Public Safety Committee on Oct. 22nd, 2012

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone. This is meeting number 53 of the Standing Committee on Public Safety and National Security, on Monday, October 22, 2012. Today we are continuing our consideration of Bill C-42, An Act to amend the Royal Canadian Mounted Police Act and to make related and consequential amendments to other Acts.

In our first hour, we will hear from Mr. Paul Kennedy, who is appearing as an individual. He has been in the Department of Public Safety in the past.

Also, by video conference from Upper Fraser, British Columbia, we have Darryl Plecas, Royal Canadian Mounted Police research chair and the director of the Centre for Public Safety and Criminal Justice Research at the School of Criminology and Criminal Justice, University of the Fraser Valley. He is also appearing as an individual today.

I would invite each of you to make your opening comments. Mr. Kennedy, I would invite you to go first. Then we will proceed with rounds of questioning from all parties and from different individuals around the table.

Welcome, Mr. Kennedy. Welcome, Mr. Plecas.

Mr. Kennedy, go ahead, please.

[Paul Kennedy, As an Individual]

I certainly want to thank you for offering me the opportunity to comment on Bill C-42.

I will be making comments with respect to parts VI and VII, which deal with the civilian review and complaints, as found at approximately page 35 of the bill.

To be effective and credible, a review body must, as of right, be able to access any information held by the RCMP that it deems necessary and relevant. The provisions of Bill C-42, at pages 40 to 44, establish an elaborate regime that authorizes the commissioner of the RCMP to withhold from examination and review by the civilian review body a broad range of privileged information. The proposed regime calls for the designation of a third party, who will be afforded access to the information, and, following receipt of submissions, will offer observations concerning the relevance of the information to the review undertaken by the civilian review body. Throughout the entire process, the review body will be kept in the dark as to the nature of any information that it has in fact requested.

I envisage that these provisions would have greatest application in respect of the federal mandate of the RCMP as it pertains to provincial, interprovincial, and international organized crime, economic crime, terrorism, and a host of investigations that entail collaboration with foreign agencies both in the police and national security areas.

The scheme as outlined in the proposed legislation is a direct repudiation of the policy recommendations made by Justice O'Connor of the Ontario Court of Appeal, who sat as a commissioner on the Arar inquiry, as well as the observations of Mr. Brown in respect of his task force report of December 14, 2007, on governance and cultural change in the RCMP. The existence of such a regime in the legislation fails to take note of the abuse to which such claims of privilege can be put by the RCMP, which abuse was a subject of severe criticism by Justice Major, formerly of the Supreme Court of Canada, in the Air India inquiry. This provision also stands in stark contrast to the power of access afforded the Security intelligence Review Committee in respect of information held by CSIS.

Of some concern as well are the provisions of proposed section 45.74 as found at page 64 of the bill. Proposed subsection 45.74(1) authorizes the chair of the civilian review body to:

suspend an investigation, review or hearing with respect to a complaint if, in the Commission’s opinion, continuing it would compromise or seriously hinder an ongoing criminal investigation or proceeding.

Proposed subsection 45.74(2) covers the same factual situation, but states that the chair of the civilian review body shall—it's mandatory—suspend the process if “requested to do so in writing by the Commissioner” of the RCMP.

One must ask oneself how much credibility the civilian review body would have in the public eye were it to have its review process terminated by a letter authored by the head of the organization over which it purports to exercise review. I would submit that it would have no credibility.

The bill provides for service standards respecting time limits with which the review body will deal with complaints. Other than a provision found in proposed section 45.63, which is on page 57 of the bill, the RCMP has no firm timeframes. The only obligation imposed on the RCMP is to respond as soon as feasible. Inordinate and unjustifiable delay was the hallmark of the RCMP during the four-plus years that I was chair of the Commission for Public Complaints Against the RCMP. I should note it wasn't just because I was the chair. When I was there I inherited a situation where there were backlogs of five years. The first case I signed was 10 years old. It was a cell death case and I was writing a letter to the family members of someone who had died 10 years before. It was not a very good situation.

I believe that an essential role of civilian review is to restore and maintain the public's confidence in the police. Delay in resolving complaints erodes the review body's ability to fulfill that function.

I believe that the chair of the review body should be appointed for a fixed non-renewable term. Ideally, the chair should be an officer of Parliament, in light of the national role the RCMP fulfills in the three territories and eight provinces.

Thank you for your kind attention.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Kennedy.

We'll move to Mr. Plecas, please.

[Dr. Darryl Plecas, Royal Canadian Mounted Police Research Chair and Director of the Centre for Criminal Justice Research, School of Criminology and Criminal Justice, University College of the Fraser Valley, As an Individual]

Good afternoon, everyone, and thank you very much for the opportunity to appear before you.

