2014 QCCQ 4544, 2014 QCCQ 4544

Unofficial English Translation Beaudin c. Simard 2014 QCCQ 4544 COURT OF QUEBEC Administrative and Appeals Division CANADA PROVINCE OF QUEBEC DISTRICT OF QUEBEC “Civil Division” No: 200-80-006076-135 DATE: June 2, 2014 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE JEAN-F. KEABLE ______________________________________________________________________ JACQUELIN BEAUDIN Appellant v.

Mtre CLAUDE SIMARD in his capacity as Police Ethics Commissioner Respondent and ATTORNEY GENERAL OF QUÉBEC IMPLEADED PARTY JUDGMENT ON AN APPEAL FILED UNDER SS. 241 TO 255 OF THE POLICE ACT ( C.Q.L.R., c. P-13.1, ss. 241 –255) Introduction [ 1 ] On April 19, 2013, the Police Ethics Committee (the Committee), chaired by Mtre Pierre Drouin, decided that [ translation ] "the application of

section 230 of the Police Act is not inconsistent with

section 18.2 of the Quebec Charter ". [1] [ 2 ] The Committee found that Officer Jacquelin Beaudin, an ex-member of the Sûreté du Québec, had committed actions that were in breach of

section 7 of the Code of ethics of Québec police officers , [2] which states that officers must "respect the authority of the law and of the courts and must collaborate in the administration of justice". [ 3 ] As penalty, the Committee ordered his dismissal. [3] [ 4 ] The ex-police officer exercises his right to appeal as described, inter alia , in sections 238 , 241 , 252 , and 253 of the Police Act : [4] 238. An appeal may be brought before a judge of the Court of Québec from a final decision of the ethics committee subsequent to the filing of a citation.

However, where a penalty is to be imposed under the decision, the decision shall not be appealed from until the penalty has been imposed. 2000, c. 12, s. 238 .

241. Any person who is a party to proceedings before the ethics committee may bring an appeal from any final decision of the committee before a judge of the Court of Québec. 2000, c. 12, s. 241 . 252. The judge may confirm the decision submitted to him; conversely, he may quash the decision and render the decision which, in his judgment, should have been rendered in the first instance. 2000, c. 12, s. 252 . 253. The decision of the judge is final and without appeal and cannot be submitted to an arbitrator contemplated by

Chapter IV of the Labour Code (chapter C-27) or to an arbitration officer contemplated by Division III of the Act respecting the Syndical Plan of the Sûreté du Québec (chapter R-14). It is executory notwithstanding any contrary Act or agreement. The director of the police force of which the police officer is a member shall inform the Commissioner of the imposition of the penalty decided by the judge. 2000, c. 12, s. 253 ; 2006, c. 33, s. 10 . Issues in dispute and the Court's response [ 5 ] In a context where the adoption of a Code of ethics of Québec police officers (the Code of Ethics ) is provided for under

section 127 of the Police Act and this Code expressly refers to the Charter of human rights and freedoms (the Charter ), the appellant asks the Court to find that the Committee [ translation ] "erred by failing to conclude that

section 230 of the Police Act was constitutionally inapplicable because this provision is inconsistent with

section 18.2 of the Charter of human rights and freedoms ". [5] [ 6 ]

Section 3 of the Code of Ethics , sections 127 and 230 of the Police Act , and

section 18.2 of the Charter state: Code of Ethics 3. This Code is intended to ensure better protection of the public by developing high standards of public service and professional conscience within police departments and to ensure the respect of human rights and freedoms including those set out in the Charter of human rights and freedoms (chapter C-12 ). [6] O.C. 920-90, s. 3 . * * * Police Act : 127.

The Government may establish, by regulation, the Code of ethics of Québec police officers setting out the duties incumbent upon and the standards of conduct to be upheld by police officers in their relations with the public. 2000, c. 12, s. 127 . 230. The Commissioner shall submit to the committee, by way of a citation, every final decision of a Canadian court convicting a police officer of a criminal offence constituting a transgression of the Code of ethics , except if a sanction of dismissal under the first paragraph of

section 119 is imposed on the police officer. The committee shall accept a duly certified copy of the judicial decision as proof of guilt. This

section also applies to any decision of a foreign court convicting a police officer of a criminal offence which would have entailed the application of the first paragraph had it been committed in Canada. [7] 2000, c. 12, s. 230 ; 2008, c. 10, s. 16 . * * * Charter of human rights and freedoms : 18.2.

No one may dismiss , refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence , if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence . [8] 1982, c. 61, s. 5; 1990, c. 4, s. 133. [ 7 ] In the alternative, the appellant asks the Court to decide that the Committee [ translation ] "erred by being unreasonably and arbitrarily severe when it ordered the appellant's dismissal as penalty for breaching

section 7 of the Code of Ethics of Quebec Police Officers ". [9] [ 8 ] For the reasons set out below, the Court dismisses the appeal. Whichever standard applies to the [ translation ] "constitutional issue", the Court finds that the Committee's decision is correct in law. Furthermore, the Court does not see any reason to consider the penalty of dismissal imposed by the Committee to be unreasonable, too severe, or arbitrary

The Committee's decision A

summary of the facts [ 9 ] The statement of facts related by the Committee in paragraphs 1 to 27 of its decision is acknowledged by the parties to be accurate. There is no need to review it in detail except to reiterate those elements essential to an understanding of this appeal. [ 10 ] As indicated by the Committee, on May 29, 2007, Officer Beaudin was the subject of two informations: [ translation ] [16] On May 29, 2007, an information was issued against Officer Beaudin, in case docket number 650-01-013153-077, alleging the following: 1.

