C-073 - Conduct Authority Decision

The Appellant worked at a detachment. He faced seven allegations before the Respondent. Three allegations were for breaches of section 5.1 of the Code of Conduct (excessive use of force) on the basis that, on three occasions, he had deployed oleoresin capsicum (OC) spray against prisoners that were being held at the detachment. Three additional allegations were for breaches of section 8.1 (reporting activities) because he failed to document his use of the spray on each occasion. A final allegation was for a breach of section 3.3 (disobeying a lawful order) because the Appellant did not abide by the terms of his suspension order when taking personal leave without the requisite approval from a supervisor. The Respondent found that two of the allegations involving the deployment of OC spray were established, as was the allegation involving the failure to abide by the suspension order. He imposed conduct measures which included a loss of 40 days leave and 2 days pay.

The Appellant was also criminally charged in a Court of Justice with two counts of assault with a weapon based on the same incidents involving OC spray that were established in the conduct proceeding. One count was eventually stayed and the Appellant was acquitted on the other. In the criminal proceeding, the Crown’s expert was the same person who had produced an expert report for the RCMP in the conduct proceeding.

On appeal to the ERC, the Appellant only appealed the Respondent’s decision in respect to the two allegations involving the deployment of OC spray. He also submitted new evidence and submissions as a result of the criminal trial. In particular, he submitted a copy of the Court of Justice’s decision. The ERC interpreted his arguments as comprising the six following grounds of appeal:

    -       The Respondent erred in finding that putting the prisoners on suicide watch was a viable option;

    -       the Respondent did not consider the contradictions in the expert reports;

    -       the Respondent did not consider the impact of the failure to follow the use-of-force protocol;

    -       the Respondent did not consider that the RCMP’s policy regarding the external investigation of criminal allegations against members was ignored;

    -       the Respondent did not give sufficient weight to the Appellant’s relation with the community; and

    -       the judgment from the Court of Justice supports the fact that the decision was based on incomplete information.

As a preliminary matter, the ERC found that the new evidence was admissible because it met the criteria set out in Palmer v. The Queen, 1979, [1980] 1 SCR 759 (Palmer).

With respect to the six grounds of appeal, the ERC first determined that the Respondent’s finding that suicide watch was a viable option was not “clearly unreasonable” because the policy in force during the relevant period permitted guards to enter cells in emergency situations.

Second, it found that the Respondent has considered both expert reports and that he had discussed each of them. It was “clear from his reasons that the Respondent was responsive to the record before him” because he provided explanations for preferring one of the expert reports over the other.

Third, while the ERC was of the view that there were issues which were “less than ideal” in the procedure that was followed, it found that the Appellant has not demonstrated how or to what degree the Respondent’s decision was affected by the failure to follow the use-of-force protocol, including specifically the failure of one Staff Sergeant to comment or reprimand the Appellant on his actions at the time one of the incidents occurred.

Fourth, with respect to the argument that the RCMP should have sought a third party for the investigation, the ERC found that the Appellant had not developed this argument in his submission and it was therefore unclear how the Respondent erred on this front, or even if the issue had been raised before him at the Conduct Meeting.

Fifth, the ERC found that the Appellant’s standing in the community and with the mayor was given consideration by the Respondent as a mitigating circumstance in determining the appropriate conduct measures.

Finally, the ERC found that in the context of conduct proceedings, it is the decision-maker’s appreciation of the relevant facts that matters. On this basis, it was clear that the Respondent was privy to the factors which the Court of Justice indicated the Crown’s expert did not consider. The ERC went on to raise the prospect that relitigation of the facts that were addressed by the Court of Justice could amount to an abuse of process. It found that the judge did not make specific factual findings with respect to the reasonableness of force used by the Appellant during the events at issue and that, for this reason, the principles of abuse of process outlined by the Supreme Court of Canada in Toronto (City) v. CUPE do not preclude the relitigation of the facts that were before the Respondent. The ERC distinguished this situation from its Findings and Recommendations in C-2022-007 (C-070). 

The ERC recommends that the Commissioner dismiss the appeal.