APEC – Commission Interim Report
Before turning to each of the 17 categories of complaints, it will be useful to analyse briefly the proper relationship between government and the RCMP, and the concept of "police independence."
The nature and extent of police independence is not clearly defined in Canadian law. Although it is generally agreed that the RCMP does enjoy a measure of independence, there is no consensus, either in academic writing or in judicial decisions, as to what is the proper relationship between the federal government and the RCMP.
The RCMP Act suggests that the force is not entirely independent of the government by stipulating that the Commissioner of the RCMP is appointed by Cabinet (Governor in Council) and controls the force under the direction of the Solicitor General:
5. (1) The Governor in Council may appoint an officer, to be known as the Commissioner of the Royal Canadian Mounted Police, who, under the direction of the Minister, has the control and management of the Force and all matters connected therewith.
Despite the apparent over-arching control vested by statute in the Solicitor General, the common law has made it very clear that the RCMP does in fact enjoy a substantial measure of independence.
10.1. The English Approach
In England, in R. v. Metropolitan Police Commissioner, Ex Parte Blackburn [1968] 1 All E.R. 763 (C.A.), Lord Denning M.R. expressed a broad notion of police independence:
The office of Commissioner of Police within the metropolis dates back to 1829 when Sir Robert Peel introduced his disciplined Force. The commissioner was a justice of the peace specially appointed to administer the police force in the metropolis. His constitutional status has never been defined either by statute or by the courts.... I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State, save that under the Police Act 1964 the Secretary of State can call on him to give a report, or to retire in the interests of efficiency. I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone. (emphasis mine)
10.2. The Canadian Approach
The Supreme Court of Canada has recently confirmed that the RCMP are their own masters in the realm of law enforcement: R. v. Campbell, [1999] 1 S.C.R. 565. In that case, the court cited with approval the passage quoted above from Blackburn. Speaking for a unanimous court, Binnie J. said that a police officer engaged in a criminal investigation is not acting as a government agent. However, police perform many other functions apart from the investigation of crimes, including ceremonial duties and protection of visiting foreign dignitaries. Some of these functions bring the RCMP into a closer relationship to the Crown than others, the court said. The court referred to section 5 of the RCMP Act, which provides for the governance of the RCMP and said:
While for certain purposes the Commissioner of the RCMP reports to the Solicitor General, the Commissioner is not to be considered a servant or agent of the government while engaged in a criminal investigation. The Commissioner is not subject to political direction. Like every other police officer similarly engaged, he is answerable to the law and, no doubt, to his conscience.
In respect of criminal investigations and law enforcement generally, the Campbell decision makes it clear that, despite section 5 of the RCMP Act, the RCMP are fully independent of the executive. The extent to which police independence extends to other situations remains uncertain.
10.3. Independence vs. Accountability
In my view, there are compelling public policy reasons not to extend the concept of police independence beyond that set out in Campbell. The issue is one of balance. It is clearly unacceptable for the federal government to have the authority to direct the RCMP's law enforcement activities, telling it who to investigate, arrest and prosecute, whether for partisan or other purposes. At the same time, it is equally unacceptable for the RCMP to be completely independent and unaccountable, to become a law unto themselves.
This is precisely the position taken by the McDonald Commission in its report on the activities of the RCMP vis-à-vis the Quebec separatist movement in the 1970s: Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (Ottawa: Canadian Government Publishing Centre, 1981).
Indeed, the following extracts from the McDonald Commission's report strongly support the proposition that the only limit on executive interaction with the police is in the context of law enforcement – criminal investigation, arrest and prosecution:
We take it to be axiomatic that in a democratic state the police must never be allowed to become a law unto themselves. Just as our form of Constitution dictates that the armed forces must be subject to civilian control, so too must police forces operate in obedience to governments responsible to legislative bodies composed of elected representatives. This important doctrine in our system of democratic government has often been overshadowed by the parallel concept that the best interests of the state are served by keeping at bay any attempts to interfere with the making of police decisions relating to investigation and prosecution in individual cases.
