Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar

Policy Review

Submissions of the RCMP External Review Committee

November 3, 2005

Table of Contents

I. Purpose of Our Submission

II. Mandate of the Committee

III. The Question of Merger

IV. Conclusion

I. Purpose of Our Submission

The RCMP External Review Committee (the "Committee") is an independent and arms length labour relations tribunal established by Part II of the Royal Canadian Mounted Police Act (the "Act"). The mandate of the Committee is to review grievance, disciplinary and discharge and demotion cases referred to it by the Royal Canadian Mounted Police (the "RCMP"), and provide recommendations on these cases to the RCMP Commissioner. The Committee's reviews are intended to ensure transparency, fairness, impartiality and independence in the internal RCMP labour relations process.

The purpose of this submission is to provide information and observations in relation to one area of consultation raised by the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (the "Commission"). Question 6 at the end of the paper entitled Domestic Models of Review of Police Forces: A Background Paper to the Commission's Consultation Paper, dated December 10, 2004 reads as follows:

Question 6: Should the Commission for Public Complaints Against the RCMP and the External Review Committee that handles internal discipline and grievances be merged into a single body, as in Ontario?

Our goal is to inform the Commission so that if it chooses to address the question in the background paper, it does so with a full understanding of the unique mandates of both agencies and the issues raised by the question of merger.

In this submission, the Committee will not be addressing any national security related questions pertaining to the actions of Canadian officials in relation to Maher Arar. These are not within our statutory mandate in the field of labour relations, nor are they a part of our day to day work.

In addition, the observations offered by the Committee in this submission are not intended to suggest that improvements could not be made to the current system under which it operates. In the Committee's respectful view, the scope of such a discussion belongs in a broader context that examines the entire labour relations domain for the RCMP.

II. Mandate of the Committee

The RCMP provides federal policing services and policing services under contract to eight provinces and all three territories as well as hundreds of municipalities and First Nations communities across Canada. The total complement of the Force as of April 2005 is 22,557, which includes 2,605 civilian members, 16,085 regular members, and 3,867 public servants. The RCMP regular and civilian members are not unionized and do not negotiate their conditions of employment1. The Committee was created in 1986 to fulfill the role of providing an independent oversight mechanism with regard to labour relations issues so that RCMP members would have access to redress mechanisms that are somewhat comparable to those available to unionized public servants.

At this time, the Committee has one member who is both the Chair and Chief Executive Officer. She is appointed by the Governor in Council for a term not exceeding five years. Under the Act, anyone who sits on the Committee cannot be a member or former member of the RCMP.

The Committee does not have authority to initiate reviews; the cases must be referred to it by the RCMP Commissioner. The Act sets out the types of cases that require Committee review. As well, the Committee does not have investigatory powers. In all grievance, discipline and discharge and demotion matters referred to it, the Committee bases its review on the entire record before it. This includes all of the original documents, the decision made, and the submissions of the parties. Where the review involves the appeal of a disciplinary or discharge and demotion decision, the transcript of the Board hearing is also before the Committee, as well as any exhibits entered at the hearing. The Chair may request that the parties provide additional information or submissions. If this is done, the other party is given the chance to respond. As well, the Chair has authority to hold a hearing if deemed necessary, although use of this option is rare. The Chair reviews all the evidence, legal issues, relevant legislation and case law in coming to her determination on the matter.

After consideration of all the issues, the Chair of the Committee provides findings and recommendations to the RCMP Commissioner, who is the final decision-maker in the internal process for these cases, as well as to the parties. The RCMP Commissioner must consider the Committee's recommendations. If he decides not to follow them, the law requires that in his reasons, he give an explanation for not doing so2. The RCMP Commissioner's acceptance rate of Committee decisions is in the range of approximately 85%. In the area of grievances, the acceptance rate has been 89%3. In the area of disciplinary matters, the acceptance rate is 70%4. In the area of discharge, where only four recommendations have been issued by the Committee, the acceptance rate is 75%5.

Similar to many other review and oversight bodies, there is a public interest component to the Committee's work. However, unlike public complaint review bodies, the Committee does not address complaints from the public. Its key stakeholders are members of the RCMP.

The Committee's Role in National Security Activities

The Committee has the statutory mandate and expertise to address issues before it whether or not a case referred to it originates out of a matter of national security and whether or not it is related to a public complaint. Disclosure in the labour relations context could be fettered if disclosure of a document threatens national security6, but a restriction on disclosure before the Committee on that basis has not occurred.

