SUPREME COURT OF CANADA
Citation: Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 S.C.R. 591, 2007 SCC 14
Date: 20070322
Docket: 31103
Between:
City of Lévis
Appellant
and
Fraternité des policiers de Lévis Inc. and Danny Belleau
Respondents
‑ and ‑
Association des policières et policiers provinciaux du Québec
Intervener
Official English Translation: Reasons of Deschamps and Fish JJ.
Coram: McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.
Reasons for Judgment:
(paras. 1 to 81)
Joint Concurring Reasons:
(paras. 82 to 105)
Concurring Reasons:
(paras. 106 to 117)
Bastarache J. (McLachlin C.J. and Binnie and Charron JJ. concurring)
Deschamps and Fish JJ.
Abella J.
Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 S.C.R. 591, 2007 SCC 14
City of Lévis Appellant
v.
Fraternité des policiers de Lévis Inc. and Danny Belleau Respondents
and
Association des policières et policiers provinciaux du Québec Intervener
Indexed as: Lévis (City) v. Fraternité des policiers de Lévis Inc.
Neutral citation: 2007 SCC 14.
File No.: 31103.
2006: November 7; 2007: March 22.
Present: McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.
on appeal from the court of appeal for quebec
Legislation — Interpretation — Conflicting legislation — Whether s. 116(6) of Cities and Towns Act and s. 119, para. 2 of Police Act are incompatible where separate sanctions they provide for upon conviction for criminal offence apply to municipal police officer — If so, which provision has precedence over the other — Police Act, R.S.Q., c. P‑13.1, s. 119, para. 2 — Cities and Towns Act, R.S.Q., c. C‑19, s. 116(6).
Municipal law — Persons disqualified from municipal employment — Municipal police officer convicted of criminal offences — Cities and Towns Act providing for automatic five‑year disqualification of municipal employee convicted of criminal offence — Whether that sanction applies to municipal police officer concurrently with disciplinary sanction of dismissal provided for in Police Act — Cities and Towns Act, R.S.Q., c. C‑19, s. 116(6) — Police Act, R.S.Q., c. P‑13.1, s. 119, para. 2.
Police — Persons excluded from profession — Disciplinary sanction — Municipal police officer dismissed after being convicted of criminal offences — Arbitrator substituting another sanction for dismissal pursuant to specific circumstances exception provided for in s. 119, para. 2 of Police Act — Whether arbitrator wrong to conclude that s. 116(6) of Cities and Towns Act, which provides for automatic five‑year disqualification of municipal employee convicted of criminal offence, was inapplicable — Whether arbitrator wrong to conclude that police officer had shown that there were specific circumstances that justified sanction other than dismissal — Police Act, R.S.Q., c. P‑13.1, s. 119, para. 2 — Cities and Towns Act, R.S.Q., c. C‑19, s. 116(6).
Administrative law — Judicial review — Standard of review — Standard applicable to decision of grievance arbitrator regarding conflict between s. 119, para. 2 of Police Act and s. 116(6) of Cities and Towns Act — Standard applicable to that arbitrator’s decision regarding interpretation of s. 119, para. 2 and its application to facts — Whether arbitrator’s decisions should be subject to different standards of review — Police Act, R.S.Q., c. P‑13.1, s. 119, para. 2 — Cities and Towns Act, R.S.Q., c. C‑19, s. 116(6).
A police officer employed by a municipality pleaded guilty to several criminal offences, and the separate sanctions provided for in s. 116(6) of the Cities and Towns Act (“C.T.A.”) and s. 119, para. 2 of the Police Act (“P.A.”) applied to all of them. Following an internal investigation, the municipality dismissed him. The union filed a grievance. The arbitrator held that the existence of a specific disciplinary sanction in the P.A., which requires that a police officer convicted of a criminal offence be dismissed subject to the possible application of an exception limited to hybrid offences, meant that the automatic five‑year disqualification provided for in the C.T.A., which allows for no exceptions, was inapplicable. He then found that the officer’s family troubles, psychological problems and alcohol abuse had led him to commit the offences and that they constituted “specific circumstances” that allowed for a sanction other than dismissal under the exception provided for in s. 119, para. 2 P.A. He ordered that the officer be reinstated. The Superior Court set aside the arbitration award, but the award was restored by the Court of Appeal.
Held: The appeal should be allowed and the sanction of dismissal restored.
Per McLachlin C.J. and Bastarache, Binnie and Charron JJ.: Two standards of review are needed. Multiple standards of review should be adopted only when there are clearly defined questions that engage different concerns under the pragmatic and functional approach. The question whether s. 119, para. 2 P.A. and s. 116(6) C.T.A. are in conflict and, if so, which one should prevail, clearly raises separate concerns from the question whether the arbitrator properly interpreted and applied s. 119, para. 2. While there is a relatively strong privative clause in the Labour Code, the question of compatibility is a pure question of law that does not engage the arbitrator’s special knowledge of labour and employment law. Moreover, this question is of general importance and has precedential value. As for the purpose of legislation, while the Labour Code clearly contemplates calling on arbitrators to interpret and apply legislation in order to settle grievances in a prompt, final and binding manner, it does not follow that the question of the compatibility of conflicting legislative provisions was intended to be within the exclusive purview of the grievance arbitrator, or that such a task is at the core of the object of grievance arbitration. On balance, the question of compatibility must be subject to the strictest standard of review, the standard of correctness. [19‑23]
The question whether the arbitrator correctly interpreted and applied s. 119, para. 2 P.A. to the police officer’s conduct is one of mixed fact and law. It requires an analysis more in line with the traditional function of a grievance arbitrator under s. 100.12(f) of the Labour Code. It also requires a balancing of the competing interests of the police officer facing dismissal, of the municipality, both as an employer and as a public body responsible for public security, and of the community as a whole in maintaining respect and confidence in its police officers. But not all factors point to the highest standard of deference. The question has some degree of precedential value, the arbitrator’s discretion is narrower under s. 119, para. 2 P.A. than it would otherwise be under s. 100.12(a) and (f) of the Labour Code, and the P.A. is external to the collective agreement and to the Code. On balance, the reasonableness standard of review is suitable for this question. [24‑28]
Municipal police officers are subject both to the P.A. and to the C.T.A. as municipal employees. While ss. 119 P.A. and 116(6) C.T.A. apply unproblematically both outside of the municipal police context and when a municipal police officer is convicted of an indictable offence, there is a clear zone where the statutes overlap and come into conflict. Both provisions apply to the officer’s conduct in the instant case. One statute provides for an exception to the rule of dismissal and would allow him to maintain his employment if he can show specific circumstances, but the other does not. The conflict is unavoidable, because one statute implicitly takes away what another statute has explicitly allowed. In case of conflict, s. 119, para. 2 P.A. should prevail over s. 116(6) C.T.A. Section 119 satisfies the requirements of the presumptions developed to aid in determining the legislature’s intent in that it is both more recent and more specific in comparison to s. 116(6). Furthermore, the specific circumstances exception was intended to meet the concern expressed at the time it was adopted as to the severity of the rule of dismissal. If s. 116(6) were held to prevail over s. 119, para. 2, this would defeat a clearly stated legislative objective. Lastly, the fact that the legislature has not amended s. 116(6) since adopting the new P.A. could indicate an intention to preserve the legislative bargain that was struck when s. 119 was drafted without affecting the applicability of s. 116(6) to other municipal employees. [40] [48‑49] [56‑57] [61‑63]
It was unreasonable for the arbitrator to conclude that the specific circumstances raised by the police officer were sufficient to satisfy the s. 119, para. 2 exception. The burden of proof was on the police officer. In deciding whether specific circumstances are proven or not, an arbitrator may take into account any circumstance surrounding the offence that could affect the police officer’s ability to continue to serve the public effectively and credibly. The arbitrator equated his jurisdiction under s. 119, para. 2 P.A. to the jurisdiction he would normally enjoy under s. 100.12(f) of the Labour Code and failed to properly weigh the effect of the police officer’s criminal conduct on his ability to carry out his duties; this affected the rationality of his decision. Referring to attenuating and aggravating circumstances in other employment law contexts may sometimes be useful, but this should have been done in this case having regard to the unique issues that are raised by the criminal conduct of police officers. The context here is one of domestic violence, and the officer pleaded guilty to a charge of assault on his wife; this is a very important consideration in light of the public’s reliance on police intervention in such cases, and one that the arbitrator could not reasonably ignore. Furthermore, the firearm offences cannot be attributed to the officer’s personal problems, nor can they be justified, as the arbitrator sought to do, merely on the ground that they are technical offences. More serious still is the officer’s conscious defiance of his undertaking to the court not to communicate with his spouse. The breach of an undertaking by a police officer is especially serious given the role that police officers play in the administration of justice. It suggests a lack of respect for the judicial system of which he forms an integral part. Finally, public confidence was a factor to be considered. Media reports of criminal conduct by police officers have an effect on public confidence. But in treating the issue as one about properly informing the public of personal circumstances surrounding the offences committed, the arbitrator failed to take into account the gravity of these offences and the effect that they would have on public confidence. [68‑80]
Per Deschamps and Fish JJ.: The sanction of dismissal should be restored. Section 119, para. 2 P.A. and s. 116(6) C.T.A. are not incompatible. The courts have interpreted the meaning of the word “conflict” as narrowly as possible. The fact that one provision is more restrictive or imposes different conditions than the other, or that both provisions apply to the same person and the same fact situation, is in itself insufficient to support the conclusion that one of the provisions is inapplicable. [82‑83] [87]
In the instant case, it can be seen by reading the P.A. and the C.T.A. together that the incompatibility is merely apparent: the former governs the capacity to serve as a police officer and the sanctions attached to breaches of the conditions of eligibility for a position as a police officer, while the latter governs the conditions of eligibility for municipal employment. A person who is qualified to serve in both capacities must meet the conditions of both statutes. If a municipal police officer commits an indictable offence, he will, by virtue of s. 119, para. 1 P.A. and of the C.T.A., be both excluded from serving as a police officer and, where there is a connection with the employment, disqualified from municipal employment for five years. The same will be true if an officer commits a hybrid offence punishable by imprisonment for one year or more and is unable to prove the existence of specific circumstances under the P.A. Where specific circumstances are proven, the officer will not be dismissed, but will nonetheless be disqualified for five years under municipal law. There is no conflict in the fact that, in this last situation, a concurrent application of the provisions will deprive the officer of his or her employment as a municipal employee for a period of five years even though he or she has not ceased to be eligible to serve as a police officer. [91‑93] [98]
Nor does the proposed interpretation frustrate the purposes of the provisions in question. Although s. 119 P.A. is disciplinary in nature, an arbitrator is not entitled to review an employer’s decision to terminate the employment of a police officer who has been convicted of an indictable offence, since, under both s. 115 P.A. and s. 119, the officer is no longer eligible to serve as a police officer. Where an officer has been convicted of a hybrid offence and has benefited from the exception under s. 119, on the other hand, he or she will be able to apply for employment in a police force other than a municipal force, because he or she has not ceased to be eligible under the P.A. Where an officer has benefited from the exception under s. 119, this must be reflected in an interpretation of s. 115 that is consistent with the clear objective of the exception, namely to allow the individual in question to continue his or her career as a police officer. [92‑95]
Per Abella J.: The arbitrator’s decision whether to apply s. 119, para. 2 P.A. should not be subjected to a different standard of review than his decision on how to apply it. The privative clause in s. 101 of the Labour Code, which states that the arbitrator’s award is without appeal, protects the arbitrator’s exclusive responsibility for deciding a grievance, and s. 100.12(a) of the Code clothes him with the authority to determine how any relevant statutory provision ought to apply to it. These provisions, combined with the expertise of the arbitrator in labour disputes and the legislative objective of having them resolved expeditiously and conclusively, favour an integrated standard for assessing the arbitrator’s interpretation both of his jurisdictional mandate and of its application. For the reasons given by the majority, even on a single deferential standard of review, the arbitrator’s decision as to the appropriate sanction is unsustainable and the sanction of dismissal should be restored. [107‑109] [117]
Cases Cited
By Bastarache J.
