Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill C-38: An Act to amend the Royal Canadian Mounted Police Act and to make consequential amendments to other Acts (short title: Ensuring the Effective Review of RCMP Civilian Complaints Act) was tabled in the House of Commons on 14 June 2010 by the Minister of Public Safety (the Minister), the Honourable Vic Toews.
The bill amends the Royal Canadian Mounted Police Act (RCMPA)1 to establish a new, independent civilian commission – the Royal Canadian Mounted Police Review and Complaints Commission (the Commission) – and to give the force of law to a provisional policy of the Royal Canadian Mounted Police (RCMP) on investigations of serious incidents involving members of the RCMP. The proposed reforms are designed to increase the public accountability of the RCMP.
The bill specifically provides for the following in the RCMPA:
In recent years the need to strengthen civilian review of RCMP activities has been noted on many occasions by various people, including the chairs of the Commission for Public Complaints Against the RCMP,2 Justice Dennis O’Connor (charged in 2004 with reviewing the role of Canadian authorities involved in the case of Maher Arar),3 David Brown (tasked in 2007 with investigating allegations concerning the management of RCMP pension and insurance plans),4 the Privacy Commissioner of Canada5 and committees of both the Senate and the House of Commons.6
A number of investigations into incidents involving members of the RCMP have revealed major shortcomings in the practices and policies of the organization and have done much to undermine public trust in the force. Notable cases are the death of Robert Dziekanski at Vancouver International Airport in 2007,7 the breaches of the human rights of Maher Arar, Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin,8 and the Air India tragedy.9
Two inquiry reports submitted following incidents involving the RCMP, those produced by Justice O’Connor and Mr. Brown, recommended the creation of a civilian review body to review RCMP activities. We shall examine the recommendations of the two reports in the “Description and Analysis” section of this legislative summary, highlighting the similarities and differences between the approach taken in Bill C-38 and that advocated in the two reports.
Since those two reports were published, a number of the parties involved, including committees of the Senate and the House of Commons, have supported the recommendations that emerged from the inquiry conducted by Justice O’Connor. Generally speaking, Justice O’Connor recommended the establishment of a civilian agency to oversee the activities of the RCMP that would be given powers similar to those conferred on the agency responsible for providing civilian oversight of the operations of the Canadian Security Intelligence Service (CSIS) – the Security Intelligence Review Committee (SIRC). Acknowledging the increasing frequency of integrated investigations in the field of national security, Justice O’Connor felt that the new RCMP review agency should be able to share information with SIRC and to carry out investigations jointly with it and the Office of the Commissioner for the Communications Security Establishment Commission.
In the next section, we set out the characteristics of the Commission for Public Complaints Against the RCMP (CPC), the review body that Bill C-38 is designed to replace, and of SIRC, and we discuss the factors that distinguish them.
The CPC was established by Parliament in 1988 as an agency to review and resolve complaints from the public against the RCMP. It is an independent agency that reports publicly to Parliament through the Minister of Public Safety.
The CPC primarily investigates complaints from the public concerning the conduct of members of the RCMP where the complainants are dissatisfied with the manner in which the RCMP has treated their complaint. In short, the CPC ensures that complaints made by the public are examined fairly by the RCMP.
The Chair of the CPC also has, in a limited number of cases, the power to file complaints and conduct investigations on his or her own initiative or to hold hearings in the public interest into the conduct of one or more members of the RCMP. In processing the complaints, the CPC may access “relevant documents” held by the RCMP.
Finally, it must be noted that the Commissioner of the RCMP is not required to comply with the recommendations made in the reports of the CPC.
The Canadian Security Intelligence Service Act10 provides the legislative basis for CSIS and the two bodies that monitor it: the Office of the Inspector General of the Canadian Security Intelligence Service11 and SIRC.
SIRC is the independent external body responsible for reviewing the activities of CSIS and reporting on them to Parliament through the Minister of Public Safety. It has the power to investigate complaints filed by anyone against the actions of CSIS and to review the way in which the agency fulfills its mandate. To this end, it may access any information held by CSIS and by the Inspector General, with the exception of Cabinet documents. It may also conduct investigations on its own initiative.
As is the case with the CPC, the recommendations made by SIRC are not binding.
While SIRC and the CPC have in common the fact that they are both independent bodies, receive complaints from the public and have the power to undertake and conduct their own investigations, there are still major differences between the two agencies.
