Kozina v Knecht, 2019 ABQB 941

Court of Queen’s Bench of Alberta Citation: Kozina v Knecht, 2019 ABQB 941 Date: 20191209 Docket: 1803 07901 Registry: Edmonton Between: Kazimierz Kozina Applicant - and - Rod Knecht, Chief of the Edmonton Police Service, J. Kemp and J. Redlick and the Alberta Law Enforcement Review Board Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R.

Burrows _______________________________________________________ [ 1 ] Kazimierz Kozina seeks judicial review of a decision of the Law Enforcement Review Board rendered on January 8, 2018. [ 2 ] The LERB dismissed Mr. Kozina’s appeal from the decision of M. A. Binder, a retired Justice of this Court, who conducted a hearing into Mr.

Kozina’s complaint that three EPS officers, Constables Redlick, Kemp, and Offin, used unreasonable force in arresting him on February 11, 2010 (the “Disciplinary Hearing”). [ 3 ] The Disciplinary Hearing was held pursuant to the Police Act RSA 2000, c P-17 , s 45(3) on October 16, 2015, April 26, 27, 28, May 2 and June 1, 2, and 3, 2016. [ 4 ] By the time of the Disciplinary Hearing, Cst. Offin had resigned from the EPS and proceedings against him had been terminated.

[ 5 ] On July 18, 2016, Mr. Binder dismissed Mr. Kozina’s complaints against Cst. Redlick and Cst. Kemp (“the Constables”). [ 6 ] Mr. Kozina appealed from Mr. Binder’s decision to the LERB on July 27, 2016. [ 7 ] The LERB dismissed Mr. Kozina’s appeal on January 8, 2018. It summarized its 10-page decision as follows: The appellant was arrested by the respondent police officers and other officers. Force was used and the appellant suffered injuries. He complained that excessive force was used. The Chief charged the respondents with excessive use of force and a disciplinary hearing was held.

The Presiding Officer acquitted both respondents. On appeal, the appellant argued that the presenting officer who prosecuted the charges was biased, tainting the prosecution. He also argued that the acquittal was unreasonable, and that the matter should be returned for another hearing. The prosecution was not tainted and the acquittal was within the range of reasonable outcomes. The appeal is dismissed. [ 8 ] On April 19, 2018, Mr. Kozina filed an Originating Application seeking judicial review of the Board’s decision. The application was originally before me on March 29, 2019.

At that hearing, all Counsel invited me to deal with the issue of Mr. Kozina’s standing to seek judicial review first – to decide that issue and then, if I decided that Mr. Kozina had standing, to hear further submissions on the merits of the application. [ 9 ] On May 13, 2019, I rendered my decision on standing: 2019 ABQB 355 . I concluded that Mr. Kozina has standing to seek judicial review of the impugned decision. In that decision I invited Counsel to arrange for the continuation of the hearing. On July 24, Mr. Engel’s office contacted mine to make those arrangements.

The hearing continued on October 4, 2019. [ 10 ] I received written and oral submissions from Counsel for Mr. Kozina, Mr. Engel, Counsel for the Constables, Ms. Harris, and Counsel for Mr. Knecht, Chief of the EPS, Mr. Cranna. Counsel for the ALERB, Mr. McDonough, attended the hearing but did not make written or oral submissions. Standard of Review [ 11 ] Mr.

Engel submitted that the applicable standard of review for issues of fact or intertwined fact and law in this case is the reasonableness standard, and for issues of law is correctness or, where the issue of law is within the expertise of the LERB, reasonableness. The position of the responding Counsel was that, if I exercise my discretion to review the LERB decision at all, the applicable standard is reasonableness. I perceive no real dispute as to the standard of review. I will apply the standard as described by Mr. Engel. Mr. Kozina’s Position [ 12 ] Mr. Engel has organized Mr.

Kozina’s challenges to the decision of the LERB into two main categories: 1. LERB Errors as to Reasonable Apprehension of Bias and Deficient Representation by Presenting Officer Cranna [ 13 ] Mr. Engel submitted to the LERB that there was a reasonable apprehension that the Presenting Officer, Mr. Cranna, held a bias against Mr. Kozina, and that the quality of Mr. Cranna’s presentation of the case against the Constables at the Disciplinary Hearing was deficient. The LERB rejected those submissions. [ 14 ] On this application Mr.

