Police Investigating Police – Final Public Report
Table of Contents
- Current Landscape
- Current Handling of RCMP Member Investigations – A Review of Legislation and Policy
- Case File Review – RCMP Investigations Assessed
- Different Review and Oversight Models
- Stakeholder Perspectives – What do others think is the right model?
- CPC Recommended Model for RCMP Member Investigations
- Complete List of CPC Findings and Recommendations
- Chair-Initiated Complaint
- Salient CPC cases
- Summary of additional relevant reports
- List of Public Submissions
- Provincial Police Oversight Legislation Chart
- Draft Model Legislation
- National RCMP Policies Relevant to the CIC
- Review and Oversight Profiles
- Oversight Models & Their Representations
- Offence Grid
- RCMP Operational Manual – Major Case Management Policy
Over the past number of years, the Commission for Public Complaints Against the RCMP (CPC) has identified concerns with respect to a number of high profile cases which raise serious questions about whether the RCMP can legitimately and impartially conduct criminal investigations into its own members, particularly in cases where police actions have resulted in serious injury or death.
The 2004 case of Kevin St. Arnaud, who was shot and killed by an RCMP member in British Columbia, was followed by another shooting death in October 2005, this time of Ian Bush, by another RCMP member in British Columbia. These tragic cases resulted in the CPC initiating separate reviews to assess the integrity of the investigations undertaken in each case. Shortly thereafter in 2007, the CPC released its report on the RCMP handling of investigations into alleged sexual abuse at the Kingsclear Youth Training Centre in New Brunswick. The report concluded that the inadequacies in the RCMP investigations were serious enough to create the perception of a cover-up. And most recently, in October 2007, the death of Robert Dziekanski at the Vancouver International Airport (following the RCMP use of the conducted energy weapon) served to bring the issue of police investigating police to the forefront once more. In addition to the British Columbia Government calling the Braidwood Public Inquiry into the matter, the CPC launched its own investigation into the death of Mr. Dziekanski.
The common question that emerges as a result of these four salient cases is whether or not the organization whose members' actions resulted in serious injury or death should be the same organization then charged with the responsibility to investigate the incident with the prospect of laying criminal charges. Fundamental to this is the question of whether this process can engender public confidence in the transparency, impartiality and integrity of the criminal investigation and its outcome.
In an effort to address these issues in greater detail and assess how other RCMP member investigations involving serious injury or death have been handled, the Chair initiated a public interest investigation in November 2007. The purpose of this public interest investigation is to assess the conduct of those unidentified RCMP members who have undertaken criminal investigations into the activities of other RCMP members, in cases that involved serious injury or death, that took place anywhere in Canada between April 1, 2002 and March 31, 2007.Footnote 1
This report represents the comprehensive analysis by the CPC Review Team who conducted independent research on the issue, which included an in-depth assessment of the RCMP's handling of several cases. As a member of the public pointed out, the CPC analysis of this issue has the "potential to make marked improvements to how we investigate police in Canada." To this end, the CPC:
- Undertook a detailed analysis of current media, political, and academic debate on the issue to determine a baseline for discussion;
- Sought public submissions on the issue to help inform the debate;
- Assessed the adequacy of current RCMP policy guiding member action when investigating another member;
- Reviewed a sample of 28 RCMP investigations where member actions were alleged to have resulted in serious injury, sexual assault or death cases between 2002 and 2007 (the appropriateness of each case was assessed against specific criteria which include: line management; level of response; timeliness; conduct; and compliance with policy); and
- Researched alternate investigative models and conducted interviews with domestic and international bodies.
All of the above was undertaken in an effort to help identify the most appropriate model to ensure the integrity of criminal investigations into RCMP members involved in serious injury, sexual assault and death cases in the future. The results of this investigation are presented within the following interim report.
2. Current Lanscape
The purpose of this chapter is to outline key issues related to the practice of police investigating police emerging from four perspectives: (a) media, (b) political, (c) academic, and (d) key concerns through public submissions to the CPC. By gauging the level of interest and the salient concerns expressed in these four areas, a clear baseline is established helping to inform the CPC's decision-making going forward. Understanding where we are at present is critical in helping to determine where to go next.
2(a) Media coverage
An in-depth study over the past seven years of (a) media and (b) parliamentary discourse on the issue of police investigating police reveals that:
- High profile cases (Dziekanski, Bush, Kingsclear, St. ArnaudFootnote 2) provide the impetus for discussion in both media and parliamentary settings;
- While the issue of police investigating police is never the primary focus, it is a secondary focus underlying the main issue in most instances; and
- Journalists and parliamentarians alike generally agree that the problem is the system, not the individual police officers.
The issue of police investigating police did not appear prominently in the mainstream news coverage until 2007. More than any other incident, the Dziekanski case spiked media interest in Canada and abroad, and the story continues to perpetuate media attention. Questions around the impartiality of RCMP investigations into their own are raised with coverage focused on the perceived bias during the investigation, particularly after it was reported that the RCMP Commissioner showed support for the RCMP officers under investigation. Some noted that the public is cynical of the Dziekanski investigation and feels that it is not being provided with enough meaningful information in a timely manner. Moreover, Mr. Dziekanski's mother's lawyer, Walter Kosteckyj, has already expressed criticism vis-à-vis the public inquiry for its failure to officially examine the issue of police investigating police.
Media opinion pieces stress the need for civilian review agencies to serve the public and the police.Footnote 3 They also view the existing police oversight processes as slow and lacking in impartiality and transparency. Alternate models of police oversight (outlined in detail in chapter 5) do not escape criticism. Despite its seeming independence from the police force, Ontario's Special Investigations Unit (SIU)Footnote 4 is still subject to scrutiny and criticism. With regards to the Alberta Serious Incident Response Team (ASIRT),Footnote 5 claims are made that the new unit does not go far enough because it should include members of the public on the review panel. Insofar as the CPC's Independent Observer Project,Footnote 6 the media have also reported public cynicism, including feedback of the recent participants who attested to limited involvement in the review process and drafting of recommendations. One such investigation involved an RCMP officer who pepper-sprayed a group of Aboriginals, including a seven-month-old baby, celebrating a soccer game victory on a Sechelt, B.C. reserve in July 2007.
While improving police training/procedures and developing independent oversight bodies were identified as positive changes that could be made to the current system, there is little or no mention of the special skills or experience police officers naturally have that are ideal for these types of investigations. What the media is sympathetic to, it seems, is the unfair role police officers have to play when investigating their own.
Though there are exceptions,Footnote 7 journalists generally agree that the problem is the system, not the police. Indeed, they remark on how independent oversight will help RCMP members as well, whose credibility is brought into question when they investigate themselves.
2(b) Political landscape
While the media has reported quite extensively on the issue, Canada's politicians have demonstrated less focus on the subject. With the House of Commons sitting only 136 days a year and the Senate even less, many topical issues are left on the sidelines, either because the chambers are not sitting or because a significant political issue overtakes all other issues, as exemplified by the in-custody death of Ian Bush in Houston, British Columbia. Potentially an issue of interest on a number of levels to opposition political parties, it was never raised in Parliament, likely because it coincided with the release of the report of the Commission of Inquiry into the sponsorship issue (Gomery).
From time to time, Members of Parliament (MPs) call into question the notion of the police investigating themselves but the topic is not raised outside the scope of the daily Question Period (i.e. Committee work). Generally, politicians tend to focus on investigations that would hold the government culpable. This is true in the Dziekanski case, as it was with the Chuck Cadman affair and the RCMP Pension issue. In the Dziekanski case, NDP MP Penny Priddy from Surrey North stated that the RCMP is in a conflict of interest position when investigating its own, and its involvement in such investigations should be removed.Footnote 8
Interventions around the adequacy of police oversight are less partisan and speak to the legislative measures that are before the House and any shortcomings of a particular bill. Here too, however, MPs take the opportunity to express their dissatisfaction. In an October 2004 debate on Bill C-6, An Act to establish the Department of Public Safety and Emergency Preparedness, Conservative MP Dave Chatters voiced his scepticism towards the effectiveness of the CPC and the RCMP complaint process.
Provincial Legislatures and Committees
Interest within provincial legislatures on the subject of police and issues surrounding police complaints was especially high in British Columbia, Saskatchewan and Manitoba. In these three provinces, over the course of the past number of years, specific incidents have led to an increased public interest in the issue of police conduct. Some highlights of issues of relevance are outlined below.
In British Columbia, there have been a number of studies into the police complaints process. On August 9, 2002, the Special Committee to Review the Police Complaint Process released its Second Report.Footnote 9 Members of the committee heard two general themes throughout the testimony: one, the police had to buy into the complaints and oversight system for it to work effectively; second, there was concern from some witnesses that the complaint process was "a bit like asking the fox to guard the henhouse."
In August 2005, the B.C. Government appointed B.C. Appeal Court Judge Josiah Wood to review the police complaints system in the province. Justice Wood presented the Report on the Review of the Police Complaint Process in British Columbia in February 2007.Footnote 10 One of Judge Wood's key findings suggested that the oversight powers of B.C.'s Police Complaints Commissioner (PCC) need to be "significantly enhanced if the current model of civilian oversight is to be effective." Judge Wood further suggested that more active involvement by the PCC in police investigations is a necessity.
The report contained 91 recommendations to improve the system. Among them, Judge Wood emphasized that the PCC be notified of any in-custody and police related death and that all in-custody and police related deaths be investigated by an external police agency. In February 2008, the B.C. government announced changes to the province's Police Act to implement the report's recommendations.
On March 4, 2009 the B.C. government introduced amendments to the Police Act: Bill 6 – 2009 Police (Misconduct, Complaints, Investigations, Discipline and Proceedings) Amendment Act, 2009 and Bill 7 – 2009 Police (Police Complaint Commissioner) Amendment Act, 2009. B.C. Solicitor General John van Dongen stated that the proposed legislative changes address "virtually all" of Judge Wood's recommendations. NDP public safety critic Mike Farnworth emphasized that the changes are insufficient because the RCMP, which constitutes the majority of patrol outside greater Vancouver and southern Vancouver Island, remains excluded from the Act's jurisdiction.
In Saskatchewan, of significant relevance was the case of Neil Stonechild, who, in 1990, was found dead in a field outside of Saskatoon after being last seen in police custody. On February 20, 2003, the Government of Saskatchewan appointed Mr. Justice D.H. Wright to conduct an inquiry into the circumstances surrounding the death of Mr. Stonechild and the pursuant police investigation.
The Commission of Inquiry Into Matters Relating to the Death of Neil Stonechild was released on October 26, 2004. The inquiry found that the police investigation was "superficial at best" and concluded prematurely, laden with "glaring deficiencies" which "go beyond incompetence or neglect." Justice Wright noted that local police officers have an "overly defensive attitude" when it comes to complaints against their own and lamented the wide gulf between the Aboriginal and non-Aboriginal population in the province, including a long-standing distrust of non-Aboriginal institutions (such as the police). Wright recommended, among others, a review and improvement of the procedures that deal with complaints from the public about police misconduct.
Judge Wright's recommendations led to several amendments to Saskatchewan's Police Act.Footnote 11 As a result of consultations between local police services and First Nations groups, the Public Complaints Commission was created as a new police oversight body on April 1, 2006. To ensure that the new oversight body was representative of Saskatchewan's diverse population, a provision was added dictating that one of the members of the board be of Métis origin, one a person of the First Nations ancestry, and one must be a lawyer. In addition, an amendment to the Act required that in a case of serious injury or death to a person in police custody or as a result of police actions, an independent observer from another police force or RCMP detachment be appointed. On April 3, 2006, Saskatchewan Justice Minister Frank Quennell emphasized that the new amendments are crucial to the integrity of the province's justice system.
Interest within the Manitoban legislature was focussed on issues such as street crime and police staffing levels. Not unlike the House of Commons, legislative committees have shown little interest in the issue of police investigating police. Circumstances surrounding a death of a civilian at the hands of a police officer brought the issue onto the forefront. On February 25, 2005, an off-duty East St. Paul Police officer, Derek Harvey-Zenk, hit and killed Crystal Taman in an automobile accident. Constable Harvey-Zenk had fallen asleep following a night of drinking with his colleagues. The crash was initially investigated by the East St. Paul Police-the officer's own police unit-and the Winnipeg Police Service Professional Standards Unit. The officer was sentenced to two years of house arrest. Public outcry followed the officer's sentence.
The issue was raised in the Manitoba legislature. On October 30, 2007, the Leader of the Opposition, Hugh McFadyen, observed on how such tragedies shake the public confidence in Manitoba's justice system. In response, Premier Gary Doer stated that a review of the independent prosecutor's office and decisions made in the Taman case would be investigated by a former Queen's Bench judge, former Justice Ruth Krindle. Notwithstanding these reviews, on December 5, 2007, an inquiry, headed by retired Ontario Superior Court Judge, the Honourable Roger Salhany, was called to review the handling of the case by the Manitoba police officers.Footnote 12
Judge Salhany's report entitled Taman Inquiry into the Investigation and Prosecution of Derek Harvey-Zenk was released October 6, 2008, and emphasized the poor quality of the investigation by the East St. Paul police. According to Judge Salhany, the investigation was: conducted in bad faith; "riddled by incompetence;" a cover-up; an example of "abysmal" note taking; and overall, a "misleading" investigation of Ms. Taman's death. In particular, Judge Salhany paid special attention to two police officers that handled the investigation who gave "untrustworthy and inconsistent" testimony.
Salhany pointed out the partial nature of (criminal) investigations conducted by police officers into the conduct of their own and recommended, among others, the creation of a separate provincial oversight body, independent of the police service, to conduct criminal investigations into the conduct of Manitoba police officers. Manitoba's government pledged to abide by all 14 of the report's recommendations. The creation of new oversight body is scheduled for 2009, at which time the Doer government intends to introduce changes to the provincial Police Act.Footnote 13
Additional relevant reports
Four additional high profile reports are of relevance to the PIP issue. Justice O'Connor's A New Review Mechanism for the RCMP's National Security Activities, David Brown's Rebuilding the Trust – Task Force on Governance and Culture Change in the RCMP, Ontario Ombudsman's Oversight Unseen: Investigation into the Special Investigations Unit's Operational Effectiveness, as well as Judge William Davies' Alone and Cold: Inquiry into the Death of Frank Paul were actively considered by the CPC in the development of its own recommended model for the RCMP.Footnote 14
A commissioned study by the CPC reviewed the evolution of the different academic trends in police investigation and governance in the 20th century with a focus on North America and the Commonwealth. Overall, 26 directly relevant academic and policy documents were identified and assessed for the purposes of this analysis.
CPC Finding No. 1: What is at issue today is no longer whether civilian review is desirable, but rather, how civilian involvement in investigations can be most effective.
In the context of Commonwealth and selected Western countries, until the late 1970s, there was such a complete lack of civilian involvement in police governance that the system was entirely governed by police investigating and disciplining themselves. Civilian review, developed in the 1970s, relied upon the adequacy and sufficiency of the original police investigation and the civilian review board would have little, or no, independent capacity or authority to authenticate or validate the quality, scope, or sufficiency of the completed investigation.
Civilian review of public complaint investigations was followed by demands for more aggressive and effective independent review. Political governance of the police has shifted away from the traditional models of reactive accountability. The new political accountability is part of the general trend toward a new public sector management standard that emphasizes closely managed self-regulation and governance, reinforced by external oversight. This new accountability is moving towards compliance through tighter regulation, audit, surveillance and inspection.
The problematic nature of PIP and the development of external civilian review suggest that the police have not been able to demonstrate either the willingness or the ability to govern the behaviour of their members at least in ways that create public and political confidence. The distance from, and respect for, the police has changed and more independent and informed media reporting translates into a far more aggressive, questioning and critical press coverage that resulted in a demystification of policing. Combined with an increasing surveillance of police activities through public technologies such as video cameras and vide-phones, the monitoring of the police by the public makes it harder for them to protect themselves from public criticism, review or opinion. This new scrutiny dramatically amplifies high profile incidents and elements of police deviance, feeding arguments for more civilian review and regulation.
From an evolutionary perspective, the current trend towards civilian-based investigative models evolved as a result of growing public and political frustration. At its most radical is a model with complete independent civilian control over the intake, investigation and response to public complaints of police misconduct.
Most academics agree, however, that removing police involvement from self-regulation is not the solution-internal self-governance paired with a degree of external accountability measures appear to be what most predict for the future. The trend towards more direct and expansive civilian involvement will continue unabated. It is believed that accountability will lie in more elaborate and effective modes of internal management and self-governance, rather than in more powerful forms of external governance and control. In short, police will remain part of the solution.
Research is sparse
A key finding of the literature review is the lack of direct research on the actual operations and activities of the various PIP models. There is very little empirically-based knowledge on PIP and most research to date is conducted at a general, descriptive level.
- There are almost no case studies of actual investigations of the various kinds of models or processes that would allow an analysis leading to the establishment of good practice;
- There is no research to clarify the necessary investigative skills required for civilian investigations;
- There is little detailed research analyzing the precise role of police culture in the investigations of complaints against the police;
- There has been little attempt to examine new models of police management and technologies employed to manage and document police activity and behaviour;
- Little research examines the role of police associations and collective bargaining agreements in inhibiting or assisting PIP or alternative investigations; and
- There is little knowledge about how various elements or aspects of PIP or its alternatives can contribute to, or undermine, the public legitimacy of the civilian oversight process.
This absence of direct research on the issue of police investigating police is an important finding because it demonstrates the need for further research and analysis in this regard. This report hopes to help bridge the current research gap on this issue by assessing academic, policy, alternate models and the real handling of police investigations.
General themes emerging in the literature
While overall research in this area is sparse, a number of general themes relevant to the issue of police investigating police are worth highlighting. The first theme questions whether the police can in fact conduct fair and impartial investigations of themselves. Some criticism focuses on the fact that police organizations are insular and protective by nature (with a distinctive and powerful organizational culture) which protects police from external criticism and review by defending and rationalizing police misconduct. Although it is acknowledged that the police may in fact conduct fair and impartial investigations, the public perception or suspicion that they cannot often prevails-the perception of a lack of impartiality or accountability can outweigh the reality in most instances.
The second theme relates to the ability of civilians to conduct effective investigations. While it is generally accepted that civilian investigations may appear more impartial given their very distance from the police culture (and work environment), the argument is made that civilians may lack a sufficient understanding of police work to conduct a full and thorough criminal investigation. The lack of legitimacy afforded to civilian investigators due to reduced levels of cooperation and limited access to necessary information by police can therefore hinder a civilian investigator's ability to undertake effective investigations.
