IN THE MATTER OF AN APPEAL HEARING BEFORE

THE SASKATCHEWAN POLICE COMMISSION

UNDER SECTION 70 OF THE POLICE ACT

BETWEEN:

CHIEF DALE MCFEE, CHIEF OF THE PRINCE ALBERT POLICE SERVICE

-and-

CST. PATRICK ROBIN, BADGE #168

-and-

THE PUBLIC COMPLAINTS COMMISSION

DECISION OF THE SASKATCHEWAN POLICE COMMISSION

Counsel:

Perry D. Erhardt, Q.C. Daniel B. Heffernan

Terry J. Zakreski

Appeal Hearing Panel:

I. INTRODUCTION

for The Public Complaints Commission for Chief Dale McFee, Chief of the Prince Albert Police Service for the Member, Constable Patrick Robin, Badge #168

Paul H.A. Korpan, Q.C., Chair Catherine A. Sloan Richard A. Leland, Q.C.

1. Chief Dale McFee ("Chief McFee") determined Constable Patrick Robin

("Constable Robin") was unsuitable for police service. Pursuant to s. 60(1)(b) of The Police Act,

1990 ( "The Police Act") he was dismissed as a member of the Prince Albert Police Service by

the Order ofDismissal ofChiefMcFee the 16th of May, 2010 (the "Order ofDismissal").

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2. Pursuant to s. 61 of The Police Act, Constable Robin appealed from the Order of

Dismissal. A hearing of his appeal was convened and heard by Hearing Officer Anne M.

Wallace, Q.C. (the "Hearing Officer"). By her decision dated the 30th of March, 2011 (the

"Hearing Officer's Decision"), she set aside Chief McFee's finding of unsuitability. She

imposed a penalty of a 9 month suspension, without pay and a 1 year period of probation upon

reinstatement. She gave further directions regarding the reorientation and rehabilitation of

Constable Robin, including the assignment of a coaching officer.

3. All parties applied to the Saskatchewan Police Commission (the "Commission")

pursuant to s. 69 of The Police Act and were given permission to appeal.

4. After permission to appeal was granted, Chief McFee brought an application to

introduce fresh evidence. The proposed fresh evidence consisted of written and recorded

statements. The Commission considered and determined the admissibility of the proposed fresh

evidence. The Commission received written briefs and heard oral argument. The Commission

held that Chief McFee did not meet the first element of the controlling test for admissibility of

fresh evidence as established by the Supreme Court of Canada in R v Palmer, [1980] 1 SCR 759

["Palmer"]. The Commission concluded the evidence could have been produced by due

diligence at the hearing before the Hearing Officer. For that reason, the Commission concluded

it was not necessary to determine whether it met the remaining elements of the Palmer criteria.

That decision is the subject of a written decision to that effect by the Commission.

5. Before the hearing of this appeal by the Commission, Chief McFee applied again

to introduce additional fresh evidence. The Commission conditionally received the evidence of

the proposed witness, identified for these purposes as "Witness X", to determine if the proposed

evidence met the legal test for the introduction of fresh evidence upon appeal.

6. According to the procedure set out by the Supreme Court of Canada in R v Stolar,

[ 1998] 1 SCR 480 at para. 14, the Commission reserved its decision on the application to

introduce fresh evidence until the hearing of this appeal on its merits and the decision of this

Commission. In so doing, the Commission was also mindful of the similar direction of the Court

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of Appeal in R v Big Eagle, 163 Sask R 3, R v Taylor, 2007 SKCA 108 at para. 5, and the earlier

decision and similar approach of the Commission in the matter of the appeal to the Commission

by Constables Lawrence Hartwig and Bradley Senger, and the Commission's decision in that

appeal dated the 28th of July, 2008.

II. APPEAL GROUNDS

7. The grounds of appeal of Constable Robin, Chief McFee and the Public

Complaints Commission ("PCC") are set out in their respective Notices of Application for

Permission to Appeal and written arguments. The relevant grounds are summarized below.

Chief McFee's Appeal

8.

(a)

ChiefMcFee submitted that:

The Hearing Officer erred by not considering evidence of alleged misconduct by

Constable Robin that was not the subject of the investigation and order for

dismissal in this case; and

(b) The Hearing officer erred by concluding Constable Robin remained suitable for

police service, after he was found by the Hearing Officer to have breached policy

and regulation, and to have committed several acts of conduct unbecoming,

including:

(i) Improperly disclosing police information to a member of the public;

(ii) Insubordination;

(iii) Making false and misleading statements to his immediate supervisor, and

to the PCC Investigator;

9.

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(iv) Pursuing a prosecution because of his personal interest in the outcome,

and contrary to the decision of the Crown Prosecutor; and

(v) Making unsubstantiated allegations of improper behaviour and criminal

wrongdoing against his immediate supervisor, Chief McFee, and other

superior officers.

In these several respects, Chief McFee asserted that these actions were planned,

deliberate and malicious.

10. Chief McFee argued that this behaviour did not meet the requisite standard of

honesty and integrity required of police officers generally and that the Hearing Officer should

have concluded Constable Robin was unsuitable for police service and Chief McFee assetis that

the Hearing Officer's findings necessarily support a conclusion Constable Robin was unsuitable

as a matter of character and it was therefore not necessary to detem1ine what remediative steps or

penalties were appropriate, falling shmi of dismissal.

11. In Chief McFee's written argument before the Commission, he does not take issue

with the findings of fact made by the Hearing Officer, apmi from her detennination that

Constable Robin was genuinely remorseful for his behaviour.

Tlte PCC's Appeal

12. The PCC founded its appeal on much the same grounds as Chief McFee.

Constable Robin's Appeal

13. Constable Robin submitted that the Hearing Officer erred on a fundamental

evidentiary issue and made findings of fact and characterized aspects of Constable Robin's

conduct in ways that were not supported by the evidence.

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14. He argued that the evidence supported a finding that Constable Robin's actions

and motives were appropriate throughout and that his conduct was not in any way unbecoming.

15. He appealed from her ultimate determination of penalty. He argued that further

steps should have been taken to rehabilitate his behaviour, and that he was still suitable for police

service. He argued that the disciplinary action imposed by the Hearing Officer was not

comparable to disciplinary actions imposed in similar proceedings and on that ground was harsh,

severe, and excessive.

16. The parties' respective grounds for appeal and related arguments will be

examined in more detail in the context of the analysis below.

III. CONCLUSION IN BRIEF

17. For the reasons given below, the application by Chief McFee to introduce fresh

evidence upon appeal is dismissed.

18. For the reasons also set out below, the appeals of the PCC and Chief McFee are

allowed. The appeal of Constable Robin is dismissed. The decision ofthe Hearing Officer is set

aside. In the result, the decision of Chief McFee to dismiss Constable Robin is restored.

IV. STANDARD OF REVIEW

19. The procedure on this appeal is govemed by s. 70 of The Police Act. Section

70(1) provides:

20.

An appeal to the commission pursuant to this section shall proceed on the basis of the record unless the commission orders otherwise.

Apart from hearing the proposed fresh evidence called by counsel for Chief

McFee, this appeal proceeded on and was decided on the basis of the record.

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21. The Police Act does not prescribe the standard of review applicable on an appeal

to the Commission under The Police Act.

