:
Good afternoon, everyone.
This is meeting number 51 of the Standing Committee on Public Safety and National Security on Monday, October 15, 2012. Today we are going to continue our consideration of Bill .
On our first panel of witnesses we have, from the Department of Public Safety and Emergency Preparedness, Mark Potter, director general for the policing policy directorate, law enforcement and policing branch, and Anita Dagenais, senior director of the RCMP policy division, law enforcement and policing branch.
Welcome.
Also, from the Royal Canadian Mounted Police, we have Chief Superintendent Craig MacMillan, director general, adjudicative services, and Superintendent Michael O'Rielly, director of the legislative reform initiative.
From the Treasury Board Secretariat, we have Carl Trottier, executive director of strategic compensation management, compensation and labour relations sector.
We're looking forward to your comments.
We'll extend the time for our first panel to ensure that our witnesses and members have ample opportunity for questions and answers. We are going to go beyond 4:30, if that would be all right. We have three different groups here.
Also, I see Mr. Potter here. I recall that the last time Mr. Potter was here in the spring we started three-quarters of an hour late, I think, and we had votes and we went back and forth. His day was cut short then, so we certainly don't want to do that again today.
We welcome you.
Mr. Potter, perhaps we will begin with you.
:
Thank you very much, Mr. Chair. It's a pleasure to be here again.
You've already introduced the five of us at the table. I'd just like to say that we and others have been heavily involved in developing this legislation, and we very much appreciate the opportunity to meet before this committee and to discuss Bill with all of you today.
As you heard from the minister on October 3, this bill has three main components. I will provide an overview of the first two, namely, the strengthened RCMP public complaints regime and the establishment of a statutory framework for handling criminal investigations of serious incidents involving RCMP members.
My RCMP colleague, Chief Superintendent Craig MacMillan, will speak to the RCMP's modernized discipline, grievance, and human resource management framework.
Before going into the substance of the bill, I think it would be helpful to provide some context around oversight of RCMP conduct. When an incident or event occurs that puts into question the appropriateness of an RCMP member's conduct, up to three distinct processes can be triggered. Although each process is distinct, sometimes all three are engaged. Permit me to quickly outline each of these three processes.
The first is a public complaint, which is usually investigated in the first instance by the RCMP. If the complainant is not satisfied with the RCMP's handling of the complaint, which only happens with about 15% of all complaints, he or she can seek further review by the current Commission for Public Complaints Against the RCMP, or CPC.
The second is internal RCMP conduct or discipline investigations. Similar to that of all other police services in Canada, the internal discipline regime within the RCMP is based on its code of conduct. If an officer conducts himself in such a way that may be contrary to the RCMP's code of conduct, for example, by behaving in a manner that is disgraceful or disorderly or that could bring discredit on the force, an internal review process is undertaken.
If the officer is not satisfied with that outcome, the RCMP external review committee, an independent review agency similar to the CPC, will review the case and make recommendations to the RCMP commissioner, who renders the final decision. Judicial review is available should the officer wish to appeal further.
The third element of oversight is the investigation of police conduct that could lead to criminal charges against an RCMP officer. It's important to note that a criminal investigation will take precedence over the other two processes, which may be placed on hold until the conclusion of the criminal case.
To recap, you could have a single incident that gives rise to one, two, or all three processes, namely: public complaint, internal discipline, and criminal investigation.
Bill enhances and streamlines each of these three processes, and in so doing contributes to improved oversight, accountability, and, ultimately, public confidence in the RCMP.
In terms of the public complaints regime, this bill modernizes it in several important ways. First, it creates a new independent complaints commission—the civilian review and complaints commission for the RCMP, or the CRCC—in order to strengthen and bring the RCMP's complaints regime in line with other modern provincial, federal, and international review bodies. The chairperson of the new commission, acting independently within the framework of the CRCC's legal mandate, reports to Parliament through the Minister of Public Safety. The minister is required to table the commission's annual report in each House of Parliament within the first 15 sitting days after receiving the report. This is a long-standing statutory obligation that would be continued under Bill .
I would note that this reporting structure is common among review bodies and respects the RCMP accountability structure, where the commissioner is responsible for the control and management of the RCMP under the direction of the minister.
The CRCC will have strengthened investigative powers similar to that of a superior court of record whenever it undertakes a complaint investigation or a public hearing of a complaint. The CRCC will be able to summon and enforce the attendance of witnesses, compel witnesses to give oral or written evidence under oath, and compel the production of any documents or material considered relevant and necessary for the investigation.
