C-111 – Conduct Board Decision

The Appellant was charged with one allegation under section 7.1 of the Code of Conduct, for unwanted contact of a sexual nature in respect of a 16 year old, Ms. A. It was alleged that  when Ms. A tried to wake him up by grabbing his hand, the Appellant pulled Ms. A on the couch where he was sleeping and committed a sexual assault on her. The Appellant was criminally charged of sexual assault; however the criminal trial judge found that he had a reasonable doubt that the touching was for a sexual purpose and he acquitted the Appellant. Following a contested hearing, the Conduct Board (Board) found the allegation to be established and ordered the Appellant be dismissed. 

The Appellant appealed the findings of the Board on the allegation and the conduct measure imposed. He argues that the Board did not properly apply the balance of probabilities standard because it reached a different outcome than his criminal trial. He further argues that the Board was biased against him by presuming culpability and ignoring or dismissing evidence in his favour. Regarding the conduct measure, the Appellant submits that the conduct measure was ‘far above and beyond’ what was warranted. 

The ERC first found that the Board was not bound by the criminal trial acquittal and could make its own findings based on the balance of probabilities. Statutory and conduct proceedings are separate processes that have different standards of proof. Although relitigation would be impermissible, this was not the case in this appeal since the Board had not made factual findings irreconcilable with the criminal trial decision. The ERC further found that the Appellant had not met his burden of demonstrating that the Board showed a reasonable apprehension of bias towards him by asking both parties for their views on the criminal trial decision and giving less weight to certain evidence. Lastly, the ERC found that the Board’s decision on conduct measures was not clearly unreasonable. The Board adopted the approach advanced in the Ceyssens/Childs Report, distinguished cases filed by the Member Representative and assessed the mitigating and aggravating factors. 

The ERC recommends that the appeal be dismissed.