Edmonton Police Association v Edmonton (City), 2015 ABQB 808

Court of Queen’s Bench of Alberta Citation: Edmonton Police Association v Edmonton (City), 2015 ABQB 808 Date: 20151216 Docket: 1403 16655 Registry: Edmonton Between: Edmonton Police Association Applicant - and - City of Edmonton – Edmonton Police Service Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice E.J.

Simpson _______________________________________________________ Introduction [1] The Edmonton Police Service [EPS or Respondent] imposed duty restrictions on a detective [the Grievor] December 10,2008 after an investigation of him in relation to a disciplinary matter. The case collapsed March 18, 2010 when the hearing endedwithout the calling of evidence. When the Grievor sought to return to his original duties as a detective, EPS denied his request, insteadoffering him roles which would limit his court appearances as a witness.

The EPS justified this restriction of duties as related to apossible risk the EPS might face should an application pursuant to R v O’Connor, (SCC), [1995] 4 SCR 411, 44 CR(4th) 1 [O’Connor application] be made for disclosure of the Grievor’s file. The Grievor filed a grievance. An Arbitrator made an awardNovember 11, 2014 [Award or Decision]. From that award the Edmonton Police Association [EPA or Applicant] seeks judicial review.

Facts [ 2 ] The EPA represents, as a Union, all regular sworn-in personnel of the EPS with a rank junior to that of inspector. This includes the detective, Grievor. [ 3 ] The Respondent City of Edmonton operates the EPS and employs members of the EPA including the Grievor. [ 4 ] The Grievor achieved the rank of detective in January, 2007. [ 5 ] On December 10, 2008, the EPS imposed a number of duty restrictions on the Grievor as it conducted an ongoing disciplinary investigation following complaints regarding his conduct.

While it investigated, the EPS transferred the Grievor out of his specialized detective unit into his present position as a detective with the Economic Crimes Unit of the EPS. [ 6 ] On December 3, 2009, the EPS filed charges against the Grievor with respect to a number of violations of the Police Service Regulation , Alta Reg 356/1990 [ Regulation ] .

The disciplinary infractions if proven would have reflected a serious breach of the Regulation and the Police Act , RSA 2000, c P-17. [ 7 ] The key witnesses in respect of the disciplinary charges were sex trade workers and they did not cooperate with the EPS. [ 8 ] Throughout the disciplinary proceedings, the Grievor maintained his innocence and the matter went to hearing. On March 18, 2010 the disciplinary hearing collapsed without the calling of evidence to support the charges. [ 9 ] The EPS formally withdrew the disciplinary charges against the Grievor May 3, 2010.

The EPS advised the Grievor May 18, 2010 “all matters ... have been concluded ... and all restrictions are lifted”. He was advised to consider his next placement within the EPS. The Grievor then applied to return to his position as detective where he served prior to 2008. The EPS rejected the request by the Grievor to be transferred to areas of Child Protection, Homicide, Sexual Assault, Vice and Domestic Violence. [ 10 ] On November 15, 2010, the EPA filed a grievance on behalf of the Grievor alleging

a) the involuntary transfer of the Grievor into Ecomonic Crimes Unit and restrictions on his duties, from December 11, 2008 to May 18, 2010 had been a violation of the collective agreement; and

b) the ongoing restriction of the Grievor’s placement within the EPS since May 18, 2010 were a further violation of the Collective Agreement. [ 11 ] The Grievor made further inquiries with respect to detective positions. The EPS referenced the Supreme Court of Canada’s decision in R v McNeil , 2009 SCC 3 , [2009] 1 SCR 66 [ McNeil ], to support its decision to maintain the Grievor in the Economic Crimes Unit stating as follows: The EPS has a duty to ensure its employees are not placed in positions that could compromise prosecutions. As you are aware, in R. v.

McNeil , [the] Supreme Court of Canada specifically stated that police have a duty to disclose relevant information that is contained in police disciplinary records. Just what is relevant will depend on the facts of each case. As such, it is not possible to provide a comprehensive list of assignments that would result in the duty to disclose information from the grievor’s Professional Standard Branch file. [ 12 ] The Grievor continued to receive subpoenas and testified in cases in which he was involved prior to the investigation. He estimates this to have occurred two or three times.

At no time were any issues raised in these cases over any McNeil factors or by way of an O’Connor application. [ 13 ] EPS put forward a list of positions in January, 2014 that it considered acceptable for the Grievor to pursue by way of a transfer.

The EPS, however, continued to restrict the Grievor from transferring to detective positions within the EPS including Child Protection, Homicide, Sexual Assault, Vice, and Domestic Violence units. [ 14 ] Unable to resolve their differences, the EPA and EPS, aware of jurisdictional questions involving arbitration with respect to the Collective Agreement between the parties, the criminal law, the civil law, the Police Act , and the Regulation , agreed to proceed by way of arbitration to avoid disputes over form, unnecessary duplication of cost, effort and adjudication. [ 15 ] To that end they agreed the arbitration would address two questions: 1.

