Public Safety Committee on Oct. 22nd, 2012

[Laurie Hawn, Conservative, Edmonton Centre, AB]

At the risk of using a term that's been used in other contexts, are you suggesting something like mandatory minimums for whatever offence?

[Dr. Darryl Plecas]

Let me put it this way. I would say something as close to that as possible, particularly on integrity issues. For example, one could never be hired in any single police force in Canada if there were any indication of an integrity issue, so why would we have a situation, when people are found guilty of integrity issues, that they're allowed to continue in their work? Why do we look at integrity issues as being something which can be fixed, that there can be some remediation on?

That may well be for people who are outside policing, but I think every citizen has the right to expect that every single police officer is beyond reproach and that they work in an organization that is going to have a zero tolerance for that, period.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Yes, I think most people would probably agree with that.

One of the things they're trying to do with Bill C-42 is push the disciplinary authority down to the lowest possible level, presumably to speed it up and so on.

In your reviews of this process, did you look at that at all with respect to the training required down to the detachment commander level? Whether it's a corporal or a staff sergeant, whoever is commanding the detachment and has the authority to administer discipline would presumably need some kind of training and guidance to make him or her more effective.

[Dr. Darryl Plecas]

At least in our assessment, the detachment commanders or unit commanders certainly don't know how to deal with the cases. The problem, it would seem to us, is that those people perhaps aren't the best people to make the decision about what ought to happen because they're so close to the individuals involved. One could argue there's no assurance to outsiders that the review of the case is going to be done in an independent fashion. There's no assurance that it won't be minimized, dealt with informally when it should better be dealt with formally.

Now, arguably, through the regulations, the commissioner can do things to help ensure that doesn't happen. I guess we would have to wait to see what those are. Having said that, I think what's happened in the last couple of years, which has not happened before, and is perhaps one of the big reasons for Mr. Kennedy's concerns, is that it hasn't been clear that there's been a level of transparency and openness on these issues that we should expect there would be. There hasn't been a culture which causes people to understand that those kinds of things—objectivity, transparency, independence—are paramount. If you don't have that, then don't even get started.

I'm assuming, given the extent to which the changes to the act capture the spirit of the need to do that, we will have a good opportunity in the next few years to see the extent to which the RCMP is able to deliver on that and the commissioner is able to develop regulations which point in that direction. Certainly everything he said recently would suggest that he's fully committed to doing that.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Plecas.

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

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Thank you, Mr. Chair.

Mr. Plecas, I would like to continue with you.

According to the way it's been described, how did we get to the point where a law and order organization like the RCMP is believed to be minimizing infractions of the integrity code, for example, turning the other way, or simply not being as strict as one would expect a police force to be? How did it get to this point? It is counterintuitive, as you said.

Is it that the internal disciplinary system got so bureaucratic that people would just resolve them? Perhaps they resolved them with a slap on the hand and they were not being as strict as they could be in order to stay away from the labyrinth of the disciplinary process and its appeal mechanisms.

Is that what happened? Did the internal disciplinary system become too bureaucratic and that led to things getting a little lax, or is there something else that's going on? Does it have to do with cronyism?

There has to be a structural explanation somewhere. As you said, we all know the people who go through the RCMP are the best. They meet high standards. They're well trained. They go in with high ideals and so on.

What explains the fact that the culture needs to be changed?

[Dr. Darryl Plecas]

You used of the word “cronyism”. I'm thinking there's a little bit of truth to that. Certainly in some cases I think there's been this overwhelming desire to be remedial.

I guess there's been a failure to fully appreciate what it means to be a police officer. There's this sort of underlying level of forgiveness of their own. That probably goes back a long way with people having been able to get away with things for so long and people not getting serious consequences. I think it's problems in training where people make mistakes and ought to be given the boot right in training and aren't given the boot. It has been this way, I would say. I'm not saying it's like that right now, but I think historically there has been some level of tolerance for misbehaviour, for whatever reason. I wish I knew why, because for me it's mind-boggling that the RCMP hasn't been able to get this. In many of these things that we're talking about, if you had a chance to review these code of conduct cases, you would see that it wouldn't matter where you were working, you would be dismissed from your employment. It's not a case of—

[Francis Scarpaleggia, Liberal, Lac-Saint-Louis, QC]

Right. I don't mean to interrupt you but I have limited time.

My next question is related to that. Are things different in other forces? If things got lax in the RCMP, could it have something to do with the fact that for many years we didn't have CSIS?

It seems to me the RCMP was occupying the role that CSIS has now. Therefore, it probably felt it was in a privileged position to protect national security at a very high level and therefore it might have to undertake some initiatives that might not be entirely within the law. We saw that in the mid-seventies, and so on. Is it because it thought that it was not the darling of the government but that it had a very important role to play in protecting the government and our society from security threats, and that it might have to take extraordinary measures, almost covert measures, to accomplish those goals?