Applied: Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982; Alberta Union of Provincial Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727, 2004 SCC 28; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), [2004] 3 S.C.R. 152, 2004 SCC 54; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Toronto Railway Co. v. Paget (1909), 1909 CanLII 10 (SCC), 42 S.C.R. 488; Massicotte v. Boutin, 1969 CanLII 97 (CSC), [1969] S.C.R. 818; Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161; referred to: Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), 1995 CanLII 148 (SCC), [1995] 1 S.C.R. 157; Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), 1996 CanLII 190 (SCC), [1996] 2 S.C.R. 3; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), [2006] 1 S.C.R. 140, 2006 SCC 4; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42; Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 S.C.R. 609, 2004 SCC 23; Pelland v. St‑Antoine (Ville de), J.E. 94-499, 1994 CarswellQue 1900; Fraternité des policiers de la Communauté urbaine de Montréal Inc. v. Communauté urbaine de Montréal, 1985 CanLII 44 (SCC), [1985] 2 S.C.R. 74; Péloquin v. Syndicat des agents de la paix en services correctionnels du Québec, 2000 CanLII 11351 (QC CA), [2000] R.J.Q. 2215; Lévis (Ville de) v. Syndicat des policiers et pompiers de Lévis, D.T.E. 89T‑344; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., [2003] 3 S.C.R. 228, 2003 SCC 68; Syndicat des employés municipaux de Beauce (C.S.D.) v. St‑Georges (Ville de), J.E. 2000‑540, SOQUIJ AZ‑00019015; Association des pompiers de Laval v. Ville de Laval, [1985] T.A. 446; Fraternité des policiers de Deux‑Montagnes/Ste‑Marthe‑sur‑le‑Lac v. Deux‑Montagnes (Ville de), J.E. 2001‑524, SOQUIJ AZ‑50083424; L’Île‑Perrot (Ville de) et Union des employés de service, section locale 800, D.T.E. 2000T‑619; Duguay et Paspébiac (Ville de), D.T.E. 2003T‑47, SOQUIJ AZ‑50152875.
By Deschamps and Fish JJ.
Referred to: Duval v. The King (1938), 64 B.R. 270; Daniels v. White, 1968 CanLII 67 (SCC), [1968] S.C.R. 517; Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3; Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161; Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, 2005 SCC 13; Provincial Secretary of Prince Edward Island v. Egan, 1941 CanLII 1 (SCC), [1941] S.C.R. 396; Ross v. Registrar of Motor Vehicles, 1973 CanLII 176 (SCC), [1975] 1 S.C.R. 5; Bell v. Attorney General for Prince Edward Island, 1973 CanLII 177 (SCC), [1975] 1 S.C.R. 25; Ricard v. Lord, 1939 CanLII 42 (SCC), [1941] S.C.R. 1; Beaudoin v. Roy, 1983 CanLII 2642 (QC CS), [1984] R.L. 315; Roy v. Mailloux, [1966] B.R. 468.
By Abella J.
Referred to: Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982; Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487; Canada Post Corp. v. Smith (1998), 1998 CanLII 1947 (ON CA), 40 O.R. (3d) 97; Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 W.L.R. 163; Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, 1970 CanLII 7 (SCC), [1970] S.C.R. 425; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Mattel, Inc. v. 3894207 Canada Inc., [2006] 1 S.C.R. 772, 2006 SCC 22; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), 1995 CanLII 148 (SCC), [1995] 1 S.C.R. 157.
Statutes and Regulations Cited
Act respecting Cities and Towns, S.Q. 1922, 13 Geo. V, c. 65, s. 123(12).
Act respecting police organization, R.S.Q., c. O‑8.1 [repl. 2000, c. P‑13.1].
Act to amend various legislation having regard to the Charter of human rights and freedoms, S.Q. 1986, c. 95, s. 46.
Air Travellers Security Charge Act, S.C. 2002, c. 9, s. 62(2).
Charter of human rights and freedoms, R.S.Q., c. C‑12, s. 18.2.
Cities and Towns Act, R.S.Q., c. C‑19, ss. 71, 72, 116(6), (7).
Code of ethics of Québec police officers, (1990) 122 G.O. II, 1760, ss. 1, 5.
Criminal Code, R.S.C. 1985, c. C‑46.
Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 160.1.
Importation of Intoxicating Liquors Act, R.S.C. 1985, c. I‑3, s. 5(c).
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 238(1).
Labour Code, R.S.Q., c. C‑27, ss. 100.12(a), (f), 101, 139, 139.1, 140.
Municipal Code of Québec, R.S.Q., c. C‑27.1, s. 269.
Police Act, R.S.Q., c. P‑13 [repl. 2000, c. P‑13.1], s. 3(3).
Police Act, R.S.Q., c. P‑13.1, ss. 70, para. 5, 87 to 89, 115, 117, 119, 127, 128 to 193, 194 to 255.11, 234(6), 256, 258, 260, 264, 286, 289, 316, 317.
Règlement numéro 756 relatif à l’éthique professionnelle et à la discipline interne des policiers‑pompiers de la Ville de Lévis, August 18, 1997, ss. 13.10, 13.11, 22.
Authors Cited
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 3rd ed. Scarborough, Ont.: Carswell, 2000.
Halsbury’s Laws of England, vol. 36, 3rd ed. London: Butterworth, 1961.
Québec. Assemblée nationale. Journal des débats de la Commission permanente des institutions, 1re sess., 36e lég., 26 mai 2000, no 79.
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
APPEAL from a judgment of the Quebec Court of Appeal (Pelletier, Morin and Bich JJ.A.), [2005] Q.J. No. 8450 (QL), J.E. 2005‑1271, 2005 QCCA 639, reversing a decision of Lemelin J., [2003] Q.J. No. 13008 (QL). Appeal allowed.
Richard Ramsay, Sarto Veilleux and François LeBel, for the appellant.
Serge Gagné and Maude Gagné, for the respondents.
Gino Castiglio and André Fiset, for the intervener.
The judgment of McLachlin C.J. and Bastarache, Binnie and Charron JJ. was delivered by
1BASTARACHE J. — This appeal concerns the consequences of criminal conduct by municipal police officers in Quebec and whether that conduct should be sanctioned by the law governing police or by municipal law. Specifically, we are asked to determine whether s. 119, para. 2 of the Police Act, R.S.Q., c. P-13.1 (“P.A.”), and s. 116(6) of the Cities and Towns Act, R.S.Q., c. C-19 (“C.T.A.”), can apply concurrently to a municipal police officer, and if not, which provision should take precedence. We are also asked to determine whether the arbitrator committed a reviewable error in his interpretation and application of the limited exception found in s. 119, para. 2 P.A. The latter provision provides for the mandatory dismissal of police officers who are convicted of serious criminal offences unless they can show specific circumstances justifying another sanction. In comparison, s. 116(6) C.T.A. disqualifies any person from municipal employment for similar types of offences but subject to no exception.
[2] The appellant municipality dismissed the respondent Danny Belleau (“Belleau”) after he pleaded guilty to several criminal offences, all of which fell within the scope of both s. 116(6) C.T.A. and s. 119, para. 2 P.A. The grievance arbitrator held that s. 119, para. 2 P.A. had rendered s. 116(6) C.T.A. inapplicable to municipal police officers. He also found that there were specific circumstances which justified another sanction under s. 119, para. 2 P.A., and, as result, overturned the dismissal and ordered that Belleau’s employment be restored. There is no question that had s. 116(6) C.T.A. applied alone, Belleau’s challenge to his dismissal would have failed.
3The arbitrator’s decision was quashed by the Superior Court ([2003] Q.J. No. 13008 (QL)), but upheld by the Court of Appeal ([2005] Q.J. No. 8450 (QL), 2005 QCCA 639). Before this Court, the appellant argues that despite the enactment of s. 119, para. 2 P.A., s. 116(6) C.T.A. is still applicable to Belleau and that on a proper application of either provision, its decision to dismiss Belleau should stand.
- Background
4Before he was dismissed, Belleau had been a member of the appellant’s municipal police force for 15 years. The criminal conduct which led to the dismissal occurred on December 29 and 30, 2000. It would appear that on the evening of the 29th, Belleau, who was on leave at the time, had a heated argument with his spouse, Johanne Robitaille. He had been drinking heavily and he later admitted that he was intoxicated. The dispute worsened and Belleau became violent. When the police arrived, they found Robitaille wandering outside without a jacket, clutching her dog. They arrested Belleau and searched the house. In the basement they found three unsecured firearms. The next morning, Belleau was released on condition that he not communicate in any way with Robitaille. Less than two hours after his release, he breached that condition by appearing at the house of Robitaille’s parents, where Robitaille was present. Belleau was arrested once more. On February 2, 2001, he pleaded guilty to threatening to cause death or bodily harm, assault, three counts of storing a firearm in a careless manner or without reasonable safety precautions, and failing to comply with a condition of his undertaking. Significantly for the purposes of this appeal, all of the offences were hybrid offences, punishable on indictment or on summary conviction and to imprisonment for a term of more than one year.
[5] Belleau’s employment was terminated following a disciplinary investigation by the appellant’s director of public security, Gilles Drolet (“the director”). In his report, the director concluded that Belleau had failed to demonstrate specific circumstances sufficient to justify another sanction under s. 119, para. 2 P.A. Although he made reference to s. 116(6) C.T.A. in his report, there was no mention of it in his analysis or in the form summarizing his final recommendation. The council of the appellant municipality accepted the recommendation and passed a resolution dismissing Belleau on June 18, 2001. The respondents contested this decision by way of a grievance filed on June 28, 2001.
6It will be helpful to set out the relevant legislation before considering how the respondents’ grievance was treated in the jurisdictions below.
- Relevant Statutory Provisions
[7] Police Act, R.S.Q., c. P-13.1
- To be hired as a police officer a person must meet the following requirements:
(1) be a Canadian citizen;
(2) be of good moral character;
(3) not have been found guilty, in any place, of an act or omission defined in the Criminal Code (Revised Statutes of Canada, 1985, chapter C‑46) as an offence, or of an offence referred to in section 183 of that Code under one of the Acts listed therein;
(4) hold a diploma awarded by the École nationale de police du Québec or meet the standards of equivalence established by by‑law by the school.
The hiring requirements do not apply to the members of police forces when police services are integrated, amalgamated or otherwise merged.
- Any police officer or special constable who is found guilty, in any place, of an act or omission referred to in subparagraph 3 of the first paragraph of section 115 that is triable only on indictment, shall, once the judgment has become res judicata, be automatically dismissed.
A disciplinary sanction of dismissal must, once the judgment concerned has become res judicata, be imposed on any police officer or special constable who is found guilty, in any place, of such an act or omission punishable on summary conviction or by indictment, unless the police officer or special constable shows that specific circumstances justify another sanction.
Cities and Towns Act, R.S.Q., c. C-19
- The following persons shall not be appointed to or hold any office as an officer or employee of the municipality:
(6) Any person convicted of treason or of an act punishable under a law of the Parliament of Canada or of the Legislature of Québec, by imprisonment for one year or more.
Such disqualification shall continue for five years after the term of imprisonment fixed by the sentence, and, if only a fine was imposed or the sentence is suspended, for five years from the date of such condemnation, unless the person has obtained a pardon;
Disqualification from municipal office or employment under subparagraph 6 or 7 of the first paragraph shall be incurred only if the offence is in connection with such an office or employment.
Labour Code, R.S.Q., c. C-27
100.12. In the exercise of his duties the arbitrator may
(a) interpret and apply any Act or regulation to the extent necessary to settle a grievance;
(f) in disciplinary matters, confirm, amend or set aside the decision of the employer and, if such is the case, substitute therefor the decision he deems fair and reasonable, taking into account the circumstances concerning the matter. However, where the collective agreement provides for a specific sanction for the fault alleged against the employee in the case submitted to arbitration, the arbitrator shall only confirm or set aside the decision of the employer, or, if such is the case, amend it to bring it into conformity with the sanction provided for in the collective agreement;
The arbitration award is without appeal, binds the parties and, where such is the case, any employee concerned. Section 129 applies, with the necessary modifications, to the arbitration award; however, the authorization of the Commission provided for in that section is not required.
