Protected A

2020 CAD 14

ROYAL CANADIAN MOUNTED POLICE

in the matter of

a conduct hearing pursuant to the

Royal Canadian Mounted Police Act, RSC, 1985, c R-10

Between:

Commanding Officer, “F” Division

Conduct Authority

and

Corporal Luay Fadil Toma

Regimental Number 60680

Subject Member

Conduct Board Decision – Allegation Phase John A. McKinlay April 8, 2020 Conduct Board Decision – Conduct Measures Phase Josée Thibault August 18, 2020

Mr. Denys Morel and Staff Sergeant Chantal Le Dû, for the Conduct Authority

Staff Sergeant Peter Hearty, for the Subject Member

Table of contents

SUMMARY 3

INTRODUCTION 4

ALLEGATION PHASE [Conduct Board McKinlay] 4

Allegations 6

Findings on the allegations 8

Standard of proof 9

Necessary elements under section 7.1 9

Observations concerning the particulars 11

Summary of findings 16

Conclusion on the merit of the Allegations 17

CONDUCT MEASURES [Conduct Board Thibault] 18

Publication ban 18

Credibility of witnesses 18

Analysis 19

Range of conduct measures 20

Aggravating factors 24

Mitigating factors 25

Parity of sanction 30

Decision on conduct measures 31

CONCLUSION 32

 

SUMMARY

The Notice of Conduct Hearing contained three allegations of domestic violence by Corporal Toma against his spouse, which is contrary to section 7.1 of the RCMP Code of Conduct. Allegation 1 refers to an assault on May 20, 2019; Allegation 2 pertains to a punch to Ms. C.T.’s arm in January 2019; Allegation 3 involves five occasions where Corporal Toma shoved his spouse over a prolonged period of approximately 12 months.

Corporal Toma admitted to all allegations and particulars contained in the Notice of Conduct Hearing. Given the nature of the three established allegations of domestic violence, Corporal Toma was ordered to resign from the Force within 14 days, in default of which he would be dismissed.

INTRODUCTION

[1] On July 30, 2019, the Designated Officer appointed Mr. John McKinlay as the Conduct Board (Conduct Board McKinlay) to adjudicate the Allegation Phase of Corporal (Cpl.) Toma’s matter. On October 25, 2019, he rendered his oral decision in which he found all three allegations of the Notice of Conduct Hearing (NOCH) to be established on a balance of probabilities. The written decision was rendered by Conduct Board McKinlay on April 8, 2020.

[2] On April 9, 2020, following the retirement of Conduct Board McKinlay, I, Conduct Board Thibault, was then appointed to adjudicate the Conduct Measures Phase of these proceedings.

[3] This decision includes the written decision rendered by Conduct Board McKinlay on the merit of the allegations. It also expands upon the oral decision I rendered on the Conduct Measures Phase of these proceedings on June 19, 2020.

ALLEGATION PHASE [Conduct Board McKinlay]

[4] On May 24, 2019, the Conduct Authority signed a Notice to the Designated Officer, in which she requested the initiation of a conduct hearing in relation to this matter.

[5] On July 26, 2019, the Acting Commanding Officer, “F” Division (Conduct Authority), requested a Conduct Hearing be initiated concerning allegations of misconduct by Corporal (Cpl.) Luay Toma.

[6] On July 30, 2019, the Designated Officer appointed Mr. John McKinlay as Conduct Board [Conduct Board McKinlay] to adjudicate Cpl. Toma’s matter.

[7] On August 6, 2019, the Conduct Authority signed the Notice of Conduct Hearing (NOCH). The NOCH contains three allegations that Cpl. Toma assaulted C.T. contrary to section 7.1 of the Code of Conduct (behaviour likely to discredit the Force). Allegation 1 refers to an assault on May 20, 2019; Allegation 2 pertains to a punch to C.T.’s arm (while being driven by Cpl. Toma) in January 2019; and Allegation 3 primarily involves five occasions where C.T. was shoved over a period of approximately 12 months commencing in April 2018.

[8] C.T. provided information about an assault on May 20, 2019, in a KGB [1] recorded interview taken on May 23, 2019. She provided a further statement to an internal investigator on June 20, 2019. C.T. also submitted photographs capturing aspects of her physical appearance after certain altercations with Cpl. Toma. Cpl. Toma made numerous admissions in the voluntary, Charter-warned [2] statement he provided on May 27, 2019, and in a further internal investigation statement on June 26, 2019.

[9] On May 30, 2019, Cpl. Toma was charged with one count of assault under section 266 of the Criminal Code, RSC, 1985, c C-46.

[10] On August 9, 2019, Cpl. Toma was served with the NOCH and the package of related investigative materials. Conduct Board McKinlay received same on August 13, 2019.

[11] On August 14, 2019, Conduct Board McKinlay granted the Subject Member Representative a filing extension to September 17, 2019, to submit Cpl. Toma’s responses under subsection 15(3) and section 18 of the Commissioner’s Standing Orders (Conduct), SOR/2014-291 [CSO (Conduct)].

[12] On September 17, 2019, consistent with the admissions made by Cpl. Toma in his statements to investigators, Conduct Board McKinlay received his responses under subsection 15(3) of the CSO (Conduct), admitting to all three allegations and all of the particulars contained in the NOCH.

[13] At the pre-hearing conference of August 2, 2019, via teleconference, the parties agreed that Conduct Board McKinlay could decide on the merit of the allegations based on the materials filed before him. The Conduct Authority Representative and the Subject Member Representative would rely on written submissions concerning the establishment of the allegations. They would further specifically address the information concerning the punch to C.T.’s left arm referenced in Allegation 2, particular 4, and the five incidents in which Cpl. Toma shoved C.T. out of the way, referenced in Allegation 3, particular 3.

[14] An oral decision on the merit of the allegations was delivered by transcribed teleconference on Friday, October 25, 2019, with phone access available to any member of the public. The written decision was rendered by Conduct Board McKinlay on April 8, 2020. He established the three allegations of the NOCH on a balance of probabilities.

