C-043 - Conduct Board Decision

In February 2015, the Appellant noticed, upon returning to his vehicle, that it had been vandalized and objects were taken from his vehicle. On his way home, he accidentally drove into a roadway sign, which further damaged his vehicle. Shortly thereafter, he reported the damage to his insurer and initiated a claim for vandalism. He did not advise the insurer that some of the damage was attributable to his hitting a sign. Later, he brought his vehicle to a professional for repairs, where he again claimed that all the damage to his vehicle had been caused by vandalism. The repair shop felt the damage could not solely be attributable to vandalism, and the insurer placed the repair on hold. The Appellant then spoke to an RCMP investigator conducting the theft investigation. He failed to report to the investigator that half the reported damage to his vehicle was unrelated to vandalism/theft and had, in fact, been caused by a collision. The Appellant subsequently reiterated, in a statement to an insurance adjuster, and insurance investigator and in a solemn declaration to a notary public, that the damage caused to his vehicle was exclusively the result of vandalism. On April 29, 2015, the Appellant pleaded guilty to a charge of providing false or misleading information contrary to the Insurance Act (judicial proceedings).

There were two Code of Conduct allegations brought against the Appellant. The Code of Conduct hearing proceeded by way of an Agreed Statement of Fact. The Conduct Board (Board) found the two allegations to be established. The Board then held a hearing on appropriate conduct measures. The Conduct Authority (CA) sought dismissal, and the Appellant sought a forfeiture of pay.

The Board ordered the Appellant to resign. Despite mitigating factors, significant aggravating factors were present. The Board referred to the Appellant's "criminal conviction" as an aggravating factor, and explicitly disagreed with the provincial judge's characterization of the misconduct as an isolated act. As well, given McNeil considerations, deployment of the Appellant would cause an administrative burden on the Force. Finally, the Appellant sought a personal benefit as his conduct avoided a deductible cost and avoided accountability for a single-vehicle collision.

The Appellant appealed the conduct measure. He argued that the Board erred in finding that the Appellant was motivated by personal gain; that there was planned and wilful deception, revealing a character flaw; and that the Board erred in its findings regarding the impact of a McNeil disclosure obligation. The Appellant further argues that the Board erred in minimizing mitigating factors and overstating aggravating factors. In his appeal submission, the Appellant requested to make further submissions on the range of conduct measures and be granted a case meeting with the Adjudicator before a final decision.

The ERC found that a supplemental submissions on the range of conduct measures should not be allowed. At the hearing, the Appellant had made submissions on the appropriate range and cannot revisit this position on appeal. Because a case meeting would be held after the ERC's F&R, the ERC indicated that the decision to hold a case meeting would be the Final Adjudicator's.

The ERC found that there was evidence that led the Board to make the finding that the Appellant was also motivated by avoiding accountability for his single-vehicle collision. Further, this issue was raised by the CA representative in his submissions on the allegations and in the Board's decision on the allegations. Yet, the Appellant chose not to address this issue.

The ERC further found that the Board's reasons regarding its finding that the Appellant was on an extended campaign to defraud were sufficient. The Board clearly explained why it made this finding; namely, that the Appellant kept to his lie for five weeks, to three organizations and several individuals.

The ERC found that the Board properly accepted the opinion of an RCMP member regarding the impact of McNeil. It found that lay witnesses can present their observations as opinions where they are merely giving a brief statement of facts and if they are in a better position than the trier of facts to form the opinion.

The ERC found that the Board's finding regarding the fact that the misconduct was not an isolated act does not constitute an improper relitigation of the finding of the provincial court judge. The issue before the Board was distinguishable from the issue before the provincial court judge.

Lastly, the ERC found that the Board did not err in its assessment of the mitigating and aggravating factors. The Board's findings on these issues were all supported by the record. Although the Board referred to a "criminal" conviction, the error was not determinative in this case and there was evidence that the Board was aware that the Appellant had not been convicted of a criminal offence.

The ERC recommended that the appeal be dismissed.

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

The Appellant presented an appeal challenging the conduct measures imposed by the RCMP Conduct Board, having established two allegations of discreditable conduct and ordering the Appellant to resign within 14 days in default of which he would be dismissed. The Appellant submits that in the absence of giving him a fair chance to explain himself, the proceedings were rendered procedurally unfair and that the Board erred by finding that he engaged in an extended campaign to defraud, and rejecting the Appellant's testimony that he acted impulsively, all leading to the conclusion that the Appellant's "wilful deception showed a 'fundamental character flaw which made him unsuitable for further [RCMP] employment'". The Appellant submits that the Board erred in finding that he had a criminal conviction which "is an indication of the gravity of the misconduct", as the Appellant has no criminal record, having been convicted of a provincial regulatory offence.

I am satisfied that the Board fully understood the nature of the conviction that resulted from the Provincial Court proceedings. Applying the clearly unreasonable standard means the Board is owed significant deference on the question of appropriate conduct measures. While the decision is not perfect, I find that the Appellant has not established that the Board made any manifest and determinative errors. The Board acted within his jurisdiction, and having heard and assessed the evidence directly, deliberated, and issued a decision, first orally, and then, nearly seven months later, in writing, that is justifiable, transparent, and intelligible. I am satisfied that the Board identified the appropriate range, considered the relevant mitigating and aggravating factors, and ordered a sanction that is not clearly unreasonable in the circumstances.

I dismiss the appeal and confirm the conduct measures imposed by the Board.