Bill C-42 (Historical)

Enhancing Royal Canadian Mounted Police Accountability Act

An Act to amend the Royal Canadian Mounted Police Act and to make related and consequential amendments to other Acts

This enactment enhances the accountability of the Royal Canadian Mounted Police by reforming the Royal Canadian Mounted Police Act in two vital areas. First, it strengthens the Royal Canadian Mounted Police review and complaints body and implements a framework to handle investigations of serious incidents involving members. Second, it modernizes discipline, grievance and human resource management processes for members, with a view to preventing, addressing and correcting performance and conduct issues in a timely and fair manner.
It establishes a new complaints commission, the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police (CRCC). Most notably, it sets out the authority for the CRCC to have broad access to information in the control or possession of the Royal Canadian Mounted Police, it sets out the CRCC’s investigative powers, it permits the CRCC to conduct joint complaint investigations with other police complaints bodies and it authorizes the CRCC to undertake policy reviews of the Royal Canadian Mounted Police.
It establishes a mechanism to improve the transparency and accountability of investigations of serious incidents (death or serious injury) involving members, including referring the investigations to provincial investigative bodies when possible and appointing independent civilian observers to assess the impartiality of the investigations when they are carried out by the Royal Canadian Mounted Police or another police service.
It modernizes the Royal Canadian Mounted Police’s human resources management regime. In particular, it authorizes the Commissioner to act with respect to staffing, performance management, disputes relating to harassment and general human resource management.
It grants the Commissioner the authority to establish a consolidated dispute resolution framework with the flexibility to build redress processes through policies or regulations. It provides for a disciplinary process that will empower managers or other persons acting as conduct authorities to impose a wide range of conduct measures in response to misconduct and that requires conduct hearings only in cases when dismissal is being sought.
It also contains a mechanism to deem certain members as being persons appointed under the Public Service Employment Act at a time to be determined by the Treasury Board.

[Thomas Ullyett]

Thank you, Mr. Chair, and members of the committee.

We're proud to appear before the committee. We're particularly proud because our member of Parliament, Ryan Leef, is a member of your committee.

The comments I make this afternoon are on behalf of Mike Nixon, Minister of Justice and Attorney General for the Yukon. Minister Nixon has asked me to make the remarks that follow.

I should say two things at the outset.

First, our comments today are of a more general nature. They are not technical comments on the amending bill, as such, on Bill C-42. We don't have any particular difficulty with the amending provisions as provided in Bill C-42.

Second, our comments are not particularly lengthy, but I'll provide, if I could, Mr. Chair, a brief opening statement.

The Government of Yukon is in support wholeheartedly of the changes that are found in Bill C-42. We are in support largely because the concerns that we've seen across the country in relation to the RCMP are concerns that are found in the Yukon as well.

We did our own policing review and issued a public report two years ago, in December 2010, called “Sharing Common Ground”. Many of the findings in that report, and the recommendations, dovetail with the changes in Bill C-42, so we are very much in support of the effort that Parliament is making in this regard.

Mr. Chair, I should just stop there and ask how long you're anticipating I would have for opening comments.

[The Chair, Conservative, Kevin Sorenson]

I call the meeting to order.

Good afternoon, everyone.

This is meeting 55 of the Standing Committee on Public Safety and National Security, on Monday, October 29, 2012. This afternoon we'll continue our consideration of Bill C-42, An Act to amend the Royal Canadian Mounted Police Act.

On our first witness panel we have, from the Government of Yukon, by video conference from Whitehorse, Mr. Thomas Ullyett. He is the assistant deputy minister of legal services.

Welcome. I trust you can hear us loud and clear?

[Dominique Valiquet]

That part is a consequential amendment, so it's not really part of the bill. It's just modifying some wording, because Bill C-42 creates a new commission. That part, which is called the ship-rider part, was already adopted by Parliament in Bill C-38, so this is already law. Bill C-42 is just making some consequential amendments.