Whether a disciplinary appeal arises from a potential national security context or not, the Code of Conduct applies. Recently, for example, the Committee has reviewed disciplinary appeals involving witness protection and inappropriate relationships; an undercover agent's relationship with a protected witness; and whether the whistleblowing defence applies in a matter of an investigation into corruption in the immigration application process. In the area of grievances, the Committee has undertaken reviews regarding grievances of compensation for meals arising from the Summit of the Americas and the G-8 Summit; harassment allegations in a situation where a job description involved security related expertise; harassment of a member assigned as a United Nations civilian police officer; mandatory retirement and the application of the Charter where a member had not been offered a security related responsibility he had been acting in for some time.

In addition, staff of the Committee are qualified to undertake such reviews. All lawyers are members of a provincial law society and most are designated within the government at either the Secret or Top Secret level. Legal expertise and experience are kept up to date through regular attendance at conferences, audio conferences, and ongoing continuing education in the areas of labour relations, disciplinary matters, human rights issues, the Charter, administrative laws, privacy laws, disclosure issues, and relevant Criminal Code provisions. Staff also have access to Quicklaw, and other research materials including an internal data base of all of its recommendations, and decisions of the disciplinary and discharge adjudication boards. The Committee also has access to a number of grievances, disciplinary and discharge and wrongful dismissal cases from the larger labour relations context. Through these and other activities, the analysis of cases before the Committee is done through a judicious and independent review of the cases referred to it.

As part of its outreach function, staff of the Committee have written a number of articles for its quarterly publication, the Communiqué. Over the last few years, areas dealt with include standing and time limitations, bias in proceedings, the Charter of Rights and Freedoms, disclosure, the grievance procedure, as well as updates on a number of cases that have gone to the Federal Court of Canada on areas such as whistleblowing, inappropriate relationships with members of the public, the length of time taken to undertake an investigation for disgraceful conduct, excessive force, and the duty to accommodate members who suffer from a disability. Staff also meet with members of the RCMP staff relations representatives program, who are also regular and civilian members of the RCMP. This program is designed to provide members of the RCMP with a formal system of elected representation to ensure their participation in the decision-making process and a voice in matters that affect members' welfare, dignity and operational effectiveness7. Staff have visited RCMP detachments and training centres to inform themselves of the work done by members of the RCMP. They have also engaged in training and orientation sessions with the RCMP and have met with the RCMP Professional Standards and External Review Directorate of the RCMP, which plays a key role in the administration of the grievance and disciplinary and discharge and demotion process internal to the RCMP.

Description of Processes

A brief description of the processes for grievances, disciplinary appeals and discharge and demotion appeals follows. It should be noted that the principal component of the Committee's work is the review of RCMP grievances8.

Grievances

Part III of the RCMP Act gives members the right to submit grievances. Initially these are reviewed by an RCMP officer designated as a Level I Adjudicator, and the decision is based on written submissions. If a member is dissatisfied with the decision, then the member files a Level II grievance.

Not every Level II grievance comes before the Committee, but the law provides that certain grievances must be referred to it. Section 36 of the RCMP Regulations sets out five categories of grievances that must be referred to the Committee for review: interpretation and application of government wide policies that apply to members of the RCMP; stoppage of pay and allowances during suspension of a member; interpretation and application of the Isolated Posts Directive; interpretation and application of the Relocation Directive; administrative discharge on grounds of physical or mental disability, abandonment of post, or irregular appointment.

The Committee has addressed a variety of grievance issues. For example, in the last four years, the Committee has commented upon harassment policy procedures, mandatory retirement, the medical discharge process, finding in its recommendation that the policy did not reflect the current Supreme Court of Canada jurisprudence on what is commonly referred to as the Meiorin decision9; and the stoppage of pay and allowances during suspension of a member. As well, the public interest was recently explored in a series of grievances in relation to good governance and financial stewardship.

Disciplinary Appeals

All members of the RCMP must follow the RCMP Code of Conduct ( the"Code") (found in ss. 38-58.7 of the RCMP Regulations, 1988). Part IV of the Act describes disciplinary processes and sanctions for members of the RCMP, and it sets out the accountability mechanisms for members who are found to be in violation of the Code of Conduct.

