Jurisdiction and process do matter; police sergeant wins case against the Police Complaint Commissioner

Administrative law – Decisions reviewed – Police Commission – Judicial review – Jurisdiction – Procedural requirements and fairness – Standard of review – Reasonableness – Remedies – Certiorari – Police – Disciplinary proceedings – Professional misconduct or conduct unbecoming

Sandhu v. British Columbia (Police Complaint Commissioner), [2021] B.C.J. No. 2688, 2021 BCSC 2424, British Columbia Supreme Court, December 13, 2021, C.E. Hinkson C.J.S.C.

The Petitioner, Sergeant Ajmer Sandhu, is a member of the Vancouver Police Department (VPD).  The Respondent, Police Complaint Commissioner (“Commissioner”), is an independent officer appointed by the Legislative Assembly of British Columbia.

On March 1, 2018, a member of Crown counsel submitted a complaint to the Commissioner’s office.  She alleged that a VPD constable tried to intimidate her during a criminal trial when she was prosecuting a member of the Petitioner’s family.  She alleged the Petitioner was present for this intimidation.  The Commissioner determined the complaint against the constable was admissible, pursuant to the Police Act.  The Commissioner did not identify any complaint against the Petitioner, nor identify any misconduct on his part.

On March 13, 2018, the VPD issued a Notice of Complaint and Initiation of Investigation.  Chief Constable Sylven was designated as the discipline authority, pursuant to the Police Act.

An investigator was appointed.  The Petitioner provided a written report and participated in two interviews during the investigation of the constable.  The investigator prepared an initial Final Investigation Report (“First Report”).  This was submitted to Chief Constable Sylven on November 20, 2018 and he rejected the First Report and directed the investigator to conduct further investigations.

On December 6, 2018, Chief Constable Sylven advised the Petitioner that his conduct was being investigated.  This was done by the investigator issuing a Notice of Complaint and Initiation of Investigation to the Petitioner.  Four allegations were listed in the investigation notice.  The allegations were based on evidence in the First Report.  In March 2019, the Petitioner participated in a third interview, this time as the subject of an investigation.

In April 2019, the investigator prepared a second final report (“Second Report”).  Chief Constable Sylven found that, based on the Second Report, three out of the four allegations were substantiated against the constable and Petitioner.

In June 2019, the Petitioner received notice of a disciplinary proceeding against him.  The proceeding started on November 6, 2019.  The Petitioner was represented by legal counsel.  The Petitioner did not raise any procedural or jurisdictional objections at or before the hearing.

In February 2020, Chief Constable Sylven rendered a decision, determining that three of the four allegations against the constable and the Petitioner were proven.  He then determined a penalty for each of them.

The Petitioner applied to the Commissioner for a public hearing to dispute the findings.  The Commissioner refused this and directed a Notice of Review on the Record instead.

The Petitioner filed a petition seeking judicial review of Chief Constable Sylven’s decision and the Commissioner’s decision.  The Petitioner sought a stay of the Review on the Record and this was granted.

The Petitioner argued that Chief Constable Sylven did not have jurisdiction to direct the investigation into his conduct.  In the alternative, the Petitioner argued the investigation and discipline proceeding were procedurally unfair.

The Commissioner conceded that Chief Constable Sylven, as discipline authority, did not have jurisdiction to direct the Notice of Complaint and Initiation of Investigation to the Petitioner.  The Commissioner argued that this was a benign procedural flaw.

The Court considered the applicable standard of review, the jurisdictional argument, and the procedural fairness argument.

The Court granted the Petitioner’s application on the basis of jurisdictional error and procedural unfairness.

The Court held that Chief Constable Sylven’s lack of jurisdiction was not a benign procedural flaw.  The Court was not satisfied that the same process would have unfolded if the jurisdictional error was not made. The Court held this was not an exceptional case where the Court should refuse to grant a remedy.

The Court held the Petitioner had not waived his right to raise procedural fairness arguments by not raising them during the hearing itself.  The Court based this decision, in part, on the fact that the Petitioner was not aware that Chief Constable Sylven did not have jurisdiction.

The Court held that Chief Constable Sylven acted in overlapping roles of complainant and adjudicator, and this was procedurally unfair.

The Court granted orders in the nature of certiorari quashing several decisions, including: Chief Constable’s Sylven’s rejection of the First Report, the investigator’s Notice of Complaint and Initiation of Investigation in December 2018, the investigator’s Second Report, the discipline decision relating to the Petitioner, the penalty decision relating to the Petitioner, and the Commissioner’s Notice of Review on the Record.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Scott Marcinkow at [email protected].

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