Docket:
T-723-13
Citation: 2014 FC 67
Ottawa, Ontario, January 21, 2014
PRESENT: The Honourable Madam Justice Kane
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BETWEEN:
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SHAWN P. ELHATTON
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Applicant
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and
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ATTORNEY GENERAL OF CANADA and APPROPRIATE OFFICER “J” DIVISION
OF
THE ROYAL CANADIAN MOUNTED POLICE
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant, Corporal Elhatton, is a member of
the Royal Canadian Mounted Police [RCMP”] He seeks judicial review of the
decision rendered on March 18, 2013 by the Commissioner of the RCMP, Robert W.
Paulson, (the “Commissioner”) which sanctioned the applicant and demoted him
from Corporal to Constable. For the reasons that follow, the application is
dismissed.
Background
[2]
The applicant’s conduct which has resulted in
disciplinary proceedings, including the decision now under review, dates back
to 2002.
[3]
In 2003, the applicant was served with a first
Notice of Disciplinary Hearing with respect to three allegations which occurred
in 2002 and 2003. In 2005, the applicant was served with a second Notice of
Disciplinary Hearing with respect to three allegations which occurred between
1993 and 1998.
[4]
Several of the allegations involve the
applicant’s ex-wife, Constable Elhatton. The references to Corporal Elhatton
refer to the applicant and references to Constable Elhatton refer to the
applicant’s ex-wife, who was his wife at the time of the earlier incidents.
[5]
The six allegations were described in the
decision and are summarised below. The allegations were heard together by an
Adjudication Board (the “Board”) in June and August 2005:
•
Allegation #1
(mitten incident) (December 2002): when the applicant’s ex-wife, RCMP Constable
Elhatton, came to pick up their children, the applicant yelled at her and her fiancé
using “offensive, insulting and vulgar language”. The applicant also shook his
finger at her, made an obscene gesture and “threw a pair of mittens at her,
striking her in the chest”. There was a marked RCMP vehicle in front of the
house at this time;
•
Allegation #2 (office
incident) (February 2003): during a meeting, the applicant was informed that Sergeant
F (Sgt F) would be his supervisor. The applicant stated that this was “unconscionable”.
After the meeting he went to the office of the District Commander [the “DC”].
The applicant “used offensive and insulting language toward Sgt F, a co-worker
and member superior to [him] in rank and authority, and treated him in an
aggressive and disrespectful manner” by pointing his finger in Sgt F’s face and
telling him he was “spineless” and “gutless”;
•
Allegation #3
(disobeying a lawful order incident) (July 2003): the applicant failed to obey
the order of the DC to attend an appointment with a psychologist relating to
anger management counselling;
•
Allegation #4
(car wash incident) (between February 1993 and August 1996): the applicant
struck his wife, Constable Elhatton, on the leg with a closed fist;
•
Allegation #5
(gun incident) (between February 1993 and August 1996): during an argument the
applicant grabbed his wife’s hand and placed it around his service firearm and
pointed the firearm to his head saying, “If you hate me so much, just shoot me,
shoot me now”. His wife told him to put down the firearm and he did;
•
Allegation #6
(vacation incident) (between May and October 1998): during a vacation with his
wife and his children, the applicant grabbed his wife by the arm and pounded on
her forearm four or five times.
[6]
These same allegations were described in a
similar way in Elhatton v Canada (Attorney General), 2013 FC 71, [Elhatton
2013].
[7]
The Adjudication Board’s decision dated
September 6, 2005 directed the applicant to resign within 14 days or be
dismissed.
[8]
The applicant appealed the sanction and the
Board’s findings with respect to allegations 3, 4, 5 and 6 to the Commissioner
of the RCMP. Allegation 1 (mitten incident) and allegation 2 (office incident)
were not appealed.
[9]
Before considering an appeal, the RCMP External
Review Committee [the “ERC”] an independent civilian body, reviews the Board’s
decision and provides a non-binding recommendation to the Commissioner.
[10]
The ERC considered additional submissions,
including an allegation by the applicant that his former wife had perjured
herself before the Board. This allegation related to her misstatement of the
date she had first met her fiancé and was not about the specific incidents.