Between March 21, 2006, and March 27, 2006, at Sept-Îles, District of Mingan, did commit the theft of a sum of money ($411.00) from the City of Sept-Îles of a value not exceeding $5,000, thereby committing the offence set out in

section 334 ( b )(

i) of the Criminal Code . 2. Between March 21, 2006, and July 27, 2006, at Sept-Îles, District of Mingan, by deceit, falsehood or other fraudulent means, did defraud the City of Sept-Îles, of a sum of money ($411.00) of a value not exceeding $5,000, thereby committing the offence set out in section 380(1) ( b )(

i) of the Criminal Code . 3. Between July 23, 2006, and September 14, 2006, at Sept-Îles, District of Mingan, did commit the theft of a sum of money ($175.00) from the City of Sept-Îles of a value not exceeding $5,000, thereby committing the offence set out in

section 334 ( b )(

i) of the Criminal Code . 4. Between July 23, 2006, and September 14, 2006, at Sept-Îles, District of Mingan, by deceit, falsehood, or other fraudulent means, did defraud the City of Sept-Îles, of a sum of money ($175.00) of a value not exceeding $5,000, thereby committing the offence set out in section 380(1) ( b )(

i) of the Criminal Code . 5. Between November 9, 2004, and March 14, 2005, at Sept-Îles, District of Mingan, did commit the theft of a sum of money ($140.00) from the City of Sept-Îles of a value not exceeding $5,000, thereby committing the offence set out in

section 334 ( b )(

i) of the Criminal Code . 6. On or about September 28, 2006, at Sept-Îles, District of Mingan, by deceit, falsehood, or other fraudulent means, did defraud the City of Sept-Îles, of a sum of money ($140.00) of a value not exceeding $5,000, thereby committing the offence set out in section 380(1) ( b )(

i) of the Criminal Code . [17] On May 29, 2007, another information was issued against Officer Beaudin, in docket number 650-01-01352-079, alleging the following: 1. Between March 21, 2006, and July 27, 2006, at Sept-Îles, District of Mingan, did, as a public officer, commit a fraud or breach of trust in connection with the duties of his office, thereby committing the offence set out in

section 122 of the Criminal Code . 2. Between March 21, 2006, and July 27, 2006, at Sept-Îles, District of Mingan, being employed by the Sûreté du Québec and entrusted with the receipt of a thing, to wit: a sum of money, did refuse or fail to deliver this thing to a person who was authorized to demand it and who did demand it, thereby committing the offence set out in

section 337 of the Criminal Code . 3. Between July 23, 2006, and September 14, 2006, at Sept-Îles, District of Mingan, did, as a public officer, commit a fraud or breach of trust in connection with the duties of his office, thereby committing the offence set out in

section 122 of the Criminal Code . 4. Between July 23, 2006, and September 14, 2006, at Sept-Îles, District of Mingan, being employed by the Sûreté du Québec and entrusted with the receipt of a thing, to wit: a sum of money, did refuse or fail to deliver this thing to a person who was authorized to demand it and who did demand it, thereby committing the offence set out in

section 337 of the Criminal Code . 5. Between November 9, 2004, and March 14, 2006, at Sept-Îles, District of Mingan, did, as a public officer, commit a fraud or breach of trust in connection with the duties of his office, thereby committing the offence set out in

section 122 of the Criminal Code . 6. Between November 9, 2004, and 14/03/2005, at Sept-Îles, District of Mingan, being employed by the Sûreté du Québec and entrusted with the receipt of a thing, to wit: a sum of money, did refuse or fail to deliver this thing to a person who was authorized to demand it and who did demand it, thereby committing the offence set out in

section 337 of the Criminal Code . [ 11 ] The entire chain of events is recounted in paragraphs 18 to 27 of the Committee's decision: [ translation ] [18] The trial in both files has been scheduled for November 9 and 10, 2009. [19] On November 10, 2009, Officer Beaudin pleaded guilty to counts 1 and 3 in docket number 650-01-013153-077 and the Crown prosecutor withdrew the other counts. The charges in docket number 650-01-013152-079 were also withdrawn. [20] The Court convicted Officer Beaudin on the following counts . Count no. 1

Between March 21, 2006, and July 27, 2008, at Sept-Îles, District of Mingan, did commit the theft of a sum of money ($411) from the City of Sept-Îles of a value not exceeding $5,000, thereby committing the offence set out in

section 334 ( b )(

i) of the Criminal Code . Count no. 3. Between July 23, 2006, and September 14, 2006, at Sept-Îles, District of Mingan, did commit the theft of a sum of money ($175) from the City of Sept-Îles of a value not exceeding $5,000, thereby committing the offence set out in

section 334 ( b )(

i) of the Criminal Code . [21] On November 10, 2009, the Court ordered an absolute discharge regarding the charges to which Officer Beaudin had pleaded guilty . [22] In compliance with the second paragraph of

section 119 of the Police Act (the Act ), a disciplinary hearing took place on October 22, 2010. [23] On November 29, 2010, the disciplinary body of the Sûreté du Québec recommended Officer Beaudin's dismissal. [24] On December 6, 2010, this recommendation was confirmed by the Director-General of the Sûreté du Québec, Richard Deschesnes. [25] On February 2, 2011, the recommendation for dismissal was sanctioned by the minister of Public Security in compliance with the Regulation respecting the ethics and discipline of the members of the Sûreté du Québec applicable here.

