Appendix C

Management of the RCMP Disciplinary Process 2009-2010 Annual Report

The RCMP Disciplinary Process

This Appendix provides an overview of the source and organization of the RCMP’s disciplinary process. The best way to understand this process is by examining the interaction between the regime prescribed by the Act, Regulations, Commissioner’s Standing Orders, internal policies and case law.

1.1 Jurisdiction

Every member alleged to have contravened the Code of Conduct may be disciplined under the Act regardless of where the alleged contravention took place or where the member is deployed currently. Additionally, the member may be dealt with whether charged with an offence relating to the alleged contravention or tried, acquitted, discharged, convicted or sentenced by a court in respect of such an offence. ¹

Unlike matters intended to promote public order and welfare such as cases within the criminal justice system, disciplinary matters are concerned with regulatory and/or corrective action to maintain professional standards by members of the RCMP. As such, alleged contraventions under the Code of Conduct may only be dealt with while one is a member of the RCMP. There is a loss of jurisdiction to deal with a person who is no longer employed under the Act.²

1.2 Investigations into Alleged Contraventions of the Code of Conduct

As illustrated in Figure 17, the disciplinary process begins with the supervisor’s response to an alleged contravention of the Code of Conduct . Upon becoming aware of the alleged conduct, the supervisor will make or initiate whatever investigation he or she deems necessary to determine whether a contravention has occurred.³

FIGURE 17: Disciplinary Process as per Part IV of the Royal Canadian Mounted Police Act

1.3 Informal Disciplinary Action

Once it is established to the satisfaction of the supervisor that a violation of the Code of Conduct has occurred, the supervisor can initiate the informal disciplinary process. This can only be done if he or she is of the opinion that, having regard to the gravity of the contravention and to the surrounding circumstances, the action is sufficient. ⁴

Informal disciplinary actions specify a corrective or remedial approach to a member’s conduct. The particular actions that may be taken are:

• counselling;
• a recommendation for special training;
• a recommendation for professional counselling;
• a recommendation for a transfer;
• a direction to work under close supervision;
• subject to such conditions as the Commissioner may prescribe by rule⁵, a forfeiture of regular time off for a period not exceeding one day; and/or
• a reprimand (it is to be noted, only an officer in command or an appropriate officer may impose a reprimand).⁶

It is RCMP policy that informal disciplinary action under subsection 41(1) of the Act must be taken against members within a year from the time the alleged contravention and identity of the member became known to his or her supervisor. ⁷

1.4 Formal Disciplinary Action

(i) Initiating a Hearing

If a supervisor encounters an apparent Code of Conduct violation and believes informal disciplinary action would be insufficient, the matter must be referred to the Appropriate Officer.⁸ If the Appropriate Officer likewise decides informal action would not suffice, he or she then initiates a hearing into the alleged contravention.⁹ Only an Appropriate Officer can initiate formal disciplinary action against a member. Hearings cannot be initiated where informal discipline by way of a reprimand has already been imposed. ¹⁰

By statute, formal disciplinary proceedings must be initiated before the expiration of one year from the time the contravention and the identity of the member became known to the Appropriate Officer.¹¹

The Federal Court of Appeal clarified the law with respect to this limitation period in its judgment in Thériault v. Royal Canadian Mounted Police.¹² It determined the purpose of the limitation period is to provide for a starting point reconciling protection of the public and credibility of the institution with fair treatment for members and others involved. The Appropriate Officer acquires knowledge of a contravention and the identity of the member when he or she has enough credible and persuasive information to reasonably believe the contravention was committed by the member to whom it is attributed.¹³ He or she then has one year to initiate the disciplinary hearing. Once the process has begun, further limitation periods are not imposed by statute or policy.

(ii) Adjudication Boards

When the Appropriate Officer initiates a hearing, he or she notifies the officer designated by the Commissioner. On being notified, the designated officer appoints three officers as members of the adjudication board to conduct the hearing. As this is an internal system, and members of the board are themselves members, there are guidelines in the Act and policy to ensure the independence of the board. The board officers must have the appropriate adjudicative training and not be in a real or perceived conflict of interest with respect to the subject member. At least one must be a graduate of a recognized law school. ¹⁴ The officers must take the Adjudicator’s Oath of Office (see Appendix F). Additionally, they must comply with the Adjudicator’s Code of Ethics, namely they are to (a) render justice within the framework of the law; (b) perform the duties of their office diligently and with integrity, dignity and honour; (c) avoid any conflict of interest and refrain from placing themselves in a position where they cannot faithfully carry out their functions; and (d) be, and appear, impartial and objective.¹⁵

Once the appointments have been made, the Appropriate Officer must serve a notice of hearing on the member whose conduct is in question (the “subject-member”). The notice must identify and explain the particulars of each alleged contravention. It must also state the name of each member of the adjudication board and inform the subject-member of his or her right to object to the appointment of any of these members¹⁶ as well as the sanction being sought by the Appropriate Officer.

