C-072 - Conduct Authority Decision

The Respondent found that the Appellant had engaged in misuse of Force IT equipment contrary to section 4.6 of the Code of Conduct and had engaged in unauthorized disclosure of information, contrary to section 9.1 of the Code of Conduct. The Respondent imposed a forfeiture of 15 days of annual leave for Allegation 1 and a financial penalty of 15 days’ pay for Allegation 2. The Appellant appealed the Decision and the conduct measures imposed by the Respondent.

The Appellant alleges an apprehension of bias by the Respondent. The Appellant further alleges that the RCMP breached section 8 of the Canadian Charter of Right and Freedoms (Charter) when it retained evidence relevant to the Code of Conduct investigation without a warrant. The Appellant argues that the Respondent breached his procedural fairness rights by failing to provide further disclosure related to the criminal proceedings. Finally, the Appellant asserts that the findings that the allegations are established are clearly unreasonable, as are the conduct measures. 

The ERC found that the Appellant’s arguments for additional disclosure were based on speculation, and that the Appellant has not demonstrated how additional disclosure was relevant to the conduct proceedings. The ERC found that the Appellant failed to provide sufficient evidence to support his argument regarding the reasonable apprehension of bias, and that the Appellant had failed to raise some of his concerns with bias at the earliest opportunity.

The ERC found that the Respondent did not provide sufficient reasons relating to the Appellant’s Charter violation allegation. After considering the circumstances surrounding the search and seizure of the evidence, the ERC concluded that the Appellant’s Charter rights were not breached. The ERC further found that the Respondent’s decision was not clearly unreasonable on the establishment of the allegations or conduct measures.  

The ERC recommended that the Commissioner allow the appeal for insufficient reasons for the Charter allegation and conduct a new assessment of this issue.

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

The Appellant is a Civilian Member employed as an Occupational Safety Officer in “X” Division. He was the subject of two disciplinary allegations. One was for failing to use RCMP-issued IT equipment and property only for authorized purposes and activities (section 4.6 of the RCMP Code of Conduct). The other one was for failing to access, use and disclose information obtained in his capacity as a member only in the proper course of his duties (section 9.1 of the RCMP Code of Conduct). These allegations came to light after the RCMP executed a search warrant on the Appellant’s home, seeking the possible presence of [X] on the Appellant’s digital devices. While no [X] was found, the seized exhibits contained both [Y] and Protected A RCMP material. The equipment containing RCMP material was left in locations easily accessible by guests and other members of the household, including the Appellant’s son. The Appellant later revealed that he had hired his son to assist him with renaming RCMP digital files to his unit’s naming convention requirements. The Appellant also acknowledged that he purchased a number of IT devices, which he used for both personal and work-related business.

At the conclusion of an investigation, and following a conduct meeting, the allegations were deemed established by the Respondent. The Respondent imposed a forfeiture of 15 days (120 hours) to be taken as annual leave on the first allegation and the forfeiture of 15 days (120 hours) of pay on the second allegation.

The Appellant contends that the Respondent’s decision was reached in contravention of the principles of procedural fairness, is based on error of law, and, is clearly unreasonable because the Respondent incorrectly applied the statutory time limitation to impose conduct measures; breached his rights under the Canadian Charter of Rights and Freedoms (Charter); provided incomplete disclosure; and, denied access to adequate representation.

The ERC recommended that the appeal be allowed, in part based, on the fact that the Respondent’s Charter analysis was clearly unreasonable. The ERC recommended that the allegations be deemed established upon redetermination and that the same conduct measures be imposed.

The adjudicator allowed the appeal on the basis that the Respondent’s Charter analysis lacked any tenable line of analysis, thereby rendering the decision clearly unreasonable. The adjudicator then rendered the decision that the Respondent should have made, found the allegations established, and imposed as conduct measures the same forfeiture of 15 days of leave for Allegation 1 and 15 days of pay for Allegation 2.