Warning: This story contains details that may be disturbing to some readers.
The actions of a Victoria police officer while off duty in Vancouver almost two years ago will now be the subject of a public hearing.
The Office of the Police Complaint Commissioner announced Wednesday it had called a public hearing into allegations of police misconduct following an earlier investigation into the complaint of sexual misconduct against the officer.
A public hearing notice states on May 11, 2018, a female complainant travelled to the Vancouver area to visit a friend. The next day, the individual and her friend visited a number of places for food and alcoholic drinks.
Later in the day, the individual and her friend met with a mutual friend and a group of his friends. The off-duty VicPD member was part of this group. The background in the notice of public hearing states the group “engaged in significant alcohol consumption throughout the evening.”
At approximately 2:30 a.m., the group returned to a downtown Vancouver hotel where the off-duty member and his two friends had previously booked a room for the night. The complainant and her female friend stayed the night at this downtown Vancouver hotel in the room with the off-duty member and his friend.
The public hearing notice says sexual activity occurred between the complainant and the off-duty member; however, “there is a divergence in the evidence in terms of whether the sexual activity was consensual.”
The complainant reported to police that she was sexually assaulted by the off-duty member while she was incapacitated due to her alcohol consumption.
The public hearing announcement comes after an independent investigation by the Vancouver Police Department, after which the matter was referred by Police Commissioner Clayton Pecknold to a retired judge for review.
The external investigation into the conduct of the off-duty Victoria police officer in relation to an alleged sexual assault was ordered by the police complaint commissioner on June 19, 2018, based on information from the Victoria Police Department.
The police complaint commissioner designated the Vancouver Police Department to do the investigation. The investigation was suspended until Nov. 28, 2018, after a criminal investigation into the matter concluded without charges.
On June 13, 2019, Vancouver Police Inspector Shelly Horne identified one allegation of Discreditable Conduct, pursuant to section 77(3)(h) of the Police Act, against the off-duty member, and determined that this allegation did not appear to be substantiated.
Horne found that although the complainant was highly intoxicated, she was “not intoxicated to the degree that she lacked the capacity to consent based on the evidence reviewed.” Horne found the off-duty member to be a credible witness and his description of the sexual contact with the complainant supported the proposition that he believed he had consent to touch her sexually.
In the subsequent discipline proceeding, retired Judge James Threlfall determined that the evidence did not support a finding of misconduct.
On Feb. 4, 2019, the Office of the Police Complaint Commissioner received a registered complaint from the female individual in the incident, alleging that she was the victim of a sexual assault by a Victoria Police Department police officer. She requested the police complaint commissioner arrange a public hearing.
The commissioner said the complainant wrote in her request, the public hearing would “assist in determining the truth, as she and other witnesses would have the opportunity to testify rather than hearing only from the member with respect to his version of the events.”
The discipline proceeding did not have any witness testimonies as in those proceedings, the police officer whose conduct is being looked into has to call witnesses.
“Having reviewed the investigation, the Discipline Proceeding and associated determinations, pursuant to section 138 of the Police Act, I have determined that a Public Hearing is required and necessary in the public interest,” Pecknold wrote.
“In determining that a Public Hearing is necessary in the public interest, I have considered several relevant factors, including, but not limited to the following:
- The complaint is serious in nature as the allegations relate to non-consensual sexual contact that affects the dignity of a person.
- An arguable case can be made that the Discipline Authority’s interpretation or application of Part 11 of the Police Act was incorrect. I disagree with the Discipline Authority’s conclusion that in the absence of the commission of a sexual assault, the off-duty conduct of the member could not amount to misconduct. In my view, the allegation of Discreditable Conduct cannot be restricted to the discrete question of whether a sexual assault occurred. As established in Mancini v. Constable Martin Courage, OCCPS #04-09 and widely applied by Discipline Authorities in BC, ‘the concept of Discreditable Conduct covers a wide range of potential behaviours. The test to be applied is primarily an objective one. The conduct in question must be measured against the reasonable expectation of the community.’
- It is necessary to examine and cross-examine witnesses and receive evidence that was not part of the record at the Discipline Proceeding in order to ensure a complete accounting of the events and to allow for the credibility of all parties to be fully assessed;
- There is a reasonable prospect that a public hearing will assist in determining the truth; and
- A public hearing is required to preserve public confidence in the Victoria Police Department.”
Judge Wally Oppal, a retired Supreme Court Justice, has been appointed as the adjudicator in the public hearing. The judge will decide whether there is misconduct and if necessary, determine the corrective and/or disciplinary measures to be imposed.
The appointed retired judge can also make recommendations to the Chief Constable or Police Board concerning any changes in policy or practice that the retired judge considers advisable.
Names of those involved in the matter have been withheld to protect the identity of the complainant. A date for the public hearing has not been announced.
The police complaint commissioner is a civilian, independent officer of the B.C. legislature overseeing complaints, investigations and discipline involving municipal police in British Columbia.
Pecknold wrote this was the first opportunity in the Police Act process for a public hearing to be arranged. A Special Committee of the Legislature has recommended that the Police Act be amended to permit the commissioner to arrange a public hearing much earlier in the process.
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