A-999-87
John Samuel Fedoriuk (Applicant)
v.
Commissioner of the Royal Canadian Mounted
Police (Respondent)
INDEXED AS: FEDORIUK V. CANADA (COMMISSIONER OF THE
ROYAL CANADIAN MOUNTED POLICE)
Court of Appeal, Heald, Mahoney and Marceau
JJ.—Calgary, October 6; Ottawa, October 21,
1988.
Judicial review — Applications to review — RCMP officer
convicted of shoplifting Recommended for discharge as
unsuitable Standing Order describing ground of unsuitabil-
ity as when member involved in commission of offence of so
serious nature and in such circumstances as to significantly
affect proper performance of duties Discharge and Demo
tion Board finding lack of intent to commit offence mitigating
circumstance — Commissioner stating theft could not help but
significantly affect proper performance of duties — Standing
Order binding on Commissioner and requiring examination of
particular circumstances Decision confirming recommenda
tion for discharge set aside.
Estoppel — Issue estoppel — RCMP officer convicted of
shoplifting Subsequent internal proceedings resulting in
recommendation for discharge — Standing order describing
ground of unsuitability as member's involvement in commis
sion of offence of so serious nature and in such circumstances
as would seriously affect proper performance of duties
Whether conviction binding on civil tribunal — Issue estoppel
doctrine inapplicable — Abuse of process.
RCMP — Officer convicted of shoplifting — Recommended
for discharge as unsuitable — Standing order describing
unsuitability based on commission of criminal offence binding
on Commissioner Requiring consideration of particular
circumstances Erred in law in holding theft affecting proper
performance of duties in all cases.
This was an application to set aside the Commissioner's
decision confirming the recommendation that the applicant, an
RCMP officer convicted of shoplifting, be discharged. The
applicant's discharge was recommended on the ground of
unsuitability. Standing Order AM-53 stated the basis for dis
charge on such ground as the involvement of the member in the
commission of an offence of so serious a nature and in such
circumstances as to significantly affect the proper performance
of his duties. The Commissioner addressed this issue by stating
that theft by a member sworn to uphold the law could not help
but significantly affect the proper performance of his duty. He
also took the position that the Discharge and Demotion Board
had lacked jurisdiction to hear evidence concerning an issue
that had already been determined and should not have found a
lack of intent to be a mitigating circumstance, as theft had
already been established, including intent as a requisite element
of the offence. The issues were whether the Commissioner erred
in law in not considering the circumstances and whether issue
estoppel applied to prevent the consideration by civil tribunals
of the applicant's involvement in the commission of the offence.
Held, the application should be allowed.
Per Heald J.: Bulletin AM-53, promulgated as a Standing
Order, was designed to comply with the rules of natural justice
and procedural fairness and was binding on the Commissioner.
The plain language of the Bulletin required the Commissioner
to examine the particular circumstances of the commission of
the offence in each case, and to satisfy himself that the offence
was so serious as to significantly affect the performance of the
member's duties. That he did not, in this case, do so was
evidenced by his statement which revealed a belief that in all
cases, regardless of the circumstances, a breach of the law by a
member would automatically satisfy the requirements of the
Bulletin. This was further corroborated by his failure to refer to
the mitigating circumstances put forward by the applicant
before the Board of Review.
It was unnecessary to decide whether issue estoppel applied
because that doctrine related to the question of whether an
offence had been committed, which was not in issue in these
proceedings.
Per Mahoney J.: Although there was no question of issue
estoppel, there was a real question of abuse of process. A
conviction or acquittal on a criminal charge must be binding on
consequent disciplinary tribunals because such decisions are
based upon a higher standard of proof, that of proof beyond all
reasonable doubt.
Per Marceau J. (concurring in the result): The prior finding
of the Provincial Court as to the applicant's intent was not
irrevocably binding on the Board. It could only have been so
under the doctrine of "issue estoppel" or "abuse of process",
neither of which applied. Issue estoppel could not apply because
there was neither identity of parties, nor identity of issues. This
was not a case of criminal proceedings subsequent to an
acquittal, where the doctrine of issue estoppel would be more
readily accepted as a guarantee against double jeopardy.
