Grievance Case Summary - G-319

In May 1997, the Grievor was visited at his home by a woman (the "complainant") who had previously consulted him at the detachment about the possibility of filing a complaint over a sexual assault that she had experienced many years earlier as a teenager. They ended up having sexual relations on that occasion. Several weeks later, the complainant told the Grievor's detachment commander that she had been distraught when she visited the Grievor and that he had taken advantage of her condition to persuade her to have sexual relations. As a result of that accusation, the Grievor was suspended from duty with pay and became the subject of a Code of Conduct investigation. The Commanding Officer also recommended stoppage of the Grievor's pay and allowances. The Respondent rejected that recommendation because he was not satisfied that there was evidence of clear involvement on the Grievor's part in serious misconduct. In May 1998, the Commanding Officer initiated formal disciplinary proceedings against the Grievor. He indicated to him that he would be seeking his dismissal from the Force should the RCMP adjudication board (the "Board") that would conduct the proceedings find that the allegation of misconduct had been established. Indeed, in a decision issued in May 1999 following an oral hearing, the Board did find that the Grievor had violated the RCMP's Code of Conduct and it ordered him to resign from the Force. The Board's reasons for decision were that the Grievor had "forced himself upon" the complainant and "coerced [her] into having sexual intercourse" with him. Relying upon the Board's decision, the Commanding Officer then presented a second recommendation that the Grievor's pay and allowances be stopped. This time, the recommendation was accepted by the Respondent.

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.

A decision with respect to stoppage of pay and allowances must be made within a reasonable time frame after relevant information concerning a member's actions comes to the Force's attention. The Commanding Officer failed to establish that he acted at the first available opportunity. It is unlikely that the Commanding Officer only learned on the eve of the hearing what was the nature of the evidence that would be proffered by the witnesses that he intended to call. He may have known of that evidence as early as May 1998, when the decision was made to initiate formal disciplinary proceedings against the Grievor and seek his dismissal from the Force, or he may have learned of it at a later date. Information in that regard is absent from the file but the Commanding Officer had a duty to provide it to the Respondent and not simply rely on the fact that he had just received the Board's decision which confirmed that he had been justified in his assessment of the gravity of the Grievor's misconduct.

Even if it were possible to determine that the process was initiated by the Commanding Officer in a timely fashion, the fact that the Board concluded that the Grievor had compelled the complainant to have sexual relations with him against her will was not supported by clear and convincing evidence. The Commissioner stated as much in his decision on the appeal of the Board's decision. While the Respondent's decision to stop the Grievor's pay and allowances predates the Commissioner's decision on the appeal, he ought to have reviewed the evidence and not merely contented himself with accepting the Board's conclusions at face value, particularly in light of the fact that he was aware that the Crown had decided not to lay criminal charges against the Grievor. The Force's policy on stoppage of pay and allowances appears to suggest that stoppage of pay and allowances will only be contemplated when a member is facing serious criminal charges. Finally, the decision to stop the Grievor's pay and allowances was based on a seriously flawed assessment of the complainant's credibility.

The grievance should be allowed.

The Commissioner allowed the grievance. With regard to the RCMP Stoppage of Pay and Allowances Regulations, he stated that he did not have the legal authority necessary to pronounce on their validity. Consequently, for the purposes of his discussions on the merits of the grievance, he presumed that the Regulations were valid. The Commissioner agreed with the Committee that the decision on stoppage of pay and allowances was not made within a reasonable time frame after the RCMP has been made aware of relevant information regarding a member's actions. The Commissioner ordered that the Grievor's pay and allowances be paid from the date of the Order to stop pay and allowances until his discharge from the RCMP.