C-165 - Conduct Appeal

The Respondent helped detain Ms. X for a possible hospitalization after both her doctor and her parents reported that she was having a mental health crisis and needed urgent care. A member handcuffed Ms. X. The Respondent then began walking her to a police car. She shouted, swore, and struggled to an extent. At one point, both individuals lost their balance and fell on to a lawn. But the Respondent was a lot larger than Ms. X, and basically had her contained. After they got back up, Ms. X lightly bumped the Respondent. He then put his foot in front of her, grabbed her head, and pushed her down. Unable to brace herself due to being handcuffed, she fell face-first on to a paved driveway and sustained facial injuries. She was taken to the hospital, where she received treatment. The Respondent reported these events in ways that were not fully accurate.

The Crown charged the Respondent with assault. He pled guilty to, and was convicted of that offence. The Court considered a jail sentence but did not order one given the uncharacteristic nature of the Respondent’s behaviour plus his plea, remorse, integrity, and recognition of fault.

The Conduct Board (Board) issued a Decision. It concluded that the Respondent misused force, contrary to section 5.1 of the Code of Conduct, and carelessly reported what occurred, contrary to section 8.1 of the Code of Conduct. Although the Board said dismissal was a viable option, it ordered an 18-day financial forfeiture for the misuse of force, and reprimands for each careless report. According to the Board, the mitigating factors eclipsed the aggravating factors and there were no RCMP or police precedents for dismissal. Citing the principle of consistency, the Board added that the official who initiated the case against the Respondent recently decided the case of KM, where a member who had similarly misused force received an 18-day financial forfeiture.

The Conduct Authority (Appellant) filed an appeal. She contested one of the Board’s findings on the alleged misconduct as being too lenient. She then asserted that the Board selected conduct measures in ways which were procedurally unfair, legally wrong, and clearly unreasonable. She asked the Final Adjudicator to allow the appeal, and to dismiss the Respondent from the RCMP.

The ERC had no concerns with the Board’s findings on the alleged misconduct.

But the ERC found that the conduct measure the Board imposed for the Respondent’s misuse of force against Ms. X was clearly unreasonable. An 18-day financial forfeiture fell directly within the normal range for misuse of force offences set forth in the Conduct Measures Guide. Yet, the Board’s findings of elevated severity, call for broad deterrence, and rejection of the presumption of imposing milder conduct measures all pointed to a measure within the aggravated range. The Board’s overall analysis supported its election to retain the Respondent, but did not support its election to simply adopt the conduct measure imposed in KM. The Board further misidentified an aggravating factor as a neutral factor, thereby giving the factor improper weight.

The ERC found that the Final Adjudicator should allow the appeal of the conduct measures, and impose other conduct measures, in accordance with paragraph 45.16(3)(b) of the RCMP Act.

In the ERC’s view, the suitable range of conduct measures for the Respondent’s misuse of force was the aggravated range found in the Conduct Measures Guide. This range covered forfeitures of 20 to 35 days, up to a dismissal. The Respondent’s misuse of force included key markers for the aggravated range. Specifically, he engaged in a largely unprovoked, excessive assault of a vulnerable, restrained, and much smaller victim who suffered injuries that required hospital care.

The ERC viewed the misconduct as serious enough to support a dismissal. Although there were no cases before the Board where a police officer was dismissed for misusing force, the Conduct Measures Guide identified dismissal as an acceptable result, and the Appellant presented cases in which correctional officers were dismissed for misusing force against prisoners. Perhaps most notably, and as the Board conceded, after the death of George Floyd in 2020, the public interest shifted significantly towards increased accountability for police officers who use excessive force.

Despite this, the ERC believed a conduct measure short of dismissal best reflected the severity of the Respondent’s misuse of force, and the nexus of his wrongdoing and the requirements of the policing profession. It therefore favoured a considerable financial forfeiture, for two reasons.

First, the mitigating factors were compelling. The Respondent showed the Court, the Board, and now the ERC that he had taken responsibility for his behaviour, that he was remorseful, and that he was unlikely to reoffend. He did this by pleading guilty to the charge of assault, admitting to what he did, voicing disgust with his actions, expressing a genuine intent to apologize to Ms. X, and otherwise demonstrating contrition. In his nearly two decades as a member, he had a very good record of service with no prior discipline. His misuse of force was a momentary lapse that several colleagues described as being wholly at odds with his exemplary character and integrity.

Second, while previous conduct decisions are not binding, both the RCMP Act and the Conduct Measures Guide require that subject members be treated consistently. In KM, the same official in the same Division chose to retain a Corporal who engaged in the same degree of wrongdoing as the Respondent, within the same general period of time. If the principle of consistency is to mean anything, then the ERC cannot recommend a dismissal in the circumstances of this case.

The ERC closed by leaving the Respondent with two strong messages. First, it believed he had learned from this experience, and established a restored fitness for duty. Second, his misuse of force was unlawful and deeply disturbing; there will be little patience for any further misconduct.

The ERC recommends dismissing the appeal on the allegations, and confirming that the allegations are established. It further recommends allowing the appeal of the conduct measures and ordering in their place a forfeiture of 30-days for the misuse of force, and reprimands for each instance of careless reporting.