Administrative law – Decisions of administrative tribunals – Police Commission – Investigations – Police – Professional misconduct or conduct unbecoming – Disciplinary proceedings – Penalties and suspensions – Criminal charges – Evidence – Disclosure – Hearings – Conduct of hearings – Judicial review – Compliance with legislation – Standard of review – Reasonableness simpliciter
MacNeil v. Edmonton (City),  A.J. No. 1309, Alberta Court of Queen’s Bench, November 26, 2009, E.A. Marshall J.
MacNeil was arrested and charged on August 13, 2007 with three offences under the Criminal Code including obstructing justice. The charges arose from MacNeil’s alleged actions in interfering with the charging of a family member with impaired driving. At the time MacNeil was charged, he was notified that he was relieved from his police duties without pay under Section 8 of the Police Service Regulation, Alta. Reg. 356/1990. A police chief’s authority to relieve an officer from duty without pay cannot extend beyond 30 days without that direction being confirmed by the Police Commission under Section 8(11) of the Regulation. On September 10, 2007, a hearing took place before the Commission and the decision to relieve MacNeil from duty without pay was confirmed. A number of extensions of time of this decision were also granted. At the time of the hearing of the application, MacNeil had not yet been formally charged with a breach of the Regulation. As a result of the criminal charges, however, MacNeil subsequently received disclosure of information respecting the Crown’s case. MacNeil then applied for a rehearing before the Commission on the basis that there was additional information arising from the disclosure which should have been placed before the Commission. A second confirmation hearing took place on March 25, 2009 and the Commission ultimately confirmed its earlier decision to suspend MacNeil without pay.
MacNeil applied to the Court requesting a declaration of nullity, an order prohibiting the chief from further suspension and an order in the nature of mandamus requiring the chief to restore him to active duty with full pay from the period since the suspension.
After reviewing the legislation, the Court noted that there are essentially three stages through which a complaint investigation proceeds. Complaints are directed to the chief of police. Unless judged to be frivolous, vexatious or made in bad faith, the receipt of a complaint leads to an investigation. An investigation may then continue for a period of up to six months but then requires the Commission to extend that period. Once an investigation is complete, the subject may either be charged or the matter dropped. The legislation further allows a chief of police to suspend a police officer at any time during the investigation/charge/hearing procedure provided the Chief “…on reasonable grounds, suspects…the officer has engaged in prohibited conduct”.
The Court rejected MacNeil’s argument that he should have received disclosure of all information when the investigation was commenced. The Court noted that to interpret the legislation in that manner would result in an absurdity as in some instances disclosure at the commencement of an investigation would sabotage the very objective of the investigation, particularly in matters involving police corruption. The Court concluded that the legislation required that disclosure must occur some time after an officer is charged but prior to any hearing under the Police Act.
In reviewing the decision of the Commission, the Court was to apply a standard of reasonableness. In this case, the time extensions granted by the Commission did not result in any breach of the principles of natural justice. The material evidence which was before the Commission supported the decision to suspend MacNeil without pay. There was no requirement for the Commission to give reasons for its interim decision. In the result, MacNeil’s application was dismissed
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