Bill provides the CRCC with access to all RCMP information that it deems relevant to the performance of its duties and functions, including national security information as well as privileged information, with two important qualifications.
In terms of privileged information, which is sensitive and requires a higher standard of protection, the commission will now have access to such information if it is both relevant and necessary to the work of the commission. To my knowledge, no other police review body has access to privileged information by statute.
This regime sets a new standard in this regard. The commission will not have access to cabinet confidences. This is consistent with other federal and provincial review bodies.
Currently the CPC's work is centred on complaints. It does not have the legislative authority to conduct reviews of RCMP policies and procedures without a complaint first being lodged. Under Bill the CRCC will have the ability to review RCMP activities to assess whether these were carried out in accordance with legislation, regulations, and policies.
Such reviews will serve as an early warning signal, identifying issues or trends before they become the subject of a complaint or delving into matters for which there is often limited direct interaction with the public, for example, national security activities. These CRCC reviews will examine the RCMP's compliance with legislation and policies and make recommendations to the RCMP commissioner and the Public Safety minister through public reports.
Further, the bill addresses provincial and territorial calls for enhanced RCMP accountability to contract jurisdictions. As you would have heard from the Minister of Public Safety, the proposed changes to the RCMP Act are designed to enhance the accountability of the RCMP and to support the implementation of the new 20-year contract agreements entered into with the provinces and territories this year, which include enhanced governance and engagement.
Provinces and territories that contract RCMP police services have told us that they want to be kept apprised of police complaints in their jurisdictions. Accordingly, provincial police complaints bodies, which exist in all provinces, will be notified whenever a complaint against the RCMP is filed in contract jurisdictions.
In addition, contract jurisdictions will receive the CRCC's reports on relevant individual complaints in their respective jurisdictions, tailored annual reports, and reports on relevant policy reviews.
Separate from the complaints process, Bill will increase the transparency and accountability of criminal investigations into serious incidents involving RCMP members, essentially addressing long-standing concerns regarding the RCMP investigating its own members.
A serious incident is any incident in which the actions of an RCMP member may have resulted in death or serious injury or is of significant public interest that it merits an independent criminal investigation. In these latter cases, the Commissioner of the RCMP, the Minister of Public Safety, or the appropriate provincial or territorial minister will determine if the public interest is such that an external investigation is required.
There will be a clear, legally mandated three-step hierarchy for handling criminal investigations involving RCMP members. First, investigations into these incidents will be referred, subject to the province's approval, to an independent provincial civilian investigative body that has as its mandate to undertake criminal investigations of incidents involving police officers. Civilian investigative bodies currently exist in B.C., Alberta, and Nova Scotia. Manitoba has also passed legislation to allow for such a body.
Second, if these provincial bodies are unable to take on the investigation, or in those provinces where they do not exist, the RCMP will be required to refer the investigation to another separate police service where feasible. For example, for a serious incident involving an RCMP member in Moose Jaw, Saskatchewan, the case would be referred to another police service, such as the Regina Police Service.
Finally, as a last resort, when neither of these options apply, the RCMP would undertake the investigation itself and would be required to take special measures to ensure the investigation is unbiased and impartial. It is important to note that when these criminal investigations are undertaken by the RCMP or another separate police service, an independent observer could be appointed from the province or the new commission to ensure the impartiality of the investigation.
That concludes my overview of the proposed strengthened RCMP public complaints regime and the new statutory requirements placed on the RCMP regarding serious incident investigations involving RCMP officers.
Let me now turn to my RCMP colleague, who will outline the provisions for the new RCMP HR management framework.
Thank you very much.
:
Good afternoon, Mr. Chair and members of the committee. Thank you for providing us the opportunity to appear before you.
I will briefly highlight how Bill will contribute to enhancing accountability and responsibility within the RCMP through the reform of certain key human resource management processes.
One of the primary concerns regarding the existing RCMP Act is that it limits the ability of a manager or supervisor to deal with incidents of misconduct. If an incident is considered to require more than a reprimand or forfeiture of one day's leave, responsibility for the case is taken out of the hands of the immediate manager, as it must be forwarded to an adjudication board for a formal hearing. There, before a board composed of three officers, an adversarial and time-consuming process of formally presenting evidence in a court-like setting occurs. Bill provides a framework that permits and empowers managers closest to the action, so to speak, to identify and respond more promptly and more effectively to the vast majority of incidents of misconduct.
