D-103 - Adjudication Board Decision

The Appropriate Officer (AO) appealed an Adjudication Board's decision that two allegations of disgraceful conduct were not established. The AO Representative (AOR) and the Member Representative (MR) submitted one Agreed Statement of Facts (ASF). No other evidence was called and no other exhibits were tendered.

The Member admitted to the first allegation that when he was acting Noncommissioned Officer ("NCO"), he ignored the advice of his NCO and left the detachment. He took a weekend trip in which he helped drive a civilian member to a course, got a force vehicle repaired, and stayed a night with his parents. The Board determined that the conduct was not disgraceful. There was no order from the NCO, only advice. As acting NCO, the Member had authority to make decisions necessary to perform the duties of the function, and his visit to his parents was not a significant factor.

The Member denied the second allegation that, while he was responsible for the detachment's shift schedule, he took 4 regular time off days that had not yet accrued. The Board determined the conduct was not disgraceful, as it was more due to poor administration then to an unethical act. The Board notes that there was considerable rescheduling of the Member's shifts, and the Member also had not taken 4 volunteer on-call days to which he had been entitled.

Remedy: The Committee found that the Commissioner of the RCMP did not have the option of finding the allegations to be established and sending the case back for a sanction hearing. The only legal options open to the Commissioner on an AO appeal are to dismiss the appeal or allow it and order a new hearing on the merits.

First Allegation: The Committee found that the Board considered the total of, and demonstrated appreciation for, the evidence contained in the ASF, and it applied the proper legal test. The AOR was not permitted to add evidence through the submissions. Also, even with an admission, the Board was obligated to reach its own conclusion.

Second Allegation: The Committee found that the Board did not misapprehend the evidence in the ASF. Also, the AOR was not permitted to add new evidence through submissions. The Committee found that the Board did not err by requiring proof of something more then an administrative error, and it did not say that proof of fraud was needed to establish the allegation.

The Committee recommended to the Commissioner of the RCMP that this appeal be dismissed.

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

Remedy: The Commissioner agreed with the ERC that the only legal options open to the Commissioner on an AO's appeal are to dismiss the appeal or allow it and order a new hearing on the merits.

First Allegation: The Commissioner concluded that the Board committed a palpable and overriding error in reaching the decision that this allegation was not established. It was clear from the particulars of the allegation, from the ASF, and from the Member's admission to the allegation, that the Member acted contrary to the direction of his NCO by leaving the detachment area during the relevant period. In so doing, the Member acted in a disgraceful manner, in contravention of s. 39(1) of the Code of Conduct. Even the Board acknowledged in its decision that the Member "may have contravened the intent or spirit" of his NCO's comments through his actions. However, the Board then failed to draw the appropriate inferences based on the evidence before them. The Commissioner therefore allowed the AO's appeal of the Board's decision on the First Allegation and ordered a new hearing into that allegation.

Second Allegation: The Commissioner agreed with the Committee that the appeal of the Board's finding on the Second Allegation should be dismissed. The Commissioner found that it was within the Board's jurisdiction to draw the conclusion, upon reviewing the ASF, that the Member took 4 days of regular time off (RTO) to which he was not entitled as a result of poor administrative practices in shift scheduling. Furthermore, considering all of the circumstances and the lack of evidence of the Member's intent in taking the 4 RTO days, it was not unreasonable for the Board to conclude that a reasonable person would not find the Member's conduct disgraceful.