A-233-84
Terence Christopher Willette (Applicant)
v.
The Commissioner of the Royal Canadian Mount
ed Police (Respondent)
Court of Appeal, Heald, Urie and Stone JJ.—
Winnipeg, October 18; Ottawa, November 5,
1984.
Judicial review — Applications to review — R.C.M.P. —
Application to set aside decision discharging constable —
Applicant complaining case against him based on documentary
evidence so denied cross-examination — Discharge and
Demotion Board rejecting objection as procedure governed by
Commissioner's Standing Order, not requiring calling of wit
nesses and cross-examination — Board troubled by conflicting
evidence upon which findings and recommendation based —
Recommendation of discharge upheld by Board of Review
Appeal to Commissioner rejected — Innisfil (Corporation of
the Township) v. Corporation of the Township of Vespra et al.,
[1981] 2 S.C.R. 145 and Cheung v. Minister of Employment
and Immigration, [1981] 2 F.C. 764; (1981), 36 N.R. 563
(C.A.) considered — Trier of fact should resolve confusion in
evidence by any means available — Bulletin authorizing Board
to fill gaps in procedural rules and to request more complete
or specific evidence — Principles of natural justice contrav
ened in relying upon conflicting evidence — Board erred in
failing to call witnesses to testify and be cross-examined
Unnecessary to consider arguments based on Charter and
Canadian Bill of Rights — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 11 — Canadian
Bill of Rights, R.S.C. 1970, Appendix III, ss. 1(a), 2(d),(e).
Held, the application should be allowed.
See the Editor's note infra for a summary of the events
preceding this application for judicial review.
According to Halsbury's Laws of England, it is not a neces
sary ingredient of natural justice that one who has submitted
evidence in writing must be produced for cross-examination,
provided that the evidence is disclosed and an adequate oppor
tunity given to reply to it. However, the usefulness of cross-
examination in determining the truthfulness of a witness has
been attested to in numerous cases, and in texts on evidence. In
Innisfil (Corporation of the Township) v. Corporation of the
Township of Vespra et al., [1981] 2 S.C.R. 145, Estey J. stated
that "where the rights of the citizen are involved and the
statute affords him the right to a full hearing ... one would
expect to find the clearest statutory curtailment of the citizen's
right to meet the case made against him by cross-examination."
In Cheung v. Minister of Employment and Immigration,
[1981] 2 F.C. 764; (1981), 36 N.R. 563 (C.A.), Urie J. stated
that "it is incumbent upon the Adjudicator to be sure that he
bases his decision on the best evidence that the nature of the
case will allow. That ordinarily would require viva voce evi
dence in the proof of essential ingredients .... Only when it is
not possible to adduce that kind of primary evidence should
secondary evidence be relied upon."
The Board had to determine whether the applicant was guilty
as charged and whether to recommend his discharge. It had
first to discover what had happened, and in so doing decide
what evidence to accept or reject. Much of the evidence was
contradictory. The trier of fact should, if authorized by his
mandate, seek out by whatever means are available to him,
ways of clearing up confusion in the evidence. That includes the
calling of witnesses whose statements are conflicting. The
Board was also obliged to scrutinize its procedural rules to see
whether it had authority to arrange attendance of witnesses and
submit them to cross-examination. The Bulletin does in fact
provide the necessary authority. Paragraph 12.a.3. authorizes
the Board to fill gaps in its procedural rules, and paragraph
11.e. gives it authority to request that evidence contained in a
document "be made more complete or specific." Paragraph
11.f. gives the examiner wide latitude in cross-examination.
The respondent argues that the applicant could have called
these witnesses as his own. That would not provide an adequate
substitute for cross-examination. If anything, it might have
tilted the balance of advantage even more in favour of the
Commanding Officer, who would have gained an opportunity
of cross-examining witnesses, who were in substance his own.
