D-081 - Adjudication Board Decision

From August 1999 to June 2000, the Appellant granted numerous media interviews in which he denounced the Force's handling of an investigation into corruption of the immigration application process at the Commission for Canada in Hong Kong (the "Mission") during the late 1980s and early 1990s, suggesting that the Force was not taking the matter seriously. The Appellant also provided several journalists with copies of documents from the investigation file, including a report by a security analyst from the Department of Foreign Affairs and International Trade (DFAIT), David Balser, who had concluded in 1992 that the application process was open to widespread abuse because the Mission had failed to take the appropriate safeguards to prevent immigration fraud by corrupt employees. The Force had initially been called upon to investigate activities at the Mission in 1991-92 as the result of receiving a complaint from two Hong Kong residents who indicated that they had received an offer to expedite the processing of their visa application from two women who identified themselves as employees of the Mission if they were prepared to make a payment of $10,000 through the intermediary of a local immigration consultant. They declined the offer and complained about it in writing to the Mission but received no response and therefore decided to subsequently complain to the RCMP. Reports of other unusual occurrences surfaced, which led to an RCMP investigator travelling to Hong Kong to interview selected employees. Two locally engaged staff (LES) who were suspected of involvement in immigration fraud were not interviewed and a determination made that there was insufficient evidence to implicate them in any wrongdoing because there were no signs of untold wealth on their part. Information was received from the immigration control officer, Brian McAdam, that organized crime groups (known as triads) may have infiltrated the Mission's computer system and that fake immigration visa stamps had been found in the desk of a former employee. The investigator was apprised at the time of the conclusions reached by Mr. Balser concerning the security vulnerabilities at the Mission but did not address them in his report. The investigation was concluded due to lack of evidence. A new investigation was initiated in 1993 to consider evidence that Canada-based officers (CBOs) had accepted expensive gifts and money from a family of Hong Kong industrialists, who made efforts to ingratiate itself to staff of the Mission's immigration section. The Force declined a request to send two investigators to Hong Kong to interview witnesses and the investigation was concluded in April 1994 due to lack of evidence.

A third investigation was initiated in May 1995 as the result of a complaint from Mr. McAdam, which reiterated some of the issues that had been raised in the first and second investigations. Mr. McAdam had resigned from DFAIT the previous year on medical grounds, claiming that his illness was brought about by his having been ostracized by DFAIT for lending assistance to the Force in its previous investigations by providing information about dubious associations between Mission employees and Hong Kong residents believed to have links to organized crime. Mr. McAdam also shared his complaint with a Member of Parliament, David Kilgour, who wrote to the Prime Minister to request a public inquiry into the matter. Instead, the Minister of Citizenship and Immigration provided an undertaking that the RCMP would fully investigate the matter. In May 1996, the new Officer in charge of the RCMP's Immigration and Passport Section, Supt. Jean Dubé, interviewed Mr. McAdam and came to the conclusion that the allegations were vague and unsubstantiated and that Mr. McAdam was motivated by a desire to obtain retribution against his ex-colleagues for the manner in which they had treated him. In September 1996, the Appellant was tasked by Supt. Dubé with reviewing Mr. McAdam's allegations and recommending a course of action to be pursued for the investigation. Meanwhile, Supt. Dubé wrote to his supervisor that he wanted to close the investigation. The Appellant began meeting weekly with Mr. McAdam and took numerous statements from him. He submitted periodic investigation reports in which he indicated that he was convinced that Mission staff had been corrupted and that immigration fraud had been widespread. Concerns began to arise about the Appellant's lack of objectivity after he shared a copy of Mr. Balser's report with Mr. McAdam, met with Mr. Balser and asked him to redraft his report so that it would be less dense with jargon and told one former CBO that he interviewed that he was convinced that criminal charges would be laid as a result of the investigation. Accordingly, in March 1997, he was instructed to cease interviewing witnesses and a decision made to assign the investigation to another member. Over the course of the following months, the Appellant continued to meet with Mr. McAdam and submitted reports in which he suggested that the initial investigation in 1991-92 had been marred by either negligence or corruption on the part of the investigator. He also attempted to illustrate how Mr. Balser's conclusions demonstrated that corrupt employees of the Mission had likely participated in immigration fraud, with the result that triad members may have been able to secure visas to immigrate to Canada, despite their suspected involvement in criminal activities. In September 1997, Sgt. Sergio Pasin took over the investigation from the Appellant. He met with Mr. McAdam shortly thereafter and concluded that the investigation should be pursued even though the allegations appeared vague to him. Over the course of the following year, efforts were made to obtain information from Citizenship and Immigration Canada (CIC) about unusual transactions on the Mission's computer system to determine whether they constituted a possible indication of immigration fraud. This included an analysis of visa applications that had been processed in a time-frame of four months or less, well below the average of 18 months. No witnesses were interviewed during this period because Sgt. Pasin was assigned to another investigation that was considered to have a higher priority.

