Communiqué
July-September 2008
In this issue:
Message from the Chair
I am pleased to announce the appointment of David Paradiso as the new
Executive Director and Senior Counsel at the Committee. Mr. Paradiso obtained
his Law degree from the University of Western Ontario and has been a member of
the Law Society of Upper Canada since his call to the bar in 1992. He also holds
an undergraduate degree in Political Science from York University. Since his
articles with the Office of the Ombudsman of Ontario, Mr. Paradiso has been
employed by a number of other oversight agencies including the Office of the
Ombudsman at Canada Post Corporation, the Commission for Public Complaints
Against the RCMP and the Office of the Correctional Investigator. In his last
position as Director of Investigations, Mr. Paradiso was responsible for the
Office's investigative process, its principal operational program.
Welcome David!
Catherine Ebbs
Chair, RCMP External Review Committee
On September 24, 2008, the Committee commemorated its 20th anniversary. The
afternoon reception was attended by many who have participated in the ERC
process over the years, including former Chairs and sitting Staff Relations
Representatives. Speakers included the Associate Deputy Minister, the
Commissioner of the RCMP and the National Executive of the SRR Program. The
Chair delivered the address below to the gathering. This speech will be added to
a section devoted to the celebration on the Committee's Website at http://www.erc-cee.gc.ca/.
Reception Speech by Catherine Ebbs
Chair, RCMP External Review Committee
September 24, 2008
Hello everyone and welcome!
First, I would like to thank everyone for joining us today to celebrate the
Committee's 20 years of making a difference in the lives of RCMP members. I am
very pleased to see such a great turn out and to see people from the many
different areas of RCMP labour relations.
I would like to acknowledge the presence of Myles Kirvan, Associate Deputy
Minister with Public Safety Canada, Commissioner William Elliott, and members of
the National Executive of the Staff Relations Representatives Program, Staff
Sergeant Brian Roach and Staff Sergeant Bob Meredith.
I am particularly pleased to welcome two former Chairs of the External Review
Committee. Jennifer Lynch, who is currently the Chief Commissioner of the
Canadian Human Rights Commission, served as Acting Chair and Vice Chair of the
Committee from March 1992 to July 1998. Philippe Rabot, who is currently the
Commissioner of Canada Pension Plan / Old Age Security Review Tribunals, served
as Acting Chair and Vice- Chair from 1998 to 2001 and as Chair from July 2001
until April 2005. Thank you both for being here.
I also wish to welcome three former External Review Committee Executive
Directors: Simon Coakeley, Bernard Cloutier and Garry Wetzel. We appreciate your
presence here today as well.
In addition to the present staff of the Committee, many former employees are
joining us. Today's celebration is also a recognition of your essential
contributions to the Committee's work over the years.
But what has gotten us to where we are today?
As many of you will know, it was in 1976 that Mr. Justice René Marin - as head
of the Commission of Inquiry Relating to Public Complaints, Internal Discipline
and Grievance Procedure within the Royal Canadian Mounted Police - proposed to
transform the way in which labour relations matters were addressed in the
RCMP.
The Commission report led to changes to the RCMP Act in 1986 and to
the creation, two years later, of the External Review Committee to provide an
independent voice in labour relations within the RCMP.
Mr. Justice Marin went on to become the first Chairperson of the Committee
and his contributions not only resulted in the Committee getting up and running,
but served to shape and develop the Committee's vision and approach.
The creation of the Committee was a significant innovation. For the first
time, RCMP labour relations practices became subject to civilian scrutiny and
members had the opportunity to have their grievances, disciplinary appeals and
discharge and demotion appeals reviewed by an independent and impartial body.
The addition of civilian review added a new level of accountability and
transparency to the labour relations processes.
Over the past 20 years, the Committee has worked hard to provide impartial,
independent findings and recommendations that are based on sound principles of
law. Through its interventions, the Committee has also provided clarity and
guidance for the interpretation of the RCMP Act, Regulations and
policies, and identified systemic issues in the work environment.
For example, Committee recommendations in grievance cases have led to policy
changes, in areas including the duty to accommodate disabled members, which
resulted in improvements in the work place and a better quality of life for RCMP
members.
Over the years, the Committee has always been a champion for procedural
fairness in labour relations processes. It has consistently ensured that members
have the right to be heard, the right to reasonable disclosure, the right to an
unbiased decision maker, and the right to reasons that adequately explain
decisions that affect them.
By focusing on the inherent fairness of the process, the Committee has
contributed to better, more informed decisions at all levels in the RCMP labour
relations process.
