D-125 - Adjudication Board Decision

The Appellant became intoxicated during an off-duty party and assaulted a female member, C, including touching her breast. The Appellant entered a guilty plea to a criminal charge of assault arising from the incident and received a conditional discharge at a criminal sentencing hearing. At a subsequent hearing before an adjudication board (Board), the Appellant admitted to allegations of Disgraceful Conduct and Reporting for Duty Under the Influence and acknowledged that his actions towards C amounted to a sexual assault. The Board then held a sanction hearing, where witnesses, including the Appellant and one of his alcohol addiction counsellors, qualified by the Board as an expert, testified. The Board also considered a Victim Impact Statement (VIS) prepared by C, as well as evidence of two prior non-disciplinary incidents in which the Appellant had acted inappropriately with female members. After considering the evidence and the parties’ submissions, the Board directed the Appellant to resign. The Board accepted the Appellant’s apology and acknowledged that he had shown remorse. The Board observed that the Appellant, a good performer, had nevertheless been involved in two other incidents involving inappropriate behaviour with female members. The Board recognized the Appellant’s efforts to address his alcoholism but concluded that the evidence overall showed a lack of dedication to rehabilitation. The Board viewed the Appellant’s potential for recurrence as high and found that the significant breach of trust caused by the Appellant’s actions outweighed any rehabilitative potential.

On appeal, the Appellant argued that the Board had: (i) provided insufficient reasons to explain its findings that the Appellant’s potential for recurrence was high and that some of the Appellant’s efforts were for purposes other than rehabilitation; (ii) improperly re-litigated a finding made by the criminal sentencing judge that there had been no breach of trust and erred in characterizing the Appellant’s conduct as such; (iii) erred in finding that the incident caused C to experience ongoing psychological trauma and misapprehended the sequence of events involved in the incident; (iv) improperly minimized the Appellant’s rehabilitation efforts and made errors regarding certain aspects of it; (v) erred in the manner in which it considered the two prior incidents, and; (vi) erred in assessing parity of sanction.

The ERC addressed each of the grounds raised by the Appellant as follows: (i) The Board's findings, both with respect to the Appellant's potential for recurrence and the purpose of certain of his efforts, were supported by adequate reasons. Read as a whole, the decision showed a discernable logic which allowed the findings to be understood and both of the findings were supported by the evidence; (ii) the Board did not err in finding that the Appellant's conduct amounted to a breach of trust, even though a contrary finding had been made at the Appellant's criminal sentencing hearing. In the present case, the Board's finding was made in respect of an admission of sexual assault rather than assault. Also, the Board was tasked with assessing the impact of the misconduct on the employment relationship, a context different than that in which the sentencing judge had made his finding. Finally, some of the facts on which the Board relied in finding a breach of trust had not been before the sentencing judge. The Board's finding was reasonable given the impact of the Appellant's conduct on C and on the Force; (iii) C's VIS was admitted as an exhibit with the Appellant's consent and it supported the Board's finding that ongoing psychological trauma was affecting C. The Board's reasons also showed that it did not misapprehend the incident's sequence of events and the level of violence exerted against C; (iv) the Board's reasons demonstrated that it did not improperly ignore or reject expert evidence regarding the Appellant's rehabilitation efforts. The Board weighed the totality of the Appellant's rehabilitation efforts. There was no contradiction between the expert's qualified prognosis and the Board's findings of a limited commitment to rehabilitation and a high potential for recurrence. Although the Board erred in finding that the Appellant should have recognized his alcoholism due to training received from the Force and that he had promised to abstain from alcohol, these errors related to the Appellant's circumstances prior to the incident and did not materially impact on the reasonableness of the Board's broader conclusions regarding the Appellant's rehabilitative potential; (v) the Board's reference to inappropriate behaviour by the Appellant in two prior instances was supported by the evidence. The Board's reliance on those incidents in assessing the Appellant's overall employment history was acceptable given the Appellant's assertion that he had been a credit to the Force. Although the Board erred in describing one of those incidents as a breach of trust of the female member involved, this error was not determinative in the Board's conclusion regarding sanction given the Board's emphasis on the severity of the incident itself and the Appellant's rehabilitation record; and (vi) the Board properly assessed prior cases for the purpose of determining an appropriate sanction. Its reasons revealed no error in the manner in which levels of violence and efforts at rehabilitation in those prior cases were compared to the Appellant's circumstances.

The ERC recommended to the Commissioner of the RCMP that he dismiss the appeal and confirm the Board's decision.

The member retired in February 2015 therefore no decision was rendered by the Commissioner.