2010 QCCA 2371, 2010 QCCA 2371

Unofficial English Translation Simard c. Vien 2010 QCCA 2371 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-021063-102 (500-17-047765-097) DATE: December 20, 2010 PRESIDING: THE HONOURABLE JACQUES DUFRESNE, J.A. CLAUDE SIMARD, in his capacity as Police Ethics Commissioner APPLICANT – Plaintiff v.

SERGE VIEN RESPONDENT – Respondent and COURT OF QUEBEC IMPLEADED PARTY - Defendant JUDGMENT [ 1 ] The applicant seeks leave to appeal from a judgment by the Superior Court, district of Montreal (the Honourable Madam Justice Catherine Mandeville), rendered on August 30, 2010, dismissing an application for judicial review of a Court of Quebec judgment dated December 16, 2008, (the Honourable Judge Henri Richard), which dismissed the appeal of a ruling by the Police Ethics Commission dated December 7, 2007, which found that there was no breach of ethics by the respondent, Serge Vien. [ 2 ] On November 30, 2006, the police ethics commissioner (the applicant) filed a citation with the Police Ethics Committee alleging seven counts of misconduct on the part of the respondent in regards to Ms.

L.T. (the complainant), in breach of sections 5, 6, 7, and 8 of the The Code of ethics of Québec police officers. [1] [ 3 ] The facts giving rise to the complaint are relatively straightforward. The owner of a video store reported a series of shoplifting incidents in her business to the police. The investigation was assigned to the respondent, Detective-sergeant Vien. [ 4 ] On May 11, 2006, the latter viewed a video tape on which the perpetrator was identifiable as the son of Ms. L.T., with whom he lives. Knowing Ms.

L.T. from a previous investigation, the respondent went to her house with a colleague in the hopes of finding the stolen video games there. On May 29, he visited with the intention of explaining his presence as a follow-up on the file that had first put them in contact. She recognized him and let him in. [ 5 ] The evidence concerning the excuse actually used by the respondent to receive an invitation into L.T.'s home is contradictory.

The Committee preferred the police officer's version to the complainant's, in which she claimed that the officer had stated that he was taking over the Sûreté du Québec's investigation regarding the sexual assault of her younger son, who also lived with her. [ 6 ] During the visit, the complainant let the police officers look into the room shared by her sons. This allowed the officers to notice the presence of two of the stolen video games. [ 7 ] After leaving the premises, the officers wrote a report to obtain a search warrant. The respondent acted as an informant.

He related the factual narrative in an affidavit and did not conceal in any way his visit to L.T.'s house or what he saw there. A justice of the peace issued the search warrant, which permitted the seizure of the two stolen video games and the arrest of the eldest son. Once the suspect had been interrogated, he went with the police officers to the consignment store where he had left the remainder of the stolen objects. [ 8 ] The Committee found that the evidence as a whole argued in favour of the police officer's version and that the respondent's conduct did not constitute

an act derogatory to sections 5, 6, 7, and 8 of the Code of Ethics . The gist of the Committee's reasons are found in the following paragraphs: [translation]

[73] The evidence as a whole argues most convincingly in favour of the police officer's version; the acknowledged excuse used to enter the complainant's home is so straightforward that it could not "shock the community" (citation omitted). [74] Even if it had, it would still not possess the inordinate or excessive nature required for the conduct to be deemed derogatory. (citation omitted). [75] We will now consider how the previous findings apply to the seven counts in the citation.

Counts 1, 2, and 3 [76] The first three counts concern the visit to the complainant's home (section 5 of the Code ), access to her residence (section 6 of the Code ), and the resulting information obtained (section 7 of the Code ). [77] In all three cases, the Commissioner's complaint is based on the officer's use of false pretences or excuses to succeed in his undertaking.