This concept of fairness has also been front and centre in the Committee's
disciplinary appeal reviews. In keeping with the Marin Report's central
recommendation that the RCMP disciplinary system be more remedial, rather than
punitive, the Committee has recognized the significant value of individual
members to the Force, and promoted a system focussed on correction and
rehabilitation, rather than punishment.
The Committee has provided a strong voice on these issues. In its 2001
discussion paper, "Disciplinary Processes and Dispute Resolution Techniques in
the RCMP", the Committee proposed amending the RCMP Act to increase the
range of sanctions that could be administered by a Board-a recommendation that
has since been repeated in both the Lordon and the Brown Task Force reports.
A small but equally important component of the Committee's work has involved
discharge and demotion appeals, and here too the concept of fairness has been a
primary focus of its findings and recommendations. The Committee has emphasized
the importance of the Force providing meaningful assistance to members when they
are faced with performance problems and potential career consequences which may
flow from them.
Over and above its case work, the Committee undertakes a variety of outreach
efforts in order to ensure that RCMP members, Force management, stakeholders,
and the public are aware of the Committee's tangible contribution to better
labour relations within the RCMP. This is achieved through our quarterly
publication - the Communiqué - and our extensive website, which includes
summaries of all of the Committee findings and recommendations, summaries of the
Commissioner's subsequent decisions, and articles prepared by staff on a number
of topics relevant to its work.
Maintaining an ongoing dialogue with stakeholders is also central to our
outreach effort. In recent years, the Committee has met with the Commissioner,
Staff Relations Representatives, and RCMP officials involved in labour relations
processes. These meetings have served to share information on the Committee's
work and to gain insight into the environment in which it evolves.
Sharing our beliefs and values with the public is also essential to ensure
that the Committee is recognized as a partner in and a contributor to the
advancement of RCMP labour relations. To this end, the Committee has made
submissions to the Arar Commission, the Brown Task Force and the Public Accounts
Committee to help raise awareness of RCMP labour relations issues.
In conclusion, the Committee's goal "To contribute to positive labour
relations in the RCMP and thereby make a difference in the lives of RCMP
members", remains as important and relevant today as it was 20 years
ago.
We thank all of you who have worked with us in the past and we look forward
to meeting and working with even more stakeholders in the years to come.
The Committee is extremely proud of the contribution that it has made over
the last 20 years and is enthusiastic and optimistic about RCMP labour relations
in the future.
Thank you.
Between July and September 2008, the Committee issued
the following recommendations:
G-443The Force made a position English Essential. It then advertised the
position.
The Grievor filed a Level I grievance because he was allegedly told that the
position would not, and should not, be English Essential. He claimed prejudice
on the ground that he would have to compete for the position against a larger
group. He also asserted that he would suffer a loss of promotion, income and
future advancement. The Grievor never filed a submission or sought an extension
even though he was given numerous chances to do so.
The Level I Adjudicator denied the grievance. He found that the Force
properly informed the Grievor of his rights and obligations in the grievance
process, and gave Grievor an opportunity to make his case. Yet the Grievor did
not give due diligence to the directions that he received. As a result, the
Level I Adjudicator held that the Grievor did not prove his case on the merits.
He also found that no error of process occurred.
The Grievor filed a Level II grievance. The Force informed him that its
grievance policy stated that "no new facts or grounds should be
presented...to Level II, unless they were not known at the time the file was
being processed by Level I". The Grievor submitted new details, anyway.
Committee's Findings
The Committee agreed with the Level I
Adjudicator that the Grievor did not provide enough information to substantiate
his grievance. The details that the Grievor added at Level II were known to him
at Level I. He therefore should have filed them before the Level I decision was
made. He also failed to explain why he did not make a Level I submission.
The Committee further found that the Respondent had presented information
confirming the reasons why the Force made the position English Essential.
Moreover, the record established that the RCMP Official Languages Directorate
had approved that language requirement.
Lastly, the Committee observed that it was not convinced that there was
adequate information on the record to confirm that the Grievor had standing. He
never explained his connection to the position, and ultimately failed to show
how the Force's decision to make it English Essential caused him direct and
personal prejudice.
Committee's Recommendations
The Committee recommends to the
Commissioner of the RCMP that he disregard the details that the Grievor
submitted for the first time at Level II, and deny the grievance.
G-444A Health Services Officer (HSO) established a medical profile of 06 for the
Grievor, which was defined as "unable to perform, on a permanent basis, any
operational or administrative duties at the RCMP". He also recommended that
the administrative medical discharge process be initiated. The Officer in Charge
(OIC), Employee Management relations (EMR) subsequently issued a Notice of
Intention to Discharge.
The Grievor filed two grievance forms, objecting to all three acts/decisions.
The Office for the Coordination of Grievances (OCG) opened a single grievance
file and invited the Grievor and the OIC EMR to make submissions on the question
of standing. No submissions were received.
