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C-066 - Conduct Board Decision

The Appellant was charged with two allegations. The first allegation, under section 7.1 of the Code of Conduct, set out three incidents in which the Appellant was alleged to have applied unwanted physical force on a sexual partner. The other two incidents involved non-consensual sex acts, which occurred during what were otherwise consensual acts of sexual intercourse. The second allegation, also under section 7.1 of the Code of Conduct, alleged that the Appellant uttered threats to kill someone and/or cause serious bodily harm. Following a contested hearing, the Conduct Board (Board) found both allegations to be established and ordered the Appellant be dismissed. 

The Appellant appeals the findings of the Board on the allegations and the conduct measure imposed. He argues that the particulars contained in the Notice of Conduct Hearing were insufficient to allow him to make full answer and defence. He further argues that the Board accepted and relied on contested facts to establish witness credibility and reliability, misapplied the principles related to alibi defence, and reversed the onus of proof on the Appellant.

ERC Findings

The ERC found that the Appellant could not raise procedural issues with the Notice of Hearing at the appeal stage without having raised it before the Board. Further, the Appellant has not demonstrated that the Board erred in its credibility findings. Lastly, the ERC found that the Board had not placed a reverse onus on the Appellant, but that he bore an evidential burden to support his position.  

ERC Recommendation

The ERC recommended that the appeal be denied.

Commissioner of the RCMP Decision dated April 28, 2023

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

The Appellant faced two allegations under section 7.1 of the RCMP Code of Conduct, one for applying unwanted physical force and non-consensual sexual acts on a partner, and one for uttering threats to kill or cause serious bodily harm.

The Appellant contested both allegations. A Conduct Board found the allegations established and directed that the Appellant be dismissed from the Force. The Appellant appealed this decision.

On appeal, the Appellant argues that the particulars of the Notice of Conduct Hearing were insufficiently detailed, preventing him from making full answer and defence; that the Conduct Board erred in its determination of witness credibility and reliability; that the Conduct Board erred in its application of the principles related to alibi defence; and that the Conduct Board reversed the onus of proof. Accordingly, the Appellant sought the Conduct Board’s findings and imposed conduct measures to be overturned.

The appeal was referred to the ERC for review. The ERC recommended that the appeal be dismissed, finding that the Appellant was precluded from raising on appeal the alleged procedural issue with the Notice of Conduct Hearing; that the Appellant did not demonstrate that the Conduct Board erred in its credibility assessment; and that the Conduct Board did not place a reverse onus on the Appellant, but that the latter bore an evidential burden to support his position.

An adjudicator concurred with the ERC’s analysis and findings, and concluded that the Conduct Board’s decision was supported by the record and not clearly unreasonable, was not tainted by an error of law nor reached in contravention of the applicable principles of procedural fairness. The appeal was dismissed.

Between January 2014 and October 2017, several events took place that the Appellant perceived as harassment by the Alleged Harasser.  According to the Appellant, the Alleged Harasser had a negative influence on his career for several years.  In his view, this caused him to be discouraged, depressed and devoid of all ambition within the RCMP.

As the decision-maker on the harassment complaint, the Respondent did not mandate an investigation and dismissed the complaint on the grounds that the alleged behaviour did not amount to harassment of the Appellant.

The Appellant appealed the matter on the grounds that the Respondent’s decision was reached in a manner that contravened the applicable principles of procedural fairness, was based on an error of law and was clearly unreasonable.  He argued that the Respondent was not impartial, failed to conduct an overall assessment by breaking down the series of events and erred by failing to mandate an investigation to gather evidence.

The case was referred to the RCMP External Review Committee (ERC).  After reviewing the grounds of appeal, the ERC found that the Respondent should have mandated an investigation to fully understand the situation.  The ERC found that the failure to mandate an investigation resulted in the Respondent failing to obtain relevant information, which meant he was unable to make an informed decision.  The ERC found that the Respondent’s decision was therefore clearly unreasonable.  Consequently, the ERC recommended that the appeal be allowed.

The Adjudicator determined that the Respondent should have indeed pursued an investigation to obtain a minimum level of information and that the failure to do so prevented a fully informed decision from being made on whether or not harassment occurred.  The Adjudicator found that the decision was therefore clearly unreasonable and allowed the appeal.

The Adjudicator remitted the matter to a new decision-maker with directions that an investigation be conducted.

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2023-08-21