Police Investigating Police – Final Public Report

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3. Current Handing of RCMP Member Investigations – A Review of Legislation and Policy

At present, anyone (including a non-citizen) who has a concern about the conduct of an RCMP member can make a complaint to the CPC, the RCMP or the provincial government body concerned.  Once a complaint has been received by the CPC, it is documented and forwarded to the RCMP for the initial investigation. The statute under which the CPC operates generally requires that the RCMP conduct the first investigation into complaints, after which the CPC is involved in its capacity as a review body. The CPC becomes involved in a review capacity only when requested to do so by a complainant who is dissatisfied with the RCMP's handling of its investigation into the complaint. However, at the discretion of the Chair, the CPC may also conduct its own investigation in the public interest or conduct a public interest hearing.

It is important to note that all matters relating to the administration of justice (which include criminal investigations) remain within the strict purview of the provinces as guaranteed under s. 92(14) of the Constitution Act. This means that the CPC's mandate is solely limited to the conduct of RCMP members generally, and does not include the authority to conduct criminal investigations on its own.

To adequately assess how the RCMP undertakes an investigation into another RCMP member, it is necessary to first determine what legislation and policy is currently in place to guide RCMP action in this regard. This section will review relevant (1) legislation, (2) proposed model for new RCMP Review Body, and (3) policies that direct RCMP response as it relates to RCMP member conduct causing serious injury or death.

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(1) Legislation

There are no specific requirements under the Criminal Code regarding how an investigation into fellow police officers should be handled. And while specific reference to how police should investigate police is also absent from the Royal Canadian Mounted Police Act (RCMP Act), there are two features of this Act that warrant special attention given the impact on member behaviour and the handling of PIP cases.

1 (a) RCMP Act – s. 37 Conduct

Section 37 of the RCMP Act outlines eight guidelines for appropriate behaviour expected of RCMP members at all times. This section legislates the imperative need for members, as representatives of the RCMP, to act respectfully, dutifully and free from conflict of interest:

• 37. It is incumbent on every member
  • (a) to respect the rights of all persons;
  • (b) to maintain the integrity of the law, law enforcement and the administration of justice;
  • (c) to perform the member's duties promptly, impartially and diligently, in accordance with the law and without abusing the member's authority;
  • (d) to avoid any actual, apparent or potential conflict of interests;
  • (e) to ensure that any improper or unlawful conduct of any members is not concealed or permitted to continue;
  • (f) to be incorruptible, never accepting or seeking special privilege in the performance of the member's duties or otherwise placing the member under any obligation that may prejudice the proper performance of the member's duties;
  • (g) to act at all times in a courteous, respectful and honourable manner; and
  • (h) to maintain the honour of the Force and its principles and purposes.

1(b) Commissioner's Standing Orders

The Royal RCMP Act defines the "Commissioner's Standing Orders", in subsection 2(2) as:

The rules made by the Commissioner under any provision of this Act empowering the Commissioner to make rules shall be known as Commissioner's standing orders.

And while there are a broad number of Commissioner's Standing Orders outlined in the RCMP's Administrative Manual, three specific Standing Orders (Public Complaints) are applicable to the PIP context:

• Section 9: A member shall not investigate a complaint where that member may be in a conflict of interest situation
  • It is important to note that the term "conflict of interest" is not defined further in the Orders.
• Subsection I.2.b: If, as a result of an investigation, a member is believed to have committed a statutory offence: 1. it is within RCMP primary jurisdiction, take the same action as you would for any other person.
  • The Commissioner's Standing Orders 1.2.b 1. reference: "take the same action as you would for any other person" is consistent with the RCMP's current national Investigation Guidelines (outlined further later in this chapter).
• Subsection I.3.a: When you [Immediate Officer/Officer in Charge] are informed of a serious complaint against a member, including bribery, corruption or similar offence, inform the Criminal Operations Officers (CROPS), and follow division directives.
  • While most divisions do have some form of directive to Commanders and/or investigators to refer, report, or consult with Criminal Operations Officers (CROPS) under specific circumstances, the terminology directing the process varies by division and is often vague in nature (e.g. some divisions require directing the matter to Criminal Operations Officers (CROPS) "by the most appropriate means," others state by "direct means" and timing ranges by from "immediately" to "as soon as practical").

1 (c) Provincial Police Acts²³

Only three provincial police acts specifically address the role of an independent oversight body in the handling of police investigations: (1) Alberta, (2) Saskatchewan and (3) Ontario. It is important to note that while chapter 5 of this report provides greater detail on the mandate, features and functioning of these domestic oversight bodies in Canada, this section will remain strictly focused on defining the legislative basis for each.

