Royal Canadian Mounted Police Act
Part VII
Subsection 45.46(3)

CHAIRMAN'S FINAL REPORT
FOLLOWING A PUBLIC HEARING

Complainant:
Chairman of the RCMP Public Complaints Commission

PANEL

Kenneth A. Stevenson, Q.C, Chairman
Joyce E. Webster Member
Graham W. Stewart Member

January 1996

File: 2000-PCC-930662

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CHAIRMAN'S FINAL REPORT AFTER A PUBLIC HEARING

I. INTRODUCTION

The Process

Under subsection 45.43(1) of the RCMP Act, the Commission Chairman, where he considers it advisable in the public interest, may institute a public hearing to inquire into a complaint whether or not it has been investigated or reported upon or dealt with by the RCMP. The Commission Chairman will then assign members of the Commission to conduct that hearing and those members will be considered the Commission for the purposes of the hearing. Section 45.45 of the Act sets out some of the rules governing the hearings such as that any person giving evidence at a hearing may be represented by counsel. When the hearing is completed, the Commission, that is, the members comprising the panel that conducted the hearing, will prepare an interim report setting out their findings and recommendations about the complaint and that report is sent to the Solicitor General of Canada, the RCMP Commissioner and to all parties and their counsel appearing at the hearing.

Upon receipt of the interim report, the RCMP Commissioner is required to review the complaint in light of the report's findings and recommendations. The Commissioner must then notify the Chairman of the Commission of any further action that has been or will be taken with respect to the complaint or his reasons for not acting on any of the findings or recommendations.

After considering the Commissioner's notice, the Chairman of the Commission will prepare a final report setting out such findings and recommendations with respect to the complaint as he sees fit. That report is sent to the Solicitor General of Canada, the RCMP Commissioner and to all parties and their counsel appearing at the hearing.

II. INTERIM REPORT

Interim Report and Commissioner's Notice

In the present case, the Interim Report dated August 16, 1995, setting out findings and recommendations, was sent to the Solicitor General and the Commissioner. The Commissioner gave notice of the action he would be taking in a letter to the Chairman dated November 10, 1995.

The present report is the Chairman's final report with respect to this complaint. It contains, as a background to any final findings and recommendations. the contents of the Interim Report, which includes a summary of the complaint, the Force's investigation of the complaint, the general observations, and the interim findings and recommendations. This Final Report also includes the Commissioner's letter of November 10, 1995.

III. RCMP COMMISSIONER'S NOTICE

As stated under subsection 45.46(2) of the Act, the Commissioner forwarded the following notice to the Commission Chairman, the content thereof reads as follows:

I acknowledge receipt of the interim report of August 16, 1995, file references 2000-PCC-930662, 93G-0637, and materials relevant to the complaint of the RCMP Public Complaints Commission Chairman.

The conclusions have been examined and the following notice is provided pursuant to the Royal Canadian Mounted Police Act.

I concur with your findings. Regarding your first recommendation, in my opinion, policy as suggested would be of more value if it were incorporated into the Complaints and Internal Investigators' Handbook. This handbook is employed by all investigators conducting internal investigations. I will therefore be instructing the Director of Personnel to ensure that a policy along the lines developed in "K" Division be included in the handbook.

I also accept your second recommendation. The Director of Personnel will also be instructed to ensure that the points raised by the Panel on pages 18 and 19 of the interim report are captured and incorporated into the handbook. I am certain that this should satisfy the recommendation and ensure that investigators fully understand the policy and recognize that it is the investigation into sexual character itself which can be unnecessarily invasive of privacy. Investigators will thus be made aware that the inquiry may well fall into the public domain and that the investigation could potentially cause some harm. Thank you for your advice.

I look forward to receiving your final report.

IV. CHAIRMAN'S FINAL CONCLUSIONS AND RECOMMENDATIONS

The Commission Hearing Panel that completed the hearing into this complaint presented a comprehensive Interim Report in this matter. The Panel made findings and recommendations with respect to the complaint. I wish therefore, after having considered the Commissioner's Notice reproduced in Part III herein, to state my final conclusion with respect to these complaints.

Since the Commissioner concurs with the findings of the Hearing Panel, I am satisfied with the Commissioner's notice and need not add anything further.

Chairman

January 9, 1996

Jean-Pierre Beaulne, Q.C.
Chairman
RCMP Public Complaints Commission
P.O. Box 3423, Station "D"
Ottawa, Ontario
K1P 6L4

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Royal Canadian Mounted Police ~ Gendarmerie royale du Canada

J. P.R. Murray
Commissioner Le Commissaire

November 10, 1995

Jean-Pierre Beaulne, Q.C.
Chairman
RCMP Public Complaints Commission
P.O. Box 3423, Station "D"
Ottawa, Ontario
K1P 6L4

Dear Mr. Beaulne:

I acknowledge receipt of the interim report of August 16, 1995, file references 2000-PCC-930662, 93G-0637, and materials relevant to the complaint of the RCMP Public Complaints Commission Chairman.

The conclusions have been examined and the following notice is provided pursuant to the RCMP Act.

I concur with your findings. Regarding your first recommendation, in my opinion, policy as suggested would be of more value if it were incorporated into the Complaints and Internal Investigators' Handbook. This handbook is employed by all investigators conducting internal investigations. I will therefore be instructing the Director of Personnel to ensure that a policy along the lines developed in "K" Division be included in the handbook.

I also accept your second recommendation. The Director of Personnel will also be instructed to ensure that the points raised by the Panel on pages 18 and 19 of the interim report are captured and incorporated into the handbook. I am certain that this should satisfy the recommendation and ensure that investigators fully understand the policy and recognize that it is the investigation into sexual character itself which can be unnecessarily invasive of privacy. Investigators will thus be made aware that the inquiry may well fall into the public domain and that the investigation could potentially cause some harm. Thank you for your advice.

I look forward to receiving your final report.