Another trend focuses on the role police and the police culture can play in their own reform. The very nature of the police occupation involves protective and insular behaviours which may be beneficial for police work and can duly hinder an openness to serious reform and progressive development. There is a growing consensus, however, that a more open and accountable process is inevitable, and police officers are aware of the need for change. The solution, therefore, lies in an external review process that understands and addresses legitimate police concerns. There is a need to find ways to involve police in the process of review, investigation and reform. Essentially, to ensure a good working relationship with the police, they must meaningfully participate in the process of self-governance, thereby allowing them to become part of the solution.
And finally, at issue is whether the use of active or retired police officers compromises the independence and integrity of the investigation. It is argued that deploying active (seconded) police officers can ensure the investigative skill set and experience are present, but also places the investigation at risk for being impartial and constrained by shared occupational values and perspective that may affect the findings. Retired police officers may also possess the necessary expertise and since they do not have the same level of identification with the pressures of operational police culture, they may have developed more professional and independent views regarding the police function (especially in the case of senior level investigators in command positions).
In conclusion, the review of the literature revealed a consensus that traditional models of PIP are no longer defensible, either as an effective model for addressing public complaints or a method that satisfies public demands for accountability. Opinions differ, however, as to which civilian alternative for oversight is the most adequate. Civilian review models with limited review mandates are not the solution because of the realistic need for police cooperation and involvement. PIP review models should not be seen as undermining police responsibility and ability to govern their own behaviour. Many advocate, therefore, a promotion of hybrid police/civilian investigative and review models that recognize a legitimate but limited role for the police in the process, combined with a vigorous civilian oversight and investigation. It appears that the future role of the police in the investigative and review processes lies in encouraging more effective internal self-governance and accountability while developing more powerful but collaborative civilian oversight and investigative models.
CPC Finding No. 2: The very nature of conducting criminal investigations requires that police, to some extent, must be part of the solution.
2 (d) Key concerns identified through public submissionsFootnote 15
The CPC called for public submissions on the matter of police investigating police to help better inform the debate. Nineteen public submissions were made by a diverse range of stakeholders, such as the domestic and international oversight bodies; members of the public; provincial government representatives (including a provincial coroner); non-governmental organizations (NGOs); as well as police commissions and associations.
The most prevalent concern in the submissions was the timeliness of member investigations. One submission concluded that "one of the techniques used by the RCMP to just make everything go away is to put enough time between the event and the conclusion of the investigation [...]."Footnote 16 The provincial chief medical examiner stated that the lengthiness of a police investigation ultimately delays the inquest process. RCMP members subject to a complaint revealed that an investigation did not begin until six months after the complaint was filed, and took more than two years to complete.Footnote 17 This prompted a judge in this particular case to rule that "having considered the indifference, incompetence and untimeliness of the RCMP investigating this matter, I find that the police investigation of the Applicants amounted to a complete dereliction of duty and was an 'abuse of process.'"Footnote 18 Subject members complained of the emotional toll that the long, drawn-out investigation took on them.
The need for transparency in investigations was another concern repeatedly raised. Many submissions implied the lack of transparency in RCMP investigations (especially investigations into the action of its own members) leads the public to believe that it is not privy to what is really happening, but rather is fed an official, extremely vetted and biased version of the investigation. A provincial Department of Justice submission highlighted the public's "expectation of accountability and transparency."Footnote 19
An NGO submission emphasized that from the public standpoint, police investigations of their own are vulnerable to the suspicion of "cover-up" and because the investigators involved are perceived as biased with underlying departmental and personal interests, such investigations will never appear fair. This comes to the detriment of both the public and the police because the latter may be unfairly subjected to criticism due to the lack of transparency in the system.Footnote 20 Public perception of a biased investigation overrides the reality, previously noted by the first general theme identified by the academic review.
Many submissions expressed concern about the potential conflict of interest when police forces investigate their own members. A member of the public noted that "[a] conflict of interest is perceived to exist where there is a clear temptation to bias in the exercise of duties which should be impartially carried out for the public good. [...] The system of police investigating themselves seems a glaring anomaly." This perceived conflict of interest became closely interlinked with the Canadian public's mistrust of the RCMP, cynicism that has been fed time and again by a seemingly endless string of incidents in which the RCMP has appeared to choose insular, short-term self-interest over telling the truth."Footnote 21 Finally, another public submission noted that police officers cannot adequately investigate their fellow members because they are not at "arms length" from the individual being investigated.Footnote 22
3. Current Handling of RCMP Member Investigations – A Review of Legislation and Policy
At present, anyone (including a non-citizen) who has a concern about the conduct of an RCMP member can make a complaint to the CPC, the RCMP or the provincial government body concerned. Once a complaint has been received by the CPC, it is documented and forwarded to the RCMP for the initial investigation. The statute under which the CPC operates generally requires that the RCMP conduct the first investigation into complaints, after which the CPC is involved in its capacity as a review body. The CPC becomes involved in a review capacity only when requested to do so by a complainant who is dissatisfied with the RCMP's handling of its investigation into the complaint. However, at the discretion of the Chair, the CPC may also conduct its own investigation in the public interest or conduct a public interest hearing.
It is important to note that all matters relating to the administration of justice (which include criminal investigations) remain within the strict purview of the provinces as guaranteed under s. 92(14) of the Constitution Act. This means that the CPC's mandate is solely limited to the conduct of RCMP members generally, and does not include the authority to conduct criminal investigations on its own.
To adequately assess how the RCMP undertakes an investigation into another RCMP member, it is necessary to first determine what legislation and policy is currently in place to guide RCMP action in this regard. This section will review relevant (1) legislation, (2) proposed model for new RCMP Review Body, and (3) policies that direct RCMP response as it relates to RCMP member conduct causing serious injury or death.
There are no specific requirements under the Criminal Code regarding how an investigation into fellow police officers should be handled. And while specific reference to how police should investigate police is also absent from the Royal Canadian Mounted Police Act (RCMP Act), there are two features of this Act that warrant special attention given the impact on member behaviour and the handling of PIP cases.
1 (a) RCMP Act – s. 37 Conduct
Section 37 of the RCMP Act outlines eight guidelines for appropriate behaviour expected of RCMP members at all times. This section legislates the imperative need for members, as representatives of the RCMP, to act respectfully, dutifully and free from conflict of interest:
- 37. It is incumbent on every member
- (a) to respect the rights of all persons;
- (b) to maintain the integrity of the law, law enforcement and the administration of justice;
- (c) to perform the member's duties promptly, impartially and diligently, in accordance with the law and without abusing the member's authority;
- (d) to avoid any actual, apparent or potential conflict of interests;
- (e) to ensure that any improper or unlawful conduct of any members is not concealed or permitted to continue;
- (f) to be incorruptible, never accepting or seeking special privilege in the performance of the member's duties or otherwise placing the member under any obligation that may prejudice the proper performance of the member's duties;
- (g) to act at all times in a courteous, respectful and honourable manner; and
- (h) to maintain the honour of the Force and its principles and purposes.
1(b) Commissioner's Standing Orders
The Royal RCMP Act defines the "Commissioner's Standing Orders", in subsection 2(2) as:
The rules made by the Commissioner under any provision of this Act empowering the Commissioner to make rules shall be known as Commissioner's standing orders.
And while there are a broad number of Commissioner's Standing Orders outlined in the RCMP's Administrative Manual, three specific Standing Orders (Public Complaints) are applicable to the PIP context:
- Section 9: A member shall not investigate a complaint where that member may be in a conflict of interest situation
- It is important to note that the term "conflict of interest" is not defined further in the Orders.
- Subsection I.2.b: If, as a result of an investigation, a member is believed to have committed a statutory offence: 1. it is within RCMP primary jurisdiction, take the same action as you would for any other person.
- The Commissioner's Standing Orders 1.2.b 1. reference: "take the same action as you would for any other person" is consistent with the RCMP's current national Investigation Guidelines (outlined further later in this chapter).
- Subsection I.3.a: When you [Immediate Officer/Officer in Charge] are informed of a serious complaint against a member, including bribery, corruption or similar offence, inform the Criminal Operations Officers (CROPS), and follow division directives.
- While most divisions do have some form of directive to Commanders and/or investigators to refer, report, or consult with Criminal Operations Officers (CROPS) under specific circumstances, the terminology directing the process varies by division and is often vague in nature (e.g. some divisions require directing the matter to Criminal Operations Officers (CROPS) "by the most appropriate means," others state by "direct means" and timing ranges by from "immediately" to "as soon as practical").
1 (c) Provincial Police ActsFootnote 23
Only three provincial police acts specifically address the role of an independent oversight body in the handling of police investigations: (1) Alberta, (2) Saskatchewan and (3) Ontario. It is important to note that while chapter 5 of this report provides greater detail on the mandate, features and functioning of these domestic oversight bodies in Canada, this section will remain strictly focused on defining the legislative basis for each.
In the case of Alberta, section 46.1 of the Police Act established the province's integrated unit to investigate allegations of serious criminal conduct and incidents of serious injury or death resulting from the actions of a police officer.
- Paragraph 46.1(2)d of the Act establishes an "integrated investigative unit to conduct an investigation into the incident or complaint, which may include taking over an ongoing investigation at any stage" which the Minister of Justice and Attorney General may direct to do so in case of incidents involving serious injury or death (or a complaint thereof) of a person that may have resulted from the actions of a police officer, or "any matter of a serious or sensitive nature" regarding the actions of a police officer.
- Subsection 46.2(1) states that the Minister "may [...] authorize it to act as another police service for the purposes of conducting an investigation under section 46.1."
- According to subsection 46.2(3), the head of this unit "is deemed to be a chief of police."
- The Alberta Serious Incident Response Team (ASIRT) was the model proposed for such a unit. ASIRT is comprised of civilian, RCMP and municipal police personnel who are directed by the province's Director of Law Enforcement to conduct investigations in cases of serious injury or death.
In Saskatchewan, the 2005 amendments introduced to the Police Act, 1990 establish the Public Complaints Commission (PCC).
- Section 45(1) of the Act specifies that in cases of a complaint regarding the actions of a police officer, the PCC, in consultation with the chief of police, "shall cause an investigation into the complaint to be conducted [...] as soon as practicable."
- It applies to all public complaints, including to potential offences "pursuant to an Act or an Act of the Parliament of Canada" (section 45(2)).
- Section 45(3) outlines the possible course of action for the PCC in the case of a complaint. The PCC may choose to investigate the complaint itself (3a), refer it back to the police service subject of the complaint (3b), appoint an observer who shall monitor the police investigation (3c), or refer it to another police force (3d).
- According to section 45(6) the PCC has the authority to assume responsibility of the police investigation at any point it feels necessary, at which time the police service in question must stop its own investigation and provide all required assistance to the PCC.
- Subsection 91.1(1) dictates that in cases of serious injury or death, the RCMP providing policing services within a municipality must request that the Deputy Minister of Justice appoint an observer "from another police service or detachment of the RCMP" to oversee the investigation. This observer shall be given "full access" to the investigation and report on all aspects of the investigation.
- In the case of investigations without prior complaint, police investigate the incident on their own (with the exception of investigations that "directly relate" to a member of the public, in which case the police chief must advise the PCC as soon as practicable. At that point, the PCC takes charge over the matter).
In Ontario, the Police Services Act (section 113) and the Regulation 673/98, Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit, outline the procedures to follow in cases of criminal offences committed by the province's police officers. Section 113 of the Act dictates that an independent unit shall investigate the circumstances of serious injuries, deaths and allegations of sexual assault that may have resulted from the actions of police officers.
- Section 113(5) of the Act states that the director of the Special Investigations Unit (SIU) "may, on his or her own initiative, and shall, at the request of the Solicitor General or Attorney General," conduct investigations in cases of serious injuries and deaths that may have occurred as a result of criminal offences committed by police officers. Police officers have a duty to cooperate "fully" with the unit (section 113(9)).
- Section 3 of the Regulation stipulates that the chief of police must immediately advise the SIU should an incident that falls within the unit's mandate occur.
- SIU is the lead investigator which has priority "over any police force" during the course of the investigation (section 5 of the Regulation).
- According to section 11(1) of the Regulation, the chief of police may also conduct an investigation into an incident that the SIU is involved in with the condition that the SIU keep its "lead role" in the investigation.
(2) Proposed draft model legislation
As Canada's federal police force, the RCMP operates under contract with the provinces to provide provincial and municipal policing services. This process naturally gives rise to issues between the role of the federal body charged with review of RCMP conduct and the role of the government responsible for the administration of justice in each province.
To help address this issue and build an effective federal review regime for the RCMP, the CPC has drafted and publicly released proposed model legislation.Footnote 24 A number of specific proposed powers are of particular relevance to the PIP issue and would include the new RCMP Review Body's ability to: (i) undertake joint investigations, (ii) monitor RCMP investigations, and (iii) refer criminal investigations into RCMP member conduct to another police force.
- (i) Undertake joint investigations:
At present, the CPC does not have the legislated authority to undertake joint investigations,Footnote 25 which can result in duplication of effort when a number of bodies simultaneously undertake separate investigations into the same conduct. The proposed legislation would allow the new RCMP Review Body to undertake joint investigations, reviews, inquiries, audits or hearings with another body with comparable powers.
- (ii) Ability to monitor RCMP investigations:
At present, RCMP consent is required for the CPC to observe investigations into member conduct. In the absence of a mandated authority to monitor RCMP investigations, the RCMP is left to investigate itself without any external monitoring capacity. The proposed legislation would allow for the monitoring of any investigation with respect to the conduct of a law enforcement officer that the new RCMP Review Body deems necessary.
- (iii) Refer criminal investigations into RCMP member conduct to another police force:
Currently, the CPC is not mandated, under any circumstances, to refer an investigation into RCMP member conduct to another police force. The proposed model legislation would provide the new RCMP Review Body with the ability to refer an investigation to an outside police force. This would help to enhance public confidence in the process and the transparency of investigation as well as minimize the conflict of interest associated with the RCMP investigating itself.
(3) RCMP Policy
One of the main purposes of this investigation is to determine if current RCMP policy directing RCMP investigations into its members is adequate. Below is one of the criteria established in the November 26, 2007 CPC complaint to assess the RCMP handling of investigations into members involving serious injury or death.
CPC Assessment Criteria: Determine whether existing RCMP policies, procedures and guidelines are adequate to ensure that fair, effective, thorough and impartial investigations are carried out by RCMP members when investigating fellow RCMP members.
In order to make an assessment regarding the adequacy of RCMP policy, the CPC Review Team examined all national and divisional RCMP policies directly impacting how the RCMP investigates its own members. A request for every RCMP policy drafted between 2001 and 2008 that related to the handling of the PIP was provided by the RCMP for the CPC Review Team's assessment. A full list of policies reviewed for the purposes of this report can be found at Appendix 7.
In addition to the proposed External Investigations or Review policy that is currently being finalized by the RCMP, the following national policies were examined: Sexual Offences, Arrest, Emergency Vehicle Operations, Prisoners and Mentally Disturbed Persons, In-Custody Death, Human Deaths, Major Case Management, Guarding Prisoners, and the national Investigation Guidelines policy. A few of the abovementioned policies refer to the possibility of independent investigation into an incident involving RCMP members, specifically Prisoners and Mentally Disturbed Persons, In-Custody Death, Major Case Management and External Investigations or Review.
The Investigation Guidelines policyat the national level emphasizes that if it is within RCMP primary jurisdiction, actions taken must be the same as they would be "for any other person" (F.1.a), whereas if outside RCMP primary jurisdiction, the matter shall be referred to the relevant police department with the primary jurisdiction (F.1.b).
Key features, best practices and omissions in RCMP policies were analyzed and then compared across divisions to determine consistency of application. The key findings of this review are outlined below.
Independence of Investigator
The appointment of an "independent" investigator to ensure the impartiality of an investigation is found in several national RCMP policies. The national Prisoners and Mentally Disturbed Persons, In-Custody Death, Major Case Management and External Investigations or Review policies all require an independent investigator to be assigned in specific cases. The definition of what constitutes an independent investigator, however, varies by policy and division.
In some divisional policies (B, G and JFootnote 26 Divisions) the investigator is specifically defined as "independent" only when the member assigned is "from another district/area or another police force." Another divisional policy (EFootnote 27 Division) allows for the discretionary appointment of an "autonomous" investigator in incidents involving police pursuits and/or police vehicle collisions that result in serious personal injury or death.
Referral to Another Police Force
Some policies further recommend that member investigations should be referred to another police force entirely to better ensure impartiality. The RCMP's proposed national External Investigations policy and the New Brunswick (J Division) policy are the only two policies that recommend this as an option. It is important to point out, however, that there is no mandatory requirement for any RCMP member investigation to be automatically referred to another police force-this decision remains entirely discretionary at the operational level.
There is also no national policy that makes an administrative review mandatory for member investigations. An administrative review is defined in divisional policy as: "an independent review of all aspects of an incident undertaken with the express intent of identifying potential deficiencies in policy, training, equipment and/or officer survival techniques." The information gathered through an administrative review can assist the RCMP divisional Commanding Officer to more effectively guide an investigation and discharge accountability to the appropriate federal and/or provincial authorities.
The call for an administrative review is referenced in only two RCMP policies:
- (1) the national Reporting Discharges of Firearms policy orders the assignment of an "independent officer" to conduct the administrative review where appropriate. In cases of serious injury or death resulting from the actions of an RCMP's Emergency Response Team, the "Incident Commander from outside the Division" must be appointed in order to conduct the review.
- (2) At the divisional level, in Manitoba, an administrative review may be ordered at the discretion of the Administrative Services Manager for high profile investigations (defined as those investigations which may result in serious injury or death of a person, or lead to criticism of the RCMP). An independent officer "unassociated with the occurrence" and from a jurisdiction other than the one where the incident took place conducts the review. The recommendations that result from the review must then be directed to "the appropriate police centres for implementation."
Overall, the requirement for an administrative review can only be found in the context of a single national policy and one divisional policy. This results in the inconsistent application of administrative reviews across the country.
Scope of Policy – "Serious" offences only or "all" violations
In reviewing national RCMP policy, specifically Prisoners and Mentally Disturbed Persons, In-Custody Death, Human Deaths, Major Case Management and External Investigations or Review (as well as British Columbia's E Division policy), an issue emerged around the RCMP's definition of what constitutes a "serious" offence that warrants an independent review.
National policy is focused on cases of serious injury or death to a person, at which point the assignment of an independent investigator becomes a possible course of option. In the E Division Investigation Guidelines policy, the District Officer is invited to appoint an independent investigator in cases of "serious personal injury and/or death" resulting from police pursuits or police vehicle collisions.
