2010 QCCA 2302, 2010 QCCA 2302

Unofficial English Translation Morin c. Simard 2010 QCCA 2302 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-019328-095 (500-17-043793-085) DATE: December 14, 2010 CORAM: THE HONOURABLE ANDRÉ BROSSARD, J.A. JACQUES A. LÉGER, J.A. JEAN BOUCHARD, J.A. NICOLAS MORIN and JEAN-DAVID OUELLET APPELLANTS - impleaded parties v. CLAUDE SIMARD, in his capacity as POLICE ETHICS COMMISSIONER RESPONDENT – plaintiff and THE HONOURABLE JUDGE JACQUES PAQUET, J.C.Q.

IMPLEADED PARTY – defendant JUDGMENT [ 1 ] THE COURT; - On appeal from a judgment rendered on December 17, 2008, by the Superior Court, District of Montreal (the Honourable Mr.

Justice Kevin Downs), granting the respondent's application for judicial review of a decision of the Court of Quebec (the Honourable Judge Jacques Paquet), which allowed the appellants' appeal of two rulings by the Police Ethics Committee finding them to have committed a number of breaches to the the Code of ethics of Québec police officers and imposing disciplinary sanctions; [ 2 ] After having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Brossard, J.A., with which Léger and Bouchard, JJ.A. agree: [ 4 ] ALLOWS the appeal, without costs in appeal, for the sole purpose of returning the file before the judge of the Court of Quebec for that court to decide the appeal of the ruling on sanctions rendered by the Police Ethics Committee on May 16, 2007, and dismisses the appeal on the merits.

ANDRÉ BROSSARD, J.A. JACQUES A. LÉGER, J.A. JEAN BOUCHARD, J.A. Mtre Katty Duranleau Trudel, Nadeau For the appellants

Mtre Sylvain Ayotte Cloutier, Mathieu For the respondent Date of hearing: October 27, 2010 REASONS OF BROSSARD, J.A. [ 5 ] The appellants appeal a judgment of the Superior Court (the Honourable Mr. Justice Kevin Downs) granting the respondent's application for judicial review of a judgment of the Court of Quebec (the Honourable Judge Jacques Paquet) allowing the appellant's appeal of two rulings made by the Police Ethics Committee (the Committee) that found them to have committed a number of breaches to the Code of Ethics of Quebec Police Officers [1] and imposing disciplinary sanctions on them.

FACTS AND PROCEEDINGS [ 6 ] The appellants are police officers working for the City of Montreal. In its decision, the Court of Quebec summarized the events as follows: [translation] [6] On May 17, 2004, at around 3:40 a.m., the appellants went to Bar 99 on the corner of Hochelaga and de Lasalle streets, in Montreal, for what they believed was an armed robbery. [7] Once on the scene, an individual pointed to another who was fleeing the scene and told the officers, amongst other things, "It’s him". [8] The appellants drove their car toward this person.

The fleeing individual caught up with and joined a group of five persons. David Simard was part of this group. The appellants believed that the individual was also part of the group. [9] In the space of a few seconds, the appellants proceeded to arrest the individual in question. [10] The rest is subject to differing versions. The actions of the police officers are described by Sébastien Pageau and Sabrina Tremblay, the main witnesses called by the respondent David Simard, and by the appellants in ways that are favourable to their respective positions. [11] According to Mr. Simard, Mr. Pageau, and Ms.

Tremblay, Officer Morin was rude and brutal toward Mr. Simard, making inappropriate comments and using excessive physical force, going so far as to cause him to pass out by applying a choke hold on him. [12] According to the appellants, Mr. Simard was arrogant and obstructed their work. The appellant Morin added that he was assaulted by Mr. Simard. For the appellants, the methods and the force used were proportionate to the situation created by Mr. Simard's attitude. [13] These events, which we will revisit, occurred between 3:39 a.m. and 3:45 a.m. and ended in Mr. Simard's arrest.

