Rysdyk v Slaney et al, 2022 ABQB 538

Court of Queen’s Bench of Alberta Citation: Rysdyk v Slaney et al, 2022 ABQB 538 Date: Docket: 1801 09579 Registry: Calgary Between: Gerrit Rysdyk Plaintiff - and - Cst Slaney Reg # 4176, Cst Svinth-Lassen, Cst Hopper and Roger Chaffin, Chief of the Calgary Police Service Defendants _______________________________________________________ Reasons for Judgment of the Honourable Justice JT Eamon _______________________________________________________ Table of Contents I Introduction . 2

II Legislative and regulatory structure . 3 (

a) Introduction . 3 (

b) The complaints and discipline process . 4 III Background facts . 7 IV Applicants’ position . 8 V Respondent’s position . 12 VI Whether Records are privileged . 13 (

a) Whether s 51 of the Police Act applies to explanatory reports where no disciplinary hearing is held 13 (

b) Whether the statements of Constables Hopper and Svinth-Lassen are explanatory reports in whole or in

part 14 (

c) Whether s 51 applies only if the statements are inculpatory; and, if so, whether the statements are inculpatory . 16 (

d) Whether the protections of s 51 of the Police Act and s 10 of the Regulation create a statutory privilege including under the FOIP Act 17

Section 51 of the Police Act 17

Section 10 of the Regulation . 23 (

e) If the statements are privileged, whether privilege was waived . 24 VII Whether to remove the Plaintiff’s counsel 24 VIII Conclusion . 27 I Introduction [ 1 ] In this lawsuit, the Plaintiff alleges that the Defendant Calgary Police Constables Slaney, Svinth-Lassen and Hopper (the “CPS Officers”) assaulted him, breached his Charter rights and maliciously exercised their authority during an interaction with him on the evening of July 9, 2016.

The Plaintiff further alleges that the Calgary Police Service (“ CPS ”) defamed him in a news release or on social media by publishing false statements about the Plaintiff’s actions leading up to or during his interaction with police. The Plaintiff sued the chief of police, alleging the police chief is liable under the Police Act for the alleged wrongdoings of the CPS Officers and CPS. [ 2 ] The Defendants deny the allegations.

A court has not yet decided whether the allegations are or are not true. [ 3 ] The Plaintiff made a complaint under the Police Act , RSA 2000, c P-17 , to CPS/chief of police against the police officers involved in the incident. The CPS Professional Standards

Section investigated the complaints. The records of the investigation include a written statement from Constable Slaney, summaries of statements made in interviews by Constables Svinth-Lassen and Hopper, and an investigative

summary that includes information from the statements. I refer to the records of these statements or their content as the “ Records ”. Eventually the Chief Constable dismissed the complaint, without a formal discipline hearing. [ 4 ] The Plaintiff obtained copies of the Records from the CPS Access and Privacy

Section through a request under the F reedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (“ FOIP Act ”). He intends to use the Records and the information they contain in this lawsuit. [ 5 ] The CPS Officers claim the Records are privileged. They applied to remove the Records from the Plaintiff’s possession, prohibit use of the Records in the lawsuit, and remove the Plaintiff’s lawyer Mr Engel and his law firm from representing the Plaintiff in the lawsuit.

The Defendant chief of police is not an Applicant and did not appear on the application. [ 6 ] The issues are whether the Records and their contents are privileged, and if so, whether the Plaintiff’s lawyers should be removed from representing the Plaintiff because of their knowledge of the Records and the way they have dealt with the Records. II Legislative and regulatory structure (

a) Introduction [ 7 ] The CPS is the municipal police force established and maintained by the City of Calgary under

section 27 of the Police Act . [ 8 ] Members of police forces are subject to a complaints and discipline process, under

Part 5 of the Police Act and the Police Service Regulation , Alta Reg 356/1990 (the “ Regulation ”). Officers may be asked or required to provide an explanatory report in their own words of their involvement in incidents for the purpose of complaint and discipline processes. Officers may be required to attend

interviews. Third party witness statements might be gathered. The complaint might be refused, decided without a hearing, or decided through a formal hearing. Formal hearings may be in public or private. [ 9 ] Members of the public may have an interest in learning what a police officer said in response to a complaint. CPS is subject to the FOIP Act .

The FOIP Act provides applicants a right of access to applies to many [1] records in the custody or control of a public body, including a record containing personal information about the applicant ( FOIP Act , s 6). [ 10 ] Mr Rysdyk obtained the Records under the FOIP Act and intends to use the CPS Officers’ statements from CPS ’ complaint file for this lawsuit. [ 11 ] The CPS Officers claim that a legal privilege from disclosure of the Records applies, under s 27 of the FOIP Act . Therefore, the Records were not disclosable under the FOIP Act and cannot be used in this lawsuit. [ 12 ] Subsection 27(1) (

a) of the FOIP Act provides discretion to the head of a public body to refuse disclosure of privileged information as follows: 27(1) The head of a public body may refuse to disclose to an applicant (

a) information that is subject to any type of legal privilege, including solicitor-client privilege or parliamentary privilege, ... However, the head of the public body must withhold privileged information where the information relates to a person other than the public body called on for disclosure ( FOIP Act , s 27(2)). [ 13 ] To decide the issues, I must consider the general structure of the complaint and discipline procedure under the Police Act , together with the restrictions on use of various statements or evidence that a person subject to a complaint might provide. (

b) The complaints and discipline process [ 14 ] Various persons may make a complaint of conduct respecting police officers ( Police Act , s 42.1). Complaints against officers are directed to the chief of police ( Police Act , s 43). Conduct complaints are regulated under sections 45 through 48 of the Police Act . Unless summarily dismissed or resolved through an alternative dispute resolution process, they must be investigated.

The results of the investigation are provided to the chief of police, who then decides on any required further actions ( Police Act , s 45). [ 15 ] The further actions may include directing the matter to a hearing before the chief of police or a hearing officer designated by them where the chief of police concludes there is a reasonable prospect of conviction ( Land v Law Enforcement Review Board , 2013 ABCA 435 at para 30 ). The chief of police has discretion to direct whether the hearing is held in public or private ( Regulation , s 16(1)).

Following a hearing the chief of police or designate may dismiss the complaint or take action as appropriate ( Police Act , s 47(4)) [2] . Many sanctions are available to suit the circumstances of the case ( Regulation , s 17). [ 16 ] If the chief of police is of the opinion that the alleged contravention of the regulations governing the discipline or the performance of duty of police officers is not of a serious nature, the chief of police may, subject to the regulations, dispose of the matter without conducting a hearing ( Police Act , s 45(4); Regulation , s 19(1)).

In such cases, the available sanctions are more limited than if a hearing were held. The chief of police or designate must give reasons to the complainant and the officer who is the subject of the complaint ( Police Act , s 47(5)(d)). [ 17 ] The officer and the complainant may appeal the outcome of a hearing to the Law Enforcement Review Board ( Police Act , s 48). The Board considers all the information before the chief of police (or designate) to decide the appeal.

The appeals are heard in public and, subject to any contrary order, the record will become available to the public (see Edmonton (Police Service) v Alberta (Law Enforcement Review Board) , 2014 ABCA 267 ). [ 18 ] However, where the chief of police disposes of a matter under subsection 45(4), their decision is final ( Police Act , s 45(4.1)). Subsection 45(4.1) removed the right of appeal to the Law Enforcement Review Board under s 48 for the merits decision on less serious matters ( Fermaniuk v Knecht , 2017 ABCA 342 at para 18 ).

The record before the chief of police would not become available to the public through the statutory appeal process [3] . [ 19 ] Officers who are the subject of a complaint might provide voluntary or involuntary explanatory reports to the investigator and might give evidence in a disciplinary hearing.

Section 51 of the Police Act and s 10 of the Regulation protect such statements. [ 20 ]

Section 51 of the Police Act provides: 51 Where a police officer or peace officer appointed under the Peace Officer Act gives evidence during (

a) a hearing under this Act, or (

b) an appeal under this Act arising out of a hearing referred to in clause (a), that evidence, or an explanatory report made to an investigator on a voluntary or involuntary basis by a police officer in respect of whom an investigation is being carried out, if it tends to incriminate him or her, subject him or her to punishment or establish his or her liability, shall not be used or received against the police officer or peace officer appointed under the Peace Officer Act in any civil proceeding or in any proceeding under any other Act , except in a prosecution for or proceedings in respect of perjury or the giving of contradictory evidence.

