DOUGLAS SNELGROVE Applicant And: HER MAJESTY THE QUEEN, as represented by the MINISTER OF JUSTICE v. PUBLIC SAFETY, 2020 NLSC 75

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Snelgrove v.

Newfoundland and Labrador (Justice and Public Safety) , 2020 NLSC 75 Date : May 15, 2020 Docket : 201801G8564 Between: DOUGLAS SNELGROVE Applicant And: HER MAJESTY THE QUEEN, as represented by the MINISTER OF JUSTICE AND PUBLIC SAFETY First Respondent And: CHIEF OF POLICE of the ROYAL NEWFOUNDLAND CONSTABULARY Second Respondent And: ROYAL NEWFOUNDLAND CONSTABULARY Third Respondent Restriction on Publication: By court order, any information that may identify the person described in this judgment as the complainant shall not be published in any document, broadcasted, or transmitted in any way.

Before: Justice Robert P. Stack On Judicial Review From: Decisions of the Chiefs of Police of the Royal Newfoundland Constabulary, dated September 9, 2015, and November 1, 2017. Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: September 16, 2019

Summary: The applicant is an officer in the Royal Newfoundland Constabulary. A public complaint was made against him thatwas followed by a criminal charge relating to the same alleged misconduct. Chief William J. Janes suspended the applicant without paypending resolution of the criminal charge and the complaint. That suspension was continued by Chief Joseph A. Boland.

The applicantsought judicial review of those decisions on the basis that the decisions were unreasonable because each of the two Chiefs found himguilty of the misconduct alleged against him without giving him the benefit of completing the complaints process. The Court held that although a Chief should consider the apparent strength of the case against an officer, it would be unreasonablefor him or her to make a finding of wrongdoing before the complaints process was completed. As such, the decision of Chief Janes thatdid the latter was unreasonable and was unjustifiable given the legal context of the decision.

Chief Boland, on the other hand, did notmake a finding of wrongdoing against the applicant. His decision, therefore, was found to be reasonable. Appearances: John F. E. Drover Appearing on behalf of the Applicant Wendy A. Zdebiak Appearing on behalf of the Respondents Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Bell Canada v. Canada(Attorney General), 2019 SCC 66; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67; Royal NewfoundlandConstabulary Public Complaints Commission v.

McGrath, 2002 NLCA 74; Royal Newfoundland Constabulary Pubic ComplaintsCommissioner v. Oates, 2003 NLCA 40; Allen v. Ontario Provincial Police Commissioner (1974), (ON SC), 6 O.R.(2d) 671, 53 D.L.R. (3d) 664 (Div. Ct); Royal Canadian Mounted Police Deputy Commissioner v. Canada (Attorney General), 2007 FC564; Winnipeg (City) and Winnipeg Police Assn., Re, 1996 CarswellMan 652, 44 C.L.A.S. 194 (Man. Arb.); Halifax (RegionalMunicipality) v. Nova Scotia Police Review Board, 2019 NSSC 91; R. v. St-Cloud, 2015 SCC 27; Cabiakman c.

Industrielle Alliance, cied'assurance sur la vie, 2004 SCC 55 STATUTES CONSIDERED: Royal Newfoundland Constabulary Act, 1992, S.N.L. 1992, c. R-17; Royal Newfoundland ConstabularyPublic Complaints Regulations, C.N.L.R. 970/96; Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] The applicant, a constable in the Royal Newfoundland Constabulary (the “RNC”), was suspended from duty by the Chief ofthe RNC, William J. Janes, without pay pending investigation of a public complaint made against him.

Following the retirement of ChiefJanes, the applicant’s suspension without pay was continued by Chief Joseph A. Boland who had replaced Chief Janes. The applicantsays that the suspension without pay is unreasonable because each of the Chiefs found him guilty of the alleged misconduct prior to thepublic complaint process being completed.

This application seeks to have the decisions of the Chiefs quashed and the matter remittedback to Chief Boland for reconsideration in accordance with direction from the Court. facts [2] The applicant agrees with the facts as set out in the brief filed by the respondents. [3] The applicant has been employed as a police officer with the RNC since January 4, 2005. The RNC is a para-military policingorganization created by the Royal Newfoundland Constabulary Act, 1992, S.N.L. 1992, c.

R-17 (the “Act”) and forms part of theprovincial Department of Justice and Public Safety. [4] A person, whom I will refer to as T.C., filed a public complaint against the applicant pursuant to

section 22 of the Act onFebruary 23, 2015, in which she alleged that the applicant sexually assaulted her on December 21, 2014.

[ 5 ] Chief Janes imposed a suspension without pay on the applicant on July 14, 2015, pursuant to

section 14 (

a) of the Royal Newfoundland Constabulary Public Complaints Regulations , C.N.L.R. 970/96 (the “ Regulations ”). By correspondence from counsel for Chief Janes dated July 14, 2015, the applicant was provided an opportunity to provide written submissions regarding whether the suspension without pay should continue. [ 6 ] On July 15, 2015, T.C. made a criminal complaint against the applicant in relation to the alleged sexual assault which resulted in the laying of a criminal charge against the applicant pursuant to

section 271 of the Criminal Code , R.S.C. 1985, c. C-46 .

