Public Safety Committee on Oct. 29th, 2012

[Tom Stamatakis]

One concern is that there doesn't appear to be any distinction between the types of examples of conduct or misconduct that Mr. Hiebert is referring to versus allegations of criminal misconduct. That's one big concern.

The other thing is that in other provincial statutory regimes that exist to deal with police misconduct, there is an obligation to provide a statement. I would tend to agree that typically in an employee-employer situation, employees are obligated to account. In those provincial statues that have been established to deal with misconduct, there are also protections for the officers so that when those statements are provided in response to a complaint around rudeness or what would typically be viewed as minor or less serious misconduct, there are protections so that those statements can't be used in some other form. Bill C-42 doesn't appear to contain any of those similar kinds of protections.

We have to recognize that when you are dealing with police officers, it's not just going to be an investigation into misconduct within the context of a police act or within the context of the Royal Canadian Mounted Police Act; there typically will be a civil suit. There will probably be some kind of a coroner's inquest. There may be a public inquiry. There may also be a criminal investigation.

That's where you have to find the balance. You have to create the mechanism for an employer, whether it's the RCMP or some other municipal or provincial police force, to be able to get the information they need and to be able to respond to the public, but while doing that, provide some protection so that information can't then later be used in some other process that puts the police officer in a significant amount of jeopardy, and even the organization in some jeopardy, with respect to civil litigation or other risk management issues.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much. We're out of time on that question. I will take note here that Mr. Mukherjee didn't get the opportunity to answer that question. I'll certainly give him time on the next round.

Mr. Garrison is next.

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

Thank you very much again to all of you who are appearing here today in person or by teleconference. We do appreciate your testimony and we think it has been very interesting and important. We would have like to have had more time, but the vagaries of scheduling and certain limits imposed by the government have meant that we have less time than we would have liked.

Mr. Stamatakis, when you talk about the ordered statements and the question of warrants for seizure of evidence, are you asking us today simply to delete that section from this bill? Would that be the solution?

[Tom Stamatakis]

In my view, yes, that would be the solution.

Again, there has to be some distinction between the types of conduct issues you are looking at. I can't think of any other example in any kind of statutory regime or oversight process that is designed to deal with issues that arise from employment in any other sector or within any profession in which there is this wide authority to search. Most police officers—and the public—generally would expect that if there's an allegation of criminal misconduct, the investigating body would enter into a criminal investigation. Then they would have all the provisions that are available to them through that process to search where appropriate.

When we are dealing with an administrative process looking at issues related to employment, I can't think of a time when it would be appropriate for a person's home to be searched to obtain documents that are typically widely available in the workplace in any event. That would be our submission, yes.

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

Okay.

Dr. Mukherjee, I would like to ask you about your comments on subjecting the ability of the commission to do independent reviews to limitations. The bill raises the question of resources. It also says it would be prohibited if an incident was being investigated by any other government entity. Should these two limitations be reviewed or removed from the act to make it more independent?

[Dr. Alok Mukherjee]

I think those are the—[Technical Difficulty—Editor]

It is important for the commission to be able to identify a pattern and then initiate an investigation. I don't think those reviews should be subject to availability of resources or other investigations.

I can give you an example. In Toronto recently, relating to the G-20, the Ontario Independent Police Review Director decided to undertake a systemic review even as he was dealing with individual complaints. At the same time there were a couple of other reviews going on, such as by the Ombudsman of Ontario and by the Toronto Police Services Board, through an independent reviewer. What we found was that each of these reviews brought out different pieces of information. They did not conflict with one another and they produced a very rich array of findings that was very beneficial. I don't think there should be restrictions.

The other concern I had is that sometimes the spectre of criminal investigation can be used to stop or deter such reviews from happening forever. I have faced that personally in Toronto, where a similar argument has been used to stop some very significant reviews from taking place in the public interest. Those criminal investigations will never be concluded, so those reviews will never take place. We have to worry about the impact of these restrictions.

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

Thank you very much, Mr. Mukherjee.

Any little time I have left I'd like to give to Madame Doré Lefebvre.

[The Chair, Conservative, Kevin Sorenson]

We'll make sure she gets her time.

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

Thank you kindly, Mr. Chair. And thank you to my colleague. I will keep it short.

Mr. Girard and Mr. Delisle, I appreciate both of you being here and giving the committee the benefit of all your experience. I think we really need it.

When you read Bill C-42, you see that the appeal process for a member begins and ends with the commissioner. I would like to hear your take on that.

[S/Sgt Gaétan Delisle]

If you have a look at our brief, you will see that we are pretty clear on that issue. Obviously, access to the process must absolutely go through an external channel. An independent body must have the power to make a decision because, as Mr. Duggan pointed out, the commissioner currently holds the decision-making authority on sanctions. He reviews the allegations and makes the final call.

I'll give you a typical example. When a recommendation regarding a member is made, all the commissioner has to do is reject it as he sees fit. We believe it's obvious that this cannot continue.

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

You spoke about the independence of committees and tribunals. Bill C-42 allows the commissioner to overrule any decision. I know you suggested independent committees, but are there other solutions that members need in place?

[S/Sgt Gaétan Delisle]

A royal inquiry commission said it in 1974. I contributed, in fact. I was pleased to learn that, five years ago, the movement served by the Toronto representative was asked what it thought about the content of Bill C-42. The suggestion isn't ours. Bill C-43 sought to make it independent. I don't think I need to prove anything in that regard, since the government itself sponsored the bill. So from that perspective, it's obvious.

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

Thank you.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

We'll go to our next questioner.

That will be Ms. Bergen and Mr. Hawn, please.

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

He'll go first.

[The Chair, Conservative, Kevin Sorenson]

Go ahead, Mr. Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Mr. Chair.

I'd like to start with Mr. Mukherjee and give an opportunity to chime in with a response to what Mr. Hiebert's question started. It was with regard to the power of the commissioner.

[Dr. Alok Mukherjee]

Thank you for that.

Actually, I'm in agreement with what Mr. Stamatakis said. There has to be a balance and a distinction made between criminal investigations and other types of conduct with investigations.

My concern is that quite often these conduct matters, which to my mind are labour relations matters, are dealt with as if they are criminal matters, and the due process has been confused. There is a balance that is needed, as Tom said. I don't think there is an inability to carry out a proper conduct investigation within the scheme that is proposed.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you.

Sticking with the powers of the commissioner, there has been a lot of talk about the commissioner having too much power, and so on. We've talked generally in that vein. What specifically would you suggest, Mr. Girard or Staff Sargeant Delisle, to restrict the power of the commissioner?

[S/Sgt Gaétan Delisle]

You asked us what we thought about Bill C-42. Bill C-42 enhances the power the commissioner already has in the law.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

How would you restrict that? How would you take away the powers of the commissioner?

[S/Sgt Gaétan Delisle]

Are you only working on Bill C-42 or do you want to impose some other stuff? Can you do that as a committee? I don't think so.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

I'm asking you, if you were writing Bill C-42 or if you were restricting the powers of the commissioner, what would you restrict his powers to? How would you restrict them?

[S/Sgt Gaétan Delisle]

That's exactly what we've been talking about.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Well, give me something specific, not just that he has too much power. What would you specifically do to restrict his power?