Partington v Edmonton Police Service, 2021 ABQB 387

Court of Queen’s Bench of Alberta Citation: Partington v Edmonton Police Service, 2021 ABQB 387 Date: 20210517 Docket: 2003 16112 Registry: Edmonton Between: Cst. Michael Partington (No. 3858) Applicant - and - The Chief of the Edmonton Police Service - and – The Edmonton Police Commission Respondents _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.A. Yungwirth _______________________________________________________ Table of Contents Introduction . 2 Statutory Framework . 2 Facts . 3 Decision of the Edmonton Police Commission . 5

Issues Raised by Cst. Partington . 6 Standard of Review .. 6 Analysis . 7 Issue 1: Was it unreasonable for the EPC to uphold the Chief’s conclusions that there existed “exceptional circumstances justifying Cst. Partington’s suspension without pay? . 7 Position of Cst. Partington . 7 Position of the Chief of Police . 8 Conclusion on Issue 1 . 9 Issue 2: Did the EPC fetter its discretion by applying a test that would always be met? . 10 Position of Cst.

Partington . 10 Position of the Chief of Police . 11 Conclusion on Issue 2 . 12 Issue 3: Did the EPC fail to consider the merits of the Chief’s deceit allegations? . 13 Position of Cst. Partington . 13 Position of the Chief of Police . 13 Conclusion on Issue 3 . 13 Issue 4: Did the EPC take unreasonable and irrelevant considerations into account? . 14 Position of Cst. Partington . 14 Position of the Chief of Police . 14 Conclusion on Issue 4 . 15 Disposition . 16 Introduction [ 1 ] This is an application by Cst. Michael Partington [Applicant or Cst.

Partington] for judicial review of a decision dated September 17, 2020 made by the Edmonton Police Commission [EPC]. [ 2 ] At issue is whether it was reasonable for the Chief of Police to have relieved Cst. Partington from duty without pay as a result of circumstances that occurred on August 27, 2019 and the report that followed. The EPC’s confirmation of that decision is the subject of this judicial review. Statutory Framework [ 3 ] The police discipline process is governed by the Police Act , RSA 2000 c P-17 [ Police Act or Act ] and its associated regulations.

Section 5 of the Police Service Regulation , 356/90 [ PSR ] sets out the conduct that may constitute misconduct by a police officer. [ 4 ]

Section 8 of the PSR gives the power to the Chief of Police to relieve an officer from duty if the Chief, on reasonable grounds, suspects the officer has contravened

section 5. The overall scheme allows the Chief, between the time that an allegation of misconduct is made against an officer and the disciplinary hearing on that allegation, to allow the officer to continue with their duties, to assign them other duties, to relieve an officer with pay or to relieve an officer without pay. [ 5 ] Subsection 8(10) states: Where the chief of police is of the opinion that exceptional circumstances exist respecting the alleged contravention of

section 5 by a police officer, the chief of policy may relieve the police officer from duty without pay. [ 6 ] Pursuant to PSR , s 8(11), if a chief of police does relieve a police officer from duty without pay, the chief of police must have that direction confirmed by the EPC within 30 days. [ 7 ] The role of the EPC is to review the decision of the Chief of Police to determine whether it was reasonable for the Chief to

form the opinion that exceptional circumstances exist justifying the relief from duty without pay. The EPC’s jurisdiction is limited to reviewing the without pay aspect of the relief from duty. It has no jurisdiction to review the decision of the Chief of Police to relieve an officer from duty with pay: Kube v Edmonton (Police Service) , 2014 ABQB 126 at paras 50-60 [ Kube ]. [ 8 ] In assessing whether exceptional circumstances exist, the non-exhaustive list of factors set out in Re Bigelow and Taber Police Service , LERB 041-98 at paras 8-9 [ Bigelow ] are to be considered.

Those factors are: 1. an allegation of “serious criminal conduct (i.e., culpable homicide; armed robbery; trafficking in narcotics; kidnapping; aggravated assault; etc.).” A single allegation of serious criminal conduct “may alone constitute ‘exceptional circumstances’”; 2. multiple allegations of criminal conduct which combined “may constitute exceptional circumstances”; 3. alleged misconduct that may reasonably damage the Police Service’s reputation or administration were the officer not relieved from duty without pay; 4. alleged misconduct of such a nature that accountability or discipline within the Service may reasonably be undermined were the officer not relieved from duty without pay; 5. alleged misconduct of such a nature that the public interest may suffer or a loss of public confidence in the Service may result were the officer not relieved from duty without pay.

Facts [ 9 ] On August 27, 2019, Cst. Partington responded to an incident in progress. An individual, Mr. McLeod, had fled from another officer, Cst. McCargar, after being advised that he was being detained for a bylaw offence due to riding his bicycle on the sidewalk with no bell or horn. Cst. McCargar pursued Mr. McLeod, eventually catching up to him and pulling him from his bicycle onto the ground. [ 10 ] According to Cst. McCargar’s narrative report, Mr. McLeod tucked his hands into his waist when he was initially pulled to the ground, causing Cst. McCargar to believe he could have been reaching for a weapon.

