Public Safety Committee on Oct. 15th, 2012

[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.

[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]

Thank you, Mr. Potter.

Mr. MacMillan.

[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.

[The Chair, Conservative, Kevin Sorenson]

Thank you to both presenters.

I think those are the only presentations that are going to be given at this time, so we'll move into our first round of questioning.

We'll go to Ms. Bergen, please, for seven minutes.

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

Thank you very much, Mr. Chair.

Thank you to all the witnesses for being here. We really appreciate your expertise and the information you will be providing.

I want to address my question to Mr. Potter specifically, and I want to talk about when serious incidents happen with the RCMP.

To provide a little bit of context, at our last meeting, Mr. Scarpaleggia said that the Minister of Public Safety and our government have changed our views on civilian oversight bodies. I had a chance to review the blues from the minister's appearance on March 18, 2010, at this committee. When the minister was asked if he agreed with the concept that police should not investigate police when it comes to allegations of police misconduct, the minister replied:

No, I don't agree. Police should investigate police because sometimes they're the ones with the expertise to investigate. You don't want somebody who has no experience or no ability to investigate the police.

That was what Minister Toews said at the time, which I think provides context.

What I would like you to do, Mr. Potter, is explain again the three options that are available in the priority that you gave, where, first of all, there would possibly be a civilian investigative body that would provide the investigation for a matter of serious incident; the second option being, if one of those is not available, another investigative body within that province or jurisdiction; and then the third one, which I think is where everyone wants assurance that if that third option is taken there would be checks and balances and measures so that it would be unbiased and impartial.

[Mark Potter]

Thank you very much.

As you rightly note, there is an important consideration here of ensuring that you have a high-quality, credible investigation of the police. That requires a certain level of skill and experience by the individuals conducting that investigation. You want to balance that, on the other hand, by ensuring that public confidence is strengthened in knowing that it's not necessarily the police investigating the police when at all possible. This scheme tries to find the right balance, one that recognizes the important principles at play and some of the operational realities.

The three-step hierarchy is very much intended to do that. It's not that you pick one of the three; you start with the first option, and if that doesn't work—and only if that doesn't work—you go to the second. The first option in B.C., Alberta, and Nova Scotia is that the province would refer that matter for investigation to the existing civilian police investigation body. It would be unusual if there was some reason they couldn't do that. That would be the process you would use. You ensure public confidence in the process by knowing there's an entirely separate civilian investigative body with the right skills and experience to fully conduct that investigation.

If you are in Saskatchewan or another contract jurisdiction and you don't have one of these civilian investigative bodies available to you, you would go to the next-best option, which is to have a completely separate police service conduct the review. That ensures there's impartiality, that there is no possibility that members of the same police service who know each other—perhaps socially—would be investigating one another. You rule out any partiality.

If that is not possible, for whatever reason—and it's usually operational, such as in the far north or somewhere where you can't get a police service there quickly enough—you would have the RCMP conduct the investigation. In that case, there would be an obligation on the RCMP to demonstrate that they have gone through that three-step process and they haven't been able to refer to a civilian body or have another police service do it. Moreover, they would have to explain what measures they are taking to ensure the impartiality of the investigation they are conducting on themselves. For example, there would have to be information provided on the nature of the RCMP investigators. Do they have any connections whatsoever to the individuals being investigated?

The CPC did an important report about two years ago that reviewed RCMP investigations and looked at this question of impartiality. They established a number of benchmarks to look at in terms of ensuring the impartiality of the investigation. That provides a useful framework to help the RCMP and all police services to ensure that in the approach they take when they are placed in a situation of having to investigate themselves, they take as many steps as possible to ensure impartiality and a lack of bias.

On top of all that, for those last two options of another police service or the RCMP being involved, an observer can be appointed. This is an independent observer appointed by, for example, the province or territory, who would have the necessary skill set to understand how investigations are undertaken and who would be able to provide an impartial assessment of the quality, credibility, and impartiality of that investigation. That provides an important tool to make adjustments, if needed, during the course of the investigation. Let's say the Regina Police Service is conducting the investigation of an RCMP member; the observer would have the capacity to contact the chief of police in Regina and say, “This is what I have observed. I have problems with this. It needs to be fixed.”

If, for whatever reason, it's not fixed, the report at the end of the process goes to the provincial attorney general. That is taken into account in going forward with this matter, so there are a number of steps taken to buttress the process of police investigating police.

[The Chair, Conservative, Kevin Sorenson]

You have one minute.

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

I have a very quick follow-up. It appears there has been consultation with provinces and provincial jurisdictions in setting up this process. Overall, would you say the provinces and other jurisdictions are supportive? Are they satisfied that they will be able to have input, and that these decisions will be made and these investigations carried out in an impartial manner?

[Mark Potter]

I have been working on this file for five years. We have gone to extraordinary lengths to consult with the provinces and territories, given the nature of that contract relationship through which, in effect, the RCMP is acting as the provincial police service in many jurisdictions. It's their police service. It's extremely important to them that this regime meet their needs. We have gone to a number of meetings with them where we have discussed in great detail all aspects of this bill that are relevant to them. We have a high level of support. Perhaps you will have an opportunity to hear from them more directly if they are able to appear before this committee.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much. Thank you, Ms. Bergen.

