D-121 - Adjudication Board Decision

The Appellant, while off duty, met the Complainant at a party at a private residence and was alleged to have "engaged in sexual relations with her without her consent, thereby committing a sexual assault upon her". The Complainant alleged that she could not have consented because the sexual activity had been drug-facilitated. The Appellant acknowledged having sexual relations with the Complainant, but insisted that it was consensual.

The Adjudication Board highlighted that this case would be decided on the credibility of witnesses. Although the Board acknowledged that there were inconsistencies in the Complainant's testimony and prior statements, it found her to be credible. Contrary to the expert witness' testimony, the Board found that the Complainant had been given an hallucinogenic-type drug which the Appellant knew of. This being the case, the Complainant was unable to consent. Therefore, the Board determined that the allegation was established and that it was proven that the sexual assault was facilitated by the surreptitious administration of a drug.

The Board ordered the Appellant to resign or be dismissed within 14 days.

The ERC reiterated that the Commissioner of the RCMP owed deference to the Board's findings of fact, such as credibility. As both the Complainant and the Appellant had inconsistencies in their testimony, it was wrong for the Board to make blanket statements and find that the Complainant was credible. Credibility had to be evaluated with the entire context and other testimonies.

The ERC found that the Board made a manifest and determinative error when it concluded that the Complainant was given a hallucinogenic-type drug, as this was not supported by the evidence. The ERC found that the Board did not have good reasons to discount the expert witness' testimony. As this was an error that coloured all of the Board's findings and conclusions, the ERC recommended that on this basis alone, the Commissioner of the RCMP allow the appeal and make the determination the Board should have made.

The ERC found that the Respondent had not proven that the Complainant did not consent to the sexual relations. It also found that if the Complainant did not consent, the evidence did not support that it was more likely than not that the Appellant knew that the Complainant was not consenting, or was reckless regarding the issue of consent, or did not take reasonable steps to ascertain her consent. It recommended to the Commissioner of the RCMP that he find that the allegation of sexual assault was not established.

The ERC recommended to the Commissioner of the RCMP that he allow the appeal and make the decision that, in his opinion, the Adjudication Board should have made. It further recommends that he find that the allegation was not established.

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

The Commissioner rendered a new decision on the Appellant member's disciplinary appeal after the Federal Court of Canada allowed an application for judicial review of the Commissioner's decision dated July 27, 2012, and returned the matter to the Commissioner to be re-determined in accordance with the Court's reasons (MacLeod v. Canada (Attorney General), 2013 FC 770, 2013-07-10).

The Commissioner first noted that disciplinary proceedings, while administrative in nature, and this one in particular, can be challenging and complex in trying to arrive at a fair outcome. This case arose from a single allegation of disgraceful conduct against a senior member of the Royal Canadian Mounted Police who in essence, was alleged to have engaged in drunken group sex next to an unconscious man at a party while the member was off duty. But for the question of whether the complainant was a willing participant or not, the behaviour was admitted by the Appellant.

The Commissioner then referred to the particulars of the allegation, which alleged that the Appellant engaged in non-consensual sexual relations with the complainant: “thereby committing a sexual assault upon her”. At the disciplinary hearing, the Board had established the offence after finding on a balance of probabilities that the complainant had been drugged, and that the Appellant did not have an honest but mistaken belief that the complainant had consented.

With respect to the Board's finding that the complainant and the party host had been drugged, the Commissioner stated that he was guided by the Federal Court's analysis at paras. 51 to 63 of its judgment, and the conclusion that his (earlier) decision to uphold the Board's finding with respect to the drugging issue was unreasonable. The Commissioner then stated: “The Court concluded that this error was crucial, since, I suspect, the Court felt that this was a central factor in the analysis of consent. Although in my decision I discounted R v. Ewanchuk, [1999] 1 SCR 330 as the test for this analysis in these administrative proceedings – the Court has provided me further direction for consideration.”

Turning to the issue of whether the Appellant had an honest but mistaken belief in the complainant's consent, the Commissioner noted that since the issue of credibility remained unexamined, beyond the findings of the Board, the subjective element of the analysis as to whether the complainant had consented was unchanged. He further noted that the Court, however, was satisfied that the “soft nod” and smile communication by the complainant to the Appellant, as described by the Appellant, combined with her exhibited consent by being on top during intercourse was sufficient evidence that the Appellant had an honest but mistaken belief as to her agreement to have sex with him.