He was then taken to the police station where he was put in jail at 4:58 a.m. and released at 7:37 a.m. [14] With regard to what happened during the sequence of events during this second period, the versions of Mr. Simard and the appellants are just as conflicting. [15] Mr. Simard asserts that the appellants, and more particularly Officer Ouellet, were rude to him and insulted him by calling him an imbecile, amongst other things. Furthermore, still according to Mr.

Simard, the appellants tried to convince him not to file an ethics complaint by offering not to press criminal charges in exchange. [16] For their part, the appellants state that they tried to assist Mr. Simard by helping him to see and acknowledge that he had acted inappropriately. [17] The appellants, including Officer Ouellet, maintain that they were not rude, nor was there any question of any understanding as alleged by Mr. Simard. [18] Toward the end of the meeting, the appellants informed Mr. Simard that charges would be brought against him.

Charges of assault and obstructing police work were indeed brought by Detective-Sergeant Yvan St-Louis, but were later withdrawn without a trial taking place. [19] After releasing Mr. Simard, the appellants, and more particularly Mr. Morin, prepared and signed an occurrence report. The respondent considers this occurrence report to be false and, moreover, that the appellants brought charges against Mr.

Simard that they knew to be unfounded. [ 7 ] On December 13, 2005, after reviewing the file and the investigation, the respondent, who is the police ethics commissioner, filed summons to appear before the Committee against the appellants. The summons basically allege that the appellant Morin failed to be respectful and polite toward the complainant, displayed an aggressive attitude, used excessive force, and knowingly brought charges that were unjustified and unfounded.

As for the appellant Ouellet, it is alleged that he acted in a way affecting the confidence and consideration required by his position, that he failed to be respectful and polite toward the complainant, and that he abused his authority

by knowingly bringing unfounded charges against the complainant. [ 8 ] On February 1, 2007, the Committee found that the appellant Morin had in fact committed two of the alleged breaches, namely, using excessive force and knowingly bringing unjustified charges. As for the appellant Ouellet, the Committee found him guilty of having knowingly brought unfounded charges and of having failed to be respectful or polite toward the complainant.

On May 16, 2007, the Committee suspended the appellant Morin without pay for 25 and 60 business days and suspended the appellant Ouellet without pay for 4 and 60 business days. [ 9 ] The ruling gave a detailed analysis of all the testimony heard, including that of the complainant and two other witnesses called by him and the testimony of the two appellants. It also pointed out the contradictions in each person's testimony in considerable detail and found that, in spite of this, the complainant's witnesses were credible and the evidence was preponderant. [ 10 ] Pursuant to

section 243 of the Police Act , [2] the appellants appealed the Committee's rulings and sanctions as of right. [ 11 ] On May 7, 2008, the Court of Quebec allowed the appeal on the ground that the Committee had incorrectly assessed the evidence, that it had erred in its assessment of the credibility of the witnesses, that it had ignored the context in which the police action had taken place and that, by rejecting the testimony of the police officers, it had shown a determinative bias against the appellants and in favour of the complainant. [ 12 ] Before the Court of Quebec, the appellants argued that the complaint filed against them was prescribed because the law provides that a complaint is prescribed after one year from the event giving rise to it and that the day in question must be included when computing the time period.

The events occurred during the night of May 17, 2004, and the complaint was lodged on May 17, 2005. [ 13 ] The appellants' argument was not accepted by the Court of Quebec. On this issue, it found that

section 150 of the Police Act [3] should be interpreted in accordance with the guiding principles stated in

article 2879 of the Civil Code of Québec , which provides: Art. 2879. The period of time required for prescription is reckoned by full days. The day on which prescription begins to run is not counted in computing such period. Prescription is acquired only when the last day of the period has elapsed.

Where the last day is a Saturday or a non-juridical day, prescription is acquired only on the following juridical day. [ 14 ] Thus, after performing its own analysis of the evidence adduced before the Committee and the reasons offered by the Committee for finding the appellants guilty, the Court of Quebec found that the appeal had merit and set aside the judgment of guilt rendered by the Committee on February 1, 2007, declaring the appellants to be not guilty of the alleged offences. [ 15 ] The respondent filed an application for judicial review of this decision by the Court of Quebec.

