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

• Judge: Ritter, Slatter and Rowbotham, JJ.A.
• Neutral Citation: 2010 ABCA 400
• Citation: 2010 ABCA 400,(2010), 493 A.R. 335 (CA),328 DLR (4th) 156,40 Alta LR (5th) 186,493 AR 335,(2010), 493 AR 335 (CA),493 A.R. 335,328 D.L.R. (4th) 156
• Date: 05 October 2010
• Court: Court of Appeal (Alberta)

Pelech v. LERB (2010), 493 A.R. 335 (CA);

      502 W.A.C. 335

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. DE.089

Detective Dave Pelech (appellant) v. Law Enforcement Review Board and The Criminal Trial Lawyers' Association (respondents) and Mike Boyd, Chief of the Edmonton Police Service (other party) and Edmonton Police Association (intervenor)

(0903-0224-AC; 2010 ABCA 400)

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

Alberta Court of Appeal

Ritter, Slatter and Rowbotham, JJ.A.

December 17, 2010.

Summary:

This matter arose from the alleged wearing of inappropriate T-shirts by police officers at a slow-pitch baseball tournament held by the Edmonton Police Association and at a general meeting of the Edmonton Police Association. Detective Pelech admitted that he designed and distributed the T-shirts for his team to wear at the baseball tournament. The Acting Chief of Police directed that an investigation be conducted into the allegations regarding the tournament. As a result, Pelech was charged with discreditable conduct with respect to the wearing of the T-shirts at the baseball tournament. The Chief of Police directed a second investigation into the events at the Police Association general meeting. The Chief of Police concluded there was no reasonable prospect of establishing the facts necessary for conviction and dismissed the complaint under s. 45(4) of the Police Act. The Criminal Trial Lawyers' Association appealed to the Law Enforcement Review Board. The Board conducted a viva voce hearing of the appeal. The Board concluded that there was sufficient evidence to show that a disciplinary offence could be found to have been committed. It directed the Chief of Police to hold a hearing. The Board also directed that the Chief reinvestigate what happened at the Edmonton Police Association general meeting. Pelech appealed from the Board's decision.

The Alberta Court of Appeal allowed the appeal. The Board failed to apply the correct standard of review to the decision of the Chief of Police. There was nothing unreasonable about the decision of the Chief of Police to terminate the investigation into the allegations about the Police Association general meeting without a hearing. The Board's direction that the Chief of Police direct a hearing into the allegations against Pelech was set aside.

Police - Topic 4064.3

Internal organization - Discipline of members - Complaint - Determination of whether hearing to be held - This matter arose from the alleged wearing of inappropriate T-shirts by police officers at a baseball tournament held by the Edmonton Police Association and at a general meeting of the Edmonton Police Association - Detective Pelech admitted that he designed and distributed the T-shirts for his team to wear at the baseball tournament - The Acting Chief of Police directed that an investigation be conducted into the allegations regarding the tournament - As a result, Pelech was charged with discreditable conduct with respect to the wearing of the T-shirts at the baseball tournament - The Chief of Police directed a second investigation into the events at the Police Association general meeting - The Chief of Police concluded that there was no reasonable prospect of establishing the facts necessary for conviction and dismissed the complaint under s. 45(4) of the Police Act - The Criminal Trial Lawyers' Association appealed to the Law Enforcement Review Board - The Board concluded that there was sufficient evidence to show that a disciplinary offence could be found to have been committed and it directed the Chief of Police to hold a hearing - Pelech appealed - The Alberta Court of Appeal allowed the appeal - There was nothing unreasonable about the decision of the Chief of Police to terminate the investigation into the allegations about the general meeting without a hearing - In deciding whether there was sufficient evidence to make a conviction likely, the whole context had to be examined - In this case, not one witness reported seeing anyone wearing the offending T-shirts at the general meeting - There was no evidence that the T-shirts even existed - The court further stated that "The strength of the case is not the only relevant factor in deciding whether a hearing should be held. The Chief is entitled to have regard to the seriousness of the offence, and the other circumstances. The tournament and the meeting were three days apart, and as the Chief of Police noted the two complaints 'are essentially one and the same'. Since the unacceptability of the T-shirt logos had been confirmed in the proceedings relating to the baseball tournament, it was open to the Chief to decide that the dedication of further resources to investigating the complaint about the general meeting was not warranted" - See paragraphs 34 to 41.