The report indicates that Cst. McCargar, while giving clear verbal direction, issued 3-4 closed fist head stuns to Mr. McLeod. After Mr. McLeod did not comply, Cst. McCargar issued 2 more head stuns to the back of his head. [ 11 ] The report indicates that Mr. McLeod gave up and placed his arms out to his side. Cst. McCargar waited for additional patrol members to arrive so that he could safely handcuff Mr. McLeod. [ 12 ] Cst. Partington was the next officer to arrive on scene and he assisted Cst. McCargar with the arrest of Mr.

McLeod. [ 13 ] Civilian witnesses in the area observed the arrest and took cell phone video clips. These video clips were provided to Edmonton Police Service (EPS) on August 28, 2019. Both clips have been reviewed by the Court. [ 14 ] The first video clip shows Mr. McLeod face down on the ground with his hands behind his back, with Cst. McCargar kneeling next to him. Mr. McLeod does not appear to be moving or struggling. Cst. Partington walks toward them and then suddenly lunges forward and delivers a forceful knee drop (also referred to as a knee strike) with his right knee to Mr.

McLeod’s upper back area, causing Mr. McLeod to cry out in pain. Cst. Partington maintains his position with his knee on Mr. McLeod’s back while Cst. McCargar applies handcuffs. [ 15 ] The second video clip starts after the first and depicts Mr. McLeod still on the ground, facedown and handcuffed. Both officers pull Mr. McLeod to his feet and pull or drag him to the nearby police vehicle. [ 16 ] On September 2, 2019, Cst. Partington submitted a police report regarding the incident. In the second paragraph of his report, Cst. Partington stated: 2. Upon arrival, I observed Cst.

MCCARGAR actively struggling with a male suspect later identified as MCLEOD, Elliot on the ground. MCLEOD was not at the time in handcuffs and was actively struggling against Cst. MCCARGAR. I then placed my knee between MCLEOD’S shoulder blades to pin him to the ground and assisted in placing him in handcuffs. Myself and Cst. MCCARGAR then placed MCLEOD into my marked patrol vehicle. [ 17 ] After receiving the video footage, EPS opened an investigation a short time later.

Following the investigation by the Professional Standards Branch of EPS (which appears to have been completed by March 16, 2020), the matter was forwarded to the Alberta Crown Prosecution Service on March 31, 2020 for review and an opinion on whether a criminal charge was warranted. [ 18 ] On June 16, 2020, Cst. Partington was arrested and charged with one count of assault contrary to s. 266 of the Criminal Code .

That same day, he was also served with a Notice of Relief from Duty Without Pay (Notice), signed by the Chief of Police. [ 19 ] On page 2 of the Notice, the following is indicated: THE REASON FOR YOUR RELIEF FROM DUTY WITHOUT PAY is that I am of the opinion that exceptional circumstances exist relative to the aforementioned alleged contraventions of the Police Service Regulation , that, individually and collectively, justify your relief from duty without pay.

Specifically, I am of the opinion that: [1] I have reasonable grounds to believe that you made misleading and inaccurate notes in your narrative report in an attempt to conceal your assaultive misconduct towards Mr. McLeod. The EPS and the public are entitled to expect that police officers will conduct

themselves professionally, and not make false, misleading or inaccurate statements to hide their misconduct. Your actions undermine the integrity of the Edmonton Police Service and its members. The police service and members of the public have a right to be served by honest and trustworthy police officers, your breach of trust is a fundamental violation of the faith and trust the Edmonton Police Service has in you as an employee. [2] I have reason to believe that during the course of your duties you unlawfully and without justification used force against Mr.

McLeod when force was not appropriate or necessitated in the circumstances. In these circumstances, the Edmonton Police Service may reasonably suffer in its reputation, and a loss of public confidence in the Edmonton Police Service may reasonably occur, if you are not relieved from duty without pay. [3] There is strong evidence that you committed these offences, including audio video recordings of your interactions with Mr.

McLeod. [4] In light of the misconducts, I am of the opinion that internal accountability of discipline within the EPS may reasonably be undermined, and a loss of public confidence in the EPS may occur, if you are not relieved from duty without pay. [ 20 ] After the EPC received written submissions from the Chief of Police and Cst. Partington, an in-person hearing was held on July 13, 2020. At that hearing, all Commissioners were in attendance and Counsel for the Chief of Police and Counsel for Cst.