Where civil proceedings follow a criminal conviction, the
danger of abuse of process arises. However, there was no abuse
of process here as "intent" is not a material fact which can be
the object of direct misapprehension, but a state of mind which
can only be inferred from outward circumstances, involving
subjectivity.
Even if the Provincial Court's finding were binding, the
Discharge and Demotion Board was under a duty to look into
the circumstances of the case and assess their significance in
regard to the person's guilt and character. It was not required
to verify the validity of the conviction, but to use its own
judgment and make the recommendation which it thought
appropriate. Although an acquittal would preclude the Com
missioner from looking into the facts of the case, a conviction
would not have the corresponding preclusive effect because the
principles involved and the public interest at stake are not
identical. The constitutional safeguards available to a person
accused of a criminal offence must not be circumvented by
bringing an action in another forum. However, when a person is
convicted of an offence, the interest of the individual requires
that at least a degree of discretion be left to the tribunal. The
Commissioner erred in law in rejecting the findings of fact of
the Discharge and Demotion Board.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
CASES JUDICIALLY CONSIDERED
APPLIED:
Hunter v Chief Constable of West Midlands, [1981] 3
All ER 727 (H.L.).
CONSIDERED:
Lutes v. Commissioner of the Royal Canadian Mounted
Police, [1985] 2 F.C. 326; (1985), 61 N.R. 1 (C.A.); Van
Rooy v. M.N.R., [1989] 1 F.C. 489 (C.A.).
REFERRED TO:
R. v. Riddle, [1980] I S.C.R. 380; Re Del Core and
Ontario College of Pharmacists (1985), 19 D.L.R. (4th)
68 (Ont. C.A.); Demeter v. British Pacific Life Insurance
Co. and two other actions (1983), 150 D.L.R. (3d) 249
(Ont. H.C.).
AUTHORS CITED
de Smith's Judicial Review of Administrative Action, 4th
ed., by J. M. Evans, London: Stevens & Sons Limited,
1980.
Howard, "Res Judicata in the Criminal Law" (1961) 3
Melbourne U.L. Rev. 101.
COUNSEL:
Keith F. Groves for applicant.
D. Bruce Logan for respondent.
SOLICITORS:
Black & Company, Calgary, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 [Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10] application
to review and set aside a decision of the respondent
dated September 22, 1987, wherein he upheld a
decision of a Board of Review made on June 22,
1987, which decision allowed an appeal from the
decision of a Discharge and Demotion Board ren
dered on March 31, 1987. That decision of the
Discharge and Demotion Board directed that the
applicant be retained in the Royal Canadian
Mounted Police (RCMP) at his present rank.
The facts giving rise to these proceedings may
be shortly stated. On June 6, 1986, the applicant, a
Special Constable with the RCMP was convicted
of theft, by shoplifting, of a bottle of cologne
valued at $10.28 from a store in the city of
Edmonton and was granted an absolute discharge
by His Honour Judge Friedman of the Provincial
Court of Alberta. On July 24, 1986, the applicant
was served with a Notice of Intent to Recommend
Discharge from the RCMP, whereupon he
requested a review of his case by a Discharge and
Demotion Board (D & D Board). The D & D
Board held a two-day hearing in November of
1986 and delivered its decision on March 31, 1987.
The Board concluded, after a consideration of all
of the evidence before it, that the applicant did not
have the intent to steal and that this circumstance
operated to alter "the normally serious nature of
the offence." (Case, page 609.) The Board then
went on to conclude that "having regard to this
circumstance, the conviction will not significantly
affect the performance of S/Cst. Fedoriuk's
duties." (Case, page 609.) This conclusion formed
the basis for the decision of the D & D Board
(supra) which directed that the applicant be
retained at his present rank.
