Corey Heffernan Appellant (Applicant) v. The Saskatchewan Police Commission, 2020 SKCA 119

Court of Appeal for Saskatchewan Docket: CACV3602 Citation: Heffernan v Saskatchewan (Police Commission) , 2020 SKCA 119 Date: 2020-10-23 Between: Corey Heffernan Appellant (Applicant) And The Saskatchewan Police Commission and The Chief of Police of the Prince Albert Police Service Respondents (Respondents) Before: Whitmore, Tholl and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Whitmore In concurrence: The Honourable Mr. Justice Tholl The Honourable Mr.

Justice Kalmakoff On appeal from: 2020 SKQB 65 , Prince Albert Appeal heard: September 17, 2020 Counsel: Peter A. Abrametz for the Appellant, Corey Heffernan Charita Ohashi for the Respondent, the Saskatchewan Police Commission Zach Carter for the Respondent, the Chief of Police of the Prince Albert Police Service Whitmore J.A. I.

Introduction [ 1 ] The appellant, Corey Heffernan, appeals the decision of the Court of Queen’s Bench in Chambers ( Heffernan v Saskatchewan Police Commission , 2020 SKQB 65 [ Chambers Decision ]) dismissing his application for judicial review of a decision of the Saskatchewan Police Commission [Commission] ( Special Constable Corey Heffernan v Chief of Police of the Prince Albert Police Service (18 June 2019 and 25 June 2019) Regina, Steve Connelly, Q.C. [ Commission Decision ]).

The Commission had dismissed the appellant’s appeal of his conviction for a disciplinary infraction after a hearing held pursuant to The Police Act, 1990 , SS 1990-91, c P- 15.01 [ Police Act ] ( Prince Albert Police Service v Special Constable Corey Heffernan (23 November 2018) Hearing Officer: Ronni Nordal [ Hearing Decision ]). [ 2 ] The appellant also seeks to introduce fresh evidence. II.

Background [ 3 ] The appellant was employed as a Special Constable with the Prince Albert Police Service until December 27, 2018, when he was dismissed. [ 4 ] In June 2016, the appellant was charged with three disciplinary offences pursuant to the Police Act .

The first two charges related to the alleged theft of a puppy from the Prince Albert SPCA [SPCA] and the third charge related to allegations that the appellant had made a false, misleading or inaccurate written entry into an official document or record. [ 5 ] A hearing officer was appointed and the disciplinary hearing took place between October 1 and 4, 2018. On November 23, 2018, the Hearing Decision was issued, in which the hearing officer found the appellant not guilty of the first two charges and guilty of the third charge.

On December 21, 2018, the appellant was given a reprimand by the hearing officer following a joint submission [ Penalty Decision ]. [ 6 ] On that same day, the appellant applied for permission to appeal the Penalty Decision to the Commission pursuant to ss. 59 and 69 of the Police Act . [ 7 ] On December 27, 2018, the appellant was dismissed from his employment for unrelated operational reasons. [ 8 ] On June 18, 2019, with a subsequent addendum on June 25, 2019, the Commission dismissed the appellant’s application on the bases that it lacked jurisdiction and that the issue was moot since the appellant was no longer an employee of the Prince Albert Police

Service. The appellant then applied to the Court of Queen’s Bench to review the Commission Decision . [ 9 ] On March 10, 2020, a judge of the Court of Queen’s Bench in Chambers decided that the Commission Decision was reasonable. The appellant now asks this Court to overturn the Chambers Decision , originally saying the Chambers judge erred in applying the standard of review of reasonableness to the Commission Decision , and that the appropriate standard of review is that of correctness.

At the hearing of this appeal, however, the appellant’s counsel acknowledged that the Chambers judge did not err in applying the standard of reasonableness to the Commission Decision but maintained that the decision was not reasonable. III. Jurisdiction and Standard of Review [ 10 ] This Court has jurisdiction to determine this appeal pursuant to ss. 7(2) (

a) and 10 of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 . [ 11 ] The role of this Court is to ask itself whether, in making his decision, the Chambers judge identified the appropriate standard of review and applied it correctly. See: Dr.

Q v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at para 43 , [2003] 1 SCR 226. [ 12 ] Under this approach, this Court may step into the shoes of the Chambers judge in reviewing the Commission Decision with the result that this Court’s focus is, in effect, on the Commission Decision . [ 13 ] As the appellant properly concedes, the standard of review to be applied to the Commission Decision is that of reasonableness as established in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , 441 DLR (4th) 1 [ Vavilov ].

