4. Disciplinary System in Practice, 2009-2010

Management of the RCMP Disciplinary Process 2009-2010 Annual Report

During the 2009-2010 reporting period, management of the formal disciplinary process continued to focus on improving the efficiency, effectiveness and consistency of the process within the parameters of existing legislation. In 2008-2009, a significant transformation of the disciplinary structure was brought about following the creation of the Adjudicative Services Branch by giving it a mandate to facilitate centralized program management. This new structure provided a better means to improve a disciplinary system that was seen to be overly legalistic, adversarial and slow. During the 2009-2010 reporting period, improvements to the system continued and the impact of the structural change became clearer. This Chapter provides an update on the various Branch and Directorate initiatives that began in 2008-2009.

4.1 Adjudicative Services Branch

The Adjudicative Services Branch continued its efforts throughout 2009-2010 to improve the formal disciplinary process. Since its creation, the Branch has had increased opportunities to centrally monitor the progress of cases, remove barriers and provide direction regarding proceeding in a timely fashion. As noted in Figure 8, there were 43 formal discipline cases concluded by the end of this reporting period. The number of cases moving through the formal discipline system at any given time fluctuates. This can be attributed to the fact that as cases are adjudicated, other cases are regularly entering the system. As illustrated in Figure 12, 89 new matters were commenced during the past reporting period, in comparison with 69 cases in 2008-2009; this equates to a 20 percent increase of new cases entering the system. In spite of this, with more effective practices, the Branch was able to improve the timeliness of its case management by 10 percent.²²

Some of the key initiatives undertaken by the Branch in 2009-2010, as outlined in the following sections, include the Case Management System Pilot, early resolution initiatives, development of an Independence Framework, development of policy, maintenance and monitoring of records as well as training.

(i) Case Management System Pilot

In the 2008-2009 reporting year, the Branch developed a policy to support a potential Case Management System which would form part of the enhanced centralized coordination of formal discipline cases. During the 2009-2010 reporting year, an extensive consultation process was undertaken where Branch stakeholders and subject-matter experts were consulted in the development of a model Case Management System for formal discipline. The stated objectives of the Case Management System included:

• increasing the accountability of participants in the formal disciplinary process by tracking and overseeing case-related procedures;
• enhancing the transparency of the disciplinary process in light of the RCMP’s goal to uphold public trust;
• promoting the resolution of formal disciplinary matters as quickly as circumstances permit; and
• incorporating in this process the RCMP’s overarching obligations and commitments under the Royal Canadian Mounted Police Act by applying the rules of natural justice and procedural fairness in the adjudicative process.

The Branch finalized the development of the model Case Management System at the end of this reporting period, implemented it on April 1, 2010 as a one-year pilot project and appointed a Case Manager. A copy of the Case Management framework is attached at Appendix E. While the Member Representatives and Appropriate Officer Representatives remain responsible for providing confidential advice to their clients, the role of the Case Manager is to identify opportunities for a timely resolution of discipline matters.

While complete details of the Case Management System pilot are outlined in Appendix E, some of its main features include the following:

• Parties to a hearing must file regular status reports with the Case Manager outlining pre-hearing activities. This will allow the Manager to monitor the progress of cases, identify any departure from the normal course of a matter and promote the resolution of issues in a timely fashion;
• In appropriate cases, the Case Manager will facilitate settlement discussions between the parties and encourage them to participate in pre-hearing conferences if this approach is conducive to greater efficiency; and
• The parties are required to file a Certificate of Readiness six weeks before the start of a scheduled hearing. This will also allow the adjudication board to identify problems or issues that can be resolved before the hearing begins, further reducing delays and the need for adjournments.

The Branch is finalizing an assessment tool to measure the impact of the pilot project.

(ii) Early Resolution

The early resolution of formal discipline cases was implemented as a project in 2005 in accordance with a memorandum issued by the Chief Human Resources Officer. Since that time, the early resolution of cases has become an integral part of the formal disciplinary process and has continued to evolve. Efforts to formalize the Early Resolution Process into policy have been underway for a few years. This initiative has been overtaken by the Case Management System. As part of the implementation of the Case Management System Pilot, the early resolution principles have been formally incorporated into the case management of discipline cases. All processes will be assessed at the conclusion of the Pilot. Further policy refinements will be required so that the early resolution of cases and the Case Management System appropriately align, while maintaining the same underlying philosophy -- flexibility and timely resolution of cases with a modern, problem-solving approach rather than an adversarial one.

