3. The Components of the RCMP Disciplinary Process

Management of the RCMP Disciplinary Process 2009-2010 Annual Report

The RCMP’s disciplinary process regulates the conduct of approximately 19,000 regular members and 3,600 civilian members operating from coast to coast to coast at all levels of policing, from municipal to provincial/territorial to national and international.¹¹ In practice, the management and function of the disciplinary process is shared between various components of the organization. This chapter provides information on the mandate and function of these components.

3.1 Adjudicative Services Branch

The Adjudicative Services Branch was created in March 2008. The Branch is headed by a director general and is composed of five directorates, three of which directly relate to the RCMP’s disciplinary system.¹² The structure of the Branch is shown in Figure 2. The three directorates playing a significant role in formal discipline are the Adjudications Directorate, the Appropriate Officer Representative Directorate and the Member Representative Directorate. They are reviewed in more detail in section 3.2.

In addition to its role as the central disciplinary authority for formal discipline, the Adjudicative Services Branch seeks to engage and support other key components of the disciplinary process, such as the Professional Standards and External Review Directorate, and regional/divisional managers and discipline reviewers. Information about these components of the disciplinary system can be found in sections 3.3 and 3.4.

FIGURE 2: Adjudicative Services Branch

3.2 Branch Directorates

(i) Adjudications Directorate

The Adjudications Directorate administers disciplinary hearings under Part IV of the Act as well as discharge and demotion board hearings for unsuitability under Part V of the Act. The Directorate’s structure is illustrated in Figure 3.

The role of the Adjudications Directorate is vital in maintaining public trust and in the pursuit of the mission and strategic goals of the RCMP. The overarching responsibility of the adjudicators is to ensure the integrity of the process over which they preside by providing fair and equitable treatment for the subject-member.

The Directorate also facilitates pre-hearing conferences, which are presided over by an independent adjudicator who is not a member of the adjudication board of the disciplinary hearing in question.

As part of its efforts towards the fair and equitable treatment of members, the Adjudications Directorate maintains an intranet site accessible to members and other employees¹³ of the RCMP. Along with hearing schedules and statistical data, the site publishes boards’ written decisions. This assists in maintaining transparency, accountability and confidence within the organization. Giving internal stakeholders access to decisions and other information allows, for instance, those facing disciplinary measures to consult previously decided cases. It also serves as a learning tool in dissuading conduct similar to that identified in decisions where Code of Conduct violations were established. Given the increased number of regional and divisional members involved in the administration of the disciplinary process, this database has taken on added significance. Though the site is not accessible to the public, board decisions and hearing transcripts are available to all upon request, subject to any publication ban order.

Besides conducting hearings, the Directorate serves an important administrative function in managing processes that keep the Force’s formal disciplinary system functioning. For example, its registrars are responsible for scheduling hearings, booking hearing and meeting rooms, coordinating board appointments and issuing summonses. Its writer/editor takes care of editing and posting decisions to the intranet site, writes summaries of decisions and manages the database through which the Directorate tracks formal disciplinary statistics.

FIGURE 3: Adjudications Directorate

(ii) Appropriate Officer Representative Directorate

Appropriate Officer Representatives assist and represent Appropriate Officers who are parties to adjudication hearings under Part IV (Discipline) and Part V (Discharge and Demotion) of the Act.

In carrying out their mandates, Appropriate Officer Representatives provide research, analysis and representation services to Appropriate Officers.

Specific activities include:

• providing advice, policy analysis, opinions and interpretations to Appropriate Officers and senior regional and divisional management with respect to RCMP disciplinary and discharge/demotion proceedings, including appeals of such proceedings;
• representing Appropriate Officers in RCMP formal disciplinary hearings and discharge/demotion hearings;
• providing advice and opinions on the Act and Regulations, Commissioner’s Standing Orders, and RCMP policies; and
• preparing appeals from decisions of RCMP disciplinary boards and discharge and demotion boards.

An Appropriate Officer Representative must review evidence and interview witnesses that will be presented to the adjudication board in contested formal disciplinary hearings in order to advance the position of the Appropriate Officer. The Appropriate Officer Representative does not primarily seek to obtain a finding of a contravention of the Code of Conduct (see the Representative’s Code of Ethics -- Appendix D). Rather, the Appropriate Officer Representative fairly presents the Appropriate Officer’s case for the board’s decision.

In proceedings that may be settled to the satisfaction of the Appropriate Officer, the Appropriate Officer Representative and Member Representative will consult to resolve any outstanding issues. Figure 4 illustrates the structure of the Appropriate Officer Representative Directorate.

