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.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

You asked a rhetorical question. You talked about a couple of cases, and you talked about the sexual assault that dragged on for years—the guy was ruined, and so on.

You asked what would have happened under Bill C-42. Let me ask what you think would have happened under Bill C-42.

[S/Sgt Abraham Townsend]

Since the introduction of the bill, there has been.

In fact, as recently as Friday of last week, Superintendent O'Rielly and Chief MacMillan presented to our caucus of 42. We have caucus meetings going on right now. Prior to that, shortly after the bill was introduced, we met with Superintendent O'Rielly and scoped out a process and a pattern of consultation as we look forward to new regulations.

There was no consultation on Bill C-42, but we all recognize that once the bill is out in the public venue, there will be regulations, rules, and policies that will actually make this bill operational. As recently as this morning we had discussions with the commissioner, and he again committed to the consultation. In fact, he said this won't work unless we work together.

[S/Sgt Abraham Townsend]

We were not consulted on Bill C-42.

[Staff Sergeant Abraham Townsend, National Executive, Staff Relations Representative Program, Royal Canadian Mounted Police]

Good afternoon, Mr. Chair and ladies and gentlemen. We thank you for the opportunity to appear before your committee today on behalf of the 24,000 regular and civilian RCMP members who serve across Canada and internationally, to provide their perspective and input.

My name is Abe Townsend. I am in my 32nd year of service. With me is Mike Casault, in his 23rd year of service. We are the national executive of the staff relations representative program.

During my service I have served in four different provinces and two territories. My duties have included general duty policing, federal policing, and major crime investigation. My last uniformed posting was as a detachment commander in Yarmouth, Nova Scotia, at the rank of staff sergeant.

I have been an elected representative since 2004. Mike has served in the province of British Columbia, and was elected to represent our members in 2008.

The staff relations representative program is the non-union labour relations program for all 24,000 members of the RCMP. The program is authorized by law, and is the officially recognized program of representation on all issues that affect the welfare and/or dignity of RCMP members.

Our program is comprised of 42 representatives, democratically elected by and from the membership in all territories and provinces. The program has its own constitution, attached to this submission as appendix A, and a formal agreement with the commissioner, attached as appendix B.

We welcome the parliamentary hearings and your consideration of our feedback in relation to Bill C-42. We were not consulted during the drafting of Bill C-42. We look forward to providing this committee with our members' perspectives as well as updates on the outcomes of your work.

While there are some aspects of Bill C-42 that we appreciate, we have some fundamental areas of concern that we wish to express on behalf of our members.

We have heard much criticism directed towards the present RCMP Act and the need to change. Unfortunately, there has been no reference to the report of Mr. Justice René Marin. His report was the framework for the RCMP's current disciplinary and grievance system. I have attached as appendix C the historical overview taken from the RCMP Internet site. The emphasis was to have discipline administered and dispensed at the lowest possible level. The 1988 act brought into play procedural fairness and natural justice. Emphasis was on identifying weaknesses and unacceptable behaviours and taking appropriate remedial action—corrective action versus punitive action. Grievance rights and processes were introduced, as was the external review committee.

We believe some managers at all levels of the organization did not do what the act encouraged and empowered them to do, and we find ourselves here today.

Accountability is no stranger to our members. As peace and public officers, they are accountable to the rule of law. Accountability touches every aspect of our job. The vast majority of our members meet and exceed these expectations.

Our members execute their duties realizing the dangerous and conflict-ridden environments in which they serve.

We realize that internal and external review may be the byproduct of honourable service.

Legislation must serve their unique interests as they serve the community.

The present act contains the necessary authorities, but they have not been utilized properly. Managers at all levels have not been held accountable for their behaviour, action, and inaction. What will change with new legislation?

Unfortunately, I can speak of instances where internal processes of the RCMP have failed individual members, and by extension the force and the public we have sworn to serve. I can speak of a young member, a single mother who endured almost a decade of suspension, only to be reinstated, after appeal, by Commissioner Paulson. I venture to say that this female member, under the provisions of Bill C-42, with the stay provision removed from the act, would no longer be employed with the RCMP. Where is the fairness?

I can speak of a female member who alleged sexual harassment and faced roadblock after roadblock in seeking resolution.

I can speak of the file of a member who was accused of sexual assault. This member was investigated by the RCMP and criminally charged. Only later was the truth revealed: there was no assault. In the meantime, the RCMP member's career and personal life were in ruins. Yes, there was a public apology by the attorney general of the province involved, but it was too late. What would happen to this member under Bill C-42?

There has to be protection for such instances. We have far too many cases of harassment left to drift aimlessly, and we have conduct investigations and decisions associated with those investigations that are delayed beyond reason—delayed by bureaucratic obstructions and avoidance. It has been my experience that these failures were not always due to faults with or restrictions imposed by the present act.

My purpose is not to focus on failure. The vast majority of our members will not come into conflict with the RCMP Act during their career—the majority will serve with distinction without internal challenge—but for the few who do, we must have legislation that will serve in a fair and constructive manner. Our managers must be trained to properly utilize the authorities available.

