Application to the Alberta Court of Appeal for leave to appeal a decision of the Alberta Law Enforcement Review Board remitting a matter back to the same decision maker that initially dismissed the appellant’s complaint against a police officer.

[2016] A.J. No. 327

2016 ABCA 95

Alberta Court of Appeal

F. L. Schutz J.A.

April 7, 2016

The applicant brought a complaint against a member of the Edmonton Police Service following an incident in which the appellant was shot by a police officer after he stabbed a police service dog while attempting to flee a residence. The complaint was initially dismissed following an internal investigation, but was revived by the Law Enforcement Review Board (the “Board”) on appeal. The officer in question was charged with unlawful or unnecessary exercise of authority, contrary to s. 5(2)(i) of the Police Service Regulation, Alta. Reg. 356/1990, and the matter was set down to be heard by a Presiding Officer as required by the Police Act, R.S.A. 2000, c. P-17 (the "Act").

Ultimately, the Presiding Officer dismissed the complaint. The applicant appealed this second dismissal to the Board. In a lengthy decision, indexed at 2015 ABLERB 28, the Board found that it was “unable to conclude” that the Presiding Officer’s decision was “justified, transparent and intelligible” based on the reasons given, and the decision was therefore unreasonable. On the issue of remedy, the applicant submitted that the Board itself should hear the complaint anew, rather than referring the matter back to a Presiding Officer. The respondents submitted the matter should be sent before a new Presiding Officer. The Board ultimately fashioned its own remedy, sending the matter back to the same Presiding Officer for a fresh decision to be made on the record already before him.

The applicant sought leave to appeal the remedy granted by the Board, arguing that the Board violated the principle of procedural fairness by not taking submissions from the parties on the specific remedy it was considering, and that the remedy created a reasonable apprehension of bias. Section 18 of the Actprovides for a limited right to apply for leave to appeal a decision of the Board on a question of law. The Court’s jurisprudence made clear that the test to be applied under that section is whether the proposed appeal “involves a significant question of law with a reasonable prospect of success.”

Turning first to the alleged breach of procedural fairness, Mr. Justice Schutz noted that the parties had been afforded the opportunity to make submissions on the issue of the remedy to be granted by the Board generally, and held procedural fairness did not require the Board to seek submissions on the specific remedy it was considering. Further, Schutz J.A. suggested the issue was more properly characterized as simply the choice of remedy, which was a discretionary decision and subject to a “reasonableness” standard of review. In either event, this ground had no reasonable prospect of success.

Moving on to whether the remedy created a reasonable apprehension of bias, Schutz J.A. held that even if the selection of the remedy in this case was an issue of law, it involved the Board’s exercise of its discretion, and so was subject to “a very high standard of review”. Further, while the Board did not cite Edmonton Police Service (Chief of Police) v. Furlong, 2013 ABCA 177, [2013] A.J. No. 487, which sets out the factors to be considered in determining whether it is appropriate to remit a decision back to the same decision maker, the Board had appropriately weighed those factors. This ground also had no reasonable prospect of success.

As neither of the grounds of appeal proposed by the applicant had a reasonable prospect of success, his application was dismissed.