Vol. 148, No. 26 — December 17, 2014
SOR/2014-280 November 28, 2014
ROYAL CANADIAN MOUNTED POLICE ACT
Regulations Prescribing an Oath of Secrecy
P.C. 2014-1301 November 27, 2014
His Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subsection 45.45(2) (see footnote a) of the Royal Canadian Mounted Police Act (see footnote b), makes the annexed Regulations Prescribing an Oath of Secrecy.
REGULATIONS PRESCRIBING AN OATH OF SECRECY
OATH OF SECRECY
1. The following oath of secrecy is prescribed for the purposes of paragraph 45.45(1)(a) of the Royal Canadian Mounted Police Act:
“I, _________________________, do swear (or solemnly affirm) that I will not, without due authority, disclose or make known to any person not legally entitled to it any knowledge or information obtained by me in the course of my duties under the Royal Canadian Mounted Police Act. (In the case of an oath other than a solemn affirmation, add: So help me (Name of Deity)).
COMING INTO FORCE
S.C. 2013, c. 18
2. These Regulations come into force on the day on which section 35 of the Enhancing Royal Canadian Mounted Police Accountability Act, chapter 18 of the Statutes of Canada, 2013, comes into force but if they are registered after that day, they come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
All persons working for, or on behalf of, the new Civilian Review and Complaints Commission (CRCC) for the Royal Canadian Mounted Police (RCMP) are required to take an “oath of secrecy,” as prescribed by regulation pursuant to Bill C-42, the Enhancing Royal Canadian Mounted Police Accountability Act. This oath ensures that these persons pledge not to disclose any information that they come across in the course of their duties to anyone not legally entitled to that information.
The Commission for Public Complaints Against the RCMP (CPC) is an independent body created by Parliament in 1988 to ensure that public complaints made about the conduct of RCMP members are examined fairly and impartially. It is mandated to receive complaints from the public about the conduct of RCMP members; conduct reviews when complainants are not satisfied with the RCMP’s handling of their complaints; hold hearings or carry out investigations on complaints; and report findings and make recommendations to the Commissioner of the RCMP and the Minister of Public Safety, with a view to correcting and preventing recurring policing problems.
Bill C-42 received royal assent on June 19, 2013, and allows for the creation of the CRCC to replace the existing CPC and provides the CRCC with enhanced powers to carry out its mandate. The CRCC will have the same powers as the former commission along with new powers and authorities to carry out its mandate, including
- Broad access to RCMP information to help it perform its duties (it will be required to 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 policy reviews to determine the RCMP’s compliance with legislation and regulations, as well as policies, procedures, guidelines and ministerial directives.
CRCC access to privileged information held by the RCMP
Bill C-42 provides the CRCC with the authority to access RCMP information that the CRCC deems relevant to the performance of its duties and functions. The normal practice is that the RCMP hands over information in its control or possession to the CRCC at the request of the Commission.
In terms of privileged information, which is sensitive and requires a higher standard of protection, the Commission will have access to such information if it is both relevant and necessary to the work of the Commission. An objective test regarding relevancy and necessity will be applied to determine access. Examples of privileged information include solicitor-client, informer, special operational information under subsection 8(1) of the Security of Information Act, operational intelligence and medical information about RCMP employees.
Should there be a disagreement as to whether the privileged information is relevant and necessary, both the Commission and the RCMP would be required to submit their respective positions to an independent third party (the Minister of Public Safety could appoint a former judge or another individual). The appointed person will review the documents in question and provide the Commission and the RCMP with an assessment of whether the information is in fact privileged and whether it is relevant and necessary to the work of the Commission. This assessment will assist the parties in reviewing their initial position regarding disclosure and signal to the parties what the court decision would likely be if the matter was ultimately subjected to judicial review.
Since there are often protracted delays and cost implications associated with appearing before the Federal Court, a mitigation strategy is included in the legislation whereby the CRCC enters into a memorandum of understanding with the RCMP that sets out a protocol aimed at satisfying the concerns of both parties, particularly with regard to privileged information and ensuring that the CRCC is not denied access to information it needs to fulfill its mandate.
Due to the sensitivity surrounding privileged information and the need to protect this information against further disclosure, safeguards and punishments to ensure its protection have been included in the legislation. One such safeguard involves requiring ministerial appointees (e.g. former judges), as well as staff (members, officers and public servants) of the Commission to take the oath of secrecy.
Membership of the new CRCC
Pursuant to the legislation, the Chairperson is a full-time member and is the chief executive officer who has supervision over and direction of the work and staff of the Commission. The CRCC may also have up to four other members (full-time or part-time), one of whom may be the Vice-chairperson. To be eligible to be appointed as member of the CRCC, the candidate must be a Canadian citizen or a permanent resident. Current and former members of the RCMP are not eligible for appointment. CRCC members will be appointed by the Governor in Council (GiC) for a maximum of five years with the possibility of reappointment, but may be removed for cause at any time by the GiC. Prior to appointing a person as a member of the Commission, the GiC is required to consider the need for regional representation in the membership of the Commission.
To perform the work of the CRCC and support the members of the CRCC, the officers and the employees of the CRCC will be appointed in accordance with the Public Service Employment Act.
Part of the security requirements under Bill C-42 (as prescribed by paragraph 45.45(1)(a) of Bill C-42) is the obligation for every member, employee and officer of the CRCC and every other person acting on its behalf and every former judge (or other individual appointed by the Minister of Public Safety) to obtain and maintain the necessary security clearance from the Government of Canada and take the oath of secrecy as prescribed by regulation.
The purpose of the mandatory oath of secrecy is to ensure that those with access to RCMP information or knowledge (often sensitive and/or privileged in nature) obtained while performing their duties pledge not to disclose or make known any information or knowledge that they come across to anyone that is not legally entitled to that information.
New regulations are being made under paragraph 45.45(1)(a) of Bill C-42 to prescribe an oath of secrecy.
Those taking the proposed oath will swear or affirm the words “I, ______, do swear (or solemnly affirm) that I will not, without due authority, disclose or make known to any person not legally entitled to it any knowledge or information obtained by me in the course of my duties under the Royal Canadian Mounted Police Act. (In the case of an oath other than a solemn affirmation, add: So help me (name of Deity)).”
These Regulations come into force at the same time as the relevant CRCC provisions of Bill C-42 (Part VI dealing with the CRCC, Part VII dealing with the investigation, review and hearing of complaints, and Part VII.1 dealing with the serious incident regime).
The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.
Small business lens
The small business lens does not apply to this proposal, as there are no costs to small business.
The RCMP, the Commission for Public Complaints Against the RCMP and Public Safety Canada have been consulted and support the proposed oath of secrecy regulations.
Given that the CRCC will be granted broad access to RCMP information, Bill C-42 (subsection 45.45(1)) requires every member, employee and officer of the Commission and anyone acting on its behalf, as well as ministerial appointees (e.g. former judges), to obtain and maintain the necessary security clearance from the Government of Canada; comply with all the security requirements under Bill C-42 and the Security of Information Act; follow established procedures outlined in Treasury Board policy, guidelines or directives for the secure handling, storage, transportation and transmission of information; and in subsection 45.45(2), take an oath of secrecy, as prescribed by regulation.
Those referenced above will be required to take the oath of secrecy, thereby swearing or affirming that they will not unlawfully disclose any information made known to them in the course of their duties with anyone not legally entitled to it. Similar oaths are taken by officials of the Canadian Security Intelligence Service and the RCMP due to the classification of the sensitive information they handle. Similarly, since 2006, all persons appointed or deployed from outside the public service are required to take and subscribe to an oath or solemn affirmation similar to the oath of secrecy (section 54 of the Public Service Employment Act).
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