This date is the official date of Officer Beaudin's dismissal, as appears from the letter signed by the minister Robert Dutil on February 2, 2011, and from the letter by the Director-General of the Sûreté du Québec, Richard Deschesnes, dated February 14, 2011. [26] Since September 27, 2011, Officer Beaudin has been working as a police officer for the Public Security of Pakua Shipi [27] On October 6, 2011, the Commissioner filed citation C-2011-3778-1 before the Committee. (Citations omitted.) Application of

section 230 of the Police Act and of the Charter [ 12 ] In paragraphs 31 to 47 of its decision, the Committee summarized the submissions of the police officer and the Attorney General on the constitutional ground and clearly expressed its reasons for dismissing this ground in paragraphs 65 to 74: [ translation ] [65] After analyzing the arguments raised by both counsels in support of their submissions, the Committee concludes that, for the reasons submitted above by counsel for the Attorney General, its application of

section 230 of the Act in this case was not inconsistent with

section 18.2 of the Quebec Charter . [66] Indeed, first, as decided by the Supreme Court of Canada in Therrien and Ville de Montréal , absolute discharges or pardons do not have a retroactive effect during the period leading up to the discharge . [67] Second, in Maksteel and Lévis (City of) v.

Fraternité des policiers de Lévis inc. , the Supreme Court also recognized that when committed by a police officer, a single set of actions can have not only criminal but also civil, disciplinary, or ethical consequences . [68] Thus, when the conduct of a police officer leads to criminal consequences and, as the case may be, civil, disciplinary, or ethical consequences, the fact that the officer is convicted of a criminal offence does not shield him from the other civil, disciplinary, or ethical consequences related to his conduct . [69] In Therrien , the Supreme Court lists the four conditions that must be met for

section 18.2 of the Quebec Charter to apply: (1) a dismissal, a refusal to hire or any kind of penalty; (2) in the persons employment; (3) owing to the mere fact that the person was convicted of a penal or criminal offence; (4) if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence. [70] By imposing a penalty on Officer Beaudin pursuant to sections 230 and 234 of the Act , the Committee was not imposing a "penalty" on him "owing to the mere fact" that he had a criminal record, but because he had breached his code of ethical conduct . [71] Furthermore, having pleaded guilty to charges of committing a theft while on duty, the penalty that the Committee could impose on him would not be "owing to the mere fact" that Officer Beaudin had a criminal record but, more importantly, that he had lost his moral authority and was consequently unable to perform his duties as a peace officer. [72] In short, the penalty to be imposed on Officer Beaudin is not "owing to the mere fact" that he pleaded guilty to the charges of theft; essentially, it is based on the breach of conduct resulting from the actions that led to his criminal conviction. [73] Consequently, one of the conditions for

section 18.2 of the Quebec Charter to apply is not met. Officer Beaudin cannot benefit from it despite his pardon. [74] The Committee dismisses the constitutional ground submitted by Officer Beaudin based on

section 18.2 of the Quebec Charter . (Citations omitted.) Imposition of the penalty

[ 13 ] The Committee summarized the Attorney General and the Commissioner's submissions on the penalty (paras. 79 to 87). It then went on to reiterate the importance of the rules of professional conduct imposed on police officers (paras. 88 to 94) and analyzed the relevant objective factors (aggravating or not) and subjective factors (paras. 95 to 114) to explain that dismissal was the appropriate penalty: [ translation ] [88] Parliament has ascribed to the Committee the role of guardian of the duties and standards of conduct imposed on police officers by the Code . As such, it is incumbent upon the Committee to ensure that the penalties it imposes protect the public. [89]

Section 3 of the Code states its objective: 3. This Code is intended to ensure better protection of the public by developing high standards of public service and professional conscience within police departments and to ensure the respect of human rights and freedoms including those set out in the Charter of human rights and freedoms . [90] Because the ethical system is intended to protect the public, it goes without saying that citizens must continue to have confidence in the office of police officer.

In reaching its decision, the Committee must therefore ask itself whether a citizen who is reasonably informed of the facts of this case would continue to have confidence in Officer Beaudin. [91] According to

section 235 of the Act , the Committee must take into consideration the seriousness of the misconduct when it imposes a penalty, taking into account the circumstances of the case and the content of the police officer's disciplinary record. [92] In Belleau , the Supreme Court adds: … most, if not all, criminal offences committed by a municipal police officer will be connected to his or her employment due to the importance of public confidence in the police officer’s abilities to discharge his or her duties. [93] In Longpré , although Hébert, J. says that sections 115 and 119 of the Act are not applicable to disciplinary matters, he points out that the Committee must nonetheless take into account that, through these provisions, Parliament clearly expresses its position that criminal records are inconsistent with the office of police officer: [ translation ] [48] It is obvious that the legislator intended to prevent anyone with a criminal record from being a police officer ... [49] Certainly, sections 115 and 119 of the Act are not applicable here, but by strict analogy, they clearly express the legislator's intention that the existence of a criminal record is inconsistent with the office of police officer.

Thus, it is rational and reasonable for the Committee to consider that the police ethics process could not be more lax or lead to a more lenient conclusion under the circumstances. [94] Such that, as the Court states, in Belleau , when determining this penalty, the Committee: ... must not lose sight of the special role of police officers and the effect of a criminal conviction on their capacity to carry out their functions.

A criminal conviction, whether it occurs on-duty or off-duty, brings into question the moral authority and integrity required by a police officer to discharge his or her responsibility to uphold the law and to protect the public. It undermines the confidence and trust of the public in the ability of a police officer to carry out his or her duties faithfully ... .

Objective criteria [95] In this case, the Committee considers the fact that Officer Beaudin was convicted of two criminal offences of theft from the City of Sept-Îles to be an aggravating factor. [96] Another aggravating factor is that the very nature of the misconduct directly affects both integrity and honesty, which are values that are inherent to policing. [97] A further aggravating factor is that these thefts were committed in the performance of duties that were directly related to some of Officer Beaudin's tasks, specifically, collecting fines. [98] The Committee considers the fact that Officer Beaudin stole from the City of Sept-Îles a second time, when he knew himself to be the subject of an internal investigation for similar facts, to be an aggravating factor.