Violations of the Code may be addressed informally, but in more serious cases will be addressed through formal measures. Where formal discipline is initiated, the matter is referred to an adjudication board (the "Board"), comprised of three senior officers of the RCMP. A hearing is held and the Board determines if the member has violated the Code of Conduct. If so, another hearing by the same board is held to determine the appropriate sanction to be imposed.

The Board's decision can be appealed to the Commissioner of the RCMP. The majority of appeals to date have concerned cases where the Board ordered the member to resign from the Force. The member who was the subject of the proceedings can appeal both a finding that the Code of Conduct was violated and the sanction imposed for that violation. The Commanding Officer of the relevant Division who instituted the proceeding may also appeal a finding that the member did not violate the Code of Conduct. However, the Commanding Officer cannot appeal a sanction imposed by the Board, except in limited circumstances. Both parties must make their appeal submissions in writing. The appeal is then referred to the Committee, unless the member requests that the matter proceed directly to the RCMP Commissioner.

The Committee has addressed a wide range of disciplinary matters over the years, including off duty and on duty conduct related to issues pertaining to the public10. For example, cases before it have addressed issues such as passing confidential information to criminal elements; underage drinking and allowing minors access to pornography; use of force in detention; a public complaint against a ticket issued and pursuit of a social relationship; accepting a property transfer from a woman with dementia.

Discharge and Demotion Appeals

Under Part V of the RCMP Act, a member may be subject to discharge or demotion proceedings for failing to perform his or her duties in a satisfactory manner, after having been given "reasonable assistance, guidance and supervision in an attempt to improve the performance of those duties." These proceedings are initiated by the Commanding Officer serving the member with a Notice of Intention to recommend discharge or demotion. The member has the right to examine the material in support of the Notice of Intention and to request that a discharge and demotion board, consisting of three senior officers of the Force, be convened.

Either the member or the Commanding Officer may appeal the decision of an RCMP discharge and demotion board. Appeal submissions are made in writing and the appeal is then referred to the Committee. There have only been four appeals of discharge and demotion board decisions before the Committee, one of these having been reviewed in the last year.

III. The Question of Merger

The question of the merger of the Committee with the Commission for Public Complaints Against the RCMP (the "CPC") presents challenges because it is connected with a plethora of other questions that may not be front and centre before the Commission.

The origins of the Committee suggest that the option of one merged body, examining both public complaints and labour relations issues was considered by the federal government, but discarded and replaced in the legislation with two agencies, each with a distinct mandate to be carried out independently of each other. It is generally understood that the creation of both of these agencies arose out of the Report of Mr. Justice René Marin, head of the Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure within the Royal Canadian Mounted Police (Information Canada, Ottawa, 1976) (the "Marin Commission").

The Report had recommended the creation of both a public complaint system and a disciplinary and grievance system, structured under one organization entitled the Federal Police Ombudsman, but this did not happen. It is noteworthy that Bill C-65, which eventually led to the current RCMP Act did not follow on the heels of the Marin Commission report. There were many attempts at bills before this occurred: Bill C-50 in April 1978; Bill C-19 in Nov 1978; Bill C-69 in 1981; Bill C-13 in 1985; and finally Bill C-65 in 1986. In addition, as noted in the Commission Background Paper on Domestic Models, a second major report was issued in 1981, the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police.

Clarification as to how or why Bill C- 65 was structured as it was would require a careful piecing together of many debates over many years, and many iterations of proposed legislation, a huge undertaking. However, it is interesting to note that in Canada (Commissioner of the Royal Canadian Mounted Police (Re))11, the Federal Court of Appeal endorsed another judgement recognizing the parallel and separate mandates of the Committee on the one hand, and the CPC on the other12. It stated:

One purpose of the legislation, then, deduced from the mischief at which it was directed, is the protection of the public from having its complaints investigated privately. But it is evident from other clarifying words of the Solicitor General that there is another mischief to be guarded against as well, viz., the pillorying of members of the Force (Debates, September 11, 1985, at page 6519):

The recommendations of the Marin Commission are substantially implemented in this Act and considerable time and effort has been invested in developing revisions that will support and further the work of the RCMP and adequately preserve the delicate balance between the protection of the rights of the public and the individual members of the RCMP.

This comment would indicate that both mischiefs are being equally guarded against.

Question 6 ("Should the Commission for Public Complaints Against the RCMP and the External Review Committee that handles internal discipline and grievances be merged into a single body, as in Ontario") arises out of a discussion of various public complaints models. However, in the Committee's view, the question of merger also requires full consideration of the labour relations context of the RCMP, including a review of the present system and the uniqueness of the Committee within that context.

