Kyambadde v Calgary Police Service, 2024 ABKB 13

Court of King’s Bench of Alberta Citation: Kyambadde v Calgary Police Service, 2024 ABKB 13 Date: 20240108 Docket: 2201 05355 Registry: Calgary Between: Benjamin Kyambadde Applicant - and - Calgary Police Service, Office of the Chief Constable Respondents _______________________________________________________ Decision on Judicial Review of the Honourable Justice G.H. Poelman _______________________________________________________ I. Introduction [ 1 ] On March 18, 2021, Mr.

Kyambadde was on break from his work as a Walmart employee when he was approached from behind by a plainclothes officer of the Calgary Police Service (“CPS”), put in a chokehold and taken to the ground. He was placed in handcuffs and detained in the rear of the store for about fifteen minutes while CPS officers determined their next steps. [ 2 ] Regrettably, it was a case of mistaken identity. The officers mistook Mr. Kyambadde for a suspect they were attempting to

locate in the store. [ 3 ] Mr. Kyambadde filed a complaint against the officers to the chief of police (“Chief”) alleging, among other things, that he was a victim of racial profiling (both the suspect and Mr. Kyambadde are black), CPS used unlawful or unnecessary force, and the officers engaged in discreditable conduct. The Chief disposed of and then dismissed the complaint without referring it to a hearing, implicitly coming to the opinion (1) that the allegations were not of a serious nature and (2) that there was insufficient evidence to prove the alleged misconduct. [ 4 ] Mr.

Kyambadde has applied for judicial review of the Chief’s decision. II. Facts: The Record [ 5 ] As required on judicial review applications, the evidence is based upon the certified copy of the record of proceedings of the person or body that is the subject of the application: Alberta Rules of Court , rule 3.22(a). Thus, the following facts are taken from the record, which comprises over four hundred pages and audio and visual recordings. This is a brief

summary. Additional references will be made later where necessary to address specific issues. [ 6 ] Members of the CPS Auto Theft Team (“ATT”) were covertly following a stolen vehicle with four occupants. The vehicle and occupants were believed to have been involved in several March 17, 2021 thefts in Calgary, which involved assaults.

In one case, a victim attempting to sell his iPhone was punched and kicked, and then had his phone taken away; in another case, a victim attempting to sell an iPhone was approached, her phone was taken out of her hand and the offender ran away with it. [ 7 ] On March 18, the vehicle was parked in a handicapped stall close to a Walmart store entrance. Three of the four occupants exited the vehicle, one of them the driver; another occupant took the driver’s position and stayed in the car with the engine idling.

Three of the suspects entered Walmart and members of both CPS patrol (uniformed) and ATT (plainclothes) entered the store initially for the purposes of surveillance. [ 8 ] Over police radio, one of the patrol officers described the three males as “all black males, all wearing blue face masks; one wearing red pants; second smaller male was wearing black Adidas pants; and a third male wearing all black, heavier set.” The three plainclothes officers who are named in the complaint did not personally observe the suspects before becoming involved with them inside the store. [ 9 ] During surveillance in Walmart, it was decided to arrest the three suspects.

Two were arrested by uniformed patrol officers in the clothing and footwear area of the store; the third suspect had separated from them and the officers temporarily lost sight of him. [ 10 ] Mr. Kyambadde was an employee of Walmart and, because he was on break, had taken off his employee vest. He was in the clothing and footwear

section of the store as well. At one point, he was right beside the two suspects. At another point, one of the suspects and Mr. Kyambadde looked at their phones at the same time. [ 11 ] When Mr. Kyambadde was within fifteen yards of the arrested suspects, there were radio communications between Csts. Carston and Johnson. Cst. Carston believed Mr. Kyambadde matched the description of the third suspect and, by gesture, Cst. Johnson confirmed his agreement. [ 12 ] Cst. Carston approached Mr.

Kyambadde from behind and used a lateral vascular neck restraint (“LVNR”) technique (a form of chokehold) without prior announcement that he was an officer. He said this was because of the known use of violence by the suspects in previous incidents and the risks of an uncontrolled arrest in a public space. Cst. Carston stated that he spoke to Mr. Kyambadde directly next to his ear, stating “police, Calgary police. Don’t move.” [ 13 ] Because he perceived resistance, he brought Mr. Kyambadde to the ground. Cst.

Johnson approached and delivered “no more than ten strikes in the left kidney area” because he perceived that Mr. Kyambadde was still resisting. Cst. Goddard also arrived and delivered two strikes to the side, also believing there was resistance. Plainclothes officers Johnson and Goddard reported hearing “police, your [sic] under arrest” followed by “stop resisting.” The three plainclothes officers (Csts. Carston, Johnson and Goddard, the ones named in the complaint) all said Mr. Kyambadde was actively attempting to resist and was being told they were police officers. [ 14 ] Csts.

