D-122 - Adjudication Board Decision

The Appellant was alleged to have misused personal medical and other confidential information through deceit to seduce the vulnerable spouse of a member whose position reported to him. Included in this allegation was the misuse of RCMP property for an unauthorized purpose. The Appellant was also alleged to have misused a special police-use passport for personal travel and to have entered Canada with undeclared goods.

Prior to the hearing, the Force increased the sanction sought to an order to resign.

During the hearing, the Appellant denied all allegations other than his participation in a consensual extramarital affair. The lengthy hearing introduced testimony from several medical professionals and character witnesses. After the Adjudication Board heard the evidence, it found that both of the allegations were made out and that they constituted disgraceful conduct bringing discredit upon the Force.

The Board ordered the Appellant to resign following its finding that he inappropriately used confidential information to pursue an intimate relationship with a subordinate member's spouse. It decided that reprimand and the forfeiture of four days' pay was appropriate for its finding on the allegation relating to passport misuse and undeclared goods.

The Appellant argued the following grounds of appeal: the failure to conduct the hearing in the official language of his choice; his exclusion from the proceeding at various times; and a misapprehension of several aggravating and mitigating factors.

The ERC noted that the Board recognized authorities about the importance of rehabilitation and progressive discipline. The ERC also noted that these authorities underscored that dismissal is appropriate where there is a breach of trust that indicates that a member is beyond rehabilitation and no longer fit for duty.

The ERC found that the Official Languages Act applied to the hearing and that despite the Appellant's choice of an English-language proceeding, it was reasonable to have allowed counsel to examine French-speaking witnesses in French since simultaneous translation was provided.

On numerous occasions during the Appellant's testimony, he was excused from the room while counsel argued the relevance of particular lines of questioning. Not until the eighth occasion did the Appellant argue his right to be present during the entirety of the hearing. The ERC found that the Board was obliged to provide full and ample opportunity to make representations, which included his presence during all parts of the proceeding. The ERC found that the lack of an objection from the Appellant amounted to his waiver of any entitlement to that point. The ERC found that the Appellant's exclusion did not void the entire administrative proceeding, as it could in criminal proceedings.

The ERC recognized that the Board should be given considerable deference, however it found that a number of significant errors had led to a disproportionate sanction. The ERC outlined errors it found in the following considerations: the weight given to expert opinion; the test used to assess causality; the weight given to the length of the Appellant's exemplary service, the parity of the sanction; the conclusions drawn from the Appellant's apology and remorse, the effects on the Force's continued confidence in the Appellant, and the appropriateness of termination as the sanction.

The ERC disregarded altogether one of the Appellant's stated grounds of appeal, because he did not make any submissions relating to it.

The ERC recommended to the Commissioner of the ERC that he allow the appeal of the sanction and vary it to impose a reprimand and the forfeiture of 10 days' pay.

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

In a decision dated July 31, 2012, Commissioner Paulson denied the appeal and upheld the sanction imposed by the Adjudication Board.

Commissioner Paulson agreed with the ERC that the Appellant's right to procedural fairness was not breached by the Board's decisions regarding official languages during the hearing. The Commissioner further agreed with the ERC that the Appellant suffered no prejudice when he was directed by the Board to leave the room while counsel argued the relevance of particular lines of questioning. The lack of an objection from the Appellant amounted to his waiver of any entitlement to that point.

Commissioner Paulson disagreed with the ERC that the Board made significant errors that resulted in a sanction that is clearly disproportionate. The Commissioner did not find that the Adjudication Board made any palpable and overriding errors. The Commissioner found that the Adjudication Board considered the relevant factors in assessing penalty and weighed them appropriately and in a fair and impartial manner. Considering the mitigating and aggravating factors, the direction to resign was reasonable.

The Commissioner agreed with the ERC and dismissed the appeal with respect to Allegation #2.

The Appellant was ordered to resign from the Force, in default of which his dismissal would be recommended.