[11]
The ERC made recommendations to the Acting
Commissioner, Rod Knecht, on February 10, 2009. Among other recommendations,
the ERC recommended that the Acting Commissioner allow the appeal with respect
to allegation 3 (disobeying a lawful order incident); order a new hearing with
respect to allegations 4-6 (car wash, gun and vacation incidents); and take
into account the information regarding the perjury allegations. The ERC
recommended that the sanctions for allegations 1 and 2 (mitten and office
incidents) should be a reprimand and forfeiture of three days pay for each
allegation.
[12]
The Acting Commissioner, Rod Knecht, accepted
the Board’s findings regarding allegations 3-6, but not regarding the sanction
for allegations 1 and 2.
[13]
On April 29, 2011 he directed the applicant to
resign within 14 days or the applicant would be dismissed.
[14]
The applicant sought judicial review of the
April 29, 2011 decision and raised only one issue: whether the Acting
Commissioner erred in failing to find that the allegations of perjury required
that a new hearing before the Board be constituted to consider the allegations
of misconduct.
[15]
On January 25, 2013 this Court allowed the
Judicial Review of the decision of the Acting Commissioner (Elhatton 2013).
[16]
Justice Rennie held that the Acting
Commissioner, who concluded that his assessment of the credibility of the
applicant’s ex-wife did not change based on the new evidence presented, was not
in a position to make such credibility determinations. Justice Rennie found
that allegations 4, 5 and 6 had been sustained on the testimony of the
applicant’s ex-wife. Justice Rennie set out two options for the Commissioner:
remit allegations 4, 5 and 6 to a newly constituted board, or reconsider and
vary the decision in respect of the sanction on the basis that allegations 3,
4, 5 and 6 had not been established; in other words, only on the basis of
allegations 1 and 2 which were established (Elhatton 2013 at para 74).
[17]
Commissioner Robert Paulsen considered the two
options and noted that allegation 3 had been found to have not been established
and that allegations 4, 5 and 6 had occurred over 15 years ago and that the
disciplinary proceedings had been lengthy. Therefore, it was not reasonable or
efficient to remit these allegations to a new Board.
[18]
The Commissioner reconsidered the sanction for
allegations 1 and 2 and rendered his decision on March 18, 2013. This decision
is now the subject of judicial review.
Decision under review
[19]
The sole issue considered by Commissioner
Paulsen was the appropriate sanction for allegations 1 and 2. The Commissioner
disagreed with the ERC’s recommendation that the applicant be given a reprimand
and forfeiture of three days pay for each of the allegations. In his reasons he
found that the ERC did not give sufficient consideration to the applicant’s
prior misconduct of assaulting a prisoner which demonstrated a lack of
discipline and self-control and for which he was formally sanctioned by the
Board in 1999 and convicted of a criminal offence.
[20]
The Commissioner noted that, in his opinion,
the applicant had still not taken responsibility for his prior misconduct or
made serious attempts toward rehabilitation. The Commissioner noted the
testimony of the DC that management had lost confidence in the applicant.
[21]
The Commissioner noted that the applicant
continued to minimize the facts surrounding his previous misconduct relating to
the assault of a prisoner. He also noted that the Board that dealt with this
incident in 1999 had referred to the seriousness of the applicant’s conduct and
cautioned the applicant that any recurrence would invite the most serious of
sanctions.
[22]
The Commissioner considered that allegations 1
and 2 both involved a lack of self control and discipline and found that this
demonstrated a progressive pattern of inappropriate behaviour that showed the
applicant did not learn from his past discipline and did not appreciate the
seriousness of his actions and the importance of the RCMP’s core values.
[23]
The Commissioner added that both incidents
showed that the applicant failed to exercise sound judgment and communicated in
a disrespectful and aggressive manner on and off duty. The Commissioner added
that the applicant’s actions showed poor ethical behaviour and a poor example
of leadership. The Commissioner referred to the RCMP’s expectations of
experienced members holding the rank of corporal and their need to set an
example both within the RCMP and in public.
