2013 NBCA 68, 2013 NBCA 68

COURT OF APPEAL OF NEW BRUNSWICK 98-12-CA NORMAN GERARD BELONG APPELLANT NORMAN GERARD BELONG APPELANT - and - - et - HER MAJESTY THE QUEEN IN RIGHT OF THE ATTORNEY GENERAL OF CANADA and TIMOTHY QUIGLEY RESPONDENTS SA MAJESTÉ LA REINE DU CHEF DU PROCUREUR GÉNÉRAL DU CANADA et TIMOTHY QUIGLEY INTIMÉS Belong v. Her Majesty the Queen in Right of the Attorney General of Canada and Timothy Quigley, 2013 NBCA 68 Belong c.

Sa Majesté la Reine du chef du procureur général du Canada et Timothy Quigley, 2013 NBCA 68 CORAM: The Honourable Justice Deschênes The Honourable Justice Robertson The Honourable Justice Bell CORAM : l'honorable juge Deschênes l'honorable juge Robertson l'honorable juge Bell Appeal from a decision of the Court of Queen's Bench: July 3, 2012 Appel d'une décision de la Cour du Banc de la Reine : le 3 juillet 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 218 Décision frappée d’appel : 2012 NBBR 218 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: June 20, 2013 Appel entendu : le 20 juin 2013

Judgment rendered: December 12, 2013 Jugement rendu : le 12 décembre 2013 Reasons for judgment by: The Honourable Justice Bell Motifs de jugement : l'honorable juge Bell Concurred in by: The Honourable Justice Deschênes The Honourable Justice Robertson Souscrivent aux motifs : l'honorable juge Deschênes l’honorable juge Robertson Counsel at hearing: For the appellant: Clarence L. Bennett For the respondents: Lori Rasmussen and Patricia MacPhee Avocats à l'audience : Pour l’appelant : Clarence L. Bennett Pour les intimés : Lori Rasmussen et Patricia MacPhee THE COURT The appeal is dismissed with costs of $20,000.

The judgment of the Court was delivered by BELL, J.A. I. Facts [ 1 ] Norman Gerard Belong (Cst. Belong) has been employed as a police officer since 1992, six years as a member of the Moncton Municipal Police Force and from 1998 until the present as a member of the Royal Canadian Mounted Police. On January 14, 2000, Cst. Belong’s spouse, Julie Haywood, complained to Cst. Belong’s supervisor that Cst. Belong had committed acts of domestic violence against her. As a result of an investigation conducted by Cst. Greg Laturnus from a different detachment of the RCMP, Cst.

Belong was charged with offences of uttering a threat ( s. 264.1(2) (

b) of the Criminal Code, R.S.C. 1985, c. C-46), assault causing bodily harm ( s. 267(1) ( b )) and sexual assault ( s. 271(1) ( b )). [ 2 ] On December 19, 2000, a Provincial Court judge convicted Cst. Belong of all three offences and, on February 14, 2001, imposed a 10 month conditional sentence. Cst. Belong appealed but discontinued his appeal. On November 30, 2001, Ms. Haywood, who was by that time a constable in the RCMP, swore an affidavit recanting aspects of her testimony as it related to the sexual assault. She did not recant her testimony in relation to the uttering of a threat (a threat by Cst.

Belong that he would “put a gun to her mouth”) or the assault causing bodily harm (an incident in which he bit her on the arm and left bite marks).

[ 3 ] As a result of Cst. Haywood’s recantation in relation to the sexual assault, Cst. Belong’s subsequent appeal of all three convictions was set for August 8, 2003. On that date, after the admission of the fresh evidence, the Crown did not contest the appeal and, subsequently, offered no evidence on the charges. The

summary conviction appeal court quashed all convictions and directed verdicts of acquittal. In spite of the acquittals, the RCMP internal disciplinary proceedings continued. On September 24, 2003, Cst. Belong was served with a Notice of Disciplinary Hearing pursuant to the Royal Canadian Mounted Police Act , R.S.C. 1985, c. R-10, s. 43(4). One of Cst.

Belong’s responses to the receipt of that notice was to commence a civil action in which he contended, among other things, that the RCMP, its Commissioner and other members had conducted themselves in an “unfair, discriminatory, arbitrary and scandalous manner” toward him. Those pleadings would be amended several times prior to trial; however, the essentials of the allegations, bias, negligent investigation and the tort of abuse of process would remain. [ 4 ] At an internal discipline hearing held on June 14, 2004, Cst. Haywood confirmed the truth of much of her original testimony offered at Cst.

Belong’s criminal trial. The results of that June, 2004 hearing, wherein Cst. Belong was found guilty of disciplinary violations, were eventually set aside by the RCMP External Review Committee because the hearing had proceeded in Cst. Belong’s absence. In the result, the RCMP imposed informal discipline which consisted of a written reprimand and a recommendation for training and counseling. Cst. Belong remains a member of the RCMP. [ 5 ] The trial of the action was held over 11 days, between March 2 nd and March 17 th , inclusive, during which time eleven witnesses testified.

