2013 QCCQ 12380, 2013 QCCQ 12380

Unofficial English Translation Sène c.

Simard 2013 QCCQ 12380 COURT OF QUÉBEC "Administrative and Appeal Division" CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL "Civil Division" No.: 500-80-022967-120 DATE: September 23, 2013 ______________________________________________________________________ PRESIDING: THE HONOURABLE PATRICK THÉROUX, J.C.Q. ______________________________________________________________________ GABRIEL SÈNE (badge ...) , a member of the police department of the City of Montreal, Montreal police fraternity, 480 Gilford Street, 3 rd Floor, Montreal, Quebec, H2J 1N3, Appellant v.

M e CLAUDE SIMARD , in his capacity as POLICE ETHICS COMMISSIONER, 454 Place Jacques-Cartier, 5 th Floor, Montreal, Quebec, H2Y 3B3, Respondent ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Officer Gabriel Sène appeals from two decisions rendered by the Police Ethics Committee (hereinafter the "Committee") on May 9 and July 14, 2012. [ 2 ] Both decisions stem from the same proceedings.

The decision of May 9 [1] convicted him on three of the counts from the citation filed by the Police Ethics Commissioner (hereinafter the "Commissioner"), while that of July 4, [2] as penalty, suspended Officer Sène without salary for a period of five working days for each of the counts. [ 3 ] The appellant argues that the Committee erred in its assessment of the facts in evidence before it. [ 4 ] He claims that it also erred in excluding his testimony and giving greater probative value to the testimony of the other witnesses heard. [ 5 ] According to the appellant, the Committee erred also in giving the opinion of an expert witness [TRANSLATION] "an unwarranted weight". [ 6 ] In addition, the appellant maintains that the Committee erred in ruling that his conduct constitutes a derogatory act under the provisions of

section 5 of the Code of ethics of Québec police officers (hereinafter the " Code "). [ 7 ] As for the penalty, the appellant considers it too severe and unreasonable to such a degree that it should be reduced. [ 8 ] In short, in the appellant's view, the Committee erred in every respect. His inscription in appeal and his factum mention no fewer than eight determinative errors in the assessment of the evidence and evaluation of the probative value of all the testimonies concerning the facts of the case.

It also raises a question as to the unreasonableness of the penalty. [ 9 ] Clearly, the appellant would like the Court to reconsider and reassess all the evidence gathered by the Committee and, in light of his arguments, substitute its own determination for that of the Committee by agreeing with him. [ 10 ] This approach poses a major difficulty in that the very nature of the recourse that the appellant is exercising here calls for a special procedure that is closer to a judicial review than to an actual appeal. [ 11 ] The deference that courts of justice must exercise in respect of decisions made by specialized administrative decision-makers prevents [3] a reviewing judge from substituting his own assessment for that of the initial decision-maker.

Consequently, it also prevents an unsuccessful litigant from arguing his case over again before another court to convince it of the merits of his point of view. [ 12 ] The appellant is well aware of this difficulty, hence his position on the choice of the appropriate standard of review for the

questions raised in appeal. ► Standard of review [ 13 ] It is trite law [4] that an appeal to the Court of Québec from a judgment rendered by an administrative body is subject to one of the standards of review set out by the Supreme Court of Canada in Dunsmuir [5] concerning judicial review. [ 14 ] To comply with the legislative intent of entrusting the decision to a specialized decision-maker rather than to a court of justice with a broader mandate, it is necessary to determine the applicable standard before examining each of the questions raised in appeal.

This is the rule of judicial deference. [ 15 ] Basing his argument on the precepts set forth by the Court of Appeal of Québec in Parizeau , [6] the appellant maintains that his action constitutes instead a judicial appeal of the same nature as that of an appeal to the Court of Appeal from a judgment rendered by a trial court. [ 16 ] This argument has been widely discussed in case law in recent years.

It has clearly been refuted; Parizeau has not changed the state of the law on this question. [ 17 ] In Parizeau , the Court of Appeal stated that the Tribunal des professions, sitting on appeal from the decisions of the Comité des requêtes du Barreau du Québec, exercises the jurisdiction of an appellate court rather than that of a reviewing court.

This is so because the Tribunal des professions is not a court of justice, but rather an administrative tribunal specializing in professional ethics. [ 18 ] More recently, in Gilbert , [7] in the context of an appeal before the Court of Québec from a decision of the Discipline Committee of the ACAIQ, [8] the Court of Appeal felt compelled to clarify the significance of Parizeau . [ 19 ] It stated: [9] [TRANSLATION] [13] It is well established that the standard applicable to an appeal before the Court of Québec from a judgment of the Discipline Committee of the ACAIQ ordering a penalty is the standard of reasonableness.

Our Court's decision in Parizeau v. Barreau du Québec , which holds that the Tribunal des professions, sitting in appeal from the decisions of the Comité des requêtes du Barreau du Québec acts as an appellate court rather than a reviewing one, does not call into question the applicable standard in this case. Here, the Court of Québec is acting as a non-specialized court, which means that it must conduct an exercise similar to a judicial review in the context of an appeal from the decision of a specialized administrative body, in accordance with the teachings of the Supreme Court in ACAIQ v.

Proprio Direct inc. [ 20 ] The appellant’s first argument must be dismissed. We must therefore determine the proper standard for examining the questions raised in appeal. [ 21 ] All the questions submitted by the appellant [10] are questions of mixed fact and law.

They concern a factual determination or the application of the rules of law to proven facts. [ 22 ] These questions generally call for the standard of reasonableness (reasonable or unreasonable decision) to apply. [ 23 ] This is well established, particularly in police ethics cases, where the case law [11] recognizes that the Committee is a specialized body with a high level of expertise in such matters. [ 24 ] In Palacios , [12] Dalphond J.A. wrote the following: [TRANSLATION] It appears from the Act that its purpose is to protect the public by ensuring that police officers act suitably and in compliance with the Code .

In addition, the legislature entrusted the Committee, composed of lawyers who have a number of years of experience and regularly deal with citations against police officers, with the role of determining whether there has been a violation of the Code . The Committee's expertise in matters of police conduct is greater than that of the ordinary courts such as the Superior Court or the statutory tribunal with broadened jurisdiction to sit in appeal, i.e., the Court of Québec, Civil Division.

It is true that the Committee’s expertise may be less than it once was, since it is now composed of a single person, but the fact remains that this person is called upon to perform the same type of exercise several times a year and is deemed to have expertise in such matters, somewhat like an arbitrator under the Labour Code , R.S.Q., c C-27. [ 25 ] The questions raised in appeal must therefore be analyzed according to the standard of reasonableness. [ 26 ] At the hearing, the appellant developed an alternative argument stating that there are various degrees of reasonableness.