The Superior Court granted the application for judicial review and restored the Committee's disciplinary rulings on the ground that the Court of Quebec had exceeded its jurisdiction by simply substituting its own assessment of the evidence and facts, and even of the credibility of the witnesses, without showing any deference toward the Committee's conclusions, or more specifically, toward the Committee's assessment of the credibility of the testimony it had had the advantage of hearing and seeing in person. In so doing, Paquet J. went against the teachings of the Supreme Court of Canada in Dunsmuir v.

New Brunswick , [4] Dr. Q. v. College of Physicians and Surgeons of British-Columbia , [5] New Brunswick Bar v. Ryan , [6] and Association des courtiers et agents immobiliers du Québec v. Proprio Direct inc . [7] [ 16 ] The Superior Court granted the application for judicial review, set aside the judgment of the Court of Quebec and restored the Committee's rulings outright. These rulings had been the subject of the appeal before the Court of Quebec, without this last court deciding or, obviously, stating an opinion on the issue in light of its conclusion on the merits.

Under the circumstances, the Superior Court should have returned the file to the Court of Quebec so that the latter might rule on the sanctions imposed by the Committee following its verdict. [ 17 ] Also, the Superior Court expressed its agreement with the Court of Quebec's finding regarding the prescription period. [ 18 ] The present appeal was authorized by a judge of this Court on January 15, 2009. [ 19 ] We may succinctly summarize the various stages of the file as follows: - The events alleged against the appellants occurred on May 17, 2004; the complaint was filed on May 17, 2005; - The Committee before which the complaint was brought rejected the arguments based on prescription and found that the appellants had breached some of the ethical provisions governing them; - The Court of Quebec, sitting in appeal, proceeding in turn to analyze the evidence in full and the reasons given by the Committee, found the opposite of the Committee and dismissed the complaint filed against the appellants; - The Superior Court, sitting in judicial review and not in appeal of the Court of Quebec judgment, provided a more succinct analysis of the Court of Quebec's reasons to find against the Committee's reasons and found that: (1) the Court of Quebec's appellate jurisdiction, notwithstanding the clear terms used in the Police Act , is of the nature of a judicial review; (2) this jurisdiction must be exercised with deference to the findings of fact made by the Committee and must not constitute a mere substitution of opinion and perception; (3) its own analysis of the evidence and the reasons of both lower courts showed that the Court of Quebec simply improperly substituted its

own perception of the situation; (4) by doing so, the Court of Quebec exceeded its own jurisdiction and opened the door to its judgment being judicially reviewed by the Superior Court. [ 20 ] It is now time for the Court of Appeal, the fourth tier, to hear the dispute whose solution evidently lies first and foremost in the evidence and in the analysis already performed by the three previous tiers. THE ISSUES IN DISPUTE AND THE GROUNDS OF APPEAL [ 21 ] This Court sits in appeal not of the decision or the judgment a quo of the Court of Quebec, and even less so of the Committee's ruling.

The issue before us, inasmuch as it is acknowledged by the parties that the applicable standard of judicial review by the Superior Court of the judgment of the Court of Quebec is that of reasonableness, is whether the Superior Court was justified to conclude that the judgment of the Court of Quebec was unreasonable. [ 22 ] We cannot do so without performing our own analysis of the reasonableness of the judgment of the Court of Quebec, because the Superior Court can only be wrong in this case if it erred in characterizing the judgment as being unreasonable by taking into account the Court of Quebec's analysis of the facts adduced before the Committee and the reasons of the Committee, whose ruling it set aside. [ 23 ] Inasmuch as this must be done while showing deference for the preceding opinion at every step, the exercise might be likened to pounding square pegs into a round hole. [ 24 ] The issues in dispute, presented in an order that differs very little from that suggested by the appellants, are the following: 1- Was the complaint at the root of the judicial dispute prescribed when it was filed, and did the lower courts err on this point? 2- Was the Committee's ruling biased, as the Court of Quebec found, in which case the latter's decision to thus justify the intervention and substitute its own analysis of the evidence would neither be unreasonable nor justify the intervention of the Superior Court? 3- Must the appellate jurisdiction unreservedly bestowed by Parliament on a judge of the Court of Quebec through the Police Act be restricted to a reviewing power similar to that conferred on the Superior Court pursuant to