In a 120 page decision, the trial judge dismissed the action and awarded costs against Cst. Belong. In the course of the trial, the judge admitted the transcripts of the criminal trial into evidence for the purposes of showing what was in the “mind” of the RCMP officers when they took disciplinary action against Cst. Belong. Furthermore, the trial judge refused to admit medical evidence offered by Cst. Belong in the absence of the treating physicians who had authored the reports. [ 6 ] Cst. Colleen Bevington was a member of the Codiac detachment of the RCMP at the time difficulties arose between Ms.

Haywood and Cst. Belong. In fact, it was on Cst. Bevington’s recommendation that Ms. Haywood reported the issues which arose between her and her husband to the Codiac RCMP. Given one of the grounds of appeal challenges the trial judge’s assessment of Cst. Bevington’s role in the investigation conducted by the RCMP, I set out verbatim excerpts of some of the trial judge’s findings in that regard: […] Officer Colleen Bevington is a work colleague of the Plaintiff (same shift).

Herself and her husband Officer Scott Bevington, have been close friends to the Plaintiff and Julie Haywood. […] It is worth noting that, upon any RCMP officer obtaining information pointing to their fellow officers having committed an improper or unlawful conduct, in breach of the RCMP Code of Conduct or in breach of the criminal law, those officers have an obligation to report same. […] January 13 th , 2000: Julie Haywood shows to Officer Colleen Bevington the bite marks left on her arm by the Plaintiff’s three days earlier.

Officer Bevington insists that the matter be reported to Staff Sergeant Randy Cunningham. [….] Criminal Code Procedure: That interview with Colleen Bevington reveals the difficult situation she has found herself in. She is indeed a colleague to the Plaintiff. They even work the same shift. She is as well a very good friend of the Plaintiff’s wife, Julie Haywood. Herself and her husband, RCMP Officer Scott Bevington, have been socializing on a regular basis with the Plaintiff and Julie Haywood. Colleen Bevington has also been receiving confidence from both the Plaintiff and Julie Haywood.

[…] The Court was then asked by the Plaintiff to draw an “adverse inference” against the Defendants for not putting Officer Bevington on the stand. Court’s conclusion – Re Colleen Bevington’s participation: This Court, having considered the above, finds it is justified and makes the four following inferences with respect to Colleen Bevington: 1. She has exercised pressure on Julie Haywood to convince her to give a written statement to the police about the actions of the Plaintiff; 2.

Before Julie Haywood had made any declaration about the events of January 14 th , 2000, Officer Bevington already held the belief that the Plaintiff had sexually assaulted Julie Haywood; 3. Officer Bevington rose more than once the issue of a possible sexual assault from the Plaintiff before Julie Haywood eventually made a declaration to the effect and 4. Finally, she at least up to March, 2000, was too personally involved in that investigation.

Court’s conclusion – Re Colleen Bevington’s participation: Except for those four above noted inferences, the Court does not make further “adverse inferences” in relation to the other allegations made against Colleen Bevington in the Plaintif’s pleadings. Comments & conclusions: It is also clear to this Court that, but for Officer Bevington’s insistence, Julie Haywood would have likely never reported any events to Staff Sergeant Randy Cunningham, at least not as early as she did on January 14 th , 2000.

Comments & conclusions: In spite of the above, once these said events were communicated by Julie Haywood to Officer Bevington, it cannot be considered negligent or abusive or in any shape or form Tortuous [ sic ], for Colleen Bevington, who was a RCMP Officer, to insist that these events be reported to the authorities.

Comments & conclusions: Besides and in spite of those less than perfect conditions in the middle of which Officer Bevington found herself, the Court remains satisfied that her insistence upon Julie Haywood never went as far as inciting Julie Haywood in making false declarations or in giving false accounts about any of the events that ultimately translated into three criminal charges being laid against the Plaintiff. [paras. 59, 62, 65, 99-101, 104, 105, and 107] [ 7 ] With respect to the quality of the investigation, the trial judge, after having carefully examined the investigative steps undertaken by Cst.

Laturnus, concluded there was no negligence in the manner in which it was conducted (para. 125). [ 8 ] Cst. Belong’s allegation of abuse of process is premised in part on the fact that Cst. Haywood’s testimony regarding the death threat and the assault causing bodily harm, testimony determined to be unreliable by the Crown because of the recantation in relation to the sexual assault, was used for disciplinary purposes. Cst. Belong aggressively pursued all of his internal RCMP remedies with a large measure of success. The trial judge concluded, however, that no member of the RCMP committed any tort against him.

Cst. Belong appeals. II. Grounds of Appeal [ 9 ] Cst. Belong advances the following five grounds of appeal, which are set out verbatim from the Notice of Appeal: 1. The trial judge improperly admitted transcripts from the criminal trial and documents related to the disciplinary hearings into evidence; 2. The trial judge permitted an “Abuse of Process” by misapplying Ms. (now Cst.) Haywood’s evidence and credibility following Cst. Belong’s acquittal on all three criminal charges, based upon the discredited testimony of Ms. Haywood.

3. The trial judge displayed a reasonable apprehension of bias which impacted his analysis of the torts of “Abuse of Power” and “Negligent Investigation”. 4. The trial judge improperly refused to admit medical reports offered by Cst. Belong into evidence; 5. The trial judge erred “in his assessment of the role of Colleen Bevington, the significance of her actions, and the consequences of the Defendants” failure to recognize her improper behaviour. III. Analysis A.

