NATIVE PEOPLES |
Ross v. Mohawk Council of Kanesatake
T-1915-01
2003 FCT 531, Heneghan J.
29/4/03
29 pp.
Judicial review of Mohawk Council of Kanesatake's (respondent) decision terminating applicant's employment as Assistant Chief of Police and Acting Chief of Police--Council meeting regarding decision to terminate applicant's employment by respondent held on September 28, 2001, focused on applicant and manner in which applicant discharged policing activities--Applicant not present at meeting and meeting deteriorated into mayhem--Council acted without reference to Police Commission and did not consider alternative to dismissal--No formal recorded vote and Council voted in presence of complaining community members--Whether breach of procedural fairness arising from manner in which respondent Council reached decision--Broad issue including subsidiary issues of whether respondent acted in excess of jurisdiction by failing to involve Police Commission in decision, and whether applicant office holder at pleasure, entitled to any procedural fairness--Basic elements of procedural fairness including right to be heard and right to impartial hearing, as mentioned in Therrien (Re), [2001] 2 S.C.R. 3--In case at bar, applicant not advised issue of continued employment would be considered by respondent in meeting held on September 28, 2001--Applicant entitled to procedural fairness relating to termination of employment-- Regardless of whether applicant considered permanent employee, dismissible for cause, or office holder at pleasure, minimal duty of fairness applies--Applicant at least entitled to minimal elements of procedural fairness--Whether observance of procedural fairness suspended as result of perceived emergency--According to Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643, right to procedural fairness may be suspended in emergency situation but not eliminated--Respected by provision of opportunity to be heard after emergency situation relieved, which did not happen herein--Evidence submitted raising considerable doubt about impartiality of decision-maker--Council meeting overtaken by Robert Gabriel and associates--Respondent has not provided agenda or any formal record of what happened at meeting--Meeting commandeered by community members --Decision not made in fair and impartial manner-- Furthermore, respondent acted independently of Police Commission--In present case, 1999 agreement providing for establishment of Commission and also providing respondent shall be responsible for recruitment and selection of members of Police Force, and Police Commission shall be responsible for all decisions relating to hiring and dismissal--Council did not have option of ignoring Commission when deciding to terminate applicant's employment--In case at bar, respondent side-stepped Commission--Application allowed.