Grievance Case Summary - G-318

On two different occasions in 1993, witnesses observed the Grievor having sexual intercourse with his spouse in a vehicle which was parked in a public area. The Grievor was neither criminally charged, nor disciplined as a result of those incidents. Two years later, however, he was reprimanded for having had sexual intercourse with his spouse in a vehicle that was stopped at a red light. It is at about that time that the Grievor began consulting a psychologist and underwent treatment for a sexual disorder. His treatment continued over a period of several years. In May 1999, an allegation was made against the Grievor that he had engaged in an indecent act in a public place. However, the Grievor denied that allegation. In May 2001, the Grievor was once again the subject of a complaint regarding an indecent act. That complaint was investigated by the municipal police department and, as a result, the Grievor was charged with willfully committing an indecent act in a public place in the presence of other persons, which is an offence punishable on summary conviction. The Grievor immediately shared that information with his Commanding Officer. As a result, he became the subject of a Code of Conduct investigation. One month later, he was suspended from duty with pay pending the outcome of the investigation and three weeks after that the Commanding Officer recommended that his pay and allowances be stopped. The Respondent accepted the recommendation because he concluded that the Grievor "committed an act that is unacceptable in our society and is against the law". He also described "the accumulation of several incidents of a similar nature to be a contributing factor in making a determination in this matter".

In his Level I submissions, the Grievor complained that the decision to stop his pay and allowances was designed to pressure him into resigning from the Force. He also argued that the Commanding Officer had waited too long before initiating the process to stop his pay and denied involvement in either of the two incidents that were invoked by the Commanding Officer. The Grievor complained that other members who had been charged with criminal infractions such as impaired driving continued to receive their pay and allowances. The Level I adjudicator denied the grievance because he considered that the Respondent's decision respected Force policy. He was satisfied that the delay in initiating the process was not unreasonable because the Commanding Officer did not have sufficient information in May 2001 to justify a recommendation to stop the Grievor's pay and allowances and that such information only surfaced over the course of the following several weeks. At level II, the Grievor argued that the Respondent was biased because he had known for several years about the 1993 and 1995 incidents and allowed that knowledge to influence his decision-making.

There is no legal authority for the RCMP to stop the pay and allowances of suspended members because the pertinent regulations adopted by Treasury Board failed to enunciate the criteria to be considered in making a determination in that regard. In providing Treasury Board with the authority to "make regulations respecting the stoppage of pay and allowances of members who are suspended from duty", the Act contemplates that Treasury Board will do more than spell out which officers of the Force may exercise the authority to stop a member's pay and allowances. Since that is all that the regulations set out, Treasury Board has violated the delegatus non potest delegare rule.

The Commanding Officer's delay in initiating the process appears at least partly attributable to a decision made to seek out additional information about the May 1999 incident for which the Commanding Officer later acknowledged responsibility could not be attributed to the Grievor. However, it is true that some pertinent information about the May 1999 incident did not surface until later and the delay in initiating the process does not appear unreasonable. The subsequent six-month delay before the Respondent issued his decision was necessary to allow the parties to make submissions on the Commanding Officer's recommendation. As well, the fact that the Respondent may have had prior knowledge of earlier incidents would not in itself have been sufficient reason to create a reasonable apprehension of bias.

However, the Respondent's assessment of the evidence in support of the recommendation was seriously flawed. He failed to adequately substantiate his conclusion that the Grievor's conduct fell within the category of "extreme circumstances" where Force policy allows for pay and allowances to be stopped. Specifically, he failed to consider a provision within the Force's policy which states that "[s]toppage of pay and allowances will not apply to summary convictions, provincial statutes or minor Criminal Code offences".

The grievance should be allowed.

With regard to the Committee's finding that the RCMP Stoppage of Pay and Allowances Regulations were invalid, the Commissioner stated that he did not have the legal authority to pronounce on their validity and that only a court of competent jurisdiction would be in a position to make such a determination. Consequently, for the purposes of his discussions on the merits of the grievance, he presumed that the Regulations were valid. However, he found that the grievance was moot because the Grievor had reached an agreement with the RCMP regarding the retroactive reinstatement of his pay and allowances.