Police Investigating Police – Final Public Report

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7. CPC Recommended Model for RCMP Member Investigations

Upon consideration of all the CPC findings and recommendations, this report concludes with what is deemed to be the most appropriate model for the handling of RCMP member investigations involving serious injury or death.

To one end of the spectrum lies the "dependent model" under which the RCMP is overall currently operating.⁹⁴ As outlined in greater detail previously in the report, this model largely represents the status quo for RCMP member investigations. This option would allow the RCMP to continue to investigate itself with a discretionary ability to refer investigations to external police forces (where deemed appropriate to do so by RCMP divisional representatives). No mandatory requirements and minimal national uniformity would be applied to the handling of such investigations.

Given that the RCMP overall already operates within this model, maintaining the status quo would, therefore, require nil additional human or financial resources; no policy or procedural changes; and no legislative changes.

The "interdependent model" would introduce the new RCMP Review Body's ability to formally monitor any and all RCMP member investigations (without requiring RCMP permission to do so, as is currently the case). This model would also allow the RCMP Review Body to refer an RCMP member investigation to another police force, where deemed appropriate. This would thereby remove the RCMP's current discretionary ability to decide when an investigation should be referred (and to whom). This model would also allow the new RCMP Review Body to undertake joint investigations with federal and provincial similarly-mandated bodies.

Overall, this "interdependent model" would require moderate financial and human resources for the new RCMP Review Body. Significant structural, procedural and policy changes for the RCMP would be required. In addition, legislative enhancements to create a new RCMP Review Body capacity to monitor, refer or conduct joint investigations with like bodies should also be considered.

At the very other end of the spectrum lies the creation of an entirely "independent body" that would be mandated to undertake all serious injury- or death-related criminal investigations into RCMP members. This would ensure that the RCMP was removed entirely from the investigative process with only civilians mandated to undertake criminal investigations into members involved in serious injury or death.

This independent model would therefore require significant human and financial resources and substantial legislative drafting to create a national body with the mandated powers to undertake criminal investigations into the RCMP. Given the geographic, political and legislative climate within which the RCMP is currently operating, this option may be considered. However, given the role of provinces in the administration of justice and the growing number of provincial criminal investigative bodies emerging (like SIU, ASIRT and others) it is therefore recommended that the new RCMP Review Body be provided with enhanced legislative powers to effectively work with these provincial bodies (through joint investigations and enhanced monitoring capacity for RCMP member investigations), as per detailed recommendations outlined below.

Key features of the recommended "Interdependent Model"

In seeking to identify the best option for the handling of member investigations, the CPC's recommended option underlines the importance of police in the process (as part of the solution), while also recognizing that an enhanced degree of civilian engagement in the criminal investigation process is fundamental to ensure its impartiality and integrity. To that end, the CPC recommends shifting from the current "dependent model" towards the "interdependent model."

The recommended "interdependent model" rests between the basic dependent model and the full-featured interdependent model.

Overall, the CPC believes that a criminal investigation resulting from member conduct is unlike any other criminal investigation and, accordingly, must be handled procedurally very differently. Therefore, to help transition the RCMP from its current "dependent model" to the "interdependent model," the following legislative, structural, and policy changes are recommended.

A. Legislative Recommendations

Given the CPC's finding that the issue today is not whether civilian review is desirable, but rather, how civilian involvement in investigations can be most effective, it is recommended that CPC legislation be modified to provide the new RCMP Review Body with the mandate to:

• Refer an RCMP member investigation. It is recommended that the current legislation be updated to allow the RCMP Review Body to: "refer the investigation to a police force other than the RCMP or to another criminal investigative body in Canada."
• Monitor RCMP member investigations.
  • The new RCMP Review Body should be responsible to determine when the monitoring capacity should be applied (discretion would lie with the RCMP Review Body and not with the RCMP, as is currently the case).
  • Additionally, grant the new RCMP Review Body with the authority to monitor any criminal investigation relating to a member of the RCMP, where it deems it appropriate to do so. This would therefore extend the RCMP Review Body's ability to deploy the observer to an investigation into an RCMP member being undertaken by an external police service and/or provincial criminal investigative body.
    • While permission from the investigating agency/body would be required to embed the observer, the authority would at least provide the new RCMP Review Body with the power where granted permission to observe.

• Undertake joint investigations with like-mandated bodies.

  Proposed draft legislation could include: "The board may conduct a joint investigation, review, inquiry, audit or hearing with another body in Canada which has powers, duties and functions that are similar to the board's, including provincial criminal investigative bodies." This would allow the new RCMP Review Body to undertake investigations with new criminal investigative bodies (like ASIRT) as they emerge.

• The RCMP Commissioner revise the current version of his Standing Orders to:
  • Include new Standing Orders to direct handling of member investigations, as per the recommendations herein this report.
    • Specify that member investigations are not to be handled like any other criminal investigation and must, therefore, follow strict procedures set out for member investigations.
  • Specifically revise current section 9: A member shall not investigate a complaint where that member may be in a conflict of interest situation.
    • It is recommended that the term conflict of interest" be further defined.

