C-116 – Conduct Authority Decision

The Appellant appealed the decision of the Professional Responsibility Officer, Review Authority (Respondent) who found that an allegation of sexual harassment contrary to section 2.1 of the Code of Conduct was established. This allegation stems from sexually suggestive text messages the Appellant sent to one of his subordinates when occupying the rank of sergeant, including a photograph of himself wearing underwear with an erect penis.

The decision under appeal is a review of a decision made by a Level III Conduct Authority finding that the allegation was not established on a prima facie bases. In accordance with his authority to review decisions made by conduct authorities, the Respondent found that the Conduct Authority’s decision was clearly unreasonable. The Respondent rescinded the Conduct Authority’s finding and substituted it with a finding that the allegation was established. The Respondent imposed several conduct measures, including a demotion from sergeant to constable and an ineligibility for promotion, both for a period of one year.

On appeal, the Appellant submitted that the Respondent’s decision was reached in a procedurally unfair manner for the following reasons: he was not provided with the reasons the review was initiated before the decision was reached and was denied disclosure of documents pertaining to the review, the scope of the allegation was modified by the Respondent, and he was not provided with the opportunity to attend a conduct meeting. The Appellant also submitted that the decision is based on an error of law for two reasons: the Respondent acted outside his jurisdiction by conducting a review of a prima facie finding, and the review was initiated before an extension of time limitation was sought. Lastly, the Appellant submitted that the decision is clearly unreasonable for the following reasons: the Respondent refused to address his arguments relating to the fairness of the review process and disagreed that fresh evidence was needed to justify the review, and also failed to provide sufficient reasons with respect to his assessment of credibility.

With respect to procedural fairness, the ERC found that the Appellant did not establish that the Respondent’s refusal to provide additional information and disclosure on his decision to initiate a review constitutes a breach of procedural fairness. The ERC also found that by modifying the description of the allegation from “sexual misconduct” to “sexual harassment”, the Respondent did not alter the scope of the allegation but rather ensured that the allegation was coherent prior to conducting his review. Lastly, the ERC found that the Appellant did not establish that his right to procedural fairness was breached by the absence of a formal conduct meeting.

Turning to the alleged errors of law, the ERC found that the Respondent did not commit an error of law by conducting a review on a prima facie finding or by initiating the review prior to obtaining an extension to the limitation period.

Concerning the Appellant’s arguments that the Respondent made clearly unreasonable findings, the ERC found that the Respondent did not improperly dismiss the Appellant’s argument on the requirement for fresh evidence or new arguments to conduct the review since the review process is not a reconsideration. The ERC also found that the Respondent’s reasons, read as a whole, sufficiently explain his assessment of credibility and conclusion that the Conduct Authority’s decision was clearly unreasonable.

The ERC recommended that the appeal be dismissed.

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

The Appellent, while a sergeant, was alleged to have sexually harassed a subordinate. A conduct investigation was initiated. A Level III Conduct Authority found that there was insufficient evidence to establish on a prima facie basis that the Appellant had breached the Code of Conduct.

The Respondent, acting as the designated Review Authority, gave notice to the Appellent that they intended to review the decision as they believe that the decision was clearly unreasonable and that it was in the public interest to do so. After receiving the Appellent's submission, the Respondent issued a decision in which they found that the allegation was established and imposed serious conduct measures.

This appeal was filed to dispute the Respondent's finding. The matter was referred to the RCMP ERC for findings and recommendations. It recommmended that the appeal be dimissed.

The Commissioner finds that the Appellent did not demonstrate that the Respondent's decision contraves the applicable principles of procedural fairness, is based on an error of law or is clearly unreasonable. As a result, the Commissioner dismisses the appeal.