Date: 20050602
Docket: T-378-04
Citation: 2005 FC 798
BETWEEN:
ROBERT A. READ
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
[1] This case is about the "whistle-blower" defence: the circumstances in which an employee may publicly criticize his employer without reprisal. The whistle-blower is a police officer, a member of the Royal Canadian Mounted Police.
[2] Robert Allan Read enlisted in the RCMP in Regina in 1975. In keeping with the importance of the occasion, he not only acknowledged himself to be subject to the Royal Canadian Mounted Police Act and Regulations, he also swore three oaths. He swore an Oath of Allegiance. He swore an Oath of Office and he swore an Oath of Secrecy. He swore to keep absolutely secret all knowledge and information which came to him through his employment and that he would not, without authority, discuss any such matter with anyone, either by word or by letter.
[3] Twenty-five years later he was accused of disobeying a lawful order not to discuss with the media an investigation into suspected criminal activity in and about the Immigration Section of the Canadian Mission in Hong Kong. Not only did he discuss the case with the press, radio and television, he shared secrets by providing them with classified documents and information.
[4] It was alleged that he conducted himself in a disgraceful manner which brought discredit on the Force, in violation of the RCMP Code of Conduct.
[5] His defence was that he had done no wrong, that he always remained true to his Oaths. He disobeyed the order not to go public because the order was unlawful. His superior officer was a criminal trying to cover up serious wrongdoing and incompetence within Citizenship and Immigration Canada, External Affairs and the RCMP itself.
[6] He thought criminals had infiltrated the computer system in Hong Kong and were able to issue false visas. Our national security was at stake but the RCMP would do nothing to stop it. It was only as a last resort that he spoke to the media in the public interest in order to stamp out this evil and bring criminals to justice.
[7] Is Cpl. Read a whistle-blower or a disloyal employee?
[8] As these reasons are lengthy, I have prepared the following:
TABLE OF CONTENTS
1. The Decision Under Review Para. 9
2. The Facts Paras. 13 - 41
A. The First Investigation: 1991-1992 Para. 13
B. The Second Investigation: 1993-1994 Para. 22
C. The Third Investigation: 1995-1999 Para. 24
D. Cpl. Read's Version of Events Para. 29
3. Issues Para. 42
4. Judicial Review Paras. 43 - 59
A. Statutory Basis Para. 43
i) Federal Courts Act
ii) RCMP Act and Regulations
B. Standard of Review Para. 57
5. The "Whistle-blower" Defence Paras. 60 - 134
A. Fraser v. Canada Para. 60
B. Charter of Rights and Freedoms Para. 65
C. Job Impairment Para. 68
D. Health and Safety Para. 69
E. Government Illegality Para. 70
i) RCMP
ii) Citizenship and Immigration
iii) Burden of proof
F. Legitimate Public Interest Para. 105
G. Prejudice to Employer Para. 118
H. Timeliness Para. 123
i) available internal recourses
ii) provocation
iii) duty of peace officers
6. Sanction Para. 135
7. Conclusion Para. 142
1. THE DECISION UNDER REVIEW
[9] An RCMP Internal Adjudication Board found Corporal Read in breach of the Code of Conduct, which forms part of the RCMP Regulations, and sanctioned him by dismissing him from the Force. It was of the view that the whistle-blower defence did not apply. He appealed to the Commissioner.
[10] En route, the matter was considered by an External Review Committee. It recommended that Cpl. Read's appeal be maintained. His disclosures were a matter of legitimate public concern because for seven years the RCMP failed to take appropriate action to determine if employees at the Mission in Hong Kong had engaged in immigration fraud.
[11] Commissioner Zaccardelli did not hear the appeal because of his prior involvement in the case. The appeal was heard by Assistant Commissioner Tom Killam, the next most senior officer who had no prior personal involvement in the matter.
[12] Assistant Commissioner Killam did not agree with the recommendation of the External Review Committee. He accepted the findings of fact of the Board and thought the External Review Committee had engaged in re-weighing the evidence. His view of the whistle-blower defence differed from both that of the Board and that of the External Review Committee. He found, however, that the defence did not apply, agreed with the Board that Cpl. Read had been in breach of the Code of Conduct, and upheld the sanction of dismissal. This is the judicial review of that decision.
2. THE FACTS
A. The First Investigation: 1991-92
[13] RCMP involvement began in 1991; Cpl. Read's in 1996. In 1991, four disturbing events came to the attention of the RCMP:
a) A couple had been telephoned by two women who identified themselves as employees of the Mission; they offered to "fast-track" their application to emigrate to Canada for $10,000.
b) Shortly afterwards, two women who worked in the Immigration Section, and who had access to the Computer Assisted Immigration Processing System ("CAIPS"), were seen depositing large amounts of cash at a local bank.
c) Another couple complained about their immigration application taking too long to process. Despite a written acknowledgement from the Mission, there was no CAIPS record.
d) Fake Canadian and Panamanian visa stamps were found at the work station of a former employee.
[14] Sgt. J.A. Conohan, RCMP Immigration and Passport Branch, Special Investigations Unit, was dispatched to Hong Kong to look into these suspicious activities. Accompanying him was David Balser, a computer security expert with External Affairs. The latter was to address the CAIPS which was in use in Hong Kong and other large posts.
[15] Although Sgt. Conohan was satisfied that the two women who offered to fast-track an application either worked for or had connections at the Mission, he was unable to identify them. He ruled out the two women who had been seen depositing large amounts of cash for a number of reasons, notwithstanding that one had improperly given herself authority which could have allowed her to issue visas undetected. This was put down to administrative breaches of policy and a misunderstanding with her boss. She was a computer expert. He was not. He relied implicitly on her which led to her belief that she was authorized to change her access code. Moreover, the two women had a cosmetic business and Sgt. Conohan found no evidence that the cash was related to their work at the Mission.
[16] He closed those files because without further information it was impossible to identify a suspect.
[17] With respect to the immigration application not recorded on CAIPS, it was determined that the applicants were the victim of a local immigration consultant and that the documents they had were forgeries. Criminal charges were laid in Hong Kong, but eventually dropped as the Mission would not provide a witness.
[18] As for the forged visa stamps, as the suspect was Locally Engaged Staff, no longer in the Mission's employ, the matter was referred to the local police.
[19] While in Hong Kong, Sgt. Conohan investigated other matters and also met with one Brian McAdam, who worked in the Immigration Section. Mr. McAdam had suspicions that Asian criminal organizations, or triads, had infiltrated CAIPS and had a contact working at the Mission. These concerns were duly reported. Mr. McAdam figures prominently in subsequent reports.
