Administrative law – Police – Police Complaint Commissioner – Adjudication – Procedural fairness – Public hearings – Conduct of hearings – Rules of evidence – Judicial review – Appeals – Parties – Standing – Compliance with legislation
Berg v. British Columbia (Police Complaint Commissioner),  B.C.J. No. 1027, British Columbia Court of Appeal, May 9, 2006, Finch C.J.B.C., Rowles and Mackenzie JJ.A.
The Complainant was the sister of Jeffrey Berg. Mr. Berg died in October 2000 as the result of injuries sustained while being detained by Const. Bruce-Thomas. The Complainant filed a complaint under the Police Act, R.S.B.C. 1996, c.367, alleging excessive force by the police officer. The Police Complaints Commissioner appointed an adjudicator to conduct a public hearing into the police officer’s conduct. The adjudicator held that it had not been proven that the officer had used unnecessary force on the person of Jeffrey Berg. The Complainant appealed this decision.
The Complainant appealed the adjudicator’s decision on a number of bases including denial of her statutory and common law rights to participate in the evidentiary phase of the hearing and that the adjudicator’s decision was wrong and should be set aside.
The Court of Appeal dismissed the Complainant’s appeal. The Court held that there was a clear intent on the Legislature’s part to deny complainants a right to lead evidence or cross-examine witnesses. The Act granted police officers greater rights of participation during the pre-hearing process and the differing scope of participation between police officers and complainants reflected the fact that it is the police officer’s legal interests at stake. Given that the Complainant had no right to participate in the evidentiary phase of the hearing, she did not have a right to participate in the preparation of the agreed Statement of Facts upon which the decision was based. The Court held that the Complainant had no standing to appeal on the ground that the adjudicator erred in law by finding that the officer did not commit the disciplinary default.
In the result, the Complainant’s appeal was dismissed.
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