In some divisional policy (B, D, G and J DivisionsFootnote 28) the definition of a serious offence is broadened to any "violation or alleged violation of the Criminal Code, or any other federal or provincial statutory offence" committed by a member. This thereby eliminates the need for the detachment or division to make a determination of what it considers a "serious" offence when calling an independent review.
Policy – Mandatory Actions versus Discretionary Provisions
Below is a summary of the mandatory versus discretionary actions that are prescribed in the national and divisional policies.
|Appointment of independent investigator (from another district/or another police force)||B, G, J Divisions,
National In-Custody Death,
National Prisoners and Mentally Disturbed Persons
|National External Investigations or Review,
E Division (in case of police pursuits and vehicle collisions resulting in serious injury/death)
|Referral of investigation to another police force||J Division policy: Offences by Members||National External Investigations or Review|
|Administrative review||National policy Reporting Discharges of Firearms||D Division
|Policy refers to "any" violation or alleged violation of the CC or any other federal or provincial statutory offence||B, D, F, G, J, KFootnote 29 divisional Investigative Guidelines|
National versus Divisional Policy
Each division with a formal "investigations" policy has its own version with differing guidelines as to how member-committed offences should be handled. Only six (of the 14) divisions addressed the issue of member investigations specifically. The table below illustrates some key differences between the newly developed, though not yet implemented, national policy on External Investigations or Review and policies at the divisional level.
|NATIONAL POLICY||DIVISIONAL POLICIES|
Given the absence of direction prescribed in legislation regarding how members should investigate other members, the adequacy of policy to ensure impartiality, transparency and rigour in this process becomes all the more paramount.
Currently, inconsistency is found in policy content and application across divisions. While the RCMP has developed a number of policies relating to how criminal investigations should be undertaken generally, very few policies address the issue of RCMP member-committed offences specifically. This is a serious concern.
The sheer volume and variety of RCMP policies with implications for the issue of police investigating police is overwhelmingly large (e.g. hundreds of pages of policy relevant to the PIP were reviewed for this report alone). This policy "overload" poses a great threat to the RCMP's operational effectiveness. The very nature of front-line policing requires that direction be provided in a format that is clear, concise and easy to access.
While the new proposed national policy External Investigations or Review takes active steps towards providing consolidated guidance as it relates to the PIP, the content remains vague and far too much discretion remains with the divisions (divisional Commanding Officers, Officers in Charge or Criminal Operations Officers) to determine an appropriate response.
One key feature of the national Investigation Guidelines (and repeated in divisional policy) which bears closer examination is the following passage regarding how an investigation into another member must be handled:
"take the same action as you would for any other person" (F.1.a). While the intention of the RCMP may be an honourable one, given the repeated contention in policy that the handling of an investigation into another member should be managed exactly like any other investigation (meaning without bias), the very nature of an investigation by one police officer into another is fundamentally different than police investigating a member of the public for the exact same crime. Police are held to higher account by the very nature of the work they do. Like other professions that directly impact the safety and welfare of those they serve, there is a public expectation requiring that a higher standard of behaviour be upheld.
In the words of Albert Einstein, "no problem can be solved from the same consciousness that created it." By exposing the police thinking that investigations into its own members should be handled like any other investigation, we begin to identify the root philosophy guiding individual member behaviour. In most cases (while there are always exceptions) problems associated with police investigating themselves are rooted in the very process by which they must operate and not in individual behaviour. Recommendations to address this and other policy concerns are outlined in chapter 8.
CPC Finding No. 3: RCMP Policies, while voluminous, are inconsistent and do not adequately address the handling of member investigations.
CPC Recommendation No. 1: Overall, it is the CPC's contention that criminal investigations into members should not be treated the same as any other criminal investigation.
4. Case File Review – RCMP Investigations Assessed
Before addressing the findings of the RCMP case file review, it is first important to set out the methodology employed to develop the pool of cases from which the CPC's assessment was drawn. This administrative process reveals critical issues in the RCMP's administrative handling and management of its own member investigations. The methodology and key administrative findings are outlined below.
4 (a) Methodology
Stage 1: CPC Selection Criteria
To ensure the CPC established a strong pool of the most relevant RCMP cases for review, a timeframe of April 1, 2002 to March 31, 2007 was selected in the initial laying of the complaint. This timeframe ensured that the most recent files could be reviewed and enhanced the likelihood that the police and civilians involved in each case would be more readily accessible to interview. This task could have proven more difficult had the investigative timeframe been broadened.
Bearing this five-year timeframe in mind, the CPC Review Team proceeded to identify specific selection criteria to determine which cases would be included in the review. As per the parameters of the complaint, the three general categories for review included: (1) Assault Causing Bodily Harm; (2) Sexual Assault; and (3) Death.
Stage 2: RCMP File Identification
To facilitate the file identification process, the CPC liaised with the RCMP who assisted by identifying a national point of contact from its Community, Contract and Aboriginal Policing Section to manage all CPC-related requests.
The RCMP further provided divisional contacts to facilitate the reviews. And as per the established CPC selection criteria, these divisional contacts (RCMP Criminal Operations Officers in each division) were then asked to identify all files in their respective divisions related to criminal investigations of RCMP members by other RCMP members between April 1, 2002 and March 31, 2007 involving assault causing bodily harm; sexual assault; and death, including death caused by operating a personal motor vehicle (PMV).
Working from the explicit terms of reference and criteria outlined in the Chair-initiated complaint, the CPC and RCMP jointly determined that the best way to identify potential cases for consideration in the investigation was to have the RCMP search their records databases identifying the various sections of the Criminal Code related to charging offences of assault, sexual assault and death. In so doing, all potential cases could be captured. However, many divisions unilaterally searched their databases and then made a determination of those cases that fit within the terms of reference.
Once the cases were identified by the RCMP, they were then sent to the CPC. The CPC investigators manually looked at each case and made a determination as to whether or not each case fit within the parameters of the investigation.
The RCMP was further instructed to identify all possible files for the CPC Review Team, even cases where relevance was questionable.
Stage 3: CPC Preliminary Review of RCMP Files
A combined total of approximately 600 RCMP cases were initially identified across the country that fit the timeframe and offence category.
Figure 1: Files Submitted for Consideration by Division
- "K" Division (Alberta): 339 (56%)
- "D" Division (Manitoba): 95 (16%)
- "E" Division (British Columbia): 67 (11%)
- "G" Division (Newfoundland and Labrador): 63 (11%)
- "F" Division (Saskatchewan): 15 (3%)
- "J" Division (New Brunswick): 4 (1%)
- "V" Division (Nunavut): 3 (1%)
- "M" Division (Manitoba): 2 (0%)
It is critically important to note that access to the data on member investigations could not be retrieved through RCMP National Headquarters due to the lack of centralized tracking or monitoring of this type of information on a national scale. The CPC Review Team was therefore required to work with divisional contacts to get access to the necessary information for the purposes of this report.
Like National Headquarters, most divisions do not track member investigations in a formal way. As such, most divisions generated relevant files for the PIP analysis by searching through divisional records housed at their respective Headquarters using key word searches. Some divisions were better able to narrow the scope of their search to fit the parameters of the review through effective record-keeping processes making for easier retrieval, while other divisions did not have the same capacity. For example, due to record-keeping processes and time constraints, Alberta (K) Division simply provided everything that could possibly fit the parameters of the complaint. This helps to explain the higher number of cases received from K Division relative to the rest of the country.
CPC Finding No. 4: The lack of national and divisional data collection-or monitoring capacity-for member investigations (combined with varied divisional RCMP record-keeping and retrieval methods on this issue) demonstrates a lack of attention being placed on member investigations.
Where a determination needed to be made as to whether an RCMP file was relevant to the parameters of the public interest investigation, the files in question were assessed by the CPC's two investigators assigned the task. Where necessary, the CPC investigators were then deployed to the divisions in question to undertake a file review and make a determination of relevance.
Upon review by the CPC investigators, which in some cases involved travelling to various divisions and individual detachments, approximately 150 RCMP cases were deemed relevant to the parameters of the public interest investigation.
Stage 4 – CPC Sample Narrowed and Files Retrieved for CPC Review
Recognizing that it would be prohibitive to review all relevant cases in each of the three categories, it was determined at the outset that a smaller, more manageable number of cases would be selected for a full-file review.
This sample size was selected in order to narrow the number of case reviews to a more reasonable amount, thereby allowing for a comprehensive examination of the chosen cases, while respecting that a reasonable length of time would be required for each investigation to be undertaken.
To secure a random sample for review, cases were first categorized by RCMP region/division, and by offence category (assault, sexual assault, death). From this list, a random selection was made to ensure that every RCMP Region and every offence category was represented.
It is important to note, as per the map outlined next, that the RCMP's Central Region was not represented in the random sample because no cases were identified by Quebec (C) Division; Ontario (O) Division; and HQ National Capital Region (A) Division that fit the parameters of the Chair-initiated complaint. Furthermore, no files were identified by Nova Scotia (H) Division, and Prince Edward Island (L) Division. And while a small number of files were initially identified by the RCMP for New Brunswick (J) Division and Yukon Territory (M) Division, these files did not meet the criteria set out in the Chair-initiated complaint and were therefore excluded. Of concern to the CPC is the absence of any cases identified by the bulk of the Maritimes, given the policing role (all levels of policing) undertaken in Nova Scotia (H) Division, New Brunswick (J) Division, and Prince Edward Island (L) Division, in particular.
Figure 2: Number of RCMP Cases Examined by Division
Municipal, Provincial, Federal and First Nations Policing Activities
- "K" Division (Alberta): 4
- "D" Division (Manitoba): 5
- "E" Division (British Columbia): 7
- "F" Division (Saskatchewan): 4
- "G" Division (Newfoundland and Labrador) 1
- "H" Division (Nova Scotia)
- "J" Division (New Brunswick):
- "L" Division (Prince Edward Island)
- "V" Division (Nunavut)
- "M" Division (Yukon)
Federal Territorial and First Nation Policing Activities
- "G" Division (Newfoundland and Labrador): 2
- "M" Division (Manitoba)
Federal and Territorial Policing Activities
- "V" Division (Nunavut)
Federal Policing Activities Only
- "A" Division (National Capital Region)
- "C" Division (Quebec)
- "O" Division (Ontario)
The CPC Review Team investigators analyzed all files and written material provided by the RCMP to assess the appropriate handling of each case against the Chair-initiated criteria and terms of reference (specifically: line management, level of response, timeliness, member conduct, and compliance with policy). In addition, the investigators also sought to determine overall, whether the investigative techniques used were appropriate (or whether others should have been employed), and whether the treatment of the subject member and witness officers was appropriate in each case.
When the final selection of cases was made, if any of the original cases selected were deemed to be outside the parameters of the public interest investigation, the file was removed from the sample and a new file was then randomly inserted in its place. This process ultimately resulted in a random sample of 25 cases for review chosen from across the country. In addition, three cases previously reviewed by the CPC were added to the investigation, resulting in a total overall review of 28 cases.
Overall, of the 28 investigations reviewed, seven (25%) were from British Columbia (E) Division; five (18%) were from Manitoba (D) Division; five (18%) were from Nunavut (V) Division; four (14%) were from Saskatchewan (F) Division; four (14%) were from Alberta (K) Division; two (7%) were from Northwest Territories (G) Division; and one (4%) was from Newfoundland and Labrador (B) Division.
Types of cases reviewed by category
Figure 3: Total Cases
- Assault Causing Bodily Harm: 14.50%
- Sexual Assault: 8.29%
- Death: 6.21%
Of the overall 28 cases reviewed, six were death cases, another eight involved sexual assault and the 14 remaining cases were assault causing bodily harm.
Stage 5: Cases for Full-Field Investigation
After completing a comprehensive file review of the 28 cases, the CPC Review Team investigators then recommended that full-field reviews be undertaken for a select number of cases. The general criteria used by the investigators to determine whether a full-field review should be pursued included: the severity of the alleged offence, the charge(s) laid (under- or over-charging or non-charging where it may have been deemed appropriate to do so), any aberrations or questionable practices, as well as best practices. It is important to highlight that one case was selected specifically because it was deemed to be a good example of how an investigation could be undertaken by police due to the exceptional quality of the administrative review.Footnote 30
Overall, eight cases (which included the best practice case) were selected for full-field review. This included five cases from the RCMP-drawn files, as well as one case that was considered a "best practice" example, and three other cases specifically drawn from CPC-housed files that fit the parameters of the Chair-initiated complaint.
Figure 4: Divisional Comparison – Full Field
- "B" Division (NF): 1.13%
- "D" Division (Manitoba): 1.13%
- "E" Division (British Columbia): 2.24%
- "F" Division (Saskatchewan): 2.24%
- "K" Division (Alberta): 1.13%
- "V" Division (Nunavut): 1.13%
The final stage involved interviewing the subject and witness officers as well as civilians involved in the cases. The interviews began in October 2008 and included trips to various divisions and detachments. In total, 31 members were interviewed regarding the files selected for in-depth review. Thirteen civilians were asked to be interviewed for the purposes of this report but refused or did not respond to our request for an interview. One comment from a family member associated to one file stated: "It won't do any good, they have all been promoted and transferred out" when referring to the RCMP members involved.
Below is a table that briefly summarizes the location, type of offence, and outcome of each of the 28 cases. Each of the full-field investigations is shaded.
|Case Number||Type of Offence||Description||Status/Outcome|
|1. Newfoundland and Labrador
|RCMP member accused of sexual relations with young persons while on duty in the victims' community.||Accused member criminally charged with one count of Sexual Assault (s. 271 C.C.) and one count of Sexual Exploitation (s. 153 C.C.).Accused member pleaded guilty to the charge of Sexual Exploitation and was sentenced to a 12-month conditional sentence followed by 12 months probation. The charge of Sexual Assault was withdrawn. Accused member resigned from the RCMP.|
Case File Review
|Sexual Assault||Unidentified RCMP member accused of sexually assaulting civilian while lodged in detachment cell block.||No charges recommended.
No charges laid.
Case File Review
|Assault Causing Bodily Harm||RCMP members accused of assaulting civilian during booking.||No charges recommended.
No charges laid.
Case File Review
|Sexual Assault||RCMP member accused of sexual assault against another RCMP member in a private residence.||Accused member criminally charged with Sexual Assault
(s. 271 C.C.)Accused member acquitted of criminal charge at trial.
Case File Review
|Assault Causing Bodily Harm||RCMP members accused of assaulting civilian during arrest.||No charges recommended.
No charges laid.
|In-Custody Death: Member-Involved Shooting (fatal)||RCMP member accused of fatally shooting a civilian following an arrest.||No charges recommended.
No charges laid.Result of coroner's inquest:
Found no fault on the part of the members involved.
|7. British Columbia
Case File Review
|Assault||Members of RCMP ERT accused of using excessive force against a civilian during arrest.||No charges recommended.
No charges laid.
|8. British Columbia
Case File Review
Sudden Death – Drowning
|RCMP members accused of the drowning death of a civilian following a vehicle pursuit.||No charges recommended.
No charges laid. Result of coroner's inquest:
Found no fault against the RCMP.One of the members involved in the incident had since retired.
|9. British Columbia
Case File Review
|Assault||RCMP members accused of abducting and assaulting a civilian.||No charges recommended.
No charges laid.
|10. British Columbia
Case File Review
|Historical Sexual Assault||RCMP member accused of sexual assault against a civilian.||No charges recommended.
No charges laid.
|11. British Columbia
Case File Review
|Assault Causing Bodily Harm||RCMP member accused of assault causing bodily harm against a civilian during questioning.||Accused member criminally charged with three offences: Assault Causing Bodily Harm (s. 267(b) C.C.); Torture (s. 269.1 C.C.); and Obstructing Justice (s. 139 C.C.)Accused RCMP member pled guilty to Assault Causing Bodily Harm; sentence unknown.Charges of Torture and Obstructing Justice were withdrawn.One RCMP member at the scene of the assault was charged with Code of Conduct offence and forfeited 10 days pay. No charges recommended. No charges laid.Auxiliary constable at the scene of the assault was dismissed. No charges recommended. No charges laid.|
|12. British Columbia
|Assault – Excessive Force||RCMP members accused of assaulting a civilian during arrest and booking.||No charges recommended.
No charges laid.
|13. British Columbia
|Historical Sexual Assault||RCMP members accused of sexually assaulting two young persons.||No charges recommended.
No charges laid. One of the members involved resigned and the other member retired.
Case File Review
|Sexual Assault||RCMP member accused of sexually assaulting a civilian in a private dwelling.||Accused member criminally charged with Sexual Assault
(s. 271 C.C.)Accused member pled guilty to the named offence and received a suspended sentence with 12 months probation.Accused member charged with Code of Conduct offence and forfeited 10 days pay.
Case File Review
|Assault||RCMP members accused of assaulting civilian while lodged in detachment cell block.||No charges recommended.
No charges laid.
|Fatal Motor Vehicle Collision||RCMP members accused of fatally wounding a pedestrian who was lying on the roadway with their marked police car while responding to a call.||No charges recommended.
No charges laid.
|In-Custody Death||Deceased suffered a fatal stroke while in cells after being arrested for public drunkenness and causing a disturbance. (Prior to the arrest, the deceased was treated and released from hospital for injuries suffered from a physical altercation with another civilian.)||No charges recommended.
No charges laid.Result of coroner's inquest:
Found that death was in no way caused by another person.
|18. Northwest Territories
Case File Review
|Assault||RCMP member accused of assaulting civilian on two separate occasions during arrest and booking.||No charges recommended.
No charges laid.
|19. Northwest Territories
Case File Review
|Sexual Assault||RCMP member accused of sexually interfering with a young person.||No charges recommended.
No charges laid.
Case File Review
|Sexual Assault||RCMP member accused of assault and sexual assault against a civilian while in cells.||No charges recommended.
No charges laid.
Case File Review
|In-Custody Death||Deceased was arrested by RCMP members and lodged in cells where he later died.||No charges recommended.
No charges laid.Result of Autopsy:
Death by natural causes.
Case file review
|Assault Causing Bodily Harm (Excessive Force)||RCMP members accused of excessive force while attempting to subdue a combative civilian in detachment cells.||No charges recommended.
No charges laid.Civil litigation pending.
|Assault Causing Bodily Harm||RCMP member accused of excessive force against a civilian during arrest.||Accused member criminally charged with Common Assault
(s. 266 C.C.)
Criminal charge against accused member stayed.Result of Code of Conduct investigation:
Allegation of excessive force was unfounded.
Case File Review
|Assault||RCMP member accused of excessive force against a civilian during arrest.||No charges recommended.