[20] As for Mr. Balser's report, it pointed out grave shortcomings in CAIPS and the manner in which printed visa forms were accounted for, or not accounted for. Although addressed to External Affairs, a copy was attached to Sgt. Conohan's own report. The shortcomings were considered to be of an administrative nature, not a criminal nature.
[21] It would seem that Sgt. Conohan's report was accepted without a full review, notwithstanding that a year later the Assistant RCMP liaison officer at the Hong Kong Mission reported that the woman who had upgraded her own security clearance had left her job and was rumoured to be in hiding because of gambling debts owed to Asian triads.
B. The Second Investigation: 1993-94
[22] A second investigation began in 1993, upon reports that a Canadian at the Hong Kong Mission had accepted an expensive gold watch from a family of wealthy Hong Kong industrialists. Sgt., later Staff Sgt., Pushniak led the investigation. Interviews were initially conducted by telephone with several Canadians in Hong Kong, and in person with Canadians who had returned to Ottawa. Brian McAdam was one of those questioned. He, along with others, provided information that there were many occasions where Canadians had received expensive gifts and money from the same family, including lavish treatment at the race track. It was said that envelopes of money were provided to place bets. Witnesses provided conflicting information as to what was actually done with the money.
[23] Sgt. Pushniak recommended that two investigators be sent to Hong Kong. That recommendation was rejected. He thought there was some pressure put on the RCMP by External Affairs, and he decided to close the file because he was of the view that interviewing Canadians piecemeal once they returned to Ottawa gave everyone a chance to get their stories straight. He noted there was already some indication of that.
C. The Third Investigation: 1995-99
[24] The third investigation began in May 1995. The same Brian McAdam reiterated earlier accusations and thought they should be the subject of a public inquiry. He wrote to David Kilgour, MP and then-Deputy Speaker of the House of Commons, who in turn wrote to the Prime Minister about what appeared to Mr. McAdam to be a "culture of irresponsibility". Mr. Kilgour's request for a public inquiry was rejected by the Minister of Citizenship and Immigration who nevertheless undertook that the RCMP would conduct the necessary investigation.
[25] The investigation was initially led by Staff Sgt. Pushniak. As a result of staff re-assignments, Inspector, later Superintendent, Jean Dubé, Officer-in-Charge, War Crimes Unit, was given the added responsibility of Officer-in-Charge, Immigration and Passport Section.
[26] He was not particularly enthusiastic about pursuing the investigation. The RCMP Liaison Officer in Hong Kong had reported that Mr. McAdam was a very disgruntled employee. Supt. Dubé interviewed Mr. McAdam and found his accusations to be extremely vague. He was reluctant to pursue a cold case as the tendency of some Mission people to associate with the rich and famous in Hong Kong had apparently been stopped by a very clear policy directive issued two years earlier. Supt. Dubé was more concerned with stolen passports in another country, and would have preferred to allocate his resources differently.
[27] Be that as it may, in 1996 he assigned the matter to Cpl. Read who had experience as an investigator, but not in this field. He had recently joined the War Crimes Unit. He gave him the limited role of looking at the allegations to identify them and to recommend a course of action in terms of how to proceed with the investigation.
[28] Supt. Dubé soon received complaints that Cpl. Read was browbeating potential witnesses. He realized Cpl. Read lacked objectivity and constantly leaped to conclusions which were not supported by evidence. He recommended that he be replaced by a more experienced investigator with a higher rank. Cpl. Read was instructed not to interview any more witnesses, and by September 1997 had been removed from the file. He was replaced by Sgt. Sergio Pasin.
D. Corporal Read's Version of Events
[29] Cpl. Read became absolutely convinced that Mr. McAdam's theories were demonstrable fact. The events investigated by Sgt. Conohan were interconnected and there was a massive criminal cover-up within Citizenship and Immigration Canada, aided and abetted by Sgt. Conohan and David Balser. If the truth came out, the government would be deeply embarrassed as it would become known that senior civil servants were corrupt. Heads would roll.
[30] As Cpl. Read tells it:
10. This investigation is both complicated and straight-forward, and my conclusions (although supported by hard evidence) are difficult to believe, i.e. that senior bureaucrats sabotaged the national interest in defence of their own careers, by concealing evidence of a major flaw in their computer system which exposed Canada to the organized, clandestine entry of illegal immigrants, including senior members of criminal organizations. It took the writer six months of full-time effort to put the pieces together; you will not be able to see the connections until you have read the file plus reference materials several times, and reflected upon the logic of why McAdam's superiors did what they did. For the straight-forward part of the file, turn to Balser's report (tab A), page 10, Recommendation 9; this is the motive for the cover-up.
[31] Supt. Dubé did find the conclusions difficult to believe. Cpl. Read would not accept that Supt. Dubé was justified in removing him from the file, and refused to cooperate with his replacement, Sgt. Pasin.
[32] He convinced himself that Supt. Dubé was part of the conspiracy to cover up the problem and complained to various of his superiors, at least one of whom criticized his analysis. The others also did not share Cpl. Read's enthusiasm. As a result, Supt. Dubé and three superior officers were accused of corruption.
[33] It is significant that disciplinary proceedings were not taken against him at that time. Supt. Dubé took him to task for showing Mr. McAdam a copy of the Balser report, which was classified, and in his negative job assessment issued in March 1998, made no direct mention of Cpl. Read's accusations. He criticized him because he had to reassign war crimes cases under Cpl. Read's control due to his obsession with the Hong Kong Immigration file. He had been tasked to assist the War Crimes Unit with the preparation of "disclosure briefs" required by the Department of Justice due to Federal Court litigation relative to several war crime cases. His work on those cases as well as on other investigative files was limited due to the time he spent, often on voluntary overtime, to advance the Hong Kong case.
[34] In reply, Cpl. Read wrote that to date his complaints had been for naught.
Effectively, I had to either (1) accept being stone-walled by my superiors or (2) take my complaint to the RCMP Public Complaints Commission. The McAdam-CAIPS investigation is politically explosive, that I believe is why my superior officers, honourable and patriotic men, are covering up a major scandal in the federal civil service.
[35] He did, in fact, take up the issue with the Public Complaints Commission, and also with the Auditor General. The details thereof shall be discussed under ""The Whistle-Blower" Defence - Government Illegality".
