THE PEOPLES' WATCHMAN

BY

MR. PAUL E. KENNEDY

CHAIR
COMMISSION FOR PUBLIC COMPLAINTS
AGAINST THE RCMP

TUESDAY, APRIL 4, 2006

Thank you for the opportunity to talk to you today about the work of the Commission for Public Complaints Against the RCMP.

During my presentation, I would like to:

1. outline the genesis of the Commission's mandate,
2. briefly describe our core work,
3. touch upon some of our current operational challenges and the steps that we are taking to address them,
4. list concerns that people have with the adequacy of the current model of civilian oversight of RCMP activities, and
5. conclude by pointing to the way forward.

1. The Genesis of the Commission's Mandate

The events that shaped and influenced the creation of the Commission's legislative mandate are:

1. the Marin Commission recommendations of 1976. That Commission was established in 1974 to examine the process for dealing with discipline, grievances and complaints from the public,
2. the McDonald Commission recommendations of 1981. It was established in 1977 to inquire about the activities of the RCMP with a particular emphasis on the Security Service,
3. steps taken by provincial governments in the 1970s and 1980s to enable police commissions or similar bodies to deal with complaints by the public concerning the conduct of RCMP members carrying out provincial and municipal policing responsibilities,
4. a decision by the Supreme Court of Canada in 1981, A.G. of Alberta vs. Putnam, which said that to the extent that provincial legislation sought to review the conduct of the RCMP, such legislation was unconstitutional, and
5. a series of federal bills introduced between 1978 and 1985, one of which Bill C-65 amended the RCMP Act and established the RCMP Public Complaints Commission.

I think it is fair to say that one of the essential attributes of a democracy is the rule of law. There is generally a recognition that the police play a vital role in the proper functioning of our society by helping to foster an environment wherein all individuals may enjoy not only personal physical safety but also those freedoms that have found expression in the Charter of Rights and Freedoms.

It is universally recognized that to discharge their duties, the police must be given extensive powers such as surveillance, search, seizure and arrest, and to use such force as is necessary including deadly force in the administration or enforcement of the law. These are activities which if carried out by a private citizen would be unlawful.

As noted in a March 2005 White Paper by the British Columbia Police Complaints Commissioner,

"the extensive power of police and the realities in which they exercise their power also means that everyone - the public and the police - must appreciate the critical importance of safeguarding proper standards of police conduct by civilian oversight of any complaints process in which police investigate police.

Police accountability is, in reality, a pre-condition to the grant of police powers . police credibility and legitimacy once undermined, are extremely difficult to restore."

2. Our Core Work

The Commission's legislation of 1988, which was largely founded on the Marin Commission recommendations of 1976, sought to provide a framework for effective civilian oversight. The vision of Judge Marin in 1976 can be summed up by his description of what he called the "Peoples' Watchman." This was to be a person who can "focus the light of publicity on his concern as to the injustices and needed change . he can bring the lamp of scrutiny to otherwise dark places, even over the resistance of those who would draw the blinds. If his scrutiny and observations are well-founded, corrective measures can be taken in due democratic process, if not, no harm can be done in looking at that which is good." It has a number of features which may have been appropriate for that time but which, I submit, need to be re examined in light of current police practices, techniques and public expectations.

It would be fair to describe the current federal oversight model as being complaints driven. The Commission receives approximately 825 complaints annually. The RCMP would also receive, directly, a similar amount.

Complaints are restricted to the conduct of regular and civilian members of the RCMP in the performance of any duty or function under the RCMP Act or the Witness Protection Program Act.

All complaints in the first instance are referred to the RCMP for investigation and resolution. The resolution may be informal employing Alternative Dispute Resolution techniques. More serious allegations are dealt with by a formal letter of disposition.

Individuals who are not satisfied with the RCMP's disposition of their complaint may ask the Commission to conduct a review. We receive approximately 150 such requests annually.

The subject matter of these complaints is exceptionally varied. It runs from minor complaints of perceived rudeness, failure to conduct an adequate investigation to allegations of unlawful arrest, failure to respect a Charter requirement (informing an individual of his/her right to counsel), excessive use of force, for example pepper spray, Tasers, rubber bullets, choke holds, etc. whereas the most serious allegations are those which involve incidents of death flowing from an individual's contact with the RCMP.

Following a review, the legislation provides that the Chair or Vice-Chair of the Commission may make such findings of fact "as he/she sees fit" and may make such recommendations as "he/she sees fit." These findings are sent to the complainant, the Commissioner of the RCMP and the Minister of Public Safety. These recommendations are not binding upon either the Minister or the Commissioner of the RCMP. I should point out in fairness that in a very high percentage of cases, the Commissioner accepts our recommendations and takes actions in response thereto. Such actions have included issuance of apologies, supplementary training for members as well as the review and amendment of RCMP general practices, procedures and policies.

