Presentation by the Chair, RCMP External Review Committee to the Task Force to Report on Governance and Cultural Change in the RCMP

September 5, 2007

Introduction

The Committee is an independent and arms length labour relations tribunal established by Part II of the Royal Canadian Mounted Police Act (the "Act"). The purpose of this presentation is to inform the Task Force about the role of the Committee within the RCMP labour relations environment. It has particular experience relevant to the Task Force's examination of the RCMP disciplinary process and the time limit for initiating disciplinary action. As well, it is involved in the RCMP grievance process, which is an internal accountability mechanism that can impact on accountability and governance issues.

1. Snapshot of the RCMP External Review Committee

The creation of the RCMP External Review Committee arose out of the Report of Mr. Justice René Marin, head of the Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure within the Royal Canadian Mounted Police (Information Canada, Ottawa, 1976). The report identified the need for more independent labour relations in the RCMP. The Committee was created in 1986 to fulfill the role of providing an independent review mechanism with regard to labour relations issues.

The mandate of the Committee is to review grievance, disciplinary and discharge and demotion cases referred to it by the RCMP, and provide recommendations on these cases to the RCMP Commissioner. The Committee's reviews are intended to ensure transparency, fairness, impartiality and independence in the internal RCMP labour relations process.

As Justice O'Connor recently stated in the Arar Commission Policy Review Report, a primary objective of external review is to maintain public confidence in the agency subject to review, and it also ensures that the agency respects the law and human rights.

The Committee's jurisdiction is with respect to regular members and civilian members only. Public servants employed by the RCMP have separate labour relations processes.

At this time, the Committee has one member who is both the Chair and Chief Executive Officer, appointed by the Governor in Council for a term not exceeding five years. Under the Act, anyone who sits on the Committee cannot be a member or former member of the RCMP. The Committee also has one person who is Executive Director and Senior Counsel, and 5 other public servants. It has a budget of approximately $1M.

In 2006-2007, the Committee reviewed 42 grievances and issued 40 recommendations, compared to 34 cases reviewed in 2005-06 (and 30 recommendations issued) and 24 cases reviewed (and 23 recommendations issued) in 2004-05. The Committee issued 5 recommendations on disciplinary appeals. No recommendations in the area of discharge and demotion were issued.

The Committee has not dealt with any cases related to matters raised in the Brown report.

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

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

The Committee has a very distinct mandate. Over the years, the RCMP has made changes in a variety of areas because of recommendations made by the Committee. Specific areas of concern have been raised, leading to policy changes with regard to medical discharge, suspension without pay, and harassment. Procedurally, the Committee has raised diverse issues, such as maintaining and protecting procedural fairness, ensuring access to information, preventing bias or the appearance of bias in the decision-making process, and protecting the right to be heard.

2. Role of the Committee in the RCMP Discipline Process

All members must follow the RCMP Code of Conduct (found in ss. 38-58.7 of the RCMP Regulations, 1988). Part IV of the Act describes disciplinary processes and sanctions for members of the RCMP, and it sets out the accountability mechanisms for members who are found to be in violation of the Code of Conduct. Violations of the Code may be addressed informally, but in more serious cases will be addressed through formal measures. Where formal discipline is initiated, the matter is referred to an adjudication board (the "Board"), comprised of three officers of the RCMP. A hearing is held and the Board determines if the member has violated the Code of Conduct. If so, another hearing is held to determine the appropriate sanction to be imposed. To come to this determination, the Board will consider all relevant circumstances, as well as both the aggravating and mitigating factors.

Under Part IV of the Act, the officer who initiated the disciplinary hearing or the member may appeal the Board's decision to the Commissioner. Only the member who has allegedly violated the Code of Conduct has the right to appeal the sanction ordered. Appeal submissions are made in writing. Unless the member requests otherwise, the Commissioner refers all disciplinary appeals to the Committee for its findings and recommendations.

