Date: 20000519
Docket: T-2181-99
BETWEEN:
ROBERT ARTHUR LEE
Applicant
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
(ROYAL CANADIAN MOUNTED POLICE)
and THE COMMISSIONER OF THE ROYAL
CANADIAN MOUNTED POLICE, J.P.R. MURRAY
Respondents
REASONS FOR ORDER AND ORDER
CAMPBELL, J.
[1] In December 1998, the Applicant, who at the time held the rank of Corporal in the Royal Canadian Mounted Police, plead guilty to two allegations of disgraceful conduct according to the disciplinary procedures provided in ss.37 - 45.17 of the Royal Canadian Mounted Police Act R.S.C., c. R-9 (the "Act"). As part of the sanction confirmed by the Commissioner of the Royal Canadian Mounted Police (the "Commissioner"), the Applicant was demoted to the rank of Constable. The Applicant objects to the demotion and seeks to set it aside by the present application.
[2] The disciplinary process provided under the Act first involves a hearing before an Adjudicative Board in which evidence is called with respect to the allegations, and if founded, with respect to the sanction to be imposed. An appeal lies to the Commissioner from a decision of the Adjudicative Board. However, before considering an appeal, the Commissioner must refer the case to an External Review Committee for the purpose of receiving findings and recommendations which must be considered before rendering an appeal decision. In addition to the recommendations, the Commissioner must consider the record of the hearing before the Adjudication Board, the statement of appeal, and any written submissions made. The Commissioner is not bound by the External Review Committee"s recommendations, but if they are not followed, he must give reasons for doing so.
[3] Before the Adjudication Board, the Applicant plead guilty to the following allegations and, in the course of so doing, admitted the following particulars:
| Allegation #1: |
| On or about the 8th day of March, 1997 at or near the City of Vancouver, in the Province of British Columbia, Cpl. R.A. Lee conducted himself in a disgraceful manner that brings discredit on the Force, contrary to Regulation 39(1) of the Code of Conduct of the Royal Canadian Mounted Police, being subsection 39(1) of the Royal Canadian Mounted Police Regulations (1988). |
| Particulars: |
| 1. At all material times, you were a member of the Royal Canadian Mounted Police stationed in "E" Division. |
| 2. While off duty, on or about 97-03-08, you were operating a covert police motor vehicle, proceeding southbound along the Cambie Street Bridge, in Vancouver, B.C.. |
| 3. While in operation of the motor vehicle, your ability to do so was impaired by alcohol. |
| Allegation #3: |
| On or about the 8th day of March 1997, at or near the City of Vancouver, in the Province of British Columbia, Cpl. R.A. Lee conducted himself in a disgraceful manner that brings discredit on the Force, contrary to regulation 39(1) of the Code of Conduct of the Royal Canadian Mounted Police, being subsection 39(1) of the Royal Canadian Mounted Police Regulations (1988). |
| Particulars: |
| 1. At all material times, you were a member of the Royal Canadian Mounted Police stationed in "E" Division. |
| 2. While off duty, on or about 97-03-08, you were operating a covert police motor vehicle, proceeding southbound along the Cambie Street Bridge, in Vancouver, B.C.. |
| 3. You were stopped by a road check manned by the Vancouver City Police, and instructed to pull your vehicle to the curb. |
| 4. You then accelerated the motor vehicle past the road check area and off of the Cambie St. Bridge. |
| 5. Members of the Vancouver Police Department pursued your vehicle. |
| 6. While being pursued, you drove your motor vehicle [you proceeded] through an intersection against a red light. While doing so, you collided with a vehicle in the intersection. |
| 7. You continued to proceed through the city streets, failing to stop after the collision. While continuing onward in your vehicle you exceeded posted speed limits, and disregarded the laws pertaining to the safe operation of a motor vehicle in the province of British Columbia. 1 |
[4] With respect to the sanction to be imposed, before the Adjudicative Board the Applicant called evidence to support his assertion that at the time of his conduct he was suffering from post-traumatic stress disorder ("PTSD") stemming from his service in a United Nations policing contingent deployed to Croatia and Bosnia-Herzegovina in 1992-1993, and subsequent traumatic incidents experienced as an undercover drug enforcement officer. Indeed, the Applicant produced medical opinion which supported his assertion that the root "cause" of his dishonourable conduct was the PTSD, and this, together with an excellent prognosis for the future, should be given strong weight as mitigating factors.
[5] While finding that, were it not for the PTSD expert evidence, dismissal might be the appropriate result, the Adjudication Board imposed the following sanctions: reprimand; demotion from the position of Corporal to the position of Constable; and recommendations that the Applicant continue with counselling and after-care treatment and be transferred with a change of duties from drug enforcement.