The Board erred in failing to call the makers of the statements
to testify viva voce and be cross-examined. The Board's reliance
upon conflicting and contradictory evidence in finding facts and
credibility and in recommending discharge on the basis of those
findings contravened the principles of natural justice.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Cheung v. Minister of Employment and Immigration,
[1981] 2 F.C. 764; (1981), 36 N.R. 563 (C.A.); Innisfil
(Corporation of the Township) v. Corporation of the
Township of Vespra et al., [1981] 2 S.C.R. 145.
DISTINGUISHED:
Wilson v. Esquimalt and Nanaimo Railway Company,
[1922] 1 A.C. 202.
REFERRED TO:
Rex v. Simmons and Greenwood, [1923] 3 W.L.R. 749
(B.C.C.A.); Rex v. Anderson, [1938] 3 D.L.R. 317
(Man. C.A.); Mercantile and General Inventions v. Leh-
wess, [1935] A.C. 346.
COUNSEL:
Randolph B. McNicol and Louise A. Lamb
for applicant.
David G. Frayer, Q.C. and Harold Sandell
for respondent.
SOLICITORS:
Fillmore & Riley, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
STONE J.:
EDITOR'S NOTE
The Editor has chosen to omit the initial 14
pages of the judgment herein. This is a section 28
application to review and set aside a decision of
the Commissioner of the Royal Canadian Mounted
Police discharging a constable for "unsuitability".
He had been convicted in Provincial Court of
assault and intimidation, contrary to the Criminal
Code. His Commanding Officer did not, however,
rely upon these convictions but followed the
procedures prescribed for such cases by the
Commissioner. The applicant's principal com
plaint was that the case against him was based
entirely upon documentary evidence, much of it in
the form of unsworn statements. The applicant
was accordingly denied the opportunity of cross-
examination and it was argued that the principles
of natural justice had been contravened. The Dis
charge and Demotion Board rejected this objec
tion on the basis that its procedure was governed
by the Commissioner's Standing Order which did
not require the calling of witnesses and their
cross-examination. The Board recommended the
applicant's discharge. That decision was upheld
by a Board of Review and an appeal to the
Commissioner was rejected. A reading of its deci
sion revealed that the Board had been troubled
by the conflicting evidence upon which its findings
and recommendation were based.
I come now to consider the merits of the
application. Eight points of attack are raised
against the Commissioner's decision, seven of
which rely upon violations of rights enshrined in
the Charter [Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)] and the Canadian Bill of Rights [R.S.C.
1970,. Appendix III] and upon violation of the
principles of natural justice recognized at common
law. Sections 7 and 11 of the Charter read:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific
offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against
that person in respect of the offence;
(d) to be presumed innocent until proven guilty according to
law in a fair and public hearing by an independent and
impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried
before a military tribunal, to the benefit of trial by jury
where the maximum punishment for the offence is imprison
ment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission
unless, at the time of the act or omission, it constituted an
offence under Canadian or international law or was criminal
according to the general principles of law recognized by the
community , of nations;
(h) if finally acquitted of the offence, not to be tried for it
again and, if finally found guilty and punished for the
offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment for
the offence has been varied between the time of commission
and the time of sentencing, to the benefit of the lesser
punishment.
Paragraphs 1(a) and 2(d) and (e) of the Canadian
Bill of Rights provide:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be
deprived thereof except by due process of law;
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(d) authorize a court, tribunal, commission, board or other
authority to compel a person to give evidence if he is denied
counsel, protection against self crimination or other constitu
tional safeguards;
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
The applicant places particular reliance upon his
second and third points of attack which may be
conveniently repeated at this stage:
2. That as all of the evidence tendered against the applicant
was submitted in documentary form and as his accuser
called no witnesses to testify, the procedure before the
Discharge and Demotion Board contravened sections 7 and
11 of the Charter, the Bill of Rights and the principles of
natural justice.
3. That as the applicant was denied cross-examination of the
makers of several statements contained in the documen
tary evidence against him, the procedure before the Board
contravened sections 7 and 11 of the Charter, sections 1(a)
and 2(e) of the Bill of Rights and the principles of natural
justice.
He argues that even apart from the Charter and
the Canadian Bill of Rights he was deprived of a
right accorded by the principles of natural justice.
