This was an application by the Chief of the Edmonton Police Service (the “Chief”) for leave to appeal a decision by the Law Enforcement Review Board (the “Board”)

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

Edmonton (City) Police Service v. Alberta (Law Enforcement Review Board), [2012] A.J. No. 1172, 2012 ABCA 357, Alberta Court of Appeal, November 27, 2012, J. Watson J.A.

A complaint of police misconduct was made by a civilian against a constable and a sergeant. The complaint involved seven separate allegations concerning the civilian’s arrest. The Chief provided a disposition letter dismissing the complaints concluding there was “no reasonable prospect of establishing the facts necessary to obtain a conviction at a disciplinary hearing”. The Board affirmed the dismissal of five of the seven allegations and directed a hearing in regard to the following two matters: (1) the allegation that the constable failed to conduct a CPIC search before arresting the civilian (“allegation #5”), and (2) the allegation that the constable used excessive force when arresting the civilian (allegation #6).

Regarding allegation #5, the civilian had entered into an undertaking to stay out of Rexall Place and the constable spotted the civilian there. There was evidence however indicating that the undertaking had been varied. Despite this, the constable nonetheless arrested the civilian for breach of the undertaking condition without first carrying out a CPIC check. Regarding allegation #6, the Chief’s letter provided no reasons why there was no reasonable prospect of conviction.

The Chief proposed two grounds of appeal: (1) in regard to allegation #5, did the Board err by failing to articulate and apply the correct standard of review applicable to the decision of a Chief of Police to dismiss a public complaint of misconduct without a hearing?, and (2) in regard to allegation #6, did the Board err by ordering a disciplinary proceeding in the absence of any finding of a reasonable prospect of conviction, or any clear evidence of a disciplinary infraction?

The Alberta Court of Appeal outlined that the test for leave is whether the issues involve a significant question of law with a reasonable prospect of success. The Court also outlined that the interpretation of home or related statutes and regulations is generally, even presumptively, reviewed on a standard of reasonableness.

Regarding the Chief’s first ground of appeal concerning allegation #5, the Chief argued that the Board repeatedly used the words “more robust” in its reasons and, therefore, modified the reasonableness standard of review. The Court of Appeal found that it was appropriate to look at what the Board did as distinguished from what the Board said. The Appeal Court noted that the Chief made reference in the disposition letter that the variation of the undertaking had not yet been updated on the computer system and that, as a result, any CPIC search undertaken prior to the arrest would have suggested the condition was still in place. He concluded that the “outcome would have been the same”. The Appeal Court found that the effect of the Board’s decision was to find that the Chief’s approach to the misuse of authority allegation was unreasonable due to the Chief’s almost exclusive regard to the irrelevant consideration of hindsight. As such, the Appeal Court found that the Chief had not shown that the Board’s decision is vulnerable to reversal on the grounds it misapprehended the standard of review to be applied in connection with allegation #5.

Regarding the Chief’s second ground of appeal, the Alberta Court of Appeal found that the gist of the Board’s reasons was that the Chief’s implicit conclusory statement that there was no reasonable prospect of conviction on allegation #6 was unreasonable and therefore did not stand in the way of a hearing being conducted. Having reached this position, the Appeal Court held it was within the Board’s authority to direct a hearing on the allegation. The Board found there was a triable question as to whether the constable used inappropriate force in the arrest of the civilian and the Appeal Court was unable to find that the Board was so “obviously incorrect” on that subject as to justify appellate intervention.

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