Morin v. Canada (Attorney General)

Morin v. Canada (Attorney General)
Collection
Canadian Human Rights Tribunal
Date
2005-10-14
Neutral citation
2005 CHRT 41
File number(s)
T739/4402
Decision-maker(s)
Hadjis, Athanasios
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
JEAN-LUC MORIN
Complainant
- and - CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and - ATTORNEY GENERAL OF CANADA
Respondent
DECISION
MEMBER: Athanasios D. Hadjis
2005 CHRT 41 2005/10/14
I. FACTS
A. Entry into the RCMP
B. Field Training - Months 1 & 2
C. Field Training - Months 3 & 4
D. Field Training - Months 5 & 6
E. First Extension of Field Training - Month #1
F. First Extension of Field Training - Month #2
G. First Extension of Field Training - Month #3
H. Second Extension of Field Training - Weeks 1 & 2
I. Second Extension of Field Training - Week 3
J. Second Extension of Field Training - Week 4
K. Second Extension of Field Training - Weeks 5 & 6
L. Return to Montreal
M. Official Languages Complaint
II. ANALYSIS
A. The Section 7 Complaint
B. Prima Facie Case
C. The RCMP's Explanation
D. The Section 14 Complaint
E. Was the Impugned Conduct Related to the Complainant's Colour?
F. Was the Impugned Conduct Unwelcome?
G. Was the Impugned Conduct Serious or Repetitive Enough?
H. Notification to the Employer
III. CONCLUSION
[1] The Complainant alleges that he was discriminated against on the basis of his colour during his field training as a member of the Royal Canadian Mounted Police (RCMP), and that this discrimination was a factor in the subsequent termination of his employment, in breach of s. 7 of the Canadian Human Rights Act. The Complainant also claims that he was harassed by the RCMP on the basis of his colour during this training, in violation of s. 14 of the Act.
[2] The Complainant and the Respondent were represented by legal counsel at the Tribunal's inquiry into the complaint. Counsel for the Canadian Human Rights Commission read into the record an opening statement on the first day of the hearing and thereafter did not attend nor participate in the hearing process. The hearing itself lasted 51 days and was conducted in Montreal, Vancouver and Ottawa. Thirty-nine witnesses testified.
[3] For the reasons set out below, I have determined that the Complainant's colour was not a factor in his treatment while employed with the RCMP, or in his subsequent dismissal. He found his training very stressful. It was not an enjoyable period in his life. While the employer may have been very demanding of him during his training, I am not persuaded that discrimination based on his colour was a factor in this treatment. I have also concluded that he was not harassed on the basis of his colour.
I. FACTS A. Entry into the RCMP [4] The Complainant is a black man from Montreal. In 1994, he enrolled in a special program administered by the RCMP to train Haitians and Canadians in police technology at the RCMP Training Academy in Regina (commonly referred to as Depot). Haiti was in a transitional political period at the time and the program was established to help the country equip itself with a corps of newly trained police officers. Graduates from the program planned on joining the Haitian force. The Complainant successfully completed the program but for reasons related to his dual Canadian/Haitian citizenship, he was unable to accompany the other recruits to Haiti. He returned home to Montreal from Regina to complete his college-level studies. Having by now developed a profound interest in police work, he applied with earnest to enter the RCMP's recruit training program at Depot shortly after obtaining his college diploma. He passed the numerous entrance exams administered by the RCMP and was accepted into the program in April 1996.
[5] The Complainant opted to begin his instruction as soon as possible, which left him with no choice but to enter the English module. The French training was scheduled to commence several months later. The Complainant's first language is French but he had some knowledge of English at the time. The Complainant worked with bilingual text books while at Depot and with time, his knowledge of the language improved. The training lasted six months and he graduated in October 1996.
