Calgary Police Association v Calgary (City), 2023 ABKB 549

Court of King’s Bench of Alberta Citation: Calgary Police Association v Calgary (City), 2023 ABKB 549 Date: 20230929 Docket: 2201 04049 Registry: Calgary Between: Calgary Police Association Applicant - and - Calgary (City) and Alberta Labour Relations Board Respondents _______________________________________________________ Reasons for Decision of the Honourable Justice J.T. Eamon _______________________________________________________ I Introduction [ 1 ] The Police Act , RSA 2000, c P-17 provides the framework for complaints and discipline relating to conduct of police officers in Alberta.

This case concerns a dispute between the Applicant Calgary Police Association (“CPA”) and the Respondent City of Calgary whether civilian employees of a police service can investigate conduct complaints against police officers under the Police Act , or whether such investigations can only be carried out by other police officers.

[2] The Calgary Police Service (“CPS”) is a municipal police service established by the City under the Police Act. The CPA isthe bargaining agent for Calgary police officers under the rank of inspector under a collective agreement with the City. [3] Historically, the CPS assigned police officers to investigate conduct complaints against other CPS police officers. In early2020, the City decided to fill vacant investigator positions with civilian investigators, to investigate certain types of complaints againstpolice officers. [4] The CPA disagreed with the City’s decision.

It contended that investigators of police conduct complaints must be policeofficers. In late 2000, it applied to the Alberta Labour Relations Board (“Board”) for a determination that only police officers mayinvestigate such complaints. It asserted that the City’s decision to employ civilian investigators violated section 36(3)(

a) of the PoliceOfficers Collective Bargaining Act, RSA 2000, c P-18 (“POCBA”) and applied to settle a difference between the City and the CPAarising under their collective agreement pursuant to

section 40 of the POCBA. [5] In the application to the Board, CPA contended that persons appointed to conduct “police duties and duties incidental topolice duties” must be police officers and members of the bargaining unit under the POCBA. These duties include conduct complaintinvestigations because

section 45 of the Police Act requires that such investigations be conducted exclusively by police officers.

TheCity’s decision to assign such roles to civilians infringed those requirements. [6] The City responded that the Police Act does not limit the discretion of the chief of police to assign civilians to conductcomplaint investigations. [7] The Board found, in its decision of March 3, 2022 (Calgary Police Association v Calgary (City), (ABLRB) (the “Board’s Reasons”)) that the chief of police is not restricted to using police officers in conducting investigations into conductcomplaints. [8] The CPA applies for judicial review of the Board’s decision. The City opposes the application.

For the reasons herein, thejudicial review application is dismissed. II Standard of review [9] CPA claimed that the City breached section 36(3)(

a) of the POCBA, and applied to settle the difference between the CPAand the City under their collective agreement, concerning the application or operation of the POCBA (POCBA, sections 38(1), 39(10)and 40). [10] The Board had authority to decide the scope of section 36(3)(

a) including the scope of “any right conferred on the policeofficer by” POCBA. In respect of the difference arising under the collective agreement, the issue stemmed from the meaning of “policingduties and duties incidental to those duties” in

section 1(

l) of the POCBA. The primary matter in issue before the Board in both matterswas the meaning of

section 45 of the Police Act – whether it required the chief of police to investigate complaints utilizing policeofficers. [11] The parties, and the Board, agree that the standard of review is reasonableness.

This does not relieve the Court fromdetermining the appropriate standard of review (Monsanto Canada Inc v Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 SCR 152 at para 6) as counsel for the Board pointed out. [12] For the reasons set out below, I accept the parties’ collective position that I review the matter on the reasonableness standard. [13] The Board has jurisdiction to exercise the powers conferred on it by or under the POCBA and to determine all questions offact or law that arise in any matter before it (POCBA,

section 45). [14] In Vavilov the Supreme Court of Canada held that the presumptive standard of review of decisions of a tribunal like the Boardis reasonableness, and established limited, specific categories requiring correctness review (Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65 , [2019] 4 SCR 653 at paras 10, 17). Additional categories may be developed in future toprovide for other exceptional cases requiring correctness review (Vavilov at paras 69 and 70; Society of Composers, Authors and MusicPublishers of Canada v.

Entertainment Software Association, 2022 SCC 30 at paras 26, 27, and 28). [15] In this case, the Board was interpreting and applying one of its home statutes (POCBA), which required it to ascertain thecontent of policing duties under the Police Act for the purpose of Alberta labour law.

This typically attracts the reasonableness standard.The parties collectively proposed this standard and I will accept it for the purposes of this case. [16] Nevertheless, if the point had been contested, I may have concluded that the appropriate standard is correctness. [17] The categories rebutting the reasonableness standard include where courts and administrative bodies have concurrent firstinstance jurisdiction over a legal issue in a statute (Society of Composers, Authors and Music Publishers of Canada at para 28). [18] The Board is not the only tribunal or decision-maker that is concerned with the meaning of

section 45 of the Police Act. Insome cases, the Law Enforcement Review Board has jurisdiction over appeals from conduct complaints (Police Act,

section 48 except inthe case of a

summary dismissal under subsections 45(4) and (4.1)).

