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REGULATED OCCUPATIONS - Arbitration - Occupations - Police officers - Duties - Offences - Contravention of statute or regulation

Monday, December 18, 2017 @ 12:36 PM  

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Appeal by the New Brunswick Police Commission (Commission) from a judicial review judgment which quashed an arbitrator’s decision ordering the removal of the respondent, Constable Smiley, from his position as a City of Fredericton Police officer. Smiley was charged with assault under the Criminal Code. In connection with that charge, he executed an undertaking to abstain from possessing firearms and to surrender to the Fredericton Police Force any firearm in his possession. The assault charge was withdrawn by the Crown prior to trial, but Smiley was charged with breaching his undertaking. The breach charge was dismissed at trial in December 2014. Smiley was served in March 2014 with a Notification of Substance of Conduct Complaint under the Police Act regarding a complaint made against him by the Chief of Police. The Commission took over the processing of the complaint and appointed Scribner to investigate. Based on Scribner’s report, the Commission determined there was sufficient evidence to establish that Smiley had breached the Code of Professional Conduct (Code). When the parties failed to reach a settlement, an arbitration was commenced. Smiley was charged with four counts of breaching the Code. The allegations concerned discreditable conduct relating to incidents of domestic violence by Smiley against his common law partner, breaches of his undertaking and improper use of and care of firearms. The arbitrator held that all four counts were made out. He imposed a disciplinary order and terminated the respondent's employment with the Fredericton Police Force. On judicial review, the arbitrator’s award was quashed because no analysis was conducted with respect to possible disciplinary or corrective measures that could have been taken as alternatives to Smiley’s dismissal. The judge noted that Smiley’s service record was not discussed, and that no explanation was provided as to why no disposition other than dismissal was considered. Smiley cross-appealed from the judge’s finding that the arbitrator reasonably concluded that the misconduct allegations themselves were made out on the record.

HELD: Appeal allowed. Cross-appeal dismissed. The reviewing judge was in error when she quashed the arbitrator's decision on the basis that his reasons for imposing the sanction of dismissal were inadequate. Although the arbitrator’s reasons for imposing dismissal as a sanction were not perfect, they were adequate, and there was a rational connection between the evidence before the arbitrator, the arguments presented and the decision rendered. Had the judge looked as the arbitrator’s decision as a whole, she would have concluded that the decision to impose dismissal was clearly in the range of possible, reasonable outcomes. Further, the reviewing judge was not in error when she found the arbitrator's conclusions, with respect to findings of misconduct, to be reasonable. The Code applied to Smiley both on and off duty. The act of domestic violence he perpetrated, giving rise to the assault charge, constituted discreditable conduct. The two firearms counts, including possessing a firearm without a licence and careless storage, applied to Smiley’s personal weapons and not just his service firearm.

Smiley v. New Brunswick Police Commission, [2017] N.B.J. No. 294, New Brunswick Court of Appeal, B.V. Green, B.L. Baird and R.T. French JJ.A., November 23, 2017. Digest No. TLD-December182017002