Protected A

2020 CAD 24

ROYAL CANADIAN MOUNTED POLICE

IN THE MATTER OF

a conduct hearing pursuant to the

Royal Canadian Mounted Police Act, RSC, 1985, c R-10

Between:

Designated Conduct Authority, “E” Division

(Conduct Authority)

and

Corporal Arvind Dongriah

Regimental Number 52392

(Subject Member)

Conduct Board Decision Christine Sakiris November 12, 2020

Mr. Jordan Levis-Leduc, Conduct Authority Representative

Ms. Anita Atwal, Subject Member Representative

TABLE OF CONTENTS

SUMMARY 3

INTRODUCTION 3

ALLEGATIONS 5

Decision on the Allegations 9

Allegation 1 9

Allegation 4 10

CONDUCT MEASURES 12

Range of possible conduct measures 14

Allegation 1 14

Allegation 4 15

Mitigating and aggravating factors 15

Decision on conduct measures 16

CONCLUSION 17

 

SUMMARY

The original Notice of Conduct Hearing, dated November 20, 2019, contained four allegations of contraventions of the RCMP Code of Conduct, which arose out of Corporal Dongriah’s actions in an investigation file. Prior to the conduct hearing, the parties submitted an Agreed Statement of Facts and a Joint Proposal on Conduct Measures. These were accepted by the Conduct Board. Allegations 2 and 3 were accordingly withdrawn by the Conduct Authority Representative. Allegations 1 and 4 were established, as amended.

The following conduct measures were imposed: (1) a financial penalty of 10 days’ pay, to be deducted from Corporal Dongriah’s pay; (2) the forfeiture of 10 days’ annual leave; and (3) a transfer to another work location.

INTRODUCTION

[1] On or about September 28, 2018, Corporal Dongriah was the senior member responding to a call from the Director of Rooms at a hotel, who reported that housekeeping staff had discovered items in a hotel room believed to be related to the sale and/or production of illegal controlled substances. These conduct proceedings arise out of Corporal Dongriah’s actions in the course of that investigation and in the days that followed.

[2] On September 6, 2019, the Designated Conduct Authority signed a Notice to the Designated Officer requesting the initiation of a conduct hearing in relation to this matter. On September 10, 2019, I was appointed as the Conduct Board pursuant to subsection 43(1) of the Royal Canadian Mounted Police Act, RSC, 1985, c R-10 [RCMP Act].

[3] The original Notice of Conduct Hearing, dated November 20, 2019, contained four allegations of contraventions of the RCMP Code of Conduct. Allegation 1 alleged that Corporal Dongriah conducted an improper search of the hotel room, contrary to section 3.1 of the Code of Conduct. Allegation 2 alleged that Corporal Dongriah failed to provide complete, accurate and timely accounts of his actions during the search of the hotel room, contrary to section 8.1 of the Code of Conduct. Allegation 3 alleged that, in overseeing the writing of the Information to Obtain (a Warrant to Search) in support of the investigation by a junior member, Corporal Dongriah failed to be diligent in the performance of his duties and the carrying out of his responsibilities, contrary to section 4.2 of the Code of Conduct. Allegation 4 alleged that Corporal Dongriah failed to carry out a lawful order and direction, contrary to section 3.3 of the Code of Conduct. The Notice of Conduct Hearing and the investigation materials were served on Corporal Dongriah on December 5, 2019.

[4] On January 17, 2020, Corporal Dongriah submitted his response pursuant to subsection 15(3) of the Commissioner’s Standing Orders (Conduct), SOR/2014-291 [CSO (Conduct)]. He denied all four allegations.

[5] On February 17, 2020, the Conduct Authority Representative submitted an Application to Admit Similar Fact Evidence (the Application). There was some delay in receiving Corporal Dongriah’s response to the Application due to a change in counsel. The Subject Member Representative submitted Corporal Dongriah’s response to the Application on April 10, 2020. The Conduct Authority Representative’s rebuttal was received on April 21, 2020. For the reasons set out in my written decision of May 15, 2020, the Application was denied.

