Senate Committee — SECD — Brief — 2024-09-23_secd_c-20_brief_npf_e

SECD / Brief / 2024-09-23_secd_c-20_brief_npf_e

Senate Committees

SUBMISSION ON BILL C-20

AN ACT ESTABLISHING THE PUBLIC COMPLAINTS AND REVIEW COMMISSION AND AMENDING CERTAIN ACTS AND STATUTORY INSTRUMENTS SEPTEMBER 2024 NPF Contact: Sarah Nolan - Director, Government Relations & Policy - snolan@npf-fpn.com

2 INTRODUCTION Civilian oversight is essential for ensuring public trust and confidence. The Civilian Review and Complaints Commission (CRCC) for the Royal Canadian Mounted Police (RCMP) is an arm’s-length body that reviews complaints about RCMP officer interactions with the public and may provide recommendations to improve RCMP policies and practices. With about 20,000 RCMP officers handling over three million documented interactions each year, complaints can be expected and are low relative to the number of interactions.

These complaints cover a broad range of allegations including improper attitude, lack of service, improper arrest, or use of force. In 2023, the House of Commons Standing Committee on Public Safety and National Security (SECU) proposed amendments to the Bill after its consideration. Although these amendments support our Members by enshrining the National Police Federation’s (NPF) participation as the union representatives for RCMP Members throughout the complaints process, the NPF is still concerned with the lack of adequate resources being allocated and process timeliness.

CURRENT PUBLIC COMPLAINT PROCESS FOR THE RCMP The CRCC receives complaints from individuals who believe they have been treated unfairly by RCMP Members. Complaints can be filed by those directly involved, witnesses, or individuals authorized to act on behalf of the complainant. The Commission may refuse to investigate a complaint if it is: • not filed within a year of the occurrence; • pertains to decisions about disciplinary measures; • better addressed through another process; or • deemed trivial, frivolous, vexatious, or made in bad faith.

If the complaint is deemed admissible, the Commission typically refers the complaint to the RCMP to conduct the investigation. Following that, the RCMP Commissioner’s delegate prepares a report that is sent to the complainant. The report notably contains the findings of the investigation and a

summary of any action that has been taken with respect to the disposition of the complaint . If the complainant is dissatisfied with the RCMP's response, they may refer the complaint to the Commission for their review. Should the CRCC find that the RCMP’s investigation was inadequate, the Chairperson may ask the RCMP to conduct further inquir ies. If satisfied, the Chairperson issues a "Satisfied Report" to the RCMP Commissioner, the Minister of Public Safety, the complainant, and the involved members, concluding the review process.

However, the current process results in most complaints being investigated by the RCMP itself, which creates an insular process, a perception of bias, and undermines the principles of independent civilian oversight. Effective oversight is e ssential to fostering public and Member trust - something the NPF strongly supports. The existing system’s lack of full independence fails to uphold the government’s intent to build trust in law enforcement oversight.

3 TOP RECOMMENDATIONS TO AMEND BILL C-20 1. Inclusion of “Third Party” Complainants Proposed amendments to sections 33(1) and 35 would permit "third parties" to file complaints and receive assistance from the Commission. However, "third party" remains undefined, and a proposed amendment to paragraph 52(b.1) seeks to restrict complaints from third parties that are not directly concerned by the subject matter of the complaint.

The lack of clarity around who qualifies as a "third party," the conditions for receiving assistance, and what it means to be "directly concerned by the subject matter " of a complaint , could lead to misuse of the Commission’s resources by advocacy groups filing potentially frivolous complaints, worsening existing resource constraints.

For example, a Convoy advocacy group could file frivolous complaints against RCMP Members who were involved in the RCMP response to the protests and then require the Commissio n assistance to do so, all under the guise of being “directly concerned” with the subject matter of the underlying issue. Further, the use of the words “third party” and “organization” in

section 35 should be clarified ; the wording in this

section is confusing, as it is unclear whether third parties can be individuals, organizations, or both. This

section should also be revised to permit the Commission to exercise discretion as to whether or not to provide a third party with assistance to make a complaint . This would be in line with the other amendments that increase Commission discretion (see below) and would avoid finite resources being disproportionately used for the assistance of third parties.

Potential amendments: • Requiring the third party to link their claimed “direct interest” to the factual underpinnings of the complaint: this would ensure that the third party is actually impacted by the incident and not merely interested in the ancillary issues being raised; • Requiring the third party to demonstrate that their involvement would relate to a matter of public interest: this requirement, which is mirrored in anti -SLAPP legislatio n, 1 ensures that the Commission has the power to turn away third parties whose interests are purely strategic; • Restricting third parties from bringing complaints with respect to issues that are already addressed in another complaint; and/or, • Giving the Commission the power to make vexatious litigant orders: 2 this would ensure that the Commission can pre -emptively identify third party individuals or organizations who tend to file large numbers of complaints and put them to a higher standard of justification to allow their complaints to proceed. 2.

