D-091 - Adjudication Board Decision

An RCMP adjudication board (the "Board") was called upon to address four allegations that a civilian member had violated the Code of Conduct. The first allegation primarily concerned a threat to resort to the services of individuals involved in organized crime in order to inflict injuries upon a person whom the member accused of having slapped her. The second allegation was that the member had repeatedly harassed her former lover after he had indicated to her that he was ending their relationship and did not want to have any further contact with her. The third allegation was that the member disobeyed an order not to have further contact with her ex-lover. That order had been given to her by an RCMP investigator who was reviewing a complaint made by the member's ex-lover. The fourth allegation was that the member had absented herself from her district area without her manager's approval while she was on sick leave. She travelled to Florida and booked into the same hotel where her ex-lover was staying at the time and he had not been alerted to the fact that she would be there. The member introduced a motion before the Board to have the allegations dismissed. Her principal arguments were that the allegations pertained to her private life and did not engage any legitimate interests of the RCMP, that the disciplinary investigation contained serious irregularities, such as the destruction of interview notes, and that the RCMP had acted against the advice of several physicians in initiating disciplinary proceedings, which had the effect of damaging the member's already fragile health. The motion was denied. At the hearing on the merits of the allegations, the member claimed that she had never uttered any threats. The Board concluded that it was the member who was not credible in part because an RCMP investigator testified that the member had admitted making threats. As for the second allegation, the Board concluded that the member's behaviour did not constitute harassment towards her ex-lover but the allegation was established nonetheless because there had been one occasion where the member threatened her ex-lover with the possibility of an RCMP investigation into his real estate transactions. The third and fourth allegations were determined to be unsubstantiated. The sanction consisted in the forfeiture of two days' pay for the first allegation and a reprimand for the second allegation. The member's appeal pertained primarily to the Board's rejection of her motion for dismissal and its findings concerning the credibility of witnesses.

The Board properly interpreted the jurisprudence which indicates that a stay of proceedings can only be considered in the face of conduct that shocks the conscience of the community. It was justified for the Force to initiate a disciplinary investigation when informed that the member had threatened to have harm inflicted upon a friend of her ex-lover as such conduct could be considered to bring discredit upon the Force. The same can be said of the information that the member had persisted in trying to communicate with her ex-lover after he had clearly indicated to her that he did not want to have any further contact with her. The errors made during the investigation did not jeopardize the member's ability to defend herself against the allegations. While the member's health may have deteriorated as a result of being made the subject of a disciplinary investigation and her medical condition is one that may be regarded as a mental disability, the Force did not contravene either s. 7 or s.15 of the Charter of Rights and Freedoms by going ahead with that investigation and later referring the matter to the Board. The member's disability was not necessarily the primary explanation for the alleged misconduct and discipline would therefore be an appropriate response if the member could have controlled her actions. As for the assessment of the witnesses' credibility, the Board did not disregard any important element of the evidence when it addressed that issue. The testimony of the member's ex-lover was sufficient evidence for the Board to rely upon in order to conclude that the first allegation had been established. It adequately justified its conclusion that the member's evidence was not credible. However, the Board's finding that the second allegation was established is problematic given that it concluded that most of the events described in support of this allegation did not constitute disgraceful conduct. In effect, what the Board did was to substitute its own allegation for that prepared by the Commanding Officer, which is contrary to the intent of the RCMP Act.

The appeal of the Board's finding on the first allegation should be dismissed; the appeal of the finding on the second allegation should be allowed.

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

[TRANSLATION] With respect to the issue of whether the new representations filed following the report of the External Committee are admissible, the Commissioner decided not to take into account the written comments by the Appellant or the objections made by the Respondent's representative. The Commissioner also rejected the application to order a stay of proceedings, because the evidence did not show that the proceedings had prejudiced the administration of justice. Furthermore, the Appellant's rights and freedoms were not violated.

The Commissioner then rejected the argument to the effect that the Appellant had been deprived of the opportunity to present a full and complete defence because a number of details had not been included in the notice of disciplinary hearing. As for the evaluation of the witnesses' credibility, the Commissioner accepted the Adjudication Board's credibility analysis and dismissed this as a ground of appeal. As the Adjudication Board was in a better position to assess the credibility of the witnesses, the Commissioner assigned considerable deference to the panel.

Lastly, with respect to the findings of the Adjudication Board with respect to the allegations, the Commissioner agreed with the findings and recommendations of the External Review Committee for the first allegation and saw no reason to overturn the findings of the Adjudication Board. For the second allegation, the Commissioner found that the Adjudication Board had an incorrect perception of the conduct deemed disgraceful and therefore allowed the appeal of this allegation as recommended by the External Review Committee. The Commissioner upheld the Adjudication Board's sanction of a warning and a forfeiture of two days' pay. He also upheld the recommendation that the Appellant continue to receive professional treatment in accordance with the recommendations of the RCMP Health Services to ensure that the Appellant's health status does not prevent her from performing her duties within the organization.