T-631-97
Alexander Jaworski (Applicant)
v.
The Attorney General of Canada (Respondent)
Indexed as: Jaworskiv. Canada (Attorney General) (T.D.)
Trial Division, Rothstein J."Toronto, May 20; Vancouver, June 12, 1998.
Administrative law — Judicial review — Certiorari — Judicial review of Commissioner's dismissal of appeal from Adjudication Board's finding applicant should resign or be dismissed for disgraceful conduct bringing discredit to RCMP — Witness identifying applicant as man seen climbing backyard fence, masturbating in street, but not absolutely certain — No criminal charges laid, but internal investigation conducted — At applicant's request, Adjudication Board taking view of area in presence of applicant, counsel — Applicant given opportunity to add to record with respect to view — Board noting discrepancies between description of offender, applicant; frailty of identification evidence; other circumstantial evidence; applicant's demeanour at hearing — Concluding identification sufficiently clear, convincing to satisfy it on balance of probabilities applicant responsible for committing acts proven — External Review Committee (ERC) finding Board failed to adequately consider problems with identification evidence — Commissioner confirming Board's decision — Application dismissed — Board neither ignoring nor misunderstanding evidence, rule of law — Required to weigh evidence, make determination based on balance of probabilities, on basis of clear, cogent evidence — Final determination depending on subjective reaction of Board, ERC, Commissioner — Commissioner not erring in subjective appreciation of evidence — Board disbelieved applicant, causing it to put aside applicant's evidence — Board applying appropriate framework, analysis in arriving at conclusion witness's evidence sufficiently clear, convincing to prove identification — Procedural fairness not requiring tribunal to disclose ongoing observations with respect to evidence as tendered.
Evidence — Judicial review of RCMP Commissioner's dismissal of appeal from Adjudication Board's finding applicant should resign or be dismissed for disgraceful conduct bringing discredit to RCMP — Applicant identified, but not with absolute certainty, as man seen climbing backyard fence, masturbating in street — No criminal charges laid, but internal investigation conducted — Adjudication Board taking view of area where incident occurred in presence of applicant, counsel — As result of view, Board doubting applicant's explanation for presence in area — Where tribunal taking view, not to gather evidence, but to understand evidence submitted, entitled to make observations inconsistent with evidence adduced by parties.
RCMP — Judicial review of Commissioner's dismissal of appeal from Adjudication Board's finding applicant should resign or be dismissed for disgraceful conduct bringing discredit to RCMP — Applicant identified as man seen climbing backyard fence, masturbating in street — External Review Committee finding Board failed to adequately consider problems with identification evidence — Commissioner confirming Board's decision — Royal Canadian Mounted Police Act, s. 45.16(6) requiring Commissioner to give reasons for not acting on ERC's findings — Not requiring Commissioner to address individually every finding made by ERC — Commissioner's reasons reviewing evidence, Board's and ERC's findings, explaining why Board's decision preferred over ERC's recommendation — Meeting standard imposed by s. 45.16(6) — Commissioner entitled to decide not to act on ERC's recommendations — Decision not reviewable unless error of type referred to in Federal Court Act, s. 18.1(4) disclosed.
This was an application for judicial review of the RCMP Commissioner's dismissal of the applicant's appeal from a decision of an Adjudication Board finding that the applicant had conducted himself in a disgraceful manner that brought discredit to the RCMP, and that the applicant should resign or, in default, be dismissed from the Force. The police received a report that a man had been seen attempting to climb a fence into a private backyard, and later masturbating in the street. The man was described as a white male, with dark hair, receding hairline, and 5 feet 6 or 9 inches tall, wearing an army jacket. The police arrived on the scene within three to five minutes and found the applicant nearby. The applicant is a white male, 6 feet tall, and had been wearing a green hooded army or marine jacket and black pants. The witness was asked to look at the applicant, who was with the police. She believed that the applicant was the man she had seen, but she was not absolutely certain. No criminal charges were laid against the applicant. In connection with an internal RCMP investigation of the matter, the witness identified the applicant from photographs showing only the head and shoulders of eight men with moustaches, but repeated that she was not absolutely certain. She also identified the applicant at the hearing before the Adjudication Board. At the applicant's request, the Board conducted a viewing of the area where the incident had taken place, with the applicant and his counsel present. When the hearing resumed the applicant was given an opportunity to "add to the record with respect to the view". As a result thereof, the Board doubted the applicant's explanation of what he had been doing when found by the police. It noted the discrepancies between the witness's description of the person she had seen and the actual physical characteristics of the applicant, and the frailty of the identification evidence. It also had regard to other circumstantial evidence, i.e. the top button of the applicant's pants was unbuttoned, there was no one else in the vicinity at the time, the applicant was walking rather than running after the person that he said he had observed near his car and, although an experienced police officer claiming not to have engaged in any impropriety, he did not ask the police why they were questioning him. Finally, the Board noted the applicant's demeanour at the hearing. Based on the totality of the evidence, the Board found the witness's identification sufficiently clear and convincing to satisfy it on a balance of probabilities that the applicant had committed the acts. The External Review Committee (ERC) found that the Adjudication Board had failed to take adequate account of the inconsistencies in the evidence relating to height and clothing, the inherent weakness of the witness's identification at the scene where the applicant was the only possible person to identify, that the photographs only showed the head and shoulders of the men, that the identification evidence at the hearing was rendered suspect as a result of the prior identification at the scene. The Commissioner nevertheless confirmed the Board's decision.