In the meantime, the Appellant wrote to his Commanding Officer to complain that Supt. Dubé had obstructed his investigation. After being told that his complaint had been dismissed, the Appellant submitted it to the Commission for Public Complaints against the RCMP (CPC) in January 1998. This led to an investigation by the Internal Affairs Branch of the RCMP which, based on an interview with Supt. Dubé, concluded that the complaint was without merit. The CPC itself informed the Appellant in January 1999 that it had concluded that it did not have jurisdiction to address the complaint. The Appellant then contacted the Office of the Auditor General which agreed to initiate an investigation.

The same month, Supt. Dubé became aware of a paper drafted by Mr. McAdam in which he explained the basis for his concerns that triads having infiltrated the Mission and expressed disappointment with the Force's lack of progress in investigating his complaint. The paper also described Mr. Balser's conclusions regarding the security vulnerabilities at the Mission. It was learned that Mr. McAdam had shared this paper with a reporter from the television program The Fifth Estate which then contacted the Force for information as to how the investigation was progressing. Shortly thereafter, Supt. Dubé wrote to his supervisor to recommend that the investigation be revived although he continued to maintain that he did not consider that there was any merit to Mr. McAdam's complaint. One week later, Supt. Dubé wrote to the Appellant to alert him to the possibility that he might be contacted by the media and instructed him not to discuss the investigation. He also enquired about a missing box of documents that the Appellant had retrieved from the Criminal Intelligence Directorate (CID) in November 1996. That box consisted of newspaper and magazine clippings about triads which had been compiled by Mr. McAdam when he was in Hong Kong as part of a research project that he was working on at the time. It had been left with the RCMP Assistant Liaison Officer in Hong Kong at the end of Mr. McAdam's tour of duty on the understanding that its contents would be catalogued by CID and then returned to Mr. McAdam. However, there was some miscommunication in that regard and CID neither catalogued the box's contents, nor returned it to Mr. McAdam. It was at Mr. McAdam's request that the Appellant retrieved the box from CID without indicating, however, that he intended to return it to Mr. McAdam. Supt. Dubé and Sgt. Pasin maintained that they were interested in the box because they wanted to determine if any of the material might be useful to their investigation. However, the Appellant suspected that they were attempting to determine if there had been any wrongdoing on his part in the manner in which he had handled the box. Sgt. Pasin learned from Mr. McAdam that he had discovered one document in the box returned to him that consisted in criminal intelligence about suspected triad members. He had immediately returned that document to the Appellant because he assumed that it had been included in the box in error. In August 1999, the Appellant was questioned about the box by Sgt. Pasin and asked how he could be certain that it did not contain classified documents since he had not made an inventory of its contents before returning it to Mr. McAdam. That question prompted him to end the interview and to make the decision to tell the media about his concern that the Force was not taking the investigation seriously. In the interval, Supt. Dubé attempted to initiate a Code of Conduct investigation against the Appellant, based in part on an allegation that he had shared confidential documents with Mr. McAdam. His request was denied. However, a Code of Conduct investigation was initiated several days later after several newspaper articles were published which reported the Appellant's concerns about the Force's investigation of Mr. McAdam's complaint.