(Underlining added) [ 21 ] For ease of reference, I refer to each of the three elements mentioned in s 51 – “tending to incriminate him or her, subject him or her to punishment or establish his or her liability” – as “ inculpatory ”. [ 22 ]

Section 10 of the Regulation provides: 10(1) Where an investigation is carried out in respect of a complaint as to the actions of a police officer, the police officer shall be advised as to the details of the complaint and be provided with a copy of all statements made by the complainant.

(2) A police officer in respect of whom an investigation is being carried out may, on a voluntary basis, provide the investigator with an explanatory report in the police officer’s own words setting out his version of the subject-matter of the complaint .

(3) Where (

a) a police officer in respect of whom an investigation is being carried out is directed by the investigator to provide an explanatory report referred to in subsection (2) setting out the police officer’s version of the subject-matter of the complaint , and (

b) pursuant to that direction the police officer provides an explanatory report, that explanatory report shall be regarded as an involuntary statement and shall not be admissible in evidence in any proceedings carried out under the Act, except to prove that the statement is false .

(4) Where (

a) a police officer who might reasonably have knowledge of matters pertaining to a complaint or report is directed by the investigator to provide an explanatory report referred to in subsection (2) setting out his knowledge of any matters pertaining to the matter under investigation, and (

b) pursuant to that direction the police officer provides an explanatory report, that explanatory report shall be regarded as an involuntary statement and shall not be admissible in evidence in any proceedings carried out under the Act against him, except to prove that the statement is false .

(5) A police officer who is directed by an investigator under subsection (3)(

a) or (4)(

a) to provide an explanatory report shall do so within 14 days of being notified of the direction.

(6) A statement made under subsection (3) or (4) may be used by the chief of police for the purposes of section 45(3) or (4) of the Act and by the chief of police or the police officer in charge of the investigating police service for the purposes of

section 46.1(4) of the Act. (Underlining added) [ 23 ] Officers may also be compelled to an interview during the investigation.

Section 10.1(1) of the Regulation authorizes the chief of police, when investigating a complaint as to the actions of a police officer, to direct the police officer whose actions may have resulted in the complaint to attend at an interview and answer questions.

Such interviews must be recorded if practical ( ibid , s 10.1(4)). [ 24 ] The Police Act and Regulation do not expressly provide any protection for interviews. [ 25 ] Unlike some statutory regimes for professional discipline or other requirements that force individuals to provide a statement to authorities, the Police Act and Regulation do not explicitly provide that the investigation is conducted in private (contrasting examples include s 78(3) of the Legal Profession Act , RSA 2000, s 78(3)) or that the resulting statements are not open to public inspection (a contrasting example is the provision of Alberta law since a 1947 amendment to the Vehicles and Highway Traffic Act , RSA 1942, c. 275 , presently the Traffic Safety Act , RSA 2000, c T-6 , s 11(3), that compelled statements of drivers involved in motor vehicle accidents are not open to public inspection).

However, as I conclude later in these Reasons, confidentiality is implied under the Police Act unless and until certain events occur. III Background facts [ 26 ] The Plaintiff (through his lawyer, Mr Engel) made a complaint dated December 20, 2016 against the CPS Officers in respect of the incident on July 9, 2016. The CPS Professional Standards

Section investigated the complaint. [ 27 ] The investigator distilled the Plaintiff’s complaint into nine specific factual allegations of misconduct under the Regulation . On May 8, 2018 the investigator demanded each CPS Officer provide an explanatory report, either voluntary or involuntary, under

section 10 of the Regulation . The report was due within 30 days of May 8. The investigator warned that that if the recipient of the demand did not provide an explanatory report by the due date the investigator may order him to provide a written statement by a specified date or attend for an interview. [ 28 ] Constable Slaney elected to provide an involuntary explanatory report in writing and did so on June 20, 2018. [ 29 ] Constables Hopper and Svinth-Lassen each attended interviews with the investigator. The Applicants’ materials do not explain why they attended an interview; for example, whether they failed to provide reports and were subsequently directed to interviews.

[ 30 ] The investigator generated a

summary for each of Constables Hopper and Svinth-Lassen that indicates that the investigator conducted an interview. Among other things, each

summary notes the “interview subject”, “interview date”, “location of interview”, and name of “Interviewer 1”. The

summary provides: “ Please note this is a

summary – not a transcript ” [emphasis in original]. [ 31 ] Constable Hopper was interviewed June 6, 2018. After reciting the interview date, place and the like, the

summary continues: Explanatory Report blurb directing Cst. Hopper to provide a statement. He agrees to provide an involuntary statement. [The interviewer] asked follow-up questions and the following are the answers Constable Hopper provided. This is followed by what appears to be a

summary of information provided by Constable Hopper, then additional information is summarized under the headings “Follow-up questions regarding allegations”, and “Follow-up questions from [name redacted under s 17(1) of the FOIP Act ]”. [ 32 ] Constable Svinth-Lassen was interviewed May 31, 2018. After reciting the interview date, place and the like, the

summary continues: Explanatory Report blurb directing Cst. Svinth-Lassen to provide a statement. He agrees to provide an involuntary statement.” This is followed by what appears to be a

summary of information provided by Constable Svinth-Lassen, then additional information is summarized under the headings “Follow-up questions regarding allegations”, “Follow up questions addressing additional items in the letter of complaint”, and “Follow-up questions from [name redacted under s 17(1) of the FOIP Act ]”. [ 33 ] The investigator’s report describes the source of the information from Constables Hopper and Svinth-Lassen as “INT [officer name and ID no.] –

Summary [date]” and “INT [officer name and ID no.] – Audio [date]”. The dates correspond to the interview dates recorded in the meeting summaries. Reading all the evidence, the reference to “INT” obviously means “interview”. [ 34 ] Each CPS Officer detailed the chronology of the events from his perspective, his observations of others’ involvement in the events, and his subjective beliefs during the time of the events.

The statements also refer to the officer’s training in explaining why they responded as they did. [ 35 ] By letter decision dated November 12, 2018 the Chief Constable informed the Plaintiff and his counsel that there is insufficient evidence to support the nine allegations of misconduct and dismissed them pursuant to s 19(1)(a)(

i) of the Regulation .

As mentioned earlier, dismissal without a hearing is available under section 45(4) of the Police Act where the chief of police is of the opinion that the matter is “not of a serious nature”. [ 36 ] The Chief Constable found the Plaintiff’s factual allegations unsubstantiated considering the evidence of the constables and third party witnesses, therefore the allegations of misconduct were not proved. [ 37 ] The Chief Constable’s letter summarized the investigative evidence in considerable detail, including much (though not all) of the CPS Officers’ evidence pertaining to the substance of each of the nine allegations. [ 38 ] The Plaintiff’s lawyer made a FOIP Act request to CPS on November 30, 2018 for the records relating to the incident.

On February 1, 2019, CPS provided copies of the Records (along with other information that is not in issue). The Plaintiff’s counsel reviewed the Records, and provided a copy to the Plaintiff on February 7, 2019. [ 39 ] When records discovery proceeded in the lawsuit, the Plaintiff included the Records in his draft affidavit of records. Shortly after, the CPS Officers objected to production or use of the Records in the lawsuit, citing

section 10 of the Regulation . This led to a chain of correspondence, with the CPS Officers first asserting the records were privileged on September 23, 2020. In July 2021, Plaintiff’s counsel received a copy of an email from CPS to the CPS Officers’ counsel stating the Access and Privacy

Section has not disclosed compelled statements since February 12, 2021 having been advised by its lawyer on that date that such statements are privileged and need not be released under the FOIP Act . In August 2021 Plaintiff’s counsel agreed to the Defendants’ request to remove the records from the Plaintiff’s affidavit of records but did not clearly commit not to use the Records.