Sincerely,

J.P.R. Murray

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APPENDIX

2000-PCC-930662

RCMP PUBLIC COMPLAINTS COMMISSION

RCMP Act - Part VII
Subsection 45.45(14)

COMMISSION INTERIM REPORT

Following a Public Hearing
Into the Complaint

of

the Chairman of the
RCMP Public Complaints Commission

PANEL

Kenneth A. Stevenson, Q.C., Chairman
Joyce E. Webster, Member
Graham W. Stewart, Q.C., Member

Hearing: Edmonton, Alberta
November 28, 29, 30, 1994
December 1,2, 1994
March 27, 28, 29, 30, 1995

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LETTER OF TRANSMITTAL

To: The Honourable Herbert E. Gray
Solicitor General of Canada

To: Commissioner Phil Murray
Royal Canadian Mounted Police

The undersigned were appointed by Jean-Pierre Beaulne, Q.C., Chairman, Royal Canadian Mounted Police Public Complaints Commission, pursuant to the authority invested in him under Part VII of the Royal Canadian Mounted Police Act, to conduct a public hearing to inquire into the complaint by the Chairman of the RCMP Public Complaints Commission in respect of the conduct of Staff Sergeant B.K. McLeod in the performance of his duties when investigating the allegations of sexual misconduct against Constable P.D. Adams on or about October 27, 1991 and reporting information about aspects of the sexual history of the woman referred to in the allegation of misconduct against Constable P.D. Adams.

We have the honour of submitting this Report in accordance with subsection 45.45(14) of the Royal Canadian Mounted Police Act.

Kenneth R. Stevenson, Q.C.
Joyce E. Webster
Graham W. Stewart, Q.C.

August 16, 1995

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TABLE OF CONTENTS

1. Hearing Process

2. The Complaint

3. Preliminary Matters

4. The Background Facts

5. Evidence

6. The Issue

7. The Panel's Opinion

8. Recommendations

Schedule "A"

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1. HEARING PROCESS

By Notice of Decision to Institute a Hearing and Assignment of Hearing Members dated June 6, 1994 and amended July 22, 1994, Jean-Pierre Beaulne, Q.C., Chairman, RCMP Public Complaints Commission, instituted a hearing into the complaint by the Chairman of the RCMP Public Complaints Commission in accordance with the authority contained in the Royal Canadian Mounted Police Act, 1986.

In the Notice of Decision, Jean-Pierre Beaulne identified Staff Sergeant B.K. McLeod as a party.

The Notice assigned Kenneth A. Stevenson, Q.C., as Chairperson and Joyce E. Webster and Graham W. Stewart, Q.C., as members of the Commission to conduct the hearing.

The hearing was convened and held in public at Edmonton, Alberta, on November 28, 29, 30, December 1, 2, 1994 and March 27, 28, 29 and 30, 1995.

Throughout the hearing the Commission was assisted by the following counsel:

Mr. Pierre -Y. Delage
Commission Counsel

Ms. Susanne Frost and Ms. Barbara Ritzen
Counsel for the "Appropriate Officer" of the RCMP

Mr. Chris D. Evans, Q.C.
Counsel to S/Sergeant McLeod

2. THE COMPLAINT

The responsibility of this Commission panel is to conduct a public hearing into a complaint made by the Chairman of the RCMP Public Complaints Commission, pursuant to section 45.37 of the RCMP Act, R.S.C. R. 9. The complaint (as amended) is as follows:

The Chairman of the RCMP Public Complaints Commission, being satisfied that there are reasonable grounds to investigate the conduct of Staff Sergeant B.K. McLeod in that he may have abused his authority while investigating allegations of sexual misconduct against Constable P.D. Adams on or about October 27, 1991, is initiating a complaint about the conduct of Staff Sergeant B.K. McLeod in the performance of his duties when investigating and reporting information about aspects of the sexual history of the woman referred to in the allegation of misconduct against Constable Adams.

3. PRELIMINARY MATTERS

On November 23, 1994, during a telephone conference involving all counsel, Ms. Suzanne Frost made a motion on behalf of the appropriate officer to quash the subpoena issued for Inspector A.D. MacIntyre. The basis of the motion was that Inspector MacIntyre was not the superior officer of Staff Sergeant McLeod at the time of the McLeod internal investigation and that he had nothing of relevance to offer in evidence. She stated that Inspector MacIntyre was posted in Yellowknife, that he was involved only in the Criminal Code investigation and that his report could be received, without the necessity of viva voce evidence. All counsel considered that the criminal investigation and its results could be relevant. The panel ruled that it could not, in a preliminary way, quash the subpoena issued by Commission Counsel on the basis that Inspector MacIntyre's evidence was not relevant.

At the commencement of the hearing, Ms. Frost, on behalf of the appropriate officer, objected to the jurisdiction of the Panel on the basis that the wording of the complaint failed to provide particulars as to the "public interest" referred to in the Chairman's complaint under ss. 45.43(1) of the RCMP Act, and also that the complaint failed to provide sufficient particulars of the potential "abuse of authority" committed by Staff Sergeant McLeod in the conduct of his duties.

The Panel ruled that it was not incumbent upon the Commission Chairman to state what, in his opinion, is the "public interest" when he makes his decision to institute a hearing pursuant to ss. 45.43(1) of the RCMP Act. The Panel in issuing its ruling noted agreement with the decision of Mr. Lyman R. Robinson, Q.C., issued in respect of a complaint of Mr. Cameron Ward. At page 9 of the Commission Report, Mr. Robinson said "it is not the function of the hearing panel which has been assigned to conduct the hearing, to review the decision of the Chairman of the Commission with respect to whether or not a sufficient public interest had been identified, or whether or not a hearing should have been instituted."

The panel also ruled that the Notice was adequate to particularize the nature of the conduct complained about and to give the parties sufficient notice of the nature of the complaint.

C.D. Evans, Q.C., counsel on behalf of Staff Sergeant McLeod, submitted that on the basis of general statements made by the RCMP Commissioner to the media regarding the propriety of sexual history investigations, there was a reasonable apprehension of bias and that a report by the RCMP Public Complaints Commission to the Commissioner would be essentially to no effect. He submitted therefore that the hearing should not proceed and the complaint should be quashed, or the issue should be referred to the Federal Court for a ruling.

The Panel was of the opinion that the matter should not be referred to the Federal Court for ruling, nor should the complaint be quashed: the Panel ruled that the hearing should proceed. In making its decision. the Panel considered that its role is to conduct a hearing and to make findings and/or recommendations. The Panel's review of the scheme of the RCMP Act, in particular, Part VII, shows that the Act contemplates that complaints may be made to the RCMP and may be investigated by the RCMP through to the point of a completion of an investigation; section 45.4 contemplates that upon completion of the investigation, the RCMP Commissioner shall send out a report setting out the matters noted therein. This is contemplated to be a final report. This final report under section 45.4 would set out the summary of the complaint, the results of the investigation and a summary of the action that has been taken or will be taken with respect to the resolution of the complaint, as well as advising the complainant of the right to refer the matter to the RCMP Public Complaints Commission. Section 43.41 contemplates circumstances where a complainant is not satisfied with the disposition of the complaint by the Force. The complainant may apply to the Commission for a review; the Act further empowers the Commission Chairman to either investigate or to order a hearing.

