C-026 - Conduct Authority Decision

The Appellant attended a section of train tracks at which a young man had been injured in a rail collision. The RCMP decided that the scene should be ceded to the Railway Police as they had jurisdiction over the train tracks. Before leaving the scene, a superior directed the Appellant, as the NCO, to personally hand the scene to the Railway Police when they arrived. The Appellant later stood by while a junior member ceded the scene. Weeks later, the Appellant responded to an Assault complaint on a First Nations Reserve where another young man had sustained serious injuries. After calling an ambulance, making some queries and having photos taken, he allowed a resident to wash blood off the ground where the victim had been found. He did not secure the scene and later agreed he could have brought in Forensic Services prior to releasing the scene.

The Force undertook a Code of Conduct investigation into allegations that the Appellant had not been diligent in following a direction at the scene of a rail collision, or in investigating the Assault complaint on a Reserve, contrary to section 4.2 of the Code of Conduct. The Respondent found that the two allegations were established on a balance of probabilities standard and imposed on the Appellant conduct measures including a forfeiture of two days of pay and a direction to work under close supervision for up to one year. The Appellant furnished an appeal. He submits that some of the Respondent's findings on the two allegations are clearly unreasonable, and that the Respondent cited certain unsubstantiated or improper factors in imposing conduct measures. In support of his appeal, the Appellant supplied for the first time copies of several different records.

The ERC found that the several new records offered by the Appellant on appeal were inadmissible. None of those records were provided to the Respondent, despite pre-dating the decision by months. Moreover, the Appellant did not say why he could not have given them to the Respondent even though they were known by and seemingly obtainable for the Appellant.

The ERC then held that none of the Appellant's grounds of appeal on the allegations revealed a clearly unreasonable decision. Sets of reasons supplied in the decision, as a whole, necessarily implied that the Respondent considered and applied the test for ascertaining a breach of section 4.2 of the Code of Conduct. The Respondent did not misunderstand, or misjudge, the evidence. Additionally, while the Appellant was entitled to disagree with the Respondent's weighting of the evidence, absent a manifest and determinative error, it is not the Commissioner's role on appeal to assess if the Respondent erred simply by performing the function with which he was tasked.

Although the ERC expressed concerns with the Respondent's reliance upon certain aggravating factors which could have been made clearer, it found that the record seemed to clarify them and that, regardless of the possible ambiguities, the conduct measures imposed were extremely fair, reasonable and supported, taking into consideration the facts and the Conduct Measures Guide.

The ERC recommended that the appeal be denied.

The Commissioner's decision, as summarized by her office, is as follows:

The Appellant was subject of an investigation in which it was found that he contravened section 4.2 of the RCMP Code of Conduct. The Respondent imposed conduct measures of close supervision for a period of no longer than one year and forfeiture of two days of pay.

The Appellant presented his appeal, arguing that the Respondent's decision was procedurally unfair, based on an error of law, and was clearly unreasonable.

The adjudicator determined that the Respondent's decision was clearly unreasonable, finding in regard to Allegation 1 that the evidence did not support his conclusion, and in relation to Allegation 2, that the Respondent failed to consider how the Appellant's behavior crossed the threshold from a performance issue to misconduct. Therefore, the Respondent's decision was set aside, and in accordance with paragraph 45.16(2)(b) of the RCMP Act, the adjudicator made the finding that, in her opinion, the conduct authority should have made.

It was determined that the evidence was insufficient to demonstrate that the behavior crossed the line from performance to misconduct. Therefore, the allegations that the Appellant contravened section 4.2 of the Code of Conduct by failing to follow direction, or failing to properly investigate a complaint of assault causing bodily harm were not established. As a result, the conduct measures were rescinded.