That decision was appealed to a Board of
Review. That Board allowed the appeal from the
decision of the D & D Board and recommended
that the applicant be discharged from the Force.
That decision was in turn appealed by the appli
cant to the respondent who, in a decision dated
September 22, 1987, agreed with the decision of
the Board of Review and, thus, denied the appli
cant's appeal, and confirmed the recommendation
of the Board of Review that the applicant be
discharged.
The procedures followed by the RCMP in the
instant case were said to be prescribed by Bulletin
AM-53, which had been promulgated by the Com
missioner as a standing order. Standing Order
AM-53 sets out a comprehensive Code of Dis
charge and Demotion Procedures for the Force. In
my view, this Code was clearly designed to comply
with the rules of natural justice and procedural
fairness and is binding on the respondent Commis
sioner. I think also that the Commissioner intend
ed, when he promulgated Standing Order AM-53,
to utilize the fact-finding capabilities of the D &
D Board as well as the review facilities of the
Board of Review in discharging his responsibilities
with respect to the dismissal of Force personnel.'
The basis relied on by the respondent for his
recommendation that the applicant be discharged
is said to be Ground of Unsuitability no. 2 of
AM-53. Ground no. 2 reads:
The member is involved in the commission of an offence
under an enactment of the Parliament of Canada or the
Legislature of a province of so serious a nature and in such
circumstances as would significantly affect the proper perform
ance of his duties under the Act.
1 I expressed a similar view in Lutes v. Commissioner of the
Royal Canadian Mounted Police, [1985] 2 F.C. 326, at pp.
340-341; (1985), 61 N.R. 1 (C.A.), at p. 15.
After concluding that the first two elements of
Ground of Unsuitability no. 2 had been established
in this case, 2 the respondent then turned his atten
tion to the third and final element of Ground no. 2,
namely, "whether the offence in this case is of so
serious a nature and committed in such circum
stances as would significantly affect the proper
performance of S/Cst. Fedoriuk's duties." (Case,
Volume 4, page 687.)
In addressing himself to this issue, the respond
ent said (Case, Volume 4, pages 687-688):
9. The Discharge and Demotion Board, lacking jurisdiction to
hear evidence concerning an issue previously determined, was
not free to infer a lack of intent as a mitigating circumstance;
the commission of a theft had already been established, includ
ing intent as a requisite element of the offence.
10. The Board of Review was unanimous in considering theft to
be a serious offence, particularly when the person involved is a
peace officer. After serious reflection, and not without regret
that a capable, experienced officer like S/Cst. Fedoriuk should
find himself in this position, I am compelled to say that theft by
a member sworn to uphold the law cannot help but significantly
affect the proper performance of duty by that member. With
this in mind, I wish to adopt the following statement by the
Board of Review as my own:
It is an accepted fact that society demands a much higher
standard of conduct from public office holders, especially
those charged with enforcement of the laws of the land, than
from the public at large. Uncompromising honesty, trustwor
thiness and integrity are paramount, and an obvious breach
such as this clearly diminishes the trust which an individual
can expect, either from the public whom he serves, his
department or his peers. Unfortunately, the public's confi
dence in the Force as a whole is also affected by a demon
strated lack of integrity by one of its members.
From the Force's perspective, trust is imperative ... A loss of
credibility in the public's view, within the Force, and before the
courts will seriously impair this member's effectiveness and
render him unsuitable for service in the Force.
11. In the present case I can find no mitigating circumstance
sufficient to justify the fact a theft has been committed, with
intent, by a serving member of this Force. I accordingly deny
S/Cst. Fedoriuk's appeal and confirm the recommendation for
his discharge.
2 Those two elements are: (a) that an offence had been
committed under an Act of the Parliament of Canada; and (b)
that the applicant was involved in the commission of that
offence.
The respondent's reasons quoted (supra) are
dated September 22, 1987. Prior to this, on Sep-
tember 8, 1987, Inspector E. P. Craig wrote a
memorandum to the respondent, presumably in
response to a request therefor from the respondent.