Judicial and Arbitral History
3.1 Arbitration Award (October 2, 2002)
[8] The arbitrator set aside the municipality’s decision and ordered that Belleau be reinstated without compensation, which in effect amounted to a 16-month suspension without pay. He held that s. 119, para. 2 P.A. had rendered inapplicable s. 116(6) C.T.A. to municipal police officers charged with an offence punishable on indictment or summary conviction on the basis that the special law prevails over the general. He found that s. 119, para. 2 P.A. was equivalent to an arbitrator’s jurisdiction in relation to disciplinary matters under s. 100.12(f) of the Quebec Labour Code, R.S.Q., c. C-27 (“L.C.”). The arbitrator reasoned that under s. 119, para. 2 P.A., he was entitled to consider the circumstances surrounding the criminal act(s) as well as the personal circumstances of the police officer.
9With regard to the offences relating to the careless storage of firearms, the arbitrator was of the view that they were of a “technical” character. He considered the fact that Belleau had recently moved into the house and that it was undergoing extensive renovations. He concluded that there was no place in the house where the firearms could have been safely stored.
10As for Belleau’s violence toward his spouse and the breach of his undertaking not to communicate with her, the arbitrator was of the view that while the offences were serious, Belleau had demonstrated specific circumstances which justified a sanction other than dismissal. The arbitrator accepted the expert medical opinion put forward by Belleau that he was in a morbid mental state on December 29 and 30 due to family problems. The arbitrator also took into account Belleau’s intoxication on the 29th as evidence that, along with his mental state, [translation] “he was not entirely lucid”. In addition, the arbitrator considered a number of attenuating factors: the length of Belleau’s employment with the municipality; the lack of any previous disciplinary problems; testimony by his ex-spouses that he was not by nature a violent man; the fact that Belleau was off duty when the offences occurred; the fact that his victim had not suffered physical harm; and the fact that there was no evidence of physical violence.
11Finally, the arbitrator dismissed objections to Belleau’s reinstatement. He considered that Belleau had recovered from his family and alcohol problems and that there was little risk of him reoffending. As for public perception, the arbitrator concluded that the public had been misinformed by the media about the specific circumstances of Belleau’s case. The arbitrator was of the opinion that Belleau’s supervisors and colleagues would regain confidence in him once they were reasonably informed of those circumstances.
3.2 Superior Court of Quebec, [2003] Q.J. No. 13008 (QL)
12Lemelin J. was of the view that the dispute related essentially to the interpretation of the collective agreement with regard to disciplinary matters, and as such fell within the exclusive competence and expertise of the grievance arbitrator. He held that the arbitrator’s decision should therefore not be interfered with unless it was patently unreasonable.
[13] Nevertheless, Lemelin J. was of the opinion that the arbitrator’s decision was patently unreasonable on two grounds. First, he concluded that the arbitrator had committed a reviewable error in holding that s. 116(6) C.T.A. was inapplicable to Belleau. According to Lemelin J., there was no indication that the legislature had intended to exclude the application of s. 116(6) C.T.A. to municipal police officers. In the absence of any specific legislative intent to the contrary, s. 116(6) applied to Belleau as a municipal employee and required his dismissal.
14Lemelin J. further held that the arbitrator’s decision as to the application of s. 119, para. 2 P.A. was also patently unreasonable. The expert opinion led by Belleau was not convincing on the issue of Belleau’s alcoholism, and in Lemelin J.’s opinion should not have been accepted. Because the arbitrator’s conclusion on this point was central, it rendered his whole decision patently unreasonable.
3.3 Court of Appeal of Quebec, [2005] Q.J. No. 8450 (QL), 2005 QCCA 639
15The Court of Appeal held that since the arbitrator’s decision raised separate questions, two different standards of review should govern the judicial review. Bich J.A., speaking for the court, agreed with Lemelin J. that the arbitrator’s decision on s. 119, para. 2 P.A. should be evaluated on the patent unreasonableness standard. However, she saw the question of the compatibility of s. 119, para. 2 P.A. and s. 116(6) C.T.A. as separate and distinct for the purpose of the pragmatic and functional approach and concluded that the reasonableness simpliciter standard of review should be adopted.
16On the compatibility question, Bich J.A. was of the view that the arbitrator had not committed an error. While s. 116(6) C.T.A. and s. 119, para. 2 P.A. could coexist, there were situations where the two provisions were necessarily in conflict. Applying the presumptions that, in case of conflict, the legislator intended the new law to prevail over the old law and the special law to prevail over the general one, Bich J.A. concluded that s. 119, para. 2 P.A. should prevail.
17On the application of s. 119, para. 2 P.A. to Belleau’s conduct, Bich J.A. held that the arbitrator had not committed a patently unreasonable or even an unreasonable error. The arbitrator was entitled to consider the technical nature of the firearm offences and the family crisis that Belleau was living through when assessing whether there were specific circumstances. Furthermore, Bich J.A. disagreed with Lemelin J. that the arbitrator’s conclusion regarding Belleau’s alcoholism was patently unreasonable. Even if it was, it had not played a central role in the arbitrator’s decision. For these reasons, the Court of Appeal restored the arbitrator’s award.
- Issues
[18] There are three main issues to be decided in this appeal. First, what are the appropriate standards to apply in reviewing the arbitrator’s decision? The second issue is whether the arbitrator erred in holding that s. 116(6) C.T.A. was inapplicable to Belleau. The third is whether the arbitrator erred in finding that Belleau had demonstrated specific circumstances which justified a sanction other than dismissal under s. 119, para. 2 P.A.
- Analysis
5.1 Standards of Review
5.1.1 Multiple Standards of Review
19It is clear that the pragmatic and functional approach may lead to different standards of review for separate findings made by an arbitrator in the course of his or her decision: Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63, at para. 14; Alberta Union of Provincial Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727, 2004 SCC 28, at para. 15. This will most frequently be the case when an arbitrator is called upon to construe legislation. The arbitrator’s interpretation of the legislation — a question of law — may be reviewable on a different standard than the rest of the decision: see e.g. Canadian Broadcasting Corp. v. Canada (Labour Relations Board), 1995 CanLII 148 (SCC), [1995] 1 S.C.R. 157 (“CBC”), at para. 49; Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), 1996 CanLII 190 (SCC), [1996] 2 S.C.R. 3, at para. 14. While interpretations of general public statutes or statutes external to an administrative decision maker’s constituting legislation will often be reviewed on a standard of correctness, this will not always be so: CBC, at para. 48. The answer in each case will depend on the proper application of the pragmatic and functional approach, which requires various factors be taken into account such as the presence or absence of a privative clause, the expertise of the decision maker, the purpose of the governing legislation and the nature of the question under review (Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982, at paras. 29-38). Since the presence or absence of a privative clause will likely be the same for all aspects of an administrative decision, whether there is a possibility of more than a single standard of review under the pragmatic and functional approach will largely depend on whether there exist questions of different natures and whether those questions engage the decision maker’s expertise and the legislative objective in different ways. Of course it may not always be easy or necessary to separate individual questions from the decision taken as a whole. The possibility of multiple standards should not be taken as a licence to parse an administrative decision into myriad parts in order to subject it to heightened scrutiny. However, reviewing courts must be careful not to subsume distinct questions into one broad standard of review. Multiple standards of review should be adopted when there are clearly defined questions that engage different concerns under the pragmatic and functional approach.
[20] The question whether s. 119, para. 2 P.A. and s. 116(6) C.T.A. are in conflict and, if so, which one should prevail, clearly raises separate concerns from the question of whether the arbitrator properly interpreted and applied s. 119, para. 2 P.A. The one factor that is common to both questions is the presence of a privative clause. By virtue of s. 101 L.C., the arbitrator’s decision is not subject to appeal. Combined with ss. 139, 139.1 and 140 L.C., s. 101 forms a relatively strong privative clause. However, a privative clause is not determinative and regard must be had to the other factors under the pragmatic and functional approach: ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), [2006] 1 S.C.R. 140, 2006 SCC 4, at para. 25. In this case, the privative clause suggests greater deference in general but does not shed light on whether the level of scrutiny should be different for each question.
5.1.2 Compatibility of Section 119, para. 2 P.A. and Section 116(6) C.T.A.
21On the issue of compatibility, the nature of the question and the relative expertise of the arbitrator suggest that a searching review is necessary. Unlike the other findings of the arbitrator, the question of whether s. 119, para. 2 P.A. and s. 116(6) C.T.A. are in conflict is a pure question of law. It therefore does not engage the relative expertise of the arbitrator in relation to the courts and is entitled to less deference (Pushpanathan, at para. 37; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), [2004] 3 S.C.R. 152, 2004 SCC 54, at para. 8). The lower courts focussed on the fact that s. 119, para. 2 P.A. and s. 116(6) C.T.A. both related to the disciplining of police officers, a matter clearly within the scope of the arbitrator’s domain in this case by virtue of the collective agreement and the Labour Code. It is true that the interpretation of external legislation that is linked to the administrative decision maker’s mandate may be given a certain degree of deference: CBC, at para. 48. However, the compatibility of these two statutes is not a question about what disciplinary sanctions should apply. It does not engage the arbitrator’s special knowledge of labour and employment law. Furthermore, the determination of whether s. 119, para. 2 P.A. prevails over s. 116(6) C.T.A. is of general importance and has precedential value, a consideration which points to a lesser degree of deference (Lethbridge, at para. 19; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 34).
[22] As for the purpose of the legislation, the object of grievance arbitration is to “secure prompt, final and binding settlement of disputes arising out of the interpretation or application of collective agreements and the disciplinary actions taken by an employer” (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42, at para. 17). Section 100.12 L.C. attributes broad discretion to arbitrators in disciplinary matters in order to fulfill this purpose. In particular, s. 100.12(a) L.C. empowers arbitrators to consider any act or regulation to the extent necessary to settle the grievance. While the Labour Code clearly contemplates that arbitrators will be called on to interpret and apply legislation in order to settle grievances in a prompt, final and binding manner, it does not follow that the question of the compatibility of conflicting legislative provisions was intended to be within the exclusive purview of the grievance arbitrator or that such a task is at the core of the object of grievance arbitration. This suggests that the question of whether both provisions apply concurrently should be evaluated on a less deferential standard.
23On balance, the factors to be considered in the pragmatic and functional approach suggest that the question of compatibility must be subject to the strictest standard of review, the standard of correctness.
5.1.3 Interpretation and Application of Section 119, para. 2 P.A.
24The question of whether the arbitrator correctly interpreted and applied s. 119, para. 2 P.A. to Belleau’s conduct raises different concerns than the question of compatibility. It is not a pure question of law but rather a question of mixed fact and law. The arbitrator had to decide whether the specific circumstances raised by Belleau fell within the proper scope of s. 119, para. 2 P.A. and whether those circumstances had been established on the evidence. He also had to decide what sanction was appropriate once the presence of specific circumstances had been made out. This analysis is more in line with the traditional function of a grievance arbitrator under s. 100.12(f) L.C. Furthermore, it is a decision that requires the balancing of competing interests of the police officer facing dismissal, the municipality, both as an employer and as a public body responsible for the security of the public, and of the community as a whole in maintaining respect and confidence in its police officers. Thus, the arbitrator’s decision has some elements of polycentric decision making which would suggest a higher degree of deference: Pushpanathan, at para. 36.
25However, not all of the factors to be considered under the pragmatic and functional approach point to the highest degree of deference. First, there is still a significant legal component to the question. The arbitrator was required to decide what counts as specific circumstances sufficient to justify another sanction for the purpose of s. 119, para. 2 P.A. This is an important question that has a certain degree of precedential value: Lethbridge, at para. 19.
