Vol. 150, No. 11 — June 1, 2016

Registration

SOR/2016-101 May 20, 2016

ROYAL CANADIAN MOUNTED POLICE ACT

Regulations Amending the Royal Canadian Mounted Police Regulations, 2014

P.C. 2016-367 May 20, 2016

His Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subsection 21(1) (see footnote a) of the Royal Canadian Mounted Police Act (see footnote b), makes the annexed Regulations Amending the Royal Canadian Mounted Police Regulations, 2014.

Regulations Amending the Royal Canadian Mounted Police Regulations, 2014

Amendment

1 The Royal Canadian Mounted Police Regulations, 2014 (see footnote 1) are amended by adding the following after section 57:

Referral to Victim Services Organization

Definitions

57.1 The following definitions apply in this section and in sections 57.2 to 57.4.

referral information, in respect of a person, means

victim services organization means an organization that

Limitations on disclosure

57.2 (1) In the course of the performance of their duties under paragraph 18(a) of the Act or at common law, a member who is a peace officer may disclose referral information in respect of a person to a victim services organization only if

Disclosure about third parties

(2) In the context of the disclosure of a person’s referral information, the member may disclose to the victim services organization information in respect of any third party who was involved in the crime, offence or other incident, including their identity and presumed location, but only to the extent necessary to effect the referral of the person without endangering anyone.

Informing referred person

57.3 The Force shall make reasonable efforts to ensure that a person whose referral information is disclosed for the purpose of referring them to a victim services organization is made aware of the disclosure.

Non-derogation

57.4 For greater certainty, nothing in section 57.2 or 57.3 is intended

Coming into Force

2 These Regulations come into force on the day that is six months after the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations. (see footnote 2))

Issues

The Royal Canadian Mounted Police (RCMP) provides federal policing services across Canada, and local policing services through policing contracts with 3 territories, 8  provinces, approximately 150 municipalities, and over 600 Aboriginal communities.

Over the years, various instruments such as memorandums of understanding (MOUs), provincial legislation and a National RCMP Victim Assistance Policy (the Policy) have been employed to authorize the RCMP to proactively disclose personal information about a victim who has suffered, or is at risk of suffering physical or psychological harm or economic loss (proactive referral) to victim services organizations (VSOs) that can offer support. Not all of these instruments are utilized in the provinces policed by the RCMP. Where the instruments are utilized, they do not authorize the RCMP to effect proactive referrals to the full range of VSOs in the provinces.

For example, Newfoundland and Labrador, Prince Edward Island and New Brunswick have legislation (see footnote 3) and province-wide MOUs with the RCMP authorizing proactive referrals to VSOs that are government entities (system-based: VSOs administered by provincial governments or police-based). Saskatchewan also has legislation and MOUs authorizing proactive referrals. Saskatchewan’s legislation is not proclaimed and its MOUs are individual MOUs signed between the RCMP and each of the 11 VSOs located in RCMP detachments and managed by non-profit community victim services boards. As a result, proactive referrals cannot be made to other types of VSOs, such as community-based VSOs that exist or could be established in Newfoundland and Labrador, Prince Edward Island, New Brunswick and Saskatchewan, as the case may be.

A number of provinces have not enacted legislation authorizing proactive referrals, in part, because of conflicting views on whether provinces have jurisdiction to enact legislation authorizing the RCMP to make proactive referrals.

In British Columbia, where there are no MOUs or legislation authorizing proactive referrals, such referrals are made under the Policy to victim services organizations located in RCMP detachments. Hence, the RCMP cannot effect proactive referrals to over 40% of the VSOs in British Columbia which are community-based VSOs.

In Nova Scotia, Manitoba, Alberta, the Northwest Territories, the Yukon and Nunavut, the RCMP cannot effect proactive referrals as there are no MOUs or legislation authorizing proactive referrals to community-based VSOs, system-based VSOs, court-based VSOs and police-based VSOs, as the case may be.

