R. v. Perreault, 2010 ABQB 714

Court of Queen ’ s Bench of Alberta Citation: R. v. Perreault, 2010 ABQB 714 Date: 20101118 Docket: 071157713U1, 071157713U2 Registry: Edmonton Between: Her Majesty the Queen Crown (Respondent) - and - Michael Perreault Accused (Respondent) - and - Chief of Police, Edmonton Police Services Intervener (Applicant) - and - Constable R. Newell, Constable D. Corcoran, and Constable R. Ardill Interveners (Applicants) _______________________________________________________ Reasons for Judgment of the

Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ 1. Introduction......................................................................................................... Page: 4 2. Disclosure of disciplinary records of police officers................................ Page: 6 A. The R. v. Stinchcombe and R. v. O ’ Connor disclosure schemes Page: 6 B. R. v. McNeil - disclosure standards for police discipline and misconduct records.............................................................................. Page: 7 C. Development of the R. v.

McNeil police discipline and misconduct disclosure standard in Alberta............................................................ Page: 9 i. R. v. Polny, [2009] A.J. No. 1511 (QL) , 2009 CanLII 81890 (Alta. Q.B.) - April 23, 2009 ...................................................... Page: 9 ii. R. v. Campbell, 2009 ABPC 181 - June 22, 2009 ................. Page: 9 iii. R. v. Letourneau, 2009 ABPC 222 , 471 A.R. 198 - July 31, 2009 ................................................................................ Page: 9 iv R. v. Michaud, 0708437443P1, Prov. Ct. - October 9, 2009 Page: 11 v. R. v.

Sivachova, 060254703P1, Prov. Ct. - November 30, 2009 .................................................................. Page: 11 vi. R. v. Gangl, 071568778P1, Prov. Ct. - December 23, 2009 Page: 11 vii. R. v. Collins, 2010 ABPC 19 - January 19, 2010 ................ Page: 11 viii. R. v. Steele, 2010 ABQB 39 - January 19, 2010 ................. Page: 12 ix. R. v. Auger, 2010 ABPC 196 - May 31, 2010 ....................... Page: 13 x. R. v. Yip, 2010 ABPC 292 - Sept. 7, 2010 ............................. Page: 13 xi. Appellate court commentary .................................................. Page: 14 D. R. v.

Perreault , 2010 ABPC 104 - May 10, 2010............................. Page: 14 i. Official warnings ....................................................................... Page: 15 ii. Expunged records of police discipline and misconduct .. Page: 16 3. Scope of the certiorari review process, standard of review and other settled issues ................................................................................................... Page: 17 4. Positions of the Parties.................................................................................. Page: 18 A.

The Chief of Police (Applicant and Intervener)............................. Page: 18 B. The Police Officers (Applicants and Interveners)........................ Page: 19 C. The Crown (Respondent).................................................................. Page: 20

D. Perreault (Respondent)...................................................................... Page: 21 5. Analysis.............................................................................................................. Page: 21 A. Official warnings................................................................................... Page: 22 i. Alleged institutional dysfunction in police disciplinary procedures ................................................................................. Page: 22 ii. Official warnings as non-serious misconduct ................... Page: 22 iii. R. v.

Melvin - serious misconduct is contextual ............... Page: 24 iv. Repeated minor misconduct may represent serious misconduct ................................................................................. Page: 25 v. Provincial authority intruding into federal criminal jurisdiction .................................................................................. Page: 26 vi. Official warnings - conclusion ............................................... Page: 27 B.

Records of misconduct removed from police records under s. 22 of the PSR .............................................................................................. Page: 27 i. Expunged records as analogous to a pardon ................... Page: 28 ii. PSR , s. 22 only prohibits use of expunged records in actions against a police officer .............................................. Page: 29 iii. Provincial mechanisms to remove police discipline records intrude on the federal criminal authority ............................. Page: 29 iv.

Removing “ serious ” misconduct from Stinchcombe disclosure is wrong .................................................................. Page: 30 v. Expunged police records - conclusion ................................ Page: 30 C. Judicial comity, and the principle of stare decisis ....................... Page: 30 6. Relief granted.................................................................................................... Page: 33 1.

Introduction [ 1 ] Michael Perreault (“Perreault”), has been charged but not yet tried for assault of a police officer, obstruction of a police officer, and possession of stolen property. [ 2 ] This decision reviews whether certain information that relates to three officers of the Edmonton Police Service (“the EPS”) namely Constables R. Newell, D. Corcoran, and R. Ardill (the “Police Officers”), should be provided to the Crown as part of the mandatory police disclosure. [ 3 ] On January 28, 2009, counsel for Perreault requested that the Crown disclose information relating to the Police Officers, including:

1. any conviction or finding of guilt under the Criminal Code , R.S.C. 1985, c. C-46 and/or Controlled Drugs and Substances Act , S.C. 1996, c. 19 which had not been pardoned, 2. any pending charges under the Criminal Code and/or Controlled Drugs and Substances Act , 3. any conviction or finding of guilt under any other federal or provincial legislation, 4. any finding of guilt for misconduct under the Police Act , R.S.A. 2000, c. P-17 (the “ Police Act ”) and/or Royal Canadian Mounted Police Act , R.S.C. 1985, c. R-10, 5. any current charge of misconduct under the Police Act , R.S.A. 2000, c.

P-17 and/or Royal Canadian Mounted Police Act , R.S.C. 1985, c. R-10 for which a hearing has been directed, and 6. any current complaint of misconduct relating to allegations of dishonesty, excessive force, or abuse of authority: a. which is still under investigation, b. which was dismissed after a public hearing, or c. where the complaint was dismissed or discontinued due to: i. loss of jurisdiction due to officer retirement or relocation, ii. loss of jurisdiction, such as failure to meet time limits under the Police Service Regulation , Alta.

Reg. 356/1990 (the “ PSR ”) time limits, iii. the complaint being made outside the limitations period, iv. biassed or inadequate investigations, v. application of the incorrect legal threshold for laying charges under the Police Act or misapplication of the correct legal threshold, vi. “truncating” of the complaint by refraining from investigating all officers implicated in a complaint, vii. missing witnesses or complainants, viii. complainants discontinuing their complaint, dying, or becoming disabled, ix. informal resolution, x. a complaint not being in writing, and xi. refusal of police witnesses or subject officers to provide statements or be interviewed. (the “Request”). [ 4 ] In response the Chief of Police EPS (the “Chief”) provided a disclosure package to the Crown which included all information sought in the first three items of the Request.

The package also included records of any EPS Professional Standards Branch convictions under the Police Act and PSR except where those convictions had been removed from an officer’s discipline record following the procedure in s. 22 of the PSR , or disposed of under s. 45(4) of the PSR . The Chief and Crown refused to provide other requested materials, and have said from the outset that no obligation exists to disclose those materials.

[ 5 ] This dispute on disclosure of police records was the subject of a hearing before His Honour Provincial Court Judge V. Myers (“Judge Myers”), and his decision of May 10, 2010 (the “Decision”) is reported as R. v. Perreault , 2010 ABPC 104 . Judge Myers concluded the Crown had a further obligation pursuant to R. v.

Stinchcombe , 1991 CanLII 45 (SCC) , [1991] 3 S.C.R. 326, 130 N.R. 277 to disclose additional materials and ordered the Crown and EPS provide information that detailed: 1. all official warnings issued by a chief of police under the Police Act , s. 45(4), and 2. any records of police discipline which were removed from an officer’s discipline record under the procedure provided by s. 22 of the PSR . [ 6 ] The Applicants/Interveners have applied for orders in the nature of certiorari to quash those parts of the Decision dealing with disclosure of official warnings and expunged discipline records.

These parties also seek a declaration that the official warnings and expunged discipline records are “third party records” which are only producible if Perreault can demonstrate that such information is likely relevant, i.e. in accordance with the procedure established by the Supreme Court of Canada in R. v. O’Connor , 1995 CanLII 51 (SCC) , [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235. [ 7 ] The Applicants/Interveners and Respondents agree that the Chief and the Police Officers may intervene in the present applications as third parties affected by the Decision. 2.

