C-127 - Conduct Authority Decision

As part of an investigation, the Appellant searched a digital recorder and discovered a video recording of an alleged sexual assault. Sexual assault charges were subsequently laid against the perpetrator. However, the assigned Crown Attorney later withdrew the charges based on his belief that it was likely that the video recording of the sexual assault would be excluded at trial due to a section 8 breach of the Canadian Charter of Rights and Freedoms. The victim of the sexual assault filed a public complaint with the Civilian Review and Complaints Commission for the RCMP concerning the Appellant’s search of the digital recorder. A corresponding RCMP Code of Conduct investigation took place after the public complaint investigation.

The Respondent determined that the Appellant improperly searched the digital recorder. As a result, the Respondent found that the Appellant engaged in a neglect of duty contrary to section 4.2 of the Code of Conduct, and imposed conduct measures against the Appellant in the form of a forfeiture of eight days’ pay, along with directions to complete training related to search and seizures.

On appeal, the Appellant asserted that the Respondent’s finding that the allegation was established was clearly unreasonable. The Appellant believed that the alleged improper search was a performance issue, that the search was potentially allowable, and that the Respondent failed to consider that the Appellant’s search led to the discovery of the sexual assault.

Additionally, the Appellant asserted that the Respondent imposed conduct measures against him outside the one-year limitation period prescribed by subsection 42(2) of the RCMP Act.

The ERC found that the Respondent properly considered the applicable legal test for allegations under section 4.2 of the Code of Conduct to find that the situation was a conduct matter, rather than a performance issue. Additionally, the ERC found that the Respondent’s determination that the Appellant engaged in a neglect of duty was not based on the lawfulness of the search, but instead turned on his finding that the Appellant had a duty to ensure that proper procedures were followed in obtaining and executing a search warrant and that the Appellant failed to obtain proper direction pertaining to the search. As well, the ERC found that there was no error in the Respondent’s treatment of the discovery of the sexual assault, as he confined his consideration of the outcome of the sexual assault trial to his assessment of the conduct measures. As a result, the ERC concluded that the decision on the allegation was not clearly unreasonable.

However, the ERC found that the decision on the conduct measures was clearly unreasonable because the Respondent failed to address a key argument made by the Appellant regarding the applicability of the limitation period found at subsection 42(2) of the RCMP Act. The ERC further found that during the public complaint investigation, and more than a year prior to the conduct meeting, a conduct authority in the Appellant’s chain of command gained the requisite knowledge to initiate a Code of Conduct investigation pursuant to subsection 40(1) of the RCMP Act. Consequently, the record indicated that the Respondent imposed conduct measures against the Appellant outside the applicable one-year limitation period. 

The ERC recommends that pursuant to paragraph 45.16(2)(a) of the RCMP Act, the Commissioner dismiss the appeal with respect to the allegation and confirm the Respondent’s finding that the allegation was established.

The ERC further recommends that pursuant to paragraph 45.16(3)(b) of the RCMP Act, the appeal be allowed with respect to the conduct measures and that the Commissioner rescind the imposed conduct measures given that the Respondent was not authorized, pursuant to subsection 42(2) of the RCMP Act, to impose them on the date the Decision was issued.