From the evidence as a whole, the Committee accepts the police officer's admission that he used the existence of a previous file that he had investigated in which L.T. was the complainant. [78] This subterfuge, based on a true fact, reduces the significance of the deception in that its sole purpose was not to conscript L.T. against herself but, rather, to confirm the suspicions against her son. The police officer's approach of L.T., therefore, was not inconsiderate (per

section 5 of the Code ), abusive (per

section 6 of the Code ), disrespectful of the authority of the law and the courts or indifferent of collaborating with the administration of justice (per

section 7 of the Code ). Counts 4, 5, 6, and 7 [79] Counts 4 and 5 address the issuance of the search warrant, count 6 the execution of the warrant, and count 7 the ensuing arrest. The ground of the deviation, which applies to all counts, lies in the use of false or erroneous information by Detective-sergeant Vien, first, to convince the justice to grant a search warrant, and, second, once he had the warrant in his possession, to perform its dictates.

The arrest was the foreseeable consequence. [80] The police officer's affidavit resembles, for all intents and purposes, his testimony before the Committee and the facts therein are permeated by the same truth. The Municipal Court judge approved of them in issuing the search warrant. The Committee agrees with this finding, though it does not feel bound by its jurisdiction in matters involving ethics. [81] Even if the Committee accepted the complainant's version, the grounds she raises are not to be found in the affidavit (citation omitted).

In the document in question, the Committee searched in vain for the falsehoods or erroneous information that the complainant claims were circulated by Mr. Vien to convince the issuing judge. [82] The arrest is the ripple effect of a lawfully authorized search during which the discovery of stolen objects in Mr.

Y's possession materialized, as announced. [83] Thus, the commissioner has not successfully proved the merits of each of the counts in the citation. [ 9 ] The applicant appealed this judgment before the Court of Quebec. [2] [ 10 ] On December 16, 2008, the Honourable Judge Henri Richard of the Court of Quebec dismissed the appeal and confirmed the Committee's ruling. [ 11 ] Discussing the applicable standard of review, Richard J.C.Q. set aside the standards preferred by the Supreme Court in Dunsmuir , [3] supra , in favour of those established for appellate courts in Housen v.

Nikolaisen . [4] [ 12 ] He then dismissed the first ground of appeal raised by the applicant regarding the Committee's failure to determine the lawfulness of the respondent's visit to the complainant's domicile. He considered this ground to be without merit because the Committee did not necessarily have to determine the unlawful nature of the police action in order to exercise its jurisdiction, but it did have to determine whether the action in question was

an act derogatory to the Code of Ethics. [ 13 ] As for the grounds concerning the investigator's visit, which allegedly constituted an ethical breach, or the grounds concerning the investigator's affidavit submitted to the justice of the peace, which allegedly included false and erroneous information, the judge was of the view that these were questions of mixed law and fact determined by the Committee.

In this regard, he did not find any "palpable and overriding error" in the Committee's ruling. [ 14 ] The applicant then sought a judicial review of this last judgment before the Superior Court. [ 15 ] His first ground for review was the Court of Quebec judge's refusal to apply the standard of review favoured by the Supreme Court in Dunsmuir , supra , which states that the issue of whether

section 8 of the Canadian Charter of Rights and Freedoms [5] was applied in accordance with the standard of correctness should have been considered. As for the other grounds of appeal concerning the issues stemming from the Code of Ethics and the circumstances related to obtaining the search warrant, the applicant maintains that the standard is that of reasonableness.

Failure to apply these standards entails, according to the applicant, a review of the Court of Quebec judgment. [ 16 ] Being of the opinion that the standard of review is that of correctness, the Superior Court judge found that the judgment by the Court of Quebec judge was incorrect and should be reviewed. In her view, the Court of Quebec judge should have shown deference and given the Committee's ruling the deference discussed in Dunsmuir , supra . In her view, the specialized nature of the Committee as well as the purpose of the Act —to ensure the protection of the public—attract deference to its rulings.

She concluded that the Court of Quebec should have considered the standards established by Dunsmuir , supra , to determine the applicant's appeal.

[17] Having identified an error by the Court of Quebec judge regarding the standard of review, it is up to the Superior Court todetermine whether the findings by the Court of Quebec would have been the same had it applied the correct standards. [18] In sum, it repeated the exercise, this time according to the applicable standard of review, the standard of reasonableness, as theCourt of Quebec should have done.