The issues were: (1) whether the evidence of identification of the applicant was capable in law of sustaining a finding against him; (2) whether the Commissioner complied with Royal Canadian Mounted Police Act, subsection 45.16(6), which requires that he give reasons for not acting on the ERC's recommendations; and (3) whether the Commissioner erred in not finding that the Adjudication Board wrongly considered evidence it had gathered from the viewing.
Held, the application should be dismissed.
(1) The standard of proof was the civil standard, and in a serious case with grave consequences such as this, the evidence should be "clear and cogent" or "clear and convincing".
The Board did not ignore or misunderstand the evidence. What was involved was a weighing of the eye witness and circumstantial evidence, and a determination based on proof on a balance of probabilities, on the basis of clear and cogent evidence. The final determination depended on the subjective reaction of the Adjudication Board, the ERC and ultimately the Commissioner. No objective definition or test was involved. The Board had regard to the frailty of identification evidence and the correct standard of proof. It did not ignore or breach any rule of law. The Commissioner did not err in his subjective appreciation of the evidence and in choosing to confirm the Board's decision.
The Adjudication Board disbelieved the applicant. This caused it to put aside the applicant's evidence. It then determined that, based on the totality of the evidence, it was satisfied that the witness's evidence was sufficiently clear and convincing to prove that it was the applicant whom she had seen. The Board applied the appropriate framework and analysis in arriving at its conclusion.
(2) Subsection 45.16(6) requires the Commissioner to give reasons for not acting on the ERC's findings or recommendations. This does not mean that the Commissioner must address individually every finding made by the ERC. It simply means that he must, in a reasonable manner, explain why he prefers the Board's decision over that of the ERC. The Commissioner's reasons met the standard required by subsection 45.16(6). He did review the evidence before the Adjudication Board and, in greater detail, both the findings of the Board and the ERC. The Commissioner's conclusions explain why he chose to act on the Board's decision as opposed to the ERC's recommendation. The Commissioner is entitled to decide not to act on the ERC's recommendations, and his decision is not reviewable unless an error of the type referred to in Federal Court Act, subsection 18.1(4) is disclosed.
The applicant also alleged that the Commissioner did not properly assess the law and facts himself as he was required to do. The appeal before the Commissioner was not a trial de novo. In determining whether he was satisfied with the findings of the Adjudication Board, he had to consider the record before the Board, the Board's findings and the ERC's recommendations, as well as the submissions made to him. On the basis of the material before him, which his decision discloses he considered, the Commissioner was satisfied with the Board's decision and confirmed it. That process complied with the legislative scheme.
(3) Where a tribunal conducts a view, not to gather its own evidence but to better understand the evidence being submitted, it is entitled to rely on its observations of matters inconsistent with the evidence adduced by the parties. The Board was entitled to make the observations it made during the viewing and to rely thereon in rejecting the credibility of the applicant's evidence.
Procedural fairness does not require a tribunal to disclose its ongoing observations with respect to the evidence as it is tendered. If the Board had formed its opinion based on its consideration of a photograph that had been placed in evidence, it would not have been incumbent on it to disclose its observations to the applicant at the hearing in order that he might make further submissions on the point. Whether the Board's observations are the result of a view or a photograph introduced as evidence, the applicant would have been aware of what was before the Board and had the opportunity to make relevant representations. The Board was not obliged to disclose its preliminary observations to the applicant to enable him to attempt to dispel them any more than any other consideration or impression it gathered from any other evidence it heard or saw. There was no error with respect to the viewing.
statutes and regulations judicially considered
Criminal Code, R.S.C., 1985, c. C-46, s. 686(1) (as am. by S.C. 1991, c. 43, s. 9).
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4) (as enacted by S.C. 1990, c. 8, s. 5).
Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, s. 45.14(3) (as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16), 45.16(1) (as enacted idem), (6) (as enacted idem).
cases judicially considered
applied:
International Forest Products Ltd. and I.W.A.—Canada Loc. 1-71, Re (1995), 51 L.A.C. (4th) 85 (B.C.L.A.B.); Meyers v. Government of Manitoba & Dobrowski (1960), 26 D.L.R. (2d) 550; 33 W.W.R. 461 (Man. C.A.); Calgary & Edmonton Railway Co. v. MacKinnon (1910), 43 S.C.R. 379; 11 C.R.C. 32; R. v. Malcolm (1993), 13 O.R. (3d) 165; 81 C.C.C. (3d) 196; 21 C.R. (4th) 241; 63 O.A.C. 188 (C.A.).
considered:
Rex v. Smierciak, [1946] O.W.N. 871; [1947] 2 D.L.R. 156; (1946), 2 C.R. 434; 87 C.C.C. 175 (C.A.); R. v. Miaponoose (1996), 30 O.R. (3d) 419; 110 C.C.C. (3d) 445; 2 C.R. (5th) 82; 93 O.A.C. 115 (C.A.); R. v. Tat (1997), 35 O.R. (3d) 641; 117 C.C.C. (3d) 481; 14 C.R. (5th) 116; 103 O.A.C. 15 (C.A.); Regina v. Cooper (Sean), [1969] 1 Q.B. 267 (C.A.); London General Omnibus Company v. Lavell, [1901] 1 Ch. 135 (C.A.).
referred to:
Gilbert v. Brown (1910), 15 O.W.R. 673 (C.A.); Chambers v. Murphy, [1953] 2 D.L.R. 705 (Ont. C.A.); C & B Vacation Properties Inc. v. Canada, [1995] F.C.J. No. 1145 (T.D.) (QL); Buckingham v. Daily News, Ltd., [1956] 2 All E.R. 904 (C.A.); Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105; (1980), 110 D.L.R. (3d) 311; [1980] 3 W.W.R. 125; 18 B.C.L.R. 124; 31 N.R. 214; Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205; (1986), 18 Admin. L.R. 243; 66 N.R. 8 (C.A.).
authors cited
Mullan, David Administrative Law, 3rd ed. Scarborough, Ont.: Carswell, 1996.
