Chair's Final Report After Commissioner's Notice – Police Investigating Police

Case File Review:

The CPC assessed 28 randomly-selected cases in order to determine how appropriately each RCMP member investigation was handled against five key criteria: (1) conduct, (2) policy compliance, (3) timeliness, (4) line management and (5) level of response.

To secure a random sample for review, cases were first categorized by RCMP region/division and by offence category (assault, sexual assault and death). From this list, a random selection was made to ensure that every RCMP Region and every offence category was represented.

With the sample selected, the CPC then began the work of assessing each case against the RCMP-CPC jointly developed criteria for the E (British Columbia) Division Observer program, set out in the Chair-initiated complaint which includes: (1) conduct, (2) policy compliance, (3) timeliness, (4) line management and (5) level of response.

In order to make a determination about whether or not the RCMP handling of each investigation was appropriate, the CPC included a more detailed definition of what could be considered "appropriate" under each of the pre-established Observer criteria. It is important to note that the development of these detailed baseline definitions was necessary given that nothing currently exists in policy or in legislation to guide the appropriate handling of a member investigation. There is no gold standard. So we created one.

The detailed baseline definition for each criterion was developed based on:

• An assessment (including interviews) with domestic and international criminal investigative bodies and best practices identified therein.
• Key concerns identified in the public submissions to the CPC which expressed what key stakeholders (members of the public, international and domestic policing and oversight bodies, NGOs, etc.) identified as acceptable and unacceptable (e.g. need for transparency, timeliness, impartiality).
• Results of the CPC's preliminary scoping of RCMP member investigations and recommendations regarding common Canadian police practices.

In order to maximize transparency in our review and ensure rigor in the process for both the public and the RCMP, the CPC identified whether the handling of each of the 28 cases was deemed to be overall:

• Appropriate: Met or exceeded all criteria identified. No issues were found with the handling of the investigation.
• Inappropriate: Did not meet key criteria. Issues were found that the CPC identified as significant enough to potentially undermine the integrity of the investigation.
• Partially Inappropriate: Met some criteria but not all. This category was introduced to credit the RCMP in cases where some criteria were met but where room for improvement remained.

On May 15, 2009, the CPC concluded generally in its Interim Report that:

To answer the question: "Can the current process of the RCMP investigating itself legitimately engender confidence in the transparency and integrity of the criminal investigation and its outcome?" – the informed CPC answer is that it cannot. To address this, the CPC has recommended legislative, policy, procedural and structural proposals for change.

While the specific findings and recommendations relating to this issue are set forth below, the following are highlights of the Report:

• While the RCMP contention that member investigations be handled like any other investigation may be an honourable one (meaning without bias), the very nature of an investigation by one police officer into another is fundamentally different from the police investigating a member of the public for the exact same crime. Police are held to higher account by the very nature of the work they do. It is therefore the CPC's contention that criminal investigations into RCMP members should not be treated procedurally the same as any other criminal investigation.
• Results of the CPC's policy analysis revealed inconsistencies in policy content and application across RCMP divisions. While the RCMP has developed a number of policies relating to how criminal investigations should be undertaken generally, very few policies address the issue of RCMP member-committed offences specifically. This is a serious concern.
• At present, the handling of member investigations varies by Division, with discretion resting at the Division level with no national, mandatory requirements for the handling of member criminal investigations.
• Overall, the lack of national and divisional data collection – or monitoring capacity – for member investigations (combined with varied divisional RCMP record-keeping and retrieval methods on this issue) demonstrates a lack of centralized coordination and attention being placed on member investigations.
• This is why the CPC therefore recommends the creation of the position of National RCMP Member Investigation Registrar to coordinate the development of national policy and the handling of member investigations at the Division level.
• It is the CPC's contention that there are certain instances where the RCMP should not investigate itself. As the seriousness of the offence alleged against a member rises, the discretion for the RCMP to respond as it deems appropriate must be removed and mandatory requirements should be inserted in its place.
• The CPC recommends the following mandatory requirements be introduced:
  • All member investigations involving death should be referred to an external police service or a provincial criminal investigative body (where in place). There should be no RCMP involvement in the process and the CPC Observer should be embedded to ensure transparency from a civilian perspective.
  • In all member investigations involving serious injury and sexual assault, it is recommended that the CPC and the RCMP National Registrar^{Footnote 1} jointly determine an appropriate response from the following options:
    • Refer the investigation to an external police service or provincial investigative body (where in place); or
    • Deploy an RCMP HQ Mobile Critical Incident member investigation team; and
    • Ensure the CPC observer is embedded in the investigation.

