D-108 - Adjudication Board Decision

The Appellant was alleged to have committed five separate acts of disgraceful conduct, contrary to subsection 39(1) of the Royal Canadian Mounted Police Regulations, 1988 (SOR/88-361) (Regulations), and a separate act of disobeying a lawful order, contrary to section 40 of the Regulations. The Allegations are summarized below:

Allegation #1 (mitten incident) - In December 2002, the Appellant yelled at his estranged wife (Cst. X.) and her fiancé, used offensive, insulting and vulgar language towards them, and threw a pair of children's mittens at her, striking her in the chest.

Allegation #2 (office incident) - In February, 2003, the Appellant had a verbal confrontation with his District Commander ("DC") and a potential supervisor.

Allegation #3 (disobeying order incident) - In July, 2003, the DC, acting on a recommendation of the Health Services Officer, ordered the Appellant to attend anger management counselling with a particular psychologist. The Appellant did not attend the appointment.

Allegation #4 (car wash incident) - On one occasion between 1993 and 1996, while going through a car wash, the Appellant struck Cst. X. on the leg with a closed fist.

Allegation #5 (gun incident) - On one occasion between 1993 and 1996, during an argument with Cst. X. at their residence, the Appellant pointed his service firearm to his head and said words such as: "If you hate me so much, just shoot me, shoot me now."

Allegation #6 (vacation incident) - On one occasion in 1998, the Appellant grabbed his wife by the arm and pounded on her forearm approximately four or five times.

Board's Decision - The Board noted that credibility was a key issue, and that it needed to decide whether to believe either the Appellant or the Appropriate Officer (AO) witnesses. The Board found that the Appellant was not credible, that the AO witnesses were credible, and that all six allegations were established.

With respect to the allegation of disobeying a lawful order, the Board found that, although there is authority for the Force to order an assessment, there is no authority for the Force to order treatment. Nonetheless, the Board reasoned that, because the first component of treatment is an assessment, therefore the DC's order to attend treatment was lawful.

The Board directed the Appellant to resign within fourteen days or, in default, be dismissed.

Grounds of Appeal - The Appellant appealed the Board's findings on the merits only with respect to Allegations #3, 4, 5, and 6. He also appealed the sanction imposed. The Appellant's grounds of appeal included that the Board erred in its assessments of credibility; erred in finding that the DC's order was lawful; and erred in imposing an unreasonable sanction that was contrary to the principles of equity and parity.

Findings on Additional Information Submitted on Appeal

After the file was referred to the ERC, the Appellant filed a number of additional appeal submissions. The ERC noted that, in exceptional circumstances, the Commissioner of the RCMP may consider additional information on appeal that was not presented at the hearing, but only if all of the following criteria are met: it would be in the interests of justice to do so; the evidence could not reasonably have been submitted at the hearing; the evidence is relevant to an issue; the evidence is credible; and if believed, the evidence could reasonably be expected to have affected the Board's decision.

The ERC found that most of the additional information submitted on appeal did not meet the required criteria. However, the ERC did find that the additional information related to an independent investigator's substantiation of the allegations that Cst. X. and her fiancé lied under oath, did meet all of the above criteria.

Findings on the Merits of the Allegations

Allegation #3 (disobeying order incident)
The ERC found that the DC was clear in his order, and that he was specifically ordering the Appellant to attend counselling. Given that there is no authority that permits the Force to order a member to undergo counselling, the ERC found that the DC's order was unlawful.

Allegations #4, 5, 6 (car wash, gun, vacation incidents)
Given the additional information submitted on appeal related to Cst. X.'s credibility, the ERC recommended that a new hearing be held into these allegations.

Findings on Sanction

The ERC found that, even if the Commissioner of the RCMP were to find that all six allegations had been established, the sanction imposed was disproportionate to the misconduct at issue. The ERC found that the Board made conclusions that were unfounded and unsupported by the record; erred in considering certain factors as aggravating; erroneously considered the purported views of the AO, although the AO did not testify; and erred in finding that the Appellant was unfit to perform his duties. The ERC found that these errors led to the Board imposing a disproportionate sanction.

The ERC recommended that the Commissioner of the RCMP take into account the additional information submitted by the parties at the appeal stage pertaining only to the allegations that Cst. X. and her fiancé lied under oath.

The ERC recommended that the Commissioner allow the appeal on the merits, find that the allegation of disobeying a lawful order was not established, and order a new hearing before a differently constituted Board for the car wash, gun, and vacation incidents.

The ERC also recommended that the Commissioner allow the appeal on sanction and impose a reprimand and forfeiture of 3 days' pay for the mitten incident, and a reprimand and forfeiture of 3 day's pay for the office incident. If the Commissioner did not agree with the ERC's recommendations on the merits, the ERC recommended that the Commissioner find that the Board made errors in its decision on sanction.

The ERC further recommended that the Commissioner ensure that the Force follows the recommendations from the Appellant's 2001 special medical evaluation.

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

This is a second decision respecting the Appellant's appeal against the sanction imposed in formal disciplinary proceedings.

