Bentley v. Braidwood,


2009 BCCA 604

Date: 20091229

Docket: CA037241; CA037246;



Docket No.:  CA037241


Constable William Bentley,
A Member of the Royal Canadian Mounted Police




Thomas R. Braidwood, Q.C., Commissioner and
Attorney General of British Columbia



Docket No.:  CA037246


Constable Kwesi Millington,
A Member of the Royal Canadian Mounted Police



Thomas R. Braidwood, Q.C., Commissioner and
Attorney General of British Columbia


Docket No.:  CA037251


Constable Gerry Rundel,
A Member of the Royal Canadian Mounted Police



Thomas R. Braidwood, Q.C., Commissioner and
Attorney General of British Columbia




The Honourable Madam Justice Saunders

The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Groberman

On Appeal from:  Supreme Court of British Columbia, July 17, 2009
(Rundel v. British Columbia – Braidwood Commission, 2009 BCSC 814,
Docket Nos. S09251, S09252, S09253 and S09377)

Counsel for the Appellant,
Cst. Bentley:

D. Butcher
A. Srivastava

Counsel for the Appellant,
Cst. Millington:

R. Hira, Q.C.
B. Morley

Counsel for the Appellant,
Cst. Rundel:

G. Beaubier

Counsel for the Respondent,
T. Braidwood, Q.C.:

P. McGowan
A. Vertlieb, Q.C.

Counsel for the Respondent,
Attorney General of British Columbia:

C. Jones
K. Wolfe

Place and Date of Hearing:

Vancouver, British Columbia

December 4, 2009

Place and Date of Judgment:

Vancouver, British Columbia

December 29, 2009


Written Reasons by:

The Honourable Madam Justice Saunders

Concurred in by:

The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Groberman

Reasons for Judgment of the Honourable Madam Justice Saunders:

[1]             This appeal concerns the jurisdiction of Thomas R. Braidwood, Q.C., Commissioner, to issue Notices of Misconduct to the appellants advising them he may make certain findings affecting them, in the course of issuing his report on the death of Robert Dziekanski. They appeal from the order of Mr. Justice Silverman dismissing their petitions for judicial review in which they sought to quash the Notices of Misconduct, to prohibit and enjoin the Commissioner from making such findings, and, in the alternative, to receive further particulars of the potential findings that could be made against them.

[2]             The roots of this appeal lie in the events of October 14, 2007. In the early hours of that day, Mr. Dziekanski, a new arrival to Canada, died in the International Lounge of the Vancouver International Airport. His death followed the deployment of a conducted energy weapon by a member of the Royal Canadian Mounted Police, one of four officers who responded to a call from the airport for assistance.

[3]             The Province of British Columbia appointed Thomas R. Braidwood, Q.C. a Commission under the Public Inquiry Act, S.B.C. 2007, c. 9 to inquire into and report on the death of Mr. Dziekanski.

[4]             The Commissioner heard evidence from 87 witnesses between January 19 and May 26, 2009, including from the four officers who attended at the Vancouver International Airport on October 14, 2007 in response to the airport’s call.

[5]             On April 30, 2009 documents entitled “Notice of Misconduct” signed by the Commissioner were delivered to each of the four officers. Although individually crafted to each recipient, the notices bear common hallmarks: they were delivered on a confidential basis; they state “the Commissioner may make” certain findings that “may amount to misconduct within the meaning of s. 21 of the [Public Inquiry] Act”; they contain some common allegations; and, after listing the allegations in relation to the recipient, they advise it is possible another participant may “make one or more allegations of misconduct against you,” in which case the recipient will have an opportunity to respond.

[6]             Each of the four officers demanded particulars of the misconduct alleged and the standard against which it would be measured. The Commissioner issued a ruling on the notices, at that stage confidential, in the main concluding the Notices of Misconduct were sufficiently particularized with the exception of one allegation, which he more clearly defined.

[7]             The Notices of Misconduct as amended contain four allegations common to all appellants, with the Notice of Misconduct directed to Constable Millington containing three additional allegations. Mr. Justice Silverman accurately described all the allegations at issue by paraphrasing them at para. 17:

1.         failing to properly assess and respond to the circumstances faced in relation to Mr. Dziekanski;

2.         deploying the taser in circumstances that did not justify such deployment;

3.         after deploying it, failing to adequately reassess the situation before further deploying it;

4.         making further deployments of the instrument when they were not justified in the circumstances;

5.         misrepresenting facts in notes and statements which had been made;

6.         misrepresenting facts in evidence given before the Commission;

7.         providing misleading information of the witness’ notes and statements in the evidence before the Commission.

[8]             The four officers each applied to the Commissioner to quash their Notice of Misconduct. When those applications were dismissed, each officer commenced a proceeding under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 to quash the Notice. The petitions sought orders in the nature of certiorari and prohibition, injunctions, declarations and orders in the nature of mandamus compelling production of particulars.

