ALBERTA LAW ENFORCEMENT REVIEW BOARD

Transcription

1 ALBERTA LAW ENFORCEMENT REVIEW BOARD Citation: Monaghan v Edmonton (Police Service), 2015 ABLERB 07 Date: Appellant: Respondent: Tyson Monaghan Chief of Police, Edmonton Police Service Officers: Cst. D. Behiels (No. 3280), Cst. K. Brown (No. 3088), Cst. M. Chernyk (No. 2789), Cst. J. Henderson (No. 2913), Sgt. J. Morrison (No. 2373), Det. W. Peachman (No. 2301), Cst. J. Ruecker (No. 2921) Panel Members: Edward Lawson, Brian Gifford, Benjamin Ayorech Summary: The appellant made numerous allegations regarding his treatment by the respondents after he was detained following a traffic stop involving the vehicle he was riding in. The appellant was detained and arrested due to outstanding warrants. He alleged that the respondents had mistreated him, causing him personal injuries, and were generally disrespectful towards him. The appellant alleged that the Chief misapprehended the threshold for determining whether sufficient evidence existed to send a matter for a disciplinary hearing, that the investigation into his allegations was flawed and that the standard of review to be used in this instance was that of correctness. The Board concludes that there was no mistreatment of the appellant by the respondent officers and that the Chief used the correct threshold. Further, the investigation was thorough and extensive, and did not engage the Board s civilian oversight mandate. The proper standard of review was that of reasonableness. Authorities Considered: Pelech v Law Enforcement Review Board, 2010 ABCA 400; Land v Law Enforcement Review Board, 2013 ABCA 435; Alberta (Information and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61; Calgary (Police Service) v Alberta (Law Enforcement Review Board), 2013 ABCA 124; R v Truong, 2011 ABPC 181; R v RDS, [1997] 3 SCR 484; Bizon v Bizon & O Donnell 2014 ABCA 174; Ontario v MacDonald [2009] OJ No Legislation Considered: Police Act, RSA 2000, c P-17; Police Service Regulation, Alta Reg 356/1990 INTRODUCTION [1] This appeal arises out of a traffic stop made by members of the Edmonton Police Service ( EPS ) on July 17, On that date, respondent Ruecker stopped a vehicle after running a registration search on it and noting that the apparent age of the driver did not match the age of the registered owner.

2 Alberta Law Enforcement Review Board 2015 ABLERB 07 2 [2] In the vehicle were the appellant and a friend of his, B, who was driving the vehicle. Respondent Ruecker ran computer searches for both of them and found that each had outstanding warrants. He informed both that they were under arrest and asked them to exit the vehicle. [3] Respondent Ruecker alleges that the appellant became angry and confrontational, refusing to exit the vehicle. He indicates that the appellant telephoned his mother who attended at the scene and also became angry and confrontational. As a result, respondent Ruecker called for assistance. [4] The appellant alleges that after the vehicle was stopped by respondent Ruecker, he approached them and informed them that the reason he stopped the vehicle was due to bandages on the appellant s neck. [5] There is some agreement between the parties as to what occurred next. They both agree that the appellant was handcuffed, placed in the back of a police car, driven to the police station and placed in a holding cell. Emergency Medical Services ( EMS ) was called to give the appellant a medical examination. [6] The respondents allege that the appellant was belligerent, rude and non-co-operative, yelling and swearing at them. The appellant alleges that in fact it was the officers who were rude and rough in their treatment of him. [7] The appellant s allegations were condensed by the Chief in his decision into 15 separate allegations as follows: 1. Unlawful or Unnecessary Exercise of Authority Respondent Ruecker stopping the vehicle illegally; because of the bandages on the appellant s neck. 2. Discreditable Conduct Respondent Ruecker warning the appellant and his friend that he would shoot them if they tried anything and then chuckling. 3. Discreditable Conduct Respondent Ruecker aggressively telling the appellant s mother to back away from the vehicle. 4. Discreditable Conduct Respondent Ruecker making the comment Aren t these fucking peaches in reference to the appellant and his mother. 5. Unlawful or Unnecessary Exercise of Authority Respondent Ruecker grabbing