[24]
The Commissioner stated that his decision was not
based on the applicant’s technical competence but on the other factors he
described regarding the applicant’s lack of judgment, responsibility,
leadership, promotion and demonstration of RCMP values.
[25]
The Commissioner concluded that the applicant’s
conduct undermined his ability to lead and act as a role model and that
continuing in the force at his present rank would not be appropriate.
[26]
Based on the overall history, the Commissioner
concluded that progressive discipline was required and that demotion was an
appropriate sanction.
[27]
The Commissioner imposed the following
sanctions:
1. demotion in
rank, from Corporal to Constable […];
2. recommendation for a transfer to a detachment other than Oromocto, New Brunswick […];
3. direction to
undergo a health assessment; and
4.
recommendation to undergo anger management
counselling.
[28]
The Commissioner also noted that if the
applicant found himself before an Adjudication Board again, he would likely
face dismissal.
The issues
[29]
The applicant submits that the Commissioner
should have ordered a new hearing before a newly constituted Board rather than
impose discipline for allegations 1 and 2 and that his failure to do so is a
breach of procedural fairness. The applicant acknowledges that allegations 1
and 2 were not appealed but due to the unresolved allegations of perjury with
respect to the applicant’s ex-wife, the allegations of misconduct can not be
the basis for the sanctions imposed.
[30]
The applicant also argues that allegations 1 and
2 are now over 10 years old and should not now be pursued due to the lapse of
time.
[31]
The applicant also submits that the decision was
unreasonable because the severe sanction imposed is not supported by the
evidence nor is it consistent with other sanctions imposed for similar conduct.
Standard of review
[32]
It is well-accepted that “[w]hether the
Commissioner came to an appropriate decision as to the sanction to be imposed […]
is subject to a standard of reasonableness.” (Pizarro v Canada (Attorney General), 2010 FC 20, [2010] FCJ No 23 [Pizarro] at para 48) As
Justice Phelan stated in Pizarro, “[p]revious decisions have
recognized the greater expertise the Commissioner would have in this regard
coupled with the privative clauses, the largely fact-driven nature of the
proceeding and the highly discretionary nature of the decision” (at para 48;
referring also to Kinsey v Canada (Attorney General), 2007 FC 543, 313
FTR 88 at paras 40-46).
[33]
Similarly, Justice Rennie stated in Elhatton
2013 at paragraph 29:
The
standard of review of the Commissioner is reasonableness. The Commissioner is
entitled to considerable deference for both his determination on the Code of
Conduct allegations and the appropriate sanction. The Commissioner has
specialized expertise on the realities of policing and what is required to
maintain the integrity and professionalism of the RCMP: Gill
v Canada (Attorney General), 2007 FCA 305.
[34]
Justice Rennie emphasized at
paragraph 30 that deference is owed:
The
Commissioner has vast experience in assessing the exigencies of policing,
including the appropriate use of force and what behaviour in officers' personal
and professional lives may reflect on the professionalism of the RCMP. It is
the Commissioner who is accountable for the reputation of the RCMP - not the
Court.
[35]
The standard of review for issues of procedural
fairness is correctness.
Should
the Commissioner have referred allegations 1 and 2 to a newly constituted Board
for adjudication?
[36]
The applicant submits that although Justice
Rennie provided two options for the Commissioner in allowing judicial review -
that allegations 4, 5, and 6 be remitted to a newly constituted board or that
the sanctions be reconsidered on the basis that allegations 3, 4, 5 and 6 had
not been established - these comments were obiter, in other words not
binding. The applicant submits that Commissioner Paulsen’s decision to
determine the sanctions for allegations 1 and 2, which were the remaining
allegations, was a breach of procedural fairness because the applicant should
have had the opportunity to respond to those allegations again and cross
examine the witnesses, particularly because of the “sceptre” or “shadow” of
perjury cast on the testimony of his ex-wife.
[37]
The applicant argues that the Acting
Commissioner had found that the allegation of perjury was substantiated, yet
all the findings of fact were made in the context of that testimony. He submits
that whether or not there was actual perjury, the findings of fact were likely
based on or influenced by at least the perception of perjury and, therefore,
the only option for the Commissioner was to convene a new Board of Adjudication
to consider the allegations and provide an opportunity for the applicant to
cross-examine the witnesses.