That memorandum reads (Case, Volume 4, pages
681-684):
TO THE COMMISSIONER
FROM Insp. Craig
DATE
87-09-08
SUBJECT S/CSt..I.S. FEDORIUK
Recommendation for Discharge
SUMMARY
On 86-02-15 S/Cst. FEDORIUK was charged with theft (shop-
lifting) after an incident in a supermarket in Edmonton, Alber-
ta. He was convicted in Provincial Court, 86-06-06, but given
an absolute discharge. Following conviction, the Commanding
Officer "K" Division recommended discharge.
A Discharge and Demotion Board sat in November, 1986 and
rendered a decision 87-03-31, directing that S/Cst. FEDORIUK
be retained in the Force.
The C.O. "K" Division appealed and the Board of Review
allowed the appeal, rejected the findings of the D & D Board
and recommended that S/Cst. FEDORIUK be discharged. The
date was 87-06-22.
S/Cst. FEDORIUK has now appealed that recommendation to
you.
TRIAL
On 86-06-06 S/Cst. FEDORIUK appeared in the Provincial
Court of Alberta for trial on a charge of shoplifting. Actus
reus, the actual taking of the article (cologne) was conceded.
Mens rea, the intent, was inferred by the Court on the basis of
testimony by the store loss prevention officer that FEDORIUK
had placed the article into a parka pocket and had externally
touched it during the check-out process. The accused, for his
part, admitted putting the cologne into his pocket, but only to
separate it from the rest of the purchases. He said he intended
to give it to the cashier on the way out as he had decided not to
buy it.
Despite the appearance of two character witnesses, the decision
was taken on the basis of the word of one witness against the
other. The judge did not accept the explanation of the accused
and found him guilty as charged. However, in view of his age
and total absence of previous record, an absolute discharge was
granted.
DISCHARGE AND DEMOTION BOARD
The Board, stating it is "not bound by the procedural and
evidentiary restraints of the courts, and is not bound to accept
the finding in the prior hearing", allowed S/Cst. FEDORIUK'S
representative to call the loss prevention officer to rebut the
prima facie proof of guilt resulting from conviction in a crimi
nal court. At the same time, the Board was prepared to follow
an English case which said that "nothing less than conclusive
evidence of innocence could suffice to counteract the weight of
the previous conviction".
In the end, the Board found both FEDORIUK and his wife to be
credible witnesses, while questioning the "changing recollec
tion" of the loss prevention officer. As a result, the Board found
a lack of intent to steal on the part of S/Cst. FEDORIUK.
However, mindful of the "conclusive" dictum referred to above,
the Board was unwilling to say that the Provincial Court
Judge's decision was wrong. Accordingly, the Board accepted
that a criminal offence was committed and that our member
was in fact involved in its commission.
A collateral issue concerning evidence of a polygrapher
engaged by our member was resolved when the Board refused
to give any weight to his evidence.
Turning to the third ground whether or not the conviction
would significantly affect the proper performance of duty, the
Board concluded that lack of intent to steal in this case altered
the normally serious nature of the offence. "The mitigating
circumstance here is the lack of intent, and without this quality
of turpitude, S/Cst. FEDORIUK'S integrity is not in question".
BOARD OF REVIEW
The Board of Review, after seeking a legal opinion from Justice
Legal Services, concluded that the Discharge and Demotion
Board officer had exceeded his jurisdiction when he heard
evidence concerning an issue already decided by a court of
competent criminal jurisdiction.
Having concluded that the first two grounds had been estab
lished, the Board of Review was unanimous in its view that
theft is an offence serious enough to substantially affect the
performance of duty. It allowed the Commanding Officer's
appeal and recommended discharge.
S/Cst. FEDORIUK has now appealed that recommendation to
you.
THE LAW
I believe there is sufficient authority in the case law to support
the following statements in your decision:
1) the Discharge and Demotion Board erred at law in hearing
evidence concerning an issue already decided by a court of
competent criminal jurisdiction.