22. The standard of review applicable on judicial review of the decisions of

administrative tribunals is well established by the Supreme Court of Canada. A standard of

reasonableness applies to questions of fact, discretion or policy, and where legal issues cannot be

easily separated from factual issues. A standard of correctness applies to questions of law or

jurisdiction. See Dunsmuir v New Brunswick, [2008] 1SCR 190 ["Dunsmuir"].

23. See also:

Dr. Q. v College of Physicians and Surgeons of British Columbia [2003 SCC 19], ["Dr.

Q. "];

Ryan v Law Society of New Brunswick, [2003], 223 DLR (4th) 577 (SCC), ["Ryan"];

Communications, Energy and Papel'YI'Orkers Union of Canada, Local 30 v Irving Pulp &

Paper, Ltd., [2013] 2 SCR 458, 2013 SCC 34 ["Paperworkers Union"]; and

Re Stone child, [2003] 310 Sask R 263 ["Stonechild"].

24. In their Briefs filed with the Commission, we were urged by counsel for

Constable Robin and the PCC to adopt the standard of review contemplated by the Supreme

Court of Canada in Dunsmuir.

25. Regulators of the legal profession have also applied the Dunsmuir standard in

hearing internal appeals from disciplinary or admission decisions. See:

Law Society of Upper Canada, v Neinstein, [2007], 280 DLR (4th) 263;

Law Society of Upper Canada v Evans, [2008], 91 OR (3d) 163 (Div Ct);

Law Society v Do bin, [2000] LSDD No 1;

Berge (Re), 2007 LSBC 7;

Martin (Re), 2007 LSBC 20; and

Law Society ofSaskatchewan v Demaria, July 11, 2012.

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26. In the Commission's decision m Constables Lawrence Hartwig and Bradley

Senger v The Chief of Police of the Saskatoon Police Service, July 28, 2008,

http://www.justice.gov.sk.ca/7-28-2008-hartwig-senger ["Hartwig and Senger"], the

Commission applied the Dunsmuir standard.

27. In this case, the Commission adopts the Dunsmuir standard.

28. For the purposes of this review, and on the basis of the submissions before the

Commission, a reasonableness standard applies on questions of matters of fact and/or mixed fact

and law. A correctness standard applies on questions of law and jurisdiction. The error must be

evident and shown to have affected the result of the decision as a whole. The party seeking

review bears the onus throughout. In this case, the burden rests on Chief McFee.

V. THE EVIDENCE

29. Before detetmining the merits of the appeals and the appropriate outcome, the

Commission will first determine the evidence that is relevant and appropriate. The Commission

will consider:

(a) Chief McFee's application at the hearing to adduce fresh evidence;

(b) Whether the statements made by Constable Robin to the PCC investigator should

have been excluded from consideration by the Hearing Officer; and

(c) Whether the Hearing Officer's fl.ndings of fact are reasonable. Specifically, was

there an evidentiary basis for those findings of the Hearing Officer that are now

challenged by the parties, and that are relevant for the purposes of this appeal?

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30. The first two of these questions will be considered in tum. The third question will

be considered in our analysis of the Hearing Officer's decision, based on the appropriate

standard of review.

Application to Admit Fresh Evidence

31. In this appeal hearing, Chief McFee sought leave of the Commission to introduce

evidence from Witness X. This evidence was summarized for the Commission and related to an

off-duty encounter with Constable Robin occurring after the Hearing Officer's decision had been

rendered. The Commission conditionally received the evidence as viva voce, but reserved its

decision on whether or not the evidence was admissible.

32. In this appeal proceeding, the Commission previously ruled on an application to

admit fresh evidence. The well accepted controlling authority is R. v. Palmer, [1980] 1 SCR

759, ["Palmer"] where the Supreme Court of Canada outlined the following test for the

admission of fresh evidence:

33.

(a) The evidence should generally not be admitted if, by due diligence, it could have

been admitted at trial;

(b) The evidence must be relevant in the sense that it bears upon a decisive or

potentially decisive issue in the trial;

(c)

(d)

The evidence must be credible in the sense that it is reasonably capable of belief;

and

The evidence must be such that, if believed, it could reasonably be expected to

have affected the result.

Each branch of the test will be examined in turn.

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34. The events described in the application occurred after the Hearing Officer's

decision was released. The first branch of the Palmer test is met.

35. The evidence is relevant in the sense that it potentially reflects on Constable

Robin's suitability for police service. As such, the second branch of the Palmer test is met.

36. The evidence is reasonably capable of belief, and therefore, broadly meets the

third branch of the Palmer test.

37. The Commission finds, however, that the fomih branch of the Palmer test is not

met.

38. Chief McFee assetis that the "new" evidence could reasonably be expected to

have affected the result. He asserts it casts· doubt on whether Constable Robin was genuinely

remorseful for his misconduct.

39. Constable Robin argues that this is not "fresh evidence" but rather "future

evidence" since the evidence in question relates to events occuning after the Order of Dismissal

and the Hearing Officer's decision. Constable Robin further asserts that the Palmer criteria were

only designed to allow evidence that existed at the time of trial but had not been discovered until

after trial.

40. The issue in this Appeal is whether or not Constable Robin was unsuitable for

police service at the time of his dismissal by Chief McFee. Post-hearing events could not

reasonably be expected to have affected the result since they did not occur until after a decision

had been made by Chief McFee.

41.

dismissed.

For these reasons, Chief McFee's application to introduce fresh evidence 1s

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Admissibility of Statements Made by Constable Robin to the PCC Investigator

42. Constable Robin was ordered by ChiefMcFee to meet with the PCC investigator,

Mr. Wade. He was interviewed by PCC Investigator Wade. The interviews were recorded and

transcribed.

43. At the hearing before the Hearing Officer, Constable Robin objected to the

admissibility of these statements. He argued they were given involuntarily, in contravention of

Constable Robin's right against self-incrimination under s. 6(1) of The Evidence Act and s. 7 of

the Charter of Rights and Freedoms, The Constitution Act, 1982, Schedule B to the Canada Act

1982 (UK), 1982, c 11, at Part I.

44. As suggested by counsel for Constable Robin, admissions given by Constable

Robin in these statements were central to proof of 7 of the charges against him in the Order of

Dismissal, including those charges reproduced in his counsel's brief:

a. you willfully misled your immediate supervisor, Sgt. Kellett, respecting your conversation with senior Crown Prosecutor Joseph Kulyk, when Sgt. Kellett asked you whether you had talked to him regarding the above mentioned traffic ticket offence. You had, in fact, discussed the matter with Mr. Kulyk, and had been informed that the Crown would not prosecute the ticket further. You deliberately withheld that information from Sgt. Kellett, and deliberately failed to inform him of your intention to prosecute the ticket yourself;

b. you did not disclose to the civilian witnesses who attend [sic] court with respect to the above mentioned ticket that you did not have the authorization of the Prince Albert Police Service to prosecute the offence;

c. your actions in consulting with and disclosing confidential Prince Albert Police Service information to Ian Reiman led to Mr. Reiman making anonymous telephone calls to three civilians to pressure these civilians to intervene with the mayor's office on your behalf;

d. you willfully misled the investigator from the Public Complaints Commission by initially denying you had shared confidential Police Service information with Mr. Reiman;

e. you willfully placed yourself in a conflict of interest by personally prosecuting a traffic ticket offence against Casey Reimer, knowing that the said Casey Reimer had complained to the Prince Albert Police Service respecting your conduct;

f. you willfully disregarded the direction of Joseph Kulyk, senior Crown Prosecutor respecting the Casey Reimer matter, in direct violation of Prince Albert Police Service written policy, which provides that the Crown Prosecutor has overriding authority to determine what charges will be prosecuted once any given matter reaches court. You did so without consulting, inf01ming or obtaining the approval of any superior officer of the Prince Albert Police Service;

g.

h.

i.

j.

k.

