A- 4900 50 ST TABER, AB CANADA T1G 1T1 TELEPHONE: (403) 223-5500 FAX: (403) 223-5530
TOWN 01' TABER
Agenda Forwarded: February 15, 2013
AGENDA
REGULAR MEETING OF THE TABER MUNICIPAL POLICE COMMISSION TO BE HELD IN THE COUNCIL CHAMBERS, ADMINISTRATION BUILDING, ON WEDNESDAY, FEBRUARY 20,2013 AT 4:30PM. MOTION
ITEM NO. 1. CALL TO ORDER
ITEM NO. 2. ADOPTION OF AGENDA ITEMS X
ITEM NO. 3. DELEGATIONS • NONE
ITEM NO. 4. ADOPTION OF MINUTES A) RFD Regular Meeting- January 16, 2013 X
ITEM NO. 5. BUSINESS ARISING FROM THE MINUTES • NONE
ITEM NO. 6. INFORMATION ITEMS A) RFD Alberta Law Enforcement Review Board: Annua1Reportfor2011 X
ITEM NO. 7. ACTION ITEMS A) RFD Alberta Association of Police Governance (AAPG): Conference Donation Request X
ITEM NO. 8. COMMISSION/STAFF REPORTS A) RFD Police Chief's Report X B) RFD Financial Information to February 14,2013 X
ITEM NO. 9. OTHER BUSINESS • NONE
ITEM NO. 10. MEDIA INQUIRIES
ITEM NO. 11. CLOSED SESSION X Legal Labour
Page 1 of 2
email: town @taber.ca www.taber.ca ITEM NO. 12. OPEN SESSION X
ITEM NO. 13. CLOSE OF MEETING X
Page 2 of2 Agenda Item # 4. A)
TABER MUNICIPAL POLICE COMMISSION Commission Request For Decision
Subject: Police Commission Minutes Date of February 20, 2013 Agenda: Prepared By: Kerry Van Ham, Council & CAO Assistant Attachments: Minutes Budget: If Over Budget, what is alternate funding Expense: source? Topic: Minutes of the Regular Meeting of the Taber Police Commission held on January 16, 2013 m D) (') ~ (Q ca a.::::s
0 "C 1. That the Taber Police Commission adopts the Minutes of the Regular ~ Meeting of January 16, 2013, as presented. 0 ::::s tn 2. That the Taber Police Commission adopts the Minutes of the Regular Meeting of January 16, 2013, as amended.
Recommendation: Option #1 -That the Taber Police Commission adopts the Minutes of the Regular Meeting of January 16, 2013, as presented.
Approval February 15, 2013 CAO: ~ Date: 1/2013 January 16, 2013
MINUTES OF THE REGULAR MEETING OF THE TABER MUNICIPAL POLICE COMMISSION, HELD IN THE COUNCIL CHAMBERS, ADMINISTRATION BUILDING, ON WEDNESDAY, JANUARY 16, 2013 AT 4:30 PM.
PRESENT: Henk De Vlieger Ken Holst Councillor Garth Bekkering Councillor Randy Sparks Chris Bernhardt
ABSENT: Deb Sargeant Harry Prummel
ALSO PRESENT: Police Chief Alf Rudd T. Greg Birch, Chief Administrative Officer (CAO) Kerry Van Ham, Council & CAO Assistant/Recording Secretary
CALL TO ORDER
G. Birch, Chief Administrative Officer (CAO), called the Regular Meeting of the Taber Police Commission to order at 4:33 PM. He noted that at the previous Commission meeting, the members had elected a chairperson only for that meeting because of the vacancies on the Commission. He said that the Commission could do that again or appoint a chairperson for the full term. Mr. Birch then said that he had been approached by a member about an issue the member would like to discuss in closed session before dealing with the chairperson election. The member had said that it was a labour matter that may affect the choice of the chairperson.
CLOSED SESSION
RES. 1/13 MOVED by Councillor Bekkering that the Taber Police Commission move into Closed Session to discuss a labour matter.
CARRIED UNANIMOUSLY at 4:33 PM
OPEN SESSION
RES. 2/13 MOVED by Councillor Bekkering that the Taber Police Commission reconvene into Open Session.
CARRIED UNANIMOUSLY AT 5:03PM
1/2013 January 16, 2013 2/2013 January 16, 2013
ELECTION
A) Chairman
G. Birch called for nominations from the floor for the position of Chair of the Taber Municipal Police Commission.
Councillor Bekkering nominated Henk De Vlieger for the position of Chair of the Taber Municipal Police Commission.
G. Birch called for further nominations, a second, and a third and final time.
Being as there were no further nominations, Henk De Vlieger was declared elected Chair of the Taber Municipal Police Commission, by acclamation.
B) Vice Chairman
G. Birch called for nominations for the position of Vice Chair of the Taber Municipal Police Commission.
C. Bernhardt nominated Ken Holst for the position of Vice Chair of the Taber Municipal Police Commission.
G. Birch called for further nominations, a second, and a third and final time.
Being as there were no further nominations, Ken Holst was declared elected Vice Chair of the Taber Municipal Police Commission, by acclamation.
H. De Vlieger assumed the Chair duties for the balance of the Taber Municipal Police Commission meeting.
ADOPTION OF THE AGENDA ITEMS
Chair H. De Vlieger inquired if there were any additions or deletions to the agenda, and there were none.
RES. 3/13 MOVED by Councillor Bekkering that the Taber Police Commission adopt the Agenda as presented.
CARRIED UNANIMOUSLY
DELEGATIONS· NONE
2/2013 January 16, 2013 3/2013 January 16, 2013
ADOPTION OF THE MINUTES
A) Regular Meeting- November 28, 2012
K. Holst stated that a member of the public had contacted him to ask for verification of the accuracy of the times that were recorded in the minutes of the November 28, 2012 meeting, in which the Taber Municipal Police Commission reconvened into open session (RES.96/2012), and also accepted, for information, a letter from Police Chief Alf Rudd regarding the complaint of the same member of the public (RES.97/2012).
The Taber Municipal Police Commission discussed the progression of the November 28, 2012 meeting, the accuracy of the recorded minutes, and the due diligence procedure of minute taking. The Commission members also noted that there was no public or media presence at that point of the November 28, 2012 meeting.
RES. 4/13 MOVED by K. Holst that the Taber Police Commission adopt the minutes of the Regular Meeting of November 28, 2012, as presented.
CARRIED UNANIMOUSLY
BUSINESS ARISING FROM THE MINUTES - NONE
INFORMATION ITEMS
A) Police Performance Metrics
Police Chief Rudd stated that, along with K. Holst, he participated in an interview conducted on behalf of the Public Safety Canada project regarding Taber Police Services processes of police performance, as prescribed by the Solicitor General. Related correspondence was in the agenda package.
RES. 5/13 MOVED by C. Bernhardt that the Taber Police Commission accepts the correspondence for information purposes.
CARRIED UNANIMOUSLY
B) Sustainability of Public Police: Research Project Support
At the Police Commission meeting of November 28, 2012, the Taber Police Commission directed Chief Alf Rudd and the Chair of the Police Commission to draft a letter of support for the research to be undertaken by Carleton University regarding the sustainability of public police service in Canada for the Chair's signature. 3/2013 January 16, 2013 4/2013 January 16, 2013
INFORMATION ITEMS- CONT'D
B) Sustainability of Public Police: Research Project Support- Cont'd
The letter which was submitted on behalf of the Taber Municipal Police Commission was included in the agenda package for information purposes.
RES. 6/13 MOVED by Councillor Sparks that the Taber Police Commission accepts the correspondence for information purposes.
CARRIED UNANIMOUSLY
ACTION ITEMS
A) Canadian Association of Police Boards (CAPB): Call for Resolutions
Police Chief Rudd stated that the CAPB is calling for resolutions for presentation at the Annual General Meeting on August 16, 2013 being held in Saskatoon, Saskatchewan.
RES. 7/13 MOVED by Councillor Bekkering that the Taber Police Commission, having no resolution submission, accepts the CAPB Call for Resolutions for information purposes.
CARRIED UNANIMOUSLY
B) Canadian Association of Police Boards: Membership Renewal
A motion is required to approve the payment of the 2013 Membership fees. The Taber Police Service is in the category of 11-25 members for a membership fee of $419.10.
RES. 8/13 MOVED by Councillor Bekkering that the Taber Police Commission approves the payment of the 2013 CAPS Membership Fee in the amount of $419.10.
CARRIED UNANIMOUSLY
4/2013 January 16, 2013 5/2013 January 16, 2013
ACTION ITEMS- CONT'D
C) Policing Oversight Standards: Standards Implementation Resource Material
Following the distribution of the final version of the Policing Oversight Standards which was presented to the Taber Municipal Police Commission at the November 28, 2012, the Office of Alberta Justice and Solicitor General has provided resource material to assist with implementation of the standards.
Police Chief Rudd stated that although Taber Police Service has an existing policy manual, a review of this resource material will need to be conducted in order to ensure that the existing manual is synchronized with this documentation.
MOVED by C. Bernhardt that the Taber Police Commission requests Police Chief Rudd, in consultation with the Chair of the Police Commission, to review the relevance of these suggestions and bring forth applicable suggestions for Police Commission review and input.
Councillor Bekkering requested a friendly amendment to state "in consultation with a member of the Police Commission", rather than "in consultation with the Chair''.
C. Bernhardt accepted the friendly amendment.
RES. 9/13 MOVED by C. Bernhardt that the Taber Police Commission requests Police Chief Rudd, in consultation with the a member of the Police Commission, to review the relevance of these suggestions and bring forth applicable suggestions for Police Commission review and input.
CARRIED UNANIMOUSLY
C) Taber Municipal Police Commission: Setting Regular Meeting Dates for 2013
The Taber Municipal Police Commission Policy Manual, Section 2.13(1) states that at the first meeting of the year, all meetings occurring that year will be set and made public.
5/2013 January 16, 2013 6/2013 January 16, 2013
ACTION ITEMS - CONT'D
C) Taber Municipal Police Commission: Setting Regular Meeting Dates for 2013- Cont'd
RES.10/13 MOVED by Councillor Sparks that the Taber Police Commission sets the schedule of the Regular Meetings of the Taber Municipal Police Commission for 2013 to be the 3rd Wednesday of each month, excepting July, August and December. Unless notified one (1) week in advance, all meetings begin at 4:30 PM in the Council Chambers of the Town of Taber Administration Building, although the Commission may choose to hold meetings at differing places within the community.
CARRIED UNANIMOUSLY
COMMISSION/STAFF REPORTS
A) Police Chiefs Report
Police Chief Rudd provided an update of departmental activities and statistics to the Taber Police Commission.
The Commission discussed the activities and the statistical trends.
RES.11/13 MOVED by C. Bernhardt that the Taber Police Commission accepts Police Chief Rudd's Report and Stats for information.
CARRIED UNANIMOUSLY
B) Financial Information to November 30, 2012
Police Chief Rudd reviewed the financial statement information for the month ending November 30, 2012.
RES.12/13 MOVED by Councillor Bekkering that the Taber Police Commission accepts the Financial Information to November 30, 2012, for information.
CARRIED UNANIMOUSLY
6/2013 January 16, 2013 7/2013 January 16, 2013
MEDIA INQUIRIES
T. Busch, Taber Times, inquired as to the meaning of hosting "Operation Pipeline" training, which was contained in the Police Chiefs Report.
Police Chief Rudd stated that this training refines profiles for criminals while they are travelling in vehicles by giving officers indicators as to what to look for when they check a vehicle in order to keep our highways safe.
CLOSED SESSION
RES.13/13 MOVED by K. Holst that the Taber Police Commission move into Closed Session to discuss legal and labour matters.
CARRIED UNANIMOUSLY AT 5:29PM
OPEN SESSION
RES.14/13 MOVED by Councillor Sparks that the Taber Police Commission reconvene into Open Session.
CARRIED UNANIMOUSLY AT 6:25PM
RES.15/13 MOVED by Councillor Bekkering that the proposed "Conflict of Interest Involving Members" Policy be incorporated into the Taber Police Service Policy Manual.
CARRIED UNANIMOUSLY
RES.16/13 MOVED by Councillor Bekkering that $36,000.00 of the funds budgeted in 2012 for capital expenditures (Account 4-21-1 0-630-0018) be re-allocated for the purchase of proper dispatch pods and associated equipment.
CARRIED UNANIMOUSLY
7/2013 January 16, 2013 8/2013 January 16, 2013
CLOSE OF MEETING
RES.17/13 MOVED by C. Bernhardt that this Regular Meeting of the Taber Police Commission is hereby closed.
CARRIED UNANIMOUSLY AT 6:28PM
Chairman
Chief Administrative Officer
8/2013 Pol Com
8/2013 January 16, 2013 Agenda Item #6. A)
TABER MUNICIPAL POLICE COMMISSION Commission Request For Decision
Subject: Alberta Law Enforcement Review Date of February 15, 2013 Board: Agenda: 2011 Annual Report Prepared By: Kerry Van Ham, Council & CAO Assistant Attachments: 2011 Annual Report Budget: If Over Budget, what is alternate funding Expense: source? Topic: 2011 Annual Report
tD The Alberta Law Enforcement Review Board 2011 Annual Report is attached for D) n information purposes. cc..,~ 0 r: :::s c. • •
0 1. That the Taber Police Commission accepts the Alberta Law Enforcement -c.... Review Board 2011 Annual Report, for information . -·0 :::s tn • •
Recommendation: Option #1- That the Taber Police Commission accepts the Alberta Law Enforcement Review Board 2011 Annual Report, for information.
Approval February 15, 2013 CAO~ Date:
ALBERTA l.i\\'\1 EN FU IH :Etvl ENT REV IEW 1\( lARI)
October 15, 2012
Honourable Jonathan Denis Q.C., M.L.A. Minister of Justice and Solicitor General Room 403, Legislature Building 10800-97 Avenue Edmonton, AB T5K 2B6
Dear Sir:
Re: Law Enforcement Review Board - 2011 Annual Report
Pursuant to section 14 of the Alberta Police Act, I respectfully submit the Annual Report of the Law Enforcement Review Board (the "Board") for the 2011 calendar year.
This report provides a comprehensive description of the mandate of the Board as well as statistics on the number and nature of appeals filed with the Board, and a summary of the findings on appeals conducted during this period.