There has been much debate in relation to the RCMP culture. Millions of taxpayer dollars have been spent to examine the RCMP on many important issues. This is an investment in our national police force. My concern is not with the investment, but with our ability and desire to pay real attention to the recommendations of those various reports: the Brown task force and the reform implementation committee reports, the reports of Dr. Linda Duxbury, or the RCMP Pay Council report on discipline. All are reports having been made with the goal of advancing our organization.

As we focus on discipline, I am left to wonder: if the recommendations of the pay council report on discipline had been implemented when written in 2005, would the criticism and frustration we now realize have been avoided?

Bill C-42 will see the commissioner given broad authority to make rules. These rules must have accountability on outcome. We look forward to working constructively in building these rules. Principles of procedural fairness and natural justice must remain. The legislation and the rules that follow cannot simply be about dealing with the very few bad apples, but must nourish the entire orchard. We must invest through learning and development.

I would like to draw specific attention to areas of the proposed legislation. The first is grievance procedures and discipline appeals. In Bill C-42, the commissioner makes the final decision on grievance procedures and discipline appeals.

On behalf of our membership, we believe grievance procedures and appeals for discipline cases should be expedient and impartial. Further, the decision-maker should have expertise and broad experience in labour relations. We have attached appendix D for your consideration.

With regard to the code of conduct, we commend the authors of this act for their proposed section 36.2. As a member, as a former detachment commander, and as a representative, I believe that if we adhere to these principles, we will find success.

With regard to the authority under the code of conduct for investigation of warrants, our members have expressed fear and apprehension in relation to this new authority provided under proposed section 40.2 of Bill C-42. We urge your consideration: remove or amend this section as suggested in our appendix E.

On conduct boards, under proposed section 43 of Bill C-42, we believe conduct boards must be reserved for the most serious of alleged breaches of the code of conduct. In these cases, legislation should clearly articulate the implicit right to an oral hearing wherein evidence can be examined and cross-examined.

In relation to the CRCC, the enhanced authorities provided to the CRCC in Bill C-42 will only serve to reassure the Canadian public, in their eyes, of our members' accountability.

We invite external review; however, we must express our concern and objection in relation to the escalation of powers provided to the CRCC in proposed section 45.65, specifically the authority to order a statement during an investigation. While there are protections offered, we believe these protections against self-incrimination do not go far enough. We have similar concerns with proposed section 45.56.

In concluding my opening statement, I wish to make one final comment.

The “category of employee” issue has been with us for several years. We would also like to see a time when all employed in the RCMP are just that—employed under the authority of, and accountable to, the RCMP Act.

Thank you.

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

I have read the provisions contained in Bill C-42 which would add new ones to the act. I was struck by proposed subsection 4(1), which is on page 16. I will read it out loud, since some of you might not have it on hand:

(4.1) A member is not entitled to have access to a standardized test used by the force, or to information concerning such a test, if in the opinion of the commissioner, its disclosure would affect its validity or continued used or would affect the results of such a test by giving an unfair advantage to any person.

I don't quite understand this subclause as worded in the bill. What is its purpose? What is it going to change or bring about within the RCMP?

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

Thank you very much, Mr. Chairman.

Ladies and gentlemen, I would like to thank you for being here to answer our questions. We have several of them, because this is a large bill. I am very pleased to see you here, and to hear your answers to our questions.

I tried to go through the Royal Canadian Mounted Police Act over the last few days. There is a lot in there.

Bill C-42 contains many amendments to the act. If you could shed some light on a few issues for me, that would be greatly appreciated.

Under the current legislation, the commissioner has the power to hire and fire members. Under Bill C-42, the commissioner would have more power to fire or to sanction a member of the RCMP. I would like to know why this is necessary, since the commissioner already has this kind of power.

[Mark Potter]

Thank you very much.

In terms of the composition of the commission itself, Bill C-42 allows for the appointment of a chairperson, as well as up to four additional members of the commission. These are Governor in Council appointments by the government, and these are the individuals who will lead that organization and have certain powers within the context of the act.

To support these individuals there is a public agency that is made up of some 40 to 50 individuals. I believe you'll be hearing this week from Mr. McPhail, who's the current interim chair of the commission, and he can give you more details. It's a fairly robust body that exists to provide the support to conduct the investigations and to compile the information on complaints. That's the office in Ottawa.

In Surrey, B.C., they have an intake office that works with complainants to process the complaints and ensures that particularly those individuals who may not understand the process very well or need support can be assisted in preparing their written complaints so they can be submitted and reviewed by this agency.

These public servants form the bulk of the agency, conduct the investigations, and develop the reports, but ultimately, it is the chair, appointed by the government and acting independently within its legal mandate, that approves those reports and submits them.

[Chief Superintendent Craig MacMillan, Director General, Adjudicative Services, Royal Canadian Mounted Police]

Good afternoon, Mr. Chair and members of the committee. Thank you for providing us the opportunity to appear before you.

I will briefly highlight how Bill C-42 will contribute to enhancing accountability and responsibility within the RCMP through the reform of certain key human resource management processes.

One of the primary concerns regarding the existing RCMP Act is that it limits the ability of a manager or supervisor to deal with incidents of misconduct. If an incident is considered to require more than a reprimand or forfeiture of one day's leave, responsibility for the case is taken out of the hands of the immediate manager, as it must be forwarded to an adjudication board for a formal hearing. There, before a board composed of three officers, an adversarial and time-consuming process of formally presenting evidence in a court-like setting occurs. Bill C-42 provides a framework that permits and empowers managers closest to the action, so to speak, to identify and respond more promptly and more effectively to the vast majority of incidents of misconduct.

