D-117 - Adjudication Board Decision

The Respondent admittedly violated Force policy by failing to immediately disclose the fact that he had inadvertently discharged a firearm at the scene of an accident (in doing so, he had struck a vehicle with the round). The parties chose the Early Resolution Discipline Process (ERP). There was no Notice of Date, Place and Time. A hearing was held quickly. Moreover, the parties relied solely upon an Agreed Statement of Facts (ASF).

The Adjudication Board (Board) declared itself bound by the ASF. On this basis, it found that the ASF did not prove that the Respondent knew, at the time of the firearm discharge, that a round had struck a vehicle. More significantly, it concluded that his delay in reporting the discharge was not disgraceful, as it was attributable to arresting and processing suspects, seeking advice, and making several failed attempts to talk with a superior.

The Appellant presented an appeal. He urged that the Board misapplied the test for disgraceful conduct, drew an incorrect inference from the ASF, and failed to consider critical evidence. The Respondent disagreed. He distanced himself from his earlier admission of disgraceful conduct.

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, especially when procedural protections are relaxed. It acknowledged that the ERP is an informal process, but noted that it is still important for boards to respect rules in place for the introduction of evidence. It also expressed concern about the Respondent appearing to withdraw his admission of disgraceful conduct.

The ERC found that the Board neither erred in applying the test for disgraceful conduct, nor in reaching any of its conclusions in that respect. The ERC also found that there was nothing in the ASF that allowed it to reasonably infer that the Respondent knew, at the time of the firearm discharge, that a round had struck a vehicle. Finally, it found that the ASF did not prove other misconduct which the Appellant attributed to the Respondent.

The ERC recommended to the Commissioner of the RCMP that he deny the appeal. It also recommended the following, vis-à-vis the ERP's future administration:

1. information about this process is clearly documented, easily accessible, and provided to members so they are fully informed about it before making decisions to participate in it;
2. the record confirms that a member subject to discipline received the above information;
3. adjudication boards are advised of the importance of making sure that a record clearly demonstrates that the rules for the introduction of evidence were respected; and,
4. steps are taken to ensure that members make no formal admission(s) prior to receiving information and advice from a member representative, particularly about the implications of an admission.

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

In a decision dated July 13, 2012, Commissioner Robert W. Paulson allowed the Appropriate Officer's appeal and ordered a new hearing.

The Commissioner agreed with the Appellant that the Board erred in its application of the test for disgraceful conduct by focussing on whether or not the Respondent actually knew that his bullet had struck the vehicle at the time of discharge. The Commissioner found that this knowledge was not required to establish disgraceful conduct in this case. Therefore, the Commissioner found that it was unreasonable for the Board to pursue this line of inquiry.

The Commissioner held that the failure to report was disgraceful, whether or not the Respondent knew that the round struck the vehicle at the time. The Respondent's shotgun went off in the vicinity of a vehicle which contained at least one occupant. The situation included a significant risk of injury to a person or of damage to property. As such, it was important to secure the scene and locate the discharged round, if possible. The Respondent should have told the officers who attended at the scene to assist and should have immediately reported the firearm discharge to his commander. The substantial risk involved in any situation where a firearm is discharged is enough to justify a requirement to immediately report.

The Commissioner did not agree with the ERC, and allowed this ground of appeal.

The Commissioner wrote: “As members of the RCMP, we are given the power to bear and use firearms, and there are significant rules and requirements which accompany this grave responsibility. This is the important task of operational members. Neither the Force, nor the public which we are sworn to protect, would expect that a member take his or her duties or responsibilities surrounding his or her firearm use lightly. The policy regarding the reporting of a firearm discharge is extremely important and the breach of such a policy is not a minor error.”

In rejecting the other ground of appeal, the Commissioner did agree with the ERC. He found that after the Respondent reported the matter to his commander he had complied with policy and there was no longer a failure to report. The Commissioner did not see any failure on the part of the Board to look at all of the circumstances outlined in the Agreed Statement of Facts, including the Member's failure at first to include the weapon discharge in the PROS report. As the Respondent had already reported the discharge of his weapon to his commander, his failure to include it in his PROS report was not a failure to report, and was not disgraceful. However, to the Commissioner, the issue of not including the matter in the PROS report would have been more appropriately considered as an issue of failing to obey an order, which was conduct not alleged in the Notice, and therefore not conduct for which the Appellant was seeking to discipline the member.

As he was bound by s. 45.16 of the Act, the Commissioner ordered a new hearing, but directed that it take place as soon as possible.