59
of 1089
EPS Officer AB v Chief of Police, 2013 CanLII 74399 (AB LERB)
Date:
2013-11-20
File number:
2013-032
Citation:
EPS Officer AB v Chief of Police, 2013 CanLII 74399 (AB LERB), <http://canlii.ca/t/g1zl0>, retrieved on 2020-03-26
ALBERTA
LAW ENFORCEMENT REVIEW BOARD
Decision 2013-032[1]
November 20, 2013
Appellant:
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EPS Officer AB
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Respondent:
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Chief of Police
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Police Service:
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Edmonton Police Service
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Panel Members:
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Lynn Parish, Dave Rolfe
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CanLII Cite
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EPS Officer AB v. Chief of Police, 2013 CanLII 74399 (AB LERB)
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Summary: EPS Officer AB (the “appellant”) appeals his dismissal from the Edmonton Police
Service. A disciplinary hearing was conducted arising from service concerns with respect to the conduct of the appellant relating to allegations of alleged links between members of the EPS and Outlaw Motorcycle Gangs. The Presiding Officer found the appellant guilty on all but one of the 15 charges and imposed a penalty of dismissal from the EPS. The appellant appeals the findings on 14 charges and the penalty imposed by the Presiding Officer. The Board affirms the findings of the Presiding Officer on all but one of the 14 charges. | |
Authorities Considered: Robertson, LERB Decision 002-2009; Robertson, LERB Decision 004-2009; Robertson-Interim Decision, LERB Decision 021-2010; Leaney v. Stewart, LERB Decision 020–93; Robertson, LERB Decision 021-2010
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Cases Considered: Edmonton (Police Service) v. Furlong 2013 ABCA 177; Newton v. Criminal Trial Lawyers’ Association 2010 ABCA 399; Pelech v. Law Enforcement Review Board 2010 ABCA 400; Imperial Oil Resources Ltd. v. 826167 Alberta Inc., 2007 ABCA 131; Calgary (Police Service) v. Alberta (Law Enforcement Review Board) 2013 ABCA 124; R. v. Jolivet [2009] 1 SCR 751; Plimmer v. Calgary (City) Police Service 2004 ABCA 175; Allen v Alberta (Law Enforcement Review Board), 2013 ABCA 187; Fraser v. Public Service Staff Relations Board 1985 CanLII 14 (SCC), [1985] 2 S.C.R. 455; Haydon v. Canada 2000 CanLII 16081 (FC), [2001] 2 F.C. 82; Read v. Canada [2001] F.C. 82; Stenhouse v. Canada 2004 FC 375 (CanLII), [2004] 4 FCR 437
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Table of Contents
Background/Chronology of Events.................................................................................................. 3
Charges.......................................................................................................................................... 12
Preliminary Issue – Standard of Review........................................................................................ 15
Legislation Relevant to Charges.................................................................................................... 35
Proceedings Before the Board...................................................................................................... 37
Charges 1 and 2............................................................................................................................. 37
Charge 3........................................................................................................................................ 48
Charges 4 and 5............................................................................................................................. 54
Charge 6........................................................................................................................................ 60
Charge 7........................................................................................................................................ 67
Charge 9........................................................................................................................................ 73
Charge 10...................................................................................................................................... 79
Charges 11 .................................................................................................................................... 87
Charge 12...................................................................................................................................... 97
Charge 13.................................................................................................................................... 106
Charges 14 and 15....................................................................................................................... 110
Decision Summary....................................................................................................................... 116
BACKGROUND/CHRONOLOGY OF EVENTS
[1] There is significant history related to this appeal that the appellant and the respondent have relied upon in their submissions. In particular the appellant has sought to establish in relation to many of the charges that events justified him in acting as he did and for which actions he was then charged. The respondent has sought to establish the appellant is not credible and is alleging a conspiracy against him on an impossible scale, which has not been established. The chronology of events as understood by the panel is noted below with areas of particular dispute noted.
• The appellant had been a member of the EPS since 1980. At least prior to 1998, the majority of the evidence supports that he was a well-regarded member with generally positive performance reviews and a number of favorable notices and letters of commendation to his credit.
• The appellant had a particular interest in outlaw motorcycle gang (“OMG”) investigations dating back to his time as constable and had been tracking information relating to the infiltration of OMGs into EPS. In particular he had considered information relating to EPS Officer C.
• In August and September, 1996 when he was a constable, the appellant spent a few weeks seconded to the Edmonton Integrated Intelligence Unit (the “EIIU”) a joint RCMP/EPS unit focusing on organized crime groups, including OMGs. The EIIU had two Staff Sergeants as supervisors, one from the EPS and one from the RCMP.
