Municipal Association of Police Personnel v. McNeil

Municipal Association of Police Personnel v. McNeil Court Court of Appeal Date 2009-05-06 Citation 2009 NSCA 45 Docket CA 310327 Judge/Registrar/Adjudicator Hamilton, M. Jill (Honourable Justice) Document Type Decision Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Municipal Association of Police Personnel v. McNeil, 2009 NSCA 45 Date: 20090506 Docket: CA 310327 Registry: Halifax Between: Municipal Association of Police Personnel, Member A.B., Member C.D., Member E.F., Member G.H. Appellants v. Deputy Chief Christopher McNeil, Disciplinary Officer, Halifax Regional Police and Denise Smith, Crown Attorney, Halifax Region Respondents Judge: The Honourable Justice Hamilton Application Heard: April 30, 2009, in Chambers Held: Motion for stay is denied. Counsel: Sandra MacPherson Duncan, Q.C., and Lori Hill for the appellants Martin Ward, Q.C., and David R. Greener for the respondent Deputy Chief Christopher McNeil Edward Gores, Q.C. for the respondent Denise Smith and the Attorney General for Nova Scotia Decision: [1] The relevant facts are set out in the brief filed on behalf of one of the respondents, Deputy Chief Christopher McNeil: 2. On January 16, 2009 the Supreme Court of Canada released the decision R. v. McNeil, 2009 SCC 3, which found that certain disciplinary records of police officers should be included within the scope of the first party disclosure package due to the Crown from the police. 3. Halifax Regional Police undertook a review of disciplinary records of police officers and identified seven current records of misconduct against HRP officers, including the Appellant officers, which might be captured by McNeil and needed to be shared with the Crown to determine relevancy. 4. The seven officers involved, including the Appellants, were provided with notice in writing by letter dated February 20, 2009, that their disciplinary records would be shared with the Crown to determine if the records should be disclosed in some or all of the cases in which they were involved. The officers were invited to make written submissions on the extent of the disclosure which would then be provided to the Crown for their deliberation. 5. On March 27, 2009, counsel for the Appellant Union provided representations on behalf of the Appellants and other officers with respect to the disclosure of their disciplinary records. 6. On March 27, 2009, the full disciplinary files of the seven officers and the representations on behalf of the officers were shared with Denise Smith, Chief Crown Attorney, Halifax Region. She determined that six of the disciplinary records, including those of the Appellant officers, would be relevant to an accused's right to make full answer and defence and should form part of the police first party disclosure package to the Crown and that the Form 12s under the Police Act should be the documents disclosed. 7. On April 9, 2009 Deputy Chief McNeil wrote to counsel for the Union and to the officers to advise them of the decision of the Public Prosecution Service concerning the relevancy of the records and in reply to the request of Union counsel that the records not be released pending the hearing of an application for judicial review and stay. 8. Deputy McNeil advised Union counsel that the records had been shared with the Crown and that he was bound by the decision in McNeil and the decision of the Crown. The disciplinary records of the six officers, including the Appellant officers, have been provided to the Crown for disclosure in the exercise of their discretion in appropriate cases. 9. A review of the outstanding criminal prosecutions indicates that there are a number of cases before the courts where there is currently an obligation to disclose relevant disciplinary records of three of the four Appellant officers. The fourth Appellant is on active law enforcement duty and will be involved in criminal prosecutions. Currently the Appellant officers are involved in eleven cases scheduled for trial commencing on or before June 15, 2009. 10. On April 14, 2009 the Appellants commenced an application for judicial review of the decisions of Deputy Chief McNeil and Denise Smith and filed a motion for directions returnable on April 22, 2009. On April 21, 2009 the Appellants filed a motion for a stay pending the hearing of the judicial review. 11. At the hearing on April 22, 2009 the Chambers Judge adjourned the motion for directions and a stay until May 11, 12, and 13, 2009 and declined the Appellants' further request for an interim stay pending the hearing of those motions. [2] Justice John D. Murphy was the chambers judge. The Municipal Association of Police Personnel (“MAPP”) and the four individual appellants appealed his refusal to grant an interim stay to prevent the disclosure of the discipline records of the four individual appellants until their application for an interlocutory stay pending the hearing of the judicial review could be heard on May 11, 12 and 13, 2009. [3] Their appeal is set to be heard on October 2, 2009 at 10:00 am. It is unlikely that it will proceed given their application for an interlocutory stay scheduled to be heard in the Supreme Court commencing May 11. Counsel for the appellants is to inform the court on or before May 29, 2009 if they will be proceeding with the appeal or abandoning it. [4] The appellants now seek an order from me as chambers judge of this court staying the disclosure of the discipline records until May 11, 2009 under Civil Procedure Rule 90.41(2): 90.41(2) A judge of the Court of Appeal on application of a party to an appeal may, pending disposition of the appeal, order stayed the execution and enforcement of any judgment appealed from or grant such other relief against such a judgment or order, on such terms as may be just. [5] Counsel for the respondents raised a preliminary issue. They