Protected A

File 202233815

2024 CAD 02

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:

Superintendent Tyler Svendson

Level III Conduct Authority

(Conduct Authority)

and

Constable Cameron Lang

Regimental Number 66712

(Applicant)

Conduct Board Decision Motion on Timeliness Sara Novell, Conduct Board Chair Gina Lévesque, Conduct Board Louise Morel, Conduct Board May 29, 2024

Mr. Eric Blenkarn and Mr. Jon Hart, Conduct Authority Representatives

Mr. Gordon S. Campbell, Applicant’s Representative

INTRODUCTION

[1] Constable Cameron Lang (the Applicant) is currently facing three alleged contraventions of the RCMP Code of Conduct.

[2] On November 17, 2023, through his representative, the Applicant presented a motion to dismiss the allegations against him on the basis that the Conduct Authority initiated the conduct hearing process outside the 12-month time limitation period prescribed in subsection 41(2) of the Royal Canadian Mounted Police Act, RSC, 1985, c R-10 [RCMP Act].

[3] For the reasons to follow, the motion succeeds, and the allegations against the Applicant are hereby dismissed, as they are statute-barred.

BACKGROUND FACTS

[4] On May 11, 2021, Constable S.S. (the Complainant) reported to Inspector Darren Carr, his line officer and Level II Conduct Authority, that racist, sexist and harassing comments targeting him, other police officers and members of the public were being made by members of his Watch, in person as well as on the Mobile Data Terminal messaging system (MDT) and in a private group chat hosted on the Signal messaging application (the Signal Group Chat).

[5] On May 12, 2021, Chief Superintendent Michel Legault, the designated “E” Division Level III Conduct Authority at the time, became aware of the alleged behaviour.

[6] On May 14, 2021, Chief Superintendent Legault mandated a Code of Conduct investigation against Constables Philip Dick and Ian Solven and two other members of the Watch.

[7] On the same day, the Applicant met with Inspector Carr to self-report his participation in the Signal Group Chat.

[8] On May 20, 2021, the Complainant provided a statement to the conduct investigators detailing the inappropriate behaviour.

[9] On June 11, 2021, the conduct investigators presented an Interim Code of Conduct Investigation Report (Interim Report 1) to Inspector Carr.

[10] On June 16, 2021, Chief Superintendent Legault was provided a copy of Interim Report 1. As a result, on June 17, 2021, he mandated a Code of Conduct Investigation against Constable Mersad Mesbah.

[11] Between July 2021 and January 2022, the conduct investigators reviewed the MDT messages.

[12] On April 28, 2022, the conduct investigators executed a search warrant and extracted the Signal Group Chat messages from the Complainant’s phone.

[13] On May 13, 2022, the conduct investigators completed the review of the Signal Group Chat messages.

[14] On May 26, 2022, the new “E” Division Level III Conduct Authority, Chief Superintendent Steven Ing, was presented with Interim Report 2.

[15] On June 2, 2022, Chief Superintendent Ing issued a Conduct Investigation Mandate Letter, requesting an investigation into one allegation against the Applicant for having made racist or otherwise offensive remarks about members of the public, contrary to section 2.1 of the RCMP Code of Conduct.

[16] On September 21, 2022, the conduct investigators provided Chief Superintendent Ing with the Final Investigation Report on the Applicant’s conduct matter.

[17] On March 29, 2023, the Commanding Officer of “O” Division, Assistant Commissioner Jodie Boudreau, the new Conduct Authority for the Applicant, issued a Notice to the Designated Officer and initiated a conduct hearing into three allegations against the Applicant:

Allegation 1: On or between January 1, 2019, and May 15, 2021, at or near Coquitlam, in the Province of British Columbia, [the Applicant] failed to treat every person with respect and courtesy and did engage in workplace harassment, contrary to section 2.1 of the Code of Conduct of the Royal Canadian Mounted Police.

Allegation 2: On or between January 1, 2019, and May 15, 2021, at or near Coquitlam, in the Province of British Columbia, [the Applicant] behaved in a manner that is likely to discredit the Force contrary to section 7.1 of the Code of Conduct of the Royal Canadian Mounted Police.

Allegation 3: On or between January 1, 2019, and May 15, 2021, at or near Coquitlam, in the Province of British Columbia, [the Applicant] failed to use government issued property for only authorized purposes and activities contrary to section 4.6 of the Code of Conduct of the Royal Canadian Mounted Police.

[18] On April 18, 2023, Ms. Gina Lévesque was appointed as the Conduct Board to decide whether the Applicant had contravened the provisions of the Code of Conduct.

