D-080 - Adjudication Board Decision

It was alleged that the Appellant had pointed his service pistol at a colleague (the "Complainant") in an enclosed area of a detachment building. Other allegations relate to the Appellant's use of the RCMP e-mail system, a cellular telephone issued by the Force and an RCMP vehicle in order to pursue an intimate relationship with an employee of the detachment as well as to his interrupting patrol duties on five occasions in order to meet with that employee and have sexual relations with her. The Appellant admitted all of the allegations. At the sanction hearing, the main issue in dispute was whether the reason that the Appellant had pointed his service pistol at the Complainant had anything to do with the fact that the Complainant had told another colleague that he suspected that the Appellant was having an extramarital affair with one of the employees. The Appellant denied that this was the case although he conceded that the Complainant's comment had been of concern to him and that he had spoken to him about it earlier in the day. Instead, the Appellant contended that, as he approached the east entrance to the detachment at the end of his shift, with his service pistol in his hand and already unloaded, he was startled by a loud noise caused by the door opening suddenly. He instinctively pointed his pistol at the door before realizing that the person who was entering the building was the Complainant. The Appellant insisted that he lowered his pistol immediately once the Complainant came into view and that his pistol had not been pointed at him for more than one second. However, the Complainant testified that the Appellant was standing behind the door when he opened it and that it was only after he was in full view of him that he removed his loaded pistol from his holster, pointed it at his nose from a distance of eight to ten inches and continued to do so for up to five seconds. What the Appellant and the Complainant did agree on was that they did not exchange any words on that occasion. The Complainant did not speak to anyone about the incident for four days before telling his detachment commander about it. His explanation for his silence was that he had been trying to understand why the incident happened. In the interval, the Appellant spoke to several of his colleagues about the incident, one of whom testified that the Appellant had made the comment "you should have seen the look on his face" in describing the Complainant's reaction to the incident. At the detachment commander's invitation, the Appellant and Complainant met at his home one week after the incident in an effort to resolve the Complainant's concerns over that incident. The Complainant testified that the meeting was very frustrating because the Appellant refused to apologize or acknowledge any wrongdoing. That evidence was disputed by both the Appellant and the detachment commander. The Complainant insisted that he repeatedly asked the detachment commander in the days that followed to initiate an investigation but he would not listen to him, whereas the detachment commander maintained that the Complainant waited several weeks before telling him that he was not satisfied with the outcome of the meeting. He asked him to provide a written statement about the incident so that he could initiate an investigation but the Complainant came back to see him later that day to tell him that he no longer wanted an investigation. Three months later, the Complainant was transferred to an isolated post in the north of the province and it would be another three months after his transfer before the Complainant prepared a written statement in which he complained about the incident and the manner in which it had been handled by the detachment commander. As part of the Force's investigation of the complaint, the Appellant was interviewed and he told the investigator that the incident had been intended as a joke. However, in his testimony before the Board, the Appellant acknowledged that this explanation had been false but that he had believed at the time that it would ensure that there were no repercussions to the incident.

The Board rejected the Appellant's explanation for the incident, concluding that he was "willing to say whatever [was] necessary to save his employment prospects with the RCMP". It found that the incident was in response to the Complainant's comments about the Appellant having an affair with one of the employees. It also found that the Complainant's evidence was for the most part credible and indicated that shock or fear accounted for the Complainant waiting four days before telling the detachment commander about the incident. The Board ordered the Appellant to resign from the Force because he was unwilling to accept responsibility for his actions, which was an indication that he could not be rehabilitated.

The Appellant argued that the Board failed to consider an amendment that it had approved to the Notice of Hearing which clarified the fact that the Appellant had only interrupted his patrol and not left his patrol area in order to have sexual relations with an employee. Also, the Board's assessment of the Complainant's credibility failed to address the contradictions with the evidence from other witnesses. The sanction imposed by the Board is regarded by the Appellant as excessive in comparison to decisions on similar misconduct.

It is clear from the Board's written decision that the reasons in support of the findings on the allegations take into account the amendments that were approved to the Notice of Hearing. However, the decision on sanction was based on a flawed assessment of the Complainant's credibility. The Board did not have before it clear and convincing evidence to support the Complainant's description of the incident and therefore could not conclude that the incident raised any safety concerns. While the Board may have been justified in rejecting the Appellant's contention as to what caused him to point his service pistol at the Complainant, it is more likely that his gesture was an impulsive and fleeting gesture than a deliberate and calculated attempt to threaten or intimidate the Complainant. The finding that the Complainant experienced shock or fear is not consistent with his evidence. Instead, his delayed response to the incident is an indication that it was far less dramatic than he contended. The Appellant's unwillingness to acknowledge that his gesture was borne out of anger at the Complainant was not a sufficient reason for the Board to conclude that there is a risk that he could resort to violence in the future in times of stress or personal difficulties. The incident itself does not appear to reflect a potential for violence and the Appellant's lack of prior discipline also needs to be considered.

The appeal of the Board's finding on the allegations of misconduct should be dismissed. The appeal of the Board's decision on sanction should be allowed. The Appellant's pay should be forfeited for 10 days and he should also be reprimanded.

The Commissioner denied the appeal regarding the sanction. He did not agree with the Committee's recommendation to impose forfeiture of 10 days' pay. He indicated that he was not prepared to reverse the decision of the Adjudication Board, since the key issues turned on questions of credibility and, in the Commissioner's opinion, the members of the Board were best placed to assess the credibility of witnesses. He ordered the appellant to resign from the Force within 14 days.