(iii) Independence Framework

Following the establishment of the Adjudicative Services Branch, a need to formalize the framework that would clearly define the operational autonomy, expectations and reporting relationships of the Branch directorates was identified. This reporting period saw ongoing work in developing this framework (formerly entitled “Accountability Framework”), which included research, drafting and consultation with stakeholders and subject matter experts within the organization.

The recent implementation of the Case Management System Pilot and the appointment of the Case Manager as the central actor in the system will support further work in the next year to finalize the Independence Framework.

The Independence Framework is premised on the recognition that directorates within the Branch must operate with the required autonomy and perform various quasi-judicial and distinct functions. The framework will recognize that the Director General of the Branch is accountable for the effective working of the formal disciplinary system and the general supervision of the management of the directorates. The appropriate role and reporting relationship for a Case Manager will also be addressed to ensure that a balance is maintained between protecting the role of a representative and refining procedures to maximize program effectiveness.

(iv) Policy Development

Throughout the 2009-2010 reporting period, the Adjudicative Services Branch continued to provide policy support to other components of the discipline process.

The Branch is contributing expertise to ongoing research and analysis for proposed legislative reforms. On June 17, 2010, Bill C-43, the Royal Canadian Mounted Police Labour Relations Modernization Act was tabled in the House of Commons. The proposed legislation confers to the Commissioner authority in human resource management similar to that of Deputy Heads in the federal Public Service and to those who head large police services in Canada. This includes the authority to appoint, promote, discipline, demote or terminate the employment of all members, including commissioned officers. Furthermore, it gives the Commissioner the authority to implement a restructured discipline system. Consistent with discipline systems found throughout other Canadian police services and the broader Public Service, the new system will enable the RCMP to address and resolve conduct issues transparently, consistently and promptly should the Bill pass into legislation. It would give RCMP members the right to refer certain decisions or actions of management to the Public Service Labour Relations Board, which is an impartial, external decision-making body. The proposed legislation would enable the Public Service Labour Relations Board to act as an independent, external third party that would make final and binding decisions in relation to discipline issues and some grievances raised by RCMP members. To fulfill its role, the Public Service Labour Relations Board would take into account the unique responsibilities of the RCMP as a law enforcement agency as it relates to the protection of Canadians and national security.

The Adjudicative Services Branch will work in collaboration with the RCMP Labour Relations Initiative group to develop the processes necessary for future legislative implementation.

(v) Maintenance and Monitoring of Records

As part of the centralization of the discipline process and in accordance with the Ministerial Direction, the Adjudicative Services Branch is enhancing the management of formal discipline records. The collection and use of formal discipline statistics is being regulated and improved as part of the implementation of the Case Management System Pilot. During the Pilot, information will be gathered and analyzed to ascertain how data can be defined and captured more precisely. Upon conclusion of the project, improvements will be made as required.

It was identified in the last reporting period that current practices with respect to the collection and analysis of data pertaining to informal discipline statistics need to be reviewed. The Adjudicative Services Branch is solely responsible for formal discipline statistics; however, in its role as the central discipline authority it is collaborating with the Professional Standards and External Review Directorate to standardize the maintenance of both formal and informal discipline statistics.

(vi) Training

The Branch-wide focus on training continued throughout 2009-2010. Full-time Adjudicative Services Branch adjudicators and representatives were engaged in a variety of ongoing learning initiatives. As in previous years, employees completed and updated their individual learning plans. Efforts were made to ensure that the members of the Branch met their professional training requirements. Professional learning opportunities included the annual Federation of Law Societies’ National Criminal Law Program Conference which emphasized evidentiary law; training sponsored by the Quebec Bar on discipline related issues; the annual Council of Canadian Administrative Tribunals Conference, which focused on administrative law; and the Canadian Institute’s Conference on the Law of Policing.

In addition to formal discipline training, the Adjudicative Services Branch continued to focus on in-house training. One of these initiatives is the drafting of best practices guidelines, which will take the form of learning modules tailored to the specific nature of the RCMP’s disciplinary system. These modules will serve as training tools to assist adjudicators, Member Representatives and Appropriate Officer Representatives. The development of the modules is underway and will continue during the next reporting period.

Members of the Adjudicative Services Branch were also actively engaged in providing discipline training to employees at all levels, including instruction on the Officer Orientation Development Course and the Manager Development Program.

