Protocol Regarding the CPC/RCMP Independent Observer Program

made in duplicate on the 12th day of March 2009
Between the Royal Canadian Mounted Police "E" Division ("RCMP "E" Division") and the Royal Canadian Mounted Police Public Complaints Commission ("CPC")

1. Background
2. Definitions
3. Purpose
4. Description of the Program
5. Objectives of the Program
6. General Roles and Responsibilities of the RCMP
7. Roles of the RCMP OISP Member
8. General Roles and Responsibilities of the CPC
9. Role of the Independent Observer
10. Operations – Sequence of Events
11. Governance
12. Duration
13. Amendment

Signing Authorities

Appendix A [PDF Format, 12Kb]

1. Background

In response to rising public interest and concern regarding the independence and impartiality of RCMP internal investigations where the actions of RCMP members have resulted in serious injury or death, and for other investigations that are high profile and sensitive in nature, the RCMP "E" Division and the CPC entered into the CPC/RCMP Independent Observer Pilot Project on March 21, 2007.

Following the one-year assessment of the Pilot Project it was recommended, and the RCMP and CPC hereby agree, that the Pilot Project be continued and a CPC/RCMP Independent Observer Program be put in place.

2. Definitions

In this Protocol:

• 2.1. "Act" means the Royal Canadian Mounted Police Act;
• 2.2. "Commission For Public Complaints Against the RCMP" or "CPC" means the Royal Canadian Mounted Police Public Complaints Commission;
• 2.3. "Impartiality" means an absence of prejudice or bias, actual or perceived, in the outcome of the investigation that will be guided solely by the evidence;
• 2.4. "Impartiality Questionnaire" means a document crafted by the CPC and the RCMP that is to be filled out by actual or potential members of the RCMP Investigation Team and attached hereto as Appendix A;
• 2.5. "Independent Observer" means the individual assigned by the CPC to carry out the role and functions of the CPC Independent Observer in accordance with the Program;
• 2.6. "MCM" means Major Case Management, which is a methodology for managing major incidents by providing accountability, clear goals and objectives, planning, utilization of resources and control over the speed, flow and direction of the investigation;
• 2.7. "Parties" means the RCMP "E" Division and the CPC;
• 2.8. "Program" means the CPC/RCMP Independent Observer Program;
• 2.9. "OISP" means the RCMP "E" Division Office of Investigative Standards and Practices;
• 2.10. "RCMP" means the Royal Canadian Mounted Police;
• 2.11. "Team Commander" means the individual who has oversight and is responsible for the MCM investigation, including choosing the primary investigator and the file coordinator.

3. Purpose

The purpose of this Protocol is to set out the roles and responsibilities of the CPC and the RCMP "E" Division with respect to the Program.

This Protocol is a statement of intent and does not create legally binding obligations on either party. It is intended to provide guidelines for the operation of the Program.

4. Description of the Program

• 4.1. The Program is an initiative undertaken by the CPC and the RCMP "E" Division with a view to having the CPC assess the independence and impartiality of RCMP investigations where the actions of RCMP members have resulted in serious injury or death, and for other investigations that are high profile and sensitive in nature.
• 4.2. The Program is intended to operate independent of whether the CPC or the RCMP is in receipt of a public complaint related to such investigations.
• 4.3. Where it is in the public interest that the independence and impartiality of the RCMP criminal investigation be scrutinized, the CPC/RCMP will agree to utilize the Program.
• 4.4. Factors used to determine whether or not it is in the public interest include:
  • 4.4.1. Whether the incident was related to an RCMP investigation where the actions of RCMP members have resulted in serious injury or death, or where the investigation was high profile and sensitive in nature; and
  • 4.4.2. Whether there is the potential for an allegation of such nature that may give rise to concerns that the public's confidence in the RCMP could be affected.

5. Objectives of the Program

• 5.1. The primary objective of the Program is for the CPC to provide timely external civilian observations in regards to the impartiality of RCMP investigations where the actions of RCMP members have resulted in serious injury or death, and for other investigations that are high profile and sensitive in nature.
• 5.2. The Program is also intended to enhance public confidence in RCMP internal investigations by having the CPC, an independent review body, make a determination with respect to the impartiality of the RCMP team conducting the investigation.

6. General Roles and Responsibilities of the RCMP

• 6.1. The RCMP major crimes investigation unit conducts the investigation in the first instance.
• 6.2. The RCMP alerts the CPC that an incident falling within the purview of the Program has occurred.
• 6.3. The RCMP, through the OISP, coordinates and facilitates the Independent Observer's review of the impartiality of the RCMP investigative team members.
• 6.4. The RCMP, through the OISP, provides access to all relevant material, including but not limited to access to the operational file and transcripts of witness interviews. It is understood that the Independent Observer would not have access to "holdback evidence" in an ongoing investigation, nor would the Independent Observer be present during any witness or suspect interviews.
• 6.5. The RCMP undertakes to disseminate this Protocol broadly within "E" Division, including to all "E" Division Team Commanders and investigators.
• 6.6. The RCMP and the CPC undertake to develop a joint media communication package that will provide background information regarding the Program. The package should include a backgrounder and a copy of the Protocol.