Engel submitted that the following LERB decisions, made in this general context, were unreasonable: a. decision refusing Mr. Engel’s request that the LERB receive, as additional evidence relevant to reasonable apprehension of bias, a November 5, 2015 letter from Mr. Engel to Mr. Cranna, requesting that Mr. Cranna remove himself the Presenting Officer; b. decision that there was no reasonable apprehension of bias on the part of Mr. Cranna against Mr. Kozina; c. decision that Mr. Cranna had presented the case in a reasonable manner. 2. Other Unreasonable LERB Decisions [ 15 ] Mr.

Kozina submitted the following decisions of the LERB were also unreasonable or otherwise in error: a. decision that there had been no breach of the rule in Browne v. Dunn in the Disciplinary Hearing. b. decision that Mr. Binder was not unreasonable or in error in refusing to allow Mr. Cranna to cross-examine Mr. Redlick on the circumstances of disciplinary proceedings taken against him in relation to the complaint of George Petropoulos regarding Cst. Redlick’s use of excessive force in an incident which occurred just short of two years after the arrest of Mr. Kozina. c. decision that Mr.

Binder was not unreasonable or in error in not considering evidence that the Constables had bullied and harassed, Mr. Huff, a former EPS officer who reported his concern about the conduct of the Constables in conducting the arrest of Mr. Kozina, in

assessing the credibility and reliability of the evidence of the Constables and former Cst. Offin. d. decision that Mr. Binder did not place undue weight on the demeanour of the witnesses in making his assessments as to the credibility and reliability of witnesses. Positions of the Chief of Police and the Constables [ 16 ] The Chief of Police and the Constables submitted that I should dismiss Mr.

Kozina’s application for judicial review on the basis that he has not exhausted all other remedies, in particular, that he has not sought leave to appeal to the Court of Appeal from the decision of the LERB pursuant to the Police Act , RSA 2000, c P-17 , s 18 and has not demonstrated that this statutory right of appeal is inadequate. [ 17 ] Counsel for the Chief of Police, Mr. Cranna, confined himself to that submission. He made no submissions concerning the merits of Mr. Engel’s submissions as to the decisions of the LERB listed above. [ 18 ] Counsel for the Constables, Ms.

Harris, made no submissions concerning the reasonable apprehension of bias or deficient representation issues raised by Mr. Engel. She took the position that each of the “Other Unreasonable LERB Decisions” identified by Mr. Engel were neither errors nor unreasonable, and provided submissions in support of that position. Discretion where remedies not exhausted [ 19 ] I have decided not to dispose of this application on the basis that Mr. Kozina did not pursue his statutory right to seek leave to appeal to the Court of Appeal.

As will appear, in my view there is no merit to any of the challenges to the LERB decision which Mr. Kozina has raised. I dismiss his application on that basis. I deliberately make no comment on the merits of the submission that Mr. Kozina should be refused judicial review because he has not exhausted his statutory remedies. Reasonable Apprehension of Bias [ 20 ] Prior to the Disciplinary Hearing, on November 5, 2015, Mr. Engel wrote to Mr. Cranna: . . .

I want to discuss a concern of mine that was raised after you advised me that you would be prosecuting Cst Redlick, Cst Offin and Cst Kemp at the disciplinary hearing for the assault of Mr. Kozina that took place on February 11, 2010. Although I am confident that you will conduct yourself in a non-biased manner, I am of the opinion that your position in the above noted LERB appeal, in which it was clear that you question Mr. Kozina’s credibility and assertions about police misconduct, raises the possibility of a reasonable apprehension of bias for the upcoming disciplinary hearing.

