Morton v Alberta (Law Enforcement Review Board), 2024 ABCA 5

In the Court of Appeal of Alberta Citation: Morton v Alberta (Law Enforcement Review Board), 2024 ABCA 5 Date: 20240108 Docket: 2301-0142AC Registry: Calgary Between: Bryan Morton Applicant - and - Alberta Law Enforcement Review Board and Chief of Police of the Calgary Police Service Respondents _______________________________________________________ Reasons for Decision of The Honourable Justice Bernette Ho _______________________________________________________ Application for Permission to Appeal _______________________________________________________ Reasons for Decision of

The Honourable Justice Bernette Ho _______________________________________________________ [ 1 ] The applicant, Bryan Morton, seeks permission to appeal a decision of the Law Enforcement Review Board (“Board”): Morton v Calgary (Police Service) , 2023 ABLERB 9 [ Morton ]. The Board upheld the presiding officer’s decision to dismiss the applicant from the Calgary Police Service (“CPS”). The applicant brings this application pursuant to the Police Act , RSA 2000, c P-17 , s 18. [ 2 ] For the following reasons, the application for permission to appeal is denied.

Background [ 3 ] The applicant was dismissed from the CPS for his role in the unauthorized surveillance of a civilian on behalf of a private security company. Given that the applicant’s argument focuses on the timing of the charges brought against him, a chronology of the relevant criminal and disciplinary proceedings is necessary. [ 4 ] The Board found that the applicant’s participation in the surveillance began in 2012: Morton at para 1 . [ 5 ] On or about August 25, 2014, [1] the anti-corruption unit of the CPS began an investigation into the conduct of the applicant and two other officers.

Just under a year later, on or about August 14, 2015, the Chief of Police (“Chief”) directed the professional standards

section of the CPS to initiate their own investigation. As a result of that investigation, by June of 2016 the applicant was facing four charges under the Criminal Code, RSC 1985, c C-46 and five misconduct charges under the Police Service Regulation , Alta Reg 356/1990 , s 5(1) [ Regulations ]. [ 6 ] On April 27, 2018, the applicant was convicted of four criminal offences. He was sentenced on March 20, 2019, to 30 months in prison.

This court dismissed the applicant’s conviction appeal on June 25, 2020: R v Morton , 2020 ABCA 250 . [ 7 ] On November 10, 2020, the Chief directed that the allegations of misconduct against the applicant proceed to a disciplinary hearing. On January 28, 2021, before the CPS disciplinary hearing commenced, this court dismissed the applicant’s appeal from his sentence: R v Morton , 2021 ABCA 29 . The applicant began serving his criminal sentence in February of 2021. [ 8 ] A year later, in February 2022, the disciplinary proceedings against the applicant proceeded.

Notwithstanding the five allegations of misconduct the Chief initially directed to go to a disciplinary hearing, the CPS decided to pursue only two charges of discreditable conduct. Namely, that the applicant committed discreditable conduct when he was criminally convicted (s 5(2)(e)(i)(

A) of the Regulations ) and when he was sentenced (s 5(2)(e)(viii) of the Regulations ); Morton at paras 2–4 . [ 9 ] On June 7, 2022, the presiding officer found the applicant guilty on both counts of discreditable conduct. On June 19, 2022, the presiding officer determined that a fit penalty was dismissal from service: Morton at para 5 . [ 10 ] The applicant appealed the presiding officer’s conviction and penalty decision to the Board.

Before the Board, the applicant argued that: (1) the CPS lost jurisdiction to proceed to a disciplinary hearing because it failed to comply with s 43(11) of the Police Act and the time limit extensions set out under s 7 of the Regulations ; (2) the hearing before the presiding officer lacked procedural fairness; and (3) there was an abuse of process: Morton at para 6 . [ 11 ] The Board dismissed each of the applicant’s arguments.