Particularly important to all stakeholders and to the public is that the bill expressly articulates the purposes of the conduct regime, including a code of conduct that emphasizes the importance of maintaining the public trust and the high standard of conduct expected of members, establishing a process for dealing with contraventions in a fair and consistent manner at the most appropriate level and for the imposition of measures that are proportionate to the nature and circumstances of the contravention and, where appropriate, are educative and remedial rather than punitive.

Managers will be provided with the ability to ensure that relevant information is gathered to determine if a member has contravened the code of conduct, and, once a member has had the opportunity to provide a response to the allegations, to determine the most appropriate response.

This approach is not only consistent with how issues of misconduct are generally dealt with in the public service, it also accords with a trend in police reform in other Commonwealth jurisdictions to handle incidents of misconduct through less formalistic mechanisms.

Cases in which a member may face dismissal will be referred to conduct boards that have greater latitude to manage hearings as informally and expeditiously as the circumstances and considerations of fairness permit. During conduct proceedings, members will have access to representation from either a staff relations representative or legal counsel. Decisions on measures may be appealed to the commissioner.

When a manager has imposed a measure that includes a penalty of more than one day of pay or demotion, the member will be able to seek a review through an independent third party, the external review committee. The committee will provide a report containing findings and recommendations for the commissioner, who then makes the final decision on appeal, subject to judicial review. Timelines will be established to ensure the process is conducted in a timely fashion, including the establishment of service standards for the external review committee.

The bill also provides the commissioner with the authority to establish procedures for the investigation and resolution of harassment complaints, including sexual harassment, when the respondent is a member. This authority is necessary for the commissioner to deal with concerns that have been raised in respect of harassment in the RCMP workplace. Presently, the RCMP is required to consider complaints of harassing behaviour through two processes, one defined by the Treasury Board harassment policy and the second through the legislative provisions of the RCMP Act.

The Treasury Board harassment policy focuses on preventing and stopping harassing behaviour through early intervention in order to return the workplace to a respectful and professional state. The current RCMP Act discipline system is designed to determine if a contravention of the code of conduct has occurred, and, if so, to impose a consequence on the offending member.

The issue of relationship repair or complainant participation during investigation or hearing does not really form part of the discipline process at present. This dichotomy has resulted in an inordinate amount of time being spent trying to comply with conflicting processes in place of addressing and resolving the matter of harassment.

In addition, the RCMP is actively pursuing the establishment of a comprehensive respectful workplace program that focuses on the prevention and early resolution of harassing behaviours, which will also be bolstered by the new investigation and conflict resolution processes in Bill C-42.

During the October 3 meeting of this committee, the minister and commissioner described how the bill will provide new authorities for the commissioner to, among other things, discharge and demote members on non-disciplinary administrative grounds. A question that has been raised in relation to these authorities is whether members will be adequately protected.

First, it is important to note that these proposed authorities essentially mirror those provided to deputy heads under the Financial Administration Act and to other Canadian police executives. The authorities are remarkable in the RCMP context only in that they were not previously available to the commissioner in the proposed form. Second, it is important to note that Bill C-42 requires that these authorities be based on cause.

Finally, as with cases of misconduct, members will have access to representation and advice and will have the right to grieve these decisions, which will be subject to independent examination by the external review committee and to judicial review if necessary.

I'd also like to briefly address how the bill will support cultural change in the RCMP.

Legislation alone cannot bring about a cultural change, nor can it ultimately prevent any or all bad behaviour. However, what the bill can do is to serve as a catalyst for change.

First and foremost, the bill provides a statutory framework to ensure that members are responsible and accountable for the promotion and maintenance of good conduct in the force.

Further, it will permit and require managers to manage. Where members have not behaved consistent with expectations, managers at the most appropriate level will have both the responsibility and authority to deal with most incidents of misconduct in a timely, fair, and proportionate manner. The requirement to create and apply a professionalized, informal conflict management system will also provide members, their representatives, supervisors, and managers the ability to identify and resolve workplace issues as they arise and not let them fester. All of these factors are important to sustaining a culture of accountability and responsibility in support of a respectful workplace.

Finally, unlike the strictures of the current act, an important feature of Bill C-42 is that it provides an overall framework that enables ongoing reform and modernization of RCMP human resource processes. The ongoing ability to develop and adapt such processes based on experience and practice is a central component to enhancing accountability and assuring the continuing transformation of the RCMP.

It will be our pleasure to provide further information and response to any question the committee may have.

Thank you.

[Mark Potter, Director General, Policing Policy Directorate, Law Enforcement and Policing Branch, Department of Public Safety and Emergency Preparedness]

Thank you very much, Mr. Chair. It's a pleasure to be here again.

You've already introduced the five of us at the table. I'd just like to say that we and others have been heavily involved in developing this legislation, and we very much appreciate the opportunity to meet before this committee and to discuss Bill C-42 with all of you today.

As you heard from the minister on October 3, this bill has three main components. I will provide an overview of the first two, namely, the strengthened RCMP public complaints regime and the establishment of a statutory framework for handling criminal investigations of serious incidents involving RCMP members.