Humfrey and Oakey, uniformed patrol officers, wore body cameras. The only body-worn camera footage available is from them. They came upon the scene after the plainclothes officers had Mr. Kyambadde face down on the floor. They say nothing in their notes about whether Mr. Kyambadde had resisted the plainclothes officers. Cst. Humfrey states in his notes: Benjamin on stomach with left arm being held behind body and right arm ½ tucked under body. Work to place male in cuffs while telling him “police you’re under arrest”. No strikes or escalated force used.

Some difficulties as cuffs get caught on males pant loop and male is rolling side to side. In his decision, the Chief summarized the body-worn camera footage on this point as follows: Constable Humfrey reached for your left arm and you twisted, pushing yourself up towards the officer. He replied, “Stop it” and Constable Okey pushed your upper body back towards the ground while Constable Humfrey applied the handcuffs. [ 15 ] These activities were observed by a Walmart loss prevention officer, Oluwole Obasan. He did not recognize Mr. Kyambadde (who was not wearing his vest and also wore a blue COVID facemask).

It appears from notes of his interview, however, that he came to recognize Mr. Kyambadde during the incident. [ 16 ] Mr. Obasan was about six feet away when a plainclothes officer grabbed Mr. Kyambadde. He did not hear the plainclothes

officers identify themselves as police officers and he did not see Mr. Kyambadde fighting or resisting arrest. Also, he did not see any plainclothes officers punch or kick Mr. Kyambadde (although all of the officers confirmed this occurred). [ 17 ] Mr.

Kyambadde stated that he was looking for clothes that were on sale “while a bunch of guys came from nowhere and put me to the ground and started punching me in the chest, they held me tight and put me down onto the floor (I didn’t even know that they were undercover cops or the auto-theft cop team).” In later correspondence with the detective investigating the complaint, he stated that the uniformed officers had not “assaulted me, they were the members of the auto-theft team, they never introduced themselves to me as police officers, they just held me and put me to the ground and started punching me in the chest.” He thought someone was trying to steal his phone.

Sgt. Coverdale noted that “he didn’t know what was going on and thought that they may be trying to steal his cellphone” and “the males didn’t tell him that they were the police until approximately 1-1 ½ minutes later” (quoted in applicant’s brief, para 25). When he realized they were police officers, he tried his best to explain to them that he worked there and was only on lunch break but this was “all in vain.” [ 18 ] Before the involvement of uniformed patrol members (primarily Cst. Humfrey), the plainclothes officers (Csts. Carston, Johnson and Goddard) came to realize that Mr.

Kyambadde was not the suspect for whom they were looking. However, they did not advise the arresting patrol officers but went off in search of the suspect. Thus, Mr. Kyambadde was detained and handcuffed by Csts. Humfrey and Okey and taken to a room at the back of the store. Cst. Humfrey was waiting for direction from the plainclothes officers on whether Mr. Kyambadde was the “third suspect.” Mr. Kyambadde was chartered and cautioned and told he was under arrest for theft under $5,000. He was detained for about fourteen minutes before Csts.

Humfrey and Okey were advised that he was not a suspect. [ 19 ] Ultimately, the third suspect was apprehended at the front of the store by Cst. Carston, apparently without incident. [ 20 ] Mr. Kyambadde requested a formal investigation into the conduct of the CPS members. III. Statutory Framework [ 21 ] The Chief’s decision was made pursuant to the provisions of

Part 5, “Complaints and Discipline,” in the Police Act , R.S.A. 2000 c. P-17 . The primary provision for present purposes is

section 45 , which in subsection (1) provides that “where a complaint is a complaint as to the actions of a police officer other than the chief of police . . ., the chief shall cause the complaint to be investigated.” [ 22 ] Following investigation, if the Chief is of the opinion that an officer’s actions may constitute an offence, the Chief “shall refer the matter to the Minister of Justice”: section 45(2)(a).

Alternatively, if the Chief is of the opinion that an officer’s actions may be “a contravention of the regulation governing discipline or the performance of duty of police officers, the chief shall cause the matter to be proceeded with under subsection (3)”: section 45(2)(b).

It is the latter alternative which the chief implicitly considered applicable here. [ 23 ] Section 45(3) provides, in part, as follows: Where the chief of police is of the opinion that the actions of a police officer constitute a contravention of the regulations . . ., the chief of police [or an eligible designate] . . . shall conduct a hearing into the matter as it relates to that contravention. [ 24 ] There is an exception to this apparently straightforward procedure in section 45(4), which is in part as follows: Notwithstanding subsection (3), if the chief of police is of the opinion that the alleged contravention of the regulations . . . is not of a serious nature, the chief may, subject to the regulations, dispose of the matter without conducting a hearing. [ 25 ] The Act does not give express guidance on how to determine whether “the alleged contravention . . . is not of a serious nature.” However, the regulations referred to throughout this part of the Act are applicable. [ 26 ] The Police Service Regulation , Alberta Regulation 356/1990, states that where the Chief acts under section 45(4) of the Act without conducting a hearing, he may dismiss the matter, issue an official warning, or “take any other action that in the opinion of the chief of police is appropriate in the circumstances”: section 19(1)(a).

