D-101 - Adjudication Board Decision

The Appellant was alleged to have engaged in disgraceful conduct in the form of spousal abuse. He was convicted in criminal court of three charges, but after an appeal, was acquitted.

Two preliminary motions were advanced by the Appellant. One that the disciplinary process was an abuse of process due to the criminal acquittal and one alleging institutional bias on the part of the Board due to the fact that the Appellant had filed a civil suit against the Force. Both motions were denied and the hearing was adjourned on the basis that the Appellant was medically unfit to attend or instruct counsel. A subsequent adjournment request made and argued by email was denied. The hearing proceeded without the Appellant or his counsel being present. The Board ordered dismissal.

The Committee found that the Board erred by refusing the adjournment request without the benefit of sworn testimony.

The Committee also found that there was insufficient evidence before the Board for it to conclude that the disciplinary hearing was not an abuse of process, given the criminal acquittal.

Finally, the Committee found that it was not possible to determine if the Board properly admitted evidence about other incidents of spousal abuse over and above those that were the subject of the hearing.

The Committee recommended that the Commissioner of the RCMP allow the appeal and refer the matter back to a differently constituted Board. The Committee also recommended that in the order for a new hearing, the Commissioner include a direction that if the abuse of process argument is pursued, the newly constituted Board should ensure that it has all of the necessary information.

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

The Commissioner agreed with the ERC that while the Appellant made no formal adjournment request, it was clear from the communications of his counsel that he was requesting that the Board not proceed with the hearing as he was still ill and unable to instruct counsel. The Board was therefore correct in treating this matter as a motion for a second adjournment.

As for the Board's decision, the Commissioner further agreed with the ERC's analysis of the Howatt case. Because fairness is the paramount consideration when responding to a request for adjournment on the basis of illness, a second adjournment should have been granted to the Appellant. The Board erred when it refused the second adjournment without the benefit of sworn testimony. It was unfair for the Board to deprive the Appellant of his right to be present at his hearing and to present his defence.

Accordingly, the Commissioner ruled that such unfairness warranted that the appeal be allowed and that the matter be referred back to a differently constituted adjudication board.