D-079 - Adjudication Board Decision

The Appellant introduced a motion before the adjudication board (the "Board") for a stay of proceedings on the grounds that the Force had made procedural errors in its investigation of the allegations of misconduct and that those errors "seriously undermined the Board's jurisdiction and rendered the discipline process unfair" to him. The Appellant's immediate supervisor, who was a public servant rather than a member of the RCMP, indicated that he had initiated a Code of Conduct investigation in January 2001 at the request of the Commanding Officer. When the investigation report was issued four weeks later, it was sent directly to the Commanding Officer who then decided to convene an adjudication board hearing. It was argued that the Commanding Officer had exceeded his authority because the Act required that the Code of Conduct investigation be reviewed by the detachment commander before a determination could be made as to whether the matter should be put before an adjudication board. Furthermore, as a public servant, the Appellant's immediate supervisor could not initiate a Code of Conduct investigation.The Board denied the motion for a stay of proceedings because it was satisfied that the Force had complied with the requirements of the Act.

At the hearing on the merits of the allegations of misconduct, which concerned the entry into a hotel room occupied by two RCMP cadets and the removal of their clothing, it was established that the Appellant's visit to the hotel was borne out of a concern for the well-being of a cadet who was staying in that room. The Appellant was an instructor at the RCMP Training Academy in Regina and the cadet that he was concerned about was part of a troop for which the Appellant was an instructor. During this visit, the Appellant was accompanied by three cadets who were part of that same troop. They had not expected to find two people in the room and left almost immediately when they realized that this was the case. However, one of the cadets decided to take along clothing and other personal effects that were lying at the foot of the bed, intending this to be a prank. The Appellant did not try to stop the prank but decided to leave the clothing at the hotel reception and then left a phone message at the room so that the cadet who was the intended victim of this prank would know where to find his clothes. That cadet testified that he found the prank very amusing and that is what he had told the Appellant two days later. The other cadet who was in the room reacted far differently. She told the Board that she found the prank humiliating. It was not until seven months later that the matter came to the Force's attention as the result of a complaint by an instructor at the Training Academy. The Board found that the Appellant had not taken advantage of his position with the Force to gain access to the room but concluded nonetheless that he had violated the Code of Conduct because "a reasonable person with knowledge of all relevant circumstances, including the realities of policing in general, and the RCMP in particular, would be of the opinion that an unlawful entry into a private hotel room and the removal of clothing and other belongings is disgraceful".

The matter of whether the Board should have granted a stay of proceedings can only be based on an assessment of the extent of the prejudice that the Appellant suffered as a result of the Force's actions and whether that prejudice would have compromised the fairness of the Board's hearing. It appears that the Appellant did not suffer any prejudice. In any event, the convening of a Board hearing did not violate the Act because the Commanding Officer was not required to make that decision on the basis of a Code of Conduct investigation report or on the advice of the Appellant's detachment commander. The Actwould have permitted the commanding officer to convene a Board hearing even if there had not been a Code of Conduct investigation.

As for the merits of the one allegation of misconduct that the Board found to have been established, the Board's written reasons were deficient in that they failed to explain why the Appellant's conduct was disgraceful even though he had not intended to cause any harm. The Appellant's use of a hotel access card to enter a hotel room did not in itself constitute disgraceful conduct because it was borne out of a legitimate concern for the well-being of a cadet with whom he had developed a close personal relationship. However, his conduct became disgraceful when he allowed others who were accompanying him to remove clothing from the room despite having realized by then that there were two people sleeping in the room. The Appellant thereby allowed what might have otherwise been an unnoticed visit to come to the attention of two cadets and caused them to have legitimate concerns about their loss of privacy. The Appellant's actions also could have potentially caused considerable harm to the hotel as the impression was conveyed that one its employees had been remiss in allowing the Appellant to gain access to a hotel room. The Appellant compounded the harm caused by his actions by failing to explain to the two cadets the reason why he had gone to their room in the first place. The fact that neither of the two cadets complained to the Force about the Appellant's actions is not a relevant consideration for the purpose of determining whether or not those actions were disgraceful.

The appeal should be dismissed.

With respect to the preliminary motion, the Commissioner agreed that the convening of an adjudication board did not violate the Act, and the denial of the Appellant's preliminary motion was proper.

As for the second ground of appeal, the Commissioner agreed with the External Review Committee's findings that the Appellant's conduct was disgraceful, and therefore dismissed the appeal.