NC-005 - Stoppage of Pay and Allowances

The Appellant, a married member, engaged in sexual activities individually with two female civilians, MB and MM, on various occasions while on duty. Some of the activities with each of MB and MM took place in the Appellant's police vehicle and in RCMP detachments. A Code of Conduct investigation was initiated through which recorded statements were obtained from MB, MM, the Appellant and other members of the Force. In their statements, MB and MM described their respective relationships with the Appellant and both indicated that the Appellant had threatened to harm them if they disclosed the activities. In his statement, the Appellant admitted to the sexual activities but denied that he had made any threats.

The Respondent served the Appellant with a notice of his intent to order the stoppage of the Appellant's pay and allowances (SPA Notice) to which was attached the material that the Respondent had considered in issuing the SPA Notice. While that material included a copy of the Investigation Report and transcripts of two statements given by MB, the Appellant was otherwise left to rely on written synopses in the Investigation Report of his own statement as well as those given by MM and other Force members. In his Response to the SPA Notice, the Appellant argued that such synopses were insufficient disclosure and that he should receive all relevant material which was available to the Respondent. He also argued that the criteria for the imposition of an Order to Stop Pay and Allowances (SPAO) were not met. After reviewing the Appellant's Response, the Respondent ordered that the Appellant's pay and allowances be stopped. In support of this SPAO, the Respondent found that, in the context of an SPAO process, he was not required to consider or disclose to the Appellant full witness statements. He further determined that the requisite criteria for the imposition of an SPAO had been met. The Appellant appealed this decision, arguing that the Respondent breached his right to procedural fairness by failing to consider and disclose all available material. The Appellant also argued that certain comments made by the Respondent in the SPAO raised a reasonable apprehension of bias.

The ERC found that in the context of the SPA process, which can have an immediate and critical effect on a member, the Respondent was required to disclose to the Appellant all available relevant evidence including audio recordings of witness statements if no transcript was available. Such steps would ensure that the Appellant had an opportunity to fully participate in the SPA process and make representations effectively. Further, the Respondent was required to consider all available evidence prior to issuing an SPAO. The Respondent's omissions in this regard breached the Appellant's right to a fair hearing. The ERC then addressed the Appellant's argument regarding an apprehension of bias. While certain isolated comments made by the Respondent were speculative and evoked connotations which were not reflective of the allegations, they would not persuade an informed person who read the SPAO as a whole that there was a likelihood of bias in the Respondent's decision to issue the SPAO.

The ERC recommended that the adjudicator allow the appeal and declare invalid the SPAO issued by the Respondent. The ERC further recommended that the adjudicator (i) order the disclosure to the Appellant of all available written transcripts and/or oral recordings of witness statements, as well as a relevant document, and permit the Appellant to make submissions to the Respondent based on such disclosure; and (ii) remit the matter to the Respondent for a new decision.

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

In a decision dated April 27, 2017, the Commissioner found that the Appellant established that the SPA Order was issued in a manner that breached the principles of procedural fairness. The appeal is allowed.

The Commissioner agreed with the ERC that the Respondent was required to disclose all available and relevant evidence to the Appellant, including witness statements in audio recording or in transcript form. This would give the Appellant the opportunity to present a full and fair response to the Notice of Intent to order the SPA. In addition, the Commissioner held that the Respondent erroneously determined that he was not required to consider all available and relevant evidence prior to issuing the SPA Order. This omission breached the Appellant's right to a fair hearing.

Like the ERC, the Commissioner found that it was not necessary to consider the Appellant's arguments on the merits of the SPA Order given the conclusion on the breaches of procedural fairness.

The Commissioner accepted the ERC recommendation and declared the SPA Order invalid. Given that the Appellant left the RCMP since filing the appeal, the Commissioner directed the Respondent to ensure that the Appellant's pay and allowances be paid up to the date of his discharge.