Only with agreement of the cited officer can he issue a reprimand, order forfeiture of accumulated overtime hours or impose a suspension: section 19(1)(b). The fact that even the issuance of a reprimand requires agreement of the cited officer indicates that the level of sanction contemplated by “any other action” under section 19(1)(

a) must be very limited. [ 27 ] Certain factors “shall” be considered in determining whether a matter may be disposed of without conducting a hearing. Those factors are whether the cited officer’s conduct may be an offence under the Criminal Code , a breach of the Canadian Charter of Rights and Freedoms , or

an act of deceit; whether the officers’ behaviour is non-cooperative or obstructive; and the disciplinary record of the officer: section 19(1.1) . [ 28 ] Thus, the Regulation requires these few factors to be considered when the Chief arrives at an opinion under section 45(4) of the Act that the alleged contravention is not of a serious nature. Clearly, the factors identified in the Regulation are not intended to be exhaustive.

The determination of whether alleged contraventions are of a serious nature under the statute is likely to involve many other considerations, depending on the nature of the complaint. [ 29 ] Finally, section 45(4.1) of the Act , which was added in 2010, makes a decision by the Chief under section 45(4) (that is, on an alleged contravention determined to be “not of a serious nature”) final. Before this subsection was added, a decision by the Chief could be appealed to the Alberta Law Enforcement Review Board (“Board”).

Now, the only challenge to a Chief’s decision under section 45(4) is by judicial review. [ 30 ] Thus, Mr. Kyambadde’s complaint first required the Chief to “cause the complaint to be investigated”: section 45(1). After the investigation, the Chief implicitly came to the opinion that the officers’ actions “ may constitute . . . a contravention” (emphasis added) of discipline or performance regulations: section 45(2)(b). He was then required to have a hearing conducted pursuant to section

45(3), unless he concluded that the alleged contravention was “not of a serious nature, in which case he could ‘dispose of the matter without conducting a hearing’”: section 45(4). [ 31 ] Practically, this awkward sequence of sections means upon determining that the officers’ actions may constitute a breach of the conduct regulations, the Chief had a threshold question to consider: were the alleged contraventions “not of a serious nature”?

Having concluded they were not serious, he was empowered to decide the complaint on its merits, without a hearing. [ 32 ] For perspective and to understand the cases, it is important to consider an alternative pathway to determination that was available: if the Chief concluded that the alleged contraventions were serious, the section 45(3) regime would apply.

In that case, having already concluded that the officers’ actions “may constitute” a contravention (section 45(2)(b)), the chief must determine whether he “ is of the opinion that the actions . . . constitute a contravention of the regulations” (emphasis added) governing police conduct – in which case a hearing is required: section 45(3). [ 33 ] The task of forming this opinion is a gatekeeping function. The test “is whether there is a ‘reasonable prospect of establishing the facts necessary for a conviction’ at a hearing.

This test only requires ‘a reasonable basis in the evidence’ that would support a conviction, not that a conviction be probable or likely”: Conlin v Edmonton (City) Police Service , 2021 ABCA 287 , para 49 (a). In this gatekeeping function, the Chief may conduct a limited weighing of the evidence gathered by the investigation but is not to determine if the charges are proved nor the comparative reliability of parts of the evidence: Conlin , at para 49 (b). IV. Decision of Chief [ 34 ] The Chief’s decision on Mr. Kyambadde’s complaint was issued by a letter dated December 22, 2021.

It began by referring to the complaint, identifying the subject officers (Csts. Carston, Goddard and Johnson) and briefly summarizing the incident. [ 35 ] The Chief’s

summary indicated that on March 18, 2021, CPS’s ATT were following a stolen vehicle that had been involved in several thefts. It stopped at a Walmart store where three of the four occupants entered. Two of them were arrested by patrol and ATT members; Mr. Kyambadde matched the description of the third person; “an ATT member approached you, took you to the ground and placed you under arrest” (p. 1). After a short time, it was determined that Mr.

Kyambadde was not involved in the incident. [ 36 ] The Chief reported that an investigation was conducted and a number of statements and notes, body-worn camera footage, event chronology and CPS Policy were reviewed. [ 37 ] The Chief then turned to what he titled “Legal Thresholds and Chief of Police Screening Function.” He stated that under the Act , he “must decide whether the allegations should be referred to a disciplinary hearing and give my opinion whether there is a reasonable prospect of establishing the facts necessary for a conviction at a hearing.

