Friday, March 12, 2010

Federal Court Overturns RCMP Discrimination Case

Law enforcement accountability applies to all areas of law including labour law. The following is a decision I came across that relates to the RCMP. More specifically, it identifies concerns regarding discrimination and the attrition rate of cadets.

In Canada (Attorney General) v. Tahmourpour, the Federal Court overturned the Canadian Human Rights Tribunal's ruling that an Iranian-born Muslim RCMP cadet was singled out for harsh and discriminatory treatment by his trainers on the basis of religion, national or ethnic origin, and race, contrary to the Canadian Human Rights Act. The judge found that the Tribunal made errors of fact and law in reaching its conclusions, and sent the matter back to be heard by a different Tribunal member because he found some of its findings to be unreasonable.

In October 1999, Ali Tahmourpour was dismissed from the training program prior to completing it, and a note was placed in his file to the effect that he should never be permitted to re-enroll. He filed a complaint in 2001 with the Canadian Human Rights Commission alleging that his unsuccessful career as a cadet was due to violations by the RCMP of the anti-discrimination provisions of sections 7 and 14 of the Canadian Human Rights Act.

The Tribunal found that the effect of the RCMP's policy with respect to dress and hygiene and the instructor announcing to the group that there was an exception to the rule for Mr. Tahmourpour's religious pendant was to adversely differentiate him on the basis of his religion. His instructor also, watched Tahmourpour sign his name on a form from right to left in the Persian style that he learned as a child in Iran, and asked, "What kind of f**king language is that, or is it something that you've made up?" the Tribunal found that it was more likely than not that Corporal Boyer treated racialized cadets differently and more negatively than White candidates. It also found "it more probable than not that Corporal Boyer was verbally abusive and hostile towards Mr. Tahmourpour at least in part on the basis of his race, religion, ethnicity or national origin."

The Tribunal ordered the RCMP to offer Tahmourpour an opportunity to enroll in the next available cadet training program and awarded him a package of compensation for lost salary and other damages that his lawyer estimated could in total exceed $500,000, as a remedy. The RCMP applied to the Federal Court of Canada for judicial review of the Tribunal's decision, alleging serious errors of fact and law.

Justice Zinn agreed with the RCMP that "the Tribunal erred in law in holding that a complainant's own perception of differential treatment is sufficient to find there was discrimination." He held that "[a] finding of discrimination must require more than just a complainant's own perception that he has been identified as different. If it were otherwise, there would be no need to adjudicate complaints as every complaint would be well-founded because every complainant perceives that he or she has been treated differently on the basis of one or more of the prohibited grounds of discrimination." I propose that this “something more than perception” is social context evidence. Courts need to look at the experiences of other racialized cadets, and truly understand the “culture” at the RCMP.

The Tribunal attempted to look at the bigger picture in accepting the statistical evidence showing that the attrition rate for racialized cadets was 16.98% while only 6.88% for White cadets. The statistical evidence was criticized by Justice Zinn because he believed that the Tribunal erred in applying this statistical evidence to Mr. Tahmourpour's situation without considering that the data “was not adjusted for cadets who left training for personal reasons, i.e. family illness, injury, medical conditions, a change of mind” and whose contracts were not terminated by the RCMP. “The only evidence that the Tribunal ought to have considered was that of visible minority candidates who were in the same position as Mr. Tahmourpour – those whose contracts were terminated by the RCMP.”

Is the assumption that racialized cadets leave training for personal reasons at a higher rate than White cadets in order to account for this huge discrepancy? Assuming the assumption is correct, is it not reasonable to conclude that racialized cadets are leaving the RCMP training because of personal reasons, i.e. stress, depression, and “change or mind” because of discrimination?

Posted by Qadira Jackson (Windsor Law, 2008)

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