The remaining issue, therefore, is whether the Chambers judge erred in finding the Commission Decision reasonable. [ 14 ] In support of his submissions on this issue, the appellant seeks to introduce fresh evidence. A.

Fresh evidence [ 15 ] The appellant seeks to introduce three affidavits containing evidence which he submits exonerates him of the disciplinary conviction. [ 16 ] The appellant claims that on March 12, 2019, he discovered a hard copy of the electronic SPCA records that the Chief of Police of the Prince Albert Police Service (the respondent) had, at the disciplinary hearing, argued had never existed. According to the appellant, these records will prove his innocence.

He deposes that he found these records when he was at home reviewing the contents of the filing cabinet that he had when he was employed by the Prince Albert Police Service, and which he had removed from the Prince Albert Police Service on December 27, 2018, when he was terminated. He says that these records were deleted from the SPCA computer on October 25, 2016, at the request of a Prince Albert Police Service employee. [ 17 ] The appellant also seeks to introduce the affidavit of Karen Fairbairn dated April 3, 2020. In this affidavit, Ms.

Fairbairn deposes that she was employed with the Prince Albert SPCA in June 2016 and was subpoenaed to be a witness at the appellant’s disciplinary hearing. She deposes that she believes she wrote up the paper intake form and that she knew another SPCA employee, Ashley Bober, had thrown away the form on June 2, 2016, but did not testify about this. [ 18 ] Finally, the appellant seeks to introduce the evidence of Leanne Maloney dated April 6, 2020. Ms. Maloney deposes she was an employee of the Prince Albert SPCA on June 2, 2016, and was subpoenaed as a witness at the appellant’s disciplinary hearing.

She states in her affidavit, like Ms. Fairbairn’s statement, that she filed a complaint at the instigation of the executive director of the SPCA and felt pressured into doing so. She deposes that her complaint was based on information she received from her fellow employees at the SPCA and that she was advised there was no electronic copy of the appellant’s interaction with the SPCA in June 2016 and did not check this fact out. She also deposes she was told to delete the electronic form in question on October 25, 2016. [ 19 ] The hearing officer found: 211.

During that first attendance at the SPCA (which ended at [14:28]) the decision to adopt the puppy was made and the started Intake Form was discarded. I make this determination based on Special Constable Heffernan’s Administrative Statement which states that at the time the Intake Form was discarded the puppy was still being held by someone, though he did not recall by who at the time of making the statement, but his evidence at the hearing was that the puppy was left in the arms of Karen Fairbairn.

I acknowledge that Ashlee Bober [ sic ] denies having had possession of the Intake Form and therefore denies having discarded the same. However, I do not believe I need to make any finding regarding who, in fact, discarded the Intake Form as based on Special Constable Heffernan’s own evidence he believed the Intake Form was discarded by [14:28] on June 2, 2018 when he cleared the call in MDS. … 223. By 14:27:25 according to Special Constable Heffernan himself, the Intake Form he states was filled out had been discarded.

Special Constable Heffernan had called Staff Sergeant Borsos indicating that he was adopting a puppy at 14:16. I find that by 14:27:25 Special Constable Heffernan had made arrangements to return at the end of his shift and pick up the puppy and had formed the intention of adopting the puppy. 224. I find that Special Constable Heffernan’s entry in the dispatch ticket, which is an official document or record, was misleading and inaccurate as it did not refer to the paper work [ sic ] (the Intake Form) having been discarded, nor did it refer to the fact he had arranged to

adopt the puppy. 225. With respect to the charge of Discreditable Conduct contrary to ss. 36(a)(ii) of The Municipal Police Discipline Regulations[,1991, RRS c P-15.01], I find Special Constable Heffernan guilty. [20] In R v Palmer, (SCC), [1980] 1 SCR 759 at 775, the Supreme Court set out the test for the admission of freshevidence:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [ (SCC), [1964]SCR 484].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. [21] The proposed evidence does not satisfy the criterion that it could not have been discovered by the exercise of due diligence.The appellant had the intake form in his own possession and did not notice it until March 12, 2019. If he had simply looked in his filingcabinet earlier, it could have been discovered. [22] As to the second criterion, I question whether the proposed evidence is relevant.

