D-126 - Adjudication Board Decision

The Appellant member was alleged to have committed discreditable conduct by engaging in sexual activity while on duty and in uniform. He was also alleged to have knowingly and wilfully made a false and misleading statement to a superior officer regarding the sexual encounter. However, the particulars of the allegations were drafted such that paragraphs 5 and 6 of Allegation #1 were the same as the particulars for Allegation #2.

At the hearing, the Appellant made a qualified admission to Allegation #1 and the Appropriate Officer Representative (AOR) withdrew Allegation #2. The Board did not clarify whether the AOR was also withdrawing paragraphs 5 and 6 of Allegation #1. The parties then advised the Board that they disagreed as to whether Allegation #1 was alleging non-consensual sexual activity and, therefore sexual assault. The AOR sought to present evidence on the issue of consent and the Member Representative (MR) did not object. The hearing proceeded solely on the question of whether the sexual activity was consensual. During the Appellant's testimony, the MR elicited testimony pertaining to the withdrawn Allegation #2.

In its oral decision on the merits, the Board noted that the allegations were not wisely drafted and that paragraphs 5 and 6 of Allegation #1 were “the essence” of Allegation #2. It determined that the scope of Allegation #1 was limited solely to the sexual activity and did not extend to the subject matter of the withdrawn Allegation #2. In addition, the Board determined that Allegation #1 only alleged consensual sexual activity. The Board found that the testimony along with the Appellant's admission established Allegation #1. Despite finding that consent was not in issue, the Board made numerous findings on the issue of consent, leading to findings of fact and of witness credibility.

At the sanction hearing, the parties presented a joint submission on sanction for a reprimand, a recommendation for counselling, and a forfeiture of 10 days' pay. At the end of the sanction hearing, the Board permitted the Appellant to make an unsworn statement of apology. The Board directed that the Appellant resign within 14 days, in default of which he would be dismissed.

The Appellant appealed the Board's decision on the merits primarily on the basis of breaches of procedural fairness. He appealed the sanction decision primarily on the basis that the Board erred in rejecting the parties' joint submission on sanction. The Appellant also argued that the Board denied his Charter right to silence.

Breaches of Procedural Fairness

The ERC found that the drafting of Allegation #1 did not comply with the drafting requirements of paragraphs 43(5)(a) and (b) of the RCMP Act and contributed to the breaches of procedural fairness in the hearing and the errors in the Board’s decision on sanction.

The ERC found that the Board breached procedural fairness at the commencement of the hearing by failing to clarify whether paragraphs 5 and 6 of Allegation #1 had been withdrawn and by failing to determine whether Allegation #1 was alleging consensual or non-consensual sexual activity and thus whether consent was a relevant issue.

The ERC further found that, once the Board determined that the scope of Allegation #1 was limited only to an allegation of consensual sexual activity, the Board breached procedural fairness by admitting and relying on inadmissible, irrelevant evidence elicited during the consent hearing.

Finally, the ERC found that the breaches of procedural fairness and the unfair hearing rendered the Board’s decision invalid and a nullity and recommended a new hearing before a differently-constituted board.

Errors in Imposing Sanction

The ERC found that the Board made errors in imposing sanction. First, it erred in rejecting the parties’ joint recommendation on sanction by failing to abide by the applicable legal principles. The Board failed to give the joint recommendation the required serious consideration and respect, and failed to explain why the proposed sanction would be so lenient, unfit or unreasonable as to be unjust or contrary to the public interest or bring the administration of justice into disrepute. Second, the Board erred in its assessment of aggravating factors by considering irrelevant and inadmissible evidence. Third, the Board’s reasons for imposing sanction relied heavily on the subject matter of the withdrawn Allegation #2. Fourth, the Board erred in applying the principle of parity by mischaracterizing the cases presented by the parties and erring in the way it distinguishing them from the present case. The sanction jointly proposed by the parties fell within the range of sanctions identified by the parity cases and was reasonable in the circumstances.

Charter Right to Silence

The ERC found that, although it was not necessary to address this ground in order to dispose of the appeal, the Appellant did not provide the necessary factual foundation to establish that he had a right to silence or that it was infringed or denied.

The ERC recommended that the Commissioner of the RCMP allow the appeal on the merits and order a new hearing due to a serious breach of the Appellant’s rights to procedural fairness and a fair hearing.

In the event that the Commissioner disagreed with the recommendation for a new hearing, the ERC recommended that the Commissioner find that the Adjudication Board erred in its decision on sanction, allow the appeal on sanction and impose the sanction jointly submitted by the parties, namely a reprimand, a recommendation for professional counselling (if still pertinent) and a forfeiture of ten (10) days’ pay.

The ERC also recommended that the Commissioner remind members of the Force responsible for the drafting of allegations and particulars contained in notices of hearing of the importance of specifying clearly a separate statement of each allegation and including particulars relevant only to that allegation.

Finally the ERC recommended that the Commissioner remind members of adjudication boards that all testimony before a board must be made under oath or on affirmation.

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

In a decision dated September 11, 2015, Commissioner Robert W. Paulson found that the Board breached the Appellant's right to procedural fairness and a fair hearing prejudiced. As a result, the Board's decision is invalid.

Although a finding of a breach of procedural fairness would usually result in the matter being returned to a different adjudication board for a new hearing, the Commissioner concluded that the circumstances would inevitably lead to the same result on the merits of Allegation 1. The Commissioner exercised his authority under s. 45.16(2)(c) of the Act and found that the Appellant's actions contravened s. 39(1) of the Code of Conduct and were disgraceful and brought discredit on the Force.

The Commissioner rejected the joint sanction submission on the basis that it was unfit and that accepting it would be contrary to the public interest. The Commissioner ordered the Appellant to resign, and in default of resigning within 14 days of being served with the decision, to be dismissed.

The Commissioner agreed with the ERC that the Appellant had not provided a factual foundation to establish a Charter breach and that this ground of appeal was without merit.