D-089 - Adjudication Board Decision

An RCMP member was alleged to have told a motorist that had been driving under the influence of alcohol that she would have to take him out to dinner because he had been lenient in only suspending her licence for 24 hours. The member was also alleged to have later called the motorist and attempted to schedule a dinner date with her. The member denied both allegations, claiming that it was the motorist who had offered to take him out to dinner were he to agree not to suspend her licence and not ticket her for making a left turn on a red light. The motorist's mother, who went out to meet her daughter at the traffic stop and retrieve the vehicle, testified that the member told her that the motorist would have to take him out to dinner because he had been lenient with her. The member's version of the same conversation was that he merely reported what the motorist had stated and she then laughed and confirmed that this was what she had offered. The member acknowledged that he later phoned the motorist but insisted that he only wanted to provide her with the detachment address so that she would know how to retrieve her licence. Several dates were mentioned by the member as to when the motorist would be able to do this and she kept offering explanations as to why she was busy on those dates. The motorist's mother testified that she was able to hear what her daughter was saying to the member and was left with the distinct impression that her daughter was attempting to dodge the member's efforts to schedule a dinner date. Later that night, both the motorist and her mother spoke to the duty officer at the member's detachment and reported their allegations as to what had happened at the traffic stop and in the subsequent telephone discussion. The duty officer then called the member, who denied the allegations but failed to explain that it had been the motorist who had initiated discussions about a dinner date.

The RCMP Adjudication Board (the "Board") that heard the matter concluded that neither allegation had been established. It stated that there was at least a reasonable doubt as to the reliability of the evidence in support of the allegations and, given that it was aware that the Commanding Officer intended to seek the member's dismissal from the Force it concluded that the Commanding Officer had not met the evidentiary burden. The motorist's evidence was not considered credible because she had contradicted herself on several occasions and it was established that she had erred in her description of certain facts. Furthermore, she was under the influence of alcohol at the time of the traffic stop and this could have affected her memory and judgment. Her mother's evidence was found to be unreliable because she was considered to have very little independent knowledge of the suggestion of a dinner date and her description of the telephone conversation was deemed equally capable of supporting either the member's version of the fact or that of the motorist. The member's evidence was found to be entirely credible. That assessment was based on the member's demeanour at the hearing, his willingness to cooperate with the investigation into the allegations and the fact that he had been permitted by the Commanding Officer to continue testifying in court proceedings. The Commanding Officer appealed the Board's decision.

The Board's comments regarding the standard of proof were confusing and somewhat inaccurate. It is the gravity of the misconduct rather than the sanction sought which can impact on the standard of proof but the allegations still need only be proven on a balance of probabilities. As it turns out, that was the standard applied by the Board because its finding on the allegations were based on an assessment of the evidence that concluded that the member's version of events was entirely credible whereas the conflicting version from the motorist and her mother was unreliable. Nonetheless, the rationale provided in support of the credibility determinations was flawed in many respects, which undermined the findings on the allegations. The Board erred in basing its assessment of the motorist's evidence on the fact that she had been under the influence of alcohol and it read too much into the contradictions and factual errors in her evidence. The Board also misconstrued the evidence from the motorist's mother. Her knowledge of the suggestion of a dinner date was more significant than the Board realized given that it was the member himself who told her about it. As well, contrary to what the Board stated, her description of the telephone conversation was not capable of supporting the member's version of events. Insofar as concerns the assessment of the member's credibility, the Board placed far too much emphasis on his demeanour at the hearing and not nearly enough emphasis on aspects of the evidence that called into question the credibility of his version of events, such as his failure to tell the duty officer about the motorist's dinner invitation or to record it in his notes and the fact that his statement during the disciplinary investigation contradicted his evidence before the Board, particularly with regard to what the motorist told him during the telephone conversation. It is particularly disturbing that the Board based its assessment of the member's credibility on the fact that he had been permitted to continue testifying in court proceedings. This was a completely irrelevant consideration and the Board drew inappropriate inferences from that fact about the Commanding Officer's level of confidence in the member. A new hearing should therefore be ordered before another adjudication board.

The appeal should be allowed.

The Commissioner rendered his decision in this matter, as summarized by his office:

On July 12, 2005, the Commissioner confirmed the decision of the Adjudication Board and dismissed the appeal.

With respect to the remedy, the Commissioner noted that what the Appellant was seeking was not available under the RCMP Act. As for the issue of the proper standard of proof, the Commissioner agreed with the ERC that the Board's findings on the allegations were assessed on the proper standard of proof, the balance of probabilities. Consequently, this ground of appeal failed.

The Commissioner also addressed the issue of the level of deference owed to the Board on its findings of credibility. Based on the recent findings of the Federal Court and the factual nature of the issue of credibility, the Commissioner ruled that the standard of patent unreasonableness should apply in the present case. Therefore, he was not prepared to overturn the Board's decision. The Board was owed considerable deference. The Commissioner believed that a hearing before a board of experienced police officers, one of whom is legally trained, provided the proper vehicle to ensure that the organization's high standard of conduct and professionalism were upheld.