[19] On May 8, 2023, the Conduct Authority signed a Notice of Conduct Hearing, which contained the three aforementioned allegations. It was served on the Applicant, along with the supporting materials, on May 16, 2023.

[20] On May 31, 2023, having learned that the conduct matters of Constables Philip Dick, Ian Solven and Mersad Mesbah (the Subject Members) were before a different conduct board, the Applicant’s Representative requested a pre-hearing conference to discuss having the same conduct board hear all four conduct matters as they were similar in terms of disclosure, issues and locations.

[21] On July 7, 2023, a pre-hearing conference was held with the Applicant’s Representative and the Conduct Authority Representative, to discuss, among other things, the possibility of joining all four conduct matters and to have them heard together before the same conduct board.

[22] On July 18, 2023, the Applicant’s Representative provided Ms. Gina Lévesque with a Consent to Joint Proceeding from the Subject Members and the Applicant for their conduct matters to be heard together.

[23] On August 14, 2023, pursuant to subsection 43(1) of the RCMP Act, we were appointed as members of the Conduct Board responsible to determine whether the Subject Members and the Applicant have contravened provisions of the Code of Conduct.

[24] On September 25, 2023, we granted a motion for joinder of the Subject Members’ and Applicant’s conduct matters and ordered for their conduct proceedings to be heard together.

[25] On November 17, 2023, the Applicant’s Representative presented a motion to strike the allegations against the Applicant.

[26] The Conduct Authority Representatives submitted their response on December 12, 2023, and the Applicant’s reply was presented on December 20, 2023. Both Parties provided jurisprudence and documentary evidence in support of their respective submissions.

SUMMARY OF THE PARTIES’ ARGUMENTS

[27] The Applicant’s Representative seeks to have all of the allegations against the Applicant dismissed by virtue of subsection 41(2) of the RCMP Act. His position is that the Applicant’s line officer, Inspector Carr, became aware of the alleged inappropriate comments made by members of the Watch in the Signal Group Chat on May 11, 2021, when the Complainant reported the alleged discriminatory behaviour and comments. He also submits that Inspector Carr was further informed of the Applicant’s participation in the Signal Group Chat on May 14, 2021, when the Applicant self-reported his involvement in the chat. As for the MDT messages, the Applicant’s Representative asserts that the limitation period was triggered when the conduct investigators reviewed the MDT messages between January 2022 and March 2022.

[28] The Conduct Authority Representatives submit that the prescription period ended when the Interim Report 2 was provided to the Level III Conduct Authority on May 26, 2023. Since the Notice to the Designated Officer was submitted on March 30, 2023, they contend that the hearing was initiated within the prescription period. In addition, the Conduct Authority Representatives advance that even if the Conduct Board finds that the prescription period ended on May 13, 2023, when the Signal Group Chat messages were reviewed by the conduct investigators, the prescription period is still met.

REASONS FOR DECISION

[29] The limitation period to initiate a conduct hearing is triggered by the knowledge of the conduct authority that was responsible for initiating an investigation or investigated the alleged misconduct. Indeed, subsection 41(2) of the RCMP Act provides:

A hearing shall not be initiated by a conduct authority in respect of an alleged contravention of a provision of the Code of Conduct by a member after the expiry of one year from the time the contravention and the identity of that member as the one who is alleged to have committed the contravention became known to the conduct authority that investigated the contravention or caused it to be investigated.

[Emphasis added]

[30] Therefore, it is necessary to determine who was the conduct authority entrusted with the responsibility of initiating the Code of Conduct investigation into the Applicant’s behaviour and when that individual became aware that the Applicant allegedly contravened the Code of Conduct.

Who was the conduct authority?

[31] The Commissioner has the power to designate conduct authorities pursuant to subsection 2(3) of the RCMP Act. Furthermore, the Commissioner has exercised this authority in subsection 2(1) of the Commissioner’s Standing Orders (Conduct), SOR/2014-291, by designating the following individuals as conduct authorities in respect of a member who is under their command:

[…]

(a) members who are in command of a detachment and persons who report directly to an officer or to a person who holds an equivalent managerial position;

(b) officers, or persons who hold equivalent managerial positions; and

(c) officers who are in command of a Division.