Whether the involuntary transfer of the Grievor and restrictions on his duties from December 11, 2008 to May 18, 2010 was a violation of the Collective Agreement and if so, what remedy is appropriate, and; 2.

Whether the ongoing restrictions on the Grievor’s placement within EPS and what duties he may carry out are in violation of the Collective Agreement and if so, what remedy is appropriate. [ 16 ] Upon hearing the parties at arbitration, the Arbitrator ruled in favor of the EPS with respect to both questions. [ 17 ] The EPA takes no issue with the ruling with respect to restrictions prior to May 18, 2010. [ 18 ] However, the EPA seeks judicial review with respect to the Arbitrator’s answers to the second question wherein he upheld ongoing restrictions on the Grievor’s placement within EPS after May 18, 2010, and decided that:

a) There remained a “testamentary risk” notwithstanding the disciplinary charges had been withdrawn;

b) This risk arose from the potential disclosure of the investigative file pursuant to an R v O’Connor [application] and the risk washeightened by the filing of a civil action by the Grievor against EPS.

c) The actions of EPS preventing the Grievor from transferring into certain positions since May 18, 2010, are justified. [19] The Arbitrator also concluded that the restrictions could be maintained by the EPS indefinitely, subject to ongoingreassessments. Issues [20] The issues for consideration in this application are as follows: 1. What standard of review applies to the Arbitrator’s award? 2. Did the Arbitrator fail to consider relevant facts or make findings of fact in the absence of material evidence to support hisfinding? 3.

Did the Arbitrator err when he upheld the ongoing restrictions EPS imposed on the Grievor, notwithstanding his findingthat EPS was in technical (procedural) breach of the Collective Agreement? Law [21] The Police Service Regulation, s 22 provides: 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 [dealingwith “Misconduct of a police officer”], or (

b) a period of not less than one and not more than 3 years, as specified in writing by the chief of police, in respect of a police officer, orthe commission, in respect of the chief, 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 ofdiscipline, 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. [22] The Police Officers Collective Bargaining Act, RSA 2000, c P-18, s 33(2) reads:

(2) The decision or proceedings of an arbitrator, grievance arbitration board or other body may be questioned or reviewed by way of anapplication for judicial review in the nature of certiorari or mandamus if the application is filed with the court not later than 30 days afterthe issuance of the award of the arbitrator, grievance arbitration board or other body.

Standard of Review [23] Counsel for the parties agree the presumptive standard of review in relation to the Arbitrator’s decision with respect tointerpreting the Collective Agreement and the Police Service Regulation is reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] SCC 9, [2008] 1 SCR 190, and Lethbridge Regional Police Service v Lethbridge Police Assn, 2013 ABCA 47 at paras26, 27, 29, 542 AR 252. [24] They also agree that for questions of general law that are both of central importance to the legal system and outside theAdjudicator’s specialized area of expertise, the correctness standard of review applies: Dunsmuir at para 60. [25] However, counsel for the parties do not agree with respect to the standard of review applicable to the Arbitrator’s assessmentof “testamentary risk” arising from the possible disclosure of the records of the investigative file by way of an O’Connor application in acriminal trial. [26] The EPA submits that the standard of review is correctness on the issue of whether there is a real “testamentary risk” becauseof a potential application for, or disclosure of, police disciplinary records under O’Connor in the context of criminal trial.

The EPAargues that: These issues – including opinions on issues that may arise in “future criminal proceedings” – are outside the expertise of a labourarbitrator, and the issue of when third party police records are likely at risk of being disclosed in a criminal trial is of general importanceto the legal system. The Courts also have jurisdiction over this issue (and arguably have exclusive jurisdiction over this issue in practice),and therefore consistency requires that the standard of review be correctness.

See, EPA Brief, at para 37-38 [ 27 ] The EPA urges this Court to decide the O’Connor application issue on the standard of correctness, and then review the Arbitrator’s findings regarding the EPS’s exercise of “management rights” on a standard of reasonableness. [ 28 ] Conversely, the EPS contends that consideration must be given to the context in which the issue before the Arbitrator is addressed.

In the present case, the EPS contends, the dispute before the Arbitrator has little consequence outside the world of labour law; and that reality determines the applicable standard of review: McLean v British Columbia (Securities Commission) , 2013 SCC 67 , at paras 26-30 , [2013] 3 SCR 895; Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper , Ltd , 2013 SCC 34 at paras 15 ,16, 66, 359 DLR (4th) 394.