Particularly important to all stakeholders and to the public is that the bill expressly articulates the purposes of the conduct regime, including a code of conduct that emphasizes the importance of maintaining the public trust and the high standard of conduct expected of members, establishing a process for dealing with contraventions in a fair and consistent manner at the most appropriate level and for the imposition of measures that are proportionate to the nature and circumstances of the contravention and, where appropriate, are educative and remedial rather than punitive.
Managers will be provided with the ability to ensure that relevant information is gathered to determine if a member has contravened the code of conduct, and, once a member has had the opportunity to provide a response to the allegations, to determine the most appropriate response.
This approach is not only consistent with how issues of misconduct are generally dealt with in the public service, it also accords with a trend in police reform in other Commonwealth jurisdictions to handle incidents of misconduct through less formalistic mechanisms.
Cases in which a member may face dismissal will be referred to conduct boards that have greater latitude to manage hearings as informally and expeditiously as the circumstances and considerations of fairness permit. During conduct proceedings, members will have access to representation from either a staff relations representative or legal counsel. Decisions on measures may be appealed to the commissioner.
When a manager has imposed a measure that includes a penalty of more than one day of pay or demotion, the member will be able to seek a review through an independent third party, the external review committee. The committee will provide a report containing findings and recommendations for the commissioner, who then makes the final decision on appeal, subject to judicial review. Timelines will be established to ensure the process is conducted in a timely fashion, including the establishment of service standards for the external review committee.
The bill also provides the commissioner with the authority to establish procedures for the investigation and resolution of harassment complaints, including sexual harassment, when the respondent is a member. This authority is necessary for the commissioner to deal with concerns that have been raised in respect of harassment in the RCMP workplace. Presently, the RCMP is required to consider complaints of harassing behaviour through two processes, one defined by the Treasury Board harassment policy and the second through the legislative provisions of the RCMP Act.
The Treasury Board harassment policy focuses on preventing and stopping harassing behaviour through early intervention in order to return the workplace to a respectful and professional state. The current RCMP Act discipline system is designed to determine if a contravention of the code of conduct has occurred, and, if so, to impose a consequence on the offending member.
The issue of relationship repair or complainant participation during investigation or hearing does not really form part of the discipline process at present. This dichotomy has resulted in an inordinate amount of time being spent trying to comply with conflicting processes in place of addressing and resolving the matter of harassment.
In addition, the RCMP is actively pursuing the establishment of a comprehensive respectful workplace program that focuses on the prevention and early resolution of harassing behaviours, which will also be bolstered by the new investigation and conflict resolution processes in Bill .
During the October 3 meeting of this committee, the minister and commissioner described how the bill will provide new authorities for the commissioner to, among other things, discharge and demote members on non-disciplinary administrative grounds. A question that has been raised in relation to these authorities is whether members will be adequately protected.
First, it is important to note that these proposed authorities essentially mirror those provided to deputy heads under the Financial Administration Act and to other Canadian police executives. The authorities are remarkable in the RCMP context only in that they were not previously available to the commissioner in the proposed form. Second, it is important to note that Bill requires that these authorities be based on cause.
Finally, as with cases of misconduct, members will have access to representation and advice and will have the right to grieve these decisions, which will be subject to independent examination by the external review committee and to judicial review if necessary.
I'd also like to briefly address how the bill will support cultural change in the RCMP.
Legislation alone cannot bring about a cultural change, nor can it ultimately prevent any or all bad behaviour. However, what the bill can do is to serve as a catalyst for change.
First and foremost, the bill provides a statutory framework to ensure that members are responsible and accountable for the promotion and maintenance of good conduct in the force.
Further, it will permit and require managers to manage. Where members have not behaved consistent with expectations, managers at the most appropriate level will have both the responsibility and authority to deal with most incidents of misconduct in a timely, fair, and proportionate manner. The requirement to create and apply a professionalized, informal conflict management system will also provide members, their representatives, supervisors, and managers the ability to identify and resolve workplace issues as they arise and not let them fester. All of these factors are important to sustaining a culture of accountability and responsibility in support of a respectful workplace.
Finally, unlike the strictures of the current act, an important feature of Bill is that it provides an overall framework that enables ongoing reform and modernization of RCMP human resource processes. The ongoing ability to develop and adapt such processes based on experience and practice is a central component to enhancing accountability and assuring the continuing transformation of the RCMP.