(iii) Hearings

The disciplinary hearing is a quasi-judicial proceeding. As a result of the evolution of administrative law, RCMP adjudication boards apply the rules and function in accordance with the principles of natural justice and procedural fairness. Among other things, this means:

1. the adjudication board must meet established criteria for institutional independence;
2. the individual who will be affected by the decision is provided with sufficient disclosure to allow him or her the opportunity to know the case that must be met;
3. the parties must be provided with a full opportunity to be heard;
4. the decision must be made free from a reasonable apprehension of bias by an impartial decision-maker; and
5. a written explanation for the decision must be provided.¹⁷

Disciplinary hearings are audio recorded and adjudication boards must provide written decisions that include statements of findings of fact material to the decision, reasons and statements of sanctions imposed (where allegations have been established)¹⁸. A decision of a majority of the board constitutes the decision of the board and the final decision may include a dissenting opinion.¹⁹

The parties to the proceeding are the Appropriate Officer who initiated the hearing and the member whose conduct is the subject of the hearing. However, an intervenor who claims to have a substantial and direct interest in the subject-matter of a hearing may also be granted standing before an adjudication board.²⁰ Testimony is under oath or affirmation.²¹ The parties may also present evidence in an agreed statement of facts²² and, where the contravention is established, jointly propose a sanction.

The Appropriate Officer is represented by an Appropriate Officer Representative. The member facing the disciplinary action may choose to self-represent, be represented by any other member, be represented by outside legal counsel or retain the services of a Member Representative. The Act does not stipulate Appropriate Officer Representatives and Member Representatives must be lawyers or hold a law degree, however, in practice this is the case by fact of their work description. The responsibilities of all members representing or assisting other members in disciplinary matters are similar to those of lawyers before courts and they are therefore expected to conduct themselves to the same standards.²³ All must comply with the Representative’s Code of Ethics (see Appendix D), which includes such requirements as holding in strict confidence all communications relating to the representation of the client received from that client, and serving the client in a conscientious, diligent and efficient manner.²⁴

It is the responsibility of the adjudication board to set the place, date and time for the hearing²⁵ in consultation with the parties. Generally, hearings are held in Federal Court facilities across the country. If the board is unable to hear the matter expeditiously, its chairperson may ask the designated officer to appoint another board.²⁶

While the Act states adjudication hearings shall be held in private²⁷, since 1997 they have in practice been open to the public unless the board makes an order for a closed hearing on a motion brought by a party. This is the result of the judgment in Southam Inc. v. Canada (Attorney General), where Mr. Justice Douglas Rutherford stated²⁸:

Because of the public nature of a peace officer's duties and the broad powers given by law to a peace officer in the execution of those duties, and because formal adjudication board proceedings can affect an R.C.M.P. member’s rights so significantly, the public has a very strong interest in such a hearing.

Mr. Justice Rutherford declared subsection 45.1(14) of the Act to be invalid and of no force of law or effect on the basis it infringed paragraph 2b) of the Canadian Charter of Rights and Freedoms. At the same time, he left open the possibility that, when no specific power to proceed in camera is provided in a statute, a tribunal may nonetheless decide to do so in appropriate circumstances under its power to control its own processes. Examples would be where the disclosure of the information would be expected to be injurious to the defence of Canada or to law enforcement, or where the privacy interest of an individual’s information respecting his or her financial or personal affairs outweighs the public’s interest in the information.²⁹

(iv) Sanctions

Where an adjudication board decides on a balance of probabilities an alleged contravention of the Code of Conduct is established, it will then hear arguments and impose one or more of the following sanctions:

• dismissal or, in the case of an officer³⁰, a recommendation for dismissal;
• direction to resign and, in default of resigning within fourteen days after being so directed, dismissal from the force (or, in the case of an officer, recommendation for dismissal);
• demotion or, in the case of an officer, a recommendation for demotion; or
• a forfeiture of pay for not more than 10 work days.

The board may also impose one or more of the informal disciplinary actions or recommendations mentioned in Section 1.3 in substitution for or in addition to the sanctions listed above.

