Grievance Case Summary - G-272

The grievance concerned a notice which the Grievor received from the Force that he would be administratively discharged on the grounds that his appointment was the result of "a fraudulent statement" that he had made, in that he had failed to disclose to the Force, when questioned about his past, that he had been involved in various illegal activities while employed in a family-run auto body shop.

The Grievor's application to become a member of the RCMP was considered in the early part of 1995. Part of that process involved determining whether he was a person "of good character", which is a requirement for appointment as an RCMP member established pursuant to s. 9.1 (1) of the RCMP Act. For that purpose, the Grievor underwent what is referred to as a "security interview" where he was asked a series of questions designed to determine whether he had ever engaged in serious wrongdoing. There was no information revealed by the Grievor that caused any concern to the Force. He was adamant that he had never engaged in any wrongdoing. It was not long after that, however, that the Force received a letter from the Grievor's estranged sister-in-law in which very grave accusations were made about the Grievor, his brother and father engaging in various illegal activities, including that of selling stolen vehicles to the public, rolling back odometers on vehicles and obtaining safety inspection certificates for vehicles which had not actually been inspected. The Force determined at the time that there was no basis to further investigate these accusations because one of the Grievor's character references, who was himself a member of the Force, indicated that he had reason to believe that the accusations had been fabricated.

However, in April 1996, just three months after the Grievor had been sworn in as a member of the RCMP, the investigation was reopened when new information was received about suspicious activities associated with vehicles that had been repaired at the Grievor's family's auto body shop. The Grievor was interviewed by the Force and told of some of the accusations against him, which he maintained were completely false. A statement was received from a member of another police force that he had inspected a vehicle repaired by the Grievor whose vehicle identification number (VIN) was loose and not properly secured and missing the federal certification number, the service parts identification label and truck camper loading information label, all of which suggested that the vehicle or some of its components had been stolen and a deliberate attempt had been made to conceal that fact. In addition, it was established that the transmission came from a stolen vehicle. An Administrative Discharge Board (ADB) was constituted for the purpose of reviewing the Designated Officer's application to have the Grievor discharged. The Grievor was permitted to submit a written rebuttal to the Notice of Intention to Discharge but the ADB declined his request for an oral hearing because it concluded that its "findings did not require it to assess the competing credibility of witnesses as between the parties". In his written rebuttal, the Grievor called into question the credibility of his sister-in-law and two other witnesses whose written statements formed part of the evidence presented by the Force. With respect to the vehicle that he had repaired and which had been found to have missing identification labels, the Grievor stated that he had not noted any of these irregularities.

The ADB accepted that, with respect to most of the accusations, the evidence was deficient so it was only prepared to conclude that the Grievor's activities appeared "suspicious". There were, however, three accusations which the ADB found to have been established on a balance of probabilities. First, the ADB was satisfied that the Grievor had obtained safety inspection certificates for vehicles that had not been properly inspected. The basis for that conclusion was that the Grievor "did not specifically deny it". Secondly, the ADB accepted that the Grievor had been party to discussions concerning the replacement of VIN plates and odometer tampering. Once again, the ADB's rationale was that this particular accusation was "not specifically denied" by the Grievor. Thirdly, the ADB concluded that there was sufficient evidence to establish that the Grievor must have known that there was something amiss about the vehicle that he had worked on. While acknowledging that it was the Force which had the burden of proof, the ADB concluded that the Force had, with respect to that vehicle, established a "strong prima facie" case which the Grievor had failed to rebut. The ADB then determined that this evidence constituted "similar fact evidence" for the purpose of assessing the evidence surrounding other accusations of wrongdoing involving stolen vehicles and stolen vehicle parts. The ADB stated that "the principle of similar fact evidence ... permits an inference that negates explanations of coincidence" and "that the suspicious origin of some of the vehicles and/or some of their replacement parts" was not "the result of coincidental bad luck" on the part of the Grievor's family.

The ADB's findings were accepted without reservation by the appropriate officer who issued the Notice of Discharge and by the Level I adjudicator who also determined that there had been no unfairness in the ADB's failure to hold an oral hearing. The fact that the proceedings concerned events that occurred before the Grievor joined the RCMP meant that there was less justification for an oral hearing than if the events had occurred after the Grievor joined the Force. He identified case law addressing the criteria that the RCMP's discharge and demotion boards must consider in assessing whether or not to hold an oral hearing.

On September 17, 2002, the ERC issued its findings and recommendations. In coming to its conclusions, the Committee found that the failure to hold an oral hearing left too many critical questions unanswered. There is far more suspicion that the Grievor may have engaged in serious wrongdoing than there is evidence to that effect. If the ADB had conducted an oral hearing, the Grievor would have been in a much better position to defend himself against the allegation that he had made a fraudulent statement at his security interview. A hearing would have given him the opportunity to cross-examine witnesses who accused him of criminal wrongdoing, the opportunity for him to come face to face with the members of the ADB and the chance to give them a better appreciation of his credibility. The Grievor would also have had the opportunity to call witnesses to refute any suggestion that he was dishonest and corrupt.

Contrary to what the ADB stated, there was a serious issue of credibility involved in this proceeding, both in terms of the Grievor's credibility and that of other witnesses who provided evidence against him. Notwithstanding the fact that the proceeding addresses conduct which occurred before the member joined the Force, the fact that the Grievor would lose his employment if he was found to have made a fraudulent statement at his security interview was a compelling reason to hold a hearing.

It was not sufficient for the Force to present evidence which establishes that a series of suspicious activities occurred at the Grievor's family's auto body shop. The evidence also had to establish that the Grievor either knew about such activities and did nothing to stop them or turned a blind eye to them. The evidence did not establish that fact in a clear and convincing fashion. The only evidence which links the Grievor directly to serious wrongdoing came from three witnesses whose credibility was called into question but who were never subjected to cross-examination by the Grievor. Finally, the Committee pointed out that the ADB misconstrued the principle of "similar fact evidence" which was applied in a manner that is inconsistent with its permitted uses.

The Committee considered holding its own hearing in this case. However, given that more than 5 years would have elapsed, the Committee did not want to prolong the process further. Accordingly, the Committee recommended that the grievance be allowed.

On February 13, 2003, the Commissioner rendered his decision, as follows:

The Commissioner agreed with the Committee's recommendations to allow the grievance and to set aside the Notice of Discharge without returning the matter to a new administrative discharge board. Although he agreed with the findings of the Committee, his reasons for upholding the grievance focussed on whether administrative discharge on the ground of irregular appointment was appropriate in the circumstances of this case. He concluded that under s. 34 of the RCMP Regulations, 1988, the Grievor's discharge may have been possible within the two-year period on the basis that his appointment resulted from an administrative error in the nature of an incomplete suitability investigation. After the two-year period, however, there was no choice but to ground the discharge on "a fraudulent statement," and yet, the Force had actual knowledge of the facts it claimed the Grievor had failed to disclose during the screening process and prior to his engagement. It could not therefore claim that the appointment was "based on" the misrepresentations.