According to him, the application of the standard must be weighed against the seriousness or gravity of the alleged error in the decision. To act otherwise would be tantamount, in his opinion, to giving the Committee a sort of immunity, under the pretext of deference. [ 27 ] This second argument must also fail. [ 28 ] By combining the two previous standards of reasonableness into one, the Supreme Court wanted to simplify the procedure. It made this clear in Dunsmuir . [ 29 ] As the Court of Appeal of Québec stated in Gatineau , [13] the purpose of the exercise was certainly not to make things more

complex again by setting out, within the standard of reasonableness, a spectrum of varying degrees of deference. [TRANSLATION] [32] With the greatest respect for the trial judge, I wish to reaffirm that the simplification sought by the Supreme Court by reducing to two the standards of review should not be short-circuited by introducing into the standard of reasonableness a spectrum of degrees of deference where one would find, at one end, little deference, and at the other, the greatest deference, with some deference and much deference lying between the two.

All this would only complicate the process of applying the standard of reasonableness and would lead us into long dissertations that would be as useful as those on the gender of angels. [33] As Binnie J. stated in Khosa , at para. 4 : "… judicial review should be less concerned with the formulation of different standards of review and more focussed on substance, particularly on the nature of the issue that was before the administrative tribunal under review". In other words, the emphasis of judicial review should be on the nature of the issue the decision-maker had to resolve.

If it is subject to the standard of reasonableness, as is generally the case, the review is limited to determining whether the decision-maker's response to the question at issue is intelligible and is one of the possible, acceptable outcomes which are defensible in respect of the facts and law ( Dunsmuir , at para. 47 ). [ 30 ] An analysis according to the standard of reasonableness is clearly defined in Dunsmuir .

The following excerpt, which has become a classic, sets out the objectives clearly. [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: 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 of acceptable and rational solutions.

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

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 31 ] In Newfoundland , [14] the Supreme Court condensed this statement: [16] … if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

THE CONTEXT [ 32 ] Before the Committee, the appellant faced the following citation: [TRANSLATION] [1] On March 13, 2009, the Police Ethics Commissioner (Commissioner) filed with the Police Ethics Committee (Committee) the following citation: [TRANSLATION] The Police Ethics Commissioner cites before the Police Ethics Committee Officer Gabriel Sène, badge ..., member of the Service de police de la Ville de Montréal: Who, in the city of Montreal, on or about July 22, 2008, while in the performance of his duties, failed to act in such a manner as to preserve the confidence and consideration that his duties require during a speed detection operation using a laser speedometer, thereby committing derogatory acts under

section 5 of the Code of ethics of Québec police officers (R.S.Q., c 0-8.1, r. 1): 1. By intercepting the vehicle driven by Curtis Raîche in an unsafe manner, thus endangering his safety; 2. By endangering the safety of Martin Dagenais, the driver of the Honda Civic vehicle, when intercepting the vehicle driven by Curtis Raîche; 3.

By endangering the safety of Robert Kirkpatrick and the other passengers in the vehicle driven by Martin Dagenais, when intercepting the vehicle driven by Curtis Raîche; Who, in the City of Montreal, on or about July 22, 2008, while in the performance of his duties, abused his authority during a speed detection operation using a laser speedometer, thereby committing as many derogatory acts under

section 6 of the Code of ethics of Québec police officers (R.S.Q., c 0-8.1, r. 1); 4. By intercepting the vehicle driven by Curtis Raîche in an unsafe manner, thus endangering his safety; 5. By endangering the safety of Martin Dagenais, the driver of the Honda Civic vehicle, when intercepting the vehicle driven by Curtis Raîche; 6. By endangering the safety of Robert Kirkpatrick and the other passengers in the vehicle driven by Martin Dagenais, when intercepting the vehicle driven by Curtis Raîche.

[ 33 ] Sections 5 and 6 of the Code read as follows: 5. A police officer must act in such a manner as to preserve the confidence and consideration that his duties require.

A police officer must not: (1) use obscene, blasphemous or abusive language; (2) fail or refuse to produce official identification when any person asks him to do so; (3) fail to carry prescribed identification in his direct relations with the public; (4) commit acts or use injurious language based on race, colour, sex, sexual orientation, religion, political convictions, language, age, social condition, civil status, pregnancy, ethnic or national origin, a handicap or a means to compensate for a handicap; (5) be disrespectful or impolite towards any person. 6.

A police officer must avoid any form of abuse of authority in his relations with the public.

A police officer must not: (1) use greater force than is necessary to accomplish what is required or permitted; (2) make threats, intimidate or harass; (3) knowingly bring a charge against any person without grounds; (4) abuse his authority in order to obtain a statement; (5) detain any person who is not under arrest, in order to interrogate him. [ 34 ] The Committee ruled that the appellant failed in his ethical duty to act in such a manner as to preserve the confidence and consideration that his duties require under the terms of

section 5 of the Code . It convicted him on counts 1, 2 and 3 and concluded, with regard to counts 4, 5 and 6, that he had not abused his authority within the meaning of

section 6. [ 35 ] At the time of the events, the appellant had been a police officer for five years. He had been working as a speedometer ("radar gun") operator for three years. [ 36 ] The series of events that gave rise to the citation is not disputed.

Rather, the appellant questions the Committee's assessment of the evidence, as well as the inferences it drew therefrom. [ 37 ] Given the particular nature of the questions in appeal, it is suitable, for a better understanding, to reproduce in its entirety the narration of the facts as set forth in the decision. [TRANSLATION] [3] For the purposes of the case, the events occurred on the westbound service road of highway 40, which has three lanes.

One lane on the right, hatched close to the sidewalk and running under a viaduct, and to its left two lanes, the one to the far left bordered by a guardrail and a grass median. FACTS [4] In the morning of July 22, 2008, Officer Gabriel Sène was working alone dressed in a fluorescent yellow vest and a red cap. After checking that his laser speedometer was working properly, he chose a site from which to operate and parked his police car under the viaduct on the hatched lane of highway 40 close to the Halpern Street intersection, in Montreal.

The speed limit at this location is 50 km/h. [5] At around noon, Officer Sène was watching the road and holding a laser speedometer in his hand. He was standing next to his police car, facing traffic. [6] Patrick David, at the wheel of his Dodge Dakota vehicle, was travelling in the middle lane heading west. [7] Officer Sène pointed the laser speedometer and registered the speed of David's vehicle at 95 km/h at a distance of 140.2 metres. The police officer, still holding the laser speedometer in his hand, waved his hands above his head to signal the driver to stop.

