D-139 - Adjudication Board Decision

The Respondent brought forward an Allegation that the Appellant had conducted himself in a disgraceful manner that could bring discredit on the RCMP. The alleged conduct related to the Appellant’s behaviour and communications with a former long-term girlfriend, while off duty. Particular 3 of the Allegation, set out in the Notice of Hearing (Notice), referred to the Appellant having “criminally harassed” her. A hearing took place before an RCMP Adjudication Board (Board). As the hearing commenced, the Respondent asked the Board to amend Particular 3 by removing the word “criminally” before the term “harassed”. The Board heard submissions from the parties and granted the amendment. The hearing then resumed, during which the parties called evidence and made submissions. The Board found the Allegation established. As proposed by the parties, the Board imposed a sanction consisting of a reprimand and the forfeiture of five days of pay.

The Appellant appealed the Board’s finding that the Allegation had been established. He raised several grounds of appeal, including two grounds relating to the Board’s decision to amend Particular 3.

The ERC addressed the two grounds relating to the amendment of Particular 3, as they were determinative of the appeal. The ERC found that the Board had made palpable and overriding errors when it amended Particular 3 of the Notice, contrary to requirements set forth in subsection 45.11(1) of the RCMP Act. That subsection permitted an amendment to correct a technical defect in the Notice that did not affect the substance of the Notice, and that did not prejudice the member’s defence. In this case, the amendment had changed the Appellant’s alleged misconduct from “criminal harassment” to “harassment”. As a result, the ERC found that subsection 45.11(1) was violated; the substance of the Particular was changed, it was not a technical defect in the Notice, and the amendment prejudiced the Appellant in the conduct of his defence. Moreover, the Board had explained that it amended Particular 3 further to subsection 43(5) of the RCMP Act, yet subsection 45.11(1) of the RCMP Act and the jurisprudence did not allow for an amendment under that provision. Finally, the ERC found that the amendment resulted in procedural unfairness. The Appellant had prepared to defend himself against an allegation of criminal harassment. However, at the beginning of the hearing, that allegation was changed from criminal harassment to harassment. The Appellant lost the opportunity to reasonably know and meaningfully respond to the case against him. Based on the foregoing, the ERC found that the Board’s decision could not stand.

The ERC recommended that the Commissioner allow this appeal. Given that the amendment to Particular 3 had tainted the proceedings, the ERC recommended a new hearing. 

The Commissioner accepted the ERC's recommendation and allowed the appeal.