To address your second issue on joint investigation cross-border, maybe you can find your answer at section 45.95. I can read the first paragraph, “If a complaint concerns the conduct of a designated officer,” for example an RCMP officer who is working cross-border with the FBI, or DEA, or cross-border law enforcement—an American officer—the new commission created by Bill C-42 may “conduct an investigation, review or hearing of that complaint jointly with an authority that is responsible for investigations, reviews or hearings with respect to complaints from the public against law enforcement officers in any relevant jurisdiction, whether in or outside Canada.”

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

Thank you, Chair.

First of all, I would like to thank you Mr. Allmand, Ms. Robichaud and Ms. Séguin, for being here today. We greatly appreciate your comments on Bill C-42. My questions pertain to Ms. Robichaud and Ms. Séguin's work, and their opinion of Bill C-42.

I know that you have done a great deal of work on sexual harassment in the workplace. You have mainly focused on helping people who are not unionized and your work has been done on an individual basis. I am certain this is greatly appreciated by people who enjoy less protection under labour standards.

You mentioned Bill C-42's inadequacies and lack of firmness. In your opinion, handling harassment complaints in the workplace should be an obligation and not an option, as is currently the case. It will remain so since the commissioner will still have the power to decide whether or not to implement the internal review committee's recommendations.

Do you believe Bill C-42 does not take sexual and psychological harassment cases seriously enough? Would it be possible to go to greater lengths in order to treat this problem more seriously?

[Candice Bergen, Conservative, Portage—Lisgar, MB]

I'm happy that you brought that up. There are a couple of things that I think are important.

First of all, whether it's in a private workplace, a government organization, or a small business, it's important to have certain procedures in place to deal with harassment of all kinds. There should be zero tolerance for harassment, whether it's sexual harassment, racial harassment, sexual-orientation harassment, or any other kind. Strong businesses and private and public organizations have policies in place to deal with that.

What's happened under the RCMP is that the complaints process is so onerous. It's a very long process. Direct supervisors cannot deal with issues like this when they arise, and that's been a huge problem. What Bill C-42 does is it modernizes the whole system. It gives direct supervisors an ability to deal with it.

My concern with your suggestion is that if we start pulling out different types of harassment and try to deal with them in a piece-by-piece way, we would not be dealing with the foundational premise, which is that all harassment is wrong.

I wonder if you could comment on that, the idea that no harassment should be tolerated. If we start to break it up, it could become confusing, or we might miss a piece.

[Warren Allmand]

Mr. Chairman and members of the committee, I am here today on behalf of the International Civil Liberties Monitoring Group, which is a pan-Canadian coalition of civil society organizations that was established in the aftermath of the September 11, 2001 terrorist attacks.

This coalition brings together 40 international development and human rights NGOs, unions, professional associations, and faith groups. Its purpose is to monitor the impact of anti-terrorism legislation on human rights standards, and to advocate against abuses and violations. The ICLMG was an intervener in the Arar inquiry, the Iacobucci commission, and we appeared before the Supreme Court of Canada in the security certificate case relating to Adil Charkaoui.

Our comments in response to Bill C-42 are based on our experience before the Arar commission, and the findings and recommendations set out by Judge O'Connor in his two reports following his inquiry into the Arar incident.

In his first report, tabled in September 2006, Judge O'Connor found that Maher Arar's detention by U.S. officers in New York in 2002, and his surreptitious transfer by them to Syria a few days later, where he was imprisoned and tortured for approximately one year, was in large part due to the negligence of the RCMP who incorrectly labelled Mr. Arar as an Islamist extremist linked to al-Qaeda, and then irresponsibly shared this inaccurate information with American authorities. Judge O'Connor was especially critical of the RCMP for its failure to gather and verify correct information, for its sharing of inaccurate information, and for its inadequate direction and oversight of the investigation team.

In his first report, Judge O'Connor made 23 recommendations to correct these failures and shortcomings. In his second report, dated December 2006, also to correct the problem cited above, Judge O'Connor proposed a new review agency for the RCMP, and a new review process for five other federal agencies carrying on security and intelligent activities.

