D-064 - Adjudication Board Decision
The Appellant was the subject of one allegation of disgraceful conduct related to his alleged use of excessive force when he had been arresting an individual. He had been acquitted of a criminal charge of assault arising from the incident. At the hearing, the Appellant brought a preliminary motion seeking a stay of proceedings on the basis that conducting the hearing would constitute an abuse of process. He argued that he would be denied his right to make a full answer and defence, and the right to cross-examine material witnesses, because the alleged victim of the excessive force and his common-law spouse, who had witnessed the altercation, had left the province and would not be at the hearing. The Respondent submitted that his case could be made against the Appellant without the alleged victim, that the witnesses would be available for cross-examination, and that the Appellant's submission of prejudice was premature. He also argued that if the Adjudication Board determined that evidence from the alleged victim was necessary, it could admit the transcript of the evidence he had given at the Appellant's criminal trial, on the basis of the principled approach to hearsay. At the trial, the alleged victim had been sworn and had been cross-examined by the Appellant's counsel.
The Board agreed and denied the motion. After the motion was denied, the Appellant admitted the conduct and received a sanction of six days' forfeiture of pay and a recommendation that he take courses or undergo counseling on self-evaluation. He appealed the decision made on the preliminary motion.
On August 19, 1999, the ERC issued its findings and recommendations. The Committee found that the Board had properly determined that the Appellant was not entitled to a stay of proceedings. He did not put forward a clear case that he would be unable to mount a full and proper defence because of the unavailability of the alleged victim and his spouse. Furthermore, his right to cross-examine witnesses was not violated. The right to cross-examine does not extend beyond those witnesses who actually provide evidence. Therefore, if the alleged victim and his spouse were not going to be part of the case against the Appellant, there was no right to cross-examine them. The witnesses who were going to provide evidence would be available for cross-examination.
The Committee found that the Board had not erred in determining that the transcript evidence might be admitted. Where the Board did not know the contents of the transcript evidence, it could not make a blanket ruling on the admissibility of the transcript in its entirety. However, in the context of the preliminary motion, where the central issue to be determined was whether the presence of the alleged victim was necessary to the fairness of the hearing, the Board was entitled to consider the possibility of admitting the transcript evidence. It did not err in its application of the principled approach to hearsay in determining that the evidence might be admitted, subject to the Board's statement that it would evaluate individual parts of the transcript before admitting them.
The Committee recommended that the Commissioner deny the appeal.
On November 3, 1999, the Commissioner rendered his decision. His decision, as summarized by his office, is as follows:
The Commissioner agreed with the Committee's Findings and Recommendations and he dismissed the appeal. He agreed that neither the Appellant's rights to present evidence, to cross-examine or to make representations was involved or affected by the Board's decision on the motion or by the Respondent's decision not to make [the victim] and [the victim's common-law partner] part of his case. The Commissioner agreed that since the witnesses were not called by the Respondent, the Appellant had no right to cross-examine them. He disagreed with the argument that the Appellant was basically forced to testify as a result of [the victim]'s absence. The Commissioner supported the Board's decision to allow the hearing to continue and agreed that this case was not the clearest of case where the Appellant had established an abuse of process. Regarding the admission of the transcript of evidence, the Commissioner concurred that the requirements of "necessity" and "reliability" were correctly applied by the Board and that the transcript of evidence was admissible. He indicated that adjudication boards are subject to relaxed rules of evidence and could even accept evidence that would be considered inadmissible in court.