Q.B.G. A.D. 1999 No. 341 J.C.R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART FIFTY-TWO OF THE RULES OF THE COURT OF QUEEN’S BENCH AND IN THE MATTER OF AN APPLICATION TO PROHIBIT HEARING OFFICER DIRK SILVERSIDES FROM CONTINUING WITH HEARING IN RESPECT OF DISCIPLINARY CHARGES MADE AGAINST CST. SHAUN YOUNG PURSUANT TO THE POLICE ACT, 1990 BETWEEN: CST. SHAUN YOUNG and CHIEF OF POLICE, REGINA POLICE SERVICE and DIRK SILVERSIDES, in his capacity as Hearing Officer under The Police Act, 1990 RESPONDENT Merrilee D. Rasmussen, Q.C. for the applicant D. Neil Robertson for the respondents JUDGMENT GUNN J. March 24,1999 [1] The applicant, Cst. Shaun Young seeks an order in the nature of prohibition to prevent the respondent hearing officer, Dirk Silversides, from proceeding with the hearing into the conduct of the applicant pursuant to discipline charges brought against him by the respondent police chief, dated October 26, 1998. [2] The applicant also seeks declaration that: 1. member of police service must be informed of any investigation of his conduct prior to the commencement of the investigation, as required by Section 54 of The Police Act, 1990, S.S. 1990-91, c. P-15.01 (the “Act"). 2. The Act does not permit the amendment of the Form discipline notice, since it is statutory form. The relief sought in the motion regarding disclosure has been abandoned by the applicant. [3] The applicant is member of the Regina Police Service. Pursuant to the Act the applicant was charged with discreditable conduct in respect of an alleged offence occurring on May 2, 1998. Cst. Young was served with the Notice of Formal Discipline Proceedings in Form under the Act on October 28, 1998. He received no notice of the investigation pursuant to s. 54(1) of the Act. hearing before Dirk Silversides, hearing officer appointed to hear such matters under the Act with respect to this charge commenced December 10, 1998. [4] The applicant took objection to the prosecutor's request to amend the Form notice of the discipline offence with which Cst. Young was charged and with the failure by the Chief of Police to provide notice to Cst. Young of the discipline proceedings as required by the Act. [5] The hearing officer held that s. 42 of the Act provides complete discretion to the Chief of Police to amend charges without the need to obtain leave to do so from the hearing officer or, in the alternative, that the hearing officer had the discretion to grant leave to amend and leave was granted. The hearing officer held that, although s. 54(1) of the Act requires the Chief of Police to advise the member of the police service who is the subject of discipline proceedings prior to or concurrent with an investigation into the member's conduct, where the required notice is not provided, the validity of any subsequent hearing will not be affected by that failure, unless the failure to give notice affects the member's right to be apprised of the case against him in accordance with the rules of natural justice. [6] The hearing officer held that in the absence of any evidence that the applicant's right to fair hearing was affected, the hearing could proceed, although the hearing officer cautioned the Chief of Police that failure to provide the required statutory notice in future could lead to different result. [7] The applicant seeks writ of prohibition to prohibit Silversides from proceeding with the hearing into the conduct of the applicant on the grounds that there are contraventions of the Act, The Municipal Police Discipline Regulations, 1991, R.R.S., c. P-15.01, Reg. and the rules of natural justice and the duty of fairness which have resulted in the hearing officer having exceeded or lost jurisdiction to proceed with the hearing. [8] The respondent takes the position that this Court should not entertain the application where there is a convenient alternative remedy provided in the Act by way of appeal to the Saskatchewan Police Commission. Further it submits that the Chief of Police was entitled to amend the "Notice of Formal Discipline Proceedings" and in the event that such amendment required leave of the hearing officer, he would be entitled to grant such leave. Lastly, the respondent submits that the hearing officer erred in holding that s. 54(1) of the Act requires notice of an internal investigation to be provided to the member who is the subject of the investigation. THE LEGISLATION [9] The following provisions of the Act and the regulations are relevant: The Act: In this Act: ... (d) “commission” means the Saskatchewan Police Commission continued pursuant to section 3; ... (i) “investigator” means the complaints investigator appointed pursuant to section 16. 4(1) The commission is to consist of not less than three commissioners to be appointed by the Lieutenant Governor in Council. 