D-124 - Adjudication Board Decision

The Appellant admittedly acted in a disgraceful manner by deploying his taser too hastily while trying to place a drunk and resistant suspect into a police truck. The parties proceeded by way of the Early Resolution Discipline Process (ERDP). They cited case law suggesting that a proper sanction ranged from a reprimand to a moderate forfeiture of pay. They sought penalties which respectively fell at the very low end of that range. However, the Board imposed a reprimand, a four-day pay forfeiture, and a counselling recommendation. It did so without telling the parties that it was considering a sanction stricter than those proposed, and without inviting submissions on that prospect. It reasoned that a harsher penalty was required, partly because the Appellant failed to comply with Use of Force policy, acted in anger, and had other members at the scene who could have helped him with the suspect. The Appellant appealed the decision on sanction.

The ERC considered numerous preliminary issues. It stressed that while the ERDP 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 observed that because information was not entered under oath or affirmation, or via an affidavit, the Board could consider it only if it was information upon which both parties agreed. In the ERC's view, the record showed that such information was agreed-upon. Furthermore, the ERC determined that the Board acted in a procedurally unfair way by not inviting the parties to make submissions on the possibility of a sanction stricter than those proposed. Yet it added that this breach was rectified, as the parties had an opportunity to present submissions on the impugned penalty during the appeal process.

The ERC then found that the Board's sanction decision contained overriding and determinative errors. The Board overstated the extent to which the Appellant's actions were at odds with Use of Force policy. Moreover, the Board's findings that the Appellant acted in anger, and that other members could have helped him handle the suspect, were unsupported. The ERC ultimately concluded that a sanction consisting of a reprimand and a forfeiture of two-days' pay was ideal. It reasoned that this penalty fell within the agreed-upon sanction range and that it reflected the mitigating and aggravating factors, the severity of the conduct, the nexus between the conduct and the requirements of the policing profession, and an amelioration of the Board's errors.

The ERC recommended to the Commissioner of the RCMP that he allow the appeal and vary the sanction to a reprimand and a forfeiture of two-days' pay. In addition, it recommended that:

1. information about the ERDP be 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 confirm that the member subject to discipline received this information; and,
3. adjudication boards be 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:

Commissioner Robert W. Paulson agreed with the ERC in part and allowed the appeal, having found that the Board made palpable and overriding errors.

The Board erred in improperly interpreting and applying RCMP use of force policy and the Incident Management Intervention Manual (IMIM). The applicable policy classified the conducted energy weapon (Taser) as an “intermediate device,” to be used when individuals were displaying resistant or higher risk behaviour. The Commissioner found that the use of the Taser was not, as the Board put it, “one stop short of discharging your firearm.”

The Board engaged in improper speculation, when it found that the Appellant acted in anger and that other members were available to help him handle the suspect. There was no evidence supporting these findings. The Board then committed a palpable and overriding error when it distinguished the case submitted by the parties and based its decision to increase the requested sanction (at least partly) on these unsupported findings. Further, the Board acted in a procedurally unfair way when it imposed this higher sanction without first giving the parties an opportunity to make submissions on the greater sanction it was considering. However, the Commissioner agreed with the ERC that the unfairness was rectified when the parties had a chance to address the sanction on appeal.

The Commissioner found the requested sanction on appeal to be similar to a joint submission on sanction, as the Member was requesting the same sanction that had been sought by the Appropriate Officer at the hearing. He agreed with caselaw and RCMP jurisprudence that joint submissions on sanction should not be rejected without providing clear and cogent reasons that the requested sanction was inappropriate, unfit, unreasonable, contrary to the public interest, or the interest of the Force or members, or why accepting the joint submission would bring the administration of the disciplinary system within the Force into disrepute (see also D-115).

The Commissioner found that the proposed sanction was within the range endorsed by the Board. Having regard to the facts of the case, the mitigating and aggravating factors and the referenced precedent, the Commissioner found that a reprimand and a forfeiture of one day of pay was appropriate and reasonable. He disagreed with the ERC's recommended sanction, as it appeared to be based on the Board's rationale for distinguishing the submitted precedent, yet there was no evidence that the Appellant was acting out of anger.

The Commissioner imposed a reprimand and a one-day pay forfeiture.