article 846 of the Code of Civil Procedure rather than interpreted as being similar to this Court's appellate power? 4- The Superior Court's failure to order the return of the file to the Court of Quebec in order for the latter to decide upon the sanctions. ANALYSIS 1. Prescription of the complaint [ 25 ] The appellants maintain that the Superior Court, as well as the preceding jurisdictions, erred in law by concluding that the day on which the event occurred must not be included in the one-year time period to file an ethical complaint pursuant to

section 150 of the Police Act . Their argument is that the legislative intent, in providing that the right to complain is prescribed by a one-year time period from the date of the occurrence, was for the day of the occurrence to be included. Their argument relies on subsection 27(3) of the federal

Interpretation Act , [8] which states:

(3) Where a time is expressed to begin or end at, on or with a specified day, or to continue to or until a specified day, the time includes that day. [ 26 ] In the appellants' view, it is not necessary to apply the provisions of the Civil Code of Québec in a suppletive manner to interpret

section 150 of the Police Act . In support, the appellants argued the recent judgment of the Court of Quebec, Lapenna v. Simard [9] (the Honourable Judge Richard), which concluded that the Civil Code of Québec is inapplicable to matters of police ethics.

This judgment was reversed by the Superior Court, and that court's judgment was in turn affirmed, but for different reasons, by this Court, which heard that case on the same day as this one. [ 27 ] In Lapenna , the Superior Court had in fact reversed the Court of Quebec judgment by applying the provisions of the Civil Code of Québec in a suppletive manner and found that the provisions concerning the de facto impossibility of acting as a cause of interruption of prescription were applicable to ethical matters.

Our Court dismissed the appeal of this judgment on the factual ground that the lateness in filing the complaint, which was sent by registered mail as permitted under

section 143 of the Police Act , could not be set up against the complainant because the delay in delivery was entirely due to the situation at the office of the Ethics Commissioner resulting from the complete closure of the said office. Pursuant to the provisions of the collective agreement with its employees, the Christmas holiday was prolonged to include the week following this holiday, an unforeseeable and exceptional event for third-parties. [ 28 ] The facts and grounds of appeal in the present case dictate that this Court determine the issue.

[ 29 ] The Superior Court, in both Lapenna and this case, as well as the Court of Quebec and the Committee in this case, concluded that the silence of the Police Act regarding the parameters and the methods to govern the computation of prescription could lead to absurd results, making it necessary to apply the provisions of the Civil Code of Québec in a suppletive manner, that is, to apply the general law of Quebec governing the relationships between individuals to interpret

section 150 and establish relative standards for the starting point to compute the prescription period and for the impossibility to act that cannot be attributed to complainants. [ 30 ] I completely share this point of view but would add that the federal

Interpretation Act is not applicable to this issue. [ 31 ] The

preamble to the Civil Code of Québec clearly expresses the supremacy of its provisions, subject to exceptions expressly stated in other statutory acts, which is not the case here: The Civil Code of Québec , in harmony with the Charter of human rights and freedoms (chapter C-12 ) and the general principles of law , governs persons, relations between persons , and property. The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune , expressly or by implication.