Disclosure of disciplinary records of police officers A. The R. v. Stinchcombe and R. v. O’Connor disclosure schemes [ 8 ] Canadian jurisprudence identifies two different general mechanisms by which an accused person may obtain information. In R. v. Stinchcombe the Supreme Court of Canada recognized that “... there is a general duty on the part of the Crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it.” ( R. v.

C. (M.H.) (1988), 1988 CanLII 3283 (BC CA) , 46 C.C.C. (3d) 142 at p. 155 (B.C.C.A.), cited with approval in R. v. Stinchcombe , at 338-39). The Crown’s required disclosure includes all “relevant information” (p. 343): ... all relevant information must be disclosed subject to the reviewable discretion of the Crown. The material must include not only that which the Crown intends to introduce into evidence but also that which it does not.

No distinction should be made between inculpatory and exculpatory evidence. [ 9 ] This “ Stinchcombe ” disclosure permits the Crown to withhold only relatively limited categories of information, such as legally privileged communications and information that would identify confidential informers ( R. v. Stinchcombe , at para. 20 ). The Crown is obliged to err on the side of disclosure. [ 10 ] A different procedure applies where an accused person seeks to obtain information held by a third party to a criminal proceeding.

Canadian courts have a very broad authority to order production of documentation ( Canada Evidence Act , R.S.C. 1985, c. C-5, s. 46(1)), and the seminal case of R. v. O’Connor sets the procedure for a defendant to seek records held by third parties. That case makes very clear that presumptively the defence has a right to call any evidence it seeks (at para. 18, citing R. v. Seaboyer , 1991 CanLII 76 (SCC) , [1991] 2 S.C.R. 577 at p. 611, 83 D.L.R. (4th) 193): Canadian courts ... have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a

Canadian courts ... have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. [ 11 ] More recently in R. v.

Shearing , 2002 SCC 58 , [2002] 3 S.C.R. 33, Binnie J. reaffirmed that in an O’Connor application the ultimate consideration is whether information held by third parties is necessary for the defence: 132 Moreover, even in terms of production of third party documents, I do not, with respect, agree that “Mills has shifted the balance away from the primary emphasis on the rights of the accused” (para. 93 (emphasis added)) because Mills itself affirms the primacy – in the last resort – of the requirement of a fair trial to avoid the wrongful conviction of the innocent .

Mills states in para. 94 that where the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent . [Emphasis added.] B. R. v. McNeil - disclosure standards for police discipline and misconduct records [ 12 ] Records of police officer discipline and misconduct arguably could require either an O’Connor application or be part of the required Stinchcombe disclosure and historically courts have been inconsistent on which mechanism was appropriate for specific kinds of information.

This ambiguity was addressed in the recent Supreme Court of Canada decision of R. v. McNeil , 2009 SCC 3 , [2009] 1 S.C.R. 66. In R. v. McNeil Charron J. explained that the pool of “Crown” information that may be subject to the Stinchcombe disclosure procedure is limited to the information gathered by the crown prosecutors (para. 22). The “Crown” is not an amalgam of all state entities. .. the [Crown and the police] are unquestionably separate and independent entities, both in fact and in law.

Hence, production of criminal investigation files involving third parties, and that of police disciplinary records, usually falls to be determined in the context of an O'Connor application. This is unsurprising because information about third party accused or police misconduct is not likely to make its way into the Crown's Stinchcombe disclosure package unless such information is in some way related to the accused's case. [para. 24] [ 13 ] While separate, both the Crown and police do have interlocking roles in identification and disclosure of potentially relevant police officer misconduct.

The Crown has a duty to inquire if this kind of information may exist (paras. 49-51), while police agencies have a complementary obligation to identify and report to the Crown disciplinary and misconduct records that may be relevant (paras. 52-60).

Justice Charron at para. 53 makes clear that the police disclosure obligation does not always include the complete record of involved police officers: Obviously, the accused has no right to automatic disclosure of every aspect of a police officer's employment history, or to police disciplinary matters with no realistic bearing on the case against him or her. [ 14 ] Certain kinds of police misconduct and discipline records should always be reported to the Crown (para. 54), particularly those that relate to an accused person.

Justice Charron concludes at paras. 57-58 that certain categories of police officer misconduct and discipline form a useful starting point for the range of material that should be provided to the Crown by police agencies: a. Any conviction or finding of guil[t] under the Canadian Criminal Code or under the Controlled Drugs and Substances Act [for which a pardon has not been granted]. b. Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act .

c. Any conviction or finding of guilt under any other federal or provincial statute. d. Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act. e. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued. [ 15 ] Those five categories are commonly referred to as the “Ferguson Five”, named after Justice George Ferguson who had identified them in a report prepared for the Toronto Police Service: R. v.

McNeil , at paras. 55, 57 . [ 16 ] Justice Charron concluded disclosure of other kinds of police records should usually be addressed under the O’Connor regime. C. Development of the R. v. McNeil police discipline and misconduct disclosure standard in Alberta [ 17 ] The methodology provided for in R. v. McNeil has been applied in a number of Alberta cases. I review the decisions in chronological order, as both their sequence and timing are significant for my later comments on the evolution of the judicial application and refinement of the R. v. McNeil rules, and also on the issue of judicial comity. i. R. v.

Polny , [2009] A.J. No. 1511 (QL) , 2009 CanLII 81890 (Alta. Q.B.) - April 23, 2009 [ 18 ] R. v. Polny is an oral decision of Nielsen J. and was the first Alberta judgment to apply R. v. McNeil in relation to disclosure of police discipline and misconduct records. He concluded that police agencies had no obligation to disclose official warnings to the Crown, as by definition these kinds of discipline records are not serious misconduct (para. 39). Records of police officer misconduct that have been expunged per s. 22 of the PSR procedure are also not subject to Stinchcombe disclosure.

Nielsen J. found that removal of these incidents from a police officer’s record was analogous to the pardoning of a criminal offense (paras. 51-53). ii. R. v. Campbell, 2009 ABPC 181 - June 22, 2009 [ 19 ] In this decision, P.C.J. Redman concluded that any complaints that relate to police conduct which have been dismissed with or without a hearing are not subjects for mandatory disclosure (para. 24). iii. R. v. Letourneau, 2009 ABPC 222 , 471 A.R. 198 - July 31, 2009 [ 20 ] This judgment of P.C.J.

Allen provides a detailed, systematic, and principled review of police and Crown disclosure obligations for records on police misconduct. This case is commonly identified in subsequent Alberta decisions as a source for the appropriate principles during review of an application for Stinchcombe disclosure of police misconduct and discipline records. The accused in R. v. Letourneau sought further disclosure of the same information categories listed in the Request ( R. v. Letourneau , at paras. 2-3). Allen P.C.J. reviewed the elements of R. v.

McNeil relating to Stinchcombe disclosure, and concluded that Charron J. had stressed that the accused does not have an automatic and comprehensive right to disclosure of a police officer’s employment history. Stinchcombe disclosure is required only where a disciplinary record is relevant to a particular accused (paras. 38-40).

[ 21 ] The “Ferguson Five” represent the minimum that a police agency should disclose to the Crown (paras. 47-49). P.C.J. Allen also concluded that any information accumulated by police internal investigations of the events that involve the accused should be disclosed (paras. 50-59), which follows a pre- McNeil rule from R. v. R.L.F. , 2003 ABPC 196 , 350 A.R. 310. [ 22 ] P.C.J.

Allen reviewed operation of the collateral fact evidence rule and its role in excluding irrelevant evidence (paras. 73-88), along with Canadian jurisprudence that a prior history of bad conduct such as violence may be relevant and admissible (paras. 89-95). That said, he concluded these rules, while potentially helpful, did not determine the scope of police and Crown disclosure, as admissibility is not the test for disclosure. The common-law Stinchcombe obligation to disclose relevant evidence to the accused is broader and not restricted by whether evidence is admissible or not (paras. 99-102). [ 23 ] P.C.J.

Allen noted that certain of the additional kinds of Stinchcombe disclosure sought by the accused were for disclosure of allegations of misconduct, rather than findings of misconduct (para. 111). Two of the “Ferguson Five” categories also are allegations: 112 Charron J. recognized certain exceptions to her general rule concerning findings of serious misconduct; these exceptions are contained in the Ferguson Five. Some of the recommendations contained in the list are not findings of serious misconduct.

