Joseph Smyth APPLICANT And: Joseph Boland, Chief of the Royal Newfoundland Constabulary Respondent, 2020 NLSC 83

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation: Smyth v. Newfoundland and Labrador (Royal Newfoundland Constabulary), 2020 NLSC 83 Date: June 4, 2020 Docket: 202001G1392 Between: Joseph Smyth APPLICANT And: Joseph Boland, Chief of the Royal Newfoundland Constabulary Respondent Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 1, 2020 Appearances: Jerome P. Kennedy, Q.C. Appearing on behalf of the Applicant Wendy A. Zdebiak Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342; Old St. Boniface

Residents Assn. Inc. v. Winnipeg (City), (SCC), [1990] 3 S.C.R. 1170; Newfoundland Telephone Co. v. Newfoundland(Public Utilities Board.), (SCC), [1992] 1 S.C.R. 623; Snelgrove v. Newfoundland and Labrador (Justice and PublicSafety), 2020 NLSC 75; Petten v. E.Y.E. Marine Consultants (1994), (NL SC), 120 Nfld. & P.E.I.R. 313, 373 A.P.R.313 (Nfld. S.C.(T.D.)); Ewert v. Canada, 2018 SCC 30 , [2018] 2 S.C.R. 165; Solosky v. R., (SCC), [1980] 1S.C.R. 821; STATUTES CONSIDERED: Royal Newfoundland Constabulary Act, 1992, S.N.L. 1992, c.

R-17; Royal Newfoundland ConstabularyPublic Complaints Regulations, C.N.R. 970/96 RULES CONSIDERED: Rules of the Supreme Court 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] Constable Joseph Smyth of the Royal Newfoundland Constabulary is facing a public complaint about his conduct during atraffic stop. [2] The Chief of the Royal Newfoundland Constabulary has different roles to play and different decisions to make once a memberof the public complains about a police officer. The Chief has a role in certain decisions about the investigation of a complaint.

And, theChief has to make decisions that affect the employment status of the member during the time that the complaint is proceeding. [3] The Chief had scheduled a hearing to consider Mr. Husaini’s complaint after which he would have had the statutory authorityto either dismiss the complaint or discipline Cst. Smyth. The Chief had earlier suspended Cst. Smyth without pay, and he had also madea public statement regarding the complaint. [4] Cst. Smyth says that any reasonable person who read the Chief’s statement and his reasons for suspending Cst.

Smyth wouldbelieve that the Chief had already made up his mind about the validity of the complaint. Cst. Smyth therefore asked the Court toprohibit the Chief, or anyone under his command, from holding the hearing or having anything further to do with the complaint process. [5] The Chief has since decided to send the matter on to the Royal Newfoundland Constabulary Public Complaints Commission(the “Commission”). He therefore will have no further involvement as a decision-maker in the complaint process. [6] But, Cst. Smyth still wants his application based on reasonable apprehension of bias to be heard.

The Chief says thatapplication is moot; that there is no need for the Court to consider whether there is a reasonable apprehension of bias, which shouldpreclude his further participation in the complaint process because he will have no further participation in the process. [7] In response, Cst. Smyth says that the question of reasonable apprehension of bias is not moot, and even if it is, then thecircumstances are such that the Court should decide the issue anyway.

He also says that even if an Order of prohibition and mandamusis not necessary, the Court can and should consider whether it can issue a declaration that Cst. Smyth had a reasonable apprehension ofbias on the part of the Chief. [8] I have decided that the issue of reasonable apprehension of bias in the complaint process is moot, that I should not decide theissue, and that this is not a case in which a declaratory remedy is available. ISSUES [9] The following issues arise on the current application: 1.