The EPS submits that the application of Dunsmuir to the facts of this case suggests that the reasonableness standard of review applies, whether the matter is considered a question of law or mixed fact and law. [ 29 ] The EPS argues that the question dealing with ongoing restrictions on the Grievor’s placement within the EPS, since May 18, 2010, engaged the analysis of the Collective Agreement negotiated under the provisions of the Police Officers Collective Bargaining Act , and is within the context of labour relations.

The Respondent notes that the Arbitrator analyzed EPS’s contractual right to decide on an officer’s placement and work duties in the context of the Collective Agreement; and considered the competing interests between an employers’ right to manage its operations in response to perceived risks and an employee’s right to career advancement opportunities that are not prejudiced by unfair restrictions on placement.

EPS maintains that the Arbitrator’s task involved an assessment of the risks versus the reasonableness of the restrictions imposed in response to that risk: EPS Brief, at paras 29-31. [ 30 ] The EPS submits that because the Arbitrator had to consider rules of disclosure under criminal law that by no means elevates the standard of review to correctness. This, it argues, would presume that the Arbitrator’s ruling would have the potential of influencing a judicial decision regarding whether evidence should be provided to counsel for an accused regarding the investigation of the Grievor.

The Arbitrator was not presented with any sort of factual foundation to make such a decision. Accordingly, a judge or justice would not consider the Arbitrator’s opinion in a future O’Connor application. Decision re Standard of Review [ 31 ] It is important to emphasize that the question which the parties consensually put to the Arbitrator for resolution was: Whether the ongoing restrictions on the Grievor’s placement within EPS and what duties he may carry out are in violation of the Collective Agreement and if so, what remedy is appropriate?

This question required the Arbitrator to answer whether or not the EPS violated the Collective Agreement when, after May 18, 2010, they continued to restrict the Grievor’s placement within the EPS. [ 32 ] The reason for EPS’s restriction of the Grievor was that the officer presented a risk with respect to testifying in certain criminal proceedings. The Arbitrator characterized this risk as “the testamentary risk.” [ 33 ] Thus, the initial task for the Arbitrator was to assess and determine whether the Grievor constituted a testamentary risk in the context of the Collective Agreement.

To perform this task, as unanimously requested of him by the disputing parties, the Arbitrator relied on the common law test and jurisprudence that govern situations where police officers – such as the Grievor – are required to testify in a criminal trial, and in respect of which the EPS, as an employer of such police officer(s), might be called upon to make disclosures in respect of such officers who are required to give testimonies. [ 34 ] Accordingly, in answering this question posed by the parties and in order to determine the Grievor’s “testamentary risk,” the Arbitrator reviewed the jurisprudence – provided by counsel for both parties – that has evolved around R v McNeil and R v O’Connor disclosure.

Significantly, the Arbitrator was not hearing an O’Connor application from the parties to the arbitration in this matter, since he had no criminal law jurisdiction to conduct such an exercise. Neither was the Arbitrator determining whether the EPS should make a disclosure of the Grievor’s record or not.

That kind of disclosure determination or adjudication remains within the exclusive domain of a court of competent criminal jurisdiction, and not that of an administrative decision-maker interpreting a collective agreement and related statutes in the context of labour relations. [ 35 ] The Arbitrator’s ruling focused on whether, based on the common law principles governing disclosure, there was a “testamentary risk” and how that might affect the Grievor /officer and the EPS.

The Supreme Court of Canada has indicated that although common law emanates from the superior courts, it does not follow “that arbitrators lack either the legal authority or the expertise required to adapt and apply them in a manner more appropriate to the arbitration of disputes and grievances in a labour relations context”: Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals , 2011 SCC 59 at para 44 , [2011] 3 SCR 616.

The Supreme Court emphasized that “the application of general rules or principles of law will not automatically be reviewed for correctness unless they raise legal issues “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise”: Ibid at para 55. [ 36 ] In the present case, the Arbitrator’s consideration of the case law on disclosure – i.e.

R v McNeil , R v O’Connor , and their progeny – in the context of the ongoing restrictions on the Grievor’s placement within EPS and the Collective Agreement, did not elevate the issue regarding the assessment of “testamentary risk” to a general question of law that is “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise”: McLean at para 27 . [ 37 ] Accordingly, I conclude that the reasonableness standard of review applies to the question of whether or not the Arbitrator erred in his assessment of the “testamentary risk,” as well as his conclusion regarding the ongoing restrictions on the Grievor’s placement within EPS in light of the provisions of the relevant Collective Agreement. [ 38 ] I turn now to discuss the Applicant’s grounds for judicial review.