First, the mandate of SIRC is much broader than that of the CPC. Generally, the latter agency’s mission is merely to receive and investigate complaints concerning failings in the conduct of members of the RCMP, whereas SIRC also has the task of reviewing the way in which CSIS carries out its mandate and performs its functions. In other words, the RCMP – unlike CSIS – is not currently subject to a review designed systematically to determine whether its operations are in accordance with the laws and with ministerial directions. This difference is notable because the power to receive and investigate complaints, while important, is only one of the aspects of a much broader mandate for civilian review.
Second, SIRC has much more extensive powers at its disposal to fulfill its mandate. The most important is its right of access to information. The CPC may access only “relevant documents” in dealing with a particular complaint, and this has been the source of much disagreement between it and the RCMP. By way of comparison, SIRC may access any information held by CSIS and by the Inspector General, with the exception of Cabinet documents.
At the present time, therefore, there is a major difference between the powers of the CPC and those of SIRC. This distinction is hard to justify since both of the organizations subject to oversight – the RCMP and CSIS – have very extensive intrusive powers.
Bill C-38 attempts to bridge this gap. However, we shall see in what follows that the mandate and the powers of access to information of the Commission created by the bill – although more substantial than those of the existing CPC – still seem to be more limited than those available to SIRC.
Bill C-38 makes various amendments to the RCMPA (and to other statutes). We shall consider them as we examine the following points:
The preamble to the bill states that the establishment of a new body for the civilian review of the RCMP is designed to ensure that the public will have confidence in the RCMP, to promote transparency and accountability of law enforcement, to enhance the accountability of the RCMP to provincial governments and to ensure that all Canadians have access to civilian review of the RCMP.
The bill replaces the existing CPC with a new commission enjoying broader powers: the Royal Canadian Mounted Police Review and Complaints Commission (clause 2(2)). It establishes the Commission along similar lines to the CPC with amendments designed to ensure that the Commission is more effective than the CPC. At the present time, the CPC concerns itself with only one aspect of the activity of civilian review – complaints. The bill will give the Commission the power to conduct reviews on its own initiative of specified activities of the RCMP.
The bill does not implement the recommendation of the Brown task force to the effect that the new commission should include the CPC and the RCMP External Review Committee, which is responsible for reviewing grievances, disciplinary matters, demotions and dismissals of members of the RCMP.12 Mr. Brown was of the view that a merger of these two organizations and creation of the new “Independent Commission for Complaints and Oversight of the RCMP” would enable this new commission to better target and deal with recurring problems as well as trends and shortcomings in the policies and procedures of the RCMP, since it would have an overall view of the complaints involving the RCMP, whether they were received from the public or from members of the RCMP.
In accordance with the recommendation of the Brown task force, clause 7 of the bill provides that the Commission shall consist of a maximum of five members – one of whom shall be the chair – appointed by the Governor in Council for a renewable term of not more than five years. The bill also provides that the members of the CPC shall cease to hold office on the date on which the bill comes into force. Current employees of the CPC will continue to hold their positions within the Commission (clauses 29(2) and 29(3)).
The new members must be Canadian citizens or permanent residents and may not have been members of the RCMP (new sections 43.29 and 45.3 of the RCMPA). The existing RCMPA does not expressly prohibit the appointment of a former member of the RCMP.13
The members and staff of the Commission and persons acting on its behalf – for example, experts retained to assist it – will enjoy immunity from criminal and civil proceedings (new section 45.48 of the RCMPA). They will also be required under the Security of Information Act to keep certain information confidential always (clause 28).
Before a member is appointed to the Commission, the Governor in Council must consider the need to ensure that all parts of the country are represented. In its existing structure, the CPC may consist of up to 29 members and must have one representative from each of the provinces to which the RCMP provides policing services (the “contracting provinces”).14
Finally, the Brown task force had recommended that the Act creating the new commission provide for a review of the commission by a special independent committee created by the Minister five years after the Act is passed and every five years thereafter. This committee would have the task of determining whether the new commission was effective and making recommendations concerning the commission’s mandate, its membership and its operations with a view to increasing its effectiveness.15 The bill does not provide for a periodic review of the Commission.
The bill appears to move away from the wording of the recommendations in the Brown task force and the O’Connor commission of inquiry reports concerning the Commission’s mandate.
