Public Safety Committee on May 29th, 2007

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I understand.

When you ask the RCMP for information, how long does it take on average for them to give you an answer?

[Paul E. Kennedy]

That has improved through the years. It has improved recently, relative to the history of the organization, and I'll put that in the following context. The organization had historically had a backlog, and when I came on board, the first case I signed was in the commission for six years and was a ten-year-old fact situation.

We have changed that. We have no backlog and we handle our cases with a service standard of 120 days on average. We set a target this year that we would get 80% of our cases dealt with within 120 days.

With my vice-chair—we've been there for 16 months—we've eliminated that backlog entirely. It's been the most productive year in the past 15 years of the commission. What it has identified for us is that on average we're taking about 97 days from the time we get a complaint to the time we get a resolution, and about 60-some-odd days within that cycle would be to get the information from the RCMP, on average.

There are other cases that are more complex. A case dealing with the witness protection program falls into that area of complexity, because now you're looking at information that is protected, and you have to get the consent of the individual.

So at this point in time, I can tell you that we deal with 80% of the files within 120 days, and it takes about 60 days to get material from the RCMP. The other 20% is more complex and can take more time, particularly if there's anything that is covered by any kind of privilege that requires a discussion.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Do I understand that all your requests for information to the RCMP must be made in writing?

[The Chair, Conservative, Garry Breitkreuz]

That will have to be your final question. Go ahead.

[Paul E. Kennedy]

The process is that when we receive a request for a review by us, we notify the RCMP that we have gotten a request, and we ask them then to forward to us any of what's called the relevant material that would have been considered by the RCMP in the first instance when they were adjudicating on the appeal. We ask them, and then they will forward it to us in due course.

As I said, the nature and the scope of it could be fairly extensive. We have the authority by law to conduct our own investigations or to order further investigations if we're not satisfied. Our concern traditionally is clearly about the adequacy of the investigation in the first instance and whether the material is sufficient.

One of the concerns I have is the ambiguity of the current legislation as to who decides what is relevant. There have been discussions in the past in which the RCMP has taken the point of view that they decide what is relevant and provide to us that which is relevant.

I have a different point of view. I think for credible civilian oversight, the civilian oversight agency decides what is credible and what is relevant to our determination. That is still an ongoing issue in troublesome cases.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

We'll now move over to the NDP, to Mr. Comartin, please, for seven minutes.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

Thank you, Mr. Kennedy and Mr. McNabb, for being here.

Mr. Kennedy, your predecessor was publicly highly critical of the lack of cooperation she got from the RCMP in her role. Have you run into similar problems? Expanding that question, could you also comment on what you see? Is it better than it was when your predecessor was there, is it the same, or has it gotten worse?

[Paul E. Kennedy]

I'd say it's better. I'm very familiar with the comments of my predecessor. I think it's different.

What I've endeavoured—and this is not to make a contrast, because I just prefer to speak for myself—is to professionalize the relationship with them and to find out, if someone is not giving me information, whether it is just because they're being obstreperous or because there is a reason for it.

I think, actually, the Federal Court of Appeal ruling was effective, in the sense of saying that they have a legal right to do it. What I prefer to say, rather than saying the RCMP is being difficult, is that I have a legislative mandate that causes a problem for both of us in terms of, do I have a right or not? If I say I have a statutory right to that information, the same information that I might ask for, the Information Commissioner, or Privacy Commissioner, or the Auditor General can ask for and get it because they've got a statutory power. You either give it to me, or I'll issue a summons to you to appear and testify under oath, or I'll issue a subpoena to you to produce the documents. I can only use those powers if—if—I call a public hearing, and those are extremely expensive things to do. So I need to have the power, as these other federal review bodies do, short of that.

So I'd say the relationship is productive, but it's hindered by the current legislative mandate, where if they have something they don't want to share because it's a confidence and they're concerned about disclosure, it's problematic.

To show how we do have cooperation, one of the serious issues in the public domain is clearly the police investigating the police, the issue of whether it is, and can be, impartial. I've had serious cases in British Columbia, currently in the paper, where I have outstanding complaints. In response to that, the police and RCMP in British Columbia—and there are some 7,200 RCMP officers providing 70% of the policing in B.C.—have worked with me on an ad hoc basis to create what we call an observer program, where we will go at first instance with them, if there is a police shooting or homicide, to look at it and make sure that the criteria and everything put in place are such that they are impartial. We're not to be there when witnesses are being investigated, but to make sure, though, that the team has no connection with the individual who did the shooting, that it is at the right level of experience, that the response is appropriate, and things of that nature. That is something new—the commissioner's directive to afford, to the extent that you can, full and liberal cooperation with us, subject to the statutory problems.