My RCMP colleague, Chief Superintendent Craig MacMillan, will speak to the RCMP's modernized discipline, grievance, and human resource management framework.

Before going into the substance of the bill, I think it would be helpful to provide some context around oversight of RCMP conduct. When an incident or event occurs that puts into question the appropriateness of an RCMP member's conduct, up to three distinct processes can be triggered. Although each process is distinct, sometimes all three are engaged. Permit me to quickly outline each of these three processes.

The first is a public complaint, which is usually investigated in the first instance by the RCMP. If the complainant is not satisfied with the RCMP's handling of the complaint, which only happens with about 15% of all complaints, he or she can seek further review by the current Commission for Public Complaints Against the RCMP, or CPC.

The second is internal RCMP conduct or discipline investigations. Similar to that of all other police services in Canada, the internal discipline regime within the RCMP is based on its code of conduct. If an officer conducts himself in such a way that may be contrary to the RCMP's code of conduct, for example, by behaving in a manner that is disgraceful or disorderly or that could bring discredit on the force, an internal review process is undertaken.

If the officer is not satisfied with that outcome, the RCMP external review committee, an independent review agency similar to the CPC, will review the case and make recommendations to the RCMP commissioner, who renders the final decision. Judicial review is available should the officer wish to appeal further.

The third element of oversight is the investigation of police conduct that could lead to criminal charges against an RCMP officer. It's important to note that a criminal investigation will take precedence over the other two processes, which may be placed on hold until the conclusion of the criminal case.

To recap, you could have a single incident that gives rise to one, two, or all three processes, namely: public complaint, internal discipline, and criminal investigation.

Bill C-42 enhances and streamlines each of these three processes, and in so doing contributes to improved oversight, accountability, and, ultimately, public confidence in the RCMP.

In terms of the public complaints regime, this bill modernizes it in several important ways. First, it creates a new independent complaints commission—the civilian review and complaints commission for the RCMP, or the CRCC—in order to strengthen and bring the RCMP's complaints regime in line with other modern provincial, federal, and international review bodies. The chairperson of the new commission, acting independently within the framework of the CRCC's legal mandate, reports to Parliament through the Minister of Public Safety. The minister is required to table the commission's annual report in each House of Parliament within the first 15 sitting days after receiving the report. This is a long-standing statutory obligation that would be continued under Bill C-42.

I would note that this reporting structure is common among review bodies and respects the RCMP accountability structure, where the commissioner is responsible for the control and management of the RCMP under the direction of the minister.

The CRCC will have strengthened investigative powers similar to that of a superior court of record whenever it undertakes a complaint investigation or a public hearing of a complaint. The CRCC will be able to summon and enforce the attendance of witnesses, compel witnesses to give oral or written evidence under oath, and compel the production of any documents or material considered relevant and necessary for the investigation.

Bill C-42 provides the CRCC with access to all RCMP information that it deems relevant to the performance of its duties and functions, including national security information as well as privileged information, with two important qualifications.

In terms of privileged information, which is sensitive and requires a higher standard of protection, the commission will now have access to such information if it is both relevant and necessary to the work of the commission. To my knowledge, no other police review body has access to privileged information by statute.

This regime sets a new standard in this regard. The commission will not have access to cabinet confidences. This is consistent with other federal and provincial review bodies.

Currently the CPC's work is centred on complaints. It does not have the legislative authority to conduct reviews of RCMP policies and procedures without a complaint first being lodged. Under Bill C-42 the CRCC will have the ability to review RCMP activities to assess whether these were carried out in accordance with legislation, regulations, and policies.

Such reviews will serve as an early warning signal, identifying issues or trends before they become the subject of a complaint or delving into matters for which there is often limited direct interaction with the public, for example, national security activities. These CRCC reviews will examine the RCMP's compliance with legislation and policies and make recommendations to the RCMP commissioner and the Public Safety minister through public reports.

Further, the bill addresses provincial and territorial calls for enhanced RCMP accountability to contract jurisdictions. As you would have heard from the Minister of Public Safety, the proposed changes to the RCMP Act are designed to enhance the accountability of the RCMP and to support the implementation of the new 20-year contract agreements entered into with the provinces and territories this year, which include enhanced governance and engagement.

Provinces and territories that contract RCMP police services have told us that they want to be kept apprised of police complaints in their jurisdictions. Accordingly, provincial police complaints bodies, which exist in all provinces, will be notified whenever a complaint against the RCMP is filed in contract jurisdictions.

In addition, contract jurisdictions will receive the CRCC's reports on relevant individual complaints in their respective jurisdictions, tailored annual reports, and reports on relevant policy reviews.

Separate from the complaints process, Bill C-42 will increase the transparency and accountability of criminal investigations into serious incidents involving RCMP members, essentially addressing long-standing concerns regarding the RCMP investigating its own members.

A serious incident is any incident in which the actions of an RCMP member may have resulted in death or serious injury or is of significant public interest that it merits an independent criminal investigation. In these latter cases, the Commissioner of the RCMP, the Minister of Public Safety, or the appropriate provincial or territorial minister will determine if the public interest is such that an external investigation is required.