Admission of transcripts from the criminal trial and disciplinary hearings [ 10 ] In considering this ground of appeal it is first relevant to set out in its entirety, paragraph 44 of the amended statement of claim: 44. Specifically, the Plaintiff states that the Defendants are guilty of the following tortuous (sic) conduct: (

a) Negligence in conducting their original investigation of the allegations against him; (

b) Abuse of their statutory powers under the Royal Canadian Mounted Police Act , R.S.C. 1985, c. R-10; (

c) Abuse of the process of the courts and abuse of the Defendant RCMP’s internal disciplinary processes to repeatedly relitigate issues already determined by a Court of competent jurisdiction; (

d) Conspiring against the Plaintiff to deprive him of his employment, destroy his reputation, and otherwise damage his interests; and, (

e) Intentionally inflicting mental suffering upon the Plaintiff resulting in a visible and provable mental illness. [ 11 ] Cst. Belong abandoned the conspiracy allegation at the close of trial. However, of the remaining torts pleaded, three of them are considered intentional torts. One cannot decide whether there is conduct amounting to abuse of statutory powers (a variant of misfeasance in public office), abuse of process or intentional infliction of mental suffering without proving intention to do harm. [ 12 ] The impugned transcripts were not admitted for the purpose of proving the truth of their contents.

Their purpose was to demonstrate what information was available to the RCMP at the time they made the decisions relevant to Cst. Belong’s disciplinary process. The trial judge clearly understood the distinction between material offered as proof of the truth of the contents and material offered to show what information the RCMP were relying upon at any given time. The trial judge said it this way: I’m not looking at the truth of what happened. The issue here is that ….it’s what was available to the RCMP. Whether it was true or not, the evidence that Mr.

Belong was giving in this trial, okay, it’s information that was made available, it was publicly in a … in a criminal proceedings. [sic] [Trial transcript, page 1192, lines 13 – 19]

[13] Stripped to its core, Cst. Belong’s major complaint is that the RCMP proceeded with its internaldiscipline proceedings in the face of acquittals on all three criminal matters. He challenges the bona fides of the RCMP in that regard.The trial judge, after reading Cst. Belong’s testimony at trial, reading the judgment of Provincial Court Judge Tonning, andacknowledging that the convictions would eventually be overturned said, “this Court can nonetheless understand why the RCMP has,still after 2003, maintained the intention to pursue the Code of Conduct Procedure” (para. 148).

Not only could the trial judge considerinformation available to the RCMP as they made their decisions, he was required to do so. I am of the view there is no merit to thisground of appeal. B. Abuse of Process [14] In pleading this ground of appeal, Cst. Belong appears to confuse the concept of the doctrine ofabuse of process, with its roots in the doctrine of res judicata and issue estoppel, with the tort of abuse of process. The doctrine of abuseof process is concerned with maintaining the integrity of the judicial process by, for example, preventing the same issue from beinglitigated in multiple forums.

This avoids the risk of inconsistent results which would bring the administration of justice into disrepute.The tort, on the other hand, is meant to address situations in which a person uses the processes of the court for an improper purpose. Thetrial judge articulated that the tort of abuse of process requires the establishment of the following two essential elements: 1. the misuse ofprocess for any purpose other than that which it was designed to serve; and 2. some overt act or threat, distinct from the proceedingsthemselves, in furtherance of the improper purpose. [15] Cst.

Belong failed to establish these elements. No evidence was led at trial to demonstrate theexistence of a collateral or improper purpose behind the RCMP’s decision to proceed with the disciplinary charges. Furthermore, Cst.Belong led no evidence of a definite act or threat in furtherance of such a purpose. Instead, Cst. Belong’s focus at trial was, and onappeal continues to be, that the disciplinary proceedings became an abuse of process by virtue of his acquittal on the criminal charges. He contends the trial judge ignored the decision of the Court in Toronto (City) v.

Canadian Union of Public Employees (C.U.P.E.),Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, and the observations of Cromwell, J.A. (as he then was) in Haché v. Lunenburg CountyDistrict School Board, 2004 NSCA 46, [2004] N.S.J. No. 120 (QL). Neither of those cases considered the tort of abuse of process.Rather, they were administrative law cases in which the integrity of the adjudicative process was called into question because of thepossibility of conflicting outcomes on the same issue by different adjudicative bodies.

The Courts concluded that, in such cases, thepotential for different outcomes on the credibility issue, and hence the ultimate decision, would bring the administration of justice intodisrepute.

Parenthetically, even though Haché is not applicable, it is interesting to note Cromwell J.A.’s statement with respect tocriminal and civil proceedings that arise out of the same factual circumstances: […] generally speaking, acquittal at a criminal trial does not foreclose relitigation of the same allegations in the employment context.One reason for this is that there is no inconsistency between an acquittal, which reflects the Crown's inability to establish its case beyonda reasonable doubt, and a finding in the employment context of just cause for discharge arising from the same facts, which need not beproved to the criminal standard. [para. 55] [16] This is not a situation akin to Haché where the doctrine of abuse of process was applied toprevent a disciplinary proceeding from continuing after the accused was acquitted at trial on the basis that no weight could be given tothe complainant’s evidence.

