Appendices: Public Interest Investigation into RCMP Member Conduct Related to the 2010 G8 and G20 Summits
Appendix A: Initial Complaint Letter from the Canadian Civil Liberties Association
Mr. lan McPhail, Commission Chair
Commission for Public Complaints
Against the RCMP
7337 137 Street, Suite #102
Surrey, BC V3W 1A4
Dear Mr. McPhail:
On behalf of the Canadian Civil Liberties Association, I am writing to lodge a formal complaint under Section 45.35 of the Royal Canadian Mounted Police Act in relation to the RCMP's conduct during the G8 and G20 Summits held in Toronto and Huntsville, Ontario. As you are undoubtedly aware, police activity during these Summits resulted in significant violations of Canadians' constitutional liberties. The RCMP was the lead police agency for both the G8 and G20 Summits and played a significant role in the planning and implementation of Summit security. Until the RCMP is held accountable for its actions during the G8 and G20 Summits, lingering questions will remain that threaten to further erode the public's already fragile confidence in the service. The CCLA had 50 independent human rights monitors at the G20 Summit. Based on their observations, we published a preliminary report on G20 policing on June 29th, a copy of which is enclosed for your review. Our monitors observed many troubling incidents during the G20 Summit, some of which are further described below.
While the CCLA considers a federal public inquiry to be the best mechanism to address this situation, we also believe that the Commission for Public Complaints Against the RCMP (CPC) has a vital role to play in ensuring accountability for the RCMP's actions during the G8 and G20 Summits. Accordingly, the Canadian Civil Liberties Association requests that the Commission provide for an investigation of the extent to which the RCMP was involved in the following matters and the extent to which its members' conduct breached constitutional, international and professional standards:
The RCMP's Role In G8 And G20 Security Planning
As a key member in the Integrated Security Unit, the RCMP was primarily responsible for securing the Summit site and surrounding areas and ensuring the safety and security of Internationally Protected Persons. These responsibilities encompassed a significant decision-making role with respect to the location of the massive fence surrounding the G20 Summit site and the measures that were taken to secure that fence and the area within it. Cordoning off large areas of the city impairs vital democratic rights and freedoms. Section 7 of the Charter guarantees individual liberty, including freedom of movement. Sections 2(b), (c) and (d) of the Charter guarantee freedom of expression, freedom of peaceful assembly and freedom of association. The Charter requires that any infringement of individual rights and liberties-including restrictions due to the establishment of security perimeters-impair rights as little as possible. The establishment of security perimeters was addressed at the APEC Inquiry. In the Commission's Interim Report, Mr. Hughes noted that a fence line designed to significantly distance protesters and maintain a "retreat-like atmosphere" could well violate the Charter. To the extent that the conduct of the RCMP contributed to such conditions during the G20, the service and its members must be held accountable.
RCMP Infiltration And Surveillance Before And During The Summits
According to the Parliamentary Budget Office, the RCMP was allocated $507-million for summit security and deployed nearly 5000 officers. An untold number of CSIS agents were also deployed. Both agencies participated in infiltration/surveillance operations in the months preceding the Summits to gather intelligence on protest groups.
The use of such tactics, particularly in relation to non-violent political groups, raises troubling concerns for civil liberties. As such, it is imperative that the CPC review the RCMP's surveillance activities prior to and during the Summits to determine whether they were in accordance with Canadians' rights to freedom of expression and association. Such a review should inquire into how many groups were subject to infiltration/surveillance and whether those groups had an actual connection to criminal or injurious conduct. Particular attention should be given to the RCMP's role in the surveillance of student groups from Quebec and the extent to which such groups may have been unwarrantedly targeted for heightened scrutiny.
Many protesters have complained to the CCLA about being approached by police officers prior to the Summit, voicing concerns that police may have overstepped appropriate boundaries in pursuing pre-Summit intelligence at individuals' homes or places or work. As such, the CPC's investigation should inquire into whether there were any limits on the scope of activities that RCMP informants could engage in while working undercover in protest groups. Specifically, the CPC should probe whether there were limits imposed on the scope of intelligence gathering strategies, the encouragement of particular demonstration tactics, or the organization of particular demonstrations leading up to the Summits.
Excessive Force, Mass Detentions And Mass Arrests
By the end of the G20 Summit, 1105 people had been arrested on the streets of Toronto and a far greater number had been detained. Peaceful protests had been aggressively dispersed and constitutional rights had been curtailed. In many case, police responses were completely disproportionate to any potential security threats. Indeed, excessive force was used against crowds of peaceful protestors and passersby. To our knowledge, the RCMP was not the lead police service involved in these actions beyond the perimeter of the fence; however, the RCMP was responsible for developing much of the G20 policing strategy and it must be held accountable for its involvement in these actions. Below we draw your attention to some of the many examples of excessive policing practices during the G20 Summit. We respectfully ask that you inquire into whether the RCMP participated in, was consulted as part of, or communicated intelligence or information that justified these actions:
1. The Dispersal of Peaceful Protesters at Queens Park on June 26th, 2010
Prior to the G20 Summit, the Integrated Security Unit announced that Queen's Park was a "designated protest zone". Protestors were strongly encouraged to congregate at Queen's Park and use this site for peaceful assemblies and demonstrations. However, by 6pm on June 26th, over one hundred police in riot gear had advanced upon the crowd of peaceful protestors gathered at Queen's Park and ordered them to leave. Police beat their batons against their shields, proceeding in an 'advance and wait' pattern upon protestors, forcing them from the designated protest space at Queen's Park. Police on foot and/or mounted on horses advanced blocking the crowds from moving south on University, and pushing the crowds north. A large presence of unmarked police cars and minivans were lined up south of the perimeter.
Protestors remarked "why are you doing this" and "this is a peaceful protest". Witnesses observed one individual being pushed to the curb, face on the pavement, while an officer kept a knee on the person's head. Other individuals were pulled from the crowd by police, dragged behind police lines, pushed to the ground, had their hands restrained, and were arrested. One of the CCLA's monitors observed a horse running over a protestor. Observers also witnessed police firing guns with what appeared to be blanks or rubber bullets.
At approximately 7:50pm, police continued to push the crowds north, and stated "Move back or you will be arrested. The police are advancing"; "back up, back up"; or "move, move. Now. Move it", and "Please clear the park". Protestors were heard asking "This is the designated protest area, why do we have to leave the park?". The police continued to advance upon the crowd, stopping, and then resuming their advance. One officer in the line had his gun raised and pointed at the crowd. The crowd was eventually pushed out of the park in this manner, with three lines of officers forcing the crowd's dispersal. Police were seen holding their shields up, wielding batons, and pushing protestors back.
2. Detentions and Mass Arrests at the Esplanade
A large crowd of protestors gathered in front of the Novotel on the Esplanade, on the evening of June 26th, 2010. Most of the crowd was sitting, following chants by some of the protestors to "sit down" and "peaceful protest". The police engaged some members of the crowd to ask questions, and observers noted the conversations to pass peaceably and uneventfully. Suddenly, pairs of police began to approach the crowd, grab seated demonstrators, and remove them with their arms behind their backs. It became clear that the protestors were not allowed to leave the area, which was blocked by buildings or by police dressed in riot gear. A member of the crowd announced to the police "we are not under arrest; you do not have the right to contain us here with no way out".
Over a twenty-minute period police began to move periodically forward, confining the crowd to a smaller and smaller space. No announcement was made to the crowd, until the police called upon the crowd to be quiet, and announced that everybody was under arrest. Over the next three hours, individuals trapped on the Esplanade in police lines were arrested-their hands restrained by metal cuffs and then, after processing which in many cases took hours, by plastic zip ties-and removed from the Esplanade by bus or van to the Eastern Avenue Detention Centre. Two CCLA monitors were arrested despite their identification.
3. Prolonged Detention and Mass Arrest at Queen and Spadina
On the evening of June 27th, 2010, individuals who were protesting peacefully, journalists, and passersby at Queen St. W. and Spadina Avenue were contained by police, hemmed in, and not allowed to leave. During this time, the Canadian Civil Liberties Association received calls from members of the public who reported that they had not been protesting, wanted to go home, but were boxed in on all sides by the police and not permitted to leave. These individuals expressed fear and frustration, and were at a loss as to how to get out of the situation.
The police charged on peaceful protestors, preventing a peaceful demonstration. Mass arrests occurred and individuals were transported to the Eastern Avenue Detention Centre. Others were detained on site, in the rain, or kept for hours in vans, and denied requests to use washroom facilities. Some individuals report being taken to a police station in Scarborough and then released hours later into the night. Some individuals reported that their property was damaged as a result of long-term exposure to the rain. Three of the CCLA's legal monitors were arrested.
4. Arrests and Police Conduct Outside the Eastern Ave.Detention Centre
Approximately 100 protestors gathered the morning of June 27th, 2010 at the Eastern Avenue Detention Centre, in a "celebratory" atmosphere. There was cheering as individuals were released from inside the Detention Centre; a demonstrator played guitar. Protestors also chanted peacefully, including the chant "peaceful protest". Initially, there were only minimal police-about 5-10-between the crowd and the Detention Centre.
Then more police arrived in unmarked vans. Several (approx. 5) plain-clothed police jumped out of one of the vans and ran into the crowds, where they proceeded to grab at least three people and roughly remove them from the crowds. One of the people was thrown into the back of the van, and the van sped off extremely quickly. Two other people were pulled out of the crowd, one man and one woman. They were treated roughly, and forced to lie on the ground with a police officer's knee in the woman's back, and a police officer's boot on the man's head. These people were held down against the pavement.
Riot police began to appear in dozens. The riot police lined up in front of the detention centre. Some kind of weapon was fired upon the crowd emitting white smoke.
Protestors were ordered to leave. Protestors and monitors were very confused as to why the police used excessive force by firing indiscriminately upon the crowd, and dispersing the legal and peaceful demonstration.
5. Mass arrests at the Graduate residence
Police raided the University of Toronto's Graduate Students' Union building early in the morning on Sunday June 27th, arresting a large number of individuals who had been billeted in the building's gymnasium over the weekend. The raid was reportedly executed on the basis of "information" rather than as a result of a disturbance at the building. A CCLA monitor present on the scene counted 97 people being arrested, many of whom were in their pyjamas. One RCMP officer was observed at the site of the arrests, which resulted in the detention of a large group of people from Quebec.
In the CCLA's view, these incidents constitute a failure to protect and facilitate peaceful assembly and the exercise of freedom of expression through protest. They also constitute illegal containment, detention and mass arrest. The CCLA calls upon the CPC to investigate and examine the role that RCMP officers and staff played in decisions involving the use of force, arrests and detentions during the G8 and G20, both in the context of the above mentioned incidents and beyond.
Unlawful Conditions Of Detention
Many persons arrested during the G20 Summit were subsequently sent to a temporary detention centre which police had established on Eastern Avenue in Toronto's east end. Reports about the conditions at this detention centre are highly troubling, indicating a widespread lack of respect for both detainees and their Charter rights. Many persons detained at the Eastern Avenue detention centre were kept with their hands bound for the duration of their detention. Although some detainees complained that their hands were bound too tightly, the hand ties were not adjusted in a timely manner. Inappropriate comments, including sexually inappropriate comments, were apparently made by police to detainees and several individuals complained of being taunted by police. Some detainees were not given adequate water - over an eighteen hour period one detainee tells us only two Dixie-sized cups of water were provided and one of those cups contained brown, undrinkable water. At least one detainee was diabetic and requested insulin for hours before being attended to, and then apparently was administered the wrong type of insulin for his condition.