[36] He was concerned that Supt. Dubé might retaliate by falsely accusing him of misconduct in connection with materials that had been supplied by Mr. McAdam. The "McAdam box" had been percolating for some time. Mr. McAdam had collected "open-source" documentation, i.e. non-classified documentation, with respect to Asian triads. He lent it to the RCMP who eventually, via Cpl. Read, returned it to him. Mr. McAdam informed Sgt. Pasin that the documents as returned included a document which was not his, a classified document. In anticipation, Cpl. Read went so far as to state in writing that he would only deal with Sgt. Pasin if cleared by his then-superior officer, Supt. St-Cyr.
[37] Then, on 20 August 1999, Supt. St-Cyr asked him to come to his office. Sgt. Pasin was present and began questioning him with respect to whether the McAdam box included classified documents, and whether an inventory was taken. Convinced he was being set up, he left the meeting and over the next few days met with several members of the media, providing many of them with classified documents in his possession including the Balser report and a copy of his complaint to the RCMP Public Complaints Commission and the appendices thereto. He had not received authorization from the RCMP or External Affairs, by then known as the Department of Foreign Affairs and International Trade, to release the documents. The classified information so-disclosed was disseminated to the public through various media outlets.
[38] One of the more detailed reports was published in The Vancouver Province , 26 August 1999. The article aptly summarizes the key elements of the investigation, and quotes both Cpl. Read and Mr. McAdam.
[39] The Province acknowledged it had copy of the Balser report. Cpl. Read was said to have alleged that Mr. Balser told him that he had been ordered to "obfuscate" his report which "is described by sources familiar with the allegations as "unintelligible bureaucratese"". The article concludes with a statement from Cpl. Read "Why don't they do anything?"
[40] Sgt. Pasin's continuing investigation was mentioned. His report would not be out for another few months, as this was but one of many matters assigned to him.
[41] It was only at this point that breaches of the Code of Conduct were alleged.
3. ISSUES
[42] As this case comes to the Court by way of judicial review, the issue is not so much whether Cpl. Read was justified in his decision to go public as it is whether Asst. Commissioner Killam was justified in holding that he was not. The Court must consider the legal basis of a judicial review of a decision of the Commissioner of the RCMP and the standard of that review.
4. JUDICIAL REVIEW
A. Statutory Basis
i) Federal Courts Act
[43] The statutory basis for an application of judicial review is section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, which allows anyone directly affected in respect of a decision or order of a Federal board, commission or other tribunal to apply to this Court. It has long been decided that a decision or order of the Commissioner of the RCMP is subject to judicial review by this Court.
[44] The Court may grant relief if, among other things, the Commissioner erred in law in making his decision or order, or based his decision or order on an erroneous finding of fact that he "made in a perverse or capricious manner or without regard for the material before [him]".
[45] If satisfied that Cpl. Read is entitled to relief, the Court has a number of powers including the power to declare the decision invalid or to quash and set it aside, either with or without a reference for redetermination in accordance with directions it considers appropriate.
[46] Section 18.1 of the Act sets out other grounds of review and powers of the Court which need not be considered in this case.
ii) RCMP Act
[47] Disciplinary matters are dealt with in Part IV of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, sections 37 - 47.17. Section 38 authorizes the Governor-in-Council to make regulations known as the "Code of Conduct" to govern the conduct of members.
[48] The Code of Conduct is found at sections 37 and following of the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361.
[49] The allegations against Cpl. Read derive from section 39(1) of the Regulations which provides:
|
39. (1)A member shall not engage in any disgraceful or disorderly act or conduct that could bring discredit on the Force. |
39. (1) Le membre ne peut agir ni se comporter d'une façon scandaleuse ou désordonnée qui jetterait le discrédit sur la Gendarmerie.
|
[50] Other sections provide that a member shall obey every lawful order; not publicly criticize the administration, operation or objectives of the Force, unless authorized by law; knowingly or willfully make a false, misleading or inaccurate statement or report to a superior officer pertaining to any investigation, or as to the conduct of any other member, or knowingly neglect to give insufficient attention to any duty the Member is required to perform.
[51] Disciplinary action may be either informal or formal. The action in this case was formal as it appeared to an appropriate officer that Cpl. Read had contravened the Code of Conduct and that having regard to the gravity of the contravention and the surrounding circumstances, informal disciplinary action would not be sufficient if the contravention were established.
[52] Thus began the case before the three-member Adjudication Board. Section 43 of the Act requires the three members to be RCMP officers, at least one of whom must be a graduate of a law school recognized by a law society of a province.
[53] An appeal lies therefrom to the Commissioner who, before consideration thereof, normally refers the case to the Royal Canadian Mounted Police External Review Committee. No member of the Force is eligible to serve on the Committee. No qualifications are spelled out, but it is common ground that the Chairman who authored the report is a lawyer.
[54] Finally, section 5 of the Act requires the Commissioner to be an RCMP officer. There is no requirement that he or she be legally trained.
[55] Section 45.16 of the Act requires the Commissioner to take into account the findings and recommendations set out in the report of the External Review Committee. The Commissioner is not bound to act on any findings or recommendations set out therein, but if he does not, he must provide written reasons. Asst. Commissioner Killam did not agree with the recommendations of the External Review Committee, and explained why.
[56] The final step in the process is judicial review before this Court. Section 45.16(7) of the Act states:
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A decision of the Commissioner on an appeal under section 45.14 is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal to or review by any court. |
La décision du commissaire portant sur un appel interjeté en vertu de l'article 45.14 est définitive et exécutoire et, sous réserve du contrôle judiciaire prévu par la Loi sur les Cours fédérales, n'est pas susceptible d'appel ou de révision en justice. |
B. Standard of Review
[57] In exercising its powers of judicial review, the Federal Court, as any other Canadian court, is guided by principles of administrative law as stated by the Supreme Court of Canada. Many of these principles were summarized in two recent decisions, Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247. Dr. Q. and Ryan, which were handed down the same day, stand for the proposition that there are only three standards for judicial review of administrative decisions: correctness, reasonableness simpliciter, and patent unreasonableness. A pragmatic and functional approach is to be applied. The Court must weigh a number of factors in order to determine whether a particular issue should receive exacting review (correctness), undergo significant searching or testing (reasonableness simpliciter) or be left to the near-exclusive determination of the original decision-maker (patent unreasonableness). The reviewing court must take into account whether there is a privative clause or statutory right of appeal, the expertise of the underlying tribunal relative to that of the reviewing court, the purpose of the legislation in general and the provisions under review in particular, and the nature of the question: law, fact or mixed law and fact.
