D-083 - Adjudication Board Decision

Four allegations of misconduct were presented against the Appellant, all relating to incidents where it was suggested that he had abused his authority when interacting with the public. An RCMP adjudication board (the "Board") denied a motion from the Appellant's counsel to hold separate hearings for each allegation. The first allegation concerned his seizing a baton because he mistakenly believed it to be a prohibited weapon. The Appellant acknowledged that he had conducted himself in an unprofessional manner towards the individual from whom he seized the baton and towards several RCMP members. The second allegation was that he had mistreated a motorist whom he had arrested for failing to heed his instruction to stop his vehicle. The motorist claimed that the Appellant made demeaning remarks to him and that he choked him. While the Board concluded that the motorist's evidence was not credible on these points, it still found the Appellant's conduct to be disgraceful because he damaged the motorist's vehicle by hitting it with a flashlight and used excessive force in making the arrest, causing the motorist to suffer a shoulder injury. The third allegation was that the Appellant made an unwarranted arrest of an individual who came up to him in bar and uttered a derogatory remark. The Appellant claimed that the individual had pushed him forcefully but the Board rejected that contention, in part because an RCMP member who was standing nearby indicated that he did not see the Appellant being pushed. The fourth allegation was that the Appellant punched a prisoner in the face while he was handcuffed and seated in the back seat of a police vehicle. That allegation was denied by the Appellant but he acknowledged that he had punched the prisoner in the face, prior to placing him in the vehicle, as a means of gaining control over him after the prisoner kicked him twice. The Board accepted the Appellant's version of events but found that the allegation had been established anyway because it considered that the prisoner's actions could not have represented a threat to the safety of the Appellant since he was handcuffed at the time that the Appellant punched him.

At the sanction hearing, evidence was presented that the Appellant had previously been disciplined on four occasions, including twice for confrontational behaviour towards the public. Expert evidence from a psychologist and a psychiatrist attributed the Appellant's misconduct to alcoholism and to the strain of a difficult family situation that was unfolding at the same time. In view of the fact that the family situation had since resolved itself and the Appellant had stopped drinking, the experts expressed confidence that further incidents of misconduct were unlikely to occur should the Appellant be permitted to remain with the Force. However, the Board concluded that dismissal was an appropriate sanction for the third allegation and it also imposed an order to resign in respect of the fourth allegation. The factors which contributed to that decision included the Appellant's disciplinary record, his failure to agree to psychotherapy when it was first proposed to him shortly before the four incidents occurred and his failure to undergo an in-house treatment program for alcoholism even though it had been recommended by his psychiatrist.

The grounds of appeal were that the Board should have granted the motion to sever the allegations, the proceedings were unfair to the Appellant because his detachment commander had sat on other adjudication board with the same officers who constituted the Board in this instance, the Board had based its findings on the second and fourth allegations on facts that were not part of the allegations as particularised in the Notice of Hearing and the credibility findings that formed based of the Board's decision on the third allegation were patently unreasonable. Regarding the decision on sanction, the grounds of appeal were that the sanction for the third and fourth allegations was discriminatory, since other members who have engaged in similar misconduct have been permitted to remain with the Force, and that the Board did not give adequate consideration to the family problems experienced by the Appellant and the extent to which they contributed to his misconduct.

It was appropriate for the Board to consider the four allegations at the same hearing. There is no evidence that the Board was influenced by irrelevant considerations in determining whether each allegation was established. The composition of the Board does not give rise to a reasonable apprehension of bias since there has only been a single occasion where the Appellant's detachment commander has sat alongside any of the Board members in a contested disciplinary proceeding and no evidence that he took advantage of that opportunity to share information about the Appellant with the Board members. However, the Board's findings on the second and fourth allegations should be set aside. The Board exceeded its jurisdiction by relying on facts that were neither described in the particulars to the allegations as they appeared in the Notice of Hearing, nor relied upon by the Respondent to support the argument that the Appellant's conduct was disgraceful. As for the third allegation, the Board's conclusion that the Appellant's evidence was not credible is not patently unreasonable. However, the sanction imposed for that allegation is too harsh, given that the Board's findings on only two of the four allegations can be supported. The Board attributed too much importance to the Appellant's disciplinary record, since the only incident for which formal disciplinary action was initiated had taken place more than a decade earlier when the Appellant was still undergoing recruit training. The Board also overemphasized failings on the Appellant's part that it regarded as an indication that he could not be rehabilitated and disregarded the positive prognosis from the two expert witnesses.

The appeal of the Board's finding on the allegations of misconduct should be allowed in part. The appeal of the Board's decision on sanction should also be allowed in part.

The Commissioner agreed with the Committee's findings and recommendations on some issues, but nonetheless dismissed the appeal on all allegations. As well, the Commissioner dismissed the appeal regarding sanction.