2) lacking jurisdiction, the Discharge and Demotion Board
could not infer lack of intent as a mitigating circumstance.
3) theft is an obvious example of lack of integrity.
RECOMMENDATIONS/COMMENTARY
1. If you accept grounds one and two as established, based on
the result in criminal court, your decision will of necessity be
based solely on whether ground three is also established—
whether the offence is of so serious a nature and committed in
such circumstances as would significantly affect the proper
performance of duty.
2. No specific evidence was introduced by the C.O. "K" to
support ground number three. In effect, then he is relying on
the prima facie case created by the finding of guilt. On the
other hand, with the possible exception of the character evi
dence mentioned below, the defence did not introduce specific
evidence concerning the effect of the finding on proper
performance of duty. The determination concerning ground
three is thus left to you as a matter of general principle.
3. You may wish to specifically comment on whether or not in
future you would desire evidence concerning the effect of a
finding of guilt on performance. If each case is to be judged on
its own merits, there may be good reason to tender such
evidence.
4. Mitigating circumstances in S/CSt. FEDORIUK'S favour
include almost 20 years of service, no previous criminal record,
no foreseen necessity to appear in court given the nature of
employment, and no criminal record in any event following the
absolute discharge. Four character witnesses testified that
S/Cst. FEDORIUK is experienced, very good at his job, and that
there was no indication of lack of integrity prior to this
incident.
May I suggest that in putting your mind to this case you
carefully read the written submissions at Tabs 9, and 10, the
appeal to you by S/Cst. FEDORIUK and the reply to that appeal
by the Commanding Officer, "K" Division. In making its
recommendation to you the Board of Review did not specifical
ly refer to the arguments made on behalf of our member. In the
interest of fairness, I believe you should be completely aware of
what those arguments were.
When the respondent's reasons relating to the
third and final element of Ground no. 2 (supra)
are evaluated, keeping in mind the advice he
received from Inspector Craig quoted supra, I
have little difficulty in concluding that the
respondent committed reviewable error in confirm
ing the recommendation for the applicant's dis
charge. I have reached this conclusion for two
reasons. Firstly, the respondent stated categorical
ly and without equivocation in paragraph 10 of his
reasons (Case, page 687 supra) that "theft by a
member sworn to uphold the law cannot help but
significantly affect the proper performance of duty
by that member." From this statement as well as
other statements of like purport in paragraph 10 it
is clear that the respondent Commissioner believed
that, in all cases, and regardless of the circum
stances in any particular case, a breach of the law
by a member would, automatically, and without
anything further, satisfy the requirements of the
third element of Ground of Unsuitability no. 2.
With respect, I think that such an interpretation is
not in accordance with the plain and unequivocal
language used in Ground no. 2 of AM-53. In my
view, based on the language used in establishing
the third element of Ground no. 2, the Commis
sioner is required to examine the particular cir
cumstances of the offence committed in each
individual case, and to satisfy himself, after such
examination, that the offence committed was of so
serious a nature as to significantly affect the
proper performance of his duties by the member in
question. I find it interesting that the Craig memo
randum supra, focuses on this aspect of the matter
and makes suggestions to the Commissioner which
he did not follow in his subsequent decision. In
referring to the third element, Inspector Craig,
after noting that neither the Force nor the member
introduced any evidence relative to the third ele
ment, concluded that:
The determination concerning ground three is thus left to you
as a matter of general principle. (Case, p. 684.)
Thereafter Inspector Craig stated that:
You may wish to specifically comment on whether or not in
future you would desire evidence concerning the effect of a
finding of guilt on performance. If each case is to be judged on
its own merits, there may be good reason to tender such
evidence. (Case, p. 684.)