[32] Accordingly, it is the responsibility of those different levels of conduct authorities in a subject member’s chain of command to investigate or cause allegations to be investigated to determine whether a subject member has contravened the Code of Conduct. This is recognized in Administration Manual, Chapter XII.1 “Conduct” (November 28, 2019, version), section 4.1.1, which deals with the evaluation of information alleging a Code of Conduct contravention:

4.1.1. When information is received that a member has allegedly contravened a provision of the Code of Conduct, the conduct authority at the level that is the most appropriate to the subject member must consider the information to determine the best means of addressing the situation, which may include referring it to the next level of conduct authority where it is clear, if established, the alleged contravention could not be adequately dealt with by the receiving level of conduct authority.

[Emphasis added]

[33] In the present case, the Complainant met with Inspector Carr to report the inappropriate behaviour that was allegedly taking place in person and online via the MDT and the Signal Group Chat. Three days later, the Applicant self-reported his involvement in the Signal Group Chat to Inspector Carr, who was his line officer. Therefore, pursuant to subsection 2(1) of the Commissioner’s Standing Orders (Conduct), SOR/2014-291, Inspector Carr was the Level II Conduct Authority in the Applicant’s chain of command.

[34] Inspector Carr’s notes reveal that, in the days following the Complainant’s initial reporting of the alleged behaviour, he considered the information available to him and decided to refer the matter to the Level III Conduct Authority.[1] It appears that, in referring the matter to the next level, Inspector Carr believed that if the reported misconduct was established, then it would be better addressed by the next designated level of conduct authority.

When did a conduct authority become aware of the Applicant’s identity and alleged contraventions?

[35] It is not necessarily the knowledge of the conduct authority who initiated the conduct hearing that will trigger the calculation of the limitation period in a specific case; rather it is the knowledge of the conduct authority in the member’s chain of command who initially received the information that a member has allegedly contravened the Code of Conduct. Indeed, subsection 40(1) of the RCMP Act provides:

40 (1) If it appears to a conduct authority in respect of a member that the member has contravened a provision of the Code of Conduct, the conduct authority shall make or cause to be made any investigation that the conduct authority considers necessary to enable the conduct authority to determine whether the member has contravened or is contravening the provision.

[Emphasis added]

[36] Consequently, it is necessary to establish when a conduct authority in respect of the Applicant obtained sufficient information to conclude that the Applicant had apparently contravened a provision of the Code of Conduct. This question will be examined first for the Signal Group Chat and then for the MDT.

Signal Group Chat

[37] Particular 4 of Allegation 1 and Allegation 2 of the Notice of Conduct Hearing relates to the posting of discourteous and/or discriminatory comments and a video in the Signal Group Chat.

[38] The Conduct Authority Representatives argue that the requisite knowledge of the alleged contraventions was only acquired on May 26, 2022, when the conduct investigators presented Interim Report 2 to the Level III Conduct Authority after the completion of the review of the MDT and the Signal Group Chat messages. They submit that “[i]t was only through investigating thousands of messages that the particulars became known to investigators to form the required knowledge to commence a Code of Conduct proceedings”.[2]

[39] We disagree. Subsection 40(1) of the RCMP Act is clear. An investigation shall be ordered when there is an appearance of a contravention of a provision of the Code of Conduct. This is a relatively low threshold. A conduct authority does not need to have all of the details of an alleged contravention to trigger the limitation period; they only need sufficient information to believe that there appears to be a contravention of the Code of Conduct. The very purpose of an investigation is to gather the relevant and necessary information that will allow the conduct authority to make an informed decision on whether a contravention of the Code of Conduct occurred on a balance of probabilities. The conduct authority’s decision on when or whether to mandate an investigation does in no way change the one-year limitation period to initiate a conduct hearing. This time limitation period starts when an alleged contravention and the identity of the member as the one who is alleged to have committed the contravention became known to the conduct authority who investigated the contravention or caused it to be investigated.

[40] It was not necessary for the conduct authorities in the Applicant’s chain of command to know exactly what the Applicant had posted in the Signal Group Chat in order to have the requisite knowledge of a potential misconduct. It was only required that they have “sufficient information to reasonably believe that there appears to have been a contravention of the Code of Conduct” in order to trigger the limitation period.[3]

[41] We find that Inspector Carr obtained sufficient information that the Applicant had apparently contravened the Code of Conduct in relation to the Signal Group Chat on May 14, 2021, when the Applicant self-reported his participation in the chat. Indeed, in his affidavit presented in support of the present motion, the Applicant explains:

[…]

I disclosed to Inspector Carr that I was a member of the “[redacted] group chat,” that I contributed what I believed to be offensive content, and that as a result I believed I may have contravened the RCMP Code of Conduct. I disclosed to the Inspector that some of the content contributed by other members was highly offensive and I thus wished to also act on my duty to report that to him. I said that I believed my contributions were not as offensive as what others had said, but that my contributions would “not look good.”[4]

[42] Pursuant to subsection 40(1) of the RCMP Act, following the Applicant’s self-reporting on May 14, 2021, Inspector Carr, as the Level II Conduct Authority to the Applicant, was required to mandate an investigation into the alleged misconduct to determine whether the Applicant had effectively contravened the Code of Conduct. But he failed to do so.