Captain Renaud Ringuette, of the Sûreté du Québec, had met with him to ask him about the circumstances of the payment of Mr. Denis's fine. [99] Officer Beaudin does not, however, have a disciplinary record. Subjective criteria [100] Subjective criteria concern the person of Officer Beaudin himself. [101] In determining the penalty, the Committee takes into account the fact that Officer Beaudin had been a police officer since 1989, some twenty-two years, when he was dismissed by his employer in February of 2011.

He is an experienced police officer who was not unaware that he was breaking the law. [102] In determining the penalty, the Committee is faced with a police officer who has been criminally convicted of committing two thefts in the above-described circumstances.

[103] Moreover, Officer Beaudin testified that, at the time of the events, he had gambling issues that led him to get treatment and that he has not relapsed since. [104] On this point, there is no supporting evidence for this claim beyond the police officer's assertion. [105] Furthermore, the Committee considers that, even if the gambling issue were proved, it would not justify the ethical breaches of conduct when they are considered in tandem with the aggravating factors. [106] Because one of the objectives of the Act is to protect the public, the Committee considers that a person who was reasonably aware of the facts of the case could not trust Officer Beaudin and would not want to have to deal with a police officer who displayed such conduct. [107] In Abel , the Committee said: [ translation ] [21] It is therefore police officers' duty to respect people, present the appearance of neutral justice, display honesty and integrity, and conduct themselves with moderation and restraint. [22] Police officers must never forget that they hold moral authority over people, which must be used exclusively for the purposes of their mission. [108] Furthermore, in Côté , the sentencing decision of Aubin, J. stated that Officer Côté would not have received a conditional discharge had he been convicted of a serious offence like theft, which is the case here: [ translation ] It is all told a somewhat isolated incident due to an error in judgment that does not call into question or affect his good morals, credibility, or integrity, as might have been the case, for example, had a theft or other fraudulent or dishonest acts been committed. [109] For these reasons, the Committee cannot apply the decision rendered in Côté to this case, as Officer Beaudin would have us do, since he committed thefts, which are all the more serious because they were committed by a police officer in the performance of his duties. [110] Furthermore, the Committee cannot take into account the fact that, since his dismissal by his employer, Officer Beaudin has been working as a peace officer on an Aboriginal reserve as a police officer for the Public Security of Pakua Shipi. [111] The Committee does not have the jurisdiction to question this community’s decision to hire a police officer who had previously been dismissed from his duties as a peace officer. [112] Nor does the Committee have the authority to give Officer Beaudin back his status of peace officer. [113] In conclusion, the ethical penalty is also intended to show all police officers that conduct such as that Officer Beaudin’s is unacceptable. [114] In the circumstances, the Committee finds that dismissal is the appropriate penalty. [10] (Citations omitted.) [ 14 ] The Committee imposed the dismissal by virtue of its powers under sections 233 to 236 of the Police Act : [11] 233.

The committee shall decide whether the conduct of the police officer constitutes a transgression of the Code of ethics and, if so, shall impose a penalty. Before imposing a penalty, the committee shall allow the parties to be heard in respect of the penalty. 2000, c. 12, s. 233 . 234.

Where the ethics committee comes to the decision that the conduct of a police officer is a transgression of the Code of ethics, it may, within 14 days after the date of the decision, impose on the police officer, for each count, one of the following penalties which may, where applicable, be consecutive: (1) a warning; (2) a reprimand; (3) a rebuke; (4) a suspension without salary for a period not exceeding 60 working days; (5) a demotion; (6) dismissal.

... 2000, c. 12, s. 234 . 235. In determining the penalty, the ethics committee shall take into account the gravity of the misconduct having regard to all the circumstances, and the ethical record of the police officer. ... 2000, c. 12, s. 235 . 236. Every decision of the ethics committee shall be in writing and state the reasons therefor. ... 2000, c. 12, s. 236 ; 2006, c. 33, s. 7 ; 2009, c.59, s. 12 .

Standard of Review Attorney General's theory [ 15 ] Since Supreme Court judgments have on several occasions likened an appeal to a judicial review, [12] the Attorney General of Quebec argues before the Court of Quebec that the legislative intent expressed in the Police Act and other similar statutes is to grant an effective right of appeal that is not equivalent to a judicial review. [ 16 ] To illustrate this point, the Court quotes paragraphs 6 to 13 of the Attorney General's factum, which show the legislative intent expressed in many similar statutes: [ translation ] [6] The Court of Quebec is seized of a statutory appeal from a decision by the Police Ethics Committee. [7]

Section 241 of the Police Act provides for an appeal as of right before the Court of Quebec from any final decision by the Police Ethics Committee: 241. Any person who is a party to proceedings before the ethics committee may bring an appeal from any final decision of the committee before a judge of the Court of Québec. [8]

Section 252 of the Police Act provides that the Court of Quebec enjoys broad powers of intervention: 252. The judge may confirm the decision submitted to him; conversely, he may quash the decision and render the decision which, in his judgment, should have been rendered in the first instance. [9]

Section 253 of the Police Act , for its part, provides that the decision of the judge of the Court of Quebec is final and without appeal: 253. The decision of the judge is final and without appeal and cannot be submitted to an arbitrator contemplated by

Chapter IV of the Labour Code (chapter C-27 ) or to an arbitration officer contemplated by Division III of the Act respecting the Syndical Plan of the Sûreté du Québec (chapter R-14 ). It is executory notwithstanding any contrary Act or agreement. The director of the police force of which the police officer is a member shall inform the Commissioner of the imposition of the penalty decided by the judge. [10] Thus, this is not an exercise of the superintending and reforming power over decisions of the lower courts and bodies.

