Statutory Conflict: Lévis (City) v Fraternité des policiers de Lévis Inc

On December 29, 2000, Danny Belleau, a municipal police officer in Quebec, had a violent argument with his spouse. A subsequent search of his house found unregistered guns, and breaching a court order, Belleau pled guilty to several hybrid criminal offences.

The city dismissed him from his job as a result, and the case bounced back and forth up to the Supreme Court of Canada (“SCC”). The police union filed a grievance, and an arbitrator reinstated Belleau. The Superior Court reversed that decision, and then the Court of Appeal overturned the Superior Court’s decision. The SCC, unanimous in the result, agreed that the officer had been properly dismissed (see Lévis (City) v Fraternité des policiers de Lévis Inc, 2007 SCC 14).

Background

The root of much of this contention were the apparently conflicting laws under which municipal police officers in Quebec operate. Under the Cities and Towns Act, RSQ, c C-19 [CTA], which governs the employment of all city employees, employees must be dismissed after being convicted of hybrid or indictable offences. But under the Police Act, RSQ, c P-13.1, which governs both municipal and provincial officers, there are certain circumstances where officers convicted of hybrid offences may keep their jobs.

So the issues were which Act applied and, if the Police Act applied, whether the circumstances allowed Belleau to keep his job. The SCC disagreed both on how to resolve this apparent conflict, and also on the appropriate standard of review when a labour arbitrator examines such conflicts, but agreed that Belleau should lose his job. Jodi Martin’s excellent post from yesterday addresses in detail the standards of review issues.

The SCC Decision

McLachlin C.J, and Bastarache, Binnie and Charron JJ. formed the majority on this seven-member bench. On the issues themselves, the majority found that there was in fact a conflict between the Police Act and the CTA, that the Police Act should prevail, and that it dictated the officer be dismissed. They held that since the CTA implicitly forbade what the Police Act explicitly allowed (possible excuse of hybrid convictions), there is an unavoidable conflict. The way to resolve this conflict was to look toward legislative intent. The Police Act was passed after the CTA, and there was no evidence at all that the legislature intended it only to refer to provincial police. Further, it had more specific provisions, and to allow the CTA to operate would be to defeat entirely the purpose of those provisions.

Analysis

This is a noticeable move away from the established doctrine of construing statutes so as to avoid conflict if at all possible. Fish and Deschamps JJ. dissented on this point and stated that the historical test for the conflict of federal/provincial statutes is: “a ‘conflict’ is defined as a situation in which one enactment says ‘yes’ and the other says ‘no’; ‘the same citizens are being told to do inconsistent things’; compliance with one is defiance of the other.” And they found this test is even more applicable when judging the conflict of two provincial statutes than when judging the conflict of federal/provincial statutes. In the former case, a single legislature is enacting both, and it is assumed to be aware of any potential conflicts.

Since Belleau could still have been a police officer with the provincial police, while remaining barred from municipal employment, the two statutes should not have been considered conflicting. The result would be that both are applicable, and therefore Belleau should be dismissed without even looking to the exceptions in the Police Act.

That is certainly convincing reasoning, but Fish and Deschamps JJ. are being somewhat disingenuous when citing the above test. Its source is Multiple Access Ltd v McCutcheon, [1982] 2 SCR 161, but the SCC subsequently modified that test in Bank of Montreal v Hall, [1990] 1 SCR 121, so that it operated very similarly to the majority reasoning in this case. The test for federal/provincial paramountcy is now that, where the purpose of one piece of legislation is entirely defeated by another; there is a conflict even if it is technically possible to comply with both.

Despite differing on the conflict issue, the judges were unanimous that it was unreasonable for the arbitrator to find that this was an appropriate case to allow the officer to keep his job. It was not appropriate to apply general employment law principals and ignore that the dispute arises in the context of police employment. This particular offence was a case of domestic violence, one which often arises in the course of an officer’s duties. Being guilty of that offence could seriously compromise Belleau’s ability to perform on the job. Further, Belleau deliberately shirked a court undertaking and this “suggests a lack of respect for the judicial system of which he forms an integral part.” Indeed.