C-164 - Conduct Appeal

The Appellant was waved down on the road by a member of the public. The Appellant and the civilian engaged in a short, but tense conversation. After driving off, the Appellant, eventually returned to collect information about the civilian and filed a related PROS report. The civilian filed a public complaint against the Appellant. The Decision relates to the Appellant’s actions in his interaction with the member of the public.

The Respondent ultimately found two allegations established pursuant to section 2.1 (discourtesy) and section 3.2 (abuse of authority) of the RCMP Code of Conduct. The Respondent ordered the loss of one day’s pay with an admonishment for the discourteous conduct and the loss of two days’ pay with an admonishment for the abuse of authority.

The Appellant argues that the Decision was procedurally unfair due to the Appellant being denied his right to know the case against him. As well, the Appellant believed that the Respondent‘s actions in the Appellant’s promotion process indicated a reasonable apprehension of bias. The Appellant further argued that the Respondent committed an error of law in not properly setting out the test for abuse of authority. The Appellant also submitted that the Respondent’s findings regarding discourtesy were unreasonable. Finally, the Appellant opined that if the allegations were to remain established, the conduct measures were clearly unreasonable because the Respondent failed to consider a number of mitigating factors and did not properly apply the parity principle.

The ERC found that the appeal should be allowed for the following reasons. First, The Appellant’s arguments regarding being denied knowing the case against him were valid. The Respondent, regarding the abuse of authority allegation, considered a number of factual concerns to establish the allegation that were beyond the scope of the notice provided to him. Second, the Appellant did not establish a reasonable apprehension of bias on the part of the Respondent after a review of the promotion policy and the information in the record. Third, in light of the findings regarding the breach of procedural fairness there was no need to assess the alleged error of law regarding the test for abuse of authority. Finally, the Respondent’s findings regarding discourtesy were clearly unreasonable because they failed to deal with the context of the Appellant’s statements.

The ERC recommends that the appeal be allowed. It recommends that the allegations not be established due to a lack of evidence to make factual findings about what occurred at the alleged incident. Without such evidence the alleged contraventions of the Code of Conduct cannot be established.