The grievances were forwarded to the Level I Adjudicator. He determined that
the HSO grievance was a duplication of a previous grievance and he denied the
OIC EMR grievance on the basis of a lack of standing.
The grievances were referred to the Committee. After receipt of the file, the
Committee was advised by the Grievor that materials that she had submitted in
support of the grievance had been rejected by the OCG and were not on the
record. The Committee confirmed that materials were submitted by the Grievor,
but not accepted by the OCG. The Committee secured copies of these materials.
Committee's Findings
The Committee found that the HSO
grievance addresses the same decisions grieved in 3300-06-010 (G-436).
The Committee further found that the Grievor lacked standing to bring the OIC
EMR grievance, as there is another process for redress identified in the
RCMP Regulations, in the form of the medical discharge process found in
section 20.
Finally, the Committee found that there were a number of procedural
irregularities in this file, including the OCG's decision to refuse to process
the OIC EMR grievance and instead incorporate it into the HSO grievance, the
OCG's decision to return documents submitted by the Grievor and the failure to
acknowledged the Level II grievance form or prompt the Grievor to make a
submission.
Committee's Recommendations
The Committee recommends to the
Commissioner of the RCMP that he decline to consider the issues in the HSO
grievance as they are a duplication.
The Committee also recommends to the Commissioner that he deny the OIC EMR
grievance.
The Committee further recommends to the Commissioner of the RCMP that he
apologize to the Grievor for the procedural deficiencies.
G-445Shortly before his retirement, the Grievor submitted an application to extend
his term of service with the Royal Canadian Mounted Police (RCMP), beyond 60
years of age. However, the A/Commanding Officer recommended that the RCMP deny
the request. The file does not contain the reasons for this recommendation.
Consequently, a grievance was filed on November 30, 2006. The Office for the
Coordination of Grievances (OCG) requested information from the parties about
the Grievor's standing. The Respondent indicated that the authority to approve
an extension of service came under the purview of the RCMP Commissioner and that
the matter could not be grieved because it involved a notice of intention to
discharge, and the Administration Manual (AM), Appendix II-38-2 stipulates that
another recourse exists concerning these notices. There is no indication that
the Grievor responded to the OCG.
In the preliminary decision, the Level I Adjudicator found that the Grievor
did not have standing, because firstly, a recommendation does not cause harm to
an individual. Secondly, the Adjudicator found that another recourse existed for
this grievance under sections 45.19(1), (2), and (4) of the RCMP Act, and under
section 19 of the Regulations. The Grievor requested a review at Level
II.
Committee's Findings
The Committee found that, because the
Grievor alleges that he is a victim of discrimination, the conditions required
for referring the grievance to the Committee have been fulfilled.
Concerning the intervention of the OCG, the Committee found that, under AM
II.38.I.8, it had not overstepped its mandate by deciding that the issue of
standing should be examined. Moreover, the OCG had given the parties an
opportunity to be heard.
Finally, concerning the issue of standing, the Committee found that the
Respondent's recommendation was an action taken in the course of administering
RCMP business. Moreover, this action caused harm to the Grievor because the
negative recommendation reduced the chances that the RCMP would approve the
request to extend his term of service. The Committee also found, unlike the
Level I Adjudicator, that there was no other recourse possible. In fact, under
section 45.19 of the Act, which the Adjudicator cited, the application could not
be admissible in the Grievor's case, because the issue is not one of discharge
or demotion.
Similarly, section 20 of the Regulations which the Adjudicator also
relied on, does not provide for any other recourse in the Grievor's case.
Committee's Recommendations
The Committee recommends that
the Commissioner of the RCMP allow the grievance and refer the file to Level I
for processing.
G-446The Grievor requested approval of a retirement relocation of less than 40 km.
The Respondent denied this request.
The Grievor filed a grievance. He argued that the RCMP Integrated
Relocation Program 2003 (RCMP IRP) was ultra vires as it
contradicted the Treasury Board (TB) directive that was in effect at the time,
that even if the policy applied he met the requirement of having "exceptional
circumstances" and a retirement move, regardless of distance, was an expressed
or implied term of his employment contract with the Force.
The Respondent countered that the RCMP had no authority to approve retirement
relocation of less than 40 km, and there were no exceptional circumstances in
the Grievor's case.
Committee's Findings
The Committee found that the RCMP
IRP did not contradict the TB directive on relocation and the Grievor was
not entitled to a retirement relocation of under 40 km, except as provided for
in the RCMP IRP.
The Committee found that the Respondent did not properly exercise his
discretion when refusing the Grievor's request for a retirement relocation of
under 40 km, as he believed that the RCMP did not have authority to approve any
retirement relocations of less than 40 km, under any circumstance.