Rather, it is an appeal before a statutory court, which is itself subject to the superintending and reforming power of the Superior Court. [11] The Attorney General of Quebec therefore argues that the Court of Quebec must apply the test for appeals developed in Housen , which allows for a thorough review of the grounds on any issue of law raised in first instance. [12] In Parizeau , the Court of Appeal found that the legislator intended for the Professions Tribunal to have an appellate function and jurisdiction.

The Attorney General of Quebec argues that this must be the case for the Court of Quebec when it sits in appeal from decisions by the Police Ethics Committee. [13] In this case, according to the legislative intent expressed in the Police Act , the Court of Quebec has the authority to examine the merits of the decision and render the decision that should have been rendered. The statutory right of appeal marks the express legislative will for the Court of Quebec to review the legislative

interpretations accepted by the Police Ethics Committee and to redirect the case law it applied, if need be. [13] (Citations omitted.)

Appellant’s Theory [17] The appellant refers to the Committee's expertise and the deference that must be afforded the Committee by the Court ofQuebec. Furthermore, despite the wording of sections 241 and 252 of the Police Act, the appellant points out that the Court of Quebecmust [translation] "determine the standard of review just as the Superior Court does in the context of judicial review".[14] [18] Consequently, the Court of Quebec must refer to the

definitions of the standard of reasonableness and the standard ofcorrectness established by the Supreme Court in Dunsmuir:[15] [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. ... [50] As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also withoutquestion that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotesjust decisions and avoids inconsistent and unauthorized application of law.

When applying the correctness standard, a reviewing courtwill not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysiswill bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own viewand provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct. [Emphasis added.] [19] When several issues are raised in the context of a single appeal, two standards may co-exist.

Thus, the appellant submits that thestandard of correctness applies to the constitutional issue and the standard of reasonableness applies to the penalty. [20] The appellant argues that the standard of correctness should be applied in accordance with the teachings of the Supreme Courtin Nor-Man Regional Health Authority Inc.[16] [35] An administrative tribunal’s decision will be reviewable for correctness if it raises a constitutional issue, a question of “general law‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’”, or a “truequestion of jurisdiction or vires”.

It will be reviewable for correctness as well if it involves the drawing of jurisdictional lines betweentwo or more competing specialized tribunals (Dunsmuir, at paras. 58-61; Smith, at para. 26; Toronto (City) v. C.U.P.E., Local 79, 2003SCC 63 , 2003 SCC 63, [2003] 3 S.C.R. 77 (“Toronto (City)”), at para. 62, per LeBel J.).

Police Ethics Commissioner's Theory [21] The Commissioner draws inspiration from other Supreme Court judgments to find that the standard of reasonableness applies tothe constitutional issue because deference is due when the Committee interprets its own statute or statutes closely related to itsfunction:[17] [translation] It is established that a specialized administrative tribunal interpreting its own statute or statutes closely related to its function is presumedto be entitled to judicial deference.[18] The reviewing court must examine the reasons of the impugned decision in tandem with the outcome.

The reasons must make it possibleto discern whether the outcome is one of the possible outcomes. The Court must not substitute its own reasons for those of the decisionunder review but, if necessary, it may examine the file to assess the reasonableness of the outcome. Paragraph 12 of Newfoundland and Labrador adds that the court must first seek to supplement the reasons for the impugned decisionbefore trying to subvert them. Moreover, administrative tribunals may rule on questions of law. In Proprio Direct, the Supreme Court ruled on the deference that should be shown in such cases.

The Supreme Court had to rule on ajudgment rendered by a disciplinary committee in matters of real estate brokerage.

Section 136 of the Real Estate Brokerage Act, as itwas then, provided for a right to appeal as of right from any judgment rendered by this committee. The Court decided that deference was appropriate when the administrative tribunal interpreted its own statute or statutes closely relatedto its function. It is only when the question of law is of "central importance" and it is outside its specialized area of expertise that thereviewing court need not apply the rules of deference. If these two elements are not present, the standard of reasonableness applies(Dunsmuir at para. 55 in fine).

In fact, the Supreme Court has recognized that disciplinary panels have the power to apply the Charter when resolving matters properlybefore them.[19] Regarding the applicable standard of judicial review, the Court decided: [45] It seems to me that applying the Dunsmuir principles results in reasonableness remaining the applicable review standard fordisciplinary panels. The issue then is whether this standard should be different when what is assessed is the disciplinary body’sapplication of Charter protections in the exercise of its discretion.

In my view, the fact that Charter interests are implicated does notargue for a different standard.

… [54] Nevertheless, as McLachlin C.J. noted in Catalyst , “reasonableness must be assessed in the context of the particular type of decision making involved and all relevant factors. It is an essentially contextual inquiry” (para. 18). Deference is still justified on the basis of the decision-maker’s expertise and its proximity to the facts of the case. Even where Charter values are involved, the administrative decision-maker will generally be in the best position to consider the impact of the relevant Charter values on the specific facts of the case.

But both decision-makers and reviewing courts must remain conscious of the fundamental importance of Charter values in the analysis. The Supreme Court then adds that an administrative tribunal seized of a dispute over which it has authority is duty-bound to consider and apply the Charter unless its constituent legislation has clearly withdrawn this jurisdiction . [20] Therefore, it is not because an administrative tribunal is called upon to apply the Charter that one must conclude that the issue in dispute is one of central importance to the legal system and that it is outside its area of expertise .

Recently, the Supreme Court warned litigants who might try to ride the wave of cases (specifically, the Nor-Man judgment cited by the appellant), stating that it is possible to review a decision rendered by an administrative tribunal when it concerns general questions of law that are both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise. [21] Indeed, the Supreme Court opines that it is preferable to leave it to the administrative decision-maker to resolve any unclear language in its constituent legislation because of the principle that the legislator chose to entrust the task of choosing one

interpretation from among many reasonable ones to this decision-maker rather than to a court.