Upon the filing of the criminal charge against the applicant, the investigation of T.C.’s public complaint was automatically suspended pursuant to section 43(1) of the Act . [ 7 ] On August 21, 2015, counsel for the applicant provided Chief Janes with written submissions regarding why, in his view, the suspension without pay against the applicant should not continue. [ 8 ] On September 9, 2015, Chief Janes provided an 18-page written decision explaining his reasons for imposing and continuing the suspension without pay (the “Janes Decision”). [ 9 ] Following a trial by judge and jury, on February 24, 2017, the applicant was acquitted on the criminal charge.

The Crown appealed the acquittal to the Court of Appeal of Newfoundland and Labrador. [ 10 ] After the applicant was acquitted on the charge of sexual assault, his counsel provided Chief Boland with written submissions dated September 5, 2017, requesting that the applicant’s pay be reinstated while he remained suspended from duty. [ 11 ] On November 1, 2017, Chief Boland provided a 32-page written decision explaining why he decided to maintain the applicant’s suspension without pay (the “Boland Decision”). [ 12 ] Following the Boland Decision, the appeal by the Crown from the applicant’s acquittal was allowed by the Court of Appeal.

The applicant then appealed to the Supreme Court of Canada which upheld the decision of the Court of Appeal. The appellate courts found error in the trial judge’s decision not to charge to the jury regarding

section 273.1(2) (

c) of the Criminal Code . That provision nullifies consent where an accused, by abusing a position of trust, power or authority, induces a complainant to engage in sexual activity. The applicant is now awaiting his retrial on the criminal charge. [ 13 ] As a result of the continuing criminal prosecution against the applicant, the investigation of T.C.’s public complaint remains suspended pursuant to section 43(1) of the Act .

As a result, t he applicant remains suspended from duty without pay pending his retrial on the criminal charge and the subsequent investigation of the public complaint. [ 14 ] The applicant asks the Court to quash both the Janes Decision and the Boland Decision. standard of review [ 15 ] At the hearing of the matter, the parties agreed that reasonableness is the standard by which I am to review a decision of a Chief of the RNC to suspend an officer from duty pursuant to

section 14 of the Regulations . Following the hearing, however, the Supreme Court of Canada provided a new framework for the review of decisions of inferior tribunals in a trilogy of decisions: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Bell Canada v. Canada (Attorney General) , 2019 SCC 66 ; and Canada Post Corp. v. Canadian Union of Postal Workers , 2019 SCC 67 .

At my request, each of the parties has provided a brief outlining its position on the effect of these new cases on this matter. [ 16 ] The revised framework for determining the applicable standard for review set out in Vavilov starts with a presumption that reasonableness is the applicable standard whenever a court reviews an administrative decision (paragraph 16).

This presumption of reasonableness review can be rebutted in two circumstances: (1) where the legislature has indicated that it intends a different standard or set of standards to apply, for example, where the legislation sets out an applicable standard of review or provides a statutory appeal mechanism from an administrative decision to a court; and (2) where the rule of law requires that the standard of correctness be applied, for instance, for constitutional questions, general questions of law of central importance to the legal system, or questions related to the jurisdictional boundaries between two or more administrative bodies. [ 17 ] The parties have agreed that neither of the two exceptions to the presumptive application of reasonableness are present in this case.

I agree and so have applied a reasonableness standard of review to my consideration of the matter. [ 18 ] At the outset, the court in Vavilov reminded reviewing courts that a reasonableness review is based upon outcomes viewed through the three-part lens of transparency, intelligibility and justification. At paragraph 15 the majority stated: 15 In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified.

What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker's place. [ 19 ] At paragraph 75, the court confirms that the burden is on the party challenging the decision to show that it is unreasonable.

An “unreasonable” decision is one that suffers from one of two fundamental flaws, either: the failure of rationality internal to the reasoning process; or, it is in some respect untenable in light of the relevant factual and legal constraints that bear on it.

[ 20 ] It is with the foregoing approach to the reasonableness standard of review in mind that I will consider the decisions of the Chiefs of the RNC to suspend the applicant from duty without pay. the legislative framework [ 21 ] It is important to consider the legislative framework within which the decisions being reviewed have been made. The authority of an RNC Chief to make decisions comes from the Act and the Regulations . [ 22 ] Among the responsibilities of an RNC Chief set out in

Section 6 of the Act are the following: 6.

(1) The chief shall … (

f) monitor the constabulary to ensure that police officers and other constabulary employees comply with required standards of service and discipline; (

g) administer discipline in accordance with this Act . [ 23 ] Public complaints concerning the conduct of RNC officers are governed by

section 22 of the Act . [ 24 ] By

section 3 of the Regulations , an RNC officer must not conduct himself or herself “in a manner unbecoming to a police officer and liable to bring discredit upon the Royal Newfoundland Constabulary”. One of the prohibited behaviours is to “improperly use his or her character and position as a police officer for private advantage” (section 3(1)(h)). [ 25 ] The Regulations make two types of suspensions available to a Chief of the RNC. The first is an “administrative” suspension provided for in

section 14 . An administrative suspension, with or without pay, may be imposed upon an RNC officer following a public complaint being filed or a criminal investigation being commenced. Administrative suspensions are interim in nature and last until the conclusion of the public complaint process. Administrative suspensions are non-disciplinary. They are not intended to punish officers but permit their removal from duty for reasons related to the protection of the public or co-workers, or to public confidence in the police force.