Should the reasons provided by the Chief for referring the matter to the Commission form part of the record on this application? 2. Is the issue of reasonable apprehension of bias on the part of the Chief moot? 3. If that question is moot, should the Court decide it anyway? 4. Should the Court allow Cst. Smyth to amend his pleadings to include a claim for a declaration that there is a reasonableapprehension that the Chief is biased against him? ANALYSIS The Public Complaint Procedure in the Royal Newfoundland Constabulary Act, 1992 and Regulations

[ 10 ] The context for each of the decisions I have to make is the public complaint investigation and related hearings process set out in the Royal Newfoundland Constabulary Act, 1992 , S.N.L. 1992, c. R-17 , and the Royal Newfoundland Constabulary Public Complaints Regulations , C.N.R. 970/96, as amended. [ 11 ] In

summary, the procedure insofar as is relevant to this case is as follows: • A member of the public makes a formal complaint ( Act , s. 22; Regs. s. 4); • The complaint is referred to the Chief ( Act , s. 24(1)); • The Chief investigates the complaint ( Act , s. 24(3)) and may appoint a police officer to conduct the investigation ( Act , s. 24(4)); • Following the investigation, the Chief may settle or dismiss the complaint ( Act , s. 25(1)(

a) or (b)); • If the complaint is neither settled nor dismissed, then the Chief holds a hearing on notice to the officer ( Regs. , s. 10); • If the officer does not plead guilty before the Chief, then the Chief affords the complainant and the officer an opportunity to be heard, and considers the investigation report ( Regs. , ss. 13 and 15); • At the conclusion of the hearing, the Chief may dismiss the complaint or discipline the officer ( Act , s. 25(1)(

b) or (c); Regs ., ss. 13 and 14; • Either the police officer, if disciplined, or the complainant may appeal the decision of the Chief to the commissioner; • If the Chief believes it to be in the public interest, the Chief may transmit the complaint directly to the Commissioner who must then consider the complaint as if there were an appeal under s. 25 ( Act , s. 24(5)); • Whether a complaint comes to the Commissioner by direct transmittal or appeal, the Commissioner must investigate the complaint, attempt to settle it, and consider confirming the decision of the Chief.

If the matter is not settled and the Chief’s decision not confirmed, then the Commissioner can either dismiss the complaint summarily or refer the matter to an adjudicator to hold a hearing, which even in the case of appeal is effectively a trial de novo and not a hearing to review the Chief’s decision for error ( Act , ss. 26- 33). Should the reasons that the Chief gave for referring the matter to the Commission form part of the record on this application? [ 12 ] The Chief sought to supplement the record of the proceeding that the Court will consider.

He argues that I should consider his letter to the Commissioner outlining his reasons for transmitting the complaint directly under s. 24(5) of the Act . Cst. Smyth opposed that request because he said that supplementing the record is unnecessary and the decision of the Chief is prejudicial to him. [ 13 ] The parties agree that the judicial approach to determining the scope of the record on any judicial review of an administrative proceeding is a functional one.

The question is whether the Court needs to consider the supplemental material in order to fulfill its role. [ 14 ] I am being asked to decide whether the decision of the Chief to transmit the complaint directly to the Commissioner renders the question of bias on the part of the Chief moot. It is not necessary that I understand the reasons for the Chief exercising his discretion to transmit the complaint under s. 24(5). The matter was transmitted and that removes the Chief from any further participation as a decision-maker in respect of this complaint.

The questions of mootness and availability of declaratory relief turn on the fact of transmittal and not on the reasons for it. [ 15 ] Therefore, I deny the application of the Chief for an Order supplementing the record with the reasons for direct transmittal of the complaint. Is the issue of reasonable apprehension of bias on the part of the Chief moot? [ 16 ] Cst. Smyth’s Originating Application ends at paragraph 19 with the following request for relief: Despite the establishment of a reasonable apprehension of bias the Respondent has refused to disqualify himself and the Applicant therefore seeks:

(1) An Order in the nature of prohibition prohibiting the Chief of Police or any police officer under his command from proceeding with a disciplinary hearing and directing him to send the matter to the Commissioner of the Public Complaints Commission for determination;

(2) An Order in the nature of certiorari quashing the decision of the Chief of Police to proceed with the investigation and a disciplinary hearing;

(3) Costs of this Application on a solicitor and client basis;

(4) Any other and further Order this Honourable Court deems just and appropriate. [ 17 ] The prayer for relief makes it clear that Cst. Smyth did not ask the Court to make a finding of reasonable apprehension of bias in a vacuum, but as a step along the path toward ordering the remedies that he requested. He wanted the Court to say that because there was a reasonable apprehension of bias, the Chief’s participation in the complaint process should end and the process should continue under the auspices of the Commissioner.

