Court of Appeal Decision of the Week

Court of Appeal Affirms Law Enforcement Review Board Decision

Case: Rogers v Edmonton (Police Service), 2016 ABCA 216 (CanLII); see also Petropoulos v Edmonton (Police Service), 2015 ABLERB 6 (CanLII)

Keywords: Police Misconduct; Partner Aiding and Abetting Police Misconduct; Alberta Law Enforcement Review Board; s. 5(2)(e)(vi) Police Service Regulation, AR 356/1990;

Synopsis:

Constables Redlick and Rogers go to Mr. Petropoulos’ house to arrest him on the basis of allegations he assaulted his elderly mother. Constable Redlick is upset by the nature of the allegations; particularly by what he sees as suggestions by Mr. Petropoulos that his mother is to blame. After arresting Mr. Petropoulos and bringing him to their squad car, Constable Redlick gets into the back of the squad car as opposed to the front seat. Constable Redlick then instructs his partner, Constable Rogers, to pull over.

Constable Rogers pulls the squad car over, driving into the parking lot of a high school in Edmonton. Constable Redlick tells Petropoulos to get out and escorts him around the corner of the building (out of Constable Rogers’ view).

“Once he and Petropoulos were out of sight, Redlick engaged Petropoulos in a very brief but physical altercation. Redlick then escorted Petropoulos back to the police car and Petropoulos was taken to the police station where he was booked and ultimately released.” (judgment below at para. 3, not in C.A.)

Petropoulos files a complaint against the two officers. Constable Redlick pleads guilty to a charge of discreditable conduct. Constable Rogers was charged with several disciplinary offences for aiding and abetting Constable Redlick. Constable Rogers denies any wrongdoing. He claims he thought Constable Redlick was simply escorting Petropoulos around the corner of the high school building to have a private chat. Constable Rogers’ position is he had no knowledge of any physical altercation between the two and was confident that his partner would never place him in jeopardy by doing something improper with Petropoulos.

At the disciplinary hearing, the Presiding Officer accepts Constable Redlick’s guilty plea; finds Constable Rogers guilty of discreditable conduct. Both Constable Redlick and Constable Rogers are sentenced to a reduction in seniority to “fourth-year constable” for a period of one year.

Petropoulos appeals the sentences to the Alberta Law Enforcement Review Board; submits dismissal is the appropriate penalty for Constable Redlick. With respect to Constable Rogers, Petropoulos asks he receive a similar penalty. Constable Rogers appeals both his conviction and penalty. The Alberta Law Enforcement Review Board dismisses all three appeals.

Constable Rogers next appeals to the Court of Appeal. The Court is satisfied the Law Enforcement Review Board is correct in finding Constable Rogers had actual knowledge of Constable Redlick’s intention to assault Petropoulos; the decision was reasonable.

Importance:

This decision provides a brief answer to interesting questions about police misconduct – namely what responsibility does a police officer have, if any, to prevent a fellow police officer’s misconduct? Simply put: to what extent to the police have to police themselves?

Rogers demonstrates that processes of police oversight and accountability currently exist in Canada. Moreover, the relationship between the Alberta Law Enforcement Review Board and the Courts produces unique legal issues.

First, the Court of Appeal found ordinary criminal law concepts are not necessarily transferrable or applicable to disciplinary proceedings under the Police Service Regulation, AR 356/1990. Rather, such proceedings are subject to the civil standard, described as follows: “Has the proponent of a fact in issue established that its existence is more likely than not?” (see para. 3)

The Court also found an officer may abet under s. 5(2)(e)(vi) of the Police Service Regulation with a blameworthy state of mind which is less than “actual knowledge” of the act that constitutes the central component of abetting under s. 5(2)(e)(vi). Note the language of the section:

“5(2)(e) ‘discreditable conduct’ consists of one or more of the following:

(vi) abetting in or knowingly being an accessory to a contravention of this section by another peace officer” [emphasis added]

Although the Court of Appeal declined to describe lesser degrees of moral culpability, its judgment suggests the high standard of “actual knowledge” is not required. By way of justification for its refusal to elaborate further, the Court of Appeal stated as follows: “The panel hearing an appeal taken with permission of a single judge of this Court always has the right to restate the issues it wishes to resolve. We have done so here.” (see para. 5)

Counsel for the Appellant: Robert Abells, Q.C. (Abells Regan LLP, Edmonton)

Counsel for the Respondent, Chief of Edmonton Police Service: Daniel Morrow and Renee Gagnon (Bennett Jones, Edmonton)

Counsel for the Respondent, George Petropoulos: Amanda Hart-Dowhun (Engel Law Office, Edmonton)

Counsel for the Respondent, Law Enforcement Review Board: Sean McDonough (Department of Justice and Solicitor General (AB), Edmonton)

Discuss on CanLii Connects

Posted: Wednesday, July 13, 2016