Chaotic conditions prevented access to lawyers and family members in an appropriate timeframe. Indeed, many persons held at the Eastern Avenue detention centre were not permitted to phone anyone during their detentions, including legal counsel. There was a failure to provide adequate food, water, proper medical attention, and bathroom conditions/facilities. The conditions did not comply with basic standards of detention. For example, a special needs person was deprived of his wheelchair, and released over ten hours after detention into the street without his wheelchair.
The CCLA believes that the detention conditions at the Eastern Avenue detention centre contravened due process rights guaranteed by the Charter, and Canadian and international standards of detention given the lack of access to counsel, lack of food, inadequate availability of water, and inadequate medical attention. It is unclear to what extent the RCMP was involved in running the Eastern Ave. detention centre; however, in the CCLA's view, the RCMP's primary role in organizing and planning security for the G20 Summit imposes upon it an obligation to ensure the presence of adequate detention facilities.
The CCLA believes that the above-mentioned police action violated constitutional rights guaranteed in the Canadian Charter of Rights and Freedoms including:
- The right to peaceful assembly and association;
- The right to freedom of expression;
- The right to be free of unreasonable search and seizure;
- The right to be free from arbitrary arrest and detention;
- The right to liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice;
- The right to due process including the right to legal counsel upon arrest;
- The right to be free from discrimination, including on the basis of age, sex, and national origin.
The CCLA is also concerned that police action during the G8 and G20 Summits violated international standards of policing including:
- The duty of police to protect and facilitate peaceful protesting;
- The duty of police to ensure that any arrests made during an assembly are based upon a reasonable suspicion that an individual is about to commit a crime or offence; arrests made during an assembly must be limited to persons engaging in conduct that is creating a 'clear and present danger of imminent violence';
- The duty of police to ensure that adequate food, water and hygiene-including gender appropriate washroom facilities-are provided for detainees and that adequate facilities are provided to ensure access to a lawyers and family.
At this point, a thorough investigation of the RCMP's conduct during the G8 and G20 Summits is required to clear the air and ensure that public confidence in the RCMP is not further eroded. This investigation must examine the policy and conduct of RCMP officers prior to and during the G8 and G20 Summits, with a focus on the above-mentioned issues and incidents. Accordingly, the Canadian Civil Liberties Association calls upon the Commissioner to treat this letter as an official complaint and to launch an investigation at the earliest opportunity.
Nathalie Des Rosier
Appendix C: Summary of Findings and Recommendations
Finding No. 1: The RCMP planning process was robust and thorough. The Commission found no indication that planning was influenced by anything other than legitimate security concerns.
Finding No. 2: The Commission saw no indication that security zones were created or sized to ensure that protesters were kept farther away from Internationally Protected Persons than was necessary, or that RCMP decisions in their respect were based on any inappropriate considerations.
Finding No. 3: The Public Affairs Communications Team employed appropriate strategies to provide information to the public leading up to and during the Summits.
Finding No. 4: The official G20 Summit security website should have contained information regarding the Public Works Protection Act inasmuch as it would potentially affect the public.
Finding No. 5: The Commission found neither intent nor action on the part of the Community Relations Group to obtain intelligence aimed at preventing groups from having their issues heard.
Finding No. 6: Community Relations Group members' records were not consistently stored in the Event Management System database.
Finding No. 7: The Joint Intelligence Group (JIG) fulfilled its mandate by conducting intelligence investigations and preparing and/or contributing to analytical reports.
Finding No. 8: The JIG appropriately identified and assessed criminal threats to the Summits.
Finding No. 9: Human rights were appropriately considered by JIG management.
Finding No. 10: The Commission saw no indication that RCMP undercover operators or event monitors acted inappropriately or as agents provocateurs.
Finding No. 11: The RCMP did not make or assist in any arrests at Queen 's Park.
Finding No. 12: The RCMP did not make any arrests, nor was it involved in detaining the crowd at The Esplanade on June 26, 2010.
Finding No. 13: The RCMP Public Order Unit (POU) Commander involved in the kettling of individuals at Queen Street and Spadina Avenue on June 27, 2010, took reasonable steps to ensure that his orders were legitimate in the circumstances.
Finding No. 14: The RCMP POU members involved in the kettling of individuals at Queen Street and Spadina Avenue on June 27, 2010 acted reasonably in executing the orders from the Toronto Police Service Major Incident Command Centre.
Finding No. 15: The involvement of the RCMP POU members in the kettling of individuals at Queen Street and Spadina Avenue on June 27, 2010, while inconsistent with RCMP POU policy and training, which maintains that crowds should be provided an egress route, was reasonable under the circumstances.
Finding No. 16: The RCMP was not present outside the Prisoner Processing Centre on Eastern Avenue on June 27, 2010.
Finding No. 17: RCMP members did not participate in the June 27, 2010, arrests at the University of Toronto.
Finding No. 18: The Commission found no information to suggest that RCMP members were engaged in the unreasonable use of force.
Finding No. 19: The RCMP played no role in the planning for, or management of, incidents at or near the Eastern Avenue Detention Facility.
Recommendation No. 1: That the RCMP more effectively integrate into its planning function for major events an awareness of the possibility of ex post facto review and adopt commensurate document organization practices and guidelines for appropriate disclosure.
Recommendation No. 2: That the RCMP reflect in its agreements with other police agencies, to the extent possible, that RCMP note-taking guidelines require members to retain notes for, among other things, subsequent review of their conduct.
Recommendation No. 3: That all contacts be recorded and reported in a comprehensive and consistent manner to ensure proper and adequate recording of actions taken.
Recommendation No. 4: That the RCMP ensure that a formal, integrated post-incident process is established for all major events to ensure that deficiencies as well as best practices are identified.
Recommendation No. 5: That the RCMP consider the establishment of an enhanced approval and reporting structure for sensitive sector criminal intelligence investigations as a best practice for future major events where such investigations are contemplated.
Recommendation No. 6: That the RCMP develop and implement policy requiring best efforts to be made respecting entering into comprehensive agreements with other police agencies prior to beginning integrated operations, addressing such issues as command structure, strategic, tactical and operational levels, and the operation and application of policies and operational guidelines.
Recommendation No. 7: That the RCMP make best efforts to establish, together with its partners, clear operational policies prior to an event where integrated policing will occur to ensure consistency of application.
Appendix D: Legal Opinion: Jurisdiction of Authority at the 2010 G8/G20 Summits
Security for the June 2010 Summit in Toronto was principally provided by the RCMP and TPS (Toronto Police Force), with the support of other police forces.
IPPs (Internationally Protected Persons) were protected by a series of concentric rings:
- CAZ ("Controlled access" zone) in the middle
- RAZ ("Restricted access" zone) beyond that
- IZ ("Interdiction zone") beyond that
- OZ ("Outside zone") beyond that.
The (federal) Foreign Missions and International Organizations Act:
- gives "primary responsibility" to the RCMP for security of intergovernmental conferences
- the RCMP "may take the appropriate measures, including controlling, limiting or prohibiting access to any area and to an extent and in a manner reasonable in the circumstances", but not to be "read as affecting the powers that peace officers possess at common law or by virtue of any other federal or provincial Act or regulation".
The (provincial) Public Works Protection Act expands police powers of provincial jurisdiction in or around a "public work", including search and arrest without warrant in or approaching a public work; the Government of Ontario passed a regulation defining a certain G20 area as a public work.
There are three points on the continuum of police empowerment:
- no authority to act
- authority to act
- required to act.
- are peace officers for every part of Canada
- have "all the powers, authority, protection and privileges that a peace officer has by law"
- may enforce provincial laws where they are employed.
This authority is not exclusive, but concurrent with the police of (local) jurisdiction.
Ontario provincial police officers have authority anywhere in Ontario.
A municipal police force in Ontario (e.g. TPS) is required to act within their municipality.
With regard to swearing in RCMP officers as special constables:
- they are then able to enforce Ontario law
- they can enforce the laws in the province (or territory) if the officer is "employed" in that jurisdiction, which is understood to mean not the classic employer-employee relationship, but a jurisdiction with whom the RCMP has a (contractual) arrangement
- there is no RCMP-Ontario arrangement, so RCMP officers are not "employed" in Ontario, and do not have that type of consequential authority to enforce Ontario law
- however, swearing in RCMP officers as special constables (pursuant to Ontario's Police Services Act gives that authority).
Terms of deployment between police forces are generally expressed in a MOU (memorandum of understanding),which would indicate whose command, legislation, policy and operational guidelines deployed personnel are subject to.
Swearing in as special constables under the (Ontario) Interprovincial Policing Act, is a different situation, as RCMP officers are statutorily excluded from same.
The provincial disciplinary exposure of a special constable is different from that of a "full" police officer.
For constitutional law reasons, as well as statutory authority, there remain grey division lines between:
- exclusive versus concurrent jurisdiction
which lines could be clarified in an express MOU between the RCMP and police of jurisdiction.
Though there was a Command and Control Document (C2 Document) and a Strategic Concept of Operations (SCO Document) there was no RCMP-TPS MOU to cover what was missing, including:
- neither police force relinquished their respective authority or responsibility
- the RCMP had primary, but not exclusive, responsibility
- the TPS remained the police force of jurisdiction, with the assistance of the RCMP and other forces.Footnote 1
In addition, no formal "arrangement" per the Foreign Missions and International Organizations Act was entered into between Canada and Ontario, the reason given that existing mutual support and efforts among security partners was already "outstanding".
The constitutional doctrine of paramountcy indicates that when federal-provincial division of powers is imprecise, resulting in overlapping laws within the competence of their respective legislators, the federal law will prevail to the extent of the inconsistency. An alternative doctrine called 'interjurisdictional immunity' is now regarded as having very limited application. Indeed, in the PHS Community Services Society decision of September 30, 2011, the Supreme Court of Canada emphasizes that the more flexible concepts of double aspect and cooperative federalism permit significant overlap between federal and provincial areas of jurisdiction, making recourse to either doctrine less likely.Footnote 2
The Command and Control (C2) Document was signed by all security partners, whereby the RCMP is:
- responsible for overseeing security planning and operations
- co-ordinating operational security requirements
- lead security agency
- responsible for operational resolution of any 'incidents', and
- retained overall responsibility
The Strategic Concept of Operations ("SCO") Document was prepared (by the RCMP) as an internal strategic planning guide, and does not appear to have been the subject of any specific agreement with security partners, though does describe the RCMP as being the "lead agency".
Though RCMP officers could have been authorized to enforce provincial laws in any and all zones (by being sworn in as special constables pursuant to the Ontario Police Services Act) we understand they were only deployed as special constables:
- during the June 20-23, 2010 pre-summit period
- prior to the security perimeter coming into effect June 25, 2010.
There is no judicial consideration of "primary responsibility" to assist in interpreting same in the context of joint police operations, though it may be that "primary responsibility" contemplates other security partners having "secondary responsibility".
The RCMP were required to control and act in both the CAZ and RAZ. Had a threat to Summit security or IPPs have manifested itself in the IZ or OZ, the RCMP would equally be required to act.
One police force does not have the power to direct another (police) force. Inter-police work is a matter of cooperation and agreement - the C2 Document both recognizes the RCMP's lead responsibility, including authority to direct, (in the CAZ and RAZ, not the IZ and OZ) and the relative responsibilities. The TPS, through the police jurisdiction, agreed to the command authority established by the RCMP.
Because it is not clear whether statutory provisions confer authority or requirement on the RCMP to direct other forces, the C2 Document is left as the only source of authority and requirement. It can be questioned whether the C2 Document is legally enforceable by any signatory. The C2 Document also expressly provides each police force (provincial, regional, municipal) retains their responsibilities as police of jurisdiction.