However, notwithstanding this error on the part of the Respondent, the
Committee found that the Grievor did not meet the conditions set out in the
RCMP IRP for the approval of a retirement relocation of under 40 km,
namely, he was not a member who was living in Crown-owned accommodation nor did
he qualify under the "exceptional circumstances" provision.
Committee's Recommendations
The Committee recommends that
the Commissioner of the RCMP allow the grievance and make a new decision on the
merits.
If the Commissioner decides to rule on the merits, the Committee further
recommends that he refuse the Grievor's request for a retirement relocation of
under 40 km on the basis that the Grievor does not meet the conditions of the
RCMP IRP.
G-447In the course of legal proceedings, counsel for the Grievor's former spouse
obtained a subpoena requiring that RCMP provide the court with a copy of the
Grievor's disciplinary record. In response to the order, the Respondent
forwarded a copy of the Grievor's disciplinary record, along with statements
made during the internal investigation, to counsel for the Grievor's former
spouse. The Grievor filed a complaint with the Privacy Commissioner of Canada.
The Privacy Commissioner found that the RCMP had violated the Privacy
Act in both the manner in which the documents were disclosed and the
content of the disclosure.
The Grievor filed a grievance claiming that the sharing of his personal
information had violated the Privacy Act and the RCMP Act. The
Level I Adjudicator found that the Grievor did not have standing because he had
alternate recourse before the Privacy Commissioner. The Grievor requested a
Level II review.
Committee's Findings
The Grievor does have standing,
because recourse under the Privacy Act does not constitute another
process that prevents the filing of a grievance under section 31(1) of the
RCMP Act.
In terms of basis for the grievance, the evidence on file - particularly, the
report of the Privacy Commissioner - shows noncompliance with the provisions of
the Privacy Act in the Grievor's case. The findings of this report
should be accepted, given that the Respondent has not raised any objections
concerning its relevance and given the length of time elapsed since the
grievance was filed. Accordingly, the Committee found that the RCMP had erred in
sharing some of the Grievor's personal information, which was not a part of the
disciplinary record, and in sharing the documents with counsel for the Grievor's
former spouse rather than the judge in the matter.
The Committee was unable to determine whether the RCMP's actions violated
section 40 of the RCMP Act based on the information in the file.
Committee Recommendations
The Committee recommends that the
RCMP Commissioner allow the grievance and that he apologizes on behalf of the
RCMP for the breach in communicating the disciplinary record. Moreover, the
Committee recommends that the Commissioner consider refunding the Grievor the
costs incurred to have the disclosed documents withdrawn.
G-448The Grievor submitted a request for access to personal information to the
RCMP. More than one month later, the Respondent confirmed receipt of the
Grievor's request, and also informed him that the RCMP would be unable to
respond within the time limits set out in the Privacy Act. Following an
additional onemonth delay, the Respondent reiterated that the RCMP would be
unable to respond to his request within the time limits set out in the
Privacy Act.
The Grievor filed a grievance. After the grievance was filed, the Respondent
sent the Grievor the documents he requested. The Respondent maintained that the
grievance had become a moot point and the Office for the Coordination of
Grievances (OCG) referred the matter to the Level I Adjudicator for decision.
The file was sent to the first level without the Grievor's representations in
the matter. The Level I Adjudicator found that the Grievor had obtained the
redress sought and no longer had any interest in the grievance.
The Grievor submitted the grievance to the second level. Later, he sent
another grievance form to the OCG concerning the manner in which the OCG had
handled his grievance. The OCG informed the Grievor that this new form would be
added to the current file for Level II review. The Grievor expressed his
disagreement with the way in which the OCG chose to proceed.
Committee's Findings
The Grievor was denied the right to be
heard concerning the moot character of the grievance. Correspondence from the
OCG informing the Grievor of his right to make representations in the matter was
confusing and contributed to the fact that the Grievor made representations
after the file was sent to the adjudicator.
With regard to the other objections raised by the Grievor concerning the
handling of his grievance by the OCG, it was appropriate for the OCG to treat
these issues as incidental in order to have them considered in the course of
this grievance. However, the file does not lead to a finding that the OCG acted
inappropriately or in bad faith concerning the Grievor.
As for the basis for the grievance, the Committee feels that the issue on
which the grievance is based is not a moot point. Despite the fact that
documents were submitted to him, the Grievor claims he suffered harm owing to
the excessive length of time needed to provide them. Although the RCMP informed
the Grievor twice that it would be unable to meet the time limits set out in the
Privacy Act, it did not offer any reasons, and consequently, there is
no way to determine whether the RCMP had lawful grounds for failing to comply
with the established time limits. Because section 16(3) of the Privacy
Act indicates that failing to comply with time limits is equivalent to a
refusal of communication, the Committee found that the RCMP did not comply with
the Privacy Act in processing the Grievor's request for access.