No charges laid.
Case File Review
|Improper Use of Force – Assault||RCMP member accused of assaulting a civilian during booking.||No charges recommended.
No charges laid.
Case File Review
|Assault||RCMP member accused of assaulting a civilian during the execution of a search warrant.||No charges recommended.
No charges laid.
Case File Review
Member-Involved Fatal Shooting
|RCMP members fatally shot a civilian who had taken a young person hostage.||No charges recommended.
No charges laid.
|Assault Causing Bodily Harm||RCMP members accused of excessive force against a civilian during arrest.||No charges recommended.
No charges laid.
4 (b) CPC Assessment of RCMP Cases
The 28 files reviewed by the CPC investigators were assessed on the criteria established in the November 26, 2007 complaint, outlined below.
Standards Against Which Conduct is to be Assessed
1. Whether the RCMP members involved in these investigations conducted the investigations free of actual or perceived conflict of interest, whether they responded appropriately and proportionately to the gravity of the incident, whether they responded in a timely fashion and whether their conduct adhered to the standards set out in section 37 of the RCMP Act.
- (a) Line management
- Whether any actual or perceived conflict of interest.
- Appropriateness of management structure and reporting relationships.
- (b) Appropriate level of response
- Whether RCMP investigative team response to the incident was appropriate and proportionate to the gravity of the incident.
- Whether qualified investigators have been assigned.
- (c) Timeliness of the response
- Whether members of the RCMP investigative team responded in a timely fashion to the incident.
- (d) Conduct
- Whether the conduct of members of the RCMP investigative team during the course of the investigation was consistent with section 37 of the RCMP Act.
2. Whether these same RCMP members complied with all appropriate policies, procedures, guidelines and statutory requirements for such investigations.
A detailed assessment of each of the CPC complaint criteria follows.
Criterion 1(a) Line Management: any actual/perceived conflict of interest; appropriateness of management structure and reporting relationships
A baseline definition of what constitutes "appropriate" line management for the RCMP's handling of an investigation into another member was developed in order to effectively compare each individual case against established criteria for assessment. The key features of appropriate line management include the following:
- Sufficient physical and personal distance between the subject member and the primary investigator/investigative team tasked with the investigation.
- Physical distance defined as investigation handled by a different detachment/division from the subject member's home detachment (or by an external police force entirely).
- Personal distance defined as subject member not personally known to the investigative team members.
- Particular attention must be paid to:
- The primary investigator's physical and personal distance from the subject member;
- Appropriate use and independence of specialized services used in the course of the investigation (polygraph examiner, accident reconstructionist, etc.).
- Adequate investigative team makeup to undertake the task (i.e. primary investigator plus another investigative team member at a minimum; primary investigator should be at least one rank higher than the subject member being investigated).
- Investigating member self-identification of conflict of interest adequately addressed (i.e. where self-identification occurs, appropriate removal from investigative team occurs).
This baseline criteria was assessed against the 28 cases reviewed. Some of the key findings from the CPC investigators' reviews are highlighted below.
1 (a) i. Physical and personal independence of investigative team maintained
Given the significant authority and level of decision-making afforded the position of the primary investigator, it was particularly important to determine what differential, if any, existed between the primary investigators' level of independence relative to the subject member. The proximity was not identified in five of the 28 cases. Three members did not respond to the questionnaire provided them. One investigator did not recall whether he knew the subject member prior to the investigation, and another investigator would not answer the CPC's questions given the civil litigation pending.
The CPC defined "personal knowledge" as any contact with the subject member prior to the incident, which could include:
- working with-or under the supervision of-the subject member prior to the incident (including physical or telephone contact);
- mutual participation or attendance at courses, seminars or any other training event;
- engagement in a function of a social or personal nature which could include an RCMP mess function, a seasonal event (Christmas party), golf tournament or retirement function.
This definition of "personal knowledge," outlined above, was used to assess the level of independence between the RCMP primary investigators and the subject members for each of the 28 cases.
CPC Finding No. 5: Overall, personal knowledge of subject member for primary investigators occurred 25% of the time and 4% of primary investigators were from the same detachment as the subject member.
Figure 5: Independence of Investigative Team – Primary Investigators
- Subject Member Personally Known: Same Detachment: 4%
- Subject Member Personally Known: Different Detachment: Same Division: 21%
- Subject Member Personally UnKnown: Same Detachment: 0%
- Subject Member Personally UnKnown: Different Detachment: Same Division 57%
- Different Division: 0%
- Outside Police Force: 0%
- Not Specified: 18%
The CPC sought to assess whether the challenges faced by northern and remote RCMP detachments accounted for the bulk of the primary investigators with personal or physical proximity to the subject member. The CPC analysis revealed that of the primary investigators polled, 26%Footnote 31 identified themselves as "personally knowing" or "from the same detachment" as the subject member. Of these 26%, 14% were from a remote or northern posting (with 7% coming from Nunavut (V) Division and 7% from Northwest Territories (G) Division respectively).
CPC Finding No. 6: As graphically depicted below, there was a slightly higher likelihood of primary investigators personally knowing the subject member (14%) in remote and northern postings than in other more centralized locations (12%). However, there does remain a large number of primary investigators (12%) from more centralized divisions where external assistance is more readily accessible.
Figure 6: Investigator's Knowledge of Subject Member – Primary Investigators
Northern Detachments – 14%
Different Detachment; Immediate Colleague; Personally Known
- "V" Division (Nunavut) – 2 (7%)
- "G" Division (Northwest Territories) – 2 (7%)
Non-Northern Detachments – 12%
Different Detachment; Immediate Colleague; Personally Known
- "F" Division (Saskatchewan) – 1 (4%)
- "D" Division (Manitoba) – 1 (4%)
Same Detachment; Immediate Colleague; Personally Known
- "E" Division (British Columbia) – 1 (4%)
Please note, the percentages in this graph have been rounded up and are approximate figures, which explains the slightly higher percentage 26% (than in previous "target" graph, which was represented as 25%).
Use and independence of specialized services
Equal attention must be made to ensure the independence of specialized services used in member investigations. These specialized services could include, but are not limited to, polygraph examiners, accident reconstructionists and provincial forensic science laboratories. Lack of independence in the specialized services used could raise a risk of real or perceived conflict of interest.
Out of the 28 cases reviewed, only four used specialized services, including a polygraph examiner in two cases, an accident reconstructionist in one case and a provincial transport vehicle safety examiner. All professionals used by the RCMP in each of these three cases were from different detachments, and in one case from a different division.
One of these four cases could be perceived as lacking independence in the use of specialized services. The accident reconstructionist used in a fatal motor vehicle accident that occurred in Saskatchewan was from a detachment in the same division. Recommendations around the degree of independence believed necessary to ensure impartiality and the absence of conflict of interest are addressed later.
CPC Finding No. 7: Overall, in the opinion of the CPC investigators, the use of expert witnesses in the cases was appropriate.
Where an expert was required, members did use specialist services available. In a police motor vehicle collision fatality, not only did the RCMP call in forensic personnel, but also requested an accident reconstructionist with the highest level of qualifications, in addition to a provincial ministry of transport vehicle safety examiner as well as an independent member of the First Nations community.
In the two cases reviewed where a polygraphist was used, the examiner was from another division and did not know the subject member.Footnote 32
1 (a) ii. Appropriate investigative team makeup
Of the 28 cases reviewed, 17 of these had only one primary investigator assigned to a member investigation. Five of the cases had two investigators assigned, five cases were done by a Major Crime Unit (with four to six investigators assigned), and one case had three General Investigation Section (GIS) investigators assigned.
Figure 7: Number of Investigators
- 1 Investigator – 17 (60%)
- 2 Investigators – 5 (18%)
- 3 Investigators (GIS) – 1 (4%)
- 4-6 Investigators (MCU) – 5 (18%)
Furthermore, of the 28 RCMP files reviewed, seven of the files were investigated by a primary investigator of the same or lower rank as the subject member.Footnote 33
Figure 8: Primary Investigator's Rank Relative to Subject Member
- High Rank: 19 (68%)
- Same Rank: 6 (21%)
- Lower Rank: 1 (4%)
- Unknown: 2 (7%)
This rank differential between the primary investigator and the subject member is deemed to be inappropriate given that it risks the potential for intimidation of the primary investigator by the higher ranking subject member. The possibility also exists that the primary investigator could potentially be supervised at a later date by the subject member, thereby creating the potential for a junior ranking primary investigator affording the higher ranking subject member preferential treatment in favour of future considerations. This potential conflict of interest must be taken into consideration.
The CPC recommends that the rank of the primary investigator be at least one rank higher than that of the subject member. The purpose for this is to avoid possible intimidation of the primary investigator by the higher ranking subject member.
CPC Recommendation No. 2: The CPC recommends that the rank of the primary investigator must be at least one rank higher than that of the subject member.Footnote 34
In addition, assigning a single investigator to a member investigation (as was the case in 17 of the 28 cases reviewed) is a particular concern. Interviewing anyone involved (particularly the subject member) is best conducted by a two-member team. A one-member investigation would contribute to the potential for (or perception of) a conflict of interest.
CPC Finding No. 8: Overall, the number of team members assigned to the 28 investigations was inadequate.
The conflict of interest issue must be taken into consideration in these cases. No explanation of the rationale (be it resources, location or seriousness of the offence) will satisfy the public or other special interest groups that these investigations are unbiased.
Ideally, a minimum of two members assigned to conduct the investigation would assist in expediting the investigation by ensuring that all aspects of an investigation could continue regardless if one member of the team is absent.
CPC Recommendation No. 3: In order to reduce the length of time to conduct statutory investigations against RCMP members, it is recommended that member investigations be assigned to a team of (minimum) two members in a specialized investigative unit.
For those investigations involving more than a single investigator (five files that were investigated by the Major Crime Unit (MCU) and the other files where two team members were assigned) the number team makeup is deemed overall appropriate.
1 (a) iii. Investigating member self-identification of conflict of interest adequately addressed (i.e. where self-identification occurs, appropriate removal from investigative team occurs)
There was only one of the 28 cases where self-identified conflict of interest occurred. This file was from a northern community in a small detachment. The investigation had originally been assigned to the Officer in Charge of the Major Crime Unit (MCU) at the detachment; however, the member declined to investigate given that he was a personal friend of one of the subject members.
The self-identification of conflict of interest by the RCMP member was handled appropriately in this case given that he removed himself from the case. However, the results were less than desirable. The file was then eventually assigned to a Constable with approximately one years experience in the MCU. The Acting Criminal Operations Officer at the time of the investigation indicated to the CPC investigators that in hindsight this file should have been assigned to an outside municipal police service given that the injuries were severe.
Overall Assessment of CPC Criterion 1 (a) Line Management
Based on the preceding analysis, the graph below summarizes the CPC investigators' overall assessment of the total level of appropriateness of the RCMP line management in the 28 cases reviewed. A total of 19 cases (68%) were deemed to be handled either partially or entirely inappropriately. Of particular concern was the use of a lone investigator and the primary investigator's personal knowledge of the subject member.
CPC Finding No. 9: Overall, the CPC found the structure and reporting relationships of the 28 cases reviewed to be partially or entirely inappropriate (68%).
Criterion 1(b) Appropriate Level of Response: response appropriate and proportionate to gravity of incident and whether qualified investigators have been assigned.
A definition of what constitutes an "appropriate" level of response with regards to the RCMP's handling of an investigation into another member was developed in order to effectively compare each individual case against established criteria for assessment. The key features of what constitutes an "appropriate" level of response include the following:
- Interviews of subject member and witnesses appropriate as well as appropriate access to information.
- Use of expert witnesses appropriate (i.e. polygraphists, accident reconstruction personnel, identification specialists and other outside agencies were utilized when and where necessary).
- Referral of investigation appropriate relative to the seriousness of the allegation (e.g. sexual assault, assault with a weapon, criminal negligence causing death).
- Investigation appropriately redirected and run by the Major Crime Unit (MCU), where appropriate.
- Investigators met or exceeded baseline qualifications recommended for investigators tasked with in-custody deaths, shootings, serious assaults/injuries and sexual assault investigations):
- Primary investigator: Prior experience in conducting statutory, public complaint, and Code of Conduct investigations. In addition, the major crime course and interviewing or interrogating techniques courses with knowledge and experience with the Major Case Management (MCM), where possible.
- Investigative team members: At a minimum, the major crime course and interviewing or interrogating techniques courses. Knowledge and experience with MCM, where possible.
- Workload of investigation team members adjusted (or reassigned) where appropriate to ensure ability to focus on member investigation.
- Appropriate consultation with provincial Crown attorney prior to laying of charges.
- Appropriate use of the administrative review.Footnote 36
This baseline criterion outlined above was assessed against the 28 cases reviewed. The key findings from the CPC investigators' reviews are highlighted below.
1 (b) i. Interviews of subject member and witnesses appropriate
CPC Finding No. 10: Of the 28 files that the CPC investigators reviewed, it was found that in 17 of these files, the subject member and witnesses were investigated by a lone RCMP investigator.
This is deemed to be inappropriate. In reviewing the cases, it was determined that while this type of interviewing technique did not have any negative impact on the outcome, the potential did exist for a conflict of interest (either real or perceived). Furthermore, in order to address any Charter arguments (in relation to duress, intimidation, promises, inducements, etc.) the presence of a second investigator would help to eliminate this potential problem in any future court proceedings.
1 (b) ii. Referral of cases to appropriate section
In those cases involving member-involved shootings or deaths where the possibility of a homicide exists, the divisional Major Crime Unit (MCU) was assigned to the investigation. However, some of the serious assault causing bodily harm incidents were assigned to the Detachment Commanders or general duty members, thereby illustrating that there are no formal criteria in place to identify which section an investigation should be assigned.
It is important to address the inconsistent use of units/individuals assigned to member investigations across divisions. In some divisions, units assigned are called the Serious Crime Units; however, in other divisions they are referred to as the Major Crime Unit.
CPC Finding No. 11: Overall, the section or unit tasked with member investigations (including their mandates) lack uniformity across the country.
In one file, the primary investigator asked the Officer in Charge for assistance from the MCU and was refused because the complaint was over twenty years old. However, in the CPC's opinion, the request for the MCU to handle the investigation was valid given that the complainant alleged that members of the RCMP had murdered his son. This example serves to show that in some instances, complaints are not taken as seriously as they should be and not given the proper attention deserved, nor are they assigned to the appropriate units/sections.
1 (b) iii. Qualifications
Earlier in this chapter, a baseline for the qualifications expected for both the primary investigator and the investigative team member were set:
- Primary investigator: Prior experience in conducting statutory, public complaint, and Code of Conduct investigations. In addition, the major crime course and interviewing or interrogating techniques courses with knowledge and experience with the Major Case Management (MCM),Footnote 37 where possible.
- Investigative team members: At a minimum, the major crime course and interviewing or interrogating techniques courses. Knowledge and experience with MCM, where possible.
When comparing member qualifications against this criterion, the CPC investigators found that there was a lack of consistency in the qualifications of the members assigned to undertake member investigations. For example, one member had no formal general investigation experience at all (however, he did have 15 years experience in general police duties and had previously conducted approximately 40 statutory investigations).
CPC Finding No. 12: In the 28 case files reviewed, the qualifications of the investigators varied greatly. Some had all the major crime and related courses, while others had as few as two years experience in the General Investigation Section.
Based on this analysis, the CPC investigators made additional recommendations regarding the qualifications necessary for members assigned to member investigations.
CPC Recommendation No. 4: The RCMP should assign competent senior investigators with a proven track record in court who have completed the appropriate courses (e.g. sexual assault, major crime, interviewing and interrogation techniques and statement analysis); who can effectively interview witnesses with strong analytical skills.
1 (b) iv. Workload of investigation team members adjusted (or reassigned) where appropriate to maximize focus on member investigation
The workload of the members assigned was a questionable issue. When a file was assigned to a general duty member, in most cases the CPC found that the investigator was not relieved of regular duties. This issue was raised by most members interviewed. As such, member investigations are dealt with when time permits. In cases where the incident is alleged to have occurred some time in the past, members expressed no urgency in completing the investigation.
In the course of an interview with the CPC investigators, one RCMP member revealed that as far as he was concerned, the member investigation was "just another file" among many to him, stating that the file was just another one added to the "pile." The notion of members being given multiple files and no workload adjustment to ensure that adequate attention is paid to ensure an effective and timely investigation is problematic.
CPC Finding No. 13: Overall, it was found that the investigations conducted by the Major Crime Unit were focused and completed in a timely fashion, as they had the ability, resources and the time to conduct the investigation. This was not found to be the case when the investigation was assigned to a Detachment Commander or General Duty or GIS member whose heavy workload was not adjusted accordingly.
CPC Recommendation No. 5: Workload of members assigned to member investigations should be reassigned or adjusted to prioritize member investigations accordingly.
1 (b) v. Appropriate consultation with the Crown for determination of charges laid against subject member
One issue of particular relevance in structure and line management is the consultation with a provincial Crown counsel before the laying of a charge. The Criminal Code of Canada gives the police the authority to lay a criminal charge. However, the provincial governments in British Columbia, Quebec, and New Brunswick make it mandatory for police to consult with a provincial Crown counsel before a criminal charge is laid against a police officer or any other person.
National RCMP policy requires consultation with the Crown in all cases as per the national Investigation Guidelines policy, which states:
- F.2. "If there is evidence to support a prosecution, consult Crown counsel."
- F.2.(a). "If there is any conflict with the Crown counsel, refer it to the Cr. Ops. Officer."
Below is a detailed breakdown of the consultation with Crown counsel for the 28 cases:
Figure 10: Consultation with Provincial Crown Counsel
- Not Sent to Crown, No Charges Laid – 14 (50%)
- Sent to Crown – 10 (35.7%)
- Sent to Independent Counsel – 2 (7.1%)
- Unknown – 1 (3.6%)
- Not Sent to Crown, Charges Laid – 1 (3.6%)
The CPC review found that the RCMP's consultation with the Crown when laying a charge was handled appropriately overall, with the exception of one case.
This was a Manitoba sexual assault case against a member which resulted in the RCMP laying charges against a member without seeking Crown opinion. The member charged was later acquitted in court. While the lack of consultation is not deemed to have had any direct impact on the outcome of the case, it is a violation of policy that the RCMP must guard against, particularly given the sensitivity, level of transparency and impartiality required for these investigations.
Overall, while member actions did comply with policy, the CPC found a discrepancy between the current consultation process with the Crown for cases involving RCMP members and all other cases. At present, when the RCMP sends a file to the Crown which involves an RCMP member, the RCMP does not include a recommendation regarding how the member should be charged. This differs from the standard procedure for all other cases (not involving RCMP members) where a recommendation on how to proceed is, in fact, included.