Protection of IPPs and securing international summits is a federal jurisdiction.
There is some authority for the principle that police forces have a professional and binding obligation to cooperate.
TPS is, and it was agreed, that the TPS
- was the police of jurisdiction in Toronto
- would "support the RCMP in its federally legislated mandate".
- was authorized and required to act in the CAZ and RAZ though did not have primary responsibility and was required (pursuant to the C2 Document) to follow RCMP direction
- was authorized and required to act in the IZ and OZ.
- was not authorized to direct the RCMP in the CAZ and RAZ
- was authorized to direct the RCMP in the IZ and OZ, by agreement.
As to regulatory codes of conduct, each force remains bound by their own, irrespective of which zone they were policing in – for example, even if the RCMP officers were operating under the direction of TPS in the IZ or OZ.
As the G20 area was designated as a "public work":
- peace officers (provincial, municipal, and arguably federal) properly had the additional powers (to stop, search, refuse entry) conferred by the (Ontario) Public Works Protection Act ("PWPA")
- the PWPA does not impact (or conflict with) existing federal legislation providing authority and responsibility to the RCMP, as additional powers (to the extent applicable) are given, not inconsistent ones.
During the G20 Summit in Toronto in June 2010, security was principally provided by the RCMP and the Toronto Police Service (TPS), with the support of other police services arranged for by the TPS (including the Ontario Provincial Police, Calgary Police Service, London Police Service.) Approximately 300 RCMP members were sworn as Special Constables under Ontario's Police Services Act, (PSA) to support the TPS with pre-Summit policing but most, including the members of public order units (commonly called "riot squads" or "tactical units") were not. Most RCMP members worked within the inner controlled access zones, however, the 300 noted above, as well as several public order units, were deployed in the Outside Zone (described below).
Internationally Protected Persons (IPPs) were protected by a series of concentric rings:
- The "controlled access zone" (CAZ) referred to the areas of downtown Toronto in which the G20 summit took place and in which most IPPs were housed. The CAZ was encircled by a fence.
- A second fence designating a "restricted access zone" (RAZ) was also erected, and encircled the CAZ, as well as hotels in which delegates were lodged, certain other locations, and certain transportation corridors between those areas.
- Encircling the CAZ and the RAZ was a third fence delineating the "interdiction zone" (IZ). The IZ was the outer security area as designated by the RCMP and its partner agencies during planning for the G20 Summit.
The term "outside area" shall be used to describe the area beyond the interdiction zone, being the "outside zone" (OZ).
In addition to the Criminal Code, other statutes and common law, certain statutory provisions confer specific powers on RCMP members when ensuring the security of IPPs. These include section 18 of the RCMP Act, section 17 of the RCMP Regulations 1988, section 6 of the Security Offences Act, and the UN Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents.
The Foreign Missions and International Organizations Act (FMIOA )provides:
10.1 (1) The Royal Canadian Mounted Police has the primary responsibility to ensure the security for the proper functioning of any intergovernmental conference in which two or more states participate, that is attended by persons granted privileges and immunities under this Act and to which an order made or contained under this Act applies.
(2) For the purpose of carrying out its responsibility under subsection (1), the Royal Canadian Mounted Police may take appropriate measures, including controlling, limiting or prohibiting access to any area and to the extent and in a manner that is reasonable in the circumstances.
(3) The powers referred to in subsection (2) are set out for greater certainty and shall not be read as affecting the powers that peace officers possess at common law or by virtue of any other federal or provincial Act or regulation.
In Ontario, the Public Works Protection Act (PWPA) provides for a number of expanded powers that may be exercised in or around any area designated a "public work". Notably, a guard appointed under the Act or a peace officer is empowered to search and arrest without warrant within an area specified as a public work or on approach to that area. On June 2, 2010, the Government of Ontario passed regulation 233/10Footnote 3 pursuant to the PWPA defining the area within a certain perimeter as a public work for the purposes of the PWPA. The regulation was filed on June 14, 2010. The regulation was not publicized although it was posted on the Ontario government website e-laws on June 16. It was not Gazetted until July 3, 2010, after the event had terminatedFootnote 4. The regulation was revoked on June 28, 2010.
The Commission seeks a legal opinion with respect to the following questions:
- 1) To what extent are RCMP members (including those sworn as Ontario Special Constables) authorized and/or required to exercise police powers within each of the controlled access zone, restricted access zone, interdiction zone and outside area? To what extent are RCMP members authorized and required to direct local police within those zones?
- 2) To what extent are local police authorized and/or required to exercise police powers within each of the controlled access zone, restricted access zone, interdiction zone and outside area? To what extent are local police authorized and/or required to direct RCMP members (including those sworn as Ontario peace officers) within those zones?
- 3) Within each of the controlled access zone, restricted access zone, interdiction zone and outside area, and for both RCMP members (including those sworn as Ontario peace officers) and municipal police officers, does a particular police agency's policy (regarding acceptable standards of conduct) become paramount? Do police officers continue to be bound by the policies of their respective agencies?
- 4) What impact, if any, does the FMIOA or other relevant federal legislation have within the area designated a public work pursuant to the PWPA?
Scope of Opinion
This opinion is limited to answering the four specific questions, as stated above, in the context of the G20 Summit held in Toronto in June 2010.
This opinion is not a direct response to the complaint lodged by the Canadian Civil Liberties Association with the Commission, dated October 18, 2010, but rather a background legal advisory on issues of concern to the Commission. There is no intention, nor instruction, in our preparation of this opinion to evaluate the actual conduct of the RCMP or other police forces in discharging police duties during the G20 Summit.
Our assumptions include:
- a) In reaching the conclusion we have assumed/relied on the accuracy of the information provided in the reviewed documents.
- We assume that control of the CAZ and the RAZ was required to ensure the security for the proper functioning of the G20 Summit , and that control of the IZ and OZ was not required.
- b) We assume that a RCMP officer is "employed" in the sense of " the prevention....of offences against the laws in force in any province in which they may be employed" (s.18(a) of the Royal Canadian Mounted Police Act), where the officer is working in a province with which the RCMP has an arrangement under s.20 of the Royal Canadian Mounted Police Act.
- c)This is sometimes called "contract policing". There is no such arrangement in Ontario which has its own provincial and municipal police forces.
This opinion is subject to the following qualifications:
- a) This opinion is limited to the laws of Ontario and federal laws applicable therein.
- b) The information, estimates and opinions contained herein are obtained from sources considered to be reliable, however, no representation is made with regard to the reliability thereof.
- c) This opinion contemplates facts and conditions existing as of July 2011. Events and conditions occurring after that date have not been considered.
Discussion and Analysis
A. Basic Principles
The following principles are foundational to our analysis:
1) There is a continuum of empowerment of a police force, from no authority, to authority, to being required to act.
We see three points on the continuum of police force empowerment: 'no authority', 'authority', and 'required to act' between which the lines, to use a legal phrase more used in the U.S., are not always bright.
- We must understand what the different steps on the continuum are.
- No authority: e.g. A police officer from the Calgary police force has no authority to act Ontario (unless special measures are taken, such as swearing in as a special constable).
- Authority to act (or 'have jurisdiction'):
- RCMP have authority to act anywhere in Canada:
"9. Every officer and every person designated as a peace officer under subsection 7(1) is a peace officer in every part of Canada and has all the powers, authority, protection and privileges that a peace officer has by law..." [Emphasis added] (RCMP Act, s.9)
"10 In reviewing the scheme and object of The Royal Canadian Mounted Police Act it clear that section 3 and section 9 of that Act operate to render the Royal Canadian Mounted Police officers part of a "police force for Canada" and peace officers "for every part of Canada" with "all the powers, authority, protection and privileges that a peace officer has by law". The language used by parliament is clear, broad and unambiguous as it was their obvious intention to create a police force that operates without jurisdictional barriers throughout the entire country of Canada. There is nothing in the scheme or object of The Royal Canadian Mounted Police Act that derogates from that basic presumption. This court notes that when there is a limitation on their duties it is clearly stated. For example, section 18 of The Royal Canadian Mounted Police Act limits the Royal Canadian Mounted Police to enforcing only the provincial laws of the province in which they are employed.
19 When examining [sic] Section 21 of The Police Act 1990 [of Saskatchewan] one notes there is no clear language to imply derogation from the rights of an R.C.M.P. peace officer. The Act simply states that the R.C.M.P. are responsible for policing when there is an agreement between the province and the federal government. It further states that they are not responsible for policing a municipality unless there is an agreement. They certainly do not use words that the R.C.M.P. officer cannot or shall not provide police services in the municipality. As well, given the ultra vires statute construction doctrine, it would not be appropriate for provincial legislation to take away powers given by Federal legislation. This court therefore reads the provincial legislation in a manner in which the legislature is not taken to have exceeded it's jurisdiction. Therefore clearly The Police Act must be read in context as providing a manner of funding policing not a manner of taking away jurisdiction granted to R.C.M.P. officers by The Royal Canadian Mounted Police Act.
20 In coming to this conclusion the court is of a view that there is no good public policy reason for the R.C.M.P. to be excluded from operating in any specific geographic area. It would not make sense for the legislature to limit the opportunity for policing of a community by making sure that fewer police officers are able to act in any particular setting within the province." [Emphasis added] (R v Abrametz, (2000) 7 MVR (4th) 133 (Sask Prov. Ct.), paras. 10 and 18-20, affirmed in 2001 SKQB 129)
"34 Therefore, Cp. Popoff did have the lawful authority as a member of the RCMP to conduct the investigation of the accused's conduct and to make the breath demand, even though all of that occurred within the corporate limits of the City of Saskatoon, and when he was off duty. Neither the pertinent legislation nor the federal/provincial agreement act to preclude that nature of conduct, even in the absence of a specific policing contract between the RCMP and the City of Saskatoon." (R v Figley McBeth, 2004 SKPC 119, at para. 34)
"19 A member of the R.C.M.P. could make such a demand anywhere in Canada, as his territorial jurisdiction extends through out Canada under the R.C.M.P. Act, R.S.C. 1970, c. R-9." (R v Soucy, (1975) 23 C.C.C. (2d) 561 (N.B.C.A.) at para. 19)
- Note that this authority is not exclusive authority, but is rather concurrent jurisdiction with any other police force's local jurisdiction.Footnote 5
- Ontario provincial police officers have authority to act anywhere in Ontario:
"[42.](2) A police officer has authority to act as such throughout Ontario." (Ontario Police Services Act, s.42(2))
"Section 56 of the Police Act, R.S.O. 1980, c. 381 provides:
Every chief of police, other police officer and constable, except a special constable or a by-law enforcement officer, has authority to act as a constable throughout Ontario.
[Emphasis added by the court] This section alone clothes O.P.P. officers with jurisdiction province-wide". (R v Giancarlo, (1992) 36 M.V.R. (2d) 141 (Ont. C.A.) at para. 4)
- Required to act (or 'have responsibility' to act):
- A municipal police (e.g. TPS) is required to act within their municipality (e.g. Toronto):
"4.(1) Every municipality to which this subsection applies shall provide adequate and effective police services in accordance with its needs." (Ontario Police Services Act, s.4(1))
" Section 19(1) of the Police Services Act, R.S.O. 1990, c. P.15 provides that the Ontario Provincial Police have the responsibility to provide policing services to municipalities, which do not have their own police force. Section 19(1) of the Police Services Act provides that the Ontario Provincial Police have the responsibility to provide policing services to municipalities, which do not have their own police force. Section 19(1) provides:
19.(1) The Ontario Provincial Police have the following responsibilities: 1. Providing police services in respect of the parts of Ontario that do not have municipal police forces other than municipal law enforcement officers.