The RCMP adjudication board that conducted a hearing into the allegations of misconduct against the Appellant concluded that the Appellant's actions were disgraceful because they violated the oath of secrecy that he had taken upon joining the Force. It also found that he had provided false information to the media, in that there was "not a shred of evidence of cover-up, wrongdoing or of illegal conduct that required public scrutiny". The Board also concluded that "[t]here is no evidence that suggests Supt. Dubé intended this particular investigation to die", conceding only that he "struggled with competing priorities, lack of resources and how to best deal with the Hong Kong investigation". The fact that the Appellant had disclosed confidential information concerning an ongoing criminal investigation, including the names of suspects in that investigation, was described by the Board as potentially having compromised the investigation and damaged the reputation of the persons named as suspects, which included Canadian diplomats occupying high ranking positions. The Board rejected the Appellant's contention that he had acted out of concern for the public interest, finding instead that he had been merely attempting to prevent the Force from investigating his own conduct in the handling of the box that was returned to Mr. McAdam. Addressing the implications of the Charter's guarantee of freedom of expression, the Board stated that because that guarantee was subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society", pursuant to s. 1 of the Charter, the Force was still entitled to discipline members for violating their oath of secrecy and that the only circumstances where it might be otherwise was for the purpose of denouncing "serious illegal acts or policies that put at risk the life, health or safety of the public". As a result, the Board ordered the Appellant to resign from the Force, failing which he would be dismissed. It found that the Appellant had "a character flaw which impairs his usefulness as a peace officer and member of the RCMP".

The arguments in support of the appeal focus primarily on the Board's analysis of the Charter. It is submitted that the circumstances where members may speak out publicly against the Force are much broader than those recognized by the Board and would include such matters as obstruction of a criminal investigation.

An RCMP member's intentional violation of the oath of secrecy is, prima facie, disgraceful conduct that could bring discredit upon the Force and therefore something for which it is appropriate that the member be disciplined, unless the member acted to disclose a matter of legitimate public concern requiring a public debate. The fact that the Appellant honestly believed that the Force had engaged in serious wrongdoing is not a particularly relevant consideration. He had the onus of presenting evidence before the Board which would establish that there was at least a reasonable basis to his assertions. While there is no evidence of a cover-up on the part of the Force, there were important shortcomings in the investigative process followed by the Force since 1991, with the result that it remains possible that employees of the Mission were able to engage in immigration fraud on a widespread basis and that such activities have remained undetected to date. The record discloses a series of suspicious and disconcerting events that the Force failed to investigate in a timely and thorough manner. The RCMP oath of secrecy can undoubtedly be considered a reasonable limit to an RCMP member's freedom of expression if it is enforced in a manner that is designed to protect legitimate interests but it cannot serve to prevent public scrutiny of wrongdoing on the part of the Force. The Force has consistently demonstrated a reluctance to investigate the activities of LES at the Mission. The 1999 investigation did not succeed in making up for the shortcomings in previous investigations. It constituted an exhaustive review of the interaction between CBOs and the Hong Kong residents and did reveal that the extent to which gifts, money and other benefits had traded hands was far more widespread than the Force had previously been led to believe by DFAIT and CIC. However, there are several important issues that had first surfaced during the initial investigation which Sgt. Pasin opted not to pursue or examine in only a cursory fashion, such as the activities of LES. From the outset of his involvement with this investigation, Supt. Dubé made no secret of the fact that he did not believe that there was any merit to Mr. McAdam's complaint and that continued to be the case as late as January 1999 when the investigation was revived. The result of the investigation was preordained. Supt. Dubé appeared unprepared to envisage an outcome that would be seen as vindicating Mr. McAdam. The close working relationship that the Immigration and Passport Section had with DFAIT and CIC appears to have influenced the approach taken towards this investigation. It considered DFAIT and CIC to be its clients, which was problematic because a thorough and timely investigation could have produced results that would have been detrimental to DFAIT and CIC, especially if it were found that lax security procedures at the Mission had enabled corrupt employees to engage in immigration fraud on a widespread basis and over a prolonged period. At the time that the Appellant revealed his concerns to the media in August 1999, it was reasonable for him to believe that Supt. Dubé was endeavouring to initiate a Code of Conduct investigation against him. As well, the Appellant continued to be motivated by a desire to have the Force conduct a thorough investigation into activities at the Mission. Regardless, the disclosure would still have to be regarded as a matter of legitimate public concern because it exposed the fact that the Force had, for seven years, failed to take appropriate action to determine if employees of the Mission had engaged in immigration fraud.