There will be a clear, legally mandated three-step hierarchy for handling criminal investigations involving RCMP members. First, investigations into these incidents will be referred, subject to the province's approval, to an independent provincial civilian investigative body that has as its mandate to undertake criminal investigations of incidents involving police officers. Civilian investigative bodies currently exist in B.C., Alberta, and Nova Scotia. Manitoba has also passed legislation to allow for such a body.

Second, if these provincial bodies are unable to take on the investigation, or in those provinces where they do not exist, the RCMP will be required to refer the investigation to another separate police service where feasible. For example, for a serious incident involving an RCMP member in Moose Jaw, Saskatchewan, the case would be referred to another police service, such as the Regina Police Service.

Finally, as a last resort, when neither of these options apply, the RCMP would undertake the investigation itself and would be required to take special measures to ensure the investigation is unbiased and impartial. It is important to note that when these criminal investigations are undertaken by the RCMP or another separate police service, an independent observer could be appointed from the province or the new commission to ensure the impartiality of the investigation.

That concludes my overview of the proposed strengthened RCMP public complaints regime and the new statutory requirements placed on the RCMP regarding serious incident investigations involving RCMP officers.

Let me now turn to my RCMP colleague, who will outline the provisions for the new RCMP HR management framework.

Thank you very much.

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone.

This is meeting number 51 of the Standing Committee on Public Safety and National Security on Monday, October 15, 2012. Today we are going to continue our consideration of Bill C-42, An Act to amend the Royal Canadian Mounted Police Act.

On our first panel of witnesses we have, from the Department of Public Safety and Emergency Preparedness, Mark Potter, director general for the policing policy directorate, law enforcement and policing branch, and Anita Dagenais, senior director of the RCMP policy division, law enforcement and policing branch.

Welcome.

Also, from the Royal Canadian Mounted Police, we have Chief Superintendent Craig MacMillan, director general, adjudicative services, and Superintendent Michael O'Rielly, director of the legislative reform initiative.

From the Treasury Board Secretariat, we have Carl Trottier, executive director of strategic compensation management, compensation and labour relations sector.

We're looking forward to your comments.

We'll extend the time for our first panel to ensure that our witnesses and members have ample opportunity for questions and answers. We are going to go beyond 4:30, if that would be all right. We have three different groups here.

Also, I see Mr. Potter here. I recall that the last time Mr. Potter was here in the spring we started three-quarters of an hour late, I think, and we had votes and we went back and forth. His day was cut short then, so we certainly don't want to do that again today.

We welcome you.

Mr. Potter, perhaps we will begin with you.

Combating Terrorism Act

[Craig Scott, NDP, Toronto—Danforth, ON]

Mr. Speaker, my remarks today will be on a series of clauses in Bill S-7, clauses 4 through 8, which would add a number of sections dealing with the question of leaving or attempting to leave the country for purposes related to terrorism.

These proposed provisions that will make it a crime to leave or attempt to leave Canada to join a terrorist group or participate in a terrorist activity respond to very real concerns. Assuming the accuracy of testimony before the Senate, there are worries about a non-trivial number, even if a proportionately small number, of citizens or permanent residents contemplating leaving Canada for this reason or having already done so. There is reason to believe that male youth under age 18 or young men over age 18 in some diasporic communities are targeted, especially for recruitment to join in terrorist activities abroad. There is very much reason to be concerned.

All that noted, we are led, as we must always be when youth are highly likely to be the main subject of criminal law measures, to wonder if criminalization will be as productive a measure as its proponents hope. Let us assume that we all believe in preventive measures of a social, educational, mentoring sort alongside addressing root causes of alienation that lead to the kind of radicalization we are concerned about in this context. The question then becomes what the value would be of criminal charges against youth arrested at airports or other borders seeking to leave Canada.

At least for those under age 18, it is true that the Youth Criminal Justice Act will apply and that the act allows for holistic education-centred sentences, for example. That is a good thing, although everyone needs to be reminded of two caveats: one, that youth still receive criminal records; and two, that the Crown can always seek to apply for adult sentences. However, once one reaches that magic number of 18, we are left with the full-blown application of the criminal law. At minimum, we need to know that the approach of government is more multifaceted than reliance on these new Criminal Code provisions alone.

In this respect, there is one thing proponents have in common with those of us who are concerned about promoting non-criminal measures to divert people, especially youth, from radicalization of the sort that embraces violence, and that is prevention. If prevention could be achieved in ways short of the cumbersome and often clumsy invocation of the criminal law, I suspect that some productive consensus could be arrived at. The problem, however, is that it is very hard to design coercive measures to prevent a person's departure shy of using the criminal law while still remaining faithful to principles related to liberty and the rule of law that we cherish.

It might be thought that one way to use the criminal law in a way that falls short of full-scale criminalization would be for these new provisions to be used as the basis for detention by the Canada Border Services Agency and then arrest and charge by the RCMP, but then have the Crown decide not to prosecute. Keep in mind that when I say the Crown, I mean the Attorney General because these new provisions are among those in the Criminal Code that require the Attorney General's consent to prosecute.