APPLICATION for judicial review of the RCMP Commissioner's dismissal of an appeal from the Adjudication Board's finding that the applicant should resign or be dismissed from the RCMP for disgraceful conduct that had brought discredit to the Force, on the grounds that the identification evidence was incapable of sustaining a finding against the applicant; that the Commissioner had not complied with Royal Canadian Mounted Police Act, subsection 45.16(5); or that the Board had wrongly considered evidence gathered from a view of the area where the incident giving rise to proceedings against the applicant had taken place. Application dismissed.
counsel:
F. Paul Morrison and Matthew R. Snell for applicant.
Robert H. Jaworski for respondent.
solicitors:
McCarthy Tétrault, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Rothstein J.:
Issue
This is a judicial review of a decision of the Commissioner of the Royal Canadian Mounted Police (RCMP) dated February 27, 1997 wherein he dismissed the applicant's appeal from a decision of an Adjudication Board finding that the applicant had conducted himself in a disgraceful manner that brought discredit to the RCMP and that the applicant should resign or, in default, be dismissed from the RCMP. The Commissioner confirmed the order of the Adjudication Board.
On this judicial review there are three issues raised by the applicant.
1. Was the evidence of identification of the applicant capable in law of sustaining a finding against him?
2. Did the Commissioner comply with subsection 45.16(6) of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 [as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16], which requires that he gives reasons for not acting on the findings and recommendations of an External Review Committee (ERC) which recommended that the applicant's appeal to the Commissioner from the Adjudication Board be allowed?
3. Did the Commissioner err in not finding that the Adjudication Board wrongly took into account evidence gathered by the Board when it viewed the area where the incident giving rise to the proceedings against the applicant took place?
Evidence before the Adjudication Board
On the evening of March 30, 1994, while walking on a sidewalk on Ulster street in Toronto, Elizabeth Ann Hutcheon, a university student, saw a man climbing the fence to the backyard of the premises in which she was living. They were about four car lengths apart. They stared at each other for about 10 seconds. His stare was aggressive or deliberate. She felt uncomfortable. He did not go over the fence. She proceeded to a convenience store at Bathurst and Ulster streets and was in the store for a couple of minutes.
When she left the store she looked up Ulster street and saw no one. On her way back home, she saw the same man, on the other side of Ulster street, his jacket over his head but with his face exposed, with his pants down below his knees, masturbating. They were about two car lengths apart and he was looking at her. She looked at him for two or three seconds and when he took a step towards her she rushed to her home and told her roommate what had happened.
The roommate called the police. On the telephone, Ms. Hutcheon gave a description of a white male, dark hair, receding hairline, and taller than she was"5 feet 6 inches or 5 feet 9 inches (she did not remember which) wearing an army jacket (she did not remember if she said it was grey or green). The police car patrolling in the area received a call at 8:52 p.m. The police arrived at the scene in three to five minutes. They saw the applicant at the intersection of an alleyway with Ulster street near where Ms. Hutcheon lived.
The applicant testified that he had been at a friend's house and that they had consumed two bottles of wine between them. He drove back to his home on Palmerston Boulevard near where Ms. Hutcheon lived. He says he sat on his back porch before going into his house because he was feeling ill. While sitting, he observed a man in the alley looking at his car. He yelled at the man and then went into the alley to identify him. After looking at his car, the applicant walked down the alley to look for the man. The police saw the applicant at the intersection of the alley and Ulster street and asked him to identify himself.
When the police interviewed Ms. Hutcheon she described the person she saw as a white male, 5 feet 6 inches, hooded jacket, 40 years old, grey or green pants, partially balding. The applicant is a white male, approximately 6 feet tall, and had been wearing a green hooded army or marine jacket and black pants.
The police then told Ms. Hutcheon that they had a man who matched the description that she provided and asked her to go outside to look at him. Initially she did not want to go but eventually did so. They pointed out the applicant, who was with the police. She was about a hundred feet away. Her first impression was that the applicant was the person she had seen climbing the fence and masturbating but she was concerned about the consequences to him if he was a family man. With her roommate's encouragement she moved closer and at this location, believed that the applicant was the person she had seen. The police officer stressed that she had to be one hundred percent certain to make a positive identification. She told the police she could not be one hundred percent sure.
No criminal charges were laid against the applicant.
On May 11, 1994, in connection with an internal RCMP investigation of the matter, Ms. Hutcheon was asked to identify the applicant from photographs of eight men with moustaches. The applicant had a moustache, which Ms. Hutcheon had not mentioned in her original description of the person she had seen. The photographs, showing only the head and shoulders of the men, did not disclose their height.
