A Crisis in RCMP Accountability
Check Against Delivery
Speech Delivered by
Paul E. Kennedy
Chair, Commission for Public Complaints Against the RCMP
To National Press Club of Canada
Ottawa, Ontario
May 9, 2007
I have been fortunate that during my more than 33 years of public service, almost all of which was in the law enforcement and national security area, I have been exposed to the vital role that the RCMP plays both domestically and internationally.
During all those years, no matter the gravity of the public safety challenge that we were confronting, there was one constant – and that was the stellar reputation for professionalism and integrity garnered by the RCMP since its creation in 1873. There are few, if any, police forces that enjoy such a reputation.
It is, I would suggest, of such a nature that it contributes to the international reputation of Canada as a country whose citizens value and embody such characteristics as honesty, integrity, compassion and most importantly respect for the rule of law.
The RCMP as an institution is under intense scrutiny from a number of quarters today. Should we be concerned? Is this not just the robust self-correction of a public institution that takes place in a free and democratic society? Or has something gone awry?
What has taken place that makes some people feel that it is appropriate to say that the RCMP is "rotten to the core"? An onslaught of negative comments that according to a media report of an Ipsos-Reid poll on April 23, 2007 reveals that one third of Canadians reported having little to no confidence in RCMP management.
Are the current review mechanisms for dealing with specific concerns arising either from management of the RCMP or the conduct of their policing activities proving to be more destructive than constructive and if so, why? Are such processes flawed or inappropriate and, in turn, risk becoming the source of the very "crisis" in RCMP accountability that is the topic of this presentation?
"Crisis" and "emergency management" are sufficiently common events within the federal government that in 2003, the Canadian Centre for Management Development prepared a Guide for Managers in the Public Service of Canada.
The guide defines both terms :
- "an emergency" is an abnormal situation that requires prompt action, beyond normal procedures, in order to limit damage to persons, property or the environment;
- "a crisis" is a situation that somehow challenges the public's sense of appropriateness, tradition, values, safety, security or the integrity of the government.
As you can see a "crisis" does not necessarily represent a threat to human life or property. In fact, a crisis is largely based on perception of a problem, regardless of whether the problem is real or only apparent.
The Guide goes on to state that a situation degenerates into a crisis when it is designated as such by the media, Parliament, or by powerful or credible interest groups.
Police work by its very nature is high risk. It is the statutory duty of RCMP members to preserve the peace, prevent crime, apprehend criminals and to discharge this duty in a respectful and impartial manner whilst being incorruptible and maintaining the integrity of the law, law enforcement and the administration of justice. Young men and women on a daily basis risk physical injury and in some cases die so that you and I can enjoy a level of personal safety that is unmatched in the world.
The environment in which police discharge their responsibilities has also undergone significant change. The call for greater transparency and accountability saw the introduction of access and privacy legislation in the early 1980s. We have witnessed an evolution in the role played by the Auditor General from strictly financial audits to value-for-money audits. The current government in 2006 made "Accountability" one of its first five priorities. The recently enacted Federal Accountability Act provides new oversight mechanisms and strengthened whistle blower protection.
An Ipsos-Reid poll dealing with the trustworthiness of professions was released in January of 2007. Of the 30 professions listed, national politicians were tied for last with car sales people, journalists were ranked 21st, just ahead of lawyers, and police were tied for 6th position with teachers. Such a survey provides stark feedback as to the cynicism with which the general public would appear to hold members of government institutions and notable public institutions such as the media.
Some can carry on absent a well of public trust. Unfortunately, the police cannot – "to serve and protect" is not just a slogan. Rather, it encapsulates the essential contract between the citizen and the police in a democracy. The citizen must have full confidence that regardless of the risk to their person or reputation, officers individually and police services institutionally will respond to any call for help and will investigate all meritorious allegations of criminality regardless of the stature, wealth, power or influence of the criminal suspect.