Partington made oral submissions and answered questions. [ 21 ] On July 14, 2020, the EPC notified the parties that it had confirmed the Chief’s direction that Cst. Partington be relieved from duty without pay [EPC’s Decision]]. Decision of the Edmonton Police Commission [ 22 ] The EPC was provided with submissions from the Chief of Police and Submissions from Cst. Partington. The submissions from the Chief included the Notice, the Service Record

Summary for Cst. Partington, the Professional Standards Branch Criminal Investigative Report, two videos of the incident taken by concerned citizens, Narrative Report of Cst. Partington, Document confirming no notes having been taken by Cst. Partington, Transcripts of interviews with Tyler Eaglespeaker (who recorded the incident) and Jason Grimm (father of Tyler Eaglespeaker), Narrative Report of Cst. McCargar, confirmation of the charge against Cst.

Partington, EPS Internal Notification regarding the charge, and copies of three cases and the Police Service Regulation. [ 23 ] The EPC confirmed that they must review the Chief’s decision on a reasonableness standard, both as to outcome and the reasoning process that led to that outcome. (EPC’s Decision, paras 18-19) [ 24 ] The EPC confirmed that the non-exhaustive list of factors in Bigelow are to be considered when assessing whether exceptional circumstances exist to justify relieving an officer from duty without pay (EPC’s Decision, para 21). [ 25 ] The EPC reviewed the reasons relied on by the Chief in the Notice, and noted the investigation by the Professional Standards Branch and review by the Alberta Crown Prosecution Service.

The EPC considered the submissions of Cst. Partington that assault does not constitute “serious criminal conduct” as outlined in Bigelow . They also considered Cst. Partington’s challenge to the evidence on the deceit allegation (EPC’s Decision, paras 24-28). [ 26 ] After reviewing the Bigelow factors relied on by the Chief (EPC’s Decision, paras 30-31), the EPC concluded that the evidence supported the Chief’s opinion that exceptional circumstances exist in this case and that it was reasonable for the Chief to conclude that exceptional circumstances exist when all of the factors are considered in totality.

The EPC confirmed the direction of the Chief, that Cst. Partington be relieved from duty without pay. Issues Raised by Cst. Partington [ 27 ] Cst. Partington submits that the EPC erred and/or otherwise rendered an unreasonable decision by: [1] upholding the Chief’s conclusions that there existed “exceptional circumstances justifying Cst. Partington’s suspension without pay; [2] fettering its discretion by applying a test that would always be met; [3] failing to consider the merits of the Chief’s deceit allegations; [4] taking unreasonable and irrelevant considerations into account.

Standard of Review [ 28 ] For issues (1), (3) and (4), the parties agree that the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ]. I accept both parties’ concession that the presumptive reasonableness review standard applies to each of the issues here: Wilson v Atomic Energy of Canada Ltd , 2016 SCC 29 at para 77 . [ 29 ] For issue (2), Cst. Partington argues that fettering of discretion is a procedural fairness concern and that there may be no traditional standard of review.

He argues that reviewing courts’ approaches have varied from applying reasonableness standard to applying the correctness standard or even reviewing this particular issue “outside the reasonableness/correctness dichotomy”: Delta Air Lines Inc v Lukács , 2018 SCC 2 [ Delta Air Lines ]; Canadian Pacific Railway Company v Canada (Attorney General) , 2018 FCA 69 at paras 32-56 ; Cenovus TL ULC v Alberta (Energy ), 2019 ABQB 301 .

[30] I agree that the issue of fettering of discretion can be mercurial in nature and has always raised required additionalconsideration in terms of applicable standard of review. This was acknowledged and clarified by our Court of Appeal in Equs Rea Ltd vAlberta (Utilities Commission), 2019 ABCA 277 at para 19, where the Court stated: The fettering of discretion has traditionally been considered an automatic ground for setting aside administrative decisions: Maple LodgeFarms v Government of Canada, (SCC), [1982] 2 SCR 2, 137 DLR (3d) 558.

There is some uncertainty as to where theconcept fits in the correctness and reasonableness framework established by the Supreme Court in Dunsmuir v New Brunswick, 2008SCC 9 and subsequent cases: Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA 299 at paras 20-24; Calandrini vCanada (Attorney General), 2018 FC 52 at para 100-101. In Stemijon, Stratas JA concluded that “a decision that is the product of afettered discretion must per se be unreasonable”: para 24.

Other courts have suggested that “fettering of discretion” is an aspect ofprocedural fairness, and therefore no curial deference is owed: see eg Halfway River First Nation v British Columbia (Ministry ofForests), 1999 BCCA 470 at para 58; [Cidex Developments Ltd v Calgary (City), 2018 ABQB 519] at para 30.

Under either analysis, adecision that is a product of fettered discretion is a reviewable error. [31] I recognize that procedural fairness is a legal concept that ensures “administrative decisions are made using a fair, impartial,open, and transparent process that provides those affected by the decision an opportunity to know the case against them and to fully putforth their views and the evidence they wish the decision-making body to consider”: Buryn v Alberta (Minister of Municipal Affairs),2017 ABQB 613 at para 31. [32] Consequently, an alleged fetter of discretion that occurs after parties have been fully heard can no longer be strictlycharacterized as a procedural fairness issue.