FIGURE 4: Appropriate Officer Representative Directorate

(iii) Member Representative Directorate

The Member Representative Directorate (illustrated in Figure 5) is a unit within the Adjudicative Services Branch that, through its Member Representatives, provides representation and assistance in accordance with the Act and the Commissioner’s Standing Orders (Representation)¹⁴ to any member who:

• is subject to formal disciplinary action under Part IV of the Act;
• is subject to discharge and demotion proceedings under Part V of the Act; or
• is presenting a grievance relating to their administrative discharge for grounds specified in paragraph 19(a), (f) or (i) of the Royal Canadian Mounted Police Regulations, 1988.

Member Representatives are currently providing representation to an additional group of members who are:

• subject to suspension from duty without pay under section 12.1 of the Act and the Royal Canadian Mounted Police Stoppage of Pay and Allowances Regulations;¹⁵
• subject to the process for temporary loss of pay under the Commissioner’s Standing Orders (Loss of Basic Requirements);¹⁶
• subject to a security clearance revocation (and representation and assistance is approved by the Director);
• subject to a Code of Conduct investigation under section 40 of the Act in relation to a serious allegation that could result in formal discipline (and representation and assistance is approved by the Director);
• appealing informal disciplinary action under section 42 of the Act and representation and assistance is approved by the Director); or
• parties to a hearing before the Commission for Public Complaints Against the RCMP under section 45.45 of the Act.

Consistent with the Representative’s Code of Ethics¹⁷, Member Representatives must maintain the confidentiality of information provided by the members they assist, obtain necessary information from them and from other sources in order to fully assess their situation, provide preliminary and ongoing professional advice and, where applicable, communicate and negotiate with the Appropriate Officer Representatives to resolve issues relating to a given file.

In the case of formal disciplinary hearings, the Member Representative will represent the subject-member before the adjudication board. The Member Representative will complete legal research, review evidence and interview witnesses that will be presented to the adjudication board in order to advance the subject-member’s position. In some instances, an expert must be retained to obtain relevant evidence to be presented to the adjudication board.

During a proceeding, the Member Representative will discourage the subject-member from presenting frivolous or vexatious motions and objections. When the case can be settled to the satisfaction of the subject-member, the Member Representative will encourage the member to do so (see the Representative’s Code of Ethics -- Appendix D).

FIGURE 5: Member Representative Directorate

3.3 Professional Standards and External Review Directorate

The Professional Standards and External Review Directorate is the national policy centre for grievances, discipline, Code of Conduct investigations, public complaints, suspension (with or without pay and allowances), conflict of interest (including outside activities/secondary employment and reporting of assets), and legal assistance at public expense to RCMP employees. In addition, the Directorate advises and assists the Commissioner with respect to public complaints, grievances adjudicated by the Commissioner, and appeals of decisions reached by RCMP adjudication boards in discipline and demotion/discharge matters. The Directorate is not part of the Adjudicative Services Branch and reports to the Director General of Employee and Management Relations; however, both components now fall under the newly created Office of Professional Integrity.

Professional Standards and External Review consists of four units, all of which have roles related to the RCMP’s disciplinary system: the Professional Standards Unit, the Special Advisory Unit, the External Review Unit and the Public Complaints Unit. This structure is shown in Figure 6.

FIGURE 6: Professional Standards and External Review Directorate

Within the Directorate, the Professional Standards Unit oversees policies including grievances and discipline. The Unit is mandated to develop policies and monitor their application and implementation to ensure RCMP members receive fair treatment and maintain the high standards of conduct the public expects.

The Special Advisory Unit is responsible for strategic initiatives related to the Act and regulatory reform. This Unit provides advice on recommendations for stoppage of pay and allowances and informal disciplinary appeals. The member in charge of the Unit acts as the Registrar for appeals of informal discipline. He or she is also the coordinator for RCMP input into any proposed amendments to the Act, regulations under the Act, Commissioner’s Standing Orders and policies.

The External Review Unit provides advice to the Commissioner in relation to his or her adjudicative function in disciplinary appeals, discharge and demotion appeals, Level II grievances (the final level of grievance adjudication in the RCMP), and certain administrative discharges. In addition, the Unit instructs the Department of Justice on the Commissioner’s behalf in judicial reviews of his or her decisions in the Federal Courts.

The Public Complaints Unit is tasked with providing integrated management of all aspects of public complaints pursuant to Part VII of the Act. On a national level, this means it is responsible for public complaints procedures, direction, advice, partnering, quality assurance, and tracking. The Unit liaises extensively with the Commission for Public Complaints Against the RCMP, the independent, arm’s-length review body that oversees investigations of complaints made by the public against the Force. The Unit also acts as a clearing house for complaints, providing information and advice to RCMP members, including the Commissioner, and other employees. It also serves as a contact point for civilian advocacy groups interested in police conduct.