B. Field Training - Months 1 & 2 [6] Upon completion of his training at Depot, the Complainant was assigned as a general duty officer to the RCMP detachment in Burnaby, British Columbia, to undergo his field training. This stage in a recruit's professional development is administered under the Field Coaching Program, also known as Recruit Field Training or RFT. It runs for six months. The recruit is a member of the RCMP during this period but the individual faces dismissal if he or she fails to pass the Field Coaching Program. During the RFT, a regular member of the RCMP is assigned to the recruit as his or her coach/trainer. The coach rides patrols with the recruit for most of this period and assesses the new member's performance along the way. Assessment reports are prepared at two month intervals, and by the time the last report is drafted at the six-month point, the recruit must satisfy all of the required criteria in order to pass his RFT.
[7] Burnaby is, of course, a large municipality situated within the greater Vancouver area. An agreement exists between the Government of Canada and the City of Burnaby to have the RCMP provide it with policing services. Burnaby's RCMP detachment is the country's second largest. The Complainant had never visited Burnaby before and knew little about the city. He arrived there on about November 15, 1996, two weeks after graduating from Depot, and was met at the airport by his assigned trainer, Constable (Cst.) John Haney.
[8] The Complainant's first contact with his coach was amiable. Cst. Haney invited the Complainant to stay at his home until the recruit could find his own accommodations. The Complainant began his first shift the day after his arrival. Cst. Haney introduced him to other RCMP employees. He set about helping the trainee find an apartment and a convenient bank branch at which to open an account. Despite this fairly friendly start to their working relationship, the Complainant alleges that within days, he was subjected to discriminatory conduct on the part of Cst. Haney.
[9] The Complainant wanted to purchase a used car as soon as he arrived in Burnaby and had been perusing the classified ads in the newspaper. Many of the ads contained the term OBO, which is an abbreviation for the phrase or best offer in reference to the price being sought. The Complainant was unaware of this acronym, particularly since English was his second language. He mistakenly believed that it was the name of someone in the city who had many vehicles to sell. While riding in the patrol car with Cst. Haney, the Complainant mentioned that he intended to call the person named OBO about purchasing one of his cars. Cst. Haney began to laugh at the Complainant's mistake. The Complainant did not as yet understand why. Later on, they pulled up to a fast food restaurant to have breakfast with several other RCMP officers from the detachment. Cst. Haney told the others about the Complainant's comment and everyone began to laugh. It was at this point that the Complainant learned the meaning of the abbreviation OBO and the reason for the others' laughing.
[10] From that day forward, Cst. Haney and other RCMP members began calling the Complainant by the nickname OBO. The Complainant acknowledges that he tolerated the term for three or four days and that in fact, he was even grinning along with the others as the story about the classified ads was recounted. However, the usage of the name continued to occur months later, and people he barely knew would call him by this name. The Complainant testified that he felt like a buffoon when addressed this way. He alleges, moreover, that the name has racial connotations. Or best offer, he contends, is a term that was used during slave auctions in pre-civil war America, and this particularly offended him.
[11] Cst. Haney recalls the discussion in the patrol car about the classified ads, adding that both he and the Complainant found humour in the latter's mistake. But he insists that there was no racial connotation in his reaction. He merely used the term OBO thereafter as a playful nickname, a sign of affiliation with the rest of the team. According to Cst. Haney, many RCMP officers at the detachment were referred to by nicknames, including himself. This was typical of the camaraderie that existed between them, not unlike the relationship that develops amongst players on sports teams. He adamantly denies the Complainant's ever having indicated expressly or implicitly that he was offended or that the usage of the name was unwelcome. The Complainant either laughed along when addressed that way or did not react at all. Cst. Haney produced a home videotape of a party at his home, which was recorded by Cst. Haney's spouse on November 30, 1996, two weeks after the start of the Complainant's RFT. About a dozen guests can be seen on the tape, including the Complainant. At one point, Cst. Haney's spouse greets the Complainant from behind the camera by saying Hey, OBO, and he can be seen smiling and responding to her greeting with a pleasant demeanour.
