D-061 - Adjudication Board Decision

The appellant was alleged to have amended an RCMP document, thus violating section 43 of the Code of Conduct. He had fabricated an investigation report and supporting notes. He had written a false date on these documents. His intention was to replace a report that had disappeared, on which was based part of an affidavit supporting a request for a wiretapping warrant. One of his colleagues, called as a witness in a case against the RCMP in which the warrant figured, needed the report to prepare his testimony.

The appellant admitted the allegation. A joint statement of facts was submitted to the Adjudication Board and the parties made a joint representation concerning the sanction, i.e., a forfeiture of five days' pay and a reprimand. The Board found that the allegation was established, but did not accept the joint representation on sanction. Instead it ordered the appellant to resign. The appellant appealed the decisions on the allegation and the sanction. The respondent agreed with the first reason for the appeal, but left it to the Commissioner to etablish the appropriate sanction.

The issue, in the appeal, was the manner in which the Adjudication Board had proceeded in the hearing on the sanction. Before hearing the parties, it had asked them what they intended to propose as a sanction. When it had learned that they recommended a forfeiture of five days' pay and a reprimand, it said that it wanted to hear witnesses because it considered the matter to be was "very serious". After an adjournment of a few hours only, the appellant's representative had called upon the appellant's line supervisor and the appellant to testify. The representatives of the parties then pleaded the reasonable nature of their joint representation on sanction.

According to the appellant, if the Adjudication Board had notified him that it was contemplating rejecting the joint representation on sanction, he could have asked for leave to withdraw his admission; this would have led to a new hearing on the allegation.

The Committee did not subscribe to the argument that the decision on the allegation had to be reversed. The Board did not have to allow the appellant to withdraw his admission because it rejected the joint representation on sanction. The appellant did not show that his admission was not given of his own free will, or that he now had a defense to put forward. The Committee found that the decision concerning the merits of the allegation was valid.

The Committee nonetheless found that basic errors had been committed within the context of the hearing on the sanction. The Adjudication Board should have clearly notified the parties that it intended to reject their suggestion and that the sanction to which the appellant was exposed could be as severe as an order to resign. The comments of the Board were too ambiguous for the parties to realize this and to make representations accordingly. As well, the Board should have given the parties an opportunity to be heard with regard to the sanction it intended to impose. To do this, it should have adjourned the hearing for at least a few weeks so that the parties could make adequate preparation. The appellant's right to make full answer and defense was not respected. The sanction must therefore be nullified.

The Committee then proceeded to determine the appropriate sanction, since the RCMP Act does not provide the possibility of ordering a new hearing before an adjudication board if the appeal is allowed solely in regard to the sanction. The Committee pointed out that the determination of a sanction necessarily includes the fact that there is a joint representation by the parties. A tribunal is not bound by a joint representation on the sanction. However, unless it finds that the recommendation is not reasonable, such a sanction should be endorsed. The Committee therefore reviewed all the circumstances of this matter and compared it with other disciplinary cases. It found that the appellant merited severe punishment, but not dismissal from the RCMP. According to the Committee, the forfeiture of five days' pay and a reprimand suggested by the parties was a reasonable sanction to recommend to the Commissioner.

The Committee therefore recommended that the Commissioner allow the appeal from the sanction and impose the sanction recommended by the parties.

The Commissioner has since rendered his decision in this matter. His decision, as summarized by his office, is as follows:

The Commissioner indicated that he agreed with the recommendations of the External Review Committee ("ERC") on the withdrawal of the admission. He maintained that the failure of the Adjudication Board ("the Board") to adhere to the sanction proposed by the parties, in a joint statement of fact, did not oblige him to allow the appellant to withdraw his admission with regard to his conduct. On that basis, the Commissioner dismissed the appeal as to the merits of the allegation. As to the sanction, the Commissioner set aside the dismissal order because the Board had not given the appellant the opportunity to adequately prepare and make his submissions. Under section 45.16 of the RCMP Act, the Commissioner is obliged to determine a new sanction. With this requirement in mind, the Commissioner considered precedents, the seriousness of the impugned conduct and the circumstances of the incident. He pointed out that the appellant's conduct had tarnished the credibility of the organization before the justice system and ordered that the appellant be given a reprimand and a forfeiture of ten days' pay.

The Commissioner commented on the Board's conduct in this matter, emphasizing that it is the duty of adjudication boards to act in accordance with the principles of natural justice and to allow the parties to be heard and to prepare adequately for the hearing. Lastly, the Commissioner did not endorse the ERC's recommendation that an advisory committee be formed to establish the appropriate procedure for processing disciplinary matters in which there was an agreement in effect. He maintained that it was up to the adjudicators to conduct disciplinary hearings efficiently and effectively, in accordance with the limitations prescribed by the Act.