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NATURAL JUSTICE - Duty of fairness

Wednesday, September 09, 2020 @ 6:14 AM  


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Appeal by the Police Commissioner from a decision allowing the respondent’s application for judicial review and quashing the commissioner’s 2017 decision ordering a public inquiry following lengthy disciplinary proceedings. The judge found the commissioner’s decision was an abuse of process given the delay involved and unreasonable. The respondent was a member of the Transit Police. In 2011 he violently assaulted the complainant suspected of fare evasion. The respondent subsequently made unfounded allegations against the complainant and eventually pleaded guilty to assault causing bodily harm.

HELD: Appeal allowed. The delay in this case did not meet the high standard of abuse of process. The judge erred in assuming that the Police Act provided for a six-month process. The Act clearly contemplated further time-consuming steps, including requests by members for further investigation, and the discipline proceeding itself which could be followed by a review and a public hearing. The judge also failed to consider the suspension of the administrative proceedings for two and a half years while the criminal charges proceeded and failed to recognize that the proceedings unfolded in accordance with the complex procedures provided for in the Act. Even accepting the judge’s finding that the respondent experienced prejudice due to delay rather than the nature of the allegations, his circumstances did not reach the significant level of personal and psychological stress required to establish an abuse of process. The judge considered the prejudice to the respondent in the context of the public interest in a fair administrative process but did not balance that interest against the competing public interest in having the incident reviewed at a public hearing. The public interest in having the complaint addressed in full in accordance with the civilian police oversight provisions of the Act was significant in this case. The need for fairness in the administrative process did not outweigh the public interest in the public hearing proceeding. Section 138 of the Act directed that the commissioner must arrange a public hearing if he considered there was a reasonable basis to believe that findings or penalties were incorrect or that a hearing was necessary in the public interest. The commissioner’s decision in this regard was entitled to considerable deference. It could not be said that the direction to hold a public hearing in the circumstances of this case was an unreasonable one.

Diaz-Rodriguez v. British Columbia (Police Complaint Commissioner), [2020] B.C.J. No. 1193, British Columbia Court of Appeal, H. Groberman, L.A. Fenlon and J. DeWitt-Van Oosten JJ.A., July 30, 2020. Digest No. TLD-September72020005