NC-001 - Stoppage of Pay and Allowances

This is an appeal of a stoppage of pay and allowances order (SPAO) pursuant to the new RCMP Act, Commissioner's Standing Orders and Conduct Policy. On September 29, 2014, a Police Service (PS) flagged and downloaded an image of child pornography from an IP address. After securing a production order, the PS learned that the IP address was subscribed to the Appellant. The PS obtained a search warrant for the Appellant's computer devices located at his residence and executed the search. Although the Appellant's computer was highly encrypted, the PS found some evidence of child pornography on the Appellant's computer. The Appellant was suspended from duty with pay. He was later arrested for accessing and possessing child pornography.

A few weeks later, the Appellant was served with a Notice of Intent to order the stoppage of pay and allowances. The PS investigation report was provided to the Appellant the following day, although there were pages missing. The Respondent subsequently disclosed the missing pages as well as the transcripts of the three warned statements given by the Appellant. The Appellant's member representative (MR) filed written submissions objecting the SPAO. The MR argued that the Appellant was not clearly involved in the offence, the Notice was deficient and failed to contain supporting documentation and there was reasonable apprehension of bias from the Respondent. Notwithstanding the submissions, the Respondent issued the SPAO. The Appellant appealed this decision.

The Appellant argues that there is no clear involvement as required by the Conduct Policy. According to the MR, the evidence suggests that someone else could have used the Appellant's internet connection. The Appellant argues that the Respondent used the wrong standard of proof to determine whether the SPAO was warranted (prima facie vs balance of probabilities).

The Appellant argues that the Respondent breached his right to procedural fairness because the Notice of stoppage of pay and allowances was deficient as the grounds set forth in the Notice did not permit the Appellant to know the case to be met. Further, the disclosure was deficient as the audio/video and transcripts of the Appellant's warned statements were not provided.

The ERC found that the Respondent did not apply the correct standard of proof to the requirement of clear involvement. The correct standard of proof is the balance of probabilities based on clear and cogent evidence, not a prima facie standard. The ERC found that any issue arising from the missing documentation from the Notice of Intent were cured when the Respondent disclosed the remaining documentation and provided the Appellant sufficient time to respond adequately to the Notice of intent. The Appellant's right to procedural fairness was not breached.

The ERC recommended to the Commissioner of the RCMP that the adjudicator allow the appeal due to an error of law issuing the SPAO. It further recommended that the adjudicator remit the matter to the Respondent for a new decision pursuant to paragraph 47(1)(b)(i) of the Commissioner's Standing Orders (Grievances and Appeals) with direction to apply the correct standard of proof to the determination of whether the evidence demonstrates that the Appellant was clearly involved in the alleged conduct.

The Commissioner, or a delegate, has rendered his decision in this matter, as summarized by his office:

In a decision dated December 2, 2015, Commissioner Robert W. Paulson found that the Appellant has failed to establish a breach of procedural fairness or an error of law. The Commissioner agreed that the circumstances in this case justify the stoppage of the Appellant's pay and allowances. The appeal is dismissed.

The Commissioner agreed with the ERC that the Appellant has not established a breach of procedural fairness. The Commissioner found that there was a preponderance of evidence before the Respondent to establish the clear involvement of the Appellant in the alleged activities and that the Respondent sufficiently described the grounds in the Notice of Intent which left no doubt as to the Allegations the Appellant was facing. The Commissioner also found that any delays or errors in the disclosure did not substantively prejudice the Appellant. Like the ERC, the Commissioner found it was not necessary for the Respondent to consider all the available and relevant evidence before issuing the Notice of Intent. In fact, the details included in the Notice of Intent demonstrate that the Respondent was acting on considerably more than a mere suspicion or surmise given the amount of evidence that had been generated by the investigation by the time the stoppage of pay and allowances process was initiated. The Commissioner agreed that the Appellant has not established a reasonable apprehension of bias. The fact that the Respondent inaccurately described certain evidence did not render the decision unreasonable or the process unfair in any way.

The Appellant submitted that the Respondent committed an error of law in applying the wrong standard of proof to establish the Appellant's clear involvement in the alleged conduct. The ERC found that the Respondent erred in law in finding that the Appellant was clearly involved in the alleged conduct on a prima facie basis and that the Appellant's involvement must be established on a balance of probabilities based on clear and cogent evidence. The Commissioner disagreed with the ERC. He could not accept the assertion that the use of the term “prima facie basis”, on its own, is proof enough that the Respondent did not adequately weigh the evidence or assess the Appellant's submissions.