Elsner v. British Columbia (Police Complaint Commissioner), 2018 BCCA 147 (CanLII)
Date:
2018-04-19
File number:
CA44393
Citation:
Elsner v. British Columbia (Police Complaint Commissioner), 2018 BCCA 147 (CanLII), <http://canlii.ca/t/hrkq6>, retrieved on 2020-03-24
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
|
Elsner v. British Columbia (Police Complaint Commissioner),
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2018 BCCA 147
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Date: 20180419
Docket: CA44393
Between:
Chief Constable Frank J. Elsner
Respondent
(Petitioner)
And
The Police Complaint Commissioner
Appellant
(Respondent)
And
Mayors Barbara Desjardins and Lisa Helps in their capacity
as Internal Discipline Authority
as Internal Discipline Authority
Respondents
(Respondents)
Restriction on publication: This file is partially sealed and there is a publication ban of the names of the individuals referenced as Officer A and Officer B, pursuant to an order dated April 12, 2017, and until further order of the Court.
Before:
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The Honourable Madam Justice Newbury
The Honourable Madam Justice Kirkpatrick
The Honourable Mr. Justice Fitch
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On appeal from: An order of the Supreme Court of British Columbia,
dated April 12, 2017 (Elsner v. British Columbia (Police Complaint Commissioner), 2017 BCSC 605, Vancouver Registry Docket S162351).
dated April 12, 2017 (Elsner v. British Columbia (Police Complaint Commissioner), 2017 BCSC 605, Vancouver Registry Docket S162351).
Counsel for the Appellant:
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D.K. Lovett, Q.C.
B. Martland
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Counsel for the Respondents,
Barbara Desjardins and Lisa Helps: |
J.M. Doyle
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Counsel for the Attorney General of
British Columbia: |
S. Bevan
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Place and Date of Hearing:
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Vancouver, British Columbia
March 16, 2018
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Place and Date of Judgment:
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Vancouver, British Columbia
April 19, 2018
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Written Reasons by:
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The Honourable Madam Justice Newbury
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Concurred in by:
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The Honourable Madam Justice Kirkpatrick
The Honourable Mr. Justice Fitch
| |
Summary:
CA sets aside chambers judge’s order which quashed, in part, Police Complaint Commissioner’s order for external investigation into conduct of Chief Constable of the Victoria Police Department pursuant to s. 93 of Division 3 of Part XI of the Police Act. Conduct concerned Twitter communications between Chief Constable and spouse of an officer under his command. Conduct was originally addressed as “internal discipline matter” pursuant to Division 3 of Part XI of the Act. Chambers judge erred in applying standard of review of correctness. General rule that a tribunal’s interpretation of its own statute is afforded deference was not displaced. The PCC’s decision to order an external investigation after the matter had been addressed internally was based on a reasonable interpretation of s. 93. PCC’s conclusion that the reputation of the administration of justice may require a more open investigation than under Division 6 of Part XI lay within the bounds of reasonableness. While further investigation would not further underlying principles of finality and judicial economy, order did not amount to abuse of process by re-litigation – or “re-investigation.” Nevertheless, CA queried whether the time and expense of another investigation was warranted given Chief Constable had resigned; the alleged misconduct was mainly an exchange of “Twitter” messages; and important personal and privacy interests would suffer in an external investigation.
Reasons for Judgment of the Honourable Madam Justice Newbury:
[1] In this appeal, the Court is asked to address once again the dense and complicated procedures set out in Part XI of the Police Act, R.S.B.C. 1996, c. 367 for dealing with allegations of misconduct on the part of police. As is well known, and as this court recounted in Florkow v. British Columbia (Police Complaint Commissioner) 2013 BCCA 92, the question of how best to address and resolve such complaints was the subject of various reports and enquiries over the 1990s and the first decade of this century. The last of these was the Report on the Review of the Police Complaint Process in British Columbia by Mr. Josiah Wood, Q.C. (as he then was). It was released in February 2007, and most of its recommendations were adopted when the Legislature enacted Part XI: see S.B.C. 2009, c. 28. It came into force on March 31, 2010 and has not been changed in any substantive way since then.
