ARCHIVED - Chair's Final Report after Commissioner's Notice – Canada Day 2008

RCMP Act Subsection 45.46(3)

Version vetted for posting

March 27, 2009

File Number: PC-2008-1800

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The Complaint

In preparation for the Canada Day celebrations of 2008, the West Shore RCMP Detachment in British Columbia, working with the Victoria Police Department (VPD), other police agencies and B.C. Transit, developed an operational plan to respond to what had occurred on Canada Day in recent years. The objectives of the plan were to respond in a proactive way to what had become a civic event mired in excessive liquor consumption and vandalism on the part of some attendees. A woman, Ms. A, complained that she had been searched by West Shore RCMP members on July 1, 2008 without the requisite grounds to do so.

On July 8, 2008, the British Columbia Civil Liberties Association (BCCLA) lodged a complaint with both the Commission and with the Office of the Police Complaint Commissioner of British Columbia (OPCC) regarding the legality of the searches and seizures conducted by the RCMP members. In its complaint the BCCLA indicated that "police forces in Canada do not have the legal authority to initiate random or mandatory searches such as those that occurred in Victoria," and that "police forces in Canada cannot seize property without legal authority. While alcohol cannot be consumed in a public place, there is no law prohibiting people from carrying closed containers of alcohol."

The Commission's Public Interest Investigation Report

Upon examining the complaint, I considered that due to the public policy issues involved it was advisable in the public interest to have the Commission conduct a "public interest investigation" into the matter pursuant to subsection 45.43(1) of the RCMP Act. This meant that the Commission would investigate the complaint in the first instance instead of having the RCMP conduct an investigation on its behalf.

Following exchanges with the OPCC and the Victoria Police Board (Board), it was decided that given the need for consistency in the reviews of the RCMP and the VPD and any recommendations resulting therefrom, a harmonized approach (i.e. between the Commission, the OPCC and the Board), rather than a disjointed one, would be most beneficial.

It was also agreed that the harmonized approach, which recognized the Commission as a "public body" pursuant to section 63.1 of the B.C. Police Act, would allow me to provide the summary of the facts and an opinion regarding the legality of the actions of the VPD to the Board for its consideration and any further action that it may deem appropriate.

On July 31, 2008 the Board accepted the Commission's offer to conduct an investigation into the policy or service complaint investigation lodged by the BCCLA pursuant to section 63.1 of the B.C. Police Act. A separate investigation report was provided to the Board.

On January 23, 2009, I provided a copy of my Public Interest Investigation Report to the Commissioner and the Minister, in which I found the following:

1. The lack of note taking by members of the West Shore RCMP Detachment is inconsistent with RCMP policy.
2. Ms. A did not consent to having her bag searched by RCMP members.
3. There is a strong possibility that those whose bags were searched by RCMP members did not give genuine consent to having their bags searched.
4. The RCMP members did not have grounds, under the Liquor Control and Licensing Act, to search Ms. A's bag.
5. The British Columbia Transit Act and Transit Conduct and Safety Regulation do not authorize the searches of passengers' bags conducted at the bus stops, such as the search of Ms. A, either at the outset or at the established checkpoints where transit drivers stopped because they felt they needed assistance.
6. The RCMP Operational Plan and the VPD Operations Plan, while designed to achieve the objective of a safe civic celebration, appear to have been considerably broader in scope than Charter or common law considerations permit, and did not minimally impair the constitutional right to be secure against unreasonable search or seizure.

With respect to my first finding, I recommended that, consistent with policy, RCMP members take contemporaneous notes and document their actions thoroughly. In light of my other findings, I recommended that until such time as the required legislative bases are put in place, the RCMP's participation in preventative and early interdiction liquor strategies be limited to police presence, and searches only be conducted when the RCMP members have the requisite grounds under the applicable legal authority.

The Commissioner's Notice

Pursuant to subsection 45.46(2) of the RCMP Act, the Commissioner is required to provide written notification of any further action that has been or will be taken in light of the findings and recommendations contained in my Public Interest Investigation Report.

On March 27, 2009, the Commission received the Commissioner's Notice. I am pleased to report that the Commissioner agreed with my findings and recommendations.

The Commission's Findings and Recommendations

Pursuant to subsection 45.46(3) of the RCMP Act, I respectfully submit my Final Report and, accordingly, the Commission's mandate in this matter is ended.

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Paul E. Kennedy
Chair

Version vetted for posting

RCMP Commissioner's Notice

March 26, 2009
Mr. Paul E. Kennedy
Chair
Commission for Public Complaints Against the RCMP
P.O. Box 1722, Station "B"
Ottawa, Ontario
K1P 0B3

Dear Mr. Kennedy:

I acknowledge receipt of your interim report dated January 23, 2009, and materials relevant to the complaint of the British Columbia Civil Liberties Association (2008 Canada Day celebration in Victoria, British Columbia - Liquor seizures by police), file reference PC-2008-1800.

I have completed a review of this matter, including the findings and recommendations set out in your interim report. This notice is provided pursuant to subsection 45.46(2) of the Royal Canadian Mounted Police Act.

I agree with your finding that there was a lack of note-taking by RCMP members of the West Shore Detachment. Accordingly, I will direct that in the future, RCMP members are to properly document each case when liquor is seized and destroyed.

I agree with your findings that Ms. A did not consent to having her bag searched by RCMP members, and that there is a strong possibility that those whose bags were searched by RCMP members did not consent to having their bags searched.

I also agree with your findings that the RCMP members did not have grounds under the Liquor Control and Licensing Act to search Ms. A's bag, and that the British Columbia Transit Act and Transit Conduct and Safely Regulation do not authorize searches of passengers' bags at the bus stops, such as that conducted on Ms. A.

Finally, I agree with your finding that the RCMP Operational Plan, while designed to achieve the objective of a safe civic celebration, appears to have been considerably broader in scope than the Canadian Charter of Rights and Freedoms or common law considerations permit, and did not minimally impair the constitutional right to be secure against unreasonable search or seizure.

Accordingly, I will direct that the RCMP's participation in preventative policing and early interdiction of liquor strategies in British Columbia be limited to police presence, and that searches will only be conducted when the RCMP members have the requisite grounds under the applicable legal authority.

I look forward to receiving your final report in this matter.

Yours sincerely,

William J.S. Elliott