A Victoria police officer has been suspended for 30 days without pay for committing an act of discreditable conduct in an off-duty “unwanted” or “non-consensual sexual activity” in Vancouver in 2018 — a punishment one expert says is essentially a slap on the wrist with no meaningful resolution.
The Office of the Police Complaint Commissioner (OPCC) determined in August that VicPD officer Sgt. Brent Keleher committed discreditable conduct in concluding that a “heavily” intoxicated woman could consent to sexual activities that took place during a night out drinking in downtown Vancouver in May 2018.
In OPCC adjudicator Wally Oppal’s decision he found the complainant, who he said was a credible witness, “did not have the capacity to consent” to sexual activities with Keleher and “did not in fact consent.”
Keleher argued that she consented and, at the very least, he was honestly mistaken in his belief that she had consented to the acts, which Oppal dismissed as “not credible” evidence.
“Moreover, at the very least, Sgt. Keleher was reckless in concluding she had consented to the activities that took place,” Oppal wrote.
Keleher had made an application to the OPCC for his name to be redacted from the proceedings, which was denied.
No sexual assault charge laid
Keleher, a senior officer who has been with the department for 19 years, was not charged with sexual assault in the incident.
“Sexual assaults are tried under the criminal code and there was no sexual assault here at all. This was a case under the Police Act and it was about discreditable conduct,” Oppal told CHEK News on Wednesday.
According to Oppal, Vancouver Police carried out a criminal investigation initially, but they, an independent judge, and prosecutor believed there wasn’t enough evidence to lay charges.
“The proof in the criminal code is proof beyond a reasonable doubt,” said Oppal. “The burden of proof under the Police Act is called a balance of probabilities, in other words, 51 per cent. More probable than not. So it doesn’t take much to find someone has committed misconduct.”
The OPCC says the judgment is pivotal in finding discreditable conduct can exist even if a criminal offense has not been found.
“Simply because an officer hasn’t been found to commit a criminal offence, that does not automatically absolve them from any accountability or responsibility under the Police Act, particularly when it relates to off-duty conduct,” Andrea Spindler, deputy police complaint commissioner at the OPCC.
“It’s important from a public policy perspective that the public has confidence in their police officers…that they’re held to a higher standard.”
That higher standard is the Police Act., intended to hold police officer’s on and off-duty behaviour accountable. However, the Police Act is not meant to be punitive and is supposed to act as an accountability check to maintain public trust and confidence in police.
Police Act doesn’t properly address systemic sexual violence: expert
Charlotte Mitchell, Ph.D. student at the University of Alberta, wrote her master’s thesis on police sexual misconduct. She says the Act’s minimal punishments prevent real accountability and therefore functions to actually erode public trust.
“The charges in this case are 30 days without pay, without any type of other accountability measures or learning measures. Any other type of justice is being ignored here in favour of the officer,” said Mitchell. “These types of charges are meant to protect the officers from the adverse effects that these charges hold and not protect or serve any sort of accountability for the community.”
She says dealing with sexual misconduct issues through the Police Act without meaningful resolution, shoves the issue of sexual violence under the rug, leaving unaddressed the systemic issue of police sexual violence within their own departments and institutions.
“There’s a lot of research out there of hegemonic masculinity within policing, racism and sexisim. And these systemic issues are all present in policing and investigations into police officers,” said Mitchell.
“At the end of the day, it’s just minimizing the impact and the pervasiveness of police sexual violence to the public. The mentality that this isn’t a big deal that gets transferred into discreditable conduct charges that are administrative and short and with no real methods for accountability.”
In considering appropriate corrective measures, Oppal noted that Keleher has no history of misconduct in his 19-year career with VicPD, stating that he is “respected, not only by his colleagues, but by many members of the community.”
The decision outlines the outpouring of support Keleher received, including two female officers and his sister-in-law, who calls him a “nice guy,” as well as support from Victoria’s Police Chief Del Manak.
“It really shows the mentality of protecting their own over any cost as public accountability to these actions. The excuse that someone is a good guy or person and could not commit sexual assault is a very pervasive trope,” said Mitchell.
Oppal said in his decision that dismissing the officer outright would have an adverse effect on his family and career, adding that Keleher has shown remorse and accepted responsibility for the misconduct.