Conduct (Discipline) Appeals
In July 2014, the Appellant and other members arrested two individuals (GS and JO) for drug trafficking. A search was also done of their residence. An amount of money was seized from each of GS and JO. Both amounts were turned over to the Appellant as the designated exhibit person on that investigation. In May 2015, GS attended the detachment to request that her seized money be returned to her. The Force was not able to locate her money. When the Appellant was questioned, he could not shed further light on the missing exhibits, despite his notes indicating that these amounts were turned over to him. A Code of Conduct investigation was undertaken into the Appellant for failing to properly handle and account for money coming into his possession. The Conduct Authority (CA) found the allegation established and imposed a reprimand and seven (7) days forfeiture of pay. The Appellant appealed solely the conduct measures imposed.
The Appellant alleged that the CA's decision contravened the principles of procedural fairness as it gave no reasons for the chosen conduct measures. The Appellant also submitted that the conduct measures imposed contravened the principles of parity of sanctions and did not meet the principles set out in the Conduct Measures Guide.
The ERC found that the requirement for written reasons applies in the Force's conduct cases and extends not only to reasons for finding one or more allegations have been established but also to reasons supporting the imposition of the particular conduct measure. As the Respondent had given no reason in support of the conduct measures imposed, the ERC found that it was a breach of procedural fairness. Contrary to the Appellant's assertion, the ERC found there was no undue delay in imposing discipline on the Appellant as the starting point for considering delay is when an employer is made aware of the employee's conduct not when the breach was committed.
The ERC found that the Respondent did not follow the three-part test set forth in the Force's Conduct Policy and the Guide when he imposed conduct measures on the Appellant. As the Respondent provided no reasons, the Commissioner owes no deference to the Respondent's imposition of conduct measures and can make his own assessment of conduct measures.
ERC Recommendation dated August 2, 2016
The ERC recommended to the Commissioner of the RCMP that he allow the appeal in respect of the conduct measures imposed on the Appellant by the Respondent. The ERC also recommended to the Commissioner that he impose on the Appellant a written reprimand in respect of the Allegation and the Appellant's conduct in failing to properly handle and account for money coming into his possession in the performance of his duties, contrary to Section 4.4 of the Code of Conduct.
Commissioner of the RCMP Decision dated February 21, 2017
The Commissioner, or a delegate, has rendered his decision in this matter, as summarized by his office:
The Appellant was responsible for processing exhibits during a drug investigation – this included two exhibit bags with a total of $660 in cash which was seized from two suspects. After the criminal proceedings were completed, one of the suspects attempted to retrieve the cash which was seized from her. Both of these exhibits had been given to the Appellant, however they could not be located, the Appellant had no recollection of handling them and there was no documentation to indicate how they were processed. A Code of Conduct investigation did not demonstrate any dishonest behaviour on the part of the Appellant, but did establish the Appellant failed to process the exhibits in accordance with policy. The Respondent found that the Appellant failed to properly handle and account for money which came into his possession in the performance of his duties contrary to s. 4.4 of the Code of Conduct. The Respondent imposed a reprimand and a forfeiture of seven days pay as conduct measures.
The Appellant accepted responsibility for his actions and accepted the Respondent's decision that a Code of Conduct offence had been established. The Appellant appealed the conduct measures – arguing that the forfeiture of pay was grossly disproportionate and the narrative of the reprimand was inappropriate.
The Conduct Appeal Adjudicator found that the Respondent did not provide any reasons for the conduct measures which were imposed. The appeal was allowed because the decision on conduct measures was clearly unreasonable and there was a breach of procedural fairness. The Conduct Appeal Adjudicator found that conduct measures should be determined through a four step process:
- Determine the recommended range of conduct measures referred to in the Guide or Summary Guide given the seriousness of the misconduct;
- Determine any aggravating or mitigating circumstances;
- Consider – when appropriate – measures which are educative and remedial rather than punitive;
- Impose conduct measures which reflect the seriousness of the misconduct in the context of the policing profession.
The Conduct Appeal Adjudicator imposed the following conduct measures: two days forfeiture of pay; a direction to undergo training (relating to exhibit handling); a direction to complete a program or engage in an activity (the Appellant will review policy relating to exhibit handling); and a reprimand. The Conduct Appeal Adjudicator agreed that the narrative for the reprimand did not provide enough detail to place the reprimand in context and directed that the entire Record of Decision by the Respondent be treated as the narrative for the reprimand.
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