7. Roles of the RCMP OISP Member

• 7.1. The OISP member assigned to a case where the Program is engaged acts as liaison between the Independent Observer and the investigating team.
• 7.2. The OISP member contacts the Independent Observer and with the Independent Observer will endeavour to attend briefings provided by the MCM Team Commander. In the normal course, these briefings will be held within the first twenty-four hours, seventy-two hours and seven days, and then the update briefings held every thirty days thereafter.
• 7.3. The OISP member is the first RCMP member to hear concerns regarding impartiality raised by the Independent Observer.
• 7.4. The OISP member will relay all initial concerns raised by the Independent Observer to the Team Commander and other members as appropriate.
• 7.5. The OISP member will ensure that the Independent Observer has access to the information he or she requires to fulfill the Independent Observer's mandate in accordance with the Program.
• 7.6. The OISP member will undertake other liaison tasks that may be required to ensure that the Independent Observer's mandate is fulfilled in accordance with the Program.

8. General Roles and Responsibilities of the CPC

• 8.1. The CPC decides whether to engage the Program.
• 8.2. When the CPC decides to engage the Program it will issue a media release advising that the Program has been so engaged.
• 8.3. The CPC shall provide the Independent Observer and pay all expenses related to that role.
• 8.4. The CPC shall post the Independent Observer's Interim and Final Status Reports on its website.
• 8.5. The CPC shall appoint a designated media contact within the Surrey, BC office of the CPC.
• 8.6. The CPC shall ensure its premises remain compliant with the Government Security Policy.
• 8.7. The CPC and the RCMP undertake to develop a joint media communication package that will provide background information regarding the Program. The package should include a backgrounder and a copy of the Protocol.

9. Role of the Independent Observer

• 9.1. The Independent Observer, with the OISP member, attends at the commencement of a criminal investigation and receives case briefings from the Team Commander. In the normal course, these briefings will occur within the first twenty-four hours, seventy-two hours and seven days, and then the update briefings will occur every thirty days thereafter.
• 9.2. The Independent Observer will liaise with the OISP member and have the ability to make recommendations to the OISP member, as a representative of the RCMP, on issues related to the impartiality of the investigation.
• 9.3. Upon completion of the assessment, the Independent Observer reports to the Senior Director, Operations of the CPC the findings with respect to questions of impartiality.
• 9.4. Assessment of Impartiality
  • 9.4.1. The primary responsibility of the Independent Observer shall be to assess the impartiality of the RCMP investigative unit responding to a serious incident involving RCMP members.
  • 9.4.2. The Independent Observer is to observe, listen and assess the impartiality of the investigation.
  • 9.4.3. Factors that may be used to assess impartiality include:
    • 9.4.3.1. Whether the member of the investigative team has ever worked with or been stationed at the same detachment with any RCMP member who is the subject of the investigation;
    • 9.4.3.2. Whether the member of the investigative team has ever had a social relationship or social interaction with any RCMP member who is the subject of the investigation;
    • 9.4.3.3. Whether the member of the investigative team attended training at Depot (troopmate) during the same period with any RCMP member who is the subject of the investigation;
    • 9.4.3.4. Whether the member of the investigative team has ever been stationed or has worked at the detachment in which the investigation is taking place;
    • 9.4.3.5. Rank of the investigators in relation to those being investigated, for example in some instances it may be inappropriate to have a lower ranked member (i.e. a Constable) interview a higher ranked member (i.e. an Inspector); and
    • 9.4.3.6. Any other factor that could affect the perception of impartiality as it relates to the investigative member participating in the investigation, such as comments made by the members of the investigative team to one another, to the Independent Observer or to any other person.
• 9.5. Assessment of the RCMP Incident Response Line Management
  • 9.5.1. The Independent Observer shall assess the independence and impartiality in the management structure or reporting relationships.
• 9.6. Assessment of the RCMP level of response
  • 9.6.1. As an element of independence and impartiality, the Independent Observer shall assess whether the RCMP response is appropriate and proportionate to the gravity of the incident.
  • 9.6.2. Also as elements of independence and impartiality, the Independent Observer shall also assess whether the RCMP investigating officers possess the appropriate level of seniority, training and experience to deal with the investigation that has been assigned to them.
• 9.7. Timeliness of the RCMP response
  • 9.7.1. The Independent Observer shall assess the timeliness of response by the RCMP investigative team (a tardy response could be perceived as a sign of partiality towards members being investigated).
• 9.8. Conduct of the RCMP investigation team members
  • 9.8.1. The Independent Observer shall assess whether the conduct of members of the investigative team is consistent with the relevant aspects of section 37 of the Act, which requires members to adhere to a certain standard of behaviour and ethics, including impartiality, when performing any policing duties or functions.
• 9.9. Restrictions on the role of the Independent Observer
  • 9.9.1. The Independent Observer does not provide advice, direct or actively participate in any part of the RCMP investigative process.
  • 9.9.2. The Independent Observer does not assess the adequacy of the investigation undertaken by the RCMP investigative team.
  • 9.9.3. The Independent Observer does not attend the investigative scene. In some exceptional circumstances and with the express permission of the RCMP and of the CPC Senior Director, Operations, the Independent Observer may attend the investigative scene once it has been cleared.
• 9.10. Qualifications of the Independent Observer
  • 9.10.1. A CPC Independent Observer's background should include either:
    • 9.10.1.1. legal training or training in the field of criminal justice, criminology or policing, combined with significant exposure to policing practices, and significant experience in the area of public complaints; or
    • 9.10.1.2. relevant policing experience outside of the RCMP, with significant experience in major crime investigations and MCM.
• 9.11. Securing documents
  • 9.11.1. The Independent Observer will possess the required security clearance for the handling of sensitive documents.
  • 9.11.2. The Independent Observer will keep all documentation provided by the RCMP in a secure setting. If a secure setting is not available, the Independent Observer will be provided with a workspace to consult the documents on site. If the Independent Observer feels that some documents must be taken to the CPC premises, the Independent Observer shall make the necessary arrangements with the OISP member and the Team Commander.
  • 9.11.3. Information provided to the Independent Observer shall be administered, maintained, and disposed of by the CPC in accordance with the laws that apply to record retention and personal information and all applicable policies and guidelines. This includes the Privacy Act, the Library and Archives of Canada Act and the Government Security Policy.