In these matters, the Code is the foundation of all other laws , although other laws may complement the Code or make exceptions to it. [ 32 ] The commentary of the Minister of Justice adds to the second paragraph of the

preamble with the following: [translation] The second paragraph establishes the scope of the Civil Code as the foundation of private law and its privileged position within our legislative system. One of the objectives of this paragraph is to favour a dynamic

interpretation of the Civil Code, as well as the application of its provisions to interpret and apply other laws and complete their deficiencies when these laws address subjects or call on notions or institutions that fall under the Civil Code. [ 33 ] Though disciplinary law constitutes a sui generis area of law, it is nonetheless a body of rules intended to govern and standardize relationships between persons, either individuals or corporations, in matters specifically involving ethics. In my opinion, it relies on the civil relationships between them, therefore, on the body of general law. I do not hesitate to find that, faced with the silence of

section 150 of the Police Act , the provisions of the Civil Code of Québec must be applied in a suppletive manner with regard to prescription, not to interpret

section 150, but to complete it. [ 34 ] Thus, I agree with the lower courts that

article 2879 of the Civil Code of Québec must be applied to this case: 2879. The period of time required for prescription is reckoned by full days. The day on which prescription begins to run is not counted in computing such period. ... [ 35 ] Moreover, this philosophy expressed in

article 2879 is not the only manifestation of legislative intent with regard to computing time periods in civil law or common law. The same concept can be found in

section 8.1 of the Code of Civil Procedure . [ 36 ] Moreover, Parliament has reiterated this concept by approving and acknowledging

section 5 of the Rules of evidence, procedure, and practice of the Comité de déontologie policière , [10] which is drafted as follows: 5. In computing any time period, the last day is counted, but the day commencing the period is not counted. [ 37 ] This rule was enacted by the Committee under the authority of

section 237 of the Police Act .

Although it does not necessarily address the issue of prescription prior to the start of proceedings but rather the rules of evidence, procedure, and practice before the Committee, it nonetheless shows the constancy of legislative intent regarding the computation of time periods as they apply to civil relationships. [ 38 ] Finally, in closing on this issue, I should point out that the statutes on which the respondent relies to conclude that the words "is prescribed" must be interpreted as forfeiture are penal statutes, which, by definition, cannot be interpreted on the basis of a civil law concept. [ 39 ] In short, I would dismiss this ground of appeal. 2.

The appearance of partiality by the Ethics Committee [ 40 ] The appellants essentially argue that the Superior Court erred in finding that the Court of Quebec had exceeded its jurisdiction by concluding that the Committee's ruling was unreasonable because of partiality. In their view, the Superior Court went down the wrong path in dismissing their arguments relating to a reasonable apprehension of bias. [ 41 ] The Superior Court’s conclusion was based on a review of the reasonableness of the Committee's decision to grant credibility to the complainant and his witnesses rather than to the appellants.

In so doing, it therefore considered whether the elements of evidence adduced before the Committee justified the credibility assessment it carried out, not whether, as the Court of Quebec had found, the Committee’s finding in this respect demonstrated a reasonable apprehension of bias. [ 42 ] To justify their hypothesis that the Court of Quebec's finding was not unreasonable and that it could rely on the evidence, the appellants are, in fact, asking this Court to perform its own analysis and find that it was reasonable for the Court of Quebec to conclude that the contradictions in the testimony for the prosecution affected the probative and preponderant nature of the prosecution's evidence,

while the Committee came to the opposite conclusion by relying on hypotheses and by imputing intentions to the appellants. [ 43 ] In short, the decision of the judge of the Court of Quebec was therefore reasonable on the basis of the evidence adduced, since it was the Committee's ruling that was unreasonable as it was biased in its assessment of the impact of the contradictions in the testimony. [ 44 ] The respondent, for his part, argues that the appellants never raised the argument of a reasonable apprehension of bias before the Committee and that they are, in fact, unable to demonstrate the existence of a reasonable apprehension based on serious grounds. [ 45 ] According to the respondent, a comparative analysis of the findings of fact of the Committee and the Court of Quebec reveals that the Court of Quebec judge simply disagreed with the Committee's ruling on the credibility of the different testimonies.

The respondent argues that the Court of Quebec showed the appellants an indulgence that it specifically criticized the Committee for having given the complainant and his witnesses, even though the Committee was the only body privileged to have seen the witnesses and therefore have been in a position to assess their attitudes and behaviour [11] and thus determine their credibility. [ 46 ] My analysis of the judgment of the Court of Quebec differs from that of the appellants.