Instead, where an administrative decision-maker applies a legal test (such as the Bigelowfactors) to the facts of the case before it, the substantive question of mixed law and facts arises such that the presumptive reasonablenessreview standard becomes applicable. [33] Therefore, I conclude that in this case, the reasonableness standard applies to Issue 2 as well. Analysis Issue 1: Was it unreasonable for the EPC to uphold the Chief’s conclusions that thereexisted “exceptional circumstances justifying Cst. Partington’s suspension withoutpay? Position of Cst.

Partington [34] The factors relied on by the Chief and relied on by the EPC are not exceptional and exist in most, if not all, situations wherean officer is accused of misconduct. “Exceptional circumstances” must fall outside the norm and must be in relation to the allegedcontravention of s 5 of the PSR. [35] The Bigelow framework was not properly applied by the Chief.

Merely “invoking magic words” about damage to reputationor loss of public confidence is not sufficient. [36] A charge of assault simpliciter, even when combined with “factors that normally exist where there is an assault charge,”cannot constitute “exceptional circumstances.” [37] Any instance of a police officer being charged with an offence, criminal or otherwise, creates a risk that loss of reputation orpublic confidence may occur.

The mere potential of damage to EPS’ reputation, its relationship, or its internal accountability cannotsupport a finding of “exceptional circumstances.” The EPC must apply a higher standard than that harm “may occur.” [38] Other markers of the EPC being unreasonable are: • The relief without pay option must be necessary to prevent the potential harm from occurring. The EPC should have required theChief to provide evidence of the nexus.

The EPC did not consider if the interests of the EPS would be sufficiently protected if Cst.Partington was simply relieved of duty; • Though the incident occurred on August 27, 2019 and the allegedly deceitful statement was provided in early September 2019,Cst. Partington was not suspended from duty until June 16, 2020.

Any damage to EPS’ internal and external relationships would havestarted occurring in August of 2019 and the only meaningful thing that changed between August 27, 2019 and June 16, 2020 was Cst.Partington being charged with assault; • The Chief made factual errors, specifically an allegation that Cst. Partington’s knee strike was to Mr. McLeod’s neck or head(when it was to the upper back). A strike to the upper back is significantly less serious than a strike to the head.

The EPC should havebeen alive to this error. [39] When one considers the frequency with which police officers might have to use excessive force, it is dangerous for whathappened in this case to be considered as “exceptional circumstances.” [40] The Chief has failed to articulate the connection between alleged damage to reputation etc. and relief from duty without pay. Itis imperative for the Chief to establish this connection between the conduct and the damage to reputation or confirm some evidence thatrelief from duty without pay will result.

Position of the Chief of Police [ 41 ] There is nothing unreasonable in how the Chief and the EPC applied the Bigelow framework. In a case where an allegation of misconduct has been made against an officer, it is reasonable for a Chief of Police to select an option that reflects how serious he or she considers the allegation of misconduct to be.

Relief from duty without pay is a reflection of, and a statement about, how seriously the Chief and EPS view a particular instance of alleged misconduct. [ 42 ] The EPC recognized that the decision to relieve from duty without pay was based not just on the assault charge, but also the disciplinary allegation of deceit. [ 43 ] The third, fourth, and fifth factors of the Bigelow framework do not look to whether the officer’s alleged misconduct could cause damage to the reputation of the EPSD, a potential loss of confidence in EPS, or potential damage to internal accountability and discipline within EPS.

Rather, they look to whether the failure to relieve from duty without pay in light of the officer’s alleged misconduct could have these effects. [ 44 ] Supporting evidence is not required of the possible consequences of a failure to relieve from duty without pay under the third, fourth and fifth elements of the Bigelow test.

This is similar to the approach in s 24(2) of the Charter , where the court must consider whether the admission of the evidence obtained in violation of the Charter “would bring the administration of justice into disrepute.” A test of this type can be satisfied by applying a reasonable person test, rather than by evidence of actual public opinion. [ 45 ] Regarding the 9-month delay between the alleged misconduct and the Notice, it was reasonable for the Chief to consider developments relevant to the strength of the case against the officer before concluding his assessment under s 8(10) using the Bigelow framework.

This would include the investigation and the independent determination by a Crown Prosecutor, that an assault charge was appropriate. June of 2020 was the point at which everything came together in terms of what was available for the Chief to make his decision. The change was that the allegation was fully investigated by June of 2020. [ 46 ] Regarding the alleged factual error made by the Chief, what the Chief referred to in the Notice was the “upper body/head.” What he referred to in the submissions to the EPC, was the “upper back/shoulder blade/neck area.” The video does not show clearly where Cst.

