Name of Case: City of Lévis v. Fraternité des policiers de Lévis Inc., et al.

Court appealed from and date of judgment: Judgment of the Quebec Court of Appeal, dated June 20, 2005

Supreme Court Panel: Justice Bastarache, Chief Justice McLachlin and Justices Binnie and Charron, concurring; Justices Deschamps and Fish, jointly concurring, and Justice Abella, concurring.

Facts: On June 18, 2001, the City of Lévis, Quebec dismissed Danny Belleau, a 15-year veteran firefighter/police officer, after he was convicted, following a guilty plea, of six criminal acts including assault, uttering threats of death/serious bodily harm, unsafe storage of a firearm, resisting arrest, and breach of recognizance. The union, La Fraternité des policiers-pompiers de Lévis, filed a grievance against the dismissal, arguing that the City had violated the collective agreement. The City took the position that it had no choice but to dismiss the grievor according to s.116 of the Cities and Towns Act. That section states: "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."

After a lengthy hearing, Arbitrator Gabriel Côté allowed the grievance and ordered the City to reinstate Belleau to his post as firefighter/police officer. Côté ruled that s.116 of the Cities and Towns Act was inapplicable to a municipal police officer because it was supplanted by s.119 of the Police Act, which provides that any police officer convicted of an indictable offence must be automatically dismissed  "unless the police officer or special constable shows that specific circumstances justify another sanction." Côté observed that Belleau was not on duty as a police officer when the attack occurred, nor did the victim suffer any bodily harm. Furthermore, Côté accepted the union's evidence that Belleau suffered from alcoholism, was extremely intoxicated when the assaults and breach-of-release conditions occurred, and was deeply stressed by sexual abuse allegations made by his spouse's 10-year old son against his own 13-year old son. Moreover, Belleau had obtained psychological and alcoholism treatment since his conviction, Côté noted. Taking into account Belleau's spotless 15-year service record, Côté held that Belleau had established "special circumstances" justifying the imposition of a lesser penalty. Although dismissal was not justified, Côté concluded, Belleau's actions warranted a severe sanction. Therefore, he substituted for the discharge an unpaid suspension from the date of dismissal to the date of his award.
 
Case History: The City applied for judicial review of Côté's decision, arguing that Côté had no jurisdiction to rule that s.119 of the Police Act rendered s.116 of the Cities and Towns Act inapplicable to a municipal police officer, which was a question only the courts could answer. Alternatively, the City argued that, even if s.119 of the Police Act applied, the arbitrator misapprehended the evidence in determining whether "special circumstances" existed.

The union argued that, under the Quebec Labour Code and the collective agreement, the arbitrator had a wide jurisdiction to rule on the appropriateness of an employee's dismissal. Unless the arbitrator made patently unreasonable errors of fact or law, the union maintained, the award should stand. In this case, the union argued, Côté's decision was well reasoned and supported by the evidence, and was therefore unassailable. 

Judge Jean Lemelin of the Quebec Superior Court allowed the City's application and quashed Côté's award, affirming Belleau's dismissal.

Lemelin agreed with the union that the award should be quashed only if it were patently unreasonable, and that Côté had not made any patently unreasonable errors of fact that would justify the intervention of the courts. In addition, Lemelin held that Côté had jurisdiction to consider whether the Cities and Towns Act applied, according to s.100.12 of the Quebec Labour Code, which grants arbitrators the power to "interpret and apply any Act or regulation to the extent necessary to settle a grievance."

However, Lemelin ruled, Côté exceeded his jurisdiction by ruling that s.119 of the Police Act ousted the application of s.116 of the Cities and Towns Act. He explained: "In declaring that s.116 of the Cities and Towns Act became 'necessarily inoperative,' the arbitrator goes much further than interpreting the wording with regard to the facts of the case before him. He comes to a conclusion about the general applicability of s.116 of the Cities and Towns Act to a municipal police officer" [translation]. On this issue, Lemelin wrote, the arbitrator's ruling had to be both reasonable and consistent with the letter of the law. However, Lemelin observed, nothing in either statute specifically excluded the application of the Cities and Towns Act to a municipal police officer. At the time the new Police Act was enacted in 2000, Lemelin pointed out, the Legislature amended ss.71 and 72 of the Cities and Towns Act, but no other sections. Therefore, he reasoned, the Legislature could not have intended that s.119 of the Police Act oust the application of s.116 of the Cities and Towns Act to a municipal police officer.

Lemelin concluded: "It follows … that the arbitrator was seriously mistaken when he declared that s.119 of the Police Act had the effect of rendering s.116 of the Cities and Towns Act inoperable" [translation], adding: "In deciding that s.116 of the Cities and Towns Act did not apply, the arbitrator swept aside a ground for dismissal that the Legislature created and wanted cities and towns to be able to continue to invoke. By doing so, he substituted himself for the Legislature and amended the law. This result is clearly unreasonable and contrary to law" [translation].

Finally, although Lemelin agreed with the union that the arbitrator was entitled to consider a range of mitigating factors in applying s.119 of the Police Act, he ruled that Côté had given too much weight to the medical evidence. Specifically, the union's medical expert could not conclusively state that Belleau suffered from alcoholism at the time he committed the criminal acts. "The expert medical evidence of a medical problem of alcoholism is therefore non-existent" [translation], Lemelin determined. Accordingly, he held, Côté had committed a patently unreasonable error in considering alcoholism as a special mitigating circumstance. Moreover, while accepting that Belleau was psychologically disturbed at the time of the incidents, Lemelin concluded that the question of whether special circumstances justified the substitution of a lesser penalty under s.119 of the Police Act was irrelevant in light of his ruling that s.116 of the Cities and Towns Act applied.