The issue before this Court is whether theChambers judge correctly applied the standard of review of reasonableness to the Commission Decision. The proposed evidence hasnothing to do with whether the Commission’s decision that it lacked jurisdiction and that the issue was moot because the appellant was nolonger an employee of the Prince Albert Police Service was reasonable. [23] Third, the evidence of Ms. Maloney and Ms. Fairbairn is somewhat speculative.

However, in light of my conclusions on theother three criteria, it is not necessary to determine the credibility of the proposed evidence. [24] Finally, the proposed evidence cannot reasonably be expected, when taken with the other evidence, to have affected the result.The Commission based its decision on its

interpretation of its jurisdiction and on mootness. The proposed evidence does not deal withthose matters and could not have affected the Commission’s decision. [25] I note in passing that the Chambers judge had similar material before him in the form of an affidavit of the appellant swornMarch 14, 2019. The Chambers judge referred to the affidavit as follows: [9] The Court received a Certified Record of Proceedings [Record], as required by Rule 3-58 of The Queen’s Bench Rules.

TheRecord includes, among other things, the decision and addendum under review, as well as the record of proceedings before the hearingofficer. It also includes correspondence between the parties and either the then chairperson of the Commission or its Executive Director. Itdoes not include the written submissions filed with respect to the applicant’s request for permission to appeal. Curiously, the Record alsoincludes an affidavit of the applicant, sworn March 14, 2019.

The purpose of the affidavit is not particularly clear, and I will address itscontents later under this heading. … [15] Further to the applicant’s affidavit, it is a curious bit of evidence. At the outset, I note that it includes a number of unhelpfulpassages. These passages contain argument, hearsay and a certain clearly irrelevant references. Setting the worst of those passages aside,the affidavit also describes the applicant’s position that, at the hearing, he had proved the existence of the paperwork which the hearingofficer found he had not completed.

In particular, he exhibited a copy of a form that he asserts establishes his innocence. He goes on to saythat the electronic version of the form was destroyed on October 25, 2016. The applicant also alleges wrongful conduct and lack of pre-hearing disclosure on the part of the [Prince Albert Police Service].

The affidavit does not, however, contain any explanation from theapplicant as to why the exhibited form could not have been presented in evidence before the hearing officer. [26] To the extent the affidavits are similar, they establish that the appellant’s evidence is already part of the record and that theappellant is simply using the fresh evidence application to expand his argument before the Chambers judge. [27] The proposed fresh evidence does not satisfy the test for its admission. The application for the admission of the proposed freshevidence is dismissed. B.

Reasonableness [28] I will now turn to whether the Chambers judge correctly applied the standard of reasonableness to the Commission Decision. [29] To put it another way, the question to be considered is whether the Commission acted reasonably in deciding to refusepermission for the appellant to appeal on the basis that it had no jurisdiction to entertain his appeal given that he was no longer a SpecialConstable of the Prince Albert Police Service. [30] The root issue is whether the appellant was a “member” under the Police Act for the purposes of appealing to the Commission. [31]

Section 2(k)(

v) of the Police Act defines “member” to include a “special constable”. [32] Section 59(3) of the Police Act sets out the right to appeal a decision of a hearing officer, stating that a member may apply tothe Commission for permission to appeal the decision:

59(3) Within 30 days after the day on which a member, chief, board or complainant is given notice of a decision of a hearing officerpursuant to

section 58, the member, chief, board or complainant may apply to the commission for permission to appeal that decision to thecommission pursuant to

section 69. [33]

Section 69 of the Police Act is as follows: 69(1) A person entitled to apply to the commission for permission to appeal shall serve on the commission a notice of application forpermission to appeal all or part of the decision to the commission.

(2) The investigator may apply to the commission for permission to appeal a decision pursuant to this Part and, where the investigatorapplies, this

section applies to that application.

(3) An application for permission to appeal is to: (

a) be in writing; (

b) be in the form prescribed in the regulations; and (

c) set out the reasons for requesting an appeal.

(4) The commission shall grant permission to appeal where: (

a) the investigator seeks permission to appeal on the investigator's own behalf or on behalf of a complainant; (

b) the decision affecting the member or chief seeking an appeal imposes: (

i) dismissal; or (ii) a demotion in rank; (

c) after considering: (

i) the notice of application; (ii) the record; and (iii) any other information the commission considers necessary; the commission has concerns regarding the thoroughness or fairness of theinvestigation or hearing; (

d) in the opinion of the commission, the disciplinary action imposed may not be comparable to disciplinary action imposed with respect tosimilar proceedings; or (

e) there are any other grounds that the commission considers appropriate.

