The Law Enforcement Review Board overturned a police chief’s dismissal of a complaint on the basis that the investigation was inadequate. The Alberta Court of Appeal overturned the Board’s order that the complaint be directed to a discplinary hearing, because the only appropriate order in the circumstances where there was an inadequate investigation, is to order further investigation. With respect to a second complaint of unlawful arrest, the Board overturned the Presiding Officer’s dismissal of a complaint on the basis that the officers did not have a warrant to enter the home where they made the arrest. The Court found that the Board erred in failing to consider whether the officers had consent to enter the home. As the Board did not consider whether the Presiding Office decided that the officers had consent to enter the home, the Board’s decision was incomplete on a vital point.
Administrative law – Decisions of administrative tribunals – Law Enforcement Review Board – Police – Disciplinary proceedings – Investigations – Inadequate investigations – Remedies – Judicial review – Evidence – Compliance with legislation
Land v. Alberta (Law Enforcement Review Board),  A.J. No. 1372, 2013 ABCA 435, Alberta Court of Appeal, December 16, 2013, C.M. Conrad, J. Watson and B.L. Veldhuis JJ.A.
Two complaints were filed against police officers arising out of two incidents involving the same individual: first, that the police used excessive force during an arrest of the complainant, and used profane and racist language; and second, that the police later unlawfully entered the complainant’s residence, improperly applied force to his mother, and again used profane and racist language. The Police Chief dismissed the first complaint after directing it to be investigated by the Professional Standards Branch. The Chief reviewed the internal investigation report and related documents and determined that there was “no reasonable prospect of establishing the facts necessary to obtain a conviction at a disciplinary hearing.”
The complainants appealed this decision to the Law Enforcement Review Board, which concluded that the investigation into the first complaint was inadequate because there was no attempt to get evidence from the officers about the allegation regarding excessive force. The Board overturned the Chief’s decision to dismiss the complaint and ordered that a disciplinary hearing be conducted. The officers appealed the Board’s decision to the Court of Appeal, which held that the Board was warranted in overturning the Chief’s decision to dismiss the complaint because of the inadequate investigation, but it was not warranted in going so far as to order a disciplinary hearing. The only reasonable remedy in circumstances where there was an inadequate investigation is to direct a further investigation.
With respect to the second complaint, the Chief directed it to a disciplinary hearing, where the Presiding Officer heard conflicting evidence regarding whether the officers had consent to enter the complainant’s home. The Presiding Officer ultimately dismissed the complaint and the complainant appealed to the Board, which reversed the Presiding Officer’s decision. The Board held that since the officers did not have a warrant to enter the home and arrest the complainant, the arrest was not lawful.
On appeal, the Court of Appeal held that the Board erred in failing to consider whether the officers had consent to enter the residence, regardless of a warrant. As the Board did not consider whether the Presiding Officer decided that the officers had consent, its decision was incomplete on a vital point. With respect to the appropriate test that a police chief should apply in deciding whether to send a complaint for a hearing under section 45 of the Police Act, the Court of Appeal clarified that the test is whether there was a reasonable prospect of conviction.
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 email@example.com or review her biography at http://www.harpergrey.com.
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