It is clear that the Act contemplates statutorily a report being made by the Commissioner; that report may be consistent with either a finding of no improper conduct, or a finding of improper conduct, or a finding of conduct with recommendations. Notwithstanding the fact that the Commissioner has made a report, the Act contemplates that there still is a role for the Commission Chairman and for hearing panels. This Panel is of the opinion that whether there was or was not a Part VII investigation is not determinative of the issue. The Act contemplates that a report is made by the Commissioner or in the Commissioner's name, in which findings can be made; the Act mandates further hearings such as this hearing. This may be done in circumstances where the Commissioner has made a report or made a comment and the matter is then referred to a hearing panel or to the Chairman. This does not result in there being a reasonable apprehension of bias as a result of following the statutory processes. The Act contemplates that following a Part VII investigation a hearing can occur. This is Parliament's direction in accordance with the statutory scheme.

4. THE BACKGROUND FACTS

On October 27, 1991 a brief sexual encounter occurred between Constable P.D. Adams, a member of the RCMP Leduc Alberta Detachment (hereinafter referred to as "Adams"), and a 19-year-old female (hereinafter referred to as "K"). On November 3, 1991, Constable Gopp, another member of the Leduc Detachment, was informed of the incident by K while he was in the process of charging her with a liquor possession offence. When Constable Gopp pressed for further information K declined to provide any details.

In November 1991, the General Investigation Section of the detachment began a criminal investigation (hereinafter called the "statutory investigation") into the matter. This resulted in Adams being charged with sexual assault (s. 271 C.C.), accepting a bribe (s. 120 C.C.) and obstructing justice (s.l39(2) C.C.). In late November 1992, Staff Sergeant McLeod (hereinafter called McLeod) was given the results of the statutory investigation and began a Code of Conduct investigation under the RCMP Act, Part IV.

The statutory investigation was undertaken by Inspector A.D. MacIntyre and centred around the following questions:

1. Did the alleged sexual encounter between Constable Adams and K in fact occur? (Adams had at first denied it.)

2. If so, was the act consensual or was it forced or coerced by use of Adams' authority as a police officer?

3. Was the sexual act offered by K or elicited by Adams in the nature of a bribe to avoid an impaired driving charge?

Inspector MacIntyre's statutory investigation, conducted in December 1991, revealed that K, who was 19 years of age at the time, had been drinking heavily in a lounge at a fitness club. She left alone in her vehicle at approximately 1:30 a.m. She had driven the car a few feet when she was stopped by Adams while he was in uniform and on duty. K and Adams then entered the police vehicle. A very short time later, perhaps within five minutes, K performed oral sex on Adams and they attempted sexual intercourse. Adams then drove K to the location where her friends were drinking at the fitness club. No impaired driving or other related charge was processed by Adams against K.

Inspector MacIntyre interviewed K plus nine other potential witnesses and took a warned statement from Adams. Both K and Adams denied that the sex was in the nature of a bribe. Adams stated that the sex was consensual. K's statements to different people were at first capable of varying interpretations in regard to the consent issue but her final statement to Inspector MacIntyre was to the effect that the sex was consensual.

These were obviously circumstances capable of raising a high level of suspicion and a number of inferences. Inspector MacIntyre suspected that the sexual favour was offered in lieu of being charged with impaired driving, but concluded his investigation with a recommendation that "successful criminal prosecution is unlikely" and that, at the very least, the incident "constitutes one or more Code of Conduct violations".

The Crown insisted that Adams be charged with sexual assault on the basis that he used his authority as a police officer to coerce or encourage the sexual favour. In addition, Chief Crown Prosecutor Darwin Greaves wished to charge K with a Criminal Code bribery-related offence or obstruction of justice. McLeod had been appointed to liaise with the Crown on the laying of charges. He recommended no criminal charges against anyone; he vigorously resisted the laying of any charges against K. The file was reviewed by Crown Prosecutor Stephen Koval, who also recommended that there be no charges against either Adams or K. K was not charged. All charges against Adams were dismissed by a provincial court judge following a preliminary inquiry.

The potential Code of Conduct violation was that Adams did "improperly use his position as a member of the R.C.M.P. for the purpose of obtaining a sexual advantage from K and thereby acted in a disgraceful and disorderly manner that brought discredit on the force, in violation of ss. 39(1) of the R.C.M.P. Regulation 1988". K is listed in McLeod's report as the "complainant." In fact, it is acknowledged by all witnesses that K herself never made any complaint to any person in authority respecting the incident and had expressed her wish that Adams not "lose his job" over the matter. In his investigation of Adams, McLeod made inquiry, which will be referred to in detail later, into the past sexual history and character of K; McLeod also reviewed internal files relating to the past conduct of Adams. In his report, dated August 31, 1992, at page 6, paragraph 7, McLeod referred in part to his reasoning for the investigation into K's past sexual conduct. He wished to develop a "history profile" of the two principals. He was of the belief that "focusing on character evidence should be given some regard as there are only two individuals who can account for exactly what occurred...". His report stated as follows:

In keeping with the intended spirit of this internal mandate, a fair and impartial objective presentation of all relevant facts is crucial to the persons effected [sic] by this alleged serious impropriety of a police officer. I endeavoured upon a fact-finding mission of gleaning information relating to the character profile and habits of both Constable Adams and K.

In January 1993, the Edmonton Journal published a story with regard to the criminal and the internal investigations. A number of other publications followed. The publications were generally critical of the RCMP investigation. Inspector MacIntyre suspected that his report had been "leaked" to the newspaper because of the similarity between the wording of the newspaper story and his investigator's report. Following the news story, W.L. Holmes, acting C.O. of "K" Division, requested Inspector A.A. Spaans, Officer in Charge of Federal Policing within "K" Division, to "review and report on the procedures and appropriateness of the criminal and internal investigation concerning K and ... Adams". In addition to the media coverage respecting the extent of the investigation into the matter, "K" Division was concerned about the conflict of opinions which arose between McLeod and Crown Counsel concerning the appropriateness of criminal charges, and the practice of having criminal investigations of members' actions processed by the Administration and Personnel Division rather than the Criminal Division. The latter concern was related to the fact that McLeod, who was instructed to conduct the internal Code of Conduct investigation, had also been given the responsibility of liaising with Crown Counsel concerning the criminal investigation. One difficulty this presented was that McLeod did not want to see Adams charged criminally based upon weak evidence, and have those charges dismissed. McLeod perceived that such an occurrence might weaken the discipline case against Adams.