[6] Shortly thereafter, the parties advised of their intent to seek a resolution. The parties jointly submitted an Agreed Statement of Facts and a Joint Proposal on Conduct Measures on July 23, 2020. Their submissions were supported by documentary evidence as well as jurisprudence. The parties proposed the amendment of Allegations 1 and 4 in accordance with the Agreed Statement of Facts and the withdrawal of Allegations 2 and 3 by the Conduct Authority Representative. The following conduct measures were proposed: (1) a transfer to another work location; (2) a forfeiture of 10 days of pay (80 hours); and a forfeiture of 10 days of annual leave (80 hours).

[7] On September 11, 2020, after receiving responses to my clarification question, I advised the parties that I would proceed to a written decision based on the record.

[8] For the reasons that follow, I accept the parties’ Agreed Statement of Facts and Joint Proposal on Conduct Measures. Allegations 1 and 4 are established, as amended. Allegations 2 and 3 are withdrawn. The conduct measures, as proposed, are imposed.

ALLEGATIONS

[9] The Agreed Statement of Facts provides the amended wording for Allegations 1 and 4, as follows: [1]

Allegation 1

On or between September 27, 2018, and September 28, 2018, at or near [location redacted], in the Province of British Columbia, Corporal Arvind Dongriah failed to be diligent in the performance of his duties and the carrying out of his responsibilities, contrary to section 4.2 of the Code of Conduct of the Royal Canadian Mounted Police.

Particulars of Allegation 1:

1. At all material times, [Corporal Dongriah was] a regular member of the Royal Canadian Mounted Police posted at […] in “E” Division, in the Province of British Columbia.

2. On September 27, 2018, at approximately [4 p.m.], [F.W.], the Director of Rooms at the [hotel], called […] RCMP to report that hotel housekeeping staff discovered items in room #1109 that were believed to be related to the sale and/or production of illegal controlled substances. The room was registered to [D.C.] A total of 9 pictures were taken in room #1109 by the Housekeeping Manager, [A.G.], and sent to […] RCMP.

3. [Corporal Dongriah] and Constable [T.W.] were dispatched to the call at approximately [7:18 p.m.]. [Corporal Dongriah] assigned Constable [T.W.] as the lead investigator. [Corporal Dongriah was] the senior officer on the file.

4. [Corporal Dongriah] querried [D.C.] on PRIME. [Corporal Dongriah’s] search revealed that [D.C.] had a criminal record, which included multiple criminal convictions relating to both possessing and trafficking prohibited substances contrary to the Controlled Drugs and Substances Act (“CDSA”)

5. [Corporal Dongriah] reviewed the photographs taken by [A.G.]. [Corporal Dongriah’s] electronic police report entitled “POLICE STATEMENT – 2” ([the] “electronic police report”) describes the photographs as follows:

Picture 1 – was of the room number – 1109

Picture 2 – was of an stack of currency ($20, $10, $5)

Picture 3 – was of a blender with white powder (Consistent with production of Crack Cocaine as a blender is used to mix Cocaine with a cutting agent),

Picture 4 – was of a hot plate and residue splatter was visible on the plate and table,

Picture 5 – was of six (6) cell phones,

Picture 6 – was of a crack pipe,

Picture 7 – drug paraphernalia on the ground,

Picture 8 – was of powder cocaine on a table,

Picture 9 – was of powder cocaine on a table

[Sic throughout]

6. At approximately [9 p.m.], [Corporal Dongriah] held a briefing with Constable [T.W.], Constable [J.L.] and Constable [E.W.] during which police entry to room #1109 was discussed.

7. [Corporal Dongriah] was experienced in drug related investigations and advised Constable [T.W.] of the same. Constable [T.W.] had minimal experience with drug investigation.

8. At approximately [9:23 p.m.], [Corporal Dongriah] attended the hotel. At approximately [9:26 p.m.], [Corporal Dongriah] entered room #1109 along with Constable [T.W.], Constable [J.L.], and Constable [E.W.]. The room was unoccupied.

9. Following your entry to room #1109, [Corporal Dongriah] noticed drug paraphernalia in plain view.

10. The contents and odours of room #1109 led [Corporal Dongriah] to suspect that [he] may have discovered a clandestine laboratory.

11. Due to public safety concerns, [Corporal Dongriah] chose to open cabinet doors as well as a small fridge located inside that cabinet of hotel room #1109.

