Articles of Interest

Update: Decision of the Federal Court in the Stenhouse Case

by Martin Griffin, Counsel
March 2004

On March 12, 2004, the Federal Court issued its decision in Stenhouse v. Canada [2004] FC 375, in which it allowed an application for judicial review by Staff Sergeant ("S/Sgt") Robert Stenhouse . The Stenhouse case was summarized in the Communiqué of April-June 2002 (Committee's Recommendations and Commissioner's Decision).

S/Sgt Stenhouse had shared confidential documents with an author about police strategies to investigate Organized Motorcycle Gangs (OMGs), documents which were later reproduced in a book. S/Sgt Stenhouse defended his actions as being designed to draw attention to a matter of legitimate public concern. An RCMP adjudication board (the "Board") found that one allegation of misconduct formulated against S/Sgt Stenhouse had been established. It concluded that, because S/Sgt Stenhouse disclosed information received from other law enforcement agencies, "the consequences would be observed at a higher level of the organization and more specifically in the forming of partnerships".

At the sanction hearing, S/Sgt Stenhouse maintained that he had believed that he was acting out of concern for the public interest, and he acknowledged that his disclosure had been an error in judgment, in that he had wrongly assumed that the documents would not be published. The Board ordered S/Sgt Stenhouse to resign from the Force within 14 days because it considered that he had failed to demonstrate that he was prepared "to fully embrace the values of the Force".

S/Sgt Stenhouse appealed the Board's decision, and the Commissioner referred the matter to the Committee.

Some time after the matter was referred, S/Sgt Stenhouse sought leave to present new evidence before the Committee, evidence which he had acquired pursuant to Access to information Act and Privacy Act applications. In his own words, this evidence would "demonstrate what can be argued to be a systemic fuelling of and 'conspiracy' of anger that took place amongst the investigator, the various line officers, the AOR, the Deputy Commissioner of the North West Region and the Commissioner of the RCMP" and which "caused for unprecedented influences, interest, and attempts to circumvent due process that took place in this case that bring into serious question the reasonable apprehension of bias argument". S/Sgt Stenhouse also raised the possibility of evidence being presented that the Commissioner had attempted to direct the outcome of the Board's hearing. Having reviewed S/Sgt Stenhouse's written submission on the relevancy of the new evidence, the Committee concluded that the evidence which S/Sgt Stenhouse sought to introduce was unlikely to influence the outcome of the appeal, and, in particular, the determination of the issue as to whether there was an abuse of process. The Committee found that the evidence did not appear to be relevant to the issue of whether anyone took specific actions calculated to impede S/Sgt Stenhouse's opportunity to make full answer and defence, or to the issue of investigatory bias. Nor was the Committee satisfied that S/Sgt Stenhouse actually had evidence which would establish that the Commissioner had attempted to influence the Board.

S/Sgt Stenhouse's request that the appeal not be adjudicated by the Commissioner, given his previous involvement in the matter, was also considered by the Committee. The Committee acknowledged that the Commissioner's previous involvement in S/Sgt Stenhouse's case might raise some concerns about his ability to hear the appeal in an impartial manner. However, it concluded that the RCMP Act was worded in such a way that only the Commissioner could adjudicate disciplinary appeals. Specifically, s.45.16 of the RCMP Act states that it is the Commissioner's responsibility to adjudicate an appeal of a Board's decision, and s.5(2) specifically precludes the Commissioner from delegating that responsibility.

The Committee then considered S/Sgt Stenhouse's argument that the Board should have dismissed the proceedings given the manner in which his case had been investigated and given the shortcomings in disclosure to him. The Committee found that the Board had correctly interpreted and applied the relevant case law on the issue of abuse of process, and that as imperfect as the process may have been, it had not deprived S/Sgt Stenhouse of the opportunity to make full answer and defence before the Board.

With regards to S/Sgt Stenhouse's argument that his actions should not have been found to be a violation of the Code of Conduct, the Committee found that S/Sgt Stenhouse's disclosure did not raise a matter of legitimate public concern. The documents that were disclosed did not lend support to his contention that strategies adopted to counter OMGs endangered public safety or were unethical. A reasonable person in a democratic society would not want RCMP members doing what S/Sgt Stenhouse had done, knowing just how damaging the repercussions of S/Sgt Stenhouse's actions might have been.

With regards to sanction, the Committee found that, although S\Sgt Stenhouse's positive carrer record with the RCMP was a relevant consideration, the Force could not be expected to retain a member whose understanding of the obligations which the duty of loyalty entails was somewhat limited and did not appear to be trustworthy.

The Committee recommended that the appeal be dismissed.

