Articles of Interest

Update: Decision of the Federal Court in the Gordon Case

by Virginia Adamson, Counsel
December 2003

On October 28, 2003, the Federal Court of Canada (Trial Division) issued its decision in Gordon v. Canada [2003] FC 1250. The Gordon case was summarized in the Communiqué of July-September 2000 (Committee's Recommendations) and October-December 2000 (Commissioner's Decision).

Constable Gordon was alleged to have engaged in disgraceful conduct for sexually assaulting a woman who had visited him at his home. He admitted to having sexual intercourse with the complainant, but maintained that it was consensual. He had become acquainted with the complainant through a prior job contact and later he had briefly met with her at his office. She had told him at that time that she was considering making a complaint about a sexual assault that had taken place some years ago. She gave some details about the alleged assault, but did not pursue the complaint.

An Adjudication Board found that the member had conducted himself in a disgraceful manner and brought discredit on the RCMP. On sanction, the Board identified excessive alcohol consumption as one of the aggravating factors. Constable Gordon was ordered to resign from the Force within 14 days or be dismissed.

The member appealed the Board's decision. The Commissioner referred the matter to the Committee, which did not agree with the Board. According to the Committee, the Board had drawn inappropriate conclusions from the evidence, including the testimony provided by a taxi driver who reported having seen the Appellant and the alleged victim together on the evening of the alleged assault. The Committee also found that the Board had misused the evidence of a forensic psychologist by concluding that his evidence supported the complainant's version of events. It also found that the Board failed to address critical weaknesses in the complainant's evidence. This left the impression that the Board had not fully considered the evidence and arguments of both parties before reaching its decision. With regard to the sanction, the Committee also commented that the Board seemed to have attributed the alleged misconduct to abuse of alcohol and found that the evidence did not support this conclusion.

The Committee recommended that the Commissioner find that the allegation of misconduct was not established and that the appeal be allowed. The Committee also recommended that, in the event that the Commissioner agreed that the complainant freely consented to having sexual intercourse with the Appellant, but that his conduct was still disgraceful, a more lenient sanction would be justified.

The Commissioner accepted the Committee's findings that there were significant contradictions in the testimony of the victim. He also accepted the Committee's comments regarding the Board's interpretation of other key testimony. Considering the standard of proof to be met, the Commissioner was not prepared to accept the testimony of the victim where it differed from that of the appellant and was not otherwise corroborated. He found that the victim may have consented to sex with the appellant.

However, the Commissioner disagreed with the Committee about the gravity of the situation. According to the Commissioner, the contact between the member and the victim was improper, because there was an official, professional relationship created when the victim went to see the member to discuss the possibility of filing a report about a past assault. He noted that the victim made an intimate, personal disclosure to the member about a prior sexual assault and that she had decided to discuss this matter with him because she felt that she could trust him. At the time of the incident, she was still trying to decide what course of action to follow. The Commissioner found that the appellant had an obligation to respect this relationship of trust and to ensure that he did nothing to take advantage of it. The member had failed to do so. In engaging in sexual relations with a person with whom he was in a position of trust as a result of his duties, the allegation of disgraceful conduct had been established and the appeal against the finding was denied.

As for sanction, the Commissioner considered the fact that the member had been subject to serious prior discipline. In addition, the Commissioner made findings with regard to the role played by alcohol in this matter. Although the Commissioner noted that it had not been shown that the conduct was the result of intoxication, he found that the member had been drinking at the time of the incident. The Commissioner also stated that the Appellant had been aware that he had a serious problem with alcohol and had been offered assistance. While the Appellant had shown some effort to address this issue, the efforts had not been sustained and had not been successful in addressing the problem. Therefore, the Commissioner ordered the member to resign or be dismissed from the RCMP.

Constable Gordon made an application to the Federal Court, asking that the Commissioner's decision be overturned. The Court noted that the standard of review of the Commissioner's decision is "patent unreasonableness." Therefore, the court cannot intervene simply because it disagrees with the reasoning of the Commissioner. As stated in the Canada Safeway decision ([1998] 1 S.C.R. 1079), the standard of review of "patent unreasonableness" is a very high standard and, to justify judicial intervention, the Commissioner's decision would have to be more than simply unreasonable. The Court also referred to Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 and noted the difference between the standard of "reasonableness" and that of "patent unreasonableness." If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes significant searching or testing to find the defect, then the decision is not "patently" unreasonable.

Counsel for the member argued that a ten to fifteen minute conversation in the Detachment Office, between the member and the victim, was insufficient to establish a relationship of trust. Noting that the two were acquainted with each other and that the complainant sought out the member to discuss her potential sexual assault complaint, the member's counsel argued that the incident of sexual relations was nothing more than part of that personal relationship. This was remote from a relationship of trust that may have been created by the meeting in the Detachment office.

However, the Federal Court stated that this argument did not render the Commissioner's decision patently unreasonable, and that it was open to the Commissioner to interpret the evidence in the way that he did.

On the question of sanction, the member's counsel argued that the sanction was unduly harsh. This had also been noted in the Committee's findings. The Court noted that although the sanction may be unduly harsh, it was not "clearly irrational" which is the test to be applied. The Court also indicated that the Commissioner's had to balance the interests of the member with the interests of the RCMP as an institution. The Court therefore dismissed the member's application.

This decision is noteworthy because it confirms other Federal Court decisions, such as Jaworski v. Canada (Attorney General) (2000) N.R. 167 (Federal Court of Appeal) that have identified the standard of "patent unreasonableness" in the review of appeals of disciplinary decisions by the Commissioner.