The Law Enforcement Review Board erred in considering only a partial record in setting aside the Chief of Police’s dismissal of a complaint of misconduct against a police officer and directing the Chief to hold a hearing. The decision was reviewed on a reasonableness standard. Given the inordinate delay, the Court declined to remit the matter back to the Board for further consideration.

Administrative law – Decisions of administrative tribunals – Law Enforcement Review Board – Police – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Hearings – Evidence – Judicial review – Delay – Standard of review – Reasonableness simpliciter

Eltom v. Alberta (Law Enforcement Review Board), [2011] A.J. No. 1017, 2011 ABCA 260, Alberta Court of Appeal, September 23, 2011, E.A. McFadyen, R.L. Berger and B.K. O’Ferrall JJ.A.

An accused filed a complaint of misconduct against a police officer for an incident that occurred in 2001. At his 2003 trial, the trial judge dismissed all charges against the accused on the grounds that his Canadian Charter of Rights and Freedoms had been violated. The accused’s complaint of police misconduct was investigated in 2003 and dismissed by the Chief of Police in 2004. The accused appealed the Chief’s dismissal to the Law Enforcement Review Board (“the Board”). The Board reviewed the Chief’s decision on a de novo standard and concluded it was to decide whether, on the evidence before, there was a reasonable prospect of establishing that the disciplinary offences had been committed. The Board did not have before it all of the materials considered by the Chief. The Board concluded that the trial judge’s decision was properly admissible and relied on it to conclude that the matter should be returned to the Chief of Police with the direction that he hold a hearing. The police officer sought an appeal from the Board’s order.

On appeal, the Court concluded that the Board’s function was to decide whether the Chief’s decision was reasonable, not whether the Board would have concluded, as it did here, that the evidence was sufficient to warrant charges. The Board owed deference to the Chief on factual issues relating to sufficiency of the evidence. The applicable standard was reasonableness and required the Board to assess the reasonableness of the Chief’s decision, based primarily on the material before him. A partial record, as was filed before the Board, will not suffice. Accordingly, the Court found that the Board erred and the appeal was allowed. Given the inordinate delay, the matter was not remitted back to the Board for reconsideration.

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