'The system feels rigged': B.C. woman frustrated by police officers investigating colleague's misconduct

A Saanich, B.C., police vehicle in an undated file photo. (Saanich police/Twitter)

A Saanich woman's complaint about a local police officer is headed to a retired judge for review, and she says the process to get to that point has been both eye-opening and frustrating.

The complainant first brought her allegations against the officer – which included having a sexual encounter while he was on duty – to the provincial Office of the Police Complaint Commissioner in July 2022. CTV News is not identifying the complainant or the officer, at the complainant's request, to protect the privacy of both parties.

While she says she initially filed her complaint out of concern for the officer's well-being, after he allegedly expressed having suicidal thoughts, the complainant tells CTV News she's now more interested in exposing the flaws in the OPCC process.

She claims the officer lied to his fellow Saanich Police Department officers tasked with investigating her complaint. She also alleges that these investigators have worked to protect their colleague, and that she was never given an opportunity to disprove his alleged lies.

The Saanich police sergeant tasked with investigating the complaint identified four instances of possible misconduct: three allegations of behaviour that, if proven, would be "discreditable conduct," plus one allegation of improper disclosure of information from a police investigation.

The discipline authority in the case – another Saanich police officer – concluded that each allegation "does not appear to be substantiated."

That decision is now set to be reviewed by a retired judge, after Police Complaint Commissioner Clayton Pecknold concluded there is a reasonable basis to believe it was incorrect.

WHAT HAPPENED?

The initial complaint stemmed from a meeting between the complainant and the officer in the early morning hours of Jan. 13, 2018. The officer was on duty and in uniform at the time.

The pair allegedly engaged in a sexual act, which the complainant told the OPCC was not sexual assault, but was "outside of her comfort zone" because it happened in a public parking lot where it could have been seen by others.

The complainant tells CTV News her relationship with the officer began in 2017 after they met through a recreational soccer team. He "expressed interest" in her from the start, even though he was married, she says, adding that he told her he was in the process of getting divorced.

Over time, the complainant says, it became clear that the officer wasn't getting divorced, and also that he was having another romantic relationship with yet a third woman who was neither the complainant nor his wife.

The complainant says the officer's cheating weighed heavily on him, and that he confessed to her that he had had suicidal thoughts. She says she made efforts to end their relationship and cut off communication, but he initially refused to do so. They did eventually stop communicating in April 2020.

By then, the 12-month limitation period for filing an OPCC complaint about the January 2018 incident had already expired. It would be another two years before she filed one.

The complainant says she didn't realize she had the option to file an OPCC complaint until 2022, and that if she had known about the process sooner, she would have filed sooner.

"You read about police officers taking their own lives, and it was just one of those things where it was like, I wouldn't want that on my hands or anything like that," she says, adding that she believed an OPCC complaint would be an opportunity for her to disclose what she knew about the officer's lifestyle and mental health and ensure he would receive support.

"That was, honestly, the purpose of it," she says. "I didn't expect it to even be admissible because it was past the one year that the OPCC (allows)."

Despite the complaint's lateness, the office determined it was in the public interest to order an investigation.

THE MISCONDUCT ALLEGATIONS

The complainant's initial submission to the OPCC is only four sentences long. It includes a brief description of the January 2018 encounter and the officer's confession of suicidal thoughts. It also mentions the complainant and the officer meeting while he was on duty on "many occasions" from 2017 through 2019.

Two of the four misconduct allegations that were ultimately considered and dismissed came out of the initial complaint. The other two were put forward by the SPD investigator as he looked into the complaint.

Engaging in a sexual act while on duty and in uniform would be considered "discreditable conduct" if substantiated, according to the discipline authority's decision.

Discreditable conduct is defined broadly in B.C.'s Police Act as an officer behaving "in a manner that the member knows, or ought to know, would be likely to bring discredit on the municipal police department."

The SPD investigator determined that having social meetings with a friend or romantic partner while on duty could also be considered discreditable conduct, if the number and duration of the meetings was significant enough to exceed the "reasonable expectation" of the community.

The other two misconduct allegations came from the investigator's discussions with the complainant. He identified another potential instance of discreditable conduct in which the officer allegedly "grabbed (the complainant's) butt" while she was visiting the police department in 2017.

Finally, the investigator also identified an instance of alleged improper disclosure of information from a police investigation. This allegation stemmed from a meeting between the complainant and the officer near Elk Lake in July 2017.

During the meeting, the complainant allegedly heard information shared over the police radio system, and the officer "filled in the gaps" regarding what was happening.

The SPD investigator summarized the evidence provided by the complainant and the officer in a "final investigation report," which the discipline authority used to determine whether any of the four misconduct allegations was substantiated.

The complainant says she didn't learn what the officer had told the investigator about her until she received the final investigation report, which was at the same time that she received the discipline authority's decision.

THE DISCIPLINE DECISION

According to the discipline authority's decision, the officer claimed he did not remember exactly when the January meeting occurred. He acknowledged meeting with the complainant in the parking lot that night, but denied the sexual act.

