RE FRIEDMANN AND ATTORNEY GENERAL FOR BRITISH COLUMBIA et al.

RE FRIEDMANN AND ATTORNEY GENERAL FOR BRITISH COLUMBIA et al.

British Columbia Supreme Court, Macdonell J. June 7, 1985.

Administrative law – Ombudsman – Power to investigate act done or omitted by authority with respect to matter of administration – Police conduct of criminal investigation and prosecution not matter of administration – Ombudsman Act, R.S.B.C. 1979, c. 306, s. 10.

The Ombudsman of British Columbia has the authority to investigate any decision, recommendation or act done or omitted by an authority with respect to a matter of administration. The Ombudsman sought to investigate the activities and procedures used by the Vancouver Police Board in the investigation and prose caution of an individual. On a petition (or judicial review to compel disclosure of information by the board, held, the petition should be dismissed.

The Municipal Police Board is an authority under the Ombudsman Act, and police officers are employees of the board. The actions of a police officer in investigating a crime are not acts in pursuance of provincial policy, but obligations implicit in the office of a police officer. They relate to matters within the jurisdiction of the Parliament of Canada, not the provincial government, so far as they relate to Criminal Code offences. Investigation of a crime is an obligation of the office of a police constable, and in carrying out his duties he is not accountable to the Municipal Police Board, providing he is acting within proper bounds. Thus, the Ombudsman is not entitled to conduct this investigation, as police criminal investigation is not a matter of administration.

Re B.C. Dev. Corp. et al. and Friedmann et al. (1984), 14 D.L.R. (4th) 129, [1984] 2 S.C.R. 447, [1985] 1 W.W.R. 193, 55 N.R. 298 sub nom. B.C. Dev. Corp. v. Ombudsman, apld.

Other cases referred to

Fisher v. Oldham Corp. (1930), 99 L.J.K.B. 569; Bruton v. Regina City Policemen’s Ass’n, Local 155, [1945] 3 D.L.R. 437, [1945] 2 W.W.R. 273; A.-G. New South Wales v. Perpetual Trustee Co., [1955] A.C. 457; Re Cardinal and Board of Com’rs of Police of City of Cornwall (1973), 42 D.L.R. (3d) 323, 2 O.R. (2d) 183; Re Nicholson and Haldimand-Norfolk Regional Board of Com’rs of Police (1978), 88 D.L.R. (3d) 671, [1979] 1 S.C.R, 311, 23 N.R. 410, 78 C.L.L.C. 14,181; Re Carpenter and Vancouver Police Board et al., (1985), 18 D.L.R. (4th) 585

Statutes referred to

Criminal Code
Ombudsman Act
, R.S.B.C. 1979, c. 306, s. 10
Police Act, R.S.B.C. 1979, c. 331, s. 19 (am. 1982, c. 62, s. 4)

Petition for judicial review to compel disclosure of information to the British Columbia Ombudsman,

I. G. Nathanson and F. S. Borowicz, for petitioner.
J. M. Giles, Q.C., and R. S. Anderson, for respondents.

MACDONELL J.:- Karl A. Friedmann, the Ombudsman, petitions to the court for:

1. A declaration that the Ombudsman Act, R.S.B.C. 1979, c. 306, requires the respondents to furnish to the Ombudsman any information and to produce to him any documents and things he may require relating to his investigation arising from the complaints of Norman Fox.

2. An order that the respondents, their officers, employees or agents forthwith produce to the petitioner all documents and things in their possession or control and furnish him with all information required by him relating to his investigation arising from the complaints of Norman Fox.

The investigation that the Ombudsman is undertaking and which, in effect, he wishes approved by the court is set out in para. 10 of the facts upon which the petition is based, as follows:

  1. Whether the actions and procedures used by the Vancouver Police Force in the investigation, arrest and prosecution of Mr. Fox were fair, just and reasonable;
  2. Whether the investigation, arrest anti prosecution of Mr. Fox was deliberately or negligently conducted by the Vancouver Police Force in an improper manlier or for an improper purpose;
  3. Whether the procedures used by the Vancouver Police Force in the investigation, arrest and prosecution of Mr. Fox were the standard procedures In use by the Vancouver Police Force at the time; whether there has been any change In the standard procedures since then; and, what procedures are In use at present;
  4. Whether the Chief Constable and the Vancouver Police Board acted properly In failing or refusing to Investigate fully Mr. Fox comp about the manner in which his investigation, arrest and prosecution was conducted by the Vancouver Police Force, and the adequacy of their reasons therefore; and
  5. Any other related matters which may arise in the course of the investigation.