The CPS Officers responded by demanding that the Plaintiff and his counsel also destroy all copies and notes related to the Records, stating “That would appear to be the most we can do to protect my clients’ privilege over the impugned documents”. On September 13, 2021 CPS Officers’ counsel renewed the demand and added that Mr Engel have no further involvement on the Plaintiff’s file. Mr Engel refused these demands.

IV Applicants’ position [ 40 ] In written and oral submissions, counsel for the CPS Officers asserted a blanket privilege over all the Records - whether or not inculpatory - and stated during oral submissions that the information from the CPS Officers’ statements set out in the November 12, 2018 letter decision from the Chief Constable to the Plaintiff (as complainant) is also privileged. [ 41 ] Applicants’ counsel cites several precedents wherein the Court characterized the restrictions on admissibility or use of evidence in similarly structured discipline proceedings as a form of privilege ( Chiropractic Profession Act , SA 1984, c C-9.1 , s 56(2); Medical Profession Act , RSA 1980, c M-12 , s 49(2); Legal Profession Act , RSA 1980, c L-9 . s 69(2); Real Estate Act , RSA 2000, c R-5 , s 42(e)(iii); The Chartered Accountants Act , RSA 1980, c C-5 , s 33(2)).

Most of these limitations are substantially similar to s 51 of the Police Act . Other examples appear in various professional regulatory statutes in Alberta. [ 42 ] In A v L , 1998 ABQB 26 , Justice Bielby (then a judge of this Court, later of the Alberta Court of Appeal) observed that the Chiropractic Profession Act , RSA 1980, c C-9 .1, s 56(2), which established a scheme similar to the scheme in this case, expressly created a privilege attaching to the evidence of the person facing discipline.

[43] Justice Bielby referred to Loeppky v Uschel, unreported, October 23, 1992, and observed that Justice Gallant in obiteraccepted that s 49(2) of the Medical Profession Act, RSA 1980, c M-12 (another provision similar to s 51) imposed a privilege. JusticeBielby also cited Master Breitkreuz, in Duarte v Perreault (1992), (AB QB), 83 Alta LR (2d) 92, limiting the extentof a similar protection under s 69(2) of the Legal Profession Act, RSA 1980, c L-9 to the solicitor’s own testimony and not that of otherwitnesses, nor other documents in the solicitor’s disciplinary hearing.

Justice Bielby characterized these cases as imposing a privilegeover the evidence of the member facing discipline. However, in the case before her the investigation had not proceeded to a hearing sothe privilege did not apply. She rejected privilege over other information in the complaint file. [44] Corlett v Matheson, 2003 ABQB 412 applied the same principles to the regulatory scheme that created the Real EstateCouncil of Alberta, the statutory regulator of realtors and others involved in real estate business in Alberta. In that case the plaintiff suedthe vendor and their realtor.

The resulting default judgment gave rise to a claim under a regulatory assurance fund, and the Council wasjoined to the action for a claim under the fund. The Council claimed privilege over its investigation file pertaining to the realtor andobjected to producing it to the plaintiff. Justice Moreau (now CJQB) agreed with the reasoning in A v L, accepting that s 42(e)(iii) of theReal Estate Act, RSA 2000, c R-5 provided a privilege over the oral evidence of witnesses before a discipline hearing panel (ibid at para44). However, the investigation had not proceeded to a hearing so that privilege did not apply.

Justice Moreau rejected the regulator’sclaim of privilege over other information in its complaint file (ibid at para 65). [45] Counsel for the CPS Officers also cites Baumann v Bonderove, 1986 ABCA 114 , 45 Alta LR (2d) 168, where theAlberta Court of Appeal held that a chartered accountant under a similar statutory scheme (ss 31, 32 and 33 of The CharteredAccountants Act, RSA 1980, c C-5) was not obliged to produce, in a civil action, a transcript of their evidence in disciplinary proceedings.The Court held: [9] To my mind the words above quoted set up a scheme of statutory prohibition for both the “use of” the transcript and thereceiving of it in evidence.

The Act promotes a full and frank disclosure for investigative procedures in “private” unless the memberchooses otherwise. However, the safeguard is then triggered and it is that anything disclosed “in private” shall not be disclosed unlessthe member chooses otherwise. [46] Unlike the present case, the statute expressly required that discipline proceedings be held in private.

Section 32 stated: Except where the member being investigated requests that proceedings be held in public, proceedings before a person conducting apreliminary investigation, an investigating committee or the Council shall be held in private. [47] The Applicants cite two authorities dealing with the use or admissibility of police officer’s statements in disciplineproceedings under the Police Act: Johnston v Extendicare Health Services Inc, 1999 ABQB 693 (MC) and Edmonton (Police Service)v Szybunka, 2019 ABQB 854. [48] In Johnston, a Master in Chambers held that

section 10 of the Regulation applied in a civil action against a police officer. Theplaintiff alleged the chief of police was vicariously liable for the actions of the officer under the Police Act. Master Quinn concluded thatthe action was therefore a proceeding under the Police Act.

Section 10 of the Regulation provided the officer’s involuntary explanatorystatement was not admissible in evidence in any proceedings under the Police Act, therefore the statement was not admissible in the civilaction and did not have to be produced. [49] Master Quinn stated that if he were wrong in that conclusion, he would find the statements need not be produced because theywere absolutely privileged: [19] If I am in error in coming to the decision just mentioned, I agree in any event with counsel for the defendants that the saidstatements are not produceable because absolute privilege attaches to them. [20] In Copartnership Farms v.

Harvey-Smith [1918] 2 K.B. 405. Sankey J. considered the question of absolute privilege. At page408 he said: That point of law now comes on for determination, and it falls to be decided whether a local tribunal set up under the Military ServiceActs, 1916, and the regulations made in pursuance thereof is a tribunal of such a character that any statements made by a member thereofduring the course of proceedings before it are absolutely privileged. A number of cases have been cited, but in my opinion there cannotbe any controversy upon the principle of law which is applicable to the present case.

That principle I conceive to be this, that where atribunal is a Court of justice, or a body acting in a manner similar to that in which a Court of justice acts, any statement made by amember thereof is absolutely privileged and no action can be brought thereon. This absolute privilege extends also to advocates, litigants,and witnesses, and the reason which has induced our law to adopt that principle is, if I may be allowed to say so, best stated by ChannellJ. in Bottomley v.

Brougham, “the reason being that it is desirable that persons who occupy certain positions as judges, as advocates, oras litigants should be perfectly free and independent, and, to secure their independence, that their acts and words should not be broughtbefore tribunals for inquiry into them merely on the allegation that they are malicious.” The law was originally laid down as far back asthe year 1772 by Lord Mansfield in the case of Rex v. Skinner and has been acted upon ever since. [21] Where a public complaint has been made concerning a police officer

section 45 of the Police Act requires the Chief of Policeto cause the complaint to be investigated. [22] In my view when the Chief of Police is conducting an investigation he is acting in a manner similar to that in which a Court ofJustice acts, and statements made by Constables Doyle and Cole (although made in writing) fall within the absolute privilege and do nothave to be produced. [50] In Szybunka, a fatality inquiry judge found a police officer’s involuntary explanatory report privileged under s 51 of thePolice Act but concluded it could be used in the fatality inquiry because the proceeding could not find liability against the officer.

JusticeOuellette reversed the decision, holding that “Once privilege has been established, as is the case here under s 51 of the Police Act, orestablished in any other fashion, that privilege does not diminish or lose its importance depending on the nature of the proceedings” (ibid

at para 28). [51] The Applicants’ counsel submitted that the focus in these cases was on the circumstances under which the statements weremade, not whether the statements were inculpatory. Counsel submits: The CPS Officers submit that there is good reason not to interpret the statutory privilege as applying only to inculpatory statements,namely, a determination of the civil liability of any of the professionals in question will only occur at trial.

Whether a statement made bythem or evidence given by them “tends to establish his or her liability” can likewise only be made at trial. [Supplemental Brief, para 23] Counsel further submits that the legislature could not have intended to require a careful weighing of the content of the statements at thedocumentary production phase of a civil action in order to protect the statements from disclosure (Supplemental Brief, para 24).