questioned whether I have jurisdiction under Rule 90.41(2) to grant the relief requested which is akin to exercising original jurisdiction. I would be doing, for a second time, the same analysis Justice Murphy carried out on April 22, 2009, albeit on different evidence, as opposed to reviewing the effect of Justice Murphy’s order. [6] A similar jurisdictional argument was dealt with by the Supreme Court of Canada in RJR - McDonald Inc. v Canada, [1994] 1 SCR 311 on wording in its rules of court that is very similar to Rule 90.41(2). The Court said: 30 In light of the foregoing and bearing in mind in particular the language of s. 97 of the Act we cannot agree with the first two points raised by the Attorney General that this Court is unable to grant a stay as requested by the applicants. We are of the view that the Court is empowered, pursuant to both s. 65.1 and r. 27, not only to grant a stay of execution and of proceedings in the traditional sense, but also to make any order that preserves matters between the parties in a state that will prevent prejudice as far as possible pending resolution by the Court of the controversy, so as to enable the Court to render a meaningful and effective judgment. The Court must be able to intervene not only against the direct dictates of the judgment but also against its effects. This means that the Court must have jurisdiction to enjoin conduct on the part of a party in reliance on the judgment which, if carried out, would tend to negate or diminish the effect of the judgment of this Court. In this case, the new regulations constitute conduct under a law that has been declared constitutional by the lower courts. (Emphasis added) 31 This, in our opinion, is the view taken by this Court in Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 594. The appellant Labatt, in circumstances similar to those in this case, sought to suspend enforcement of regulations which were attacked by it in an action for a declaration that the regulations were inapplicable to Labatt's product. The Federal Court of Appeal reversed a lower court finding in favour of Labatt. Labatt applied for a stay pending an appeal to this Court. Although the parties had apparently agreed to the terms of an order suspending further proceedings, Laskin C.J. dealt with the issue of jurisdiction, an issue that apparently was contested notwithstanding the agreement. The Chief Justice, speaking for the Court, determined that the Court was empowered to make an order suspending the enforcement of the impugned regulation by the Department of Consumer and Corporate Affairs. At page 600, Laskin C.J. responded as follows to arguments advanced on the traditional approach to the power to grant a stay: It was contended that the Rule relates to judgments or orders of this Court and not to judgments or orders of the Court appealed from. Its formulation appears to me to be inconsistent with such a limitation. Nor do I think that the position of the respondent that there is no judgment against the appellant to be stayed is a tenable one. Even if it be so, there is certainly an order against the appellant. Moreover, I do not think that the words of Rule 126, authorizing this Court to grant relief against an adverse order, should be read so narrowly as to invite only intervention directly against the order and not against its effect while an appeal against it is pending in this Court. I am of the opinion, therefore, that the appellant is entitled to apply for interlocutory relief against the operation of the order dismissing its declaratory action, and that this Court may grant relief on such terms as may be just. [Emphasis in original] [7] Given the need for me to give my decision quickly in light of the resumption of proceedings in the Supreme Court on May 11, for the purpose of this motion I have assumed that I have jurisdiction under Rule 90.41(2) to grant the relief sought. The highlighted reasons in the above quote suggest to me that a judge of this court may grant relief not only against an order appealed but also against its effects by enjoining conduct on the part of a party in reliance on the order which, if carried out, would tend to negate or diminish the effect of the judgment of this court. [8] RJR - MacDonald, supra, which dealt with an application for an injunction, indicates that the test to be applied in deciding whether to grant an interim injunction or stay is the same: 41 Generally, the same principles should be applied by a court whether the remedy sought is an injunction or a stay. In Metropolitan Stores, at p. 127, Beetz J. expressed the position in these words: A stay of proceedings and an interlocutory injunction are remedies of the same nature. In the absence of a different test prescribed by statute, they have sufficient characteristics in common to be governed by the same rules and the courts have rightly tended to apply to the granting of interlocutory stay the principles which they follow with respect to interlocutory injunctions. [9] It sets out the test: 43 Metropolitan Stores adopted a three‑stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. ... [10] See also Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 NSR (2d) 341, (NSCA). [11] The appellants argued that there are serious questions to be determined on judicial review. These include whether Deputy Chief McNeil and Ms. Smith have made decisions and whether the Nova Scotia Supreme Court has jurisdiction to review their decisions because the privacy rights of the individual appellants are at issue. They also include an interpretation of McNeil, supra to determine (1) whether the discipline records disclosed by Deputy Chief McNeil are the type of records that should be disclosed, (2) the process to be followed if a police officer disagrees with a proposed disclosure, and (3) whether they are to be disclosed in all cases in which a police