Partington’s knee strikes Mr. McLeod. The Chief’s description was fair, as there was evidence that Mr. McLeod may have sustained injuries to the left side of his face and head that could have been caused by the knee drop. The EPC had the videos and described the knee strike as landing on “Mr. McLeod’s upper back area.” Conclusion on Issue 1 [ 47 ] On this issue, the EPC indicated in its written reasons that: 25. … Bigelow states an allegation of serious criminal conduct may alone constitute exceptional circumstances.

This suggests that allegations of less serious criminal conduct in conjunction with other factors may also constitute exceptional circumstances. [….] 27 The decision that exceptional circumstances exist in this case was based on the allegations that Cst. Partington used unnecessary force and committed the criminal offence of assault, along with making misleading or inaccurate notes. The suspicion that Cst.

Partington has committed the misconduct of deceit is a crucial factor in the Chief’s decision. [….] 32. [….] The alleged misconducts of unnecessary use of force and deceit, which may reasonably give rise to a loss of reputation, loss of public confidence and undermining of internal accountability in EPS, in conjunction with the criminal allegation of assault, are what constitute the exceptional circumstances.

In the Commission’s view, it was reasonable for the Chief to conclude that exceptional circumstances exist when all of these factors are considered in totality. [ 48 ] It is clear from the excerpts above that the EPC pointedly addressed the issue of what constitutes “exceptional circumstances” in the context of the Bigelow factors. [ 49 ] It recognized that the Chief’s decision to relieve from duty without pay was based not just on the assault charge, but also the disciplinary allegation of deceit in addition to the other Bigelow factors.

The EPC indicated that an assault charge combined with an allegation of a deceitful attempt to cover up the assault with a statement in an official report is more serious than an assault charge alone.

That conclusion by the EPC is demonstrably reasonable. [ 50 ] On the argument that the Chief needed to use some kind of stricter test and produce supporting evidence to demonstrate the possible consequences of a failure to relieve from duty without pay under the third, fourth and fifth elements of the Bigelow test, I agree with the Chief’s submissions that “a reasonable person test” would suffice; and the Chief is not required to adduce evidence of actual public opinion in order to meet the onus here. [ 51 ] In my view, nothing turns on the 9-month delay between the alleged misconduct and the Notice as it was practically reasonable for the Chief to carefully consider developments in the file before concluding his assessment pursuant to the PSR , s 8(10) using the Bigelow framework. [ 52 ] On the alleged factual error made by the Chief in terms of description of what transpired in the video clips, I am guided by the statements of the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd , 2013 SCC 34 at para 54 , citing Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para 14 , that on a reasonableness review standard, an administrative tribunal’s “decision should be approached

as an organic whole, without a line-by-line treasure hunt for error.” Even accepting that there were slight discrepancies in the Chief description, it is apparent that both the EPC and this Court, sitting on review, had the benefit of viewing the video clips so as to truly understand what happened at the scene of arrest vis-à-vis the description by the Chief. [ 53 ] Consequently, I conclude that the written reasons of the EPC demonstrate internal coherence and are justifiable in relation to the law and facts that are relevant to the decision: Vavilov at para 105 .

Issue 2: Did the EPC fetter its discretion by applying a test that would always be met? Position of Cst. Partington [ 54 ] Given the manner in which the Bigelow factors are applied, it is a foregone conclusion that the EPC will always uphold the Chief’s decision on exceptional circumstances. This means that the tribunal’s discretion is fettered. [ 55 ] The EPC is applying a test that will always be met: Delta Air Lines . [ 56 ] This creates a situation where it is not possible for the officer to bring evidence or argument that could defeat the Chief’s claims.

It would require the officer to prove a negative (the alleged misconduct would not cause the police service to suffer in its reputation). [ 57 ] The Chief did not provide any evidence to support his contentions that if Cst. Partington was not suspended without pay, the EPS’ reputation may reasonably suffer, that EPS’ internal accountability may reasonably be undermined, nor that the EPS may suffer a loss of public confidence.

The Chief just stated these points and the EPC accepted them. [ 58 ] Therefore, the Chief does not need to bring evidence, an officer cannot bring evidence to defeat the Chief’s claims, and the EPC would require such evidence to overturn the Chief’s claims on a reasonableness review.

The outcome is a foregone conclusion, so the EPC’s discretion is fettered. [ 59 ] Review of recent incidents shows a patchwork approach where outcome is unpredictable. [ 60 ] There are three cases where the Chief had exercised his discretion under the Bigelow framework and the officers accused of serious misconduct, including criminal charges, were not relieved from duty without pay: (

i) Cst. Briegel Merits Decision and Cst. Briegel Penalty Decision ; (ii) Cst. AB Decision ; and (iii) R v Bouwmeester , 2019 ABPC 25 . [ 61 ] In these cases – Briegel , AB and R v Bouwmeester – the officers were not relieved from duty without pay. When you measure Cst. Partington’s alleged misconduct against the universe of other actual and possible misconduct, it is not possible to conclude that these are exceptional circumstances. Position of the Chief of Police [ 62 ] Administrative decision makers must give effect to the statutory scheme under which they operate and must apply the

definitions, principles, and formulas set out in that statutory scheme: Vavilov , para 108 [ 63 ] The statutory scheme puts the opinion of the Chief at the heart of the test for relief from duty without pay.

