An employment and human rights lawyer says organizations like the RCMP are exploiting a “loophole” to prevent employees in federally regulated workplaces from taking their cases directly to the Canadian Human Rights Commission.

The Canadian Human Rights Act allows the commission to deny complaints if the complainant “failed to exhaust” the review process that was reasonably available to them.

“At this point it’s a loophole that’s getting abused by organizations to indefinitely stall people’s right to access justice and hold them accountable for their breach of human rights,” said lawyer Kathryn Marshall.

“It’s totally unfair that people can’t access our court system or human rights court system because of this … I think that provision needs to be struck entirely.”

The federal government has been willing to make changes, but only for members of the military.

Earlier this summer, the Department of National Defence (DND) announced that members of the Canadian Armed Forces now have the option of taking their grievances directly to the civilian Canadian Human Rights Commission, even if they haven’t exhausted the military’s internal grievance and harassment mechanism.

The change came about in response to a recommendation from former Supreme Court justice Louise Arbour, who was tasked with reviewing the culture within the Canadian Armed Forces following a wave of sexual misconduct allegations against senior officers.

Marshall pointed out that the RCMP has been called out over a toxic workplace culture and has had to pay out millions of dollars to Mounties who experienced sexual assault and harassment on the job. A 2020 independent report investigating harassment in the RCMP concluded that change cannot come from within the institution and must be initiated from the outside.

Marshall said she wants to see the Canadian Human Rights Act amended to allow complainants to bring their complaints forward to the commission if their employers have failed to address them “within a reasonable period of time.”

Otherwise, she said, “the complainant gets locked into this never-ending, years-long process and nothing ever happens. And the problems get swept under the rug.

“I call it no man’s land.”

Client’s grievance took years to be settled

One of Marshall’s clients, Lindsay Carter, said she worked in the RCMP’s forensic lab for 20 years. She said her battle with the force’s internal systems left her feeling distressed and alone.

“The process seems to be broken and not genuine, despite assertions otherwise,” Carter said.

“The institutional betrayal there is just huge.”

In 2019, she said, she suspected a colleague in the lab had lied during training and was dishonest, and reported her suspicions to her superiors.

“That honesty and integrity piece is very, very foundational, especially when you’re training someone to take the witness stand,” Carter said.

Carter said that when she took those concerns up the chain of command, they were dismissed initially because she had previously taken a medical leave.

“I was called unwell. I was called not right. And she referred to my medical history,” she said.

She said she was told by her manager to drop the matter but instead took it to a professional standards officer.

In December 2019, she said, the colleague she complained about charged after her in the workplace and screamed at her.

“I thought I was going to be physically assaulted at that point,” she said.

Internal documents show her colleague made allegations of his own, claiming Carter was obsessed with him and was amassing a file on him.

The matter has been tied up since January of 2020, she said.

“They’ve shunted me off into this grievance process,” Carter said. “There’s no end to end in sight to that.”

RCMP won’t comment on possible changes

CBC reached out to her colleague for his side of the story, who forwarded the request to RCMP communications.

It said it can’t comment on individual cases and did not respond to CBC’s questions regarding the process.

A spokesperson for Public Safety Minister Dominic LeBlanc was non-committal when asked if the department would follow DND’s lead and allow RCMP employees to take their cases directly to the commission.

“We will work to ensure that every member of the RCMP feels safe and respected,” said Jean-Sebastien Comeau.

He also pointed to the Independent Centre for Harassment Resolution (ICHR), which was set up by the Liberal government to handle harassment investigations involving the RCMP.

Carter, who has since left the RCMP, said the new program doesn’t adequately address her concerns

“It’s only preventative for next time. There’s no personal accountability or like, ‘Hey, we’re going to take this person out of this workplace so you can go to work,'” she said.

A spokesperson for Justice Minister Arif Virani said the special process for CAF members was set up through joint planning by National Defence and the Canadian Human Rights Commission.

“As such, it would be up to the individual sectors, such as the RCMP, if they would consider such direction,” said Chantalle Aubertin.

The Canadian Human Rights Commission said it has decided not to deal with 37 complaints it has received over the past two years because the complainants failed to exhaust their employers’ internal grievance processes first.

Commission spokesperson Véronique Robitaille said the number is low because the commission tries to explain the act to complainants first.

Robitaille said the CHRC considers each case on an individual basis.

Carter said she’s hoping to get her matter “out from under the RCMP bell jar.”

“For me … it’s reclaiming my voice,” she said. “I don’t trust the organization to deal with the issues.”