Administrative law – Decisions of administrative tribunals – Law Enforcement Review Board – Police – Disciplinary proceedings – Professional governance and discipline – Investigations – Reporting requirements – Judicial review – Jurisdiction – Standard of review – Correctness – Reasonableness simpliciter – Failure to provide reasons
Mitzel v. Alberta (Law Enforcement Review Board),  A.J. No. 1296, 2010 ABCA 336, Alberta Court of Appeal, November 15, 2010, C.D. Hunt and C.D. O’Brien JJ.A., R.P. Belzil J. (ad hoc)
Horon was one of the arresting police officers who attended at an Edmonton apartment in February 2003 for a noise complaint. Horon and his partner detained a man named Holloway, and took him to police headquarters where Horon conducted a strip search of him. Contrary to the Edmonton Police Services Policy, Horon did not make notes about the strip search.
Holloway ultimately complained about his treatment by several officers, but did not name Horon in the initial complaint letter. Hollway referenced Horon’s police vehicle by number and complained against a group of officers about excessive use of force, criminal assault, unlawful confinement and kidnapping, unlawful entry and search of the apartment, “failure to make accurate and complete records of the investigation”, and negligent investigation. The complaint letter did not reference the specific policy governing the requirement to keep records of a strip search.
An internal investigation followed and Horon wrote a memorandum in which he admitted that, although he had conducted a search in the cell, he had not made any notes because his “involvement was merely cursory”. A final investigative report was issued in October 2005 that did not name Horon.
A decision was taken by the acting Chief of Police that the officers, not including Horon, would not be charged criminally and that the allegations of misconduct were not sustained.
Holloway appealed pursuant to s. 48(2) of the Police Act, RSA 2000, c. P-17. The appeal included a ground of inadequate investigation, and further and other grounds of appeal as would become apparent upon receipt of disclosure. It was not until August 2007 that a particular ground of appeal was revealed regarding Horon’s failure to make notes of his activities during the investigation.
A hearing was held before the Law Enforcement Review Board and arguments that the failure to make adequate records of the strip search was part of the original complaint encompassed by the alleged general failure to keep accurate and complete records of the investigation. The Board directed that the Chief of Police then lay a charge of neglect of duty against Horon since a presiding officer could conclude that a disciplinary offence had taken place, on the basis that Horon had not kept any notes. The matter was remitted back to the police for a disciplinary hearing. However, the reasons given by the Law Enforcement Review Board did not discuss whether a complaint was ever made against Horon.
On appeal, Horon argued that the Board was without jurisdiction to direct a charge of neglect of duty, since no complaint had been made against him. The court held that appeals to the Alberta Court of Appeal from decisions of the Law Enforcement Review Board are restricted to questions of law, pursuant to the Police Act, s. 18. A jurisdiction question is a question of law and, when such questions arise, “the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter.” (Dunsmuir v. New Brunswick, 2008 SCC 9, para. 59)
Correctness is the appropriate standard of review for questions of true jurisdiction. However, the court held that this issue was not a matter of true jurisdiction. The court distinguished the decision in SC v. Calgary Police Commission, 2001 ABCA 122 since that matter had involved a jurisdictional issue because the complainant had never made a complaint. In Horon’s matter, there was a complaint, and the question before the Law Enforcement Review Board was whether or not the complaint included Horon.
The legislation did not contain a privative clause, but the question of whether or not the letter of complaint included Horon was not outside the Board’s expertise. Thus, a reasonableness standard should apply to the question of whether the Board properly concluded that Horon was included in the complaint.
The court then considered the question of adequacy of reasons and indicated that reasons for a conclusion should permit an individual to understand why a decision was made and to allow a reviewing court to assess the validity of the reasons. Some lines of authority have held that the adequacy of reasons should be assessed on a reasonableness standard, whereas other cases have found that inadequate reasons violate the requirement of fairness described in Baker v. Canada (Minister of Citizenship and Immigration),  2 F.C.R. 817, making adequacy of reasons reviewable on a correctness standard.
The Law Enforcement Review Board had already acknowledged that its reasons were inadequate on the question of whether or not Horon was included in the complaint. Nothing was offered by the tribunal to support its decision on the issue, and thus the court held that the Law Enforcement Review Board had breached its obligations with respect to adequacy of reasons.
The appeal was allowed because the court could not ascertain why the Law Enforcement Review Board had reached the conclusion that Horon’s conduct was included in the complaint. The Board’s reasons did not consider what the complaint meant by “officers who were at the scene”, or what the scope of the investigation was in relation to the allegation that there were inadequate records.
Although the court held that sometimes a reviewing court is positioned to decide an appropriate outcome based on the record before it, and sometimes little would be gained by remitting the matter back to a tribunal for proper reasons, here there was a lack of a complete record and it was impossible to tell what, if any, evidence had been heard about what constituted the “investigation”. The order of the Law Enforcement Review Board was therefore quashed and the matter was remitted back for consideration by a new panel.
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