C-134 - Conduct Appeals

The Appellant helped arrest a suspect (Mr. X) who was well known to the police. Mr. X went on to escape custody (Incident). About two weeks later, a member involved in the arrest created a Police Reporting and Occurrence System (PROS) File describing the Incident. The Appellant then added a Supplementary Occurrence Report outlining his recollections. Both members indicated that they placed Mr. X under arrest, let him enter his home to change clothing, then realized he had fled their custody. Upon reviewing these entries, a supervisor prepared a Situation Report in which he identified significant concerns with how the Incident had been reported. He explained that nobody reported the Incident to the Operational Communications Centre or to a supervisor, or generated a file for the “Escape Lawful Custody”.

The Respondent alleged that the Appellant “failed to provide complete, accurate, and timely accounts pertaining to the carrying out of his responsibilities and the performance of his duties”, in breach of section 8.1 of the Code of Conduct (Allegation). He specified that the Appellant had voluntarily withheld relevant information, and was not forthright about Mr. X’s escape. Following an investigation and a Conduct Meeting, the Respondent found the Allegation to be established (Decision). He gave the Appellant a conduct measure consisting of a three-day forfeiture of pay.

On appeal, the Appellant argues that the Respondent:

    i.      held him responsible for Mr. X’s escape, which was not part of the Allegation;

    ii.     held him to an unknowable standard;

    iii.    misconstrued evidence;

    iv.   gave insufficient reasons; and

    v.     considered improper factors when choosing the conduct measure.

The Appellant relies on an argument and evidence that he did not present to the Respondent. 

The ERC concluded that it would be inappropriate to entertain the Appellant’s new argument on appeal. The Appellant did not make this argument to the Respondent, despite being aware of it before the Decision. He also did not point to any exceptional circumstances that prevented him from making the argument to the Respondent prior to the Decision.

The ERC further concluded that it would be inappropriate to admit the Appellant’s new evidence on appeal. The Appellant could have provided some of this evidence at the Conduct Meeting by way of due diligence. In addition, none of the new evidence would have reasonably affected the Decision. This was so because the new evidence did not shed light on certain key particulars.

The ERC then found that the Appellant’s grounds of appeal were unsuccessful.

First, the Respondent did not hold the Appellant to account for Mr. X’s escape. Rather, he held the Appellant responsible for the “voluntary withholding of pertinent information and a failure to be forthright”. This explicit finding was faithful to the Allegation and to the particulars set forth in the Notice of Conduct Meeting. As a result, it was faithful to the principles of procedural fairness.

Second, the Respondent did not hold the Appellant to an unknowable standard. The Appellant was required to be familiar with his reporting obligations under section 8.1 of the Code of Conduct. He also received detailed notice of the specific misconduct he allegedly committed.

Third, the Respondent did not misconstrue the evidence the Appellant thought he misconstrued. The record revealed that one such piece of evidence was not even before the Respondent prior to the Decision. Moreover, contrary to the Appellant’s belief, the Respondent relied on at least three different pieces of evidence in support of the conclusion that the Allegation was made out.

Fourth, the Decision deserved the significant deference it would typically be owed in an analysis of whether it was clearly unreasonable. The Respondent’s reasons were not especially detailed. But they satisfactorily addressed key issues and positions. They also connected the evidence and submissions to the Allegation and the conduct, and to the alleged Code of Conduct breach.

Lastly, the mitigating and aggravating factors the Appellant questioned on appeal do not appear to have materially affected the Respondent’s choice of conduct measure.

The ERC recommends dismissing the appeal.