Provinces and territories that have contracted RCMP policing services have voiced concerns about the need to develop a framework that will ensure a consistent and uniform approach for proactive referrals across jurisdictions policed by the RCMP, while providing a secure legal foundation on which to ground the making of such referrals. A regulatory framework is required to overcome the barriers that prevent the RCMP from effecting proactive referrals and to ensure compliance with the Canadian Charter of Rights and Freedoms and the federal Privacy Act by setting out clearly the conditions that must be met to justify such referrals.

Background

The RCMP’s authority under the Royal Canadian Mounted Police Act, the Security Offences Act, and the common law includes preventing and investigating crime; preserving the peace and order; protecting life and property; enforcing laws; contributing to national security; ensuring the safety of state officials, visiting dignitaries and foreign missions; and providing operational support services to other police and law enforcement agencies within Canada and abroad.

The Royal Canadian Mounted Police Act incorporates existing common law police powers and duties as the powers and duties of RCMP members. In other words, if a police duty or power such as preserving the peace and protecting life exists at common law, it exists and is incorporated under the Royal Canadian Mounted Police Act. Common law police powers and duties continue to be defined and clarified in judicial decisions rendered by the courts.

The modern justice system, including police services, strives to better meet the needs of victims of crime and to recognize the role that victims play throughout the criminal justice process. As part of this process, provincial VSOs such as the Victim Services Centres of the Department of Justice of Nova Scotia and the BC Centre for Elder Advocacy and Support are available to protect and support victims; to help them cope with the trauma of victimization; and to participate in the justice system as witnesses to detect and hold offenders accountable.

The RCMP members’ duties include assisting victims when doing so is necessary to satisfy existing common law police duties such as preserving the peace, preventing crime and protecting life and property. This may require disclosing key information about a victim to a VSO to allow them to make early contact with a victim to provide needed information and services. As required by operational policy, an RCMP member will first seek to obtain the victim’s consent to disclose their information to a VSO. Where a victim consents to this disclosure, there is no privacy intrusion. However, when there is no consent, under common law an RCMP member may have the power to make a proactive referral where it is necessary to preserve the peace, prevent a crime, or protect a life or property. For example, in the absence of express legislative authority, an RCMP member may have the common law power to proactively disclose information about a victim of domestic violence to a VSO to protect the victim’s life on the grounds that the assailant has grievously assaulted the victim in the past, has recently threatened to harm the victim and remains at large. Additional grounds could include the RCMP member’s belief that there is a risk of physical or emotional harm to the victim and the VSO can assist in mitigating those risks by, for example, finding a temporary women’s shelter for the victim.

However, the legality of the proactive referral under common law will depend on factors such as the risk of harm to the victim, the type of personal information disclosed, whether the assistance of the VSO could mitigate the risk of harm and whether there were other means of mitigating the risk of harm that were less invasive of the victim’s privacy. Similarly, the police common law power to make proactive referrals remains largely undefined in case law. The courts have neither described nor restricted in judicial decisions the conditions under which the RCMP may proactively disclose a victim’s personal information to a VSO.

Legislatively removing barriers that prevent the RCMP from sharing personal information with VSOs without the consent of victims, such as those who are incapacitated or unable to consent under the circumstance (e.g. if they are under the control of an abuser), is a long-standing issue. Facilitating proactive referrals will better protect and help victims, ensure effective criminal justice processes and support the delivery of victim services.

The Federal/Provincial/Territorial (FPT) Ad Hoc Working Group on RCMP Referrals to Victims Services was created to develop options to resolve the issue of barriers to proactive referrals. In June 2012, it presented its Final Report to FPT Deputies Responsible for Justice and Public Safety who approved the following recommendation:

“[That] Public Safety Canada work with the RCMP and consult the FPT Working Group on Victims of Crime, as needed, to draft a Governor in Council regulation as authorized by s.21(1)(b) of the RCMP Act that permits the sharing of information with victim services in compliance with section 8(2)(b) of the Privacy Act.”