Increased Timelines The proposed amendment to

section 33(3) extends the timeline for making a complaint to the Public Complaints and Review Commission (PCRC) from one year to two years. The NPF believes that the current model is already under-resourced and overburdened. In addition, an extended timeline means that facts surrounding an investigation could be harder to obtain or be affected by memory degradation , t hus impacting witness reliability due to the passage of time , as well as evidence decay.

This would not only 1 See, for example, s. 137.1 of the Ontario Courts of Justice Act, RSO 1990, c C.43, which was enacted to curb SLAPP (“Strategic Lawsuits Against Public Participation”) claims. SLAPP claims are commonly brought by powerful organizations and are often defamation, libel, and/or slander claims against bona fide criticism by comparatively less-resourced entities. 2 See, for example, s. 40 of the Federal Courts Act (RSC 1985, c F-7) and Canada v Olumide, 2017 FCA 42.

4 potentially create more work, but would also affect the accuracy of the investigation and the Member’s ability to defend themselves, influencing the overall procedural fairness of the process.. Potential amendment: • To effectively manage the increased workload,

section 33( 3) should be revised to restore the original language of the legislation- making the complaints timeline one year. Under sections 33(4) and (5), the legislation grants the possibility, in specific cases, of extending the time limit for making a complaint – if there are good reasons for doing so and it is not contrary to the public interest. 3. Increased Discretion of Commission The proposed amendments to sections 52 and sections 33(6.1) will enhance the Commission’s discretion to extend complaint timelines and dismiss complaints under certain circumstances.

This increased discretion will still be subject to the general requirements of administrative law - it will have to be exercised in a procedurally fair manner. Potential amendment: • The proposed amendments to sections 52(5) and 52(6) (the grounds under which the Commission can refuse to deal with complaints) should be clarified to allow respondents to argue for the applicability of these sections to a particular complaint. In other wor ds, respondents should be able to invoke these bars and not just wait to see whether the Commission will do so of its own accord. 4.

Limitation of Non-Disclosure Agreements The new proposed

section 35.1 provides that complaints made under this Act shall not be subject to a non-disclosure agreement (NDA).

This amendment raises concerns: it does not allow for an NDA even if the complainant desires one; it restricts the ability of parties to resolve matters in other forums, if the subject matter of the complaint has been raised (for example) in a parallel human rights complaint, civil claim, or other process; and it does not permit even partial NDAs (for example, arguably this would not allow for a confidentiality ag reement with respect to sensitive medical information or monetary settlement payments from a public complaint or another proceeding).

A blanket prohibition on NDAs is therefore overly broad and may have unintended consequences in other proceedings, including creating a bar to settling claims from other forums. This change will also compound the resourcing issue in the Commission process because more matters will go to a hearing if complaints become more difficult to settle. Potential amendments: • Specifying that this

section will not affect the enforceability of an NDA reached in another proceeding between the same complainant(

s) and respondent(s); • Allowing for the parties to agree that privileged information (as defined in

section 17(f), which includes medical information) will be kept confidential; and, • Allowing for the parties to agree that any financial aspects of any settlement of matters coming under the Act will be kept confidential.

5 ADDITIONAL AMENDMENTS TO THE ACT Bill C-20 offers a unique opportunity to address the issue of police investigating the police and to make the Public Complaints and Review Commission (PCRC) a fully independent public complaints body. 1. Independent Civilian Oversight Model The PCRC should end the practice of police investigating the police and implement a fully independent model, through amendments to

Part VII of the RCMP Act. •

Part VII , Investigations, Review and Hearing of Complaints, subsections 45.6, Investigation of Complaints by the Force, and 45.7 and 45.7(3)(b), Referral of Complaints to Commission, should be amended to either end the current model or to implement a new hybrid model. • A hybrid model could be implemented, with both civilian and police investigators; or, • If the current model is to continue , and RCMP Members are to continue to conduct PCRC investigations, there must be a clear cost recovery mechanism established to compensate for the countless hours and overtime RCMP Members spend conducting public complaint investigations that take them away from their core policing duties.

This is particularly harmful to smaller detachment areas where resources are vital to daily operations. CONTEXT POLICE INVESTIGATING POLICE While Canadians generally support their police, concerns about conflicts of interest and perceived bias in “police investigating police” remain. These concerns are magnified by traditional media, social media users, and increased public scrutiny through cellphone videos, body-worn cameras, and CCTV.

As public interest in police activities grows, there is a clear need for an external civilian oversight body to ensure that complaints investigations are conducted fairly and credibly. Internal police investigations offer several advantages, such as expertise in law enforcement procedures, insight into internal protocols, and familiarity with the communities served. They can also be more efficient and cost -effective since investigators a re already part of the organization. However, such investigations may suffer from bias or the perception of bias, lack of independence, and limited transparency.

