DATE: 20000925

DOCKET: C33643

COURT OF APPEAL FOR ONTARIO

RE: SHANNON N. GILBERT (Respondent/Applicant) –and– THE COMMISSIONER OF THE ONTARIO PROVINCIAL POLICE FORCE and SUPERINTENDENT R.J. FITCHES (Appellants/Respondents)

BEFORE: FINLAYSON, CARTHY JJ.A. and SIMMONS J. (ad hoc)

COUNSEL: William J. Manuel, for the appellants

W. Michael Temple, Q.C. and Lorna E. Boyd, for the respondent

HEARD: September 14 and 15, 2000

On appeal from the order of the Divisional Court of Ontario (Mr. Justice John G.J. O’Driscoll, Mr. Justice Archie G. Campbell and Madam Justice Jean L. MacFarland JJ.) dated November 1, 1999.

E N D O R S E M E N T

[1] The Commissioner of the Ontario Provincial Police Forces and Superintendent R.J. Fitches appeal from a decision of the Divisional Court quashing a decision of an Adjudicator presiding over a discipline hearing of the respondent under the Police Services Act.

[2] The respondent (hereinafter “Gilbert”) is an O.P.P. officer. He is alleged to have sexually assaulted the complainant in 1985 and to have used a weapon in doing so. The complainant lives in Edmonton and “recovered her memory” of the alleged sexual assault sometime in 1992. Eventually, Gilbert was charged under the Criminal Code. The Commissioner of the O.P.P. also sought to discipline Gilbert pursuant to the Police Services Act (Ontario).

[3] The criminal charges proceeded to a preliminary inquiry, following which Gilbert was committed to stand trial. Before the trial began, the complainant for health and various other reasons indicated that she did not want to testify at trial. The Crown withdrew the charges.

[4] The disciplinary charge under the Police Services Act, R.S.O. 1990 Chap. P.15 proceeded to hearing. The complainant, despite the best efforts of the prosecutor to persuade her otherwise, refused to testify at this proceeding. The prosecutor then sought to have the transcripts from the preliminary inquiry, including the testimony of the complainant, received into evidence at the hearing. The Adjudicator admitted the evidence.

[5] On judicial review, the Divisional Court quashed the Adjudicator’s ruling on the admissibility of this transcript. The court also prohibited the continuation of the discipline hearing and dismissed the charge of discreditable conduct against Gilbert. The Divisional Court in its reasons expressed concerns about the transcript evidence, as the complainant was not fully cross-examined at the preliminary inquiry on her “recovered memory”.

Because there is in these particular circumstances no opportunity to cross-examine in relation to a fundamental aspect of the alleged misconduct, and a fundamental aspect of the defence, the filing of the transcript amounts to a denial of natural justice resulting in a loss of jurisdiction.

This application may be premature in the technical sense that it turns on a preliminary ruling in respect of evidence. It is also true that there would be after a concluded hearing, an alternative remedy by way of appeal. However Mr. Temple indicates that the disclosure to him suggests that the entire case for the prosecution before the tribunal depends entirely on the transcript. This attracts in the unusual circumstances of this case the principle in Gage v. Attorney General (1992), 1992 8517 (ON SCDC), 90 D.L.R. (4^th) 537. There would be a real prospect of unfairness through a denial of natural justice should these proceedings continue and there is in these circumstances no practical utility in requiring the conclusion of the proceedings and the exhaustion of all other alternative remedies.

[6] Counsel for the appellant submitted that the remedy of judicial review was premature in that the proceeding before the Adjudicator should have been allowed to continue to its completion, at which time, if the respondent was dissatisfied with the decision, he could avail himself of whatever remedy he considered appropriate. As indicated in its reasons above, the Divisional Court was aware that the matter was premature but in the circumstances concluded that there was no practical utility in allowing the matter to proceed.

[7] It appears from material made available to the Divisional Court and not before the Adjudicator that sometime after the termination of the preliminary hearing, counsel for the accused Gilbert, who was not counsel in these proceedings, made an O’Connor application before Thompson J., a judge of the Ontario Court (General Division), for the production from a therapist of notes she had made in the course of treating the alleged victim of the sexual assault for her recovered memory. In the course of his reasons granting the application, Thompson J. stated:

These aforementioned factors were helpful in assisting me in my deliberations and are capable of serving as general guidelines applicable in the future on a case-by-case basis. However, a fundamental principle of the criminal justice system, that is, the correct disposal of litigation through a full and fair fact-finding process, is one of the paramount factors. As Mr. Justice Galligan stated in Regina v. J. (F.E.) (1989), 1989 7131 (ON CA), 53 C.C.C. (3d) 64 at 67-68 (Ont. C.A.):

While there is no scale upon which conflicting evils can be weighed, it should be remembered that revolting as child sexual abuse is, it would be horrible for an innocent person to be convicted of it. For that reason I think the courts must be vigilant to ensure that the zeal to punish child sexual abusers does not erode the rules which the courts have developed over the centuries to prevent the conviction of the innocent.

[8] We are also instructed that that it was following the O’Connor ruling that the complainant advised the Crown that she did not wish to testify further. The Crown then discontinued the criminal proceedings with an undertaking not to re-instate them. The originals of the documents produced pursuant to the order of Thompson J. were returned to the therapist and the Crown’s copies of the documents were destroyed.

[9] So far as the proceedings before the Adjudicator were concerned, it was agreed by all parties that the Adjudicator had no power to compel the complainant’s attendance because she lived in British Columbia. In the result she could not be cross-examined further with respect to the therapist’s notes and there is considerable doubt that the therapist was compellible because she too lived out of Ontario, although in Canada.

[10] We find it incredible that counsel for the parties to the discipline proceedings were unaware of the O’Connor application and what resulted from it. Had the Adjudicator known what was available to Thompson J. on the O’Connor application, he would most certainly have entertained serious doubts about the necessity and reliability of the evidence of the complainant as transcribed at the preliminary hearing. Section 715 of the Criminal Code does not contemplate the refusal to testify of a competent witness who resides in Canada and it would be difficult to justify admitting the complainant’s transcript into evidence on any normal rule governing the admissibility of what would otherwise be hearsay.

[11] Accordingly, while acceding to the submission of the appellant’s counsel that this application for judicial review would in the normal circumstance be premature, we are not prepared, in the unusual circumstances of this case, to interfere with discretion of the Divisional Court in disposing of the matter in the way that it did.

[12] Accordingly, the appeal is dismissed with costs.

Signed: “G.D. Finlayson J.A.”

“J.J. Carthy J.A.”

“J. Simmons J. (ad hoc)