Before being asked to identify the applicant from the photographs she was told to put out of her mind the attempts to have her identify the applicant immediately after the incident. Ms. Hutcheon identified the applicant from the photographs but said she could not be "absolutely certain". She also identified the applicant at the hearing before the Adjudication Board.
Was the Identification Evidence Capable in Law of Sustaining a Finding Against the Applicant?
The applicant relies on Rex v. Smierciak, [1946] O.W.N. 871 (C.A.); R. v. Malcolm (1993), 13 O.R. (3d) 165 (C.A.); R. v. Miaponoose (1996), 30 O.R. (3d) 419 (C.A.); and R. v. Tat (1997), 35 O.R. (3d) 641 (C.A.) to argue that Ms. Hutcheon's evidence was not capable of sustaining a reliable identification for purposes of this case. These cases point out the inherent frailty of identification evidence, e.g. whether the person was known to the witness, and the adequacy of the lighting and the opportunity to observe. Other difficulties would include identification based on "a one person line-up" at the scene and subsequent identification possibly not based on what was actually seen but rather on a previous flawed identification process. The cases stress the care which must be taken by police, the Crown, and the criminal courts to ensure the integrity of the identification process and fairness to an accused person.
Malcolm, Miaponoose and Tat all deal with appellate review of criminal convictions under subparagraph 686(1)(a)(i) of the Criminal Code [R.S.C., 1985, c. C-46 (as am. by S.C. 1991, c. 43, s. 9)], which provides:
686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
Some explanation of the process of analysis under subparagraph 686(1)(a)(i) is provided by Finlayson J.A. in Malcolm, at page 174:
The cases I have referred to emphasize the limitations in appellate jurisdiction, but are not that helpful in providing guidance as to when the jurisdiction should be exercised. I find some comfort in English decisions which point out that in the final analysis, the reaction of the court as to when an injustice has been done is a subjective one. While the language of the English Court of Appeal's empowering statute is different than our Code, the court asks itself what amounts to the same question: Is the verdict unsafe or unsatisfactory? I think that as appellate judges we will be expected to ask ourselves a similar question notwithstanding the absence of reversible error on the part of the trial judge.
Finlayson J.A. [at page 175] then quotes from Regina v. Cooper (Sean), [1969] 1 Q.B. 267 (C.A.), at page 271:
However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. That means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it. [Emphasis added by Finlayson J.A.]
These observations highlight that:
1. what is at issue in these cases is appellate jurisdiction,
2. what is involved is a subjective rather than an objective question, and
3. the observations are made in the criminal context of proof beyond a reasonable doubt.
In this case, the Adjudication Board found (page 16):
In his summation, S/Sgt. Goodman provided the Board with a comprehensive survey of the law applicable to identification evidence as applied to criminal proceedings. We are satisfied the same principles should apply to these proceedings, recognizing though that factual proof is to be established on a balance of probabilities rather than beyond a reasonable doubt. We also acknowledge that the degree of probability required to discharge the burden of proof on a balance of probabilities is a flexible standard, and that the gravity of the consequences of a finding is one of the main considerations affecting whether a given issue has been proved to the reasonable satisfaction of the Board. Based on the circumstances of this case, the potential consequences of a finding of contravention are such that identification ought to be established on clear and convincing evidence.
Identity may be proved by direct and/or circumstantial evidence (P. McWilliams, "Canadian Criminal Evidence", 3rd ed. at page 18-1), and the circumstances of an eye witness identification goes to weight. Factors affecting the weight include: the opportunity to observe, (e.g., the duration of the observation); the witness' powers of observation (e.g., eyesight); the lighting conditions; the witnesses' actual recollection and their ability to relate recollection; and their sincerity. In making this assessment, we must not only assess Ms. Hutcheon's credibility, but we must also examine the identification process to determine whether it was so flawed so as to render the result unreliable; i.e., that the witness was honest, but mistaken.
Before this Court both parties agreed that the principles relating to identification evidence in the cases cited by the applicant are relevant to this case. I also agree that they are relevant to identification evidence in civil proceedings. Both parties also agree that the standard of proof is the civil standard and that in a serious case with grave consequences such as the one involving the applicant, the evidence should be "clear and cogent" or "clear and convincing". They are correct on this issue. The appropriate standard is described by David Mullan in Administrative Law , 3rd ed., Scarborough, Ontario: Carswell, 1996, at paragraph 166:
The burden or standard of proof before an administrative tribunal is generally that of a balance of probabilities though a range exists within that standard. Thus, serious professional disciplinary charges require "clear and convincing evidence" of guilt, particularly if the allegations involve conduct that is also criminal. [Footnotes omitted.]
The Adjudication Board examined the discrepancies between Ms. Hutcheon's description of the person she saw and the actual physical characteristics of the applicant. One of the most significant discrepancies was her belief that the applicant was 5 feet 6 inches tall when he is in fact almost 6 feet tall. The Adjudication Board noted her evidence that she was not particularly good at estimating distance, that she did not have any reference points to estimate height, that when she first saw the applicant he was on the fence climbing and that when she saw him masturbating he was slightly crouched over (Ms. Hutcheon's evidence was that the person's head was bent). She also said the person she saw was taller than she was and she could not understand why she would have described him as 5 feet 6 inches when that is also her height.
