Protected A

2020 CAD 21

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, “E” Division

(Conduct Authority)

and

Constable Justin Soares

Regimental Number 61782

(Subject Member)

Conduct Board Decision Christine Sakiris November 6, 2020

Staff Sergeant Jon Hart, Conduct Authority Representative

Mr. John Benkendorf, Subject Member Representative

TABLE OF CONTENTS

SUMMARY  3

INTRODUCTION  4

ALLEGATION  6

Decision on the Allegation  7

CONDUCT MEASURES  9

Submissions on Conduct Measures  10

Ms. X’s Representations  12

Joint proposal  12

Mitigating and aggravating factors  14

Decision on conduct measures  16

CONCLUSION  17

 

SUMMARY

The original Notice of Conduct Hearing, dated September 27, 2018, contained four allegations of discreditable conduct, contrary to section 7.1 of the RCMP Code of Conduct, arising out of Constable Soares’ interactions with Ms. X. On the morning of the hearing, the parties advised the Conduct Board of a new development and requested time to pursue resolution discussions. An Agreed Statement of Facts was accepted by the Conduct Board. The Conduct Authority Representative withdrew Allegations 1, 2 and 3. Constable Soares admitted to Allegation 4, as amended. The parties provided a joint submission on conduct measures. The Conduct Board accepted the joint submission with the inclusion of additional measures, as discussed with the parties.

The following conduct measures were imposed: (1) a financial penalty of 10 days’ pay, to be deducted from Constable Soares’ pay; (2) the forfeiture of 10 days’ annual leave; (3) the completion of the Agora online course “Consent Law and Common Sexual Assault Myths”, with proof of completion to be provided to the Conduct Authority within one year of the service date of this written decision; (4) a transfer to another work location, to be determined at the discretion of the Conduct Authority; and (5) a reprimand.

INTRODUCTION

[1]  The original Notice of Conduct Hearing, dated September 27, 2018, contained four allegations of contraventions of section 7.1 of the RCMP Code of Conduct, arising out of Constable Soares’ interactions with Ms. X. Constable Soares rented a basement suite in a family’s residence. Ms. X was the daughter of Constable Soares’ landlord, who lived in the upstairs area of the house with her parents. Allegations 1, 2 and 3 involved their interactions while Ms. X was under the age of 18. Allegation 4 involved their interactions after she turned 18 years of age.

[2]  Conduct Board MacMillan was appointed on October 17, 2018. Having indicated that he did not feel oral evidence was required in this matter, Conduct Board MacMillan requested detailed written submissions from Constable Soares. On October 14, 2019, Conduct Board MacMillan confirmed that these written submissions constituted Constable Soares’ response pursuant to subsection 15(3) of the Commissioner’s Standing Orders (Conduct), SOR/2014-291 [CSO (Conduct)]. Constable Soares denied all four allegations.

[3]  Conduct Board MacMillan retired in 2019. A Notice of Change of Conduct Board Appointment was issued on November 12, 2019, and I was appointed as the Conduct Board.

[4]  Following my initial review of the file, I requested that the Subject Member Representative submit Constable Soares’ response to the allegations in the form prescribed by subsection 15(3) of the CSO (Conduct). The Subject Member Representative provided the response, in the proper form, on March 6, 2020.

[5]  The first pre-hearing conference was held on March 12, 2020. I advised the parties that I had identified material conflicts in the evidence. As a result, I felt that this matter required a live hearing. I then heard submissions from the parties on any procedural fairness concerns they may have as a result of this change in the process. The parties were in favour of proceeding by way of a live hearing and the witness list was confirmed. A hearing date of June 8, 2020, was set. Due to limitations on travel during the Covid-19 pandemic, the hearing was rescheduled to September 1, 2020.

[6]  On September 1, 2020, the live hearing in this matter began. At the outset of the hearing, the parties advised that there had been a “new development” and they requested a recess to pursue resolution discussions.

