C-106 - Conduct Board Decision

This is an appeal by a Conduct Authority (Appellant) requesting that the subject member (Respondent) be directed to resign within 14 days, and in default of that, his dismissal from the Force.

An allegation of discreditable conduct contrary to section 7.1 of the RCMP Code of Conduct was brought against the Respondent (Allegation 1) in relation to his off-duty conduct towards another RCMP member, following a work-related social event where alcoholic beverages were consumed. The particulars for Allegation 1 detailed several incidents and contained references to sexual assault. The Respondent appeared before a Conduct Board, and Allegation 1 was deemed established. As conduct measures, the Board imposed a financial penalty of 40 days’ pay against the Respondent. The Board also imposed an ineligibility for promotion for a period of two years and a direction to work under close supervision for a period of one year, both from the date of the Respondent’s reinstatement.

The Appellant appealed the Board’s Decision (Decision), arguing that it was reached in a manner that contravened the applicable principles of procedural fairness, was based on an error of law, and was clearly unreasonable. In the Appellant’s view, the conduct measures imposed were clearly unreasonable.

Although the Appellant indicated that he was appealing the conduct measures, the ERC found that the scope of the appeal was broad enough to also encompass the Board’s findings on Allegation 1.

The Appellant argued that the Decision contained information that was not factually accurate. The ERC found that this ground of appeal had merit. However, the ERC also found that the errors of fact were insufficient to cause the Decision to be clearly unreasonable.

Further, the Appellant argued that the totality of the evidence was not considered by the Board. However, the ERC found that the Appellant had seemingly made submissions to the contrary. The ERC determined that this ground of appeal lacked merit; the well-established presumption that the Board had considered and weighed all of the evidence was not rebutted.

The Appellant argued that the Board issued erroneous findings regarding the victim’s evidence and failed to properly acknowledge her testimony. However, the ERC found these arguments lacked merit, and determined that the Decision outlined several impacts caused to the victim.

In addition, the Appellant argued that the Board erred in not finding that the Respondent engaged in sexual assault. The Appellant also argued that the ERC has held that the test set out in R. v. Ewanchuk, [1999] 1 S.C.R. 330 (Ewanchuk) should guide the RCMP regarding sexual assault allegations. In light of the Federal Court’s decision in MacLeod v. Canada (Attorney General), 2013 FC 770, the ERC found that the Board was required to apply the Ewanchuk test within its Decision. The ERC found that the Board did not explicitly apply the Ewanchuk test, and its reasons demonstrated an implicit application of two out of three Ewanchuk principles. However, the Board’s failure to apply the Ewanchuk test as a whole constituted an error of law. The ERC determined that the Respondent’s conduct constituted sexual assault, Allegation 1 was established, and the Ewanchuk test was met in this case. The ERC confirmed that the test for discreditable conduct was also met in relation to the Respondent’s misconduct.

The ERC considered the parties’ arguments on conduct measures, and found that the appropriate conduct measure would be an order that the Respondent resign within 14 days, and in default of that, his dismissal.

The ERC recommends that the appeal be allowed on the basis that the Decision contained an error of law. The ERC also recommends that the Respondent be ordered to resign within 14 days, and in default of that, the Respondent be dismissed.