Do you think the fact that we didn't have CSIS at the time and that a lot of the responsibility was on the shoulders of the RCMP made the RCMP perhaps feel it had a privileged position?

[Dr. Darryl Plecas]

No, and I'm very familiar with that. To answer your question as to whether it's different in other police agencies, I would say it's certainly different in police agencies in municipal departments in British Columbia. They certainly wouldn't tolerate some of the behaviours that have been tolerated in the RCMP. I think some of the police managers in the B.C. municipal level would find it laughable. At the same time they feel hurt by it all, hurt that this is allowed to continue.

It's not like the RCMP is trying to escape something here, and that's told by the number of times they so very quickly are ready to bring people forward on some kind of disciplinary action when they do something wrong. When you look at these cases, the vast majority of them are brought to the attention of the RCMP by the RCMP themselves.

Again, I think the big issue is the matter that once somebody has done something wrong they're so quick to downplay the seriousness of it. I think that comes back to their desire to be remedial, thinking that the person could change. Again it's ironic because they certainly would never tolerate it in considering an applicant. This could be very well corrected by having a mechanism whereby certain kinds of offences are automatically treated as formal. I would say that every single integrity case, as we recommend in our report, and every single violation of the Criminal Code are serious from the get-go. Then perhaps the penalties assigned to those would be at a certain level to begin with. That's not to say it could never be fitting to give somebody a warning or something like that, but I would say in the cases that I've seen, that's not likely.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

I will now move to Madame Doré Lefebvre.

You have five minutes.

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

Thank you, Mr. Chairman.

Mr. Plecas and Mr. Kennedy, I want to thank you for having come to share your point of view on Bill C-42 with us. We greatly appreciate it.

[Dr. Darryl Plecas]

Thank you.

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

Thank you.

Mr. Kennedy, in the bill, proposed new clause 45.74 provides that the new commission must suspend any inquiry at the request of the RCMP commissioner if that person considers that the inquiry interferes with an ongoing criminal investigation.

You have a lot of experience in this area. Honestly, are you in favour of that provision in Bill C-42, or do you think it interferes with the autonomy of the commission that is going to be created?

[Paul Kennedy]

Yes.

First of all, it's a contradiction in the section to have a provision that gives the chairman the ability to consider this fact situation and decide that the appropriate course of action is to suspend the hearing or process. Presumably, if the commissioner doesn't like the ruling, in other words, if the chairman of the commission decides it should proceed, the chairman could be overruled by a letter from the commissioner saying that it's going to interfere and therefore it shall stop. This significantly erodes the credibility and independence of that commission.

Certainly during the four-plus years that I was chair, cases of that nature came up. Bear in mind that indictable offences, which are serious offences, have no statutory limitation period. That's why you hear about the famous cold case files that will sit around forever, and in 15 or 20 years, they're opened up.

I had cases that came up with a complaint dealing with this kind of issue, dealing with the professionalism and so on of the investigation that was being conducted, which didn't terminate in the sense of finding anyone who was being charged, and so on, and yet the police were professing that it was an ongoing investigation. It was ongoing in the sense that, yes, technically you never closed it, but that doesn't mean that if you have it and you haven't found anyone, no one can look at your investigative activities.

As well, we had issues where something would be tangential to what we were looking at. We had a complaint dealing with particular activities. I think it dealt with a failure by the RCMP to warn the community that there was a chap in the halfway house who had a propensity to attack people and commit murder and mayhem. That was the issue. They came back to me and said they were still looking for the person who did this dastardly deed. Therefore, it was an ongoing investigation.

No, thank you.

The issues are how you behaved here and the failure to provide notice. It's a provision that can be subject to mischief in terms of its scope. I've clearly had cases where I have looked at it and said, no, that there's an ongoing coroner's inquest, criminal investigation, or criminal trial, for instance, and we'll suspend our proceedings until those activities are resolved, and we do it.

I'd like someone to point out where there has been inappropriate response by the commission. When I looked at the tasering of the Polish gentleman in B.C., clearly there was an investigation, part criminal and part coroner's inquest. It was hard to sort out. I held off until that was concluded. Prudent judgment had markedly not been exercised. If you want to have credibility, the provision whereby the commissioner gets to send his letter over and stop it should be deleted. Otherwise, you're going to have a commission that has zero credibility.

It's been undermined in terms of access to information, and undermined in that context as well.

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

You mentioned in your presentation that this caused a credibility problem. The culture of the RCMP is already being questioned by the population in general. The population has a certain lack of confidence in it.