According to Justice O’Connor’s recommendation, the new commission – referred to in his report as the “Independent Complaints and National Security Review Agency for the RCMP” – should have the power to conduct on its own initiative or on the request of the Minister, “systematic reviews of the activities of the RCMP” concerning national security, as well as deal with complaints from the public.16
The Brown task force, for its part, recommended that the new commission should be given the power to consider any “incident or aspect of the activities of the RCMP.”17
The bill gives the Commission the power to conduct, on its own initiative or on the request of the Minister, a review of “specified activities” of the RCMP. Whether the expression “specified activities of the Force” used in the bill and included in new section 45.34(1) of the RCMPA is as broad as Mr. Brown and Justice O’Connor recommended remains to be seen, since it is not defined in the bill. This lack of a definition could give rise to interpretations that limit the Commission’s powers. For example, the following questions might arise: could the Commission review information-sharing activities, the RCMP’s relations with other Canadian and foreign organizations, and the training of members of the RCMP, as Justice O’Connor suggested in his report?18
By way of comparison, the wording of the Canadian Security Intelligence Service Act appears to give SIRC a broader mandate that allows for a more rigorous review of CSIS.19 Under that Act, SIRC may examine the instructions given by the Minister to CSIS, as well as regulations and arrangements concluded by CSIS with other government bodies, it may collect and analyze statistics concerning the operational activities of CSIS, and it may investigate the public complaints it receives.
The new power given to the Commission will help to ensure that the RCMP carries out its activities in accordance with the RCMPA, the Witness Protection Program Act, the regulations made under these Acts, any ministerial direction given under these regulations, or the policies, procedures or guidelines governing the operation of the RCMP. This having been said, the bill does not implement two of the recomm
Recognizing the increasingly frequent integration of investigations relating to national security, Justice O’Connor specifically recommended the establishment of “statutory gateways” between the new commission, SIRC and the Office of the Communications Security Establishment Commissioner (CSE). These statutory gateways would permit the “exchange of information, referral of investigations, conduct of joint investigations, and coordination and preparation of reports.”22
Finally, we should note that the inclusion of reviews of national security issues would also have been ensured in the model proposed by Justice O’Connor by the creation of a coordinating committee for the integrated review of national security activities consisting of the chairs of the new commission and of SIRC, the CSE Commissioner and an independent person acting as the chair of the committee.
New subsection 45.34(2) of the RCMPA also lays down prerequisites for the exercise of the Commission’s review power that will limit the scope of the civilian review to which the RCMP might be subject.23
Before commencing its review, the Commission must give notice to the Minister indicating that it is satisfied that these three requirements have been met and setting out the rationale for conducting the review (new subsection 45.34(3) of the RCMPA).
The bill does not appear to give the Commission the power to institute public hearings to conduct its review of specified activities of the RCMP, unlike the power it is given to deal with complaints from the public or those brought by its chair (see section 2.2.5 of this legislative summary concerning the Commission’s powers with respect to complaints).
Following a review of specified activities of the RCMP, the Commission may submit to the Minister, the Commissioner of the RCMP and the minister responsible for policing in a contracting province a report that includes its conclusions and recommendations concerning the compliance with the law of the activities of the RCMP as well as the adequacy, appropriateness, sufficiency or clarity of the policies and procedures of the RCMP (new subsections 45.34(1), 45.34(4) and 45.34(5) of the RCMPA).
Finally, new section 45.35 of the RCMPA also permits the minister responsible for policing in a contracting province to request the Minister to ask the Commission to conduct a review of the activities of the RCMP in that province. The Commission will then provide the Minister and the provincial minister with a report containing its conclusions and recommendations concerning the same elements as the report provided for in new section 45.34 of the RCMPA.
In accordance with the recommendations of the O’Connor commission of inquiry, the Commission may conduct research and put in place information and education programs for the public in order to make its role and its activities24 known (new section 45.36 of the RCMPA). The Commission’s rules of procedure will be published in the Canada Gazette,and interested parties may make representations concerning them (new section 45.47 of the RCMPA).
The O’Connor commission of inquiry noted that “[i]n general terms, the most serious inadequacy is that [the CPC] is not able to access all relevant information to carry out its mandate.”25 There are essentially two ways in which the CPC can access information:
The bill states that the Commission “is entitled to have access to any information under the control, or in the possession, of the [RCMP] that the Commission considers is relevant to the exercise of its powers, or the performance of its duties and functions, under this Act” (new subsection 45.37(1) of the RCMPA). It accordingly offers clarification by providing, as recommended by Justice O’Connor,29 that the Commission, and not the RCMP, will determine what information is relevant.