(5) An application for permission to appeal may be heard and disposed of pursuant to this

section by the chairperson of the commission orby a commissioner designated by the chairperson for that purpose. (Emphasis added) [34] In interpreting statutes, Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014) [Sullivan]advises: §2.6 The modern principle says that the words of a legislative text must be read in their ordinary sense harmoniously with the schemeand objects of the Act and the intention of the legislature. … (Emphasis in original) See also: Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 at paras 26–30, [2002] 2 SCR 559; and Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at 21. [35] The Legislation Act, SS 2019, c L-10.2, s. 2-10(1) codifies the statement from Sullivan quoted above, and s. 2-10(2) provides:“Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that best ensuresthe attainment of its objects.” [36] As the Act does not define person, ss. 59 and 69 must be read together in order to give meaning to the wording in s. 69 that a“person” is entitled to apply to the Commission for permission to appeal.

The Commission found that a “person” in s. 69, is, in light ofs. 59(3), a “member” of the police service. [37] To interpret the meaning of “person” in s. 69, this Court should look at the Police Act as a whole and attempt to find aninterpretation that is in harmony with the entire legislative scheme (Verdun v Toronto-Dominion Bank, (SCC), [1996] 3SCR 550 at para 22).

If, as stated in Peel (Police) v Ontario (Special Investigations Unit), 2012 ONCA 292 at para 26, 110 OR (3d) 536,“constituent elements of a legislative scheme are meant to work together logically”, then a “person entitled to apply to the commission forpermission to appeal” in s. 69 must, in light of s. 59(3), be a “member” pursuant to the Police Act. [38] The Commission held that, since the appellant’s employment with the Prince Albert Police Service had been terminated, he

was not a “member” under the Police Act and the jurisdiction conferred upon it under the Police Act had come to an end. It is important tonote that the appellant was dismissed for reasons unrelated to his disciplinary offence and he did not appeal his dismissal. Therefore, hecannot turn to s. 69(4) to require the Commission to grant him permission to appeal. Section 69(4) states that the Commission shall grantpermission to appeal where the decision affecting the member seeking an appeal imposes dismissal.

However, s. 71(2) states that “where amember has been dismissed, the commission may order that the member be reinstated”. [39] Thus, the Commission Decision is not entirely consistent with other sections of the Police Act: how can the Commission orderreinstatement under s. 71(2) if its jurisdiction ends the moment a member is dismissed? [40] The only way to resolve this internal inconsistency is to interpret “member” so as to include someone who was dismissed as aresult of a disciplinary hearing, but not someone who was dismissed for other reasons. This is not an

interpretation that was articulated inthe Commission Decision and neither party acknowledges this inconsistency. Rather, in the view of the Commission and that of therespondent, “when the [appellant’s] employment with the Prince Albert Police Service ended, the jurisdiction of the Saskatchewan PoliceCommission to hear his appeal ended” (Commission Decision at para 15). [41] The Commission relied on the Supreme Court’s decision in Maurice v Priel, (SCC), [1989] 1 SCR 1023[Maurice].

In that case, the respondent was admitted as a barrister and solicitor by the Law Society of Saskatchewan [Law Society] in1967 and practiced law in Saskatchewan until 1981, when he was appointed a judge of the Court of Queen’s Bench for Saskatchewan.Several years after his appointment, the Law Society received a complaint regarding his conduct while he was a practicing lawyer, and hewas eventually charged with four breaches of professional misconduct.

Prior to the formal hearing of the charges, the respondent appliedto the Court of Appeal for Saskatchewan for an order prohibiting the Hearing Committee from proceeding. Chief Justice Bayda (as hethen was) for the majority found the Law Society did not have jurisdiction to proceed against the respondent because the respondent wasnot a member of the Law Society.

Upon appeal to the Supreme Court of Canada, the Supreme Court dismissed the appeal on the samebasis, namely that the respondent was not a member of the Law Society. [42] The Commission observed Maurice is indistinguishable from the present case except for the fact that the proposed proceedingin Maurice was not under the Police Act and no discipline proceedings had yet been commenced when Maurice J. ceased to be a memberof the Law Society (Commission Decision at para 10).

As the Commission correctly noted, in the present case, the disciplinary hearingwas completed while the appellant was still a member of the Prince Albert Police Service and, in fact, the application for permission toappeal was filed while he was still a member.

