A Tainted and Expensive Report

Hard to imagine, but it may be time to starting to feel sorry for Commissioner Lucki. The bombardment of the RCMP image continues unabated– the latest being the internally commissioned “Final report” by the team headed by Mr. Michel Bastarache. It is sometimes referred to as the Merlo-Davidson settlement on harassment and gender based discrimination.

Bastarache,  a former Supreme Court of Canada judge, has since October 2016 been assigned to oversee the sexual and gender harassment claims process as part of the settlement. As a parting note Bastarache issued this Final Report and in doing so unabashedly took centre fire aim at Commissioner Lucki and the RCMP. 

Titled, “Broken Dreams, Broken Lives” the cover sets the tone found in the pages of the report –featuring a stark image of a clearly distraught woman, hands over face, over a dark background also reflecting a grim and fractured reality.    

The dramatic title and the subsequent press conference were also designed to inflame and garner those action demanding headlines. It served as a justification and delineation of this groups efforts over the last four years and naturally leading to their recommendations. The overriding theme –everything is wrong in the Mounties and it is time for outside direction.

The problem is that Bastarache has jumped from specific privacy protected examples to broad open-ended generalizations. He describes the atmosphere within the Mounties as “toxic”. That the RCMP “tolerates misogynistic and homophobic” behaviour and that what the women told the assessors was so outrageous that it “shocked them to the core”. 

This type of language and allegation demands some level of examination. Journalists as is their practise repeated the allegations to the applause of Ms Merlo and Davidson on the nightly news. A reading and look at the contents of this report suggest that at best this is a highly subjective document and it may even be deeply flawed. 

One needs to understand the process, the people involved and the evidence that was presented. The eventual conclusions that this group arrived at, given the structure of the process and the makeup of the individuals who participated, was both predictable and suspiciously may have been pre-ordained. Cynically, it could even be interpreted as a platform for the eventual transformation of the RCMP as now envisioned by this Liberal government with their current 21st century sensibilities.

This is not to deny or downplay sexual harassment and serious sexual assault as having occurred within the RCMP.  That would be ridiculous. 

The question that needs to be asked is did the results and determinations made in this report, by this group, justify the language and national condemnation of the RCMP?  Does the RCMP deserve to be depicted as an organization locked in a vacuum of unbridled misbehaviour —far beyond what could be imagined or found in other parts of society or other organizations? 

Michel Bastarache  sat on the highest court in this land from 1997 to 2008 and then joined a group of other Supreme Court judges who went into legal practise after retirement. (Beverly McLachlin and Thomas Cromwell are a couple of the others) This judicial “double dipping” is something of a new and somewhat controversial phenomena. It has been discouraged in the past because of some clear conflicts in perception and possible undue influence. 

In fact, Mr. Bastarache did get caught up in one such incident in 2018 —he appeared as a counsel of record for a client— for a case in which he had sat while on the SCC.  In fact, he wrote the majority opinion for the SCC. (Dunsmuir case 2008SC9). He got caught out appearing on behalf of a client but managed to skirt allegations of impropriety as the Law Society rules only state that he could not “personally” appear before the Supreme Court judges. He was allowed to go ahead with the written submissions on behalf of his client. 

Despite this apparent ethical contretemps, Mr. Bastarache enjoys a very lengthy and commendable career coming out of his New Brunswick roots. His legal background for the most part notable for his writings and championing of human rights. That being said, it would be difficult to mistake him as anything but a left-leaning card carrying Liberal. It is also unlikely in this current political climate that the Liberals would appoint anyone who did not at least fit the expected dialogue. 

The Liberal government hires and assigns Bastarache to this four year odyssey. In turn he brings in some like-minded lawyers; some from his previous firms such as Power Law, but all of similar legal backgrounds. The other two official “assessors” were Lynn Smith (named as a “Trudeau mentor” in 2017) and like the second assessor, Marion Allen, were both former Supreme Court of B.C. Judges. Another lawyer on staff was Emily McCarthy —who at one time was the Director of Legal Operations at the Privy Counsel Office in Ottawa. 