5. EVIDENCE

Inspector A.D. MacIntyre

Inspector A.D. MacIntyre of Edmonton G.I.S., who conducted the statutory investigation, testified as outlined above. He stated as well that he was concentrating on a possible bribery or obstruction charge rather than on sexual assault. He agreed with McLeod that there was no evidence of criminality against K sufficient to support a charge. He eventually agreed with the Crown's opinion that Adams should be criminally charged with sexual assault, when the "power and authority" issue was brought to his attention by Chief Crown Prosecutor Greaves.

Superintendent A.A. Spaans

Superintendent Spaans' report, dated March 17, 1993, was received in evidence. Although his mandate was to review the "procedures and appropriateness" of the statutory and internal investigation, Superintendent Spaans referred in his report to section 37 of the RCMP Act, which provides standards for members. In his evidence. Superintendent Spaans said he was not engaged in any kind of internal Code of Conduct investigation relating to McLeod's conduct. This Panel accepts that Superintendent Spaans' report was intended to be an administrative review of practice and procedure and it was never intended that any personal consequences would come to Inspector MacIntyre or to McLeod as a result of the review. As a result of the review, Superintendent J.P. Curley, Officer in Charge, Administration and Personnel of "K" Division, on April 8, 1993 issued instructions resulting in the following addition to Chapter XII.4 of the Administration Manual under Code of Conduct Investigations:

F.4.i. During Code of Conduct investigations, involving an allegation of sexual assault no inquiries are to be conducted concerning the past sexual history of the victim/complainant unless authorized by OIC Adm. Services or OIC Adm. & Pers.

Prior to the conclusion of the hearing, this provision F.4.i. was replaced with a more restrictive policy, which will be referred to later in this report.

Inspector Spaans prefaced his report in part as follows:

While the action of Constable Adams provided the foundation for the newspaper article, it was the Force's seemingly intransigent relations with the prosecutorial authorities and exhaustive inquiries into the victim's sexual reputation, which furnished a controversy.

The Force's concern was triggered by the public controversy. For the purpose of this public interest complaint, the significant conclusion of Superintendent Spaans' report is that the inquiry by McLeod, during the internal investigation into the sexual reputation of K, was unnecessary and a serious invasion of her privacy.

Superintendent Spaans concluded that there was "no logical link between the conduct of the member or the reputation of the Force and the sexual reputation of Ms. K." He wrote that the questions respecting sexual reputation, dress and drinking habits "were simply irrelevant and should not have been asked". In the conclusion of his report, Superintendent Spaans states that McLeod's inquiries were "out of touch with today's reality in dealing with victims of sexual assault". He wrote that McLeod did not act out of malice or animosity towards anyone, and that McLeod did not in any way condone the conduct of Adams and had no sympathy for Adams' predicament.

The Spaans report contains recommendations with respect to the future division of responsibility between Administration and Personnel Division and Criminal Investigation Division regarding statutory public complaints against members, as well as dealing with future conflicts between Crown Counsel and investigating officers. Those recommendations are not of particular significance for this Panel Hearing.

Superintendent Spaans stated that McLeod was an experienced officer and a "credit to the Force." At the time of the incident, he stated, the "K" Division policy did not contain any particular guidance as to the investigation of past character or sexual history in Code of Conduct investigations. He testified as to how since this incident the Administration Manual respecting Code of Conduct investigations has been amended in the manner referred to previously in this report. He repeated the opinions given in his report that K's conduct in the incident was not relevant to the culpability of Adams. He was of the opinion that in this case, her sexual history was totally irrelevant both to the question of whether Adams' conduct was contrary to the Code of Conduct, and to the question of the disciplinary sentence to be imposed upon Adams. In his opinion, any previous relationship which may have existed between K and Adams was not relevant. He said there was no relevance in the questions relating to whether K became sexually aggressive under the influence of alcohol, or whether K initiated the sexual encounter. Although he found a "perception of bias" against K in the McLeod report, he stated that in his opinion McLeod himself was not biased.

Chief Superintendent Wayne Eaton

Chief Superintendent Wayne Eaton was Chief Superintendent of "K" Division at the time of the incident. He accepted all of the findings and recommendations of the Spaans report, and directed the Officer in Charge of Administration and Personnel as follows:

1. To issue a letter of apology to K.

2. To deliver a copy of the Spaans report to Internal Affairs, Ottawa.

3. That Superintendent Spaans identify contradictions, deficiencies and/or ambiguities in national policy respecting internal investigations with a view to recommending changes, if necessary.

4. That Superintendent Spaans draft Division policy according to his recommendations.

5. That action be taken to preclude recurrence of inappropriate investigation, such as that done in respect of K's character.

With respect to recommendation #4 above, the interim policy cited earlier respecting future Code of Conduct investigations was issued by Superintendent J.F. Curley, Officer in Charge of Administration and Personnel, "K" Division, on April 8, 1993.

During code of conduct investigation involving an allegation of sexual assault, no inquiries are to be conducted concerning the past sexual history of the complainant unless specific written authorization is obtained from the O.I.C. Administrative Services or the O.I.C. Administration and Personnel.

This directive was included in the Administration Manual for Code of Conduct investigations (Part IV) as paragraph F.4.i., cited earlier with only the removal of the word "written" in referring to the required authorization.

Chief Superintendent Eaton stated that the use of the phrase "sexual assault" contained in the new policy was a poor choice of words and should be replaced with such wording as "sexual impropriety". This policy has been revised.

Chief Superintendent Eaton stated that the intent of the Spaans inquiry was not to investigate the conduct of McLeod in any way. The intent was to look at policy. He stated that the policy giving direction in matters involving investigation of past sexual history in Code of Conduct inquiries was deficient at the time of the McLeod investigation. Chief Superintendent Eaton assumed responsibility for this deficiency and stated he did not "fault McLeod" in the manner in which he carried out his investigation. He did agree with Superintendent Spaans that the extent of McLeod's investigation into K's character was inappropriate.