26Second, the discretion exercised by the arbitrator under s. 119, para. 2 P.A. is not the same as that exercised under s. 100.12 L.C. Section 119 P.A. is mandatory and, where it applies, results in the dismissal of a police officer except in the limited exception provided in its second paragraph. The arbitrator’s discretion in disciplinary matters is thus narrowed significantly under s. 119, para. 2 P.A. with respect to what it would otherwise be under s. 100.12(a) and (f) L.C. While the decision-making process of an arbitrator called upon to interpret and apply s. 119, para. 2 P.A. certainly falls within the broader purpose of grievance arbitration, it is a much more limited exercise. This would suggest that the legislative intent to confide disciplinary matters to arbitrators is not as strong in the case of criminal conduct which engages s. 119 P.A.
27Third, the Police Act is an external statute. It is not part of the collective agreement or the Labour Code. Furthermore, the Court of Québec also has limited jurisdiction to apply s. 119, para. 2 P.A. in the context of directors, managers or other police officers who do not count as employees for the purposes of the Labour Code (ss. 87 to 89 P.A.). The arbitrator’s relative expertise in relation to s. 119 does not suggest the highest level of deference.
28Taking these factors into account suggests something less than the most deferential standard of review. Review on a patent unreasonableness standard will, by its nature, be relatively rare: Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 S.C.R. 609, 2004 SCC 23, at para. 18. The countervailing factors in this case point to the reasonableness standard of review for the interpretation and application of s. 119, para. 2 P.A.
5.2 Compatibility of Section 119, para. 2 P.A. and Section 116(6) C.T.A.
29Before examining whether the arbitrator’s decision regarding the conflict between s. 119, para. 2 P.A. and s. 116(6) C.T.A. was correct, it will be helpful to briefly consider the legislative framework which governs municipal police officers.
5.2.1 Legislative Context
30Municipal police officers, like all police officers, are governed by the Police Act. In 2000, the Police Act replaced the old Police Act, R.S.Q., c. P-13 and An Act respecting Police Organization, R.S.Q., c. O-8.1 (“Police Organization Act”). The new legislation is a comprehensive statute providing for the training of police officers (ss. 1 to 47), the composition, organization and regulation of provincial police forces (ss. 48 to 111), the basic requirements for entry into the profession (ss. 115 and 116), and limitations on the activities and interests of police officers (ss. 117 to 125). It is in the context of the latter provisions that s. 119 provides for the dismissal of police officers who are found guilty of indictable or hybrid criminal offences (i.e., offences which may be prosecuted either by indictment or summary conviction). The new Police Act also incorporates the provisions from the Police Organization Act relating to professional ethics. The Code of ethics of Québec police officers, (1990) 122 G.O. II, 1760 (“Code of ethics”) is continued (s. 127), as well as the Police Ethics Commissioner (ss. 128 to 193), and the Comité de déontologie policière, charged with sanctioning breaches of the Code of ethics (ss. 194 to 255.11).
31Municipal police forces are regulated extensively by the Act (ss. 69 to 89). In particular, every municipality has the responsibility to make a by-law regarding the internal discipline of the members of its police force (s. 256). The by-law must establish the duties and standards of conduct expected of its police officers, a disciplinary procedure and the sanctions that may be imposed for breach of the by-law (s. 258).
32The conduct of municipal police officers is thus regulated by three separate sources flowing from the Police Act. One is the internal discipline by-law of the municipality, which, in the case of the appellant municipality, is entitled Règlement numéro 756 relatif à l’éthique professionnelle et à la discipline interne des policiers-pompiers de la Ville de Lévis (“Règlement no 756”). Section 13.10 prohibits the municipality’s police officers from violating any law or regulation that the Public security service of Lévis was charged with enforcing (s. 13.10) or with contravening [translation] “any law or regulation enacted or made by a legally constituted authority in a manner likely to compromise the effectiveness, credibility or quality of the Service” (s. 13.11). Breach of one of the requirements of Règlement no 756 can lead to a number of disciplinary sanctions, including dismissal (s. 22).
[33] Another source is the Code of ethics. The Code establishes “the duties and standards of conduct of police officers in their relations with the public in the performance of their duties” (s. 1). This includes the general duty to “act in such a manner as to preserve the confidence and consideration that his duties require” (s. 5). Breach of the Code may lead to dismissal (s. 234(6) P.A.).
34Finally, the conduct of police officers is in some measure regulated by the Police Act itself. Section 117 prohibits police officers from undertaking certain activities or having financial interests related to those activities. Section 119, as we have seen, is concerned with criminal conduct of police officers.
35It is important to note that s. 119 was a new addition to the legislative framework governing police. It reflects a heightened concern by the legislature to impose strict consequences for criminal conduct by police officers. This concern can be seen throughout the provisions of the Act that, like s. 119, were not present in the previous legislation. Section 3(3) of the former Police Act prevented only those who had been convicted of a criminal offence by way of indictment from becoming police officers. By contrast, s. 115(3) P.A. requires that a potential candidate have no prior criminal convictions of any kind. Other new provisions ensure that allegations of criminal conduct by police officers are investigated and that such investigations are carried out objectively and thoroughly: ss. 70, para. 5, 260, 264, 286 and 289.
[36] The general sanction of dismissal provided in s. 119 P.A. is a significant change from the former legislation. Previously, police officers could be disciplined, and even dismissed — as they still can be — for breach of the Code of ethics or internal discipline regulations, including for committing a criminal offence, but the result was not certain: see Fraternité des policiers de la Communauté urbaine de Montréal Inc. v. Communauté urbaine de Montréal, 1985 CanLII 44 (SCC), [1985] 2 S.C.R. 74, at p. 83. This was due to the fact that the former Police Act was silent on the issue of criminal conduct by acting police officers. Section 3(3) of that Act prevented persons who had been convicted of a criminal offence by way of indictment from becoming police officers, but it did not extend to police officers during their employment: Péloquin v. Syndicat des agents de la paix en services correctionnels du Québec, 2000 CanLII 11351 (QC CA), [2000] R.J.Q. 2215 (C.A.). The new Act, through s. 119 P.A., ensures that dismissal will generally be the result of serious criminal conduct and thus brings the expectations of acting police officers in line, although not perfectly, with what is required of those seeking entry into the profession.
[37] The main practical effect of s. 119 P.A. is that it removes a large part of the discretion that previously existed with directors of police, the Police Ethics Commissioner and the Comité de déontologie policière as to whether a police officer who is convicted of a indictable or hybrid criminal offence should be disciplined and, if so, to what extent. A director who discovers that a member of his or her police force has committed an offence that falls within the ambit of s. 119, para. 2 P.A. has no choice but to dismiss the police officer. This sanction will apply in all cases unless the officer can show there are specific circumstances that justify another sanction.
[38] Of course discipline regulations and the Code of ethics continue to apply to police officers and may result in sanctions independently of s. 119 P.A. Criminal offences that fall outside the ambit of s. 119 P.A. may still be punishable by dismissal in appropriate circumstances: see e.g. Lévis (Ville de) v. Syndicat des policiers et pompiers de Lévis, D.T.E. 89T-344 (T.A.). However, where the offence is covered by s. 119, s. 258 P.A. makes clear that disciplinary sanctions imposed in accordance with the municipality’s discipline by-law do not remove the general requirement to impose dismissal.
39Similarly, a grievance arbitrator may no longer refer to his or her plenary discretion under s. 100.12(f) L.C. to review the reasonableness of the municipality’s decision and substitute what sanction he or she sees fits considering all the circumstances. Absent specific circumstances, which must be proven by the police officer, the only finding open to the arbitrator under s. 119, para. 2 P.A. is dismissal.
[40] Having set out the context of the legislation governing the conduct of police officers, we must now consider the effect of municipal law. Municipal police officers, unlike other police officers, are also subject to municipal law as municipal employees. In particular, s. 116 C.T.A., which applies to the appellant municipality, establishes conditions for being appointed or holding office as an officer or employee (“charge de fonctionnaire ou d’employé”). An almost identical provision applies to municipal police officers employed by municipalities that are governed by the Municipal Code of Québec, R.S.Q., c. C‑27.1, s. 269. Subparagraph 6 of the first paragraph of s. 116 C.T.A. functions to disqualify persons who have committed an offence punishable by imprisonment for one year or more from taking up or holding office. As such, it disqualifies those who are employed by the municipality when the offence is committed. The period of disqualification lasts for five years from the end of the term of imprisonment or from the date of condemnation if no sentence was imposed.
[41] There is, however, an important limitation to the disqualification set out in s. 116(6) C.T.A. The penultimate paragraph of s. 116 limits disqualification to situations where “the offence is in connection with” the office or employment. This qualification was added in 1986 in order to bring s. 116(6) and (7) C.T.A. in line with s. 18.2 of the Quebec Charter of human rights and freedoms, R.S.Q., c. C-12, which protects employees from being dismissed or otherwise penalized in their employment for the mere fact that they were convicted of a penal or criminal offence (An Act to amend various legislation having regard to the Charter of human rights and freedoms, S.Q. 1986, c. 95, s. 46). Under s. 18.2 of the Quebec Charter there must be an objective connection with the offence and the employment in order for the dismissal not to be discriminatory: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Maksteel Québec Inc., [2003] 3 S.C.R. 228, 2003 SCC 68, at para. 30.
[42] I make note of this because it appears that the connection requirement applies differently to municipal police officers than it does to other municipal employees. A criminal offence committed by a police officer is more likely to have a connection with his or her employment than an offence committed by another municipal employee. Thus, for example, a municipal employee was able to prove that a sexual assault during working hours was not connected with his employment, and therefore that he should not be dismissed by virtue of s. 116(6) C.T.A. (Syndicat des employés municipaux de Beauce (C.S.D.) v. St‑Georges (Ville de), J.E. 2000‑540, SOQUIJ AZ-00019015 (C.A.)). Similarly, a municipal firefighter who defrauded the municipality’s employees’ credit union was held not to have committed an offence in connection with his employment (Association des pompiers de Laval v. Ville de Laval, [1985] T.A. 446).
[43] The same results would not be possible for municipal police officers under s. 116(6) C.T.A. This is because most, if not all, criminal offences committed by a municipal police officer will be connected to his or her employment due to the importance of public confidence in the police officer’s abilities to discharge his or her duties. In Fraternité des policiers de Deux-Montagnes/Ste-Marthe-sur-le-Lac v. Deux-Montagnes (Ville de), J.E. 2001-524, SOQUIJ AZ-50083424, a case decided before s. 119 P.A. came into effect, the Court of Appeal of Quebec concluded that the arbitrator had committed a patently unreasonable error in not upholding the dismissal of a police officer convicted of concealing a stolen automobile under s. 116(6) C.T.A. The court noted that the arbitrator had in fact found that even though the offence had been committed outside of the officer’s employment, it was of such a nature as to compromise the integrity and respect for the law that the municipality and the public were entitled to expect from a police officer (para. 18). As such, the court held that the conditions of s. 116(6) C.T.A. were satisfied and the officer should have been dismissed.
44A similar principle emerges from the judicial application of s. 18.2 of the Quebec Charter to police officers who are dismissed for criminal conduct. In Pelland v. St-Antoine (Ville de), J.E. 94-499, 1994 CarswellQue 1900 (C.Q.), a director of police had been dismissed following a conviction for making false declarations in order to secure bank loans. The court held that the connection requirement in s. 18.2 had been satisfied: [translation] “In light of the nature of the position held by the applicant, his having been convicted of an indictable offence is incompatible with the very performance of the duties of that position, and this incompatibility is necessarily connected with his employment” (para. 38 (emphasis added)).
45A dismissal which is the result of a disciplinary sanction will usually not attract the protection of s. 18.2 because it cannot be said that the dismissal was effected for the mere reason of the criminal offence: Maksteel, at para. 31. This will often be the case with municipal police officers who, unlike other municipal employees, face disciplinary sanctions for violations of the law. For example, s. 13.11 of the appellant municipality’s discipline by-law prohibits police officers from violating any laws in a way that would compromise the effectiveness, credibility and quality of the public security service. In short, a municipal police officer would rarely, if ever, be able to benefit from the protection afforded by the penultimate paragraph of s. 116 to other municipal employees in the context of criminal offences.