Furthermore, the question makes specific reference to the Ontario model of police review. It must first be determined whether this model is suitable for the RCMP environment, given that the nature of the Ontario model is based on a different system of police administration throughout that province. The notion of civilian review and public confidence also needs to be explored.

More importantly, the wording of the question does not appear to address an important balance. On the one hand, there is the need to support robust review of public complaints that has the confidence of the public and police. On the other hand, there is the requirement for mechanisms that contribute to a positive labour relations environment within the RCMP and that have the confidence of the RCMP membership. Both need to be effective and trusted.

The Committee highlights three important issues that are raised by the question of merger. The first is consideration of the distinct mandate of the Committee and the risk that a merger will blur the mandates of the CPC and the Committee. The second is the potential for conflict of interest or the perception of conflict of interest with a merger. The third is the importance of examining various models that serve the notion of civilian review of police discipline but that do not necessarily presume that this must be done through a merger.

The Distinct Mandate of the Committee

The mandate of the Committee differs greatly from that of the CPC. It is focussed on the review of labour relations decisions made within the RCMP, and its reviews take place at the appellate level of the process. The files to be reviewed are referred to the Committee after the initial decision has been made, and the Committee has no direct contact with the public.

CPC's mandate is the review of public complaints against the RCMP. The Commission may operate either as a form of appellate review of an RCMP investigation and decision about a complaint, or, when the Chairman invokes the public interest, as an external review of first instance. It receives the complaint from the member of the public, or the Chair can initiate a complaint, an investigation or a hearing.

The Committee's workload is primarily the review of grievance decisions that have been brought to the second level for decision by the RCMP Commissioner. There are many parallels to be drawn between Part III of the Act, which addresses grievances, and the mechanisms under the public service labour relations legislation upon which it was modelled. In this area of its mandate, the Committee examines a variety of human resources related issues that come into dispute. This is a significant aspect of its work which is not part of a public complaints review agency mandate.

Any proposed merger would have to carefully weigh the juxtaposed mandates of a conglomerate to ensure that those components that are distinct from a public complaints model would be properly addressed13.

Furthermore, even though some disciplinary appeals may have arisen from public complaints, a significant number of disciplinary decisions under appeal do not. The alleged misconduct that may be the subject of a formal disciplinary hearing may be brought to the attention of a commanding officer of a division through various means, such as a complaint from a colleague, or after a review of a file on an activity by an RCMP member, or from a public complaint.

The mandates of both the Committee and the CPC are so distinct that there is the real possibility that a merger of the two organizations could confuse the purpose and scope of responsibility of both, thus lessening the effectiveness of either. This issue of blurring the activities where there are fundamental differences in mandates was raised by the CSE Commissioner, The Right Honourable Antonio Lamer, when discussing the option of a SIRC common to the RCMP and CSIS14:

On the other hand, there is a risk of introducing confusion to the role of the review agency, because of the fundamental differences between policing national security versus assessing threats to national security. One wonders what would be gained by giving SIRC responsibility to review activities that the government determined ought to be carried out separately by two distinct organizations with the passage of the CSIS Act in 1984.

In the same submission, he raises concerns about the option of a SIRC model common to all federally regulated national security operations15:

The distinction between entities risks becoming blurred, as I alluded to earlier, at the expense of independent review, and could lead to accusations of real or potential conflicts of interest, and possibly collusion.

Given the distinct nature of both the Committee and the CPC, a merger could present challenges in upholding their separate mandates. As a consequence there is the risk that the effectiveness of each would be undermined.

The Potential for Conflict of Interest or the Perception of Conflict of Interest

If a public complaints review mechanism merges with a grievance and disciplinary and discharge and demotion review function, there are risks that either the public, or the membership of the RCMP, or both, will form the perception that they are not well served by the structure because of an inherent distrust of its true mandate. There may also be the risk, either real or perceived, that the adjudication of a public complaint driven violation of the Code would be weighed unfairly, or be compromised by competing and conflicting views. There have to be in place robust assurances that the overall mandate of any structure does not conflict, either in reality or by appearance, with the mandate of the separate review mechanisms within it. This is critical to the confidence that various stakeholders have in such a mechanism.

