Police Investigating Police – Media Statement

The issue:

Little to nothing in the way of in-depth research and analysis has been done to date on the subject of police investigating police. Most debate goes only so far as the police should not investigate themselves. Or conversely, police are the only ones that have the expertise to undertake such investigations.

The level of public debate and formal research on this issue has largely failed to move beyond these declaratory statements. The research and analysis presented in this CPC report is intended to be a foundation piece upon which a serious, informed discussion on the matter of police investigating police can occur.

We need look no further than the Kingsclear and Income Trust investigations and the handling of the cases of Mr. Ian Bush, Mr. St. Arnaud or most recently Mr. Dziekanski to understand why the public's call for changes to the current practice of the RCMP investigating itself is growing more intense.

These concerns are not new. Other jurisdictions domestically and internationally have heard these expressions of concern and have taken firm action. Within Canada, independent criminal investigative bodies at the provincial level have been put in place like Alberta's ASIRT and Ontario's SIU.

But there is no coherent, consistent national RCMP approach to the investigation of serious injury, sexual assault or death. And given the unique role the RCMP plays as Canada's national police force with presence in all provinces and territories, this is a serious concern.

In order to address the growing gap between public expressions of concern and RCMP practice, I called a public interest investigation in November 2007 to take a comprehensive look at how the RCMP handles criminal investigations into its own members in cases involving serious injury, sexual assault and death. We reviewed 28 member investigations that took place between April 1st 2002 and March 31, 2007 to assess how appropriately these investigations were undertaken.

Overall, in the public interest, we sought to answer the following question:

Q: Can the current process of the RCMP investigating itself legitimately engender confidence in the transparency and integrity of the criminal investigation and its outcome?

A: Based on the results of our research and analysis, the informed CPC answer is that it cannot.

The findings:

Let me explain what led us to this conclusion by providing you with some key examples of what we found in our assessment of the RCMP's handling of member investigations.

• 1) There is currently no national, centralized coordination of member investigations. This means that:
  • No member of the RCMP, including the RCMP Commissioner, can tell you how many criminal investigations have been undertaken into its own members. There exists no national data collection on this.
  • More serious is that no one can tell you how many members have been investigated for serious injury, sexual assault or death.
  • Nor can they identify how many charges have been laid against their members nor what the outcome was in these cases.

    Without tracking its member investigations, the RCMP has no understanding of what the scope of the problem actually is. And without this knowledge, they can not begin to address it.

• 2) Second, we found there were no national standards, policies or procedures (nor is there any legislation) to guide how an RCMP investigation into one of its own members should be handled procedurally.
  • Discretion remains entirely at the RCMP provincial level which means the handling of member investigations varies widely across the country.
• 3) Also of real concern is the fact that the RCMP Investigation Guidelines specifically tell members when undertaking a criminal investigations into another member: to (and I quote) "take the same action as you would for any other person".
  • We disagree strongly with this principle and believe that criminal investigations into RCMP members should not be treated the same as any other investigation. Police are held to a higher standard requiring a comparable investigative threshold.

Other than a general reference in the RCMP Act and the Commissioner's Standing Orders which states that "A member shall not investigate a complaint where that member may be in a conflict of interest situation", nowhere in policy or legislation is "conflict of interest" defined. So we developed standard criteria based on common sense as well as common practices followed by other police forces and criminal investigative bodies in Canada and abroad.

• 4) We looked at the 28 cases against our five key criteria to assess how appropriately the RCMP handled each investigation. First the good news...
  • In relation to conduct, the CPC found that investigators charged with the task of investigating another member acted professionally and free from bias in 100% of the cases.
  • The CPC found that members complied with policy in 93% of the cases with only two minor policy violations found. It is important to point out here that this criteria only sought to assess if members followed the policy in place at the time of each investigation historically and did not assess the adequacy of these dated policies.
  • The CPC further found that the timeliness of the investigations was overall appropriate 82% of the time with investigations being completed overall in a timely manner.

As you can see, we found very little issue with individual member actions in regard to the handling of the 28 member investigations. And this is where we need to separate individual member behaviour from management structure.

We want the RCMP to recognize that the structural and procedural processes (or lack thereof) needlessly place members squarely at risk for a potential conflict of interest. Let me explain. The final two criteria that we assessed the 28 cases against include line management and level of response which looked at management structure, reporting relationships, appropriateness of the RCMP response relative to the gravity of the incident and the qualifications of the investigative team.