[7]  When the hearing reconvened, I began by issuing a publication ban on any information that could identify Ms. X, pursuant to paragraph 45.1(7)(a) of the Royal Canadian Mounted Police Act, RSC, 1985, c R-10 [RCMP Act]. In accordance with that publication ban, any information that could identify the individual referred to as Ms. X may not be published, broadcast or transmitted in any way.

[8]  The parties advised that an agreement in principle had been reached, but they required the balance of the day to prepare an Agreed Statement of Facts. They also advised that they would likely prepare a joint submission on measures. I agreed to adjourn the proceeding for the day.

[9]  I received the parties’ Agreed Statement of Facts that evening. Upon my request, the Conduct Authority Representative confirmed that Ms. X was aware that a resolution was being negotiated and that she was aware of the general parameters of the proposed resolution. In anticipation of a joint submission on conduct measures, I directed that Ms. X. be offered the opportunity to provide representations on conduct measures. I advised that she may do so in writing or in person.

[10]  We reconvened on the morning of September 2, 2020, at which time the Conduct Authority Representative indicated that, while he anticipated that Ms. X. would be interested in providing her representations, he had not yet been able to reach her. I agreed to provide the Conduct Authority Representative with more time to do so.

[11]  In the interim, I sought clarification from the parties with respect to the proposed amendments to Allegation 4. I noted in particular that the original wording of Allegation 4 indicated that Constable Soares engaged in sexual activity with Ms. X without her consent and that it did not align with the Agreed Statement of Facts. The parties confirmed that Allegation 4, as amended, is to provide that Constable Soares behaved in a manner that is likely to discredit the Force in contravention of section 7.1 of the Code of Conduct. The applicable dates indicated are to be on or between May 1, 2017, and June 30, 2017, inclusively. Finally, the parties confirmed that the Agreed Statement of Facts would constitute the amended particulars for Allegation 4.

[12]  The Subject Member Representative sought clarification with respect to the usual parameters of a victim’s representations on conduct measures within the RCMP conduct process. He expressed concern that Ms. X’s representations would speak to matters beyond those addressed in the Agreed Statement of Facts. I confirmed that, in order for Ms. X to provide her representations, she will need to be provided with a copy of the Agreed Statement of Facts so that she fully understands what has been agreed to. Her representations would speak to the impact of Constable Soares’ conduct on her as set out in the Agreed Statement of Facts.

[13]  Moving on, I confirmed that Allegations 1, 2, and 3 were withdrawn. I read Allegation 4, as amended, into the record. Constable Soares admitted to Allegation 4, as amended. The parties opted to rely on the Agreed Statement of Facts as their submissions. I then provided my oral decision on Allegation 4 and found it, as amended, to be established. We then recessed to allow the parties to review Ms. X’s representations prior to my hearing their joint submissions on conduct measures. I provided my oral decision on conduct measures later that same day. This written decision incorporates and may expand or clarify upon these oral decisions.

ALLEGATION

[14]  I have before me one remaining Allegation. The amended Allegation and particulars are as follows (I have amended the text in order to give effect to the publication ban):

Allegation 4

On or [between] May 1, 2017 and June 30, 2017, both dates inclusive, at or near […], British Columbia, while off duty, Constable Soares behaved in a manner that is likely to discredit the Force, contrary to section 7.1 of the Code of Conduct of the Royal Canadian Mounted Police.

Particulars of Allegation 4:

1. At all material times, Constable Soares was a member of the Royal Canadian Mounted Police posted at […] in “E” Division, in the Province of British Columbia.

2. Sometime in May or June of 2017, Constable Soares engaged in consensual sexual activity with [Ms. X], who was then 18. Constable Soares was the downstairs tenant and [Ms. X] lived upstairs with her parents.

3. The sexual activity began when [Ms. X] entered Constable Soares’ basement suite and asked for a massage, and then progressed from sexual touching and oral sex in the living room area to sexual intercourse in the bedroom.

4. [Ms. X] engaged in various acts of participation, including raising her arms to allow Constable Soares to remove her shirt, walking down the hallway into his bedroom, laying down on his bed and moving her body to allow Constable Soares to remove her clothing. [Ms. X] was silent during the 10 minutes when sexual activity occurred, and never voiced any objections to what was happening.