Committee's Recommendations
The Committee recommends that
the RCMP Commissioner allow the grievance and apologize to the Grievor on behalf
of the RCMP for the harm caused by this shortcoming.
Update
The Commissioner has provided his decision in the following matters,
summarized in previous issues of the Communiqué:
D-106(summarized in the April-June
2008 Communiqué) The Member stole a
quantity of marijuana from his brother, possessed it for approximately six
months, and smoked some of it on four or five occasions over a period of four to
six months. He then lost his wallet which contained the marijuana, drug
paraphernalia, three unspent bullets, and his identification. The Member
eventually admitted to the possession and the deceptions after taking a
polygraph test. The Board directed that the Member resign within 14 days or be
dismissed. The Committee agreed and recommended that the appeal be
dismissed.
Commissioner's Decision
The member withdrew his appeal
before the Commissioner could render a decision in this matter.
G-397(summarized in the October-December
2006 Communiqué) The Grievor had
a number of concerns about the way in which a harassment investigation had been
handled. The Level I Adjudicator found that the Grievor had standing but that
the grievance failed to respect the time limits. The Committee found that the
Grievor respected the statutory time limit. It recommended that the grievance be
allowed and that the case be referred back to the parties so that the grievance
process can proceed.
Commissioner's Decision
The Commissioner's decision,
as summarized by his office, is as follows:
The Commissioner agrees with the ERC that the Grievor respected the
30-day statutory time limit to file his grievance. It would be unreasonable to
have a member grieve each and every policy breach in relation to a single
investigation process. Awaiting the outcome of the harassment investigation
process before filing a comprehensive grievance pertaining to decisions, acts or
omissions in its handling was more appropriate.
The Commissioner also agrees with the ERC that the case should be
referred back to Level I so that the grievance process may continue. The parties
have yet to complete the Early Resolution Phase of the grievance process, the
documents sought by the Grievor have not been disclosed to him, and both parties
expressly indicated that they wanted to present submissions on the merits,
should the Level I decision on the time limit be overturned. The Commissioner
therefore agrees with the ERC that this is not a case in which the merits should
be addressed at Level II.
G-405(summarized in the
January-March 2007 Communiqué) The Grievor filed
a harassment complaint against two superiors. The Level I Adjudicator denied the
grievance on the basis that the Grievor lacked standing. The Committee found
that the issue of the process used to deal with a harassment complaint is
grievable. It recommended that the grievance be allowed and that the
Commissioner order that the matter be returned to the Early Resolution Phase at
Level I.
Commissioner's Decision:
The Commissioner's decision,
as summarized by his office, is as follows:
The Commissioner agrees with the ERC that the Grievor has standing to
present his grievance, and that the Respondent made errors in his justification
for denying the Grievor's disclosure request. As proposed by the ERC, the case
is to be referred back to the Early Resolution Phase at Level I of the grievance
process. As part of the discussions in this Phase, the parties should further
explore the issue of disclosure, taking into account the reasons pertaining to
this issue expressed in the ERC's report and the Commissioner's
decision.
The Grievor's request that the administration of his grievance file be
assigned to the office for the coordination of grievances and the Level I
Adjudicator of another region is denied.
Articles
Update - Decision of the Federal
Court in the Smart case
by Josh Brull, Legal Counsel
September 2008
On August 11, 2008, the Federal Court of Canada (Court) released its decision
in Smart v. Attorney General of Canada (2008 FC 936). That case
represents the Court's most recent determination in the area of discipline under
the Royal Canadian Mounted Police Act (Act).
In May 2002, the Force received a complaint that Constable (Cst.) Smart had
engaged in misconduct. He allegedly misused the police information data systems,
and disclosed confidential information, in the Fall of 2000.
The Force initiated a disciplinary hearing in July 2003. The Appropriate
Officer (AO) noted that she did not learn about Cst. Smart's identity or alleged
violations until April 2003. She filed a certificate to that effect, under
s.43(9) of the Act.
Cst. Smart applied to have the Notice of Hearing quashed. He argued that the
AO did not respect the time limit for commencing a hearing, as set out in
s.43(8) of the Act. That section prohibits the initiation of a hearing
after the expiration of "one year from the time the contravention and the
identity of the member became known to the appropriate officer." He also
sought a stay of proceedings on the basis that the delay represented an abuse of
process.
The Adjudication Board (Board) quashed the allegations. In its view, the AO
"ought to have known" about Cst. Smart's purported wrongdoing in May
2002. It therefore held that the one year time limit under s.43(8) had expired
by July 2003. The Board also granted a stay of proceedings on the ground that
there was "an abuse of the time limitation". The AO appealed.