3 Alberta Law Enforcement Review Board 2015 ABLERB 07 3 the handcuff chain while the appellant was handcuffed and lifting up on it causing the appellant pain. 6. Discreditable Conduct Unknown the appellant alleged that an unknown officer yelled at him to Get in the fucking car. 7. Discreditable Conduct Respondent Ruecker refusing to assist the appellant into the police car after being asked for assistance. 8. Unlawful or Unnecessary Exercise of Authority Respondent Henderson refusing to roll down a window in the police car while transporting the appellant to the police station despite being instructed to do so by respondent Morrison. 9. Discreditable Conduct Respondent Henderson smiling at the appellant in his rear view mirror while rolling down a window in the police car upon arrival at the police station. 10. Unlawful or Unnecessary Exercise of Authority Respondent Henderson pulling the appellant from the police car upon arrival at the police station and then walking him really quickly into the station causing the appellant pain. 11. Unlawful or Unnecessary Exercise of Authority Respondent Brown being the other officer who walked the appellant quickly into the police station causing him pain. 12. Discreditable Conduct Unknown Officer later identified as respondent Chernyk lying to EMS telling them that the appellant was feigning passing out and that the only pain in the neck was that being suffered by the police as the appellant was one of those characters. 13. Discreditable Conduct Unknown Officer later identified as respondent Behiels making the comment whatever happens to him, he deserves it with respect to the appellant while the appellant was at the hospital on the night of July 16, 2011 for a neck wound. 14. Complaint of Service EPS failing to ensure that the appellant received adequate and timely medical assistance while at the West Division police station. 15. Complaint of Service EPS that the appellant was told by police and EMS personnel that if he went to the hospital it would prolong his arrest so he should shut up about it as it would be a waste of time and not help the appellant. [8] In his decision dated July 10, 2014, the Chief declined to order any of the allegations to

4 Alberta Law Enforcement Review Board 2015 ABLERB 07 4 proceed to a disciplinary hearing, with the exception of the second allegation. [9] The appellant indicated at the appeal hearing that he was not pursuing allegations 10, 11 or With respect to allegation 2, the appellant indicated that while he agreed with the Chief s decision in the result, he still asked the Board to examine and comment on the Chief s reasoning. [10] During argument, the appellant also noted that allegation 6 likely could not proceed because the specific officer could not be identified, but again took issue with the Chief s rationale. [11] The appellant argued three main points before the Board: the Chief used the wrong threshold in determining whether there was sufficient evidence to send a matter to a hearing, that the investigation into the appellant s allegations was flawed; and that the standard of review to be used was that of correctness. ISSUES [12] The issues we must decide are as follows: DISCUSSION 1. Did the Chief use the wrong threshold in determining if sufficient evidence existed to require a disciplinary hearing? 2. Was the investigation into the appellant s allegations flawed such that it engages the civilian oversight mandate of the Board? Standard of Review [13] The standard of review to be used where the Board is reviewing the Chief s decision not to send an allegation or allegations for a disciplinary hearing is that of reasonableness. 1 [14] The appellant urges the Board to use a standard of correctness based upon the Chief applying the wrong test or threshold in determining whether a hearing should be held on the allegations. This error, the appellant argues, is a mistake in law and therefore subject to a standard of correctness on review. [15] The appellant relies on the Alberta Court of Appeal decision in Land, wherein the Court 1 Pelech v Law Enforcement Review Board, 2010 ABCA 400 at para 26.

