Burnham v. Metropolitan Toronto Police

Wilson J.‑‑Constable Burnham at all material times was a member of the Metropolitan Toronto Police Force. He was charged with "discreditable conduct" under the Police Act regulation (Reg. 791, R.R.O. 1980) for wilfully or negligently making a false complaint against a member of the police force contrary to s. 1(a)(iv) of the Code of Offences. The offence was designated as a major offence. He was also charged with neglect of duty contrary to s. 1(c)(x) of the Code for being absent from duty without leave. This was also designated as a major offence.

The proceeding came before the designated presiding officer, Superintendent Robert Lynn. Counsel for the appellant objected that the tribunal was not "independent and impartial" as required by s. 11(d) of the Charter . Superintendent Lynn ruled against him on this objection. The appellant then applied to the Divisional Court for judicial review seeking an order prohibiting the Chief of Police, Superintendent Lynn and the Metropolitan Toronto Board of Commissioners of Police from taking any further proceedings in the matter other than the referral of the matter to a judge under s. 18(1) of Regulation 791, R.R.O. 1980. The Divisional Court dismissed the application "for the reasons given in Trumbley and Pugh v. Fleming by this Court on September 7, 1984".

The appeal to the Ontario Court of Appeal was dismissed: (1986), 55 O.R. (2d) 570. Morden J.A. for the Court examined the wording of s. 11 and noted that it is replete with criminal law terminology. He also examined the legislative history of s. 11, the marginal note to s. 11 and the authorities on the issue. He concluded (at p. 583) that "`offence' means an offence which is prosecuted in a criminal or penal proceeding". At page 589 he stated:

In my view, a Police Act discipline proceeding is not a criminal or penal proceeding within the purview of s. 11. The most serious consequence that can befall a police officer in such proceedings is the loss of his or her position and, while I do not minimize the seriousness of this consequence, it is a civil consequence and not punishment of a criminal nature. A police discipline matter is a purely administrative internal process. Its most serious possible consequence makes it analogous to a discipline matter in ordinary employer‑employee relationships, even though the procedure governing it is clearly more formal. The basic object of dismissing an employee is not to punish him or her in the usual sense of this word (to deter or reform or, possibly, to exact some form of modern retribution) but rather, to rid the employer of the burden of an employee who has shown that he or she is not fit to remain an employee.

Leave to Appeal was granted by this Court on November 27, 1986.

The following constitutional questions were stated by this Court:

1. Does section 11(d) of the Canadian Charter of Rights and Freedoms (hereinafter referred to as the "Charter ") apply to police disciplinary proceedings under Regulation 791, R.R.O. 1980 made under s. 74(1) of the Police Act, R.S.O. 1980, c. 381 as amended?

2. If section 11(d) of the Charter does apply to these proceedings, is Regulation 791, R.R.O. 1980 inconsis‑ tent with it, and, if so, can the Regulation be justified under s. 1 of the Charter ?

The applicable statutory provisions have been set out in the related case of Trimm v. Durham Regional Police, [1987] 2 S.C.R. 582. For the reasons given in R. v. Wigglesworth, [1987] 2 S.C.R. 541, s. 11 does not apply to police disciplinary proceedings under Regulation 791, R.R.O. 1980. The disciplinary proceedings in this case, which are identical to those employed in the related cases of Trimm v. Durham Regional Police and Trumbley and Pugh v. Metropolitan Toronto Police, [1987] 2 S.C.R. 577, are neither criminal in nature nor do they involve penal consequences. Unlike Wigglesworth, the appellant is not subject to the possibility of imprisonment under the Police Act, R.S.O. 1980, c. 381. I would therefore answer the first constitutional question in the negative. Having regard to my answer to question 1 it is unnecessary to consider question 2.

I would dismiss the appeal.