David slowed down and parked his vehicle in front of the police car. [8] Officer Sène informed David of the speed at which he had been travelling and asked for his papers. The police officer turned around to face traffic while the papers were being handed to him. He then saw a white GMC Silverado pick-up truck, driven by Curtis Raîche, speeding in the left lane. [9] Officer Sène raised his laser speedometer and after making a visual estimate of 75 km/h, registered a speed of 73 km/h at the head of the line in the left lane at a distance of 153.7 metres.

[10] Raîche said he was travelling at about 60 km/h in the middle lane of the westbound service road when he noticed a police car parked under a viaduct approximately 800 feet from him. [11] Raîche saw the police officer equipped with a laser speedometer. Thinking that the officer was targeting another driver, he let a vehicle pass him before moving into the left lane. [12] Martin Dagenais was at the wheel of his Honda Civic, in the company of his co-workers.

Marie-Hélène Laporte was in the front passenger seat, Robert Kirkpatrick was seated in the back on the passenger side, and Denault was seated in the back on the driver side. [13] Dagenais was driving in the left lane, behind the white pick-up at a speed of approximately 60 km/h and was 10 metres from the truck. [14] Officer Sène moved into the middle lane towards the white pick-up truck so that the driver Raîche would stop, while maintaining eye contact with him and motioning exaggeratedly, his hands in the air, one holding the laser speedometer and the other, David's papers. [15] Seeing the driver slow down, the police officer moved so that he was straddling the left and middle lanes.

The driver slowed down considerably, but did not come to a stop. [16] Officer Sène moved into the left lane, facing the vehicle, which was still moving, while maintaining eye contact with the driver and waving his arms. According to Officer Sène, the driver did not seem to be focussed on what was happening in front of him. Officer Sène, who claims to be in shape, was able to jump over the guardrail onto the median to avoid getting hit. [17] While on the other side of the guardrail, Officer Sène signalled the driver of the white pick-up to pull over to the right.

He then realized that the pick-up was followed very closely by a Honda Civic and that a collision was inevitable. According to Officer Sène, the driver of the Honda was not paying much attention, did not apply his breaks quickly enough, and could not avoid hitting the back of the pick-up. [18] David described the police officer's movements as follows: [TRANSLATION] He took a few steps, raised his arm again to signal the vehicle to stop.

And the vehicle obviously did not slow down so he had to take a few more steps so as to place himself in front of the vehicle, which had to brake abruptly, the wheels locked and it was hit by another vehicle. [19] Raîche saw the police officer, who was about 100 feet from him, run into the traffic lanes, stand in the left lane and signal him to stop his vehicle, while looking at him as if he were looking for something. [20] As he was approaching the Halpern Street intersection, Dagenais saw a person cross from the right lane and stand in front of the vehicle that was in front of him, signalling him to stop. [21] Raîche braked abruptly and stopped.

Dagenais also braked, but the right front fender of the Honda Civic hit the pick-up’s left side back bumper and then hit the cement curb running along the grass median to his left, causing a flat tire. [22] Laporte saw the police officer run across the sidewalk, cross the right lane, cross the middle lane, and stand in the left lane where the white pick-up was travelling. The driver of the pick-up slammed on the brakes. Dagenais also braked, but his vehicle hit the white pick-up truck and skidded to the left.

He ended up against the cement curb running along the left lane. [23] Kirkpatrick saw what he described as "a yellow flash", as their vehicle approached a viaduct. The white pick-up in front of them braked abruptly. All he saw was a yellow vest. At first, he thought it was a worker and not a police officer. Dagenais swerved to left but couldn't avoid the impact. [24] Officer Sène walked back onto the roadway to secure the area. He blocked traffic by signalling all drivers to stop. [25] Raîche reported that the police officer walked up to his car door. He asked the officer why he did that.

The officer didn't reply, walked over to the other vehicle, and then returned to see him and told him to park his car on the edge of the right lane close to the police car. [26] The police officer testified that after noting that the driver of the white pick-up wasn't hurt, he walked up to the driver's side door of the Honda Civic and asked Dagenais and the passengers if they were okay. They said they were fine. A passenger in the back, Kirkpatrick, was rubbing his elbow. [27] Laporte testified that she and the other occupants of the vehicle were shaken.

She raised her head and saw the police officer to their left three feet from the vehicle. Panicked, he asked them if they were hurt. They said they weren't. The police officer was very nervous, speaking very fast and not at all in control. According to her, he was almost hit. [28] The police officer noticed that Kirkpatrick and Denault were not wearing their seatbelts and informed them of this. According to Kirkpatrick, the police officer told him he would receive a ticket for not wearing a seatbelt. He rubbed his elbow, which hurt. The police officer asked him if he was injured.

He told him he was okay but that his elbow may have hit the window at the time of impact. The police officer told him he would call Urgences Santé. Kirkpatrick told him that this was not necessary. [29] Dagenais testified that the police officer was nervous and talking fast. He told him to park his vehicle next to the sidewalk along the hatched lane near the other vehicles. [30] Dagenais and his passengers got out of his vehicle. They were shaken by the event. On the sidewalk, they spoke with each other

as well as with Raîche and David, while the police officer got back into his police car. [31] Officer Sène asked the people to move onto the sidewalk, which some did and some didn't. He had to repeat his request. He was called all sorts of names, especially by Laporte, who called him incompetent, ignorant, and dangerous and told him that he had caused the accident. He asked her to calm down, not to argue, and to let him do his job. [32] Following the police officer’s call, firefighters, paramedics, and a tow-truck arrived on the scene. They verified the condition of the persons and the vehicles.

The tow-truck would later tow the Honda Civic away. Once their verifications were complete, the firefighters and paramedics left the scene. [33] Officer Sène wrote up a speeding ticket, which he handed to David. The police officer noticed that one of the headlights on David's vehicle was defective and, following a verification with the Centre de renseignements des policiers du Québec, discovered that the registration fees had not been paid. However, using his discretionary power, he issued a ticket only for speeding and asked David to rectify the situation with regard to the unpaid fees and the headlight.

David left the scene. [34] Dagenais, his passengers and Raîche demanded explanations from the police officer. He told them that he would give them his contact information, but that he would not discuss his intervention. He simply told them to exercise their rights, if they wanted to contest. [35] Officer Sène testified that the people were unhappy. They hurled abuse at him. They wanted to know why he had acted the way he had, why he had issued tickets, and so on. He had to remain calm. He tried to answer their questions, but to no avail.

He informed them that he would give them his contact information and that they could contact him later. [36] Raîche, in the presence of the others, was informed by Officer Sène that he had been driving at 78 km/h, which he disputed. The police officer gave him a speeding ticket on which was written 73 km/h, prompting Raîche to dispute again. [37] Officer Sène then asked which passengers were seated in the back of Dagenais's vehicle. Kirkpatrick and Denault said they were. Officer Sène informed them that they would each receive a ticket by mail for not wearing their seatbelts.