These issues can undermine public trust and deter individuals from filing complaints. Many jurisdictions have established external oversight bodies or civilian review boards to promote impartiality, transparency, and public confidence. Some provinces use a hybrid model that includes both civilian and experienced police investigators, whethe r retired or active. This approach balances the benefits of both civilian oversight and police expertise.

It allows for the retention of essential police powers, fosters a cooperative environment through an understanding of police culture, and combines specialized skills, resulting in improved investigation quality. USE OF RCMP POLICE RESOURCES The CRCC receives about 3,500 public complaints annually,1 a 52% increase from 2017/18 to 2022/23. In 2022/23, the CRCC did not meet its three-business day service standard for forwarding complaints to the RCMP in 80% of the cases, with only 65% meeting the overall service standard.2 The growing demand for the complaints process shows no signs of decreasing.

6 Most complaints do not result in an investigation. However, conservatively estimating an average of 1,500 investigations annually, requiring an estimated 40-hours per case, equates to approximately 60,000 work hours- equivalent to 30 full-time police officers. This diverts significant resources from core policing duties. There is no cost recovery mechanism for communities to recoup these lost hours, further straining RCMP resources and reducing officers available for frontline services.

While the CRCC’s public complaints process is essential, the planned expansion to include the Canada Border Services Agency (CBSA) under the new PCRC will require additional resources. The CRCC currently reviews around 324 complain ts annually, but its existing structure and budget cannot handle the anticipated increased workload. The PCRC would need additional personnel and resources to effectively manage complaints related to both the RCMP and the CBSA.

The NPF believes that public complaints should be handled by a fully independent, well-resourced body, external to the RCMP, to align with practices in other jurisdictions and strengthen oversight.

This would also fulfill recommendations from Ministerial mandate letters, ensuring the RCMP adheres to best practices by eliminating the "police investigating police" model.3 INCREASED PCRC RESOURCES In 2022, the Government proposed an investment of $112.3 million over six years, with $19.4 million ongoing , to support changes under the PCRC. 4 However, the inclusion of the CBSA under the PCRC will likely lead to a significant rise in 39 53 81 33 75 50 84 166 224 255 171 215 190 212 15 8 10 8 23 21 18 0 50 100 150 200 250 300 2016 2017 2018 2019 2020 2021 2022 CBSA Misconduct Investigations Unfounded Founded Inconclusive 2645 2988 3641 3361 3938 4022 229 272 296 308 236 234247 255 394 322 403 292 0 800 1600 2400 3200 4000 2017/18 2018/19 2019/20 2020/21 2021/22 2022/23 CRCC Public Complaints Recieved and Requests for Review Number of Public Complaints Submitted to CRCC New Requests for Review Received by CRCC Complaint Review Reports issued by CRCC

7 public complaints, necessitating additional human and financial resources. Currently, the CBSA handles its own complaints process, but integration into the PCRC will bring increased scrutiny. Complaints against the CBSA often involve allegations of mistreatment, border crossing denials, or deportations. Between 2016 and 2022, CBSA misconduct investigation s rose steadily, with most complaints deemed valid, even during the pandemic when public interactions were limited .5 This trend highlights the need for a robust and independent complaints process for the CBSA.

To maintain public trust, the PCRC should adopt an independent model with its own investigators, similar to provincial public complaint bodies. This would ensure accountability and transparency for both the RCMP and CBSA. ABOUT THE NPF The National Police Federation (NPF) is the sole certified bargaining agent representing ~20,000 Members of the Royal Canadian Mounted Police (RCMP) across Canada and internationally. As the largest police union in Canada, the NPF is committed to enhancing public safety by increasing resources, equipment, training, and other supports for RCMP Members. 1 December 2022.

Departmental Results Reports. [Online] Available at: https://www.crcc-ccetp.gc.ca/en/departmental-performance-reports 2 December 2023. Departmental Results Reports. [Online] Available at: https://www.crcc-ccetp.gc.ca/en/departmental-results-report-2022-2023 3 May 2014. Police Investigating Police: A Critical Analysis of the Literature. [Online] Available at: https://www.crcc-ccetp.gc.ca/en/police-investigating-police- critical-analysis-literature 4 May 2022. Bill C-20 –

An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments. [Online] Available at: Bill C-20 –

An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments - Canada.ca 5 June 2021. The number of misconduct investigations of border officers rose last year. [Online] Available at: https://www.cbc.ca/news/politics/cbsa-terminations- misconduct-1.6048545

Document details

Collection	Senate Committees
Citation	SECD / Brief / 2024-09-23_secd_c-20_brief_npf_e
Type	committee
Volume / chapter	441 / Brief / 2024-09-23_secd_c-20_brief_npf_e
Language	en
Format	pdf
Source	COMM_SEN
Identifier	57267beccf21490991c402b41f9e2857aaa6ccb3

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