Finding of guilt under a provincial or federal act may or may not be a finding of serious misconduct depending on the circumstances. Two of the Ferguson Five relate to allegations as opposed to findings. These pertained to "outstanding charges under the Criminal Code or Controlled Drugs and Substances Act [for which a pardon has not been granted]," and "any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued. " [Emphasis added.] [ 24 ] P.C.J.

Allen concluded that Justice Charron’s choice not to require Stinchcombe disclosure for other kinds of alleged misconduct indicates these materials do not necessarily have to be disclosed (para. 114-115). Instead, allegations of police officer misconduct warrant disclosure once there has been an investigation of the allegation (para. 116), and a conclusion that there is reasonable and probable grounds to believe the alleged offense had occurred (para. 117). This process would “weed out” spurious allegations (para. 121).

Judge Allen noted that his reasoning presumed that the police discipline system was not generally corrupt (para. 121). [ 25 ] With this theoretical foundation, P.C.J. Allen turned to the specific kinds of information for which the accused had sought Stinchcombe disclosure. Simple complaints should not be disclosed, as those are not more than untested allegations (para. 131). An official warning to a police officer need not be disclosed as warnings, by their very character, cannot represent serious misconduct (para. 132).

Complaints that were dismissed or abandoned are analogous to criminal charges that have been withdrawn (para. 133); Judge Allen adopted the analysis in R. v. Campbell on the former scenario (para. 134). [ 26 ] Civil complaints are public documents and are not analogous to investigations of police misconduct (para. 135). The court adopted the reasoning of Nielsen J. in R. v. Polny that there was no obligation on a police agency and Crown to disclose expunged records of police officer misconduct and discipline (paras. 136-151). iv R. v. Michaud, 0708437443P1, Prov.

Ct. - October 9, 2009 [ 27 ] In this case disclosure of police discipline records that fall outside of the Ferguson Five was rejected by P.C.J. Creagh, though the exact scope of the requested disclosure is not apparent from her oral decision of October 9, 2009. Creagh P.C.J. adopted the reasoning in R v. Letourneau . and concluded that various examples of potential dysfunction in police disciplinary proceedings were not sufficient reason to condemn the system as a whole. Subsequent to this decision Creagh P.C.J. heard and rejected an O’Connor application for these items on April 28, 2010. See: R. v.

Michaud , 2010 ABPC 147 . v. R. v. Sivachova, 060254703P1, Prov. Ct. - November 30, 2009 [ 28 ] P.C.J. Malin received and rejected an application for Stinchcombe disclosure which apparently duplicated the one reviewed in R. v. Letourneau . Judge Malin adopted the reasoning of P.C.J. Allen in that case. He rejected an argument that allegedly systematic defects in EPS disciplinary procedures warranted increased scrutiny of police discipline records that fell outside the Ferguson Five

categories. vi. R. v. Gangl, 071568778P1, Prov. Ct. - December 23, 2009 [ 29 ] P.C.J. Matchett adopted the approach in R. v. Polny and R. v. Letourneau , and rejected an application for Stinchcombe disclosure of alleged instances of police misconduct including alleged misconduct which either had not led to a hearing or was dismissed after a hearing. The applicant also sought disclosure on incidents where injuries were caused by a particular police dog. vii. R. v. Collins , 2010 ABPC 19 - January 19, 2010 [ 30 ] In R. v. Collins , 2010 ABPC 19 , the accused sought an order from P.C.J.

Rosborough for Stinchcombe disclosure of any prior complaints that a sheriff had abused his authority, engaged deceitful or unprofessional conduct, and any related civil claims. Materials were provided and the Crown refused to disclose two items:

a) a letter of reprimand that the Crown concluded was not evidence of serious misconduct (para. 17), and

b) a complaint against the sheriff which had been rejected at both an initial hearing and on appeal (para. 18). [ 31 ] P.C.J. Rosborough adopted the reasoning in R. v. Polny , R. v. Campbell , and R. v. Letourneau (para. 73), and confirmed the Crown was not obliged to disclose the complaint to the defence as a Stinchcombe disclosure.

A complaint which had been investigated and then rejected was nothing more than an allegation (para. 75); Judge Rosborough rejected arguments that police disciplinary procedures are generally flawed or biased (para. 80). [ 32 ] However, he held that the previous identified abuse of authority by the sheriff was properly subject to Stinchcombe disclosure (para. 86 ). [ 33 ] Judge Rosborough made some general observations on factors that are relevant when conducting Stinchcombe disclosure of police records.

Where more serious offenses are alleged by the Crown, that warrants more exhaustive inquiry into the histories of involved police officers (para. 84). Another general consideration is efficiency; disclosure may not be appropriate where it results in administrative stress (para. 83). [ 34 ] As in R. v. Polny and R. v. Letourneau , P.C.J. Rosborough concluded civil lawsuits are public documents and it is up to the accused to find any that are relevant. Further, he observed that public tort lawsuits are not analogous to the Ferguson Five categories of misconduct identified in R. v. McNeil (paras. 92-93 ). viii.

R. v. Steele, 2010 ABQB 39 - January 19, 2010 [ 35 ] A second decision released on January 19, 2010 R. v. Steele , 2010 ABQB 93 , rejected another request to order Stinchcombe disclosure for the same kinds of information. Macklin J. adopted the reasoning of Nielsen J. in R. v. Polny and concluded official warnings do not require Stinchcombe disclosure as warnings do not represent serious misconduct (para. 47). Similarly, expunged police misconduct and discipline records are analogous to pardons (para. 52).

Justice Macklin comments on the proper approach to allegations of police misconduct, and concludes that where an allegation is dismissed or did not lead to a hearing then Stinchcombe disclosure is not required. That approach balances police officer privacy interests and avoids excessive Crown resource commitment (paras. 56, 62).

[55] … The Court recognized that requiring disclosure of mere allegations, with no assurance that they are well founded, would invariably derail trials . Given the nature of police work and the frequent occurrence of complaints against police officers, courts would inevitably be distracted by matters irrelevant to the case before them. The result would be further prolonging of trials.

Such routine disclosure would prevent efficient, expeditious and effective determination of criminal matters while, at the same time, it would often have little or no impact on the fairness of the trial for the accused . [Emphasis added.] [ 36 ] Again, it is stated that civil lawsuits are not police officer disciplinary matters and are part of the public record (paras. 68-70). This decision does not seem to involve allegations by the accused that police disciplinary proceedings were systemically flawed and/or biased. ix. R. v. Auger , 2010 ABPC 196 - May 31, 2010 [ 37 ] R. v.

Auger is the first reported case that comments on the R. v. Perreault decision. The accused argued Stinchcombe disclosure of all alleged police misconduct was required due to the flaws in the police disciplinary processes (para. 22).

Counsel for the accused identified two instances of deficient EPS internal investigation (para. 28) and produced records of complaints that did not result in a PSR hearing (para. 29). [ 38 ] Judge Creagh at para. 31 rejects the argument that such isolated instances indicate systematic dysfunction in EPS disciplinary processes: There is no factual basis on which it is possible to conclude that the opening premise is correct.

Reasoning to a conclusion from an anecdotal basis is unacceptable in this case: it would be completely improper to draw the conclusion that because two cases in the system have received negative comment, the entire system is fatally flawed . One could say that it is analogous to concluding that because the Court of Appeal or the Supreme Court of Canada overturn criminal verdicts or acquittals where they find errors in a trial, the entire system is flawed. [Emphasis added.] [ 39 ] As discussed in R. v.

Letourneau , only allegations which have undergone preliminary review warrant Stinchcombe disclosure (paras. 32-34 ). Following R. v. Letourneau and R. v. Steele , expunged disciplinary records of police misconduct are equivalent to pardoned criminal offenses (paras. 42-44). Judge Creagh specifically rejects the reasoning in R. v. Perreault . x. R. v. Yip , 2010 ABPC 292 - Sept. 7, 2010 [ 40 ] In R. v. Yip , 2010 ABPC 292 P.C.J.

Fraser concluded that Stinchcombe disclosure was required for a statement obtained during an internal police investigation of an officer who had allegedly used excessive force with the accused persons. This decision does not consider the kinds of disclosure sought in the present case by the accused. xi. Appellate court commentary [ 41 ] The only Alberta appellate court reference to Stinchcombe disclosure of police discipline and misconduct records is found in Edwards v.

