Regulations Amending the Royal Canadian Mounted Police Regulations, 2014: SOR/2021-58

Canada Gazette, Part II, Volume 155, Number 8

Registration
SOR/2021-58 March 29, 2021

ROYAL CANADIAN MOUNTED POLICE ACT

P.C. 2021-216 March 26, 2021

His Excellency the Administrator of the Government of Canada in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subsection 21(1) footnote a of the Royal Canadian Mounted Police Act 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 footnote 1 are amended by adding the following after section 57.4:

Disclosure — Intimate Partner Violence

Definitions

57.5 The following definitions apply in this section and in sections 57.6 and 57.7.

Clare's Law
means the legislation of a province regarding the provision by a police service or police force of disclosure information relating to the risk of intimate partner violence. (loi de Clare)
disclosure information
means the information that is to be disclosed under the Clare's Law that is applicable in the province in which the disclosure is to be made. (renseignements visés)

Disclosure information

57.6 If the Force is the police force for a province in which Clare's Law is in force, or for a municipality in such a province, a member who is a peace officer may provide disclosure information.

Non-derogation

57.7 For greater certainty, nothing in section 57.6 is intended to derogate from the common law powers or powers under any other law of a member who is a peace officer.

Coming into Force

2 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Royal Canadian Mounted Police (RCMP) serves as the contract provincial police force for all provinces and territories except for Ontario and Quebec. Some provinces have passed Clare's Law legislation authorizing disclosure of personal information to persons at risk, in the form of a risk assessment, regarding the likelihood of being subjected to interpersonal violence from their partner. The federal Privacy Act limits the purposes for which personal information may be disclosed. Accordingly, amendments to the Royal Canadian Mounted Police Regulations, 2014 (the RCMP Regulations, 2014) are needed to expressly authorize disclosure of personal information consistent with Clare's Law and paragraph 8(2)(b) of the Privacy Act.

Background

Clare's Law legislation originated in the United Kingdom and is named after Clare Wood, a woman murdered in 2009 by her former domestic partner who had a record of violence against women that she was unaware of. Saskatchewan is the first Canadian province to adopt Clare's Law in legislation, entitled The Interpersonal Violence Disclosure Protocol (Clare's Law) Act, which came into effect on June 29, 2020. Similar legislation comes into effect in Alberta on April 1, 2021, footnote 2 and in Newfoundland and Labrador at a date to be determined. footnote 3 Adoption of Clare's Law legislation is being discussed and considered in other provinces/territories as well, including British Columbia.

Clare's Law authorizes police to disclose a third party's personal information in the form of a risk assessment (low, medium, high) to their partner (or any other person specified in the legislation and its regulations) to help them determine whether they are at risk of intimate partner violence.

The RCMP provides federal policing services across Canada, and local policing through contracts with 3 territories, 8 provinces, approximately 150 municipalities, and over 600 Indigenous communities. The RCMP, unlike provincial or municipal police forces, is subject to federal legislation, including privacy legislation. In Saskatchewan, where Clare's Law is in force, the municipal policing services are able to provide the service afforded through Clare's Law to the individuals that reside in that municipal police services jurisdiction. In the remainder of the province, which is policed by the RCMP, the individuals in these communities are at a disadvantage, as they are not receiving the same level of policing service.

Objective

These amendments provide the RCMP with express legal authority for disclosure of personal information under a Clare's Law. This will allow the RCMP to fully implement Clare's Law where it is in force. This will ensure that all individuals in that province or territory, wherever they live, have the same access to risk assessment information.

Participating fully in Clare's Law reinforces the RCMP's commitment to support those persons facing violence in relationships, intimate partner violence and gender-based violence, and would also help to support crime prevention, victim prevention and protection, as well as the health and social well-being of Canadians.

Description

The amendments to the RCMP Regulations, 2014 will expressly authorize disclosure of personal information consistent with Clare's Law and paragraph 8(2)(b) of the Privacy Act.

The amendments provide that, where the RCMP is the contract police force for a municipality, a province, or a territory, in which Clare's Law is in force, a member who is a peace officer may, in the course of the performance of their duties under paragraph 18(a) of the Royal Canadian Mounted Police Act (the RCMP Act) or at common law, provide disclosure information to an applicant in accordance with Clare's Law.

The amendments incorporate by reference the provincial legislation in force wherever the RCMP provides contract policing services. For example, were the RCMP to receive an application from an individual residing in Alberta for disclosure under Clare's Law, the province of Alberta's legislation and regulations would govern.

This incorporation by reference ensures that federal legislation will not displace local legislation. It also helps to ensure instrument sustainability (i.e. as Clare's Law legislation comes into force in future additional provinces or in the territories, or is amended from time to time, the federal regulatory authorization will automatically apply, without requiring further amendments).

Regulatory development

Consultation

The amendments to the RCMP Regulations, 2014, described herein, will only serve to incorporate by reference provincial or territorial legislation in jurisdictions that have enacted a Clare's Law. This will enable the RCMP to provide the same service as their municipal policing partners in the provinces and territories that have a Clare's Law and where the RCMP serves as the contract police. Therefore, a formal public consultation process for these regulatory amendments was not undertaken.

