The Law Enforcement Review Board of Alberta overturned a Presiding Officer’s decision at a disciplinary hearing to terminate the employment of a constable who had admitted to 8 counts of misconduct. The Board held that the Presiding Officer’s failure to give weight to the impact of the constable’s depression on his misconduct, on which a psychologist gave expert evidence, was unreasonable, and it reinstated the constable’s employment. On appeal, the Court of Appeal held that the Board erred when it failed to properly apply the reasonableness standard to the Presiding Officer’s decision. The Board substituted its own decision for a reasonable decision of the Presiding Officer.

Administrative law – Decisions of administrative tribunals – Law Enforcement Review Board – Police – Disciplinary proceedings – Penalties and suspensions – Hearings – Judicial review – Evidence – Compliance with legislation – Standard of review – Reasonableness simpliciter

Camrose (City) Police Service v. MacDonald, [2013] A.J. No. 1333, 2013 ABCA 422, Alberta Court of Appeal, December 6, 2013, C.D. Hunt, J. Watson and M.B. Bielby JJ.A.

The Presiding Officer at a disciplinary hearing terminated the employment of a constable who, after he was paid to attend a professional development conference, did not actually attend the conference and instead used the time personally. The constable plead guilty to 8 counts of misconduct related to deceit, neglect of duty, and insubordination arising from his failure to attend the conference, and subsequent false statements made when confronted about it. The constable was subsequently treated for depression and had a psychologist give expert evidence that his depression played a major role in the behaviour that constituted misconduct. However, the Presiding Officer found no nexus between the constable’s depression and his misconduct.

The constable appealed the decision to the Law Enforcement Review Board and argued, for the first time, that the chief breached s. 10 of the Police Service Regulation (PSR) during the investigation into the misconduct when he failed to give the constable 14 days to provide an explanatory report for his misconduct. The Board treated the chief’s breach as a mitigating factor as to penalty, and found that the failure to give weight to the constable’s depression was unreasonable. The Board reinstated the constable’s employment and substituted its own lesser penalty.

The chief appealed the Board’s decision to the Court of Appeal and the appeal was allowed. The Court held that while the Board was right to state that the proper standard of review was reasonableness, it did not actually apply that standard. Rather, it substituted its own decision for a reasonable decision of the Presiding Officer. The Court found that the Board also made various errors, including an error in law as to the treatment of the chief’s breach of s. 10 of the PSR, and quashed the decision. The Court remitted the matter back to the Board for further consideration with directions.

This case was digested by Kara L. Hill of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at khill@harpergrey.com or review  her biography at http://www.harpergrey.com.

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