NC-155 - Harassment

The Appellant filed a harassment complaint in which he accused his superior (Alleged Harasser) of mistreating him in different ways. The Appellant listed seven witnesses, including retired “Detective Sergeant” (Sgt.) [X], who reportedly observed multiple alleged incidents. An investigation followed.

The investigation team collected numerous records. These included: audio statements from both parties; audio statements from six witnesses, excluding Sgt. [X]; and a written statement from the Alleged Harasser. The team then circulated a Preliminary Investigation Report (PIR) to which they attached summaries of audio statements. The parties responded to the PIR with written rebuttals. The investigators later sent their Final Investigation Report (FIR) to the Respondent. It appears to have contained all the written materials they marshalled, except for the Appellant’s PIR Rebuttal.

The Respondent decided that the Alleged Harasser did not engage in harassment and, in turn, that he did not offend the RCMP Code of Conduct (Decision). On appeal, the Appellant submits that the process underlying the Decision was procedurally unfair in many respects.

The process underlying the Decision was procedurally unfair in three ways.

First, the Appellant was not permitted to review and respond to the Alleged Harasser’s written statement, given that it was not attached to the PIR. This was an important statement. It was before the Respondent, over 13 pages long, and offered context and opinions that went beyond what was set forth in Alleged Harasser’s audio statement. The Appellant’s right to make his case included a chance to respond to this statement. The denial of that chance was a denial of his right to be heard.

Second, the investigators’ decision not to speak with Sgt. [X] was problematic because the record indicated that Sgt. [X] could have provided obviously crucial evidence. It was undisputed that Sgt. [X] was present during allegedly harassing incidents, understood the dynamics between the parties, and had an informed perspective of the circumstances. Both parties also felt that Sgt. [X] could have given the Respondent helpful information. Moreover, the investigators had Sgt. [X]’s post-retirement contact information. The omission to interview Sgt. [X] resulted in the investigation being incomplete.

Third, the record shows that the Appellant gave his PIR Rebuttal to an investigator, but that the Respondent somehow never received, and accordingly could not have considered, that document. The Appellant was entitled to have his case put before the Respondent, and his PIR Rebuttal was a big part of his case. It contained his replies to opposing statements and arguments, clarified one of his own audio statements, and emphasized the importance of speaking to Sgt. [X]. It also presented useful background information and called some of the Alleged Harasser’s statements into question.

The Appellant’s PIR Rebuttal could have added significant context and perspective to an analysis of his harassment complaint. It therefore cannot reasonably be said that the Respondent’s conclusion would have been inevitable had she received an opportunity to turn her mind to that PIR Rebuttal.

The ERC recommends that the appeal be allowed. It further recommends remitting the matter to the member who now occupies the position the Respondent occupied, with a list of specific directions for making a new decision.