Rather,the content of the statements - inculpatory (as I have defined it at para 21 above) or exculpatory - is irrelevant and the privilege arisesbecause the officers were compelled to make statements in a disciplinary process (Supplemental Brief at para 25). [52] Counsel for the Applicants also referred to the long standing privilege over accident statements that drivers are compelled tomake under Alberta motor vehicle administration statutes (presently, the Traffic Safety Act, RSA 2000, c T-6, s 11(3)).

See: Peters vTurner, (AB CA); Cullen (Estate) v Demers, (AB CA); Lowe v Larue (1996), (AB QB), 197 AR 15 at para 12 (QB), aff’d (1997), 1997 ABCA 211 , 206 AR 397 (CA); Klassen v Dachyshyn, 1998 ABQB39 ; Auer v Lionstone Holdings Inc, 2005 ABCA 78 at para 10 and authorities cited therein. [53] These motor vehicle statutes provide, among other things, that the statement shall not be open to public inspection and thestatements are not admissible in evidence other than to prove compliance with the driver’s reporting obligation under the legislation.Counsel submits that the statutory protections under the Police Act and Regulation are arguably more expansive, and the protection forpolice constables’ statements should be at least as rigorous. [54] Counsel also referred in oral submissions to White v LaFreniere, 1997 ABCA 12 , where the Court assumed withoutdeciding that a privilege applied to all the transcripts of a disciplinary hearing before an investigation committee of the College ofPhysicians and Surgeons.

The defendant physicians and their lawyers had all the transcripts. In the interests of fairness, the Court uphelda case management judge’s order that the plaintiff receive transcripts of her evidence and certain other witnesses at the hearing. [55] On the question of privilege, the Court observed: [5] ... There are, however, important exceptions to the general rule requiring disclosure [in civil actions]. For example, there may be aprivilege or other statutory prohibition precluding disclosure of the requested documentation.

In this case, we are assuming, withoutdeciding, that there is a privilege apart from that imposed on the Council of the College and that privilege, in our view, extends to boththe patient and the physicians equally. This is consistent with the public policy considerations underlying the desirability of promotingfull and frank disclosure at professional disciplinary hearings. [56] Applicants’ counsel submits that the statements, being privileged, could not be released to the Respondent under the FOIP Actbecause s 27(2) prohibits disclosure.

Consequently, the Applicants’ privilege over the information was not waived by the release. [57] Counsel observed that Mr Engel did not seal the Records when the CPS Officers asserted their privilege.

Counsel submittedthat the only remedy that adequately protects the CPS Officers is to remove Mr Engel and his law firm from representing the Plaintiff.Counsel relies on two cases where solicitor-client privileged documents were inadvertently disclosed to opposing counsel, CelaneseCanada Inc v Murray Demolition Corp, 2006 SCC 36 and a decision of Justice Jeffrey in 0678786 BC Ltd v Bennett Jones LLP, 2020ABQB 115 applying the principles to the specific facts before him. V Respondent’s position [58] Counsel for the Plaintiff/Respondent disputed the existence of a blanket privilege or any case-by-case privilege.

Theprotections of

section 51 of the Police Act and

section 10 of the Regulation are not privileges. Rather, they are limitations on use. Wherethe legislature intends a privilege, it explicitly says so (citing the Workers' Compensation Act, RSA 2000, c W-15, s 148). [59] Counsel further submitted the use limitations are not engaged in this case. [60]

Section 51 of the Police Act does not apply to the statements because the complaint did not proceed to a hearing. [61]

Section 10 of the Regulation does not apply to the statements of Constables Hopper and Svinth-Lassen because they providedtheir information through interviews. Interviews are governed by s 10.1 of the Regulation and are not explanatory reports under s 10.Interviews are not protected under the Regulation (citing an unpublished decision by letter from the Law Enforcement Review Board inanother matter) or s 51 of the Police Act. [62] Respondent’s counsel concedes that Constable Slaney’s report was an explanatory report covered by s 10 of the Regulation.However, s 10 only applies to proceedings under the Police Act. A civil action is not a proceeding under the Police Act. [63] Even if

section 51 of the Police Act could apply to the Records, the statements do not tend to incriminate the CPS Officers,subject them to punishment or establish liability (Supplemental Brief April 4, 2022 at pp 4-5). [64] Accordingly, there are no use or other limitations that apply to any of the statements. [65] Counsel submits that if the Records are subject to privilege or use limitations, removal of counsel is not an appropriateremedy. Much of the information over which privilege was claimed was released to the Plaintiff and counsel in the November 12, 2018letter decision of the Chief Constable providing reasons to dismiss the conduct complaints against the CPS Officers. Further, forcing

removal of counsel would unduly impair the Plaintiff’s choice of counsel. VI Whether Records are privileged [ 66 ] I must consider the following issues in deciding whether the protections of the Police Act and Regulation constitute a privilege over the disclosure, use or admissibility of the statements in the civil action: (

a) Whether s 51 applies to explanatory reports where no disciplinary hearing is held. (

b) Whether the statements of Constables Hopper and Svinth-Lassen are explanatory reports in whole or part. (

c) Whether s 51 applies only if the statements are inculpatory; and, if so, whether the statements are inculpatory. (

d) Whether the protections of s 51 of the Police Act or s 10 of the Regulation create a statutory privilege including under the FOIP Act . (

e) If the statements are privileged, whether privilege was waived. (

a) Whether s 51 of the Police Act applies to explanatory reports where no disciplinary hearing is held [ 67 ] Respondent’s counsel interprets s 51 to apply to explanatory reports only where the officer gives evidence at a disciplinary hearing. He submits that the complaints were dismissed without a hearing, therefore s 51 does not apply. He relies on the opening language of the section: 51 Where a police officer or peace officer appointed under the Peace Officer Act gives evidence during (

a) a hearing under this Act, or (

b) an appeal under this Act arising out of a hearing referred to in clause (a), that evidence, or an explanatory report made to an investigator on a voluntary or involuntary basis by a police officer in respect of whom an investigation is being carried out, if it tends to incriminate him or her, subject him or her to punishment or establish his or her liability, shall not be used or received .... (Underlining added) [ 68 ] I do not agree with the Respondent. You can reasonably interpret the statutory wording to apply to either or both of hearing evidence and explanatory reports.

The legislature could have, using the same language, written one provision for each type of evidence: Where a police officer or peace officer appointed under the Peace Officer Act gives evidence during (

a) a hearing under this Act, or (

b) an appeal under this Act arising out of a hearing referred to in clause (a), that evidence, if it tends to incriminate him or her, subject him or her to punishment or establish his or her liability, shall not be used or received ... [A]n explanatory report made to an investigator on a voluntary or involuntary basis by a police officer in respect of whom an investigation is being carried out, if it tends to incriminate him or her, subject him or her to punishment or establish his or her liability, shall not be used or received .... [ 69 ]

Section 51 could be better written or is perhaps ambiguous, but the Respondent’s

interpretation would defeat the purpose and object of the statutory protection. [ 70 ] The legislative intention of similar provisions in other disciplinary schemes is to “give a full right of self-defence without fear of self-incrimination by foreclosing the use of such testimony in other matters” ( A v L at para 22) or to “produce a full and frank disclosure” in disciplinary proceedings ( Bonderove at para 5 ; White at para 5 ). The same objectives apply to matters of complaints and discipline against police officers.

There would be no purpose in excluding, from the statutory protection, explanatory reports from officers who are not charged with a disciplinary offence, officers whose charges are screened out or determined under subsections 45(3) or 45(4) of the Police Act , or officers who are charged but do not give evidence. [ 71 ] Consequently, I agree with counsel for the CPS Officers that s 51 can apply to an explanatory report where the officer does

not provide evidence in a disciplinary hearing. (

b) Whether the statements of Constables Hopper and Svinth-Lassen are explanatory reports in whole or in part [ 72 ] The onus of proof is on the CPS Officers to establish privilege.

They claim the privilege arises from statutory protections for explanatory reports, so they must prove their statements were explanatory reports under s 10(3) of the Regulation . [ 73 ] Counsel for the Applicants initially (in their first written brief) asserted as fact that Constables Hopper and Svinth-Lassen were asked to provide explanatory reports and/or interviews, and submitted to interviews at which they gave involuntary statements (Applicants’ Brief filed January 21, 2022, paras 6, 8 and 9). [ 74 ] The Respondent agreed that Constables Hopper and Svinth-Lassen provided interviews under s 10.1 of the Regulation , rather than explanatory reports, and submitted that the protections cited by the Applicants do not apply to such interviews.