Again, there is nothing objectively wrong with their legal background or their capabilities, but one would have to conclude that the predilection of these individuals would be to a very socially left and broad interpretation of the individual cases.  

The group reviewed a total of 3086 claims. This was out of a potential 33,513 female officers, public servants and civilian members who had worked for the RCMP between Sept 1974 and May 30th 2017. (It should be noted that the public servant members of the RCMP have a current class action pending in their own right – represented coincidently by the very same law firms) 

So out of a potential client base —9.2% of all the female employees over the last forty years claimed some form of sexual harassment. 

Of the 3086 female applicants, only 2304 were then forwarded for processing and for consideration of some level of compensation. Therefore, roughly 25% of the initial claims were considered invalid. They explain “a significant number of claims were not compensated because a claimant did not demonstrate sufficient connection to her gender or sexual orientation”. The fact that 25% of those that were applying had insufficient evidence supporting their claims seems worthy of comment. It is not polite to ask, but one has to wonder what the incentive that money brings to these claims; it is a legitimate concern that goes to motive.   

For those that were approved, there were six levels of degree of severity. 

“Minimal”-  possible payment of up to $10,000

“Mild”- possible payment of up to $35,000

“Low Moderate Injury”- possible payment of up to $70,000

“Upper Moderate”- up to $100,000

“Significant Injury”- up to $150,000

And finally “Severe Injury”- with up to $220,000

For their purposes, the Bastarache group interviewed only those they assessed as being in Level 3 or above. 

Under the first two levels, claimants were only required to describe a “sexualized environment” —which could be portrayed as “frequent use of swear words”, “sexual jokes and innuendo”. The definition of harassment included “objectionable art, comment, or display that demean, belittle or cause personal humiliation or embarrassment”. Patterns of egregious conduct included “working conditions”, “disparaging women in general”, and “treating claimants unfairly with respect to training opportunities”.

Even if a claimant had one or two individual incidents and did not meet the threshold for compensation —the group decided that there was a need to consider that the harassment “was systemic” and therefore may still warrant compensation. 

There was a total of 644 individuals who they determined to be Category 3 or higher. This represented 20.86% of the 3086 claimants. If you consider the ratio of the overall female members that went through during those 43 years, this number gets down to a much smaller 1.9%.  

The number which was emphasized in the news was that 130 of the claimants disclosed “penetrative sexual assaults”. This is a number which is initially staggering but this too demands some further dissection. 

The examination of the “evidence” behind these 644 claimants were considered under a set of guidelines and rules, which were stringently and purposefully one dimensional.

a) First and foremost was that the “assessors” were not “required to investigate claims”. The assessment of those claims would be “based almost exclusively on the information provided by the claimant”. 

b) The assessor role was further limited by the fact that there was “no cross examination of the claimants” and that evidence

c) “of the persons whose conduct was culpable was also not available”.

d) The interviews were directed to be conducted in a “non-adversarial” way so as to limit “re-victimization”.

e) Allowances were also to be made for “difficulty remembering key details and specifics” because of the passage of time.

When all these rules were followed then the case would be judged on— a “balance of probabilities”.  No criminal proof needed to satisfy the “substantial likelihood of conviction” or even “beyond a reasonable doubt” was needed in these cases. A “sworn statement” from the victim therefore could constitute almost the sum total of the evidence.

As explanation and in a rather telling bias Bastarache stated that  “I have tried to give the claimants a voice”.  

A total of $125,266,500 was paid to claimants. 