12(1) Subject to the approval of the Lieutenant Governor in Council, the commission may make regulations; (a) prescribing minimum standards for the selection and training of members; (b) prescribing police training program for members or any category of members; ... (j) establishing uniform disciplinary code for all police services, including the procedure to be followed in hearing and determining breaches of discipline, unsuitability or incompetence; (k) prescribing offences under any code established pursuant to clause (j) and the penalties that may be administered; (l) providing for and prescribing rules respecting appeals with respect to discipline, breaches of conduct, suspensions or dismissals from employment; Complaints COMPLAINTS PROCEDURE 37 In this Part: (a) “internal discipline” means disciplinary proceedings initiated within the police service. ... 42 Where complaint or charge against member or chief pursuant to this Part is expanded or altered as result of an investigation, the chief or board conducting the investigation shall provide that member or chief with written notice of that expansion or alteration. INTERNAL DISCIPLINE 54(1) Where internal discipline proceedings are initiated pursuant to this Part with respect to member, the chief shall immediately: (a) in writing, advise: (i) the member who is the subject of the proceedings; and (ii) where the matter directly relates to member of the public, the investigator; of the substance of the matter; and (b) cause an investigation into the matter to be conducted. 56(1) Where hearing is proceeded with pursuant to section 48, 52, 54 or 55, the rules prescribed in this section apply to the hearing. (5) The rules of evidence for all hearings conducted pursuant to this Part are the same as in civil cases in Her Majesty's Court of Queen's Bench for Saskatchewan. (10) All oral evidence received at hearing conducted pursuant to this Part, is to be taken down in writing or recorded by electronic means. (11) All the evidence taken down in writing or recorded by electronic means and all documentary evidence and things received in evidence at hearing conducted pursuant to this Part forms the record of the hearing. 59(2) hearing officer, after making decision with respect to internal discipline proceedings, shall immediately give notice in writing to: (a) the person who is subject of the proceedings; and (b) the board or the chief, as the case may be; of the findings of the hearing, any action taken pursuant to section 58 and the rights of appeal provided for pursuant to this Act. (3) Within 30 days after the day on which member, chief, board or complainant is given notice of decision of hearing officer pursuant to section 58, the member, chief, board or complainant may apply to the commission for permission to appeal that decision to the commission pursuant to section 69. INCOMPETENCE AND UNSUITABILITY ... 62 Subject to any right of appeal to the commission under this Act, every decision or order of the hearing officer is final, and no order, decision or proceeding of the hearing officer shall be questioned, reviewed, restrained or removed by prohibition, injunction, certiorari, mandamus or any other process or proceeding in any court. ... APPEAL TO COMMISSION 69(1) person entitled to apply to the commission for permission to appeal shall serve on the commission notice of application for permission to appeal all or part of the decision to the commission. (4) The commission shall grant permission to appeal where: ... (b) the decision affecting the member or chief seeking an appeal imposes: (i) dismissal; or (ii) demotion in rank; (c) after considering: (i) the notice of application; (ii) the record; and (iii) any other information the commission considers necessary; the commission has concerns regarding the thoroughness or fairness of the investigation or hearing; (d) in the opinion of the commission, the disciplinary action imposed may not be comparable to disciplinary action imposed with respect to similar proceedings; or (e) there are any other grounds that the commission considers appropriate. 70(1) An appeal to the commission pursuant to this section shall proceed on the basis of the record unless the commission orders otherwise. (2) The commission shall cause all proceedings on an appeal pursuant to this section to be recorded. (9) All evidence heard before the commission or commissioner shall be taken under oath or affirmation. 71(1) On hearing an appeal pursuant to section 70, the commission may: (a) adjourn the appeal from time to time; (b) dismiss the appeal; (c) allow the appeal; (d) vary the decision or order; (e) order new hearing by the hearing officer. ... 72 Subject to subsection 71(5), every decision or order of the commission is final, and no order, decision or proceeding of the commission shall be questioned or reviewed, restrained or removed by prohibition, injunction, certiorari, mandamus or any other process or proceeding in any court. The Municipal Police Discipline Regulations, 1991, R.R.S. c. P-15.01, Reg. 4. 