As a result of his inquiry, Judge O'Connor discovered that there were 24 federal agencies in Canada involved directly or indirectly in the security and intelligence business, the principal ones being CSIS, the RCMP, Communications Security Establishment Canada, Canada Border Services Agency, Transport Canada, DFAIT, DND, Immigration Canada, the PCO, Justice, and the Coast Guard. He discovered that there were 247 agreements by which intelligence information was shared internationally and within Canada.

In addition, he found that there were an increasing number of joint intelligence operations known as INSETs, integrated national security enforcement teams, made up for example of CSIS, the RCMP, provincial police forces, and municipal police forces. With all this sharing and with all these joint operations, it is easy to understand how errors and mistakes by the RCMP and other agencies might escape review and go undetected. The problem is that the existing review bodies—the CPC, the Commission for Public Complaints, SIRC for CSIS, the CSE commissioner—have different, limited powers and mandates, which in each case are only directed at a single agency. Therefore, how do you get at problems resulting from joint operations and sharing arrangements?

Some of these review bodies have the power of subpoena and some do not. Some have the right to audit and others don't. Some, such as the Canada Border Services Agency, have no review body whatsoever. This leaves us with an impossible situation where issues and violations can easily fall between the cracks.

In chapter 10 of the second report, Judge O'Connor asked the question, “Is the status quo adequate?” He said, “Categorically, no”. He said that the RCMP internal controls were not adequate. The existing powers of the Commission for Public Complaints, CPC, were not adequate, and the powers of other accountability bodies were not adequate. He therefore proposed a new body to replace the RCMP's CPC, to be known as the independent complaints and national security review agency. The name doesn't matter. For what you're proposing in this bill, that name would do as well. The purpose of this new body would be to review the RCMP and the Canada Border Services Agency, with increased powers to audit and to investigate complaints.

He also proposed that SIRC be given additional powers to review the security and intelligence operations of Immigration Canada, DFAIT, Transport, and FINTRAC, in addition to CSIS. He leaves the CSE commissioner as is to review the activities of the Communications Security Establishment. However, to coordinate these three bodies, to review all national security practices, and to make sure that nothing falls between the cracks, he proposes an integrated national security review coordinating committee.

Mr. Chairman, and members of the committee, six years after O'Connor's two reports, we have Bill C-42. Since it is a very large and complicated bill, some 120 pages, amending nine major statutes, I have not had the time to examine and analyze all parts of the bill. Therefore, today I will deal specifically with those issues raised by the Arar commission, that is, the work done by the RCMP and others in security and intelligence, and especially in joint operations such as the INSETs. I will deal with both joint operations and sharing within Canada, as well as cross-border.

There are two parts of the bill that might be relevant in this respect. Proposed section 45.75 states:

45.75 (1) If a complaint concerns the conduct of a member or other person appointed or employed under Part I and a law enforcement officer of any other jurisdiction, whether in or outside Canada, the Commission may conduct an investigation, review or hearing of that complaint jointly with the authority in that other jurisdiction that is responsible for investigations, reviews or hearings with respect to complaints against law enforcement officers. (2) The Governor in Council may make regulations respecting investigations, reviews or hearings conducted jointly under subsection (1).

The problem is, do the words “any other jurisdiction” include the other review authorities under federal jurisdiction, such as SIRC, the review agency for the CSE, and so on? That has to be clarified. I say that because most of the RCMP joint operations include two or three of the other federal security authorities. I remind you that Judge O'Connor found that there were 24 of them. Does the application of this article regarding joint reviews, the purpose of which is good, extend not only to provincial and non-Canadian authorities, but also to the other authorities under federal jurisdiction?

What about those federal agencies, such as the Canada Border Services Agency, which has no review or oversight whatsoever? How do we investigate joint operations between the RCMP and CBSA, of which there are several? Judge O'Connor said that the new review agency should deal with both the RCMP and CBSA.