45.

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you have willfully made a false statement about a fellow member of the Prince Albert Police Service, Sgt. Kellett, by accusing him of taking steps to "stop" service of a subpoena on a Crown witness;

you have willfully made a false statement regarding a civilian employee of the Prince Albert Police Sevice, Kristy Wright, by stating she was the person who informed you that Sgt. Kellett had taken steps to stop the subpoena to a Crown witness;

you have willfully made a false statement about a former fellow member of the Prince Albert Police Service, Insp. Georgeson, by accusing him of interfering in the investigation or prosecution of the traffic ticket offence against Casey Reimer;

you arranged for a witness to attend from out of town to testify with respect to the Casey Reimer traffic ticket offence without making any arrangement for such witness's travel expenses to be covered, and failed to assist the witness in recovering such expenses after their evidence was given;

you have made a false allegation of criminal conduct against myself and other senior officers of the Prince Albert Police Service by alleging to the Royal Canadian Mounted Police and the Saskatchewan Public Complaints Commission that we have been guilty of obstruction of justice with respect to the Casey Reimer matter. You did this despite your knowledge that the decision not to prosecute the Reimer matter was made by the Crown Prosecutor handling the file, not by myself or any of the senior officers you accused of wrongdoing.

According to the transcript of the first interview, Constable Robin was directed by

PCC Investigator Wade to answer all questions fully and truthfully, with the admonition that

failure to do so could lead to further disciplinary action. Constable Robin therefore asserts that

he was compelled and the statements were involuntary. Constable Robin also complains that he

was forced to answer ce1iain questions without notice or preparation.

46. Constable Robin argues that he was compelled in these interviews to give

evidence against himself contrary to s. 6(1) of The Evidence Act. He argues that the Hearing

Officer should have exercised her discretion to not allow these statements to be used by Chief

McFee in the prosecution of the charges against him.

47. These issues were fully argued at the voir dire conducted by the Hearing Officer.

48. There are two parts to the relevant analysis. The first is whether Constable Robin

was compelled to make these statements. The second is whether the statements.were made in the

context of a prosecution, within the meaning of The Evidence Act.

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49. As to the first question, the Hearing Officer concluded the PCC did not have the

power to compel Constable Robin to provide a statement. She did conclude that Chief McFee

was empowered to order Constable Robin to attend the interviews and to cooperate. In the

reasons for her decision, she stated:

50.

I agree with Robin's counsel that there is nothing in the Act to authorize the PCC to compel a member to provide an interview or a statement. s. 39(2), however, properly interpreted, appears to mean that the PCC "shall [i.e., must) receive and obtain information respecting a public complaint from the complainant" and "may [i.e. is entitled to) interview and take statementsji"Ofn the chief, board, complainant and the member or chief who is the subject of the public complaint."

While the Act does not provide any means to compel the member to provide a statement or interview, it certainly contemplates that the PCC is entitled to interview and take statements from the persons listed. I am satisfied the Act contemplated that the persons listed would provide statements to the PCC investigator.

In addition, in this case, as employer, McFee directed Robin to attend for the PCC interviews. s. 35 of the Act directs the chief of police to be responsible for maintenance of discipline within the police service. The chief is empowered, among other things, to make directives necessary to carry out the daily administration and operations of the police service. [emphasis in original]

If Constable Robin was compelled to make these statements, the protection

afforded by s. 6(1) of The Evidence Act only extends to evidence being given in a "prosecution".

Section 6(1) provides:

51.

6(1) No person is compellable, in a prosecution against the person pursuant to any Act, to give evidence against himself or herself. [emphasis added]

Constable Robin asserts that the term "prosecution" was intended by the

Legislature to apply to criminal or quasi-criminal proceedings. He asserts that the use of the

term "prosecution" under The Police Act has the effect of elevating a disciplinary proceeding

under The Police Act to a proceeding that is a prosecution within the meaning of The Evidence

Act.

52. Section 56 of The Police Act provides, in part:

56(1) Where a hearing is proceeded with pursuant to section 48, 52, 54.1 or 55.1, the rules prescribed in this section apply to the hearing.

[ ... ]

(5) The rules of evidence for all hearings conducted pursuant to this Part are the same as in civil cases in Her Majesty's Court of Queen's Bench for Saskatchewan.

53.

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(6) No evidence given by a chief, member or civilian member during a hearing governed by this Part is to be used or received against him or her in any civil proceedings or in any proceedings pursuant to any other Act if it tends to incriminate him or her, subject him or her to punishment or establish his or her liability.

Chief McFee argued that proceedings under The Police Act involve no penal

consequences and are purely administrative or civil. He asserted that these proceedings therefore

do not engage the protections of The Evidence Act or the Charter of Rights and Freedoms. He

advanced a contextual approach to the interpretation of The Police Act, and those other statutes

cited in his argument that contemplate prosecutions, but do not involve criminal or quasi­

criminal proceedings.

54.

55.

The Hearing Officer agreed with Chief McFee, ruling that:

While the word "prosecution" is not defined in The Evidence Act, I am satisfied the legislature intended this provision to apply to criminal or quasi-criminal proceedings. This is underscored by the use of the words "penalties" and "imprisonment" in subsection (2). The current dispute is essentially a labour dispute and while the employee can be subject to serious disciplinary consequences and loss of employment, there are no potential criminal or penal consequences or imprisonment. I am satisfied the privilege against self-incrimination in s. 6 of The Evidence Act was not intended to apply to a disciplinary hearing before a hearing officer under The Police Act 1990.

The Commission agrees with the decision of the Hearing Officer. Whiles. 56(6)

limits the use that may be made in civil proceedings of evidence given under The Police Act,

there is no restriction imposed around the use of statements or other evidence given by members

for the purposes of proceedings under The Police Act. As the reasons of the Hearing Officer

quoted above suggest, the Legislature contemplated the PCC being entitled to interview and take

statements from members and other individuals for the purpose of fulfilling its investigatory

duties under The Police Act.

56. The Police Act and The Evidence Act must be interpreted in such terms as do not

bring them into conflict with each other. The Police Act contemplates the PCC gathering

information from and interviewing members. The Chief of Police and other superior officers

have authority under The Police Act to administer effective policing and, to that end, to order

members to cooperate. The Police Act contemplates a civil standard of proof, consistent with the

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proceeding being civil in nature. The proceedings in question are not a "prosecution" within the

meaning of The Evidence Act (paragraph 37).

57. It is not necessary to decide if Constable Robin was compelled to incriminate

himself. The Hearing Officer did not err by allowing the statements into evidence.