[38]
The applicant also submits, with respect to the
sanction, that the Commissioner placed too much weight on the facts of
allegation 1 which was based on the evidence of the applicant’s ex-wife.
[39]
The respondent submits that there is only one issue for
this judicial review and that is the reasonableness of the sanctions imposed
for allegations 1 and 2. These allegations have been established and were not
appealed. The applicant can not now seek to challenge these allegations. The
respondent also submits that there was no finding of perjury by Justice Rennie.
There was no breach of procedural fairness
[40]
I do not agree that the options provided by Justice
Rennie at paragraph 74 of Elhatton 2013 were obiter. The two
options were a key part of the decision, although the options were phrased in a
permissive manner:
The Commissioner, may,
in the exercise of the powers available to him under subsection 45.16(2) and
paragraph 45.16(3)(b) of the Act, remit
Allegations 4, 5 and 6 to a newly constituted Board. The Commissioner may
also reconsider and vary his decision in respect of sanctions on the basis
that Allegations 3, 4, 5 and 6 have not been established. [Emphasis added]
[41]
The Commissioner was guided by the decision and
chose to focus on the sanctions for the allegations which had been established,
i.e. allegations 1 and 2.
[42]
In the decision of April 2011, the Acting
Commissioner found that the Board did not err in finding that the conduct of
both incidents was disgraceful and brought discredit to the RCMP contrary to subsection 39(1) of the Royal Canadian Mounted Police
Regulations, 1988 (SOR/88-361) (the “Regulations”).
[43]
Commissioner Paulsen’s reliance on the two
established allegations as the basis for the sanction imposed does not
constitute a breach of procedural fairness. Allegations 1 and 2 are no longer
allegations as they have been established and the findings of the Adjudication
Board with respect to the allegations were not appealed.
[44]
The only issue before the Commissioner was the
appropriate sanction on the basis of the established misconduct; the mitten
incident and the office incident.
[45]
With respect to the applicant’s submissions
about the shadow of perjury, Justice Rennie noted in Elhatton
2013 at paragraph 71 that “whether Cst. Elhatton in fact gave perjured
testimony remains unproven.”
[46]
The respondent submits that Justice Rennie did
not make a finding of perjury. This is true, as that is not the role of the
Court on judicial review. However, Justice Rennie expressed concern about the
reliance on testimony which had not been subjected to cross examination, but
this focussed on allegations 4, 5 and 6:
[71] Before
concluding, it should be noted that the question whether Cst. Elhatton in fact
gave perjured testimony remains unproven. The applicant was denied a
chance to establish that point. The fact that no criminal charges were
laid is not determinative. The dual prosecutorial test of a reasonable
prospect of conviction and it being in the public interest to prosecute have no
bearing on whether the credibility of Cst. Elhatton, when confronted with the
contradictory evidence, remained intact.
[72] Secondly,
the Commissioner received as fresh evidence a “joint affidavit”, signed by Cst.
Elhatton and her fiancé. Joint affidavits are unknown to our legal
system. There are many good reasons for this; they inherently reflect a
collusion between two separate and distinct witnesses and interfere with the
truth-seeking function of cross-examination. In respect of this
particular affidavit, the affiant deposes that it was based on personal knowledge
when it is manifestly not; rather it is replete with egregious hearsay.
[73] The
evidence in the joint affidavit was relied on to explain the outcome of the
perjury investigation, and to support the conclusion that the credibility of
Cst. Elhatton would be unaffected. While the Commissioner is not bound by
strict rules of evidence, reliance on the joint affidavit to conclude that her
credibility would be unaffected falls short of the Dunsmuir standard of
cogency. It does not follow that because no charges were laid her
credibility in respect of her testimony before the Board would be unaffected.
[47]
Ideally the Adjudication Board should have
resolved the issue of when the applicant’s ex-wife, Constable Elhatton, actually
met her fiancé and whether her alleged misstatement had any bearing on the
credibility of her testimony regarding the descriptions of the incidents.