This test only requires a reasonable basis in the evidence that would support a conviction, not that a conviction be probable or likely,” with a footnote reference to Conlin , para 49 . In submissions, counsel for the respondents stated that at this stage, the Chief was referring to his gatekeeping function under section 45(3) of the Act .

The decision does not state this, but it is a reasonable inference from the language and reference to Conlin . [ 38 ] Next, the Chief stated: Alternatively, I may dispose of the allegations without a hearing and impose sanctions on the officers if there is sufficient evidence to prove the misconduct and the allegations can be dealt with under section 19(1) of the Police Service Regulation .

If there is sufficient evidence to prove the alleged misconduct, then the allegations will be dismissed. [P.2.] Counsel submitted that this referred to the ability to dispose of the complaint without a hearing under section 45(4). Again, the Chief does not say that but it is a reasonable inference. He says “I may dispose of the allegations without a hearing . . . if . . . the allegations can be dealt with under section 19(1) of the Police Service Regulation ” (p. 2).

Section 45(4) of the Act says the Chief “may, subject to the regulations, dispose of the matter without conducting a hearing” and section 19(1.1) of the Regulations speaks of “for the purpose of determining whether a matter may be disposed of in accordance with subsection (1)” – that is, disposing of the matter without conducting a hearing. [ 39 ] The decision then sets out factors to consider that presumably relate to the “serious nature” threshold question and, inferentially, likely also to consideration of whether there is sufficient evidence to prove the allegations: In discharging my screening function, I am to consider the strength, consistency and completeness of the available evidence and the factors set out in section 19(1.1) of the Police Service Regulation , and to use my experience in policing and my understanding of the CPS organization and its policies. [Pp. 2-3.] [ 40 ] The balance of the decision addresses the misconduct allegations specifically, the first being an allegation of unlawful or unnecessary exercise of authority.

Statements of Mr. Kyambadde, Mr. Obasan and the three officers (and notes of Cst. Humfrey) are summarized. There are disputes between the parties over whether the summaries are complete, accurate and balanced. Likewise, there are summaries of the body-worn camera footage, the event chronology and CPS’s Use of Force policy. [ 41 ] In the “Analysis and Determination for Allegation #1” the Chief refers to the officers approaching the situation from the perspective of an elevated risk of conflict, because of the suspects’ history of theft and assault and the exigencies of the suspects being in a public place. Mr.

Kyambadde, he stated, matched the description of one of the suspects. He went on to state that “from the lens of policing” use of force is permitted in certain cases and “due to the violent history of the suspects involved and the genuine belief that you were one of the suspects, the use of force was necessary” (p. 7). [ 42 ] Likewise, Cst. Carston’s application of the LVNR technique was acceptable as he genuinely believed force was necessary to overcome anticipated resistance and the officers “delivering strikes” was reasonable because of their perception of Mr. Kyambadde’s

resistance. The officers’ belief that Mr. Kyambadde was a suspect and was resisting “was in good faith and objectively reasonable given the totality of the circumstances.” The officers, he concluded, had reasonable grounds to use force and the amount used was reasonable. [ 43 ] In conclusion on the first allegation, he stated that it was his opinion it could be dealt with under the Regulation (which I take to be a reference to section 45(4) of the Act and

section 19 of the Regulations ) and there was insufficient evidence to prove misconduct. The allegation was dismissed. [ 44 ] The next part of the decision deals collectively with the second, third and fourth allegations, relating to discreditable conduct (mistaken identity), unlawful or unnecessary exercise of authority (unlawful arrest of Mr. Kyambadde) and discreditable conduct (Mr. Kyambadde being arrested because he was black and wore black clothing). The statements of Mr. Kyambadde and the three subject officers and footage from the body-worn camera were summarized. Again, Mr.

Kyambadde’s counsel raises issues regarding the adequacy of this evidence review. [ 45 ] Under “Analysis and Determination,” the Chief stated that the case was simply an unfortunate one of mistaken identity. Mr.

Kyambadde “matched the description of the suspect exactly: a young Black male, larger in stature, wearing all black clothing and a blue facemask.” The officers, he said, acted in good faith and had “objectively reasonable grounds to place you under arrest and the arrest was lawful.” He found no racial bias in the conduct of the officers. [ 46 ] As with the first allegation, he expressed the opinion “that these allegations can be dealt with under . . . the Regulation ” (p. 10). Having found insufficient evidence to prove misconduct, he dismissed the allegations. V.

Standard of Review [ 47 ] With very limited exceptions (which do not apply here), reasonableness is the applicable standard whenever a court reviews administrative decisions: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , paras 16 and 17 .

