An Edmonton lawyer has won her bid to have the Edmonton Police Service conduct a disciplinary hearing in regards to an officer who allegedly had an improper motive in arresting a local defence counsel for suspected impaired driving in 2011.
Earlier this month, the Alberta Law Enforcement Review Board issued a decision
directing Police Chief Rod Knecht to lay charges of unlawful or unnecessary exercise of authority and discreditable conduct against Const. D. Woodburn in relation to his actions against a defence counsel he had arrested and charged a few years prior to getting a text message in 2011 from an off-duty officer telling him he had seen the lawyer drinking at a bar. The Crown had stayed the earlier charge in December 2009, and when Woodburn got the text message in 2011, he tracked down the defence counsel, identified in the Law Enforcement Review Board ruling only as A.B., at a venue the off-duty officer had told him he might be driving to after leaving the bar.
“What got me was the personal animus or the motivation was in my view flagrant,” says Aleksandra Simic, the Edmonton lawyer who appealed Knecht’s earlier decision to dismiss the complaint about Woodburn’s actions without a disciplinary hearing and who was with A.B. at the lounge and at the time of his arrest in 2011.
Woodburn arrested A.B. after he and other lawyers and friends had been socializing at a downtown Edmonton lounge. The off-duty officer, who was with the group at the lounge, at one point sent a text message to Woodburn to ask if A.B. was the same lawyer he had once charged with obstruction of justice for giving someone advice on his right to silence. The officer later sent Woodburn another text message to let him know A.B. had been drinking and might drive.
Rather than notify patrol officers, Woodburn, who was working undercover at the time, drove to where he believed A.B. was going. Upon stopping him at a parking lot, he arrested A.B. and took him to a police station for a breath test. He didn’t administer a roadside alcohol-screening device and ultimately chose to forgo the breath test at the station. Instead, Woodburn issued A.B. a roadside licence suspension under the Traffic Safety Act.
In dismissing the allegations against Woodburn, Knecht found there was no reasonable prospect of establishing the facts for a conviction at a disciplinary hearing. Among other things, he found there were objective and subjective grounds for arresting A.B. based on information the officer had about A.B.’s suspected impairment. That information included Woodburn’s own observations of signs of impairment when he stopped A.B. and comments sent via text message from the off-duty officer at the lounge that the lawyer had been drinking and was about to drive.
The Law Enforcement Review Board, however, took issue with the chief’s decision on that issue. “The Chief, in analyzing whether the respondent had grounds to arrest AB, did not consider whether the respondent reasonably or truthfully formed his reported opinion about AB’s impairment,” wrote the panel in its July 7 decision.
“In determining this question, the Board’s view is that the Chief went beyond his proper screening role. The Chief did not question the veracity of the respondent’s statements about what he had observed; he took those statements fully at face value. The Chief accepted the respondent’s reported observations about symptoms of AB’s alleged impairment, notwithstanding a significant amount of evidence that these were not reasonably supportable observations. The respondent’s knowledge at the time he detained and arrested AB can only reasonably be determined in a hearing, with cross-examination.”
As part of its decision, the board noted “a number of unorthodox aspects” to A.B.’s arrest, including the fact Woodburn didn’t administer a roadside screening device and didn’t end up having the lawyer undergo a breathalyzer test at the police station.
It also criticized Knecht’s decision for looking at the various aspects of the complaint as nine discreet allegations rather than looking at them as a whole. Simic says she was happy to see the comments on that issue as she felt it was important to consider the complaint as a whole in order to see the big picture of what happened. “I liked that they looked at the totality of the circumstances instead of dissecting everything,” she says.
Still, while she’s happy the matter will now go forward, Simic has some concerns about the length of time the case is taking given the original incident dates back to 2011. “It kind of leaves you with a sinister view that it can take this long,” she says.