This led to the Applicants’ counsel backtracking somewhat in rebuttal, by stating that there is no evidence that any officer was directed to an interview under s 10.1, that an explanatory report can be in interview form, and that the interview was simply the manner in which the explanatory reports were provided. [ 75 ] Explanatory reports are governed by s 10 of the Regulation .

Explanatory reports are made “in the police officer’s own words setting out his version of the subject-matter of the complaint” ( Regulation , s 10(2), 10(3)(a), quoted at para 22 above). [ 76 ] In contrast, the s 10.1 interview process contemplates a direction “to attend at an interview and answer questions” ( Regulation , s 10.1(1)) and where practicable “the interview shall be recorded by audio recording or video recording” ( ibid , s 10.1(4)). [ 77 ] There is a clear distinction between explaining events in one’s own words and being subjected to a potentially open ended question and answer session by an investigator.

The latter exposes the subject to a far greater risk, such as being confronted with inconsistencies or ambiguities or being asked questions to which one might not recall answers or be able to provide convincing answers. The entire session must be recorded where practicable. [ 78 ] The drafters of the Police Act and Regulation had two opportunities to explicitly extend the regulatory protections to interviews yet did not do so. The first opportunity was when the interview process was added as s 10.1 to the Regulation in 2008 (AR 136/2008, s 6). At that time,

section 10 of the Regulation provided that involuntary explanatory reports were inadmissible in proceedings under the Police Act , and s 51 of the Police Act protected voluntary explanatory reports. The drafter did not include any restriction on admissibility or use of interviews. The second opportunity was the amendment of s 51 of the Police Act in 2010 to extend its protection to involuntary explanatory reports ( Police Amendment Act, 2010 , SA 2010, c 21 , s 18). The legislator must have known in making the 2010 amendments that the s 10.1 interview was also an involuntary process.

They did not amend the Act to extend the statutory protection to interviews. [ 79 ] I find that interviews are not explanatory reports that are subject to the explicit protections of the Police Act and Regulation . [ 80 ] As mentioned earlier, the records indicate that each of Constables Hopper and Svinth-Lassen attended an interview. The investigator prepared summaries of the interview. The summaries record that each constable received an “Explanatory Report blurb” directing them to provide a statement, agreed to provide an involuntary statement, then were subjected to follow-up questions.

In contrast, there is no evidence that Constable Slaney (who provided an explanatory report) was subjected to follow-up questioning or attended with or was questioned by an investigator (Ms Frost’s affidavit, Exhibit 1, file 06, indicates that Constable Slaney also left a voice message with the investigator after submitting his explanatory report, but the content or reason for the message does not appear from the record). [ 81 ] The Applicants’ evidence does not disclose how or why Constables Hopper or Svinth-Lassen attended interviews. Neither officer gave evidence on this application.

I only received an affidavit from the City of Calgary Law Department’s legal assistant appending the Records. [ 82 ] The Applicants’ counsel submitted that there is no evidence that the constables were directed to attend an interview. This does not assist in deciding the issue. The Applicants bear the onus of proof that their statements are privileged, and they are the ones who could have provided the necessary evidence to support their claim and clarified how they came to be at interviews. [ 83 ] The Applicants did not provide evidence of the content of the “Explanatory Report blurb”.

The interviews were recorded but the recording is not in evidence or available to me. Perhaps there are different blurbs for various occasions, including compelled interviews. Was the discussion to the effect that the officers had not provided explanatory reports as previously demanded and consequently, were being interviewed and directed to start by describing the events in their own words before the questioning?

Was the discussion to the effect that the officer was given the option at the commencement of the interview to provide an explanatory report? [ 84 ] The Applicants could have provided evidence clarifying the process recorded in the interview summaries for Constables Hopper or Svinth-Lassen but did not do so. I was not asked to make an adverse inference for failing to provide evidence and I do not do so.

Nevertheless, there are significant gaps in the evidence that would force to me to attempt to reconstruct by speculating about the process. [ 85 ] Even if the constables had provided explanatory reports at the outset of the interview, the follow up question and answer sessions were not explanatory reports. The question and answer sessions cannot be fully understood without accessing the statements on which the questions were based.

Consequently, this process was not an explanatory report contemplated by s 10(3). [ 86 ] Constables Hopper and Svinth-Lassen as Applicants bear the onus to show they provided explanatory reports. They have not met the onus.

(

c) Whether s 51 applies only if the statements are inculpatory; and, if so, whetherthe statements are inculpatory [87] Although s 51 of the Police Act purports to apply only where the statement is inculpatory (as I have defined this term in para21 above), the Applicants submit that s 51 applies regardless whether the statement is inculpatory or exculpatory.

I outlined theirsubmission on this point at para 51 above. [88] The Respondent submits the statements must be shown to be inculpatory and are not inculpatory. [89] The Applicants’ position would require me to re-write the plain wording of s 51 of the Police Act. It is not appropriate to doso. The words are clear. Implementing the statutory objective does not require the words to be ignored. Rather, the protections are not asrobust as the Applicants suggest. [90] The cases that the Applicants rely on do not discuss the contents of the statements.

That may only mean their nature was not inissue, the point was not raised, or the statements were inculpatory. It does not necessarily mean that the judges hearing those casesdecided that the statutory requirements should be over-ridden. [91] The statements in the present case meet the requirement of being inculpatory under s 51 because they tend to establish one ormore of the elements of the alleged civil wrongs (see the discussion in R v Nedelcu, 2012 SCC 59 at paras 16-30). The Plaintiff allegesassault by the police.

The liability issues include whether the arrest was lawful and if so, whether the force used was reasonable. Anyexpress or implied admission of physical contact would suffice to make the statements inculpatory. The statements describe theinteractions between the CPS officers and the Plaintiff and therefore identify the officers who participated in the alleged assault. Inaddition, Constable Slaney provided a statement about the use made of his notes and records, that could potentially be used to prove thedefamation claim. (

d) Whether the protections of s 51 of the Police Act and s 10 of the Regulationcreate a statutory privilege including under the FOIP Act [92] The Applicants claim a statutory privilege arises from sections 51 of the Police Act and 10 of the Regulation. The Applicantsdo not ask the Court to find a common law privilege under the well known Wigmore test (Wigmore on Evidence, vol. 8 (McNaughtonrev. 1961), § 2285) described below (para 96). The question is whether the legislators or regulation makers created a statutory privilege.

Section 51 of the Police Act [93]

Section 51 protects inculpatory hearing evidence or explanatory reports from being “used or received against the police officer... in any civil proceeding or in any proceeding under any other Act, except in a prosecution for or proceedings in respect of perjury or thegiving of contradictory evidence”.[4] The word “used” means for any purpose (Bonderove at para 8). [94] Does the statutory protection of s 51 amount to a statutory privilege? [95] Privileges ordinarily function as rules of evidence protecting against collection or presentation of information in a proceeding (Paciocco et al, The Law of Evidence (8th ed, 2020) at p 288; Sopinka, Lederman and Bryant, The Law of Evidence in Canada (5th ed,2018 at para 14.1).

Some confer substantive rights to confidentiality beyond legal proceedings (eg, solicitor and client privilege:Descôteaux et al. v. Mierzwinski, (SCC)). [96] In M. (A.) v Ryan, (SCC) the Court described privileges as follows: 19 The common law principles underlying the recognition of privilege from disclosure are simply stated. Theyproceed from the fundamental proposition that everyone owes a general duty to give evidence relevant to the matter before the court, sothat the truth may be ascertained.

To this fundamental duty, the law permits certain exceptions, known as privileges, where it can beshown that they are required by a “public good transcending the normally predominant principle of utilizing all rational means forascertaining truth”: Trammel v.

