NC-243 - Harassment

The Appellant gave several media interviews and posted a letter that he wrote to the Commissioner at the time, criticizing RCMP management, on social media. He did this in response to a Canada Labour Code trial in which the RCMP was found guilty of failing to ensure the health and safety of its officers. The Appellant also stopped wearing the yellow stripe on his work trousers and grew a goatee beard to raise awareness about RCMP working conditions. The Alleged Harasser, who was the Appellant’s District Commander, addressed the Appellant’s actions. The Appellant felt that the Alleged Harasser had harassed him by taking certain actions in response to his efforts to express himself and he filed a harassment complaint (Complaint). As part of that Complaint, the Appellant argued that his freedom of expression, his right under subsection 2(b) of the Charter of Rights and Freedoms (Charter), was breached by the Alleged Harasser.

After an investigation, the Respondent issued a Decision, finding that the Alleged Harasser’s actions did not meet the definition of harassment. The Appellant appealed the Respondent’s Decision. He submits that the Decision was reached in a manner that contravened the applicable principles of procedural fairness and that the Decision was clearly unreasonable.

The Respondent’s Decision is clearly unreasonable because he did not grapple with the Appellant’s subsection 2(b) Charter argument, a key component in the Appellant’s Complaint, when considering whether harassment had occurred. In addition, given that the Appellant’s right to express himself was clearly engaged in this case, the Respondent’s failure to address the alleged Charter infringement in the Decision was an error of law.

Supreme Court of Canada jurisprudence emphasizes that when a Charter right applies, an administrative decision-maker needs to clearly acknowledge and analyze that right. In this case, the Respondent was required to analyze the Appellant’s subsection 2(b) Charter argument and incorporate this analysis into his assessment of whether harassment took place.  

The ERC recommends that the appeal be allowed and that the matter be remitted to a new decision-maker for a new decision. In making a new decision, the ERC recommends that the new decision-maker address the Appellant’s concerns that the Alleged Harasser engaged in harassment when he took certain actions towards the Appellant in response to the Appellant’s efforts to express himself. When making the new decision, the Appellant’s arguments about the Alleged Harasser’s alleged breach of his subsection 2(b) Charter right must be addressed. In addition, the new decision-maker should, if possible, obtain a copy of the Appellant’s media interviews, that were the subject of the Alleged Harasser’s actions, in order to do the required Charter analysis as it relates to the Appellant’s media interviews and the Alleged Harasser’s actions in response.