[46] This brief review of the legislative framework governing the criminal conduct of municipal police officers suggests that s. 116(6) C.T.A. is similar in effect to s. 119, para. 2 P.A. What is not clear is whether the strict consequences of criminal conduct provided for in s. 116(6) C.T.A. were intended to continue to apply to municipal police officers whose conduct also falls under s. 119, para. 2 P.A. It is to this question that I now turn.
5.2.2 Are Section 116(6) C.T.A. and Section 119, para. 2 P.A. in Conflict?
47The starting point in any analysis of legislative conflict is that legislative coherence is presumed, and an interpretation which results in conflict should be eschewed unless it is unavoidable. The test for determining whether an unavoidable conflict exists is well stated by Professor Côté in his treatise on statutory interpretation:
According to case law, two statutes are not repugnant simply because they deal with the same subject: application of one must implicitly or explicitly preclude application of the other.
(P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 350)
Thus, a law which provides for the expulsion of a train passenger who fails to pay the fare is not in conflict with another law that only provides for a fine because the application of one law did not exclude the application of the other (Toronto Railway Co. v. Paget (1909), 1909 CanLII 10 (SCC), 42 S.C.R. 488). Unavoidable conflicts, on the other hand, occur when two pieces of legislation are directly contradictory or where their concurrent application would lead to unreasonable or absurd results. A law, for example, which allows for the extension of a time limit for filing an appeal only before it expires is in direct conflict with another law which allows for an extension to be granted after the time limit has expired (Massicotte v. Boutin, 1969 CanLII 97 (CSC), [1969] S.C.R. 818).
[48] The arbitrator and the Court of Appeal both found that s. 116(6) C.T.A. and s. 119, para. 2 P.A. were in conflict and that the conflict could not be avoided by any reasonable interpretation. I agree. Section 119, para. 2 P.A. requires the dismissal of police officers who have been convicted of a hybrid criminal offence, except if he or she can demonstrate specific circumstances which would justify another sanction. Section 116(6) C.T.A. provides for disqualification without exception from municipal employment for criminal and penal offences punishable with imprisonment for one year or more where the connection requirement is satisfied. There is a clear zone where the statutes overlap and come into conflict. Most, if not all, hybrid Criminal Code, R.S.C. 1985, c. C-46, offences targeted by s. 119, para. 2 P.A. also carry a term of imprisonment of at least 12 months. Because of the seriousness of criminal conduct by police officers, the connection requirement in the penultimate paragraph of s. 116 C.T.A. will most often be satisfied, especially in the case of hybrid offences, which are more serious than summary offences. Disqualification under s. 116 C.T.A. will, by necessity, lead to the municipal police officer’s dismissal, but without any opportunity, in contrast to s. 119, para. 2 P.A., to demonstrate specific circumstances.
[49] In any event, it is certainly the case that Belleau’s conduct in this appeal is caught by both provisions. All of his offences were punishable by imprisonment for a term of more than one year. There is also no question that they are sufficiently connected with his employment as a police officer. As a result, Belleau is faced with the situation where one statute would allow him to maintain his employment with the appellant municipality if he can show specific circumstances while the other would not. The application of s. 116(6) C.T.A. would necessarily preclude the application of the exception found in s. 119, para. 2 P.A. It is a situation where “one enactment says ‘yes’ and the other says ‘no’” (Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161, at p. 191).
[50] The appellant urges that the two provisions are complementary because s. 119 P.A. is concerned with a disciplinary sanction while s. 116 C.T.A. is a purely administrative measure providing for admissibility to municipal employment. It is true that s. 119 P.A. speaks of “dismissal” (“destitution”) while s. 116 C.T.A. speaks of “disqualification” (“inhabilité”). However, the difference in wording should not obscure the practical effect of these two provisions. Both provisions ultimately result in the termination of the employment relationship. The effect of disqualification under s. 116(6) C.T.A. is slightly broader in that it prevents a person from holding any municipal employment for a period of five years, but that does not diminish the fact that disqualification first and foremost results in the dismissal of the municipal employee. If an employee is disqualified from holding employment, then dismissal must follow. This seems to me to be a necessary corollary of disqualification for acting employees.
[51] This is also the interpretation given to s. 116(6) C.T.A. by the jurisprudence. In cases involving municipal employees convicted of a criminal offence, it is accepted that if s. 116(6) C.T.A. applied, it would be the basis for the employee’s dismissal: Beauce; Association des pompiers de Laval. Indeed, dismissal was the result in cases where the offence was held to have a sufficient connection with the employment: L’Île-Perrot (Ville de) et Union des employés de service, section locale 800, D.T.E. 2000T‑619 (T.A.); Duguay et Paspébiac (Ville de), D.T.E. 2003T-47, SOQUIJ AZ-50152875 (C.T.). This is also true of the application of s. 116(6) C.T.A. to municipal police officers before the enactment of s. 119 P.A. (see e.g. Deux-Montagnes). Section 116(6) C.T.A. may not be worded as a legislative sanction of dismissal, but it undeniably has such an effect.
[52] Furthermore, it is hard to see the appellant’s invocation of s. 116(6) C.T.A. in this case as anything other than an attempt to give effect to a disciplinary measure. Through s. 116(6) C.T.A., the appellant hopes to find a legal basis for its decision to implement the recommendation of its director of public security to dismiss Belleau, a recommendation which was the result of a disciplinary hearing conducted in accordance with the provisions of the collective agreement and the appellant’s Règlement no 756 relating to disciplinary sanctions. I cannot see how an application of s. 116(6) C.T.A. in this case could qualify as an administrative measure.
[53] I further agree with the Court of Appeal that it would not be possible to resolve the conflict by interpreting s. 116(6) C.T.A. as imposing, in effect, a five-year suspension rather than an outright dismissal after which the police officer would regain his or her position. That would be markedly out of step with the existing jurisprudence on s. 116(6) C.T.A., which, as we have seen, has uniformly interpreted s. 116(6) as operating to terminate the municipal employee’s employment.
[54] More importantly, such an approach would not actually resolve the conflict in this case. The legislature, in s. 119, para. 2 P.A., has provided for a limited exception to dismissal. When that exception applies, it results in the police officer’s employment relationship with his or her police force being maintained. This is a key point. The purpose of the exception in s. 119, para. 2 P.A. is to allow a police officer, after the imposition of any disciplinary sanctions, to return to his or her post. An interpretation which suggests that s. 116(6) C.T.A. imposes a five-year suspension would negate this important objective of s. 119, para. 2 P.A. As Deschamps and Fish JJ. admit, such a lengthy suspension — if it can really be called a “suspension” — would force a police officer to find an equivalent position elsewhere as an officer in the Sûreté du Québec, to seek an appointment as a special constable, or even to give up police work altogether and attempt to become a municipal civil servant. These options, even if one considers them to be viable, are far removed from what the exception in s. 119, para. 2 P.A. provides: the preservation of the employment relationship between police officer and police force. With respect, the reading suggested by my colleagues would create two classes of police officers. Those who benefit from the exception in s. 119, para. 2 P.A. and those who do not.
[55] Moreover, it is doubtful whether a municipal police officer who had been suspended for five years pursuant to s. 116(6) C.T.A. would be eligible to transfer to the Sûreté du Québec or to be hired as a special constable. Section 115 P.A., including the requirement in s. 115(3) that a person must be free of a criminal conviction in order to become a police officer, applies whenever a person seeks “to be hired” as a police officer. As such, the hiring requirements apply equally to persons who want to be hired as police officers and to acting police officers who, for whatever reason, would like to be hired by another police force. This is made clear by the last paragraph of s. 115 P.A., which does not apply the hiring requirements when police forces are integrated, amalgamated or merged. There would be little reason for this specific exemption if the s. 115 requirements did not also apply to acting police officers. All this to say that a municipal police officer who was “suspended” by virtue of s. 116(6) C.T.A. would also be unable to be rehired by the Sûreté du Québec or as a special constable by virtue of s. 115(3). There is therefore little grounds for thinking that the application of s. 116(6) C.T.A. would somehow allow a municipal police officer to potentially continue working as a police officer.
[56] The appellant also argues that there is nothing inconsistent in the fact that Belleau is subject to two sets of obligations: one as a police officer, and the other as a municipal employee. There is of course nothing wrong with a municipal police officer having to abide by higher standards as a police officer or as a municipal employee, but where those standards come into conflict, the conflict cannot be explained away by the fact that the two standards emanate from different sources. Here, both statutes provide for the consequences of criminal conduct. One provides for an exception to the rule of dismissal; the other does not. The practical effect of s. 116(6) C.T.A. as it applies to municipal police officers is to negate the limited exception provided by the legislature in s. 119, para. 2 P.A. As such, this is not a case of one legislative regime imposing a higher standard than another. Rather, it is a case of one statute implicitly taking away what another statute has explicitly allowed. It is for this reason that whatever one thinks about which provision should prevail, the conflict is, in my opinion, unavoidable.
[57] I hasten to add, as Bich J.A. noted, that the conflict between s. 116(6) C.T.A. and s. 119 P.A. is not complete. Both provisions continue to apply unproblematically outside of the municipal police officer context. In the case of a municipal police officer convicted of indictable offences, the two sections are also not in conflict since the first paragraph of s. 119 P.A. provides for dismissal without exception. Section 116(6) also covers penal offences that are not captured by s. 119 P.A. Some federal penal offences are punishable for a term of imprisonment for one year or more and could lead to the dismissal of a police officer as a municipal employee: Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 160.1; Importation of Intoxicating Liquors Act, R.S.C. 1985, c. I-3, s. 5(c); Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 238(1); Air Travellers Security Charge Act, S.C. 2002, c. 9, s. 62(2).
5.2.3 How Should the Conflict Between Section 116(6) C.T.A. and Section 119, para. 2 P.A. Be Resolved?
58When a conflict does exist and it cannot be resolved by adopting an interpretation which would remove the inconsistency, the question that must be answered is which provision should prevail. The objective is to determine the legislature’s intent. Where there is no express indication of which law should prevail, two presumptions have developed in the jurisprudence to aid in this task. These are that the more recent law prevails over the earlier law and that the special law prevails over the general (Côté, at pp. 358-62). The first presumes that the legislature was fully cognizant of the existing laws when a new law was enacted. If a new law conflicts with an existing law, it can only be presumed that the new one is to take precedence. The second presumes that the legislature intended a special law to apply over a general one since to hold otherwise would in effect render the special law obsolete. Neither presumption is, however, absolute. Both are only indices of legislative intent and may be rebutted if other considerations show a different legislative intent (Côté, at pp. 358-59).
59In this case, both presumptions point to the conclusion that the Police Act should prevail over the Cities and Towns Act. Section 116 C.T.A. has existed in some form at least since the enactment of An Act respecting Cities and Towns, S.Q. 1922, 13 Geo. V, c. 65, s. 123(12), while s. 119 P.A. is of much more recent vintage. Section 116, and the Cities and Towns Act generally, have been modified since the Police Act came into force but none of these affected s. 116(6) C.T.A. Section 119 P.A. is therefore the newer provision suggesting that the legislature intended it to prevail over s. 116 C.T.A. in case of conflict.
60The Police Act, and s. 119 in particular, is also of a special nature in relation to the Cities and Towns Act in the context of disciplinary matters. The Police Act applies to municipal police officers’ training, the conditions for their employment and generally how the municipal police force is organized. Discipline of municipal police officers is governed either by the professional ethics regime set out in the Act or the disciplinary regulations that municipalities are required by the Police Act to put in place. Section 119 P.A. further requires municipalities to deal with criminal conduct by automatic dismissal. By contrast, the Cities and Towns Act is a general statute providing for the organization and operation of municipalities generally. Section 116 is not focussed exclusively on discipline and also serves to prevent certain persons from taking up municipal employment.