It will be our pleasure to provide further information and response to any question the committee may have.
Thank you.
As you rightly note, there is an important consideration here of ensuring that you have a high-quality, credible investigation of the police. That requires a certain level of skill and experience by the individuals conducting that investigation. You want to balance that, on the other hand, by ensuring that public confidence is strengthened in knowing that it's not necessarily the police investigating the police when at all possible. This scheme tries to find the right balance, one that recognizes the important principles at play and some of the operational realities.
The three-step hierarchy is very much intended to do that. It's not that you pick one of the three; you start with the first option, and if that doesn't work—and only if that doesn't work—you go to the second. The first option in B.C., Alberta, and Nova Scotia is that the province would refer that matter for investigation to the existing civilian police investigation body. It would be unusual if there was some reason they couldn't do that. That would be the process you would use. You ensure public confidence in the process by knowing there's an entirely separate civilian investigative body with the right skills and experience to fully conduct that investigation.
If you are in Saskatchewan or another contract jurisdiction and you don't have one of these civilian investigative bodies available to you, you would go to the next-best option, which is to have a completely separate police service conduct the review. That ensures there's impartiality, that there is no possibility that members of the same police service who know each other—perhaps socially—would be investigating one another. You rule out any partiality.
If that is not possible, for whatever reason—and it's usually operational, such as in the far north or somewhere where you can't get a police service there quickly enough—you would have the RCMP conduct the investigation. In that case, there would be an obligation on the RCMP to demonstrate that they have gone through that three-step process and they haven't been able to refer to a civilian body or have another police service do it. Moreover, they would have to explain what measures they are taking to ensure the impartiality of the investigation they are conducting on themselves. For example, there would have to be information provided on the nature of the RCMP investigators. Do they have any connections whatsoever to the individuals being investigated?
The CPC did an important report about two years ago that reviewed RCMP investigations and looked at this question of impartiality. They established a number of benchmarks to look at in terms of ensuring the impartiality of the investigation. That provides a useful framework to help the RCMP and all police services to ensure that in the approach they take when they are placed in a situation of having to investigate themselves, they take as many steps as possible to ensure impartiality and a lack of bias.
On top of all that, for those last two options of another police service or the RCMP being involved, an observer can be appointed. This is an independent observer appointed by, for example, the province or territory, who would have the necessary skill set to understand how investigations are undertaken and who would be able to provide an impartial assessment of the quality, credibility, and impartiality of that investigation. That provides an important tool to make adjustments, if needed, during the course of the investigation. Let's say the Regina Police Service is conducting the investigation of an RCMP member; the observer would have the capacity to contact the chief of police in Regina and say, “This is what I have observed. I have problems with this. It needs to be fixed.”
If, for whatever reason, it's not fixed, the report at the end of the process goes to the provincial attorney general. That is taken into account in going forward with this matter, so there are a number of steps taken to buttress the process of police investigating police.
:
That's an important question, because this is a new element, and it responds to a number of key recommendations, including from Justice O'Connor in his report a few years ago. It takes the level of review of the RCMP to a whole new level.
Essentially what it does is give pretty broad discretion, recognizing the first two points you mentioned that limit that to some degree. But I would argue that the scope and the range of activities they can look at are as broad as everything the RCMP does with respect to their mandate under the RCMP Act, the Witness Protection Program Act, and so on.
Let me speak specifically to the first two points you raised. First, conducting this review will not unduly diminish their ability to review and process public complaints. What that is basically saying is that your core business is public complaints. You need to keep processing those public complaints.
The policy reviews are something you will need to do in the context of your budget. However, what the government has done, in this case, is increase the budget of the agency. You had a base budget in the last several years of $5.4 million annually. It has been increased by $5 million to $10.4 million annually. Now, I should caveat that by saying that they got an increase from Treasury Board over the last few years of about $3 million. Really it's about $2 million more a year, and a big reason for that additional $2 million per year is to conduct these policy reviews. There will be resources available for the policy reviews right from the beginning to allow the agency to do that.
In terms of other review bodies looking at it, it's just a question of efficiency. If you already have another body looking at a matter, you probably don't want someone duplicating that process. That's not to say that the other review body might complete its process and there might still be outstanding questions or other matters this body may feel it appropriate to look at. They may choose to do that at that time.