In the case of Alberta, section 46.1 of the Police Act established the province's integrated unit to investigate allegations of serious criminal conduct and incidents of serious injury or death resulting from the actions of a police officer.

• Paragraph 46.1(2)d of the Act establishes an "integrated investigative unit to conduct an investigation into the incident or complaint, which may include taking over an ongoing investigation at any stage" which the Minister of Justice and Attorney General may direct to do so in case of incidents involving serious injury or death (or a complaint thereof) of a person that may have resulted from the actions of a police officer, or "any matter of a serious or sensitive nature" regarding the actions of a police officer.
• Subsection 46.2(1) states that the Minister "may [...] authorize it to act as another police service for the purposes of conducting an investigation under section 46.1."
• According to subsection 46.2(3), the head of this unit "is deemed to be a chief of police."
• The Alberta Serious Incident Response Team (ASIRT) was the model proposed for such a unit. ASIRT is comprised of civilian, RCMP and municipal police personnel who are directed by the province's Director of Law Enforcement to conduct investigations in cases of serious injury or death.

In Saskatchewan, the 2005 amendments introduced to the Police Act, 1990 establish the Public Complaints Commission (PCC).

• Section 45(1) of the Act specifies that in cases of a complaint regarding the actions of a police officer, the PCC, in consultation with the chief of police, "shall cause an investigation into the complaint to be conducted [...] as soon as practicable."
• It applies to all public complaints, including to potential offences "pursuant to an Act or an Act of the Parliament of Canada" (section 45(2)).
• Section 45(3) outlines the possible course of action for the PCC in the case of a complaint. The PCC may choose to investigate the complaint itself (3a), refer it back to the police service subject of the complaint (3b), appoint an observer who shall monitor the police investigation (3c), or refer it to another police force (3d).
• According to section 45(6) the PCC has the authority to assume responsibility of the police investigation at any point it feels necessary, at which time the police service in question must stop its own investigation and provide all required assistance to the PCC.
• Subsection 91.1(1) dictates that in cases of serious injury or death, the RCMP providing policing services within a municipality must request that the Deputy Minister of Justice appoint an observer "from another police service or detachment of the RCMP" to oversee the investigation. This observer shall be given "full access" to the investigation and report on all aspects of the investigation.
• In the case of investigations without prior complaint, police investigate the incident on their own (with the exception of investigations that "directly relate" to a member of the public, in which case the police chief must advise the PCC as soon as practicable. At that point, the PCC takes charge over the matter).

In Ontario, the Police Services Act (section 113) and the Regulation 673/98, Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit, outline the procedures to follow in cases of criminal offences committed by the province's police officers. Section 113 of the Act dictates that an independent unit shall investigate the circumstances of serious injuries, deaths and allegations of sexual assault that may have resulted from the actions of police officers.

• Section 113(5) of the Act states that the director of the Special Investigations Unit (SIU) "may, on his or her own initiative, and shall, at the request of the Solicitor General or Attorney General," conduct investigations in cases of serious injuries and deaths that may have occurred as a result of criminal offences committed by police officers. Police officers have a duty to cooperate "fully" with the unit (section 113(9)).
• Section 3 of the Regulation stipulates that the chief of police must immediately advise the SIU should an incident that falls within the unit's mandate occur.
• SIU is the lead investigator which has priority "over any police force" during the course of the investigation (section 5 of the Regulation).
• According to section 11(1) of the Regulation, the chief of police may also conduct an investigation into an incident that the SIU is involved in with the condition that the SIU keep its "lead role" in the investigation.

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(2) Proposed draft model legislation

As Canada's federal police force, the RCMP operates under contract with the provinces to provide provincial and municipal policing services. This process naturally gives rise to issues between the role of the federal body charged with review of RCMP conduct and the role of the government responsible for the administration of justice in each province.

To help address this issue and build an effective federal review regime for the RCMP, the CPC has drafted and publicly released proposed model legislation.²⁴ A number of specific proposed powers are of particular relevance to the PIP issue and would include the new RCMP Review Body's ability to: (i) undertake joint investigations, (ii) monitor RCMP investigations, and (iii) refer criminal investigations into RCMP member conduct to another police force.

• (i) Undertake joint investigations:
  At present, the CPC does not have the legislated authority to undertake joint investigations,²⁵ which can result in duplication of effort when a number of bodies simultaneously undertake separate investigations into the same conduct. The proposed legislation would allow the new RCMP Review Body to undertake joint investigations, reviews, inquiries, audits or hearings with another body with comparable powers.
• (ii) Ability to monitor RCMP investigations:
  At present, RCMP consent is required for the CPC to observe investigations into member conduct. In the absence of a mandated authority to monitor RCMP investigations, the RCMP is left to investigate itself without any external monitoring capacity. The proposed legislation would allow for the monitoring of any investigation with respect to the conduct of a law enforcement officer that the new RCMP Review Body deems necessary.
• (iii) Refer criminal investigations into RCMP member conduct to another police force:
  Currently, the CPC is not mandated, under any circumstances, to refer an investigation into RCMP member conduct to another police force. The proposed model legislation would provide the new RCMP Review Body with the ability to refer an investigation to an outside police force. This would help to enhance public confidence in the process and the transparency of investigation as well as minimize the conflict of interest associated with the RCMP investigating itself.