In my opinion, the basis of that court's decision is not the existence of a reasonable apprehension of bias on the Committee's part, but rather, in the personal opinion of the Court of Quebec, the expression of a criticism of the fact that the Committee ignored the context of the police operation and declared the appellants not credible on the basis of non-determinative elements. [ 47 ] The judge of the Court of Quebec stated the following: [translation] [45] Generally speaking, what becomes obvious when reading the ruling is the indulgence enjoyed by the plaintiff's witnesses, as opposed to the appellants, in the eyes of the Committee.

As proof, one need only compare paragraphs 270, 284, 286, 287, 288, 428, and 449 of the ruling with paragraphs 277, 291, 309, 313, 318, 322, 412, and 415. [46] This indulgence appears to bias the Committee's assessment of several elements of evidence of varying degrees of importance, which it considers without necessarily respecting the chronological order. [47] Additionally, the Committee too often ignores the context of the police operation (potential armed robbery).

The only moment it appears to take this into account is when it excuses the complainant for not having a clearer memory of some of the events. ... ... [100] The Committee concluded as it did because it did not give any credibility to the testimony of the appellants. The elements on which the Committee relied to arrive at this conclusion, however, are not determinative and are insufficient to this end.

Had it accepted the version of the police officers, it would have found that the way they proceeded was justified in the circumstances. [ 48 ] The Superior Court summarizes as follows the core of the criticisms by the Court of Quebec: [translation] [13] Thus, the reviewing judge criticizes the Committee for assessing the credibility of the police officers by referring to contradictions on minor points and by favouring the complainant's version and that of his witnesses rather than that of the police officers in the context of an armed robbery. [ 49 ] I agree with the Superior Court that therein does indeed lie the heart of the matter, not in the existence of an alleged apprehension of bias by the Committee, an argument, it should be noted, that was summarily dismissed by the Superior Court. [ 50 ] In fact, pursuant to

section 45 of the Rules of evidence, procedure and practice of the Comité de déontologie policière , the existence of an apprehension of bias should have been raised as soon as a party was aware of the circumstances that could give rise thereto.

This apprehension, however, was never raised in the notice of appeal to the Court of Quebec. [ 51 ] That, in my opinion, is sufficient to dismiss this ground of appeal, which is otherwise unsupported by the evidence and which, if it had been the primary ground for the Court of Quebec, should have led it not to dismiss the complaints but only to set aside the Committee's ruling and refer the file before a different ethics committee to proceed on the merits once again. 3.

Does the appellate jurisdiction bestowed by Parliament on a judge of the Court of Quebec through the Police Act empower the latter to substitute his own assessment of the testimony, its probative value, and its credibility for that of the Ethics Committee? [ 52 ] The appellants have asked us to review this question once again, though this Court has already addressed this issue in a majority decision in Desjardins v.

Comité de déontologie policière . [12] [ 53 ] The appellants point out that the Court of Quebec is an appellate body that may hear any new evidence and render the judgment that should have been rendered in the first place. Indeed, they observe, the rulings of the Committee may be appealed as of right before the Court of Quebec, and that Court's judgment is final and without appeal.

According to the appellants, it is the Superior Court rather that has a power of review with respect only to judgments of the Court of Quebec, rather than the Court of Quebec with respect to rulings of the Committee. [ 54 ] The Superior Court should therefore have limited itself to asking whether the Court of Quebec, as an appellate body, had

exercised its jurisdiction reasonably, not whether the Court of Quebec had correctly applied the standard of reasonableness to the Committee's ruling.

In their opinion, that is the Superior Court's determinative error justifying the intervention of this Court. [ 55 ] In short, and as we will discuss later, the appellants would prefer to rely on the dissenting reasons of my colleague Beauregard, J.A., in Desjardins than on the majority in that case, which is rather unusual. [ 56 ] Not surprisingly, the respondent, pointing out that this ground of appeal was not raised in the application for leave to appeal to this Court, argues that majority opinion must be followed.