Superintendent Stephen Duncan

Superintendent Stephen Duncan was Officer in Charge of Administration Services, "K" Division, at the time of the incident. Although he was not the immediate officer to whom McLeod reported, he discussed generally with McLeod during the investigation the need to seek out information as to whether there had ever been any similar complaints or allegations regarding Adams, and also as to whether Adams and K had known each other prior to the incident.

Superintendent Duncan said that his concern was to gather sufficient information concerning K's background that it could be used in negating any defence put forward by Adams at the anticipated Code of Conduct proceeding. He declined to comment on the extent to which McLeod inquired into K's past sexual conduct. In general, Superintendent Duncan was of the opinion that some such investigation could potentially be relevant to the issue of whether K consented and whether, in fact, she initiated the sexual contact. He stated that the investigating officer's job is generally to gather all information which could potentially be relevant notwithstanding that some or all of such information in the final analysis could be determined to be not useful and/or irrelevant. Superintendent Duncan testified that he and McLeod initially resisted the efforts of Crown Counsel to charge Adams, and possibly K, with a number of offences. They feared that if Adams were acquitted, this would prejudice the Force's ability to have him dealt with severely at the Code of Conduct inquiry. Superintendent Duncan intended to use section 37 under the Canada Evidence Act at the Code of Conduct hearing for the purpose of keeping the statements regarding K's past sexual history confidential. In this way, he believed K's right to privacy would be protected. He was of the opinion that her privacy would have been compromised by the leak of the MacIntyre and McLeod inquiries to the newspapers and by this public interest complaint hearing conducted by the PCC. Superintendent Duncan was asked by the Chair of the Panel as to whether asking friends and co-workers about her sexual history would be in itself "an invasion of privacy". He responded that it would not be an invasion of privacy if collected for the eventual consideration of the Court or the Code of Conduct tribunal. It would be up to the discipline adjudication tribunal to determine the ultimate relevancy or use to be made of the information collected.

Superintendent Joseph Peter Curley

Superintendent Joseph Peter Curley testified that the type of questioning of K's character could potentially have been relevant in determining the credibility of both K and Adams. By "credibility" he was referring to the reasons that this sexual act would have occurred within five minutes of the initial meeting of the parties and whether their statements that the favour was not given as a "bribe" could be believed. The extent of the investigation, he said, is a matter for the officer's discretion. He gave the opinion that he would not have gone as far into K's character as did McLeod, and that "in hindsight" it was not a good exercise in discretion to investigate to that extent. He said that Adams gave a plausible reason for the incident, and ultimately that reason had to be examined in order to determine whether Adams was being truthful. Superintendent Curley had great praise for McLeod's ability as an investigator and mentioned that McLeod had commenced an internal "grievance" against the manner in which the Spaans report characterized his investigation.

Other witnesses

All witnesses were called by Commission Counsel Pierre-Y. Delage, other than Stephen Koval and retired former detachment NCO Gary Lindstrom, who were called by Mr. Evans on behalf of McLeod.

Stephen Koval

Mr. Koval was General Counsel to the Criminal Justice Division of the Alberta Department of Justice. He was consulted by McLeod with regard to the extent to which under the circumstances he should investigate K's sexual history; he advised McLeod that the sexual history could be relevant. Mr. Koval opined that it is the police investigator's responsibility to gather evidence either validating or discrediting the statements of witnesses and to present all such evidence to the Crown in order that the prosecutor "not go into the case disarmed". He disagreed with Chief Crown Prosecutor Darwin Greaves' position of "resiling" from the nature of the McLeod inquiries.

Staff Sergeant Gary Lindstrom

Former Staff Sergeant Lindstrom stated that the MacIntyre statutory investigation contained a glaring error; Adams' statement was to the effect that after initially taking K into the police vehicle he dropped her at the fitness club, where she could not gain entry because it was locked. Adams had said she then returned to the police vehicle, after which time the sexual encounter occurred. Lindstrom was of the opinion that this would have negated any inference of a sexual favour having been traded for immunity for impaired driving prosecution. It was therefore necessary, he said, to investigate further to determine if Adams' statement was an accurate representation of the facts as they occurred. In Lindstrom's view, if Adams was telling the truth about K's aggressive behaviour, it could possibly have a bearing on his culpability before the internal adjudication board.

6. THE ISSUE

The statutory obligation imposed by section 45.43 of the RCMP Act, on this Commission panel is to inquire into the "conduct" of the member "in the performance of any duty or function" under the Act. The complaint is that McLeod "may have abused his authority" when investigating and reporting about aspects of K's sexual history. This is the "conduct" at issue.

Ms. Ritzen, on behalf of the appropriate officer under ss. 2(3) of the Act, urged the panel to interpret "abuse of authority" within the confines of section 37 as meaning acting contrary either to law, policy, or order of superiors, or for an improper purpose. Mr. Delage, Commission Counsel, submitted that the Commission has a broader mandate to inquire into complaints of conduct in the performance of duty, regardless of whether or not the conduct could be an abuse of authority.

This panel is of the view that although the Commission's mandate is broad, the member and the appropriate officer would be entitled to rely upon the wording of the complaint in their preparations to answer the allegation. As outlined, counsel for the RCMP had earlier objected to the specificity of the complaint.

In view, however, of this panel's findings the question of the wording of the complaint is not significant.

7. THE PANEL'S OPINION

With respect to the extent of McLeod's investigation of K's character, the public perception may have been twofold:

1. that the RCMP investigated the conduct and character of the "complainant" rather than their own member; and,

2. that the evidence of K's sexual character was elicited for the purpose of mitigating the case against the member, Adams.

There is no evidence that either of these occurred. The evidence is to the contrary. McLeod and others testified that they believed Adams' conduct to have been deplorable and disgraceful and that he should be dismissed from the Force. McLeod said that during his investigation he formed the belief that Adams had "sold his badge" for sex. McLeod spent more time investigating Adams than he did K. This panel is of the opinion that the sexual character investigation was entered into and conducted in good faith and without bias.

The question remains, however, that if Adams' conduct was so obviously disgraceful, what then was the purpose of investigating K's sexual character? To paraphrase the words of Superintendent Spaans, was there any "logical link between the conduct of Adams or the reputation of the Force on one hand. and the sexual reputation of K on the other?"

