Fryingpan, who was allegedly assaulted by a police officer, successfully applied to quash the decision of the Edmonton Police Commission (the “Commission”) to hold his complaint about the officer’s conduct in abeyance and for a direction that the complaint be reviewed pursuant to s.46(3) of the Police Act R.S.A. 2000,CP-17

Administrative law – Police – Police Complaint Commissioner – Procedural fairness – Judicial review – Bias – Compliance with legislation – Evidence – Standard of review – Correctness

Fryingpan v. Edmonton (City) Police Commissions, [2004] A.J. No. 225, Alberta Court of Queen’s Bench, February 25, 2004, Murray J.

In October 2002, Fryingpan’s mother filed a complaint that Michael Wasylyshen (“Wasylyshen”) had assaulted her son. The complaint was then referred to the Chief of Police, who happened to be Wasylyshen’s father.

The following process was explained to Fryinpan’s mother: a Detective would be appointed to investigate the complaint of violence, and after the investigation the results would be referred to the Chief Crown Prosecutor who would advise the Chief of Police as to whether any charges should be laid against the member. The Chief of Police would then review his material and advise Ms. Fryingpan as to whether any criminal charges would be laid or any disciplinary action taken.

Ms. Fryingpan’s counsel wrote to Chief Wasylyshen explaining that because the complaint was against his son, the Chief should refer it to the Commission with a request that it be investigated by another police service.

Ms. Fryingpan’s counsel was advised that the matter would not be referred out to another police service but would be handled internally by an Acting Chief for the purposes of the complaint. Ms. Fryinpan’s counsel objected to this course of action and made a complaint against the Commission that the failure to refer the complaint to another police service constituted a breach of the Police Service Regulation on the grounds of discreditable conduct and neglect of duty.

In light of this complaint, the Public Complaints Monitor of the Commission advised Fryingpan that the complaint against the Chief would be held in abeyance pending an ongoing investigation of the violence complaint against his son. Counsel for Fryingpan objected to this step, to no avail.

A similar motion was then passed by the Commission, at a closed meeting, to hold the complaint against the Chief in abeyance pending the decision of Edmonton Police Services regarding criminal charges against his son.

Later, a similar motion was passed to hold the complaint in abeyance pending the outcome of the Crown’s review.

The Court reviewed the provisions of the Police Act applicable to the complaint against Wasylyshen and stated:

It is mandatory that the Commission review the complaint and formulate its opinion with respect to the actions of Chief Wasylyshen as above‑stated. Counsel agree that the role of the Commission at this stage of the procedure when considering the complaint is not to determine its merits or the merits of the Chief’s response, but rather is more akin to the assessment a court would make on a preliminary inquiry. In the case of Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services) (2002), 61 O.R. 649, Weiler, J.A. described the Commission’s role at this stage as a statutory screening function. As pointed out by His Lordship, the Commission will not be involved in weighing of evidence to determine its reliability. The Commission is acting as a gatekeeper and must not assess credibility, weigh evidence, or find facts.

The Commission, when reviewing the complaint of the Applicant against Chief Wasylyshen, needs only to have evidence before it which “may” constitute neglect of duty or discreditable conduct as described in the regulations.

Clear and convincing” evidence is not required. The Commission must remember that in arriving at its opinion they are not entitled to assess credibility of the parties, weigh the evidence, or find facts. Rather, their role is limited to deciding whether or not, given the complaint, the actions of Chief Wasylyshen may constitute behaviour as stated in s. 46(2)(b). If they come to that conclusion, then the Commission is obliged to request the Minister to direct another police service to investigate the complaint against Chief Wasylyshen. On the other hand, if they do not form that opinion, then they will refuse to do so. (paras. 12 & 13)

The Commission argued that placing the complaint against the Chief of Police in abeyance was a procedural matter. Fryingpan countered by arguing that the Act did not expressly allow for a complaint to be placed in abeyance, and doing so therefore constituted an action beyond the jurisdiction of the Commission, or that it was patently unreasonable.

The parties agreed that the applicable standard of review was correctness. The Court held that the decision to place the matter in abeyance was patently unreasonable, given that the outcome of the complaint against Michael Wasylyshen was not relevant to the decision about Chief Washylyshen’ s conduct in handling that complaint. Seven of the eight requirements for mandamus were held to be met, and the Board was directed to conduct the review of Chief Wasylyshen’s conduct as soon as practicable.

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