Judicial review of decision of adjudicator under Police Act reviewing disciplinary decision that found the officer breached the Charter but did not commit misconduct
Administrative law – Decisions of administrative tribunals – Police Commission – Police – Disciplinary proceedings – Investigations – Judicial review – Standard of review – Reasonableness simpliciter – Privative clauses – Charter of Rights and Freedoms – Search and seizure
Lowe v. Diebolt,  B.C.J. No. 1331, 2013 BCSC 1092, British Columbia Supreme Court, June 21, 2013, E.M. Myers J.
The petitioner, the Police Complaints Commissioner, applied for judicial review of a decision of the respondent, the Honourable William Diebolt, made as a retired judge pursuant to the Police Act, R.S.B.C. 1996, c. 367 (the “Act”).
The underlying decision arose from a complaint made against three police officers following a traffic stop. The complaint alleged the police offers asked the complainant to step out of her car, handcuffed her, and searched the car. A female officer strip searched the complainant in a gas station washroom. Pursuant to procedures under the Act, it was held the complaint, if substantiated, would constitute misconduct amounting to abuse of authority. The complaint was investigated. At the conclusion of the investigation, the officer acting as “Discipline Authority” in the matter concluded the officers had reasonable and probable grounds for the search. However, there were not sufficient grounds to conduct the strip search, which violated the Charter. Nevertheless, the female officer did not commit an abuse of process and was acting in good faith.
The petitioner applied under the Act for review of the Discipline Authority’s decision. Review is permitted where the petitioner has a reasonable basis to believe the decision is incorrect. The petitioner appointed the respondent to review the decision. The respondent concluded misconduct was not substantiated by proof on a balance of probabilities. The petitioner applied to the Supreme Court for judicial review from the respondent’s decision.
The court determined the standard of review. Because the respondent is not subject to the Administrative Tribunals Act, S.B.C. 2004, c. 45, the standard of review is determined according to common law principles. The court referred to earlier decisions that determined the standard of review under the Act is reasonableness. However, even if those decisions did not apply, because of the privative clause under the Act; that the question before the respondent was not of general legal importance; the expertise of the respondent in criminal law, fact finding, and application of the law to findings of fact; and that the question on review was one of mixed fact and law, the standard of review would be reasonableness.
On review, the issue for the court was whether the decision was reasonable. The petitioner argued that because the strip search could not be justified and constituted a breach of the Charter, it was an intentional or reckless search without good and sufficient cause, the statutory requirements for a finding of misconduct under the Act in these circumstances. The court disagreed with this position. It distinguished the question of misconduct from whether a Charter breach occurred. While the respondent’s decision regarding the validity of the search itself may have been unreasonable or incorrect, the validity of the search was not dispositive of the issue of misconduct under the Act. The definition of misconduct under the Act requires intent or recklessness. The fact that the officer may be ignorant of the legal requirements for a search, resulting in an unlawful search, does not, by itself, indicate intent or recklessness. In the absence of evidence of intent or recklessness, the decision met the reasonableness standard.
The court also noted that the petitioner failed to provide notice under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, to the Attorney General. The court observed notice to the Attorney General is more than a technicality or formality. It is important the Attorney General be given the opportunity to appear where the decision under review is not that of a board or institutional tribunal but an individual adjudicator who cannot be expected to make an appearance.
The court dismissed the petition for judicial review.
This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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