[Paul Kennedy]

There are provisions for review bodies that don't exist in any other legislation. Why the government spent all the money it did on the Air India inquiry, the Brown task force, and the O'Connor inquiry, to then ignore their recommendations is beyond me. It's a step backward. The only thing that is a step forward here is, until about 2004, the RCMP could actually conceal from the commission that it had information by not disclosing to them that it had it. They would just look at it, assume it was privileged, and they would never even tell you they had it.

A court case requires them at least to tell them there is a case here, that it's classified, that it's privileged, and they're not going to give it to you. At least you knew you were being denied something. Until 2004, the commission that had been established didn't even know that information was being withheld from it. This is intolerable. It's easy enough to put in a provision, and you have access. You have a regime whereby the RCMP says that is classified, it's privileged under the Security of Information Act, that when you release your report, don't disclose that information.

Public disclosure is different from the review body when it's doing its investigation, making its findings, and making its recommendations. It's fully informed as to what it's dealing with.

[The Chair, Conservative, Kevin Sorenson]

Thank you.

We'll move to Ms. Bergen, please.

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

Thank you very much, Mr. Chair.

I need to clarify a couple of things for the record.

Many of the recommendations in Mr. O'Connor's report are in Bill C-42, and I'm reading from the bill:

45.39 (1) Subject to sections 45.4 and 45.42, the Commission is entitled to have access to any information under the control, or in the possession, of the Force that the Commission considers is relevant to the exercise of its powers, or the performance of its duties and functions, under Parts VI and VII.

We move along to where it says:

45.4 (1) In this section and sections 45.41 to 45.48, “privileged information” means information that is subject to....

It lists client-lawyer privilege, the witness protection program, the security of Canadians, and then medical information. Even if that is deemed to be privileged, that decision would then go to:

...a former judge of a superior court of a province or the Federal Court or an individual who is a member of a prescribed category of individuals to review the information and make observations to the Commission and the Commissioner.

I do understand, Mr. Kennedy, that you think the commission should have complete unfettered access at all times to all the information. There is some protection for all Canadians, that they are innocent until proven guilty. There is some protection for Canadians regarding privileged information.

With regard to when investigations that the commission would be looking at when they cross over to criminal investigations, it would appear that you would agree they should be suspended. You're just saying that you believe the commission should have the ability to say that, and the commissioner should have no ability to say that. I guess, under this bill, it would also give the commissioner of the RCMP the ability to say, “This is a criminal investigation. We're going to move it now to...”. If it's a serious incident, there are several processes to set up, whereby there will be investigations.

I think that we are in agreement that with the spirit and intent of this new bill—and Mr. Plecas, I'll come to you as well—we are moving forward with some much-needed changes to the RCMP. We're giving the commission many more powers, tremendous powers that they've not had before, as well as the commissioner, the ability to do his or her job.

Mr. Plecas, you said things like, the desire to be remedial is so strong, that there's a high level of tolerance for misbehaviour. When you look at modernizing the disciplinary processes whereby the RCMP right now are able to discipline complaints of lesser seriousness, do you think that with the ability to deal with things at a less serious level, it will send the message? It's like the broken window analogy, where you deal with things immediately and you deal with things, sometimes with education, sometimes with mediation, sometimes with discipline. Will it send a signal. Do you think your research shows that there would be an effect? Would members see that accountability is now required under this new act?

[Dr. Darryl Plecas]

Personally, I think one important thing is that the proposed changes to the act are a godsend. There's no question this is helpful, and the committee, the government, and the RCMP are all to be commended on having brought this about—the idea of changes—so quickly.

One of the things we would want to have in mind is to look at what falls under the umbrella of code of conduct cases. We're not talking about things where the average person would say that it's a relatively minor kind of thing between an employer and employee. Probably one-third of them would fit into that category.

Of course, wherever it's possible to do things like restorative justice, mediation, deal with things generally and outside of police, in the least intrusive manner possible, that is wonderful. But I think when it comes to a police officer who has been found doing a criminal act, an integrity issue like turning information over to organized crime, I don't even want to hear that it's been dealt with on an informal basis.

Unfortunately, some of the things we're talking about here are in every sense of the word very, very serious acts. At the end of the day, historically these cases have been dealt with informally and in a very lenient manner. That needs to change. I think it needs to change for the benefit of all officers.

I think the changes will certainly have an impact on every single officer. I think every single officer out there at least ought to know, be on high alert, that some of the things that used to be tolerated in the past won't be tolerated in the future.

I know it doesn't sound very forgiving, but I think we have to say to every single police officer, inside and outside the RCMP, “Forget it. If you commit criminal acts, you lack integrity, you will be held accountable, and you will be dealt with in a very severe manner.”

[The Chair, Conservative, Kevin Sorenson]

Thank you, Mr. Plecas.

We'll go to Mr. Garrison please.

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

Thank you very much.

I want to go back to Mr. Kennedy and ask about the restrictions on the ability of the commission to commence investigations on its own initiative. In proposed subsection 45.34(2), it says that the commissioner shall be satisfied that he has sufficient resources and that no other entity is already investigating.