The Ontario Civilian Commission for Police Services Ontario (the "OCCOPS") has recently been the subject of review by the Honourable Justice Patrick Lesage. Indeed, one of his recommendations for more robust public oversight included the separation of the public complaints component from the Ontario Civilian Commission for Police Services. In his discussion paper, he states that in fact no one model stands out upon which all others should be based16:

The trend across all jurisdictions is for more robust forms of civilian oversight of the police. This fact should cause neither surprise nor concern given the role of the police in modern society, the work of the police, the power that the police wield and the potential for abuse of that power. In my review of complaints systems in other jurisdictions, it became clear that no one system stands out as a model upon which all others should be based. Complaints systems appear to have been implemented based on the historical relationship between the police and the community. This presents a significant challenge to the creation of a system in a Province as large and diverse as Ontario....

The functions of the Committee and the CPC are completely separate. However, a merger might raise the risk of real or perceived conflicts in the manner in which their distinct mandates are carried out. As noted by the Honourable Justice Lesage in his review of OCCOPS, there were a breadth of comments about the many conflicting roles that have been identified in the Ontario model, both in his consultation, and in a number of court decisions17.

There were some concerns regarding the appropriateness of OCCOPS' involvement in the review of investigations and a chief of police's decisions given OCCOPS' role in appeals. Indeed, concerns over OCCOPS' many conflicting roles have been identified not only in my consultation but also in a number of court decisions. It is my view that OCCOPS should not be involved in the review of a chief of police's decisions following an investigation. This responsibility should lie with an independent body that does not have a role in an appeal of a subsequent hearing decision."

The court decisions referred to by the Honourable Justice Lesage to support his recommendation for a new and independent body include an Ontario Divisional Court decision Gardner v. The Ontario Civilian Commission on Police Services (OCCOPS) 72 O.R. (3d) 285 [2004] O.J. No. 2968. This case deals with the issue of bias. A possible misconduct concern about a police board member's acquisition of a weapon with ammunition from the police was presented to the Toronto Chief who passed the matter to OCCOPS for action. OCCOPS then investigated the matter, and reviewed the investigation report to determine whether to conduct a hearing and did in fact hold a hearing. On appeal, arguments as to a reasonable apprehension of bias were raised by Mr. Gardner who had been found guilty of misconduct. The Divisional Court found that there was a reasonable apprehension of bias. The Court noted that Mr. Gardner's credibility was raised as an issue and that bias was established as the same members of OCCOPS were involved not only in the review of the evidence in considering whether a hearing was an appropriate step, but also in the hearing stage. This case raises the issue of potential conflicts of interest that can arise when an agency is multi-faceted in its powers and mandates. Although there were legislative measures that they could have been taken to prevent the situation of bias, those measures were not taken and that in itself may highlight what can happen in a working atmosphere where the structure itself fills multiple and conflicting roles. In coming to its conclusion and allowing the appeal, the Court expressed the view that "the merging of the various functions of investigation, decision to hold an inquiry and adjudication by the participation of the three panel members in all phases raises a reasonable apprehension of bias resulting in a loss of jurisdiction and the decisions of the Commission cannot stand"18.

Civilian Review of Internal RCMP Disciplinary Process

The question on merger in the Background paper on domestic models equates the need for civilian review with the adoption of a model akin to the Ontario OCCOPS model. However, the question does not allow for a consideration of other models for civilian review.

The review process utilized by the Committee integrates considerations of police accountability, and the need for public confidence in the manner in which it reviews disciplinary appeals. The importance of public confidence in review functions of police conduct has been the subject of some comment. In Southam Inc. v. Canada (Attorney General) 36 O.R. (3d) 201 the Court addressed whether formal disciplinary hearings could be held in private, highlighting the public's very strong interest in police disciplinary hearings:

Because the public nature of a peace officer's duties and the broad powers given by law to a peace officer in the execution of those duties, and because formal adjudication board proceedings can affect an RCMP member's rights so significantly, the public had a very strong interest in such a hearing. The role of the adjudication board is clearly a judicial one. The provision excluding the public would prevent the media from being able to gather information about the proceedings. A conclusion that s. 2(b) is engaged is inescapable. The absolute privacy requirement in s. 45.1(14) cannot pass the test under s. 1 because it is totally arbitrary and restricts the gathering of information in the hearing absolutely. It is more restrictive than necessary to protect legitimate privacy or secrecy interests and therefore fails the rational connection, minimal impairment and overall proportionality aspects of the Oakes test.

