C-053 - Conduct Board Decision

During an RCMP-led Program, the Appellant answered a service call from an elderly woman who wanted to turn over a firearm. The Appellant kept the firearm submitted by the elderly woman for himself and provided a false and misleading police report regarding his actions. An investigation was mandated in which the investigator came to the Appellant’s residence and provided him with an “Order to Return Items”. The Appellant therefore produced the firearm. The Appellant plead guilty and was convicted under the Criminal Code of possessing a prohibited firearm without a valid registration certificate. While reviewing the Appellant’s files, his supervisor came across similar circumstances that occurred one year prior. In that other case, the Appellant again kept the item for himself and created a false and misleading police report. The Appellant faced nine allegations including behaving in a manner likely to discredit the Force contrary to section 7.1 of the Code of Conduct, failing to act with integrity and abusing his authority, power and position contrary to section 3.2, failing to provide complete, accurate and timely accounts contrary to section 8.1 and failing to properly account for property coming into his possession contrary to section 4.4.

Before the conduct hearing began, the Appellant filed a motion to exclude evidence under section 24(2) of the Charter of Rights and Freedoms (Charter). The Appellant argued that when the investigator served the Appellant with the Order to Return Items (Order), he breached the Appellant’s rights under section 8 (unlawful search and seizure) of the Charter. The Conduct Board (Board) granted the motion and excluded all evidence obtained as a result of the Order. The hearing before the Board was held over a three-day period. Although some of the facts were undisputed by the Appellant, it was the interpretation of those facts that was contested. The Board found five allegations established, and it later stayed one of these allegations by consent from the parties. After a conduct measures hearing, the Board ordered the Appellant to resign or be dismissed.

On appeal, the Appellant argued that the Board issued contradictory reasons in finding that the breaches of the Appellant’s Charter rights required that the related evidence be excluded from the conduct hearing, while simultaneously turning to the Criminal Proceedings involving that very evidence. Moreover, the Board relied on excluded evidence to make its findings. The Appellant further argued that the Board erred in law when it stated that it was bound by the Provincial Court judge’s findings. The Appellant further argued that the Board breached his right to procedural fairness by not calling the elderly woman as a witness. Lastly, the Appellant submitted that the Board could not find Allegation 8 (making a false report) established while finding Allegation 7 (theft of a handgun) not established.

The ERC found that the Board did not issue contradictory reasons by relying on the criminal court findings. It found that the guilty plea entered by the Appellant was not derivative evidence of the Charter breach. The ERC, in application of the res judicata or relitigation principle, found that the Board committed no error in law by indicating that it was bound by the Provincial Court judge’s findings. It further found that the Board enjoyed a wide latitude in conducting the hearing and refusing to call the elderly woman to testify did not breach the Appellant’s right to procedural fairness because there was no conflict to resolve in the evidence presented by the witness. Lastly, the ERC found that the Board was not clearly unreasonable in finding Allegation 8 established because the crux of the allegation was false reporting; while the crux of Allegation 7 was theft.

The ERC recommended that the appeal be denied.

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

The Appellant faced nine allegations under various sections of the RCMP Code of Conduct for misusing the Gun Amnesty program in order to take personal possession of a prohibited firearm.

After the Appellant’s supervisor became aware of the matter, a subsequent investigation revealed a second instance of misusing the Gun Amnesty Program and a third incident in which the Appellant failed to properly account for evidence.

The Appellant contested all nine allegations. A Conduct Board (Board) found six of the nine allegations established, then excluded one based on the Kienapple Principle and ordered the Appellant to resign within 14 days or be dismissed from Force. The Appellant appealed this decision.

On appeal, the Appellant argued that the Board incorrectly relied on derivative evidence that had been excluded based on a Charter breach, had committed an error of law by determining that it was bound by a criminal conviction of possessing a prohibited firearm, breached the principles of procedural fairness by refusing cross-examination of key witnesses, and imposed a clearly unreasonable conduct measure outside the scope of the parity principle.

The appeal was referred to the RCMP External Review Committee (ERC) for review. The ERC found that the Board did not err by allowing the evidence, did not breach the relevant principles of procedural fairness, did not commit an error law, and that the Board’s decision was not clearly unreasonable.

An Adjudicator found that the Board’s decision was supported by the record, ultimately determining dismissal was a proportionate conduct measure. The appeal was dismissed.