[48]
Allegation 1 was based, at least in part, on her
testimony. However, allegation 1 is no longer an allegation. It was
established.
[49]
Allegation 2, which is a serious matter on its
own, despite the applicant’s attempt to characterise it as minor, had nothing
to do with the testimony of his ex-wife. The incident occurred within the RCMP
and was witnessed by RCMP officers. On its own, it would justify a sanction.
It was found to be disgraceful and disorderly conduct contrary to section 39(1)
of the Regulations. The Commissioner’s reasons regarding the sanctions
stem as much from this incident as the mitten incident. For example, the
Commissioner referred to his loss of confidence in the applicant, the
applicant’s lack of leadership and the applicant’s lack of respect for RCMP
core values.
[50]
The only issue on this judicial review is the
reasonableness of the sanction imposed for the established allegations.
Was the Commissioner’s decision reasonable?
[51]
The applicant submits that the decision to
demote the applicant was unreasonable: the Commissioner did not consider
mitigating factors and the sanction was disproportionate when compared to the conduct
of others that resulted in demotion.
[52]
With respect to mitigating factors, the
applicant submits that the Commissioner failed to consider that the allegations
are now over 10 years old and should not now be pursued. The applicant also
submits that the mitten incident relates to his relationship with his ex-wife
and not to his professional conduct and that the office incident is minor and
relates to only one interchange with one supervisor.
[53]
The applicant further submits that the
Commissioner failed to apply the principle of parity in sanctions. The
applicant referred to several decisions pursuant to the Regulations that
sanctioned members for disgraceful behaviour with a reprimand and forfeiture of
pay rather than demotion.
[54]
The respondent’s position is that the
Commissioner properly considered the aggravating and mitigating factors and
applied the principle of parity and that the progressive discipline model
supports the sanction of demotion.
[55]
The respondent submits that the Commissioner
identified the applicant’s poor potential for rehabilitation as an aggravating
factor and noted that the applicant was unwilling to take responsibility for
his prior misconduct and repeatedly minimized his assault of a prisoner to such
a point that he misled the Board. The respondent relies on The Appropriate
Officer of “F” Division and Constable Morton (2003), 19 AD (3d) 40 (Commr)
as authority for the proposition that a member who does not take responsibility
for his actions is not in a position of rehabilitation.
[56]
In addition, the Commissioner considered the
seriousness of the applicant’s assault of a prisoner and the Board’s warning
that any future discipline would invite the most serious of sanctions.
[57]
The Commissioner noted as a mitigating factor
that the applicant had the support of some members who he works with but
emphasized that management had lost confidence in him.
[58]
The respondent submits that the Commissioner was
not obliged to consider the passage of time as a mitigating factor. The
respondent notes that the process of serving the Notice of Disciplinary Action
and the Notice of Disciplinary Hearing and the hearings followed the procedures
and time periods provided by the Royal Canadian Mounted Police Act, (RSC, 1985, c R-10) (the “Act”). The
elapsed time is due to the statutory appeal process and the fact that this is
the second judicial review.
[59]
The respondent acknowledges the principle of
parity in sanctions and that parity is a relevant consideration but submits
that other decisions of the Commissioner support the reasonableness of the
decision to demote the applicant. The respondent referred to several cases
involving similar aggravating factors where the Commissioner had demoted the
member.
[60]
The respondent also notes that the applicant
does not submit that the delay in proceeding now has breached his right to
procedural fairness, and that there is no evidence that the length of
proceedings caused prejudice to him.
The decision was reasonable
[61]
The Commissioner provided thorough reasons which
set out the factors he took into account and how these considerations justified
his decision to demote the applicant.
[62]
The Commissioner did not fail to consider
mitigating factors or properly balance them with aggravating factors. The
reasons refer to several aggravating factors, including: the applicant’s prior
misconduct and, in particular, his failure to take full responsibility for his
actions and to rehabilitate himself; the lack of discipline and self control at
the root of the mitten and office incident and the applicant’s prior
misconduct; and, management’s loss of confidence in the applicant. These
factors led the Commissioner to conclude that progressive discipline was
necessary and that the sanction proposed by the ERC was inadequate.
