Articles of Interest
Jaworski v. Canada (Attorney General), [2000] F.C.J. No. 643
by Caroline Maynard, Counsel
June 2000
In 1996, an adjudication board found that Constable Alexander Jaworski had conducted
himself in a disgraceful manner that had brought discredit to the Force. Cst. Jaworski
had been identified by a witness as the man she had seen committing an indecent
act in a public place. Cst. Jaworski always denied that he was the man, and claimed
to have been the victim of misidentification. The adjudication board found the eye-witness
reliable and ordered Cst. Jaworski to resign on pain of dismissal. Cst. Jaworski
appealed the decision to the Commissioner. The Committee reviewed the appeal and
found a number of errors in the identification practices used in determining whether
Cst. Jaworski was the person observed by the eye-witness. The Committee recommended
that the appeal be upheld and that the allegation be dismissed. The Commissioner
did not agree with the Committee's recommendation and dismissed the appeal. The
Commissioner concluded that the board's decision was reasonable based on the totality
of the evidence. Cst. Jaworski applied to the Federal Court Trial Division for review
of the Commissioner's decision.
The Trial Division concluded that the board's decision, which the Commissioner had
adopted, contained no reviewable error. The Trial Division also dealt with an issue
concerning the extent of the Commissioner's statutory duty to provide reasons when
he has not acted on the Committee's recommendations. The Motion Judge concluded
that the Commissioner's reasons were adequate. Cst. Jaworski then appealed to the
Federal Court of Appeal.
In its review of the case, the Court summarized the evidence that had been presented
to the adjudication board and outlined the Committee's criticisms of the board's
decision. The Court identified two issues: the first being whether the Commissioner
committed a reviewable error in upholding the adjudication board's decision; the
second being whether the Commissioner's reasons were sufficient to satisfy his statutory
duty to give reasons.
Concerning the first issue, the Court noted that in order for the Commissioner's
decision to be set aside, Cst. Jaworski had to demonstrate that the decision was
based "on an erroneous finding of fact that it made in a perverse and capricious
manner and without regard for the material before it". The Court also reaffirmed
the principle that the standard of proof for disciplinary cases is not as onerous
as for criminal matters, and described the burden of proof for serious sexual misconduct
as "at the upper limit of the burden of proof". The Court found that the probative
value of the identification evidence before the board "despite its limitations"was
appreciable, and that the circumstantial evidence was considerable. It therefore
concluded that the board's decision was not "perverse and capricious, or made without
regard to the material before it".
Concerning the second issue, the Court noted that the Commissioner had not addressed
any of the Committee's criticisms of the board's decision. However, the Court of
Appeal found that since the Commissioner had adopted the board's decision, which
was fully reasoned, this was enough to meet his general duty to provide reasons.
The Court also found that the Commissioner's decision was sufficient to understand
why he did not accept the Committee's recommendation. It stated:
I read his reasons as in effect saying that, in concentrating its attention on the
pieces of evidence individually, the Committee lost sight of the big picture. In
contrast, the board considered the evidence as a whole and based its decision on
the totality of the material before it, without at the same time ignoring the weaknesses
of some of its component parts. In these circumstances, the Commissioner was not
required to rebut each of the points on which the Committee had taken issue with
the board.
Consequently, the Court found no reason to set aside the Commissioner's decision
and dismissed Cst. Jaworski's appeal.