Most bodies that screen complaints use a variation of a two-part test in determining whether a discipline hearing is indicated:
- Is the complaint serious enough to warrant a referral to discipline?
- Is there a reasonable prospect of proving the allegations?
If the answer to either of those questions is “no”, then there is usually a discussion of whether the concerns warrant some sort of remedial action, perhaps to prevent similar concerns from arising in the future.
In Kyambadde v Calgary Police Service, 2024 ABKB 13 (CanLII), there was extensive discussion of the first part of the screening test.
An employee of Walmart took off their store vest while on break. At the same time, police were in the store searching for a group of thieves who had assaulted victims in the past. The police mistook the employee as a member of the group and without warning violently detained him, including putting him in a choke hold and punching him several times. The employee was kept in handcuffs in public for about 15 minutes, even after the police realized their mistake, while they searched for other suspects. The employee, who was Black, made a formal complaint about the police, alleging that they were the victim of racial profiling.
The Chief of Police screening the complaint decided to take no action, noting the perceptions of the police officers at the time, including their statements that the employee was resisting them. On judicial review, the Court was concerned about the Chief’s handling of the seriousness part of the screening test. In particular:
- In his reasons, the Chief did not specifically address the seriousness part of the screening test. Even if it could be inferred that the Chief considered the issue, they did not explain why that part of the test was not met.
- To be serious, a complaint must be “‘important, demanding consideration’; and ‘not slight or negligible’”.
- The Chief seemed focussed on the second part of the test – the quality of the evidence in support of the allegation – by accepting the information provided by the police officers without explaining why the contrary information of the complainant and another witness (e.g., whether the employee resisted) was not accepted. By doing so, the Chief failed to consider the seriousness of the complaint itself, as required, but only the seriousness of the conduct that the Chief felt actually occurred. This conflation of the two parts of the test meant that the Chief was not addressing the conduct as alleged when evaluating its seriousness.
- The Court agreed that in assessing the seriousness of the complaint, the conduct should be viewed from the “lens of policing” rather than from the perception of the complainant. Complainants would likely view their complaints as serious. However, the policing lens was not the only consideration and the Chief should also take into account:
“… 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.
- The Court observed that the more limited the remedial options under the legislation (e.g., if registrant consent is required), the more likely that a less serious complaint would warrant a referral to discipline.
- The Court noted that there were concerning circumstances that were also not addressed in the Chief’s reasons regarding seriousness. These included that it was agreed that the police had not identified themselves before beginning to apprehend the complainant, the use of the choke hold, the number of punches to the complainant, the complainant’s assertion that they had not resisted the detention once the police identified themselves, the public setting (including in front of shoppers and coworkers), the delay in releasing the complainant after identifying their employee status, and the concern that the conduct may have involved racial profiling.
The Court returned the matter for a new decision with direction to address the seriousness test.
Regulators screening complaints should identify the test they use and systematically address the components of that test in their reasons for decision. Screening committees need to ensure that they do not conflate the two parts of the test and recognize that they are distinct. Even if the regulator determines not to refer a complaint to discipline in light of the second part of the test (i.e., no reasonable prospect of proving it), it would be prudent to indicate that it is, therefore, unnecessary to address the first part of the test.