[43] The Conduct Authority Representatives provided a document titled “Decision Document”, dated October 17, 2023 in support of their submission, in which Inspector Carr explains the reasons for not ordering an investigation into the Applicant’s misconduct:

[…]

· On [May 11, 2021] [the Complainant] did not provide any specific allegations with respect to the actions of [the Applicant]; in fact, he characterized him as having had peripheral involvement only in the harassment and led me to believe that [the Applicant] was more of a victim.

· I was aware that there would be a considerable amount of work that would need to be done with respect to obtaining and reviewing a number of sources of information relative to messaging that had occurred.

· I was aware by [May 13, 2021] that codes were being ordered against [the Subject Members and two other members] and that there would be a level III conduct authority assigned.

· On [May 14, 2021] when I met with [the Applicant], I learned no new information from him, other than that he had experienced a hard time during his [Recruit Field Training], which furthered my belief at the time that he was potentially a witness at best and a reluctant participant at worst.

[…]

[44] Firstly, we agree with the Applicant’s Representative that this “Decision Document” should be given minimal weight. As advanced by the Applicant’s Representative, it is not an affidavit and constitutes an “ex post facto non-contemporaneous justification” document. Secondly, we fail to see how the reasons provided by Inspector Carr justify the decision not to investigate the Applicant’s actions when the Applicant self-reported that he had posted offensive content.

[45] It appears that the Applicant’s involvement was minimized from the onset despite the lack of evidence to support this position. Indeed, in his notes, Inspector Carr relates that the Applicant “had participated in the chat groups at a reduced level.”[5] In addition, it appears from the reasons enumerated in the “Decision Document” that the Applicant was initially considered a witness member.

[46] It is only once all of the messages were reviewed as part of the Code of Conduct investigations mandated against the Subject Members and following the completion of Interim Report 2 on May 26, 2022, that the Level III Conduct Authority realized the extent of the Applicant’s involvement as the “third most active participant [in] the chat, with 814 messages”[6] and mandated an investigation into his conduct on June 2, 2022. Even then, we note that the Conduct Investigation Mandate Letter only contains one allegation of having made racist or otherwise offensive remarks about members of the public, contrary to section 2.1 of the Code of Conduct. There was never an investigation ordered for the other allegations of having posted a discriminatory video in the Signal Group Chat or having misused the MDT.[7]

[47] The fact that the different levels of conduct authority in this case decided from the onset not to investigate the Applicant’s behaviour does not change the fact that the Level II was made aware on May 14, 2021, by the Applicant himself, that he had possibly contravened the Code of Conduct by posting inappropriate content in the Signal Group Chat. As a result, we are satisfied that, from that point, the conduct authorities had “sufficient information to warrant action”.[8]

[48] Therefore, we find that the limitation period for Allegations 1 as it relates to posts in the Signal Group Chat and for Allegation 2 began on May 14, 2021. Consequently, since the Notice to the Designated Officer was only signed on March 29, 2023, we find that the conduct hearing for those allegations was initiated outside of the one-year time-limitation period provided in subsection 41(2) of the RCMP Act.

MDT

[49] Particular 3 of Allegation 1 of the Notice of Conduct Hearing relates to the posting of discourteous and/or discriminatory comments in the MDT and Allegation3 relates to the misuse of the MDT when doing so.

[50] The Applicant specifies that, contrary to the comments posted in the Signal Group Chat, he did not self-report any misconduct in relation to the MDT. He explains:

[…]

I did not self-report any MDT chat messages as I had not heard they were a source of enquiry, and I did not believe at that time I had sent messages that would be concerning.

[…][9]

[51] Accordingly, the starting date of the limitation period for the MDT messages is different than the one for the Signal Group Chat. The Applicant’s Representative asserts that the limitation period was triggered “at the latest January 2022” when the conduct investigators completed their reviews of the MDT messages. We cannot agree with this position. Indeed, the Applicant’s Representative’s own reference to the Phillips decision contradicts this position:

[180] But, as already noted, under subsections 40(1) and 41(2) of the amended RCMP Act, it is the knowledge of the conduct authority that investigated or caused the alleged contravention to be investigated that triggers the one year limitation period […][10]

[Bold added]

[52] It is the conduct authority who requires the requisite knowledge to trigger the limitation period to initiate a conduct hearing, not the conduct investigators. Therefore, it is necessary to examine when a conduct authority in the Applicant’s chain of command became aware of his unprofessional comments in the MDT.