Corroborating evidence, such as surveillance video, was not available because of the time delay, the decision reads.

The discipline authority also rejected the relevance of text messages provided by the complainant, concluding that they did not pertain to the circumstances of the January meeting, and that he could not confirm their veracity.

The complainant argues that the text messages were relevant and shouldn't have been discounted, and Pecknold's decision to refer the matter to a retired judge references concerns that the disciplinary authority didn't place enough weight on the messages.

In his decision, the discipline authority concluded that the only available evidence was the testimony of the two parties, and that there was "no basis on which to prefer" the complainant's version of events.

He reached similar conclusions regarding the other allegation of inappropriate physical contact and the allegation of improper disclosure, each time concluding that the officer's version of events was at least as likely as the complainant's.

Finally, on the number and duration of the meetings, the discipline authority again found differing narratives from the parties. The officer said he met the complainant "three to four times" while he was working, while the complainant said it happened more often than that.

The disciplinary authority did not reach a conclusion on the number of personal meetings that occurred, though the SPD investigator suggested it could have been as many as eight.

Rather, the discipline decision focused on the duration of a single meeting – the one at Elk Lake during which the alleged improper disclosure occurred – which was confirmed through "police vehicle computer records" to have lasted for two hours and 11 minutes.

In concluding that this discreditable conduct did not appear substantiated, the disciplinary authority noted that the SPD has no policy regarding when officers can take breaks while on duty, nor for how long.

"I am aware that it is common for patrol officers to work extended periods without breaks and that they are given considerable latitude in how they spend break time because of this," the decision reads.

The discipline authority concluded that the absence of an SPD policy prohibiting a two-hour break, coupled with the evidence that the officer left the scene when a call for service came in, meant that he had met the "reasonable expectation of the community" standard.

Pecknold also expresses doubt about this conclusion in his decision to refer the matter to a retired judge.

CONCERNS ABOUT THE PROCESS

The complainant says she read the final investigation report and the discipline decision with anger.

Though neither report includes a direct transcript of the officer's words, the complainant feels it's clear that he lied about his relationship with her in an effort to discredit her.

"He claimed that I was stalking him," she says. "He claimed that I damaged his property. He claimed that I wasn't well."

Even more frustrating, she says, is the fact that she was unaware of what the officer had said about her until it was too late for her to have her response included in the record.

"At some point, it is a 'he said, she said.' I get that," the complainant says, but she's confident she can prove that some of the officer's statements were false.

As an example, she says that the officer told the SPD investigator he didn't know how the complainant figured out his wife's name or where she worked.

"I have the text messages where we're talking about his wife, by name," the complainant says. "I have the text messages where he's at a party at his wife's work and he told me exactly where she works. It wasn't like it was a secret."

Beyond her concerns about false statements, the complainant sees bias in the way the Saanich police officers tasked with investigating and adjudicating the complaint weighed her evidence against the officer's.

"A lot of latitude and a lot of grace was given to (the officer)," she says. "Whereas there was, like, intense scrutiny of me, and it looks like a lot of reaching, attempts to try to discredit or catch me in a lie or suggest that my facts were inconsistent."

"The system feels rigged," she adds.

Asked by CTV News to respond to the complainant's concerns, Saanich police issued a brief statement of support for the OPCC process.

"The Saanich police take allegations of misconduct seriously and fully support the ongoing OPCC investigative process," said spokesperson Sgt. Damian Kowalewich.

"As always, we are accountable to the residents and communities we serve. We will continue to support this investigation and additional details cannot be shared at this time."

WHAT HAPPENS NEXT?

The complainant's only recourse after receiving the discipline authority's decision was to ask the OPCC to send the decision to a retired judge under Section 117 of the Police Act.

She did that, alleging in her request that the discipline authority favoured the officer's recollection of events, made findings that were not congruent with the facts she provided in her evidence, and was incorrect about the community's expectations regarding how officers use their time.

Pecknold agreed with some of the complainant's concerns, concluding he had "reasonable basis to believe" the discipline authority was incorrect in his conclusions on the sexual touching and time use allegations.

The complainant says after going through the process, she's not especially concerned about the outcome of her allegations, save one.

"The only allegation, at this point, that I even care about – because it seems like a giant hole – is the fact that Saanich doesn't have a policy on how officers can use their time," she says.

She's also hoping planned provincial reforms to the Police Act take the authority for investigating police misconduct out of the hands of police officers.

"I would like to see the Police Act, probably, strengthened," she says. "The whole police investigating themselves or their buddies and their friends, I don't think that serves anyone."

Pecknold has appointed retired B.C. Supreme Court justice Elizabeth Arnold-Bailey to review the case. Arnold-Bailey will have 10 business days after receiving the case materials from the OPCC to decide whether the officer committed any misconduct.

If Arnold-Bailey concludes that the officer did commit misconduct, the retired judge will take over as the discipline authority in the case and convene a hearing on what penalties the officer should face.