More protestations followed before the police officer returned to his vehicle. [38] Officer Sène requested and obtained an identification document from Dagenais and each of the passengers and then returned to his vehicle. After a few minutes, the police officer returned and gave them back their documents.

The police officer filled out and gave to each of these persons a business card with his contact information and the incident number. [39] Officer Sène then wrote up an incident report, an additional report, and a vehicle accident report. [40] Raîche filed a complaint with the Commissioner's office because, in his opinion, Officer Sène was the cause of the accident, which had to be borne by the driver behind him. (Citations omitted.) ► Questions raised on appeal [ 38 ] The appellant formulated the questions raised on appeal as follows: ​ QUESTION A With respect, the Committee erred in attributing to the appellant an accident that was due solely to the carelessness of Martin Dagenais, according to the saying nemo turpitudinem suam allegans auditur ; QUESTION B With respect, the Committee erred in its conclusion that the appellant’s conduct, when he intercepted the vehicle driven by Raîche in an unsafe manner, endangered his safety; since the facts provide no basis for such a conclusion; QUESTION C With respect, the Committee erred in its

interpretation of certain facts related to the conduct of Curtis Raîche, which facts were of critical importance in determining how the incident that gave rise to the citations at issue unfolded; QUESTION D With respect, the Committee erroneously and without expressing any justification dismissed the appellant Sène's testimony, accepting instead the testimony of Dagenais and Laporte as to facts that are essential for a fair and reasonable assessment of the case; QUESTION E With respect, the Committee committed the same error in respect of Patrick David's deposition concerning Curtis Raîche's conduct; QUESTION F With respect, the Committee erred when it gave the testimony of the expert Robert Jauvin, whose experience with regard to the facts of the case was very limited, an unwarranted weight; QUESTION G With respect, the Committee erroneously reprimanded the appellant Sène's conduct in a situation where the conduct in question contravened no rule or established procedure, thereby entitling the appellant to exercise measured discretion; QUESTION H With respect, the Committee erred when it failed to apply to counts 1, 2 and 3 the same principles it applied to counts 4, 5 and 6 of the citation; QUESTION I With respect, the Committee erred in its determination of the appropriate penalty in this case, in respect of both the facts of the case and the applicable principles.

Responsibility for the collision [ 39 ] In his argument, the appellant addressed questions A and C together.

[ 40 ] Essentially, he faults the Committee for concluding in paragraph [21] of its decision that the driver of the Silverado pick-up, Raîche, braked abruptly to stop his vehicle and avoid hitting him. [ 41 ] This error ostensibly led to a second one which consisted in concluding that the driver of the Honda Civic, Dagenais, crashed into the back of Raîche's pick-up because Raîche braked abruptly. [ 42 ] The appellant argues that the collision was due solely to the fact that Dagenais was following too closely behind Raîche's vehicle and not to the fact that Raîche braked abruptly. [ 43 ] According to the appellant, the collision was attributable solely to the [TRANSLATION] "carelessness" of Dagenais, who failed to keep a safe distance between his vehicle and Raîche's. [ 44 ] He therefore attributes full responsibility for the accident to Dagenais and says that if the collision hadn't occurred, he would never have had to deal with the citation filed by the Commissioner. [ 45 ] With respect, this reasoning is wrong from more than one point of view. [ 46 ] First, the assumption that Raîche did not brake abruptly is incorrect.

It is inaccurate to claim that the evidence shows that he did not brake abruptly because he did not say so himself in his testimony, stating only that he stopped, [TRANSLATION] "and I was hit from behind". [15] [ 47 ] The other witnesses gave a much more detailed version. [ 48 ] Patrick David, the driver who had just been stopped by the appellant, said: [TRANSLATION] A. He took a few steps, raised his arm again to signal the vehicle to stop.

The vehicle obviously did not slow down so he had to take a few more steps so as to place himself directly in front of the vehicle, which had to brake abruptly, the wheels locked and it was hit by another vehicle. [16] … A. … but the officer, he really stood in the middle of the lane to stop him. Then, the vehicle had to initiate an emergency brake, was hit, but he, in an emergency brake situation, the police officer moved into the other lane so he would not be hit by the vehicle. [17] [ 49 ] Martin Dagenais, the driver of the Honda Civic that was following Raîche's vehicle, said: [TRANSLATION] A.

I saw a human being crossing, but I didn't know then that it was a police officer. I thought that…at first, it was perhaps a roads department employee. All I saw was a fluorescent vest on a human who was crossing the right lane only to stop in the left lane and motion the pick-up in front of me to stop. At that point, the pick-up, well he obviously saw the person at the last second and braked abruptly. [18] … A. I think I could have stopped in time in other circumstances. Q. Really? A. Yes. Q. So why didn't you stop in those circumstances? A.

Because it was a circumstance where he had to brake abruptly, and in extraordinary circumstances where he had to brake, it wasn't a regular braking, you know. [19] [ 50 ] Hélène Laporte, a passenger in the front seat of the vehicle driven by Dagenais, said: [TRANSLATION] Well, a good one-and-a-half car lengths, if not two, two car lengths. So the pick-up slammed on the brakes, and we did the same, obviously.

The vehicle skidded and we collided with the pick-up. [20] [ 51 ] Robert Kirkpatrick, a passenger in the back seat of the vehicle driven by Dagenais, said: We were following a white pick-up and as I looked forward, I noticed the white pick-up was coming to an abrupt stop and was skidding a little bit to the side. [21] A. And then, well as I said, we came to a very abrupt stop … then I saw the flash of yellow and then it turned out it was Mr. Sène, coming across to the other side onto the grass median and we hit the back of the pick-up and the curb just about at the same time. [22]

[ 52 ] The evidence adduced before the Committee thus establishes, beyond a shadow of a doubt, that Raîche braked abruptly when the appellant went in front of his vehicle while motioning. [ 53 ] The error of fact argued by the appellant simply does not exist. [ 54 ] Next, it should be pointed out here that the Committee's role is not to determine the share of civil responsibility of each of the parties involved in a collision. [ 55 ] The Committee exercises an exclusive jurisdiction which consists in deciding whether the conduct of a police officer constitutes a transgression of the Code of ethics and, if so, imposing the appropriate penalty. [23] [ 56 ] The question put to the Committe in the citation instituting disciplinary proceedings [24] was to determine whether the conduct of the appellant, in the performance of his duties as a police officer, constituted a breach of professional ethics rather than a civil wrong. [ 57 ] In the context of the present case, a determination attributing exclusive civil liability to the driver Dagenais, as sought by the appellant, is moot. [ 58 ] Bear in mind that the appellant was found guilty under

section 5 of the Code of having conducted a police intervention in a careless manner that failed to preserve the confidence and consideration that his duties require. He certainly cannot try to avoid his ethical responsibility by arguing that a third party was at fault in a collision between two vehicles. [ 59 ] The errors alleged by the appellant in questions A and C of his notice of appeal do not exist. The premises he sets out are erroneous and inaccurate. There is no reason to consider them in appeal.

