D-059 - Adjudication Board Decision
The Respondent was the subject of one allegation of disgraceful conduct regarding an alleged assault. At the outset of the hearing, he brought a motion challenging the jurisdiction of the Adjudication Board to conduct the hearing. He argued that he had previously been reprimanded for the same conduct as that set out in the allegation. According to subsection 43(7) of the RCMP Act, no formal discipline may be initiated where there has been a reprimand in relation to the same conduct. The Board found that there had been a reprimand delivered in relation to the conduct alleged, and that it therefore did not have jurisdiction to conduct a hearing into the allegation.
The Appropriate Officer (the Appellant) argued on appeal that the measure taken had not been a reprimand. He submitted that the agreement entered into between the Respondent and his line officer did not resemble a reprimand in substance or in form and that it showed none of the identifiers of a reprimand.
On April 7, 1999, the ERC issued its findings and recommendations. The Committee examined the statutory context in which "reprimand" and other disciplinary measures were placed in the Act as well as the legislative history of informal and formal discipline in the RCMP. It found that anyone administering informal discipline must first be satisfied that the conduct at issue amounts to a contravention, and must then determine what measure is sufficient to address that contravention. An officer administering a reprimand must be satisfied that a reprimand is the appropriate action, in light of the conduct at issue, and so must appreciate the differences between the various disciplinary actions, as well as the conduct at issue. The nature of the misconduct being sanctioned and the provision of the Code of Conduct violated must be communicated to the member being sanctioned. An officer administering a reprimand ought also to inform the member that the disciplinary action being taken is a reprimand. This makes it known to the member what rights and consequences arise from the discipline, such as a right to appeal and the consequence that no further disciplinary action can be taken.
The Committee found that the action taken in this case did not satisfy these criteria and therefore did not amount to a reprimand. The Committee also found that the Appellant could not be estopped from fulfilling his statutory duty to pursue formal discipline. The evidence did not support a finding that the officer administering the discipline had intended to deliver a reprimand and had merely made a mistake. In those circumstances, the statutory duty on the Appellant could not be displaced by an undertaking to the Respondent that the matter was concluded.
The Committee recommended that the Commissioner allow the appeal and that he order a new hearing to be conducted into the allegation.
On June 4, 1999, the Commissioner rendered his decision in this matter. His decision, as summarized by his office, is as follows:
The Commissioner agreed with the Committee's finding that, as a result of the statutory distinctions, a reprimand must be delivered in a more formalized manner. The Commissioner also supported the Committee's position that the informal disciplinary measure imposed on the Respondent did not meet the conditions which should be respected in such a case. Based on these conclusions and contrary to the Board's decision, the Commissioner indicated that the measure imposed on the Respondent was not a reprimand within the meaning of the RCMP Act and that it did not stop the disciplinary process. As for the issue of estoppel, the Commissioner stated that it could not apply since discipline in the RCMP is governed by statute and estoppel cannot override statutory requirements. The Commissioner allowed the appeal and ordered a new hearing.