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A clarified test for the Chief of Police to order a hearing under s. 45(3) of the Police Act

Alberta

,

Canada

In Conlin v. Edmonton (City) Police Services, 2021 ABCA 287, the Alberta Court of Appeal considered the threshold standard by which public complaints against the police are assessed by the Chief of Police under s. 45(3) of the Police Act, RSA 2000, c P-17.

Complaints about the conduct of police officers are initially made to the chief of police. The chief of police investigates the complaints, and then must decide whether and how they should be dealt with. One option is to refer them to a hearing pursuant to s. 45(3) of the Police Act.

A panel of 5 judges heard four appeals that were argued together and that arose out of three sets of facts.

Disciplinary Complaints under the Police Act

In Alberta, the Police Act incorporates a hybrid system of police discipline (para 26). Under s. 45(3), the chief of police performs a gatekeeping function with respect to complaints. In other words, despite the words “actions of a police officer constitute a contravention”, the chief of police is not to “adjudicate” the complaint and decide whether it is proven or not proven (para 28).

The Evidentiary Standard for Directing a Hearing of a Complaint

Slatter J.A., at para 49,  summarized the new test as follows:

Some clarification of the test in Land is appropriate, and the evidentiary threshold for directing a complaint to a hearing can be summarized as follows:

  • The test, overall, is whether there is a “reasonable prospect of establishing the facts necessary for a conviction” at a hearing. This test only requires “a reasonable basis in the evidence” that would support a conviction, not that a conviction be probable or likely. The alternative formulation of the test in Land as being “enough evidence that, if believed, could lead to conviction” has turned out to be less helpful, and it should be avoided.
  • In performing this screening role, the chief of police is entitled to consider, as a whole, all of the evidence that has been gathered by the investigation, both direct and circumstantial, and inculpatory and exculpatory. While a limited weighing of the evidence is appropriate, the chief of police is not to determine if the charges are “proven”, nor the comparative reliability of parts of the evidence. This limited weighing of the evidence can include an assessment of plausibility, reliability and credibility: Taing v. Alberta (Law Enforcement Review Board), 2012 ABCA 138 at paras. 12-13; Callan v. Suncor Inc, 2006 ABCA 15 at para. 15, 380 AR 247.
  • It is always necessary that the allegations, if proven, would disclose an offence under the Police Service Regulation. This, however, is the beginning of the analysis, not the end. It is not sufficient that there is some evidence before the chief that, if believed, could lead a reasonable and properly instructed person to convict the police officer at a disciplinary hearing. This is inconsistent with the ability of the chief police to consider all of the evidence on the record in its totality, and the chief’s ability to conduct some preliminary weighing of the evidence to determine if there is a reasonable prospect of conviction. The chief is entitled to take a realistic view of the evidence using the lens of his experience with policing.

This is an appropriate way to approach the evidentiary threshold for directing a hearing. This evidentiary threshold, however, exists within the broader context of the discretion given to the chief of police by the statute.

April 14, 2022
Conlin v. Edmonton (City) Police Services, 2021 ABCA 287