Yours truly,
John E. Phillips Chair
cc: J. Ramotar, Deputy Solicitor General R. Bodnaruk, Deputy Minister of Justice B. Meade, Assistant Deputy Minister, Public Security Division Alberta Municipal Police Commissions Chiefs of Police, Alberta Municipal Police Services
I 'i02, City Centre Place, I 002'i - 102 A Avenue, Edmonton, Albl·na C:.mada T 'iJ 2Z2 'IClephone 780-422-'>376 Fax 780-422-4782 En t.~ i l : lcrbQ rl ~ov.ab . c . t www.solgcn.gov.ab.callerb 0 0
0
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0 0 0 ALBERTA LAW ENFORCEMENT REVIEW BOARD 2011 ANNUAL REPORT
TABLE OF CONTENTS
Introduction ...... 1
Purpose ...... 1
Role and Mandate of the Board ...... 1
Legislation ...... 1
Jurisdiction ...... 2
o Who Can Appeal to the Board...... 2 o Complaint/Appeal Process...... 3 o Board Findings/Powers ...... 3
Board Membership ...... 4
o Board Member Profiles ...... 4
Financial ...... 7
Statistical Analysis of Appeals Filed with the Board
o Table 1 -Nature of Appeals ...... 9 o Table 2 - Location of Appeals...... 9 o Table 3- Summary of Hearings ...... 10 o Table 4- Summary of Allegations Identified During Appeal Hearings ...... 11
Summary of Board Judgments
o Standard of Review ...... 12 o Applications/Preliminary Applications ...... 13 o Section 43(11} Reviews ...... 16 o Appeals Allowed ...... 17 o Appeals Dismissed...... 21
Court of Appeal Decisions ...... 44 0 0 0
0 0
0 0
0 0 2011 Annual Report Page 1
INTRODUCTION
Section 14 of the Alberta Police Act requires the Law Enforcement Review Board (the "Board") to file with the Solicitor General for each calendar year, a report showing the number and nature of the appeals and inquiries conducted by the Board, and the summaries of the findings made. This Report covers the activities of the Board during the 2011 calendar year.
PURPOSE
Public accountability is a central issue in complaints against members of professions, such as policing. Structural processes have been established and operate to satisfy the public's demand for accountability, external review, and for openness and transparency. These processes must operate in a context that provides the police with an appropriate level of involvement in the management of complaint matters. In the end, both the public and the police must have confidence in the integrity and fairness of the system.
ROLE AND MANDATE OF THE LAW ENFORCEMENT REVIEW BOARD
The Board was created in 1973. It is an independent, quasi-judicial tribunal established under Part 2 (Sections 9 to 20} of the Police Act to ensure that complaints involving conduct issues are handled fairly and impartially. The Board's primary role is to hear appeals from individuals who have filed a complaint(s} regarding the actions of a police officer and who are not satisfied with the disposition of their complaint. The objective of the Board is to conduct an independent and impartial review of public complaints concerning police officer conduct and of appeals by officers • resulting from any findings or action taken against them arising from a complaint. • The Board may on its own motion conduct inquiries respecting complaints and shall conduct appeals referred to the Board under Section 48 of the Police Act. The Board shall, at the • request of the Minister, conduct inquiries of any matter respecting policing or police services. The Board also has the same power of a Commissioner under the Public Inquiries Act.
LEGISLATION
On May 1, 2011 amendments to the Police Act and the Police Service Regulation came into effect. Changes affecting the Board include:
o Within 30 days of an appeal being filed the Board shall review the written notice of appeal and the record, and make one of the following determinations:
a} dismiss the matter if, in the Board's opinion the appeal was frivolous, vexatious or made in bad faith; 2011 Annual Report Page 2
b) make a decision based on a review of the record and consideration of the factors set out in the Police Service Regulation without conducting a hearing; or c) schedule a hearing where the Board is unable to dismiss or conclude a hearing in accordance with a) or b).
u The Board must issue a decision within 60 days of concluding an appeal. The time period may be extended upon written notice to the parties whether or not the notice period has expired.
u The Board may dismiss an appeal if a party has not complied with or responded to the Board's direction.
o The Board can issue an order if the parties agree to a resolution at any time after the written notice of appeal has been filed. The order issued by the Board concludes the appeal.
o If the Chief is of the opinion that the contravention is not of a serious nature, he may dispose of the matter without conducting a hearing and the decision of the Chief is final. This precludes the complainant from any right to appeal the Chiefs decision to the Board.
JURISDICTION
The Board has statutory jurisdiction over conduct complaints against municipal police officers, as well as officers employed with First Nations police services in Alberta. The following services fall within the Board's jurisdiction:
Municipal Policing: First Nations:
Edmonton Police Service Blood Tribe Police Calgary Police Service Lakeshore Regional Police Camrose Police Service North Peace Tribal Police Lacombe Police Service Tsuu Tina Nation Lethbridge Regional Police Service Medicine Hat Police Service Taber Police Service
Who Can Appeal to the Board: o Public Complainant - A citizen may appeal the decision of the chief of police arising from their conduct complaint. o Police Officer - A police officer, who is an aggrieved party, may appeal the findings or the penalty imposed against them arising from a complaint or from a disciplinary hearing. o Peace Officer - A peace officer may appeal the cancellation of their appointment, or an employer may appeal the cancellation of their authorization. 2011 Annual Report Page3
Complaint/Appeal Process
Municipal police officers are subject to a public complaints process under Part 5 of the Police Act, R.S.A. 2000, Chapter P-17. The Police Act provides that the chief of police is responsible for the investigation and disposition of complaints concerning officer misconduct or policies and services. Once the investigation into the complaint is completed and the disposition determined, the affected individual is advised of the decision in writing and of their right to appeal. If the Chief disposes of the complaint without conducting a hearing, and considers the matter not to be of a serious nature, the decision is final and the complainant has no right to appeal.
Complaints regarding a chief of police are dealt with and disposed of by the respective police commission.
An appeal may be made to the Board for complaints regarding misconduct issues of police officers and chiefs of police. Complaints regarding service or policy issues are appealed to the respective police commission.
Section 18 of the Police Act provides the right for a party to appeal a Board decision to the Court of Appeal on a question of law. An application for leave to appeal must be filed with the Court of Appeal within 30 days from the date the Board issued its decision. Leave must be granted by the Court of Appeal before the appeal can proceed.
The Board has jurisdiction over peace officers who have had their appointment cancelled. Peace officers are also subject to a complaint process under the Peace Officer Act. However, the Board does not have jurisdiction to hear appeals arising from complaints made under section 14 of the Peace Officer Act. The Director of Law Enforcement is responsible for handling those matters.
The Board is unable to withdraw charges laid by police or set aside convictions for federal or provincial offences. The Board does not have the authority to award monetary damages or provide civil compensation. However, the Board may award costs if it is of the opinion that a party or counsel to a party has acted in a frivolous or vexatious manner, or where the Board considers an award of costs warranted in the circumstances.
The Police Act does not apply to members of the RCMP. Complaints regarding the RCMP should be directed to the Commission for Public Complaints against the RCMP at www.cpc cpp-gc.ca or by calling toll free, 1-800-665-6878.
Board Powers/Findings:
Public Complainants/Police Officers:
The powers of the Board are set out in Section 20 of the Police Act. The Board can impose a variety of dispositions depending on whether or not a disciplinary hearing was conducted by the police service prior to the matter being appealed to the Board. 2011 Annual Report Page4
In matters where a disciplinary hearing has been conducted, the Board can:
dismiss or allow the appeal; vary the decision being appealed; affirm or vary the punishment imposed; direct that the matter be re-heard; or take any other action it considers proper in the circumstances.
In matters where the Chief disposed of the complaint without conducting a disciplinary hearing, the Board cannot impose a penalty at the first instance. The Board's authority is limited in its decision making and can render one of the following dispositions:
affirm the decision of the chief of police; direct the chief to conduct a hearing; direct the chief to the laying of a charge under the Police Service Regulation; direct the chief to have the matter investigated again; or take any other action considered proper in the circumstances.
Peace Officers:
The powers of the Board are set out in Section 21(4} of the Peace Officer Act. At the conclusion of an appeal the Board must provide recommendations to the Minister that the decision that was the subject of the appeal be:
confirmed; reversed; or varied.
BOARD MEMBERSHIP
Board members are appointed by an Order in Council and are remunerated in accordance to the fee schedule prescribed by the Lieutenant Governor in Council. Board members are reimbursed for expenses incurred while conducting Board business in accordance with the Travel and Subsistence Regulations for Government employees.
The Lieutenant Governor in Council designates one member as the Chair and who must be an active member of the Law Society of Alberta. Members are appointed for a term not exceeding three years and are eligible for re-appointment. A member continues to hold office until they are either re-appointed or a successor has been appointed. The maximum length of time a member can serve on the Board is twelve consecutive years.
The Board has one full time Chair and 14 part-time members that bring a wealth of extensive professional experience to the Board. In 2011, six new members were appointed to the Board.
Board Member Profiles: a John Phillips was appointed Chair of the Board on June 14, 2007. Mr. Phillips practiced law for 33 years and has extensive experience in family law, criminal law and civil 2011 Annual Report Page 5
litigation. He is a Registered Collaborative Family Lawyer and has completed studies in interest based conflict resolution with the Alberta Arbitration and Mediation Society. Mr. Phillips has been a consultant for the Metis Nation of Alberta and a Senior Advisor, Metis Relations for the Province of Alberta. Mr. Phillips is past Chair of the Calgary Aboriginal Urban Affairs Committee, an advisory body of the City of Calgary and has held various positions including the Chair of the Provincial Metis Justice Committee of the Metis Nation of Alberta, Vice Chair of the Judiciary Council of the Metis Nation of Alberta, and with the National Parole Board as an Aboriginal part-time member. Mr. Phillips is active in the community where he was Chairman of the Board of Directors of Vertigo Mystery Theatre, is a member of the Mensa Canada Society and was a member of the Senate of the University of Calgary. Mr. Phillips served as a commissioned officer in the combat support services of the Canadian Army Reserve. Mr. Phillips is also the Co-Chair of the Calgary and Area Child and Family Services Authority. o Joseph {Archie} Arcand has 30 years experience with Alberta Family and Social Services. During that time he was the provincial representative during negotiations for a tri-partite agreement between the federal and provincial governments and Band Councils in northern Alberta for the delivery of services to band members. Mr. Arcand has also served in numerous capacities on school, recreation and Native Friendship boards.
0 Christine S. Enns* was admitted to the Alberta Bar in 2002. While in private practice she has represented clients in a wide variety of matters including those before the Labour Relations Board and the Immigration Review Board. Ms. Enns has been involved in various types of dispute resolution including mediation and Judicial Dispute Resolution. As a Human Rights Officer with the Alberta Human Rights Commission, Ms. Enns conducted investigations into discrimination complaints, negotiated resolutions and made recommendations regarding merit and settlement for use by the Director of the Commission. Ms. Enns has volunteered at the Edmonton Community Legal Centre since 2005 where she has provided legal services to low income individuals in the Edmonton area. Prior to becoming a lawyer, Ms. Enns was a professional musician and performed as a flute and piccolo player with the Edmonton Symphony Orchestra between 1991 and 2005. Ms. Enns is currently practicing primarily in the area of intellectual property law. o Ron Everard* has practiced law for over 30 years and during this time he has acted as an advocate in many different kinds of cases, including prosecutions for the Government of Canada, as a criminal defense counsel and as a civil litigator. Mr. Everard has appeared before all levels of courts in Alberta and also before various administrative tribunals. Mr. Everard is a trained and an experienced arbitrator and mediator, and as a trained neutral has helped to successfully resolve numerous disputes. Mr. Everard is presently a Commissioner for the Appeals Commission of the Workers' Compensation Board. He previously served for five years as a Trustee of the Calgary District Hospital Group and served for a one-year term as a Member of the Development Appeal Board for the City of Calgary. Since 2004, Mr. Everard has served as an elected Bencher of the Law Society of Alberta. In that role he participated either as a Member or the Chair of many discipline and other hearings. o Wayne Jacques, CA, was involved in the forest products industry for 27 years, including eight years as Vice President responsible for the Alberta Operations of the Canfor Corporation. He served as MLA for Grande Prairie-Wapiti from 1993 to 2001. His 2011 Annual Report Page6
service included the MLA Committee reviewing the Police Act and the Steering Committee developing Policing Standards for Municipal Police Forces. Mr. Jacques currently serves as a Lay Bencher of the Law Society of Alberta. Mr. Jacques has been actively involved in his community including the Peace Country Health Authority Board of Governors, Alberta Transportation Safety Board, Alderman for the City of Grande Prairie, Vice President of the Grande Prairie & District Chamber of Commerce, Board member of the Grande Prairie Regional College Foundation and Director of the Grande Prairie Rotary Club.
o Charlene Kilburn* has extensive administrative tribunal experience as a serving member on Boards such as the Appeals Commission for the Workers' Compensation Board, the Traffic Safety Board, Assured Income for the Severely Handicapped and the Edmonton Social Allowance Board. Ms. Kilburn is a graduate Registered Nurse from the Regina General Hospital School of Nursing and was Nursing Instructor at the Regina General Hospital and the Winnipeg Grace Hospital. Ms. Kilburn is very involved working within the community. She was Chair of the Ronald McDonald House, President of the Edmonton Figure Skating Club, served on the Board of Directors for the YMCA and the Ice Palace Figure Skating Club, was a member of the Junior League, and was a fundraiser for the Festival of Trees. o Ted Lawson has practiced law since 1999 and is currently in-house counsel for a major insurance company. He has provided a wide range of legal services in the areas of personal injury, commercial and securities litigation, and in the handling of general civil and criminal matters at a variety of levels of court. Mr. Lawson also has experience in mediation and judicial review and is a member of the National Legal Committee. o Sandra LeBlanc* has held various directorships, executive management and in-house consultant positions in private and public international companies. Her expertise is for the acquisition of commercially viable international assets. Ms. LeBlanc has worked on projects throughout the Middle East, North and West Africa, Latin America, the former Soviet Union and Russia. Ms. LeBlanc is a Director and Vice President of Corporate Development with BURJ Petroleum Energy Corporation. Her professional affiliations include the President of the Canadian Arab Business Council, Joint Economic Commission Kingdom of Saudi Arabia, Association of International Petroleum Negotiators and a number of volunteer roles domestic and international. o Patricia Mackenzie of Edmonton has participated in business, government, on boards and in community organizations. This includes Assistant Vice President, Environment, of Telus Corporation; Counselor, City of Edmonton from 1986-1995; Chair of the Alberta Commission on the Future of Learning; and Vice Chair, Alberta Blue Cross. She is a former President of AUMA (Alberta Urban Municipalities Association) and served on the Federation of Canadian Municipalities (FCM) where she chaired a number of committees. Ms. Mackenzie holds a designation of ICD.D from the Institute of Corporate Directors. o Ellen-Ann O'Donnell* is an experienced family lawyer and mediator. Her practice encompassed Alternate Dispute Resolution methods including Collaborative Law, mediation and negotiation. She regularly participated in Judicial Dispute Resolutions and arbitration. She is experienced in all levels of the Alberta Courts and was a Dispute Resolution Officer with the Alberta Court of Queen's Bench from 2001 to 2006. Ms. 2011 Annual Report Page 7
O'Donnell currently sits on the Board of Directors for the Hospice Calgary and is a former president of the Board of Directors of the Elizabeth Fry Society.
u Lynn Parish has experience in the practice of law and in mediation and arbitration. Administrative tribunal experience includes as a member and Chair of the City of Edmonton Subdivision and Development Board and a Hearing Chair at the Appeals Commission of the Workers Compensation Board. Ms. Parish is also a lecturer in the Faculty of Law at the University of Alberta in the area of Client Counselling and Interviewing. She has direct experience as a mediator with Alberta Municipal Affairs, Alberta Justice and the Civil Claims Mediation Program.
o David Rolfe graduated from the University of Calgary with a Masters degree in Clinical Social Work. His career with Children's Services gave him the opportunity to work extensively with various levels of Law Enforcement. Mr. Rolfe also has experience with a variety of boards and panels, including current appointments to the Provincial Person's With Developmental Disabilities Appeal Panel and the Southern Alberta Dependant Adults Appeal Panel.
o Robert Johnson received a Masters of Science in Social Work from the University of Tennessee. He has considerable experience participating on governance boards such as the John Howard Society, Youth Volunteer Corps of Canada, Alberta College of Social Workers, and Pathways Community Services. Mr. Johnson is currently a Community Member of the Incident Investigations Branch of Correction Service Canada. He taught Criminology at Mount Royal College and assisted the Knox County Sheriff in developing alternative prison programs in Tennessee.