The Adjudicative Services Branch held one “Discipline, Demotion and Discharge Adjudicators” course, which trained 30 officers. This course provides officers with the requisite knowledge and skills to effectively participate in the adjudication/discharge and demotion process. The Directorate maintains a list of trained officers to assign to adjudication boards, when required. In addition, officers are provided training as part of this course with respect to their duties as line officers under the Royal Canadian Mounted Police Act. Such instruction enables line officers to return to their home units with a better understanding of the technical and legal aspects of their responsibilities as well as the philosophy underlying the discipline regime of the RCMP.

This past year saw additional training being provided by the Adjudicative Services Branch staff to Operational Communications Centre personnel and Staff Relations Representatives. In addition, the Branch added a new element to its training. Information sessions on discipline and ethics were facilitated by the Branch to groups of Canadian police officers bound for a variety of United Nations and European Union missions abroad. Lastly, the Adjudicative Services Branch provided a speaker at the Public Service Adjudication Training course offered by the Public Service Labour Relations Board.

As mentioned in last year's report, the appointment of adjudication boards is governed by statute.²³ The panel of adjudicators must consist of commissioned officers and "at least one of the officers appointed as a member of an adjudication board shall be a graduate of a school of law recognized by the law society of any province."²⁴ Moreover, current practice requires that the full-time Member Representatives and Appropriate Officer Representatives working within the Adjudicative Services Branch hold law degrees. As such, the RCMP must retain legally trained employees. At the present time, a framework for subsidized education is under development by the Learning and Development Branch. The Adjudicative Services Branch continued to support this endeavour during the last reporting period. When implemented, this program will provide important opportunities for the RCMP to augment its pool of members with legal training.

4.2 Branch Directorates

(i) Adjudications Directorate

Throughout this reporting period, the Adjudications Directorate continued to concentrate its efforts on the timely movement of cases through the system.

Figures 8-12 provide an overview of the Directorate’s activities during the 2009-2010 reporting period.

As illustrated in Figure 8, the caseload activity in 2009-2010 totalled 72 cases. Of those, 43 were adjudicated: 11 were conducted by way of a regular board and 32 were finalized using the Early Resolution Process. Figure 9 illustrates the 2009-2010 caseload activity by month.

FIGURE 8: Discipline Caseload Activity, FY 2009-2010

Cases Adjudicated	Allegations Withdrawn	Members Resigned	Total
43 (11 Regular Board, 32 Early Resolution Process)	16	13	72

 

FIGURE 9: Monthly Discipline Caseload Activity, FY 2009-2010

Month	Regular Board	Early Resolution Process	Allegations withdrawn	Member Resigned	Total
April 2009	0	5	0	1	6
May 2009	0	1	2	0	3
June 2009	2	2	2	1	7
July 2009	0	1	0	1	2
August 2009	1	3	2	2	8
September 2009	1	0	1	2	4
October 2009	1	3	2	0	6
November 2009	1	2	0	3	6
December 2009	1	2	3	0	6
January 2010	1	3	1	1	6
February 2009	2	3	1	2	8
March 2009	1	7	2	0	10
Total	11	32	16	13	72

FIGURE 10: Formal Discipline for Code of Conduct Violations by Division, FY 2009-2010

Figure 10a - Pay forfeitures (1 to 10 days' pay)

Division	1 Day	2 Days	3 Days	4 Days	5 Days	6 Days	7 Days	8 Days	9 Days	10 Days	Total
A							1				1
B										1	1
C	1		1							2	4
D
Depot				1							1
E	1								1	2	4
F				1	2			1		4	8
G							1				1
H		1								2	3
HQ					1		1			2	4
J									1	1	2
K	1	1	1	1	1						5
L
M
O		1									1
V
Total	3	3	2	3	4	0	3	1	2	14	35

 

Figure 10b - Discipline Cases by Division, FY 2009-2010

Division	Dismissals	Order to resign	Total Pay Forfeitures (1 to 10 days' pay) *	Allegations not established	Reprimand only	Total Adjudicated Cases
A	1		1			2
B			1			1
C			4			4
D					1	1
Depot			1			1
E	1		4			5
F		1	8	1		10
G			1			1
H			3			3
HQ			4			4
J			2			2
K		1	5	2		8
L						0
M						1
O			1			0
V						0
Total	2	2	35	3	1	2

* see Figure 10a - Pay forfeitures (1 to 10 days' pay)

(ii) Appropriate Officer Representative Directorate

The 2009-2010 reporting period was the first full year of operation for the new Appropriate Officer Representative Directorate. This year, the Directorate began the centralization of Appropriate Officer Representative management in Ottawa, thus promoting increased consistency, transparency and accountability in the discipline process. While the clients of the Appropriate Officer Representative remain the Appropriate Officers, who are divisional Commanding Officers, these services are increasingly delivered in a more centralized manner.