[18] However, those goals were realized when the Chief transmitted the complaint directly to the Commissioner. According to thecomplaint process prescribed by the Act and Regulations, once the complaint was transmitted to the Commissioner the Chief would nolonger participate in the process as a decision-maker (the Act does allow the Chief to seek permission to intervene in the Commissionprocess, but only as a participant). [19] It is not the function of the Court to answer a question in a vacuum.

The leading case on the doctrine of mootness is Borowski v.Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, in which the court described the doctrine in the followingmanner: 15 The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely ahypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving somecontroversy which affects or may affect the rights of the parties.

If the decision of the court will have no practical effect on such rights,the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commencedbut at the time when the court is called upon to reach a decision. Accordingly, if, subsequent to the initiation of the action or proceeding,events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties,the case is said to be moot.

The general policy or practice is enforced in moot cases unless the court exercises its discretion to departfrom its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter. [20] The decision of the Chief to transmit the complaint directly to the Commissioner rendered the question of reasonableapprehension of bias abstract and hypothetical. Once the transmittal occurred, the Chief no longer had the authority to make decisionsthat affect Cst. Smyth’s rights in respect of the complaint. [21] Cst.

Smyth says that there is still a live controversy between him and the Chief because he is still a member of the RoyalNewfoundland Constabulary. He will be required to interact with the Chief throughout the remainder of his career, and future decisionsthe Chief will make about him could have profound effect on him. Therefore, Cst. Smyth says that his rights are still engaged in theresolution of the question of the reasonable apprehension of bias.

He and the Chief have opposing views on the question of reasonableapprehension of bias and therefore continue to be adversaries in a dispute with tangible consequences. [22] An allegation of reasonable apprehension of bias is a claim that the decision-maker has prejudged the outcome and thusrendered the process unfair. As expressed by Sopinka, J. for the majority of the Supreme Court in Old St. Boniface Residents Assn. Inc.v.

Winnipeg (City), (SCC), [1990] 3 S.C.R. 1170, at paragraph 94: … The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that anyrepresentations at variance with the view, which has been adopted, would be futile.

Statements by individual members of council, whilethey may very well give rise to an appearance of bias, will not satisfy the test unless the court concludes that they are the expression of afinal opinion on the matter, which cannot be dislodged. … [23] In considering whether a reasonable apprehension of bias exists, the Court must pay attention to the context, including thelegislative and regulatory scheme, and the function of the decision within and without that context: Old St. Boniface; and NewfoundlandTelephone Co. v.

Newfoundland (Public Utilities Board.), (SCC), [1992] 1 S.C.R. 623. [24] Consequently, the question of reasonable apprehension of bias cannot be determined divorced from the context in which thebias may manifest. [25] It follows, therefore, that a determination that Cst. Smyth had a reasonable apprehension that Chief Boland was biased in thecontext of this complaint process would have no tangible impact on the assessment of fairness in any other dispute or interaction that theparties may have in the future.

The question of reasonable apprehension of bias is not a live question with real consequences dependenton its outcome. [26] The question of reasonable apprehension of bias is moot. Should the Court decide the question anyway? [27] As the Supreme Court noted in Borowski, the rule that the Court will refuse to answer moot questions is not absolute, and theCourt retains a discretion to entertain such a question. This discretion must be exercised judicially after consideration of factors rooted inthe rationale for the doctrine of mootness. The rationale is threefold.