In such an environment, it is not surprising that the policing function fell subject to calls for greater transparency and accountability. In 1976, Judge Marin called for the creation of an Ombudsman's office to look at the conduct of RCMP members as well as the internal disciplinary practices of the Force. In 1986, the government introduced legislation, an amended version of which was passed in 1988, leading to the creation of the current Commission for Public Complaints Against the RCMP. The Commission's mandate, which has remained unchanged since that date, is less robust than what had been recommended by Judge Marin some 12 years earlier. What is of some note is that the legislation enacted by Parliament in 1988 was significantly weaker in terms of its review powers than those given to the Privacy and Access Commissioner in the early 1980s or to the Security Intelligence Review Committee in 1984 following the creation of a civilian intelligence service. It may be that Parliamentarians in 1988 deferred to the traditional independence of the police or possibly felt that the courts could provide a sufficient supervisory function through examination of individual criminal matters brought before it.
The inadequacies of the legislative model for review of the RCMP quickly became apparent. The then Chair of the Commission in his 1989-1990 Annual Report to Parliament called for some 33 legislative amendments. Similar calls have echoed throughout the subsequent years, including my Annual Report of 2005-2006.
It has been said that the "only constant is change" and one area that has experienced unprecedented change over the last 20 years is public safety. Globalization, mass migration, technological advancements and the existence of failed or failing states have all contributed to a witch's brew of sophisticated crime in the form of transnational organized crime, global terrorism, and the ever-ubiquitous Internet with its hackers, fraud artists and hate distributors.
Governments have responded to these challenges by increasing police budgets and enacting new legislation. Police services have altered their investigative practices and since the year 2000 we have witnessed the growth of ad hoc and permanent integrated enforcement teams both domestically and internationally.
The RCMP within Canada plays a key role in this new mode of policing. The RCMP is unique in that it is one of the very few police services in the world that is present at all three levels of government. As the national police force, it is present in all 10 provinces and 3 territories, it is the provincial police force in 8 provinces and is the municipal police force in over 200 municipalities, some of which have a population base in excess of 400,000 persons.
Its sheer size, with some 26,000 members, and an annual budget of $4 billion gives it a presence and profile enjoyed by few police services. There is a downside, however, to an organization with such a national presence and myriad mandates. The RCMP has lead responsibility under the Security Offences Act for terrorist-related activity. This is an area of great public safety concern and unlike other criminal investigations it attracts ongoing expressions of concern about racial profiling and inappropriate stereotyping of minority communities. A small municipal police force, by contrast, is unlikely to engage in such criminal terrorism investigations. The RCMP, however, is required by law to engage in such investigations with all their challenges.
Likewise, because the RCMP has a national presence, an event, whether it takes place in Newfoundland, British Columbia or the Yukon, will garner national coverage. There is a tendency to string together a number of disparate events that occur throughout Canada, emerging from any one of the three different roles played by the RCMP, as evidence of a systemic problem within the Force. The RCMP has become a rolling stone that gathers moss. This conflation of disparate issues can contribute to the creation of a "crisis".
It is inevitable that such a police service will be the subject of public complaints as to how it discharges its duties. Since 1988 there has been on average 2,000 annual complaints. They range in nature from complaints of rudeness, police shootings that result in serious injury or death to appropriate response to large public protests such as those that took place at APEC in Vancouver and the Summit of the Americas in Quebec City. The vast majority of these complaints can be adequately addressed under the current legislation. However, it is clear that individual cases can highlight glaring defects in the review mechanism which undermine its credibility, foster tension between the RCMP and the Commission, and have helped spawn a growth in the 'Public Inquiry' business.
Some of the accountability difficulties have, in my opinion, been overly simplified as personality conflicts between members of the Commission and leadership of the RCMP. Such conflicts, if they exist, mask what is essentially a flawed statutory mandate; one that has been overtaken by time and evolving police practices.
