C-060 - Conduct Authority Decision

The Respondent alleged that the Appellant offended the Code of Conduct by failing to take appropriate action to help a member in possible danger, and by disobeying an order not to leave work before her shift ended (Allegations). Just hours before the Conduct Meeting, the Appellant received a copy of a roughly two hours 20-minute recording. She believed the recording refuted key evidence against her. Following the Conduct Meeting, the Respondent issued a decision that the Allegations were established, and that the Appellant was to forfeit 56 hours’ pay in total.

The Appellant filed an appeal. She later received disclosure that included emails between the Respondent and his conduct advisor. These emails concerned the decision-making process.

The Appellant took numerous positions on appeal. However, only two positions were vital to the ERC’s recommendations:

i.              the Respondent predetermined that the Allegations were established; and

ii.             the Respondent would not hear her on the Allegations at the Conduct Meeting.

The Respondent did not ask for permission to challenge the Appellant’s evidence in support of these positions even though the case manager had advised him in writing of his right to do so.

The ERC found that the decision-making process was procedurally unfair. 

To begin, the Respondent had a reasonable apprehension of bias against the Appellant. The lion’s share of the evidence showed that the Respondent:

• received from his conduct advisor a draft decision, post-dated the day of the Conduct Meeting, stating that the Allegations against the Appellant were “established”;

• told the advisor that he “will” impose conduct measures that fall within a certain range;

• announced that the Allegations were established at the Conduct Meeting, and then permitted the Appellant to speak only to the issue of conduct measures; and

• issued a decision that is largely the same as the draft decision, but with reasons added.

An informed person who reviews this matter realistically and practically, and thinks it through, would believe it was more likely than not that the Respondent did not decide the case fairly.

Furthermore, the Respondent denied the Appellant a full opportunity to be heard. He did this in two ways. First, he restricted her submissions to written submissions by opening the Conduct Meeting with a declaration that the Allegations were established, and then pivoting to another issue without giving her an opportunity to speak to the Allegations. This was contrary to ERC and RCMP case law indicating that members cannot be limited, without their consent, to making only written submissions to a conduct authority. Second, the Respondent declined to postpone the Conduct Meeting after he learned that the Appellant did not receive a copy of the recording until just hours before that meeting. The recording was relevant to issues to be decided because it captured incidents that resulted in the Allegations. Moreover, the Respondent relied on it in making his decision. The Appellant was in turn prevented from preparing a case that sufficiently addressed a long recording that she could have used to gauge the accuracy of other evidence.

The ERC concluded that the Respondent should have found that:

i.              he had to step down as the decision-maker because he predetermined the case; or

ii.             the Allegations were not established because the Appellant did not receive a full opportunity to make                                    submissions on them.

The RCMP Act seemingly requires that procedural unfairness during a proceeding before a conduct authority be cured on appeal (where possible) rather than through a new hearing. The Appellant’s loss of her one and only chance to provide oral submissions cannot be made right on appeal. An attempt to make it right would signal that a conduct authority need not respect the basic principles of impartiality and hearing the other side. The Allegations in this case are troubling.  There is also some evidence to support them. However, a member’s right to have a neutral conduct authority fairly hear and decide their case must be upheld. Otherwise, what is the purpose of the conduct process, or of the conduct meeting in particular?

The ERC recommended that the Commissioner allow the appeal, find that the Allegations are not established, and overturn the conduct measures that were imposed by the Respondent.

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

The Appellant appeals the decision of the Respondent, who found that two allegations raised against her were established, namely for failing to take appropriate action to aid a colleague exposed to potential, imminent or actual danger, contrary to section 4.2 of the Code of Conduct, and for failing to comply with a lawful direction, contrary to section 3.3 of the Code of Conduct. Based on these findings, the Respondent ordered, collectively, the forfeiture of 56 hours of pay.

The Appellant contends that the Respondent’s decision contravenes the principles of procedural fairness and is clearly unreasonable because the Respondent allegedly predetermined the matter prior to the conduct meeting, prevented the Appellant from making oral submissions on the allegations, and did not provide the Appellant sufficient time to examine late disclosure. The Appellant requests that the decision be vacated and the financial penalties returned.

The ERC recommended that the appeal be allowed based on a breach of procedural fairness. Finding that the Appellant’s right to procedural fairness was irreparably harmed, the ERC recommended that the Allegations be deemed not established upon redetermination.

The adjudicator allowed the appeal on the basis that the Respondent’s actions caused a reasonable apprehension of bias, resulting in a breach of procedural fairness. However, contrary to the ERC, the adjudicator found that the breach could be cured on appeal. The adjudicator then rendered the decision that the Respondent should have made, found the allegations established, and imposed as conduct measures the forfeiture of 24 hours of pay for Allegation 1 and 8 hours of pay for Allegation 2.