Vol. 148, No. 26 — December 17, 2014
SI/2014-104 December 17, 2014
ENHANCING ROYAL CANADIAN MOUNTED POLICE ACCOUNTABILITY ACT
Order Fixing November 28, 2014 as the Day on which Certain Provisions of the Act Come into Force
P.C. 2014-1295 November 27, 2014
His Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subsections 87(1), (3) and (4) of the Enhancing Royal Canadian Mounted Police Accountability Act, chapter 18 of the Statutes of Canada, 2013, fixes November 28, 2014 as the day on which sections 2 to 7, subsections 8(1) and (4), sections 9 to 11, 13 and 14, subsection 15(2) and sections 16 to 66 of that Act come into force.
(This note is not part of the Order.)
This Order in Council (OIC) fixes November 28, 2014, as the day on which sections 2 to 7, subsections 8(1) and (4), sections 9 to 11, 13 and 14, subsection 15(2) and sections 16 to 66 of the Enhancing Royal Canadian Mounted Police Accountability Act (the Accountability Act), chapter 18 of the Statutes of Canada, 2013, come into force, pursuant to subsections 87(1), (3), and (4) of the Accountability Act.
These sections amend the Royal Canadian Mounted Police Act (the Act), and make related and consequential amendments to other acts.
In keeping with the Government’s commitment to provide the Royal Canadian Mounted Police (RCMP) and its review and complaints bodies the tools they need to enhance public confidence in the RCMP, this Order brings into force amendments to the Act that will help strengthen RCMP accountability.
The Act has not been significantly amended in over 25 years. Policing requirements, both administrative and operational, have evolved and greater demands have been placed on policing organizations to be accountable for the effective stewardship of their financial and human resources, as well as the provision of police services while upholding public confidence and trust.
The Accountability Act was developed in response to issues and concerns raised by the public, contract jurisdictions, RCMP employees, parliamentary committees, the Commission for Public Complaints (CPC) against the RCMP, and in multiple reports (e.g. A New Review Mechanism for the RCMP’s National Security Activities — Policy Review Report of Justice O’Connor, December 2006; A Matter of Trust: report of the Independent Investigator into Matters Relating to RCMP Pension and Insurance Plans, June 2007; Rebuilding the Trust — Task Force on Governance and Cultural Change in the RCMP, Brown Task Force, December 2007; Conduct becoming: Why the Royal Canadian Mounted Police must transform its culture, Senate Report, June 2013), which called for reforms relating to accountability and transparency.
RCMP members raised harassment concerns in the RCMP and challenged the organization’s commitment to providing employees with a safe, healthy, respectful and harassment-free workplace. The Government pursued amendments in an effort to begin to transform the manner in which the RCMP managed personnel, and to enhance the RCMP’s level of responsibility and accountability. Government support for transformation resulted in the tabling of the Accountability Act on June 20, 2012.
Amendments to the Act, which received Royal Assent on June 19, 2013, and its regulations are being made to help strengthen RCMP accountability in a number of vital areas
- A. 87(1) The RCMP External Review Committee (ERC) will be required to develop and publish service standards and report its performance against them.
- B. 87(3) Modernizing the RCMP’s human resource management, conduct management, harassment complaint investigation and resolution, and grievance processes for members, with a view to preventing, addressing and correcting performance, absenteeism, and conduct issues in a timely and fair manner.
- C. 87(4) Creating the new Civilian Review and Complaints Commission (CRCC) for the RCMP to replace the existing Commission for Public Complaints (CPC) against the RCMP and provide it with enhanced powers. Establishing a statutory framework for the handling of investigations of serious incidents involving RCMP members, which will improve the transparency and public accountably of these investigations.
A. 87(1) RCMP External Review Committee (ERC) service standards
The ERC provides independent impartial review of certain RCMP grievances and appeals of disciplinary, discharge and demotion decisions which are referred to pursuant to the Act and Regulations. Following its review of a referred case, the ERC issues findings and recommendations to the Commissioner of the RCMP, who makes the final decision. The Commissioner is not bound by the findings and recommendations of the ERC but must provide reasons if he/she does not act on them. RCMP members may seek judicial review of the Commissioner’s decision at the Federal Court.
In carrying out its mandate, the ERC ensures that its recommendations are grounded in law, contributes to transparent labour relations processes in which members of the RCMP are treated in a fair and equitable manner, helps to reinforce accountability at all levels, and supports a healthy RCMP workplace. As stated in its 2012–2013 Departmental Performance Report, the ERC has strived to issue findings and recommendations for grievances within three months and within six months for disciplinary, discharge and demotion appeals. Given the backlog of cases that has developed over a number of years, these targets are not currently being met.