I am speaking to you as someone who has recently completed a number of research projects that I think might relate to the issue at hand. Two of those involved reviews of complaints against the RCMP, one in the Atlantic region and one in British Columbia, which was a 15-year review and analysis of complaints against the RCMP. More important was a five-year review of code of conduct cases against RCMP officers in British Columbia.

Those reports I can certainly make available to you. They're available online, I think, through our university, but to be sure that you have them, I will make arrangements to have them sent by email to you today.

The results of the review of the code of conduct cases, I must say, were disappointing to our research team. We had to conclude that the process of dealing with code of conduct cases in the RCMP needs to be such that there needs to be a greater amount of objectivity in terms of dealing with complaints, formally and informally, and a more independent review. Of course, that is being addressed, certainly to a large degree, by the proposed appointment of a commission.

The other thing that was most disturbing to us was the matter of penalties awarded to people who are found in contravention of the act and are guilty of code of conduct violations. In particular, the penalties that have been awarded do not seem to reflect at all the seriousness of the violations.

As it is, it would appear that dispositions reflect a clear tendency toward great leniency. In particular, that cluster of cases involving integrity issues, which is about one-third of cases, in our view, as we concluded, should be dealt with in the most serious manner. The RCMP should have zero tolerance for cases where people have been found to lack integrity. That threshold involving integrity issues, in our view, should be zero tolerance.

The new act, as I read it, appears, at least in spirit, to reflect the need to treat cases more seriously.

We're also encouraged by what has happened since the release of our reports. I think it's a fair comment to say there is a very clear awareness on behalf of the RCMP that change is needed and quickly.

There is also a clear recognition there needs to be that level of independence, which hasn't been there before.

There's a recognition there are things that need to be addressed that lead up to these kinds of cases happening in the first instance. That change is with respect to recruitment, selection, training, promotion, and the whole matter of messaging and changing the culture within the RCMP with respect to what's acceptable and not acceptable behaviour.

In considering these proposed changes overall, I would say that it certainly appears to be a step in the right direction. I wish there were a little more clarity on the whole matter of the level of dispositions awarded for one offence or another.

It's my understanding that the commissioner will now have greater leeway and discretion to dismiss people for some of these cases. That would certainly be a positive step forward, particularly given what's been the case historically.

In our review, for example, looking at some 80 code of conduct cases a year in British Columbia, it was almost never that someone was dismissed regardless of how serious the offence was. I will remind the committee that one-third of those were Criminal Code violations, and another third were integrity issues.

I'll leave it at that for now.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Plecas.

We'll move into our first round of questioning.

Ms. Bergen, please, for seven minutes.

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

Thank you very much, Mr. Chair.

I want to start with Mr. Kennedy.

Thank you both for being here. We appreciate it very much.

Mr. Kennedy, I'm going to go over the three areas you had difficulty with so I know whether I heard you correctly.

The first was on withholding certain information that would be available to the new civilian review and complaints commission. The other was on the review body being kept in the dark regarding the information they would be receiving. The third was on the service standards and no actual time limits or restraints on how long the investigation would take.

On the whole issue of information, I'm frankly a little surprised. We just had the current chair of the complaints commission here. We have heard from a number of other witnesses who are really pleased with the measures that Bill C-42 has taken in making sure the complaints commission could get the information that's required and could summons information and witnesses. I would like some clarification on how much further you think we should go on that.

In regard to the time constraints, there are pros and cons to both. When you put time restraints on an investigative body or a complaints commission, those can work against the complaints commission, just as if, were it open-ended and extended 10 years, that would obviously not be desirable.

I don't know whether it is a fair assumption that not putting time constraints on the complaints commission would automatically create delays. I would just caution all of us as we're reviewing this bill that certainly there are pros and cons to both. I would think this bill would intend to give the complaints commission the time it needs to do the job, as opposed to putting time constraints on the commission and then not getting the job done properly. It's looking at the pros and cons of both scenarios.

I just have a few moments, but I'll give you a moment to comment, if you'd like, and then I'd like to go on to Mr. Plecas.

[Paul Kennedy]

In terms of the information, Justice O'Connor had a two-phase inquiry. One was to look at the treatment of Mr. Arar, and the second was to make policy recommendations vis-à-vis new legislation for oversight of the RCMP, in his case with national security. He made very specific recommendations as to access, and said it should have access to everything except cabinet confidences and solicitor-client privilege. Otherwise, he said, there had to be access.

One of the precipitating factors in having to call the Arar inquiry, which cost about $20 million, was the fact that the commission at the time had no ability to ask the RCMP for the information, and the RCMP didn't produce it. What he recommended was to give the commission that power, the identical power that SIRC has, that the CSE commissioner has vis-à-vis this kind of information. He said that.

In this model, the commissioner can say that he has decided, with this privileged class, that they are not going to show it to you and they'll give it to some third party. Justice O'Connor specifically said you should be able to follow it, the body itself should determine what is relevant, that you don't need protracted litigation to throw it off. That has to be the way it is done.