Vl. ANALYSIS OF THE HEARING OFFICER'S DECISION

Standard of Review

58. As discussed above, the appropriate standard of review over determinations of

fact and credibility is reasonableness. This standard was discussed at length by this

Commission's decision dated the 28th of July, 2008 in the matter of Hartwig and Senger, supra.

In its review of the relevant jurisprudence, the Commission in Hartwig and Senger, ibid,

concluded the deference to a hearing officer's decision on factual and credibility issues is the

same as that demonstrated by appellate courts to the decisions of trial judges. At paragraph 102

of its decision, the Commission referred to the Reasons for Judgment in the decision of the

Supreme Court of Canada in R v Gagnon, 2006 SCC 17, [2006] SCJ No 17, where the Court

stated at paragraph 10:

59.

There is general agreement on the test applicable to a review of a finding of credibility by a trial judge: the appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown. It is not enough that there is a difference of opinion with the trial judge (Schwartz v. Canada, [1996) 1 S.C.R. 254, at paras. 32-33; HL. v. Canada (Attorney General), [2005) 1 S.C.R. 401, 2005 SCC 25, at para. 74). A succinct description of the overall approach appears in R. v. Burke, [1996] 1 S.C.R. 474, at para. 4, where this Court stated that "it is only where the Court has considered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can ... overturn the trial court's verdict". With respect to the credibility of witnesses, the same standard applies.

Similar deference was demonstrated in the decisions of the Supreme Court of

Canada in HL. v Canada (Attorney General), 2005 SCC 25, [2005] 1 SCR 401 ["HL v Canada"]

and Hausen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. This same standard was applied by

the Commission in its decision in Inspector G. Shykitka v Regina Police Service (January 24,

1991).

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60. As also observed by the Commission in Hartwig and Senger it is well settled that

the hearing officer, as the trier of fact, is entitled to accept all, part or none of the evidence of a

witness. Where there are inconsistencies or where the evidence is incomplete, the hearing officer

is only required to weigh the whole of the evidence and to form a reasoned and careful

conclusion as to credibility. As illustrated by the Saskatchewan Court of Appeal in R v D.R.,

[1995] 98 CCC (3d) 353, speaking for the majority, Cameron J.A. suggested at paragraph 39:

61.

In considering the reasonableness of the jury's verdict, the court of appeal must also keep in mind the fact that the jury may reasonably and lawfully deal with inconsistencies and motive to concoct, in a variety of ways. The jury may reject the witness's evidence in its entirety. Or the jury may accept the witness's explanations for the apparent inconsistencies and the witness's denial that her testimony was provoked by improper pressures or from improper motives. Finally, the jury may accept some of the witness's evidence while rejecting other parts of it; juries are routinely charged that they may accept all of the evidence, some of the evidence, or none of the evidence of each witness. It follows that we cannot infer from the mere presence of contradictory details or motives to concoct that the jury's verdict is unreasonable. A verdict of guilty based on such evidence may very well be both reasonable and lawful.

While this decision was reversed by a majority of the Supreme Court of Canada at

R v R.(D.), [1996] 2 SCR 291, none of the judgments of the Supreme Court of Canada

challenged or criticized Justice Cameron's analysis.

62. The reasonableness standard as it relates to questions of fact is clearly articulated

by the Supreme Court of Canada in HL v Canada at paragraphs 55 and 56:

55. "Palpable and overriding error" is at once an elegant and expressive description of the entrenched and generally applicable standard of appellate review of the findings of fact at trial. But it should not be thought to displace alternative fonnulations of the governing standard. In Housen, for example, the majority (at para. 22) and the minority (at para. l 03) agreed that inferences of fact at trial may be set aside on appeal if they are "clearly wrong". Both expressions encapsulate the same principle: an appellate court will not interfere with the trial judge's findings of fact unless it can plainly identifY the imputed error, and that eiTor is shown to have affected the result.

56. In my respectful view, the test is met as well where the trial judge's findings of fact can properly be characterized as "unreasonable" or "unsupported by the evidence". ln R. v. W. (R.), [1992] 2 S.C.R. 122, McLachlin J. (as she then was) explained why courts of appeal must show pmiicular deference to trial courts on issues of credibility. At the same time, however, she noted (at pp. 131-32) that

it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.

63.

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The statutory framework in criminal matters is, of course, different in certain respects. But as a matter of principle, it seems to me that unreasonable findings of fact - relating to credibility, to primary or inferred "evidential" facts, or to facts in issue - are reviewable on appeal because they are "palpably" or "clearly" wrong. The same is true of findings that are unsupported by the evidence. I need hardly repeat, however, that appellate intervention will only be warranted where the court can explain why or in what respect the impugned finding is unreasonable or unsupported by the evidence. And the reviewing court must of course be persuaded that the impugned factual finding is likely to have affected the result.

Consistent with previous statements by the Comi about appellate intervention in

the review of factual findings by the trier of fact, the Court in F.H v McDougall, 2008 SCC 53,

[2008] SCJ No. 54 ["McDougall"] stated at paragraph 55:

64.

65.

An appellate court is only permitted to interfere with factual findings when "the trial judge [has] shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence" (H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, at para. 4 (emphasis deleted), per Fish J.). Rowles J.A. correctly acknowledged as much (para. 27). She also recognized that where there is some evidence to support an inference drawn by the trial judge, an appellate court will be hard pressed to find a palpable and overriding error. Indeed, she quoted the now well-known words to this effect in the judgment of Iacobucci and Major JJ. in Hausen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 27 of her reasons (para. 22 of Hausen).

And again at paragraph 72 and 73:

[72] With respect, I cannot interpret the reasons of the majority of the Court of Appeal other than that it disagreed with the trial judge's credibility assessment of F.H. in light of the inconsistencies in his evidence and the lack of support from the surrounding circumstances. Assessing credibility is clearly in the bailiwick of the trial judge and thus heightened deference must be accorded to the trial judge on matters of credibility. As explained by Bastarache and Abella JJ. in R. v. Gagnon, [2006] 1 S.C.R. 621,2006 SCC 17, at para. 20:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

[73] As stated above, an appellate court is only permitted to intervene when "the trial judge is shown to have committed a palpable and oven·iding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence" (H.L., at para. 4 (emphasis deleted)). The Court of Appeal made no such finding. With respect, in finding that the trial judge failed to scrutinize F.H. 's evidence in the manner required by law, it incorrectly substituted its credibility assessment for that of the trial judge.

Further, it is well settled that, on review, the individual findings of a hearing

officer should not be dissected or parsed out without regard to the whole of the evidence and its

context. As stated by this Commission in Hartwig and Senger, at paragraph 148, the Supreme

Court of Canada's decision in Ryan, at paragraph 56, is instructive:

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This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. [emphasis added]

66. It is from this standard that the essential findings of the Hearing Officer will be

examined. Before undertaking that analysis, we will first determine if the Hearing Officer

appropriately approached her review of the evidence. As stated by the Supreme Court of Canada

in Dunsmuir, (paragraphs 60 and 61 ), the governing standard to review the application of law or

jurisdiction is one of correctness.

67. For the purposes of her review of the evidence, the Hearing Officer began her

analysis by considering the question of onus.