1.5 Appeals

(i) Informal Discipline

The Act allows the RCMP Commissioner to regulate the practice and procedure for appeals of informal disciplinary action.³¹ Appeals are heard internally by a senior officer designated by the Commissioner. This officer’s decision is rendered in writing and includes his or her reasons. ³²

The officer may dismiss the appeal and confirm the informal disciplinary action being appealed, or allow it and either rescind or vary the action.³³

In the case of informal disciplinary actions, only a direction to work under close supervision, a forfeiture of regular time off of a period not exceeding one work day and a reprimand (under paragraphs 41(1)(e) to (f) of the Act) may be the subject of an appeal.³⁴

(ii) Formal Discipline

Both parties to the disciplinary hearing (the member and the Appropriate Officer) can appeal findings by the board as to whether a contravention of the Code of Conduct is established. However, only the member facing the discipline may appeal the sanction(s) imposed³⁵. The Appropriate Officer can only appeal a sanction on the ground that it is not provided for by the Act.

Appeals of formal discipline go to the Commissioner. However before considering them, he or she must refer them to the RCMP External Review Committee unless the member facing discipline requests otherwise. (In the event of such a request, the Commissioner may still decide to refer the case if he or she considers it appropriate.)³⁶ The External Review Committee is an independent, arm’s-length organization established under the Act. The Commissioner must consider its findings and recommendations but is not bound by them.³⁷

On an appeal against an adjudication board’s finding, the Commissioner may dispose of the appeal by:

• dismissing it and confirming the adjudication board’s decision;
• allowing it and ordering a new hearing into the allegation; or
• where the appeal is taken by the member who was found to have contravened the Code of Conduct, allowing it and substituting a different finding.³⁸

On an appeal against a sanction imposed by the adjudication board, the Commissioner can either:

• dismiss the appeal and confirm the decision being appealed; or
• allow the appeal and either vary or rescind the sanction or action.³⁹

1.6 Suspension from Duty and Stoppage of Pay and Allowances

Suspension is not itself a disciplinary sanction. However, it may be imposed to protect the RCMP’s integrity and processes pending the outcome of a disciplinary matter. Suspensions may be with or without pay and allowances.⁴⁰

(i) Suspension from Duty

Every member who has contravened or is suspected of contravening the Code of Conduct or a federal or provincial law may be suspended from duty.⁴¹

Suspension is only ordered where not suspending the member would seriously jeopardize the integrity of the RCMP.⁴² The decision to suspend a member takes into account public expectations and may be based on:

• the member having been imprisoned for any reason;
• the alleged misconduct being so reprehensible as to require removal from duty;
• reasonable grounds to suspect the member’s involvement in the commission of an offence against an act of Parliament or a breach of the Code of Conduct, so serious that, if substantiated, it would significantly affect the proper performance of his or her duties under the Act; or
• pending the execution of the decision by a board to dismiss the member (or a recommendation for dismissal if the member is an officer) or to order the member to resign.⁴³

Parliament or a breach of the Code of Conduct , so serious that, if substantiated, it would significantly affect the proper performance of his or her duties under the Act; or

The decision to suspend a member rests with the Commanding Officer.

(ii) Stoppage of Pay and Allowances

Subsection 22(3) of the Act provides that the Treasury Board may make regulations respecting the stoppage of pay and allowances of members suspended from duty. The Treasury Board adopted the Royal Canadian Mounted Police Stoppage of Pay and Allowances Regulations,⁴⁴ which stipulate in section 2 the Commissioner, a Deputy Commissioner or an Assistant Commissioner may order the stoppage of pay and allowances of a member suspended from duty. These regulations were declared valid by the Federal Court of Appeal in Kindratsky v. Canada.⁴⁵

On June 14, 2006, the Commissioner of the RCMP designated any Assistant Commissioner at National Headquarters to be the officer responsible for ordering the stoppage of pay and allowances of a member suspended from duty.

Considerations in deciding whether to stop a member’s pay and allowances are found in the RCMP’s Administration Manual.⁴⁶ Stoppage of pay and allowances will only be invoked in extreme circumstances when it would be inappropriate to pay a member. Each case is dealt with on its own merits and will be considered when the member:

• is in jail awaiting trial;
• is clearly involved in the commission of an offence that contravenes an act of Parliament or the Code of Conduct, and is so outrageous as to significantly affect the proper performance of his or her duties under the Act; or
• has been absent without authority from his/her post for seven entire days or more in contravention of section 49 of the Code of Conduct; or
• has failed to report for duty on a specified date to a post to which he or she has been transferred by order in contravention of section 40 of the Code of Conduct.⁴⁷

Stoppage of pay and allowances will not apply to summary convictions, provincial statutes or minor Criminal Code offences.⁴⁸

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¹Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, s. 39. [hereinafter the Act].