[12] The Complainant alleges that another incident of discriminatory conduct on the part of Cst. Haney occurred during the early stages of his RFT. Prior to a briefing session at the detachment, Cst. Haney observed the Complainant greet Cst. Ader Albert, who is also a black individual of Haitian origin. The Complainant claims that Cst. Haney made some gesture with his hands and remarked, Is that how you black men shake hands? The Complainant stated at the hearing that he felt ridiculed by the comment. Cst. Albert testified that he had some recollection of it but that he did not take any offence. He does not recall the Complainant demonstrating any outward objection. Cst. Albert interprets Cst. Haney's statement as his just trying to be funny. Cst. Haney has no recollection of the incident at all.
[13] Over the course of the first two months of training, the Complainant alleges that Cst. Haney started to become excessively critical of his performance and their relationship began to deteriorate. The coach found fault in much of the Complainant's conduct. Speediness in getting to the scene of a call became a point of contention. Cst. Haney disapproved of the time it took for the Complainant to drive to a location. Occasionally, he got lost. The Complainant points out that he had just arrived in Burnaby and had not as yet become familiar with its geography. For this reason, he opted to rent an apartment within Burnaby, just so that he could remain within the city even when off-duty and get to know it better. The Complainant claims that Cst. Haney was impatient in this regard and that he began to use his watch to measure the recruit's response time in getting to the scene of a call. Cst. Haney would become so enraged with the Complainant's performance that he sometimes shouted at him and banged his hands against the car. On one occasion, the Complainant retorted to Cst. Haney that they were both adults and shouting was not called for.
[14] The Complainant says the constant timing by Cst. Haney placed an inordinate degree of pressure on him to perform, which occasionally caused him to make errors. He felt harassed by this procedure. His fellow recruits were not subjected to this type of performance measurement and indeed, virtually none of the members of the RCMP who testified in this case recalled ever having had their driving timed in this manner during their field training, though several acknowledged being told during their RFT that they were taking too long to get to a scene or to execute their other duties.
[15] Cst. Haney agrees that the Complainant expressed displeasure at the stress he was feeling from having his driving skills timed, but the coach maintains that he developed this tool as a mechanism to correct a deficiency in the Complainant's performance. It is important for a police officer to be able to respond quickly and safely to a call. Initially, the Complainant's response times were poor as was his navigation of the city's streets. The time tool proved effective, notwithstanding the Complainant's protests, and within about a month, his response times improved to an acceptable level. Cst. Haney concedes that none of the other recruits being trained by other coaches around the same time as the Complainant were similarly timed. He contends nonetheless that the timing tool he had developed for the Complainant was useful and creative and could prove helpful with other trainees as well. He does not recall any specific instance of having raised his voice or banging his hands over this issue, as alleged by the Complainant. Cst. Haney does not deny that his constructive criticism of the Complainant could have been construed as yelling by the Complainant.
[16] Cst. Haney did not just time how long it took the Complainant to respond to a call. He kept track of how long it took his trainee to prepare police reports. Cst. Haney claimed that the Complainant was spending too much time on reports and that their quality was poor, both in terms of substantive content and form (language and spelling). He began timing him with the same goal of improving his performance. He claims that he had less success with the tool in this regard than he had with respect to lowering the Complainant's call response time.
[17] According to the Complainant, the fact that his report-writing was being timed placed additional stress on him, which in turn affected his output. Moreover, he points out that unlike the other recruits, he was not permitted to write his reports using the computers available at the detachment and in the patrol car. Had he been permitted to do so, he would have been able to make corrections on-screen before printing and verify the text with a spell-checking utility. Instead, Cst. Haney told him to handwrite his reports and often instructed him to rewrite them whenever something was found lacking. Sometimes he had to rewrite them more than once. This naturally ended up consuming even more time. Cst. Haney was also critical of the Complainant's handwriting, insisting that he print his letters and not use cursive writing when filling out forms and reports, or even when entering information in his notebook. The Complainant submits that his handwriting was neat and that these comments were unnecessary. He feels that he was singled out by Cst. Haney and was treated differently from the other recruits. Cst. Haney was of the view that it was important to learn to write reports by hand, as computers were not always available to officers. Neat handwriting was also viewed as essential by him. The coach who had trained Cst. Haney during his RFT had always insisted on these points. Cst. Haney wanted to pass the benefits of this training on to the Complainant.
