C-075 - Conduct Authority Decision

The Appellant appealed the Respondent’s decision that he breached section 4.1 of the RCMP Code of Conduct. He also challenged the conduct measures imposed of 9 days’ pay.

The Appellant argued that the Respondent had no jurisdiction to investigate and in turn, to consider Allegation 2 and 3 because no Mandate Letter was ever issued in this regard. The Appellant also took issue with the Respondent’s involvement in the investigation, and the lack of disclosure of key evidence, arguing that the Respondent exhibited both perceived and actual bias, and that there was a breach of procedural fairness. He argued that the Respondent’s decision should therefore be quashed. In the alternative, he argued that the allegations were not established on a balance of probabilities, and that the conduct measures imposed in the aggravated range were clearly unreasonable.

The ERC found that subsection 40(1) of the RCMP Act authorized the Conduct Authority to investigate as he considered necessary to determine whether the Appellant had breached the Code of Conduct. That being said, the ERC found that there was a breach of procedural fairness for non-disclosure of relevant evidence pertaining to Allegations 2 and 3, and that the Respondent’s decision regarding those allegations should therefore be quashed. Although there was a breach of procedural fairness, the ERC determined that the Appellant had a full and fair opportunity to consider and address the undisclosed evidence pertaining to those allegations during the appeal. The ERC therefore recommends that the Commissioner exercise his authority under paragraph 45.16(2)(b) of the RCMP Act to find Allegations 2 and 3 not established, and to rescind the conduct measures imposed. Given these recommendations, it was unnecessary for the ERC to consider the issues of bias and whether the conduct measures imposed were reasonable. 

The ERC recommended that the appeal be allowed.

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

The Appellant appeals the decision of the Respondent, who found that two allegations raised against the Appellant were established, namely for misuse of sick leave and failing to report for duty, contrary to section 4.1 of the Code of Conduct. Based on these findings, the Respondent ordered the forfeiture of a total of nine days of pay.

The Appellant contends that the Respondent’s decision contravenes the principles of procedural fairness, was based on an error of law, and is clearly unreasonable because the Respondent allegedly failed to put evidence before him to the Appellant; conducted investigations beyond the scope of the Conduct Investigation Mandate Letter; and, failed to obtain a production order before receiving evidence from a third party, among other issues.

The ERC recommended that the appeal be allowed and the Respondent’s decision quashed, based on a breach of procedural fairness in that the Respondent failed to disclose relevant evidence. When it comes to redetermination of the matter, the ERC recommended that the allegations be found not established and that the conduct measures be rescinded.

The adjudicator allowed the appeal on the basis that the Respondent’s decision was reached in a manner that contravened the applicable principles of procedural fairness. Upon redetermination, the adjudicator found the allegations not established and rescinded the conduct measures imposed by the Respondent.