7(1) If the chief or member designated by the chief considers that discipline charge should be laid against member he or she will cause notice to be prepared in Form setting out the offence alleged to have been committed and advising the member that the hearing officer will notify the member of the date, time and place of the first hearing of the alleged offence. (2) Subject to subsection (3), the notice mentioned in subsection (1) is to be served on the member alleged to have committed the offence not less than 10 days before the day of the first hearing, and is to be accompanied by: (a) copies of the statements made by witnesses; (b) copy of the statement, if any, made by the member; and (c) list of the names of those witnesses who will be called. 23(1) Subject to subsections (1.1), (2) and (3), no proceedings to prosecute charge shall be commenced after the expiry of six months from the day on which the alleged charge should have been discovered. (3) Where matter has been referred to the minister or the Attorney General of Canada pursuant to section 47 or 51 or subsections 54(3) of the Act, proceedings to prosecute charge may be commenced within three months after the completion of the investigation by the minister or the Attorney General of Canada. APPROPRIATE REMEDY [10] The respondent submits the Court ought not to entertain the application as there is an adequate remedy, by way of appeal, provided for by the Act. In particular, the respondent argues the Court should decline to hear judicial review applications of interim decisions in discipline hearings. [11] The applicant argues that the fundamental questions to be addressed in this case revolve around issues of statutory interpretation that must be resolved on a standard of correctness. The alternative remedies are not adequate in the view of the applicant. [12] The leading case on this issue is Harelkin v. University of Saskatchewan, 1979 CanLII 18 (SCC), [1979] W.W.R. 676 (S.C.C.) which establishes the doctrine of the “adequate alternative remedy” as bar to judicial review. The existence of an adequate alternative remedy is held to constitute bar because judicial review is discretionary remedy. Thus, if an adequate alternative method of securing justice for the parties is available, it ought to be accessed. [13] Mr. Justice Beetz, writing for the majority, set out the test to be applied in making the determination of whether or not an alternative remedy is adequate in the following manner at 697: In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even better remedy than recourse to the courts by way of prerogative writs, several factors should have been taken into consideration, among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by body which was not professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors include the burden of previous finding, expeditiousness and costs. [14] In Bayne No. 371 (Rural Municipality) v. Saskatchewan Water Corp. (1990), 1990 CanLII 7675 (SK CA), 90 Sask. R. 102 (C.A.); 46 Admin. L.R. 23, the applicant municipality sought certiorari arguing the respondent had no jurisdiction over roads and had lost jurisdiction by not acting within statutory period. The statute in question contained broad right of appeal to the Water Appeal Board with further right of appeal on questions of law to the court. [15] Cameron J.A. found that even assuming the matter in issue did pertain to the jurisdiction of the Saskatchewan Water Corporation, certiorari is discretionary remedy. Provided right of appeal of sufficient scope and appropriate effect exists, alleged nullities can be challenged by that route. Where an adequate alternative remedy exists, special circumstances had to exist before court would award certiorari. [16] After reviewing the decision of the Supreme Court of Canada in Harelkin, supra, Cameron J.A. stated the following at 105: In light of the foregoing, we took Harelkin's case as standing for the following propositions: 1. Certiorari remains “a writ of grace” to grant or withhold as, in the discretion of the court, circumstances suggest. 2. If, in the circumstances right of appeal of sufficient scope and appropriate effect exists, then an order, even though it be nullity, is nevertheless appealable. 3. If the right of appeal provides an “adequate alternative remedy”, having regard for the considerations bearing upon that matter, the residual discretion in the court will ordinarily be exercised in denial of certiorari. Only if “special circumstances” are present will the courts then exercise their prerogative power and quash on certiorari. [17] In determining whether "special circumstances" exist, reference may be made to Gage v. Ontario (Attorney-General) (1992), 1992 CanLII 8517 (ON SCDC), 90 D.L.R. (4th) 537 (Ont. Ct. Gen.Div.). The court held at 553: The Act provides the applicant, if the board finds against him on the merits, with full right of appeal. It is the practice of this court to discourage premature applications for judicial review where there is an adequate alternative remedy by way of appeal. If there is prospect of real