Administrative suspensions can be with or without pay. [ 26 ] Where a criminal prosecution is commenced against an RNC officer against whom a public complaint has been made, section 43(1) of the Act provides that the investigation of the public complaint is automatically suspended pending a decision on the prosecution. [ 27 ] The second type of suspension available to be imposed by a Chief of the RNC is a disciplinary penalty pursuant to

section 13 of the Regulations which permits the Chief to make any order available under section 33(1) (

b) of the Act following the conclusion of the public complaint process. A disciplinary suspension may be with or without pay ( section 33(1) (b)(vi)). The Act also permits the Chief to terminate an officer in the event of a finding of wrongdoing following a hearing ( section 33(1) (b)(vii)). [ 28 ] It is with this legislative framework in mind that I will consider the Janes Decision and the Boland Decision. ANALYSIS [ 29 ] The applicant claims that the Janes Decision and the Boland Decision are both unreasonable because each is punitive, rather than administrative as authorized by the Act and Regulations .

That is the only issue that has been raised by the applicant and it is therefore the only issue that I will address. [1] [ 30 ] It is agreed by the parties that because the public complaint process has not been completed, the applicant’s suspension without pay was made under

section 13 of the Regulations and is administrative. Such a suspension is made in the public interest ( Royal Newfoundland Constabulary Public Complaints Commission v. McGrath , 2002 NLCA 74 , and Royal Newfoundland Constabulary Pubic Complaints Commissioner v. Oates , 2003 NLCA 40 ). As explained in paragraphs 38 and 39 of McGrath (and at paragraph 17 of Oates ): 38 The primary objective of the public complaints scheme is not discipline, although discipline may ultimately result.

Discipline of Royal Newfoundland Constabulary members is dealt with by s. 42 of the Act and, more particularly, by the Royal Newfoundland Constabulary Regulations, CNLR 802/96 . 39 Like McLachlin J. in Narian , I conclude that the duties imposed by

Part III of the Act and the Complaints Regulations are essentially public in nature and not focused on the private rights of individual police officers.

Part III takes its cue from its title, i.e., Public Complaints. It creates the office of the Public Complaints Commission and provides the procedure by which citizens can express dissatisfaction with a particular police action. Once a complaint is made, a citizen, such as Mrs. Tee, is in the hands of others. She or he has no control over those whose duty it is to perform the procedures which

Part III and the Complaints Regulations require…. [ 31 ] The investigation of the complaint made against the applicant was suspended until the resolution of the related criminal proceeding. That investigation will recommence once the criminal proceeding has been concluded. As such, the suspension without pay

is temporary, although its duration may be extended by protracted criminal proceedings as we have seen here. [32] The determination of whether to impose an administrative suspension is discretionary and involves balancing the interests of theofficer against those of the police force and the public. As noted in the minority decision of Henry J. (agreeing in the result) in Allen v.Ontario Provincial Police Commissioner (1974), (ON SC), 6 O.R. (2d) 671, 53 D.L.R. (3d) 664 (Div.

Ct) at paragraph14: 14 … The power to suspend a constable or other police officer found in s. 56 of the Regulations, R.R.O. 1970, Reg. 680, is part of the authoritythat is conferred on the Commissioner and the other senior officers mentioned for the proper administration and deployment of the force.Its primary purpose is not to discipline the member who is suspended under its provisions, but to remove him from duty for reasons thatin the judgment of the Commissioner are important for the protection of the public and of the force itself. [Emphasis added.] [33] The Federal Court stated in paragraph 68 of Royal Canadian Mounted Police Deputy Commissioner v.

Canada (AttorneyGeneral), 2007 FC 564, that “a decision to suspend an officer with pay pending an investigation is essentially a non-judgmental andnon-disciplinary decision….

It is a preliminary decision to verify factual allegations and it does not presume guilt” (emphasis in original). [34] It is obvious from the legal and factual context in the case under review that it would be unreasonable for a Chief to make afinding of wrongdoing upon the applicant and to impose a punitive suspension upon him, without the public complaint process beingcompleted. [35] Let us look now in greater detail at the case law relied upon by the applicant. [36] In Winnipeg (City) and Winnipeg Police Assn., Re, 1996 CarswellMan 652, 44 C.L.A.S. 194 (Man.

Arb.), the arbitrator heard agrievance filed by an officer who was suspended without pay in accordance with a collective agreement. At paragraph 2(

B) under theheading of “The Arbitrator’s Decisions on the Issues” of the award, he addresses the nature of suspensions without pay: The Chief, in exercising his discretion relative to a suspension situation, must be careful to distinguish between discipline andpunishment. In the case before us, Chief Henry testified that he suspended Kohut without pay both to discipline him and punish him. Inmy view, the act of suspension, with or without pay, is disciplinary.

Where there are criminal charges punishment should be left to thecourts if guilt is determined. [37] The applicant contends that insofar as neither of the decisions of the Chiefs expressly state that the suspension is meant topunish the applicant, they are more insidious than the decision in Winnipeg where the punitive nature of the suspension was madeexpress.

