Chair's Final Report After Commissioner's Notice – Incident Related to Observance of Protocols in Police Exchange Operations

RCMP Act Subsection 45.46(3)

Complainant:
British Columbia Civil Liberties Association

July 4, 2008

The Complaint

In May 2004, RCMP members from "E" Division were involved in an exchange program in which Texas State Troopers accompanied them during their policing duties. In one instance a motorist was pulled over by a Trooper while the supervising RCMP member finished dealing with another driver. The contact resulted in the member asking the motorist if he would consent to a search of his vehicle. The motorist declined and departed the scene.

Both the member and Trooper were suspicious of the motorist and the Trooper took it upon himself to alert a fellow Trooper, who was working under the supervision of another member, that he felt the motorist may have been involved in illegal activity. This was conveyed to the second member who pursued the motorist and pulled him over a second time a short distance down the highway. This member also found the motorist's behaviour to be suspicious and commenced an impaired driving investigation which resulted in his determination that the motorist was showing signs consistent with the recent use of marijuana. At this time the motorist agreed to a search of his vehicle. The search did not result in the location of any contraband and the driver was permitted to leave the scene.

On March 23, 2005, Mr. Russell, as President of and on behalf of the British Columbia Civil Liberties Association, filed a complaint with the Commission. He alleged that unknown RCMP members permitted direct policing by Texas State Troopers, illegally detained the motorist and searched his vehicle and that a Drug Recognition Expert conducted an impaired driving investigation without grounds.

The RCMP Final Report

After examining the complaint, the RCMP provided Mr. Russell with a notice of direction dated April 25, 2005, which explained that, pursuant to paragraph 45.36(5)(c) of the RCMP Act, the RCMP had terminated its investigation as, "any further investigation is not necessary."

Mr. Gratl, then President of the British Columbia Civil Liberties Association, was not satisfied with the RCMP's decision to terminate the investigation into the complaint. On June 23, 2005, he requested a review by the Commission.

By letter dated August 16, 2005, the RCMP acknowledged having terminated the investigation but stated, "[a] file review and further research into your allegations has been conducted and I am now in a position to comment on your concerns." The correspondence was in the form of a letter of disposition which found each of the allegations to be unsupported.

The Commission's Review and Interim Report

The Commission received the original relevant material package on September 8, 2005. On  April 10, 2006, the Commission requested additional information, which the RCMP did not consider relevant to the investigation.  Eventually in August 2006 the RCMP provided the documentation.

On December 29, 2006, I provided a copy of my Interim Report to the Commissioner and the Minister. I found that the RCMP should not have terminated the investigation into the complaint and that the evidence supported the allegations raised in the complaint:

1. In contravention of Force policy, the RCMP permitted direct policing by Texas State Troopers; and
2. That a member purporting to be a Drug Recognition Expert conducted an impaired driving investigation without grounds, unlawfully detained the motorist and unlawfully searched his vehicle.

I made five recommendations to redress the problems identified in the report, with the focus being to ensure institutional compliance with Canadian law whenever the RCMP works with out-of-jurisdiction peace officers and to educate future participants in such programs as to their rights and obligations.

The Commissioner's Notice

Pursuant to subsection 45.46(2) of the RCMP Act, the Commissioner is required to provide written notification of any further action that has been or will be taken in light of the findings and recommendations contained in my Interim Report. 

On July 3, 2008, I received the Commissioner's Notice. The Commissioner agreed with my findings and recommendations except for a portion of my second recommendation (see below) where I had called for a copy of this report to be disseminated to each of the members and observers involved in future exchanges between the RCMP and other police agencies that do not have policing authority in Canada. He stated that it would not be practical to provide a copy of the report to all members and observers engaged in such future exchanges.

After reviewing my recommendations as a whole and the Commissioner's rationale for not implementing this one specific part, I am satisfied that even with this departure from the recommendations contained in the Interim Report they will be sufficient to ensure institutional compliance with Canadian law whenever the RCMP works with out-of-jurisdiction peace officers. In addition, my recommendations will serve to educate future participants in such programs as to their rights and obligations. I also note that the Commissioner has undertaken to direct the implementation of the balance of my recommendations. Accordingly, I have reframed the recommendations below by deleting reference to the dissemination of this report.

The Commission's Recommendations

1. I recommend that a program review of Operation Pipeline be initiated to assess whether policing techniques shared and learned during these exchanges are fully compliant with Canadian law and the Charter of Rights and Freedoms.
2. I recommend that in future operations, in which exchanges occur between the RCMP and police agencies that do not have policing authority in Canada, the participants should be educated as to their respective rights and duties.
3. I recommend that the RCMP consider modifying its practice such that foreign police officers are formally provided policing status where they will be exercising policing powers in Canada.
4. I recommend that the author of the letter of disposition be given operational guidance with respect to the appropriate use of subsection 45.36(5) of the RCMP Act.
5. I recommend that the members involved in this incident and the author of the letter of disposition be provided with a copy of this report.

Comment

I believe that I must make comment as to the delay in receiving the Commissioner's Notice. The delay was in excess of eighteen months for a file in which the Commissioner was in almost complete agreement. Furthermore, the Commissioner's Notice provided no explanation as to this delay.

Delays of this nature negatively impact both the effectiveness of any remedial measures and the perception of the complainant(s), member(s) and the public. The Commission has raised this issue in a number of recent files, although none with a delay of this length. I now understand that the RCMP has dedicated new resources to its Professional Standards Unit which should assist in improving this situation.  The Commission will continue to monitor RCMP performance in this area.

Pursuant to subsection 45.46(3) of the RCMP Act, I respectfully submit my Final Report and, accordingly, the Commission's mandate in this matter is ended.

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Paul E. Kennedy
Chair