68.

69.

In this respect, s. 93 of The Police Act is instructive:

93 No finding of: (a) a contravention of the regulations governing discipline; (b) unsuitability; or (c) incompetence;

is to be made pursuant to this Act unless the alleged contravention, unsuitability or incompetence is proven on a balance of probabilities.

She correctly determined that Chief McFee carried the onus of proving the alleged

misconduct, and that his onus was to be met by Chief McFee on a balance of probabilities (page

44).

70. In applying the simple balance of probabilities standard, she correctly applied the

standard of proof established by the Supreme Comi of Canada in its decision in McDougall. As

stated by the Court, there is no longer a spectrum or range within the standard of proof on a

balance of probabilities. The balance of probabilities is the only standard.

71. The Court stated at paragraph 40:

Like the House of Lords, I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However,

72.

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these considerations do not change the standard of proof. I am of the respectful opinion that the alternatives I have listed above should be rejected for the reasons that follow.

And again at paragraph 49:

In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to detem1ine whether it is more likely than not that an alleged event occurred.

Were the Hearing Officer'sjilzdings offact reasonable?

73. The reasons for the decision of the Hearing Officer involve an extensive review of

the evidence. Her decision begins with an overview of the evidence and essential findings at

pages 7 to 13. A detailed chronology of events follows for some 30 pages. She reviewed the

evidence of all witnesses with the exception of the evidence of Heidi Lebell. The decision

further examines the evidence as it relates to the specific grounds in the Order of Dismissal for

some 28 pages. Throughout her review ofthe evidence, the Hearing Officer directed her mind to

and organized the evidence as it related to each of the grounds given in the Order for Dismissal.

She reviewed the evidence in further detail as it related to her specific findings. She summarized

her conclusions and findings of misconduct at pages 76 and 77.

74. In reviewing the evidence of individual witnesses, including the evidence of

Constable Robin, the Hearing Officer carefully considered contradictory or controversial

versions of relevant events. She considered the competing theories and explanations given by

counsel as to the characterization of these events and Constable Robin's motives. She was

reasoned and discriminating in her review of the evidence. Her failure to refer to the evidence of

one witness does not raise an inference that she erred in any way. At its highest, it merely raises

an inference that she either rejected the evidence or considered it to be of minimal relevance.

75. More importantly, much of the evidence relating to the charges involving

Constable Robin's loyalty, integrity and suitability was admitted by Constable Robin himself in

his two interviews with PCC Investigator Wade. Constable Robin vigorously opposed the

introduction of his statements into evidence before the Hearing Officer. On this appeal, he asked

the Commission to conclude that the Hearing Officer erred by accepting these admissions into

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evidence. As stated above, we concluded this evidence was properly admissible and considered

by the Hearing Officer.

76. She was required to weigh the whole of the evidence. In our review of the record,

we are reminded that considerable deference must be afforded the factual and credibility

determinations made by the trier of fact. We are not entitled to simply substitute our conclusions

about credibility for that of the Hearing Officer.

77. Having reviewed the evidence before the Hearing Officer, we conclude there was

sufficient evidence before the Hearing Officer to support the findings of fact contained in her

reasons and relevant for the purposes of this appeal. Where there were issues of credibility or

other controversy in the evidence, the Hearing Officer demonstrated a reasoned approach to

resolving those issues. We conclude it was reasonable for the Hearing Officer to make the

findings she did.

78. On the basis of the record, we cannot identify any palpable or overriding error in

the Hearing Officer's review of the evidence and her relevant findings of fact.

Did the Hearing Officer follow the correct approach in her application of the law?

79. Before undertaking her analysis of the evidence in relation to the grounds, she

correctly tumed her mind to the question before her: whether Constable Robin was unsuitable or

inappropriate for police service.

80. She correctly referred to the statutory basis for Chief McFee's power and

authority to dismiss on that ground. She correctly identified the statutory provision under s. 61

under which Chief McFee's decision was appealed to her (page 43).

81. As stated above, she correctly identified Chief McFee's onus of proof under s. 93

to prove unsuitability or incompetence on a balance of probabilities. She expressly undertook to

apply that standard to each of her findings (page 44).

-20-

82. Before undertaking her analysis, she then identified the definition of"unsuitable".

She followed the well settled articulation of that standard, articulated by the decision of Laing (as

he then was) in The Regina Police Service and Chief Reimer and Daryl Gartner (March 22,

1994) ["Gartner"]:

83.

On the question of what constitutes "unsuitable" within the meaning of the Act, I note the comments of the hearing officer in The Regina Police Service and Chief Reimer and Dwyl Gartner (March 22, 1994) at page 5:

The Act does not define the word "unsuitable". BLACK'S LAW DICTIONARY, 5TH

Edition, defines the word "suitable" as follows:

Fit and appropriate for the end in view.

WEST'S LEGAL THESAURUS/DICTIONARY defines the word suitable as follows:

Fit and acceptable for the end in view. See appropriate, fit, proper, admissible, competent, worthy.

We accept the definition in BLACK'S LAW DICTIONARY.

It will be noted that Section 60 requires that the Chief of Police arrive at an opinion that a member is unsuitable (no longer fit or appropriate) for police service before the Chief can invoke the balance of the provisions of Section 60. In a decision of this commission in the matter of Vienot v. Regina Police Service dated February 23, 1990, this Commission had occasion to consider the word "unfit" as the same appeared in then Regulation 3.0 l ( 12). This Commission commented at Page 9 on the test an adjudicator should adopt in determining the question of"unfitness". We stated:

"The question of unfitness is for the adjudicator to decide. By definition the question of unfitness is a matter of opinion to be arrived at objectively after considering the surrounding factual information ... "

We consider the foregoing test to be equally applicable to the wording "unsuitable" as the same appears in Section 60 of the Act. [emphasis in original]

She also quoted with approval from hearing officer Silversides' reasons in

Panteluk and Chief of Police of the Estevan Police Service (January 30, 1999) ["Panteluk"],

stating:

This approach has also been adopted by hearing officer Silversides in Panteluk and Chief of Police of the Estevan Police Service (January 20, 1999). In that case, the hearing officer says:

In attempting to determine whether an officer is unsuitable or incompetent to continue as a member of the police service, I am also mindful of the standard of conduct required of a police officer. In Gemmell and Kojima and Vancouver Police Department (B.C. Adj. July 27, 2005), the adjudicator, quoting from a previous decision, stated, at p. 17:

84.

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As members of the Force, we are expected to act in an exemplary manner and, at all times, our conduct must be beyond reproach. The Board directs Constable M's attention to the fact that the nature of our profession, as peace officers, demands that we set ourselves a much higher standard of conduct than [sic] what is expected of a member of the general public, and that we are willing to live by a much stricter code of self­discipline. We must be mindful that our everyday actions, both on the job and in private life, are judged by the public in our role as peace officers.

Society expects and deserves a high standard of honesty, trustworthiness, and integrity from its police officers .... A police officer is a person occupying a position of trust, and has a special role and status in the community which confers upon him or her elevated levels of power and authority. A breach of the contract of trust loses society's confidence, and impairs the ability of our Forces to effectively function within the community.