In addition, as Chair, I have the ability to initiate a public interest investigation or a public interest hearing where I conclude that there are reasonable grounds to do so.

Two examples of the exercise of this power are:

1. the APEC hearing in British Columbia presided over by Justice Ted Hughes. That hearing dealt with the RCMP's response to large protests that took place at the University of British Columbia campus during the Asia Pacific Economic Cooperation Conference in Vancouver in 1997; and
2. the ongoing investigation concerning allegations that the RCMP did not properly investigate alleged criminal conduct by an RCMP officer, Kingsclear custodial staff and Kingsclear residents; and that the RCMP engaged in activities designed to cover up this alleged criminal conduct.

3. Current Operational Challenges

As I noted in my opening remarks, the Commission, like any other organization, has challenges. One of those challenges is to effectively address mandatory, non-discretionary work - such as reviewing complaints that have been appealed to us, while seeking to position ourselves to add more value to the conduct of policing activities generally in Canada, e.g. the work that was done by the Commission in respect of high-speed police pursuits.

The Commission, throughout its history, has experienced a series of ever increasing backlogs. Following my appointment on October 24, 2005, I found myself confronted with an inventory of some 360 files, some of which had been appealed to the Commission six years previously. I firmly believe that justice delayed - is - justice denied. Furthermore, the nature, scope and relevance of the recommendations that may be made are significantly curtailed by such prolonged delays.

During the subsequent five months, in addition to dealing with the monthly inflow of new cases, we have reduced the inventory to less than 250 files. Our goal by the end of the next fiscal year is to achieve as a service standard a turnaround time of 120 days from receipt of request for review to issuance of a report with our findings and recommendations.

You have all heard the expression that you get what you pay for. That applies equally to the type of car you purchase as to the type of civilian review that you want. The nature and scope of the reviews that the Commission can undertake is dictated by the resources available. The adequacy of such resources is relative to the size of the organization over which it conducts review.

Upon its creation, the Commission had a budget of some $3.6 million and a staff of some 33 employees to provide oversight of the RCMP, which had a budget of some $1.4 billion. The RCMP as you know, in addition to its federal policing role, is the provincial police force in eight provinces, three territories, and over 200 municipalities. A police force that has a presence from sea to sea to sea.

In 2006, the RCMP has grown to some 22,600 employees of which approximately 19,000 are regular or civilian members who are subject to the Commission complaints process. Its budget has also grown from $1.4 billion to approximately $3 billion. The Commission by contrast, has grown from $3.6 million to $5.2 million and from 33 to 44 employees.

4. Third Party Concerns with Adequacy of the Current Oversight Model

As you can well imagine, there are individuals and groups who have concerns about the adequacy of civilian oversight of policing generally and the Commission in particular. Those concerns fall into the following areas - a few of which I will comment upon:

1. When a public complaint is filed, should the police investigate the police?
2. What police activities should be subject to public complaints? i.e. should it be restricted to individual incidents of alleged police misconduct or can it address general policies, procedures and attitudes?
3. Are review powers adequate? Should officers who are investigated be compelled to give an explanation of their actions? Should the review body have the power to issue summons to witnesses? To subpoena the production of documents?
4. Should the review body have the power to conduct ongoing audits?
5. What information should be made available to third party complainants or to the general public? For example, are there cases where the public interest may outweigh individual privacy interests?
6. How do the various civilian oversight mechanisms address the fact of integrated policing models, Joint Task Forces that have representatives at the federal, provincial and municipal level? Those models which may also have representation from organizations such as the Canadian Border Service Agency (CBSA)?
7. How does one address the special needs of national security criminal investigations?
8. Should review agency recommendations be binding?

There are general concerns as to whether the police can investigate themselves. We see allegations of conflict of interest, institutional or cultural bias, cover-up, etc.

In the most sensitive of cases, the police recognize the importance of public perception and may invite a separate police force to conduct the investigation. This has muted, but not silenced, the critics - some of whom prefer the Ontario Special Investigative Unit (SIU) model whereby a specialized team of investigators investigate all instances of death and serious injury involving the police and recommends the laying of criminal charges to a special team of prosecutors. Other jurisdictions have models whereby the equivalent of the Commission can either direct that another police force do the investigation or appoint one of its staff to monitor the police investigation.