The EPC must apply a standard of review of reasonableness to the Chief’s opinion on the presence of exceptional circumstances justifying relief from duty without pay. [ 64 ] It is always open to an officer to dispute the reasonableness of the Chief’s opinion through evidence or argument. [ 65 ] At the hearing before the EPC, the Applicant took the position that the Bigelow framework – which was developed by the Law Enforcement Review Board – was the correct legal framework for assessing whether there were exceptional circumstances justifying relief from duty without pay. [ 66 ] The application of the Bigelow framework does not constitute an inappropriate fettering of discretion by the Chief or by the EPC. [ 67 ] There have been instances where the EPC has not confirmed the Chief’s direction to relieve an officer from duty without pay. [ 68 ] Regarding the other cases referenced by Cst.

Partington as similar with less severe sanctions, the Chief says that those cases are distinguishable because those cases involved an application of force to a resisting subject and that was not the case with Mr. McLeod. [ 69 ] In Briegel , the constable arrested an intoxicated man in a convenience store. When the man was woken by Briegel, he grabbed the officer’s arm and became aggressive and combative toward the officer. Briegel punched the man 3 times, resulting in injury. The report prepared by Briegel said that he repeatedly asked the man to let go of him (Briegel) before punching the man.

However, the video of the incident showed only a couple of seconds before the man was hit by Briegel. Briegel pleaded guilty to assault. At the disciplinary hearing deceit was not established. [ 70 ] In AB , the officer struck in the head, a person under the influence of drugs during a strip search. The officer had repeatedly told the person to make no sudden moves. When the person did, the officer thought he was about to be assaulted by the person. This was found to be both subjectively and objectively reasonable.

There was no issue of deceit. [ 71 ] In R v Bouwmeester , the officer assaulted a man by punching him in the face after perceiving that the man’s actions were assaultive. The officer was trying to remove the man from the Boyle Centre and the man became agitated and verbally abusive. After

attempting to escort the man from the premises, the man pulled away from the officer and the officer reasonably perceived that theman’s actions were assaultive. Conclusion on Issue 2 [72] On a preliminary note, it appears the Applicant did not raise any concerns with the Bigelow framework before the EPC.

In thisregard, I am of the view that given the Applicant’s position before the EPC that the Bigelow framework was the correct legal frameworkfor assessing whether there were exceptional circumstances justifying relief from duty without pay, it is not appropriate for him to shiftposition on judicial review and embark on a discrediting mission of the analytic framework of the decision that emanated from anapplication of the same framework. [73] This type of development was dealt with by Doherty JA in R v Kimberley (2001), (ON CA), 56 OR (3d)18 at para 56 (Ont CA), where he observed: While appellate counsel are not locked into positions taken on behalf of their clients at trial, appeals cannot be conducted without anyregard to the conduct of the trial.

To permit counsel to advance a position which was not only not put forward at trial, but which is adirect contradiction of the position advanced at trial, would be to make a mockery of the process.

See also R v Moore, 2017 ONCA 947 at para 15. [74] By analogy and for the purpose of administrative proceedings, taking diametrically opposite positions before the EPC (as anadministrative decision-maker) and this reviewing Court on the Bigelow framework is an approach that should not be encouraged fromthe perspectives of judicial economy, fairness and the overall integrity of the administration of justice regime. [75] Further, the Applicant suggested that over the last several years, the EPC has “routinely and consistently” confirmed theChief’s decision to relieve officers from duty without pay whenever the Chief has pursued that path.

That allegation may soundworrisome at face value. However, it could also be the result of careful exercise of the Chief’s discretion. Nevertheless, the focus of theevaluation here should not be lost; and that is, the EPC’s Decision regarding Cst. Partington’s case. [76] It is also worthy of note that the EPC did not confirm the Chief’s direction to relieve an officer from duty without pay in threeseparate instances:

i) Cst. Lamb Decision, dated February 6, 2013; ii) Cst. Vezina Decision, dated February 6, 2015; and iii) Cst. Vezina Decision #2, dated June 18, 2015. [77] These cases demonstrate that – contrary to the Applicant’s argument that the EPC “routinely” confirmed the Chief’s decisionon relief from duty without pay – the EPC is still capable of exercising its authority and refusing to confirm the Chief’s decision where itdeems it fit to do so as an independent statutory decision-maker.