[58] The standard of review with respect to a decision of the Commissioner of the RCMP was considered by Kelen J. in Stenhouse v. Canada (Attorney General) [2004] F.C.J. No. 469, (QL). I agree with him that the Commissioner has obvious expertise relating to the RCMP which favours deference and that the Act recognizes the need for the RCMP to control its own disciplinary matters as reflected in the three-stage disciplinary process. This favours deference to the Commissioner in making a disciplinary decision which is largely fact-driven. He has the necessary expertise to make a review of factual findings.
[59] However, as Kelen J. went on to say, on questions of law the Court has a greater expertise and will review the Commissioner's decision according to the standard of correctness. On mixed questions of law and fact the Court will grant limited deference, i.e. the holding cannot stand if it is unreasonable.
5. THE "WHISTLE-BLOWER" DEFENCE
A. Fraser v. Canada
[60] The basis of the "whistle-blower" defence lies in the decision of the Supreme Court of Canada in Fraser v. Canada (Public Service Staff Relations Board), [1985] 2 S.C.R. 455, the facts of which pre-date the Charter. The broad common law principles enunciated in that case demonstrate the balance to be struck between freedom of expression and the duty of loyalty owed to an employer. Neil Fraser was a Unit Supervisor employed by Revenue Canada at Kingston. He publicly criticized the Federal Government's policies concerning metric conversion and the constitutional entrenchment of a written charter of rights. The criticisms became more and more vitriolic, despite job suspensions. He was then discharged, a decision upheld by the Public Service Staff Relations Board, and on judicial review by the Federal Court of Appeal. In speaking for the Supreme Court, Dickson C.J. stated that freedom of speech was a principle of our common law Constitution. However, it was not an absolute value, and the Adjudicator was correct in holding that it had to be qualified by the need for an impartial and effective Public Service.
[61] He held that some public speech by public servants was permitted for three reasons:
a) our democratic system is based on free and robust public discussion of public issues;
b) a prohibition against public discussion on public issues by all public servants would deny a fundamental right to far too many people; and
c) the matter must be approached with common sense.
The circumstances must be considered. For instance, he queried: "Can anyone seriously contend that a municipal bus driver should not be able to attend a Town Council meeting to protest against a zoning decision having an impact on her residential street?"
[62] I consider it most significant that Revenue Canada was not the department charged with metrification, or with patriation of the Constitution and the insertion of a written charter. Mr. Fraser thus argued that since his criticism was not job-related, he should not have been muzzled. The Court disagreed and concluded that his criticisms were job-related because of the importance and necessity of an impartial and effective Public Service. The Public Service is part of the executive branch of government and is charged with the duty of administering and implementing policy. Public Service employees must be loyal, knowledgeable, fair and possess integrity.
[63] Mr. Fraser's display of lack of loyalty was inconsistent with his duties as an employee and by necessary implication, even without specific evidence, impaired his effectiveness as a public servant. Effectiveness also brings into play public perception, and it was not unreasonable for the Adjudicator to find that Mr. Fraser's conduct could or would give rise to public concern, unease and distrust of his ability to perform his employment.
[64] The most important passage is found at page 470, paragraph 41:
As a general rule, federal public servants should be loyal to their employer, the Government of Canada. The loyalty owed is to the Government of Canada, not the political party in power at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies. And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies. In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was inconsistent with his duties as an employee of the Government.
[emphasis added]
B. Charter of Rights and Freedoms
[65] The Canadian Charter of Rights and Freedoms was enshrined in our Constitution as Schedule B to the Constitution Act, 1982. The Fraser whistle-blowing defence must now be considered in light of sections 1 and 2(b) of the Charter which provide:
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1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. |
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique. |
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2. Everyone has the following fundamental freedoms: ...
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; |
2. Chacun a les libertés fondamentales suivantes : [...]
b) liberté de pensée, de croyance, d'opinion et d'expression, y compris la liberté de la presse et des autres moyens de communication; |
[66] Tremblay-Lamer J. held in Haydon v. Canada, [2001] 2 F.C. 82, that the common law unwritten right of freedom of expression found its way into section 2 and that the limits thereon enunciated in Fraser were reasonable limits within the meaning of section 1, albeit prescribed by common law, rather than by statute.
[67] Cpl. Read submits that this decision (Haydon No. 1) set out a fourth circumstance which would justify the whistle-blower defence, legitimate public interest. I shall discuss that submission later on.
C. Job Impairment
[68] This case is readily distinguishable from Fraser. Cpl. Read's criticism bore directly not only on the duties and responsibilities of the RCMP, but also on an investigation in which he had been personally involved. He has lost his security classification, and the trust of his superior officers. There is no question but that his ability to carry out his job has been impaired.
Having regard to counsel's emphasis on the need for proof of actual impairment or detriment, I may say that, in my view, where there is a group of employees working as a unit, there must prima facie be direction, which involves a directing mind to which the members of the unit must, as far as their work is concerned, submit, for, otherwise, there can be no coherent effort by the group but only chaos. It follows, that, where an important member of such a unit challenges the legally established leader of the unit, prima facie it will impair the working of the unit; and evidence of such a challenge gives rise to a factual presumption of misconduct.
Arthur J. Stewart v. Public Service Staff Relations Board, [1978] 1 F.C. 133, para. 8, per Jackett C.J.
However, he must be accommodated if he was entitled to blow the whistle.
D. Health and Safety
[69] Fraser gave as an example of appropriate whistle blowing revelation of government policies which jeopardized the life, health or safety of the public servant or others. Asst. Commissioner Killam agreed with the External Review Committee that the risk was only tangential. I agree the possibility exists that criminals might have been able to work their way into Canada on bogus documentation and then constitute a threat to our social fabric. I agree that the risk, at least in the context of this case, was too remote to justify Cpl. Read's actions.
E. Government Illegality
[70] In my opinion, this issue is the crux of the case. Dickson C.J. stated in Fraser that whistle-blowing would be permissible "if, for example, the Government were engaged in illegal acts..." An illegal act may not be a criminal act, but a criminal act is certainly an illegal act. Cpl. Read alleges two broad sets of criminal actions, firstly, by those public servants not members of the RCMP who were engaged in administering and supervising immigration policies in Hong Kong, and secondly, by RCMP officers who covered up the illegal activity. I shall first deal with the RCMP and then with Citizenship and Immigration Canada and External Affairs.
i) RCMP
[71] Before the matter was heard by the Adjudication Board, Cpl. Read had submitted a "public complaint" in January 1998 to the RCMP Public Complaints Commission (since renamed the Commission for Public Complaints Against the RCMP). He complained against four officers, but principally Supt. Dubé. He attached classified material to his complaint. A year later he also submitted a complaint to the Auditor General, again attaching classified material.