United States, 445 U.S. 40 (1980), at p. 50. 20 While the circumstances giving rise to a privilege were once thought to be fixed by categories defined in previouscenturies -- categories that do not include communications between a psychiatrist and her patient -- it is now accepted that the commonlaw permits privilege in new situations where reason, experience and application of the principles that underlie the traditional privilegesso dictate: Slavutych v. Baker, (SCC), [1976] 1 S.C.R. 254; R. v. Gruenke, (SCC), [1991] 3 S.C.R. 263, atp. 286.

The applicable principles are derived from those set forth in Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), § 2285. First, the communication must originate in a confidence. Second, the confidence must be essential to the relationship in which thecommunication arises. Third, the relationship must be one which should be “sedulously fostered” in the public good.

Finally, if all theserequirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweighthe interest in getting at the truth and disposing correctly of the litigation. (Underlining added). [97] The common law test for recognizing new class or case-by-case privileges (the Wigmore test) is heavily reliant on theexistence of a confidential communication (Ryan at para 20). The common law also recognizes testimonial privileges, being a right towithhold evidence.

The best known is an accused’s non-compellability or privilege to refuse testimony altogether. Spousal privilege isanother example of a recognized testimonial privilege. [98] However, not every limitation on use or admissibility in a specific proceeding creates a privilege. Cases such as Bonderove (at

para 9) and White (at para 5) recognize the existence of both statutory use limitations and privileges[5]. The Court of Appeal inBonderove does not mention the existence of a privilege over Bonderove’s hearing transcript at all. [99] When presented with the possible options of a statutory use limitation or legal privilege, how does one determine thelegislative meaning? The general approach to statutory

interpretation is that “the words of

an Act are to be read in their entire context andin their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”(Rizzo & Rizzo Shoes Ltd (Re), , [1998] 1 SCR 27 at para 21). Further, “[a]n enactment shall be construed as beingremedial, and shall be given the fair, large and liberal construction and

interpretation that best ensures the attainment of its objects.”(Interpretation Act, s 10). [100] In the context of a statutory privilege, the Court should consider whether the legislature intended to create the strong protectionof a privilege by considering whether the limitations were imposed for a “public good transcending the normally predominant principleof utilizing all rational means for ascertaining truth” (Ryan at para 19). [101] The word “privilege” has a well known legal meaning. The CPS Officers’ statements do not fall into a recognized classprivilege.

In dealing with information outside of the established categories of class privilege, the Wigmore approach is usually used toascertain the existence of a privilege. [102] The Wigmore criteria are not “carved in stone”, but rather they “provide a general framework within which policyconsiderations and the requirements of fact-finding can be weighed and balanced on the basis of their relative importance in the particularcase before the court” (R v Gruenke, (SCC), [1991] 3 S.C.R. 263 at p 290). [103] The Wigmore criteria are helpful in deciding whether the legislature intended a privilege as opposed to a use limitation. [104] I will briefly review the holdings of the authorities cited by the Applicants or discussed in such authorities.

Some of the casesare obiter because they concerned information other than testimony under similar statutory protections (A v L and Corlett). Some do notsupport the CPS Officers’ position because they did not explicitly characterize the information as privileged (Duarte, Bonderove). TheSzybunka case is on point, though it is equally consistent with a statutory prohibition as opposed to a privilege. In some of the cases thestatute explicitly imposed confidentiality over the information (Loepkky v Urshel at pp 15-16; A v L at para 17; Bonderove; Lowe; Auerat para 10 and cases cited therein).

One decision is incorrect, and I refuse to follow it (Johnston). [105] Justice Beilby’s characterization, in A v L, of a regulated professional’s evidence in a disciplinary hearing as privileged, wasobiter because there was no such evidence under consideration. Justice Bielby rejected the submission that any other records in theregulator’s disciplinary file were privileged at common law under the Wigmore test.

The A v L case does not cite the version of theChiropractic Profession Act, SA 1984, c C-9.1 that was under consideration[6], though Justice Bielby observed at para 17 that the statuterequired disciplinary proceedings be held in private. [106] Similarly, in Corlett, Justice Moreau accepted that the statutory protection under the Real Estate Act created a privilege againstdisclosure of a witness’ evidence at a hearing. That statement was also obiter because the matter had not proceeded to a disciplinaryhearing.

As in the A v L case, Justice Moreau rejected the existence of a common law privilege over the other contents of the regulator’sinvestigation file. [107] In Duarte, Master Breitkruez referred to the statutory protection of a lawyer’s evidence in a regulatory investigation as animmunity or a statutory protection, not a privilege.

I pause to note that in lawyer discipline, privileges might apply more readily to alawyer’s evidence or response to a complaint because the matters under inquiry are usually subject to solicitor and client privilege orother established class privileges (see Simon v Feeney, 2020 ABQB 641 at para 57, aff’d 2022 ABCA 253 at paras 28-31). The uniqueconsiderations that apply to the lawyers’ discipline process are not applicable in the case before me. [108] In Bonderove the Alberta Court of Appeal did not characterize the transcript of evidence taken under a statutory provisionsimilar to s 51 as privileged.

It said the scheme was a statutory prohibition. The Court refused to order production of the transcript. Thisdecision is equally consistent with the propositions that the transcript was not relevant in the civil action because it could not be used forany purpose, or the Court was enforcing a use immunity or statutory prohibition rather than a privilege. Subsequent decisions such as A vL have accepted that Bonderove found the testimony to be privileged. [109] In Johnston, Master Quinn held that absolute privilege applied to statements under the Police Act because they were made in aquasi-judicial proceeding.

In this regard, he relied on the defensive privilege that applies in defamation proceedings. With the greatest ofrespect, this decision conflates a defensive privilege with an evidentiary or disclosure privilege. I decline to follow Johnston.

Section27(2) of the FOIP Act is concerned with evidentiary or disclosure privileges not defensive privileges. [110] In Szybunka the Court agreed with the fatality inquiry judge that an explanatory report under the Police Act was privileged.However, the result is equally consistent with a use restriction and it not apparent that the point was argued. [111] I pause to note another example (not cited by counsel) of such a scheme being characterized as a statutory privilege.

In Mustard(next friend of) v Oldham, 2005 ABQB 193, Justice Lee observed (in obiter dicta) that testimony subject to similar statutory protectionsas in the present case, under the Teaching Profession Act, RSA 2000, c T-2, s 36(2), would be privileged. As was the case in A v L andCorlett, there was no such testimony. Rather, the information sought was an agreed statement of facts and joint submission on penalty.

The Court concluded - contrary to the holdings in A v L and Corlett - that an agreed statement of facts and joint submission on penalty inthe disciplinary process against the individual defendant was subject to common law privilege and not producible to the plaintiff under athird party records production order against the Alberta Teachers Association. [112] In the motor vehicle cases (Lowe; Auer at para 10 and authorities cited therein – see para 52 above) the Alberta Court of Appealhas long characterized compelled driver’s reports in the event of an accident as privileged.

The legislation provides that the statement isnot open for public inspection and is not admissible in evidence for any purpose (with limited exceptions including proving the identityof the drivers).

[113] I have had regard to the Wigmore principles to help ascertain the legislative intent. [114] I agree with Judge Daniel in R v Mai, (AB PC) at para 43 that confidentiality is implied under theregulatory regime of the Police Act and Regulation. The Alberta Court of Appeal has emphasized the public policy consideration ofpromoting full and frank disclosure in professional disciplinary matters (para 70 above).

Confidentiality is a common element ofcomplaint processes before a matter is referred to hearing. [115] The legislature must have intended that any confidentiality was to support the regulatory process, not to defeat the process. Itmust have intended that any confidentiality is subject to the legitimate needs of the discipline process, including regulatory disclosure tomaintain public confidence in the process and in the police force. [116] Contrary to the Appellants’ submissions, the regulators control disclosure of investigative information for legitimate regulatorypurposes.

There is no indication in the statute, and no rationale in an open, effective and transparent discipline system, for aconfidentiality or privilege that would defeat disclosure for legitimate regulatory purposes. [117] Such disclosures may occur, for example, through a public hearing, through recitation of the evidence in a complaint decisionunder s 47(5) of the Police Act, by publication of the record at the conclusion of a Law Enforcement Review Board appeal, or provisionby the Board of access to an appeal record for appeal participants. [118] The first branch of the Wigmore test is met because confidentiality is implied, subject to regulatory disclosure at the appropriatetime and in the appropriate circumstances.

