Camrose Police Service v. MacDonald et al., (2013) 566 A.R. 141

• Judge: Hunt, Watson and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 29, 2013
• Citations: (2013), 566 A.R. 141;2013 ABCA 422

Police Service v. MacDonald (2013), 566 A.R. 141; 597 W.A.C. 141 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. DE.047

The Chief of Police of the Camrose Police Service (appellant) v. Cst. Jeffrey MacDonald (#85) and The Law Enforcement Review Board (respondents)

(1303-0094-AC; 2013 ABCA 422)

Indexed As: Camrose Police Service v. MacDonald et al.

Alberta Court of Appeal

Hunt, Watson and Bielby, JJ.A.

December 6, 2013.

Summary:

A presiding officer at a disciplinary hearing terminated the employment of a police officer (MacDonald) upon receiving his guilty plea to eight counts of misconduct. The Law Enforcement Review Board overturned the decisions and ordered MacDonald's reinstatement, subject to an 80 hour suspension without pay and a reduction in seniority. The Chief of Police applied for leave to appeal.

The Alberta Court of Appeal, in a decision reported at [2013] A.R. Uned. 167, granted leave to appeal. The appeal proceeded.

The Alberta Court of Appeal allowed the appeal and returned the matter for further consideration in accordance with the court's decision.

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - The presiding officer at a disciplinary hearing terminated the employment of a police officer (MacDonald) - The Law Enforcement Review Board overturned the decision and ordered MacDonald's reinstatement, subject to a suspension without pay and a reduction in seniority - The Chief of Police appealed - The Board filed a factum - The Alberta Court of Appeal, in allowing the appeal, expressed concerns that the Board's factum overstepped the line limiting its role on appeal from one of its own decisions - While the factum started and ended with a statement that the Board was taking no position on any issue other than jurisdiction, it had attempted to defend its decision by arguing that it correctly applied the standard of reasonableness - In making the impugned decision, the Board was exercising an adjudicative function - Two adverse parties participated in the appeal, independent of the Board's involvement - They had effectively made the necessary arguments - The case exemplified the concern about the appearance of independence in a tribunal which might be (and in this case was) charged with remaking the decision which was successfully set aside on appeal - The Police Act, which governed appeals to the Board, did not give the Board party status in appeals from its decision - The court disregarded the Board's written submissions which attempted to defend the merits of its decision or to supplement its written reasons already given - See paragraphs 39 to 44.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - The presiding officer at a disciplinary hearing terminated the employment of a police officer (MacDonald) - The Law Enforcement Review Board overturned the decision and ordered MacDonald's reinstatement, subject to a suspension without pay and a reduction in seniority - The Alberta Court of Appeal allowed an appeal - The Board correctly identified that the presiding officer's decision was reviewable on the standard of reasonableness - However, it did not frame the issue by asking itself whether the dismissal fell within the range of acceptable reasonable results - The Board appeared to jump to the conclusion that dismissal was an unreasonable outcome - It substituted its own preferred outcome for that of the presiding officer running afoul of the directions in Khosa v. Canada (Minister of Citizenship and Immigration) (2009 SCC) that, "... as long as the process and the outcome fit comfortably within the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome" - See paragraphs 25 to 29.

Police - Topic 4161

Internal organization - Appeals and judicial review - General (incl. standard of review) - [See Administrative Law - Topic 9122 ].

Police - Topic 4161

Internal organization - Appeals and judicial review - General (incl. standard of review) - The presiding officer at a disciplinary hearing terminated the employment of a police officer (MacDonald) upon receiving his guilty plea to eight counts of misconduct - The Law Enforcement Review Board overturned the decision and ordered MacDonald's reinstatement, subject to an 80 hour suspension without pay and a reduction in seniority - The Chief of Police appealed - The Alberta Court of Appeal stated that the Board's choice of a standard of review and its application of that standard had to be correct - The presiding officer's decisions as to facts and exercises of discretion were reviewable by the Board for reasonableness - If the Board chose and applied the correct standard of review, its decision on an appropriate sanction for misconduct were generally reviewable by the court on the standard of reasonableness unless an extricable question of law requiring a review on the correctness standard was involved - Generally deference was owed to the decision under review - See paragraphs 22 to 24.

Police - Topic 4161

Internal organization - Appeals and judicial review - General (incl. standard of review) - The presiding officer at a disciplinary hearing terminated the employment of a police officer (MacDonald) upon receiving his guilty plea to eight counts of misconduct - The Law Enforcement Review Board overturned the decisions and ordered MacDonald's reinstatement, subject to an 80 hour suspension without pay and a reduction in seniority - The Alberta Court of Appeal allowed an appeal - The Board erred in concluding that its review of the presiding officer's decision required closer scrutiny because the circumstances triggered its civilian oversight role into the police disciplinary process - The court in Furlong v. Edmonton Police Service et al. (2013, Alta. C.A.), observed that the civilian oversight mandate generally came into play when the Board determined that, in relation to the discipline of a police officer, there was a lack of transparency, some compromise of the process, or some other reason which arose when standards of police conduct were engaged at a policy level - No such determination was made here - See paragraph 30.

Police - Topic 4163

Internal organization - Appeals and judicial review - Jurisdiction - [See third Police - Topic 4161 ].

