D-088 - Adjudication Board Decision

The Commanding Officer alleged that the member had, on two occasions during the same evening, conducted himself in a disgraceful manner and therefore violated the RCMP's Code of Conduct. The member was off-duty and assisting his spouse in operating a bar. An ex-employee of the bar entered the premises and went into the washroom where he was soon followed by the member who then observed him removing money from atop a ceiling tile. The ex-employee told the member that the money was to be used to purchase cocaine. The member directed the ex-employee to leave the premises. The member returned to the washroom several minutes later and retrieved two $20 bills that had been left behind by the ex-employee. He either gave that money to his spouse or placed it in the cash register. Within the next hour, several RCMP members who were searching for a suspect in an armed robbery that had just taken place at a nearby convenience store were led to the bar by a tracking dog who followed the suspect's scent to that location. They told the member that the suspect was tall and thin but he replied that no one fitting that description had been at the bar during the previous hour. The member accompanied his colleagues as they checked the footwear of the patrons and went to an apartment on an upper floor. As they were leaving the premises, the member approached them and indicated that he had just remembered that the ex-employee had been at the bar and that he might be the suspect. He also provided them with the two $20 bills that he had retrieved. The member assisted his colleagues in locating the ex-employee who was then arrested, charged and convicted of armed robbery. The basis for the first allegation of misconduct was that the member had turned a blind eye to possible criminal wrongdoing by the ex-employee as he should have been aware that money stashed in a washroom ceiling likely had been stolen. The rationale for the second allegation was that the member had not been forthright with his colleagues when he initially told them that no one fitting the suspect's description had been at the bar. When questioned by the Force about these events, the member explained that the ex-employee often engaged in bizarre behaviour that was however completely innocent, which is why he had not been more suspicious of the fact that he was stashing money in the washroom ceiling. The member insisted that he had forgotten about the washroom incident by the time that his colleagues arrived at the bar and therefore had not been lying when he told them that he could not recall anyone fitting the suspect's description of the suspect being in the bar. He was able to recall the washroom incident when his spouse reminded him of it and he then reacted by immediately bringing it to the attention of his colleagues. Expert evidence from a forensic alcohol specialist indicated that with the amount of alcohol that the member had reportedly consumed during the evening, his memory and judgment could have been impaired. Some members who had been at the scene testified that the member had not appeared to have been impaired but that was contradicted by evidence of other members who had been there as well.

The RCMP Adjudication Board (the "Board") before whom this matter was heard concluded that neither allegation had been established. While expressing disappointment over the member's failure to have been more suspicious of the ex-employee's actions in the washroom, the Board accepted his explanation that the ex-employee's propensity for eccentric behaviour influenced his reaction to this incident. The matter in which the member had disposed of the two $20 bills that he retrieved was considered appropriate given that he was unaware at the time that the money had been stolen. The Board also accepted the member's explanation that he had forgotten about this incident when he was later questioned by his colleagues. Given that the member's actions were unintentional, the Board concluded that they could not be considered disgraceful. It recognized that alcohol consumption and fatigue resulting from shift work may have impaired the member's memory and judgment.

The Appellant contended that the Board had not applied the proper test for determining whether the member's conduct was disgraceful. It was argued that even if the member did not intend to mislead anyone, his conduct would still be disgraceful because of the impressions left with other members and the perception that the general public would likely have of his actions. The Board was also criticized for placing undue weight on evidence concerning the impact of alcohol consumption and fatigue on memory and judgment since it was unclear what was the member's level of impairment.

Although the member's actions might still have been considered disgraceful even if he had not intended any wrongdoing, his conduct could not be assessed strictly on the basis of the impressions that other members had of his actions. The Board was required to consider all relevant circumstances, which include the member's explanations for his actions. It was reasonable for the Board to find those explanations to be credible. The evidence before the Board established that the member's actions could be attributed to inattentiveness and poor judgment but not to a failure to be in a state of ethical readiness. Given that the member did not delay in apprising his colleagues of information concerning the ex-employee once he realized that the person might be a suspect in the armed robbery, disciplinary action would not have been a justifiable response on the part of the Force. It appears that the Board fully appreciated that alcohol consumption and fatigue constituted only a possible explanation for the member's behaviour but that the evidence in that regard was inconclusive.

The appeal should be dismissed.

The Commissioner agreed with the findings and recommendations of the Committee and dismissed the appeal.