NC-181 - Harassment

The Appellant filed a harassment complaint (Complaint) alleging that a coworker (Alleged Harasser) had, among other things, uttered a threatening comment at a work function. The Appellant specified that the Alleged Harasser wrongly accused the Appellant of behaving in an inappropriate way and commented that she ought to “beat up” the Appellant. The investigators interviewed the parties and multiple witnesses. One witness recalled hearing the Alleged Harasser utter the threatening remark.

The Respondent concluded that the Alleged Harasser did not commit harassment and, therefore, that she had not offended the RCMP Code of Conduct (Decision). In the Respondent’s opinion, the above-noted behaviour was a single, isolated incident that was not harassing. She explained that:

• the Alleged Harasser offered evidence that she “did not intend to carry out the threat”;
• there was no evidence that the Alleged Harasser was “so infuriated with the situation that she intended to carry out the threat”;
• the Alleged Harasser voiced the threat privately and in confidence to a friend; and
• the Alleged Harasser’s alcohol consumption may have contributed to her lack of judgement.

The Appellant presented two main arguments on appeal. First, the investigation was insufficient because it gave rise to inconsistencies that the investigators did not try to clear up. Second, the Respondent erred in determining that the above-noted behaviour did not amount to harassment.

The ERC found that the Appellant could not properly challenge the adequacy of the investigation for the first time on appeal. A party must raise a procedural fairness concern at the earliest reasonable moment. This moment occurs when a party is aware of the relevant information, and it is sensible to expect them to raise an objection. The Appellant’s earliest reasonable moment to object to alleged evidentiary inconsistencies was in her response to the investigators’ Preliminary Investigation Report. At that time, she would have known who was and was not interviewed, what they were and were not asked, and if there were inconsistencies. She could have taken issue with those things in her response, a key purpose of which was to address the completeness of the report and, by extension, the investigation. She did not point to any perceived inconsistencies at that time. It would therefore be inappropriate to entertain her concerns about such inconsistencies on appeal.

However, the ERC found that the Respondent erred in law in concluding that the alleged behaviour was not harassment. An RCMP decision maker must assess a harassment complaint by applying an objective “reasonable person test”. That is, they must ask what the “reasonable person” who is well informed of the circumstances, and who finds themself in the same place as the complainant, would believe. Yet, the Respondent used the Alleged Harasser’s intent as the basis for evaluating whether alleged behaviour amounted to harassment. The Respondent did this by focusing on what she thought the Alleged Harasser meant to do, and on factors that may have shaped that intention. This was erroneous. Given the Respondent’s conclusion that the alleged behaviour was a single, isolated incident”, it was essential to ask if a reasonable person would believe that the incident was one of the rare, solitary incidents that could have been harassment. This required considering if the Alleged Harasser’s threat was “so severe that it had a serious and lasting impact” on the Appellant. The record contained abundant, unaddressed evidence that could have helped inform that analysis.

The ERC recommends that the appeal be allowed. It further recommends:

• granting the Appellant’s request for an apology for errors made vis-à-vis her Complaint; and
• that the Respondent’s successor make a new decision in which they properly apply the reasonable person test when considering whether the alleged behaviour was harassment.