The burden of proof to show reasonableness therefore rests on the appellant's shoulders. [22] The outcome chosen by a specialized administrative tribunal arises from the specific context in which this decision is rendered, and the Supreme Court considers that the range of acceptable and rational solutions may vary in relation to this context , thereby requiring deference. [23] The Police Ethics Committee is called upon to examine the conduct of police officers in light of the duties and standards of conduct imposed on them by the Code of Ethics of Quebec Police Officers in their relations with the public.

Section 127 of the Police Act provides for the adoption of this code. As the Committee points out in paragraph 89 of its decision,

section 3 of this Code states that the Committee is called upon to examine all of the duties and standards of conduct of a police officer that are described in

section II of the Code in the context of the rights and freedoms set out in the Charter of human rights and freedoms . The array of Charter rights is for all intents and purposes incorporated into the DNA of this administrative tribunal. Charter issues are not outside its area of expertise. ... It is also worth noting that in Castiglia , [24] the Court of Appeal circumscribed the scope of Parizeau , which was cited by the Attorney General.

With respect to the Court of Quebec, the teachings stated in Proprio Direct still apply: [ translation ] [13] It is well established that the standard applicable to appeals to the Court of Quebec from decisions concerning the penalty by the ACAIQ's Disciplinary Committee is that of reasonableness. The judgment rendered by this Court in Parizeau v.

Barreau du Québec , which ruled that the Professions Tribunal had the jurisdiction of an appellate court rather than the role of a reviewing court when sitting in appeal from the Comité des requêtes du Barreau du Québec, does not call into question the applicable standard in the present case. Here, the Court of Quebec acts as a lay tribunal, which means that it must perform an exercise analogous to judicial review in the context of an appeal from a decision of a specialized administrative body, in accordance with the teachings of the Supreme Court in ACAIQ v.

Proprio Direct Inc . ... [some citations omitted – Emphasis added ) The Court's conclusion as to the standard of review [ 22 ] The Attorney General's theory does not take into account the many Supreme Court and Court of Appeal judgments. Until such time as new legislative amendments are brought, the Court must ignore the Attorney General's theory on the existence of an effective right to appeal. [ 23 ] The Court finds that the Commissioner's theory is the one that best reflects the state of the law. The standard of reasonableness should therefore be favoured with respect to the co-existence of

section 230 of the Police Act and

section 18.2 of the Charter , and with respect to the sanction imposed by the Committee. Application of

section 230 of the Police Act and

section 18.2 of the Charter Appellant’s Theory [ 24 ] The appellant asks the Court to declare

section 230 of the Police Act to be constitutionally inapplicable because he is entitled to invoke the protection offered under

section 18.2 of the Charter . [25] [ 25 ] To this end, the appellant submits that

section 18.2 of the Charter should receive a generous

interpretation by the Court because

section 230 of the Police Act infringes rights and freedoms. [26]

[ 26 ] The appellant then raises the scope of

section 18.2 of the Charter as defined in 2003, in Maksteel : ... 27 To summarize, I find that there is a significant difference between the scope of s. 18.2 and the scope of s. 10. While s. 10 uses the mechanism of protection against discrimination on the basis of enumerated grounds to provide for the right to equality in all spheres of activity, s. 18.2 offers protection that is narrower in scope but easier to administer. In employment, an employee who has been convicted and obtained a pardon, or who has committed an offence that is not connected with the employment, need not endure any stigma arising out of the conviction.

Section 18.2 , therefore, protects the employee from the unjustified social stigma that arises out of a prior conviction. ... 29 As noted earlier, s. 18.2 is intended to protect individuals from unjustified social stigma that operates to exclude a person with a criminal conviction from the labour market. That is the purpose of the provision. [ 27 ] Finally, in paragraphs 80 and 81 of his factum, the appellant concludes that the Court must allow his action: [ translation ]

(80) The disciplinary penalty imposed on the appellant must comply with the rights guaranteed under the Quebec Charter even if the penalty in question is imposed in an ethical context. [27] Arguments to the effect that a penalty imposed on a police officer pursuant to the P.A. (following a citation filed before the Committee under

section 230 of the P.A. ) is not based solely on the stigma related to a conviction or on the criminal record are flawed because if there is no conviction then a citation under

section 230 of the P.A. cannot be brought before the Committee. In short, this

section applies only when there is a conviction. The

interpretation favoured by the Committee ascribes a perfectly absurd meaning to the P.A. , one that is contrary to the teachings of the Supreme Court of Canada. [28]

(81) That being so, we respectfully submit that the applicable conditions for

section 18.2 of the Quebec Charter have been met pursuant to the tests established in Therrien (Re) , a judgment by the Supreme Court of Canada. [29] The Committee's decision, the Attorney General's submissions, and the Court's conclusions. [ 28 ] It is true that

section 230 of the Police Act obliges the Police Ethics Commissioner to submit to the Committee, by way of a citation, "owing to the mere fact that a police officer was convicted of a criminal offence constituting a transgression of the Code of Ethics " and moreover [ translation ] "the evidence that must be made before the Committee can be adduced by simply filing a duly certified copy of the judicial decision as proof of the police officer's guilt". [30] [ 29 ] It is admitted that when he was dismissed from his duties as police officer on April 19, 2013, the appellant had already received an administrative pardon on November 10, 2010, or a pardon pursuant to sections 5 and 6 of the Criminal Records Act [31] because of his guilty plea on November 10, 2009. [ 30 ] Since the guilty plea on the theft charges was entered on November 10, 2009, however, neither the administrative pardon nor the pardon has a retroactive effect.