Summary dismissals of complaints may be judicially reviewable bya Court, at least on the application of the officer who was disciplined. Such proceedings could engage procedural fairness issuesincluding whether a conduct complaint investigation was lawfully conducted in compliance with

section 45. [19] The parties did not address whether the overlapping forums where the meaning of

section 45 might be decided and thenecessity or desirability of consistency in the meaning of

section 45, would point to a correctness standard for reviewing the Board’sdecision about the meaning of

section 45. However, as will be apparent from the reasons that follow, I would have come to the same

conclusion after applying either standard and I am prepared to assume without deciding that the parties’ collective position on standard of review is appropriate. III Statutory scheme [ 20 ] Interpreting

section 45 requires an understanding the objectives of a police service, and the roles of the chief of police in operating the police service and dealing with conduct complaints. [ 21 ] The CPS is the municipal police force established and maintained by the City under

section 27 of the Police Act . The municipality, having assumed responsibility to establish a municipal police service, is obliged to establish and maintain an adequate and effective municipal police service under the general supervision of a municipal police commission ( Police Act , section 27(1) ). [ 22 ] The commission’s oversight responsibilities include ensuring that sufficient persons are employed for the police service for the purposes of carrying out the functions of the police service ( Police Act , section 31(1) ).

The commission may conduct an inquiry into any matter respecting the police service or the actions of any police officer or other person employed for the police service ( Police Act ,

section 32 ), and must appoint a public complaint director who essentially oversees the complaint process ( Police Act ,

section 28.1 ). The director may not be a currently serving police officer ( ibid ,

section 28.1(2.1) ). [ 23 ] The employer may employ both police officers and others for the police service ( Police Act , section 29(1) (a)(i)), and the commission must ensure that sufficient persons are employed for the police service for the purposes of carrying out the functions of the police service ( ibid , section 31(1) (d)). [ 24 ] The commission appoints the chief of police. In turn the chief of police must exercise their duties and responsibilities under

section 41 of the Police Act : 41(1) The chief of police of a police service established under

section 24, 27 or 33.1(1) is responsible for the following: (

a) the preservation and maintenance of the public peace and the prevention of crime within the municipality; (

b) the maintenance of discipline and the performance of duty within the police service, subject to the regulations governing the discipline and the performance of duty of police officers; (

c) the day to day administration of the police service; (

d) the application of professional police procedures; (

e) the enforcement of policies made by the commission with respect to the police service.

(2) For the purposes of subsection (1), the chief of police shall issue orders and make directives as the chief of police considers necessary.

(3) The chief of police is accountable to the commission for the following: (

a) the operation of the police service; (

b) the manner in which the chief of police carries out the responsibilities under subsection (1); (

c) the administration of the finances and operations of the police service in keeping with the yearly plan or any amendments to it that the commission may make; (

d) the reporting to the commission of any information concerning the activities of the police service that the commission may request, other than information concerning individual investigations or intelligence files; (

e) the reporting to the commission of any complaint made against the police service or its members, the progress of any investigation or informal resolution process regarding the complaint, the reasons for any delays and the manner in which the complaint is resolved. [ 25 ] A commission can issue instructions to a chief of police under section 31(1)(

c) but may not issue an instruction that is inconsistent with the duties and responsibilities conferred on the chief of police under

section 41 ( Police Act , section 41(5) ). [ 26 ]

Part 5 of the Police Act provides for a complaints and discipline process. The legislative structure provides for complaints concerning the actions of a police officer (which I refer to as a conduct complaint) and concerning policies of or services provided by a police service. The latter type of complaint is not in issue in this case and the following discussion of the structure is directed at conduct complaints. [ 27 ] Pursuant to the Act , cabinet promulgated the Police Service Regulation , Alta Reg 356/1990 (the “ Regulation ”), which defines the varieties of misconduct ( Regulation ,

section 5 ), creates some investigatory tools that can be used in an investigation ( Regulation , sections 10 through 10.6), and provides for hearing procedures (Regulation , sections 11 – 16). [ 28 ] Specified members of the public may make a complaint of conduct respecting police officers ( Police Act ,

section 42.1 ). Complaints against officers other than the chief of police, are directed to the chief of police and complaints against the chief of police are directed to the chair of the commission ( Police Act ,

section 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 ( Police

Act , section 45(1) ). The results of the investigation are provided to the chief of police, who then decides on required actions ( Police Act , section 45(2) ). [ 29 ] If, after causing the complaint to be investigated, the chief of police is of the opinion that the actions of a police officer may constitute (

a) an offence under

an Act of the Parliament of Canada or the Legislature of Alberta, the chief shall refer the matter to the Minister of Justice, or (

b) a contravention of the regulations governing the discipline or the performance of duty of police officers, the chief shall cause the matter to be proceeded with under section 45 (3) ( Police Act , section 45(2) ). [ 30 ] Under section 45(3), the matter must be directed 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 ), but 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 , section 45(4) ; see also Regulation , section 19(1) ). [ 31 ] In respect of an investigation or a hearing, subsection 45(5) provides:

(5) If a police officer is the subject of an investigation or hearing, the chief of police or the commission may request the chair of the commission to make arrangements for another police service to provide the necessary police officers to conduct the investigation, present the case or preside at the hearing, or perform any combination of those functions, as the case may be, if in the opinion of the chief of police or of the commission, (

a) there is not a police officer in the chief’s police service who has sufficient rank and experience to carry out the functions, or (

b) it would be in the public interest to have one or more police officers of another police service carry out the functions. [ 32 ] If a police officer of another police service carries out any functions pursuant to arrangements made by the chair of the commission under section 45 (5), that police officer has, for the purposes of carrying out those functions under sections 45 (1) to (4) , the same powers as a chief of police ( Police Act , section 45(6) ). [ 33 ] In serious cases, some of these complaint functions can be diverted to other entities by the Minister ( Police Act , sections 46.1 , 46.2 ).

