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Originally Posted by WhiteTiger
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Sorry, this will take a bit of a long post to address. If you do not want to take the time to read it, then post #1247 by Locke is a fairly decent summary.
This press release is a rather troubling attempt to deflect responsibility by inaccurately blaming 'the system' to make it appear as though the police have no options because of the law around police discipline in Alberta.
Being involved in the current Police Act reform process, this public relations campaign only adds to the concern that 'reforms' will ultimately be minor changes that are heavily slanted in favour of police officers / police services and will not actually put civilian members of the public's interests first.
I would say in my opinion this 'timely notification' is instead a desperate scramble to deal with the fact the video of the still-employed CPS officer has been viewed around the world now 12.6 million times on just one twitter post and has become the subject of intense criticism and comment by many NBA and NFL players, US journalists (not just TMZ, but even TMZ), Hollywood actors and political commentators of prominence such as George Conway.
First - none of this in any way takes away from the presumption of innocence of Cst. Alex Dunn and the need for the Crown to prove a crime beyond a reasonable doubt. But as many posters have pointed out on this site, that only applies to the criminal case he faces.
So let's look at the CPS attempt to 'help answer some questions'.
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Police officers have the same rights as everyone else, including being assumed innocent until proven guilty and the right to a fair trial. When criminal charges are laid, we must ensure our actions do not impact either of these rights. This includes pausing our internal investigation and disciplinary process.
Here is why. Alberta law only allows a police officer to be disciplined or fired for serious misconduct through an investigation and public hearing. These hearings operate like a court. Witnesses can be called, evidence is presented and a ruling is made by an independent presiding officer (not the Chief).
Holding a hearing like this before a criminal trial would introduce information into the public realm that could impact the court’s ability to hold a fair and unbiased trial.
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In the tweet accompanying this notice, the CPS was more explicit as to being required to wait for the criminal trial saying they "must wait until after the trial to consider any discipline."
That is not what the legislation says.
Section 47(2) and (3) of the Police Act (under the heading Conduct of Hearing) fully contemplates criminal investigation and charges can run in parallel to internal discipline hearings:
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(2) Notwithstanding that the actions of a police officer have been referred to the Minister of Justice and Solicitor General under section 45(2)(a) or 46(3)(a), if the person who referred the matter to the Minister of Justice and Solicitor General is of the opinion that those actions also constitute a contravention of the regulations governing the discipline or the performance of duty of police officers, the matter as it relates to that contravention shall be proceeded with under section 45(3) or 46(4), as the case may be, unless the Minister of Justice and Solicitor General otherwise directs.
(3) Notwithstanding section 45(3) or 46(4), where a matter that is referred to the Minister of Justice and Solicitor General under section 45(2)(a) or 46(3)(a) is also to be proceeded with under section 45(3) or 46(4), the hearing of the matter under section 45(3) or 46(4) may be deferred until the proceedings respecting the offence are concluded.
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So the default in the law is for the internal discipline to proceed unless the Minister says otherwise. And the law allows an option that the internal hearing MAY be deferred. Not MUST.
In order to bolster its incorrect claim, the CPS invokes that a police discipline hearing must be public.
This is blatantly untrue. I have defended a police officer in an internal discipline proceeding that was conducted 100% in private, and I have also successfully challenged a Chief of Police trying to close a hearing to the public for invalid reasons. The Police Service Regulation on this reads:
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16(1) Where a hearing or a portion of a hearing is to be conducted under Part 5 of the Act,
(a) in the case of a complaint referred to in section 45 of the Act, the chief of police shall direct that the hearing or a portion of it be conducted in public or private whichever he determines to be in the public interest, and
(b) in the case of a complaint referred to in section 46 of the Act, the person who is to preside over the hearing shall direct that the hearing or a portion of it be conducted in public or private whichever he determines to be in the public interest.
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So, where the public interest is served, the discipline hearing can be done in private. There is absolutely no need whatsoever for a disciplinary hearing run ahead of a criminal trial to introduce information to the public that could actually undermine the fairness of the trial.
And in most situations, that claim doesn't make any legitimate sense anyway. As an appellate lawyer, I can assure you that many times very serious criminal trials have to be set aside and run a second or even third time (more than three happens too but it is quite rare).
You know what is very often 'introduced into the public realm' prior to the re-trial? Well, the entirety of the exact same evidence that will be called in trial #2, PLUS reporting on the accused's conviction, PLUS details of how many years the offender was ordered to be in prison, PLUS detailed arguments before and opinions from the Court of Appeal about the significance of evidence and errors made in the first trial.
While we may need to take some steps to challenge jurors for cause (to make sure they are not prejudging the new trial based on old info in the public domain)
we regularly and routinely hold fair criminal re-trials on the exact same criminal charges with the exact same witnesses testifying over again.