[9]             On June 15, 2009 Mr. Justice Silverman dismissed the petitions.

[10]         In this appeal three of the officers, the appellants Constables Millington, Bentley and Rundel, contend the judge erred in failing to quash the Notices of Misconduct. They say the Notices of Misconduct are beyond the jurisdiction of the Commissioner because:

1.       the allegations require an analysis of their conduct against criminal law standards, and thereby infringe upon federal jurisdiction over criminal law; and

2.       the allegations require an analysis of their conduct measured against RCMP training and policy, and thereby infringe upon federal jurisdiction to manage and administer the RCMP, and to discipline members of the RCMP.

[11]         The appellants further contend Mr. Justice Silverman erred in declining to compel further particulars of the allegations set out in the Notices of Misconduct.

New Evidence

[12]         In support of the appeal the appellants seek to adduce new evidence. The Commissioner also applies to adduce new evidence. The new evidence is a transcript of some of the proceedings before Mr. Justice Silverman, and evidence of submissions and further proceedings before the Commissioner subsequent to the Supreme Court of British Columbia hearing, including those addressing the Notices of Misconduct.

[13]         Strictly speaking, I do not consider the new evidence meets the criteria for admission set out in cases such as Scott v. Scott, 2006 BCCA 504, 61 B.C.L.R. (4th) 9. It is not capable of affecting the appeal, which may be fully answered on the record as it now stands. In particular, I would not rely upon the appellants’ submissions as evidence that particulars are, or are not, required. To do so is to delve more deeply into the Commission’s workings than is appropriate for this Court. The appeal must be resolved, in my view, on the material that was before Mr. Justice Silverman.

[14]         I would dismiss the applications to adduce new evidence.

The Statutory Framework For the Commission

[15]         The Commission is proceeding under the authority of the Public Inquiry Act. Section 9 of that Act provides:

9(1)      Subject to this Act and the commission's terms of reference, a commission has the power to control its own processes and may make directives respecting practice and procedure to facilitate the just and timely fulfillment of its duties.


   (5)     A commission may make an order in respect of any matter for which a directive has been made, or may be made, under this Act.

[16]         Section 11 of the Act provides for participation in these terms.

11(1)    A person may act as a participant if the person

(a) is provided with notice under subsection (2), or

(b) is accepted as a participant under subsection (4).

     (2)   If a hearing commission intends to make a finding of misconduct against a person, or intends to make a report that alleges misconduct by a person, the hearing commission must first provide the person with

(a) reasonable notice of the allegations against that person, and

(b) notice of how that person may respond to the allegations.

     (3)   A person other than one described in subsection (2) may apply to be a participant by applying to a commission in the manner and form it requires.

     (4)   On receiving an application under subsection (3), a commission may accept the applicant as a participant after considering all of the following:

(a) whether, and to what extent, the person's interests may be affected by the findings of the commission;

(b) whether the person's participation would further the conduct of the inquiry;

(c) whether the person's participation would contribute to the fairness of the inquiry.

[17]         Section 12 sets out powers of the Commission in respect to persons who are participants under s. 11 of the Act:

12(1)    Subject to section 13 [rights of participants], a commission may make orders respecting

(a) the manner and extent of a participant's participation,

(b) the rights and responsibilities of a participant, if any, and

(c) any limits or conditions on a participant's participation.

    (2)    In making an order under subsection (1), a commission may

(a) make different orders for different participants or classes of participants, and

(b) waive or modify one or more of its orders as necessary.

     (3)   In making an order under subsection (1), a hearing commission must ensure that a participant who responds to a notice under section 11 (2) has a reasonable opportunity to be heard by the commission before the commission makes a finding of misconduct against the participant, or makes a report that alleges misconduct by that participant.

[18]         Section 13 protects participants and prevents their evidence from being used in subsequent proceedings:

13(1)    A participant may

(a) participate on his or her own behalf, or

(b) be represented by counsel or, with the approval of the commission, by an agent.

     (2)   A participant

(a) has the same immunities as a witness who appears before the court, and

(b) is considered to have objected to answering any question that may

(i)  incriminate the participant in a criminal proceeding, or

(ii)  establish the participant's liability in a civil proceeding.

     (3)   Any answer provided by a participant before a commission must not be used or admitted in evidence against the participant in any trial or other proceedings, other than a prosecution for perjury in respect of the answer provided.

[19]         Section 21, referred to in the Notices of Misconduct, provides:

21(1)    Subject to this Act and the commission's terms of reference, a hearing commission may engage in any activity necessary to effectively and efficiently fulfill the duties of the commission, including doing any of the following:

(a) issuing directives respecting any of the matters set out in subsection (2);

(b) holding written, oral and electronic hearings;

(c) receiving submissions and evidence under oath or affirmation;

(d) making a finding of misconduct against a person, or making a report that alleges misconduct by a person.