[18] Another of the tools used by Cst. Haney was a daily logbook. Starting in mid-December 1996, Cst. Haney began recording the Complainant's activities during each shift. At the end of the day, the Complainant would read the logbook and write a self-assessment of his performance on a scale of 1 to 3, from poor to excellent. The coach would then enter his own assessment based on the same scale, following which there would be some discussion about how their respective conclusions were reached. Cst. Haney wrote suggestions on how improvements could be made. On most days, they both gave identical scores, usually a 2. This rating system was used for a little over a month, ceasing only in mid-January 1997. However, Cst. Haney and other senior officers involved in the Complainant's training continued writing summaries of his performance in the logbook thereafter, up until the end of the initial RFT period. Cst. Haney testified that he used the logbook to identify and have the Complainant understand the deficiencies for which improvement was needed.
[19] The Complainant was annoyed by the logbook. Its use began immediately following Cst. Haney's alleged outburst in the patrol car to which the Complainant had voiced his objections. It is his perception that the coach began using the logbook as a way to retaliate against him.
[20] At the detachment's Christmas party, the Complainant had the opportunity to speak to his supervisor, Corporal (Cpl.) Peter Fischer, and complain about Cst. Haney's difficult approach and his yelling. Cpl. Fischer took the complaint under consideration. He consulted his own supervisor, Sergeant (Sgt.) Dwight Watts, and met with Cst. Haney to hear his point of view. The coach explained that deficiencies had been identified regarding the Complainant. Cst. Haney maintained that he was addressing these problems and trying to correct them in a manner that was not overly harsh. After having received this explanation, and mindful that the Complainant had not asked for a new trainer, Cpl. Fischer directed the Complainant to comply with the coach's instructions.
[21] In a separate conversation in early January 1997, Sgt. Watts asked the Complainant if he wanted to change trainers for the balance of his field training. The Complainant turned down the offer. He explained at the hearing that because things were already going so badly for him, he did not want to worsen them by developing an image as someone who flees from a difficult situation. Two other witnesses at the hearing, Cst. Maxime St-Fleur and Cst. Oakland Knight, gave evidence that they requested and were provided with new trainers during their RFT at the Burnaby detachment. Interestingly, both of these recruits were also black and Cst. St-Fleur was a francophone of Haitian origin from Quebec, just like the Complainant. They did not pass their RFT after the initial six-month period and were only successful after having their RFT extended by several months. They are both active regular members of the RCMP today.
[22] On January 20, 1997, Cst. Haney issued the Field Coaching Program Assessment Report for the Complainant at the two-month point. The Complainant testified that he had expected a fairly positive evaluation, based on the entries in the logbook, where the average rating of 2 predominated. Assessment Reports contained a grid listing 28 criteria on the basis of which candidates were rated superior, competent or needing improvement. It came as a shock to the Complainant to learn that Cst. Haney had marked him as needing improvement in ten of the categories. These areas included his ability to define problems, his aptitude at communicating in writing, his knowledge and application of law, policy and procedures, his proficiency at information gathering, and his investigation and evidence gathering skills. His driving and officer safety skills were also noted as deficient, as was his decision-making ability.
[23] The Assessment Report form contained a section where the recruit would provide his own remarks. The Complainant wrote that he agreed with Cst. Haney's comments and that he was willing to improve his English grammar. He added that he appreciated the training given by his coach so far and would do his best to improve his skills in the future.
