REGULATED OCCUPATIONS - Occupations - Police officers

Appeal by the Attorney General from a decision allowing a former RCMP constable’s application for judicial review of a Probationary Review Officer's decision affirming his discharge for unsuitability. The respondent was recruited by the Royal Canadian Mounted Police (RCMP) in November 2010 in conjunction with a campaign to hire visible minorities. The respondent completed a cadet training program in May 2011 and became a probationary regular member of the RCMP. His training continued through a field coaching program. During the program, the respondent was involved in a number of incidents that formed the basis of his discharge. The incidents included incomplete or copied written work, a failure to properly document and log evidence, failure to carry out duties, improper use of a police database for non-duty related purposes, and untruthfulness to other members of the RCMP. His competencies assessment report included ratings of “unacceptable” and “needs improvement”. In October 2011, the respondent was removed from operational duties and investigated, resulting in a finding that he breached the Code of Conduct. Disciplinary proceedings led to a finding of unsuitability. The respondent sought judicial review. The Federal Court allowed the respondent’s application for judicial review. It found that the Probationary Review Officer (Officer) unreasonably used an unsuitability finding in place of a disciplinary sanction and in so doing deprived the respondent of procedural protections and fairness in the form of a disciplinary hearing. The Court found that the process conflated incidents involving a failure to perform duties with incidents demonstrating dishonesty and lack of integrity. The Court further found that the Officer erred in finding that unsuitability included breaches of the Code of Conduct, as it was of the view that the scope of s. 45.18(1) of Part V of the Royal Canadian Mounted Police Act (Act) was limited to performance and nothing more. On appeal, the issue was whether the respondent’s conduct should have been the subject of an oral hearing under Part IV of the Act (disciplinary action) instead of being reviewed under Part V of the Act (management right to dismiss on grounds of unsuitability).

HELD: Appeal allowed. The decision of the Federal Court was set aside and the application for judicial review was dismissed. The Federal Court mischaracterized the main issue before it and applied the wrong standard of review. The proper standard of review was reasonableness and the Officer’s interpretation of s. 45.18(1) was reasonable. Determining whether the core values of honesty and integrity were an integral part of the manner in which a member of the RCMP was required to perform his or her duty as a probationary member was at the core of the expertise of the specialized decision-maker. The officer considered and explained why such values must necessarily be included as part of the performance evaluation of a probationary member (or any member of the RCMP). It was clear from his reasons, and the evidentiary record supported the finding, that when the performance of cadets, probationary members and members of the RCMP were evaluated, the analysis invariably included those core values. A probationary member was treated the same way as all other members of the RCMP unless, because of repeated failures to perform in a manner fitted to his duties during the first two years on the force, and having benefited from reasonable assistance, guidance and supervision, there were grounds to consider that he may not be “suitable” for a position as a member of the RCMP.

Herrera-Morales v. Canada (Attorney General), [2017] F.C.J. No. 779, Federal Court of Appeal, M. Nadon, E.R. Dawson and J. Gauthier JJ.A., August 1, 2017. Digest No. TLD-August212017003