The chief of police must notify the Minister and police commission where an incident occurs involving serious injury to or the death of any person that may have resulted from the actions of a police officer, or a complaint is made alleging that serious injury to or the death of any person may have resulted from the actions of a police officer, or there is any matter of a serious or sensitive nature related to the actions of a police officer ( Police Act ,

section 46.1(1) ). [ 34 ] In such cases, the Minister may (under

section 46.1(2)): (

a) Request or direct that another police service provide a police officer to assist and advise the police service investigating the incident or complaint. (

b) Request or direct another police service to conduct an investigation into the incident or complaint, which may include taking over an ongoing investigation at any stage. (

c) Appoint one or more members of the public as overseers to observe, monitor or review an investigation to ensure the integrity of the process of the investigation. (

d) In accordance with

section 46.2 , direct the head of an integrated investigative unit to conduct an investigation into the incident or complaint, which may include taking over an ongoing investigation at any stage. [ 35 ] In cases where the investigation is referred to another police service or the head of an integrated investigative unit, the chief of police or police officer in charge of the police service conducting the investigation makes the same assessment and referrals as provided under section 45(2); that is, the matter is either referred to the Minister if the actions of the officer under investigation appear to constitute a federal or provincial offence, or referred back to the police service under investigation for a disciplinary hearing if the matter appears to be a contravention of the regulations governing the discipline or performance of duty of police officers ( Police Act ,

section 46.1(4) ). [ 36 ]

Section 46.2 provides for integrated investigative units. An integrated investigative unit may be established by regulation to act as another police service for the purposes of subsection 46.1 ( Police Act ,

section 46.2(1) ). The Minister may designate a person as the head of the unit, and appoint peace officers under the Peace Officer Act , SA 2006, c P-3.5 as investigators. There is no explicit requirement that the head of the integrated investigative unit or the investigators employed by the unit be police officers. [ 37 ] Subject to the terms of the Minister’s authorization under

section 46.2(1), the head of the integrated investigative unit is deemed to be a chief of police, and any person acting as an investigator is deemed to be a police officer, for the purposes of sections 46.1(3), (4) , (6), (7) and (8) ( Police Act ,

section 46.2(3) ). [ 38 ] The Police Act provides similar procedures for complaints against a chief of police. These must be referred to the chair of the relevant police commission (section 43(1)). The commission may ask the Minister in certain circumstances to request or direct another police service to investigate the complaint (section 46(2)) and the Minister may do so (section 46 (2.1)).

Where a chief of police or a police officer of another police service carries out an investigation pursuant to a request or direction made under section 46(2.1), that chief or police officer has, for the purposes of carrying out the investigation, the same powers as a chief of police (section 46(2.2)).

If the chief of police or the police officer in charge of the police service requested or directed under section 46(2.1) to carry out the investigation is of the opinion that the actions of the chief that are the subject of the investigation constitute an offence, they must refer the matters to the Minister of Justice, or if they conclude actions are a contravention of regulations governing discipline or duty, they must refer to the commission ( Police Act , section 46(3) ).

[39] The officer and the complainant may appeal the outcome of a hearing to the Law Enforcement Review Board (Police Act, s48), other than matters summarily disposed of under section 45(4) where there is no statutory appeal (Police Act, section 45(4.1)). IV The Board’s decision [40] The Board rejected the CPA’s section 36(3)(

a) complaint as being without merit under section 39(1) of POCBA for reasonsother than the

interpretation of

section 45. CPA does not challenge this finding in the judicial review. [41] In response to CPA’s application to settle a difference arising under the collective agreement, the Board decided that section45 of the Police Act does not require that investigations of conduct complaints be conducted by police officers. [42] The Board applied the modern approach to statutory

interpretation set out in Rizzo v Rizzo Shoes Ltd, [1988] 1 SCR 27, at para 21 as follows: 21 Although much has been written about the

interpretation of legislation (see, e.g., Ruth Sullivan, Statutory

Interpretation (1997);Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, TheInterpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates theapproach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, (SCC), [1997] 3 S.C.R.213**; Royal Bank of Canada v. Sparrow Electric Corp., (SCC), [1997] 1 S.C.R. 411; Verdun v. Toronto-DominionBank, (SCC), [1996] 3 S.C.R. 550; Friesen v. Canada, (SCC), [1995] 3 S.C.R. 103. [** footnote deleted] [43] The Board started its analysis with the rights, responsibilities, and accountability of the chief of police set out in

section 41 ofthe Police Act: 41(1) The chief of police of a police service established under

section 24, 27 or 33.1(1) is responsible for the following: (

a) the preservation and maintenance of the public peace and the prevention of crime within the municipality; (

b) the maintenance of discipline and the performance of duty within the police service, subject to the regulations governing thediscipline and the performance of duty of police officers; (

c) the day to day administration of the police service; (

d) the application of professional police procedures; (

e) the enforcement of policies made by the commission with respect to the police service.

(2) For the purposes of subsection (1), the chief of police shall issue orders and make directives as the chief of police considersnecessary.

(3) The chief of police is accountable to the commission for the following: (

a) the operation of the police service; (

b) the manner in which the chief of police carries out the responsibilities under subsection (1); (

c) the administration of the finances and operations of the police service in keeping with the yearly plan or any amendments to itthat the commission may make; (

d) the reporting to the commission of any information concerning the activities of the police service that the commission mayrequest, other than information concerning individual investigations or intelligence files; (

e) the reporting to the commission of any complaint made against the police service or its members, the progress of anyinvestigation or informal resolution process regarding the complaint, the reasons for any delays and the manner in which the complaint isresolved. [44] The Board observed that management has the right to select personnel, assign work and fill vacant positions, then framed theissue as follows: In this case, the issue is whether the Police Act restricts the Chief of Police by obligating the Chief of Police to assign only policeofficers to carry out section 45(1) investigations. [45] The Board observed the essence of the CPA’s argument was that the statutory provisions concerning the use of police officerselsewhere in the complaint processes (sections 45(5). 45(6), 46(2)(a), 46.2(3)) requires a harmonious

