Grievance Case Summary - G-658

The Grievor worked in the National Undercover Operations Program (UC Program). She was arrested and charged under the Criminal Code. The charges were later withdrawn by the Crown. An RCMP discipline Adjudication Board held an expedited hearing. The Grievor faced a single allegation of disgraceful conduct contrary to Section 39(1) of the RCMP Regulations. The Grievor emphasized that her conduct was influenced by a disability, but admitted to the allegation. Accordingly, the Adjudication Board found the allegation to be established. Pursuant to the parties' joint submission on sanction, the Adjudication Board imposed a reprimand, the forfeiture of ten days' pay, and a recommendation for professional counseling.

The Respondent subsequently determined that the Grievor should be removed from the UC Program. He stated that, due to its unique evidentiary credibility challenges, the program was limited to operators whose conduct and honesty were beyond reproach.

The Grievor grieved this decision. She emphasized the connection between her disability and her conduct which resulted in the criminal charges. Since she was now fit for duty as a member, the Grievor contended that she was also fit to return to the UC Program. The Grievor further referred to the anti-discrimination provisions in the Canadian Human Rights Act (CHRA).

The Level I Adjudicator denied the grievance. She found that the Respondent was authorized to make managerial decisions based on the Grievor's disciplinary record. She further found that the Grievor had not satisfied the prima facie test for discrimination under the CHRA because the Grievor did not demonstrate that her disability was a factor in the adverse impact. The Grievor reiterated her position at Level II. The Grievor also argued that the Level I Adjudicator had a conflict of interest because the Adjudicator may have previously advised a Commanding Officer in relation to the Grievor's disciplinary proceedings.

The ERC observed that the written decision from the Adjudication Board did not support the contention that the Level I Adjudicator was involved in the Grievor's disciplinary proceedings. The ERC found that a reasonable person viewing the matter realistically and practically would not conclude that there was a likelihood of bias.

The ERC found that the McNeil disclosure obligations could create unique evidentiary credibility challenges for undercover operators. As a result, the Grievor had not demonstrated why the Respondent's decision, which referred to these unique challenges, was inconsistent with applicable policy or legislation. The ERC further found that the Grievor had not satisfied the prima facie test for discrimination under the CHRA: the Respondent's decision to remove the Grievor from the UC program was related to her record of misconduct and not to her disability.

The ERC recommended that the Commissioner deny the grievance at Level II.

The Commissioner’s decision, as summarized by her office, is as follows:

The Grievor was arrested and charged for theft. The criminal charges were later withdrawn. The Grievor admitted to disgraceful conduct contrary to subsection 39(1) of the RCMP Regulations before an Adjudication Board. The Respondent then removed the Grievor from the National Undercover Operations Program due to the unique evidentiary requirements of its operators testifying in court. The Grievor argued that the decision was discriminatory against her disability, which was the underlying cause of her behaviour that led to her misconduct. The Level I Adjudicator denied the grievance, finding that the Grievor failed to establish that the Respondent’s decision was prima facie discriminatory. The External Review Committee (ERC) found that the Grievor did not demonstrate that the Respondent’s decision was inconsistent with applicable policy or legislation and found that the Grievor had not satisfied the prima facie test for discrimination. The ERC recommended that the Commissioner deny the grievance. The Commissioner accepted the recommendation and denied the grievance.