Alberta (Law Enforcement Review Board) , 2010 ABCA 77 at para. 12 , 477 A.R. 247, where the Court of Appeal declined to comment on the appropriate treatment of expunged records of police misconduct. Other provincial courts of appeal do not appear to have addressed the specific issues raised in the present certiorari application.

D. R. v. Perreault , 2010 ABPC 104 - May 10, 2010 [ 42 ] In this decision Judge Myers addressed five categories of documentation that relate to police discipline and misconduct: 1. official warnings (paras. 17-23), 2. expunged records of police discipline and misconduct (paras. 24-33), 3. allegations of police misconduct that were dismissed (paras. 34-36), 4. allegations of misconduct where no notice of hearing was issued (paras. 37-38), and 5. civil lawsuits (paras. 39-40). [ 43 ] The main case authority cited by Judge Myers is R. v. Steele , which also references R. v. Polny and R .v. Letourneau .

Judge Myers agrees with the reasoning of Macklin J. in R. v. Steele that the last three categories are not subject to mandatory Stinchcombe disclosure, but takes a different approach to official warnings and expunged records of police misconduct and discipline. [ 44 ] In respect to those aspects of the Decision I will in certain instances comment on Judge Myer’s reasoning during this review of his analysis of Stinchcombe disclosure of official warnings and expunged police misconduct and discipline records. i.

Official warnings [ 45 ] Judge Myers concluded that official warnings issued by a chief of police under s. 45(4) of Police Act may be subject to mandatory Stinchcombe disclosure, and ordered disclosure of all official warnings issued to police officers involved with Perreault (para. 20 ). [ 46 ] Section 45(4) of Alberta’s Police Act states that an official warning may only be issued where “... the chief of police is of the opinion that the contravention of the regulations governing the discipline or the performance of duty of police officers is not of a serious nature ...” [emphasis added].

Judge Myers noted this provision was specifically cited in R. v. Polny , R. v. Letourneau , and R. v. Steele as the basis for why Stinchcombe disclosure was not required for these records. Those cases say that by definition official warnings are not the kind of “serious misconduct by police officers” identified by Charron J. in R. v.

McNeil , at para. 15 . [ 47 ] Judge Myers does not seem to dispute that only “serious misconduct” qualifies for mandatory Stinchcombe disclosure, but instead concludes on the basis of anecdotal examples of Calgary Police Service disciplinary records that the Chief of Police improperly applies to s. 45(4) of the Police Act . 19 With great respect, this Court disagrees. If followed, the Court would be abandoning its role as the arbitrator of what is serious and what is not serious. One of the examples provided by the Applicant is a case in point.

In Tab 13 of the applicant's materials filed October 15, 2009, the Applicant reproduces excerpts from the Calgary Police Service Disciplinary Table. On file #99-931 Official Warnings were

given to two members. Member #1 "orchestrated the improper destruction of a completed violation ticket in exchange for a bottle of liquor". Member #2 "accepted the bottle of liquor". Both were given official warnings. Clearly, to be given official warnings, the Chief of Police must have opined these contraventions were "not of a serious nature" to issue such a warning under s. 45(4) of the Police Act . 20 At first blush, this Court does not agree with the Chief of Police's opinion.

During the same first blush this conduct seems to fit the definition of s. 120 of the Criminal Code , which makes it a strictly indictable offence with liability of imprisonment up to 14 years for a police officer to corruptly accept valuable consideration to protect from detection or punishment from a person who has committed an offence. This

section is found in the Canadian Criminal Code under the

section entitled "Corruption and Disobedience". Parliament seems to treat this conduct as somewhat serious. So does this Court. This Court agrees with the analysis of Mr. Justice Coady in R. v. Melvin and orders the Crown to seek from the Chief of Police copies of all official warnings of all the affected officers included in the Perreault investigation along with a brief

summary of the facts supporting the official warning. [Emphasis added.] [ 48 ] Judge Myers does not comment on the scheme provided by Alberta legislation to scrutinize how police agencies monitor and discipline their officers.

Oversight of police disciplinary proceedings has been allocated by statute to the Law Enforcement Review Board ( Police Act , ss. 9-20.1), with a subsequent right of appeal to the Alberta Court of Appeal on questions of law ( Police Act , s. 18). [ 49 ] I note that while Judge Myers prefaces this analysis with a statement invoking the Court’s “... role as the arbitrator of what is serious and what is not serious”, that failure to exercise jurisdiction (if such a jurisdiction exists) is clearly not the basis on which the hearing judge ordered disclosure.

Instead, the order to disclose official warnings flows from a perception that the Calgary Chief of Police cannot be trusted to issue official warnings only where “the contravention of the regulations governing the discipline or the performance of duty of a police officer is not of a serious nature.” ( Police Act , s. 45(4)). [ 50 ] I also observe that eventhough Judge Myers cites R. v.

Melvin , 2009 NSSC 249 , 281 N.S.R. (2d) 42 with approval, the reasoning in that decision had two different bases, neither of which supports the proposition that police agencies cannot properly evaluate the seriousness of officer misconduct. Justice Coady concluded that certain officer misconduct which was the subject of internal discipline and that had been disclosed to the Crown was, in itself, serious (paras. 60-61). Coady J. also concluded that certain kinds of minor career transgressions may have a disproportionate relevance at trial, for example in relation to the credibility of a police officer ( R. v.

Melvin , paras. 58-59 ). Neither ground appears to be the basis on which Judge Myer’s decided to order disclosure of official warnings. ii. Expunged records of police discipline and misconduct [ 51 ] Judge Myers concluded that any records of police discipline which were removed from an officer’s discipline record following the s. 22 PSR procedure were subject to mandatory Stinchcombe disclosure, and in drawing that conclusion expressly rejected the R. v. Letourneau and R. v. Steele reasoning on that issue. [ 52 ]

Section 22 provides that after a certain period of good conduct (five years for police misconduct, three years for official warnings), records of police officer misconduct shall be expunged from the police officer’s disciplinary record: 22 When, and only when, (

a) a period of 5 years has elapsed from the day that punishment is imposed on a police officer for a contravention of

section 5, or (

b) a period of 3 years has elapsed from the day that an action is taken in respect of a police officer under section 19(1), if during that time no other entries concerning a contravention of this Regulation have been made on the police officer’s record of discipline, any record of the punishment, the contravention or the action taken shall

(

c) be removed from the police officer’s record of discipline and destroyed, and (

d) not be used or referred to in any future proceedings respecting that police officer. [ 53 ] While R. v. Letourneau and R. v. Steele concluded that the s. 22 procedure was analogous to the pardon of a criminal offense, Judge Myers took a different approach. First, he indicates at paras. 26 and 29 that the R. v. McNeil decision must have addressed analogous Ontario legislation, specifically the Police Services Act , R.S.O. 1990, c. P.15, and that he is bound on that basis. [ 54 ] Since s. 22(

d) of the PSR only prohibits reference to expunged records in “any future proceeding respecting that police officer ” [emphasis added] Judge Myers concluded proceedings that relate to other persons , such as the accused, may reference the expunged materials: R. v. Perreault , at para. 28 . Also, while procedures exist to prohibit disclosure of pardoned criminal offenses, s. 22 of the PSR procedure does not expressly relate to disclosure (para. 30). I note that s. 22(

c) requires the discipline records be destroyed , which implicitly prohibits disclosure after that point. [ 55 ] Judge Myers also distinguishes the expunged records and pardoned criminal offenses on the basis of their different moral implications, noting that a pardon means that legally a person never committed an offense ( Criminal Code , s. 748(3)) and that a pardoned conviction “... should no longer reflect adversely on the applicant’s character” ( Criminal Records Act , R.S.C. 1985, c-47, s. 5(a)(ii)). He concludes that s. 22 of the PSR procedure has no equivalent moral component (para. 29).

Furthermore, unlike the automatic procedure in s. 22 of the PSR , an application for a pardon requires a fee and is discretionary rather than automatic (para. 31). [ 56 ] On this basis Judge Myers ordered all police violations disclosed, including those expunged under s. 22 of the PSR . 3.