B. Structural Recommendations

The CPC's finding that national and divisional data collection is non-existent for member investigations (combined with varied divisional RCMP record-keeping and retrieval methods on this issue) demonstrates a lack of attention being placed on member investigations, and the CPC makes the following key recommendations:

• Create the position of National RCMP Member Investigation Registrar to manage, track, train, promote and advise on all issues related to member investigations.
  • This position would help address CPC findings related to the lack of consistency in current data gathering, monitoring and analysis of member investigations.
• The National Registrar would be responsible to:
  • Create an RCMP National Registry for all police investigating police data (especially for serious injury, sexual assault and death cases) with timely sharing of data with the CPC.
  • Create and manage an RCMP Police Investigating Police Advisory Group to help determine actions to be taken in sensitive cases.
  • Monitor effective compliance with policy and enforce compliance where necessary (e.g. consultation with Crown re: laying of charges mandatory).
  • Create and oversee a specialized unit with expertise on the handling of RCMP historical cases to be consulted-or deployed-where necessary.
  • Create a mobile critical incident member investigation team (with a CPC civilian observer embedded) that can be deployed where both the RCMP National Registrar and the CPC Chair jointly determined it necessary to do so.
    • A pool of qualified senior investigators placed on standby that can be deployed quickly (e.g. peacekeepers).

C. Policy and Procedual Recommendations

Procedural Recommendations

Prior to addressing the specific policies and protocols required for the handling of RCMP member investigations, it is first necessary to point out that, in the opinion of the CPC, there are certain instances where the RCMP should not investigate itself. Below is a chart that delineates that as the seriousness of the member-involved offence increases, a corresponding degree of independence and impartiality in that member investigation is required.

As identified through the report's case file and policy reviews, the current RCMP handling of member investigations (regardless of the type) remains entirely discretionary at the divisional level. There is no current national, HQ oversight of the process and no mandatory actions required for any member investigation. The chart below highlights the CPC's contention that as the seriousness of the offence alleged against a member rises, the discretion for the RCMP to respond as it deems appropriate must be removed and mandatory requirements inserted in its place.

Text Version

CPC Recommendation No. 12: Create the position of National RCMP Member Investigation Registrar responsible to provide the CPC Chair with regular monthly reports for all member investigations undertaken for indictable offences, hybrid offences and summary convictions.

Policy Recommendations

The CPC's policy analysis revealed that RCMP policies, while voluminous, are inconsistent and do not adequately address the handling of member investigations. Criminal investigations into members should not be treated the same as any other criminal investigation. To address the current void in effective and consistent policies and procedures related to the handling of member investigations, the CPC recommends the following key changes:

• Criminal investigations of RCMP members into allegations of serious injury, sexual assault or death in hardship or remote postings must be consistent with all other member investigation protocols, no exception.
• An administrative review is mandatory for all member investigations.
• The RCMP establish formalized MOUs for every RCMP division to ensure the mandatory referral of member investigations to an external police service is consistent and documented. At present, only New Brunswick (J) Division, Nova Scotia (H) Division and Newfoundland (B) Division have formalized MOUs in place.

Recommendation No. 13: The RCMP should formalize a memorandum of understanding for every division across the country to ensure consistency in the referral of member investigations to an external police service.

Where it is deemed appropriate for the RCMP to handle its own member investigation or where an RCMP member forms part of the investigative team (led by an external police force), the following policy recommendations would apply.

• Create an RCMP integrated manual to specifically address procedures for investigations undertaken by the RCMP into one of its own members. This integrated manual should have links to any additional relevant policies for ease of reference. Key features to be included in the integrated manual:
  • CPC recommended investigative team structure:
    • Qualified primary investigator at least one rank higher than that of subject member;
    • A minimum of two members required for every member investigations (including for subject and witness officer interviews) [the CPC found that 17 of 28 cases reviewed had only a single member assigned];
    • Qualifications of investigative team mandatory [as per recommendation];
    • Workload of members assigned to member investigations reassigned or adjusted to prioritize member investigation accordingly;
    • Timely completion of investigation preferably six months and not recommended to exceed one year;
    • Assign liaison position to member of investigative team to ensure timely and effective communication with public, family and subject member;
    • Self-identification of knowledge of subject member mandatory (i.e. conflict of interest form);
    • Use of a probe for lower-end investigations.⁹⁷

Recommendation No. 14: The RCMP should create an Integrated Manual to specifically address procedures for investigations undertaken by the RCMP into one of its members.

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94 It is important to note here that the current model the RCMP operates within also has an Observer Pilot Project in place-and the observer is a feature of the interdependent model. That said, the RCMP is not considered an interdependent model because the observer is only operating in two RCMP divisions and remains at the discretion of the RCMP to allow CPC involvement.

95 102 F.R. See Appendix 10 for the full list of Criminal Code Offence Grid which specifies whether an offence is indictable, summary or hybrid.

96 103 F.R. The RCMP National Registrar is to oversee the creation and signing of new memoranda of understanding in all divisions to explicitly define the circumstances under which an external police force or criminal investigative body must undertake an investigation, when RCMP members can form part of the investigative team, and when the CPC Observer should be embedded (as per above recommendations).

97 The "probe" consists of interviews with the complainant, victim and any other third-party witnesses; a review of operational files related to the complaint; and a review of members' notes and reports. This information is used to draft a report to help determine how a lower-end statutory investigation should proceed.

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