Speech given by Mr. Paul E. Kennedy at the
Forum on Justice Policy, Wosk Centre (November 30, 2009)

I would like to thank the organizers of today's conference for the opportunity to address you today. The general topic of accountability of the police in respect of their conduct in the performance of their duties has gained increasing prominence not only in B.C. but across the country. Although the RCMP has recently attracted some notoriety in this regard, the reality is that concerns about the ability of police to impartially investigate their fellow officers has surfaced in every province and territory of Canada.

In light of that reality, although I may refer to some specific cases dealing with the RCMP, I would invite you to consider the issues within the wider context of police accountability to the public and the need to restore and maintain public confidence in the various police services.

I have found, in my four plus years as Chairman of the Commission for Public Complaints Against the RCMP a significant polarization amongst Canadians concerning the appropriateness of the police investigating a fellow officer who has been involved in a serious incident that could attract criminal liability. Despite the strength of the opinions held, there is generally a lack of information supporting these strongly held views.

I personally encountered this polarity during my review of the in-custody deaths of Ian Bush and Kevin St. Arnaud, both of whom resided in B.C. I made publically available a detailed factual analysis not only of the conduct of the officers engaged in the use of force but also of the follow-up investigations by the RCMP's Major Crime Unit.

Although I did find fault with elements of the investigations and recommended changes, I found in particular with reference to the death of young Ian Bush that the RCMP Major Crime Unit conducted a highly professional investigation of Mr. Bush's death and completed the investigation in a timely manner. I also found that they had conducted the investigation free from any conflict of interest, bias or partiality.

At a press conference on November 29, 2007 during which I made my report publically available and took questions from the media, it was put to me that my report was inadequate because I relied upon RCMP collected information. I pointed out that my staff and I were assisted by a senior RCMP officer at the Superintendant level, who in addition to providing access to all information in possession of the RCMP relative to the death, promptly responded to all our requests for additional information.

This was a senior officer who had no personal contact with either the shooting incident or the follow-up investigation. The CPC, solely, decided what information it wanted and provided an independent analysis of those facts. Yet because there was an element of reliance upon the police, some members of the media took the position that the review was somehow flawed.

As I pointed out at that time, it was inherent in the position advanced by these media representatives that there was not an honest unbiased RCMP police officer to be found amongst the seven thousand members in B.C., upon whom I could rely to provide information to assist in my inquiry. In a subsequent interview with CTV some two years later, I was asked with reference to the Ian Bush and Kevin St. Arnaud files why I accepted the evidence of RCMP forensic experts and was asked to justify why I had not sent some of the evidence to an FBI laboratory for independent analysis.

I have referenced those two incidents simply to show the depth of the problem and the difficulty of overcoming the perception of bias that surrounds such investigations. When that perception is shared by members of the media, the problem truly becomes insurmountable in light of the reach of the media and its ability to shape public opinion.

Faced with this reality, on November 29, 2007, I launched a Chair-initiated complaint that had as its goal the detailed examination of RCMP investigations of its members over a five-year period who were involved in shootings that resulted in death or serious injury as well as other serious incidents such as allegations of sexual assault.

In addition to my factual inquiry, I also wanted to examine public perceptions and to canvass within Canada and amongst similar democratic countries responses to the issue of the police investigating the police. My goal was to have a factual document that would permit a more constructive dialogue amongst all stakeholders as to the nature of the problem and possible solutions.

I believe that the report, which was released in August of 2009 and which can be found on our website, complaintscommission.ca, has accomplished this goal. The report is some 108 pages long and I will leave you to read it at your leisure.

The bottom line is that the perception of bias is so pervasive that it constitutes an insurmountable barrier for the police to overcome. Further, failure to take steps to address the issue will result in the continued erosion of public confidence in the police.

I was pleased to note that individual members of the police community responded positively to the report. Shortly following its release, the B.C. Association of Chiefs of Police indicated their support for the establishment of an independent body to conduct investigations of police officers who are involved in shootings resulting in death or serious injury.

Across Canada we see that many jurisdictions either have or are in the process of establishing such independent investigative bodies. Ontario since 1990 has had the S.I.U., Alberta for some two years has had the A.S.I.R.T., Manitoba following recommendations made by Justice Sahaney in the Tayman Inquiry is establishing an A.S.I.R.T.-like model. Last week the Attorney General of Nova Scotia indicated that his province would establish something akin to the A.S.I.R.T. model and has invited the other Atlantic provinces to join in the initiative.

The RCMP has indicated its support as well as its willingness to participate in these new organizations. I believe that a significant step forward has taken place. I view the creation of these new agencies as an essential addition to the regimes that currently exist to address issues such as discipline and public complaints concerning the conduct of officers. The new investigative organizations fall within provincial constitutional competency, as they are essentially a specialized police force lead by a civilian, in the person of a former Crown prosecutor.

This civilian is designated as a provincial police chief whose mandate is to investigate potential criminal acts by serving police officers. Such a criminal investigative unit leaves intact the federal government's constitutional jurisdiction in respect of the management of the affairs of the RCMP including discipline, public complaints, operational policy, training, etc.

Where such new investigative bodies are established, however, we must have the foresight to ensure that they can interface with existing organizations that are responsible for discipline or other aspects of policing behaviour. Most importantly they must be able to share a copy of their investigative files. A finding following a criminal investigation that there is insufficient, legally admissible, evidence to justify the laying of a criminal charge does not mean that the conduct is not blameworthy.

It may in fact attract disciplinary sanctions up to and including dismissal from a police service or may indicate a need for the police officer to receive additional training, guidance or supervision. Furthermore, such a specialized investigative body is neither mandated nor equipped to carry out important work such as the in-depth reviews that were conducted by my Commission in relation to the RCMP's use of the Taser or in this case the propriety of the police investigating the police.

I look forward to your questions.

Thank you for your kind attention.