That is not the case here. This is ignoring the recommendations entirely.

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

How much time do I have, Chair?

[The Chair, Conservative, Kevin Sorenson]

You have three minutes.

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

Okay. Thank you.

[Paul Kennedy]

The other thing is with reference to the privilege. Justice Major, whom I talked to, was scathing in terms of his comments that the RCMP over-claimed privilege, concealed information from him, and in some case a witness who wanted to testify, they claimed they needed the information for investigative purposes which wasn't true. He was scathing in that regard. Privilege is a problem.

With regard to the time limits I was talking about, they were not necessarily the time limits for the review body to do the work, but for the RCMP, which is a partner in this process, to respond and perform. You can always have outs for things that are complex. That's always the case. There have been protracted delays, in some cases years, for a document to come back that says, “I agree with you”. It's a one-page document and there's a two-year wait for it.

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

Thank you very much for that clarification.

I will say that in Mr. O'Connor's report he asked for extensive investigative powers, including the power to subpoena documents, compel testimony, and allow the review body to obtain the information and evidence it considers necessary to carry out its review and investigation. This bill does provide that.

Thank you very much for your comments.

Mr. Plecas, I'm wondering if you could tell the committee very briefly, and I think I'm probably down to a minute and a half, what kind of research you do. You mentioned that under the previous process the seriousness of the offences many times were not reflected in the penalty and in the consequences. You commented that it looks like the commissioner—and I believe it—under this new legislation would have more ability to discipline.

Can you talk about what the research says and what kind of message it sends to the rest of the RCMP, and the culture, when discipline is not equal to the severity of the action?

[Dr. Darryl Plecas]

I would say that, again, we were in somewhat disbelief looking at what penalties had been handed down over a five-year window in some 400 different cases. In the vast majority of cases, all that happens to someone is that they're given a reprimand and counselling. In fact, if you look, that's the case regardless of the category of offence. We're talking about Criminal Code cases, integrity cases, and in most of the cases all somebody is ever getting is some kind of slap on the wrist, if you will. I think this is precisely the kind of thing that erodes public confidence in the police. It certainly isn't a good reflection on the vast majority—95% plus—of the RCMP officers. Again, it seems to be a case of dealing with bad apples in extraordinarily lenient ways. We would think the last organization that would be doing that kind of thing would the RCMP.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Plecas.

We'll move back to the official opposition side.

Before we begin, we welcome Mr. Rafferty back. It's good to have you back, sir.

Mr. Garrison, please, for seven minutes.

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

Thank you very much, Mr. Chair, and thanks to both the witnesses for appearing today.

I'm going to focus most of my time on Mr. Kennedy, because I think he is the person who possibly has the most experience of anyone in dealing with police complaints, in contrast to the current occupant of the position who appears to have been appointed on a temporary and part-time kind of caretaker basis by the government. I really value what you have to say about your experience.

We had officials here a week ago. We were talking about the hierarchy of investigations they proposed in the bill, which seems to push investigations down to the lowest level, in other words, down to provincial investigatory bodies or other police forces. When I specifically asked Mr. Potter from Public Safety whether this would include the federal responsibilities for the RCMP, he answered that it would. For things like national security and organized crime, he said the legislation would envision that perhaps the British Columbia Independent Investigation Office would investigate complaints in those areas. Do you have any comments on that? I was quite surprised by that answer.

[Paul Kennedy]

That's two of us. I didn't see that in there. I know there was going to be reference to provincial bodies with respect to criminal investigations, but it sounds redundant to have provincial bodies do complaint reviews in the areas that you just described. I don't think that is the case. If that is the case, fine.

I think what you have here is the civilian body has responsibility for complaints. The discipline thing is a federal one. If there is an allegation of a criminal activity, the criminal activity can be pushed down to the local provincial body because some of the jurisdictions, such as British Columbia, now have ones that do non-police officer investigations. They're like the SIU in Ontario. Alberta has a model as well to do criminal investigations of officers, but not to do discipline or civilian complaints.

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

Thank you.

I was interested in your remarks about your belief that the chair of the commission should be an officer of Parliament and have a fixed term. Can you say a little more about the advantage of that in terms of the independence of the commission?

[Paul Kennedy]

It's not just independence of the commission, although that's important. In the last number of years we've seen some very, I think, contentious issues for which the RCMP has been brought before parliamentary committees. There was the pension income issue, and so on.

As a lawyer, a former barrister, I felt uncomfortable watching what was happening before the committee, because it was a highly partisan environment. You can challenge that if you wish. I thought it was very difficult for witnesses to appear. Natural justice seemed to take a back seat to many issues. Counsel could attend, in that case, with the commissioner of the RCMP, but could play no role. And members were being played against each other. I found that to be very unsettling in terms of both the reputation of Parliament and the reputation of the force and the members.

