C-054 – Conduct Board Decision

Between mid-June or July 2016 to late November 2016, the member had an affair with a member of the public (Ms. X). Members of the detachment had seen the member's police vehicle out of his patrolling area while he was on duty and reported the issue to the detachment Commander. It was learned that Ms. X resided in this area where the Appellant's police vehicle was seen. The detachment Commander met with the member and ordered him not to attend the residence of Ms. X while on duty. The member was charged with four allegations of breaching the Code of Conduct. During the investigation, another allegation was added for lying to the investigator.

After having received the investigation report, the Conduct Authority ordered that a Conduct Board (Board) be instituted as she was seeking the member's dismissal. After reviewing the material filed, the Board indicated that no further information or testimonies were necessary. The Board found the allegations established. It requested that the parties file their material on conduct measures. Ultimately, the Board indicated that a conduct measures hearing would not be necessary as it had all the information, including the parties' submission. After canvassing the evidence on the conduct measures and the parties' submissions, the Board imposed a forfeiture of 20 days' pay for Allegation 1, but also ordered the member to resign within 14 days or be dismissed.

The Appellant appealed the conduct measures imposed by the Board. He argues that the Board breached his right to procedural fairness by not holding a hearing on conduct measures. He submits that the Board should have called witnesses and assessed their credibility in regards to impact and support letters provided to the Board as there was contradictory evidence. The Appellant further argues that the Board incorrectly assessed the weight it gave to the aggravating and mitigating factors; and lastly, he argues that he could not be imposed 20 days' forfeiture of pay while at the same time being dismissed.

The ERC found that the Appellant could not raise on appeal the issue of the conduct measures hearing because it is a procedural issue that should have been raised when the Board informed the parties that it was working on the written decision. The Appellant was aware that there was no hearing on conduct measures, yet did not raise an objection to this issue. The ERC further found that the Board does not have the obligation to call witnesses on behalf of a party if that party does not request it or submit a witness list. Further, because the Board had not given much weight to the impact and support letters, it did not have to assess the credibility of the authors of those letters. The ERC found that considerable deference was owed to the Board's assessment of the mitigating and aggravating factors. In his appeal, the Appellant was requesting that these be re-weighed; however, the ERC found that it was not the role of the Final Adjudicator to re-weigh these factors. Lastly, the ERC found that the RCMP Act and Commissioner's Standing Orders (Conduct) did not authorize the Board to impose both a dismissal and a forfeiture of pay. Therefore, the Board's decision could only be interpreted as imposing the Appellant's dismissal.

The ERC recommended that the appeal be partially upheld on the ground of the 20 days' forfeiture of pay; but be dismissed on all other grounds.

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

An RCMP conduct board (Board) determined that the Appellant had contravened sections 3.3 (by not carrying out a lawful direction) and 8.1 (by not providing complete, accurate and timely accounts of responsibilities and performance of duties) of the Code of Conduct after finding four of five allegations against the Appellant to be established.

The ERC recommended that the appeal be partially allowed.

After completing his probationary period, the Appellant had an extramarital affair with a member of the public wherein he engaged in sexual, intimate or romantic activity with Ms. X at her residence while he was on duty. Furthermore, the Appellant failed to provide complete, accurate and timely accounts pertaining to the carrying out of his responsibilities and the performance of his duties.

The Appellant met with the detachment Commander and was subsequently ordered not to attend Ms. X’s residence while on duty and that engaging in an extramarital affair while on duty might bring the reputation of the RCMP into disrepute.

On May 1, 2019, an adjudicator provided a direction on the preliminary issue of standing consolidating the three appeals related to the matter. The appeal was referred to the ERC and recommended that the appeal be dismissed for being filed outside of the statutory time limit. The ERC did not pronounce on the merits.

This is the second ERC Report relating to the Appellant’s appeal of the Board’s decision. In the first report (ERC C-2020-025 (C-046)), the ERC had not reviewed the merits of the appeal, and had determined that the Appellant had filed his appeal outside the statutory time limit, and there were no exceptional circumstances to justify a retroactive extension.

However, although a conduct appeal adjudicator agreed that the appeal was filed outside the statutory time limit, in his view there was a reasonable explanation for the delay, and gave the Appellant the option of having the merits of his appeal dealt with directly by me or to have his file returned to the ERC for a recommendation on the merits. The Appellant chose the latter option and raised the following grounds of appeal: the Board breached procedural fairness by not holding a hearing on conduct measures; the Board failed to assess the credibility of the authors of the support letters when there was conflicting evidence and erred in its assessment of the mitigating and aggravating factors and did not abide by the principle of parity of conduct measures; and, the Board erred in imposing a 20-day forfeiture of pay in addition to dismissal.

Even if the ERC had found that the Appellant could raise the issue on appeal, the Chair concluded that the Board’s decision to proceed without a hearing did not deprive the Appellant of a procedurally fair process. The Member Representative had indicated that her case was complete and the Appellant declined to address the Board in person.

The ERC recommends that I partially allow the appeal on the 20-day forfeiture of pay, but deny the other grounds. I agree.