D-071 - Adjudication Board Decision
The Appellant has appealed the decision of an adjudication board on two allegations, which found that his conduct was disgraceful, when he had engaged in sexual misconduct towards two other members and that, without their consent. The Appellant is also appealing the sanction that was imposed by the Board, that is a forfeiture of six days' pay for the first allegation and a forfeiture of 10 days' pay for the second allegation. The Board also recommended that the Appellant issue written apologies to both members and that he be provided with training on sexual harassment.
The Appellant's representative presented three grounds of appeal. Firstly, she disputed the Board's assessment of the witnesses' credibility, arguing that insufficient reasons were provided in support thereof. Secondly, the Appellant's representative submitted that the Appellant's sexual actions in the case of the second allegation should not be regarded as a violation of the Code of Conduct because the member had consented to these actions. Thirdly, she argued that the sanction was too harsh.
The Respondent's representative defended the Board's decision, arguing that the Board had carefully assessed the credibility of the witnesses and had fully appreciated the seriousness of the Appellant's misconduct.
On January 22, 2001, the ERC issued its findings and recommendations. The Committee considered that there were two aspects to the Board's decision that were problematic. First, according to the Committee, the Board did not have sufficient evidence before it to conclude that the incident described in the first allegation had taken place. Indeed, not a single other person who was in the room when this incident allegedly occurred had any recollection of it. Even if the Board's finding on the member's credibility could be sustained, the Committee does not believe that the incident could be regarded as a violation of the Code of Conduct. To be able to conclude as such, the evidence would have had to establish that the Appellant had sexual intentions or that the member genuinely perceived that such were his intentions. The Committee did not believe that a reasonable person would view those actions as disgraceful. As for the second allegation, the Committee was of the view that since the member claimed that she was asleep and therefore could not have consented, the Board had no choice but to find that the allegation had been established unless it was prepared to state that her evidence was not credible.
The second aspect of the decision which the Committee found problematic related to the sanction for the second allegation, consisting in a forfeiture of 10 days' pay, the most severe sanction available short of dismissal or an order to resign. The Committee considered that this sanction completely failed to respect the principle of parity of sanction, which is a fundamental principle in disciplinary law, and whose application to the RCMP had been recognized many times in appeal decisions.
The Committee recommended that the decision on appeal be that the first allegation was not established and the second allegation was established. The Committee recommended that the appeal on sanction concerning the second allegation be allowed and the sanction be reduced to a forfeiture of eight days' pay and a reprimand.
On March 23,2001, the Commissioner rendered his decision in this case. His decision, as summarized by his office, is as follows:
As concerns the first allegation, the Commissioner supported the recommendation made by the External Review Committee (ERC), who deemed this allegation to be unsubstantiated. He also found that, consequently, the sanction issue became purely academic.
The Commissioner agreed with the Adjudication Board and the ERC as to the validity of the second allegation and reviewed the severity of the sanction. He considered the importance of the principle of parity of sanction, but emphasized that sanctioning standards could vary as the awareness, degree of knowledge and acceptance of a behaviour in society and an organization changed. Citing a public opinion survey conducted in 2000, he highlighted the unacceptable level of sexual harassment in the Public Service and especially in the Royal Canadian Mounted Police (RCMP). The Commissioner indicated that it was necessary to send a clear message that behaviours that led to certain sanctions in the past, would be dealt with more severely from now on. He emphasized that the RCMP has implemented a vast harassment training policy to raise employee awareness and to reduce the number of such incidents. The Commissioner upheld the sanction imposed by the Adjudication Board, i.e. forfeiture of 10 days pay, a letter of apology and referral to sexual harassment awareness training.