RCMP Member A, a very experienced officer and investigator, was the RCMP supervisor from approximately June 1996. EPS Officer F became the EPS supervisor when he joined EIIU in the late summer of 1997.
RCMP Member A, a very experienced officer and investigator, was the RCMP supervisor from approximately June 1996. EPS Officer F became the EPS supervisor when he joined EIIU in the late summer of 1997.
• Early in 1997 the appellant was seconded to EIIU as a Temporary Acting (“T/A”) Detective to work on OMG investigations.
• In August and September 1997, intelligence obtained by the appellant pointed to contact between an EPS member and a stripper who was an OMG associate. The contact was assigned to EPS Officer E, another member of EIIU, for investigation.
• In early 1998, the appellant received his promotion to detective and was assigned to EIIU.
• On Date 1 the appellant and EPS Officer A, another member of EIIU, met with a confidential source. The source provided information about a detective allegedly providing information to the “Named Motorcycle Gang”. The information provided by this source, at this meeting and later, is an issue of considerable dispute. Specifically, the issue was if and when a communication was made to the appellant that a motorcycle gang had paid $$$[2] to a police informant. Subsequent to the meeting with the source, the appellant and EPS Officer A met with EPS Officer D, whose partner, EPS Officer B, was discussed as a possible match for the source’s information.
• The notes from EPS Officer A’s meeting with the source note that it was said that a detective was dirty and only the hierarchy knew who it was. In a memorandum of October 24, 1998 to EPS Officer O, EPS Officer A stated that there may have been conversation about the member being in a compromised position financially or otherwise but he did not recall. At the disciplinary hearing in 2004 EPS Officer A stated that on Date 1 an issue came up in the source meeting relating to the wife of a policeman and there were some sort of financial issues there.
• Between Date 1 and Date 6, the appellant and EPS Officer A had further meetings with the confidential source with the dates identified by EPS Officer A as Date 1, Date 2, Date 3 and Date 4, 1998.
• On May 20, 1998 EPS Officer O met with the appellant and EPS Officer A.
• In late May 1998, EPS Officer F became aware, as a result of a disciplinary investigation into the actions of EPS Officer D, that EPS Officer A and the appellant had information from a source about a possible leak to OMGs from within the EPS. He asked about this information. EPS Officer F felt that EPS Officer A and the appellant had different versions of the information provided by the source. EPS Officer F directed that the source be re-interviewed to clarify the apparent discrepancy.
• Shortly after this meeting, the source was re-interviewed by EPS Officer A and
EPS Officer E. The information provided by the source on this occasion did not point to EPS Officer B, or any other particular member of the EPS, as providing information to OMGs.
EPS Officer E. The information provided by the source on this occasion did not point to EPS Officer B, or any other particular member of the EPS, as providing information to OMGs.
• EPS Officer F met EPS Officer B on Date 6 to interview him about the allegations. The interview was not recorded and there are no notes.
• EPS Officer F prepared a memorandum of June 5, 1998 to his superior, EPS Officer G, about this matter which stated that he had discussed with the appellant and EPS Officer A, the allegation that EPS Officer B was passing information to the “Named Motorcycle Gang”. EPS Officer F stated that the detectives were not conducting any investigation into EPS Officer B. They had received very sketchy information on an unnamed member of the EPS and had little confidence in it so had been reluctant to act on it. The memorandum further stated the detectives had confidence in EPS Officer B’s partner who had immediately stated that he did not believe it and expressed his strong support for EPS Officer B. EPS Officer F also added that that he had met with EPS Officer B and told him about the information which came as a surprise to him. In the estimation of EPS Officer F, EPS Officer B was forthright, emphatic and truthful in his denial of any association with any bikers.
• Through the balance of May and June of 1998, the evidence of EPS Officer F and
RCMP Member A was that they became increasingly concerned that the appellant was acting in an uncharacteristic manner, and were concerned about his mental health. The appellant denied then, and denies now, that there has ever been any issue with his mental health.
RCMP Member A was that they became increasingly concerned that the appellant was acting in an uncharacteristic manner, and were concerned about his mental health. The appellant denied then, and denies now, that there has ever been any issue with his mental health.
• On Date 5, the appellant and EPS Officer A met with the source. The appellant recorded this interview but did not tell EPS Officer A he was doing so.