At the provincial level, the RCMP has participated in several working groups focused on reducing intimate partner violence, including the design and implementation of Clare's Law in certain provinces. During development of their provincial legislation implementing Clare's Law, there were comprehensive consultations in Saskatchewan and Alberta.

For example, the RCMP participated in Saskatchewan's Clare's Law Committee, which includes provincial officials (e.g. representatives from the Saskatchewan Attorney General's Office; Crown Counsel and Legislative Services from Saskatchewan's Ministry of Justice, the provinces' Assistant Deputy Minister of Corrections and Policing); the Saskatchewan Association of Chiefs of Police; the Chief of the Regina Police Service; and the Provincial Association of Transition Houses and Services (PATHS). PATHS represents 23 agencies who work daily with victims of interpersonal violence.

Alberta has established three Interpersonal Violence Disclosure Protocol working groups. The RCMP participated in the Protocol Working Group, consisting of all Alberta Police services and representation from the community organization tasked with providing supports to Albertans who apply to Clare's Law. The second working group, the Supports Services Working Group, consisted of representatives from the community organizations tasked with providing supports for Clare's Law. The third working group, the Social Supports Advisory Group, was representative of organizations who primarily serve women and/or Indigenous groups. These consultations were integral in informing the development of Alberta's Clare's Law legislation.

While a majority of the stakeholders that participated in these consultation sessions expressed general support for the proposed legislation, stating it will save lives, some participants expressed concern around the potential for violation of individual privacy rights and that prior offenders may have been rehabilitated. Stakeholders also raised concern that implementation of Clare's Law might lead to disproportionate targeting of Indigenous, minority and other communities. Indigenous community representatives indicated that when conducting risk assessments, special consideration should be given to affected Indigenous groups' perspectives. Following consultations, Alberta took several actions to mitigate these concerns by

The Government of Alberta also held an in-person consultation session and launched an online survey to support development of their Clare's Law legislation. The survey received responses from 441 participants. Of the 441 respondents, 63% responded as a member of the public, including those who identified as a minority or Indigenous person, and 37% responded on behalf of an organization, with the majority of those describing their organization as being a service provider for victims or as victim services.

To support development of Clare's Law legislation in its jurisdiction, Newfoundland and Labrador has an Interpersonal Violence Disclosure Protocol committee that is chaired by policy representatives from the province's Department of Justice and Public Safety (NL DOJ) and includes representatives from the RCMP and the Royal Newfoundland Constabulary, as well as representatives from NL DOJ's Probation Services and Access to Information and Protection of Privacy Office.

At the federal level, the RCMP consulted the Office of the Privacy Commissioner (OPC) on this regulatory amendment in September 2020. The OPC did not identify any concerns with authorizing disclosure pursuant to paragraph 8(2)(b) of the Privacy Act through amendments to the RCMP Regulations, 2014. A privacy impact assessment is under development and will be completed before the RCMP begins to collect information to administer Clare's Law in applicable jurisdictions. The Office of the Privacy Commissioner has been notified. The OPC also reported that, although they had not completed a comprehensive review of Saskatchewan's law, it was of the view that Clare's Law contains the “necessary privacy safeguards.”

These amendments were not subject to public comment through the Canada Gazette, Part I, process for the following reasons: (i) the amendments only incorporate by reference provincial legislation to give RCMP officers the same disclosure as other police officers and would not introduce new federal regulatory requirements; (ii) their timely implementation is needed to enhance public safety; and (iii) stakeholders have indicated strong support for the RCMP to be able to participate in Clare's Law.

Modern treaty obligations and Indigenous engagement and consultation

This amendment would help to support the safety of all Canadians; it is not specifically directed at mitigating intimate partner violence in Indigenous communities. It is not anticipated that modern treaty obligations would be affected. However, these amendments could benefit Indigenous peoples, particularly Indigenous women, by helping to prevent intimate partner violence through disclosure of risk assessments.

Additionally, implementation of this amendment is consistent with the RCMP's commitment to address violence against women, and Indigenous women in particular, following the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG). The RCMP is also contributing to the Government of Canada's National Action Plan being co-developed with Indigenous organizations and provincial/territorial governments to address violence against Indigenous women, girls and LGBTQ+ and two-spirit people.

The amendment to the RCMP Regulations, 2014 will be another step forward in the above-noted action plan. In December 2020, the RCMP engaged the Assembly of First Nations (AFN) to inform the AFN that the RCMP planned to seek authority to implement Clare's Law in applicable jurisdictions. The RCMP engaged additional national Indigenous organizations including, the Métis National Council and the Inuit Tapiriit Kanatami.

Instrument choice

A regulatory amendment was considered to be the most effective means of clarifying the RCMP's authority to disclose information pursuant to Clare's Law. In the absence of a regulatory amendment, a third party whose personal information is disclosed in the form of a risk assessment could object to the disclosure as a privacy violation under the Privacy Act.