[2] Under Part XI, the Police Complaints Commissioner (“PCC”), who is an officer of the Legislature, has a ‘gatekeeper’ role aimed at “ensuring that misconduct on the part of police is appropriately dealt with in the public interest and in accordance with the Act”. (Florkow, at para. 2.) Part XI creates three “streams” or processes: “public trust complaints”, dealt with under Division 3; “internal discipline matters”, dealt with under Division 6; and “policy or service complaints”, dealt with under Division 5. Since this case does not involve a policy or service complaint, I need not describe Division 5 here.
[3] As will be explained in greater detail below, Divisions 3 and 6 are very different. Division 3 consists of over 75 complicated sections. It contemplates a series of steps to be taken by various “authorities” in investigating, reporting on and reviewing complaints of “misconduct” – defined generally to mean “public trust offences” – on the part of police. The PCC must make decisions within the specified time limits at various stages of the process, which may or may not bring the matter to an end. If the process continues to the final stage, a full public hearing before a retired judge may be convened. Division 6, in contrast, consists of only three sections. It contemplates that an “internal discipline authority” – in this case, the chair of the municipal police board that employs the police officer (or “member”) whose conduct is at issue – will act in accordance with procedures previously established by the board for internal discipline matters. The authority must provide its final decision and any recommendations to the PCC, but the Commissioner is not given any (express) authority to reject the decision or to require that it be reviewed further.
[4] In the case at bar, the conduct at issue was not the subject of a complaint under the Act; nor did it involve conduct by a police officer in carrying out police duties or interacting with the public. Instead, it involved conduct of the kind that may occur in any workplace – a flirtation between two people, both married. In this instance, the “relationship” was found not to have gone beyond some “Twitter” messages and one awkward meeting in his office when she turned up unexpectedly. Unfortunately, one party was a chief constable; the other (“Officer A”) was a police officer. She was not under his command, but was the spouse of “Officer B”, who was under the Chief Constable’s command. It is this fact that arguably takes his conduct outside the realm of ordinary workplace relationships and that has made it a matter of concern to other members serving with Officer B.
Statutory Context
Definitions
[5] Before recounting the facts in detail, however, it may be useful to describe the statutory context as it relates to the two types of processes in Divisions 3 and 6 of Part XI. I note first the following definitions in s. 76 that are relevant to this appeal:
“internal discipline matter” means a matter concerning the conduct or deportment of a member that
(a) is not the subject of an admissible complaint or an investigation under Division 3, and
(b) does not directly involve or affect the public;
“member” means a municipal constable, deputy chief constable or chief constable of a municipal police department;
“misconduct” has the same meaning as in Division 2.
Section 77(1) in Division 2 defines “misconduct” to mean:
(a) conduct that constitutes a public trust offence described in subsection [77] (2), or
(b) conduct that constitutes
(i) an offence under section 86 or 106, or
(ii) a disciplinary breach of public trust described in subsection [77](3).
Section 77 continues:
(2) A public trust offence is an offence under an enactment of Canada, or of any province or territory in Canada, a conviction in respect of which does or would likely
(a) render a member unfit to perform her or his duties as a member, or
(b) discredit the reputation of the municipal police department with which the member is employed.
(3) Subject to subsection (4), any of the conduct described in the following paragraphs constitutes a disciplinary breach of public trust, when committed by a member:
(a) “abuse of authority”, which is oppressive conduct towards a member of the public, including, without limitation,
(i) intentionally or recklessly making an arrest without good and sufficient cause,
(ii) in the performance, or purported performance, of duties, intentionally or recklessly
(A) using unnecessary force on any person, or
(B) detaining or searching any person without good and sufficient cause, or
(iii) when on duty, or off duty but in uniform, using profane, abusive or insulting language to any person including, without limitation, language that tends to demean or show disrespect to the person on the basis of that person’s race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, age or economic and social status;
. . .
(h) “discreditable conduct”, which is, when on or off duty, conducting oneself in a manner that the member knows, or ought to know, would be likely to bring discredit on the municipal police department, including, without limitation, doing any of the following:
(i) acting in a disorderly manner that is prejudicial to the maintenance of a discipline in the municipal police department;
(ii) contravening a provision of this Act or a regulation, rule or guideline made under this Act;
(iii) without lawful excuse, failing to report to a peace officer whose duty it is to receive the report, or to a Crown counsel, any information or evidence, either for or against any prisoner or defendant, that is material to an alleged offence under an enactment of British Columbia or Canada.
