C-030 - Conduct Authority Decision

The Appellant took a meal break at a diner, where he was seen looking at a female patron. The Appellant pulled over that patron's vehicle immediately after she left. During the traffic stop, he identified himself to the female, gave her an RCMP business card on which he handwrote his preferred name and personal cell number, and issued no ticket or warning. The female took the business card, later explaining that she “did not want a ticket”. Subsequently, the female told her friend's fiancé, an RCMP member, about what happened. The member was concerned and made inquiries. He discovered that the Appellant, whom he had never worked with and did not know, was the officer who conducted the traffic stop. He advised a superior of his findings.

Following a Code of Conduct investigation in which the Appellant did not clearly explain why he had performed a traffic stop of the female patron and given her his personal cell number, the Respondent issued a written decision finding that the Appellant had contravened section 3.2 of the Code of Conduct by abusing his authority as a police officer. The Respondent went on to impose on the Appellant a corrective conduct measure consisting of a forfeiture of six days' pay, as well as remedial conduct measures. The Appellant appeals the finding that he violated the Code of Conduct, on a number of grounds. Alternatively, he requests that, if this finding is upheld, his six days' pay forfeiture be overturned or reduced on the basis that it is overly harsh.

The ERC dealt with the various positions and concerns raised on appeal. First, the Respondent made a procedural error by alleging that the Appellant violated section 3.1, but concluding that he violated section 3.2 of the Code of Conduct. While unfortunate, this error did not result in procedural unfairness to the Appellant as it was clear from the record that he knew the case to be met and the jeopardy he faced, and that he was prepared and received an opportunity to respond to the case against him. Second, the Respondent did not err by omitting to direct an investigative inquiry that was based solely on the Appellant's speculation. Third, the Respondent did not ignore relevant factors or rely on irrelevant factors. Lastly, his assessments of the evidence and factual findings did not otherwise evince a manifest and determinative error.

Turning to the matter of conduct measures, the ERC found that the Respondent's imposition on the Appellant of a forfeiture of six days' pay warranted intervention, as the Respondent did not apply the three-part test for selecting appropriate conduct measures. The ERC applied this test. After noting the appropriate range of penalties for the impugned conduct and restating mitigating and aggravating factors, the ERC found that the conduct measure that best reflected the gravity of the misconduct, as well as the nexus of that misconduct and the requirements of the policing profession, was a forfeiture of two days' pay. This measure was in line with the requirements of the policing profession, as reviewed in the RCMP Conduct Measures Guide, exemplified by the penalties ordered by Canadian police services (including the Force) for commensurate conduct.

The ERC recommended that the appeal be allowed in part; specifically, that the component of the Appellant's appeal involving conduct measures be allowed, and that the corrective conduct measure consisting of a forfeiture of six days of the Appellant's pay be reduced to a forfeiture of two days of the Appellant's pay.

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

The Appellant is a Constable who was working a night shift on overtime. At approximately 10:30 p.m., he took a meal break at a Diner at which two women were present. The Appellant left the Diner, but stayed in the area and monitored traffic from a location across the street from the Diner. Later that night, the Appellant stopped one of the women after she left the Diner. The woman said she was not speeding and she was not given a ticket during this traffic stop. The Appellant gave her a business card with his nickname and his personal phone number hand-written on it. According to the woman, the Appellant invited her to call him if she was ever going out to certain parts of town. This incident was reported several months later and a Code of Conduct investigation was ordered into whether the Appellant had abused his authority (section 3.2) or acted in a manner that brought discredit to the Force (section 7.1). During the investigation the Appellant said that he did not remember the traffic stop, but denied pulling the woman over for romantic reasons. He also said that it was common for him to provide motorists his personal phone number and that he was generally friendly with people once he determined that he did not need to charge them with an offence.

After a conduct meeting, the Respondent found that the Appellant had abused his authority but did not establish the allegation of discreditable conduct because the misconduct was already addressed by the abuse of authority finding. As conduct measures, the Respondent ordered the Appellant to: forfeit six days of pay, review core values of RCMP with his line officer, and discuss police procedure for traffic stops with his immediate supervisor.

The Appellant appealed both the Respondent's findings and the conduct measures he imposed. During the appeal process, the Appellant submitted additional arguments after established deadlines.

On October 30, 2019, the ERC released its findings and recommendations. The ERC recommended that the late submissions not be allowed as they were late without justification and the substance of the documents did not warrant a retroactive time limit extension. The ERC recommended that the appeal of the findings be denied. The ERC recommended that the appeal of the conduct measures be allowed because the rationale for conduct measures was not sufficient. The ERC recommended that the forfeiture of pay be reduced from six days to two days.

The Appeal Adjudicator accepted most of the ERC recommendations, although the rationale for his decision was different from the ERC analysis in some respects. The Appeal Adjudicator agreed with the ERC that the forfeiture of pay should be reduced, however, the Appeal Adjudicator reduced it to a forfeiture of four days of pay instead of two days of pay as recommended by the ERC.

The Conduct Appeal Adjudicator denied the appeal of the Respondent's findings. The Conduct Appeal Adjudicator allowed the appeal of the conduct measures imposed. The Conduct Appeal Adjudicator maintained the remedial measures already imposed and reduced the forfeiture of pay from six days to four days.