D-138 - Adjudication Board Decision

The Appellant, while working an overnight shift, responded to a call alleging an assault by Ms. X. Ms. X was eventually arrested and placed in a cell. Ms. X was perceived to be highly intoxicated and dressed very lightly for the winter weather. At approximately 5:00 a.m., the Appellant retrieved Ms. X from her cell and obtained a short statement. Ms. X was then briefly returned to her cell, while the Appellant assessed her file. At that time, the Appellant decided to release Ms. X. Ms. X was then directed outside of the detachment, while the Appellant ran through to the other side of the detachment to acquire his police vehicle and drive her home. The Appellant and Ms. X then drove towards Ms. X’s residence at inordinately high speeds. The Appellant and Ms. X stopped for several minutes near Ms. X’s residence prior to the Appellant dropping off Ms. X at her home. Several days later, Ms. X was arrested again. At that time, she alleged that the Appellant had forced her to perform a sexual act during the stop, while taking her home. An investigation was mandated and two allegations of disgraceful conduct, contrary to the Code of Conduct, were filed against the Appellant.

After the hearing, the Adjudication Board (Board) rendered its oral decision, finding that the Appellant did force Ms. X to perform a sexual act and failed to respect Ms. X’s safety when hastily dropping her off at her home, unaccompanied. Based on these findings, the parties were in agreement that the only possible sanction was an order to resign or be dismissed within 14 days.

The Appellant appealed the Board’s Decision on the allegations. In so doing, he tried to submit two new documents: a doctor’s note; and a Statement of Claim which he suggested assailed Ms. X’s credibility.

The ERC found that the two pieces of fresh evidence should not be admitted. First, the medical evidence could have been acquired during the years leading up to the hearing, but was not, without a reasonable explanation. Second, the Statement of Claim was unhelpful. It was simply a claim, the accuracy of which would be tested in an alternate process. Moreover, Ms. X’s credibility was thoroughly tested at the hearing and, although the Board acknowledged that her evidence was shaky on certain minor details, it found her evidence about the sexual act to be steadfast and unwavering. The Statement of Claim would not have affected the result of the hearing.

The ERC found that the Appellant had essentially made a number of requests to re-weigh the evidence. However, none of the Appellant’s arguments pointed to a palpable and overriding error. The Board was owed significant deference on its review of findings of fact and the credibility of witnesses. The Board did not err in its findings of fact or assessment of the principal witnesses’ credibility. Therefore, there was no reviewable error.

The ERC recommended that the Commissioner dismiss the appeal and confirm the Board’s decision.

The Commissioner’s decision, as summarized by her office, is as follows:

The Appellant appeals the Board’s Decision that the allegations of disgraceful conduct against him were established. The allegations relate to the events that occurred regarding the arrest and release of the Complainant. After regaining her sobriety at the station, the Appellant drove the Complainant home, pulling over and coercing her to perform a sexual act on him. He proceeded to take her home but failed to ensure the Complainant’s safety when he dropped her off on the highway instead of in front of her home. The Board determined that the Appellant’s testimony was not credible with respect to his intent to drive the Complainant home.

The Appellant sought to submit medical documents from his treating physicians as a request to admit fresh evidence. The ERC determined that the Appellant’s medical evidence does not satisfy the due diligence requirement of the Palmer test. The Appellant maintains that the reason why the evidence had not been submitted to the Board at the time of the hearing was his counsel not knowing that the doctor could testify regarding the Appellant’s condition.

The ERC found that the Appellant’s arguments amount to an attempt to reweigh the evidence in order to come to a conclusion that favours his position instead of presenting an argument that would affect the overall finding of the Board.

I agree with the ERC. I do not see any signs of a palpable or overriding error on the part of the Board that would justify my intervention to reweigh the evidence and question the Complainant’s credibility. I will consequently not undertake a redetermination of the evidence. I owe a high degree of deference to the Board, particularly as it pertains to questions of fact. The Appellant has failed to demonstrate that intervention is warranted. The appeal is dismissed.