The drive toward increased consistency in the disciplinary process has led to the development of standardized job descriptions, performance agreements and accountability standards for Appropriate Officer Representatives. This standardization reflects the structure and accountability of the newly created centralized discipline authority without interfering with the professional obligations of Appropriate Officer Representatives to instruct their clients, namely the Appropriate Officers whom they represent before RCMP boards, or with their ability to provide legal representation.

Other program modifications were implemented during the reporting period in support of the improved delivery of the discipline process. These include enhancing the capacity of Divisions to review disciplinary matters within their purview, thus allowing Appropriate Officer Representatives to better focus on their specialized role and become more involved in the Early Resolution Process. This increased involvement has had a positive effect in that it has provided opportunities to expand the experience of Appropriate Officer Representatives in disciplinary matters. As well, the Appropriate Officer Representative Directorate participated in a consultation group in conjunction with the Member Representative Directorate to finalize the Case Management System Pilot. Once the reporting on the pilot is completed at the end of the next reporting period, it will be possible to assess the extent to which this new approach to Case Management has facilitated the formal board process and promoted the delivery of timely disciplinary measures.

FIGURE 11: Formal Discipline for Code of Conduct Violations, FY 2009-2010

	Total hearings	Average days to conclusion	Min/Max days
Disposition - Established	40	390	3/2016
Not Established	3	206	107/385
Reprimand only	1	373
1 days' pay	3	944	65/2016
2 days' pay	2	726	16/924
3 days' pay	3	320	174/414
4 days' pay	3	195	110/297
5 days' pay	4	206	71/302
6 days' pay		0
7 days' pay	3	270	248/284
8 days' pay	1	418
9 days' pay	2	238	225/251
10 days' pay	14	370	3/1036
Order to resign	2	425	203/647
Dismissal	2	418	337/499
Total Average		369	3/2016

FIGURE 12: Discipline Caseload Activity Year-to-Year Comparison, FYs 2000-2010

Fiscal Year (FY)	Carried over from previous FY	New Cases	Cases Adjudicated	Allegations withdrawn	Member Resigned	Year-end balance
2000-2001	21	61	23	6	10	43
2001-2002	43	78	39	8	7	67
2002-2003	67	87	54	8	17	75
2003-2004	75	96	49	17	6	99
2004-2005	99	106	63	15	23	104
2005-2006	104	81	70	18	20	77
2006-2007	77	99	47	14	12	103
2007-2008	103	83	52	24	13	97
2008-2009	97	69	56	12	13	85
2009-2010	85	89	43	16	13	102

(iii) Member Representative Directorate

During 2009, the Member Representative Directorate opened 185 files, as shown in Figure 13.

As a result of a change in file management practices in 2008, the Member Representative Directorate undertook steps to capture data on consultative work. Member Representatives began opening consultative files when members first sought advice on a matter within the Directorate’s mandate, regardless of whether it ultimately proceeded to a hearing. This accounts for a significant increase of opened files in 2008. In 2009, the number of files opened is similar to 2008. An overview of incoming files in 2009 , by type, is shown in Figure 14.

Work on the existing Commissioner’s Standing Orders (Representation) is ongoing. The goal is to update the standing order so that it better reflects and defines the duties and responsibilities of the Member Representative Directorate. This work coincides with the ongoing review of the Directorate’s mandate to ensure that the roles of Member Representatives are consistent with the program and that of the Appropriate Officer Representatives.

One of the most significant initiatives undertaken by the Member Representative Directorate during the past reporting period was the development and implementation of a Mentorship Program. This program creates an opportunity for legally trained members to work on a part-time basis with the Member Representative Directorate. It facilitates opportunities for prospective Member Representatives to gain familiarity with the Directorate and gain exposure to the responsibilities without having to transfer permanently. More importantly, for the Member Representative Directorate as well as for the Adjudicative Services Branch, the Program provides management with the opportunity to observe a potential candidate’s individual strengths and weaknesses before a formal transfer is authorized. The Mentorship Program also creates a pool of qualified and legally trained members, who have gained some initial work experience, from which to select when future vacancies arise. One of the most significant ongoing challenges faced by the Member Representative Directorate has been to fill vacant positions. It can take up to six months to find a functional replacement who will be able to contribute in a meaningful way. The program has been extended nationwide with members being identified in three of the four Regions. Additional candidates are now in line for potential consideration.Since its implementation, the program has made significant inroads to address the number of cases in the queue.