Scope of the certiorari review process, standard of review and other settled issues [ 57 ] As noted above, the Respondents do not dispute that the Applicants have third-party standing as interveners in the present application given their relationship to and control of the information subject to the Decision. [ 58 ] The parties also agree that a third-party challenge to an interlocutory provincial court order to produce records is available via the enlarged remedy of certiorari : L.L.A. v. A.B. , 1995 CanLII 52 (SCC) , [1995] 4 S.C.R. 536, 130 D.L.R. (4th) 422; R. v.

Scurr , 2008 ABQB 127 , 441 A.R. 203. [ 59 ] Further, at the oral hearing of these applications all participants agreed that the question before this Court is one of law, and as such the Decision is subject to review on the standard of correctness: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235; Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190. [ 60 ] Another point of consensus was that the amount of time and resources required to identify and produce records that may fall within one or both of the disputed categories is irrelevant to the existence of a Stinchcombe disclosure obligation.

Consequentially, my analysis that follows will not consider that factor. Similarly, the parties agreed that I should interpret the order of Judge Myers as in no way affecting the “gatekeeper” function of the Crown to receive and review materials provided as part of the police obligation to disclose relevant materials. 4. Positions of the Parties

A. The Chief of Police (Applicant and Intervener) [ 61 ] The Chief argues that R. v. McNeil provides two general categories when records of police officer misconduct and discipline are subject to mandatory Stinchcombe disclosure to the Crown:

a) where the misconduct or alleged misconduct relates to the same incident as a criminal offense for which the accused is charged, and

b) the Ferguson Five categories of misconduct or alleged misconduct. [ 62 ] However, official warnings are not “serious misconduct” ( R. v. McNeil , para. 15 ), and may involve activities that are unrelated to the circumstances surrounding an accused person, such as chiefly administrative disciplinary steps, for example reprimands for being late to work ( Ferguson Report, p. 16). [ 63 ] The Chief notes parallels between the language of s. 45(4) of the Police Act and the Ontario Police Services Act , R.S.O. 1990, c.

P.15, s. 66(4) which authorizes informal resolution of police officer misconduct where that misconduct is “... not of a serious nature ...”. Since Charron J. did not include informal resolution of discipline and misconduct records along with the Ferguson Five categories, the Chief concludes that in Alberta official warnings should receive the same treatment. Other Alberta case law ( R. v. Polny , R. v. Letorneau , R. v. Gangl , R. v. Steele , R. v. Sivachova , R. v. Michaud , R. v.

Auger ) has taken the correct approach. [ 64 ] Further, the Chief argues that Judge Myers erred when he concluded his role was to evaluate what is or is not a serious offense, and in doing so intruded into the Crown’s role as “gatekeeper” during Stinchcombe disclosure. Further, P.C.J. Creagh in R. v.

Auger was correct that evidence did not exist which showed the official warning regime was systemically flawed. [ 65 ] In relation to expunged records, the Chief argues Judge Myers was incorrect that Alberta and Ontario police discipline legislation have comparable procedures that remove police discipline records after a certain period. While the Alberta legislation ( Police Act , s. 22) involves both complaints that are resolved with or without a hearing, the Ontario scheme (Ontario Police Service Act , ss. 64(11), 64(15), 64(16) only expunges misconduct that is resolved informally and without a hearing.

The analyses in R. v. Steele and R. v. Polny were correct, an expunged record of police officer misconduct and discipline is analogous to a pardon of a criminal offense. [ 66 ] Finally, the Chief submits that Judge Myers did not adhere to the principle of judicial comity when he did not follow seven previous though not binding decisions of the Court of Queen’s Bench and the Alberta Provincial Court.

None of the factors identified in Re Hansard Spruce Mills Ltd. , 1954 CanLII 253 (BC SC) , [1954] 4 D.L.R. 590, 34 C.B.R. 202 (B.C.S.C.) that provide a basis for a judge to diverge from the reasoning in a coordinate jurisdiction court exist in the present case. B.

The Police Officers (Applicants and Interveners) [ 67 ] Counsel for the Police Officers conducted a detailed review of the operation and various results that may flow from the disciplinary process provided by the Police Act and the PSR and observed that misconduct by a police officer may result in parallel criminal and police disciplinary proceedings. [ 68 ] The Police Officers stress that s. 22 of the PSR not only mandates that after a critical period disciplinary records must be removed from an officer’s record, but also that those records must be destroyed.

[ 69 ] In most senses all of the Applicants interpret R. v. McNeil in the same manner, although the Police Officers seem to argue that the obligation to disclose information relating to misconduct that may have occurred during interactions between a police officer and an accused should be restricted, and not include allegations that were dismissed or not identified as serious. That arguably is inconsistent with the result in R. v. Yip and R. v. Letourneau at paras. 50-59.

The Police Officers stress that disclosure is required only for information that relates to both “serious misconduct” and which is relevant. [ 70 ] These Applicants conclude that the R. v. Polny , R. v. Letourneau , and R. v. Steele line of cases correctly determined that an official warning is, by definition, a response to officer misconduct that is not serious. The reasoning in R. v. Auger is identified as correct, and a proper extension of the pre- McNeil decision of R. v.

Powder , 2008 ABQB 407 , 455 A.R. 84 that concluded any alleged dysfunction in police agency disciplinary procedures is not a reason for Crown (and presumably court) investigation of those processes (para. 29). [ 71 ] The Police Officers recommend an

interpretation that the procedure found in s. 22 of the PSR is analogous to a pardon, and that provides the basis as to why expunged records should not be subject to Stinchcombe disclosure. Further, removed records are not merely segregated but destroyed, which the Police Officers say indicates the clear intent of the legislature that these materials have no further effect. [ 72 ] These Applicants agree with the Chief that the principle of judicial comity should have led Judge Myers to follow the reasoning in other Alberta cases which have addressed these issues, and cite Searles v.

Alberta (Health and Wellness) , 2010 ABQB 157 , Re Hansard Spruce Mills Ltd. , R. v. Letourneau , 2008 ABPC 192 , 447 A.R. 218, and R. v. Northern Electric Co. Ltd. (1955), 1955 CanLII 392 (ON SC) , 111 C.C.C. 241 (Ont. H.C.). C. The Crown (Respondent) [ 73 ] The Crown’s position is that any requirement for Stinchcombe disclosure had been evaluated and decided correctly in R. v. Polny , R. v. Letourneau , and R. v. Steele . Succinctly, an official warning is only permitted where there has not been serious police officer misconduct, and on that basis official warnings do not require Stinchcombe disclosure.

Subsequent jurisprudence, aside from the decision under review, was correct to take this approach. [ 74 ] Similarly, the Crown cites the R. v. Auger critique of the R. v. Perreault emphasis on individual, though problematic, examples of police service disciplinary proceedings.

These incidents do not taint the entire internal police service disciplinary mechanism to the point that the court must systemically re-evaluate any disciplinary decisions by police chiefs made under the PSR . [ 75 ] The Crown submits that records expunged under PSR are analogous to pardoned criminal offenses, and should be immune from Stinchcombe disclosure on the same basis. D. Perreault (Respondent ) [ 76 ] Counsel for Perreault argues that the decision under review was correct.

Any information within the two new Stinchcombe disclosure categories involve police misconduct of one kind or another (warnings, expunged misconduct), and the operation of provincial legislation is the only reason this information falls outside the Ferguson Five categories of disclosure. Perreault’s ‘constitutional’ argument is to the effect that where ever provincial legislation defines what is “serious misconduct” that represents delegation of the federal criminal authority without legislative justification: R. v.

Furtney , 1991 CanLII 30 (SCC) , [1991] 3 S.C.R. 89 at para. 32 , 129 N.R. 241. [ 77 ] Further, counsel for the respondent warns against inconsistent ‘province to province’ treatment of Stinchcombe disclosure that would result if this Court did not establish the scope of Stinchcombe disclosure of police misconduct and disciplinary records arising

from the Ontario legislation evaluated by the Supreme Court of Canada in R. v. McNeil . [ 78 ] Perreault also argues that a broader disclosure of police officer misconduct and disciplines is appropriate as relevance is highly contextual, and a complete review of misconduct outside the strict confines of a police officer’s interaction with a particular accused person is necessary to identify and capture patterns of police misconduct.