Within the context of his Inquiry into the Death of Frank Paul, Justice William H. Davies, Q.C. also found that in British Columbia, in the case of every police-related death, the Vancouver Police Department forwards a "neutral" report to Crown counsel without making a recommendation as to whether criminal charges should be laid, which contradicts the departmental manual requiring police officer to send the report to Crown counsel only "if the evidence supports a charge."
CPC Recommendation No. 6: Special attention should be paid to enforce the RCMP requirement to consult with the Crown prior to laying any charges against members, given the particular need for independence and impartiality in member investigations. The RCMP should also undertake a review regarding recommendations made to the Crown in cases involving RCMP members.
1 (b) vi. Appropriate use of administrative review
As outlined previously in this report, an administrative review is generally defined as an independent review of all aspects of an incident undertaken with the express intent of identifying potential deficiencies in policy, training, equipment and/or member techniques.
CPC Finding No. 14: Of the 28 cases reviewed, six of which involved death, an administrative review was only undertaken in four cases: two of which were member-involved shootings (Manitoba (D) & Nunavut (V) Divisions); and two of which were in-custody deaths (Saskatchewan (F) and Alberta (K) Divisions).
The four administrative reviews undertaken resulted in one instance of the investigators being instructed to interview one or two more witnesses before completing the investigation.
CPC Recommendation No. 7: Given the sensitivity and transparency required for member investigations, it is recommended that administrative reviews be undertaken in all cases of serious injury, sexual assault or death.
Use of the probe
The use of a "probe" in one specific division, Manitoba (D), is a best practice worth noting. A "probe" is often ordered when a complaint has a criminal element but may lack sufficient information to determine how to proceed. The "probe" consists of:
- Interviews with the complainant, victim and any other third-party witnesses;
- A review of operational files related to the complaint; and
- A review of members' notes and reports;
* It is important to note that subject members are not to be requested to provide witness or warned statements at this time.
The investigator assesses the information collected from the probe and drafts a report that summarizes the incident, the complainant's statement, and the results of the file review, helping to determine how best to proceed.
CPC Recommendation No. 8: The RCMP should consider applying the use of the "probe" to lower-end investigations in all divisions.
CPC Recommendation No. 9: The RCMP could consider recommending that the Officer in Charge of the Criminal Operations Section be the appropriate recipient of the probe report in order to determine whether or not a lower-end investigation should proceed to a statutory investigation.
In addition, the probe report should be in an investigation report form and should include appendices of all referenced material, including a copy of the operational file from which the complaint stemmed. It is important that the report be fact-based, and not opinion-based. The investigators' role is to simply present the facts and should focus solely on the criminal aspects of the complaint and not any potential Code of Conduct issues.
Overall Assessment of Criterion 1(b) Level of Response
Based on the preceding analysis, the graph below depicts the CPC investigators' overall assessment of the level of appropriateness of the RCMP level of response in the 28 cases reviewed. Sixty-eight percent of cases were deemed to be handled partially or entirely inappropriately.
CPC Finding No. 15: The CPC found that, overall, the level of response was handled partially or entirely inappropriately (68%). Key concerns related to interviews being undertaken by lone investigators as well as inconsistent referral of cases to the appropriate investigative unit.
Otherwise, it was found that all witnesses who were willing to cooperate were interviewed, witness statements taken, as well as expert witnesses (i.e. polygraph examiners, accident reconstruction personnel, identification specialists and other outside agencies) were used when and where necessary.
Criterion 1(c) Timeliness of Response: investigative team responded in timely manner
A baseline definition of what constitutes a "timely" response by the investigative team was developed in order to effectively compare each individual case against established criteria for assessment. The key features of appropriate timeliness of member investigations include the following:
- Member investigation undertaken and completed in six months (or less).
- Investigations, if possible, should not exceed one year.Footnote 38
- Immediate dispatch of necessary personnel where timely response required.
The following section assesses the overall timeliness of the 28 cases reviewed against the established baseline criteria, outlined above.
1 (c) i. Overall completion of member investigation in six months (or less)
Figure 12: How Long Does The Investigation Take?
- Low: 5 Days
- Average: 6 Months
- High: 2 years
The CPC review revealed that the average amount of time for the 28 criminal member investigations was six months. In taking a closer look at these numbers, the graphic below demonstrates that the timeliness of the member investigations is, overall, appropriate. The bulk of the cases (60%) were completed in less than six months. However, 19% of the cases did exceed the one-year mark, as addressed next.
Figure 13: Timeline for the Investigation: Number of Months
Less Than Six Months (60%)
- 1-2 Months – 39%
- 4-5 Months – 21%
- 7-8 Months – 14%
- 10-11 Months – 7%
Over One Year (19%)
- 15-16 Months – 11%
- 20-21 Months – 4%
- 27-28 Months – 4%
1 (c) ii. Investigations, if possible, should not exceed one year
As per the above timeline, when a member investigation takes longer than one year to complete, these subject members could be excluded from any Code of Conduct (section 43(8) of the RCMP Act) action that may follow. In addition, should the one-year limitation period lapse, members could also be precluded from being charged under some offences of the Criminal Code. This requires that particular attention be paid to ensure the timeliness of these investigations. Out of the 28 cases reviewed, 19% (five cases) took over one year to complete-which could have excluded members from the RCMP internal disciplinary processes, if required.
It is important to contextualize that of the 28 cases reviewed, no charges were laid in 23 cases.
Figure 14: Charges Laid Against Subject Members
- No Charges – 23 (82%)
- Charges – 5 (18%)
Cases Where Charges Were Laid Against Subject MembersFootnote 39
Of the five cases where charges were laid, a total of eight charges were laid.
- One case that occurred in Newfoundland and Labrador (B) Division, where the subject member was accused of sexual relations with young persons while on duty in the victims' community, the following charges were laid:
- Sexual Assault (s. 271 C.C.)
- Outcome: Charge withdrawn.
- Sexual Exploitation (s. 153 C.C.)
- Outcome: Subject member pleaded guilty.
- Sexual Assault (s. 271 C.C.)
- One case that occurred in Manitoba (D) Division, where the subject member was accused of sexually assaulting another RCMP member in a private residence, the following charge was laid:
- Sexual Assault (s. 271 C.C.)
- Outcome: Subject member acquitted of charge at trial.
- Sexual Assault (s. 271 C.C.)
- In the case that occurred in British Columbia (E) Division, where the subject member was accused of assault causing bodily harm against a civilian during questioning, the following charges were laid:
- Assault Causing Bodily Harm (s. 267 (b) C.C.)
- Outcome: Subject member pleaded guilty.
- Torture (s. 269.1 C.C.
- Outcome: Charge withdrawn.
- Obstructing Justice (s. 139 C.C.)
- Outcome: Charge withdrawn.
- Assault Causing Bodily Harm (s. 267 (b) C.C.)
- In the case that occurred in Saskatchewan (F) Division, where the subject member was accused of sexually assaulting a civilian in a private dwelling, the following charge was laid:
- Sexual Assault (s. 271 C.C.)
- Outcome: Subject member pleaded guilty.
- Sexual Assault (s. 271 C.C.)
- In the case that occurred in Alberta (K) Division, where the subject member was accused of using excessive force against a civilian during arrest, the following charge was laid:
- Common Assault (s. 266 C.C.)
- Outcome: Charge stayed.
- Common Assault (s. 266 C.C.)
CPC Finding No. 16: Of the eight charges laid, three (37.5%) resulted in successful convictions, while five (62.5%) resulted in no convictions.Footnote 40
Figure 16: No Convictions
- Sexual Assault (s. 271 C.C.) – 2 (40%)
- Common Assault (s. 266 C.C.) – 1 (20%)
- Torture (s. 269.1 C.C.) – 1 (20%)
- Obstructing Justice (s. 139 C.C.) – 1 (20%)
Of the eight charges laid, only one went to full trial resulting in an acquittal.
1 (c) iii. Immediate dispatch of necessary personnel where timely response required
The overall timely completion of the investigations depended a great deal on what unit was assigned the investigation. For example, should the investigation be assigned to only one regular General Investigation Section member with an active workload, the investigation could take months to complete. Given that 17 of the 28 cases involved a single investigator assigned to the file, in some cases, this resulted in the file standing still due to the member's time off, sick leave, court appearances, attendance at courses as well as regular days off.
Another major factor that affects the timeliness of the investigation is the transient nature of the civilians and witnesses involved. This was evident in some of the files reviewed. In one particular case the primary investigator sent alerts to the detachments in an attempt to locate the complainant resulting in weeks of inactivity on the file. When located after several weeks, the complainant told the primary investigator that he did not want to become involved. It should be noted here that this was a third party complaint that was made and assigned to a General Investigation Section member who again had a significant workload. In another file, the complaint named a witness who lived in various towns and who was extremely difficult to locate, only to discover, upon interviewing him, that the witness knew nothing of the incident being reported.
Overall Assessment of Criterion 1 (c) Timeliness
As illustrated in the graph below, the timeliness of the 28 cases was deemed to be overall appropriate (82%).
CPC Finding No. 18: The CPC found that most investigations were completed in a timely manner. The files that took significantly longer to complete were not due to a lack of interest but rather to the heavy workload of the investigator in addition to general hindrances encountered (court dates, difficulty locating witnesses or complainants, employee absence, etc.).
Criterion 1(d) Conduct: conduct consistent with section 37 of the RCMP Act
A baseline definition of what constitutes "appropriate" member conduct, for the purposes of this analysis, was based on how well members complied with section 37 of the RCMP Act. Section 37Footnote 41 legislates eight specific criteria requiring that members, as representatives of the RCMP, act respectfully, dutifully and free from conflict of interest.
The CPC investigators based their opinion regarding the conduct of the investigating members on the thoroughness of the files, the quality of the reports, the video taped interviews of subject members, and the manner in which the interviewed members conducted themselves with the CPC investigators. Also taken into consideration in determining the conduct of the subject members was the fact that in most cases statements were supplied to the investigators despite not being compelled to do so.
The CPC investigators assessed the conduct of the primary investigator and the other investigative team members and did not identify any issues with regards to the conduct of these RCMP members. It is worth noting that in one investigation the conduct of the subject members came into question by the trial judge. It was his opinion that the civilian person charged with assaulting police was in fact the subject of police brutality.
Overall Assessment of Criterion 1(d) Conduct
The overall assessment of appropriate member conduct is depicted below. CPC investigators found that 100% of cases were handled in full compliance with section 37 of the RCMP Act.
CPC Finding No. 19: Overall, the CPC found that the RCMP investigators were free of bias and were professional and conscientious in their approach to their assignments. It was also found that most subject members and witness members cooperated with the CPC investigators and conducted themselves in a professional manner.
Handling of Historical Cases
A key issue that emerged from the case file review involved the RCMP's handling of historical complaints in particular. A complaint filed months or years following an incident is referred to as a "historical case." The very nature of historical cases can make access to evidence and witnesses more challenging, requiring specialized skills and attention not typical of most investigators. These types of investigations can be further complicated by witness memory (or lack thereof), loss of evidence, an inability to locate identified witnesses and the inability to properly identify the subject member in question. Furthermore, not having the appropriate time to conduct a thorough investigation can result in a perception of a conflict and a lack of interest by the investigator.
In these types of historical cases, it was found that the push for immediate action on the part of the investigating member was not paramount. It was found that historical allegations would be investigated like any other file and would fall into the everyday workload of the investigator. During a CPC interview, one investigator questioned why he would prioritize a historical complaint against a member over his other investigations which were just as important to him (as well as to the complainants).
An assessment of whether RCMP historical member investigations were handled appropriately revealed that, overall, these types of cases were not given priority and took an atypically long time to investigate. Of the three historical cases reviewed, two of them took more than a year to complete the investigation.
CPC Recommendation No. 10: Historical cases require expertise not typical of most investigators. It is therefore recommended that these types of cases be handled by a specialized unit at the national or regional level.
Criterion 2: Policy Compliance
Whether these same RCMP members complied with all appropriate policies, procedures, guidelines and statutory requirements for such investigation.
In order to assess member compliance with RCMP policy, the CPC investigators were required to access and review all policies, procedures and statutory requirements in place to guide member actions with regard to member investigations.Footnote 43 Given the varied timeframes in which each of the 28 investigations took place, the CPC Review Team requested-and was provided with-all relevant detachment, divisional and national RCMP policies, procedures or guidelines in place at the time of each investigation. This resulted in a sizeable number of relevant documents for review in each case.Footnote 44
Following receipt of these documents, the CPC investigators then assessed if members were in compliance with the policies in place at the time the RCMP investigations were undertaken.
It is important to note that this section is intended to focus solely on compliance with policy (not adequacy, which is assessed in greater detail in chapter 3). It is worth noting, however, that the CPC investigators echoed the sentiment that policies varied between divisions and even detachments.
The relatively minor occurrences of non-compliance with policy were discovered by the Senior Officer conducting an administrative review relating to two violations of the cell block policy. They were as follows:
- The members did not have detailed notes placed on the investigative file certifying the person to be fit for incarceration in contravention of the Assessing Responsiveness/Medical Assistance policy (OM220.127.116.11).
- The lodging member failed to complete the area on C-13, which is the cell block form that lists all the persons in the cells and why they are there, indicating the date, time and who medically examined the prisoner and determined he was fit to be incarcerated in contravention of the Assessing Responsiveness/Medical Assistance policy (OM18.104.22.168.1).
In another file involving an alleged sexual assault, the investigators laid a charge without consulting with the provincial Crown. This therefore contravenes national policy as per the national Investigation Guidelines policy, which states:
- c. F.2. "If there is evidence to support a prosecution, consult Crown counsel."
- d. F.2.(a). "If there is any conflict with the Crown counsel, refer it to the Cr. Ops. Officer."
Overall Assessment of Criterion 2 Policy Compliance
The graph below depicts the overall assessment of compliance with RCMP policies (93%). In only two cases, the failure of consultation with the Crown counsel and failure to comply in full with the Assessing Responsiveness/Medical Assistance policy led to non-compliance with the required policies.
CPC Finding No. 20: After an in-depth review of the randomly selected cases, it was found that in most cases, the appropriate policies were complied with. In the few cases where it was found that some aspects of the related policies were not adhered to, they were minor in nature and did not appear to have any effect on the outcome of the investigation.
CPC Recommendation No. 11: Policy guiding criminal investigations of RCMP members should be standardized nation wide. This would allow for the statutory investigations into RCMP members to be conducted uniformly across the country.
3. Overall assessment of cases based on terms of reference as per the Chair-initiated complaint
The intent of this section of the chapter is to provide an overall summary of the issues and highlight the CPC investigators' findings from the 28 RCMP member investigations (six cases involving death; eight cases involving sexual assault and 14 cases involving assault causing bodily harm).
As per the complaint parameters, the CPC investigators assessed 28 cases in order to determine how appropriately each investigation was handled against five key criteria (outlined in detail in this chapter) which include: line management, level of response, timeliness, conduct and compliance with RCMP policy.
The grid below summarizes the total level of appropriateness (from highest to lowest) of the 28 cases for each of the five complaint criteria.
Figure 21: CPC Complaint Criteria – Overall Assessment
- Inappropriate: 0%
- Partially inappropriate: 0%
- Appropriate: 100%
- Policy Compliance
- Inappropriate: 7%
- Partially inappropriate: 0%
- Appropriate: 93%
- Inappropriate: 4%
- Partially inappropriate: 14%
- Appropriate: 82%
- Level of Response
- Inappropriate: 25%
- Partially inappropriate: 43%
- Appropriate: 32%
- Line Mangement
- Inappropriate: 32%
- Partially inappropriate: 43%
- Appropriate: 32%
Overall, RCMP member conduct was deemed highly appropriate (100%). The CPC found that the RCMP investigators charged with the task of investigating another member acted professionally and free from bias.
The CPC investigators also concluded that RCMP member policy compliance in each of the cases was overall highly appropriate (93%). Two minor violations of RCMP policy were found. In one case, an administrative review caught violations of the RCMP's Assessing Responsiveness/Medical Assistance policy. Specifically, members failed to have detailed notes on the investigative file certifying that the person was fit for incarceration, and members also failed to appropriately complete cell block log information. The second case involved an investigator laying a charge without consulting the provincial Crown, which contravenes the RCMP's national Investigation Guidelines policy, which requires consultation with provincial Crown prior to the laying of any charge.
The timeliness of investigations was also deemed overall appropriate (82%). Of the 28 cases reviewed, 60% were complete in six months or less. However, 19% of these cases took over one year to complete, thereby excluding members from internal disciplinary processes, if required. Specific concerns were also raised around the handling of historical cases which took considerably longer to investigate (one historical case still remained ongoing after 28 months at the time this report was published).
The two criteria the CPC investigators found of greatest concern were the RCMP's handling of the investigations in relation to level of response and line management. Given the fact that these two criteria specifically relate to the process of how member investigations are handled, this analysis further helps to illustrate the fact that CPC concerns relate largely to the current RCMP process (which is flawed) and not individual RCMP member action.
Of concern to the CPC was the appropriateness of the RCMP level of response (32%) in the cases reviewed. Particular concerns arose around the fact that investigations of subject members and witness officers were undertaken by a lone investigator in 17 of the 28 cases (60%) resulting in the potential for a conflict of interest or intimidation. It is important to note that while no specific conflicts of interest were found to result in these cases, the practice itself was deemed to be inappropriate.
Other concerns with the appropriateness of the RCMP level of response arose in relation to the referral of cases to the appropriate sections. CPC investigators noted inconsistent assignment of files across divisions and an absence of formal criteria to identify which section should be assigned which cases. CPC investigators also found significant disparity in the qualifications of the investigators (including the primary investigators). In addition, the complete absence of reassignment of duties or adjustment of workload for members assigned to investigators undertaking member investigations was also noted as a serious concern impacting the integrity and timeliness of investigations undertaken.
Some areas of the RCMP level of response were handled well. For example, the consultation with the Crown was handled appropriately, with one exception where charges were laid without appropriate consultation. The call for an administrative review of member investigations was also found to be inconsistently applied across the country (an administrative review was only called for in four of the 28 cases). Given the concerns with the level of response criteria in particular, significant recommendations are made in chapter 7 of this report.
