Cst. Justin Harris: Formal Discipline & the 43(8) Limitation Period
In my original post made to this website, I explained to you how, in October 2006, I faced a total of four (4) allegations from two (2) female accusers and was ultimately made to appear at a formal disciplinary hearing before an RCMP Adjudication Board. Further, you may recall I told you that a preliminary motion brought on at the onset of the hearing by my legal counsel challenging the RCMP Act section 43(8) one (1) year limitation period (to initiate a hearing) proved successful, and that the presiding board members ruled they did not have jurisdiction to hear the matter because the “E” Division Appropriate Officer had breached RCMP Act section 43(8) by initiating the hearing well beyond the expiration of the prescribed Limitation period. Ultimately this resulted in the board members dismissing the hearing (and allegations) all together. So what does this really mean?
Unless you’ve been subjected to an internal Code of Conduct investigation and received informal or formal discipline as a member of the RCMP, chances are you’re relatively unfamiliar with Part IV of the RCMP Act. Part IV of the Act governs the behavior and discipline of RCMP members. I will endeavor today to provide you with an understanding of the applicable provisions in the Act relevant to my formal disciplinary hearing, and the law as it pertains to the subsection 43(8) Limitation period.
Let’s start by examining a number of the provisions found in Part IV (Discipline) of the RCMP Act.
Who is the Appropriate Officer?
Appropriate Officer. For the purposes of this Part, the appropriate officer shall be:
(a) for a member or officer located in a division, the commanding officer of that division;
(b) for a member or officer posted outside Canada, the Assistant Commissioner International Liaison and Protective Operations; and
(c) for a commanding officer, the commanding officer’s regional deputy commissioner. Notwithstanding paragraph 4(a) of the Commissioner’s Standing Orders (Appropriate Officer), the appropriate officer for a member of Headquarters shall be the Commanding Officer, “A” Division.
The behavioral standards for all RCMP members are set out at paragraph 37, which reads a follows:
37. Standards. It is incumbent on every member
(a) to respect the rights of all persons;
(b) to maintain the integrity of the law, law enforcement, and the administration of justice;
(c) to perform the member’s duties promptly, impartially, and diligently, in accordance with the law and without abusing the member’s authority;
(d) to avoid any actual, apparent or potential conflict of interests;
(e) to ensure that any improper or unlawful conduct of any member is not concealed or permitted to continue;
(f) to be incorruptible, never accepting or seeking privilege in the performance of the member’s duties or otherwise placing the member under any obligation that may prejudice the proper performance of the member’s duties;
(g) to act at all times in a courteous, respectful and honourable manner; and
(h) to maintain the honour of the Force and its principles and purposes.
The authority to order and carry out an internal Code of Conduct investigation against an RCMP member is found at subsection 40. (1), which reads as follows:
40. (1) Investigation. 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.
Formal Disciplinary Action:
The authority for initiating formal disciplinary action (i.e. a hearing) against an RCMP member for an alleged contravention of the Code of Conduct is found at paragraph 43. In that regard, I have chosen only to include below the subsections most relevant to this discussion, which read as follows:
43. (1) Initiation. Subject to subsections (7) and (8), where it appears to an appropriate officer that a member has contravened the Code of Conduct and the appropriate officer is of the opinion that, having regard to the gravity of the contravention and to the surrounding circumstances, informal disciplinary action under section 41 would not be sufficient if the contravention were established, the appropriate officer shall initiate a hearing into the alleged contravention and notify the officer designated by the Commissioner for the purposes of this section of that decision.
(7) Restriction. No hearing may be initiated by an appropriate officer under this section in respect of an alleged contravention of the Code of Conduct by a member if the informal disciplinary action referred to in paragraph 41 (1) (g) has been taken against the member in respect of that contravention.
(8) Limitation period. No hearing may be initiated by an appropriate officer under this section in respect of an alleged contravention of the Code of Conduct by a member after the expiration of one year from the time the contravention and the identity of that member became known to the appropriate officer.
(9) Certificate. A certificate purporting to be signed by an appropriate officer as to the time an alleged contravention of the Code of Conduct by a member and the identity of that member became known to the appropriate officer is, in the absence of evidence to the contrary, proof of that time without proof of the signature or official character of the person purporting to have signed the certificate.
The law pertaining to the proper interpretation of the RCMP Act subsection 43(8) Limitation period (above), is set by the most recent decision of the Federal Court of Appeal of Thériault v. Canada (Royal Canadian Mounted Police) 2006, FCA 61.
The Thériault Decision:
In their examination of the subsection 43(8) Limitation period, the Federal Court of Appeal recognized “the purpose of introducing a limitation period into a disciplinary system is to provide some fairness in the treatment of offenders and to enable them to put forward a full and complete defence.” Further, by enacting subsection 43(8) into the RCMP Act, the FCA said, “…Parliament sought to determine a starting point reconciling the need to protect the public and the credibility of the institution with that of providing fair treatment for it’s members and persons involved in it.”
Exploring the facts an appropriate officer should know concerning subsection 43(8), the FCA found, “…for the one-year limitation to start running the appropriate officer must have knowledge of two facts: the contravention and the identity of it’s perpetrator.”
On the question of knowledge and degree of knowledge required by the RCMP Act subsection 43(8), the FCA determined that the one (1) year limitation period will begin to run when, “…the 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.” In essence, the FCA distinguished that the information required to trigger the Limitation period, must come from identifiable sources in circumstances that would tend to support its accuracy and reliability. Moreover, the court found that, to start the Limitation period the information obtained must amount to more than rumors, suspicions, and insinuations. “From that point, within the limitation period, an inquiry to check and confirm the credible and persuasive information received and now known regarding the contravention and its perpetrator can be carried out, if it is deemed necessary. Accordingly, for there to be knowledge of these facts for the purposes of a limitation period, there need not be evidence beyond all reasonable doubt or for its existence to have been confirmed by proof or verification.”
Equally important, the FCA also recognized, “…the knowledge referred to in subsection 43(8) is knowledge which relates to the position or function, not to its incumbent. It is institutional knowledge, not personalized or ad personam knowledge.” That is to say, knowledge acquired by an individual at a time before he or she assumes the duties of the Appropriate Officer, becomes knowledge of the Appropriate Officer at a point when that member subsequently assumes the duties of the Appropriate Officer, including if only, temporarily by way of an acting interim assignment.
Finally, with respect to the RCMP Act subsection 43(9) Certificate, the court said that the Appropriate Officer who signs the Certificate certifying the time knowledge of the contravention and the identity of its perpetrator occurred is not certifying the date on which he or she personally acquired knowledge of these two matters, but the date the knowledge of these two matters was attributable to the position or function of Appropriate Officer.
The Adjudication Board at my formal discipline hearing in October 2006, relied upon the Thériault decision in determining that the Appropriate Officer had breached RCMP Act subsection 43(8) by initiating the hearing against me beyond the one (1) year Limitation period. This is why the Adjudication Board ruled they did not have jursidiction to hear the matter, and thus dismissed the hearing and allegations.
In closing, my intent in writing this article was simply to provide you with some knowledge of the RCMP Act provisions relevant to formal discipline, and an understanding of the law surrounding the subsection 43(8) Limitation period. Armed with this knowledge, I look forward to dissecting and sharing with you in future posts, the shocking manner in which the RCMP wrongfully went about internally prosecuting me.
Justin P. Harris