Commissioner’s Standing Orders Amending the Commissioner’s Standing Orders (Conduct): SOR/2022-249

Canada Gazette, Part II, Volume 156, Number 26

Registration
SOR/2022-249 November 29, 2022

ROYAL CANADIAN MOUNTED POLICE ACT

The Commissioner of the Royal Canadian Mounted Police makes the annexed Commissioner’s Standing Orders Amending the Commissioner’s Standing Orders (Conduct) under subsection 47.1(3)footnote a of the Royal Canadian Mounted Police Act footnote b.

Ottawa, November 29, 2022

Brenda Lucki
Commissioner of the Royal Canadian Mounted Police

Commissioner’s Standing Orders Amending the Commissioner’s Standing Orders (Conduct)

Amendments

1 The Commissioner’s Standing Orders (Conduct) footnote 1 are amended by adding the following after section 30:

Non-application to unionized members

30.1 Section 30 does not apply to a subject member who is a member of a bargaining unit that is represented by a bargaining agent.

2 Paragraph 31(1)(b) of the English version of the Standing Orders is replaced by the following:

Coming into Force

3 These Standing Orders come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Standing Orders.)

Issues

Amendments to update the Commissioner’s Standing Orders (Conduct) (SOR/2014-291) [CSO (Conduct)] are required to clarify that the Member Representative Directorate (MRD) in section 30 of the CSO (Conduct) does not provide assistance and representation in conduct-related matters to RCMP members in a certified bargaining unit.

Since 2015, the bargaining regime available to RCMP members has evolved significantly. Many members are now in bargaining units and receive representation services directly from their certified bargaining agents. The amendments thus better reflect the current labour relations regime and in essence further support harmonious labour relations. There are significant costs involved if the process is not clarified for unionized members should these individuals seek MRD services rather than representation services from their unions.

The amendment updates the CSO (Conduct) to provide that MRD assistance or representation to unionized members is denied or discontinued because they are represented by a certified bargaining agent. The amendment further regularizes the understanding that it is the bargaining agent’s role and responsibility to assist and/or represent their members with conduct-related matters.

Background

The CSO (Conduct) came into force on November 28, 2014. The CSO (Conduct) provides that the MRD is a unit within the Force that may provide representation or assistance to a subject member. The MRD was established to provide assistance and representation to subject members in specified conduct processes under section 47.1 of the RCMP Act, and sections 29 and 30 of the CSO (Conduct).

In 2015, the Supreme Court of Canada held in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, that the exclusion of RCMP members from the collective bargaining regime under the (then) Public Service Labour Relations Act breached the members’ freedom of association. Since then, the bargaining regime available to RCMP members has evolved significantly. In response to the Supreme Court of Canada decision, the Government amended the Federal Public Sector Labour Relations Act and Public Service Labour Relations and Employment Board Act through Bill C-7 to provide a collective bargaining framework specific to members. Bill C-7 came into force in June of 2017. Today, many members are now in bargaining units and receive representation services directly from their unions.

For example, the National Police Federation (NPF) was certified by the Federal Public Sector Labour Relations and Employment Board on July 12, 2019, to represent non-commissioned officers and reservists. Many civilian members are also now represented by various bargaining agents. The deeming date of civilian members is presently unknown.

The RCMP and the NPF entered into a Memorandum of Agreement for the RCMP to continue the provision of MRD services to RCMP members for whom the NPF is the bargaining agent for an agreed upon transition period. This period ended for all cases on June 30, 2020. The NPF signed their first collective agreement on August 6, 2021.

As a consequence, the next step is to align the CSO (Conduct) to be consistent with the RCMP’s labour relations regime of represented and unrepresented RCMP members.

Objective

Subsection 30(3) of the CSO (Conduct) provides a list of exceptions when the director of the MRD can decide that a Member Representative must not represent or assist a subject member.

The intent of the amendment is to deny or discontinue assistance or representation by MRD to unionized members because they are represented by a bargaining agent.

The objective is twofold. Firstly, the update would better reflect the current labour relations regime at the RCMP, where unionized members have access to representation from their certified bargaining agent. Secondly, further clarity in the CSO (Conduct) on the scope of MRD would avoid unnecessary costs.