Overall key findings from the case file review:

Text Version

CPC Complaint Criteria – Overall Assessment

• Conduct
  • Appropriate – 100%
  • Partially Inappropriate – 0%
  • Inappropriate – 0%
• Policy Compliance
  • Appropriate – 93%
  • Partially Inappropriate – 0%
  • Inappropriate – 7%
• Level of Response
  • Appropriate – 82%
  • Partially Inappropriate – 14%
  • Inappropriate – 4%
• Timeliness
  • Appropriate – 32%
  • Partially Inappropriate – 43%
  • Inappropriate – 25%
• Line Management
  • Appropriate – 32%
  • Partially Inappropriate – 36%
  • Inappropriate – 32%

• Overall, RCMP member conduct was deemed highly appropriate in 100% of the cases reviewed. The CPC found that the RCMP investigators charged with the task of investigating another member acted professionally and free from bias.
• The CPC also concluded that RCMP member policy compliance was appropriate in 93% of the cases. Only two minor policy violations were found. It is important to note that this criterion sought only to determine how well members followed policy in place at the time of each investigation, and did not seek to assess the adequacy of these policies (this issue was assessed separately, as outlined previously).
• The timeliness of member investigations was also deemed overall appropriate 82% of the time. Of the 28 cases reviewed, 60% were completed in six months or less. However, 19% of these cases took over one year to complete, thereby potentially excluding members from internal disciplinary processes, if required. Specific concerns were also raised around the handling of historical cases which took considerably longer to investigate (one historical case still remained ongoing after 28 months at the time of publication).
• The two criteria the CPC found of greatest concern were the RCMP's handling of the investigations in relation to line management (which looked at any actual/perceived conflict of interest; appropriate management structure and reporting relationships) and level of response (which looked at how appropriate and proportionate the RCMP response was to the gravity of the incident).
• Given the fact that these two criteria specifically relate to the process of how member investigations are handled, this analysis further helps to illustrate the fact that CPC concerns relate largely to the current RCMP process (which is flawed) and not individual RCMP member action.
• Of particular concern to the CPC is the RCMP's line management, which was deemed to be appropriate in only 32% of the cases. Sixty-eight percent of the cases reviewed were deemed to be handled either partially or entirely inappropriately.
  • Of particular concern was the fact that 25% of primary investigators identified themselves as personally knowing the subject member. Another critical concern is the fact that in 60% of the cases reviewed, a single investigator was assigned to investigate another member, thereby placing the integrity of the investigation at risk for potential conflict of interest or perception of bias.
    • Further, in 32% of the cases, the primary investigator assigned was of the same or lower rank as the subject member, thereby creating the potential for intimidation. Recommendations to address these concerns are outlined in greater detail below.
• Of equal concern to the CPC is the 68% of cases deemed to be partially or entirely inappropriate for level of response.
  • Of particular concern was the fact that interviews with subject members and witness officers were conducted by a lone investigator in 17 of the 28 cases, again creating the potential for intimidation or a conflict of interest.
  • Other concerns included the referral of cases to the proper sections. The CPC noted inconsistent assignment of files across divisions and an absence of formal criteria to identify which investigative unit should be assigned which cases.
  • The CPC also found a significant disparity in the qualifications of the investigators (including primary investigators) assigned to member investigations.

The Commission's Findings and Recommendations:

For ease of reference, the overall findings and recommendations are listed below in the format in which they appear in the body of the report (numbered and boxed). Overall, the CPC made 20 findings and 14 recommendations, all of which were used to develop the recommended CPC model for how the RCMP should handle its member investigations involving serious injury, sexual assault or death in future.

CPC Final Report Findings:

Finding No. 1: What is at issue today is no longer whether civilian review is desirable, but rather, how civilian involvement in investigations can be most effective.

Finding No. 2: The very nature of conducting criminal investigations requires that police, to some extent, must be part of the solution.