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(3) RCMP Policy

One of the main purposes of this investigation is to determine if current RCMP policy directing RCMP investigations into its members is adequate. Below is one of the criteria established in the November 26, 2007 CPC complaint to assess the RCMP handling of investigations into members involving serious injury or death.

CPC Assessment Criteria: Determine whether existing RCMP policies, procedures and guidelines are adequate to ensure that fair, effective, thorough and impartial investigations are carried out by RCMP members when investigating fellow RCMP members.

In order to make an assessment regarding the adequacy of RCMP policy, the CPC Review Team examined all national and divisional RCMP policies directly impacting how the RCMP investigates its own members. A request for every RCMP policy drafted between 2001 and 2008 that related to the handling of the PIP was provided by the RCMP for the CPC Review Team's assessment. A full list of policies reviewed for the purposes of this report can be found at Appendix 7.

National Policies

In addition to the proposed External Investigations or Review policy that is currently being finalized by the RCMP, the following national policies were examined: Sexual Offences, Arrest, Emergency Vehicle Operations, Prisoners and Mentally Disturbed Persons, In-Custody Death, Human Deaths, Major Case Management, Guarding Prisoners, and the national Investigation Guidelines policy. A few of the abovementioned policies refer to the possibility of independent investigation into an incident involving RCMP members, specifically Prisoners and Mentally Disturbed Persons, In-Custody Death, Major Case Management and External Investigations or Review.

The Investigation Guidelines policyat the national level emphasizes that if it is within RCMP primary jurisdiction, actions taken must be the same as they would be "for any other person" (F.1.a), whereas if outside RCMP primary jurisdiction, the matter shall be referred to the relevant police department with the primary jurisdiction (F.1.b).

Key features, best practices and omissions in RCMP policies were analyzed and then compared across divisions to determine consistency of application. The key findings of this review are outlined below.

Independence of Investigator

The appointment of an "independent" investigator to ensure the impartiality of an investigation is found in several national RCMP policies. The national Prisoners and Mentally Disturbed Persons, In-Custody Death, Major Case Management and External Investigations or Review policies all require an independent investigator to be assigned in specific cases. The definition of what constitutes an independent investigator, however, varies by policy and division.

In some divisional policies (B, G and J²⁶ Divisions) the investigator is specifically defined as "independent" only when the member assigned is "from another district/area or another police force." Another divisional policy (E²⁷ Division) allows for the discretionary appointment of an "autonomous" investigator in incidents involving police pursuits and/or police vehicle collisions that result in serious personal injury or death.

Referral to Another Police Force

Some policies further recommend that member investigations should be referred to another police force entirely to better ensure impartiality. The RCMP's proposed national External Investigations policy and the New Brunswick (J Division) policy are the only two policies that recommend this as an option. It is important to point out, however, that there is no mandatory requirement for any RCMP member investigation to be automatically referred to another police force-this decision remains entirely discretionary at the operational level.

Administrative Review

There is also no national policy that makes an administrative review mandatory for member investigations. An administrative review is defined in divisional policy as: "an independent review of all aspects of an incident undertaken with the express intent of identifying potential deficiencies in policy, training, equipment and/or officer survival techniques." The information gathered through an administrative review can assist the RCMP divisional Commanding Officer to more effectively guide an investigation and discharge accountability to the appropriate federal and/or provincial authorities.

The call for an administrative review is referenced in only two RCMP policies:

• (1) the national Reporting Discharges of Firearms policy orders the assignment of an "independent officer" to conduct the administrative review where appropriate. In cases of serious injury or death resulting from the actions of an RCMP's Emergency Response Team, the "Incident Commander from outside the Division" must be appointed in order to conduct the review.
• (2) At the divisional level, in Manitoba, an administrative review may be ordered at the discretion of the Administrative Services Manager for high profile investigations (defined as those investigations which may result in serious injury or death of a person, or lead to criticism of the RCMP). An independent officer "unassociated with the occurrence" and from a jurisdiction other than the one where the incident took place conducts the review. The recommendations that result from the review must then be directed to "the appropriate police centres for implementation."

Overall, the requirement for an administrative review can only be found in the context of a single national policy and one divisional policy. This results in the inconsistent application of administrative reviews across the country.

