Notes for Presentation

by Paul E. Kennedy
Chair of the Commission for Public Complaints Against the RCMP

Before the O'connor Commission

Thursday, November 17, 2005

Note: The full text of the transcript of Mr. Kennedy's testimony [PDF Format, 683Kb]

Introductory Remarks

I would like to thank the Commission for the opportunity to make a submission on this important topic.

The CPC filed a written submission on February 5, 2005 and a supplementary submission on October 18, 2005. I have read those submissions plus a number that have been filed by other interested parties and would like to offer the Commission an additional model for consideration.

Parameters of the New Model

My goal would be to have a civilian review model that is viewed as independent and effective. In the discharge of its duties, the Review Agency should be objective, fair, constructive and knowledgeable.

Stakeholders who have an interest in our work include:

• The Canadian public (including non-governmental organizations)
• Complainants
• The RCMP
• Other Review bodies
• The Minister
• Parliament
• International Partners

The intent of a civilian review body would be to address not only those points of friction that arise in individual cases where officers come in contact with citizens, but also to add value in terms of larger systemic issues (e.g. police pursuits, use of Tasers, and concerns about racial profiling).

The Evolving Context

This requires an examination of relevant law, policies, guidelines, practices and ministerial directives that inform the conduct of officers in the discharge of their duties.

Policing has changed significantly over the years – particularly during the past five to ten years. This change has been driven by a variety of factors – including:

• Globalization, i.e. the rapid worldwide movement of people and goods;
• Transnational organized crime;
• Widespread availability of sophisticated communications systems;
• Publicly available encryption;
• Internet proliferation;
• Modified criminal behaviour (old crimes committed in new ways);
• Partnerships amongst disparate groups, especially in organized crime;
• The emergence of new threats, i.e. terrorism, which although present in Canada before, e.g. the Fenians, Air India, has taken on more sinister forms.

The modern policing reality is that some challenges cannot be addressed by individual police forces acting alone. There is an obvious need to combine resources, both human and financial, and to maximize and share unique skill sets.

To address these challenges, police forces have integrated their operations and have adopted intelligence-led policing models that engage multiple partners at the municipal, provincial, federal and international level. This is the new norm.

This inter-agency co-operation finds expression at all levels of the public safety framework, e.g.:

• Mutual Legal Assistance Treaties
• Extradition
• Reciprocal enforcement of forfeiture orders

Some of the institutional responses, such as integrated multi-agency teams, cooperation at the local and international levels, and shared skill sets, are present in the national security area subject to some distinguishing characteristics.

Structure of the National Security Community

The National Security Community can be divided into collectors and consumers:

Collectors
CSE with respect to foreign intelligence
CSIS concerning threats to the security of Canada
RCMP who has primary responsibility for criminal investigations, relating to national security offences

Principal consumers of intelligence product include such agencies as:
CBSA
Transport Canada and a host of other government departments and agencies.

Review bodies are in place for the three major federal collectors

• CSE has a Commissioner
• CSIS is subject to review by SIRC
• RCMP is subject to a complaints process administered by CPC

Comparative Mandates and Legislative Powers

The review mandates and legislative powers of each review agency are different and were the subject of comment by the Office of the Auditor General.

"Security and intelligence agencies' compliance with the law and ministerial direction is subject to widely varying levels of independent review – in some cases, to no review at all. Review bodies also provide varying levels of details in their reports.

Independent review is important because of the intrusive powers of agencies and departments involved in intelligence gathering and law enforcement. Accordingly, we would have expected that intrusive powers would be subjected to a level of review proportionate to the level of intrusion.

Our audit found a wide range of independent reviews of, and reporting to Parliament, on security and intelligence agencies. While mandates may differ from one organization to the next, it is our opinion that there should be more consistency in the extent of independent review applied to any environment where intrusive investigative measures are used. The Commission for Public Complaints Against the RCMP, in comparison to the Security Intelligence Review Committee, does not undertake reviews aimed at systematically determining compliance with the law, nor does it [sic] mandate provide for unrestricted access to all information."