In the present case, there was no re-trial of the criminal charges and, hence, no negative credibilityfindings. C.U.P.E. is also distinguishable. In C.U.P.E. the grievor, who was found guilty in the criminal context, was later found not tohave committed the offence in the context of an administrative proceeding regarding his employment. The Court concluded that in theabsence of new evidence demonstrating innocence, it was not open to the grievor (offender) to relitigate his innocence on a lowerstandard. To permit him to do so would have called into question the trustworthiness of the guilty verdict. [17] In

summary, the facts and the law at issue in the present case are not at all similar to those inHaché and C.U.P.E. First, as already mentioned, they were not cases in which the tort of abuse of process had been pleaded. Second, inthe present case there was no adjudication of Cst. Belong’s guilt or innocence based upon the testimony of Cst. Haywood. Thedetermination of innocence was based solely upon the Crown decision to offer no evidence. Third, the trial judge acknowledged theequivocal recantation of the sexual assault by Cst.

Haywood, but concluded that recantation could not be used to invalidate the RCMPdecision to proceed with disciplinary charges founded on other allegations. [18] Applying R. v. Wigglesworth, (SCC), [1987] 2 S.C.R. 541, [1987] S.C.J. No.71 (QL), the trial judge correctly acknowledged that criminal and disciplinary proceedings can flow from the same facts and, given thedifferent standards of proof, disciplinary proceedings can proceed even if the criminal proceedings have resulted in an acquittal. [19] I am of the view the trial judge did not permit an abuse of process.

To the contrary, he properlyapplied the law regarding the tort of abuse of process and properly concluded it was not made out in the circumstances.

C. Apprehension of Bias [ 20 ] This third ground of appeal, as pleaded, raises issues of apprehension of bias, abuse of process and negligent investigation. Given that I have already considered the issue of abuse of process and there is no independent ground of appeal contending a misapplication of the law with respect to the tort of negligent investigation, I will limit my analysis to the appellant’s contention that several of the trial judge’s conclusions and inferences raise a reasonable apprehension of bias against Cst.

Belong. [ 21 ] I begin my analysis of this ground of appeal with the following observation. Judges make findings and inferences in the course of their decision-making which parties might find offensive, unkind or unfair. However, such findings rarely demonstrate a bias or an apprehension of bias. To the contrary, they may demonstrate a trial judge who is alert to the context within which he or she is being called upon to make a decision. [ 22 ] In Miglin v.

Miglin , 2003 SCC 24 , [2003] 1 S.C.R. 303 , the Court sets out the test for reasonable apprehension of bias: [W]hether a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias[.] [para. 26] [ 23 ] In Miglin , the Court acknowledged that the assessment of whether there is an apprehension of bias is difficult and requires a “careful and thorough examination of the proceeding” and that the “record must be considered in its entirety” (para. 26).

Following a careful review of the record in this case, I would make the following observations with respect to the allegations of bias advanced by Cst. Belong.

(1) Comments by the trial judge to the effect that Ms. Haywood wanted Cst. Belong to stop abusing her and leave her alone [ 24 ] Cst. Belong asserts that the judge’s observations that “[…] all she (Ms. Haywood) wanted was for someone to talk to the Plaintiff with the hopes he would stop abusing her and simply leave her alone […]” demonstrated an apprehension of bias. Cst. Belong asserts there was no evidence before the trial judge that he was abusing his wife. Cst. Haywood testified at trial. Her testimony was relevant to demonstrate the bona fides of the RCMP in pursuing their disciplinary action against Cst.

Belong. She testified to Cst. Belong’s threat to put a gun to her mouth and also to the incident in which he bit her arm. I am of the view there is no merit to Cst. Belong’s assertion there was no evidence of abuse. The evidence was overwhelming that he abused Ms. Haywood. There is no bias demonstrated by a trial judge who hears evidence of abuse and calls it abuse.

(2) Comments by the trial judge that there existed a relationship of domination [ 25 ] Cst. Belong asserts the trial judge demonstrated bias when he interpreted criminal transcripts improperly before him to “depict a relation of domination”. I have already concluded those transcripts were properly admitted to show the state of mind of the RCMP as they made decisions about the potential discipline of Cst. Belong. They were, however, unnecessary for the trial judge to reach a conclusion that Cst. Belong conducted himself in a “dominating” fashion toward his spouse. Cst.

Haywood’s testimony at the trial constituted overwhelming evidence from which the judge could draw the conclusion that there existed a relationship of domination of Cst. Belong over her. That evidence included the biting and the death threats as well as the evidence surrounding Cst. Belong’s request, after having had sex with Cst. Haywood, that she provide a recantation to him in writing. Once again, a trial judge cannot be faulted for identifying a relationship of domination for what it is.

(3) Trial judge’s reference to Ms. Haywood’s fear of reprisals from Cst. Belong

[ 26 ] Cst. Belong says that the trial judge demonstrated a bias against him by suggesting that at one time Ms. Haywood had “fear of … violent reprisals” from him without “any evidentiary foundation”. A careful review of the record shows the trial judge did have an evidentiary foundation upon which he could make such an observation. In the paragraph immediately preceding the impugned comment one finds a reference to Exhibit “A” which was before the trial judge. In that exhibit, Ms.