In addition to noting these discrepancies and the frailty of the identification evidence, the Adjudication Board had regard to other circumstantial evidence: the top button on the applicant's pants was unbuttoned, there was no one else in the vicinity at the time; the applicant did not ask the police to help him look for the person who he claimed he saw near his car; he was walking rather than running after the person he said he observed near his car; he had made no effort to connect the person he was looking for with the person the police were looking for; he rang doorbells at an apartment while the police were there, explaining that he thought the person he was looking for might have gone up the fire escape and he wanted to get the occupant's permission before going up and the police stopped him from going up the fire escape; and that as an experienced police officer claiming not to have engaged in any impropriety, he did not ask the police why they were questioning him.
The Adjudication Board found that the applicant's story was "improbable, bordering on the bizarre". The Board also noted the applicant's demeanour at the hearing before it, that he made little or no eye contact with the Board and was constantly looking downwards. The applicant's demeanour, taken together with the circumstantial evidence and the discrepancies in the applicant's testimony, caused the Board to reject the applicant's version of the facts.
At page 24, the Adjudication Board concluded:
. . . we find that Ms. Hutcheon's identification of Cst. Jaworski, while not procedurally perfect as we would have hesitated making an identification finding only on the photo lineup, or only on identification at the hearing, was, based on the totality of the evidence, sufficiently clear and convincing to satisfy us on a balance of probabilities of the identity of Cst. Jaworski as the member responsible for committing the acts proven.
We make this finding after exercising due caution and closely examining the circumstances in which the identification was made, knowing that a finding of contravention would be made in reliance on the accuracy of the identification, and recognizing that it is possible for an otherwise honest witness, such as we found Miss Hutcheon to be, to make a mistake.
The ERC, in a strongly worded and detailed recommendation, was of the opinion that the evidence in this case fell far short of the clear and cogent standard. The ERC was of the view that the Adjudication Board failed to take adequate account of a number of considerations: the inconsistencies in the descriptive evidence of Ms. Hutcheon relating to the clothing and height of the applicant; that she did not see the face of the person masturbating; the inherent weakness of Ms. Hutcheon's identification evidence at the scene where the applicant was the only possible person to identify; that the photographs only showed the head and shoulders of the men; that the identification evidence at the hearing was rendered suspect as a result of the prior identification at the scene; and that the Adjudication Board's finding that it was a significant coincidence that the applicant was the only one in the area did not take into consideration the proximity of the area to a busy street (i.e. Bathurst Street) and that a person could have easily left the area before the police arrived.
The Commissioner confirmed the decision of the Adjudication Board. In his decision the Commissioner states:
It is important to remember that the burden of proof is on a balance of probability and not beyond a reasonable doubt. Accordingly, the Board carefully weighed all the evidence, both eyewitness and circumstantial, and concluded that no reasonable conclusion could be reached but that the Appellant was responsible. As to the Board's conclusion that the Appellant lacked credibility, that conclusion was based on the observed behaviour of the Appellant and the reasonableness of his story as well as his behaviour with the investigating police officers. Taken together, the Board, in my view, reasonably concluded that the Appellant lacked credibility.
Both the ERC and the Adjudication Board reviewed the evidence meticulously and each was entitled to reach the conclusion it did. If it could be demonstrated that the Adjudication Board ignored evidence or misunderstood the evidence, it would have erred and the Commissioner in turn would have erred in confirming the Adjudication Board's decision. That has not been demonstrated. What is involved is a weighing of the eye witness and circumstantial evidence, and a determination based on proof on a balance of probabilities, on the basis of clear and cogent evidence. The final determination, as Finlayson J.A. pointed out in Malcolm, will depend on the subjective reaction of the Adjudication Board, the ERC and ultimately the Commissioner. No objective definition or test is involved. The Adjudication Board had regard to the frailty of identification evidence and the correct standard of proof. It did not ignore or breach any rule of law. The Commissioner cannot be said to have erred in his subjective appreciation of the evidence and in choosing to confirm the decision of the Adjudication Board.
As part of the applicant's argument on this point, he submitted that the Adjudication Board erred in law when, at the outset of its analysis, it stated at page 15:
In assessing the conflicting testimony, the Board must choose between the evidence of Miss Hutcheon and the evidence of Cst. Jaworski, i.e., whether to believe Miss Hutcheon's identification of Cst. Jaworski as the individual responsible for the incident she saw, or whether to believe Cst. Jaworski that it was not him.
The applicant argued that the test is not whether to believe Ms. Hutcheon or the applicant but whether Ms. Hutcheon's identification evidence was sufficiently clear and cogent to satisfy the onus of proving that the applicant was indeed the person she saw.
I agree that the Board's mere disbelief of the applicant does not mean that the opposite of what he said was true or that the evidence of Ms. Hutcheon was sufficient to satisfy the clear and cogent standard. See for example Gilbert v. Brown (1910), 15 O.W.R. 673 (C.A.), at page 679. In civil cases such as this, I think the proper approach is that set out in International Forest Products Ltd. and I.W.A.—Canada Loc. 1-71, Re (1995), 51 L.A.C. (4th) 85 (B.C.), at page 90 by Arbitrator Kelleher (cited by the ERC at page 15 of its reasons):
. . . a credibility finding against a witness does not mean that the witness's denial constitutes evidence that has occurred. Disbelieved evidence must be put aside. The issue then is whether the remainder of the evidence satisfies the onus carried by the employer.