At the hearing of this appeal, all counsel accepted the definition of unsuitability

from Gartner, supra as the controlling definition. This same test had been applied in other cases

from other jurisdictions and was cited by counsel for Constable Robin. While the suitability

cases cited by all counsel involved differing outcomes, the legal test is consistent throughout. In

this case, the Hearing Officer identified and applied the correct test.

85. In the context of detennining the test for suitability, she considered the

importance of a police officer's due regard for police service policy and the chain of command in

the police service. She considered the additional factors required on the appeal pursuant to s. 63

of The Police Act. She then considered the powers given to her on the hearing of the appeal by s.

65 of The Police Act.

86. Following the approach required of her under The Police Act, and with the

agreement of the parties, she articulated and undertook this analysis:

The Order of Dismissal sets out a number of grounds on which Chief McFee relies for his conclusion that Robin is unsuitable for police service. The parties generally agree to this approach:

1. must first examine the evidence with respect to each of the Chief's grounds to determine whether Robin engaged in the conduct as alleged and whether the conduct warrants a disciplinary response;

2. Then, in light of the grounds I find to be proven, I must decide whether there was a sufficient basis for Chief McFee to conclude Robin is unsuitable for police service;

3. Depending on the answer to question 2, I may also have to consider the terms on which I might vary the Chief's decision and whether there is any other order I consider appropriate.

-22-

87. In all of these respects, the Hearing Officer was conect in her approach.

Was it reasonable for the Hearing Officer to conclude Chief McFee had not proved Constable

Robin was unsuitable? Informing this conclusion, did she follow the relevant law?

88. As stated above, the Hearing Officer detailed her examination of the

circumstances relating to each of the individual grounds in the Order of Dismissal, and formed

conclusions about Constable Robin's intent. In the course of this very extensive review of the

evidence in relation to each ground of the Order of Dismissal, she concluded that Chief McFee

had proved, on a balance of probabilities, virtually every element of every factual ground, with

the exception of Ground #4 G). She provided this summary of her relevant findings at pages 76

and 77:

Summary of Conclusions (collectively. the "Misconduct")

In summary, I have found the following, on a balance of probabilities:

• There were two instances of improper disclosure of information, one when Robin gave the Kulyk Memorandum to Mike Parenteau and one when Robin shared information from the Reimer Ticket prosecution file with Ian Reiman.

• Robin engaged in insubordinate and unbecoming conduct when he arranged to have the subpoena issued to himself so he could attend court to prosecute the Reimer matter when he knew if he sought approval for overtime to attend court to prosecute, his superiors would almost cettainly have denied the request.

• Robin mislead [sic] Sergeant Kellett about his communications with Kulyk. He deliberately avoided keeping Kellett informed as events unfolded. This was unbecoming conduct.

• Robin engaged in unbecoming conduct when, knowing he had been directed not to contact the witnesses in the Reimer Ticket matter, he provided contact information to Reiman so that Reiman could contact the witnesses to tell them the prosecution had been withdrawn and that Robin was "taking heat" because of it.

• Robin made false and misleading statements to PCC Investigator Wade in relation to sharing information from the Reimer Ticket file with Wade.

• By actively pursuing the Reimer Ticket prosecution against a citizen who had complained against him, Robin put himself in a perceived conflict of interest. By pursuing the prosecution because of his personal interest in ensuring there was a conviction, Robin put himself in a situation of actual conflict of interest. This is conduct unbecoming a police officer.

89.

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• Robin engaged in conduct unbecoming a police officer when he chose, without seeking pennission from his superiors to do so, to personally prosecute the Reimer Ticket after the Crown prosecutor chose not to proceed with the case.

• Robin engaged in conduct unbecoming a police officer when, during the PCC investigation interviews, without having taken any steps to verify his information, he told the investigator that Sergeant Kellett had stopped the Lukowski subpoena.

• Robin made false or misleading statements and engaged in conduct unbecoming a police officer when, during the PCC investigation interviews, without having taken any steps to verify his information, he accused Inspector Georgeson of interfering with the Reimer Ticker.

• Robin engaged in discreditable conduct when, without reasonable and probable grounds to do so, he made accusations of obstruction of justice against McFee and others at the P A Police Service.

Having identified the powers available to her under s. 65 of The Police Act, she

then tumed her mind to the question of Constable Robin's suitability. As required by s. 63 of

The Police Act, she considered whether remedial efforts would have been appropriate. In so

doing, she coiTectly stated that this question must be determined in the context of the officer's

inherent suitability. She referred to the relevant jurisprudence, including those cases which

suggest remedial efforts are not mandatory in all cases before dismissal is appropriate. She

coiTectly noted there may be cases where the member is incapable of rehabilitation or where it

would be otherwise unreasonable to attempt rehabilitation.

90. She coiTectly identified the test as requiring an assessment of the individual

officer's ability to perform or rehabilitate, and the damage that may occur to the reputation of the

police service if the officer continued to serve. In so doing she moved on to consider Constable

Robin's capacity to rehabilitate or reform. She considered the potential damage to the reputation

of the Police Service if he were to remain. She considered the other factors identified by the

jurisprudence as relevant, including the seriousness of the transgression, and consistency with

outcomes in other cases involving similar misconduct.

91.

way:

At the end of her analysis at page 88 she summed up the test for unsuitability this

The common theme in all the cases is that because dismissal is the most serious punishment that can be imposed, it should be reserved for those cases where the conduct is no [sic] reprehensible

92.

-24-

that the officer is no longer useful to the service. While Constable Robin's Misconduct is very serious, a review of these cases suggests that it falls short of the conduct required to warrant dismissal, but it is so serious that a harsh disciplinary penalty should be imposed.

In the final analysis she determined that there was still room for Constable Robin

to demonstrate his suitability, and that he was not given a reasonable opportunity to bring his

perfonnance to an acceptable standard. She concluded that his misconduct did not rise to the

level of rendering him unsuitable to continue as an officer with the Prince Albert Police Service.

She went on to make an order for coaching, training, and other steps to remediate Constable

Robin's performance to an acceptable standard.

93. With respect, this is where the Hearing Officer misapprehended what the

Legislature requires in determining unsuitability. While she correctly described the qualifying

behaviour as being serious and "reprehensible", she seemed to regard a finding of unsuitability

as a mere penal consequence along a spectrum of outcomes intended to punish members for

conduct unbecoming.

94. The Police Act creates two categories of misconduct. The first involves

misconduct that is deserving of a penalty but does not rise to a level of unsuitability. The second

is where a member is unsuitable or incompetent for police service and where the chief of police

then has the power to dismiss. When s. 60 is read as a whole it is clearly intended to authorize

dismissal where a member is inherently unsuitable and therefore incapable of rehabilitation, even

where there is no established history of disciplinary action respecting that member. The broad

objectives of a chiefs power under s. 60 are to ensure members are suited to be effective police

officers and to maintain public confidence in the police service generally.

95. A finding of unsuitability is not a penalty that should follow a given course of

conduct. It is a consequence that necessarily follows when the member's behaviour or

misconduct is such that he or she is no longer suitable. A finding of unsuitability is not reserved

for the very worst conduct. But it is a finding that will suppmi dismissal where the member's

conduct brings their integrity and therefore their suitability as an officer into doubt. The inquiry

should be focused on how the officer's inherent qualities are manifest in behaviour. Dismissal

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based on a finding of unsuitability is not a mere punitive measure, but is instead intended to

ensure a standard of suitability among all police officers that will ensure good and effective

policing generally.

