Sterzik and Calgary Police Association v. Beattie, Calgary Chief Police Constable and Calgary Police Service, (1986) 76 A.R. 112 (CA)

• Court: Court of Appeal (Alberta)
• Case Date: December 03, 1986
• Jurisdiction: Alberta
• Citations: (1986), 76 A.R. 112 (CA)

Sterzik v. Beattie (1986), 76 A.R. 112 (CA)

MLB headnote and full text

Sterzik and Calgary Police Association v. Superintendent James Beattie, Chief Police Constable of the City of Calgary and City of Calgary Police Service

(No. 17795)

Indexed As: Sterzik and Calgary Police Association v. Beattie, Calgary Chief Police Constable and Calgary Police Service

Alberta Court of Appeal

Laycraft, C.J.A., McClung, J.A., and Lutz, J. (ad hoc)

December 3, 1986.

Summary:

A police officer was charged under the Municipal Police Disciplinary Regulations with failing to exercise discretion and restraint in the use and care of firearms. The officer appeared for a hearing. The presiding officer adjourned the hearing to allow the police service to seek the advice of the Solicitor-General as to whether disciplinary proceedings should proceed. Subsequently, the presiding officer adjourned the hearing sine die. The officer was recharged and a new hearing date was set. The officer challenged the second hearing, submitting that it was an abuse of process; that the adjournment to allow the police service to seek advice violated s. 8(1) of the Regulations; and that the presiding officer lacked jurisdiction to adjourn a hearing sine die. The presiding officer ordered that the hearing proceed. The office applied for a writ of prohibition to prohibit the holding of a second hearing.

The Alberta Court of Queen's Bench, in a judgment reported 62 A.R. 390, allowed the application. The court held that s. 8(1) was violated; that the presiding officer exceeded his jurisdiction in adjourning the hearing sine die; and that the second charge constituted an abuse of process. The Calgary Police Service appealed.

The Alberta Court of Appeal allowed the appeal and quashed the writ of prohibition. The court agreed with the trial judge on all matters except one; the court held that the second charge did not constitute an abuse of process.

Administrative Law - Topic 24

Abuse of process - What constitutes - A police officer was charged with violating the Municipal Police Disciplinary Regulations - The hearing was adjourned in violation of s. 8(1) of the Regulations - Subsequently, the presiding officer exceeded his jurisdiction by adjourning the hearing sine die - The officer was recharged and a new hearing was scheduled - The Alberta Court of Queen's Bench held that the second charge constituted an abuse of process, even though jurisdiction over the first charge had been lost - The court stated that the second charge was irregular, unfair and oppressive - The Alberta Court of Appeal held that there was no abuse of process, where jurisdiction over the first offence was lost and there was no ulterior or deceitful motive in laying the second charge.

Police - Topic 4185

Internal organization - Discipline - Hearings - Adjournments - Before a disciplinary hearing commenced, the presiding officer granted an adjournment to allow the police service to seek advice from the Solicitor-General - The presiding officer relied on the powers to adjourn found in ss. 8(1)(e) and 58(3)(a) of the Municipal Police Disciplinary Regulations - The Alberta Court of Appeal affirmed that the presiding officer had no jurisdiction to adjourn for this purpose, because s. 8(1)(e) did not apply to full disciplinary hearings and s. 58(3)(a) applied only where the hearing had commenced and evidence was introduced.

Police - Topic 4185

Internal organization - Discipline - Hearings - Adjournments - Section 31 of the Municipal Police Disciplinary Regulations authorized the presiding officer to adjourn a hearing, "but no such adjournment shall unduly delay the hearing" - The Alberta Court of Appeal affirmed that s. 31 clearly provided that the presiding officer had no jurisdiction to adjourn a hearing sine die.

Cases Noticed:

R. v. Boross (1984), 53 A.R. 257, refd to. [para. 5].

Statutes Noticed:

Municipal Police Disciplinary Regulations, Reg. 179/74, sect. 5, sect. 6, sect. 7, sect. 8, sect. 16(2), sect. 31, sect. 32 [para. 1].

Counsel:

C.D. Evans, Q.C., for Constable Robert Sterzik and the Calgary Police Association;

G.W. Stapon, for Superintendent James Beattie, the Chief Constable of the City of Calgary and the City of Calgary Police Service.

This appeal was heard on December 3, 1986, before Laycraft, C.J.A., McClung, J.A., and Lutz, J. (ad hoc), of the Alberta Court of Appeal.

On December 3, 1986, Laycraft, C.J.A., delivered the following memorandum of judgment orally from the bench for the court: