Public Safety Committee on Oct. 22nd, 2012

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

In this bill, would some sort of mention have been useful to the work you're trying to do and trying to move forward on, or would it have been detrimental?

[C/Supt Craig MacMillan]

I'm not sure what it would contribute, because the minute you enshrine it in the legislative piece, that's what you have. I'm not quite sure how you're thinking of crafting that, but I would rather have the ability to say that it's the responsibility of the commissioner, Treasury Board is going to say that, and we're required to do it, and then create the processes that enable you to ensure that's happening.

It took them 20-some years to get the legislation amended last time, after the Marin commission. In some ways, we're paying homage to Marin, because we're trying to be more remedial and corrective. In other instances, we're not accepting some of the things that were there. A series of other reports have in some respect talked about that.

I think we can build the processes that deal with sexual harassment and harassment issues.

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

That leads me to the question of the punishment fitting the crime.

You indicated that you have some experience in municipal police forces, and that all police forces seem to deal with things in much the same way. That's also my experience today.

I don't know if you ever worked in uniform recruitment or not, but if someone is found to be lacking, for example, to be guilty in terms of driving under the influence, or shoplifting, or harassment, and they come to the police force looking for a job, and that's there, would they be hired?

[C/Supt Craig MacMillan]

Having a criminal record does not necessarily mean you won't be hired, because if there's a pardon in process, it would go to the character of the individual and whether you could hire them.

I'm giving you an evasive answer to the extent that I know we've hired people who may in the past have had a conviction, but they've received a pardon. It might have been for assault or something like that, and it happened a number of years ago, when they were 16 or 17. They're now 28, they have a whole series of life experiences behind them, and they can demonstrate integrity and character.

Some things are certainly going to preclude you from going into policing, but I wouldn't want to be so specific as to say you could never do that.

[John Rafferty, NDP, Thunder Bay—Rainy River, ON]

Thank you very much for that answer.

How much time do I have left?

[The Chair, Conservative, Kevin Sorenson]

Your time is up. It was an interesting answer, so I gave you an extra 20 seconds.

We will now move to Mr. Payne, please.

[LaVar Payne, Conservative, Medicine Hat, AB]

Thank you, Chair.

Thank you, gentlemen. There have been some very interesting comments today.

Mr. MacMillan, you talked about offences. You have some informal process, I guess, for figuring out what the discipline would be for particular offences. In one instance, you talked about a DUI and getting seven to 10 days off. Could you give us an idea of how that was developed and what kinds of things are in there in terms of discipline?

[C/Supt Craig MacMillan]

In our formal discipline process, which is where you go before a board, because we have what I'll call prosecutors and defence counsel—we have different terms for them—they have access to a database that contains all of our decisions. They can search for a term such as “impaired driving” or other things like that, and the database will produce a series of cases. They review those cases and determine how a case is the same or different. Most of them have experience in this area and will develop their own tables, which they'll have with them, so they'll know what you're talking about.

In informal discipline, we have advisers available. They will consult with these representatives. When you're talking about informal discipline, there's no board involved. Again, there's experience. There is a range of sanctions that you know are imposed under certain circumstances, and then you take your aggravating and mitigating circumstances into account.

Other departments have gone with a more formalized process. I don't know if it's abuse of authority with no aggravating factors, you're going to get three days or five days, or 10 days if it's serious. I saw that in the FBI context.

We clearly will have to move in that direction, because the decision-making is going to be at a lower level. In the more serious cases, which are now going to be below dismissal, there will be a group in there that previously would have been through a board. That's going to be less formalized. It's now going to be in the non-board process. We're going to need to have mechanisms in place to ensure consistency and ensure there is an understanding of the facts and the range of sanctions that would be imposed in that instance. There will have to be some clear work done in that area.

[LaVar Payne, Conservative, Medicine Hat, AB]

That has to be through the consultative process, then?

[C/Supt Craig MacMillan]

We have some nominal draft measures that we have created within the legislative reform initiative that Superintendent O'Rielly is running. We will take those to the stakeholders and ask if there is anything that they could add or take away.

I can reflect on what Marin said. You have to have flexibility in sanctioning. I think they lost that a little bit when they actually got the 1980 act created. I understand what they were doing at the time, and it was right for the time, but more than one day's pay or 10 days' pay was pretty significant then. I think we just have a little more room to manoeuvre, and we can be a bit more innovative in giving flexibility to managers and the employees involved to maybe come up with appropriate sanctions as well, taking into account the circumstances.