Basically, he claims, he was not afforded a fair
hearing in that the whole of the evidence against
him and relied upon by the Board was documen
tary and specifically that he was deprived of the
opportunity of cross-examining the makers of the
unsworn and, in two instances, unsigned state
ments. There is of course no need to explore
arguments based upon alleged violations of the
Charter of the Canadian Bill of Rights if, indeed,
I should conclude that the Board deprived the
applicant of a common law right recognized by the
principles of natural justice.
The Commissioner did not himself conduct the
hearing before the Board. The appeal to him, as it
was to the Board of Review, was on the basis of
the record produced by the Discharge and Demo
tion Board. He did not conduct a hearing de novo.
He was able to conclude, however, that "these
proceedings were conducted properly throughout
the investigation and at all levels of internal
administrative action". If, therefore, the Discharge
and Demotion Board erred in law by denying the
applicant a right enshrined in the Charter, in the
Canadian Bill of Rights or at common law with
respect to an aspect of the hearing, obviously the
Commissioner's decision would be tainted by that
error and be reviewable by this Court.
Did the Board violate the principles of natural
justice as the applicant claims in his second and
third points of attack? It is not a court of law. Its
procedures did not have to conform to those gov
erning civil or criminal trials in courts of law. Yet
it was invested with a power and responsibility of
determining matters of fact and law as to whether
the applicant had been involved in the commission
of crimes, the seriousness of those crimes and the
circumstances surrounding their commission. Its
role as the trier of fact was all-important. The
respondent argues that the Discharge and Demo
tion Board, in effect, went "by the book", by
faithfully adhering to its procedures as laid down
in the Bulletin. That being so, he argues, the
applicant cannot complain. The Bulletin did not
expressly require attendance at the hearing of the
statement makers, nor did it expressly accord the
applicant the opportunity of cross-examination.
Apparent support for the respondent's position
exists. Thus in Halsbury, 4th ed., vol. 1, para. 76,
at page 94 we find this statement:
... it is not a necessary ingredient of natural justice that one
who has submitted relevant evidence in writing or ex parte
must be produced for cross-examination, provided that the
evidence is disclosed and an adequate opportunity is given to
reply to it.
To the same effect is the judgment of Duff J.
sitting as a member of the Judicial Committee of
the Privy Council on an appeal from the Court of
Appeal for British Columbia in Wilson v.
Esquimalt and Nanaimo Railway Company,
[1922] 1 A.C. 202, at pages 212-213. There, how
ever, the decision of the Lieutenant-Governor of
British Columbia was required to be made upon
"reasonable proof" but without the necessity of
holding a hearing. That is not the case here.
The role of cross-examination has been
described by the learned editors of Wigmore on
Evidence, (Chadbourne Rev., 1974) vol. 5, at page
32, para. 1367, "as a vital feature of the law" and
as "the greatest legal engine ever invented for
discovery of truth". It has been observed that
while an untruthful witness may show no sign of
untruthfulness in his examination-in-chief yet
"under skillful cross-examination it may be dis
closed that he is unworthy of belief, that he is
affected by some motive or bias which wholly
destroys the value of his evidence" (per McPhillips
J.A. in Rex v. Simmons and Greenwood, [1923] 3
W.L.R. 749 (B.C.C.A.), at page 751); that cross-
examination is a "powerful weapon of defence, and
often its sole weapon" (per Dennistoun J.A. in Rex
v. Anderson, [1938] 3 D.L.R. 317 (Man. C.A.), at
page 319); and that it is a "powerful and valuable
weapon for the purpose of testing the veracity of a
witness and the accuracy and completeness of his
story" (per Lord Hanworth M.R. in Mercantile
and General Inventions v. Lehwess, [1935] A.C.
346, at page 359 as quoted by Viscount Sankey
L.C.).
