Where a practitioner raises the mitigating factor of the practitioner’s illness, who has to prove what? This issue was squarely raised in Braile v Calgary (Police Service), 2018 ABCA 109, http://canlii.ca/t/hr36m. The police officer was found guilty “for misconduct connected with a prolonged and dangerous high-speed police chase on December 15, 2008 in Calgary, contrary to CPS policy, which resulted in serious injury to an individual unconnected with the chase.” At the penalty phase of the hearing the police officer raised, as a mitigating factor, that he was in a manic phase of a bi-polar disorder.
The Court held that the burden of proof was on the practitioner to establish the presence of a mitigating factor on a balance of probabilities. The practitioner would have to establish both the presence of the illness and that the illness caused or contributed to the behaviour in issue. The Court upheld as reasonable the tribunal’s finding that it had not been established that the police officer was experiencing manic symptoms at the time of the high-speed car chase.