• In late June or early July of 1998, EPS Officer F approached EPS Officer O of EPS Employee and Family Assistance, with a concern that the appellant’s behavior might be the result of psychological problems. The concerns were discussed at a meeting with EPS Officer F,
EPS Officer O, and Dr. 5, a psychologist for the EPS. It was decided that EPS Officer O would approach the appellant about the concern over mental health issues.
EPS Officer O, and Dr. 5, a psychologist for the EPS. It was decided that EPS Officer O would approach the appellant about the concern over mental health issues.
• On July 2, 1998, EPS Officer O met with the appellant. According to EPS Officer O, he attempted to persuade the appellant to have a voluntary psychological assessment. According to the appellant, EPS Officer O ordered him to attend for a psychological assessment.
• The appellant subsequently booked an appointment with Dr. 6, a psychologist used by the EPS, although he did not attend for any assessment.
• On July 9, 1998 a probationary review was completed by EPS Officer F and EPS Officer G in respect of the appellant. The review recommended the appellant be confirmed to the rank recommended and rated his abilities in all categories as above average or outstanding.
• On July 30, 1998 EPS Officer D wrote to Det. Bohachyk concerning allegations of misconduct against him with regard to the training of an agent. The memorandum stated that on Date 1, the appellant and EPS Officer A had told him that EPS Officer B was supplying information unlawfully to the “Named Motorcycle Gang”. Although he did not want to believe the information, he stated that more than sufficient grounds existed to begin an investigation and that it should be done through EIIU. The memorandum goes on to explain how EPS Officer D thought that training the agent was one way in which he could assist any investigation into EPS Officer B. At the same time he was unable to discuss EPS Officer B as he had told the appellant and EPS Officer A that he would say nothing. Further he did not trust many people at EPS and knew that EPS had a reputation with regard to leaking information.
• On August 25, 1998 EPS Officer A sent a memorandum to Det. Bohachyk of EPS Internal Affairs Section concerning the investigation of EPS Officer D. The statement recognized that situations had occurred where targets had been tipped off about police investigations and that he had been exposed to investigations and privy to information suggesting unethical behavior on the part of EPS members. The statement went on to state that he and the appellant had met with EPS Officer D on Date 1 to discuss whether he had witnessed anything suspicious surrounding one of his coworkers.
• On September 2, 1998 the appellant was interviewed by Det. Bohachyk in relation to the disciplinary allegations against EPS Officer D. During that interview, the appellant mentioned the source information that allegedly implicated EPS Officer B in passing information to OMGs. He subsequently submitted a memorandum dated September 8, 1998 about the source interview to Det. Bohachyk.
• On or about September 29, 1998, EPS Officer O followed up with the appellant to find out when he would be seeing Dr. 6 (the psychologist).
• In a memorandum dated October 1, 1998, the appellant challenged EPS Officer O’s direction that he attend for a psychological assessment. EPS Officer O replied on October 6, 1998 that he would prepare a response. In a separate memorandum dated October 1, 1998, the appellant wrote to Chief Lindsay detailing allegations against EPS Officer O and stating that he would take no further steps unless they were required.
• On October 15, 1998 RCMP Member A wrote to EPS Officer O setting out details of conversations he had with the appellant on June 15, 1998 and July 2, 1998.
• On October 16, 1998 EPS Officer F wrote to EPS Officer O formally detailing his concerns with regard to the appellant.
• On October 24, 1998 EPS Officer A wrote a memorandum to EPS Officer O describing the events of Date 1.
• In a memorandum dated October 26, 1998, to EPS Officer P, of EPS Human Resources Division, EPS Officer O documented the basis for the concerns about the appellant’s mental health and recommended that the appellant be required to attend a formal fitness–for-duty assessment.
• In a memorandum dated October 27, 1998 to Chief Lindsay, the appellant raised further allegations about the actions of EPS Officer F and EPS Officer O in seeking to have him attend with a psychologist.
• In a memorandum dated October 29, 1998 S/Sgt. Nowlan, of EPS Internal Affairs Section, directed the appellant to provide a detailed account of any information he had that implicated EPS Officer B in misconduct. The appellant did not respond to that memorandum.
• On November 9, 1998 Chief Lindsay wrote to the appellant stating that there had been no contravention of any regulations by EPS Officer O or EPS Officer F. The Chief directed the appellant to attend for a fitness-for-duty evaluation and not to attend an OMG conference in November 1998.
• On November 25, 1998 the appellant attended with Dr. 4, a physician, for an introductory meeting. A letter from EPS Officer O to the medical centre of November 18, 1998 explained the background to the request for an assessment, including concerns that the appellant was paranoid in certain respects.
