Court of Appeal Decision of the Week

Who Can Sit as a “Presiding Officer” at Police Act Hearings?

Case: Frei v Calgary (Police Service), 2018 ABCA 102 (CanLII)

Keywords: Presiding Officer; Police Act, RSA 2000, c. P-17; Police Service Regulation, AR 356/90

Synopsis:

Under the Police Act, RSA 2000, c. P-17, a “presiding officer” conducts hearings as they relate to contraventions of the Act and complaints about police officers. The issue in this brief, but significant, decision of the Alberta Court of Appeal is whether Ms. Shirley Jackson, Q.C., a one-time deputy judge of the Yukon Territorial Court, is entitled to sit as a presiding officer in Alberta.

Eligibility is established by a range of statutory and regulatory provisions. Section 61(1)(g.01) of the Act provides that the Lieutenant Governor in Council may make regulations about who may serve as a presiding officer at a hearing.

Section 13(1) of the Police Service Regulation, AR 356/90 provides as follows:

Any of the following persons may serve as the presiding officer at a hearing:

(a) subject to subsection (1.1), a currently serving or former police officer;

(b) a former member of the judiciary, including judges of the Court of Queen’s Bench and the Provincial Court.

Both the Chambers Judge and Court of Appeal agree the Regulation permits Ms. Jackson Q.C. to sit as a presiding officer.

Importance:

Prior to the introduction of Police Service Amendment Regulation, AR 44/2011, only senior police officers were qualified to sit as presiding officers. Eligibility has since been extended to include former members of the judiciary – but is that restricted just to Alberta’s judiciary? The Appellant argued that only former members of the Alberta’s judiciary are eligible to sit as presiding officers. (See para. 3).

The Court of Appeal disagreed, finding no such “limiting words” in the Regulation and noting, as per National Bank of Greece v Katsikonouris, 1990 CanLII 92 (SCC), [1990] 2 SCR 1029 at p. 1041, that the word “including” is to be interpreted as a term of extension. (See para. 3).

The Court of Appeal determined the intention of the Amendment Regulation was “obviously” to expand the pool of available presiding officers. Why? The Regulation was designed to enable participation by individuals outside the police community (especially in cases which “arguably” call for distance between the police and adjudicator). As such, the Court determined an unduly restrictive interpretation of the Regulation was inappropriate:

“…there is no reason why the Regulation would be limited to former Alberta judges. If that was the intention the Regulation would need to be amended.” (See para. 4)

In the result, Ms. Shirley Jackson, Q.C. (and, presumably, any “former member of the judiciary” as well) is eligible to preside over police conduct hearings in Alberta.

Counsel for the Appellant: J. Shymka

Counsel for the Respondent Chief of Police of the Calgary Police Service: M.F. Naber-Sykes, Q.C.

Respondent Shirley Jackson: in person (no appearance)

Counsel for the Respondent Minister of Justice and Solicitor General of Alberta: S.P. McDonough

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Posted: Wednesday, March 21, 2018