D-109 - Adjudication Board Decision

The Appellant was alleged to have committed three separate acts of disgraceful conduct, as follows:

Allegation #1: The Appellant persistently followed and contacted the Complainant on several occasions, notwithstanding the Complainant having advised the Appellant that no such contact was wanted.

Allegation #2: The Appellant drove a vehicle to and about a residence where the Complainant was residing, notwithstanding the Complainant having advised the Appellant that no such contact was wanted.

Allegation #3: The Appellant tampered with the Complainant's electronic mail without the Complainant's consent.

At the hearing, the Appellant brought a motion to have the proceedings stayed. The Appellant contended that the Force committed an abuse of process, in the way that it handled the complaint against him, and that the only appropriate remedy was a stay of his disciplinary hearing.

Adjudication Board's Decision - With respect to the Appellant's motion to stay the proceedings, the Adjudication Board found that the Force failed to act properly in two ways. First, although it searched the Appellant's residence pursuant to a search warrant, it seized items that were not covered by the search warrant, and as such, violated the Appellant's Charter right protecting him from an unreasonable search and seizure. Second, the Force did not return to the Appellant all of the items covered by a Court Order directing that items seized by the Force be returned. However, the Board determined that a stay of the disciplinary proceedings was not warranted.

In relation to the merits, the Board found that Allegation #1 had been established. The Board also found Allegation #3 to be established. The Board did not find Allegation #2 to be established. It accepted the parties' joint submission on sanction, and imposed a reprimand and a forfeiture of three days' pay for the first allegation, and a reprimand for the third allegation.

Grounds of Appeal - The Appellant's grounds of appeal in this matter pertained to the Board's:

• decision to quash a Summons issued to the Appropriate Officer (AO);
• findings pertaining to the late disclosure of an exhibit;
• findings related to the Appellant's request for disclosure of the Respondent's rebuttal evidence;
• decision not to grant a motion to stay the proceedings; and;
• findings on Allegations #1 and #3.

The sanction was not appealed, nor was the Board's finding on Allegation #2.

Decision to Quash Summons - In support of the motion to stay the proceedings, the Appellant had sought by summons to have the AO testify about a letter written to the Appellant's lawyer by the Appropriate Officer Representative (AOR). The AOR brought a motion to quash the summons, and relied on an affidavit in which the AO indicated having nothing relevant to contribute with respect to the letter. The ERC found that the Board's decision to quash the summons was reasonable as it was based on the fact that the AO had no knowledge of the AOR's letter.

Late Disclosure of an Exhibit - During the hearing, the AOR had disclosed an exhibit to the Appellant. The ERC found that the AOR should have disclosed the exhibit earlier as it was relevant to the Appellant's motion to stay. However, any prejudice caused by the late disclosure was remedied by the Board's offer of an adjournment, and by the opportunity available to the Appellant to recall witnesses. The ERC also found that even if the AOR had been wrong in relying on litigation privilege to originally withhold the exhibit from the Appellant, this factor did not support a finding that abuse of process had taken place.

Request for Disclosure of Respondent's Rebuttal Evidence - After an adjournment of the hearing, and before the Respondent presented evidence in rebuttal to the motion to stay, the Member Representative (MR) made a motion for disclosure of 'will-say' statements for any witnesses the Respondent intended to call, relevant notes, documents, records and emails, and case law the Respondent intended to rely on. The Board found that the Respondent's disclosure obligation related only to information relevant to the merits of the case, and therefore didn't apply to information relevant to the abuse of process motion. However, in order to ensure efficiency, it ordered the Respondent to provide 'will-say' statements. When the hearing resumed, a newly appointed AOR provided documentary disclosure relevant to the motion, in addition to will says.

The ERC found that the Board should have made a broader order for disclosure regarding information relevant to the motion to stay, including any relevant notes, documents, records and emails. However, the new AOR had provided more thorough disclosure, and any prejudice caused by the late disclosure was remedied by the Board's offer of an adjournment and by the opportunity available to the Appellant to recall witnesses.

Decision on Motion to Stay the Proceedings - The ERC found that there were two irregularities in the handling of the Appellant's case by the RCMP. First, a search of Appellant's residence was unreasonable because the Force had seized numerous items which fell outside the scope of the search warrant. Second, a warrantless search of the Appellant's detachment locker which led to the seizure of three firearms belonging to the Appellant was also unreasonable. These irregularities, although serious, did not meet the high threshold for a finding of abuse of process, as the process was not tainted to such a degree that it could be seen to be one of the clearest of cases for such a ruling. Furthermore, fairness was not compromised, because evidence gathered in the searches was not used in the disciplinary proceedings.

The ERC further found that even if the irregularities had constituted an abuse of process, it would not recommend that the Commissioner of the RCMP order a stay, as the criteria justifying such a remedy had not been met.

The ERC also found that the other arguments raised by the Appellant in support of the motion to stay the proceedings did not support a finding of abuse of process:

• the Appellant had urged that the handling by the RCMP of seized items from his residence led to the loss of exculpatory evidence. The ERC found, however, that the Appellant's evidence did not support this argument;
• a visit to the Appellant's residence by two members did not infringe the Appellant's equality rights under section 15 of the Charter. Further, the Appellant did not meet the burden of persuasion required to show a breach of section 7 of the Charter;
• the Appellant had argued that the Force's non-compliance with a Court Order directing the return of seized items to the Appellant constituted contempt of Court. The ERC found that although some items remained in the Force's possession based on an interpretation of the Order which could be debatable, the record did not show that members exhibited the type of conduct that would meet the high standard required for a finding of contempt; and,
• the record did not support the contention that the principal investigator was biased.

Decision on the Merits - With respect to the Board's findings on Allegations #1 and #3, the ERC found that intervention was not warranted with respect to the Board's findings on credibility, given the Board's explanations, and its reliance on the record to explain its conclusions on credibility.

The ERC also found that the Board's conclusions on Allegations #1 and #3 were reasonable and supported by the evidence on the record.

The ERC recommended to the Commissioner of the RCMP that he dismiss the appeal.

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

In a decision dated June 14, 2010, Acting Commissioner William Sweeney agreed with the Committee's findings and recommendations and dismissed the Appellant's appeal of the Board's decision.