12. [Corporal Dongriah] located two bags of white powder inside the hotel fridge.

13. [Corporal Dongriah] did not obtain a CDSA warrant prior to opening cabinet doors and searching the fridge and by doing so [he] failed to be diligent in the performance of [his] duties and the carrying out of [his] responsibilities.

14. [Corporal Dongriah] further failed to be diligent in performance of [his] duties and the carrying out of [his] responsibilities by neglecting to follow proper strict guidelines and procedure relating to the discovery and search of clandestine laboratories as established in RCMP Policy. As stated in [Operational Manual] – ch. 6.13. Clandestine Drug Laboratories, clandestine laboratories are known to be toxic, potentially dangerous to life and to contain improvised explosive devices and booby traps.

15. Upon completion of the initial search, [Corporal Dongriah] returned to the detachment. Constable [T.W.] began drafting an Information to Obtain (“ITO”) to acquire a CDSA warrant to search the hotel room.

16. Constable [T.W.] had minimal experience drafting ITOs. [Corporal Dongriah] agreed to assist him in and gathered precedent ITOs from other members/units. [Corporal Dongriah] instructed Constable [T.W.] to send [him] drafts via email of his ITO as he progressed so that [Corporal Dongriah] could review his drafts and recommend changes.

17. Constable [T.W.] sent [Corporal Dongriah] approximately 9 different draft versions of his ITO.

18. None of Constable [T.W.]’s draft ITOs indicated the fact that [Corporal Dongriah] had searched a fridge located in a cabinet of room #1109 and had located two bags containing white powder.

19. [Corporal Dongriah] failed to be diligent in the performance of [his] duties and the carrying out of [his] responsibilities by failing to advise Constable [T.W.] to amend his ITO as to indicate [Corporal Dongriah]’s search of the fridge and that [Corporal Dongriah] had discovered two bags of white powder.

Allegation 4

On or about October 10, 2018, at or near […], in the Province of British Columbia, Corporal Arvind Dongriah failed to carry out a lawful order and direction, contrary to section 3.3 of the Code of Conduct of the Royal Canadian Mounted Police.

Particulars of Allegation 4:

1. At all material times, [Corporal Dongriah was] a regular member of the Royal Canadian Mounted Police posted at […] in “E” Division, in the Province of British Columbia.

2. Following [Corporal Dongriah]’s involvement in PRIME file 2018-144803, a Code of Conduct investigation was ordered to investigate your alleged contravention(s) of the Code of Conduct of the RCMP.

3. In the morning of October 10, 2018, Inspector [K.B.] served [Corporal Dongriah] with the “Conduct Investigation Mandate Letter” (“the Mandate Letter”). Inspector [K.B.] signed the Affidavit of Service and sent it to the “E” Division Professional Responsibility Unit at approximately [3:44 p.m.].

4. The Mandate Letter contained the following order: “You must not discuss this matter or the events or allegations subject to this conduct process with any witness(es) or complainant(s)”.

5. Constable [T.W.] was a named person in Allegation 2 of the Mandate Letter.

6. On October 10, 2018, at approximately [5 p.m.], [Corporal Dongriah] violated the order contained within the Mandate Letter by contacting Constable [T.W.] via phone and discussing the fact that [Corporal Dongriah] was the subject of a Code of Conduct Investigation with Constable [T.W.].

7. There was no operational necessity for [Corporal Dongriah] to contact Constable [T.W.] on October 10, 2018.

8. [Corporal Dongriah] therefore failed to carry out a lawful order/direction.

[Sic throughout]

[10] The Agreed Statement of Facts was signed by Corporal Dongriah. He has accordingly admitted to Allegations 1 and 4, and their particulars, as amended.

Decision on the Allegations

Allegation 1

[11] Section 4.2 of the Code of Conduct provides that:

Members are diligent in the performance of their duties and the carrying out of their responsibilities, including taking appropriate action to aid any person who is exposed to potential, imminent or actual danger.

[12] In order for this Allegation to be established, the Conduct Authority must prove on a balance of probabilities that Corporal Dongriah knew he had a duty to discharge, or a responsibility to carry out, and that he willingly or neglectfully failed to discharge that duty. Allegation 1, as amended, sets out three instances in which Corporal Dongriah is alleged to have contravened section 4.2 of the Code of Conduct. By virtue of Corporal Dongriah’s admissions, the following facts are established.