Regulatory analysis

Benefits and costs

The amendments will enable the RCMP to fully implement Clare's Law where provinces have adopted it. Current versions of Clare's Law include protections to minimize invasion of personal privacy, while also ensuring that the objective of reducing interpersonal violence remains fulfilled. The amendments incorporate by reference provincial or territorial legislation, which will allow for a localized approach to Clare's Law that can be revised and improved upon by provincial or territorial governments according to best practices developed through experience.

While no significant additional costs are anticipated for the RCMP as a result of this amendment, there may be some costs associated with implementation of Clare's Law at the provincial level. The RCMP does not anticipate that training and staffing for processing and responding to information disclosure requests will require incremental resources. However, there are likely to be some operational costs for the provinces (who have enacted a Clare's Law) associated with funding any external review committees. These committees are comprised of agreed upon community representatives (i.e. social workers, women's shelter providers, victim services) and mandated under provincial legislation to review the disclosed personal information with the police for the risk assessment.

Small business lens

The small business lens does not apply, as there are no associated impacts on businesses.

One-for-one rule

The one-for-one rule does not apply, as there is no impact on businesses.

Regulatory cooperation and alignment

These amendments to the RCMP Regulations, 2014 support alignment between the federal government and the provincial and territorial governments approach to the implementation of Clare's Law (where applicable). These amendments ensure that RCMP officers have the authority to implement provincial or territorial legislation enacting Clare's Law without duplicating or displacing local legislation.

Operationally, the RCMP and its provincial or territorial partners will coordinate efforts to implement Clare's Law and help to ensure that applicants receive similar services regardless of which police force serves their community.

Provincial legislation determines the application and risk assessment process for the RCMP and the municipal police services within that province.

The RCMP will complete the necessary information gathering to inform the risk assessment process where they are the police of jurisdiction. If the information originated from another police service located in Canada, a request is sent to that police service seeking approval for disclosure. However, if the police service does not approve the request, the information may not be used for this purpose. Criminal records are maintained and stored at the National Repository of Criminal Records; approval of another police force is not required for disclosure.

Currently, the protocols are similar in the provinces that have introduced or have Clare's Law in force. Although there are differences between provincial and territorial application of Clare's Law, the RCMP is committed to working with each jurisdiction to ensure the RCMP is not creating barriers to the application of the law. At the RCMP National HQ, the Vulnerable Persons Unit within the National Crime Prevention and Indigenous Policing Services group will oversee the RCMP's national considerations for the implementation of Clare's Law, in applicable provinces and territories. If any gaps are found, a review of national policy may occur to address them.

It is not expected that the amendment will affect any obligations under international agreements, as requests for risk assessments are based on information held by Canadian police and limited to Canadian residents.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

The RCMP completed a gender-based analysis plus (GBA+), which found that

Recommendations made in the GBA+ report included, but were not limited to, exploring ways to increase trust between police and affected populations and ensuring that training has a trauma-informed and culturally relevant approach. These and other recommendations included in the GBA+ report, as well as from consultation with Indigenous groups and the OPC, will be considered during development of the RCMP's policy manuals and procedures for implementing Clare's Law once the amendments are in effect.

Implementation, compliance and enforcement, and service standards

Implementation

The implementation of the amendments to the RCMP Regulations, 2014 will come into force on the day on which they are registered. The amendments will require the RCMP to update policy manuals and procedures, training material and awareness products for frontline RCMP members.

Stakeholders will be informed of the amendments to the RCMP Regulations, 2014 through established Federal/Provincial/Territorial (FPT) networks, such as the Canadian Association of Chiefs of Police, FPT working groups, as well as through the RCMP's public website.

Under Clare's Law, the application process is undertaken through the police of jurisdiction in which the applicant resides. In the Saskatchewan Interpersonal Violence Disclosure Protocol, the disclosure process can be initiated by a member of the public making an application (right to ask) or by a member of a police service (right to know) who has received information that may impact the safety of the applicant in the “right to ask.”

The process associated with each disclosure route may vary, for example (i) due to increased harm to the applicant; (ii) mobility challenges; or (iii) social distancing requirements, but the key element is a full assessment of risk.

Generally, under Clare's Law schemes, all information that is presented to a review committee is anonymized, so the identity of the persons cannot be directly or indirectly identified. The determination of the risk is made by the committee, but as noted above, the police service makes the final disclosure.

In Saskatchewan, the police of jurisdiction may also, in emergency situations, disclose the information to the applicant without the review and further assessment of the multi-sector committee.

Service standards

The RCMP will work with FPT partners to develop service standards for responding to requests for disclosure of information under Clare's Law. It is expected these will vary by province or territory, based on the requirements and procedures of each province or territories' own legislation and regulations.

Contact

Insp. Pharanae Jaques-Croisetiere
Operational Policy and Compliance
Contract and Indigenous Policing
Royal Canadian Mounted Police
Email: Clareslaw-loideclare@rcmp-grc.gc.ca