First, insistence on a real dispute between interested adversariesprovides the best forum for ensuring thorough consideration of the issues. Second, scarce judicial resources ought not be allocated toanswer hypothetical questions to the detriment of litigants whose rights are engaged in their cases.

Third, answering questions in theabsence of a dispute between interested parties is not the role of the judicial branch under our system of government, and threatens tointrude on the powers of the legislatures. [28] The rationale for the doctrine of mootness becomes a three-part test to use in deciding whether the Court ought to hear a matterthat is moot. First, the Court must consider whether there are collateral consequences for the parties, or others with a stake in theoutcome, which provide sufficient adversarial context for consideration of the otherwise moot issue.

Second, the Court can decide anissue that is moot as between the parties if the issue is one that “is capable of repetition, yet evasive of review” (Borowski, at para. 45),because the decision of the Court will provide necessary guidance to other litigants and the public. Third, in exercising discretion to heara moot matter the Court should consider the importance of the question but not overstep the function of the judicial branch ofgovernment by deciding an abstract question best left to the legislative branch. [29] Cst. Smyth says that this matter will have collateral consequences for him.

This argument is similar to the position hearticulated in respect of whether there is a live controversy to address. He says that because he is a police officer, he will have to interactwith the Chief, and that a determination of the question of reasonable apprehension of bias will protect him from such bias on the part ofthe Chief in the future. However, he did not identify any specific situations in which a finding of reasonable apprehension of bias wouldbe of assistance to him. Moreover, as already noted, a finding of reasonable apprehension of bias is one made in the context of a

decision-making function. It is not a finding that a decision-maker is generally biased against or for a party but that the adjudicator has aclosed mind in respect of the issue under consideration. It cannot be translated from one adjudicative context to another. [30] Cst. Smyth says that a decision from this Court on the issue of reasonable apprehension of bias will be a guide to the conduct ofthe Chief in dealing with other complaints under the Act, and aid other officers facing complaints in assessing whether there is areasonable apprehension of bias in their cases.

However, no direction is required from this Court to the Chief to avoid bias in performinghis functions under the public complaints process. Further, disqualification of an adjudicator for apprehension of bias is a flexibleremedy for a fact-specific issue: Newfoundland Telephone. The application of the test for bias is better left to situations in which therights of litigants depend on the outcome. The public complaints process under the Act is not evasive of review and it has been reviewedby this Court on numerous occasions, most recently in Snelgrove v.

Newfoundland and Labrador (Justice and Public Safety), 2020 NLSC75. [31] Cst. Smyth also argues that I should deal with the issue raised in this proceeding because it will help delineate the variousfunctions of the Chief under the Act and Regulations. However, the questions regarding the overlap of the Chief‘s various functions andresponsibilities in this case are narrow.

It would not be appropriate for the Court in the absence of a real dispute to express broad viewsregarding the Chief’s role within the structure of the complaints process established by the legislative branch. [32] Consequently, I decline to exercise my discretion to resolve the moot question of reasonable apprehension of bias. Should the Court allow Cst.

Smyth to amend his pleadings to include a claim for a declaration that there is a reasonableapprehension of bias on the part of the Chief? [33] I have decided that the question of reasonable apprehension of bias is moot because neither an order prohibiting the Chief fromfurther acting, nor an order directing that he send the matter directly to the Commission, is necessary to resolve a live controversybetween the parties. [34] As an alternative position, Cst.

Smyth asks that the Court allow him to amend his Originating Application to allow him to claima declaration of reasonable apprehension of bias as a remedy. [35] A reading of Rule 7.16 of the Rules of the Supreme Court 1986, S.N.L. 1986, c. 42, Sch. D, will make it apparent as to thebenefit that Cst. Smyth sees in seeking a declaratory judgment in light of my findings on the question of mootness: 7.16.