Finding No. 3: RCMP policies, while voluminous, are inconsistent and do not adequately address the handling of member investigations.

Finding No. 4: The lack of national and divisional data collection – or monitoring capacity – for member investigations (combined with varied divisional RCMP record-keeping and retrieval methods on this issue) demonstrates a lack of attention being placed on member investigations.

Finding No. 5: Overall, personal knowledge of subject member for primary investigators occurred 25% of the time and 4% of primary investigators were from the same detachment as the subject member.

Finding No. 6: There was a slightly higher likelihood of primary investigators personally knowing the subject member (14%) in remote and northern postings than in other more centralized locations (12%). However, there does remain a large number of primary investigators (12%) from more centralized divisions where external assistance is more readily accessible.

Finding No. 7: Overall, in the opinion of the CPC investigators, the use of expert witnesses in the cases was appropriate.

Finding No. 8: Overall, the number of team members assigned to the 28 investigations was inadequate.

Finding No. 9: Overall, the CPC found the structure and reporting relationships of the 28 cases reviewed to be partially or entirely inappropriate (68%).

Finding No. 10: Of the 28 files that the CPC investigators reviewed, it was found that in 17 of these files, the subject member and witnesses were investigated by a lone RCMP investigator.

Finding No. 11: Overall, the section or unit tasked with member investigations (including their mandates) lack uniformity across the country.

Finding No. 12: In the 28 case files reviewed, the qualifications of the investigators varied greatly. Some had all the major crime and related courses, while others had as few as two years experience in the General Investigation Section.

Finding No. 13: Overall, it was found that the investigations conducted by the Major Crime Unit were focused and completed in a timely fashion, as they had the ability, resources and the time to conduct the investigation. This was not found to be the case when the investigation was assigned to a Detachment Commander or General Duty or GIS member whose heavy workload was not adjusted accordingly.

Finding No. 14: Of the 28 cases reviewed, six of which involved death, an administrative review was only undertaken in four cases: two of which were member-involved shootings (Manitoba (D) & Nunavut (V) Divisions); and two of which were in-custody deaths (Saskatchewan (F) and Alberta (K) Divisions).

Finding No. 15: The CPC found that, overall, the level of response was handled partially or entirely inappropriately (68%). Key concerns related to interviews being undertaken by lone investigators as well as inconsistent referral of cases to the appropriate investigative unit.

Finding No. 16: Of the eight charges laid, three (37.5%) resulted in successful convictions, while five (62.5%) resulted in no convictions.

Finding No. 17: In cases where an immediate response was required, such as member-involved shootings and in-custody deaths, the CPC investigators found that all necessary personnel were dispatched to the incident as soon as possible and practicable.

Finding No. 18: The CPC found that most investigations were completed in a timely manner. The files that took significantly longer to complete were not due to a lack of interest but rather to the heavy workload of the investigator in addition to general hindrances encountered (court dates, difficulty locating witnesses or complainants, employee absence, etc.).

Finding No. 19: Overall, the CPC found that the RCMP investigators were free of bias and were professional and conscientious in their approach to their assignments. It was also found that most subject members and witness members cooperated with the CPC investigators and conducted themselves in a professional manner.

Finding No. 20: After an in-depth review of the randomly selected cases, it was found that in most cases, the appropriate policies were complied with. In the few cases where it was found that some aspects of the related policies were not adhered to, they were minor in nature and did not appear to have any effect on the outcome of the investigation.

CPC Final Report Recommendations:

Recommendation No. 1: Overall, it is the CPC's contention that criminal investigations into members should not be treated the same as any other criminal investigation.

Recommendation No. 2: The CPC recommends that the rank of the primary investigator must be at least one rank higher than that of the subject member.

Recommendation No. 3: In order to reduce the length of time to conduct statutory investigations against RCMP members, it is recommended that member investigations be assigned to a team of (minimum) two members in a specialized investigative unit.

Recommendation No. 4: The RCMP should assign competent senior investigators with a proven track record in court who have completed the appropriate courses (e.g. sexual assault, major crime, interviewing and interrogation techniques and statement analysis); who can effectively interview witnesses with strong analytical skills.

