D-099 - Adjudication Board Decision

The Appellant admitted to one allegation of knowingly making a false statement to a superior under section 45 of the Code of Conduct ("Code"), and to one allegation of improper use of an RCMP computer. Four other allegations of knowingly neglecting a duty pursuant to section 47 of the Code were contested by the Appellant, as was one other allegation under section 45. The allegations involved the failure to follow up on an investigation, the failure to process exhibits pertaining to three impaired driving offences, and lying to a superior about whether an exhibit had been processed. With regards to the section 47 allegations, the Adjudication Board concluded that the Appellant knew he had a duty to investigate and record his actions, and to follow through with his investigations, and he had taken no steps to complete the files. The Board rejected the argument that these were performance issues. Also, it found that while the supervision provided to the Appellant was not as active as it could have been, this did not excuse the Appellant's lack of attention to his files. The Board found to be established the four allegations under section 47. It also found to be established the remaining section 45 allegation, rejecting the Appellant's explanation that his inaccurate statement about processing an exhibit was attributable to forgetfulness or confusion.

The Board acknowledged that isolated instances of neglect or lying might not warrant dismissal. However, the cumulative effect of the Appellant's actions amounted to a character flaw. This, along with his previous discipline and his qualified rehabilitative potential, which would place a high onus on the Force to facilitate performance, justified dismissal. The Board ordered the Appellant to resign with fourteen days. The Appellant appealed three of the section 47 allegations, as well as the Board's finding on the allegation under section 45. The sanction was also appealed.

The Committee reviewed the evidence related to the section 47 allegations. It found that on one of the allegations, the Force had established, as was required, a prima facie case that the member knew he had a duty to document his actions in a file, that he was aware that he was not doing what he was supposed to, and that his neglect was intentional in a blameworthy way. However, the Appellant's explanation that his neglect was a result of an overload of personal stressors was a plausible explanation. He had a longstanding problem with managing his files and keeping diary dates, he had been given assistance, although inadequate, to correct the deficiency, and he had a high number of personal stressors which exacerbated an already existing performance problem. Given the evidence overall, the Force had in the end not established that it was more probable than not that the Grievor's failure to complete his job routine was deliberate. As for two allegations under section 47 alleging neglect for having failed to send blood samples for analysis, the Committee found that the Respondent had not made out a prima facie case. Although it was clear that the Grievor neglected to perform a duty that he knew he had, there was nothing in the evidence to indicate that the inaction was intentional or wilful. His explanations for these allegations suggest that the neglect was not blameworthy, but was the result of stress.

The Committee also disagreed with the Respondent's suggestion that the instances of neglect of duty in this case amounted to disgraceful conduct under section 39(1) of the Code. They were related to poor performance, and did not call into question the Appellant's personal ethics. An informed reasonable person would not find them disgraceful.

As for the allegation of knowingly making a false statement under section 45 of the Code, there was evidence which called into question the reasonableness of the Appellant's explanation that confusion or forgetfulness had caused him to make an inaccurate statement. The Board's finding that the Appellant had intended to deceive was reasonable.

On sanction, although the Committee agreed with the use of some mitigating and aggravating factors, it disagreed that the many reminders given to the Appellant to do his work were an aggravating factor, because this simply described the misconduct as opposed to aggravating it. Further, the Board erred in not placing significant weight on the evidence that the Appellant was under an unusually high level of stress during the time of the misconduct. According to an expert opinion, these stressors caused him to be overwhelmed, made his thinking more disorganized and made him more prone to poor judgment. As for the Appellant's disciplinary record, although it was appropriate for the Board to consider the prior instances of discipline that were similar in nature to the present allegations, the Board exaggerated its seriousness. The Committee also emphasized that prior poor performance should not be used to justify imposing a more serious sanction for the misconduct, because this would mean that the Appellant is being punished for having been unable to perform his duties in a satisfactory manner. In addition, the evidence showed that the Appellant's rehabilitation potential would improve with a higher level of supervision, and the Board should have considered it to be an important mitigating factor. As well, several cases previously decided by Adjudication Boards placed considerable weight on unusually high stress as a mitigating factor that in part influenced them to not order termination as a sanction.

Although the Board followed the proper framework for determining the sanction, it made several significant errors which resulted in the Board imposing a sanction that was disproportionate considering all of the circumstances. The Committee recommends that regardless of whether the allegations are upheld by the Commissioner on appeal or not , he allow the appeal on sanction and impose a sanction that is less than termination from the Force.

The Committee recommended that the Commissioner find that the allegations under appeal pertaining to section 47 of the Code were not established, and that he allow the appeal on sanction. In the alternative, the Committee recommended that even if the Commissioner finds that the allegations under section 47 were established, he allow the appeal on sanction. The Committee also recommended that the Commissioner find that the allegation under appeal pertaining to section 45 of the Code is established.

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

The Commissioner dismissed the appeal of the Board's findings. With respect to allegations 2, 5 and 7, she concurred with the Board that those three allegations were established on a balance of probabilities. The Commissioner believed that there was sufficient evidence to show that for these three allegations, the Appellant gave insufficient attention to duties he was required to perform or "knowingly" neglected his duty, contrary to section 47 of the RCMP Code of Conduct. As for allegation 6, the Commissioner agreed with the Board and the Chair of the ERC that the evidence indicates, on a balance of probabilities, that the Appellant knowingly or wilfully made a false, misleading or inaccurate statement to his superiors.

As for the sanction, the Commissioner disagreed with the sanction imposed by the Board. When considering the mitigating factors, in particular the personal stressors in the Appellant's life at the time of the allegations, the Commissioner believed that the Appellant can be rehabilitated. The Commissioner further considered the fact that this member was subject to uneven supervision at a time when he could have benefitted from additional structure and support and that he demonstrated his interest in rehabilitation by cooperating with the investigation and apologizing to the Board. Accordingly, the Commissioner imposed a sanction of a reprimand and 8 days' forfeiture of pay with respect to contravention of s. 45 of the RCMP Code of Conduct, and a reprimand and 10 days' forfeiture of pay for the s. 47 violations. The Appellant must also receive continued training in stress management. Finally, since the Appellant's supervisors no longer have confidence in him, the Commissioner indicated that a transfer should be considered.