When the Ontario Municipal Board denied a
party the opportunity of cross-examining a repre
sentative of a Minister of the Crown upon a letter
written by the Minister and relied upon by the
Board, the Supreme Court of Canada struck down
the decision as contravening a statutory as well as
a common law right enshrined in the principles of
natural justice. In that case, Innisfil (Corporation
of the Township) v. Corporation of the Township
of Vespra et al., [1981] 2 S.C.R. 145, Estey J.
stated (at pages 166-167):
It is within the context of a statutory process that it must be
noted that cross-examination is a vital element of the adversari-
al system applied and followed in our legal system, including, in
many instances, before administrative tribunals since the earli
est times. Indeed the adversarial system, founded on cross-
examination and the right to meet the case being made against
the litigant, civil or criminal, is the procedural substructure
upon which the common law itself has been built. That is not to
say that because our court system is founded upon these
institutions and procedures that administrative tribunals must
apply the same techniques. Indeed, there are many tribunals in
the modern community which do not follow the traditional
adversarial road. On the other hand, where the rights of the
citizen are involved and the statute affords him the right to a
full hearing, including a hearing of his demonstration of his
rights, one would expect to find the clearest statutory curtail
ment of the citizen's right to meet the case made against him
by cross-examination.
In Cheung v. Minister of Employment and Immi
gration, [1981] 2 F.C. 764; (1981), 36 N.R. 563
(C.A.) this Court set aside a decision of an
Adjudicator appointed under the provisions of the
Immigration Act, 1976, [S.C. 1976-77, c. 52]
refusing to allow the applicant to cross-examine
the author of a statutory declaration filed in evi
dence before him. Chief Justice Thurlow (at page
768 F.C.; at page 567 N.R.) considered that the
Adjudicator had "erred in law" while Mr. Justice
Heald (at page 770 F.C.; at page 569 N.R.)
considered it "essential that applicant's counsel be
given the opportunity to test and challenge" the
evidence by cross-examination. Mr. Justice Urie
expressed the following opinion (at page 772 F.C.;
at page 570 N.R.):
While it is true that the evidentiary rules applicable in trials
in courts of law need not be followed in inquiries with the
rigidity that is required in such courts and while an
Adjudicator is, by the Act, entitled to receive and base his
decision on evidence which he considers to be credible and
trustworthy, he ought to exercise great care in the weight which
he attaches to the kind of evidence tendered in this inquiry.
That is so because its purpose is to prove the essential ingredi
ents which must be proved to determine whether or not the
person concerned has violated some of the provisions of the Act
or of the Regulations. It is not desirable, or perhaps possible, to
formulate rules applicable in every case. However, as a first
principle, it seems to me that it is incumbent upon the
Adjudicator to be sure that he bases his decision on the best
evidence that the nature of the case will allow. That ordinarily
would require viva voce evidence in the proof of essential
ingredients, if it is at all possible. Only when it is not possible to
adduce that kind of primary evidence should secondary evi
dence be relied upon. The circumstances of each case will
dictate what evidence the Adjudicator will accept and the
weight which he will give to it.
As already noted the Board carried a particular
ly heavy responsibility. It had to determine wheth
er the applicant was guilty as charged by his
Commanding Officer and whether to recommend
his discharge from the R.C.M.P. Before recom
mending anything, however, it had first to discov
er, as best it could, what happened on June 10 and
11, 1982 and in so doing to decide what evidence
to accept or to reject. That task is not an easy one
even at the best of times where the evidence is all
in one direction and where no serious question of
credibility arises. It is an extremely difficult task,
in my judgment, where much of the relevant evi
dence is, as it was here, conflicting and contradic
tory. Then the trier of fact must take special care
lest a wrong conclusion be reached. He should, if
authorized by his mandate, seek out by whatever
means are available to him ways of clearing up
confusion in the evidence on essential points if that
can be done. That, to my mind, should include the
calling of witnesses whose statements are conflict
ing or contradictory.