In other words, the EPC has not fettered its discretion by using theBigelow framework to implement its quasi-judicial functions. [78] Regarding the other three cases referenced by Cst. Partington as similar with less severe sanctions - Briegel, AB and R vBouwmeester – I am satisfied that the facts in those cases are distinguishable from Cst. Partington’s situation. I find that the EPC’s Decision that used the Bigelow framework as the test to evaluate the Chief’s decision was reasonable and that theEPC did not fetter its discretion by using that legal test.

Issue 3: Did the EPC fail to consider the merits of the Chief’s deceit allegations? Position of Cst. Partington [79] The available facts could not support a prima facie finding that Cst. Partington had been deceitful. [80] Cst. Partington did mention the use of his knee in the arrest process and there was conflicting evidence about Mr. McLeod’sbehavior. [81] The EPC refused to engage on this issue, and this was unreasonable. The alleged deceit was an integral part of the exceptionalcircumstances analysis and so the EPC needed to consider the strength of those allegations.

This represents a failure to engage in thereview process and is enough, on its own, to overturn the decision of the EPC. A dispute about semantics can not result in a finding ofdeceit. [82] Regarding the indication in the report that Mr. McLeod was struggling, this is a red herring. There is limited evidence on thispoint, and the evidence suggests that at the very least, Cst. McCargar viewed Mr. McLeod as continuing to pose a threat even while lyingdown. [83] Had the EPC considered this issue, it would have found that the Chief’s conclusion on the willful deceit issue wasunreasonable.

Position of the Chief of Police [84] The discrepancy between what Cst. Partington said in his report and the video is significant and it was therefore reasonable

for the Chief to describe it as a deceit. It goes far beyond a dispute about semantics. [ 85 ] Both of the civilian witnesses said that Mr. McLeod was not struggling when Cst. Partington arrived. Cst. McCargar’s report and the video also supports this conclusion. [ 86 ] The EPC addressed whether there was an evidential foundation for the exceptional circumstances, and this included the alleged misconduct of deceit.

Conclusion on Issue 3 [ 87 ] On this issue, I note as a backdrop to my analysis that the EPC’s jurisdiction is clearly prescribed in s 8(11) of the PSR : If the chief of police relieves a police officer from duty without pay, the chief of police must have that direction confirmed by the commission within 30 days from the day that the police officer is relieved from duty without pay. [ 88 ] In effect, the role of the EPC under PSR , s 8(11) is constrained to a review of the Chief’s decision to determine whether it was reasonable for the Chief to form the opinion that exceptional circumstances exist.

Accordingly, the EPC must only review the “without pay” aspect of the Chief’s decision, as it has no jurisdiction to review the Chief’s reasonable suspicion that an officer has committed misconduct: Kube at para 51 . [ 89 ] In Kube , Nielsen J (as he then was) wrote: [51] Therefore, the Commission becomes involved only when the Chief forms the opinion that “exceptional circumstances” exist so as to justify relief from duty without pay. The term “exceptional circumstances” is not defined.

The Commission in such a case is not deciding whether to “confirm” the Chief’s reasonable suspicion regarding relief from duty, but rather whether to “confirm” the Chief’s “opinion” that exceptional circumstances exist justifying relief from duty without pay. [ 90 ] As such, the EPC was reasonable in engaging with the issue regarding allegation of deceit to the extent permitted within its jurisdiction and concluding that: 29 The Chief’s decision to relieve from duty without pay is not predicated on a finding that criminal conduct or misconduct under the PSR has in fact occurred.

The decision to relieve from duty must be grounded in a suspicion, based on reasonable grounds, that misconduct has occurred. As noted above, that aspect of the Chief’s decision is not being reviewed by the Commission. The only question before the Commission is whether the Chief’s opinion that exceptional circumstances exist is reasonable. [ 91 ] The EPC’s recognition of the scope of its jurisdiction under the PSR and existing jurisprudence does not constitute an error.

As a statutory decision maker, it accepted in light of the facts before it that the Chief had a suspicion that is founded on reasonable grounds and proceeded to assess whether exceptional circumstances exist in the context of those facts – as discussed earlier under Issue 1 – before concluding that the Chief’s decision was reasonable. [ 92 ] I am satisfied that the EPC was fully engaged with the issues it had the jurisdiction to consider in this matter. Issue 4: Did the EPC take unreasonable and irrelevant considerations into account? Position of Cst. Partington [ 93 ] The EPC went beyond considering Cst.

Partington’s conduct and moved into conjecturing about the future actions of hypothetical EPS officers generally. Hypothetical individuals cannot be part of the PSR , s 8(10) analysis. [ 94 ] There are three issues with the EPC’s conclusion that it was reasonable for the Chief to conclude that internal accountability may be undermined by Cst. Partington’s actions. [ 95 ] First, this presumes that Cst. Partington is guilty of deceit when there has been no hearing on this issue. Second, Cst. Partington is acting as a scapegoat for the hypothetical future actions of other imaginary officers.