In this case, the Adjudication Board disbelieved the applicant. Its decision clearly indicates that this caused it to put aside the applicant's evidence. It then determined that, based on the totality of the evidence, it was satisfied that Ms. Hutcheon's evidence was sufficiently clear and convincing to prove that it was the applicant whom she saw. At page 24 of its decision the Adjudication Board states:
While these observations by themselves are not conclusive of anything, when added to our other observations, we concluded that there was nothing about Cst. Jaworski's evidence that would encourage us to accept as true his version of the facts. Instead, we find that Ms. Hutcheon's identification of Cst. Jaworski, while not procedurally perfect as we would have hesitated making an identification finding only on the photo lineup, or only at the identification at the hearing, was, based on the totality of the evidence, sufficiently clear and convincing to satisfy us on a balance of probabilities of the identity of Cst. Jaworski as the member responsible for committing the acts proven.
The Adjudication Board applied the appropriate framework and analysis in order to arrive at its conclusion.
Did the Commissioner's Decision Comply with Subsections 45.16(6) and 45.14(3) of the Royal Canadian Mounted Police Act?
The applicant says that the Commissioner was obliged to "grapple" with the findings of the of ERC and address them explaining why he disagreed. The applicant's argument is based on subsection 45.16(6) of the Royal Canadian Mounted Police Act which provides:
45.16 . . .
(6) The Commissioner is not bound to act on any findings or recommendations set out in a report with respect to a case referred to the Committee under section 45.15, but if the Commissioner does not so act, the Commissioner shall include in the decision on the appeal the reasons for not so acting.
Subsection 45.16(6) requires the Commissioner to give the reasons for not acting on the findings or recommendations of the ERC. This does not mean that the Commissioner must address individually every finding or conclusion made by the ERC. It simply means that he must, in a reasonable manner, explain why he prefers the decision of the Adjudication Board over that of the ERC.
Detailed reasons by an appeal tribunal are to be preferred because they engender greater confidence that the tribunal carefully analysed each of the issues before it. However, the Commissioner's reasons do not fall short of the standard required by subsection 45.16(6). In his decision the Commissioner did review the evidence before the Adjudication Board and, in greater detail, both the findings of the Adjudication Board and the ERC. Although the Commissioner's conclusions are brief, they do explain why he chose to act on the Adjudication Board's decision as opposed to the ERC's recommendation:
The committee rightfully challenged each part of the evidence, which if taken alone would not meet the standard of clear and convincing proof set out by the Board. In my view, however, the Board assessed the totality of the evidence including its shortcomings, and was convinced that in its totality, no other reasonable conclusion could be reached other than Cst. Jaworski was the individual responsible for the act in question.
It is important to remember that the standard of proof is on a balance of probability and not beyond a reasonable doubt. Accordingly, the Board carefully weighed all the evidence, both eyewitness and circumstantial, and concluded that no other reasonable conclusion could be reached but that the Appellant was responsible. As to the Board's conclusion that the Appellant lacked credibility, that conclusion was based on the observed behaviour of the Appellant and the reasonableness of his story as well as his behaviour with the investigating police officers. Taken together, the Board, in my view, reasonably concluded that the Appellant lacked credibility.
While the Commissioner might have provided greater detail in arriving at his conclusion, it is not at all clear that doing so would have served any useful purpose. The sole issue was whether the applicant was the person whom Ms. Hutcheon saw. That determination involved a weighing of the eye witness identification evidence and circumstantial evidence. The Commissioner acknowledged that, if taken alone, the parts of the evidence challenged by ERC would not meet the relevant standard"i.e. that of clear and convincing proof on a balance of probabilities. The Commissioner concluded that the Adjudication Board's assessment of the totality of the evidence, even taking account of its shortcomings, led the Board to the correct conclusion. It is clear he had in mind the correct standard of proof, the frailty of the eye witness identification evidence, the totality of the evidence that the applicant was the person involved in the incident and the lack of credibility of the applicant's story. Clearly, these are the reasons for the Commissioner's decision not to act upon the recommendations of the ERC.
One might expect that when the Commissioner receives a strongly worded detailed recommendation from the ERC it should carry significant weight. However, the Commissioner is entitled to decide not to act on the findings or recommendations of the ERC and his decision is not reviewable unless an error of the type referred to in subsection 18.1(4) of the Federal Court Act, R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5], is disclosed. I cannot see any such error here.
The applicant also says that the Commissioner did not properly assess the law and the facts himself as he was required to do. The applicant relies on subsection 45.14(3) [as enacted by R.S.C., 1985 (2nd Supp.), c. 8, s. 16]:
45.14 . . .
(3) An appeal lies to the Commissioner on any ground of appeal, except that an appeal lies to the Commissioner by an appropriate officer in respect of a sanction or an action referred to in paragraph (1)(b) only on the ground of appeal that the sanction or action is not one provided for by this Act.
However, subsection 45.16(1) [as enacted idem] provides:
45.16 (1) The Commissioner shall consider an appeal under section 45.14 on the basis of
(a) the record of the hearing before the adjudication board whose decision is being appealed,
(b) the statement of appeal, and
(c) any written submissions made to the Commissioner,
and the Commissioner shall also take into consideration the findings or recommendations set out in the report, if any, of the Committee or the Committee Chairman in respect of the case.
Clearly, the appeal before the Commissioner is not a trial de novo. He does not hear witnesses or receive new evidence. It is an appeal on the record before the Adjudication Board. He is to determine whether he is satisfied with the findings of the Adjudication Board. In doing so he is to consider the record before the Board, the findings of the Board and the recommendations of the ERC as well as the submissions made to him. On the basis of the material before him, which his decision discloses he considered, the Commissioner was satisfied with the decision of the Adjudication Board and confirmed it. That process is in compliance with the legislative scheme.