[6] The Applicant appealed to the Commissioner. The External Review Committee accepted the Applicant"s PTSD mitigation argument and recommended that the sanction imposed should include a forfeiture of ten day"s pay in lieu of demotion together with the other terms imposed by the Adjudication Board. However, upon considering the full record, the Commissioner dismissed the appeal and upheld the demotion for the following reasons:
| I have given careful consideration to all aspects of this case. This is a very serious breach of the code of conduct. In normal circumstances, dismissal would be an appropriate sanction given that Corporal Lee fled the scene of the stop, was involved in subsequent accident and fled that scene, all the while in a legally impaired condition. I am influenced, however, by the mitigating circumstances of Post Traumatic Stress Disorder, which could have influenced his judgment. At the same time, however, Corporal Lee was previously counselled for using alcohol while driving a police car in November 1993. Taking into account all the mitigating and aggravating factors, I am of the view that the sanction imposed by the Board is appropriate. While I am sympathetic to the arguments advanced by the Committee, I must disagree with the assertion that a demotion should relate only to on the job behaviour. A leader must be seen to be a role model and serious criminal behaviour, whether on or off duty and regardless of some mitigating circumstances which may have influenced the behaviour, is in my considered opinion, an important element in determining suitability to supervise from the point of view of integrity, credibility and judgment. There are three constituencies at issue: 1) the member, 2) the organization and, 3) the public interest. A police agency is expected to set high standards and must be seen to exercise those standards in an appropriate fashion. I believe the sanction in this case balances the interests of the three constituencies. The appeal is dismissed. I confirm the Board"s decision imposing upon Corporal Lee a reprimand and an immediate demotion to the rank of constable and recommending a transfer and that counselling and after-care treatment be continued. |
| I am pleased to see that Corporal Lee has rehabilitated himself and I urge him to continue his efforts in that regard and to share his experiences as to the effects of Post Traumatic Stress Disorder with others. 2 |
[7] The Applicant"s purpose in bringing the present application is only to set aside the Commissioner"s decision confirming the Board of Adjudication"s decision to demote him from the rank of Corporal to Constable.
[8] With respect to the standard of review to be applied, it is agreed that, following the Appeal Division decision of this Court in The Attorney General of Canada v. Claude Ranson Millard (Docket: A-495-98, delivered March 2, 2000), the Commissioner"s decision cannot be set aside unless it is shown to be patently unreasonable. 3
[9] The Applicant argues that the error which renders the Commissioner"s decision patently unreasonable is the Commissioner"s finding that the PTSD "could have influenced" the Applicant"s judgment rather than to have "caused" the misconduct itself as was expressed in the medical opinion produced before the Adjudication Board.
[10] In my opinion, there is no error in this finding. The Commissioner is entitled to assign weight to expert opinion on the record, and, in so doing in the present case, was distinctly influenced by the expert opinion concerning PTSD, but not to the extent argued by the Applicant or recommended by the External Review Committee.
[11] The second argument in support of interfering with the Commissioner"s decision is the argument that the Applicant"s equality rights under s.15 of the Charter of Rights and Freedoms have been offended because he was demoted because of his PTSD illness.
[12] As was the case with the deliberations of both the Adjudication Board and the External Review Committee, the Commissioner"s decision is simply the result of a weighing of mitigating and aggravating factors. I find that the s.15 argument respecting the demotion is groundless because there is no evidence whatsoever to establish that the Applicant suffered any differential treatment.
[13] Accordingly, this application is dismissed. I award no costs.
(Sgd.) "Douglas Campbell"
Judge
May 19, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: T-2181-99 |
| STYLE OF CAUSE: Robert Arthur Lee |
v.
| HMQ et al |
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: May 16, 2000 |
REASONS FOR ORDER AND ORDER OF CAMPBELL, J.
| DATED: May 19, 2000 |
APPEARANCES:
| Ms. Catherine Crockett For the Applicant |
| Mr. Jack Wright For the Respondents |
SOLICITORS OF RECORD:
Karen F. Nordlinger & Associates
Barristers and Solicitors
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondents |
__________________
1 Applicant"s Application Record, pp. 229-230.
3 Millard concerns a scrutiny of the multi-layered R.C.M.P. grievance procedure established under the Act and decides that, in imposing the patent unreasonableness standard that "only in the most unusual circumstances should a reviewing Court intervene in decisions made by a series of tribunals that have been specifically designed for the task"[parag. 9]. It is agreed that the disciplinary process under the Act is similarly designed.