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Discipline and termination of employment - Termination by employer, with cause - Dishonesty or untrustworthiness

Thursday, March 30, 2017 @ 8:00 PM  

Appeal by Constable A from the dismissal of her application for judicial review of a Law Enforcement Review Board decision, upholding the termination of her employment with the Edmonton Police Service (EPS). Constable A was a 15-year veteran of the EPS with an unblemished performance record prior to the events that led to her termination. In an attempt to protect the identity of a confidential informant in an investigation into the theft of property, Constable A inputted false information in an Information to Obtain a Search Warrant (ITO), obtained a false statement from the confidential informant and prepared a police report that contained the same false information. She disclosed the false information after charges were laid against the suspect. Before the Professional Services Branch of the EPS and at her disciplinary hearing, Constable A denied having wilfully included the false information in the ITO. She was charged with five counts of misconduct. She pleaded guilty to insubordination and was found guilty of the other four charges, two of deceit and two of discreditable conduct by knowingly including false information in a police report and knowingly obtaining a false statement from a witness for disclosure purposes. She appealed her deceit convictions, relating to the ITO and her statement to the Professional Standards Branch, as well as the penalty imposed of dismissal from the EPS. The Board found that the dismissal was an appropriate and reasonable sanction, accepting the Presiding Officer’s conclusion that dismissal was the only penalty available for Constable A’s repeated deceitful conduct. The Board accepted the Officer’s statement that parity in sentencing, while a laudable goal, was not always possible. Constable A’s judicial review application was dismissed for lack of jurisdiction. The reviewing judge stated that even if she had jurisdiction, she would have found the Board’s decision reasonable. The parties agreed that the judge erred on the question of jurisdiction.

HELD: Appeal allowed. The Board’s decision on sanction was quashed and the matter remitted to the Board for further consideration of the appropriate sanction. Alone, the Officer’s finding that dismissal was the only available sanction for Constable A’s deceit was not unreasonable, as he could have based the decision on the facts of the case and not the erroneous presumption that all cases of deceit warranted dismissal. However, the officer’s failure to give adequate consideration to the parity principle and the possibility of Constable A’s rehabilitation, combined with his belief in the inevitability of Constable A’s dismissal, rendered his decision unreasonable and the Board’s decision to uphold it similarly unreasonable.