The danger caused by the appellant [ 60 ] In question B , the appellant introduces a variation on the same argument. He claims that the Committee erred when it concluded that he put himself in danger by intercepting Raîche's vehicle in an unsafe manner.

In his view, the facts do not provide a basis for such a conclusion since the collision did not cause him any injury and the collision was caused not by his actions, but rather by the [TRANSLATION] "carelessness" of Dagenais. [ 61 ] The Committee said: [TRANSLATION] [66] According to the evidence heard, it is clear that Raîche did not really see the police officer until the last minute and at a short distance from his vehicle.

He had to make an abrupt stop, thus surprising Dagenais, who could not avoid him. [67] By placing himself in front of the pick-up, the police officer needlessly put himself at risk and could not anticipate Raîche's reaction.

He thus put himself in a vulnerable and dangerous position, even exposing himself to being hit by the vehicle if he hadn't been able to get out of the third lane in time by jumping over the guardrail. [68] This interception of Raîche's vehicle by Officer Sène was done in an unsafe manner and by acting as he did, the police officer needlessly endangered his own safety and that of others, including Raîche, Dagenais and his passengers. [ 62 ] The Committee’s determination is clearly based on evidence.

It appears that the appellant rushed in front of Raîche's vehicle to force it to stop and that Raîche had to brake abruptly to avoid hitting him. It also appears that, to avoid getting hit, the appellant had to jump over the guardrail onto the median next to the traffic lane. Finally, it appears that Raîche's abrupt braking led to the collision between his vehicle and that of Dagenais, who was following him. [ 63 ] As indicated above, it is the appellant's ethical conduct that the Committee must assess in connection with the citation filed before it. Did the officer fail to perform the duties required by

section 5 when he intercepted Raîche's vehicle in an imprudent manner, thereby endangering his own safety and that of Raîche, Dagenais, Kirkpatrick and Laporte? [ 64 ] Fortunately, the appellant was not injured.

He was able to get out of the way just in time by jumping over a guardrail that is about four feet high onto the median. [ 65 ] The fact remains that the absence of injury, like the attribution of responsibility for the collision to one of the drivers involved, is an element that is irrelevant for the purpose of the decision that the Committee had to make in an exclusively ethical context. [ 66 ] The appellant introduces considerations here that divert attention from the Committee's essential function, which is to decide if his conduct constitutes

an act in derogation of the duties required of him by the Code in the performance of his duties as a police officer. [ 67 ] The appellant failed to demonstrate that the error he alleges in the formulation of his question B really exists. The Committee did not have to analyze the appellant's conduct on the basis of the civil responsibility of the drivers involved in the collision that occurred when he intervened. [ 68 ] Nor did it have to do so on the basis of the officer’s civil responsibility.

It is his ethical duty that is in question. [ 69 ] Furthermore, the Court cannot interfere in the assessment of the evidence and substitute its own analysis for that of the Committee in order to find, as the appellant urges, that the facts of the case do not lead to the conclusion reached by the Committee. [ 70 ] Rather, the Court must defer to the Committee's decision and abstain from intervening in this regard. [ 71 ] There is nothing more to add here with respect to reasonableness, the Committee's determination is clear, and its reasons are

intelligible and rational. Assessment of the appellant's testimony [ 72 ] In his question D , the appellant faults the Committee for dismissing his version of the facts without justification and accepting instead that of the other witnesses. [ 73 ] However, the Committee clearly set out its reasons. [ 74 ] It said: [TRANSLATION] [58] According to the police officer's testimony, Raîche did not respond to his directions, despite his repeated motioning. Raîche slowed down, but did not come to a stop. He was not focussed on his driving.

Because of the driver's inattention, Officer Sène had to jump over the guardrail to avoid getting hit. [59] As for Raîche, he says that he was driving at approximately 60 km/h. He only noticed the police officer when he was about 100 feet from him. He then saw him run into the traffic lanes, stand in the left lane, and signal him to stop his vehicle. [60] Dagenais says that he was driving at approximately 60 km/h and that he was following the white pick-up.

He saw the police officer cross the right lane and stand in front of Raîche's vehicle, signalling him to stop. [61] According to David, the police officer raised his arms to signal Raîche to stop. But Raîche did not slow down. The police officer moved a few steps to stand in front of Raîche's vehicle, and Raîche had to brake abruptly.

The wheels locked and his vehicle was hit by Dagenais's vehicle. [62] As for the passengers Laporte and Kirkpatrick, they do not speak of slowing down, but say rather that a person dressed in fluorescent yellow took them by surprise by suddenly appearing in front of the vehicle ahead of them, which caused both drivers to brake abruptly. [63] Officer Sène said that he was in shape and that there was no danger for him when he jumped over the guardrail. [64] The Committee questions how Officer Sène, in such circumstances, could have noticed that Raîche and Dagenais were not driving with focus and attention, especially Dagenais, whom he only saw from the side and almost at the same time as the collision. [65] Given the speed at which the events occurred, the Committee does not believe Officer Sène's statements and his description of the events. [66] According to the evidence heard, it is clear that Raîche did not really see the police officer until the last minute and at a short distance from his vehicle.

He had to brake abruptly, thus surprising Dagenais, who could not avoid him. [ 75 ] It is clear, particularly in paragraph 64, that the Committee did not accept the part of the appellant's testimony where he said that Raîche and Dagenais were driving inattentively and with insufficient concentration. This is a subjective assessment which, in the view of the Committee, could not be accepted given the speed of the events, the hurried movements of the appellant, and his position in relation to Dagenais's vehicle just before and at the time of the collision. [ 76 ] Is this determination unreasonable?

Does it contain a palpable and overriding error? The answer is no. [ 77 ] It is therefore inaccurate to claim that the Committee dismissed the appellant's testimony [TRANSLATION] "erroneously and without expressing any justification … as to facts that are essential for a fair and reasonable assessment of the case". [ 78 ] The Committee clearly stated its reasons. They are rational, intelligible, and transparent. [ 79 ] Assessing evidence is at the very heart of the role of a first-level decision-maker. An appeal, and even more so a judicial review, are not avenues to a retrial.

The appellate or reviewing court must show great restraint in respect of the findings of fact of the first-level decision-maker and the latter's assessment of the probative value of the evidence presented at the hearing. [ 80 ] In Benchetrit , [25] Morissette J. wrote the following concerning the application of the palpable and overriding error standard in appeal. [TRANSLATION] [24] … . It follows from this that no purpose is served on appeal by affirming, without being more specific, that a finding of fact [TRANSLATION] “is contrary to the whole of the evidence”.