[24] The Complainant testified that in reality, he did not agree at all with Cst. Haney's assessment of his performance, noting that he was not found lacking in any of the identified areas when he graduated from Depot. Several witnesses remarked, however, that one's achievements within the academic environment at Depot do not necessarily ensure similar success in the real-world environment experienced while training in the field. Cst. Haney testified that in any event, finding a trainee in need of improvement merely meant that some work was required in order for the candidate to meet the required standard. He noted that many of the Complainant's deficiencies were intertwined with one another. For instance, he had observed that the Complainant had a poor knowledge of provincial and municipal statutes and regulations enforced by the RCMP at the Burnaby detachment. This resulted in the making of ill-advised decisions in various areas, such as crime scene investigations and evidence gathering. Cst. Haney pointed out that he had included words of encouragement in the Assessment Report as well. He made the point of writing that the Complainant is an intelligent individual who has the ability to succeed. He also recognized in the report that some of the difficulties experienced by the Complainant in his drafting may have been because English was his second language.
[25] The Complainant was particularly upset that the Report failed to mention any of the positive or commendable acts performed by him during the course of the first two months of training. One incident that stood out related to a patron in a local restaurant where the Complainant and Cst. Haney were also eating on November 27, 1996. The Complainant noticed that the man began choking on some food, and was unable to breathe. The Complainant intervened immediately and applied the Heimlich manoeuvre to dislodge the obstruction, while Cst. Haney called on his radio for an emergency response team. The Complainant's efforts were successful and the patron's life was saved. Following the incident, Cst. Haney merely commented to the Complainant that he had done a good job, by the way, as they sat back down at their table to finish their meals.
[26] Back at the police station, the Complainant claims that Cst. Haney made no particular effort to inform any superior officers about his actions nor were they reported in any official manner to other members of the RCMP at the detachment. Cst. Haney testified that both he and the Complainant recounted the story to their colleagues and supervisors when they returned to the station. But Cst. Haney did not think it appropriate that a memo be drafted up and circulated by him applauding their own deeds. It would have been viewed as self-promotion. Such recognition was better left to their supervisors. Indeed, several days later, following the receipt at the detachment of a letter from the restaurant patron, thanking the Complainant and Cst. Haney for saving his life, Superintendent R.W. Fenske, who was the officer in charge of the Burnaby Detachment, wrote a memorandum commending them for their conduct. A copy of the letter was placed in the Complainant's personnel file. Yet no similar mention of the Complainant's actions was included in the two-month Assessment Report prepared by Cst. Haney.
[27] Interestingly, Cst. Haney's involvement in the incident was specifically mentioned with commendation in his annual performance review, prepared by his supervisor some months later. Cpl. Fischer testified that annual performance reviews differ from RFT Performance Assessments. Annual performance reviews are intended to reflect all of an officer's documented exploits, whether positive or negative. Had the Complainant passed his RFT, the event would have been recorded in his annual performance review as well. On the other hand, Performance Assessment Reports are only concerned with documenting whether a recruit has reached the level of competence in each of the Field Training Standard's 28 criteria.
C. Field Training - Months 3 & 4 [28] Over the next two months, Cst. Haney noted some improvement in the Complainant's skills but he remained dissatisfied with respect to certain areas assessed. The trainer was particularly troubled with the quality of the Complainant's note-taking and report-writing. Cst. Haney had advised the trainee to adopt the trainer's own rather formal style of taking notes. It appears that the Complainant did not emulate this style but evidence was led by other members of the RCMP that ordinarily, officers could adopt their own note-taking method, provided there was sufficient clarity for subsequent use at court proceedings. Cst. Haney remarked that no matter which note-taking method is employed, certain facts must be recorded under all circumstances, and the Complainant was failing to do so, even as he neared the end of his fourth month of training.
[29] On the issue of report-writing, Cst. Haney continued to find that the Complainant had difficulty putting the right information into his documentation and that he took too long to prepare it. Yet Cst. Haney was confident that the Complainant could do better. On at least one occasion when the Complainant was instructed to redo his report, the final outcome was much improved. There are numerous entries made in Cst. Haney's logbook during this period in which he states that the Complainant is capable of achieving success with greater effort. The logbook also documents increasing resistance from the Complainant whenever instructed to redo his work.
