D-105 - Adjudication Board Decision

The Member was alleged to have engaged in disgraceful conduct. At the commencement of the disciplinary hearing, the Member brought two preliminary motions to stay the proceedings - one alleging the expiration of the section 43(8) of the RCMP Act ("Act") time limit for initiating disciplinary proceedings, and the other alleging an abuse of process caused by delay. The Adjudication Board ("Board") denied the Member's section 43(8) motion, but granted the Member's abuse of process motion and stayed the proceedings.

The Appropriate Officer ("AO") appealed the Board's decision to stay the proceedings due to an abuse of process. The AO argued that the Board Chair erred by unilaterally deciding not to read the allegations at the start of the hearing. In addition, the Board's error of not reading in the allegations prevented the AO from making submissions that would have explained the delay. The AO also argued that the Board did not apply the proper legal test for determining whether there was an abuse of process that warranted a stay of proceedings. The Member's position was that the Board did not err. In the alternative, the Member submitted that the Commissioner of the RCMP did not have jurisdiction to hear the AO's appeal, but that such appeals must be heard by the Federal Court of Canada.

As a result of the AO's appeal, the Member cross-appealed the Board's decision to deny the Member's section 43(8) motion for a stay of proceedings. The Member argued that the Board erred in finding that the section 43(8) time limit did not begin to run when the Appropriate Officer Representative (AOR) was informed of the allegations and the Member's identity. The AO submitted that it is only the AO's actual knowledge, and not that of the AOR, that triggers the section 43(8) time limitation.

On the AO's appeal the Committee found that the Commissioner has jurisdiction to hear the AO's appeal, pursuant to section 45.14(2) of the Act. In addition, although the Board erred by not reading in the allegations at the commencement of the hearing, this did not cause any prejudice to the AO. The Committee also found that the Board erred in concluding that the delay from January 10, 2003 to October 3, 2003 was inordinate; and that the Board made errors of law in its decision to grant the Member's motion for a stay of proceedings due to abuse of process caused by delay.

On the matter of the Member's cross-appeal, the Committee found that the Board did not err in its decision to deny the Member's section 43(8) motion. The law was clear at the time the motion was heard by the Board that it is the actual knowledge of the AO that triggers the time limitation under section 43(8). The Federal Court of Appeal has since confirmed this.

The Committee recommended that the Commissioner of the RCMP allow the AO's appeal, dismiss the Member's cross-appeal, and return the matter for adjudication pursuant to section 45.16(2)(b) of the Act.

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

In a decision dated August 14, 2009, Acting Commissioner W. Sweeney agreed with the Committee's findings and recommendations. Accordingly, the Appropriate Officer's appeal was allowed, the Member's cross-appeal was dismissed, and the matter was returned for adjudication pursuant to section 45.16(2)(b) of the Act.