He submits, however, that it is clear from their weighing of the evidence that both Chief Boland and Chief Janes engaged in justsuch a determination and suspended the applicant without pay as punishment. [38] In Winnipeg, under the heading “The Arbitrator's Decisions on the Issues”, the arbitrator goes on at paragraph 2(E), “Obviously,caution must be taken by the discipline authority where there are alleged criminal offences to avoid an assumption of guilt …”. Hefound that the chief there, “[relied] heavily on the criminal charge documents in deciding to suspend Kohut without pay.

The PoliceChief’s difficult challenge in these disciplinary suspension cases involving criminal charges is to tread the fine line between judging theimpact of the alleged offences on the police service and the strong suspicion of guilt and temptation to punish accordingly”. [39] In Halifax (Regional Municipality) v.

Nova Scotia Police Review Board, 2019 NSSC 91, the Nova Scotia Supreme Courtjudicially reviewed a decision of the Nova Scotia Police Review Board that overturned a suspension without pay imposed by the chief ofpolice of an officer charged under the Criminal Code with voyeurism, trespassing at night, and breach of trust. At paragraph 34,Campbell J. noted that there is a list of factors for consideration in a decision to suspend an officer without pay pending the resolution ofcriminal and disciplinary charges: 34 … The decision to stop pay and allowances should be made in exceptional circumstances.

The purposes of the Police Act are to balance public protection from the abuse of police power and the protection of police officers from unwarranted disciplinary action. Thesuspension of pay and allowances is administrative and not punitive.

When a member is charged criminally, the Board must respect thepresumption of innocence and not engage in any weighing of the allegations in determining whether to stop pay and allowances. [Citations omitted.] [40] The above passages identify the following principles for administrative suspensions of police officers applied in these cases: i. administrative suspensions without pay are rare; ii. they are not punitive; iii. where the officer has been charged criminally, the presumption of innocence is an important

factor; and iv. it is not the decision maker’s role to weigh the evidence. [ 41 ] In Halifax , Campbell J. found that failure to comply with these principles renders a decision to suspend without pay unreasonable. Although I agree with the first three principles listed above, I will shortly address in detail the fourth principle. [ 42 ] Another factor that the court in Halifax identified as bearing on a decision to suspend without pay is the financial circumstances of the police officer. [ 43 ] I am satisfied that a Chief of the RNC considering whether to suspend an RNC officer from duty pursuant to

section 14 of the Regulations , with or without pay, must do so on an individualized basis but that the outcomes in other cases must be taken into account to ensure that like cases are treated alike. The Chief must balance the interests of the officer, the RNC, and the public. Suspending an officer without pay should be the exception, not the norm. Upon application by the suspended police officer, a Chief must be prepared to re-evaluate a suspension, especially a suspension without pay, as circumstances change.

This is particularly so in a case such as this where the public complaint process has been suspended pending a lengthy criminal proceeding. [ 44 ] I am not satisfied, however, that a Chief in such circumstances ought not to consider the evidence when determining whether to impose an administrative suspension. Let me explain why. Consideration of the Evidence [ 45 ] As we have seen, in Halifax and Winnipeg it is stated that a chief of police should not weigh the evidence against an officer when considering whether to suspend an officer pending the investigation of a public complaint.

This is the position advocated on behalf of the applicant. [ 46 ] Counsel for the respondents submits, on the other hand, that the role of a Chief in such circumstances is analogous to that of a judge considering whether to grant an accused judicial interim release pending the criminal justice process.

In both instances, she says, wrongdoing has not been established but nevertheless the decision-maker must balance the interests of the person facing the complaint against the public interest. [ 47 ] To this end, counsel for the respondents points to the third ground upon which a judge may detain a person charged with a criminal offence in custody pending trial. [2] Section 515(10) (

c) of the Criminal Code provides: 515

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: … (

c) if the detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case , (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [Emphasis added.] [ 48 ] It is accepted by the applicant that in imposing the administrative suspension, the Chiefs were free to take into account considerations analogous to the last three factors listed in section 515(10) (

c) of the Criminal Code . Where he departs from the position of the respondents is in consideration of the first factor – the apparent strength of the case against the police officer. [ 49 ] I have concluded that a Chief cannot conduct the necessary balancing exercise without making at least a preliminary assessment of the apparent case against the police officer, just as the third ground for withholding release of an accused requires the judge to assess the apparent strength of the Crown’s case.

Obviously, this is limited to the apparent strength of the case, based upon what the Chief has before him or her at the time. No finding of wrongdoing can be made without the entirety of the case first being heard.

Of course, this consideration of the evidence can cut both ways – that is, one would expect that a weak or superficial case would work towards there being no suspension, let alone a suspension without pay; similarly, a strong case would militate in the other direction. [ 50 ] It is self-evident that a Chief considering whether to impose an administrative suspension will not conduct a separate investigation into the complaint. That is the role of the public complaints process itself.