It is my position that you should remove yourself from the role of prosecutor for the Kozina disciplinary hearing, and new counsel should appear who have not had any involvement with the Kozina appeals before the LERB in order to avoid any potential perceived bias towards Mr Kozina at the hearing. Please respond. [ 21 ] I understand there was no response to this letter. Mr. Cranna did not remove himself. Mr. Engel took no further action. Mr. Cranna continued as the Presenting Officer at the Disciplinary Hearing. [ 22 ] As previously noted, Mr. Binder’s decision was issued on July 18, 2016. Mr.

Kozina gave notice of his appeal of that decision to the LERB on July 27, 2016. [ 23 ] On October 4, 2016, Mr. Kozina applied to the LERB for an order for the admission of further evidence on the appeal. One item of “further evidence” which he sought to have admitted was: A November 5, 2015 letter from the appellant’s counsel to the presenting officer alleging that the presenting officer was under a reasonable apprehension of bias (appeal ground 12(d)). This is the letter I quoted above. [ 24 ] On June 1, 2017, the LERB denied Mr. Kozina’s application. [ 25 ] Mr.

Kozina did not seek leave to appeal that decision to the Alberta Court of Appeal or otherwise challenge it. He did however raise the issue again at the hearing of the appeal by the LERB. The LERB decision records what occurred at the appeal hearing in that regard: The appellant [Mr. Kozina] raised the issue of reasonable apprehension of bias by the presenting officer at the disciplinary hearing.

The appellant sought to have a letter from his counsel admitted as evidence, which specifically requested that the presenting officer recuse himself given his involvement as counsel for the Chief in the appeal of a January 1, 2010 incident involving the appellant and respondent Redlick. The January 1, 2010 incident related to a search and seizure at the appellant’s parents’ home. This involved many of the same officers as the “buy and bust” described above. During this search, hunting rifles and drugs were seized and the appellant was charged. The appellant took the position that the entry and search was illegal.

The charges against the appellant were withdrawn by

the Crown. The Chief argued that it is improper for the Board to consider the appellant’s letter. The appellant argued that, if the Board’s ruling means that he cannot refer to the letter, he would not be able to make any arguments about reasonable apprehension of bias. The Board, in recess, reviewed its previous decision pertaining to additional evidence, in which the appellant requested to have counsel’s letter admitted as evidence.

In that decision, the Board denied the request to admit the letter on the basis that the letter was not relevant and could not reasonably impact the outcome of the disciplinary hearing. The Board ruled that the letter would not be admitted and the appellant did not pursue the bias allegation further. [ 26 ] The November 5, 2015 letter did not constitute evidence of bias. It showed that Mr. Engel was of the opinion that Mr. Cranna’s involvement “raised the possibility of a reasonable apprehension of bias”. At most, the letter was evidence that Mr.

Engel, though he did not himself apprehend bias, was of the opinion that such an apprehension was possible. Mr. Engel’s opinion on the point was not relevant. [ 27 ] The facts which presumably Mr. Engel had assessed in reaching the opinion that there was “a possibility of a reasonable apprehension of bias”, would, potentially, have been relevant evidence, but the letter was not evidence of those facts. Indeed, the LERB found that there was “no evidence of non-neutrality by the presenting officer” (LERB Decision, para. 17). [ 28 ] Mr. Engel did not challenge that finding on this application.

He challenged only the LERB’s decision not to admit the November 5, 2015 letter as additional evidence. Mr. Engel did not pursue the allegation of reasonable apprehension of bias further before the LERB after the letter was excluded. He abandoned the argument. The LERB did not decide whether or not there was a reasonable apprehension of bias because the argument that there was had been abandoned. [ 29 ] In the circumstances, the manner in which the LERB dealt with the issue of reasonable apprehension of bias was entirely reasonable and correct.

Deficient Representation by the Presenting Officer [ 30 ] One ground of appeal advance by Mr. Kozina before the LERB was that Mr. Cranna’s presentation of the case at the Disciplinary Hearing was deficient. The LERB rejected this ground of appeal: (LERB decision, para. 17 and 18) A presenting officer, as prosecutor, should introduce credible evidence and argument that would support the allegations being made against a police officer and should do so in a neutral manner, ensuring that all available legal proof of the facts is presented in a fair manner.