It came to the same conclusions. [19] First, concerning the Committee's ruling concluding that the respondent did not commit an ethical breach in making use of aruse to gain access to the complainant's domicile, the judge had the following to say: [translation] [44] The Committee found that the ruse enabling Vien to enter Ms. T.R.'s home (the excuse of following up on an older file) was nota derogatory act.

If the Court of Quebec had used the correct standard of intervention, would it have found the Committee's ruling to bereasonable? [45] This Court finds that the answer must be affirmative and maintains the Committee's ruling because it possesses all the attributesof reasonableness resulting "mostly [from] the existence of justification, transparency and intelligibility within the decision-makingprocess.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible inrespect of the facts and law" [Dunsmuir, 2008 SCC 9 , [2008] 1 S.C.R. 190 at para. 47]. [46] To find that the subterfuge used by Vien was acceptable and that, contrary to the commissioner's argument, there was nounlawful search or raid, the Committee considered: [translation] 46.1 that, according to the version of events given by Vien, he did not ask to be invited into Ms.

T.R.'s home but, instead, followed herin at her behest all the way to her son's room where the stolen objects were in plain sight, which means that there was no search withoutwarrant. 46.2 that there is no need to determine a potential breach of the Charter due to an unreasonable search because it is the derogatorynature of the conduct that must be considered and a Charter violation does not necessarily translate into an ethical offence [citationomitted]. 46.3 that the police officers may legitimately use ruses or excuses to carry out their investigations insofar as this conduct is not likelyto shock the community [citation omitted] and that, in this case, Vien used a subterfuge based on a true fact and so straightforward that itdoes not shock or possess the inordinate or excessive nature required to constitute derogatory behaviour. [47] This reasoning, based on an assessment of the evidence and relying on case law, certainly is intelligible and rationally acceptablein light of the law and the facts. [48] Where the Court of Quebec saw no palpable and overriding error, this Court does not see any unreasonable conclusion and, thus,there is no reason to interfere. [20] Applying this same standard of reasonableness to the Court of Quebec's judgment which concludes that there was no ethicalbreach because the respondent did not submit an affidavit containing false or erroneous information to the authorizing judge to obtain asearch warrant, the Superior Court judge added the following on the subject: [translation] [49] As we are, once again, faced with the issue of assessing the conduct of the police officer, reasonableness remains the applicablestandard. [50] It is useful to recall here, as did the Court of Quebec, that the parties never questioned the Committee's

summary of facts, itsassessment of the credibility of the witnesses, or even its finding that Vien was [translation] "credible and transparent". [51] In commenting on the affidavit Vien submitted to the justice of the peace to obtain the search warrant, the Committee added that[translation] "for all intents and purposes, his testimony before the Committee and the facts therein are permeated by the same truth". [52] Because, in his affidavit, Vien declared his prior visit to the domicile of T.R., whom he knew as a [translation] "complainant in aprior file" and because he stated that, of her own initiative, she showed him her son's room where he saw the stolen goods, theCommittee could reasonably conclude, pursuant to its assessment of the police officer's credibility, that he had not sought to mislead thejustice of the peace and that this affidavit met the requirements set out in Araujo [citation omitted]. [53] Therefore, there is no need for this Court to intervene to modify this finding by the Committee or, consequently, to set aside theCourt of Quebec's judgment. [21] The Superior Court judge was correct in applying the standard of reasonableness to the issues determined by the Committee,which is deemed to possess a greater specialization than the Court of Quebec in matters involving police ethics.

On this issue, theSuperior Court judgment follows the teachings of the Supreme Court in Proprio Direct,[6] which have the weight of stare decisis andcannot be ignored. Moreover, it was also well founded to conclude that the Committee's ruling met the criteria of intelligibility andtransparency stipulated in Dunsmuir and that it was reasonable in light of the evidence on which it was based. [22] The file's progress thus far ends here.

The ethics complaint has already passed through three levels of adjudication: first, thespecialized decision-maker, then the appeal before the Court of Quebec and finally the judicial review before the Superior Court. Fouryears have gone by from the time the complaint was filed to the present application for leave to appeal, the fourth level, which can only

be reached if leave is granted upon consideration of the criteria for granting such leave as stated in the second paragraph of

article 26 C.C.P , which is worded as follows: An appeal also lies, with leave of a judge of the Court of Appeal, when the matter at issue is one which ought to be submitted to the Court of Appeal, particularly where, in the opinion of the judge, the matter at issue is a question of principle, a new issue or a question of law that has given rise to conflicting judicial precedents. [ 23 ] This screening process is imperative, especially since administrative justice sometimes lends itself to a singular paradox.