It is unfortunate that the Commissioner did not
accept this advice. As noted in de Smith: "A
Tribunal entrusted with a discretion must not, by
the adoption of a fixed rule of policy, disable itself
from exercising its discretion in individual cases." 3
Because the Commissioner did not address himself
to the factual situation here present, in deciding
whether the third element of Ground 2 was estab
lished in this case, I think he has committed
reviewable error which vitiates the decision a quo.
My second reason for concluding that review-
able error is present in this case relates to the
Commissioner's statement that (Case, page 688):
In the present case I can find no mitigating circumstance
sufficient to justify the fact a theft has been committed, with
intent, by a serving member of this Force.
Once more it is instructive to refer back to the
Craig memorandum and to repeat some of the
advice given by Inspector Craig to the Commis
sioner. At page 4 of his memorandum to the
Commissioner, the Inspector wrote (Case, page
684):
4. Mitigating circumstances in S/Cst. FEDORIUK's favour
include almost 20 years of service, no previous criminal record,
no foreseen necessity to appear in court given the nature of
employment, and no criminal record in any event following the
absolute discharge. Four character witnesses testified that
S/Cst. FEDORIUK is experienced, very good at his job, and that
there was no indication of lack of integrity prior to this
incident.
He then went on to suggest to the Commissioner:
... that in putting your mind to this case you carefully read the
written submissions ...
of both the applicant and the Commanding Offi
cer, "K" Division. Inspector Craig added (Case,
page 684):
In making its recommendations to you the Board of Review did
not specifically refer to the arguments made on behalf of our
member. In the interest of fairness, I believe you should be
completely aware of what those arguments were.
The record does not disclose whether in making
his decision, the Commissioner took the advice of
Inspector Craig and did consider the arguments of
the applicant before the Board of Review. Those
submissions were detailed and somewhat lengthy
(Case, pages 643-652 inclusive). The reasons given
by the commissioner make no mention of those
3 de Smith's Judicial Review of Administrative Action, 4th
ed., by J. M. Evans, London: Stevens & Sons Limited, 1980, p.
311.
submissions and arguments whatsoever. The mere
fact that he did not address those submissions in
his reasons is not a deciding factor, of itself, from
which it can be concluded that he did not address
all of the circumstances of this case. However, in
my view, the fact that the Commissioner chose not
to refer to the very serious and detailed submis
sions of the applicant, may present some corrobo
ration that he did not consider the specific circum
stances here present, because he had already
decided, as discussed supra, that the circumstances
in each particular case were irrelevant to the deci
sion which he was required to make.
Accordingly, and for the above reasons, my
conclusion is that the respondent Commissioner's
decision herein cannot be allowed to stand. In
these reasons, I have not addressed the rather
extensive submissions made to us by the appli
cant's counsel relating to the application or non-
application of the doctrine of issue estoppel. In the
view I take of this matter, it is not necessary to
decide its applicability or non-applicability in this
case since the reviewable error committed by the
Commissioner related to the third element of
Ground no. 2. The whole question of issue estoppel
relates to the question as to whether or not an
offence was committed by the applicant. Since I
assume, for the purpose of disposing of this
application that the Commissioner was correct in
deciding that an offence had been committed by
the member in question, the question of issue
estoppel need not be answered in this case. For the
reasons given herein, my problem is not with the
first and second elements of Ground of Unsuitabil-
ity no. 2 but with the third element thereof.
I would therefore allow the section 28 applica
tion, set aside the Commissioner's decision herein,
and refer the matter back to him for redetermina-
tion on a basis not inconsistent with these reasons
for judgment.
* * *
The following are the reasons for judgment
rendered in English by
MAHONEY J.: I agree with the disposition of
this application proposed by Mr. Justice Heald
and with his reasons therefor. I should not have
been disposed to add my own reasons except to
explain why I do not agree with Mr. Justice Mar-
ceau in his approach.