The Commissioner agreed with the Committee's findings and recommendations and dismissed the appeal. S/Sgt Stenhouse made an application to the Federal Court, asking that the Commissioner's decision be overturned.

The Court examined the Commissioner's ongoing involvement in S/Sgt Stenhouse's case. The Court concluded, without addressing sections 5.(2) and 45.16 of the RCMP Act, that "the accumulation of the Commissioner's past involvements and actions" in S/Sgt Stenhouse's case "cannot but give rise to a clear and obvious reasonable apprehension of bias" on the issues to be determined. The Court noted that the Commissioner had, since his decision in S/Sgt Stenhouse's case, decided to excuse himself from hearing another disciplinary appeal because of previous personal involvement in that case. According to the Court, the same rationale should have applied to S/Sgt Stenhouse's appeal. Because of a reasonable apprehension of bias, the Court set aside the Commissioner's decision.

The Court did not support S/Sgt Stenhouse's contention that the disciplinary proceeding was an abuse of process because of the way it was investigated and prosecuted, nor did it support his argument that the whistle-blowing defence applied in his case. With regards to the latter point, the Court found that the Committee had reasonably concluded that S/Sgt Stenhouse's disclosure did not fall within the "whistle-blowing defence", and it stated that:

While the freedom of public servants and, in the present case, members of the RCMP, to speak out is protected in common law and by the Charter, the "whistle-blowing" defence must be used responsibly. It is not a license for disgruntled employees to breach their common law duty of loyalty or their oath of secrecy. In this case, the confidential documents disclosed by the applicant reflected his disagreement with confidential RCMP policy on the allocation of resources to fight crime. The documents do not disclose either an illegal act by the RCMP or a practice or policy which endangers the life, health or safety of the public. The RCMP policy at issue involves the allocation of RCMP resources to fighting different types of crime - - a policy with which the applicant disagreed, but a confidential policy properly decided by senior RCMP management who know and understand the "big picture" of crime in Canada. Accordingly, while the court recognizes the important objectives served by the availability of the "whistle-blowing" defence, the court agrees that it does not apply in the present circumstances.

The Court found, however, that the RCMP had failed in its disclosure obligations, and that the Board had failed to take appropriate steps to require full disclosure to S/Sgt Stenhouse. Although these failures amounted to a breach of the rules of natural justice, the Court found that had the documents been disclosed, they would not have affected the outcome of the case, with one exception. The Court found that one document, referred to as the "Leatherdale Memo", might have affected the outcome with respect to appropriate sanction. The Court stated that:

I have concluded that the Leatherdale Memo would not have affected the decision of the Adjudication Board or the External Review Committee with respect to the "whistle-blowing" defence. However, the memo expresses a concern and empathy for the applicant and for the lack of action by RCMP superiors in dealing with the applicant's frustration, complaints and emotional break-down. In this sense, the document and its author, who probably would have been called as a witness, might have affected the sanction recommended by the Adjudication Board and the External Review Committee. Perhaps the Leatherdale Memo indicates that the RCMP did not properly consider or deal with the complaints and frustration expressed by the applicant, his emotional break-down or his attempt to resign. It is possible that the External Review Committee may find that the RCMP ought to have recognized the applicant was experiencing problems in relation to his job and borne some responsibility for helping the applicant, considering the applicant's stellar and unblemished eighteen year career with the RCMP. If the External Review Committee found that the RCMP breached its responsibilities in this regard, it may have found that this was a mitigating factor relevant to the appropriate sanction.

In that regard, and since it had set aside the Commissioner's decision, the Court referred the matter back to the External Review Committee to "consider the Leatherdale Memo in accordance with the Court's Reasons, and any relevant viva voce evidence with respect to the Leatherdale Memo, and further representations from the parties". Although the Court stated that this document should have been considered by the Committee when it received a request from S/Sgt Stenhouse to consider new evidence, it acknowledged that the Committee had no direct knowledge of its existence given the way in which the request was put forward:

Moreover, this document should also have been considered by the External Review Committee. However, the External Review Committee had no direct knowledge of this document since it was not identified by the applicant in his submission to the External Review Committee. The applicant asked the External Review Committee to allow the introduction of new evidence relevant to bias, abuse of process, denial of natural justice, and inadequate representation by his lawyer appointed by the RCMP. The applicant did not identify any document related to his "whistle-blowing" defence or to the appropriate sanction for his breach of conduct.

The Court directed the Committee to revise its report and recommendations in light of the new evidence. It also directed the Commissioner to delegate the appeal "to the most senior RCMP officer not involved in the case to decide the appeal after allowing the parties to make representations".