D-086 - Adjudication Board Decision

At the outset, six allegations of misconduct were contained in the Notice of Hearing that had been prepared by the Commanding Officer (the "Appellant"). All of these allegations pertained to the Respondent's attendance at a party while he was supposed to be on duty or on standby. With the consent of the RCMP adjudication board (the "Board") which heard the matter, the Appellant was permitted to withdraw the four most serious allegations. The two remaining allegations pertained to the Respondent using an RCMP Zodiac boat to travel to the party and to his being absent from duty. The Respondent admitted the allegations and the Board did not provide any indication to the parties that it was not prepared to accept that admission. The parties then provided the Board with an Agreed Statement of Facts for the allegations but introduced no further evidence. Later that day, the Board delivered an oral decision in which it indicated that it was not satisfied that the Respondent's conduct could be considered disgraceful because it appeared that the Respondent had not traveled beyond the perimeter of his duty area and that his invitation to the party may have been extended because he was an s member. The Board then asked the parties whether they had any comments, to which the Appellant's counsel replied that she did not consider that any purpose would be served by making comments because her impression was that "at this juncture it's a closed issue". In its subsequent written decision, the Board stated that "[b]oth representatives were invited by the Board to submit information or evidence in addition to the Agreed Statement of Facts but they did not avail themselves of the opportunity".

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 allegations 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 allegations were established or that it would alert the parties should it consider it necessary to receive evidence and submissions from them with respect to those allegations. The Board's decision is misleading on the issue of whether the parties were given an opportunity to present evidence and make submissions because at no time prior to issuing its oral findings did the Board indicate to the Appellant's counsel that there were a number of critical issues that had not been addressed by the Agreed Statement of Facts. The matter should be remitted to the Board for a new hearing but the parties should first be given an opportunity to endeavour to prepare a new Agreed Statement of Facts that will address the concerns raised by the Board in its decision and which may therefore obviate the need for the Appellant to present evidence in support of the allegations.

The appeal should be allowed.

Contrary to the ERC recommendation, the Commissioner denied the appeal. The Commissioner 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.