There is, in my opinion, no question of issue
estoppel in this case. There is, however, a real
question of abuse of process. The applicant was
duly convicted of shoplifting by the Provincial
Court. Intent was an essential element of the
offence. Mr. Justice Marceau sees no reason why
the finding of intent should be binding on the
tribunals engaged in the consequent disciplinary
proceedings. With respect, I disagree. I can
express myself no better than to adopt the words of
Lord Diplock in Hunter y Chief Constable of West
Midlands, [1981] 3 All ER 727 (H.L.), at page
734:
... a decision on a particular question against a defendant in a
criminal case ... is reached on the higher criminal standard of
proof beyond all reasonable doubt and is wholly inconsistent
with any possibility that the decision would not have been
against him if the same question had fallen to be decided in
civil proceedings instead of criminal.
Accepting, as we ought, that Lutes v. Commis
sioner of the Royal Canadian Mounted Police,
[1985] 2 F.C. 326; (1985), 61 N.R. 1 (C.A.),
correctly decided that a verdict of acquittal, i.e. a
finding that all elements of the criminal offence
had not been proved beyond a reasonable doubt,
was binding in subsequent disciplinary proceedings
where the standard of proof was merely the bal
ance of probabilities, it seems to me that,
a fortiori, a finding of guilt must be likewise
binding.
*
The following are the reasons for judgment
rendered in English by
MARCEAU J. (concurring in the result): I am in
complete agreement with Mr. Justice Heald that
the respondent's decision under attack in this sec
tion 28 application cannot be allowed to stand,
and, had I been satisfied with the approach my
colleague adopts in his reasons for judgment, I
would have had nothing to add. But my approach
has been different and my objection to the validity
of the decision is, in a sense, more fundamental
than his, so I feel the need to express some person
al views.
The resolution of the respondent to accept the
recommendation of the Review Board and reject
that of the Discharge and Demotion Board (the D
& D Board) was essentially based, as explained in
my brother's reasons, on the conclusion that the D
& D Board was not legally entitled to hear evi
dence on the involvement of the applicant in the
commission of the offence for which he had been
convicted in the Alberta Provincial Court. It is
clear that, even when that conclusion was accept
ed, there remained another aspect to the case
which, as found by Mr. Justice Heald, the
respondent seems to have neglected. But the need
to look into this other aspect was dependent on a
prior rejection of the findings of facts made in first
instance, particularly the finding that intent was
not really present, a rejection which would be
warranted, at this stage, only on the ground that
the evidence having led to those findings was
totally inadmissible. Was that belief that the D &
D Board was precluded from looking again into
the facts of the case well founded in law? In my
opinion, it was not. I shall attempt to explain my
opinion briefly, in spite of the difficulty of some of
the points involved.
1. My first assertion will be that I see no reason
why the prior finding of the Provincial Court in
respect of the applicant's intent could have been
irrevocably binding on the Board called upon to
make the recommendation contemplated by Bulle
tin AM-53. Indeed, only by virtue of the doctrines
of "issue estoppel" or "abuse of process" could it
have been so and neither one, in my view, had
application.
As for the doctrine of issue estoppel, I will
simply refer to the recent judgment of this Court
in Van Rooy v. M.N.R., [1989] 1 F.C. 489 where
Mr. Justice Urie, writing for the Court, after a
thorough review of the case law, reiterated that an
objection based on res judicata or issue estoppel
will constitute a bar to proceedings only if the
same matter has been decided between the same
parties in a prior final judicial decision. It is
evident that the parties before the disciplinary
tribunal were not the same as those in the Provin
cial Court: the D & D Board sits at the behest and
on behalf of the Commissioner who acts, not on
behalf of the Queen but in accordance with the
duties and powers conferred on him personally by
Parliament. Nor was the issue before the D & D
Board the same as that facing the Provincial
Court: even if the element of "intent to steal" were
treated in isolation, it had to be addressed by the
D & D Board having regard to its mission which
was to ascertain whether the appellant was
"involved in the commission of an offence ... of so
serious a nature and in such circumstances as
would significantly affect the proper performance
of his duties under the Act".