K never made a "complaint" in this matter. Several days after the incident occurred, while she was under the influence of alcohol, she told RCMP Constable Gopp of the incident. This occurred November 3, 1991, while Constable Gopp was ticketing K for a liquor control offence. The circumstances or reasons why she told Constable Gopp of the incident at this time are unclear. When the constable requested further details she declined to provide any information. She was equally reluctant to provide any information to Corporal Halwas on November 27, 1991 when the RCMP began a more formal inquiry into the matter. K acknowledged to Corporal Halwas that the sexual act occurred, but told him none of the details of having been an impaired driving suspect. The transcript of the statement by Corporal Halwas states that she was stalked or had an occasion to talk with Adams. The Panel is not convinced that "stalked" is the appropriate transcription of Corporal Halwas' statement; there is no other evidence of K being "stalked" by Adams.

Further investigation revealed that K had given conflicting information to various individuals with respect to the sexual encounter. Her first utterances shortly after the incident to Darlene McGeough and K's boyfriend, Mr. Kondratski, were to the effect that she was afraid of being charged with impaired driving and that Adams required her or "forced her" to perform the sexual act in lieu of an impaired charge. In her statement of November 27, 1991 to Staff Sergeant Lindstrom, she indicated no use of force and stated that it was "a mutual thing".

In her statement to Inspector MacIntyre, K admitted that she "could have got an impaired charge" because of her impaired state. She denied remembering any conversation about sexual services in lieu of an impaired charge. She said at one point in the interview with Inspector MacIntyre that Adams "made" her perform the act, while later she denied the use of any violence and said that she "could have been like, maybe making moves on him".

There were other obvious discrepancies in the information she provided to various individuals, including information concerning her prior contact or acquaintance with Adams. She advised Inspector MacIntyre that she used to live next door to him when she was about nine years old and had not seen him since. Further investigation revealed that K had, in fact, been arrested by Adams in 1990 for trespassing with friends in a public swimming pool.

In view of these and other credibility issues, McLeod reviewed the results of the criminal investigation by Inspector MacIntyre, including all of the statements, and took another statement on his internal investigation from Adams. McLeod concluded that it was necessary to further investigate the character and backgrounds of both Adams and K.

McLeod viewed his role as that of fact-finder for the prosecutor and adjudication board, which would eventually deal with a disciplinary complaint expected to be laid against Adams. He gave extensive testimony before this Panel to the effect that in his view the investigation of K's sexual history, particularly while drinking alcohol, could be relevant to Adams' degree of culpability in his apparent disgraceful conduct. In particular, he believed that any information as to K's sexual history which would either refute or verify Adams' statement that K was the aggressor would or could be highly relevant to the adjudication board. Additionally, McLeod gave the following reasons for his inquiries into K's sexual character:

1. He was apprehensive that the statement of Adams taken on the internal investigation could be declared inadmissible, leaving only the evidence of K: K's evidence was, as noted earlier, somewhat contradictory in certain respects.

2. He believed it was necessary to obtain evidence respecting her sexual history in order that the prosecutor could be completely prepared for the internal disciplinary hearing, and be able to anticipate potential defences or mitigating arguments on behalf of Adams.

McLeod testified that when he first commenced the internal investigation he had no preconceived notion as to K's sexual character. He was only aware that her statements were somewhat contradictory in the important aspects of force, undue influence and prior contact with Adams. During the course of his inquiries as to Adams' previous character, McLeod was referred by Corporal Nash and others from the Leduc Detachment to the Cosmos Restaurant, this being K's place of employment at that time. McLeod testified that he had no preconceived notion as to what he would learn there about K's character. It is implicit from all of the circumstances that McLeod would have been aware that the information would be of a sexual nature.

McLeod took statements from employees and two owners of Cosmos Restaurant. It is these statements that form the basis of this public interest complaint by the Commission Chairman. The statements were taped and would have been preceded by a general discussion with the witness as to the nature of the inquiry. McLeod generally led the witnesses into the discussion of K's character by asking about their knowledge of her characteristics when she was under the influence of intoxicants. In the case of the witnesses F and Y, this general question with respect to K's character when drinking elicited comments such as "when she is drinking, she is very very loose... and it doesn't take much on the part of the...male...to get her interested". The same general question regarding use of intoxicants elicited from the witness Y the statement that "she would come on very strong to members of the opposite sex...I found her to be very promiscuous".

McLeod asked F the following:

have you seen her...grab...a male person by the...genitals?

are there any of your staff...that maybe have had a sexual encounter...with her?

Is there any suggestion...that her state was relative to whether she had been drinking or not drinking when they [others] had oral sex with her...?

From the interview with Y, McLeod learned of a sexual encounter between T and K occurring some months after the encounter with Adams. McLeod interviewed T and obtained information to the effect that K, when drinking, aggressively pursued T, took him to her home and initiated oral sex.

The witness W, also a Cosmos employee, stated that under the influence of alcohol she was "more friendly" but "nothing to the extreme where she is trying to pick up guys or anything." McLeod testified that his experience as a professional investigator led him to believe that W was not being completely forthcoming and followed up with the following question:

When she's drinking she is more friendly than when she is not. Can you just expand on that like...in terms of her aggressiveness? Is she more aggressive towards people, male gender in particular?

He also asked W if he had ever had sexual involvement with K.

McLeod interviewed the two owners of Cosmos, both of whom declined to give written or taped statements. They stated that K, when off the job and drinking in the restaurant, "became very aggressive and promiscuous."

McLeod arranged for the taking of a statement from witness Y, in another province, who stated that K's reputation around town was "not good" and that when he knew her at Leduc he found her to be very sexually aggressive.

McLeod also took a statement from Kondratski, K's boyfriend at the time of the Adams encounter. He asked Kondratski as follows:

... my purpose here is not to commit a character assignation [sic].. but to gain a more clear or defined picture of K as a sober and alert person and K, when she has been drinking.

Kondratski volunteered that she was "very aggressive as far as sexuality" when drinking. McLeod asked if Kondratski could "elaborate in terms of, if given a state you saw her on the 27th of October, how would she relate in terms of interacting with male persons?" McLeod asked about K's nickname of "Do me" and inquired as to whether this was intended as describing a person that is "more promiscuous". McLeod had in fact previously learned of this alleged nickname from the witness Y.