5. During the 15 months that Constable Soares lived in the residence, he and [Ms. X] developed a close friendship, and each confided in and relied on the other in various ways. During this time, Constable Soares came to learn that [Ms. X] was involved in a high-risk lifestyle, and encouraged her to make better choices. She became reliant on him for rides home from parties that her parents didn’t know she was attending, and he became her trusted confident such that she told him things about her activities that nobody else, most notably her parents, knew.

6. Constable Soares acknowledges that as a member of the RCMP, he has agreed to abide by a higher standard of conduct, and that given the unique nature of their pre-existing relationship and her potential vulnerability, he should have obtained [Ms. X’s] explicit consent at each stage of the sexual activity – something he did not do.

[Sic throughout]

Decision on the Allegation

[15]  Section 7.1 of the RCMP Code of Conduct states: “Members behave in a manner that is not likely to discredit the Force.”

[16]  The test for “discreditable conduct” under section 7.1 of the Code of Conduct requires that the Conduct Authority establish the following four elements on a balance of probabilities:

1. the acts that constitute the alleged behaviour;
2. the identity of the member who is alleged to have committed these acts;
3. that the member’s behaviour is likely to discredit the Force; and
4. that the member’s actions are sufficiently related to their duties and functions as to provide the Force with a legitimate interest in disciplining them.

[17]  By virtue of Constable Soares’ admission to Allegation 4 and its particulars, as amended, I find that the first two elements of the test are met. I must now determine whether the third and fourth elements of the test are established.

[18]  With respect to Allegation 4, Constable Soares’ behaviour toward Ms. X, as set out in the particulars, is problematic on several fronts. As a police officer, Constable Soares must know the legal requirements of consent. In his interview with the municipal police department, Constable Soares indicated that he had some expertise in this area. However, his behaviour calls into question his understanding of this nuanced area of the law. While it was ultimately agreed that the sexual activity in this case was consensual, Constable Soares’ behaviour demonstrates a measure of recklessness in adhering to the legal requirements.

[19]  It is well established that police officers are held to a higher standard of behaviour, both on- and off-duty. This is reflective of the authority, trust and responsibility that society places on and in police officers. Constable Soares failed to live up to this standard. This failure is even more troubling in the context of the nature of his pre-existing relationship with Ms. X.

[20]  I find that a reasonable person in society, with knowledge of all the relevant circumstances, including the realities of policing in general, and the RCMP in particular, would view Constable Soares’ actions as likely to bring discredit to the Force.

[21]  Noting that Constable Soares’ actions fall within a behaviour that members of the Force respond to in their enforcement activities, I find that his actions may impair his ability or the public’s confidence in his ability to impartially perform the duties of a member of the RCMP. As such, I find that Constable Soares’ actions are sufficiently related to his duties and functions as to provide the Force with a legitimate interest in disciplining him.

[22]  Allegation 4, as amended, is accordingly established.

CONDUCT MEASURES

[23]  Having found that Allegation 4, as amended, is established, I am required, in accordance with subsection 45(4) of the RCMP Act and the RCMP Conduct Measures Guide, to 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”. 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, […] are educative and remedial rather than punitive”.

[24]  The Conduct Authority Representative and the Subject Member Representative provided a joint submission on conduct measures. They proposed the two following conduct measures: a financial penalty of 20 days’ pay and a reprimand. The Conduct Authority Representative subsequently clarified that the reference to 20 days’ pay is comprised of a financial penalty of 10 days’ pay and a forfeiture of 10 days of leave [1] .

[25]  I heard submissions from both parties. Constable Soares briefly addressed the Conduct Board. I have also considered Ms. X’s written representations.

Submissions on Conduct Measures

[26]  At the outset of his submission, the Conduct Authority Representative indicated that, while a transfer was not part of the jointly proposed measures, both parties agree that Constable Soares will be transferred. I expressed some concern as to why the transfer was not included as a conduct measure and a brief discussion ensued. The Subject Member Representative confirmed that a transfer would take place, but he requested that its terms be negotiated after the conclusion of the proceeding. He then acknowledged that if the Conduct Board felt it was required, it was open to me to impose a transfer. We then returned to the Conduct Authority Representative’s submission in support of the joint proposal.