[20]         Each appellant applied to be and was accepted as a participant pursuant to ss. 11(3) and (4) of the Act.

[21]         The parties have all proceeded on the basis the Notices of Misconduct were issued in compliance with s. 11 of the Act.


1.  Jurisdiction

[22]         I turn to the issues. First is the jurisdiction of the Commissioner to make findings in the terms posited in the Notices of Misconduct. The appellants advance two propositions: that the Notices of Misconduct reflect an exercise in criminal law beyond the jurisdiction of a provincially appointed commission, and that they reflect an exercise that interferes with the management or administration of a federally created agency, the Royal Canadian Mounted Police, also beyond the jurisdiction of a provincially appointed commission.

[23]         The Commissioner concluded in his ruling that his Notices of Misconduct did not stray beyond his jurisdiction. Mr. Justice Silverman agreed. In reaching this determination Mr. Justice Silverman concluded the standard of review he must bring to the issue of jurisdiction was correctness. Applying this standard, he found the Commissioner was correct in ruling that the issuance of the notices was within the commission’s jurisdiction.

[24]         In matters of jurisdiction, the standard is, as confirmed in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, correctness, and Mr. Justice Silverman applied the proper standard. The question for us then is whether he was correct in his conclusion that the Notices of Misconduct are within the constitutional jurisdiction of the Commission.

a)  Do the Notices of Misconduct Infringe Federal Jurisdiction Over Criminal Law and Procedure?

[25]         The Commissioner addressed the appellants’ complaint that his Notices of Misconduct trench upon the federal power over criminal law and procedure, concluding that even if the “misconduct” described in the notices is substantiated, they would not equate to a finding of criminal liability. At his para. 37 he said:

It is important to bear in mind the purpose underlying these allegations. I have neither the mandate nor desire to make determinations respecting whether the Applicant committed one or more criminal offences. These allegations are made in order to give the Applicant reasonable notice that I may make findings respecting his credibility, and the basis for any such findings. I am satisfied that the allegations have been drafted in a manner that is consistent with the principles enunciated in Krever, supra, including Cory J.’s statement that “commissioners should not be expected to perform linguistic contortions to avoid language that might conceivably be interpreted as imparting a legal finding” (para. 52).

[26]         Consideration of the constitutionality of the Notices of Misconduct must start, I consider, with recognition that both levels of government have some authority over matters related to criminal justice. By s. 92(14) of the Constitution Act the province is assigned authority over the “administration of justice” within the province, and by s. 92(16) over matters of a “merely local or private nature”. On the other hand, by s. 91(27) the federal government is assigned authority over the criminal law including procedure in criminal matters.

[27]         The appellants contend the Notices of Misconduct demonstrate that the Commissioner will be determining whether the appellants have committed a criminal offence, and thus evince more than an incidental effect on the criminal law power. While the appellants do not contest the terms of reference of the Commission, they say that in framing the Notices of Misconduct the Commissioner has stepped off his constitutionally permitted ground and strayed impermissibly onto exclusive federal territory. They say Mr. Justice Silverman erred in law in failing to recognize this essential characteristic of the notices, and they urge this Court to correct that error. In making this submission they rely upon Re Nelles and Grange (1984), 46 O.R. (2d) 210, 9 D.L.R. (4th) 79 (C.A.) and Starr v. Houlden, [1990] 1 S.C.R. 1366, 68 D.L.R. (4th) 641.

[28]         The respondents defend the Notices of Misconduct, submitting they do not engage the Commissioner in the sort of inquiry found to be unconstitutional in Nelles and Starr. Rather, they submit, the notices are properly within the Commissioner’s mandate as set out, in a constitutionally correct fashion, in his terms of reference. They say this appeal is analogous to cases such as O’Hara v. British Columbia, [1987] 2 S.C.R. 591, 45 D.L.R. (4th) 527, Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440, 151 D.L.R. (4th) 1 (“Krever”), Phillips v. Nova Scotia (Commission of Inquiry into the Westray Min Tragedy), [1995] 2 S.C.R. 97, 124 D.L.R. (4th) 129, and Consortium Developments (Clearwater) Ltd. v. Sarnia (City), [1998] 3 S.C.R. 3, 165 D.L.R. (4th) 25.

[29]         The commission of inquiry considered in Nelles was established to determine who was responsible for infant deaths at the Hospital for Sick Children in Toronto. The inquiry was formed after a prosecution in relation to some of the deaths had failed at the preliminary inquiry stage and while police investigation into the deaths continued. The terms of reference of the commission authorized the commissioner to inquire into and report on how the infants died without expressing a conclusion of law on criminal or civil liability. The commissioner stated a question for the court, asking whether he could express an opinion that the death of a child was the result of any named person. The Ontario Court of Appeal held the commissioner could not do so. In reaching this conclusion the court focused upon the consequences that would flow on the naming of a person as having administered a lethal dose of digoxin to the infants.