With each of these witnesses, McLeod also attempted to obtain information with respect to Adams' character and the potential for his previous involvement with K. He asked Kondratski and F as to whether K discussed, with either of them, the Adams encounter. He asked whether he had any information on Adams' character or the way he conducted his duties. He asked W whether Adams "walked through the bar conducting his police duties". He asked the Cosmos employee Y if he had any personal knowledge of Adams and whether he had been "hanging around the bar while on duty just checking out ... action ... or female population".

McLeod asked Cosmos employee C as to K's character when consuming alcohol, to which C responded that she got very promiscuous. He also asked her whether she knew anything about Adams' background and how he conducted himself off duty. Witness T was asked if he knew Adams and if he ever observed him "patrolling the bars" or "ever kinda target a girl that might be susceptible to some kind of sexual encounter." McLeod apparently instructed an out of province detachment to undertake similar questioning with Y with respect to Adams' conduct.

Were these inquiries reasonably justified in all the circumstances? If so, did the nature and extent of the inquiries exceed what would be necessary in order to obtain potentially relevant information?

K had given conflicting statements to several people, not just on collateral issues, but on the primary issues involving potentially criminal acts. Moments after the sexual encounter, K spontaneously told Darlene McGeough in the washroom of the fitness centre that a "police officer made her give him a blow job". McGeough told McLeod that this was her "impression" of the words used but that she could not recall the precise words. McGeough told McLeod that K was "upset to a certain point but not in real state of affairs."

K originally told Inspector MacIntyre in the statutory investigation that "like, he made me" have oral sex. Inspector MacIntyre asked if she was forced and she answered "I don't think so, I don't remember". Later in the interview she stated she might have been; "making moves on him". She denied that the sex was offered or solicited in return for no charges of impaired driving. She had, however, shortly after the encounter with Adams, told her boyfriend, Kondratski, (according to Kondratski's statement to MacIntyre) that Adams had requested the favour in return for no charges of impaired driving and that K was "really upset", and was "really sad and embarrassed...and kind of feeling ashamed".

At this point in the investigation, McLeod was faced with not only conflicting statements from K as to whether she was forced or coerced, but a situation where the first statement made to McGeough moments after the incident might have been the most credible of all in terms of what actually occurred in the police vehicle. An experienced investigator would recognize this possibility. McLeod would have cause to suspect that the subsequent statements to Inspector MacIntyre, Staff Sergeant Lindstrom and others may have been made after sober second thought by K as to the potential legal consequences to her of having engaged in this activity under circumstances in which she was an impaired driving suspect.

The obvious course of conduct here would have been to interview K herself. McLeod, however, was advised by Chief Crown Prosecutor Darwin Greaves not to reinterview K; after consultation with his superiors he decided not to do so.

This Panel accepts the evidence of Staff Sergeant McLeod as to the need for and the reason that he entered into the investigation of the sexual history and character of K. We are satisfied that McLeod's purposes were bona fide; he genuinely and in our opinion, on a reasonable basis believed that the course of conduct and the inquiries which he made were necessary. We are satisfied that McLeod made his investigation solely for the purposes of searching out the most probable scenario as to what occurred in the patrol cruiser on the night of October 27,1991. McLeod was in search of the elusive "truth", seeking to establish and to make available to the Code of Conduct hearing that evidence which would be court-worthy and the closest available to the actual events which occurred between Constable Adams and K.

This Panel is of the opinion that the sexual history investigation of K in the particular circumstances of this case was justified. The degree of Adams' culpability depended upon which of K's statements more accurately reflected the truth. Adams stated that K aggressively pursued him, that there was no element of coercion and no talk of sex in return for a favour. It was necessary to determine whether Adams was truthful. If K's general character was other than sexually aggressive while drinking, Adams' statement that K was the aggressor might have been untrue. K might have been coerced by Adams' authority and Adams' culpability would clearly be greater. Since McLeod was effectively prevented from interviewing K, there was no way of determining K's sexual characteristics, i.e. whether she was sexually aggressive while drinking, except to ask people who knew her. If she possessed a sexually aggressive personality, this might, to some extent, corroborate Adams' version of events and be relevant to the discipline adjudication. If she did not possess such a character, it could cast serious doubt on Adams' statement that no force or coercion in the nature of use of authority, was employed by him to obtain sex.

McLeod did not enter upon this character investigation lightly or with a cavalier attitude. He consulted with Crown Prosecutor Koval before talking to the Cosmos employees. He testified that he was in a position of gathering information which could be potentially relevant to the anticipated adjudication hearing. This Panel accepts that evidence.

While this Panel is of the opinion that McLeod exercised proper discretion, it is noteworthy that "K" Division, at the relevant time, had no written policy by which he could be guided.

By the time of the conclusion of the hearing in March 1995, "K" Division had adopted the policy reproduced in Schedule "A". This Panel is of the opinion that the latest policy represents a very substantial positive improvement which will suitably serve to guide Force members in this very difficult and sensitive area.

We would add that, in our view, if the new policy had been in force at the time of the McLeod investigation, a decision under that new policy to investigate K's sexual history would have been a proper one, in the particular circumstances of this case.

The issue of the propriety of the sexual history investigation was clearly a contentious one, as evidenced by the honest differences of opinion between the various members of the Force and the two senior Crown Counsel, Greaves and Koval. This Panel views the report of Superintendent Spaans as an indication of these honest differences of opinion. The Spaans report was requested after the public disclosure in the media of the sexual history investigation and Chief Crown Prosecutor Greaves' adverse reaction to the investigation. Until the media disclosures occurred, McLeod's inquiry apparently did not attract any particular critical attention within the Force. This is so notwithstanding the fact that through regular Force channels, particulars of the criminal and internal investigations would have gone through the division to National Headquarters.

With respect to some of the specific conclusions of the Spaans report, this Panel finds as follows:

1. Darlene McGeough, the individual to whom K first spoke of the incident moments afterward, was not linked, as suggested by Superintendent Spaans, in a "tenuous way" to the matter in question. Her statement was important in referring to the first spontaneous utterance by K about the matter within minutes of the encounter. McGeough told McLeod that K had said the "police officer made her give him a blow job" (emphasis added).

2. Spaans concluded that the results of the character inquiries "could in no way assist an adjudicator in making a determination regarding the member's conduct or influence the severity of the sanction imposed". We are of the opinion that whether or not Adams initiated the contact and used his authority could have had an impact upon his culpability before an adjudicator. Adams' statement that K was the aggressor had to be verified or discredited. K's statements were contradictory in that regard. When the Crown prevented McLeod from interviewing K, the only source of information concerning her characteristics, when drinking or otherwise, became the evidence of others.

