Sep 28, 2020

When there is a public outcry about extremely inappropriate behaviour alleged against a practitioner, the regulator often feels compelled to reassure the public that such conduct is not acceptable. However, those public statements can then be used as ostensible proof of prejudgment when the regulator addresses the concerns through its investigation and discipline process. That is what occurred in Calandrini v. Canada (Attorney General), 2018 FC 52. The conduct in issue related to reported acts of nudity, sexual harassment and even assault by an RMCP police officer towards his male colleagues. When the media picked up the story, the Deputy Commissioner of the RCMP said:

When this came to our attention, we were appalled at what the allegations were. I found it hard to believe that in this day and age that this kind of behaviour would take place in our organization or anywhere else. It is completely unacceptable behaviour. It is abhorrent. The kind of behaviour that was alleged is completely in opposition to our core values.

The Court applied the following test as to whether these comments created an appearance of bias:

To find that discretion has been fettered, the facts before the Court must give rise to a reasonable apprehension that the decision-maker treated another individual’s views as binding or conclusive, without the need to consider any other factors or to conduct an independent analysis.

The issue was complicated by the fact that the concerns had already been addressed informally. That informal resolution was then subject to review. During that review process the media raised concerns about the case. The officer conducting the review referred the matter to a discipline hearing. However, in reviewing the entire file (including the steps taken before the media outcry, the notes by the screening person indicating that they did not discuss the matter with the Commissioner and the documentation about the processing of the concerns), the Court was satisfied that there was no fettering of discretion despite the comments made by the Commissioner.