Parties’ arguments

Issue 1. Did the Arbitrator fail to consider relevant facts or make findings of factin the absence of material evidence to support his finding? Position of the EPA [39] The Applicant submits that the Arbitrator erred when he concluded that there is a real “testamentary risk” to prosecutions ifthe Grievor’s investigation records relating to the withdrawn disciplinary charges were disclosed to defence counsel, notwithstandingthat: (

a) The investigation records were not in evidence at the arbitration; (

b) The absence of any evidence from the Crown supporting the conclusion that the Grievor would likely pose any actual risk to aprosecution; (

c) The caselaw in Alberta confirms that an accused person would be unable to obtain disciplinary investigation records after chargeshad been withdrawn: R v McCarthy, 2008 ABQB 215, 439 AR 365. [40] The Applicant argues that the Arbitrator’s Decision suffers a fundamental problem in that the actual investigation records –which would constitute the source of any “testamentary risk” – were not in evidence at the arbitration. As such, there was no evidentiarybasis for the Arbitrator to conclude that those investigation records in fact create a testamentary risk that would likely prejudice aprosecution.

The EPA maintains that it was unreasonable for the Arbitrator to review allegations (and counter-allegations) in the civillitigation pleadings as the basis for his assessment. [41] The Applicant contends that the Respondent, EPS did not present any evidence that Crown Counsel, as “gate keeper,” wouldconsider records about withdrawn disciplinary charges to be relevant under either McNeil or O’Connor, or that the Grievor might be arisk to future prosecutions.

The Applicant argues that it is not the role of the EPS to determine whether a record is relevant and should bedisclosed, but the responsibility of the Crown, at first instance, and the trial court on an application under McNeil or O’Connor. [42] The Applicant EPA submits that this lack of evidence from the Crown, as to whether a record is relevant and should bedisclosed, makes the Arbitrator’s “conclusions an exercise in speculation without a proper evidentiary basis.” Position of the EPS [43] The Respondent argues that although the disciplinary charges against the Grievor have been withdrawn, the pleadings in thecivil action commenced by the Grievor make what are contained in them by way of allegations a public record.

These include allegationsof abuse of authority made by certain members of the sex trades, details of the reason why the Grievor was thought to be the officer whomay have engaged in those acts, as well as an indication that “a report exists, which sets out the full investigation and the reasons for[concluding that] there were reasonable grounds [to] support the view that if the Grievor was charged, [the misconduct charges] inrelation to those complaints could be established.” [44] The EPS submits that the Arbitrator’s Decision was clear to the effect that on an objective basis, a “testamentary risk” in thiscase arises by way of the ability of an accused person to make an O’Connor application to access third party records such as informationabout the Grievor’s Police Act charges.

The Respondent contends that the likelihood of bringing such an application depends on whetherthe Grievor was involved in the investigation and whether his evidence and credibility are necessary for a successful prosecution.

TheEPS maintains that it was reasonable for the Arbitrator to find that the “testamentary risk” increased by the Grievor’s civil action againstthe Respondent, which is not subject to any publication ban. [45] The EPS argues that the term “testamentary risk” here broadly encompasses the “sidetracking” of a case by exploration of anofficer’s disciplinary record.” The Respondent indicates that “sidetracking” does not require that the record itself be ultimately disclosedto defence counsel, but engages a concern that “sufficient prejudice would arise from the O’Connor process itself.” [46] Finally, the EPS submits that there is an ongoing debate around the relevance of unproven charges in the context of anO’Connor application: R v Scaduto, (ON SC), [1999] OJ No 1906, 63 CRR (2d) 155 (Ont Sup Ct); and R v Jama,2011 ONSC 187.

As such, the Respondent argues, the dismissal of charges against a police officer is not a complete answer, andinvestigation records related to such a dismissal may still be relevant, depending on the nature of the issues before the Court making theultimate determination.

Analysis and conclusion re: Issue 1 [47] It is important to observe that an Arbitrator’s consideration of jurisprudence that has evolved around R v McNeil and R vO’Connor disclosure for the purpose of assessing a “testamentary risk” is distinctive from the actual conduct of a judicial analysis by acourt of competent criminal jurisdiction to determine whether a disclosure should be made to an accused, pursuant to a McNeil or anO’Connor application. [48] Significantly, before a court of competent criminal jurisdiction will make any actual determination under an O’Connorapplication, it must be aware of the charge(

s) against the accused, the nature of the police officer’s (i.e. the Grievor’

s) role in the relevant

investigation, and the potential defences available to the accused person. [49] Conversely, an Arbitrator making a less intensive assessment of a “testamentary risk,” in the context of administrative law andlabour relations, is not obligated to consider all that the trial courts are required to examine before making disclosure orders. And clearly,in the present matter, the parties agreed that the testamentary risk that the Arbitrator was invited to assess would be within the context oflabour and employment law.

