C-031 - Conduct Authority Decision

The Appellant attended a fast food restaurant while off duty and ordered a cheeseburger. He waited a long time for his burger, which was ultimately placed on a service counter. Upon inspection, his burger seemed raw to him. He began to swear loudly while standing at the service counter, and tried to photograph the burger patty. The restaurant manager, a 21 year-old male, began taking the burger patty off the service counter, at which point the Appellant grabbed his wrist and pulled him with some force. The manager dropped the burger patty behind the service counter and indicated that he would call the police. The Appellant replied that he was a police officer. He then went behind the service counter, removed the burger patty from the floor and photographed it. After receiving a refund and continuing to express himself animatedly for several minutes, the Appellant left. The manager phoned 911 and the Appellant was eventually charged with assault and causing a public disturbance. Those two charges were later stayed.

Following a statutory investigation, a Code of Conduct investigation and a conduct meeting, the Respondent issued a written decision wherein he found, among other things, that the Appellant breached section 7.1 of the Code of Conduct (“Discreditable Conduct”) by using inappropriate and unwanted force against the fast food restaurant manager (Decision). The Respondent reasoned that the Appellant’s use of force was minor but nonetheless improper, unjustified and ascribable to an inability to control his emotions. The Respondent went on to impose against the Appellant for this contravention a forfeiture of two days’ pay. The Appellant is appealing the finding that he violated section 7.1 of the Code of Conduct.

The ERC dealt with the Appellant’s arguments on appeal. First, the Appellant did not establish and the record did not disclose that the Decision was reached in a procedurally unfair way. There was no suggestion that the Respondent held a bias or failed to maintain an open mind, nor was there any indication that the Appellant was prevented from having his views heard or considered. Second, the Respondent did not err by framing the Appellant’s use of force as a breach of section 7.1 of the Code of Conduct or by proceeding with the conduct process on that basis. It was clear from the RCMP Conduct Measures Guide (Guide) that the alleged use of force fell within the ambit of section 7.1 transgressions. Third, in considering whether the allegation of disgraceful conduct was established, the Respondent did not commit any errors of fact simply by weighing the evidence before him in ways the Appellant disliked.

However, the ERC found that the Respondent made an error of mixed law and fact by omitting to properly consider and apply to the facts before him the test for resolving if the Appellant’s use of force was likely to bring discredit to the Force, contrary to section 7.1 of the Code of Conduct. That test is how the “reasonable person” with knowledge of all relevant circumstances, including the realities of policing in general and the realities of RCMP policing in particular, would view the Appellant’s use of force against the fast food restaurant manager. Pursuant to paragraph 45.16(2)(b) of the RCMP Act, the ERC concluded that the Commissioner should allow the appeal on this basis and make the finding that should have been made. Specifically, the aforementioned reasonable person would see the Appellant’s use of force, which was clearly inappropriate, as likely to bring discredit to the RCMP, contrary to section 7.1. The reasonable person would afford an off-duty police officer some leeway in raising concerns over a restaurant order being undercooked, but that leeway would not include tolerating the officer grabbing and pulling the restaurant manager against his will, even if the use of force lasted for only a second. The reasonable person would be troubled if the RCMP, having considered the evidence, found the officer’s use of force to be serious enough to justify bringing a criminal charge of assault against the officer, regardless of whether the charge was later stayed. Lastly, the reasonable person, aware of the principles of the Guide, would concede that, while the officer’s use of force was relatively minor and did not lead to a criminal conviction or to an injury, it still fell within the scope of conduct likely to bring discredit to the Force, contrary to section 7.1 of the Code of Conduct, as described in the Guide.

The ERC found that the two-day pay forfeiture ordered on the Appellant for his breach of section 7.1 of the Code of Conduct should be confirmed. The Appellant did not establish and nothing in the record indicated that the decision to impose that conduct measure warranted intervention.

The ERC recommended that the Commissioner allow the appeal of the Respondent’s finding that the Appellant engaged in discreditable conduct, given the Respondent’s omission to consider and apply the governing legal test. It further recommended that the Commissioner make the finding the Respondent should have made in this regard, specifically, that the aforementioned reasonable person would view the Appellant’s off-duty use of force on a fast food restaurant manager as likely to bring discredit to the RCMP, contrary to section 7.1 of the Code of Conduct. The ERC further recommended that the Commissioner confirm the conduct measure imposed on the Appellant, that being a forfeiture of two days’ pay.

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

The Appellant is a General Duty Member with the RCMP. His work duties in April 2016 were administrative in nature due to an unrelated medical issue. On April 18, 2016, the Appellant, while off-duty, ordered a cheeseburger at a restaurant. When he received it, he believed the patty was raw. The Appellant became upset and raised his voice and used profanities. As he was attempting to photograph the patty, the manager took it away. The Appellant grabbed the manager's wrist and pulled him forward to prevent him from doing so, causing the manager to lose his balance. The manager said that he would contact the police. The Appellant then identified himself as a police officer. Although the manager did not believe the Appellant was a police officer, he was "freaked out" by the Appellant's claim. The manager called 911. The Appellant obtained the store owner's contact information and departed the scene before police arrived. This event (the Incident) was captured on video surveillance.

As a result, a statutory investigation was commenced. The Appellant was charged with assault and causing a disturbance at or near a public place, contrary to the Criminal Code. The charges were subsequently stayed and the Appellant was diverted to alternative measures for the charge of causing a disturbance.

A Code of Conduct investigation was initiated into three allegations. The Respondent found that Allegation 2 (the Appellant's inappropriate use of his position as a police officer in his communications with employees) was not established. However, the Respondent found that Allegation 1 (the Appellant treated employees in a disrespectful manner) and Allegation 3 (his use of inappropriate and unwanted force on the manager) were both established. As conduct measures, the Respondent imposed a forfeiture of one day of pay for Allegation 1 and a forfeiture of two days of pay for Allegation 3.

The Appellant accepted the finding for Allegation 1. However, he appeals the Respondent's finding that Allegation 3 was established, arguing that the Respondent's decision was both procedurally unfair and clearly unreasonable.

On November 14, 2019, the RCMP External Review Committee (ERC) recommended that the appeal be allowed. The ERC did not find that any evidence that the decision was procedurally unfair. The ERC also found that the Appellant's arguments had failed to establish that the Respondent's decision was clearly unreasonable - the Conduct Appeal Adjudicator (Adjudicator) agrees with these findings, although for different reasons.

However, the ERC also considered whether the decision was clearly unreasonable because the Respondent had failed to explicitly state and apply an applicable legal test - an issue not raised by the Appellant. On that basis, the ERC recommended that the appeal be allowed and the Commissioner make the finding the Respondent should have made. The Adjudicator agreed with the test identified by the ERC, but disagreed with how the ERC applied that test. The Adjudicator found that the decision was not clearly unreasonable as there was no clear or manifest error related to the finding that Allegation 3 was established.

The ERC also considered the conduct measures imposed. The Adjudicator found that the Appellant did not appeal this issue so it was not considered.