Objectives

The Regulations amending the Royal Canadian Mounted Police Regulations, 2014 (RCMPR) will ensure a consistent and uniform approach to proactive referrals across the majority of jurisdictions (see footnote 4) policed by the RCMP, (see footnote 5) while providing a secure legal foundation on which to ground the disclosure of referral information. The Regulations meet the requirements of paragraph 8(2)(b) of the federal Privacy Act and are compliant with the Canadian Charter of Rights and Freedoms for the following reasons. First, the Regulations provide lawful authority for the proactive disclosure of limited personal information under the conditions described therein. Second, the proactive disclosure of personal information to a VSO will be considered a reasonable interference with an individual’s privacy because the Regulations’ safeguards ensure that only a minimum amount of information is disclosed and only in appropriate circumstances. Ultimately, the Government’s objectives of preventing harm to individual victims and of mitigating risks to public safety are likely sufficient to justify such a limited intrusion of privacy.

The objectives of the Regulations are to

Description

The Regulations

This approach authorizes the RCMP to proactively refer the range of individuals whom they currently refer under an MOU, provincial legislation and the Policy. For example, the RCMP could proactively disclose information about a person who was directly harmed by an incident such as an assault and anyone else at risk of harm, either because the person witnessed the incident, or will suffer some kind of harm because the incident involved a parent or other person with whom they have a personal relationship and on whom they rely for support. Information on persons such as neighbours at risk of harm from a similar incident because of their physical proximity could also be proactively disclosed. The Regulations require the RCMP to use reasonable efforts to ensure that a person whose referral information has been disclosed to a VSO is informed of the disclosure.

“One-for-One” Rule

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.

Consultation

The FPT Working Group on Victims of Crime, which includes directors of every provincial victim services, was consulted on the Regulations during a conference call on April 22, 2013. Non-governmental victim organizations and victim advocates were consulted by letter forwarded by electronic mail on June 5, 2013. The vast majority of the provincial and territorial victim services (members of the FPT Working Group on Victims of Crime) and non-governmental victim organizations and victim advocates (members of the National Victims of Crime Advisory Committee) who were consulted in 2013 endorsed the Regulations.

2013 Consultation

Provincial and territorial victim organizations that were consulted include Victim Services and Crime Prevention (Ministry of Public Safety and Solicitor General of British Columbia), Victim Services and Crime Prevention (Solicitor General and Public Security of Alberta), Victim Services (Ministry of Justice of Saskatchewan), Manitoba Justice Victim Services (Department of Justice of Manitoba), Ontario Victim Services (Ministry of the Attorney General of Ontario), Bureau d’aide aux victimes d’actes criminels (ministère de la Justice du Québec), Victim Services (Community and Correctional Services Division, Department of Public Safety of New Brunswick), Victim Services (Court Services Division, Nova Scotia Department of Justice), Victim Services Program (Department of Justice of Newfoundland and Labrador), Victim Services (Department of Environment, Labour and Justice of Prince Edward Island), Community Justice and Victim Services (Department of Justice, Government of Yukon), Community Justice and Community Policing (Department of Justice, Government of the Northwest Territories) and Community Justice (Department of Justice, Government of Nunavut).

Non-governmental victim organizations and victim advocates who were consulted include Drayton Valley RCMP Victim Services, North Saskatchewan Victim Services, Ending Violence Association of British Columbia, St. John’s Status of Women Council, The Men’s Project, MADD (Mothers Against Drunk Driving) Canada, Ottawa Victim Services, the Canadian Resource Centre for Victims of Crime, the Native Women’s Association of the Northwest Territories, the Association québécoise Plaidoyer-Victimes, Priscilla de Villiers (victim advocate) and Wilma Derksen (victim advocate).

Certain organizations expressed concern that the Regulations do not distinguish between situations in which a victim is unable to consent and those in which a victim has expressly refused consent. The organizations added that overriding a victim’s refusal to share personal information with a victim services organization may undermine the victim’s trust in the criminal justice system and have a chilling effect on the victim’s willingness to call upon or collaborate with the various components of the system.

Concern was also expressed that the Regulations are too restrictive. In one organization’s view, victims incapable or unavailable to consent should be proactively referred whether or not the proactive referral will prevent a breach of the peace, a crime, loss of life, or physical or emotional harm. Another organization added that, in its view, the RCMP should be required to inform a victim of the disclosure of personal information resulting from a proactive referral.

