D-137 - Adjudication Board Decision

The Appellant met X. They started dating in early 2009, but had a volatile on-again, off-again relationship. They moved into an apartment together in March 2009. The record shows that X was unpredictable.

At the end of 2010/beginning of 2011, the Appellant stated that he had had enough of the relationship and ended the relationship with X. However, X stated that she feared the Appellant and ended the relationship. They nevertheless kept seeing each other. In the meantime, the Appellant went on supported sick leave (ODS) and was still ODS when the following incidents occurred.

In late July 2012, both the Appellant and X, who was now in another country vacationing, made plans that the Appellant would join her in that country. During the evening of August 3, 2012, the Appellant was arrested and detained by the authorities. The Appellant was charged with theft and mischief. The Appellant was convicted of the charges by the Court in the country.

Upon his return to Canada, the Appellant did not inform his superior of the conviction. When asked whether he enjoyed his holiday, the Appellant stated that he had a nice time in a different country than the one he had vacationed in. The Appellant's superiors became aware of the conviction and proceeded to order an investigation. An investigation was mandated and seven allegations of breaching the Code of Conduct were filed against the Appellant.

There were two other Code of Conduct matters involving the Appellant, however, upon agreement between the representatives, it was agreed that only this matter would be dealt with at this moment.

After a hearing, the Board rendered its oral decision on January 13 and 14, 2017. It found destruction of electronics and theft (Allegation 1), assaulting X (Allegation 2), failure to disclose criminal charges (Allegation 3) and misleading statement to an Investigator (Allegation 6) established. The Board had first found that the country's proceedings were procedurally unfair and therefore did not take the convictions as prima facie evidence of the incidents. The Board therefore reviewed the evidence that was presented before it to make its findings.

After the hearing on sanction, the Board applied the legal test to determine the appropriate sanction and ordered the Appellant to resign or be dismissed. As the Appellant did not resign, he was dismissed from the RCMP.

The Appellant filed his appeal after the statutory time limit to do so. He requested a retroactive time extension to file his appeal, which was granted. Although the time limit was extended, the Appellant's discharge order was not rescinded. The Appellant challenged the Board's findings regarding Allegations 1 and 2 and his dismissal. He argued that the Board speculated, made incorrect factual findings and ignored mitigating factors. He further alleged that the Board was prejudiced against him because it had received the Notice of Hearing for the other two matters involving him.

As findings on preliminary issues, the ERC found that, although the time limit to file his appeal was extended, the Appellant's discharge order could not be rescinded. The ERC further found that most of the documents filed by the Appellant on appeal were inadmissible because they were previously available, but were not filed at the time of the hearing before the Board.

The ERC found that the Board did not err in its assessment of the principal witnesses' credibility and applied the correct legal test. The ERC found that the Board did not err in its assessment of the evidence and its findings were supported by the evidence that there was an altercation between the Appellant and X, initiated by X. The ERC found that the mitigating factors raised by the Appellant on appeal were not raised before the Board and/or no evidence was filed to support them; therefore the Board could not be faulted for not assessing them. Lastly, the ERC found that the Appellant was precluded from raising the issue of the Board's alleged prejudice against him for two reasons: 1) the decision to proceed with only this matter was reached in agreement between the parties' representative before the proceedings began and 2) even if there was no agreement, the Appellant should have raised this issue before the Board.

The ERC recommended that the appeal be dismissed.

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

The Appellant was an RCMP member posted to "X" Division. He met X and he started dating her in early 2009. Their relationship was toxic and destructive. They would frequently break up and get back together. X was unpredictable.

Despite ending their relationship in early 2011, the Appellant and X continued to see each other. In July 2012, the Appellant and X made plans for the Appellant to visit X. During this time, the Appellant was on sick leave. On August 3, 2012, an altercation between the Appellant and X occurred. He was arrested by authorities and was convicted of theft and mischief. X did not file assault charges against the Appellant.

When the Appellant returned to Canada, he told two of his supervisors that he had a great time. He did not notify the Force that he had been convicted. At the end of summer 2012, X returned to Canada and filed a complaint with the RCMP indicating that the Appellant had assaulted her and was charged. A Code of Conduct investigation was initiated and seven allegations were brought against the Appellant.

At the hearing, the Board found that Allegation 1 (destruction of property and theft), Allegation 2 (physical assault), Allegation 3 (failure to disclose criminal charges), and Allegation 6 (making a false, misleading or inaccurate statement to a superior) had been established. At the sanction hearing, the Board ordered the Appellant to resign or be dismissed. When the Appellant did not resign, he was dismissed.

The Appellant appealed the decision and challenged the Board's finding on Allegations 1 and 2. Specifically, the Appellant argued that the Board improperly assessed the evidence, failed to address contradictions, and made its own speculations and assumptions about the evidence. The Appellant also alleged that the Board disregarded his medical status at the time of the allegation, discriminated against him, was prejudiced against him, and failed to consider his performance as a member of the RCMP.

The appeal was referred to the ERC for review, pursuant to subsection 45.15(1) of the Royal Canadian Mounted Police Act. The Chairperson of the ERC recommended that the appeal be dismissed. The Commissioner was not persuaded that the Board made any manifest and determinative errors. The appeal was dismissed and the Board's decision confirmed.