It is our assessment of the management structures where we start to see real problems. For both the line management and level of response criteria, we found the RCMP investigations were handled either partially or entirely inappropriately in 68% of the cases.

To guard against the potential for conflict of interest and intimidation, the CPC criteria recommends that:

• There should be sufficient personal and professional distance between the subject member and the primary investigator.
• The investigative team should include a primary investigator plus another investigator (at a minimum); and
• The primary investigator should be at least one rank higher than the subject member.

What we found in our review of the 28 cases was that:

• 25% of primary investigators identified themselves as personally knowing the subject member;
• in 60% of the cases (that's 17 of the 28 cases reviewed), a lone investigator was assigned the investigation;
• Interviews with subject members and witness officers were therefore conducted by a lone investigator in 60% of the cases; and
• in 32% of the cases, the primary investigator was of the same or lower rank as the subject member.

While our report findings are far more comprehensive – and I am happy to take any questions about that later – I did want to give you a sense of some of our concerns.

What we recommend:

From this thorough analysis of 28 RCMP cases, we were able to develop a baseline understanding of where the key issues lay, which helped to inform the development of a recommended model that could help engender confidence in the transparency and integrity of criminal investigations into RCMP members and the outcomes.

This model calls for two things:

1. Legislative enhancements (which is solely the government's prerogative); and
2. Steps the RCMP can take now - which would be a substantive gesture to underline their recognition that there is, in fact, a public concern and an institutional commitment to address it.

Our research, reveals that there are generally three ways police can be investigated. Think of it as a continuum. At one end is the dependent model where police investigate themselves without civilian involvement. At the other end is the independent model where criminal investigations are undertaken entirely by civilians with police removed from the process. In the middle lies the interdependent model where civilian involvement is introduced and there is some degree of police and civilian collaboration in the criminal investigative process. Details of this model are in your materials but key features range from: civilian observation, supervision, management and direction of a criminal investigation to assuming control over a police investigation or the ability to refer an investigation.

The CPC recommends that the RCMP should move from its current dependent model (which allows the RCMP to continue to investigate itself with the discretionary ability to refer investigations to external police forces if it deems it appropriate to do so with no mandatory requirements) towards an interdependent one. This model underlines the importance of police in the process but introduces enhanced civilian engagement in the process. Let me be clear here. We are not saying that the RCMP should never investigate itself. But we are saying that in certain circumstances they should not.

It is important that the RCMP take action on key recommendations that can be implemented immediately. These steps can produce real and meaningful results. We call upon the RCMP to:

• Create the position of National Registrar to manage, track, train, promote and advise on member investigations to ensure centralized coordination and guidance on all member investigations.
• Develop clear national standards in policy that set out that as the seriousness of the offence alleged against a member rises, the discretion for the RCMP to respond as it deems appropriate at the Division level (as is currently the case) must be removed and mandatory requirements inserted in its place. Specifically, we recommend that:
  • All member investigations involving death should be referred to an external police service or a provincial criminal investigative body where one is in place.
  • This referral process should be formalized through the development of formalized MOUs for every RCMP Division which follows a national template. This would ensure standard procedures are developed for the referral of member investigations to external police forces or provincial investigative bodies.
  • There should be no RCMP involvement in investigations involving death.
  • The CPC Observer (which is a program currently in place in BC and Yukon) should be embedded to ensure transparency from a civilian perspective.
  • For all member investigations involving serious injury and sexual assault, it is recommended that the CPC and the RCMP National Registrar jointly determine an appropriate response which could include a referral to an external police service or provincial investigative body (where in place) or to deploy an RCMP HQ Mobile Critical Incident member investigation team. Like in all criminal investigations involving death, the CPC Observer should also be embedded in all criminal investigations involving serious injury or sexual assault.
• And finally, where the RCMP is charged with investigating its own members for lesser offences, an Integrated Manual for members should be put in place with clear guidelines for the process and structure we recommend to ensure that members are not placed in positions of real or perceived conflict of interest.

Conclusion:

The RCMP is a unique institution that has a leadership role to play within Canada and within the Canadian policing community. Leadership means that you take appropriate action and that you do it quickly. The time for action is now.