But he or she must take into account the material that is on record at that point, all the while bearing in mind that the officer in question has not been provided with a full opportunity to be heard on the matter. The preliminary nature of the analysis is heightened where the officer has been charged criminally because he or she enjoys the presumption of innocence and the right not to self-incriminate in the criminal case. Nevertheless, one of the

responsibilities of the Chief in circumstances such as these is to make an assessment of the apparent case against the police officer in the context of balancing that officer’s rights against the interests of the RNC and the public at large. What was not open to a Chief, however, is to make an ultimate finding of wrongdoing. Factors to be Considered on a Suspension, With or Without Pay [ 51 ] Based upon the jurisprudence presented to me and the foregoing, the following is a non-exclusive list of factors that a Chief of the RNC should consider when exercising his or her discretion pursuant to

section 14 of the Regulations to impose an administrative suspension, with or without pay, on an officer:

(1) The seriousness of the alleged misconduct against the officer;

(2) The apparent strength of the case against the officer, bearing in mind that the matter has not been fully investigated and, where the officer has been charged with a criminal offence, the presumption of innocence and the right not to self-incriminate;

(3) Whether the alleged misconduct involves an offence against a person, particularly a vulnerable person;

(4) Whether the alleged misconduct occurred while the officer was on duty or while in uniform, in whole or in part;

(5) The effect of the officer remaining on duty on morale and other workplace internal factors;

(6) The effect of a suspension without pay on the financial circumstances of the officer and his or her family;

(7) The effect of a suspension, or a decision not to impose a suspension, on public confidence in the RNC;

(8) Whether, upon consideration of all of the factors, the officer can be accommodated in other police duties pending investigation of the alleged misconduct; and

(9) The circumstances of other suspensions in similar circumstances. [ 52 ] The applicant submits that both Chief Janes and Chief Boland violated the second principle stated above. That is, the applicant says, each made a finding of wrongdoing against him based upon each Chief’s assessment of the evidence. [ 53 ] For the reasons set out below, I find that the Janes Decision is unreasonable because he found the applicant guilty of misconduct on the public complaint and so the decision is not justified in relation to the relevant factual and legal constraints that bear on it.

However, I find that the Boland Decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and is justified in relation to the relevant factual and legal constraints that bear on it. The Janes Decision [ 54 ] In his written decision dated September 9, 2015, Chief Janes considered both his reasons for suspending the applicant from duty without pay on July 14, 2015 and whether to continue the suspension without pay following his review of written submissions received from the applicant’s counsel.

July 14, 2015 Suspension [ 55 ] In addressing why he initially suspended the applicant without pay, Chief Janes considered the criminal charges and the public complaint separately. He considered his statutory duties and the discretion to suspend conferred upon him by

section 14 of the Regulations . [ 56 ] On pages 2 and 3, Chief Janes outlined the factors he took into account: Factors Taken Into Account By Me In Making the Decision to Suspend Cst. Snelgrove Without Pay on July 14, 2015 1. Facts Revealed by the Criminal Investigation The following is a

summary of the significant evidence revealed by the criminal investigation by the RNC and the Ontario Provincial Police that I considered in making my decision to suspend Cst. Snelgrove without pay on July 14, 2015: - The alleged incident of sexual assault occurred on December 21, 2014; - The complainant, [T.C.], reported that she had been drinking alcohol on the date in question on George Street and was picked up downtown and dropped off at home between 2:30 a.m. and 3:00 a.m. by an RNC officer whom she did not know;

- The complainant reported that the officer had sexual intercourse with her in her home while she was in an intoxicated condition and that she did not recall consenting to engage in sexual activity with the officer; - The fact that Cst. Snelgrove was on duty December 21, 2014, and the fact that he drove [T.C.] home from George Street on the date and time alleged by [T.C.] is confirmed by RNC records, including GPS tracking information from the patrol vehicle Cst. Snelgrove was operating at the time in question; - The fact that Cst.

Snelgrove had sexual contact with [T.C.] is strongly corroborated by physical evidence specifically and clearly matched to Cst. Snelgrove that was left at the scene of the alleged incident in [T.C.]’s house. The nature of physical evidence as well as the fact that it matches Cst. Snelgrove was verified scientifically and, the physical evidence identified is clearly associated with sexual activity; - The fact that [T.C.] was significantly under the influence of alcohol at the relevant time is corroborated by witnesses who were interviewed as part of the criminal investigation. 2. Criminal Charge Against Cst.

Snelgrove In making my decision to suspend Cst. Snelgrove on July 14, 2015, I also considered the fact that a criminal charge was about to be laid against Cst. Snelgrove for a breach of

Section 271 of the Criminal Code of Canada arising from the evidence revealed by the aforementioned criminal investigation, on July 15, 2015. 3. Public Complaint In making the decision to suspend Cst. Snelgrove without pay on July 14, 2015, I also considered the fact that [T.C.] filed a public complaint against Cst. Snelgrove on February 23, 2015 dealing with the same subject matter as the criminal investigation and criminal charge against Cst. Snelgrove (please see attached copy of public complaint marked Appendix “B”).

As a result of the facts noted in #1, 2 and 3 above, it was clear to me by July 14, 2015 that: - Cst. Snelgrove was on duty at the time of the alleged sexual activity with [T.C.]; - That there is strong evidence pointing to the fact that [T.C.] was significantly under the influence of alcohol at the relevant time, that she did not previously know Cst. Snelgrove, and that Cst. Snelgrove gave her a ride home in a police vehicle; - That Cst. Snelgrove was in a unique position of trust as a police officer in relation to [T.C.] at the relevant time; - That the fact that [T.C.]’s allegation that Cst.

