C-061 - Conduct Board Decision

The Appellant was the sergeant in charge of a cell block at a detachment.  In the spring, the Appellant and Ms. X, a city employee from the same detachment, started texting each other on work and non-work-related topics. Over the course of the next few weeks, their text exchanges became sexually charged. Ms. X and the Appellant then became sexually intimate while at work and while both were on duty. At the end of the summer, Ms. X allegedly told the Appellant to stop texting her and that she wished to stop the relationship.   

Ms. X unexpectedly met the Appellant, who was at the end of his shift, in one of the detachment stairwells, as she rushed into the detachment to begin her shift. Their version of events differs, but the gist of the event is that Ms. X performed fellatio on the Appellant. Both agree, however, that they suddenly stopped. Ms. X approached a colleague of hers and told her what happened. On the same day, the supervisor was made aware of the situation, as well as the Conduct Authority. An investigation was mandated and the Appellant was arrested for sexual assault. The Crown elected not to proceed with charges.

The allegations proceeded by way of a contested hearing. However, there was a “Determination of Established Facts” filed before the Initial Board at a pre-hearing conference. Considering the delay between the Notice of Hearing and the actual hearing dates, the Member Representative filed a motion for a stay of proceedings. The Initial Board denied the motion, indicating that while the delay was unacceptable, it did not rise to the abuse of process threshold. However, the delay “may” be considered by the Board later in the proceedings. In the meantime, the Initial Board was replaced by another Board.  

The Board found both allegations established. For the purposes of the allegations phase, the Board stated that it did not need to determine whether the Appellant was in a position of authority over Ms. X or whether the sexual contact was unwanted, because the sole act of having sexual contact while on duty, at the detachment was discreditable. The issue of authority and consent would be dealt with at the conduct measures phase. At the conduct measures phase, the Board found that the Appellant was in a position of authority over Ms. X. It further found that, while Ms. X might have been a willing participant in the beginning, the acts were no longer consensual. The Appellant was directed to resign from the Force and, in default of resigning within 14 days of being directed to do so, the Appellant would be dismissed.

The Appellant appealed the Board’s decision and raised the following grounds of appeal: (a) failing to provide any remedy for a clearly established Charter breach; (b) failing to apply the proper legal principles with respect to the standard of proof required to establish the allegations; (c) glossing over contradictions and problematic aspects of Ms. X’s evidence so as to find her to be a more credible witness than the Appellant on the issue of consent; and, (d) relying upon evidence that was not properly before the Board at both the merits and measures stages of the hearing.

The ERC found that whether the Appellant’s section 7 rights to life, liberty and security of the person were engaged is a separate issue from whether the delay itself was unreasonable. For a finding that there was a Charter breach, there must be serious and profound effect of a state-imposed psychological stress; that delay alone does not warrant a stay of proceedings, but where there is proof of “significant prejudice” which results from the delay, a stay may be warranted. The ERC found that the Appellant did not demonstrate that the Board erred in not affording much weight to the delay as a mitigating factor.

On the second ground of appeal, the ERC found that there is no authority that stands for the principle that allegations must be proven, “as drafted”. Further, in order to find an allegation established, not all particulars of that allegation have to be proven. The ERC found that the Board did not err when it found the allegations were established while not making a finding on whether the Appellant was in a position of authority over Ms. X and whether the sexual contact was unwanted. The Board explained that, since the Appellant admitted to having sexual contact in the workplace and having an inappropriate relationship with Ms. X, it was sufficient to establish discreditable conduct.

Regarding the Board’s assessment of Ms. X’s credibility, the ERC found that the Board’s assessment was not clearly unreasonable. The Board explained its reasons for finding Ms. X’s version of events more plausible. It was further aware of some inconsistencies in her testimony. Where a trial judge demonstrates that he or she is aware of the inconsistencies in a witnesses’ evidence, but still concludes that the witness was nonetheless credible, in the absence of a palpable and overriding error, there is no basis for interference by the appellate court. 

Lastly, the ERC found that the Appellant was precluded from raising issues regarding the prior investigation documents.  They were filed at the hearing and the Appellant had taken no position towards them nor did he request to have witnesses appear before the Board. Regarding the relationship between the city and the RCMP, the ERC found that the Board could not take official notice of a negative impact on their working relationship as no evidence was adduced at the hearing. That being said, the ERC found that when the decision is reviewed as a whole, the error does not seem so egregious that it justifies allowing the appeal in and of itself. The Board relied on multiple aggravating factors to explain its decision to order the Appellant’s dismissal.

The ERC recommended that the appeal be denied.

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

The Appellant faced two allegations under section 7.1 of the RCMP Code of Conduct for engaging in discreditable conduct in a manner that is likely to discredit the Force. The Appellant was accused of initiating unwanted sexual contact and pursuing and engaging in an inappropriate relationship of a flirtatious and sexual nature with a cell block guard, over whom he help a position of authority as cell block sergeant.

The Appellant contested both allegations. A Conduct Board found that the allegations were established and ordered the Appellant to reign within 14 days or be dismissed from the Force. The Appellant appealed.

On appeal, the Appellant argued that the Board: failed to provide any remedy for the admittedly unreasonable delay associated with the conduct hearing; erred in classifying particulars of the Allegations as aggravating factors rather than as essential elements; made findings on credibility that we were unsupported by the evidence; and, erred by relying upon evidence that was not properly before it. Accordingly, the Appellant sought reinstatement.

The appeal was referred to the RCMP External Review Committee (ERC) for review. The ERC found that the board: did not err by refusing to consider the unreasonable delay a mitigating factor; did not breach the relevant principles of procedural fairness; and, did not render a clearly unreasonable decision.

An Adjudicator found that the Board’s decision was supported by the record; is not clearly unreasonable; and, was not reached in contravention of the applicable principles of procedural fairness. The appeal was dismissed.