96. The suitability of a police officer may involve a broad examination of the

officer's intrinsic qualities. In this case, Constable Robin's misconduct compels an examination

of his character. Good character is fundamental to a police officer's suitability. An officer's

good character is legitimately brought into question where his or her conduct objectively

demonstrates a breach of the duties of loyalty and integrity. Where there is a history of

persisting insubordination, the officer may be unlikely to reform. The working relationship

between the officer and his or her supervisor may be iiTetrievably lost. Where there is evidence

of forethought and planning, and a pattem of deception, there is a reasonable apprehension the

member cannot be trusted in general. The reputation and credibility of the police serv1ce

generally may be compromised if an officer is allowed to serve in those circumstances.

97. On an objective analysis, it is impmiant to consider the whole of the evidence,

and to draw such inferences involving inherent character, including his or her loyalty and

integrity, as are objectively reasonable from the member's behaviour, including his or her

misconduct. Where the member's behaviour is incompatible with the requisite standard of

loyalty and integrity, he or she is unsuitable to serve as a police officer.

98. In a suitability inquiry, the question is: Does the misconduct reflect the qualities

and character of an individual suited to serve as a police officer, such that the public's

confidence in the police service is maintained?

99. The Hearing Officer concluded that Constable Robin's misconduct was

unacceptable. The question on this appeal is whether the Hearing Officer's conclusion about

Constable Robin's ability to reform and rehabilitate is objectively reasonable, based on her

findings of fact.

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100. Put another way, is the Hearing Officer's determination of suitability objectively

reasonable? Are the assumptions and conclusions about rehabilitation reasonable and supported

by the evidence? Or is Constable Robin lacking the appropriate good character required of a

police officer and is he therefore inherently unsuitable?

101. As outlined above, the Hearing Officer made several findings about Constable

Robin's competence, professionalism, integrity, and loyalty. While these findings raised serious

questions about Constable Robin's suitability, she summarily concluded he was remorseful, had

the potential to be rehabilitated, and was therefore not unsuitable.

1 02. But is remorse or the desire to reform enough if the evidence raises serious

questions about his integrity, loyalty, and judgment?

103. As the Hearing Officer correctly concluded from the jurisprudence referred to her

in her decision, it is not necessary in every case to make remedial efforts. Section 63 of The

Police Act only requires the same where it is reasonable to do so. The Hearing Officers in

Panteluk and the other decisions cited by the Hearing Officer confinn the same (pages 78 to 79).

104. Our analysis requires a review of her decision, and whether her findings on the

evidence can objectively and legitimately stand together with her conclusion.

105. The findings of the Hearing Officer detailed above at paragraph 77 show a

persisting pattern of behaviour involving deception, insubordination, and poor judgment. In his

evidence before the Hearing Officer, she concluded Constable Robin was not forthcoming about

his misconduct, and was not immediately contrite or remorseful. He was instead evasive,

defensive, inconsistent, and lacking in credibility (page 4 7).

106. In other aspects ofher decision she did not believe Constable Robin's testimony.

She preferred the evidence of other witnesses over the evidence of Constable Robin, including

the evidence ofK.risty Wright (page 68).

-27-

107. In her analysis, she characterized the misconduct in two ways (pages 83 to 84 ). In

the first category, she suggested Constable Robin's behaviour demonstrated "stubbornness and

unwillingness to accept another's point of view. It also demonstrates disregard for policy and

process." As to the second category of behaviour she said this:

108.

The second category of Misconduct is even more serious. It includes conduct, most of which happened after Robin's superiors discovered he had prosecuted the Reimer case. This Misconduct includes, among others, false and misleading statements to the PCC investigator and reckless allegations of misconduct against the Chief and other senior officers with the PA Police Service.

Her previous and more detailed characterization of this misconduct involves an

overarching theme of deliberateness or recklessness on Constable Robin's part, and an attempt

by him to justify and minimize his behaviour. At paragraph 77 she made reference to the

credibility of Constable Robin's testimony at the hearing itself. She stated at page 4 7:

109.

In his testimony in chief and especially in cross-examination, when Robin wanted to avoid detail he thought might get him into trouble, he said things like "and stuff' or "that's how I articulated it" to try to gloss over. Robin had very specific recollection of certain events and then would be unable to remember specifics of other events one would expect him to remember, like the conversation when Sergeant Kellett asked him if he had talked to Joe Kulyk. I believe Robin tried to be truthful during the hearing, but found himself lapsing into defensive postures at times. This affects his credibility.

There are also inconsistencies in Robin's evidence. One example is in relation to his testimony at the hearing that on June 15,2009, when he took the initial call from Casey Reimer, during that call Reimer told Robin to "fuck off'. In the PCC interview, Robin said three times that he didn't recall Reimer telling him to "fuck off'. At one point he even said if he had remembered hearing Reimer say that, he would have documented it. At the hearing Robin said he had just remembered Reimer's comment later.

Robin's credibility is also adversely affected by the way he handled the PCC investigator's questions about Reiman's phone calls to the witnesses. I will say more about this later in this decision.

The Hearing Officer concluded at pages 84 and 85 that Constable Robin acted

inationally, was acting to protect himself and was under the influence of Ian Reiman. She

stated:

For a long time, even into this hearing, Robin seemed unable to accept that back in June of2009, his superiors were concerned about the way he acted towards Casey Reimer, not about the fact he had issued a ticket to Casey Reimer. It was Robin's lack of judgment and insight in this regard that lead [sic] to him embark [sic] on the path that resulted in his dismissal. I am satisfied, however, that by the end of the hearing, Robin had come to realize that he needs to distinguish between what he does and how he does it. [emphasis in original]

-28-

Robin was so focused on what he thought would take pressure off himself that he acted and thought irrationally. Everything he did was influenced by the fact he had discipline proceedings pending against him. He was also influenced by Ian Reiman which was a huge mistake. Reiman obviously has his own unresolved issues with Chief McFee and the P A Police Service and was trying to use Robin to resolve those issues. I expect that without Reiman's "advice", Robin may have acted differently. [emphasis added]

I note in Robin's favour that more than one of his superiors said that when Robin had coaching in the past he was successful. Sergeant Kellett said he had a good relationship with Robin. Constable Glynn said Robin was a hard working officer, that Robin cared about his work, showed up for work and did what was asked of him. Glynn never saw any problem with Robin's work.

Robin claims he can still do his job as a police officer in a fair, effective and honest manner and that he can work with senior administration if he is given the opportunity.

110. On that basis, the Hearing Officer concluded Constable Robin was not unsuitable

and should be given an opportunity to be rehabilitated.

111. In this respect, the Hearing Officer's conclusions about suitability cannot be

reconciled against her findings of dishonesty and disloyalty. In the reasons supporting her

ultimate conclusion, the Hearing Officer did not refer to any evidence mitigating concerns about

his honesty, such that he could be trusted in all respects. She did conclude he was genuinely

regretful and apologetic. But this does not, on any objective basis, mitigate the persisting

concern about his integrity.