As a result, this article may require amendments and clarification. We should also know more about what the government means by “regulations” under proposed subsection 45.75(2).

In the same vein, we should seek clarification of part VII.2, starting with proposed section 45.88 and following. This part is entitled “Review of Integrated Cross-Border Law Enforcement Operations”.

First of all, in reading the bill, I can't quite understand the relationship of these proposed sections with proposed section 45.75 to which I just referred. Will these sections, for example, allow the new civilian review and complaints commission, CRCC, to investigate, review, and hold hearings on cases like those of Arar, or El Maati, Almalki, and Nureddin, who were dealt with under the Iacobucci commission?

I read the minister's testimony before this committee, and it is my view that the minister should be invited back to the committee and asked to clarify these articles that I've referred to about joint reviews—joint reviews within Canada and joint reviews cross-border--and, if necessary, propose amendments.

I think the government had the right intention in mind in allowing for joint reviews with other oversight bodies, but those sections are not clear at all. There must be clarification. Maybe amendments will be required.

The cases studied by Judge O'Connor and Judge Iacobucci should not be overlooked and forgotten. Judge O'Connor spent three years. Judge Iacobucci spent two years. They used millions of taxpayers' dollars to look into these cases. They cannot be ignored.

I would like you to remember that Judge O'Connor was able to get to the bottom of the Arar tragedy because he had full powers to look at all agencies, joint operations, and all information-sharing agreements. If this new CRCC is to do its job correctly, it must have similar powers.

Thank you very much, Mr. Chairman.

[The Chair, Conservative, Kevin Sorenson]

Excuse me, madam, our time is somewhat limited here, and we're just coming up to the 10 minutes. I know you have a section dealing specifically with Bill C-42.

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone. This is meeting number 54 of the Standing Committee on Public Safety and National Security.

It is Wednesday, October 24, 2012. This afternoon we are continuing our consideration of Bill C-42, an act to amend the Royal Canadian Mounted Police Act .

We have two witnesses before us today. Hon. Warren Allmand is a spokesman for the International Civil Liberties Monitoring Group, and he was also a former solicitor general here in Canada.

Yvonne Séguin is the executive director of Groupe d'aide et d'information sur le harcèlement sexuel au travail de la province de Québec. We welcome you here. Madame Robichaud is a board member of the said group. Welcome.

We look forward to your opening comments. Mr. Allmand, you know how the process works. We hope you will be open to some questions after your opening statement.

[Jean Rousseau, NDP, Compton—Stanstead, QC]

But should it not do so? After all, it is in fact that issue that forced the drafting of Bill C-42. People want to change the culture, they want to establish some kind of ethics, a code of conduct thanks to which there will be fewer problems of that type in future.

[Jean Rousseau, NDP, Compton—Stanstead, QC]

My next question is for Mr. Jolicoeur. Perhaps I will come back to you afterwards, Mr. MacMillan.

Mr. Jolicoeur, I would like to talk about gender equality within the RCMP, where harassment cases did in fact lead to the creation of Bill C-42. Tell me not only how this bill will correct the perception that people now have of the culture within the RCMP, but also how the work environment needs to change attitudes within that police force. At first blush, there is no incentive, for example, to have women promoted to higher levels. And yet, that could have had a direct impact on the culture. Once again, regarding promotions and things of that nature, all discretionary power is being left in the hands of the commissioner or Treasury Board

What is your opinion on that, Mr. Jolicoeur?

[Jean Rousseau, NDP, Compton—Stanstead, QC]

Thank you, Mr. Chair.

I would like to start with Mr. MacMillan.

Should the amendments to the act proposed in Bill C-42 be adopted, are the provisions of the RCMP Code of Conduct sufficient to make the management of complaints more transparent?

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Does Bill C-42 create that balance, in your opinion?

[C/Supt Craig MacMillan]

There are factors to be taken into account in the individual case but it's not necessarily automatic termination. It was when I started on the job, but medical evidence has become more and more predominant in the processes and in what happens.