Regarding the loss of jurisdiction and abuse of process arguments, the Board held that the presiding officer applied the appropriate law to the facts of the case to reach a reasonable conclusion. As for the procedural fairness argument, the Board wrote that no evidence before them suggested the presiding officer lacked independence or objectivity, or that the applicant was denied procedural fairness in any way. Test for Permission to Appeal [ 12 ]

Section 18 of the Police Act provides that permission to appeal from a decision of the Board will be granted where there is a significant question of law with a reasonable prospect of success: Edmonton (Police Service) v Furlong , 2013 ABCA 34 at para 7 , citing Edmonton (Police Service) v Alberta (Law Enforcement Review Board) , 2012 ABCA 370 at para 7 ; Pelech v Law Enforcement Review Board , 2010 ABCA 4 at para 7 . [ 13 ] A significant question of law is a question that “ implicates the fundamental integrity of the complaint process or affects others besides the participants in the complaint process ”: Power v Law Enforcement Review Board , 2020 ABCA 77 at para 15 , citing Boychuk v Edmonton (Police Service) , 2014 ABCA 163 at paras 42–44 .

A question will have a reasonable prospect of success where “ it is arguable, taking into account the standard of review that would be applied to the Board’s decision if permission to appeal is granted ”: Sharma v Edmonton (Police Service) , 2020 ABCA 308 at para 12 , leave to appeal to SCC refused, 39491 (18 March 2021) citing Braile v Calgary (Police Service) , 2017 ABCA 144 at para 9 ; Steele v Edmonton (Police Service) , 2016 ABCA 95 at para 4 . Positions of the Parties

[14] The applicant made numerous arguments in his written materials alleging errors of fact and mixed fact and law. However, atthe oral hearing, the applicant acknowledged that permission to appeal may only be granted on a question of law. He therefore focusedhis submission on two arguments. First, he argued that the two discreditable conduct charges pursued at the disciplinary hearing werenew charges completely unrelated to the investigation conducted by the professional standards section. Consequently, these new chargeswere statute barred by the one-year period set out in s 43(11) of the Police Act.

Second, the applicant argued that the presiding officerwas biased because he was a former member of the CPS. [15] The Chief argues that the applicant has failed to identify a significant question of law arising from the Board’s decision.Further, the Chief submits that the applicant’s arguments do not have a reasonable chance of success. Regarding the applicant’s firstargument, the Chief contends that s 43(11) of the Police Act does not delineate timelines for laying charges. Rather, it sets out the dateby which a complaint must be made to the Chief.

A complaint made more than one year after the conduct complained of occurred, or thecomplainant first knew or ought to have known that the conduct complained of occurred, must be dismissed. As for the applicant’ssecond argument, the Chief asserts that s 45(3) of the Police Act and s 13 of the Regulations make clear that former CPS members mayserve as a presiding officer at a disciplinary hearing.

Analysis [16] The applicant has not raised a significant question of law that would justify permission to appeal. [17] Section 43(11) of the Police Act concerns the timelines for when a complaint must be dismissed by the Chief relative to whenthe conduct occurred, not the timing of when a charge must be laid. As the respondent submits, the date the Chief knew or ought to haveknown that the conduct complained of occurred was August 25, 2014, when the CPS anti-corruption unit began investigating theapplicant. The respondent submits this is the date when the one-year clock under s 43(11) started running.

The Chief then directed theCPS professional standards

section to investigate the applicant on August 14, 2015. On the facts of this case, the date of the CPSprofessional standards

section investigation is the date of the complaint: Constable Sebastian Bérubé (No. 2291) (Re), at para 35 (AB LERB). Thus the complaint, which was initiated by the Chief and not by a private citizen, was made within theone-year period in s 43(11).

Nothing before me suggests that the Chief initiated the complaint more than a year after he knew or ought tohave known about the applicant’s conduct. [18] The applicant’s issue with the delay appears to also be directed at s 7(1) of the Regulations, which provides that an officercannot be charged with misconduct under s 5 of the Regulations later than six months after a complaint has been made. The applicantraised this argument in his written materials and before the Board. However, s 7(4) of the Regulations gives the police commission thediscretionary power to extend this time limit.