Consequently, the absolute discharge does not affect the guilty plea. In this respect, the teachings of the Supreme Court and the Court of Appeal are unequivocal: ... The Supreme Court in Therrien : [32] 122 Accordingly, I find, as did the Court of Appeal, that an objective analysis of the Act does not support the appellant’s argument that the pardon retroactively wipes out his conviction. Professor Dumont accurately summarizes the essence of what I have said: [TRANSLATION] It seems clear that the Criminal Records Act grants a pardon which is designed only to put an end to the negative effects of a conviction.

An administrative pardon, which adopts the features of a partial and conditional pardon, is not equivalent to a retroactive acquittal, as a free pardon may be, by virtue of the Royal prerogative or the Criminal Code ; accordingly, an administrative pardon does not logically result in retroactive annulment or neutralization of the conviction. [Emphasis in original.] The Supreme Court in Québec v. Montreal : [33] [20] As Gonthier J. noted in Therrien , the use of the conditional in s. 5 ( a )(ii) is significant. A pardon does not have an absolute effect and does not erase the past.

Neither a discharge nor a pardon allows a person to deny that he or she was found guilty of an offence ( Therrien , at paras. 116 and 122). The facts surrounding the offence did occur, but the pardon helps obliterate the stigma attached to the finding of

guilt. Consequently, when the time period provided for in the CRA elapses or a pardon is granted, the opprobrium that results fromprejudice and is attached solely to the finding of guilt must be resisted, and the finding of guilt should no longer reflect adversely on thepardoned person’s character. It must be presumed that the person has completely recovered his or her moral integrity. The Court of Appeal in Ascenseurs Thyssen Montenay v. Aspiro:[34] [translation] [45] The answer to the argument submitted by the respondent that criminal judgments are indivisible is found in Doyon v.

R. (QC CA), [2005] R.J.Q. 423 (C.A.). For the majority, Doyon, J.A. wrote in paragraph 44: [translation] “Even if he isdeemed to not have been convicted, the offender nevertheless pleaded guilty or was convicted, a fact which remains despite beingpardoned”. In paragraph 49, he went on to explain that [translation] "an absence of conviction does not make the plea oracknowledgement of guilt disappear retroactively any more than the pardon retroactively wipes out the conviction (Re Therrien, 2001SCC 35 , [2001] 2 S.C.R. 3 at para. 122. ... [51] Moreover, given that pursuant to

section 730 Cr. C., the judge pardons the accused instead of convicting him, the provision thathe is deemed not to have been convicted adds little. If that had been the intended purpose, it would have been easy to provide that he wasalso deemed not to have pleaded guilty or not to have been found guilty. That was not Parliament's choice. [52] True, the wording of

section 730 Cr. C. may be unsatisfactory. The fact remains, however, that it appears to me to clearly expressParliament's intent. [31] Consequently, an absolute discharge or a pardon will not affect the guilty plea.

The Committee correctly acknowledges this.[35] [32] The Committee's other observations as to the ethical consequences in addition to the disciplinary and criminal consequences[36]reflect the teachings of the Supreme Court in Therrien,[37] Maksteel,[38] and Levis.[39] On this subject, paragraphs 45 and 70 of Lévisare eloquent: ... 45 A dismissal which is the result of a disciplinary sanction will usually not attract the protection of s.18.2 because it cannot be said thatthe dismissal was effected for the mere reason of the criminal offence: Maksteel, at para. 31.

This will often be the case with municipalpolice officers who, unlike other municipal employees, face disciplinary sanctions for violations of the law. For example, s. 13.11 of theappellant municipality’s discipline by-law prohibits police officers from violating any laws in a way that would compromise theeffectiveness, credibility and quality of the public security service.

In short, a municipal police officer would rarely, if ever, be able tobenefit from the protection afforded by the penultimate paragraph of s. 116 to other municipal employees in the context of criminaloffences. ... 70 In deciding whether there are specific circumstances, the arbitrator must not lose sight of the special role of police officers and theeffect of a criminal conviction on their capacity to carry out their functions.

A criminal conviction, whether it occurs on-duty or off-duty,brings into question the moral authority and integrity required by a police officer to discharge his or her responsibility to uphold the lawand to protect the public. It undermines the confidence and trust of the public in the ability of a police officer to carry out his or her dutiesfaithfully: Deux-Montagnes; Ville de Lévis. This requirement is reflected in the police Code of ethics, discipline regulations such as theappellant’s Règlement no 756 and, importantly, in the Police Act itself in ss. 115(3) and 119 P.A. ... (

c) The severity of the penalty [32] In his factum, the appellant asks the Court to reconsider the penalty imposed by the Committee based on the same submissionsmade before that body:[40] Commissioner's position [33] The following excerpts from the Commissioner's factum, reproduced hereinafter, explain why the Court refuses to intervene:

[ translation ] First, the above-described rules governing judicial review apply. With respect to decisions concerning a penalty in particular, the Court of Appeal in Pigeon v. Daigneault recalled that a penalty does not become unreasonable merely because of its leniency or severity: [ translation ] [36] In closing, although the Act sets out a right of appeal from decisions of the Disciplinary Committee, the expertise of the Committee, the purpose of the Act , and the nature of the question in dispute all suggest a more deferential standard of review than correctness.

The applicable standard of review is therefore that of reasonableness simpliciter and the Court of Quebec, sitting in appeal from the penalty imposed by the Disciplinary Committee, must not intervene unless the appellant can demonstrate that this decision is unreasonable. The penalty imposed is not unreasonable merely because of its leniency or severity; it becomes so when it is so severe or so lenient that it is unfair or inadequate in view of the seriousness of the offence and the overall circumstances of the case, be they mitigating or aggravating. In Schrier v.