[13] First, it is established that Corporal Dongriah knew that he had a duty to secure a CDSA warrant to search room 1109 before he could open any cabinets in the hotel room. Notwithstanding this knowledge, he proceeded to open cabinets in the hotel room as well as the fridge without securing the necessary warrant.

[14] Second, it is established that Corporal Dongriah was an experienced drug investigator and was aware of RCMP policy. He knew he had a duty to follow well-established guidelines and procedures relating to the search of clandestine drug laboratories, as set out in RCMP policy. These guidelines and procedures are in place to mitigate the risk of investigations of clandestine drug laboratories, which are known to be toxic, potentially dangerous to life and to contain improvised explosive devices and booby traps. [2] Yet, Corporal Dongriah failed to follow these procedures in the course of executing a search of room 1109.

[15] Third, it is established that, as a senior member, Corporal Dongriah offered to review Constable T.W.’s draft ITO. Constable T.W. was ultimately responsible for the content of the ITO. However, in offering to review the draft ITO, Corporal Dongriah had a duty to undertake a thorough review of the document and to provide Constable T.W. with guidance in order to ensure that the ITO adhered to the proper format and was accurate. Corporal Dongriah reviewed approximately 9 drafts of the ITO. None of these drafts indicated that Corporal Dongriah had searched a fridge located in a cabinet of room 1109, in which he located two bags of white powder. Having reviewed 9 drafts of the ITO, Corporal Dongriah could and should have noted this omission. In failing to advise Constable T.W. to amend his ITO to reflect the search of the fridge, Corporal Dongriah failed to be diligent in the performance of his duties and the carrying out of his responsibilities.

[16] For each of these instances, Corporal Dongriah was aware of a specific duty he was required to discharge or of a responsibility he was to carry out. Yet, he failed to do so. The parties acknowledge that his actions do not constitute a performance issue. I agree. Corporal Dongriah was an experienced member. He had the necessary experience and specialized training to understand and to effectively discharge the duties or carry out the responsibilities at issue. Therefore, I find that Corporal Dongriah willingly or neglectfully failed to discharge his duties or to carry out his responsibilities in each of the three aforementioned instances. Allegation 1, as amended, is accordingly established.

Allegation 4

[17] Section 3.3 of the Code of Conduct provides that: “Members give and carry out lawful orders and directions”.

[18] In order for this Allegation to be established, the Conduct Authority must prove on a balance of probabilities the following three elements:

1. A person superior in rank or having authority over Corporal Dongriah gave a clear order or direction.

2. The order or direction was lawful.

3. Corporal Dongriah failed to comply with the order or direction without lawful excuse.

[19] Once again, by virtue of Corporal Dongriah’s admissions, the following facts are established. Corporal Dongriah’s actions in the search of room 1109 and the ensuing investigation were the subject of a Code of Conduct investigation. On October 10, 2018, Inspector K.B. duly prepared and signed the Mandate Letter, which included the following order: “You must not discuss this matter or the events or allegations subject to this conduct process with any witness(es) or complaint(s)” (the Order). Inspector K.B. personally served Corporal Dongriah with the Mandate Letter on October 10, 2018. Later that day, Corporal Dongriah contacted Constable T.W. by phone and discussed the fact that he was the subject of a Code of Conduct investigation with Constable T.W.

[20] The Order was lawfully issued by Inspector K.B. in his capacity as a conduct authority in the initiation of a Code of Conduct investigation pursuant to subsection 41(1) of the RCMP Act. The Order was required to protect the integrity of the investigation as there were multiple members involved.

[21] Constable T.W. was a named person in Allegation 2 of the Mandate Letter. Corporal Dongriah would accordingly have known that Constable T.W. would be approached as a witness in the Code of Conduct investigation. Yet, within a few hours of being personally served with the Mandate Letter, Constable Dongriah chose to call Constable T.W. and discuss the fact that he was the subject of that Code of Conduct investigation.