Of greatest concern to the CPC was the level of appropriateness of the RCMP's line management (32%). The bulk of the 28 cases reviewed were deemed to be handled either partially or entirely inappropriately (68%). Specifically, 25% of primary investigators identified themselves as either personally knowing the subject member. Another critical concern was the fact that in 60% of the cases reviewed, a single investigator was assigned to investigate another member, thereby placing the integrity of the member investigation at serious risk for potential conflict of interest or perception of bias. In addition, in 25% of the cases, the primary investigator assigned was the same or of a lower rank than that of the subject member, thereby creating the potential for intimidation. Recommendations to address these concerns are outlined in greater detail in chapter 7, Recommended Model for RCMP Member Investigations.
5. Different Review and Oversight Models
There are currently different models for police oversight and review both within Canada and internationally. Across Canada, provincial governments have set up agencies with varying levels of authority and independence-some have even established more than one. Most provinces have seen numerous legislative changes at least once since the bodies' creation.
An analysis of police oversight bodies in other democracies rooted in British common law tradition reveals an equally diverse array of powers, obligations and scope of review among the oversight models ranging from the municipal level (Chicago) and the regional level in South Australia, to country-wide in Northern Ireland, New Zealand and the United Kingdom.
A comparison of other models, much less their application to the Canadian context, cannot be done without the acknowledgement of the particular characteristics of our country. The size of the territory and sheer vastness of Canada must be taken into account when attempting to "import" a model from a much smaller country like Northern Ireland, or a country with only one police service such as New Zealand. Factors such as historical relationships between Canadian communities and the police, socio-political stability and even budget constraints need to be taken into consideration-as many interlocutors point out, one single model "cannot be simply exported anywhere and operate just as effectively."Footnote 45
Nevertheless, it is useful to analyze police oversight in other jurisdictions for the purpose of legislative and factual comparison. How other governments choose to handle allegations of police misconduct can offer some valuable lessons on how best to undertake adequate and effective investigations of police here at home.
An analysis of several police review or oversight agencies was conducted through a review of available literature as well as interviews with individuals holding high ranking positions within such agencies. Information analyzed was either in electronic format or hard copy such as the agency's annual report, statistical reports and departmental performance reports. In addition, news releases and relevant literature were examined in order to acquire a full picture of the agency under study.
Between October 27, 2008 and November 25, 2008, interviews via telephone were conducted with high ranking officials from each of the 14 bodies examined in this chapter. The discussions ranged between 45 and 90 minutes in length and were extremely helpful in providing additional information and clarification.
Each body was assessed according to the following criteria: mandate, background, jurisdiction, legislative basis, handling of the complaint process (or handling of the investigation), statistical analysis,Footnote 46 structure, budget and financing, investigator credentials and training, and policies and procedures. Individuals from each agency were sent a copy of a profile created as a result of researching the agency (web, etc. and interviews) as well as a questionnaire detailing each agency's powers. All interviewees offered useful feedback regarding the profiles, as well as detailed answers to all questions.
In addition, individuals interviewed were asked questions in reference to the extent of their legislative powers. Information gathered allowed for a more complete profile of each agency, and in one case-that of the recently created office of the Independent Police Review Director (IPRD) in Ontario-offered information that is not yet available in written form.
Finally, individuals were asked opinion-type questions regarding the characteristics of an "ideal" police oversight body, as well as features of an oversight system most suitable for Canada. Their answers are provided throughout the body of this chapter.
From this work, results were compiled into one complete profile of each review or oversight body. Examination of all existing bodies in practice generated an understanding that created three main models of police oversight.Footnote 47
Types of Models
In the most general of terms, police oversight models differ in the level of dependence by the oversight body on the police in criminal investigations. Additional features that set the models apart include the level of influence exercised over an investigation, the ability to refer an investigation to another police force, as well as the nature of the investigative team.
There are three main categories of police oversight models: (1) Dependent Model; (2) Interdependent Model; and (3) Independent Model.
The dependent model essentially represents more traditional "police investigation of police." There is no civilian involvement in the criminal investigation and, therefore, there is a total dependence on the police for the handling of criminal investigations. There are two sub-categories to this model: (1.1) police investigating police and (1.2) police investigating another police force.
In the police investigating police sub-category, the police service is fully responsible for the criminal investigation and administration of public complaints alleging criminal offences. The oversight body in question does not conduct criminal investigations, but it may recognize complaints regarding service, internal discipline or public trust.
The second sub-category involves "police investigating another police force" in specific cases so that the police service does not investigate its own members in instances of serious injury or death. In selected Canadian provinces, memoranda of agreement exist between the local police and the RCMP that allow an outside police force to handle the investigations of the RCMP member(s).
The interdependent model introduces into the criminal investigation civilian involvement to varying degrees. There are also two sub-types to this model: (2.1) civilian observation and (2.2) hybrid investigation.
In the first sub-type of the interdependent model, a civilian observer is assigned to the police investigation to ensure that the latter is conducted with impartiality.
The hybrid investigation comprises mostly of a civilian oversight body whose involvement in the investigation goes beyond the role of mere overseer. In this model, the police force may be engaged in some form of collaboration with the oversight body, although the latter may have the ability to conduct the investigation entirely on its own.
The independent model is embodied by a totally independent investigation. There is no police involvement in the investigation. The oversight body composed of civilians undertakes independent criminal investigations that cannot be referred to the police force, and may have the authority to make binding findings and lay charges. The following table illustrates the characteristics of each model.
|1. Dependent Model||2. Interdependent Model||3. Independent Model|
Investigating Another Police Force
|Represents police investigating police criminal investigations
||Represents police investigating another police forceInvolves formal arrangements (memoranda of agreement) in place with another police force to handle investigation of police officers in cases of death or serious bodily harm.
||Introduces civilian observation to investigationCivilian observer responsible to monitor criminal investigation (not direct or oversee investigation)
||Oversight body may choose from various options which include:
a) may supervise/manage parts of police criminal investigation (beyond monitor/oversee) conducted by police
b) may assume control over police investigation
c) may undertake independent criminal investigation
|Oversight body undertakes independent criminal investigation for cases within its mandate
It is important to note that each oversight body under analysis has its own particular characteristics that separate it from other similar agencies, even when those are the broad representation of the same model. In the same vein, each of the oversight entities carries its own features which may not be captured by one general definition. However, we have, for the purposes of this discussion, set out general parameters for comparison.
1. The Dependent Model
1.1 Police Investigating Police
The police investigating police sub-type is representative of an oversight agency that does not undertake criminal investigations. It remains essentially a model that exists alongside police forces responsible to undertake criminal investigations into cases involving other police officers.
This model may involve a civilian review body that investigates allegations of disciplinary misconduct (exemplified by Manitoba's Law Enforcement Review Agency) or an appellate authority with respect to public complaints about the policies, services or conduct of police officers without interlocutory powers of review (Ontario's Civilian Police Commission). It may be an agency that recognizes complaints limited to service or policy, internal discipline or public trust (such as Police Complaint Commissioner in British Columbia), or it may be an independent civilian body which administers the public complaints process (the newly established office of the Independent Police Review Director in Ontario). It could also be a body which examines potential violations of the code of ethics by police officers, special constables and highway controllers (represented by the oversight system in Quebec in the authority of the Police Ethics Commissioner and the Police Ethics Committee).
In any case, the agency is responsible for non-criminal complaints and in the case of potential criminal offences, it refers the file either to the appropriate police force or the office of the Attorney General for further decision.
The composition of the police investigating police model is varied, consisting of a mixture of civilians and former police officers. In the case of the Quebec Police Ethics Commissioner's investigative team, a specific provision mandates that should the investigators be former police officers, they cannot participate in a case involving their former police department.
Some of the perceived advantages of this dependent model sub-category include the tenet that police have the necessary investigative skills and access to appropriate resources (e.g. forensic support) for the task, in addition to the requisite legal authority and powers to complete investigations, particularly regarding Criminal Code issues. Further, others posit that police have a better understanding of the RCMP's operating organizational and cultural dynamics which can secure more legitimacy in the process in the eyes of members, thereby resulting in enhanced cooperation.
The challenges associated with the police investigating police model have been highlighted previously. To summarize, some argue that police do not take seriously most public complaints and assign limited investigative resources and expertise to the process.Footnote 48 Police officers are deemed to be sympathetic and responsive to informal police cultural norms and perspectives which protect individual officers and undermine the investigative process. Police officers can be pressured by other police and the police culture ("blue wall" "blue curtain", "code of silence") to conduct ineffective investigations. At most salient, this model is deemed failing to meet the basic standards of public accountability.
Domestic examples of police investigating police
As shown in the previous section, examples of the police investigating police model reviewed are all Canadian-based, having been created by different provincial governments. Ontario is a unique case with two agencies within this category.
Quebec's police oversight system, composed of the Police Ethics Commissioner and the Police Ethics Committee, is chiefly concerned with the potential violations of the Code of Ethics pertaining to police officers, special constables and highway controllers. Of particular interest is the provision which mandates that only those who have been called to the bar for at least 10 years can be appointed as full-time members of the Committee.
The Ontario Civilian Commission on Police Services (OCCPS), soon to be renamed Ontario Civilian Police Commission upon the proclamation of Bill 103, the Independent Police Review Act, is a quasi-judicial agency and the final appellate authority with respect to public complaints made against all municipal police services in the province. The Commission has recently lost its interlocutory powers of review to the newly established office of the Independent Police Review Director (IPRD). The IPRD is also responsible for the initial screening of public complaints and may establish rules and guidelines for police chiefs and police boards for complaints made by the public.
The two remaining bodies exemplifying the dependent model, Manitoba's Law Enforcement Review Agency (LERA) and the office of the Police Complaint Commissioner (PCC) in British Columbia, are both witnessing legislative developments that may affect their respective powers and obligations. In Manitoba, the recently published Taman Inquiry report called for the establishment of a new independent unit responsible for all criminal investigations of Manitoba's police officers, and the current government pledged to abide by all 14 recommendations made in the report when it introduces changes to the Police Act in 2009.Footnote 49
In the meantime, the LERA remains the sole independent police oversight agency in Manitoba, but it does not handle criminal investigations. Instead, the agency investigates such allegations as the abuse of authority, false statements and lack of restraint in the use of a firearm.
British Columbia's Public Complaint Commissioner (PCC) is an independent officer of the legislature whose role is to oversee the public complaints process involving municipal police officers in the province. The Commissioner can initiate investigations with Ordered Investigations based on information received from a member of the public or from a police department. In exceptional cases, the PCC may delegate the investigation to an external agency, including the RCMP in its capacity as the provincial police force. The Commissioner has been seeking legislative changes for several years, expressing the need for such additional features as compellability of police officers with respect to disciplinary proceedings.
In July 2005, the British Columbia Minister of Public Safety and Solicitor General ordered a review of the police complaints process in the province. B.C. Appeal Court Judge Josiah Wood, the appointed Director of the review, released the final report in February 2007. The report contained 91 recommendations to improve the system; stiffer penalties for officers guilty of misconduct were among many suggested venues for improvement. In February 2008, the B.C. government announced changes to the province's Police Act to implement the report's recommendations.
On March 4, 2009, the provincial government introduced amendments to the Police Act: Bill 6 – 2009 Police (Misconduct, Complaints, Investigations, Discipline and Proceedings) Amendment Act, 2009 and Bill 7 – 2009 Police (Police Complaint Commissioner) Amendment Act, 2009.
B.C. Solicitor General John van Dongen stated that the proposed legislative changes address "virtually all" of Wood's recommendations. NDP public safety critic Mike Farnworth emphasized that the changes are insufficient because the RCMP, which constitutes the majority of patrol outside greater Vancouver and southern Vancouver Island, remains excluded from the Act's jurisdiction. There has been some criticism that the amendments fail to provide adequate civilian oversight since investigations into police misconduct remain largely in the hands of police officers. To that B.C. Solicitor General van Dongen replied that the creation of an entirely civilian investigator team is not practicable and implied that police investigators are sufficiently experienced for the task. The B.C. Solicitor General is confident that the province can strike a good balance of public and police involvement in the police complaints process.
A key feature of the new legislation calls for "[m]andatory external investigation of death and serious harm" (s. 89) and requires that the PCC be "immediately" notified by a chief constable when a person "suffers serious harm" or dies while in police custody or as a result of police actions (s. 89(1)a), as well as when the serious injury or death of a person could be seen as the result of the conduct of a municipal police department or police operations (s. 89 (1)b).
1.2 Police Investigating Another Police Force
The second sub-category of the dependent model involves outside police force investigation. In essence, it is still representative of "police investigating police," but in cases involving serious injury or death, police investigate another police force. Formal agreements or protocols such as memoranda of understanding between different policing bodies in some cases ensure that one police force is not in charge of investigations of incidents involving its own members.
In the Canadian context, formal agreements between some local police forces and the RCMP allow an outside police force to handle the investigations of RCMP members. Such mechanisms allow for a perception of independence and objectivity of the investigation and minimize the negative effects of internal loyalty and solidarity on the completion of a fair investigation. In addition, the external police invited to conduct the investigation possess all the required expertise and resources to investigate in an effective manner, as well as the necessary understanding of the organizational and cultural dynamics required for investigations.
However, the use of an external police force for member investigations remains highly discretionary and inconsistently applied across RCMP divisions. Having an external police force investigate the RCMP may provide only the appearance-but not the reality-of an independent investigation. Many seriously question the possibility of independence for external police investigations due to occupational and cultural police philosophies which can jeopardize the protection of the individual member thereby undermining the integrity of the investigation (e.g. "blue wall," "blue curtain" or "code of silence").
There is also little evidence that external police officers do actually obtain higher levels of police cooperation from other police in complaint investigations to justify their involvement, and without public oversight external investigations of this nature often produce similar findings to an internal investigation and result in a low level of substantiated complaints.
Domestic examples of police investigating another police force
This model is typically an unlegislated process and is currently present in a select few provinces. Memoranda of agreement exist between the RCMP division and the local police service(s). The three examples of this model are: the Memorandum of Agreement between the RCMP Nova Scotia (H) Division and the Halifax Regional Police (HRP), the Memorandum of Agreement between the RCMP Newfoundland and Labrador (B) Division and the Royal Newfoundland Constabulary, and the Memorandum of Agreement between the RCMP New Brunswick (J) Division and the police services of New Brunswick.
In Nova Scotia, the July 2003 agreement set up the Integrated Critical Investigation Team (ICIT), comprised of officers from both the RCMP and the Halifax Regional Police. The purpose of the ICIT is to investigate critical incidents or any other incident designated by the Chief of HRP or the Commanding Officer of H Division. Article 4 of the agreement stipulates that the officer in charge of the investigation and the primary investigator be a member of an independent agency (the agency without officers involved in the incident in question). The ICIT team was most recently deployed in a member-involved shooting in Yarmouth and a Taser death in Digby.
The Memorandum of Agreement in Newfoundland and Labrador is identical to the mechanism in place in Nova Scotia.
In New Brunswick, an agreement exists between the RCMP J Division and the Bathurst City Police Force, the Beresford Nigadoo Petit-Rocher Regional Police Force, the Edmundston Police Force, the Fredericton Police Force, the Miramachi Police Force, the Rothesay Regional Police Force, the Saint John Police Force, and the Woodstock Police Force. It creates the Use of Force Investigation Team (UFIT), which investigates the critical incident, led by an officer in charge and a primary investigator, both members of the independent agency. The UFIT has been in operation for about five years.
2. The Interdependent Model
2.1 Civilian Observation
The first sub-category of the interdependent model combines the police investigation with the input of an independent civilian observer who monitors the impartiality of the investigation. This model allows for engaged civilian oversight and direct influence in the investigative process.
One advantage of this model is that it offers a civilian, non-police influence, thereby enhancing public accountability and transparency to an otherwise internal police-centric public complaints process. Civilian observation provides an opportunity to monitor the adequacy and effectiveness of police complaint investigations. Civilian observation of police investigating police provides a level of transparency and public information to an otherwise internal and closed process.
A potential disadvantage is that civilian observers cannot conduct their own investigations and are therefore entirely dependent upon police investigations of police officers in the first instance. Concern also exists as to which part of the criminal investigation the observer should be privy to, as the observer's presence then allows for compellability in court. Also, civilian observation of police investigations may be viewed as illegitimate, unqualified and inappropriate by some police officers and associations.
In addition, civilian observation is viewed as costly, ineffective and time-consuming; poor value for money; and despite civilian involvement in the review of police investigations some critics argue that it has not created an increase in sustained complaints and publicly satisfactory outcomes.
Domestic examples of civilian observation
After the Canadian public expressed concerns regarding the issue of transparency and accountability in relation to RCMP investigations of their own members in cases of serious injury or death, the CPC decided to contribute to the enhancement of public confidence by assessing the impartiality of RCMP investigations in an objective and timely manner. On March 21, 2007, it established the Independent Observer Pilot Project in British Columbia (E) Division.
Today a fully developed program, the Independent Observer Program (IOP) offers timely observations regarding the impartiality of RCMP investigations of its own members in cases involving serious injury or death, and in cases that are viewed as sensitive or high profile in nature. The impartiality of the investigation is assessed against four criteria: line management, appropriate level of response, timeliness of the response, and conduct. In order to qualify as an Observer, the candidate needs extensive legal training (or education in criminology or policing), experience in the area of public complaints against police officers, and experience in police investigations.
Between March 2007 and June 2008, the IOP was involved in six E Division investigations. A one-year review of the IOP by the CPC and RCMP, via an independent contractor, determined that the program was effectively fulfilling its mandate and recommended the possibility of establishing the Observer Program in other RCMP divisions "on a pilot project basis."Footnote 50
On December 4, 2008, it was announced that an Independent Observer was to be deployed outside British Columbia for the first time. At the request of Yukon's M Division, the program was introduced to the RCMP investigation into the in-custody death of an individual in Whitehorse, Yukon. As of January 2009, an observer had been deployed a total of 10 times and found no concerns with RCMP impartiality.
The IOP is not part of the RCMP legislative framework. One of the Independent Observers admitted that becoming part of the legislation is a desirable feature that would enhance his powers. This would give the Observer the authority, strength and credibility it needs.Footnote 51
2.2 Hybrid Investigation
The second sub-type of the interdependent model is a hybrid investigation. This model involves active participation of civilians in the investigative process in the form of collaboration with the police force, management of the police investigation, or, in exceptional circumstances, the ability to assume control of the investigation.
In most cases, therefore, the hybrid model assumes some form of engagement between the oversight agency and the police force. The latter is still involved in the investigation but it is obliged to report to, follow, and cooperate with, the oversight body. In exceptional cases, the police may even reassign its authority over the investigation to an outside agency whose role goes far beyond that of an overseer.
One example of this model is the Alberta Serious Incident Response Team (ASIRT), an agency that was created to be deployed in events involving serious injury or death (and other sensitive or serious matters). The ASIRT, therefore, embodies this model given its blend of civilians and seconded police officers who work together on investigations.