interpretation of section 45(1) torequire the chief of police to appoint a police officer to carry out section 45(1) investigations. The Board also noted the City’s response,

that CPA sought to add words to section 45(1) which are not contained therein. [ 46 ] The Board rejected the CPA’s position. The Board stated: [49] In response to CPA’s

section 40 POCBA application, the Board concludes that the Chief of Police is not restricted in the people he selects to conduct section 45(1) investigations. The Board’s reasoning is based upon the following statutory analysis: 1. The context of complaints is such that the subject matter of complaints does not necessarily mandate the utilization of police officers to carry out the investigations. 2. The scheme of the Police Act provides the Chief of Police with the authority to exercise his discretion in issuing directives and orders as the Chief of Police considers necessary. 3. The object and the intention of

section 42.1(1) complaints and the investigations in response thereto, is to create a process of accountability for police officers. 4. In response to the CPA’s argument regarding harmonious

interpretation of the Police Act in terms of other provisions that reference investigations, the Board notes that the wording contained in section 45(1) does not expressly refer to the use of police officers, and in the Boards view, this in turn means that the Chief of Police must exercise his discretion pursuant to section 41(2) as he considers necessary in carrying out his responsibilities. 5.

The Chief of Police in conducting an investigation pursuant to section 45(1) of the Police Act is in essence carrying out a right/duty, which right/duty duty [sic] can be exercised by the Chief of Police in his discretion subject to any restrictions imposed pursuant to the Police Act or the collective agreement. There are no explicit restrictions. In addition, section 41(2) authorizes the Chief of Police to issue orders and directions as he considers necessary.

A harmonious reading of section 45(1) with the authority designated to the Chief of Police pursuant to section 41(1)(2) and (3) is that the Chief of Police has the right to determine if he wishes to use civilian investigators unless the Police Act otherwise restricts him from doing so.

Section 60 of the Police Act prohibits matters referenced in section 45(1) of the Police Act from being the subject of a collective agreement. It is difficult to reconcile the Police Act ’s prohibition against there being collective agreement terms addressing section 45(1) matters with an

interpretation of section 45(1) that mandates the investigations are to be carried out by CPA members. [ 47 ] The Board then observed there are sound operational reasons for using civilian investigators in some investigations. [50] There are sound operational reasons for the use of civilian investigators for some investigations pursuant to section 45(1) of the Police Act : 1.

These reasons include the desire to avoid police officers investigating other police officers in those situations where there may be a conflict or a perceived conflict and the desire for the CPS to reduce the impact arising from the significant turnover of police officers in the PSS unit. 2. The job description for civilian investigators indicates that the civilian investigators provide various reports to the “PSS Management Team and ultimately the Chief for his knowledge and approval”. The PSS Management Team is composed of police officers. In addition, the investigators are supervised by a sergeant.

As such, the work of civilian investigators is overseen by police officers. 3. That the wording of section 45(1) does not reference police officers the Chief of Police has discretion as to whether a section 45(1) investigation of a

section 42.1(1) complaint is assigned to civilian investigator or a police officer. Accordingly, if the nature of the complaint necessitates that the investigation be conducted by a police officer, the Chief of Police has the discretion to utilize a police officer for that complaint. [ 48 ] The Board concluded at paras 51 - 52: [51] Based upon (1) the context of

section 45 investigations, (2) the scheme of the Police Act , (3) the omission of any reference to police officers in section 45(1) of the Police Act and (4) the objective of

section 42.1(1) complaints to create accountability of police officers, the Board concludes that the intent of section 45(1) of the Police Act is to permit the Chief of Police to utilize police officers or civilian investigators in conducting investigations in response to

section 42.1(1) complaints. [52] In response to CPA’s

section 40 POCBA application for settlement of a difference, the Board concludes that the meaning of policing duties referenced in the definition of “police officers” contained in

section 1 (

l) of POCBA does not require that police officers be assigned to do investigations pursuant to section 45(1) of the Police Act . V Parties’ positions [ 49 ] The Applicant submits the Board’s conclusion was unreasonable. The Board focussed too narrowly on section 45(1) . Its conclusion conflicts with the wording of

section 45 and is not supported by a broader reading of the Police Act . [ 50 ] In support of its position, CPA submitted: (

a) The Board failed to consider CPA’s submissions concerning the meaning and effect of section 45(5) or unreasonably interpreted section 45(5). (

b) The Board’s

interpretation is not supported by a broader reading of, or the context of the entirety of, the Police Act including

sections 46(2), (2.1), (2.2), 46.1, 46.2(2), (3). (

c) The Board’s flawed conclusion stemmed from its incorrect understanding that there are multiple types of investigationsunder section 45(1), some of which might require police officers and others that would not. If the Board thought that CPA had contendedthere are multiple types of investigations, it proceeded on a fundamental misapprehension of CPA’s position. (

d) When the legislature intended civilian oversight, it explicitly provided for that oversight (Police Act,

section 46.1(2)(c)). (

e) Civilian investigators lack the necessary powers to adequately investigate complaints with criminal dimensions and it is notpossible to limit their involvement to non-criminal matters. [51] Counsel for CPS further submitted that the Board’s

interpretation of

section 38 of the Police Act was flawed.

