D-098 - Adjudication Board Decision

The member was alleged to have violated the Code of Conduct by entering into an intimate relationship with a citizen who was also a complainant in a criminal matter assigned to him. In the course of this relationship, the Appellant was alleged to have attended at the citizen's home and engaged in sexual relations, both while on and off duty and to have used his Force vehicle in the furtherance of this relationship. In addition, he was alleged to have behaved inappropriately, specifically by holding hands with the citizen while driving her to a Court appearance.

The Member Representative (MR) brought a motion at the commencement of the proceedings to strike the allegation as falling outside the time limits imposed by s. 43(8) of the RCMP Act. The Board determined that the Appellant had the onus of establishing that the time limits were not met and he had failed to discharge that onus.

The Appropriate Officer Representative (AOR) introduced an Agreed Statement of Fact (ASF), which included summaries of evidence given by witnesses. The MR submitted that the witness evidence was submitted on the basis that the Appellant admitted that the witnesses provided the evidence as reproduced, but that the truth of the evidence was not admitted. The Board considered the content of the evidence in reaching their decision on the allegation and on sanction. The Board found that the allegation of disgraceful conduct was made out. They order the Appellant to resign or be dismissed.

The Appellant appealed with respect to the time limits determination and the sanction, but not the finding of disgraceful conduct. The Appellant also argued that the Board misused the ASF, given that the truth of the witness evidence was not admitted.

The Committee found that, as no certificate as per section 43(9) of the RCMP Act was given to the Board, the onus was on the Respondent to establish that the time limits had been complied with. The Respondent's evidence was weak and inconclusive as to when exactly he first became aware of the contraventions and the identity of the Appellant. Therefore, the Respondent did not satisfy the burden of proving that the statutory time limit was respected.

In the event that the Commissioner disagreed with the Committee's recommendation, comments were made on other issues raised in the appeal.

The Committee observed that the witness evidence in the ASF could be considered unsworn evidence tendered on consent. If the parties both agreed to the Board receiving evidence for which they waived their right to cross-examine, then the Board should be entitled to receive it, consider it, assess its weight, and draw inferences from it where warranted.

However, as there was considerable confusion surrounding the ASF, it was open to the Board to question whether there was actually agreement on what was included in the ASF. If there was no actual agreement, the Board could have rejected the ASF and required that the facts be proved. The Committee found that this may have been the more prudent way to proceed, especially since the law requires that, absent consent of the parties, the Board is to consider only oral testimony under oath or written evidence on affidavit.

On the issue of sanction, the Board found there were a significant number of questions that could be raised regarding the Board's assessment of the mitigating and aggravating factors, the use of the ASF, and the issue of parity. As a result, there is sufficient reason for the Commissioner to consider whether a less onerous sanction should have been ordered in this case.

The Committee recommended that the Commissioner find that the time limits were not adhered to, allow the appeal and dismiss the allegation.

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

On the issue of timeliness, the Commissioner ruled that the Board wrongfully concluded that the Appellant had the burden of proof to establish when the required elements of subsection 43(8) became known to the Respondent. The Commissioner agreed with the ERC that the burden of proof falls upon the Appropriate Officer, who initiated the disciplinary proceedings against the member and that due to the absence of a certificate in this case, there was no presumption that the one-year limitation period had been respected. The Commissioner ruled that the Respondent failed to adduce convincing evidence to demonstrate that the one-year time limit to initiate a disciplinary hearing had been respected.

The Commissioner further found that, based on the evidence before the Board, the Respondent was most likely told about the public complaint and the allegation of assault on or shortly after April 21, 2002. Accordingly, the Commissioner disagreed with the Board that the disciplinary process was timely, and he allowed the appeal and dismissed the allegations.

The Commissioner also commented on the importance for the appropriate officers to make use of the certificate pursuant to subsection 43(9) of the Act. He also warned about improper note taking and poor record keeping practices as it could jeopardize the credibility and efficiency of the disciplinary process.