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REGULATED OCCUPATIONS - Administration - Inquiries and hearings - Appeals - Judicial review - Occupations - Police officers

Friday, November 10, 2017 @ 8:37 AM  

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Appeal by the Chief of Police of the Edmonton Police Service (Chief) from an order requiring him to hold a disciplinary hearing. Fermaniuk, a police officer, complained about the actions of another police officer. The Chief dismissed the complaint, concluding that the evidence did not reveal a reasonable prospect of obtaining a conviction for any disciplinary offence. Fermaniuk appealed. The Law Enforcement Review Board (Board) allowed the appeal, finding that there was a reasonable prospect that the officer’s conduct could constitute the offence of discreditable conduct and that the Chief had adopted an unreasonably narrow view of the information that was subject to a police officer’s duty of confidence. The Board directed the Chief to lay disciplinary charges against the other officer and hold a hearing. The Chief did not follow the Board’s direction. Instead, the Chief screened the matter a second time and determined that the matter was not serious enough to justify a disciplinary hearing. Relying on s. 45(4) of the Police Act, he dismissed the complaint. Fermaniuk applied for judicial review of the Chief’s decision. The reviewing judge found that the Chief acted without jurisdiction when he relied on s. 45(4) of the Police Act to dismiss the complaint, as he could not invoke that section if he believed that the officer had committed a disciplinary offence. He ordered the Chief to hold a disciplinary hearing. The Chief appealed, arguing that he had absolute screening powers and he did not err in disposing of the complaint pursuant to s. 45(5) of the Police Act despite the Board ordering a hearing.

HELD: Appeal dismissed. The reviewing judge reached the correct conclusion, but for the wrong reasons. The reference to ordering a hearing under s. 45(3) in s. 20(2)(b)(ii) of the Police Act did not imply that the Board remitted the matter back to the Chief for him to re-screen the alleged disciplinary offence. Instead, it empowered the Board to overturn the Chief’s screening decision and substitute its own decision. In this case, the Board substituted its direction that the allegations advance to a discipline hearing. Although s. 45(4) applied notwithstanding s. 45(3), this did not detract from the Board’s power to order a hearing. Since the Chief disposed of the matter under s. 45(3), it was open to Fermaniuk to appeal the decision to the Board and on appeal the Board had the power to order a hearing.

Fermaniuk v. Edmonton (City) Police Service, [2017] A.J. No. 1083, Alberta Court of Appeal, P.T. Costigan, F.F. Slatter and B.L. Veldhuis JJ.A., October 18, 2017. Digest No. TLD-November62017009