C-121 - Conduct Authority Decision

Three RCMP members obtained screenshots from the Appellant’s reportedly open Facebook account of offensive materials she had posted. As a result, the Respondent alleged that the Appellant committed discreditable conduct, contrary to section 7.1 of the RCMP Code of Conduct (Allegation). The Appellant admitted to the Allegation. The Respondent then found the Allegation to be established. The Respondent explained in part that a reasonable person would conclude that the Appellant’s conduct could harm the RCMP’s relationship with the general public, and more particularly with the community. The Respondent went on to order a conduct measure. It consisted of a forfeiture of three days’ pay.

The Appellant made four main arguments on appeal. First, she did not receive the chance to clarify the context in which her conduct arose. Second, the Respondent failed to apply the test for determining if conduct is discreditable. Third, the Respondent’s reasons for finding that the Allegation was established were insufficient. Fourth, the conduct measure was too harsh.

The ERC addressed all four arguments.

First, the Appellant had and seized the chance to clarify the context in which her conduct arose. Her submission to the Respondent was 11 pages long and single-spaced. It not only laid out her legal arguments, but detailed how her “background, lived experiences, and education outline the framework of her intrinsic beliefs and perspectives”. She also attached letters of support stating that she was an excellent member who respected the community. If the Appellant had wished to provide more context, she could have done so in her submissions to the Respondent.

Second, the Respondent explicitly applied the reasonable person test for determining if conduct was discreditable.

Third, while the reasons in the Decision were helpful, they did not meaningfully respond to two of the Appellant’s original, central arguments. The Decision was therefore clearly unreasonable. Further to paragraph 45.16(2)(b) of the RCMP Act, the ERC recommended making the findings the Respondent should have made in response to those two overlooked arguments, as follows.

The crux of the first argument was that the RCMP put the Appellant in a position to be punished twice for the same behaviour, contrary to law. The ERC disagreed. It recommended finding that the Appellant had been in a position to receive only one punishment: the forfeiture of three days of pay. The Appellant’s superior had previously advised her to delete offensive material from her Facebook account. But that was not a “punishment”. Moreover, the superior did not order formal discipline, impose any administrative measures, or even fill out a negative performance log.

The Appellant’s second argument was that the RCMP violated her rights under section 8 of the Charter to be secure against an unreasonable search or seizure. The ERC again disagreed. It found that there could be no section 8 analysis without considerable guesswork. The Appellant never specified which act/s violated her rights, clarified how they could have been a search or a seizure, or showed how there was any expectation of privacy. Even if a section 8 analysis were possible, it is not evident how it could have resulted in the exclusion of evidence or a dismissal of the Allegation. The Appellant admitted to the Allegation and underlying conduct. In addition, a coworker had obtained evidence in her own, personal capacity that amply proved the Allegation.

The ERC went on to adopt the Respondent’s reasons, and find the Allegation to be established.

Lastly, the Appellant did not show that the decision to impose a three-day pay forfeiture required interference.

The ERC recommends allowing the appeal in accordance with paragraph 45.16(2)(b) of the RCMP Act, on the basis that the Respondent’s reasons for finding the Allegation to be established did not meaningfully address two of the Appellant’s central arguments, and therefore fell short of being sufficient. The ERC further recommends making the findings the Respondent should have made vis-à-vis the Appellant’s two overlooked arguments, also further to paragraph 45.16(2)(b) of the RCMP Act. That is, the arguments are unconvincing and the Allegation is ultimately established. Lastly, the ERC recommends dismissing the Appellant’s appeal of the conduct measure, further to paragraph 45.16(3)(a) of the RCMP Act.