0 Colleen Ryan is a lawyer and an adult educator, holding a Masters Degree in Adult Education. Ms. Ryan taught Law and Business Administration courses at NAIT and she recently finished a full time appointment with the National Parole Board. As a lawyer, Ms. Ryan practiced Criminal Law and Civil Litigation. Ms. Ryan has gained extensive experience in Administrative Law and has strong analytical and decision writing skills.
0 Gerald Smith* graduated from the University of Saskatchewan with degrees in Bachelor of Commerce followed by a Bachelor of Law. Mr. Smith has been practicing law since 1993, primarily in the area of civil litigation. He is currently working with a major insurance company as in-house legal counsel. Mr. Smith has appeared before a number of administrative tribunals at both the municipal and provincial level.
*appointed in 2011
FINANCIAL
Financial management of Board matters is coordinated through the Corporate Services Division of Alberta Solicitor General and Public Security. The Board office is responsible for administering its operating budget and is subject to accountability for Board expenditures through the normal government budgetary and expenditure review. Financial records of the Board are available for public review in the same manner and to the same extent as are other 2011 Annual Report PageS
public service expenditure records. The Board's operating budget for the fiscal year April 1, 2011 to March 31, 2012 is $781,000. As of December 31, 2011, the Board expenditures were $529,238. 2011 Annual Report Page9
STATISTICAL ANALYSIS
Table 1 Nature of Appeals
Filed By 2009 2010 2011
Appeal Filed: 83 48 39 I Unrepresented Appellants 26 26 26 I Appellants Represented by Counsel 57 22 13 I I Breakdown: I Public Complainants 79 40 35 I Officer Appeals 4 8 1 I Peace Officer Appeals 0 0 3 I _j . - . ··L-• ~ --- . -· . - ·- . -- .. ·-
Table 2 Location of Appeals Filed
- . ·-
Location 2009 2010 2011
Calgary 12 13 6 Edmonton 68 30 22 Lethbridge 1 1 5 Medicine Hat 1 1 2 Cam rose 1 1 Other 0 2 4
Total 83 48 39 2011 Annual Report Page 10
Table 3 Summary of Hearings
.. ·- . 2009 2010 2011 I Number of Sitting Days 58 1481 84 '
Preliminary Applications I Allowed 6 6 3 I Denied 2 4 2 I I Preliminary_Applications Concluded 8 10 5 I I I Appeal Dispositions: I Allowed: Ret'd for Hearing/Re-investigation 8 4 3 I Penalty Varied 1 0 2 I Total Allowed 9 4 5 I I Dismissed: i
Upon Hearing 19 11 35 I Lack of Prosecution 0 0 1 Lack of Jurisdiction 5 8 5 s. 43 Review (frivolous, vexatious) 0 1 4 ' Withdrawn/Abandoned 32 33 12 Total Dismissed 56 53 57
Total Appeals Concluded 65 57 62 I
. . - - . . .. - ~. .. -- -- .----J
includes concurrent hearings conducted by the Board 2011 Annual Report Page 11
Table 4 Summary of Allegations Identified During Appeal Hearings
Description of Allegation 2009 2010 2011 I I Unlawful/Unnecessary Exercise of Authority (UUEA) I I - excessive force 10 9 16 I - unnecessary exercise of authority 17 12 21 (i.e., unlawful arrest, detainment, search) I Total 27 21 37 I I Discreditable Conduct I - rude/abusive language 1 4 1 I' - inappropriate conduct 10 9 18 I - differential treatment (prejudice or 4 6 2 bias) I I Total 15 19 21 I I I ' Neglect of Duty I I - failure to conduct a proper 15 4 9 I
investigation I - failure to provide assistance (ie., 2 I medical attention) 0 0 - failure to Charter or advise right to 2 I' contact counsel 1 2 I Total 16 6 13 I i Deceit 6 2 2 I I Corrupt Practice 1 0 0 I Insubordination 0 3 14 I I Breach of Confidence 2 2 4 ! TOTAL 67 53 91 I - -- - - .. -- --- J 2011 Annual Report Page 12
SUMMARY OF 2011 BOARD JUDGMENTS
The following is a summary of application and appeal hearings conducted by the Board in 2010. Complete decisions may be found on the Board's website at: www.solqen.qov.ab.ca//erb. Appeals that have been either abandoned or withdrawn are not included in this section.
legend of Abbreviations:
EPS Edmonton Police Service EPC Edmonton Police Commission EPA Edmonton Police Association CaPs Camrose Police Service CPS Calgary Police Service CPC Calgary Police Comission LRPS Lethbridge Regional Police Service MHPS Medicine Hat Police Service CTLA Criminal Trial Lawyers' Association
the Act Police Act PSR Police Service Regulation
Standard of Review
The Standard of Review applied by the Board is established through decisions issued by the Alberta Court of Appeal in Newton v Law Enforcement Review Board 2010 ABCA 399 ("Newton') and Pelech v Law Enforcement Review Board 2010 ABCA 400 ("Pelech'). The Court made significant findings with respect to the nature of appeals to the Board and the manner in which the Board is to approach a Presiding Officer's decision when a disciplinary hearing has been conducted, and in appeals from a decision of a Chief to dismiss a compliant without a hearing.
Board decisions are primarily made based on the information that was before the Chief when he made his initial decision. Deference will be owed to the Chief where the primary issue is factual and relates to the adequacy of the evidence. The standard of review to be used by the Board will be one of reasonableness. Unless the Chiefs investigation was compromised in a way that calls into play the Board's mandate to provide civilian oversight, the Board will not intervene.
The Board will rely on the factors referred in Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, 2008 sec 9 as to what constitutes a reasonable decision. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process. In reviewing the information that was before the Chief, the Board will determine whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. 2011 Annual Report Page 13
APPLICATIONS/PRELIMINARY APPLICATIONS
No. 003-2011 - G. Orleski v EPS Application Denied
The Appellant sought disclosure of notes that were made by a detective during a supervisory review with the Respondent.
Supervisory reviews are conducted early in the complaint process and in many cases the complaint can be informally resolved to the satisfaction of the parties. However, this was not the case in this complaint.
In order to facilitate the utilization of alternate methods of resolving complaints in good faith and off the record, such as the Supervisory Review, the Board did not order disclosure of the notes taken by any of the participants during the informal proceedings, nor did the Board permit any questioning relating to any details of such attempts to settle the complaint.
No. 004-2011- Cst. S. Berube v. EPS Application Denied
The Appellant appealed the decisions and the penalty imposed by the Presiding Officer from three separate disciplinary hearings. Each matter was heard separately; however, a common penalty was issued by the Presiding Officer.
The Board heard submissions on the following applications: (a) how this preliminary hearing should proceed; (b) if the police service failed to comply with s. 7 and s. 10 of the Police Service Regulation (the "PSR'J in charging the Appellant, and if so, would the Board quash the convictions and penalty of the Presiding Officer; (c) how the main hearing should proceed and (d) who should proceed first.
With respect to s. 7 of the PSR, there is a time limit of six months from the time a complaint is made to when an officer can be charged with contravention under s. 5 of the PSR. If circumstances warrant, a police commission may extend any one or more of the time limits prescribed in s. 7. The Board ruled that the manner in which the Commission granted the extension established that the Commission reviewed the application. It is not within the jurisdiction of the Board to determine the quality of the review conducted by the Commission. The application regarding s. 7 was dismissed.
Section 10 of the PSR applies to statements made by an officer against whom is a complaint is made, and speaks to the admissibility and the use of the statement that an officer makes to investigators. Section 10 does not mandate disclosure of a complaint at the commencement of an investigation. The requirements are met as long as the officer is provided disclosure prior to making a compelled statement and before the hearing. Given the evidence before the Board, there was no indication that the Appellant's rights had been violated. The application concerning s. 10 was also dismissed. 2011 Annual Report Page 14
The Respondent brought a cross-application with respect to the "de novo" aspect of the hearing. They submitted even if the Board had jurisdiction to hold a hearing de novo, it does not mean viva voce evidence should be allowed. The Board was cognizant of the fact that the Appellant concentrated on having access to an appeal de novo during his disciplinary hearing. However, the Court of Appeal decisions in Pe/ech and Newton changed the long established practice of the Board regarding the hearing of appeals. Consistent with the new position established by the Court of Appeal, the appeal will be heard based on a review of the record of the disciplinary hearing before the Presiding Office. The Appellant will proceed first in making submissions as to why the Board should find the Presiding Officer's decision to be unreasonable or if the decision should be varied having consideration to the standard of review to be applied to that particular decision. In the event an application is successfully made for the consideration of additional evidence, the successful applicant will lead that additional evidence at the appeal hearing.
No. 007-2011- F. Michaud v. EPS Application Allowed
The Respondent Chief brought forward an application that the two appeals filed by the Appellant were an abuse of process and ought to be dismissed.
Counsel for the Chief of Police argued that while the complainant was a civilian, it was apparent that the real complainant was a member of the EPS, who was using the civilian as a way to file his complaint.
Counsel for the Appellant argued that the civilian was indeed the complainant in both appeals and was a proper complainant as evidenced in her letter of complaint.
The officer had been involved in a number of legal proceedings with the Chief of Police. During the officer's testimony at the disciplinary hearing, he acknowledged that the public complainant was his mother-in-law and that the reason his mother-in-law filed the complaint was to ensure that the matter could be appealed to this Board.
The Board noted the definition of a "public complainant" in Police Act excluded a member of a police service, and therefore, they cannot appeal the dismissal of their complaint to the Board.
The Board found that the Appellant's motivation was to advance the interests of her son-in-law, not her own interests or those to the public at large. The appeals were dismissed.
No. 015-2011- CTLA v. EPS Allowed
The Respondents brought forward an application on the basis that it was an abuse of process to continue with the appeal and that the appeal ought to be dismissed.
In September 2008, the Board issued a decision in the initial appeal. The Respondents filed an appeal with the Court of Appeal and pursuant to the Court's direction the matter was returned to the Board.
Counsel for the Respondent submitted the stress and anxiety experienced by the Respondent during the process of two very public hearings had been significant, both professionally and 2011 Annual Report Page 15
personally. Counsel argued that despite the fact that the finding was appealed, the penalty imposed by the Board had been served and that it would be extremely prejudicial to the Respondent to re-try him for that conduct and to re-penalize him in any way.
The Chief submitted the Board should not conduct any further proceedings with respect to this appeal. The events took place over six years ago and the cumulative delay arising from all proceedings was inordinate.
The Appellant submitted the Board had previously found the Respondent had engaged in Unnecessary or Unlawful Exercise of Authority. That finding was quashed, solely as a result of the Court's determination that the Board erred by conducting a de novo hearing and failed to consider the record of the hearing before the Presiding Officer, and failed to apply the appropriate standard of review.
The Board found that the public interest had been served in this matter by the detailed discussion of issues in the various levels of proceedings that have been pursued. The Board noted the concerns of the Appellant, but further noted that the Respondent had served the disciplinary penalty originally imposed by the Board. In the circumstances, the Board was satisfied that it was not in the public interest to continue with the appeal.
No. 026-2011 - D. Lloyd v. EPS Allowed in Part
The Appellant brought forward a preliminary application to admit additional evidence and to determine which materials constitute the "record" to be considered by the Board.
The Appellant argued that the contents of the record should be limited to only those specific items that the Chief actually saw when he made the final decision, and that it would be necessary to bring a fresh evidence application for any part of the file that the Chief did not look at.
In Pelech, the Court of Appeal stated the review by the Board would be conducted primarily on the record, or "the information that was before the Chief when he made his initial decision."
The parties accepted that the Chief is entitled to delegate his responsibilities of the investigation under the Act. The Chief may physically only have in his possession a few documents and may only have seen a portion of the file, but he is entitled to rely upon the expertise and advice of the investigator and staff who review the results of the investigation and to whom he has delegated the investigative duties. The Board held that the record includes all materials that were before the Chief and his investigative team.
There was one document referred to a number of times in the investigative file; however was not provided in the record. This document appeared to offer a degree of justification for the conduct of the officers and was nonetheless considered by the investigators. Accordingly, the document should be included as part of the record. The Board ordered a copy of the document be provided to the Appellant and the Board.
The Appellant sought evidence beyond the record to be admitted. The threshold for the admission of evidence is high. The Palmer principles do not specifically govern the admission of other evidence beyond the record, but they nonetheless are a reasonable guideline that will 2011 Annual Report Page 16
often be of assistance in determining whether a complainant has demonstrated a sufficient prima facie case.
The Appellant had not established a prima facie case to permit the admission of evidence beyond the record. The evidence sought to be adduced beyond the record was available at the time the decision was made and did not pass the test that if believed it could reasonably, when taken with the other evidence adduced, be expected to have affected the result.
SECTION 43(11) REVIEWS
No. 006-2011 - J. Andrews v EPC
The Appellant requested a review of the EPC's decision to uphold the Chiefs recommendation that his complaint be dismissed as frivolous and vexatious.
The Board found the EPC followed the appropriate procedures within its jurisdiction and came to a reasonable conclusion regarding the recommendation before it. The EPC demonstrated it had given thorough consideration to the Chiefs recommendations, as well as to the complaint letters authored by the Appellant. The EPC clearly explained its reasons for accepting the recommendation of the Chief and provided those reasons to the Appellant, including its use of the legally applied definitions of frivolous and vexatious complaints.
The Board found the decision of the EPC was reasonable in concluding the complaints against the officers were frivolous. The Board also affirmed the decision of the EPC, that the Chief did not have jurisdiction to consider the Appellant's complaint against one officer because the complaint was made more than one year after the disputed events occurred
No. 009-2011 - H. Workman v EPC
The Appellant requested a review of the EPC's decision to uphold the Chiefs recommendation to dismiss her complaint as vexatious.
The Board reviewed the material and agreed that the conclusion of the EPC was reasonable and well explained in their letter to the Appellant. While the Appellant was unsatisfied with the EPC's conclusion, the Board was satisfied that the decision was both reasonable and correct, and made only after a thorough review of the action and steps taken.