Further, complete Stinchcombe disclosure of all alleged and identified police officer misconduct is more efficient by transferring review of relevance to the Crown. [ 79 ] The allegation that Judge Myers made his decision without regard for judicial comity is incorrect. Instead, counsel for Perreault asserts that Judge Myers provided a thorough analysis of other relevant decisions, and in any case faced a different set of facts than those encountered by other courts. 5.

Analysis [ 80 ] The focus of this decision is simple; Alberta trial courts have reached inconsistent and opposite conclusions on whether certain records of police officer misconduct and discipline should always be disclosed to the Crown by police organizations as part of the R. v. Stinchcombe process. The majority of Alberta court decisions conclude that the ‘Ferguson Five’ list essentially defines the scope of Stinchcombe disclosure by the police of officer misconduct. The decision under review expands on the ‘Ferguson Five’ categories, and orders disclosure of:

a) all official warnings issued by a chief of police, and

b) any finding of guilt for misconduct under the Police Act removed from a police officer’s record following s. 22 of the PSR . [ 81 ] I address each of these categories of expanded police officer misconduct and discipline Stinchcombe disclosure separately. A. Official warnings i.

Alleged institutional dysfunction in police disciplinary procedures [ 82 ] At its core, the basis on which Judge Myers ordered Stinchcombe disclosure of official warnings was his view that a police agency, in this case the EPS, could not be trusted to properly distinguish between officer misconduct which was serious and required a Police Act hearing and misconduct that only warranted an official warning, what the PSR, s. 19(1) heading identifies as “minor contraventions” of proper conduct. [ 83 ] This conclusion appears to have been made on the basis of examples of official warnings issued by the Calgary Police Service (para. 19). [ 84 ] While the Calgary Police Service disciplinary records provided to Judge Myers may be disturbing, I agree fully with P.C.J.

Creagh’s succinct explanation in R. v. Auger at para. 31 on why Judge Myers was wrong to extrapolate from anecdotal evidence that police agency disciplinary procedures are generally dysfunctional and universally biased. [ 85 ] I also note that the police do not have exclusive authority to evaluate complaints of police officer misconduct. Section 48(2) of the Police Act provides a complainant the right to appeal to an independent tribunal, the Law Enforcement Review Board ( Police Act , ss.

9-20.1). Further, that Board itself has a free-standing authority to conduct investigations of complaints of police misconduct ( Police Act , s. 17(1)(a)). Judge Myers was incorrect to conclude that the Crown (and the courts) must re-evaluate the seriousness of every occasion where a police officer is found to have engaged in misconduct. In Alberta police agencies are subject to an apparatus of checks and balances and legislated review ii.

Official warnings as non-serious misconduct [ 86 ] Judge Myers does not directly address the rationale on which the main stream of Alberta decisions concluded that an official warning does not represent the kinds of “serious misconduct” targeted in R. v. McNeil . Simply put, s. 45(4) of the Police Act states an official warning is only a remedy where contraventions of police regulations are not “of a serious nature” and do not require a hearing: R. v. Polny , at para. 39 ; R. v. Letourneau , paras. 119-120; R. v.

Steele , paras. 42-44. [ 87 ] As counsel for the Chief has observed, linking the ‘serious misconduct’ language in s. 45(4) and R. v. McNeil is not merely a matter of semantics, but also reflects parallel legislative schemes in Ontario and Alberta. In R. v. McNeil , Charron J. did not indicate that all alleged and resolved incidents of police officer misconduct warranted Stinchcombe disclosure. Disciplinary records for alleged misconduct which was dismissed with or without a hearing are not included in the Ferguson Five.

However, disclosure is required where a hearing has been ordered or misconduct was identified at a disciplinary hearing. [ 88 ] That leaves out a ‘branch’ of the Ontario scheme ( Ontario Police Services Act , s. 64(11)) where: 1) an officer is found to have engaged in prohibited conduct, 2) a hearing is not ordered, and 3) the police chief orders a penalty.

This scenario involves some identified and blameworthy misconduct on the part of a police officer which does not automatically warrant Stinchcombe disclosure: “... misconduct or unsatisfactory work performance but that it was not of a serious nature ...”. [ 89 ] Similarly, s. 45(4) of the Alberta Police Act authorizes a chief of police to resolve a complaint against a police officer without a hearing where the chief of police concludes the officer has engaged in misconduct.

Official warnings are one of the sanctions provided in that case ( PSR , s. 19(1)(a)(ii)). [ 90 ] I agree with the position of the Chief that the police disciplinary procedures in Alberta and Ontario, where a hearing is not ordered by a police chief but some sanction is nevertheless directed, are functional equivalents.

Both deserve the same Stinchcombe disclosure treatment. [ 91 ] Counsel for Perreault does not squarely address the reasoning of Judge Myers on this and the preceding point and instead advances three additional arguments on why all official warnings should be part of the Stinchcombe disclosure: 1. any given police officer misconduct may be “serious misconduct” in certain circumstances, 2. a pattern of “minor” misconduct may cumulatively amount to “serious misconduct”, and

3. that provincial legislation improperly intrudes on the federal criminal law authority by setting the boundaries of “serious misconduct”. iii. R. v. Melvin - serious misconduct is contextual [ 92 ] One argument advanced by counsel for Perreault parallels the reasoning of Nova Scotia Queen’s Bench Justice Coady in R. v. Melvin : that certain kinds of officer misconduct may have disproportionate significance in specific contexts. 58 ...

There can be circumstances where a discipline infraction is a minor career transgression requiring little by way of consequences, but yet it may have significant credibility impact in a criminal trial. 59 Obviously the record will have greater impact on cross-examination if it discloses even minor elements of deceit, lack of forthrightness, or dishonesty. [ 93 ] In R. v. Melvin an officer had set up a clandestine bank account under questionable and potentially fraudulent circumstances (para. 61), and the Court concluded this kind of conduct was more than an “employment matter”.

Credibility of the officer was an issue at trial. The Court concluded at para. 106 that the police should disclose: ... any records from Cst. A.'s file that relate to his credibility and that could possibly impact on the accused's ability to make full answer and defence” ... Materials released by the police should relate to "serious misconduct". Whether the subject discipline/conduct is resolved formally or informally is not relevant to its disclosure.

The focus must remain on its use by the accused. [ 94 ] Counsel for Perreault argues for an even broader and apparently unrestricted Stinchcombe obligation to provide the Crown records of all official warnings which must then be evaluated for relevance by the Crown. [ 95 ] There is an obvious defect in that position. First, in R. v. McNeil , at para. 25 , Justice Charron indicates that it is atypical for police disciplinary records to be subjects for Stinchcombe disclosure: ...

Hence, production of criminal investigation files involving third parties, and that of police disciplinary records, usually falls to be determined in the context of an O'Connor application . ... [Emphasis added.] [ 96 ] Justice Charron also is very clear that police agencies have a role to evaluate what kinds of police misconduct and discipline records are provided to the Crown as part of the Stinchcombe disclosure.

At para. 15 Justice Charron indicates police are obliged to make Stinchcombe disclosure of: ... serious misconduct ... where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused. [ 97 ] I note that Charron J. does not order disclosure of all serious misconduct, only the serious misconduct that is relevant . Even if that means official warnings can document serious misconduct, there is still no blanket obligation on a police agency to disclose all official warnings; some of those official records may not be relevant.

That parallels the order by Coady J. in R. v. Melvin that the police

service should disclose any records that relate to credibility . The role of a police agency includes discriminating between what information is irrelevant and relevant; “[w]hile the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant.” ( R. v. Stinchcombe , at 774). [ 98 ] Arguably, counsel for Perreault is saying that the police cannot be trusted to properly determine relevance. However in R. v. McNeil the court makes clear that police have a statutory duty to investigate (para. 23), and a common-law obligation to disclose the fruits of their investigation (para. 24).

To argue that the police are unable to decide what is relevant also fundamentally denies the efficacy of police agencies in discharging these two duties imposed by law. iv. Repeated minor misconduct may represent serious misconduct [ 99 ] Counsel for Perreault argues for Stinchcombe disclosure of all official warnings (and presumably also expunged records) on the basis that certain forms of serious police misconduct may only emerge from the total misconduct and disciplinary record of an officer, and cites R. v.

