C-160 - Conduct Appeal

The Appellant appealed a decision by a Conduct Authority (Respondent) that found two allegations of misconduct established. First, the Respondent found that the Appellant openly criticized the management of his Division by sending negative emails to the entire Division, which amounted to discourteous conduct in contravention of section 2.1 of the RCMP Code of Conduct. Second, the Respondent found that the Appellant continued to send negative emails Division-wide, despite having been ordered to stop, which amounted to disobeying a lawful order contrary to section 3.3 of the Code of Conduct.

The Respondent prescribed a written reprimand for Allegation 1, and the loss of two days’ pay for Allegation 2.

On appeal, the Appellant argued that the Respondent breached his right to be heard by providing only eight days to prepare submissions for the Conduct Meeting. The Appellant also believed that the Respondent demonstrated a reasonable apprehension of bias by remaining as the Conduct Authority, despite being a key witness in the conduct process. Finally, the Appellant argued that the findings in the Decision were clearly unreasonable, and that the Decision provided insufficient reasons. 

The ERC found that the Appellant’s right to be heard was not breached, as the Appellant did not establish that he required more than eight days to prepare for the Conduct Meeting.

The ERC concluded that the Respondent demonstrated a reasonable apprehension of bias. The Respondent was the source of key evidence that he had to assess for credibility. This fact, combined with the fact that the Respondent chose to proceed without a conduct investigation, would lead an informed person to conclude that it is more likely than not that the Respondent, whether consciously or unconsciously, would not decide fairly. Since this issue was dispositive of the appeal, the ERC did not address the Appellant’s arguments about the flaws in the Decision.

In recommending the decision that the Respondent should have made, the ERC considered how the Canadian Charter of Rights and Freedom (Charter) applied to the conduct proceeding. The ERC emphasized that administrative proceedings involving a Charter right or value must apply the Doré framework. In this case, the application of the Doré framework required a balancing of the Appellant’s right to freedom of expression with the statutory objectives of the RCMP conduct process.

After reassessing the record, the ERC concluded that Allegation 1 was not established, and that Allegation 2 was established. The ERC recommends that that the Appellant receive a financial penalty of two days’ pay for Allegation 2.

The ERC recommends that the appeal be allowed, and that the Appellant retain the financial penalty of two days’ pay. Since the ERC recommends that Allegation 1 be found not established, this would have the effect of removing the written reprimand which the Respondent prescribed.