3.4 Regional/Divisional Professional Standards Units

Professional Standards Units are in place across the country and operate at the regional/divisional level as part of the human resource function of the RCMP. These units remain a decentralized component within the disciplinary system. Their structure varies but generally follows the outline given in Figure 7. Since the units report through the regional hierarchy, policy from Professional Standards and External Review is the primary means of ensuring consistency in their operations. Professional Standards Units are integral to RCMP discipline inasmuch as they operate as a support team, providing investigative services for both internal complaints of employee misconduct and public complaints as well as ensuring consistency, quality and timeliness of investigations.

Generally speaking, Professional Standards Units serve two functions. The first is the management of policy for all matters with respect to public complaints, Code of Conduct investigations and harassment investigations for their respective divisions. The second is the provision of investigative services for both internal and public complaints.

Investigations may also be done by a detachment commander, his or her designate, or any other designated person. Capacity, seriousness of the matter, skills, experience and other practical considerations are all factors in the decision as to which component of the organization investigates a Code of Conduct or public complaint matter.

Certain Professional Standards Unit investigations are given priority and assigned to experienced investigators, such as investigations involving suspended members or where the allegations, if substantiated, would likely result in formal discipline. As set out in RCMP discipline policy¹⁸, a Code of Conduct investigation should not take more than six months to complete unless exceptional circumstances exist.

The Professional Standards Units in the divisions play a vital role in providing advice and guidance to all employees, managers and members of the public on matters relating to internal investigations, discipline, harassment, human rights issues and performance management. The availability of such advice in the divisions is important in helping managers address conduct and performance issues, thereby meeting the objective of administering discipline at the most appropriate supervisory level.

(i) Discipline Reviewers

Another important component of the divisional Professional Standards Units within the disciplinary system is the role of the discipline reviewers.¹⁹ Discipline reviewers provide advice on alleged Code of Conduct contraventions including whether they are likely to be proven, possible disciplinary measures and how matters might appropriately be resolved.²⁰

Where decisions are made to recommend formal discipline, discipline reviewers will turn the matter over to Appropriate Officer Representatives but may provide assistance in preparing matters for adjudication boards.

The key role of discipline reviewers is to bring greater consistency to disciplinary matters and, as such, supervisors are encouraged to consult them on the use of informal discipline or the need to recommend formal discipline. RCMP policy stipulates supervisors must consult with discipline reviewers for incidents involving serious statutory offences where formal discipline is not being considered. Supervisors are also encouraged to consult discipline reviewers in cases where “there is no contravention of the Code of Conduct or there is a contravention of the Code of Conduct but it does not warrant disciplinary action.” ²¹

Discipline reviewers may assist in the preparation of allegations of misconduct, and also review, draft and process reports and correspondence on disciplinary matters. In addition, they are responsible for monitoring the quality and timeliness of Code of Conduct investigations.

Within the RCMP, access to disciplinary records is carefully monitored and controlled. Discipline Reviewers play a key role in ensuring access to such information is appropriate.

FIGURE 7: Organization of a Typical Regional/Divisional Professional Standards Unit

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¹¹ Where, for instance the RCMP has been dispatched by the Government of Canada to provide personnel in support of the United Nations or another international entity.

¹² The two not directly related to the disciplinary system are the Level I and Level II Grievance Adjudications Directorates.

¹³ The total establishment of the RCMP is 28,700 employees. In addition to 22,600 regular and civilian members, there are 6,102 Public Servants. These figures are as of September 1, 2009. For more information and the latest numbers, please visit www.rcmp-grc.ca/about-ausujet/organi-eng.htm.

¹⁴ 1997, SOR/97-399.

¹⁵ SOR/84-866, as amended by SOR/88-649, current up to June 28, 2010.

¹⁶ Commissioner’s Standing Orders (Loss of Basic Requirements), 1995, [RI-11], (Not published, signed by the Commissioner on November 28, 1995, as amended on July 21,1997).

¹⁷ See Appendix D.

¹⁸ Royal Canadian Mounted Police Administration Manual at XII.4.4.1.7. [ hereinafter Admin Manual].

¹⁹ Across the RCMP, the terms “discipline reviewer”, “discipline advisor” and “discipline NCO” are used interchangeably. For the sake of consistency, discipline reviewer is used here.

²⁰ Royal Canadian Mounted Police, Pay Council Review of RCMP Internal Discipline System; Final Report and Recommendations (2005) [ hereinafter Pay Council Report].

²¹ Admin Manual, supra note 18 at X11.6.F.2.D.2.