PACP Committee Report

EXTERNAL REVIEW

Given their significant powers, it is important that the police are subject to high standards of propriety. When there are questions or concerns about the behaviour of members of the RCMP, those concerns must be investigated in a timely and independent fashion. However the criminal investigation in this case was neither timely nor independent. More effective independent review mechanisms would help to ensure that RCMP members are held accountable for their actions.

Criminal Investigation

In June 2003, Commissioner Giuliano Zaccardelli shut down a criminal investigation begun by “A” Division and ordered an internal audit into allegations of wrongdoing in the administration of the pension plan. (Staff Sergeant Ron Lewis told the Committee that Commr Zaccardelli had asked him to launch the initial criminal investigation, but Commr Zaccardelli denied this claim.) In late October 2003, the internal audit concluded and its findings were presented to management. The audit states, “[V]arious activities related to pension administration could not withstand the scrutiny of the Canadian public or that of RCMP members contributing to the Pension Plan.”¹ Even though the audit found evidence of significant improprieties, it was not until March 2004, after much persistence by S/Sgt Lewis, that another criminal investigation was launched.

This delay should not have occurred. In his report, David Brown concluded that, “It is clear that the findings of the internal audit group should have led Commr Zaccardelli to conclude that further investigation (whether criminal or internal) was appropriate.”² Moreover, Assistant Commissioner John Spice, the former Ethics Advisor, suggested that if proper procedure had been followed, the criminal investigation would have been started much sooner. He said he had discussions with the Director of Internal Audit, Brian Aiken, and “We went over the fact that should he find anything criminal while doing the audit, he would then suspend the audit and call for a criminal investigation, which was the process at the time.”³

Yet, Commr Zaccardelli did not start a criminal investigation for many months. Further, while two people, Jim Ewanovich and Dominic Crupi, were removed from their positions, no internal disciplinary proceedings were begun, even though it was evident that others were involved in the improprieties. It would not be appropriate for the Committee to speculate as to Commr Zaccardelli’s reasoning for not commencing immediately with internal disciplinary proceedings or a criminal investigation. However, there is at the very least the appearance of an unwillingness to investigate wrongdoing when it may damage the RCMP’s reputation or implicate senior members of the RCMP.

There were problems not only in the timing of the criminal investigation but also with its degree of independence. The Office of the Auditor General concluded that the structure of the investigation made it difficult for the RCMP to respond to allegations that the investigation was not independent and unbiased. Hugh McRoberts described their findings:

We found that the RCMP does not have a policy on the conduct of external investigations of itself. While the RCMP had signed a formal memorandum of understanding with the Ottawa Police Service for this investigation, we noted that in previous investigations it had not. The memorandum with the Ottawa Police Service was signed 10 months after the start of the investigation. We found that the organization of the investigation, with the lead investigator reporting to an RCMP assistant commissioner, compromised the appearance of independence. The RCMP justified this arrangement as being the best way to provide administrative support to the investigation, and the Ottawa Police Service told us it had not been directed or influenced by the RCMP. Our recommendation was that the RCMP develop and institute a policy for such investigations to ensure that future investigations are independent in both substance and appearance.⁴

David Brown went even further than the Auditor General. He said, “The Auditor General has already concluded that the OPS investigation lacked the appearance of independence. With a broader mandate and different resources, I am prepared to go beyond that and state that the OPS investigation was not independent.”⁵

The Committee agrees with Mr. Brown’s conclusions. While the criminal investigation was purportedly led by the Ottawa Police Service (OPS), it quickly grew and was composed primarily of RCMP officers. It also relied upon the RCMP for administrative support. Assistant Commissioner David Gork of the RCMP was assigned to act as the administrative liaison for the investigation. In order to help clarify the relationship between the organizations, the RCMP and the OPS signed a memorandum of understanding (MOU), which stated, “Inspector Paul Roy will be assigned as Case Manager to the RCMP Investigation. For the duration of the investigation, Inspector Paul Roy will report directly to A/Commissioner D. Gork.” This statement seems to undermine the claim of independence. Mr. Brown wrote in his report that he was told this was a typographical error. A/Commr Gork was quite dismissive about the MOU in general. He stated:

I was not involved in the writing of that MOU. That was done by legal services. I did not see that MOU. I did not sign off on that MOU. That MOU was finished almost at the end of the investigation. It had no bearing in reality up until the time when it was signed. By that time, I was packing my bags and heading off to Lyons.⁶

If this is true, then the MOU was essentially useless and merely an administrative cover. It certainly did little to ensure that the investigation was independent.

Notwithstanding the muddled lines of authority outlined in the MOU, Insp Roy stressed that he was in charge of the investigation. He said:

I would like to emphasize that I was in charge of this investigation and reported to Chief Bevan, not to anyone in the RCMP. I only contacted Assistant Commissioner Gork when I had administrative matters to deal with. Nobody from the RCMP, at any rank, or indeed from anywhere else, attempted to influence me in any way.⁷

A/Commr Gork also stressed that he was not involved in the investigation itself. He said, “At no time did I direct the investigation or have access to information for purposes of subverting a thorough and diligent investigation.”⁸ However, S/Sgt Frizzell claimed that he argued with A/Commr Gork about the mandate of the investigation. A/Commr Gork strongly denied any involvement in the investigation.⁹ (The Committee was unable to determine the extent of A/Commr Gork’s involvement in the investigation, which should be more fully investigated.)