[30] Cst. Haney also identified problems relating to the Complainant's decision-making while in the field. The trainer advised that the Complainant needed to augment his knowledge base of law, policy and procedures, in order to improve in this area. Cst. Haney also encouraged the Complainant to ask questions and draw from the experience of others to assist in his decision-making.
[31] The Complainant, on the other hand, disputes these assessments and accuses Cst. Haney of not fulfilling his duty to properly train him. According to the RCMP's Field Coaching Program Training Standard, trainers were expected to interact respectfully with their trainees and establish a positive work relationship. The recruit was supposed to feel comfortable with his or her coach. The coach in turn was to lead by example. Such a rapport never developed between the Complainant and Cst. Haney. The trainer's constant criticisms left the Complainant extremely uncomfortable. He would go to work wondering what else would be found deficient about him that day.
[32] If his skills were lacking in some way, he contends that his trainer did not provide him with sufficient feedback on how to improve them. The Complainant was left to better himself on his own. He therefore enrolled in an English language training course. He began studying the applicable statutes and regulations, and he viewed numerous training video cassettes in his off-hours, usually at the detachment. He often stayed in the office after work. Despite these extra efforts, the Complainant alleges that Cst. Haney did not offer any positive reinforcement. To the contrary, one day in late February 1997, Cst. Haney told the Complainant that the police officer's profession was not for him and that he should consider changing careers. The Complainant replied defiantly that he wanted to succeed and would not resign.
[33] Despite the lack of support from his coach, the Complainant felt confident that with all the extra effort he was expending, his assessment for the second two-month period would improve. Part of his confidence stemmed from the fact that he began patrolling the district on his own starting in late January 1997. He was more relaxed without his trainer next to him, and felt comfortable enough to meet any challenges that he faced. Cst. Haney testified that the Complainant, as is the case with all recruits when they do their first solo patrols, was shadowed by his coach and other officers in separate vehicles during these shifts. Consequently, Cst. Haney backed up the Complainant and arrived on the scene on all but the most routine calls. Cst. Haney recalls that while on these solo patrols, the Complainant on several occasions failed to follow appropriate procedures in responding to calls and investigating incidents.
[34] The four-month Assessment Report, prepared on March 17, 1997, confirmed that the Complainant had improved to the level of competence in several areas, namely his driving and officer safety skills, as well as his abilities to define problems and gather information. But Cst. Haney also concluded that the trainee still needed improvement in his communication skills, and his knowledge of law, policy and procedures. In addition, he needed to improve his skills at taking statements and at taking control of situations when responding to an incident. In all, Cst. Haney deemed the Complainant as needing improvement with respect to six of the 28 criteria, down from the ten cited in the two-month Assessment Report. The trainer encouraged the Complainant to remain positive and determined during the final two months of the RFT, and urged him to devote an extra effort to the development of his skills. Cst. Haney set out a list of activities to assist the Complainant in improving his knowledge of law, policy and procedures, which included attending a series of weekly off-duty tutorial sessions with Cst. Haney.
[35] The Complainant was disappointed with the Report. It was clear in his mind that he was facing an injustice. Despite all his hard work and efforts, his situation was not improving. He was in perpetual conflict with Cst. Haney and it was evident that the trainer wanted him to fail. The Complainant believes that Cst. Haney's intentions were rooted in prejudice against him and his colour. The Complainant says an incident that occurred just prior to the preparation of the four-month Assessment Report confirms his suspicion.
[36] While both he and Cst. Haney were changing into their uniforms in the locker room at the police station one day, the trainer called the Complainant Kirby Puckett Ass. The Complainant claims that he took offence at the remark, actually interpreting the first word as being curvy and viewing it as a reference to the physical features of his lower torso. More importantly, he associated it with certain racial stereotypes regarding persons of African ancestry. The Complainant would only come to learn later on, when he contacted the Canadian Human Rights Commission to file his complaint, that Kirby Puckett is a well-known African-American baseball player. The Complainant testified that Cst. Haney used the term (as well as OBO) numerous times, right until the end of training with this coach, in May 1997. The Complainant says that he never expressly voiced an objection to the term since his career depended on Cst. Haney's assessment and he did not want to risk a confrontation with him.