10. Operations – Sequence of Events

• 10.1. Notification
  
  The "E" Division Deputy Criminal Operations Officer (Contract) will contact the CPC Senior Director, Operations to advise him that an incident falling within the purview of the Program has occurred.
• 10.2. If CPC deems Program is not to be engaged
  • 10.2.1. If the CPC determines that the Program will not be engaged, the CPC Senior Director, Operations contacts the Deputy Criminal Operations Officer and indicates that the Program will not be engaged at this time.
  • 10.2.2. The CPC Senior Director, Operations may nonetheless request and the RCMP agrees to provide updates at regular intervals to determine whether a change in circumstance has occurred that could require reconsideration on the part of the CPC regarding engaging the Program.
• 10.3. If the CPC decides to engage the Program
  • 10.3.1. If the CPC decides to engage the Program, the CPC Senior Director, Operations will assign an Independent Observer.
  • 10.3.2. The CPC Senior Director, Operations will confirm with the Deputy Criminal Operations Officer that the CPC will engage the Program and will provide the name of the Independent Observer to the RCMP.
• 10.4. Communications
  • 10.4.1. The CPC Senior Director, Operations will inform the CPC Communications Manager that the program is being engaged and will provide the incident information.
  • 10.4.2. The CPC Communications Manager will then contact RCMP Communications.
  • 10.4.3. The CPC will post an information release on the CPC website indicating that the Program has been engaged in respect of a particular incident.
  • 10.4.4. The CPC media contact and a representative from the RCMP will provide technical briefings to the media at the beginning of the CPC involvement. In order to preserve the integrity of the criminal investigation, the Team Commander will review all media releases to ensure no sensitive investigative details are released.
• 10.5. Travel
  • 10.5.1. The Independent Observer will arrange travel to the location of the incident by the quickest method possible.
  • 10.5.2. The Independent Observer may travel with the OISP member if required.
  • 10.5.3. Travel with non-OISP RCMP members is generally not encouraged but should be assessed on a case by case basis depending on the remoteness of the location and the travel time that would be involved by attending via alternate means. The Independent Observer must obtain prior authorization by the CPC Senior Director, Operations to travel with non-OISP RCMP members.
  • 10.5.4. The OISP member will meet with the Independent Observer prior to arrival at the incident location and will provide the Independent Observer with an initial briefing.
• 10.6. Arrival at the incident location
  • 10.6.1. Upon arriving at the incident location, the OISP member will introduce the Independent Observer to the Team Commander and other RCMP members (potential and actual member of the investigating team).
  • 10.6.2. The Independent Observer will explain to the Team Commander and others (1) the role and mandate of the Independent Observer; (2) how the Independent Observer will carry out his or her duties; and (3) how the members of the investigating team are to cooperate with the Independent Observer. The CPC will prepare an information sheet containing the above-noted information and will distribute it to the Team Commander.
• 10.7. Impartiality Questionnaire
  • 10.7.1. The Impartiality Questionnaire will be distributed by the OISP member or by the Team Commander to the investigative team members (including the Team Commander) as soon as possible. The Impartiality Questionnaire is to be filled out promptly and provided to the Independent Observer without delay.
• 10.8. Initial Briefing
  • 10.8.1. If practicable, the Independent Observer is to attend the initial team briefing where the known facts of the case are discussed, the contemplated investigative approach set out and tasks assigned to the team members.
  • 10.8.2. If practicable, the Independent Observer is to be present when the Team Commander is selecting the team members. If the Independent Observer cannot be present at this time the Team Commander will inform the Independent Observer of the selection as soon as possible.
• 10.9. Timeliness of Raising Initial Impartiality Concerns
  • 10.9.1. The Independent Observer will provide the OISP member with initial observations regarding impartiality as soon as possible and without delay. This includes identifying potential concerns and proposing solutions to resolve the situation to the Team Commander at the earliest possible opportunity.