Because the issue you were dealing with was important to Parliament, I would have preferred it if you could have turned to a body such as ours, at the time we had the power, and said, “Will you look at this? These are our concerns. Go off and do it in a format whereby people have rights and due process, and then produce a report that responds to the needs of parliamentary committees”.

As a lawyer before a court and who is familiar with the charter, I felt very uncomfortable. To be quite candid, it looked like 16th century England in terms of how that matter was handled, and I don't think it helped anyone. I think a committee could actually help you.

The other thing is that we're dealing with a national institution. I think it's important that all members, and your constituencies, because you come from across the country, have faith that the role is being properly fulfilled and have faith in the person carrying it out.

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

I'd like to follow up on the question Ms. Bergen was asking you about privilege. If I understood you correctly, you were making a somewhat different point than her response. Yes, the new civilian review and complaints commission will have additional access to information, but what you were talking about was the ability of the RCMP to deny information.

[Paul Kennedy]

That's right. It's that sufferance. There's a minor category of information that says it is strictly privileged and you won't get access to it anyway. There's a solicitor-client piece, and there is a piece dealing with medical records. There are some things dealing with minutes from the commissioner of the RCMP discussing how it would interact with the commission. I have absolutely no problem with that. As a matter of fact, it mimics to some extent the protocol that exists between SIRC and CSIS, and it makes sense.

I have a problem, though, with the other one, which is a vast description of privileged information, which is actually broader than it shows here, because it brings in other sections of other statutes, which get piggybacked on. That is a provision that can be triggered by the commissioner. Then you don't get it and you don't get to see it. It goes to some third party who's appointed, who makes the decision following your observations. That decision is even binding. It's just observations. If you don't like the observations, you can go to the Federal Court to challenge them. Meanwhile, you're absolutely in the dark.

The experience of two learned justices who held inquiries was that they had to be able look and follow the trail. That's the specific language used by O'Connor. You have to look at it. He said that sometimes he didn't recognize its relevance until he saw it. His view, and it's the view I know I would submit to, is to look at it, and then you can have a discussion as to whether it's relevant. But to put the review body in the dark where it can't see it, and in the blind make a submission to get access, while a party that is not formally part of the process is making observations, does not strike me as reasonable.

You have to bear in mind that the commission's staff has top-secret clearance. There has been no adverse experience by SIRC staff or members nor CSEC staff or members. O'Connor specifically said that there's no problem giving the stuff to these folks.

I've had top-secret security clearance for about 26 or 28 years. There's no problem. You should share it and move on with it.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

We'll go to Mr. Hawn, please, for seven minutes.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Mr. Chair, and thank you, witnesses, from near and far.

Mr. Plecas, you may not be equipped to answer this, but part of the whole package, at the end of the day, is going to be not just the bill but the regulations that are drafted that implement the bill.

From what you have seen of the bill and what you might think are shortcomings, do you see the regulation drafting process as a way to redress them and refine them into something that would be more effective and relevant?

[Dr. Darryl Plecas]

I would certainly hope so.

One of the things I'm reminded of from our review, if you can believe it, 85% of the time that there is a code of conduct case, and remember that code of conduct cases are serious, those cases are dealt with in an informal manner. What would be the process to ensure there is a proper and independent vetting of that so that cases can't be scaled down when they more properly ought to be dealt with in a formal manner?

When one considers—or at least we found—it's the entire spectrum of code of conduct cases, hopefully those regulations would be such that they would provide some assurances to any outside observer that every case is being given full consideration.

Maybe I'm missing something in the proposed changes, but I'm not sure that's happening or could happen with what's in there right now.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Okay, I think what maybe falls under that.

You addressed the issue of other institutional changes required, in recruitment, training, and so on, which comes down at least partly to culture. You talked about wanting more clarity on penalties in relation to specific offences.

I'm thinking back to my DND experience. There was a table of offences and a table of penalties. Are you talking about that sort of thing, not to restrict, but to guide the disciplinary process?

[Dr. Darryl Plecas]

We may well be missing something here, but there doesn't seem to be a problem in terms of articulating what ought to constitute a violation. I'm not sure changes would be necessary. Again, it's the whole business of deciding on appropriate dispositions.

It's two things. First is to decide whether or not something should be dealt with in a formal manner. Second, if it turns out through the investigative process at the hearings that there has been a violation, that there is some assurance that certain kinds of penalties will be in place to reflect the seriousness of the act.

Again, if there is one thing that's glaring about cases historically it's that there has been a never-ending effort in the past to minimize the seriousness of offences through the way in which they're dealt with, and to minimize them again through the kinds of penalties that are handed out. I don't think any reasonable outsider could look at the penalties that are awarded and think for a second that they in any way reflect what should be given as a disposition to anyone, let alone a police officer.