[30]         In Starr the commission of inquiry was constituted by the Province of Ontario to inquire into the relationship between a named person and other parties including elected and unelected public officers, in language akin to that in the Criminal Code. The Supreme Court of Canada held the commission of inquiry was devoid of any broad policy basis and was rather, in pith and substance, a substitute police investigation and preliminary inquiry into a specific offence defined in the Criminal Code. Consequently, the Court held, the commission of inquiry was ultra vires the province. In his reasons for judgment for the majority Justice Lamer observed at 1401-02:

... the pith and substance of a commission must be firmly anchored to a provincial head of power, and that it cannot be used either purposely or through its effect, as a means to investigate and determine the criminal responsibility of specific individuals for specific offences.

[31]         Between Nelles and Starr the Supreme Court of Canada rendered judgment in O’Hara, a case addressing the scope of a provincial commissioner’s inquiry into injuries sustained by a person while in police custody. There Chief Justice Dickson for the majority of the Court said at 610:

... A province has a valid and legitimate constitutional interest in determining the nature, source and reasons for inappropriate and possibly criminal activities engaged in by members of police forces under its jurisdiction. At stake is the management of the means by which justice is administered in the province. That such activity may later form the basis of a criminal charge and thus engage federal interests in criminal law and criminal procedure, does not, in my view, undermine this basic principle.

[32]         In Krever the Supreme Court of Canada again addressed the jurisdiction of a commission of inquiry. In reasons for judgment for the court, Justice Cory said at paras. 43-44, with reference to Nelles:

... The appellants rely upon this statement to support their position that a commissioner cannot make findings which would appear in the eyes of the public to be determinations of legal liability.

I cannot accept this position. The test set out above is appropriate when dealing with commissions investigating a particular crime. However, it should not be applied to inquiries which are engaged in a wider investigation, such as that of the tragedy presented in this case. I agree with the Federal Court of Appeal that if the comments made in Nelles were taken as a legal principle of law applicable to every inquiry, the task of many if not most commissions of inquiry would be rendered impossible.

Justice Cory observed that the court in Nelles “clearly viewed the proceedings as tantamount to a preliminary inquiry into a specific crime” and stated Starr could be similarly distinguished. At para. 47 he said:

Clearly, those two inquiries were unique. They dealt with specific incidents and specific individuals, during the course of criminal investigations. Their findings would inevitably reflect adversely on individuals or parties and could well be interpreted as findings of liability by some members of the public. In those circumstances, it was appropriate to adopt a strict test to protect those who might be the subject of criminal investigations. However, those commissions were very different from broad inquiries such as an investigation into the contamination of Canada's blood system, as presented in this case.

Last, he concluded at para. 51:

Clearly, the findings that may be made in Phillips and that were made in O'Hara and Keable would fail the strict test set out in Nelles and referred to in Starr. Yet each of these commissioners has made or may make findings of misconduct, as authorized by the Act. This they could not and cannot do without stating findings of fact that are likely to have an adverse effect on the reputation of individuals. Nonetheless, the inquiries were upheld by this Court. It follows that the strict test advanced by the appellants cannot be of general application. A more flexible approach must be taken in cases where inquiries are general in nature, and are established for a valid public purpose and not as a means of furthering a criminal investigation.

[33]         In Phillips a challenge was brought to a provincially constituted inquiry on the basis that certain compellable witnesses were, at the time of the inquiry, facing criminal charges for failing to oversee proper safety practices. The Court allowed the inquiry to proceed even though the criminal proceedings were not concluded.

[34]         The themes from Krever were reiterated in Consortium Developments, with the Supreme Court of Canada addressing the issue of public inquiries, in a case concerning a municipally authorized judicial inquiry into alleged conflicts of interest and irregularities in certain land transactions. The Court commented upon the exceptional nature of Starr, and affirmed the broad scope generally given to provincial inquiries.

[35]         There are, in an inquiry into events such as these, several relationships, several applicable standards, and several consequences to be appreciated by the Commissioner, with the Commissioner understanding he may speak on some relationships, some standards and some consequences, but not on others. There is, for example, and focusing here only on the appellants to the exclusion of other persons who have a direct interest in the outcome of the inquiry such as airport personnel and immigration officials: the relationship between the appellants and the state as reflected in criminal law; the relationship between the appellants and the Royal Canadian Mounted Police as reflected in their employment and professional relationship; the relationship between the appellants and those present during the incident including Mr. Dziekanski and his family; and the relationship between the appellants and the community, including in the term ‘community’ the appellants themselves.

