D-069 - Adjudication Board Decision

The Appellant was the subject of one allegation of disgraceful conduct arising from his use of force on a person in custody.

The member and another, more junior, female member responded to a call about damage to property. On the way, they arrested a man for being intoxicated in a public place. The man was handcuffed and placed in the back of the police car. Upon arrival at the location of the damage, they realized that the call arose from a domestic assault incident and that the man in their custody was the suspect in this assault. Due to limitations relating to search of a prisoner by a RCMP member of the opposite sex, the suspect had to be searched by the senior member before being driven to the station. While attempting to carry out the search, the member hit the prisoner in the stomach two times, jabbed him in his left eye and jerked his head back and forth, while shouting profanities and words to the effect that the suspect "should not do that to women". The member then released pepper spray in the prisoner's face. As a result of this incident the member was charged with assault.

The member admitted the allegation before the Adjudication Board. The Appropriate Officer recommended a sanction of forfeiture of ten days pay, a reprimand and a recommendation for counselling. The member argued that forfeiture of ten days pay was excessive. The Adjudication Board informed the parties that it would consider imposing a sanction higher than forfeiture of ten days pay and would not be bound by the Appropriate Officer's recommendation. The member submitted that the possibility of a sanction of dismissal required different preparation than that which had been done and suggested that the proceeding be adjourned to allow adequate preparation. The Board allowed an adjournment of 90 minutes and the member then completed his presentation of evidence on the sanction. The Board found that the Appellant had acted with a degree of premeditation and with the intent to punish the prisoner, and ordered the Appellant to resign.

The member appealed the sanction. In his appeal, the member argued that the quality of his legal representation fell below the acceptable standard, that the Adjudication Board had breached natural justice by not clearly advising him that it was seriously contemplating dismissal as a sanction and by not adjourning the hearing to allow him to adequately prepare for that possibility. He also argued that the sanction was too severe, given previous similar cases, none of which resulted in dismissal.

The Acting Chair of the Committee determined that the record did not contain sufficient evidence as to whether the Appellant's actions were premeditated and intended as punishment. For this reason, the Acting Chair conducted a hearing into the matter. The Committee's hearing received additional evidence relating to the Appellant's behaviour while attempting to search the prisoner and the circumstances that might have caused the Appellant to resort to the particular force that he employed.

On October 12, 2000, the ERC issued its findings and recommendations. The Committee found that the Adjudication Board's decision to adjourn the proceeding for only 90 minutes was unfair because it did not allow the Appellant to adequately prepare in regard to the appropriate sanction. On the basis of all of the evidence received at the two hearings, the Committee also found that the evidence did not support a conclusion that the Appellant acted with premeditation and intent to punish the prisoner. In the Committee's view, the Appellant's use of force was a spontaneous outburst that arose primarily from frustration in attempting to safely carry out a search of a prisoner who, although not clearly unco-operative, was presenting some difficulties for the Appellant. The Committee also found that the sanction imposed did not respect the principle of parity of sanction.

The Committee recommended that the Commissioner rescind the sanction of ordering the Appellant to resign and impose a sanction of forfeiture of seven days pay and a reprimand.

On November 3, 2000, the Commissioner rendered his decision. His decision, as summarized by his office, is as follows:

In this case, the parties jointly submitted an agreement on facts to the board and the allegation of disgraceful conduct was established. In the sanction phase of the hearing the AOR advised that he was seeking a forfeiture of ten days pay, a reprimand and counselling - this was the maximum sanction which the member had anticipated and which the MR had prepared to address in her submissions to the board.

After hearing some testimony on sanction, the board signalled to the parties that it intended to consider the increased sanction of dismissal. The MR advised the board that she had not prepared to address such a sanction. At this point the board should have adjourned for a period of time sufficient to satisfy itself that the parties could properly prepare to address the increased sanction. Instead the board allowed the MR to adjourn for a short period (ninety minutes) and then continue. This was clearly insufficient in light of her previous comments, and the member was ultimately dismissed.

The Commissioner agreed fully with the analysis of the External Review Committee (ERC) when it stated that the responsibility to ensure that the appellant was treated fairly rested first and foremost with the Board and that the failure to do so in this case constituted a breach of the natural justice duty of fairness upon the board. The two key components of this duty in such situations are that the board must clearly signal to the parties that it is contemplating a higher sanction; and, the board must adjourn the hearing for a period of time sufficient to satisfy itself (the board) that the parties will be able to properly prepare to address the increased sanction.

The Commissioner then examined the additional material which had been submitted before the ERC hearing which had been convened as part of the appeal, and he fully agreed with the ERC that the conduct of the member was not premeditated and that the appropriate sanction should be a forfeiture of seven days pay and a reprimand.