In this case, the presenting officer had previously been counsel for the Chief; to some this many have given, without inquiry, an odd appearance, but the Board finds no evidence of non-neutrality by the presenting officer. The Board must, in light of our civilian oversight mandate, determine whether the conduct of the presenting officer constituted an abuse of process and tainted the outcome of the disciplinary process in this case. The credibility and reliability of witnesses available to a presenting officer is key.

The Board concludes that the appellant, Huff and Furman contributed little to advance the alleged misconduct of excessive use of force by the respondents. No evidence was obtained from these witnesses that persuasively countered the evidence provided by the other officers, who testified about their observations of, and involvement in, the incident. Having carefully considered the matter, we see no basis on which to conclude that our civilian oversight mandate is in play here. The appellant in essence has argued that he does not like the manner in which the presenting officer prosecuted this matter.

He would have done things differently. This does not suffice to trigger our mandate. An appeal to the Board is not an occasion to re-try a matter, to litigate it again, and the appellant’s position here amounts to that. We see no taint, compromise or other actionable flaw in the proceeding below that merits our intervention on the basis argued by the appellant. [ 31 ] In his submissions on this application, Mr. Engel identified the following specific alleged deficiencies in Mr. Cranna’s presentation at the Disciplinary Hearing: a. he did not object on the basis of the rule in Browne v.

Dunn , to evidence offered by the Constables and former Cst. Offin as to their understanding at the time of Mr. Kozina’s arrest of his propensity for violence. b. he did not cross-examine the Constables as to their understanding at the time of Mr. Kozina’s arrest of his propensity for violence. c. he did not cross-examine the Constables “by using how [Mr. Kozina] was treated on January 1, 2010 in another matter involving police officers from the same division including Cst. Redlick”. d. he did not investigate whether the EPS had information about Mr.

Kozina’s propensity to violence which contradicted the Constables’ understanding on that point and did not call evidence to that effect. e. he did not seek to recall witnesses he had previously presented to rebut the evidence of the Constables regarding Mr. Kozina’s propensity for violence.

f. he conceded in argument at the Disciplinary Hearing, that if Mr. Binder preferred the Constables evidence to Mr. Kozina’s evidence, it would follow that the use of force by the Constables was reasonable. [ 32 ] Mr. Engel identified the same or similar alleged deficiencies in his submissions to the LERB. The Respondents to the appeal, in their submissions in response, countered each of them. The LERB summarized the submissions it received in paragraphs 11 to 16 of its decision and concluded, as noted, that there was no evidence of “non-neutrality” on Mr.

Cranna’s part, and that his conduct of the presentation did not constitute an abuse of process or taint the outcome of the disciplinary process. [ 33 ] As I interpret its decision, the LERB characterized Mr. Engel’s criticisms of Mr. Cranna’s conduct of the presentation as second guessing. I agree with that characterization. I see each of the alleged deficiencies as a choice Mr. Cranna was required to make in the midst of presenting the case against the Constables.

In my view, the choice he made in each case was within the range of reasonable choices as to how, in the circumstances, to best conduct the case. [ 34 ] There can be no doubt that it would have been possible for Mr. Cranna to have made the choices Mr. Engel submits he should have made in each instance. In my view, it is at least equally possible that Mr. Cranna made the correct choices in the circumstances in which each choice arose. The choices were Mr. Cranna’s to make. In my view, it has not been established that the choices Mr.

Cranna made rendered the quality of his presentation of the case at the Disciplinary Hearing in any way deficient. [ 35 ] In my view, the LERB’s decision on this point was reasonable and correct. Browne v. Dunn [ 36 ] Mr. Engel submits that the LERB erred in deciding that the rule in Browne v. Dunn had not be violated. [ 37 ] In the Disciplinary Hearing, Mr. Kozina was the first witness. Mr. Huff, a former EPS officer and Sgt. Furman were witnesses who testified that they had observed some of the events which were alleged to have constituted improper conduct by the Constables. [ 38 ] Cst. Redlick, Cst.