[36]         Applicable to those relationships is the criminal law, employment law, civil law, statutory authority, and the general moral standards of the community. Consequences to the appellants directly arising from such matters may range from legal consequences under the criminal law, civil law, and employment law, to non-legal but important consequences through gathered experience and education, and moral and ethical growth. Consequences to the community may be broad or narrow, depending upon the wisdom that may be gleaned and reported by the Commissioner and appreciated by the community.

[37]         Yet language, flexible and nuanced as it is, does not arrogate words of general application to any one relationship or standard. So, for example, ”misconduct”, without more, may suggest a number of things: a failure to comport with the standard considered, or a performance default that may lead to discipline, or a default that may attract liability.

[38]         A description of possible findings in common, non-technical language as was provided here in the Notices of Misconduct, does not transmute a public inquiry into a criminal investigation, or a public inquiry process into an end-run around criminal procedure. It is the substance of the inquiry and the scope of possible findings that are relevant to the determination of the vires of the Commissioner’s action, viewing the matter from the attitude that where, as here, the challenge is anticipatory, the Commissioner will adhere to his jurisdiction.

[39]         The substance of the allegations are summarized above. For the purposes of argument it was suggested that findings by the Commissioner in the terms set out in the allegations will be tantamount to findings of criminal conduct. Having reviewed their language, I do not see such an equivalency and I reject that characterization.

[40]         The Commissioner is charged with making a full report on the circumstances of Mr. Dziekanski’s death. Inherently in that process he must assess credibility of witnesses where evidence conflicts, and as part of his responsibility to his terms of reference, make comment on material conflicts in the evidence. Further, as his inquiry is made in the interests of administration of justice, it seems to me he is entitled to comment, if comment be warranted, on the response of public officials to the events and to his process, thereby to advance the public interest of confidence in the administration of justice.

[41]         There is, as well, an aspect of speculation that hovers over this submission. By the terms of his ruling the Commissioner has demonstrated awareness of his constitutional limitations. He expressed again his view, set out in the Notices of Misconduct themselves, that they give notice only of the potential for adverse findings, providing the recipient the opportunity to make comment before he prepares his report.

[42]         At this stage of the inquiry process I consider any review of the ruling of the Commissioner should proceed on the basis he will keep within the boundaries he accurately has described.

[43]         I would not accede to the appellants’ submissions on jurisdiction as it relates to the criminal law power.

b)  Do the Notices of Misconduct Infringe Federal Powers Over the Royal Canadian Mounted Police?

[44]         The RCMP in British Columbia has a contract with British Columbia to act as the provincial police force, and to act as the municipal police in most municipalities. The four officers were acting under that contract when they responded to the airport’s call on the night of Mr. Dziekanski’s death.

[45]         Policing, in general, is a matter assigned to provincial jurisdiction by s. 92(14) of the Constitution Act. To the extent, however, that the provincial function is performed by the RCMP, a police force created by federal legislation (the Royal Canadian Mounted Police Act, R.S. 1985, c. R-10), the province is limited from interfering in or directing its management or administration: Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218, 90 D.L.R. (3d) 161; Attorney General of Alberta v. Putnam, [1981] 2 S.C.R. 267, 123 D.L.R. (3d) 257.

[46]         In Keable the Supreme Court of Canada addressed the constitutional competence of a province to investigate and report on allegedly illegal or reprehensible incidents or acts involving various police forces, including the RCMP, associated with events in Quebec in October 1972. Relying upon Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152, 73 D.L.R. (3d) 491, Faber v. The Queen, [1976] 2 S.C.R. 9, 65 D.L.R. (3d) 423 and R. v. Coote (1873), L.R. 4 P.C. 599, Justice Pigeon, writing for the majority, affirmed provincial competency to establish a commission to report on matters of general scope but held the authority did not extend to intrusion into RCMP management, saying at p. 242:

... Parliament's authority for the establishment of this force and its management as part of the Government of Canada is unquestioned. It is therefore clear that no provincial authority may intrude into its management. While members of the force enjoy no immunity from the criminal law and the jurisdiction of the proper provincial authorities to investigate and prosecute criminal acts committed by any of them as by any other person, these authorities cannot, under the guise of carrying on such investigations, pursue the inquiry into the administration and management of the force.

