C-034 - Conduct Authority Decision

The Appellant was involved in an interaction with a handcuffed and possibly intoxicated suspect who ultimately landed head-first on a cell block floor and suffered a facial wound which required stitches (Incident). The Appellant drafted police reports and notes regarding the Incident, which was captured by Force cameras (CCTV footage of the Incident). In those reports and notes, the Appellant framed the Incident as a failed attempt by him to physically stabilize a reeling suspect. The suspect complained about the Incident, and the Appellant became the subject of an assault charge that was stayed two or so years later. Two allegations were made against the Appellant, namely: (1) he used inappropriate and unwanted force on the suspect, contrary to section 5.1 of the Code of Conduct; and (2) he provided false or inaccurate documentation on police reports in relation to the harm sustained by the suspect, contrary to section 8.1 of the Code of Conduct.

Following an investigation wherein the Appellant made a detailed statement, and a Use of Force authority furnished a report deducing that the Appellant used inappropriate force on the suspect, a Conduct Meeting was held at which the Appellant declined to supply submissions. His lawyer explained that it was “improper” to continue with the Appellant's conduct process while a related criminal process was ongoing. The Respondent chose to proceed with the Conduct Meeting. In light of the CCTV footage of the Incident, Use of Force report and other evidence, he concluded that both allegations were established and imposed various conduct measures. The Appellant tendered an appeal and two submissions with attachments. His first submission was presented within the statutory limitation period and contained two arguments. His second submission was filed months later and contained three more arguments, including one that the Respondent denied him procedural fairness by ignoring the concern raised by his lawyer at the Conduct Meeting.

The ERC found that multiple documents attached to the Appellant's first appeal submission were inadmissible on appeal, as they could have been but were not submitted to the Respondent. It further found that two of the arguments set out in the Appellant's second appeal submission, including the procedural unfairness argument, were inadmissible on appeal, as they could have been but were not asserted at the Conduct Meeting or in the first appeal submission.

The ERC then found that the Appellant's three admissible grounds of appeal lacked merit. First, it found that omissions to pursue and assess the evidence of a Sergeant who viewed the CCTV footage of the Incident could have been a palpable error, but not an overriding error, given that the evidence was inconclusive and that the Respondent had not only also viewed the same footage, but did so with the benefit of other evidence which lent context to it. Second, the ERC found that the Respondent did not err by measuring the Appellant's perceptions of the Incident against the CCTV footage of the Incident, as there were no positions or evidence before him on the soundness of such an approach, and the supporting evidence provided by the Appellant on appeal was unhelpful. Third, the ERC found that the Respondent's citing of an assault charge against the Appellant as an aggravating factor was valid, even though that charge was stayed, as it is clear from Conduct Policy that a charge can be aggravating notwithstanding its outcome.

The ERC recommended that the appeal be denied.

The Commissioner's decision, as summarized by her office, is as follows:

The suspect was arrested. When he arrived at the X Detachment booking station, the suspect refused to comply with the instructions of the arresting officer, Cst. X. The Appellant was called to assist Cst. X and escorted the suspect to the cell block booking area. During the time in question, the suspect was handcuffed behind his back. The suspect subsequently resisted when the Appellant attempted to lodge him in cells for the night. The Appellant tried to gain control over the suspect. However, during a four-second incident, the suspect pulled away and began to fall headfirst in one direction. The Appellant prevented the suspect from falling in that direction, however, the Appellant's response caused the suspect to fall in another direction and he hit his head on the floor. The Appellant and Cst. X attempted to provide first aid to the suspect and they immediately notified their supervisors who attended the scene. Paramedics arrived and transported the suspect to the hospital where he received medical care before being returned to police custody the same evening. Both the Appellant and Cst. X provided written reports of the incident the same evening, without observing the CCTV recording of the incident.

On or about May 21, 2015, the suspect's defence counsel made a complaint that police reports were inconsistent with his review of the CCTV recording and alleged that his client was assaulted by the police. A Code of Conduct investigation was initiated into these allegations. On May 5, 2016, a Notice of Conduct Meeting was served on the Appellant, alleging a breach of sections 5.1 and 8.1 of the Code of Conduct. On May 10, 2016, the Appellant's criminal lawyer advised the Respondent in writing that he believed it was improper to hold the conduct meeting prior to the outcome of the criminal proceedings (which had not been stayed yet) and that the Appellant would not be providing any submissions during the conduct meeting. During the conduct meeting on May 13, 2016, the Appellant's lawyer raised two preliminary issues, and repeated his request for a postponement of the conduct meeting until after the criminal matter had been resolved. Neither issue was addressed in the Record of Decision (ROD) and the conduct meeting proceeded. The Appellant, at the advice of counsel, made no submissions on the substance of the allegations.

In the ROD dated May 20, 2016, (and served on May 24, 2016) the Respondent relied on the UFE report and found both allegations were established on a balance of probabilities. On April 3, 2017, the criminal charge against the Appellant was stayed. On February 4, 2020, the ERC issued its report in which it concluded that the Respondent's decision was not clearly unreasonable and that the Conduct Appeal should be denied.

The Conduct Appeal Adjudicator (Adjudicator) accepted ERC recommendations on admissibility of both new evidence and late submissions, however, disagreed with the other ERC recommendations. The Adjudicator found the Respondent's decision was clearly unreasonable because it did not address preliminary issues raised by the Appellant's lawyer. The Adjudicator found that while the Appellant's reports did not describe events exactly as they appeared in the CCTV recording, they honestly described his perception of what happened at the time. The Adjudicator also found that while the Appellant's reaction to the suspect 's pulling away was imperfect, the Appellant did not mean to harm the suspect and his actions were objectively reasonable in the circumstances. The Adjudicator found that the allegations that the Appellant had breached sections 5.1 and 8.1 of the Code of Conduct were not established and rescinded the conduct measures.