The Viewing
The applicant also challenges the Commissioner's decision on the ground that the Adjudication Board improperly treated as evidence information it gathered from a viewing of the area where the incident took place. At the request of the applicant, the Board conducted a viewing of the site and surroundings and as a result of the viewing, found it was doubtful that from his porch, the applicant could, as he told the police, have seen the clothing or estimated the weight of the person he alleged was looking at his car. This raises the question of whether the Board took into account information which is not properly admissible in the proceedings before it, or at least, whether the Board was obliged to provide the applicant with the opportunity to respond to what it found from the viewing.
The applicant told the police that the individual looking at his car was about 6 feet tall, wore dark clothing and weighed about 180 pounds. On this point the applicant testified before the Adjudication Board:
Q. And you could see him through your fence, or over your fence, or your fence blocks your view?
A. Yes, you could see. Yes. If my vehicle is sitting there, you'll be able to"sit where I'm sitting and you'll be able to see somebody standing at the car, yes.
After the viewing, the Chairman of the Board read into the record the following:
There was a view taken, and the participants included Cst. Jaworski and his representative S/Sgt. Goodman, and Sgt. Raid and S/Sgt. Dickson, and the three Board Officers. And we attended at the front of 405 Palmerston Street, and walked south on Palmerston to the corner Palmerston and Ulster, and then north up the alley between Palmerston and Markham into the back entrance way of 405 Palmerston. Then back out the same alley south and east along Ulster, stopping at the corner of the southwest corner of Ulster and Markham, and also the southeast corner of Markham and Ulster. Then we continued east along Ulster to the corner of Bathurst, and then back from Bathurst westward along Ulster to Palmerston, or almost Palmerston, halfway between Palmerston and Markham. And the total duration of time spent was approximately 15 minutes.
He then asked the parties:
Anything any of the parties want to add to the record with respect to the view.
S/Sgt. A. J. Goodman: That is fine, sir.
The Chairman: Thank you.
S/Sgt. Goodman: Now, it is your . . .
S/Sgt. A. J. Goodman: That is the case for the defence, sir.
At the hearing, the Board did not elaborate further on its impression from the viewing. In its decision, however, the Board did rely on its viewing with respect to its credibility assessment of the applicant. The Board stated, at page 22:
Cst. Jaworski testified that the person who was apparently looking into his car was approximately six feet tall and had dark clothing. During the Board's view we observed a high, solid wooden fence at the back of the Jaworski property, behind which were the parking spaces in the alleyway. We observed while standing on Jaworski's raised back porch, that if it was possible to see anyone at all in the alleyway, particularly where the cars would have been parked, it would have been possible to see only the head of a relatively tall person. It would have therefore been possible to estimate the height of someone six feet tall, but we would have been surprised to learn it was possible to observe the colour of anyone's clothing or to estimate their build or approximate weight. Cst. Jaworski testified that he did not later see this person in the alleyway, and from which this clothing and other description could have been based. Cst Jaworski was not cross-examined on these issues, consequently the Board was not able to clarify what "clothing" he was referring to, nor as to how he was able to estimate the persons weight. We noted that Cst. Diaz had recorded, a slightly more detailed description of the suspect, including the suspect's approximate weight at 180 lbs., but also "clothing unknown". These differences raised some doubt in the Board as to Cst. Jaworski's recollection of the suspects sighting, or in fact whether this suspect even existed at the relevant time.
There is divided jurisprudence as to use of viewing evidence. On this point the ERC elaborated, at page 45 of its recommendation:
Of more immediate concern is the Board's willingness to find evidence during the view which is directly in contradiction to evidence at the hearing. There are legal precedents which throw into doubt a tribunal's power to accept evidence of any kind during a view. On this interpretation, a view by a tribunal is for the purpose of understanding the questions at issue and to follow and apply the evidence, not to gather evidence or to reject courtroom evidence based on contradictory knowledge gained by the view. The New Brunswick Supreme Court (Appeal Division) has held that it is improper for an arbitrator who took a view to "should not descend into the arena as a participant . . . . acquiring extrinsic evidence not introduced by the parties". In Ontario it has been categorically stated in an arbitration that the purpose of a view is not to gather or obtain evidence. As recently as August 1995, the Federal Court (Trial Division) has cited with approval the English case law which is the principal origin of restrictive interpretations applied to views.
I acknowledge, however, that the foregoing position has been vigorously attacked as unjustifiable by at least one commentator. Further, in Alberta, it has been held by an arbitrator that a view is evidence in every sense of the word and that a trier of fact is free to making findings of fact based on his or her observations during the view. This opinion mirrors the general position of the courts of certain western provinces on the issue. [Footnotes omitted.]
The ERC concluded:
Considerations of fairness at the hearing cannot be ignored. Without pronouncing entirely on this difficult subject, I have strong reservations about at least one aspect of the procedure before the Board. In my opinion, where evidence gathered at a view is used by the Board for the specific purpose of contradicting evidence given under oath, the Board's contrary observations ought at least to have been divulged as part of its account of the view. The Board's failure to do so caused an unfairness to the appellant.
