One of the ironies is that this legislation was put in place in October 1988, which was six years after the access and privacy legislation was in place and four years after SIRC was put in place. Their powers are quite similar. As a matter of fact, SIRC's powers were almost copied from those of the access and privacy commissioners.
Ours came later, and for some reason or other those powers were not put in there. It has been a point of frustration. It actually resulted in the commission going to the Federal Court to get access to information. The court in the first instance held that, yes, the RCMP had to provide access to the commission. They went to the Federal Court of Appeal, and the court said, no, unfortunately, your statute is weaker and doesn't provide that; the RCMP is allowed, in respect of any information to which privilege applies, to raise that privilege and to prevent access to it.
There actually was a ministerial directive issued, as I pointed out, by the former commissioner, that says try to cooperate, obviously, and give full and frank disclosure. But then it has an appendix, and the appendix is a good page long, with an itemized list of all the things that would be subject to privilege.
The only advantage we got, I think, from the decision of the court was that they at least had to tell us they were holding something back. So we knew that there was something we weren't getting and what the rationale was for not getting it.
In my experience, I have found that the RCMP in many instances want to cooperate with us. They will say to me, for example, “Paul, I'd like to share that with you because it would be to our advantage to have you more informed, but part VI of the Criminal Code dealing with wiretaps says you can't disclose information.” So they're not able to share the information and we're all caught in this catch-22. Even on an ad hoc basis, to the extent that they want to cooperate with me, if there is some other kind of statutory prohibition, it's used. So in my experience, I have found goodwill but a statutory impediment.
The other challenge is that if you look at SIRC's legislation, they can hear information in camera. They can protect information in camera. People would be concerned if they gave information to us that is classified and then someone else could access it from us under ATIP or privacy or subpoena, and the privilege might be waived.
I also spent five years as general counsel to the intelligence agency, and I know the dynamic in terms of concerns of the institution vis-à-vis oversight. So when I put this model in place, I learned the lessons of all the things that worked or didn't work in that venue. I have put in here that we have to have access to that information, but our access in law does not constitute a waiver of that privilege. Conversely, if information is given, if it's identified as being privileged, we will look at it and consider it, but we will not disclose it necessarily in our decision. But at least the public would know that we'd had access to everything.
I put a model in place that has those checks and balances in it that would give the RCMP comfort that there would not be damage to ongoing investigations nor a waiver by sharing it with us that would in fact constitute public disclosure. I have also talked in terms of being able to make two reports—a confidential report, classified when it needs to be, to the minister and to the commissioner, as well as one that would be public. Sometimes, by not having that detail in, it would be hard to persuade the commissioner or the minister that action should be taken.
The whole thing is put in there as a series of safeguards. I've done the same thing vis-à-vis witnesses. One of my arguments is that witnesses have to account for their actions. Police officers have unusual powers. In a lot of jurisdictions across this country, they have to account for the usual powers. Our model doesn't provide that. I'm saying that you have to, but conversely, for whatever you tell us, there is a privilege. It cannot be used in any other administrative, criminal, or civil proceeding. The reason is that our purpose is different. That way, a compulsion to testify would be with accompanying protection for the officer.