D-131 - Adjudication Board Decision

The Respondent responded to a 10-33 call, a call made when an officer's safety is in jeopardy. Upon arriving at the scene, the Respondent found two officers struggling to arrest an adult male suspect who was passively resisting the arrest. One officer was administering thumb strikes to the torso and the other office was punching the suspect in the head. The Respondent promptly intervened by delivering knee strikes to the suspect, one of which connected with the suspect's head and subdued him, enabling the officers to make the arrest. The Appellant initiated disciplinary proceedings alleging that all three of the officers acted disgracefully, contrary to s. 39(1) of the Code of Conduct. The parties agreed to proceed via the “Early Resolution Discipline Process”. The Agreed Statement of Facts (ASF) contained only one sentence regarding the Respondent's actions during the arrest of the suspect. The Adjudication Board (Board) held a brief video hearing during which each of the three officers admitted the allegation against him. The Appellant made one very short, general oral submission in relation to the Respondent's conduct.

The Board concluded that the allegation against the Respondent was not established. The Board stated that the Respondent's admission of the allegation was not determinative, as the test was whether a reasonable person with knowledge of RCMP policing would consider the conduct disgraceful. In the Board's view, the Respondent conducted himself in a manner that a reasonable person would have expected, given the Respondent was responding to a 10-33 call and arrived on the scene to find a physical struggle or fight ongoing. As part of its reply to an unrelated question posed by the Appellant following the delivery of its oral decision, the Board remarked that, during its brief deliberations, it discussed a recognized interventions policy. The Board also distinguished the Respondent's conduct from the culpable conduct of another of the officers. Finally, the Board said it may have reached a different decision had the evidence contained some indication that the Respondent's knee strike to the suspect's head was deliberate and disproportionate in the circumstances.

The Appellant appealed the Board's decision. The Appellant asserted that the Board misunderstood or did not give effect to the plain meaning of certain agreed facts within the ASF, considered a policy without inviting the parties to speak to that document, and failed to place adequate weight on the Respondent's admission of the allegation. The Appellant also filed a rebuttal which he felt should be admitted based on procedural fairness principles.

The ERC found that nothing in the RCMP Act or the rules of procedural fairness afforded the Appellant the right to file a rebuttal on appeal. Accordingly, the ERC recommended that the Appellant's rebuttal not form part of the appeal record.

The ERC found that the Appellant failed to establish the grounds of appeal. The Board made no manifest and determinative error in its apprehension of the agreed facts set out in the ASF or in its consideration and weighing of the Respondent's admission of the allegation. The Board's oral and written decisions reveal that the Board understood the agreed facts in the ASF and that it properly evaluated those facts against the objective test for ascertaining disgraceful conduct.

The Board carefully explained its reasoning in support of its determination. Although the Appellant took issue with a statement made by the Board regarding the nature of the struggle confronting the Respondent upon his arrival at the scene of the arrest, the Board's description of the scene in its decision as a whole was consistent with the ASF.

The Board did not act in a procedurally unfair manner by discussing a policy during its deliberations without first inviting the parties to make submissions regarding the application of the policy to the facts of the case. It is not clear that the Board relied on the policy when reaching its conclusions regarding the Respondent's conduct or that the policy constituted new evidence for the purposes of the hearing. The Board did not identify a specific provision of the policy on which it relied nor did it refer to the policy again in its oral or written decisions. Moreover, the fact that the policy may have generally informed the Board's deliberations is not in and of itself procedurally unfair. As senior officers, the members of the Board would have had experience with and knowledge of the policy. A police discipline board may use its own experience and specialized knowledge when making assessments as long as it does not do so to fill in a gap in the record or to make an essential factual finding. There is no evidence that the Board used the policy in this way.

The ERC recommended to the Commissioner of the RCMP that he dismiss the appeal and confirm the Board's decision pursuant to paragraph 45.16(2)(a) of the RCMP Act.

The Commissioner's decision, as summarized by his office, is as follows:

Appeal from a decision that an allegation of disgraceful conduct against the Respondent was not established. The Respondent answered a 10-33 call and found two members already struggling to subdue a passively resisting adult male. The Respondent intervened and administered knee strikes, one of which connected with the male's head. The Respondent admitted the allegation during a brief video hearing where the parties submitted an agreed statement of facts.

The Board found the allegation was not established based on the context in which the Respondent acted. The admission of the Respondent was not determinative, there was no evidence of a deliberate knee strike to the head, and the Respondent had to assume that the male was arrestable and had jeopardized officer safety based on the 10-33 call and what he observed when he arrived on scene. Allegations of disgraceful conduct against the other two members were established and were not appealed. The Board distinguished between their conduct and the Respondent's.

The Appellant argued that the Board misunderstood the agreed facts and believed that the male was actively resisting, considered the IMIM in its deliberations without inviting party submissions on the subject, and failed to place adequate weight on the Respondent's admission.

The Commissioner accepted the ERC's recommendation and found that the Appellant did not establish the grounds of appeal. There was no procedural error in considering the IMIM, the IMIM did not constitute new evidence, and there was no evidence that the Board relied on the IMIM when making its decision. A Board is expected to use its experience and general policing knowledge when making assessments as long as it is not used to fill in a gap in the evidence or make an essential fact finding. The Respondent's admission was not determinative. The Board did not misunderstand the agreed facts, nor did it conclude the male was actively resisting. The decision was reasonable.