D-052 - Adjudication Board Decision

A member faced an allegation of disgraceful conduct bringing discredit on the Force. He was alleged to have had sex with an informant whom he had supervised and to have disclosed confidential information to her. At the beginning of the disciplinary hearing, the member made a motion in which he pleaded the one-year limitation period set out in subsection 43(8) of the RCMP Act. This provision states that no hearing may be initiated by an appropriate officer in respect of a disciplinary contravention by a member after one year has elapsed from the time the contravention becomes known to the appropriate officer. The evidence in this case showed that the notice of disciplinary hearing was issued six months after a final report of the internal investigation had been submitted to the appropriate officer, but almost one and a half years after he personally received a briefing on the interrogation of the informant by the head of internal investigations. The Adjudication Board found for the member, and determined that the limitation period had commenced on the date of the meeting between the appropriate officer and the head of internal investigations. According to the Adjudication Board, the evidence established that the appropriate officer had at that time acquired knowledge of the member's actions that went considerably beyond suspicions. In the Board's opinion, the purpose of the limitation period is to protect the member's right to full answer and defence, and to ensure the public the quick response it is entitled to expect from the RCMP in cases of misconduct.

The appropriate officer appealed this decision. The main issue before the External Review Committee was the degree of knowledge an appropriate officer must have in order for the limitation period set out in subsection 43(8) to begin to run. The Committee noted that two points stand out in the RCMP Act with regard to the issue of sufficient knowledge: the date sufficient knowledge of the alleged contravention has been acquired to commence an investigation and the date sufficient knowledge has been acquired to initiate a hearing. Each party relied on one of the two dates in support of his argument. The appropriate officer argued that the limitation period begins to run on the date when there is sufficient knowledge to initiate a hearing, and that this knowledge can only be acquired once a final report of the internal investigation has been obtained. The member argued that the limitation period must begin to run from the time sufficient knowledge of the alleged contravention has been acquired to justify commencement of the internal investigation.

The External Review Committee concluded that subsection 43(8) does not directly refer either to the degree of knowledge needed to initiate an investigation or to the degree of knowledge required to initiate a hearing. The Committee found that there will be sufficient knowledge for the limitation period to begin to run when the appropriate officer has been informed of the principal information regarding the alleged contravention. The date on which the limitation period begins to run must be determined according to the circumstances of each case. It may be that this date will be the date the appropriate officer receives the report from the internal investigation, if this is the first time the appropriate officer is apprised of the principal information. It is also possible that it will be the date that an investigation is officially commenced if, in reality, the RCMP already possesses the principal information at this stage and this information is brought to the attention of the appropriate officer at that time. But it is also possible that the date on which the appropriate officer had knowledge of the alleged contravention will be a date other than the date on which the appropriate officer received the report from the internal investigation, and other than the date on which the investigation was officially called. This determination must be made by the adjudication board. Although it may have been more convenient if the subsection 43(8) limitation period were defined more explicitly, such is not the case.

The Committee then considered the evidence in this case and concurred in the Adjudication Board's finding that the appropriate officer had material knowledge of the alleged contravention after meeting with the head of internal investigations. At that point, he had the principal information regarding the alleged contravention. The Committee therefore found that the limitation period within which a hearing had to be initiated began to run on the date of that meeting. When he issued the notice of hearing, the appropriate officer's right to initiate a hearing was accordingly time-barred. On November 26, 1997, the Committee therefore recommended that the appeal be dismissed.

On May 28, 1998, the Commissioner agreed and denied the appeal.