Description

Subsection 30(3) of the CSO (Conduct) currently lists three exceptions for the MRD to deny assistance or representation to a subject member:

Exceptions
(3) If the Director of the Member Representative Directorate decides that one of the following circumstances applies, a Member Representative must not represent or assist a subject member:

The amendment effectively adds a fourth exception to exclude members in a certified bargaining unit from representation by the MRD.

Regulatory development

Consultation

Consultation with Corporate Member Labour Relation Policy Center, the NPF, and the bargaining agents representing groups of civilian members that were in collective bargaining (CUPE and CMSG) took place. The bargaining agents were asked whether they would oppose or consent to the addition of a paragraph under subsection 30(3) of the CSO (Conduct) that would state something to the effect that “… a Member Representative must not represent or assist a subject member in circumstances where … (d) the subject member is represented by a certified bargaining agent.” None of the groups consulted opposed the amendment. No comments were received.

External consultations were conducted with certified bargaining agents representing members. No other external consultations were conducted given that the proposal has a narrow application.

This proposal was forwarded for inclusion in the Forward Regulatory Plan on April 16, 2020. The proposed amendment to the CSO (Conduct) was published on the external RCMP website on July 2, 2021.

Modern treaty obligations and Indigenous engagement and consultation

There is no impact on modern treaty obligations with Indigenous peoples. Since the CSO (Conduct) only applies to RCMP members, stakeholder groups that may be affected by the change are members of the RCMP who are represented by a certified bargaining agent.

Instrument choice

The Commissioner’s Standing Orders (CSOs) are statutory instruments established pursuant to the legislative power conferred to the Commissioner by the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 (RCMP Act). Subsection 2(2) of the RCMP Act defines CSOs as “the rules made by the Commissioner under any provision of this Act empowering the Commissioner to make rules.”

The Commissioner made the CSO (Conduct) pursuant to the legislative powers that are conferred by paragraphs 21(2)(k) to (m), sections 39.1 and 39.2 and subsections 46(4) and 47.1(3) of the RCMP Act.

As the CSO (Conduct) is a statutory instrument, only a regulatory instrument could be used to make the required amendments and therefore achieve the policy objective.

Regulatory analysis

This regulatory amendment will have a positive impact, as the policy objective behind it is to align the CSO (Conduct) with the current labour relations regime, therefore clarifying that the assistance and representation by MRD are for non-unionized members in conduct-related processes.

The amendments may only impact RCMP members who are represented by a bargaining agent.

Benefits and costs

With the transition of files to the NPF in place and civilian members also represented by various bargaining agents, the MRD received less demand for representation and assistance. Thus, the costs associated to MRD dropped significantly in 2020–2021 to $234,041.

MRD continues to provide representation and assistance to unrepresented RCMP members. However, the workload does not justify having full-time employees. As the transition period with NPF ended, all full-time MRD employees were transferred outside of MRD. The MRD uses an outside counsel on a 90-day contract on an “as and when required” basis. The cost associated to MRD for 2021–2022 was $47,742.

There is considerable quantitative cost-benefit to having the MRD provide assistance and representation to unrepresented members only. The costs went from $2M in 2017–2018, to less than $50,000 for 2021–2022.

Table 1: Member Representatives Directorate costs
Impacted stakeholder Description of cost Fiscal year 2017–2018 Fiscal year 2018–2019 Fiscal year 2019–2020 Fiscal year 2020–2021 Fiscal year 2021–2022
RCMP Administration (salary, travel costs, and O&M) $2,012,891 $1,786,151 $1,256,227 $234,041 $47,742
Quantified (non-$) and qualitative impacts
Positive impacts

Clarify the assistance and representation processes for unionized members in conduct-related processes.

Avoid labour relations issues should individuals seek MRD services rather than representation services from their unions.

Support harmonious labour relations.

There are no negative impacts.

Small business lens

The small business lens does not apply to this amendment, as there are no costs to small business.

One-for-one rule

The one-for-one rule does not apply to this amendment, as there are no anticipated increases to the administrative costs.

Regulatory cooperation and alignment

This amendment is not related to any work plan or commitment under a formal regulatory cooperation forum.

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

No gender-based analysis plus (GBA+) impacts have been identified for this amendment.

Contact

Colin Miller
Superintendent
Director
Conduct Adjudication Directorate
73 Leikin Drive, Mailstop #36, M5-1-601G
Ottawa, Ontario
K1A 0R2
Telephone: 613‑843‑5232
Email: colin.miller@rcmp-grc.gc.ca