Haywood says “When I think about it now, I believe I could have stopped giving Gerry oral sex that occasion without fear of any violent reprisals by him”. Ironically, that statement obtained by Cst. Belong’s private investigator, demonstrates a change of opinion by Ms. Haywood. This was, after all, the recantation. Her comment “when I think about it now” within the context of a recantation demonstrates that at one time she did have “fear of violent reprisals”. Cst. Belong’s assertion there was no evidentiary foundation upon which the trial judge could base his inference regarding fear of reprisals is incorrect.

(4) Trial judge’s attribution of “blame” to Cst. Belong [ 27 ] Cst. Belong suggests additional proof of the apprehension of bias demonstrated by the trial judge is found in paragraph 256 of the judgment where, according to him, the judge “attributes blame to the Appellant for defending himself after being wrongfully convicted and serving house arrest unnecessarily”. With respect, I do not agree that the trial judge attributes blame to anyone by his observations in paragraph 256. I will attempt to set the stage.

In the paragraphs immediately preceding paragraph 256 the trial judge observes that following a successful appeal of an interim measure (suspension without pay), Deputy Commissioner Busson of the RCMP advised Cst. Belong to “[…] work to put this behind you and return to the profession you have chosen”. Unfortunately for Cst. Belong, the Deputy Commissioner only had authority to deal with the issue of suspension without pay. She had no authority to resolve the larger disciplinary issue.

That decision was the prerogative and responsibility of the Appropriate Officer (the person in the RCMP Division responsible for proceeding with discipline under the Code of Conduct). It quickly became apparent that those in charge of the disciplinary procedures in New Brunswick intended to proceed in spite of the eventual acquittal on the criminal charges. That prompted the trial judge to say: What will turn out is however not that simple. The Plaintiff’s superiors in the “J” Division “New Brunswick”, namely Commanding Officer T.

Quigley, does [ sic ] not appear to be willing to put everything behind at that point in time and apparently neither is the Plaintiff. [para.256] [ 28 ] I do not interpret the accurate observations of the trial judge as attaching any “blame” to Cst. Belong. The trial judge was stating the obvious. A cursory review of the history of this matter demonstrates that the RCMP in New Brunswick were determined to impose some discipline upon Cst. Belong for his conduct toward Ms. Haywood, regardless of the acquittals. Cst.

Belong, for his part, was willing to contest every effort by the RCMP to impose any discipline whatsoever and, in addition, was willing to take his employer to court where he would accuse his superiors of highly improper conduct. There is not one scintilla of evidence in support of the assertion that the trial judge demonstrated an apprehension of bias against Cst. Belong when he stated that neither the RCMP in New Brunswick, nor Cst. Belong, was willing to “put everything behind [them]”.

(5) Trial judge’s suggestion that Cst. Belong’s damages were self-inflicted [ 29 ] At paragraph 361, the trial judge, in referring to the claim for intentional infliction of mental suffering, makes the statement that “if the Plaintiff (Cst. Belong) experienced such damages, they were simply self-inflicted”. Cst. Belong contends those comments demonstrate a reasonable apprehension of bias against him. However, a reasonable and informed person, aware of all relevant circumstances, would be aware that just prior to making those comments the trial judge had ruled that medical reports offered by Cst.

Belong would not be admitted as evidence. The trial judge, therefore, had limited evidence of mental suffering. Furthermore, by the time the trial judge arrives at paragraph 361 it is evident that none of the claims have been proven to the trial judge’s satisfaction. At that point, the judge had already canvassed the threats Cst. Belong directed toward Ms. Haywood and the matter of the bite marks Cst. Belong left on her arm. Whether one employs the word “self-inflicted” or identifies one as the author of his or her own misfortune, the accuracy of the observation remains. The conclusion that Cst.

Belong is the author of his own misfortune or that his damages were self-inflicted is a reasonable inference that could be drawn from the facts and one which the trial judge was entitled to make (see H.L. v. Canada (Attorney General) , 2005 SCC 25 , [2005] 1 S.C.R. 401; Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235; Kinsella v. New Brunswick Power Distribution and Customer Service Corporation et al. , 2013 NBCA 25 , 402 N.B.R.(2d) 323 at para. 19 ; and Construction B.H.M. Limitée and Brideau v. Caisse populaire de Shippagan Limitée , 2012 NBCA 30 , 386 N.B.R. (2d) 373 at paras 3–5 .

(6) Purported attacks by the trial judge on the integrity of Cst. Belong and his counsel [ 30 ] Cst. Belong contends the trial judge questioned his (Cst. Belong’

s) integrity and that of his counsel as it relates to medical issues. In doing so, Cst. Belong says the judge wrongfully accused him of manipulating the doctors. According to him, those accusations of manipulation and lack of integrity further demonstrate an apprehension of bias on the part of the

trial judge. To properly assess this aspect of the appeal it is necessary to set out a fairly lengthy chronology of events surrounding the first and second scheduled disciplinary hearings. [ 31 ] It is important to recall that the initial criminal and disciplinary investigations into Cst. Belong’s conduct commenced in January 2000. Following the August 8, 2003 acquittals and Cst. Belong’s reinstatement by Deputy Commissioner Busson, Commanding Officer Timothy Quigley informed Cst.