I agree with the observations of the Auditor General that the CPC lacks some of the tools available to the other review bodies.

Each of CSE, CSIS and the RCMP play a distinct role in their collection activities. I believe that they fulfill different functions and for that reason, their review bodies serve different purposes.

CSE's primary task is the collection of foreign intelligence.

CSIS, among other roles, collects information and intelligence on threats to the security of Canada, as defined in section 2 of the CSIS Act. Such threats do not have to be unlawful activities, e.g. section 2(b) "activities detrimental to the interest of Canada." Likewise, under section 16 of the CSIS Act, it can collect foreign intelligence in Canada pursuant to the request of the Minister of Foreign Affairs or the Minister of National Defence.

CSIS collects only to the extent that it is "strictly necessary" and it collects information or intelligence, not evidence.

Activities carried out by both CSE and CSIS are expressions of the Royal Prerogative concerning the defense of Canada and the conduct of its international affairs.

Accordingly, there is considerable Ministerial involvement in their activities:

• CSE operates under a ministerial warrant regime
• CSIS requires ministerial approval of judicial warrant application and is subject to extensive ministerial directive, e.g. ministerial approval is required to launch a section 2(d) CSIS Act investigation.

This is significantly different from the role of the RCMP:

Police have thousands of judicial decisions that bear on their conduct. By contrast, I can think of one case only that deals with investigative powers employed by CSIS, i.e. the Atwal case at the Federal Court of Appeal.

Summary

• Although the mandates of all three touch on the edges, the vast bulk of their mandates stand alone.
• Even though there is some information that flows from one collector to the other, there is a risk of exaggerating the actual overlap or interplay between these agencies.

I will address this interplay in my proposed model.

CPC Mandate and Mechanisms to Deal with Complaints

There are, generally speaking, mechanisms currently in place to address individual complaints of wrongdoing, and to identify larger systemic problems.

I will focus on the CPC, as I am sure the representative for SIRC and the CSE Commissioner can address their areas of responsibility.

The CPC's legislative mandate was enacted in 1988. Its characteristics are described more fully in on pages 25 and 26 of the CPC's first submission, dated February 5, 2005.

Weaknesses in the Current Model

The weaknesses in the current review model that have occasioned challenges are:

• Lack of clarity as to what information the CPC may access to fulfill its mandate (listed at pages 28-30 of the February 5, 2005 submission).
• Who decides what is relevant? The Commissioner or the Chair of the CPC?

A complaint-driven process is reactive. The Chair can trigger the process independently. In doing so, I risk creating a perception of bias against the RCMP. The process is also largely paper-based, while resolving some issues requires an assessment of the credibility of individuals providing information.

Key tools such as taking testimony under oath and compelling production of documents are not available to the CPC when conducting reviews or investigating complaints unless I convene a public interest hearing. Recourse to that power, in the past, has resulted in protracted and expensive hearings. The cost incurred was not always proportionate to the issues involved.

There is no specific authority to complain about policies, practices or guidelines followed by the RCMP, although these issues may be considered in the context of the complaint, e.g. in the case of police pursuits.

Because it is a complaint-driven process, certain activities do not surface. This lack of profile may be occasioned by:

• The nature of the investigation.
• The fact that information essential to a successful prosecution may be subject to caveats or otherwise unavailable to police, thus preventing the laying of a criminal charge. In both of these instances, individuals would not necessarily know that they were the subject of a police investigation.
• In addition, there may be a reluctance to complain by individuals for cultural or other reasons.