To support transparency and program results, the ERC will be required under the Accountability Act to establish, and make public, service standards (e.g. on ERC’s Web site and/or in the ERC annual report) respecting the time limits within which its review of referred files are to take place, as well as specify any circumstances under which those time limits would not apply or in which they may be extended. Examples where the service standards may not be applicable may include: cases awaiting a decision by the Federal Court or another tribunal that could materially affect the substance of the findings and recommendations. The ERC will provide information in its Annual Report to Parliament respecting the ERC’s performance in relation to the service standards.
B. 87(3) Modernizing human resource management, conduct management, and grievance processes
The amendments to the Act provide the RCMP Commissioner with human resource management authorities that are largely consistent with the authorities provided to Deputy Heads in the Public Service while some authorities are unique to the Commissioner. These authorities will help modernize and increase the efficient management of the RCMP workforce, a necessity considering the complex and dynamic environment in which the RCMP operates. In particular, they provide the RCMP Commissioner with increased authorities with respect to staffing, performance management, and general human resource management. The amendments also provide the Commissioner with the authority to establish a consolidated dispute resolution framework with the flexibility to build redress processes through policies or regulations and the authority to establish an RCMP-specific procedure for the investigation and resolution of harassment complaints. An overview of the major amendments resulting from subsection 87(3) coming into force is provided in the following paragraphs.
Human management processes (Part I)
The Commissioner, in contrast to deputy heads and other senior police administrators, currently lacks the authority to make fundamental human resource decisions to effectively manage the organization. The amendments to the Act will address this shortcoming by providing the Commissioner with the authority to discharge or demote members for unsatisfactory performance, reasons other than a contravention of the Code of Conduct, or for the economy and efficiency of the RCMP.
Currently, the Commissioner is also not able to exercise a basic but vital component of organizing the RCMP workforce — the direct appointment of senior managers to the officer ranks (inspector, superintendent, chief superintendent, and assistant commissioner). These are all currently Governor in Council (GiC) appointments. The Act will provide the Commissioner with the authority to appoint persons to the rank of officer, which will include the authority to demote or discharge these appointees, up to the rank of Deputy Commissioner. Deputy Commissioners will remain GiC appointments due to the nature and role of their responsibilities, and in recognition that they comprise the pool from which the Commissioner selects his acting Commissioner during his absence.
The Act will also include a new authority for the GiC to designate officers to serve as commanding officers in RCMP divisions. Only the GiC may approve or revoke a designation of a commanding officer, based on a recommendation from the Minister of Public Safety, who in turn receives a recommendation from the Commissioner.
Of significant importance are the amendments that will facilitate the timely and effective prevention, investigation and resolution of harassment issues, and that will address the serious concerns that have been expressed by RCMP employees and the public. The Act provides the Commissioner with the authority to establish a single, seamless and comprehensive investigation and resolution process for application to harassment complaints against members that will overcome current structural impediments to providing timely and consistent responses. New Commissioner’s Standing Orders (CSOs) will set the rules and establish the process for managing and responding to harassment complaints, and will provide increased involvement and rights for complainants throughout the entire process.
Grievance process (Part III)
Included as provisions under Part III of the amended Act are specific rule-making authorities providing for the establishment of a single dispute resolution framework capable of addressing almost all grievances, allowing for consistency, fairness and efficiency in how the framework is applied. The authority to recreate many of these procedures under rules will be based in new CSOs specifically established to manage grievances and appeals for all processes provided for throughout the Act. The new CSOs will replace the approximately 18 different dispute resolution processes or sub-processes that were in the Act and the Royal Canadian Mounted Police Regulations, 1988.
Under this integrated process, existing disjointed appeal and redress processes will be handled through the same administrative structure and staff, and reviewed by impartial and autonomous full-time adjudicators.
Front-line managers will be able to focus on the prevention and early intervention of workplace issues and will be supported by a professionalized informal conflict management system that the Commissioner must establish under the provisions of the amended Act. More of an emphasis will be placed on the resolution of disputes through discussion and dialogue, as opposed to the former automatic referral process to a third party for decisions.
Conduct process (Part IV)
The RCMP conduct process will be established through a combination of provisions contained in the amended Act, new CSOs on conduct, and policy documents. The Royal Canadian Mounted Police Regulations, 2014, will also continue to provide vital support to the new conduct system by setting out the Code of Conduct applicable to all RCMP members. Amendments to the conduct system have been built on a platform of professional responsibility and accountability, clarifying the manner in which members are responsible for the establishment and maintenance of good conduct in the RCMP and the means through which RCMP management can be held accountable in administering and responding to member misconduct.