Allegations

[15] As noted, there are three allegations before the Conduct Board and they read as follows:

Allegation 1

On or about May 20, 2019, at or near Wollaston Lake, in the Province of Saskatchewan, Corporal […] Toma engaged in discreditable conduct, contrary to section 7.1 of the Code of Conduct of the Royal Canadian Mounted Police.

Particulars of the contravention

1. At all material times you were a member of the Royal Canadian Mounted Police (“RCMP”) posted to Wollaston Lake Detachment in “F” Division.

2. You were in a relationship with [C.T.] since October, 2016 and married in April, 2018.

3. On or about May 20, 2019, in the evening, you were off-duty and in the living room of your residence sitting at the computer. [C.T.] was disagreeing with you about something and put her hands on your shoulders to rub them.

4. You suddenly got angry, got up and raised both your fists in her face saying you wanted to “beat the shit out of her” or words to that effect. You said “I want to hurt you” or words to that effect. You pushed her towards the window and she fell down to the floor. You kicked her at least twice, once to the head and once to the torso.

5. You grabbed the back of her hair and held her down while telling her “are you going to stop, fucking stop”. While grabbing her hair, you forced your fingers into her head and applied pressure point techniques.

6. You told [C.T.] to get her “stuff” and get “the hell out”. You dragged her from the living room to the bedroom by the hair and spat at her. In order to get her to leave the residence, you grabbed her from the bed and moved her to the floor; you applied pressure point techniques and choked her with both hands. You were choking her by dragging her towards the kitchen while grabbing her by the hoodie. [C.T.] was screaming and crying, asking you to stop. She scratched your arm to defend herself. You spat at her.

7. Your assault on [C.T.] caused her bruising and pain. She was scared, feared for her safety and called a friend who helped her leave the residence.

8. Your conduct towards [C.T.] was discreditable.

Allegation 2:

On or between January 9 and January 14, 2019, at or near Vaughan, in the Province of Ontario, Corporal […] Toma engaged in discreditable conduct, contrary to section 7.1 of the Code of Conduct of the Royal Canadian Mounted Police.

Particulars of the contravention

1. At all material times you were a member of the Royal Canadian Mounted Police (“RCMP”) posted to Wollaston Lake Detachment in “F” Division.

2. You were in a relationship with [C.T.] since October, 2016 and married in April, 2018.

3. At the time of the incident, you were driving back from a casino located north of Vaughan.

4. [C.T.] was in thee passenger seat of the vehicle. You had a verbal argument with her regarding her alcohol consumption. At some point, you told her “to fucking stop”, or words to that effect, and punched her in the left arm. [C.T.] was in pain and started crying. Your punch left a bruise on her arm for about three weeks.

5. Your conduct towards [C.T.] was discreditable.

Allegation 3:

On or between April 1, 2018 and May 19, 2019, at or near Wollaston Lake, in the Province of Saskatchewan, Corporal […] Toma engaged in discreditable conduct, contrary to section 7.1 of the Code of Conduct of the Royal Canadian Mounted Police.

Particulars of the contravention

1. At all material times you were a member of the Royal Canadian Mounted Police (“RCMP”) posted to Wollaston Lake Detachment in “F” Division.

2. You were in a relationship with [C.T.] since October, 2016 and married in April, 2018.

3. You were verbally and physically abusive towards [C.T.]. On a least five occasions, you shoved [C.T.] by pushing her out of your way.

4. In late February, 2019, upon your return home from ice fishing, you told [C.T.] that you had invited some members over for dinner. It took her by surprise as she only had an hour left to figure out what to make for dinner. You got angry at her reaction, insulted her and threw a chair which landed on her foot causing her pain.

5. On or about May 18, 2019, at approximately 6 p.m., you had an argument with [C.T.]. While telling her to “fuck off” or words to that effect, you pushed her. As a result, she tripped over the couch, fell into the wall and hit her head.

6. Your conduct towards [C.T.] was discreditable.

[Sic throughout]

Findings on the allegations

[16] Conduct Board McKinlay delivered an oral decision on the merit of the allegations on October 25, 2019. Before this oral decision, each allegation was read to Cpl. Toma, but not the supporting particulars, and he confirmed that he admitted to each of the allegations.

[17] Before giving his oral decision on the allegations, Conduct Board McKinlay advised the parties that it was an abbreviated oral decision that would be expanded upon and that he reserved the opportunity to clarify and explain his reasons and findings in greater detail in the final written decision. These reasons constitute Conduct Board McKinlay’s final written decision [dated April 8, 2020] on the establishment of the allegations involving Cpl. Toma.

Standard of proof

[18] I [3] confirm that the standard of proof to be applied in this matter is the balance of probabilities, as articulated by the Supreme Court of Canada in F.H. v McDougall, [2008] 3 SCR 41, at paragraph 49. This is sometimes referred to as the “more likely than not” standard of proof.

Necessary elements under section 7.1

[19] A well-established analysis has been cited by various conduct boards in dealing with allegations under section 7.1 of the Code of Conduct. This analysis appears in the RCMP External Review Committee (ERC) recommendations C-2015-001 (C-008), dated February 22, 2016, at paragraphs 92 and 93:

[92] Section 7 of the Code of Conduct requires that “[m]embers behave in a manner that is not likely to discredit the Force”. Section 7 differs from its predecessor provision, found in subsection 39(1) of the prior Code of Conduct. Subsection 39(1) required that members not engage in any disgraceful or disorderly act or conduct that could bring discredit on the Force. The ERC and the Commissioner have stated that the test under subsection 39(1) asked whether a reasonable person with knowledge of all relevant circumstances, including the realities of policing in general and the RCMP in particular, would be of the opinion that the conduct was a) disgraceful, and b) sufficiently related to the employment situation so as to warrant discipline against the member (ERC 2900-08-006 (D-123), para. 125; ERC 2400-09-002 (D-121), Commissioner, para. 100).

