D-128 - Adjudication Board Decision

While on deployment to the Vancouver Olympic Games in February 2010, the Appellant was arrested for shoplifting. She was sent back to Ottawa, and suspended with pay. One allegation of disgraceful conduct was brought against her. At the hearing on the allegation, the Appellant submitted an “admission of facts.” The admission of facts was to the effect that the “[translation] Appellant admits the allegation as specified in the notice of hearing” with details on the number of items stolen and their value. In view of this admission, the Adjudication Board concluded that the allegation was founded. Witnesses were heard during the hearing into sanction. The Appellant, by expert evidence, presented as a mitigating factor that, although she had admitted committing the theft, there were stressors present which had caused major depression and she was in an altered state of mind at the time of the theft. The Adjudication Board ordered the Appellant to resign within 14 days or be dismissed.

On appeal, the Appellant challenged the Board's findings regarding its decision on the sanction. She specifically argued that the Board had not given sufficient weight to certain mitigating factors and failed to apply the principle of parity of sanction. The Appellant also argued that the Board had rejected part of the uncontradicted evidence of her expert witness. Finally, the Appellant challenged some of the Board's findings of fact.

Adjudication boards are responsible for examining and weighing evidence submitted to them, and for assessing the credibility of witnesses. Unless a manifest or determinative error is made, the Commissioner should not modify their findings on appeal. The ERC found that the Adjudication Board had examined and assessed all the witnesses' evidence and had clearly formulated its findings in that regard in its written decision. It concluded that the Adjudication Board had not made any manifest or determinative errors in its assessment of the evidence, and the relevance of this assessment to render its decision on the sanction. In terms of the Board's treatment of the evidence submitted by the Appellant's expert witness, the Board clearly indicated in its decision why it had not subscribed to the expert's argument that the Appellant had been in an altered state of mind or automatism when she shoplifted. The Board was aware of the requirements set out in Pizarro v. Canada (Attorney General), 2010 FC 20, and of the importance of explaining the reasons for rejecting the evidence submitted.

To reach a decision on sanction, the Board examined the evidence submitted, all the significant and relevant mitigating and aggravating factors, and imposed a sanction within the range of those in keeping with the principle of parity of sanction. The ERC concluded that the fact that the Board had imposed a severe sanction in the case at hand did not constitute grounds for modifying the sanction in question because no manifest or determinative error was made in the Board's reasons or findings.

The ERC recommended the appeal be dismissed.

The Commissioner's decision, as summarized by his office, is as follows:

[TRANSLATION]

In a decision rendered on June 1, 2016, Commissioner Robert W. Paulson agreed with the ERC's findings and recommendations and dismissed the Appellant's appeal from the Adjudication Board's decision ordering the Appellant to resign within 14 days or be dismissed.

The Commissioner rejected the Appellant's argument that the Adjudication Board erred in the assessment of the evidence of the expert witness. Considering the principles set out in R. v. Lavallée, [1990] 1 S.C.R. 852 and Pizarro v. Canada (Attorney General), 2010 FC 20, the Commissioner determined that the Adjudication Board was not required to accept the expert evidence furnished by the Appellant. The reasons provided by the Adjudication Board to dismiss the expertise, including the altered state of consciousness doctrine, do not reveal any palpable or overriding errors.

As for the assessment of the Appellant's intent to steal, the Commissioner found that the Adjudication Board correctly considered this issue as the Appellant had introduced the altered state of consciousness doctrine, despite her admission. The Commissioner did not find any palpable or overriding errors in this regard.

Furthermore, the Commissioner disagreed with the Appellant's position that the Adjudication Board identified the absence of an agreed statement of facts as an aggravating factor. The Adjudication Board's observations concerning the absence of an agreed statement of facts do not reveal any palpable or overriding errors.

As for the Adjudication Board's findings of fact, the Commissioner determined that they were not inconsistent with the evidence presented. In the absence of any palpable or overriding errors, there is no need to intervene.

The Commissioner also noted that the Adjudication Board reasonably weighed the mitigating and aggravating factors, but then went on to find that the mitigating factors were not sufficient to mitigate the Appellant's misconduct. The Adjudication Board also considered the authorities submitted by the Appellant and gave extensive reasons as to why it did not consider them to be proper precedents. Thus, there is no need to vary the sanction imposed by the Adjudication Board.

Finally, the Commissioner rejected the Appellant's argument that the Adjudication Board should not have ruled on settlement privilege because no objection was raised. However, in light of the Appellant's interventions at the hearing and final submissions, the Commissioner found that the Adjudication Board was right to address this issue.

Ultimately, the Commissioner did not identify any palpable or overriding errors in the Adjudication Board's decision. He confirmed the Adjudication Board's decision to order the Appellant to resign from the RCMP within 14 days of this decision or be dismissed.