The EPC and the Board considered the history of the Appellant engaging in the complaint process, of making unsubstantiated complaints against various officers and the Appellant's refusal to voluntarily consider the services and resources offered by a number of government and social service agencies.
The Board conducted a review of the written materials and determined that the EPC's decision was reasonable and correct. The Board also confirmed that the Chief of Police did not have jurisdiction to consider the Appellant's complaint that was made more than one year after the disputed events occurred. 2011 Annual Report Page 17
No. 029-2011 - G. Caron v EPC
The Appellant requested a review of the EPC's decision to uphold the Chiefs recommendation to dismiss his complaint as frivolous.
The Board conducted a review of the written materials and determined that the EPC's decision was reasonable, and was well and fully explained to the Appellant. The Board agreed that the nature of the complaint by the Appellant can only be viewed as trivial.
No. 045-2011- T. Cook v LRPC
This matter deals with the decision of the LRPC dismissing the Appellant's complaint as frivolous.
An investigator in the Professional Standards Unit sent two letters to the Appellant requesting a meeting to provide further details of his complaint. The Appellant did not provide a response and the investigator followed up by contacting the Appellant by telephone. The conversation ended with the investigator hanging up on the Appellant.
The Chief wrote to the Chair of the LRPC requesting the Appellant's complaint be dismissed as frivolous. The Appellant was advised in writing from the Chair that the Chiefs request to dismiss the complaint was approved.
The Board reviewed the material provided and considered the history of the Appellant engaging in the complaint process and his refusal to engage in a process of resolving the issues. The Board affirmed that the decision of the LRPC was reasonable and well explained to the Appellant.
APPEALS ALLOWED OR ALLOWED IN PART
No. 005-2011 - Cst. R. Humphries v CPS
Allegations: Excessive Use of Force x 2
The Appellant appealed the finding and the penalty imposed by the Presiding Officer in relation to two charges of excessive use of force.
At the outset of the hearing, the Appellant brought forward a number of preliminary issues. The Board was required to determine whether to conduct the appeal on a de novo hearing basis without deference to the Presiding Officer's decision. The Appellant also submitted that the burden of proof should not be on the cited officer simply because he appealed the decision, but on the accuser to prove the allegations and as such, the accuser should present first. The Appellant further submitted that the Chief of Police lost jurisdiction to proceed with the matter and that the allegation ought to be dismissed as the original complainant withdrew her complaint during the disciplinary hearing. 2011 Annual Report Page 18
Counsel for the Chief submitted that deference must be given to the Presiding Officer's decision. Counsel also submitted the Appellant must first challenge the decision being appealed to prove that the Presiding Officer came to an incorrect conclusion. Counsel submitted that the original complainant does not control whether charges are laid against the officer; the charges ultimately derive from the investigation, not from the complainant.
The Board concluded the hearing would proceed on a de novo basis. The Board further concluded the burden is on the CPS to prove the charges and then the Appellant would be able to defend against the charges.
The Board determined that the Chief did not lose jurisdiction to proceed with the matter. If the original complainant was absent from the disciplinary proceedings or if the complainant withdraws the allegations, it does not nullify the hearing.
The Chief did not call any evidence and the case giving rise to the charges against the Appellant had not been made out. The charges against the Appellant were dismissed and the penalty imposed was vacated.
No. 010-2011 - Cst. N. Ralston v EPS
Allegations: Discreditable Conduct
The Appellant appealed the decision of the Presiding Officer in relation to a charge of discreditable conduct arising from executing a search warrant.
During the search of a condominium unit for firearms, the Appellant accidently knocked two of the three empty toilet rolls, which had been on the top of the tank, into the toilet. The Appellant stated he had holes in his gloves so he made a decision to leave the rolls in the toilet.
The Presiding Officer found the Appellant guilty for having placed items in the toilet and that his actions were careless rather than intentionally malicious. The Presiding Officer stated that dropping items in the toilet bowl and not picking them up, is inconsistent with the policy and standards of reasonably competent police officers.
The Presiding Officer imposed a Reprimand, the minimum penalty required by section 17 of the PSR, to remain on the Appellant's record for a period of five years.
The Board affirmed the Presiding Officer's finding of guilt. However, Board varied the penalty imposed and directed the EPS to remove the reprimand from the Appellant's record and to replace it with an Official Warning. 2011 Annual Report Page 19
No. 021-2011 - F. Cerato v CPS
Allegations: Excessive Use of Force Unlawful Exercise of Authority Discreditable Conduct
The Appellant filed complaints of excessive use of force, unlawful or unnecessary exercise of authority and discreditable conduct during his arrest.
At the request of bar staff, the Respondent attended the Appellant's residence to discuss an unpaid bar tab. The Appellant appeared intoxicated, and was belligerent and verbally abusive. The Respondent interpreted the Appellant's actions as threatening and took the Appellant to the ground, resulting in severe injuries.
The Chief directed an investigation, which resulted in the Respondent being criminally charged with assault causing bodily harm. The Respondent was acquitted on the charge due to conflicting evidence. The Chief ordered the matter to a disciplinary hearing and the Respondent was charged with two counts of Unlawful or Unnecessary Exercise of Authority and one count of Discreditable Conduct.
Prior to the disciplinary hearing, the Chief reversed his decision to proceed with the charges and dismissed the allegations. The circumstances and the facts leading to the reversal of the Chiefs original decision were not identified.
The issue to be determined was whether the force found to have been used was excessive, and if so, permits the jurisdiction of civilian oversight to be implemented by the Board.
The Board concluded that the decision of the Chief to reverse his original decision and to subsequently dismiss the first two charges of the Respondent was not reasonable. The Board found that "certain circumstances and facts brought forward in the interim" did not clearly identify or provide sufficient reasons for the Chief to justify the reversal of his original decision.
The Board confirmed the decision of the Chief to dismiss the allegation of Discreditable Conduct was reasonable.
The Board directed a Disciplinary Hearing be held on two counts of Unlawful or Unnecessary Exercise of Authority where the Respondent exceeded his authority when he arrested the Appellant and that excessive force was used when arresting the Appellant.
No. 023R-2011 - R. and N. Persaud/S. Jetha v EPS
Allegations: Excessive Use of Force Unlawful Exercise of Authority Insubordination Discreditable Conduct
The Appellants filed separate complaints of excessive use of force, unlawful and unnecessary exercise of authority, insubordination and discreditable conduct when their vehicle was 2011 Annual Report Page 20
improperly targeted. The Acting Chief dismissed all of the allegations. The Appellants alleged their complaints were not adequately investigated.
Members of the Edmonton Drug Squad had under surveillance a suspected a drug trafficker. Visual contact of the suspect vehicle was lost for a brief period of time. Visual contact was reacquired with what was thought to be the suspect vehicle. The Drug Squad believed they had witnessed a drug transaction and proceeded to arrest the Appellants with their firearms drawn. The Appellants were handcuffed and detained. During the takedown damage was done to their vehicle. The Drug Squad realized they had arrested the wrong individuals and had targeted the wrong vehicle. The Respondents apologized to the Appellants, assured that the Service would pay for all of the damages incurred to the vehicle and drove the Appellants' vehicle to his residence. There was a discrepancy between the recollections of the Respondent and Appellants on what happened regarding officer identification at the residence when the vehicle was dropped off.
The Board indicated it is incumbent on police to ensure they have the correct targets. Before unleashing the full force of a police Tactical Team, it must be ascertained that the object of the takedown is in fact the targeted suspects, and not unsuspecting innocent citizens going about their business. The loss of visual contact, however brief, should have raised concerns to ensure the identity of such a non-descript vehicle, such as the targeted vehicle, be absolutely confirmed. Concern over the identity of the targeted vehicle was raised by the Tactical Team as they were initiating the takedown, but were assured it was the correct vehicle.
As this appeal involves both use of force on innocent citizens and an unacceptably inadequate investigation, it was unreasonable for the Chief to have reached the decision he did. The Chief concluded that it was just an unfortunate error based on the information that was available.
The Board directed that the Chief have this matter investigated again.
No. 027-2011 - S. Boychuk v EPS
Allegations: Discreditable Conduct Neglect of Duty
The Appellant filed complaints that the Respondents engaged in inappropriate and inconsistent behavior, and failed to investigate all of her complaints. The Appellant alleged that the Respondent refused to produce his notes after she requested to see them. She also alleged that she was spoken to in a condescending and unprofessional manner in a telephone conversation with one of the Respondents.
The Appellant has had ongoing difficulties with her neighbors, which has resulted in numerous complaints to the police and several responses by EPS. Such complaints included garbage being thrown into the Appellant's yard, loud music from the neighbors, neighbor's dog barking and defecating on her property.
This appeal involves a factual dispute and accordingly the role of the Board role was to determine if the decision by the Chief falls within the parameters of reasonableness. 2011 Annual Report Page 21
The Board concluded the Chiefs decision was reasonable in dismissing the complaints related to the refusal to produce notes and the manner in which the Appellant was spoken to over the telephone. The Board found that the Record mirrored the information the Appellant orally presented to the Board.
At the appeal hearing counsel for the Chief acknowledged that four complaints that may have occurred within the one-year period prior to the Appellant's letter of complaint were not investigated. The Board directed the Chief to investigate all of the complaints that occurred within the one-year period and to provide the Appellant with a disposition letter regarding his decision on each complaint.
APPEALS DISMISSED
No. 001-2011 - H. Laschuk v EPS
Allegations: Excessive Use of Force Unlawful/Unnecessary Exercise of Authority Neglect of Duty
The Appellant filed complaints of excessive use of force, unlawful exercise of authority and neglect of duty when police intervened during his removal from a concert at Rexall Place.
The Respondents noticed and responded to a physical altercation between the Appellant and Northlands Security staff. The Respondents identified themselves as EPS officers to the Appellant and attempted to de-escalate the confrontation and obtain cooperation from the Appellant. The Respondents used physical force by applying pressure on the Appellant's ear and pulling his thumb back without success. The Appellant was advised that he would be pepper sprayed if he did not cooperate. The Appellant remained uncooperative and pepper spray was administered to the Appellant. The Appellant was then handcuffed and led to a holding area.
In reaching its decision, the Board focused on the evidence presented as to the actions of the Respondents and the situation they faced. The Board concluded that the Respondents acted in a professional and common sense manner.
The Board, however, made a collateral comment that EPS policy was not followed in the deployment of OC spray. The Board found the actions of the Respondent, although not in accordance with EPS policy, were appropriate and prudent given the circumstance.
No. 002-2011 - E. Shawesh v EPS
Allegations: Excessive Use of Force Neglect of Duty Discreditable Conduct
The Appellant filed complaints alleging that the Respondents used excessive force by pushing him into a police car, shutting the door on his legs and strangling him. He further alleged that 2011 Annual Report Page 22
the officers dumped him on the ground after the incident and neglected to provide him with medical assistance.
The Appellant had an altercation with security guards and was being escorted from the Edmonton Public Library by building security. The Respondents, who were on scene responding to another call, observed Community Peace Officers were in the process of arresting the Appellant for Jaywalking. The Appellant was then placed into the custody of the Respondents. He was handcuffed and transported to the downtown police station.
The Appellant alleged that when he was put into the police car, the door was slammed on his leg causing him injury. He also stated that one of the Respondents choked him. The Appellant was taken to the hospital in a police vehicle.
The Record contained evidence and policy documents justifying the actions of the Respondents in dealing with this difficult situation. The Chief outlined the investigative process, taking into consideration the interviews and reports of the security officers, the Community Peace Officers, and the Respondents. The Chief referred to medical evidence contained in the Record, as well as audio recordings of the Appellant's calls to 911.
The Board concluded that the Chiefs disposition letter indicated a thorough review of the evidence collected, the appropriate legislation and policy, and the investigating officer's summary of the reasons regarding his final recommendation. The Board concluded there was no indication that the Chiefs decision was unreasonable.
No. 008-2011 - A. Auger v EPS
Allegations: Excessive Use of Force Unlawful Exercise of Authority x 2
The Appellant alleged he was subjected to excessive force, an unlawful search and that his rights were breached when he was arrested and detained on a number of charges. In particular, the Appellant complained that his vehicle was unlawfully searched at the site of his arrest, and upon arrival at the police station, he was unlawfully strip searched. The Appellant alleged that he was permitted access to a phone only after he protested that that he was not properly informed of his rights. He also alleged that he was physically attacked by a male officer and struck twice in the left eye, handcuffed to a bar on the floor of a holding cell and left there bleeding profusely until the shift change next morning. The Appellant was taken to hospital where he received required surgery for a fractured orbital bone.
The Chief concluded the allegations and the sequence of events the Appellant articulated in his complaint and subsequent interview did not support the evidence from the video recordings or from the witness officers. The Appellant was properly informed of his right to counsel; the delay in providing the Appellant with access to the telephone was a result of his own actions. The force used by the Respondents to restrain the Appellant was reasonable given his aggressive and destructive behavior. The Chief also noted that the Appellant was examined by the EMS but that he refused to be transported to hospital by EMS.
The Board was asked to address whether or not the Chief was obligated, pursuant to Section 46.1 of the Police Act, to notify the Solicitor General of any serious injury and whether the 2011 Annual Report Page 23
matter should have been referred to the Minister of Justice, if the officer contravened an Act of Parliament. There was no complaint made against the Chief and the Board did not receive an appeal of any conduct against the Chief. As such, the Board does not have jurisdiction to hear the matter of the Chiefs inaction to advise the Solicitor General of any serious injury. As the Board found the Chiefs conclusion was reasonable in that no excessive force was used by the officers against the Appellant, there was no basis to refer the matter to the Minister of Justice and Attorney General.
The Board concluded the Chief's disposition was reasonable - the investigation was thorough and there was no error of law, as submitted by the Appellant.
No. 011-2011 - M. Nammo v CPS
Allegations: Neglect of Duty
, The Appellant alleged the Respondent failed to conduct a thorough and complete investigation. The Appellant filed a criminal complaint arising from a court proceeding where he believed a witness committed perjury. The Appellant claimed the witness was coached by a defence lawyer, and alleged obstruction of justice by the defence lawyer, the insurance company, the Provincial Court Judge and the Justice of the Court of Queen's Bench.
The Respondent investigated the Appellant's allegations and concluded that charges were not warranted. The Respondent conveyed this to the Appellant and advised that there would be no further investigation.
The Appellant raised wide and sweeping allegations of misconduct at many stages of the events leading up to the complaint, and continued when he addressed the investigation of the complaint and how the disposition letter of the Chief of Police was worded. The Board found that issues were raised respecting the integrity of the process. As a result, the issue of civilian oversight by the Board is required to be at the forefront in this appeal.
The Board found no indication that there was an error that would affect the standard of review in this case. Contrary to the submissions of the Appellant, the Board did not agree that the investigation was flawed, tainted, or negligent in any manner and finds there is no evidence on the record to suggest that it was. Even with the higher standard of review present in this appeal, the Board found that the Chief followed the appropriate procedures within his jurisdiction and came to a proper conclusion regarding the recommendation resulting from the investigation before him. The Chiefs decision demonstrated he had given thorough consideration to the recommendations before him, as well as the initial letters of complaint authored by the Appellant.