The Process and Jurisdiction Agreement which the parties entered into indicated that the matter was to beresolved as a matter of employment law outside the purview of the Police Act: Transcript of Proceedings, 75/18-27. [50] Further, in addition to the Process and Jurisdiction Agreement, both the Applicant and the Respondent acted together andagreed to present the Arbitrator with (

i) an “Agreed Statement of Facts” – which indicates that the allegations, if proven, would amountto a serious breach of the Regulation; and (ii) a set of questions and issues, for his consideration in the process of the discharge of hisarbitral responsibilities. [51] In this context, I note that the Arbitrator, in performing his arbitral duty, was aware of the limitations of his authority, andstated in his Decision that: The first step [of the arbitration] involves an assessment of the criminal law cases that describe how a police officer, involved in a criminalcase, might find their evidence or involvement challenged because of allegations made against them in the past.

Because of the way thecriminal law has developed, particularly since the seminal decision in R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, it isnot only what takes place at a trial that is significant. There are now obligations of pre-trial disclosure from the police to the Crown plusenhanced defense opportunities to seek pre-trial disclosure. The purpose of this review is to assess the “testamentary risk” the Police Service feels it must manage where an officer, assigned to aninvestigative role, may have to testify in a case and be faced with allegations from that officer’s past...

This case is not about what the rules of disclosure should be. These rules are set by judicial precedent...

The state of this law will bedescribed, but only for the purposes of establishing the context of the risks within which this case must be decided. [Emphasis added]. [52] It was reasonable for the Arbitrator to use O’Connor and related jurisprudence as the objective test or basis for assessing“testamentary risk,” which the terms of the Process and Jurisdiction Agreement mandated him to perform in the context of thecircumstances outlined in the Agreed Statement of Facts. [53] And in this respect, although the Ontario cases – that suggest investigation records in cases where charges against officers arewithdrawn may be subject to disclosure – are non-binding in Alberta, they were reasonably considered by the Arbitrator as possiblealternative approach that a superior/trial Court dealing with an O’Connor application may adopt in the course of a criminal law matter. [54] Following his review of the relevant disclosure jurisprudence, the Arbitrator concluded, at pp 50-51, of his Award: Once the charges against the grievor were formally withdrawn, the Service was no longer obliged to include any reference to thesematters in any McNeil package.

Despite vigorous attempts to extend the McNeil ruling to mere allegations, or to incomplete or withdrawncharges, such efforts in Alberta have been rejected. To the extent there was a remaining testamentary risk, it arose from O’Connor notMcNeil. Does it follow, as the Association argues, that once the Police Act charges were over, there was no significant remaining testamentaryrisk? My conclusion is that it does not. Should the grievor be involved, to a significant degree, in a case destined for trial, there remainedsome prospect of the Service feeling obliged to seek the Crown’s advice on disclosure.

There remained some prospect that the Crownwould feel obliged to inform the defense of the Police Act investigation file so that an O’Connor motion might be made. There remaineda risk that based on such notice, or on evidence obtained from elsewhere, defense counsel might make an O’Connor application. Iconclude this based on the state of the law reviewed above. The likelihood of this risk materializing would have depended on several factors. First, there is the nature of the grievor’s involvementin any case going to trial and whether the grievor’s evidence might be necessary for the prosecution.

This is an aspect of the risk thatcould be mitigated by ensuring that, wherever possible, there would be available corroborating or alternative witnesses available. Second,there is the nature of the charge faced by the accused and more significantly the nature of any exculpatory explanation that might beopen to the defense. This risk is less manageable, except by altering the type of cases in which the grievor might become involved.

Thethird factor (assuming the Crown felt no obligation to bring forward these matters) is the likelihood that those responsible for theaccused’s defense would identify the fact that a Police Act investigation had occurred. These three elements to the risk all concern the likelihood of an O’Connor application being made. Can it be said that, even if anapplication was made as a result of these factors materializing, that there remained any risk of significant records being produced and, asa result, the grievor’s testimony being challenged?

Again, in my view, and considering the totality of the evidence, I conclude that therewas some significant risk based on the wide discretion available to the Courts under the O’Connor procedures. In my assessment, the likelihood of an O’Connor motion being made depended less on any Police or Crown obligation to disclose thanon whether any information about the Police Act charges were, or might end up in, the hands of those charged with crime or their defensecounsel.

My assessment of that risk is that it was quite low until the grievor took steps of his own to seek public vindication of hisposition, which inevitably and significantly increased the chances of an O’Connor motion. I have reviewed the various allegations andcounter-allegations in making that assessment, but do not need to document them directly in these reasons. As the two-step process in an O’Connor motion makes clear, there are significant differences between the bringing of the motion,

satisfying the first step, and an ultimate finding of “true relevance”. Many of the restrictions Courts have discussed in declining to extend McNeil disclosure would also militate against disclosure on an O’Connor motion. However, once again, this would depend primarily on the degree of the grievor’s involvement in the case in question, and the nature of the charges against the accused. I do not find it to be a minimal or insignificant risk. This does not dictate what the response to the risk should be, which is addressed below.