Two legal firms, Klein lawyers and Kim Spencer McPhee received $30,789,975 in fees. (Bastarache does not outline his costs and that of his team over this four year period)

Some of the recommendations based on this uncontested testimony; with no investigation undertaken, or room for a counter narrative were then detailed.

a) Training will include “screening” for “misogynistic, homophobic or racist tendencies in the past”.

b) In the future to get into the training academy you should have “two years of post secondary education”.

c) Those applying from “diverse” groups should have programs in place to “assist them in the meeting the entry requirements”. 

d) Training will need to find a different “esprit de corps”; as the “para-military” nature of the current environment must change. The current climate they say does “not extend to women”.

e) Recruit field training should be changed, so that female officers are no longer exposed to “trainers”, but instead are assigned “mentors”. 

f) There should be a “counselling program” for all the recruits who are part of the current LGBTQ2S+ community. 

g) Postings to remote locations are “detrimental to women”. They believe that for a female to be assigned to one does not offer a sufficient  “social support network”. At those isolated locations they were being forced to “share common housing” and “forced”  to be “reliant on colleagues”. 

Once you are firmly ensconced in the Mounties, according to Bastarache, one must remember that “staffing members” are biased, and that “promotions are fundamentally flawed and unfair”.  

There are many other recommendations, but there is no need to go further. Some of these recommendations should actually offend some female officers.

Do some of the recommendations have merit? Possibly, but if one doubts the accuracy of the findings in terms of the numbers and if incontestable content is the foundation of the eventual recommendations should we assign them any weight?

If the behaviour found in the RCMP,  was applied with the same strictures to other employment groups would the numbers be different? If  for instance one examined the legal community and the Law Societies for the last forty years, would that bastion of male dominance not end up with similar figures to the RCMP? The medical profession? Any profession which for the last number of decades has had a glass ceiling. 

Pick any “Mad Men” era communities and then introduce women to the Type A male component — would they not all have examples of bad behaviour? It doesn’t make it right, but is there no need for context or historical parameters? It was not 21st century appropriate, but were the Mounties any different from any other segment of society?

Unfortunately, Commissioner Lucki has never demonstrated any willingness to question and as a result her executive group have trotted out the classic pathetic –governance by more government solution.

The RCMP will be introducing: “Gender Based Analysis”, they will be establishing an ” Independent Centre for Harassment Resolution”, and instituting a“RCMP Diversity, Equity and Inclusion strategy” to of course, “articulate a firm stance against racism and discrimination”. 

They will be “re-vamping our recruitment process” and the “training model at RCMP academy is under review. They are going to develop; a “Character Leadership Approach”. The evolution of changing bias and gradual acceptance takes time, but time is not a dimension considered in this age of quick fix and tidy political announcements. 

Do I believe that almost all females that have gone through the decades have experienced and could argue for being in Categories 1 and 2?  Yes. Completely. 

Do I believe that the recommendations of this group— based on their interviews of Categories 3 to 6 should be seriously considered? No. This was a complete ivory tower biased exercise. He produced and did what he was paid to do: advocate, not judge.

As I have opined before. If there were serious sexual assaults there should have been criminal charges. Those officers should have been fired as a matter of course and as a first step. This settlement agreement and the  compensatory process allowed a papering over of some serious wrong-doings. A great number of Mounties, some very high placed Mounties, have been allowed to skate with their pensions intact, when they should have never been allowed to wear the uniform. Some are still wearing those uniforms. 

It is all too sad. 

Photo Courtesy of Flickr Commons and Cal Injury Lawyer – Some Rights Reserved

3 thoughts on “A Tainted and Expensive Report

  1. Very well written and absolutely no surprise to me. There is no doubt that some of the claims are founded but when you throw out the ability to validate and verify claims the entire process becomes tainted. If, as some claimants state, there were serious criminal offenses committed then those perpetrators need to be charged with those offenses. To do otherwise is a complete abdication of leadership and calls the entire process into disrepute.

    Like

  2. Great job Peter, nicely outlined and precise. Such a sad time for the force and yes, nobody has been held accountable is shocking.

    Thanks bud.

    Like

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