[2011] A.J. No. 593

2011 ABCA 162

Alberta Court of Appeal

J.E.L. Côté and P.T. Costigan JJ.A. and R.A. Graesser J. (ad hoc)

May 27, 2011 The Appellant police officer, Mr. Spinks, successfully appealed the decision of the Law Enforcement Review Board regarding Discreditable Conduct charges in relation to information Mr. Spinks disclosed during a child abuse investigation.

The Appellant police officer, Mr. Spinks, investigated child abuse allegations made against Mr. L.T. by his ex-partner, Ms. W. Mr. Spinks found evidence to support the allegations. He later disclosed information to Mr. L.T.'s partner and one of Mr. L.T.’s ex-partners (both of whom had children). Specifically, Mr. Spinks told these two women that he had evidence suggesting that Mr. L.T. abused Ms. W’s child. He felt he had a duty to tell these two women that much.

Mr. L.T. complained to the police about Mr. Spinks. Mr. Spinks was charged with a discipline offence for implying that Mr. L.T. was guilty and since his conduct was prejudicial to discipline or likely to bring discredit on the reputation of the Police Service. A discipline hearing was held in 2005 before the Superintendent and Mr. Spinks was acquitted.

Mr. L.T. appealed the Superintendent’s decision to the Law Enforcement Review Board (the “Board”). In 2009, the Board convicted Mr. Spinks and ordered an official reprimand. Mr. Spinks successfully sought leave to appeal to the Court of Appeal.

Before the Court of Appeal, Mr. Spinks argued that the Board did not provide legally sufficient reasons for its determination that he was guilty of “Discreditable Conduct”. Although the Board does not have a statutory duty to give reasons, Mr. Spinks argued it had a common-law duty to do so as part of its duty of fairness.

The Court first confirmed that it did not owe deference to the Board when assessing the adequacy of its reasons. The Court found the Board’s reasons were inadequate for several reasons. The Board did not adequately explain the standard of review of the Superintendent’s decision. The Board stated that the standard of review was reasonableness but then seemed to re-weigh the evidence in several instances and even used the word “findings”.

The Board considered Mr. Spinks’ disclosure on a standard of “necessity” when the Superintendent applied a less stringent standard. The Superintendent recognized the conflicting duty of Mr. Spinks to the ex-partner’s children. The Board never explained the rationale for using a “necessity” test in reference to Mr. Spinks’ conduct and that test does not appear in the relevant legislation or code of conduct. The Board never identified the requisite elements of Discreditable Conduct or the standard involved in meeting those elements.

Further, the Court noted that the Board was critical of the Superintendent’s failure to refer to the impact of the disclosure on Mr. L.T. However, the Court found this was quite likely an obvious consequence that it did not need to be specifically enumerated by the Superintendent. The Board then seemed to draw its own fresh inference about the impact of Mr. Spinks’ conduct on Mr. L.T. (without evidence from Mr. L.T.).

Finally, the Board was critical of the Superintendent’s reliance upon Mr. Spinks’ investigation report, which referred to various medical reports. The Board suggested that the medical reports needed to be in evidence themselves in order for their contents (summarized in the investigation report) to be relied upon. The Court disagreed since the contents of the investigation report were not contradicted at the hearing before the Superintendent and the Superintendent specifically noted that when relying upon the report.

The Court found the Board’s reasons did not meet the standard for transparency or meaningful review on appeal. The Court set aside the Board’s decision and left it up to the prosecution to decide whether to proceed with a new hearing before the Board.