D-070 - Adjudication Board Decision
The Appellant was the subject of four allegations of disgraceful conduct regarding incidents in which he had allegedly broken the front door of his girlfriend's residence, entered and physically attacked her, resisted his arrest and breached the terms of his release from custody. The Appellant testified that he could not remember the events that had occurred at the residence. He pleaded that he had been functioning as an automaton as a result of an adverse drug reaction. The Respondent presented rebuttal evidence from the victim, as similar fact evidence, to rebut expert evidence concerning the Appellant's state of mind at the time of the incident. The Adjudication Board admitted the similar fact evidence. The Board rejected the Appellant's defense and found three allegations to have been established. It rejected the Appropriate Officer's request that the Appellant be dismissed, and imposed the following sanction: forfeiture of pay for 10 days, a reprimand and recommendations for a transfer and for continued counselling. The Appellant appealed the Board's finding that three allegations of misconduct had been established.
The Appellant argued that the victim's rebuttal evidence presented by the Respondent as similar fact evidence, should have been found inadmissible by the Board. The Appellant also argued that the evidence of his two expert witnesses was misapplied by the Board and was not given enough weight.
On November 30, 2000, the ERC issued its findings and recommendations. The Committee first noted that it was the Appellant who had the onus to prove that his actions were involuntary and not the Respondent to prove intent. The Committee found that the rebuttal evidence did not amount to similar fact evidence and should not have been admitted. However, the Committee found that the rebuttal evidence was not a significant factor in the Board's decision to reject the Appellant's defense. The Committee stated that determining whether the Board had adequate grounds to reject the Appellant's defense depended mostly on whether it assessed the expert evidence properly.
The Committee found that the Board properly assessed the evidence of the first expert witness. The Committee noted that this witness testified that the Appellant was suffering from Post-traumatic Stress Disorder (PTSD), but did not state that the Appellant's misconduct was attributable to his PTSD. Moreover, the Committee found no error in the Board's use of this witness' testimony in assessing the Appellant's credibility.
The Committee also found that the Board made reasonable findings with regards to the second expert witness. The Committee found that while this expert had come to the conclusion that the Appellant suffered an adverse reaction to the medication he was taking, his evidence did not establish that, the night of the incidents, the Appellant probably had no control on his actions because of the medication.
The Committee recommended that the appeal be dismissed.
On January 7, 2001, the Commissioner rendered his decision. His decision, as summarized by his office, is as follows:
The Commissioner agreed with the findings and recommendation of the External Review Committee and dismissed the member's appeal. He noted that since the member had not appealed the sanction imposed by the Adjudication Board, he was unable to consider whether an appropriate sanction had been imposed in the circumstances of the case.