C-050 - Conduct Authority Decision

The Appellant was a supervisor at a Detachment. One of his subordinates, Cst. X, initiated a harassment complaint against the Appellant. In the course of making enquiries about the harassment complaint, it was learned that there were allegations of inappropriate behaviour by the Appellant towards two other female members at the Detachment.

Following a harassment investigation regarding the actions of Cst. X and a Conduct Meeting, the Conduct Authority issued a written decision where he found that the Appellant adversely impacted Cst. X, by watching her walk from behind (Incident 1), treating her differently from male members (Incident 2), and making inappropriate sexual comments and trying to pry into her current relationship (Incident 3), contrary to section 2.1 of the Code of Conduct. The Conduct Authority found that the Appellant's behaviour was sexual misconduct amounting to harassing behaviour. The Conduct Authority imposed conduct measures of a temporary two-year demotion, an order not to be placed in an acting supervisory role for a one-year period, a permanent transfer from his current position and location, a direction to attend counselling and apologize to Cst. X, and a direction to participate in a campaign against violence towards women and children at the Appellant's new position.

The Appellant alleges that the Conduct Authority's decision contravened the principles of procedural fairness, was based on an error of law and was clearly unreasonable. The Appellant argues that he was denied procedural fairness because he was not provided advance notice that he was potentially facing a demotion. The Appellant raises a number of arguments, appealing the Conduct Authority's finding on the Allegation. The Appellant also appeals the conduct measures imposed by the Conduct Authority. The Appellant alleges that the conduct measures imposed were clearly unreasonable because the Conduct Authority considered certain irrelevant considerations. The Appellant alleges that the Conduct Authority failed to consider certain mitigating factors and improperly considered an aggravating factor when imposing conduct measures and that the demotion was not proportionate to the circumstances.

The ERC found that the Appellant was not denied procedural fairness because he was informed, through the Notice of Conduct Meeting, of the conduct measures that were available to the Conduct Authority, which included demotion.

The ERC found that the Conduct Authority was not required to consider the intentions of the Appellant when he interacted with Cst. X when making a finding of sexual harassment.

The ERC found that the Conduct Authority did not make an error in weighing the evidence that led to a clearly unreasonable Decision on the Allegation.

The ERC found that the Conduct Authority was not required to make an express finding in his decision with respect to every element of the case and every argument made.

The ERC was of the view that the Conduct Authority made a clearly unreasonable error when he found that the Appellant's behaviour in Incident 1 amounted to harassment, because he did not explain how the Appellant's behaviour met the reasonable person test of harassment. The Decision on the Allegation was clearly unreasonable because the Conduct Authority failed to sufficiently explain why Incident 1 amounted to sexual harassment. However, the ERC found that the Allegation can still be established on the basis of Incidents 2 and 3 because the Conduct Authority did not make a reviewable error in his finding of sexual harassment with respect to Incidents 2 and 3.

The ERC found that the conduct measures imposed on the Appellant by the Conduct Authority were not clearly unreasonable and do not require intervention on appeal. The Conduct Authority identified the appropriate range of conduct measures he would consider imposing in the Decision. With the exception of one aggravating factor, "the Appellant's failure to take responsibility", the Conduct Authority's identification of both mitigating and aggravating factors in his Decision was supported by the record and was not influenced by irrelevant considerations. The conduct measures selected by the Conduct Authority were proportionate to the misconduct and supported by the principles in the Conduct Measures Guide.

The ERC recommended that, pursuant to subsection 45.16(2)(b) of the RCMP Act, the appeal be allowed in part. The ERC recommended that the Commissioner find that the Appellant's conduct, in relation to Incidents 2 and 3, supports a finding that the Allegation was established.

The ERC recommended that, pursuant to subsection 45.16(3)(a) of the RCMP Act, the appeal relating to sanctions be dismissed and that the conduct measures imposed by the Conduct Authority be confirmed.

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

The Appellant raises in one statement of appeal, several arguments directed at the factual findings established in C-050 and C-051, as well at the global measures imposed in response to those findings. He seeks a direction that the decisions: contravene the principles of procedural fairness with respect to lack of advance notice provided by the Respondent; rely on errors of law; and, are clearly unreasonable in light of the disproportionate sanctions imposed. The progression of sexual harassment investigations against the Appellant has been complex to date. The end result is two appealed decisions that share global conduct measures and a third decision, not appealed, with separate measurements. For the sake of clarity and concision the two appealed decisions are consolidated into one. The Appellant has not articulated how consideration of the complainant’s filing of a complaint could constitute a breach of procedural fairness nor did he provide any arguments with respect to the test that must be met to demonstrate a reasonable apprehension bias. I agree with the ERC that consideration of the complaint was not evidence of a clearly unreasonable error. I agree with the ERC that, upon viewing the conduct meeting notes and final decision, the Respondent clearly considered the relevant factors that justify a demotion. The Respondent’s decision to demote the Appellant is acceptable and defensible. I find no reason to overturn this decision based on a clearly unreasonable error.