D-127 - Adjudication Board Decision

Through the evening of January 30, 2009 and the morning of January 31, 2009, the Appellant, who was off-duty, attended the home of Mr. and Ms AB on several occasions. Mr. and Ms AB, who did not know the Appellant, allowed her to use their telephone. The Appellant consumed some beer in their presence and admitted to having consumed other beers over the course of the evening. While at the residence of Mr. and Ms AB, the Appellant contacted RCMP dispatchers several times to complain about a dispute with her ex-boyfriend, EB, who lived nearby. The dispute centred around the fact that some of the Appellant's possessions were at EB's residence and EB was refusing to let the Appellant take them away. Cst. DK responded to the complaint, attended EB's residence and determined that the matter would best be dealt with the next morning. Cst. DK advised the Appellant of that determination. While speaking by telephone to dispatchers and to Cst. DK from the residence of Mr. and Ms AB, the Appellant became upset with the manner in which her complaint was being handled. The Appellant eventually left the ABs' residence in the early morning hours and was seen driving her truck by Ms AB. The next morning, the Appellant called the ABs' residence and asked Ms AB to "not talk to anybody about anything that had happened the night before".

An adjudication board (Board) held a hearing into one allegation of disgraceful conduct brought against the Appellant as a result of these events. The Appropriate Officer Representative (AOR) called several witnesses. At the close of the AOR's case, the Member Representative (MR) indicated that she would be calling no evidence. She also brought a motion for non-suit, alleging that the AOR had failed to present evidence on some of the particulars of the allegation and arguing that the particulars themselves did not disclose disgraceful conduct. The MR acknowledged to the Board that her motion would be unsuccessful if there was at least some evidence going to the essential elements of the offence of disgraceful conduct and that, in such a case, the Board would then have to decide if the allegation had been established on a balance of probabilities. Both the AOR and MR indicated an understanding that it was not the Board's role, at the stage of a non-suit motion, to weigh the evidence or assess its reliability or probative value. The Board heard the parties' submissions on the motion and adjourned the proceedings. The Board re-convened and rendered an oral decision finding that the allegation had been established. It made no mention of any decision on the motion for non-suit at that time, although in its written decision on the allegation issued later, the Board wrote that it had denied the non-suit motion. The Board then accepted a joint proposal for sanction consisting of 10 days' forfeiture of pay and a reprimand, adding a recommendation for continued counselling.

On appeal, the Appellant's main argument was that the Board had breached its duty of procedural fairness by failing to rule on the non-suit motion at the hearing and then failing to provide an opportunity to the Appellant to make thorough submissions on the allegation itself. The Appellant requested that the Commissioner of the RCMP order a new hearing into the allegation.

After the Respondent provided a submission in response to the appeal, the Appellant provided a rebuttal submission.

The ERC found that members who are subject to disciplinary hearings before adjudication boards must be accorded a high degree of procedural fairness and that the right to make full closing submissions on the merits of an allegation is enshrined in subsection 45.1(8) of the RCMP Act. The Board had not provided to the Appellant an opportunity to make comprehensive submissions regarding the merits of the allegation and the quality, reliability and probative value of the evidence adduced. Although the MR reviewed the weight and credibility to be ascribed to the evidence in certain instances, the submissions she was making were primarily focussed on the motion for non-suit, a context which differs substantively from the more thorough submissions relating to the merits of an allegation. In failing to explain and follow a clear process for the receipt of submissions, the Board breached the Appellant's right to procedural fairness and, in particular, her right to be heard as part of a fair hearing and to provide representations.

The ERC recommended to the Commissioner of the RCMP that he allow the appeal, request submissions from the parties regarding the merits of the allegation and, pursuant to paragraph 45.16(2)(c) of the RCMP Act, make the finding that, in his opinion, the Board should have made as to whether the allegation is established. Although typically the remedy for breach of procedural fairness is to order a new hearing, the ERC was of the view that the Commissioner, in making his own finding pursuant to paragraph 45.16(2)(c) of the RCMP Act, could cure the procedural breach made by the Board by obtaining and considering the parties' submissions. All the evidence was on the record and the Appellant had a full opportunity to cross-examine all of the Respondent's witnesses. A referral to a new board for a new hearing would entail significant further delay and would be subject to concerns regarding testimony provided after a delay of six years.

The ERC also recommended to the Commissioner that he rule that the rebuttal submission filed by the Appellant was not permitted pursuant to the framework governing an appeal of the Board's decision contained in the RCMP Act.

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

The Appellant presented an appeal of an adjudication board decision rendered on April 29, 2011. The Commissioner agreed with the Appellant and the ERC that the Board breached the Appellant's right to procedural fairness by failing to provide her an opportunity to make comprehensive submissions on the allegation. As a result, the Commissioner declares the Board's decision invalid.