Although the Commission’s right of access to information is greater than that of the existing CPC, the bill sets out the kinds of information to which the Commission’s access is either limited (“privileged information,” new section 45.38 of the RCMPA) or prohibited (new section 45.4 of the RCMPA).
Consequently, the power of access to information set out in the bill is not as broad as was recommended by Justice O’Connor, who would have imposed only two exceptions on the right of access:
Justice O’Connor was of the view that the new commission should not be refused access to any information on the grounds that it was secret or sensitive. He noted that “[f]ull access to all information has worked well in the cases of SIRC and the CSE Commissioner.”32
As part of its duties and functions, the Commission has the right to access privileged information (new subsection 45.38(2) of the RCMPA).33
New subsection 45.38(1) of the RCMPA defines “privileged information” as “information that is subject to any type of privilege that exists and may be claimed.” The provision also contains a list of some of the information that may be considered privileged:
Nevertheless, in the event that the Commissioner of the RCMP refuses to give the Commission access to this information, the bill includes a conciliation mechanism (new section 45.39 of the RCMPA). At the request of the Commission, the Minister will appoint a former judge of the superior court of a province or of the Federal Court or an individual who is a member of a category of individuals prescribed by regulation.34 After reviewing the information in question and taking certain criteria into account,35 the conciliator will provide his or her observations regarding the privileged nature of the information and the relevance and necessity of the information to the matter before the Commission.
After these observations are received, the Chair of the Commission and the Commissioner of the RCMP must review their respective decisions to request access to or to refuse to disclose the information. If no agreement can be concluded at this point concerning access to the information, the parties may then apply for judicial review, but this may be done only after the former judge or other individual has made his or her observations.
Under the bill, when the Commission is allowed to access privileged information as part of any of its duties or functions (e.g. to review a complaint), it may not use the information for any other purpose (new section 45.41 of the RCMPA). Also, it may not disclose this information to anyone other than certain persons listed in new subsection 45.45(2) of the RCMPA, such as the Minister or the Attorney General, if the information is required for criminal proceedings.36 Any breach of this obligation will constitute an offence punishable by imprisonment for a term of not more than five years (new paragraph 50.3(a)of the RCMPA). The head of a federal government institution will also be required, under the Access to Information Act, to refuse to disclose documents containing privileged information (clause 15).
When the Commission prepares a document or a report for distribution, it must first consult and obtain the approval of the Commissioner of the RCMP in order to ensure that the document does not contain privileged information (new section 45.42 of the RCMPA). Any breach of this obligation will constitute an offence punishable by a maximum fine of $5,000 or imprisonment for not more than six months, or both (new section 50.2 of the RCMPA). Finally, the members and staff of the Commission must have appropriate security clearance from the federal government (new section 45.43 of the RCMPA).
New section 45.4 of the RCMPA lists five types of information to which the Commission may not have access at any time. They are:
New subsection 45.4(2) provides that if such information is nevertheless disclosed to the Commission, the Commission may not use it.
Like the Chair of the existing CPC, the Chair of the Commission must submit an annual report to the Minister on the activities of the Commission, including his or her recommendations. Furthermore, the bill provides that the Commission must submit an annual report to each minister responsible for policing in a contracting province. This report must indicate the number and subject of all complaints arising in the province, how the complaints were disposed of and any trends that emerge (new subsection 45.5(2) of the RCMPA).
The bill also provides that the Commission may, on its own initiative or at the request of the federal Minister, submit a special report on any subject relating to the Minister’s powers, duties and functions (new section 45.49 of the RCMPA). It should be noted that, as for SIRC, only annual reports will be tabled by the Minister in Parliament.
It was the view of the O’Connor commission of inquiry that the existing process for dealing with complaints against the RCMP provides “a sound and flexible framework for the investigation and resolution of complaints.”39 The commission of inquiry accordingly recommended that the existing system be kept, albeit with improvements.40 The provisions of the bill are also designed to serve this purpose, since the bill retains the existing structure of the complaint resolution process. It will therefore still be the RCMP that initially investigates the complaint, subject to the power of the Commission to do so itself, if it considers this necessary or in the public interest.