The fact that confidentiality may be lost in some circumstances does not weigh against apossible privilege because many privileges end on the occurrence of certain events.

The legislature provided a stronger protection againstadmissibility because the prohibition does not end upon public disclosure of the evidence. [119] The second branch of the Wigmore test is whether the confidentiality of the statements was considered essential to the full andsatisfactory maintenance of the relation between the parties – CPS Officers and the CPS. [120] In Mai at para 60, Judge Daniel agreed with the observations of the Ontario Court of Appeal in R v Delong, (ON CA), quoting from Campbell v Paton et al, (ON SC), leave to appeal refused, 26 OR (2d) 19 (Div Ct): ...

To accede to that argument would result in my doing a disservice to the vast majority of police officers who I expect would candidlyand fully provide the Complaint Bureau with information that is considered to be relevant to a given complaint whether or not theirreports were confidential. [121] For most regulated members, the potential for disclosure probably enhances, rather than diminishes, the care and attention thatwill be taken in reporting the events (Corlett at para 62). I do not wish to suggest that most police officers or other professionals requireconfidentiality as an inducement to be candid.

Nevertheless, some might require encouragement. The Court of Appeal has oftenemphasized that the objectives of these types of provisions is to promote full and frank disclosure (White at para 5; Bonderove at para 5;Auer at para 10). The legislature should be taken as having this objective in mind. [122] There are other important reasons underlying the statutory protections. Complaint processes should be focussed, streamlinedand efficient, not unduly complex or burdened by the temptation to address or strategize over collateral things like civil suits.

Allowingthird parties to routinely obtain advance disclosure for contemplated civil or other proceedings simply by lodging a complaint with atarget’s professional regulator can lead to abuse. The potential for disclosure of investigation materials for collateral purposes canbecome unduly disruptive of the complaints investigation system. [123] I cannot find on the present record that the protections are an essential element to an effective process. The CPS Access andPrivacy

Section appears to have disclosed officers’ statements in access requests for a lengthy period of time before it changed its policyin early 2021 but there is no evidence that the process was unduly disrupted by such disclosure. Nevertheless, there is a strong publicinterest in providing for a balanced, efficient and fair process, and the legislature should be taken as having this public interest in mind. [124] As to the third branch of the Wigmore test, the relationship between the officer under investigation and the internalinvestigatory body is one which should be fostered by the community.

I adopt Judge Daniel’s comments in Mai as follows: 64 It is clearly in the community's best interest that a full and complete investigation of police actions be undertaken in each andevery case of complaint so police actions may be closely scrutinized and the public protected from inappropriate, irresponsible andunlawful police be​haviour.

It is in the interests of the police officers themselves, as well as the community at large, that the validity ofany complaints about how the police discharge their duties on behalf of the community be determined in a formal and fair way. [125] As to the fourth branch, the potential injury that would result to the complaint investigation system would outweigh the publicinterest in favour of obtaining all available evidence for the purpose of a civil action against a police officer.

Civil procedure in Albertaoffers effective rights of pre-trial discovery wherein potential defendants can be identified, and generous rights to amend proceedings andjoin additional wrongdoers who are identified during the process. A party’s evidence can be extensively tested before trial through pre-trial questioning.

These procedures substantially reduce any need for making statements gathered from officers in complaintinvestigations available in civil actions. [126] Also, there is a strong public interest in prohibiting the use of statements from discipline proceedings, in provincial offenceproceedings against the police officer. This interest is also reflected in the Alberta Evidence Act, s 6. [127] In this case I am deciding if the legislature imposed a statutory privilege, not whether I would find a common law privilege.

Theultimate question is whether the legislature imposed the limitations for a “public good transcending the normally predominant principleof utilizing all rational means for ascertaining truth” (Ryan at para 19). If it did so, then it created an evidentiary privilege. [128] The legislature imposed a wide prohibition on admissibility and use in civil actions and provincial proceedings against the

officer who provided the evidence or explanatory report. These protections are coupled with implied confidentiality protections over the investigative stage of the proceeding subject to disclosure in the regulatory process.

The protections are driven by strong public interest considerations. [ 129 ] In view of my conclusion of implied confidentiality imposed at the investigative stage, I find myself unable to distinguish the present case from the findings of statutory privilege in the Auer and Lowe cases nor any compelling reason to depart from the findings or observations about the effect of similar statutory protections in A v L , Loeppky , Corlett , and Mustard or the finding in Szybunka that s 51 creates a privilege (though I do not agree with the scope of the privilege applied in that case, where the proceeding was a fatality inquiry and not against the officer whose evidence was in issue). [ 130 ] Taking the above into account, I conclude the legislature imposed a statutory evidentiary privilege over hearing evidence and explanatory reports under s 51.

This privilege applies to a police officer’s inculpatory [7] hearing evidence or explanatory report in civil actions and provincial offence proceedings against the officer, but does not limit regulatory disclosure or use for regulatory purposes, and is subject to the statutory exceptions relating to perjury or giving inconsistent evidence.

Section 51 is aimed at proceedings against an officer. It follows that the privilege has no potential application in offence proceedings against other accused persons. [ 131 ] Although this evidentiary privilege has limitations in scope and duration, it appears to fall within “any type of legal privilege” under s 27(1) of the FOIP Act . [ 132 ] The statutory privilege asserted by the Applicants does not apply to the interviews of Constables Hopper and Svinth-Lassen under s 10.1 of the Regulation .

These are a distinct proceeding that the legislature has not protected from use or admissibility (paras 75- 79 above). The mere fact of implied confidentiality of an interview (until disclosed in a regulatory process such as a hearing or reasons for dismissing a complaint) is not sufficient to find the more powerful protection of a privilege. (

d) Section 10 of the Regulation [ 133 ]

Section 10 of the Regulation provides that involuntary explanatory reports “shall not be admissible in evidence in any proceedings carried out under the Act, except to prove that the statement is false”. [ 134 ] In respect of their claim of privilege under the Regulation , the CPS Officers submit that this civil action is a proceeding under the Police Act , citing Master Quinn’s decision in Johnston at para 17 . [ 135 ] The Applicants observe that the Police Act provides for civil suits arising from police actions by making the chief of police liable for a tort committed by a police officer or other employee of the police service ( Police Act , s 39).

The council of the municipality must indemnify the chief of police for such liability. The individual police officer who committed the tort is also liable, and the municipality may indemnify them ( ibid ). Johnston holds that such a claim is a proceeding under the Police Ac t. [ 136 ] I do not agree with Master Quinn’s conclusion in Johnston . [ 137 ] The Police Act creates the police force, provides for its organization and administration, and provides for the vicarious liability of its chief of police and the police chief’s indemnity by the municipality. These are internal, organizational matters.

Actions against the force, individual members, or the chief of police for torts such as assault and defamation are proceedings under the common law. It is no different than an action against a corporation for common law torts committed by its employees. These are not actions under the Business Corporations Act or other corporation statutes simply because a defendant is organized under such a statute.

Similarly, the Plaintiff’s claim for Charter damages under s 24(1) of the Charter cannot be reasonably characterized as an action under the Police Act . [ 138 ] Therefore, s 10 of the Regulation does not apply to a civil action. Is the limitation on admissibility in proceedings under the Police Act enough to create a statutory privilege for the purpose of s 27(2) of the FOIP Act ? [ 139 ] If there is a hearing under the Police Act , involuntary explanatory reports cannot be admitted in evidence ( Regulation , s 10(4)).

This does not preclude use of the report for other regulatory purposes including screening complaints under subsection 45(3) or deciding complaints under subsection 45(4) of the Police Act without a hearing ( Regulation , s 10(6)). [ 140 ] The Applicants’ counsel submitted that the Chief Constable breached the CPS Officers’ privilege in disclosing the content of their statements in his letter decision to Mr Rysdyk as complainant. This submission is directly contrary to s 10(6) of the Regulation . The Chief Constable is obliged (under s 47(5)(

d) of the Police Act ) to provide reasons for dismissing a complaint under s 45(4) and has discretion to include in their reasons information from the police officers to provide meaningful and transparent explanations to complainants and maintain public confidence in the discipline system. [ 141 ] I conclude that s 10 imposes a narrow inadmissibility applicable to formal discipline hearings. [ 142 ] As with s 51, the Wigmore test assists in deciding if the drafter of s 10 intended to make explanatory reports privileged.