It had been confirmed prior to Vavilov that the reasonableness standard applies on judicial reviews concerning section 45(4) of the Act : Szybunka v Edmonton (Police Service) , 2018 ABQB 164 , paras 28 and 29 ; McLeod v Chief of Police , 2018 ABQB 386 , paras 12-20 . [ 48 ] The focus of a reasonableness review “must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome”– thus, not asking what decision the court would have made but considering “only whether the decision made . . . – including both the rationale for the decision and the outcome to which it led – was unreasonable” ( Vavilov , para 83 ).

Further, “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” and deference must be given to such a decision ( Vavilov , para 85 ). [ 49 ] Thus, when reviewing a decision made by the Chief, deference must be given to him as a decision-maker with expertise in police conduct: Conlin , paras 58-62 ; McLeod , para 20 ; Szybunka , paras 28-30 . [ 50 ] A decision will be unreasonable if the reasons for it, read contextually and holistically for the purpose of understanding the basis on which it was made, fail to reveal a rational chain of analysis or where the conclusion reached cannot follow from the analysis: Vavilov , paras 97 and 103 .

Judicial review concerns both the outcome and the process: Vavilov , para 87 . VI. Findings A. Introduction [ 51 ] The Chief divided Mr. Kyambadde’s complaint into two sets of allegations. The first he described as “unlawful or unnecessary exercise of authority,” primarily whether unnecessary force was used during the arrest of Mr. Kyambadde. The second comprised three separate allegations which he treated together because they relied, in his view, on the same evidence: discreditable conduct (arresting Mr. Kyambadde by mistake), unlawful or unnecessary exercise of authority (again, for unlawfully arresting Mr.

Kyambadde), and discreditable conduct (arresting Mr. Kyambadde because he was black and had black clothing on). I also will treat this second group of allegations collectively as the second allegation. [ 52 ] Section 45(4) of the Act required the Chief to address two issues for each allegation. In the first place, he had to determine if it was “not of a serious nature” such that he could dispose of it without a hearing.

Only if he determined it was not of a serious nature could he go on, in the second place, to dispose of it pursuant to the Regulation , without a hearing. (If it was of a serious nature, the Chief would be required under section 45(3) to determine whether there was sufficient evidence to direct a hearing.) [ 53 ] Thus, on this judicial review I must address for each allegation whether it was reasonable for the Chief to decide it was not of a serious nature and, assuming that decision was reasonable, whether his decision to dismiss the allegation was reasonable. B. “Serious Nature” 1.

Adequacy of Reasons [ 54 ] There are obvious difficulties in reviewing whether it was reasonable for the Chief to determine that the allegations were not of a serious nature. [ 55 ] First, he never says that he is making that determination. The words “serious nature” do not appear anywhere in his decision.

We are left to infer when he might be considering that question – as I did in my overview of the decision earlier in these reasons. For such an important threshold question that is a significant deficiency. [ 56 ] Second, if we read the decision generously to infer that this question of serious nature was addressed, we cannot tell how it was addressed.

For ease of reference, I will repeat what the Chief said about “Legal Thresholds and Chief of Police Screening Function”: Alternatively, I may dispose of the allegations without a hearing and impose sanctions on the officers if there is sufficient evidence to prove the misconduct and the allegations can be dealt with under section 19(1) of the Police Service Regulation . If there is insufficient evidence to prove the alleged misconduct, then the allegations will be dismissed.

In discharging my screening function, I am to consider the strength, consistency and completeness of the available evidence and the factors set out in section 19(1.1) of the Police Service Regulation , and to use my experience in policing and my understanding of the CPS organization and its policies. [Pp. 2-3] [ 57 ] Both paragraphs put the issue backwards: under section 45(4) of the Act , the Chief does not consider if there is sufficient evidence (which goes to the question of disposing of the matter one way or the other) until he has determined whether it can be dealt with under the Regulation .

That may not of itself make the process and decision unreasonable, as long as the serious nature question is addressed. More important is whether the seriousness issue was addressed and, if so, how.

We are not given clear answers to those questions. [ 58 ] The second paragraph quoted above suggests that the Chief may have considered all of the factors he identifies in determining whether the contravention was not of a serious nature, although it is possible that he only considered the mandatory (but not exhaustive) factors listed in section 19(1.1) of the Regulation : namely whether the conduct may be an offence under the Criminal Code , a breach of the Charter , or

an act of deceit; whether the behaviour is non-cooperative or obstructive; and the disciplinary record. He does not specifically address any of them here nor anywhere in the decision. [ 59 ] We are no better informed on how that issue is addressed by looking to the substance of the decision on each of the allegations. For each of the two sets of allegations, he reviews the evidence collected during the investigation and finds that the officers acted reasonably based on the circumstances, their perceptions and their good faith.