These are constraints only in the sense that the chair of this new body has to inform the minister. It's not the case that the minister is going to say, “No, I don't want you to do that.” This is an independent body, and the chair will conduct those policy reviews. There is no capability for the minister to say, “I do not want you to conduct review X.” The body will conduct the review.
The RCMP reserve program itself has been in operation since approximately 2004, and it's been run on a pilot basis for the last few years. It is an incredibly useful tool in terms of backfilling vacancies and being able to provide the seniority that sometimes can be lacking, especially in some of our smaller or more remote areas.
The challenge you speak of, the way the program is administered, has to do with a lack of clarity, if you will, between the way the reservists are appointed and a particular statement under the RCMP Superannuation Act. Reservists are right now hired for a period of three years. However, that three years is broken up into periods of six months less a day, and at the end of six months less a day, a reservist is required to take a two-week cessation period.
The idea of that is to ensure there is no mix-up between being appointed under the RCMP Act and then the RCMP Superannuation Act. The RCMP Superannuation Act says that if a person is appointed under the RCMP Act but is not appointed as a member—and this is an incredibly important point, because reservists aren't appointed as members, they're appointed as reservists—they are appointed as an employee in the public service. It becomes confusing in terms of trying to administer the program. If we have someone who has worked for six months plus one day, does that mean they're no longer a reservist but instead they are now a public service employee?
This lack of clarity has caused issues in terms of the administration of the program. It does impact our ability to deploy for greater than six months. There is also the question, if someone were to work for six months plus a day, of whether that would have an impact on their benefits, for example, pension allotments or entitlements.
There is some clarity required around that particular question.
[English]
You will have a great opportunity when you hear from the commission itself, the current CPC, I believe later this week or soon, about some of their statistics on complaints.
This regime builds on the existing regime, and under both regimes, in the first instance, when an incident happens and a member of the public wishes to make a complaint, they can go through three doors: they can complain directly to the RCMP; they can complain to the Commission for Public Complaints; or they can complain to the provincial complaint body. In doing that, although there are three means by which the complaint is submitted, normally in the first instance the RCMP itself would investigate that complaint. There may be exceptions to that depending on the nature of the incident, but in the vast majority of cases the RCMP would conduct the investigation.
The rationale behind that is that many of these complaints are fairly minor. I guess that would be one way to describe them. There might be concerns about the attitude of the officer involved, or there might have been a misunderstanding regarding the number of investigative resources that would be applied to the case. Often through a discussion directly with the RCMP and the RCMP member involved, the matter can be resolved informally and both parties can walk away quite satisfied that they understand what happened and they're comfortable with the outcome.
The first instance is to have the RCMP investigate the matter. What happens in that figure you were referring to is that in 85% of all those instances where the RCMP reviews the matter, the individuals involved are satisfied with the outcome and there is no role for a further review by the independent complaints investigation body.
In the 15% left over, the complainant is told that if he's not happy with how this matter was handled, he has the option of having this matter investigated by the independent complaints review body, and they will conduct that investigation. They can do the investigation directly. They can ask the RCMP to do further investigation around it, or they could do both. The goal is to get all the information relative to the matter, and if they, in conducting their own independent investigation, reach a different conclusion from the one the RCMP reached, they will convey that to the RCMP and say here's the interim report on this matter—here's what they found; here's what they recommend. The Commissioner of the RCMP will have an opportunity to consider that interim report.
In the vast majority of cases, the commissioner will accept the independent findings and recommendations of the independent body and will proceed on that basis, which often involves some kind of corrective action, for example, training of an RCMP member, reminding him or her of certain policies and procedures to follow in certain instances. The RCMP will typically be in concurrence with the findings and recommendations.
If, in those rare instances, the commissioner feels on some basis that he does not agree with those independent findings and recommendations, he has the opportunity to provide his views in writing back to the independent review body prior to its finalizing the report. The independent review body will take those comments and input from the commissioner into account and may find that adds some useful information for the investigation, or it may find that it doesn't add useful information and it may continue to believe that the matter needs to be handled in a certain way; it will convey that through its findings and recommendations, and that final report will go to the commissioner, to the minister, to the RCMP member directly involved, and to the complainant directly involved.
By going to the minister there is the opportunity to make the minister aware, given that he is accountable for the force and can direct the force on any issues that in the minister's view are cause for concern. It is a check and a balance on the powers and authorities of the commissioner, aided by independent findings and recommendations from the review body.
I'll keep my answer in the discipline realm.