With respect to the first concern, physical or emotional harm or economic loss or the risk of such harm or loss (rather than the distinction between victims who are unable to consent and those who refuse to consent) may be among the conditions that must be met to effect proactive referrals in a manner that is compliant with the Canadian Charter of Rights and Freedoms. However, the distinction between victims who are unable to consent and those who refuse to consent is addressed in the RCMP’s Operations Manual, which will be updated to reflect the Regulations.

With respect to the concern that proactive referrals could cause victim distrust of the criminal justice system and have a chilling effect on their willingness to call upon or collaborate with the various components of the system, the Regulations aim to prevent victims such as those under the control of an abuser from feeling isolated and, as a result, doubly victimized. Victims might feel even more isolated if they are not informed about the resources available to them in the criminal justice system or the status of the police investigation or the court case concerning them. The objective of the Regulations is to facilitate access to information about assistance and services to victims in a timely manner. Thus, victims who receive relevant information about the services they require from the various components of the criminal justice system should have a better understanding of how the system works and should be willing to avail themselves of their services and cooperate with these components — and by the same token feel less isolated. With regard to the concern that the Regulations are too restrictive, the proactive disclosure of a victim’s information to a VSO solely on the grounds of incapacitation or unavailability to consent will likely enhance the risk of non-compliance with the Canadian Charter of Rights and Freedoms.

With respect to the requirement to inform a victim of the disclosure of personal information resulting from a proactive referral, the operational policy requires an RCMP member to advise the victim at the scene of the incident, crime or offence that the victim’s personal information will be disclosed to a VSO in the course of a proactive referral. Where the RCMP is unable to advise the victim of the proactive referral at the scene, the RCMP will make reasonable efforts to ensure the victim is informed of the disclosure of personal information. The RCMP will work with the provinces to develop a procedure that provides that, in the absence of a notification to the victim of a proactive referral by the RCMP, the VSO which contacts the victim as a result of a proactive referral will advise the victim of the disclosure of personal information.

Concerns and recommendations of the Office of the Privacy Commissioner of Canada relating to the 2011 Privacy Impact Assessment for the RCMP Victim Services Program and the two components of the Program, namely the Policy and MOUs employed to authorize the RCMP to disclose the personal information of a victim to provincial government VSOs, were also taken into consideration in the drafting of the Regulations.

The Federal Ombudsman for Victims of Crime also endorsed the Regulations.

2014 Consultation

The Regulations were published in Part I of the Canada Gazette on February 15, 2014, followed by a 30-day comment period. Ten written representations were received. The majority of organizations and persons who made representations endorse the Regulations.

One person expressed the concern that referral information provided to VSOs under the Regulations is insufficient to enable victim service workers to adequately assist victims. While referral information is limited to ensure consistency with the Canadian Charter of Rights and Freedoms, it is sufficient to allow a VSO to contact a victim and offer assistance and services. If the victim accepts the offer, the VSO worker can obtain from the victim the additional information they require to provide assistance and services. While expressing the opinion that proactive referrals are contrary to a person’s rights, another person asked how the RCMP will respond to a victim who refuses a referral to a particular VSO but wishes the services of another VSO such as a police-based VSO. The important objectives of preventing harm to individual victims and of mitigating risks to public safety justify the limited intrusion of a person’s privacy when carefully prescribed conditions are met. Generally, the RCMP will refer a victim to the VSO of their choice.

One non-governmental victim organization expressed a number of concerns about the Regulations. First, the organization is concerned that proactive referrals could be detrimental to certain victims and may even violate their right to life, liberty and security. Second, the organization expressed the concern that public knowledge about proactive referrals or a victim’s knowledge that their case has been proactively referred to a VSO may have a chilling effect on their willingness to call upon the various components of the system, particularly in domestic violence situations. Third, the same organization is concerned that under the current policy, a member of the RCMP must inform a victim of a proactive referral at the scene, while under the Regulations the RCMP members are required to make reasonable efforts to ensure that the victim is made aware of the proactive disclosure of their personal information. Fourth, the organization expresses its opposition to the implementation of the Regulations, and calls on the Department of Public Safety and Emergency Preparedness, the RCMP and the various provincial and territorial governments to adopt referral measures that require the victim’s consent. Fifth, the organization asks these agencies and governments to draw on An act to amend various legislative provisions as regards to the disclosure of confidential information to protect individuals, adopted in 2000 by the Quebec government which sets out imminent danger of death or serious injury as grounds for the disclosure of personal information.