The hybrid sub-category, however, also allows for the possibility that the oversight body conduct an investigation on its own. Saskatchewan's Public Complaints Commission (PCC) has the ability to assume the responsibility of the police investigation at any point it feels necessary to do so and in that instance the police service must desist from its investigation and provide all required assistance to the members of the PCC. The Independent Police Complaints Commission (IPCC) from the United Kingdom can supervise an investigation conducted by the police, but it can also manage the investigation or undertake one independently, the outcome of which is not subject to appeal. In exceptional cases, South Australia's Police Complaints Authority (PCA) may decide to conduct an investigation on its own and recently, the PCA Chair has in fact investigated one case to avoid giving rise to the appearance of bias.
In most cases, however, such occurrences are an exception to the rule. Agencies that represent the hybrid model rely largely on the investigative expertise of the police service and use it as groundwork for the proceedings. The United Kingdom's IPCC admits that often it uses a police forensic investigator to secure the scene of the incident. The Independent Police Conduct Authority (IPCA) from New Zealand can oversee a police investigation and may give directions to the police in that respect. It cannot remove the investigation from the police control, but it can carry out its own separate investigation. The IPCA investigators, thus, largely use the work done by the police as the foundation upon which to develop their own further investigation. In the case of South Australia, most investigations are conducted by the internal investigation unit of its police service and the role of the PCA revolves around monitoring and inspection functions.
The composition of bodies representing the hybrid sub-category varies depending on their nature and mandate. The Alberta Serious Incident Response Team exemplifies a mix of civilians and seconded provincial as well as RCMP police officers. The remaining four bodies, Saskatchewan's Public Complaints Commission, UK's IPCC, South Australia's PCA and New Zealand's IPCA, are composed of civilians and retired/former police officers from the local police force, the federal police force, or abroad. In the case of the United Kingdom's Independent Police Complaints Commission, legislation mandates that none of its 15 Commissioners have worked for the police service, Her Majesty's Revenue and Customs (HMRC) or the Serious Organised Crime Agency (SOCA) in any capacity.
An obvious advantage of a hybrid investigation model is that it combines the expertise and capabilities of policing with civilian independence and objectivity. Seconded police officers retain essential police powers for the conduct of criminal investigations which civilian counterparts do not normally possess. Seconded or retired police officers also bring an understanding of the police organization and culture, which may produce a more cooperative investigative environment. In addition, seconded or retired officers could have specialized investigative skills and aptitudes that civilian investigators may not possess. Overall, a synergy between the different skills and experience of civilian and police investigators enhance the complaints investigation process.
The Director of the Alberta Serious Incident Response Team pointed out that "it's really important to strike a balance between investigative expertise and independence. A truly integrative unit reporting to a civilian ensures independence."Footnote 52 The integrated approach of ASIRT gives it "immense strength."Footnote 53 The Police Ombudsman for Northern Ireland expressed similar sentiment: "If you build a mix of seconded and retired police officers as well as civilians, you will build a body that is competent, professional, fair and accountable."Footnote 54
Furthermore, the hybrid model can be seen as cost-effective and time-efficient. By using seconded or former police officers alongside civilian employees saves the time it would take to properly train civilian investigators who lack field experience. Saskatchewan's PCC Director admits that investigative expertise is crucial: "There is a point to be made that a good investigator has to have good knowledge of what he investigates."Footnote 55 The Police Ombudsman for Northern Ireland emphasizes: "To investigate properly, we have to be just as good if not better [than police officers involved] and it takes a great deal of sophistication and time to properly train investigators."Footnote 56
Finally, the hybrid investigation model effectively allows the police to take an active part in the oversight process. By introducing police officers into the mechanism of police oversight and review, it increases the chance that the findings from the investigation are heard and recommendations followed. The Chair of the South Australian Police Complaints Authority points out that the key advantage of the hybrid model is that it "creates a system in which the police are very much part of the solution to whatever problems they may have."Footnote 57 According to the PCA Chair, this is essential to the success of good policing: "If you want your jurisdiction to have a good police force, the force has to be a part of the solution."Footnote 58
A potential disadvantage of this model is that the introduction of police culture and police values through the ongoing involvement of retired or seconded police may inhibit the development of a new civilian organizational culture. This risks jeopardizing the process and it may also be difficult to either second or attract experienced senior police investigators to an integrated model in which they do not have authority or control.
Domestic examples of Hybrid investigation
In Canada, two agencies are representative of the hybrid investigation model: the Alberta Serious Incident Response Team (ASIRT) and Saskatchewan's Public Complaints Commission (PCC).
ASIRT is the only hybrid example that has the authority to lay charges. The Director of ASIRT has all the powers of a police chief as defined by Alberta's Police Act. The agency's mandate is focused on incidents of serious injury or death, as well as other matters considered serious or sensitive in nature that resulted or may have resulted from the actions of a police officer. In operation since the spring of 2007, ASIRT is relatively new and in late November 2008 the body officially completed its first investigation. On January 6, 2009, ASIRT laid criminal charges for the first time when an RCMP officer was charged with sexual assault.
The Public Complaints Commission in Saskatchewan was established to increase public confidence in the accountability of the police and to improve the relationship between the province's Aboriginal population and the police. The 2005 amendments incorporated into the guiding legislation included a provision that outlined the composition of the PCC-in order to be truly representative of Saskatchewan's population. From this point on, one of the members of the board has to be a person of First Nations ancestry, one has to be of Métis origin, and one has to be a lawyer. The PCC has jurisdiction over all municipal police officers in the province (excluding RCMP members). The PCC has the authority to conduct investigations on its own, to monitor police investigations, or to refer investigations to the affected police force or to another police force.
Subsection 91.1(1) of the Act dictates that in cases of serious injury or death, the RCMP providing policing services within a municipality must request that the Deputy Minister of Justice appoint an observer "from another police service or detachment of the RCMP" to oversee the investigation. This observer shall be given "full access" to the investigation and report on all aspects of the investigation.
International examples of Hybrid Investigation
In the United Kingdom, the Independent Police Complaints Commission (IPCC) has undergone numerous legislative changes since the creation of the original Police Complaints Board. On April 1, 2004, the IPCC replaced the Police Complaint Authority following the release of The Stephen Lawrence Inquiry, 1999 report which reignited the debate about racism and policing in the United Kingdom.Footnote 59 Initially given jurisdiction over the police in England and Wales, in April 2006 the IPCC acquired authority over the Serious Organised Crime Agency (SOCA) and Her Majesty's Revenue and Customs (HMRC), and since February 2008 it has been given jurisdiction over the UK Border Agency (UKBA). In addition to complaints, certain incidents such as serious injury resulting from contact with the police, HMRC, SOCA or UKBA, must be reported to the IPCC. The IPCC's broad mandate is supported by the fact that its budget exceeds £34 million, making its funding base many times higher than the funding provided to other oversight bodies in the Commonwealth with a similar mandate. Interestingly, the IPCC has the authority to audit police policies and practices, but its staff is not likely to conduct these in reality, due primarily to resource constraints.
Unlike the circumstances surrounding the creation of some oversight bodies, the South Australian Police Complaints Authority was not established in response to public pressures and discontent. Rather, it was prompted by a wave of oversight agencies being created in other Australian regions, and the general consensus that such oversight was desirable. The PCA follows a model of "external monitoring of internal investigation" which delegates the primary investigation of complaints to the South Australian Police (SAPOL) Internal Investigation Branch (IIB). In exceptional circumstances, however, the PCA may conduct primary investigations of complaints and it may investigate the officers of the IIB. The Chair of the PCA admits to enjoying a good working relationship with SAPOL.Footnote 60 The two agencies have a memorandum of understanding pursuant to which SAPOL notifies the PCA of any case where a fatality occurs in the course of a police operation.
In terms of New Zealand, a memorandum of understanding exists between the Independent Police Conduct Authority (IPCA) and the police service which stipulates that matters of serious misconduct or neglect of duty reported internally within the police be notified to the IPCA. In addition, a protocol of cooperation between the IPCA Chair and the Commissioner of Police ensures collaboration between the investigators of the two agencies. Similar to Canada's Alberta Serious Incident Response Team, New Zealand's IPCA does not have the authority to initiate investigations on its own into sensitive cases not subject to complaints or referral. This is one of the features mentioned in the Amendment Bill proposed by the IPCA which was approved in draft form and that is currently awaiting formalization by New Zealand's recently elected government.
3. The Independent Model: Independent Investigation
The independent model consists of an investigation where the civilians are in charge of the investigation and police officers have no formal input of influence over the process involving their colleagues.
The key feature that differentiates independent investigation from the interdependent model is that there is no investigative collaboration between the oversight body and the police. For all cases that fall within its mandate, the oversight body investigates alone and does not refer the investigation back to the police force.
When asked whether his agency has the authority to conduct joint investigations with the police, the Executive Officer of Ontario's Special Investigations Unit (SIU) replied "No, we conduct 'parallel' investigations."Footnote 61 The police service and the oversight body may cross the same paths during the fulfillment of their mandate but not as a result of simultaneously conducting the same investigation. The Chief Administrator of Chicago's Independent Police Review Authority (IPRA) was hard-pressed to find an example of a "parallel" investigation possibly taking place between IPRA and the Chicago Police Department.Footnote 62 The Police Ombudsman for Northern Ireland was adamant that his office does not conduct investigations in collaboration with the police: "We conduct our own investigations."Footnote 63
An oversight body representing the independent investigation model is an agency composed of civilians who are fully responsible for the investigation. It may have the authority to lay charges, which is the case for Ontario's Special Investigations Unit (SIU) and the Police Ombudsman for Northern Ireland. It may offer recommendations that are extremely hard to refuse on the part of the police commissioner, which is the case with Chicago's IPRA.
Members that form the body which represent the independent model may be retired police officers who no longer possess their original police powers, police officers not active on behalf of the police under the agency's jurisdiction, or civilians with no prior police experience. The staff comprising the office of the Police Ombudsman for Northern Ireland, for instance, includes several police officers seconded from police services other than the service of Northern Ireland.
One of UK's IPCC Commissioners points out that the required investigative expertise need not be obtained solely from experience as a police officer. It is possible to have good investigators with no police experience, and there are some civilian investigators who are "exceptional" in their skills: "You do not need in itself to have a former police officer-what you have to be is qualified and experienced."Footnote 64 Moreover, retired police officers are not necessarily the ideal source of investigative skills-their skills may become outdated. The Police Ombudsman for Northern Ireland believes that the ideal combines seconded and retired police officers in addition to civilians.Footnote 65
The key advantage of this model is that by removing control of the criminal investigation from the police influence, the oversight body appears totally independent and objective. A more accountable and transparent culture informs the investigative process and the complainant may perceive it as more trustworthy and therefore may cooperate more freely with the investigators. In some circumstances the independence of the civilian investigative process would provide police with a stronger public validation of their position.
A possible disadvantage of this model is that a lack of police legitimacy may diminish police cooperation and participation which may ultimately lead to unsuccessful and/or failed investigations. A civilian-only investigative/adjudication process may be perceived by most police as being inadequate and unsympathetic to police concerns and their operational realities. Should the oversight body be staffed by civilians with no police experience, it may be criticized as lacking knowledge and understanding of police organization and culture required to conduct fair and effective investigations.
Disappointed by unsuccessful and failed investigations, members of the public will lose confidence in the fully independent civilian review model. Many argue that this is the most expensive model, as it requires additional resources to ensure professional investigations (e.g. forensic services). It may involve higher training costs for skill development, enhancement and ongoing education. Civilian models require special legal and investigative powers in order to deal adequately with serious investigations. This model may be perceived as undermining the authority and responsibility of police management with regard to a spectrum of operational and administrative processes.
Domestic examples of the independent model
Ontario's Special Investigations Unit (SIU) is the Canadian example of the model of independent investigation. Created in 1990, the SIU investigates the circumstances of serious injury or death as well as allegations of sexual assault that may have resulted from criminal offences committed by police officers. The agency has full powers to investigate and charge officers with a criminal offence. The SIU has recently undergone some criticism from the Ontario Ombudsman who in September 2008 released a report on the SIU entitled Oversight Unseen. The Ombudsman noted, however, some positive features such as no evidence of biased investigations and the strong commitment of SIU staff.
International examples of the independent model
Within the international context, the municipal Independent Police Review Authority (IPRA) for the city of Chicago embodies the independent investigation model, whereas the Police Ombudsman for Northern Ireland exemplifies the model in Europe.
IPRA was created in September 2007. The Office of Professional Standards (OPS) became separated from the Chicago Police Department (CPD) and IPRA replaced the OPS as an independent department of the City of Chicago. In the case of IPRA, all complaints are logged automatically and are therefore on record. IPRA retains those which pertain to its mandate.
IPRA investigates complaints made against all CPD officers in cases of domestic violence, excessive force, coercion and verbal abuse based on bias. In addition, IPRA automatically investigates all cases where a firearm or taser was discharged in a manner that could potentially strike an individual regardless of whether there is any alleged misconduct, as well as all "extraordinary occurrences" (any death or injury to a person while in police custody, any suicide or attempted suicide).
The office of the Police Ombudsman for Northern Ireland, established in 2000, was part of several developments in the area of policing that occurred following the Belfast Agreement. It has jurisdiction over police officers of Belfast Harbour, Larne Harbour, Belfast International Airports and the Ministry of Defence, as well as the Serious Organized Crime Agency and is expected to be extended shortly to the UK Border Agency. The Police Ombudsman has several options upon the completion of the investigation: he/she may recommend prosecution, disciplinary proceedings, compensation, or reject the complaint altogether. In 2007-2008, 11 cases involving 12 police officers were prosecuted.
In summary, this chapter reviewed the police oversight and review bodies in practice in Canada and for some countries with common law rooted in the British tradition. Three types of models were identified based on the level of civilian involvement in the investigation and respective oversight powers.Footnote 66
The dependent model comprises two sub-types: police investigating police and police investigating another police force. This model involves agencies that essentially do not get involved in a criminal investigation and the police service conducts the investigation of its own officers or members of another police service.
The interdependent model, present in British Columbia, Saskatchewan, Alberta, Yukon, New Zealand, United Kingdom and South Australia, introduces civilian involvement into the police criminal investigation. The first sub-category of this model refers to a civilian observer who monitors the police investigation for impartiality. Hybrid investigation, the other embodiment of interdependence, is represented by an agency whose civilian personnel is active in the investigation and may conduct investigations in collaboration with the police, or undertake them entirely on its own. This model is representative of a combination of police investigative experience and civilian independence.
The independent model involves civilians or police officers without any ties to the police service under their jurisdiction. In the model of independent investigation, the oversight body does not refer the investigation to the police force for any case falling within its mandate. The police service under investigation has no influence over the investigation of its officers. Ontario's SIU, IPRA in Chicago and the Police Ombudsman for Northern Ireland are representative of this model. The key advantage of an independent oversight body is that it offers an appearance of total independence and objectivity.
For Canada, there is no one model that can simply be imported in its current form and expected to function effectively without taking into account particular characteristics of our country. The size of the territory and sheer vastness of the country, coupled with budget constraints, needs to be considered before advocating a duplication of the independent investigation model from a much smaller Northern Ireland, or the interdependent hybrid model from the costly Independent Police Complaints Commission (UK). Some valuable lessons can be learned, however, from our counterparts.
6. Stakeholder Perspectives – What do others think is the right model?
How police are investigated is not just a "police" issue. Nor is it just a legislative or political one. How police investigate themselves is a fundamentally human issue. No member of the public who has experienced the death of a loved one as a result of police action would ever want another to experience the same pain. No RCMP member would ever want another member to have to take a life which they are deeply committed to protecting. And no police officer would ever want to investigate a colleague who has violated the laws (and honour code) which they are dedicated to uphold.
Thus, the perspectives of all those impacted by the issue are critical in order to help inform the most appropriate way forward. To this end, the CPC sought to discover the key recommendations on the issue of police investigating police from a wide cross-section of stakeholders by (a) seeking public submissions from all interested parties, (b) conducting interviews with domestic and international bodies, and (c) undertaking a review of a number of federal, and provincial reports (including a review of all provincial coroner and ombudsman reports between 2001 and present).
All recommendations impacting the issue of the police investigating police were captured, reviewed and considered in the development of the recommended model for the RCMP. Below is a summary of the key recommendations raised from the cross-section of key stakeholders, identified by model.