Section 38describes policing duties. The Board observed that the function of investigating officer conduct is not listed in

section 38, making itdifficult to argue that investigating such matters is a policing duty. Counsel submitted the Board read the provision narrowly, and themere fact that specific functions are not expressly mentioned in section 38(1) cannot mean the chief of police has discretion to assign theduties to a civilian. [52] CPA’s counsel further submitted that the Board committed other errors which underscore the Board’s problematic reasoningprocess and are worth reviewing: (

a) The CPS’s intentions and motivations for structuring its operations are irrelevant to statutory

interpretation and the Boardmade a serious error in taking these into account. (

b) The Board’s concern that using police officers to investigate other police officers may create an appearance of conflict ofinterest is not valid. The Police Act governs the issue by authorizing the matter to be investigated by another police service under section45(5). (

c) The Board erred in thinking that

section 60 of the Police Act has a bearing on the

interpretation of s

Section 60 onlyprevents the parties from bargaining for a different discipline system (Edmonton (Police Service) v Deluca, 2022 ABCA 86 at para 57). [53] The CPA submitted there is only one possible

interpretation of

section 45: that the police service must use police officers toinvestigate conduct complaints under

section 45. Further, if there is more than one

interpretation, the Board’s

interpretation is outside therange of reasonableness and the matter should be remitted for redetermination. [54] CPA submits section 45(5) would be nonsensical if it permitted the chief of police to assign a non-police officer to investigatewhere the service has an officer of sufficient rank and experience, or if the chief of police had discretion to assign the investigation totheir police service if they believed it was in the public interest to have another police service investigate the complaint.

If the word“may” in section 45(5) implied discretion, then the statute would authorize the chief of police to knowingly take actions they believedwere contrary to the public interest and thereby act in bad faith. Such authority is contrary to the statutory objectives. Or, as expressed inoral submissions, if a chief of police can hire civilian investigators there would be no need for section 45(5). [55] CPA submits (without abandoning its other submissions) that the Board’s failure to reconcile section 45(5) with section 45(1)is sufficient to find the decision unreasonable.

While the other errors, considered individually, might not make the decision unreasonable,they should be assessed collectively and demonstrate the decision is unreasonable. [56] The City submitted that the chief of police has wide discretion in the manner of investigation. The chief’s power under section45(5) is discretionary and merely provides additional investigative tools.

The Board considered the issues, the interplay of the statutoryprovisions, and the parties’ submissions, and came to a reasonable and intelligible conclusion. [57] The Board did not make submissions on the merits of the case and limited its role and submissions in the judicial review inaccordance with applicable case law. VI Analysis [58] The Court agrees with the Applicant that reasonableness review is not a rubber stamp nor contemplates submission to thedecision maker’s reasons or conclusions.

Nor do the Board’s reasons need to be perfect or necessarily respond to every argument orpiece of evidence that the Court may have preferred, as the Respondent points out (Vavilov at para 91). [59] Instead, both the Board’s reasons and the outcome must be transparent, intelligent, and justifiable (Vavilov at para 81, 87,136; International Brotherhood of Boilermakers v Alberta Labour Relations Board, 2022 ABCA 139 at para 23). [60] In some cases, the outcome might have been reasonable, yet the Court may set the decision aside because it resulted from anunreasonable chain of analysis (Vavilov at para 87).

The same applies where there is a fundamental gap in a decision-maker’s reasons. InVavilov, the Court elaborated on this principle at para 96: Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional settingand in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it isnot ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision.

Even if theoutcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawedbasis for a decision and substitute its own justification for the outcome .... To allow a reviewing court to do so would be to allow anadministrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible,the basis on which it arrived at a particular conclusion.

This would also amount to adopting an approach to reasonableness reviewfocused solely on the outcome of a decision, to the exclusion of the rationale for that decision. ...

[ 61 ] In other words, “where a decision maker’s rationale for an essential element of the decision is not addressed in the reasons and cannot be inferred from the record, the decision will generally fail to meet the requisite standard of justification, transparency and intelligibility ...” ( Vavilov at para 98 ). [ 62 ] When might a Court set aside for failure of the Board to exhibit the requisite degree of justification, intelligibility, and transparency?

A reviewing Court must consider both whether the decision is internally coherent and justified in light of the legal and factual constraints that bear on the decision. In Vavilov , the Court observed: [99] A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable.

To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision .... [100] The burden is on the party challenging the decision to show that it is unreasonable.

Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep.

Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable . [101] What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it.

There is however, no need for reviewing courts to categorize failures of reasonableness as belonging to one type or the other. Rather, we use these descriptions simply as a convenient way to discuss the types of issues that may show a decision to be unreasonable. [Citations deleted, underlining added] [ 63 ] Further, a reviewing Court must consider the tribunal’s formal reasons in light of the record and with due sensitivity to the administrative regime in which they were given.

Vavilov states: [103] While, as we indicated earlier (at paras. 89-96), formal reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis...

A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken ... or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point... [Citations deleted; underlining added]. [ 64 ] As to relevant factual and legal constraints in which the decision must be assessed, the Court in Vavilov stated: [106] It is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision maker in a particular case.

However, in the sections that follow, we discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely the governing statutory scheme; other relevant statutory or common law; the principles of statutory

interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context.

They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached. [ 65 ] In reviewing the matter, the Court must also consider the parties’ submissions to the decision maker.

Courts do not expect decision makers to respond to every argument, but “a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it” ( Vavilov at para 128 [underlining added]). [ 66 ] The modern approach to statutory

interpretation required the Board to read the provisions in question in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Police Act , the object of the Police Act , and the intention of the legislature. [ 67 ] In the context of the present case - statutory

interpretation - the Applicant provided several examples of unreasonableness: (

a) Adopting a meaning the words cannot reasonably bear. (

b) Failing to consider a pertinent aspect of the legislative text, context, or purpose. (

c) Failing to consider key elements which may have led the decision maker to a different result. (

d) In cases where there is only one reasonable

interpretation, failing to reach this outcome. [ 68 ] These are not an exhaustive catalogue, but I agree they are valid examples of the application of the principles. However, in respect of the fourth example, I accept the Respondent’s observation that where a party asserts that there is only one reasonable

interpretation of a statutory provision, “a court should generally pause before definitively pronouncing upon the

interpretation of a provision entrusted to an administrative decision maker” ( Vavilov at para 124 ).