[93] Section 7 of the Code of Conduct does not import the requirement of disgraceful or disorderly conduct in order to discredit the Force. However, the Force’s Code of Conduct Annotated Version (2014) largely adopts the test under the prior Code of Conduct for discreditable conduct under the new section 7, noting that “discreditable behaviour is based on a test that considers how the reasonable person in society, with knowledge of all relevant circumstances, including the realities of policing in general and the RCMP in particular, would view the behaviour” (p. 21). The language used in the Code of Conduct Annotated Version (2014) is consistent with the tests established in other police jurisdictions to establish that misconduct is “likely” to discredit a police force. As pointed out in P. Ceyssens, Legal Aspects of Policing, Vol 2 (Toronto: Earlscourt, 2002, pp. 6-17, 6-18), where statutory language governing discreditable conduct addresses acting in a manner “likely” to discredit the reputation of a police force, actual discredit need not be established. Rather, the extent of the potential damage to the reputation and image of the service should the action become public knowledge is the measure used to assess the misconduct. In conducting this assessment, the conduct must be considered against the reasonable expectations of the community.

[20] I confirm that I applied this analysis in coming to my decision.

[21] Simply put, the test for whether a member has contravened section 7.1 is whether a reasonable person with knowledge of the facts, including the realities of policing in general, and the RCMP in particular, would find the conduct to discredit or be likely to discredit the Force.

[22] In addition, for a contravention to be established, past conduct boards have confirmed that the discreditable conduct must be sufficiently related to the duties and functions of members of the RCMP to warrant disciplinary action by the RCMP.

[23] In terms of the allegations, we are dealing with off-duty conduct. However, section 1.1 of the Code of Conduct provides: “This Code applies to every member of the Force and establishes responsibilities and the standard of conduct for members, on and off duty, in and outside Canada.”

[24] The identity of Cpl. Toma is admitted in his written submission and his oral admissions, as well as by the materials in the record.

[25] The next necessary aspect is for me to determine which particulars in the NOCH are established on a balance of probabilities. With the possible exception of Ms. B.K.’s observations when she arrived at the dwelling on or about May 20, 2019, there were only two eyewitnesses to the misconduct alleged in the three allegations: Cpl. Toma and C.T.

[26] While Cpl. Toma provided statements, ultimately, he responded by formally admitting to all of the particulars for the three allegations and to the three allegations themselves.

[27] By making these admissions, Cpl. Toma is not contesting the particulars and I find that the Conduct Authority is relieved of any obligation to seek to adduce further evidence to establish their case.

[28] In other words, by admitting to all of the particulars, Cpl. Toma is admitting to the facts set out in the particulars.

Observations concerning the particulars

[29] This brings me to three general observations concerning the particulars in any notice alleging contraventions of the Code of Conduct.

[30] When a particular addresses a certain feature of a member’s impugned conduct, it is expected that the particular will accurately reflect the investigative materials relied upon to establish that particular. In other words, when a conduct board is determining whether a record only comprised of filed materials establishes a particular, it is reasonable to expect that there should be information in the record that establishes that particular on a balance of probabilities.

[31] Some particulars may not particularize an act or acts, or omission or omissions of the member, that singly or combined with other particulars constitute discreditable conduct.

[32] To date, there has been reference to particulars perhaps serving a narrative function. Nevertheless, for a specific incident identified under an allegation, there must be sufficient established particulars to actually establish a contravention of section 7.1 of the Code of Conduct.

[33] A third observation relates to a subject member’s responses under subsection 15(3) of the CSO (Conduct), when a member admits to contravening the Code of Conduct and, without any further commentary or explanation, admits to all of the particulars provided for the allegation.

[34] In law, I am bound to apply the balance of probabilities standard to the information and evidence in the record as well as the established legal test for a contravention of section 7.1, and not to simply treat a subject member’s admission of both the allegations and the particulars as requiring me to find the allegations established.

[35] However, speaking generally, it is reasonable to expect that if a member admits to an allegation and to all of its supporting particulars, a conduct board should be able to determine that the alleged contravention is proven on a balance of probabilities.

Allegation 1

[36] With respect to particular 1, the identity of Cpl. Toma is not in dispute. It is established by C.T.’s and Cpl. Toma’s statements and it is admitted to by Cpl. Toma. With respect to particular 2, this is also not in dispute. (For the same reasons, particulars 1 and 2 are deemed established for Allegations 2 and 3. I will not revisit these particulars.)

[37] I find particular 3 is established on the basis of C.T.’s and Cpl. Toma’s statements as well as Cpl. Toma’s admissions. I find nothing about C.T.’s action of placing her hands on Cpl. Toma’s shoulders, or a single side of his shoulders, was threatening or intended to be provocative. I accept C.T.’s characterization of this shoulder touching as something of a comforting gesture, not a gesture intended to antagonize Cpl. Toma.

[38] With respect to particular 4, Cpl. Toma admitted to this particular without further commentary in his subsection 15(3) response.

[39] I find all of the most important elements contained in particular 4 to be established on the basis of C.T.’s account of her attack by Cpl. Toma. This includes the fist raising by Cpl. Toma, the pushing of C.T. causing her to fall to the floor, and the (at least) two kicks delivered by Cpl. Toma that C.T. received, one to the head and one to the torso.

[40] To further consider particular 4, it also references two utterances by Cpl. Toma directed to C.T. These are “beat the shit out of her” and “I want to hurt you”. While it is not clear from Cpl. Toma’s statement whether there was only one such utterance in which he expressed a wish to beat or hurt C.T., the particular does include the qualifier “or words to that effect”.

[41] In light of Cpl. Toma’s admission and on the basis of C.T.’s statements in the record, I find the making of each of these utterances, or words to that effect for each utterance, to be established.

[42] Continuing with respect to particular 5, I find the acts identified to be established. This includes Cpl. Toma holding C.T. down, grabbing C.T.’s hair, forcing his fingers into her head and applying pressure point techniques. However, I will make some specific findings as certain problematic aspects arise in my review of the third attributed utterance.