It was only when the Commission considered the matter and issued its decision that theappellant was no longer employed with the Prince Albert Police Service. [43] The change in the appellant’s employment status interrupted a process that was already in existence, and the Commission foundthat this did not change the fact that the Commission did not have jurisdiction to proceed with the appeal. In doing so, the Commissionrelied on the Ontario Court of Appeal decision in Ontario (Provincial Police) v Rutigliano, 2012 ONCA 484 [Rutigliano].

In that case, apolice officer faced allegations of discreditable conduct pursuant to the Ontario Police Services Act, RSO 1990, c P.15 [Ontario PSA]. Anadjudicator, who had previously conducted disciplinary hearings involving the police officer, was appointed. The police officer brought anapplication for judicial review on the basis that the adjudicator had already formed an opinion which raised a reasonable apprehension ofbias. The application was granted, and the Ontario Provincial Police Commissioner appealed. Prior to the hearing of the appeal,Mr. Rutigliano retired from the police service.

The appeal was dismissed as moot. [44] The Commission observed that, in Rutigliano, the Ontario Court of Appeal held that “there was no jurisdiction to proceedfurther with the hearing since [Mr. Rutigliano] was no longer a member of a police force” (Commission Decision at para 11).

TheCommission then went on to find that, in the present case, “the absence of jurisdiction for the Saskatchewan Police Commission to hearthe [appellant’s] appeal renders this application moot” (at para 16). [45] The Commission ignored the fact that, in Rutigliano, s. 90(1) of the Ontario PSA states that “no further action shall be takenunder this

part in respect of the complaint after the date of resignation”. In light of that section, the Ontario Court of Appeal found that,since Mr. Rutigliano had retired, the disciplinary proceedings against him could not proceed.

Using the test laid out in Borowski v Canada(Attorney General), (SCC), [1989] 1 SCR 342 [Borowski], the Ontario Court of Appeal concluded that the issues weremoot and declined to exercise its jurisdiction to hear the appeal. [46] These are important distinctions between this case and Rutigliano that are not addressed in the Commission Decision nor by therespondents, and they might be sufficient to reverse the Commission Decision if the standard of review to be applied were correctness. Butthe question under a reasonableness review is not whether this Court would have decided differently.

As the Supreme Court said inVavilov: [83] It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both thedecision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as ageneral rule, to refrain from deciding the issue themselves.

Accordingly, a court applying the reasonableness standard does not ask whatdecision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusionsthat would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem.The Federal Court of Appeal noted in Delios v.

Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, “as reviewing judges, wedo not make our own yardstick and then use that yardstick to measure what the administrator did”: at para. 28; see also [Law Society ofNew Brunswick v Ryan, 2003 SCC 20, [2003] 1 SCR 247], at paras. 50-51.

Instead, the reviewing court must consider only whether thedecision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led —was unreasonable. … [86] … Reasonableness, according to Dunsmuir, “is concerned mostly with the existence of justification, transparency andintelligibility within the decision-making process”, as well as “with whether the decision falls within a range of possible, acceptableoutcomes which are defensible in respect of the facts and law” ….

(Emphasis in original) [47] It is also clear from Vavilov that the reasonableness standard is not a carte blanche: [68] Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and thereforedoes not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutoryscheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even where thereasonableness standard is applied in reviewing a decision maker’s

interpretation of its authority, precise or narrow statutory language willnecessarily limit the number of reasonable

interpretations open to the decision maker — perhaps limiting it one [sic]. … (Emphasis in original) [48] As a result of the guidelines contained in Vavilov, I conclude that the decision of the Commission, while in some ways notperfect, was not unreasonable.

See also: Epp v Krahn (1977), (MB CA), 77 DLR (3d) 469 (Man CA); Ross v BCPsychological Assn., (BC CA), 19 BCLR (2d) 145 (CA); College of Nurses of Ontario v Dumchin, 2016 ONSC 626,130 OR (3d) 602; Odim v The College of Physicians and Surgeons of Manitoba, 2003 MBQB 118, [2004] 2 WWR 370; andAbouabdallah v College of Dental Surgeons of Saskatchewan, 2011 SKCA 99, 341 DLR (4th) 284. IV. Conclusion [49] The appeal is dismissed [50] The Chief of Police of the Prince Albert Police Service shall have his costs in the usual way.

No costs are awarded to theSaskatchewan Police Commission. “Whitmore J.A.” Whitmore J.A.I concur. “Tholl J.A.” Tholl J.A.I concur. “Kalmakoff J.A.” Kalmakoff J.A.