[47]         In Putnam the Supreme Court of Canada again addressed provincial competence in respect to the RCMP, this time in a situation where the RCMP acted as the police force pursuant to an agreement between the municipality of Wetaskiwin, Alberta and the federal government. An issue arose concerning the applicability of a citizen’s complaint procedure under the provincial Police Act to the RCMP. The Supreme Court of Canada held the provincial complaint procedure did not apply to the RCMP because it interfered with federal disciplinary control of the force. At p. 278 Chief Justice Laskin, writing for the majority, referred to Keable, saying:

I should like to say, before disposing of this appeal, that I recognize that there is a provincial interest in policing arrangements under this or any other contract between the Province and the R.C.M.P. The Province, by this contract, has simply made an en bloc arrangement for the provision of policing services by the engagement of the federal force rather than establishing its own force directly or through a municipal institution. The performance of the parties under the agreement of their respective roles is, of course, a matter of continuing interest to the parties if for no other reason than the constant contemplation of renewal negotiations. The Province of Alberta, for example, must have a valid concern in the efficacy of the arrangement, not only from an economic or efficiency viewpoint, but also from the point of view of the relationship between the Government of Alberta through its policing arrangements and the community which is the beneficiary of those police service arrangements. This, however, is a far cry from the right of one contracting party to invade the organization adopted by the other contracting party in the delivery of the services contracted for under the arrangement. This is so apart altogether from any constitutional impediment so clearly raised here as it was in Keable, supra. I say this not so as to narrow the impact of the observations on the issue directly raised in this appeal, but to contrast the position of the R.C.M.P. as a federal institution with the provincial interest in the provision of policing services throughout the Province. ...

[48]         In this case the Commissioner, in his ruling on the appellants’ applications to quash the Notices of Misconduct, recognized the limitations on provincial authority to interfere with RCMP administration. He said:

51.       In my view, an allegation of misconduct respecting the Applicant’s notes, statements to investigators or evidence given at the Commission are not an intrusion into the management and supervision of the RCMP. In Keable, the Court struck down the phrase “and the frequency of their use” where it appeared in the inquiry’s terms of reference, because it would have required an inquiry into the methods used by the RCMP, which are essential aspects of its administration. No such inquiry into the RCMP’s management or administration is contemplated in this commission of inquiry. We are embarked on a narrowly-focused inquiry into the events at the Vancouver International Airport on October 13/14, 2007, leading to the death of Mr. Dziekanski. The Applicant and the three other officers are compellable witnesses as to what they said and did that evening. As with any witness, they may be examined as to what are alleged to be prior inconsistent statements, and I must take all that evidence into account in determining what happened.

[49]         Mr. Justice Silverman, approved the Commissioner’s view on this issue:

[54]      ... In other words, he understands that there are aspects of the RCMP, particularly those of a management or supervisory nature, which are within federal jurisdiction. He goes on to express the view, that in this case the allegations of misconduct are not an intrusion into the management and supervision of the RCMP.

[50]         I agree with both the Commissioner and Mr. Justice Silverman that the Notices of Misconduct do not tread impermissibly into management or administration of the RCMP.

[51]         The Public Inquiry Act under which the Commission is established expressly permits a commissioner to report on misconduct. In my view, the larger view of the administration of justice permits a provincially appointed commission to reflect on matters that bear upon public confidence in the administration of justice of which the response of the police officers in this situation is a significant consideration. As Mr. Justice Silverman observed, the terms of reference of the commission are broad and engage more than an inquiry into the validity of actions taken by the four police officers who attended. Although the actions of the officers are a critical component to understanding the events, the inquiry is neither a discipline investigation nor an inquiry into RCMP policies or training.

[52]         Again, in his ruling, the Commissioner has demonstrated an appreciation of the limit upon his constitutional authority arising from the character of the officers as members of the RCMP. I would not anticipate he will stray over that line of demarcation, and I see no basis upon which to interfere, for reasons associated with the federal nature of the RCMP, with the order of Mr. Justice Silverman.

[53]         We are urged by the appellants to view the Supreme Court of Canada jurisprudence as reserving more latitude for a provincially appointed commission to inquire into matters involving an agency within provincial power, than exists to consider matters involving a federal agency.

[54]         It seems to me the jurisprudence cannot be stated so simply or the cases distinguished on this basis. Any analysis must be directed to the substance of the Commission’s action or anticipated action in order to determine its vires. Thus, as demonstrated by the cases I have referred to, a provincial inquiry may not be engaged as an alternate to the criminal procedures provided by the federal government. Nor may a provincial inquiry trench upon areas of management or administration of a federal agency. However, where such a direct focus or effect is not present, I see no basis on which to curtail what is otherwise a proper inquiry directed by the Province, under the terms of valid provincial legislation enacted under the province’s constitutional authority over the administration of justice in the province.

[55]         Accordingly, I see no basis upon which to interfere with the order declining to interfere with the Notices of Misconduct for jurisdictional reasons.

2.  The Issue of Particulars

[56]         In the alternative, the appellants contend the Commissioner failed to provide adequate particulars. (As submissions have now been made by the appellants to the Commission absent particulars, they seek an order prohibiting the Commissioner from making any findings of misconduct against them.)