Proposed Improvements

What improvements could be made to address these weaknesses? I would offer the following for your consideration:

In dealing with complaints, the review agency:

• Should have access to all information in the possession of the RCMP relevant to the complaint other than cabinet confidences.
• Should determine what is relevant to a complaint.
• Should have the power to summon witnesses and to subpoena documents. This extends not only to serving RCMP officers and other employees of the RCMP, but also retired officers or employees and such other federal employees who may have information relevant to the investigation. For example, this would include CSE, CSIS and CBSA employees to the extent that their testimony was required to fully investigate the RCMP conduct.
• As a necessary corollary to unfettered access to information there has to be adequate safeguards for confidential information given to the Review Agency. This would entail:
  • An ability to hold in-camera or ex parte hearings where appropriate.
  • A role for an amicus curiae, where testimony has to be heard in the absence of the complainant.
  • Draft reports would be shared with the Commissioner to ensure that confidential information is not inadvertently disclosed. Information provided to the review agency, however, would be held subject to any existing privilege, i.e. access by the agency, would not constitute a waiver of privilege

Information or reports should be shared, as appropriatewith:

• The complainant
• The Commissioner
• The Minister
• Heads of Review Bodies for CSIS/CSE or other federal review bodies as appropriate
• The concerned Deputy Minister

Discussion of the Proposed Improvements

Some features of this information or report sharing are found in your Background Paper of May 2005 wherein an examination is made of various international models and in particular the creation of statutory gateways between various review agencies for the purpose of the exercise of their respective mandates.

This approach was further developed in your supplementary questions of October 17, 2005 in particular question 17 dealing with coordinating review among the three agencies.

I believe that statutory authority to share information between such review agencies would, in the appropriate case, allow them to address possible gaps and to deal with common issues. Where confidential information is involved, the report to the complainant will of necessity be worded differently than the report to the Commissioner or the Minister.

Likewise, reports provided to other review bodies or Deputy Ministers would be written so as to alert them to issues that require additional investigation and possible corrective action. For example, SIRC could investigate in detail actions or practices within CSIS and make recommendations as appropriate to that environment.

Testimony given under oath by an individual could not be used in another proceeding against that individual except for perjury proceedings.

In addition to investigating complaints, the Review Agency requires the power to generally review RCMP conduct, policies, procedures, guidelines, applicable law and ministerial directives. In this context, I prefer to use the term review in lieu of audit. I noted earlier that there are instances where individuals may be unaware of the fact that they are under police investigation or where their contact with the police is such that it does not result in criminal charges being laid. The likelihood of judicial review occurring in these cases is diminished. National security investigations would clearly fall into this category.

Neither the CPC nor the individual would necessarily know the nature or the scope of the problem or whether the behaviour in question is an isolated incident or an institutionalized practice.

There should be a power to review generally the performance by the RCMP of its duties and its functions. For example:

• Affidavits filed in support of judicial warrant, information exchange practices
• Review of operational activities
• Monitoring compliance with policy procedures, guidelines and ministerial directives

Powers essential at the general review process include:

• Access to files/notes
• Power to examine current and former members and to examine other government officials and the power to compel production of documents.

As to the Scope of Review, the mandate of the Commission is national security:

• National security embodies all of these concerns
• There is a general concern about interference with ongoing investigation against individuals or groups. Depending upon the type of case involved, some files would constitute the traditional post facto review. Others of course may touch upon current and active investigations. Good judgment would guide all parties as to the timing of any such review

As is currently the case, recommendations would not be binding.

The power to receive and share information and reports should be common to all federal review bodies. Such sharing would better position the relevant review body to initiate more detailed inquiries and to fashion recommendations best suited to its particular area of expertise.

Conclusions

The CPC, with these enhancements and appropriate safeguards, would be able to effectively review the national security activities of the RCMP.

The enhanced model would:

• Clarify access to relevant information.
• Enhance complainants' rights through the offices of an amicus curiae.
• Offer a cost-effective review model.
• Respect the different roles played by CSE, CSIS and the RCMP.
• Permit the development of recommendations tailored to the realities of each organization.
• Authorize the sharing of reports/information between review bodies such that each may follow up as appropriate with concerned Ministers/Deputy Ministers.
• Recognize the current jurisdictional realities regarding provincial and municipal police forces.
• Demonstrate to all Canadians that there is an independent and effective capacity to review RCMP activities and ensure not only that they are being carried out as per the rule of law but with propriety.