[72] The practice of the Public Complaints Commission was to give the RCMP an opportunity to comment before investigating. Staff Sgt. Joseph Royal of the Internal Investigations Section of the RCMP informed Cpl. Read by letter that he had reviewed his complaint, found no substance to it, and that no further investigation was necessary. He was invited to continue the matter with the Commission if he so chose. (The Adjudication Board subsequently found that Staff Sgt. Royal's investigation was cursory. Indeed, he should not have carried out the investigation himself because he considered the four accused officers to be his friends.)
[73] Undoubtedly to everyone's surprise, the Public Complaints Commission ultimately refused to deal with the matter on the grounds that it went beyond its mandate. Section 45.35(1) of the Act gives any member of the public the right to complain to the Commission concerning the conduct of any RCMP Member in the performance of his or her duties. On the other hand, section 31 permits any RCMP member aggrieved "by any decision, act or omission in the administration of the affairs of the Force" to present a grievance. The Commission concluded that Cpl. Read's complaint related to the "administration of the affairs of the Force" and so could not be reviewed by it.
[74] That was a decision of a Federal board or tribunal which could have been subjected to judicial review by this Court. Cpl. Read opted to complain to the Auditor General.
[75] The report of the Auditor General on Citizenship and Immigration Canada in April 2000 noted that the Department was highly vulnerable to fraud and other irregularities and that visa form control had to be improved as visas were worth thousands of dollars on the black market. The computer systems were not adequately protected, and the officers who managed the systems, although fairly competent users, did not have the expertise needed to ensure effective security and control. There was a surprising lack of monitoring. Quite properly, no specifics were given.
[76] The Adjudication Board also had the benefit of Sgt. Pasin's completed report as well as an RCMP Administrative File Review of all investigations into allegations of corruption at the Canadian Commission in Hong Kong, and Cpl. Read's allegations of wrongdoing by Supt. Dubé and other officers.
[77] Sgt. Pasin's report came out in December 1999. It established that a number of Mr. McAdam's concerns, such as files disappearing from the CAIPS system, were computer glitches.
[78] As to improper manipulation of CAIPS, Sgt. Pasin followed up on a great number of successful visa applications in an effort to ascertain if any had been fast-tracked. He could find no evidence. Consequently, and consistent with the Balser report, he concluded CAIPS was open to abuse, but there was no evidence it had in fact been misused.
[79] Sgt. Pasin went into considerable detail about the allegations of corruption and conflicts of interest with respect to gifts being given to Canadian officials in Hong Kong on festive occasions. He was satisfied that officials had been given packages by one very wealthy industrial family to bet at the race track. Some used the money to make contributions to charity, which was documented, others claimed to have given the money back to members of the family, while some, in all likelihood, used the money. There was no evidence that the family ever obtained visas improperly. Indeed, no family member ever sought to immigrate here. They only visited from time to time.
[80] There was an allegation that one Canadian lived beyond his means when he returned here. However, background verifications showed he had made successful investments. Nothing untoward was discovered.
[81] Sgt. Pasin was faced with section 121(1)(c) of the Criminal Code which makes it an offence for a government employee to demand, accept, offer or agree to accept "from a person who has dealings with the government" a commission, reward, advantage or benefit of any kind, directly or indirectly, except with the written consent of his department head. He reviewed the matter with the RCMP legal unit, as did Supt. Dubé with the Crown Attorney. They were advised that although the Crown did not need to demonstrate a particular result flowing from the gift, the gift could not be trivial, and it would be very difficult to coordinate payments with the dealings the family had with the government. There was a great deal of conflicting evidence and it would also be very difficult to prove that the Canadian officers personally benefitted from funds they received. Consequently, no charges were laid.
[82] He also made a number of recommendations to Citizenship and Immigration Canada and advised them to keep track of named individuals who might seek admission to Canada but who appeared to be inadmissible.
[83] Shortly before Sgt. Pasin's final report was issued, an administrative file review ordered by the Deputy Commissioner - Organized Crime was prepared. It was carried out by three investigators who had no prior involvement with the investigation or any relationship with the earlier investigators or the complainants. Their report is somewhat critical of the first two investigations because of a lack of thoroughness and follow-up, as well as a lack of documented supervision and review. The report is somewhat ambivalent as to the decision not to send RCMP officers to Hong Kong to follow up on the second investigation. They noted that the travel request was not supported on the basis that the new allegations were an "internal matter" for Citizenship and Immigration Canada, but also accepted that the concerns of the RCMP liaison officer in Hong Kong that the investigation might have a negative effect on the Commission were taken into account. Although the frustration of the investigators who were told they could not go to Hong Kong was evident, their decision to conclude the investigation which would be limited to follow-up interviews when officials returned to Canada "should have been challenged". There was no clear direction.
[84] As to Cpl. Read:
The file review team questions the decision to assign an investigation of this sensitivity to an investigator who lacked the knowledge, skills and abilities in immigration-related matters. It was evident during this review that Cpl. Read did not have the relevant background or analytical expertise to investigate this file.
[Applicant's Record, page 473]
[85] They noted that Sgt. Pasin's investigation to that point was very thorough.
[86] With respect to the allegations of RCMP cover-up, they were of the view that Supt. Dubé had a number of legitimate reasons to remove Cpl. Read from the file. They noted there had been at least four RCMP meetings with Cpl. Read concerning his complaints about Supt. Dubé, in addition to his complaint to the Public Complaints Commission.
[87] The review team concluded by saying they found no evidence in support of the allegations of cover-up and obstruction of justice. For a number of reasons, there was some merit to Cpl. Read's concern that the matter had not been handled as expeditiously as it could have been. However, contributing factors were that the section was under-resourced, which resulted in competing priorities. The unit was responsible for investigations at over 100 missions and consulates world-wide. Some delays were beyond the control of the investigators. Citizenship and Immigration Canada did not provide some information with respect to CAIPS in a timely manner, and members were transferred to other duties or deployed to other priorities.
[88] Quite apart from these reports, the Adjudication Board found Supt. Dubé and Sgt. Pasin to be credible witnesses.