Counsel at trial was good enough to define the term “prosecution”, as this gave the court some difficulty, and the position of the petitioner is that it means “actions and procedures used by the Vancouver Police Force prior to and after the arrest of Fox, which were directed towards bringing Fox to trial. It does not include any aspect of the proceedings at trial nor on appeal. Nor does it include any conduct of Crown Counsel.” The position taken by the petitioner is that the Ombudsman is entitled to make the investigation above set out under the Ombudsman Act as he has the right under the Act to investigate any decision, recommendation, act dune or omitted, or procedure used by an authority. The Act defines authority in the schedule to include a board which is, or the majority of the members of which are appointed by an Act, Minister, the Lieutenant-Governor in Council. The board in this case is the Municipal Police Board, established under s. 19 of the Police Act, R.S.B.C. 1979, c. 331. It comprises the mayor, one person appointed by counsel and three persons appointed by the Lieutenant-Governor in Council.

The Ombudsman Act includes in the definition of authority members and employees of the authority. Under the Police Act the chief constable and every constable and employee of the municipal police force is an employee of the board.

It is argued that the police officers involved in the Fox investigation are employees of the Municipal Police Board and that the Ombudsman is entitled to investigate their actions, as well as the actions of the board itself, as the Municipal Police Board and its employees come within the definition of authority. Under s. 10 of the Ombudsman Act the Ombudsman has the jurisdiction to investigate the acts done or omitted, and the procedure used by an authority that aggrieves a person, or may aggrieve a person, with respect to a matter of administration. It is argued that a matter of administration has been broadly interpreted by the Supreme Court of Canada in Re B.C. Dev. Corp. et al. and Friedmann et al. (1984), 14 D.L.R. (4th) 129 at p. 149, [1984] 2 S.C.R. 447, [1985] 1 W.W.R. 193 at p. 216, Dickson J. (as he then was) defined it as follows:

In my view, the phrase matter of administration encompasses everything by governmental authorities in the implementation of government policy. I would exclude only the activities of the Legislature and the courts from the Ombudsman’s scrutiny.

It is argued for the petitioner that as the investigation in question is neither of the activities of the Legislature nor of the courts, there is authority for the investigation contemplated.

The respondent, on the other hand, argues that although the Municipal Board is an authority under the Act, nevertheless the actions of the police constables of the municipality engaged in the enforcement of the criminal law are not subject to the Ombudsman’s scrutiny or investigation as the acts done or omitted were not “with respect to a matter of administration”. Alternatively, it is argued that enforcement and administration of the criminal law is administered by the Attorney-General and not by the police board and in carrying out a criminal investigation the constable is acting on behalf of the Attorney-General and not as an employee of the police board. The respondents’ third alternative argument is that the prosecution of crime is a federal responsibility and the investigation is an integral part of the prosecution. Accordingly, a provincial statute such as the Ombudsman Act cannot apply to investigate matters coming under federal jurisdiction. Finally, it is argued that a police officer’s function forms an integral part of the prosecutorial process and therefore the investigation is a court matter which is not reviewable as one of the exceptions spelled out in the judgment of Dickson J. in the B.C.D.C. case.

It is my opinion, following a review of the authoriti6s cited and the various Acts and the argument of counsel, that the Municipal Police Board is an authority under the Ombudsman Act and that police officers are employees of the Municipal Police Board and thus decisions and acts done or omitted and procedures used by them that may aggrieve a person are reviewable, provided that the subject-matter of the investigation is “with respect to a matter of administration”. The scheme of the Ombudsman Act is to provide a review or scrutiny of bureaucratic acts that heretofore were not subject to review: see Dickson J. at p. 140 D.L.R., p. 206 W.W.R., of the B.C.D.C. case:

In short, the powers granted to the Ombudsman allow him to address administrative problems that the courts, the legislature and the executive cannot effectively resolve.

Our Court of Appeal’s definition of a matter of administration was confirmed by the Supreme Court of Canada in the B.C.D.C. case, at p. 136 D.L.R., p. 202 W.W.R.:

The majority interpreted the phrase “a matter of administration” as relating to the implementation of government policy by the carrying out of the executive or management functions of government. They considered that “the decision and the conduct leading up to it clearly involved the exercise of a government power relating to a matter of administration'”. Since the complaint alleged that B.C.D.C., in fulfilling its public function in accordance with the objectives prescribed by the Develop Corporation Act, had acted unjustly and in bad faith, It followed that the Ombudsman had jurisdiction to investigate.