With respect to the first concern, the Regulations are consistent with the Canadian Charter of Rights and Freedoms. Proactive disclosures of minimum personal information to VSOs where prescribed conditions are met further the important Government objectives of preserving the peace or preventing a crime or offence, physical harm, emotional harm or economic loss. These objectives are sufficient to justify such an interference with an individual’s privacy.

As for the concern respecting the chilling effect of proactive referrals, knowledge of other facts such as the charging of a violent spouse following the victim’s call to police or the victim’s obligation to testify in court may also have a similar effect. Preventing domestic violence is a difficult and complex issue. Police and VSOs recognize that victims of power-based offences must be approached and treated with the utmost care because of the risk of harm to which they are exposed. However, there comes a point where criminal justice system professionals must intervene to prevent further risk of harm to victims of power-based offences. The Regulations will facilitate access to information and reduce victim isolation and vulnerability. By empowering victims with timely accurate information about supports and services, the Regulations will enhance their ability to cope with their daily trauma and maintain their safety.

With respect to the third concern, the RCMP will inform a victim at the scene that their personal information is to be disclosed to VSO when it is possible and appropriate to do so in light of the victim’s state. However, there may be instances where an RCMP member is unable to advise a victim of a proactive referral after the fact. The RCMP will work with the provinces to develop a procedure that provides that, in the absence of a notification of a proactive referral by the RCMP to the victim, the VSO which contacts the victim as a result of a proactive referral will advise the victim of the disclosure of their personal information.

As for the organization’s opposition to the Regulations and its call on the Department of Public Safety and Emergency Preparedness, the RCMP, and the various provincial and territorial governments to adopt referral measures requiring a victim’s consent, the Regulations implement the recommendation of the FPT Ad Hoc Working Group on RCMP Referrals to Victims Services concerning proactive disclosures which was approved by FPT Deputy Ministers Responsible for Justice and Public Safety in June 2012. (see footnote 6)

With respect to the organization’s call on governments to draw on An act to amend various legislative provisions as regards to the disclosure of confidential information to protect individuals which sets out grounds for the disclosure of personal information, the notion of protecting persons in imminent danger of death or serious injury is subsumed within the Regulations’ ground of proactively referring a person to prevent physical harm. Under the Regulations, limited personal information about a victim may only be disclosed to a VSO. The majority of the stakeholders who have been consulted are supportive of the Regulations which include the prevention of emotional harm or economic loss, preservation of the peace or prevention a crime or offence as grounds for proactive referrals.

Although expressing overall satisfaction with the Regulations, one provincial victim services organization queries whether the use of the word “may” in subsections 18.2(1) and (2) of the Regulations which govern the making of proactive referrals could lead to inconsistencies in the interpretation and application of the Regulations by RCMP members. The provincial victim services organization adds that decisions about referrals must be made by police after crisis incidents, which frequently occur late at night when victims most urgently require services and that any delay in sharing victims’ referral information in such circumstances is concerning. The organization asks whether consideration should be given to replacing “may” with “shall” in the subsections. The RCMP requires discretionary authority to effect a proactive referral. For example, it is the RCMP’s policy not to effect proactive referrals in a jurisdiction such as the Yukon with legislation (Victims of Crime Act) which prohibits the disclosure of personal information of a person who refuses consent. The ability to determine when a proactive referral should be made under the Regulations is a function of training and experience. RCMP course training standards, Info Web (RCMP’s internal Web site), the RCMP’s policy manual and the National Victim Assistance Policy will be updated to reflect the Regulations.

The Office of the Privacy Commissioner of Canada (OPC) disagrees that the RCMP should be given the regulatory authority to disclose personal information to a VSO about victims and others without their consent. The OPC adds that the Regulatory Impact Analysis Statement does not provide any compelling arguments or rationale for allowing referrals without consent. By authorizing proactive disclosures to VSOs in prescribed circumstances, the Regulations will prevent harm, including the death, and mitigate risks to public safety. The Regulations further the important Government objectives of preserving the peace or preventing a crime or offence, physical harm, emotional harm or economic loss. These objectives are sufficient to justify a limited interference with an individual’s privacy.