[89] Supt. Dubé, on a number occasions, had expressed a reluctance to give the Hong Kong Mission file high priority. He had other matters on his plate which, if not more important, were at least more current. The RCMP liaison officer at Hong Kong had said that Mr. McAdam was quite disgruntled, which is obvious. He personally interviewed Mr. McAdam and found the accusations to be extremely vague and a thorough investigation, as completed by Sgt. Pasin, established to the RCMP's satisfaction that some officials in Hong Kong had improperly received gifts in conflict with government policy. However, there was insufficient evidence to lay criminal charges.
[90] Supt. Dubé had also expressed concern about unfortunate perceptions which could and did arise. His unit acted on behalf of Citizenship and Immigration Canada in investigating fraud. Citizenship and Immigration Canada was sometimes referred to as a "client". Supt. Dubé had recommended that another unit carry out the investigation.
[91] The Adjudication Board found, in harsh language, that there was absolutely no merit in Cpl. Read's accusations, a finding in which Asst. Commissioner Killam concurred. That finding is amply supported by the evidence.
[92] Supt. Dubé was simply carrying out his duties. As Lord Denning said in Metropolitan Police Comr., ex parte Blackburn, [1968] 1 All. E.R. 763 at 769:
Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution be brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area.
[93] In Wool v. the Queen, [1981] F.C.J. No. 506, Staff Sgt. Wool sought an injunction to allow him to pursue an investigation despite the orders of his superior. The Court held that a commanding officer was not accountable to a staff sergeant under him. Staff Sgt. Wool had no particular personal individual right other than whatever right he might hold as a member of the public to see that the administration of justice was properly carried out. The commanding officer "has the administrative discretion to decide what proportion of his resources will be deployed towards one particular investigation".
[94] All the evidence supports the proposition that Supt. Dubé exercised his discretion on proper principles.
[95] Since Supt. Dubé covered nothing up, it follows that his superior officers did not either.
ii) Citizenship and Immigration Canada
[96] The evidence as found is that Mr. Balser, on behalf of External Affairs, covered nothing up. Although he wrote in "techno-talk", which Cpl. Read had trouble understanding, the intended audience did not have that difficulty. He did not "obfuscate" his report. Rather, it was found that he refused to re-write it years later at Cpl. Read's request. Citizenship and Immigration Canada acted upon the report but, according to some who are supposed to know these things, did not do all that they should have done.
[97] We are left with suspicions and belief by a number of RCMP officers, including Sgt. Conohan, Staff Sgt. Pushniak, Cpl. Read and Sgt. Pasin, that there was some criminal activity in and about the Mission at Hong Kong. No one shared Cpl. Read's view as to its extent. However, the legal advice given Sgt. Pasin and Supt. Dubé was that there was insufficient evidence to justify the laying of criminal charges. That may not have been so had there been a prompt follow-up to the first investigation.
iii) Burden of Proof
[98] Are suspicions enough? This brings us to the burden of proof, which has two aspects. The first is that Cpl. Read alleges that the burden falls upon the RCMP to establish that he was not entitled to speak out. The second is that, in any event, it is not necessary that the accusations of illegality be true, only that they be honestly believed, or at least that there be some evidence in support thereof.
[99] On the first point, the burden of proof is only relevant if there is insufficient evidence. There is more than enough evidence to justify the Adjudication Board's findings of fact, and Asst. Commissioner Killam's support thereof. The External Review Committee, particularly as regards provocation, doubted that Supt. Dubé and Sgt. Pasin were not trying to set Cpl. Read up. Although the Committee was certainly entitled to make those comments, Asst. Commissioner Killam was correct in noting that it was re-weighing the evidence. Be it in an administrative law context or in an appellate context, a finding of fact, including an inference based on the finding of other facts, cannot be set aside unless patently unreasonable. (Housen v. Nikolaisen, [2002] 2 S.C.R. 235; Dr. Q., supra; Ryan, supra.)
[100] As to the burden of justifying a public allegation of government illegality, it was found that Cpl. Read honestly believed in what he had said. Honestly is not enough. There must be some rational basis to the allegations. It was decided long ago in Toomey v. London, Brighton, and SouthCoast Railway Company, [1857] 3 C.B. (N.S.) at 150 per Williams J.:
It is not enough to say that there was some evidence ... a scintilla of evidence ... clearly would not justify the judge in leaving the case to the jury. There must be some evidence on which they might reasonably and properly conclude that there was negligence.
[101] Cpl. Read went public without inquiring as to the state of Sgt. Pasin's investigation. He took the view, utterly without justification, that Sgt. Pasin was Supt. Dubé's lapdog because they had worked together in the past.
[102] That is not to say that there must be proof positive, to be established years later by way of a criminal conviction. Since Cpl. Read did not even come close to proving his allegations on a balance of probabilities, it is not necessary to settle upon a clear demarcation line.
[103] In Grahn v. Canada (Treasury Board) (1987), 91 N.R. 394 (FCA), a public servant publicly accused his employer of tolerating frauds upon the Unemployment Insurance Fund and breaching privacy laws. Hugessen J.A., speaking for the Court said:
The fact remains, however, that having chosen the drastic course of publicly accusing his superiors of illegalities, it was up to the applicant to prove his allegations if he wished to avoid the otherwise natural consequences of his actions. As the applicant himself admitted at the hearing before us, the record is devoid of such proof. The applicant's own unsubstantiated allegations are certainly not enough.
[104] While Cpl. Read may have established more than Grahn did, a scintilla of evidence is clearly not enough to allow one to breach one's duty of loyalty to one's employer and one's oaths.
F. Legitimate Public Interest
[105] It was suggested on behalf of Cpl. Read that in Haydon No. 1, supra, Tremblay-Lamer J. created a further exception to the duty of loyalty, that of "legitimate public interest".
[106] One of her findings as set out in her summary at paragraph 120 was "where a matter is of legitimate public concern requiring a public debate, the duty of loyalty cannot be absolute to the extent of preventing public disclosure by a government official. The common law duty of loyalty does not impose unquestioning silence".
[107] However, a reading of the decision as a whole amply demonstrates that she did not have that intention. In the very next paragraph of the summary she went on to say: "In cases that fall within the Fraser qualifications, the public interest outweighs the objective of an impartial and effective public service".
[108] Furthermore, she made it clear at paragraphs 100 and 119 that "the applicants' public criticisms fell within the first qualification of the Fraser test, namely disclosure of policies that jeopardize life, health or safety of the public."
[109] That is not to say that there could not be other exceptions to the common law duty of loyalty. Dickson C.J. in Fraser did not purport to set out an exhaustive list. However, I do not find that legitimate public interest at large is an exception to the duty of loyalty owed by an employee to his or her employer.
