Police - Professional governance and discipline - Investigations; Judicial review - Standard of review - Reasonableness simpliciter - Compliance with legislation

Calgary (Police Service) v. Alberta (Law Enforcement Review Board)

The appellants successfully appealed a decision of the Law Enforcement Review Board, setting aside a decision of the Chief of Police of the Calgary Police Service, directing that a hearing be held in relation to a complaint against two constables with the Calgary Police Service.

[2013] A.J. No. 306

2013 ABCA 124

Alberta Court of Appeal

J.E.L. Cote, E.I. Picard and F.F. Slatter JJ.A.

April 16, 2013

Mr. Cody, the respondent, filed a complaint with the Chief of Police of the Calgary Police Service (the "Chief of Police"), regarding an investigation by two constables that lead to a charge of aggravated assault and an Emergency Protection Order against Mr. Cody. The complaint alleged the constables' investigation was inadequate and biased, one of the constables willfully or negligently made false statements to a Justice of the Peace, and the constables unlawfully or unnecessarily exercised their authority by laying a criminal charge of aggravated assault when they had no grounds to do so.

The Chief of Police instigated an investigation in relation to the complaint pursuant to the Police Act, R.S.A. 2000, c. P-17, s. 45(1). Following the investigation, the Chief of Police disposed of the complaint as follows:


(a) One constable admitted the allegation of failure to conduct a thorough and unbiased investigation. The other constable did not admit the allegation; however, the Chief of Police found that allegation was sustained against that constable. The Chief of Police elected to treat the complaint as "not of a serious nature" under s. 45(4) of the Police Act, and reprimanded one constable and issued an official warning to the other constable.
(b) The Chief of Police concluded that the constable's verbal ommission before a Justice of the Peace did not amount to a willful or negligent act of deceit and that the second allegation was not sustained.
(c) The Chief of Police concluded that the constables had grounds to lay an appropriate criminal charge based on the evidence they collected; therefore, the third allegation was not sustained.

Mr. Cody appealed the Chief of Police's decision on the second and third allegations to the Law Enforcement Review Board (the "Board").

The Board determined that on review it was to apply a "more robust" standard beyond reasonableness to the Chief of Police's decision. The Board concluded that on the second and third allegations there was a reasonable prospect of conviction and the decision to not send the second and third allegations to a hearing was unreasonable. The Board directed that a hearing be held in respect of the second and third allegations.

The constables and Chief of Police sought leave to appeal to the Alberta Court of Appeal. Leave to appeal was granted on one issue: the appropriate standard of review for the Board in reviewing a decision involving the conduct of a police officer.

On appeal, the court held that the standard of review applied by the Court of Appeal when reviewing decisions of the Board is as follows:
(a) Correctness on the selection of the standard of review by the Board.
(b) Correctness on the application of that standard of review by the Board.
(c) Reasonableness on other issues on the merits within the expertise of the Board, unless those questions are truly "jurisdictional" in nature or issues of general interest to the legal system.

The court held the Board erred in stating the standard of review. The standard of review to be applied to decisions of the Chief of Police is reasonableness. There is no standard of "robust reasonableness" as applied by the Board.

In order to determine the appropriate remedy, the court considered the statutory scheme. Pursuant to s. 45(2) of the Police Act, complaints must be streamed in two possible directions: breaches of statute go to the Minister of Justice and Attorney General, and disciplinary breaches potentially go to a hearing. In respect of the latter category, where the Chief of Police categorizes the complaint as one of regulatory misconduct, i.e., a contravention of the regulations governing the discipline or the performance of the duties of police officers, the Chief of Police has the option of dealing with the complaint summarily or sending it to a hearing. The Chief of Police is not required to send every complaint to a hearing; rather, the Chief of Police plays a screening role and may decline to send the matter for hearing either where there is no reasonable prospect of a conviction or there are other policy reasons why a prosecution is not in the public interest. It is not, however, the role of the Chief of Police to determine if the complaint has been proven or not proven without holding the hearing contemplated by the Police Act.

The court held that the Chief of Police misunderstood his role in these circumstances. Rather than asking whether there was a reasonable prospect of a finding of misconduct if the evidence was put before a presiding officer at a full hearing, the Chief of Police asked himself whether, in his mind and with the evidence before him, the charges were sustained or not sustained. In that respect, the Chief of Police went beyond the screening role the statute assigned.

The court held that the Board did not properly state the standard of review and should have asked itself if the decision of the Chief of Police was unreasonable because he asked the wrong question, rather than the Board determining whether the evidence disclosed that the allegations had been proven. The Board may have come to the right conclusion, but for the wrong reasons.

The court granted the appeal. The court set aside the decision of the Board and remitted the matter back to the Chief of Police to reconsider if a hearing should be held in respect of the second and third allegations.