[61] Section 119 P.A. thus satisfies both presumptions in that it is more recent and more specific in comparison to s. 116 C.T.A. But there is another reason to hold that s. 119, para. 2 P.A. should prevail. This has to do with the reasons for the inclusion of the exception in s. 119, para. 2 P.A. In particular, the specific circumstances exception was intended to meet the concerns of police associations that it might not always be fair to dismiss an acting police officer convicted of a hybrid offence (Journal des débats de la Commission permanente des institutions, 1st Sess.,
36th Leg., May 26, 2000, at pp. 2-4). It appears from the debates surrounding s. 119, para. 2 P.A., that it was drafted, like most legislation, so as to satisfy various interests. The Minister of Public Security described the balancing achieved by s. 119 in the following way:
[translation] In [the case of a hybrid offence], the rule is again dismissal, except that a disciplinary committee will be convened and the police officer, if he can raise the fact that the act was committed in exceptional or specific circumstances that justify a sanction other than dismissal, then he can be heard and get something.
. . . This also satisfies concerns in the submissions made to us by the police associations, which said: Listen, it’s terrible, someone who, after a 20-year career, for example, can in exceptional circumstances, let us say he is depressed because a member of his family is seriously ill, and then commits an offence he would never have committed otherwise, a minor offence such as shoplifting, or even impaired driving, etc. Well, in such circumstances, he could raise those specific circumstances, which might justify another sanction. So I think this responds at the same time to the justified criticisms that were made.
I also believe that this satisfies the public’s concerns. . . . As you can see, members of the general public think, like us, that a police officer should not have a criminal record. But I think that, if certain exceptional cases, like those presented by the Fraternité des policiers de Montréal, were put to them, they might be open to their having one. This is what it means. [Emphasis added; pp. 2-3.]
62If s. 116(6) C.T.A. is held to prevail over s. 119, para. 2 P.A., then the stated legislative objective of providing a narrow exception for all police officers who have committed a hybrid offence during the course of their career will be defeated. Municipal police officers will be dismissed by virtue of s. 116(6) C.T.A. (or s. 269 of the Municipal Code of Québec) without the benefit of being able to prove that there are specific circumstances to justify another sanction. There is no indication in the debates that the exception in para. 2 of s. 119 P.A. was not intended to apply to municipal police officers. Indeed, the debates suggest that a conscious policy choice was made, after taking into account the views of various interests, to provide a specific exception for all acting police officers. In my view, courts should avoid an interpretation that would serve to defeat such a clearly stated legislative objective. This gives further support for the conclusion that s. 119, para. 2 P.A. should prevail over s. 116(6) C.T.A. in case of conflict.
[63] Like the Court of Appeal, I do not find persuasive the appellant’s argument that the absence of any positive exclusion of s. 116(6) C.T.A. in relation to municipal police officers suggests that it should prevail over s. 119, para. 2 P.A. The appellant points to the fact, as did Lemelin J., that the Cities and Towns Act has been modified a number of times subsequent to the enactment of the new Police Act. Some provisions of the Cities and Towns Act relating to discipline were even modified by the Police Act itself (ss. 71 and 72 C.T.A. by ss. 316 and 317 P.A.). On none of these occasions did the legislature see fit to disapply or modify the application of s. 116(6) C.T.A. to municipal police officers. This line of argument is, however, of little assistance when confronted with an absence of express legislative intent. It could just as easily be said that since s. 119 P.A. was enacted without expressly excluding municipal police officers, it was intended to apply to all police officers without distinction. Indeed, this makes more sense as it preserves the legislative bargain that was struck when s. 119 P.A. was drafted without offending the applicability of s. 116(6) C.T.A. to other municipal employees. Moreover, as Bich J.A. noted, the amendments made to the Cities and Towns Act were to references to the previous version of the Police Act. This is hardly evidence of legislative intent that s. 116(6) C.T.A. should take precedence over s. 119, para. 2 P.A.
[64] For similar reasons, I see nothing determinative in the fact that s. 116(6) C.T.A. was not mentioned in the legislative debates surrounding s. 119, para. 2 P.A. On the contrary, this would seem to be further evidence that the legislature intended that provision to apply equally to all police officers. If municipal police officers were meant to be treated differently, one would expect that this point would have been raised in the debates.
[65] A final argument raised by the appellant is that allowing s. 119, para. 2 P.A. to prevail over s. 116(6) C.T.A. would create two classes of municipal employees. The implication is that municipal police officers might be treated more leniently than other municipal employees. The Court of Appeal rejected this argument on the grounds that the same could be said about allowing s. 116(6) C.T.A. to prevail. This would in effect create two classes of police officers contrary to the stated intentions behind s. 119 P.A. There is another reason why the appellant’s concern is unfounded. As we have seen, municipal police officers were treated differently from other municipal employees before s. 119, para. 2 P.A. was enacted, by virtue of the way the connection requirement in s. 116(6) C.T.A. applied to police officers. The concern over creating distinctions between municipal police officers and other municipal employees is therefore misplaced. Moreover, s. 119, para. 2 P.A., by requiring dismissal except if there are specific circumstances, continues to impose higher standards on municipal police officers. Allowing it to prevail over s. 116(6) C.T.A. would not significantly alter the relative treatment of municipal police officers compared to municipal employees. It would, a fortiori, not result in municipal police officers being treated more leniently than municipal employees.
66Lastly, the predominance of s. 119, para. 2 P.A. seems to concord with the status quo and would not represent a marked departure from current practice. For instance, in his report recommending the dismissal of Belleau, the appellant’s director of public security relied on the breaches of the municipality’s discipline regulations, s. 119, para. 2 P.A. and the absence, in his opinion, of specific circumstances rather than the Cities and Towns Act. This is not surprising given the comprehensive nature of the new Police Act in relation to disciplinary matters, including criminal conduct, but it does confirm that the disruptions that would be caused by disapplying s. 116(6) C.T.A. in the limited context of municipal police officers convicted of hybrid criminal offences are not as grave as the appellant, with hindsight, makes them out to be.
[67] To summarize, the conflict between s. 116(6) C.T.A. and s. 119, para. 2 P.A. should be resolved in favour of the latter. As the more recent and more specific provision, s. 119, para. 2 P.A. should take precedence. This would give effect to legislative intention as reflected by the presumptions and, more specifically, in the debates surrounding the enactment of s. 119, para. 2 P.A. Section 119, para. 2 P.A. was intended to satisfy a number of divergent interests and to recognize that dismissal may not be the appropriate sanction in every case. No violence is done to municipal law and no unfairness is visited upon municipal employees by allowing s. 119, para. 2 P.A. to prevail in case of conflict. Municipal employees are still subject to s. 116(6) C.T.A. and still benefit from the less restrictive (relative to municipal police officers) application of its terms. Municipal police officers must still suffer the consequences of s. 116(6) C.T.A. for offences outside the ambit of s. 119, para. 2 P.A., and they are still bound by s. 119, para. 2, which requires, as a general rule, dismissal for hybrid offences. Only in limited situations where a police officer can demonstrate specific circumstances will another sanction be possible.
5.3 Application of Section 119, para. 2 P.A.
68The final issue that must be considered is whether the arbitrator committed a reviewable error in finding that Belleau had demonstrated specific circumstances that justified a sanction other than dismissal under s. 119, para. 2 P.A. I am of the opinion that the arbitrator’s decision on this issue was unreasonable, although for different reasons than those given by the Superior Court.
69An initial problem with the arbitrator’s decision is that he equated his jurisdiction under s. 119, para. 2 P.A. to the jurisdiction he would normally enjoy under s. 100.12(f) L.C. A grievance arbitration involving the application of s. 119, para. 2 P.A. is different than one involving only s. 100.12(f) L.C. Under s. 119, para. 2 P.A., the municipality does not have the burden of proving that dismissal was the appropriate sanction. The burden is rather on the police officer to show that specific circumstances exist to exclude dismissal. The arbitrator is also not free to substitute the decision that he or she deems to be fair and reasonable. Unless the police officer can demonstrate specific circumstances, the arbitrator must confirm the dismissal. The arbitration is still governed by the collective agreement and the Labour Code, but the arbitrator does not have the same discretion in disciplinary matters that he or she would otherwise enjoy under s. 100.12(f). This is a necessary implication of s. 119 P.A., which was intended to make dismissal for criminal conduct the general rule. If arbitrators maintained their plenary jurisdiction under s. 100.12(f) there would be little point to a provision that mandates dismissal. The reasonable interpretation of s. 119, para. 2 P.A. is one under which the arbitrator’s jurisdiction is limited to considering whether the police officer has demonstrated specific circumstances and, if so, what other sanction should be applied.
70In deciding whether there are specific circumstances, the arbitrator must not lose sight of the special role of police officers and the effect of a criminal conviction on their capacity to carry out their functions. A criminal conviction, whether it occurs on-duty or off-duty, brings into question the moral authority and integrity required by a police officer to discharge his or her responsibility to uphold the law and to protect the public. It undermines the confidence and trust of the public in the ability of a police officer to carry out his or her duties faithfully: Deux-Montagnes; Ville de Lévis. This requirement is reflected in the police Code of ethics, discipline regulations such as the appellant’s Règlement no 756 and, importantly, in the Police Act itself in ss. 115(3) and 119 P.A.
[71] While dismissal is the harshest disciplinary sanction that can be imposed, it is worth recalling that the criminal offences targeted by both paragraphs of s. 119 P.A. are serious ones. They are all offences for which Parliament has considered it necessary to attach the possibility of significant terms of imprisonment. A conviction for a summary offence does not entail dismissal in all cases. Dismissal is only mandatorily prescribed for indictable or hybrid offences that can be prosecuted either by indictment or summary conviction.
[72] The limited exception provided in the second paragraph of s. 119 P.A. must be considered in this light. The general rule is that conviction for an indictable or hybrid criminal offence by an acting police officer leads to dismissal. The ability to invoke “specific circumstances” to justify a lesser sanction, while an important safeguard against unfairness, must not be taken as a general licence for arbitrators to impose what sanction they think is appropriate.
73What constitutes “specific circumstances” is not defined in the legislation. However, in discussing the exception in s. 119, para. 2 P.A., the Minister commented on what types of specific circumstances might be considered:
[translation] Listen, it’s terrible, someone who, after a 20-year career, for example, can in exceptional circumstances, let us say he is depressed because a member of his family is seriously ill, and then commits an offence he would never have committed otherwise, a minor offence such as shoplifting, or even impaired driving, etc. Well, in such circumstances, he could raise those specific circumstances, which might justify another sanction.
If we consider the examples given to us by the associations representing police officers, I think it is clear that [specific circumstances] can or cannot be shown. I mean, if someone, for example, following a severe depression, continued to work, or even if he was on leave without pay because of an unfortunate incident that occurred, well, I mean, it either did or did not occur, and then, I mean, I feel that such things, which are established in an award. . . . I do not believe the burden of proof generally has so great. . . . When such things happen, they are easy to prove on a preponderance of evidence rather than by raising a doubt.
(Journal des débats de la Commission permanente des institutions, May 26, 2000, at pp. 3-4)
The range of appropriate considerations is of course in no way exhausted by the Minister’s comments. Indeed, in the absence of any legislative indication to the contrary, it would be inappropriate to limit specific circumstances to certain types of considerations. Broadly speaking, an arbitrator may take into account any circumstance surrounding the offence which relates to whether the police officer will be able to continue to serve the public effectively and credibly. Reference to attenuating and aggravating circumstances in other employment law contexts may sometimes be useful, but this must be done with regard to the unique issues that are raised by the criminal conduct of police officers.
74In light of these comments, the arbitrator was entitled to consider the specific circumstances that he did. Belleau’s family problems were plausibly related to his conduct on the evening and morning of December 29 and 30. Similarly, it was relevant that Belleau was a long-serving officer who had no prior record of disciplinary problems and who, the evidence suggested, was generally seen as a non-violent man.
