Police misconduct: to complain or sue?

*Note: This post deals with complaints against municipal police forces only.

If you’ve had a traumatic experience involving police behaviour that didn’t seem fair or right to you, it can be difficult to decide on your next steps. If your experiences have you feeling harassed or intimidated, the idea of holding the police accountable might seem daunting. No one can make the final call except you. However, if police accountability is something you feel strongly about, here are a few factors you may want to consider as you move forward.

There are two main ways of seeking police accountability in Alberta. The first is via a complaint to the RCMP, a First Nations police service, or a municipal police service (in Alberta this includes the Calgary Police, the Edmonton Police, and the Lethbridge Police). The second is via a civil action for damages against the police.

Each method of seeking police accountability has pros and cons. No one can tell you for sure what the right decision is, because every situation is different. However, here are some things that I consider, as a lawyer, when giving clients and prospective clients advice about how to proceed.

Police complaints: pros and cons

The police complaint procedure in Alberta does not occur in court. Instead, police complaints about a municipal police force go to the Chief of Police for that police service. The Chief decides whether the complaint has merit. If the Chief concludes it doesn’t have merit, you have the right to appeal that decision to the Law Enforcement Review Board. If the Chief decides it does have merit, the police service in question will likely attempt informal resolution with you. If an informal resolution cannot be reached, the Chief of Police will cause your complaint to be investigated. After investigation, the Chief will conclude that the misconduct was not serious, hold a hearing into the misconduct, or refer the matter to the Public Prosecution Service of Canada (this only happens if a police actor has committed a crime). For more information about the police complaint process, please see the explainer at the Alberta Civil Liberties Research Centre.

One big drawback to this process is that you will not receive monetary damages for injuries you may have suffered. In addition, you may feel dissatisfied with a complaint structure that gives the Chief of Police so much power. Also, very few complaints proceed to the investigation stage. The Calgary Police reported in 2020 that 10% of complaints resulted in a formal investigation and disciplinary process. However, if you are dissatisfied with the Chief of Police’s decisions, you may have the ability to appeal to the Law Enforcement Review Board (LERB). LERB decisions are appealable via judicial review in the Alberta Court of Queen’s Bench.

One advantage of the police complaint process is that there is no risk that costs will be awarded against you if you lose. Another advantage is that the process is more public than suing for damages. If it’s important to you that the police be held publicly accountable, this may be a more attractive method of seeking accountability for you.

Lastly, police complaints are less expensive than suing. Prison & Police Law charges a flat fee of $1000 to assist you in making a complaint. You can also make a complaint yourself.

Suing the police: pros and cons

If you decide to sue the police, you will need a lawyer. While it’s possible to sue the police yourself, the process can be long and quite confusing. Unfortunately, this means that suing the police for injuries you suffered or income you lost as a result of police misconduct is more expensive than making a complaint. Some lawyers may be willing to represent you via a contingency fee agreement, which means they represent you for free and take a portion of the money you win (usually 30%). However, lawyers are sometimes unwilling to do this on cases that don’t seem likely to succeed. In that case, you will need to pay for the litigation yourself. This is much more expensive than a police complaint and frequently costs multiple thousands, sometimes tens of thousands of dollars.

However, if you have suffered serious harm as a result of police misconduct, suing may be a better means of resolving your concern because it’s possible you will receive compensation. The process of filing a lawsuit is also more private than a police complaint, so you will need to decide which is more important to you: being compensated or holding the police publicly accountable. Most of the time, lawsuits settle before they reach the trial stage, so just statistically it’s unlikely you will have the opportunity to testify at a public trial. For some, this is a relief; for others, it’s disappointing to not be able to ensure that the public knows what happened to you. Some settlements involve promising you won’t talk about the incident in the future, so that’s another factor you will want to consider.

If you are unsuccessful, you also run the risk of having to pay a costs award: an amount that the court thinks is reasonable to compensate the other side for their court fees. This is not a risk if you use the complaint process.

What’s the takeaway?

Only you can decide what type of resolution fits your situation best. However, if you’re still confused, please contact Prison & Police Law to talk your situation through.