Nonetheless, the allegations, including more particularly the investigation that surrounded those allegations, did create real testamentary risk and, as such, a real and legitimate issue the Police Service remained contractually entitled to address.

As I noted earlier, however, the cases also support the proposition that it is a risk that diminishes over time. [ 55 ] The question for a reviewing Court then turns on whether the Arbitrator’s analysis and conclusion above are reasonable or not. [ 56 ] The Supreme Court of Canada in Dunsmuir at para 47 indicated that: A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.

In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 57 ] Based on the excerpt above, I am satisfied that the Arbitrator’s Decision transparently and intelligibly explained the roles of the Police [Service or EPS], the Crown and the Court in an O’Connor application or procedure.

He was articulate in demonstrating that “there are significant differences between the bringing of the motion, satisfying the first step, and an ultimate finding of “true relevance.” [ 58 ] The Arbitrator in the present matter assessed “the likelihood of an O’Connor motion being made” and did not peremptorily determine that a Court faced with the O’Connor motion would definitively grant a final disclosure order in favour of an accused, based on the facts – and obviously limited evidence – of the case before him.

Put differently, the Arbitrator in his assessment did not assume the role of a superior court of criminal jurisdiction, and neither did he pretend to be a substitute for the Court. [ 59 ] Apparently, the likelihood or probability of whether a disclosure order could ultimately be made by the Court is well beyond the Arbitrator, as that decision could only be made by the superior court of record after due consideration of the nature of the charge, the role of the Grievor /police officer and the possible defences available to the accused person.

Both the Applicant and the Respondent were aware of these circumstantial or factorial limitations when they entered into the Process and Jurisdiction Agreement that required the Arbitrator to perform the assessment.

In blunt terms, the parties were both aware of the “speculative” nature of the Arbitrator’s responsibility when they invited the Arbitrator to hear the arbitration that required him to conduct a “testamentary risk” assessment . [ 60 ] Based on the “Agreed Facts” by both the Applicant and the Respondent that the conduct of the Grievor if established would attract grave consequence, as well as the fact that the arbitral duty and jurisdiction of the Arbitrator was to conduct an assessment of testamentary risk – not a substantive or actual O’Connor application that only a court of competent criminal jurisdiction can conduct – I am satisfied that the Arbitrator did not require the investigative file to perform his assessment task in this arbitration. [ 61 ] I am satisfied that the Arbitrator neither required the evidence of the Crown’s opinion – which, in any event, is not ultimately determinative of the relevance or disclosure of the investigation records – nor required the Grievor’s investigative file or investigation records before discharging his arbitral responsibility of assessing the “testamentary risk” in this case, where both parties have consensually presented him with an “Agreed Statement of Facts,” a Process and Jurisdiction Agreement, and a set of questions to be answered. [ 62 ] Accordingly, I conclude that the Arbitrator’s decision that, on the basis of “the state of the law” he had reviewed, there was a real “testamentary risk” that an accused could obtain records relating to the Grievor’s disciplinary investigation records through an O’Connor application to a superior court of competent criminal jurisdiction meets the requirements of a reasonableness standard of review. [ 63 ] Although I have concluded that the Arbitrator did not make findings of fact in the absence of material evidence and that his conclusion on the issue of testamentary risk is reasonable, the analysis does not terminate there. [ 64 ] Next, I will consider the second issue regarding the reasonableness of his decision to uphold the ongoing restrictions.

Issue 2. Did the Arbitrator err when he upheld the ongoing restrictions EPS imposed on the Grievor notwithstanding his finding that EPS was in technical (procedural) breach of the Collective Agreement? Position of the EPA [ 65 ] The Applicant submits that the outcome of the Arbitrator’s Decision, which upholds the restrictions imposed on the Grievor, is unreasonable. [ 66 ] The EPA argues that the Arbitrator’s decision creates an unreasonable distinction between (

i) police officers who had disciplinary charges against them withdrawn – i.e. never convicted – but remain a risk to prosecutions and indefinite career restrictions, and (ii) police officers who have actually been convicted of a disciplinary offence, but are able to obtain removal of the discipline records after five (5) years, pursuant to the Regulation , s 22.