[LaVar Payne, Conservative, Medicine Hat, AB]

We've also heard about timeliness of reviewing these complaints. Maybe you can see how this is going to change under the act and give us some information on that.

[C/Supt Craig MacMillan]

The commissioner can certainly have the ability to create rules around investigations and timelines. We've talked about that. There are people who would say not to have timelines, because you always get in trouble, and others would say to have very specific and tight timelines. I know of jurisdictions that have gone with a very clear prescription, and it has not been very successful, because nobody is in compliance with the timelines.

I think the distinction is—I can't necessarily speak for the drafters—that when you have an independent external body, such as the ERC or the CRCC, the notion that you would set out in the legislation that they will have service standards is slightly different, because they're to be independent. But with the RCMP, there is the ability of the commissioner to create rules, and more specifically, I guess, the minister could give a directive on that. He has given a directive to us on creating an annual report and dealing with discipline and some aspects of that. I think that can be built in. If it's not working satisfactorily, there could be some feedback from the minister's office on that.

[LaVar Payne, Conservative, Medicine Hat, AB]

Okay.

We've also heard about these individual provincial oversight committees. Could you give us some comments on that? Do you see those being beneficial? Would they be cost-effective? What impact would they have?

[C/Supt Craig MacMillan]

I think there is some cost-effectiveness to it, but I also think there's an important component of creating through that the ability to have public confidence and stakeholder-contract partner confidence in the process as well. To be clear on it, the public complaint will still exist in the CRCC; they'll have the ability to review that. But if it's a serious incident, where there's criminal misconduct or a serious injury, you'll have the ability to have these external bodies review it. That's because they would have the criminal jurisdiction, essentially. They would then report to crown counsel, who could make the decision on whether there would be charges laid.

If the independence is the key factor, and clearly it is, as these are independent bodies, you need to integrate service delivery. We're in a time where it's hard even for us to be doing investigations all over Canada in relatively serious incidents, so I think that having local bodies available and qualified to do that will be very important in having trust and confidence.

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. MacMillan.

Mr. Garrison, please, for five minutes.

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

Thank you very much, Mr. Chair.

In dealing with discipline in the bill, I don't recall seeing any section which talks about certain things being excluded from the informal resolution processes.

Is there any section in the bill that covers that?

[C/Supt Craig MacMillan]

Yes, there is something about that. When a public complaints is involved, you have to inform the CRCC.

I think there's an ability for them to say what things might not be subject to informal resolution or early resolution. I could look, but I don't want to take up your time doing that.

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

It makes me feel better that you don't know either, because I've been trying to find it.

My concern would be that there ought to be such a list, as there are sometimes things that if they were subjected to an informal process could inflame rather than solve the situation.

Could you tell me a bit about your experience with informal resolution?

[C/Supt Craig MacMillan]

I've done informal resolutions in private practice,as a lawyer, with municipal police departments, and I've been involved in informal resolutions in the RCMP.

The key component of this, really, is the fact that there's protection for conversations between the parties, the complainant and the police officer and the supervisor. My advice in the early days was to get in the room, if this was something that could be solved, and get it done, knowing that it can be protected and you can resolve these things. It is very important.

But there is the potential of it being inflamed. I think the CRCC will have the ability to also participate if there's a public complaint and perhaps provide mediation.

My colleague has just pointed out proposed subsection 45.56(4):

The Governor in Council may make regulations prescribing the categories of complaints that are not to be resolved informally by the Commissioner.

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

Thank you very much. That's the section I was looking for.

At this point there is no list that will be—

[C/Supt Craig MacMillan]

Presently you can resolve pretty much anything, if the parties are in agreement and there isn't a mandatory review by the CRCC or there will be.

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

Does the clause say it will be set by the Governor in Council?

[C/Supt Craig MacMillan]

Yes, through regulations.

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

It will be through regulations.

My last question for both of you today is, were either of you consulted in the process leading up to the preparation of this bill? Did you participate in any way in the drafting of or provide input on this bill?

[C/Supt Craig MacMillan]

I originally was the senior special adviser to the legislative reform initiative, so I had participation in this.

While it's correct to say that the staff relations representatives were not consulted in the drafting component of it, because of the unique way it unfolded, where you had Bill C-43 as a predecessor bill, there was consultation and discussion with various stakeholders, presentations, town hall meetings, and feedback on what was essentially going to be a public service model. That did inform and influence what we did, and it was taken into account.

After the bill was introduced, we entered into, as Staff Sergeant Townsend confirmed, the consultation phase that we will continue on.

So, yes, I was consulted.