The Board took the view that the procedures
contained in the Bulletin governed, that the appli
cant's complaint was essentially against those
procedures and, in effect, that the Board could do
nothing about them. "The bottom line of it" ruled
the Board "is ... AM-53 is the authority in law in
these proceedings and ... this Board feels obliged
to abide by it". With respect, having regard to the
evidentiary problems facing it, the Board was also
obliged to scrutinize its procedural rules with par
ticular care to see whether, in fact, it lacked
authority to arrange attendance of the absent wit
nesses and submit them to cross-examination. I am
quite satisfied from my reading of the Bulletin that
the necessary authority existed. Counsel agreed.
Paragraph 12.a.3. authorizes the Board to fill gaps
in its procedural rules, and by paragraph 11.e. it
had authority to request that evidence contained in
a document "be made more complete or specific".
Given that the statements were all unsworn and, in
two cases, unsigned, how better to make them
more complete or specific than to request their
makers to testify and submit to cross-examination.
The existence of authority to do so seems assumed
by a commentary in paragraph 13.b.5. of the
Rules of Practice and Procedure (Explanation),
where it is written:
13.b....
5. Additionally, should the Board have requested certain
witnesses, they will be excluded as well. The Board will
advise the members and the Force's representative why the
Board requested the attendance of certain witnesses and
where, in the order of the proceedings the Board will
"hear" from its witness(es).
NOTE: If the Board has called a witness, they should ask
their questions of him and then permit cross-examination
by both representatives. The Force's representative will
cross-examine first with the member's representative being
given the opportunity to cross-examine lastly.
Had the absent witnesses testified viva voce and
been cross-examined it might have ensured, to use
the language of the commentary appearing in
paragraph 8.d. of the Rules of Practice and Proce
dure (Explanation), that the Board was "fully
informed and aware of the full circumstances sur
rounding the incident in order to make a well
informed decision". The value and importance of
cross-examination seemed fully appreciated by the
Board itself for we find in another commentary
appearing in paragraph 11.f. of those Rules the
following:
In cross-examination, wide latitude is given to the cross-exam
iner, with few restrictions placed as to the questions asked and
the manner in which those questions are asked. Any question
which is material to the substantive issues or to the credibility
of a witness should be allowed ... The Board may ... restrict
cross-examination to what would reasonably be required for a
full and fair disclosure of the facts in relation to which evidence
has been given ....
The respondent argues that, had he wished to do
so, the applicant could have secured his rights by
calling these witnesses as his own with leave of the
Board. In my view this argument does not improve
the respondent's position. Certainly, I would not
regard that course as providing an adequate substi
tute for cross-examination. If anything, it might
have tilted the balance of advantage even more in
favour of the Commanding Officer who would
thereby have gained an opportunity which was not
sought but which was denied to the applicant, that
of cross-examining witnesses who, in substance,
were his own. In my judgment, in the circum
stances of this case where the evidence being relied
upon by the Board was, in its own words, "conflict-
ing and contradictory in many respects", it erred
in failing to do what it clearly had authority to do,
that is, calling the makers of the statements before
the hearing to testify viva voce and be cross-exam
ined. Many of those witnesses were members of
the R.C.M.P. and could have been directed to
attend. While the civilian witnesses fell outside its
control, the Board should have taken all reason
able steps to arrange their attendance. In these
circumstances, the Board's reliance upon conflict
ing and contradictory evidence in finding facts and
credibility and in recommending discharge on the
basis of those findings, contravened the principles
of natural justice. The applicant should have had a
full opportunity to make his defence if he has any.
The hearing lacked basic fairness in this regard.
The opportunity of testing the evidence should
have been afforded. Had the Board done so, it
would have been better able to decide the matter
in the light of the best evidence available.
Having concluded that the principles of natural
justice were infringed, it becomes unnecessary to
consider the applicant's remaining arguments
including those based upon the Charter and the
Canadian Bill of Rights.
For the above reasons, I would set aside the
decision of the Commissioner dated December 5,
1983 and would refer the matter back to him on
the basis firstly that a new review of the case
before a differently constituted Discharge and
Demotion Board be held and, secondly, that the
new review be conducted in accordance with the
principles of natural justice and in a manner not
inconsistent with the reasons for judgment.
URIE J.: I concur.
HEALD J.: I concur.
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