The Federal Court has set aside a Canadian Human Rights Tribunal decision that dismissed racial discrimination complaints from three RCMP officers who alleged they were denied promotions because of their race.
The court found the tribunal misapplied the legal test for proving discrimination and failed to properly consider key evidence, including expert testimony on systemic racism and statistics showing underrepresentation of racialized officers in senior ranks.
The three applicants — a constable, a sergeant and a corporal — worked in the RCMP’s covert surveillance unit in the Greater Toronto Area. All identify as visible minorities and filed separate complaints after being denied promotions between 2016 and 2019.
The constable, who joined the RCMP in 1991, was unsuccessful in several promotion attempts over 30 years. He testified he was called a racial slur on his first day and observed racist comments about racialized communities. The corporal applied twice for team leader positions in 2016 and 2018, losing both times to white colleagues he had trained. The sergeant applied for a staff sergeant role in 2019 after 17 years with the force.
After a 15-day hearing in 2023, the tribunal dismissed all three complaints, finding the officers failed to prove race was a factor in the promotion decisions.
Burden of proof reversed
The court ruled the tribunal fundamentally erred by conflating two distinct steps in discrimination cases. Under established law, complainants must first establish a prima facie case by showing they have a protected characteristic, experienced adverse treatment, and their characteristic was a factor in that treatment. Only if this threshold is met does the burden shift to the employer to justify its conduct.
“By conflating the Applicant’s burden to prove a prima facie case with the RCMP’s onus to provide justifications for their selection processes, the Tribunal effectively placed a higher burden on the Applicants than required by the jurisprudence,” the court found.
The tribunal repeatedly assessed whether the RCMP’s explanations were a “pretext for discrimination” before determining if the officers had established their initial case — effectively requiring them to disprove the employer’s justifications rather than simply establish an inference of discrimination.
“The Tribunal converted the burden of the RCMP to prove their justifications into an onus on the Applicants to disprove them,” the court stated.
This approach was particularly problematic for systemic discrimination cases where evidence is rarely direct or explicit, the court noted.
Expert evidence dismissed
The court also found the tribunal failed to meaningfully engage with expert testimony from a Canada Research Chair in Systemic Racism, Technology and Criminal Justice.
The expert testified that police surveillance of racialized communities creates an “us vs them” dynamic, that negative racial perceptions influence how officers view racialized colleagues’ abilities, and that white officers receive more informal mentorship creating favouritism in promotions.
The tribunal accepted the expert’s general conclusions but found her report unhelpful because it did not directly address the specific unit and cited studies from other jurisdictions.
The court ruled this approach misunderstood the purpose of social context evidence, which provides a frame of reference for deciding factual issues rather than opinions on specific facts.
“The Tribunal narrowly and unreasonably focused its analysis on the articles cited by the expert, as opposed to the expert’s evidence about the role of bias within policing, the very issue that the Tribunal qualified the expert to opine upon,” the court found.
Statistical evidence ignored
The tribunal also failed to consider statistical evidence showing persistent underrepresentation of racialized officers in promotions, the court found.
The officers testified they had not seen or heard of any visibly racialized member promoted within the unit in 30 years. An RCMP strategic analysis report showed only one Black, Indigenous or person of colour member was promoted between 2015 and 2020, and included analyst comments about perceived bias in the process.
The tribunal never mentioned this evidence in its decision, making it unclear whether it considered the statistics at all, the court found.
Employment equity policy misinterpreted
Finally, the court ruled the tribunal erred in accepting the selection officers’ interpretation of employment equity requirements without considering contradictory evidence.
The officers who made promotion decisions testified employment equity could only be considered as a tiebreaker between equally qualified candidates. However, the head of the RCMP’s promotion unit testified employment equity could be considered among all shortlisted candidates who met job qualifications.
The tribunal accepted the selection officers’ interpretation without acknowledging the contradictory testimony or explaining why it preferred their view over RCMP policy documents that supported the broader interpretation.
The court remitted the matter to a different tribunal member for reconsideration and ordered the Attorney General to pay the officers $2,500 in costs.
For more information, see SM v. Canada (Attorney General), 2025 FC 1893 (CanLII).