Police - Topic 4166

Internal organization - Discipline, appeals and judicial review - Powers of appeal board - [See Administrative Law - Topic 8843 ].

Police - Topic 4172

Internal organization - Discipline - Appeals and judicial review - Evidence - The presiding officer (the officer) at a disciplinary hearing terminated the employment of a police officer (MacDonald) upon receiving his guilty plea to eight counts of misconduct - The officer found no nexus between MacDonald's depression and his misconduct given that the two psychologists who testified on his behalf could not state what MacDonald's mental state was on the date of the misconduct and there was nothing in MacDonald's own testimony to convince him that the offences were precipitated by depression - The Law Enforcement Review Board overturned the decision - The Alberta Court of Appeal held that the Board correctly identified errors by the officer in assessing the expert evidence and was entitled to conclude that it was unreasonable for the officer to put no weight on the evidence and to ignore the other evidence suggesting that MacDonald was depressed at the time of the misconduct - It was therefore open to the Board to conclude that it was unreasonable for the officer to fail to find the nexus between depression and the misconduct - Because the officer rejected the depression evidence, he did not assess whether MacDonald's personal circumstances could be excused or explained by depression - He therefore did not examine whether that depression might nevertheless be mitigating as showing that MacDonald's position was not beyond repair and that something short of outright dismissal might meet policy and public interest objectives - See paragraphs 31 to 33.

Police - Topic 4174

Internal organization - Discipline, appeals and judicial review - Arguments not previously raised - The presiding officer (the officer) at a disciplinary hearing terminated the employment of a police officer (MacDonald) upon receiving guilty pleas - MacDonald appealed, asserting for the first time that he had not been given 14 days to provide an explanation for his misconduct (Police Service Regulation, s. 10) - The Law Enforcement Review Board, in substituting a different penalty, stated that the breach of s. 10 was a significant enough mitigating factor to make dismissal unreasonable - The Alberta Court of Appeal stated that, as s. 10 was not raised before the officer, the Board could not be said to have erred by substituting its opinion for the officer's - However, to the extent that procedural breaches could be raised in mitigation of penalty, it was an error to consider them as mitigating here given the Board's observation that the Chief was prejudiced by MacDonald's failure to raise s. 10 before the officer - Had the matter been raised at a stage where it was still open to the Chief to lead evidence on the point, he might have done so - Further, it was erroneous for the Board to mitigate penalty as a result of its inference that MacDonald lied only because he was not given proper time to respond absent evidence from him on that point - See paragraphs 34 to 38.

Police - Topic 4208

Internal organization - Discipline - Punishment - Considerations - [See Police - Topic 4174 ].

Cases Noticed:

Edmonton Police Service v. Furlong et al. (2013), 544 A.R. 191; 567 W.A.C. 191; 2013 ABCA 121, leave to appeal granted 2013 ABCA 225, refd to. [para. 20].

Allen v. Law Enforcement Review Board (Alta.) et al. (2013), 553 A.R. 140; 583 W.A.C. 140; 2013 ABCA 187, refd to. [para. 22].

Zalaski v. Law Enforcement Review Board (Alta.) et al. (2013), 561 A.R. 136; 594 W.A.C. 136; 2013 ABCA 347, refd to. [para. 24].

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. 25].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 25].

Leon's Furniture Ltd. v. Information and Privacy Commissioner (Alta.) et al. (2011), 502 A.R. 110; 517 W.A.C. 110; 2011 ABCA 94, refd to. [para. 39].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, refd to. [para. 40].

Children's Lawyer for Ontario v. Goodis et al. (2005), 196 O.A.C. 350; 75 O.R.(3d) 309; 253 D.L.R.(4th) 3898 (C.A.), refd to. [para. 41].

Timberwolf Log Trading Co. v. Commissioner, Forest Act (B.C.) et al. (2011), 301 B.C.A.C. 178; 510 W.A.C. 178; 331 D.L.R.(4th) 405; 2011 BCCA 70, refd to. [para. 41].

Canada (Attorney General) v. Quadrini (2010), 409 N.R. 141; 2010 FCA 246, refd to. [para. 41].

1447743 Alberta Ltd. v. Calgary (City) et al. (2011), 502 A.R. 330; 517 W.A.C. 330; 2011 ABCA 84, refd to. [para. 43].

Beier et al. v. Subdivision and Development Appeal Board (Vermilion River (County) (2009), 457 A.R. 191; 457 W.A.C. 191; 2009 ABCA 151, refd to. [para. 43].

Silverfox v. Chief Coroner (Yuk.) (2013), 342 B.C.A.C. 189; 585 W.A.C. 189; 2013 CarswellYukon 62; 2013 YKCA 11, refd to. [para. 43].

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. 46].

Pelech v. Law Enforcement Review Board (Alta.) et al. (2010), 493 A.R. 335; 502 W.A.C. 335; 2010 ABCA 400, refd to. [para. 46].

Counsel:

D.A. Cranna, for the appellant;

P.G. Nugent, for the respondent, Cst. Jeffrey MacDonald #85;

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

This appeal was heard on October 29, 2013, by Hunt, Watson and Bielby, JJ.A., of the Alberta Court of Appeal. Bielby, J.A., filed the following reserved reasons for judgment at Edmonton, Alberta, on December 6, 2013.