The Commissioner then reached the following conclusions:
It seems clear then on this analysis that if the only issue before the Board was to determine whether the complainant consented to having sex with the Appellant, and with flawed analysis of what evidence there was, then the Court feels as though there is insufficient evidence to establish the allegation on a balance of probabilities. Accordingly, it also seems clear that the Board's decision and consequently my decision should be overturned.

I am left however with the solemn belief and conviction that the behaviour that has been described, if only the behaviour that the Appellant himself acknowledged and admitted before the Board, falls so far short of organizational expectations that it is disgraceful. A member of the Royal Canadian Mounted Police must maintain a standard of behaviour that accords with the unique and special place Peace Officers have in our community. That a member of this Force can engage in such drunken depravity in a manner that gives rise to a very public examination of the conduct is a threat to the integrity of this organization. That he can escape sanction for such actions because of a too narrowly defined notice of allegation is downright disappointing.

I reluctantly then, overturn the Board's finding that the allegation was established and reinstate [the Appellant].

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

In a decision dated July 27, 2012, Commissioner Paulson denied the Appellant's appeal of the Board's decision on both the merits and sanction.

On the merits, the Commissioner noted that the Respondent did not have to prove that the Appellant sexually assaulted the Complainant pursuant to the criteria for a sexual assault under the Criminal Code; what the Respondent had to establish was that by engaging in sexual relations with the Complainant without her consent, the Appellant acted in a disgraceful or disorderly manner that could bring discredit on the Force, contrary to s. 39(1) of the Code of Conduct.

The Commissioner found no reviewable error in the Board's finding that, despite the inconsistencies in her evidence, the Complainant was a credible witness. He also did not see any palpable or overriding error in the Board's conclusion that the Complainant did not consent to sexual relations with the Appellant. The evidence adduced at the hearing, including the Complainant's clear testimony to that effect, supported the Board's finding that she did not consent.

It was open to the Board to find based on the totality of the evidence, including the mild to moderate levels and effects of intoxication described in the expert witness's opinion letters, the symptoms reported by the party host and the Complainant, and the expert's description of the effects of hallucinogenic-type drugs, that nothing else than the administration of a drug could satisfactorily account for what happened to the Complainant and the party host.

The Commissioner found it was reasonable for the Board to conclude that the Appellant knew the party host and the Complainant had been drugged. This conclusion was supported by the Appellant's testimony that he was unconcerned about the party host's presence in the bed during the sexual activity and the possibility of him waking up. The Commissioner also did not believe the explanation offered by the Appellant for why he went into the party host's bedroom. Further, he noted that the Complainant and the party host both experienced symptoms that were extreme after having mixed drinks from the same source, which corroborated the Complainant's evidence.

The Commissioner stated that even if he were to accept that the Appellant was unaware that the Complainant had been drugged, he would find his behaviour when he approached the Complainant in the bedroom insufficient in terms of obtaining or ascertaining her consent.

The Commissioner found the evidence showed, on a balance of probabilities, that the Appellant had sexual relations with the Complainant without her consent, thereby sexually assaulting her, as alleged in the particulars of the allegation of contravention of the Code of Conduct. He agreed with the Board's decision that the allegation of misconduct was established.

On the sanction, the Commissioner found no palpable or overriding error in the Board's consideration of the aggravating factors and he also accepted the mitigating factors considered by the Board.

The Commissioner agreed with the ERC that the Board did not err in placing little weight on the Appellant's alcohol dependance and the treatment he underwent for that condition, given the absence of conclusive evidence linking the Appellant's alcoholism to the sexual misconduct. He also agreed with the ERC that since the Appellant did not ask the Board to consider a more lenient sanction based on the Force's core value of “compassion”, the Board did not err by not addressing this in its reasons for the sanction decision.

The Commissioner confirmed the sanction imposed by the Board and ordered the Appellant to resign from the RCMP within 14 days of service of his decision, in default of which he would be dismissed.