[43] I find that Cpl. Toma did utter “Are you going to stop, fucking stop.” But to my mind, this utterance only serves to place Cpl. Toma’s other admitted actions in time. Applying the reasonable person test under section 7.1 of the Code of Conduct, including the sufficient nexus required to the subject member’s duties and functions, I find that this utterance does not, in itself, constitute discreditable conduct. Perhaps most relevant, this utterance was not a threat.

[44] I find all of particular 6 established on a balance of probabilities. This includes Cpl. Toma dragging C.T. from the living room to the bedroom by the hair, spitting on her on at least one occasion, choking her by placing his hands around her throat and by his pulling on her hoodie to drag her towards the kitchen. These acts by Cpl. Toma were performed in order to get C.T. to leave the residence. I further find that C.T. was screaming and crying, asking Cpl. Toma to stop, and that she scratched his arm trying to defend herself. But again, with respect to Cpl. Toma telling C.T. to “get her stuff” and “get the hell out”, these are utterances that do not, in themselves, constitute discreditable conduct when one applies the reasonable person test. Again, these utterances were not a threat.

[45] With respect to particular 7, based on the statements of C.T. and Ms. B.K. and the relevant photographs, I find Cpl. Toma’s assault on C.T. caused her bruising and pain, clearly scared her, and caused her to fear for her safety. It is apparent that Ms. B.K. attended after C.T. made a telephone call seeking help leaving the residence.

Allegation 2

[46] Particular 3 indicates that the punching incident took place at a time when the couple’s rental car was in motion and being driven by Cpl. Toma. If it is considered established that the vehicle was in motion, being driven by Cpl. Toma, then it is perhaps more plausible that the punch delivered to C.T’s left arm was a backhanded blow delivered by Cpl. Toma’s right hand.

[47] However, I am unable to determine on a balance of probabilities if the punch was delivered by Cpl. Toma hauling back and punching C.T., as she described, or if it was as he described it in his statement.

[48] I do note C.T. indicating that the vehicle was stationary in a parking lot. I further note the immediate pain experienced by C.T. and her being emotionally upset, together with the apparent bruising caused and captured in a photograph. These aspects suggest, but do not establish on a balance of probabilities, a direct punch rather than a backhanded motion.

[49] However, I do find that a significant punch was delivered by Cpl. Toma, as is asserted in particular 4. I confirm that all other aspects of particular 4 are found to be established.

Allegation 3

[50] I am mindful that the commission period for Allegation 3 is from April 1, 2018, to May 19, 2019. In particular 3, the first sentence reads: “You were verbally and physically abusive towards [C.T.].” To the extent that the record reflects verbal insults and other verbal abuse being directed by Cpl. Toma towards C.T., and vice versa, there is insufficient specificity in this sentence of particular 3.

[51] Moreover, it is my belief that verbal abuse between spouses (or intimate partners, given that the commission period extends before the marriage of Cpl. Toma and C.T.) does not automatically engage the section 7.1 aspect of a nexus to policing duties and functions.

[52] To be clear, it is the first sentence “You were verbally and physically abusive towards [C.T.]” that is under examination here. The Member Representative’s written submission specifies that Cpl. Toma’s admission to discreditable conduct under Allegation 3 relates to particulars 4 and 5, not the five incidents of shoving that Cpl. Toma nevertheless admits to under particular 3.

[53] Cpl. Toma admitted to shoving or pushing C.T. There was no argument advanced that these acts of shoving or pushing were some form of self-defence, or of such a minor nature that they should not attract disciplinary action under any form of de minimis principle, or that they were some form of a defence of property or protection of property against a trespasser.

[54] I find that these five incidents of Cpl. Toma shoving C.T. out of the way, or, as he described it, out of the room where he wished to occupy the room alone, to be established on a balance of probabilities. Furthermore, I find that these five incidents constitute discreditable behaviour as a stand-alone element of misconduct in Allegation 3.

[55] With respect to particular 4, Cpl. Toma admitted to it without comment. All of the elements identified in particular 4 are, in my view, established. However, I maintain the same point of view that I expressed concerning other utterances admitted to by Cpl. Toma. While proven factually, I do not find the elements “[you] got angry at her reaction” and “[you] insulted her” to be discreditable conduct.

[56] I also note that, in C.T.’s statement concerning particular 4, she does not indicate that Cpl. Toma threw a chair at her, only that he threw a chair that landed on her foot, causing her pain. At least one issue or question that arises is whether getting angry, insulting your spouse and throwing a chair that unintentionally hits your spouse is nevertheless discreditable conduct.

[57] In the present circumstances, having reviewed the entire record, I am prepared to treat Cpl. Toma’s admission of particular 4, together with the other information provided by C.T., as sufficient to find that Cpl. Toma was, at a minimum, reckless in throwing a chair, such that it struck C.T.’s foot.

[58] Therefore, this episode of reckless, violent behaviour involving the thrown chair constitutes a discrete episode of discreditable conduct.

[59] For particular 5, I find it proven in its entirety. Again, applying the requisite test, having an argument with C.T. is not discreditable conduct in contravention of section 7.1. Nor is telling C.T. to “fuck off” as a distinct utterance.

[60] However, telling C.T. to “fuck off”, or words to that effect, and then forcefully pushing her backward, causing her to trip on a couch behind her and strike her head on the wall behind the couch, contravenes section 7.1. In fact, even without C.T.’s loss of balance and collision with the wall, I find that the forceful push constitutes discreditable conduct.

Summary of findings

[61] For Allegation 1, I find discreditable conduct to be established, based on the established particulars:

• particular 4;
• particular 5, except for the utterance “are you going to stop, fucking stop”;
• particular 6, except for the two utterances “get her stuff” and “get the hell out”; and,
• particular 7.

[62] Therefore, Allegation 1 is established on this basis.

[63] For Allegation 2, I find discreditable conduct to be established, based on the following established particulars:

• particular 3; and,
• particular 4, except for the utterance “to fucking stop”.

[64] Thus, Allegation 2 is established on this basis.