The amendments to Part IV of the Act address long standing concerns identified by stakeholders such as the delays in resolving conduct issues, and limitations on the types of measures that may be imposed, and enable the RCMP to put in place a fair and efficient system which focuses on addressing conduct issues at the most appropriate management level. Conduct hearings will be reserved for addressing the most serious of misconduct cases where dismissal is sought. The new conduct regime will have a broader range of measures available allowing for more flexibility in tailoring a response suitable to the context and nature of the misconduct under consideration with a focus on the needs of the subject member, the public and the RCMP. The system will require a more educative and corrective response to cases of misconduct leaving the imposition of serious measures, such as forfeiture of pay or dismissal, as measures of last resort for serious breaches of the Code of Conduct.
The Commissioner will be granted the authority to designate any person with the appropriate competencies to be part of a Conduct Board convened to address serious misconduct cases where a member’s dismissal is sought. While respecting fairness requirements, the Conduct Boards will be expected to resolve cases as informally and expeditiously as possible. In contrast with the existing hearing process, this change will result in more timely adjudication of conduct issues, creating operational and administrative efficiencies.
In all cases, the Commissioner will be the final level of appeal and will be accountable for the oversight and implementation of the new process.
Categories of employees
The Accountability Act contains a mechanism to deem certain members as being persons appointed under the Public Service Employment Act. This section has been in force since Royal Assent in June 2013, and may be utilized at a time to be determined by the Treasury Board. Once deeming occurs, these newly appointed employees could benefit from a wider range of employment opportunities provided by the public service, and the RCMP would benefit from increased structural and operational efficiencies through the application of a harmonized compensation, pension and benefits package for all civilian employees.
C. 87(4) Creation of the Civilian Review and Complaints Commission for the RCMP (CRCC — Parts VI and VII)
The CPC was created in 1988 as an independent civilian review agency to ensure that public complaints made about the conduct of RCMP members are examined fairly and impartially. The agency makes findings and recommendations aimed at correcting and preventing recurring policing problems. The CPC’s goal is to promote public confidence and excellence in the RCMP through accountability.
In recent years, there have been increasing concerns expressed by the public, provinces and territories (particularly those in which the RCMP is the police of jurisdiction), parliamentary committees, key stakeholders, and in several major reports (e.g. Chapter 10 of the 2003 Auditor General of Canada Report; 2006 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar; 2007 Main Report of the Special Senate Committee on the Anti-terrorism Act) that the existing CPC lacks certain authorities for effective review of the RCMP.
A new public complaints commission, the CRCC, will replace the existing CPC on the coming into force date of November 28, 2014. The CRCC will have the same powers of the CPC along with new powers and authorities to carry out its mandate, including
- Broad access to RCMP information deemed relevant to investigate the matter at hand which will help it perform its duties (the staff of the CRCC will be required to take an oath of secrecy and safeguard against unauthorized disclosure of privileged information);
- Enhanced investigative powers, including the authority to summon and compel witnesses to give evidence;
- The ability to conduct joint investigations and share information with other police review bodies; and
- The ability to conduct reviews of specified RCMP activities to determine the RCMP’s compliance with legislation and regulations, as well as policies, procedures, guidelines and ministerial directives.
In addition to the existing annual reporting, the CRCC will also be required to provide reports to provincial/territorial ministers in contract jurisdictions (e.g. reports on specific complaints and reviews in their jurisdictions and tailored annual reports to jurisdictions that contract the RCMP for its services).
Mr. Ian McPhail, Q.C., was appointed as the full-time chairperson of the CPC on July 14, 2014, with the term ending upon creation of the CRCC. Mr. McPhail has also been appointed as the full-time chairperson of the CRCC for a term of three years upon the CRCC’s creation (i.e. November 28, 2014). The CRCC will be able to make rules respecting the sittings of the Commission; the fixing of the quorum for the performance of its duties and functions; the manner of dealing with matters and business before the CRCC; the apportionment of the CRCC’s work among its members; and the performance of the duties and functions of the CRCC.
Further, the CRCC Chairperson and the RCMP Commissioner may enter into a memorandum of understanding setting out principles and procedures respecting access to privileged information under this section and principles and procedures to protect that information.
The amendment to the Act will strengthen the link between the conduct and complaints systems. Where conduct proceedings arise from complaints, complainants will be provided an opportunity to make representations through the RCMP disciplinary process on the impact the conduct has had on them. In addition, the RCMP will be required to notify the complainant and the CRCC of the progress and outcome of the RCMP conduct proceedings arising from the complaint.
Offences (Parts VI — Civilian Review and Complaints Commission for the RCMP, VII — Investigation, review and hearing of complaints and VII.1 — Serious incidents)
When the CRCC has access to privileged information as part of any of its duties or functions (e.g. to review a complaint), it may not use the information for any other purpose (new section 45.43). Also, it may not disclose this information to anyone other than certain persons listed in new subsection 45.47(2), such as the Minister generally or the Attorney General if the information is required for criminal proceedings. Any breach of this obligation not to disclose will constitute an offence punishable by imprisonment for a term of not more than five years, if the proceeded by way of indictment [new paragraph 50.3(a)]. The head of the CRCC under the Access to Information Act will also be required, in response to a request under that Act, to refuse to disclose documents containing privileged information accessed from the RCMP.