In the area of disciplinary appeals, the model of the Committee, as adopted in the Act, is akin to the appeal function of a typical adjudication board for a professional disciplinary committee. The Committee must include a consideration of public interest. While the Committee and present RCMP Commissioner have recently disagreed as to the scope of the public interest considerations of the Committee in disciplinary proceedings, the Committee has expressed the view that it should be of a paramount consideration throughout the process, not only in the consideration of sanction19.

Similar to professional disciplinary proceedings in other realms, such as that put in place for lawyers in Ontario, the purpose of the RCMP disciplinary process is not to "punish offenders and exact retribution, but rather to protect the public, maintain high professional standards, and preserve public confidence20". All sanctions necessarily have punitive effects, but the goals of the process are, nevertheless, non punitive21. As recently stated by the Ontario Court of Appeal in addressing a health profession disciplinary matter, while the discipline process must "recognize the public interest involved, care must also be taken to accord that professional the full due process that the disciplinary legislation was intended to provide22". The Committee has expressed similar concerns, noting that while the public interest is a central concern in the disciplinary process, professional bodies also have a duty to act fairly with members, given that the sanction imposed may lead to reputational damage, or a complete loss of livelihood23.

In a 2001 preliminary discussion paper on discipline and alternate dispute resolution techniques, the Committee discussed the public interest as a central concern in police disciplinary proceedings24. The report noted further on the issue of public confidence that:

While it is important that such issues be handled compassionately and quickly, particularly where the misconduct is not so serious as to warrant termination of employment with the Force, the manner in which the discipline is handled by the Force has to be seen as fair and reasonable by the Canadian public. This implies necessarily that the process has to be transparent: there must exist a certain level of accountability for decisions taken about discipline and the decision-makers must be able to justify their conclusions.

With regard to public perception of the alleged misconduct, the Committee stated that when determining an appropriate sanction, a number of considerations can go into evaluation of the public perception, including an appreciation of contemporary social values and a particular appreciation of the extent to which off duty conduct may be seen as relevant to the employment of an RCMP members25.

The question of the role the public should play in the RCMP disciplinary process arising from a public complaint is one that the Commission may consider. Presently, the Act does not give the right to review or appeal a disciplinary sanction to anyone other than the member and the appropriate officer in limited circumstances. Also absent is a civilian driven disciplinary review process either before or after the Commissioner of the RCMP has made his or her decision. This differs from the Ontario model of public complaints and disciplinary review. While the nature of civilian driven disciplinary review is an important question, there are already mechanisms in place that address components of this. For example, it is not infrequent for the Committee to review appeals of disciplinary decisions where there was a public complaint to the RCMP and the complainant testified as to the effect of the member's conduct. The public interest and public confidence in its review is always a paramount consideration in the Committee's review. The public perception of misconduct is taken into consideration by the Committee in making its recommendation. In addition, in the public complaints process, the RCMP Commissioner advises the CPC Chair of the sanction imposed26.

The form that civilian review should take is a question separate and apart from the issue of what body should be responsible for conducting the review. If the issue of an appeal of police discipline by a member of the public is considered important in instances where the alleged misconduct arose from a public complaint, there are different structures that could provide civilian review of the imposition of a disciplinary sanction without presuming that a merger of the two entities (CPC and the Committee) would be the best way to assure additional public scrutiny. For example,

In presenting these examples, the Committee recognizes that the whole issue of a civilian driven review function is a matter that deserves much fuller discussion. However, the Committee raises these examples to highlight the fact that there are a number of ways to address public complaints related disciplinary matters that do not involve the merger of the Committee and the CPC.

IV. Conclusion

The Committee has provided a description of its unique mandate, and has highlighted the need to examine the rationale of Question 6 and the issues that it is truly exploring.

The Committee observes that there may be compelling reasons for keeping the labour relations mechanisms separate and apart from civilian review of public complaints, given the distinct difference in mandates and the potential for conflict. In any event, there are challenges that must be addressed to ensure balance in any review process proposed.

By forwarding submissions to the Commission, the Committee is not suggesting that the current system could not be improved. However, the Committee notes that its mandate as a review mechanism may be confused with that of civilian review public complaints mechanisms. The issue of public perception and public interest in the context of disciplinary sanction is an area worthy of continued examination and discussion, but a part of that discussion also belongs in domains apart from security review or oversight.