[67] The Applicant contends that police officers who have never been convicted of any disciplinary offence should not end up in aworse position than those who have been convicted. The Applicant submits that even if the Respondent EPS has reasonable grounds toimpose the restrictions on the Grievor because of some perceived “testamentary risk,” the restrictions “must have a defined temporallimit that is [less] than the five (5) years under

section 22 of the Regulation.” [68] The EPA requests that this Court quash the Arbitrator’s ruling that upheld the restrictions on the Grievor and direct the matterback to a new arbitration, or confirm the temporal limit that is reasonable restrictions to be imposed on the Grievor. Position of the EPS [69] The Respondent argues that the Arbitrator was reasonable in his decision to uphold the restrictions on the Grievor, especiallygiven that the management of “testamentary risk” falls within the EPS’s operational rights to direct its workforce, as well itsorganizational needs and business interests.

It submits that the exercise of management rights should attract deference, as duly accordedto it by the Arbitrator.

The EPS contends it has a legitimate operational objective to ensure that the prosecution of criminal offences isnot “compromised, sidetracked or delayed, by a change of focus of the matter from the core issues into an exploration into disclosure ofinformation that calls the credibility and reliability of police evidence into question.” [70] The EPS notes that the Arbitrator directed in “Appendix ‘A’” to his Award that at the conclusion of the civil action filed bythe Grievor against the EPS, the risk and restrictions imposed must be revaluated; and that if the civil action does not go to trial, therestrictions must nevertheless be reviewed each year. [71] The Respondent further submits that it is inaccurate to assert that the discipline record of a police officer who is convicted ofa Police Act offence – and whose record is expunged after five years – is outside the reach of an O’Connor application for disclosure “ifthe evidentiary framework is out there”: Transcript, 85/25-40.

In other words, the expunged record of a convicted police officer is subjectto a disclosure order from the superior court in the same manner as the record of a withdrawn charge is prone to disclosure underO’Connor. Analysis and conclusion re: Issue 2 [72] In relation to this second issue, it is critical to note that the Arbitrator’s Reasons stated, inter alia, that: The evidence of [the Superintendent] is that limitations on where the grievor can work may last throughout his career.

This, in my view,fails to take account of what is realistically a risk that will diminish over time; if not as to the chance of it being raised, then at least, as tothe chance of success on a Step 2 O’Connor review. The law as it currently stands places no temporal limit on how far back anO’Connor application may reach... It is unfortunate that the position of a person who is convicted of a Police Act offence may, in fact, be better off than the person whosecharges were dismissed without a full hearing, given the Court’s

interpretation of the

Section 22 of the Police Service Regulation. Lawalso evolves over time. That too provides a reason why the grievor’s position, and the objective review of any continuing risk, and thelimits justified by any such risk, needs to be periodically re-evaluated rather than just left to be assessed only if the grievor seeks atransfer or promotion. Collectively, while I find during the second period that the Service had the contractual ability to protect against risk, it did so in a waythat violated the grievor’s collective agreement rights procedurally.

I find that he should have been told, from the outset, of the positionsfrom which he was restricted and any conditions thought necessary to mitigate any risk. It was unreasonable in the circumstances to leavehim guessing as to just when he might be accepted.

However, having said that, the grievor could have done more to secure an earlierresolution but did not due to his focus on getting back his former position... [Emphasis added]. [73] First, I am of the opinion that the argument of the Respondent that the expunged record of a convicted police officer remainssubject to a disclosure order of a superior trial court in the same manner as the record of a withdrawn charge is prone to disclosure underO’Connor, while accurate, misses the point about the impact of the restrictions on the Grievor’s career.

Obviously, the argument fails toaddress the factual reality that the ongoing restrictions, as imposed on the Grievor, invariably limit his career prospects on a potentiallyindefinite basis.

The evidence before the Arbitrator, and expressed in his reasons, was that the “limitations on where the grievor canwork may last throughout his career.” [74] In other words, while a convicted police officer whose discipline record is removed after the expiration of a period of fiveyears would no longer be subject to limitations career-wise, a police officer who has never been convicted, but had a charge withdrawnagainst him or her, would be subject to career limitations on a potentially indefinite basis.

That outcome – where an offender receives aless severe sanction or punishment than a blameless suspect – is disproportional, unjustifiable and unreasonable. [75] Secondly, the Arbitrator upheld the ongoing restrictions on the Grievor because the Police Act and the Regulation are silenton the record of a police officer where a disciplinary charge is withdrawn.