[Emphasis added.]
I note that there is no allegation in this case of any “offence under an enactment of Canada” or the Province.
Public Trust Complaints Under Division 3
[6] Division 3 of Part XI, headed “Process Respecting Alleged Misconduct”, deals with complaints concerning “any conduct of a member that is alleged to constitute misconduct”. (My emphasis.) Such a complaint may be made directly to the PCC or to any of the persons described in s. 78(2)(b). On receipt of a complaint, the PCC must determine whether it is admissible or inadmissible under s. 82, subsection 2 of which states:
(2) A complaint or part of a complaint is admissible under this Division if
(a) the conduct alleged would, if substantiated, constitute misconduct by the member,
(b) the complaint is made within the time allowed under section 79(1) or (2), and
(c) the complaint is not frivolous or vexatious. [Emphasis added.]
[7] Conversely, a complaint is inadmissible insofar as it relates to the matters set out forth in s. 82(3):
(3) A complaint or a part of a complaint is inadmissible under this Division insofar as it relates to any of the following:
(b) the inadequacy or inappropriateness of any of the following in respect of a municipal police department:
Inadmissible complaints are required to be processed by the board of the relevant police department under Division 5 of Part XI.
[8] Division 3 goes on to make detailed provision for the investigation of admissible complaints that are not resolved by mediation or other informal means under Division 4. Where the complaint concerns the conduct of a chief constable or former chief constable, the PCC must direct that the investigation be carried out by a constable of an external force appointed by a chief constable or by a special provincial constable: s. 91(1).
[9] Since no complaint was formally made in this case, s. 93 is also relevant and indeed is relied on heavily by the PCC. It provides in part:
(1) Regardless of whether a complaint is made or registered under section 78, if at any time information comes to the attention of the police complaint commissioner concerning the conduct of a person who, at the time of the conduct, was a member of a municipal police department and that conduct would, if substantiated, constitute misconduct, the police complaint commissioner may
(a) order an investigation into the conduct of the member or former member, and
(b) direct that the investigation into the matter be conducted under this Division by any of the following as investigating officer:
(i) a constable of the municipal police department who has no connection with the matter and whose rank is equivalent to or higher than the rank of the member or former member whose conduct is the subject of the investigation;
(ii) a constable of an external police force who is appointed for the purpose of this section by a chief constable, a chief officer or the commissioner, as the case may be, of the external police force;
(iii) a special provincial constable appointed for the purpose of this section by the minister.
(2) In making an appointment under subsection (1)(b)(iii), the minister must consider the recommendations, if any, of the police complaint commissioner.
. . .
(9) The police complaint commissioner may provide information respecting an investigation under this section to any persons who, in the police complaint commissioner’s opinion, have a direct interest in the matter.
(10) In providing information under subsection (9), the police complaint commissioner may sever any information that must or may be excepted from disclosure by the head of a public body under Division 2 of Part 2 of the Freedom of Information and Protection of Privacy Act.
[10] The balance of Division 3 goes on to provide for the multi-stage process I have mentioned. In Florkow, we set out those stages at paras. 8–11, to which the reader is referred. We also summarized the process as follows:
The process established by Part XI for dealing with complaints of police misconduct encompasses several stages ‒ the investigation of a complaint by an investigating officer (“IO”); the review of the IO’s final investigative report by a “discipline authority” (“DA”) and, where the DA considers that the conduct of the police officer (“member”) constitutes misconduct, the convening of a discipline proceeding; the review of a DA’s ‘no misconduct’ determination by a retired judge (who becomes the DA) where the PCC considers the first DA’s determination to be “incorrect”; the preparation of a disposition report by the DA following a discipline proceeding, and his or her determination of appropriate disciplinary measures; and in certain circumstances, the arranging of a “review on the record” or a public hearing by an “adjudicator” (who is also a retired judge). Where at the end of the investigative stage or at the end of a disciplinary proceeding, the decision-maker finds that the conduct complained of does not constitute misconduct, the Act generally brings the process to an end by stating that the decision is “final and conclusive” and “not open to question or review by a court of law”. An exception is made at the end of the investigative stage, however, if the PCC takes certain measures within the time specified in the Act: see s. 112(5). [At para. 3.]
