D-114 - Adjudication Board Decision

The Appellant was the subject of two allegations of disgraceful conduct. The first allegation was that the Appellant did not show up in court as a witness despite his promise to do so. The second allegation was that the Appellant failed to conduct himself in a courteous or respectful manner toward his supervisor. An Adjudication Board heard the case and found that both allegations were founded. The sanction consisted in a warning and the forfeiture of five days' pay for the first allegation, and a warning and the forfeiture of seven days' pay for the second one. On appeal, the Appellant contested the Board's findings with regard to the allegations as well as its decision on the sanction. The Appellant also contested a number of the Board's decisions regarding procedural issues.

The ERC looked into the procedural issues the Appellant raised. The Board was correct in finding that the Appropriate Officer (AO), in deciding to convene a hearing, is not required to believe that informal discipline would be inadequate. It is enough that such measures appear to be inadequate to the AO for a hearing to be convened. The RCMP Act clearly indicates that it is not within the AO's purview to proceed with as probative a review of the evidence as the one conducted by the Board, and in the Appellant's case, the AO did not act in bad faith by using his discretion. As for the admissibility of the Appellant's statement given during the internal investigation, the Board was correct in finding that it was given voluntarily, and that the integrity of recording was not an issue. Lastly, the fact that the Board knew certain facts prior to the sanction hearing did not prevent the Board from hearing this issue due to apprehension of bias. In addition, the actions of the Board, including its decision to not grant an adjournment request, did not create an apprehension of bias.

The Board's findings regarding the credibility of witnesses did not require any intervention on appeal. It was also the case for the findings regarding the allegations, which were reasonable and supported by evidence. The Appellant failed to appear in court, and according to the balance of probabilities, it was not merely forgotten. He also used disrespectful and threatening language toward his supervisor, and he did not have any legitimate reason for his actions. His behaviour would have been perceived as disgraceful and bringing discredit on the Force.

As for the sanction imposed, the ERC found that the Board erred in imposing warnings for each allegation. The AO did not ask for these measures and the parties were not advised of such possibilities. Although the forfeiture of pay was an adequate measure in these circumstances, the duration of the forfeiture was considerably longer than what the AO recommended. The Board did not advise the parties of this possibility. In addition, the duration of the forfeiture seemed attributable to the significance given to the difficulty dealing with the Appellant, and at the expense of the impact that his very good performance should have had. The adequate duration of the forfeiture of pay should have been that proposed by the AO.

The ERC recommended that the appeal on the merits of the allegations be dismissed. As for the appeal pertaining to the sanction, the ERC recommended the withdrawal of the warnings imposed on both allegations, as well as a reduction in the number of days of the forfeiture of pay to three days for each allegation.

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

[TRANSLATION]

The Appellant retired from the RCMP voluntarily in August 2011 and is no longer a member according to the definition set out in section 2(b) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10. Consequently, the Commissioner found that he no longer has jurisdiction concerning the Appellant and that he cannot make a determination on merit, given that the Appellant is no longer a member of the RCMP.