Kemp, and former Cst. Offin each testified that prior to the arrest of Mr. Kozina which gave rise to the proceedings, they had been told by members of the “street community” that Mr. Kozina had a reputation for violence and was feared. [ 39 ] Former Cst. Offin was called as a witness by Mr. Cranna. It was in response to Mr. Cranna’s questions that former Cst. Offin testified about Mr. Kozina’s reputation on the street. [ 40 ] Cst. Redlick was represented by Counsel, Mr. Danyluk, who, after the “prosecution witnesses” had given their evidence, elected not to call Cst.

Redlick because, in his view, the evidence of the “prosecution witnesses” did not prove the allegations against Cst. Redlick. Mr. Cranna, citing Real Estate Council of Alberta v. Henderson , 2007 ABCA 303 , took the position that Cst. Redlick was compellable and subject to examination and cross-examination by Mr. Cranna. Mr. Danyluk agreed. Mr. Cranna questioned Cst. Redlick. It was in that questioning that Cst. Redlick testified that, prior to the arrest incident, members of the community had informed him that Mr. Kozina was violent and was much feared. [ 41 ] Cst. Kemp, who was represented by Ms.

Harris who called him to testify at the Disciplinary Hearing, testified to the same effect in response to Ms. Harris’ questions. [ 42 ] Mr. Engel submitted before the LERB that it was a violation of the rule in Brown v. Dunn for the Constables and former Cst. Offin to testify as to Mr. Kozina’s violent propensities when Mr. Kozina had not been asked about that topic when he testified prior to them. [ 43 ] The LERB concluded that the Browne v Dunn rule had no impact on the Disciplinary Hearing decision. [ 44 ] The “rule” in Browne v.

Dunn requires that, as a matter of fairness, a party who intends to impeach an opponent’s witness must, during their cross-examination of the witness proposed to be impeached, direct the witness’ attention to the matter upon which the anticipated attempt to impeach will be based. The consequence for not complying with the rule depends upon the circumstances of the case.

Usually an uncured failure to respect the rule reduces the weight the trier of fact will attach to the impeaching evidence. [ 45 ] It is not clear that, technically, the situation here was one to which the rule applied, at least in the case of the evidence of former Cst. Offen and Cst. Redlick. Neither of them was called to impeach the evidence of Mr. Kozina. They were both called by Presenting Counsel who had also called Mr. Kozina.

But, in my view, that technical distinction would not justify ignoring the fairness principle upon which the rule is founded. [ 46 ] It is more significant, in my view, that the evidence in question was not evidence of anything Mr. Kozina witnessed. It was evidence of what members of the community had told the Constables. The point, at most, was that given the information the Constables had about Mr. Kozina’s reputation, whether the reputation was deserved or not, it would be appropriate for them to approach the task of arresting him with care. Mr.

Kozina’s evidence on the point, if he had been asked whether such a reputation was justified, would not change anything. The evidence did not relate to the point on which Mr. Kozina’s evidence and the evidence of the Constables was in conflict. The capacity of the evidence to impeach Mr. Kozina’s evidence was negligible. [ 47 ] In my view, the situation was not one to which the Browne v. Dunn rule applied. The LERB’s conclusion on the Browne v. Dunn issue was reasonable and correct. The Petropoulos Incident

[ 48 ] At the Disciplinary Hearing, during the examination of Cst. Redlick, Mr. Cranna referenced the previous evidence of Mr. Huff and Sgt. Furman about “a pattern of behaviour from you [Cst. Redlick] with respect to the use of force.” He noted that Mr. Huff and Sgt. Furman, in their testimony, had “. . . expressed concerns about your willingness to use force in a number of different occasions over a longer period of time.” [ 49 ] Mr. Danyluk, Mr. Redlick’s counsel, objected to Mr.

Cranna’s anticipated questions on that subject on the basis that there had not been any disclosure about previous use of force by Cst. Redlick. Mr. Danyluk noted that neither Mr. Huff nor Sgt. Furman had referenced any specific incident of prior use of force by Cst. Redlick and suggested that Mr. Cranna should put a specific instance to him rather than ask about the prior use of force generally. Mr. Cranna then asked Mr. Redlick about the “Petropoulos incident.” Mr. Danyluk objected that the Petropoulos incident occurred after the Kozina incident so it could not have the basis of Mr. Huff’s or Sgt.