If you have an allegation of misconduct against a member presently, and the appropriate officer, which is the commanding officer of the division, is seeking dismissal—they think that's the correct sanction that ought to be imposed—it's a requirement, under the current act, that there be an adjudication board held. There are three officers. They will hear the evidence. If they find that the misconduct is established, they will then turn to what sanction they would impose.
In the instance where the board says they are not going to fire the member, the manager doesn't have an ability to appeal, and it is effectively terminated there.
If the board does dismiss, and the member appeals, it goes to the ERC. Then it would go to the commissioner, who would have the opportunity to make a decision on whether he or she agreed with the board. Or maybe if the ERC said they thought termination was too harsh, the commissioner ultimately would then have the ability to make the decision.
That's in the area of dismissal.
If you're talking about performance-related matters, there is a legislative process under the RCMP Act. Again, there is a board involved and a decision is made.
The commissioner is not directly making these decisions. These decisions are coming to him, through the final instance, to make a decision, but it really depends on which process you're in.
I wouldn't view it as a situation where the commissioner is actively going out and saying that he or she is hiring someone and then has the ability to necessarily, in all instances, terminate somebody's employment.
:
Presently, if you were talking about anything that's formal—we're talking about formal discipline and you're asking for more than a reprimand or a one-day forfeiture of leave—it's required to go to a board. For informal and formal discipline, depending on the nature of the case, it would probably average about one year to do the investigation. Bill C-42 will address that. The commissioner will have the ability to make rules around timelines and other matters relating to investigations.
Moving into the next step, which is the formal adjudication board, the data shows we're averaging between 12 and 16 months. The members said, “We think you did something bad. Here's your notice. We're taking it to a hearing.” It's about 12 months before that matter is actually going to get to a hearing, so you're already up to about 24 months in total.
If the discipline that's imposed upon the member in the formal process is appealed to the commissioner, it would go to the external review committee. At present, it's two years for the external review committee to review a matter. It then goes to the commissioner, and there's been anywhere from six months to a year to do that process. Since Commissioner Paulson has come in, we've managed, through his dedicated attention to these matters, to get the timeline for formal discipline appeals down.
Under Bill C-42, the vast majority of these matters, which are below dismissal, are not going to require a formal adjudicative process.
Recurring in any reports that we've had is that it's too legalistic, too formalistic, and it's seen purely through a lens of a legal process. Rather than trying to deal with the performance and conduct that's at issue at the local level—they're going to have to have checks and balances involved in that process—the idea is that we should be talking about a matter of days or weeks, not months and years.
I'd say that roughly 98% of our discipline should be dealt with through the more informal process that will be proposed under Bill C-42. It creates the framework around which, through rules, regulations, and policies, you can create a process that can adapt to the changes.
It relates to what Mr. Potter was talking about when you're trying to resolve public complaints. There is an ability to marry these things together. We'll be required to inform public complainants about what discipline is going to be imposed.
I can see managers having the confidence now because they know that on the one hand they have the ability to resolve public complaints; on the other hand, if there's performance or conduct that's at issue, they can resolve that as well. It's not leaving their hands and going into a formal process where they have no control, and really it's not dealing with the conduct at the level that it should be.
There currently is a code of conduct, you're correct. We intend to modernize and upgrade what we have as a code of conduct, so it's more relevant to how human resource processes have progressed.
In terms of managers being able to manage, as I've explained, the difficulty is that if you're looking for more than a reprimand, essentially you don't have an ability to deal with that. It's off into a formal process that's going to be occurring outside of your immediate area. So the notion that you're managing it...yes, we have managers who are managing, but the problem is once it gets to a certain level, it's out of their hands. If we bring it down to the most appropriate level, that allows them to effectively deal with it. If there are performance issues, if there are wellness issues and other things, it's really keeping it where it ought to be, and not pulling a piece of it away and they're caught in this timeline where it could take months or years for a matter to be resolved. Again, if it's not a dismissal matter, I think most people would accept that it's more appropriate that it be dealt with at the lowest and most appropriate level in the organization, which is your direct manager.
In terms of appeals, an appeal process will be created. One of the things we're anticipating is that any decision to impose measures will be subject to an appeal. Right now we do have certain disciplinary actions that are not subject to grievance or appeal, such as counselling or recommendation for transfer, but we're proposing that all those things be subject to appeal and it will be one level. But if you're going to be getting a financial penalty of more than one day because of the importance of having externality and independence, it will go to the external review committee and they can have a look at that.