[57]         In his reasons for judgment Mr. Justice Silverman suggested the Commissioner’s ruling on the applications for more particulars should be reviewed on a reasonableness standard, but held that in any event the Commissioner’s decision on the issue was correct. In the course of reaching that conclusion he observed:

[34]      In my view, the fact that the petitioners were represented by counsel, throughout the proceedings and heard, either themselves or by other agents sitting in for them, all of the evidence or have a transcript available to them of all of the evidence from the witnesses at the inquiry, those factors fall into and must be considered in light of the comments I have just referred to from Morneault.  That is, the question of whether a reasonable person has been given enough information to know what aspect of his or her conduct the decision-maker is considering.  Again, these witnesses know everything about the evidence that the Commissioner knows, since they have heard or have available to them all of the evidence.  In some circumstances, that may not be sufficient, and it is never going to be a complete answer to such an application for particulars in every case because the question of particulars and what will be reasonable notice will vary with the circumstances of the case.

[58]         The appellants contend Mr. Justice Silverman erred in finding the standard of review was reasonableness, and in finding his decision was both reasonable and correct. They contend the Commissioner was required to provide procedural fairness, and that he was required to be correct in his view of the need for particulars considering the high value that is placed on procedural fairness. They contend further that the allegations did not meet the requirements set out in Krever and Morneault v. Canada (Attorney General) (1998), 150 F.T.R. 28, 10 Admin L.R. (3d) 251 (F.C.) rev’d in part (2000), [2001] 1 F.C. 30, 189 D.L.R. (4th) 96 (C.A.), because the Notices of Misconduct are not “as detailed as possible”.

[59]         There is difficulty in applying the language of standard of review, ‘correctness’ and ‘reasonableness’, to issues of procedural fairness. Whether the tribunal has the alleged duty, in respect to procedural fairness, is a matter on which the courts have the final say. However, subject to any express statutory requirements, a tribunal typically enjoys broad discretion as to how it will fulfill the requirements of procedural fairness, and there will rarely be a single correct answer.

[60]         This distinction is important to an understanding of this Court’s treatment of the issue in Martin v. Vancouver (City), 2008 BCCA 197, 293 D.L.R. (4th) 37. In Martin Madam Justice Levine said, concerning a challenge to rescission of appointments of the City of Vancouver Board of Variance, at para. 46:

The abolition of the “patent unreasonableness” standard of review by the Supreme Court of Canada in Dunsmuir does not change the analysis of the issues arising on this appeal.  The issues before the chambers judge were matters of jurisdiction, procedural fairness, and bad faith.  On any analysis, the proper standard of review by a reviewing court for such issues is correctness.  The chambers judge did not expressly refer to the standard of review, but he properly applied the correctness standard.

[61]         That statement, made in the context of a case in which the issue was whether the City was required to give notice and an opportunity to be heard, did not address the degree of the duty, but rather the existence of the alleged duty.

[62]         In the case before us, where there is a statutory duty (in s. 11) to provide a notice of misconduct, the real question for a reviewing court is whether the notice reviewed is sufficient to provide the procedural fairness required.

[63]         On that question, Mr. Justice Silverman, having recognized the discretion available to the Commissioner in constructing the Notices, found that the Commissioner’s decision on their content was correct in that enough had been provided to permit the recipients to respond. To focus on Mr. Justice Silverman’s tentative articulation of the standard of review, therefore, is to take something of a side trail, and I turn accordingly to his conclusion that enough was said in the Notices to fulfill their purpose.

[64]         The basis for notices of jeopardy is discussed at length in Krever. Describing the content of procedural fairness in the setting of a broad ranging inquiry, where there are no parties as in civil and criminal proceedings, where civil and criminal responsibility may not be determined, and yet where damage to reputation or interests may be inflicted, the Supreme Court of Canada emphasized the high importance of procedural fairness. It then applied that principle of fairness to the issue of notices of misconduct. (Such notices were statutorily required in Krever by s. 13 of the Inquiries Act, R.S.C. 1985, c. 1-11, just as they are mandated here by s. 11 of the Public Inquiries Act). Justice Cory made this comprehensive statement on the content of notices at para. 56:

That same principle of fairness must be extended to the notices pertaining to misconduct required by s. 13 of the Inquiries Act. A commission is required to give parties a notice warning of potential findings of misconduct which may be made against them in the final report. As long as the notices are issued in confidence to the party receiving them, they should not be subject to as strict a degree of scrutiny as the formal findings. This is because the purpose of issuing notices is to allow parties to prepare for or respond to any possible findings of misconduct which may be made against them. The more detail included in the notice, the greater the assistance it will be to the party. In addition, the only harm which could be caused by the issuing of detailed notices would be to a party's reputation. But so long as notices are released only to the party against whom the finding may be made, this cannot be an issue. The only way the public could find out about the alleged misconduct is if the party receiving the notice chose to make it public, and thus any harm to reputation would be of its own doing. Therefore, in fairness to witnesses or parties who may be the subject of findings of misconduct, the notices should be as detailed as possible. Even if the content of the notice appears to amount to a finding that would exceed the jurisdiction of the commissioner, that does not mean that the final, publicized findings will do so. It must be assumed, unless the final report demonstrates otherwise, that commissioners will not exceed their jurisdiction.