[63]
The Commissioner’s reasons also indicate that he
considered mitigating factors; he acknowledged the support of some colleagues
and the professional counselling sought from a clinical social worker. The
Commissioner, however, emphasized that the applicant’s technical competence was
not at issue but rather his responsibility and leadership abilities. The
Commissioner noted that although the applicant sought counselling, he did not
attend the anger management counselling that was recommended.
[64]
With respect to the applicant’s submission that the
Commissioner should not have proceeded to impose sanctions for such old
allegations, or that this is a mitigating factor, I do not accept that the age
of the misconduct precludes the consequences. The applicant pursued all
possible options to challenge the related allegations (i.e. those included in
the first and second notice) and can not now assert that the passage of time
which has resulted from these processes makes the remaining allegations, which
have been established, immune from sanction because the misconduct occurred
over 10 years ago.
[65]
The Commissioner took the passage of time into
consideration with respect to allegations 4, 5 and 6 as these were over 15
years old and had involved lengthy proceedings and still remained to be established.
The Board initially came to its decision regarding the six allegations in 2005
(The Appropriate Officer of “National Headquarters Division” and
Corporal Shawn P. Elhatton (2011), 8 AD (4th) 209 (Commr)). As the
respondent notes, the applicant has not established how proceeding to sanction
the established allegations would prejudice him.
[66]
The applicant also submits that the mitten and office
incidents were minor and should not have been pursued at all. The applicant
submits that the mitten incident occurred in the context of his estranged
relationship and that the office incident was an isolated incident.
[67]
The Commissioner did not view the mitten
incident as a trivial domestic argument nor did he view the office incident as
a minor exchange between colleagues and he provided clear reasons for his
findings. The Commissioner noted that the applicant:
“[…] became verbally
aggressive and disrespectful to his former spouse, in the presence of his
children and in public, and also at the office, towards a co-worker, who was a
member superior in rank, displayed a critical lapse in judgment and
responsibility. This failure in judgment and leadership, taking into account
his previous related misconduct, has led me to conclude that Corporal Elhatton
should not maintain his current rank as corporal.” (Decision at para 35)
[68]
While the mitten incident could seem minor viewed on
its own, without the backdrop of the other allegations, the applicant’s
disciplinary history provides relevant context for this incident. In addition,
the mitten incident occurred in the presence of the applicant’s children and
outside his home with a RCMP vehicle on display in front of the home.
[69]
The Commissioner’s characterization of the
events and his reasons for finding that the applicant was not deserving of
maintaining his rank was reasonable and was supported by the evidence on the
record.
[70]
With respect to the applicant’s position that
the Commissioner’s decision was unreasonable because it did not observe the
principle of parity, it is well-settled that decisions of the Board (and
of Commissioners) are not binding on other Commissioners or on the Court.
According to Justice Rouleau in Rendell v Canada (Attorney General),
2001 FCT 710, 208 FTR 1 [Rendell], “while the principle of parity
of sanctions is certainly relevant in the context of disciplinary proceedings
within the RCMP, it cannot be applied in such a manner as to fetter the
discretion bestowed upon the Commissioner by the legislation” (at para 13)
[71]
In Rendell, Justice Rouleau described the
“complex and comprehensive internal disciplinary process” (at para 14) set out
under Part IV of the Act. He noted at paragraph 17 that:
Accordingly, the Commissioner is the highest appellate
body within the disciplinary process as set out by Parliament in the
legislation. As such, he cannot be considered to be bound by previous decisions
of the Adjudication Board in the manner suggested by the applicant. This is not
to say that the disposition of similar cases is not relevant. However, such cases
are for the purpose of consideration only. The Commissioner remains free and
unfettered to make a decision based upon the specific and unique facts of each
individual case before him. It was therefore, certainly within his power to
conclude that in Constable Rendell's case, unlike previous cases of members
committing domestic violence, there were insufficient mitigating circumstances
to warrant the imposition of a less severe sanction.