In the vast majority of cases, a judicial decision can be appealed only once, twice at most, and then only with the Supreme Court's leave, which, incidentally, is rarely granted. An administrative or quasi-judicial ruling can, on the contrary, be subject to a great number of levels of adjudication.

For example: an initial ruling rendered by a specialized decision-maker can in some cases be subject to a request for internal review by other members of the same body or to an appeal as of right or by leave before a specialized appellate court or before the Court of Quebec, only then to be subject to an application for judicial review before the Superior Court, which does not require leave. The Superior Court judgment can then also be subject to appeal before the Court of Appeal, but only by leave.

The exercise can in some cases resemble a veritable marathon. [ 24 ] There are cases, of course, where this long and slow process can guarantee greater justice, but I find it difficult to believe that the legislature's objective, when it assigns certain subject matters to specialized decision-makers and administrative appellate or review tribunals out of a concern for, among other things, effectiveness (shorter delays) and cost (lower) is always achieved. [7] Undoubtedly, there is comfort in the fact that, every year, administrative decision-makers render thousands, if not tens of thousands or more rulings, of which only a minute number go through more than two levels.

It is to be hoped for, at least. [ 25 ] On the subject of the respondent's visit to the complainant, the applicant argues that neither the Committee nor the Superior Court addressed the unlawful nature of the search deliberately performed by the investigator.

As for the respondent's statements in the affidavit supporting the warrant requisition, the applicant maintains that there was an attempt to mislead the issuing judge by not disclosing the investigator's allusion to the fact that his visit was intended as a follow-up of the previous investigation. [ 26 ] These issues were considered in one manner or another in the previous stages, and the answer has not changed.

For the Committee, the respondent's conduct did not constitute an ethical breach regarding either of the trial issues; the Court of Quebec did not find any errors in the Committee's ruling; the Superior Court found the Committee's ruling to meet the standard of reasonableness, although it rightly pointed out the Court of Quebec judge’s erroneous determination of the standard of review. [ 27 ] I find, in these circumstances, that there is no reason to delve deeper into the judicial review of the Court of Quebec's judgment.

In short, the Superior Court judge correctly navigated the law and none of the trial issues should, in my opinion, be submitted to the Court of Appeal. Finally, the Superior Court judgment does not raise a question of principle, or a new issue, or a question of law that has given rise to any conflicting judicial precedents. [ 28 ] Before concluding, something must be said about the determination of the standard of review by the Court of Quebec judge.

When sitting in appeal from a decision by a specialized decision-maker or administrative tribunal, he nevertheless continues to apply the standard of intervention of judicial appeals.

He is the only Court of Quebec judge to do so, at least according to the many judgments of the other magistrates of that court who make mention of it. [8] This position is likely to provoke pointless judicial reviews, carrying the risk for litigants of incurring additional fees without reason. [ 29 ] Of course, in practice, there are similarities between the standard of intervention of an appellate court and the standard of judicial review on questions of fact, [9] as opposed to issues of law and questions of mixed fact and law. That being said, the teachings of the Supreme Court cannot simply be set aside.

Since the Supreme Court judgments in Dunsmuir and more particularly in Proprio Direct , supra , any doubt, if ever there was any, concerning the applicable standard in appeals to the Court of Quebec of rulings by specialized administrative decision-makers has evaporated. In this context, the parties in appeal of such a ruling are entitled to expect that the appellate court will respect the principle of stare decisis . [ 30 ] FOR THESE REASONS: [ 31 ] The application for leave to appeal the judgment rendered by the Superior Court on August 30, 2010 is dismissed, with costs. JACQUES DUFRESNE, J.A.

Mtre Sylvain Ayotte Cloutier, Mathieu, Attorneys For the Applicant Mtre Danny Venditti Trudel, Nadeau For the respondent Date of hearing: November 23, 2010