Discipline Case Summary
Four allegations were brought against the Appellant. Three of the allegations related to the Appellant's failure to thoroughly investigate matters and a fourth allegation related to misleading another member. An RCMP Adjudication Board (Board) was appointed to consider these allegations. However, four preliminary matters were initially addressed by the Board.
First, the Appellant requested that a summons be issued to the Chair of the Board (Chair). The Appellant required the Chair as a witness on a Motion brought to challenge the Board's institutional independence (the Independence Motion). The registrar declined to serve the summons, based on a direction received from the Chair. The Appellant then sought the Chair's recusal by explaining, in two separate recusal requests, why the Chair's evidence was required on the Independence Motion. The Chair refused to recuse himself.
Second, the Appellant requested that one of the other Board members (Board Member #2) recuse himself because of a perceived conflict of interest. Board Member #2 then sent to the Appropriate Officer Representative (AOR), without copying the Appellant's Member Representative (MR), a draft decision denying this recusal request. Board Member #2 and the AOR also had a telephone conversation in which the AOR made a minor comment regarding the draft decision. Board Member #2 eventually denied the recusal request. When the MR was informed of the exchanges which had taken place between the AOR and Board Member #2, he brought a further request seeking Board Member #2's recusal, which was denied.
Third, the Board heard the Appellant's Independence Motion. After hearing the evidence of two witnesses including Witness A and the parties' submissions, the Board adjourned to deliberate. Four days after the adjournment, and before any decision on the Independence Motion was issued, the Chair was observed discussing the Independence Motion with Witness A. The Appellant sought the recusal of the Chair on the ground that the Chair's actions raised a reasonable apprehension of bias. The Chair denied the recusal request.
Fourth, after the Board released its decision denying the Independence Motion, the Appellant brought a new motion seeking the recusal of the Chair and the entire Board, as well as a reopening of the Independence Motion (Motion to Re-open). The Appellant based the Motion to Re-open on information suggesting that the Chair had previously been involved in matters which raised a doubt as to his ability to have decided the Independence Motion impartially. The Appellant wished to have Witness B testify in support of this new motion. The Board did not allow Witness B to be called and denied the Motion to Re-open.
The Board then proceeded with a hearing on the allegations and found three of the four allegations to be established. The Appellant was ordered to resign. The Appellant appealed the Board's findings on the allegations as well as the various rulings made in regards to the four preliminary matters summarized above.
The ERC found that the Appellant's grounds of appeal in relation to the four preliminary matters were determinative in the disposition of the appeal.
First, the Chair's direction to the registrar not to issue a summons in the Chair's name and the registrar's failure to issue the summons contravened the requirements of subsection 6(1) of the Commissioner's Standing Orders (Practice and Procedure). While the Appellant was subsequently afforded an opportunity to make submissions regarding the necessity to the Independence Motion of having the Chair testify, the Chair erred in not recusing himself from the Board as the Appellant had established that the Chair's testimony was necessary. The Appellant was denied the opportunity to fully present his case in accordance with subsection 45.1(8) of the RCMP Act.
Second, Member #2's private email and telephone communications with the AOR, prior to deciding a request for his recusal by the MR, were not appropriate and gave rise to a reasonable apprehension of bias as they displayed a one-sided familiarity with the AOR during the course of the proceedings.
Third, a reasonable apprehension of bias arose as a result of the Chair discussing the independence Motion with Witness A. The Chair could be perceived as having aligned himself with one side in the case by discussing a matter with a witness prior to any oral or written decision being rendered by the Board on the Independence Motion. The question of whether the discussion ultimately influenced the decision was not relevant to assessing whether a reasonable apprehension of bias existed.
Fourth, the Chair's personal interests were engaged and a reasonable apprehension of bias arose when the Board denied the request to have Witness B testify in support of the Motion to Re-open. The Board's final Decision contained comments by the Chair regarding his previous involvement in a complaint made against him by Witness B. These comments demonstrated a level of personal involvement which raised a legitimate concern that the Chair may have been unable to impartially decide the request to have Witness B testify.
The ERC found that the errors made by the Board and its individual members in dealing with these four preliminary matters compromised the fairness of the proceedings. Two potentially material witnesses had not provided evidence and the fairness of the proceedings as a whole was called into question by the reasonable apprehension of bias. A new hearing was required to safeguard the integrity of the proceedings and any decision arising out of those proceedings.
ERC Recommendation dated June 30, 2016
The ERC recommended to the Commissioner of the RCMP that he allow the appeal and order a new hearing due to breaches of the Appellant's right to procedural fairness.
Commissioner of the RCMP Decision dated June 27, 2017
The Commissioner's decision, as summarized by his office, is as follows:
In a decision dated June 27, 2017, the Commissioner agreed with the ERC that the Adjudication Board breached the Appellant's right to a fair hearing due to the existence of a reasonable apprehension of bias. As a result, the decision of the Adjudication Board is invalid.
Generally, a finding of a breach of procedural fairness would result in the matter being returned to a different adjudication board for a fresh hearing. In this case, the Commissioner concluded that the circumstances would inevitably lead to the same result, both on the merits of a motion challenging the institutional independence of RCMP adjudication boards and on the merits of the allegations.
The Commissioner disagreed with the ERC that the Appellant should be afforded a new hearing and exercised his authority under s. 45.16(2)(c) of the RCMP Act. The Commissioner ordered the Appellant to resign, and in default of resigning within 14 days of being served with the decision, to be dismissed.
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