NC-037 - Stoppage of Pay and Allowances

The Appellant appealed a decision by the Force ordering the stoppage of his pay and allowances (SPA). The SPA order was imposed as a result of Code of Conduct allegations and statutory charges that had been brought against the Appellant in relation to three incidents of alleged inappropriate sexual conduct against another RCMP member, a detained member of the public and a victim/witness in a domestic complaint.

The Appellant’s arguments all centered on the incident involving the other RCMP Member. A Code of Conduct investigation had found that that incident was “not established”, largely because the other Member refused to provide a statement. However subsequently, during the Conduct and statutory investigations regarding the other two incidents, the Member provided a statement and the Appellant was charged criminally with sexual assault. The Appellant argued that in determining the SPA, by considering the incident involving the other Member which had been found “not established” by the Conduct process, the Respondent erred in law by breaching the principle of autrefois acquit and the rule against double jeopardy; and by introducing bad character evidence and breaching the similar fact evidence rule. The Appellant further argued that the Respondent made a clearly unreasonable decision by conflating the SPA and Conduct processes; by reversing the presumption of innocence, thereby breaching sections 11(d) and 7 of the Canadian Charter of Rights and Freedoms (Charter) and sections 2(d) and 2(e) of the Canadian Bill of Rights; by finding the evidence regarding the impact of a SPA to be irrelevant; and, by breaching the principle of stare decisis.

The ERC found that the Appeal was referable and presented within time. Regarding the merits, the ERC found that:

• The principles of autrefois acquit and double jeopardy do not apply in the SPA process as, unlike the Conduct process, the SPA process is not a disciplinary measure; it is not a process whereby the Appellant can be convicted or sanctioned. It is an interim, protective measure designed to protect the integrity of the RCMP pending the outcome of the Conduct and criminal proceedings that gave rise to it. The Respondent did not re-decide the Conduct decision, he rather took into account the fact that the incident had since led to a statutory charge of sexual assault against the Appellant which is relevant in determining the SPA. This was not a situation where the Appellant was being sanctioned twice for the same conduct.
• The Respondent did not apply a similar fact evidence analysis and did not introduce bad character evidence. He did not use the incident involving the other Member as an example of past similar bad behaviour to illustrate that the Appellant has the type of bad character to do what he is alleged to have done in the other two incidents. Rather, the Respondent considered the evidence before him as it had resulted in a statutory charge of sexual assault, and applied the test as he was required to do to determine the SPA.
• The Respondent understood the difference between the SPA and Conduct processes and that he was determining an interim SPA matter as opposed to making a final determination on a Conduct process.
• Section 11 of the Charter does not apply to the SPA process; and, bald assertions that the Canadian Bill of Rights and section 7 of the Charter were breached are inadequate.
• A decision-maker is required to consider all relevant evidence, but is under no obligation to consider irrelevant evidence. The impact of the SPA on the Appellant and his family was not relevant in determining any of the criteria for a SPA set out in the RCMP Conduct Policy.
• The principle of stare decisis does not apply to administrative tribunals; and SPA decisions rendered under the previous RCMP Act are based on a different test than the current framework and are therefore of no assistance in determining the current Appeal.

The ERC recommended that the Commissioner deny the Appeal as the Respondent’s decision to order a SPA did not contain any errors of law and was not clearly unreasonable.

The Commissioner’s decision, as summarized by her office, is as follows:

The Appellant raises two grounds of appeal: the decision is based on errors of law involving the legal principles of autrefois acquit and the rule of double jeopardy, as well as the rules of evidence governing character and similar fact evidence; and, the decision is clearly unreasonable because the Respondent reversed the presumption of innocence and failed to consider the severe consequences of the SPA. Like the ERC, I note that despite the extensive evidence regarding the Code of Conduct allegations and Criminal Code charges contained in the NOI and attachments and SPA decision, the Appellant's appeal arguments center exclusively on the [the Party] incident. The Appellant has not persuaded me that the Respondent committed an error of law in rendering the decision. The Respondent's consideration of the Criminal Code charge related to the [the Party] incident is permissible under section 12 and paragraph 22(2)(b) of the RCMP Act, and section XII.5.5.1.1 of the RCMP Conduct Policy, and furthermore, the principles of autrefois acquit and double jeopardy are not applicable since a SPA order is not a disciplinary measure and does not result in a finding of misconduct or a conviction. I accept the ERC recommendation to dismiss the appeal and adopt the thorough analysis set out in the report.