 The City of Toronto has its own police force, and therefore the Ontario Provincial Police do not have the responsibility to provide policing in Toronto." [Emphasis added] (Foster v ADT Security Services Canada Inc., 2006 CarswellOnt 5157 (S.C.J.), affirmed in 2007 ONCA 653)
Please note that being required to act is also not an exclusive jurisdiction. Different police forces could theoretically be required to act in a particular situation.
- "Duty" can be an ambiguous word because it has different meanings in different contexts. Distinguish requirement to act:
"17. (1) In addition to the duties prescribed by the Act, it is the duty of members who are peace officers to: [...] (b) maintain law and order in the Yukon Territory, the Northwest Territories and national parks and such other areas as the Minister may designate;" (RCMP Regulations)
from having general duty to preserve the peace and enforce crime:
"18. It is the duty of members who are peace officers, subject to the orders of the Commissioner,
(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada [...]" (e.g. Royal Canadian Mounted Police Act)
Officers who are working their shift are also said to be "on duty". Because of the possible confusion with respect to the meaning of duty, it will be avoided. This document will instead use the more precise expressions of "do not have authority to act", "have authority to act" (or "have jurisdiction") and "required to act" (or "have responsibility").
2) The impacts of swearing in special constables
The swearing of RCMP officers as special constables has two potentially material impacts:
- The first impact of swearing in RCMP officer as a special constable is that they would be able to enforce the laws of Ontario.
- RCMP officers are peace officers in every part of Canada per s.9 of RCMP Act. However, section 18(a) of the RCMP Act states that RCMP officers are only empowered to enforce federal laws, unless the officer is "employed" in a particular province in which circumstances they may also enforce the provincial laws of that province.
"18. It is the duty of members who are peace officers, subject to the orders of the Commissioner,
(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody;" (RCMP Act, s.18(a))
"[19 ...] It is of interest to note that by s. 18 of the said Act [the Royal Canadian Mounted Police Act], R.C.M.P. constables are restricted in enforcing the laws in force in any province in that they are given jurisdiction only in relation to provincial laws of the province in which they are employed." (R v Soucy, (1975) 23 C.C.C. (2d) 561 (N.B.C.A.)
"[10 ...] This court notes that when there is a limitation on their duties it is clearly stated. For example, section 18 of The Royal Canadian Mounted Police Act limits the Royal Canadian Mounted Police to enforcing only the provincial laws of the province in which they are employed." R v Abrametz, (2000) 7 MVR (4th) 133 (Sask Prov. Ct.)
- We understand that "employed" in this context does not mean an employer-employee relationship. Rather, "in which they are employed" means only a province with which the RCMP has an "arrangement" under section 20 of the RCMP ActFootnote 6:
"Arrangements with provinces
20. (1) The Minister may, with the approval of the Governor in Council, enter into an arrangement with the government of any province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the province and in carrying into effect the laws in force therein.
Arrangements with municipalities
(2) The Minister may, with the approval of the Governor in Council and the lieutenant governor in council of any province, enter into an arrangement with any municipality in the province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the municipality and in carrying into effect the laws in force therein." (RCMP Act)
- The RCMP does not have an arrangement pursuant to section 20 with Ontario (in contrast to the arrangement the RCMP has with Alberta or Saskatchewan, for example). Therefore, RCMP officers are not "employed" in Ontario and do not have the authority to enforce provincial laws in Ontario.
- Swearing RCMP officers in as special constables under section 53 of Ontario's Police Services Act empowers RCMP officers with the additional authority to enforce Ontario's provincial laws.
"Appointment of special constables
53. (1) With the Solicitor General's approval, a board may appoint a special constable to act for the period, area and purpose that the board considers expedient. R.S.O. 1990, c. P.15, s. 53 (1); 1997, c. 8, s. 33 (1).
(2) With the Solicitor General's approval, the Commissioner may appoint a special constable to act for the period, area and purpose that the Commissioner considers expedient. R.S.O. 1990, c. P.15, s. 53 (2); 1997, c. 8, s. 33 (2).
Powers of police officer
(3) The appointment of a special constable may confer on him or her the powers of a police officer, to the extent and for the specific purpose set out in the appointment." (Police Services Act)
- Depending on the particular details of the appointment, section 53(3) of the Police Services Act can confer on the special constable the power to enforce provincial laws:
"48 Pursuant to the Police Services Act, R.S.O. 1990, c.P15, a police services board may appoint special constables. The power to appoint is provided for in section 53(1) of the Act. Section 53(3) of the Police Services Act provides that "the appointment of a special constable may confer on him or her, the powers of a police officer, to the extent and for the specific purposes set out in the appointment". Section 30 of the Agreement between the Police Services Board and the Toronto Transit Commission dated May 9, 1997, confers on the special constables the powers of a police officer to enforce a certain number of statutes that are listed in that section of the Agreement. Suffice it to say that these powers extend, among others, to the Trespass to Property Act, and to sections 146 and 149 of the Provincial Offences Act. Therefore, when reading the Trespass to Property Act as well as the provisions of the Provincial Offences Act that allow a police officer to make an arrest pursuant to the Provincial Offences Act, special constables of the TTC have the powers of a police officer." (Ye v Toronto Transit Commission, 2009 CarswellOnt 8512 (S.C.J.))
- In addition to any limitations stipulated in the appointment of RCMP officers pursuant to section 53(1) of the Police Services Act, the terms of deployment of RCMP to another police service (and vice versa) are typically expressed in a memorandum of understanding or agreement including whose command, legislation, policy and operational guidelines such deployed personnel will be subject to.
- Note that swearing in as a special constable is different than being appointed under the Interprovincial Policing Act. These are different legislative schemes, both of which confer the powers of a police officer in Ontario. However, RCMP officers are explicitly excluded from being appointed under the Interprovincial Policing Act:
1. In this Act, [...]"extra-provincial police officer" means a police officer appointed or employed under the law of another province or a territory, but does not include a member of the Royal Canadian Mounted Police;
8. (1) The appointing official may make the requested appointment if he or she is of the opinion that it is appropriate in the circumstances for the extra-provincial police officer to be appointed as a police officer in Ontario." (Interprovincial Policing Act)
- The second impact of swearing in an RCMP officer as a special constable, is that the RCMP officer would become subject to the limited discipline set out for Ontario special constables. A special constable is not subject to the full discipline of a police officer under the Ontario Police Services Act. This is because of a combination of the PSA's definition of "police officer" and the scope of application of this statute's misconduct provisions per s.80.
- The PSA defines a "police officer" as excluding special constables.
2 (1) In this Act, [...]
"police officer" means a chief of police or any other police officer, including a person who is appointed as a police officer under the Interprovincial Policing Act, 2009, but does not include a special constable, a First Nations Constable, a municipal law enforcement officer or an auxiliary member of a police force;" [Emphasis added] (Ontario Police Services Act, s.2)
- The PSA states that only a "police officer" can be guilty of misconduct.
80. (1) A police officer is guilty of misconduct if he or she [...]"
- The only discipline to which special constables are subject is much more general. It is contained in PSA s.25
"Actions taken, auxiliary member, special constable, municipal law enforcement officer
(4.1) If the Commission concludes, after a hearing, that an auxiliary member of a police force, a special constable or a municipal law enforcement officer is not performing or is incapable of performing the duties of his or her position in a satisfactory manner, it may direct that,
(a) the person be demoted as the Commission specifies, permanently or for a specified period;
(b) the person be dismissed;
(c) the person be retired, if the person is entitled to retire; or
(d) the person's appointment be suspended or revoked." [Emphasis added] (Ontario Police Services Act (s.25(4.1))
- Therefore RCMP officers sworn in as special constables would be subject to facing a hearing and potentially having their special constable status revoked, thus returning the officer to the RCMP to consider other discipline as the employer.
3) Inter-Police Cooperation
The Canadian model of policing with federal, provincial and municipal police forces that (Quebec aside) share the same common law police powers and duties, as codified or varied by statutory authority, not surprisingly leaves some grey division lines between areas of exclusive versus concurrent jurisdiction and responsibility. This may be unavoidable, Canada's constitutional fulcrum lying as it does somewhere between Britain's federally centred policing authority and the U.S. (by virtue of U.S. constitutional law) state centred policing authority.
In a nutshell, the provincial power over the administration of justice under s.92(14) of the Constitution Act, 1982 includes the provision of police services. Ontario established a provincial police force and certain municipal police forces (like the TPS) which can enforce the federal Criminal Code, provincial statutes and municipal by-laws. Federally, Canada has established a federal police force, the RCMP, which can police all federal statutes passed under various s. 91 heads of power, including offences under the Criminal Code. Only in those provinces where the RCMP is under contract to provide provincial or municipal police services (not Ontario or Quebec), is the RCMP authorized to enforce provincial statutes or municipal by-laws.
As a practical matter this means that large scale international events, and in this particular case the G20 Summit involving IPPs, necessarily entail consultation and cooperation between different levels of police forces. This means joint planning and collaboration on security arrangements in advance of such events and joint command structures and understandings in place to maintain overall security and to manage specific incidents during the event.
Depending on respective sources of jurisdiction and responsibility, one policy agency may take the lead and another play a supporting role, but they typically refer to each other as "partner agencies" or "security partners". This reflects mutual respect and a common purpose to maintain the peace and protect life and property during a highly charged international summit, always having regard to the Charter's guarantee of freedom of expression and other rights and liberties.
The SCO Document and the C2 Document leave no doubt that much planning and effort went into ensuring the security for the proper function of the G20, even if on relatively short notice, but in the end the G20 Summit security command structures and the roles of the RCMP and the TPS were premised on these basic understandings:
- Neither police force relinquished their respective authority or responsibility;
- Whilst the RCMP had primary responsibility to ensure the security for the proper functioning of the G20 Summit, this was not exclusive responsibility
- And whilst the TPS remained the police force of jurisdiction for the City of Toronto before, during, and after the G20 Summit, they were assisted in meeting the increased demands of the Summit by deployment of RCMP and other police forces
- No express Memorandum of Understanding (MOU) was signed between the RCMP and TPS governing the period of the G20 Summit
- No formal "arrangements" within the meaning of s. 10.1(4) of the FMIOA were made between the federal Minister of Public Safety and Emergency Preparedness, with the approval of Cabinet, and the Ontario government to facilitate consultation and cooperation between the RCMP and TPS re performance of duties assigned to peace officers in relation to s. 2 offences under the FMIOA .
Indeed as close to the June 26-27 Summit dates as June 11, the Deputy Minister of Public Safety (Canada) wrote the Deputy Minister of Community Safety (Ontario) to recognize the consultation and cooperation between all provincial and municipal security partners with the RCMP:
"Thank you for your correspondence of May 7, 2010, in relation to the Foreign Missions and International Organizations Act (FMIOA).
Consultation and cooperation between all security partners is, of course, critical for the success of the upcoming G8 and G20 Summits. Extensive security planning has taken place over the past year and a half. As a result, security preparation efforts are well-advanced and have been tested through several formal exercises amongst the security partners. Implementation of the integrated security plan by the respective police agencies will soon take place as the Summits are unfolding shortly.