This can not be part of the “exceptional circumstances” analysis. Third, this factor is equivalent to the EPC considering “deterrence,” and this should more property be considered in the discipline process as part of sentencing. [ 96 ] The EPC’s support of the Chief’s consideration of this factor was improper and unreasonable. Position of the Chief of Police [ 97 ] This factor does not presume guilt. It considers the effect of the manner in which the EPS deals with the pending allegations of misconduct.

The focus here is internal rather than external. [ 98 ] If the action taken by the Chief does not reflect the seriousness of the misconduct, this may promote a loss of respect on the part of other officers toward the discipline process and the judgment of the persons responsible for administering it. [ 99 ] The relief from duty without pay reflects Cst. Partington’s alleged misconduct. There is no scapegoating here. [ 100 ] This factor also does not involve deterrence. Relief from duty without pay is neither a sanction or designed to discourage offending.

It is an internal and public statement about the seriousness of the alleged misconduct.

Conclusion on Issue 4 [ 101 ] On this issue, the EPC wrote: 30. The most compelling Bigelow factors in this case are that EPS may suffer in its reputation and from a loss of public confidence. The Commission notes the potential harm the alleged actions of Cst. Partington could cause to the relationship between EPS and the community. Trust in the EPS and effective community policing may be damaged by the alleged conduct of Cst. Partington. It was reasonable to conclude that a loss of reputation and a loss of public confidence in EPS may occur if Cst. Partington was not relieved from duty without pay. 31.

It was also reasonable to conclude that internal accountability or discipline within EPS may be undermined if Cst. Partington were not relieved from duty without pay in these circumstances.

If this alleged misconduct leads other officers to believe they can hide their behavior and be dishonest in their reporting without consequence, that could erode an essential principle of policing which relies on police officers being truthful and accurate. [ 102 ] Clearly, both the Chief and the EPC relied on the Bigelow factors – particularly the third, fourth and fifth factors – in order to assess whether exceptional circumstances exist in Cst.

Partington’s case, as required by s 8(10) of the PSR . [ 103 ] It is practically imperative under an evaluation of those factors by the EPC to do a form of projection as to the impact of the Chief’s failure to carry out his statutory duty to form an opinion regarding the alleged actions of Cst. Partington. In effect, the EPC’s focus was trained on the alleged misconduct or “actual circumstances” of Cst.

Partington vis-à-vis how that: • may reasonably damage the Police Service’s reputation or administration were the officer not relieved from duty without pay; • may reasonably impact (or undermine) accountability or discipline within the Service were the officer not relieved from duty without pay; • may affect public interest or cause a loss of public confidence in the Service were the officer not relieved from duty without pay. [ 104 ] Thus, the consideration and application of the Bigelow factors by the EPC in the context of the requirements of s 8(10) of the PSR are all, in my view, relevant and reasonable considerations in confirming the Chief’s decision to relieve Cst.

Partington of duty without pay. [ 105 ] Further, by using the required Bigelow factors to perform its quasi-judicial function as an administrative decision-maker, the EPC was not penalizing Cst. Partington as in a sentencing proceeding. In this context, I note that the EPC’s reasons clearly indicated (at para 27): The decision that exceptional circumstances exist in this case was based on the allegations that Cst. Partington used unnecessary force and committed the criminal offence of assault, along with making misleading or inaccurate notes. The suspicion that Cst.

Partington has committed the misconduct of deceit is a crucial factor in the Chief’s decision . [ 106 ] Having reviewed the EPC’s written reasons, I am satisfied that the EPC was alive to the scope of its jurisdiction and that it was reviewing the Chief’s decision that exceptional circumstances exist, based on “allegations” and “suspicion,” as required by the Bigelow factors. As such, the EPC in its written reasons did not presume that Cst. Partington was “guilty” of deceit.

Disposition [ 107 ] I find that the EPC, in making its decision, applied a well-established legal test prescribed by the Law Enforcement Review Board to confirm the Chief’s decision to relieve Cst. Partington from duty without pay. [ 108 ] In the result, I conclude that the impugned EPC’s Decision is reasonable. The decision “is based on an internally coherent and rational chain of analysis and [is] justified in relation to the facts and law that constrain” it as an administrative decision maker: Vavilov at para 85 . [ 109 ] Cst.

Partington has failed to establish that the Edmonton Police Commission’s Decision was unreasonable or that the EPC fettered its discretion in any way. His application is therefore dismissed. Heard on the 14 th day of April, 2021. Dated at the City of Edmonton, Alberta this 17th day of May, 2021. D.A. Yungwirth J.C.Q.B.A. Appearances:

Patrick Nugent for the Applicant Simon Johnson and Teresa Magee for the Chief of Police of the Edmonton Police Service Deanna MacFadyen for the Edmonton Police Commission