New subsection 45.51(1) of the RCMPA permits “any individual” – which thus includes any member or employee of the RCMP – to make a complaint concerning the conduct of a member of the RCMP or other person appointed or employed under the RCMPA in the performance of any duty or function. As the Brown task force recommended,41 an individual may make a complaint concerning former members of the RCMP who have retired, resigned or joined another police force, if they were members of the RCMP “at the time that the conduct is alleged to have occurred.” Moreover, the bill, like the existing process, permits the Chair of the Commission to file a complaint.42
At the present time, the Commissioner of the RCMP has the right to refuse to deal with a complaint, particularly where it could be more appropriately dealt with in accordance with another procedure or where the complaint is trivial, frivolous or vexatious or made in bad faith.43 New subsection 45.51(2) of the RCMPA gives the Commission the same discretionary power.44 Furthermore, the Commission – just like the Commissioner of the RCMP (new paragraph 45.59(1)(a) of the RCMPA) – may refuse to deal with a complaint if the complainant is not an individual at whom the conduct of the member of the RCMP was directed, is not the guardian for or any other person authorized to act for the person at whom the conduct was directed, did not see or hear the conduct or its effects because he or she was not present when the conduct or its effects were experienced, has not been given written permission from the individual at whom the conduct was directed or has not suffered loss, damage, distress, danger or inconvenience as a result of the conduct. Existing subsection 45.35(1) of the RCMPA permits any member of the public to make a complaint “whether or not [he or she] is affected by the subject-matter of the complaint.”
The bill also imposes certain time limits on the complaint resolution process. Thus, the complaint must be made in the year after the conduct is alleged to have occurred or within any longer period if the Commission considers that there are good reasons for the delay and it is not contrary to the public interest (new subsections 45.51(3) and 45.51(4) of the RCMPA). As at present, complaints may be filed with the Commission, the RCMP or the organization responsible for reviewing police forces in the province where the complaint originates. However, unlike the situation that currently exists, where only the Commissioner of the RCMP must, under the RCMPA, be informed of all complaints,45 the bill provides that the three bodies mentioned above will be informed of complaints received, regardless of which body actually receives them (new subsections 45.51(5) and 45.51(7) of the RCMPA).
The complainant may at any time withdraw his or her complaint by sending a written notice to the Commission (new section 45.53 of the RCMPA). The Commission must then inform the Commissioner of the RCMP and the body responsible for receiving complaints from the public in the province in which the conduct is alleged to have occurred. Even where a complaint is withdrawn, it may still be investigated or be the subject of a hearing by the RCMP or the Commission.
As in the existing system, the Commissioner of the RCMP must, with the consent of the complainant and the member of the RCMP or any other person in question, attempt to reach an informal resolution of the complaint (new section 45.54 of the RCMPA). Statements made as part of such a resolution are inadmissible in court proceedings, except in the case of proceedings for perjury, contradictory evidence or false or misleading statements. The Commission must be informed of the informal resolution, which must be recorded in writing. Moreover, the Minister may make regulations designating certain categories of complaints that may not be the subject of informal resolutions.
The O’Connor commission of inquiry recommended that the informal resolution process be retained but also that it be possible to postpone the process or not use it if the circumstances surrounding an investigation relating to national security justified this.46 Since the complainants in cases involving national security often do not have all the required information concerning the conduct of the police services when they file their complaint, Justice O’Connor suggested that the use of this alternative method be delayed until the investigation into the police action had been conducted. The complainants would then have all the information they require before the resolution was concluded.
In cases where it is not possible to conclude an informal resolution, the complainant (or guardian, other person authorized to act for the individual at whom the conduct was directed or a person who has that individual’s consent) may make representations to the Commission about the consequences suffered as a result of the conduct of the member or employee of the RCMP. The Commission will then inform the RCMP, and the representations may be used in the application of disciplinary measures under Part IV of the RCMPA. The RCMP must keep the person who made the representations informed of the progress and findings of the investigation. This person will be informed of the decision and any disciplinary action to be taken against the member of the RCMP (clauses 5 and 6).
New section 45.58 of the RCMPA provides that the Commissioner of the RCMP may order the RCMP to investigate any complaint. However, an investigation or hearing by the Commission will take precedence over the investigation by the RCMP. Indeed, if the Commission decides to investigate or to institute a hearing into the complaint, the RCMP may not conduct an investigation into the complaint.
As at present, the Commissioner of the RCMP must, if he or she is of the opinion that such a measure will not harm any other investigation, keep the complainant and the person whose conduct is the subject-matter of the complaint informed of the status of the investigation (new section 45.61 of the RCMPA). However, the investigation itself will be conducted in private (new subsection 45.58(2) of the RCMPA).