The Board concluded that the Chief has before him sufficient investigative material before him to render his decision. The Board was satisfied that the Chief adequately conveyed his reasons in a transparent and intelligent manner to the Appellant, and that procedural fairness was not compromised. 2011 Annual Report Page 24
No. 012-2011 - K. Lonsdale v CPS
Allegations: Neglect of Duty x 2
The Appellant filed complaints alleging the Respondent neglected to diligently perform his duties as a police officer and that he failed to attend a court trial date.
The Appellant was involved in a collision where the other driver was impaired and subsequently charged. When the matter was called for trial, the Respondent did not in attend as he had failed to enter the date into his calendar. An adjournment was not granted as the matter had been adjourned on two previous occasions. The criminal matters were subsequently withdrawn.
The Chief issued an Official Warning to the Respondent for Neglect of Duty, which was to remain on his file for a period of three years.
The Appellant appealed the penalty imposed upon the Respondent stating that a simple warning was not enough and the penalty should have been harsher.
Counsel for the Respondent submitted that an Official Warning placed on the Respondent's file for three years was a significant penalty, as it governs his rank and ability to transfer for three years.
The Board was of the view that the decision rendered by the Chief of Police was reasonable and that there were no grounds for the Board to interfere with the decision on punishment imposed by the Chief.
No. 013-2011- Criminal Trial Lawyers' Association (the "CTLA") v EPS
Allegations: Deceit
The CTLA alleged the Acting Chief was deceitful when he stated in his disposition letter that one of the Appellant's complaints that members wore offensive t-shirts had already been investigated. The CTLA submitted that particular statements made in a letter from the Acting Chief were false, misleading or inaccurate.
The Acting Chief submitted that he had no intention of misleading the CTLA, the EPC or the public; this was simply a misunderstanding about the number of alleged incidents of members wearing offensive t-shirts. The evidence demonstrated that the Acting Chief realized well after his letter that there were actually two alleged incidents involving members wearing offensive t shirts.
The EPC determined that the Acting Chief had an honest misunderstanding, which did not constitute misconduct and did not meet the requirements for referring the matter for further investigation.
The Board dealt with a jurisdictional issue regarding whether the Board had jurisdiction to review the decision of the EPC. The Board found that the EPC properly took jurisdiction over the CTLA's complaint, even though the complaint was made when the Acting Chief was no longer in that capacity. The remedies available to the Board were to either affirm the decision of 2011 Annual Report Page 25
the Commission, or to direct the Commission to request the Minister to direct or request another police service to investigate the complaint.
The Board found that the Respondent had honestly misunderstood which incident was being referred to in the complaint. The Board further found that the EPC had considered the concept of an honest misunderstanding versus a dishonest, deceitful or negligent response, and made its decision accordingly. In the Board's view, this conclusion was not unreasonable.
No. 014-2011- J. Cartlidge v EPS
Allegations: Excessive Use of Force Discreditable Conduct Neglect of Duty
The Appellant filed complaints alleging excessive use of force, use of racial slurs and an inadequate investigation.
The Appellant and another individual had been drinking and became involved in an argument near a convenience store. Witnesses stated prior to the arrival of the police, the storeowner requested that both individuals leave. This led to a verbal and physical confrontation between the storeowner and the Appellant.
The Respondents arrived and found the Appellant intoxicated and belligerent. The Appellant was arrested and given instructions to get down on his knees and then down with his face on the ground. The Appellant stated he complied and once he was on the ground, one of the Respondents took his knee and smashed the Appellant's face into the asphalt. The Appellant further stated the officers used racial slurs.
The Respondents stated that the Appellant resisted during the arrest, which resulted in using force to take the Appellant to the ground and control him. The Respondents denied using any racial slurs.
The Board was concerned that a potentially significant piece of evidence - a video of the cells where the Appellant was detained, was lost prior to the conclusion of the police investigation. This resulted in no independent evidence to support the allegation of excessive use of force by one of the Respondents. The Board was left with very little independent evidence; however, that limited independent evidence supported the testimony of the other Respondent.
After reviewing the record, the Board found that the investigation reflected the events that occurred and the behavior of the Appellant. This information supported the Respondents' reports describing their involvement with the Appellant.
The Board concluded that the investigation was not tainted, flawed or grossly inadequate and that the standard of review would focus on the acceptability of the particular result in this matter. The investigation gathered the necessary information for the Chief to reach a reasonable decision which the Board upheld. 2011 Annual Report Page 26
No. 016-2011- M. St. Pierre v EPS
Allegations: Breach of Confidence Discreditable Conduct
The Appellant filed complaints arising from an investigation the Respondent conducted into her claims that she was being harassed and that the property management company was threatening to evict her from her residence. The Appellant alleged the Respondents incorrectly concluded that her dispute with the property management company was a civil matter. The Appellant also alleged that her health status was inappropriately disclosed to the property management company and that the Respondents were rude and communicated with her in a condescending manner.
This appeal deals primarily with a factual dispute. Therefore, the Board's role will be to determine if the Chiefs decision falls within the parameters of reasonableness. The Board reviewed the record that was before the Chief and supported the conclusion reached by the Chief.
The Respondent's assessment was correct that the dispute between the Appellant and the property management company was strictly a Landlord and Tenant matter, and not a criminal offense. The record demonstrated the Respondent did not recall questioning the Appellant's health status, but he did not discount the possibility that he may have asked the questions she alleged. The Chief viewed the Respondent's concern for the Appellant's health as a legitimate concern because of the previous contacts and the nature of allegations she had made in the past. There was nothing in the record that would support the Appellant's allegation that she was harassed.
The Board noted that the Respondent took the necessary steps to explain his conclusion to the Appellant and made himself available to answer any future inquiries she had. The Board was satisfied that the decision of the Chief was reasonable.
No. 017-2011- J. Gibbs v EPS
Allegations: Breach of Confidence
The Appellant, a former EPS member, filed complaints regarding her exit interview. The Appellant was in the process of applying to another police service and was advised that background checks would be conducted regarding her application to their organization. The Appellant alleged that the Respondents improperly communicated information in relation to her past employment, which resulted in her application being declined.
The Appellant's concern was that the investigation was inadequate and the Respondents should have kept notes. The Board was not provided any administrative policy that would require the keeping of notes in this or any other administrative process. The Board could not conclude from the evidence provided that the investigation was compromised in any way and did not consider it necessary to apply its oversight role. This appeal primarily deals with a factual dispute and the standard of review applied by the Board was to be reasonableness. 2011 Annual Report Page 27
The Board noted the Appellant's evidence suggested her belief was a "gut call". The Respondent acknowledged her obligations of confidentiality by requesting a copy of the consent form, signed by the Appellant, before speaking with the other police service regarding Appellant's job performance. There was no evidence presented to support the allegations that information was improperly disclosed. The Board affirmed the decision of the Chief.
No. 018-2011 - J. M. v. EPS and Cst. S.M. v EPS
Allegations: Discreditable Conduct x 3
Appellant J.M. appealed the finding and the penalty of the Presiding Officer on three charges of discreditable conduct against Cst. S.M (the Respondent). Cst. S.M. also appealed the finding and the penalty issued in relation to the second charge.
The three charges under the PSR were: the Respondent assaulted his spouse, J.M.; the Respondent operated a motor vehicle after consuming a large amount of alcohol; and the Respondent conducted searches on the Appellant using the police database. The Presiding Officer found that the first charge was not proven; however, the second and third charges were proven and a reprimand was imposed on each charge. The Appellant did not agree with the Presiding Officer's decision on the first charge and found the penalties imposed on the remaining charges to be grossly inadequate.
The first charge involved a factual issue - whether the incident happened. The Presiding Officer had concerns that the Appellant did not report the incident sooner. He also noted that the incident was not mentioned in a subsequent assault report or in the divorce proceedings. In the absence of any other supporting evidence, the Presiding Officer made a reasonable decision in finding the offence not proven.
The second charge involves both a factual issue as well as a standard of conduct issue. The factual issue arises from conflicting evidence heard by the Presiding Officer related to the amount of alcohol consumed. The conduct issue arises from the nature of the allegation concerning the Respondent drinking and then driving. The Board relied on its own expertise but did not disregard the findings of the Presiding Officer. The Board concluded that the penalties imposed were within the range of reasonable outcomes.
With regard to the appeal on the penalties for the second and third charges, the Board considered this to be a standard of conduct issue. The Board relied on its own expertise; however, it did not disregard the findings of the Presiding Officer.
The Presiding Officer stated a preference for penalty before hearing submissions from the parties. Consideration was given to the Court of Appeal's decision in Wachtler, confirming unexplained lengthy delays could be taken into account at the penalty stage. The Board interpreted this as giving counsel the opportunity to address the issue of delay as the incidents occurred in 2001, the complaint was made in 2004 and Cst. S.M. was cited in 2009. The Board noted that the penalties imposed by the Presiding Officer were within the range of reasonable outcomes for the offences, particularly taking the issue of delay into account.
With respect to the Cst. S.M. appeal, the Board gave deference to the Presiding Officer in his evaluation of the witnesses that were heard at the disciplinary hearing, and his finding that Cst. 2011 Annual Report Page 28
S.M.'s evidence was less convincing. The Board was satisfied, based on the evidence and the application of the principles in Hassan, a reasonable person would have found the conduct of Cst. S.M. in driving after consuming alcohol likely to bring discredit on the police service. The Board found the Presiding Officer's decision within the parameters of reasonableness and it was confirmed.
No. 019-2011- P. Czapp v EPS
Allegations: Unlawful Exercise of Authority x 2 Discreditable Conduct
The Appellant filed complaints concerning an incident, which occurred at her resident relating to a 911-call that was terminated and investigated by the Respondents. The Appellant alleged the Respondents exercised their authority when it was unnecessary to do so by kicking in the bathroom door at the Appellant's residence, that the Respondent referred to her as a "loser" and that she was arrested without legal authority or justification.
The appeal was conducted prior to the Court of Appeal issuing decisions in Pe/ech and Newton where oral evidence was heard. With the consent of the parties, the Board decided this appeal would be based on an Agreed Statement of Facts and exhibits, as well as the oral testimony earlier admitted.
The primary issue in this appeal is factual and the Board concluded the standard of review will be reasonableness.
With respect to the Respondent kicking in the bathroom door, the Board was mindful of the testimony heard regarding the concerns associated with a person entering a closed room with hazards present. The Board was also mindful of the Respondent's evidence that his intention was to prevent the door from closing. With respect to the comment directed at the Appellant, the Respondent denied making such a comment, nor did the Board did not hear any evidence that such a comment was made, and the Appellant did not raise this issue in her interview with the investigator. With respect to the unlawful arrest, the Board noted the evidence from the paramedic suggested the Appellant was behaving in a loud and aggressive manner. The Appellant testified that she was hysterical and crying, and the Respondent described physiological signs that did not appear normal.
For the reasons stated above, the Board affirmed the Chiefs decision and found the concerns about the investigation were not sufficient to warrant intervention.
No. 020-2011- Det. B. Allen v. EPS
Allegations: Unlawful Exercise of Authority x 2
The Appellant appealed the finding of the Presiding Officer on one count of Unlawful or Unnecessary Exercise of Authority where he was unnecessarily detained and conducted a modified strip search of a citizen. 2011 Annual Report Page 29
The Appellant found the citizen smoking a marijuana joint and placed him under arrest for possession. The citizen was defiant and uncooperative. The Respondent transported the citizen to an EPS detachment in order to search for further drugs. The citizen was required to remove clothing but no physical contact was made between the Appellant and the citizen. The Appellant believed this to be a "modified strip search".
The Presiding Officer found the Appellant did not have objectively, reasonable and probable grounds; only a suspicion or "possible" grounds to believe that there were further drugs on the citizen.
The Board considered the findings related to the elements of the test in Golden, particularly the third element which stated that there must be reasonable and probable grounds to believe that a person is secreting weapons or evidence on their person that relates to the arrest; mere suspicion is insufficient. The Board found that the Presiding Officer's decision was reasonable, and properly articulated and applied both the test in Golden and the EPS Policy and Procedure Manual.
Note: The Appellant appealed the Board's decision to the Court of Appeal on the grounds that the Board erred in failing to find that the Presiding Officer failed to properly weigh the evidence. As of December 31, 2011, this matter remains before the Court of Appeal.
No. 022-2011 - D. Daniels v EPS
Allegations: Unlawful Exercise of Authority Discreditable Conduct x 2
The Appellant filed complaints of unnecessary and negligent behavior, and unnecessary damage to his property. In a joint operation, the EPS Tactical Unit provided assistance in the execution of a search warrant at the Appellant's home. No one was home at the time. There was a sign posted in the backyard "Beware: Pit Bull with AIDS". The Respondent entered the backyard. A dog emerged, aggressively advancing toward the Respondent. The Respondent made several attempts to scare the dog but determined his personal safety was at risk and shot the dog.
The Appellant alleged that the Respondent unlawfully exercised his authority by shooting the Appellant's dog, caused significant damage to his home, and that officers left a trapdoor open, which caused a hazard into which his mother fell into. Instead of assisting the Appellant's mother, the Appellant alleged the officer laughed at her.
This appeal was heard prior to the Court of Appeal decisions in Pelech and Newton. The Board sought submissions regarding the evidence to be relied on and the standard of review. The parties agreed the Board should consider the evidence already heard, as well as the record that was provided to the Board.
The Board was of the opinion this appeal engages a standard of review of reasonableness.
The Chief noted other methods of subduing the dog were not practical. With respect to the damage to the house, the Appellant made no complaint of damage during the investigation, the Appellant did not introduce any photos, estimates or invoices for repairs, and there was no 2011 Annual Report Page 30
identifying information about the officers alleged to have caused the damage - whether the officers were EPS or RCMP. There was no evidence to show that an EPS officer opened the trapdoor and no evidence to suggest that any officers laughed at the Appellant's mother.
The Board concluded that the Chiefs decision was reasonable.
No. 024-2011 - T.E. and A.E. v EPS
Allegations: Breach of Confidence Insubordination Deceit
The Appellants filed complaints of contravention of the Alberta Freedom of Information and Protection of Privacy Act when disclosure was made of their son's arrest and that officers colluded together in preparing their statements.
EPS responded to a family dispute and determined that the Appellants' son was a danger to himself and others. The son was apprehended and transported to hospital for examination. The complaints arise from the issues corollary to the apprehension of the Appellants' son and not about the actual apprehension of their son.
Following the apprehension incident the Appellants were made aware of a letter from the one of the Respondent's counsel. The letter referred to the circumstances of incident and inquired whether this would affect an upcoming court date involving the Respondent and the Appellants' son in an unrelated civil matter. The Appellants claim the information regarding the incident would only have been obtained from other the EPS members as the Respondent was not involved in the incident at the Appellants' residence.