We'll now move to Mr. Garrison, please, for seven minutes.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you, Mr. Chair, and thank you to all of you for appearing here today.

I unfortunately had to be in my riding, so I wasn't here for the minister's presentation, but I had a chance to review the blues.

I still have some concerns I'd like to raise in the areas of independence of the new commission and the investigations and access to information.

Let me start by talking about some restrictions, which seem quite significant, on the ability of the new commission to undertake studies.

You said that one of the positive things is that it can do more proactive studies without waiting for complaints. Yet there seem to be three big restrictions in the law. First, it has to have the resources available, implying that the old work of reviewing individual complaints takes precedence over the new power. Second, the new commission cannot undertake any investigation if there's already an investigation under way by any other government entity. And third is that the new commission would be required to suspend any investigation at the request of the commissioner. The word used in the section is “shall” suspend rather than “may” suspend.

To me, these seem like some very severe restrictions on the independence of the new commission. I wonder if you have any comments in those areas.

[Mark Potter]

That's an important question, because this is a new element, and it responds to a number of key recommendations, including from Justice O'Connor in his report a few years ago. It takes the level of review of the RCMP to a whole new level.

Essentially what it does is give pretty broad discretion, recognizing the first two points you mentioned that limit that to some degree. But I would argue that the scope and the range of activities they can look at are as broad as everything the RCMP does with respect to their mandate under the RCMP Act, the Witness Protection Program Act, and so on.

Let me speak specifically to the first two points you raised. First, conducting this review will not unduly diminish their ability to review and process public complaints. What that is basically saying is that your core business is public complaints. You need to keep processing those public complaints.

The policy reviews are something you will need to do in the context of your budget. However, what the government has done, in this case, is increase the budget of the agency. You had a base budget in the last several years of $5.4 million annually. It has been increased by $5 million to $10.4 million annually. Now, I should caveat that by saying that they got an increase from Treasury Board over the last few years of about $3 million. Really it's about $2 million more a year, and a big reason for that additional $2 million per year is to conduct these policy reviews. There will be resources available for the policy reviews right from the beginning to allow the agency to do that.

In terms of other review bodies looking at it, it's just a question of efficiency. If you already have another body looking at a matter, you probably don't want someone duplicating that process. That's not to say that the other review body might complete its process and there might still be outstanding questions or other matters this body may feel it appropriate to look at. They may choose to do that at that time.

These are constraints only in the sense that the chair of this new body has to inform the minister. It's not the case that the minister is going to say, “No, I don't want you to do that.” This is an independent body, and the chair will conduct those policy reviews. There is no capability for the minister to say, “I do not want you to conduct review X.” The body will conduct the review.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

The RCMP commissioner can do that.

[Mark Potter]

Yes, the commission, the chair, and the new commission have the legal mandate to proceed completely independently in these matters.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

But the RCMP commissioner, and I'll have to search my section, has the right to request the suspension of any investigation.

[Mark Potter]

That's only under rare circumstances, where the review gets into some kind of a criminal investigation and impinges upon, let's say, either an ongoing or a potential criminal investigation and could hinder that criminal investigation. As mentioned in my opening remarks, criminal investigations take precedence over all other processes and need to be completed first, before any of these other processes can start.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Is that restriction on criminal investigations actually written in that section of the bill? I don't remember that it is.

On the question of who is going to do these investigations so that we have civilian confidence that the police force is not investigating itself, I find one curious submission. That's the question of federal policing. Who investigates in the area of federal policing? You focused on the contract policing. There are responsibilities of the RCMP, which are strictly federal policing. Is there any change proposed in this bill for the investigation if it involves federal policing?

[Mark Potter]

The three-step hierarchy refers to all RCMP conduct, whether it's under the federal policing mandate or provincial contract responsibilities.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

You are proposing that, say, the British Columbia unit could investigate the RCMP's handling of national security matters?

[Mark Potter]

If a criminal incident was alleged related to the conduct of an RCMP member, and given the constitutional responsibility of the provinces to administer justice, yes, the provincial body would investigate the criminal matter.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

That's a matter of concern on this side of the table. The RCMP has some national responsibilities. Having provincial bodies investigating in those areas might create a patchwork of decisions in different provinces about how things are being handled, which are essentially federal matters.

If I have time, I want to ask one last question, and that's on access to information. It says that for privileged information there would be some restrictions. In the Arar inquiry, Justice O'Connor was very clear in saying that he thought the civilian complaints commission should have the same kind of access to information as CRCC does—in other words, very few restrictions, only cabinet confidence and solicitor-client privilege, with an obligation to check on the release of information before sensitive information would be released. Why is that model not being used in this case?

[The Chair, Conservative, Kevin Sorenson]

Answer very quickly, please.

[Mark Potter]

The short answer is we have an extraordinarily robust regime in this legislation for access to privileged information that balances the sensitivity of that information and the need to protect that information to the greatest extent possible. It recognizes that when it is relevant and necessary for the consideration of a certain matter, it can be accessed under fairly constrained conditions. This is unique in Canada, and it is an innovation to have such a system in law. It goes well beyond by expressly laying out the nature of the system and the checks and balances of what exists in terms of CSIS and CRCC.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Potter.

We will now move back to Mr. Leef for seven minutes, please.