Belong that “An Appropriate Officer’s Representative will contact your Member’s Representative in the near future to discuss the next steps in the formal disciplinary proceedings that were initiated against you”. Very importantly, those disciplinary proceedings were not impacted in any way, nor was it intended they would be, by Deputy Commissioner Busson’s decision. She ruled simply on the assertion that the RCMP in New Brunswick had not properly suspended Cst. Belong without pay. Following his return to work, Cst.

Belong, still facing disciplinary action, communicated via a general e-mail to all personnel at Codiac detachment of the RCMP. In that e-mail he requested the members “continue to maintain their professionalism and refrain from discussing the legal issues that are currently still pending”. At least one of those legal issues was his impending disciplinary hearing. [ 32 ] Between November 14 and December 18, 2003, the parties negotiated with a view to settling the outstanding disciplinary matters. Those negotiations took place with the full participation of Cst. Belong and his counsel.

When the negotiations proved unsuccessful the parties discussed available dates for the adjudication of the disciplinary matters. The discipline hearing was scheduled for February 24, 2004. On January 27, 2004, following the failed settlement negotiations, Cst. Belong’s physician directed he be placed on sick leave and noted he was “unfit for duty”. Interestingly, he had remained fit for duty throughout the negotiations. Following the doctor’s advice of January 27, 2004, Cst. Belong’s lawyer forwarded a letter to the RCMP in which he states in part: We represent Cst.

Belong in a legal action currently before the Court. Notwithstanding that action and the acquittal of our client on several criminal charges, the RCMP continues to harass our client by attempting to retry the same issues in the disguise of a disciplinary proceeding. Due to the unending pressure and irrational attack on our client, he has been placed on stress leave through the good offices of his medical professional. We can only hope that the Force will recognize the damage it has done and continues to do to a valuable member of your organization. [para. 266] [ 33 ] On February 18, 2004 Cst.

Belong’s doctor advised the RCMP that his (Belong’

s) mental state was “very poor” and that he was unable to cope with the added stress of “legal proceedings”. Cst. Belong’s counsel then wrote to the RCMP on February 20, 2004 requesting that the February 24 hearing be adjourned. On February 22, 2004, RCMP Appropriate Officer Representative, Nika Joncas-Bourget, informed the Chair of the Adjudication Board that the Appropriate Officer was contesting the request for adjournment. The adjournment was granted and the matter was rescheduled for June 14, 2004. On February 25, Cst. Belong’s psychiatrist reported that Cst.

Belong “could be able to stand trial in approximately a six-week period […] He should however be reassessed at that time to confirm that he has sufficiently improved cognitively in order to regain competency to stand trial.” Cst. Belong’s lawyer then followed up the medical report with another letter to the RCMP which read in part as follows: It is unbelievable that the harassment of Cst. Belong is being continued in this manner. […] Please cease the constant harassment and punitive behaviors towards Cst. Belong and amend your records accordingly. [para. 277] [ 34 ] The “harassment” referred to by Cst.

Belong’s counsel apparently relates to the Force’s intention to pursue disciplinary charges of disgraceful conduct under its Code of Conduct with respect to the allegations of biting and threatening. Neither the RCMP, nor the trial judge appears to have been influenced by the language employed by Cst. Belong’s counsel. [ 35 ] Interestingly, while Cst. Belong was off duty sick and apparently unable to instruct counsel, the trial judge notes that counsel:

a) Amended the Notice of Action and Statement of Claim on March 5;

b) Responded to a Demand for Particulars by filing a Statement of Particulars;

c) Further amended the Notice of Action and Statement of Claim on March 16, 2004

d) Filed a Notice Requiring Affidavit of Documents on May 12, 2004. [ 36 ] On May 11, counsel for Cst. Belong requested another adjournment. On June 1, 2004, Cst. Belong’s counsel informed the Adjudication Board that the plaintiff cannot provide instructions because of his mental health issues. In response to these requests for adjournment and Cst.

Belong’s apparent ability to provide instructions to counsel in relation to the civil matter, the trial judge observed: In what appears as somewhat ironic, the Plaintiff’s solicitor has nonetheless prepared and filed three pleadings on behalf [two amendments and a demand for particulars] of the Plaintiff in this civil action during the same period where he claims he could not get informed instructions from the Plaintiff. [para. 284] [ 37 ] I find nothing inappropriate in that observation by the trial judge. Although Cst.

Belong suggests such statements demonstrate bias, I am of the view they constitute a reasonable observation based upon the record before the trial judge. [ 38 ] In reply to Cst. Belong’s May 11 request for an adjournment, the Appropriate Officer Representative, Ms. Joncas-Bourget informed the Chair of the Adjudication Board that her client was objecting to the request. The Adjudication Board refused the request for adjournment and conducted the hearing in Cst. Belong’s absence.

The Board’s refusal to grant the adjournment is the sole reason why the RCMP External Review Committee would later quash the Adjudication Board’s conclusion that Cst. Belong was guilty of disgraceful conduct arising from the threats of November, 1999, and the biting in January, 2000. [ 39 ] On June 16, 2004, Ms. Joncas-Bourget informed counsel for Cst. Belong, given that dismissal was a possible outcome, the matter would be adjourned to August 14, 2004, for sanction. On June 25, Cst. Belong’s counsel informed the Chair that since Cst.