112. While Constable Robin's knowledge of policy is a weakness that could be

rehabilitated by training or education, the more serious aspects of his misconduct reflect intrinsic

and intractable character qualities that cannot be rehabilitated. As the Hearing Officer

concluded, he was motivated to protect his own interests and for that reason lied to or deceived a

Crown Prosecutor and the PCC Investigator. He committed several acts of disloyalty. He made

unfounded allegations of serious criminal wrongdoing on the part of his superiors, including

Chief McFee. These behaviours persisted as part of a deliberate pattern or course of conduct

over a period of some months.

113. It is no answer to suggest he was pressured by his own interests, and the influence

of Ian Reiman, to behave as he did. A police officer must be trusted at all times, including

circumstances where he or she is under pressure and his or her interests are brought into conflict

-29-

with his or her duty as a police officer. It is when the stresses on a police officer are greatest that

an officer must be trusted in all respects.

114. Integrity is a f-undamentally important quality of any person who seeks to serve as

a police officer. It is a quality of character essential to every officer's good character.

115. The integrity and reputation of a police officer is of paramount importance to a

police service, the public, and the criminal justice system.

116.

issue:

117.

At page 89 of her decision, the Hearing Officer concluded this about the ultimate

If these behaviors are a matter of attitude, then Robin should be capable of changing his attitude and behaving differently in future. If Robin's behaviors are a matter of character, then Robin may not be able to change. At this point, we don't know the answer yet because he hasn't been given the chance yet to demonstrate he can behave differently in future.

The evidence and findings of the Hearing Officer objectively support only one

conclusion: Constable Robin's integrity and loyalty problems are an aspect of his character that

cannot be rehabilitated.

118. There is nothing in the evidence to suggest any event or condition vacating his

state of mind and intention to mislead and disobey. To the contrary, the evidence shows a course

of conduct where he deliberately and repeatedly lied. The Hearing Officer found that he

deceived and disobeyed his superiors and made scandalous and baseless allegations about them.

His conduct may well be characterized as irrational. But the Hearing Officer also found he acted

intentionally and purposely, and did so to protect his own interests.

119. These behaviours reflect aspects of character and not something that could easily

be rehabilitated in the future. The Hearing Officer did not explain how matters of character and

integrity could be rehabilitated. From the Commission's review of the record, there is no

evidence to show that Constable Robin's integrity problems could be rehabilitated. To the

contrary, the Hearing Officer suggested he may not be capable of changing behaviours that are a

matter of character".

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120. The Hearing Officer did examine the impact of his behaviour on the "reputation

of the police service". She concluded his conduct did not "tarnish the service as a whole". She

concluded therefore that reinstating would not cause "in·etrievable harm to the service". With

respect, this analysis is incomplete. A proper analysis should have examined Constable Robin's

credibility and reliability and therefore his effectiveness as a police officer.

121. As summarized above, she articulated several findings that could be used in a

future criminal proceeding to impeach Constable Robin's credibility:

122.

(a) He prosecuted a charge to exonerate himself, thereby acting in an actual conflict

of interest;

(b) He followed a pattern of insubordination over a period of several months where

he acted in direct violation of an order of his Chief to not contact witnesses to a

charge he laid. Again, he did so to protect his own interests;

(c) While his own conduct was under investigation, he lied to the PCC Investigator

under circumstances where it may also be infened he did so to protect his own

interests;

(d) He deliberately failed to infmm Crown Prosecutor Kulyk he was pursuing a

charge and did issue a subpoena to ensure payment for himself. Again, he was

insubordinate and deceptive to advance his own interest; and

(e) He made baseless and scandalous allegations of serious criminal behaviour,

including obstruction of justice, against a Sergeant, an Inspector, and the Chief of

Police. He did so while under investigation. While the Hearing Officer did not

expressly conclude he did so to deflect responsibility for his actions, this

inference easily arises in the circumstances, and could be raised on cross

examination to impeach his credibility.

The role of a police officer is an essential element of any criminal proceeding. It

is the primary responsibility of a police officer to investigate criminal complaints, and to lay such

- 31 -

charges as may be proved on the evidence and in the public interest to prosecute. The testimony

of an investigating officer is relevant, and often critical, to the proof of criminal charges. The

personal credibility and reliability of the individual police officer is fundamental to his or her

effectiveness.

123. The responsibilities of a police officer must be discharged without actual or

apparent bias, and without regard to the personal interests of the officer. Where an officer has a

demonstrated history of preferring his or her own interest in laying, and indeed prosecuting, a

charge to protect his or her own interests, it raises serious concems about his or her objectivity

and judgment. Problems relating to his or her integrity and credibility are compounded where

such behaviour involves a pattem of lies and deliberate deception, insubordination, and making

baseless charges against members of his or her own service to serve his or her own interests.

124. The above described findings are now a matter of public record, and would

provide a fertile basis for any cross examiner to successfully impeach his credibility as a witness

in any future criminal proceeding where Constable Robin's evidence is necessary. It raises

serious concems about his future effectiveness as a witness, and therefore as a police officer.

125. The Hearing Officer did not fully or appropriately examine this question in her

analysis and reasons. Her conclusion that he was a good and competent officer in other respects

does not mitigate the very obvious concems about his integrity, his credibility and therefore his

suitability as a police officer.

126. These behaviours reflect the character of an individual who does not have the

requisite qualities of honesty, loyalty, and good character required of a police officer. To the

contrary, these actions bring the integrity, probity, and efficacy of Constable Robin and the

Prince Albert Police Service into doubt.

127. These are the only conclusions that can objectively follow the essential findings

of the Hearing Officer. Constable Robin's suitability is beyond any reasonable prospect of

remediation. It was not reasonable for the Hearing Officer to conclude that steps toward

rehabilitation should have been taken before dismissal.

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VI. CONCLUSION & ORDER

128. The findings of the Hearing Officer support only one conclusion. Constable

Robin was unsuitable for police service. It was unreasonable for her to conclude otherwise.

129. We reached this conclusion on our analysis ofthe findings of the Hearing Officer,

without regard to the events that were the subject of other disciplinary proceedings not before the

Hearing Officer, and without regard to the fresh evidence filed with and heard by the

Commission.

130. We have given serious consideration to the serious nature of a dismissal -order. It

is the most serious sanction. It strips an officer of his or her identity and creates an enduring

stigma. While there is an obvious punitive element to this sanction, a finding of unsuitability is

not meant to punish, or to make an example of the subject officer. Where an officer is not suited

to serve, the public interest is protected by his or her dismissal.

131. On an objective analysis of the essential findings of the Hearing Officer, there is

no other reasonable conclusion supported by the evidence. We find Constable Robin to be

unsuitable for service as a police officer. For that reason, the appeal of Chief McFee is allowed.

The decision of the Hearing Officer is set aside in all respects. In the result, the Order of

Dismissal of Chief McFee is restored.

132. The parties have leave to apply to the Commission for such further relief or

directions as may be required to give effect to or are consequential to this decision.

DATED at the City of Regina in the Province of Saskatchewan this 8th day of

April, 20 15.

Per: Paul H. A. Korpan, Chair: Appeal Hearing Panel Saskatchewan Police Commission