[37] Cst. Haney does not deny using the term Kirby Puckett Ass, but offers a context for the remark. He and the Complainant, together with several other officers, had been involved in a chase of a suspect on foot and by car through the streets of Burnaby. Cpl. Fischer later issued a memo congratulating all of the officers on their excellent job apprehending the individual. At one point during the pursuit, while Cst. Haney was running after the suspect, the Complainant got out of his patrol car and gave chase on foot as well, behind Cst. Haney. Back at the police station some time later, Cst. Haney asked the Complainant why he chose to leave the vehicle and run behind him. The Complainant answered that he was a faster runner than the coach and it would have been easier for him to catch up to the suspect. Cst. Haney disagreed and they engaged in a back and forth conversation trying to convince each other who is faster. At some point during this discussion, Cst. Haney called the Complainant, in what he described as an ironic, satirical tone, Kirby Puckett Ass.
[38] Cst. Haney was aware that Kirby Puckett is an extremely powerful baseball player known to have a large, powerful torso, who was inducted into the Baseball Hall of Fame because of his athletic talent. His comment therefore related to the running prowess being claimed by the Complainant, whom he viewed as a fit individual of a muscular build and appearance similar to Kirby Puckett's. The sarcastic tone was meant to imply that although the Complainant was claiming to possess the ability of Kirby Puckett, in actual fact he did not. The player's race did not cross Cst. Haney's mind and he never intended to use the term as a racial epithet. Cst. Haney recalls that this conversation was very jovial in nature. In fact, the Complainant turned to another officer walking by and told him what Cst. Haney had just said. The other person replied that this was OK because sometimes we all call [Cst. Haney] `Dumbo', a nickname that alluded to the shape of his ears. When the Complainant heard this, he bent over laughing as he repeated the word Dumbo back to himself several times. Cst. Haney claims that the Complainant called him Dumbo other times thereafter.
[39] Cst. Haney insists that he used the term Kirby Puckett Ass in no more than five instances, and only within days of this discussion in the locker room. He maintains that the Complainant never objected to the use of the term and that had he done so, the trainer would have ceased using it immediately. Overall, according to Cst. Haney, he and the Complainant used nicknames very infrequently, and called each other by their proper first names 99% of the time.
[40] The Complainant claims that Cst. Haney's attitude outside the workplace demonstrated a prejudice against him as well. The Complainant's fiancée, Natalie Cerrato, joined him in Burnaby in late December 1996. She worked at a local sandwich shop as well as at the detachment, as a volunteer. Cst. Haney knew her and yet, when she served him at the sandwich shop a few times or when they sometimes crossed paths at the detachment, he ignored her. Furthermore, aside from a couple of occasions, Cst. Haney and the Complainant never socialized together on their days off work. The coach never invited the Complainant and his fiancée together to his home.
[41] Several RCMP officers testified, however, that it was not necessarily a normal practice for members to develop personal friendships amongst themselves and to meet outside of work. Cst. Haney stated in his testimony that there was always an open invitation extended to the Complainant to visit his home in Coquitlam, and indeed, he had come over several times during the first weeks of the RFT. But Cst. Haney also noted that by the time Ms. Cerrato arrived in Burnaby, his relationship with the Complainant had already become strained at work. It had evolved almost exclusively into a trainer/recruit relationship. There was a separation in their roles, which may have translated into a little additional stress that even extended to his contacts with Ms. Cerrato. Cst. Haney added that he did not recall ever being invited over to the Complainant's home.