The appeal of the Board's finding on the allegations of misconduct should be allowed.

(Appearance of Bias) - The Appellant argued that the Commissioner could not make the decision on appeal, because there was bias, or an appearance of bias. In September 1999, the Commissioner, then D/Commr, had requested an administrative file review of all RCMP investigations of wrongdoing at the Hong Kong Mission. The Commissioner as D/Commr accepted the findings of the administrative review that the Appellant's allegations were essentially unfounded; he then reported these results in a briefing note dated December 6, 1999, to the Commissioner.

The Committee concluded that there was probably some justification to the Appellant's concern that the present Commissioner was not perceived as impartial given the role that he played in the administrative file review in 1999. However, the Committee found that the Royal Canadian Mounted Police Act precludes the Commissioner from assigning the responsibility to hear appeals to anyone else [s. 5(2)]. Also, because Parliament assigns decision-making authority in discipline appeals to the same person to whom it entrusted "control and management of the Force and all matters connected therewith" [s. 5(1)], it recognized that the adjudicator would not always be impartial and independent. Instead, Parliament ensured fairness in the process by creating the Committee and requiring that all appeals be referred to it before they are adjudicated by the Commissioner.

In a decision dated November 2003, the Commissioner ruled that while no evidence was presented to support a finding of actual bias on his part, the Appellant could perceive a lack of impartiality. For that reason, he made the decision to not adjudicate the appeal. In his view, "the fact that I approved the briefing note reporting the administrative review findings that the allegations were not substantiated may raise doubt about my ability to remain open-minded with respect to the appeal". The Commissioner relied on section s.15(1) of the Act, which provides that the Deputy Commissioner at headquarters may exercise all the powers of the Commissioner in the event that he or she is absent or unable to act or the office is vacant. In this case, s.15 applied because the Commissioner was unable to act because of the apprehension of bias.

The A/Commr agreed with the findings of the Adjudication Board and dismissed the appeal against the Board's findings on the allegations. He found that given the nature of the duties of RCMP officers, a higher standard should apply with respect to the duty of loyalty. Also, there must be a qualification on public interest when disclosure involved sensitive classified information such as criminal intelligence and details about witnesses, suspects and innocent parties. In his view, there was no reasonable basis for the Appellant's criticism of the Force, and the matters disclosed by the Appellant to the media were not of legitimate public concern. The Appellant's reaction was one of personal interest.

The A/Commr also upheld the sanction imposed. He found that the Arbitration Board had considered the positive as well as negative factors. He did not agree with the Appellant that his action represented a single mistake made in the context of a very difficult and unique file. The A/Commr found that the Appellant had displayed poor judgment in a continuous series of decisions throughout the investigation of the Hong Kong matter. According to the A/Commr the sanction is appropriate, because the Appellant did not demonstrate the level of trustworthiness necessary to continue the employment relationship.