I understand that, after further assessment and extensive discussions amongst officials and security partners, it was agreed that a separate FMIOA arrangements is not required for the Summits as it would not grant further authorities to local police of jurisdiction. In addition, it was also concluded that the current suite of powers and authorities that peace officers possess at common law or by virtue of any other federal or provincial Act or regulation were sufficient for the G8 and G20 Summits. Furthermore, the premise of the FMIOA provision, upon which a separate arrangement could be based, is to facilitate consultation and cooperation between the Royal Canadian Mounted Police and provincial and municipal police forces and such consultation and cooperation is already well advanced.
To date, the support and efforts demonstrated by provincial and municipal security partners have been outstanding. The Government of Canada looks forward to continued excellent cooperation with Ontario in securing and ensuring the success of the upcoming Summit."
4) Doctrine of Paramountcy and Interjurisdictional Immunity
(a) Paramountcy doctrine
The Constitution Act, 1867, divides legislative powers between the federal (s.91) and provincial (s.92) governments. This division of powers can be imprecise, resulting in overlapping federal and provincial legislation.
Assuming that both of the overlapping laws are within the competence of their respective legislators, when the overlapping laws are inconsistent determining which law applies is often resolved with the doctrine of "federal paramountcy". This doctrine states that the federal law will prevailFootnote 7.
Most recently the Supreme Court of Canada in Canada (Attorney General) v. PHS Community Services SocietyFootnote 8 stated:
 In summary, the doctrine of interjurisdictional immunity is narrow. Its premise of fixed watertight cores is in tension with the evolution of Canadian constitutional interpretation towards the more flexible concepts of double aspect and cooperative federalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones.
 In the case of a conflict between a federal law and a provincial law, the doctrine of paramountcy means that the federal law prevails to the extent of the inconsistency: Canadian Western Bank,at para. 69. ... The doctrine of federal paramountcy applies when there is operational conflict between a federal and provincial law, or when a provincial law would frustrate the purpose of a federal law.
Determining inconsistency between laws
The most obvious example of an inconsistency between laws is where both laws cannot be complied withFootnote 9. For example, if a provincial law allocated exclusive responsibility over a subject to one authority, and federal law allocated exclusive responsibility over the same subject, to a different authority, there would be an inconsistency. On the other hand, if one level of government legislates a standard, and the other government legislates a higher standard, meeting the higher standard also meets the lower standard, and the laws are not inconsistent.
A more subtle example of an inconsistency is where overlapping laws can both technically be complied with, but that such compliance would "frustrate the purpose" of the federal lawFootnote 10. In one caseFootnote 11, the federal government legislated that a person could be represented by a lawyer or a non-lawyer before a particular tribunal. The provincial legal legislation prohibited non-lawyers from representing a person before any tribunals. Both laws could be complied with by having a lawyer represent the party. The court found that while dual compliance was possible, some of the purposes of the federal Act were to make the tribunal more informal, accessible and speedy. Using only lawyers before the tribunal would defeat these purposes. The provincial law was therefore inconsistent with the federal law.
Provincial law is inoperative to the extent of the inconsistency
To resolve the inconsistency, federal paramountcy makes the provincial law inoperative. This means that the provincial law does not govern the topic that is the subject of overlapping laws. Non-compliance with the provincial law has no effect, whereas non-compliance with the federal law has its usual full effect.
It is important to note that provincial law is affected only insofar as it is inconsistent with the federal lawFootnote 12. This may mean the effect is quite narrow, such that a particular section of provincial law is inoperative for so long as the federal law is not repealed.
(b) Alternative solution: Interjurisdictional Immunity
The doctrine of interjurisdictional immunity means that one level of government cannot legislate in a way that impairs the "basic, minimum and unassailable content"Footnote 13 of a subject which s.91 allocates to the federal governmentFootnote 14, even when the legislation in general is constitutional.
While provincial governments have the constitutional power to legislate generally regarding subjects under s.92(13) (property and civil rights), that constitutional power cannot hinder federal constitutional powers. In the past this doctrine has meant that provincial laws requiring protective reassignment of pregnant workers did not apply to an interprovincial telephone companyFootnote 15, and that provincial labour laws have been inapplicable to postal workersFootnote 16.
This doctrine is discussed by the Supreme Court of Canada in PHS Community Services Society (released September 30, 2011)Footnote 17 and, described as having been narrowed, though not abolished, by recent jurisprudence, in favour of the "emergent practice of cooperative federalism, which increasingly features interlocking federal and provincial legislative schemes." The Chief Justice for a unanimous Court writes:
 The doctrine of interjurisdictional immunity is premised on the idea that there is a "basic, minimum and unassailable content" to the heads of powers in ss. 91 and 92 of the Constitution Act, 1867 that must be protected from impairment by the other level of government: Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail),  1 S.C.R. 749,at p. 839. In cases where interjurisdictional immunity is found to apply, the law enacted by the other level of government remains valid, but has no application with regard to the identified "core".
 It is not necessary to show that there is a conflict between the laws adopted by the two levels of government for interjurisdictional immunity to apply: Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39,  2 S.C.R. 536, at para. 52 ("COPA"). Indeed, it is not even necessary for the government benefiting from the immunity to be exercising its exclusive authority: Canadian Western Bank, at para. 34.
 Recent jurisprudence has tended to confine the doctrine of interjurisdictional immunity. In Canadian Western Bank, the majority stated that "although the doctrine of interjurisdictional immunity has a proper part to play in appropriate circumstances, we intend now to make it clear that the Court does not favour an intensive reliance on the doctrine, nor should we accept the invitation of the appellants to turn it into a doctrine of first recourse in a division of powers dispute" (para. 47). More recently, in COPA, the majority held that the doctrine "has not been removed from the federalism analysis", but rather remains "in a form constrained by principle and precedent" (para. 58).
 This caution reflects three related concerns. First, the doctrine of interjurisdictional immunity is in tension with the dominant approach that permits concurrent federal and provincial legislation with respect to a matter, provided the legislation is directed at a legitimate federal or provincial aspect, as the case may be. This model of federalism recognizes that in practice there is significant overlap between the federal and provincial areas of jurisdiction, and provides that both governments should be permitted to legislate for their own valid purposes in these areas of overlap.
 Second, the doctrine is in tension with the emergent practice of cooperative federalism, which increasingly features interlocking federal and provincial legislative schemes. In the spirit of cooperative federalism, courts "should avoid blocking the application of measures which are taken to be enacted in furtherance of the public interest": Canadian Western Bank, at para. 37. Where possible, courts should allow both levels of government to jointly regulate areas that fall within their jurisdiction: Canadian Western Bank, at para 37.
 Third, the doctrine of interjurisdictional immunity may overshoot the federal or provincial power in which it is grounded and create legislative "no go" zones where neither level of government regulates. Since it is not necessary for the government benefiting from the immunity to actually regulate in the field in question, extension of the doctrine of interjurisdictional immunity risks creating "legal vacuums": Canadian Western Bank,at para. 44.
 While the doctrine of interjurisdictional immunity has been narrowed, it has not been abolished. Predictability, important to the proper functioning of the division of powers, requires recognition of previously established exclusive cores of power: Canadian Western Bank,at paras. 23-24. Nor, in principle, is the doctrine confined to federal powers: Canadian Western Bank. However, in areas of overlapping jurisdiction, the modern trend is to strike a balance between the federal and provincial governments, through the application of pith and substance analysis and a restrained application of federal paramountcy. Therefore, before applying the doctrine of interjurisdictional immunity in a new area, courts should ask whether the constitutional issue can be resolved on some other basis.
The Commission seeks a legal opinion with respect to the following questions:
To what extent are RCMP members (including those sworn as Ontario Special Constables) authorized and/or required to exercise police powers within each of the controlled access zone, restricted access zone, interdiction zone and outside area? To what extent are RCMP members authorized and required to direct local police within those zones?
a) RCMP authority or requirement to act in different zones
RCMP authority and requirement to act at Toronto G20
The RCMP authority and requirement to act at Toronto G20 diagram is a pictorial depiction composed of concentric circles representing the RCMP responsibility to act within each of the Controlled Access Zone, Restricted Access Zone, Interdiction Zone and Outer Zone as identified in connection with the 2010 G20 Summit in Toronto. The innermost circle represents the Controlled Access Zone, while the next innermost circle represents the Restricted Access Zone. The depiction indicates that in both zones, the RCMP was authorized and required to act pursuant to subsection 10.1(1) of the Foreign Missions and International Organizations Act and subsection 6(1) of the Security Offences Act.
The two outermost concentric circles represent the Interdiction and Outer Zones respectively. The depiction indicates that in both zones, the RCMP was authorized to act pursuant to section 9 of the RCMP Act but, pursuant to subsection 4(1) of Ontario’s Police Services Act, was not required to do so.
- TPS retained their municipal policing responsibilities as the police force of jurisdiction.
- RCMP retained their authority and primary responsibility with respect to ensuring the security for the proper functioning of the G20 Summit and protection of IPPs. Therefore, if some threat to the security of the Summit or to IPPs had manifested in the IZ or OZ, the RCMP would equally be required to act in the IZ or OZ to address that threat, even though the threat was outside the RAZ and CAZ.
(i) Key Document Statements
C2 Document – Federal Responsibility and RCMP
The ISU-GIS 2010 Summits Command and Control (C2) Document is the 'capstone document' for command and control for the G20 Summit dated March 25, 2010, but finally signed as amended by all Integrated Security Unit (ISU) partner agencies on June 3, 2010.
The C22 Document outlines the role of the RCMP at the G20 Summit as follows:
"...the RCMP is responsible for overseeing security planning and operations as well as the coordination of operational security requirements with federal, provincial and municipal law enforcement agencies.
The RCMP, as the lead security agency, is mandated to provide protection to the visiting IPPs and security of the Sites. The RCMP will also provide support assistance to its policing partners. These services will be provided under the direction of the UCC Incident Commander. If a critical incident or terrorist activity occurs during the G8 or G20 Summit that would constitute a threat to the security of Canada or to an IPP, the UCC will ensure that immediate actions are taken to safeguard life and property.
In accordance with the Security Offences Act, the RCMP will be responsible for the operational resolution of the incident subject to the policy direction of the Government of Canada. The RCMP will also ensure, through the appropriate Government agencies/departments/services, that the National Counter Terrorism Plan is implemented.
The RCMP will ensure the democratic right of individuals to demonstrate peacefully while maintaining proper security. "
"As the Commanding Officer of the leading agency, the Royal Canadian Mounted Police (RCMP) Commission retains overall responsibility for the 2010 G8 and G20 Summits and is responsible to the Government of Canada for the security and operations of the Summits.
SCO Document – RCMP Authority
The Strategic Concept of Operations G20 Summit June 26-27, 2010 document (SCO Document), prepared by the RCMP as an internal strategic planning guide to facilitate more detailed planning of the key security functions, does not appear to have been the subject of any specific agreement with partner agencies and, as such, has no express bearing on the question of RCMP and TPS authority or requirement to act in the various zones.
However, as a matter of internal record in advance of the Summit, it provides:
"The RCMP is Canada's national police service, and the sole agency with federal policing jurisdiction. The RCMP derives its authority from the RCMP Act, and takes direction from the Minister of Public Safety. The RCMP is mandated to provide security and to ensure the safety of Canadian dignitaries, Internationally Protected Persons (IPPs), designated sites, and Major Events.
The RCMP has been tasked as the lead agency responsible for the security of the G8 Summit. The knowledge and practices relevant to safeguarding visiting heads of state and foreign diplomats resides with the RCMP's Protective Policing Branch. 'O' Division has the responsibility of delivering the operational requirements for the G8 Security."
And further that:
"The RCMP is the lead and supported agency for Security of the Summit. RCMP will work in close partnership with federal partners and police services of jurisdiction within the province."
"The RCMP is responsible for the security and movement of Internationally Protected Personnel (IPP)."
"The RCMP will establish Controlled Access Zones (CAZ) in relation to venues and as required. The RCMP will establish Controlled Access Zones (CAZ) in relation to venues and as required. The RCMP will direct the establishment of additional security zones to be policed by supporting security partners as required."
(ii) Where the RCMP were authorized to act
- RCMP officers are peace officers in every part of Canada (RCMP Act s.9).
- RCMP are authorized to exercise all common law and statutory powers of peace officers with respect to enforcing federal laws across CanadaFootnote 18, including all zones in Toronto during the G20.
- However, unless appointed as Special Constables in Ontario RCMP officers would not be authorized to enforce provincial laws in any zone because the RCMP is not employed in OntarioFootnote 19.
- Depending on the details of appointment as a special constable, RCMP officers could have been authorized to enforce provincial laws in any or all zones by virtue of appointment as special constables and the powers thereby conferred under s. 53(3) of the Police Services Act. We understand though that RCMP were only deployed as special constables during the pre-Summit period of June 20-23, 2010, and prior to the security perimeter coming into effect on June 25.
(iii) Where the RCMP were required to act
- The RCMP is not responsible for enforcing all laws across Canada because the provinces have the power to establish provincial and municipal police forces responsible for enforcing provincial laws and municipal by-laws (Constitution Act 1867, s.92(14)).
See also the a contrario implication from Royal Canadian Mounted Police Regulations sections 17(1)(a) and (b):
"17. (1) In addition to the duties prescribed by the Act, it is the duty of members who are peace officers to [...]
(b) maintain law and order in the Yukon Territory, the Northwest Territories and national parks and such other areas as the Minister may designate;
(c) maintain law and order in those provinces and municipalities with which the Minister has entered into an arrangement under section 20 of the Act and carry out such other duties as may be specified in those arrangements;"
- The RCMP had primary responsibility to ensure the security for the proper functioning of the Summit per FMIOA s.10.1(1)
"10.1 (1) The Royal Canadian Mounted Police has the primary responsibility to ensure the security for the proper functioning of any intergovernmental conference in which two or more states participate, that is attended by persons granted privileges and immunities under this Act and to which an order made or continued under this Act applies."
- The RCMP were also required (had primary responsibility) to protect IPPs per Security Offences Act s.6(1):
"6. (1) Members of the Royal Canadian Mounted Police who are peace officers have the primary responsibility to perform the duties that are assigned to peace officers in relation to any offence [where the victim is an IPP] referred to in section 2 or the apprehension of the commission of such an offence."
- The RCMP is also required to protect IPPs pursuant to the Royal Canadian Mounted Police Regulations section 17(1)(f)(i):
"17. (1) In addition to the duties prescribed by the Act, it is the duty of members who are peace officers to [...]
(f) protect, within Canada, whether or not there is an imminent threat to their security,
(i) any person who qualifies under the definition "internationally protected person" in section 2 of the Criminal Code,"...
- The strategic planning assumption was that controlling the RAZ and CAZ were necessary to ensure security for the proper functioning of summit and to protect IPPs.
- Having so identified the key geographical zones central to the RCMP's primary responsibility under the Security Offences Act and FMIOA, the RCMP were required to control and act in the CAZ and RAZFootnote 20.
- It bears emphasis that the requirement to act imposed by section 10.1 of the FMIOA, section 6 of the Security Offences Act and section 17(1)(f)(i) of the RCMP Regulations pertains to subject matter, rather than any arbitrary geographical limitation. Thus, if some threat to the security of the Summit or to IPPs had manifested in the IZ or OZ, the RCMP would equally be required to act in the IZ or OZ to address that threat, even though the threat was outside the RAZ and CAZ.
- Hypothetically, the RCMP's primary responsibility could require them to act somewhere far from the summit site. For example, if the RCMP knew that someone in another province was orchestrating an attack on the summit, the RCMP would be required to act against that person in the other province.
- To this extent, the scope of the RCMP's primary responsibility to act is geographically elastic — it depends on the RCMP's risk assessments and strategic judgment as to what appropriate measures, including establishing fenced zones, are reasonably necessary in the circumstances.
b) RCMP required or authorized to direct local police
RCMP authority and requirement to direct local police at Toronto G20
The RCMP authority and requirement to direct local police at Toronto G20 diagram is a pictorial depiction composed of concentric circles representing the RCMP’s authority within each of the Controlled Access Zone, Restricted Access Zone, Interdiction Zone and Outer Zone as identified in connection with the 2010 G20 Summit in Toronto. The innermost circle represents the Controlled Access Zone, while the next innermost circle represents the Restricted Access Zone. The depiction indicates that in both zones, the RCMP was authorized and required to direct local police only with their agreement pursuant to subsection 10.1(1) of the Foreign Missions and International Organizations Act, subsection 6(1) of the Security Offences Act, and the Command and Control Document.
The two outermost concentric circles represent the Interdiction and Outer Zones respectively. The depiction indicates that in both zones, the RCMP was not authorized to direct local police, pursuant to subsection 4(1) of Ontario's Police Services Act and the Command and Control Document.
(i) Key Document Statements
As a general proposition, while Canada's federal and provincial police forces have separate sources of authority and requirements to act which may overlap geographically or subject matter wise (eg. enforcement of Criminal Code), one police force does not have the power to direct another police force. Accordingly, inter-police work is a matter of cooperation and agreement.
- The police forces in question recognized the importance of cooperation, and created the RCMP-led ISU and approved the C2 Document which lays out the relative responsibilities.
- The police forces recognized the RCMP's lead responsibility in the CAZ and RAZFootnote 21, particularly via the C2 Document.
- Based on the C2 Document, it is apparent that the RCMP regarded itself as not only authorized but required to direct other police forces assigned to the RAZ and CAZ for purposes of G20 security or protection of IPPs. Likewise, the TPS as local police force partner agreed to the command authority established for the RCMP zones (CAZ and RAZ) and the TPS zones (IZ and OZ) and thereby agreed to follow RCMP directions in the RAZ and CAZ (subject to the limits of law, including the regulation-based codes of conduct).
- What is not clear is whether the FMIOA or Security Offences Act provisions assigning "primary responsibility" on the RCMP confers any statutory authority or requirement to direct other police forces who may have secondary responsibilities in the locality of a summit. Absent express statutory language and intra vires legislative competence, we do not believe so. This leaves only the general obligation of police forces to cooperate and the specific C2 Document intended to integrate the work of all key security partners as the source of RCMP authority and requirement to direct local police.
- As we question whether the C2 Document is legally enforceable by any signatory, the authority and requirements of the RCMP to direct local police in the CAZ and RAZ rests on a cooperative agreement only.
- Significantly, ss. 1.3 of the C2 Document expressly provides that each police service (provincial, regional, municipal) will retain their responsibilities as police force of jurisdiction.
(ii) RCMP's primary responsibility and required leadership role
- Protection of IPPs and securing international summits, because of international nature, is constitutionally federal jurisdiction (Security Offences Act s. 6, Royal Canadian Mounted Police Regulations s.17(1)(f)(i), and FMIOA s.10.1).
- FMIOA and Security Offences Act give the RCMP "primary responsibility" for protecting IPPs and ensuring security for the proper functioning of international summits.
- The addition of the word "primary" is significant, and requires the RCMP to play a leadership role with respect to their areas of "primary responsibility", which the RCMP did assumeFootnote 22.
- There has been no judicial consideration of either the FMIOA s.10.1 (introduced in 2001 amendments to this Act) or the Security Offences Act s.6 (introduced in 1984). This means there is no judicial assistance in interpreting "primary responsibility" and what that means for joint police operations.
- A survey of Hansard recording statements in the House of Commons as well as Minutes of the Standing Committee of Foreign Affairs and International Trade in October-November 2001 and February 2002 indicate the legislative view that codifying the RCMP's role for assuming primary responsibility simply clarified the lead (but not sole) responsibility of the RCMP for security at such international events but that consultation, co-operation and collaboration with local police would continue as in the past.
...primary responsibility of the RCMP does not suggest that the Royal Canadian Mounted Police will now be solely responsible for security at international events.
The amendments also accurately reflect the practical arrangements between the RCMP and the local police, either provincial, local or regional, in sharing responsibilities for security measures.
As in the past, the RCMP would continue to share responsibility with the police forces of local jurisdictions and would continue to consult and co-operate with each police force to determine who will be responsible for specific activities.Footnote 23
As in the past, the RCMP will continue to work in close partnership with provincial and municipal police forces in providing security for the events.Footnote 24
With reference to your concern here, primacy doesn't go to sole ownership of the problem. We recognize there's a requirement for partnership, because there are local police responsibilities.
Within the very inner circle would be the protection of the internationally protected person, for which the RCMP is responsible. That event, though, is going to be surrounded by a series of other events that occur, which can require, maybe, public unrest or mischief charges, assault charges—things that occur on the streets surrounding an event. Those in fact would be handled by the local police of primary jurisdiction; they will handle those particular events.
I've indicated it wouldn't change how that duty is actually currently performed, which is in collaboration with our partners.
But clearly, in other areas, we work in partnership because there are different activities that have to be played out by different forces. They have primary jurisdiction for something that occurs outside the perimeter around an eventFootnote 25
The RCMP takes the lead in providing security and close consultation and collaboration with municipal and provincial police at all levels.Footnote 26
The RCMP always had the final say in respect of protection of internationally protected people, IPP. At these sites, there are zones. The inner zone is the IPP and that is the primary responsibility for which the RCMP has the lead. The other areas or zones that extend out from the site would reflect dialogue with the other police jurisdictions.Footnote 27
- In summary, Parliament appears to have intended the use of the word "primary"Footnote 28 to create lead responsibiliity in the RCMP but "primary responsibility" contemplates there being other entities with "secondary responsibility" in ensuring the security for the proper functioning of the summit, and in protecting IPPs. These entities with a lesser degree of responsibility were intended to be other police forces, including the police force of local jurisdiction.
- Conceivably an international summit could be held on federal lands at an airport where the IPPs and delegates stayed at airport hotels and met at an airport conference centre, leaving the RCMP with complete federal jurisdiction to undertake security. Likewise, in a province where the RCMP are under contract to provide provincial and municipal policing, the RCMP could have full control of policing at an event site. However, this was not the case for the G20, and, invariably, such summits will involve cooperation with the police force of local jurisdiction and others.
(iii) Police forces have an obligation to cooperate
There is some authority for the principle that police forces have a professional obligation to cooperate.
- The police have an obligation to take proper and reasonable steps in the prevention of harm to IPPs in an international visit, per R v Knowlton,  S.C.R. 443 at 447:
According to the principles which, for the preservation of peace and prevention of crime, underlie the provisions of s. 30, amongst others, of the Criminal Code, these official authorities were not only entitled but in duty bound, as peace officers, to prevent a renewal of a like criminal assault on the person of Premier Kosygin during his official visit in Canada. In this respect, they had a specific and binding obligation to take proper and reasonable steps. The restriction of the right of free access of the public to public streets, at the strategic point mentioned above, was one of the steps—not an unusual one—which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid. In my opinion, such conduct of the police was clearly falling within the general scope of the duties imposed upon them.
- Cooperation amongst the various police forces in the area is likely such a proper and reasonable step.
- Moreover, Ontario's municipal police forces, such as TPS, are required to be "adequate and effective", including in offering Public Order maintenance (Ontario Police Services Act, s.4).
- Effective police forces will cooperate rather than getting in each other's way or acting at cross purposes.