The day following the incident the Respondent overheard other members discuss the apprehension of the Appellants' son. The Respondent obtained the file number electronically and provided the information about the apprehension to his counsel. The Chief concluded that this action did not meet the threshold of misconduct.
With respect to the second complaint, the Appellants allege the compelled statements provided by the Respondents were so similar they must have been prepared in collusion, rather than independently.
The issues for the Board's consideration were whether the disclosure of the son's arrest by an unknown member to the Respondent constitutes misconduct and whether this disclosure to his counsel constitutes misconduct.
This appeal was primarily about the findings of fact made by the Chief. It could not be determined who provided the information regarding the Appellants' son to the Respondent. It was reasonable to believe the Respondent shared this information with his counsel as it was believed to be relevant to the civil matter. There was no evidence to show the dissemination of this information was for an improper purpose or in violation of FOIP. The Board also found it was not unreasonable for the Chief to conclude that the statements did not appear to be unreasonably similar. Although there was similarity in the wording, the similar words had to be taken in the context of the statements as a whole. 2011 Annual Report Page 31
No. 025-2011 - R. Walker v EPS
Allegations: Unlawful Exercise of Authority x 2 Insubordination x 8
The Appellant filed complaints alleging that the Respondents used excessive force when he was arrested on an outstanding warrant, and that inaccurate statements and insufficient details were put in their reports. The Appellant also alleged one Respondent failed to submit his report in a timely fashion.
The Appellant failed to meet numerous deadlines and failed to comply with multiple Board directions during the appeal process. When the hearing proceeded the Appellant did not attend the second day of his hearing and did not provide compelling reasons for his failure to attend.
The Board dismissed the appeal without further consideration.
No. 028-2011 - M. Dupras v MHPS
Allegations: Excessive Use of Force Unlawful Exercise of Authority Discreditable Conduct
The Appellant filed complaints arising from the arrest of his stepson. The stepson refused to produce identification upon request, became confrontational and exhibited aggressive behavior. The stepson was taken down and handcuffed after unsuccessful attempts to calm him down by his friends and by the Respondents.
The Appellant alleged his stepson was subjected to excessive force during the arrest and was detained in a police vehicle. When the Appellant arrived at the scene the Respondent commented that he could file a complaint but that "you know what happens to them". The stepson was later released and not charged.
The Board concluded the decision of the Chief to dismiss the complaint was reasonable. The Chief conducted an objective and thorough investigation, which provided him with the necessary information to reach a reasonable decision. The investigation involved interviews of the Respondents, the Appellant and the stepson. With respect to the use of force complaint, the Chief relied on an expert to analyze and conclude that the force used by the Respondents was not inappropriate.
The Board found the Chief treated the matter seriously as additional charges and counseling requirements, which were beyond the scope of the complaint, were dealt with. One of the Respondents received written counseling regarding training to improve his demeanor and communication when dealing with the public. The other Respondents received an Official Warning for taking inadequate notes of the incident and for the lack of timely submission of notes as required. 2011 Annual Report Page 32
No. 030-2011 - D. Warnell v EPS
Allegations: Excessive Use of Force Discreditable Conduct x 2 Unlawful Exercise of Authority Neglect of Duty Insubordination x 2
The Appellant filed two separate complaints involving the same officer. The Chief disposed of the complaints separately and the Appellant filed two appeals to the Board. The appeals were heard together and the Board issued one decision pertaining to both matters.
The complaints arise from the Appellant visiting with friends. On both occasions, the Respondent attended and entered the premises without consent and without a warrant. In the first complaint the Appellant alleged the Respondent was rude and swore at him, that he was punched in the mouth, and that his belongings were taken from his backpack and not returned. In the second complaint the Appellant alleged the Respondent ordered him to produce identification when he had no legal authority to do so, continued to harass him and made reference to his previous complaint when he had no justification for divulging this information.
The appeal was heard prior to the Court of Appeal decisions in Pe/ech and Newton. The Board sought submissions regarding the evidence to be relied on the standard of review. The parties agreed the Board should consider the evidence already heard, as well as the record that was provided to the Board. With respect to the standard of the review, deference was given to the Chief in factual matters and a combination of Board expertise and deference to the experience of the Chief in standard of conduct issues.
The Appellant submitted that only four of the nine allegations were addressed in the Chiefs disposition letter. Upon review of the original complaint, the details provided by the Appellant during the investigation and the Chiefs disposition letter, the Board was not of the view that the Chief failed to dispose of any specific complaints made by the Appellant. In the Board's view, the Chief dealt with the Appellant's complaint, even if the Chief did not deal specifically with every detail in the complaint.
The Board considered the reasonableness of the Chiefs decision in each of the complaints and whether the outcome falls within a range of possible or acceptable outcomes. The Board was satisfied that the disposition in each allegation fell within the acceptable range of outcomes.
No. 031-2011 - R. Krasniqi v CPS
Allegations: Excessive Use of Force Discreditable Conduct
The Appellant alleged during the course of being arrested and charged, that he was subjected to excessive force by the Respondents, which included being punched on the shoulder while being handcuffed, and pushed to the ground and against a wall, causing him to suffer an anxiety attack. The Appellant also alleged that improper comments were directed at his wife. 2011 Annual Report Page 33
This appeal was conducted prior to the Court of Appeal issuing Newton and Pe/ech. The parties agreed that the Board take into account the evidence previously heard, as well as the record that was subsequently provided to the Board.
The primary issue in this appeal is factual and the Board concluded the standard of review is reasonableness.
The Board considered the evidence given by the Mall security staff to be consistent, forthright and honest. The Board was unable to put much weight on the testimony of the Appellant's wife as the Appellant led her though her testimony. The Appellant was upset and agitated during the incident, which likely led to a seizure and could have been the reason his recall of events or perception may have been fragmented or skewed.
The Board found the Chiefs decision was reasonable, logical and detailed in its assessment of each allegation. The Chief provided a summary of the Appellant's version of events, as well as that of the Respondents on each of the allegations. Evidence from independent witnesses was also obtained and reviewed.
The conclusions reached by the Chief were well within the range of possible and reasonable options available to him.
No. 032-2011 - Sgt. R. Goss v EPS
Allegations: Discreditable Conduct x 2
The Appellant appealed the decision of the Presiding Officer in relation to two charges of discreditable conduct arising from an incident where he attended a restaurant, consumed alcohol during the course of the evening and then operated a motor vehicle. When the Appellant was later contacted by a Staff Sergeant in relation to an alleged impaired broadcast involving his license plate, the Appellant advised that he had been home all evening, when in fact he was at a restaurant and drove home after consuming alcohol.
The Presiding Officer found that both counts were proven and issued a global penalty of a reduction in rank for a period of two years, resulting in a financial penalty equivalent to $30,000. The Appellant also was not able to serve in a temporary acting capacity during this period.
The Appellant appealed the Presiding Officer's decision on the second charge and the global penalty assessed on both charges.
The Board was required to determine whether the Presiding Officer's decision was reasonable with respect to the second charge, and if so, was the global penalty assessed reasonable under the circumstances. This appeal involved a factual dispute and a standard of conduct dispute.
The Presiding Officer concluded that the Staff Sergeant's version of events must be preferred over that of the Appellant. The Board agreed that the investigation of the Staff Sergeant was complete and accurate, given the notes taken and the integrity of the information gathering process. The Board gave deference to the Presiding Officer's finding on the second charge and found the reasoning and conclusion of the Presiding Officer was reasonable. 2011 Annual Report Page 34
The Board concluded that the penalty must be of such a nature that it sends a very strong message to the public, to the justice system and to members that such conduct is unacceptable. The Board concluded that the global penalty imposed was reasonable and affirmed the sanction and penalty ordered by the Presiding Officer.
No. 033-2011 - C. Gillespie v EPS
Allegations: Excessive Use of Force Breach of Confidence
The Appellant filed two separate complaints. In the first complaint the Appellant alleged she was subjected to excessive use of force and that her belongings were seized and not returned to her. In the second complaint the Appellant alleged that the investigating officer disclosed her personal information to the members that she had originally complained about.
The Appellant attended a concert at Rexall Place. Security staff found a small dumbbell in the Appellant's purse and she was advised that she could not bring this into the concert. The Appellant told Security they could throw the dumbbell out. After some discussion the Appellant made the decision to leave Rexall Place but was prevented in doing so by Security.
The attention of the Respondents was drawn to the Appellant shouting that security personnel were assaulting her. The Respondents intervened, took over physical control of the Appellant and escorted her to a holding area. The Respondents testified the Appellant resisted their efforts and continued to shout. One of the Respondents put the Appellant in a wristlock and grabbed her head to avoid being head butted. The other Respondent had a grip on the Appellant's wrist and upper arm. The Appellant alleged that she was repeatedly assaulted, punched in the face, strangled and kicked while on the ground and handcuffed. The Appellant was released with a violation ticket under the Gaming and Liquor Act.
After the incident the Appellant filed a complaint against the Respondents. She provided a new telephone number to the officer assigned to handle the complaint and requested that she have no contact with the Respondents involved in the incident. The Appellant was subsequently contacted by one of the Respondents after the incident to arrange re-service of her violation ticket due to the incorrect fine amount.
The hearing in this matter took place prior to the Court of Appeal issuing the Pelech and Newton decisions. The parties agreed that the Board was free to consider the testimony that was heard at the de novo hearing, in addition to the record that was before the Chief of Police.
The Board treated the evidence of the security personnel with a great deal of caution as their accounts of the incident varied widely and contained discrepancies. Given the passage of time and the number of incidents the security personnel would have dealt with, it was more likely that their respective recollections were faulty. The Board treated the evidence of the Appellant with some trepidation as well. The injuries described by the Appellant were far less serious than the Board would have expected if the amount of force and actions of the Respondents did indeed occur.
The Board determined the Chiefs decision was reasonable. With respect to the Rexall Place incident the Chief reviewed all of the evidence available to him and noted the contradictions 2011 Annual Report Page 35
inherent in the Appellant's version of events. The events portrayed by the Respondents and the independent witnesses corroborated each other. The Appellant was extremely emotional and upset during the incident and the Board noted that the Appellant was prone to exaggerate, resulting in the Board treating her version of events with caution.
With respect to the Appellant's complaint that the Respondent disclosed her telephone number, the Board did not necessarily agree with all the reasoning set out in the Chiefs decision. The Board found that the decision was reasonable as the Appellant was accused of committing a provincial violation and the ticket needed to re-served. It was not the Appellant's right to decide who will and who will not serve her with violation tickets.
No. 034-2011 - J. dePaz v CaPS
Allegations: Unlawful Exercise of Authority x 2 Neglect of Duty x 2
The Appellant filed complaints of being wrongfully arrested and charged when the Respondents attended to a 911 call that someone was being threatened and chased by the Appellant with a weapon.
The Appellant was a self-employed mechanic. He became involved in a dispute with a client over pricing and racist comments were directed toward the Appellant. After being asked a number of times to leave the client eventually left the shop.
Police attended the Appellant's business and questioned the Appellant if he had attacked the client. The Appellant stated he was working with a flex bar and banged it on a car when he got upset with his client's persistence and reluctance to leave. The Appellant was arrested.
The Appellant alleged that he was handcuffed, not asked for identification, not informed of his right to contact a lawyer and not asked about a voluntary appearance. The Appellant stated that he was not charged with possession of a weapon until later in the arrest process.
The Appellant later attended the police station to lay a complaint against the officer who arrested him. He alleged his client made false allegations against him which were not corroborated by witnesses, that he was arrested and handcuffed, that he experienced chest pain while in custody due to the anxiety of the situation, and that his wife and children were not advised he was in jail when they attended to the front counter.
The hearing in this matter was conducted prior to the Court of Appeal issuing the Pe/ech and Newton decisions. The parties agreed that the Board was free to consider the testimony that was heard at the de novo hearing, in addition to the record that was before the Chief of Police.
The Appellant raised the issue of the adequacy of the investigation. As this issue raises the integrity of the process, the issue of civilian oversight will be at the forefront of this appeal.
The Board affirmed the Chiefs decision that the arrest of the Appellant was deemed lawful and reasonable under the circumstances. The charges were deemed warranted based on the information received at the time. The Board was satisfied that the Chief reviewed the evidence contained in the record and that it contained sufficient investigative material for him to render his 2011 Annual Report Page 36
decision. The Board was satisfied the Chief adequately conveyed his reasons to the Appellant and that procedural fairness was not compromised.
The Board did not agree that the investigation was compromised in any significant manner. The Board found that the Chief followed the appropriate procedures and came to a reasonable conclusion regarding the recommendation. His decision demonstrated that consideration was given to the recommendation before him as well as the Appellant's initial complaint.
No. 035-2011 - D. Wiebe v CPS
Allegations: Neglect of Duty Discreditable Conduct
The Appellant filed complaints alleging the Respondents failed to conduct a thorough investigation and were unprofessional when they attended his residence to investigate his complaint of being assaulted.
The Appellant filed a complaint against his neighbor after he was pushed to the ground resulting in bruising to both his hands and a sprained wrist. The neighbor's dog had charged at him and to protect himself from being bitten, the Appellant "spooked" the dog, causing it to retreat.
The Respondents attended the Appellant's residence on two occasions; the first to interview him regarding his complaint and later to receive a written statement. The Respondents also obtained a statement from the neighbor. The investigation resulted in no charges being laid against the neighbor.
The Appellant alleged that the Respondents failed to thoroughly investigate his assault complaint. The Appellant concluded the Respondents did not take the incident seriously and did not take the initiative to investigate his complaint. No photos or measurements were taken and physical evidence was not secured.
In the Appellant's letter of complaint to the Chief, he advised there were several avenues available to the neighbor to avoid assaulting him. He also advised that when the Respondents attended his residence to obtain a written statement, one of the Respondents had a lollipop in her mouth. The Appellant requested his complaints be investigated and that appropriate charges be laid, as well as apply appropriate disciplinary remedies with respect to the lollipop incident. The Chief dismissed the complaints of neglect of duty and discreditable conduct.
The Appellant raised issues respecting the integrity of the process by the police service in dealing with his complaint. As a result, the issue of civilian oversight by the Board will be at the forefront in this appeal and less consideration will be given to deference to the Chiefs decision.
The Board was satisfied the Chief reviewed the evidence contained in the record and that the record contained sufficient investigative material for him to render a reasonable decision. Contrary to the Appellant's submissions, the Board did not find any evidence to suggest that the investigation was tainted, flawed or negligent in any manner.
The Board acknowledged that the Appellant was thorough and meticulous in bringing forward evidence; however, he did not provide this evidence during the course of the investigation. The 2011 Annual Report Page 37
Appellant was also thorough and meticulous in bringing forward discrepancies that were not discovered by the investigating officers or the Chief; however, the Board did not agree that all the discrepancies indicate a disreputable intention or even ignorance by any of the Respondents involved in the case.
