Overview
The Police Act is a specialized labour relations statute that deals with the employment of police officers and the protection of the public. The Act outlines a process to address police misconduct and reflects a balancing of the interests of the public and police officers whose conduct requires scrutiny. The Act is designed to discourage police misconduct and ensure the fair, timely, and efficient resolution of complaints.
Following an investigation and decision under the Act, Sgt. Amjer Sandhu applied for judicial review of his investigation alleging that the individual who authorized the investigation did not have the authority to do so. This error, he alleged, made the process procedurally unfair. The Supreme Court of British Columbia (BCSC) agreed. The Court of Appeal (BCCA) overturned the BCSC decision reinforcing the principle that absent clear evidence of procedural unfairness, courts should be reluctant to interfere in processes followed under the Act. The BCCA held that the error in this case was a benign error, the process was not unfair, and making the parties “start over” to cure the jurisdictional error would serve no useful purpose.
Facts
A Crown prosecutor (the “Complainant”) submitted a complaint to the Police Complaint Commissioner (“Commissioner”) alleging that a VPD member attempted to intimidate her during a criminal trial she was prosecuting (the “Incident”). Sgt. Sandhu was allegedly standing with the VPD member when the Incident occurred and was ordered to provide a written report on the Incident. His report conflicted with the Complainant’s report and the report of another witness.
After receiving a progress report, the Complainant requested that an outside police agency complete the investigation due to conflicts of interest. The Commissioner directed the RCMP to conduct the investigation. Central Saanich Chief Cst. Sylven was designated as the discipline authority (DA Sylven).
After the Final Investigation Report was delivered, DA Sylven ordered that further investigation occur with respect to potential misconduct by Sgt. Sandhu and Sgt. Sandhu was eventually named as a respondent. Following the investigation and a discipline hearing, Sgt. Sandhu was found to have committed three counts of deceit and received a reduction in rank from sergeant to first class constable with no ability to compete for promotion for five months.
Sgt. Sandhu applied for judicial review seeking orders quashing several steps in the process on the basis that DA Sylven lacked the statutory authority to order the investigation into his conduct and that the resulting proceeding was procedurally unfair. Under the Act, only the Commissioner has the authority to initiate investigations.
Judicial Review
On judicial review, the BCSC granted the relief sought and concluded that:
- DA Sylven committed jurisdictional error by initiating the investigation without statutory authority, which was not a “benign procedural flaw” or curable by a review on the record.
- The process was procedurally unfair because Sgt. Sandhu “did not receive the process to which he was entitled,” the process was potentially consequential, and DA Sylven “assumed overlapping roles as the complainant and the adjudicator”.
On Appeal
The BCCA allowed the appeal, set aside the BCSC decision, and dismissed the application for judicial review. The two main issues were:
- Whether the proceedings were unfair due to DA Sylven’s error in initiating the investigation without authority or for any other reason?
- Did the BCSC err in the exercise of its remedial discretion? If so, what remedy, if any, should be granted?
Were the Proceedings Unfair?
The BCCA held that although the process was flawed, it was not procedurally unfair. Administrative bodies that investigate a member’s conduct owe the member a duty of fairness that depends on the nature of the investigation and the consequences it may have. A reasonable apprehension of bias is a source of unfairness that arises where the roles of accuser and adjudicator overlap. The test asks whether a reasonable person would think it more likely than not that the decision-maker would not decide fairly.
The legislature is entitled to design the structure and roles of tribunals and administrative decision-makers and to modify the principles of natural justice, including reasonable apprehension of bias. Therefore, statutes which authorize overlapping roles are allowed.
The BCCA held that DA Sylven’s decision to order the investigation rather than refer the misconduct to the Commissioner was an error because Sgt. Sandhu’s potential misconduct was insufficiently related to the initial complaint to fall within the investigation. However, the BCCA held that non-compliance with statutory requirements does not create procedural unfairness simply because the process followed was potentially consequential and not that to which a member was entitled. Some discernable form of unfairness associated with the non-compliant process is required to establish procedural unfairness in addition to the absence of jurisdiction or statutory authority.
In this case, the BCCA concluded that while initiating an investigation without statutory authority is a jurisdictional error it did not amount to unfairness for the following reasons:
- Sandhu was not unfairly deprived of his right to timely notice because of the error.
- There was no unfairness associated with the timing of the investigation.
- A decision to initiate an investigation is not a merits-based assessment, rather it assesses whether alleged conduct, if substantiated, would constitute misconduct. The actor does not investigate, adjudicate, or form any conclusions on the merits of the allegation.
Further, the BCCA noted that due to the statutory scheme, the disciplinary authority assumes an overlapping role of complainant and adjudicator. Thus, if DA Sylven had informed the Commissioner of Sgt. Sandhu’s misconduct as required, he would have acted as the effective complainant in any event. The BCCA held that a reasonable apprehension of bias did not arise from DA Sylven’s act of initiating the investigation then subsequently acting as the adjudicator.
Finally, the BCCA stated the evidence clearly showed the Commissioner would have initiated the investigation and appointed DA Sylven as the discipline authority in any event.
What Remedy, if any, should be Granted?
The BCCA held the BCSC erred in principle in its procedural unfairness analysis and as such, the court is entitled to interfere with the exercise of remedial discretion. The BCCA held that quashing the decisions at issue would make no practical difference despite the procedural error. The BCCA noted this is an exceptional case where it is not in the interests of the justice to quash the decision.
The BCCA reiterated that a reviewing court can refuse to grant relief in situations where the decision under review would have been the same despite a demonstrated error. The court’s exercise of discretion protects the concern for judicial economy and emphasizes that courts are meant to adjudicate disputes in a way that makes a practical difference to the rights of the parties. Under this discretion, a court may refuse to interfere with an administrative process that did not comply with statutory requirements.
The BCCA emphasized that the proper focus on judicial review is the interests of justice, in light of the facts and considerations of fairness, practicality and efficiency. The BCCA noted that the classification of an error as jurisdictional, legal, or procedural may not be helpful in many cases. Rather, the question should be whether the error was “benign” in its impact on the fairness of the proceedings and whether quashing and remitting the decision under review would serve the interests of justice.
The BCCA considered the serious nature of Sgt. Sandhu’s alleged conduct, the Commissioner’s statutory role and the absence of contrary evidence, which demonstrated that the Commissioner would have ordered the investigation in any event. Further, the BCCA accepted the Commissioner’s submission that the Commissioner would have appointed DA Sylven as the external discipline authority and that the practical considerations of cost and efficiency warranted his appointment. Overall, the BCCA held that no useful purpose would be served by requiring the parties to start the process over again.
As a result, the appeal was allowed, the BCCA set aside the BCSC’s decision and dismissed the application for judicial review.
Conclusion
The BCCA’s decision highlights the court’s deference to the statutory scheme of the Act which is often referred to as a complete code. The BCCA reiterated that the Act is a specialized piece of legislation concerned with municipal police officer conduct and protection of the public in British Columbia. It is designed to discourage police misconduct and ensure the fair, timely and efficient resolution of complaints.
In this case, DA Sylvan’s error was a “benign” jurisdictional error which did not result in procedural unfairness or an unfair application of the Act. The BCCA’s decision reinforces that absent clear evidence of procedural unfairness, courts should be reluctant to interfere in these types of decisions. In cases where there are serious allegations of misconduct, the interests of practicality and judicial efficiency are important and quashing a decision for a benign error, where a lack of procedural fairness has not been established, would favour form over substance and serve no useful purpose.
If you require additional information or further assistance, please contact David McKnight and Naomi Krueger.
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