The Committee disagreed with the Board. It found that, absent evidence to the
contrary, the AO's certificate established that she became aware of Cst. Smart's
identity and alleged contraventions in April 2003. The Committee explained that
because disciplinary proceedings began only three months later, the one-year
limit under s.43(8) of the Act had been respected. It also found that
there was no abusive delay. In this regard, it applied the test set out by the
Supreme Court of Canada, and concluded that Cst. Smart's right to a fair hearing
had not been compromised, as he did not show that the delay was so oppressive as
to taint the proceedings.
The Committee recommended that the Commissioner allow the AO's appeal. It
also recommended that the matter be returned for adjudication.
As it happened, the Acting Commissioner had been involved in the case. She
therefore recused herself from the proceedings. The matter was referred to a
Deputy Commissioner.
The Deputy Commissioner agreed with the Committee. He allowed the AO's
appeal. He concluded that the disciplinary hearing was initiated within the
one-year limitation period, and that there was no abuse of process. He directed
that a new hearing be held.
Cst. Smart applied to the Court for judicial review. He asserted that the
Deputy Commissioner both misconstrued the s.43(8) time limit and wrongly found
that there was no abuse of process.
The Court dismissed Cst. Smart's application and upheld the Deputy
Commissioner's decision.
It held that the Deputy Commissioner properly interpreted the time limit
under s.43(8) of the Act. The Court reasoned that the limit did not
expire until one year after a member's identity and violations "became
known" to an appropriate officer, not one year after they "ought to
have" been known. It explained that the knowledge required to trigger the
time limit must belong to an appropriate officer, not to someone else, since
only an appropriate officer could launch formal disciplinary proceedings. The
Court found that the AO respected the time limit, as she initiated a hearing
less than a year after learning of Cst. Smart's identity and purported
wrongdoing.
The Court also held that the Deputy Commissioner's finding regarding the
delays was reasonable. It found that the delay was "not great", given
that the period from the receipt of the complaint to the start of proceedings
was only about 14 months. It reasoned that the Force did not act in bad faith.
It also pointed out that Cst. Smart's ability to defend himself was not
compromised.
Lastly, the Court observed that the Board did not have the benefit of the
Federal Court of Appeal's (FCA) recent analysis in Thériault v. Canada,
[2006] FCA 61. In that decision, the FCA articulated the same key principle that
the Court applied in Cst. Smart's case. That is, an appropriate officer acquires
the knowledge referred to in s.43(8) when (s) he is in possession of reliable,
persuasive information about a member's identity and alleged misconduct.
The Court referred the case back to the Board level, to be determined on its
merits.
Promoting Mental Health in the RCMP
By Josh Brull, Legal Counsel
September 2008
Introduction
Working for the RCMP is psychologically demanding. Many members put in long
shifts and significant amounts of overtime. They are responsible for protecting
lives. They are also regularly exposed to danger and distress. Officers who make
split-second, life or death decisions often have to live with difficult
consequences. Although most do their jobs with honesty, diligence and goodwill,
they must sometimes endure negative media images of police. Then, when the shift
is over, members face the everyday stressors of life outside the job.
Increased attention is being paid to mental health issues within the RCMP. In
a 2006 report, the Standing Senate Committee on Social Affairs, Science and
Technology observed that police stress can lead to mental health problems such
as depression, burnout and suicide.1
In 2007, the Brown Task Force on Governance and Cultural Change in the RCMP
(Brown Task Force) recommended that the Force ensure that "member and
employee health and wellness be an essential consideration in policy and
operational decisions at all levels".2
The Committee has worked, and continues to work, to promote mental health in
the Force. This paper highlights some of the Committee's efforts. It
specifically considers the effects that mental health issues can have in
grievances involving isolated posts, suspensions without pay, harassment,
accommodation and medical discharge. It also examines the significance of mental
health matters in the disciplinary as well as the discharge and demotion
processes.
Isolated Posts
The Force provides policing services all over Canada, including numerous
remote locations that are referred to as "isolated posts". Operating in
an isolated post can be stressful. Climates are usually harsh. Ordinary goods
and services are often hard to find. Professional support can be minimal. One
might also be secluded from friends and family. In G-061, the Committee reviewed
the Force's decision to deny a Grievor's travel claim. The Grievor and his wife
lived at an isolated post. When the Grievor's wife travelled to a distant city
to have major surgery, he accompanied her to provide moral support. The
grievance turned on the interpretation of a policy that entitled members to
various expenses when it was "necessary" for them to accompany
dependents during medical-related travel. The Force decided that it was
unnecessary for the Grievor to escort his wife. It appeared to base its decision
on a belief that she did not need physical help. The Committee was unconvinced.