The Member Representative Directorate has also encouraged the use of the Early Resolution Process and other early resolution initiatives before matters progress to a contested hearing. Early resolution initiatives have been included as measures of performance within Member Representatives’ performance agreements.

FIGURE 13: Member Representative Directorate, Incoming Files 2000-2009

Data Synopsis	2009	2008	2007	2006	2005	2004	2003	2002	2001	2000
NUMBER OF FILES	185	184	121	95	98	61	104	123	78	53

FIGURE 14: Member Representative Directorate, Types of Incoming Files 2009

	Incoming 2009
CONSULTATION	91
SUSPENDED WITHOUT PAY	12
NOTICE SERVED	74
FORMAL DISCIPLINE APPEAL	3
INFORMAL DISCIPLINE APPEAL	1
LOSS OF BASIC REQUIREMENTS SUSPENSION	0
MEDICAL DISCHARGE	2
OTHER	2
TOTAL RECEIVED FILES	185

4.3 Professional Standards and External Review Directorate

During 2009-2010, the Professional Standards and External Review Directorate continued its review of the member suspension policy as well as the Commissioner’s Standing Orders (Appropriate Officer).²⁵

(i) Review of Suspension Policy

Three key areas of the RCMP suspension policy are currently being examined. Firstly, the officer who has the authority to suspend a member from duty will have to review the circumstances justifying the suspension every thirty days. Secondly, the criteria for suspension from duty are to be clarified. Finally, the need to reassign a member to more appropriate duties will be emphasized when a suspension is not ordered or is revoked where the nature of the alleged misconduct calls for the member to perform other duties.

(ii) Review of Commissioner's Standing Orders (Appropriate Officer)

In keeping with Recommendation 28 of the Task Force on Governance and Cultural Change in the RCMP, a Commanding Officer for Headquarters was appointed on October 21, 2008. With a Commanding Officer for Headquarters as well as a Commanding Officer for “A” Division (the operational component of the RCMP in the National Capital Region), the need arose to clarify the interpretation and application of the Commissioner’s Standing Orders (Appropriate Officer) with respect to the roles and responsibilities of both the Appropriate Officers for “A” Division and for Headquarters. The Professional Standards and External Review Directorate is presently examining this issue to clarify the authority of the Appropriate Officer for the approximately 3,500 members stationed in the National Capital Region.

4.4 Regional/Divisional Professional Standards Units

Throughout this reporting period, concerted efforts have been made by the Adjudicative Services Branch to work with regional/divisional Professional Standards Units to effectively manage the discipline process. In particular, efforts to clarify the roles and responsibilities of discipline reviewers continue and work has been undertaken to finalize the staffing of these positions in every Region. To this end, positions have been classified, established and staffed in all but one Region. During the next reporting period, the Adjudicative Services Branch will provide the required training in support of these important elements of the disciplinary process.

(i) Informal Disciplinary Action

During 2009-2010, 254 instances of informal disciplinary action were recorded. This constitutes a slight increase from the 231 occurrences recorded during the 2008-2009 reporting period and close to the 256 that arose in 2007-2008. Figure 15 illustrates informal disciplinary actions, by Division, during the past ten years. Given the size of the organization and the number of interactions with the public in any given year, this difference is not considered to be statistically significant.

Figure 16 illustrates informal disciplinary action between 2000-2010, grouped by type of violation and Division. The raw data gathered in 2008-2009 will be assessed against the data gathered during this reporting period. The purpose of gathering this information is to facilitate the completion of a trend analysis, the progress of which will be updated in the next reporting period.

The newly created Office of Professional Integrity will be better positioned to oversee matters that relate to the management of informal discipline. This will include a continued emphasis on the responsibilities of discipline reviewers in the Regions and their compilation of comprehensive informal discipline statistics.

 

FIGURE 15: Informal Discipline by Division, FYs 2000-2010²⁶

FIGURE 16: Informal Discipline by Violation Type, by Division, FYs 2000-2010²⁷

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²² As illustrated in Figure 11, cases were concluded in 369 days, on average, during the 2009-2010 reporting period. This compares to an average of 403 days to conclude a case during the 2008-2009 reporting period.

²³ Supra note 2, s. 43(2).

²⁴ Supra note 2, s. 43(3).

²⁵ Commissioner's Standing Orders (Appropriate Officer), 2004, [RI-1], (Not published, signed by the Commissioner on May 29, 2004, as amended on July 15, 2004.).

²⁶ The data in the 2008-2009 Annual Report has been revised and updated.

²⁷ The data in the 2008-2009 Annual Report has been revised and updated.