Regardless, having RCMP members on an investigation led by an outside police force resulted in complex lines of authority. This came to a head at the end of the investigation when it was decided that an order needed to be given to S/Sgt Frizzell to end his investigation into the insurance plan. While Insp Roy was the lead investigator, S/Sgt Frizzell was under the authority of A/Commr Gork. As the MOU stated, “RCMP [members] shall have supervisory control through A/Commr Gork and be empowered to provide such specific directions as may be necessary for carrying out the purposes of the Investigation.” Consequently, Insp Roy had to advise A/Commr Gork, who was at this time in France, on the proper course of action.

This complicated reporting relationship was exacerbated when Deputy Commissioner Barbara George started calling senior RCMP officers to complain about S/Sgt Frizzell’s behaviour with respect to one of her employees. S/Sgt Frizzell, believes that D/Commr George wanted him removed for investigating ongoing problems with the insurance plan, which was under her direction. It is unclear the extent to which D/Commr George’s involvement led to the written order for S/Sgt Frizzell to cease his investigation, but it is clearly problematic to have RCMP members investigate matters involving senior RCMP officers. Moreover, several officers contacted by D/Commr George testified that she was seeking to have S/Sgt Frizzell removed from the investigation.

One perspective is that the investigation was shut down early in order to ensure that certain issues were not looked at. Chief Superintendent Fraser Macaulay told the Committee:

The truth of the matter is that the investigation was shut down prematurely, preventing the investigators from being able to link the numerous gains, promotions, performance pay, hiring of relatives, kickbacks, and prospects of future consulting work to the abusers of the pension fund.¹⁰

On the other hand, it could be said that the investigators themselves were not impartial because they were looking into their own pension and insurance plans. The Chair of the Commission for Public Complaints Against the RCMP, Paul Kennedy, discussed the difficulty of having members of the RCMP investigate their own force:

There’s a two-edged sword, though, with that particular investigation. I think an officer has to be impartial, and it’s hard to be impartial when you’re investigating what you believe is a potential fraud against your own insurance or pension scheme. That’s why it’s always best to have someone outside who is acting as a police officer and not acting as an employee of an organization. ... There were a number of flaws, I think, that hurt the impartiality of that investigation.¹¹

In order to sort out the issue of the independence of the OPS investigation, Mr. Brown recommended that the Ontario Provincial Police (OPP) be asked to conduct a review of the investigation. Mr. Brown suggested that the OPP pay particular attention to whether the appropriateness of certain activities surrounding the insurance plans has been fully analyzed. The Minister of Public Safety, Stockwell Day, asked the OPP to conduct this review, but it is not clear when the review will be completed, or whether its results will be fully public.

Notwithstanding the results of the review by the OPP of this particular investigation, the RCMP needs to improve its process for conducting internal investigations. The Auditor General recommended that the RCMP develop a policy for the conduct of these investigations. While the Committee supports this recommendation, it is concerned that a policy is only as good as the willingness to follow the policy, and as this whole case indicates, there were many policies ignored or broken by the RCMP in its management of the pension and insurance plans. When things start to veer off track, it is necessary to have an external, corrective mechanism to ensure that things return to their normal course.

Civilian Review

In a democratic system it is essential that every public institution be answerable for its activities. This is especially important for police forces, as they have substantial powers that can profoundly affect the lives of Canadians. While the Commissioner of the RCMP is accountable to the Minister of Public Safety, who is politically responsible for the RCMP in Parliament, the RCMP have considerable operational independence in order to ensure that the police are not subject to political direction when conducting their investigations. However, it is important that those investigations are conducted appropriately — in conformity with the law and standards of propriety.

The conduct of investigations is especially important when the police are investigating the police, because there is a strong potential for a conflict of interest and the perception of bias. In order to maintain the public’s trust and confidence in their police force, investigations of allegations of wrongdoing by members of the force must be independent and above reproach. Unfortunately, as the foregoing discussion makes evident, the investigation into possible wrongdoing in the administration of the RCMP’s pension and insurance plans had numerous flaws, which led Mr. Brown to conclude it was not independent. It appears that former Commr Zaccardelli was reluctant to even have a criminal investigation.