• 10.10. Independent Observer's Report to the CPC
  • 10.10.1. The Independent Observer will also provide his observations to the CPC Senior Director, Operations as soon as practicable and without delay.
  • 10.10.2. The Independent Observer's report to the CPC Senior Director, Operations should provide the following information: (a) overview of the current situation; (b) next steps (e.g. waiting for statements, production of documents); (c) outstanding actions of the part of the Independent Observer; (d) issues for consideration; (e) communications issues; (f) summary regarding the issue of impartiality regarding line management, appropriate level of response, timeliness of response and conduct pursuant to section 37 of the Act.
• 10.11. Dissemination of the Independent Observer's Report Within the RCMP
  • 10.11.1. Following consultation with the CPC Senior Director, Operations, the Independent Observer will provide a brief report regarding the existence or non-existence of impartiality directly to Team Commanders, in the presence of the OISP member.
  • 10.11.2. The Independent Observer will provide the OISP member with a copy of the Independent Observer's report prior to it being published on the CPC website. The OISP member will undertake to disseminate the Independent Observer's observations and findings within the RCMP, including to the Team Commander, as is deemed appropriate. In order to preserve the integrity of the criminal investigation, the Team Commander will review the report prior to it being published. (It being understood that the purpose of this review is solely to prevent the premature release of sensitive information that would impact on the criminal investigation.)
• 10.12. CPC's Report
  • 10.12.1. The Senior Director, Operations or Chair of the CPC (as appropriate) reports, confidentially, to the RCMP the findings of the Independent Observer. (It being understood that any actions or changes required in the management or conduct of an investigation, recommended or taken as a result of the Independent Observer's report, shall be the exclusive responsibility of the RCMP).
• 10.13. Communications
  • 10.13.1. The CPC website will be updated to reflect the findings and observations of the Independent Observer.
  • 10.13.2. The CPC media contact and a representative from the RCMP will provide technical briefings to the media at the conclusion of the CPC involvement. In order to preserve the integrity of the criminal investigation, the Team Commander will review all media releases to ensure no sensitive investigative details are released.

11. Governance

• 11.1. Joint Management Team
  • 11.1.1. There shall be established a CPC-RCMP Joint Management Team (JMT), which will meet semi-annually and on an ad hoc basis as required to discuss any issue or dispute that may arise with respect to the Program. Membership will include the CPC Senior Director, Operations (co-chair) and Officer in Charge, OISP (co chair).
  • 11.1.2. The JMT will be responsible for the day to day, ongoing management of the Program and will provide advice to the Chair of the CPC and to the Commanding Officer, "E" Division with respect to the Program.
• 11.2. Annual Meeting
  • 11.2.1. The JMT, the Chair of the CPC and the Commanding Officer, "E" Division will meet annually to discuss and assess the Program.
  • 11.2.2. The JMT may make recommendations regarding proposed modifications to the Program.
• 11.3. Evaluation
  • 11.3.1. The JMT will ensure that a joint review of the effectiveness of the Program occurs at least once every three years.
  • 11.3.2. Recommendations on opportunities to improve the Program will be prepared and forwarded to the JMT.

12. Duration

This Protocol shall take effect from the date that it is signed by the Parties and shall remain in effect unless terminated in writing by either party.

13. Amendment

Any material additions or amendments to the Program must have the agreement of both the Chair of the CPC and the Commanding Officer, "E" Division. Such additions or amendments shall be in writing and signed by the undersigned officials or their successors. When ratified by the signatories, such amendments will form part of this Protocol.

Signing Authorities

The Royal Canadian Mounted Police and the Commission for Public Complaints Against the RCMP hereby agree to proceed with this Protocol.

Signed by the authorized officers of the Parties:

For the CPC:

CPC Chair Paul E. Kennedy

Original signed on March 27, 2009
Date

For the RCMP:

Deputy Commissioner Gary D. Bass

Original signed on March 12, 2009
Date