C-048 - Conduct Board Decision

The Force (Appellant) appealed the Conduct Board's (Board) sanction decision, seeking a direction for the Respondent to resign, or his dismissal from the Force. The Respondent damaged a police vehicle, lied to his supervisor regarding his whereabouts, left his shift early, and removed a supervisor's comments from two files. While the Force was seeking the Respondent's dismissal, the Board found that all five allegations were established and imposed a reprimand, continued professional medical counselling, and a forfeiture of 10 days' pay. At the time of the incidents, the Respondent was suffering from undiagnosed, work-related, mental illnesses.

As a preliminary issue in the appeal, the Respondent challenged the retroactive extension of the one-year time limit to initiate a conduct hearing, which had been granted to the Appellant by a Director General (DG).

Regarding the merits of the appeal, the Appellant argued that the Board breached procedural fairness by refusing to allow him to call evidence regarding the damage to the police vehicle. He argued that the Board erred in accepting late evidence from the Respondent and in refusing to allow the Appellant an adjournment to respond to the late evidence. Lastly, the Appellant argued that the Board provided inadequate reasons regarding several issues.

Regarding the preliminary issue, the ERC found that the DG did not err in applying the Pentney test for an extension of time. His retroactive extension of the one-year time limit to initiate a conduct hearing was therefore not clearly unreasonable.

Regarding the merits of the appeal, the ERC found that the Board's refusal to hear evidence regarding the damage to the police vehicle did not breach procedural fairness. The ERC found that a decision-maker can limit the scope of evidence by stipulating certain points that are not in dispute. It was unnecessary for the Board to allow the Appellant to present the proposed evidence because the Board had already found that the particular was established.

The ERC found that the Board did not err in accepting the late evidence from the Respondent. The Commissioner's Standing Orders (Conduct) provides the Board great latitude in directing the hearing, as long as it is in accordance with the principles of procedural fairness. The Board did not breach procedural fairness because the Appellant had ample, timely, expert evidence regarding the Respondent's mental illness to allow the Appellant to prepare for the hearing, present any rebuttal evidence, and be fully heard on this issue. Lastly, the Board provided the Appellant the opportunity to cross-examine the witnesses and indicated that if anything was outstanding after the cross-examination that still required investigation, the Board would grant an adjournment at that time.

The ERC found that a decision-maker is not required to make an explicit finding in his or her decision with respect to every element of the case and every argument made. Further, where certain issues raised by the Appellant were addressed by the Board during the hearing, the ERC found it unnecessary for the Board to repeat his rationale in the written decision. This included the Board's refusal to allow the Appellant to call evidence regarding an allegation that had already been found to be established by the Board, and the Board's refusal to allow the Appellant an adjournment to respond to late evidence.

The ERC recommended that the appeal be dismissed.

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

The Commanding Officer, “X” Division (Appellant), challenges the conduct measures imposed by the Conduct Board (Board). The Appellant maintained that the conduct measures are insufficient in light of the allegations and argued that the decision was reached in a manner that contravened the applicable principles of procedural fairness, was based on an error in law, and is clearly unreasonable .

The Board imposed a reprimand, continued medical counselling, and forfeiture of 10 days pay. Instead, the Appellant is seeking a direction for the Respondent to resign within 14 days, or otherwise be dismissed from the Force.

I agree with the ERC finding that “the Appellant did not establish that the [Board] rendered a clearly unreasonable decision because of inadequate reasons”.

The Board satisfied all requirements in determining the appropriate sanctions to be imposed by: delineating the range of sanctions available; stating the mitigating and aggravating factors; and, providing a rational explanation for imposing conduct measures outside of the usual range. In sum, the Board’s decision must stand.

The Appellant has not persuaded me that the Board made any reviewable errors during the hearing or in imposing conduct measures. The appeal is dismissed and the conduct measures imposed by the Board are confirmed.