Allen v. Law Enforcement Review Board (Alta.) et al.,

• Judge: Picard,Read,Slatter
• Neutral Citation: 2013 ABCA 187
• Citation: (2013), 553 A.R. 140,2013 ABCA 187,553 AR 140,(2013), 553 AR 140,553 A.R. 140
• Date: 01 May 2013
• Court: Court of Appeal (Alberta)

Allen v. LERB (2013), 553 A.R. 140; 583 W.A.C. 140 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JN.001

Detective Bill Allen (Reg. No. 1535) also known as Detective William Allen (appellant) v. Law Enforcement Review Board and M.E. (respondents) and Rod Knecht, The Chief of the Edmonton Police Service (respondent)

(1103-0224-AC; 2013 ABCA 187)

Indexed As: Allen v. Law Enforcement Review Board (Alta.) et al.

Alberta Court of Appeal

Picard and Slatter, JJ.A., and Read, J.(ad hoc)

May 31, 2013.

Summary:

The uncooperative complainant was arrested for possession of a controlled substance, and was transported to a nearby police station. At the police station Detective Allen directed the complainant to remove his clothing down to his underwear. The complainant complied, and Detective Allan searched his clothing for more drugs. The complainant was released from custody without any charges being laid. As a result of this interaction, Detective Allen was charged with, inter alia, "Unlawful or Unnecessary Exercise of Authority", because he "unnecessarily detained, transported and conducted a modified strip search" of the complainant.  The Presiding Officer found that while Detective Allen might have had a suspicion that the complainant was in possession of more drugs, he did not meet the test of "reasonable and probable grounds". He therefore found that while a frisk search upon arrest was reasonable, the further strip search at the station was not. The Law Enforcement Review Board affirmed the decision. Detective Allen applied for leave to appeal.

The Alberta Court of Appeal, per Côté, J.A., in a decision reported at [2012] A.R. Uned. 9, granted leave to appeal.

The Alberta Court of Appeal allowed the appeal and remitted the matter to the Board for reconsideration.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decision - Sufficiency of - The uncooperative complainant was arrested for possession of a controlled substance, and was transported to a nearby police station - At the police station Detective Allen directed the complainant to remove his clothing down to his underwear - The complainant complied, and Detective Allan searched his clothing for more drugs - The complainant was released from custody without any charges being laid - As a result of this interaction, Detective Allen was charged with, inter alia, "Unlawful or Unnecessary Exercise of Authority", because he "unnecessarily detained, transported and conducted a modified strip search" of the complainant - The Presiding Officer found that while Detective Allen might have had a suspicion that the complainant was in possession of more drugs, he did not meet the test of "reasonable and probable grounds" - He therefore found that while a frisk search upon arrest was reasonable, the further strip search at the station was not - The Law Enforcement Review Board affirmed the decision - Detective Allen appealed - At issue was, inter alia, whether both sets of reasons for decision were adequate - The Alberta Court of Appeal found both sets of reasons sufficient - "The Presiding Officer gave 26 pages of written reasons. He reviewed all of the evidence, and the arguments of each side, and he discussed all of the legal issues. His conclusions and his line of reasoning are transparent. The Board gave 13 pages of reasons, also clearly setting out the basis for its decision. Where the Presiding Officer gave reasonable reasons and came to a reasonable result on an issue on which the Board owed deference, it merely said so. It is not necessary for the Board to articulate the 'range of solutions available on the facts and the law' to show why the Presiding Officer's decision falls within that range. Both sets of reasons are more than adequate to convey the basis for the decisions, and to enable appellate or judicial review to the appropriate standard." - See paragraphs 44 to 48.

Civil Rights - Topic 1216

Security of the person - Lawful or reasonable search - Strip searches - The uncooperative complainant was arrested for possession of a controlled substance, and was transported to a nearby police station - At the police station Detective Allen directed the complainant to remove his clothing down to his underwear - The complainant complied, and Detective Allan searched his clothing for more drugs - The complainant was released from custody without any charges being laid - As a result of this interaction, Detective Allen was charged with, inter alia, "Unlawful or Unnecessary Exercise of Authority", because he "unnecessarily detained, transported and conducted a modified strip search" of the complainant -  The Presiding Officer found that while Detective Allen might have had a suspicion that the complainant was in possession of more drugs, he did not meet the test of "reasonable and probable grounds" - He therefore found that while a frisk search upon arrest was reasonable, the further strip search at the station was not - The Law Enforcement Review Board affirmed the decision - Detective Allen appealed - At issue was, inter alia, whether Detective Allen's actions constituted a strip search within the meaning of R. v. Golden (I.V.) (SCC 2001) - Detective Allen argued that what happened here was not a "strip search", because it did not involve the exposure of any of the private areas of the complainant's body - The Alberta Court of Appeal held that "what happened in this case can fairly be described as a 'modified strip search'. While it fell within the definition in Golden, it was 'modified' in the sense that the intensity of strip searches falls on a continuum, and this one did not involve total disrobement .... The complainant was not required to remove all of his clothes, but he was left with only his underwear on. One can therefore envision both more intensive and less intensive strip searches than occurred in this case. However, on the range of searches (between frisk, strip and cavity) what happened here falls more closely into the analytical category of a strip search." - See paragraphs 15 to 23.