In terms of cause, we've now moved out of the dismissal context. We're into other administrative processes for discharges. Processes will be created, which this legislation would enable us to do. An example of a cause would be if you're an employee or a member and you lose your security clearance. There's a reason you lost your security clearance. That would provide cause. But we currently don't have the authority to dismiss an employee because they don't have a security clearance. That's an example of where we'd modernize a process to recognize that it's not just for any reason; there's a specific reason that has to be established why they don't have a security clearance. That's a requirement for employment, and that would be a grounds for cause.
:
It depends on who the parties are. If the respondent is an RCMP officer, regular member or a civilian member, the RCMP Act has to be considered and applied in terms of the conduct. If it's a public servant who is the respondent, it's generally the Treasury Board policy that applies. If it's between two public servants, it's clear that the Treasury Board policy applies.
That's one of the considerations—who is making the allegation and who is responding to the allegation—in determining which process you are going to be under.
If you are under the RCMP process, I am aware there is dissatisfaction from the public service employee side. There is a view that there should be more active participation and disclosure of certain information as part of that investigative process. That's not presently provided for under our code of conduct investigations for regular and civilian members, and that causes some tension in that regard.
I see quite a few of these in my current capacity. You try to work with the spirit and intent of the Treasury Board policy, which is trying to resolve this in the workplace, but under the statute it says that if it appears there's a contravention of the code of conduct, that's the process you're supposed to be using.
You're trying to balance the rights and interests and responsibilities of the parties involved, but it can become difficult if somebody wants to use a code of conduct and insists that is how it has to happen. It closes the door to dealing with the other complaint more informally.
Now that's not to say there aren't attempts to mediate and resolve issues, but there are these kinds of jurisdictional issues that arise in the investigative process. You can go all the way through the Treasury Board process and not be successful in resolving it, and then you're triggering a code of conduct process. People will say, “Okay, I gave a statement on that. What are you doing with that? Where does that apply? I didn't know you were going to use that here.”
It's a complexity that doesn't have to exist. The rule-making authority that will be granted to the commissioner will allow him to meet the needs of Treasury Board and respectful workplaces that are trying to resolve conflicts, while at the same time making sure there's some rigour in making sure the member's interests are protected and dealt with properly.
:
Good afternoon, Mr. Chair and ladies and gentlemen. We thank you for the opportunity to appear before your committee today on behalf of the 24,000 regular and civilian RCMP members who serve across Canada and internationally, to provide their perspective and input.
My name is Abe Townsend. I am in my 32nd year of service. With me is Mike Casault, in his 23rd year of service. We are the national executive of the staff relations representative program.
During my service I have served in four different provinces and two territories. My duties have included general duty policing, federal policing, and major crime investigation. My last uniformed posting was as a detachment commander in Yarmouth, Nova Scotia, at the rank of staff sergeant.
I have been an elected representative since 2004. Mike has served in the province of British Columbia, and was elected to represent our members in 2008.
The staff relations representative program is the non-union labour relations program for all 24,000 members of the RCMP. The program is authorized by law, and is the officially recognized program of representation on all issues that affect the welfare and/or dignity of RCMP members.
Our program is comprised of 42 representatives, democratically elected by and from the membership in all territories and provinces. The program has its own constitution, attached to this submission as appendix A, and a formal agreement with the commissioner, attached as appendix B.
We welcome the parliamentary hearings and your consideration of our feedback in relation to Bill . We were not consulted during the drafting of Bill . We look forward to providing this committee with our members' perspectives as well as updates on the outcomes of your work.
While there are some aspects of Bill that we appreciate, we have some fundamental areas of concern that we wish to express on behalf of our members.
We have heard much criticism directed towards the present RCMP Act and the need to change. Unfortunately, there has been no reference to the report of Mr. Justice René Marin. His report was the framework for the RCMP's current disciplinary and grievance system. I have attached as appendix C the historical overview taken from the RCMP Internet site. The emphasis was to have discipline administered and dispensed at the lowest possible level. The 1988 act brought into play procedural fairness and natural justice. Emphasis was on identifying weaknesses and unacceptable behaviours and taking appropriate remedial action—corrective action versus punitive action. Grievance rights and processes were introduced, as was the external review committee.
We believe some managers at all levels of the organization did not do what the act encouraged and empowered them to do, and we find ourselves here today.