Furman’s concerns about Cst. Redlick’s willingness to use force. [ 50 ] Mr. Binder directed that Cst. Redlick answer as to whether the concerns expressed by Huff and Furman had any validity. Cst. Redlick answered that they did not. [ 51 ] Mr. Binder further ruled that Mr. Cranna could not ask Cst. Redlick about a use of force that happened after the Kozina incident. Mr. Binder said, “Well, something that happened after I don’t think is relevant to what we’re dealing with.” [Transcript of Disciplinary Hearing, June 2, 2016, Vol. VII, page 96 to 101] [ 52 ] There can be no doubt that if Mr.

Cranna’s purpose in asking Cst. Redlick about the Petropoulos matter in cross-examination was to demonstrate that there was a basis for Mr. Huff and Sgt. Furman’s concerns about Cst. Redlick’s willingness to use force prior to the Kozina incident, the Petropoulos incident was irrelevant. And concerns Mr. Huff and Sgt. Furman had at the time of the Kozina incident could not have been founded on an incident that did not happen until two years after the Kozina incident. [ 53 ] A generous reading of the portion of the Disciplinary Hearing transcript above cited, however, could suggest that Mr.

Cranna’s purpose in asking Cst. Redlick about the Petropoulos matter may have been to show that Cst. Redlick had a propensity to use excessive force in conducting an arrest or dealing with people he had arrested. Arguably, that the Petropoulos incident happened after the Kozina incident would not itself render this propensity or character evidence irrelevant. [ 54 ] However, if that was Mr.

Cranna’s purpose in referring to the Petropoulos incident, then the question of whether this form of character or similar fact evidence was admissible in this type of proceeding or at all should have been raised and determined before the evidence was received. That admissibility issue was not raised. It is not clear in the transcript that anyone, particularly Mr. Binder, recognized that Mr. Cranna’s purpose was to offer propensity evidence, if, indeed, that was his purpose. Accordingly, Mr.

Binder made no decision on the point. [ 55 ] Therefore, there was no decision as to the admissibility of the character or propensity evidence for the LERB to consider on the appeal. Mr. Binder ruled only that the evidence of the Petropoulos incident was irrelevant to existence or reasonableness of Huff and Furman’s concerns about Cst. Redlick’s willingness to use force.

That ruling was obviously reasonable. [ 56 ] The LERB’s conclusion was, “We do not consider there is any basis here on which we could find an error of law, certainly not an error that would render the outcome unreasonable.” (para. 25) In my view, that conclusion was reasonable and correct. Credibility Assessment – Bullying and Harassment of Mr. Huff [ 57 ] Mr. Engel submits that there was evidence before Mr. Binder that Mr. Huff had been bullied and harassed by Cst. Redlick and Cst. Kemp following Mr. Huff reporting his concerns about their use of force in the arrest of Mr. Kozina to his supervisor. Mr.

Engel submits that Mr. Binder ought to have taken this bullying and harassment into account in assessing the credibility and reliability of the Constables, that he failed to do so, and that his acceptance of the evidence of the Constables and rejection of the evidence of Mr. Huff was therefore unreasonable. The LERB dismissed that submission. [ 58 ] The last subject Mr. Cranna addressed in his examination of Mr. Huff was the relationship between Mr. Huff and Cst. Redlick. (Disciplinary Hearing Transcript, April 27, 2016, Vol.

III, p. 121.) [ 59 ] His first question was: Did you have any discussions directly with Constable Redlick about your views of his policing style or the things that you had seen? [ 60 ] Mr. Huff’s answer was neither responsive nor focussed. He answered: You know, we had – obviously, and I’m sure the crew would know, I think probably everybody knew right from the get go that we were completely different. Different values, I guess, or different ways of – personalities, different policing styles.

