How Soon Can the Courts Intervene in Police Disciplinary Proceedings?

courts

Grimsmo v. Jones, 2021 BCSC says Not Until Police Act Processes have Concluded

Overview:

Courts in British Columbia often describe the Police Act as dense and complicated while at the same time recognizing the broad discretion the legislature afforded the Police Complaint Commissioner (PCC) over discipline procedures for police officers throughout the province. The courts agree the legislature established a comprehensive process for police oversight that leaves very little room for court intervention except in certain circumstances.

So when will a court intervene in disciplinary proceedings against a police officer under the Police Act? For example, can the court intervene to have a discipline authority (DA) removed before the discipline proceeding runs its course? Can the court intervene on the basis that a reasonable apprehension of bias is said to exist against the police officer who is subject to the discipline proceeding? These are the issues Madam Justice Baker of the Supreme Court of British Columbia was asked to consider in a recent judicial review of a decision by DA Chief Officer David Jones of the Metro Vancouver Transit Police.

Factual Background:

Cst. Grimsmo and Cst. Nicholson worked together as members of the Abbotsford Police Department (APD). On May 5, 2013, Cst. Nicholson was arrested and subsequently charged for various criminal offences including breach of trust, obstruction of justice, and conspiracy to traffic a controlled substance. The APD requested that a Police Act investigation be conducted into Cst. Nicholson’s conduct and Chief Officer Jones was appointed to act as DA in relation to the investigation.

During the investigation, allegations of misconduct were identified against Cst. Grimsmo and a separate investigation was commenced in relation to his conduct. Following the investigations, Cst. Nicholson and Cst. Grimsmo were alleged to have acted together in committing misconduct contrary to the Police Act, based primarily on statements by JA, a confidential informant handled by Cst. Nicholson and Cst. Grimsmo. DA Jones was appointed as DA over both discipline proceedings, which proceeded separately. RCMP Sgt. Wellard investigated the allegations against Cst. Nicholson and RCMP Cpl. Murdy investigated those against Cst. Grimsmo.

On April 10, 2019, Sgt. Wellard submitted a Final Investigation report (FIR) regarding the six allegations against Cst. Nicholson. On April 18, 2019, DA Jones determined, in relation to Cst. Nicholson, there was sufficient evidence in the FIR to support a finding that five of the six allegations of misconduct could be substantiated. He directed that discipline proceedings be commenced in accordance with the Police Act.

On April 10, 2019, Cpl Murdy submitted a FIR to DA Jones regarding the allegations against Cst. Grimsmo. At that time, Cst. Grimsmo had not provided a statement because of health issues he was facing. On May 13, 2019, Cpl. Murdy submitted a supplemental FIR that included a statement from Cst. Grimsmo. Based upon her review of the statement, Cpl. Murdy felt the evidence was unclear as to the following material allegations:

(a) Cst. Grimsmo enhanced his personal and professional reputation by directing the confidential informant JA into actions against the law and contrary to APD policy to produce results that would benefit him or his career;

(b) Cst. Grimsmo was with Cst. Nicholson when Cst. Nicholson facilitated the drug trafficking to a named party; and

(c) Cst. Grimsmo used his position as a police officer to influence JA to facilitate an unauthorized trafficking of a controlled drug and substance to produce tangible results to benefit himself or his career (corrupt practice and neglect of duty).

On May 22, 2019, DA Jones determined sufficient evidence was presented with respect to three allegations of misconduct against Cst. Grimsmo. He directed that a hearing be convened. Two of the allegations in the Notice of Discipline Proceeding were identical to allegations of corrupt practices advanced in Cst. Nicholson’s case.

The Discipline Proceedings:

Cst. Nicholson’s discipline hearing was set to begin on June 5, 2019. Cst. Nicholson denied all allegations against him. Cst. Nicholson stopped participating in the hearing before it was complete and the proceedings continued in his absence pursuant to section 130 of the Police Act. The evidence presented at the proceeding consisted of the evidence contained in an Affidavit sworn by Sgt. Wellard. On January 10, 2020, DA Jones determined the allegations against Cst. Nicholson were substantiated and recommended that Cst. Nicholson’s employment with the APD be terminated.

Cst. Grimsmo’s discipline hearing began on July 10, 2019 but was adjourned from time-to-time due to Cst. Grimsmo’s health issues. On March 19, 2020, Cst. Grimsmo appeared at the hearing by video to formally deny the allegations against him. On May 11, 2020, following a request from his counsel, he learned Cst. Nicholson’s discipline hearing had concluded.

The Recusal Application:

On June 8, 2020, Cst. Grimsmo asked DA Jones for a hearing to determine whether DA Jones should recuse himself on the basis that, in Cst. Grimsmo’s view, there was a reasonable apprehension of bias on the part of DA Jones because he had already determined the allegations against Cst. Nicholson. Cst. Grimsmo argued Cst. Nicholson’s case involved the same issues of fact, based on the same evidence, including the evidence of JA. DA Jones heard the recusal application in July 2020.

On August 14, 2020, DA Jones issued his decision finding that no reasonable apprehension of bias existed in respect of Cst. Grimsmo’s proceedings (the DA’s Decision). After receiving the DA’s Decision, Cst. Grimsmo wrote to the PCC asking that he assign a different DA to hear the allegations against him, again arguing that a reasonable apprehension of bias existed. The PCC denied Cst. Grimsmo’s request. Cst. Grimsmo filed a petition for judicial review of the DA’s Decision but not the PCC’s decision.