[65] For Allegation 3, I find discreditable conduct to be established, based on the following established particulars:

• particular 3, except for the reference to “You were verbally […] abusive towards [C.T.]”;
• particular 4 in its entirety, having determined that, at a minimum, Cpl. Toma was reckless when he threw the chair that then struck C.T.’s foot; and
• particular 5, except for having an argument and telling C.T. to “fuck off”.

[66] The deliberate, double-handed forceful push that Cpl. Toma applied to C.T. under particular 5 constitutes an episode of discreditable conduct distinct from the discreditable episode of chair throwing under particular 4. Therefore, Allegation 3 is established on this basis.

Conclusion on the merit of the Allegations

[67] I find that Cpl. Toma contravened section 7.1 of the Code of Conduct as his actions in relation to C.T. involved, on more than one occasion, physically assaultive and recklessly violent behaviour. Applying the reasonable person test, these established episodes of misconduct bring discredit on the RCMP. Therefore, I find Allegations 1, 2 and 3 to be established.

		April 8, 2020
John McKinlay RCMP Conduct Board Allegation Phase

 

CONDUCT MEASURES [Conduct Board Thibault]

[68] Following the retirement of Conduct Board McKinlay, I was appointed to adjudicate the Conduct Measures Phase of these proceedings. Since the Allegations were established, the Royal Canadian Mounted Police Act, RSC, 1985, c R-10 [RCMP Act], and the Conduct Measures Guide (2014) require that I now impose “a fair and just measure that is commensurate to the gravity of the contravention, the degree of blameworthiness of the member, and the presence of mitigating and aggravating factors”. This part of the written decision clarifies and expands upon the oral decision that I rendered on June 19, 2020.

Publication ban

[69] Upon agreement by the parties and pursuant to the RCMP Act, I ordered a publication ban prohibiting the broadcast, dissemination and publishing of any information contained in the report of Dr. C.B., dated December 29, 2019. The ban also includes any documents provided to Dr. C.B., as identified on page 3 of her report, to the extent that such information arises during the public hearing phase. This publication ban also includes any oral witness testimony and oral submissions by the parties’ representatives in relation Dr. C.B.’s report and documents.

Credibility of witnesses

[70] At the conduct hearing, I heard the testimony of Dr. C.B., Ms. C.T., and Cpl. Toma. Dr. C.B. was identified as an expert witness qualified in forensic psychiatry and the assessment, diagnosis, causes, treatments and prognosis of psychiatric disorders. She was asked by RCMP Health Services to provide an Independent Medical Examination of Cpl. Toma regarding his diagnosis and fitness for duty, in addition to factors that contributed to the May 2019 domestic violence incident for which he was criminally charged.

[71] I found that Dr. C.B.’s report was detailed and clear. [...]. During her testimony, Dr. C.B. was forthright, credible and her evidence was reliable. […].

[72] With regard to C.T., I found that she was an articulate and forthcoming witness who was candid about her marital struggles with Cpl. Toma, which became unmanageable while living in Wollaston Lake. In fact, during her testimony, C.T. was knowledgeable about the cycle of violence. [4] She admitted to being a victim of violence in the incidents dating from April 2018 to May 2019 described in the established Allegations. She stated that what Cpl. Toma did to her was horrible and she did not wish it on anyone. [5] She affirmed that domestic violence is not to be tolerated and that is why she reported it. She also explained that, at one point in the relationship, she came to the hard realization that she could not fix Cpl. Toma, whom she felt was struggling with depression and anxiety. He needed therapy. I found that her testimony was credible and her evidence reliable.

[73] As for Cpl. Toma, he spoke on his own behalf and apologized for his actions and expressed remorse. I found him to be credible and sincere. For the most part, I also found his evidence to be reliable. I will explain this further in the analysis that follows.

Analysis

[74] The ERC has established a three-step process for the imposition of conduct measures. First, the conduct board must consider the appropriate range of conduct measures applicable to the misconduct at issue. Second, it must consider the aggravating and mitigating factors. Third, the conduct board must impose conduct measures, which accurately and fairly reflect the gravity of the misconduct at issue, keeping in mind the principle of parity of sanction.

Range of conduct measures

[75] In their submissions to the Conduct Board, the parties have provided a detailed analysis of the appropriate range of conduct measures applicable to the various elements found in Cpl. Toma’s misconduct. The Conduct Authority Representative requested that the Conduct Board either dismiss Cpl. Toma or direct him to resign from the Force within 14 days from the date of the oral decision. If the Board does not order the dismissal, then the Conduct Authority is asking for a demotion of Cpl. Toma, an illegibility for promotion for the next three years, and for the member to abide by any treatments recommended by the Health Services Officer.

[76] On the other hand, the Subject Member Representative felt that dismissal was too severe when compared to other matters of domestic violence; to be in parity with similar previously decided cases, he proposed that the Conduct Board consider a demotion.

[77] In support of his position, the Conduct Authority Representative relied on the Conduct Measures Guide (2014), which provides three ranges of sanctions for domestic violence. The mitigated range is for minor pushing and shoving, which does not lead to a criminal conviction. The normal range is for isolated incidents involving relatively minor use of force. The aggravated range includes situations where the subject member employs unprovoked gratuitous violence, assault causing injury, with prolonged episodes of domestic violence or violence towards a vulnerable person. The recommended sanction for this range is from the forfeiture of 15 days’ pay to dismissal.

[78] The Conduct Authority Representative argued that Cpl. Toma’s misconduct fell squarely within the aggravated range. To support his position, the Conduct Authority Representative also relied on the 2012 Wlodasczak [6] decision, which cites the 2001 Rendell decision from the Federal Court of Canada. [7] In Rendell, the Commissioner of the RCMP at the time made a strong statement against domestic violence when he said at paragraph 5 of the decision:

We have in the RCMP, a zero tolerance prosecution policy in domestic violence investigations which is supported by Crown prosecutors across the country. We must send a strong message that this kind of behaviour will not be tolerated, particularly when perpetrated by members of the RCMP. I have previously articulated my expectations with respect to the organization in this regard. Domestic violence is a scourge in our society. As one of the organizations responsible for effective responses against it. We would be remiss if there was any impression left that we deal with it internally in any way but with the utmost severity.