When one reads the Senate committee records for Bill S-7, one gets the impression that there may be in part some who may mean, by the new provisions, this kind of idea in terms of the preventive purpose. If these new provisions allowed the state to prevent people, for example, youth, from joining terrorist enterprises while not resulting in criminal convictions and sentences, would this not be a defensible result? The answer seems clear. Criminal law will not be able to function within acceptable limits if it becomes a tool for disruption, whereby arrest is the end goal, but not prosecution. The more a system can be used with no real intention of prosecuting, the more it will over time be used in exactly that way.

For the Criminal Code to maintain its integrity, its implication must only ever be on the basis of good faith that each stage of decision-making is relevant, good faith that there is adequate evidence to sustain a prosecution. All this leads to the question of whether we actually do have a prosecution system in Canada that is willing and able to prosecute, considering that much of the evidence for the new offences will be produced from intelligence that CSIS and perhaps other agencies may well not be prepared to allow to go to court for fear of revealing sources and methods.

We know from the Air India inquiry how such considerations can inhibit effective prosecution. We have no reason to believe that the prosecution capacity has changed since the 2010 Air India report. Therefore, we may end up with a system that theoretically allows for proof of intention to leave the country for these purposes. We can all imagine the kinds of proof, ranging from emails, parents or community members, provision of information, information from foreign intelligence and so on. Therefore, a system that theoretically allows for proof of intention is possible but in practice may lead to charges being dropped because intelligence agencies will not want evidence made public. If so, we may inadvertently end up with the criminal law being used, in the way I talked about earlier, as a means to disrupt behaviour with limited prospect for use for its prescribed purpose of criminal prosecution. Therefore, in committee this may be an issue worth probing. Will the sort of evidence available actually usable before the courts?

Let us now look at another challenge, which is the interface of acquiring evidence of intent to leave the country for this purpose and logistics. This is the issue of how all of this will work at the point of exit from Canada.

At the moment, we all know there are no exit controls at all the borders, notably at airports, other than no-fly lists for those deemed to be a threat to aviation. Testimony before the Senate made it clear that co-operation protocols or memorandums of understanding would be needed among CSIS, the RCMP and the CBSA.

Mr. Fadden, the director of CSIS, went further and noted that would have to extend likely to CATSA, the agency of the Department of Transport that regulates security. How these protocols will be developed and what kind of accountability there will be for their operation remains a concern especially because the RCMP, a key link in the inter-agency collaboration that will be needed here, has been shown by both the Arar and the Air India inquiries to be an agency that suffers from lack of accountability and inappropriate oversight mechanisms. Yet, with the government's Bill C-42, we see that it has no intention of acting on the Arar commission's carefully thought through recommendations for RCMP accountability and oversight.

However, there are two comments by Director Fadden that most definitely will need to be followed up in the House of Commons committee after second reading.

I will turn to the first one. He said:

—I emphasize that we have not developed the protocols yet. What we will need to do is work closely with the Mounties and make sure [that] we are communicating at all times with border services.

The other complicating factor...is that Canada has no system for controlling exits. We do not even have a system to be aware when people are leaving. This will involve more than the CBSA; it may well involve CATSA, the agency of the Department of Transport that regulates security.

I should not say much more because I will get myself into a situation I will not be able to get myself out of.

We will need to better understand what is being considered, what is being referred to here by the director of CSIS. Is some form of cross the border surveillance system to clock everyone's exits being contemplated? That seems to be hinted at within the statement, especially the sentence, “We do not even have a system to be aware when people are leaving”. The suggestion is that such a system of awareness is some sort of requirement, a sine qua non for the protocols to be implemented to give effect to these new Criminal Code provisions.

One way to be aware of someone exiting the country is to already have identified them as having the intention that this criminal provision talks about and then to track them to the airport. However, that kind of specificity may not be what Mr. Fadden is actually alluding to.

To return to the question I have already asked once, are we looking at a more general surveillance system that CATSA, for example, would operate? We need clear answers on this in committee.

It might also be that a revision of the no-fly list is part of what is being contemplated as a general surveillance mechanism.

At another point in his testimony before the Senate, Mr. Fadden discussed why no-fly lists would not currently provide the mechanism: (a) for being aware of when someone is seeking to leave; and (b) for preventing that person from boarding the aircraft. Here is his observation:

The current structure of the no-fly list program is such that you have to be a threat to aviation....My understanding is that officials are preparing a series of proposals for ministers to try to make this list a little more subtle, but I do not know where they are on it.

Is it possible that the government is considering a mechanism to put people on a no-fly list based on evidence, at whatever standard of proof, that the person intends to leave Canada in a way that would violate one of these new leaving the country provisions? If so, we need to know much more about how this would work in relation to enforcement of these new provisions in the code, how people would be put on this list and how they could get off.

Would this be an alternative to arrest and possible prosecution under the criminal law provisions? If so, is this possibly preferable to direct intervention of the RCMP to arrest, followed by possible prosecution? I think in particular of how this would avoid criminalization of youth where the primary concern with respect to the kind of radicalization that leads them to want to leave Canada to get involved with terrorism.

At the same time, however, what we know about how no-fly lists currently operate in a zone of non-accountability leaves me deeply doubtful that this approach would provide a preferable preventive mechanism.

Just for example, the experience of Maher Arar and other Canadians like Mr. Almalki, Mr. Elmaati and Mr. Nureddin create real worries about what could happen to a Canadian who ends up on a no-fly list for reasons related to CSIS or RCMP speculation about intentions to engage in terrorism.