Snelgrove had sexual intercourse with her was corroborated strongly by physical evidence which has been scientifically verified as matching Cst. Snelgrove; - Cst. Snelgrove was about to be charged with the criminal offence of sexual assault in relation to the subject matter of [T.C.]’s complaint; - [T.C.] filed a public complaint against Cst. Snelgrove on February 23, 2015.

From my knowledge of the evidence revealed by the criminal investigation of this case, I concluded that there is not only sufficient objective evidence from which the investigating officer could formulate reasonable grounds to lay a criminal charge against Cst. Snelgrove in this case, based on this evidence I also concluded that there is strong evidence supporting the criminal complaint of [T.C.], and, therefore, there is a reasonable likelihood that Cst. Snelgrove will be convicted of the charge following a trial. In addition, in making the decision to impose the suspension dated July 14, 2015 on Cst.

Snelgrove, I took into account the fact that the evidence revealed by the criminal investigation strongly supports the public complaint of [T.C.]. The fact that the evidence in the investigation reveals that Cst.

Snelgrove had sexual contact with a person [sic] vulnerable circumstances (i.e. intoxicated) and in respect to whom he stood in a position of trust as a police officer, while on duty, is evidence of serious and significant police misconduct which, if proved, merits a penalty of dismissal from his position as a police officer. [ 57 ] In reading the Janes Decision, it is clear that he took into account information contained in the files of the RNC and the Ontario Provincial Police relating to their respective criminal investigations.

Specifically, he took into account that the evidence in the investigation “revealed” that the applicant had sexual contact with an intoxicated woman while he was on duty. Based upon that evidence, he concluded that there was a reasonable likelihood that Cst. Snelgrove would be convicted of the charge following a trial and that the evidence strongly supported the public complaint by T.C. He concluded that, while on duty, the applicant had sexual contact with a person made vulnerable by intoxication and in respect to whom he stood in a position of trust as a police officer.

This he said, would be evidence of serious and significant police misconduct which, if proved, would merit a penalty of dismissal from his position as a police officer. [ 58 ] Notwithstanding that he professed otherwise, I find that Chief Janes decided that the applicant is guilty of the misconduct alleged against him, at least in respect of the public complaint.

The Janes Decision explains the difference between the standard of proof on the criminal charge and that on the public complaint and notes “… evidence that may be determined by a court to be insufficient to prove an officer committed a criminal offence may be sufficient to prove that the officer committed an offence under the [ Regulations ]”. Chief Janes then goes on to leave the clear implication that in his view, even if the applicant was to be cleared of the criminal charges, the lower burden of proof in the civil complaint would lead to a finding that he breached the Regulations .

Continuation of the Suspension by Chief Janes [ 59 ] In response to a written submission made by counsel for the applicant that the suspension without pay should not continue, Chief Janes “considered all of the same facts” that he considered in relation to the initial suspension. [ 60 ] Chief Janes stated that he was open to considering material facts of which he was previously unaware, any significant change in circumstances, or any significant factor or legal principle that he had failed to take into account when initially imposing the suspension without pay. [ 61 ] In particular, Chief Janes expressly denied that he had reached a conclusion regarding the applicant’s guilt, although he acknowledged that he considered the evidence against the applicant in order to assess the “strength of the case against him both in terms of the criminal charge and any related breaches under the [ Regulations ].” He noted that he had not been shown any further information and was satisfied that the decision by the Crown to proceed with the criminal prosecution meant that they had concluded that there was a “reasonable likelihood of conviction”.

He concluded that the evidence of which he was aware supported “the conclusion that at worst Cst. Snelgrove sexually assaulted [T.C.] while on duty, and, at best he engaged in consensual sexual activity with a vulnerable intoxicated female while he was on duty” (emphasis added). [ 62 ] Chief Janes’ conclusion is as follows: I would like to thank Mr. Drover for the submissions he provided regarding whether the suspension without pay imposed on Cst. Snelgrove should continue. Mr. Drover provided me with many excellent points to consider on behalf of Cst. Snelgrove. In this case, however, Mr.

Drover’s submissions do not change the fact that the alleged offence and public complaint Cst. Snelgrove is facing are extremely serious, the evidence against him is strong, and, I believe, based on the evidence I am currently aware of, that he is clearly in breach of the Royal Newfoundland Constabulary Public Complaint Regulations as a result of the behaviour attributed to him in relation to this incident. [Emphasis added.] [ 63 ] Here, Chief Janes makes express the earlier implication that he found the applicant to have committed wrongdoing as alleged in the public complaint.

Consequently, I find that the continuation of the suspension without pay by Chief Janes was disciplinary and not merely administrative. Such a conclusion is not justifiable under the Regulations . [ 64 ] Chief Janes was operating under a legal constraint not to make a finding of wrongdoing when considering whether to impose an administrative suspension upon the applicant. Because he did so, the Janes Decision is not reasonable because it is not justified given the factual and legal constraints that bear upon it. The Boland Decision

[ 65 ] Following the applicant’s acquittal on the criminal charge in February of 2017, his counsel asked the new Chief of the RNC, Joseph A. Boland, to revisit the decision of Chief Janes to continue the suspension from duty without pay. [ 66 ] In his written decision dated November 1, 2017, Chief Boland agreed with counsel for the applicant that the acquittal on the criminal charge was a change in circumstances, although he noted that the Crown had appealed to the Court of Appeal and the appeal remained outstanding (as of the date of the Boland Decision).