[79] As indicated by the Conduct Authority Representative, the Federal Court recognizes that this is an appropriate principle, when Justice Rouleau opines as follows:

[…] The RCMP’s zero[-]tolerance policy in domestic violence matters generally, and with respect to its members specifically, make it altogether reasonable for public expectations to have been one of the consideration[s] taken into account by the Commissioner. […]

[80] Finally, the Conduct Authority Representative referred to the 2019 Dhillon [8] decision in which the subject member was dismissed under the new conduct process. It was submitted that the conduct board applied the same zero-tolerance principle enunciated in the Rendall decision and the current National Policy on Violence and Abuse in Relationships, when he stated the following at paragraph 189:

Violence against women continues to be a serious problem in Canada despite significant efforts of legislatures, law enforcement, including the RCMP and the judiciary in recent decades, to prevent it and respond to it.

[81] In his submissions, the Subject Member Representative explained that, in 23 years, there have only been two cases of domestic violence in which the members were dismissed. Those were the Rendell and Dhillon decisions submitted by the Conduct Authority Representative. The reason for the lack of cases is that members are not dismissed for such misconduct. In Rendell, not only did the adjudication board determine that the subject member was not credible, it also established four separate and distinct assaults, as well as the threat of the use of a loaded service weapon. As for the Dhillon decision, the conduct board also found that the subject member was not credible. This is a stark contrast to the instance in this matter in which the Conduct Authority Representative agreed that Cpl. Toma came across as genuine in his remorse.

[82] In rebuttal, the Conduct Authority Representative affirmed that they had difficulty with the the Member Representative’s argument that in 23 years, only two members were dismissed for domestic violence in these proceedings. The Conduct Authority Representative explained that, although there may be some merit to the argument, it does not represent an accurate assessment of all RCMP cases of domestic violence. In fact, some cases are not reported by the victims for Code of Conduct investigation or, sometimes, the subject member resigns prior to the matter being heard by a conduct board. In other cases, the victims refuse to testify or cooperate with the Code of Conduct investigation, which can lead to joint submissions on conduct measures by the parties.

[83] The Subject Member Representative also provided the Conduct Board with a newspaper article and some emails in relation to the work conditions in isolated communities. I attributed very little weight to the documents as the testimony of C.T. and Cpl. Toma were sufficient to outline their living conditions while posted in Fond du Lac and Wollaston Lake. I also recognized in my analysis of Cpl. Toma’s rehabilitation efforts, the hardship associated with policing in northern communities.

[84] In terms of case law, the Subject Member Representative relied on two cases from the legacy regime in which the members were not dismissed. In the Hennelly [9] decision, the subject member choked and threw his wife down the stairs on two separate occasions a month apart. As for the Turcotte [10] decision, there were three incidents of domestic violence over the course of a year.

[85] As submitted by the Conduct Authority Representative, these two decisions stem from a joint submission following the Commanding Officer’s support and for which essential progress reports were provided to the adjudication board. Another important element that must be considered in the Hennelly decision is the existence of a last chance agreement with the Commanding Officer in which the dismissal form could be executed at any time if the subject member did not completely abstain from alcohol. Finally, in the Turcotte decision, the adjudication board agreed with RCMP Bulletin AM-2208, dated July 2001, which stated that domestic violence will be taken with the utmost seriousness.

[86] The Subject Member Representative included, in his submissions, three decisions from the new conduct process in which subject members were not dismissed for domestic violence. The Wyant [11] decision not only included an allegation of domestic assault, it also included allegations of the purchase and importation of a small quantity of steroids for personal use. Nonetheless, the conduct board accepted the representatives’ joint proposal and imposed, as conduct measures, a financial penalty of 25 days, a forfeiture of 20 days of annual leave, a reprimand and a direction to attend counselling.

[87] In the El Aste [12] and Noël [13] decisions, the conduct boards also accepted joint submissions submitted by the parties on conduct measures. In the El Aste decision for example, in addition to two separate incidents of assault, the subject member’s spouse was confined to her bedroom and the washroom for three days since she could not be in the same room as her mother-in-law. Whenever she came out, the subject member would insult her and tell her to go back to her room.

[88] However, I must emphasize that, in the El Aste and Noël decisions, the conduct boards made it clear that, as a general rule, even if the court or administrative tribunals do not fully agree with a joint proposal, they will not reject it unless they can demonstrate that it is contrary to the public interest to do so. The public interest test has a very high threshold. Consequently, I find that the value of such decisions is limited when establishing the range of conduct measures. Joint submissions are usually based on the consideration of multiple factors and are the result of compromises negotiated by the parties, without the knowledge of the decision maker.

[89] Even if I am not bound by previous board decisions, they are still very helpful in establishing the range of conduct measures applicable to misconduct similar in nature while ensuring consistency and fairness to conduct matters. I find that the range of sanctions in this matter is between a forfeiture of 15 days’ pay and dismissal.

[90] I recognize that dismissal is the most serious punishment that can be imposed in a disciplinary decision. It is the mitigating factors which lessen the rigour of the sanction.