[ 69 ] I conclude that CPA has not demonstrated that the Board’s decision is unreasonable. The Board identified the correct approach to statutory

interpretation, followed a rational chain of analysis, and came to an

interpretation that is reasonable. Although I would have preferred to see a more explicit discussion of the Applicant’s submissions concerning the impact of section 45(5) and similar provisions in sections 46 through 46.2, I am satisfied that the Board did not fail or refuse to consider or overlook CPA’s submissions about the impact of section 45(5) or similar provisions of the Police Act or unreasonably construe them.

To the contrary, the only possible conclusion is that the Board accepted the City’s submission that section 45(5) “simply provides the Chief of Police with the option of having another police service conduct an investigation rather than prescribing it ...”. Some of the other things said to be errors are a misreading of the Board’s reasons, or minor missteps that are not sufficiently central or significant to render the decision unreasonable. [ 70 ] The core considerations of the Board in respect of the meaning of

section 45 of the Police Act , were, in the Board’s words “(1) the context of

section 45 investigations, (2) the scheme of the Police Act , (3) the omission of any reference to police officers in section 45(1) of the Police Act and (4) the objective of

section 42.1(1) complaints to create accountability of police officers” (Board’s Reasons at para 51). [ 71 ] The Board’s assessment of these factors included: (

a) Not all complaints would necessarily require investigation by a police officer ( Board’s Reasons , para 49(1)). (

b) The scheme of the Police Act provided the chief of police discretion in how to carry out their duties (Board’s Reasons, para 49(2)). (

c) The object and intent of the complaints and discipline procedure is to create a process of accountability (Board’s Reasons, para 49(3)). (

d) The Board recognized CPA’s primary argument that sections 45(5) and similar provisions demonstrated a legislative intention that only police officers were qualified under the statutory scheme to carry out the investigations (Board’s Reasons at paras 48 and 49(4)). Section 45(1) does not explicitly limit the personnel who conduct investigations to police officers. Consequently, the chief of police must use their discretion under section 41(2) as they consider necessary in carrying out their responsibilities ( ibid , para 49(4) and (5)). (

e) There are sound operational reasons for the use of civilian investigators (Board’s Reasons, para 50). [ 72 ] I consider the foregoing to be the core of the Board’s analysis.

I do not consider the outcome or core chain of reasoning to be unreasonable. [ 73 ] First, the plain language of section 45(1) does not explicitly prescribe the qualifications of investigators of police conduct complaints. [ 74 ] Second, the language of section 45(5) does not explicitly require a chief of police to arrange for police officers of other police services to investigate if a police officer of the chief’s police service is not assigned or assignable as investigator. Rather, the language of section 45(5) is in the form of a discretionary power (“may” as opposed to “shall” or “must”).

The word “may”, in contrast to the words “shall” or “must”, is normally (though not necessarily) construed as permissive and empowering (

Interpretation Act , RSA 2000, c I-8, sections 28(2) (c), (d), (f)). As explained below, in this case it is reasonable to conclude that “may” means “may”. [ 75 ] Third, CPA’s

interpretation of section 45(5) that it requires police officers to investigate, is not the only plausible

interpretation. [ 76 ] Another

interpretation of section 45(5) is that the chief of police is authorized to arrange for another service to assist if the chief decides that a police officer is required to investigate but does not have, within their service, a suitable officer to do so. In other words, section 45(5) says that the chief may request investigation by police officers of another service in certain circumstances where the chief decides an officer should investigate, not that police officers must always investigate. [ 77 ] The structure and context of the Police Act strongly support the Board’s

interpretation, which recognizes and respects the chief’s important role and discretion to allocate and deploy the police service’s resources that the chief sees necessary to best administer the police service and discharge all its functions, including (but not only) conduct and discipline. The statutory framework demonstrates the need for flexibility in the administration of the police service to ensure it is and continues to be a trusted and effective participant in the administration of justice. [ 78 ] In this regard, the Court must consider the overall statutory scheme.

The Police Act contemplates that a police service will be adequate and effective ( section 27(1) ). The chief of police and the commission (in this case, the Calgary Police Commission) work together to ensure this objective is achieved.

Obviously, an adequate and effective police service may require both civilians and officers to carry out its functions, and the statute contemplates the service may have employees other than police officers (sections 29(a)(i), 31(1) (d); see also section 30(2)(c)). [ 79 ] Further, the statute imposes responsibility on the chief of police for maintenance of discipline and performance of duty in the police service and the day-to-day administration of the service and empowers the chief to issue orders and make directives as they consider necessary to fulfill these responsibilities (sections 41(1), (2)). [ 80 ] An adequate and effective police service requires adequate and effective complaint and discipline procedures that maintain and enhance public confidence in the police service.