75Another important element is of course consideration of the gravity and the nature of the offences. The Minister spoke of [translation] “a minor offence” but, as I have said, that cannot be determinative. While s. 119, para. 2 P.A. imposes dismissal for all hybrid offences, that does not mean that the nature of the offences and the circumstances surrounding them will not be relevant to whether specific circumstances can be found to exist in a given case. This is especially so, given the variety of hybrid offences and the obvious fact that not all offences are committed in the same way. In my view, the decision of the arbitrator is unreasonable in this case mainly because of his failure to properly relate the factors considered to the special role of a police officer. For instance, though it may have been reasonable for the arbitrator to take into account that there were no traces of violence or physical harm, it was not reasonable for him to attach great importance to this fact without considering the violent nature of the conduct of the officer. Even if there are no definitive findings of fact regarding specific acts of violence, the context here is one of domestic violence, and the officer pleaded guilty to a charge of assault on his wife; this is a very important consideration in light of the reliance of the public on police intervention in such cases, one the arbitrator could not reasonably ignore.
76Furthermore, the firearm offences cannot be attributed to Belleau’s personal problems, nor can they be justified, as the arbitrator sought to do, merely on the grounds that they are technical offences. Firearms are dangerous. That is why the Criminal Code prohibits their storage in a careless manner. Belleau, as a police officer, would have known the importance of safety surrounding firearms. The fact that his house may have been under construction is not a reasonable excuse for why the firearms were not properly stored. He knew the importance of properly storing firearms and that the state of one’s house was no exception to the legal requirements. He could have easily brought the firearms to a place where they would have been legally and safely stored.
77More serious still is Belleau’s conscious defiance of his undertaking to the court not to communicate with his spouse. As a police officer, Belleau would have known the importance of undertakings to the court. The breach of an undertaking by a police officer is especially serious, given the role that police officers play in the administration of justice. It suggests a lack of respect for the judicial system of which he forms an integral part. Moreover, the obligation not to communicate with his spouse was the most important obligation in the undertaking. The seriousness of the breach of this obligation is further evidenced by the fact that the Crown chose to prosecute the offence by way of indictment.
78The arbitrator excused Belleau’s breach of his undertaking on the grounds that his conduct on December 29 and 30 had to be seen as forming a continuum. But it is difficult to see how his mental state and intoxication from the previous evening could reasonably explain Belleau’s conduct the next day, several hours after the incident and two hours after he had agreed to the undertaking. There is no question that Belleau clearly understood the terms of his release. Indeed, his arraignment that day would have impressed upon him the seriousness of his actions the night before. I am thus unable to see how it would be reasonable to conclude that Belleau’s conduct could be justified on the grounds that he was not fully aware of what he was doing when he breached his undertaking.
79As mentioned earlier, the arbitrator failed to properly weigh the effect of Belleau’s criminal conduct on his ability to carry out his duties as a police officer; this affected the rationality of his decision. Although the issue of public trust and confidence should not be approached exclusively from the vantage of media reports, it is also unreasonable to suggest that had the public been properly informed of the specific circumstances, it would still have confidence in Belleau as a police officer. Unfortunately, whether they tell the whole story or not, media reports of criminal conduct by police officers do have an effect on public confidence, and, once lost, that confidence is extremely difficult to regain. Moreover, it is entirely possible that for some members of the public, even if they were informed of the specific circumstances, they would still lack confidence in Belleau’s ability to perform his duties. One only needs to think of a victim of domestic abuse to realize that some would have understandable difficulty trusting Belleau. This is not to say that such considerations should necessarily trump any specific circumstances that have been proven. Rather, public confidence must be an important part of the balancing that takes place when considering whether specific circumstances are found to justify the avoidance of dismissal. But in treating the issue as one about properly informing the public, the arbitrator failed to take into account the gravity of the offences committed by Belleau and the effect that they would have on public confidence.
[80] Given all the elements discussed above, taken together, it was unreasonable for the arbitrator to conclude that the specific circumstances raised by Belleau were sufficient to satisfy the s. 119 P.A. exception. Such a conclusion undercuts the grave importance that is attached by s. 119 P.A. to criminal conduct by police officers.
- Conclusion
81This appeal should be resolved according to the law governing police and not municipal law. While s. 119, para. 2 P.A. allows for a narrow exception to dismissal when a police officer can demonstrate specific circumstances, the justification of another sanction must itself be reasonable. Accordingly, the appeal should be allowed and the sanction of dismissal restored, with costs to the appellant before the Court of Appeal and before this Court.
English version of the reasons delivered by
82Deschamps and Fish JJ. — We agree with Bastarache J.’s conclusion concerning the applicability of s. 119, para. 2 of the Police Act, R.S.Q., c. P‑13.1 (“P.A.”), to the facts of this case. With respect, however, we are of the opinion that s. 119, para. 2 P.A. is compatible with s. 116(6) of the Cities and Towns Act, R.S.Q., c. C‑19 (“C.T.A.”).
[83] For almost one hundred years, the Court’s view has been that two provisions can apply concurrently if they are not contradictory. The fact that one provision is more restrictive or imposes different conditions than the other, or that both provisions apply to the same person and the same fact situation, is in itself insufficient to support the conclusion that one of the provisions has been repealed or is inapplicable in part. In the case at bar, disqualifying individuals from municipal employment during the five‑year period provided for in s. 116 C.T.A. is not incompatible with the exception to dismissal set out in s. 119, para. 2 P.A. In the words used by Bastarache J., this is not a case where one enactment says “yes” and the other says “no”. We therefore agree with the principles stated by Bastarache J. on this point, but we find that he applies them in a way that gives the concept of conflict a scope that is broader than the one it is recognized as having at law.
- Provisions in Issue
[84] Bastarache J. is of the opinion that s. 116 C.T.A. is inapplicable where an arbitrator concludes under s. 119, para. 2 P.A. that specific circumstances justify a sanction other than dismissal. In his interpretation of the provisions in question, our colleague relies, inter alia, on s. 18.2 of the Quebec Charter of human rights and freedoms, R.S.Q., c. C‑12, and s. 115 P.A. In our view, there is no need to rely on s. 18.2 of the Quebec Charter to resolve this dispute. We feel that the interpretation of that provision should await a case in which the issue is raised. Section 115 P.A., however, is quite relevant, and it will be appropriate for us to discuss it, since our interpretation differs from the one advanced by Bastarache J. The provisions to which we will be referring read as follows:
Police Officers.
- To be hired as a police officer a person must meet the following requirements:
(3) not have been found guilty, in any place, of an act or omission defined in the Criminal Code (Revised Statutes of Canada, 1985, chapter C‑46) as an offence, or of an offence referred to in section 183 of that Code under one of the Acts listed therein;
Special constables.
The requirements specified in subparagraphs 1 to 3 of the first paragraph apply also to special constables.
Additional requirements.
The Government may, by regulation, prescribe additional hiring requirements for police officers and special constables.
Additional requirements.
Municipalities may do likewise as regards members of their police forces and municipal special constables. Such additional requirements may vary depending on whether they apply to a police officer or to a special constable.
Applicability.
The hiring requirements do not apply to the members of police forces when police services are integrated, amalgamated or otherwise merged.Conviction.
- Any police officer or special constable who is found guilty, in any place, of an act or omission referred to in subparagraph 3 of the first paragraph of section 115 that is triable only on indictment, shall, once the judgment has become res judicata, be automatically dismissed.
Conviction.
A disciplinary sanction of dismissal must, once the judgment concerned has become res judicata, be imposed on any police officer or special constable who is found guilty, in any place, of such an act or omission punishable on summary conviction or by indictment, unless the police officer or special constable shows that specific circumstances justify another sanction.
Disqualification under other Act.
- The following persons shall not be appointed to or hold any office as an officer or employee of the municipality:
Crime;
(6) Any person convicted of treason or of an act punishable under a law of the Parliament of Canada or of the Legislature of Québec, by imprisonment for one year or more.
Such disqualification shall continue for five years after the term of imprisonment fixed by the sentence, and, if only a fine was imposed or the sentence is suspended, for five years from the date of such condemnation, unless the person has obtained a pardon;
Disqualification.
Disqualification from municipal office or employment under subparagraph 6 or 7 of the first paragraph shall be incurred only if the offence is in connection with such an office or employment.
- Golden Rule Applicable to Conflicts
85The golden rule where laws conflict is that if there is a reasonable interpretation that allows two enactments to be reconciled, that interpretation must prevail. As Professor Pierre‑André Côté writes:
But there is a strong presumption against implied repeal of one enactment by another. Any interpretation permitting reconciliation is to be favoured, because it is assumed this better reflects the work of a . . . legislature.
(The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 349)
86This statement of the rule is based on a comment by the Quebec Court of King’s Bench that has never been called into question:
Repeal by implication is not favoured. It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments on the statute book or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted unless it be inevitable. Any reasonable construction which offers an escape from it, is more likely to be in consonance with the real intention.
(Duval v. The King (1938), 64 B.R. 270, at p. 273)
87In Daniels v. White, 1968 CanLII 67 (SCC), [1968] S.C.R. 517, at p. 526, Judson J. endorsed an equally clear and restrictive formulation of the rule taken from Halsbury’s Laws of England (3rd ed. 1961), vol. 36, at p. 466: two laws conflict “if, but only if, [one of them] is so inconsistent with or repugnant to [the] other that the two are incapable of standing together” (see to the same effect R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 178). The courts have interpreted the meaning of the word “conflict” as narrowly as possible.
88Some commentators implicitly incorporate the constitutional principles of the paramountcy doctrine into the analysis of conflicts between statutes or regulations: Sullivan, at pp. 178‑79. The “doctrinal similarity” to the principles of paramountcy was noted by La Forest J. in Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, at pp. 38‑39. The parallels are obvious. Thus, in Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161, at p. 191, a “conflict” is defined as a situation in which “one enactment says ‘yes’ and the other says ‘no’; ‘the same citizens are being told to do inconsistent things’; compliance with one is defiance of the other”.
89If, for reasons related in large part to the balancing of legislative powers within Confederation, a restrictive approach has been taken to conflicts in constitutional law, the rule should in our view be applied even more rigorously where the conflicting laws have been enacted by a single legislature. Since the legislature is presumed to know its own laws and to intend that they be applied consistently, the application of a rule favouring an interpretation that makes it possible to avoid conflicts is fully justified.
90A finding by a court that a conflict exists is necessarily founded on an assumption that the legislature has been inconsistent in enacting its laws. It is therefore only where conflict is unavoidable that a court must apply the principles of interpretation that give precedence to one law over the other, in which case the conflicting provision will be tacitly repealed or found to be partially inapplicable.
- The Two Provisions in Issue Are Reconcilable
91The respondents contend that neither the appellant nor the Superior Court judge has explained how the two provisions can be applied concurrently in practice. In our opinion, the following scenarios provide a full answer to this statement:
(1) Where a municipal police officer commits an indictable offence. In such a case, the first paragraph of s. 119 P.A. provides that dismissal from the police force is automatic. Section 116 C.T.A. imposes a five‑year disqualification from employment by the municipality except where the offence is not in connection with the office or employment. (This exception implicitly does not apply to police officers because there will generally be a connection between the commission of an indictable offence and employment as a police officer.) After five years, the dismissed officer is still ineligible, under s. 115 P.A., to be rehired as a police officer, but can be hired as a municipal employee in any other capacity. There is no conflict under this scenario, and both laws can apply concurrently.
(2) Where a municipal police officer commits a crime that is a hybrid offence punishable by imprisonment for one year or more and there are no specific circumstances that justify a sanction other than dismissal. Both laws can apply concurrently in the same manner as in scenario (1).
(3) Where a municipal police officer commits a crime that is a hybrid offence punishable by imprisonment for one year or more but there are specific circumstances that justify a sanction other than dismissal from employment as a police officer. In this case, the officer is not dismissed from the municipal police force but, in light of s. 116 C.T.A., is nonetheless disqualified for five years from employment by the municipality. After five years, however, the officer requalifies as an employee of the municipality. During the five years of disqualification, the officer can work as a police officer for the Sûreté du Québec or as a special constable, or can work for a municipality in any capacity where the offence is not in connection with the office or employment. The two laws can apply concurrently.
In our view, the two provisions are thus perfectly reconcilable. There is no conflict in the fact that, in the third scenario, they apply concurrently to deprive the officer of his or her employment as a municipal employee for a period of five years even though he or she has not lost the right to serve as a police officer: this is the consequence of the relevant provision of the C.T.A. The C.T.A. clearly evinces the legislature’s intention in this regard.
