NC-041 - 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 of Luring a Child with Intent to Commit Sexual Exploitation and Breach of Trust in relation to the Appellant's alleged inappropriate sexual conduct with a member of an online vigilante group who had portrayed herself to him as a minor. As a release condition, the Appellant could not use a computer or a smartphone with data/internet service. Upon receiving the Notice of Intent (NOI) to order a SPA, the Appellant consulted a Member Workplace Advisor (MWA), who did not inform him that he had the right to be represented by the Member Representative (MR) Directorate. The Appellant prepared a brief NOI Response. The Respondent, after considering the evidence and the NOI Response, ordered the SPA. The Appellant appealed the decision and argued breach of procedural fairness as his MWA did not inform him of his right to be represented in the SPA process by the MR Directorate and he said he therefore submitted an inadequate NOI Response.

The ERC found that the Appellant was owed a high degree of procedural fairness in the SPA process, including the right to MR representation and assistance upon request. The ERC found that the Respondent clearly informed the Appellant of his right to advice and assistance by the MR Directorate in the NOI to order a SPA and that this notification was sufficient, in and of itself, to meet the high degree of procedural fairness required. The ERC found that the Respondent reminded the Appellant of this right through his lawyer who had represented him for the purpose of obtaining an extension of time to submit his NOI Response, and that this reminder was over and above what was required to be procedurally fair. The ERC found that the Appellant had the assistance of a lawyer for the purpose of seeking an extension of time, and the assistance of a MWA. Finally, the ERC found that the Appellant had an obligation to inform himself of RCMP policy regarding his rights. The ERC concluded that the Respondent's decision was not reached in a manner that contravened the applicable principles of procedural fairness.

The ERC recommended that the Commissioner dismiss the a ppeal and confirm the Respondent's SPA Order decision.

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

The Appellant’s argument simply cannot overcome the fact that the NOI clearly indicated a variety of resources that were available to him including the Health Services office, Employee Assistance Program, MR Directorate and MWA program. Moreover, the Appellant did avail himself of his criminal lawyer to obtain an extension to submit a response to the NOI, and met with an MWA. In addition, the Conduct Authority Representative, writing on behalf of the Respondent to the Appellant’s lawyer to confirm the time extension, emphasized that the Appellant, “may seek advice and assistance from a member of the [MR] Directorate”. I also agree with the ERC that Appellant’s inadequate response to the NOI cannot be blamed on the inexperienced MWA when the Appellant, himself, failed to bring a copy of the NOI to their meeting. While I acknowledge that the release conditions imposed on the Appellant created some challenges, the fact is that the Respondent first informed the Appellant about the availability of an MR in the NOI, and then his representative reiterated this information in a subsequent email to the Appellant’s defence counsel. In sum, I find no breach of procedural fairness. I accept the ERC recommendation to dismiss the appeal and fully adopt the analysis set out in the report. The appeal is dismissed.