For example, how can the Commission demand that the RCMP provide classified information when it lacks a legislative mandate such as that found in the CSIS Act which says SIRC has access to all information but for Cabinet confidences? How much weaker is the Commission's position when there are statutory prohibitions such as those found in Part VI of the Criminal Code dealing with wire taps that prohibit the disclosure of information?
Review bodies such as our Commission are creatures of statute. We are only as strong as Parliament makes us. We cannot pretend to have powers or the ability to impose obligations that have no basis in legislation.
The inadequacies of the review mechanism for the RCMP were subject to specific comment by the Office of the Auditor General in respect of its national security mandate wherein she found that it lacked the review powers currently enjoyed by the Security Intelligence Review Committee (SIRC) and the Inspector General in respect of the Canadian Security Intelligence Service (CSIS). She called for greater uniformity of powers amongst review bodies and stated as a proposition that as a principle, the level of external review and disclosure of an agency exercising intrusive powers be made proportionate to the strength of these powers. The unspoken reality is that the RCMP has even more intrusive powers than CSIS.
Justice O'Connor in his report of December 11, 2006 provided detailed policy recommendations that would address the weaknesses of the existing review mechanism. Those policy recommendations largely mirror model draft legislation developed by the Commission and posted on its Web site on August 17, 2006.
Lack of a modern review mechanism, one which takes note of new responses to the threat environment through preventative policing and integrated enforcement models, I believe, lead the government of the day to have recourse to a seemingly never-ending series of public or private inquiries including those conducted by Mr. Rae, Justice O'Connor, Justice Major, Justice Icaccobuci, Mr. Brown, as well as those presently being carried out by a number of Parliamentary committees.
Absent modernization of the current review process we can look forward to other such ad hoc responses.
These kinds of challenges to accountability of police are not unique to the federal government. Provincial governments have faced them as well. You will note that across Canada, Quebec passed new legislation in 2002 to improve its police accountability regime. Alberta has recently introduced Bill 16 to create a Special Investigative Unit model similar to Ontario's to investigate police shootings. Saskatchewan, in 2006, updated its legislation. British Columbia has just completed a review by Mr. Justice Woods wherein he has recommended significant changes to their legislation. Ontario introduced Bill 103 to expand their complaints review model. Many of the provincial regimes were of more recent vintage than the federal model; nevertheless, they found it necessary to refresh those models to better address today's public expectations of transparency and accountability.
The decision to take action on the federal front in respect of the RCMP is a question for the government and Parliament. To help foster a constructive debate in that area, we, at the Commission, have drafted a model legislation for consideration by policy experts, media and parliamentarians. Recourse to legislation containing elements of that model would turn a crisis or potential crisis into a constructive fact-based investigation and analysis of perceived problems, one which respects due process for all participants, is impartial in its approach and which would offer constructive and remedial recommendations as to possible next steps.
In addition to dealing with complaints, it would on a systematic basis audit policies, training, and other matters in a proactive fashion to identify problems before they generated emergencies and possibly crisis.
The legislation would be a vehicle to which the Minister could turn and request a special inquiry into either the conduct of an RCMP member or the adequacy or appropriateness of various policies, procedures, guidelines, services or training programs. The review body would have the ability to issue subpoenas, take testimony under oath and have access to all documents but for Cabinet confidences. It would also make it a criminal offence to provide false testimony or to destroy or alter documents or to harass witnesses or obstruct the activities of the review. It would be mandated to share information with other review bodies and to conduct joint investigations as appropriate.
Can we, as a country, afford to let key institutions such as the RCMP continue to lurch from crisis to crisis? Do we not owe members of the RCMP and Canadians at large the benefit of our ideas as to the most constructive way forward?
Is this not an opportunity for the media, Parliament and powerful or credible interest groups to take ownership of the crisis and collectively offer constructive ideas to restore the essential bond of trust between the RCMP and the Canadian public. We all have a choice to be either part of the problem or part of the solution. For my part, I am offering draft model legislation that could be used to conduct effective and credible civilian review of the RCMP.
What can others do to turn the current situation from a crisis to a challenge and ultimately a solution?