C-041 - Conduct Authority Decision
In 2010, the Appellant reported a weapon that the Force had seized and stored as an exhibit as "destroyed". However, instead of destroying the weapon at work, he took it home to destroy it. He never got around to doing so. Soon thereafter, the weapon was seized from his home. Statutory and Code of Conduct investigations were held.
Following the investigations and a Conduct Meeting, the Respondent found that two allegations against the Appellant were established. Namely, the Appellant was found to have mishandled a Force exhibit and to have made a false report regarding how he handled it, contrary to sections 4.4 and 8.1 of the Code of Conduct, respectively. The Respondent imposed conduct measures that were intended to cover both violations together. The most notable measures included a 20-day forfeiture of leave and an indefinite rank demotion .
The Appellant presented an appeal. He made several arguments concerning the fairness and reasonableness of the Respondent's decision. One argument was that, although he made a mistake and deserved to face consequences, the Respondent did not properly consider the mitigating factors, and this led to the ordering of conduct measures that were simply too severe.
ERC Findings
The ERC found most of the Appellant's positions to be without merit. Generally, the Respondent's decision was reached fairly, the Code of Conduct investigation was not in any way deficient and no relevant evidence or arguments were ignored. The Respondent also used the correct process for determining conduct measures, and relied on proper aggravating factors.
However, the ERC agreed that the Respondent did not adequately consider mitigating factors. The Respondent described as mitigating factors "Medical issues" and "Stressors in personal life". Those descriptions were too vague to have enabled a proper analysis of the severity of the Appellant's misconduct. His challenges were numerous, harsh, long-lasting and collectively extraordinary. This could have helped explain why he did not destroy the exhibit for lengthy periods. They merited more consideration in the Decision than brisk bullet points or bare assurances that mitigating factors had been reviewed. If they were unpacked and carefully examined, both individually and together with the Respondent's findings that the misconduct was isolated and unlikely to reoccur, this could have resulted in the ordering of different conduct measures.
ERC Recommendations
The ERC recommended that this appeal be allowed in part. Specifically, it recommended that the Appellant's indefinite demotion be reduced to a two-year demotion that concluded effective June 25, 2020.
Commissioner of the RCMP Decision dated January 5, 2020
The Commissioner's decision, as summarized by her office, is as follows:
On November 23, 2008, a weapon was seized by a member of the [X] Detachment where the Appellant was posted. On September 6, 2010, the Appellant recorded in PROS that this exhibit had been destroyed, notwithstanding that no authority existed to do so, and that the destruction had allegedly been witnessed by Cst. X. This proved to be untrue on both counts as the weapon remained stored at the Appellant's residence, in his garage. The Appellant subsequently faced a Code of Conduct investigation and, in addition, the Appellant faced a statutory investigation.
It was alleged that the Appellant had contravened sections 7.1, 4.4 and 8.1 of the Code of Conduct, which resulted in three allegations.
The Respondent dismissed Allegation 1, but found Allegations 2 and 3 established. As a result, he imposed the following measures:
- Forfeiture of 160 hours (20 days) Leave;
- An indefinite demotion (at the highest pay increment of that level) beginning at the date of service of this document; and
- Ineligibility for promotion for a period of two years from the date of service of this document.
The Appellant presented this appeal, contending the Respondent's decision was reached in a manner that contravened the applicable principles of procedural fairness and was clearly unreasonable.
The Appeal was referred to ERC who believed the appeal should be allowed, in part. The ERC found that "the Respondent's decision on the allegations was reached fairly" and that "the Respondent's decision on the allegations is reasonable". However, the ERC Chairperson agreed that the Respondent "omitted to properly consider all the mitigating factors", particularly the "medical and personal challenges that placed [the Appellant's] actions in context", and recommended "the Appellant's conduct measures should be reduced because they are too severe".
The Conduct Appeal Adjudicator did not adopt the recommendations put forward by the ERC Chairperson, having found the record lacked documentary evidence to support the Appellant's contention that the Respondent's conduct measures were clearly unreasonable. Although the Appellant listed personal and professional events and occurrences that he wanted considered as mitigating circumstances, he provided no supporting documentary evidence. The record contained his Employee Profile as well as several Performance Assessments, including evidence of his 2014 promotion, that contradicted his position. The Appeal Adjudicator was given no reason to interfere. This appeal is dismissed on all counts.
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