And claiming that something is “palpable” does not make it so. In my view, this is how we must understand what Fish J. was saying when he wrote the following in H.L. v. Canada (Attorney General) : … The “palpable and overriding error” standard, apart from its resonance, . . . helps to emphasize that one must be able to “put one’s finger on” the crucial flaw, fallacy or error. In the words of Vancise J.A., “[t]he appellate court must be certain that the trial judge erred and must be able to identify with certainty the critical error” ( Tanel , at p. 223, dissenting, though not on this issue).

To “put one’s finger on” means something other than inviting the Court to take a broad look at all the evidence: it means to direct its attention toward a determined point where an unequivocal evidentiary element is quite simply an obstacle to the impugned finding of fact. If that finding of fact, which has, in that way, been shown to be clearly wrong, sufficiently compromises the disposition of the judgment, then the error will be regarded as determinative and will justify reversing the judgment.

(Citations omitted.) Assessment of Patrick David's testimony [ 81 ] The same considerations apply to the ground of appeal raised by the appellant in his question E . He says that the Committee committed the same assessment error in accepting David's testimony over his. [ 82 ] After relating David's version in paragraph [18] of its decision, [26] the Committee wrote the following: [TRANSLATION] [61] According to David, the police officer raised his arms to signal Raîche to stop. But he did not slow down. The police officer moved a few steps to stand in front of Raîche's vehicle, and Raîche had to brake abruptly.

The wheels locked and his vehicle was hit by Dagenais's vehicle. [ 83 ] Objectively, there is no error there. The appellant himself cannot put his finger on one. Again, it is not for the Court to reconsider all the evidence on the off chance that, in the end, its own assessment might differ from that of the Committee that heard the case and that was certainly in a better position to assess its probative value.

Assessment of the testimony of the expert Jauvin [ 84 ] The same considerations also apply to the ground of appeal raised by the appellant in his question F , where he says that the Committee erred in giving the testimony of the expert Jauvin [TRANSLATION] "an unwarranted weight". [ 85 ] At the hearing, Sergeant Robert Jauvin was allowed to testify as an expert in the use of highway safety equipment.

He was examined and cross-examined at length by counsel for both parties. [27] [ 86 ] The Committee accepted the following evidence from his testimony: [TRANSLATION] Expert testimony [41] Sergeant Robert Jauvin is a police officer with the Sûreté du Québec. He is a head instructor and consultant in the use by patrol officers of highway safety equipment such as alcohol detection devices and speed detection devices, i.e., Doppler radar guns and laser speedometers.

He teaches instructors with the Sûreté du Québec and with municipal police departments. [42] Sergeant Jauvin was declared an expert witness for the Commissioner on the use and maintenance of highway safety equipment, including the laser speedometer. He was present during all the testimonies before the Committee, including Officer Sène's testimony. [43] Mr. Jauvin is of the opinion that a police officer operating alone must pay attention to the offender he has just intercepted, and properly perform and complete the interception procedure with the offender.

He must realize that he cannot intercept all speeding vehicles, especially since he is working alone. The ultimate goal of the operation is to promote safety and not to give out tickets at all costs with no regard for safety. [44] Mr. Jauvin is of the opinion that a police officer who has just intercepted a vehicle for speeding must never place himself in the traffic lane of the speeding vehicle, making himself vulnerable, in order to stop the driver. It is a question of safety, given the risk of collision. [45] Police officers are taught not to place themselves in the traffic lane to intercept a driver.

They must exercise judgment according to the reality of the moment. Placing oneself in a lane or between two lanes is to be avoided. [46] Mr. Jauvin testified: [TRANSLATION] Well, obviously, placing oneself in that position, there are risks, but the imminent risk is to the police officer, since he has no protection. As for citizens, yes, there is a risk of collision. The seriousness will undoubtedly be less, but then again, one cannot presume anything.

With collisions, we can’t always guess in advance what will really happen, but yes, there is a risk for the citizen too. [47] The fact that Officer Sène placed himself in the left lane maximized the risk. The police officer needlessly exposed himself for a ticket, which was not worth the risk he was taking. [48] Mr. Jauvin describes Officer Sène's manoeuvre as being [TRANSLATION] "a high-risk operation". There was an immediate danger for the police officer. He had no control over what was happening behind Raîche's vehicle, i.e., the vehicles that were following it.

The police officer had just left his minimal safety zone and exposed himself to a dangerous situation beyond his control.

The police officer could no longer control the reaction of the drivers who would see him or, worse yet, that of those who would not. [49] In addition, according to the expert, Officer Sène should have intercepted the driver of the pick-up with both hands free, pointing at him with his finger and signalling him with his hand to pull over in front of the police car, while using the police car as a safety tool. [ 87 ] As for the assessment of the expert Jauvin's testimony, the Committee said: [TRANSLATION]

[69] The Committee agrees with the opinion of the expert Jauvin, who described the police officer's manoeuvre as being a [TRANSLATION] "high-risk operation" entailing immediate danger for Officer Sène. An operation that was just as risky for the persons in the vehicle that he was trying to intercept, as he had no control over the reaction of the drivers who saw him too late, and less so for those who would not see him, since he himself did not see the Honda hidden by the pick-up. [70] It was therefore a very high-risk situation that was to be avoided, as Sergeant Jauvin mentioned.

Officer Sène should have done his job properly by finishing what he had started with David before thinking of giving out other tickets. If he still wanted to do so, he should have followed the procedure described by Sergeant Jauvin in paragraph 49 of this decision. [ 88 ] In support of his appeal, the appellant now argues that the Committee should not have assigned a probative value to the expert Jauvin's testimony. He maintains, essentially, that Mr.

Jauvin is not sufficiently qualified to give an opinion on how the appellant conducted his intervention. [ 89 ] In paragraph 18 of his factum, the appellant makes the following submission: [TRANSLATION] "The expert Jauvin, unlike an expert who works in the field, is an expert professor. His most recent experience in the field appears to date back to the late 1990s.

What's more, since he works for the Sûreté du Québec, he has little experience with interceptions working solo; at the S.Q., they work with a partner, one officer measuring the speed of an offending driver, the other taking off in pursuit to intercept him.

His specific experience in this case is thus necessarily limited, as are his opinions, which are shaped by the prism of the culture of his police force. [ 90 ] This ground of appeal, which was raised late, is without merit. [ 91 ] The considerations stated above also apply to the administration and assessment of expert testimony by a first-level decision- maker.

