D-085 - Adjudication Board Decision

At the outset, ten allegations of misconduct were contained in the Notice of Hearing that had been prepared by the Commanding Officer (the "Appellant"). All of the allegations pertained to acts of domestic violence. With the consent of the RCMP adjudication board (the "Board") which heard the matter, the Appellant was permitted to withdraw these allegations and "blend" them into a single allegation which concerned an incident where, in the course of an argument, the Respondent swiped items off of a dresser, including a television remote control which flew in the direction of his spouse and hit her in the face, causing a slight bruise. The Respondent indicated to the Board that he admitted "to the particulars of the allegations as accidental". The Board did not provide any indication to the parties that it was not prepared to accept that admission. The parties did not enter into an Agreed Statement of Facts or present any evidence. Later that day, the Board issued an oral decision to the effect that the allegation had not been established because the Respondent's actions were accidental and his conduct could therefore not be considered disgraceful.

The Appellant should not have permitted to amend the allegations. Because the only type of amendment that is permitted by the Act is one whose purpose is to correct "a technical defect" and which "does not affect the substance of the notice". In any event, the process followed by the Board was contrary to the public interest. It had an obligation to place the parties on notice that it was not prepared to accept the Respondent's admission rather than wait until it issued its finding on the allegation before communicating its concerns to them. It was not unreasonable for the Appellant's counsel to expect that the Board would either rely on the Respondent's admission to find that the allegation was established or that it would alert the parties should it consider it necessary to receive evidence and submissions from them with respect to that allegation. The matter should be remitted to the Board for a new hearing but only after the parties have an opportunity to meet and endeavour to prepare an Agreed Statement of Facts which may succeed in addressing the concerns raised by the Board's decision and obviate the need for the Appellant to present evidence in support of the allegation. On the matter of whether the Board erred in stating that the Respondent's conduct could not be disgraceful because it was accidental, conduct that is reckless can be considered disgraceful, whether or not it is accidental. If need be, the parties should be given an opportunity to address the Board on that issue.

The appeal should be allowed.

Contrary to the ERC recommendation, the Commissioner denied the appeal. He found that the amendment of the notice of hearing allowed by the Board should stand because the parties had consented to it, and the member was not taken by surprise. He concluded that the burden of proving an allegation lies with the Appropriate Officer, who must ensure that there is sufficient evidence before the Board to support the allegation. The Board was not required to bring its concerns about the sufficiency of the evidence to the attention of the parties before reaching a decision. The Commissioner also concluded that the Board had dealt adequately with the material before it. As well, the Board had applied properly the test for disgraceful conduct, and it had not considered a mens rea component.