Federal Appeal

Law Enforcement Agencies

Particular police and security forces

Royal Canadian Mounted Police

There were grounds to consider officer may not be “suitable” for position as member of RCMP

Employee, probationary regular member of RCMP, copied assignments, accessed police database for personal use, and lied about having done certain work. Three breaches of Code of Conduct were confirmed and additional concerns arose. Formal disciplinary action was commenced under Pt. IV of Royal Canadian Mounted Police Act (Act), but hearing under Pt. IV was never initiated. Employee was dismissed as unsuitable under Pt. V of Act. Decision was confirmed by Probationary Review Officer. In Officer’s view, employee was aware of duties he was to perform as well as expected standards; despite this he repeatedly failed to perform duties in manner fitted to requirements of his position. Employee’s application for judicial review was granted by Federal Court. Federal Court characterized main issue on whether officer breached procedural fairness by deciding that employee could be discharged under Part V of Act on standard of correctness. Attorney General of Canada appealed. Appeal allowed. Federal Court mischaracterized main issue before it and applied wrong standard of review. Officer’s statutory interpretation of Act was reasonable. End result of interpretation adopted was that probationary member was treated same way as all other members of RCMP unless, because of repeated failures to perform in manner fitted to his duties during first two years on force, and having benefited from RAGS, there were grounds to consider that he may not be “suitable” for position as member of RCMP. Officer gave sufficient reasons for his conclusion; this was particularly when one considered officer’s ultimate conclusion that it was impossible for RCMP to teach level of honesty and integrity required to person who did not have values to start with.

Canada (Attorney General) v. Herrera-Morales (2017), 2017 CarswellNat 3678, 2017 FCA 163, M. Nadon J.A., Eleanor R. Dawson J.A., and Johanne Gauthier J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 1867, 2016 CarswellNat 2859, 2016 FC 578, 2016 CF 578, E. Heneghan J. (F.C.).


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