We've had issues in terms of policy. We have a concern about the use of tasers. We have a concern about the use of police dogs, in terms of the lack of clarity for the police about when you use these things in terms of the use of force. I've found cases where the taser is being used in stun mode, I think, as a come-along tool—and it is quite painful. So in those areas, they have sat down with us and are now giving us access to some of the operational policies and are getting some advice from us.

I do have a serious problem, though, with one issue that I think would be important to you. I do two things: I can make factual findings, and I make recommendations. Currently our factual findings are increasingly being challenged by the commissioner. If I find a credible complainant over an officer, I make certain findings based upon that. I have encountered in that one area a significant push-back in terms of their saying, we disagree with you. And there's a re-weighing of credibility, and things of that nature.

Again, the commissioner has taken the view, from her legal advice in terms of the interpretation of statute, that she can do that. To me, that is highly problematic in terms of the credibility of civilian review in this country, because under our model, if you complain as a member of the public, the complaint in the first instance goes to the RCMP. The RCMP conducts the investigation. The RCMP generally makes the first ruling, and then only if the person is dissatisfied do they come to us. We do a review and we can have further information. It then goes to the commissioner, and if the commissioner substitutes or reassesses the findings, you're undermining the credibility of the organization, as you don't then have to follow our recommendations because you have disagreed with our findings.

[The Chair, Conservative, Garry Breitkreuz]

I just have to remind you we're dealing with the witness protection program today.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I was just about to bring him back to that, Mr. Chair. Thank you.

Specifically on the witness protection program and the act, and the restrictions in there on disclosure of information, you get specific claims when you're dealing with complaints about the witness protection program that they can't disclose the information, and they use the legislation as their basis for refusing to disclose information to you.

[Paul E. Kennedy]

I indicated that I have one right now where that is a problem. But they are actually working with us and trying to get the individual to waive...in other words, to get the individual to consent, and therefore, they would say there's no problem with the statutory prohibition because the individual has consented.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

That is the individual who's in the program, not the complainant.

[Paul E. Kennedy]

In this case, the individual in the program is the complainant.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

This investigation that's going on from this committee at this point, Mr. Kennedy, was triggered by a case in British Columbia. The family in that case want additional information. Have you had complaints of that nature; that is, from family members of victims of crimes committed by somebody who was in the program?

[Paul E. Kennedy]

I have had none brought to my attention of that nature. I can have our people review the files we have to see whether there is anything of that nature.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Would you do that and provide it to the committee, one way or the other—whether you find it or not?

Coming back, historically, since the act has been in force, has the claim that “we can't disclose” altered in any way, or have they consistently taken the same position as to what they can disclose to you or to your predecessors under this particular program?

[Paul E. Kennedy]

I can't tell about the past, because I haven't consulted with my predecessors.

But I think the case that went to the Federal Court probably brought to light that there may have been information that was not being shared—and maybe not identified as not being shared. It's like not knowing what you don't know. You get what you think is the relevant material, but if someone has held back information because they believed it was privileged or confidential or would damage an ongoing investigation, you may never see it. The assumption would be that you're getting all the relevant material.

That case, I think, threw light onto the idea that there perhaps is a concern there. The court ruled as a quid pro quo that the RCMP can claim their exemption, but they have to identify that they have information in respect of which they're claiming exemptions. That brought clarity to the problem.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

How recent was that decision?

[The Chair, Conservative, Garry Breitkreuz]

We'll have to move on to the government side here right away.

Also, when you answer this question, what's the name of the court case?

[Paul E. Kennedy]

It was two years ago. I have the case here; it's in English and in French. It's the Federal Court of Appeal. It was heard in May 2005, with judgment in June 2005. I brought along English and French versions. They are published reports in the Canadian Journal of Administrative Law and Practice.

[The Chair, Conservative, Garry Breitkreuz]

And the name?

[Paul E. Kennedy]

It's just the Royal Canadian Mounted Police Public Complaints Commission v. Attorney General. The identity of the individual obviously is not disclosed.

[The Chair, Conservative, Garry Breitkreuz]

Right.

Mr. Comartin, did he answer your last question?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I just wanted to know when the decision was, so yes, he did.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

We'll move over to the government side now.

Mr. MacKenzie, please.