5 Alberta Law Enforcement Review Board 2015 ABLERB 07 5 stated: However, where a decision of the Chief clearly reflects an extricable error of law or jurisdiction, the Board may be entitled to apply correctness at that point. 2 [16] The respondents and the Chief argued that the standard of review to be applied in this matter is reasonableness. The Chief argued that even if he had used the incorrect test and that it was a question of law, it still attracted a standard of reasonableness on review. The Chief referred the Board to the decision of the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v Alberta Teachers Association. 3 [17] In Alberta Teachers, complaints were lodged against the Alberta Teachers Association ( ATA ) with the Alberta Information and Privacy Commissioner ( the Commissioner ). One of the issues raised on appeal was whether the Commissioner could extend a deadline when the time for that deadline had passed. The Supreme Court indicated that where a tribunal was interpreting its own home statute, deference was due unless the issue fell within certain limited circumstances: Constitutional questions; Questions of law that are of central importance to the legal system as a whole and that are outside of the adjudicator s expertise; Questions regarding jurisdictional lines between two or more competing specialized tribunals; and True questions of jurisdiction or vires. 4 [18] The Board has determined that the appropriate standard of review in this case is that of reasonableness. The reasons are set out below. [19] The appellant further argued that the Board should engage its civilian oversight mandate due to the inadequate investigation conducted by the EPS into this matter. For reasons also set out below, the Board declines to do so. Chief s Application of Threshold when Screening [20] The appellant argues that the Chief used the wrong threshold when he screened the appellant s complaints. The appellant states that the Chief erred by stating that no conviction could result due to there being no independent evidence to corroborate the appellant s version of events. 2 Land v Law Enforcement Review Board, 2013 ABCA 435 at para Alberta (Information and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61 ( Alberta Teachers ). 4 Alberta Teachers, para 30.

6 Alberta Law Enforcement Review Board 2015 ABLERB 07 6 [21] The test to be applied by the Chief when screening complaints was set out in Land: Is there enough evidence before the Chief that, if believed, could lead a reasonable and properly instructed person to convict the police officer at a disciplinary hearing? 5 [22] The Court went on to say then when reviewing the evidence, it was appropriate for the Chief to engage in a limited weighing of the evidence as a whole in order to consider the permissible inferences that may be drawn from that evidence. 6 [23] The Alberta Court of Appeal delineated the screening function of the Chief when reviewing allegations to determine whether to send them on to a disciplinary hearing. The Court considered the issue in Cody as well stating that the Chief could decline to send a matter for a hearing where the evidence is so weak, contradictory, or incomplete that it is not in the public interest to have a hearing. 7 [24] The Court went on to say that the Chief could also decline to send a matter for a hearing where: There are other policy reasons why a prosecution is not in the public interest. There might be some unusual circumstances in which a hearing is not warranted. The factors that the chief might consider would likely overlap with those that are considered by Crown prosecutors when they decide not to proceed with charges. It would be difficult and unhelpful to try and make a list of them here. However, if the chief intends to rely on such policy considerations in not sending a matter to a hearing, it is imperative that they be set out clearly in the decision. 8 [25] The Court also noted this, however: It is not, however, the role of the chief to determine if the complaint has been proven or not proven, without holding the hearing contemplated by the Police Act The role of the chief is to screen complaints, and to withhold a hearing only where one of the two factors just noted arise. 9 [26] The two factors mentioned by the Court are weak, contradictory or incomplete evidence or policy reasons. 5 Land, supra, at paras 59 and Land, at para Calgary (Police Service) v Alberta (Law Enforcement Review Board), 2013 ABCA 124 at para 24 (commonly referred to as the Cody decision). 8 Cody, supra, at para Cody, supra, at para 24.

7 Alberta Law Enforcement Review Board 2015 ABLERB 07 7 [27] The lessons to be drawn then from the cases are: The chief must determine that there is sufficient evidence, that if believed, could lead a reasonable and properly instructed person to convict a police officer at a hearing. The chief may weigh evidence in a limited manner to determine what permissible inferences may be drawn from it. Part of the weighing is to determine if the evidence is weak, contradictory or incomplete. Even where sufficient evidence exists, the chief may still decide not to send the matter to a hearing for policy considerations if those considerations are clearly articulated in his decision. [28] It is clear that part of the screening function is to assess the amount of evidence ( sufficient, incomplete ) available to support the allegations against an officer. In so doing, considering if there is independent or corroborative evidence is part of that process. It also goes to a limited assessing, i.e., if the evidence is weak. [29] In applying this to the case at hand, the Chief was permitted to determine if there was sufficient evidence upon which to found a conviction. As part of that determination, assessing whether there was independent evidence would naturally flow as part of the process. That being said, if that were the sole criterion upon which the Chief refused to send the matter to hearing, that could be problematic. [30] However, this does not mean that the Chief misapprehended the law and thus triggered a standard of review of correctness. For that reason, the Board finds that the standard of review to be used in this matter is reasonableness. [31] With respect to the allegations that the Chief used wrong the threshold when determining whether or not to send the allegation to hearing, the Board finds that in each instance he used the appropriate threshold and denies the appellant s appeal in this regard. Inadequate Investigation [32] The appellant alleges that the investigation into his allegations by the EPS was inadequate on the ground that it was negligently performed, i.e., certain things that should have been done were not done, and that it was biased. [33] With respect to the first ground, the appellant argues that the EPS failed to interview respondent Chernyk or to ask him to address the allegation that he commented to EMS