According to that opinion, it would appear that Paquet J. of the Court of Quebec is the one who should have shown deference to the Committee's ruling, which he did not do. Indeed, the Court of Quebec did not analyze the reasonableness of this ruling, but instead repeated the analysis of the credibility of the witnesses and imposed its own

interpretation on the evidence as a whole, without ever considering whether the Committee's ruling might reasonably be based on the evidence. [ 57 ] In Carbonneau v. Simard , [13] my colleague Dalphond J.A., sitting as a single judge, dismissed a motion for leave to appeal in a case that was very similar to our own, save for the issue of prescription. He expressed himself in the following terms: [translation] [1] I am of the view that the criteria set out in

article 26 C.C.P. are not met and, consequently, the motion for leave to appeal must be dismissed. Ι [2] The petitioners submit that the Superior Court judge was wrong to state that the judge of the Court of Quebec, sitting in appeal of a police ethics committee, should have shown deference to the questions of mixed law and fact decided by the Committee (standard of conduct) and to the sanctions imposed (suspension of one and three days). ΙΙ [3] The applicable principles have been carefully crafted by the Supreme Court of Canada and applied by our Court in various judgments.

I do not see anything that would justify that this Court revisit the issue. [4] As per McLachlin C.J. in Dr. Q. , a unanimous judgment by the Supreme Court, the argument that "because the Act grants a right of appeal, the matter could be dealt with without recourse to the usual administrative law principles pertaining to standard of review" is an "erroneous assumption". [5] In Ryan , Iacobucci J., in referring to McLachlin C.J's passage in Dr.

Q , wrote: "As the Chief Justice confirms ... the pragmatic and functional approach applies to judicial review, whether that review is by way of application to the court or statutory right of appeal. This means that courts must always select and employ the proper level of deference". [6] Dunsmuir did not question this principle, quite the opposite. [7] Therefore, in Association des courtiers et agents immobiliers du Québec v.

Proprio Direct inc. , since rendered, in a case where the Court of Quebec sat in appeal of a ruling by the discipline committee of the Association des courtiers et agents immobiliers du Québec, the Supreme Court reiterates that the standard of review analysis is applicable and that the judge of the Court of Quebec was required to show deference in interpreting the standards of conduct and the imposition of sanctions. ΙΙΙ [8] These principles being stated, I find that the judge of the Superior Court correctly navigated the law and that his judgment does not reveal any weaknesses or grounds that would justify the intervention of the Court of Appeal.

Indeed, the judge of the Court of Quebec substituted his assessment concerning the questions of mixed law and fact for that of the Committee’s. It could not do so.

The Superior Court was right to intervene. [ 58 ] In short, he reiterated the findings of the majority judges in Desjardins , [14] who, following a thoroughly detailed analysis of applicable law, had already concluded: [translation] [43] In light of the case law, [translation] "[a]n exhaustive analysis is not required in every case to determine the proper standard of review"; it appears indisputable that the standard of reasonableness was the obvious choice and that the judge of the Court of Quebec should have shown greater deference to the Committee's ruling as the latter has an expertise that the reviewing judge does not possess, and all the more so when it is not a question of interpreting a statute but of analyzing the conduct of police officers with regard to a purely factual context. [ 59 ] Beauregard J.A., in his dissenting reasons, did conclude that one must make a distinction between the standard of review in appeal, the jurisdiction conferred upon the Court of Quebec in this case, as opposed to the standard of intervention in judicial review, which is usually within the scope of the Superior Court's jurisdiction.

But mostly, and more specifically as it pertains to the present case, I note his apprehension of the likely consequences of the majority position, which relied on the previously quoted decision of Dalphond J.A.: [translation] [80] That is why I respectfully submit that in such matters a party may not argue before the Superior Court that the judge of the Court of Quebec showed more or less deference to the Committee, which would require that the Superior Court re-examine the evidence to decide

between the Committee and the judge of the Court of Quebec. ... [83]The Supreme Court has frequently set aside judgments of the Court of Appeal because it substituted its own assessment of the facts for that of the presiding trial judge. The Supreme Court has gone so far as to state that such an intervention on the part of a court of appeal is an error of law. If, in this case, we were to say that the judge of the Court of Quebec should not have intervened — an issue on which I will not comment — we would have to say that it committed an error of law.