I accept the regulatory structure implies confidentiality over the reports unless and until their content is released under the regulatory process, such as through reasons for disposing of a complaint. However, the narrow limitation on admissibility imposed by s 10 of the Regulation alone is not enough to demonstrate an intention by the drafter that the reports are privileged. (

e) If the statements are privileged, whether privilege was waived [ 143 ] The Applicants submit that disclosure under the FOIP Act did not waive privilege. They submit that the public body could not waive privilege under s 27(2) of the Act . [ 144 ] The Respondent agreed that if any of the materials are privileged or inadmissible, the CPS Officers did not waive such protections.

[ 145 ] I find the Applicants have not waived their rights.

VII Whether to remove the Plaintiff’s counsel [ 146 ] The Applicants submitted the Plaintiff and his counsel breached the Applicants’ privilege and therefore the Plaintiff’s counsel should be barred from representing the Plaintiff in the civil action. [ 147 ] The governing authority in deciding whether to remove counsel in cases of breach of privilege is Celanese Canada Inc v Murray Demolition Corp , 2006 SCC 36 . [ 148 ] The task “is to determine whether the integrity of the justice system, viewed objectively, requires removal of counsel in order to address the violation of privilege, or whether a less drastic remedy would be effective” ( Celanese at para 56). [ 149 ] The Court in Celanese suggested several factors that might be considered in deciding matters of remedy, and recognized other factors might present themselves in different cases: 59 In helpful submissions, the interveners Advocates’ Society and the CBA suggest a number of factors to be considered in determining whether solicitors should be removed: (

i) how the documents came into the possession of the plaintiff or its counsel; (ii) what the plaintiff and its counsel did upon recognition that the documents were potentially subject to solicitor-client privilege; (iii) the extent of review made of the privileged material; (iv) the contents of the solicitor-client communications and the degree to which they are prejudicial; (

v) the stage of the litigation; (vi) the potential effectiveness of a firewall or other precautionary steps to avoid mischief.

Other factors may, of course, present themselves in different cases, but I agree that the foregoing list of factors is appropriate and seems to me sufficient to dispose of the present appeal. [ 150 ] The onus is on the Respondent to rebut the existence of prejudice to the Applicants from the disclosure ( Celanese at paras 42, 48-51). [ 151 ] I refuse to remove Mr Engel from representing Mr Rysdyk in this lawsuit based on the privilege applicable to Constable Slaney’s explanatory report under s 51 of the Police Act .

I would come to the same conclusion had I found the interviews of Constables Hopper and Svinth-Lassen to be privileged. [ 152 ] As mentioned earlier, the Chief Constable was entitled to consider the CPS Officers’ statements in dismissing the complaint without a hearing and was obliged to give reasons to the complainant for the dismissal. The Chief Constable had discretion as to the degree of detail provided to the complainant.

It is not appropriate in this application, which is not a judicial review and is not on notice to the decision maker or the Attorney General of Alberta, to collaterally attack the scope of the Chief Constable’s disclosure in pursuing his statutory duties under the Police Act . If it were, I would find the disclosure is both fair and reasonable.

I have no concerns over breadth of the disclosure to the Plaintiff in the Chief Constable’s reasons. [ 153 ] Therefore, there is no reasonable expectation of confidence over any of the evidence disclosed in the Chief Constable’s decision. [ 154 ] I turn to the factors set out in the Celanese case. How the Plaintiff obtained the Records. [ 155 ] The Records were provided to the Plaintiff by CPS ’s Privacy and Access

Section in response to a lawful request under the FOIP Act . Where s 27(2) of the FOIP Act applied, the Plaintiff did not violate the privilege, rather CPS violated the privilege. Although the privilege holders objected to production of the Records in the civil action, CPS has not provided evidence that it overlooked the issue or acted inadvertently. At best, it changed its

interpretation of its obligations in early 2021. [ 156 ] The privilege required that the statements be inculpatory. Given the largely exculpatory nature of the Records, having received the Chief Constable’s decision dismissing the complaint, and having received the Records from an apparently sophisticated and experienced governmental authority, it would have been at most an error in judgment to assume there was any issue over the status of the Records.

Most lawyers likely would not have seen an issue in holding the information, similar to the situation in Bonderove where the plaintiff obtained the transcript form other sources but could not compel the defendant to produce it. What the plaintiff did on recognition the Records were potentially privileged. [ 157 ] The Applicant submits Mr Engel ought to have sealed the records and sought a court ruling. Counsel cited cases imposing this duty where the mistake was obvious. [ 158 ] In this case, the mistake was not so obvious. There was a genuine dispute over the status of the Records.

In these circumstances, Mr Engel was obliged to secure the documents and refrain from using them pending determination of the issue ( Floate v Gas Plus Inc , 2015 ABQB 545 at para 46 ; Law Society of Alberta Code of Conduct, Rule 7.2-13 [4]). [ 159 ] Rather than taking steps to secure the records and determine the issue, Mr Engel pressed his demand to commence pre-trial examinations and did not apply to the Court for directions. This was not an appropriate response.

The extent of review of the privileged material . [ 160 ] Mr Engel provided the privileged material to the client within days of receipt from CPS , before a privilege claim was advanced. Mr Engel or his law firm reviewed the records around the same time.

The content of the privileged material and the extent to which it is prejudicial. [ 161 ] The Court presumes a real risk of prejudice absent evidence to the contrary. [ 162 ] The statements tend to expose the maker to liability because they address the use of force on the Plaintiff during the arrest. Constable Slaney’s statement also addresses some aspects of the defamation claim. See para 91 above. [ 163 ] A significant amount of the information over which the Applicants claim privilege was disclosed in the Chief Constable’s letter.

That disclosure was not improper and terminated any confidentiality that otherwise applied to the disclosed information. [ 164 ] Technically the statements remain privileged from use in the civil action, but I do not see any merit to the suggestion that a lawyer should be removed because they are aware of information that the legislature contemplated could be publicly disclosed and was disclosed in the complaint process. These circumstances are distinguishable from the solicitor and client privilege in the Celanese case, where the information remained confidential.

Requiring lawyers to remove themselves because they obtained knowledge from legitimate non-confidential disclosures would extend the protection of

section 51 far beyond what is reasonable. Therefore, prejudice could only arise from disclosure of portions of the statements that were not disclosed in the Chief Constable’s letter. The content of these statements is mostly exculpatory, not inculpatory. Any prejudice is minimal. [ 165 ] Further, the CPS Officers admitted in their statement of defence that they used force on the Plaintiff.

The inculpatory nature of the statements has been largely overtaken by this admission. [ 166 ] At worst, the Applicants might be challenged while testifying on some future occasion that their testimony is inconsistent with their prior exculpatory statements.

Bonderove held the statements could not be used for any purpose but did not explicitly address whether the exemption for “prosecution for or proceedings in respect of perjury or the giving of contradictory evidence” includes challenging a witness with a prior inconsistent statement in the manner prescribed by sections 22 and 23 of the Alberta Evidence Act . [ 167 ] If such a challenge is prohibited, then the trial judge will not permit Mr Engel to put the alleged prior inconsistent statement to the witness.

If such a challenge is permitted, the objective of finding the truth substantially outweighs any concern that Mr Engel might have discovered the possible inconsistency because he read privileged statements provided by the CPS Privacy and Access Section. I do not see any material prejudice in these circumstances. The stage of the litigation. [ 168 ] The litigation is in its early stages, because it has not progressed beyond records production. The Respondent submits there are practical and financial challenges to litigants in bringing cases of this type.

This is not a complex matter on which I would expect a client to have already expended legal fees that would be lost if the client were forced to change counsel. Nevertheless, Mr Rysdyk may have financial challenges that his current counsel are accommodating or may not be able to afford any cost of changing counsel. He has not provided evidence of these possibilities. Absent such evidence, I cannot infer that the Plaintiff would be seriously prejudiced in changing lawyers. [ 169 ] On the other hand, there are e

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