Scope of Policy – "Serious" offences only or "all" violations

In reviewing national RCMP policy, specifically Prisoners and Mentally Disturbed Persons, In-Custody Death, Human Deaths, Major Case Management and External Investigations or Review (as well as British Columbia's E Division policy), an issue emerged around the RCMP's definition of what constitutes a "serious" offence that warrants an independent review.

National policy is focused on cases of serious injury or death to a person, at which point the assignment of an independent investigator becomes a possible course of option. In the E Division Investigation Guidelines policy, the District Officer is invited to appoint an independent investigator in cases of "serious personal injury and/or death" resulting from police pursuits or police vehicle collisions.

In some divisional policy (B, D, G and J Divisions²⁸) the definition of a serious offence is broadened to any "violation or alleged violation of the Criminal Code, or any other federal or provincial statutory offence" committed by a member. This thereby eliminates the need for the detachment or division to make a determination of what it considers a "serious" offence when calling an independent review.

Policy – Mandatory Actions versus Discretionary Provisions

Below is a summary of the mandatory versus discretionary actions that are prescribed in the national and divisional policies.

National versus Divisional Policy

Each division with a formal "investigations" policy has its own version with differing guidelines as to how member-committed offences should be handled. Only six (of the 14) divisions addressed the issue of member investigations specifically. The table below illustrates some key differences between the newly developed, though not yet implemented, national policy on External Investigations or Review and policies at the divisional level.

Given the absence of direction prescribed in legislation regarding how members should investigate other members, the adequacy of policy to ensure impartiality, transparency and rigour in this process becomes all the more paramount.

Currently, inconsistency is found in policy content and application across divisions. While the RCMP has developed a number of policies relating to how criminal investigations should be undertaken generally, very few policies address the issue of RCMP member-committed offences specifically. This is a serious concern.

The sheer volume and variety of RCMP policies with implications for the issue of police investigating police is overwhelmingly large (e.g. hundreds of pages of policy relevant to the PIP were reviewed for this report alone). This policy "overload" poses a great threat to the RCMP's operational effectiveness. The very nature of front-line policing requires that direction be provided in a format that is clear, concise and easy to access.

While the new proposed national policy External Investigations or Review takes active steps towards providing consolidated guidance as it relates to the PIP, the content remains vague and far too much discretion remains with the divisions (divisional Commanding Officers, Officers in Charge or Criminal Operations Officers) to determine an appropriate response.

One key feature of the national Investigation Guidelines (and repeated in divisional policy) which bears closer examination is the following passage regarding how an investigation into another member must be handled:

"take the same action as you would for any other person" (F.1.a). While the intention of the RCMP may be an honourable one, given the repeated contention in policy that the handling of an investigation into another member should be managed exactly like any other investigation (meaning without bias), the very nature of an investigation by one police officer into another is fundamentally different than police investigating a member of the public for the exact same crime. Police are held to higher account by the very nature of the work they do. Like other professions that directly impact the safety and welfare of those they serve, there is a public expectation requiring that a higher standard of behaviour be upheld.

In the words of Albert Einstein, "no problem can be solved from the same consciousness that created it." By exposing the police thinking that investigations into its own members should be handled like any other investigation, we begin to identify the root philosophy guiding individual member behaviour. In most cases (while there are always exceptions) problems associated with police investigating themselves are rooted in the very process by which they must operate and not in individual behaviour. Recommendations to address this and other policy concerns are outlined in chapter 8.

CPC Finding No. 3: RCMP Policies, while voluminous, are inconsistent and do not adequately address the handling of member investigations.

CPC Recommendation No. 1: Overall, it is the CPC's contention that criminal investigations into members should not be treated the same as any other criminal investigation.

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23 See Appendix 5 for full provincial analysis.

24 See Appendix 6 for proposed draft legislation

25 Joint investigations being investigations performed in conjunction with a similar provincial police oversight or review body.

26 Newfoundland and Labrador, Northwest Territories and New Brunswick respectively. J Division (New Brunswick) follows a Memorandum of Agreement between the RCMP and New Brunswick police services pursuant to which a Use of Force Investigation Team (UFIT) is called in the case of a "critical incident." Article 4 of the agreement mandates that the officer in charge and the primary investigator be members of an independent agency not involved in the critical incident.

27 British Columbia.

28 Manitoba's policy refers to violations "relating to the Criminal Code or Federal Statute Offences." It must be noted that the policy of F (Saskatchewan) and K (Alberta) Divisions also point to "any criminal offence," but in their case, the divisions conduct their own investigation.

29 Newfoundland and Labrador, Saskatchewan, Northwest Territories, New Brunswick, and Alberta.

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