[27]  The Conduct Authority Representative submitted that the appropriate range of measures is best identified by looking at the Conduct Measures Guide. He referred specifically to page 57 of the Conduct Measures Guide, where sexual misconduct, in the context of an “abuse of position”, is discussed. The Conduct Authority Representative noted the power imbalance in this matter, namely between a police officer and a civilian. He further submitted that the mitigated range identified a financial penalty of 20 to 30 days’ pay is appropriate on the facts of this case. He noted that while Ms. X was ready and willing to testify, the resolution has relieved her of that burden. This was the only mitigating factor identified.

[28]  The Conduct Authority Representative declined to outline any specific aggravating factors, requesting instead that the Conduct Board consider the serious nature of the misconduct and that I rely on the Agreed Statement of Facts, the principles respecting joint submissions as set out in Rault v Law Society of Saskatchewan, [2] as well as Ms. X’s written representations.

[29]  Constable Soares then addressed the Conduct Board. He apologized for his “lapse in judgment on the day in question and for any resulting potential loss in confidence in regards to the RCMP”. [3] He then went on to note that, while the last three years have been very difficult, he is glad that this matter is resolved and that Ms. X “was spared the ordeal of having to testify”. [4] He also assured the Conduct Board that he had learned from this experience and that he is confident he will not be “involved in a matter like this or allegations like this” [5] ever again.

[30]  The Subject Member Representative noted that Constable Soares has no prior discipline. He then submitted the following as mitigating factors:

1. While junior in service, Constable Soares has been a strong performer.
2. Constable Soares has the support of his corporal and supervisor, who have been in attendance throughout the proceeding.
3. Upon being advised of the nature of the allegations, Constable Soares immediately sought to cooperate with the criminal investigation. He met with officers of the municipal police force within one day of being contacted, without taking the time to consult with counsel.
4. Constable Soares compromised his own defence and his personal interest in vindicating himself, in order to spare Ms. X the burden of testifying and being cross- examined. In particular, he submits that it was upon seeing Ms. X at the hearing, and her apparent distress, that Constable Soares felt compelled to resolve this matter.

[31]  At the conclusion of their submissions, I asked whether any consideration had been given to a direction to undergo training, and what their respective positions were with respect to the need for training. The Subject Member Representative advised that Constable Soares had no objection to the imposition of a direction to undergo training.

[32]  The Subject Member Representative then revisited the issue of a transfer. He expressed concern that the ultimate location of the transfer would not be specified in the conduct measures. He indicated that circumstances in Constable Soares’ personal life make the location of the transfer a particular concern. The Conduct Authority Representative advised that the discussions are proceeding in good faith, taking into account all of the circumstances, but that the ultimate location for the transfer has not yet been determined.

[33]  I reminded the parties that I do not have the authority to direct that the transfer be restricted to a particular area within the Division. That decision falls within the Conduct Authority’s discretion. I then sought to confirm that Constable Soares is not opposed to the imposition of a transfer. Subject to his prior comments with respect to the determination of the location of the transfer, the Subject Member Representative confirmed that he is not.

Ms. X’s Representations

[34]  Ms. X’s representations were brief. I will reproduce them in full here, as they are integral to my ultimate findings with respect to conduct measures:

I have grown up around police officers and law enforcement my entire life, I have always respected and trusted people in that position to keep me safe and do what’s right, However, after this incident I feel hesitant to rely on anyone. I find myself fearful of calling the police for the risk that it might be [Constable Soares] who comes. I now have to live in fear of where I move in hopes to lower my risk of running into him. But that task is impossible. I can’t live my live in complete comfort that I will not have to face him again. The mental stress this experience has put on me is indescribable, I will never be the same person I was. I’ve grown to be okay with myself and my life now but it was not without pain.

