A Victoria police officer has filed a petition in B.C. Supreme Court seeking to stop a public hearing ordered by the Office of the Police Complaint Commissioner into an allegation of sexual misconduct.
The unnamed officer said the decision to call a public hearing is unreasonable and that the commissioner did not accept submissions from him.
Police complaint commissioner Clayton Pecknold ordered the public hearing in February and appointed retired justice Wally Oppal to act as the adjudicator.
At the time, Pecknold said a public hearing was necessary and in the public interest because the complaint against the officer is serious and the allegations relate to non-consensual sexual contact that affect the dignity of a person. In addition, it will assist in determining the truth and will preserve public confidence in the Victoria police department, he said.
The names of the off-duty officer and the complainant are protected by a publication ban.
The sexual assault is alleged to have taken place in Vancouver. The complainant travelled to Vancouver on May 11, 2018, to visit a friend. The next day, the two women went to several spots for food and alcoholic drinks.
Later in the day, they met a mutual friend and a group of his friends, including the off-duty Victoria police officer. A significant amount of alcohol was consumed during the evening.
About 2:30 a.m., the group went to a downtown Vancouver hotel where the off-duty officer and his two friends had booked a room. The complainant and her friend stayed the night there, along with the off-duty officer and one of the friends.
There was sexual activity between the complainant and the off-duty officer, but there is “a divergence in the evidence” about whether it was consensual, said the notice of public hearing.
The complainant told police she had been sexually assaulted while incapacitated due to alcohol consumption.
In June 2019, an investigation by Vancouver Police Department Insp. Shelly Horne found that the complainant was intoxicated, but not to the degree that she was unable to give consent. Horne found the allegation of sexual assault was not substantiated.
“The discipline authority found that although the complainant was highly intoxicated, she was not intoxicated to the degree that she lacked the capacity to consent based the evidence reviewed. The discipline authority found the off-duty member to be a credible witness and his description of the sexual contact with the complainant supported the proposition that he believed he had consent to touch her sexually,” the notice said.
In July, Pecknold appointed retired provincial court Judge James Threlfall to review the matter, “as there was a reasonable basis to believe that the decision of the discipline authority was incorrect.”
In August 2019, Threlfall determined there was enough evidence to substantiate a finding of discreditable conduct, noting that it did not appear the officer took steps to ascertain the complainant’s consent or her ability to consent given her advanced state of intoxication.
A discipline proceeding began on Oct. 24 with only the investigating officer and the accused police officer testifying. The complainant and other witnesses were not called to testify.
In December, Threlfall determined the allegation of discreditable conduct was not substantiated.
“The evidence as a whole does not provide clear, cogent and convincing evidence of the proof required to establish the elements of sexual assault. The entire sequence of events leading to the allegation of misconduct was regrettable and certainly not conduct that one would expect of a [member] of the Victoria Police Department.”
The complainant received a copy of Threlfall’s findings. On Jan. 8, 2020, the complainant asked for a public hearing.
The petition filed on May 11 must be responded to within 21 days.
