D-115 - Adjudication Board Decision

The Appellant admitted that, while off-duty, he consumed alcohol, hit a parked car with a police vehicle he did not have authority to use, then left the scene without telling the police or trying to contact the owner of the parked car. He reported the incident hours later, and paid for all damages. An Adjudication Board was appointed under the "Early Resolution Discipline Process" (ERP). At the hearing, the two parties filed a joint submission that proposed a global sanction of a reprimand and a forfeiture of seven days' pay. They relied upon an Agreed Statement of Facts plus an internal decision in which a civilian member received an identical sanction for comparable misconduct. There were no witnesses or exhibits.

The Board preferred a sanction of a reprimand and forfeiture of nine days' pay. It explained that there was evidence of alcohol consumption followed by a car accident which was not officially reported for hours. It also stated that it had difficulty applying the case that the parties cited. It explained that the case involved a civilian member whereas the present case involved a regular member who was "well experienced in issues such as impaired driving", and who had a better appreciation of the implications of a police officer breaking the law. The Board gave the parties a chance to speak to the issue. Counsel offered, and endorsed, additional details in support of their proposed sanction. The Board ultimately imposed a penalty consisting of a reprimand and a forfeiture of nine days' pay. The Appellant submitted an appeal on the issue of sanction only.

The ERC remarked that although the ERP is a useful tool, it cannot remove a board's statutory powers, nor relieve it of its statutory duties, nor fetter its statutorily-entrenched discretion. It also pointed out that because particular information was not entered under oath or affirmation, or by affidavit, the Board could only consider it if it was information upon which both parties agreed. In the ERC's view, the record indicated that such information was agreed-upon. The ERC reiterated that some deference is owed to a board, even if there were no witnesses or exhibits before it. The ERC found that the Board treated the joint submission on sanction in a way which complied with relevant jurisprudence. It also found that the Board did not err in fact by partly basing its preferred sanction on its concern with the presence of drinking and driving, even if there was no evidence of impairment. Lastly, it found that the Board gave proper weight to the mitigating and aggravating factors, and to the non-punitive element of RCMP discipline.

The ERC recommends to the Commissioner of the RCMP that he dismiss the appeal. It also makes three further recommendations, specifically, that:

1. information about the ERP is clearly documented, easily accessible, and provided to members who are subject to disciplinary hearings so that they are fully informed about the process before making a decision to participate in it;
2. the record confirms that the member subject to discipline received this information; and,
3. adjudication boards are advised of the importance of ensuring that records clearly show that all evidence was tendered in accordance with statutory and regulatory provisions.

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

In a decision dated March 24, 2011, Acting Commissioner Knecht denied the appeal and upheld the sanction imposed by the Adjudication Board.

The Acting Commissioner agreed with the ERC that the Board properly considered the non-punitive nature of the disciplinary system and the particular mitigating and aggravating factors in the matter. It made no unreasonable findings of fact, as the Board did not make a finding that he was impaired, but found that he had been drinking that evening, as revealed by the evidence.

Acting Commissioner Knecht agreed with the ERC that adjudication boards should carefully consider joint submissions on sanction, but are not required to "rubber stamp" a proposed sanction. In this case, Acting Commissioner Knecht agreed with the ERC that the Board did not err in rejecting the parties' joint submission on sanction. The Board provided an opportunity to the parties to prepare and provide submissions on the increased sanction the Board was considering imposing, after stating that it considered a forfeiture of nine days's pay to be more appropriate than the parties' proposal of seven days. The Board provided clear an cogent reasons for rejecting the proposed sanction. It was reasonable for the Board to express concerns regarding [the Appellant]'s consumption of alcohol combined with his unauthorized use of a Force vehicle, as well as his lengthy delay in reporting after being advised to do so by his colleague. As such, it was reasonable for the Board to conclude that the proposed sanction was inappropriate, unfit and unreasonable. Considering the conduct involved, the Acting Commissioner found that the proposed sanction would have been contrary to the public interest and to the interests of the Force, and would have placed the administration of the RCMP disciplinary system into disrepute.