D-090 - Adjudication Board Decision

Disciplinary proceedings were initiated against an RCMP member for allegedly defrauding an elderly woman who was later diagnosed as suffering from dementia. The matter came to the RCMP's attention through a public complaint from the woman's family after the member had been transferred to another division. That complaint led to a criminal investigation the following month that took over one year to complete. Afterwards, there was a disciplinary investigation concerning the same incident and it was only upon the completion of that investigation that the member's Commanding Officer was informed of the allegations against the member, a full 18 months after the complaint had been received. The disciplinary proceedings were initiated by the Commanding Officer on the following day. At the disciplinary hearing before an RCMP adjudication board (the "Board"), evidence was introduced which indicated that the criminal operations officer who had been aware of the criminal investigation from the outset had subsequently occupied the Commanding Officer's position on an acting basis on several occasions. However, he neither informed his own Commanding Officer or the member's Commanding Officer of the criminal investigation at any time. There was evidence as well that the Commanding Officer of the division where the investigation took place may have been aware of it but it was not possible to verify that information as he had passed away. It was argued on behalf of the member that the Commanding Officer of the division where the criminal investigation took place could be considered to be the "Appropriate Officer" for the purpose of s. 43(8) of the RCMP Act, which indicates that the one-year period to initiate disciplinary proceedings is to be calculated from the date that the Appropriate Officer becomes aware of the allegations. Although the Board did not agree with that submission and despite being provided with a certificate signed by the member's current Commanding Officer which attested to the fact that he only became aware of the allegations on the day before he initiated a disciplinary hearing, the Board concluded that the time limit had not been respected because the member's Commanding Officer should have been informed of the allegations at the outset of the criminal investigation. The delay in making the Commanding Officer aware of the investigation brought the administration of justice into disrepute, according to the Board. The Commanding Officer appealed the Board's decision.

The Board's interpretation of s. 43(8) of the RCMP Act does not reflect the intention of that provision. Parliament understood that there may be instances where information about alleged wrongdoing is withheld from the Appropriate Officer for a considerable period of time but decided that this should not act as an impediment to the Appropriate Officer initiating disciplinary action. Since there is no indication that information about the alleged misconduct came to the attention of the Force before the member was transferred to another division, the only Appropriate Officer in this instance was the member's current Commanding Officer. His certificate constitutes conclusive evidence that the proceedings were initiated within the time permitted by the RCMP Act.

The appeal should be allowed.

The Commissioner rendered his decision in this matter, as summarized by his office:

On the issue of time limits, the Commissioner agreed with a recent decision of the Federal Court of Canada that the simple presence of unproven allegations was not sufficient to initiate the start of the one-year limitation period. The limitation period starts following the results of an investigation performed internally. The Commissioner ruled that as late as January 28, 2003, no internal investigation had been initiated and that the Appropriate Officer only became aware of the allegations of misconduct on or about March 18, 2003. Since the Notice to Initiate Disciplinary Hearing was signed on March 19, 2003, either dates were well within the one-year limit.

The Commissioner further ruled that the Respondent's Appropriate Officer could only be the CO of the Respondent's Division (the Appellant). Although the complaint against the Respondent was received by his previous Division and the incident occurred while the Respondent was at his previous Division, the Respondent had been transferred when the complaint was received.

The Commissioner also ruled that the information required to engage s. 43(8) of the Act must become known to the individual occupying the position of commanding officer at the time that individual is in the position. Allegations that became known to an officer as part of his or her regular duties cannot be said to have become known to the appropriate officer simply because that officer then served as commanding officer.

Finally, the Commissioner ruled that the 18-month delay between the time the matter became the subject of a public complaint and the time the Appellant was informed of the specific nature of the allegations against the Respondent failed to meet the Supreme Court of Canada's standard of a delay that brings the administration of justice into a disrepute.

Accordingly, the Commissioner allowed the appeal and ordered a new hearing into the allegations.