Recommendation No. 5: Workload of members assigned to member investigations should be reassigned or adjusted to prioritize member investigations accordingly.

Recommendation No. 6: Special attention should be paid to enforce the RCMP requirement to consult with the Crown prior to laying any charges against members, given the particular need for independence and impartiality in member investigations. The RCMP should also undertake a review regarding recommendations made to the Crown in cases involving RCMP members.

Recommendation No. 7: Given the sensitivity and transparency required for member investigations, it is recommended that administrative reviews be undertaken in all cases of serious injury, sexual assault or death.

Recommendation No. 8: The RCMP should consider applying the use of the "probe"^{Footnote 2} to lower-end investigations in all divisions.

Recommendation No. 9: The RCMP could consider recommending that the Officer in Charge of the Criminal Operations Section be the appropriate recipient of the probe report in order to determine whether or not a lower-end investigation should proceed to a statutory investigation.

Recommendation No. 10: Historical cases require expertise not typical of most investigators. It is therefore recommended that these types of cases be handled by a specialized unit at the national or regional level.

Recommendation No. 11: Policy guiding criminal investigations of RCMP members should be standardized nation wide. This would allow for the statutory investigations into RCMP members to be conducted uniformly across the country.

Recommendation No. 12: Create the position of National RCMP Member Investigation Registrar responsible to provide the CPC Chair with regular monthly reports for all member investigations undertaken for indictable offences, hybrid offences and summary convictions.

Recommendation No. 13: The RCMP should formalize a memorandum of understanding for every division across the country to ensure consistency in the referral of member investigations to an external police service.

Recommendation No. 14: The RCMP should create an Integrated Manual to specifically address procedures for investigations undertaken by the RCMP into one of its members.

The CPC proposed model for RCMP handling of member investigations:

Based on the CPC findings and recommendations listed above; academic, political and media research; public submissions; as well as interviews with domestic and international bodies, the CPC proposes the following model for implementation.

Recommended RCMP policy and procedural changes

As mentioned previously, there are certain instances where the RCMP should not investigate itself. Below is a chart that delineates that as the seriousness of the member-involved offence increases, a corresponding degree of independence and impartiality in that member investigation is required. The chart below highlights the CPC's contention that as the seriousness of the offence alleged against a member rises, the discretion for the RCMP to respond as it deems appropriate must be removed and mandatory requirements inserted in its place.

Text Version

Mandatory RCMP Action with CPC Role

Type of offence defined	Member offence (by level of seriousness)	Current RCMP handling	Recommended RCMP handling of member investigation
Indictable offences An offence which, in Canada, is more serious than those which can proceed by summary conviction. In many regards, this is the Canadian equivalent to the USA felony. Murder and treason are examples of crimes committed in Canada which would be indictable offences. These crimes are usually tried by federally-appointed judges and carry heavy sentences.	Death Criminal Negligence causing Death (s. 220 CCC)	Discretionary at RCMP Division level	RCMP Mandatory Action: CPC to refer all death cases to external police service or provincial criminal investigative body (no RCMP member involvement) Divisional MOUs activated CPC Observer embedded
	Serious Injury & Sexual Assault Assault with Weapon or Assault Causing Bodily Harm (s. 267 CCC) Sexual Assault (s. 272 CCC)	Discretionary at RCMP Division level	RCMP Mandatory Action: CPC and National Registrar to determine appropriate response from options below for serious injury/sexual assault cases: Referral to external police service or to provincial investigative body through MOU103 Deployment of RCMP HQ mobile critical incident member investigation team CPC Observer embedded

Discretion Retained By The RCMP

Type of offence defined	Member offence (by level of seriousness)	Current RCMP handling	Recommended RCMP handling of member investigation
Hybrid Offences Dual Procedure Offences which Crown can elect to proceed with an indictable offence or a summary conviction.	Assault (s. 265 CCC)	Discretionary at RCMP Division level	RCMP HQ National Registrar retains discretion to determine appropriate response.
Summary Conviction In Canada, a less serious offence than indictable offences for which both the procedure and punishment tends to be less onerous.	Example: Theft under $5,000	Discretionary at RCMP Division level	RCMP HQ National Registrar retains discretion to determine appropriate response. Recommended CPC standard policies and procedures are followed (outlined next).