[11] At whatever stage the process ends, the “discipline authority” may determine and apply any of the disciplinary or corrective measures set out in s. 126(1), which range from dismissal to giving advice to the member (or former member: see s. 127). The PCC receives a copy of the authority’s conclusion and reasons, and unless the PCC arranges a public hearing or review on the record, the authority’s decision is “final and conclusive.” (s. 133(6).)
[12] This court held in Florkow that the PCC did not have a ‘stand-alone’ or inherent discretion to order a public hearing, as the PCC had had under the previous legislation. The fact that the 20-day time limitation specified in s. 117(3) had passed without the PCC’s having acted to appoint a retired judge to determine whether the conduct in question ‘appeared to’ constitute misconduct, meant that the PCC lacked the authority to convene a public hearing: see para. 61. The Court declined to infer the existence of an inherent jurisdiction that would permit the PCC to bypass the “very detailed provisions” of Part XI. (See also Bentley v. Police Complaints Commissioner 2014 BCCA 181.)
Internal Discipline Matters Under Division 6
[13] Division 6 of Part XI deals with “internal discipline matters”, which s. 76 defines as follows:
“internal discipline matter” means a matter concerning the conduct or deportment of a member that
(a) is not the subject of an admissible complaint or an investigation under Division 3, and
(b) does not directly involve or affect the public. [Emphasis added.]
[14] As mentioned earlier, Division 6 is consists of only three sections. Section 174 sets out the meaning of “internal discipline authority”. Where the conduct of a chief constable is at issue, the authority is “the chair of the board of the municipal police department with which the member is employed.” The remaining two sections of Division 6 state:
175 (1) A chief constable of a municipal police department and the chair of the board of the municipal police department must establish procedures, not inconsistent with this Act, for dealing with internal discipline matters and taking disciplinary or corrective measures in respect of them.
(3) An internal discipline authority, the board and any arbitrator that may be appointed under the grievance procedure of the collective agreement may use, but are not restricted by,
(a) Division 2 to determine standards against which the conduct or deportment of a member may be judged, and
(a) any recommendation on disciplinary or corrective measures arising from an internal discipline matter, and
(5) On request of the police complaint commissioner, an internal discipline authority must provide any additional information or records respecting an internal discipline matter that are in the possession or control of the municipal police department concerned.
(6) The internal discipline authority may determine any issue respecting a member’s competence or suitability to perform police duties that arises in an internal discipline matter.
176 (1) A chief constable of a municipal police department may delegate to a deputy chief constable or senior officer of the municipal police department any of her or his powers or duties as internal discipline authority in a member’s case under this Division.
(2) A delegation under this section must be in writing, and the chief constable making the delegation must, as soon as practicable after the delegation is made, notify the police complaint commissioner and the member concerned of that delegation.
[Emphasis added.]
[15] The Internal Discipline Rules of the Victoria Police Department (“VPD”) contemplate that the “discipline authority” in relation to conduct of a chief constable – the chair of the employer police board – may order an investigation if he or she becomes aware there may be “grounds to discipline or dismiss” a member. The investigation must be carried out by a person of equal or higher rank than the member.
[16] The Rules include a directive that members may use Internet access at the VPD only for business purposes, and may access social media on a computer owned by the Department, only for investigational purposes. Members are also warned that they have no reasonable expectation of privacy and that “All uses of social media must meet the ethical standards consistent with the expectations of [VPD] employees.”
Factual Background
[17] Turning next to the facts of this case, I note that this court has had access to certain material that is subject to a sealing order made by the court below on October 21, 2016. The Supreme Court also imposed an interim publication ban with respect to the names of Officers A and B, which ban is still in force. (See 2016 BCSC 1914 at paras. 39–45.) In the final judgment that is the subject of this appeal, the chambers judge continued the ban with respect to the identity of Officers A and B, but left it to the PCC to decide whether information obtained from a search of the Chief Constable’s Twitter account should be publicly disclosed. In the Court’s words, “the Commissioner is permitted to conduct the External Investigation to the extent allowed in these reasons and make what use he needs of those messages in the course of that investigation, consistent with the Act and the publication ban ordered herein.” (At para. 120.)
[18] The respondents Helps and Desjardins are
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