²Royal Canadian Mounted Police Administration Manual at XII.6.E.5.b [hereinafter Admin Manual].

³Supra note 1, s. 40(1): Where it appears to an officer or to a member in command of a detachment that a member under the command of the officer or member has contravened the Code of Conduct, the officer or member shall make or cause to be made such investigation as the officer or member considers necessary to enable the officer or member to determine whether that member has contravened or is contravening the Code of Conduct.

⁴Supra note 1, ss. 41(8), 41(2).

⁵Section 4 of the Commissioner’s Standing Orders (Disciplinary Action), SOR/88-362, provides that forfeiture of regular time off shall be used in circumstances where it is reasonable that the member compensate time (a) that the member has spent, while on duty, on activities not associated with the member’s duties; or (b) that the member has not spent when the member was required to be on duty.

⁶Supra note 1, s. 41(1).

⁷Admin Manual, supra note 2 at XII.6.D.1.

⁸Royal Canadian Mounted Police, Pay Council Review of RCMP Internal Discipline System; Final Report and Recommendations (2005) [hereinafter Pay Council Report].

⁹Supra note 1, s. 43(1).

¹⁰Ibid, s. 43(7).

¹¹Ibid, s. 43(8).

¹²See Thériault v. Canada (Royal Canadian Mounted Police), 2006 FCA 61 at para. 47: “[T]he appropriate officer acquires knowledge of a contravention and the identity of its perpetrator when he or she has sufficient credible and persuasive information about the components of the alleged contravention and the identity of its perpetrator to reasonably believe that the contravention was committed and that the person to whom it is attributed was its perpetrator”.

¹³Ibid.

¹⁴Supra note 1, s. 43(2) to 43(3).

¹⁵Admin Manual, supra note 2, at AM XII.11.E.6.

¹⁶Supra note 1, s. 43(5).

¹⁷See Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817; Kinsey v. Canada (Attorney General), 2007 FC 543; Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781; May v. Ferndale Institution, [2005] 3 S.C.R. 809. A tribunal has a duty to provide clearly articulated reasons for its decisions: R. v. Sheppard, [2002] 1 S.C.R. 869. A recent case applying the Supreme Court’s approach in Sheppard in the context of administrative rather than criminal law is Lee v. College of Physicians and Surgeons (2003), 66 O.R. (3d) 593 (Div. Ct.).

¹⁸Supra note 1, ss. 45.1(15), 45.12(2).

¹⁹Sections 24 and 25 of the Commissioner’s Standing Orders (Practice and Procedure)(SOR/88-367).

²⁰Ibid., and supra note 1, s. 45.1(1) and s. 11.

²¹Supra note 19, s.18.

²²Ibid., s.10.

²³Admin Manual, supra note 2 at XII.9.E.2.

²⁴Ibid., at App. XII-9-1.1.

²⁵Supra note 1, s. 45.1(2).

²⁶Admin Manual, supra note 2 at AM XII.11.F.3.

²⁷Supra note 1, s. 45.1(14)

²⁸Southam Inc. v. Canada (Attorney General), (1997) 36 O.R. 721 at para. 20.

²⁹Ibid., at paras. 31, 49.

³⁰Since RCMP commissioned officers are appointed by Order in Council, a board can only recommend a dismissal. It does not have the authority to rescind an Order in Council appointment.

³¹Supra note 2, s. 42(8)(c).

³²Section 8 of the Commissioner’s Standing Orders (Disciplinary Action),(SOR/88-3620).

³³Supra note 1, s. 42(2).

³⁴Ibid., s. 41(9).

³⁵Ibid., ss. 45.14(1), 45.14(3).

³⁶Ibid., ss. 45.15(1), 45.15(3).

³⁷Ibid., s. 45.16(1).

³⁸Ibid., s. 45.16(2).

³⁹Ibid., s. 45.16(3).

⁴⁰Admin Manual, supra note 2 at XII.5.D.1.

⁴¹Supra note 1, s. 12.1.

⁴²Admin Manual, supra note 2 at XII.5.D.a.

⁴³Admin Manual, supra note 2 at XII.5.D.3.

⁴⁴SOR/84-866, as amended by SOR/88-649.

⁴⁵Kindratsky v. Canada (Attorney General), 2007 FCA 332.

⁴⁶Admin Manual, supra note 2 at XII.5.D.8 - XII.5.D.21.

⁴⁷Ibid., XII.5.D.9, XII.5.D.9.a.

⁴⁸Ibid., XII.5.D.10.