D-123 - Adjudication Board Decision

The Adjudication Board (Board) found that the Appellant engaged in disgraceful conduct by sending the Complainant unwanted, inappropriate, and threatening text and voice messages which made her feel unsafe and uncomfortable, and by conducting an unauthorized information search. It found that other allegations of disgraceful conduct were not established. The Board imposed a global sanction consisting of a reprimand, a 10-day forfeiture of pay, and a recommendation of counselling. That was stricter than the penalty the parties jointly proposed. The Board added that it would have imposed a 21-day forfeiture of pay if the RCMP Act did not cap such sanctions at 10 days.

The Appellant appealed on numerous grounds, including that the Board's conduct raised a reasonable apprehension of bias, he was denied procedural fairness, various findings of fact were not supported, and a 21-day forfeiture of pay represented an excessive sanction.

The ERC concluded that an informed person who thought the matter through realistically and practically would not perceive that the Board was biased against the Appellant. The Board's questions and interventions were appropriate, and some even favoured the Appellant. The Board properly considered information and reviewed submissions before reaching reasoned conclusions. Although the Board may have made minor errors, these were not significant enough, either individually or cumulatively, to raise an apprehension of bias.

The ERC also found that the Board did not breach the Appellant's right to procedural fairness. Rather, the Board's consideration of the record, its treatment of parties and witnesses, and its reasoning process, were each reasonable, sound, and consistent with relevant legal principles.

The ERC supported deferring to the Board's factual findings because it found no palpable or overriding error. Specifically, the Board seemed to make factual findings on the basis of clear and convincing evidence. It also appeared to weigh evidence, testimony, and credibility in accordance with applicable jurisprudence.

Lastly, the ERC found that the imposed sanction was neither excessive nor unfairly determined. The actual penalty involved a 10-day pay forfeiture, not a 21-day forfeiture as the Appellant had asserted. The Board had told the parties it preferred a higher penalty than what was proposed. It then invited submissions on the matter. Neither party disputed the issue. In the ERC's view, the Board's analysis demonstrated that it weighed the available evidence, balanced aggravating and mitigating factors, and generally offered solid reasons for the penalty it ordered.

The ERC recommended to the Commissioner of the RCMP that he deny the appeal.

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

In a decision dated November 13, 2012, Commissioner Paulson agreed with the ERC's findings and recommendations and denied the appeal.

The Commissioner agreed with the ERC that an informed person, thinking the matter through realistically and practically, would not perceive bias on the Board's part towards the Appellant. He further agreed with the ERC that the Appellant's right to procedural fairness was not breached by the Board's interventions during the hearing, by the Board's reliance on case law not cited by the parties, or by the Board Members referring to their experience with domestic dispute matters when assessing witness testimony.

The Commissioner also agreed with the ERC that the Board did not engage in result-driven reasoning. He further agreed that the Board's findings were supported by clear and convincing evidence and that heightened deference is owed to the Board's findings of fact, including the weighing of evidence and matters of credibility.

The Commissioner further agreed with the ERC that the Board's consideration of the record, its treatment of parties and witnesses, and its reasoning process, were reasonable, sound, and consistent with relevant legal principles.

With respect to the appeal of the Board's decision on sanction, the Commissioner agreed with the ERC that the Board gave clear and fact-driven reasons in support of its decision and that the sanctions imposed were reasonable. The Commissioner found that the Board weighed the evidence, identified aggravating and mitigating factors, and explained why the parties' joint submission on sanction should not be given deference in this case.