Date: 20010627
Docket: T-1452-00
Neutral Citation: 2001 FCT 710
BETWEEN:
GORDON E. RENDELL
Applicant
AND:
THE ATTORNEY GENERAL OF CANADA
Respondent
[1] This is an application for judicial review of a decision of the Commissioner of the Royal Canadian Mounted Police dated June 21, 2000, wherein the Commissioner ordered the applicant to resign within fourteen days of receiving the decision, failing which he would be dismissed from the Force.
[2] The facts leading up to this application are as follows. Constable Rendell joined the RCMP in 1991. On the evening of November 25, 1997, he attended a transfer party along with other members of his unit, including his common law wife Constable Laurie Flewelling. During the evening, he behaved towards her in a fashion which later resulted in him being charged with three counts of misconduct under the Royal Canadian Mounted Police Act ("RCMP Act"). The applicant was also subsequently convicted of assault under the Criminal Code.
[3] As a result of this behaviour and the ensuing charges, Constable Rendell appeared at a disciplinary hearing before an Adjudication Board in accordance with the disciplinary procedures set out in the provisions of Part IV of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10. He admitted all three allegations of disgraceful behaviour set out in the Notice of Disciplinary Hearing and the parties submitted an Agreed Statement of Fact setting out the circumstances of the incidents which occurred during the period in question. By decision dated June 4, 1999, the Adjudication Board directed that Constable Rendell resign from the RCMP within fourteen days or be dismissed and in addition, imposed a reprimand and a fine of three days pay.
[4] The applicant appealed the decision of the Board to the Commissioner of the RCMP pursuant to section 45.14 of the Act. The appeal was referred by the Commissioner to the External Review Committee for review and recommendation. In its report dated April 26, 1999, the Committee recommended to the Commissioner that the applicant's appeal be allowed and the Board's decision to dismiss him be set aside and varied to a fine of ten days pay and professional counselling.
[5] In a twenty-four page decision dated June 21, 2001, the Commissioner, after an extensive review of the facts, the Adjudication Board's decision and the report and recommendation of the Committee, dismissed the applicant's appeal and upheld the decision of the Board. The decision states as follows at pp. 23-24:
On June 14, 2000, I carefully examined this case. I have given full consideration to all aspects of the appeal, and I appreciate the thorough analysis of the External Review Committee in formulating their findings and recommendations.
My conclusion is, however, that too much emphasis was placed on the state of mind of Cst. Rendell and not enough emphasis was placed on the impact of his action on the victim, on the integrity of the organization and on the societal expectations around domestic violence.
I find Cst. Rendell's credibility to be of little value in terms of establishing the appropriate sanction. The real issue is the impact of his acts. As for the assessment of his history, again, the real issue is his actions with Cst. Flewelling and not whether previous behaviour was "tantrum-like" or really violent. The evening in question showed a pattern. There were several incidents involving emotional, psychological and physical violence.
The number one issue for me as the steward of meeting public and organizational expectations in a fair way is to simply ask whether citizens would expect their police officers to remain police officers after being convicted criminally of assault. My question is directed to assaults in domestic situations in the kind of circumstances which the evidence established before the Board in this case to have included a pattern of physical, emotional and psychological controlling behaviour on the part of Cst. Rendell. The answer is unequivocally "no" in my considered opinion.
We have, in the RCMP, a zero tolerance prosecution policy in domestic violence investigations which is supported by Crown prosecutors across the country. We must send a strong message that this kind of behaviour will not be tolerated., particularly when perpetrated by members of the RCMP. I have previously articulated my expectations with respect to the organization in this regard. Domestic violence is a scourge in our society. As one of the organizations responsible for effective responses against it. We would be remiss if there was any impression left that we deal with it internally in any way but with the utmost severity.
I agree that rehabilitation is one of the hallmarks of our discipline process in dealing with Code of Conduct issues, but deterrence and a very strong commitment towards the elimination of domestic violence must also be a major consideration in determining an appropriate sanction. I believe each case must be addressed on its own merits and both mitigating and aggravating factors must be given due consideration. In this case, the aggravating factors far outweigh the mitigating circumstances. This was a prolonged series of attacks, not just one spur of the moment lapse of judgment. The Appellant abused the victim physically, emotionally and psychologically over a period of time, including a threat to kill her.