Above all, it should not be forgotten that this is
not a case of subsequent criminal proceedings after
a verdict of acquittal, where the doctrine of issue
estoppel, in its development beyond the strict con
fines of res judicata, is more readily accepted,
related as it is to the old plea of autrefois acquit
and the guarantee against double jeopardy, (see
Howard, "Res Judicata in the Criminal Law"
(1961), 3 M.U.L.R. 101, at page 108 et seq.; see
also the reasons of Dickson J. (as he then was) in
R. v. Riddle, [1980] 1 S.C.R. 380). This is a case
where, after conviction in a criminal forum, new
proceedings, clearly classifiable as civil (questions
of professional status and employment being
involved), are engaged: in such a case, as was said
again recently by the Ontario Court of Appeal in
Re Del Core and Ontario College of Pharmacists
(1985), 19 D.L.R. (4th) 68, it is the danger of
abuse of process which should become the para
mount concern.
As for the doctrine of "abuse of process", it
should be sufficient to point out that there was no
question here of reopening an issue for the sole
purpose of relitigating it, as was the case in Deme-
ter v. British Pacific Life Insurance Co. and two
other actions (1983), 150 D.L.R. (3d) 249 (Ont.
H.C.). Nor was anyone indirectly disputing the
validity, even less the existence, of the first convic
tion, which had to be and was in fact accepted for
what it was. The applicant was not seeking to
avoid the consequences of that conviction, and, in
any event, he had been granted an absolute dis
charge. In the proceedings before the D & D
Board, however, the applicant had his career and
livelihood at stake. His interest in trying to chal
lenge, excuse or mitigate some of the findings of
the Provincial Court judge could not be more
legitimate. I do not see how one can speak of an
abuse of process. Particularly if one takes due care
to bear in mind that "intent" is not a material fact
which can be the object of direct apprehension but
a pure state of mind which can only be inferred
from outward circumstances, an inference in
which a large dose of subjectivity inevitably comes
into play.
2. My second assertion is that, even if the
findings of the Provincial Court judge as to the
applicant's involvement were binding on it, the D
& D Board was nevertherless under a duty to look
into the circumstances of the case and assess for
itself their significance in regard to the man's guilt
and character. It is not, of course, that the D & D
Board was called upon to verify the validity of the
conviction, it is that, under the standing order, it
was required to use its own judgment and make
the recommendation which it, itself, thought
appropriate.
I am not oblivious of the judgment of this Court
in Lutes v. Commissioner of the Royal Canadian
Mounted Police, [1985] 2 F.C. 326; (1985), 61
N.R. 1 (C.A.), where it was decided that a verdict
of acquittal by a criminal court in favour of an
RCMP officer charged with a criminal offence
prevented the Commissioner from looking again
into the facts of the case so as to verify for himself
whether the officer had been involved in the
offence for the purpose of Standing Order AM -53.
It seems to me, however, that a corresponding
preclusive effect would not be warranted in the
case of a conviction, because the principles
involved and the public interest at stake are not
identical. In the Lutes case, the conclusion of the
majority, as I read the reasons, was based, not
directly on the doctrine of issue estoppel, but
essentially on the proposition that a finding of
involvement in the commission of an offence under
an Act of Parliament could only be founded on
proof adduced to the satisfaction of a court of
competent criminal jurisdiction. It would, of
course, be unacceptable that the panoply of consti
tutional safeguards available to a person accused
of a criminal offence in a criminal court be cir
cumvented by bringing proceedings against him in
another forum. But when the circumstances are
reversed, the same reasoning does not hold. The
interest of the individual, which is what is to be
secured, dictates a different solution and requires
that at least a degree of discretion be left to the
tribunal.
It is therefore my view that the Commissioner
misdirected himself in law when, in confirming the
Review Board, he rejected at the outset the find
ings of fact of the Discharge and Demotion Board.
My objection to the validity of the decision is
therefore, as I said, more fundamental still than
that expressed by my brother Heald and, on send
ing the matter back to the Commissioner for
reconsideration, I would ask that it be taken into
account.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.