Accountability is no stranger to our members. As peace and public officers, they are accountable to the rule of law. Accountability touches every aspect of our job. The vast majority of our members meet and exceed these expectations.
Our members execute their duties realizing the dangerous and conflict-ridden environments in which they serve.
We realize that internal and external review may be the byproduct of honourable service.
Legislation must serve their unique interests as they serve the community.
The present act contains the necessary authorities, but they have not been utilized properly. Managers at all levels have not been held accountable for their behaviour, action, and inaction. What will change with new legislation?
Unfortunately, I can speak of instances where internal processes of the RCMP have failed individual members, and by extension the force and the public we have sworn to serve. I can speak of a young member, a single mother who endured almost a decade of suspension, only to be reinstated, after appeal, by Commissioner Paulson. I venture to say that this female member, under the provisions of Bill , with the stay provision removed from the act, would no longer be employed with the RCMP. Where is the fairness?
I can speak of a female member who alleged sexual harassment and faced roadblock after roadblock in seeking resolution.
I can speak of the file of a member who was accused of sexual assault. This member was investigated by the RCMP and criminally charged. Only later was the truth revealed: there was no assault. In the meantime, the RCMP member's career and personal life were in ruins. Yes, there was a public apology by the attorney general of the province involved, but it was too late. What would happen to this member under Bill ?
There has to be protection for such instances. We have far too many cases of harassment left to drift aimlessly, and we have conduct investigations and decisions associated with those investigations that are delayed beyond reason—delayed by bureaucratic obstructions and avoidance. It has been my experience that these failures were not always due to faults with or restrictions imposed by the present act.
My purpose is not to focus on failure. The vast majority of our members will not come into conflict with the RCMP Act during their career—the majority will serve with distinction without internal challenge—but for the few who do, we must have legislation that will serve in a fair and constructive manner. Our managers must be trained to properly utilize the authorities available.
There has been much debate in relation to the RCMP culture. Millions of taxpayer dollars have been spent to examine the RCMP on many important issues. This is an investment in our national police force. My concern is not with the investment, but with our ability and desire to pay real attention to the recommendations of those various reports: the Brown task force and the reform implementation committee reports, the reports of Dr. Linda Duxbury, or the RCMP Pay Council report on discipline. All are reports having been made with the goal of advancing our organization.
As we focus on discipline, I am left to wonder: if the recommendations of the pay council report on discipline had been implemented when written in 2005, would the criticism and frustration we now realize have been avoided?
Bill will see the commissioner given broad authority to make rules. These rules must have accountability on outcome. We look forward to working constructively in building these rules. Principles of procedural fairness and natural justice must remain. The legislation and the rules that follow cannot simply be about dealing with the very few bad apples, but must nourish the entire orchard. We must invest through learning and development.
I would like to draw specific attention to areas of the proposed legislation. The first is grievance procedures and discipline appeals. In Bill , the commissioner makes the final decision on grievance procedures and discipline appeals.
On behalf of our membership, we believe grievance procedures and appeals for discipline cases should be expedient and impartial. Further, the decision-maker should have expertise and broad experience in labour relations. We have attached appendix D for your consideration.
With regard to the code of conduct, we commend the authors of this act for their proposed section 36.2. As a member, as a former detachment commander, and as a representative, I believe that if we adhere to these principles, we will find success.
With regard to the authority under the code of conduct for investigation of warrants, our members have expressed fear and apprehension in relation to this new authority provided under proposed section 40.2 of Bill . We urge your consideration: remove or amend this section as suggested in our appendix E.
On conduct boards, under proposed section 43 of Bill , we believe conduct boards must be reserved for the most serious of alleged breaches of the code of conduct. In these cases, legislation should clearly articulate the implicit right to an oral hearing wherein evidence can be examined and cross-examined.
In relation to the CRCC, the enhanced authorities provided to the CRCC in Bill will only serve to reassure the Canadian public, in their eyes, of our members' accountability.
We invite external review; however, we must express our concern and objection in relation to the escalation of powers provided to the CRCC in proposed section 45.65, specifically the authority to order a statement during an investigation. While there are protections offered, we believe these protections against self-incrimination do not go far enough. We have similar concerns with proposed section 45.56.
In concluding my opening statement, I wish to make one final comment.
The “category of employee” issue has been with us for several years. We would also like to see a time when all employed in the RCMP are just that—employed under the authority of, and accountable to, the RCMP Act.
Thank you.