8 Alberta Law Enforcement Review Board 2015 ABLERB 07 8 personnel that the appellant was feigning injuries, was a pain in the neck and was one of those characters. As a result, the appellant states, the investigation was incomplete. [34] The Board agrees that given the allegation, once the identity of the EPS member was determined, there should have been a demand for a statement or at least questions posed to the member. However, this does not render the investigation negligent or inadequate. When viewed as a whole, it is clear that the EPS took steps to interview all the key players with respect to the appellant s allegations and indeed took steps to identify respondent Chernyk and obtain the tape of the conversation he had with the EMS dispatch. While it might have been more thorough to have obtained a statement from him, in light of the allegation and the fact that the tape disclosed that he made the comments he did, it is not fatal to the investigation to not have obtained a statement or questioned him. In short, the comments were clearly made and any statement would not have added anything to the mix in terms of the adequacy, overall, of this aspect of the investigation. [35] Turning to the bias allegations, the appellant argues that the Professional Standards Branch ( PSB ) of the EPS and the Chief were biased against he and his mother due to the following: repeated findings of credibility against the two of them; failing to consider the substance of their evidence; the suggestion that the appellant was probably faking his injuries in the final PSB report; the suggestion that the appellant was on drugs when there was no evidence of that; the Chief relying too heavily upon the appellant s alleged misbehaviour; PSB determining that the appellant and his mother fed off each other during their PSB interview; and The Chief applying two against one reasoning. [36] The Chief argues that those who allege bias must prove it and the threshold is quite high. In support, he relies on the following cases: R v RDS; Bizon v Bizon & O Donnell; and Ontario v MacDonald. 10 [37] The test is that set out in the dissenting opinion written by Justice DeGrandpre in Committee for Justice and Liberty v National Energy Board: 11 : The apprehension of bias must be a reasonable one, held by reasonable and rightminded person, applying themselves to the question and obtaining thereon the required 10 [1997] SCJ No 84; 2014 ABCA 174 [Bizon]; [2009] OJ No [1978] 1 SCR 369 at pp

9 Alberta Law Enforcement Review Board 2015 ABLERB 07 9 information The test is what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. Would he think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly. The grounds for this apprehension must, however, be substantial and I refuse to accept the suggestion that the test be related to the very sensitive or scrupulous conscience. [38] In the Bizon case cited by the Chief, the Alberta Court of Appeal stated this: The challenger must present cogent and substantial evidence to justify the conclusion on a balance of probabilities that the judge was, in fact, biased or that reasonable, rightminded and properly informed person would conclude that the judge did not or could not decide the case impartially. 12 [39] Upon review of the allegations by the appellant, the Board concludes that they do not meet the high test required for the Board to conclude that the investigation or the Chief s decision was biased against him. Several of the allegations appear to be more properly characterized as disagreeing with the conclusions reached by the Chief as opposed to actual evidence of bias. One of the allegations appears to be unsupported by the evidence; the suggestion in the PSB final report that the appellant was faking his injuries. The Board went through the report in detail and could not find such a reference. While there are some arguably erroneous assumptions or comments (e.g. the appellant possibly being on drugs), the Board does not find that the evidence provided in support of the bias allegations meets the test for bias. Decision [40] The appellant also went through a number of the allegations and indicated why he thought each allegation was not dealt with in a reasonable manner by the Chief. The allegations are numbers 1, 3-9 and 12, though he conceded that the outcome in allegation 6 was likely reasonable given that the officer who made the comment could not be identified. [41] There were several general themes or complaints with respect to each of the allegations: The Chief used the wrong threshold in determining if the matter should be sent to a disciplinary hearing; The Chief improperly undertook a credibility analysis; and The Chief improperly stated that independent corroborating evidence was required 12 Bizon, para 62.