Belong could not provide instructions, his “professional” and “ethical” obligations prevented him from attending on August 14. On July 12, 2004, Cst. Belong’s psychiatrist advised that Cst. Belong was then capable of instructing counsel. [ 40 ] It is at this point in the chronology that events unfold which cause the trial judge serious concern. On July 6, 20 and 27, 2004, Sergeant Ken Legge, Cst. Belong’s internal RCMP representative, filed complaints with his superiors about Solicitor Joncas-Bourget’s conduct during the adjudication process. Almost simultaneously, on July 22, 2004, Cst.

Belong’s father filed a complaint about Solicitor Joncas-Bourget, and finally, Cst. Belong’s counsel (not counsel on this appeal) complained in writing about Solicitor Joncas-Bourget directly to the Commissioner of the RCMP on July 28, 2004. Cst. Belong’s counsel accused her of, among other things, “unethical conduct” and indicated that, were she a member of the Law Society of New Brunswick, he would have filed a complaint against her.

Why he did not file a complaint with the appropriate professional society is left unanswered. [ 41 ] Those complaints, all of which were fully available to the trial judge, as was the transcript of the discipline hearing, revealed no justification for complaint against Solicitor Joncas-Bourget. The tactic of complaining about counsel led the trial judge to make the following observation, which constitutes part of Cst.

Belong’s basis for pleading bias: Considering what had transpired since January 2004, this Court finds that the RCMP could reasonably conclude that those three above noted “synchronized complaints” against solicitor Joncas-Bourget were pure attempts on behalf of the Plaintiff at intimidating Solicitor Nika Joncas-Bourget. [para. 297] [ 42 ] Whether there was an attempt to intimidate Solicitor Jonas-Bourget was not an issue before the trial judge.

While his comments were gratuitous, they were not in my view inappropriate and, to the reasonable bystander, fully informed of all the circumstances, do not demonstrate an apprehension of bias. In my view, the trial judge was merely trying to demonstrate that what should have been a straightforward, internal disciplinary process, arising from serious threats and infantile biting by a member of the RCMP was constantly being derailed for reasons that, in his view, were suspect. Based upon the record before him, that was not an unreasonable conclusion.

Furthermore, such a finding constitutes part of the context within which he was required to judge very serious allegations brought by Cst. Belong against the RCMP and its senior officers.

(7) Trial judge’s reference to the Adjudication Board’s decision [ 43 ] Cst. Belong contends the trial judge demonstrates bias by quoting extensively from, and apparently “endorsing”, the Adjudication Board’s decision which was eventually overturned by the RCMP’s External Review Committee. Recall that that appeal to the Committee was allowed because the Board had proceeded in Cst. Belong’s absence.

I have already indicated that given the nature of the allegations made against the RCMP and its superior officers, the trial judge was required to consider what might otherwise be considered hearsay or extraneous evidence, in order to determine what information was available to the RCMP at the time the impugned decisions were made. There would be no other manner by which the trial judge could determine the intention of the RCMP personnel. I am of the view there is no merit to this allegation of apprehension of bias.

The Adjudication Board’s decision, albeit hearsay, constituted part of the information available to the RCMP as they assessed whether to continue with disciplinary measures.

(8) Observation by the trial judge that Cst. Belong accused the RCMP of “sins” while they were merely trying to do their job [ 44 ] At one point in his decision the trial judge refers to Cst. Belong’s reaction to RCMP officers who had “all this time just tried to do their job but ended up being accused of all sins by the Plaintiff”. Cst. Belong says the “sin” characterization demonstrates bias against him. Any analysis of this ground of appeal is difficult because it requires a parsing and dicing of the language used by the trial judge.

While I may have chosen different words, the trial judge’s words must be considered within the context of the situation before him and his own use of language. Regardless of the language used, his conclusions are jurisprudentially sound. The trial judge concluded, which was totally within his jurisdiction, that the RCMP and its superiors were simply trying to do their job without any malice or tortious conduct toward Cst. Belong. The twice amended Statement of Claim and the intemperate letters from Cst.

Belong’s counsel demonstrate the “sins” to which the trial judge was obviously making reference, namely: negligence, abuse of process, abuse of statutory powers, conspiracy, intentional infliction of mental suffering, high-handed and oppressive conduct, harassment, and others. The statement appears to be an accurate characterization of the facts before the trial judge.

(9) Trial judge’s conclusions regarding Cst. Belong’s personal life, use of transcript from criminal trial and credibility findings [ 45 ] Cst. Belong, in advancing his position that there was a reasonable apprehension of bias against his interests, takes issue with the trial judge’s conclusions about his character and family life, disagrees with the negative comparison of his testimony with that of Cst. Haywood and generally disagrees with the use of his (Cst. Belong’

s) testimony at the criminal trial. [ 46 ] First, I would note at the very outset that Cst. Belong’s testimony at his criminal trial was admissible at the civil trial. That testimony was given by him, under oath, in another judicial proceeding. In R. v. Starr , 2000 SCC 40 , [2000] 2 S.C.R. 144 the Court noted that: […] I would note that evidence falling within a traditional exception is presumptively admissible. These exceptions traditionally incorporate an inherent reliability component.

For example, testimony in former proceedings is admitted, at least in part, because many of the traditional dangers associated with hearsay are not present.