Aggravating factors

[91] I consider the following to be aggravating factors:

1. The emotional, psychological and physical harm to C.T. As Cpl. Toma’s spouse, she not feared for her safety, she also developed a form of post-traumatic stress disorder, took anxiety medication and had to seek professional counselling.
2. Cpl. Toma was criminally charged with assault and obtained a conditional discharge.
3. This was not an isolated incident. In fact, there were several physical assaultive, unprovoked, reckless, violent incidents over a prolonged period of 12 months. Also, the May 2019 domestic violence assault was an ongoing incident. Although Cpl. Toma could have stopped after the first altercation, he kept on coming back into the room to inflict more pain to C.T., who was screaming, crying and asking him to stop. As stated by Dr. C.B. at the hearing:

[…] Where the person has committed quite a serious physical assault, people don’t get to that out of the blue. You know, initially people may claim there’s been nothing like it at all before. That’s just not typically true. … Mr. Toma struggled with wanting control and that, you know, he would name call; he had pushed her on a few occasions. There’d been the incident in the vehicle in Ontario where he had struck her then, and then culminating in the [May 2019 assault]. […] [14]

4. Cpl. Toma was a supervisor and worked for two years in isolated communities, where domestic violence is a regular occurrence. He was aware of the impact of domestic violence on the victims as he testified that “he reviewed probably 100 files a month on domestic violence”. [15] In addition, Cpl. Toma told the Conduct Board that he wanted to be an advocate for stopping violence against women. When posted in Wollaston Lake, he did a little seminar with people on the Reserve where he explained “that we need to honour and respect our women and not make them feel guilty if they’re providing testimony against their husbands ‘cause they’re trying to fix their relationship”. [16] Considering this, I find that Cpl. Toma’s misconduct shows a lack of sincerity and a serious lapse of judgment, as members of the Force are expected to lead by example.

Mitigating factors

[92] I consider the following to be mitigating factors:

1. Cpl. Toma expressed sincere remorse for his actions and apologized to his spouse C.T., the RCMP and the Conduct Board.
2. He has accepted full responsibility for his conduct as evidenced by his admissions to the allegations and he recognizes that his actions were inappropriate. He cooperated fully with the criminal and Code of Conduct investigations.
3. Cpl. Toma’s performance evaluations are very positive and describe him as a member with excellent work ethics and great potential. However, he currently only has six years of service. Given that the egregious nature of his actions took place after only five years of service, I do not attribute too much weight to this factor.
4. He has no record of prior discipline.
5. The letters of reference indicated that he has the ongoing support of his peers, his previous supervisor and his spouse.
6. He contributes to the areas of youth and crime reduction by his involvement in the local Sea Cadets.
7. He completed a domestic violence course supervised by his probation officer. I note that this course was mandatory following the criminal charge of assault.

[93] As for the likelihood of recidivism, I have taken into consideration Dr. C.B.’s prognosis in her report and during her testimony […].

[94] As indicated by the Conduct Authority Representative, there is little evidence showing significant progress in Cpl. Toma’s rehabilitation. Except for the medication prescribed by his family doctor, in November 2019, Cpl. Toma does not seem to have a tangible long-term plan to help him obtain the guidance and the tools required to prevent him from repeating this reprehensible behaviour.

[95] With regard to Cpl. Toma’s rehabilitation progress, Dr. C.B. expressed clearly during her testimony at the hearing that he […]”. [17] In fact, what he did was not a minor offence, “he spat on her, chocked her and kicked her”. [18] […].

[96] I fully acknowledge, as indicated in C.T.’s and Cpl. Toma’s testimony, that barriers such as geography, the lack of medical and vacation leave approved by management, and the work conditions in Wollaston Lake, were significant factors prohibiting him from obtaining the appropriate healthcare services required. I am satisfied that Cpl. Toma did what he could with the resources available in the isolated community. For example, in March 2019, he was prescribed antidepressants from the local nurse practitioner. He also obtained informal counselling from a friend and social worker, as well as started therapy sessions with Dr. D.J., a psychologist, in July 2019. Since Cpl. Toma was located in Prince Albert, the distance made regular therapy sessions challenging. This was also conceded in the Conduct Authority Representative’s submissions.

[97] However, in August 2019, Cpl. Toma moved back to Swift Current where he obtained the support of his spouse and close friends, which he considered as family.

[98] In his submissions, the Subject Member Representative indicated that a total of nine medical practitioners were seen by Cpl. Toma from March 2019, when he lived in Wollaston Lake, until now (June 2020). I find that there is an important distinction to be made between the practitioners that provided Cpl. Toma with health assessments and treatment recommendations such as Dr. M.A., and Dr. F.B., two RCMP Health Services Officers, as well as Dr. C.B., who provided an independent psychiatric examination, and those who provided specific healthcare treatments.

[99] From August 2019 up to the hearing in June 2020, Cpl. Toma has sought the help of three healthcare providers. In August 2019, he completed his therapy sessions with Dr. D.J., his psychologist. On November 22, 2019, his family doctor prescribed him new antidepressants. In December 2019 and January 2020, Cpl. Toma received two therapy sessions from Ms. N.D., the public health therapist in Swift Current.

[100] When asked in cross-examination if he followed the strong recommendation Dr. M.A. made in November 2019 to make an appointment with a registered psychologist in Regina to provide ongoing support, Cpl. Toma replied that Dr. M.A. just made a recommendation and, I quote, “he didn’t say it as a sanction. He just said, Hey’ [Cpl. Toma], this is good for you. Go this path.”

[101] On December 12, 2019, just a few weeks following the November appointment, Dr. M.A. repeated his recommendation to Cpl. Toma to seek the help of a registered psychologist in Regina. In cross-examination, Cpl. Toma admitted that he did not follow up on it.

[102] As per the evidence, on December 13, 2019, Dr. D.J. requested six additional therapy sessions, which were approved by Dr. M.A., on December 16, 2019. During cross-examination, Cpl. Toma testified that “Dr. [M.A.] had phoned me about this back a while ago, about these eight sessions, and he said that they are readily accessible when you need them [emphasis added]”. [19]

[103] As for his two therapy sessions with Ms. N.D., which he completed in December 2019 and January 2020, Cpl. Toma testified as follows:

[…] Ms. N.D., is a doing a wonderful job and I’m happy seeing her because she’s so close. And there was no other social worker in Swift Current. The only one was in Regina. So financially for me, it made sense to stay at Swift Current and speak with [Ms. N.D.] and I had built a really good rapport with her. But in January, she said that “I no longer need to see you, because you have a good plan coming forward.” [20] […] [Emphasis added]

[104] When asked by the Conduct Authority Representative why he did not show her Dr. C.B.’s independent psychiatric examination report, he replied: “No, I didn’t feel comfortable. I only wanted certain people to have access to that. And I shared all the issues, I just didn’t want the fine detail in there. That’s all that was.” [21]

[105] I must say that the aforementioned responses provided by Cpl.Toma at the hearing cast some doubt on the reliability of his evidence. I find that, notwithstanding the fact that his employment is at risk, he still lacks self-motivation to proactively seek regular therapy to prevent a recurrence, to understand himself and to work on important issues identified in Dr. C.B.’s report.

