D-075 - Adjudication Board Decision
An adjudication board found that it did not have jurisdiction to hear three allegations of misconduct formulated against a member, because the disciplinary proceedings had not been initiated within the one-year period indicated by s. 43(8) of the RCMP Act. The Commanding Officer appealed the decision.
The Appellant argued that the A/Commr. had not acquired knowledge more than one year before the proceedings were initiated. Specifically, having found that the evidence of one S/Sgt. could only be given "equal weight" to the s. 43(9) certificate, the Board failed to conclude that the evidence established that the A/Commr. learned of the alleged misconduct prior to the date on the certificate.
The Respondent first challenged the Appellant's right to appeal the adjudication board's decision. The Respondent also submitted that the appeal was not submitted within the time limit permitted by s. 45.14(4) because the appeal submissions were filed by electronic mail only, while a copy of those submissions sent by mail was not delivered until after the deadline. The Respondent's view was that the adjudication board erred in not finding that someone who learns about the alleged misconduct while not in the A/Commr. but who then sits in that chair, triggers the start of the one-year time frame for initiating disciplinary action.
In an interlocutory ruling, the Committee concluded the Appellant had the right to appeal because the decision of the adjudication board amounts to a "dismissal of an allegation" pursuant to s. 45.14(2). As for the timeliness of the appeal, the Committee concluded that the RCMP Act does not preclude the use of electronic mail as the method of filing appeal submissions.
On November 8, 2001, the ERC issued its findings and recommendations. The Committee concluded that when a s. 43(9) certificate is not contradicted by any other evidence, the adjudication board has the right to rely on that certificate as the basis for concluding that the proceeding was initiated within the time specified in s. 43(8). However, where evidence to the contrary is introduced, as was the case here, the burden falls upon the Appellant, as the party that initiated the proceeding, to demonstrate that, on a balance of probabilities, the information relied upon to prepare the certificate was factually correct. The Committee concluded that the Appellant had failed to discharge the evidentiary burden before the adjudication board.
The Committee indicated that the s. 43(9) certificate would have been sufficient to establish the date on which the Appellant became aware of the Respondent's alleged misconduct but for the fact that there was evidence before the adjudication board that contradicted the certificate. The Committee concluded that for the purpose of s. 43(9), what may be regarded as "evidence to the contrary" is any credible evidence that the Appropriate Officer learned of the alleged misconduct on an earlier date than that indicated by the certificate, whether or not such contrary evidence is considered to be of higher probative value than the certificate. The Committee noted that the evidence did succeed in establishing that at least four other members in the chain of command had acquired detailed information about the matter by the end of May 1999.
The Committee recommended that the appeal be dismissed.
On December 12, 2001, the Commissioner rendered his decision in this matter. His decision, as summarized by his office, is as follows:
On December 12, 2001, the Commissioner thoroughly reviewed this matter and made the decision to dismiss the Appropriate Officer's appeal. He agreed with the Committee that one S/Sgt.'s testimony amounted to contrary evidence which succeeded in displacing the legal presumption created by the certificate issued pursuant to s. 43(9) of the RCMP Act. The Commissioner expressed his concerns about the delays in this case, noting in particular that the Appropriate Officer did not initiate disciplinary proceedings until August 2, 2000, nearly a full year after the criminal charges had been laid and almost eighteen months after the incident first became the subject of a public complaint. He acknowledged that delays do occur in administrative proceedings but had difficulty comprehending why disciplinary action could not have been initiated in compliance with the RCMP Act.