C-100 - Conduct Authority Decision

The Appellant was the detachment commander for a small detachment when a junior member transferred to the detachment. During the new member’s time in the detachment, she attended two courses away from the detachment area. In both instances, the Appellant was also in the same area. At both events, the Appellant and the junior member engaged in phone calls and text messages regarding their plans when on their free time. A few months later, the member became pregnant and began administrative duties. The member, while on leave, filed a harassment complaint against the Appellant.

The Respondent initiated a harassment investigation into the Appellant. The Respondent found that three alleged incidents established a prima facie contravention of the Code of Conduct and referred the matter to a Conduct Meeting. After the Conduct Meeting, the Respondent found the Appellant contravened section 2.1. of the Code of Conduct.

The Appellant appealed the decision and challenged that the Respondent ordered conduct measures after the one year limitation to do so. In order to support his time limit argument, the Appellant requested disclosure. The Appellant and Respondent did not agree on the disclosure which resulted in the parties submitting arguments on the issue to an adjudicator. The Adjudicator issued a direction that the Appellant was not entitled to further disclosure as the Appellant received the necessary disclosure and the Appellant did not properly raise the time limit issue with the Respondent at the Conduct Meeting. The Adjudicator gave the Appellant an opportunity to challenge the disclosure direction with the ERC. The Appellant contested that he failed to raise the timeliness issue with the Respondent.

The Appellant also argued that the decision and measures were clearly unreasonable. 

The ERC found that the Appellant did not require additional disclosure. First, the Appellant had already received the necessary disclosure. The Appellant did not demonstrate that any additional documents existed. Second, the ERC found that the Appellant did not raise the timeliness issue before the Respondent. The Conduct Policy allows for the submission of written or oral arguments to the Respondent, which, on the topic of timeliness, did not occur.

The Appellant argued that he or his representative raised the issue with the Respondent’s proper representative. The ERC found that the alleged recipients of the arguments were not the identified representative of the Respondent in the Notice of Conduct Meeting. Rather the recipients were other members who were not responsible to receive arguments or advance them to the Respondent. The Harassment Advisor, as one of the two recipients, satisfied their duty by reviewing the issue prior to the Conduct Meeting. However, it remained the responsibility of the Appellant to raise the matter with the Respondent. As a result of this finding, the ERC found that the issue should not be admitted as a new issue on appeal.

The ERC found that the Respondent’s decision was not clearly unreasonable. The Appellant challenged the findings related to the allegation. In reviewing these arguments, the ERC found that the Appellant requested that the evidence be reweighed, which is beyond the scope of the appeal.

The ERC found that the conduct measures were also not clearly unreasonable. The Appellant did not present any evidence or argument that would establish such a finding. 

The ERC recommends that the appeal be dismissed.