[106] I acknowledge that Cpl. Toma also experienced some challenges in receiving the medical help required for his rehabilitation while living in Swift Current. For example, he has to drive approximately three hours one way to attend a one-hour therapy session in Regina; he received in August 2019 a Notice of Intent to Stoppage Pay and Allowances and he was unsure whether he still had medical benefits; he is still owed money by the RCMP for unclaimed medical expenses; [22] finally, the COVID-19 pandemic has changed how he can access healthcare services.

[107] Nonetheless, I cannot just simply accept the reasons provided by Cpl. Toma for not following up on clear recommendations made twice by Dr. M.A. as well as Dr. C.B. In my opinion, the message is clear: to rehabilitate, Cpl. Toma needs ongoing supportive therapy with an experienced therapist who will help him identify and work on his issues.

[108] In addition, Cpl. Toma is currently suspended with pay. He has no employment duties and responsibilities. Therefore, he should have sufficient time to dedicate to his health and well-being. As for his additional therapy sessions with Dr. D.J., Cpl. Toma also testified that the sessions were readily accessible when he needed them and that he could now participate via Skype or Zoom, thus eliminating the need to travel to Regina. Yet, there is no evidence that he scheduled a session.

[109] While I agree that the RCMP is responsible for providing access to resources for the well-being of its employees, the members must take the primary responsibility to seek the proper treatments to rehabilitate themselves. Even more so, when the resources are readily available.

[110] I find that Cpl. Toma has not demonstrated that he is fully committed to his own rehabilitation, which has resulted in him not doing everything that was asked on various occasions by RCMP Health Services. Consequently, I cannot conclude with confidence that the misconduct is currently under control and that it will not manifest itself in the future when faced with another stressful situation.

Parity of sanction

[111] When considering an appropriate sanction, a conduct board must take into account that the primary purpose of a disciplinary sanction under the RCMP Act and the CSO (Conduct) is not punitive. Pursuant to paragraph 36.2(e) of the RCMP Act, conduct measures must be proportionate to the nature and circumstances of the contravention of the Code of Conduct and, where appropriate, they must be educative and remedial. Nonetheless, the RCMP has a right and an obligation to prevent and deter a course of conduct that is not acceptable to its organizational objectives and goals as well as public expectations.

[112] In light of the psychiatric evidence provided by Dr. C.B., Cpl. Toma’s misconduct becomes much more understandable, but it does not fully exonerate him nor mean that it must be tolerated in the employment context. In fact, I find that the prolonged period of incidents described in the three established allegations illustrates a decline in Cpl. Toma’s personal standards of conduct. It also undermines the public confidence and trust, which the RCMP is entitled to place in its employees. They also show a breach of the RCMP core values, including compassion and respect.

[113] As clearly stated by the former Commissioner of the RCMP in the Rendell decision, which was upheld by the Federal Court of Appeal in 2001, when determining the appropriate sanction in cases where members commit acts of serious domestic violence:

[…] The number one issue for me as the steward of meeting public and organizational expectations in a fair way is to simply ask whether citizens would expect their police officers to remain police officers after being convicted criminally of assault. My question is directed to assaults in domestic situations in the kind of circumstances which the evidence established before the Board to have included a patterns of physical, emotional and psychological controlling behaviour on the part of the member. The answer is unequivocally “no” in my considered opinion.

I agree that rehabilitation is one of the hallmarks of our discipline process in dealing with Code of Conduct issues, but deterrence and a very strong commitment towards the elimination of domestic violence must also be a major consideration in determining the appropriate sanction. I believe that each case must be addressed on its own merit and both mitigating and aggravating factors must be given due consideration. […]

[Sic throughout; emphasis added]

[114] Even though this statement was made 19 years ago, the same standard still applies today in the RCMP. It is in fact reinforced in the current RCMP National Policy on Violence and Abuse in Relationship, [23] which states at section 2.1:

Violence/abuse in relationships investigations are a high priority and will be thoroughly investigated and handled expeditiously, maintaining the safety of those involved.

[115] This standard is also in line with societal values, which have shown clearly for decades that domestic violence is unacceptable and cannot be tolerated.

Decision on conduct measures

[116] Although some mitigating factors were accepted, I find that they are not strong enough to counter the seriousness of the misconduct such as to reduce the ultimate sanction that I feel necessary. Under these circumstances, given the position of responsibility and trust held by Cpl. Toma as a police officer sworn to enforce the law, I simply cannot justify retaining him as a member of the RCMP. That would not be in the best interests of the public or of the Force.

[117] As indicated by the Conduct Authority Representative, Cpl. Toma’s responsibility as a serving member was to prevent and investigate violence in relationships and not be a contributor to the problem. He was also a trained officer who applied pain compliance techniques on his spouse to gain control of the situation.

[118] I affirm the Conduct Authority Representative’s position that dismissal is a warranted, justified and reasonable sanction in this matter.

CONCLUSION

[119] Given the nature of the three established Allegations and pursuant to paragraph 45(4)(a) of the RCMP Act, I direct Cpl. Toma to resign from the Force. If he fails to do so within 14 days, then I direct his dismissal.

[120] Either party may appeal this decision by filing a statement of appeal with the Commissioner within 14 days of the service of this decision on Cpl. Toma, as set out in section 45.11 of the RCMP Act and section 22 of the Commissioner’s Standing Order (Grievances and Appeals), SOR/2014- 289.

		August 18, 2020
Josée Thibault RCMP Conduct Board Conduct Measures Phase		Date