Cst. Grimsmo’s Petition was Premature:

In its reasons for judgment dismissing the petition, the Court reiterated that judicial review prior to the conclusion of an administrative proceeding is only permitted in exceptional circumstances. Generally, parties must exhaust their rights and remedies under the administrative process before pursuing recourse to the courts.  The Court emphasized this is an extremely high bar. Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or consent by all parties are not sufficient to establish exceptional circumstances as long as the administrative process allows the issues to be raised and an effective remedy to be granted. Early judicial intervention risks depriving a reviewing court a full record, and allows judicial imposition of a correctness standard, wherein if decided by a tribunal, the decision might have been entitled deference, and encourages an inefficient multiplicity of proceedings.

With respect to police discipline inquiries, the Court cited prior case law which had already established that where a petitioner raises an allegation of bias, the court retains discretion as to whether or not it should require the applicant to proceed through the administrative process. The exercise of a court’s discretion requires weighing, on the one hand, possible hardships to the applicant because of time and resources wasted if the bias question is not determined prior to the proceeding before the adjudicator. On the other hand, there are negative consequences to delaying the administrative process, countenancing a multiplicity of litigation and permitting a short circuiting of a process specifically designed by the legislature for disciplinary complaints. The six factors to be considered in determining whether a judicial review should be permitted before the conclusion of an administrative process are: hardship to the applicant; waste; delay; fragmentation; strength of the case; and, statutory context.

Hardship to the Applicant

Cst. Grimsmo argued hardship and prejudice considerations, among others, were present in his case and, as such, that his circumstances justified judicial intervention. In support of his position, he relied on evidence from two medical doctors about the impact the hearing might have on his health if he was required to proceed without early judicial intervention. The Court reviewed the letters and concluded they did not support Cst. Grimsmo’s position that exceptional circumstances existed in his case. The Court was not satisfied Cst. Grimsmo had established his health issues prevented him from continuing with the hearing and process as set out in the Police Act. Importantly, the Court found the DA’s Decision (i.e. the decision under review) was unrelated to Cst. Grimsmo’s health and, in any event, the letters were equivocal as to the impact the hearing would ultimately have on him. There was no evidence the provided accommodations were insufficient to address Cst. Grimsmo’s health issues.

Waste of Time and Resources and Delay

The Court emphasized that within the Police Act, there is a full mechanism for review before an independent adjudicator if Cst. Grimsmo is not satisfied with DA Jones’ final decision. In that regard, time spent calling evidence before DA Jones would not be wasted as the decision could be reviewed, either by way of a public hearing or a review on the record. This would be in accordance with the regime established by the legislature.

Fragmentation

The Court held that fragmentation was a significant issue in Cst. Grimsmo’s case. The Police Act sets out an extensive process to address allegations of misconduct. Within that process, specific decisions are made by the PCC and DA at various points in time. These processes are part of an integrated whole, which is vulnerable to being fragmented if members are permitted to bring judicial review on decisions made prior to the completion of the processes. In Cst. Grimsmo’s case, if the Court were to make a decision on judicial review, there would not be a final disposition of the issues. Rather, the process would start back at the beginning and the door would be opened to further judicial review applications.

Strength of Case

The Court was not satisfied that the allegations of bias advanced by Cst. Grimsmo were so clear cut that exceptional circumstances were met. Generally, a reasonable apprehension of bias will be found if the court is satisfied that an informed person, viewing a matter realistically and practically, would conclude there is a real likelihood of bias. In the recusal decision, DA Jones concluded the facts in relation to the Cst. Nicholson matter were “such that a reasonably, well informed person would comprehend that there are significant differences in the process, circumstances and material evidence” the petitioner was facing. In addition, Cst. Grimsmo, in contrast to Cst. Nicholson, was mounting a defence. While Cst. Grimsmo advanced a reasonable case, the Court also accepted that the DA Jones’ assessment was reasonable.

Statutory Context

In its reasons, the Court once again affirmed that the Police Act is a complete code with respect to reviews of decisions of discipline authorities. The PCC in the first instance determines if a review is appropriate, and if it is, determines the method of review. On either type of review, the adjudicator is an independent retired judge. The PCC is vested with the authority to determine public interest in the disciplinary process and, in this case, the PCC declined Cst. Grimsmo’s request to appoint a new DA but Cst. Grimsmo did not seek judicial review of that decision. In essence, Cst. Grimsmo was asking the Court for an outcome that would contradict the PCC’s early decision, without having directly attacked that decision. In the result, the Court determined it would be improper to subvert the carefully crafted comprehensive legislative regime by allowing Cst. Grimsmo to proceed with a judicial review before his hearing concluded; before DA Jones had rendered a decision; before Cst. Grimsmo had availed himself of the reviews under the Police Act; and, in direct contradiction of the PCC’s decision not to appoint a new DA.

Summary:

The Court’s decision, in this case, reiterates that but for exceptional circumstances, courts will not interfere with decisions made pursuant to the authority set out in the Police Act until after the processes established by the legislature have run their course. Interested parties can expect the courts to give effect to the time honoured principle that a tribunal is a master of its process and that the tribunal will fulfill its statutory assigned obligations. Intervening before these processes run their course frustrates a tribunal’s mandate and the legislative purpose of the process at issue. Absent exceptional circumstances, an extremely high bar to meet, courts will not interfere on judicial review if a petition is premature.

For any questions relating to the article, please contact David McKnight or Naomi Krueger.

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