Then, using exactly the same words to conclude his findings for each set of allegations, he states: Based on the evidence, it is my opinion that this allegation can be dealt with under section 19(1) of the Police Service Regulation . There is insufficient evidence to prove misconduct and as a result, this allegation is dismissed. [Pp. 7 and 10.] [ 60 ] One has to be very charitable to find that the decision even addressed the threshold question of whether the alleged contraventions were not of a serious nature.

If that is what was meant by arriving at the opinion that they could be dealt with under the Regulation , the Chief was required to say so. On such an important part of the decision the reasons must be transparent and intelligible: Vavilov , paras 83-86 and 136 .

Vavilov holds that the reviewing court must consider both the rationale for the decision and the outcome to consider whether the decision was unreasonable; where the decision maker has provided reasons, they are the means by which the rationale is communicated; a reasonable decision is one based on an internally coherent and rational chain of analysis; reasonableness is concerned with justification, transparency and intelligibility within the decision-making process; and, importantly: In short, it is not enough for the outcome of a decision to be justifiable .

Where reasons for decision are required, the decision must also be justified , by way of those reasons, by the decision maker to those to whom the decision applies. [Para 86, original emphasis.] [ 61 ] It is urged on behalf of the respondents that “the Chief explicitly noted his obligation to consider the above factors [listed in section 19(1.1) of the Regulation ], and that he would apply them to all allegations detailed within his Decision” (brief, para 13).

It is suggested that, in effect, we must then defer to the presumption that the Chief considered and weighed all relevant factors in light of the gatekeeper function the Act gives to the Chief. Further, the respondents argue that it was appropriate for the Chief to use his experience in policing and understanding of the CPS organization and policies and general expertise to make a decision (Respondents’ brief, paras 46-48). [ 62 ] I agree that a court reviewing the Chief’s decision must give deference to his expertise and role and cannot require detailed support for every step of the decision-making process.

However, in this case the decision is far too perfunctory on a critical threshold issue. If the specific factors in section 19(1.1) of the Regulation were addressed it is not apparent from the review of evidence and analysis and determination sections the decision contains for each allegation. [ 63 ] Rather the Chief reviews the evidence relating to the investigation and accepts the officers’ versions and explanations. Implicitly he does not accept contrary statements of Mr. Kyambadde and Mr. Obasan.

Putting aside for the moment whether he should have explained his evidentiary conclusions, it seems that he went directly to the task of determining how to dispose of the allegations without determining whether they were not of a serious nature. At best, he has only stated a conclusion on that point – mainly, “it is my opinion that this allegation can be dealt with” under the Regulation : pp. 7 and 10. In my view, the decision lacked the transparency and intelligibility required for it to be reasonable.

As in Vavilov , “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”: para 98. 2. How to Determine “Seriousness” Issue [ 64 ] That brings us to the question of what would be required for the issue to be properly addressed.

At minimum, such a decision should identify the issue being addressed (whether allegations are not of a serious nature) so that the complainant is not left in doubt; then identify what factors are being considered to answer that question; and then apply those factors, perhaps briefly, to the evidence available from the investigation.

[ 65 ] It is not my place to identify those factors. That is a task for the Chief, to which a reviewing court must give deference on a reasonableness basis. Some things can be said, however. [ 66 ] To begin with a trite point: section 45(4) of the Act governs, not

section 19 of the Regulation . It is unreasonable to limit the analysis to the factors in section 19(1.1) when the Act calls for an opinion on whether the alleged contravention is not of a serious nature. [ 67 ] Further, the opinion must be on whether the alleged contravention is not of a serious nature.

This is different from section 45(3) where what is required in deciding whether to direct a hearing is the Chief’s opinion on whether “the actions of a police officer constitute a contravention of the regulations.” That difference suggests, in my view, that the task in section 45(4) is focused on the nature of the alleged contravention – not whether it seems to be supported by any level of evidence. [ 68 ] Some guidance on what is meant by seriousness can be gleaned from the authorities on section 45(3), dealing with how a chief of police determines whether to direct a hearing.

In addressing this point, the Court of Appeal in Conlin stated as follows: [47] The seriousness of the allegations is a further relevant consideration in deciding whether to send a complaint to a hearing . . . [citing authorities]. There is a wide range of what might be considered unacceptable conduct by a police officer, ranging from isolated errors of judgment, through misconduct under the Police Service Regulation , up to breaches of the Criminal Code .

In addition to the ability to deal with matters “not of a serious nature” under s. 45(4), the chief of police is entitled to consider whether the evidence discloses conduct of sufficient severity that a presiding officer might find it to be misconduct under the Police Service Regulation. [48] For example, in the Conlin/Paesch matter, one allegation was that Constable Paesch did not double lock the handcuffs.