Following the investigation, the Commissioner must provide the complainant and the person whose conduct is the subject-matter of the complaint with a report containing a summary of the complaint, the findings of the investigation and the action that has been or will be taken with respect to the resolution of the complaint (new section 45.62 of the RCMPA).
A complainant who is not satisfied with the decision of the Commissioner of the RCMP to refuse to deal with his or her complaint or with the Commissioner’s investigation report may refer his or her complaint to the Commission for review. The bill states that the complainant will have 60 days to submit, in writing, his or her application for review (new subsection 45.68(1) of the RCMPA).
As at present, the Commission may, after reviewing the complaint, ask the RCMP to further investigate, conduct the investigation itself or institute a hearing or provide the Minister and the Commissioner of the RCMP with a written report setting out its findings and recommendations (new subsection 45.69(3) of the RCMPA). The bill provides, as does the existing section 45.46 of the RCMPA, that once the Commissioner of the RCMP has received this report, he or she will be required to provide a written response to the Minister and the Chair of the Commission. This response must mention any further action that has been or will be taken with respect to the complaint. If the Commissioner decides not to accept the conclusions and recommendations set out in the report, he or she must give reasons for this decision (new section 45.7 of the RCMPA).
After reviewing the Commissioner’s response, the Commission must prepare a final report on its conclusions and recommendations and send it to the Minister, the Commissioner, the complainant, the person whose conduct is the subject-matter of the complaint and the minister responsible for police forces in the contracting province in which the conduct is alleged to have occurred, as the case may be. However, the bill does not indicate any time limit for the sending of the response by the Commissioner of the RCMP to the Minister and the Chair of the Commission, which could cause substantial delays in the processing of complaints from the public.
The provisions of the bill correspond with the recommendation of the O’Connor commission of inquiry, as do, in fact, the existing provisions, that the reports of the new commission should not be binding but that the Commissioner of the RCMP should always be required to respond to them.47 However, Justice O’Connor felt that, in the interests of transparency, reports on complaints should be made public after deletion of personal information and confidential information relating to national security.
We should note, finally, that the Brown task force recommended that the conclusions of the new commission concerning grievances and disciplinary measures should be binding on the Commissioner of the RCMP.
The bill, like the existing RCMPA, permits the Commission to open its own investigation or to institute a hearing into a complaint, either when a complaint is reviewed (new paragraph 45.69(3)(c)of the RCMPA), or when the Chair of the Commission feels that such action would be in the public interest (new section 45.64 of the RCMPA). The bill states that the Commission may merge several complaints for its investigation or the hearing (new section 45.66 of the RCMPA).
Investigations will be conducted in private (new subsection 45.64(3) of the RCMPA), while the hearings will, as a rule, be public (new subsection 45.71(6) of the RCMPA). At present, however, the CPC may order that all or part of the hearing take place in camera if it feels that certain sensitive information will probably be disclosed. This includes:
The bill essentially retains these three existing reasons for ordering that a hearing be held in camera and adds two other reasons that give the Commission a broad discretionary power:
Furthermore, the bill permits the Commission to order that all or part of a hearing take place in the absence of one of the parties. An in camera or ex parte hearing may be ordered on the initiative of the Commission or on the request of any party or any witness.
The bill accordingly increases the number of circumstances in which hearings may take place in private. It could be said that the question arises as to whether the balance between the principles of confidentiality and transparency in judicial proceedings that is sought in the bill is appropriate.49 Although Justice O’Connor recommended that the new commission be able to order in camera hearings in an effort to protect the confidentiality of matters connected with national security, ongoing police investigations and the identity of police sources,50 he also recommended that the new commission have the power to appoint independent counsel to determine the need to maintain the confidentiality of certain information.51 This counsel would have been able to check the information that could not be disclosed to the complainant or the public and have made representations on behalf of the excluded parties. This recommendation was not addressed in the bill.
On the conclusion of the investigation or hearing, the Commission must provide the Minister and the Commissioner of the RCMP with a written report setting out its findings and recommendations. As in the case of a complaint referred to the Commission, the Commissioner must then give a written response to the Minister and to the Chair of the Commission, and the Chair of the Commission will subsequently prepare a final report (new section 45.74 of the RCMPA). The conclusions and recommendations set out in this final report and in the final report of the Commission on conclusion of its review of a complaint are not subject to appeal or review by any court, except judicial review under the Federal Courts Act (new section 45.75 of the RCMPA).
