APEC – Commission Interim Report
The Vancouver APEC conference was an extraordinary event in Canadian policing but the evidence is clear that police in Canada and around the world will face increasing challenges as they are called upon to police international gatherings that attract growing dissent. Their role is to protect government leaders and officials and also to safeguard citizens' rights to lawful protest. As I have quoted Mr. Justice Doherty saying, in the Brown case: "We want to be safe, but we need to be free.";
The recommendations I make are focused on the policing of public order events, given that the 52 complaints arose in that context. In many respects, however, the findings of fact that I have made in this report speak for themselves and do not require specific recommendations in order to point the way to a more competent, professional and proficient delivery of policing services at public order events. An obvious example is the need for contingency plans for eventualities that it is reasonable for the RCMP to anticipate.
31.1. Policing Public Order Events
31.1.1. Opportunity for protest
When the RCMP is called upon in future to police public order events, the leadership of the Force should ensure, that:
- generous opportunity will be afforded for peaceful protesters to see and be seen in their protest activities by guests to the event; and
- no attempt will be made to use a university campus as the venue for an event where delegates are to be sequestered and protected from visible and audible signs of dissent.
31.1.2. Integrated command structure
In preparing to police a public order event, the RCMP should adopt an integrated or similar command structure that would not cause the difficulties that were presented by the sharp division of the planning and operational responsibilities seen here. The work of policing such an event takes place in very large part during the preparatory period and those who are in command during the event must have had involvement at that stage. There must be continuity of personnel. In that way, those who are charged with responsibility for policing the event and for making decisions that will inevitably have to be made under pressure and in short order, will be well equipped for their task.
31.1.3. Separation of roles
Roles and responsibilities are divided among various positions in the command structure so as to provide for checks and balances and accountability. When one position reports to another, those positions should never be filled by the same officer.
31.1.4. Policy and Training
A current policy addressing the methodology for policing public order events should be formulated by the RCMP and a comprehensive training program for senior personnel interested in pursuing leadership roles in the policing of such events should be instituted.
31.1.5. Quick response teams
While Quick Response Teams are ad hoc in nature, when they are to be assembled for an approaching public order event, they should be in place for sufficient time to allow for group instruction and training in the field so that they are well equipped to meet their responsibilities as a cohesive unit.
31.1.6. Briefings
Briefing of police personnel assigned to duties at a public order event should be a priority so that those delivering services will understand how their responsibilities relate to the total operation. With proper briefing they will be well aware of the time and location of anticipated occurrences, arrangements made to control demonstrations, proposed arrest procedures, and available facilities for holding those to be incarcerated and any other matters that will allow for a more competent performance on their part.
31.1.7. Legal support
In planning for policing a public order event, legal advice should be made available to officers charged with producing documents and policies that could impact on Charter or other rights of citizens. In some instances it will be Crown Counsel who will be most appropriate to fulfil this role; in other instances a Department of Justice lawyer should be
31.1.8. Record keeping
Following completion of a public order event there should be a designated officer who has been intimately involved in the event charged with the responsibility to compile a full file of all matters relating to the planning and delivery of the police services for the event. There should be no need to reinvent the wheel on each and every occasion. Within that file should be all operational plans prepared for the event. These files should be stored either at division or national headquarters as the case may be and personnel in senior positions at public order events should be made aware of the availability of that material.
31.1.9. Relations with protesters
The RCMP should continue to follow, and enhance where appropriate, its existing open door policy of meeting and working with the leadership of protest groups, well in advance of a planned public order event, with a view to both police and protesters achieving their objectives in an environment that avoids unnecessary confrontation.
31.1.10. Warning to protesters
Before taking action that could result in physical confrontation, police should make all reasonable efforts to warn protesters of the duty then resting with the police (such as, to clear a roadway); the steps they intend to take to fulfil that duty; and what actions the protesters should take to allow the police to fulfil that duty and to allow the protesters to avoid arrest. Once the warning has been given, the protesters should be given a reasonable opportunity to comply before the police take further steps.
31.1.11. Body search policy
RCMP policy with respect to body searches of persons in custody, whether formulated at the national, division or detachment level, should record the need for attending officers to take into account, when deciding the type of body search to be conducted, all relevant factors, including the circumstances that gave rise to the arrest and that will involve, when the arrest has been made at a public order event, the subject matter of the event, its location, the role of civil disobedience and the extent of violence involved, if any.