10 Alberta Law Enforcement Review Board 2015 ABLERB [42] These allegations have been dealt with above in the discussion surrounding the standard of review. However, there are a number of other points of appeal with respect to certain allegations that remain to be dealt with. Allegation 1 [43] The appellant alleged that the vehicle he was riding in was stopped initially because of heavy bandages that he had on his neck due to a previous injury. Respondent Ruecker states that in fact he stopped the vehicle because the apparent age of the driver did not match the age of the owner on the registration. The appellant argued that even if the respondent officer was telling the truth, his rationale for stopping the vehicle was still inappropriate and unlawful. [44] The respondent officers argue that the Traffic Safety Act permits officers to randomly stop vehicles and that in this instance, respondent Ruecker was well within his rights to stop the vehicle and ascertain whether the driver had permission or the right to use the vehicle. [45] In the within case, respondent Ruecker indicated that he had run a registration search on the pickup truck that the appellant was riding in and found that it was registered to a male who was much older than the age of the driver. As a result, he stopped the truck and asked to see the documents of the driver. [46] The Chief was not asked to address this point, however. The allegation in the original complaint centred solely upon whether the respondent officer was entitled to stop the vehicle due to the appellant s bandages. When this allegation was investigated, respondent Ruecker replied that he had stopped the vehicle due to the age disparity and did not even notice the bandages until the truck was stopped and he saw the appellant. [47] In R v Truong, 13 the Court was faced with a situation in which police had stopped a vehicle on the basis of a suspicion that the driver was a drug trafficker. The court acknowledged that the police had an ability to randomly stop a driver under the Traffic Safety Act but that the caselaw emphasized the connection between the random stop and safety of the use of vehicles. In Truong, the Court found that there was not a legitimate safety reason for stopping the vehicle and concluded that the random stop was not justified. [48] In this case the respondent officer stopped the vehicle after doing a registration check on his computer and ascertaining that the age of the driver did not match the age of the registered owner. Counsel for the officers argued that this check of the registration was a natural extension of the power provided under the Traffic Safety Act ABPC 181.

11 Alberta Law Enforcement Review Board 2015 ABLERB [49] It would have been preferable if more investigation had been done surrounding why respondent Ruecker did the initial search on the vehicle registration prior to pulling over the pickup to aid in determining whether the stop was lawful. Nevertheless, there is no evidence to suggest that the search was not done for a proper purpose or that the officer did not have the right to do so given the provisions of the Traffic Safety Act. Allegation 12 [50] The appellant alleged that an unknown officer made a comment to EMS dispatch to the effect that the appellant was faking his injuries. The Chief, in his decision, indicated that the comment made was more in the nature of a time filler and that there is no evidence that it was intended to influence the treatment provided by EMS or that it actually did so. [51] The appellant argues that the lack of any influence coming to pass is irrelevant. Rather, it was an inappropriate comment that should never have been made in the first place and that it is the fact that it was made that is in issue. [52] The respondent officers agree with the reasoning of the Chief and rely upon the fact that nothing occurred as a result of the comment. [53] The Board agrees with the appellant that the fact that the comments did not appear in the EMS dispatch, or to have had any effect on the treatment of the appellant, is irrelevant. If it had, that would go more towards any sentence. Rather, it is the act, the voicing of the comment, that is at issue and the Board agrees that it was inappropriate. That being said, the Board also concludes that it was reasonable for the Chief to find that it likely was made in passing, without any intent to deny the appellant medical treatment. While the comment was inappropriate and unprofessional, the Board cannot agree with the appellant that the decision of the Chief not to hold a disciplinary hearing was unreasonable in the circumstances. The Board would urge the Chief and the EPS to ensure that such comments are not made in the future.

12 Alberta Law Enforcement Review Board 2015 ABLERB CONCLUSION [54] For the reasons given above, the appeal is dismissed. Edmonton, Alberta May 1, 2015 Edward Lawson Presiding Member Brian Gifford Member Benjamin Ayorech Member For the appellant: T. Engel For the respondents: M. Jones For the Chief of Police: J. Taylor