At present, only the powers of the CPC in relation to the handling of complaints that are the subject of a public hearing are set out in the RCMPA. In such cases, existing section 45.45(4) of the RCMPA provides that the CPC may, for example, summon witnesses and order that documents be produced.
Bill C-38 clarifies the Commission’s powers regarding all its functions relating to complaints – that is, reviewing a complaint, opening its own investigation or instituting a public hearing (new subsection 45.63(1) of the RCMPA).52 In dealing with complaints, the Commission may administer oaths, summon witnesses and compel the production of documents in the same way as a superior court of record,53 as well as receive evidence, whether or not it would be admissible in a court of law. Mr. Brown and Justice O’Connor noted in their separate reports that the powers to compel organizations or individuals to produce documents and to testify were important in any civilian review of law enforcement activities.
According to the bill, a person may not refuse to answer a question asked by the Commission or to produce a document or thing on the grounds that it might be incriminating to do so. However, as in the process of informal resolutions of complaints, the answers and things produced will be inadmissible in the courts, except in the case of prosecutions for perjury, contradictory evidence or false or misleading statements (new subsections 45.63(2) and 45.63(3) of the RCMPA).
Failure to appear in order to testify or to produce the documents requested by the Commission constitutes an offence punishable by a maximum fine of $5,000 or a maximum term of imprisonment of six months, or both (new section 50 of the RCMPA). A person who utters threats, obstructs another person who is carrying out a power, duty or function, makes any false or misleading statement or destroys or falsifies a document will be liable to a maximum term of imprisonment of five years (new section 50.1 of the RCMPA). We should note that the bill increases the maximum penalties currently provided for some of these offences.54
In order to respect the principle of the independence of the police and that of not unduly disturbing or influencing ongoing investigations and criminal prosecutions, the O’Connor commission of inquiry recommended that the new commission should have the power to stay its activities if there was a risk of interfering with these investigations or prosecutions.55 The bill implements this recommendation by providing that the Commission must, on its own initiative or on the request of the Commissioner of the RCMP, suspend a review, investigation or hearing concerning a complaint if its members believe that its continuation would prejudice an ongoing criminal investigation or ongoing criminal proceedings (new section 45.72 of the RCMPA). The bill also gives this power to the Commission in the case of ongoing civil proceedings.
Furthermore, as was recommended by the Brown task force,56 the bill permits the Commission to conduct a review, investigation or hearing jointly with another similar civilian review body – for example a provincial body that oversees policing – if the complaint relates both to the conduct of a member of the RCMP (or of any other person appointed or employed under the RCMPA) and to that of an officer responsible for reviewing law enforcement by any other public entity in Canada or abroad (new subsection 45.73 of the RCMPA).
This provision may prove useful, because the RCMP participates in many integrated operations with other police forces. However, it does not appear to apply to the civilian review of integrated operations involving the RCMP and organizations responsible for national security that have, rather than a mandate to enforce the law, a mandate to collate and analyze security information (e.g., CSIS).
The O’Connor commission of inquiry had recommended instead that the new commission have “authority to conduct joint reviews or investigations with SIRC and the CSE Commissioner [responsible for civilian review of CSIS and the CSE respectively] into integrated national security operations involving the RCMP.”57 To ensure that there is rigorous civilian review of activities integrated with national security, Justice O’Connor recommended that the new commission also be responsible for reviewing the activities of the Canada Border Services Agency – a federal agency that is not currently subject to any permanent civilian review mechanism.58
Under the existing RCMPA, the RCMP may itself conduct investigations of its members who are involved in serious incidents, and it also has a discretionary power to entrust such investigations to other police forces. In February 2010, however, the RCMP adopted a provisional policy applying to such cases: the External Investigation or Review Policy. The bill gives this policy the force of law.
In its report dated August 2009, the CPC recommended that the RCMPA be amended to permit the new commission to “refer the investigation to a police force other than the RCMP or to another criminal investigative body in Canada.”59 The Brown task force had also recommended that the new commission be given this power.60 The bill provides that this power to refer an investigation to an independent body should instead be exercised by a “designated authority” of the government of the province where the “serious incident” is alleged to have occurred (new section 45.8 of the RCMPA).