Chief Boland also identified as a change in circumstances the strong views held by certain members of the public over the applicant’s continued employment as a police officer. [ 67 ] Chief Boland reviewed his discretionary authority to suspend a police officer pursuant to

section 14 of the Regulations . He also stated that he had reviewed and found to be “correct” Chief Janes’ decision to suspend the applicant without pay. [ 68 ] Chief Boland took issue with the position advanced on behalf of the applicant that because he was acquitted on the criminal charge, Chief Janes was incorrect that there was strong evidence supporting the prosecution. Chief Boland noted that Chief Janes did not find that the applicant would be convicted.

Moreover, he found that the facts of which Chief Janes was aware provided strong evidence in both the criminal case and in the public complaint. [ 69 ] Chief Boland was particularly concerned with the suggestion that the applicant was in a position of trust towards the complainant. He considered that in the criminal trial, the Crown sought to have the jury instructed on

section 273.1(2) (

c) of the Criminal Code – that is, that the applicant induced the complainant to have sexual activity by abusing his position of trust. He assessed the strength of the Crown’s appeal and concluded that there was a “proper basis both in fact and law to believe that legal error on the part of the trial judge either caused or significantly contributed to the acquittal of Cst. Snelgrove in this case.” He went on to find that although he was not taking the position that the outcome of the appeal was certain, he was satisfied that there was a reasonable likelihood that the Crown would be successful. [ 70 ] Chief Boland determined that the complaint would fall under section 3(1) (

h) of the Regulations , whether the applicant improperly used the character and position of a police officer for private advantage (engaging in sexual activity with the complainant) amounting to conduct unbecoming a police officer liable to bring discredit upon the RNC. [ 71 ] Chief Boland expressed concern that the applicant took the position at the criminal trial that he had no responsibility towards the complainant insofar as he was “acting pretty much as a taxi driver”.

This led Chief Boland to conclude that the applicant was either unaware of or willfully blind to the position of trust a police officer holds in respect of members of the public. The Chief went on to review case law that suggests that taxi drivers do, in fact, occupy a position of trust towards their passengers.

This caused Chief Boland concern for risk to the public insofar as this suggested that: “[Constable Snelgrove] cannot be trusted to uphold the high standard of conduct required by virtue of the unique position of trust a police officer holds, and, that as a result of this he will pose a risk to public safety if he is re-instated …”. [ 72 ] Chief Boland also noted the different standards of proof in the criminal proceeding and the public complaint investigation and examined the facts of which he was aware.

He concluded: I am of the opinion that a finding on a balance of probabilities that Constable Snelgrove used his character and position as a police officer for the purpose of engaging in sexual activity with the complainant is a reasonably likely outcome of the public complaint process. [ 73 ] Based upon that reasonably likely outcome, he went on to state that if a breach of section 3(1) (

h) were proven, then “given the aggravating factor that he was on duty at the time that he allegedly took advantage of the complainant, … could result in the dismissal of Constable Snelgrove”. [ 74 ] Chief Boland noted that the applicant had no disciplinary record with the RNC. [ 75 ] Chief Boland concluded that reinstatement of the applicant, or the reinstatement of his pay, would have an adverse effect on the reputation of the RNC: Given the public outcry and protests that erupted following Constable Snelgrove’s acquittal on the sexual assault charge which I outlined at the beginning of this decision, I disagree with the opinion Mr.

Drover expresses in his submissions that there is no objective evidence to suggest that reinstatement of Constable Snelgrove’s pay after two (2) years would bring the reputation of the RNC into disrepute. [ 76 ] Chief Boland was satisfied that the allegation against the applicant was thoroughly investigated which enabled the RNC to complete a proper assessment of his danger to the public, that the risk could not be mitigated by reassignment of the applicant, and that his decision amounted to a reassessment of the applicant’s suspension based upon changed circumstances. [ 77 ] Chief Boland acknowledged the financial hardship caused by the suspension without pay on the applicant and his wife.

Nevertheless, Chief Boland was satisfied that this was outweighed by the damage that would be caused to the reputation of the RNC in the community as well as with other law enforcement organizations if the applicant’s pay was reinstated. [ 78 ] As to the submission by the applicant’s counsel that Chief Janes imposed a penalty on the applicant rather than an administrative suspension, Chief Boland concluded that on a close reading of the Janes Decision, any reference to a “penalty” referred to what would occur at the end of the criminal process or the public complaint investigation and did not relate to the administrative suspension without pay.

I disagree with Chief Boland’s conclusion that Chief Janes did not find that the applicant guilty on the public complaint. Nevertheless, the applicant has not demonstrated that Chief Boland came to the same conclusion. Chief Boland conducted his own review of the matter in which he considered the serious allegations against the applicant, the available evidence in support of those allegations, and the likely consequences if the public complaint was upheld.