92Although the rule appears to involve a purely literal test, it is now accepted that a court assessing the compatibility of two laws must, in addition to determining whether there is an express conflict between them, consider their respective purposes to ensure that the legislature’s objective will not be frustrated if the laws in question are applied concurrently: Rothmans, Benson & Hedges Inc. v. Saskatchewan, [2005] 1 S.C.R. 188, 2005 SCC 13, at para. 12. Thus, the court must ensure that the proposed interpretation does not frustrate the purposes of the provisions in question.
- Purposes of the Provisions in Issue
93Bastarache J. refers to certain elements that, in his opinion, show the provisions to be incompatible. In our view, it can be seen by reading all the provisions in issue together that this incompatibility is merely apparent.
[94] Section 119 P.A. is disciplinary in nature. However, the sanction of dismissal has an impact on the individual’s eligibility to serve as a police officer under the P.A. The use of the words dismissal in English and destitution in French clearly demonstrates the overlap. An arbitrator is not entitled to review an employer’s decision to terminate the employment of a police officer who has been convicted of an indictable offence. Under s. 115 P.A., the officer is not only dismissed, but is also no longer eligible to serve as a police officer. Where an officer is convicted of a hybrid offence, on the other hand, the employer and the arbitrator have a discretion that, when exercised, can have a decisive impact both on the officer’s employment and on his or her eligibility to serve as a police officer. If the officer establishes the existence of specific circumstances, the employer or the arbitrator may substitute a less severe sanction for dismissal. In such a case, the officer is not disqualified from serving as a police officer under the P.A.
[95] The fact that an officer who benefits from the exception under s. 119 P.A. continues to be eligible to serve as a police officer obviously has an impact on the interpretation of s. 115 P.A. If it is found under s. 119 that the officer is fit to serve as a police officer, this also holds true for any other police officer positions that he or she may apply for in the future. Thus, an officer could be dismissed because a municipality that is duly authorized to do so decides to abolish its police force and terminate the employment of all its police officers. An officer who has benefited from the exception under s. 119 P.A. will be able to apply for a position on another police force, because he or she will still be eligible to serve as a police officer under the P.A. Similarly, an officer who wants to apply for a position on another police force for personal reasons, relating perhaps to a move or a possibility of promotion, cannot be told, on the basis of s. 115 P.A. alone, that he or she is ineligible owing to a conviction for a hybrid offence. Section 115 must necessarily be read in conjunction with s. 119 P.A. Where an officer has benefited from the exception under s. 119 P.A., this must be reflected in the interpretation of s. 115 P.A. Otherwise, it would be difficult to meet the clear objective of the exception that the legislature has expressly established, namely to allow the individual in question to continue his or her career as a police officer.
96We agree with Bastarache J. that the exception must be interpreted very narrowly. However, if an officer can establish the existence of specific circumstances, he or she should be able to benefit from the conclusion of the employer or the arbitrator, as the case may be, for the purposes of any employment that requires eligibility under the P.A. To limit the benefit of the exception to the employment held by the officer at the time of the decision to let the officer keep his or her job would be to make the retention of eligibility conditional on circumstances that have nothing to do with the officer’s conduct or competence. This cannot be in keeping with the spirit and the purpose of the exception.
[97] Consequently, we are of the opinion that a police officer who benefits from the exception also benefits from job mobility. Should the officer’s employment be terminated for any reason whatsoever, he or she may apply for employment in another police force. This is relevant where the compatibility of s. 119 P.A. with s. 116 C.T.A. is concerned, because an officer who retains his or her eligibility is not barred from working for the Sûreté du Québec or as a special constable.
98When the P.A. and the C.T.A. are read together, it is clear that the former governs the capacity to serve as a police officer and the sanctions attached to breaches of the conditions of eligibility for a position as a police officer, while the latter governs the conditions of eligibility for municipal office or employment. A person who is qualified to serve in both capacities must meet the conditions of both statutes. This dual impact on the individual’s employment is not a ground for not applying one of the standards.
- Examples From the Case Law
99The Court has heard similar arguments in criminal law cases in which the facts were clearly analogous to those of the case at bar. In Provincial Secretary of Prince Edward Island v. Egan, 1941 CanLII 1 (SCC), [1941] S.C.R. 396, the Court had to decide whether two statutory provisions could be applied concurrently. The first, a provision of the Criminal Code, authorized the imposition of restrictions on the operation of motor vehicles. Under the second, a provision of a province’s highway safety legislation, the driver’s licence of a person convicted of an offence under the Criminal Code was to be suspended or revoked automatically. What was in issue in the case was that the trial judge, in sentencing the offender, had exercised his discretion and decided, under the federal legislation, that no driving restrictions would be imposed on the offender. The Court did not see any problem in applying the two standards concurrently. The fact that the judge who heard the criminal case had not imposed a suspension did not render the automatic suspension provided for under provincial law inapplicable. See to the same effect: Ross v. Registrar of Motor Vehicles, 1973 CanLII 176 (SCC), [1975] 1 S.C.R. 5; Bell v. Attorney General for Prince Edward Island, 1973 CanLII 177 (SCC), [1975] 1 S.C.R. 25.
[100] In our view, the parallel with the case at bar is obvious. In one case, the provincial provision requiring the suspension of the driver’s licence was not rendered inapplicable by the exercise of the discretion not to suspend it. In the other case, the one now before the Court, the sanction of temporary disqualification provided for in s. 116 C.T.A. would not have been rendered inapplicable by the arbitrator’s conclusion under s. 119, para. 2 P.A. that specific circumstances justified the imposition of a sanction other than dismissal.
101Both cases concern the exercise of an activity: one, the driving of a motor vehicle, and the other, the holding of employment. In both situations, the activity could continue to be carried out under one provision, but was suspended under the other. These decisions make it particularly clear that conflict is to be interpreted narrowly.
[102] In municipal law, the area of law applicable to the facts of the instant case, there are several examples of the concurrent application of two standards that differ in severity. For present purposes, it is enough to say that municipal employees are often subject to standards in addition to those provided for in the C.T.A. Professionals or other officers or employees who perform duties governed by different statutes are not automatically exempt from any of those statutes. For example, the courts have held that a statute establishing an administrative measure designed solely to regulate the conditions to be met to be eligible for and hold municipal office was perfectly compatible with a penal provision that applied to the same person and the same fact situation: Ricard v. Lord, 1939 CanLII 42 (SCC), [1941] S.C.R. 1; Beaudoin v. Roy, 1983 CanLII 2642 (QC CS), [1984] R.L. 315 (Sup. Ct.); Roy v. Mailloux, [1966] B.R. 468. The provisions in question are complementary. In the case of police officers, s. 115 P.A. explicitly provides for the possibility of imposing additional conditions on them.
[103] Thus, the argument that a police officer who would otherwise benefit from the exception under s. 119 cannot have that benefit taken away by means of a suspension under s. 116 C.T.A. is supported neither by the rule for interpreting conflicts between statutes nor by the case law. The need to comply with two rules, one of which is more restrictive than the other, is an insufficient basis for concluding that a conflict exists.
- Conclusion
104In the case at bar, the respondents have not shown that the two provisions were incompatible. On the contrary, the two provisions complement each other in that they address two different aspects of the same fact situation.
105For these reasons, we agree with Bastarache J.’s conclusion that the arbitrator’s decision was unreasonable but would add that the two provisions at issue are not incompatible.
The following are the reasons delivered by
106Abella J. — I agree with Justice Bastarache’s analysis of s. 119, para. 2 of the Police Act, R.S.Q., c. P-13.1; with his conclusion that it is in conflict with and should prevail over s. 116(6) of the Cities and Towns Act, R.S.Q., c. C-19; with his conclusion that the arbitrator’s application of s. 119, para. 2 to Belleau was unreasonable. Where I part company with him, with great respect, is in his discussion of the standards of review.
107The primary concern I have relates to his determination that the arbitrator’s decision whether to apply s. 119, para. 2 should be subjected to a different standard than his decision on how to apply it. It seems to me that applying the factors in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982, the clear legislative directive here is that the arbitrator’s decision as a whole is entitled to deference.
108First, there is an unequivocal privative clause in s. 101 of the Quebec Labour Code, R.S.Q., c. C-27, stating that the arbitrator’s award is “without appeal” and “binds the parties”. Second, s. 100.12(a) of the Labour Code authorizes the arbitrator to “interpret and apply any Act or regulation to the extent necessary to settle a grievance”.
109The privative clause is the legislature’s way of protecting the arbitrator’s exclusive responsibility for deciding the grievance, and s. 100.12(a) clothes him with the authority to determine how any relevant statutory provision ought to apply to it. Any assessment of the degree of deference owed to the arbitrator must be respectful of these unambiguous legislative instructions. Combined with the expertise of the arbitrator in labour disputes and the legislative objective of having them resolved expeditiously and conclusively, there seems to me to be a strong argument in favour of an integrated standard for assessing the arbitrator’s interpretation both of his jurisdictional mandate and its application.
110As this Court held in Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487, at para. 39, the interpretation of legislation, external or otherwise, that is “intimately connected with the mandate of the tribunal and is encountered frequently as a result” is entitled to deference. (See also Canada Post Corp. v. Smith (1998), 1998 CanLII 1947 (ON CA), 40 O.R. (3d) 97 (C.A.).) In interpreting the applicability of s. 119, para. 2 of the Police Act and s. 116(6) of the Cities and Towns Act, the arbitrator was interpreting and applying legislation relating to issues of the discipline and sanctioning of police officers. Both issues are central to his mandate to decide the grievance under the collective agreement and the Labour Code.
111There is a danger that the routine segmentation of such mandates leads to an unduly interventionist approach more reminiscent of “the wrong question” or “preliminary or collateral matter” doctrines found in cases like Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 W.L.R. 163 (H.L.), and Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, 1970 CanLII 7 (SCC), [1970] S.C.R. 425, than of the more deferential approach applied by Dickson J. in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, at p. 233. Dickson J.’s admonition in C.U.P.E. remains instructive:
The question of what is and is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so.
112Similarly, legal issues ought not to be declared readily extricable when they are legitimately and necessarily intertwined with the adjudicator’s mandate and expertise. In such circumstances, the decision ought to be reviewed as a whole, not as a segmented compilation subject to an increased degree of scrutiny and intervention. As LeBel J. observed in Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63, at para. 76:
[T]he various strands that go into a decision are more likely to be inextricably intertwined, particularly in a complex field such as labour relations, such that the reviewing court should view the adjudicator’s decision as an integrated whole.
113This integrated approach was reinforced by Iacobucci J. in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, at para. 56, when he emphasized that “not . . . 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.”
114Similarly in Mattel, Inc. v. 3894207 Canada Inc., [2006] 1 S.C.R. 772, 2006 SCC 22, Binnie J., writing for the majority, refused to separate the legal issue, the interpretation of s. 6 of the Trade-marks Act, R.S.C. 1985, c. T-13, from the Trade-marks Opposition Board’s overall decision, noting, at para. 39, that the “legal issue is not neatly extricable from its factual context, but calls for an interpretation within the expertise of the Board”.
115If, on the other hand, the legal issue is genuinely external to the adjudicator’s mandate or expertise and easily differentiated from other issues in the case, such heightened scrutiny is entirely warranted: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), 1995 CanLII 148 (SCC), [1995] 1 S.C.R. 157.
116In this case, the labour arbitrator’s mandate and expertise merge to entitle him to a single deferential standard of review both for his decision as to the scope of the relevant legislation and its application to this case.
117But I agree, for the reasons given by Bastarache J., that even on that standard, the arbitrator’s decision as to the appropriate sanction is unsustainable.
Appeal allowed with costs.
Solicitors for the appellant: Langlois Kronström Desjardins, Lévis.
Solicitors for the respondents: Trudel, Nadeau, Anjou.
Solicitors for the intervener: Castiglio & Associés, Montréal.