- The concept of a duty to cooperate does not have express definition under statutory or common law and so any evaluation of the nature and extent of such an obligation, by a local police force in support of a federal police force having primary responsibility, would depend on what was reasonable in the circumstances. Factors, in the context of a request by the RCMP to the TPS to cooperate in devising and implementing a security plan for the G20 Summit, we expect would include: the overall policing needs for the Summit, the relative resource capacity of the RCMP and TPS, identified gaps in the authority or responsibility of the RCMP to meet the overall security plan needs, and competing core demands on TPS. The extent of the TPS duty to cooperate would not mean, we think, its dropping any other core local policing responsibilities to redirect to Summit policing and might well be conditional upon additional funds being provided federally or provincially to recompense the TPS for mobilizing additional police services for the Summit.
- We emphasize that we do not regard such a duty to cooperate to mean a "duty to follow" the directions of a separate police force - in our view, absent valid and express statutory provisions, a duty to direct or to follow directions as between separate police forces in Canada must be premised on voluntary agreements or undertakings. We note in passing that there was debate in Parliament in 1984 leading to the enactment of the Security Offences Act and creation of CSIS, wherein a motion was brought to amend Bill C-9 to include a positive "duty to consult". The motion which failed would have expressly obliged the RCMP to consult with provincial and municipal police forces in exercising the RCMP's primary responsibility to investigate national security offences.Footnote 29
- There is no statutory bar to police agencies entering into agreements such as memoranda of understanding or the C2 Document used in this circumstance to better define and coordinate the mandates, roles and responsibilities for all participating police agencies.
2) To what extent are local police authorized and/or required to exercise police powers within each of the controlled access zone, restricted access zone, interdiction zone and outside area? To what extent are local police authorized and/or required to direct RCMP members (including those sworn as Ontario peace officers) within those zones?
a) Local police forces being authorized or required to act in which zones
TPS authority and requirement to act at Toronto G20
The TPS authority and requirement to act at Toronto G20 diagram is a pictorial depiction composed of concentric circles representing the policing authority within each of the Controlled Access Zone, Restricted Access Zone, Interdiction Zone and Outer Zone as identified in connection with the 2010 G20 Summit in Toronto. The innermost circle represents the Controlled Access Zone, while the next innermost circle represents the Restricted Access Zone. The depiction indicates that in both zones, the TPS was authorized and required to act pursuant to subsection 4(1) of Ontario’s Police Services Act and the Command and Control Document. However, the diagram specifies that the TPS was not primarily responsible for those zones.
The two outermost concentric circles represent the Interdiction and Outer Zones respectively. The depiction indicates that in both zones, the TPS was authorized and required to act pursuant to subsection 4(1) of Ontario’s Police Services Act.
- TPS a provincial partner in RCMP-led Toronto Area Command Centre (TACC) addressing federal level responsibility. TPS led Major Incident Command Centre (MICC) addressing city level responsibility. TPS retained its responsibility for non-G20 policing in the RAZ and CAZ because TPS remained the police force of local jurisdiction.
- Subject to RCMP primary responsibility with respect to ensuring the security for the proper functioning of G20 Summit and protecting IPPs.
(i) Key Document Statements
C2 Document – Provincial Responsibility and TPS
The C2 Document outlines the role of the TPS at the G20 Summit as follows:
"The Toronto Police Service (TPS) is the police force of jurisdiction in Toronto. TPS has the responsibility to fulfill its mandated obligations under the 'Police Services Act' of Ontario. Through the ISU, TPS will support the RCMP in its federally legislated mandate. During the G20, TPS will assist in protecting the Internationally Protected Persons (IPP's) and VIP's, as well as ensuring the integrity of the Interdiction Zones (IZ) or outside perimeters of all identified G20 Toronto sites and hotels. TPS will ensure the democratic right of individuals to demonstrate peacefully while maintaining proper security. Additional TPS responsibilities include: crime management, traffic management, public order maintenance, business continuity, prisoner processing and community relations."
"The MICC is the central point of command, control, communication and information for the Toronto Police Service (TPS). The MICC Incident Commander, will have a full perspective of all resources under the Command of the TPS, and tactical control of those resources, in its function of ensuring the integrity of the Interdiction Zones beyond the Restricted Access Zones under the protection of the RCMP. Additionally the MICC will be responsible for the continuity of policing services throughout the City of Toronto and liaising with the City's Emergency Operations Centre (EOC).
SCO Document – TPS Responsibility
As a matter of internal RCMP record the SCO Document acknowledges that:
"TPS is the police service of jurisdiction within the City of Toronto. Through an Integrated Security Unit, TPS will support the RCMP in its federally legislated mandate. TPS has the responsibility to fulfill its mandated obligations under the Police Services Act of Ontario, which include:
- Law enforcement
- Public Order Maintenance
- Assistance to Victims of Crime
- Emergency Response, and
- Crime Prevention"
(ii) TPS was required to act in all zones regarding policing unrelated to the G20, and required by agreement to act in the OZ and IZ regarding all G20 related policing.
- TPS is authorized and required to act across the city because they are responsible for policing Toronto (Ontario Police Services Act, s.4).
- All zones (RAZ, CAZ, IZ, OZ) are parts of Toronto. TPS remained solely responsible for policing all zones regarding non-G20 matters.
- Under the C2 Document, the TPS were also required to act in the IZ and OZ regarding G20 matters. "TPS site commanders will be in tactical control of foot, bicycle, and mobile assets in the IZ, the Path (which runs under both the IZ and OZ) and the OZ, being supported by Public Order Sections, and under the operational direction of the MICC."Footnote 30
- While the TPS remained responsible for policing unrelated to the G20 in the RAZ and CAZ, TPS was required under the C2 Document to follow RCMP directions in those two zones when doing G20 related policing.
b) To what extent are local police authorized and/or required to direct RCMP members within those zones?
TPS authority and requirement to direct RCMP at Toronto G20
The TPS authority and requirement to direct RCMP at Toronto G20 diagram is a pictorial depiction composed of concentric circles representing the TPS’ authority within each of the Controlled Access Zone, Restricted Access Zone, Interdiction Zone and Outer Zone as identified in connection with the 2010 G20 Summit in Toronto. The innermost circle represents the Controlled Access Zone, while the next innermost circle represents the Restricted Access Zone. The depiction indicates that in both zones, the TPS was not authorized to direct the RCMP due the primary responsibility of the latter pursuant to the Foreign Missions and International Organizations Act, the Security Offences Act, and the Command and Control Document.
The two outermost concentric circles represent the Interdiction and Outer Zones respectively. The depiction indicates that in both zones, the TPS was authorized and required to direct the RCMP only with their agreement, pursuant to the Command and Control Document.
(i) Key Document Statements
- Section 4(1) of the Police Services Act gives TPS responsibility for all policing throughout Toronto. Control of the IZ and OZ was not required to ensure the security of the Summit, therefore the FMIOA does not give the RCMP any general requirement to act in the IZ and OZ. TPS remained responsible for all policing in those two zones.
- The C2 document confirms that TPS would control the IZ and OZ, because these were designated as "TPS Sites" and the TPS-led MICC was given jurisdictional command and tactical control of resources in its function of ensuring the integrity of the IZ and OZ.Footnote 31 By this agreement, all police forces in the IZ and OZ were required to follow the direction of the TPS (subject to the limits of law, including the regulation-based codes of conduct).
- We note that the C2 Document does contemplate that the RCMP support assistance to its police partners would be "provided under the direction of the UCC Incident Commander" but once directed to the IZ and OZ zones, command and control appears to devolve to MICC and the TPS.
- The RCMP's requirement to act, which derived from the FMIOA and the Security Offences Act, is subject matter specific. Therefore a situation could exist where the RCMP was required to be involved in the IZ, OZ or beyond, so as to protect the IPPs or ensure the security for the proper functioning of the summit (e.g. identified aircraft threats or cyber attack). Such a situation would give the RCMP primary responsibility to act wherever the threat arose and would change the allocated responsibilities.
(ii) By agreement, TPS was required to direct RCMP and the RCMP was required to follow directions in IZ and OZ.
- Based on the duty as expressed in R v Knowlton to take reasonable measures in fulfilling their duty, police forces who act in the same theatre must cooperate. The C2 Document was consistent with this duty, the express goals of this agreement being to ensure a coordinated effort of forces and resources with a common organizational structure, standardized terminology, a scalable response, integrated timely communications, and a consolidated plan of action, with command and control delivered at the strategic, operational, and tactical levels. The use of such agreements is an appropriate means of ensuring integration of police force capabilities and synchronization of security operations.
- Within each of the controlled access zone, restricted access zone, interdiction zone and outside area, and for both RCMP members (including those sworn as Ontario peace officers) and municipal police officers, does a particular police agency's policy (regarding acceptable standards of conduct) become paramount? Do police officers continue to be bound by the policies of their respective agencies?
(a) Members continue to be bound by their own force's codes of conduct and policies
- Each force's regulatory codes of conduct remained binding on their respective members (including RCMP sworn as Ontario Special Constables) (RCMP: Royal Canadian Mounted Police Regulations 1988, SOR/88-361, ss.37-58.7, Provincial/municipal police: O Reg 268/10, in the schedule).
- This is because there is no authority for something like the agreement in the C2 Document or a duty to cooperate, overriding binding regulations which have the force of law.Footnote 32
- The RCMP and TPS signed a MOU dated June 14, 2010 to document the arrangements regarding deployment of RCMP police officers to TPS as Ontario Special Constables. They were made available to support TPS in carrying out traffic central duties and respond to public order incidents prior to the G20 Summit. This MOU was time limited to the dates June 20-23, 2010. Notably at section 5.1 under Terms of Deployment it provided that:
"Deployed personnel shall be subject to the Ontario Police Services Act and TPS policy and operational guidelines, wherever they do not conflict with legislation and procedures governing the deployed personnel...Public complaints and disciplinary matters involving deployed personnel will be processed in the usual course pursuant to the legislation applicable to them."Footnote 33
- There was no similar use of RCMP as Special Constables during the June 26-27 Summit period. If indeed the MOU used for June 20-23 was capable of subordinating RCMP officers to TPS policy and operational guidelines during this temporary appointment, no such subordination of any RCMP members to TPS policy and operational guidelines was agreed to in relation to the G20 Summit itself.
- As a practical matter it may be difficult to clearly distinguish between the code of conduct and terms of employment governing the RCMP member and the applicable policy or operational procedures called for on the ground. To expect RCMP police officers deployed as POUs to take common briefing instructions together with other TPS police officers from TPS command and then conduct the very same police operations shoulder-to-shoulder in the field in support of TPS responsibilities, but somehow identify conflicting procedures and conduct themselves differently, may not be a realistic expectation. This is an issue deserving more consultation and clarity to ensure such expectations are workable.
- Internal police documents such as policy documents or operational manuals must be distinguished from legal instruments like statutes and regulationsFootnote 34. These internal documents have little legal significance. Courts have accorded little weight to such when judging if an officer has acted properlyFootnote 35. Moreover, these documents cannot affect, interpret or describe the legal authority a peace officer hasFootnote 36.
- We find no legal basis, including anything in the C2 Document or otherwise, to conclude that one force's policies and operational guidelines would override the other force's policies/procedures in different zones. Therefore, in our view, each force remained bound and guided by their respective policies and operational guidelines irrespective of which zone they were policing in. This means that even those RCMP officers operating as POUs in the IZ or OZ under command and control of the TPS would remain bound by RCMP policy and operational guidelines in the absence of express agreement to the contrary.