In my opinion, the lack of a power to audit police practices is a fundamental weakness in our current legislative regime. The value of civilian oversight is not merely to address individual incidents of misbehaviour but to fulfill a preventive function. As a general rule, those who are sworn to uphold the law conscientiously strive to do so. On occasion, it is poorly conceived or articulated policies, procedures or training that has created an environment that ultimately results in behaviour that is the subject of a complaint. Furthermore, the feedback on performance that police traditionally received from the court, following a detailed examination of a police investigation at trial, is not as widely available as one may have thought.

As an example, the RCMP following the tragic events of September 11, 2001 received fresh resources that have resulted in some 300 members being tasked to address national security criminal activity. How many criminal charges have been laid? - One - That is not to say that valuable investigative work has not been undertaken; rather, it indicates that not all police investigations lend themselves to the simple process to investigate, charge and prosecute. This same scenario plays out in respect of other complex criminal investigations such as trans-national organized crime, money laundering and computer crimes. Many individuals may fall subject to police surveillance, either overt or covert, but few will actually face criminal charges wherein the courts will assess the legality or propriety of police actions.

The last challenge that I will speak to is the challenge posed by integrated policing models. These are useful and practical ways to enhance policing in Canada. We all benefit if police and other law enforcement agencies share information and resources, both financial and human. Criminal organizations cooperate and it is only reasonable that police forces should cooperate. This model of policing does pose challenges to effective civilian oversight. Currently, the Commission's mandate is restricted to the activities of RCMP members. Likewise, provincial agencies are restricted to looking at non-federal police agencies within their province. Recognizing the valid constitutional jurisdictional issues that distinguish the areas of provincial and federal responsibility, we would benefit from some type of legislative regime that allowed for joint reviews and/or the sharing of information between federal and provincial civilian review agencies.

In light of these observations, it is time to ask ourselves whether the status quo is acceptable and, if not, what elements should be present in a future model of civilian oversight. I believe that, in the case of the Commission, public expectations as to the nature and scope of civilian oversight of the RCMP has evolved significantly since 1988. The current mandate was largely fashioned in response to the 1976 Marin report and is sorely out of date. By way of illustration, the first Chair of the Commission in his 1988-89 Annual Report identified legislative ambiguities and in his second Annual Report in 1989-90, listed a myriad of legislative shortcomings and called for reform. He pointed to action taken by the provinces to enhance their legislation and the gap that existed between the federal and provincial regimes at that time. That was sixteen years ago.

A number of those provinces have amended their legislation further since that time, and the gap has grown ever wider.

As the RCMP is present in all 10 provinces and three territories and with a presence at all three levels, federal, provincial and municipal, there ought to be a national standard of civilian oversight such that Canadians wherever they may be in Canada, regardless of the police force with which they come into contact, can be assured that there is a uniform level of civilian oversight accountability.

When we see new civilian oversight legislation enacted in

it is fair to conclude that such a national standard currently does not exist.

5. The Way Forward

An effective national civilian oversight regime needs:

1. a resource base that would signal to the reasonable person that there is a credible capacity to conduct civilian oversight. An organization that has grown by $1.6 million over 18 years providing oversight of an institution that has grown by $1.5 billion begs the issue of whether a credible capacity exists.
2. a modern legislative framework that embodies the elements currently found in provincial regimes and which are present in other federal review bodies such as the Security Intelligence Review Committee (SIRC), and offices of the Access and Privacy Commissioners.

Key elements of that legislative regime would include:

1. an ability to conduct audits of RCMP activities generally, i.e. it would not have to await the launching of a complaint;
2. an ability to examine RCMP practices, procedures and policies generally;
3. a positive obligation on officers to provide an explanation of their actions as they relate to a particular incident;
4. the power to summon witnesses and take evidence under oath and the power to compel the production of documents.
5. clarity that it is the Chair of the Commission who decides what information is relevant;
6. a legislative authority for the Commission to access all information but for Cabinet confidences;
7. an ability for the Commission to disclose reports beyond the complainant, Minister and Commissioner of the RCMP when the Chair of the Commission finds that it is in the public interest to do so, e.g. to the public, to other review agencies at the federal or provincial level;
8. a legislative provision mandating a review of the legislation every five years in recognition of the fact that we must have an accountability process that is representative of and responsive to society's evolving expectations.

If we take these steps, we will be able to close the gap between federal and provincial oversight regimes and rebalance oversight capacities with the necessary expansion of police powers that has taken place since 1988. If we do not act, we will find ourselves trying to bridge a chasm not merely a gap. Things fall through cracks - what can fall through a chasm?