COURT FILE NO.: 295/02

DATE: 20021025

SUPERIOR COURT OF JUSTICE - ONTARIO

(Divisional Court)

RE: RONALD DONALD PETERSEN, Applicant - and - MINISTER OF TRAINING, COLLEGES & UNIVERSITIES, Respondent

BEFORE: BLAIR, R.S.J, CARNWATH & McNEELY JJ.

COUNSEL: Morris Cooper, for the Applicant Luba Kowal & Daniel Guttman, for the Respondent

HEARD: October 2, 2002

ENDORSEMENT

CARNWATH J.

[1] The application is dismissed with costs to the respondent fixed at $5,000, inclusive of GST.

[2] One of the purposes of the Industry Committee was to advise the Minister: Apprenticeship and Certification Act, 1998 secs. 5(a).

[3] The Minister had the power to appoint the required number of committee members. [sec. 5(2)] By virtue of s. 28(1) of the Interpretation Act, the Minister had the discretionary power to revoke an appointment.

[4] In determining the standard of review for the exercise of the Minister's discretion a pragmatic and functional approach must be employed: Baker v. Canada, [1999] 2 S.C.R. 817, para. 53.

Applying the factors enumerated in Pushpanathan v. Canada (Min. of Citizenship and Immigration), [1998] 1 S.C.R. 982, paragraph 27, we conclude the standard of review to be, at the least, reasonableness simpliciter, if not patently unreasonable.

[5] Members of the public have been exposed to widely disseminated information tending to show that the Hell's Angels Club is closely connected to organized crime and that many of its members have been convicted of serious criminal offences: Criminal Intelligence Services Canada, 2002 Annual Report; Brown v. Durham Regional Police Force (1996), 134 D.L.R. (4th) 177 (Gen. Div.), aff'd (1998), 167 D.L.R. (4th) 672 (C.A.).

[6] Counsel for the applicant submits that freedom of association under s. 2(d) of the Charter means the freedom from being found guilty by association. We do not accept this submission. "Guilt by association" is a notion relating to the criminal law principles of reasonable doubt and the presumption of innocence. It is not an aspect of the basic right to freedom of association that is guaranteed by the Charter, namely "the freedom to establish, belong to and maintain an association": Professional Institute v. N.W.T., [1990] 2 S.C.R. 367 at 402.

[7] The Minister, in the exercise of her discretion to revoke did not act unreasonably when she removed from the Committee an admitted member of the Hell's Angels. She was not required to retain an advisor in whose judgment she no longer had confidence, given his membership in the Hell's Angels.

[8] There was no violation of Mr. Petersen's Charter rights of freedom of association. He is free to associate with the Hell's Angels. We reject the argument he is coerced to resign from the Hell's, in order to remain on the committee. This argument was rejected the Court of Appeal in Nunziata v. Toronto (City) (Clerk) (2000), 50 O.R. (3d) 295 (C.A.) para. [13].

[9] The applicant is not assisted by the decisions in Re Dewar et al. and Re Hewat et al. The Boards in question had different purposes and powers. They were quasi-judicial in nature whose members were appointed by Orders-in-Council, not by a Minister. The issue here is not whether Mr. Petersen was appointed at pleasure, but rather his appropriateness as an advisor to the Minister: See Re Dewar et al. v. The Queen in Right of Ontario (1996), 30 O.R. (3d) 334, aff'd on appeal to the Court of Appeal, (1998), 37 O.R. (3d) 170, Re Hewat et al v. The Queen in Right of Ontario (1998), 37 O.R. (3d) 161, on appeal from (1997), 32 O.R. (3d) 622.

BLAIR R.S.J.

CARNWATH J.

DATE: 20021025

McNEELY, J. (Dissenting):

[1] I would quash the decision of the Minister. I agree that her decision does not breach the applicant’s charter right to freedom of association and that her discretion to revoke an appointment is wide. It is not, however, an absolute discretion and must be exercised having regard to the purpose for which it was granted.

[2] In the present case that purpose is to ensure that appointees are qualified to carry out the role of a member of the Motorcycle Marine Engine and Small Engine Technician Committee. This committee is one of 21 industry committees under the Apprenticeship and Certification Act 1998 and the evidence is that it meets about once a year.

[3] It is acknowledged by counsel for the Minister that Mr. Peterson is a person of good character and integrity, that he possesses exceptional qualifications to contribute to the work of the committee, and that he has in fact so contributed.

[4] The appointment of Mr. Peterson was pursuant to Section 11 of Ont. Reg. 573/99 under the Apprenticeship and Certificate Act 1998 which requires that appointments be for “terms of not less than three or more than five years”. Mr. Peterson was appointed on February 23, 2000 for a three-year term ending February 23, 2003.

[5] Given the fixed term of the appointment, the admitted good character and qualifications of Mr. Peterson, the limited role of the committee and the fact that it only meets once a year, I find the Minister’s action in dismissing Mr. Peterson in the middle of his term of office on the sole ground of his membership in Hells Angels to be an unreasonable exercise of her discretion.

E.G. McNeely J.

Released: 20021025