[72]
It was within the Commissioner’s discretion to
find that there were sufficient aggravating circumstances to impose a serious
sanction on the applicant. As the Federal Court of Appeal stated in Gill v
Canada (Attorney General), 2007 FCA 305, 370 NR 257,
“findings of disgraceful conduct and findings on the sanctions to be imposed
are primarily fact-driven and discretionary determinations” (at para 14).
[73]
As noted by the respondent, the policy of
progressive discipline supports the Commissioner’s decision to sanction the
applicant by way of demotion.
[74]
I note that subsection 45.12(3) of the Act
sets out the options for sanctions. The member could be forfeited pay for up to
10 days, recommended for demotion, directed to resign, or dismissed, with each
sanction being more serious. Given that the applicant had previously been sanctioned
with forfeiture of pay, the next level of discipline was demotion. That
sanction could have been applied for the mitten incident or the office incident
on their own, or for both incidents.
[75]
I do not agree with the applicant that the
Commissioner’s decision is unfair when compared with other decisions. The
applicant referred to several Board decisions where members received reprimands
and forfeiture of pay for misconduct amounting to insubordination or
disgraceful conduct. However, when these decisions, all of which can be
distinguished on their facts, are probed, they do not support the argument that
the sanction imposed on the applicant is unreasonable due to lack of parity.
[76]
For example, the decision in The Appropriate
Officer of “D” Division and Cst. Blanchette (2007), 1 AD (4th) 254 is
distinguishable on the basis of the Board’s finding that the Constable’s
“serious medical condition at the time of the misconduct militates heavily in
favour of leniency and compassion” and that the Constable apologized shortly
after the argument and accepted responsibility by participating in an Early
Resolution Process.
[77]
In The Appropriate Officer of “E” Division and Cpl.
Perhar (2012), 11 AD (4th) 231, the member
used inappropriate language and offensive comments, characterized by sexual
content, in the workplace over a seven or eight month period. The Board, unlike
the applicant’s case, accepted a joint submission on a sanction. While the
misconduct was very serious, the facts differed. In addition, the Board noted
that a significant mitigating factor was the Member’s formal admission of his
misconduct along with the support from his peers and his unblemished
disciplinary record.
[78]
The Appropriate Officer of “F” Division and
Insp. Sabean (2009), 5 AD (4th) 107 may appear to be more analogous as it involved a Member using
vulgar, inflammatory and unprofessional language in the course of an arrest who
had four previous and similar disciplinary measures. However, the prior
misconduct was less serious than that of the applicant’s assault of a prisoner.
In addition, the parties submitted an Agreed Statement of Facts and a joint
proposal on the sanction. The Board accepted the proposal and noted that
without the support of the Appropriate Officer, it would have imposed a more
serious sanction and added that it found the member to be extremely hard
working, principled, and dedicated to the Force and that very favourable
comments had been provided by his superiors.
[79]
In The Appropriate Officer of “K” Division
and S.S. Ray (2011), 10 AD (4th) 237, a Member was sanctioned for
allegations of disgraceful conduct involving grabbing his spouse in a manner
that caused her a minor injury, restraining her from departing and careless
storage of a firearm. Unlike the applicant’s case, the parties submitted a
jointly proposed sanction which the Board accepted, noting that there were
mitigating and supporting factors on behalf of the member including his
immediate apology to his spouse and his “sincere apology to the RCMP” and the
support of his immediate superior and the confidence of the Commanding Officer.
[80]
In conclusion, there is no doubt that the
sanction of demotion is severe, but on the spectrum of sanctions in a
progressive discipline model, it is not the most severe. Moreover, it is
justified by the Commissioner’s thorough consideration of the conduct and the
aggravating and mitigating factors, including the applicant’s past disciplinary
record.
[81]
As noted by Justice Rennie in Elhatton 2013
and referred to above, the Commissioner has specialized expertise and knows
what is required to maintain the integrity of the RCMP. Deference is owed to
the decision of the Commissioner. The Commissioner’s decision clearly conveys
that the applicant’s conduct does not reflect the model of policing the RCMP
strives to achieve and the Commissioner’s reasons set out the justification for
that conclusion.
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