On January 25, 2013, the Federal Court granted the Application for Judicial Review file by the Appellant, and set aside Acting Commissioner Rod Knecht's decision dated April 29, 2011, which directed the Appellant to resign within 14 days, in default of which he would be dismissed from the Force. The Court provided two options: 1) remit Allegations 4, 5 and 6 to a newly constituted Board; and/or 2) reconsider and vary Acting Commissioner Knecht's decision in respect of sanction on the basis of Allegations 1 and 2.

In his decision dated March 18, 2013, the Commissioner varied the sanction on the basis of Allegations 1 and 2 alone.

He noted that Acting Commissioner Knecht had concluded in his decision dated April 29, 2011, that Allegation 3 was not established because the Commissioner's Standing Orders (Health Assessment) do not apply to the order that was given to the Appellant as there was no authority permitting the RCMP as an employer to order a member to undergo anger management counselling.

As for Allegations 4, 5 and 6, the Commissioner decided not to remit these allegations to a newly constituted Board due to the passage of time.

The Commissioner disagreed with the ERC's recommendation with respect to sanctions for Allegations 1 and 2 as he did not believe that sufficient consideration was given to the Appellant's prior misconduct. He noted that the Appellant's unacceptable conduct had severely undermined his ability to lead or act as a role model, and continuing in the Force at his present rank would not be appropriate.

The Commissioner imposed a demotion in rank from Corporal to Constable, a recommendation for a transfer, a direction to undergo a health assessment and a recommendation to undergo anger management counselling.

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

In a decision dated April 29, 2011, Acting Commissioner Knecht denied the appeal and upheld the sanction imposed by the Adjudication Board.

Additional Information Submitted on Appeal

The Acting Commissioner agreed with the ERC and only considered the information related to the Appellant's allegations that Cst. X and her fiancé lied under oath, as only that portion of the additional appeal submissions met the criteria for the admission of fresh evidence.

Approximately one year after the ERC issued its Report, the Respondent submitted further additional information to the Commissioner to which the Appellant objected, but subsequently made reply submissions. The Acting Commissioner admitted only the information related to the outcome of the perjury investigations regarding Cst. X and her fiancé as it completed the evidence considered by the ERC on this issue.

Merits of the Allegations

Allegation #3

The Acting Commissioner agreed with the ERC that the Board erred in concluding that the District Commander's order was lawful and that the allegation that the Appellant disobeyed a lawful order was established. The Acting Commissioner upheld the Appellant's appeal on this ground.

Allegations #4, 5, 6 (car wash, gun, vacation incidents)

The Acting Commissioner was satisfied that the Board considered all the arguments and evidence presented on behalf of the Appellant and did not find that it made a manifest or determinative error in its analysis of Cst. X's credibility and in selecting her version of the incidents over that of the Appellant in respect of these three allegations. The Acting Commissioner 's review of the additional evidence submitted by the Appellant regarding the perjury allegations surrounding Cst. X and her fiancé, as well as the additional evidence submitted by the Respondent regarding the outcome of the criminal investigations into the perjury allegations did not cause him to reach a different finding than the Board on the issue of credibility. The Acting Commissioner was not satisfied, based on the results of the investigation conducted following the Appellant's perjury complaint against Cst. X, that this would have changed the Board's conclusions respecting Cst. X's credibility. The Acting Commissioner agreed with the Board's conclusions that these three allegations were established on a balance of probabilities and considering his findings regarding the fresh evidence submitted by the parties, he did not, as recommended by the ERC, order a new hearing in respect of these three allegations.

Sanction

The Acting Commissioner disagreed with the ERC's findings that the Board made conclusions that were unfounded and unsupported by the record, and that it erred in considering certain factors as aggravating.

The Acting Commissioner also disagreed with the ERC's finding that the Board erroneously considered the purported views of the AO, although the AO did not testify. The Acting Commissioner concluded that there was no indication that the AO's views were placed into evidence without his testimony. He was satisfied that the Board deduced the AO's lack of confidence in the Appellant from the sanction sought.

As for the ERC's finding that the Board erred in finding that the Appellant was unfit to perform his duties, the Acting Commissioner concluded that the Board's concerns about the Appellant's rehabilitation potential were reasonably supported by the record, such as the evidence pertaining to the Appellant's failure to follow the recommendation of the Adjudication Board in 1999, as well as the testimony of the District Commander that he was not able to control his emotions to do his day-to-day work.

The Acting Commissioner found that the Board considered all necessary elements and came to a reasonable conclusion. Although he was satisfied that only five of the six allegations against the Appellant were established, he still considered that a sanction of dismissal was reasonable considering all of the factors, including the serious nature of the contraventions, the related prior discipline, the Appellant's lack of sincere remorse, the District Commander's lack of confidence in the Appellant and belief that he is not suitable for the RCMP, the absence of support from the AO, and the Appellant's poor rehabilitative potential. The Acting Commissioner found that the mitigating factors were outweighed by the aggravating factors in this case and therefore dismissed the Member's appeal in respect of the sanction and confirmed the sanction imposed by the Board.

The Acting Commissioner directed the Appellant to resign within 14 days, in default of which he would be dismissed from the Force.