3. Role of the Committee in the RCMP Grievance Process

The grievance procedures under the Act provide a method of resolving disputes involving personal rights and interests. Section 31(1) of the Act provides that a member has standing to grieve any decision, act or omission in the administration of the affairs of the Force that had a personal effect on the member, so long as no other process for redress is provided by the Act, the Regulations or the Commissioner's Standing Orders.

The principal component of the Committee's work is the review of RCMP grievances. Initially these are reviewed by an RCMP officer designated as a Level I Adjudicator, and the decision is based on written submissions. If a member is dissatisfied with the decision, then the member files a Level II grievance.

The Committee does not conduct an external review of every Level II grievance within the RCMP. By law, only five specific categories of grievances are referred for a Committee review (section 36 of the RCMP Regulations). These are:

• interpretation and application of government-wide policies that apply to members of the RCMP;
• stoppage of pay during suspension of a member;
• interpretation and application of the Isolated Posts Directive;
• interpretation and application of the Relocation Directive;
• administrative discharge on grounds of physical or mental disability, abandonment of post, or irregular appointment.

Currently, the majority of the grievances referred to the Committee are received under subsection (a), and it is this category that presents the most challenges in interpretation. There are 3 elements under s.36(a). First, there must be a government-wide policy. This is normally a Treasury Board policy, but other government-wide policies (ie, health or safety policies) may originate from other Departments and be applicable here. Second, the government-wide policy must also be applicable to RCMP members. Examples of these types of policies include Treasury Board's policies on the payment of legal fees, travel expenses, crown-owned accommodation and harassment. Third, the grievance must be about the Force's interpretation of the policy (as opposed to a disagreement with the policy itself). The common thread of matters which are not referable is that they do not involve government-wide policies, but rather policies applicable only to the RCMP. So, for example, grievances on issues such as transfers and pensions would normally not be referable to the External Review Committee.

Because only certain grievances are referred to the Committee, there is sometimes confusion about what actually can be referred to the Committee and some commentary that the categories should be broader. At the present time, it is the RCMP that makes the decision on whether a grievance will be referred. If the government wanted to have a broader external review of grievances, there are several options. It could amend the law to allow presentation of all Level II grievances to the Committee, that is, eliminate the notion of referability. If it wished to continue having only certain grievances referable, it could give the Committee a role in determining referability, and it could have a very clearly delineated list of what goes where. In the view of the Committee, clarifying the referability issue would enhance the transparency of the grievance process to members of the RCMP.

Should referability still be considered vital to employment relations in the RCMP, there should be room for discretionary referability, that is, giving to the Commissioner the option of referring a grievance to the Committee that would not otherwise be referable. This is provided for, for example, under the National Defence Act for their referrals of cases to an external grievance board. Another possible option would be for the law to be amended to allow for policy grievances, as this would enhance the capacity for dialogue on important issues affecting RCMP members.

In the grievance area of its mandate, the Committee examines a variety of human resources related issues that come into dispute. For example, areas such as harassment, travel entitlements, relocation, foreign service travel, suspension without pay, entitlement to force housing, and isolated posts were raised in cases under review before the Committee.

4. Role of the Committee in the RCMP Discharge and Demotion Process

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

Either the member or the Commanding Officer may appeal the decision of an RCMP discharge and demotion board. Appeal submissions are made in writing and the appeal is then referred to the Committee.

5. The Time Limit in the Discipline Process: Section 43(8) of the RCMP Act

The limitation period for initiating disciplinary proceedings against members of the RCMP is contained in section 43(8) of the Act: "No hearing may be initiated by an appropriate officer under this section in respect of an alleged contravention of the Code of Conduct by a member after the expiration of one year from the time the contravention and the identity of that member became known to the appropriate officer". In most cases, the Appropriate Officer (the "AO") is the Commanding Officer of the Division.

When the AO presents a certificate stating the time an alleged contravention of the Code of Conduct by a member and the identity of that member became known to the AO (s. 43(9) of the Act), it constitutes proof of the date the AO became aware of the allegations, and therefore proof of the starting point of the one-year time limit. However, where evidence to the contrary is presented by the member, the burden shifts to the AO to prove on a balance of probabilities that the information relied upon to prepare the certificate was factually correct.