[110] The public does have and should have an interest in the public affairs of this country, including the operation of government departments. That legitimate interest has been accommodated in the Access to Information Act, which is itself balanced with the Privacy Act.
[111] It falls upon a department head, not someone in Cpl. Read's position, to decide what may be publicly disclosed. To the extent there is a dispute, that dispute is resolved in this Court in accordance with the provisions of the Act.
[112] The public is not limited to dear hearts and gentle people. It includes criminal elements who would like nothing better than to know details of weaknesses in the CAIPS system, so as to be in position to exploit them.
[113] The External Review Committee had a different view of the matter. What it said was:
For what is at issue was a deliberate choice made by the RCMP not to pursue an investigation into possible criminal wrongdoing even though numerous examples had been drawn to its attention of incidents that suggested that an immigration fraud ring was operating within the very premises of the Mission and possibly involved employees of the Government of Canada. If that is not a matter of legitimate public concern, very few issues will ever be so.
[114] With respect, the evidence shows that there were a number of decisions made by a number of officers over a number of years. In retrospect, some of those decisions could have been better, particularly in 1991 through 1993. By the time Supt. Dubé was put in charge, the trail was cold.
[115] There is no evidence of any concerted effort by the RCMP. Notice the singular "it" used by the External Review Committee. Equating the Force to a corporation, there was no directing mind and will of the Force ordering a cover-up.
[116] As Viscount Haldane L.C. said in Lennard's Carrying Co. v. Asiatic Petroleum Co., [1915] A.C. 705, at page 713:
... a corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation. That person may be under the direction of the shareholders in general meeting; that person may be the board of directors itself... .
See also 373409 Alberta Ltd. (Receiver of) v. Bank of Montreal, [2002] 4 S.C.R. 312, [2002] F.C.J. No. 82 (QL), and R. v. Canadian Dredge and Dock Co., [1985] 1 S.C.R. 662.
[117] Individual decisions in the course of a police investigation which may be questionable, and which certainly could be debated within the Force, are not matters of legitimate public concern which ousted Cpl. Read's duty of loyalty. If Cpl. Read's suspicions were of legitimate public interest, it follows that Supt. Dubé's concerns that his limited resources should be allocated differently would also be a matter of legitimate public interest. By their very nature, police investigations must be confidential.
G. Prejudice to Employer
[118] In Haydon v. Canada (Treasury Board), 2004 FC 749 (Haydon No. 2), Martineau J. at paragraph 49 set forth a list of relevant factors in determining the validity of the whistle-blower defence. He said:
In light of the above, the following factors are relevant in determining whether or not a public service employee who makes a public criticism breaches his or her duty of loyalty towards the employer: the working level of the employee within the Government hierarchy; the nature and content of the expression; the visibility of the expression; the sensitivity of the issue discussed; the truth of the statement made; the steps taken by the employee to determine the facts before speaking; the efforts made by the employee to raise his or her concerns with the employer; the extent to which the employer's reputation was damaged; and the impact on the employer's ability to conduct business.
[119] Haydon No. 1 and Haydon No. 2 differ in this way. In Haydon No. 1, Dr. Haydon was speaking of a public health issue in an area in which she had particular expertise. It was held that her remarks could not be sanctioned as she fell within a Fraser defence. In Haydon No. 2 she was sanctioned for publicly disputing Health Canada's position with respect to the importation of Brazilian beef. Health Canada considered this to be a public health issue, while Dr. Haydon considered it as mere politics arising out of a trade dispute between the two countries. She was also speaking with respect to an area in which she had no particular expertise. Her sanction survived judicial review by this Court.
[120] Whether damage to the employer's reputation should be considered as a separate issue, or as part of Neil Fraser's main defence which was that his criticisms were not job-related, the result is the same with respect to Cpl. Read. He was speaking of a matter with which he had been personally involved. Martineau J. ties in harmful remarks with evidence of impairment to perform one's duty. He found that the remarks had been harmful to Canada's relationship with Brazil. (See paras. 53 and ff.)
[121] There is no question that Cpl. Read's remarks impaired his ability to carry out his duty, and certainly had the potential of adversely affecting his employer. As noted in Fraser, supra, evidence can be inferred. It was not necessary for the RCMP to prove that anyone actually believed Cpl. Read when he accused four of his senior officers of criminality.
[122] Haydon No. 2 is currently under appeal.
H. Timeliness
i) available internal recourses
[123] Furthermore, even if Cpl. Read had otherwise been justified in going public, which he was not, he was precluded from doing so because he had not exhausted internal recourses. The underlying rationale is that a loyal employee will give his employer a reasonable opportunity to correct the problem (see Haydon No. 2 at para. 47).
[124] As mentioned by the RCMP Public Complaints Commission, there was a grievance procedure open to him.
[125] More particularly, on 17 August 1999, just three days prior to the fateful meeting with Sgt. Pasin, Cpl. Read received an email from Asst. Commissioner Cummins, the RCMP Ethics Advisor, whom he had asked to review the file and who had advised him that his conclusions were unsustainable. In the email, Asst. Commissioner Cummins mentioned that Chief Supt. Lentin, Criminal Operations Officer "A" Division, was on holiday to the end of that month. In his stead, he met with Commanding Officer Mercier and explained to him their meeting and the situation as Cpl. Read saw it. Commanding Officer Mercier requested he convey the message that his office remained open should he wish to speak with him but otherwise the matter would be discussed with Chief Supt. Lentin upon his return from holiday.
[126] Thus, when Cpl. Read went to the press in the days immediately following 20 August, he knew perfectly well that he could have immediately spoken with Asst. Commanding Officer Mercier and with Chief Supt. Lentin in a week's time.
ii) provocation
[127] Although Cpl. Read may well have been frustrated because his superior officers did not see things his way, that fact cannot serve as a justification to go public. Even if one were to say that the RCMP were in breach of a duty owed to him to make him privy to the investigation, which they certainly were not, as stated above he had other recourses available. Even if he had no such recourses, he still would not have been justified in what he did.
[128] Despite what Cpl. Read may have thought, Supt. Dubé and Sgt. Pasin were not trying to set him up. As Cpl. Read later accepted in an agreed statement of facts, Sgt. Pasin was following up on a statement by Mr. McAdam that when Cpl. Read returned the documents which he had lent to the RCMP, included therein was a document which he had not originally supplied. One can well understand why Sgt. Pasin was asking Cpl. Read whether or not he had made an inventory of the documents sent to Mr. McAdam. If one document, which it turns out was classified, was inadvertently in the box, perhaps there were others that Mr. McAdam had failed to disclose, or had not realized were not originally in the box.