The Board found the Chiefs decision was reasonable in concluding that the Respondents adequately investigated the initial allegations of the Appellant. With respect to the lollipop incident, the Board concluded the Chiefs decision that remedial education was sufficient to ensure professional behavior in the future was also reasonable. The Board was also satisfied that the Chiefs decision regarding the failure of the Respondents to take proper notes could best be addressed through remedial education.
No. 036-2011 - D. Bilbrough v CPS
Allegations: Excessive Use of Force
The Appellant filed complaints alleging excessive force was used when he was arrested.
The Appellant was arrested at his residence for assault with a weapon and transported to the Arrest Processing Unit ("APU"). During the course of the booking the Appellant was rude, confrontational and posturing himself in an aggressive way. Due to the Appellant's past history with police, the Respondent became concerned for his safety and the safety of his partner, and took the Appellant to the ground.
The sequence of events was captured on a video camera in APU. The video showed the Appellant get up without assistance and the arrest process was completed. The images on the video confirmed the statements of the Respondent and the witnesses.
This appeal dealt primarily with a factual dispute- whether or not excessive force was used. As a result, the standard of review the Board applied was the reasonableness of the Chiefs decision.
The Chiefs decision was set out over six pages and reviewed the statements made by all the individuals present at the time of the incident. The version of the events described by the Respondent and the witnesses were consistent, suggesting the Appellant was difficult, uncooperative and taking an aggressive posture. The Appellant denied this version of events and suspected that some witnesses may have changed their stories. The Appellant did not provide any argument that would establish that the decision made by the Chief should not be considered as a reasonable outcome.
The Board was satisfied that the reasons set out by the Chief were reasonable and logical. The Board found the decision reached was within the range of options available to the Chief. 2011 Annual Report Page 38
No. 037-2011 - T.E. v EPS
AI legations: Insubordination
The Appellant filed two complaints alleging the Respondent improperly accessed the EPS computer system to search his name in the CPIC and Probe database. In the second complaint the Appellant alleged the Respondent lied to a public inquiry when he testified that he did not run the Appellant's name through CPIC and Probe.
In the first complaint, the Chief found there was insufficient evidence to determine that the Respondent ran the Appellant's name through the computer. However, the Chief was not able to rule out the possibility that another officer could have accessed the Respondent's mobile workstation. The Respondent was issued an Official Warning for failure to lock the mobile workstation and the police vehicle while he was out of it.
The second complaint dealt with the testimony the Respondent gave at the Inquiry to examine the access to information, allegedly made by various members of the EPS, regarding the Appellant. The Chief concluded sufficient evidence existed that a disciplinary hearing was warranted. The Presiding Officer concluded that there was insufficient evidence before him to find that the Respondent had run checks on the Appellant.
The Board heard viva voce evidence from the Respondent as well as considered the documentation provided as the record. The standard of review to be applied in both matters will be reasonableness.
Given the tight timeframe the inquiries were made on the Appellant, the Board observed the possibility that someone else accessing the Respondent's vehicle and mobile workstation strained credulity. The Board found it difficult to believe that the Respondent did not conduct the inquiries; however, in this instance the Board could not make such a finding. The Board must heed to the admonition by the Court of Appeal that while the Board may have reached a different decision on the facts before it, it cannot substitute the decision for that of the Chief. In this circumstance the Board concluded the evidence supported the Chiefs decision and a reasonable, logical conclusion was one of a number of possible choices given the evidence.
The Board urged the Chief, in future, to provide more detailed reasons for a decision not to hold a disciplinary hearing arising from a complaint. This would assist the Board in determining whether the decision of the Chief was reasonable.
The Board found the decision of the Presiding Officer was reasonable. The Presiding Officer reviewed the evidence and applied the law to the evidence in a rational and reasonable manner. In order to find the Respondent guilty of lying at the Information and Privacy Public Inquiry, the Presiding Officer would have had to find on a balance of probabilities that the Respondent had lied and that had not been proven. 2011 Annual Report Page 39
No. 038-2011 - D. Stevelman v CPS
• Allegations: Neglect of Duty ~ Unlawful Exercise of Authority
The Appellant filed a complaint alleging the Respondent did not properly investigate his complaint that his neighbor broke a window at the side of his residence and exceeded his authority by charging him with Public Mischief.
The Respondent interviewed the neighbor, who provided an alibi that she was shopping at the time. Receipts were provided from the stores, which indicated the time of her purchases. The Appellant was charged with Public Mischief.
The Respondent had limited knowledge of the ongoing conflict between the Appellant and the neighbor, as well as a judge's direction to the police service regarding witness statements provided by the neighbor. The Public Mischief charge was later withdrawn when it was determined that the neighbor's evidence was not credible.
This hearing took place prior to the Court of Appeal issuing the Pelech and Newton decisions. The parties agreed that the Board was free to consider the testimony that was heard at the hearing, in addition to the record that was before the Chief of Police.
The Board noted the evidence presented at the hearing was similar to what was before the Chief. With regard to the allegations against the Respondent, the de novo hearing did not substantially impact or deter from the record.
Regarding the integrity of the process, there was no indication of an error that would affect the standard of reasonableness. The Board concluded that while the Respondent may have been hasty in deciding to lay charges of Public Mischief against the Appellant, the Chiefs decision was reasonable in concluding that the Respondent carried out a professional investigation and did not exceed his authority. Even though the judge's recommendations went unheeded, this did not mean that the Chiefs decision was unreasonable or that the investigation was flawed or unfair. The Respondent's decision not to lay charges against the neighbor regarding the broken window was reasonable and borne out by the various investigative steps he took regarding the initial complaint.
The Board commented it would be useful if the ongoing problems between the Appellant and the neighbor, as well as the caveat regarding any evidence brought forward by the neighbor, were properly flagged on the file. This information would provide valuable background to an officer responding to future calls between these parties.
No. 039R-2011 - N. Taing v CPS
Allegations: Excessive Use of Force Unlawful/Unnecessary Exercise of Authority Discreditable Conduct
The Appellant filed complaints that excessive force was used when he was arrested and that the Respondents ridiculed his speech and accent during the arrest. 2011 Annual Report Page 40
The Appellant was riding his bicycle home from work in the early morning hours and was stopped by two police vehicles in an alley identified as a drug trafficking area. The Respondents had difficulty identifying or understanding the Appellant, as his English was very poor.
The Appellant was accused of possessing and selling drugs; however, no drugs were found. The Appellant alleged that three Respondents jumped on him while the fourth held a gun on him. The Appellant was handcuffed and arrested for Obstruction of Justice. The Appellant sustained injuries to his wrist and a tooth as a result of the arrest. He was later released and issued two summonses for traffic violations.
There was insufficient evidence to warrant an examination in relation to possible criminal charges against the Respondents, as well as insufficient evidence on the allegations of misconduct under the PSR.
The primary issue in this appeal was a factual dispute and the standard of review applied by the Board was reasonableness.
The Board agreed with the Appellant's submission that the statements of the Respondents were surprisingly consistent, notwithstanding they were provided 14 months after the incident. However, there was nothing that would suggest the statements were not accurate and some of the evidence supported the Respondents' statements. The medical evidence made no reference to any injury to the Appellant's wrists or tooth.
The Chief did not ignore the conduct of the Respondents in relation to inadequate notes and failure to provide the Appellant with a Charter warning. The Chief addressed these issues internally.
The Board found the Chiefs decision was reasonable based on the analysis of the evidence available to him and applying the proper test in determining whether there was a reasonable chance that a disciplinary offence occurred.
No. 040-2011 - J. Kolosetti v MHPS
Allegations: Neglect of Duty
The Appellant filed complaints alleging the Respondent failed to conduct a proper and thorough investigation into her complaint that her boyfriend choked her. The relationship between the Appellant and her boyfriend was a difficult one where police were called on several occasions to deal with complaints of assault and intoxication.
On the date of the incident the Appellant attended the boyfriend's residence, knowing that by doing so, she had contravened a "no contact" order that was in effect between her and her boyfriend. A roommate had called police and paramedics when he observed the Appellant lying on the bed and believed she was not breathing. The Appellant did not exhibit any external injuries and told the police and paramedics that their services were not needed. 2011 Annual Report Page 41
The Appellant attended the police station two days later and provided a sworn statement alleging she was assaulted. The Appellant's boyfriend was subsequently arrested and charged with assault. The Respondent re-interviewed the Appellant after he had obtained a contradictory statement from a witness. The Appellant admitted to providing inaccurate information.
The primary issue in this appeal is a factual one; whether the Respondent adequately investigated the Appellant's complaint. Accordingly the standard of review applied by the Board was reasonableness.
The Board concluded that the Chief not only made a reasonable decision, but the proper decision in this case. The Respondent's investigation provided him with the information needed to reach an informed decision on what had occurred on the night of the incident. The Respondent was diligent in obtaining statements from independent witnesses and in following up on conflicting statements. The charges against the boyfriend were subsequently withdrawn due to poor evidence, not a poor investigation. The Board viewed the pictures taken of the injuries of the Appellant by the police service and although there was some bruising, the record did not indicate when the pictures were taken. The Board found the pictures by themselves did not render the Chiefs decision unreasonable, nor did they indicate an improper investigation.
No. 041-2011-J. Urban v LRPS
Allegations: Unlawful/Unnecessary Exercise of Authority
The Appellant filed complaints of unlawful exercise of authority when the Respondent attended to a call from a store manager regarding a disagreement with the Appellant.
The Appellant took his vehicle in to have new tires installed. He was advised the vehicle was unfit to drive due to looseness in one of the wheel bearings. The Appellant did not agree with the assessment and advised he was going to drive home. An argument ensued between the Appellant and store staff. The staff member refused to return the Appellant's keys and called police.
The Respondent accepted the mechanic's advice and for traffic safety reasons advised the Appellant he could not drive his vehicle. The Appellant had his vehicle towed and later had the bearing replaced by someone else.
The issue for the Board to consider is whether the Chief made a reasonable decision in dismissing the allegations based on the information before him. The Board found the disposition of the Chief was reasonable. The investigation found that the Respondent was correct in the circumstances, particularly in light of the Traffic Safety Act, to prevent the Appellant from driving his vehicle away from the store. 2011 Annual Report Page42
No. 042-2011 - S. Judge v EPS
Allegations: Unlawful/Unnecessary Exercise of Authority
The Appellant filed complaints alleging the Respondent had no basis to investigate allegations of criminal harassment.
The Respondent was contacted by an area resident regarding threatening letters that were delivered to her home. She provided the Respondent with names of possible suspects, one being the Appellant. The Respondent attended the Appellant's residence as well as the other suspects, advising that he was conducting an investigation.
The police service received two complaints about the Respondent's conduct in the investigation. Both set out similar concerns that the Respondent had no grounds to conduct his investigation and the purpose of the investigation was to promote the area resident's personal objectives. The police service dealt with the Appellant as a co-complainant.
Based on the elements of the offence of criminal harassment, the Respondent appropriately undertook to investigate the area resident's complaint. The investigation included interviews of witnesses and potential suspects, a review of various correspondences and a review of the statement provided by the Respondent.
In the Board's view the Chief made a reasonable decision when he concluded there was no evidence to support that the resident received preferential treatment. The Appellant asserted her suspicions of interference but was unable to provide any evidence to support those suspicions.
The Board did not agree with the Appellant's claim that the investigation against the Respondent was flawed. The fact that the Appellant was not interviewed does not make the investigation flawed; others were interviewed, and the Appellant's letter and submissions were considered by the Chief.
The Board concluded there was nothing in the appeal that would raise concern about the police investigation or about the integrity of the disciplinary process. The standard of review applied by the Board was reasonableness.
The Board made a collateral comment that it was of the view that the appeal was unnecessary and on the borderline of being frivolous and vexatious. It was not the Board's intent to discourage individuals from filing appeals; however, the Board did discourage individuals from filing appeals based on a personal agenda that is unrelated to the purpose of the Police Act.
No. 043-2011 - D. Hughes v EPS
Allegations: Unlawful/Unnecessary Exercise of Authority x 2
The Appellant filed complaints alleging that he was unlawfully confined to his vehicle during a traffic stop and that he was not allowed to speak with a witness regarding the occurrence. 2011 Annual Report Page 43
The Appellant was stopped in front of a district police station and issued a ticket for driving 65 km/hr in a 50 km/hr zone. The Appellant requested to see the reading on the laser gun but was advised that he could not. He further asked the Respondent whether he could speak with a civilian volunteer who had been standing next to the laser gun and was also advised that he could not. The Appellant alleged that when he was issued the ticket, the Respondent and his supervisor were so close to the car door that he felt 'unlawfully confined' in his vehicle.
The Appellant went inside the police station looking for the civilian volunteer. He alleged the Respondent's supervisor and the officer at the front counter were uncommunicative.
The record revealed the Appellant's demeanor and the disagreement between the Appellant and the Respondent. The investigation included interviews conducted with the Appellant, the Respondent, the civilian volunteer and two other officers. The Board acknowledged that the statements of most of the witnesses were consistent.
Although the Appellant stated that his rights under the Charter of Rights and Freedom were violated, he did not specify how he reached this belief and did not provide a proper Notice of Constitutional Question as required by the Administrative Procedures and Jurisdiction Act. Therefore, the Board was unable to deal with this allegation.
The Board found that the Chiefs decision was reasonable. He reviewed all the evidence available to him, applied the proper test in determining whether there was a reasonable chance a disciplinary offence had occurred, and he made a decision within the range of reasonable and acceptable outcomes of the Appellant's complaint.
No. 044-2011 - N. Jantz v EPS
Allegations: Neglect of Duty
The Appellant alleged the Respondent conducted an inadequate investigation in that he failed to give due weight to the statements provided by the Appellant's witnesses, that witnesses were not contacted, the investigation did not encompass all the information that was available, and that the Respondent made numerous inaccurate and misleading statements in his investigative report. The Appellant alleged there were numerous delays in the investigation and numerous questions that were not answered.
The Appellant operated a coffee kiosk at the Edmonton Public Library. He was in the process of vacating the premise and was dismantling the kiosk. There was a verbal exchange between the Appellant and a representative of the Library regarding the noise, the smell and the disruption to the library.
The Respondent attended at the library and met with the Appellant. The Appellant alleged he was assaulted by the library representative and provided the names and numbers of two individuals who were doing the contract work. The Appellant provided a total of three witness statements related to this incident. The Respondent advised the Appellant that due to lack of physical evidence and the statements made, he felt there were not sufficient grounds to proceed with an assault charge. 2011 Annual Report Page44
The Chief concluded there was no misconduct on the part of the Respondent and agreed there were insufficient grounds to pursue an assault charge. The Chief did not view the Respondent's decision to not contact the witnesses as unreasonable or improper, as the witnesses were operating power tools at the time of the physical contact and were not eyewitnesses to the alleged assault. The Chief noted the discrepancies between the Appellant's version and those reported to the Respondent were minor and not of a kind to alter the outcome of the investigation.
As this appeal primarily raised standard of conduct issues, the Board is entitled to rely on its own expertise; however, the Board did not disregard the findings of the Chief. The Board examined the Appellant's allegations with deference to the Chiefs expertise ·in relation to the Respondent's exercise of discretion and decisions about what investigative steps should be taken in an investigation.
