C-071 - Conduct Authority Decision

This appeal stems from an online affair the Appellant had with a co-worker, another RCMP member, over several months. The Appellant’s wife found out about the online affair, informed the Appellant’s Line Officer and filed a complaint against the co-worker with the Civilian Review and Complaints Commission for the RCMP (CRCC) for using her RCMP issued device to further the affair. An investigation was launched by the CRCC. After reviewing the CRCC’s final investigation report which indicated that the Appellant also made unauthorized use of his RCMP issued device, the Respondent determined that the allegations would be best dealt with through a Code of Conduct process. Since it was determined that the previous conduct authorities learned of the incidents in November 2019, the Respondent sought an extension of time limitation to impose conduct measures, pursuant to section 47.4(1) of the RCMP Act. This request was denied. Therefore, the Respondent proceeded with the conduct meeting while indicating that, although findings on the allegations could be made, no conduct measures could be imposed regarding two of the three allegations.

The Appellant appealed the Respondent’s decision on the basis that the Respondent erred in law when she determined that findings on the allegations could still be made even though the one-year time limit to impose conduct measures had expired.  

While these proceedings were ongoing, the Federal Court and the Federal Court of Appeal rendered decisions regarding the interpretation of section 42(2) of the RCMP Act. The Courts stated that section 42(2) is to be interpreted as permitting a conduct authority to make findings on allegations after the expiry of the time limitation; however, conduct measures could not be imposed in relation to these allegations. Considering these decisions, the ERC found that the Respondent did not err and could make findings regarding Allegations 1 and 2, without imposing conduct measures.  

The ERC recommended that the appeal be denied.

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

The Appellant challenges the Respondent’s determination that findings on RCMP Code of Conduct allegations could still be made even though the one-year time limit to impose conduct measures had expired.

This appeal stems from an online affair the Appellant had with a co-worker. The Appellant’s spouse discovered the online affair, informed the Appellant’s Line Officer and filed a complaint against the co-worker with the Civilian Review and Complaints Commission for the RCMP (CRCC) for using her RCMP issued device to further the affair.

After reviewing the CRCC final investigation report which indicated that the Appellant also made unauthorized use of his RCMP issued device, the Respondent determined that the allegations would be best dealt with through a Code of Conduct process. It was determined that the investigation into some of the allegations would be initiated nearly one year following when the previous conduct authorities learned of the incidents. Consequently, the Respondent sought an extension of the time limitation to impose conduct measures for two of the three allegations pursuant to section 47.4(1) of the RCMP Act. This request was denied.

The Respondent proceeded with the conduct meeting while indicating that, although findings on the allegations could be made, no conduct measures could be imposed regarding two of the three allegations. The Respondent made findings on all three allegations and imposed conduct measures on the third.

The Appellant appealed the decision on the basis that the Respondent made an error of law. The appeal was referred to the ERC for review. While these proceedings were ongoing, the Federal Court and the Federal Court of Appeal rendered decisions regarding the interpretation of section 42(2) of the RCMP Act. The Courts stated that section 42(2) is to be interpreted as permitting a conduct authority to make findings on allegations after the expiry of the time limitation; however, conduct measures cannot be imposed in relation to these allegations. The ERC recommended that the appeal be denied. The adjudicator accepted the ERC recommendation after finding no manifest and determinative errors in the Respondent’s decision with respect to Allegations 1 and 2.

However, the adjudicator found the Respondent’s decision with respect to Allegation 3 to be clearly unreasonable, in that the reasons held the Appellant accountable for a contravention of the Code of Conduct based on the same set of facts as those used for Allegation 1, which had been deemed to be out of time. The adjudicator applied the Kienapple principle and upheld the appeal in part. The adjudicator rescinded the findings and conduct measures for Allegation 3.