The Committee referred to recent cases where less severe sanctions were imposed. While I am unaware of the full circumstances of those cases, I will say that if the aggravating factors were as severe as in this case, then the less severe sanction imposed was inappropriate and insufficient.
I have before me a set of circumstances which justify the severest of sanctions under the RCMP Act, that is, dismissal. I, therefore, order that the Appellant resign within 14 days of receiving this decision, and if he declines to do so voluntarily, he is to be dismissed at that time.
[6] The applicant now seeks to have the Commissioner's decision set aside on the grounds that he erred in law by refusing to follow the principle of parity of sanctions; that it was patently unreasonable for the Commissioner to find that the applicant's conduct constituted a "pattern of violence"; and, that he gave undue weight to public expectations when he assessed the sanction to be imposed.
[7] I am dismissing the application for the following reasons.
[8] The applicant maintains that in previous cases involving members convicted of domestic assault, the sanction imposed has been less severe than the sanction of dismissal imposed on him by the Commissioner. He argues that this represents an attempt to change the rules after the fact, constitutes discrimination against him and is an error of law.
[9] I do not agree. On the contrary, the Adjudication Board decisions on which the applicant relies in support of this argument make it entirely clear that one of the possible sanctions against members who commit domestic violence is dismissal from the RCMP. That it was not imposed in those cases is because, unlike Constable Rendell's case, the Board found that there were mitigating circumstances which warranted a less severe sanction.
[10] For example, in the case indexed as 1 A.D. (3d) 22, the member, while drunk, had punched his wife causing a black eye. At the hearing before the Adjudication Board the Appropriate Officer only sought a sanction in the nature of a reprimand, a forfeiture of ten days pay and continued treatment for alcohol abuse. The Board, however, was unequivocal that dismissal was a sanction which had to be considered.
The board wishes to emphasize that spousal abuse is a source of indignation in our society, and this is well established in Force policy. In our opinion, the incident of violence by Cst. A against his wife is very serious. Cst. A was intoxicated. He had an argument with his wife resulting in an assault which was borderline to causing bodily harm. The board feels that this assault is definitely at the higher end of the spectrum of sanction. In such a case, dismissal from the Force should be considered by the board.
As members of the Force, we are expected to act in an exemplary manner and at all times our conduct must be beyond reproach. The board directs Cst. A.'s attention to the fact that the nature of our profession, as peace officers, demands that we set ourselves a much higher standard of conduct than is expected of a member of the general public, and that we be willing to live by a much stricter code of self discipline. We must be mindful that our everyday actions, both on the job and in private life, are judged by the public in our role as peace officers.
(emphasis added)
[11] Likewise, in the case indexed as 21 A.D. (2d) 114, the member had forced his way into the residence of his estranged wife and, by locking her arm behind her, forced her around the house. He ripped the telephone out of the wall when she attempted to call the police. He pointed his service revolver at his head and was found guilty of criminal assault. Once again the Adjudication Board's decision was clear that dismissal would certainly have been a possible sanction, but for the existence of mitigating factors. The Board wrote:
Notwithstanding the member's positive attitude towards this misconduct and his efforts at rehabilitation, the misconduct is still very serious. Domestic violence committed by members will not be condoned, and the safe handling of firearms is an absolute responsibility: the board was extremely concerned with the presence of a revolver during the course of this conduct.
We are prepared to accept the implicit recommendations of the Appropriate Officer not to dismiss Cst. A.. We find some reassurance from the fact that Cst. A. was promoted while this matter was pending, and so we assume the C.O. has retained some confidence in him. Our position would have been quite different, as, we are sure, would have been the appropriate officer's, had there been any evidence that Cst. A deliberately threatened B with the revolver, or pointed it at her.