Police - Topic 4161

Internal organization - Discipline - Appeals and judicial review - General (incl. standard of review) - [See Police - Topic 4166 ].

Police - Topic 4166

Internal organization - Discipline - Appeals and judicial review - Powers of appeal board - The Chief of Police directed an investigation into the alleged wearing of inappropriate T-shirts by police officers at a general meeting of the Edmonton Police Association - The Chief of Police concluded there was no reasonable prospect of establishing the facts necessary for conviction and dismissed the complaint under s. 45(4) of the Police Act - The Criminal Trial Lawyers' Association appealed to the Law Enforcement Review Board - The Board conducted a viva voce hearing of the appeal and concluded that there was sufficient evidence to show that a disciplinary offence could be found to have been committed - It directed the Chief to hold a hearing - The Alberta Court of Appeal allowed an appeal - The court stated that "the decision of the Board to conduct a de novo hearing, and to assume that it owed no deference to the findings of the Chief of Police was in error. The role of the Board is primarily to sit on appeal from the Chief. The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the Chief, and the conclusions reached by him. Deference is owed where the primary issue is factual and relates to the adequacy of the evidence, and the standard of review is reasonableness. Unless his decision was unreasonable, or unless the Board decides that the process before the Chief was compromised in a way that calls into play the Board's mandate to provide civilian oversight, the Board should not intervene" - See paragraphs 20 to 33.

Cases Noticed:

Newton v. Criminal Trial Lawyers' Association (Alta.) et al. (2010), 493 A.R. 89; 502 W.A.C. 89; 2010 ABCA 399, refd to. [para. 19].

Edwards et al. v. Law Enforcement Review Board (Alta.) et al. (2010), 477 A.R. 247;  483 W.A.C. 247; 25 Alta. L.R.(5th) 65; 2010 ABCA 77, refd to. [para. 25].

Co-operators General Insurance Co. v. Great Pacific Industries Inc. (1998), 219 A.R. 90; 179 W.A.C. 90; 64 Alta. L.R.(3d) 323; 1998 ABCA 272, refd to. [para. 30].

Higgins et al. v. Camrose No. 22 (County) et al. (1995), 169 A.R. 16; 97 W.A.C. 16; 29 Alta. L.R.(3d) 160 (C.A.), refd to. [para. 30].

Western Securities Ltd. et al. v. Foothills No. 31 (Municipal District) et al. (1981), 35 A.R. 480; 17 Alta. L.R.(2d) 164 (C.A.), refd to. [para. 30].

Sarg Oils Ltd. et al. v. Environmental Appeal Board (Alta.) et al., [2007] A.R. Uned. 348; 75 Admin. L.R.(4th) 314; 2007 ABCA 215, refd to. [para. 36].

Edwards et al. v. Law Enforcement Review Board (Alta.) et al. (2009), 469 A.R. 25; 470 W.A.C. 25; 2009 ABCA 383, refd to. [para. 36].

Alberta Liquor Store Association et al. v. Gaming and Liquor Commission (Alta.) et al. (2006), 406 A.R. 104; 69 Alta. L.R.(4th) 98; 2006 ABQB 904, refd to. [para. 36].

Statutes Noticed:

Police Act, R.S.A. 2000, c. P-17, sect. 45(1), sect. 45(3), sect. 45(4), sect. 48(2) [para. 7].

Counsel:

R.S. Abells, Q.C., for the appellant;

S.P. McDonough, for the respondent, Law Enforcement Review Board;

E.D. Norheim, for the respondent, Criminal Trial Lawyers' Association;

S.D. Johnson, for the respondent, Mike Boyd, Chief of the Edmonton Police Service;

R. Khullar, for the intervenor, Edmonton Police Association.

This appeal was heard on October 5, 2010, before Ritter, Slatter and Rowbotham, JJ.A., of the Alberta Court of Appeal. The following reasons for judgment reserved of the Court of Appeal were delivered by Slatter, J.A., and were filed on December 17, 2010.