The Police Act states that a complaint matter can be reopened for further investigation within 30 days of its dismissal if it is in the public interest to do so, or at any time if new information becomes available that requires investigation. The Commissioner reopened a complaint more than 30 days after it had been summarily dismissed citing the public interest provision as the basis. The body of the order noted that new information had been received, and suggested this was the reason for reopening the matter. The Chambers judge characterized the failure to cite the proper provision as a technicality and upheld the order. The Court of Appeal quashed the order, holding that the defect went to the heart of the Commissioner’s jurisdiction, and the court had no authority to cure a defective order made under the Act.

Administrative law – Decisions of administrative tribunals – Police Commission – Investigations – Disciplinary proceedings – Public interest – Judicial review – Jurisdiction – Compliance with legislation

Vancouver (City) Police Department v. British Columbia (Police Complaint Commissioner), [2014] B.C.J. No. 908, 2014 BCCA 181, British Columbia Court of Appeal, May 12, 2014, N.J. Garson, A.W. MacKenzie, P.M. Willcock JJ.A.

Two police officers received information from a confidential informant that someone had hired him to kill someone; before warning the intended victim, she was killed. The victim’s mother filed a complaint against the officers which was summarily dismissed. Under section 54(6)(a)(ii) of the Police Act, the Commissioner could reopen the matter for further investigation within 30 days of the dismissal if he deemed it to be in the public interest. Under section 54(8), he could reopen it for further investigation at any time after the dismissal if new information was received that required investigation. After the 30-day period expired, the Commissioner reopened the investigation, citing the public interest provision as the basis. However, the body of the order referred to new information that had been received and suggested that was the reason the investigation was reopened.

On appeal, the chambers judge found that the Commissioner had made the order under the new information provision despite the fact that the order cited the public interest provision, and the order was therefore not defective as the appellants argued. In the chambers judge’s view, if there were any defects, they were merely technical. The Court of Appeal quashed the Commissioner’s order. The Commissioner had exceeded his jurisdiction by making an order to reopen an investigation on the basis of the public interest provision outside of the 30-day period, and the chambers judge erred in law by characterizing the defect in the order as merely technical. The defect went to the “very heart” of the Commissioner’s jurisdiction, and the Court had no authority to cure a defective order made under the Police Act.

This case was digested by Kara L. Hill of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at khill@harpergrey.com or review her biography at http://www.harpergrey.com.

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