And most of the times that anything would get brought up, it would just get fluffed off, or we’d just be, like, yeah, whatever. Right. Like, crack a joke about the next time they do a buy and bust, and be, like oh, let’s stay out of the PSB this time. You know, the only jab I was going to get in there. And like I said before, you know, I don’t want to use the word intimidated by it, but, you know, we’re all here. We all have experience in the law enforcement

part is that I knew that it was getting to a certain degree to where it wasn’t any – it wasn’t about doing the right thing anywhere. It was about doing the best thing. Because I didn’t expect Kabyn [his supervisor] – I never asked Kabyn to go tell everybody and blow this place up and let’s go and hang Redlick and Kemp and these guys by ropes. I was drawing concerns to Kabyn as I have with other bosses in my ten years to be saying there’s some issues going on here. Like, the use of force is getting dramatically increasing each time I’m with Redlick. And before any other incidents, even with Kemp and Offin.

I didn’t see those guys, you know, performing all these other stuff. It was Redlick. And that I was in a position, like I said before, as a senior guy in the crew, I had a family like everybody else did. I had kids

like everybody else did. And I felt like my career was going seven to eight years back because now there I am spending my time notbuilding on my career. Here I am spending my time figuring out how I’m going to cover for these people. Why is everybody’s that’sgetting brought in injured? It wasn’t just a daily event. And even after the assault, it still continued. And at the same time, it’s easy to say or perceive that, oh, yeah, I can stand up as a constable and take three or four guys to a backroom orfor coffee and say, he, I don’t like what you guys are doing out there and your use of force.

Could be an attempt if there was arelationship between us, but at the same time, that’s also a supervisor’s job. [61] Mr. Cranna followed up with several further questions. Mr. Huff’s answers were similarly unresponsive and unfocused. Inmy view, none of Mr. Huff’s answers to Mr. Cranna’s questions constitute evidence that either Cst. Redlick or Cst. Kemp bullied andharassed him. The closest Mr. Huff got to any suggestion of that nature, in his answers to Mr.

Cranna’s questions, was in the midst of alengthy answer to the question, “. . . do you harbour any personal animus or hostility towards these respondents?” (Vol. III, page 126). Mr. Huff’s answer included this: (Vol III, Page 127) And like you were saying, I mean, even after the Kozina assault, it wasn’t dealt with, and the whole Redlick matter now turned into himcontinuing his street justice. And he knew that I didn’t like it, and he’d spend half the time doing that and the other half would becoming after me personally. [62] Mr. Binder himself asked Mr.

Huff for clarification: At the end of your testimony you indicated that Constable Redlick was coming after you. . . . Can you explain that: [63] Mr. Huff responded: Yeah. I became – like, I was trying to explain that once there was that distinguishing between us not wanting to be involved in buy andbusts anymore, we were kind of retracting from the team. He took offence to that. And my partner and I were working on some otherinitiatives in our areas that wasn’t to his liking.

So it became more of a personal attack where we were bullied and harassed and, youknow, he would be – for example, what started right after is he would come on parade in the mornings and pull his gun out and put itright in front of me on my table and say, there you go, Huff, go kill yourself. And it was funny on the first day, second day, third day, but it became a repetitive with him doing these jokes. And more from basically2012 until now, you know, it became a lot of working on other units.

And anybody that associated to me was either sexually harassedthrough emails or bad weapons pulled on them and treated like crap to where they’re in my office in tears crying. And, you know, afterthe buy and bust, you know, we were now the Bert and Ernie homosexual teammates. And it wasn’t that I couldn’t take the blow, it was repetitively every single day. He spent more time focused on me than anything else. I’d get a letter from a member of the China Town area saying what kind of work we did. And rather, than, hey, good job, buddy, it was,you know, you deal with those yellow hands, you’re a loser.

And then on the radio every time telling me to get another letter every timeI was trying to go off on a call. It was just repetitive. I couldn’t go anywhere or do anything without him doing something. [64] The relationship between Mr. Huff and the Constables, particularly Cst. Redlick, was explored in the cross-examination ofMr. Huff by Ms. Harris and by Mr. Danyluk. That it was an extremely difficult and distressing relationship is clear. It is far from clear,however, that Mr. Huff’s perception, as stated in his answer to Mr. Binder, that Cst. Redlick harassed and bullied him was justified evenon Mr.