The concept of independence for peace officers in executing their duties has been elevated to a position of paramountcy in defining the role and functions of the RCMP, thus setting the norm for all relationships between the government and the Force. We believe, on the contrary, that the peace officer duties of the R.C.M.P. should qualify, but not dictate, the essential nature of those relationships. The government must fulfill its democratic mandate by ensuring that in the final analysis it is the government that is in control of the police, and accountable for it. There is no inconsistency in asserting simultaneously that every member of the government, and above all the Minister responsible for the RCMP, has an essential obligation not normally to become involved in the decisions to be made by members of the Force, including the Commissioner himself, with respect to investigation, arrest and prosecution in individual cases.
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In the areas of both security and law enforcement we strongly support the principle that considerations of a purely partisan or personal nature should play no part in the making of decisions at any leve l
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In support of the claim by members of the RCMP to occupy a special status of independence in the discharge of their peace officer's duties, reference is frequently made to decisions of the English courts and to the Report of the British Royal Commission on the Police in 1962 which examined the relationship of police personnel in that country both with the central authority, in the person of the Home Secretary, and with the local police authorities. In its Report, that Royal Commission reaffirmed the special constitutional status of the police in Britain, on the grounds that in such "quasi-judicial" matters as inquiries with regard to suspected offences, the arrest of persons, and the decision to prosecute
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...it is clearly in the public interest that a police officer should be answerable only to his superiors in the force and, to the extent that a matter may come before them, to the courts. His impartiality would be jeopardized and public confidence in it shaken, if in this field he were to be made the servant to too local a body.
The Royal Commission, however, experienced more difficulty in defining the status of the chief constable and his relations with the local or regional police authority. When dealing specifically with the "quasi-judicial" matters referred to above, the Royal Commission accepted the proposition that it is in the public interest that a chief constable "should be free from the conventional processes of democratic control and influence". The problem areas, the Commission deduced, were those which fell outside the enforcement of the law in particular cases and included such matters as the police chief's general policies in regard to law enforcement over the area covered by his force, the disposition of the force, the concentration of police resources on any particular type of crime or area, the manner in which he handles political demonstrations or processions and allocates and instructs his men when preventing breaches of the peace arising from industrial disputes, the methods he employs in dealing with an outbreak of violence or of passive resistance to authority, his policy in enforcing traffic laws and in dealing with parked vehicles and so on.
It is important to note with respect to these questions, that the British Commissioners rejected the prevailing doctrine by which, as a consequence of his legal status, the chief constable is invested with an unfettered discretion, and accountable to no one and subject to no one's orders as to the manner in which he exercises that discretion.
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This fundamental distinction between the "quasi-judicial" and other functions of a police force is, we believe, pertinent to the Canadian situation.
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We believe that those functions of the RCMP which we have described as "quasi judicial" should not be subject to the direction of the Minister. To be more explicit, in any particular case, the Minister should have no right of direction with respect to the exercise by the RCMP of the powers of investigation, arrest and prosecution. To that extent, and to that extent only, should the English doctrine in Ex parte Blackburn be made applicable to the RCMP Even though the Minister should have no power of direction in particular cases in relation to the exercise by the RCMP of these "quasi-judicial" functions, the Minister should have the right to be, and should insist on being, informed of any operational matter, even one involving an individual case, if it raises an important question of public policy. In such cases he may give guidance to the Commissioner and express to the Commissioner the government's view of the matter, but he should have no power to give direction to the Commissioner. (emphasis mine)
10.4. Some Principles
I have carefully considered certain propositions set out in the reply submissions of Commission Counsel after their review of the McDonald Report and the decision in Campbell. With that assistance, I have formulated the following principles which I believe describe the current relationship between the federal government and the RCMP:
- When the RCMP are performing law enforcement functions (investigation, arrest and prosecution) they are entirely independent of the federal government and answerable only to the law.
- When the RCMP are performing their other functions, they are not entirely independent but are accountable to the federal government through the Solicitor General of Canada or such other branch of government as Parliament may authorize.
- In all situations, the RCMP are accountable to the law and the courts. Even when performing functions that are subject to government direction, officers are required by the RCMP Act to respect and uphold the law at all times.
- The RCMP are solely responsible for weighing security requirements against the Charter rights of citizens. Their conduct will violate the Charter if they give inadequate weight to Charter rights. The fact that they may have been following the directions of political masters will be no defence if they fail to do that.
- An RCMP member acts inappropriately if he or she submits to government direction that is contrary to law. Not even the Solicitor General may direct the RCMP to unjustifiably infringe Charter rights, as such directions would be unlawful.