unfairness through denial of natural justice or otherwise, superior court may always exercise its inherent supervisory jurisdiction to put an end to the injustice before all the alternative remedies are exhausted: see, generally, Bell v. Ontario Human Rights Commission (1971), 1971 CanLII 195 (SCC), 18 D.L.R. (3d) 1, [1971] S.C.R. 756; Re Hayles and Sproule (1980), 1980 CanLII 1595 (ON SC), 29 O.R. (2d) 500 (Div. Ct.), per Callaghan J., at pp. 501-2. The board heard full evidence on the jurisdictional facts going to natural justice. That part of the record is complete and there is nothing to add. We are in as good position to deal with that issue as we would be on an appeal from the board. The unfairness in this case is so obvious that it would be inappropriate to put the officer through trial before tribunal that lost jurisdiction through denial of natural justice. Having regard to the prejudice noted above and the fundamental unfairness in the process of the commission, an appeal is not an adequate alternative remedy. This is one of those exceptional cases where the court should exercise its extraordinary jurisdiction at this stage to prevent further denial of natural justice. [18] The Supreme Court re-examined the issue in Matsqui Indian Band v. Canadian Pacific Ltd. 1995 CanLII 145 (SCC), [1995], C.N.L.R. 92. Lamer C.J. at 108-109 set out the factors to be considered in determining whether or not to enter into judicial review as follows: ... [T]he convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). do not believe that the category of factors should be closed, as it is for the courts in particular circumstances to isolate and balance the factors which are relevant. [19] The proposition that the courts should not entertain such an application where there is convenient alternative remedy provided in the Act has been accepted by this court in other challenges to police disciplinary proceedings. (See Romanuck v. Penkala and Henderson (1984), 1984 CanLII 2251 (SK QB), 35 Sask. R. 216 at 217-218 (Q.B.); affd (1987), 1987 CanLII 4911 (SK CA), 56 Sask. R. 27 at 34 (C.A.) and Shykitka v. Regina Police Service (1989), 1989 CanLII 4613 (SK QB), 79 Sask. R. 311 at 316 (Q.B.); affd (1990) 1990 CanLII 7733 (SK CA), 83 Sask. R. 70 (C.A.)). [20] In Selinger v. Chief of Police of Regina Police Service et al. (1998), 1998 CanLII 13967 (SK QB), 173 Sask. R. 40 (Q.B.), affd by the Saskatchewan Court of Appeal, March 9, 1999, McIntyre J. considered the same matters to which the applicant objects in this case as well as other issues. Mr. Justice McIntyre analysed the individual issues raised and held there was an adequate alternative remedy and found there to be no “special circumstances” upon which he would exercise his discretion to determine the merits of the application. am in substantial agreement with the decision of McIntyre J., which has been upheld by the Court of Appeal, and do not find there to be significant differences in the circumstances before me. [21] I find there is an adequate alternative remedy which should be pursued and find there to be no “special circumstances” upon which I would exercise my discretion to determine the merits of the application. In the exercise of my discretion, the application is dismissed.
The constable sought a writ of prohibition to prevent the respondent hearing officer from proceeding with the hearing into his conduct pursuant to discipline charges brought against him by the Chief of Police on the grounds there were contraventions of the Act, the Municipal Police Discipline Regulations and the rules of natural justice and the duty of fairness which resulted in the hearing officer having exceeded or lost jurisdiction to proceed with the hearing. He sought a declaration that a member of the police service must be informed of any investigation of his conduct prior to the commencement of the investigation as required by s.54 of the Police Act.; the Act does not permit the amendment in Form A discipline notice since it is a statutory form. The relief sought regarding disclosure had been abandoned by the applicant. The applicant argued that the fundamental questions to be addressed revolved around issues of statutory interpretation that must be resolved on a standard of correctness and the alternative remedies were not adequate. The respondent took the position that this Court should not entertain the application as there is a convenient alternative remedy provided in the Act by way of appeal to the provincial Police Commission; that the Chief was entitled to amend the notice and would be entitled to grant leave if required; the hearing officer erred in holding that s.54(1) of the Act requires notice of an internal investigation to be provided to the subject member. HELD: The application was dismissed. There is an adequate alternative remedy which should be pursued. There were no 'special circumstances' upon which the court should exercise its discretion to determine the merits of the application.