Several provisions of the Police Act , described earlier in these reasons, reflect these values: (

a) the right of specified members of the public to make conduct complaints;

(

b) the obligation of the commission to provide a public complaints director (and the statutory requirements for regional and provincial public complaint directors under sections 28.2, 28.3); (

c) the requirement that serious incidents be reported to the Minister, who may invoke other complaint mechanisms or appoint members of the public to oversee the investigation; (

d) the progress reporting obligations owed to complainants (section 45(7)) and the obligation to reasons for the outcome of the complaint (section 47(5)); (

e) the availability of appeals not only for the officer but also for the complainant. [ 81 ] Why would the legislature intend that the adequate and effective operation of a police service including complaint and disciplinary system requires the chief’s discretion to be constrained in the manner suggested by CPA? [ 82 ] CPA suggests, among other things, that the complaint and discipline system necessarily requires all investigators to have powers under the Criminal Code because you cannot know in advance whether an investigation has criminal implications. [ 83 ] I do not accept CPA’s contention.

It was reasonably open to the Board to find that investigators do not necessarily require such powers. [ 84 ] First, it is obvious that community members, with or without policing backgrounds, may be qualified and competent to investigate complaints or can attain the required competencies of a complaint investigator without being a police officer. Examples might include retired police officers or police chiefs, retired judges, practicing, non-practicing, or retired lawyers, other current or retired participants in the administration of justice, or forensic experts of various disciplines.

In some situations, it might be desirable to retain a well-respected and qualified member of the community to investigate a specific complaint, or to employ civilians in the police service to assist, for example, in addressing high complaint volumes or staff turnover and enable more police officers to work in other aspects of law enforcement. [ 85 ] Second, many professional regulators operating conduct complaint systems under provincial regulatory statutes do not have police powers.

Generally speaking, if it appears in the course of investigating a complaint from the public that there is an aspect of criminality, the police are not constrained from investigating crime merely because a discipline investigation is underway. [ 86 ] Third, it is notable that the other provisions of the Police Act providing for investigation do not require that the investigator be a police officer. [ 87 ] The Police Act does not explicitly require the head or the investigators of an integrated investigative unit investigating serious incidents to be police officers and there is no apparent basis to imply such a limitation in the scheme of the Police Act . [ 88 ]

Section 46.1 does not explicitly exclude the use of civilian investigators where the investigation of a serious incident is referred to another police service. CPA points out that the Minister may provide for public oversight of an investigation (

section 46.1(2) (c)) and submits this suggests a police service cannot appoint a civilian to investigate complaints. This is not a persuasive argument. A public overseer is meant to provide an extra layer of independence and public accountability and is not equivalent to a civilian employee of a police service doing the investigation work. [ 89 ] Section 46(1) governs investigation of conduct complaints against police chiefs. It states that another “police service” may be appointed to investigate after review of the complaint by the chair of a commission ( section 46(2.1) .

Section 46 does not suggest that the appointed police service cannot employ civilian investigators to assist in discharging the investigative responsibilities. [ 90 ] Using the Board’s language, there are generally sound operational reasons that support the conclusions that a chief of police would reasonably require broad discretion to assign resources within the police service to meet the objective of providing an adequate and effective police service and that the legislature did not intend to constrain this discretion when appointing investigators under

section 45 . In the context of investigations, those may include managing perceptions of bias or conflict of interest in investigations or managing human resources by employing civilians for some investigatory functions thereby freeing police officers for other tasks or assignments. [ 91 ] A Court or administrative decision maker should be cautious in constraining the general powers of the chief of police and commission to operate the police service in an appropriate fashion, sensitive to public concerns, budgetary constraints, and resource allocation issues. Given the language, object and scheme of the Police Act , the Court does not agree with CPA that the only reasonable

interpretation of section 45(5) is to impose a mandatory duty on the chief of police to seek the assistance of police officers of other services in certain situations or that such a duty implies that only police officers may investigate complaints. [ 92 ] I do not see a good reason to interpret

section 45 so as to deprive a chief of police from having discretion under section 45(1) to appoint investigators other than police officers to meet operational needs of their police service. To the contrary, the most plausible

interpretation of

section 45 is that the legislature did not intend to deprive a police service from employing civilian investigators in furtherance of the statutory mandate to provide an effective and adequate police service.

If this judicial review had been conducted on the correctness standard (a possibility described earlier in these Reasons), the Court would have come to the same conclusion as the Board. [ 93 ] As to the Board’s reasons, the Court concludes that they are sufficiently transparent and intelligible under the principles in Vavilov , do not indicate any concern that the Board misunderstood or ignored CPA’s submissions, and do not indicate anything other than, at most, one or two minor missteps that do not impact the core of the Board’s reasoning. [ 94 ] CPA submits that the Board construed the Police Act to create multiple types of conduct complaint investigations or multiple investigative processes and thereby erred (or misunderstood CPA’s submissions) because the statute only provides for one type of investigation.

[ 95 ] I will not review these arguments in detail. I regard them as unduly focussing on the Board’s grammar. Overall, the Board’s sentence structure and use of the plural rather than the singular when referring to aspects of the complaint investigation structure or the flexibility inherent in it, do not suggest the Board misunderstood the statutory structure or CPA’s submissions. [ 96 ] CPA further submits the Board placed an unreasonably narrow

interpretation on

section 38 of the Police Act , when it observed that: [37] The function of investigating police officer conduct is not expressly listed in the duties identified in section 38(1) of the Police Act . This omission makes it difficult to argue that it is a “policing duty” or duty incidental to those duties under

section 1 (

l) of the POCBA , which defines the duties of police officers. [ 97 ] The Board was not, in this passage, addressing the meaning of

section 45 , rather it was discussing the meaning of “members of the municipal police services appointed for policing duties and duties incidental to those duties” under

section 1 (

l) of POCBA . [ 98 ] The Board recognized the fact that police officers perform certain duties “does not make all of such duties solely and exclusively the bailiwick of police officers”, that investigations are a common responsibility carried out by police officers across the police force as they conduct criminal investigations, and that it is not uncommon for civilians to also conduct investigations (Board’s Reasons at para 34, 36). [ 99 ] The Board’s observations concerning

section 38 are not unreasonable. It is difficult to argue that the legislature intended that only police officers may carry out complaint investigations when it did not define police duties to include investigatory functions that are commonly carried out by civilians in a variety of contexts. As mentioned earlier, it is not uncommon that civilians conduct investigations.