In order to provide civilian oversight of police activities, most police forces are subject to review by independent bodies. In the case of the RCMP, this is the Commission for Public Complaints Against the RCMP (CPC). Its mandate is to review public complaints about RCMP member’s conduct. The current Chair of the CPC, Paul Kennedy, told the Committee that his organization could have examined the conduct of this investigation. He said:

Clearly, what would have been within our purview, even under the existing legislation, is the criminal investigation. In other words, once it got by the internal audit and there was a decision to do a criminal investigation, whether or not it unfolded and whether or not the investigation that unfolded was actually independent is something we could have looked at — an allegation of systemic cover-up, or something like that. That's where we would have gone in.¹²

However, the CPC did not receive a complaint about the investigation noted above. Under its current mandate the CPC can only conduct reviews that are initiated by a complaint. There is also no provision for the Minister to ask for a special inquiry of a report. Mr. Kennedy noted that the mandate of CPC is quite out of date. He said, “What struck me when I ended up in the job was that in the whole structure of how we have improved public safety, what was remiss and left out was clearly the review mechanisms, and they were quite archaic.”¹³

Mr. Kennedy is not the only one who has identified shortcomings in the mandate of the CPC. The Office of the Auditor General noted that the CPC does not have the same level of access or ability to conduct reviews as other independent review bodies of security and intelligence agencies.¹⁴ For example, the Security Intelligence Review Committee (SIRC) examines whether the Canadian Security Intelligence Service (CSIS) is complying with legislation, policy and ministerial direction in the performance of its duties.¹⁵ SIRC conducts in-depth reviews of CSIS activities to ensure that they comply with the CSIS Act, policy and ministerial directives. SIRC also receives and inquires into complaints by any person about any action of CSIS. SIRC is given access to such information, reports and explanations as it deems necessary for the performance of its duties and functions.¹⁶ No information, other than a Cabinet confidence, may be withheld from SIRC on any grounds.¹⁷ The SIRC may summon witnesses and compel them to testify, compel the production of documents, administer oaths, and receive and accept evidence, whether or not that evidence is or would be admissible in a court of law.¹⁸ SIRC may also, on request by the Minister or at any other time, furnish the Minister with a special report concerning the performance of its duties and functions.¹⁹ The SIRC submits an annual report on its activities to the Minister, which is tabled in Parliament.

The powers of the CPC, however, are much more limited. The Office of the Auditor General noted that the legislative powers of the CPC fall short of the explicit powers given to the SIRC, which can access all information held by the CSIS and request explanations from staff; the CPC, on the other hand, only has access to “relevant material.” Unlike CSIS, the RCMP is not subject to reviews aimed at systematically determining its level of compliance with the law and ministerial direction. The Office of the Auditor General expected that intrusive powers would be subjected to a level of review proportionate to the level of intrusion.

Mr. Kennedy has proposed a new legislative model for enhanced review of the RCMP.²⁰ The new body would, like SIRC, have unfettered access, as of right, to all information, save for Cabinet confidences. It would monitor investigations to ensure their impartiality, investigate matters itself or refer them to another police force. It would make factual findings that are binding, subject to appeal to the Federal Court, and would share its reports with other review bodies and ministers responsible for policing, which is especially important in trying to prevent the repetition of mistakes in the future.

The powers of the new civilian review body would be much more extensive than those enjoyed by the CPC today. It would have subpoena and audit powers, and it would be an offence to obstruct or interfere with its functions. The review body would have a legal role similar to that of public inquiries in that there would be a legal obligation on law enforcement officers to account for their actions but any evidence provided to the review body would not be admissible in any other criminal, civil or administrative proceedings. The review body would also have the power and ability to produce special reports on issues referred to it by the Minister of Public Safety. Mr. Kennedy told the Committee that he has received no response from the government about his proposed legislative changes.

In his inquiry into the actions of Canadian officials in relation to Maher Arar, Justice Dennis O’Connor also concluded that the review powers of the CPC are insufficient.²¹ Justice O’Connor recommended that the government restructure the CPC and expand its role to include national security.²² This new body would be able to conduct self-initiated reviews, similar to those conducted by SIRC with respect to CSIS, for compliance with law, policies, ministerial directives, and standards of propriety. He noted that Australia, Belgium, Germany, New Zealand, Norway, Sweden, United Kingdom, and the United States all have independent bodies that have a self-initiated review capacity. The review body would also have extensive investigative powers, similar to those for public inquiries under the Inquiries Act to allow it to obtain the information and evidence necessary, including powers to subpoena documents and compel testimony. Unfortunately, the government has not clearly indicated whether it intends to implement Justice O’Connor’s recommendations with respect to enhanced review capacity.

While the government may have not yet indicated its view, the Committee strongly believes that there is a need for strengthened review of the RCMP. The reputation of the RCMP is put at risk when investigations of members’ behaviour are not above reproach. Independent, qualified, and transparent review helps avoid the perception or the possibility of a cover-up. The Office of the Auditor General, however, conducts only sporadic audits of the RCMP, and its mandate is limited. The powers of the CPC are simply not adequate. While it can respond to complaints, it does not have sufficient access to information to investigate those complaints fully. More importantly, the CPC is not able to initiate reviews, and it is not designed to probe the policies or professional practices of the force. Such reviews would ensure conformity with law, policy and standards of propriety. Independent review and oversight can help to ensure that investigations are conducted in a timely and appropriate manner, and are free from bias. Consequently, the Committee recommends that:

Recommendation 26

The Government of Canada strengthen the legislative authority of the Commission for Public Complaints Against the RCMP to enable it to conduct self-initiated reviews, as well as to guarantee it the full access to documents and persons that is included in the powers of subpoena.