3. Superintendent Spaans concluded that McLeod's report showed a perception of bias. There were conflicts and discrepancies in K's statements as outlined. Having regard to all circumstances, this Panel is of the opinion that McLeod showed no bias against K in the manner of questioning. For example, Superintendent Spaans was somewhat critical of McLeod for inferring that K was being "deceptive" in saying she had not seen Adams since having lived next door to him as a child of nine. As Adams' statement and Force records indicated, she was arrested by Adams in 1990 for trespassing at night in a public swimming pool. Adams said that they were members of the same aquatic club.

4. Superintendent Spaans concluded that McLeod's inquiries were unnecessary and "out of touch with today's reality in dealing with victims of sexual assault". At the time that Spaans authored the report, charges of sexual assault against Adams had been dismissed by the Provincial Court at the preliminary inquiry stage. In his evidence to the Panel, he denied having predicated his report on the assumption that K was the victim of a sexual assault, except in "the broad context" of being a victim of a police officer's misconduct.

Notwithstanding our disagreement with some of Superintendent Spaans' conclusions regarding this particular investigation, this Panel is of the opinion that the general philosophy put forward by Superintendent Spaans is sound. The principles upon which Seaboyer [R v. Seaboyer, [1991] 2 S.C.R., 577] is based should apply not only to the general admissibility of evidence but to the investigator's exercise of discretion as to whether a sexual history inquiry should be undertaken at all. While McLeod was correct in his report when he said that the "rules of evidence are distinctly different when prosecuting a member under the RCMP Act than a criminal prosecution", Spaans is also correct when he is of the opinion that the discretion to investigate such matters should be exercised sparingly and rarely. There must be very compelling reasons before the rights of a citizen to a private life can be subjected to investigation for the purposes of an RCMP Code of Conduct investigation.

The Force's recognition of this right is attempted to be met in the new policy of "K" Division respecting sexual history inquiries in matters involving internal, non-statutory investigations.

Although this Panel is of the view that McLeod did not, in these circumstances, exercise his discretion improperly, we emphasize that it is only in the rarest of circumstances that such an investigation would be justified.

We make three points concerning the investigation of sexual history or character:

First, the Seaboyer and Criminal Code section 276 principles are of some relevance to the question of whether in any given circumstances sexual history should be investigated. It should, however, be recognized that in a Part IV discipline proceeding the same principles of admissibility may not be applied. In a court of competent jurisdiction trying an offence included in section 276, the rights of a complainant are "front and centre" for consideration. In an internal Part IV hearing, there is no guiding statutory provision or common law evidentiary principle on the questions of admissibility of a sexual history type of evidence. No party is cast in the role of protector of "the complainant's rights". This fact should not be misinterpreted by members as meaning that because there is no limit on the potential relevance of such information, there is also no limit on the circumstances in which it should be obtained. For example, the past history of an individual complainant would not per se be relevant just because there is a disagreement between the member and the complainant as to whether a sexual act was consensual or forced. whether by use of authority or otherwise. What sets the present circumstances apart is that K gave conflicting statements regarding matters probative to the issue, including the use of force or coercion, and an incorrect statement regarding her prior acquaintance with Adams. The matter was further complicated by the fact that McLeod was prevented from attempting to resolve the discrepancies directly with K. For all McLeod knew upon undertaking the investigation, K may have been more truthful when she originally said she was forced. If it were not for these circumstances any information as to K's past sexual behaviour would be entirely irrelevant and Superintendent Spaans' opinion that the inquiries were "improper", since they were unnecessary and a serious invasion of privacy, would have been correct.

Second, it was the line of questioning itself which was invasive of privacy. The media publication was simply one result of the investigation which had unfortunate consequences for K. Any police investigation can be invasive of privacy. The question of conduct here was whether McLeod used proper discretion. McLeod was aware of the sensitive nature of his inquiry. He sought Crown Prosecutor Koval's advice before the investigation. He raised the issue himself in his written report. McLeod believed in good faith that the results of his inquiry would be kept private. He acknowledged that the mere asking of the question to a member of the public is invasive of privacy.

Third, the information should not be gathered simply to arm the internal complaints prosecutor with facts upon which to prepare for or deal with any potential defence evidence on collateral issues relating to sexual character. Without circumstances such as those that existed in this case, the sexual history of an individual involved in a sexual encounter with a member should be of no relevance whatsoever to the conduct or culpability of the member. It would be the circumstances of the encounter which would matter, not the sexual history of the non-member involved.

8. RECOMMENDATIONS

This Panel recommends as follows:

1. That a national Force policy similar to that adopted by "K" Division in Schedule "A" be developed with respect to future inquiries into past sexual character in Code of Conduct investigations.

2. That an educational program be developed for internal investigators to ensure that the policy is fully understood. It must be recognized that it is the investigation into sexual character itself which can be unnecessarily invasive of privacy. It should not be sufficient for the investigator to assume that the inquiry will not fall into the public domain and that therefore the investigation will do no harm.

ORDER PURSUANT TO S.45.45(13)

The Panel was requested to make an order pursuant to section 45.45(13) of the RCMP Act authorizing payment of the travel and living expenses incurred by Mr. Evans as counsel for S/Sergeant McLeod. The order authorizing payment was made by the panel on May 11, 1995.

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SCHEDULE "A"

Excerpt from "K" Division Aids Administration Manual XII.4. Part IV RCMP Act Code of Conduct Investigations

F.4.i.
During Code of Conduct investigations, involving an allegation of sexual impropriety no inquiries are to be conducted concerning the past sexual history of the victim/complainant unless authorized by OIC Adm. Services or OIC Adm. & Pers.

F.4.i.1.
It should only be rare situations in which sexual history inquiries are considered necessary. In exercising his/her discretion as to whether to authorize sexual history inquiries or not, the APO/ASO may consider a number of factors, including the following:

F.4.i.1.1
Why such information is relevant to the matters in issue in the particular case.

F.4.i. 1.2
The identity of the individuals who are to be interviewed.

F.4.i.1.3
Why interview those individuals (i.e. how can that particular individual assist the investigation).

F.4.i. 1.4
What are the ramifications of not interviewing those individuals, especially if an accused member advances a plausible reason for his conduct.

F.4.i. 1.5
The extent of the proposed questioning and time frames involved.