[129] Cpl. Read had a duty to cooperate, a duty which he refused. Small wonder he thought he might be reported.
[130] Prior to going public he had written that he would be prepared to wait another year before doing so, and he had just been assured superior officers were ready to meet with him again. This led the Adjudication Board to form the view he went public as a "bargaining chip" in an effort to prevent Supt. Dubé from alleging that he was in breach of the Code of Conduct. Cpl. Read said the following in cross-examination:
Q. And, you told a number [of] people including Pat Cummins, for example, Supt. St-Cyr that if you felt cornered you would go to the press; right?
A. Yes, I did, yeah.
Q. How is that not leverage? How is that not being used as a bargaining chip, Cpl. Read, against the RCMP?
A. That is leverage. That is a bargaining chip.
Q. And is leverage or a bargaining chip part of the grand noble concept of whistle-blowing?
A. It's part of the concept of self-defence.
Q. Is part of the noble concept of whistle-blowing?
A. Well, if I perceive myself to be under attack, common sense tells me I should take measures to protect myself. (Transcript 8 February 2002 p.5)
[131] Given that Cpl. Read was already in breach of duty by showing Mr. McAdam a copy of the Balser report, that no steps had been taken against him other than a negative performance report and a transfer out of the department, and that Officers Cummins, Mercier and Lentin, all of whom he accused of criminality, were still willing to speak with him, even if there had been justification in going public he went public far too early. Indeed, the Cummins email is absolutely non-threatening:
The CO had asked that I convey this to you and I undertook to do so but had thought I would run into you either here in the building or alternatively at your home on one of my walks around the neighborhood. I regret the delay in conveying this information and hope it has not caused undue anxiety as a result.
[132] It was the RCMP who showed remarkable constraint, given the provocation to which it had been subjected.
iii) duty of peace officers
[133] Both the Adjudication Board and Asst. Commissioner Cummins were of the view that a police officer must be more circumspect than an ordinary public servant. The External Review Committee, on the other hand, was of the view that a peace officer was justified in going public sooner, rather than later.
[134] In light of what I have said, it is not necessary in this case to consider whether peace officers and public servants have different duties of loyalty which have an impact on the "whistle-blower" defence. That issue should be left for another day.
6. SANCTION
[135] The Adjudication Board ordered Cpl. Read to resign from the Force and, if he did not resign within 14 days, it ordered his dismissal. The decision was in line with section 45. 12(3) of the Act which provides for four possible sanctions in a formal disciplinary action. In the case of an officer, the Board may:
a) Recommend dismissal from the Force;
b) Issue a direction to resign from the Force and in default of resigning within 14 days, a recommendation for dismissal;
c) Recommend demotion; or
d) Recommend forfeiture of pay for a period not exceeding 10 work days.
[136] The External Review Committee recommended to the Commissioner that Cpl. Read's appeal be maintained, and did not review the sanction aspect of the Board's decision.
[137] Asst. Commissioner Killam came to the same decision as the Adjudication Board.
[138] A thorough review of factors, both for and against Cpl. Read, was made. This wrongful whistle-blowing appears to have been the only incident of significance over close to a 25-year period. On the other hand, the one incident lasted for years. The Board took into account Cpl. Read's subjective beliefs, the fact that those beliefs were honestly held, and that he made no personal gain. The Board also took into account that upon reflection, it might be that Cpl. Read should have been more closely supervised from the outset and that even though Cpl. Read was refusing to cooperate with Sgt. Pasin in the investigation, Supt. Dubé's arrangement of a surprise meeting between Cpl. Read and Sgt. Pasin when Cpl. Read thought he was being left alone, was somewhat heavy-handed. However, it was also noted that other senior personnel had experienced frustration in relation to the Hong Kong file, and did not resort to media disclosures. The Hong Kong file was not exceptional for the Immigration and Passport section which was occupied with a number of files international in nature. However, when all was said and done, Asst. Commissioner Killam agreed with the Board that Cpl. Read had not demonstrated a level of trustworthiness necessary to continue his employment.
[139] Some might consider the decision on sanction to be harsh. Even though Cpl. Read lost his security clearance, one might think there would have been a position available for a seasoned officer, even one who in honest error accused his senior officers of criminal actions.
[140] However, the answer is to be found in the Supreme Court's decision in Ryan, supra. The decision on sanction was a mixed one of fact and law. Asst. Commissioner Killam is entitled to deference on the reasonableness simpliciter standard. "An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it" (Ryan, para. 48). The Court also noted in Ryan that a court will often be forced to accept that a decision is reasonable even if it is unlikely that the Court would have reasoned or decided the way the tribunal did (para. 46).
[141] Parliament has chosen that the final decision-maker on matters of discipline be the Commissioner, who must take into account advice he has received from the External Review Committee, subject always to judicial review. The reasons for the decision are clearly set out and I cannot find that they are unreasonable. Consequently, the decision must stand.
7. CONCLUSION
[142] Cpl. Read owed a duty of loyalty to the RCMP. He made public classified documentation and information in breach of that duty. His "whistle-blowing" defence is not made out in this case. There simply was not enough evidence to lend credence to his allegations. The restrictions on his right to speak out, as long established at common law and as set out in the Royal Canadian Mounted Police Act and regulations thereunder, are reasonable within the context of section 1 of the Charter. The need for an impartial and effective police force prevails. The decision of Asst. Commissioner Killam that Cpl. Read breached the RCMP Code of Ethics stands up to judicial review, as does the sanction that he be dismissed from the Force.
[143] Both parties sought costs. Cpl. Read submitted that if he was not successful, it would be appropriate that no costs be awarded. Both parties were represented by two counsel during the hearing, and they each agreed that the other was justified in having that additional representation.
[144] I see no reason why costs, based on Column III, mid-range, with a 50% fee for second counsel at the hearing, should not follow the event.
"Sean Harrington"
Judge
Ottawa, Ontario
June 2, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-378-04
STYLE OF CAUSE: ROBERT A. READ
AND
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: APRIL 18-20, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: JUNE 2, 2005
APPEARANCES:
David Yazbeck FOR APPLICANT
Paul Champ
Patrick Bendin FOR RESPONDENT
Michael Roach
SOLICITORS OF RECORD:
Raven, Allen, Cameron, Ballantyne FOR APPLICANT
& Yazbeck LLP
Ottawa, ON
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada