Articles of Interest

Update: Decision of the Federal Court in the Thériault Case

by Virginia Adamson, Legal Counsel
December 2004

On November 1, 2004 the Federal Court of Canada issued its decision in Thériault v. Canada ([2004] CF 1506). This case was summarized in the Communiqué of July - September 2003 (Committee's recommendation) and October - December 2003 (Commissioner's decision).

Background

Constable Thériault was alleged to have engaged in disgraceful conduct for managing a bar/restaurant that was frequented by criminal motor cycle gangs and for trying to facilitate a drug deal at this location. These events occurred in February and March 1999, while the bar was being monitored by an external police agency, and were immediately reported to the RCMP. The criminal operations officer (CROP) was immediately informed of the allegations but did not discuss them with the Commanding Officer (CO). Between May and September 1999, the CROP served as acting CO of the division for a few days or a few weeks at a time while the CO was absent. In November 1999, the CO was informed of the allegations and disciplinary proceedings were instituted in October 2000.

Under section 43(8) of the RCMP Act, disciplinary proceedings must be initiated within twelve months from the time the Appropriate Officer has learned of the allegations. According to the Commissioner's Standing Orders, the "Appropriate Officer" is defined as the Commanding Officer for the purposes of this provision. Section 43(8) reads:

(8) No hearing may be initiated by an appropriate officer under this section in respect of an alleged contravention of the Code of Conduct by a member after the expiration of one year from the time the contravention and the identity of that member became known to the appropriate officer.

At the Adjudication Board hearing, the member noted that the CROP was aware of the allegations of disgraceful conduct when he served as the acting CO of the division in May 1999. He argued that the limitation period in section 43(8) applies and that the CO did not comply with the one year time limit set out in the Act for instituting disciplinary proceedings. The Adjudication Board rejected this claim, because the CROP officer was not acting as CO of the division when he actually learned of the allegations. The Board ordered that the member resign within fourteen days, failing which he would be dismissed.

The member appealed the Board decision and argued that the limitation period for instituting disciplinary actions had expired. The CROP had known of the alleged misconduct for more than a year and could not disregard the knowledge he had of this when he became the CO on an acting basis. The Respondent disputed this argument and raised other procedural issues as well.

The External Review Committee recommended that the appeal be dismissed. The Committee stated that the CROP's knowledge of the allegations was not shared with the CO when he served in the position on an acting basis because he was assigned to that position for very short periods only and the position was not vacant. The Commissioner dismissed the appeal as recommended by the External Review Committee. He stated that the proceedings were initiated within the one year limitation period as set forth in section 43(8). He adopted the Board's analysis as to the statutory time requirement and the position of an acting CO.

Constable Thériault then made an application to Federal Court, asking that the Commissioner's decision be overturned. The application for judicial review was dismissed, with costs.

The Court stated that it does not matter whether the knowledge required to initiate a disciplinary proceeding comes from the actual CO or from an individual filling the role as an acting CO. In other words, an acting CO may initiate proceedings under section 43(8). The key issue has to do with the level of knowledge available to that person regarding the allegation. The Court found that in this case the CROP who had been acting CO from time to time, did not have sufficient knowledge to initiate a disciplinary proceeding.

In reaching this conclusion, the Court stated that the objective sought by legislators in section 43(8) of the RCMP Act was to find a balance between both speed and fairness in the treatment of disciplinary matters and the sound administration of disciplinary justice, and this includes a number of elements:

1. The requirement for an internal investigation when it appears to the Commanding Officer that a member has violated the Code of Conduct, to establish whether a contravention has occurred.
2. The requirement for an internal investigation to inform the CO of the serious nature of the contravention and its circumstances, to determine whether formal disciplinary measures are necessary.
3. The requirement for an internal investigation to ensure that there is sufficient and credible prima facie evidence that establishes that the essential elements of the Code of Conduct contravention are established.

In this case, the Court noted the CROP did not have the level of knowledge required to trigger the limitation period between May and October 1999, when he was serving as an acting CO. The Court stated that information that would have triggered the need to initiate a disciplinary proceeding became known to the CO in November 1999. Noting that there was no real dispute with regard to this, the Court concluded that the time limit had not expired.

This is the first Federal Court decision to specifically interpret section 43(8) of the RCMP Act and the issue of time limits for the initiation of disciplinary proceedings. This has been an area of considerable debate in the past. Previous External Review Committee recommendations and Commissioner decisions on the issue of the limitation period under section 43(8) have discussed many of the questions that arose in Thériault, including whether an acting CO can step into the position of the Appropriate Officer within the meaning of the provision; and what level of knowledge is necessary for the alleged contravention to become known to the CO, thereby causing the one year time period to begin to run. An appeal of the Thériault decision has recently been filed with the Federal Court of Appeal.