He articulated clearly that he was not making a final determination on the complaint but was imposing an administrative suspension in keeping with the discretionary authority conferred upon him by the Act and the Regulations .

[ 79 ] I find the applicant has not discharged the onus on him to demonstrate that the Boland Decision was unreasonable. Chief Boland did not step beyond the legal constraints under which he was to consider whether the applicant should be suspended without pay pending resolution of the criminal charge and the public complaint. Chief Boland acted reasonably when he considered the apparent strength of the case against the applicant in the context of weighing the interests of the applicant against the public interest and the interests and the RNC. The Boland Decision meets the Vavilov requirement of reasonableness.

It demonstrates transparency and intelligibility within the decision-making process and is based on internally coherent reasoning. Consequently, it is justified in light of the legal and factual constraints of the case. other considerations [ 80 ] Before I conclude this decision, the applicant has raised two ancillary matters that I wish to address briefly.

They are: first, that his suspension from duty without pay amounts to constructive dismissal of him from his position as a police officer; and second, that it is unfair, and therefore unreasonable, that he retain his responsibilities as a police office while receiving no salary or benefits. The Suspension is Constructive Dismissal [ 81 ] There is no merit to the applicant’s claim that his suspension without pay amounts to constructive dismissal. First, there is no evidence that he considered it as such and, as we will see in the next

section of this decision, he still considers himself to be an RNC officer. [ 82 ] For this proposition, the applicant relies upon Cabiakman c. Industrielle Alliance, cie d'assurance sur la vie , 2004 SCC 55 , where the Supreme Court of Canada held that a suspension without pay may be reasonable at the time it was imposed; however, the passage of time with an indefinite end date will render that suspension unreasonable. [ 83 ] The Cabiakman decision arose in the context of a common law employment contract where there was no express provision for suspension.

That is to be contrasted with this case where there is a statutorily prescribed mechanism for the processing and investigation of complaints against RNC officers. This process includes prescribed timelines, an express authority conferred upon the Chief of the RNC to suspend with pay or without pay, and a requirement that the complaint investigation process be suspended where a criminal charge has been laid. Here there is a definite end date to the process – once the criminal charge is finally dealt with, the time periods in the Regulations will guide the process through to conclusion.

Consequently, I do not find the common law principles articulated in Cabiakman to be helpful in deciding the issues before me. [ 84 ] I acknowledge that at some point the passage of time, in and of itself, would become a material change in circumstances that might form the basis of a re-examination of a suspension, especially one without pay. But it has not been demonstrated that such was the case at the time Chief Boland rendered his decision.

The Applicant Retains his Position as a Police Officer [ 85 ] The applicant says that it is not fair that even though he was suspended without pay, he retains his position as a police officer. Both Chief Janes and Chief Boland confirm that the applicant remains a police officer.

The applicant submits that it is unreasonable for the employer to avoid its duty to pay the applicant’s wages and benefits while at the same time the applicant remains subject to the employer’s rules owing to his sworn oath as a police officer. [ 86 ] The fact that the applicant remains a police officer pending investigation of the public complaint against him is a function of the Act and Regulations . It is not something within the purview of the Chief of the RNC. Furthermore, there may be some advantage to the applicant remaining a police officer.

For example, it permits him to make application from time to time to the Chief of the RNC to have the suspension lifted or his pay reinstated as circumstances change. The application made to Chief Boland for reconsideration of the Janes Decision is an example of the applicant availing of such a benefit. Consequently, there is no merit to this position. CONCLUSION [ 87 ] I have decided that the applicant has demonstrated that the Janes Decision to suspend him from duty without pay was unreasonable. He has not demonstrated that the Boland Decision was unreasonable.

Consequently, the application is dismissed. [ 88 ] Because the result is mixed, with the applicant demonstrating that the Janes Decision was unreasonable, I make no order as to costs. _____________________________ Robert P. Stack Justice [2] Although not raised on this application, there is another useful principle that can be derived from an analogy with section 515(10) (

c) of the Criminal Code . The reference to “maintaining confidence in the administration of justice” in the context of a bail hearing equates to maintaining public confidence in the RNC in the case of a suspension of an RNC officer. The views of a well-informed and well-

intentioned public are to be taken into account by the Chief when determining whether keeping an officer on duty would affect public confidence in the RNC. But, a public outcry on its own is not sufficient to justify a suspension. That is, the Chief must assess public reaction, real or potential, much in the same manner as a judge would on a bail hearing. There will be times that an uninformed segment of the public will react negatively against a decision that is made in full compliance with the principles at play. The views of such uninformed individuals are not those whom the Chief should bear in mind.

Who, then, are the members of the public whose reaction the Chief should consider? As stated by the Supreme Court of Canada in R. v. St-Cloud , 2015 SCC 27 : 80 In short, the person […] is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society’s fundamental values.

But he or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are available to accused persons. 81 It is of course not easy for judges to strike an appropriate balance between the unrealistic expectations they might have for the public on the one hand, and the need to refuse to yield to public reactions driven solely by emotion on the other.

This exercise may be particularly difficult in this era characterized by the multiplication and diversification of information sources, access to 24-hour news reports and the advent of social media.