The 2012 Summer Series is a collection of essays, articles and op-eds published by the Canadian Civil Liberties Association. The Summer Series explores some key questions about rights and responsibilities in democracy and examines topical issues through a civil liberties lens.
To view all articles of the Summer Series, click here.
Discussions of police accountability often start with the famous dictum from Sir Robert Peel who created the Metropolitan Police in 1829 that “the police are the people and the people are the police“. Peel meant that there is no policing possible unless the community trusts its police. The police force belongs to the community it serves and it must reflect it. Police forces across Canada strive to adopt such principle by hiring from the community and by engaging into constant dialogue with the various constituencies that it must police.
Civilian oversight also stems from Sir Robert Peel’s dictum. If the police is and belongs to the people, shouldn’t they have a say in its running? In Canada, the commitment to a form of civilian oversight is evident, but not all civilian oversight is equal in strength. In the fall, the government will table a new bill, an Act to amend the Royal Canadian Mounted Police Act., Bill c-42.The Bill gives additional powers to the Commissioner of the RCMP to discipline its members and establishes a new commission, the Civilian Review and Complaints Commission for the RCMP.
An examination of the powers of this new Commission reveals that although it is certainly a step in the right direction, it falls short in many respects. In this piece, I will discuss the limits imposed on the investigations that the Commission can undertake on its own initiative.
A good civilian oversight regime must provide for the power of the oversight body to conduct reviews on its own initiatives, that is, without the presence of a formal complaint. This “audit” power is an important feature of a convincing oversight regime because complaints against police forces are not always forthcoming or the problems may be systemic in nature. For example, although the family of a mentally challenged individual “tasered” by the police may not want to lay a complaint, it may be worthwhile for the civilian body to examine whether the use of Tasers was done appropriately. Such a review could help prevent further tragedies and simply ensure that good policies are followed. It is reassuring to the public to know that there is the possibility of a review by an independent body to determine when and how or even whether new non-lethal weapons should be used. The Bill does provide for the power of the new civilian oversight to conduct such review. However, it imposes several limitations:
a. The review can only be done on specific RCMP activities to determine whether the RCMP has followed its own policies and procedures, the legislation or Ministerial directions. In other terms, it cannot undertake a review of a RCMP policy except in relation with a specific incident.
This seems to undermine the capacity of the Commission to undertake proactively preventive action: it could not comment on the RCMP “infiltration” policy or “taser” policy unless it was raised in the context of a specific activity of the RCMP. After the fact, that is, after it is known that a protest group has been infiltrated or after the taser has been used, the Commission can comment on “the adequacy, appropriateness, sufficiency or clarity” of a policy, but not before. This seems unduly restrictive and confines the new Commission to an ex post facto role. An after-the-fact review is necessary, but, at times, it may have been helpful to have the opinion of the Commission and its advice prior to policies being implemented. There is little civilian input in the development of policies at the RCMP level. This is a missed opportunity. The Morden Report on the G20 events in Toronto, for example, has suggested that robust civilian policy review does enhance the sense of trust in policing. Why not embrace such a model at the RCMP level?
b. The review can only be done if “no other review or inquiry has been undertaken on substantially the same issue by a federal or provincial entity”
Although at first glance, this restriction may seem to make good financial sense, because it may prevent wasting resources, it must be read in the context of multi-forces policing that can occur in Canada. Policing during the G20 in Toronto in 2010 is an example of such cooperation between police forces. Some of the major problems of the multiple reviews undertaken after the G20 is the limited jurisdiction of the various bodies and the irreconcilable conclusions that they reached. For example, the Morden report (undertaken under the authority of the Toronto Police Review Board) concluded that the RCMP was partly to blame for the problems experienced by the Toronto Police while the RCMP Review concluded that it was not. The public is left no knowing what really happened and what could have done better. The new RCMP Act provides for some “joint” reviews with provincial bodies when provinces conclude arrangements for hiring the RCMP, but this is not sufficient. At times, it will be necessary for the commission to conduct reviews even if a provincial body has dealt with the same subject, whether it is the use of non-lethal weapons, infiltrations, or the use of force. The statutory language may prevent the conduct of very useful investigations.
c.The Commission must give notice to the Minister before conducting the review.
It is unclear what are the power of the Minister in this context. He or she receives the information. Can the Minister put pressure on the President of the Commission not to undertake the review? Why impose this requirement?
Overall, the power of the Commission to undertake reviews of its own initiative is couched in language that undermines the potential of such reviews. The model proposed is limited and does not reflect the advances of knowledge in governance. It is already five years out of date.
Civilian oversight is not a curse, or a necessary evil. It is an investment in good policing. Because the police have a monopoly – one cannot choose which officer will come to investigate – it must be subject to review. Because it is the only group that has the right to use force to carry out its process, it must be accountable for the way in which it uses this power.
Nathalie Des Rosiers
General Counsel
