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REGULATED OCCUPATIONS - Administration - Police officers

Wednesday, February 21, 2018 @ 8:46 AM  

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Appeal by a police officer from a decision of the Law Enforcement Review Board upholding a decision dismissing him from the Edmonton Police Service (EPS). In 2005, a lawyer complained to the EPS about inappropriate t-shirts worn by the appellant and others at a baseball tournament. A disciplinary hearing was directed against the detective who commissioned and distributed the t-shirts. The lawyer appealed the adequacy of the punishment and the decision not to lay charges against the appellant and others who wore the t-shirts. At the appeal hearing, the appellant, who had been summoned as a witness by the lawyer, was observed by a Board staff member and two Board members to have been looking at materials at counsel’s table during a break. The lawyer subsequently complained to EPS about the appellant’s behaviour at the hearing, which resulted in a disciplinary charge. During the investigation, the appellant provided a sworn statement in which he denied looking at the materials. In 2012, the appellant was found guilty of discreditable conduct for having looked at the materials, after his testimony denying that he did so was disbelieved. That led to further disciplinary charges for deceit in 2013. The appellant’s application to have the sworn statement and his prior testimony excluded from evidence was dismissed. The Presiding Officer found that the appellant had been deceitful in both his sworn statement and in his testimony in relation to the 2012 hearings and the appellant was convicted. As penalty, he was dismissed. The convictions and the dismissal were upheld on appeal. The appellant appealed arguing that the Board erred in its application of the standard of review to the Presiding Officer’s rulings on admissibility, merits and penalty made in 2015 and created a new category of disciplinary offence mandating dismissal.

HELD: Appeal dismissed. The Board articulated and applied the correct standard of review, reasonableness. The Presiding Officer did not err in admitting the sworn statement and the testimony into evidence. S. 51 of the Police Act did not protect a police officer from the use of his earlier evidence in a later disciplinary hearing for deceit. S. 10(3) of the Regulations did not preclude the admission of disbelieved statements into evidence in a proceeding to prove the statements were false. Section 6(2) of the Alberta Evidence Act did not operate to exclude the sworn statement because to the extent that it was found to conflict with the Police Act, the Police Act applied. In concluding that the appellant had lied, it was not unreasonable for the Presiding Officer to rely on the earlier findings. Given that the appellant’s dishonesty was serious, premeditated and repeated which he failed to take responsibility for, he was no longer fit for duty. There was a risk to the administration of law in retaining a police officer who had lied under oath which justified the penalty of dismissal.

Toy v. Edmonton (City) Police Service, [2018] A.J. No. 101, Alberta Court of Appeal, P.T. Costigan, M.B. Bielby and F.L. Schutz JJ.A., January 30, 2018. Digest No. TLD-Feb192018005