[65]         The appellants have invoked Morneault in support of their submission the notices were inadequate. In Morneault the notices contained certain references to transcripts, but the report of the commission found misconduct beyond those references. On an application to quash certain findings, the Federal Court found reasonable notice had not been provided, and declared the findings of misconduct invalid. The Federal Court of Appeal overturned this finding, holding sufficient notice was provided.

[66]         The appellants refer to Morneault as an example of the particulars required in order to withstand scrutiny for procedural fairness.

[67]         In my view, Mr. Justice Silverman demonstrated no error in concluding the Notices of Misconduct provided sufficient particulars to withstand the appellants’ challenge.

[68]         It is instructive, as observed by the Attorney General in his factum, that Mr. Justice Cory in Krever approved a notice of misconduct in terms more terse and more generalized than the Notices of Misconduct issued in this case. I do not propose to compare each allegation of the impugned notices. However it is useful to compare a notice approved in Krever to one of the allegations that the appellants contend is insufficient. In Krever that notice provided:

1.         After becoming aware in 1982 and thereafter of the possibility or likelihood that its factor concentrates transmitted the causative agent of AIDS, Baxter failed to take adequate steps to notify consumers and physicians of the risks associated with the use of its products and to advise that they consider alternative therapies.

[69]         In the case at bar an allegation common to all appellants is:

2.         In the notes you made and the statements you gave to IHIT investigators regarding your interaction with Mr. Dziekanski, you misrepresented Mr. Dziekanski’s behaviours and the manner in which events unfolded at the Airport on the morning of October 14, 2007, for the purpose of justifying your actions and those of your fellow officers.

[70]         The allegation in this case appears to be more precise and more directed than the notice in Krever. The notice in this case focuses upon two aspects: the recipient’s notes and their statements to investigators as to events that occurred in a limited number of minutes. The record of the inquiry reveals intensive cross examination on both aspects. It appears to me the Notices of Misconduct are sufficient to direct the recipient to the area of their evidence, and the potential reputational effect the report may have on him, for the purpose of making a full submission.

[71]         Likewise the other allegations in the Notices of Misconduct of behaviours or actions, up to the time of the appellants’ participation in the inquiry hearings, are each directed to a particular aspect of behaviour in respect to a time-limited occurrence, and each describes the potential adverse conclusion that may be drawn. The first set of allegations, directed to all appellants, concern behaviour of the officers upon arrival at the airport – allegations of failing to make the proper assessment of circumstances, of failing to obtain information about Mr. Dziekanski from people in the vicinity, of failing to develop an appropriate plan of action, of acting inappropriately aggressively in their initial approach to Mr. Dziekanski and of failing to take reasonable steps to restrain him at specific moments in time. The allegations unique to Constable Millington all concern his actions in deploying the conducted energy weapon and appear to be directed to discrete portions of the short time of police interaction with Mr. Dziekanski. The appellants were all directed to these events in their testimony. It appears to me the appellants and their counsel would be fully capable of appreciating these specific allegations so as to make a full response.

[72]         There are two further allegations in the Notices of Misconduct, one relating to the testimony of the appellants concerning Mr. Dziekanski’s behaviour and one relating to the testimony of the appellants concerning the notes and statements they made before the hearing.

[73]         The appellants testified at length concerning the events. I see no prospect they could be unclear as to those portions of their evidence that may attract analysis on the issues described in the Notices of Misconduct.

[74]         Counsel for Constable Millington also contends that the Commissioner’s reasons on his ruling on his application for particulars are insufficient. With respect, this complaint does not address the relief sought. The Commissioner issued the Notices of Misconduct and decided in his ruling they were, in the main, sufficient. The appellants, as they were entitled, challenged the Notices of Misconduct. In the course of doing so they referred to the ruling of the Commissioner, but it seems to me the niceties of the ruling is not the focus of the petition, rather the focus is the Notices of Misconduct. It is the order of Mr. Justice Silverman dismissing the petition that is appealed. As I have explained above, I see no basis upon which Mr. Justice Silverman should have interfered with the Notices of Misconduct issued by the Commissioner as failing to satisfy the principle of procedural fairness.


[75]         I would dismiss the appeals and all applications to adduce new evidence.

“The Honourable Madam Justice Saunders”


“The Honourable Mr. Justice Chiasson”


“The Honourable Mr. Justice Groberman”