It is first and foremost up to the Committee to allow a person to testify as an expert, to gauge his level of expertise, and to assess, as for any other witness, the probative value of his deposition on a balance of probabilities. [ 92 ] The appellant did not demonstrate that the Committee's decision is unreasonable with respect to the qualifications of the expert witness Jauvin and the relative weight of his testimony in the body of evidence. [ 93 ] In fact, it is clearly not unreasonable, all the more so since the opinions given by Mr.

Jauvin ultimately stem from common sense. [ 94 ] There are no grounds for intervention on this question. Absence of a specific rule of conduct [ 95 ] The ground of appeal raised by the appellant in his question G concerns the very foundation of disciplinary law. He argues that his conduct contravened [TRANSLATION] "no rule or established procedure" and that he was therefore entitled to use his discretion to conduct his police intervention according to his own physical abilities. [28] [ 96 ] He formulated his argument as follows, in paragraphs 20 and 21 of his factum: [TRANSLATION] 20.

Expert witness Jauvin, during his cross-examination, was asked the following question concerning the appellant Sène's maneuver: [TRANSLATION] "Yes, but careless to the point where it should not be done?" 21. He answered as follows: [TRANSLATION] " As I mentioned, Ms.

Chairwoman, in the documentation, the prohibition against conducting this operation in that manner is not stated anywhere in so many words” . 26 ______________________ 26 Transcript of September 18, 2009, at 72, volume 2, tab 10. [ 97 ] In other words, the appellant maintains that he cannot be found guilty of a breach of professional ethics since he did not contravene any specific prohibition by conducting his intervention as he did. The Code does not prohibit a police officer from running in front of a vehicle to force it to stop.

A police officer would therefore not endanger his safety if he believed he had the physical ability to run fast enough and to jump high enough over the guardrail onto the median to avoid getting hit. [ 98 ] This argument is based on a serious mistake. [ 99 ] From a legal standpoint, reality is quite different. [ 100 ] Before the Committee, the appellant had to answer to a citation accusing him of contravening the provisions of sections 5 and 6 of the Code of ethics . [ 101 ] The Code of ethics of Québec police officers establishes the duties and standards of conduct of police officers in their relations with the public in the performance of their duties. [29] The Code stipulates that any failure or omission concerning a duty or a standard of conduct constitutes a derogatory act and may result in the imposition of a penalty. [30]

[ 102 ] Sections 5 and 6, [31] like all the sections [32] setting out the duties and standards of conduct of police officers, are worded similarly. [ 103 ] First, they state a general duty of conduct and then, they set out specific standards of conduct. [ 104 ] It is erroneous to claim that for a derogatory act to be committed there must be a failure in respect of a specific standard of conduct. Disciplinary law is not penal law. [ 105 ] In the present case, the citation states that the appellant breached a duty. First, under

section 5, that he failed to act in such a manner as to preserve the confidence and consideration that his duties require, and also, under

section 6, that he abused his authority . [ 106 ] The Committee concluded that his conduct constituted a derogatory act in respect of the general duty provided under

section 5 but that it did not constitute an abuse of authority under

section 6. It wrote: [TRANSLATION] [71] By intercepting the vehicle driven by Curtis Raîche in an unsafe manner, Officer Sène failed to act in such a manner as to preserve the confidence and consideration that his duties require. [72] For all of these reasons, the Committee concludes that Officer Sène contravened

section 5 of the Code , by intercepting the vehicle driven by Curtis Raîche in an unsafe manner, thus endangering his safety. [73] For the same reasons, the Committee concludes that Officer Sène contravened

section 5 of the Code , by endangering the safety of Dagenais, the driver of the Honda Civic vehicle, when intercepting the vehicle driven by Curtis Raîche. [74] For the same reasons, the Committee concludes that Officer Sène contravened

section 5 of the Code , by endangering the safety of Kirkpatrick and the other passengers in the vehicle driven by Martin Dagenais, when intercepting the vehicle driven by Curtis Raîche. [75] As for counts 4, 5 and 6 of the citation, in which the Commissioner states that Officer Sène abused his authority when intercepting Raîche's vehicle, the Committee is of the opinion that the police officer's conduct at the time of this interception does not constitute a derogatory act under

section 6 of the Code . [76] The Committee is of the view that Officer Sène's conduct, while careless and lacking judgment, does not meet the criteria established by case law to constitute an abuse of authority, such as conduct that is reprehensible, excessive, or in bad faith. [77] The Committee therefore concludes that Officer Sène did not contravene

section 6 of the Code , in respect of Raîche, Dagenais and the passengers, including Kirkpatrick. (Citations omitted.) [ 107 ] The appellant did not raise any ground of appeal that could even remotely call into question the reasonableness of this decision. On the contrary, it has, on its face, all the attributes of reasonableness. [ 108 ] There are no grounds for intervention on this question.

Distinction between sections 5 and 6 of the Code [ 109 ] In his question H , the appellant states that the Committee [TRANSLATION] "erred when it failed to apply to counts 1, 2 and 3 the same principles that it applied to counts 4, 5 and 6 of the citation". [ 110 ] It must be understood that, from the appellant's point of view, the Committee erred in sustaining the counts of the citation accusing him of contravening

section 5, while dismissing the counts concerning a contravention of

section 6. He argues that for the same reasons, it should have dismissed the counts of the citation brought under

section 5. [ 111 ] Common sense tells us that such an outcome is neither acceptable nor possible in light of the facts and the applicable law. [ 112 ] The Committee could not rationally analyze the citation issues brought under

section 5 according to the same principles as those applicable to an analysis of the issues brought under

section 6. [ 113 ] Preserving the confidence and consideration that the duties of a police officer require and not abusing one's authority in the performance of these duties are two distinct ethical duties. Consequently, a contravention of either of these duties constitutes a derogatory act of a very different nature, possibly resulting in disciplinary consequences that are different as well. [ 114 ] Conceptually, the analysis process must meet the criteria specific to the characterization of each alleged contravention. [ 115 ] This is precisely the exercise that the Committee performed.

It found that the appellant conducted himself so carelessly [33] that he endangered his own safety, as well as the safety of the other persons directly involved in his intervention. [ 116 ] Nothing, in the eyes of the Committee, justified such an attitude in the performance of his police duties at the time, i.e., enforcing the speed limit. The Committee felt that the appellant's fault was of sufficient gravity as to constitute a derogatory act. [ 117 ] There is no fault to be found with respect to reasonableness. The penalty

[118] The appellant argues that the penalty imposed by the Committee is unreasonable. In his question I, he maintains that theCommittee erred in law in the determination of the appropriate penalty. [119] Specifically, he wrote the following in paragraph 23 of his factum: [TRANSLATION] 23.