It found that the scope of the policy was broad enough to cover moral support in
certain cases. It recommended that the Commissioner revisit the matter. The
Commissioner denied the grievance. He held that the Grievor's desire to morally
support his wife did not make his presence necessary.
In G-269, similar facts led to a different result. The Grievor and her
husband were members at an isolated post. When the Grievor travelled to a
distant city to give birth, her husband joined her to lend moral support. The
Force denied his travel claim on the ground that there was no medical
requirement for him to accompany the Grievor. The Committee saw things
differently. It observed that although the relevant government directive did not
provide for the payment of travel expenses to those who left isolated posts to
attend the births of their children, other departments had applied it that way.
The Committee found that the Force should apply the directive in a way that
reflected the broader government application. It therefore recommended that the
Force reimburse the husband's justifiable travel expenses. The Commissioner
agreed.
The Committee is pleased that concerns about the well-being of members at
isolated posts are gaining more recognition. The Brown Task Force recently
recommended that: "in respect of...isolated postings, we urge the Force to
work with the Treasury Board to make sure that treatment of members who are
prepared to serve in these areas is fair and appropriate". The Force
subsequently expressed a commitment to attracting members to isolated posts, and
to taking innovative steps to look after them and their families while they are
there.3
Suspension Without Pay (SWOP)
Regulation provides that the Force shall stop paying suspended members if
they were "clearly involved" in committing certain offences that are so
"outrageous" as to significantly affect their proper performance of
duties. The Committee has noted that SWOPs may be very difficult for members,
even if they are later cleared of any wrongdoing. Issues such as depression,
substance abuse, family tensions and financial hardship can ensue.4
Given the mental health implications that can arise in relation to SWOP orders,
the Committee has reinforced the importance of ensuring that the above threshold
test is met before such orders are issued.
In G-353, the Committee found that the Force should not have issued a SWOP
order against a Grievor who was charged with 13 Criminal Code offences including
transferring ammunition without authority and possessing prohibited devices
without a licence. The Committee noted that it was unclear if the Grievor was
"clearly involved" in "outrageous conduct" at the time the
order was issued. It also observed that he had valid explanations that had not
been weighed. The Committee recommended that the grievance be allowed. The
Commissioner agreed.
In G-359, the Committee determined that the Force should not have issued a
SWOP order against a Grievor who allegedly stole a one hundred dollar bill. In
the Committee's view, the mere fact that the Grievor possessed the bill did not
prove that he was "clearly involved" in the offence of taking it
without lawful justification. It also found that there were conflicting,
plausible versions of what actually happened, and that some of the relevant
facts lacked clarity. The Committee therefore recommended that the grievance be
allowed. The Commissioner agreed.
The Committee has also reviewed a case where poor mental health explained the
misconduct which led to a SWOP. In G-177, the Force issued a SWOP order against
a Grievor who was accused of offences under the Criminal Code and the Customs
Act. A psychological report showed that, at the time of his transgressions, the
Grievor suffered from a dissociative disorder, and possible psychotic delusions,
which prevented him from making logical decisions. The Committee found that the
Force had to take into account the Grievor's mental health. It noted that
although the Grievor's misconduct was serious, his psychological condition had a
mitigating effect such that it was appropriate for the Force to pay him during
his suspension. The Commissioner agreed. He ordered the reimbursement of the
Grievor's pay.
Harassment
The Treasury Board Policy on Prevention and Resolution of Harassment in the
Workplace describes workplace harassment as "any improper conduct by an
individual, that is directed at and offensive to another person or persons in
the workplace, and that the individual knew or ought reasonably to have known
would cause offence or harm".
The psychological effects of exposure to workplace harassment can be
substantial. Harassment can cause, among other things, tremendous stress,
difficulties concentrating and making decisions, lost confidence, isolation,
panic, anxiety disorders, depression and an inability to work. It can also lead
to a reduction in workforce morale, loyalty and dedication.
The Committee has noticed a rise in harassment grievances referred to it over
the past several years.5
It has taken steps to help the Force achieve its goal of providing a
harassment-free workplace.
For example, the Committee has found, and the Commissioner has agreed, that
under policy, the Force must investigate every harassment complaint, except
where it is inconceivable that a full investigation would lead to a conclusion
that harassment occurred (G-251, G-362, G-420).
The Committee has also clarified that it does not matter if an alleged
harasser did not mean to harass someone. It explained that the Force must assess
purported harassment on the basis of whether or not it amounted to improper
conduct that was offensive to a complainant, and which the accused harasser
should have known would be unwelcome (G-235, G-253).