It is the OPC’s view that it is inappropriate to give RCMP members discretion to override the explicitly stated wishes of victims, and to share the personal information of witnesses and neighbours in many instances without their knowledge or consent. The OPC adds that giving the RCMP members the authority to decide when personal information should be disclosed to a VSO violates the fundamental privacy principle of consent and also appears to be inconsistent with the principles found in the 2003 Canadian Statement of Basic Principles of Justice for Victims of Crime, endorsed by federal, provincial and territorial ministers responsible for justice, which states “The privacy of victims should be considered and respected to the greatest extent possible.” The RCMP will, where possible, first seek a victim’s consent to refer them to a VSO. The Regulations will authorize members to proactively disclose to a VSO only that personal information which is necessary to ensure a safe referral to a VSO. The objective of the Regulations is to facilitate access to information about assistance and services to victims in a timely manner. This is consistent with principles found in the 2003 Canadian Statement of Basic Principles of Justice for Victims of Crime, including the principle which states “Information should be provided to victims about available victim assistance services, other programs and assistance available to them, and means of obtaining financial reparation.” The Regulations are also consistent with the rights enshrined in the Canadian Victims Bill of Rights which came into force on July 23, 2015, including the right to information, the right to protection and the right to participation in the Criminal Justice System.

It is the OPC’s view that proactive disclosures under the Regulations create a risk that individuals may feel re-victimized by the disclosure. Through a proactive referral, victims will be provided with an offer of assistance and services. Victims will then be in a position to make a more informed choice about whether to avail themselves of those services. The provision of assistance and services as a result of a proactive referral should prevent victims from feeling isolated and re-victimized.

The Federal Ombudsman for Victims of Crime and the Canadian Association of Chiefs of Police are supportive of the Regulations and believe that advance notification to victims of a proactive referral may serve to mitigate any potential perceived feelings of intrusion.

Rationale

Victim services organizations assist victims in ways that prevent harm to individual victims and mitigate risks to public safety. For example, these organizations reduce risks by providing protection and support to victims and by helping them cope with the trauma resulting from an offence. As a result, victims are able to participate and collaborate better with the various components of the criminal justice system. To support victims effectively, victim services organizations need to receive crucial information to allow them to contact victims in a timely manner and provide them with key information and offer the organizations’ services. The Regulations remove barriers to assisting victims of crime and ensure more effective criminal justice processes by providing the RCMP with a clear, consistent and uniform approach for the sharing of victim information with victim services organizations across jurisdictions to which the RCMP provides police services. The proactive disclosure of carefully limited personal information by the RCMP to victim services organizations will support a more efficient and effective delivery of victim services and, ultimately, prevent harm to individual victims and mitigate risks to public safety.

The Regulations are not expected to create additional costs as the conditions for proactive referrals set out in the Regulations and in the RCMP’s MOUs and the Policy are largely compatible; therefore, the RCMP will not significantly change its existing practices. The implementation of the Regulations will, however, have the benefit of formally entrenching in legislation conditions for proactive referrals in compliance with the Canadian Charter of Rights and Freedoms and the federal Privacy Act.

The regulatory proposal is not expected to have any impact on regulatory coordination or cooperation with other federal departments. The RCMP is involved in effecting proactive referrals to victim services organizations under MOUs, provincial legislation and the Policy. The RCMP will continue to make proactive referrals under the Regulations.

Implementation, enforcement and service standards

The Regulations will come into force six months after the day on which they are registered.

The amendments will require the RCMP to update manuals and procedures, to provide advice to RCMP members and to inform its stakeholders of the changes.

Stakeholders will be informed of the amendments to the Regulations via established FPT networks, such as the Canadian Association of Chiefs of Police, as well as through the RCMP Web site.

Contact

Angela Arnet Connidis
Director General
Public Safety Canada
Crime Prevention, Corrections and Criminal Justice Directorate

340 Laurier Avenue West
Ottawa, Ontario
K1A 0P8
Telephone: 613-991-2952
Fax: 613-949-6507
Email: ps.consultationsonregulations-consultationdereglements@canada.ca