Grant , 2009 SCC 3 at para. 75 , [2009] 2 S.C.R. 353 for its statement that in a s. 24(2) of the Charter context evidence of intentional disregard for Charter principles is a basis on which to exclude evidence. I do not see the applicability of the R. v.

Grant passage, as it seems to me that a police officer would have engaged in serious misconduct if that officer knowingly and intentionally ignored the Charter . [ 100 ] The Respondent’s argument appears to boil down to a proposition that minor misconduct may disclose a pattern with serious implications. [ 101 ] This reasoning is a variation on the argument that police agencies cannot be trusted to properly administer their disciplinary procedures.

Organizations typically respond to repeated minor breaches of protocol and regulations with increasing concern, and I fully expect that the Chief of the EPS would only issue a certain number of official warnings to a recalcitrant police officer before taking a harder line and proceeding to hold a formal disciplinary hearing. That hearing would then fall into the Ferguson Five category. Truly serious police officer misconduct reflected in repeated acts would therefore be detected and reported to the Crown as part of the Stinchcombe disclosure. v.

Provincial authority intruding into federal criminal jurisdiction [ 102 ] In para. 29 of the Decision Judge Myers concludes that the provincial Police Act cannot affect “... procedures involving federal criminal law.” Counsel for Perreault seems to argue that if provincial legislation defines what is R. v. McNeil “serious misconduct”, then that represents delegation of the federal criminal authority without legislative justification. [ 103 ] The Respondent appears to direct his constitutional complaint to the s. 22 of PSR procedure authorizing the removal of police officer misconduct and discipline.

However, I see no reason why that argument would not apply equally to the way the Police Act authorizes a police chief to respond to officer misconduct with an official warning or other non-hearing response which would not be subject to automatic Stinchcombe disclosure. Therefore, I will also address the ‘constitutional jurisdiction’ argument at this point. [ 104 ] If I understand the argument by Perreault’s counsel, he asserts:

a) that determination of whether evidence is disclosed by a police agency to the Crown is a question of federal criminal law procedure,

b) the Criminal Code does not explicitly delegate that authority in whole or in part to the provincial legislatures,

c) certain Alberta legislation, the Police Act and PSR , affect whether evidence of police officer misconduct and discipline is disclosed to the Crown as part of the police agency’s Stinchcombe disclosure obligation, and

d) therefore the Police Act and PSR intrude on the federal criminal authority. [ 105 ] There is a simple response to this argument; in R. v. McNeil , at para. 57 , Justice Charron included breaches of either federal and provincial legislation as constituting types of evidence that must be presumptively provided to the Crown as part of a police agency Stinchcombe disclosure. Put another way, illegal conduct by a police officer is always potentially relevant. [ 106 ] The Police Act and the PSR do not permit discharge, discontinuance of action, or pardon of any criminal or other federal offenses by a police officer.

As such, the Police Act and the PSR do not intrude on any federal authority to designate certain conduct as illegal. Again, framed in a different manner, the Police Act and the PSR do not provide any mechanism by which a police officer can conceal or immunize his ‘federal’ illegal conduct from Stinchcombe disclosure. [ 107 ] This fact also explains why a police chief’s decision to reject a complaint of misconduct or to respond to a police officer’s misconduct with an official warning does not intrude into a federal jurisdiction.

The Alberta Legislature has defined what conduct within its jurisdictions is permitted or forbidden, and also the consequences for any misconduct. The Alberta Police Act and the PSR clearly lay out what police officer actions are prohibited ( PSR , s. 5), and the procedure and sanctions that follow from that prohibited conduct ( Police Act , PSR ).

That is all properly part of the province’s authority; a chief of police is delegated authority by the province to order certain kinds of discipline where a police officer does not comply with his or her statutory duties. [ 108 ] Perhaps stating the obvious, wrongful conduct is not necessarily the sole purview of Parliament or a Legislature. A police officer may by his or her actions simultaneously commit a criminal offense and breach obligations set by the Police Act and PSR . R. v.

McNeil says a police agency would have a duty to report both of those offenses, each under its own heading. [ 109 ] Justice Charron concluded a defendant in a criminal matter has a presumptive right to know of any breach or pending charge of breach of federal or provincial legislation by a police officer with whom the defendant was involved. R. v. McNeil does not stand for the proposition that a province is somehow incapable of defining what is or is not non-criminal police misconduct. vi.

Official warnings - conclusion [ 110 ] I conclude that there is no obligation on a police agency to automatically provide to the Crown as part of its Stinchcombe disclosure all official warnings to a police officer. That is not to say that official warnings would never be subject to Stinchcombe disclosure, rather an official warning may be subject to Stinchcombe disclosure where that warning has a special relevance to the defence of an accused person, for example where an official warning arises from interactions between a police officer and the particular accused. B.

Records of misconduct removed from police records under s. 22 of the PSR [ 111 ] Judge Myers concluded that expunged records of police misconduct should be disclosed as part of the fourth category of the Ferguson Five, “[a]ny finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act.” In coming to that conclusion he reasoned that an ‘expunged discipline record’ is different from a pardoned conviction or finding of guilt under the Criminal Code or Controlled Drugs and Substances Act . That is the crux of the difference between R. v.

Perreault and the other cases which have considered records of police officer misconduct and discipline that are removed and destroyed pursuant to s. 22 (

c) and 22(

d) of the PSR .

i. Expunged records as analogous to a pardon [ 112 ] Justice Charron does not comment in R. v. McNeil on the rationale for why pardoned federal offenses are not subject to automatic Stinchcombe disclosure, however that omission is not all that unexpected given the legislative scheme of the Criminal Records Act , R.S.C. 1985, c. C-47 for pardons of criminal convictions.

That Act states that where the National Parole Board concludes a pardon should be issued (s. 4.1), the pardoned conviction “... should no longer reflect adversely on the applicant’s character ...” ( s. 5 (a) (ii)), and is generally no longer to be reported to the public ( ss. 5 (b), 6-6.4). Section 748(3) of the Criminal Code states that a free pardon to a person by the Governor in Council means the person is deemed to never have committed the pardoned offense. [ 113 ] Put in the context of the language in R. v.

McNeil , that criminal conviction of a police officer is no longer relevant. [ 114 ] While Judge Myers identifies what he considers a number of critical distinctions between the criminal parole regime and the s. 22 of the PSR procedures, I disagree that these represent a fundamental difference between the two schemes. Both s. 22 and the parole regime have the same result; they eliminate the legal and professional effect of prior wrongdoing.

Both schemes separate wrongdoing into more than one category, with a longer period of good conduct required before the record of the wrongful conduct is removed ( PSR , ss. 22(a), 22(b); Criminal Records Act , ss. 4, 4.01 ).

A period of uninterrupted good behaviour is necessary to establish a clear break from prior misconduct and warrant record removal ( PSR , s. 22; Criminal Records Act , s. 4.1(1)(a)). [ 115 ] I do not see a difference in the moral implications of either regime, though admittedly when a police officer’s misconduct and discipline record is expunged the PSR does not spell out that means those expunged records “... should no longer reflect adversely on the applicant’s character” ( Criminal Records Act , s. 5(a)(ii)). Nevertheless, that is precisely the effect of s. 22 (

d) of the PSR : “... the contravention or the action taken shall ... not be used or referred to in any future proceedings respecting that police officer.” [ 116 ] The absence of any fee for service is unsurprising for what is, in effect, an aspect of employment. Finally, unlike a criminal pardon, the PSR procedure is automatic. That is a significant difference, however it is a procedural distinction rather than a functional difference between the two schemes. [ 117 ] I therefore concur with the reasoning in R. v. Polny , R. v. Letourneau , and R. v.