Section 43(8) has been subject to interpretation both before the Committee and the Commissioner of the RCMP, and before the Federal Court. The test under section 43(8) is not always easy to apply or to understand and has been subject to much interpretation.

Thériault v. the RCMP, [2006] FCA 61, is a recent Federal Court of Appeal decision that has provided guidance on some issues pertaining to section 43(8). The Federal Court of Appeal stated that the AO acquires the knowledge referred to in section 43(8) of the Act when he or she is in possession of reliable and persuasive information about the alleged contravention and the identity of the member. The degree of knowledge required for the time period to begin to run does not need to be confirmed through an investigation, and it is not necessary to have all the evidence required to exercise the right of action. The Court of Appeal also concluded that an Officer's knowledge of the points set out in section 43(8) of the Act follows him when he assumes the position of Appropriate Officer, even if it is only on an acting basis.

In Thériault v. the RCMP, the Court noted that section 43(8) is attempting to balance the need for fairness to members subject to discipline, and the need to maintain the integrity of the RCMP as an institution.

There have been ten disciplinary appeals before the Committee where section 43(8) has been interpreted. (It is important to note that cases in which a disciplinary action is not initiated because the time limit has passed would not be referred to the Committee for review).

In addition to the points dealt with in Thériault v. the RCMP, the Committee has commented on other issues regarding section 43(8). For example, in one case, the Adjudication Board found that the section 43(8) time limit began to run as of the date that the AO ought to have been given the required information. The Committee disagreed, stating that the section was clear that actual knowledge on the part of the AO was required. In another case, the member's former commanding officer was aware of the alleged wrongdoing many months before the member's current appropriate officer was informed. The Committee stated that the time limit began to run only at the point that the current appropriate officer became aware of the required information.

Given its experience in applying and interpreting section 43(8), the Committee would suggest that the time limit be reworded to create a simpler test. It is sometimes difficult to determine when the AO had the required knowledge and therefore when the one year clock started. This occurs where no section 43(9) certificate is presented, or where the member has submitted evidence to the contrary. Also, members have sometimes raised the argument that there is no guarantee of transparency in the way section 43(8) is written, and that the time limit can be extended by having the AO shielded from receiving the information about the allegation and the identity of the member.

The Committee recognizes that while the timeliness of a disciplinary matter is important, so is the public interest seeing allegations of Code of Conduct violations addressed. If, for instance, the Act was amended so that the time limit began from a point that was more easy to determine but this created a shorter window to take action, the balance between being fair to the member and safeguarding the integrity of the Force could be maintained by providing for a transparent application to extend the time limit when a longer investigation is needed.

6. Other Issues Regarding the RCMP Discipline Process

In terms of the Accountability, Timeliness and Effectiveness of the RCMP Disciplinary Process, there are several issues that have been raised over the years that the Task Force may be planning to explore.

The Current External Review Mechanism Provides a Recommendation, Not a Decision

As stated above, the creation of the RCMP External Review Committee arose out of the Report of Mr. Justice René Marin, head of the Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure within the Royal Canadian Mounted Police. The report identified the need for more independent labour relations in the RCMP. Justice Marin was of the opinion that decision-making in the areas of discipline and grievance should rest with the Commissioner: "...a review authority must not abrogate, nor limit, the authority for the control and management of the Force which is vested in the Commissioner". This sentiment was echoed recently by Justice O'Connor in the Arar Commission Policy Review Report. He stated that matters of police discipline should rest within the management prerogatives of the individual police forces.

However, the Committee is aware that there are other jurisdictions in which an external body renders the appeal decision in discipline matters. The question is complex. Without expressing an opinion on the merits of either model, the Committee would state that it is ready to carry out its mandate under whatever scenario was in place. In its opinion, the change from a recommending body to a decision-making body would not be difficult, as the Committee already has the process in place suitable for either model.

