Trumbley and Pugh v. Metropolitan Toronto Police

Wilson J.‑‑Constables Trumbley and Pugh were at all material times members of the Metropolitan Toronto Police Force. Each was charged with "discreditable conduct" under s. 1(a)(i) of the Code of Offences, Reg. 791, R.R.O. 1980 (Schedule). The particulars include allegations that they had sexual intercourse with a named woman in a "scout car". The offence was designated as a major offence. John W. Ackroyd, the Chief of Police, designated Superintendent Robert Fleming to hold the hearing. Staff Inspector John Addison was designated by the Chief of Police under s. 13 of the regulation to "have conduct of the hearing".

The two constables applied to the Divisional Court for judicial review of certain procedural and evidential rulings made by Superintendent Fleming during the hearing. The Divisional Court ruled against the applicants on each of their submissions and dismissed their application. The Court held, without deciding the issue of the applicability of s. 11 to police disciplinary proceedings, that there was no breach of s. 11(d) of the Charter . The police disciplinary tribunal did not lack independence and impartiality.

The appeal to the Ontario Court of Appeal was dismissed: (1986), 55 O.R. (2d) 570. Morden J.A. for the Court examined the wording of s. 11 and noted that it is replete with criminal law terminology. He also examined the legislative history of s. 11, the marginal note to s. 11 and the authorities on the issue. He concluded (at p. 583) that " `offence' means an offence which is prosecuted in a criminal or penal proceeding". At page 589, he stated:

In my view, a Police Act discipline proceeding is not a criminal or penal proceeding within the purview of s. 11. The most serious consequence that can befall a police officer in such proceedings is the loss of his or her position and, while I do not minimize the seriousness of this consequence, it is a civil consequence and not punishment of a criminal nature. A police discipline matter is a purely administrative internal process. Its most serious possible consequence makes it analogous to a discipline matter in ordinary employer‑employee relationships, even though the procedure governing it is clearly more formal. The basic object of dismissing an employee is not to punish him or her in the usual sense of this word (to deter or reform or, possibly, to exact some form of modern retribution) but rather, to rid the employer of the burden of an employee who has shown that he or she is not fit to remain an employee.

Leave to Appeal was granted by this Court on November 27, 1986.

The following constitutional questions were stated by this Court:

1. Does section 11(d) of the Canadian Charter of Rights and Freedoms (hereinafter referred to as the "Charter ") apply to police disciplinary proceedings under Regulation 791, R.R.O. 1980 made under s. 74(1) of the Police Act, R.S.O. 1980, c. 381 as amended?

2. If section 11(d) of the Charter does apply to these proceedings, is Regulation 791, R.R.O. 1980 inconsis‑ tent with it, and, if so, can the Regulation be justified under s. 1 of the Charter ?

The applicable statutory provisions have been set out in the related case of Trimm v. Durham Regional Police, [1987] 2 S.C.R. 582. For the reasons given in R. v. Wigglesworth, [1987] 2 S.C.R. 541, s. 11 does not apply to police disciplinary proceedings under Regulation 791, R.R.O. 1980. The disciplinary proceedings in this case, which are identical to those employed in the related cases of Trimm v. Durham Regional Police and Burnham v. Metropolitan Toronto Police, [1987] 2 S.C.R. 572, are neither criminal in nature nor do they involve penal consequences. Unlike Wigglesworth, the appellant is not subject to the possibility of imprisonment under the Police Act, R.S.O. 1980, c. 381. I would therefore answer the first constitutional question in the negative. Having regard to my answer to question 1 it is unnecessary to consider question 2.

I would dismiss the appeal.