[22] Corporal Dongriah was issued a lawful order by a person superior in rank and having authority over him. He failed to comply with that Order without lawful excuse. Allegation 4, as amended, is accordingly established.

CONDUCT MEASURES

[23] Having found that Allegations 1 and 4, as amended, are established, I am required, in accordance with subsection 45(4) of the RCMP Act and the RCMP Conduct Measures Guide, to impose “a fair and just measure that is commensurate to the gravity of the contravention, the degree of blameworthiness of the member, and the presence of mitigating and aggravating factors”. Pursuant to paragraph 36.2(e) of the RCMP Act, conduct measures must be “proportionate to the nature and circumstances of the contravention of the Code of Conduct, and where appropriate, […] are educative and remedial rather than punitive”.

[24] The Conduct Authority Representative and the Subject Member Representative provided a written joint submission on conduct measures, with supporting documentation and jurisprudence. They proposed the following global conduct measures:

a. a transfer to another work location

b. a financial penalty of 10 days (80 hours) to be deducted from Corporal Dongriah’s pay; and

c. a forfeiture of 10 days (80 hours) of annual leave.

[25] When presented with a joint submission on conduct measures, there are very narrow circumstances in which a conduct board may refuse to accept the proposed conduct measures.

[26] The Supreme Court of Canada has recognized the value of settlement discussions, as well as the strong policy reasons that favour the promotion of certainty to the parties when a settlement is reached. ^[3] Generally speaking, courts or administrative tribunals will not override a settlement reached by the parties unless doing so would be against the public interest.

[27] Therefore, I must determine whether accepting the joint proposal on conduct measures would be against the public interest. This is not a question of whether the conduct measures proposed are the same as what I would impose. Rather, the public interest test sets a much higher threshold.

[28] In its Cook decision, the Supreme Court of Canada provided the following guidance, which is applicable to administrative tribunals:

[…] a joint submission should not be rejected lightly […] Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of [,in this case, the conduct process] had broken down. ^[4]

[29] In order to determine whether the proposed conduct measures are against the public interest, it is helpful to have some sense of what the possible measures may be. The Conduct Measures Guide is a useful reference in this regard. However, it is important to note that the Conduct Measures Guide is just that, a guide. It is not meant to be prescriptive.

[30] As a starting point, I find that global measures are appropriate in this case. Both Allegations involve Corporal Dongriah’s actions in a single investigation file and they occurred within a 10‑day period.

Range of possible conduct measures

Allegation 1

[31] Section 4.2 of the Code of Conduct contemplates a range of behaviours. I agree with the parties that Corporal Dongriah’s actions are aligned to those described as a failure to properly investigate a complaint. The Conduct Measures Guide [5] provides for a general range from remedial measures to a forfeiture of 30 days of pay.

[32] The parties note the three instances of misconduct particularized in Allegation 1, as amended. They submit that these instances, collectively, reflect a behaviour that falls in the “normal” range of measures: a financial penalty of 2 to 8 days of pay. In support of their submission, the parties have provided the case of Commanding Officer, “K” Division and Constable Tyler Cull, 2018 RCAD 7 [Cull], which provides some guidance as to the seriousness of Corporal Dongriah’s misconduct.

[33] In Cull, the subject member faced several allegations. One allegation related to multiple acts or omissions constituting a contravention of section 4.2 of the Code of Conduct. The conduct board imposed a financial penalty of 50 days of pay with respect to that allegation. As noted by the parties, the specific acts or omissions constituting the misconduct in Cull were more egregious than that of Corporal Dongriah. I also note that the misconduct in Cull involved eight separate investigation files. In this case, a single investigation file is implicated.

[34] The mitigated range is typically appropriate in instances of isolated misconduct. This is not the case here as three instances of misconduct are particularized. The aggravated range is not applicable in this case, as it typically involves contemptuous behaviour that compromises court proceedings or causes injury to the victim. These factors are not clearly present in this case. Therefore, upon review of all of the materials, I find that the misconduct in question appropriately falls within the normal range.

Allegation 4

[35] The Conduct Measures Guide [6] provides that conduct measures for a breach of section 3.3 of the Code of Conduct range from remedial measures to dismissal. The parties submit that as the Order was provided in writing and served upon Corporal Dongriah as part of the Code of Conduct investigation, conduct measures within the normal range, which represent a financial penalty of 2 to 10 days of pay, are appropriate.