In the context of conduct matters, is not uncommon that a regulator responsible for a complaint process decides the qualifications for its investigator positions. [ 100 ] CPA submits that para 49(6) of the Board’s reasons (quoted at para 46 above) demonstrate that the Board took an irrelevant consideration into account in interpreting

section 45 of the Police Act . CPA submits that

section 60 of the Police Act is irrelevant to interpreting the meaning of

section 45 . The City submits that the Board was simply saying there is no express statutory provision or collective agreement that restricts the chief of police to using police officers to conduct complaint investigations. [ 101 ] The Court does not accept CPA’s contention. [ 102 ]

Section 60 provides: 60 None of the matters referred to in sections 16, 20, 31, 37(1), 41 and 43 to 48 shall be the subject of a collective agreement referred to in the Police Officers Collective Bargaining Act . [ 103 ] The Board was making its decision in the context of a collective agreement. Collective agreements generally regulate the conditions under which members perform their assigned duties.

The Board’s comment appears merely to reflect its view that conducting a section 45(1) investigation is not exclusively or necessarily a police duty, otherwise it would likely not have been excluded from the collective agreement regime. This is not a weighty consideration, but (leaving aside for a moment the Court of Appeal’s decision in Deluca that was released after the Board’s decision) the Court would not consider the Board’s reliance on

section 60 to be irrelevant or irrational. [ 104 ] However, CPA further submitted that after the Board’s reasons were released, the Court of Appeal in Deluca limited the scope of

section 60 to a prohibition on bargaining for a departure from or modification of the statutory conduct and discipline scheme, and that the Board’s reliance on

section 60 was not justified in view of that case. [ 105 ] Assuming that CPA’s

interpretation of Deluca is accurate, this aspect of the Board’s reasons would reflect a misunderstanding of the scope of

section 60 . However, as Vavilov holds, not every misstep in reasoning makes a decision unreasonable. [ 106 ] The Board’s reliance on

section 60 would be a minor misstep, which is not sufficiently central or significant to the Board’s reasoning process or the outcome to render the decision unreasonable. Nor does the misstep suggest the Board was acting irrationally. The force of the Board’s reasons was not the impact of

section 60 on the meaning of

section 45 . Rather, it was the plain language of

section 45 ; the context of complaints, particularly that they do not necessarily mandate the utilization of police officers to carry out investigations; and the chief’s need for discretion in assigning resources. [ 107 ] CPS submits that the Board (at paras 50(1) and 50(2) of its Reasons) included the City’s internal complaint procedures as contextual information to interpret

section 45. It submits, “the Board is using choices CPS has made about how it structures its operations as an interpretative tool for understanding the Police Act .” [ 108 ] The City’s operational choices are not a relevant criterion for interpreting the Police Act . However, the Court does not agree that the Board made such a basic error or if it did, that it was a material error that had any impact on the outcome. [ 109 ] The Board made clear that for statutory

interpretation purposes, the context of complaints was that the subject matter of complaints does not necessarily mandate the utilization of police officers (Board’s Reasons at para 49(1) and 51). This was a relevant consideration. [ 110 ] The Board was also entitled to consider, as part of the background or context of investigations, that there are sound operational reasons for a police force generally to have discretion in assigning investigators under

section 45. The significance of a chief’s discretion in operating a police service is a theme running throughout the Police Act and the Board’s Reasons. [ 111 ] It is implausible that Board intended, at paras 50(1) and 50(2) of its Reasons, to depart from the approach in Rizzo Shoes by using the City’s actual operational choices for CPS as a basis of interpreting the Police Act . The Board had correctly described the

relevant test for statutory

interpretation and I regard the suggestion that para 50 of its Reasons shows the Board somehow overlooked the basic principles is an inappropriate line by line parsing of the decision of the nature described at para 102 of Vavilov . [ 112 ] It is plausible that the Board was merely attempting to illustrate, by reference to the City’s operational choices, the types of operational needs that support the conclusion that the legislature intended the chief of police to have discretion in appointing investigators without limiting eligibility for appointment to police officers, or to merely suggest there was no issue that the chief was exercising their discretion capriciously in deciding to employ civilian investigators.

The Board returned to the theme of the need for operational flexibility at para 50(3). [ 113 ] However, if the Court were to accept that the Board did commit the basic error asserted by CPA, then at most, paras 50(1) and 50(2) would be a minor misstep. Leaving aside CPS’ specific operational reasons for employing civilians, the Board did reasonably consider that a chief of police has discretion in the operation of a police service. The Rizzo Shoes approach compels the conclusion that

section 45 does not constrain a chief’s discretion in assigning civilians to investigative roles in conduct complaints. In view of this compelling case and the content of the Board’s reasons, I see no possibility that the Board would have arrived at the opposite conclusion if it had ignored CPS’s actual operational choices. VII Conclusion [ 114 ] The judicial review is dismissed. The parties may arrange to speak to costs. Heard on the 02 nd day of May, 2023. Dated at the City of Calgary, Alberta this 29th day of September, 2023. J.T. Eamon J.C.K.B.A.

Appearances: Patrick Nugent and Adam Cembrowski for the Applicant Chelsea Sutherland for the Respondent Calgary (City) Terri Susan Zurbrigg for the Respondent Alberta Labour Relations Board