The Committee further understands that a harassment allegation may have
serious effects on an alleged harasser's mental health. Fair and transparent
procedures can reduce those effects. In G-416, the Committee found that the
Force must give alleged harassers enough detail about the allegations to allow
them to properly respond. It found that, ideally, the Force should provide
copies of witness statements and the draft investigation report. The Committee
cautioned that a failure to provide adequate information may result in a
decision arising out of a harassment investigation being overturned. The
Commissioner has not yet decided this matter.
Accommodation and Medical Discharge
Where possible, the Force must accommodate members whose mental health
conditions diminish their abilities to perform police duties. In this regard,
the Committee has helped the Force to align its accommodation policies with the
principles of Canadian human rights law.
In G-266 and G-267, the Committee considered the issue of medical discharge
and the 'bona fide occupational requirement' (BFOR). It pointed out
that a recent Supreme Court of Canada decision had changed the test for
establishing a BFOR. The new test imposed a higher standard on the duty to
accommodate by requiring the Force to prove that it would face undue hardship if
it had to accommodate a disabled member's needs. The Committee found that the
Force's process for accommodating disabled members fell short of that standard.
The Commissioner agreed with the Committee. As a result, he took steps to
develop a new policy which addressed the proper accommodation of members with
disabilities.
The new policy recognizes the significant hardships that mental disabilities
can inflict upon members. For example, it explains that when the Force attempts
to identify employment options for an affected member, it should "give
preference to the [option] which provides the member dignity, autonomy, privacy,
integration in the workplace, minimizes discomfort or inconvenience, and
promptly addresses the member's needs".6
Disciplinary, Discharge and Demotion Processes
Members who are accused of wrongdoing, or who are subject to discharge or
demotion proceedings, may have suffered from various mental health conditions
during the time of their alleged misconduct or poor performance. They
occasionally submit psychological evidence to explain their actions and/or raise
doubts about the wilfulness of their conduct. Mental health issues can be
important, and sometimes pivotal factors in these cases.
In D-014, the Committee recommended that the Commissioner allow the appeal of
a Member who had been ordered to resign following a shoplifting incident. The
Committee relied, in part, on two psychological assessments which concluded that
the Member did not intend to shoplift, and that his actions were related to the
stress that he faced at the time of the misconduct. Specifically, over a short
period of time, the Member had suffered five major operations, a traffic
accident, a bankruptcy, tornado-induced home damage, the death of a parent, the
elimination of his position and the effects of caring for an alcoholdependent
spouse. The Commissioner accepted the Committee's analysis. He acknowledged that
anyone might engage in unusual misconduct if placed under enough stress, and
that police officers must be excused when they are so unfortunate as to fall
into extreme circumstances.
In D-099, the Committee considered the appeal of a Member who was ordered to
resign for neglecting his duties. The Member was under an inordinate amount of
strain at the time of his transgressions. His stressors included the birth of a
child, the death of a parent, various family illnesses and a trial involving a
police vehicle accident. An expert concluded that those stressors caused the
Member to be overwhelmed, disorganized and prone to poor judgment. The Committee
relied on that evidence, in part, in recommending that the Commissioner find
that some of the allegations against the Member were not established. It also
recommended that the Member's appeal on sanction be allowed, finding that not
enough weight had been placed on the evidence that the Member was under
extraordinary stress at the time of the misconduct. Although the Commissioner
found that most of the allegations had been established, he agreed that a
sanction less than dismissal should be imposed. He held that the many stressors
in the Member's life were given insufficient weight, and that there was reason
to believe that the Member could be rehabilitated. He therefore imposed a lesser
sanction.
The Committee has also pointed out that mental health factors such as
depression, toxic work environments and serious family problems should be taken
into account when determining whether or not a member should be discharged or
demoted (R-001, R-002).
Conclusion
The promotion of mental health in the RCMP is beneficial not only to members
and the Force, but to all Canadians. The Committee will continue to work hard to
offer useful findings and recommendations on laws and policies concerning mental
health issues. Put simply, a healthy RCMP is an effective RCMP. The Committee
remains dedicated to fostering both.
(The author wishes to thank Melvin Chuck and Martin Griffin for their
valuable contributions.)
Endnotes
Out of the Shadows at Last: Transforming Mental Health, Mental Illness and
Addiction Services in Canada; available at the Parliament of Canada's
website.
This report is available on Public Safety Canada's website.
March 2008 interview with A/Commr. Keith Clark, by CBC Reporter Alison Crawford;
available on the RCMP's website.
Suspensions - A Balanced View (1988); available on the Committee's website.
See the Committee's 2007-2008 Annual Report, at p.17; available on Committee's
website.
See RCMP Administrative Manual, ch.II.37, para. G.6.e.