• A letter from Dr. 4 of November 27, 1998 to Chief Lindsay stated that he had not proceeded with a medical examination based upon a preliminary meeting with the appellant and the background he had been given. Dr. 4 stated that the background information provided only gave some slight credence to the observations noted by the appellant’s supervisor and other points of concern raised were of minimal relevance. He understood there may have been some coercion for the appellant to take part in the examination on the basis that refusal might lead to job consequences. His assessment of the appellant from a one hour conversation was that he was alert with no psychomotor abnormalities and no thought disturbances. In the circumstances Dr. 4 felt the issue was more appropriate to be dealt with through administrative channels than through physical and psychological methods.
• On January 5, 1999 the appellant was notified by EPS Officer F that he was transferred from EIIU to Serious Offenders Section. This transfer was initiated by EPS management. On January 8, 1999 the appellant wrote to EPS Officer Q concerning his transfer.
• On January 10, 1999 the appellant sent out a memorandum to a number of OMG investigators across Canada setting out events as he saw them, leading up to his transfer out of EIIU.
• On January 10, 1999 the appellant wrote to EPS Officer P to request copies of any information about him that was sent to Dr. 4. In reply to the appellant on
January 18, 1999, EPS Officer P stated that the appellant should provide all information he had regarding allegations of harassment by individuals in Special Investigations and Human Resources Divisions, and that any documents the appellant requested were confidential information for use by EPS, that they did not form part of his personal service file, and were therefore not available.
January 18, 1999, EPS Officer P stated that the appellant should provide all information he had regarding allegations of harassment by individuals in Special Investigations and Human Resources Divisions, and that any documents the appellant requested were confidential information for use by EPS, that they did not form part of his personal service file, and were therefore not available.
• On January 15, 1999 EPS Officer G requested the appellant to provide to him any information in his possession in support of his allegations set out in the memorandum of January 10, 1999.
• On January 20, 1999 EPS Officer G wrote to the appellant with information concerning his new position including that he was not to leave the building for investigative purposes without the express permission of his superior.
• On January 25, 1999 EPS Officer G wrote to the appellant to inform him that he was being transferred to Economic Crimes Section.
• On January 25, 1999 the appellant wrote to Chief Lindsay concerning the request to the appellant to bring information forward. The appellant documented what he had done so far and his concerns that the statement by EPS Officer G that he had neglected to bring evidence forward was inaccurate and misleading. The letter further documented the appellant’s transfer out of EIIU and direction given to him not to leave the building for investigative purposes without the permission of his superior. The appellant stated that he had provided information in October 1998 about harassment of himself. A handwritten note by an unidentified person at the end of the letter asked whether this was a complaint.
• On February 1, 1999 Chief John Lindsay ordered the appellant to provide any information in his possession to EPS Officer G in support of his allegations.
• On February 4, 1999 Chief Lindsay met with the appellant’s counsel in relation to the appellant’s concerns.
• On February 24, 1999 Chief Lindsay wrote to Deputy Chief Wasylyshen regarding terms of reference for a review of the appellant’s allegations. Chief Lindsay acknowledged that he had spoken with the appellant’s counsel who had stated the allegations should be taken seriously. The Chief stated that he agreed with this position for reasons that the allegations were serious, that the credibility of the unit was at stake and to preserve the future of the Criminal Intelligence Service Alberta (CISA). It was stated that the investigation was not a service investigation but was to review the facts surrounding the allegations.
• A memorandum of February 25, 1999 from Deputy Chief Wasylyshen to Chief Lindsay recommended that an investigation plan had been established to look into the allegations made by the appellant.
• In the latter part of February, 1999 Chief Lindsay established a four-person team to conduct a preliminary investigation (“Project Probe”) into the appellant’s allegations of information leaks and OMG association and to see if there were any matters that required further investigation or action. The team consisted of two detectives from each of the
EPS - Det. Anderson and Det. Quast, and the RCMP, Sgt. Beck and Sgt. Dunn.
EPS - Det. Anderson and Det. Quast, and the RCMP, Sgt. Beck and Sgt. Dunn.
• On March 1, 1999 Det. Anderson and Sgt. Beck met with the appellant. Both on that day and subsequently, the appellant declined to be interviewed about his allegations by the Project Probe investigators.
• On March 9, 1999 EPS Officer D wrote to the Edmonton Police Commission filing a complaint against Chief Lindsay and alleging situations where EPS had failed to investigate links between EPS and organized crime.
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