It would not be necessary, however, to find that, in making this error, it had committed a fraud on the law, violated the rule of law, or acted without jurisdiction thereby justifying the intervention of the Superior Court to quash its judgment. [ 60 ] While I am sympathetic to Beauregard J.A.'s opinion, supra , in my view the debate requires additional nuances, which could perhaps reconcile the two opposite, some might even say contradictory, opinions where cases raise nothing more than considerations of fact, credibility, and probative value.

In my opinion, the distinctions in such cases are purely theoretical and intellectual because there is no useful distinction to be made between the standard of unreasonableness [translation] "because unsupported by admissible and sufficient evidence" and the standard of the palpable and overriding error [translation] "that was not based on any sufficient evidence". The result, in both cases, is the same.

In the first case, the Court sitting in review will not intervene unless the judgment is unreasonable; in the second, it will not intervene unless there is a palpable and overriding error, which falls under the standard of reasonableness more than that of correctness. [ 61 ] Indeed, it appears very difficult to see a marked difference between the opinions of the Supreme Court of Canada concerning the jurisdiction of appellate courts, such as in Housen v. Nikolaisen , [15] for example, and that recently expressed in the judgments referred to above concerning so-called reviewing courts.

Dunsmuir purports to establish a synthesis that may be applied, mutatis mutandis , to both appellate courts and reviewing courts. [ 62 ] In this case, I find, like the majority in Desjardins , that the Court of Quebec should have shown deference toward the Committee's ruling because the appellants had not demonstrated any palpable or overriding error in the assessment of the testimony or the inferences to be drawn from the adduced facts, or otherwise demonstrated that the Committee's ruling was not one of the reasonably possible outcomes. [ 63 ] Like the Superior Court, I find that the Court of Quebec merely substituted its own assessment of the evidence for the Committee's without demonstrating that the Committee's ruling contained a palpable and overriding error in respect of the evidence or unreasonable. [ 64 ] The urgency of the situation did not, in itself, explain the contradictions found in the testimony of the appellants.

According to the Court of Quebec, these contradictions only concerned minor issues. In my opinion, the Court of Quebec was wrong to dissect the Committee's ruling as it did. As the Superior Court pointed out, the reasonableness of the ruling should have been assessed as against the evidence as a whole, which the Court of Quebec did not do. [ 65 ] The appellants did not show how the Committee's ruling was erroneous. Essentially, they criticized the Committee for having preferred the complainant's version after concluding that they lacked credibility.

From the moment the Committee accepted the version given by the complainant and his witnesses and found the appellants to be lacking in credibility, there was sufficient evidence to show, on a balance of probabilities, that the appellants had committed the breaches alleged against them. In the absence of proof of an unreasonable error by the Committee in assessing the evidence, which was to be considered as a whole, there was no cause for the Court of Quebec to intervene. I therefore find that the Superior Court was right to intervene. 4.

The Superior Court's failure to order the return of the file before the Court of Quebec in order for that court to decide the appeal of the sanctions ordered by the Committee. [ 66 ] In light of the conclusions on the preceding grounds of appeal, the file should be returned before the Court of Quebec for that court to decide the appeal of the sanctions imposed by the Committee.

Indeed, and as my colleague Dufresne J.A. wrote in the judgment authorizing the appeal, [translation] "the file should have been returned before the Court of Quebec by the Superior Court judge to dispose of the appeal of the sanctions imposed, which it did not do". [ 67 ] For these reasons, I would allow the appeal, without costs in appeal, for the sole purpose of returning the file before a judge of the Court of Quebec for that court to decide the appeal of the ruling on sanctions rendered by the Police Ethics Committee on May 16, 2007. ANDRÉ BROSSARD, J.A.