As stated at the outset, the question of the merger of the CPC and the Committee raises a number of issues that should be fully examined before a decision is taken. It is important that any model chosen fosters both trust and respect in the labour relations and disciplinary mechanisms in place on the one hand, and the public complaints review on the other. Otherwise, the possibility of robust civilian oversight or review and positive labour relations could be compromised.

Endnotes

1 There has been some debate over the issue of unionization and collective bargaining rights for RCMP members. This submission will not address the potential alternatives to the current system that would exist within a collective bargaining environment.

2 The statutory duty of the RCMP Commissioner to give reasons has been addressed in Federal Court, recently in Muldoon v. Canada [2004] F.C. 380 at para [21] ( http://decisions.fct-cf.gc.ca/en/2004/2004fc380/2004fc380.html)

3 The RCMP Commissioner has followed 304 of 343 of the Committee grievance recommendations. As of October 18, 2005, there have been a total of 378 grievances before the Committee where recommendations have been issued. However, 10 grievances were withdrawn; in 6 the Committee found it had no jurisdiction; and 19 others are pending.

4 The RCMP Commissioner has followed 58 of 83 of the Committee's discipline recommendations. As of October 18, 2005, the Committee has issued findings and recommendations for 95 discipline appeals. Members withdrew 8 before the RCMP Commissioner made a decision and 4 are currently before the RCMP Commissioner.

5 Data as of October 18, 2005.

6 Section 31(4) of the RCMP Act provides that any member presenting a grievance shall be granted access to such written or documentary information under the control of the Force and relevant to the grievance as the member reasonably requires to properly present it, subject to any limitations prescribed pursuant to paragraph 36(b). Section 36(b) states that the RCMP Commissioner may make rules specifying limitations, in the interests of security or the protection of privacy of persons, on the right of a member presenting a grievance to be granted access to information relating thereto.

7 See Royal Canadian Mounted Police Regulations, 1988, SOR/88-36, S. 96(1) and (2). Staff Relations Representatives are democratically elected from each of the divisions across the Force. They represent members at the local level within their respective divisions and also deal as a caucus with issues of national concern. See also Fact Sheet No. 7: RCMP Fact Sheets 2000-2001: The Division Staff Relations Representative (DSSR) Program (http://www.rcmp.ca/pdfs/facts_2001_eng.aspx#factsno7); the "Staff Relations Representative Program" at http://www.rcmp.ca/html/srr_eng.aspx.

8 In 2003-2004, a total of 43 cases were referred to the Committee. Of those, 36 were grievances, 6 were disciplinary appeals and there was 1 discharge and demotion appeal. In the same year, the Committee issued findings and recommendations in 45 cases, including several outstanding cases from previous years. Of those, 37 were grievances, 7 were disciplinary appeals and there was 1 discharge and demotion appeal. At the end of 2003-2004, 40 active cases remained before the Committee, including 35 grievances. In the 2004-2005 year, 30 grievances were referred to the Committee and 11 disciplinary decisions were referred. No discharge appeals were referred to the Committee in the 2004-2005 year. At year end, 46 cases remained before the Committee.

9 British Columbia (Public Service Employee Relations Commission) v. BCGSEU [1999] 3 S.C.R 3

10 These cases may pertain to disciplinary actions arising from complaints from the public but not necessarily the process under the Commission for Public Complaints Against the RCMP (the "CPC").

11 [1994] 3 FC 562 (C.A.) (leave to appeal to the Supreme Court of Canada dismissed, Supreme Court of Canada [1994] S.C.C.A. No. 387) ( http://reports.fja.gc.ca/eng/1994/1994fca0288.html/1994fca0288.html.html)

12 In addition, the 1988-1989 Annual Report of the RCMP External Review Committee comments on the separate mandates of the two entities, only two years after the Committee had been put into place (Annual Report 1988-1989 Royal Canadian Mounted Police External Review Committee, Ottawa, Canada at page 5):

Although the Committee and the Public Complaints Commission have different mandates, the possibility of an overlap in jurisdiction exists. When the RCMP imposes formal disciplinary measures on a member following a public complaint, the Committee may have to review such sanctions in light of the circumstances surrounding the complaint.

The Committee and the Public Complaints Commission have established a dialogue in areas of mutual interest.
...
The Committee wishes to continue this dialogue. It cannot however disregard the legislative policy set out in the RCMP Act, establishing two agencies, one dealing with public complaints, the other with grievances, formal discipline and discharge and demotion. The Committee recognizes and will carry out this policy when dealing with matters within its jurisdiction.

