and attitude which supports my
recommendation for his discharge. No action is being contem
plated at this time at Sub-Division level, other than reporting
and recording this material on file.
A memorandum of November 9, 1976 from D.
J. Wright, C/Supt., Commanding "H" Division,
to the Commissioner in support of the recommen
dation for discharge makes references to the subse
quent allegations of unsatisfactory performance,
which, while indicating that they are not to be the
subject of any independent or separate action
pending the outcome of the recommendation, do
not indicate clearly that they are not intended to
influence the decision on the recommendation, as
the following passages in the memorandum
suggest:
Please find attached our complete correspondence leading up
to the recommendation for discharge of Cpl. DANCH, his
appeal, and subsequent further evidence of poor service which
has not been actioned, but which is being documented on file
pending the outcome of this recommendation.
Recent correspondence dated 6 November 76 documents fur
ther evidence of this member's lack of application to duties as
follows:
As mentioned previously, we do not intend to take any action
on these further apparent breaches of discipline pending the
outcome of the recommendation for discharge and Cpl.
DANCH's appeal.
In the brief dated November 25, 1976 submitted
to the Chairman of the Review Board by Inspector
W. J. Becker, Officer i/c Discipline and Transport
Claims Branch, the Board's attention is drawn to
the subsequent allegations of unsatisfactory
performance set out in the Durling memorandum,
and also apparently to the Wright memorandum,
as follows:
Since being notified of his recommendation for discharge, other
incidents have come to light concerning the performance of
Cpl. DANCH and can be found at TAB 36. As Cpi. DANCH has
not had the opportunity to rebut any of the material or
allegations, no comment will be expressed at this time.
In forwarding the material in respect to Cpl. DANCH'S notifica
tion, appeal etc., the C.O. "H" Div. mentions Cpl. DANCH is
fast becoming almost unmanageable and strongly urges that
favourable consideration be given to the recommendation for
discharge.
The issue is whether this treatment of the subse
quent allegations of unsatisfactory performance
deprived the applicant of the right of appeal to
which he was entitled, or in other words, of a fair
opportunity to meet the case against him. While I
feel the force of the analysis by my brother Pratte
I am unable to satisfy myself, as a result of the
manner in which these subsequent allegations were
referred to and made a part of the material that
was before the Board and the Commissioner, that
the applicant was dealt with fairly on his appeal. I
agree with the view that my brother Urie takes of
this aspect of the case. The circumstances are such
as in my opinion to shift the onus to the respond
ents to satisfy the Court that these subsequent
allegations were not taken into consideration by
the Board and the Commissioner or did not in any
way influence their decision, and this onus is not in
my opinion discharged by the record. Indeed, in
the circumstances it would be an onus virtually
impossible to discharge. Once these subsequent
allegations were placed before the Board the appli
cant should have been given notice of them and an
opportunity to supplement his appeal in order to
meet them.
Before leaving this matter I should observe that
I have considered whether we are obliged to take
the view that the decision of this Court in
McCleery v. The Queen [ 1974] 2 F.C. 339, has in
effect been overruled by the judgment of the
Supreme Court of Canada in the Matsqui case 9 , to
which my brother Pratte has made reference in his
9 Martineau and Butters v. The Matsqui Institution Inmate
Disciplinary Board [1978] 1 S.C.R. 118.
reasons for judgment. In my respectful opinion this
would not appear to be the case. Apart from other
circumstances which may distinguish the two
cases, the right to present one's case on a recom
mendation for discharge which is necessarily
implied by the provision for notice in Regulation
151 clearly rests on what would be recognized in
the light of the majority opinions in the Matsqui
case as a binding provision of law. Moreover,
section 26 of the Royal Canadian Mounted Police
Act, in providing that violation of a standing order
is a minor service offence rendering the member
concerned liable to trial and punishment as pro
vided by the Act, distinguishes standing orders
from the directives which four members of the
Supreme Court held in the Matsqui case were not
"law" within the meaning of section 28 of the
Federal Court Act.
For these reasons I would allow the application
and set aside the decision of the Commissioner
that the applicant be discharged as unsuitable for
further service in the Force.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.