As pointed out in Sopinka, Lederman and Bryant, supra, at pp. 278-79: ... a statement which was earlier made under oath, subjected to cross-examination and admitted as testimony at a former proceeding is received in a subsequent trial because the dangers underlying hearsay evidence are absent. [para.212] [ 47 ] Given that the matters investigated by the RCMP constituted matters of domestic violence, it is understandable why the trial judge made observations about Cst. Belong’s character and family life.

The trial judge heard testimony, weighed that testimony, applied the law to the facts, and made the findings he considered necessary. This court owes deference to those findings of fact and inferences. (see H.L. v. Canada (Attorney General) ; Housen v Nikolaisen ; Kinsella v. New Brunswick Power Distribution and Customer Service Corporation et al. ; and Construction B.H.M. Limitée and Brideau v. Caisse populaire de Shippagan Limitée , supra ). I am of the view the findings and inferences interpreted by Cst.

Belong as constituting an “apprehension of bias” were merely the product of the legitimate reasoning process of the trial judge.

(10) Summary as it relates to the allegation of bias

[ 48 ] While I have individually assessed each of Cst. Belong’s contentions of apprehension of bias, they should, in my view, be assessed collectively in order to determine whether the accumulation of concerns demonstrates a reasonable apprehension of bias. Many of the findings of the trial judge are less than flattering toward Cst. Belong and, at times, reflect poorly on his then counsel’s tactics and use of language. However, counsel decided that an aggressive approach, including embarrassing opposing counsel, would further his client’s interest.

While such an approach appears to have had some measure of success with respect to the disciplinary matters (formal discipline proceedings were never re-launched after the External Review Committee decision) it was less effective when alleging the RCMP was guilty of tortious conduct in the civil action. [ 49 ] As noted by Robertson J.A. in Rothesay Residents Association Inc. v. Rothesay Heritage Preservation & Review Board et al. , 2006 NBCA 61 , 299 N.B.R. (2d) 369 at para. 18 , and recently affirmed in Lambert v.

Lacey-House , 2013 NBCA 48 , 406 N.B.R. (2d) 346 at para. 17 , the threshold for finding a reasonable apprehension of bias is high. In addition, judges benefit from a strong presumption of impartiality. In my view, Cst. Belong has not met the high onus that was upon him and has not rebutted the presumption. It is my opinion that a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would not conclude the trial judge’s conduct gave rise to a reasonable apprehension of bias. D. Admission of Medical Reports [ 50 ] At trial, Cst.

Belong sought to admit medical reports from various physicians who had treated him. None of those physicians was available to testify. The RCMP objected to the admission of the reports on the grounds that they constituted inadmissible hearsay and opinion evidence without the opportunity for cross-examination. The trial judge refused to admit the reports. [ 51 ] Cst. Belong contends the reports should have been admitted as admissible hearsay given their reliability, the fact the RCMP had used some of the reports to justify Cst. Belong’s sick leave and the fact the RCMP had referred Cst.

Belong to some of the physicians. With respect, none of these factors alters the nature of the reports. They contain inadmissible hearsay and opinion evidence. The trial judge properly ruled they were inadmissible: R. v. Khelawon , 2006 SCC 57 , [2006] 2 S.C.R. 787 . E. Improper assessment of the role of Cst. Colleen Bevington [ 52 ] Cst. Belong raises, as an independent ground of appeal, that the trial judge erred in his assessment of the role played by Cst. Colleen Bevington. With respect, I am of the view this ground of appeal lacks merit.

Based upon the facts and inferences made by the trial judge regarding Cst. Bevington, some of which are set out in paragraphs 6 and 7 above, I would make the following observations. First, Cst. Bevington was never the officer assigned to investigate this matter. It was not “her” investigation as contended by Cst. Belong. The investigation was conducted throughout by Cst. Laturnus. Second, Cst. Bevington was a close friend and confidante of Ms. Haywood who encouraged her (Ms. Haywood) to report the apparent criminal offences to Cst. Belong’s supervisor.

These factors were all taken into consideration by the trial judge when he drew selected adverse inferences against the RCMP for its failure to call Cst. Bevington as a witness. Third, there is no property in a witness. In the event Cst. Belong considered Cst. Bevington’s evidence important to his case, he could have called her. Fourth, the trial judge’s findings of fact disclose no tortious conduct on the part of Cst. Bevington. Finally, in my view, the adverse inferences drawn by the trial judge against the RCMP arising from the failure to call Cst. Bevington demonstrate an assessment of Cst.

Bevington’s role that is overly favourable to Cst. Belong’s interest. I would note, however, there is no Notice of Contention filed in relation to those inferences. IV. Conclusion [ 53 ] Given the grounds of appeal and the sub-sets to the ground based upon bias, this Court was called upon to consider thirteen assertions of error. While some grounds dealt with pure questions of law, the majority dealt with factual findings and inferences made by the trial judge which were clearly within his domain, absent palpable and overriding error. For the reasons set out above, I would dismiss the appeal.

In addition, I would order costs of $20,000, being 40% of the amount fixed at trial, plus disbursements.

B. RICHARD BELL, J.A WE CONCUR: ALEXANDRE DESCHÊNES, J.A. J.T. ROBERTSON, J.A.