31.1.12. Release of prisoners
When releasing prisoners from custody, the police should consider the circumstances of prisoners who are particularly vulnerable, as Ms. Worton was, especially when they are being released late at night and at a considerable distance from the place of arrest.
31.2. Public Complaints Procedure
31.2.1. Availability of a summary process
The procedure followed in this matter was lengthy, complex and expensive. There should be provision for taking evidence by affidavit, where that is appropriate. There should also be available a summary procedure, similar to that provided by Rule 18A of the British Columbia Supreme Court rules, for use in appropriate cases.
31.2.2. Granting of Complainant Status
The existing complaints process is both wide and generous in terms of who will be accepted as a complainant and the rights of participation in a hearing afforded to those who are accepted as complainants. Any member of the public, whether or not that person is personally affected by the conduct at issue, may make a complaint and receive the benefit of those rights of participation. Travel and living expenses can be allotted to complainants and their counsel. Unquestionably, these broad and generous rules contributed to the long and expensive hearing just concluded. I recommend a review of the existing process with emphasis on the basis on which complainant status is granted. One model for consideration is the Police Act (British Columbia) which provides for summary, expeditious and limited procedures in appropriate circumstances.
31.2.3. Separation of Functions
The B.C. Civil Liberties Association takes the position that the current statutory structure fails to ensure clear separations between participants in the process who have different functions. It points out that the Commission Chair has the power, either by statute or commission policy, to lay complaints; to choose whether to proceed by investigation, review or hearing; to set the Terms of Reference for a panel; to appoint a panel; to sit on a panel; and to edit and finalize review reports. The Association believes that what they describe as "this lack of institutional independence"; of panels from the Commission Chair is so significant as to possibly impede the fairness and impartiality of tribunals and that future inquiries may be hindered by confusion about the proper roles of the Commission Chair.
The Association acknowledges that the shortcomings it sees in the present structure of the Commission are statutory in nature. In other words, it is what Parliament intended. For the benefit of those who, from time to time, review the currency and appropriateness of existing statutory provisions, I pass on in this report these views of the Association and recommend that they be considered at the appropriate time and place.
31.3. Relations with the Canadian Government
31.3.1. Statutory recognition of police independence
The RCMP should request statutory codification of the nature and extent of police independence from government with respect to:
- existing common law principles regarding law enforcement; and
- the provision of and responsibility for delivery of security services at public order events.
31.3.2. RCMP responsibility
Pending statutory clarification, when the RCMP have agreed to police a public order event, there should be a clear understanding, by both sides, of the terms of the agreement regarding the provision of and responsibility for the delivery of security services at public order events. By whatever educational or other communication means available, the RCMP must instil in its officers, particularly those at senior levels who could be in contact in their professional work with senior representatives of the Government of Canada, that they are to brook no intrusion or interference whatever from government officials as they meet the responsibilities of providing the agreed upon security services. While there will be room for a consultative process in such matters, ultimate responsibility must rest exclusively with the RCMP. Officers should know that any actions on their part, beyond participating in a consultative process, that allows for intrusion by government officials into the formulation and execution of decisions relating to the provision of security services, will result in disciplinary action.
31.3.3. Record of meetings
Where in the planning stage of a public order event, meetings or other contact occurs between police and senior federal government officials, examples of which are to be found in this report, where practicable, minutes of those occasions should be recorded and, where that does not occur, the police should, subsequently, record the business transacted in a memorandum to file.
31.4. Relations with Foreign Governments
Similar to relations with the Government of Canada, police officers should brook no intrusion or interference from foreign diplomats or consular officials when meeting their responsibilities of providing security services to the Canadian public, and they should be made aware that any deviation from that position can be expected to result in disciplinary action.
31.5. General
31.5.1. Consistent policies
Detachment policies on specific issues should, as much as possible, be consistent from one detachment to another. That will benefit RCMP members and users of RCMP services alike. To that end there should be coordination of those policies in national headquarters with designated personnel assigned to advise detachments and further, detachment policies should be vetted by legal counsel to ensure compliance with the law and consistency with national policies.
31.5.2. Privacy for personal searches
Detachment facilities should contain a private area for conducting personal searches of prisoners in order to respect the privacy and dignity of those being searched. If the required and agreed upon renovations to the Richmond Detachment's facilities have not been completed at the time of the release of this report, they should be carried out without further delay.
All of which is respectfully submitted this 31st day of July, 2001.