Grievance Case Summary - G-320

An individual with whom the Grievor was acquainted entered a bar where the Grievor was assisting his spouse, who was the owner of the bar. The Grievor encountered the individual in question in the men's washroom of the bar and saw him engage in suspicious behaviour involving a large amount of cash. He was told by him that he was using the money to purchase drugs. The individual left the bar several minutes later. Within 15 minutes, several members of the RCMP who were investigating an armed robbery at a nearby location attended at the bar and told the Grievor that they had reason to believe that the suspect in the robbery may have entered the bar. They provided him with a description of the suspect that corresponded somewhat to that of the individual whom the Grievor had encountered in the washroom. However, the Grievor told them that no one matching that description had been at the bar. Some 20 minutes later, after the members had left the bar, the Grievor sought them out and identified the individual as a possible suspect. The individual was arrested later that evening and was subsequently convicted of the robbery. This incident led to the Grievor becoming the subject of a Code of Conduct investigation and being suspended from duty. A recommendation that he should cease receiving his pay and allowances was accepted by the Respondent on the grounds that the evidence established that the Grievor had intentionally lied to his colleagues when he indicated that no one matching the description of the suspect had been at the bar. The Respondent indicated that it was inconceivable to him that the Grievor, given that he had over 20 years of experience as an RCMP member, had failed to immediately realize that the suspicious activities which he witnessed in the washroom were an indication that the individual in question was the suspect in the armed robbery. An RCMP Adjudication Board (the "Board") which reviewed the allegations of misconduct against the Grievor concluded that the allegations had not been established. The Board acknowledged that the Grievor's conduct was "disappointing" but it attributed his actions to lack of sleep and consumption of alcohol. The Grievor's pay and allowances were therefore reinstated but only from the Board's decision.

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.

As a result of the Board finding that the allegations of misconduct against the Grievor had not been established, the Force was required to retroactively terminate his suspension, which also meant that he was entitled to receive his pay and allowances for the full period of the initial suspension, according to the RCMP Regulations.

As for the merits of the decision itself, the Respondent's assessment of the evidence is seriously flawed. The evidence available to him did not conclusively establish that the Grievor intentionally withheld information about the suspect in the armed robbery. It was unfair of the Respondent to presume that the Grievor's longstanding experience with the Force would have made it readily apparent to him that the suspicious activities that he witnessed in the washroom were linked to the armed robbery. Absent clear evidence of an intention to provide misleading information, the decision to stop the Grievor's pay and allowances cannot be justified.

The grievance should be allowed.

The Commissioner agreed with the Committee recommendation and allowed the grievance. With regard to the RCMP Stoppage of Pay and Allowances Regulations, the Commissioner 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 stated that as a result of the Adjudication Board's decision that the allegations against the member were not established and his subsequent reinstatement, the Grievor was entitled to receive pay and allowances retroactively from the date of the stoppage of pay order, until the effective date of his reinstatement.