As a panel of this court determined in Manyfingers v Calgary (City) Police Service, 2006ABCA 162 at paras 7–8, the police commission can extend time limits under s 7(4) even where the time limits have already expired.Here, the Board upheld the presiding officer’s finding that the time limit extensions for carrying out the investigation were reasonable.The applicant has failed to identify an error of law in the Board’s conclusion. [19] As for the applicant’s argument that the CPS added two discreditable charges in February of 2022, this argument is notsupported by the record. Following the professional service

section investigation, the Chief directed that the five allegations ofmisconduct against the applicant proceed to a hearing: three allegations of discreditable conduct, one allegation of corrupt practice, andone allegation of breach of confidence: Morton at para 2. At the disciplinary hearing, the CPS pursued two discreditable conduct chargesbased on the applicant’s criminal conviction and sentence, while the other allegations were not pursued. It was reasonable for the CPS touse the applicant’s criminal conviction and subsequent sentence to prove these charges.

For instance, in Kelly v Edmonton (PoliceService), 2021 ABLERB 13 at para 46, the Board wrote: “[s]ection 45(3) of the Act provides the chief with the authority to determinethe charges that should go to a disciplinary hearing after an investigation. Where new conduct of concern arises, the chief may addcharges in the matter.” [20] Taken altogether, the applicant’s first ground of appeal does not raise a significant question of law with a reasonable chance ofsuccess. [21] The applicant’s second proposed ground of appeal also does not present a significant question of law.

In essence, the applicanttakes issue with the statutory scheme under the Police Act and the Regulations. Section 13(1)(

a) of the Regulations provides that acurrent or former police officer can act as presiding officer, so long as they are superior in rank to the officer subject to the disciplinaryhearing. Further, the Board found there was no evidence to support the assertion that the presiding officer lacked independence andobjectivity: Morton at para 19. Therefore, this ground of appeal does not raise a significant question of law and must fail. [22] Last, the applicant raised arguments in his written materials that he did not pursue at the oral hearing.

In particular, theapplicant argued that: (1) the disciplinary proceedings against him should have adhered to the time limits established in R v Jordan, 2016SCC 27; and (2) the disciplinary hearing violated the principle of double jeopardy because the applicant had already been punished forthe same conduct in the criminal context. [23] Neither of these grounds can succeed.

Regarding the Jordan argument, the Supreme Court of Canada expressly stated in LawSociety of Saskatchewan v Abrametz, 2022 SCC 29 at paras 45–48 that the principles of Jordan do not apply to administrativeproceedings. [24] As for the double jeopardy argument, it does not appear that this argument was before the Board. Regardless, both the PoliceAct and Regulations provide that disciplinary proceedings can be taken in relation to conduct that is also the subject of criminalproceedings.

For instance, s 45(2) of the Police Act provides that where the Chief believes that an officer’s actions may constitutecriminal behaviour, they must refer the matter to the Minister of Justice. Section 47(3) states that if the matter referred to the Minister isalso going to be the subject of a disciplinary hearing, then the disciplinary hearing can be deferred until the criminal proceedings areconcluded. Further, in laying out the types of misconduct that can be committed, s 5(2)(e)(i)(

A) of the Regulations defines discreditableconduct as including the contravention of

an act of Parliament. Thus, it cannot be said that this argument raises a significant question oflaw.

[ 25 ] The applicant also requested towards the end of his submission that if unsuccessful, he not be required to pay the costs of this proceeding. Under Rule 14.88(1) of the Alberta Rules of Court , Alta Reg 124/2010 , the successful party in an application is presumptively entitled to costs, unless otherwise ordered. Here, the applicant submitted that he does not have the financial ability to pay a cost award, but a party’s lack of funds is not a ground to shield them from paying costs: Bruen v University of Calgary , 2019 ABCA 275 at para 4 .

Therefore, I set the amount of costs that the applicant must pay to the respondent Chief at the fixed amount of $1,350. There are no costs payable to the respondent Board. Application heard on December 14, 2023 Reasons filed at Calgary, Alberta this 8th day of January, 2024 Ho J.A. Appearances: Applicant, B. Morton F.H. Chiu for the Respondent, Alberta Law Enforcement Review Board M.D. Mysak A.T. Yowart for the Respondent, Chief of Police of the Calgary Police Service [1] The Board’s reasons and the applicant’s materials indicate this date as August 25, 2014: Morton at para 9 .

At the oral hearing, the respondent stated this date as August 28, 2014. Nothing turns on this discrepancy.