The Canadian government's purpose might be to stop the person from leaving Canada. Perhaps the purpose is to get youth to think twice before trying to leave Canada by another means. However, foreign intelligence agencies that might get access to our no-fly list might act very differently on that very same information if the person in question ever did leave Canada and then showed up on the radar screen of some country when seeking to use that country's airport.

The reason this is of such concern is that the connection between a person and terrorism within this new leaving the country criminal law provision can be very attenuated. Intentionally attempting to leave becomes itself a terrorism offence and the evidentiary basis for being put on a no-fly list as opposed to being brought forward for prosecution may be far below the standard of beyond a reasonable doubt within our criminal law system. Yet on such a possible thin basis, someone's name could enter into the interconnected global system of surveillance that could lead to preventive arrest or worse in other countries on that basis alone.

I emphasize that those are concerns prompted by an admittedly very brief reference from Mr. Fadden, but in the context it is potentially a very telling reference. We must be aware how collaboration and information-sharing works between intelligence agencies between countries. This is something I have had the chance to study in some depth several years ago when preparing a report for the settlement process in Mr. Arar's lawsuit against Canada.

Unless we have confidence in how people would get on this new, more subtle, to use Mr. Fadden's language, no-fly list and confidence in whether, how and with whom the names on that list and the reasons for being on that list are shared, there is much to be worried about with respect to Mr. Fadden's revelation about a more subtle no-fly list.

In any event, I think the point is clear that, based upon the testimony of the director of CSIS before the Senate, this needs to have detailed testimony and scrutiny in committee after second reading in this House.

I will now turn to a few comments, one, in particular, made by Minister of Justice when he was testifying before the Senate. He talked about how investigative hearings could produce the evidence to discern the intent of a person to leave the country for purposes of terrorism. However, we know that investigative hearing provisions, which are being proposed to be restored in the Criminal Code by this bill, state that testimony cannot be used as evidence in court against the person giving that testimony.

This leaves us with one of two possibilities with respect to what the minister was referring to.

The first is that he is actually thinking about using this mechanism as a mode of detention and arrest but not necessarily going to prosecution. We return, therefore, to the problem of use of the criminal law system to allow for disruption with no real prospect for prosecution.

More likely, however, the minister could not have meant that. He must have meant that investigative hearings will be used to question people about other people's intentions and, thereby, use that as evidence for the attempt to leave provisions of the Criminal Code. If so, this would have profound implications with respect to how often and to which people these investigative hearings would be used as evidence-gathering tools. We need to discuss this in committee.

The minister also suggests evidence of intention to leave the country could come out of the hearings that deal with preventive recognizance with conditions. Presumably, again he means someone else is brought to such a hearing about some impending terrorist act and information is then revealed about another person and that evidence is then used to prove that person intends to leave the country for purposes of terrorism.

We need to ask the minister and his officials what he meant by reference to those two sunsetted provisions, if they come back into law, as being mechanisms to gather evidence of intention to leave the country.

That raises another question. Would the proposed new clause 83.3, resurrected from the 2001 Anti-terrorism Act, allow for recognizance with conditions if someone can be shown to be on the point of leaving? Because this would be a terrorist act, when people attempt to leave, they are now engaging in a terrorist act according to the new provisions. They can then be required to stay and their passport taken away for up to 12 months. Is this scenario possible? Is this in fact a planned sequence? Does the government have this in mind?

Keeping in mind how the United Kingdom actually uses control orders to prevent departures from the country, the question has to be asked whether or not this is something the government contemplates. This is a question to pursue, again in committee.

I will conclude with the overall comment that there is much to look at in committee if we are to fully appreciate and make judgments about the utility of these new attempting to leave or leaving the country Criminal Code provisions.

Royal Canadian Mounted Police

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

Mr. Speaker, it is a very big bill. With all due respect, it is a bit of a simplistic argument that the term 'sexual harassment' should be literally in this legislation. We are talking about all kinds of issues that may arise in serious incidents. It is very simplistic to name every type and form of whether it is harassment or a serious incident.

The bill would give the RCMP the ability to deal with all harassment, and that is what we want. When we start segregating it, that is where the problem is. Let us deal with all harassment. When we do that, the RCMP will be able to deal with sexual harassment and other forms of harassment.

That is what Bill C-42 would do. It would also help deal with a serious incident. If we want to start listing what a serious incident is for the RCMP, again, it is not a good way to deal with issues that might arise within the force, which we respect immensely. Ninety-nine per cent of the members of the RCMP are doing a fantastic job and we respect them. However, we will deal with it under Bill C-42.

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

Mr. Speaker, I appreciate the answers from the parliamentary secretary.

I find it sad is that there is absolutely no mention of sexual harassment in Bill C-42. It is extremely unfortunate because this bill is supposed to deal with sexual harassment.

Also, with respect to the consultations, during his presentation on Bill C-42, the minister confirmed in committee yesterday that he had not formally consulted members of the RCMP prior to introducing Bill C-42. It is unfortunate that members were not formally consulted before this legislation on the RCMP is imposed.

I am sure that everyone here, all the parties, recognize that we must deal with the problem of sexual harassment, especially when it concerns our federal police force. However, we need something more. We need an anti-harassment policy, we need wide-ranging, real action.