New subsection 45.8(1) of the RCMPA provides a definition of “serious incident.” It is an incident in which the actions of a member of the RCMP, any other person appointed or employed under the RCMPA or any person assisting the RCMP in carrying out its power, duties and functions under the RCMPA:
The bill states that where the actions of a member of the RCMP lead to the death of a person or to “serious injury,” a body other than the RCMP must investigate. A fuller understanding of the impact of this provision will be had once the Minister assigns a definition of “serious injury” in the regulations. In addition, the fact that “serious injury” has not been defined more precisely in the bill could cause delays in the application of the new provision. For all other “serious incidents” (i.e., other than those resulting in death and those falling within the future definition of “serious injury”), the Minister, the Commissioner of the RCMP or the provincial minister will determine, in the public interest, whether a body other than the RCMP must investigate.
Where a serious incident involves a member of the RCMP (or any other person assisting the RCMP or any other person appointed or employed under the RCMPA), the designated authority may appoint an independent provincial investigative body. Alberta and Ontario have established independent bodies with responsibility for investigating serious incidents involving police officers.61 If there is no investigative body in the province where the serious incident is alleged to have occurred, the designated authority may appoint another police force to investigate. The RCMP must then refer the investigation as soon as possible to the investigative body or the other police force, as the case may be (new section 45.81 of the RCMPA).
If for any reason the designated authority does not appoint an investigative body or police force, the RCMP must ask any other provincial investigative body or police force to investigate the serious incident. However, it is not always possible for such a body to investigate because of its workload or a lack of resources. Thus, if the investigative body or police force refuses to investigate and the RCMP feels that there is no other investigative body or police force that can do so, the RCMP itself must investigate. In that case, the RCMP must provide the Commission with a report on all the reasonable efforts it has taken to find an investigative body or other police force (new section 45.82 of the RCMPA).
In March 2007, the CPC put a pilot project in place in which members of its staff were assigned to observe and assess the impartiality of investigations into serious incidents conducted by the British Columbia Division of the RCMP. In September 2008, the CPC and the RCMP made this program official. The bill provides for the possibility of appointing such observers.
Indeed, the designated authority or the Commission may appoint an observer if the investigation of a serious incident is conducted by the RCMP itself or by another police force (new section 45.83 of the RCMPA). The bill does not indicate who may be appointed as an observer or set out the criteria the observer must take into account in assessing the impartiality of an investigation.62 However, the Minister may make regulations setting out the criteria for the appointment of observers, the scope of the observer’s role and the reporting obligations of observers (new section 45.87 of the RCMPA). Moreover, an observer will not have a right of access to “privileged information” (new section 45.86 of the RCMPA).
The observer must report on the impartiality of the investigation and send the report to the Chair of the Commission, the Commissioner of the RCMP and the chief of the other police force that conducted the investigation, as the case may be (new section 45.85 of the RCMPA). If the report raises concerns as to the impartiality of the investigation, the Commissioner or the chief of police, as the case may be, must provide – within a time to be determined by regulation – the Chair of the Commission with a written response containing a statement of the measures that have been or will be taken by the RCMP or other police force to allay these concerns.
If the Chair of the Commission is not satisfied with these measures, he or she must report on the matter to the Minister, the provincial minister responsible for policing and the attorney general of the province where the serious incident is alleged to have occurred. Note that the observer may be compelled to testify in any civil, administrative or criminal proceedings (new subsection 45.83(6) of the RCMPA). Finally, if the investigation is carried out by the RCMP and no observer has been appointed, the Commissioner of the RCMP must provide the Chair of the Commission with a report on the measures taken to ensure that the investigation is conducted impartially (new subsection 45.83(4) of the RCMPA).
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
(2.7 Mb, 636 pages) in December 2006. [ Return to text ] (2.7 Mb, 636 pages) in 2006, was designed to determine (1) whether the incarceration of the parties in question in Syria and Egypt was the result, directly or indirectly, of the actions of Canadian officials, (2) whether there had been shortcomings in the provision of the consular services by Canadian officials to the parties in question during their incarceration, and (3) whether any of the torture administered to them was the result of the actions of Canadian officials. Justice Iacobucci’s report was submitted in October 2008. It did not include any recommendations. [ Return to text ] (2.7 Mb, 636 pages), December 2006, p. 552. Under agreements, the RCMP provides policing services in all the provinces (except for Quebec and Ontario) and all the territories. [ Return to text ] (2.7 Mb, 636 pages) (2006), recommendations 3(a) and 3(d), pp. 516 and 529. [ Return to text ]© Library of Parliament