Civil Rights - Topic 1216

Security of the person - Lawful or reasonable search - Strip searches - The uncooperative complainant was arrested for possession of a controlled substance, and was transported to a nearby police station - At the police station Detective Allen directed the complainant to remove his clothing down to his underwear - The complainant complied, and Detective Allan searched his clothing for more drugs - The complainant was released from custody without any charges being laid - As a result of this interaction, Detective Allen was charged with, inter alia, "Unlawful or Unnecessary Exercise of Authority", because he "unnecessarily detained, transported and conducted a modified strip search" of the complainant -  The Presiding Officer found that while Detective Allen might have had a suspicion that the complainant was in possession of more drugs, he did not meet the test of "reasonable and probable grounds" - He therefore found that while a frisk search upon arrest was reasonable, the further strip search at the station was not - The Law Enforcement Review Board affirmed the decision - Detective Allen appealed - At issue was, inter alia, whether the search conducted by Detective Allen in law required advance objective probability of finding narcotics, and if so, did that mean greater than a 50% statistical probability - The Alberta Court of Appeal allowed the appeal - The Board erred in deciding that "reasonable and probable grounds" required a probability of finding more drugs - The background issue was whether a search of this intensity was unnecessary, not whether the search qualified in the abstract as a "strip search" - Considering all the circumstances, the search might have been reasonable and necessary even if there was not an objective probability that more drugs would be found - See paragraphs 24 to 31 and 49.

Police - Topic 4078

Internal organization - Discipline of members - Unlawful or unnecessary exercise of authority - The uncooperative complainant was arrested for possession of a controlled substance, and was transported to a nearby police station - At the police station Detective Allen directed the complainant to remove his clothing down to his underwear - The complainant complied, and Detective Allan searched his clothing for more drugs - The complainant was released from custody without any charges being laid - As a result of this interaction, Detective Allen was charged with, inter alia, "Unlawful or Unnecessary Exercise of Authority", because he "unnecessarily detained, transported and conducted a modified strip search" of the complainant - The Presiding Officer found that while Detective Allen might have had a suspicion that the complainant was in possession of more drugs, he did not meet the test of "reasonable and probable grounds" - He therefore found that while a frisk search upon arrest was reasonable, the further strip search at the station was not - The Law Enforcement Review Board affirmed the decision - Detective Allen appealed - At issue was, inter alia, whether an officer conducting any search outside of the Charter parameters was ipso facto an offence of unlawful or unnecessary exercise of authority - The Alberta Court of Appeal held that "[i]t cannot be the case that a Charter breach is ipso facto a disciplinary offence, because it would mean that mere errors in judgment or carelessness would inevitably rise to the level of discreditable conduct. While police discipline may not require a full level of mens rea, and negligence may in some instances amount to a disciplinary offence, there must be some meaningful level of moral culpability in order to warrant disciplinary penalties. ... police work would become impossible if police officers were, regardless of the circumstances, subjected to disciplinary proceedings every time a judge found a Charter breach." - See paragraphs 32 to 37.