I would like to ask the parliamentary secretary why is more not being done, why is an anti-harassment policy not included in Bill C-42?

[Candice Bergen, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, I want to respond to the question put forward to the House by the member for Alfred-Pellan regarding the issue of sexual harassment in the Royal Canadian Mounted Police, RCMP.

All of us are very concerned with this issue. We are all definitely concerned with the issue of sexual harassment within the RCMP and in any workplace. We are also concerned with the issue of general harassment within the RCMP.

As my hon. colleague will recall, yesterday we heard testimony from Commissioner Paulson. He talked about the fact that men and women both felt harassment. About 33% of women and 26% of men feel they have been harassed. In terms of sexual harassment, about 3% of women feel they have been sexually harassed. All members certainly were certainly concerned with that.

I disagree with the member's premise that our government is not taking action on this. In fact, we are taking very firm action and have made strong statements on these issues. We took immediate action by asking the Commissioner for Public Complaints Against the RCMP to take an in-depth look at how harassment complaints were managed in the workplace. We also have a commissioner who, from the time he was appointed, has taken a strong stance on this issue, and we congratulate him on that.

In addition to that, our government, which has been a majority for just over a year, has brought forward a lot of initiatives. One of those initiatives is the introduction of Bill C-42, which would update the RCMP Accountability Act.

As my hon. colleague heard testimony from the commissioner yesterday, and we will hear more testimony, changing the RCMP Accountability Act and legislation by which it is governed is the fundamental foundation to change the culture in the RCMP. This would address the harassment and certainly help bring an end to sexual harassment. It would change the complaints process and modernized it, among a host of other things that are being done under Bill C-42.

I do not know whether the member heard the testimony yesterday, but the commissioner was very clear in wanting the legislation to pass. He was very technical in the way he spoke about how accusations of any kind of harassment had to be dealt with and how draconian it could be right now. That is why he asked that we get the legislation passed.

We have consulted with the provinces and other stakeholders and introduced the proposed legislation. It is good legislation that addresses a number of factors within the RCMP: how public complaints are made; how to deal with serious incidents by the RCMP, ensuring that police are not investigating police; and it lays the foundation to deal with issues like sexual harassment.

We would encourage the opposition to reread the bill and look, in a foundational way, at what can be done. When a human resource department is able to deal with issues like this, it is usually the best to help change the culture, but it needs the tools. The RCMP, under the current legislation, does not have the tools.

The commissioner was clear yesterday when he said that the RCMP did not need more money, that it just needed these rules changed so it could do the work it needed to do. He wanted his human resource managers and supervisors to be able to deal with issues at the level they appeared. Sometimes it is education, working together, mitigation and discipline. These are all things that the RCMP need tools to do and they are in Bill C-42.

We encourage the opposition to get the bill through committee and into law so the RCMP can work at these sexual harassment and other harassment cases.

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

Mr. Speaker, I am very pleased to rise today in the House to talk about an issue that is of great concern to me. Unfortunately, this matter has been in the media several times in recent years and especially in recent months.

As the deputy critic for public safety for the official opposition, I recognize the excellent work of the police officers who protect Canadians by risking their lives every day. In the past few years, many Canadians have said that they are concerned by the allegations about the RCMP. For some time, the RCMP has been plagued by scandals involving sexual harassment, among other things, and several female officers have said that they were victims.

On July 30, in Vancouver, 200 women made headlines when they came forward to join a class action suit to bring to light the sexual harassment they allegedly suffered as members of the federal police force. Women such as Officer Janet Merlo, Corporal Catherine Galliford and Constable Karen Katz had the courage to take a stand and denounce the sexual harassment they suffered for years in the Royal Canadian Mounted Police.

For these women, every day was a challenge. Today, I congratulate them for having the courage to report this unacceptable situation. Last November, Corporal Catherine Galliford was the first to report that she has been the victim of sexual harassment. Officer Merlo filed her complaint in March. The lawyers for these women expected a dozen other women to follow suit. Instead, more than 200 women contacted their law firm to join the proposed class action lawsuit.

It has been confirmed that the allegations in question range from sexism in how promotions were awarded to accusations of sexual assault, and that these allegations have been made across the country. On May 10, 2012, I asked this government to take action and give the RCMP the resources it needs to combat sexual harassment. Last week I participated in the debate on Bill C-42, An Act to amend the Royal Canadian Mounted Police Act and to make related and consequential amendments to other Acts. Although this bill gives more disciplinary powers to the commissioner and the ability to establish a more effective process to resolve disputes relating to harassment, the bill itself cannot bring about a change in corporate culture, which is absolutely necessary to specifically address the allegations of sexual harassment.

In fact, this bill does not go far enough to address the concerns of women working in the Royal Canadian Mounted Police. These women are calling for immediate action to create a safer and more open work environment. Unfortunately, the government failed to take initiative and leadership on this issue. It has been in power since 2006, and despite several reports and recommendations, such as Justice O'Connor's 2006 report and David Brown's 2007 report, which proposed major changes to the RCMP, it took six years to decide to address the situation.

Why did the government wait so long to address this situation? Why did it not take the situation of these women seriously and take action to put an end to these crimes as quickly as possible?