Off duty conduct must be carefully assessed before concluding it warrants disciplinary action

Administrative law – Decisions reviewed – Royal Canadian Mounted Police – Judicial review – Procedural requirements and fairness – Standard of review – Reasonableness – Police – Professional misconduct or conduct unbecoming – Disciplinary proceedings

Laporte v. Canada (Attorney General), [2021] F.C.J. No. 120, 2021 FC 118, Federal Court, February 5, 2021, R.F. Southcott J.

The Applicant, Mr. Daniel Laporte, was a Constable with the Royal Canadian Mounted Police (“RCMP”) represented by the Respondent, Canada (Attorney General).

The Applicant attended a private birthday party for an RCMP colleague in August 2016.  At that time, he had been with the force for 13 years.  The party was at the colleague’s private residence.  Several of the Applicant’s RCMP colleagues attended, as well as some civilians.  Most of the guests were drinking alcohol.  The Applicant was not in his RCMP uniform at the party and neither were any of his colleagues.

Some of the Applicant’s colleagues were joking that they would take off their clothes at some point.  Later in the evening, the Applicant took off his clothes in the kitchen and covered his genitals with a dishwashing brush.  He remained nude for approximately five minutes.  The Applicant then realized there was no more ice in the freezer.  He found a towel, wrapped it around his hips and walked to his home, approximately 150 metres away, to get some ice and he walked back.  He did not see anyone, and his genitals and buttocks were covered for the entire walk.  When he returned, he changed back into his clothes and remained fully dressed for the rest of the evening.

In February 2017, one of the RCMP members (who had been a guest at the party) mentioned the events to someone else who had not attended the party.  This person then relayed the information to the officer-in-charge of that unit, Inspector Dubois.  Inspector Dubois then launched an administrative investigation.

In April 2017, another inspector for the unit, Inspector Leclerc, prepared a memorandum.  His opinion was that there was a potential contravention of the Code of Conduct but an investigation was not necessary relating to the events at this private party.  He recommended that the Applicant meet with Inspector Dubois to discuss the potential impact of his conduct.  Inspector Dubois endorsed the memorandum.

A few months later, in November 2017, Inspector Dubois initiated a Code of Conduct investigation.  A new Inspector was assigned to the investigation and competed a report in January 2018.

In February 2018, the Applicant participated in a Conduct Authority Meeting.  The Conduct Authority concluded the Applicant’s conduct (undressing in a private residence while under the influence of alcohol and in the sight of guests) had breached section 7.1 of the Code of Conduct by behaving in a manner likely to discredit the RCMP (the “Initial Decision”).

In April 2018, the Applicant submitted an appeal of the Initial Decision to the RCMP Commissioner’s Conduct Appeal Authority.  He argued the Initial Decision resulted from a breach of procedural fairness, was based on an error of law, and was unreasonable.

In March 2020, the Conduct Adjudicator issued a decision dismissing the Applicant’s appeal (the “Appeal Decision”).  The Conduct Adjudicator found the appropriate legal test was used, the Applicant’s behaviour at the party was effectively linked to his duties and functions as an RCMP member, and the Initial Decision was reasonable.

The Applicant applied to the Federal Court seeking judicial review of the Appeal Decision.

The Court first considered whether the Initial Decision had adequately addressed the third element of the legal test for a breach of section 7.1 of the Code.  That element asks, “would a reasonable person in society, informed of all the pertinent circumstances, and understanding the realities of police work in general and of the RCMP in particular, be of the opinion that the conduct of the member casts discredit on the RCMP”.

The Applicant argued that the Initial Decision did not include any analysis or reasoning in respect of how this third element was met in his case.  The Court agreed with the Applicant that the reasoning in the Initial Decision jumped from considering the first and second elements to the conclusion that there was a breach of section 7.1.

The Court held the Appeal Decision did not contain any justification for its conclusion that the Conduct Authority applied the third element of the test.  In the absence of any reasoning in the Initial Decision that could support this conclusion, the Appeal Decision itself must be held to be unreasonable.

The Applicant also argued the Initial Decision did not contain any reasoning about how the fourth element of the test was met in his case.  The fourth element was, “the conduct is sufficiently linked to the duties and functions of the member to give the RCMP a legitimate interest in disciplining the member”.  The Court again agreed with the Applicant.  The Initial Decision and the Appeal Decision did not include any analysis of how the fourth element may be met.  The Court held the decision was unreasonable.

The Court declined to address the Applicant’s third argument relating to the weight given to Inspector Dubois’ recommendation in the original memorandum.

The Applicant sought an order setting aside the decision of the Conduct Adjudicator.  The Applicant also sought an order directing his appeal to be allowed and for the removal of the reprimand from his RCMP record.  In the alternative, he sought an order that the appeal be remitted for redetermination.

The Respondent argued that the usual remedy was appropriate; namely, to quash the decision and return it to the decision-maker for reconsideration.  The Court agreed because the Court was not satisfied that the result was inevitable on such a reconsideration.  The Court directed the Appeal Decision to be set aside and the matter remitted to a different decision-maker for redetermination.

The Court awarded costs in a lump sum amount to the Applicant.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Scott Marcinkow at [email protected].

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