[Sic throughout]

[35]  I note that the Record indicates that, on one occasion after June 30, 2017, Constable Soares was the responding officer to a call where Ms. X was present. She was not the subject of the call. However, it demonstrates that her concern of running into Constable Soares, in a professional capacity, is reasonable.

Joint proposal

[36]  The parties have jointly proposed the following conduct measures:

1. a financial penalty of 10 days (80 hours) to be deducted from Constable Soares’ pay;
2. a forfeiture of 10 days (80 hours) of annual leave;
3. a reprimand.

[37]  When presented with a joint submission on conduct measures, there are very narrow circumstances in which a conduct board may refuse to accept the proposed conduct measures.

[38]  The Supreme Court of Canada has recognized the value of settlement discussions, as well as the strong policy reasons that favour the promotion of certainty to the parties when a settlement is reached. [6] Generally speaking, courts or administrative tribunals will not override a settlement reached by the parties unless doing so would be against the public interest.

[39]  Therefore, I must determine whether accepting the joint proposal on conduct measures would be against the public interest. This is not a question of whether the conduct measures proposed are the same as what I would impose. Rather, the public interest test sets a much higher threshold.

[40]  In its Cook decision, the Supreme Court of Canada provided the following guidance, which is applicable to administrative tribunals:

[…] a joint submission should not be rejected lightly […] Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of [in this case, the conduct process] had broken down. [7]

[41]  In order to determine whether the proposed conduct measures are against the public interest, it is helpful to have some sense of what the possible measures may be. The Conduct Measures Guide is a useful reference in this regard. However, it is important to note that the Conduct Measures Guide is just that, a guide. It is not meant to be prescriptive.

[42]  Section 7.1 of the Code of Conduct contemplates a range of behaviours. I agree with the Conduct Authority Representative that Constable Soares’ actions are closely aligned to those described as sexual misconduct and, in particular, “an improper relationship”. The Conduct Measures Guide [8] provides for a general range from a forfeiture of 20 to 30 days all the way to dismissal. Given that the Agreed Statement of Facts provides that the sexual contact in question was consensual, I agree with the Conduct Authority Representative’s submission in support of the joint proposal that Constable Soares’ misconduct falls within the mitigated range of between 20 and 30 days’ financial penalty, alone or in combination with other measures. That said, I must now consider the mitigating and aggravating factors.

Mitigating and aggravating factors

[43]  The parties did not identify any specific aggravating factors other than the seriousness of the misconduct. However, as noted by the Conduct Authority Representative, Constable Soares’ actions involved a member of the public, who has been negatively affected by his actions. This is also an aggravating factor.

[44]  Of the mitigating factors presented, I have retained the four factors.

[45]  First, I acknowledge that Constable Soares cooperated, from the outset, with the investigators in the parallel criminal proceeding. However, I do not agree with the Subject Member Representative’s suggestion that Constable Soares’ willingness to give a statement without consulting legal counsel amplifies the significance of his cooperation as a mitigating factor.

[46]  Second, Constable Soares has no prior discipline. As noted by the Subject Member Representative, this can be viewed as an absence of an aggravating factor rather than a mitigating factor per se. In either case, it is worth highlighting.

[47]  Third, Constable Soares has the support of his corporal and supervisor, as evidenced by their attendance at the hearing.

[48]  I note that the Subject Member Representative made representations as to Constable Soares’ performance. As I was not provided with any of Constable Soares’ performance assessments and I did not hear any oral evidence on this point, I have no evidence on which I can find this to be the case.

[49]  Fourth, the Subject Member Representative submits that Constable Soares compromised his own defence and his personal interest in vindicating himself in order to spare Ms. X the burden of testifying and being cross-examined. In particular, he submits that it was upon seeing Ms. X at the hearing, and her apparent distress, that Constable Soares felt compelled to resolve this matter. He suggests that Constable Soares’ actions to resolve this matter were selfless and are in themselves a strong indicator of character, which should also be considered.

[50]  I agree that reaching a resolution has spared Ms. X from the stress of providing oral evidence in this matter. This is a noteworthy mitigating factor.

