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REGULATED OCCUPATIONS - Administration – Board and tribunals - Appeals - Occupations - Police officers

Thursday, June 08, 2017 @ 8:28 AM  

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Application by Braile for leave to appeal a decision of the Law Enforcement Review Board upholding the Presiding Officer’s decision to dismiss Braile from the police force for misconduct. After returning from a mental health leave, Braile engaged in a lengthy and dangerous high-speed chase, contrary to police policy, that ultimately ended in a crash that injured a civilian and threatened the safety of numerous others. He also provided false, misleading or inaccurate comments to the dispatcher during the chase and to his superiors afterwards in an attempt to conceal from them the existence of the chase. Braile was convicted of nine charges. During the penalty hearing, Braile led evidence that he suffered from a mental disorder during the relevant time and argued that dismissal was not the appropriate penalty because of his mental disorder. The Presiding Officer did not accept that there was a sufficient nexus between Braile’s mental disorder and his misconduct to excuse Braile’s actions. Braile argued that the Board should have recognized that the Presiding Officer misallocated the legal burden of proof and misstated and misapplied the standard of proof. He argued the Presiding Officer should not have treated Braile’s submissions on mental disorder as a defence under which he assumed the burden of proof.

HELD: Application allowed in part. Leave to appeal was granted on the questions of whether the Board erred in its allocation of the legal burden of proof in the penalty assessment decision, and whether the Board erred in concluding that the Presiding Officer applied the correct standard of proof in the penalty assessment decision. The Presiding Officer’s conclusion showed the important role the burden of proof and the standard of proof could play in the result. The burden and standard of proof at a professional disciplinary hearing under the Police Act, and in particular, who had the legal burden of proof at the penalty stage, given the circumstances and limited admission, were significant issues. Braile had demonstrated that the case was at least arguable on both points. Given the Presiding Officer’s own acknowledgement that dismissal would have been inappropriate if the connection between the mental disorder and misconduct was established, the mental disorder was treatable, and there was a low likelihood of future misconduct arising from the same cause, there was some basis to believe that one or more of the alleged errors, if they existed, might have affected the outcome.

Braile v. Calgary (City) Police Service, [2017] A.J. No. 472, Alberta Court of Appeal, S.L. Martin J.A., May 10, 2017. TLD-June52017008