No proceeding shall be open to objection on the ground that only a declaratory judgment or order is sought thereby, and the Courtmay make binding declarations of right whether or not any consequential relief is or could be claimed. [36] An amendment should not be allowed if it does not raise a triable issue, although the standard that must be met in assessing thatissue is a low bar, similar to the test applied on an application to strike under Rule 14.24(1)(a): Petten v. E.Y.E. Marine Consultants(1994), (NL SC), 120 Nfld. & P.E.I.R. 313, 373 A.P.R. 313 (Nfld. S.C.(T.D.)).

The amendment will be allowedunless it is plain and obvious that the proposed pleading does not disclose a reasonable cause of action. [37] A declaratory remedy is available without a cause of action: Ewert v. Canada, 2018 SCC 30 , [2018] 2 S.C.R. 165, atparagraph 81.

That does not mean, however, that a claim for a declaration should be allowed to proceed past the pleadings stage withoutscrutiny. [38] In my view, a claim for a declaratory remedy ought be struck at the pleadings stage, or not be allowed as an amendment, whereit is clear that the circumstances in which the Court would be moved to issue a declaration are not pleaded. [39] The Supreme Court in Solosky v. R., (SCC), [1980] 1 S.C.R. 821, at paragraph 16, described the factors thatshould influence the Court in determining whether to grant a declaration: As Hudson suggests in his

article "Declaratory Judgments in Theoretical Cases: The Reality of the Dispute" (1977), 3 Dalhousie L.J. 706,p. 708: The declaratory action is discretionary and two factors which will influence the court in the exercise of its discretion are the utility of theremedy, if granted, and whether, if it is granted, it will settle the questions at issue between the parties. The first factor is directed to the "reality of the dispute". It is clear that a declaration will not normally be granted when the dispute isover and has become academic, or where the dispute has yet to arise and may not arise.

As Hudson stresses, however, one mustdistinguish, on the one hand, between a declaration that concerns "future" rights and "hypothetical" rights, and, on the other hand, adeclaration that may be "immediately available" when it determines the rights of the parties at the time of the decision together with thenecessary implications and consequences of these rights, known as "future rights" (p. 710). [40] In this case, a declaration that Cst. Smyth had a real apprehension of bias on the part of the Chief would have no utility.

In thewords of the Supreme Court, the dispute regarding the decision of the Chief is “over and has become academic,” and any future disputebetween the Chief and Cst. Smyth “has yet to arise and may not arise.” Even if he were to establish that there would have been areasonable apprehension of bias, the alternative order sought by Cst. Smyth would not be a declaration of his rights, but a declaration thathe was right about his allegation.

There are no circumstances where the Court would grant such a declaratory order in the absence ofany real utility. [41] Therefore, the application for an amendment to include a plea for a declaratory remedy is dismissed.

DISPOSITION and COSTS [ 42 ] The Originating Application for an Order in the nature of prohibition and mandamus is dismissed, and the application allowing amendment of the Originating Application to include a claim for a declaration, is dismissed. [ 43 ] At the time that Cst. Smyth issued this Application, the Chief had scheduled a hearing before him for April 16. Cst. Smyth sought interim relief in the form of an injunction staying the hearing set for April 16.

He withdrew his request for interim relief because the Court set the Originating Application for a hearing sufficiently in advance of the April 16 disciplinary hearing. In the meantime, public health measures related to the COVID-19 pandemic led to closure of the Court to all but urgent matters, and in a brief hearing, counsel for the Royal Newfoundland Constabulary advised that the disciplinary hearing was postponed indefinitely. This Application was likewise postponed. On May 20, 2020, the Court informed the parties that the hearing would proceed on June 1.

On May 21, the Chief transmitted the complaint to the Commissioner, which rendered the question raised on the application moot. [ 44 ] The issue of reasonable apprehension of bias raised by the Originating Application remained live until the Chief transmitted the matter to the Commissioner. In the circumstances, the Chief is entitled to the costs of the hearing of June 1 and June 4, to be taxed on Column III of the Rules of the Supreme Court 1986 , but otherwise the parties shall bear their own costs. _____________________________ Daniel M. Boone Justice