[51]  That said, I do not agree with the Subject Member Representative’s assertion that Constable Soares’ willingness to enter into resolution discussions demonstrates a particular strength of character. It is well within a subject member’s rights to seek to defend their interests. Doing so can never be held against a member. However, I do not find any compelling evidence that Constable Soares’ actions demonstrated a particular concern for Ms. X. In addressing the Conduct Board, Constable Soares did not express any regret for the impact of his actions on Ms. X, nor any appreciation for the stress this experience has had on her, as reflected in her written representations. His only comment about Ms. X was to note that she had been “spared the ordeal of having to testify”. [9] The bottom line is that a resolution is advantageous for both a subject member and a conduct authority. Most significant for Constable Soares is that he secured an outcome that did not result in his dismissal from the Force.

Decision on conduct measures

[52]  On a balance of all of these factors, I had reservations as to whether the proposed conduct measures satisfied the public interest. First, and foremost, Ms. X’s concerns were left unaddressed by the proposed conduct measures. Second, no conduct measures were proposed to enhance the public’s confidence in Constable Soares’ abilities to perform his duties and, in particular, in the area of the legal requirements of consent.

[53]  As previously noted, I shared these concerns with counsel during the proceeding. [10] I find that the public interest cannot be satisfied without additional conduct measures to address the foregoing. Constable Soares had no objection to the imposition of a direction to undergo training. The parties agreed that a transfer was appropriate and that it was, in fact, in the works. Subject to the Subject Member Representative’s comments about the process through which the location of the transfer will be determined, Constable Soares did not object to the imposition of a transfer. The latter is, in particular, essential to ensure that Ms. X’s concerns are addressed. Constable Soares’ interest to secure the most favourable location for a transfer cannot serve as a bar to its inclusion as a conduct measure. While the Conduct Authority has the discretion to determine the location to which Constable Soares will be transferred, Constable Soares’ personal circumstances are reflected in the Record and I would expect that these will inform the discussions that will follow.

[54]  With the inclusion of a transfer and a direction to undergo training, I do not find that the proposed measures are against the public interest. They are comprised of remedial, corrective and serious measures. They reflect the mitigating and aggravating factors of this case. They will serve as a deterrent to Constable Soares as well as a warning to other members. They also support Constable Soares’ reintegration into the workplace. Finally, the imposition of a transfer to another work location ensures that Ms. X’s concerns are addressed.

CONCLUSION

[55]  Having found Allegation 4 established, as amended, and in accordance with the joint submission presented by the Conduct Authority Representative and the Subject Member Representative, and the discussions that followed during the hearing, the following conduct measures are imposed:

1. pursuant to paragraph 4(d) of the CSO (Conduct), a financial penalty of 10 days (80 hours) of pay to be deducted from Constable Soares’ pay. The deductions for this payment shall not begin before November 1, 2020;
2. pursuant to paragraph 4(e) of the CSO (Conduct), a forfeiture of 10 days (80 hours) of annual leave;
3. pursuant to paragraph 5(1)(g) of the CSO (Conduct), a transfer to another work location at the Conduct Authority’s discretion; [11]
4. pursuant to paragraph 3(1)(c) of the CSO (Conduct), a direction to complete the Agora online course entitled “Consent Law and common Sexual Assault Myths”. Proof of completion is to be provided to the Conduct Authority within one year of the date of this decision; and
5. pursuant to paragraph 3(1)(i) of the CSO (Conduct), a reprimand. This written decision shall constitute the reprimand in this matter.

[56]  Constable Soares is being permitted to continue his career with the RCMP. However, any future contravention of the Code of Conduct will be seriously reviewed by the appropriate conduct authority and could lead to his dismissal from the Force.

[57]  Any interim measures in place should be resolved, in a timely fashion, in accordance with section 23 of the Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281.

[58]  Either party may appeal this decision by filing a statement of appeal with the Commissioner within the limitation period set out in subsection 45.11 of the RCMP Act.

		November 6, 2020
Christine Sakiris RCMP Conduct Board		Date