Steele that there is no significant difference between the objectives and operation of the federal criminal offense pardon regime and the procedure found in s. 22 of the PSR . ii. PSR, s. 22 only prohibits use of expunged records in actions against a police officer [ 118 ] Another basis on which Judge Myers concludes the criminal pardon and s. 22 regimes differ is that s. 22 (

d) of the PSR only prohibits reference to expunged records in “any future proceeding respecting that police officer ” [emphasis added]. Judge Myers concludes that prohibition does not extend to proceedings that relate to other persons . [ 119 ] As I earlier suggested, I do not agree with that

interpretation of s. 22(d), as s. 22(

c) requires the discipline records be destroyed , which implicitly prohibits disclosure to anyone after that point. iii. Provincial mechanisms to remove police discipline records intrude on the federal criminal authority [ 120 ] Counsel for Perreault seems to have two ‘constitutional’ arguments as to why s. 22 of the PSR procedures that remove and destroy records of police officer misconduct and discipline are inappropriate. The first is that this provision intrudes into the federal

criminal procedure authority. I have disposed of that argument above in paras. 102 to 109 above. [ 121 ] The second argument is to the effect that while the Ontario Legislature has only authorized a mechanism to expunge complaints of police misconduct that were resolved informally, Alberta has gone further and s. 22 (

a) of the PSR results in destruction of police discipline records which flow from a disciplinary hearing.

Perreault seems to argue that any ‘province to province’ variation in the manner in which police misconduct and discipline records are purged exceeds provincial authority: It would be contrary to the consistent application of the law across Canada if, in Alberta, records older than 5 years would be suppressed from disclosure to the accused, but if the accused was in Ontario, they would be disclosed. (Perreault written argument, para. 71 ) [ 122 ] Again, there is a simple answer to that argument; police standards and discipline procedures are matters of provincial jurisdiction, and there is no obligation for any province to conform to another province’s approach.

Justice Charron in R. v. McNeil did not indicate any standard for provinces on the scope of what is police officer misconduct, how police agencies should investigate and sanction police officer misconduct, or how findings of misconduct may or may not be removed from an officer’s record. iv. Removing “serious” misconduct from Stinchcombe disclosure is wrong [ 123 ] Counsel for Perreault seems to place significance on a difference between the Ontario and Alberta mechanisms that expunge police agency records of officer misconduct and discipline.

The Ontario regime automatically removes records of discipline which were resolved informally, while in Alberta s. 22 of the PSR targets both records of misconduct and discipline which flow from informal processes and from disciplinary hearings. [ 124 ] The Ferguson Five include records of alleged misconduct scheduled for a disciplinary hearing, and where misconduct was identified at a police disciplinary hearing.

Clearly, these are examples of “serious misconduct”. [ 125 ] If I understand counsel for Perreault, he argues that a province could never pass legislation which would make serious police misconduct identified at a police disciplinary hearing inaccessible to an accused person. I see no principled basis as to why Alberta could not choose to ‘pardon’ police officers of serious breaches of discipline, after all Parliament has done just that for criminal offenses and Charron J. in R. v. McNeil does not identify federal criminal offense pardons as infringing on the fair trial rights of accused persons. v.

Expunged police records - conclusion [ 126 ] I conclude that there is no obligation on a police agency to automatically provide to the Crown as part of its Stinchcombe disclosure all records of police misconduct and discipline that have been removed and destroyed pursuant to s. 22 of the PSR . Any such expunged record is analogous to a pardoned criminal offense and is no longer relevant to any accused person who is involved with the police officer. C.

Judicial comity, and the principle of stare decisis [ 127 ] The Applicants argue that by concluding that mandatory Stinchcombe disclosure includes official warnings to police officers and records of police misconduct and discipline removed under s. 22 of the PSR that Judge Myers did not conform to the principle of judicial comity. As I have commented in my review of the Alberta decisions, the conclusions reached by Judge Myers were inconsistent and contrary to the reasoning and results of other Alberta trial judges.

[ 128 ] Consistency and predictability are critical aspects of the Canadian and other common law legal systems. The central mechanism by which results in any given legal proceeding can be anticipated with confidence is that the conclusions of certain courts within a hierarchy bind other lower courts. This principle is known by the phrase “ stare decisis ”.

This “rule” (as it is often described) has been commonly understood in modern terms to mean that every court is bound to follow the reasoning and conclusions in any case decided by another court higher in the hierarchy. [ 129 ] A second and less often discussed principle is “judicial comity”, which means that when a judge considers a matter and another judge of the same hierarchical level has already addressed the same question of law, then the newer proceeding should be decided in a manner consistent with the first.

This might be seen as a question of ‘horizontal’ rather than ‘vertical’ consistency and predictability. [ 130 ] The Applicants allege that Judge Myers breached the principle of judicial comity when he came to legal conclusions that were inconsistent with at least eight earlier decisions of Alberta Provincial Court and Queen’s Bench trial judges (see paras. 16 - 35 above) and that is a basis on which this matter should be returned to the Provincial Court with a direction that it be decided on the law which this Court has stated. [ 131 ] Judicial comity is not nearly as well developed a concept as stare decisis .

In Searles v. Alberta (Health and Wellness) , at paras. 22-24 I cited an academic paper that considered judicial comity (Debra Parkes, “Precedent Unbound? Contemporary Approaches to Precedent in Canada” (2007) 32 Man. L.J. 135, 162) which reviews Re Hansard Spruce Mills Ltd. , the leading Canadian case on judicial comity. This 1954 decision of the British Columbia Court of Queen’s Bench provides an often cited rule: I will only go against a judgment of another judge of this court if: (

a) Subsequent decisions have affected the validity of the impugned judgment; (

b) It is demonstrated that some binding authority in case law or some relevant statute was not considered; (

c) The judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority. [ 132 ] The Applicants argue that Judge Myers’ variation from the reasoning in the other coordinate and concurrent jurisdiction courts does not involve any of these three categories. [ 133 ] Re Hansard Spruce Mills Ltd. has not been cited in any reported cases from certain Canadian jurisdictions (New Brunswick, Prince Edward Island, Yukon, Northwest Territories, Nunavut), but the case has a long history of application in British Columbia.

In other jurisdictions trial judges have considered the scope and ‘strength’ of judicial comity, for example in Holmes v. Jarrett (1993), 1993 CanLII 8479 (ON SC) , 68 O.R. (3d) 667, [1993] I.L.R. 2371 (Ont. Ct. Jus. (Gen. Div.)), R. v. Letourneau , 2008 ABPC 192 at paras. 42- 52 , 447 A.R. 218 , and most recently in a useful review by Smith P.C.J. in R. v. Kehler , 2009 MBPC 29 , 242 Man. R. (2d) 15 . [ 134 ] Here, I am asked to decide whether judicial comity is a basis for a reviewing court on a judicial review to reject the findings of a judge below. [ 135 ] Ludwig v.

Bos , 2010 BCCA 203 , a recent decision of the British Columbia Court of Appeal, highlights at para. 18 a key aspect of judicial comity that differentiates judicial comity from stare decisis . Stare decisis is a principle enforced downward through the hierarchy of Canadian courts via the appeals process. Judicial comity, no matter its scope, is essentially a rule of practice developed in a court between judges who are peers.

Bennett J.A. concludes any appellate or review court has a very restricted role in developing any such kind of rule of practice, and cites the reasoning of Lambert J.A. in John Carten Personal Law Corporation v. British Columbia (Attorney General) (1997), 1997 CanLII 2008 (BC CA) , 153 D.L.R.(4th) 460, 40 B.C.L.R. (3d) 181 (B.C.C.A.):

[7] In re Hansard Spruce Mills embodies a rule of judicial comity. It was propounded by Mr. Justice Wilson, later Chief Justice, as a guide for one trial court judge examining an issue which had already been considered and decided by another judge of the same court. It is not a principle that directly binds this Court in dealing with our own previous decisions. ... What is more, this Court is not obliged to decline to review a Supreme Court of British Columbia decision because of the Hansard Spruce Mills rule, since we are not bound to follow previous Supreme Court of British Columbia decisions.

So, no matter what view we might form about whether Mr. Justice Lowry was correct in applying Hansard Spruce Mills in this case, we would still be obliged to consider the eight issues that Mr. Carten wished to raise before Mr. Justice Lowry and which he has argued before us. It follows that in this Court the Hansard Spruce Mills issue is moot. I do not think that the Supreme Court judges, who developed the Hansard Spruce Mills rules and who are familiar with their application, need to have any issues connected with the application of those rules resolved by this Court.

If the application given to the Hansard Spruce Mills rules by M

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