In short, Lemelin held that Belleau was properly dismissed under s.116 of the Cities and Towns Act and that his grievance should have been disallowed. Furthermore, Lemelin ruled, Côté's error regarding the expert evidence of alcoholism would have justified quashing his award. In the result, Lemelin quashed Côté's decision and affirmed Belleau's dismissal.  Belleau appealed.

On June 20, 2005, the Quebec Court of Appeal reversed the Quebec Superior Court decision. "Considering all the factors", Justice Marie-France Bich concluded, "the patently unreasonable standard applies to different aspects of arbitrator Côté's decision [translation]."  Reviewing the award on that basis, Bich determined, Côté's decision should stand. The arbitrator's review of the facts did not entirely hinge on whether Belleau suffered from alcoholism, though it did take into account that issue. The more important factor in the award's analysis was rather Belleau's underlying "family drama", and that issue might alone have supported the arbitrator's decision, even without consideration of alcoholism. Côté's award was thus not "patently unreasonable", even if the Superior Court correctly considered some of the arbitrator's conclusions about Belleau's alleged alcoholism to be erroneous. 

As for Côté's decision that s.119 of the Police Act trumped s.116 of the Cities and Towns Act, the test should be whether the decision was "simply unreasonable." Applying that standard, the Court found that the decision was reasonable. Considering the legislative history, the Court observed that the legislature had changed certain provisions of the Cities and Towns Act which mentioned the Police Act explicitly, but "it did not modify s.116". Because s.116 and s.119 were in conflict, and the legislative will as to which would prevail was unclear, "the new law [i.e., s.119] overrides the old one [s.116], [especially as] the new law is a particular law and the old law a general law or, at the very least, more general [translation]." The City appealed to the Supreme Court of Canada.

Issue(s): The issues on appeal to the Supreme Court of Canada included: Whether s.116 of the Cities and Towns Act and s.119 of the Police Act were inconsistent with respect to the dismissal, and, if so, which provision takes precedence? What standard of review applies to assessment of this inconsistency and to the arbitrator's interpretation of the words "specific circumstances" in s.119 of the Police Act?  Whether the arbitrator's exercise of discretion or the measure of discretion granted by the words "specific circumstances" was patently unreasonable, unreasonable or incorrect?
 
Supreme Court's decision (7-0): The appeal was allowed.

Reasons: A seven-member panel of the Supreme Court of Canada unanimously ruled that the considerations on which the arbitrator had based his decision that Belleau was entitled to a more lenient sanction did not constitute "specific circumstances" of the sort envisaged by s.119 and reinstated the officer's dismissal. Although two justices disagreed in part with regard to the interplay between s.119 and s.116(6) and a third disagreed as to the applicable standard of review, they all concurred in the outcome.

Writing the decision of the majority of the Court, Justice Michel Bastarache agreed with the finding of the arbitrator and of the Court of Appeal that s.119 of the Police Act and s.116 of the Cities and Towns Act were in a conflict that could not be reconciled, and that s.119 should prevail.

Justice Bastarache considered that there was clearly a conflict between the two provisions, because "[s]ection 119 ... 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) ... 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."

As to how this conflict between the two statutes should be resolved, Bastarache noted that "[w]here 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." While he emphasized that neither presumption is absolute and both may be rebutted if there is evidence of a different legislative intent, Bastarache found that both presumptions applied in the present case. Section 116 had existed in some form in Cities and Towns legislation since 1922, while the new Police Act that contained s.119 was legislated only in 2000. Moreover, Bastarache found that the legislative debates in 2000 with regard to the second paragraph of s.119 left no doubt that "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." He concluded that, "[a]s the more recent and more specific provision", s.119 should take precedence over s.116(6).

Turning to the key issue as to whether Belleau was in fact entitled to invoke the "specific circumstances" exception in s.119, Bastarache began by noting that "[a]n initial problem with the arbitrator's decision is that he equated his jurisdiction under s.119, para. 2 [Police Act] to the jurisdiction he would normally enjoy under [the Quebec Labour Code].... Under s.119, para. 2 [Police Act], 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."

Bastarache acknowledged that, "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." Therefore, he held, "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."

However, Bastarache determined that "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.... [T]he 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. Furthermore, 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."

Bastarache considered that "[m]ore 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." While the arbitrator had regarded this breach as less grave because Belleau's conduct on December 29 and 30 had formed a continuum during which he was not his usual self, Bastarache observed, "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.... 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."

Bastarache concluded that "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.... 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.... [P]ublic 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.... [T]he arbitrator failed to take into account the gravity of the offences committed by Belleau and the effect that they would have on public confidence."

Justice Bastarache therefore ruled on behalf of the majority of the Court that "it was unreasonable for the arbitrator to conclude that the specific circumstances raised by Belleau were sufficient to satisfy the s.119 [Police Act] exception," allowed the appeal and reinstated the penalty of dismissal.

Lancaster Reference: For analysis of the Supreme Court's decision, see Lancaster's Police Employment Law Bulletin, May 4, 2007, Issue No. 9.

Date of the Supreme Court's decision: March 22, 2007.