C-079 - Conduct Authority Decision

The Appellant is appealing the Respondent’s decision finding that he had contravened sections 8.1 and 8.3 of the RCMP Code of Conduct by making a false statement and failing in his duty to report the contravention of another member as soon as feasible. Four allegations were initially filed against the Appellant, after which a fifth allegation was added by the Respondent following a Code of Conduct investigation. The Respondent found that two of the five allegations were established (Allegations 4 and 5) and imposed a financial penalty of three days’ pay and a period of ineligibility for promotion of six months.

On appeal, the Appellant argues that the Respondent’s decision was clearly unreasonable since the Respondent failed to consider important evidence with respect to Allegation 4 and the decision with respect to Allegation 5 was not based on any evidence and failed to address a number of important elements. The Appellant adds that the Respondent’s determination that Allegation 5 was [translation] “established in part” is an error of law. He also raised a preliminary matter, namely that the time limit under subsection 42(2) of the RCMP Act had not been respected for Allegation 5. In addition, he argues that there was a breach of procedural fairness because the Respondent failed to consider the violation of the right to examine and cross-examine a witness and because the conduct meeting was biased. 

With respect to the preliminary matter, the ERC found that the time limit under subsection 42(2) had been respected. The ERC was of the opinion that the Appellant was not referring to the allegations at issue in this case in this submission.

With respect to the submission that there is a right to examine and cross-examine witnesses, the ERC found that a number of the criteria arising from case law do not weigh in favour of a right to examine and cross-examine a witness in a conduct process. In addition, the Supreme Court does not consider the right to examine a matter of course in the administrative context. The ERC added that the Appellant had failed to explain how the opportunity to examine or cross-examine a witness was necessary or beneficial to him in this case.

The ERC found that there was no bias resulting from the fact that the party rendering the decision had [translation] “already decided” on a prima facie basis that an allegation was established or from the fact that the person who launched the investigation had the same rank as the party who rendered the decision. The ERC also found that the Appellant had failed to explain his submission that the Line Officers were biased in favour of the employer. In addition, the Respondent’s use of the word [translation] “satisfactory” to describe the Appellant’s career was not irrelevant in the context.

With regard to the submission that some evidence had not been considered in Allegation 4, the ERC found that the Appellant failed to demonstrate that the decision was clearly unreasonable in this respect. Notably, while anonymous complaints are allowed, this does not mean that it is permissible for an individual with knowledge of the person who made the anonymous complaint to lie to investigators.

With respect to the submission that there is no evidence establishing Allegation 5, the ERC found that the facts cited by the Respondent in her decision were indeed on file and, as a result, the evidence was able to support the finding of fact.

With regard to the submission that the Respondent did not address a number of important elements with respect to Allegation 5, the ERC considered the various elements raised by the Appellant, including in his timeline, and found that the decision was not clearly unreasonable in this respect.

Finally, the ERC found that the Appellant was correct to object to the notion of an allegation “established in part,” but that does not mean that the decision was clearly unreasonable. The Respondent demonstrated through her reasons that she was of the opinion that it was in fact an allegation established within the meaning of the statutory provision and, therefore, it was reasonable to find that the allegation was established based on the Appellant failing in his duty to report.

The ERC recommends that the Commissioner dismiss the appeal.