The amendments include a number of summary and indictable offences. For example, failure to appear in order to testify or to produce the documents requested by the CRCC constitutes an offence punishable by a maximum fine of $5,000 or a maximum term of imprisonment of six months, or both (section 50). It should be noted that members, officers and employees of the CRCC or anyone acting on its behalf are not competent or compellable witnesses.
A person who utters threats to a complainant, obstructs another person who is carrying out a power, duty or function under Parts VI to VII.2, makes any false or misleading statement or destroys or falsifies a document relevant to certain proceedings under Parts IV, VII or VII.2 will be liable to a maximum term of imprisonment of five years, if proceeded by way of indictment (section 50.1).
New Statutory Framework for Serious Incident Investigations involving RCMP Members (Part VII.1)
The amendments will increase the transparency of investigations of serious incidents (death, serious injury, or public interest) involving RCMP members.
- The RCMP will be required to refer the investigation to an existing provincial/territorial body which has as its core mandate the investigation of police (dependent on provincial/ territorial acceptance of the referral). Where no such body exists or where the investigative body does not accept the referral, the RCMP will be required to refer the investigation to another separate police service. Where neither of these options is available, the RCMP will conduct the investigation itself.
- Where the RCMP or another police service is conducting an investigation into a serious incident involving an RCMP member, an independent observer may be appointed by the province or the CRCC to assess the impartiality of the investigation.
- Where the RCMP conducts the investigation and no observer has been appointed, the RCMP will report to the CRCC on measures that have been or will be taken to ensure the impartiality of the investigation.
Consequential and coordinating amendments
The amendments contain a number of consequential amendments to existing legislation that will be required in order to implement the new Commission’s powers (e.g. Access to Information Act, Canada Evidence Act, Financial Administration Act, Security of Information Act, Privacy Act, Public Sector Compensation Act, Public Service Employment Act, Public Servants Disclosure Protection Act, Conflict of Interest Act), as well as coordinating amendments relating to the Review of Integrated Cross-border Law Enforcement Operations.
The Government committed to giving the RCMP and its review bodies the tools it needs to strengthen accountability and transparency, which is expected to bolster public confidence in the RCMP.
The RCMP committed to making the legislative amendments a cornerstone of its efforts to reinforce a culture that promotes accountability and transparency. The amendments will significantly strengthen policies and processes of the RCMP to help ensure a safe, healthy and respectful workplace for it employees.
The coming into force is an important milestone on the path to modernizing the RCMP and making it more responsive to the needs and expectations of Canadians, stakeholders and RCMP members themselves.
Associated processes (RCMP Regulations and RCMP Commissioner’s Standing Orders, RCMP operational policies) are also required to fully implement the provisions of the Accountability Act.
Associated statutory instruments
Royal Canadian Mounted Police Regulations, 2014
The Accountability Act resulted in significant amendments to the Act, which have in turn required significant changes to the Royal Canadian Mounted Police Regulations, 1988. Therefore, the Royal Canadian Mounted Police Regulations, 1988, are being repealed and replaced by the Royal Canadian Mounted Police Regulations, 2014. This was necessary to support the implementation of RCMP’s new human resource management and administrative procedures, as well as to streamline RCMP authorities, programs, processes and services.
Commissioner’s Standing Orders (CSOs)
While the Regulations are provided for by the GiC to grant additional authorities and a general framework for the implementation of amended administrative procedures contained in the Act, CSOs are rules made by the Commissioner under the provisions of the Act that provide the more detailed steps that are required to carry out the various procedures. The RCMP is consolidating the current set of rules of 20 CSOs into five new CSOs relating to conduct; investigation and resolution of harassment complaints; grievances and appeals; employment requirements; and general administration.
Extensive consultations occurred between 2007 and 2012 with a variety of stakeholders including the CPC, provincial and territorial ministers responsible for justice and their officials regarding the strengthening of the RCMP public complaints regime and the increased transparency of criminal investigations of serious incidents involving RCMP members. Extensive consultations have also occurred since 2010 within the RCMP, as well as with the ERC and other federal departments and bodies (such as the Treasury Board Secretariat and the Office of the Commissioner of Public Sector Integrity), in respect of the amended and new human resource management processes.
Provinces and territories welcome federal efforts to modernize the RCMP and make it more accountable.
For more information, please contact
RCMP Policy Division
Public Safety Canada
Chief Superintendent Michael O’Rielly
Employee Management Relations Branch
Royal Canadian Mounted Police