Huff’s own description of that conduct and his response to it. [65] In my view, given Mr. Huff’s unresponsive and unfocused answers, and given the evidence of the severe deterioration of therelationship between Mr. Huff and Cst. Redlick, that there was bullying and harassment of Mr. Huff by Cst. Redlick was not established. [66] Further, in my view, whether or not there was such bullying or harassment was very much a “side” issue. Mr. Cranna did notraise it in his cross-examination of Cst. Redlick or refer to it in his final submissions. This, in my view, was understandable andappropriate, given the state of Mr.

Huff’s evidence on the point as indicated above. For Mr. Cranna, it appears the more significantconcern was to counter the proposition that the animus between Mr. Huff and Cst. Redlick had coloured Mr. Huff’s evidence. [67] In my view, that Mr. Binder did not mention bullying and harassment of Mr. Huff in his assessment of the credibility andreliability of the evidence of Cst. Redlick or Cst. Kemp, was, in these circumstances, entirely reasonable. [68] In my view, the conclusion of the LERB on this point was reasonable and correct. Credibility Assessment – Witness Demeanour [69] Mr. Engel submits that Mr.

Binder placed inappropriate weight on the demeanour of the witnesses who testified before him inassessing their credibility and reliability. The LERB rejected that submission. Mr. Engel submits the LERB erred in doing so. [70] There is no dispute that Mr. Binder’s task was to determine which of two versions of events presented in the evidence mainly,on one hand, of Mr. Kozina, Mr. Huff and to a limited extent, Sgt. Furman and, on the other hand, by Cst. Redlick and Cst. Kemp, wastrue. It is evident from his written decision that he was fully cognizant of the nature and difficulty of that task.

He instructed himselfappropriately as to the nature of the task in quoting from the decision of Bastarache and Abella J. of the Supreme Court of Canada in R v.Gagnon 2006 SCC 17 at para 20: Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is whythis Court decided, most recently in H.L., [H.L. v.

Canada (Attorney General) 2005 SCC 25 , [2005] 1 SCR 401] that in theabsence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

[71] A trier of fact is expected to consider the demeanour of the witnesses in assessing their credibility. However, placing toomuch reliance on that factor, or relying on it exclusively, is inappropriate. These points are not in dispute. They were mentioned insubmissions of counsel before Mr. Binder in this case. Ms.

Harris, in her submissions, quoted the following passage from Faryna v.Chorny (BC CA), [1952] 2 DLR 354 at 357: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried the conviction of truth. [72] In my view, there is simply no basis for concluding that in his assessments of the credibility and reliability of the witnesseswho testified before him, Mr. Binder failed to heed that principle.

A fair reading of his reasons for decision cannot yield that conclusion. [73] The LERB’s decision to reject this submission was reasonable and correct. [74] I note that in the last paragraph of his written brief, Mr. Engel submits that LERB applied the incorrect standard of review inassessing Mr. Binder’s treatment of “demeanor and conflicting evidence”. He submits the LERB applied a reasonableness standard tothe assessment of an alleged error of law and in doing made an error of law. I need not determine whether or not there is any merit to thatsubmission, because in my view, Mr.

Binder made no error of law in his assessment of witness credibility. His decision satisfies thehigher standard. Conclusion [75] I dismiss Mr. Kozina’s application. [76] If Counsel wish to address costs, they may contact my office by January 20, 2020 to arrange to do so. Otherwise, I award oneset of costs on the appropriate column to the Respondent Knecht, and a second set of costs on the appropriate column to the RespondentsRedlick and Kemp. I assume that the LERB, which was only technically a Respondent, would not seek costs. Heard on the 4th day of October, 2019.

Dated at the City of Edmonton, Alberta this 09th day of December, 2019. B.R. Burrows J.C.Q.B.A. Appearances: Tom Engel for the Applicant Lorena K. Harris for J. Kemp and J. Redlick Derek Cranna for Rod Knecht, Chief of the Edmonton Police Service Sean McDonough for the Alberta Law Enforcement Review Board