In his treatise, Mario Goulet29 recalls the significance for the offender of the imposition of a penalty in a disciplinary matter: [TRANSLATION] It is correct to say, like L'Heureux-Dubé J., that the duty imposed upon professional corporations is to protect the public, but also to dealfairly with those whose livelihood is in its hands, and nothing is to be gained by placing a priority upon one of its functions over theother. Brosseau v. Alberta Securities Commission, (SCC), [1989] 1 S.C.R. 301.

Given the facts of the case, we submit that the Committee was not guided by this excerpt. ______________________ 29 Mario Goulet, Le droit disciplinaire des corporations professionnelles, (Cowansville, Que: Yvon Blais, 1993) at 113, appellant'sbook of authorities, volume 3, tab 2. [120] The determination of a disciplinary penalty is a balancing exercise.

It must consider all the circumstances of the case and seek tobalance the considerations concerning the offender against those concerning the preservation of public order. [121] The Committee concluded that the appropriate penalty, in light of the seriousness of the disciplinary breach and all themitigating and aggravating circumstances, was a suspension without salary for five working days on each of counts 1, 2 and 3,consecutively. [122] The appellant maintains that this is an unreasonable penalty, which he says should be replaced by a rebuke. [123] It should be pointed out that in police ethics matters, the law[34] specifies the categories of penalty that the Committee mayimpose. [124]

Section 234 stipulates: 234. Where the ethics committee comes to the decision that the conduct of a police officer is a transgression of the Code of ethics, itmay, within 14 days after the date of the decision, impose on the police officer, for each count, one of the following penalties whichmay, 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.

In addition, where a penalty cannot be imposed on a police officer because he has resigned, has been dismissed or has retired, the policeofficer may be declared disqualified from exercising the functions of a peace officer for a period of not more than five years. [125] In Pigeon,[35] the Court of Appeal specified the criteria that should govern the process of assessing the reasonableness of adisciplinary penalty.

It stated: [TRANSLATION] [36] In conclusion, although the Act provides a right of appeal from the decisions of the Disciplinary Committee, the expertise of thisCommittee, the object of the Act and the nature of the question at issue militate in favour of a higher degree of deference than thecorrectness standard. The appropriate standard of review is therefore reasonableness simpliciter and the Court of Québec, sitting inappeal from the penalty imposed by the Disciplinary Committee, should not intervene unless the appellant shows that this decision isunreasonable.

The penalty imposed is not unreasonable simply because it is lenient or severe; it becomes so when it is so severe, or solenient, that it is unfair or inadequate in light of the gravity of the misconduct or the mitigating or aggravating circumstances of the case. [126] What is the situation in the present case? [127] Given the very general nature of the appellant's grievance in respect of the penalty, it is appropriate to reproduce in their entiretythe reasons for the decision on the penalty rendered July 4, 2012, to dispel any ambiguity. [TRANSLATION] [13] The provisions of

section 235 of the Police Act specify that, in determining the penalty, the Committee must take into account

the gravity of the misconduct having regard to all the circumstances, and the ethical record of the police officer cited. [14] In its role as guardian of compliance with the standards of conduct prescribed for all Quebec police officers which was given to it by the legislature, the Committee must take into account the primary objective of the Code of ethics of Québec police officers ( Code ), which is the protection of the public. It is therefore in light of this objective that the Committee will assess the fairness and reasonableness of the penalties it must impose on the police officer in this case. [15] The objective of the Code is set forth in its

section 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 . [16] The Committee reiterates that the penalty must meet the criteria of deterrence and denunciation.

It must also be consistent with its case law. [17] Given the circumstances, the gravity of the misconduct is assessed by considering the flagrant lack of judgment shown by the police officer at the time of the event when he left his minimum safety zone and placed himself in the traffic lane of the vehicle he wished to intercept. [18] By acting as he did, he needlessly exposed himself to a dangerous situation beyond his control, as he could not control the reaction of the drivers who would see him or, even worse, those who wouldn’t, thus endangering his safety and that of the drivers and their passengers. [19] As for the gravity of the misconduct, the Committee believes that it justifies the imposition of a suspension without salary. [20] The decisions cited by the Commissioner are in all cases suspensions ranging in length from 4 to 15 days. [21] In Songa-Songa and Lapointe , the two police officers involved placed themselves on the roadway to intercept a driver. [22] In Songa-Songa , the Committee wrote: [TRANSLATION] [25] In this case, the Committee is of the opinion that Officer Songa-Songa did not make sure he was visible, and believes he was not in a safe position when he placed himself on the roadway.

The Committee is of the opinion, rather, that this decision by the police officer shows a flagrant lack of judgment on his part. [23] And in Lapointe , the Committee explained: [TRANSLATION] Although he always acted in this manner, the Committee is of the opinion that Officer Lapointe lacked judgment by placing himself in the middle of the highway to intercept Vaval's vehicle.

It is this carelessness that created a dangerous situation for the safety of both the police officer and of each occupant of the moving vehicles, including Vaval's. [24] It is important to note that in both cases, the penalty was four days' suspension without salary. [25] Although the Committee is of the opinion that a suspension is called for in this case, in light of all the circumstances, it does not agree with the 15-day suspension proposed by the Commissioner's lawyer, as sanctioned in Ouellet .

In that case, it was a matter of careless driving while in pursuit of a motorcyclist, which differs from the circumstances of this case. [26] After having examined the Committee's case law and considered the gravity of the alleged misconduct, and given the circumstances, the Committee is of the opinion that a five-day suspension without salary for each count is appropriate. [27] Finally, the Committee takes into account the fact that Officer Sène had five years of service at the time of the events and that there is no record of ethical misconduct in his file. (Citations omitted.) [ 128 ] It appears from these reasons that the Committee correctly directed itself in law.

Its decision took into account public interest imperatives such as deterrence, denunciation, and similarity of penalties, and it also considered the gravity of the misconduct, the appellant's years of service, and the fact that his ethical record is spotless. [ 129 ] It is clear that the appellant's grievance is ill-founded.

The decision does not favour the objective of protecting the public over the appellant's considerations or the seriousness of the breach he committed. [ 130 ] It is certainly not a penalty of such severity as to be considered unfair or inadequate as defined by the Court of Appeal in Pigeon . [ 131 ] The penalty meets the standard of reasonableness; there are no grounds for intervention. [ 132 ] In conclusion, the appellant has not shown any serious reason that could lead the Court to consider that the decisions appealed from contain unreasonable errors justifying its intervention in appeal. [ 133 ] The appeal must therefore be dismissed.

[ 134 ] FOR THESE REASONS , the Court: [ 135 ] DISMISSES the appeal; [ 136 ] Without costs. __________________________________ PATRICK THÉROUX, J.C.Q. Me Ronald Picard Trudel Nadeau For the appellant Me Louise Papineau Cloutier Mathieu Avocats For the respondent