D-068 - Adjudication Board Decision

The Appellant disputed an allegation that he had sexually assaulted a member of the public who had visited him at home. The Appellant admitted that he had sex with the individual in question but maintained that the relationship was entirely consensual. That individual testified that she had been frightened by the Appellant because he was a very large man and he was intoxicated. The Adjudication Board found the allegation to have been established. It ordered the Appellant to resign from the Force within fourteen days. The appeal is against both the finding that the allegation of misconduct has been established and against the sanction.

On August 9, 2000, the ERC issued its findings and recommendations. The Committee found that there are major aspects of the evidence which the Board completely failed to address, some of its conclusions do not appear to be supported by the evidence and there are comments in the decision which indicate that the Board misunderstood what some of the witnesses stated. The Board drew inappropriate inferences about the evidence provided by a taxi driver who reported having seen the Appellant and his alleged victim together on the evening that she went to the Appellant's home. It misused the evidence of a forensic psychologist by concluding that his evidence supported the alleged victim's version of events. The Board also misinterpreted the evidence provided by the alleged victim and failed to address some critical weaknesses in her evidence, leaving the impression that it had not fully considered the evidence and arguments of the parties before reaching its decision.

The Committee recommended that the appeal be allowed against the Board's finding that one allegation of misconduct was established and that the Commissioner finds that the allegation was not established.

On December 22, 2000, the Commissioner rendered his decision. His decision, as summarized by his office, is as follows:

In his decision on the allegation of disgraceful conduct, the Commissioner accepted the Committee's findings that there were "numerous and significant contradictions in the testimony of the victim" revealed through the testimony of the taxi driver and of the detachment commander. He also accepted the Committee's comments regarding the Board's interpretation of the testimony of the psychiatrist and the family doctor.

The Commissioner considered the Committee's position regarding the victim's credibility and the tendency of her conduct before, after and during her encounter with the appellant to indicate that she had developed a personal interest in him. Considering the standard of proof to be met, the Commissioner was not prepared to accept the testimony of the victim where it differed from that of the appellant and was not otherwise corroborated. He found that the victim may have consented to sex with the appellant.

This finding was not, however, determinative of the matter, given the pre-existing relationship of trust between the appellant and the victim which resulted from her earlier disclosure to him that she had been sexually assaulted. Although the Committee found that the contact between the appellant and the victim had been insufficient to render his relationship with her improper, the Commissioner disagreed on this issue. The appellant's relationship with the victim went beyond the mere knowledge that she contemplated filing a report about an alleged assault. The record shows that she made an intimate, personal disclosure to the appellant about a prior sexual assault and that she had decided to discuss this matter with him because she felt that she could trust him. At the time of the incident, she was still trying to decide what course of action to follow.

The appellant had an obligation to respect this relationship of trust and to ensure that he did nothing to take advantage of it, yet he engaged in sexual relations while off duty with a person with whom he was in a position of trust as a result of his duties. The Commissioner found the allegation of disgraceful conduct to be established and the appeal against the finding was denied.

The Commissioner commented that he was satisfied that the hearing was conducted in a fair manner and that the oral reasons of the adjudication board must be sufficient to allow the parties to be able to properly prepare for the sanction portion of the hearing.

In his decision on sanction, the Commissioner indicated that the appellant's full work history, including prior discipline should be considered. The appellant's satisfactory work record, the expression of remorse for his actions and peer and community support were present. The fact that the appellant had been subject to serious prior discipline became a central issue for the Commissioner who considered whether the prior discipline was sufficiently convincing that dismissal was appropriate in this case.

The Commissioner found that members of the RCMP must conduct themselves in accordance with organizational values and must be accountable for their conduct. In this case, the appellant had an obligation to respect the position of trust that existed between himself and the victim, and he failed to do so.

The Commissioner also considered the role played by alcohol in this matter and the appellant's problems with alcohol and efforts to deal with the issue.

Finally, the Commissioner adopted the test for dismissal as outlined in Ennis v. Canadian Imperial Bank of Commerce, that "[t]he employee's conduct and the character it reveals, [is] such as to undermine or seriously impair the essential trust and confidence the employer is entitled to place in the circumstances of [this] particular relationship". Given all the circumstances of this case, the Commissioner chose dismissal as the appropriate remedy because the appellant, had "demonstrated through his actions that he is beyond rehabilitation to be able to maintain the high standards of conduct required of members of the RCMP".

The appellant was directed to resign forthwith and in default of resigning within fourteen days of receiving the written decision, he was to be dismissed from the RCMP.