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REGULATED OCCUPATIONS - Occupations - Police officers

Monday, April 09, 2018 @ 8:44 AM  

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Appeal by Sergeant Braile from a decision by the Alberta Law Enforcement Review Board affirming his dismissal from his employment with the Calgary Police Service (CPS). The appellant was dismissed from the CPS for misconduct related to a prolonged and dangerous high-speed police pursuit in 2008. The pursuit was conducted contrary to CPS policy and resulted in serious injury to a person unconnected to the chase. The appellant faced ten disciplinary counts that included discreditable conduct, insubordination, deceit, and neglect of duty. He pled guilty to nine of the counts and was convicted accordingly. The liability decision was not appealed. At the penalty hearing, the parties agreed that, in the absence of sufficient mitigating medical evidence, the appellant should be dismissed from the CPS. The appellant adduced evidence that he was suffering from a mental illness, bipolar spectrum disorder, at the time of the incident. The Presiding Officer accepted the evidence, but found that it was insufficient to mitigate the appellant's actions. The Board affirmed the decision. Sergeant Braile appealed.

HELD: Appeal dismissed. The Law Enforcement Review Board did not err in assessing the allocation of the legal burden of proof in the penalty assessment decision. This was not a case in which one legal burden of proof attached to the disciplinary proceeding as a whole. An additional legal burden arose when the appellant raised the issue of mitigation. The appellant bore the onus of proving the mitigating circumstances that would have reduced his penalty. More specifically, the burden was on the appellant to establish that he had a mental illness at the time of the incident, and that there was a nexus between that illness and the incident. The Board did not err in concluding that the Presiding Officer applied the correct standard of proof in the penalty assessment decision. Although the Presiding Officer's recital of the test for the balance of probabilities was erroneous, the application of that test did not result in any error.

Braile v. Calgary (City) Police Service, [2018] A.J. No. 333, Alberta Court of Appeal, P.A. Rowbotham, B.K. O'Ferrall and T.W. Wakeling JJ.A., March 20, 2018. Digest No. TLD-April92018002