[36] In support of their position, the parties cite Commanding Officer, “E” Division and Constable Ashley Goodyer, 2018 RCAD 13 [Goodyer]. In that case, the subject member faced a total of five allegations. Among other conduct measures imposed, the conduct board imposed a forfeiture of 20 days of pay for the contravention of section 3.3 of the Code of Conduct. Again, the misconduct at issue in Goodyer was more egregious than the one in this case. In particular, the allegation reflected a failure to follow a lawful order or direction on two occasions. In this case, a single instance is at issue.

[37] In light of the foregoing, I find that the appropriate range of a global sanction is a financial penalty of between 2 and 20 days of pay, alone or in combination with other measures. That said I must now consider the mitigating and aggravating factors.

Mitigating and aggravating factors

[38] The parties jointly propose two mitigating factors, which I have retained.

[39] First, Corporal Dongriah’s admissions have avoided the need for a contested hearing.

[40] Second, Corporal Dongriah has received several positive forms 1004 – Performance Log or letters expressing appreciation for his work. The parties provided seven letters, dating from 2006 to 2013. The authors of these letters were members of the public as well as officials from partner organizations. The parties also provided 13 positive forms 1004, dating from 2006 to 2017.

[41] The parties jointly propose three aggravating factors, which I have also retained.

[42] First, as an experienced corporal of the RCMP, Corporal Dongriah knew or ought to have known that his actions, as set out in Allegations 1 and 4, as amended, were unacceptable.

[43] Second, Corporal Dongriah was the senior member on the investigation file at issue. Junior members relied on him for guidance both during the search of the hotel room and while drafting the ITO. Corporal Dongriah did not lead by example. His actions failed to live up to the standards expected of all members.

[44] Third, Corporal Dongriah has prior discipline, which is both recent and related to the allegations at issue. One of the previously established allegations relates to a contravention of section 4.2 of the Code of Conduct. Once again, Corporal Dongriah was a senior member and did not demonstrate sound practice. I am also troubled by the fact that this prior discipline arose within approximately two years of the incident that gives rise to the present Allegations. Therefore, Corporal Dongriah’s actions in this matter cannot be characterized as an isolated incident.

Decision on conduct measures

[45] The conduct measures proposed fall on the lower end of the acceptable range. While the total number of days of financial penalty is 20 days, it is split between a direct forfeiture of pay and a forfeiture of annual leave. This reduces the specific and general deterrent effect of the measures in two ways. First, a forfeiture of leave carries with it a limited impact, as members continue to collect their leave entitlements while suspended with pay. Second, splitting the penalty brings the measures under the corrective range of section 4 of the CSO (Conduct) instead of the serious range under section 5 of the CSO (Conduct).

[46] That said, on a balance of all of the factors before me, I cannot conclude that the proposed conduct measures are against the public interest. Collectively, they are comprised of corrective and serious measures. They reflect the mitigating and aggravating factors of this case. They will serve as a deterrent to Corporal Dongriah as well as a warning to other members.

CONCLUSION

[47] Having found Allegations 1 and 4 established, as amended, and in accordance with the joint submission presented by the Conduct Authority Representative and the Subject Member Representative, the following conduct measures are imposed:

a. pursuant to paragraph 4(d) of the CSO (Conduct), a financial penalty of 10 days (80 hours) of pay to be deducted from Corporal Dongriah’s pay;

b. pursuant to paragraph 4(e) of the CSO (Conduct), a forfeiture of 10 days (80 hours) of annual leave; and

c. pursuant to paragraph 5(1)(g) of the CSO (Conduct), a transfer to another work location.

[48] Corporal Dongriah is being permitted to continue his career with the RCMP. However, any future contravention of the Code of Conduct will be seriously reviewed by the appropriate conduct authority and could lead to his dismissal from the Force.

[49] Any interim measures in place should be resolved, in a timely fashion, in accordance with section 23 of the Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281.

[50] Either party may appeal this decision by filing a statement of appeal with the Commissioner in accordance with subsection 45.11 of the RCMP Act.

		November 12, 2020
Christine Sakiris RCMP Conduct Board		Date