The Police Act, amongst other things, provides procedure for citizens with a complaint against a municipal constable or chief constable to have the complaint investigated by a “discipline authority” as defined in the Police Act. In fulfilling the investigative role in the case of a complaint against a municipal constable or the chief constable, the discipline authority, in my view, carries out an administrative function as it is carrying out the general policy of investigating citizens’ complaints expressed in the statute. There are, no doubt, other administrative functions carried out by the board and its employees.

If all that was asked of me was whether the administrative acts of the police board and its employees are reviewable by the Ombudsman, my task would be simple as I am of the view that they clearly are under the Ombudsman Act. However, that is not what is being sought, although it is necessary to make that determination first. What is being sought is a declaration that the Ombudsman can investigate the actual investigation by the police of a crime on the basis that the police investigation of a crime is a matter of administration. Although the original complaint of Fox was phrased in a way that might be construed as a complaint of a disciplinary nature under the Police Act, what is now sought is a wide-ranging inquiry by the Ombudsman into the actual police investigation itself of Fox and his subsequent arrest and charge. In order for those matters to be reviewable by the Ombudsman, it will have to be determined whether the police conducting an investigation of a crime are carrying out an administrative role, or whether they fulfill a separate function altogether as police officers which may not be administrative in nature at all. It is not sufficient, in my view, to say that because a police officer is an employee of the board, that of necessity makes his acts reviewable in carrying out a criminal investigation. It is only those acts of the employee of the authority that are administrative in nature which are reviewable.

The answer to the problem may be found in an examination of the historical role of the police in a criminal investigation and in determining what duties and obligations traditionally attach to the “office of police constable”, from where his authority originates, and to whom he is accountable. The office of police constable has been judicially considered in a number of cases over the years. Fisher v, Oldham Corp. (1930), 99 L.J.K.B. 569, dealt with an action for false imprisonment and it was held that the corporation was not liable inasmuch as the police, in effecting the arrest and detention, were not acting as the servants or agents of the corporation but were fulfilling their duties as public servants and officers of the Crown [at pp. 571-2]:

I must now say a few words on the common law status of police officers. Much of the relevant history of constables will be found in Lambard’s Duties of Constables, p. 6; 2 Hawkins’ Pleas of the Crown, c. 10, e. 33, and Blackstone, vol. 1, pp. 356 and 357. Some of the errors of Blackstone are well discussed by Professor 1-1. 13. Simpson in the English Historical Review of October, 1905. 1 may also refer to Halsbury’s Laws of England, vol. 22, pp. 462 et seq. It is plain that the modern system of police forces has slowly evolved from the succession of officers of police who have, at different times and under various titles, maintained the internal peace of the kingdom. In the reign of Char II the practice of swearing in constables before justices of the peace was expressly sanctioned by statute, Professor Simpson well observes in the above-mentioned article as (allows: “Perhaps the administration of the Oath to Constables by Justices of the Peace may be fairly considered as the characteristic mark of the final subordination of local to central government in rural districts and of the conversion of a local administrative officer into a ministerial officer of the Crown.” What is the common law view of the matter as shown by the legal decisions and authorities? It is clear from Mackalley’s Case (9 Co. Rep., at p. 68), that a constable, watchman or the like person was regarded as a servant or minister of the King. In Coomber v. Berks Justices, Lord Blackburn said (53 L.J.Q.B., at p. 242; 9 App. Gas., at p.67): “I do not think it can be disputed that the administration of justice, both criminal and civil, s the preservation of order and prevention of crime by means of what is now called police, are amongst the most Important functions of Government nor that by the constitution of this country these functions do, of common right, belong to the Crown.” He further said (53 L.J.Q.B., at p. 244; 9 App. Cas., at p. 71); “The general Government administers law and justice, and keeps order; but, It necessarily duos it In different localities separately…. It is a purpose of the Imperial Government, carried out In a particular locality, but not the less a purpose of the imperial Government,” The whole ratio decidendi of Coomber’s Case was that the police were the servants of the Crown and not the local authority,

A useful illustration of the case is found at p. 573:

I may well take an illustration at this point. Suppose that a police officer arrested a man far a serious felony. Suppose, too, that the watch committee of the borough at once passed a resolution directing that the felon should be released? Of what value would such a resolution bet Not only would it be the plain duty of the police officer to disregard the resolution, but It would also be the duty of the chief constable to consider whether an Information should not at once be laid against the members of the watch committee for a conspiracy to obstruct the course of criminal justice.