4) What impact, if any, does the FMIOA or other relevant federal legislation have within the area designated a public work pursuant to the PWPA?
a) The G20 area was legally identified as a public work
The G20 area was properly designed as a public work at the time of the G20 summit. Regulation 233/10, made under the Public Works Protection Act (PWPA), which designated the area as a public work, was effective at the time of the G20. Pursuant to section 23(2) of Ontario's Legislation ActFootnote 37, the effective date of a regulation is decided in the following manner:
(2) Unless otherwise provided in a regulation or in the Act under which the regulation is made, a regulation is not effective against a person before the earliest of the following times:
- When the person has actual notice of it.
- The last instant of the day on which it is published on the e-Laws website.
- The last instant of the day on which it is published in the print version of The Ontario Gazette.
Although the regulation was only published in the Gazette on July 3, 2010Footnote 38, prior publication on the e-Laws website on June 16, 2010Footnote 39 made this regulation effective during the G20 Summit, on June 26 and 27. This means that peace officers had the additional powers conferred by the PWPA with respect to the area set out in regulation 233/10.
b) PWPA does not impact on FMIOA or other relevant federal legislation
Even though the G20 area was validly identified as a public work at the time of the G20 Summit, this did not impact the FMIOA or other federal legislation providing authority and responsibility to the RCMP in relation to their police services during the G20 Summit.
The PWPA was enacted in 1939. It was a wartime measure in response to concerns of sabotage of Ontario's hydroelectric and other facilities.Footnote 40 Today the PWPA is seldom used. The main application of the PWPA is with regard to ensuring courthouse security via searchesFootnote 41. This use of the PWPA has been upheld as constitutional in relation to a s. 8 Charter challenge of a warrantless search of person entering an Ontario courthouseFootnote 42.
The passing of O Reg 233/10, which designated the G20 area as a public work began with concerns from the City of Toronto Solicitor's office that police may not have legal authority to take the measures required to ensure the integrity of the Interdiction ZoneFootnote 43. The Government of Canada and the RCMP were of the opinion that they had sufficient powers under the common law and the Criminal CodeFootnote 44. Nonetheless the Chief of the TPS requested the Lieutenant Governor in Council to pass a regulation under the PWPA designating the G20 area as a public workFootnote 45. This request was granted in the form of O Reg 233/10.
The most important part of the PWPA is section 3, which reads:
"3. A guard or peace officer,
- (a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and address, to identify himself or herself and to state the purpose for which he or she desires to enter the public work, in writing or otherwise;
- (b) may search, without warrant, any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger; and
- (c) may refuse permission to any person to enter a public work and use such force as is necessary to prevent any such person from so entering." [Emphasis added]
The main effect of the PWPA is to confer on peace officers additional powers to stop, search and refuse a person entrance to a public work.
The term "guard" is defined in the Act but not "peace officer". Per s.9 of the RCMP Act, RCMP officers are peace officers in every part of Canada. The PWPA does not expressly limit these additional powers to provincial peace officers although constitutionally this may well be the intra vires limit. If indeed and to the extent this provincial statute is capable of affecting federal peace officers, the PWPAwould do nothing more than confer extra powers on the RCMP to stop, search and refuse a person entrance into a public work.
The FMIOA allocates primary responsibility to the RCMP for the security relating to the proper functioning of the Summit. There is no conflict or interaction between the PWPA and relevant federal legislation, and therefore there is no need to have recourse to doctrines of paramountcy (or interjurisdictional immunity) to resolve an operating inconsistency. Nothing in the PWPA weakens or inhibits the enforcement of federal legislation by the RCMP much less creates any actual conflict.
Issue 1 – During the G20 Summit RCMP members had authority to exercise police powers in relation to federal level responsibilities and federal offences within each of the CAZ, RAZ, IZ and OZ. However, RCMP members were only required to exercise police powers within the CAZ and RAZ (as contemplated by the C2 Document) and, in the event of security threats to the G20 Summits or IPPs arising outside these two zones then to the extent deemed necessary in the IZ or OZ. Operationally, by reason of the RCMP's primary responsibility with respect to ensuring the security for the proper functioning of the G20 Summit and protecting IPPs the RCMP were in charge of command of G20 related policing in the CAZ and RAZ. As contemplated in the C2 Document, TPS forces made available in these zones for G20 policing agreed to take direction from the RCMP-led Toronto Area Command Centre (TACC).
Those RCMP members in public order units who were deployed to help support TPS in delivery of police services (principally in the IZ), even though operating under the command and control of the TPS, remained RCMP and were only "required to act" in relation to enforcing federal legislation, as they were not sworn as Ontario Special Constables.
Issue 2 – During the G20 Summit, the TPS retained their full authority and responsibilities to exercise police powers for local policing. However, in relation to policing within the CAZ and RAZ the RCMP-led TACC directed the TPS with respect to G20 security and protecting IPPs, jurisdictional matters for which the RCMP were primarily responsible under federal legislation. This command structure was recognized in the C2 Document. Outside these two zones, the TPS-led Major Incident Command Centre (MICC) and the TPS were in charge, unless and to the extent that the RCMP identified security threats to the G20 or IPPs falling within their federal mandate.
The RCMP deployed public order units in the IZ to assist the TPS discharge TPS responsibilities in this zone pursuant to the C2 Document. These public order units were subject to TPS command and control.
Issue 3 – The RCMP and TPS each retained their respective regulatory codes of conduct and policies and operational guidelines. The fact that some RCMP members assisted the TPS in the IZ as public order units did not subordinate RCMP codes or RCMP policies and operational guidelines to those of the TPS and vice versa for the TPS when policing in the CAZ and RAZ.
Issue 4 – The enactment of a special regulation under the PWPA to expand police powers during the G20 Summit did not conflict with or derogate from the federal legislation governing the RCMP mandate.
Eugene Meehan, Q.C.
Glossary of Abbreviations
|APEC||Asia-Pacific Economic Cooperation 1997 Summit|
|C2 Document||Command and Control Document|
|CAZ||Controlled Access Zone|
|CCLA||Canadian Civil Liberties Association|
|CPC||Commission for Public Complaints Against the Royal Canadian Mounted Police|
|EOC||Toronto's Emergency Operations Centre|
|FMIOA||Foreign Missions and International Organizations Act|
|IPP||Internationally Protected Person|
|ISU||Integrated Security Unit|
|MICC||Major Incident Command Centre|
|MOU||Memorandum of Understanding|
|OPP||Ontario Provincial Police|
|PSA||Ontario's Police Services Act|
|PWPA||Public Works Protection Act|
|RAZ||Restricted Access Zone|
|RCMP||Royal Canadian Mounted Police|
|SCO Document||Strategic Concept of Operations Document|
|TACC||Toronto Area Command Centre|
|TPS||Toronto Police Service|
|VIP||Very important person|
Appendix E: G8/G20 Integrated Security Unit
The following information was taken from the G8-G20 Integrated Security Unit (ISU) website.
The RCMP has created the Summit Integrated Security Unit, which is comprised of the RCMP, the [Ontario Provincial Police] (in the G8 context), the Canadian Forces, Toronto Police Service, Peel Regional Police and other law enforcement and security experts who will work collaboratively to ensure the safety of the International Protected Persons (IPPs), VIPs and the community. To every extent possible, the Summit Integrated Security Unit will work to minimize to the fullest extent possible, the potential of impact of police security operations as well as impact on the city of Toronto and surrounding areas.
As the Toronto Police Service (TPS) is the police force of jurisdiction in Toronto, they will assist in protecting the Internationally Protected Persons (IPP) and VIPs as well as, secure the outside perimeter of the G20 Controlled Access Zones for the guests of the Canadian Government and the community. Other law enforcement partners are also part of the security measures for the G20 Summit. In addition, it will be the responsibility of the TPS to deal with any protests outside the security perimeter established by the RCMP or disruptions such as those involving road closures not under the highway jurisdiction of OPP.
G8-G20 2010-ISU is responsible for all aspects of security planning including but not limited to:
- aviation security
- tactical emergency response
- working with RCMP units responsible for Internationally Protected Person (IPP), VIP security
- aviation management over G20 site
- communications security
- sites and venues security
- community relations
- traffic control
For those not familiar with the G20, in 1998 RCMP and its partners successfully carried out G7 protective operations in this same location – in the same year as we secured the Calgary Winter Olympic Games. As there are many obvious similarities, it serves as a relevant example for 2010.
Mandate and responsibilities of the Royal Canadian Mounted Police:
- General coordination of Security
- Close personal protection of Heads of State and VIPS
- IPP Motorcades and bodyguards
- Site security (event site area perimeter, airspace)
- Access Control
- Federal Liaison
- Operational support
- Border integrity
- Liaison with federal departments
- Intelligence coordination
- Communications Coordination
- Unified command with the TPS and CF et al
Anticipated mandate and responsibility of the Toronto Police:
- Jurisdictional duties in Toronto including participation in motorcades.
- Traffic safety on impacted road networks
- Crowd management
- Crime management
- To secure the outer perimeter of the MTCC Controlled Access Zone and all other Toronto CAZ areas for guests of the Canadian government at the Summit
- Assistance to the RCMP upon request
- Providing specialized services such as:
- Explosive Disposal Unit
- Canine Unit
- Underwater Search and Rescue
- Marine patrol
- Obstruction Removal Team
- Chemical, Biological, Radiological, Nuclear and Explosives Team
- Law enforcement through the Public Order Unit
- Emergency Response Team
- Joint intelligence coordination
- Unified command participation with the RCMP
- Liaison to municipal government
Peel Regional Police:
- Jurisdictional duties in PEEL Region including security coordination on the tarmac and controlled areas of Pearson Airport.
Anticipated Mandate and responsibility of Ontario Provincial Police:
- Policing services pursuant to the Police Services Act of Ontario
- Traffic safety on impacted highway networks
- Assistance to the RCMP upon request
- To provide policing services in aid of other police forces in Ontario as may be required by the Operational Commander of the Integrated Security Unit.
Appendix F: Incident Command System
The Incident Command System (ICS) is a process developed in the United States. According to the websiteFootnote 1 of the United States National Response Team, the ICS is:
... a standardized on-scene incident management concept designed specifically to allow responders to adopt an integrated organizational structure equal to the complexity and demands of any single incident or multiple incidents without being hindered by jurisdictional boundaries.
In the early 1970s, ICS was developed to manage rapidly moving wildfires and to address the following problems:
- Too many people reporting to one supervisor;
- Different emergency response organizational structures;
- Lack of reliable incident information;
- Inadequate and incompatible communications;
- Lack of structure for coordinated planning among agencies;
- Unclear lines of authority;
- Terminology differences among agencies; and
- Unclear or unspecified incident objectives.
The ICS is considered by the RCMP as well as many other police services to be a workable set of protocols for the management of major incidents or events, and it was upon the ICS model that the RCMP and its policing partners went forward to plan for the security of the G8/G20 Summits.
Incident Management System
The RCMP initiated an Incident Management System (IMS) consisting of three incident management levels, which were horizontally and vertically integrated.
- At the tactical level, the system addressed support to local police of jurisdiction and first response to certain emergencies.
- At the operational level, the system addressed support to the tactical level in terms of facilities, personnel, equipment and process, and contemplated integration with partners and provincial Emergency Operations Centres. The operational level also contemplated coordination of responses and operational-level first response within a divisional scope of responsibility.
- Finally, at the strategic level, the system addressed support to the operational level and major events, national and international, in terms of facilities, personnel, equipment and process. The system also envisaged coordination of responses between regions and divisions, and first response to emergencies within the purview of the RCMP's national headquarters.