Police - Topic 4078

Internal organization - Discipline of members - Unlawful or unnecessary exercise of authority - The uncooperative complainant was arrested for possession of a controlled substance, and was transported to a nearby police station - At the police station Detective Allen directed the complainant to remove his clothing down to his underwear - The complainant complied, and Detective Allan searched his clothing for more drugs - The complainant was released from custody without any charges being laid - As a result of this interaction, Detective Allen was charged with, inter alia, "Unlawful or Unnecessary Exercise of Authority", because he "unnecessarily detained, transported and conducted a modified strip search" of the complainant -  The Presiding Officer found that while Detective Allen might have had a suspicion that the complainant was in possession of more drugs, he did not meet the test of "reasonable and probable grounds" - He therefore found that while a frisk search upon arrest was reasonable, the further strip search at the station was not - The Law Enforcement Review Board affirmed the decision - Detective Allen appealed - At issue was, inter alia, whether the offence found by the Presiding Officer or by the Board corresponded in law to the offence charged and its particulars - Detective Allen argued that the phrase "unlawful or unnecessary" was disjunctive - Because the particulars alleged "unnecessary" exercise of authority, it was not open to the Presiding Officer to find "unlawful" exercise of authority - The Alberta Court of Appeal rejected the argument - The Presiding Officer's analysis repeatedly explored whether the search was "justified", rather than referring to the legal test of "unnecessary" or "unlawful" - The finding of the Presiding Officer that the strip search was "not justified" was consistent with the finding of "unnecessary" exercise of authority - Whether the facts as found showed an "unlawful", "unnecessary" or "unjustified" exercise of authority, and the difference between them, were issues within the mandate and expertise of the Presiding Officer - Both he and Detective Allen knew the gravamen of the charge, and the record showed no reviewable error - See paragraphs 38 to 41.

Police - Topic 4078

Internal organization - Discipline of members - Unlawful or unnecessary exercise of authority - The uncooperative complainant was arrested for possession of a controlled substance, and was transported to a nearby police station - At the police station Detective Allen directed the complainant to remove his clothing down to his underwear - The complainant complied, and Detective Allan searched his clothing for more drugs - The complainant was released from custody without any charges being laid - As a result of this interaction, Detective Allen was charged with, inter alia, "Unlawful or Unnecessary Exercise of Authority", because he "unnecessarily detained, transported and conducted a modified strip search" of the complainant -  The Presiding Officer found that while Detective Allen might have had a suspicion that the complainant was in possession of more drugs, he did not meet the test of "reasonable and probable grounds" - He therefore found that while a frisk search upon arrest was reasonable, the further strip search at the station was not - The Law Enforcement Review Board affirmed the decision - Detective Allen appealed - At issue was, inter alia, whether the Board adopted the correct standard of review for an appeal to it from the Presiding Officer - The Alberta Court of Appeal held that the appropriate standard of review here was reasonableness - However, since the Board ultimately agreed with the conclusions of the Presiding Officer, any error in the statement of the standard of review did not affect the outcome - See paragraphs 42 and 43.

Cases Noticed:

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [para. 6].

Edmonton Police Service v. Furlong et al. (2013), 544 A.R. 191; 567 W.A.C. 191; 2013 ABCA 121, refd to. [para. 12].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., [2012] 2 S.C.R. 283; 432 N.R. 1; 2012 SCC 35, refd to. [para. 13].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 19].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222; 2010 SCC 27, refd to. [para. 19].

R. v. Loewen (D.J.) (2011), 490 A.R. 72; 497 W.A.C. 72; 32 Alta. L.R.(5th) 203; 2010 ABCA 255, affd. [2011] 2 S.C.R. 167; 415 N.R. 397; 502 A.R. 3; 517 W.A.C. 3; 2011 SCC 21, refd to. [para. 26].

R. v. Phung (J.) (2013), 542 A.R. 392; 566 W.A.C. 392; 2013 ABCA 63, refd to. [para. 26].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 27].

Tomie-Gallant v. Board of Inquiry (1996), 92 O.A.C. 363; 139 D.L.R.(4th) 149 (Div. Ct.), refd to. [para. 27].

Alcohol and Gaming Commission (Ont.) v. 751809 Ontario Inc. (2013), 302 O.A.C. 387; 2013 ONCA 157, refd to. [para. 30].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 34 O.R.(3d) 743; 117 C.C.C.(3d) 193 (C.A.), refd to. [para. 36].

United States v. Robinson (1973), 414 U.S. 218 (S.C.), refd to. [para. 36].

Newton v. Criminal Trial Lawyers' Association (Alta.) et al. (2010), 493 A.R. 89; 502 W.A.C. 89; 38 Alta. L.R.(5th) 63; 2010 ABCA 399, refd to. [para. 43].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 46].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 46].

Wachtler v. College of Physicians and Surgeons (Alta.) (2008), 448 A.R. 317; 447 W.A.C. 317; 2009 ABCA 130, refd to. [para. 52].

Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 52].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 52].

Counsel:

R.S. Abells, Q.C., and L.C. Kelly, for the appellant;

J.C. Dube, for the respondent, Law Enforcement Review Board;

E.D. Norheim, for the respondent, M.E.;

S.D. Johnson, for the respondent, Rod Knecht.

This appeal was heard on May 1, 2013, by Picard and Slatter, JJ.A., and Read, J.(ad hoc), of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered on May 31, 2013.