D-116 - Adjudication Board Decision

In May 2006, the Appellant went inside a church and threatened a Bishop with a knife. He was charged with the Criminal Code offence of Uttering Threats. In court he pleaded guilty and both the Appellant's lawyer and the Crown Attorney asked the sentencing judge for a conditional sentence. They made this request, in part, because the Appellant apparently suffered from a health condition during the time of the incident. No medical evidence was presented. The sentencing judge granted the request. He found that "there is a medical basis for the actions and that because ... there has been medical treatment, the risk of further difficulties has been greatly reduced."

After the court process, the Force initiated disciplinary proceedings before an internal Adjudication Board. At the hearing, the Appellant admitted that he had threatened a Bishop with a knife. The Board found that this act amounted to disgraceful conduct which deserved discipline. Counsel for the Force argued that the Appellant should be dismissed from the Force. Counsel for the Appellant sought a more lenient penalty, on a number of grounds and he submitted medical reports about his condition. In so doing, he asserted that the Appellant's alleged medical condition in and of itself was not a mitigating factor. He also took the position that the Appellant was not attempting to use the purported health condition as a means of avoiding responsibility.

The Board weighed the witness testimony and the medical evidence before it and ultimately directed the Appellant to resign within 14 days, or be dismissed. The Appellant submitted an appeal arguing that the sanction was excessive.

The ERC did not find sufficient merit in the Appellant's grounds of appeal. It specifically found that the Board applied the law properly, treated opinion evidence reasonably, and then arrived at its decision both fairly and in accordance with relevant principles.

The ERC explained that the Board was in a very different position from the sentencing judge, because there was different information presented to each. The ERC recognized that the Board and the sentencing judge differed on whether there was a link between the Grievor's medical condition and the offence. However upon reviewing key Supreme Court of Canada and Federal Court of Appeal decisions, it found that a balancing of factors dictated that it take such an approach for the following reasons:

1. the conflict involved a mitigating factor, and did not impeach the actual finding of guilt;
2. a reasonable person would deduce that the integrity of the adjudicative process was not tainted, since the Board had medical evidence and the sentencing judge did not;
3. it would be unfair to bar the Force's Counsel from addressing such evidence, in light of the facts that he did not raise it and that he was not a party to the criminal hearing; and,
4. the public interest in having full and fair disciplinary proceedings for RCMP members outweighs the concern in this case that there may be the appearance of inconsistency.

The ERC recommends that the Commissioner of the RCMP dismiss the appeal.

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

In a decision dated March 27, 2012, Commissioner Paulson concluded that he did not have jurisdiction to determine this appeal because the Appellant is no longer a member of the RCMP, having been dismissed pursuant to a decision of a subsequent Adjudication Board (the “Second Board”). As a result, the Commissioner did not consider the merits of this appeal.

On November 19, 2009, the Second Board rendered an oral decision in which it directed the Appellant to resign from the RCMP within fourteen days, failing which he would be dismissed from the Force. (The Second Board's written decision is reported as The Appropriate Officer of “F” Division and Constable K.R. Gregson (2009), 5 A.D. (4th) 213, January 27, 2010). As a result of the decision of the Second Board, and the Appellant's failure to submit his statement of appeal of this decision within the prescribed time limit, the Appellant was dismissed from the RCMP effective December 3, 2009.

The Commissioner concluded that since the Appellant was dismissed from the Force, he was no longer a member of the RCMP by virtue of paragraph (b) of the definition of “member” set out in section 2 of the Royal Canadian Mounted Police Act. Moreover, as a practical matter, the Commissioner could no longer impose the disciplinary sanctions set out in subsection 45.12(3) of the Royal Canadian Mounted Police Act, namely the forfeiture of pay, demotion, an order to resign, or dismissal, as they are related to the employment relationship, which no longer exists. Therefore, the Commissioner found that he had lost jurisdiction over the Appellant and could not render a decision on the merits of the matter, as the Appellant was not a member of the Force.

The Commissioner also found that the appeal was moot. Although when the Appellant presented his appeal the question of sanction may have been a live issue requiring a decision, that issue became hypothetical or merely academic; as a result of the Second Board's decision, any decision that the Commissioner would render would have no practical effect on the final outcome of the Appellant's situation. The Commissioner concluded that there were no circumstances warranting his analysis and decision on the merits of each ground of appeal.