[53] On May 11, 2021, when the Complainant initially reported to Inspector Carr that inappropriate comments were being made in the Signal Group Chat, he also stated that similar unprofessional posts were being made in the MDT. The Applicant was mentioned at the time as one of the participants.

[54] On May 20, 2021, the Complainant provided a statement to the conduct investigators. On numerous occasions during his interview with the investigators, the Complainant mentioned that the same members involved in the Signal Group Chat were also making discourteous or discriminatory comments in the MDT.

[55] Following the Complainant’s statement, the conduct investigators prepared Interim Report 1 on June 11, 2021, which was provided to the Level II Conduct Authority, Inspector Carr, that same day and to the Level III Conduct Authority on June 16, 2021.[11] In this report, the investigators indicate that the inappropriate behaviour was taking place “in person, on the MDT’s messaging system, and in a third-party chat group”.[12] The investigators conclude their report with the following:

[…]

Please also note that, though it is not detailed above, the “chat group” had twelve participants. This included [the Complainant], the four Subject Members, Constable Mesbah, and six other constables (who are current or former members from the [redacted] zone). The Subject Member Constables and Constable Mesbah were administrators of the group. If [the Complainant]’s statement is accurate, then six other members may have some culpability for failing to report plainly racist or sexist content from that chat. This will likely require consideration once the content of the chat is reviewed.

[…] [Emphasis added]

[56] Interestingly, we note that the Conduct Authority Representatives do not reference this report in their response to the present motion. Furthermore, they only indicate that the Level III Conduct Authority became aware of the Applicant’s alleged misconduct on May 26, 2022, when Interim Report 2 was provided to him.

[57] For the purpose of determining the limitation period under subsection 41(2) of the RCMP Act, the question is whether a reasonable person would find that there was sufficient information to believe that there appeared to be a contravention of the Code of Conduct.[13] We are satisfied that the reasonable person test regarding the MDT messages was met on June 11, 2021, when the Level II Conduct Authority was provided a copy of Interim Report 1.

[58] We find that, when combined with the Applicant’s self-reported participation in the Signal Group Chat and the Complainant’s initial reporting of the misconduct, Interim Report 1 provided the conduct authorities with ample information to conclude that the Applicant, in addition to having posted inappropriate content in the Signal Group Chat, had apparently also made inappropriate comments in the MDT. Indeed, the conduct investigators clearly identified that members of the Watch, other than the ones being investigated, were also participating in the Signal Group Chat and the Complainant maintained that derogatory comments were also being made in the MDT by the same individuals that were posting derogatory messages in the Signal Group Chat. We are satisfied that the Level II Conduct Authority had sufficient information from that point to warrant the initiation of an investigation to determine whether the Applicant had actually posted inappropriate content in the MDT.

[59] Therefore, we find that the limitation period for Allegation 1 as it relates to the MDT and for Allegation 3 began on June 11, 2021. Since the Notice to the Designated Officer was only signed on March 29, 2023, we conclude that the conduct hearing process was initiated outside of the one-year time limitation period provided in subsection 41(2) of the RCMP Act.

[60] The onus was on the Conduct Authority to establish that the limitation period was met in this case. We find that the Conduct Authority did not meet this burden.

CONCLUSION

[61] For these reasons, the Applicant’s motion is granted.

[62] We find that the Applicant has established on a balance of probabilities that the one-year limitation period to initiate the conduct hearing, as prescribed in subsection 41(2) of the RCMP Act, was not met.

[63] Consequently, the three allegations against the Applicant contained in the Notice of Conduct Hearing are statute-barred from proceeding.

[64] Pursuant to subsection 25(2) of the Commissioner’s Standing Orders (Conduct), SOR/2014-291, this decision takes effect as soon as a copy is served on the Applicant.

[65] This decision constitutes the Conduct Board’s final decision and concludes the conduct proceeding against the Applicant.

[66] The Parties are reminded that section 45.11 of the RCMP Act sets out the provisions to appeal this decision. Furthermore, the rules governing such an appeal are contained in the Commissioner’s Standing Orders (Grievances and Appeals), SOR/2014-289.

		March 26, 2024
Sara Novell Conduct Board Chair		Date

 

		March 26, 2024
Gina Lévesque Conduct Board		Date

 

		March 26, 2024
Louise Morel Conduct Board		Date