We recently had a case of a senior NCO who was dismissed as a result of a shoplifting case. When you get into intent and what was evolving, PTSD, post-traumatic stress disorder, there are factors coming in. As a profession, policing needs to do a better job in general on how we respond to misconduct. I was surprised when I looked into it. In one major department on the west coast, impaired driving can get you a reprimand. In another department, maybe in central Canada, it can get you suspended for 45 days, and it might get you demoted. In the RCMP it's going to average seven to 10 days' suspension without pay.

Policing in itself does not necessarily have an agreed-upon approach to specific types of sanctions.

One of the comments I would make is when you talk about integrity, assuming we have common ground on exactly what's captured by that term, yes, it's serious, and yes, it should be dealt with in a serious way, but whether that would necessarily mean a formal process in every instance, under Bill C-42 that would mean a dismissal case.

We would have everything available under dismissal, which we don't have now, to be dealt with at the most appropriate level. When I hear about independence and objectivity the difficulty is that you've got to balance those things. You can't have something completely independent, because when you introduce that, you're taking it way far away from where the person has personal knowledge and understanding. I get the objectivity component. You want to make sure there's a check there to make sure appropriate sanctions are being imposed.

[C/Supt Craig MacMillan]

I definitely agree it's too cumbersome, but we're in that catch-22 where we want to have any serious integrity issue dealt with formally. When you start talking that language in our current process, it would just come to a halt. It's not moving that fast right now, but if you're saying every integrity issue has to go into a formal hearing....

Under Bill C-42 we have the ability to have increased levels of sanctions imposed at a lower level, so we should have more flexibility with that.

I have seen discipline ebb and flow to a certain degree. I'm no expert, but I would say that to some degree it's a reflection of social views as well.

For example, impaired driving or shoplifting at one time were considered to result in automatic firing. It's not considered to be that way anymore. There are mitigating factors. But in the case of shoplifting, I do see us moving back in the direction where it could result in termination.

[C/Supt Craig MacMillan]

I will answer your question in two parts.

There is some sensitivity around the role of adjudicator. As it's set up under the current act, it's a quasi-judicial role. Rolling in and saying that they have it all wrong, that they have to do everything differently from now on, and this is how they're going to judge those cases isn't quite how it unfolds.

What I currently do is read each formal decision that comes out—I'm only talking about formal decisions; I'm not talking about informal decisions—as part of examining the case and the direction in which it was going. A range of sanctions are usually available, so you can know whether it's within the expected range of sanctions.

We publish an annual report, which includes all the formal discipline cases that have been adjudicated and the sanctions that were imposed. We're in our fourth year. That's made available to the minister. It's available on our website, so it can be accessed by external parties.

That's part of the process we go through in showing what dispositions we've been imposing for certain sanctions.

There are going to be disagreements over certain cases. I can't speak to Mr. Plecas's report. I've read the report, but I don't have the substance of the specific cases he's talking about.

My general sense is that we don't have integrity cases that aren't being dealt with seriously. But if there's a structural issue why we're not seeing more cases in the formal process, it's probably for some of the reasons that were discussed. The minute you put it into that formal process, and as I stated before, you're talking months and years, there might be some inclination to try to deal with it, to get the member back to work. It's not a career-ending thing that's happened.

Bill C-42 would get rid of that bottleneck. Right now if it's more than a reprimand, you're into a formal hearing. Now your local line officer should be able to deal with it.

I understand the point about objectivity and independence of the local decision-making, but that's inconsistent with the trend in reforms and policing generally to try to have your appropriate managers deal with it. We will build in checks and balances so it isn't a matter of “my best friend” or “I don't like that guy or gal” that's going to be taking effect. We'll have checks in there to make sure Canadians know an appropriate sanction was considered or applied.

Another minor but important element is that in a public complaint context, Bill C-42 would permit the RCMP to disclose to the public complainant the measures or discipline that will have been opposed. That's a historical issue that has caused us some difficulty. Now they can be formally told this is what happened as a result of their complaint.