Section 22 of the Regulation deals with only those caseswhere a contravention or conviction has been established. [76] The absence of any explicit provision in the Regulation addressing the issue of “records of discipline” and related temporallimits where charges are withdrawn invites or demands the use of recognized principles of statutory

interpretation for the purpose ofdetermining the intention of the legislature in such circumstances. [77] In R v McIntosh, (SCC), [1995] 1 SCR 686 at paras 38-39, 178 NR 161, the majority of the Supreme Court

of Canada held that “the overriding principle governing the

interpretation of penal provisions is that ambiguity should be resolved in amanner most favourable to accused persons.” In the circumstances of the present matter, although the Grievor can no longer beappropriately described as an “accused” person – since the Police Act charges against him have been substantively withdrawn – theinterpretive principle outlined in McIntosh remains relevant and helpful. [78] Further, in Merk v International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771,2005 SCC 70 at para 27, [2005] 3 SCR 425, the Supreme Court endorsed the statutory

interpretation principle that legislation should beinterpreted in a manner that avoids anomalous results. The Court stated: [An anomalous argument]... invites rejection on the basis of irrationality, as described in R. Sullivan, Sullivan and Driedger on theConstruction of Statutes (4th ed. 2002), at p. 246: A variation on irrational distinction occurs when an

interpretation leads to an outcome in which persons deserving of better treatmentreceive worse treatment or vice versa. See also P.-A. Côté, The

Interpretation of Legislation in Canada (3rd ed. 2000), at pp. 451-52. In R. v. Wust, 2000 SCC 18 ,[2000] 1 S.C.R. 455, our Court declined to accept the

interpretation of a sentencing provision which “would reward the worst offenderand penalize the least offender” (para. 42). A comparable anomaly would arise here if a narrow view of “lawful authority” were adopted.[Emphasis added]. [79] These principles of statutory

interpretation apply to the

interpretation of regulations as well: Bristol-Myers Squibb Co vCanada (Attorney General), 2005 SCC 26 at paras 97-99, [2005] 1 SCR 533. [80] The Arbitrator’s Decision failed to reflect these established principles of statutory

interpretation. The Legislature that enactedthe Police Act regime could not have intended an anomalous or unfair result that imposes a more severe punishment for unprovendisciplinary infraction [in the form of indefinite restrictions], and favours proven commission of an offence with an absolute pardon[including, removal/destruction of record of discipline, and lack of placement restrictions] after a period of five years, pursuant to theRegulation, s 22. It is not enough for the Arbitrator to describe that kind of anomalous result as unfortunate.

That description is not aneffective remedy or solution; especially when the Arbitrator found that EPS breached the collective agreement rights of the Grievor“procedurally.” [81] The level of the risk that the Grievor poses to the EPS’s legitimate operations – based on the withdrawal of the chargesagainst him – does not justify the temporally indefinite restrictions imposed on him.

At the minimum, the officer who has not beenconvicted of any disciplinary offence – and against whom charges were either withdrawn or inconclusive – should be entitled to thebenefit of a restriction (as penalty) which is no more severe than that imposed on or meted out to a police officer who has been convictedof a disciplinary offence. [82] As discussed earlier in this judgment, the Supreme Court of Canada in Dunsmuir at para 47, indicated that apart from theexistence of justification, transparency and intelligibility within the decision-making process, “reasonableness [is] also concerned withwhether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”[Emphasis added]. [83] It is unreasonable for the Arbitrator to uphold a restriction that imposes a harsher penalty on an officer against whom chargeshas been withdrawn in comparison with a convicted officer.

Such a restriction constitutes an irrational penal consequence on the Grievor,given the provisions of the Police Act and Regulation in the context of the withdrawal of charges against the Grievor.

The upholding ofthe ongoing indefinite restrictions on the Grievor is both unjustifiable and unacceptable. [84] In addition, it strikes me as incompatible for the Arbitrator to find that the EPS “violated the grievor’s collective agreementrights procedurally” and still proceed to uphold the disproportional and indefinite restrictions, which the Respondent EPS imposed on theGrievor. [85] In the result, I find that the decision of the Arbitrator that upheld the indefinite restrictions on the Grievor’s career – andaccordingly resulted in the imposition of a more severe and disproportionate sanction or penalty in respect of withdrawn (or inconclusive)charges vis-à-vis established contraventions – does not fall within a range of outcomes that are acceptable and defensible in respect of thefacts and law in this matter.

Disposition [86] Notwithstanding my finding that the Arbitrator did not make findings of fact in the absence of material evidence and that hisdecision on the issue of testamentary risk is reasonable, this judicial review application must be granted in favour of the Applicant, EPA. [87] Consequently, the matter is remitted back to the Arbitrator for his reconsideration. The Arbitrator is directed to reconsider thismatter in a manner that accords with the referenced principles of statutory

interpretation, reflects proportional restrictions on theGrievor’s placement within the Edmonton Police Service, and provides a definitive temporal limit suitable to the factual circumstancesof the Grievor, in light of the withdrawal of the Police Act charges against him.

Heard on the 4 th day of November, 2015. Dated at the City of Edmonton, Alberta this 11 th day of December, 2015. E.J. Simpson J.C.Q.B.A. Appearances: Dan Scott Seveny Scott for the Applicant, Edmonton Police Association Roger Hofer, QC Jessica Thomson Neuman Thompson for the Respondent, Edmonton Police Service