Do you find these to be necessary restrictions, or are these restrictions that would impact on the independence of the commission in a negative way?

[Paul Kennedy]

It certainly doesn't put a lot of confidence in the ability of the commission to manage its workload. The matter that captures my attention and that is important, for instance, is what I would call a chair-initiated investigation.

I'll give you an example. I get a taser complaint, and I make a ruling on it and share it with the commissioner. I get another taser complaint and it's the same thing. I get another one and it's the same thing. There would never be a response. I would say, wait a second, all these taserings are indicative of maybe a bigger problem. I would launch a chair-initiated complaint and I'd look at a broader range and ask what is actually going on across the country.

That's what I did with the tasering file. That's what I did with the issue of whether or not the police could investigate the police. Instead of dealing with one-offs, it's like a squeaky wheel. These little complaints are squeaky, and they tell you there's something out there.

Instead of dealing with 20 of these each year, it's actually more cost-effective to go in and do it properly, do a proper analysis, a comparison of what's going on in other countries, and then come out and do it. We changed the behaviour of the RCMP vis-à-vis tasering, which was hard to get done. Obviously the Dziekanski affair helped to bring that to the public's eye.

But follow up each year to find out how they are using it. If we hadn't done it, we wouldn't have known that 13-year-olds who were joyriding were being tasered . These were not usual situations. They popped up fairly often. Once you do that, you can start finding where the actual problem is. If you let someone manage an organization effectively, you get a better result.

The other one is asking, what do you mean by no other entity investigating. You have a national police force. What are you saying? Are you saying that someone has an inquiry dealing with a similar issue in one of the provinces and therefore you don't do something?

Well, I can tell you, when it came to tasering, as an example, there were a series of inquiries. Not only that, across the country each jurisdiction had its own policy. If you looked at different police forces, they were all different.

Are you going to sit back and say, wait a second, what is the RCMP as an institution doing? It should be what do we recommend that it adopt as a standard across the country that it, as a force, should do? Otherwise, you're going to have this force that is absolutely dysfunctional, with different models across the area.

By the way, when I did that, I frequently shared my product with my provincial counterparts, who didn't have the financial resources to do it. We would meet each year, and I would share that product with them. They were extremely grateful for that.

Let the organization manage itself properly, and you'll get a better product, and the RCMP will be a better service.

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

In your initial presentation you laid out what you saw as four deficiencies in the act. We've heard Ms. Bergen on the good intentions of the government. Do you believe that these deficiencies actually undo those good intentions as far as the credibility of the commission is concerned?

[Paul Kennedy]

At one time I said facetiously, but maybe colourfully too, so you're allowed to smile if I say it, that this looks like the model of the horse that has decided what saddle it wants to wear. In this case, the RCMP is the horse. This is very user-friendly for the RCMP, but it is not credible vis-à-vis the public. If you want to have something that is modern and effective, you have to look at what has credibility with the public.

If you have an independent, credible body doing things in a responsible fashion, and you're concerned about whether you can trust it, then appoint someone competent to run it who knows the area. Then you'll get good product. They will get good service. You'll be able to achieve the goal they talked about in the task force, which is to maintain and restore the public's confidence in the RCMP. This undermines it.

One of your colleagues talked about the two provisions in the proposed section shown on page 40 and 44. One provision is an absolute privilege. It talks about lawyer privilege. The lawyer privilege is between the member and his lawyer. If you look at the privilege part, in proposed paragraph 45.4(1)(a), it says “exists between legal counsel and their client”.

The client could be the RCMP. That would mean when an officer sits down with a police officer to discuss laying charges and what he or she should do, conversations would take place. You can claim legal privilege on that. It's different from the privilege between a member being charged and his need for it.

I can tell you that we would not have been able to do the Kingsclear case, which was a series of rapes of young boys in an orphanage that went on for 20 years and the failure to follow up on it, without the ability to find the discussions that took place between the crown and the RCMP to point out what the failures were.

These provisions undermine entirely the ability of this body to do its work.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Mr. Kennedy.

Our time in this first hour has come to a close.

We want to thank both of you, Mr. Plecas and Mr. Kennedy, for your submissions today, and for your attendance via video conference and your presence.

We're going to suspend for about one minute to allow Mr. Kennedy to make his exit and to invite our other guests to take their place.

In our second hour, we're going to continue 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. We're hearing from the Royal Canadian Mounted Police today.

We have Chief Superintendent Craig MacMillan, who returns with a little different hat today as the director general of adjudicative services. We also have Alain Jolicoeur, chair of the audit committee.

I would invite each of you to make a brief opening statement, and then we'll proceed with a round of questioning by members of the committee.

Mr. Jolicoeur.