D-074 - Adjudication Board Decision
The member appealed the decision of an adjudication board which concluded that he had contravened the Code of Conduct on three occasions. The member is also appealing the sanction that was imposed by the Board, namely an order to resign from the Force for two of the three contraventions, and the forfeiture of five days' pay for the third contravention.
The member's representative presented nineteen grounds of appeal, including arguments about a motion that had been made to the Board to stay the proceedings. Other issues related to the findings of the Board, its conclusions on sanction and the fairness of the hearing itself.
On September 17, 2001, the ERC issued its findings and recommendations. In its findings, the Committee indicated that it was troubled by the approach taken by the Board in addressing the relevant issues of the case. In particular, the Committee found that the Board had made certain assumptions that were simply not borne by the evidence.
Concerning the motion to stay the proceedings, the Committee indicated that the Board made no error when it denied the motion. There are circumstances where a stay of proceedings ought to be considered, for example when it is impossible for a fair hearing to take place, but there was no evidence that this was such a case. On a motion to admit polygraph evidence, the Committee found that the Board had complete discretion to choose whether or not to admit it, as long as it was consistent in the application of this discretion. As for a motion to reopen the hearing on one allegation (because of the disclosure of new evidence), the Committee found that the Board was functus officio and that the Board was right to deny the motion.
The Committee also found that there was sufficient evidence before the Board to support its finding that the appellant's actions toward the three victims amounted to violations of the Code of Conduct. However, the Committee indicated that the Board's assessment of the appellant's credibility concerning allegation no. 2 was seriously flawed as there were no inconsistencies in his testimony and that, in fact, the one example cited by the Board is not an inconsistency at all.
Concerning the issue of sanction, the Committee found that the Board's assertion that rehabilitation was not an option was completely false and that the Board, in its assessment of the aggravating and mitigating factors, made several statements about the Appellant's conduct which were totally outrageous and not supported by the evidence. The Committee found that the Board was required to abide by the principle of parity of sanction, which it did not do. Indeed, the Board made no effort to explain in its decision how the sanctions which it imposed for each of the three allegations compare to previous decisions for similar misconduct, despite arguments by both the appellant and the respondent on this point.
Finally, the Committee found that while there most certainly were shortcomings to the Board's hearing process and to the hearing environment, those were not sufficiently serious to conclude that the appellant did not receive a fair hearing before the board.
The Committee recommended that the appeal against the finding that three contraventions of the RCMP's Code of Conduct were established should be dismissed. The Committee recommended that the appeal against the decision on sanction should be allowed. For each of allegations 1 and 3, a reprimand should be imposed. In the case of allegation 2, a forfeiture of pay for 10 days as well as a reprimand should be imposed.
On December 12, 2001, the Commissioner rendered his decision in this case. His decision, as summarized by his office, is as follows:
On December 12, 2001, after careful consideration, the Commissioner agreed with the recommendation of the External Review Committee to dismiss the appeal on the allegations of misconduct. The Commissioner agreed with the Board and the Committee that the allegations had been established.
As for the appeal on the sanction imposed by the adjudication board, the Commissioner agreed with the Committee's recommendation that the appeal should be upheld and that the sanction should be varied. The Commissioner found that discharge from the Force was not appropriate in this case; however, he disagreed with the Committee as to the appropriateness of demotion. The Commissioner found Sgt. [member] conduct totally unacceptable for a member of the RCMP and stated that it is to be condemned in the strongest possible terms. He referred to the Committee's comments regarding the disciplinary sanction of demotion in their report 2900-98-001 [33 AD (2d) 122] and stated that when the test referred to was applied to the conduct in this case, particularly with regard to allegation number two, the sanction of demotion was justified. Pursuant to s. 45.16(3)(b) and 45.12(4) of the Royal Canadian Mounted Police Act, the following sanctions were imposed: allegation 1, forfeiture of five days' pay and a reprimand; allegation 2, demotion to the rank of corporal, a recommendation for transfer and a recommendation for professional counselling; allegation 3, forfeiture of five days' pay. The Commissioner pointed out that the recommendations for transfer and counselling were intended to ensure that the member is posted to appropriate duties at a location where he can address his personal problems.