Professions Tribunal , the Court of Appeal cited the remarks of Dussault, J.A. taken from Brousseau , and reaffirmed that when the appeal concerns the penalty, the administrative tribunal's discretion is even greater than it is on the merits. Thus, the Court of Quebec cannot simply impose the penalty that it feels to be most appropriate by attempting to discover if there might have been a better answer. Instead, it must seek to discover whether the Committee's decision is one of the possible and acceptable outcomes. In fact, the Superior Court has judicially intervened on several occasions in such cases.

In the present case, the police officer is cited in the context of

section 230 P.A . The final judgment convicting the police officer of a criminal offence constituting a breach of ethics is proof of guilt. In paragraph 90 of its decision, the Committee states that [ translation ] "because the ethical system is intended to protect the public, it goes without saying that citizens must continue to have confidence in the office of police officer". In so stating, the Committee identifies the context in which it is called upon to rule. As indicated above (in Cataclyst ), there is cause to take this context into consideration.

In its role as guardian of the duties and standards of conduct imposed on police officers by the Code , the Committee's mission is to ensure that the penalties it imposes protect the public. In paragraphs 92 et seq . of its decision, the Committee, citing City of Lévis , recalls the importance of the relationship of trust between police officers and the public.

When a police officer is convicted of a criminal offence, the relationship of trust with the public (not only with his or her employer) is broken: A criminal conviction, whether it occurs on-duty or off-duty, brings into question the moral authority and integrity required by a police officer to discharge his or her responsibility to uphold the law and to protect the public. It undermines the confidence and trust of the public in the ability of a police officer to carry out his or her duties faithfully : Deux-Montagnes ; Ville de Lévis .

This requirement is reflected in the police Code of ethics, discipline regulations such as the appellant’s Règlement no 756 and, importantly, in the Police Act itself in ss. 115(3) and 119 P.A . (Emphasis added.) Case law had previously recognized that police officers, because of their status and powers, are bound to engage in exemplary conduct. Consequently, the sanction of dismissal should be seen as the general rule in cases of criminal conduct: “the presumption that dismissal is the appropriate sanction unless the police officer shows otherwise” . ...

This specific context arising from the principles underlying the Police Act , which include the importance of preserving the relationship of trust with the public (as interpreted by the decisions and judgments rendered by the higher courts we just noted), differs from a context in which a criminal court sentences a police officer convicted of the same criminal offence. Each of these regimes is independent and operates according to its own rules. The appellant cannot be comforted by the fact that the sentence imposed on him by a criminal court was more lenient. ...

In the present case, the charges are for theft, which call into question his good morals, credibility, and integrity. Overall, it is not unreasonable to find that the level of trust required in a case involving the ethical conduct of police officers is inconsistent with the alleged criminal actions of a police officer while in the performance of his duties and in relation to the public. ...

As the Committee states in paragraphs 110 and 111, it could not take into account the fact that the appellant had been hired by another police force, the Public Security of Pakua Shipi, when his former employer had ended his employment relationship by way of disciplinary dismissal. The ethical scheme provides that the appellant must be sanctioned pursuant to the rules governing ethics. These rules allow the Committee to determine the appellant's status as a police officer and not merely the employment relationship with this or that police force.

In addition, no evidence has been adduced before the Committee to establish the circumstances and conditions under which the appellant was hired, or whether his record was verified or not by the Public Security of Pakua Shipi.

The Committee could therefore reasonably consider that the penalty of dismissal was a measure that could be chosen, and even that it was an appropriate one, because the relationship of trust between the appellant and the public had been broken. But there is more. The Committee did not dismiss the appellant automatically. In paragraphs 95 to 114 of its decision, it examined the specific case of the appellant in light of the principles established in paragraphs 234 and 235 P.A .

Considered in its entirety, the Committee's decision is one of the possible and acceptable outcomes. (Citations omitted.) The Court's conclusions [ 34 ] In short, the judgments of the Court of Appeal cited by the Commissioner [41] require the Court to show the greatest deference with respect to the penalty imposed by the Committee. The only question before the Court is whether the dismissal imposed is one of the possible and acceptable outcomes. [ 35 ] In this case,

section 230 of the Police Act states that a final judgment convicting a police officer of a criminal offence constituting a breach of the Code of Ethics is proof of guilt. [ 36 ] The Committee rightly emphasizes the importance of the public's need to trust police officers and takes into account the context in which the two thefts were perpetrated, including the second one that occurred while the officer was under investigation. [ 37 ] The absolute discharge obtained pursuant to criminal law rules did not bind the Committee any more than the penalty of dismissal imposed by the employer, the Sûreté du Québec. [ 38 ] The Committee correctly found that the charges of theft called into question the morality, credibility, and integrity of the police officer.

In such circumstances, the rules of ethical conduct are intended to ensure and maintain the public's trust in the office of police officer. The Committee decided upon dismissal after performing a thorough analysis of the mitigating and aggravating factors. None of the police officer's arguments against the penalty imposed have any merit in light of the Committee's decision and the overall evidence reviewed by the Court. FOR THESE REASONS, THE COURT: DISMISSES the appeal.

UPHOLDS the decision rendered by the Police Ethics Committee rendered on April 19, 2013, in case number C-2011-3778-1 (11-1207- 1); Without costs.. __________________________________ Jean-F. Keable, J.C.Q. Date of hearing: May 13, 2014 Mtre Marc Mancini MERCIER, LEDUC 164 Notre-Dame Street East Montreal, Quebec H2Y 1C2 For the appellant Mtre Maurice Cloutier CLOUTIER MATHIEU 1200 de L'Église Road, suite 1.40 Quebec City, Quebec G1V 4Y9 For the respondent

Mtre Alexandre Ouellet CHAMBERLAND GAGNON 300 Jean-Lesage Boulevard, suite 1.03 Quebec City, Quebec, G1K 8K6 For the impleaded party [10] Supra note 1.