C-146 - Conduct Appeal

The Appellant transferred to a new detachment, where he took over as the acting Detachment Commander. One of the constables under the Appellant’s command contacted the District Advisory Non-Commissioned Officer (DANCO) advising that she had concerns with the Appellant’s behaviour. The DANCO came to the detachment and spoke to several members about their interactions with the Appellant. From the information gathered, an investigation was mandated. The Appellant was transferred to another detachment, where an additional allegation arose. There were two Mandate Letters, with 13 allegations in total, which occurred over a six-month period. Eight of these allegations were under section 2.1 of the Code of Conduct. The remaining five allegations were under section 7.1 of the Code of Conduct. The investigation and conduct meeting encompassed all 13 allegations.  

Prior to the conduct meeting, the Appellant was given the opportunity to provide submissions on the allegations and conduct measures. During the conduct meeting, the Appellant provided statements on the allegations and responded to questions from the Respondent.

The Respondent found that the Appellant had made numerous discourteous comments to multiple constables, a public health nurse and a member of the public. The comments included references to a relationship between constables, questions about constables sexuality and negative comments about Indigenous persons. Further, the Respondent found that the Appellant had touched a constable on her leg without permission. The Respondent found that seven of the allegations were established, six under section 2.1 and one under section 7.1 of the Code of Conduct. The remaining five allegations were found to be not established on a balance of probabilities. The Respondent imposed a global conduct measure for the established seven allegations, plus an unestablished allegation. He imposed an indefinite demotion from Corporal to Constable, with an inability to be promoted for 14 months; transfer from the detachment; and a forfeiture of 120 hours (15 days) of annual leave.

On appeal, the Appellant provided new evidence, indicating that he has been diagnosed with two recognized disabilities. The Appellant argued that his disability diagnosis makes the decision to proceed with a conduct proceeding a violation of the Canadian Human Rights Act (CHRA) and that the conduct should have been managed through non-disciplinary ways. Further, the Appellant argued that there was a breach of procedural fairness because the Appellant was not given an opportunity to provide oral submissions on the conduct measures. Additionally, the Appellant argued that there were multiple errors of law because the oral reasons did not match the written reasons; the conduct measures were not available to the Respondent to impose; and, the Respondent did not follow the correct process to impose conduct measures. Finally, the Appellant argued that the conduct measures were clearly unreasonable because they were not proportionate to the conduct and the Respondent did not consider all relevant mitigating factors.

The Respondent requested an opportunity to provide response submissions to address alleged factual errors in the Appellant’s submissions. This request was granted. The Respondent provided submissions, and the Appellant provided a reply. 

The ERC found that the Appellant’s new evidence was allowed on appeal, as well as the new argument related to his disabilities. The evidence was not available prior to the conduct meeting, and it had a direct impact on the decision. The new argument also directly impacted the decision. However, the ERC found that the Appellant’s disabilities did not preclude conduct proceedings and it was not clearly unreasonable for the Respondent to instigate them. The ERC concluded that the Appellant’s disabilities would be considered as part of the mitigating factors of conduct measures. The ERC found that the Appellant’s allegation that initiating a conduct process against anyone with a disability is discrimination would lead to an absurd conclusion not supported by the case law cited by the Appellant.

The ERC found that the Appellant was precluded from raising issues of procedural fairness because he had failed to do so at the first available opportunity, namely at the conduct meeting. Further, the ERC found that the oral decision and the written reasons were the same and the conduct measures were available to the Respondent to impose. 

However, the ERC found that the conduct measures were clearly unreasonable because the Respondent included a non-established allegation in his global conduct measures, resulting in an error on the face of the decision. 

The ERC recommends that the Commissioner allow the appeal in part and substitute his own conduct measures. The ERC recommends 12 days annual leave as conduct measures.