C-047 - Conduct Board Decision

Ms. X was the victim of violence from her boyfriend and the RCMP responded. The boyfriend was arrested, but released the next day on conditions and promise to appear. One of the conditions was no-contact with Ms. X. The day after the boyfriend's release, he texted Ms. X. She in turn called the RCMP and the Appellant was dispatched to her residence for a "Breach File". Ms. X showed the Appellant pictures of her injuries, while inadvertently showing him an inappropriate photo. The Appellant then showed her a "revealing" photo of himself. Over the next couple of days, Ms. X and the Appellant texted each other. The messages were sexual in nature. After two days, the Appellant texted Ms. X that they should not be texting each other and that it could jeopardize his career. Ms. X later texted the Appellant that her boyfriend had breached his conditions again, that she was scared of him and asked the Appellant to come to her apartment. The Appellant, who was off-duty, told her to get somewhere safe and call the police.

Ms. X had to appear in court regarding the charge against her ex-boyfriend. She met with Crown Counsel and told him that an RCMP Officer showed her inappropriate pictures of himself and was sending her texts that were sexual in nature. The Crown Attorney learned the Appellant's identity and complained to the Appellant's Line Officer. The charges against Ms. X's boyfriend had to be dropped because of the Appellant's actions. A Code of Conduct investigation was ordered against the Appellant relating to three allegations:

1. Engaging in discreditable conduct by showing Ms. X a revealing picture of himself and exchanging inappropriate sexual and personal text messages contrary to section 7.1;
2. Creating actual, apparent or potential conflicts of interest between his professional responsibilities and private interests based on inappropriate sexual and personal communications with Ms. X contrary to section 6.1; and
3. Failing to diligently perform duties and take appropriate action to aid Ms. X contrary to section 4.2.

There was no hearing and the Conduct Board (Board) refused to hear witnesses. The Appellant provided a response to the allegations admitting some of the particulars of Allegation 1, but denying Allegations 2 and 3. The Board held three pre-hearing conferences to address preliminary issues. However, it rendered a decision on the merits of the allegations while the parties were awaiting a decision on whether Ms. X would testify and whether she was a "vulnerable person". Neither party had provided submissions on the merits of the allegations. For the conduct measures phase, both parties provided submissions. The Board found that it did not need to hear witnesses because there was no conflict in the evidence. Because the Appellant admitted to showing a revealing photograph to Ms. X, the Board found Allegation 1 established. It found that Allegation 2 was a reiteration of Allegation 1 and found therefore that it was not established. The Board found Allegation 3 established. The Board ordered the Appellant to resign or be dismissed; the Board also ordered a 15 days' forfeiture of pay.

The ERC found that the Board breached the Appellant's right to procedural fairness by not holding a hearing in this case. While it found that not all cases need to proceed with an oral hearing, procedural fairness dictated that an oral hearing be held in this case. More particularly, because the Appellant had denied some allegations and the Conduct Authority Representative had raised the Appellant's credibility as an issue, the case needed to proceed by way of an oral hearing. The ERC further found that the Board breached both parties' right to procedural fairness by rendering a decision on the merits, without first inviting submissions from the parties.

The ERC recommended that the appeal be allowed and that a new hearing be ordered into the matter.

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

The Board ordered the Appellant to be dismissed for discreditable conduct and added a forfeiture of 15 days' pay for the failure to perform duties. The Appellant contends that the conduct measures imposed were unreasonable and overly punitive, that the Board was biased in the decision-making process, and that the Board did not allow the merits of the allegations to be argued. The Board ought to have also afforded the Appellant the opportunity to test assertions through cross-examination and make fulsome submissions on the merits of the allegations. Like the ERC, I find the Board breached the principles of procedural fairness by: not informing the Parties that it intended to render a decision on the merits without an oral hearing or further written submissions; not allowing the Parties to test the credibility of Ms. X in direct testimony and cross-examination; and, not providing the Appellant an opportunity to make comprehensive submissions on the allegations and the evidence. I allow the appeal and order a new hearing before a differently constituted conduct board pursuant to paragraph 45.16(1)(b) of the RCMP Act.