The Board did not view the delay as unreasonable. There was no evidence of prejudice due to the passage of time, or of any corresponding benefit to the police service. The Board also noted that many of the questions were immaterial to the investigation or its outcome.
The Board recognized some discrepancies between the written statements of the Appellant and the investigation report. These errors or inconsistencies were not of a nature that would impact the determination as to whether an assault occurred or what direction the investigation ought to take. In the Board's view, the decision of the Respondent to not contact the witnesses was not unreasonable based on the contents of the witness statements.
The Board reviewed the three witnesses statements provided by the Appellant and was of the view it was reasonable for the Chief to conclude there was no new additional evidence related to the assault.
In the Board's view the Chiefs decision was within the range of reasonableness in all the circumstances.
COURT OF APPEAL DECISIONS
In 2011, the Court of Appeal issued decisions in the following matters that were appealed:
No. 005-2010- Dr. and Mrs. Yakymovych v EPS Citation: Edmonton Police Service v Alberta (Law Enforcement Review Board), 2011 ABCA288
The Respondents appealed the Board's decision on the issue of whether the Board had jurisdiction to hear an appeal from a decision of the Chief categorizing a complaint as being related to "policies or services provided by the police service" as opposed to "actions of a police officer". The Court of Appeal found the Board did not have jurisdiction to review the decision of the Chief, which categorized the complaint as relating to "policies and services". The Appeal was allowed. The Court further stated the tribunal with appellate jurisdiction is the Edmonton Police Commission. The Commission could, potentially, decide that the complaint had been 2011 Annual Report Page45
mischaracterized and under s. 44(4) of the Act "take whatever action it considers appropriate, if any".
No. 013-2010- J. Pringle v EPS Citation: E/tom v Alberta (Law Enforcement Review Board), 2011 ABCA 260
The Respondent appealed the Board's decision where it directed the Chief to conduct a disciplinary hearing. The Chief had reached a different conclusion than did the trial judge on the issues raised by the Mr. Pringle, namely the force that was used on him. The Board had concluded that the trial judge's decision was properly admissible and in the absence of any other evidence, relied on it to conclude that the matter should be returned to the Chief with a direction that a hearing be conducted. The Court of Appeal allowed the appeal and set aside the Board's decision that the Chief proceed to a hearing.
No. 019-2010- T. Ferguson v EPS
The Respondent appealed the Board's decision in remitting this matter to the Chief but subsequently discontinued the action against the Board.
Agenda Item # 7. A)
File No. Dept TABER MUNICIPAL POLICE COMMISSION Commission Request For Decision
Subject: Alberta Association of Police Date of February 20, 2013 Governance (AAPG) Agenda: Prepared By: Kerry Van Ham, Council & CAO Assistant Attachments: Conference Donation Request E-mail Budget: If Over Budget, what is alternate funding source? Expense: Topic: Spring Conference Donation Request m D) The AAPG will be hosting a Spring Conference, May 3-4, 2013. (") The AAPG is looking for items to include in the conference packages for cc..,""' delegates this year. 0 c Commission direction is requested. ..c.::::s
0 "'C 1. That the Taber Police Commission approves the donation of ... to be included in the May 3-4, 2013 0-· Alberta Association of Police Governance Conference delegate packages. ::::s ..en 2. That the Taber Police Commission does not approve a donation to be included in the May 3-4, 2013 Alberta Association of Police Governance Conference delegate packages.
Recommendation:
Approval February 15, 2013 CAO: ~ Date: Rudd, Alf
From: Van Ham, Kerry Sent: February-11-13 8:18AM To: Rudd, Alf; Birch, Greg Subject: FW: Conference Items
Kerry Van HaW\ I CotAI'I.cil & CAO Assistal'l.t I Towl'l. of Taber I Ph 403 223 5500 x 551-q Fax 403 223 5530 I e:W\aif kerry.val'l.haW\@taber.ca
Notice of Confidentiality - This ~Message, including any attach~Ments, contaii'\S confidential infor~Mation intended For a specific individual and purpose, and is protected by law. If you are V\Ot the inteV\ded recipieV\t, you should delete this ~Message and are hereby notified that aV\y disclosure. copyiV\g or distribution of this ~Message, or the takiV\g of any action based on it, is strictly prohibited. The recipient should check this eJMail and aV\y attach~Ments For the presence of viruses. The sender accepts no liability for any da~Mage caused by any virus trans~Mitted by this e~Mail.
The Town of Taber...... a great place to grow. 11/sti: our /!lew webs/te www.taber.ca
From: Jennifer Freund [mailto:[email protected]] Sent: February-09-13 10:11 AM To: Jennifer Freund Subject: Conference Items
Dear AAPG Members:
Conference planning is well underway for this year's event, May 3- 4, 2013. More details will be available soon.
We are looking for items to include in our conference packages for our delagates this year.
If you would like to donate any items from your organization or town, they would be greatly appreciated. Expected attendance levels are around 80 delegates.
You can send any items you may wish to donate to:
AAPG PO Box 36098 Lakeview Post Office Calgary, Alberta T3E 7C6
Thank you.
Sincerely,
1 Agenda Item #8. A)
TABER MUNICIPAL POLICE COMMISSION Commission Request For Decision
Subject: Police Chief Rudd's Report Date of February 20, 2013 Agenda: Prepared By: Kerry Van Ham, Council & CAO Assistant Attachments: Report Budget: If Over Budget, what is alternate funding Expense: source? Topic: Police Chief Rudd's ReR_ort
m Police Chief Rudd's Report to February 20, 2013 and Stats for January 2013. D) n cc..,~ 0 c :::s c. • •
0 1. That the Taber Police Commission accepts Police Chief Rudd's Report and -c... Stats for information . 0-· :::s tn • •
Recommendation: Option #1- That the Taber Police Commission accepts Police Chief Rudd's Report and Stats for information . .. Approval February 15, 2013 CAO:~ Date: CHIEF OF POLICE REPORT TO COMMISSION 13FEB20
CASES OF INTEREST Reports of two house break-ins resulted in the arrest of a 28 year old female and charges of break and enter into private residences. The timely arrest is a credit to the police investigators and prevented further offences.
An operating camera found in a public washroom at a highway business is still under investigation.
COMMUNITY RELATIONS TCAPS meeting Chamber dinner at Heritage Inn Attend 'Go-Live' event for API3 at Standoff Safe Haven Board attendance Taber & District Community Adult Learning Association Board meeting Attend Southern Alberta Kanadiers Association meeting Coaldale
FINANCES See report attached
EQUIPMENT All vehicles are now outfitted with mobile equipment and modems in preparation for March 24 'Go-Live' of API3 Installation of dispatch centre furnishings and replacement of carpet scheduled to go prior to March 24
PERSONNEL Two officers scheduled for joint training opportunity with LRPS Inspector assigned to a working group to establish police performance strategy for province joint with SG Inspector Abela is awarded the Spirit ofTaber Honours
COURT REPORT No concerns. We continue to meet with Alberta Justice Crown Attorneys as part of on-going quality assurance
OPERATIONAL Chief attended to the Chief of Police Roundtable meeting in Lacombe Chief presented before Parliamentary Committee on Economics of Policing Two staff representing TPS on provincial review committee on Police Information Checks process
BUSINESS PLAN TRACKING Philosophy- Crime Prevention/ Goal- Review Community Policing Programs: A review has been conducted including a survey of our partnerships. The information revealed that we are doing quite a good job and we conclude that we have dedicated resources effectively in establishing and maintaining our programs and partnerships (report attached). MAYOR'S REPORT TOTAL Compare 2012 Jan YTO 2013 2012 YTD TRAFFIC - Impaired Operation/Related Offences 2 2 8 - Dangerous Operation of Motor Vehicle 0 0 2 - Traffic collisions 13 13 7 -Other criminal code 1 1 4 - Provincial Traffic Offences 124 124 180
LIQUOR ACT 9 13
OTHER CRIMINAL CODE -Other criminal code 27 27 14 - Offensive weapons 0 0 0 - Corruption (Public Mischief) 0 0 0
DRUG ENFORCEMENT -Trafficking 1 1 0 - Possession 5 5 6 -Other 1 1 5
I CRIMES AGAINST A PERSON I - Sexual offences 1 1 1 - Robbery/Extortion/Harassment/Threats 9 9 5 - Offences Related to Death (Murder/Attempt murder) 0 0 0 - Kidnapping/Hostage/Abduction 0 0 0 -Assaults 4 4 1
ES AGAINST PROPERTY - Theft under $5000 7 7 12 - Theft over $5000 1 1 2 - Possession of Stolen Goods 1 1 0 -Fraud 0 0 5 - Break and Enter 4 4 3 -Arson 0 0 0 -Mischief 5 5 11
I BYLAW ~-Traffic 1 - Other (non-traffic calls) 2~ I 17 CPIC ACTIVITY FUNCTION Entries 323 Modifications 189 Removals 167 Queries 2950
Taber 9-1-1 Activity End JAN 2013
Type of Call Answered within Standard . (Under 15 Seconds) 51 1 line9-1-1(211) II', 2nd Line 9-1-1 (6) I I' , Agenda Item # 8. B)
TABER MUNICIPAL POLICE COMMISSION Commission Request For Decision
Subject: Financial Information to February Date of February 20, 2013 14,2013 Agenda: Prepared By: Kerry Van Ham, Council & CAO Assistant Attachments: Reports Budget: If Over Budget, what is alternate funding source? Expense: Topic: Financial Information to February 14, 2013
OJ Reports of the interim financial information for the month ending February 14, 2013, have been D) included for information. (') cc...""' 0 1: c.:::J • •
0 1. That the Taber Police Commission accepts the Interim Financial Information to "'C.... February 14, 2013, for information . 0-· :::J en • •
Recommendation: Option #1 -That the Taber Police Commission accepts the Interim Financial Information to February 14, 2013, for information.
L Approval Date: February 15, 2013 Actual Cost vs Budget Annual
Budget Year: 2013 & Costing Center: 21-10- Commission- Police
Object Sub-Object Budget Actual Variance Revenues Fines 1-531-0010- Fines 386,500 35,933 (350,568) 1-539-0000 - Other Fines 4,750 300 (4,450) 391,250 36,233 (355,018) Government transfers 1-840-0010- Transfers from Provincial Gov 362,500 0 (362,500) 362,500 0 (362,500) Sales and user fees 1-412-0000 - Sales of Services 95,000 3,954 (91 ,046) 95,000 3,954 (91,046) Sales to other governments 1-440-0030 - Sale of Contracted Services - 10,000 10,000 0 10,000 10,000 0 Total 858,750 50,187 (808,563) Expenditures Amortization 2-690-0000 - Amortization 119,472 0 (119,472) 119,472 0 (119,472) Contracted and general services 2-211-0000- Travel and Subsistence 15,000 209 (14,791) 2-211-0001 - Travel and Subsistence 5,000 0 (5,000) 2-213-0000- Training- External 24,050 0 (24,050) 2-214-0000- Memberships, Conferences, 5,700 969 (4,731) 2-215-0000 - Express, Cartage, Freight 2,500 102 (2,398) 2-216-0000- Postage 1,050 0 (1 ,050) 2-217-0001- Communications- Telephone Land 13,420 878 (12,542) 2-217-0002- Communications- Telephone Mobile 7,250 461 (6,789) 2-217-0003- Communications- Data 4,800 0 (4,800) 2-221-0000- Advertising, Promotion, Public 3,600 0 (3,600) 2-223-0000 - Subscriptions and Publications 500 0 (500) 2-232-0000 - Professional Services - Legal 500 0 (500) 2-235-0000 - Professional Services - Management 1,000 0 (1,000) 2-236-0000 - Professional Services - Information 13,600 0 (13,600) 2-239-0000 - Professional Services - Other 5,000 0 (5,000) 2-252-0020 - Contracted Repairs, Maintenance- 28,020 2,335 (25,685) 2-253-0010- Contracted Repairs, Maintenance- 16,060 375 (15,685) 2-255-0010- Contracted Repairs, Maintenance- 10,000 0 (10,000) 2-263-0000 - Rental/ Lease of Equipment & 4,200 716 (3,484) 2-265-0000 - Rental/ Lease of Vehicle 1,500 0 (1,500) 2-271-0000- Licenses and Permits 7,000 0 (7,000) 2-274-0000- Insurance Premiums 15,430 0 (15,430) 2-290-0000 - Towing 800 0 (800) 185,980 6,046 (179,934) Materials, goods and supplies 2-511-0000- Stationery, Office Supplies 12,000 638 (11 ,362) 2-512-0000- Clothing & Boots 13,000 383 (12,617) 2-513-0000- Janitorial Supplies 2,500 183 (2,317) 2-515-0000- Catered or Purchased Foods 650 50 (600) 2-516-0000 - Pharmaceutical & First Aid 1,000 0 (1 ,000) 2-517-0000- Promotional Materials 500 0 (500) 2-519-0000- General Goods and Supplies- Other 1,000 0 (1,000)
Feb 14, 2013 04:57PM Actual Cost vs Budget Annual Page 1 Actual Cost vs Budget Annual
Budget Year: 2013 & Costing Center: 21-10- Commission- Police 2-521-0000- Gas, Oil, Antifreeze, Etc. 25,000 81 (24,919) 2-522-0000 - Tires & Batteries 5,000 0 (5,000) 2-523-0000 - Machine & Equipment Parts 1,500 125 (1,375) 2-523-0020 - Building Furnishings & Supplies 600 0 (600) 2-523-0030 - Computer Equipment & Supplies 0 357 357 2-524-0000- Small Equipment and Tools 21,175 2,345 (18,830) 2-538-0000 - Building, Plumbing and Electrical 2,000 0 (2,000) 2-543-0000 - Natural Gas 5,300 (842) (6,142) 2-544-0000- Electricity 21,600 (609) (22,209) 112,825 2,712 (110,113) Purchases from other governments 2-351-0000- Purchases from Local Government 96,000 0 (96,000) 96,000 0 (96,000) Salaries, wages and benefits 2-11 0-0000 - Salaries - Out of Scope 250,369 11,598 (238,771) 2-111-0000- Police Assoc Wages- Full Time 1,089,614 51,234 (1,038,380) 2-113-0000- CUPE Wages- Full Time Clerical 353,470 16,535 (336,935) 2-114-0000- CUPE Wages- Part Time Clerical 73,191 4,852 (68,339) 2-118-0000 - CUPE Wages - Casual Guards 64,356 2,447 (61,909) 2-130-0000- Employer Statutory & Benefits 433,422 21,045 (412,377) 2,264,422 107,711 (2,156,711) To reserves 2-940...()000 - Contributions to Capital Fund 67,100 0 (67,100) 67,100 0 (67,100) Total 2,845,799 116,469 (2,729,330) NetTotal (1,987,049) (66,282) 1,920,767
Feb 14, 2013 04:57PM Actual Cost vs Budget Annual Page 1