One of the most infamous cases in Alberta touching this issue involved an RCMP officer charged with murder arguing unsuccessfully that his third trial would be an abuse of process:
https://www.theglobeandmail.com/news...ticle22733121/
But CPS says if they dealt with employee discipline first that would create an insurmountable risk to the fairness of a later criminal trial?
There may well be cases where it is appropriate to defer the internal discipline hearing until after the criminal trial. And an accused officer can apply for a deferral and try to make the case for it.
But the suggestion that the law or the 'current process' requires this in every case is wrong. So, if the CPS wanted to answer questions that the public has after seeing the video in the Cst. Alex Dunn case, then it ought to have explained why deferring the internal proceeding was in the public interest in that case. Not claim, 'the system made me do it'.
Now on to the scapegoating of the law as it relates to suspension from duty without pay. The CPS writes:
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Under Alberta’s Police Service Regulation, we can only relieve a member from duty without pay when “exceptional circumstances” exist and it must be confirmed by the Calgary Police Commission. But the law does not define what counts as an “exceptional circumstance.”
Some guidance is provided by limited case law set by previous court decisions and Law Enforcement Review Board appeals. We must weigh this guidance with the procedural fairness of revoking the livelihood of the member and their family for potentially years while awaiting a trial or hearing – a time during which they are considered innocent until proven guilty.
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While it is true the Police Service Regulation does not define exceptional circumstances, the 'limited case law' confirms what that phrase means is a Chief of Police has extremely broad latitude to decide when suspension without pay should be ordered. (Note the legislation also expressly provides for return of all missed pay in the event that the officer is cleared of the alleged misconduct).
What the Court of Queen's Bench said in 2014 on the topic was that a Chief's decision (and the upholding of that by the police commission) just has to be within the range of reasonable possible decisions based on the circumstances. The Court went on to characterize the factors that could justify such a decision as:
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the list of factors...includes misconduct that may reasonably damage the police service’s reputation or undermine internal accountability or discipline within the service if the officer is not relieved from duty without pay.
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https://www.canlii.org/en/ab/abqb/do...14abqb126.html
I can certainly imagine that any such decision by a Chief of Police is a difficult one, and as the CPS have said, it requires a balancing act. But, again, any Chief of Police can decide to send a different message to those in his or her command...and make a swift suspension without pay be a regular and realistic consequence for engaging in conduct that members of the public are voicing loud and clear is not acceptable and will no longer be tolerated.
If the decision of the Chief is unreasonable, then the Commission (and ultimately the Court) is there to act as a check and balance and they will not uphold the decision.
And once suspended without pay there is a very simple way to deal with the concern about the officer and their family being without that income: expeditiously run the damn hearing.
In fact, the timelines that the legislature intended are in the regulation as well:
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Time limits
7(1) A police officer shall not be charged with contravening section 5 at any time after 6 months from the day that a complaint is made in accordance with section 43 of the Act.
(2) Subject to section 47(2) and (3) of the Act, where a hearing is to be held under the Act, the hearing shall be commenced no later than 3 months from the day that a police officer is charged with contravening section 5.
(3) Where a hearing is commenced under the Act it shall, subject to section 47(1)(i) of the Act, be completed within a reasonable time and without undue delay.
(4) Notwithstanding that time limits are prescribed under this section, the commission may, if it is of the opinion that circumstances warrant it, extend any one or more of those time limits.
(5) The time limits set out in subsections (1) and (2) do not apply in respect of a matter where the Law Enforcement Review Board has ordered under section 20(2) of the Act that a hearing or rehearing of the matter be conducted.
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These timelines actually used to be even shorter. But as you can see above, the expectation is supposed to really be within 9 months from an accusation of misconduct, the hearing should be running and be completed without undue delay. (The fact that police commissions chronically grant extensions and what adequate resources for investigating police misconduct should actually look are lengthy topics on their own).
If the law is sparse on this issue one might ask if it is because it so rarely ever gets put to the test (because suspension without pay happens so rarely). That may well be a systemic problem, but it is not one that can fairly be blamed on the legislation or the courts.
And keep in mind one of the real consequences of unnecessarily deferring internal discipline to wait for criminal cases to be concluded (and not suspending without pay) is that the taxpayer gets to waste exorbitant amounts of money on a police officer that will ultimately be deemed impossible to be trusted to continue to be a police officer:
https://globalnews.ca/news/2509927/c...ving-incident/
So, perhaps instead of "Police Accountability Takes Time" the CPS should have issued a statement entitled something like "Time's up...Calgary Officers can no longer count on delays in being disciplined" with a byline - Current CPS Chief intends to use the legal tools already in place to put an end to deferred accountability of his officers.
Now that would make for an interesting and timely notification...
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