Model 1: Dependent Model
Police depend on police to undertake investigations-with discretionary use of external police
Key stakeholders that recommend this model as the way to go
The CPC identified a number of recommendations that advocate a dependent model for police investigations of their own members. Of these recommendations, four by coroner's juries, and by a judge, specifically advocated that investigations of "serious injury, assault or death"Footnote 67 involving the police be conducted by "an external police agency."Footnote 68
A medical examiner suggested that it is not improper for police services to investigate their own members in cases of serious injury or death, since they become public inquiries "where concerned parties can raise questions."Footnote 69 A police force supported the idea of a dependent police investigations model, but made an important distinction. Although the police service supported an "integrated police response" to critical police-related incidents, "with investigators from multiple jurisdictions including the subject police service," they were careful to specify that "[t]he lead investigator, however, should not be from the subject police service."Footnote 70 Another recommendation echoed a similar sentiment, calling for an integrated regional team to be assembled to investigate "statutory complaints where the circumstances of a complaint necessitate a more thorough investigation than usual."Footnote 71
Three recommendations focused on the specifics of these police-involved incidents, and not the models themselves. The first of these called for a review of police-involved incidents by the police force involved in order to determine "whether re-training of the officer is required before the officer resumes active police duties."Footnote 72 The next recommended that formal debriefing sessions be held "with all involved police officers following the completion of any [...] investigation after an incident involving a fatality while in custody."Footnote 73 The final recommendation requested that interviews of involved officers be conducted within a specific time frame after a lethal force situation.Footnote 74
Model 2: Interdependent Model
Police and civilians work together to varying degrees throughout criminal investigation
Key stakeholders that recommend this model as the way to go
The CPC has identified a total of seven recommendations that advocate the adoption of an interdependent model to conduct the investigation of police-involved serious incidents. Many gave salient explanations for their choice to support an interdependent model. The head of a police commission stated that "for any oversight agency to be effective, it requires a range of capacities and people with a range of skills. It's helpful to have both perspectives-you need a combination of individuals with practical police knowledge to bring both perspectives so that you can make balanced decisions."Footnote 75 Another recommendation stated that "it's really important to strike a balance between investigative expertise and independence. A truly integrative unit reporting to a civilian ensures independence."Footnote 76
An international recommendation supported the hybrid approach to these investigations because it "creates a system in which the police are very much part of the solution to whatever problems they may have."Footnote 77 Another international recommendation addressed the uniqueness of the Canadian policing environment by stating that "a 'totally civilian' body may be impractical. It takes a great degree of sophistication and time to properly train investigators. That is why introducing seconded police officers may be preferable."Footnote 78 Yet another international agency recommended that an interdependent model "to best support the public interest, serious complaints of police misconduct should be carried out by independent investigators, or by police investigators working under the oversight of an independent authority."Footnote 79
Finally, a recommendation contained in the CPC's Kingsclear Investigation Report advocated that "appropriate response and accountability mechanisms be put in place at the senior officer level to enable senior officers to monitor continuously the progress of any sensitive or large-scale investigation and assure the public of transparency, effectiveness and impartiality."Footnote 80 Justice Dennis O'Connor, in his report following the Public Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, recommended that the CPC be expanded to include more powers and the ability to "conduct joint reviews or investigations with SIRC and the CSE Commissioner into integrated national security operations involving the RCMP."Footnote 81 Another recommendation from the same report also stated that the reformed organization should have the ability to "refer a complaint to the RCMP or to investigate the complaint itself, if deemed appropriate."Footnote 82
Model 3: Independent Model
Civilian criminal investigation of police (police removed from process)
Key stakeholders that recommend this model as the way to go
The commission identified a total of 11 recommendations that advocated an independent model to conduct investigations of member-involved serious incidents. While some of these recommendations centered on the need to create bodies independent of the police to investigate critical police-involved incidents,Footnote 83 others simply reiterated the need for all such investigations to be undertaken by independent bodies in those provinces where such an organization currently exists.Footnote 84 Where such organizations do exist, recommendations were made to enhance cooperation and communication between the body and the police forces they investigate,Footnote 85 and instructions given to ensure that interviews are conducted in a culturally sensitive manner.Footnote 86 A recommendation was also made by a coroner's jury specific to police-involved fatal motor vehicle incidents, which suggested that "collision reconstructionists contracted by the Chief Coroner" investigate such incidents.Footnote 87
Two non-governmental organizations (NGOs) emphasized that the RCMP should no longer conduct investigations in cases of serious injury or death that resulted from the actions of their own members. One NGO proposed dissolution of the current CPC and establishment of a brand new civilian oversight body which would, among others, have the authority to investigate cases of police-involved death or serious injury, or a "matter of great public concern."Footnote 88 The second NGO advocated the creation of a new agency independent of the RCMP, which would investigate officers whose on-duty conduct resulted in serious injury or death.Footnote 89 It was recommended that this new oversight body should be comprised of men and women who are not currently members of any police force.Footnote 90 A further recommendation states that any former RCMP members employed by this body should be prohibited from investigating their former departments or colleagues,Footnote 91 a concern which was echoed in the Ontario Ombudsman's investigation into the Special Investigations Unit.Footnote 92 The Ombudsman also made numerous recommendations concerning the need to ensure that the recruitment of civilian investigators is increased through an open process.Footnote 93
7. CPC Recommended Model for RCMP Member Investigations
Upon consideration of all the CPC findings and recommendations, this report concludes with what is deemed to be the most appropriate model for the handling of RCMP member investigations involving serious injury or death.
To one end of the spectrum lies the "dependent model" under which the RCMP is overall currently operating.Footnote 94 As outlined in greater detail previously in the report, this model largely represents the status quo for RCMP member investigations. This option would allow the RCMP to continue to investigate itself with a discretionary ability to refer investigations to external police forces (where deemed appropriate to do so by RCMP divisional representatives). No mandatory requirements and minimal national uniformity would be applied to the handling of such investigations.
Given that the RCMP overall already operates within this model, maintaining the status quo would, therefore, require nil additional human or financial resources; no policy or procedural changes; and no legislative changes.
The "interdependent model" would introduce the new RCMP Review Body's ability to formally monitor any and all RCMP member investigations (without requiring RCMP permission to do so, as is currently the case). This model would also allow the RCMP Review Body to refer an RCMP member investigation to another police force, where deemed appropriate. This would thereby remove the RCMP's current discretionary ability to decide when an investigation should be referred (and to whom). This model would also allow the new RCMP Review Body to undertake joint investigations with federal and provincial similarly-mandated bodies.
Overall, this "interdependent model" would require moderate financial and human resources for the new RCMP Review Body. Significant structural, procedural and policy changes for the RCMP would be required. In addition, legislative enhancements to create a new RCMP Review Body capacity to monitor, refer or conduct joint investigations with like bodies should also be considered.
At the very other end of the spectrum lies the creation of an entirely "independent body" that would be mandated to undertake all serious injury- or death-related criminal investigations into RCMP members. This would ensure that the RCMP was removed entirely from the investigative process with only civilians mandated to undertake criminal investigations into members involved in serious injury or death.
This independent model would therefore require significant human and financial resources and substantial legislative drafting to create a national body with the mandated powers to undertake criminal investigations into the RCMP. Given the geographic, political and legislative climate within which the RCMP is currently operating, this option may be considered. However, given the role of provinces in the administration of justice and the growing number of provincial criminal investigative bodies emerging (like SIU, ASIRT and others) it is therefore recommended that the new RCMP Review Body be provided with enhanced legislative powers to effectively work with these provincial bodies (through joint investigations and enhanced monitoring capacity for RCMP member investigations), as per detailed recommendations outlined below.
Key features of the recommended "Interdependent Model"
In seeking to identify the best option for the handling of member investigations, the CPC's recommended option underlines the importance of police in the process (as part of the solution), while also recognizing that an enhanced degree of civilian engagement in the criminal investigation process is fundamental to ensure its impartiality and integrity. To that end, the CPC recommends shifting from the current "dependent model" towards the "interdependent model."
The recommended "interdependent model" rests between the basic dependent model and the full-featured interdependent model.
Figure 22: Model Continuum
The CPC's current role ties between the dependent model and the interdependent model, but is a closer match to the dependent model.
The CPC's recommended role also lies between the dependent and interdependent model but closely resembles the interdependent model than the dependent model.
The Independent model sits at the far right of the continuum.
Overall, the CPC believes that a criminal investigation resulting from member conduct is unlike any other criminal investigation and, accordingly, must be handled procedurally very differently. Therefore, to help transition the RCMP from its current "dependent model" to the "interdependent model," the following legislative, structural, and policy changes are recommended.
A. Legislative Recommendations
Given the CPC's finding that the issue today is not whether civilian review is desirable, but rather, how civilian involvement in investigations can be most effective, it is recommended that CPC legislation be modified to provide the new RCMP Review Body with the mandate to:
- Refer an RCMP member investigation. It is recommended that the current legislation be updated to allow the RCMP Review Body to: "refer the investigation to a police force other than the RCMP or to another criminal investigative body in Canada."
- Monitor RCMP member investigations.
- The new RCMP Review Body should be responsible to determine when the monitoring capacity should be applied (discretion would lie with the RCMP Review Body and not with the RCMP, as is currently the case).
- Additionally, grant the new RCMP Review Body with the authority to monitor any criminal investigation relating to a member of the RCMP, where it deems it appropriate to do so. This would therefore extend the RCMP Review Body's ability to deploy the observer to an investigation into an RCMP member being undertaken by an external police service and/or provincial criminal investigative body.
- While permission from the investigating agency/body would be required to embed the observer, the authority would at least provide the new RCMP Review Body with the power where granted permission to observe.
Undertake joint investigations with like-mandated bodies.
Proposed draft legislation could include: "The board may conduct a joint investigation, review, inquiry, audit or hearing with another body in Canada which has powers, duties and functions that are similar to the board's, including provincial criminal investigative bodies." This would allow the new RCMP Review Body to undertake investigations with new criminal investigative bodies (like ASIRT) as they emerge.
- The RCMP Commissioner revise the current version of his Standing Orders to:
- Include new Standing Orders to direct handling of member investigations, as per the recommendations herein this report.
- Specify that member investigations are not to be handled like any other criminal investigation and must, therefore, follow strict procedures set out for member investigations.
- Specifically revise current section 9: A member shall not investigate a complaint where that member may be in a conflict of interest situation.
- It is recommended that the term conflict of interest" be further defined.
- Include new Standing Orders to direct handling of member investigations, as per the recommendations herein this report.
B. Structural Recommendations
The CPC's finding that national and divisional data collection is non-existent for member investigations (combined with varied divisional RCMP record-keeping and retrieval methods on this issue) demonstrates a lack of attention being placed on member investigations, and the CPC makes the following key recommendations:
- Create the position of National RCMP Member Investigation Registrar to manage, track, train, promote and advise on all issues related to member investigations.
- This position would help address CPC findings related to the lack of consistency in current data gathering, monitoring and analysis of member investigations.
- The National Registrar would be responsible to:
- Create an RCMP National Registry for all police investigating police data (especially for serious injury, sexual assault and death cases) with timely sharing of data with the CPC.
- Create and manage an RCMP Police Investigating Police Advisory Group to help determine actions to be taken in sensitive cases.
- Monitor effective compliance with policy and enforce compliance where necessary (e.g. consultation with Crown re: laying of charges mandatory).
- Create and oversee a specialized unit with expertise on the handling of RCMP historical cases to be consulted-or deployed-where necessary.
- Create a mobile critical incident member investigation team (with a CPC civilian observer embedded) that can be deployed where both the RCMP National Registrar and the CPC Chair jointly determined it necessary to do so.
- A pool of qualified senior investigators placed on standby that can be deployed quickly (e.g. peacekeepers).
C. Policy and Procedual Recommendations
Prior to addressing the specific policies and protocols required for the handling of RCMP member investigations, it is first necessary to point out that, in the opinion of the CPC, there are certain instances where the RCMP should not investigate itself. Below is a chart that delineates that as the seriousness of the member-involved offence increases, a corresponding degree of independence and impartiality in that member investigation is required.
As identified through the report's case file and policy reviews, the current RCMP handling of member investigations (regardless of the type) remains entirely discretionary at the divisional level. There is no current national, HQ oversight of the process and no mandatory actions required for any member investigation. The chart below highlights the CPC's contention that as the seriousness of the offence alleged against a member rises, the discretion for the RCMP to respond as it deems appropriate must be removed and mandatory requirements inserted in its place.
CPC Recommendation No. 12: Create the position of National RCMP Member Investigation Registrar responsible to provide the CPC Chair with regular monthly reports for all member investigations undertaken for indictable offences, hybrid offences and summary convictions.
The CPC's policy analysis revealed that RCMP policies, while voluminous, are inconsistent and do not adequately address the handling of member investigations. Criminal investigations into members should not be treated the same as any other criminal investigation. To address the current void in effective and consistent policies and procedures related to the handling of member investigations, the CPC recommends the following key changes:
- Criminal investigations of RCMP members into allegations of serious injury, sexual assault or death in hardship or remote postings must be consistent with all other member investigation protocols, no exception.
- An administrative review is mandatory for all member investigations.
- The RCMP establish formalized MOUs for every RCMP division to ensure the mandatory referral of member investigations to an external police service is consistent and documented. At present, only New Brunswick (J) Division, Nova Scotia (H) Division and Newfoundland (B) Division have formalized MOUs in place.
Recommendation No. 13: The RCMP should formalize a memorandum of understanding for every division across the country to ensure consistency in the referral of member investigations to an external police service.
Where it is deemed appropriate for the RCMP to handle its own member investigation or where an RCMP member forms part of the investigative team (led by an external police force), the following policy recommendations would apply.
- Create an RCMP integrated manual to specifically address procedures for investigations undertaken by the RCMP into one of its own members. This integrated manual should have links to any additional relevant policies for ease of reference. Key features to be included in the integrated manual:
- CPC recommended investigative team structure:
- Qualified primary investigator at least one rank higher than that of subject member;
- A minimum of two members required for every member investigations (including for subject and witness officer interviews) [the CPC found that 17 of 28 cases reviewed had only a single member assigned];
- Qualifications of investigative team mandatory [as per recommendation];
- Workload of members assigned to member investigations reassigned or adjusted to prioritize member investigation accordingly;
- Timely completion of investigation preferably six months and not recommended to exceed one year;
- Assign liaison position to member of investigative team to ensure timely and effective communication with public, family and subject member;
- Self-identification of knowledge of subject member mandatory (i.e. conflict of interest form);
- Use of a probe for lower-end investigations.Footnote 96
- CPC recommended investigative team structure:
Recommendation No. 14: The RCMP should create an Integrated Manual to specifically address procedures for investigations undertaken by the RCMP into one of its members.
8. Complete List of CPC Findings and Recommendations
CPC Key findings
Finding No. 1: What is at issue today is no longer whether civilian review is desirable, but rather, how civilian involvement in investigations can be most effective.
Finding No. 2: The very nature of conducting criminal investigations requires that police, to some extent, must be part of the solution.
Finding No. 3: RCMP policies, while voluminous, are inconsistent and do not adequately address the handling of member investigations.
Finding No. 4: The lack of national and divisional data collection-or monitoring capacity-for member investigations (combined with varied divisional RCMP record-keeping and retrieval methods on this issue) demonstrates a lack of attention being placed on member investigations.
Finding No. 5: Overall, personal knowledge of subject member for primary investigators occurred 25% of the time and 4% of primary investigators were from the same detachment as the subject member.
Finding No. 6: There was a slightly higher likelihood of primary investigators personally knowing the subject member (14%) in remote and northern postings than in other more centralized locations (12%). However, there does remain a large number of primary investigators (12%) from more centralized divisions where external assistance is more readily accessible.
Finding No. 7: Overall, in the opinion of the CPC investigators, the use of expert witnesses in the cases was appropriate.
Finding No. 8: Overall, the number of team members assigned to the 28 investigations was inadequate.
Finding No. 9: Overall, the CPC found the structure and reporting relationships of the 28 cases reviewed to be partially or entirely inappropriate (68%).
Finding No. 10: Of the 28 files that the CPC investigators reviewed, it was found that in 17 of these files, the subject member and witnesses were investigated by a lone RCMP investigator.
Finding No. 11: Overall, the section or unit tasked with member investigations (including their mandates) lack uniformity across the country.
Finding No. 12: In the 28 case files reviewed, the qualifications of the investigators varied greatly. Some had all the major crime and related courses, while others had as few as two years experience in the General Investigation Section.
Finding No. 13: Overall, it was found that the investigations conducted by the Major Crime Unit were focused and completed in a timely fashion, as they had the ability, resources and the time to conduct the investigation. This was not found to be the case when the investigation was assigned to a Detachment Commander or General Duty or GIS member whose heavy workload was not adjusted accordingly.
Finding No. 14: Of the total 28 cases reviewed, six of which involved death, an administrative review was only undertaken in four cases: two of which were member-involved shootings (Manitoba (D) & Nunavut (V) Divisions); and two of which were in-custody deaths (Saskatchewan (F) and Alberta (K) Divisions).
Finding No. 15: The CPC found that, overall, the level of response was handled partially or entirely inappropriately (68%). Key concerns related to interviews being undertaken by lone investigators as well as inconsistent referral of cases to the appropriate investigative unit.
Finding No. 16: Of the eight charges laid, three (37.5%) resulted in successful convictions, while five (62.5%) resulted in no convictions.
Finding No. 17: In cases where an immediate response was required, such as member-involved shootings and in-custody deaths, the CPC investigators found that all necessary personnel were dispatched to the incident as soon as possible and practicable.
Finding No. 18: The CPC found that most investigations were completed in a timely manner. The files that took significantly longer to complete were not due to a lack of interest but rather to the heavy workload of the investigator in addition to general hindrances encountered (court dates, difficulty locating witnesses or complainants, employee absence, etc.).
Finding No. 19: Overall, the CPC found that the RCMP investigators were free of bias and were professional and conscientious in their approach to their assignments. It was also found that most subject members and witness members cooperated with the CPC investigators and conducted themselves in a professional manner.
Finding No. 20: After an in-depth review of the randomly selected cases, it was found that in most cases, the appropriate policies were complied with. In the few cases where it was found that some aspects of the related policies were not adhered to, they were minor in nature and did not appear to have any effect on the outcome of the investigation.
Recommendation No. 1: Overall, it is the CPC's contention that criminal investigations into members should not be treated the same as any other criminal investigation.
Recommendation No. 2: The CPC recommends that the rank of the primary investigator must be at least one rank higher than that of the subject member.
Recommendation No. 3: In order to reduce the length of time to conduct statutory investigations against RCMP members, it is recommended that member investigations be assigned to a team of (minimum) two members in a specialized investigative unit.
Recommendation No. 4: The RCMP should assign competent senior investigators with a proven track record in court who have completed the appropriate courses (e.g. sexual assault, major crime, interviewing and interrogation techniques and statement analysis); who can effectively interview witnesses with strong analytical skills.
Recommendation No. 5: Workload of members assigned to member investigations should be reassigned or adjusted to prioritize member investigations accordingly.
Recommendation No. 6: Special attention should be paid to enforce the RCMP requirement to consult with the Crown prior to laying any charges against members, given the particular need for independence and impartiality in member investigations. The RCMP should also undertake a review regarding recommendations made to the Crown in cases involving RCMP members.
Recommendation No. 7: Given the sensitivity and transparency required for member investigations, it is recommended that administrative reviews be undertaken in all cases of serious injury, sexual assault or death.
Recommendation No. 8: The RCMP should consider applying the use of the "probe"Footnote 97 to lower-end investigations in all divisions.
Recommendation No. 9: The RCMP could consider recommending that the Officer in Charge of the Criminal Operations Section be the appropriate recipient of the probe report in order to determine whether or not a lower-end investigation should proceed to a statutory investigation.
Recommendation No. 10: Historical cases require expertise not typical of most investigators. It is therefore recommended that these types of cases be handled by a specialized unit at the national or regional level.
Recommendation No. 11: Policy guiding criminal investigations of RCMP members should be standardized nation wide. This would allow for the statutory investigations into RCMP members to be conducted uniformly across the country.
Recommendation No. 12: Create the position of National RCMP Member Investigation Registrar responsible to provide the CPC Chair with regular monthly reports for all member investigations undertaken for indictable offences, hybrid offences and summary convictions.
Recommendation No. 13: The RCMP should formalize a memorandum of understanding for every division across the country to ensure consistency in the referral of member investigations to an external police service.
Recommendation No. 14: The RCMP should create an Integrated Manual to specifically address procedures for investigations undertaken by the RCMP into one of its members.
Pursuant to paragraph 45.42(3)(a) of the RCMP Act, I respectfully submit my Interim Report.
Paul E. Kennedy
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