D. Field Training - Months 5 & 6 [42] As they entered the fifth month of the RFT, Cst. Haney commenced the weekly law, policy and procedures tutorial sessions with the Complainant, which he had recommended in the four-month Assessment Report. The Complainant acknowledges that these sessions were organized at the coach's initiative. Cst. Haney conducted them at his home, outside of working hours. Both he and the Complainant received an overtime allowance for this activity. The meetings lasted for hours at a time during which they reviewed a multitude of scenarios. The sessions ceased after the third week, probably because Cst. Haney was away from the detachment on training. They never resumed, to the disappointment of the Complainant. Cst. Haney testified that he had not intended to tutor the Complainant to the end of the RFT. The goal was to determine in which areas the Complainant was still deficient, and thereafter it would be up to the trainee to concentrate his studies even further in those areas.
[43] As in the preceding period, the Complainant and Cst. Haney only occasionally worked together in the same patrol car during the fifth and sixth months of the RFT. The Complainant regularly drove solo. He also completed rotations in other sections of the detachment as is required of all recruits.
[44] On April 27, 1997, Cst. Michel Merritt arrived on the scene of a call to which the Complainant, who was working solo, had been dispatched as primary responder. A landlord and a tenant had engaged in a dispute regarding the use of the leased premises, which had developed into a shoving match. Cst. Merritt later criticized the Complainant for concentrating too much on trying to resolve the civil dispute between the parties and not focussing on the criminal assault investigation for which he had been called to the scene to conduct. Cst. Merritt noted this observation in the logbook.
[45] Cst. Haney prepared the final Assessment Report on May 17, 1997. He concluded that the Complainant needed improvement in the same six areas cited in the second report but added that improvement was also needed in a seventh field: records management. The coach provided a detailed narrative with the report, which referenced several incidents in support of his findings.
[46] The concern regarding the Complainant's record management skills stemmed from his difficulty in keeping his files current and responding promptly to requests made by his supervisors, Crown counsel and others. Cst. Haney noted that the Complainant was extremely unorganized and he failed to adopt several suggestions to improve this weakness. Files were often found torn and tattered at the bottom of his duty bag. The Complainant brought the bag with him to the hearing. It is soft-sided and resembles an athletic bag. In my view, it is not a case in which one would ordinarily expect to see files carried.
[47] Cst. Haney noted that he still had some concerns about the Complainant's communication skills in his second language, but was pleased to see that he had enrolled in English courses outside of working hours. Of greater concern was the Complainant's ability to prepare his incident reports and all related documents without undue delay. Cst. Haney found that the reports were often inadequate and lacked the necessary detail, which resulted in their having to be done over, thereby further delaying their completion. According to Cst. Haney, the Complainant still required considerable guidance and supervision in the drafting of documents.
[48] The trainer remarked that the Complainant had notably upgraded his knowledge of law, policy and procedures over the previous months, but further improvement was still needed. Several instances where this deficiency emerged were raised. While the Complainant was on a rotation with another unit of the detachment, a replica handgun was found and seized. There was an initial suspicion that the gun had been used in a series of robberies. The Complainant was assigned the task of processing the item as an exhibit for possible criminal charges. When he returned to the station, he was unable to locate any members of the General Investigation Section (GIS) to whom he was to hand over the gun. So he left it unattended in his office basket for several hours, thereby breaking the continuity of its possession. As things turned out, the initial suspicion regarding the gun's history was unfounded and no charges were laid. But according to Cst. Haney, the Complainant should have conducted himself as if the item was an exhibit. Cst. Haney confronted the Complainant over this matter. There was a strong reaction from the Complainant who protested that the trainer was being overly demanding.
[49] The Complainant testified that he had felt wronged by Cst. Haney's criticism. He had only placed the gun in his basket after having been told by the investigating GIS member back at the crime scene that no criminal charges were going to be laid relating to the gun and that the Complainant should dispose of it. In these circumstances, the continuity of its possession was no longer of any relevance. The Complainant tried to explain these facts to Cst. Haney but the coach refused to accept his explanation.
[50] A similar incident occurred regarding the seizure of a small amount of marijuana