The evidence on this was contradictory, but it did appear that if the handcuffs were not double locked, it was only for a relatively brief period of time between when the handcuffs were applied and when the complainant was put in the police car. Even if there was some lapse or delay, or an error of judgment, there was no reasonable prospect that a presiding officer would find that it amounted to misconduct under the Police Service Regulation . [ 69 ] Thus, Conlin suggests a range of seriousness, with isolated errors of judgment being at the lower level.

In one of the cases before it, it seems to have viewed a failure to double lock handcuffs, even if that allegation was proved, as being at the lower end of seriousness. [ 70 ] The applicant’s arguments at times suggest that only frivolous or vexatious complaints qualify as being not of a serious nature. Reference is made to debates in the legislature on the proposed amendments to the Act that would remove the ability to appeal a decision by the Chief under section 45(4). During the debate, Minister Jonathan Denis stated that the bill would streamline the complaints process.

Further, “it’s going to deal with frivolous and vexatious complaints. These types of complaints, obviously, are going to be dismissed summarily, and I wanted to commend the [responsible minister] . . . for dealing with that and recognizing that, in fact, there can be frivolous complaints that are deceitful, that inveigle, that obfuscate the entire process”: Alberta Hansard, 27 th Leg., 3 rd Sess., November 24, 2010, p. 1610. [ 71 ] This statement was made by a government minister, but not the minister who introduced the bill.

That severely weakens the reliability of the statement as representing legislative intent – quite apart from the usual limits on the use of Hansard evidence.

In assessing the reliability of views expressed in the legislature, “a key consideration is whether those views originate with the government that introduced the legislation and were expressed by the responsible minister (or a representative) while carrying out Ministerial functions in the legislative process;” and “views expressed by other legislators are not often relied on by courts”: Sullivan, The Construction of Statutes , 7 th ed. (Toronto: LexisNexis Canada Inc, 2022), at 669 and 670. [ 72 ] The applicant also relies on section 43(7) of the Act , which allows a chief of police to recommend in writing to a police commission that a complaint about a police service or police officer be dismissed on the ground that it “is clearly frivolous, vexatious or made in bad faith.” That does not, however, assist the argument.

It tends in the opposite direction: a complaint that could not be dismissed on the grounds that it is clearly frivolous, vexatious or made in bad faith would survive to the section 45(4) stage but could still be disposed of without a hearing if it was not of a serious nature. [ 73 ] Instead, the limited guidance given by Conlin (albeit in relation to the section 45(3) test) seems a better basis for how the Chief should arrive at his opinion on whether an alleged contravention is not of a serious nature. Thus, whether the alleged contravention was an isolated error of judgment might be relevant.

Even that, however, need not be determinative. Some isolated errors of judgment might be very serious, whether considered through the lens of policing or more broadly. [ 74 ] In addition to the guidelines that may be drawn from Conlin , what is “serious” can be looked at as a matter of ordinary usage.

For example, “serious” has been defined as “important, demanding consideration”; and “not slight or negligible”: Canadian Oxford Dictionary , 2 nd ed., (2004) at 1416. [ 75 ] The respondents rely on the notion that whether the Chief’s decision was reasonable must be viewed from the policing perspective, not the complainant’s – relying on McLeod , para 53 and Conlin , para 49 . The respondents argue that every complaint is serious from a complainant’s perspective.

Representative of the respondents’ argument is the following: The Chief is an expert in policing and the legislature entrusted the screening role to the Chief so that he can bring his expertise to the assessment of the seriousness of police misconduct complaints. It is also logical for the Chief to view the matter through the lens of policing when assessing seriousness because all complaints would be classified as serious using the view of the complainants, which would defeat the screening function.

Accordingly, the Chief’s assessment of seriousness properly considers whether the complaint is serious in the world of policing based on the Chief’s experience of the types of interactions between police and civilians that he sees and experiences on a daily basis. [Brief, para 48.] [ 76 ] That passage emphasises why the Chief is given a gatekeeping role. However, the “lens of policing” must mean more than maintaining internal standards and discipline – although it includes those. As Conlin indicates in the context of the section 45(3) test on

whether a hearing should be held, the Chief is also entitled to consider “the need to maintain the reputation of the police service” and “the perception that an objective observer would have of the events” (para 50). Ignoring such factors, when relevant, would be an unreasonable approach to determining whether an alleged contravention was not of a serious nature.

Particularly that is so when, as here, the decision is addressed to the complainant as a member of the public. [ 77 ] In performing his gatekeeping role under section 45(4), the Chief is entrusted with the authority to determine that some alleged contraventions are not serious enough to justify the section 45(3) analysis of whether there is a reasonable prospect of establishing the facts necessary for a conviction at a hearing. The minor level of such allegations is indicated by the fact he cannot even issue a reprimand without consent of the cited officer ( Regulation , section 19(1)).

