The Alberta Court of Appeal has granted leave to appeal in a case involving a complaint to the Edmonton Police Service. The main dispute is whether the chief of police’s record of investigation should be confidential.

In Edmonton (Police Service) v. Alberta (Law Enforcement Review Board), Sheryle Carlson made a complaint about a police officer to the EPS on June 23, 2010. The EPS investigated and the police chief dismissed the complaint on Feb. 8, 2011. Carlson then appealed to the Law Enforcement Review Board. At this point, there is usually a public hearing before the board, but there was contention over what access the public should have to the record before the board.

Thomas Engel, counsel for Carlson, argued that once the record is filed with the board, it should be made public. However, police chief Rod Knecht argued that members of the public should be required to go through the Freedom of Information and Protection of Privacy Act process.

“What the chief wants is to force the public and the media into the FOIPP process . . . Basically they want to obstruct public access to the materials,” says Engel, who is also chairman of the Criminal Trial Lawyers’ Association policing committee.

“We view this as the chief of the Edmonton Police Service not walking the transparency talk,” he says.

The board ruled that the chief can redact parts of the record before it’s presented to the board and if the other parties aren’t satisfied with that, they can file an application for leave to appeal. The board also said that once it gets to a hearing, the whole record would become available to the public unless in the interim the chief or any other party applies for a sealing order.

Knecht wasn’t satisfied with the board’s ruling and appealed to Alberta’s appeal court.

Specifically, Knecht sought leave to appeal on the following questions:

“1. Did the board err in law by determining that the implied undertaking, which applies to information contained in the record, is exhausted on the date of the oral hearing or after the written submissions have been received (‘the close of the hearing’)?

2. Did the board err in law and breach its duty of fairness in determining the circumstances in which the record would be made publicly available following an appeal when that issue was not before the board?

3. Did the board err in law by determining that the record becomes publicly available at the close of the hearing, unless the chief or the parties to the appeal apply for a sealing order or apply to have some or all of the record redacted?”

In granting Knecht’s application for leave to appeal, Alberta Court of Appeal Justice Jack Watson wrote: “[T]he chief has an arguable case regarding the questions. Moreover, I consider them important, as they touch upon the highly important matter of transparency in the civilian oversight of policing, on the one hand, and upon the use of information of a sensitive nature likely to be contained within a record, on the other. The board’s reasons and their memorandum on this motion do not suggest otherwise.”

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