officer is involved or on a case by case basis. [12] They argued that irreparable harm will occur if the stay is not granted because once the information is disclosed it cannot be undone, relying on O'Connor v Nova Scotia, [2001] NSJ No 90 and Reid v Halifax Regional School Board, [2006] NSJ No 101. [13] They argued on a balance of convenience that the privacy interests of the police officers would be harmed more if the stay is not granted than the public interest in the proper administration of justice will be harmed if the Charter rights of accused persons entitled to disclosure in connection with their upcoming trials are not complied with, suggesting such trials could be adjourned. [14] The first step of the test requires me to determine if there is a serious question to be tried. The threshold however is low, RJR - McDonald, supra, ¶ 54. I need not conduct a prolonged examination of the merits. [15] There is a question of whether the Supreme Court has jurisdiction to review the alleged decisions. It is unclear what part Deputy Chief McNeil and Ms. Smith will play in the judicial review proceeding as they are the alleged decision makers. McNeil, supra, will need to be interpreted in light of the facts. Minimal evidence is before me as the record, for purposes of the judicial review, is to be fixed when the Supreme Court proceeding resumes on May 11. Ms. Smith’s position is that she did not make a reviewable decision but gave legal advice. Not all of the details of Deputy Chief McNeil’s decision are known. The nature of the disciplinary breaches is unknown to me although counsel for the appellants suggest they are minor. Counsel for the appellants argued that there is ongoing disclosure by the police, however, the only evidence before me indicates the relevant discipline records have already been disclosed by Deputy Chief McNeil to the Crown. There is no evidence as to whether the Crown has disclosed the records to all affected accused persons. There are 11 criminal cases set for trial before June 15, 2009 where the respondents have determined that there is currently an obligation to disclose relevant disciplinary records involving three of the individual appellants. [16] On the material before me, which may be different from the material that will be before the Supreme Court on May 11, and taking into account the low threshold at this stage of the test, I am satisfied there are serious issues to be decided in connection with the judicial review. [17] At the second stage of the test I am to decide whether the appellants will suffer irreparable harm if I do not grant the interim stay they are seeking. It is only the appellants interests I am to consider at this stage, not those of the respondents or the public interest. Those are to be considered at the third stage, the balance of convenience, RJR-MacDonald, supra, ¶ 62. Irreparable harm refers to the nature of the harm, not its magnitude. [18] If the disclosure has already been made as the evidence indicates is the case with respect to Deputy Chief McNeil, granting the requested stay will not cause irreparable harm to the individual appellants. With respect to Ms. Smith, given that once the disclosure is made to the accused persons, it cannot be undone, there would be irreparable harm to the personal appellants if the stay is not granted. [19] At the third stage I am to determine which party will suffer greater harm from the granting or refusal of the interim stay. I am also to consider the public interest as interim relief involving challenges to the authority of a law enforcement agency, such as in this case, stands on a different footing than ordinary claims for such relief as between private litigants; Ainsley Financial Corp. v. Ontario Securities Commission (1993), 14 OR (3d) 280 at pp. 303-4, approved in RJR -MacDonald, ¶ 69. The interests of the public, which are served by the police and the Crown, must be taken into account and weighed in the balance, along with the interests of the private litigants. [20] The only evidence before me indicates Deputy Chief McNeil has already disclosed the relevant discipline records. Accordingly I am satisfied that there is nothing to be gained by granting a stay to prevent him from disclosing the records. Any harm has already been done. [21] I have no such evidence before me with respect to disclosure by Ms. Smith, whether she has already disclosed this information to all affected accused persons. Granting the stay with respect to Ms. Smith may prevent harm to the individual appellants but there is no evidence before me that they have suffered harm to date as a result of Justice Murphy refusing to grant a stay. [22] The granting of a stay on the other hand may have a negative effect on the ongoing criminal justice system in our jurisdiction. It could thwart an accused’s constitutional right to disclosure of all relevant information in order to make full answer and defence. It could delay matters coming to trial affecting the rights of the accused persons to be tried within a reasonable time pursuant to section 11(b) of the Charter. Whether such a delay would infringe or deny any accused person’s Charter rights is impossible for me to determine on the evidence before me. If it turned out that such delays were not justified, the granting of a stay could lead to indictments being quashed or withdrawn. This would not be in the public interest, for the public has an interest in ensuring law breakers are brought to trial, dealt with according to the law, and, at trial, treated fairly and justly; R v. Askov (1990), 59 CCC (3d) 449 (SCC). [23] Considering the lack of evidence of harm to the individual appellants since April 22 and the potential for the delay of criminal trials, I am satisfied the balance of convenience favours not granting the stay. [24] Accordingly, I deny the appellants motion for a stay. Hamilton, J.A.