(emphasis added)
[12] These decisions, together with the impugned decision of the Commissioner, leave no doubt that the RCMP has in place a zero tolerance for domestic violence committed by their own members. It is also clear that those who are found guilty of such conduct face the likelihood of dismissal unless there are sufficient mitigating factors to warrant a reduction in the severity of the sanction. In Constable Rendell's case, the sanction of dismissal was imposed by the Adjudication Board and upheld by the Commissioner as neither were satisfied that such mitigating circumstances existed.
[13] Furthermore, while the principle of parity of sanctions is certainly relevant in the context of disciplinary proceedings within the RCMP, it cannot be applied in such a manner as to fetter the discretion bestowed upon the Commissioner by the legislation. Although the issue here is labour related insofar as the applicant was dismissed from his employment, the matter is before this Court in the context of judicial review of an administrative decision. Accordingly, regard must be given to the enabling legislation under which the impugned decision of the Commissioner was made.
[14] Through the provisions of Part IV of the RCMP Act, Parliament has set out a complex and comprehensive internal disciplinary process. The first stage is a hearing before the Adjudication Board. A Board's decision may then, with some restrictions, be appealed to the Commissioner by either party. With some limited exceptions, the Act requires the Commissioner to refer an appeal to the External Review Committee prior to considering the appeal on its merits. The Committee reviews the material before it and provides the Commissioner with a written report of their findings and recommendations.
[15] The duties and powers of the Commissioner on considering an appeal are set out in section 45.16 of the Act. The legislation requires the Commissioner to consider an appeal on the basis of the record prepared by the Board, the statement of appeal, written submissions to the Commissioner as well as any findings and recommendations of the Committee. The Commissioner must render a written decision giving his reasons. He is not bound by any findings or recommendations of the Committee. However, if he has not acted on its findings or recommendations, his written decision must include his reasons for not doing so.
[16] The Act then bestows upon the Commissioner the power to dismiss the appeal and confirm the Board's decision or to allow the appeal and either vary or rescind the sanction or sanctions. Subsection 45.16(7) provides that the Commissioner's decision on appeal from the Adjudication Board is final and binding, subject only to judicial review under the Federal Court Act.
[17] Accordingly, the Commissioner is the highest appellate body within the disciplinary process as set out by Parliament in the legislation. As such, he cannot be considered to be bound by previous decisions of the Adjudication Board in the manner suggested by the applicant. This is not to say that the disposition of similar cases is not relevant. However, such cases are for the purpose of consideration only. The Commissioner remains free and unfettered to make a decision based upon the specific and unique facts of each individual case before him. It was therefore, certainly within his power to conclude that in Constable Rendell's case, unlike previous cases of members committing domestic violence, there were insufficient mitigating circumstances to warrant the imposition of a less severe sanction.
[18] The applicant further argues that the Commissioner erred by treating the conduct in question as a "pattern of violence" and a "series of attacks", rather than as an isolated incident and in turn considered this to be an aggravating rather than mitigating factor. Again, I do not agree. While there was evidence and admissions before the Board concerning Constable Rendell's prior conduct, it is clear from the Commissioner's decision that he did not take those incidents into consideration in reaching his conclusion.
[19] On the contrary, his comments with respect to a pattern of behaviour or a series of attacks are direct references to the number and variety of contacts between Constable Rendell and Constable Flewelling commencing on the evening of November 25, 1997, and ending in the early morning hours of November 26, as set out in detail in the Agreed Statement of Facts. Based on this, the Commissioner concluded that "The evening in question showed a pattern. There were several incidents involving emotional, psychological and physical violence."
[20] Finally, I cannot ascertain that the Commissioner erred in law by giving undue weight to public expectations in determining the appropriate sanction to be imposed in cases of this nature. The weighing of various aggravating and mitigating factors falls within the purview of the Commissioner's expertise and discretion in disciplinary matters involving members who are criminally convicted of domestic assault. The RCMP's zero tolerance policy in domestic violence matters generally, and with respect to its members specifically, make it altogether reasonable for public expectations to have been one of the considerations taken into account by the Commissioner.
[21] I can see no reviewable error of law or fact in the Commissioner's decision which would warrant this Court's interference. For these reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
June 27, 2001