Also of interest is the 1992-1993 RCMP External Review Committee Annual Report which comments on the attempts being made to amalgamate the RCMP External Review Committee with the RCMP Public Complaints Commission in 1993. From the description in the Annual Report, a complicated amendment to the RCMP Act was drafted to address the inherent conflict of interest that could arise from a common structure. This amendment was never passed.

Apart from the issue of a conflict of interest, it is interesting to note that in 1994 doubt was expressed by the then Acting Chair of the Committee about whether an amalgamation of the RCMP Public Complaints Commission and the RCMP External Review Committee would in fact have reduced costs, because of the complicated structures proposed under the bill. (See House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs. Pp 12-13, First Session of the Thirty-fifth Parliament, 1994 )

13 Some support for an approach that recognizes the distinct human resources functions of the grievance mandate can be gleaned from a recent review of changes to the National Defence Act by the Right Honourable Antonio Lamer. Until six years ago, the Committee's role was unique in the federal agency landscape. Since then however, the Canadian Forces Grievance Board (the "CFGB") (an independent, impartial tribunal that provides recommendations to the Chief of Defence Staff on certain grievances from members of the Canadian Forces), has been created by amendments to the National Defence Act (NDA). Its more recently drafted statutory framework for grievance adjudication was largely modelled upon that of the Committee. Its grievance mandate covers a number of areas that include the equivalent of discharge and grievance issues under the RCMP Act; and areas including the equivalent of some types of disciplinary issues in the form of forfeiture of pay, reversion of rank and release, and grievance issues under the RCMP Act.

The CFGB does not deal with formal disciplinary matters but there is an important distinction to be made between formal discipline in the RCMP, which concerns itself with the employment relationship, and courts martial in the military, which are quasi criminal and which also encompass the breach of statutes other than the NDA.

Another major change in the NDA was the establishment of a Military Police Complaints Commission to investigate complaints with respect to military police conduct and interference with military police investigations, separate from the Canadian Forces Grievance Board. Additional changes were also made to clarify the roles and responsibilities of principal actors in the military justice system.

In his first independent review of the changes to the National Defence Act, the Right Honourable Antonio Lamer noted that the grievance structure is properly seen as a human resources issue as it involves matters that affect the morale, well being and quality of life of members. The inference was that it is different than the military justice mandate of the changes to the NDA , including, for example, the mandate of the Military Police Complaints Commission, which has similar functions to the CPC but with the military police. (First independent review of the changes to the National Defence Act, the Right Honourable Antonio Lamer, Submitted to the Minister of National Defence, September 3, 2003)

14 Lamer, Antonio Submission to the Arar Commission by the Communications Security Establishment Commissioner, January 11, 2005, at page 3

15 Ibid at page 4

16 Lesage, Patrick, Report on the Police Complaints System in Ontario, April 22, 2005 at page 57 ( http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/Lesage/en-fullreport.pdf)

17 Ibid, at page 74

18 Gardner v. The Ontario Civilian Commission on Police Services 72 O.R. (3d) 285 at para 27 Leave to appeal refused, Ontario Court of Appeal [2004] O.J. No. 4320

19 In a 2004 decision the RCMP Commissioner ruled that in his view, the function of the Committee in the realm of public interest is limited to sanction. The Committee had made findings and recommendations pertaining to the procedural rules that should apply when agreed statements of facts are before the internal adjudication board, recommending that the Board give notice to both parties when it decides not to accept them. A primary concern of the Committee in making this finding and recommendation was the public interest.

20 MacKenzie, Gavin, The Purposes of Professional Disciplinary Proceedings, The Advocates' Society Journal, 11 Advocates Society Journal No. 2, pp 3-30, July, 1992

21 Ibid pp 3 - 4

22 Katzman v. Ontario College of Pharmacists [2002] O.J. No. 4913; 223 D.L.R. (4th) 371

23 RCMP External Review Committee, Disciplinary Processes and Dispute Resolution Techniques in the RCMP, A Preliminary Report, p. 4

24 Ibid, pages 2 and 3

25 Ibid at page 15

26 The 1998 to 1999 Annual Report (in Part IV of the Report) of the Commission for Public Complaints Against the RCMP ( http://www.cpc-cpp.gc.ca/prr/anr/1998-1999-eng.aspx) discusses the release of Information about Disciplinary Measures and notes that the RCMP Commissioner announced that the RCMP would release the details of disciplinary action taken pursuant to a complaint.

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