When considering whether an alleged contravention is not of a serious nature so as to enable the Chief to dispose of it without a hearing the Chief uses his expertise and experience as a senior police official, but that includes having regard to the reputation of the police service and the perception of an objective observer. Since his task is to determine whether an alleged contravention is not of a serious nature, it is unreasonable to conclude an allegation is not of a serious nature only because he chooses to prefer the account of the cited officers over other witnesses. 3. Relevant Factors for Mr.

Kyambadde’s Complaint [ 78 ] With these considerations in mind, in Mr. Kyambadde’s case the Chief should have addressed at least the following issues when arriving at an opinion on whether the alleged contraventions were not of a serious nature:

a) Was application of the LVNR a violation of the Regulation in this case? The Regulation makes “applying inappropriate force” an aspect of misconduct (section 5(2)(i)). CPS’s Use of Force policy states that the LVNR technique may only be used by someone trained and qualified in it (section 7.2.b.); and then only where a subject who can be lawfully detained: i. Has demonstrated or threatened resistance to lawful, arrest, detention or apprehension; or ii. Has demonstrated or threatened violent behaviour towards themselves, an officer or another person; and iii.

The use of the LVNR is reasonable given the circumstances [Section 7.2.a.]. All of the witnesses (police and civilian) agree that the LVNR was applied before any resistance and before announcement of police presence. Further, nothing in the record or the decision addresses whether Cst. Carston was “trained and qualified” in use of LVNR.

b) Did Mr. Kyambadde resist police after their presence was announced? Mr. Kyambadde denies this and Mr. Obasan seemingly corroborates his version. If Mr. Kyambadde’s version is accepted, the police conduct of forcing him to the floor and then striking him with twelve blows, by two officers, arguably was an excessive use of force. The Chief was obligated under section 45(4) to consider whether the allegations were of a serious nature, before deciding whether he believed them.

c) Was it not of a serious nature that Mr. Kyambadde alleged racial profiling in selecting him for apprehension and then in applying the type and amount of force to restrain him?

d) Was it not a serious allegation that Mr. Kyambadde was detained for about fourteen minutes in handcuffs after the three plainclothes officers concluded he was no longer the suspect being sought?

e) Was it relevant to the question of the allegations being not of a serious nature that Mr. Kyambadde’s apprehension and the application of force against him occurred in the public setting of a large retail store, in the presence of fellow employees? Part of addressing this question may be comparing Mr.

Kyambadde’s treatment with the low-key apprehension of the three suspects elsewhere in the store. [ 79 ] The point is not whether the Chief, acting reasonably, could have come to an opinion that the alleged contraventions were not of a serious nature upon considering factors such as the above, and probably others as well. That goes to the issue of whether the decision is justifiable . However, it must also be justified in the reasons: Vavilov , para 86 .

The Chief gives no justification in his decision for an opinion that the allegations were not of a serious nature; in fact, he fails to even articulate the question. [ 80 ] I therefore conclude that the Chief’s implicit decision that Mr. Kyambadde’s allegations about contraventions of the Regulations were not of a serious nature was unreasonable. Therefore, he was not entitled to proceed to dispose of the matter without conducting a hearing. C.

Misconduct [ 81 ] In light of my decision on the issue of whether the alleged contraventions were not of a serious nature, it is unnecessary to consider whether the decision to dismiss the allegations was reasonable if indeed they were not of a serious nature. However, as guidance, I will comment on one point. [ 82 ] The Chief accepted the statements of the three plainclothes officers, Csts. Carston, Goddard and Johnson. Implicitly, that might mean that he found the statements of Mr. Kyambadde and Mr. Obasan not credible, unreliable, or both.

For the decision to be reasonable, it must, however briefly, express what value was given to these two witnesses and why. D.

Summary of Findings [ 83 ] I find that the Chief’s decision of December 22, 2021 regarding Mr. Kyambadde’s complaint must be set aside, as being unreasonable. Counsel for the applicant and counsel for the respondents agree that the proper remedy is to refer the matter back to the

Chief for reconsideration under section 45(4), first as to his opinion on whether the alleged contraventions are not of a serious nature; and, depending on the answer to that question, either conducting the usual analysis under section 45(3); or disposing of the matter without conducting a hearing pursuant to the Regulations . [ 84 ] The parties may

schedule a further appearance to deal with any matters arising from this decision. Heard on the 24 th day of October, 2023. Dated at the City of Calgary, Alberta this 8 th day of January, 2024. G.H. Poelman J.C.K.B.A. Appearances: Gabriel Y.L. Chen Trent Bennett (Student-at-Law) for the Applicant Michael D. Mysak and Jaspreet K. Singh for the Respondents