External Review of RCMP Labour Relations Matters is Separate and Distinct from External Review of Public Complaints

The Committee is entirely focussed on the labour relations domain. It does not have any authority in the area of public complaints. In the Committee's view, in the context of the RCMP, the separation of the two functions of public complaints review and labour relations review is important.

Public complaints against the RCMP are handled by the Commission for Public Complaints against the RCMP ("CPC"). In addition to providing recommendations to the Commissioner on police investigations of public complaints, it also has the power to initiate its own investigation. In this model, if one body were to have the authority to investigate a complaint and also recommend or decide on disciplinary measures taken as a result of the same complaint, there could arise an appearance of bias. This was the opinion of Mr. Justice Patrick Lesage in his review of the Ontario Civilian Commission for Police Services Ontario (the "OCCOPS").

Furthermore, at the federal level, the Committee's mandate includes not only discipline, but also grievances and discharges and demotions. Merging the broader labour relations review mandate of the Committee with the public complaints review function of CPC would have particular challenges. (The Committee prepared a submission to the Arar Commission on the issue of merger of public complaint and labour relations review at the federal level.)

The Committee has addressed the issue of public input in the RCMP disciplinary process in its submission to the Arar Commission and it has suggested options that could be integrated into the Committee's mandate as an appeal body:

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

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

- a civilian driven appeal of sanction could be undertaken after a disciplinary adjudication board decision and the Committee could then review those appeals as well as those already under its statutory mandate; or

- rather than having simply recommendation making power on an appeal of disciplinary decisions where there is a public complaints issue, a disciplinary review structure such as the Committee could provide a final decision.

Effectiveness is Related to Transparency and Outreach

Essentially, the Committee is an appeal body and sees disciplinary cases long after they have been initiated or the event occurs. In addition, on appeals of disciplinary matters, the Committee is closely examining and reviewing the Adjudication Board decision, not the entire disciplinary process itself. Therefore, though it observes trends in disciplinary cases from time to time, they are not trends that could lead to direct conclusions as to the quality of the RCMP discipline process itself.

However, the Committee believes that one element of an effective discipline system is transparency. In this respect, the Committee contributes to the effectiveness of the RCMP discipline process through its communication and outreach function. The Committee has a quarterly publication available through mailings or the Internet (www.erc-cee.gc.ca) which contains not only summaries of all Committee recommendations, but also articles of interest on subjects relevant to the RCMP labour relations environment, as well as summaries of relevant court decisions. The Chair and staff also make presentations about the work of the Committee.

The Committee's work in the area of communications and outreach is limited due to its small size. When it was first created in 1988, the Committee had more personnel. It had a section dedicated to research and produced a number of informative papers on issues of police discipline and grievances. In 1993, the Committee's numbers were cut by more than one-half. One result was that its research function was eliminated and its outreach activities were curtailed.

From 1993 to the present, the Committee has faced major resource pressures. It has seen increases both in its caseload and in its corporate requirements. The Committee received interim funding to facilitate case review, and is seeking additional financial support to meet its many corporate demands. However, longer term funding solutions are needed.

Timeliness is an Issue in the Discipline Process

The process from the time an alleged violation of the Code of Conduct occurs to the date of a final decision from the Commissioner on an appeal of a discipline ruling can take a great deal of time. Unfortunately, presently included in the long time frame are delays at the Committee stage of external review.

The Committee has no control from year to year over the number of cases that are referred to it and also, there can be great variance in the level of complexity of the cases received. Several years ago, the Committee developed time lines within which grievances, disciplinary and discharge appeals should be processed. For grievances, the Committee determined that approximately three months should be needed for the completion of the grievance. For disciplinary and discharge and demotion cases, the time frame was determined to be 6 months. At this time, these time frames are not being met in every case and the Committee has a backlog of cases, defined as cases that have been referred to the Committee over one year ago. It continues to address this through integrated prescreening and peer review procedures in its operations. As well, it has received more funds to facilitate case review generally. The additional funding sources available to it have been limited to shorter term funding. It is therefore challenged in its staffing because it cannot attract indeterminate staff at the present time for these additional positions and cannot engage in longer term planning.