See Bruton v. Regina City Policemen’s Ass’n, Local No. 155, [1945] 3 D.L.R. 437, [1945] 2 W.W.R. 273 (Sask. C.A.), where the headnote [W.W.R.] reads, in part:

The fact that under The City Act, 11.5.8., 1940, ch. 126, city police officers and constables are appointed by the board of police commissioners does not make them the servants or agents of that board or of the city; they are appointed to perform a public service in which the city has no corporate Interest; their duties are derived from the law and not from the city or the police commissioners; and in performing those duties they act not in the interests of the city but of the public at largeā€¦

See also the headnote in A.-G. New South Wales v. Perpetual Trustee Co., [1955) A.C. 457:

There is a fundamental difference between the domestic relation of servant and master, upon which the action per quod servitium amisit rests, and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original, not delegated, and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights Independently of contract. … It would not be in accord with modern notions or with the realities of human relationships today to extend the action to the loss of service of one who, if he can be called a servant at all, is the holder of an office which has for centuries been regarded as a public office.

Re Cardinal and Board of Com’rs of Police of City of Cornwall (1973), 42 D.L.R. (3d) 323 at p. 327, 2 O.R. (2d) 183, is to the same effect. Approval of the principle is found in the judgment of Laskin C.J.C. in Re Nicholson and Halidmand-Norfolk Regional Board of Com’rs of Police (1978), 88 D.L.R. (3d) 671 at pp. 676-7, [1979] 1 S.C.R. 311, 23 N.R. 410:

Considerable emphasis was placed by Arnup, J.A., on the position of a constable at common law as an office holder at pleasure who could claim no procedural protection against peremptory removal from office. We are not concerned in this case with any involvement of the Crown, with the holding of an office under the Crown, assuming that this would make any difference today. it was, however, contended in this Court, as in the Courts below, that the words In s. 27, “but nothing herein affects the authority of a board or council”, point to a preservation of some pre-existing authority as contrasted with a grant of power, and hence, it was not only proper but necessary to examine the position of a constable at common law, I can See some value in this as background research, but the scheme of the Police Act and the involvement of statutory agencies, whether boards of commissioners of police or municipal councils, has created an entirely different frame of reference, and what is preserved of the common law is merely the fact that a constable may still be considered as the holder of an office and not simply an employee of a board or of a municipality which, for many purposes, he certainly is.

Mr. Justice Anderson likewise speaks of the dual role of a police constable in Re Carpenter and Vancouver Police Board et al., an as yet unreported decision dated May 22, 1985, Vancouver. Registry No. CA 1096/83, at p. 9 [now reported 18 D.L,.R. (4th) 85 at pp. 597-8], where he said:

I also note that while a police officer in an “employee of the Board” a police officer continues to hold the “office of police constable”,

Thus it will be seen that a police officer is not an ’employee” in the ordinary sense of that word, lie by virtue of his “office” has, to a certain degree, a measure of independence. He must conduct himself “without favour, affection, malice or ill will”. He must in accordance with the regulations “maintain a high standard of discipline” (s. 7(1)) and so conduct himself that he does not offend against any of the “disciplinary defaults” described in Appendix A. On the other hand, he cannot be dismissed from “office” except in strict accordance with the regulations and upon proof that he has been guilty of a “disciplinary default” beyond a reasonable doubt,

I conclude from the various authorities to which I have referred hat a police officer is more than simply an employee of a police board. When performing his professional duties he performs them in his “office of police constable”. The actions of a police officer in investigating a crime are not acts in pursuance of provincial policy, but obligations implicit in the “office of a police office?” and which relate to matters within the jurisdiction of the Parliament of Canada, not the provincial government, so far as they relate to Criminal Code offences, as in this case. Investigation of the crime itself is an obligation of the office of a police constable and in carrying out his duties he is not accountable to the Municipal Police Board nor, for that matter, to the Attorney-General, providing he is acting within proper bounds. I hold that the ombudsman is not entitled to conduct the investigation that he seeks in the petition, as what he wishes to investigate does not, in my view, come within his scope of authority provided in the Ombudsman Act as a matter of administration.

The conclusion I have reached does not mean that Fox is without a remedy, as he has a lawsuit pending against the very officers whom the Ombudsman wishes to investigate in which all the circumstances of his at-rest and charge can, and no doubt will be, thoroughly canvassed. If the allegations are proved, he will be entitled to damages from them for any wrongful acts that the court might find.

The petition is accordingly dismissed with costs,

Petition dismissed.

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