The English case law referred to by the ERC is London General Omnibus Company v. Lavell, [1901] 1 Ch. 135 (C.A.) where Lord Alverstone states, at pages 138-139:
It is quite true that by rule 4 of Order L. it is provided that the judge may "inspect any property or thing concerning which any question may arise" in the action; but I have never heard it said, and, speaking for myself, I should be very sorry to endorse the idea, that the judge is entitled to put a view in the place of evidence. A view, as I have always understood, is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence, and to apply the evidence.
This statement of the law has been accepted by the Ontario courts (see, for example, Chambers v. Murphy, [1953] 2 D.L.R. 705 (Ont. C.A.)) and was held by this Court to articulate the proper purpose of a view in C & B Vacation Properties Inc. v. Canada, [1995] F.C.J. No. 1145 (T.D.) (QL).
In Meyers v. Government of Manitoba & Dobrowski (1960), 26 D.L.R. (2d) 550, a majority of the Manitoba Court of Appeal took a different approach. Schultz J.A., also relying on English Court of Appeal jurisprudence (Buckingham v. Daily News, Ltd., [1956] 2 All E.R. 904), stated, at pages 558-559, that a view taken by a tribunal is similar to an exhibit tendered as evidence:
I think it is a matter of everyday practice in our Courts that scale models, or similar objects, are tendered and accepted as real evidence. Such evidence may offer stronger and more convincing proof of the fact claimed than the oral evidence of witnesses. The Judge who views them in the court room is in no different position there than when, with all the necessary safeguards and conditions met, he views them outside the court room. When, as in the case of a road, it is impossible to bring the object into the court room and the trial Judge takes a proper view outside the court room, he is entitled to consider such a view as evidence. To hold otherwise seems to me unrealistic, for what better evidence could be offered to Judges than what they can see with their own eyes? This is so whether the evidence is produced in Court or at the scene of an accident.
As well, the Supreme Court of Canada in Calgary & Edmonton Railway Co. v. MacKinnon (1910), 43 S.C.R 379, upheld a decision of arbitrators in an expropriation proceeding who, after viewing the property in question, rejected the evidence of several expert witnesses and came to a conclusion respecting the value of the property in question "from their own judgment and a few actual facts submitted in evidence". Anglin J. stated, at pages 384-385:
But while the award of the majority may not be happily worded and might, on cursory perusal, give the impression that, in reaching their conclusion, they had wholly disregarded the evidence, a careful consideration of the award makes it reasonably clear that what they intended to state was that the inspection of the property had satisfied them that certain parts of the evidence adduced could not be relied upon while other parts might safely be made the basis of their adjudication. A proper appreciation of the value of the evidence is always a legitimate object of a view and, if it leads to the discrediting and the consequent rejection of certain portions of the testimony, I am not prepared to say that undue weight or effect has therefore been given to the result of the view.
The Manitoba Court of Appeal in Meyers, per Schultz J.A. at page 555, points out that a judge in taking a view must be satisfied that the view and the conditions in which it is taken will be fair to all the parties concerned, including particularly the opportunity to present further evidence. Certainly, if a tribunal, through its own means, obtains relevant information without the knowledge of the parties and relies on that information in making its decision, it will have breached principles of natural justice and procedural fairness (see, for example, Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105, at pages 1115-1116; Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.)). A party is entitled to be made aware and to make representations and, indeed, give evidence with respect to extrinsic evidence that is obtained by a tribunal.
However, in my view, it would be going too far to state that where a tribunal conducts a view, not for the purpose of gathering its own evidence but to better understand the evidence being submitted, that the tribunal can never rely upon its own observations made at that viewing. Where a tribunal sees something inconsistent with the evidence adduced by the parties, it would be highly artificial to require that the tribunal ignore its observations and decide the issue based on evidence that it considers to be untrue. If a picture of the applicant's porch and fence had been placed in evidence it would have been open to the Adjudication Board to draw its own conclusion from the picture that the applicant could not have seen the clothing or the body build of the person alleged to have been looking at his car. Having regard to the dicta of Anglin J. in Calgary & Edmonton Railway Co. v. MacKinnon and Shultz J.A. in Meyers v. Government of Manitoba & Dobrowski, I am satisfied that the Board was entitled to make the observations it made during the viewing, and to rely on those observations, in rejecting the credibility of the applicant's evidence.
The second question arising in respect of the viewing is whether procedural fairness required the Board, once it made observations during the viewing, to disclose those observations to the applicant in order to give him an opportunity to respond.
In this case it was the applicant who requested that the viewing take place. He and his counsel attended the viewing. They saw or had the opportunity to see exactly what the Adjudication Board saw. Nothing was done behind the applicant's back. When the hearing resumed he was given an opportunity to "add to the record with respect to the view". Procedural fairness does not require a tribunal to disclose its ongoing observations with respect to the evidence as it is tendered. If the Board had formed its opinion based on its consideration of a picture of the applicant's porch and fence that had been placed in evidence, it would not have been incumbent on the Board to disclose its observations to the applicant at the hearing in order that he might make further submissions on the point. Whether the Board's observations are the result of a view or a photograph introduced as evidence, the applicant would have been aware of what was before the Board and had the opportunity to make relevant representations. The Board was not obliged to disclose its preliminary observations to the applicant to enable him to attempt to dispel them any more than any other consideration or impression it gathered from any other evidence it heard or saw.
There was no error with respect to the viewing.
Conclusion
The judicial review is dismissed.